WT/DS268/RW 
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ANNEX E 
  
QUESTIONS AND ANSWERS 
  
Contents Page 
Annex E-1 Answers of Argentina to Questions of the Panel E-2 
Annex E-2 Answers of the United States to Questions of the Panel E-55 
Annex E-3 Comments of Argentina on the United States' Written Answers to 
 Questions from the Panel to the Parties E-83 
Annex E-4 Comments of the United States on Argentina's Answers to the 
 Questions from the Panel to the Parties E-111 
Annex E-5 Answers of the United States to Argentina's Written Questions E-128 
Annex E-6 Comments of Argentina on the United States' Responses to the 
 Written Questions from Argentina E-136 
Annex E-7 Additional Comments of the United States on Argentina's Answers 
 to Questions 20, 21 and 22 from the Panel to the Parties E-140 
Annex E-8 Additional Comments of Argentina on the United States' 
 Responses to the Panel's Questions to the Parties E-142 
 WT/DS268/RW 
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ANNEX E-1 
 
ANSWERS OF ARGENTINA TO 
QUESTIONS OF THE PANEL 
 
WAIVER PROVISIONS  
  
 BOTH PARTIES  
Q1. The Panel notes that Argentina argues, and the United States does not contest, that the 
US law requires the USDOC to make its ultimate sun set determinations on an order-wide basis.  
Please explain whether this is the case and, if so, cite the relevant provisions of the US law 
(including regulations and/or policy provisions) which require the US investigating authorities 
to make their sunset determinations on an order-wide basis and provide copies thereof. 
 
Argentina's Response to Question 1
 
 
1. The Appellate Body has clarified in a previ ous dispute that the United States could render a 
sunset determination on an "order-wide" basis and that the mere fact of doing so would not be 
inconsistent with US obligations under Artic les 6.10 or 11.3 of the Anti-Dumping Agreement.1  
However, the "as such" violation of the US st atutory and regulatory waiver provisions exist 
independently of, and irrespective of, whether US la w requires that US sunset  review determinations 
be made on an "order-wide" (or "country-wide") basi s or not.  The violation comes from the fact that 
the waiver provisions continue to provide for a statutorily-mandated finding of likelihood for any company that becomes subject to th e statutory waiver provision, either  where there is an "affirmative 
waiver" (as contemplated by the modified regulation)  or where a party "elects not to participate" (as 
provided for in  Section 751(c)(4)(A) of the Tariff Act) , but also does not file an affirmative statement 
of waiver and a statement that it would be likely to dump. 
 2. The Appellate Body found that Section 751( c)(4)(B) and its implementing regulation were 
inconsistent, as such, with US obligations unde r Article 11.3 of the Anti-Dumping Agreement: 
 
Because the waiver provisions require the USDOC to arrive at affirmative company-
specific determinations without rega rd to any evidence on record, these 
determinations are merely assumptions made by the agency, rather than findings 
supported by evidence…. [E]ven assuming that the USDOC takes into account the 
totality of record evidence in making its orde r-wide determination, it is clear that, as a 
result of the operation of the waiver provisions, certain order-wide likelihood 
determinations made by the USDOC will be based, at least in part, on statutorily-
mandated assumptions about a company's likelihood of dumping. In our view, this 
result is inconsistent with the obliga tion of an investigating authority under 
Article 11.3 to "arrive at a reasoned conclu sion" on the basis of "positive evidence". 
Therefore, we uphold the Panel's findings...that Section 751(c)(4)(B) of the Tariff Act 
of 1930 and Section 351.218(d )(2)(iii) of the USDOC Regulations are inconsistent, as 
such, with Article 11.3 of the Anti-Dumping Agreement .
 2 
                                                      
1 Appellate Body Report, US – Corrosion Resistant Steel Sunset Reviews , DS244, paras. 162 
and 212(c)(i). 
2 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , paras. 234-235.  WT/DS268/RW 
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3. Thus, the problem identified by the Appella te Body has not been remedied.  In a USDOC 
sunset review, it is the mere appli cation of Section 751(c)(4)(B), which mandates  a certain outcome – 
and divests the USDOC of discretion as to what result to reach – at least as to any company that is 
subject to the statutory waiver provision, that gives ri se to the violation of Article 11.3.  In this way, 
the mere application of the statutory waiver pr ovision, Section 751(c)(4)(B), in a USDOC sunset 
review will always taint an order-wide determinati on, irrespective of the number of companies that 
are subject to the waiver provision or that are involved in the review.  4. As the Appellate Body found, "certain order-wide likelihood determinations made by the 
USDOC will be based, at least in part, on statutorily-mandated assumptions about a company's 
likelihood of dumping.  In our view, this result is in consistent with the obligat ion of an investigating 
authority under Article 11.3 to 'arrive at a reasone d conclusion' on the basis of 'positive evidence'." 
 ARGENTINA  Q2. The Panel notes Argentina's assertion, in paragraph 156 of its Second Written Submission, that the current US law directs the USDOC to find likelihood for companies that 
"elect not to participate in USDOC's sunset review, but also does not file an affirmative 
statement of waiver and an admission that it  is likely to dump".  The Panel also notes 
Argentina's statement in paragraph 83 of its oral submission that the Tariff Act directs the USDOC to find likelihood for exporters that do not participate and that do not file a statement 
of waiver either.  Finally, the Panel notes the US ' statement in paragraphs 5 and 8 of its oral 
submission that "deemed waivers" have now di sappeared following the deletion of Section 
351.218(d)(2)(iii) of the Regulations.  (a) Is Argentina challenging the US implementation of recommendations and rulings 
relating to "deemed waivers"?  Should the Pa nel understand Argentina's assertion to be 
that the so-called "deemed waiver" provisions of the US law have not been repealed, or 
properly amended, by the United States in the context of implementing the DSB's recommendations and rulings in this case?  Please elaborate. 
 
Argentina's Answers to Question 2(a)
 
 
5. Argentina would initially reiterate that the Panel should determine how the US regulatory and 
statutory waiver provision will operate in order to  determine whether the United States has complied 
with its obligations.3  Argentina's position is that the United St ates has failed to implement the rulings 
and recommendations of the DSB.  Argentina's arguments demonstrate that both the statutory and 
regulatory waiver provisions remain inconsiste nt with US obligations under Article 11.3. 
 6. While the United States eliminated section 351.218(d)(2)(iii) of USDOC's regulation, and 
while now there is no specific USDOC regulation providing for so-called "deemed waivers," the 
violation has not been remedied because the United States has failed to amend or modify Section 751(c)(4) of the Tariff Act.   
 
7. Pursuant to the express terms of Section 751( c)(4)(A) of the Tariff Act, a respondent party 
"may elect not to participate in a review conducted by [USDOC]".  Accordingly, where a party does not participate in a sunset review (even in cases in which it does not provide an "affirmative" 
statement of waiver and "admission" that it will likel y dump in the future), such a circumstance would 
constitute a case where that party has "elect[ed] no t to participate" in a USDOC sunset review – 
pursuant to the express language of th e statute in Section 751(c)(4)(A).  
                                                     
 
3 Panel Report, United States – Anti-Dumping Act of 1916, Complaint by the European Communities , 
WT/DS136/R and Corr.1, adopted 26 September 2000, as upheld by Appellate Body Report, WT/DS136/AB/R, 
WT/DS162/AB/R, DSR 2000:X, 4593, para. 6.51. WT/DS268/RW 
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 8. In these circumstances, the United St ates argues that USDOC would not invoke 
Section 751(c)(4)(B), the statutory wavier provision.  In support of its view, the United States argues 
that it eliminated so-called "deemed waivers".
4  The implementing Federal Register notice explains 
that "the Department will no longer make company-sp ecific findings for companies that fail to file a 
statement of waiver and fail to file a subs tantive response to the notice of initiation".5  T h e  
implementing notice further indicates that "Section 751(c)(4)(B) of the Act only mandates an affirmative company-specific likelihood finding as a consequence of a party electing to waive its 
participation in the sunset review."
6  Comparing the modified regulation to the express wording of the 
statute, however, shows that this is not correct. 
 
9. Notwithstanding USDOC's stated intention as to how it would implement the revised regulation, the express terms of the statute demonstrate that USDOC's interpretation of 
Section 751(c)(4)(A) is inconsistent  with its plain language.  The statute mandates a company-specific 
likelihood determination for any company that " elect[s] not to participate " in a USDOC sunset 
review.  Subsection (A) of Section 741(c)(4) of the Tariff Act establishes an option that is available 
for USDOC sunset reviews (i.e., that a party may "el ect not to participate").  This subsection also 
establishes who can make such an electi on (i.e., respondent interested parties).
7  Subsection (B) 
explains the "effect" or consequence of a waiver (i.e., non-participation) by  a respondent interested 
party.  The consequence is a statutorily-mandated finding of likely dumping for that company.  The 
terms of the statute thus direct a company-specific finding of likelihood for any respondent interested 
party that elects not to participate in the USDOC sunset review. 
 10. Consequently, in the circumstance where a respondent party does not participate in a sunset review, but also does not provide an "affirmative" statement of waiver, the terms of Section 751(c)(4) 
mandate that USDOC make a finding that dumping woul d be likely for that party.  The fact that 
Section 751(c)(4)(A) refers to an "elect[ion] not to participate" and does not use the same phrase as in 
Section 751(c)(4)(B) ("a review in which an inter ested party waives its participation"), does not 
change the analysis.  The title of the Section 751(c)(4) is "Waiver of pa rticipation by certain interested 
parties".  Subsections (A) and (B) are both integral  to the operation of Section 751(c)(4) and these 
subsections must be read together in determin ing how Section 751(c)(4) operates.  Subsection (A) 
must be read so as to have some meaning.
8 
 
11. As Argentina has argued, under US law, a US  statute will prevail over a US regulation where 
the two measures are inconsistent.9  In addition, although an agency such as the USDOC may 
promulgate regulations pu rsuant to authority granted by Congress, that agency cannot through the 
promulgation of a regulation confer on itself any gr eater authority than that conferred under the 
governing statute.10  Accordingly, where the statute mandates a specific action (making an affirmative 
likelihood determination), the statute cannot be overridden by USDOC's modification of the 
corresponding regulation.  12. Consequently, notwithstandi ng an expression of how USDOC would implement the waiver 
provisions or regulatory text to the contrary, the operation of the statute nonetheless continues to 
operate in a manner inconsistent with US WTO obl igations.  Section 751(c)(4)(B) directs a company-
specific finding of likelihood for any respondent interested party that elects not to participate in the 
                                                     
 
4 US First Submission, para. 14. 
5 Procedures for Conducting Five-Year ("Sunset") Reviews for Antidumping and Countervailing Duty 
Orders:  Final Rule , 70 Fed. Reg. 62,061, 62,062 (28 Oct. 2005) (ARG-12). 
6 70 Fed. Reg. at 62,063 (ARG-12). 
7 This is the meaning of the phrase to "An interest ed party described in section 1677(9)(A) or (B)." 
8 See Argentina's Second Submission, para. 163 and note 160. 
9 See Argentina's Second Submission, para. 164 and note 161.   
10 See Argentina's Second Submission, para. 164 and note 162.  WT/DS268/RW 
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USDOC sunset review, and is therefore incons istent with Article 11.3 of the Anti-Dumping 
Agreement.  13. In addition, there continues to be a violation of Article 11.3 even in the case of an "explicit 
waiver" (which includes the exporter's admission that  it would be likely to dump upon revocation), the 
statutorily-mandated finding for the exporter continues to violate the Agreement.  The statute permits 
no weighing of other evidence:  once the waiver provision of the statute (Section 751(c)(4)(B)) is triggered, the USDOC "shall" make an affirmative determination with respect to that exporter.  
Because the obligation to arrive at  a "reasoned conclusion" will always
 require the authority to 
consider all of the evidence, and because any ev idence inconsistent with the exporter's admission 
would be disregarded under the statute, the waiver provision remains inconsistent with Article 11.3. 
 
(b) If not, would it be an accurate characteri zation of Argentina's claim to stipulate that 
Argentina is only taking issue with the so-c alled "explicit waiver" provisions of the US 
law in these Article 21.5 DSU proceedings?  If so, would Argentina agree that the 
current US law does not contain any provision  that deems exporters to have waived 
their right to participate in sunset reviews  for failure to provide a full substantive 
response to the USDOC's questionnaire or fo r any other reason?  Please elaborate. 
 
Argentina's Answers to Question 2(b)  
 
14. Argentina's claim is that the United States fail ed to bring the statutory and regulatory waiver 
provisions into conformity with the rulings a nd recommendations of the DSB, and with US WTO 
obligations.  As Argentina has argued, the violat ion comes from the application of the statutory 
waiver provision, Section 751(c)(4)(B), in a sunset review.  Argentina has argued that this provision is 
triggered whenever a party "elect[s] not to particip ate" in a USDOC sunset review, as provided for in 
Section 751(c)(4)(A).  This "election," as contemplated by the statute, can happen in at least two 
ways.  15. First, a party may "elect not to participate"  by filing an affirmative waiver and making a 
statement that it would be likely to dump.  Th is is the route envisioned by the USDOC and as 
provided for in its revised waiver regulation.  Arge ntina's position is that application of the waiver 
statute, Section 751(c)(4)(B), even in this inst ance, is a violation of Article 11.3 because once the 
statute is triggered, the USDOC loses all discretion as to that company.  The Department is required to 
base its likelihood determination, at least in part (for a company is subject to the waiver provision), pursuant to statutory mandate rather than pursuan t to a reasoned-decision making process as to what 
would be likely for that company.  This st atutorily-mandated finding renders the order-wide 
determination inconsistent with Article 11.3.    
 16. Second, a party may "elect not to participate" and it may not file an affirmative statement or a 
statement that it would be likely to dump.  The United States argues that USDOC would not invoke Section 751(c)(4)(B), the statutory wavier provision because it has eliminated  the so-called "deemed 
waiver" regulation.
11  However, as Argentina has argued, the US interpretation of 
Section 751(c)(4)(A) is inconsistent with the plain language of the statute.  The statute mandates a 
company-specific likelihood determination for any company that " elect[s] not to participate " in a 
USDOC sunset review.  Subsection (A) of Section 741(c)(4) of the Tariff Act establishes an option 
that is available for USDOC sunset reviews (i.e., that  a party may "elect not to participate").  This 
subsection also establishes who can make such an  election (i.e., respondent interested parties).12  
Subsection (B) explains the "effect" or conseque nce of a waiver (i.e., non-participation) by a 
respondent interested party.  The consequence is a statutorily-mandated finding of likely dumping for 
that company.  The terms of the statute thus dir ect a company-specific finding of likelihood for any 
                                                      
11 US First Submission, para. 14. 
12 This is the meaning of the phrase to "An interest ed party described in section 1677(9)(A) or (B)." WT/DS268/RW 
Page E-6  
 
respondent interested party that elects not to partic ipate in the USDOC sunset review.  Again, this 
statutorily-mandated finding renders the order-wide determination inconsiste nt with Article 11.3. 
 17. Consequently, because Secti on 751(c)(4)(B) directs a company-specific finding of likelihood 
for any respondent interested party that "elect[s] not to participate" in the USDOC sunset review 
(whether by virtue of an affirmative statement of wa iver or simply by takings no action in the review), 
the waiver provisions remain inconsistent with  Article 11.3 of the Anti-Dumping Agreement. 
 UNITED STATES  Q3. The Panel notes that Section 751 (c)(4)(B) of the Tariff Act of 1930 requires the USDOC to find likelihood with respect to companies whic h waive their right to participate.  The Panel 
also notes that Section 218(d)(2)(ii) of the Regula tions stipulate that "every statement of waiver 
must include a statement indicating that the resp ondent interested party waives participation in 
the sunset review before the Department; a statement that the respondent interested party is 
likely to dump". 
  Please explain, in light of the above-refer enced provisions of the US law and its other 
provisions that may also be relevant, what the US law stipulates with respect to respondents that do not respond at all to the USDOC's que stionnaire and those that provide incomplete 
responses.  Specifically, please explain whether and how the US law also directs the USDOC to 
find likelihood for these exporters. 
 Q4.  (a) Please explain generally the relevance of the company-specific finding of likelihood 
under Section 751 (c)(4)(B) to the USDOC's order-wide determination. 
 (b) Given the mandate of Section 751 (c)(4)(B) of the Tariff Act to find likelihood for 
companies that waive participation, would it be accurate to say that the USDOC has to 
find likelihood in its ultimate order-wide determination in every sunset review where the USDOC finds likelihood for individual companies that waive participation?   
 
Q5. Please explain whether there has been any sunset review where the USDOC found 
likelihood for individual exporters by virtue of Section 751 (c)(4)(B) of the Tariff Act and found 
no likelihood on an order-wide basis.  If so, please provide a copy of the USDOC's final determination in such reviews. 
 
Q6. The Panel notes that Section 751(c)(4) of the Tariff Act of 1930 provides, in relevant part:    (4) Waiver of participation by certain interested parties  
 (A) In general 
  An interested party described in sectio n 1677(9)(A) or (B) of this title may elect 
not to participate  in a review conducted by the administering authority under this 
subsection and to participate only in  the review conducted by the Commission 
under this subsection. 
  (B) Effect of waiver   In a review in which an interested party waives
 its participation pursuant to this 
paragraph, the administering authority sha ll conclude that revocation of the order  WT/DS268/RW 
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or termination of the investigation would be likely to lead to continuation or 
recurrence of dumping or a countervailable subsidy (as the case may be) with 
respect to that interested party.13  (emphasis added) 
 
(a) Please explain whether electing not to  participate within the meaning of 
subparagraph (A) constitutes a waiver within the meaning of subparagraph B. 
 (b) How does an exporter elect not to particip ate within the meaning of subparagraph A?  
Does remaining silent, i.e. not submitting any response to the USDOC's questionnaire, 
constitute an election not to participate with in the meaning of subparagraph (A)?  If so, 
does this constitute a waiver fo r the purposes of subparagraph B? 
 
BOTH PARTIES 
 
Q7. Under what circumstances would a signed  waiver statement constitute a sufficient 
evidentiary basis for an affirmative likelihood determination?  Would your response depend on 
the circumstances of a given sunset review?  For example, would your response differ in relation to: (i) a review in which the only exporter subm its a signed waiver statement; (ii) a review in 
which, of the 20 exporters involved, 10 submit a signed waiver statement and 10 participate cooperatively; (iii) a review in which, of the 20 exporters involved, 1 submits a signed waiver statement and 19 remain silent?  How would the company-specific conclusions of likelihood 
with respect to exporters that waive their right to participate (by signing a statement of waiver) 
in these scenarios be reflected in an ultimate order-wide determination? 
 
Argentina's Answer to Question 7
 
 
18. Argentina would initially observe that the Panel's question itself highlights the problem 
attendant with the loss of US discretion – by opera tion of the statutory mandate to make – to assess 
the probative value of evidence – whether an "admi ssion" of likely dumping or the inference to draw 
from a company that elects not to participate but also  does not file an affirmative statement of waiver. 
 19. The fact is, depending upon the particular f acts of a given case, a signed waiver statement 
may or may not be probative for a particular co mpany, and its probative value on the overall order-
wide determination can vary.  Yet, in any case in which the statutory waiver provision applies, the 
USDOC must – pursuant to the mandate of the statut e – find that dumping would be likely to continue 
or recur for that company.  Again, the terms of the statute mandate
 a likely dumping finding for a 
company either where there is an "affirmative waiver" by that company (as contemplated by 
USDOC's modified waiver regulation), or where a co mpany "elects not to participate," as provided for 
in 751(c)(4)(A), but also does not file an affirmative statement of waiver.  20. Thus, the problem in all of the scenarios outlined by the Panel' s question, is that the USDOC 
must find that dumping would be likely for a company once the statutory waiver provision is triggered.  At that point, the USDOC has zero discretion
 for that particular company to reach any 
result other than a affirmative determination for that company.  As the Appellate Body stated, it is the 
substitution of a statutorily-mandated finding for reasoned analysis and decision making by the 
authority that would taint the orde r-wide determination in such a case.14 
 
Q8. The Panel notes that Section 751(c)(4) of  the Tariff Act does not define the term 
"waiver".  The Panel also notes that Section 3 51.218(2)(ii) of the Regulations states that a 
statement of waiver "must include a statement i ndicating that the respondent is likely to 
dump." 
                                                      
13 Exhibit ARG-33 at 1152. 
14 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , paras. 234-235. WT/DS268/RW 
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 Can this, in your view, be interpreted to me an that the Regulations nullify, or limit the 
scope of, the Statute in so far as the Statute refers to waiver. 
 
Argentina's Answer to Question 8
 
 
21. Under US law, the USDOC cannot issue a regulati on that is inconsistent with a US statute.  
Nor is it permissible under US law for the USDOC to  issue a regulation that attempts to limit the 
scope of application of a US statute.  
22. The terms of Section 751(c)(4)(B) require the USDOC to make a  company-specific 
likelihood determination for any company that "may  elect not to participate" in a USDOC sunset 
review.  As Argentina has argued, under US law, a US statute will prevail over a US regulation where 
the two measures are inconsistent.
15  In addition, although an agency such as the USDOC may 
promulgate regulations pursuant to authority gr anted by Congress, that agency cannot through 
promulgation of a regulation modify or repeal a statute.16 
 23. Thus, under US law, USDOC cannot evade th e statutory requirement (which mandates a 
company-specific likelihood determination for any co mpany that elects not to participate in a USDOC 
sunset review), by modifying the implementing regulation in a manner that reduces the reach of the statute to include only a subclass of parties that elect  not to participate in sunset reviews (i.e., those 
that file affirmative statements of waiver). 
 24. Finally, and in order to be very clear, Arge ntina reiterates that the violation comes from the 
operation of Section 751(c)(4)(B) in a USDOC sunset  review.  When that provision is triggered – 
either where there is an "affirmative waiver" by that company (as contemplated by USDOC's 
modified waiver regulation) or where a company "elects not to participate" (as provided for in 
751(c)(4)(A)) (irrespective of whether it files an a ffirmative statement of waiver) – the terms of 
Section 751(c)(4)(B) mandate
 a likely dumping finding for a company.  A statutorily-mandated 
finding (which divests the authority of all discret ion), even if for only one company and even if 
triggered by a purported admission, is inconsiste nt with Article 11.3 because of the authority's 
obligation in an Article 11.3 review to arrive at a "reasoned conclusion" based on a consideration and 
weighing of all the evidence.17  
  
FACTUAL BASIS OF THE USDOC's SECTION 129 DETERMINATION
 
  
ARGENTINA  
Q9. The Panel notes Argentina's arguments re garding the new factual basis developed by 
the USDOC in its Section 129 Determination.  Is it Argentina's view that Article 11.3 of the Anti-dumping Agreement ("Agreement") precludes an investigating authority from developing 
new facts in order to comply with the DS B recommendations and rulings regarding the 
inadequacy of the factual basis of its sunset de terminations?  Please elaborate on the temporal 
and substantive considerations involved in gath ering "new facts" in light of the notion of 
implementation of the DSB recommendation s and rulings embodied, among others, in 
Articles 19, 21, and 22 of the Dispute Settlement Understanding ("DSU").  How should an 
investigating authority accommodate the "p rospective nature" of sunset reviews under 
Article 11.3 in the process of gathering "new facts" in the course of implementation?   
                                                     
 
15 See Argentina's Second Submission, para. 164 and note 161. 
16 See Argentina's Second Submission, para. 164 and note 162. 
17 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , paras. 234-235.  WT/DS268/RW 
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 Argentina's Answer to Question 9
 
 25. Articles 11.3 and 11.4 of the Anti-Dumping Agre ement preclude an investigating authority, in 
a domestic proceeding seeking to comply with the rulings and recommendations of the DSB arising 
out of an finding that it violated Article 11.3 of  the Anti-Dumping Agreement, from developing a new 
factual basis to support its Article 11.3 determina tion, where the evidence required to support its 
original Article 11.3 determination was not developed at the time of the original Article 11.3 review.  
The investigating authority is obliged to initiate  the requisite "review" and gather the necessary 
positive evidence in order to make the requisite "determination" required by Article 11.3 of the 
Anti-Dumping Agreement prior to
 the expiry of five years following the imposition of the 
antidumping measure.  For example, assume that an authority continues the measure beyond five years, but does nothing more than initiate an Article 11.3 review in a timely manner.  In that review, 
the authority develops no
 evidence at all.  In su ch a case, the obligations of Articles 11.3 and 11.4 to 
conduct a  "review" and make a "determination" pr ior to continuing the measure cannot be satisfied 
by the Member – it has missed its opportunity to make a "determination" in the review initiated at that 
time.  26. The "review" and "determination" under Article  11.3 in this regard must have had several 
characteristics.  The determination needed to be a "prospective determination," requiring a "forward-
looking analysis".
18  USDOC needed to take an "active" rath er than a "passive" role in developing and 
assessing the information.19  The USDOC was required to "act with an appropriate degree of diligence 
and arrive at a reasoned conclusion on the basis of information gathered as part of a process of 
reconsideration and examination".20  The requirement to make a "determination" concerning 
likelihood precluded USDOC from simply  assuming that likelihood exists.21  Finally, USDOC was 
required to assess the information before it objectively a nd to have a sufficient factual basis to allow it 
to draw reasoned and adequate conc lusions concerning such likelihood.22 
 27. Because the anti-dumping duty order on OCTG  from Argentina was imposed in August 1995, 
the United States had an obligation to terminate th e measure before August 2000 unless it adhered to 
the requirements for invoking the exception (continuati on of the measure), as set forth in Articles 11.3 
and 11.4.  Thus, in order to invoke the excep tion and to extend the measure beyond August 2000, the 
US authorities were required to initiate a "review"  before "that date", (i .e., August 2000) and to 
"determine" that "expiry of the duty would be lik ely to lead to continuation or recurrence of 
dumping".  28. This is fully consistent with  the Appellate Body's clarification of the Article 11.3 obligation.  
In US – Corrosion-Resistant Steel Sunset Review , the Appellate Body provided authoritative guidance 
on the obligations imposed on Members during a sunset  review by Article 11.3.  It began by noting 
that:  
Article 11.3 imposes a temporal limita tion 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: firs t, that a review be initiated before 
the expiry of five years from the date of the imposition of the duty; second, that in the 
                                                     
 
18 Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-
Resistant Carbon Steel Flat Products from Japan , WT/DS244/AB/R, adopted 9 January 1994, paras. 104-105 
(original emphasis) (" US – Corrosion-Resistant Steel Sunset Review ") 
19 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 111. 
20 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 111. 
21 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , paras. 104-105, 111. 
22 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , paras. 104-105, 111. WT/DS268/RW 
Page E-10  
 
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 woul d be likely to lead to continuation or 
recurrence of injury . If any one of these conditions is not satisfied, the duty must be 
terminated.
23 
29. Article 11.4 of the Anti-Dumping Agreemen t provides that the review conducted under 
Article 11.3 "shall be carried out e xpeditiously and shall normally be concluded within 12 months of 
the date of initiation of the review".  In clarifying  Article 11.4 of the Agreement, the Appellate Body 
expressly recognized that the "duty" may "continue  while the review is underway" constitutes an 
"additional exception" – and in effect, the sole ex ception – to the requirement that anti-dumping duties 
will be terminated after five years, in the absence of compliance with the requirements of Article 11.3: 
 
Article 11.3 states that, notwithstanding the provisions of Articles 11.1 and 11.2, Members "shall" terminate an anti-dumping duty "unless" the authorities make an affirmative likelihood determination in a s unset review.  This confirms that the 
mandatory rule in Article 11.3 applies in addition to, and irrespective of, the 
obligations set out in the first two paragraphs  of Article 11.  This also suggests to us 
that authorities must conduct a rigorous examination in a sunset review before the exception (namely, the continuation of the duty) can apply. In addition, our view of the exacting nature of the obligations im posed on authorities under Article 11.3 is 
supported by a consideration of the implica tions of initiating a sunset review.  The 
last sentence of Article 11.3 allows the rele vant duty to continue while the review is 
underway, and Article 11.4 contemplates that the review process may take up to one 
year.  These provisions create an additiona l exception to the requirement that anti-
dumping duties will be terminated after five  years, permitting a Member to maintain 
the duty for the period during which the revi ew is ongoing, regardless of the outcome 
of that review.  This, too, suggests that the drafters of the Anti-Dumping Agreement 
saw the sunset review as a rigorous process th at can take up to one year, involving a 
number of procedural steps, and requiring an appropriate degree of diligence on the 
part of the national authorities.
24 
30. The Appellate Body's reaffirmation of the te mporal obligations in Article 11.3 identified in 
the preceding paragraphs is not inconsistent with the Appellate Body's pronouncements in OCTG 
from Mexico , where the Appellate Body stated that  a WTO-inconsistent  determination under 
Article 11.3 would not necessarily lead to termination immediately : 
 
The fact that the USDOC acted inconsistently  with the requirements of Article 11.3 in 
its likelihood-of-dumping determination does not necessarily  imply that the 
underlying anti-dumping duties must be terminated immediately .  The mere fact that 
Article 11.3 sets a temporal limit for termination of an anti-dumping duty, in the absence of a review leading to a WTO-consis tent determination unde r that Article for 
its continuation, does not affect the other provisions of the DSU governing the implementation of the recommendations and rulings of the DSB, including, inter alia , 
the means of implementation and the reas onable period of time accorded to the 
implementing Member for implementation.
25  
                                                      
23 Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-
Resistant Carbon Steel Flat Products from Japan , WT/DS244/AB/R, adopted 9 January 1994, paras. 104-105 
(original emphasis) (" US – Corrosion-Resistant Steel Sunset Review "). 
24 Appellate Body Report, US - Corrosion-Resistant Steel Sunset Review , para. 113. 
25 Appellate Body Report, US – OCTG from Mexico , para. 187 (emphasis added).  WT/DS268/RW 
 Page E-11 
 
 
31. The Appellate Body referred to the "fact" that Article 11.3 sets a temporal limit for 
termination of an anti-dumping duty, in the abse nce of a review leading to a WTO-consistent 
determination under that Article fo r its continuation.  The Appellate  Body explicitly recognized, once 
again, the temporal requirements of Article 11.3.  
32. Regarding the provisions of the DSU, as the A ppellate Body also recognized, its clarifications 
of the obligation of Article 11.3 did not affect  the other provisions of the DSU governing the 
implementation of the recommendations  and rulings of the DSB, including the provisions identified in 
the Panel's question – Articles 19, 21, and 22.  At the same time, it must be emphasised that a Member's substantive obligations under the covere d agreements do not change merely because that 
Member is involved in a WTO dispute, and certain rights and obligations of the DSU are implicated 
by virtue of the WTO dispute settlement process.  These DSU rights include, most notably, the right 
of the implementing Member to an RPT, and the right of the Member to chose the means of implementation.  
33. Article 19 of the DSU provides: 
 
1. Where a panel or the Appellate Body c oncludes that a measure is inconsistent 
with a covered agreement, it shall recomme nd that the Member concerned bring the 
measure into conformity with the agreemen t.  In addition to its recommendations, the 
Panel or the Appellate Body may suggest ways in which the Member concerned 
could implement the recommendations. 
2. In accordance with paragraph 2 of  Article 3, in their findings and 
recommendations, the Panel and the Appellate  Body cannot add to or diminish the 
rights and obligations provided in the covered agreements. 
34. The Article 19.2 admonition that "[i]n accordan ce with paragraph 2 of Article 3, in their 
findings and recommendations, the Pa nel and Appellate Body cannot add to or diminish the rights and 
obligations provided in the covered agreements" is important in this case.  Any rulings by this Panel 
in this compliance proceeding that would give th e United States, now in 2006, the opportunity to 
conduct yet another Section 129 proceeding in order to comply with the obligations that first attached in 2000, and which the United States once again failed to discharge in 2005, would violate both aspects of DSU Article 19.2. 
 
35. First, any such ruling would serve only to fu rther erode Argentina's already impaired rights 
under Article 11.3 to termination of the measure after five years in the absence of compliance with the 
requirements of Articles 11.3 and 11.4.  Second, fi nding that Article 11.3 permits the United States 
with an opportunity to establish the requisite factual basis during the RPT in order to support the 
WTO-inconsistent de termination from 2000 would cons titute an addition to the limited US right  under 
Article 11.3 to invoke the provision's exception to the prin cipal obligation to terminate the measure  
(and thereby continue anti-dumping duties on OCTG from Argentina) only if it had first complied 
with the substantive obligati ons of Articles 11.3 and 11.4 of the Anti-Dumping Agreement . 
 36. The provisions of Article 21 of the DSU are not  inconsistent with Argentina's view of the 
substantive and temporal obliga tions of Article 11.3 and 11.4 of the Anti-Dumping Agreement.  
Article 21.1 states that "prompt compliance with r ecommendations or rulings of the DSB is essential 
in order to ensure effective resolution of disputes to the benefit of all Members".  This provision is 
fully consistent with Argentina's position, as "prompt compliance" in this case is "essential" in order 
to ensure that Argentina's rights under Article 11.3 are not wholly diminished in light of the US 
further to demonstrate at the end of the RPT that it satisfied the requirements for invoking the limited 
exception in Article 11.3.  WT/DS268/RW 
Page E-12  
 
37. Further, DSU Article 21.3 provides, inter a lia, that "[i]f it is impracticable to comply 
immediately with the recommendations and rulings [o f the DSB], the Member concerned shall have a 
reasonable period of time in which to do so".  This provision recognizes that it is the right of the Member to determine how best to bring itself in to conformity.  At the same time, however, as 
Argentina has argued during this proceeding, the manner in which USDOC conducted the 2000 
review necessarily affects what the United Stat es could do during the RPT to bring itself into 
compliance with its obligations in 2005.  Argentin a has observed that if USDOC had been active, had 
properly established a sufficient evidentiary basis, bu t had failed to explain adequately its decision, it 
might have been able to bring itself into complianc e with its obligations in 2005 by clarifying that 
information, or further explaining its reasoning.  In such a case, the authority would have satisfied its 
obligation to be active rather than passive, and its obligation to develop a sufficient evidentiary basis 
in the review that preceded the continuation of the measure.  In other words, the subsequent act of 
clarifying the evidence or the reasoning that formed th e basis of the determination might not affect the 
substance of the authority's obligation.  
38. Put simply, during the RPT, United States w as permitted to clarify, based on the evidence 
established in the original sunset review, why its 2000 sunset determination is consistent with US 
obligations under Article 11.3.  It was re quired to do this, however, within the RPT. 
 39. Argentina would again reiterate that paragraph 187 of the decision of the Appellate Body in 
US – OCTG from Mexico  is not inconsistent with Argentina' s interpretation of the obligations of 
Article 11.3, and can be fully reconciled with  the rights a Member has under the DSU.  
 40. The Appellate Body stated that:  
The fact that the USDOC acted inconsistently  with the requirements of Article 11.3 in 
its likelihood-of-dumping determina tion does not necessarily imply that the 
underlying anti-dumping duties must be terminat ed immediately.  The mere fact that 
Article 11.3 sets a temporal limit for termination of an anti-dumping duty, in the absence of a review leading to a WTO-consis tent determination unde r that Article for 
its continuation, does not affect the other provisions of the DSU governing the implementation of the recommendations and rulings of the DSB, including, inter alia , 
the means of implementation and the reas onable period of time accorded to the 
implementing Member for implementation
26   
41. In the present case, however, the United States has already exercised certain of its right under 
the DSU.  It has exercised its right to an RPT, and it has chosen the "means of implementation".  
Thus, the part of paragraph 187 of the Appellate Body's Report that referred to DSU rights no longer 
applies, as the United States already has exercised its rights under the DSU.  Therefore, if this Panel 
finds that the United States is not in compliance,  the consequences are – and should be – that the 
United States must terminate the measure – or risk  being in perpetual non-compliance.  There will be 
no new RPT and there is no basis for it to conduct another Article 11.3 determination.  In fact, the 
United States itself recognized this very point:    
It would be unfair for the United States, which was under no obligation to take an 
action with respect to the volume analysis, to find out for the first time in an Article 21.5 proceeding that the Panel cons iders that analysis deficient.  The 
United States could then be faced with a request for authorization to suspend 
                                                     
 
26 Appellate Body Report, Appellate Body Report, United States – Anti-Dumping Measures on Oil 
Country Tubular Goods (OCTG) from Mexico , WT/DS282/R, adopted 28 November 2005, para. 187.  WT/DS268/RW 
 Page E-13 
 
 
concessions, with no reasonable period of time to bring the measure into compliance.
27   
42. In these circumstances, th e obligation under Article 11.3 requires that the United States 
immediately revoke the illegal order, in the absen ce of a WTO-consistent determination, is the 
obligation with which the United States must comply. 
 
43. Such a result would be in complete accord with Article 22 of the DSU, which recognizes that 
"full implementation of a recommendation to brin g a measure into confor mity with the covered 
agreements" is preferred to both compensation and suspension of concessions.  Article 22 reinforces a 
fundamental principle of WTO dispute settlement, which is enshrined in DSU Article 3.7, which 
states that "the first objective of the dispute settleme nt mechanism is to secure the withdrawal of the 
measures concerned if these are found to be inconsis tent with the provisions of any of the covered 
agreements".  44. In the 2005 Section 129 proceeding, the USDOC developed a new factual basis to support the 
WTO-inconsistent determination it made in 2000.  The USDOC acted inconsistently with 
Articles 11.3 and 11.4 of the Anti-Dumping Agreemen t by developing new factual information to 
support its 2000 likelihood of dumpi ng determination, where none of the evidence required to support 
such a determination was devel oped in 2000, the time when USDOC was obliged to conduct the 
requisite "review" and gather the necessary posit ive evidence in order to make the requisite 
"determination" required by Articles 11.3 and 11.4 of the Anti-Dumping Agreement.  
 
45. Finally, as to the last part of the question re garding the prospective nature of the Article 11.3 
review, this further supports Ar gentina's view.  The Article 11. 3 review must be prospective
, which 
means that a decision must be made at a specific time as to what is likely to o ccur in the future.  This 
is directly contrary to how the USDOC proceeded in rendering its determina tion to bring itself into 
compliance with its Article 11.3 obligations.  Essentially, the USDOC undertook to conduct a 
retrospective review of the period 1995-2000, wh ile selectively using information and knowledge it 
gained subsequent to the sunset review, i.e., after  2000.  Therefore, not only did the USDOC develop 
a different evidentiary basis  than had been established in  the 2000 review, the USDOC also 
selectively  used information and knowledge it obtaine d after that sunset review, and which 
information related to the period after 2000, to take positions and to dr aw inferences in the 
Section 129 proceeding that were predis posed against the Argentine exporters. 
 46. If the authority does not develop a sufficient evid entiary basis in order to make its prospective 
determination in the review initiated "at that time, " it will violate its Article 11.3 obligation, as the 
United States has done here.  If the Member then tr ies to achieve compliance by developing, for the 
first time, a different evidentiary basis in order to ju stify its previous decision to continue the measure, 
it is no longer making a prospective determination of what is likely to occur.  Rather, it is, at best, 
offering a new factual basis to justify a decision th at it made in the past on the basis of different 
evidence.  This is not consistent with the pr ospective nature of the Article 11.3 review and 
determination.  
USDOC's LIKELIHOOD DETERMINATION
 
 
UNITED STATES  
Q10. 
 
(a) The Panel notes that the USDOC asked the Argentine exporters to submit their 
consolidated and unconsolidated financial statements for the 1996-2000 period, as well 
                                                     
 
27 US Second Submission, para. 31. WT/DS268/RW 
Page E-14  
 
as to provide information relating to their costs and the volume of their shipments to the 
United States in the period of review.
28 
 
 Please explain for what purpose the USDOC so ught the mentioned information.  More 
specifically, please explain whether the USDOC in tended to, and the extent to which it did, 
determine whether these exporters actually dumpe d in the period of review, and how this 
relates to the obligations under Articles 11.3 and/or 2.1 of the Agreement.  Please explain how exactly the USDOC intended to, and the extent to which it did,  base its determination regarding 
the existence of dumping on the costs of the exporters, citing any record evidence supporting 
your response. 
 
(b) If the USDOC intended to determine whether the Argentine exports to the United States 
were dumped during the period of review, please explain why the USDOC did not seek information relating to these companies domestic  sales prices and their export prices to 
the United States.  Please explain how the USDOC intended to, and the extent to which 
it did, determine whether these compani es dumped in the past on the basis of 
information that it sought from them, i.e. their costs and the volume of their shipments 
to the United States, citing any record evid ence supporting your response. Please explain 
how this relates to the obligations under Ar ticles 11.3 and/or 2.1 of the Agreement. 
 Q11. 
 
(a) Please explain to what extent, if at all, an investigating authority is bound by the 
definition of dumping found in Article 2.1 of the Agreement in a determination regarding the existence of dumping in the period of review in a sunset review under 
Article 11.3 of the Agreement.  In other words, in your view, can an investigating 
authority determine the existence of dumping without having regard to the normal 
value and export price of the exporter(s) under review?  
 (b) In your view, is there a difference between calculating the margin of dumping for an 
exporter and determining the existence of dumpi ng for that exporter?  In other words, 
can an investigating authority determine that an exporter dumped in a given period in 
the past without calculating a margin of dumping or relying on a margin already 
calculated in the past?  If your response is  in the affirmative, please explain whether 
such a determination can be made without having regard to the two components of 
dumping, i.e. normal value and export price,  set out in Article 2.1 of the Agreement. 
 
(c) On what basis could an investigating authority properly find affirmative likelihood of 
continuation or recurrence of dumping other than  with regard to the existence of 
dumping? 
  Please elaborate on the basis of the relevant provisions of the Agreement.  
Q12. The Panel notes Argentina's claim regardi ng the comparison the USDOC made between 
Acindar's export prices and the average transa ction price (by weighted average value) that 
prevailed in the US market for the subject pr oduct.  The Panel also notes that the USDOC 
inferred from this comparison the conclusion th at Acindar was likely dumping in the period of 
review. 
 
(a) Please explain the legal basis under the Agreement for basing a determination of 
dumping, be it likely or actual, on a comparison of an exporter's export price with the 
                                                     
 
28 USDOC's questionnaire (Exhibit ARG-13).  WT/DS268/RW 
 Page E-15 
 
 
average transaction price (by weighted average  value) that prevails in the country of 
imports for the subject product. 
 
BOTH PARTIES 
 (b) The Panel notes Argentina's assertion th at the USDOC ignored certain factors that 
affected this comparison, such as differences in the physical characteristics of the products compared, the levels of trade at which the comparison was made, as well as 
differences relating to transportation costs. 
 
Please explain in detail and by referring to the relevant parts of the record, whether any 
of these factors were known to the USDOC in the Section 129 proceedings at issue and, if so, 
whether this was taken into account. 
 
Argentina's Answer to Question 12(b)
 
 
47. These factors were known to the USDOC in S ection 129 proceedings.  The Panel can confirm 
this by reviewing the following portions of the record:  
• In its initial response to the Department 's questionnaire (the 30 November 2005 
response appearing as ARG-15), Siderca explained the effect of physical characteristics on the costs and prices of OC TG.  On page 4, Siderca explained: 
While Siderca has reported the cost data for product categories defined 
by the Department, Siderca would like to stress that the data for such 
broad product groupings is of limited value from a cost and 
commercial point of view.  As the Department knows, unit product 
costs for carbon and alloy OCTG depends upon the precise physical 
characteristics of each specific product (outside diameter, wall 
thickness, length), the precise type of steel used, the precise type of threading used, and other customer requirements (such as testing, markings, coatings, etc.).  To illustrate the point, Siderca includes in Attachment 6 a listing of production capabilities at its production facilities and the corresponding product characteristics.  As the list 
demonstrates, the number of possible combinations of specific product 
characteristics is extremely large.  This is true even within the ten 
product categories defined by the De partment, as there are literally 
thousands of possible product combinations within each of the ten categories.  The production cost and commercial values for the 
different products differ, although no t always in the same proportion, 
as some products can be sold at a higher profit than others. 
• Attachment 6 referenced in the passage quot ed above contained a list of the physical 
characteristics within Siderca's OCTG production range.  ( See the final pages of 
ARG-15.)  The outside diameters range from 1.315 inches to 10¾ inches, and the steel grades range from the most basic J and K grades to numerous highly specialized 
alloy grades.  In addition, a number of specific connections are identified in the 
attachment, as well as different range lengths and special customer requirements that can be requested. 
• In Attachment 2 of Siderca's response (A RG-15), Tenaris' Regional CFO explained: 
6. Even if we had the data or were able to reconstruct it, the 
data would be of limited value because of the product (or product category) definition.  The questionnaire does not request product-WT/DS268/RW 
Page E-16  
 
specific data.  Rather, the Department  has identified what can best be 
described as large categories of products without any specification of the essential dimensions that define tubular products for cost purposes, such as outside diameter, wall thickness, range, and steel grade. 
. . . 
 7. Even if Siderca had the information, the information would not be meaningful from a cost perspective.  For example, the first category defined in the questionnaire is defined as "carbon casing, 
plain end."  In the cost accounting system that Siderca maintains 
today, there are many products that would have to be grouped into this general category.  The commercial values of the different products would also vary, although not necessarily in the same proportion as the cost.  Therefore, an average cost of a product 
category such as "carbon casing, plain end" is nearly meaningless 
from a cost accounting point of view.  The same is true of the other nine product categories identified in the questionnaire. 
 
• In Siderca's 7 December 2005 le tter (ARG-19), Siderca addressed the issue again, this 
time in response to a proposed comparison of Siderca's cost to Argentine export 
statistics which identified the products at the HTS level.  Siderca stated: 
 
1. As Siderca pointed out in its 30 November 2005 response, the ten product categories iden tified in the Department's 
questionnaire are so broad that they make any conclusions drawn from the data highly doubtful, and certainly not sufficient to support 
the conclusion of whether "dumping" is likely to continue or recur.  
As Siderca stated, ther e are literally thousands of possible different 
products within each of the ten cate gories, with many different costs 
and selling prices, depending on the unique combination of physical 
characteristics and customer demands defining the product. 
 
• Neither the parties nor the Department ever responded to Siderca's statements 
regarding this issue.  The next mention of the issue was in the Section 129 determination (ARG-16).  On page 4, th e Department summarizes Siderca's argument 
in its first paragraph under the heading, "Comments from Respondent Interested Parties."  In the "Analysis" section beginning on page 6, the Department does not specifically address Siderca's comments.  However, in the context of discussing the 
alleged "inconsistencies" in Siderca' s cost data, the Department states: 
The categories which defined our product groupings in this 
determination were, of necessity, broad.  They do, however, reflect three significant characteristics that serve to determine price in the market (i.e., seaml ess v. welded, carbon v. alloy, 
and casing v. tubing v. drill pipe).   Furthermore, we made our 
comparison of Acindar's sales, discussed above, based on identical matches of these characteristics.  Available information does not enable us to make comparisons on a more specific basis; nor are we obligated to perform a product-specific dumping analysis de novo  in reaching our likelihood 
determination….  
  WT/DS268/RW 
 Page E-17 
 
 
48. The Panel should take note of two important aspects of the development of this issue in the 
Section 129 proceeding.  First, the Department asser ts that its comparison of Acindar's sales to the 
Preston Pipe data was "based on identical matches of these characteristics".29  At this point in the 
proceeding, it should be clear that this statement is factually incorrect.  It is clear that the Preston Pipe 
Report used as the basis for the comparison did not  distinguish between plain end OCTG and OCTG 
with other types of end finishing.  In other word s, the Department compared specific types of OCTG 
sold by Acindar, presumably identified at the HTS level30, which distinguishes OCTG by end finish, 
with Preston Pipe categories that mix together OCTG with different end finishes in each category.  As established at the hearing and in ARG-34, the differe nce in end finishing can be significant, at times 
reaching $250 per ton. 
 
49. Second, the comparison also is flawed becau se the USDOC apparently had no idea of the 
product characteristics on either side of its comparis on.  Within each Preston Pipe category there is an 
unknown mix of products of different diameters,  steel grades, wall-thicknesses, ranges, and end 
finishes.  Also, it appears that USDOC did not know – and made no attempt to learn – the physical 
characteristics of the products exported by Acindar. 
 50. In conclusion, while these factors were know n to USDOC, USDOC did not take them into 
account in the Section 129 determination.  USDOC never attempted to develop information that 
would control these parameters.  Nor did the USDO C ever respond to the concerns Siderca expressed 
about the potential comparisons.  USDOC in fact never revealed what comparison it was performing 
until it released its final determination. 
 51. Finally, it should also be noted that the USDOC did rely on the physical characteristics of the products whenever doing so served to discredit the Ar gentine exporters' informat ion.  For example, to 
support its theory that Siderca's cost informati on was "inconsistent," USDOC calculated a weighted 
average cost for OCTG with different end finishes, explaining in its Second Submission to this Panel 
that it did so "because the available public info rmation grouped the products in that manner".
31  
Inexplicably, USDOC was concerned about the ph ysical characteristics of the products being 
compared when evaluating Siderca's cost informati on, but not when performing the price comparison 
for Acindar.  Q13. The Panel notes that the USDOC's Sect ion 129 Determination states that the USDOC 
did not use the cost data in Acindar's financia l statements because those data related to a 
product category that included products other th an the subject product.  The USDOC stated 
that "the inclusion of costs related to the me rchandise not subject to review would distort [the 
USDOC's] analysis".
32  Yet the USDOC relied on these financial statements with respect to its 
determination that the OCTG market was depressed in the period of review.33 
 (a) Please explain, by referring to the relevan t parts of the record, the relevance of the 
financial statements of Siderca and Acinda r for both the company-specific and order-
wide phases of the USDOC's sunset dete rmination in these proceedings.  More 
                                                     
 
29 ARG-16, page 4. 
30 For the Panel's convenien ce, Argentina attaches as Annex 1  to this response a copy of the HTS in 
force in 1998, 1999, and 2000, the years that Acindar indicated that it had shipped a minimal quantity of OCTG 
to the United States during the sunset period.  These were obtained from the USIT C's website.  For example, 
Argentina obtained the 2000 version of the HTS from the following URL:  
http://www.usitc.gov/tata/hts/archive/0000/000C73.pdf.  Th e document shows that the HTS does distinguish by 
type of OCTG (casing v. tubing), form (welded v. seamless), and general category of steel grade (alloy v. 
carbon, with no specification of  the specific steel used), and end finish (p lain end v. threaded and coupled).  No 
other distinctions are made. 
31 US Second Written Submission at 50. 
32 Section 129 Determination (Exhibit ARG-16 at 7). 
33 Section 129 Determination (Exhibit ARG-16 at 7). WT/DS268/RW 
Page E-18  
 
specifically, please explain whether the USDOC used these statements in support of its 
order-wide determination that dumping was likely to continue or recur should the order be revoked and where such use is reflected on the record. 
 
Argentina's Answer to Question 13(a)
 
 
52. Before reviewing each of USDOC's references to the financial statements in the Section 129 
Determination and responding to the Panel's spec ific question, Argentina would like to make a 
preliminary comment regarding the "order-wide" na ture of the Article 11.3 determination.  Even 
though the Appellate Body has acknowledged that the review contemplated by Article 11.3 can be 
"order-wide," this does not mean that company-specific information is not relevant.  Companies 
export, countries do not.  In order to determine what  is "likely" to occur on an "order-wide" or 
"country-wide" basis within the meaning of Article 11.3, the authority will have to develop a sufficient factual basis regarding the likely actions  of the specific compani es.  The Appellate Body 
has recognized this in its explanation of why the authority must always review the reasons for a 
volume decline:  
 
The cessation of imports in the second scenar io and the decline in import volumes in 
the third scenario could well have been cau sed or reinforced by changes in the 
competitive conditions of the market-place or strategies of exporters, rather than by the imposition of the duty alone.  Therefore,  a case-specific analysis of the factors 
behind a cessation of imports or a declin e in import volumes (when dumping is 
eliminated) will be necessary to determin e that dumping will recur if the duty is 
terminated.
34 
The Appellate Body is clearly referencing company  strategies, not general notions of order-wide 
trends. 
53. Argentina addresses below each of the referenc es to the company's financial statements in 
USDOC's Section 129 determination below.  In orde r to be responsive to the question, Argentina 
reproduces each reference to financial statements in the Section 129 Determination in the left column, 
and responds to the Panel's question in the right column.  
References to Financial Statement
 Observations  
"The Department did, however, have access to 
Acindar's financial statements, which included some summary cost data. . . .   These data were 
for category "tubes, pipes, and structural 
products.". . .   Although this category includes the merchandise under review, it also includes other merchandise which is not subject to the review.  We are unable to segregate subject from non-subject merchandise.  Hence, we find this 
category to be too broad for calculating a 
meaningful cost/price trend analysis for purpose of this sunset review.  The inclusion of costs related to merchandise not subject to review would distort our analysis."
35 This passage refers most directly to the company-
specific determination for Acindar.  The USDOC considered that the inclusion of non-OCTG 
products rendered the data not useful.  However, 
USDOC then used data from Acindar's overall financial statement, in which the effect of OCTG is even less relevant.  The United States Second Submission contradicts 
USDOC's statement that the data is not useful.  
See paras. 43-47 of Argentina's Oral Statement.  In other words, the USDOC rejected the more specific information which showed that the 
division producing OCTG was profitable, and 
                                                      
34 Appellate Body Report, US - Corrosion-Resistant Steel Sunset Review , para. 177. 
35 ARG-16 at 7.  WT/DS268/RW 
 Page E-19 
 
 
References to Financial Statement  Observations  
instead relied on information showing the loss 
that had been generated from the general 
operations. 
"Based upon the foregoing, and in the absence of 
usable cost data from Acindar, we find that 
Acindar likely was dumping subject OCTG 
during the original sunset review period.  Moreover, these Acindar sales occurred at a time when Acindar was showing losses on its financial statement; the financial statements of other significant OCTG products, such as Siderca, 
Lone Star, Maverick, and North Star, also were 
showing losses. . . .   These losses are an indication that the OCTG market was depressed.  The combination of Acindar selling in the United States at below market prices at the end of the 
sunset period and the depressed OCTG market 
indicates that Acindar likely was dumping significantly into the US market."
36 The financial statement data for Acindar's overall 
operations are used to corroborate USDOC's 
conclusion that the company was likely dumping 
during the sunset review period.  Thus, this reference is used to establish dumping in the past, rather than likely dumping in the future at either the company or order level. 
"Moreover, as discussed below, Acindar's marketing strategy suggests that it would continue to sell in the United States after the end of the original sunset review period."
37 USDOC uses a narrative statement in Acindar's 
financial statement as evidence that Acindar is likely to sell OCTG in the United States.  No mention is made of likely dumping. 
"However, for both Siderca and Acindar, we have financial statements from the original sunset review period that provide information on the financial statuses of these companies.  This information establishes that the global OCTG 
market was depressed during a significant portion 
of the original sunset review period which suggests that prices would continue to be low after the sunset period."
38 USDOC uses the financial statements to support 
the notion that the companies would likely "continue" to sell at low prices after the period.  This seems to be a reference to Acindar; Siderca did not ship during the period, so the reference to 
"continuing" to sell at low prices makes no sense 
with respect to Siderca. 
"We disagree with Siderca's assertion that the company financial statements of Siderca and Acindar are not relevant for our likelihood analysis.  Financial statements provide a good understanding of the status of the entire company, 
and reflect the company's overall selling 
practices.  Taken together, these data are relevant indicators of likely future pricing trends.  For example, [discussion of data from Siderca financial statement].  Given the weakened Siderca never asserted that financial statements 
are not relevant, only that they have limited value in a multi-product company.  USDOC refers to "likely future pricing trends," 
suggesting that the data are used to predict each 
company's likely future prices of OCTG.  If properly established, it could be relevant to a "company-specific" finding and an "order-wide" finding. 
                                                      
36 Id. at 7-8. 
37 See Acindar 2000 Financial Statement found in Petitioners' 30 November 2005 Submission at 
Exhibit 5, page 12. 
38 ARG-16 at 9. WT/DS268/RW 
Page E-20  
 
References to Financial Statement
 Observations  
condition of Siderca at the end of the original 
sunset review period, we consider that there was 
no valid indication that a sudden turn-around in 
the OCTG market was likely."39 
"In addition, Acindar's fiscal 2000 statement 
indicates:  [data from Acindar's financial 
statement].  Given the weakened condition during the original sunset review period, including substantial losses during fiscal 1999 and 2000, we find it likely that Acindar's US sales of OCTG during the original sunset review were at dumped 
prices.  As discussed above, we find that 
Acindar's US AUVs were far below market prices when most producers were losing money.  Even if, as Siderca now alleges, Acindar's production of OCTG during the sunset period 
represented only a short-lived experiment, 
Acindar was, in fact, shipping and selling OCTG in the United States during the original sunset review period, 1995-2000.  Thus, its shipments and pricing of merchandise subject to the dumping order, and the implications for 
likelihood of continued shipping and selling at 
dumped prices if the order were revoked subsequent to the original sunset review, are relevant to the Section 129 determination. . . .  Accepting arguendo Siderca's argument that 
Acindar's OCTG production was a very small 
portion of its overall production, nothing on the record indicates any intention on the part of Acindar to absent itself from the world OCTG market during the sunset review period.  Given 
this, combined with the high likelihood that 
Acindar dumped at the end of the sunset period, we find (contrary to the implications of Siderca's argument) that Acindar was likely to continue selling in the United States at dumped prices if the order were revoked."
40 USDOC uses the losses and weakened condition 
of Acindar to find that Acindar likely was 
dumping during the sunset review period.  That is, the financial statement is used to establish past dumping.  USDOC implies that a finding of likely dumping 
in the past by Acindar is sufficient for an order-
wide likelihood finding. 
"We find additional support for this conclusion from a statement in Acindar's financial statement regarding its marketing stra tegy.   Acindar states 
'Acindar's strategy has been and will continue to 
be to focus on the US market while using the 
export market to stabilize its overall sales volume during periods of slowdown in domestic economic activity.'. . . .  In other words, Acindar USDOC relies on the narrative statement in 
Acindar's financial statement, plus information from the USITC's analysis, to support its view 
that Acindar would export OCTG to the US after 
the sunset period.  No specific mention is made of "likely" dumping either on a company- or order-wide basis. 
                                                                                                                                                                     
39 ARG-16 at 9-10. 
40 ARG-16 at 10.  WT/DS268/RW 
 Page E-21 
 
 
References to Financial Statement  Observations  
planned to continue export sales in order to 
maintain its sales volume.  The United States is 
the world's largest market for OCTG. . . .   We 
have no evidence from Acindar itself that it planned to exit the US market after the original sunset review period.  We also note that the ITC finding that OCTG producers had incentive to 
devote more of their productive capacity to 
producing and shipping more to the US market was sustained by the Appellate Body."
41 
 
 54. As can be seen from the chart above, the fi nancial statements were used by USDOC, for 
various purposes in its Section 129 Determination, in an  effort to demonstrate:  1) the "likely past 
dumping" of Acindar; 2) that the Argentine producers would likely sell in the US market in the future; 
and 3) future pricing trends in the US market.  These findings then purported to serve, along with the 
inference based on the volume decline, as the basis for the USDOC's order-wide likelihood determination in the Sec tion 129 Determination. 
 
(b) Please explain, by referring to the relevan t parts of the record, whether the financial 
statements of these two companies reflected  the overall production operations of these 
companies or whether the data relating to the subject product, i.e. OCTG, could be 
separately identified . 
 
Argentina's Answer to Question 13(b)
 
 
55. The financial statements reflect the overa ll operations of the companies unless otherwise 
specified.  For example, Acindar's financial stat ement contained disaggregated information in the 
notes to its consolidated financial statement for diffe rent product divisions of its operation (referred to 
as "segment" information in the financial statement).  ( See Argentina's First Written Submission, para. 
120, citing ARG-27 at F-75.)  No similar disaggrega tion appears in Siderca's financial statements. 
 56. Both companies provided USDOC with inform ation regarding the relative significance of its 
OCTG production to its overall operations.  Aci ndar explained that it produced OCTG only from 
1998 to 2001, and that OCTG in those years acc ounted for less than 0.5 per cent of its total 
production.  ( See ARG-14 and ARG-28.)  Siderca's cost data provided the relative volume of OCTG 
and non-OCTG products, which show ed that non-OCTG ranged from 46.51 per cent to 52.87 per cent 
of Siderca's operations during the period.  ( See ARG-21 (confidential) summarizing the volume of 
OCTG and non-OCTG in each year from the data reported by Siderca.  See also  ARG-19 at page 6 
and note 9.) 
 
(c) Please explain whether the share of OCTG  in these two companies' overall production 
operations was taken into account in ma king the inference on the basis of these 
statements that the OCTG market was depressed. 
 Argentina's Answer to Question 13(c)
 
 57. Argentina believes that USDOC did not prope rly consider this fact.  Acindar's OCTG 
production accounted for less than 0.5 per cent of the company's total production.  Accordingly, the  
                                                                                                                                                                    
 
41 ARG-16 at 11. WT/DS268/RW 
Page E-22  
 
losses associated with Acindar's overall operations w ould not be an appropriate basis for drawing an 
inference about whether the OCTG market was depressed.  As for Siderca, the USDOC made no 
findings on the relationship of the company's overall production operations to the issue of whether the 
OCTG market was depressed.    
UNITED STATES 
 
(d) Please explain why the USDOC made inferences regarding the state of the OCTG 
industry from Acindar's financial statements when it had found the information contained in those statements to be too broad for calculating a meaningful cost/price 
trend analysis. 
 
Q14. 
 
(a) Please state your reaction to Argentina's proposition, in paragraph 42 of its Oral 
Submission, that past events are not susceptible to prediction and that an investigating 
authority can determine that either dumping o ccurred in the past or it did not or one 
does not know. 
 (b) In your view, what is, if any, the difference between determining past dumping and past 
likely dumping? 
 
Q15. The Panel notes the following parts the USDOC's Section 129 Determination regarding 
the state of the OCTG industry: 
  We note that Acindar's US sales of OCTG occurred shortly before the end of the 
original sunset review period. Absent evidence that Acindar intended to cease 
selling in the United States, and absent evidence that prevailing market conditions 
were likely to improve in the near future , we consider such sales indicative of 
Acindar's likely future pricing behaviour were the order to be revoked.42  
(emphasis added) 
 
 Given the weakened condition of Siderca at the end of the original sunset review 
period, we consider that there was no valid indication that a sudden turn-around 
in the OCTG market was likely .43  (emphasis added) 
 
The Panel also notes Argentina's statement in pa ragraph 99 of its First Written Submission that 
"USDOC's conclusion that there is "no valid indication that a sudden turn-around in the 
OCTG market was likely" is demonstrably contrary  to the evidence."  In this regard, Argentina 
refers to Siderca's letter dated 7 December 2005 (Exhibit ARG-19).  That letter states: 
 
 Also, Siderca's Financial Statement for the period ending 30 June 2000 shows 
profitability increasing and links this increase  with the recovery in the oil and gas 
sector that was already underway.44  (footnote omitted) 
 
This letter in turn refers to Siderca's letter dated 30 November 2005, found in Exhibit ARG-15.  
Financial statement of Siderca as at 30 June 2000,  attached to the mentioned letter, reads in 
relevant parts: 
 
                                                      
42 ARG-16 at 8. 
43 ARG-16 at 10. 
44 ARG-19 at 7.  WT/DS268/RW 
 Page E-23 
 
 
Improved crude and gas prices have been responsible for a steady recovery in the 
petroleum and steel markets. In this cont ext, the level of business of the Company 
during the first quarter of the year recorded a significant improvement , based on 
a recovery of sales volumes and a gradual rise in prices on the international steel 
tube market.45  (emphasis added) 
 
Business in the first quarter measured by sales volume totalled 185,882 tons and 
output reached 195,132 tons, more than in the same period for the previous year, 
when volumes totalled 124,921 tons and 117,250 tons, respectively. These figures 
are an indication of the recovery exp erienced in the sector, and exports in 
particular .46  (emphasis added) 
 
The Panel notes that financial statements of Siderca for the fiscal year ending 31 March 2000, 
found in Exhibit ARG-36, reads in relevant parts: 
 
 In the middle of the fiscal year oil pr ices began to record a significant recovers- 
hitting US$ 30 per barrel in March- generating an increase in drilling and 
investment activity by oil companies . This recovery came too late to have a 
significant effect on the volume of sales for the year.47  (emphasis added) 
 
 The recovery in crude prices and the good level of gas prices will influence a 
steady recovery ion the oil a nd steel markets. This outlook, seen in the context of 
the introduction of new installations and significant improvements in costs at 
operating level, leads to an optimistic outlook for the coming year . 
  The international market for seamless tubes has seen a profound globalization in 
recent years.
48  (emphasis added) 
 
The Panel also notes that the Preston Pub lishing data contained in Exhibit ARG-18 
Attachment 3 indicates that the prices of all subject products showed an increasing trend towards the end of the period of review of the Section 129 Determination at issue, specifically 
from September 1999 through July 2000. 
 
(a) Please indicate the period of review in th is Section 129 sunset review.  Please explain 
which parts of that review period the above-referenced financial statements covered. 
 
(b) Did the USDOC consider the above-quoted in formation in the financial statements and 
the Preston Publishing data in its Section 12 9 Determination, in particular with regard 
to its proposition that the OCTG industry was depressed and that there was no indication of recovery in the near future? 
 
Please elaborate by referring to the relevant parts of the record. 
 
                                                     
 
45 ARG-15, Attachment 1 at 1. 
46 ARG-15, Attachment 1 at 2. 
47 ARG-36 at 2. 
48 ARG-36 at 15. WT/DS268/RW 
Page E-24  
 
BOTH PARTIES  
Q16. The Panel notes Argentina's assertion in paragraph 30 of its Oral Statement that in the 
period of review of the Section 129 Sunset Determination at issue, the prices of the subject product in the United States were significantly higher than other markets.  Please elaborate by 
referring to the relevant parts of the record of the measure at issue.  
Argentina's Answer to Question 16
 
 
58. Central to the USDOC's dete rmination that Acindar was "likely" dumping during the sunset 
review period was based on a comparison of Acindar's US sales to the prevailing prices in the US 
market.  The Section 129 Determination provides th at "Our analysis indicates that Acindar's US 
selling prices during the sunset review period were  substantially lower than prevailing US market 
prices for the corresponding OCTG products."49   
 
59. As Argentina explained in its Opening Oral Statement to the Panel, it should not have been 
surprising to the USDOC that the US domestic prices relied upon by USDOC were "substantially" 
higher than Acindar's prices.  As Argentina not ed, the USITC found that US market prices were 
significantly higher than world market prices.  This  Panel upheld USITC's affirmative determination 
noting, among other things, that the US price of OCTG during the review period was significantly higher than the price of OCTG in other markets.
50 
 
60. This point is also reflected in the Secti on 129 Determination (ARG-16) at 11, where the 
USDOC states:  
We also note that the ITC's finding that OCTG producers had incentive to devote 
more of their productive capacity to producing and shipping more to the US market 
was sustained by the Appellate Body. 
61. The fact that the observed prices of Acindar we re less than significantly elevated US prices, 
however, does not support the view that Acindar was dumping.  A company presumably can sell below a significantly elevated price in the consum ing market (the highest in the world) without 
"dumping" within the meaning of Article 2.  In th is regard, such a comparison is further suspect 
particularly in light of the recognition by the United States that Acindar's tube division was 
profitable.
51  The USITC's finding, already accepted by th e Panel, thus further weakens the flawed 
reasoning relied upon by the USDOC.  62. Argentina notes that these arguments were not advanced during the Section 129 proceeding 
and that the findings of the ITC are not part of the record of the Section 129 proceeding.  This 
demonstrates the very point that Argentina wishes to make.  63. The problem stems from the failure of USDOC to disclose the basis of its comparison in sufficient time so that the Argentine exporters coul d explain why such a comparison was flawed.  As 
Argentina's written submissions demonstrate, the US DOC's likely past dumping analysis suffers from 
a host of substantive flaws and is inconsistent w ith numerous US WTO obligations.  The record does 
not reveal any attempt by USDOC to ensure that the prices it reviewed related to the same products 
within the specific categories, or that basic diffe rences in points of sale and transportation were the 
same.  The USDOC never even asked Acindar any qu estions about the observed prices, either of its 
exports or the average US prices of the OCTG pr oduct groupings.  The Argentine exporters certainly 
would have pointed out the deficiencies with US DOC's methodology had they known that this was 
                                                     
 
49 USDOC Section 129 Determination at 7 (ARG-16). 
50 See Panel Report, paras. 7.291, 7.297. 
51 US Second Submission, 43.  WT/DS268/RW 
 Page E-25 
 
 
the comparison upon which USDOC intended to conc lude that Acindar likely dumped during the 
sunset period.  64. The Panel's question thus highlights USDOC's fa ilure to inform the interested parties of the 
essential facts under consideration that formed the basi s for its decision, given that five USDOC file 
memoranda are dated 16 December 2005, were discl osed contemporaneously with the Section 129 
Determination itself and they were not provided to the interested par ties before a final determination 
was made in the Section 129 proceeding.  
 
USDOC's VOLUME ANALYSIS
 
 
Q17. 
 (a) How, if at all, did the original panel address the parties' claims and arguments relating 
to the USDOC's volume analysis? Did it exercise "judicial economy"? 
 
Argentina's Answer to Question 17(a)
 
 65. The Panel addressed the issue of volume and ma de the relevant factual findings, but decided 
to exercise judicial economy and declined to make a legal finding on the consistency of the USDOC's 
inference that dumping would be likely based on the volume decline. 
 66. The United States seeks to take advantage of this Panel's decision to leave the WTO-
consistency of USDOC's volume based inference of likelihood.  In failing to conduct any analysis of 
the volume issue, the USDOC has sent an unequivocal  message to Argentina and to this Panel:  
USDOC can rely on the inference arising from declining import volumes without an analysis of the 
cause for the decrease.
52  Clearly, the United States has taken advantage of this Panel's decision to 
leave this issue unresolved.    67. Paragraph 6.11 of the Panel Report is clear that:  
We note that in paragraphs 7.201 – 7.20 6 below, we made the relevant factual 
findings regarding Argentina's claim challe nging the USDOC's determinations in the 
OCTG sunset review.  In particular, in pa ragraph 7.202, we observed as a matter of 
fact that the USDOC had based its likelihood determination on the facts that dumping had continued over the life of the measure and that import volumes of the subject 
product had declined.  It is, therefore, cl ear that we have made relevant factual 
findings in this regard.  As far as legal fi ndings are concerned, we note that we have 
decided Argentina's claim regarding the US DOC's likelihood determinations in the 
OCTG sunset review.  We have found that the USDOC's reliance on the existence of 
the original dumping margin was inconsistent with Article 11.3 of the Anti-Dumping 
Agreement .  We therefore did not need to address whether the USDOC's reliance on 
declined import volumes was yet another ac tion inconsistent with that article.  
Argentina argues that we should make a findi ng in this regard in case our decision is 
appealed and the Appellate Body finds that the USDOC's reliance on the original dumping margin was in fact consistent w ith Article 11.3.  We do not consider, 
however, that it would be appropriate to ma ke an additional legal finding based on the 
hypothetical situation Argentina posits.  We  therefore decline to make additional 
findings in this regard. 
68. Paragraph 7.221 of the Panel Report states: 
                                                     
 
52 ARG-16 at 2 n.4 and 6 n.12.  WT/DS268/RW 
Page E-26  
 
 
We recall that the USDOC's likelihood determination in this sunset review was based on two factual findings, i.e. first dumping continued over the life of the measure and second import volumes declined following th e imposition. We have found that the 
factual basis of the first one is not proper .  We therefore conclude that the USDOC's 
likelihood determination in the instant sunset review was inconsistent with 
Article 11.3 of the Anti-Dumping Agreement.
53 
(b) What considerations should guide this Pa nel in addressing the parties' claims and 
arguments in these 21.5 DSU proceedings?  Would any prejudice arise to any party in the event the Panel did, or did not, address the volume analysis? 
 
Argentina's Answer to Question 17(b)
 
 69. The considerations that should guide the pa nel are:  1) the rights and obligations of 
Article 11.3 of the ADA; and 2) the rights and obliga tions under Articles 3.2, 3.7, and 11 of the DSU. 
 
70. In this compliance proceeding, the United States must bring itself into compliance with 
Article 11.3 of the Anti-Dumping Agreement.  The United States chose to attempt to achieve 
compliance with Article 11.3 through a Section 129 proceeding.  In that proceeding, USDOC could 
have either: 1) revoked the anti- dumping measure; or 2) continued the measure.  USDOC chose the 
latter, and it expressly based its decision, in part, on the inference that it drew from the fact that 
import volumes declined.  In order to dete rmine whether the USDOC decision brought the 
United States into compliance with its oblig ations under Article 11.3 of the Anti-Dumping 
Agreement, the Panel must conduct a searching revi ew of the USDOC's reasoning, which includes, 
expressly, the inference drawn from the declining volumes. 
 
71. DSU Articles 3.2, 3.7, and 11 compel the same conclusion.  Article 3.2 states that the dispute 
settlement system "serves to preserve the right s and obligations of Members under the covered 
agreements".  The purpose of this compliance proc eeding is to determine whether the United States 
has complied with its Article 11.3 obligation.  If the Panel tries to resolve that issue without 
examining the stated basis of that decision, it will fa il to adjudicate this matter in a way that preserves 
the rights and obligations of the Members. 
 
72. Further, DSU Article 3.7 states that, absent a mutually agreed solution, the first objective of 
the dispute settlement mechanism is  usually to secure the withdrawal of the measures concerned if 
these are found to be inconsistent with the cove red agreements".  The continuation of the anti-
dumping measure was found to violate Article 11.3, a nd the United States has chosen not to withdraw 
the measure, despite DSU Article 3.7 and despite the fact that termination of the anti-dumping 
measure is the "rule"  established by Article 11.3.  A decision not to review one of the stated bases for 
the decision not to withdraw the measure would undermine Article 11.3 of the Anti-dumping Agreement and Article 3.7 of the DSU.  73. Finally, the Panel has an obligation unde r Article 11 of the DSU to "make an objective 
assessment of the matter before it …".  The "ma tter before" the Panel in the context of this 
Article 21.5 proceeding is the US compliance with Article 11.3, which the United States claims to 
have achieved, in part, by the inferen ce it drew from decreased import volumes. 
 74. The Panel can also consider the prejudice that would flow from its decision, although 
Argentina believes that consideration of prejudi ce cannot prevail over the Panel's obligations to 
resolve the matter before it, wh ich includes an obligation to make an objective assessment of the 
matter.  In this case, the evaluation of rela tive prejudice leads to the same conclusion as the 
                                                     
 
53 Panel Report, para. 7.221.  WT/DS268/RW 
 Page E-27 
 
 
application of Article 11.3 of the Anti-dumping Agreem ent and Articles 3.2, 3.7 and 11 of the DSU.  
A decision not to address the USDOC's reliance on the volume inference would cause prejudice to Argentina, which has consistently alleged that USDOC's volume inference is inconsistent with 
Article 11.3.  In contrast, the United States can claim no prejudice from the Panel's assessment of the issue.  The United States chose to rely on the volum e inference as a basis of its determination, and it 
therefore subjected that analysis to scrutiny.  In  other words, the volume inference was one of the 
"means of implementation" that the USDOC chose, and it cannot be prejudiced by the Panel's assessment of the issue.  Complying with one's obligations is not "prejudice".  
(c) Is the USDOC's volume analysis part of the measure taken to comply with the DSB 
recommendations and rulings for the purposes of Article 21.5 DSU?  Why or why not?  
Would it have been possible for the orig inal panel to address the USDOC's volume 
analysis?  Please indicate the relevance, if any, of the Appellate Body Reports in EC –
 Bed Linen (Article 21.5 – India
 ) and US – Softwood Lumber IV (Article 21.5 – Canada)  in 
your responses to the above questions. 
 
Argentina's Answer to Question 17(c)  
 75. Argentina would respectfully refer the Pane l to paragraphs 81–98 of Argentina's Second 
Written Submission in which Argen tina provided extensive argumentati on that demonstrated that the 
USDOC's volume analysis was part of the US "measure  taken to comply."  Argentina urges the Panel 
to review these paragraphs carefully as they are fu lly responsive to the first two subsidiary questions 
of 17(c).  76. As for whether "it have been possible for the original panel to address the USDOC's volume 
analysis", Argentina would again refer the Panel to paragraph 6.11 of its original Report, which 
unambiguously provides the answer:  "It is, therefor e, clear that we have made relevant factual 
findings in this regard.  As far as legal finding s are concerned, we note that we have decided 
Argentina's claim regarding the USDOC's likelihood de terminations in the OCTG sunset review.  We 
have found that the USDOC's reliance on the ex istence of the original dumping margin was 
inconsistent with Article 11.3 of the Anti-Dumping Agreement .  We therefore did not need to address 
whether the USDOC's reliance on declined import vol umes was yet another action inconsistent with 
that article."  [Emphasis added]. 
 77. It is clear from this passage that the Panel coul d have resolved the issue, but that it chose not 
to do so because it found that the measure in qu estion violated Article 11.3 for other reasons. 
 
78. Argentina also notes that the record of the Section 129 determination demonstrates that the 
volume inference was part of the Section 129 pr oceeding.  Representatives of the US domestic 
industry urged the USDOC to use the volume infere nce to support its decision to continue the 
measure.  They argued that  
In addition to showing that Siderca dumpe d OCTG on a global basis during the POR, 
other available evidence clearly shows that Siderca could not ship OCTG to the 
United States with the discipline of the order in place.  Indeed, Siderca ceased shipping OCTG to the United States altogether after the imposition of the order.  As indicated above, in each of the four admi nistrative reviews concluded during the POR 
for this proceeding, the Department determ ined that Siderca did not have a single 
shipment of subject merchandise to the United States.  [FN] Fourth Administrative 
Review, 65 Fed. Reg. at 8949; Third Admi nistrative Review, 64 Fed. Reg. at 4070; 
Second Administrative Review, 63 Fed. Reg. at 49090; First Administrative Review, 62 Fed. Reg. at 18748. WT/DS268/RW 
Page E-28  
 
Siderca's complete cessation of imports following the issuance of the order shows that it could not sell in the United States without dumping and that, to re-enter the US market, it would have to resume dumping.  For this reason as well, the Department should not revoke the order in this case.
54    
79. This line of argument was reflected in the S ection 129 determination when the USDOC stated 
that "Declining import volumes after, and appare ntly resulting from, imposition of an antidumping 
order indicate that exporters would need to dump to  sell at pre-order levels."  ARG-16 at page 11.  
Also, as the Panel has already recognized in que stion 18, Siderca provided information directly 
relevant to the volume inference.  It also rebutted the argument by the US industry.  See ARG-19 at 
pages 7-8.  Thus, the record of the Section 129 pr oceeding tells a different story than the argument 
that the United States offers this panel.  The vol ume inference was part of the proceeding, it was 
explicitly part of the Section 129 Determination, an d there is no basis to remove it from the Panel's 
assessment of the measure taken to comply.  UNITED STATES 
 
Q18. The Panel notes Argentina's argument  that the USDOC disregarded the comments 
made by the Argentine exporters with regard to th e decline in the volume of imports.  The Panel 
also notes the US' argument that these comments  were not germane to the issue.  Siderca's 
response to the questionnaire to which Argentina refers in this regard, reads in relevant part: 
 
 Whatever the significance of a decline in export volume may be as a general 
matter, Siderca knows that, with respect to Siderca, it does not mean that the 
product could not be shipped without dumping.  The cost data (even with the limitations explained above) supports Siderca's position: Siderca is a cost-efficient producer of OCTG and could have shipped OCTG products profitably to the 
United States.
55 
 (a) Please explain why the USDOC found these comm ents not to be germane to the issue of 
the decline in the volume of imports. 
 
ARGENTINA 
 
(b) Is there any other reference on the record that contains Argentine exporters' comments 
with regard to the decline in the volume of imports? 
 
Argentina's Answer to Question 18(b)
 
 
80. As Argentina explained in its First Submi ssion, Siderca offered evidence and arguments to 
explain that the volume decline was not related to  the company's ability to participate in the US 
market without dumping.56  
 81. With respect to this evidence, which was pr obative of the absence of a likelihood of dumping, 
there was no analysis by USDOC.  Indeed, there is  no discussion of this evidence in the Section 129 
Determination.  82. In the Section 129 proceeding, Siderca offere d evidence regarding the diversification of its 
OCTG export markets following the imposition of the US order.
57  Siderca demonstrated that the 
                                                      
54 ARG-27 at pages 7, 8.   
55 Response of Siderca to the USDOC's Questionnaire (Exhibit ARG-15 at 10). 
56 See Argentina's First Submission, paras. 102-107. 
57 Siderca's Response to Questionnaire (30 Nov. 2005) at 7-10 (ARG-15).  WT/DS268/RW 
 Page E-29 
 
 
company had diversified its export markets and th at it was not subject to any other anti-dumping 
measures, and that if the US order were revoke d, dumping would not be likely to recur in the 
United States.  Siderca noted that its "sales pr ocesses underwent significant changes during the 1995 – 
2000 period, reflecting the further diversification of  Siderca's export markets and its strategy of 
providing higher-value products and services to its customers throughout the world".58  Siderca 
explained that the company had "developed an exte nsive network of international sales offices, and 
implemented a strategy to strengthen and maintain  its international presence" and this included "a 
distribution network with more than 20 offices around the world".59  Siderca further substantiated its 
position with reference to the establishment of a ser ies of long-term agreements with customers and 
international finishing plants" from around the world.60 
 
83. Regarding the diversification of its export ma rkets, Siderca explained that it had consolidated 
the company's strategic positioning in internationa l markets during subsequent years, including by 
expanding from its traditional base in Latin Americ a, and increasing significantly its shipments to 
Africa and Russia, in 1996 in particular.61  Siderca also noted how it "reacted to the economic and 
financial crises in the emerging markets of Southeast  Asia and Latin America by introducing flexible 
production programs and the developmen t of made-to-order products and services for its international 
clients," and identified the new stocking programs that the company had entered into in Venezuela, 
Nigeria, Canada, Bolivia, Thailand, Azerbaijan, Malaysia, and Ecuador.62 
 84. Siderca also commented on the Argentin e market, explaining that the company had 
introduced regional stocking programs and "just-in-t ime" inventory management agreements with 
several of its Argentine customers, developing re gional storage facilities in Las Heras, Barranquilla 
and Desfiladero Bayo.
63  The effect of these measures was to reduce order and transport time for local 
customers, and to increase Siderca's ability to provide  value added services at the site of the oil and 
gas production.  Siderca explained that these agreemen ts "proved to be important to Siderca and its 
customers during the crisis in the oil market in 1998/99, allowing customers to increase efficiency and 
reduce costs." 64 
 85. Siderca summarized its evidence as follows:  
As can be seen through this summary (and the discussion in the cited annual reports), 
Siderca continued and intensified the process of diversifying products, services, and 
markets during the 1995-2000 period.  By the end of the period under analysis, Siderca exported its OCTG to approximately 60 countries.  In some regions, such as 
Canada and Africa, the increase in OCTG exports over this period was significant. During this period, no other countries maintained anti-dumping measures against 
Siderca, nor has Siderca been accused of dumping or other unfair trade practice 
during or after this period.
65 
86. This evidence is clearly probative of whether dumping would be likely to continue or recur.  
Yet, there was no analysis by USDOC of this evidence.  Indeed, these issues are not mentioned 
anywhere in the 2005 likelihood determination.  This  is all the more striking given the Appellate 
Body's admonishment that "a case-specific analysis  of the factors behind a cessation of imports or a 
                                                      
58 Siderca's Response to Questionnaire  (30 Nov. 2005) at 7 (ARG-15). 
59 Siderca's Response to Questionnaire  (30 Nov. 2005) at 7 (ARG-15). 
60 Siderca's Response to Questionnaire  (30 Nov. 2005) at 7-8 (ARG-15). 
61 Siderca's Response to Questionnaire  (30 Nov. 2005) at 8 (ARG-15). 
62 Siderca's Response to Questionnaire  (30 Nov. 2005) at 8 (ARG-15). 
63 Siderca's Response to Questionnaire  (30 Nov. 2005) at 8 (ARG-15). 
64 Siderca's Response to Questionnaire  (30 Nov. 2005) at 8-9 (ARG-15). 
65 Siderca's Response to Questionnaire  (30 Nov. 2005) at 9 (ARG-15). WT/DS268/RW 
Page E-30  
 
decline in import volumes (when dumping is eliminat ed) will be necessary to determine that dumping 
will recur if the duty is terminated".
66 
  
CLAIMS UNDER ARTICLE 6
 
 
 
ARTICLES 6.1 AND 6.2  
 
Q19. 
 
(a) The Panel notes Argentina's allegation that the USDOC failed to give the Argentine 
exporters an ample opportunity to submit ev idence, inconsistently with Article 6.1 
because it: 
 
• failed to issue supplemental questionnaires, desp ite the fact that it had some questions 
about the information submitted; 
• failed to issue a preliminary redetermination; 
• failed to establish a schedule to allow interest ed parties to submit comments, including 
rebuttal comments, to USDOC; 
• failed to request clarification or additional  documentation from the responding parties; 
and 
• failed to hold a hearing.67 
 
The Panel also notes Argentina's assertion that these defects also violated Article 6.2 of the 
Agreement.  
 Please explain more specifically how exactl y these alleged defects violated these two 
provisions. 
 
Argentina's Answer to Question 19(a)
 
 
87. As a preliminary remark, Argentina believes it is  important to be clear that Argentina is not 
asking this Panel to be prescriptive, i.e., Argentina is not asking the Panel to tell the United States 
what specific measures it should have taken in order to have fulfilled its obligations under Article 6.1.  
Instead, Argentina simply seeks a ruling on whether the measures the United States  did take  met the 
high standards of this provision. 
 88. Indeed, Argentina made this clear in paragr aph 107 of its Second Submission:  "This Panel 
need not provide an exhaustive listing of the measures that are, or are not, required by Article 6.1.  
Instead, it has to address one core issue:  whether the USDOC actions in this case fell short of the 
requirements of Article 6.1." 
 89. In assessing whether the United States fulfilled th e requirements of Article 6.1, it is important 
to recall that the Appellate Body has rule d that Articles 6.1 and 6.2 set out "the fundamental due 
process rights " to which interested parties are entitled.  This is the benchmark against which the 
USDOC actions must be judged – whether the "funda mental due process rights" of the Argentine 
interested parties were respected or not.  Argen tina's First and Second Submissions set out in some 
detail why the USDOC breached the fundamental due process rights of the respondent interested 
                                                     
 
66 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 177. 
67 First Written Submission of Argentina, para. 144.  WT/DS268/RW 
 Page E-31 
 
 
parties by failing to provide them with "ample oppor tunity" to present in writing all evidence that they 
considered relevant in respect of the investigation in question.  90. Argentina recognizes that the US statements  to the Article 21.3(c) Arbitrator do not 
technically "bind" the United States.  But they ser ve to illustrate the wide gap between what the 
United States claimed was required
 under Article 6 of the Anti-Dumping Agreement, and what the 
USDOC actually did  in this case.  Thus, the US statements help  to illustrate the violations of Article 6.  
The Arbitrator's report recorded the US position as follows:  "…the USDOC also needs sufficient time 
to ensure that it complies with its obligations  of transparency and due process under Articles 6  and 
12" of the Agreement. Arbitrator's Award, para. 10. 
 
91. The United States set out a long list of procedural  steps that it would be required to undertake, 
including supplemental questionnaires, a preliminary redetermination, a schedule to allow interested 
parties to submit comments, and a hearing.  Desp ite these assertions to the Arbitrator, none of these 
procedural steps were ever fulfilled. 
 
92. The US statements thus highlight the failure of the United States to fulfil the "obligations of 
transparency and due process" that it had earlier recognized expressly.  93. Moreover, as the Appellate Body has made cl ear, the right of respondents to present relevant 
evidence concomitantly requires the investigating authority to take into account the information 
submitted.
68  Yet the USDOC simply ignored the lette r from Siderca that explained that the 
allegations by the Petitioners regard ing Siderca's cost data were wr ong.  The United States argues that 
"there is no obligation under Article 6.1 for a Member  to respond to a letter".  Yet, as the Appellate 
Body has made clear, the USDOC was obligated to take account of the information submitted by 
Siderca. 
 
94. Far from "taking account" of the Siderca's inform ation, the Department rejected it and issued 
its final determination.   
(b) Did the Argentine exporters request a hearing in these Section 129 proceedings? 
 
Argentina's Answer to Question 19(b)
 
 95. Initially Argentina believes it is important to r ecognize that a hearing is not exhaustive of the 
requirements of Article 6.2.  The first sentence of  Article 6.2 is stated in very broad terms:  
"Throughout the anti-dumping investiga tion all interested parties shall have a full opportunity for the 
defence of their interests."  The provision goes on to  state that interested parties are entitled to a 
hearing, but other
 measures, unrelated to hearings, could br each this provision as well.  As noted in 
our prior pleadings, in EC – Tube or Pipe Fittings , the Appellate Body found that the EC breached its 
obligations under Article 6.2 for fa iling to disclose to the interested parties during an anti-dumping 
investigation certain information on injury factors.  
96. Thus, the test is not simply whether there was a hearing but rather, more generally, whether 
the responding parties had a "full opportunity" to defend their interests.  97. As for the hearing in this case:  as ar gued in Argentina's Second Submission, the 
United States had told Argentina and the Article 21. 3(c) Arbitrator that it intended to follow specific 
procedures, which included a hearing.  Sider ca specifically asked the USDOC to provide more 
information regarding the "timing of any hearing, and how the parties will be  permitted to have access 
to and comment on the essential facts being used by  the Department to make its determination".
69  
                                                      
68 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 292. 
69 7 December 2005 Letter from Side rca to USDOC at  3 (ARG-19).  WT/DS268/RW 
Page E-32  
 
The USDOC simply ignored the question.  Argentina recalls that the original Panel found that the 
USDOC breached Article 6.2 because of  the lack of a hearing (paras. 7.235, 8.1(d)(i)).  Following the 
express USDOC statements to the Arbitrator, if the USDOC subsequently decided it would not
 be 
holding a hearing, it should have advised the parties.  Q20. 
 
(a) The Panel notes Argentina's allegation that by failing to respond to Siderca's letter dated 
7 December 2005, the USDOC acted inconsistently with Articles 6.1 and 6.2.
70  P l e a s e  
explain how exactly failure to reply to this letter violated the USDOC's obligations under 
Articles 6.1 and 6.2. 
 
Argentina's Answer to Question 20(a)  
 98. Argentina would initially observe that its claim does not simply stem from the USDOC's 
failure to respond to a particular letter.  Wh ile the 7 December 2005 letter from Siderca to the 
USDOC provided a detailed review of the problems with  the Petitioners' approach and use of facts, as 
well as challenging the Petitioners' conclusions,
71 Siderca's letter also, and equally important, pointed 
out that the Section 129 proceeding suffered from a sev ere lack of transparency.  In this regard, 
Siderca advised that there had been no communicat ion from the USDOC as to how it would use the 
information it solicited from the parties, what proce dures would be used to analyze the information, 
the timing of any hearing, or how the parties w ould be permitted to have access to and comment on 
the essential facts being used by the USDOC to make its determination.72  Siderca also pointed out 
that the allegations by the Petitioners regarding Ac indar were wrong, and did not form an adequate 
basis for a country-wide determination.73  
 
99. It is in this context, then, that the Pa nel should consider USDOC' s failure to respond to 
Siderca's 7 December letter and, more importan tly, to address the lack of transparency and due 
process concerns that were raised by Siderca.  I ndeed, the parties to the Section 129 proceeding only 
found out on 16 December that there would be no add itional procedures, and that the final results had 
been issued.  This falls far short of the US obl igation to provide "liberal opportunities" to the 
responding parties to defend their interests. 
 
100. Referring to Articles 6.1 and 6.2 in the cont ext of the present dispute, the Appellate Body 
stated that:  (a) These provisions set out the fundamental due process rights to which interested 
parties are entitled in anti-dumping investiga tions and reviews.  Articles 6.1 and 6.2 
require that the opportunities afforded inter ested parties for presentation of evidence 
and defence of their interests be "ample" and "full", respectively.  In the context of these provisions, these two adjectives suggest there should be liberal opportunities for respondents to defend their interests.
 74 
101. The interested parties thus had little opportunity  – let alone "ample" or "full" opportunity – to 
present in writing all evidence that they considered to  be relevant for the Section 129 Determination.  
The United States represented to Argentina in the Artic le 21.3 arbitration that it would engage in a 
multi-stage process in which information would be developed, refined, a nd debated through written 
and oral argument.  Instead, the USDOC provided a "black box" – information entered, and a decision 
                                                      
70 Second Written Submission of Argentina, para. 105. 
71 Letter from Siderca to USDOC, 7 December 2005 at 4-8 (public version) (ARG-19). 
72 Letter from Siderca to USDOC, 7 Decembe r 2005 at 3 (public version) (ARG-19). 
73 Letter from Siderca to USDOC, 7 Decembe r 2005 at 8 (public version) (ARG-19). 
74 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 241.  WT/DS268/RW 
 Page E-33 
 
 
came out.  No argument; not even notice that its plan s had changed and that parties would not have an 
opportunity to provide written and oral argument.  Th e failure of the United States to accord basic due 
process rights to the interested parties fell far short of the requirements of Article 6.1.  
(b) Could, in your view, the fact that Siderca sen t this letter and that it became part of the 
record mean that Articles 6.1 and 6.2 were satisfied? 
 
Argentina's Answer to Question 20(b)
 
 102. No.  In fact, it highlights just the opposite point – that the USDOC failed to discharge US due 
process and transparency obligations that are at the heart of Articles 6.1 and 6.2 and which ensure that 
interested parties are in a position to defend their in terests by having "full" and "ample" opportunity to 
defend their interests.  103. During the Mexico – Rice  dispute, the United States argued before the Panel that: 
 
The right of exporters to know the allegati ons made against them and the "essential 
facts" under consideration by the investigating authority lie at the heart of many provisions within the AD Agreement. Article 6.1, for example, requires that "all interested parties" be given "notice of the information which the authorities require 
and ample opportunity to present in writing a ll evidence which they consider relevant 
in respect of the investigation in question."  See US First Submission in Mexico – 
Rice (WT/DS295), 22 Mar. 2004 
104. Argentina agrees fully with this US asserti on that that right of exporters to know the 
allegations against them indeed lies at the heart of many provisions in the Anti-Dumping Agreement, 
and regrets that such rights were denied to th e affected Argentine respondents in the present case.  
Siderca's 7 December 2005 Letter to the USDOC expr essed such concerns and indicated that there 
was significant uncertainty as to the procedures for comment and precisely what information the 
Department would be relying on for purposes of it s determination.  USDOC did not respond thus 
precluding the Argentine companies from knowing wh at the essential facts and information that 
would serve as the basis for DOC's analysis and,  hence, prevented the Argentine respondents from 
being in a position "to present in writing all evidence  which they consider relevant in respect of the 
investigation in question," as require d by Article 6.1, and also depriv ed them of a "full opportunity for 
the defence of their interests" as required by Article 6.2.  UNITED STATES  (c) How did the USDOC consider the views expressed in this letter? 
 
ARTICLE 6.4
 
 
ARGENTINA  Q21. The Panel notes Argentina's argument that the USDOC failed to make six memoranda available to the Argentine exporters. 
 
(a) With respect to each one of these memora nda, please describe what information they 
contained as relevant to the obligation in Arti cle 6.4.  Please explain whether they also 
contained the USDOC's reasoning.  Does Article 6.4 require disclosure of an 
investigating authority's internal analysis and reasoning ?  Did the information have a confidential status in these Section 129 proceed ings, and, if so, how does this relate to the 
obligation in Article 6.4?  On what date was the information made available to the 
Argentine exporters? WT/DS268/RW 
Page E-34  
 
 Argentina's Answer to Question 21(a)
 
 105. Article 6.4 obligated the USDOC to provide to the Argentine respondents "all information" 
relevant to the presentation of their cases that was not  confidential, and was used by the Department.  
The USDOC memoranda identified in Argentina's claim meet the criteria for "information" that the 
responding parties in this case had a right to see.  The Department denied them this right.  106. The Panel should reject the repeated assertions by the United States that, in its view, the information was "not relevant to the presentati on of the respondent interested party's case".
75  T h e  
Appellate Body made clear that whether or not the information is "relevant" is to be determined from 
the perspective of the interested par ties, not the investigating authority .76  Moreover, as such 
information was "used by the authorities in an an ti-dumping investigation" within the meaning of 
Article 6.4, it clearly was "relevant".  
107. The Appellate Body made clear in EC – Tube or Pipe Fittings , that Article 6.4 requires that, 
whenever practicable, investigating authorities must  provide timely opportunities for all interested 
parties to see and prepare presentations on the basis of  "all information" that (a)  is relevant to the 
presentation of the cases of the interested parties; (b) is not confidential as defined in Article 6.5; and (c) is used by the authorities in an anti-dumpi ng investigation.  The Section 129 Determination 
included six memoranda to file, fi ve of which are dated 16 December  2005, the day of the release of 
the Section 129 Determination, satisfy these criteria.  Indeed, there was a public version   for each of 
the confidential versions of the memoranda.  Th e USDOC was obligated to provide a reasonable 
summary of these documents.  At a minimum, disclosure of these documents during the course of the Section 129 proceeding would have at least alerted the Argentine respondents as to there existence, 
and that USDOC was intending to use the documents  to support its analysis for purposes of the 
Section 129 Determination.  
 108. Because five of the six memoranda are dated 16 December 2005, the day of the release of the 
Section 129 Determination,  there can be no dispute that the respondent parties did not have access to 
any of these memoranda in advance of USDOC's is suance of USDOC's Section 129 Determination.  
As is explained further below, these memoranda provided information that the USDOC relied on for 
purposes of its Section 129 Determination.  This is  confirmed by several references in the Section 129 
Determination to these memoranda.  109. The USDOC memoranda were provided as Exhibits by Argentina:  
• Exhibit ARG-18 (22 November 2005 USDOC Memorandum to file from Fred Baker 
(public version)) 
o This memorandum contained three attachments, including: 1) the response from 
the Embassy of Argentina to the USDOC's 14 October 2005 request for information ("Appendix I"); 2) a listing of all entries of subject merchandise 
during the period August 1995 through July 2000, obtained from by USDOC 
from US Customs and Border Protection ("Appendix II") (Note, however, that in 
the public version of ARG-18, there is nothing in Appendix II – simply a slip 
sheet that states "Appendix Not Susceptible to Public Summary); and 3) Average 
unit prices for ten product groups for the sunset period, obtained from Preston Publishing, Inc. ("Appendix III"). 
                                                     
 
75 US Second Submission, para. 70. 
76 Appellate Body Report, EC - Pipe Fittings , para. 145.  WT/DS268/RW 
 Page E-35 
 
 
• Exhibit ARG-21 (16 December 2005 USDOC Memorandum to file from Mark Flessner 
regarding "Inconsistencies in data repor ted by Siderca" (public version)). 
o The chart in this document purports to be the "complete discussion of the 
discrepancies" cited by USDOC to justify its  decision to disregard Siderca's cost 
data. In this document, the USDOC mak es observations regarding certain of the 
average costs reported by Siderca, reveal s that it had certain expectations about 
the cost relationships (alloy versus carbon; OCTG versus non-OCTG), reveals 
that its expectations were not met, an d states that it is "convinced" that the 
reporting must be wrong based on its understanding of what it supposes the cost relationship should be between these product groupings. 
• Exhibit ARG-22 (16 December 2005 USDOC Memorandum to file from Mark Flessner 
regarding "Information from Preston Publishing Company"). 
o Public document describing basic bac kground information regarding Preston 
Publishing.  
• Exhibit ARG-23 (16 December 2005 USDOC Memorandum to file from Mark Flessner) 
(public version)  
o Public version of a proprietary docume nt describing "Inconsistencies in data 
reported by Acindar" (public version)).  Very little can be discerned from the 
public version of this document. 
• Exhibit ARG-24 (16 December 2005 USDOC Memorandum to file from Mark Flessner)  
o Containing certain "Securities and Exchange Commission Filings of Domestic 
OCTG Producers". 
• Exhibit ARG-25 (16 December 2005 USDOC Memorandum to file from Fred Baker) 
o Providing other "Information for the Record" consisting of several documents 
from the 2000 sunset review, including: 1) 2 Aug. 2000 Submission from Siderca 
(Appendix I); 2) 2 Aug. 2000 Submissi on from Petitioners (Appendix II); 3) 
2 Aug. 2000 Submission from North Star Steel Ohio (Appendix III); 4) 7 Aug. 2000 rebuttal comments from North Star Steel Ohio (Appendix IV);. 
110. In USDOC's Section 129 Determination, there are several references to these USDOC 
memoranda to the file, where the USDOC cites to the memoranda to support various conclusions or 
findings that are part of the Section 129 Determination.  For example,  
 
• Section 129 Determination at 4-5, n. 10  (referencing Memorandum to File, dated 
16 December 2005) 
• Section 129 Determination at 7 ("This comp arison, which includes Acindar's business 
proprietary information, is set forth in the memorandum to the file dated 
16 December 2005") 
• Section 129 Determination at 8 ("A complete discussion of these discrepancies 
necessitates discussion of Siderca's business proprietary information; for specific examples, see, the Department's Memorandum to the File dates 16 December 2005) WT/DS268/RW 
Page E-36  
 
• Section 129 Determination at 11 (referenci ng financial statemen ts of Lone Star, 
Maverick, and North Star as set forth in the memorandum to the file dated 16 December 2005)  
111. As for the criteria set forth in EC – Pipe Fittings , each of the five USDOC file memoranda 
contained information that was used by USDOC in  the Section 129 proceeding and that served as the 
basis for its Section 129 Determination.  The memo randa clearly satisfy the criteria established by the 
EC – Pipe Fittings  panel:  (a) the information is directly re levant to the presentation of the Argentine 
interested parties' cases; (b) the information is no t confidential as defined in Article 6.5; and (c) the 
information was used by USDOC in the Section 129 proceeding and was identified in USDOC's 
Section 129 Determination. 
 
112. In evaluating this claim, the Panel must also consider the absolute lack of information about 
what the USDOC was doing.  In a typical anti-dum ping investigation or review, the parties know 
what comparisons will be made.  In contrast in this case, the USDOC never explained its 
"expectations" that it would apply in evaluating Side rca's costs, nor did USDOC reveal that it would 
compare Acindar's export prices to US market pric es of general product gr oupings.  When Siderca 
asked the USDOC to explain what it was doing (ARG-19, pages 2-3), the USDOC did not even respond.  The responses came with the final determination.  113. Finally, the Panel should not be confused by th e issue of confidentiality and the obligations of 
Article 6.4 as they apply in this case.  The fact that  a party submits confidential information in no way 
limits the authority's obligation to inform that part y of critical information related to the authority's 
evaluation of that information.  For example, USDOC cannot possibly claim that the confidential nature of Siderca's cost information prevented th e USDOC from advising Siderca of its concerns over 
the consistency of the company's own cost informati on.  Yet, the failure to do so prevented Siderca 
from presenting its case.  
 
BOTH PARTIES  
(b) Please explain whether it was "practicable" within the meaning of Article 6.4 of the 
Agreement for the USDOC to make the se memoranda available to the Argentine 
exporters in these Section 129 proceedings. 
 
Argentina's Answer to Question 21(b)
 
 114. It was clearly "practicable" within the m eaning of Article 6.4 of the Agreement for the 
USDOC to have made these memoranda available to  the Argentine exporters during the Section 129 
proceeding. 
 115. In general terms, what is "practicable" fo r the purposes of Article 6.4 will need to be 
determined on a case-by-case basis.  However, for the specific purpose of this case, the Panel can 
readily reject any argument that any reduced tim e frames (e.g., based on the RPT set by the 
Arbitrator) would render US compliance with Ar ticle 6.4 somehow "impracticable."  The word 
"practicable" simply does not require this Panel to take into account the fact that the United States 
purportedly conducted its Section 12 9 determination under a shorter time frame than it ordinarily 
conducts a sunset review.  
116. First, Article 11.4 provides that Article 6 – in cluding Article 6.4 - applies to sunset review 
proceedings.  There is no notion that this requireme nt should be excused in the present context.  The 
plain text of the Agreement contradicts any argum ent that a reduced period of time rendered the 
obligations of Article 6.4 somehow inapplicable in  an Article 11.3 proceeding.  Second, as Argentina 
has argued, all WTO obligations apply on a concurre nt and overlapping basis.  The United States was  WT/DS268/RW 
 Page E-37 
 
 
required to comply with its obligations under Artic le 6.4 while concurrently complying with its 
obligation under Article 21.3(c) to bring its measures into conformity with its WTO obligations in the 
shortest period of time possible - which the Arbitrat or determined to be tw elve months.  Twelve 
months – a full year – is a significant period of time.   Indeed, that is enough time for the United States 
to have conducted an entire review under Article  11.3.  The United States clearly could have 
undertaken various aspects of the review concurrently with its revision of the waiver regulation.  The 
fact is that the United States simply chose not to do so.  It cannot complain now for its failure in this 
regard.  Third, the obligations of Article 6.4 must be read in context.  This context includes other 
provisions of the Anti-Dumping Agreement, most notably Article 11.3.  
 
117. Regarding the particular memoranda at issue,  the United States has failed to provide any 
explanation as to why these USDOC memoranda to file could not have been provided to the interested 
parties in some form in advance of the release of the Section 129 Determination.  Obviously, these 
documents must have been produced before 16 December and the United States has not claimed 
otherwise.  Indeed, it is reasonable for the Panel to assume that these memoranda had been drafted, 
reviewed and modified concurrently with the prep aration of the Section 129 Determination.  This 
point is reinforced by the referenc es in the memoranda to matters such  as "inconsistencies in data".  
Yet while the USDOC conducted this analysis, and dr afted its Determination, the interested parties 
were unaware of the analysis th at was being performed, and were not provided with any opportunity 
to comment.  There was never any attempt by USDOC  to reconcile such alle ged "inconsistencies in 
data".  The Argentine respondents were not provi ded with any opportunity, let alone a timely 
opportunity, to see such information which was clea rly being used by the USDOC for purposes of the 
Section 129 Determination.  
ARGENTINA 
 
Q22. The Panel notes Argentina's argument that the USDOC violated Article 6.4 by accepting 
unsolicited comments from the petitioners on  30 November 2005.  The Panel also notes 
Argentina's acknowledgement
77 that Siderca responded to these comments in its letter dated 
7 December 2005.78  Please explain how exactly the admission of these comments violated 
Article 6.4 of the Agreement. 
 
Argentina's Answer to Question 22  
 
118. Argentina argued that the unsolicited comment s filed by the Petitioners during the course of 
the Section 129 proceeding further compounded the imp act of the US breach of Article 6.4.  Although 
the USDOC did not issue a questionnaire to Pe titioners, the Petitioners filed a letter dated 
30 November 2005 (the same response date as th e deadline for the resp onses of the Argentine 
exporters who were responding to th e USDOC questionnaire that was dire cted to them) in which they 
supplied data and suggested for price comparisons that would then be used to support a conclusion 
regarding likely dumping.  As Arge ntina explained, the Petitioners' letter concludes – without ever 
seeing the cost data that was being filed the same day – that "it is almost a certitude that a comparison 
of the AUVs with Siderca's costs will show that Si derca was engaging in dumping OCTG on a global 
basis during the POR".79  Furthermore, the Petitioner's letter re ferences confidential data provided to 
them by the USDOC; the same confidential data  that was made available to Siderca only on 
28 November, two days before the Petitioners le tter in which its conclusions are stated so 
emphatically.  
                                                     
 
77 First Written Submission of Argentina, para. 163. 
78 This letter is found in Exhibit ARG-19. 
79 Letter from Skadden, Arps, Slate, Meagher & Flom LLP to the USDOC, 2 Dec. 2005 (Public 
Version) at (ARG-27). WT/DS268/RW 
Page E-38  
 
119. The problem with the sequence of events outlined above is that it occurred without any 
communication or clarification from the USDOC as to how it would use the information solicited by 
Siderca, what procedures will be followed to anal yze the information, and how the parties will be 
permitted to have access to and comment on the essen tial facts being used by the USDOC to make its 
determination.  Thus, in the midst of this uncerta inty, Siderca provided comments to demonstrate that 
Petitioners' analysis was without merit and di d not establish any positive evidence that dumping 
would be likely to continue or recur.
80  The Department did not advise the Parties as to what 
information or what methodology it intended to follow.   In this respect, the Petitioners comments and 
provision of additional information only served to cr eate further uncertainties in an already uncertain 
proceeding. 
 
ARTICLE 6.5.1  
 Q23. With respect to your claim under article 6. 5.1 of the Agreement, please specify clearly: 
 
(a) which confidential information you refer to, 
(b) whether you argue that the USDOC failed to seek non-confidential versions of this 
information or that non-confidential versions were submitted, but that they did not conform to the requirements of Article 6.5.1. 
Argentina's Answer to Question 23(a) and (b)
 
 
120. As for the confidential information to wh ich Argentina refers, it is the confidential 
information that was treated as such in petitioners ' submissions during the course of the Section 129 
proceeding.  Because there was either no public  summary or an inadequate public summary, the 
Argentine respondents could not discern the nature of  the arguments or evidence in support of those 
arguments.  That is precisely the reason why the Un ited States has violated Article 6.5.1  Indeed, 
USDOC acknowledged that "Siderca and Acindar also ar gue that US Steel  and IPSCO's treatment of 
information as business proprietary information hindered their ability to respond effectively".81 
 121. With respect to Article 6.5.1, in particular, the Panel in Guatemala-Cement II  found a 
violation of that provision because there was no evidence demonstrating either that petitioner 
provided a statement of reasons as to why summarization was not possible or that the Ministry even 
requested such a statement.
82  During the Section 129 proceeding, Argentine exporter Acindar 
explained that:  
At the outset, Acindar is concerned that its basic right to defend itself from the allegations being made are be ing impaired by the manner in which the information is 
being developed in this proceed ing.  In US Steel's submission, claims for confidential 
treatment appear to be so broad (either because of the Department's designation of confidential treatment, or that by US Steel 's attorneys) that Acindar cannot even 
understand the nature of the allegations.  For example, on page 9, point B, US Steel's 
letter states: "First, during 1999 and 2000, [      ]. ". It is difficult to believe that no other information can be given regarding the allegedly confidential 
information that follows the comma that would allow Acindar to understand the basic 
nature of the allegation so that it can defend itself.  US Steel provides no non-
confidential summary in sufficient detail so as to permit a reasonable understanding 
of the substance of the information subm itted in confidence, nor does it provide any 
justification for excluding completely this allegedly confidential information, which, 
                                                     
 
80 Letter from Siderca to USDO C, 7 December 2005 (ARG-19). 
81 USDOC Section 129 Determination at 6 (ARG-16). 
82 Panel Report, Guatemala - Cement II , paras. 8.207-223.  WT/DS268/RW 
 Page E-39 
 
 
after all, relates to information that is now more than 5 – 6 years old.   Therefore, the 
Department must require US Steel to re-subm it its letter in a form that is consistent 
with the regulations, and which will allow Ac indar to at least understand the nature of 
the allegation being made so that it can defend itself.83 
122. There was no response by USDOC to Acindar' s request.  Because USDOC did not require the 
Petitioners to resubmit the public version of th e letter with an appropriate summary, Acindar 
necessarily had to confine its arguments to the pub lic versions of the US industry's comments.  
Petitioners' comments did not provide, in the words of Article 6.5.1, "sufficient detail to permit a 
reasonable understanding of the substance of the information submitted in confidence." 
 
123. In addition, Siderca's 14 December  2005 Letter raises a similar concern: 
 
It is unclear why IPSCO is claiming th at the information in the brackets is 
confidential.  Most of the information is a narrative description of information that 
Siderca provided as public information.  In addition, the paragraph in IPSCO's letter 
contains general arguments relating to the sufficiency of the data.  There does not 
seem to be any reason to claim proprietary treatment for this passage.  IPSCO should refile its letter so that Siderca officials can review the substance and provide additional comments if necessary.
84 
124. Finally, Argentina asks the Panel to review  ARG-26, Siderca's 21 December 2005 letter to the 
USDOC.  Siderca advised the USDOC, for example, that 
 
[B]ased on our review of the public versi ons in the public file, it appears that the 
Department's bracketing of confidential in formation in the two memoranda is broad 
and the information is not summarized, such  that the public versions convey very 
little substance.  As these are the versions that Siderca and the Argentine Government 
officials will be able to review, we respectf ully request that the Department revise its 
bracketing and reissue the public versions.85 
125. Thus, just as USDOC failed to require the Petitioners to provide proper summaries of 
confidential submissions, the USDOC itself failed to do so regarding its memoranda to the file.  In 
order to determine whether the summaries were in "sufficient detail" to permit a "reasonable 
understanding" of the confidential information, the Pa nel should be guided by the principle of whether 
the due process objectives  of this provision have been fulfille d.  The Panel need not provide any 
definitive ruling in the abstract as to the level of  detail required under Article 6.5.1.  It need only 
decide that the non-confidential information released in  this case fell short of the requirements of this 
provision.  
UNITED STATES 
Q24. Please explain whether the APO system under the US law also allows interested parties 
themselves, in addition to counsel for such part ies, to see all confidential information submitted 
by other parties in a sunset review.  
 
 
                                                     
 
83 Letter from Acindar to USDOC, 6 December 2005 at 1 (ARG-28); see also  Letter from Siderca to 
USDOC, 14 December 2005 at 4 ("As a preliminary matter, IPSCO places its comments in brackets, depriving 
Siderca officials of the ability to review the substance of the comments.") (ARG-29). 
84 Siderca's 15 December 2005 Letter to the USDOC at 4, note 7 (ARG-29). 
85 Siderca's 21 December 2005 Le tter to the USDOC at 2 (ARG-26). WT/DS268/RW 
Page E-40  
 
ARTICLE 6.8
 
 
ARGENTINA  
Q25. Please respond to the US' argument that  because no company-specific determination 
was made for Siderca, facts available were not used for this company. 
 
Argentina's Response to Question 25
 
 126. Argentina responded to this argument in its Second Submission ( see paragraphs 137-140). 
 
127. Argentina would emphasize strongly, as reflected  in its Second Submission, that this issue 
must be decided by the substance, and not the form, of the actions of the investigating authority.  If 
the avoidance of the term "facts available" were conclusive, investigating authorities could shield 
themselves from the disciplines of Article 6.8 and Annex II by simply not having recourse to that 
specific term.  This would permit widesp read circumvention of these provisions. 
 128. It is important to separate the findings applicab le to Siderca into two parts.  First, the USDOC 
stated that it made no specific findings that Siderca was dumping during the sunset review period 
(1995-2000).  The United States indicated in its Seco nd Submission that this was not surprising given 
that the company made no US shipments during this  time.  Second, the USDOC purported to make an 
order-wide likelihood determination, which, by de finition, encompasses Siderc a, the major Argentine 
OCTG producer.  In addition, the USDOC made findings about and drew conclusions regarding 
Siderca's financial statements which clearly c ontributed to its order-wide determination.  
 
129. As for the first aspect of USDOC's analysis of Siderca, the Panel should reject the argument that the USDOC did not resort to facts availabl e with respect to Siderca because "the result of 
Commerce's analysis of Siderca's estimated cost information was no company-specific finding 
regarding Siderca".
86  As Argentina has explained, the US position rests on the flawed assumption that 
Article 6.8 and Annex II obligations apply only to in formation that is used to support conclusions of 
the investigating authority.  The US position is not supported by the provisions of Article 6.8.  If the 
USDOC is going to reject information – informat ion that the exporter cont ends is probative and 
favourable – then the authority has an obligation to  comply with the requirements of Article 6.8 and 
Annex II. 
 
130. The United States argues that it "did not use other facts in lieu of the data provided by 
Siderca; the United States simply made no finding w ith respect to Siderca.  Thus, USDOC did not use 
the "facts available" but rather declined to make any finding with respect to Siderca and used no facts 
in that respect".87   
 
131. The obligations of Article 6.8 and Annex II apply to all information, including what the 
investigating authority may consider – or what an objective evaluation of that information would lead 
an authority to consider – to be exculpatory inform ation.  Consequently, the test is not whether the 
USDOC used the magic words "facts available".  Such a test would permit investigating authorities to avoid the disciplines of Article 6.8 and Annex II by simply avoiding that term.  Accordingly, although 
the USDOC did not use the term "facts available" in  the Section 129 Determination, this fact alone 
cannot control whether Article 6.8 applies.  The Panel should avoid a result that  would elevate form 
over substance and would permit investigating au thorities, not WTO Panels, to determine when 
Article 6.8 and Annex II applied,  and when it had been breached. 
 
                                                     
 
86 US First Submission, para. 82. 
87 US Second Sumbission, para. 87.  WT/DS268/RW 
 Page E-41 
 
 
132. In the present case, the USDOC asked both Aci ndar and Siderca for information that they did 
not have.88  Siderca explained that the company was una ble to provide the information in the form 
requested by USDOC because it did not retain pr oduct-specific costs from the period requested.89  
Acindar explained that it no longer produces OCTG, that it did not have the product-specific cost information in the form requested by the Department , and that it was not required to have retained 
such information under Argentine law.
90  When the companies indicated that they did not have it, the 
USDOC resorted to other information, without comp lying with Article 6.8 and Annex II.  This is 
recourse to "facts available", whether the USDOC used that term or not.  
133. There is no textual support for such a narrow reading of the Agreement to apply only to 
information that supports the conclusions of the inv estigating authorities, but not to information that 
contradicts or detracts from its conclusions.  Article 6.8 does not apply at all unless an interested party 
"refuses access to, or otherwise does not provide, necessary information within a reasonable period or 
significantly impedes the investigation".  There is  no evidence on the reco rd of the Section 129 
proceeding that these essential preconditions had b een met, and the United States has never claimed 
that either company behaved in this recalcitrant manne r.  This fact was confirmed by the United States 
in its opening oral statement during the Panel's me eting with the Parties.  The USDOC Section 129 
Determination itself found that Siderca "attempted to  cooperate with the De partment's request for 
information".
91 
 
UNITED STATES  
Q26. 
 
(a) The Panel's understanding of the method used by the USDOC with regard to product 
groupings the USDOC made for purposes of e xamining the reliability of Siderca's cost 
data is that the USDOC took the weighted av erage costs of, for example, carbon casing 
PE and carbon casing T&C, and compared that  with the weighted average cost of alloy 
casing PE and alloy casing T&C.  In other words, the USDOC took as the starting point 
of its product grouping for comparison the material used without taking into account 
the finishing. 
 
 Is this a correct characterization of the USDOC's methodology? Please explain by 
referring to the relevant parts of the record. 
 ARGENTINA 
 
(b) The Panel notes Argentina's assertion, among others, in paragraph 55 of its Oral 
Submission, that the data submitted by Siderca  indicated higher costs for alloy products 
compared with casing products throughout the period of review, with the exception of the 
year 2000.  The Panel understands Argentina's argument to be that the USDOC should 
have compared the costs of, for example, carbon casing PE with that of alloy casing PE 
and carbon casing T&C with that of alloy casing T&C.
92 
 
 Is the Panel's understanding correct regarding Argentina's assertion? 
 
                                                      
88 USDOC Questionnaire to Acindar, Tubhier and Siderca (31 Oct. 2005) (ARG-13). 
89 Siderca's Response to Questionnaire (30 Nov. 2005) at 2 and Attachment 2 (ARG-15). 
90 Acindar's Response to Questionnaire (30 Nov. 2005) (ARG-14). 
91 USDOC Section 129 Determination at 8 (ARG-16); see also  Argentina's First Submission, para. 182. 
92 First Written Submission of Argentina, para. 79. WT/DS268/RW 
Page E-42  
 
Argentina's Answer to Question 26 (b)
 
 134. Yes, the Panel's understanding is correct.  Because the only difference between the two 
product groupings in such an alternative comparis on becomes the type of steel (i.e., alloy versus 
carbon), it is logically a better indicator of whether Siderca's reported costs showed that alloy products 
were more costly to produce than carbon products.  Economists refer to this process of controlling all 
other factors in order to isolate the factor one seeks to observe as " ceteris paribus " or "all other things 
being the same".  135. Of course, Argentina repeats that this entir e line of inquiry by US DOC was of speculative 
value.  Any comparison at the product group level is potentially misleading because of the number of 
different products – with different costs – that  could be contained in the two groupings being 
compared.  But, of the two comparisons (carbon plain end to alloy plain end; or carbon all
 ends to 
alloy all  ends), the comparison that reduces the number of other differences and focuses on the type of 
steel is objectively better for determining the co st effect of producing with different steel. 
 
(c) Please explain why, in your view, it was not proper for the USDOC to rely on the same 
grouping that Preston Publishing used for the subject product. 
 
Argentina's Answer to Question 26(c)  
 
136. Please see the response to question 26(b) above. 
 137. Argentina considers it important for the Panel to distinguish the two different comparison that 
USDOC performed in the Section 129 determination.  These are:  
 Comparison Purpose 
1 Alloy versus carbon production costs To determine whether Siderca's 
reported costs are reliable 
2 Acindar's export prices to Preston Pipe 
data on US market selling prices To determine whether Acindar was 
likely dumping in the past 
 
USDOC conducted the first comparison because it deci ded that the cost of alloy products must be 
higher than the cost of carbon products; if they were  not, the costs would be unreliable according to 
USDOC.  This was a type of "reasonableness" test  that USDOC used for the purpose of testing 
Siderca's cost.  Argentina submits, as explaine d in response to question 26(b) above, that a 
reasonableness test attempting to determine the cost of producing carbon or alloy OCTG should, if 
possible, be based on a comparison of products in wh ich steel type is the only difference.  It was 
possible in this case; in fact, it was the way that USDOC requested the costs, and the way that Siderca 
reported the cost.  In contrast, the Preston Pipe groupings were more gene ral because they failed to 
distinguish between end finishes.  Therefore, an y difference resulting from a comparison at the more 
general level used in the Preston Pipe  report could be attributable to the different steel type, or to the 
mix of end finishes on the OCTG in each grouping, or to some combination of the two.   
138. Comparison 2 is the only comparison relating to the Preston Pipe categories.  This 
comparison is done for a different purpose:  to determine likely dumping in the past.  But USDOC never used Siderca's data at this stage because it was deemed to suffer from "inconsistencies," partly 
because of comparison 1.  As explained, comparison 1 was not an appropriate comparison to determine how steel type (alloy or carbon) affect ed the cost, because USDOC averaged the costs of 
products with different end finishes.  This averaging changed
 the result of comparison 1; it took 
reported costs in which the alloy product was more  costly than the carbon product, and changed the  WT/DS268/RW 
 Page E-43 
 
 
result so that the carbon product (with all end finish es) became more costly than the alloy product 
(with all end finishes).  Without this averag ing, no "inconsistency" would have arisen . 
 UNITED STATES  (d) The Panel notes the US' argument that the USDOC made this product grouping in 
accordance with the public information available.
93  The Panel also notes that the memo 
to which the United States refers in this regard, found in Exhibit ARG-18, contains a product grouping by Preston Publishing. 
 
 Please demonstrate, by referring to the rel evant parts of this memo, how exactly the 
Preston product grouping  formed the basis of the USDOC's grouping. 
 (e) Please explain whether the USDOC informed Siderca of the methodology that it was 
considering to use for the grouping of products. 
 
(f) Please explain why the USDOC did not use the methodology proposed by Argentina. 
 Q27. Please explain for what purpose the USDO C requested the cost information from the 
Argentine exporters in these proceedings.  Mo re specifically, please explain whether the 
USDOC intended to use that information exclusiv ely for its company-specific determinations or 
for its order-wide determination as well.  
Q28. Please explain whether the USDOC init ially intended to make a company-specific 
determination for Siderca as it did for Acindar, citing any evidence on record.  In other words, 
would the USDOC have made a company-speci fic determination for Siderca had that 
company's cost data been found to be reliable? 
 Q29. The Panel notes that the USDOC's Sectio n 129 Determination reads in relevant parts: 
 
 We disagree with Siderca's assertion that the company financial statements of 
Siderca and Acindar are not relevant fo r our likelihood analysis. Financial 
statements provide a good understanding of the status of the entire company, and 
reflect the company's overall selling prac tices. Taken together, these data are 
relevant indicators of likely future pricing trends.
94 
 
(a) Would the United States agree that the USDOC's Section 129 Determination 
demonstrates that some information pertai ning to Siderca, namely this company's 
financial statements, were used by the US DOC in the context of its order-wide 
determination? 
 (b) Were Siderca's financial statements used as facts available or as Siderca's response to 
the USDOC's questionnaire? 
 
 Please elaborate.  
BOTH PARTIES 
 Q30. Please explain in detail whether, in your view, paragraph 3 of Annex II justified the rejection of Siderca's cost data.  In particul ar, please explain whether the cost information 
                                                     
 
93 Second Written Submission of the United States, para. 50. 
94 Section 129 Determination (Exhibit ARG-16 at 9). WT/DS268/RW 
Page E-44  
 
submitted by Siderca was verifiable within the meaning of paragraph 3.  Did the USDOC take 
any steps to verify such information? 
 
Argentina's Answer to Question 30
 
 
139. Paragraph 3 of Annex II did not justify US DOC's rejection of Siderca's cost data.  
Paragraph 3 provides in pertinent part as follows:  
All information which is verifiable, which is  appropriately submitted so that it can be 
used in the investigation without undue difficulties, [and] which is supplied in a 
timely fashion … should be taken into a ccount when determinations are made…. 
140. The cost information was verifiable within the meaning of paragraph 3.  The information 
provided by Siderca was verifiable, and was appropria tely submitted.  Indeed, this is made crystal 
clear in Siderca's letter to the USDOC, dated 14 December 2006, page 4, (ARG -29), in which Siderca 
responded to petitioner IPSCO's criticis m of Siderca's data, stating: 
 
Siderca stands by the analysis and emphasizes, as explained in the 30 November submission, that the data has been recons tructed using cost reports from the same 
production lines and cost centres used to produce OCTG during the period.  Information on the cost of operating the lines during the 1995-2000 period is available, was used by Siderca, and w ould be available for verification if the 
Department so chose.  The Department i ndicated in its questionnaire that Siderca 
should use verifiable data, and Siderca c onfirms that it heeded this advice. 
141. It could readily have been used by the US DOC in the Section 129 proceeding without "undue 
difficulties".  The Department was therefore requi red under paragraph 3 of Annex II to take such 
information into account in its Section 129 determinati on, but it failed to do so.  As the Panel clarified 
in US – Steel Plate from India , a decision by an administering authority to reject information provided 
by an exporter, where that decision "lacks a valid basis under paragraph 3 of Annex II of the AD Agreement", will result in an violation of the requirements of Article 6.8 and paragraph 3 of 
Annex II.
95  The Panel reasoned as follows: 
 
The second criterion of paragraph 3 requires that the information be "appropriately 
submitted so that it can be used in the inv estigation without undue difficulties." In our 
view, "appropriately" in this context has th e sense of "suitable for, proper, fitting". 
That is, the information is suitable for the use of the investigating authority in terms 
of its form, is submitted to the correct authorities, etc. More difficult is the requirement that the information can be "used without undue difficulties". "Undue" is 
defined as "going beyond what is warranted or natural, excessive, disproportionate".  
Thus, "undue difficulties" are difficulties be yond what is otherwise the norm in an 
anti-dumping investigation. This recognizes th at difficulties in using the information 
submitted in an anti-dumping investigation are not, in fact, unusual. This conclusion 
is hardly surprising, given th at enterprises that become in terested parties in an anti-
dumping investigation and are asked to provide  information are not likely to maintain 
their internal books and records in exactly the format and with precisely the items of 
information that are eventually requested in the course of an anti-dumping investigation.  Thus, it is frequently necessary for parties submitting information to collect and organize raw data in a form that  responds to the information request of the 
investigating authorities. Similarly, it is frequently necessary for the investigating 
authority to make adjustments of its own in  order to be able to take into account 
                                                     
 
95 Panel Report, US – Steel Plate from India , WT/DS206/R, para. 7.79.  WT/DS268/RW 
 Page E-45 
 
 
information that does not fully comply with its request. This is part of the obligation 
on both sides to cooperate, recognized by the Appellate Body….96 
142. In fact, in this case, USDOC recognized Side rca's cooperation, stating that Siderca "attempted 
to cooperate with the Departme nt's request for information".97  However, USDOC claimed to have 
"significant problems with [Siderca's] allocation of  costs, with respect to both OCTG production and 
all tubular production" as well as "methodological discr epancies with the estimates submitted by 
Siderca".98   
 143. The USDOC decided not to use any of Siderc a's cost information in its likelihood analysis, 
stating "Given the unreliability of the cost informat ion provided by Siderca and the fact that Siderca 
made no US sales of OCTG during the original sunset  review period, we make no findings regarding 
specific instances of likely dumping by Siderca during the original sunset review."
99  The USDOC 
determined that Siderca's data was "unreliable" based  on three subsidiary findings:  (1) that the OCTG 
cost data was "inconsistent with  other product cost data for steel  products" and "counter-intuitive";100 
(2) that "Siderca's cost calculations for non-OC TG products are problematic because their costs 
significantly exceed OCTG costs"101, and (3) that "methodological discrepancies" make it "unclear 
exactly how broad a product category Sider ca has used in estimating its costs data".102 
 144. Argentina has demonstrated in its written and oral submissions to the Panel that the USDOC's 
reasoning on each of these counts is seriously flaw ed.  Equally important, however, the USDOC never 
raised any of its concerns during the Section 129 proceeding.  Consequently, there was no opportunity 
for Siderca to address any of the Department's concerns or to clarify why the data submitted by 
Siderca could be used for purposes of the USDOC's  likelihood analysis.  The United States did not 
take any steps to verify Siderca's cost info rmation.  In fact, the USDOC asked no questions
 and 
sought no clarification .  
 Q31. The Panel notes the following part of  the USDOC's Section 129 Determination: 
 
 Although Siderca attempted to coopera te with the Department's request for 
information, upon analysis of Siderca's calculations, we have identified significant problems with its allocation of costs, with respect to both OCTG production and 
all tubular production.
103 
 
(a) Please explain your views about the relevance of this determination to the issue of 
whether or not Siderca acted to the best of its ability in submitting its cost information 
to the USDOC within the meaning of paragraph 5 of Annex II to the Agreement. 
 
(b) Please explain how ideal the cost inform ation submitted by Siderca was within the 
meaning of paragraph 5 of Annex II to the Agreement. 
 
Argentina's Answer to Questions 31(a) and (b)  
 
145. Paragraph 5 of Annex II provides:  
                                                     
 
96 Panel Report, US – Steel Plate from India , WT/DS206/R, para. 7.72. 
97 USDOC Section 129 Determination at 8 (ARG-16). 
98 Id. at 8-9. 
99 USDOC Section 129 Determination at 9 (ARG-16). 
100 USDOC Section 129 Determination at 8 (ARG-16). 
101 Id. 
102 Id. at 9. 
103 Section 129 Determination (Exhibit ARG-16 at 8). WT/DS268/RW 
Page E-46  
 
Even though the information provided may not be ideal in all respects, this should not 
justify the authorities from disregarding it, provided the interested party has acted to 
the best of its ability. 
146. Argentina acted to the best of  its ability in submitting the cost information.  As the Panel in 
Egypt – Rebar from Turkey  stated, the phrase "to the best of one's ability" indicates a high level of 
effort.  The Panel found that "an unbiased and object ive investigating authority could have found that 
[the respondent exporters] failed to provide necessar y information in the sense of Article 6.8," and 
therefore Egypt did not violate Article 6.8 or Anne x II(5) in resorting to "facts available" for these 
respondents.
104  Here, however, there is no basis in the r ecord of the Section 129 proceeding for the 
USDOC to assert that Siderca did not act to the b est of its ability.  To the contrary, the record 
demonstrates that USDOC recognized that Siderc a attempted to cooperate.  The USDOC simply 
concluded that the information was not useable a nd did not offer Siderca any opportunity to clarify 
the data or attempt to correct any of the purported problems with that data.   147. This is especially true in this case, where th e USDOC did not even attempt to ask questions or 
to seek any clarification.  Rather, it simply conclu ded, based on a series of flawed premises, that 
Siderca's data was unusable.  In this case, there is  not basis under paragraph 5 of Annex II that would 
"justify" USDOC "from disregarding" Siderca's cost in formation, especially in light of the fact that 
Siderca "has acted to the best of its ability".  148. Regarding the quality of the cost information (within the meaning of paragraph 5 of Annex II 
to the Agreement) submitted by Siderca, as Side rca has demonstrated in its written submissions and 
during its opening statement to the Panel, the cost information provided by Si derca was far preferable 
that the data ultimately relied on by USDOC.  149. Even if, arguendo , the information provided by Siderca was not "ideal in all respects", 
paragraph 5 of Annex II makes clear that this did not justify disregarding it, provided the interested 
parties acted to the best of their ability.  The USDOC has not claimed that either company failed to act 
to the best of its ability.  Indeed, as noted above , the Department expressly recognized that Siderca 
"attempted to cooperate with the Depa rtment's request for information".
105 
 150. Finally, Argentina has explained in this pr oceeding why, even though the cost data submitted 
by Siderca may not have been "ideal", that data  was still more probative for purposes of the USDOC's 
likelihood analysis and was preferable to use than the alternative of rejecting this probative data and 
simply speculating and relying on assumptions base d on selective reliance on Siderca's financial 
statements.  Q32. 
 
(a) In your view, was the USDOC under an obligatio n to inform Siderca of the fact that its 
cost information would not be used as well as  to give Siderca a chance to make comments 
as to why the information had to be used  by the USDOC pursuant to paragraph 6 of 
Annex II?  If so, was the USDOC under an obligat ion to do it prior to the issuance of its 
Section 129 Determination? 
 (b) Did the USDOC actually inform Siderca of this fact and give Siderca a chance to make 
comments? If so, when?  Did Siderca know that its cost data were not going to be used by 
the USDOC in its determinations? 
 
                                                     
 
104 See Panel Report, Egypt – Rebar from Turkey , WT/DS211, paras. 7.241-7.248.  
105 USDOC Section 129 Determination at 8 (ARG-16).  WT/DS268/RW 
 Page E-47 
 
 
Argentina's Answer to Questions 32(a) and (b)  
 
151. Paragraph 6 of Annex II provides: 
 
If evidence or information is not accepted, the supplying party should be informed 
forthwith of the reasons  therefore, and s hould have an opportunity to provide further 
explanations within a reasonable period, due  account being taken of the time-limits of 
the investigation.  If the  explanations ar e considered by the authorities as not being 
satisfactory, the reasons for the rejection of such evidence or information should be given in any publishe d determinations. 
152. The obligation provided for in paragraph 6 of Annex II is clear.  In Egypt – Rebar from 
Turkey,  the Panel concluded that "Egypt violated Articl e 6.8 and Annex II, paragraph 6, in respect of 
[the respondent exporters], becau se the [investigating authority] , having identified to these 
respondents the information "necessary" to verify  their cost data, and having received that 
information, nevertheless found that the responde nts had failed to provide "necessary information".
106  
The Panel faulted the investiga ting authority because it did not "inform these companies of this 
finding and did not give them an opportuni ty to provide further explanations."  
 153. Similarly, USDOC clearly was under an obligation to inform Siderca of th e fact that its cost 
information would not be used by the USDOC for pur poses of the Section 129 Determination.  This is 
especially so given that Siderca attempted to prov ide the data as it was requested by the USDOC.  In 
addition, if USDOC had concerns regarding th e information submitted by Siderca, USDOC was 
required to provide Siderca with an opportunity to provide comments as to why the information 
should not de disregarded by the USDOC.  More over, USDOC was under an obligation to provide 
Siderca with the opportunity to provide comments and any needed clarifications prior to the issuance 
of its Section 129 Determination. 
 
154. Finally, the record reflects that USDOC did not "actually inform Siderca of this fact" nor did it "give Siderca a chance to make comments."  The record of the Section 129 proceeding on this point 
cannot be refuted.   As for whether Siderca knew that  its cost data were not going to be used by the 
USDOC in its determinations, part of Siderca's fru stration was that it did not know what information 
the USDOC was going to use or what procedures it intended to follow.  In the end, Siderca had no 
knowledge of the "essential facts" upon which the USDOC would rely.  Nor was there any 
opportunity for Siderca to address the supposed "inconsistencies" with the company's data. 
 ARGENTINA  Q33. The Panel notes Argentina's assertion that the USDOC violated paragraph 7 of Annex II by failing to apply special circumspection with re gard to the information it took from secondary 
sources instead of the information submitted by  the Argentine companies.  Please explain 
clearly which company Argentina refers to in this  regard.  Please also explain what secondary 
source, in Argentina's view, was used instead of the information submitted by the Argentine companies.  Also, please explain how exactly the USDOC failed to use the most appropriate 
information instead of the information submitted by the Argentine companies. 
 
Argentina's Answer to Question 33
 
 155. This claim relates to Acindar.  The seconda ry sources consist of US Customs and Border 
Protection (CBP) data and information reported in  a publication known as the Preston Pipe & Tube 
Report.  The specific import prices of Acindar's OCTG were based on the CBP data.  These prices were considered by the USDOC to be too low wh en compared to observed selling prices in the US 
                                                     
 
106 Panel Report, Egypt – Rebar from Turkey , WT/DS211, para. 7.266.  WT/DS268/RW 
Page E-48  
 
market, as reported in a publication known as Preston Pipe & Tube Report.
107  As Argentina has 
argued, there are several flaws with this appr oach for which Argentina has provided extensive 
arguments.  156. First, the USDOC's comparison of pricing da ta based on a commercial publication does not 
constitute an objective examination of informati on and is not positive evidence to support a WTO-
consistent determination that dum ping would be likely to continue or recur.  This comparison was 
inconsistent with the basic requirements of Article  2.  Second, USDOC's comparison of Acindar's US 
shipments to prevailing US market prices did not involve any product-specific comparison.  Rather, 
the USDOC compared prices for specific Acindar transactions to prices of "carbon casing, welded" as 
reported by Preston Pipe & Tube Reports, without regard  to the specific size of pipe, and to the type 
of end finishing.  As Siderca explained in its res ponses, these variabl es affect cost and price, and any 
comparison that does not account for these differences is suspect.
108  Finally, the prices reported in 
Preston Pipe & Tube Report are prices to the final customers in the United States, reported on the basis of a specified delivery po int in the United States.  The prices that USDOC obtained from 
USCBP presumably are stated on a FOB port of e xport, which in the case of Acindar would be 
Argentina.  The record of the Section 129 proceed ing contains no indication that USDOC exercised 
any care to eliminate the obvious distortion that would be implicit in any such comparison.  157. The comparison that relied on the secondar y sources relied on by USDOC as supporting its 
determination of "likely" dumping does not even r esemble the notion of "dumping" under Article 2.  
The record does not reveal any attempt by USDOC to ensure that the prices it reviewed related to the 
same products within the specific categories, or  that basic differences in points of sale and 
transportation were the same.  The USDOC neve r even asked Acindar any questions about the 
observed prices, either of its exports or the average US prices of the OCTG product groupings. 
 
158. There is no indication whatsoever that th e USDOC acted with "special circumspection" 
within the meaning of paragraph 7 of Annex II.  In  this regard, the Appellate Body adopted the views 
of the Panel in Mexico – Rice , where it said  
 
when culling necessary information from secondary sources, the agency should 
ascertain for itself the reliability and accuracy  of such information by checking it, 
where practicable, against information cont ained in other independent sources at its 
disposal, including material submitted by in terested parties. Such an active approach 
is compelled by the obligation to treat data obtained from secondary sources "with special circumspection".
109 
159. There is nothing in the Section 129 Determin ation demonstrating that  the USDOC took  "such 
an active approach" or "check[ed] the information fr om other independent sources at [its] disposal".  
USDOC never even asked Acindar to explain the gene ral reference in its 2000 financial statement.  
Instead, it assumed that it must be consistent with  the notion that Acindar was likely to dump OCTG 
in the US in the event of expiry of the measure.  160. Finally, as for what information might have  been appropriate, the USDOC might reasonably 
have asked Acindar to provide information about th e actual OCTG products that Acindar sold to the 
United States, the prices for those products, the terms of sale, and it could ha ve developed information 
that could have been used for a more appropria te comparison to determine whether Acindar was 
"dumping" during the sunset period as defined by the Anti-Dumping Agreement. 
                                                     
 
107 USDOC Section 129 Determination at 7 (ARG-16). 
108 See Siderca's Response to Questionnaire (30 Nov. 2005) at 4 (ARG-15) ("While Siderca has 
reported the cost data for the product categories defined by the Department, Siderca would like to stress that the 
data for such broad product groupings is of limited value from a cost and commercial point of view."). 
109 Appellate Body Report, Mexico – Rice , paras. 288-289 (footnote omitted).  WT/DS268/RW 
 Page E-49 
 
 
 
ANNEX 1* 
   
Harmonized Tariff Schedule of the United States  (2000)** 
Annotated for Statisti cal Reporting Purposes 
 
 
CHAPTER 73 
 
ARTICLES OF IRON OR STEEL 
  
XV 
73-1 
 
Notes  
 
1. In this chapter the expression "cast iron " applies to products obtained by casting in which iron 
predominates by weight over each of  the other elements and which do  not comply with  the chemical 
composition of steel as defined in Note 1(d) to chapter 72. 
 
2. In this chapter the word "wire " means hot- or cold-formed products of any cross-sectional shape, of which 
no cross-sectional dimension exceeds 16 mm. 
 
Additional U.S. Notes  
 
1. For the purposes of heading 7304 or 7306, the ra te of duty "Free (C)" appearing in the "Special" 
subcolumn applies only to tubes and pipes with attached fittings, suitable for conducting gases or liquids. 
 
2. For the purposes of subheading 7307.19.30, the expression "ductile fittings " refers to fittings which contain 
over 2.5 percent carbon and over 0.02 percent of magnesium or of magnesium and cerium, by weight. 
 
 
    
 
     
 
   _______________ 
 * Argentina submitted to the Panel a scanned version of this Annex.  For technical reasons concerning 
the reproduction of the report, however, the Annex has been reproduced and then incorporated into the report.  Certain manual additions as well as emphasis in the form of circling found in the original version of the Annex 
submitted by Argentina have been identified through footnotes. 
 ** The year "(2000)" manually circled in the original version submitted by Argentina. WT/DS268/RW 
Page E-50  
 
Harmonized Tariff Schedule of  the United States (2000) 
Annotated for Statisti cal Reporting Purposes 
 
 
XV 
73-15 
Rates of Duty 
1 Heading/ 
subheading Stat.
Suf 
fix Article Description Unit 
of 
Quantity General Special 2 
7306 
 Other tubes, pipes and hollow profiles (for example, open 
seamed or welded, riveted or similarly closed), of iron or steel:     
7306.10   Line pipe of a kind used for oil or gas pipelines:     
7306.10.10 
  Of iron or nonalloy steel .. ............ ............ .. ............. .. 0.8% Free   (A+,CA,E,IL, 
 J) 
0.5%  (MX) 5.5% 
 10  With an outside diameter not exceeding 
 114.3 mm ....... ............. ............ ........... ....... kg    
 50  With an outside diameter exceeding 
 114.3 mm........... ............. ............ ............ ...  kg    
7306.10.50   Of alloy steel ............. ............ ............ ............ ........... .... ........... 2% Free   (A+,CA,E,IL,
 J) 
1.4%  (MX) 10% 
 10  With an outside diameter not exceeding 
 114.3 mm........ ............. ............ ......... ......... kg    
 50  With an outside diameter not exceeding 
 114.3 mm........ ............. ............ ......... ......... kg    
7306.20 
 
 
7306.20.10   Casting and tubing of a kind used in drilling for oil or gas:
  Casing:* 
 Of iron or nonalloy steel: 
 Threaded or coupled.... ............. ............. ........  
...............  
2.4%  
 
 
Free   (A+,CA,E,IL,
 J) 1.8%  (MX) 20% 
 30  Imported with coupling.............................. kg    
 90  Other........................................................... kg    
7306.20.20 00  Other........... .............. ............ ............ ............ ..... kg........... 0. 2% Free   (A+,CA,E,IL,
 J) 
0.1%  (MX) 1% 
7306.20.30 00  Of alloy steel: 
  Threaded or coupled .............. ............ ............  
kg...........  
2.5%  
Free   (A+,CA,E,IL,
 J) 
1.8%  (MX)  
28% 
7306.20.40 00  Other........ ............. ............. ............ ............ .... kg........... 1. 3% Free   (A+,CA,E,IL,
 J) 
0.9%  (MX) 8.5% 
 
7306.20.60   Tubing:** 
 Of iron or nonalloy steel ........... ............ ............  
..............  
0.8%  
Free   (A+,CA,E,IL,
 J) 0.5%  (MX)  
5.5% 
 10  Imported with coupling................................. kg    
 50  Other.............................................................. kg    
7306.20.80   Of alloy st eel............. ............ ............ ............ .... .......... ..... 2% Free   (A+,CA,E,IL,
 J) 
1.4%  (MX) 10% 
 10  Imported with coupling................................. kg    
 50  Other.............................................................. kg    
 
 
   _______________ 
 * The word "Casing" manually circled in th e original version submitted by Argentina. 
 ** The word "Tubing" manually circled in th e original version submitted by Argentina.  WT/DS268/RW 
 Page E-51 
 
 
 
1998* 
 
O&f1y3x 
 
CHAPTER 73 
 
ARTICLES OF IRON OR STEEL 
 
 
XV 
73-1 
 
Notes  
 
1. In this chapter the expression "cast iron " applies to products obtained by casting in which iron 
predominates by weight over each of  the other elements and which do  not comply with  the chemical 
composition of steel as defined in Note 1(d) to chapter 72. 
 
2. In this chapter the word "wire " means hot- or cold-formed products of any cross-sectional shape, of which 
no cross-sectional dimension exceeds 16 mm. 
 
Additional U.S. Notes  
 
1. For the purposes of heading 7304 or 7306, the ra te of duty "Free (C)" appearing in the "Special" 
subcolumn applies only to tubes and pipes with attached fittings, suitable for conducting gases or liquids. 
 
2. For the purposes of subheading 7307.19.30, the expression "ductile fittings " refers to fittings which contain 
over 2.5 percent carbon and over 0.02 percent of magnesium or of magnesium and cerium, by weight. 
 
 
     
 
    
 
    
 
     
 
 _______________ 
 * The indication of year manually added in the original version submitted by Argentina. WT/DS268/RW 
Page E-52  
 
O&f2y3x 
XV 
73-17 
7306 (con.) 
 
 
7306.20 
 
 
 
7306.20.10  Other tubes, pipes and hollow profiles (for example, open 
seamed or welded, riveted or similarly closed), of iron or 
steel (con.): 
 Casing and tubing of a kind used in drilling for oil or  gas:   Casing:* 
 Of iron or nonalloy steel: 
 Threaded or coupled .............. ............ ............ ............. .. 3.6% Free   (A+,CA,E,IL,
 J) 
3%     (MX) 20% 
 30  Imported with coupling.............................. kg    
 90  Other........................................................... kg    
7306.20.20 00  Other........... .............. ............ ............ ............ ..... kg........... 0. 3% Free   (A+,CA,E,IL,
 J) 0.2%     (MX) 1% 
 
7306.20.30  
00  Of alloy steel: 
  Threaded or coupled .............. ............ ............ kg........... 3.7%  
Free   (A+,CA,E,IL, J) 
3.1%     (MX)  
28% 
7306.20.40 00  Other........... .............. ............ ............ ............. kg ........... 2%  
Free   (A+,CA,E,IL,
 J) 
1.6%     (MX)  
8.5% 
 7306.20.60   Tubing:** 
 Of iron or nonalloy steel ........... ............ ............  
...............  
1.1%  
Free   (A+,CA,E,IL, J) 
0.9%     (MX)  
5.5% 
 10  Imported with coupling................................. kg    
 50  Other.............................................................. kg    
7306.20.80   Of alloy steel ............. ............ ............ ............ .... .......... ..... 2.9% Free   (A+,CA,E,IL,
 J) 2.4%     (MX) 10% 
 10  Imported with coupling................................. kg    
 50  Other.............................................................. kg    
7306.30  Other, welded, or circular cross section, of iron or 
nonalloy steel:     
7306.30.10 00  Having a wall thickness of less than 
 1.65 mm.......................................................................  
kg...........  
4.8%  
Free   (A+,C 1 /,CA,
               E,IL,J) 
4%        (MX)  
25% 
   Having a wall thickness of 1.65 mm or 
 more: ...............    
7306.30.30 00  Tapered steel pipes and tubes principally used 
 as parts of illuminating articles ........................ kg........... 4.6% Free   (A+,CA,E,IL,J,
              MX) 45% 
7306.30.50   Other........... .............. ............ ............ ............ ......... ....... ........ 1.1% Free   (A+,C 1 /,CA,
               E,IL,J) 
0.9%     (MX) 5.5% 
 10  Suitable for use in boilers, superheaters, heat 
exchangers, condensers, refining furnaces and 
feedwater heaters, whether or not cold 
drawn............................................................... kg    
 15  Other, cold-drawn............................................ kg    
 20  Other, cold-rolled (cold-reduced) with a wall 
thickness not exceeding 2.54 mm ................... kg    
_______________ 
  1 /  See additional U.S. note 1 to this chapter. 
 * The word "Casing" manually circled in th e original version submitted by Argentina. 
 ** The word "Tubing" manually circled in th e original version submitted by Argentina.  WT/DS268/RW 
 Page E-53 
 
 
1999* 
 
O&fly3x 
 
CHAPTER 73 
 
ARTICLES OF IRON OR STEEL 
 
 
XV 
73-1 
Notes  
 
1. In this chapter the expression "cast iron " applies to products obtained by casting in which iron 
predominates by weight over each of  the other elements and which do  not comply with  the chemical 
composition of steel as defined in Note 1(d) to chapter 72. 
 2. In this chapter the word "wire
" means hot- or cold-formed products of any cross-sectional shape, of which 
no cross-sectional dimension exceeds 16 mm. 
 Additional U.S. Notes
 
 
1. For the purposes of heading 7304 or 7306, the ra te of duty "Free (C)" appearing in the "Special" 
subcolumn applies only to tubes and pipes with attached fittings, suitable for conducting gases or liquids. 
 
2. For the purposes of subheading 7307.19.30, the expression "ductile fittings " refers to fittings which contain 
over 2.5 percent carbon and over 0.02 percent of magnesium or of magnesium and cerium, by weight. 
 
   
 
     
 
    
 
    
 
     
_______________ 
 * The indication of year manually added in the original version submitted by Argentina. WT/DS268/RW 
Page E-54  
 
O&f2y3x 
XV 
73-17 
 
7306 (con.) 
 
 
7306.20 
 
 
 
7306.20.10  Other tubes, pipes and hollow profiles (for example, open 
seamed or welded, riveted or similarly closed), of iron or 
steel (con.):  Casing and tubing of a kind used in drilling for oil or 
 gas: 
  Casing:*  Of iron or nonalloy steel: 
 Threaded or coupled.... ............. ............. ........ ............... 3% Free   (A+,CA,E,IL,
 J) 
2.4%     (MX) 20% 
 30  Imported with coupling.............................. kg    
 90  Other........................................................... kg    
7306.20.20 00  Other........... .............. ............ ............ ............ ..... kg........... 0. 2% Free   (A+,CA,E,IL,
 J) 
0.2%     (MX)  (s)  1 / 1% 
 
7306.20.30  
00  Of alloy steel: 
  Threaded or coupled .............. ............ ............ kg........... 3.1%  
Free   (A+,CA,E,IL,
 J) 2.4%     (MX)    
28% 
7306.20.40 00  Other........... .............. ............ ............ ............ ... kg........... 1.6%  
Free   (A+,CA,E,IL, J) 
1.3%     (MX)  
8.5% 
 7306.20.60   Tubing:** 
 Of iron or nonalloy steel ........... ............ ............  
...............  
1%  
Free   (A+,CA,E,IL,
 J) 
0.7%     (MX)  
5.5% 
 10  Imported with coupling................................. kg    
 50  Other.............................................................. kg    
7306.20.80   Of alloy steel ............. ............ ............ ............ .... .......... ..... 2.4% Free   (A+,CA,E,IL,
 J) 
1.9%     (MX) 10% 
 10  Imported with coupling................................. kg    
 50  Other.............................................................. kg    
7306.30  Other, welded, of circular cross section, of iron or 
nonalloy steel:     
7306.30.10 00  Having a wall thickness of less than 
 1.65 mm.......................................................................  
kg...........  
4%  
Free   (A+,C 2 /,CA,
               E,IL,J) 
3.2%        (MX)  
25% 
   Having a wall thickness of 1.65 mm or 
 more:     
7306.30.30 00  Tapered steel pipes and tubes principally used 
 as parts of illuminating articles ........................ kg........... 3.8% Free   (A,CA,E,IL,J,
              MX) 45% 
7306.30.50   Other........... .............. ............ ............ ............ ......... ....... ........ 1% Free   (A+,C, 2 /, CA,
               E,IL,J) 
0.7%     (MX) 5.5% 
 10  Suitable for use in boilers, superheaters, heat 
exchangers, condensers, refining furnaces and 
feedwater heaters, whether or not cold drawn............................................................... kg    
 15  Other, cold-drawn............................................ kg    
 20  Other, cold-rolled (cold-reduced) with a wall 
thickness not exceeding 2.54 mm ................... kg    
 
_______________ 
 1 /  Rate suspended.  See general Note 3(c) (iv). 
 2 /  See additional U.S. note 1 to this chapter. 
 * The word "Casing" manually circled in th e original version submitted by Argentina. 
 ** The word "Tubing" manually circled in th e original version submitted by Argentina.   WT/DS268/RW 
 Page E-55 
 
 
ANNEX E-2 
 
ANSWERS OF THE UNITED STATES TO 
QUESTIONS OF THE PANEL 
 
  Q1. The Panel notes that Argentina argues, and the United States does not contest, that the US law requires the USDOC to make its ultimate sun set determinations on an order-wide basis.  
Please explain whether this is the case and, if so, cite the relevant provisions of the US law 
(including regulations and/or policy provisions) which require the US investigating authorities 
to make their sunset determinations on an order-wide basis and provide copies thereof. 
 1. Section 751(c)(1)(A) of the Tariff Act provid es that Commerce shall c onduct a sunset review 
of an anti-dumping duty order
 five years after publication of the anti-dumping duty order.1  T h e  
Statement of Administrative Action ("SAA") – an authoritative interpretive tool for the statute – 
confirms  that section 751(c)(1) requires Commerce to make a sunset determination on an order-wide, 
rather than a company-specific, basis.2 
 
Q3 through 8  
 
2. Questions 3 through 8 relate to "Waiver Provi sions".  The following discussion of the general 
statutory and regulatory scheme regarding waivers,  as well as US actions taken to address the DSB 
rulings on this issue, provides backgrou nd for the responses to these questions.  
 
3. Section 751(c)(4) of the Tariff Act permits a respondent interested party to waive its 
participation in a Commerce sunset review.    4. Subparagraph (A) of section 751(c)(4) – "[i]n general" – permits a party to "elect not to 
participate" in a Commerce sunset review, without pr ejudice to the party's right to participate in the 
injury-related sunset review conducted by the US In ternational Trade Commission.  By using the verb 
"elect", the statute contemplates that a party will "el ect not to participate" by taking affirmative action 
to signal that it has voluntarily cho sen to waive its participation, i.e., by submitting a waiver to 
Commerce.   
 
5. The "Effect of Waiver" is set forth in subparagraph (B) of section 751(c)(4).  Subparagraph (B) provides that, where an interested party "waives its participation pursuant to this 
paragraph [ i.e., paragraph (4) of section 751(c)]", Commer ce shall conclude that revocation of the 
order would be likely to lead to continuation or r ecurrence of dumping "with respect to that interested 
party". 
 
6. Thus, the only action required by section 751(c)(4 ) of the Tariff Act is that Commerce  make 
an affirmative company-specific likelihood finding as a consequence of a par ty choosing to submit a 
statement of waiver in a sunset review.  The Statement of  Administrative Action – an authoritative 
                                                     
 
1 19 USC. 1675(c)(1) (Exhibit ARG-33). 
2 SAA at 879 ("Commerce and the [US International Trade] Commission will make their sunset 
determinations on an order-wide, rather than a company-sp ecific basis.") (Exhibit US-12).  The SAA is a type of 
legislative history.  In the United States, legislative hi story is often considered fo r purposes of ascertaining the 
meaning of a statute.  The function of the SAA is set forth in the SAA itself.  See US Answers to First Set of 
Panel Questions (8 January 2004), paras. 97-98, United States – Sunset Reviews of Anti-Dumping Measures on 
Oil Country Tubular Goods From Argentina  (WT/DS268). WT/DS268/RW 
Page E-56  
 
interpretive tool for the statute – confirms this plain reading of the statutory provisions.  Specifically, the SAA states,  
To reduce the burden on all parties involve d, new section 751(c)(4) permits foreign 
interested parties ... to waive their part icipation in a Commerce sunset review.  If 
Commerce receives such a waiver , Commerce will conclude that revocation ... would 
be likely to lead to continuation or recurrence of dumping ... with respect to the 
submitter .
3 
 7. In other words, the statute permits parties to avoid incurring the time and expense of 
participating in the Commerce side of a sunset revi ew when they wish only to contest the likelihood 
of continuation or recurrence of injury before th e US International Trade Commission.  A party may 
do so by submitting a waiver statement to Commerce.  8. Commerce implemented the statutory waiver  provision in its 1998 Sunset Regulations by 
setting forth the timing and contents of a statement of waiver.
4  The Panel referred to this category of 
waiver as "affirmative waiver."5  At the same time, Commerce indicated that it also would treat failure 
to file a complete substantive response to the sunset review initiation notice as a waiver of 
participation.6  As Commerce clarified in the Preamble to its 1998 Sunset Regulations, "failure to file 
a complete substantive response ... also will be treated as a waiver of participation".7  The Panel 
referred to this category of waiver as "deemed waiv er" and correctly found that the deemed waiver 
category was "create[d]" by section 351.218(d)(2 )(iii) of Commerce's 1998 Sunset Regulations.8  
 9. As discussed in the US submissions, to address the adverse findings of the DSB concerning both categories of waiver, Commerce amended its sun set regulations in October 2005 to eliminate the 
possibility that Commerce's orde r-wide likelihood determinations  would be based on assumptions 
about likelihood.  Specifically, Commerce revised th e so-called "affirmative waiver" provisions so 
that a party electing not to participate in the Comme rce sunset review would include in its waiver a 
statement that it would be likely to dump if the order were revoked.
9  Commerce also removed 
section 351.218(d)(2)(iii) from its s unset regulations, thus eliminati ng the provision that created the 
so-called "deemed waiver" category.10  As explained in the Preamble to the amended sunset 
regulations, Commerce "will no longer make company- specific likelihood findings for companies that 
fail to file a statement of waiver and fail to file  a substantive response to the notice of initiation".11 
 
Q3. The Panel notes that Section 751 (c)(4)(B) of the Tariff Act of 1930 requires the USDOC 
to find likelihood with respect to companies which waive their right to participate.  The Panel 
also notes that Section 218(d)(2)(ii) of the Regula tions stipulate that "every statement of waiver 
must include a statement indicating that the re spondent interested party waives participation in 
the sunset review before the Department; a statement that the respondent interested party is likely to dump". 
 
                                                     
 
3 SAA at 881 (Exhibit US-12).  
4 See 19 C.F.R. 351.218(d)(2)(i) and (ii) (1998) (Exhibit US-13).  Subparagraph (i) sets forth the timing 
for filing a statement of waiver, and subparagraph (ii)  indicates the contents of a statement of waiver. 
5 Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular 
Goods From Argentina , WT/DS268/R, para. 7.83 ("Panel Report"). 
6 19 C.F.R. 351.218(d)(2)( iii) (1998) (Exhibit US-13).  
7 Preamble to Commerce 1998 Sunset Regulations, 63 FR at 13518 (emphasis added) (Exhibit US-14). 
8 Panel Report, paras. 7.83 and 7.85. 
9 See 19 C.F.R. 351.218(d)(2)(ii) (2005), 2005 Sunset Regulations, 70 FR at 62064 (Exhibit ARG-12). 
10 See 2005 Sunset Regulations, 70 FR at 62064 ("Section 351.218 is amended by ... removing and 
reserving paragraph (d)(2)( iii) ....") (Exhibit ARG-12). 
11 Preamble to 2005 Sunset Regulations, 70 FR at 62062 (Exhibit ARG-12).  WT/DS268/RW 
 Page E-57 
 
 
 Please explain, in light of the above-refe renced provisions of the US law and its other 
provisions that may also be relevant, what the US law stipulates with respect to respondents that do not respond at all to the USDOC's que stionnaire and those that provide incomplete 
responses.  Specifically, please explain whether and how the US law also directs the USDOC to 
find likelihood for these exporters. 
 10. United States law does not direct Commerce to find likelihood with respect to a respondent 
that does not respond at all to a Commerce questionnair e or that provides an incomplete response to a 
Commerce questionnaire.  As discussed above, an d as the original Panel found, Commerce's 1998 
Sunset Regulations provided for the treatment of fail ure to file a complete substantive response to the 
sunset review initiation notice as a waiver of participation.  Such treatment, i.e., deemed waiver, was 
not required by the statute, but rather was created  by section 351.218(d)(2)(iii) of the regulations.  
Commerce  removed section 351.218(d)(2)(iii) from its  sunset regulations, thereby eliminating the 
concept and consequences of a deemed waiver.
12 
 
11. Thus, US law does not stipulate any specific finding with respect to a respondent that does 
not respond at all to a Commerce questionnaire or that provides an incomplete response to a Commerce questionnaire.  Rather, where a respondent  does not respond to a questionnaire or provides 
an incomplete response, section 776 of the Tariff Act provides for Commerce's use of "facts otherwise 
available" in reaching its determination,
13 subject to certain conditions.14   Commerce regulations 
concerning use of facts available in a sunset  review also provide for reliance on, e.g ., evidence of 
dumping from prior Commerce determinations and in formation contained in parties' substantive 
responses to the sunset notice of initiation.15  That is the approach identified by the original Panel in 
explaining the options available to an investigating au thority when an exporter fails to participate in a 
proceeding.16  As Commerce explained in its amended s unset regulations, in response to commenters 
who noted that the regulations no longer specify how Commerce will address the situation where a 
respondent interested party does not participate in a sunset review,  
 
As a general matter, the Department  will make its order-wide, likelihood 
determination on the basis of the facts and in formation available on the record of the 
sunset review which may include, where appropriate, use of facts available as provided for in the statute and regulations.
17 
 
12. As previously stated, US law does not require Commerce to make company-specific 
likelihood findings with respect to a respondent inter ested party that fails to participate in the sunset 
review.  Commerce's sunset determinations supports  this fact.  Since the 2005 Sunset Regulations 
went into effect, Commerce has conducted and comple ted multiple sunset review proceedings.  In 
several of the sunset proceedings, there was no responde nt interested party  participation.  Under these 
circumstances, and as is evident from analy ses in the decision memoranda, Commerce based its 
likelihood determination on the facts and informati on on the record of the sunset review; Commerce 
did not find that a company had elected to waive part icipation or make a company-specific likelihood 
determination with respect to the co mpanies that failed to participate.18 
 
                                                      
12 See 2005 Sunset Regulations, 70 FR at 62064 ("Section 351.218 is amended by ... removing and 
reserving paragraph (d)(2)( iii) ....") (Exhibit ARG-12). 
13 19 USC. 1677e (Exhibit US-15). 
14 See 19 USC. 1677m(e) ("Use of Certain Information") ( e.g., the information is submitted by the 
established deadline, and the information can be verified) (Exhibit US-16). 
15 See 19 C.F.R. 351.308(f) (1998) (Exhibit US-17). 
16 Panel Report, para. 7.95. 
17 Preamble to 2005 Sunset Regulations, 70 FR at 62063 (Exhibit ARG-12) . 
18 See, e.g. , Final Results of the Expedited Sunset Review of the Anti-Dumping Duty Order on Fresh 
Garlic from the People's Republic of China, Issues and Decision Memorandum (1 June 2006) (Exhibit US-18). WT/DS268/RW 
Page E-58  
 
Q4.  
 
(a) Please explain generally the relevance of the company-specific finding of likelihood under 
Section 751 (c)(4)(B) to the USDOC's order-wide determination.  
 13. As discussed in response to Question 1, un der US law Commerce is required to make its 
ultimate sunset determination on an order-wide b asis.  In making its order-wide determination, 
Commerce must consider all information and argument on the record of the sunset proceeding.  Thus, 
while Commerce would consider a company-speci fic likelihood finding in making its order-wide 
likelihood determination, the rele vance of such a company-specific finding to the ultimate likelihood 
determination always would depend on the facts on th e administrative record in that sunset review.  
Although Argentina has failed to provide any supp ort for its vague assertion that probative evidence 
contradicting an exporter's admission of likel y dumping could even exist, Commerce would 
nevertheless take such as-yet-hypothetical info rmation into account when making its order-wide 
likelihood determination.  In such a situation, the weight give n to a company-specific finding would 
be adjusted accordingly. 
 (b) Given the mandate of Section 751 (c)(4)(B) of the Tariff Act to find likelihood for 
companies that waive participation, would it be accurate to say that the USDOC has to 
find likelihood in its ultimate order-wide dete rmination in every sunset review where the 
USDOC finds likelihood for individual companies that waive participation? 
 
14. No.  The only action mandated by section 751(c )(4) of the Tariff Act is that Commerce make 
an affirmative company-specific likelihood finding as a consequence of a party submitting a statement 
of waiver in a sunset review.  As discussed above, the relevance of a company-specific finding always 
would depend on the facts on the administrative record in that sunset review.  Commerce is not 
required to find likelihood in its ultimate order-wide determina tion just because a company elects not 
to participate in the sunset review.     
Q5. Please explain whether there has been any sunset review where the USDOC found 
likelihood for individual exporters by virtue of Section 751 (c)(4)(B) of the Tariff Act and found 
no likelihood on an order-wide basis.  If so, please provide a copy of the USDOC's final 
determination in such reviews.  
 
15. Commerce amended its sunset regulati ons in October 2005 to address the DSB 
recommendations and rulings concerning the "wai ver provisions."  As discussed above, Commerce 
eliminated the so-called "deemed waiver" provision and revised the so-called "affirmative waiver" 
provisions so that a party electing not to particip ate in the Commerce sunset review would include a 
statement that it would be likely to dump if the or der were revoked.  The amended regulations were 
effective for sunset reviews initiated on or afte r 31 October 2005.  Commerce has made no company-
specific likelihood findings pursuant to section 751(c )(4)(B) of the Tariff Act in sunset reviews 
initiated on or after 31 October 2005, because no compan y has filed a waiver statement in any of these 
reviews.  In other words, the condition precedent fo r application of section 751(c)(4)(B) of the Tariff 
Act has not been implicated in any sunset re views conducted since Commerce amended its sunset 
regulations in October 2005.  
Q6. The Panel notes that Section 751(c)(4) of the Tariff Act of 1930 provides, in relevant part: 
(4) Waiver of participation by certain interested parties 
 
(A) In general 
 An interested party described in section 1677(9)(A) or (B) of this 
title may elect not to participate in a review conducted by the 
administering authority under this subsection and to participate  WT/DS268/RW 
 Page E-59 
 
 
only in the review conducted by the Commission under this 
subsection. 
(B) Effect of waiver 
 In a review in which an interested party waives its participation 
pursuant to this paragraph, the administering authority shall 
conclude that revocation of th e order or termination of the 
investigation would be likely to lead to continuation or recurrence of dumping or a countervailable subsidy (as the case may be) with respect to that interested party.   (emphasis added) 
 
(a) Please explain whether electing not to  participate within the meaning of 
subparagraph (A) constitutes a waiver within the meaning of subparagraph B.  
 
16. Yes, electing not to participate within th e meaning of subparagraph (A) does constitute a 
waiver within the meaning of subparagraph (B).  Sections 351.218(d)(2)(i) and (ii) of Commerce's 
2005 Sunset Regulations prescribe the timing and conten ts of the waiver statement to be filed by a 
party electing not to participate in a sunset review.  
(b) How does an exporter elect not to particip ate within the meaning of subparagraph A?  
Does remaining silent, i.e. not submitting any response to the USDOC's questionnaire, 
constitute an election not to participate with in the meaning of subparagraph (A)?  If so, 
does this constitute a waiver fo r the purposes of subparagraph B?  
 
17. As discussed above, section 751(c)(4)(A) of the Tariff Act contemplates that a party will 
"elect not to participate" by taking affirmativ e action to signal its waiver of participation, i.e., by 
submitting a waiver to Commerce.  The Statemen t of Administrative Action – an authoritative 
interpretive tool for the statute – c onfirms this reading of the statute.
19  Commerce implemented the 
statutory waiver provision in its 1998 Sunset Regulations by specifying the timing and contents of a waiver statement.  In October 2005, Commerce revised  its regulations so that a party electing not to 
participate in the Commerce sunset review would in clude in its waiver a statement that it would be 
likely to dump if the order were revoked.  Commerce's revised sunset regulations, at 
19 C.F.R. 351.218(d)(2)(i) and (ii), prescribe how an exporter may elect not to participate within the 
meaning of subparagraph (A) of sec tion 751(c)(4) of the Tariff Act. 
 18. Remaining silent, i.e., not submitting any response, does not constitute an election not to 
participate within the meaning of subparagraph (A ) and does not constitute a waiver for purposes of 
subparagraph (B).  As discussed above, in October 2005 Commerce removed section 
351.218(d)(2)(iii) from its sunset regulations, thus e liminating the provision that created the so-called 
"deemed waiver" category.
20  As a result, Commerce "will no longer make company-specific 
likelihood findings for companies that fail to file a statement of waiver and fail to file a substantive 
response to the notice of initiation."21  As discussed above, since the 2005 Sunset Regulations went 
into effect, Commerce has conducted and completed mu ltiple sunset review proceedings.  In several 
of the sunset proceedings, respondent interested pa rties failed to file a substantive response to the 
notice of initiation.  Under these circumstances, Commerce based its likelihood determination on the 
facts and information on the record of the sunset review; Commerce did not conclude that these 
                                                      
19 SAA at 881 (" If Commerce receives such a waiver , Commerce will conclude that revocation ... 
would be likely to lead to continuation or recurrence of dumping ... with respect to the submitter ") (emphasis 
added) (Exhibit US-12). 
20 See 2005 Sunset Regulations, 70 FR at 62064 ("Section 351.218 is amended by ... removing and 
reserving paragraph (d)(2)( iii) ....") (Exhibit ARG-12) . 
21 Preamble to 2005 Sunset Regulations, 70 FR at 62062 (Exhibit ARG-12) . WT/DS268/RW 
Page E-60  
 
parties had elected to waive participation, nor  did Commerce make a company-specific likelihood 
determination with respect to the co mpanies that failed to participate.
22 
 
Q7. Under what circumstances would a signed  waiver statement constitute a sufficient 
evidentiary basis for an affirmative likelihood determination?  Would your response depend on 
the circumstances of a given sunset review?  For example, would your response differ in relation 
to:  (i) a review in which the only exporter subm its a signed waiver statement; (ii) a review in 
which, of the 20 exporters involved, 10 submit a signed waiver statement and 10 participate cooperatively;  (iii) a review in which, of the 20 exporters involved, 1 submits a signed waiver 
statement and 19 remain silent?    How would the company-specific conclusions of likelihood 
with respect to exporters that waive their right to participate (by signing a statement of waiver) 
in these scenarios be reflected in an ultimate order-wide determination?  
19. Commerce is required to make its ultimate sun set determination on an order-wide basis.  In 
making its order-wide determination, Commerce must  consider all information and argument on the 
record of the sunset proceeding.  Commerce would consider a company's waiver statement, including 
the company's statement that it would be likely to  dump if the order were revoked, in making its 
order-wide likelihood determination.  However, whet her such a statement could constitute a sufficient 
evidentiary basis for an affirmative likelihood dete rmination would depend on the specific facts and 
circumstances of a given sunset review.  Howeve r, as discussed above in response to Question 5, 
Commerce has made no company-specific likelihood findings in sunset reviews subject to the 
amended sunset regulations because no company has f iled a waiver statement in any of these reviews.  
Because no company has filed a waiver statemen t, there are no examples of how Commerce has 
reflected a company-specific likelihood determinati on(s) in the ultimate order-wide determination, 
and the question is a purely hypothetical one.  The fact that no company has filed a waiver statement 
is not surprising.  Waiver statements were rare in  sunset reviews under the 1998 Sunset Regulations.  
Waiver statements in sunset reviews under the 2005 S unset Regulations likely also  will continue to 
be, as Argentina itself concedes, "rarely ... forthcoming".
23   
 20. The facts the Panel has identified in its qu estion would form part of the record and by 
regulation would be taken into account in making th e order-wide determination.  The probative value 
of any particular fact would depend on the other facts on the record. 
 
Q8. The Panel notes that Section 751 (c)(4) of  the Tariff Act does not define the term 
"waiver".  The Panel also notes that Section 351.218(2)(ii) of the Regulations states that a 
statement of waiver "must include a statement indicating that the respondent is likely to 
dump." 
 
Can this, in your view, be interpreted to mean that the Regulations nullify, or limit the 
scope of, the Statute in so far as the Statute refers to waiver. 
 
21. The regulations neither nullify nor limit the scope of section 751(c)(4) of the Tariff Act, 
rather, as provided under US administrative law, the regulations implement the statute and help define 
the conditions under which a party will "elect not to participate." 
 22. As discussed above, subparagraph (A) of secti on 751(c)(4) – "[i]n general" – permits a party 
to "elect not to participate" in a Commerce sunset  review without prejudice to the party's right to 
participate in the injury-related sunset review c onducted by the US International Trade Commission.  
By using the verb "elect", the statute contemplates th at a party will "elect not to participate" by taking 
                                                     
 
22 See, e.g. , See, e.g. , Final Results of the Expedited Sunset Review of the Anti-Dumping Duty Order on 
Fresh Garlic from the People's Republic of China, Issues and Decision Memorandum (1 June 2006) 
(Exhibit US-18). 
23 Argentina First Written Submission, para. 208.  WT/DS268/RW 
 Page E-61 
 
 
affirmative action to signal its  waiver of participation, i.e., by submitting a waiver to Commerce.   The 
Statement of Administrative Action – an authoritative interpretive tool for the statute – confirms this 
reading of the statute.  Specifically, the SAA states,  
To reduce the burden on all parties involve d, new section 751(c)(4) permits foreign 
interested parties ... to waive their part icipation in a Commerce sunset review.  If 
Commerce receives such a waiver , Commerce will conclude that revocation ... would 
be likely to lead to continuation or recurrence of dumping ... with respect to the 
submitter .
24 
 
23. Sections 351.218(d)(2)(i) and (ii) of Commerce' s sunset regulations implement the statutory 
waiver provision by prescribing how an exporter may elect not to participate, i.e., waive participation, 
in a sunset review.    24. Prior to the October 2005 amendments to th e sunset regulations, Commerce also treated 
failure to file a complete substantive response to  the sunset review initiation notice as a waiver of 
participation.  As the Panel correctly found, such "deemed waivers" were "create[d]" by 
section 351.218(d)(2)(iii) of Commerce's 1998 Sunset Regulations.
25  There is no dispute that the 
regulatory provision pertaining to the deemed waiver category has been removed from Commerce's sunset regulations.  The scope of the waiver provisi ons in the regulations is now simply coterminous 
with the statute. 
 
Q10. 
 
(a) The Panel notes that the USDOC asked the Argentine exporters to submit their 
consolidated and unconsolidated financial statements for the 1996-2000 period, as well 
as to provide information relating to their costs and the volume of their shipments to the 
United States in the period of review.  
 
Please explain for what purpose the USDOC so ught the mentioned information.  More 
specifically, please explain whether the USDOC in tended to, and the extent to which it did, 
determine whether these exporters actually dum ped in the period of review, and how this 
relates to the obligations under Articles 11.3 and/or 2.1 of the Agreement.  Please explain how 
exactly the USDOC intended to, and the extent to which it did,  base its determination regarding 
the existence of dumping on the costs of the exporters, citing any record evidence supporting 
your response. 
 25. Bearing in mind the obligation to make a determination as to whether dumping was likely to 
continue or recur if the order were revoked, an d bearing in mind that there were no administrative 
reviews of Argentine companies during the sunset period of review (and that Siderca had ceased shipping), Commerce sought information that would permit it to make a dete rmination as to whether 
dumping would likely continue or recur if the or der were revoked, includi ng evaluating the overall 
financial health of the Argentine OCTG industry.  Aware that Acindar, the only exporter, had no 
home market or third country sales, Commerce drafte d the questionnaire with the intention of asking 
questions that respondents could actually answer, a nd therefore requested the product-specific cost 
data to provide an estimate of the normal value.
26   Had the Argentine producers been able to report 
their actual product-specific cost information, it could have been verified by tying the costs back to 
                                                      
24 SAA at 881 (Exhibit US-12). 
25 Panel Report, paras. 7.83 and 7.85. 
26 Counsel for US Steel  noted that respondents would not have a viable home market.  (Letter from 
Skadden, Arps, Exhibit ARG-27, pp. 5, 9.)  In response, Siderca did not assert that its home market was viable 
(Exhibit ARG-19, p. 7); Acindar did not file an y comments in response to petitioners' letter.  WT/DS268/RW 
Page E-62  
 
the financial statements.  Commerce did not seek to perform a calculation of a margin of dumping, nor was it obliged to perform such a calculation.  26. As the United States has noted, Article 11.3 do es not require that a likelihood determination 
be based on a determination of the existence of dumping.  Nor did Commerce seek to establish the 
existence of dumping.  Instead, Commerce exam ined the available evidence on the exporters' 
behaviour in order to ascertain whether dumping was likely to continue or recur if the order were revoked.  To do so, Commerce sought to compare Ac indar's product-specific costs with the importer 
data providing the prices of its US sales.  Howeve r, none of the Argentine producers maintained their 
product-specific cost data.  Therefore, Commer ce could not examine these costs to ascertain the 
companies' past behaviour.  Acindar provided its fi nancial statements as requested, but provided no 
other information that could assist Commerce in ma king its determination fo r the period 1995-2000.  
 27. Therefore, Commerce used the other informa tion available on the record of the proceeding 
with respect to Acindar – the US average prices (w hich included goods exported to the United States) 
– and compared them with Acindar's sales prices.   Acindar's sales prices were lower than the US 
average prices.  Commerce also reviewed Acindar's financial statements, which reflected its weakened financial position.  Based on the totality of the evidence, Commerce concluded that it was 
likely that dumping would continue or recur if the order were revoked.
27 
 
(b) If the USDOC intended to determine whether the Argentine exports to the United States 
were dumped during the period of review, please explain why the USDOC did not seek 
information relating to these companies' domest ic sales prices and their export prices to 
the United States.  Please explain how the USDOC intended to, and the extent to which 
it did, determine whether these compani es dumped in the past on the basis of 
information that it sought from them, i.e. their costs and the volume of their shipments 
to the United States, citing any record evidence supporting your response.  Please 
explain how this relates to the obligatio ns under Articles 11.3 and/or 2.1 of the 
Agreement.   
 
28. Commerce did not intend to determine whethe r the Argentine exports to the United States 
were dumped during the period of review.  Rath er, Commerce sought to collect information about 
past behaviour to facilitate its evaluation of what would be likely to happen in the future. Commerce 
did not seek Argentine producers' export prices to the United States because it was aware of the brevity of the time available to conduct the proceedi ng.  Commerce considered that, in the context of 
the limited amount of time available to conduct the proceeding, it could place the US price information based on Acindar's importers' data on the record prior to the due date for the respondents' 
answers to the questionnaires and, having given th e respondents the opportunity to comment on that 
data, instead have the respondents focus on gather ing data Commerce could not access – cost data.  
Therefore, respondents were free to  discuss the relevance of the da ta on the record as early as 
22 November 2005, and to provide alternative data  should they consider the existing price data 
inappropriate.  
29. Siderca actually proposed comparing its cost s to the Preston price data, in lieu of the 
comparison methodology proposed by petitioners' counsel.
28  Petitioners' counsel had proposed using 
Argentine average unit values based  on Argentina's export classification system, but Siderca argued 
that such data did not form the most appropriate basis for comparison.  Siderca then suggested that 
comparing its costs to the Preston price data, rather  than the Argentine average unit values supplied by 
petitioners was more appropriate.   
 
                                                      
27 Section 129 Determination, at 10 (Exhibit ARG-16). 
28 7 December Letter from Sider ca, p. 5 (Exhibit ARG-19).  WT/DS268/RW 
 Page E-63 
 
 
Q11. 
 
(a) Please explain to what extent, if at all, an investigating authority is bound by the 
definition of dumping found in Article 2.1 of the Agreement in a determination regarding the existence of dumping in the period of review in a sunset review under 
Article 11.3 of the Agreement.  In other words, in your view, can an investigating 
authority determine the existence of dumping without having regard to the normal value and export price of the exporter(s) under review?   
 
30. The Appellate Body in US – Corrosion Resistant Steel Sunset Review explained the 
relationship between Article 2.1 and Article 11.3, noting that Article 2.1 "describes the circumstances 
in which a product is to be considered as being dumped for purposes of the entire Anti-Dumping 
Agreement , including Article 11.3".
29  The Appellate Body went on to state that "the question for 
investigating authorities, in making a likelihood de termination in a sunset review pursuant to 
Article 11.3, is whether the expiry of the duty would be likely to lead to continuation or recurrence of 
dumping . . . (that is, to the introduction of that product into the commerce of the importing country at 
less than its normal value)".30  Notably, however, the Appellate Body ultimately concluded that – 
even though the definition of dumping applies in sunset reviews, investigating authorities are nevertheless not obligated to calculate a margin of dumping.
31  Nor did the Appellate Body conclude 
that an investigating authority must calculate a futu re normal value and a future export price, or a past 
normal value and a past export price.  Rather, th e Appellate Body noted that Article 11.3 does not 
prescribe a methodology, nor identify particular factors to be examined. 
 31. The question for Commerce in the Section 129 proceeding was whether dumping would be 
likely to continue or recur if the order were revoked; in other words, would normal value likely exceed export price.  To make that forward-looki ng determination, Commerce examined the past 
behaviour of the two identified Argentine exporters .  Commerce was aware that Acindar did not have 
a viable home market or third country sales.
32  Rather than asking respondents to provide information 
that Commerce knew the lone exporter could not provide, Commerce instead asked respondents to 
provide product-specific cost data.  Commerce did so for the purpose of examining respondents' past 
behaviour over the life of the order.  Respondents were unable to provide actual product-specific cost 
data.  Commerce therefore used "other independent sources" of information as set out in paragraph 7 
of Annex II ( i.e., "published price lists, official import statistics and customs returns").  On the basis 
of Acindar's pricing behaviour, as evidenced by the importer data, Commerce concluded that it was 
likely that Acindar had dumped during the life of the order.  Acindar offered no contrary evidence.  
As a result, Commerce relied on the importer data a nd price lists as one basis to support its ultimate 
conclusion that dumping would be likely to cont inue or recur if the order were revoked. 
 
(b) In your view, is there a difference between calculating the margin of dumping for an 
exporter and determining the existence of dumpi ng for that exporter?  In other words, 
can an investigating authority determine that an exporter dumped in a given period in the past without calculating a margin of dumping or relying on a margin already calculated in the past? If your response is in  the affirmative, please explain whether such 
a determination can be made without having  regard to the two components of dumping, 
i.e. normal value and export price, set out in Article 2.1 of the Agreement. 
 
                                                     
 
29 Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on 
Corrosion-Resistant Carbon Steel Flat Products from Japan , WT/DS244/AB/R, para. 109 (adopted 
9 January 2004) (" US – Corrosion-Resistant Steel Sunset Review (AB) "). 
30 See US – Corrosion-Resistant  Steel Sunset Review (AB) , para. 109. 
31 See US – Corrosion-Resistant  Steel Sunset Review (AB) , para. 127. 
32 Oil Country Tubular Goods Other than Drill Pipe , 68 Fed. Reg. 13,262 and Issues and Decision 
Memorandum, at Comment 1 (Exhibit US-3). WT/DS268/RW 
Page E-64  
 
32. Article 5.1 provides for an investigation to de termine the "existence, degree and effect" of any 
alleged dumping.  Therefore, the Anti-Dumping Ag reement itself contemplates a distinction between 
the existence of dumping and the degree of dumping.  For example, an exporter could stipulate that its 
normal value exceeded export price in a particular period.  In that case, dumping would exist, but it would not be possible to calculate a margin of dumping.  
 
33. Commerce did not determine the existence or degree of dumping during the sunset period of review, nor was it obliged to do so.  Instead, Comme rce examined the past behaviour of Acindar, 
including Acindar's prices as reflected on the im porters' customs entries, as well as the prevailing 
price in the United States, and concluded that it was likely that Acindar had dumped during the sunset 
period of review.  There was no evidence to the contrary on the record of the proceeding.  
 34. Notably, Acindar did not even attempt to ar gue that it had not dumped, or that it would not 
dump if the order were revoked; rather, Acindar ar gued that it had not been a significant producer of 
OCTG during the sunset period of review.
33  However, Acindar was, of course, the only Argentine 
exporter of OCTG during the sunset period of review .  Based on an examination of all of the facts, 
Commerce concluded that Acindar was likely to dum p if the order were revoked – in other words, 
Commerce concluded that Acindar's export price would likely be lower than normal value.  
(c) On what basis could an investigating authority properly find affirmative likelihood of 
continuation or recurrence of dumping oth er than with regard to the existence of 
dumping?  
 
35. A determination of likelihood of continuati on or recurrence of dumping is made on the basis 
of the facts before the investigating authority.  Gi ven the forward-looking nature of the inquiry, which 
must presume a fact not in existence (termination of the order), there is no one methodology, no single 
factor, that must be taken into account in reaching any conclusion about what is likely to happen in 
the future.  At a minimum, no determination of the existence of dumping is necessary; Article 11.3 
does not require it.
34  Indeed, the Agreement itself recognizes that a finding of no dumping is not 
dispositive of the question of whether dum ping is likely to continue or recur.35  The probative value of 
other factors would depend on the facts of each determination.  Q12. The Panel notes Argentina's claim regarding the comparison the USDOC made between Acindar's export prices and the average transact ion price (by weighted average value) that 
prevailed in the US market for the subject pr oduct.  The Panel also notes that the USDOC 
inferred from this comparison the conclusion th at Acindar was likely dumping in the period of 
review.  
 
(a) Please explain the legal basis under the Agreement for basing a determination of 
dumping, be it likely or actual, on a comparison of an exporter's export price with the average transaction price (by weighted average  value) that prevails in the country of 
imports for the subject product.  
 36. The United States considers that the circumstan ces of this sunset review must be kept in 
mind.  First, the sole known exporter of  Argentine OCTG to the United States prior  to the sunset 
review stopped shipping to the United States after the imposition of the order.  Therefore, there were no administrative reviews of that shipper and no dumping margins calculated pursuant to any such 
review.  Second, a new entrant into the US market appeared anonymously during the sunset period of 
                                                     
 
33 Acindar Questionnaire Response (Exhibit ARG-14).  
34 Article 11.3 does not require separate determinations as to whether dumping is likely to continue, 
versus whether dumping is likely to recur. 
35 See Article 11.3 (dumping may recur ) and Footnote 22 (absence of  dumping in the most recent 
review does not require a negative determination in a sunset review).  WT/DS268/RW 
 Page E-65 
 
 
review and was not subject to administrative review  until after the sunset period of review.  There 
was, therefore, for the sunset period of review, a limited amount of information, attributable entirely 
to the respondents' own choices (to st op shipping and to decline to par ticipate in the sunset review).  
The answer cannot be the one advocated by Argentina – that a lack of shipping activity, or a failure to 
make oneself known, necessarily requires a negative de termination as to what would happen if the 
order were revoked.  It would be odd indeed for th e Agreement to contemplate that the order may be 
continued even if a respondent has obtained a zero margin in its most recent administrative review, 
but that the order must be revoked if respondents ma nage to avoid having their transactions examined.  
The investigating authority must do what it can with  the information it has, including the information 
submitted – or not submitted – by the respondents.  
 
37. Article 11.3 does not prescribe any particular  methodology to be used by an investigating 
authority in making a likelihood determination in a sunset review.36  Commerce did not examine the 
existence of dumping, nor did it calculate a dumping margin; nor is an investigating authority obliged 
to do so under Article 11.3.  As the Appellate B ody has recognized, "a broad range of factors other 
than import volumes and dumping margins is potentially relevant to the authorities' likelihood 
determination".37  Therefore, the legal basis for Commerc e's analysis of the facts before it is 
Article 11.3, which does not prescribe the met hodology or the factors to be examined.  
 38. The United States notes that the information Commerce examined is precisely the information 
identified in paragraph 7 of Annex II – customs return s and price lists.  As the United States noted in 
its closing statement, if the Argentine respondents c onsidered that there was a more suitable price list 
to be considered, the respondents were free to pl ace such a list on the record.  Commerce placed the 
Preston price list on the record on 22 November  2005, over a week before the respondents' 
questionnaire responses were due  
39. Finally, as discussed below, in additi on to comparing Acindar's export prices to 
contemporaneous prices in the United States for th e same category of merchandise, Commerce also 
considered the condition of the OCTG market at the end of the sunset review period.  
 
(b) The Panel notes Argentina's assertion th at the USDOC ignored certain factors that 
affected this comparison, such as differences in the physical characteristics of the 
products compared, the levels of trade at which the comparison was made, as well as 
differences relating to transportation costs. 
 
Please explain in detail and by referring to the relevant parts of the record, whether any 
of these factors were known to the USDOC in the Section 129 proceedings at issue and, if so, 
whether this was taken into account. 
 
40. The United States considers that, in keeping wi th the scope of the Panel's review as provided 
under Article 17.5(ii) of the Anti-Dumping Agreemen t,  it is important to recall the facts and 
arguments before the investigating authority.  In response to Commerce's request for data on ten 
product categories, Siderca argued that there were  "literally thousands" of product combinations 
within Commerce's categories
38, suggesting that no comparison at all was possible.  In response to 
comments from petitioners' counsel, Siderca then  argued that Commerce should make an even 
broader comparison than the one Commerce had proposed in the questionnaire, and Siderca, in fact, 
used the Preston Pipe and Tube data as the basis for comparison.39  Moreover, Argentina neglects to 
provide a method for making such adjustments given that  the data is not that specific.  Had Argentine 
                                                      
36 US – Corrosion-Resistant Steel Sunset Review (AB) , para. 149. 
37 US – Corrosion-Resistant Steel Sunset Review (AB) , para. 186. 
38 Siderca's Questionnaire Response, p. 4 (Exhibit ARG-15). 
39 Siderca's 7 December Letter, p. 5 (Exhibit ARG-19). WT/DS268/RW 
Page E-66  
 
producers maintained their product-specific cost da ta from the period, Commerce would have been 
able to conduct its analysis on a more specific level.  41. Recalling that Commerce was not calculating a dumping margin pursuant to Articles 2.2 et seq , Commerce nevertheless took into account characteris tics that would have the greatest effect on 
price.
40  The Preston Pipe & Tube Report separated products by type of OCTG, whether welded or 
seamless, and whether carbon or alloy.  Its segre gation of tubing from casing also addressed much of 
the size concern Argentina now raises, as tubing is a small tubular product in limited sizes, and casing 
is larger size material.  Even in the comparison Ar gentina raised during the panel hearing, Argentina 
conceded that there is minimal overlap in sizes between tubing and casing.  Additionally, though the 
Preston Pipe & Tube Report does not distinguish be tween end finish (e.g. plain vs. threaded and 
coupled), the universe of material included in the carbon welded tubing and carbon welded casing 
groups does include both plain and threaded and coupl ed material, diminishing any impact this may 
have on price comparisons.  With respect to trans portation costs, we note that not all of the Preston 
Publishing selling prices included transportation cost s.  The Preston Pipe data included both domestic 
and import shipments.  The terms of the latter were FOB mill.41  Even had Commerce been able to 
adjust for these factors, Acindar's sales prices were  so far below the US average prices that the end 
result would likely have not changed.  42. The United States recalls that two of the exhibits Argentina presented during its oral 
argument, Exhibit ARG-34 And Exhibit ARG-35, were not on the record of the Section 129 
proceeding.  Therefore, Commerce did not have  this information before it when making its 
determination.  Consideration of such information cannot be reconcile d with Article 17.5 (ii) of the 
Agreement.    43. Even if the Panel were to consider the f acts introduced here, and not in the Section 129 
determination, the price lists included therein are for seamless OCTG, yet Acindar sold only welded 
OCTG – a product with a very different cost and price structure.  Furthermore, a price list is not the actual price arrived at for the sale.  In fact, disc ounting of list prices was common practice during the 
period because of the depressed condition of the OCTG market.  44. Argentina asserted that the carbon versus a lloy comparison shows a difference of less than 
10 per cent.
42  This comparison fails to accurately reflect  the parameters of carbon and alloy products 
sold in the marketplace.  Whereas there are a li mited number of carbon grades, there are a multitude 
of alloy grades.  Alloy market prices of OCTG will reflect a composite of these alloy grades.  In fact, 
following the same logic of Argentina, if we were to compare non-normalized J55 carbon tubing to 
alloy P grade material, there would be a price differe nce of 35 per cent.  Co mmerce made every effort 
to take physical characteristics and other differe nces into account when making its comparisons.  
However, it was limited by the available informat ion on the record – information that was limited 
because Argentine respondents failed to re tain their product-specific cost data. 
 45. In short, Commerce analyzed the evidence on the record before it, which was sufficiently 
specific to enable a basic comparison of Acindar' s prices to the prevailing prices in the market.  
Commerce was not calculating a margin of dumping,  nor was it obliged to.  Rather, Commerce 
engaged in an examination of Acindar's past beha viour as a basis for evaluating what Acindar would 
be likely to do in the future. 
 
Q13. The Panel notes that the USDOC's Section 129 Determination states that the USDOC 
did not use the cost data in Acindar's financia l statements because those data related to a 
product category that included products other th an the subject product.  The USDOC stated 
                                                     
 
40 US Second Written Submission, at 12. 
41 Information for the Record, app. III (Exhibit ARG-18). 
42 Argentina Opening Statement at Panel Meeting, at para. 33 (12 July 2006).  WT/DS268/RW 
 Page E-67 
 
 
that "the inclusion of costs related to the m erchandise not subject to review would distort [the 
USDOC's] analysis."   Yet the USDOC relied on these financial statements with respect to its 
determination that the OCTG market was depressed in the period of review.   (a) Please explain, by referring to the relevan t parts of the record, the relevance of the 
financial statements of Siderca and Ac indar for both the company-specific and 
order-wide phases of the USDOC's sunset de termination in these proceedings.  More 
specifically, please explain whether the USDOC used these statements in support of its 
order-wide determination that dumping was likely to continue or recur should the order be revoked and where such use is reflected on the record. 
 46. With respect to the company-specific determ ination for Acindar, Commerce found that the 
weakened condition of Acindar, as reflected in its  financial statements, s upported Commerce's finding 
that Acindar had likely dumped during the period and w ould likely continue to do so if the order were 
revoked.
43   
 
47. With respect to the order-wide determination,  Commerce used Siderca and Acindar's financial 
statements in conjunction with SEC filings from US  producers to establish that there was a depressed 
OCTG market.44  Specifically, Siderca's financial statement explained that, "[s]ales for the year were 
$486 million (25 per cent less than the $645 million in the previous year) reflecting the effects of the drastic fall in world demand for tubes in the oil industry , caused by the fall in oil prices and shrinking 
steel markets".
45  The United States notes that Siderca stated on the record of the Section 129 
proceeding that "1999/2000 was, by all accounts, a period in which the global OCTG market was 
depressed . . . ".46 
 48. In addition to Siderca's own statement on the record of the Section 129 proceeding, 
information from the financial statements of the other US producers supported a finding of a 
depressed OCTG market.  For example, Maverick  Tube Corporation's 1999 10K report explains: 
  Although drilling activity has been recovering from the recently depressed levels, no 
assurance can be given regarding the ti ming and extent of such recovery.
47 
 
49. The NS Group similarly explains that: 
  Demand for our OCTG products began to d ecline in the second half of fiscal 1998 and 
continued to decline significantly in fiscal 1999.   Significant declines in oil and natural 
gas prices lead to a decline in drilling activit y in the United States throughout most of 
1999.  This decline resulted in extensive industry-wide tubular inventories, which 
further negatively affected our OCTG business . . 
 
The market conditions described above  negatively affected our business 
during the latter half of fiscal 1998 and fiscal 1999.  Our business experience indicates that oil and natural gas prices are volatile and can have a substantial 
effect upon drilling levels and resulting demand for our energy related 
products.  Oil and gas prices and drilli ng activity began to improve in the 
fourth quarter of fiscal 1999, and have continued to improve into fiscal 2000.  However, the timing and extent of such recovery is uncertain and we expect 
                                                     
 
43 Section 129 Determination, at 10 (Exhibit ARG-16). 
44 Section 129 Determination, at 7 (Exhibit ARG-16). 
45 Siderca's Questionnaire Resp., at page 13 of Siderca's 2000 Financial Statement (emphasis added) 
(Exhibit ARG-15). 
46 Exhibit ARG-19 (p. 7). 
47 OCTG Filings of Domestic Producers, at Ma verick's 1999 10K, p. 47 (Exhibit US-19). WT/DS268/RW 
Page E-68  
 
to incur operating losses in the energy products segment during the first half of fiscal 2000.
48 
 50. These statements confirmed the weakness of the OCTG market during the period as well as the uncertainty facing the industry at the end of the period. 
 
(b) Please explain, by referring to the relevan t parts of the record, whether the financial 
statements of these two companies reflected  the overall production operations of these 
companies or whether the data relating to the subject product, i.e. OCTG, could be 
separately identified.  
 
51. The financial statements reflected the ove rall production operations of the companies.  
Because both companies produce OCTG and non-OCTG  products, the subject merchandise could be 
identified only in those parts of the financial stat ements that specifically reference OCTG production 
or sales, as opposed to non-OCTG production or sales.  For example, even though the financial 
statements did not break out sales or costs for OCTG specifically, sometimes OCTG was mentioned 
in the text.  One such example is when Siderca expl ained that "the international trade in tubes for the 
oil industry (OCTG – Oil Country Tubular Goods) was down 38 per cent."
49 
 
(c) Please explain whether the share of OCTG  in these two companies' overall production 
operations was taken into account in ma king the inference on the basis of these 
statements that the OCTG market was depressed 
 
52. Siderca's financial statement stated that th ere was a "drastic fall in world demand for the oil 
industry," which, as a matter of logic, meant there was a similar fall in the demand for OCTG.50  
Though the statements regarding Acindar's financia l condition were more gene ral, as explained above, 
Commerce referred to the SEC filings of US OCTG producers to confirm the depressed situation of 
the OCTG market.   The United States recalls that even Side rca asserted that the OCTG market was 
depressed in "1999/2000".51 
 
(d) Please explain why the USDOC made inferences regarding the state of the OCTG 
industry from Acindar's financial statements when it had found the information 
contained in those statements to be too broad for calculating a meaningful cost/price 
trend analysis. 
 
53. Financial statements contain information that  can be relevant to different aspects of a 
determination.  While the financial statements di d not contain sufficient information to calculate a 
trend analysis, they did provide one of many sour ces of support for the fact that the OCTG industry 
was depressed.  Therefore, while there were several sources in s upport of the fact that the OCTG 
industry was depressed, there were no alternate sourc es to confirm whether the overall cost/price trend 
analysis reflected the reality of Acindar's OCTG production and sales.  
Q14. 
 
(a) Please state your reaction to Argentina's proposition, in paragraph 42 of its Oral 
Submission, that past events are not susceptible to prediction and that an investigating authority can determine that either dumping o ccurred in the past or it did not or one 
does not know. 
 
                                                     
 
48 OCTG Filings of Domestic Producers, at NS Group's 1998-99 10K, pp. 7-9 (Exhibit US-19). 
49 See, e.g. , Siderca's fiscal year ending 31 March 2000, at 3. 
50 Section 129 Determination, at 9 (Exhibit ARG-16) (emphasis added). 
51 Siderca 7 December Letter, p. 7 (Exhibit ARG-19).  WT/DS268/RW 
 Page E-69 
 
 
54. Commerce did not "predict" past events, becau se a prediction is foretelling of something that 
has not yet occurred.  Instead, Commerce looked at record evidence, including Acindar's actual sales 
prices to the United States and prevailing average pri ces in the United States.  It then concluded that, 
based on the depressed OCTG market and significan t underselling, Acindar had likely dumped during 
the period.  Argentina seems to assume that infe rences cannot be drawn about the past.  However, 
Argentina does not explain why that is true.   
 55. Nothing in the text of Article 11.3 requires an investigating authority to determine that 
dumping occurred in the past or to conclude that it does not know whether dumping occurred in the past.  Argentina's position would, not surprisingly, permit companies to manipulate proceedings to 
deprive the record of certain kinds of evidence in or der to require a negative de termination.  That is 
not what Article 11.3 provides, nor is it consiste nt with the responsibility that each company bears 
when participating in an anti-dumping proceeding.  
(b) In your view, what is, if any, the difference between determining past dumping and past 
likely dumping? 
 
56. Please also refer to the answers to question 11,  above.  The meaning of "dumping" is defined 
in Article 2.1 of the Agreement, i.e., selling a product in another country at less than its normal value.  
To calculate a dumping margin, the remainder of Article 2 provides a specific  methodology to take 
into account a variety of factors.  In contrast, an Article 11.3 determination is  a prediction of what is 
likely to occur if the order is revoked.  There is no obligation to determine the existence of dumping, 
nor to calculate a margin.    57. Simply because Commerce used the term "likel y dumping" to describe its findings concerning 
the comparison of Acindar's export prices to prevailing prices in the US market does not mean that 
Commerce determined the existence of dumping, nor that the obligati ons with respect to calculation 
of a dumping margin under Article 2 apply.  Ra ther, given the nature and constraints of the 
proceeding, Commerce sought to examine each compan y's behaviour during the life of the order.  
 58. Commerce's determination that Acindar ha d likely dumped was based on Acindar's export 
sales to the United States and US average unit valu es.  Commerce had to rely upon US average unit 
values as a type of surrogate for normal value out  of necessity because there were no other reliable 
data.  59. Acindar had no viable home market, no third country sales, and did not keep its costs.  Siderca also failed to keep its product-specific co sts.  As provided in Annex II, Commerce used a 
price list as a surrogate for normal value, and that price list was Preston Pipe & Tube.   
 60. These pricing data were not the only inform ation underlying Commerce's likely past dumping 
finding as to Acindar.  In addition to making the price comparison, Commerce concluded from information gathered from Acindar's financial statem ents that Acindar was in a weakened financial 
condition, also supporting Comme rce's conclusion that Acinda r had likely dumped during the 
period.
52  
 
Q15. The Panel notes the following parts the USDOC's Section 129 Determination regarding 
the state of the OCTG industry: 
 
We note that Acindar's US sales of OCTG occurred shortly before the end of the original sunset review period. Absent ev idence that Acindar intended to cease 
selling in the United States, and ab sent evidence that prevailing market 
conditions were likely to improve in the near future , we consider such sales 
                                                      
52 Section 129 Determination, at 10 (Exhibit ARG-16). WT/DS268/RW 
Page E-70  
 
indicative of Acindar's likely future pricing behaviour were the order to be 
revoked.   (emphasis added) 
 
Given the weakened condition of Siderca at the end of the original sunset review period, we consider that there was no valid indication that a sudden turn-around 
in the OCTG market was likely .   (emphasis added) 
 
The Panel also notes Argentina's statement in pa ragraph 99 of its First Written Submission that 
"USDOC's conclusion that there is "no valid indication that a sudden turn-around in the OCTG market was likely" is demonstrably contrary  to the evidence."  In this regard, Argentina 
refers to Siderca's letter dated 7 December 2005 (Exhibit ARG-19).  That letter states:  
Also, Siderca's Financial Statement for the period ending 30 June 2000 shows 
profitability increasing and links this in crease with the recovery in the oil and 
gas sector that was already underway.   (footnote omitted) 
 
This letter in turn refers to Siderca's letter dated 30 November 2005, found in Exhibit ARG-15.  
Financial statement of Siderca as at 30 June 20 00, attached to the mentioned letter, reads in 
relevant parts: 
 
Improved crude and gas prices have been responsible for a steady recovery in 
the petroleum and steel markets. In this context, the level of business of the 
Company during the first quarter of the year recorded a significant 
improvement , based on a recovery of sales volum es and a gradual rise in prices 
on the international steel tube market.   (emphasis added) 
 
Business in the first quarter measured by sales volume totalled 185,882 tons and output reached 
195,132 tons, more than in the same period fo r the previous year, when volumes totalled 
124,921 tons and117,250 tons, respec tively. These figures are an indication of the recovery 
experienced in the sector, and exports in particular .   (emphasis added) 
  The Panel notes that financial statements of Siderca for the fiscal year ending 
31 March 2000, found in Exhibit ARG-36, reads in relevant parts:  
In the middle of the fiscal year oil prices be gan to record a significant recovers- hitting 
US$30 per barrel in March- generating an in crease in drilling and investment activity 
by oil companies .  
 
This recovery came too late to have a significant effect on the volume of sales for 
the year.  (emphasis added) 
 
The recovery in crude prices and the good  level of gas prices will influence a 
steady recovery ion the oil an d steel markets. This outl ook, seen in the context of 
the introduction of new installations a nd significant improvements in costs at 
operating level, leads to an optimistic outlook for the coming year . 
 
The international market for seamless tub es has seen a profound globalization in 
recent years.   (emphasis added) 
 
The Panel also notes that the Preston Pub lishing data contained in Exhibit ARG-18 
Attachment 3 indicates that the prices of all subject products showed an increasing trend towards the end of the period of review of the Section 129 Determination at issue, specifically 
from September 1999 through July 2000. 
  WT/DS268/RW 
 Page E-71 
 
 
(a) Please indicate the period of review in th is Section 129 sunset review.  Please explain 
which parts of that review period the above-referenced financial statements covered. 
 
61. The period of review for the Section 129  Determination covered the same period as the 
original sunset review – 1 August 1995 through 31 July 2000.53  The United States recalls that in 
response to the arbitrator's questions in the Artic le 21.3(c) proceeding, Co mmerce clarified that its 
collection of information would be limited to the original sunset review period.  Commerce relied 
upon Acindar's yearly financial statements that  covered the beginning of the period through 
June 2000, and Siderca's yearly financial statemen ts that covered from the beginning of the period 
through March 2000. 
 
(b) Did the USDOC consider the above-quoted in formation in the financial statements and 
the Preston Publishing data in its Section 12 9 Determination, in particular with regard 
to its proposition that the OCTG industry was depressed and that there was no indication of recovery in the near future? 
 
62. Commerce considered all record evidence in  its assessment of the OCTG industry and its 
determination that there was no indication of recovery  in the near future.  However, the statements 
from Siderca's financial statement relating to th e future state of the OCTG market were only 
predictions that were contradicted by statements  in the US producers' US Securities and Exchange 
Commission ("SEC") filings.  The United States notes that it did not place significant weight on 
Siderca's last quarterly statement as it represented only a quarter and was unaudited, while Commerce 
did rely on the full-year audited financial statements.
54 
 63. As an initial matter, it should be noted that while a trend toward upward prices is discernable 
beginning in September 1999 and continuing through the end of the sunset period, the trend is not 
without setbacks.  Specifically, the Preston data show that prices for five of the eight product 
categories dropped at least once during the period  September 1999 through July 2000, and some 
dropped twice.  For example, the Preston data show  the following pricing data for the year 2000: 
 
Carbon ERW Tubing: January: $762; February: $759.  
April: $788; May: $781 
Carbon Seamless Casing:  April: $684; May: $671 
Alloy ERW Tubing: February: $957; March: $948; April: $944 
Alloy Seamless Tubing: Februa ry: $1,035; March: $1,014; 
June: $1,050; July: $1,048 
Alloy Seamless Casing: April: $829; May: $822
55 
 64. These data confirm the statements found in US producers' SEC filings that repeatedly point 
toward the continuing vola tility of market prices and uncertainty f acing the industry at  the end of the 
period.  In addition to the cites above in 13(a), th e following also confirms the volatility of the OCTG 
market.  Lone Star explained that: 
 
Historically, over 60% of Lone Star's reve nues have been generated through the sale 
of oilfield products.  As a result, Lone Star's revenues are largely dependent on the 
state of the oil and gas industry, which has historically been volatile.
56  
 
                                                      
53 Questionnaire, at 1 (Exhibit ARG-13). 
54 See US Second Written Submission, at 16. 
55 Information for the Record, at app. III (Exhibit ARG-18).   
56 OCTG Filings of Domestic Producers, at Lone  Star's 1999 10K, pp. 20 (Exhibit US-19). WT/DS268/RW 
Page E-72  
 
65. Also, Maverick Tube Corporati on's 1999 10K report explains that: 
 
As our recent experience indicates, oil and gas prices are volatile and can have a substantial effect on drilling levels and resulting demand for our 
energy related products . . . 
57 
 
66. Because of price volatility, price trends alone, in this particular industry, are not necessarily 
reliable, or sufficient, to indicate true market r ecovery.  Commerce did not consider a slight increase 
in prices at the end of the period a sufficient indicator of a lasting shift in the demand for OCTG that had been depressed for the majority of the period.  Q16. The Panel notes Argentina's assertion in paragraph 30 of its Oral Statement that in the period of review of the Section 129 Sunset Determ ination at issue, the prices of the subject 
product in the United States were significantly higher than other markets.  Please elaborate by 
referring to the relevant parts of the record of the measure at issue.  
 
67. Commerce made no such finding, and Argentina has not identified the information on the record to which it was referring.  
Q17. 
 
(a) How, if at all, did the original panel address the parties' claims and arguments relating 
to the USDOC's volume analysis? Did it exercise "judicial economy"?  
 
68. According to the Appellate Body:  
The practice of judicial economy . . . allows a panel to refrain from making multiple 
findings that the same measure is inconsistent  with various provisions when a single, 
or a certain number of findings of inconsistency, would suffice to resolve the dispute.
58 
 69. In this dispute, the original Panel in its in terim report did not address the WTO-consistency of 
the volume analysis.  The United States considered  that in doing so, the original Panel exercised 
judicial economy.
59  In response to a request from Argentina to make factual and legal findings, the 
original Panel in its final report made factual findings but declined to make any legal findings.60  The 
original Panel concluded that, in view of the finding that reliance on the dumping margin was 
inconsistent with Article 11.3, there was no need  to address whether the volume analysis was also 
inconsistent with Article 11.3, and the original Panel declined to make  a legal finding in that regard.  
Argentina argued that such a finding could be n ecessary for purposes of appeal, but the original Panel 
considered that argument "hypothetical" and rejected it.61  However, the original Panel did agree to 
make factual findings to permit Argentina to appeal.62  Argentina did not appeal the original Panel's 
conclusion that it did not need to address the volume analysis, nor did Argentina appeal the original 
Panel's exercise of judicial economy. 
 
                                                      
57OCTG Filings of Domestic Producers, at Mave rick's 1999 10K, p. 47 (Exhibit US-19).  
58 Appellate Body Report, Canada – Measures Relating to Exports of Wheat and Treatment of 
Imported Grain , WT/DS276/AB/R, para. 133 (adopted 27 September 2004) (" Canada – Wheat Exports and 
Grain Imports "). 
59 US Comments on Argentina's Comments on the Interim Report, para. 3. 
60 Panel Report, para. 6.11. 
61 Panel Report, para. 6.11. 
62 Panel Report, para. 6.11.  WT/DS268/RW 
 Page E-73 
 
 
(b) What considerations should guide this Pa nel in addressing the parties' claims and 
arguments in these 21.5 DSU proceedings?  Would any prejudice arise to any party in the event the Panel did, or did not, address the volume analysis?  
 
70. The United States considers that it is important  to recall that this proceeding is a compliance 
proceeding.  The question for this Panel is to ass ess the existence or consistency with a covered 
agreement of measures taken to co mply with the recommendations and rulings of the DSB.  As the 
United States noted in its opening statement, Arge ntina disregards the recommendations and rulings 
and appears to be asking the Panel to treat this pro ceeding as if it were an original proceeding.  That 
approach is manifest in the lack of reference in  Argentina's submissions to the recommendations and 
rulings of the DSB, and Argentina's insistence that the volume analysis is within the scope of this 
Article 21.5 proceeding.  But this is not an or iginal proceeding – it is a compliance proceeding. 
 71. The redetermination in this  dispute, and the volume analysis, are analogous to the EC's 
redetermination, and the "other factors" analysis, in EC – Bed Linen (21.5) , and the considerations 
identified in that dispute are equally a pplicable here.  The Appellate Body in Bed Linen explained that 
the part of a redetermination that merely incorpor ates elements of the original determination, and 
which the responding Member did not have to change  in order to comply with the recommendations 
and rulings of the DSB, is not part of a measure taken to comply.
63  The panel in that dispute 
articulated the important differences between an original proceeding and a compliance proceeding, 
and particularly the prejudice that would inure to a responding Member if the two were confused:   
 
the defending Member would have no oppor tunity to bring its measure into 
conformity with the AD Agreement . . . .   Moreover, the defending Member would 
be subject to potential suspension of concessions as a result of a finding of violation . . . which, because it was not the subject to any finding of violation in the original 
report, the Member was entitled to assume w as consistent with its obligations under 
the relevant agreement.  Such an outcome would not seem to be consistent with the 
overall object and purpose of the DSU to achieve satisfactory resolution of disputes, effective functioning of the WTO, to main tain a proper balance between the rights 
and obligations of Members, and to ensure  that benefits accruing to any Member 
under covered agreements are not nullified or impaired.
64 
 
72. The panel went on to note:  
[T]he dispute settlement system provides Members with time to bring inconsistent measures into conformity, prefers mutually acceptable solutions, and provides for 
suspension of concessions only as a last resort.
65 
 73. These considerations apply in this instance as well.  The original Panel did not make any 
recommendation or finding regarding the volume analysis.  Therefore, the volume analysis was not part of the recommendations and rulings of the DS B, and the United States did not fail to implement 
the recommendations and rulings by not reconsideri ng the volume analysis.  If this Panel were to 
make an adverse finding now, the United States woul d have no reasonable period of time to bring its 
measure into conformity with the Anti-Dumpi ng Agreement and would be subject to potential 
suspension of concessions as a result of a finding of breach that was not in the original report.  
 
                                                     
 
63 See US First Submission, para. 34, citing EC – Bed Linen (21.5) (AB) , paras. 86-87. 
64 Panel Report, European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen 
from India – Recourse to Article 21.5 of the DSU by India, WT/DS141/RW, para. 6.40 (adopted 24 April 2003, 
as modified by the Appellate Body Report, WT/DS141/AB/RW) (" EC – Bed Linen (21.5) (Panel) "). 
65 EC – Bed Linen (21.5) (Panel) , para. 6.45. WT/DS268/RW 
Page E-74  
 
74. Argentina attempts to distinguish EC – Bed Linen (21.5) , arguing that in this dispute there 
was no finding that Argentina had failed to make a prima facie case.
66  Argentina misses the point.  
The reasoning in EC – Bed Linen (21.5) is not limited to circumstances in which a panel finds that a 
complaining party has failed to make a prima facie  case, particularly in terms of the prejudice a 
responding party would suffer.  The reasoning is app licable to circumstances in which an issue was 
litigated, but no finding of inconsistency was made.  Under those circumstances, a Member has no 
reasonable period of time to bring its measure in to compliance and faces a potential suspension of 
concessions.  As the panel in EC – Bed Linen  (21.5) noted, suspension of concessions, without the 
reasonable period of time to bring the measure into compliance, would not seem to be consistent with 
the balance of rights provided for under the DSU. 
 
75. The United States notes that had Argentina c onsidered a finding on the volume analysis to be 
"necessary" to resolve the dispute, Argentina could ha ve appealed the original Panel's conclusion that 
such a finding was not necessary, and Argentina could have li kewise appealed the original Panel's 
exercise of judicial economy as  false.67  This is particularly true because the original Panel, in 
response to a request from Argen tina, made factual findings to enable  the Appellate Body to 
"complete the analysis" regarding the volume finding had Argentina appealed.68  However, Argentina 
declined to appeal and accepted the original Pane l's conclusion – that a fi nding of inconsistency 
regarding the volume analysis was not necessary to resolve the dispute.  Having litigated the exact 
same issue in the original proceeding, and having accepted the original Panel's exercise of judicial 
economy, Argentina is now precluded from relitigati ng that issue as part of an Article 21.5 
proceeding. 
 76. Argentina appears to be aware that it is precluded from relitigating the same  issue for which 
no finding of inconsistency was made, and instead attempts to characterize the volume finding as a 
new element of the measure taken to comply, analogizing the volume analysis to Australia – 
Automotive Leather II, Australia – Salmon, and US – Softwood Lumber (CVD) (21.5) .  None of those 
disputes involves the factual posture here, which is the absence  of a finding of WTO-inconsistency 
with respect to the issue in question in the orig inal proceeding.  The United States does not dispute 
that the new analysis undertaken in the Section 129 de termination is within the scope of the 
Article 21.5 proceeding.  The United States has not ar gued, for example, that Commerce's analysis of 
Acindar's likely dumping is not part of the measure taken to comply, because that issue was not 
litigated in the original proceeding, nor could it have been. 
 77. In response to the Panel's specific reference to US – Softwood Lumber IV (21.5), the reasoning 
in that report is not applicable to the facts of this dispute.  The United States recalls that in Softwood 
Lumber , the recommendations and rulings of the DSB pertained to the "pass through" analysis 
conducted in the countervailing duty investigation.
69  The question for the panel, and the Appellate 
Body, was whether the pass through analysis in an administrative review  – an entirely separate 
measure – was within the scope of the Article 21.5 proceeding.70  There was no question but that the 
recommendations and rulings pertained to the pass through analysis; the question was whether that 
analysis, as found in an additional measure, fell with in the scope of Article 21.5.  By contrast, the 
volume analysis in this dispute was not part of the recommendations and rulings of the DSB. 
                                                      
66 Argentina Opening Statement at Panel Meeting, para. 70. 
67 See Appellate Body Report, European Communities – Export Subsidies on Sugar, WT/DS265/AB/R, 
WT/DS266/AB/R, WT/DS283/AB/R, para. 335 (adopted 19 May 2005) ("In this case, the Panel's findings . . . 
were not sufficient to 'fully resolve' the dispute. . . .  This constitutes false judicial economy and legal error.") 
("EC – Sugar (AB) "). 
68 Panel Report, para. 6.11. 
69 Appellate Body Report, United States - Final Countervailing Duty Determination with Respect to 
Certain Softwood Lumber from Canada: Recourse to Article 21.5 of the DSU by Canada , WT/DS257/AB/RW, 
para. 50 (adopted 20 December 2005) (" US – Softwood Lumber (CVD) (21.5) (AB) "). 
70 US – Softwood Lumber (CVD) (21.5) (AB) , para. 54.  WT/DS268/RW 
 Page E-75 
 
 
 
(c) Is the USDOC's volume analysis part of the measure taken to comply with the DSB 
recommendations and rulings for the purposes of Article 21.5 DSU?  Why or why not?  
Would it have been possible for the orig inal panel to address the USDOC's volume 
analysis? 
 
78. USDOC's volume analysis is analogous to the EC's "other factors" analysis in EC – Bed Linen 
(21.5).  Both analyses were part of the original determin ation and were simply reincorporated into the 
redetermination.  (Indeed, the EC had revised its ot her factors analysis to take into account different 
data on domestic industry sales,71 whereas Commerce made no changes to its volume analysis but 
rather incorporated it by reference.)  The United Stat es was not obligated to reconsider that analysis to 
implement the recommendations and rulings of the DSB.  Therefore, as in EC – Bed Linen  (21.5) ,  the 
volume analysis is "part of the redetermination th at merely incorporates elements of the original 
determination" and is "an aspect of the original measure",72 rather than part of the measure taken to 
comply. 
 
 Please indicate the relevance, if any, of th e Appellate Body Reports in EC - Bed Linen 
(Article 21.5 - India ) and US - Softwood Lumber  IV (Article 21.5 - Canada) in your responses 
to the above questions.  
 
UNITED STATES 
 
Q18. The Panel notes Argentina's argument that the USDOC disregarded the comments 
made by the Argentine exporters with regard to th e decline in the volume of imports.  The Panel 
also notes the US' argument that these comments  were not germane to the issue.  Siderca's 
response to the questionnaire to which Argentina refers in this regard, reads in relevant part: 
 
Whatever the significance of a decline in export volume may be as a general 
matter, Siderca knows that, with respect to Siderca, it does not mean that the 
product could not be shipped without dumping.  The cost data (even with the limitations explained above) supports Siderca's position: Siderca is a cost-efficient producer of OCTG and could have shipped OCTG products 
profitably to the United States.  
(a) Please explain why the USDOC found these comm ents not to be germane to the issue of 
the decline in the volume of imports? 
 
79. The United States has not contended that Siderca's comments regarding likely past dumping 
were not germane to the volume analysis .  Rather, the United States has noted that Siderca's 
comments explaining the decline in import volumes were not germane to the US implementation of 
the recommendations and rulings of the DSB, which pertained to Commerce's reliance on the 
dumping margin from the original investigation, and not to Commerce's volume analysis.
73 
 80. The United States notes that the comments identified in the question were based on Siderca's 
cost data.  Far from ignoring Siderca's assertions about its cost data, Commerce in fact addressed the 
reliability of the cost data at length in the Secti on 129 determination and ultim ately declined to make 
any finding as to whether Siderca had likely dumped, in part based on the lack of US sales during the 
sunset period of review.
74 
 
                                                      
71 EC – Bed Linen (21.5) (Panel) , n. 75. 
72 EC – Bed Linen (21.5) (AB) , paras. 86-87. 
73 See US Second Submission, para. 33.  
74 Section 129 Determination, at 9 (Exhibit ARG-16). WT/DS268/RW 
Page E-76  
 
81. The United States also notes that Siderca's comments were not responsive to the question 
asked.  The question was not whether there had been a decline in imports resulting from the 
imposition of the order; rather, the question w as a request for raw data concerning shipments during 
the sunset period of review alone .  That information formed part of  the basis for Commerce's decision 
not to make any finding regarding Siderca.  Nota bly, in the Section 129 proceeding, Commerce did 
not ask for shipment data from any period prior  to the sunset period of review, and the question 
afforded no basis for Siderca's disc ussion of declining import volumes.
75  Siderca's comments 
addressed a question that was not releva nt to the Section 129 proceeding. 
 
Q20. The Panel notes Argentina's allegation th at by failing to respond to Siderca's letter 
dated 7 December 2005, the USDOC acted incons istently with Articles 6.1 and 6.2.   
 (c) How did the USDOC consider the views expressed in this letter?  
82. Articles 6.1 and 6.2 pertain to an interested party's right to present evidence.  Nothing in 
Articles 6.1 or 6.2 requires a Member to "res pond" to each submission of any such evidence.
76 
 83. In reaching its final determination Comme rce considered all comments submitted by the 
interested parties.  Pages four through five of  the Section 129 Determination provide a summary of 
Siderca's comments from its 7 December letter, which were offered in rebuttal to a letter from counsel 
for petitioners.  Commerce took these into consideration in its analysis.  For example, in response to 
Siderca's comment that Commerce use Preston Pi pe and Tube data on an "all OCTG" level, 
Commerce found that it would be "even less specific and overly broad."
77  In addition, as noted above, 
counsel for petitioners had proposed using aver age unit values based on the Argentine export 
classification system, an approach Siderca opposed in  its 7 December letter.  Commerce did not use 
the approach suggested by petitioners' counsel. 
 
Q21. The Panel notes Argentina's argument that the USDOC failed to make six memoranda 
available to the Argentine exporters. 
 
(b) Please explain whether it was "practicable" within the meaning of Article 6.4 of the 
Agreement for the USDOC to make the se memoranda available to the Argentine 
exporters in these Section 129 proceedings. 
 
84. Notwithstanding the limited time available, Commerce made available to all parties 
participating in the proceeding all the informati on submitted to or obtained by it in the Section 129 
proceeding to the extent "practicable", as required by Article 6.4.  First, Commerce placed the Preston 
Pipe and Tube data and Acindar-s pecific importer data regarding Ac indar's sales on the record on 
22 November 2005 – before Argentine r espondents' questionnaires were even due.78   
 85. Second, the 16 December 2005, memorandum regarding "Information for the Record", 
consisted of respondent a nd domestic interested parties' submissi ons in the original sunset review.
79  
Argentina has had access to the public file containing the same information since the original  sunset 
review.    
 
                                                      
75 By contrast, Commerce asks for data on pre- and post-order volumes in its standard sunset review 
questionnaire. 
76 See US Second Written Submission, para. 57. 
77 Compare Siderca's Response to US Steel's Comments, at 5-6 (Exhibit ARG-19), with Section 129 
Determination, at 8-9 (Exhibit ARG-16). 
78 This discussion only concerns the public versions  of the memoranda as Article 6.4 only relates to 
public information.  See Exhibit ARG-18. 
79 Exhibit ARG-25.  WT/DS268/RW 
 Page E-77 
 
 
86. Third, Commerce's memoranda regarding the in consistencies in Siderca's and Acindar's data 
were part of the reasoning used in making the determination.  Assuming arguendo  that such reasoning 
is even contemplated by Article 6.4, Commerce disclosed the reasoning as soon as practicable.  
Commerce received Siderca's rebuttal of IPSCO's arguments on the cost data as on 14 December 2005.  The memoranda on the deficiencies in the cost data were released just two days 
later, on 16 December 2005. 
 87. A more detailed discussion of whether it wa s "practicable" to make certain memoranda 
available earlier is provided in the US  first and second written submissions.
80 
 Q24. Please explain whether the APO system und er the US law also allows interested parties 
themselves, in addition to counsel for such partie s, to see all confidential information submitted 
by other parties in a sunset review.  
 
88. Interested parties themselves are not allo wed access to business proprietary information 
submitted under the APO.  Instead, their independe nt representative can r eceive access to that 
information.  This ensures the protection of inter ested parties' confidential information, pursuant to 
Article 6.5 of the Agreement.  
Q26. 
 
(a) The Panel's understanding of the method used by the USDOC with regard to product 
groupings the USDOC made for purposes of e xamining the reliability of Siderca's cost 
data is that the USDOC took the weighted av erage costs of, for example, carbon casing 
PE and carbon casing T&C, and compared that  with the weighted average cost of alloy 
casing PE and alloy casing T&C.  In other words, the USDOC took as the starting point 
of its product grouping for comparison the material used without taking into account 
the finishing. 
 
 Is this a correct characterization of the USDOC's methodology? Please explain by 
referring to the relevant parts of the record.  
 89. It is a correct characterization of part of Commerce's methodology for assessing the reliability 
of Siderca's submitted cost data.
81  This was only one of the items Commerce considered when 
assessing the reliability of data resulting from Siderca' s cost extrapolation.  Commerce looked at the 
data on a more specific basis as well.  
90. Commerce considered the fact that the non- OCTG costs were significantly higher than for 
OCTG products.
82  This was an unexpected result because Siderca had been a large producer of 
standard line pipe – a lower value-added product – and thus these non-OCTG costs should have been 
lower.  Commerce also found that Siderca had reporte d lower costs for [BCI].  That is a result that 
should not occur.83  The cost of producing an alloy is significan t.  In addition to the expensive costs of 
the alloying elements, working with an alloyed steel is more difficult – driving up the costs of 
production.  The Preston Pipe and Tube data dem onstrates the typical price differential between 
carbon and alloy.  For example, in March 1998, car bon seamless casing was pri ced at $725/ton, while 
alloy seamless casing was priced at $917/ton – a difference of $192/ton .  Regardless of whether the 
                                                      
80 US First Written Submission, para. 67; and US Second Written Submission, paras. 62-69. 
81 Section 129 Determination, at 8; and Inconsistencies in Siderca's Data, at 1 (Exhibit ARG-21).  The 
entire Siderca memorandum is attached as an exhibit because Argentina only provided a portion of it in Exhibit ARG-37.  
82 Inconsistencies in Siderca's Data, at 2-7 (Exhibit ARG-21). 
83 Inconsistencies in Siderca's Data, at 6 (Exhibit ARG-21).  The costs for [BCI]. WT/DS268/RW 
Page E-78  
 
data is reviewed on a broader level or a more speci fic level, the costs did not reflect the reality of 
OCTG production.  91. With regard to Siderca's data, even when the costs for [BCI] did not reflect the reality of the 
cost of production for OCTG.  For example, Siderc a reported that for the year ending March 1998, it 
only cost a little over [BCI].  
 
(d) The Panel notes the US' argument that the USDOC made this product grouping in 
accordance with the public information available.    The Panel also notes that the memo 
to which the United States refers in this regard, found in Exhibit ARG-18, contains a 
product grouping by Preston Publishing. 
 
 Please demonstrate, by referring to the rel evant parts of this memo, how exactly the 
Preston product grouping  formed the basis of the USDOC's grouping. 
 
92. The Preston Publishing data are found in the form of a chart in appendix III of Commerce's 
22 November 2005 memorandum to the file.
84  The chart indicates a sales price for each month of the 
sunset review period for ten product categories.  Those product categories are:  
· CARBON ERW TUBING; 
· CARBON SMLS, TUBING; 
· CARBON ERW CASING; 
· CARBON SMLS,CASING; 
· CARBON DRILL PIPE; 
· ALLOY ERW TUBING; 
· ALLOY SMLS,TUBING; 
· ALLOY ERW CASING; 
· ALLOY SMLS, CASING; 
· ALLOY DRILL PIPE. 
 93. The characteristics that constitute th ese product categories were the only physical 
characteristics available to Commerce.  The cat egories break down the price differences between 
carbon and alloy; seamless (SMLS) and welded (ERW); and tubing, casing, and drill pipe.
85  
Commerce then compared each Acindar sale with the Preston Pipe and Tube price for that month and 
within the appropriate category.  Thus, the comparison was both cont emporaneous and product-
specific.   Siderca filed comments with Commerce concer ning the Preston data arguing, for example, 
that Commerce should compare the Preston Pipe data on an aggregate basis with Siderca's cost data.86 
 (e) Please explain whether the USDOC informed Siderca of the methodology that it was 
considering to use for the grouping of products. 
 
94. Commerce informed Siderca of the product cate gories it was considering in an attachment to 
its 31 October 2005 questionnaire to Siderca.
87  The list of categories were based on carbon/alloy, and 
plain-end (PE)/threaded and coupled (T&C).  Because Siderca produces only seamless OCTG, and 
Acindar produces only welded OCTG, the category of  seamless/welded was also implicitly included 
in the product grouping.  However, because Commerc e later found that the Preston data did not create 
discrete categories for plain-end and threaded and coupled, Commerce had to modify those categories 
when it conducted its analysis.  
 
                                                      
84 See Exhibit ARG-18. 
85 Drill pipe was not used in Commerce's analysis because it was previously revoked from the order. 
86 Siderca's 7 December Letter, at 5-6 (Exhibit ARG-19). 
87 Questionnaire, at att. 1 (Exhibit ARG-13).  WT/DS268/RW 
 Page E-79 
 
 
95. Siderca was aware of the broader product gr ouping of the Preston Pipe and Tube data on 
22 November 2005, when Commerce placed the data on the record.  This was prior to Siderca's 
submission of its questionnaire response and all of its comments.  
 
(f) Please explain why the USDOC did not use the methodology proposed by Argentina. 
 
96. First, the methodology proposed by Argentin a before this Panel was not proposed to 
Commerce during the Section 129 proceeding.   Indeed, Argentina's proposal is the opposite  of what 
Siderca argued before Commerce during the proceedi ng.  Argentina currently argues that Commerce 
should have made the comparison between ca rbon and alloy PE, and carbon and alloy T&C.88  
However, during the underlying proceeding Siderca argued against making such a comparison.  
Specifically, Siderca claimed that "the ten prod uct categories identified in the Department's 
questionnaire are so broad they make any conclusion s drawn from the data highly doubtful, . ..."  In 
rebutting petitioners' counsel's proposed approach, Siderca then argued that Commerce make the 
comparison on a product-category level (i.e. , all OCTG).89 
 
97. Nevertheless, Commerce did revi ew all of Siderca's data on the specific level that they were 
reported – including finishing, casing/ tubing, and carbon/alloy.  As e xplained in (a) above, Siderca's 
extrapolated costs failed to refl ect the reality of OCTG production co sts whether they were viewed on 
a specific level or an aggregate level.  Q27. Please explain for what purpose the USDO C requested the cost information from the 
Argentine exporters in these proceedings.  Mo re specifically, please explain whether the 
USDOC intended to use that information exclusiv ely for its company-specific determinations or 
for its order-wide determination as well. 
 98. Commerce sent all Argentine producers questionna ires in order to elicit sufficient information 
to make an order-wide determina tion of likelihood.  While Commerce is not required to make a 
company-specific determination in the absence  of a waiver, Commerce does examine individual 
company behaviour in order to ascertain whether dumpi ng is likely to continue or recur if the order is 
revoked.  Commerce requested the cost data to assi st it in evaluating the companies' behaviour over 
the life of the order. 
 
Q28. Please explain whether the USDOC init ially intended to make a company-specific 
determination for Siderca as it did for Acindar, citing any evidence on record.  In other words, 
would the USDOC have made a company-speci fic determination for Siderca had that 
company's cost data been found to be reliable? 
 99. Commerce requested a variety of information from respondent interested parties.  Commerce 
does not necessarily make company-specific dete rminations; rather, Commerce evaluates the 
behaviour of respondent interested parties over the life of the order.  Commerce requested the 
information with a view to evaluating Sider ca's behaviour.  However, as the Section 129 
determination notes, the combination of  the deficiencies in the cost data and Siderca's lack of 
shipments during the period of review  led Commerce to make no specific finding with regard to 
Siderca.
90  Had Siderca's cost information been reliabl e, it would remain true that Siderca had no 
shipments during the sunset period of review.  Co mmerce would have weighed those facts together 
before deciding whether to make any pa rticular finding regarding Siderca. 
 
Q29. The Panel notes that the USDOC's Section 129 Determination reads in relevant 
parts: 
                                                      
88 Argentina's Opening Statement, at para. 57. 
89 Siderca's Response to US Steel's Comments, at 5-6 (Exhibit ARG-19). 
90 Section 129 Determination, p. 7 (Exhibit ARG-19). WT/DS268/RW 
Page E-80  
 
 
 We disagree with Siderca's assertion that the company financial statements of 
Siderca and Acindar are not relevant fo r our likelihood analysis. Financial 
statements provide a good understanding of the status of the entire company, and reflect the company's overall selling prac tices. Taken together, these data are 
relevant indicators of likely future pricing trends.  
 (a) Would the United States agree that the USDOC's Section 129 Determination 
demonstrates that some information pertai ning to Siderca, namely this company's 
financial statements, were used by the US DOC in the context of its order-wide 
determination? 
 
100. The United States recalls that the purpose of a sunset review is to ascertain whether dumping 
and injury are likely to continue or recur if the order is revoked.  There can be many aspects to such a determination, including aspects particular to comp anies – what their likely behaviour may be – and 
more general elements pertaining to the industry as a whole – is it depressed or is it faring well.  
Consideration of all aspects results in the ultimate determination.    101. In this regard, the United States would note that a company's financial statements are not 
exclusively information "pertaining to" that comp any.  Rather, as here, a financial statement can 
provide evidence as to the condition of the industry as a whole .  There were multiple sources of 
information on the record concerning the condition of  the OCTG industry, including the SEC filings 
of domestic producers (and an assertion by Siderca itself on the record of the Section 129 proceeding).  These sources of information, taken together, along with other facts on the record, led to Commerce's 
ultimate conclusion that dumping w as likely to continue or recu r if the order were revoked.  
 
102. Finally, the United States notes that the p assages quoted in the question reflect a general 
discussion of the potential relevance of a company's financial statements.  Commerce disagreed with Siderca's suggestion that the companies' financial statements were not relevant in making the  
likelihood determination.  In that context, Comme rce concluded that Siderc a's financial statement 
provided information about the OCTG market generally , but Commerce did not use the financial 
statement to make any company-specific finding about Siderca.  
 
(b) Were Siderca's financial statements used as facts available or as Siderca's response to 
the USDOC's questionnaire? 
 
 Please elaborate.  
 
103. Siderca's financial statements were used  as Siderca's response to the questionnaire. 
 104. The United States notes that Article 6.8 provid es that in "cases in whic h any interested party 
refuses access to, or otherwise does not provide, necessary information . . . determinations may be made on the basis of the facts available."  Siderca provided the financial statement.  Therefore, with 
respect to the financial statement, Article 6.8 is si mply not applicable.  Siderca did not "refuse access 
to" or "otherwise not provide" the information in question; to the contrary, Siderca provided it.  
Q30. Please explain in detail whether, in your view, paragraph 3 of Annex II justified the 
rejection of Siderca's cost data.  In particul ar, please explain whether the cost information 
submitted by Siderca was verifiable within the meaning of paragraph 3.  Did the USDOC take 
any steps to verify such information?  
 
105. As the United States noted in its submissions, Article 6.8 is applicable  only if facts available 
are used.  The United States did not make a finding with respect to Siderca, and therefore Annex II is 
not applicable.  The United States made that point in  its first submission, and again in its second, and  WT/DS268/RW 
 Page E-81 
 
 
Argentina has not rebutted the argument.  The Unit ed States would note further that the question 
appears to presume that Siderca's cost informati on was "rejected" within the meaning of paragraph 3 
of Annex II.  However, Commerce made its order- wide likelihood determination on the basis of its 
company-specific finding regarding Acindar as we ll as evidence about the condition of the OCTG 
industry, and a company-specific finding concerning Siderca was ultimately not necessary.  
Therefore, Siderca's cost information was not "necessary" within the meaning of Article 6.8, and 
Commerce's decision not to use the cost data was not  a "rejection" of that information within the 
meaning of paragraph 3 of Annex II.  Rather, Co mmerce weighed all the information on the record, 
and accorded greater weight to other information on the record. 
 
106. In any event, the information was, by Siderca' s own characterization, not verifiable within the 
meaning of paragraph 3 of Annex II.  Siderca stated  that it did not maintain its product-specific cost 
data and that the data provided were extrapolat ed based on 2005 data.  The problem with Siderca's 
data is not that it could not be verified – Co mmerce did not contend that Siderca applied its 
methodology incorrectly; however, Commerce did consider that the methodology itself was flawed, 
resulting in costs that did not reflect the reality  of OCTG production.  While Commerce could have 
verified the 2005 data, verification would not have changed the end r esult:  Siderca's extrapolation did 
not accurately reflect costs from 1995 to 2000.  
Q31. The Panel notes the following part of  the USDOC's Section 129 Determination: 
 
 Although Siderca attempted to coopera te with the Department's request for 
information, upon analysis of Siderca's calculations, we have identified significant problems with its allocation of costs, with respect to both OCTG production and 
all tubular production.  
 
(a) Please explain your views about the relevance of this determination to the issue of whether or not Siderca acted to the best of its ability in submitting its cost information to the USDOC within the meaning of paragraph 5 of Annex II to the Agreement.  (b) Please explain how ideal the cost inform ation submitted by Siderca was within the 
meaning of paragraph 5 of Annex II to the Agreement. 
 107. The following answers both (a) and (b): 
 
108. As noted above, Annex II is  not relevant to Commerce's Section 129 Determination because 
Commerce did not use "facts available" with resp ect to Siderca – it made no determination with 
respect to Siderca.   As a result, the issue of whether Siderca acted to the best of its ability was not 
implicated.    109. The United States further notes even when an in terested party has acted  to the best of its 
ability in submitting certain information, this does not mean that the investigating authority is obliged 
to use the information.
91  In the case at hand, Siderca's submitted cost information was estimated cost 
information based on data from October 2005, while  the period considered was 1995 through 2000. 
 110. The cost information Siderca provided was far from ideal.  For example, the contention that alloy costs were lower  than carbon costs did not make sense.  Furthermore, Siderca elected to 
extrapolate data based on October 2005 data – the mo st recent period available (the questionnaire was 
issued 31 October 2005, and responses were due 30 November 2005).  However, as Argentina noted 
at the meeting of the Parties, Siderca maintains its  data for 18 months.  Thus, the use of information 
                                                     
 
91 Panel Report, United States – Anti-Dumping and Countervailing Measures on Steel Plate from India , 
WT/DS206/R and Corr.1, para. 7.64 (adopted 29 July 2002). WT/DS268/RW 
Page E-82  
 
the most  removed from the sunset period of review furt her rendered that information even less than 
ideal.  
Q32. 
(a) In your view, was the USDOC under an obligatio n to inform Siderca of the fact that its 
cost information would not be used as we ll as to give Siderca a chance to make 
comments as to why the information had to be used by the USDOC pursuant to 
paragraph 6 of Annex II?  If so, was the US DOC under an obligation to do it prior to 
the issuance of its Section 129 Determination? 
 
(b) Did the USDOC actually inform Siderca of this fact and give Siderca a chance to make 
comments? If so, when?  Did Siderca know that  its cost data were not going to be used 
by the USDOC in its determinations?  
 
111. The following answers both (a) and (b): 
 
112. As detailed in its submissions, Commerce di d not make a finding regarding Siderca, and 
therefore Commerce did not make a finding regardin g Siderca on the basis of "facts available".  
Therefore, Annex II is not applicable.  For that  reason, Commerce was not under an obligation to 
inform Siderca that its information was not being used, or to provide an opportunity to provide further explanations. 
  WT/DS268/RW 
 Page E-83 
 
 
  ANNEX E-3 
 
COMMENTS OF ARGENTI NA ON THE UNITED STATES' 
WRITTEN ANSWERS TO QUES TIONS FROM THE PANEL 
TO THE PARTIES 
 
  Argentina's Comments on US Answers to Questions 1-8
 
 
1. Argentina provides comments on the two points raised by the United States that underpin all 
of the US answers to the Panel's questions on th e waiver provisions.  The US arguments display a 
fundamental misunderstanding of the WTO viol ation which the United States was supposed to 
address in implementing the rulings and recommenda tions of the DSB.  Consequently, it is not 
surprising that the US arguments are misguided,  unsubstantiated, or i rrelevant, and that the 
US measure taken to comply regarding the waiver pr ovisions has failed to bring the United States into 
compliance with US WTO obligations.  2. First, the United States argues that it has elim inated the so called "deemed waiver" regulation, 
and that the phrase in Section 751(c)(4)(A) of the Tariff Act referring to a respondent interested party's discretion to "elect not to participate" in a USDOC sunset review only refers to the affirmative 
action of filing an explicit statement of waiver by a company along with an admission that it would 
likely dump in the future.
1  This position is inconsistent with the plain language of the statute, its 
purpose, and the meaning that USDOC previously attached to the provis ion, as evidenced by 
USDOC's former "deemed waiver" regulation itself.  
3. Second, on the broader question of the WTO-cons istency of the continued operation in certain 
circumstances of the statutory-mandate of Section 751(c)(4)(B) of the Tariff Act, the United States 
argues that because the USDOC conducts the review  on an order-wide basis, it can consider other 
evidence and, therefore, it is of no consequence that the statute continues to mandate a company-
specific finding in certain instances.
2  This argument must be rejected as it fails to recognize the basic 
problem with the waiver provision that was iden tified by the Appellate Body, which already has 
determined that a statutorily-mandated company- specific affirmative determination will necessarily 
taint any country-wide determination.3 
 4. Argentina's comments are elaborated below.  
Meaning and Effect of "May Elect Not to Participate" in Section 751(c)(4)(A) 
 
5. The United States argues that "electing not  to participate within the meaning of 
subparagraph (A) does constitute a waiver within the meaning of subsection (B)."
4  The United States 
then explains that subsection (B) of the statute is  now, in the wake of the revision of the waiver 
regulation, triggered only by an affirmative act of pa rticipation – the filing of statement of waiver and 
the submission of a statement by the waiving company that it would be likely to dump.  The US position should be rejected by the Panel for several reasons.  
                                                     
 
1 See US Answers to Panel Questions, 24 July 2006, paras. 2-12, 14-19, 21-27. 
2 See US Answers to Panel Questions, 24 July 2006, paras. 13-15, 19-20. 
3 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , paras. 234-235. 
4 US Answers to Panel Questions, 24 July 2006, para. 16. WT/DS268/RW 
Page E-84  
 
  6. First, United States offers no textual support from the statute.  The US argument that 
purportedly interprets Section 751(c)(4)(A) to only
 refer to parties that file an affirmative statement of 
waiver and an admission that they would be likely to dump is a new argument and it is inconsistent 
with the positions taken by the United States in th e underlying proceedings.  The United States cites 
no authority for the proposition that the verb "elect" in a US statute requires an affirmative statement 
of waiver.  The Panel should be highly suspicious  of this unsupported statement and assertion.  If the 
United States wants this Panel to accept this new explanation of its law, the United States needs to 
provide evidence in support of its assertion.  7. In fact, the very existence of the "deemed wa iver" regulation , 351.218(d)(2)(iii), which  has 
since been eliminated by the United States, constitu tes proof of the plain meaning of the phrase "may 
elect not to participate" in Section 751(c)(4)(A) of th e Tariff Act.  Indeed, the only statutory authority 
that the USDOC could have relied on to  issue the "deemed waiver" regulation is 
Section 751(c)(4)(A).  This is because Section 751( c)(4)(B) addresses only the effect or consequence 
of a "waiver" i.e., circumstances where a party "e lect[s] not participate," as the United States has 
admitted in its response to this question:  "el ecting not to participate within the meaning of 
subparagraph (A) does constitute a waiver w ithin the meaning of subparagraph (B)." 
 8. Citing to certain language of the SAA, however, the United States offers for the first time in 
the history of this proceeding th e argument that Section 751(c)(4 )(A) contemplates only an explicit 
statement of waiver.  This is nothing more than a post-hoc rationalization, and should be recognized 
as such.  Significantly, before this Panel during the original panel proceeding, and before the 
Appellate Body, the United States did not draw any di stinction between the consequences that a party 
would face if that party became subject to Secti on 751(c)(4)(B) – whether by virtue of an explicit 
waiver or by virtue of that party's failure to pr ovide a complete substantive response to a notice of 
initiation.  For example, the US position was clearly stated in the US Appellant Submission to the 
Appellate Body: 
 
Should a respondent interested party explicitly choose to waive participation in Commerce's sunset review proceeding or s hould a respondent waive participation by 
failing to submit a complete substantive response, then pursuant to section 751(c)(4)(B), Commerce concludes that revoca tion of the order would be likely to 
lead to continuation or recurrence of dumping f or that respondent.   [citing 19 USC. 
§ 1675(c)(4)(B)]  The United States also explained that this company-specific finding does not determine, in and of itself, the final outcome of a sunset review.
5 
9. This passage is illustrative of the US pos ition throughout the underlying proceedings, in 
which it never distinguished between  "deemed waivers" and "affirma tive waivers" for purposes of the 
application of Section 751(c)(4)(B).  This is beca use the United States clearly believed that whether a 
respondent filed an affirmative waiv er or failed to file a complete  substantive response that that 
respondent party was in the class defined by Secti on 751(c)(4)(A) – those parties that "elect not to 
participate" in a USDOC sunset review.  10. The approach of the USDOC in interpreting the statutory phrase in this manner is further 
demonstrated by USDOC's application of Section 751(c)(4)(A) in sunset reviews.  An example is 
USDOC's sunset review of the antidumping duty order on Brake Rotors from the People's Republic of 
China .  In this review, no respondent interested parti es participated in the proceeding and none filed 
                                                     
 
5 United States – Sunset Reviews of Antidumping Measures on Oil Country Tubular Goods , DS268, 
AB-2004-4, US Appellant's Submission, 13 September 2004, para. 41 (emphasis in the original).  WT/DS268/RW 
 Page E-85 
 
 
  an affirmative statement of waiver.6  Citing only the statute, USDOC then proceeded to find that the 
respondents had waived participation in the re view, even though the respondents did not file 
affirmative statements of waiver:  
[S]ection 751(c)(4)(B) of the Act provides th at the Department shall determine that 
revocation of the order would be likely to lead to continuation or recurrence of 
dumping where a respondent interested party waives its participation in the sunset 
review.  In this review, the Department did not receive a substantive response from any respondent interested party. 
 
. . . . 
 
Given that dumping margins continued to exist after the issuance of the order, 
respondent interested parties waived participation in the sunset review , and absent 
argument and evidence to the contrary, we  find that revocation of the antidumping 
order on brake rotors from the PRC would be  likely to lead to the continuation or 
recurrence of dumping.
7 
 11. In other words, contrary to the position the United States now takes before the Panel, USDOC 
interpreted the statutory language – "may elect not to participate in a review" – in the conduct of 
sunset reviews to apply to respondents that did not file affirmative statements of waiver and that 
instead simply remained silent.  That statutory language remains unchanged today. 
 12. The United States cites the language in the S AA to supports its new position.  But, notably, 
the same language in the SAA was used previous ly by the Commerce Department as its support for 
the "deemed waiver" provisions of the regulations.  In other words, USDOC's consistent position has 
been that through this same language in the SAA,  Congress and the Administration intended to allow 
USDOC to interpret silence from an exporter to tr igger the provisions of the statute regarding the 
"election" not to participate.  The United States cannot credibly argue now that this same passage – 
with no change to the statute and no further indica tion of Congressional intent – supports the view that 
the statutory term "elect" requires an affirmative statement of waiver and an admission of likely dumping by the foreign exporter.  The US position is simply not serious. 
 
13. Finally, it should be noted that the United States has offered no rebuttal to the fact that under US law, the terms of a statute will be controlling in the event of a conflict with an inconsistent 
implementing regulation.  As Argentina has argued,  under US law, a US statute will prevail over a 
US regulation where the two measures are inconsistent.
8  In addition, although an agency such as the 
USDOC may promulgate regulations pursuant to au thority granted by Congress, that agency cannot 
through the promulgation of a regulation confer on itself any greater authority than that conferred under the governing statute.
9  Accordingly, where the statute mandates a specific action (e.g., making 
an affirmative company-specific likelihood determ ination), the statute cannot be overridden by 
USDOC's modification of an implementing regulatio n.  Consequently, notwithstanding an expression 
of how USDOC would implement the waiver provis ions or regulatory text to the contrary, the 
operation of the statute nonetheless continues to op erate in a manner inconsistent with US WTO 
obligations.  Section 751(c)(4)(B) directs a compan y-specific finding of likelihood for any respondent 
                                                      
6 Brake Rotors from the People's Republic of China , 67 Fed. Reg. 45458, 45459 (9 July 2002) (attached 
as Exhibit ARG-38)  USDOC noted th at it "did not receive a substan tive response from any respondent 
interested party in the proceeding[,]" and did not reference any affirmative statements of waiver.  Id. 
7 Brake Rotors from the People's Republic of China; Final Results Issues and Decision Memorandum  
at 6-7 (ARG-38). 
8 See Argentina's Second Submission , para. 164 and note 161. 
9 See Argentina's Second Submission , para. 164 and note 162. WT/DS268/RW 
Page E-86  
 
  interested party that "elect[s] not to participat e" in the USDOC sunset review, and is therefore 
inconsistent with Article 11.3 of the Anti-Dumping Agreement. 
 
Operation of Section 751(c)(4)(B) and Tainting of Order-Wide Determination 
 14. It is undisputed that, once the waiver provision of the statute is triggered, the USDOC must 
make a company-specific determination that the waiv ing respondent is likely to dump.  The responses 
from the United States do not disagree with this assertion.
10 
 15. Also, the Appellate Body already has dete rmined that a company-specific affirmative 
determination taints the count ry-wide determination.  The Appellate Body found that 
Section 751(c)(4)(B) and its implementing regulation we re inconsistent, as such, with US obligations 
under Article 11.3 of the Anti-Dumping Agreement:  
Because the waiver provisions require the USDOC to arrive at affirmative company-
specific determinations without rega rd to any evidence on record, these 
determinations are merely assumptions made  by the agency, rather than findings 
supported by evidence…. [E]ven assuming that the USDOC takes into account the 
totality of record evidence in making its orde r-wide determination, it is clear that, as a 
result of the operation of the waiver provisions, certain order-wide likelihood 
determinations made by the USDOC will be based, at least in part, on statutorily-
mandated assumptions about a company's lik elihood of dumping. In our view, this 
result is inconsistent with the obliga tion of an investigating authority under 
Article 11.3 to "arrive at a reasoned conclu sion" on the basis of "positive evidence". 
 
Therefore, we uphold the Panel's findings...tha t Section 751(c)(4)(B) of the Tariff Act 
of 1930 and Section 351.218(d )(2)(iii) of the USDOC Regulations are inconsistent, as 
such, with Article 11.3 of the Anti-Dumping Agreement.
11 
 16. In fact, the passage above is the Appellate Bo dy's rejection of the same arguments that the 
United States recycles for this Panel.  As is ev ident from the above, the US position that a country-
wide determination is made on the basis of the totality of the circumstances and all the evidence 
gathered already has been considered and rejected  by the Appellate Body.  The Appellate Body was 
not persuaded that this explanation removes the ill egal tainting of the country-wide determination.  
This Panel need not revisit that conclusion nor accept the United States' second attempt to avoid the 
consequences of the statutorily mandated findings.  
Argentina's Comments on US Answer to Questions 10(a), (b)
 
 17. In Questions 10(a) and (b) the Panel asks th e United States specifically "whether the USDOC 
intended to, and the extent to which it did, determ ine whether these exporters actually dumped in the 
period of review …."  In response the United States answers that: (1) it did not intend  to determine 
whether these exporters actually dumped in the period of review,
12 but (2) that it did in fact make a 
determination that Acindar likely had dumped.13 
                                                      
10 See US Answers to Panel Questions, 24 July 2006, paras. 13-15, 19-20.  
11 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , paras. 234-235. 
12 See US Answers to Panel Questions, 24 July 2006, para. 26 (the United States, referring to the 
Section 129 proceeding, states:  "Nor did Commerce seek  to establish the existence of dumping") and para. 28 
("Commerce did not intend to determine whether the Argentine exports to the United States were dumped 
during the period of review").  
13 See US Answers to Panel Questions, 24 July 2006, para. 31 ("Commerce concluded that it was likely 
that Acindar had dumped during the life of the order").  WT/DS268/RW 
 Page E-87 
 
 
   
18. The answer by the United States is puzz ling, contradictory, and unnecessarily ambiguous 
given the clear statements USDOC made in the Section 129 Determination, and the United States made in its written submissions to  this Panel.  For example: 
 
• In the Section 129 Determination, the United States explains:  "Based upon the 
foregoing, and in the absence of usable cost  date from Acindar, we find that Acindar 
likely was dumping subject OCTG during the original Sunset review period."  (ARG-16, page 7). 
 
• In the US First Submission to this Panel, the United States explains:  "The Panel 
found that the fact that dumping duties continued to be collected on imports over the 
life of the order did not represent 'an ad equate factual basis for the proposition that 
dumping continued ' during the period 1995-2000."
14  Therefore, Commerce 
collected additional evidence on this matter.  
 
• In paragraph 38 of the US First Submission, the United States is even clearer in its 
contradiction of its current position:  "Commerce sought to evaluate whether dumping 
continued over the life of the order."   
 19. The position that the United States explains in its  answer to the Panel's direct question is not 
the position that it took previously.  The Panel must  make its assessment based on the Department's 
actions and statements in the Section 129 determin ation, not the post hoc rationalizations provided 
now. 
 20. The answers offered by the United States to this question contain ot her contradiction and 
inaccurate statements that Argentina would like to co rrect.  First, the United States indicates that "… 
none of the Argentine producers maintained their pr oduct-specific cost data," and that "had the 
Argentine producers been able to report their actua l product-specific cost information, it could have 
been verified by tying the cost back to the financial statements."
15  The companies obviously retained 
product-specific costs.  The problem was that  USDOC requested the product-specific costs  for a 
period extending 5-10 years prior to the request.   Therefore, the problem is not a failure to maintain 
product-specific costs, it is a problem of the USDOC 's failure to request the information in 2000, 
when it was required to make its pros pective determination at that time. 
 
21. Also, the suggestion that the information could not be "verified by tying the costs back to the 
financial statements" is wrong a nd unsupported.  In fact, in the Questionnaire, the Department 
required a reconciliation of the cost information to the financial statements.  Siderca provided such a 
reconciliation.  The USDOC did not verify the info rmation, which is a result of its own decisions 
regarding the substance and procedure of the S ection 129 Determination.  The USDOC cannot choose 
to forego a verification, and then simply assert that the information could not be verified.  As Siderca 
explains in its comments to the response of th e United States to Question 30, the Questionnaire 
instructions indicated that the information had to be  verifiable, and Siderca prepared and presented the 
information consistent with those instructions.  
22. Second, the United States makes a series of contradictory and, in the end, unsupportable 
references to the notion of home market viability and how it affected the USDOC's decisions about 
what questions to ask the exporters.  In the subs tantive meeting of the parties, the United States 
indicated that it decided not to request home mark et or third country sales information from the 
exporters because it knew from a s ubsequent, post-sunset review th at Acindar had no sales in the 
                                                     
 
14 US First Submission, para. 35 (footnote omitted). 
15 US Answers to Panel Questions, 24 July 2006, paras. 25, 26. WT/DS268/RW 
Page E-88  
 
  Argentine market.  In its response to the Panel's questions, the United States echoes this explanation 
in one portion by saying, "Aware that Acindar,  the only exporter, had no home market or third 
country sales, Commerce drafted the questionnaire with the intention of asking questions that 
Respondents could actually answer, and therefore requ ested the product-specific cost data to provide 
an estimate of the normal value."
16 
 
23. There are a few problems with this explanati on.  First, it makes clear that the Department 
relied on information that did not exist at the time of  the sunset review, and that it did not learn until 
after the sunset review.  This information could not possibly support a 2000 decision to continue the 
measure; the information did not even exist then. 
 
24. Second, If USDOC wanted information regard ing any Acindar home market sales during the 
sunset review period, it should have asked for that information in the Section 129 proceeding, rather 
than relying on "knowledge" or "awareness" that it  gained about Acindar after the sunset period.  
Notwithstanding this important point, the Governme nt of Argentina also understands that the post-
sunset "awareness" that the United States has describe d to this Panel is factually inaccurate.  In the 
verification report from the USDOC's first review of Acindar (a document dated 27 August 2002; that 
is, two years after the close of the sunset period), the USDOC explains that Acindar did have some home market sales of OCTG during the 2000/01 period reviewed in that case, and the USDOC reviewed the specific invoices related to those sales.  
25. Finally, the United States creates more contra dictions when it tries to explain its decision 
making at the time of issuing its Questionnaire.  The United Stares explains that "Commerce drafted 
the Questionnaire with the intention of asking ques tions that the Respondents could actually answer 
...."
17  The United States further adds that counsel fo r US Steel asserted that the Argentine exporters 
did not have a viable home market, and implies that  this was an additional basis for the Department's 
decision not to request home market sales information.18  The obvious problem with this explanation 
is the timing.  USDOC sent its questionnaire to the Argentine exporters on 31 October 2005 (ARG- 13), while the letter from counsel for US Steel was filed on 2 December 2005 (ARG-27).  Obviously, assertions by counsel for US Steel, and Siderca's rebuttal of those assertions, could not 
possibly explain the decision that the Department made when it "drafted the Questionnaire" several 
weeks earlier. 
 
26. The responses by the United States to questions 10(a) and 10(b) seem to reflect the answers 
that the United States believes that the Panel wants to  hear, rather than the answers that reflect the 
reality of USDOC's conduct of the Section 129 proceedi ng.  As a result, the United States enters into 
contradictions of explanations it has provided to th is Panel and, more importa ntly, of the explanations 
it provided in the Section 129 Determination, which is the measure taken to comply. 
 
Argentina's Comments on US Answer to Questions 11(a), (b), (c)
 
 
27. The Panel asks a series of questions regardi ng the definition of dumping found in Article 2.1 
as it relates to the obligations of Article 11.3.  Th e answers by the United States to these questions are 
unsatisfactory. 
 28. The answers begin with more contradictions .  The United States indicates that "Commerce 
concluded that it was likely that Acindar had dumped during the life of the order."
19  It should be 
recalled that the United States explained that US DOC did not intend to make any such finding.  
                                                      
16 US Answers to Panel Questions, 24 July 2006, para. 25. 
17 US Answers to Panel Questions, 24 July 2006, para. 25. 
18 See US Answers to Panel Questions, 24 July 2006, para. 25, note 26. 
19 US Answers to Panel Questions, 24 July 2006, para. 31.  WT/DS268/RW 
 Page E-89 
 
 
  (See response to Questions 10(a) and (b) above).  The Department then states in response to 
Question 11(b), that "Commerce did not determine the existence of or degree of dumping during the 
Sunset period of review ….".20 
 29. Argentina submits that these two statements cannot both be correct.  The United States clearly 
indicates in its Section 129 Determination that it c oncluded that the existence of dumping by Acindar 
was "likely" during the review period.  Therefore,  it is simply wrong for the United States to contend 
in paragraph 33 that it made no determination as to  the existence of "dumping" during the sunset 
period.  It did make such a determination, but unab le to show that "dumping" existed, it stated that 
"dumping" likely existed. 
 
30. The United States also introduces a new argument and a new justification for its actions in the 
Section 129 Determination, explaini ng that USDOC acted consistently  with paragraph 7 of Annex II 
to the Anti-dumping Agreement, because that provision refers to "other independent sources" as including "published price lists, official  import statistics and Customs returns."
21  However, the 
United States seems to forget that the intent of paragraph 7 of Annex II is to explain what "other 
independent sources" can be used when an exporter is asked specific questions and fails to respond .  
Notably, these other sources of information could be used by an authority if it asks the exporter for 
normal value and export price information, and the e xporter does not provide that information.  As is 
well established in this case, the USDOC never even asked for that information. 
 
31. It is also evident from the reference that the United States is grasping for straws at this point.  
To suggest that the "published price lists" referred to in paragraph 7 of Annex II provides support for 
USDOC's use of average pricing data in the importing country as a surrogate for normal value  is not 
serious.  The references have a much clearer, logical  meaning.  For example, if an exporter does not 
provide its export prices or its home market prices, then it would be acceptable for the authority to 
rely on the published price lists that would tend to s how what the exporters pri ces are in its export or 
home market.  Similarly, the reference to "official  import statistics and Customs returns" are logical 
when one considers that they could be used as a surrogate for export price if the exporter does not 
provide transaction-specific information regarding its  exports, or, potentially as a surrogate for third 
country price where the exporter does not provide that information.  No reasonable interpretation of paragraph 7 of Annex II would justify the use of Cu stoms data when the auth ority never even asked 
the exporter for this information, or US market da ta as a surrogate for the exporter's normal value. 
 
Argentina's Comments on US Answer to Question 12 (a)
 
 
32. In paragraph 36, the United States includes a statement that is fundamental to the 
disagreement between the United States and Argentina in this dispute.  Explaining that Siderca had 
stopped shipping after imposition of the order and th at a new entrant into the United States "had 
appeared anonymously" during the sunset review period without participating in USDOC's sunset 
review proceeding, the United States describes that it was in a difficult position and looking for answers.  According to the United States:  "The answer cannot be the one advocated by Argentina – 
that a lack of shipping activity, or a failure to make oneself known, necessarily requires a negative 
determination as to what would ha ppen if the order were revoked."
22 
 33. Argentina submits that the answer for which th e United States was searching lies in the text of 
Article 11.3.  The answer provided by Article 11.3 is that the Member must terminate  the 
antidumping measure after five years, unless  a determination of likely dumping and injury can be 
made based on positive evidence.  What is absolutely clear fro m the United States' answer to 
                                                     
 
20 US Answers to Panel Questions, 24 July 2006, para. 33. 
21 US Answers to Panel Questions, 24 July 2006, para. 31. 
22 US Answers to Panel Questions, 24 July 2006, para. 36. WT/DS268/RW 
Page E-90  
 
  Question 12 is that it never considered the possibility of  termination.  In fact, it is adamant that "the 
answer cannot be the one advocated by Argentina."  34. Argentina also notes that it is not, of c ourse, arguing that a negative determination is 
"necessarily required."  But, Argentina would agr ee that in cases where there is no evidence that 
revocation of the order would likely lead to continuation or recurrence of dumping, the answer must 
be termination.  Article 11.3 says so.  35. The United States makes the statement that "t he investigating authority must do what it can 
with the information it has, including the in formation submitted – or not submitted – by the 
Respondents."
23  Argentina asks that the Panel be diligen t in evaluating this and other statements 
made by the United States in this Article 21.5 pr oceeding.  The United States obviously is trying to 
blur the line between what occurred in the original  sunset review in 2000 and what occurred in the 
Section 129 proceeding.  The latter is the proceeding leading to the Section 129 determination, which 
is the measure taken to comply.  There is simply no basis to suggest that the Argentine exporters 
failed to provide information or failed to cooperate in any manner in the Section 129 proceeding.  
Argentina asked the United States to clarify these in questions in 13 and 14, but the United States 
declined to respond.  As to the requested cost in formation, both exporters e xplained, and no one has 
disputed, that the exporters could have provi ded this information to the USDOC had USDOC 
requested it in the original sunset  review proceeding.  Thus, when the United States complains of the 
"limited amount of information, attributab le entirely to the Respondent's own choices,"24 the Panel 
must be careful not to be fooled into thinking that USDOC's hands were tied in the Section 129 
proceeding and that USDOC could do nothing more th an what it did.  It clearly could have done 
more, but it made choices, and a lot of assumptions, in order to find a way to justify continuing the 
measure.  As the United States made clear the "a nswer cannot be the one advocated by Argentina." 
 Argentina's Comments on US Answer to Question 12(b)
 
 
36. In Question 12(b), the Panel asks the Unite d States to address the differences in physical 
characteristics of the products compared and wh ether these factors were known to the USDOC and 
taken into account in the Section 129 proceeding.  Th e answer, particularly in paragraph 41, is a series 
of unsupported statements that prove that Commerce knew, but chose to ignore, that these differences 
affected the comparison of OCTG products.  Also, the United States continues to make assertions that 
have been proven through this proceeding to be incorrect.  We address each of these below: 
 37. The following sets forth US statements in  paragraph 41 of its answers, followed by 
Argentina's comments: 
 
• Referring to the Preston Pipe & Tube Report, the United States asserts:  "Its 
segregation of tubing from casing also addressed much of the size concern Argentina now raises as tubing is a small tubular pr oduct in limited sizes and casing is larger 
size material.  Even in the comparison Ar gentina raised during the Panel hearing, 
Argentina conceded that there is minimal overlap in sizes between tubing and 
casing." 
 
o The statement that the distinction between tubing and casing sufficiently 
addresses the effect of size on the cost of producing OCTG is absolutely unsupported.  Further, Argentina made no such concession in the hearing.  To 
the contrary, Argentina provided one example which disproves the point made 
by the United States.  It was an exampl e of a 4 ½ inch outside diameter OCTG, 
                                                     
 
23 US Answers to Panel Questions, 24 July 2006, para. 36. 
24 US Answers to Panel Questions, 24 July 2006, para. 36.  WT/DS268/RW 
 Page E-91 
 
 
  which the evidence established could be so ld as either casing or tubing.  That 
one example shows that the tubing/casing classification cannot be relied upon to sufficiently account for the differen ce in cost caused by the size of the 
OCTG products.  There are many other examples in which certain sizes of tubing are more similar to casing than to other tubing, and also many examples 
of casing that is more similar to tubing than other casing.
25  It is simply wrong 
for the United States to continue to assert these factually incorrect statements.  
In addition to being unsupported a nd wrong, it is also clear that none of this 
analysis that the United States offers now was done during the Section 129 
Determination .  USDOC simply assumed these facts (which, in fact, are 
wrong) and went forward with its impr oper comparisons (both the comparison 
of alloy to carbon costs, and the comparison of Acindar's exports compared to Preston Pipe categories). 
 
• The United States also states that "Additionally, though the Preston Pipe & Tube 
Report does not distinguish between end finish (e.g., plain end vs. threaded and 
coupled), the universe of material included in the carbon welded tubing and carbon 
welded casing groups does include both plai n end and threaded and coupled material, 
diminishing any impact this may have on the price comparisons." 
 
o This, too, is completely unsupported, and was never part of the Section 129 
Determination.  And the statements are illogical.  The problem is that both 
types of end finish pipe are included in  the Preston Pipe & Tube Report, but no 
one knows the relative volume of each end finish within the category.  Given 
that plain end and threaded and coupled OCTG have different costs,
26 the 
inclusion of both end finishes in no way can be said to "diminish [] any impact this may have on price comparisons."  Rather than diminishing the impact, it 
simply blurs the picture so that the comparisons are less reliable. 
 
• The United States next addresses the problem of transportation costs:  "With respect 
to transportation costs, we note that not all of the Preston Publishing selling prices included transportation costs.  The Pres ton Pipe data included both domestic and 
import shipments.  The terms of the latter were fob mill." 
 
o The United States is finally conceding th e issue that it does not know what is 
included in the prices reported in Prest on Pipe & Tube Reports.  Even with 
respect to transportation costs, it has to concede that the Preston Pipe & Tube Report prices contain some unknown ble nd of domestic and imported prices, 
some with and some without the transportation costs included, and with no idea 
of the amount of any transportation costs.  Added to the inability to control the 
physical characteristics, this concession regarding the terms of sale associated with the average product grouping prices further undermines the reliability of the comparison the Department performed to determine that Acindar likely was 
dumping during the period. 
 
                                                     
 
25 See ARG-34 (4 ½ inch case (page 6) are more simila r to 3 ½ and 4 ½ inch tubing (page 11) than the 
larger casing.  Such as all the casing produced at US Steel Lorain Ohio plant (10 ¾ inch and higher) (page 9) .  
Please note that the page number references are to the hand-written page numbers in the upper right hand corner 
of ARG-34.  
26 This has been adequately established on the reco rd of this proceeding: Argentina showed that in 
some cases the differences in price  for a plain end and T&C OCTG can be $250 per ton; Siderca's cost 
information also shows, at the product group level,   the differences in cost for end finishing.  WT/DS268/RW 
Page E-92  
 
  • The United States then adds:  "Even had Commerce been able to adjust for these 
factors, Acindar's sales prices were so fa r below the US average prices that the end 
result would likely have not changed." 
 
o There is no factual support for this stat ement.  In fact, the United States has 
claimed confidential treatment for the im port prices used in its comparison, and 
the Panel indicated in the substantive meeting of the parties that it was not 
inclined to investigate the degree to which the AUVs from the Customs data 
were lower than the Preston Pipe Report data.  Without this information, the 
Panel can give no weight to this unsu pported statement by the United States 
that Acindar's prices were "so far belo w" the average market prices.  Also, 
despite the statements by the United States to the contrary, this statement seems 
to demonstrate that it is making a dete rmination regarding the existence of 
dumping. 
 38. In paragraph 42, the United States notes th at Exhibit ARG-34 and Exhibit ARG-35 "were not 
on the record of the Section 129 proceeding," and suggests that the Panel therefore cannot consider 
this information.  The United States misses the obvious fact USDOC bears the responsibility for the 
failure of this information to be on the record of the Section 129 proceeding.  In fact, one of Argentina's Article 6 claims is that the United Stat es had an obligation to disclose to the parties the 
types of comparisons it was making, and the assumpti ons it was applying to the cost data that it 
ultimately rejected.  Had the Depa rtment made these disclosures, th e Argentine exporters could have 
disproved all of these statements in the Section 129 proceeding, just as Argentina is doing before this 
Panel.  As Argentina explained in its submissions a nd in its Oral Statement, the Article 6 claims are 
inextricably linked to the substantive Article 11. 3 claims:  USDOC had an obligation to develop 
positive evidence that dumping was likely to continue or recur if it sought to continue the measure.  It 
failed to do this in the Section 1 29 Determination, and the United St ates complaint in paragraph 42 is 
additional proof of this failure. 
 39. In paragraph 43, the United States moves to its  alternative argument and introduces more new 
facts.  It states:  "Even if the Panel were to consider the facts introduced here, and not in the 
Section 129 Determination, the price lists included therein are for seamless OCTG yet Acindar sold 
only welded OCTG – a product with a very different cost and price structure.  Furthermore, a price 
list is not the actual price arrived at for the sale.  In fact, discounting of price lists was common 
practice during the period because of the depressed condition of the OCTG market."  The comment 
misses the point and again shows the deficiencies of the review conducted by the USDOC.  The price 
list was referred to during the Oral Statement for two purposes; to show the price difference  of a 
plain end and threaded and coupled OCTG, and as evidence of the cost difference  of the pipe.  Thus, 
it is easy to see that the evidence re lates to the cost of producing a particular end finish on a pipe 
(compared to no end finish, or plain end), and the co mmercial value that is added by that processing.  
Therefore, whether the pipe itself is welded or seamless is does not bear on the issue.  Also, there is obviously no factual basis for the statement that  "discounting of price lists was common practice 
during the period." 
 
40. In paragraph 44 the United States offers its own analysis of the data and purports to show that 
Argentina has understated the price difference be tween carbon and alloy OCTG.  In doing so, the 
United States seeks to rebut an argument that Argentina did not make.  Argentina never said that the cost of producing all carbon OCTG  is within 10 per cent of all alloy OCTG .  In fact, Argentina was 
very precise with respect to its statement, quotin g specific prices from the price list.  But, in 
attempting to rebut the point, the United States on ly serves to highlight the deficiencies of its 
comparisons.  It states, correctly, that "there are a multitude of alloying grades …" which "will reflect 
a composite of these alloy grades."  The "multitude " and "composite" nature of these comparisons  WT/DS268/RW 
 Page E-93 
 
 
  goes precisely to the point Argentina has made since the beginning of the Section 129 proceeding.  By 
relying on comparisons at such a general level, the USDOC could not reach the specific conclusions 
that it made during the Section 129 proceeding.  41. The United States ends with the conclusory st atement that "Commerce analyzed the evidence 
on the record before it, which was sufficiently specific to enable a basic comparison on Acindar's 
prices to the prevailing market prices."  Obviously, it was not sufficiently specific, which is precisely 
the point of many of Argentina's concerns and the Panel's questions.  
Argentina's Comments on US Answer to Questions 13 and 15
 
 
42. Questions 13 and 15 address several issues  regarding the USDOC's use of financial 
statements in the Section 129 proceeding.  In genera l, the answers provided by the United States as to 
the use of the financial statements are consiste nt with Argentina's understanding, as described in 
Argentina's response to the Questions 13 (a) and (b) of Argentina's response to the Panel's questions. 
 
43. However, Argentina would like to draw the Pa nel's attention to two particular aspects of the 
US response.  First, in response to Question 13, the United States points to a number of excerpts to the 
financial statements of several parties (the Argentine exporters and US producers) to support its 
statement that the OCTG was depressed at certain poin ts in time.  Argentina agrees that the statements 
support this assertion.  However, the Panel should not  forget that the United States made a specific 
finding that there was no indication of improvement  in the OCTG market.  USDOC referred to this 
finding in two specific contexts:  (1) as an add itional reason why Acindar was likely to dump in the 
future;27 and (2) in interpreting the condition of the OCTG market.28 
 44. The financial statements quoted by the United States in response to Question 13(a) all 
contradict the Department's findings.  All of them reference, to one degree or another, the "recovery" 
that began to appear at the end of  1999 and had continued into 2000.  The United States tries to save 
the situation by pointing to the cautious language in the financial statements indicating that no 
assurance can be given regarding the "timing and exte nt of such recovery," which are normal, prudent 
statements through which management indicates to inv estors that they should not rush to judgment.  
However, the financial statements are unanimous in  reporting the beginning of the recovery that the 
USDOC indicated was nowhere on the horizon. 
 45. The United States tries to reconcile all of this  in its response to Question 15, indicating that 
"because of price volatility, price trends alone, in this  particular industry, are not necessarily reliable 
or sufficient to indicate true market recovery .  Commerce did not consider a slight increase in prices 
at the end of the period a sufficient indicator of a lasting shift in the demand for OCTG  that had 
been depressed for the majority of the period."
29  While this language is more measured and perhaps 
more prudent, it is not the language that was used  in the Section 129 Determination, in which the 
USDOC stated that there was an ab sence of evidence that "prevailing market conditions were likely to 
improve in the near future."30  Also, injecting the new terms "true market recovery" and the 
requirement for a "lasting shift in the demand for OCTG" does little to help reconcile the difference 
                                                      
27 USDOC stated:  "absent evidence that Acindar in tended to cease selling in the United States, and 
absent evidence that prevailing market conditions were likely to improve in the near future , we consider such 
sales indicative of Acindar's likely pricing behaviour were the order to be revoked."  ARG-16, page 8. 
28 USDOC stated:  "given the weakened condition of Si derca at the end of the original Sunset review 
period, we consider that there was no valid indication that a sudden turn-around in the OCTG was likely ."  
ARG-16, page 10. 
29 US Answers to Panel Questions, 24 July 2006, para. 66. 
30 USDOC Section 129 Determination at 8 (ARG-16). WT/DS268/RW 
Page E-94  
 
  between the Department's findings in the Secti on 129 Determination and the evidence from all the 
financial statements -- all of which c oncur that a recovery was underway. 
 46. In its response to Question 15 (b), the Unite d States provides a new analysis to support its 
notion that the recovery that appeared at the end of the period was not reliable.  It should be obvious 
to the Panel that the new analysis cannot possi bly justify the decision in the Section 129 
Determination because it was not, by definition, part  of that analysis.  Also, the analysis using 
selected prices from the general Preston Pipe categories suffers from the same problems that have been explained several times:  each product cate gory contains an unknown mix of products, and the 
mix may be different from month to month.  Therefor e, the fact that the average price for the group 
carbon ERW tubing in January was $762 and fell in Febr uary to $759, as reported in the new analysis 
done by the United States in paragraph 63, does not mean  that the recovery is faltering.  It could just 
mean that there was a different mix of products  within the carbon ERW tubing category sold in 
January and February.  The same can be said for a ll of the small differences in the comparisons that 
the United States introduces in pa ragraph 63 of its answers. 
 
Argentina's Comments on US Answer to Question 14(a) and (b)
 
 
47. The Panel asks the United States to react to  Argentina's statement that, with respect to 
whether "dumping" occurred in the past, the authority can either determine that it did, determine that 
it did not, or concede that it does not know.  Rather  than give a direct answer, the United States once 
again returns to the concept of "likely past dumpi ng" and contends that "Argentina seems to assume 
that inferences cannot be drawn about the past.  However, Argentina does not explain why that is 
true."31 
 48. Argentina has repeatedly offered explanations, grounded in the text of the Anti-Dumping 
Agreement, why it is impermissible to base on Article  11.3 determination on an inference, that itself is 
based on yet another inference of likely past dumping.  49. The US answer ignores these explanations a nd repeats the refrain that the provisions of 
Article 2 of the Anti-Dumping Agreement and the definition of "dumping" are not relevant to 
Article 11.3 determinations.  According to the Unit ed States "nothing in the text of Article 11.3 
requires an investigating authority to determine that  dumping occurred in the past or to conclude that 
it does not know whether dumping occurred in the past."
32 
 50. While the United States preference is for Article  11.3 to be free from disciplines, it is not.  
The word "dumping" has a specific meaning in Ar ticle VI of the GATT 1994 and in the Anti-dumping 
Agreement, and the Appellate Body already has clarified that the meaning of "dumping" in 
Article 11.3 is the same as the meaning of the term in Article 2:  
[T]he words "[f]or the purpose of this Agre ement" in Article 2.1 indicate that this 
provision describes the circumstances in which a product is to be considered as being 
dumped for purposes of the entire  Anti-Dumping Agreement, including Article 11.3.  
This interpretation is supported by the fact  that Article 11.3 does not indicate, either 
expressly or by implication, that "dumping" has a different meaning in the context of sunset reviews than in the rest of th e  Anti-Dumping Agreement.  Therefore, 
Article 2.1 of the  Anti-Dumping Agreement  and Article VI:1 of the GATT 1994 suggest that the question for investigating authorities, in making a likelihood 
determination in a sunset review pursuant to Article 11.3, is whether the expiry of the 
duty would be likely to lead to continuation or recurrence of dumping of the product 
                                                     
 
31 US Answers to Panel Questions, 24 July 2006, para. 54. 
32 US Answers to Panel Questions, 24 July 2006, para. 55.  WT/DS268/RW 
 Page E-95 
 
 
  subject to the duty (that is, to the introdu ction of that product into the commerce of 
the importing country at less than its normal value).33 
 51. Consequently, if USDOC is going to infer likely "dumping" from some past action, that past action must be probative of "dumping."  "Dumping" has a specific meaning under the Anti-Dumping 
Agreement, and that meaning is contained in Artic le 2.  Even though the USDOC is not required to 
calculate a dumping margin in an Article 11. 3 review, the requisite  likelihood of dumping 
determination must be related to the concept of "dumping"  that is defined in Article 2. 
 52. As explained above in its comments to the US responses to question 11, the United States 
tries to straddle two different positions regarding its  finding of "likely past dumping":   "Commerce 
concluded that it was likely that Acindar had dumped during the life of the order,"
34 and "Commerce 
did not determine the existence of  . . .  dumping during the Sunset period of review …."35  T h e  
United States tries to maintain this dubious distin ction in its response to Question 14 (b), where it 
states in different places of the same answer th at: "Simply because Commerce used the term 'likely 
dumping' to describe its findings … does not mean  that Commerce determined the existence of 
dumping…" and that Commerce concluded that "Acindar had likely dumped during the period."36  
These two statements are irreconcilable, especially in the same answer.  53. Also, repeating a theme that appears often in  the responses, the United States explains that 
"Commerce had to rely upon US average unit values as a type of surrogate for normal value out of 
necessity because there were no other reliable data."
37  But, as should be clear at this point in this 
proceeding (and the United States does not dispute), Commerce never asked for any other such data, 
and the Argentine exporters did not know that Commerce was planning to use US average unit 
values as a "type of surrogate for normal value." 
 54. As a result of these flaws with the USDOC's approach on two key points that form the basis 
for its decision – the "likely past dumping" and the inference of likely continued dumping in the future – the Department failed to establish a suffi cient factual basis, and did not reach a reasoned 
conclusion.  
Argentina's Comments on US Answer to Question 16
 
 
55. In this question, the Panel asks the United States to comment on Argentina's assertion that 
OCTG prices were significantly higher in the United St ates than in other market s.  In response to the 
question, the United States asserts that "Comme rce made no such finding, and Argentina has not 
identified the information on the record to which it was referring."38  The United States is wrong on 
both counts. 
 56. First, the US statement is contradicted by  the Section 129 Determination (ARG-16) at 11, 
where the USDOC states:  
We also note that the ITC's finding that OCTG producers had incentive to devote 
more of their productive capacity to producing and shipping more to the US market 
was sustained by the Appellate Body.  
 
                                                     
 
33 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 109. 
34 US Answers to Panel Questions, 24 July 2006, para. 30. 
35 US Answers to Panel Questions, 24 July 2006, para. 33. 
36 See US Answers to Panel Questions, 24 July 2006, paras. 57, 60. 
37 US Answers to Panel Questions, 24 July 2006, para. 58. 
38 US Answers to Panel Questions, 24 July 2006, para. 67. WT/DS268/RW 
Page E-96  
 
  57. Thus, USDOC specifically refers to the ITC' s finding in its Section 129 determination, and 
also to the Appellate Body's approval of the re asons why the USITC believed that OCTG producers 
had an incentive to increase sh ipment quantities to the United States.  The USITC found that 
US market prices were significantly higher than world market prices and this Panel upheld USITC's 
affirmative determination noting, among other things , that the US price of OCTG during the review 
period was significantly higher than the price of OCTG in other markets.
39  The passage in the Section 
129 Determination indicates that USDOC was also aware of this fact and "noted" the fact in rendering 
its decision.  
Argentina's Comments on US Answer to Questions 17(a) and (b)
 
 
58. Argentina agrees with the United States that  the Panel exercised judicial economy with 
respect to the volume issue.  (See also Argentina' s answer to this question).  However, the United 
States is incorrect when it asserts that Argentin a was required to appeal the Panel's exercise of 
discretion as "false judicial economy," or abandon its ri ght to have the issue considered on the merits. 
 59. The flaw in the argument put forward by th e United States is its refusal to acknowledge that 
the Panel already had found that USDOC's 2000 sun set determination violated Article 11.3.  
Therefore, in order to bring itself into complian ce with the rulings and recommendations of the DSB, 
the United States would either have to revoke the measure or justify the continuation based on some 
further determination.  Any furthe r determination would be subject to review under Article 21.5, and 
the Panel would be required to review all stated b ases of that decision in order to determine whether it 
was consistent with Article 11.3.  Thus, the exercise  of discretion by the Panel was not false judicial 
economy because the Panel had already disposed of th e matter by finding a violation of Article 11.3, 
and any future determination seeking to justify c ontinuation of the measure would have to comply 
with Article 11.3. 
 
60. The Panel should reject the US assertion th at Argentina "disregards the rulings and 
recommendations [of the DSB] and appears to be aski ng the Panel to treat this proceeding as if it were 
an original proceeding… this is not an orig inal proceeding – it is a compliance proceeding."
40  The 
continued reliance by the United States on the EC – Bed Linen (Art. 21.5 – India) decision is 
misguided.  In addition to the explanation previ ously provided by Argentina, Argentina agrees with 
the points raised by the Eu ropean Communities that the EC – Bed Linen (Art. 21.5 – India) case was 
factually and legally very different from the present case.  As the EC noted:  
In the present case… the focus of the judicial  review is on one specific determination 
– that of likelihood of continuation or recurrence of dumping – which has been reached on the basis of a certain number of considerations, taken together.  In such 
circumstances, the EC tends to agree with Argentina that the Article 11.3 
redetermination can only have been based on a consideration of all of these factors, 
taken together and that, accordingly, all of those factors necessarily fall within the 
scope of this Panel's review  under Article 21.5 of the DSU.
41 
 
61. As for the jurisprudence related to the exercise of judicial economy, the Panel in the 
US – Steel Safeguard  summarized key principles as follows: 
 
The principle of judicial economy is recognized in WTO law. In US – Wool Shirt and 
Blouses , the Appellate Body made clear that pa nels are not required to address all the 
claims made by a complaining party. The Appellate Body relied on the explicit aim of 
                                                      
39 See Panel Report, paras. 7.291, 7.297. 
40 US Answers to Panel Questions, 24 July 2006, para. 70. 
41 EC Third Party Oral Statement, 13 July 2006, para. 20.  WT/DS268/RW 
 Page E-97 
 
 
  the dispute settlement mechanism which is to secure a positive solution to a dispute 
(Article 3.7) or a satisfactory settlement of  the matter (Article 3.4). Thus, the basic 
aim of dispute settlement in the WTO is to settle disputes and not to develop jurisprudence. The Appellate Body stated: 
 
"[G]iven the explicit aim of dispute settlement that permeates the DSU , we do 
not consider that Article 3.2 of the DSU is meant to encourage either panels 
or the Appellate Body to 'make law' by clarifying existing provisions of the 
WTO Agreement outside the context of resolving a particular dispute. A panel 
need only address those claims which must be addressed in order to resolve 
the matter in issue in the dispute."
42 
 62. The Panel in US – Steel Safeguards  had exercised judicial economy with respect to a number 
of claims, reasoning that because it had found the safeguard measures to inconsistent under other 
provisions, there was no need for the Panel to ex amine the measures under other cited provisions.  
The Panel found that that it had "effectively resolved  the dispute" since the measures were "deprived 
of a legal basis."
43 
 63. Similarly, the effect of the Panel's findi ngs in this case was that USDOC's 2000 sunset 
determination was inconsistent with Article 11.3.  Accordingly, Argentina believed then, as it 
continues to believe now, that the United States woul d either have to revoke the measure or make a 
new determination, and any new dete rmination would be subject to th e same temporal and substantive 
obligations of Article 11.3.  
64. Finally, the Panel should dismiss the US conten tion that were the Panel "to make an adverse 
finding now" on the USDOC's volume analysis, "the United States would have no reasonable period of time to bring its measure into conformity w ith the Antidumping Agreement and would be subject 
to potential suspension of concessions as a result of a finding of breach that was not in the original 
report."
44  As to the possibility of facing suspension of  concessions, this is a consequence of the WTO 
dispute settlement system.  The United States has been  on notice since the original Panel finding that 
its continuation of the antidumping measure did not comply with US obligations under Article 11.3.  
The United States was further aware that, if it wanted  to continue the measure, it would need to make 
a new determination that is fully consistent with Ar ticle 11.3.  By choosing continue the measure, and 
by choosing to rely on volume as one of the fi ndings supporting the new determination supporting 
continuation, the United States placed itself in the po sition that it describes.  Also, the United States 
also clearly had the option of not relying on volume.  The United States does not even assert this position before this Panel, but this  surely would have been the easiest way for the United States to 
have avoided the purported "inequity" that would arise by any adverse ruling on the volume analysis. 
 65. Also, the United States response fails to rec ognize any inequity for Argentina.  Argentina 
explained the inequities that it would suffer in its response.
45 
 66. The inequities that would be suffered by Argentina are in no way abstract or hypothetical.  In fact, they are already starting to materialize.  Just last week, the USDOC  released its adequacy 
determination in the second sunset review, which is attached as Exhibit ARG-39.  In that decision, 
and despite a response by Siderca and facts on th e record that the only other producer, Acindar, 
                                                     
 
42 Panel Report, US – Steel Safeguards , para. 10.701 (quoting Appellate Body Report, US – Wool Shirt 
and Blouses ). 
43 Panel Report, US – Steel Safeguards , para. 10.705. 
44 US Answers to Panel Questions, 24 July 2006, para. 73. 
45 See Argentina's Answers to the Panel's Questions, paras. 69-74. WT/DS268/RW 
Page E-98  
 
  stopped producing OCTG in 2001, USDOC found Siderc a's response "inadequate" and determined to 
expedite the sunset proceeding.  The reason?  Volume.
46 
 67. The newly-released decision proves the inequ ities that Argentina will suffer if this Panel 
decides not to resolve the matter before it, in all its aspects, in cluding the volume inference that 
USDOC expressly relied upon to make its Section 129 determination.  It also is more compelling 
evidence as to why this Panel should exercise its di scretion to "suggest" that the United States should 
terminate the measure, if the Panel finds that the United States has not brought itself into compliance.  
Any other decision by this Panel will not help resolve the matter, as th e USDOC seems intent on 
repeatedly invoking the "exception" of Article 11.3,  despite a lack of evidence of likely dumping. 
 Argentina's Comments on US Answer to Questions 17(c)
 
 
68. The Panel should reject the US response that USDOC's "volume analysis" was "part of the original determination" and was "s imply reincorporated into the redetermination" and therefore "the 
United States was not obliged to reconsider that  analysis to implement the recommendations and 
rulings of the DSB."
47 
 
69. First, the United States has not disputed th at the Section 129 Determination is a "measure 
taken to comply" for the purposes of this DSU Article 21.5 proceeding.  Second, the USDOC 
specifically relied on the inference of likelihood of dumping arising from its findings on import 
volumes from the original sunset review as a basis fo r the Section 129 Determination.  Therefore, the 
findings on volume are an integral part of the "measures taken to comply" for the purposes of 
Article 21.5.  Finally, EC – Bed Linen (Art. 21.5 – India)  does not support the US position. 
 
70. The USDOC Section 129 Determin ation is one of the measures taken to comply by the United 
States in response to this Panel's finding that the USDOC's 2000 likelihood of dumping determination 
was inconsistent with US WTO obligations.  One of  the principal bases for the US determination is 
the USDOC's inference that dumping would be likel y to continue or recur based on the post-order 
decline in OCTG imports to the United States.48   The Section 129 Determination is clear that USDOC 
                                                      
46 The USDOC document alleges an apparent contradiction in Siderca's position.  There is no 
contradiction at all.  Siderca's substantive response ex plained that:  1) Acindar stopped producing OCTG in 
2001, the first year of the second sunset period; and 2) that Siderca's affiliate, SIAT , purchased Acindar's tubular 
production assets in 2005, so that Siderca and its aff iliates were the only known OCTG producers in Argentina 
at this time.  In a pattern that will be familiar to this  Panel, USDOC made no attempts to clarify any doubts that 
it had, assumed the worst, and issued a decision adverse to Siderca.  The action demonstrates a continuation of the lack of objectivity USDOC displayed in the 2000 sunset proceeding and in the Section 129 determination.  
Siderca did not export, therefore its response could not be adequate. 
47 US Answers to Panel Questions, 24 July 2006, para. 78. 
48 See USDOC Section 129 Determination at 1 (ARG-16)  ("[W]e solicited and considered information 
and argument from domestic and respondent parties for the same period at issue in our original sunset review, 
1995-2000.  Based upon this information and argument, as well as findings on import volumes during 
1995-2000 from the original sunset review , we continue to find that revocation of the order would be likely to 
lead to continuation or recurrence of dumping.")(e mphasis added); USDOC Section 129 Determination at 
6 (ARG-16) ("In making our likelihood determination, we also relied on our previous finding regarding the 
volume of imports of subject merchandise for the period before and the period after the issuance of the 
antidumping duty order ….") (emphasis added); see also USDOC Section 129 Determination at 11 ("Based upon 
this information and argument, as well as findings on import volumes during 1995-2000 from the original sunset 
review , we continue to find that revocation of the order wo uld be likely to lead to continuation or recurrence of 
dumping.") (emphasis added); see also USDOC Section 12 9 Determination at 11 ("Based upon this information 
and argument, as well as findings on import volumes during 1995-2000 from the original sunset review , we 
continue to find that revocation of the order would be likely to lead to continuation or recurrence of dumping.") 
(emphasis added).   WT/DS268/RW 
 Page E-99 
 
 
  "relied on our previous finding regarding the vol ume of imports" as a basis for the Section 129 
Determination.49 
 
71. It is well established that it is not up to the implementing party to decide the scope of 
jurisdiction of an Article 21.5 panel.50 In Canada – Aircraft , the Appellate Body stated that: 
 
[I]n carrying out its review under Article 21.5 of the DSU, a panel is not confined to 
examining the "measures taken to comply " from the perspective of the claims, 
arguments and factual circumstances that related to the measure that was the subject of the original proceedings.  Although th ese may have some relevance in proceedings 
under Article 21.5 of the DSU, Article 21.5 proceedings involve, in principle, not the original measure, but rather a new and di fferent measure which was not before the 
original panel. In addition, the relevant  facts bearing upon the "measure taken to 
comply" may be different from the relevant facts relating to the measure at issue in the original proceedings. It is natural, therefore, that the claims, arguments and 
factual circumstances which are pertinent to the "measure taken to comply" will not, necessarily, be the same as those which were pertinent in the original dispute. Indeed, 
the utility of the review envisaged under Article 21.5 of the DSU would be seriously 
undermined if a panel were restricted to examining the new measure from the perspective of the claims, arguments and factual circumstances that related to the original measure, because an Article 21.5 panel would then be unable to examine fully the "consistency with a covered agreem ent of the measures taken to comply", as 
required by Article 21.5 of the DSU.
51 
 
72. By expressly relying on its original finding on volume, the USDOC placed these findings 
within the scope of the "measures taken to comply" fo r the purposes of this Section 21.5 proceeding.  
After having stated expressly in its implementi ng measure that it relied on its prior findings on 
volume, the United States cannot now declare that this portion of the Section 129 Determination is 
somehow excluded from the scope of "measures take n to comply."  This Panel cannot permit the 
United States to determine unilaterally which parts of the measures taken to comply can be examined 
in the course of this proceeding. 
 73. Furthermore, to permit the United States to set  the Panel's scope of review would prevent the 
Panel from determining the WTO-consistency of one of the US implementing measures.  The 
USDOC did not simply confirm its "original consid eration" of the finding on volume.  Rather, the 
USDOC relied on this finding for the separate and i ndependent purpose of further supporting its 
implementing measure , i.e., the Section 129 Determination.  Instead of indicating that a finding in the 
past "remained unaffected," the USDOC relied on this finding as one of the two bases for its implementing measure. 
 
74. EC – Bed Linen (Art. 21.5 – India)  does not support the US position, and the facts of that case 
differ in a key respect.  India's claim that the EC violated Article 3.5 of the Anti-Dumping Agreement 
                                                     
 
49 USDOC Section 129 Determination at 6 (ARG-16) ("In making our likelihood determination, we 
also relied on our previous finding regarding the volume of imports of subject merchandise for the period 
before and the period after the issuance of the antidumping duty order ….") (emphasis added); see also 
USDOC Section 129 Determination at 11 ("Based upon this information and argument, as well as findings on 
import volumes during 1995-2000 from the original sunset review , we continue to find that revocation of the 
order would be likely to lead to continuation or recurrence of dumping.") (emphasis added). 
50 See, e.g., Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 73 
("A Member's designation of a measure as one taken 'to comply', or not, is relevant to this inquiry, but it cannot 
be conclusive. Conversely, nor is it up to the complaining Member alone to determine what constitutes the measure taken to comply. It is rather for the Panel itself to determine the ambit of its jurisdiction."). 
51 Appellate Body Report, Canada – Aircraft , para. 41. WT/DS268/RW 
Page E-100  
 
  by failing to ensure that injuries caused by "other factors" was not attributed to the dumped imports 
was dismissed because India failed to make a prima facie  case.  India did not appeal that finding.  
When the EC implemented the DSB rulings, it did not revise the analysis of "other factors" made in 
the original determination.  As the Panel noted, "[t]he EC did not … undertake a reconsideration of 
the "other factors' identified by India. Rather, it referred to and confirmed its original consideration  of 
these factors."
52  Also, as the EC noted in its Third Party Oral Submission: 
 
In the present case… the focus of the judicial  review is on one specific determination 
– that of likelihood of continuation or recurrence of dumping – which has been 
reached on the basis of a certain number of considerations, taken together.  In such 
circumstances, the EC tends to agree w ith Argentina that the Article 11.3 re-
determination can only have been based on a consideration of all of these factors, taken together, and that, accordingly, all of  those factors necessarily fall within the 
scope of this Panel's review  under Article 21.5 of the DSU.
53 
 75. EC implementing regulation in Bed Linen demonstrates that the Council indeed simply 
confirmed its initial determination, rather than rely  on such findings for the purpose of its "measure 
taken to comply."  Each of the sections dealing with "effects of other factors" consist of a single 
sentence.  The section on "Imports from third countries" states simply that: "[t]he findings in recitals 
100 and 101 of the provisional Regulation remain unaffected."
54 
 76. In United  States – Investigation of the International Trade Commission in Softwood Lumber 
from Canada, Recourse to Article 21.5 , the Appellate Body clarified that the scope of proceedings 
under Article 21.5 may be limited by the scope of the original proceedings: 
 
For example, a party cannot make the same claim of inconsistenc y against the same 
measure (or component of a measure) in an  Article 21.5 proceeding if the original 
panel and Appellate Body found the measure to  be consistent with the obligation at 
issue… or if the original panel found that the complaining party had not made out its 
claim with respect to the measure (or compone nt of a measure)….   Similarly, a party 
may not , in proceedings under Article 21.5 of the DSU, seek to have the Appellate 
Body "revisit the original panel report"  when that report was not appealed.
55   
 77. As Argentina has argued throughout this pro ceeding, none of the three scenarios identified by 
the Appellate Body apply here.  There was no finding that Argentina failed to make out a prima facie  
case, and the issue has never been ad judicated in the first instance, un like the first and third scenarios 
identified by the Appellate Body and unlike the EC – Bed-linen  case.  In the present case, this Panel 
decided to exercise judicial economy and not to ma ke any finding regarding this point so it is simply 
wrong to state that the i ssue has been decided. 
 Argentina's Comments on the US, Answer to Question 18
  
 
78. The United States contends that "Siderca's  comments explaining the decline in import 
volumes were not germane to the US implementation of the recommendations and rulings of the DSB, 
which pertained to Commerce's reliance on the dumpi ng margin from the original investigation, and 
not to Commerce's volume analysis."56 
                                                      
52 Panel Report, EC – Bed Linen (Art. 21.5 – India ), para. 72. 
53 EC Third Party Oral Statement, para. 20 (footnote omitted). 
54 See Argentina's Second Submission, paras. 94-98.  
55 Appellate Body Report, US – Lumber ITC Investigation (Article 21.5 – Canada) , para. 102, n. 150 
(citations omitted). 
56 US Answers to Panel Questions, 24 July 2006, para. 79 (original emphasis).  WT/DS268/RW 
 Page E-101 
 
 
   
79. The US position on what was necessary for the United States to achieve  compliance in this 
case is directly at odds with its obligations under Ar ticle 11.3.  The US view is also explicit in the 
USDOC Section 129 Determination, in which the Un ited States seeks to insulate the volume inference 
from review in the compliance proceeding based on th is Panel's decision to refrain from deciding the 
issue in its first review.57 
 80. In 2005, as in 2000, the USDOC has again failed to go behind the volume decline and 
examine further the reasons for the reduction in OCTG import volume after the imposition of the 
order.  The fact that the Panel may have exer cised judicial economy on the propriety of USDOC's 
volume inference does not mean that the USDOC' s finding was WTO-consistent.  The Appellate 
Body has clearly articulated that it would be  legally insufficient under Article 11.3 for the 
administering authority to simply presume lik elihood based on a post-order volume decline.
58  With 
respect to the probative value of declining import volumes for the purposes of an Article 11.3 determination, the Appellate Body has clarified that the authority must undertake "a case specific 
analysis of the factors behind a cessation of imports  or a decline in import volumes…  will always be 
necessary to determine that dumping will recur if the duty is terminated."
59  In US - OCTG from 
Mexico  the Appellate Body confirmed that it would viol ate Article 11.3 for an authority to rely on 
presumptions or conjecture as to a company's ability to ship to the US market without dumping.60 
 
81. The Panel's question highlights a portion of Siderca's response: 
 
Whatever the significance of a decline in export volume may be as a general matter, 
Siderca knows that, with respect to Siderca, it does not mean that the product could not be shipped without dumping.  The cost data (even with the limitations explained 
above) supports Siderca's position: Siderca is  a cost-efficient producer of OCTG and 
could have shipped OCTG products profitably to the United States.
61   
 82. As the passage highlighted by the Panel mak es clear, Siderca's information clearly was an 
attempt to demonstrate that the d ecline in volume was not related to  the inability of the company to 
participate in the US market without dumping.  The Argentine exporters explained the reason for the 
volume decline during the sunset period of revi ew, established that Acindar was only a minor 
producer, and demonstrated that Siderca had divers ified its export markets after the imposition of the 
order and that the company performed quite well without exporting to the US market.
62 
 83. The USDOC's 2005 likelihood determination does not even address these arguments, which 
explained the reason for the reduction in Argentine OCTG imports into the United States.  Nor does 
the United States even attempt to offer a response th at addresses the specific language identified in the 
Panel's question.  Instead, the United States retreats  to the familiar refrain that "Siderca's comments 
[on volume] were not responsive to the question asked."
63  Siderca's information relating to the 
volume decline, however, was unquestionably "responsive" to the questions that USDOC had to analyze to bring the United States into complia nce with its obligations under Article 11.3. 
 
                                                     
 
57 USDOC Section 129 Determination at 2 n.4 and 6 n.12 (ARG-16). 
58 Appellate Body Report, US - Corrosion-Resistant Steel Sunset Review , para. 177. 
59 Appellate Body Report, US - Corrosion-Resistant Steel Sunset Review , para. 177. 
60 Appellate Body Report, United States – Anti-Dumping Measures on Oil Country Tubular Goods 
(OCTG) from Mexico , WT/DS282/AB/R. adopted 28 November 2005, para. 199 (" US – OCTG from Mexico "). 
61 Panel Question 18 (quoting Siderca's 30 November 2005 Response). 
62 See Siderca's Response to Questionnaire (30 Nov. 2005) at 7-10 (ARG-15).  
63 US Answers to Panel Questions, 24 July 2006, para. 79. WT/DS268/RW 
Page E-102  
 
  84. Thus, the USDOC's failure to consider Side rca's information and arguments regarding the 
reasons for the volume decline cannot be reconciled w ith the Appellate Body's admonishment that "a 
case-specific analysis of the factors behind a cessation of imports or a decline in import volumes (when dumping is eliminated) will be necessary to determine that dumping will recur if the duty is 
terminated."
64  The Appellate Body in Mexico OCTG  reaffirmed this obligation expressly and again 
cautioned against the "mechanistic" use of presumpti ons in relying on volume declines, noting that a 
"company's strategy and ability to increase or decr ease its exports to particular markets depend on a 
variety of market conditions, such as, in particular , the opportunities available in different markets and 
the competitive conditions in the market place. Ther efore, unless all relevant factors are taken into 
account, there may not be an objective evaluation in such cases of the causes of the variations in 
import volumes in the importing Member's market."65 
 85. The USDOC Section 129 Determination states:  "Declining import volumes after, and apparently  resulting from, imposition of an antidum ping duty order indicate that exporters would need 
to dump  to sell at pre-order levels."
66  The statement shows that the USDOC is still making 
assumptions rather than reasoned decisions based on positive evidence.  There is no factual basis for 
the US assumption, either in the 2000 Sunset Determination or in the 2005 Section 129 Determination.  Instead, the USDOC relies on what "apparently"  is the case, and what an exporter 
"would need"  to do.  This type of conjecture, without f actual basis, does not satisfy the requirements 
of Article 11.3.  Argentina's Comments on the US, Answer to Question 20
  
 
86. Despite the US assertion that "Commerce took [Siderca's comments from its 7 December 
letter] into consideration in its analysis,"67 the USDOC did not address the basic due process concerns 
that Siderca had raised.  87. Siderca's 7 December 2005 Letter to the USDO C expressed key concerns and indicated that 
there was significant uncertainty as to the proce dures for comment and precisely what information the 
Department would be relying on for purposes of its  Section 129 determination.  Because the USDOC 
did not respond, the Argentine companies were precluded from knowing the essential facts and 
information that would serve as the basis for DOC's analysis and, hence, also were prevented from 
being in a position "to present in writing all evidence  which they consider relevant in respect of the 
investigation in question," as required by Article 6.1.  In failing to respond to the due process 
concerns raised by the Argentine companies, and to identify the information that would be used by 
USDOC in its decision making, the USDOC also deprived the Argentine respondents of a "full 
opportunity for the defence of their interests" as required by Article 6.2.  88. The failure of USDOC to respond to these con cerns demonstrates that the United States failed 
to discharge the due process and transparency obliga tions that are central to Articles 6.1 and 6.2 and 
which ensure that interested parties are in a pos ition to defend their interests by having "full" and 
"ample" opportunity to defend their interests. 
 
Argentina's Comments on the US, Answer to Question 21(b)
  
 89. Argentina notes that the United States qualif ies its answer with the phrase "notwithstanding 
the limited time available."
68  Argentina does not agree that the wo rd "practicable" requires this Panel 
                                                      
64 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 177. 
65 Appellate Body Report, US - OCTG from Mexico , paras. 200-201. 
66 USDOC Section 129 Determination at 11 (ARG-16) (emphasis added). 
67 US Answers to Panel Questions, 24 July 2006, para. 83. 
68 US Answers to Panel Questions, 24 July 2006, para. 84.  WT/DS268/RW 
 Page E-103 
 
 
  to take into account the fact that the United States conducted its Secti on 129 determination under a 
shorter time frame.  In general terms, what is "p racticable" for the purposes of Article 6.4 will need to 
be determined on a case-by-case basis.  However, fo r the specific purpose of this case, the Panel can 
readily reject the argument that reduced time frames renders compliance with Article 6.4 somehow "impracticable."  As Argentina has argued, all WTO obligations apply on a concurrent and 
overlapping basis.  The United States was required to  comply with its obligations under Article 6.4 
while concurrently complying with its obligation under Article 21.3(c) to bring its measures into 
conformity with its WTO obligations in the short est period of time possible - which the Arbitrator 
determined to be twelve months. 
 
90. Also, the obligations of Article 6.4 must be read in context.  This context includes other 
provisions of the Anti-Dumping Agreement, most notably Articles 11.3 and 11.4. 
 
91. The United States reference to the fact that one of the five
 memoranda dated 
16 December 2005 "consisted of respondent and domes tic interested parties' submissions in the 
original sunset review"69 completely misses the point.  By virtue of being issued contemporaneously 
with USDOC's Section 129 Determination, the USDOC failed to "provide timely opportunities for all 
interested parties to see" any  of the five memoranda, which were clearly "relevant to the presentation 
of their claims."  92. Finally, supporting the contention that USDOC "disclosed the reasoning as soon as practicable," the United States asserts that "C ommerce received Siderca's rebuttal of IPSCO's 
arguments on the cost data as on 14 December 2005.  The memoranda on the deficiencies in the cost 
data were released just two days later, on 16 December 2005."
70  This is disingenuous.  The 
United States picked the date the last comments were submitted on Siderca's cost data.  Yet, as early 
as 30 November 2005, the USDOC was aware that ther e could be a problem, and could have at this 
time to advise the parties of information that w as "relevant to the presentation of their claims." 
 
Argentina's Comments on the US, Answer to Question 24  
 
93. Argentina would note that access by a fore ign respondent's legal counsel to confidential 
documents under an APO does not discharge US obliga tions under Article 6.5.1.  Article 6.5.1 uses 
plain language:  "The authorities shall require inter ested parties providing confidential information to 
furnish non-confidential summaries thereof."  If the dr afters of the Agreement wanted to provide that 
access by counsel would excuse a Member from comply ing with this clear obligation, they could 
easily have provided for that.  They did not do so. 
 
94. Moreover, even assuming arguendo  that access by counsel could constitute a form of 
compliance with Article 6.5.1, this access would have to be granted in a manner that fulfils the due 
process purpose of this provision.  Indeed, the very ne xt sentence of Article 6.5.1 states that:  "These 
summaries shall be in sufficient detail to permit a reasonable understanding of the substance of the 
information submitted in confidence." 
 
95. That "reasonable understanding," in turn, is requi red to enable the res ponding parties to assert 
their due process rights under the Agreement.  In  the present case, Siderca's legal counsel obtained 
copies of the proprietary documents identif ied in the Section 129 Determination, only after the 
Determination had been issued.  Providing coun sel access to confidential information in this ex post 
facto manner serves no purpose, and obviously renders meaningless the due process intent of 
Article 6.5.1. 
 
                                                      
69 US Answers to Panel Questions, 24 July 2006, para. 85. 
70 US Answers to Panel Questions, 24 July 2006, para. 86. WT/DS268/RW 
Page E-104  
 
  Argentina's Comments on US Answer to Question 26(a)
 
 
96. The response by the United States in 26(a) is , again, filled with inaccurate statements and 
factual assertions that simply have no basis in the Section 129 proceeding.  For example: 
 
• The United States correctly states that it c onsidered the fact that non-OCTG costs 
were significantly higher for OCTG products.71  The United States then indicates:  
"this was an unexpected result because Sider ca had been a large producer of standard 
line pipe – a lower value-added product  – and thus these non-OCTG costs should 
have been lower."72  This statement again confirms that the Department was acting on 
assumptions and intuition about what Siderca' s costs should show, without any factual 
basis.  As Siderca has explained in its written submissions to the Panel and in the 
substantive meeting of the parties, there is nothing wrong with the notion that non-
OCTG products have a higher cost than OCTG .  To the extent that the USDOC 
expected that it should always be the case, it was simply wrong.   
 
• The United States adds to the mistake by asser ting now new facts which also were not 
developed during the Section 129 proceeding.  Siderca is not a large producer of 
standard line pipe ,73 and there is no support in the record of the Section 129 
proceeding that it is.  As the Department must know, Siderca is a producer of seamless tubular products , and the market for seamless standard pipe  is extremely 
small.  As Argentina pointed out in its first written submission, seamless standard 
pipe is not a high-demand product, and it is  inconceivable that anyone who knows the 
tubular products market would assert that  Siderca produces a high volume of this 
product.  In any event, there is no factual b asis whatsoever for this statement, and the 
United States continues to disregard Arge ntina's rebuttal of this specific point.
74 
 
• The United States also asserts that USDOC  found that "Siderca had reported lower 
costs for [an alloy product than for the corresponding carbon product].  That is a result that should not occur."
75  Again, the comment demonstrates what the 
Department believes "should" occur, without any factual basis whatsoever.  Argentina 
has explained before to this Panel in it s written submissions that making decisions on 
the basis of these untested assumptions is directly contrary to the Article 11.3 
obligation, and to the due process requirements of Article 6.  The Argentine exporters 
never knew that USDOC expected that alloy products would always be more expensive to produce than carbon products.  In fact, as Argentina has argued, and as Siderca could have explained in the c ourse of the proceeding had it known this 
comparison was being contemplated, much depends on the product mix.  For example, within the ten categories, OCTG with a small outside diameter would 
generally require more machine time than OCTG with a large outside diameter.  
Therefore, the per ton processing costs of  the smaller product would generally be 
much higher than the per ton processing costs of the larger product.  If the small product is carbon, while the larger produc t is alloy, the smaller carbon product may 
have a higher per ton production cost than the larger alloy product because the 
                                                     
 
71 US Answers to Panel Questions, 24 July 2006, para. 90, first sentence. 
72 US Answers to Panel Questions, 24 July 2006, para. 90, second sentence. 
73 The reference to "standard line pipe" is ambiguous.  There is "standard pipe" and there is "line pipe", 
but Argentina and Siderca are unaware of which the United States means when it says "standard line pipe."  
Again, there are no facts on the record to support the proposition, regardless of what the United States meant by 
this statement.  
74 See Argentina's First Submission, para. 91 and note 71. 
75 US Answers to Panel Questions, 24 July 2006, para. 90.  WT/DS268/RW 
 Page E-105 
 
 
  additional processing costs per ton due to the size of the product might offset the 
higher material cost resulting from the use of the alloys in the larger product.  Again, 
this explanation should have occurred in  the Section 129 proceeding; it did not 
because Siderca did not know that the USDOC was performing these comparisons and measuring the costs against certain unexplained, unrevealed "assumptions."   
 
• The United States then offers its own price comparison, selecting March 1998, and 
concluding that the price of carbon seamless  casing reported in Preston Pipe that 
month was $192 per ton less than then alloy seamless casing during the same month.  But, we already know that the Preston Pipe does not distinguish between end finishes, 
and that end finishes affect the price and cost of a product.  And, the United States 
also has admitted that the USDOC could not know the effect of transportation costs in 
these prices, as that would depend on the mix of imported and domestic mill shipments in the averages at any particular time.  Therefore, the price difference that 
the United States calculates establishes not hing more than the following:  In the 
month of March 1998, for the mix of products sold as carbon seamless casing and 
alloy seamless casing, both with various,  unknown end finishings, sizes, weights, 
lengths, and freight costs, the average pr ice difference of the two groupings was 
$192/ton.  Attempting to infer from observati on that alloying products will always be 
more expensive than carbon products to pr oduce is highly suspect and would lead to 
inaccurate conclusions. 
 
• The Department concludes with a statement, "Regardless of whether the data is 
reviewed on a broader level or a more specific level, the costs did not reflect the reality of OCTG production."  This conclu sory statement reveals the problems with 
the two comparisons performed by the Depa rtment of Commerce.  The Department 
considered itself to be in a better position to know the "reality of OCTG production" 
than the producers.  Therefore, it made assumptions (some demonstrably incorrect) 
and made decisions about the reliability of data based on those assumptions.  That is 
not consistent with the obligation of Artic le 11.3 or the due process obligations of 
Article 6. 
 97. Finally, in paragraph 91, the United States observes that in some months the difference 
between the costs of alloy and carbon products are ve ry small, even when co mpared with the same 
end finishing.  Again, there is no evidence from the Section 129 Determination that USDOC ever 
performed this comparison.  In fact, the documents show that it did not:  the Department calculated 
weighted averages of the threaded and plain end pro ducts before performing the comparisons.  In any 
event, the size of the difference in any particul ar month will depend on the precise product mix within 
the groupings.  End finishes and the steel grade used  are two of the factors, but as Argentina has 
consistently explained, other factors, such as out side diameter, wall thickne ss, range, all affect the 
specific costs.  In the end, it is the Department that is making the assumption that alloy products are 
always more expensive than carbon products; it cannot  criticize exporters for showing that, in any 
given month, the cost of the products being reported do not conform to USDOC's untested assumptions. 
 
Argentina's Comments on US Answer to Questions 26(d)-(f)
 
 
98. In subparts (d)-(f), the Panel asks specific qu estions to the United States regarding the 
comparisons performed in the Section 129 Determinati on.  Argentina refers the Panel to Argentina's 
24 July answer to Question 26(c).  In Argentina's an swer to this question, Argentina explains that 
USDOC performed two different comparisons for tw o different purposes:  (1) a comparison intended 
to test the theory that the alloy should be more expensive than the carbon product, and (2) to WT/DS268/RW 
Page E-106  
 
  determine whether Acindar was likely dumping in the past.
76  Comparison 2 is the only comparison 
involving the Preston Pipe categories.  99. In its responses to Subparts (d)-(f), the United St ates continues to blur the distinction between 
these two comparisons in the hope of making its actions sound reasonable.  For example, the 
United States explains that it requested that the pr oducers provide costs and that they distinguishing 
between plain and threaded and coupled OCTG, but  "because Commerce later found that the Preston 
data did not create discrete categories for plain- end and threaded and coupled, Commerce had to 
modify those categories when it conducted its analysis."
77  This is clearly wrong, and a mixture of the 
two comparisons.  The Preston data was irrelevant  to comparison number 1 -- i.e. , whether Siderca's 
costs were reliable, which USDOC tested by using only Siderca data.  The Preston data has nothing to 
do with comparison 1.  Clearly, the United States is mixing up the comparisons here.  100. The United States does the same thing later wh en it claims that Siderca has been taking 
different positions.  According to the United Stat es:  "Argentina currently  argues that Commerce 
should have made the comparison between carb on and alloy PE, and carbon and alloy T&C.  
However, during the underlying proceeding, Siderca argued against making such a comparison…. In rebutting Petitioners' counsel's proposed approach , Siderca then argued that Commerce make the 
comparison on a product-category level, (i.e.
, all OCTG)."78  The following should be obvious at this 
point: 
 
• Argentina's position has been that, for comparison 1 (to determine the cost 
relationship of producing carbon and alloy products), the comparison should have 
been made between product groupings with th e same end finish so as to attempt to 
isolate the effect of the steel grade factor  (to use the example in the quotation, carbon 
and alloy PE should have been compared  to carbon and alloy T&C).  Siderca's 
position in the Section 129 proceeding coul d not possibly have contradicted this 
position because USDOC never informed any of the parties that it was performing comparison 1, so that Siderca never knew that this comparison was underway. 
 
• Siderca's arguments in the Section 129 Determination against "making such a 
comparison" refer to comparison 2 – that is, trying to determine dumping by comparison at a broad product category level.   
 
• The United States is distorting the record when it states that Siderca was arguing for 
Commerce to make comparisons on a product-cat egory level.  It makes this statement 
several times in its responses to answers, evidently trying to create the impression that 
it is true.  When the Panel examines the source document for this claim (ARG-19), it 
will see that Siderca was not arguing for  this particular comparison; it was merely 
pointing out the deficiencies of the doing comparisons along the lines of the ten product categories, and arguing against  any comparisons on such a general level. 
 Argentina's Comments on the US, Answer to Questions 27 and 28
 
 
101. The US answers to the questions 27 and 28 hi ghlight the inconsistency in the US position on 
Siderca's cost information, and reveal a results or iented approach to the Section 129 Determination.  
The United States asserts that the USDOC "requested  the cost data" from the Argentine producers "to 
assist it in evaluating the companies' behaviour over the life of the order."79  Once Siderca provided 
                                                      
76 Argentina's Answers to Panel Questions, 24 July 2006, para. 137. 
77 US Answers to Panel Questions, 24 July 2006, para. 94. 
78 US Answers to Panel Questions, 24 July 2006, para. 96. 
79 US Answers to Panel Questions, 24 July 2006, para. 98.  WT/DS268/RW 
 Page E-107 
 
 
  cost information, however, and that cost inform ation generated results that USDOC did not expect, 
the USDOC rejected or (to use the US phrase, "did not consider") Siderca's information because, the 
United States asserts, "the combination of deficiencies in the cost data and Siderca's lack of shipments 
during the period of review led Commerce to make  no specific finding with regard to Siderca."80 
 102. The US position that USDOC could properly re ject/not consider Siderca's information is 
based on two factors.  First, that USDOC made no findings regarding Siderca.  Second, because an 
Article 11.3 determination is made  on "an order-wide basis," the United States implies that it already 
had a sufficient basis for its "country-wide" determina tion (the finding regarding Acindar's likely past 
dumping, and the inference arising from the volume dec line) so that it was free to disregard Siderca's 
information.
81 
 103. Argentina has provided extensive rebuttal as to the evidentiary sufficiency and WTO-
consistency of these bases for the Section 129 Determ ination.  The information provided by Siderca 
certainly was relevant to USDOC's Article 11.3 de termination.  Information provided by the major 
producer in the country is, by definition, relevant to a "country-wide" determination of whether future 
exports are likely to be dumped.  104. Siderca provided both cost information in response to the USDOC's questions, and 
information regarding its comme rcial and production operations fro m its financial statements.
82  The 
cost data was germane because it is the informat ion that the USDOC chose to develop.  That 
information was necessarily part of the evidentiary basis that the USDOC chose to develop to make 
its Section 129 Determination.  The cost data is the information requested by the USDOC and Siderca 
provided information to the best of its ability, a fact  which has not been disputed.  In addition, Siderca 
explained to the USDOC that the data supported the view that Siderca would not be likely to dump in 
the future, as it showed that Siderca had achieved cer tain efficiencies even in difficult market times 
and was able to sell its products at above its cost of production.83  In other words, this was positive 
evidence that the major Argentine pro ducer was able to sell at prices th at exceeded its costs, and that 
its production efficiency had increased throughout the sunset period.  
105. Simply because Siderca's information is not what USDOC expected does not mean that it can 
be disregarded, or that it is not germane to the aut hority's determination.  Of course, if the information 
is inaccurate, an authority could be excused from cons idering the information.  But, inaccuracy of the 
data is something that needs to be demonstrated , which did not occur in this case for the reasons 
explained.  Similarly also relevant was the othe r information that Siderca provided (commercial and 
production information based on its fi nancial statements).  This information provided the context for 
understanding the volume decrease (which was not rela ted to an inability to ship without dumping), 
and also contained information that contradicted the USDOC's finding that the record contained no 
information of a turnaround in the OCTG market.
84 
 106. In the end, as demonstrated by the US answers and the bases underlying the Section 129 
Determination, the US position can be reduced to  the following point:  there is no positive evidence 
that Siderca, the major Argentine OCTG producer, was dumping or would be likely to dump.   In the event that the authority can find no positive evid ence with respect to the major producer, the 
obligation of Article 11.3 is not satisfied when the authority simply asserts that it will make "no 
finding."  In such a case, Article 11.3 requires termination of the measure because the conditions 
                                                     
 
80 US Answers to Panel Questions, 24 July 2006, para. 99. 
81 US First Submission, para. 44. 
82 Siderca's Response to Questionnaire (ARG-15). 
83 Siderca's Response to Questionn aire at pages 2-10 (ARG-15). 
84 Argentina's First Submission, para. 99 (referring to USDOC Section 129 Determination (ARG-16) 
at 9-10). WT/DS268/RW 
Page E-108  
 
  necessary for continuing the measure on the basis of  a determination supported by positive evidence 
have not been satisfied.  
Argentina's Comments on US Answer to Question 30
 
 
107. The United States makes the incredible asserti on that Siderca's cost information "was, by 
Siderca's own characterization, not verifiable w ithin the meaning of paragraph 3 of Annex II."85  
Argentina has already explained that Siderca was in structed to provide verifiable data, and that 
Siderca did so.  In fact, the Department requested a reconciliation of the cost data to the financial 
statements, and Siderca reconciled that cost data to  the financial statements of each year during the 
period of review.86  Siderca also explained in its response to criticisms by one of the representatives of 
the US industry that the reconciliation had been prepared so that it would tie to the financial 
statements of the company for each year.87  Thus, it is simply wrong for the Department to say that 
this information was not verifiable, or that Siderca had characterized it as such.  
108. The United States also repeats it s statement that the costs "did not reflect the reality of OCTG 
production."
88  This is essentially an admission that the United States continues to rely on assumptions 
about the "reality of OCTG production" rather than develop information that could be debated by the 
parties, who are the experts in OCTG production.  Finally, the United States ends with the incredible 
statement that "while Commerce could have veri fied the 2005 data, verification would not have 
changed the end result:  Siderca's extrapolation did not  accurately reflect the cost for 1995 to 2000."  
It is hard to imagine a statement more revealing of  pre-judgment.  In fact, all of the cost data was 
verifiable.  A statement by the United States that verification would not have mattered because it would not have changed USDOC's preconceived notions  is not an objective assessment of the record.  
In fact, the verification could have shown that the USDOC was incorrect in its assumptions. 
 
Argentina's Comments on the US, Answer to Questions 31 (a) and (b)
 
 109. The United States continues to assert that "A nnex II is not relevant to Commerce's Section 
129 Determination because Commerce did not use 'facts available' with respect to Siderca – it made no determination with respect to Siderca."
89  The Panel should reject the US position. 
 
110. The United States seeks to elevate form over subs tance in an effort to avoid the disciplines of 
Article 6.8 and Annex II.  However, the fact th at the United States did not use the phrase "facts 
available" cannot be dispositive in this case.  Si milarly unavailing are US statements that USDOC 
simply did "not consider" Siderca's, or Sider ca's information was not "germane" or that USDOC 
"made no determination with respect to Siderca."  None of these efforts to cloak USDOC's failure to 
apply the disciplines of Article 6.8 and Annex II should convince the Panel otherwise. 
 111. There is no textual support for a narrow reading of the Agreement where Article 6.8 and Annex II would apply only to information that supports the conclusions of the investigating 
authorities, but not to information that contradicts or detracts from its conclusions. 
 
112. In this case, there is no basis to debate th e applicability of paragra ph 3 of Annex II.  This 
provision requires the administering authority "take into account" for purposes of its determination 
"all information which is verifiable , which is appropriately submitted so that it can be used in the 
investigation without undue difficulties."  The cost information submitted by Siderca was "verifiable" 
                                                     
 
85 US Answers to Panel Questions, 24 July 2006, para. 106. 
86 See ARG-15, Annex 5. 
87 See ARG-29, pages 4-5. 
88 US Answers to Panel Questions, 24 July 2006, para. 106. 
89 US Answers to Panel Questions, 24 July 2006, para. 108.  WT/DS268/RW 
 Page E-109 
 
 
  within the meaning of paragraph 3.  The inform ation provided by Siderca was verifiable, and was 
appropriately submitted.  Siderca's letter to  the USDOC, dated 14 December 2006, page 4, 
(ARG-29), confirms that Siderca was fully prepared to  have its cost data verified and that the "data 
has been reconstructed using cost reports from th e same production lines and cost centres used to 
produce OCTG during the period.  Information on the cost of operating the lines during the 1995-
2000 period is available, was used by Siderca, and would be available for verification if the 
Department so chose.  The Department indicated in  its questionnaire that Siderca should use verifiable 
data, and Siderca confirms that it heeded this advice."  
113. The USDOC did not use Siderca's information on the basis of purported "inconsistencies" and 
"methodological discrepancies."  USDOC did so without asking Siderca to clarify these purported problems or without giving Siderca an opportunity to remedy the purported deficiencies.  Moreover, 
Argentina has demonstrated that the Department's purported substan tive rationale for rejecting the 
cost data is flawed and that USDOC could have read ily used Siderca's cost in formation in the Section 
129 proceeding without "undue difficulties."  Con sequently, the USDOC was therefore required under 
paragraph 3 of Annex II to take su ch information into account in its  Section 129 determination, but it 
failed to do so.  As the Panel clarified in US – Steel Plate from India , a decision by an administering 
authority to reject information provided by an ex porter, where that decision "lacks a valid basis under 
paragraph 3 of Annex II of the AD Agreement," will result in an violation of the requirements of 
Article 6.8 and para graph 3 of Annex II.
90 
 Argentina's Comments on the US, Answer to Questions 32(a) and (b)
 
 
114. The US response to this question follows the same pattern that "Annex II is not applicable," 
that USDOC "did not make any finding regarding Si derca on the basis of 'facts available'" and that 
USDOC was under "no obligation to inform Siderca" that its cost information would not be used.91 
 115. Argentina invites the Panel to review Arge ntina's comments above re garding the US answer 
to Question 31, which are equally relevant fo r purposes of the US answers to question 32. 
 116. In addition, Argentina would address specifically  the obligations of paragraph 6 of Annex II, 
which was the subject of the Panel's question and which the United States did not address.  In the 
circumstances of this case, the USDOC acted incons istently with US obliga tions under the provisions 
of paragraph 6 of Annex II. 
 
117. Central to the Panel's finding of a violati on of Article 6.8 and Annex II, paragraph 6 in Egypt 
– Rebar from Turkey , was the investigating authority's failure to inform the respondent parties of 
certain deficiencies and provide them with a chance to  provide clarification or further explanations.  
The Panel concluded that "Egypt violated Article 6. 8 and Annex II, paragraph 6, in respect of [the 
respondent exporters], because the [investigating au thority], having identified to these respondents the 
information "necessary" to verify their cost data, and having received that information, nevertheless 
found that the respondents had failed to provide "necessary information."
92  The Panel in that case 
faulted the investigating authority because it did no t "inform these companies of this finding and did 
not give them an opportunity to  provide further explanations." 
 118. The circumstances of USDOC's Section 129 pr oceeding and its treatment of Siderca's cost 
information are no different.  USDOC clearly was unde r an obligation to inform Siderca of the fact 
that its cost information would not be used  by the USDOC for purposes of the Section 129 
Determination. 
                                                     
 
90 Panel Report, US – Steel Plate from India , WT/DS206/R, para. 7.79. 
91 US Answers to Panel Questions, 24 July 2006, para. 112. 
92 Panel Report, Egypt – Rebar from Turkey , WT/DS211, para. 7.266.  WT/DS268/RW 
Page E-110  
 
   
119. The conduct of USDOC is especially troubling given that Siderca attempted to provide the 
data as it was requested by the USDOC.  If US DOC had concerns regarding the information 
submitted by Siderca, USDOC was required to provi de Siderca with an opportunity to provide 
comments as to why the information should not de disregarded by the USDOC.  This opportunity 
should have been available to Siderca prior to th e issuance of its Section 129 Determination, and the 
USDOC file memoranda that contained the anal ysis and information regarding the purported 
"inconsistencies" and "m ethodological discrepancies. 
  WT/DS268/RW 
 Page E-111 
 
 
  ANNEX E-4 
 
COMMENTS OF THE UNTIED STATES ON ARGENTINA'S 
ANSWERS TO THE QUESTIONS FROM 
THE PANEL TO THE PARTIES 
 
WAIVER PROVISIONS  
 
  Q1. The Panel notes that Argentina argues, and the United States does not contest, that the 
US law requires the USDOC to make its ultimate sun set determinations on an order-wide basis.  
Please explain whether this is the case and, if so, cite the relevant provisions of the US law 
(including regulations and/or policy provisions) which require the US investigating authorities to make their sunset determinations on an  order-wide basis and provide copies thereof.  
 
1. Rather than answer the question posed by th e Panel, Argentina argues that the United States 
has failed to bring its statutory and regulatory wa iver provisions into conformity with the DSB's 
recommendations and rulings.  As the United St ates has previously explained, Commerce's 
modification of its sunset regulations eliminates the possibility that Commerce's order-wide likelihood 
determinations would be based on assumptions a bout likelihood of continuation or recurrence of 
dumping due to respondent interested parties' waiver of participation in sunset reviews.
1 
 2. Argentina's interpretation of section 751(c )(4)(B) of the Tariff Act – that the statute 
"mandates  a certain outcome" – is simply incorrect.
2  The only action required by section 751(c)(4) of 
the Tariff Act is that Commerce make an affirmative company-specific likelihood finding as a 
consequence of  a party choosing to submit a waiver – the contents of which are prescribed by the 
sunset regulations.  Specifically, section 351.218(d)(2)( ii) of the sunset regulations provides that a 
party choosing to submit a waiver must include a stat ement that it would be likely to dump if the order 
were revoked.  Thus, a company-specific likeli hood finding under section 751(c)(4)(B) of the Tariff 
Act would only be a consequence of a party's admi ssion that it is likely to dump if the order were 
revoked. 
 
3. Contrary to Argentina's assertions, failure of respondent interested parties to participate in a 
sunset review would not trigger section 751(c)(4)(B) of the Tariff Act.  As the United States previously noted, since the 2005 Sunset Re gulations went into effect Commerce has not made 
findings of waiver or company-specific likelihood in cases where respondent interested parties failed 
to participate in a sunset review.
3 
 4. Finally, Argentina's arguments concerning the interpretation of section 751(c)(4) of the Tariff 
Act are contrary to the findings of the Panel in th e original proceeding with respect to the operation of 
the statutory and regulatory waiver provisions.
4  Argentina is asking the Panel in this Article 21.5 
proceeding to make a factual finding that would contra dict factual findings made in the original phase 
of this dispute.  That is not th e Panel's role in this Article 21.5 compliance proceeding.  Argentina has 
                                                      
1 See US First Written Submission, paras. 16-21; US Second Written Submission, paras. 12-19; 
US Answers to Questions from the Panel, paras. 2-24; and 2005 Sunset Regulations, 70 FR at 62062-62063 
(Exhibit ARG-12) 
2 Argentina Answers to Questions from the Panel, para. 3 (emphasis in original). 
3 US Answers to Questions from the Panel, paras. 12 and 18. 
4 See, e.g.,  US Second Written Submission, para. 17, quoting the Panel Report, paras. 7.84-7.85. WT/DS268/RW 
Page E-112  
 
  failed to demonstrate that amendment of the re gulatory waiver provisions fails to bring the 
US measure into conformity with the DSB's recommendations and rulings.  
Q2. The Panel notes Argentina's assertion, in paragraph 156 of its Second Written 
Submission, that the current US law directs the USDOC to find likelihood for companies that 
"elect not to participate in USDOC's sunset review, but also does not file an affirmative 
statement of waiver and an admission that it is likely to dump".  The Panel also notes Argentina's statement in paragraph 83 of its or al submission that the Tariff Act directs the 
USDOC to find likelihood for exporters that do not participate and that do not file a statement 
of waiver either.  Finally, the Panel notes the US ' statement in paragraphs 5 and 8 of its oral 
submission that "deemed waivers" have no w disappeared following the deletion of 
Section 351.218(d)(2)(iii) of the Regulations.   (a) Is Argentina challenging the US implementation of recommendations and 
rulings relating to "deemed waivers"?  Should the Panel understand Argentina's 
assertion to be that the so-called "deemed  waiver" provisions of the US law have 
not been repealed, or properly amended, by the United States in the context of implementing the DSB's recommendations and rulings in this case?  Please 
elaborate.  
 
5. Argentina argues that the Panel should consider  how the US statutory and regulatory waiver 
provisions operate in order to determine whethe r the United States has brought its measure into 
conformity with the DSB's recommendations and ruli ngs.  In its original report, the Panel already 
addressed how the US statutory and regu latory waiver provisions operate. 
 6. Rather than demonstrate how the United States has failed to bring its measure into conformity 
with the DSB's recommendations and rulings – pr esumably because it is unable to do so – Argentina 
chooses to mischaracterize the terms and operation of section 751(c)(4) of the Tariff Act.  The terms 
of the statute simply do not direct a company-specific finding of likelihood for any respondent interested party that fails to participate in a sunset review.
5  Moreover, the scope of the waiver 
provisions in the regulations is now simply coterminous with the scope of the statute.6  Argentina's 
suggestion to the contrary is fallacious and premis ed upon its incorrect interpretation of the plain 
meaning of the statute.7 
 7. Finally, the fact that the statute direct s Commerce to make a company-specific likelihood 
finding for a company that files a waiver statement does not mean, ipso facto as Argentina contends,
8 
that Commerce would disregard other, contrary r ecord evidence in reaching its ultimate order-wide 
likelihood determination.  As previously explained, while Commerce would consider a company-
specific likelihood finding in making its order-wide li kelihood determination, the relevance of such a 
company-specific finding to the ultimate sunset de termination always would depend on the facts on 
the administrative record in that sunset review.9  The statute does not require Commerce to find 
likelihood in its ultimate order-wide determination ju st because a company elects not to participate in 
the sunset review. 
 
 (b) If not, would it be an accurate charac terization of Argentina's claim to stipulate 
that Argentina is only taking issue with the so-called "explicit waiver" 
                                                      
5 See, e.g.,  US Answers to Questions from the Panel, paras. 10-12. 
6 See US Answers to Questions from the Panel, paras. 2-9, 21-24. 
7 See Argentina Answers to Questions from the Panel,  para. 11 (implying that Commerce is attempting 
to "override" the statute through modification of its regulations). 
8 Argentina Answers to Questions from the Panel, para. 13. 
9 See US Answers to Questions from the Panel, paras. 13-14, 19-20.  WT/DS268/RW 
 Page E-113 
 
 
  provisions of the US law in these Article 21.5 DSU proceedings?  If so, would 
Argentina agree that the current US law does not contain any provision that deems exporters to have waived their righ t to participate in sunset reviews for 
failure to provide a full substantive resp onse to the USDOC's questionnaire or 
for any other reason?  Please elaborate.  
 
8. Argentina's interpretation of the terms of section 751(c)(4) of the Tariff Act – including the 
phrase "elect not to participate" in subparagraph "(A) " is incorrect.  "Election," as contemplated by the 
statute, means taking affirmative action to signal that a party is voluntarily choosing to waive its 
participation, i.e., by submitting a waiver to Commerce.  Th e Statement of Administrative Action – an 
authoritative interpretive tool for the statute – confirms this reading of the statute: 
 
If Commerce receives such a waiver , Commerce will conclude that revocation ... 
would be likely to lead to continuation or  recurrence of dumping ... with respect to 
the submitter .
10  
 
 Therefore, contrary to Argentina's contenti on, the terms of the statute do not direct a 
company-specific finding of likelihood for respondent interested parties that fail to participate at all in a sunset review.
11 
 9. Argentina also is wrong that application of sec tion 751(c)(4)(B) of the Tariff Act, triggered by 
filing a waiver statement and resulting in a company-specific  finding of likelihood, is inconsistent 
with Article 11.3 of the AD Agreement.
12  As the Appellate Body recognized, 
 
[I]t [is] neither necessary nor relevant ... to draw a conclusion as to the WTO-consistency of the company-specific  determinations resulting from the waiver 
provisions.  As we have observed, the releva nt inquiry in this dispute is whether the 
order-wide  likelihood determination w ould be rendered inconsis tent with Article 11.3 
by virtue of the operation of the waiver provisions.
13 
 10. Thus, contrary to Argentina's assertion, a company-specific finding of likelihood in and of itself cannot violate Article 11.3.  Moreover, Ar gentina has failed to demonstrate how Commerce's 
ultimate order-wide likelihood determination is rende red inconsistent with Article 11.3 because there 
is a possibility it might, in part, be based on a company-specific likelihood determination premised 
upon a party's own statement that it is likely to du mp if the order were revoked.  As previously 
explained, in reaching its ultimate order-wide lik elihood determination Commerce would consider all 
evidence and argument on the administrative record.  The relevance of a company-specific finding to 
the ultimate sunset determination always would de pend on the facts on the record in that sunset 
review.
14  The statute does not require Commerce to  find likelihood in its ultimate order-wide 
determination just because a company elects not  to participate in the sunset review. 
 11. Argentina's interpretation of section 751(c)(4) of  the Tariff Act is contrary to the original 
findings of the Panel with respect to the operation of the statutory and regulatory waiver provisions.
15  
The Panel in this Article 21.5 compliance proceedi ng need not, and should not, revisit this finding. 
 
                                                      
10 SAA at 881 (emphasis added) (Exhibit US-12). 
11 Argentina Answers to Questions from the Panel, para. 16. 
12 Argentina Answers to Questions from the Panel, para. 15. 
13 Appellate Body Report, para. 232 (emphasis in original). 
14 See US Answers to Questions from the Panel, paras. 13-14, 19-20. 
15 See, e.g.,  US Second Written Submission, para. 17, quoting the Panel Report, paras. 7.84-7.85. WT/DS268/RW 
Page E-114  
 
  Q7. Under what circumstances would a signed  waiver statement constitute a sufficient 
evidentiary basis for an affirmative likelihood  determination?  Would your response depend on 
the circumstances of a given sunset review?  For example, would your response differ in relation to: (i) a review in which the only exporter subm its a signed waiver statement; (ii) a review in 
which, of the 20 exporters involved, 10 submit a signed waiver statement and 10 participate 
cooperatively; (iii) a review in which, of the 20 exporters involved, 1 submits a signed waiver 
statement and 19 remain silent?    How would the company-specific conclusions of likelihood with respect to exporters that waive their right to  participate (by signing a statement of waiver) 
in these scenarios be reflected in an ultimate order-wide determination?  
 12. As Argentina recognizes, Commerce will ma ke a company-specific likelihood finding as a 
consequence of  a party choosing to submit a waiver – the contents of which are prescribed by the 
sunset regulations.  Specifically, section 351.218(d)(2)( ii) of the sunset regulations provides that a 
party choosing to submit a waiver must include a stat ement that it would be likely to dump if the order 
were revoked.  We also agree with Argentina that  the probative value of a company-specific finding 
relative to the ultimate sunset determination can va ry and would depend on the particular facts on the 
record in that sunset review.
16 
 13. In the underlying proceeding, the Appellate Body recognized that the relevant question with 
regard to Commerce's sunset review is whether the order-wide  likelihood determina tion is consistent 
with Article 11.3 of the AD Agreement.  A compan y-specific likelihood finding would be relevant 
only to the extent that it "tainted" the ultimate or der-wide determination.  As the Appellate Body 
stated,  
[I]t [is] neither necessary nor relevant ... to draw a conclusion as to the WTO-consistency of the company-specific  determinations resulting from the waiver 
provisions.  As we have observed, the releva nt inquiry in this dispute is whether the 
order-wide  likelihood determination w ould be rendered inconsis tent with Article 11.3 
by virtue of the operation of the waiver provisions.
17 
 Thus, contrary to Argentina's assertion, a comp any-specific finding of likelihood in and of itself 
cannot breach Article 11.3. 
 
14. Moreover, the adverse finding in the underlyi ng dispute was that company-specific likelihood 
findings were based on an assumption , rather than on record evidence.  Commerce's amended sunset 
regulations eliminate the possibility that a comp any-specific likelihood finding will be based on an 
assumption. 
 
15. Argentina's arguments in this compliance pro ceeding fail to consider or address the changes 
to Commerce's sunset regulations.  Specifically, Argentina has failed to demonstrate how Commerce's 
ultimate order-wide likelihood determination is rende red inconsistent with Article 11.3 because there 
is a possibility it might, in part, be based on a company-specific likelihood determination premised 
upon a party's own statement that it is likely to du mp if the order were revoked.  As previously 
explained, in reaching its ultimate order-wide lik elihood determination Commerce would consider all 
evidence and argument on the administrative record.  Therefore, the relevance of a company-specific 
finding to the ultimate sunset determination always  would depend on the facts on the record in that 
sunset review.
18  No assumption is implicated. 
 
                                                      
16 Argentina Answers to Questions from the Panel, para. 19. 
17 Appellate Body Report, para. 232 (emphasis in original). 
18 See US Answers to Questions from the Panel, paras. 13-14, 19-20.  WT/DS268/RW 
 Page E-115 
 
 
  Q8. The Panel notes that Section 751 (c)(4) of  the Tariff Act does not define the term 
"waiver".  The Panel also notes that Section 3 51.218(2)(ii) of the Regulations states that a 
statement of waiver "must include a statement i ndicating that the respondent is likely to 
dump." 
 
 Can this, in your view, be interpreted to mean that the Regulations nullify, or limit the scope of, the Statute in so far as the Statute refers to waiver. 
 
16. Again, Argentina's interpretation of the te rms and operation of section 751(c)(4) of the Tariff 
Act  is incorrect.  Commerce has not issued a regulati on that is inconsistent with the statute.  Rather, 
as previously demonstrated, the scope of the 2005 regulatory waiver provisions now is coterminous 
with the scope of the statute.
19  Specifically, section 751(c)(4) of the Tariff Act directs Commerce to 
make an affirmative company-specific likelihoo d finding as a consequence of a party choosing to 
submit a waiver.  The regulations prescribe the content of such waivers.  Contrary to Argentina's 
contention, the terms of the statute do not direct a company-specific finding of likelihood for a 
respondent interested party that fails to participate in a sunset review.20 As previously noted, since the 
2005 Sunset Regulations went into effect Commerce has not made findings of waiver or company-
specific likelihood in cases where respondent interested  parties failed to participate in a sunset 
review.21 
 
Q9. The Panel notes Argentina's arguments re garding the new factual basis developed by 
the USDOC in its Section 129 Determination.  Is it Argentina's view that Article 11.3 of the 
Anti-dumping Agreement ("Agreement") precludes an investigating authority from developing new facts in order to comply with the DS B recommendations and rulings regarding the 
inadequacy of the factual basis of its sunset de terminations?  Please elaborate on the temporal 
and substantive considerations involved in gath ering "new facts" in light of the notion of 
implementation of the DSB recommendation s and rulings embodied, among others, in 
Articles 19, 21, and 22 of the Dispute Settlement Understanding ("DSU").  How should an investigating authority accommodate the "p rospective nature" of sunset reviews under 
Article 11.3 in the process of gathering "new facts" in the course of implementation? 
 
17. Argentina reiterates its assertion that Artic les 11.3 and 11.4 somehow limit an investigating 
authority from collecting new facts in the course of  implementing the recommendations and rulings of 
the DSB.  Indeed, Argentina now argues that an investigating authority need not only initiate its review prior the expiry of the five-year annivers ary of the imposition of the order, but that the 
investigating authority must also "gather the necess ary positive evidence" prior to the expiry of the 
five-year period.
22  Articles 11.3 and 11.4 plainly state that an investigating authority must initiate  a 
review prior to the expiry of the five-year pe riod and that such a review should "normally" be 
completed within 12 months.  Neither article addresses the issue of "gathering facts".  18. Argentina also misunderstands the relevance of the provisions of the DSU identified in the 
question.  These provisions highlight that ther e are many possible means to implement the 
recommendations and rulings of the DSB, and, the m eans of implementation are left to the discretion 
of the implementing Member.  Thus, Article 19.1 re quires a panel to recommend that a Member bring 
its measure into conformity with th e agreement in question, but a panel may suggest  ways in which 
the Member could implement the recommendations.  Article 21.3 recognizes that it may be 
impracticable for a Member to comply immediatel y with the recommendations and rulings and thus 
                                                     
 
19 See US Answers to Questions from the Panel, paras. 2-9, 21-24. 
20 See, e.g.,  US Answers to Questions from the Panel, paras. 10-12. 
21 US Answers to Questions from the Panel, paras. 12 and 18. 
22 Argentina Answers to Panel Questions, para. 25. WT/DS268/RW 
Page E-116  
 
  affords a Member a reasonable period of time in wh ich to do so.  These provisions do not restrict a 
Member's ability to collect new factual information.  19. The text of Articles 11.3 and 11.4 does not pr ovide for sunset reviews to be treated any 
differently than any other measure found to be WT O-inconsistent – in other words, Argentina's 
attempt to read the "temporal restrictions" in Articles 11.3 and 11.4 as restricting a Member's means 
of implementation is without merit.  
Q12. The Panel notes Argentina's claim regardi ng the comparison the USDOC made between 
Acindar's export prices and the average transa ction price (by weighted average value) that 
prevailed in the US market for the subject pr oduct.  The Panel also notes that the USDOC 
inferred from this comparison the conclusion th at Acindar was likely dumping in the period of 
review. 
 
 (b) The Panel notes Argentina's assertion that the USDOC ignored certain factors 
that affected this comparison, such as differences in the physical characteristics 
of the products compared, the levels of trade at which the comparison was made, 
as well as differences relating to transportation costs. 
 
  Please explain in detail and by referring  to the relevant parts of the record, 
whether any of these factors were known  to the USDOC in the Section 129 
proceedings at issue and, if so, wh ether this was taken into account. 
 
20. Argentina complains that the comparisons  Commerce made between the CBP data and 
Preston Pipe & Tube data did not take certain product characteristics into account.
23  However, 
Argentina has uniformly failed to explain how th ese comparisons could have been made on a more 
specific level given the fact that there was no record  information to do so.  Acindar never provided its 
costs – data that would have allowed Commerce to  make comparisons on a more specific level.  
Foreign producers are in control of their own in formation – Commerce cannot be penalized for the 
foreign producers' failure to reta in their own cost information. 
 21. Argentina asserts that Commerce's statemen t in the Section 129 Determination that the 
comparisons of the CBP data to the Preston Pipe & Tube data were "based on identical matches of 
these characteristics" is "factually incorrect."
24  Argentina suggests that Commerce's  statement 
implies that Commerce based its matches on end finishing.25  However, Argentina fails to inform this 
Panel that Commerce was explicitly referring to three characteristics:  
The categories which defined our product gr oupings in this determination were, of 
necessity, broad.  They do, however, reflect th ree significant characteristics that serve 
to determine price in the market ( i.e. seamless v. welded, carbon v. alloy, and casing 
v. tubing v. drill pipe).  Furthermore, we  made our comparison of Acindar's sales, 
discussed above, based on identical matches of these characteristics.
26 
 
Argentina is simply quoting part of a sentence out of context. 
 
                                                      
23 Argentina Answers to Questions from the Panel, para. 49.  
24 Argentina Answers to Questions from the Panel, para. 48.  We note that this quote is taken from page 
8 of the Section 129 determination – not page 4, as indicated by Argentina. 
25 Id. 
26 Section 129 Determination, at 8 (Exhibit ARG-16).  WT/DS268/RW 
 Page E-117 
 
 
  22. Argentina also would like this  panel to believe that end finish ing results in a price difference 
of $250/ton.27  However, a closer inspection of the US Steel price list, which was never placed on the 
record of the Section 129 proceeding, demonstrates that end finishing plays a much smaller role in 
pricing than Argentina asserts.  First, the example Argentina points to on page 11 relates to plain end, 
non-upset tubing.  Upsetting alone accounts for $150 of the price difference; and most of the market is 
casing, not tubing, and casing is mostly non-upset.  In contrast, the price difference between PE and 
T&C for casing is only $70.28  Thus, Argentina's example is not indicative of the normal pricing 
differences.  Conversely, the price for carbon casing USS 50 is $755/ton, and that for H40/K55 is $785/ton, yet the lowest grade alloy for that same  size is N80 at $955/ton and a higher grade alloy, 
P110, is $1110/ton.  Thus, the price difference be tween alloy and carbon for one size of casing can 
range from $170/ton to $355/ton.  Whether the OCTG  is alloy or carbon has a more significant impact 
on the price than whether it is PE or T&C.  23. By comparing only contemporaneous identical  matches for seamless v. welded, carbon v. 
alloy, and casing v. tubing for Acindar's sales, Commerce controlled for the factors that had the 
largest impact on the price.  As previously explai ned, had respondents been able to provide reliable 
cost data, Commerce would have been able to make  these comparisons on an even more precise basis. 
 
Q13. The Panel notes that the USDOC's Sect ion 129 Determination states that the USDOC 
did not use the cost data in Acindar's financia l statements because those data related to a 
product category that included products other th an the subject product.  The USDOC stated 
that "the inclusion of costs related to the m erchandise not subject to review would distort [the 
USDOC's] analysis."   Yet the USDOC relied on these financial statements with respect to its 
determination that the OCTG market was depressed in the period of review.  
 
(a)  Please explain, by referring to the rel evant parts of the record, the relevance of 
the financial statements of Siderca a nd Acindar for both the company-specific 
and order-wide phases of the USDOC's sunset determination in these proceedings.  More specifically, please explain whether the USDOC used these 
statements in support of its order-wide determination that dumping was likely to continue or recur should the order be revoked and where such use is reflected on the record. 
 
24. As a preliminary matter, Argentina argues th at an order-wide likelihood determination in a 
sunset review requires the Member "to develop a su fficient factual basis regarding the likely actions 
of the specific companies."
29  This is not accurate.  The Appellate  Body has recognized that "a broad 
range of factors other than import volumes and dumping margins is potentially relevant to the 
authorities' likelihood determination."30  Company-specific determinations are not necessary for an 
order-wide determination.  25. Argentina alleges that Commerce "rejected th e more specific information which showed that 
the division producing OCTG was profitable," instead relying on information showing the loss that had been generated from the general operations.
31  This is not an accurate characterization of 
Commerce's finding.  First, Commerce never "rejected" information in Acindar's financial statement.  
In fact, no party ever argued during the Secti on 129 proceeding that Aci ndar's OCTG production was 
profitable. 
                                                      
27 Argentina Answers to Questions from the Panel, para. 48. 
28 US Steel price list, at 6 (Exhibit ARG-34). 
29 Argentina Answers to Questions from the Panel, para. 52.  
30 US – Corrosion-Resistant Steel Sunset Review (AB) , para. 186. 
31 Argentina Answers to Questions from the Panel, para. 53. WT/DS268/RW 
Page E-118  
 
  26. Second, Commerce explained that the cost da ta was too broad because it failed to break out 
OCTG products from the broad category of "tubes, pipes and structural products."
32  It would not have 
been a meaningful comparison to compare that br oad of a category with the very specific importer 
data.  Further, Acindar's financial statement never showed that OCTG was profitable.  It only reported 
data on a broad product-basis and there is no way to  measure the profitability of OCTG within that 
broader grouping. 
 27. In contrast, some broader conclusions regard ing likelihood could be ga thered from Acindar's 
financial statement.  For instance, Acindar's overall operations were showing losses.  When a 
company is experiencing such losses, it is reasonabl e to conclude that the company will continue to 
sell at below market prices in the United States rather  than hold onto the inventory.  In fact, Acindar 
confirmed that this was its sales plan, by explai ning that "Acindar's strategy has been and will 
continue to be to focus on the Argentine market while using the export market to stabilize its overall 
sales volume during periods of slow down in domestic economic activity. "
33  This is exactly what 
Acindar did during the following administrative revi ew and was found to be dumping at a margin of 
60.73 per cent.  Therefore, even though the financ ial statements could not be used to make specific 
price comparisons, they did provide some informat ion on the overall financial condition of Acindar 
and the likelihood determination as to Acindar.  28. Argentina argues in its comments in the tabl e associated with paragraph 53 of its response 
that Commerce did not rely upon Acindar's financia l statements to demonstr ate Acindar's likelihood 
to dump if the order were revoked, but instead onl y relied upon them to demonstrate Acindar's likely 
past dumping.  This is incorrect.  In its Sec tion 129 Determination, Commerce explained that its 
conclusion that "Acindar was likely to continue se lling to the United States at dumped prices if the 
order were revoked" was supported by the above statement rega rding Acindar's use of the export 
market to stabilize its overall sales volume.
34  Thus, information from the financial statement was 
used to demonstrate Acindar's likelihood to dump if the order were revoked. 
 29. Further, in its chart, Argentina suggests th at Commerce relied on Siderca's financial statement 
to conclude that both companies would continue to sell at low prices after the period.  However, that 
is incorrect; the determination plainly states that  Siderca's financial statement supported Commerce's 
conclusion about the OCTG market generally – that  it would be depressed – and not that Siderca 
would continue to sell at low prices. 
 
 (b) Please explain, by referring to the relevant parts of the record, whether the 
financial statements of these two comp anies reflected the overall production 
operations of these companies or whether the data relating to the subject 
product, i.e. OCTG, could be separately identified. 
 
30. Contrary to Argentina's assertion, neither Siderca's nor Acindar's financial statements 
provided cost or sales data relating specifically to OCTG.  Though Argentina concedes that Siderca's 
financial statements have no "disaggr egation," it argues that Acindar's do.
35  However, on page F-75, 
it is clear that the information is only provided on broad terms – e.g., foreign trade; tubes, pipes, and 
                                                      
32 Section 129 Determination, at 7 (Exhibit ARG-16). 
33 Section 129 Determination, at 10-11 (Exhibit ARG-16). 
34 Section 129 Determination, at 10-11 (Exhibit ARG-16). 
35 Argentina Answers to Questions from the Panel, para. 55.  Though not asked about the extrapolated 
cost data, Siderca offers that its cost data provided the "relative volume."  As previously explained, the cost data 
Siderca provided was only an estimate and failed to factor product-mix into account.  Thus, there was no accurate information regardi ng Siderca's costs of OCTG production or the "relative volume of OCTG and non-
OCTG products."  WT/DS268/RW 
 Page E-119 
 
 
  structural products; and steel and rolled products.36  OCTG cannot be separately identified in either 
Acindar's or Siderca's financial statements.  It should be noted Argentina has not identified any 
argumentation by respondents on the record of th e Section 129 proceeding suggesting that Acindar's 
OCTG division was profitable.   (c) Please explain whether the share of  OCTG in these two companies' overall 
production operations was taken into account in making the inference on the basis of these statements that the OCTG market was depressed. 
 
31. Argentina argues that Commerce did not properly consider the overall share of OCTG 
production in these companies' operations in dete rmining whether the OCTG market was depressed.
37  
This statement ignores the fact that Commerce reviewed the experiences of US producers to confirm 
that the OCTG market was depressed.38  Even Siderca asserted that the OCTG market was depressed 
in "1999/2000."39 
 Q16. The Panel notes Argentina's assertion in pa ragraph 30 of its Oral Statement that in the 
period of review of the Section 129 Sunset Determ ination at issue, the prices of the subject 
product in the United States were significantly higher than other markets.  Please elaborate by 
referring to the relevant parts of the record of the measure at issue.  
 
32. The United States noted in its response to this  question that this information was not on the 
record of the Section 129 proceeding, and Argentina in its answer agrees.
40 
 
Q17. (a) How, if at all, did the original panel address the parties' claims and arguments 
relating to the USDOC's volume analysis? Did it exercise "judicial economy"?  
 33. The United States would simply note that it do es not seek to "take advantage" of the original 
Panel's exercise of judicial economy.  Rather, in  order to comply with the recommendations and 
rulings of the DSB in this dispute, the United States was not required to reconsider its volume analysis, given that there were no findings that the US volume analysis was inconsistent with 
US WTO obligations.  If Argentina considered that reconsideration of the volume analysis had been 
necessary to "resolve the dispute," as it apparently now does
41, then Argentina should have appealed 
the original Panel's exercise of judicial economy as having been false.42 
 
(b) What considerations should guide this Panel in addressing the parties' claims 
and arguments in these 21.5 DSU proceedings?  Would any prejudice arise to any party in the even the Panel did, or did not, address the volume analysis?  
 
34. In its answers, Argentina once again fails to  recognize that the question before the Panel is 
whether the United States implemented the recommenda tions and rulings of the DSB, and Argentina 
continues to avoid referring to the recommendations a nd rulings of the DSB.  Instead, Argentina states 
that "[i]n this compliance proceeding, the Unite d States must bring itself into compliance with 
Article 11.3 of the Anti-Dumping Agreement."
43  In fact, the question in  this compliance proceeding 
                                                      
36 Letter from US Steel, at F-75 (Exhibit ARG-27). 
37 Argentina Answers to Questions from the Panel, para. 57.   
38 US Answers to Questions from the Panel, paras. 46-50. 
39 Siderca 7 December Letter, at 7 (Exhibit ARG-19). 
40 Argentina states that this information is "not pa rt of the record of the Section 129 proceeding." 
Argentina Answers to Questions from the Panel, para. 62.   
41 Argentina Answers to Panel Questions, para. 70. 
42 See, e.g. , US Answers to Panel Questions, para. 75. 
43 Argentina Answers to Panel Questions, para. 70. WT/DS268/RW 
Page E-120  
 
  concerns the existence or consistency with a covere d agreement of measures taken to comply with the 
recommendations and rulings of the DSB.  As the United States has repeatedly noted, the Appellate 
Body in EC – Bed Linen (21.5)  clarified that not all aspects of a redetermination are "inseparable 
elements" of the measure taken to comply.
44 
 
35. As noted above, Argentina states that the Pane l has an obligation to "resolve the matter before 
it,"45 implying that a finding on the volume analysis is necessary for purposes of such resolution.  If 
so, then Argentina is implicitly asserting that the or iginal Panel exercised false judicial economy – by 
definition, failing to make findings sufficient to resolve a dispute.46  Argentina did not appeal that 
issue, despite the fact that it had an opportunity  to do so.  Insofar as the DSB recommendations and 
rulings therefore included no finding regarding th e volume analysis, Argentina is not now in a 
position to assert that the United States failed to implement any recommendation and ruling related to 
the volume analysis.  The matter before this Panel simply does not include the volume analysis.  36. Argentina asserts that it would suffer prejudice because it has "consisten tly alleged" that the 
volume inference is inconsistent with Article 11.3.
47  It is unclear just what Argentina means.  
Argentina does not explain why maki ng an allegation, consistently or otherwise, entitles a Member to 
a finding on an issue for which a panel exercised judicial economy.  37. Argentina also contends that the United Stat es can claim no prejudice because it chose to rely 
on the volume inference as a basis of its determination.
48  That approach cannot be reconciled with the 
reasoning and facts of EC – Bed Linen  (21.5) .  In Bed Linen , the panel and the Appellate Body 
considered that the EC's injury analysis was flaw ed, and to come into compliance, the EC conducted a 
new analysis of the impact of dumped imports unde r Article 3.4.  In addition, however, the EC 
incorporated its original "other factors" analysis into  its redetermination.  The EC of necessity "relied" 
on that analysis – under Article 3.5, it is impossi ble to make an affirmative injury determination 
without conducting a causation analysis, including an "oth er factors" analysis.  Yet the "other factors" 
analysis was not considered part of the measure  taken to comply because it was an aspect of the 
original determination that the EC did not change, and did not have to change, to comply with the 
recommendations and rulings of the DSB.  Therefore, whether a Member "relies" on an aspect of the original determination in its rede termination is not the question; the question is whether the Member 
had to change that aspect of the original dete rmination to comply with the recommendations and 
rulings of the DSB.  Just as the EC did not have to reconsider its "other factors" analysis, so 
Commerce did not have to reconsider the "volume analysis."  
(c) Is the USDOC's volume analysis part of  the measure taken to comply with the 
DSB recommendations and rulings for the purposes of Article 21.5 DSU?  Why 
or why not?  Would it have been possi ble for the original panel to address the 
USDOC's volume analysis?  
 
38. The United States agrees that the volume an alysis was part of the Section 129 proceeding.
49  
That does not, however, answer the question in th is Article 21.5 proceeding of whether the volume 
                                                      
44 See, e.g. , US Answers to Panel Questions, para. 71; US First Submission, para. 34; US Second 
Submission, para. 28. 
45 Argentina Answers to Panel Questions, para. 74. 
46 See Appellate Body Report, European Communities – Export Subsidies on Sugar , WT/DS265/AB/R, 
WT/DS266/AB/R, WT/DS283/AB/R, para. 335 (adopted 19 May 2005) ("In this case, the Panel's findings . . . 
were not sufficient to 'fully resolve' the dispute. . . .  This constitutes false judicial economy and legal error.") 
("EC – Sugar (AB) "). 
47 Argentina Answers to Panel Questions, para. 74. 
48 Argentina Answers to Panel Questions, para. 74. 
49 Argentina Answers to Panel Questions, para. 78.  WT/DS268/RW 
 Page E-121 
 
 
  analysis was an inseparable element of the measure  taken to comply.  If the entire redetermination 
were necessarily equivalent to th e measure taken to comply, then Bed Linen (21.5)  would have been 
decided differently.  39. Argentina considers that it addressed, in its Second Submission, the question of whether the 
volume analysis is part of the measure taken to comply.
50  However, Argentina's analysis rests on the 
erroneous premise that the volume analysis in this dispute can be distinguished from the EC's "other 
factors" analysis in Bed Linen  (21.5)  on the basis that Commerce "re lied" on its analysis, whereas the 
EC merely "confirmed" its analysis.  As noted above , the EC of necessity relied on its "other factors" 
analysis for purposes of reconsid ering its injury determination. 
 
 Please indicate the relevance, if any, of th e Appellate Body Reports in EC - Bed Linen 
(Article 21.5 - India ) and US - Softwood Lumber  IV (Article 21.5 - Canada) in your responses 
to the above questions.  
 
Q18. The Panel notes Argentina's argument that the USDOC disregarded the comments made by the Argentine exporters with regard to th e decline in the volume of imports.  The Panel 
also notes the US' argument that these comments  were not germane to the issue.  Siderca's 
response to the questionnaire to which Argentina refers in this regard, reads in relevant part: 
  Whatever the significance of a decline in export volume may be as a general matter, 
Siderca knows that, with respect to Siderca, it does not mean that the product could not be 
shipped without dumping.  The cost data (even with the limitations explained above) supports Siderca's position: Siderca is a cost-efficient producer of OCTG and could have shipped OCTG products profitably to the United States.     
 
 (b) Is there any other reference on the record that contains Argentine exporters' 
comments with regard to the decline in the volume of imports? 
 
40. Argentina's characterization that Siderca's submission presented "evidence" to explain the 
decline in import volumes is strained, at best.  At the outset, it bears repeating that Siderca's shipments 
ceased  after the order was imposed.  Siderca pr ovided no reasoned explanation as to why it stopped 
shipping entirely  after the order was imposed. 
 41. Siderca's explanation that it had "diversifi ed" its exports was, to be generous, weakly 
supported,
51 and does not, in any event, explain why Siderca stopped shipping entirely.  
Diversification does not explain why a company th at had been a significant exporter to the United 
States before the order would suddenly stop shippi ng once the order was in place – especially when 
the United States is a prime export market for OCTG.  
Q25. Please respond to the US' argument that  because no company-specific determination 
was made for Siderca, facts available were not used for this company. 
 42. Argentina has failed to demonstrate how Ar ticles 6.8 or 11.3 require a company-specific 
finding of likelihood as to each e xporter or producer.  No such requi rement exists.  The Appellate 
                                                     
 
50 Argentina Answers to Panel Questions, para. 75. 
51 Siderca's "evidence" of diversification consisted of nothing more than references to joint ventures in 
various countries.  For example, Siderca cited a Canadian joint venture with Algoma, but emphasized that the 
joint venture would use existing production facilities in Canada, rather than importing from Argentina.  
Siderca's Questionnaire Resp., Attachment 1, at 3-4 (Exhibit Arg-15). WT/DS268/RW 
Page E-122  
 
  Body also has recognized that, with respect to Ar ticle 11.3, the relevant issue is the order-wide 
determination – and not the company-specific ones.
52 
 43. Argentina has failed to explain how no finding as to Siderca is actually a finding on the basis 
of facts available.  No finding is simply that – no decision was reached as to Siderca's likelihood.  
Argentina claims Commerce used "facts available"  but did not label it as such with those "magic 
words."
53  However, Argentina has never explai ned how Commerce supposedly used "facts 
available."  44. Argentina implies that the US position is that "the avoidance of the term 'facts available'" is 
conclusive, and that simply because Commerce did not use the term in its determination neither 
Article 6.8 or Annex II apply.
54  This is not the US position.  Again, Commerce did not make a 
finding with respect to Siderca on the b asis of facts available because it made no finding with respect 
to Siderca.  Further, the United States has not hes itated to acknowledge in this proceeding that, even 
though Commerce did not use the words "facts availa ble" when using the Preston Pipe & Tube data 
for Acindar, it used alternate information from secondary sources, as provided for in Article 6.8 and 
paragraph 7 of Annex II.55 
 45. Argentina argues that the "US position rests on the flawed assumption that Article 6.8 and 
Annex II obligations apply only to information that is  used to support conclusions of the investigating 
authority."
56  The United States has not taken that position.  Rather, the US position is based on the 
language of Article 6.8, which provides that an inv estigating authority may resort to the use of facts 
available when an interested party does not provide necessary information.  It is, by its own terms, 
simply not applicable to information that is not necessary .  In this instance, Commerce considered the 
totality of the evidence on the record and conc luded that Siderca's cost information was not 
"necessary information" within the meaning of Ar ticle 6.8 because other evidence on the record 
supported the order-wide determinati on without having to make a company-specific finding regarding 
Siderca.  To interpret Article 6.8 as including all information, whether necessary or not, would read 
the word "necessary" out of that provision, and such an approach cannot be reconciled with principles 
of treaty interpretation.  46, Indeed, that the information was not "necessar y" is confirmed by the fact that Commerce did 
not use other facts in lieu of the information Siderca provided. 
 47. Argentina then asserts that if "the USDOC is goi ng to reject information . . . then the authority 
has an obligation to comply with the re quirements of Article 6.8 and Annex II."
57  Article 6.8 says 
nothing about rejecting information.  Article 6.8 only applies when a determination is made on the 
basis of facts available.  Annex II only applies if th e criteria of Article 6.8 have been met.  Because no 
facts available were used for Siderca, there wa s no obligation to inform Siderca that its cost 
information would not be used.  48. Argentina similarly gets the standard backwa rd when it argues that Article 6.8 does not apply 
unless a party is recalcitrant – and implying that it does apply if a party participates.
58  It does not 
matter how recalcitrant the parties are in a proceedi ng – Article 6.8 only applies when a decision is 
                                                      
52 Appellate Body Report, para. 232. 
53 Argentina Answers to Questions from the Panel, para. 131. 
54 Argentina Answers to Questions from the Panel, para. 127. 
55 US Second Written Submission, para. 92. 
56 Argentina Answers to Questions from the Panel, para. 129. 
57 Argentina Answers to Questions from the Panel, para. 129. 
58 Argentina Answers to Questions from the Panel, para. 133.  WT/DS268/RW 
 Page E-123 
 
 
  "made on the basis of facts available."  Thus, because there was no company-specific finding as to 
Siderca, no decision was made on the basis of f acts available and Article 6.8 does not apply. 
 49. Argentina suggests that an order-wide dete rmination necessarily means that Commerce used 
"facts available" with regard to Siderca.  Ar gentina ignores that the fact that in making its 
determination, an investigating authority engages in a weighing of the evidence, some provided by 
respondents, some provided by petitioners.  The mere  fact that a respondent submits information and 
that information is not ultimately used in making th e determination does not mean that facts available 
have been used with respect to that respondent.  In  this regard, the United St ates notes that Article 6.8 
refers not to respondent interested parties, but interested parties  more generally, including domestic 
interested parties.  Under Argentina's approach , the mere weighing of evidence would necessarily 
result in the application of facts available to someone  in every determination – either petitioner if 
respondent's information is more  probative, or respondent if pe titioner's information is more 
probative.  Q26. (b) The Panel notes Argentina's assertion,  among others, in paragraph 55 of its Oral 
Submission, that the data submitted by Siderca indicated higher costs for alloy 
products compared with casing products throughout the period of review, with 
the exception of the year 2000.  The Panel understands Argentina's argument to be that the USDOC should have compared the costs of, for example, carbon casing PE with that of alloy casing PE and carbon casing T&C with that of alloy 
casing T&C.  
 
 Is the Panel's understanding correct regarding Argentina's assertion?  
 
50. The United States recalls that Commerce had asked for respondents' costs on the level of 
T&C and PE.  The costs Siderca provided were not reliable, for the reasons already detailed, and 
Acindar declined to provide any cost information.  Therefore, Commerce had to make the comparison 
on a broader level using Preston data – wh ich does not report PE and T&C separately. 
 51. The United States notes that Argentina argues for a more specific comparison of its costs, yet 
fails to point out that these costs were allocated  based on an index from October 2005 that never 
factored in the product-mix during the period.
59  Thus, Argentina is arguing for a comparison on a 
more specific level, when its own allocation met hodology could not provide accurate costs on that 
same level.  52. Furthermore, as explained in the US res ponse to question 26(a) from the Panel, Commerce 
reviewed Siderca's costs on both a specific and aggreg ate level.  Because of the inherent flaws in the 
methodology used to allocat e costs, the costs fail ed to reflect the rea lity of OCTG production, 
regardless of how they were reviewed.  
(c) Please explain why, in your view, it wa s not proper for the USDOC to rely on the 
same grouping that Preston Publishing used for the subject product. 
 
53. Argentina argues that Commerce only performed one comparison for Siderca's data – carbon vs. alloy products.
60  As we have previously explained, the comparison between carbon and alloy was 
not the only comparison Commerce performed when assessing Siderca's data.61  Commerce looked at 
the data on a more specific level that held end -finishing constant, as well as comparing non-OCTG 
                                                      
59 Argentina Answers to Questions from the Panel, paras. 134-135. 
60 Argentina Answers to Questions from the Panel, para. 137. 
61 US Answers to Questions from the Panel, paras. 89-91. WT/DS268/RW 
Page E-124  
 
  costs to OCTG costs.  The data failed to reflect the reality of OCTG production in each of the various 
comparisons. 
 
Q30. Please explain in detail whether, in your view, paragraph 3 of Annex II justified the rejection of Siderca's cost data.  In particul ar, please explain whether the cost information 
submitted by Siderca was verifiable within the meaning of paragraph 3.  Did the USDOC take 
any steps to verify such information? 
 
54. Argentina argues that because its data was veri fiable, it could have been used without "undue 
difficulties."
62  However, Article 6.8 and Annex II are app licable only if "facts available" are used.  
The United States did not make a finding with respect  to Siderca, and therefore, Annex II is not 
applicable. 
 
55. The United States explained in its answer to th is question that the problem with Siderca's data 
is not that the application of the allo cation methodology could not be verified.63  Commerce never 
contended that Siderca applied its methodology inco rrectly; however, Commerce did consider that the 
methodology itself was flawed, resulting in costs that  did not reflect the reality of OCTG production. 
 56. Paragraph 3 contemplates a Member verifyi ng whether the information provided by the party 
accurately reflects its period sales and costs.  Siderca stated that it did not maintain its product-specific cost data and that the data provided were  extrapolated based on 2005 data.  Thus, the data 
were not verifiable within the meaning of paragra ph 3 of Annex II as it would be impossible to verify 
whether Siderca's reported costs reflected its actual period costs.  
Q31. The Panel notes the following part of  the USDOC's Section 129 Determination: 
 
Although Siderca attempted to cooperate with the Department's request for information, upon analysis  of Siderca's calculations, we have identified 
significant problems with its allocation of costs, with respect to both OCTG production and all tubular production. 
 
(a) Please explain your views about the relevance of this determination to 
the issue of whether or not Siderca acted to the best of its ability in 
submitting its cost information to the USDOC within the meaning of paragraph 5 of Annex II to the Agreement. 
 
57. Argentina argues that because Ar gentina acted to the "best of its ability" its data should have 
been used because it was "far preferable that {sic} the data ultimately relied on by USDOC."
64  The 
United States considers that Argentina must have meant that Siderca, not Argentina , is the party that 
acted to the best of its ability, in view of the fact that Siderca, not Argentina, was a respondent 
interested party in the Section 129 proceeding.  In  any event, as noted above, Annex II is not relevant 
to Commerce's Section 129 Determination with r espect to Siderca because Commerce did not use 
"facts available" with respect to Siderca – it made no determination with respec t to Siderca, nor was it 
required to make a finding.   As a result, the issue of whether Sider ca acted to the best of its ability was 
not implicated.  58. Moreover, whether or not Siderca acted to the b est of its ability is irrelevant with respect to 
Commerce's company-specific determination as to Acindar .  Acindar provided no cost information 
                                                     
 
62 Argentina Answers to Questions from the Panel, paras. 140-141. 
63 US Answers to Questions from the Panel, para. 106. 
64Argentina Answers to Questions from the Panel, para. 148.  WT/DS268/RW 
 Page E-125 
 
 
  and so Commerce relied on the best available inform ation to use as a surrogate for Acindar's normal 
value – actual US average unit values from Preston Pipe and Tube.  59. Finally, as discussed below, the fact that a pa rty may have acted to the best of its ability does 
not necessarily mean that the information it has provide d is of sufficient qualit y that the investigating 
authority is obliged to use it. 
 
(b) Please explain how ideal the cost info rmation submitted by Siderca was within 
the meaning of paragraph 5 of Annex II to the Agreement. 
 60. Argentina concedes that "though the cost da ta submitted by Siderca may have not been 
'ideal,'" it was preferable to relying on st atements in Siderca's financial statements.
65  First, Siderca's 
cost data was far from "ideal" because it was onl y an estimate, based on an extrapolation from 
October 2005 data that did not even control for f actors such as product mix.  Even had Commerce 
made a company-specific determination as to Siderc a, it could not have relied upon the extrapolated 
cost data to do so.  As explained in our answer to  question 26(a), the cost data was not reliable and did 
not reflect the reality of OCTG production.  61. The United States notes that Argentina e rroneously presumes that Commerce rejected 
Siderca's cost information and used its financial statements instead, i.e., to draw a conclusion about 
what Siderca would be likely to do if the order were revoked.  However, the cost data and the 
financial statements were considered for diffe rent purposes.  Commerce had asked for the cost 
information in its consideration of whether it could make a company-specific finding about Siderca.  
However, Commerce relied upon the financial st atements for the order-wide determination, 
buttressing Siderca's own argument that the OCTG market was depressed during the period. Therefore, the United States does not agree that Commerce rejected "probative data" and instead 
"speculated" and "relied" on "assumptions ba sed on selective reliance on Siderca's financial 
statements."  
Q32. (a)  In your view, was the USDOC under an  obligation to inform Siderca of the fact 
that its cost information would not be used as well as to give Siderca a chance to make comments as to why the information had to be used by the USDOC 
pursuant to paragraph 6 of Annex II?  If so, was the USDOC under an 
obligation to do it prior to the issuance of its Section 129 Determination? 
 
(b) Did the USDOC actually inform Siderca of this fact and give Siderca a chance to 
make comments? If so, when?  Did Siderca know that its cost data were not going 
to be used by the USDOC in its determinations? 
 
62. The following addresses both (a) and (b):  63. As detailed in its submissions, Commerce di d not make a finding regarding Siderca, and 
therefore, Commerce did not make a finding regarding Siderca on the basis of "facts available."  
Annex II is not applicable.  For that reason, Comme rce was not under an obligation to inform Siderca 
that its information was not being used, or to provi de an opportunity to provide further explanations. 
 64. The Panel's report in Egypt – Rebar from Turkey  is inapposite as it relates to a situation where 
a Member requests information that is necessary because it is calculating a company-specific margin, 
and thus, Article 6.8 is relevant.
66  In contrast, though Commerce requested Siderca's cost data, it 
                                                      
65Argentina Answers to Questions from the Panel, para. 150. 
66 Argentina Answers to Questions from the Panel, para. 152. WT/DS268/RW 
Page E-126  
 
  ultimately found it not reliable and made no comp any-specific determination as to Siderca.  
Therefore, the information was not necessary for Commerce's order-wide likelihood determination. 
 65. Argentina's citation in footnote 104 of its an swers to the Panel's questions references the 
following insightful discussion in Egypt – Rebar from Turkey  regarding data that is not sufficient even 
if the interested party has acted to the best of its ability.
67 Specifically, the Rebar panel explained that: 
 
[A]n interested party's level of effort  to submit certain information does not 
necessarily have anything to do with the substantive quality of the information 
submitted, and in any case is not the only determinant thereof.  We recall that the 
Appellate Body, in US – Hot Rolled Steel , recognized this principle (although in a 
slightly different context), stating that "parties may very well 'cooperate' to a high 
degree, even though the requested information is, ultimately, not obtained.  This is because the fact of 'cooperating' is in itself not determinative of the end result of the cooperation.
68 
 
Simply because Siderca may have acted to the b est of its ability does not require that Commerce 
utilize its cost data when that cost data was proven unreliable.   
Q33. The Panel notes Argentina's assertion that the USDOC violated paragraph 7 of 
Annex II by failing to apply special circumspection with regard to the information it took from 
secondary sources instead of the information subm itted by the Argentine companies.  Please 
explain clearly which company Argentina refers to in this regard.  Please also explain what secondary source, in Argentina's view, was used instead of the information submitted by the 
Argentine companies.  Also, please explain how exactly the USDOC failed to use the most 
appropriate information instead of the inform ation submitted by the Argentine companies.  
 
66. Argentina failed to address the Panel' s question as to what Commerce used " instead  of the 
information submitted by Argentine companies."
69  This is because no information was used "instead" 
of the information submitted by Siderca, and Acindar did not submit any cost data, so no information 
was used "instead."  
67. The United States also notes that paragraph 7 of Annex II does not contemplate requesting 
further information from interested parties.  Ra ther, paragraph 7 contemplates that investigating 
authorities have already requested informati on from the parties and are now turning to secondary 
sources,  not primary  sources.  Thus, paragraph 7 expressly not es that information in the petition may 
be used, and information from secondary sour ces may be checked against information from other  
interested parties. 
 68. Argentina argues that requesting informa tion from Acindar would provide for a "more 
appropriate comparison."   The United States w ould note that paragraph 7 does not provide for 
"appropriate comparisons."  Rather, it provides that an investigating authority may have recourse to 
secondary sources if the interested party does not provide n ecessary information.  In any event, the 
Preston Pipe and Tube data – the secondary informati on of the kind provided for in paragraph 7 – was 
reported on a broader basis than the Acindar im porter data.  The only way a "more appropriate 
comparison" could have been made would have been if Acindar had re tained and reported its costs for 
the period.  Acindar did not do so – hence the recourse to secondary sources. 
                                                     
 
67 Argentina's footnote appears to refer to a different section of Egypt – Rebar than the section 
referenced in the body of Argentina's answers. 
68 Egypt – Rebar from Turkey , para. 7.242. 
69 Emphasis added.  WT/DS268/RW 
 Page E-127 
 
 
  69. Argentina contends that use of pricing data based on a commercial publication does not 
constitute an objective exam ination of information.70  Argentina's position implies that a Member 
complying with the authorization under paragra ph 7 of Annex II to use secondary sources is per se  
failing to comply with its obligati ons under Article 11.3.  Paragraph 7 does not specify that the price 
lists must be "private," nor does it prohibit use of "commercial" price lists.  Paragraph 7 provides that 
secondary sources include information supplied by petitioners ; it is odd indeed to suggest that an 
investigating authority may rely on information su pplied by petitioners, but not on an independent 
source of information – a commercial price list.   
                                                     
 
70 Argentina Answers to Questions from the Panel, para. 156. WT/DS268/RW 
Page E-128  
 
  ANNEX E-5 
 
ANSWERS OF THE UNITED STATES TO 
ARGENTINA'S WRITTEN QUESTIONS 
 
  
Measure Taken to Comply
 
 
Q1. If USDOC only incorporated the volume infe rence from its original sunset review, why 
did USDOC ask question 8 of its questionnaire ("Did you ship any merchandise under consideration to the United States during the period 1 August 1995 through 31 July 2000?  If so, indicate the shipment volumes.")  
 
1. See  US Answer to Panel Question 18(a).   
 
Q2. The United States indicates that the volum e inference from the original sunset review 
was incorporated into the Section 129 determination.  
 
(a) Was the inference in the original sunset review based on the Sunset Policy 
Bulletin ("SPB")?  
 
(b) If yes, does the United States agree that  USDOC relied on the SPB in the Section 
129 Determination?  If not, please explain. 
 
Q3. Is the inference that USDOC draws from the volume decline a necessary part of the 
USDOC's conclusion in the Section 129 determin ation that expiry of the measure would be 
likely to lead to a continuation or recurrence of dumping?   
 
Q4. Does the affirmative "likelihood" determin ation stand without inference of likelihood 
based on the volume findings?  
 
Regarding the Volume Inference
 
 Q5. Page 11 of the 129 Determination states:   "Declining import volumes after, and 
apparently resulting from, imposition of an an tidumping duty order indicate that exporters 
would need to dump to sell at pre-order levels."   
 
 (a) What is the textual support in Article 11.3 for an investigating authority to make 
a finding based on an "apparent" link between the declining volumes and the 
dumping order? 
 
(b) Please explain how the USDOC's relian ce on an "apparent" link is consistent 
with the Appellate Body's statement in this dispute that "the investigating authority must arrive at a reasoned determination resting on a sufficient factual 
basis; it may not rely on assumptions or conjecture."  
 
(c) Please explain how the USDOC's relian ce on an "apparent" link is consistent 
with the Appellate Body's statement tha t:  "The cessation of imports in the 
second scenario and the decline in import volumes in the third scenario could well have been caused or reinforced by changes in the competitive conditions of 
the market-place or strategies of exporters, rather than by the imposition of the  WT/DS268/RW 
 Page E-129 
 
 
  duty alone.  Therefore, a case-specific analysis of the factors behind a cessation 
of imports or a decline in import volum es (when dumping is eliminated) will be 
necessary to determine that dumping w ill recur if the duty is terminated." ( US - 
Corrosion Resistant Sunset Review, DS244, AB Report , para. 177).  
 
(d) Why does the USDOC believe that declining import volumes apparently caused 
by the imposition of the order necessarily  "indicate that exporters would need to 
dump"?  
 
(e) The quoted statement in the chapeau to this question suggests to Argentina that 
USDOC found that declining import volumes were conclusive of whether 
revocation of the order would lead to continuation or recurrence of dumping.  Does the United States agree?  If not, please explain.  
 
(f) Why does USDOC focus on the exporter's ability to "sell at pre-order levels"?  
Is this required in order to obtain termination under Article 11.3?  Is the 
authority's obligation to establish "likely" dumping different if the exporters do not ship at pre-order volumes? 
 
(g) Can you identify the portion of th e Issues and Decision Memorandum from the 
original sunset determination (ARG- 8) that specifically states that: 
 
(i) USDOC could draw inferences from "declining import volumes after, 
and apparently resulting from, imposition of an antidumping duty order";  
 
  (ii) the Argentine exporters "would need to dump" upon expiry.  
 
Q6. We note that the exporter, Siderca , provided factual information in its 
30 November  2005 response (ARG-15) regarding the decline in its volume (pages 7 - 10). 
 
(a) Did USDOC consider this information? 
 
(b) Did it influence USDOC's statement that the declining import volumes 
"apparently resulted from the imposition of the antidumping duty?" If no, please explain why not. Regarding Article 11.3 and Article 11.4 Obligations 
 
2. The volume analysis is not within the scope of these proceedings.  
Q7. The United States has claimed that it is now in compliance with Article 11.3.  But, 
assuming that the DSB ultimately adopts rulin gs and recommendations that it is not, will the 
United States terminate the measure?  
 
3. As the United States is in compliance with the DSB recommendations and rulings, there is no 
basis for the assumption in the question.  In any event,  the question is not relevant to the matter before 
the Panel, whether the measure taken to comply by  the United States is consistent with the covered 
agreements.  
 
Q8. In light of the time-frames establishe d by Articles 11.3 and 11.4 (the window of 
opportunity for the administering authority to collect information to establish the evidentiary 
basis in order to make the substantive de termination), how can these requirements be WT/DS268/RW 
Page E-130  
 
  reconciled with the collection of new information by the USDOC five years later in a compliance 
proceeding?  
 
4. See US First Written Submission, paras. 28-31, and US Second Written Submission, 
paras. 20-27.  
 
Q9. If the United States believes that it ca n conduct more Section 129 determinations in the 
event of a Panel finding in this case that the Unit ed States is not in compliance, is there a limit 
on the number of such determinations that th e USDOC can make?  Please explain your answer.  
 5. The question is premised on a position not e xpressed by the United States in this proceeding. 
 
Q10. Is there a limit on the number of times that the USDOC can collect, in subsequent 
proceedings, additional evidence in order to support its original decision to continue the measure?  Please explain your answer. 
 6. This question is speculative.  
 
Q11. Assuming arguendo, that an administering authority can use new information that was 
gathered during the RPT in order to bring a WTO-inconsistent Article 11.3 determination into conformity with its WTO obligations, what ar e the consequences of the new determination 
being found to be inconsistent in an Article 21.5 proceeding?  
 
7. It is not clear what is meant by "conse quences."  The United States and Argentina have 
reached agreement on some potential proce dural consequences in that event.  See WT/DS268/14.  
 Q12. In this case, under what authority coul d the Member keep in place AD duties that are 
based on an Article 11.3 determination that has been found by a compliance panel to be an inconsistent  determination, following the expiration of the RPT?   
 
8. The question is speculative.  
 
Regarding Acindar's Information --"Likely Past Dumping"
 
 
Q13. Can you identify any circumstance in the original sunset proceeding in which the 
USDOC or the USITC asked a specific question to Acindar and Acindar did not respond?  Please consider in your answer that the USITC stated in its 2001 determination that:  "In these 
reviews, the Commission received responses from Argentine producers Siderca and Acindar (a 
producer of welded OCTG)."  (USITC Sunset Determination, footnote 113).  
 
9. As Argentina may recall, the United States prev ailed on all of its claims regarding the USITC, 
and questions regarding the USITC are therefore beyond the scope of this proceeding.  Q14. Can you identify any circumstance in the Section 129 proceeding in which the USDOC asked Acindar a specific question and Acindar did not respond?  
 
10. It is unclear what Argentina means by "sp ecific question."  However, Acindar did submit a 
questionnaire response.  See, e.g., US First Written Submission, para. 39. 
 
Q15. Why does the USITC identify and send questionnaires to the exporters, while the 
USDOC does not?  
  WT/DS268/RW 
 Page E-131 
 
 
  11. As Argentina may recall, the United States prev ailed on all of its claims regarding the USITC, 
and questions regarding the USITC proceeding are th erefore beyond the scope of this proceeding. 
 
Q16. Does the investigating authority's obligation under Article 11.3 change depending upon 
the level of participation by the exporter?  
 
12. See, e.g., US – Japan Corrosion (AB) , para. 199; US – Argentina OCTG (AB ), para. 234. 
 
Q17. The waiver provisions were applied by USDO C in the original sunset proceeding.  The 
Panel determined that the application of the wa iver provisions invalidated the factual basis of 
USDOC's determination and rendered it inconsistent with Article 11.3.   
 
13. Argentina provides no reference in support of its  proposition that the original Panel concluded 
that the waiver provisions "invalidated the factual basis" of the determination.  See US First Written 
Submission, para. 22. 
 
(a) Does the United States agree that the e ffect of Acindar's non-participation in the 
original sunset proceeding led to the USDOC's waiver determination, which has 
already been adjudicated in this Panel's review of the original 2000 sunset determination?  
 14. Commerce was not aware in 2000 that Acindar ha d failed to participate; Acindar declined to 
identify itself at that time.  
(b) Does the United States agree that the Section 129 Determination is a different 
measure than the original 2000 USDOC sunset determination?  
 
15. The relevance of the question is unclear, but  the Section 129 Determ ination is a measure 
taken to comply with the DSB recommendati ons and rulings in the original dispute. 
 
(c) Does the United States agree that Acindar cooperated with the USDOC 
Section 129 proceeding? 
 16. Argentina does not identify a provision of the Antidumping Agreement that requires an 
investigating authority to establish "cooperation."  Ther efore, the relevance of this question is unclear. 
 
(d) To what extent did Acindar's non-participation in the original 2000 USDOC 
sunset determination affect US DOC's Section 129 determination?  
 
17. As Argentina may be aware, Commerce perm itted Acindar to participate in the Section 129 
proceeding, notwithstanding Acindar's failure to participate in the original sunset proceeding. 
 
Q18. USDOC found that "Acindar likely was dumping subject OCTG during the original 
sunset review period". The USDOC then inferred that Acindar "was likely to continue selling in 
the United States at dumped prices if the order were revoked".  As a basis for the inference of 
"likely future dumping":  
 
(a) Is evidence of actual past dumping sufficient to support the inference of 
"likely future dumping?"  
(b) Is evidence of "likely" past dum ping a weaker basis for the inference 
than evidence of "actual" past dumping? WT/DS268/RW 
Page E-132  
 
  (c) Would "possible" past dumping be a sufficient basis for the inference of 
likely future dumping?  
 
18. Article 11.3 does not specify any particular factors that must be considered in a sunset review.   
See, e.g.,  US – Corrosion Resistant (AB) , para. 123. 
 
Q19. What level of certainty does the no tion of likely past dumping provide?  
 19. It is not clear by Argentina means by "level of certainty." 
 
Q20. If as stated by the US in its Second Written Submission, during the Section 129 
Determination proceedings, USDOC sought to eval uate "what the respondent's dumping profile 
had been over the life of the order" (emphasi s added), why didn't the USDOC ask information 
regarding export price and normal value? 
 20. The United States addressed this issu e in response to the Panel's questions. 
 
Q21. At what level of specificity have you identified the products exported by Acindar during 
the sunset period?  Do you know:   
a. the steel grade; 
b. the physical dimensions (wall thickness and outside diameter); c. whether they are plain end or threaded and coupled;  
 
21. The United States addressed this issu e in response to the Panel's questions. 
 
Q22. The same question as above with respect to  the products in the Preston Pipe Reports.  
 
22. The United States addressed this issu e in response to the Panel's questions. 
 
Q23. USDOC took the view that it had the righ t to develop a new evidentiary basis to support 
its 2001 decision to continue the measure, provide d that the information pertained to the sunset 
period.  Why didn't USDOC ask Acindar to identify the specific products that it shipped to the United States during the review period?  
 
23. Argentina has failed to identify any provision in the covered agreement that requires such a 
question. 
 
Q24. The United States explained during the hearing that it constructed its 31 October 2005  
questionnaire (ARG-13) with knowledge that Ac indar had no viable home or third market, 
knowledge which the United States claimed that US DOC obtained in an administrative review of 
a period subsequent to the sunset review period. 
 
(a) Did USDOC establish on the record of the Section 129 determination 
prior to issuance of its questionnaire that Acindar did not have a "viable" home market or third country market? 
 
24. The United States addressed the issue of viability in response to Panel Question 10. 
 
(b) Would you agree that "viability" is an Article 2 concept? 
 
25. Article 2 does not provide "concepts" just as it does not provide "notions."  See US First 
Written Submission, para. 46.    WT/DS268/RW 
 Page E-133 
 
 
   
(c) Article 2 indicates a standard test for viability, and also indicates that "any" 
sales in the home or third country mark et can be used to establish a viable 
market in certain circumstances.  Article 2 also indicates that viability can be determined on a country-wide basis.  Did the USDOC consider all options 
provided for by Article 2 before concluding  that there was not a viable home or 
third country market for all of the yea rs included in the sunset review period?  
 
26. The United States addressed the issue of  viability in response to Panel Question 10.  
 
(d) Would you agree that "export price" and "normal value" are Article 2 
concepts? 
 
27. Article 2 does not provide "concepts" just as it does not provide "notions."  See US First 
Written Submission, para. 46.  
 
(e) Can the United States indicate whether it believes that market prices in the 
importing country can be used as "normal value"? 
  
28. The appropriate surrogate for normal value depends on the facts on the record.  
 
(f) In light of the statement by the United States that the Acindar division 
encompassing OCTG production was pr ofitable, and USDOC's apparent belief 
that all of Acindar's OCTG production was shipped to the United States, why was it necessary to request product-specific OCTG costs?  Why did USDOC not conclude from the profitability of Acinda r's OCTG production that Acindar was 
selling above normal value and was not likely to dump in the United States? 
 
29. The United States is unable to locate, on the record of the proceeding, an argument that  
Acindar's OCTG production was profitable, nor any argument as to the relevance of that fact.  
 
Q25. The United States indicated in the hearin g that it would not compare a welded OCTG 
product with a seamless OCTG product because of  the difference in the two products.  Do the 
same concerns permit the comparison of plai n end OCTG with threaded and coupled OCTG?  
If not, why not?   
30. Production of welded OCTG entails a signi ficantly different production process than for 
seamless OCTG and thus, it has a significantly different cost and price structure.  PE and T&C go 
through the same production process that only differ in the end finishing st ages.  The differences 
between welded and seamless OCTG are more releva nt than the differences between PE and T&C.  
This is exhibited by the fact that Preston P ublishing collects and reports prices for OCTG by 
distinguishing between seamless and welded, but it does not do so for end finishing.  
 Q26. During the hearing and in its Second Subm ission, the United States explained that it 
calculated a weighted average of Siderca's plain end and threaded and coupled products in order to ensure that the comparison with the Pr eston Pipe Report data was on a consistent 
basis.  However, when comparing each of Aci ndar's US sales (which, by definition, were either 
plain end or threaded and coupled) to the Preston Pipe Report data (which, by definition, did 
not distinguish between plain end and threaded and coupled), the Department appears not to 
have been concerned with any possible distortion that could arise from comparing products with different end finishes.  Is this reaso nable?  If yes, please explain why.  
 WT/DS268/RW 
Page E-134  
 
  31. Commerce used a weighted average approach  to reviewing Siderca's data because it was 
analyzing the data on an aggregate level.  In contr ast, when doing its analysis as to Acindar, it did a 
sale-by-sale analysis so as to compare the sales with contemporaneous price data, and weight 
averaging was not relevant.  Had Acindar been able  to provide its cost data, then Commerce would 
have been able to compare the sales to  the costs on a more specific level.  
 
Siderca's Information
 
 
Q27. Did USDOC ever advise Siderca, before the final determination, that it considered 
Siderca's cost information to be internally inconsistent?  
 
32. See US First Written Submission, para. 82.   
 
Q28. Did USDOC give Siderca the opport unity to clarify the inconsistencies? 
 33. See US First Written Submission, para. 82.   
 Regarding Waiver
 
 
Q29. Once a company files an affirmative waiver and a statement that it is likely to dump, 
does the USDOC have any discretion under the statut e to determine on a company-specific basis 
that the waiving company would not be likely to dump?  
 
34. See US First Written Submission, para. 14. 
 
Q30. If the answer to the above question is yes, then please explain how a company-specific 
finding that dumping would not be likely in th is circumstance could be consistent with the 
mandate of Section 751(c)(4)(B) of the Tariff Act?  
 
35. Section 751(c)(4)(B) does not speak to order-wide determinations.  
Q31. Does the United States agree that under US law, in the event of a conflict between a 
federal statute and an agency's implementing re gulation, that the terms of the statute would 
prevail in the event of a conflict?  If not, please explain why not.  
 
36. Argentina has not established that, as a matter of  US municipal law, any such conflict exists.  
 Q32. To illustrate the operation of the st atutory mandate, please consider the following 
situation.  USDOC maintains an antidumping ord er on a steel product from country A.  There 
are 3 exporters in A, one of which is a subsidiary  of the US company that petitioned for the AD 
duties.  In the sunset determination, that co mpany invokes the waiver provision, admitting that 
it is likely to dump in the United States upon revocation.  The other 2 exporters participate by filing a substantive response. 
 
(a) Would DOC make an affirmative likelihood determination with respect to the 
waiving exporter? 
 
(b) Would DOC have any discretion not to make an affirmative likelihood 
determination with respect to the waiving exporter? 
 
(c) If the other two exporters later protest ed that the "admission" was false, and 
done in order to increase the chances of continuing the measure, could USDOC  WT/DS268/RW 
 Page E-135 
 
 
  weigh the evidence to decide not to ma ke an affirmative determination with 
respect to the waiving exporter? 
 
37. See US Answer to Panel Question 7.   
 
Q33. Has any party ever used the new waiver provision and submitted a the requisite 
"admission" that it is likely to dump upon revocation?  
38. The United States is unaware of any such waiver at this time. 
 
Others  
Q34. Has USDOC ever issued a negative sunset  determination in reviews in which the US 
industry requests continuation of the measure?  
 39. The United States is unable to relate this qu estion to any of Argentina's claims in this 
proceeding.  WT/DS268/RW 
Page E-136  
 
  ANNEX E-6 
 
COMMENTS OF ARGENTI NA ON THE UNITED STATES' 
RESPONSES TO THE WRITTEN QUESTIONS 
FROM ARGENTINA 
 
  Argentina's General Comment on US Response to Argentina's Questions
 
 
1. In response to the express invitation of the Panel, Argentina prepared a series of written 
questions that addressed several critical issues that ar e at the heart of this dispute.  In recognition of 
the fact that the US positions had changed or were  evolving during the course of the proceeding, and 
reflecting on some of the exchanges that took place during the Panel's meetings with the Parties and 
the Third Parties, Argentina believed that there was merit in taking the Panel up on its offer to present 
written questions to the United States. 
 2. Argentina's written questions were presented as a means to help clarify issues and to permit 
the Panel to assess the US position, or to attempt to have the United States take a position on certain 
issues.  In this way, Argentina hoped to facilitate th is Panel's analysis of the dispute before it.  In 
response to Argentina's effort, the United St ates submitted a document entitled "US Answers to 
Argentina's Questions, 24 July 2006."  Yet, the substance of the document does not in any way reflect 
its title, as the US submission is essentially non-respons ive.  In fact, the tenor and approach of the 
submission is wholly dismissive of Argentina's ques tions.  Evidently, the United States believes that it 
is simply unimportant for the United States to r espond to Argentina's written questions.  Argentina 
would respectfully urge the Panel to review th e written questions of Argentina and to note the 
stunning lack of substance in the US responses.  Th e US decision to be largely non-responsive, vague, 
and flippant serves only to highlight that the United States could not formulate substantive answers to Argentina's questions.  Measure Taken to Comply and USDOC's Volume Inference
 
 
3. The United States refers to the US answer  to panel question 18(a) and then ignores 
questions 2(a)-(b), 3, 4,  5(a)-(g), and 6(a)-(b) based on the asserti on that "The volume analysis is not 
within the scope of these proceedings."1 
 4. Argentina recalls that it is well established in WTO jurisprudence that it is not up to the 
implementing party to decide the scope of  jurisdiction of an Article 21.5 panel.
2  In addition, by 
expressly relying on its original finding on volum e, the USDOC placed these findings within the 
scope of the "measures taken to comply" for th e purposes of this Section 21.5 proceeding. In Canada 
– Aircraft , the Appellate Body confirmed that "in carry ing out its review under Article 21.5 of the 
DSU, a panel is not confined to examining the 'mea sures taken to comply' from the perspective of the 
claims, arguments and factual circumstances that rela ted to the measure that was the subject of the 
original proceedings.  Although these may have some  relevance in proceedings under Article 21.5 of 
                                                      
1 US Answers to Argentina's Questions, 24 July 2006, para. 2. 
2 See, e.g., Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 73 
("A Member's designation of a measure as one taken 'to comply', or not, is relevant to this inquiry, but it cannot be conclusive. Conversely, nor is it up to the complaining Member alone to determine what constitutes the 
measure taken to comply. It is rather for the Panel itself to determine the ambit of its jurisdiction.").  WT/DS268/RW 
 Page E-137 
 
 
  the DSU, Article 21.5 proceedings involve, in principle, not the original measure, but rather a new and 
different measure which was not before the original panel."3 
 "Likely Past Dumping"
 
 
5. In response to Argentina's questions rega rding USDOC's determination that Acindar was 
"likely dumping" during the sunset period and the c onsistency of that dete rmination with certain 
Article 2 concepts such as "viability" "normal va lue" and "export prices," the United States offers 
responses such as "Article 2 does not provide 'c oncepts' just as it does not provide 'notions'"4 or that 
an "issue was addressed in response to the Panel questions."5  These latter statements are offered 
without citation, specific references or any elaboration. 
 6. Argentina disagrees with the United States on whether the disciplines of Article 2 speak 
directly to the concepts of viability, normal valu e, and export price.  Argentina reads the text of 
Article 2 to address these concepts expressly.  Th e US responses simply reaffirm that the United 
States was unconcerned with the requirements of th e Antidumping Agreement, believing that because 
the Appellate Body clarified that Article 11.3 does not require the authority to calculate a dumping 
margin for purposes of an Article 11.3 determinat ion, that the exercise is completely free from 
discipline.  Argentina urges the Panel to reject th e US position, and would invi te the Panel to review 
Argentina's arguments regarding the fundamental fl aws with the USDOC's infe rence of likely past 
dumping as the basis for its inference that dumping would be likely to continue or recur.
6 
 
7. Consistent with the US view of the non-app licability of the Article 2 disciplines and that it 
was appropriate to use observed US market prices  for USDOC's determinati on of Acindar's "likely 
past dumping," the United States contends that "the  appropriate surrogate for normal value depends 
on the facts of the record."7 
 
8. Argentina sees no basis for the US position th at "dumping," as defined in Article 2, and 
Article VI of the GATT 1994, permits a "surrogate for normal value" based on average prices in the 
importing country.  Also, in this case, Argentin a has demonstrated the serious flaws with the 
USDOC's comparison of the observed US market prices with certain of Acindar's US sales.  
9. As the Appellate Body has clarified, Article 2 is the only source in the Agreement for making 
conclusions regarding "dumping."
8  Therefore, the "dumping" in Article 11.3 is the "dumping" in 
Article 2, and Article 2 explains that "dumping" must arise from a comparison of "export price" to 
"normal value."  That is not what the USDOC did.  Rather, USDOC compared prices obtained from the US Customs authorities to local US selling prices. 
 
10. In question 24, Argentina asked the United States a series of questions related to the 
statements by the United States at the substantive m eeting that it "knew" that Acindar had no viable 
home or third market.  Specifically, Argentina asked whether USDOC had established this fact on the record of the Section 129 proceeding prior to the issuance of the questionnaire.  
11. The United States does not respond directly, but instead says "The United States addressed 
the issue of viability in response to Panel Question 10."
9  That is the entire response.  Yet, the 
US response to Panel Question 10 does not address this  important question directly.  The closest that 
                                                      
3 Appellate Body Report, Canada – Aircraft , para. 41. 
4 See US Answers to Argentina's Questions, 24 July 2006, paras. 25, 27. 
5 See US Answers to Argentina's Questions, 24 July 2006, paras. 20, 21, 22. 
6 See Argentina's First Submission, paras. 68-132; Argentina's Second Submission, paras. 35-68 
7 US Answers to Argentina's Questions, 24 July 2006, para. 28. 
8 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 127. WT/DS268/RW 
Page E-138  
 
  the United States comes to answering Argentina's qu estion is the statement in paragraph 25 of the 
US Answers to the Panel's Questions:  
"Aware that Acindar, the only exporter, had no home market or third country sales, Commerce drafted the questionnaire with the intention of asking questions that the 
respondents could actually answer, and ther efore requested the product-specific cost 
data to provide an estimate of normal value." 
 12. If this is the only US answer, then Argentina submits that the Panel has to conclude that the 
answer to Argentina's question 24 is:  "no, USDOC  did not establish on the record of the Section 129 
determination prior to issuance of the questionnaire th at Acindar did not have a 'viable' home or third 
country market."  13. Argentina also asks that the Panel refer to  Argentina's other comments on the United States 
response to question 10.  As demonstrated there, the answers of the United States are problematic for 
a number of reasons, including the fact that tangi ble evidence of what USDOC "knew" from the post-
sunset review of Acindar directly contradicts USDOC's statement in paragraph 25.  The USDOC in fact verified that Acindar did have home market sales of OCTG.  14. In question 25, Argentina asked  the United States to reconcile di fferent statements relating to 
the degree of diligence it applied in comparing Ac indar's sales to the Preston Pipe report average 
category prices.  In its response, the United States explains that there is no inconsistency:  the 
differences between welded and seamless pipe is "more relevant" than the differences in end 
finishing, and then adds as proof the fact that Preston Publishing separates the former, but not the 
latter.
10 
 
15. Argentina offers two observations.  First, th e response shows that the United States is trying 
to have it both ways.  It cannot deny that the di fference in end finishes can account to up to 25 per 
cent of the value of some OCTG products, so it si mply asserts that the diffe rence between welded and 
seamless OCTG is "more" relevant.  The point is not what is "more relevant;" the point is that 
USDOC is conducting a comparison in which it is has not  even tried to control for a factor that could 
cause a significant variance in the price.  Also, gi ven the concession by the United States that it does 
not know the effect of freight costs on the Preston Publishing data,11 it is clear that the comparison 
performed suffers from the same problem that the Pane l identified with the explanations used to try to 
justify the 2000 sunset determinations:  it does not pr ovide a sufficient basis to conclude that dumping 
had (likely) occurred during the period, let alone that  dumping would be likely to occur in the event of 
expiry. 
 
16. Second, the form in which Preston Publishi ng publishes the data provides no help to the 
US argument.  It is unlikely that Preston Publishing is  concerned with its data being used to determine 
dumping.  The form in which this publi cation presents the data adds nothing. 
 Siderca's Information
 
 
17. In response to Argentina's questions regard ing whether USDOC advised Siderca before the 
issuance of the Section 129 Determination that USDOC  considered Siderca's cost information to be 
deficient or whether Siderca was given the opportunity  to respond to any of the alleged deficiencies,12 
                                                                                                                                                                     
9 US Answers to Argentina's Questions, 24 July 2006, para. 24. 
10 US Answers to Argentina's Questions, 24 July 2006, para. 30. 
11 See Argentina's Comments on the US Written Answ ers to the Panel's Questions (Argentina's 
comments on US answer to panel question 26(a)). 
12 See Argentina's Written Questions to the United States, questions US  WT/DS268/RW 
 Page E-139 
 
 
  the United States refers to paragraph 82 of the US First Submission.  Therein lies the familiar 
US defence that USDOC made "no company-specific finding regarding Siderca" and that the "The Section 129 Determination was based on the findings of likely dumping by Acindar and the decreased 
volumes."
13 
 
18. Argentina has responded to this argument in de tail.  The record is cl ear that Siderca was not 
informed, and that the USDOC's reasons for rejec ting Siderca's cost information were seriously 
flawed.  Argentina refers the Panel to its submis sions on these points that the United States has failed 
to rebut.14 
 
Waiver  
 19. The United States has not rebutted two key points.   First, the statute continues to mandate a 
company-specific finding in certain instances.
15  Thus, all of the US arguments are misplaced, as the 
United States failed to remedy the basic problem wi th the waiver provision that was identified by the 
Appellate Body, which already has determined that a statutorily-mandated company-specific 
affirmative determination will necessaril y taint any country-wide determination.16 
 20. Second, as for the scope of subparagraph (A ) of Section 751(c)(4) – the United States and 
Argentina disagree that the US revised waiver re gulation can change the meaning of the phrase "may 
elect not to participate." 
 
21. In connection with this latter point, the Un ited States has not rebutted and, therefore must 
agree with Argentina, that under US law, a US st atute will prevail over a US regulation where the two 
measures are inconsistent.
17  In addition, although an agency  such as the USDOC may promulgate 
regulations pursuant to authority granted by Co ngress, that agency cannot through the promulgation 
of a regulation confer on itself any greater author ity than that conferred under the governing statute.18  
Accordingly, where the statute mandates a speci fic action (i.e., making an affirmative company-
specific likelihood determination), the statute ca nnot be overridden by USDOC's modification of an 
implementing regulation.  
                                                     
 
13 US First Submission, para. 82. 
14 See Argentina's First Submission, paras. 73-107, 130-132, 171-185; Argentina's Second Submission, 
paras. 61-68, 78-80, 137-140; Argentina's Opening Oral Statement, paras. 51-61; Argentina's Answers to 
Questions from the Panel, paras. 126-133.  
15 See US Answers to Panel Questions, 24 July 2006, paras. 13-15, 19-20. 
16 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , paras. 234-235. 
17 See Argentina's Second Submission, para. 164 and note 161. 
18 See Argentina's Second Submission, para. 164 and note 162. WT/DS268/RW 
Page E-140  
 
 ANNEX E-7 
 
ADDITIONAL COMMENTS OF THE UNITED STATES  
ON ARGENTINA'S ANSWERS TO QUESTIONS 20, 21  
AND 22 FROM THE PANEL TO THE PARTIES 
 
4 August 2006 
   Q20. (a) The Panel notes Argentina's allegat ion that by failing to  respond to Siderca's 
letter dated 7 December 2005, the USDOC acte d inconsistently with Articles 6.1 
and 6.2.  Please explain how exactly failure to reply to this letter violated the USDOC's obligations under Articles 6.1 and 6.2. 
 
 Argentina states that respondents did not find out until 16 December that there would be no 
further procedures.
1  Yet the expiry of the reasonable period of time was 17 December.  The very 
point the United States made to the arbitrator, a nd which Argentina opposed, is that 15 months would 
be necessary to ensure provision of many of the due process considerations that are not obligatory, but 
that Argentina now considers to be the basis of its Articles 6.1 and 6.2 claims.  If respondents, on 
15 December (the day after their most recent f iling), were expecting further procedures, then 
Argentina might have considered offering to exte nd the reasonable period of time to permit such 
additional procedures.   
Q21. The Panel notes Argentina's argument that the USDOC failed to make six memoranda 
available to the Argentine exporters. 
 
 (b) Please explain whether it was "practicable" within the meaning of Article 6.4 of 
the Agreement for the US DOC to make these memo randa available to the 
Argentine exporters in these Section 129 proceedings. 
 
 Argentina concedes that what is "practicable" for purposes of Article 6.4 "will need to be 
determined on a case-by-case basis."
2  Yet, it then argues that the Panel should disregard the severest 
limiting factor for what is practicable in this case – the timeframe.  Specifically, Commerce had only six weeks to conduct its Section 129 Determination.  Four of those weeks were given to the Argentine 
respondents to allow them to respond to the questi onnaire – leaving only two weeks for Commerce to 
review all of the record evidence and comments by th e parties, and then make its decision.  What is 
practicable for purposes of Article 6.4 must be viewed in light of the time constraints. 
  Argentina argues that the United States shoul d have conducted the Section 129 proceeding 
concurrently with the revision of the waiver regulation, but "chose not to do so".
3  However, as the 
United States explained to the arbitrator, that a pproach was not possible because of the particular 
findings in this dispute, i.e., that a WTO-inconsistent finding based on a company's waiver of 
participation "tainted" the overall determination.4  Until the regulations were  amended to eliminate the 
                                                      
1 Argentina's Answers to Panel Questions, para. 98. 
2 Argentina's Answers to Questions, para. 115. 
3 Argentina's Answers to Panel Questions, para. 116. 
4 See Appellate Body Report, at para. 233 (quoting the Panel, the Appellate Body explained that "'[t]o 
the extent' that the company- specific determinations [which are a result of the US provisions found to be  "as 
such" WTO inconsistent] were taken into account in the order-wide determination, the order-wide determination  WT/DS268/RW 
 Page E-141 
 
 
 possibility of a WTO-inconsistent waiver, Commerce could not begin the Section 129 proceeding, lest 
a company "waive" participation (for example, by  not filing a response) under the as-yet unamended 
regulations.    Argentina also asserts that it should have been  informed of the "analysis that was being 
performed".
5  However, Argentina has failed to demonstr ate that Article 6.4 requires a Member to 
release its reasoning.6 
  
Finally, Argentina argues that the United Stat es has failed to provide any explanation as to 
why the memoranda could not have been provided earlier.7  Argentina seeks to reverse the burden of 
proof in this dispute by arguing that the United States should prove compliance with a provision, 
when Argentina has in fact  failed even to make a prima facie case of non-compliance. 
 
Q22. The Panel notes Argentina's argument that the USDOC violated Article 6.4 by accepting 
unsolicited comments from the petitioners on  30 November 2005.  The Panel also notes 
Argentina's acknowledgement that Siderca resp onded to these comments in its letter dated 
7 December 2005.    Please explain how exactly the admission of these comments violated Article 6.4 of the 
Agreement.  
 Argentina appears to be suggesting that ther e was something unusual in how "emphatically" 
the petitioners in their 30 November letter stated  conclusions with respect to data released by 
Commerce to  both  parties on 28 November.
8  Argentina states that the data was released to Siderca, 
"only on November 28", neglecting to mention that this  is precisely the date on which petitioners also 
received the data.9  Argentina fails to explain why two days  were insufficient for the petitioners (or, 
for that matter Siderca) to deve lop "emphatic" conclusions.  To the extent that Argentina is implying 
that Commerce released the data to petitioners earlier than the 28th, this suggestion is entirely 
unfounded, unsupported and false.   
                                                                                                                                                                    
 
could not 'be supported by reasoned and adequate conclusions based on the facts before the investigating 
authority.'"). 
5 Argentina's Response to Panel's Questions, para. 117. 
6 See, EC Pipe Fitting (AB), para. 140. 
7 Argentina's Answers to Panel Questions, para. 117. 
8 Argentina's Answers to Panel Questions, para. 118. 
9 Argentina's Answers to Panel Questions, para. 118.  WT/DS268/RW 
Page E-142  
 
 ANNEX E-8 
 
ADDITIONAL COMMENTS OF ARGENTINA ON 
THE UNITED STATES' RESPONSES TO THE 
PANEL'S QUESTIONS TO THE PARTIES 
 
11 August 2006 
   
 Argentina recalls its 31 July Comments on the US Answer to Question 17 of the Panel's 
Questions.  On the issue of the judicial econom y exercised by the Panel on the volume issue, 
Argentina stated in part that:   
Argentina agrees with the United States th at the Panel exercised judicial economy 
with respect to the volume issue….  Howeve r, the United States is incorrect when it 
asserts that Argentina was required to app eal the Panel's exercise of discretion as 
"false judicial economy," or abandon its right to have the issue considered on the 
merits. 
The flaw in the argument put forward by the United States is its refusal to 
acknowledge that the Panel already had found that USDOC's 2000 sunset 
determination violated Article 11.3.  Th erefore, in order to bring itself into 
compliance with the rulings and recommenda tions of the DSB, the United States 
would either have to revoke the measure or justify the continuation based on some 
further determination.  Any further determ ination would be subject to review under 
Article 21.5, and the Panel would be requi red to review all stated bases of that 
decision in order to determine whether it w as consistent with Article 11.3.  Thus, the 
exercise of discretion by the Panel was not  false judicial economy because the Panel 
had already disposed of the matter by fi nding a violation of Article 11.3, and any 
future determination seeking to justify continuation of the measure would have to 
comply with Article 11.3.
1 
 Argentina affirms its 31 July Comment, and would simply note that its position is fully 
consistent with the Appellate Body decision in US – Anti-Dumping Measures on Oil Country Tubular 
Goods .2  The Appellate Body in that case stated that: 
 
In our view, the Panel did not commit an erro r of law in deciding to exercise judicial 
economy with regard to the issue of whether the USDOC determination was consistent with Article 2, as it had already found that determinati on to be inconsistent 
with Article 11.3 of the Anti-Dumping Agreement . In Canada – Wheat Exports and 
Grain Imports , the Appellate Body found that the practice of judicial economy 
"allows a panel to refrain from making multip le findings that the same measure is 
inconsistent with various provisions when a single, or a certain number of findings of 
inconsistency, would suffice to resolve th e dispute." Mexico has not explained why 
                                                     
 
1 Argentina's July 31 Comments on the US Written Answ ers to Questions from the Panel, paras. 58 and 
59. 
2 Appellate Body Report, United States – Anti-Dumping Measures on Oil Country Tubular Goods 
(OCTG) from Mexico, WT/DS282/AB/R, adopted 28 November 2005.  WT/DS268/RW 
 Page E-143 
 
 
 an additional finding on Mexico's claim under Article 2 of the Anti-Dumping 
Agreement is necessary to resolve the disput e.  And we find no such need.3 
 Thus, the Appellate Body ruling in US – Anti-Dumping Measures on Oil Country Tubular 
Goods  simply reinforces Argentina's position that it w as not required to appeal the Panel's exercise of 
discretion as "false judicial economy" in order to preserve its right to challenge the volume issue if it 
were relied upon in the measure taken to comply.  As in US – Anti-Dumping Measures on Oil Country 
Tubular Goods , the Panel in the present case "had already foun d [the] determination to be inconsistent 
with Article 11.3 of the Anti-Dumping Agreement " and therefore concluded that an additional finding 
on volume was not necessary to resolve the dispute. 
 
 
                                                      
3 Id., para. 178.  Footnotes deleted.