WT/DS268/RW 
 Page C-1 
 
 
   
 
ANNEX C 
  
SECOND WRITTEN SUBM ISSIONS OF PARTIES 
 
 
Contents Page 
Annex C-1 Second Written Submission of Argentina C-2 
Annex C-2 Second Written Submission of the United States C-47 
 WT/DS268/RW 
Page C-2  
 
  ANNEX C-1 
 
SECOND WRITTEN SUBMISSION 
OF ARGENTINA 
 
3 May 2006 
 
 
Page  
 
I. INTRODUCTION ............................................................................................................... 4 
II. THE SECTION 129 DETERMINATIO N IS INCONSISTENT WITH 
ARTICLES 11.3 AND 11.4 OF THE ANTI-DUMPING AGREEMENT 
BECAUSE USDOC RELIED ON AN EVIDENTIARY BASIS FIRST 
DEVELOPED IN 2005 ........................................................................................................ 5 
A. CONTRARY TO THE US ARGUMENTS,  THERE IS TEXTUAL SUPPORT IN THE 
ANTI-DUMPING AGREEMENT FOR ARGENTINA’S POSITION THAT USDOC’S 
DETERMINATION OF LIKELY DUMPING MUST RELY ON AN EVIDENTIARY 
BASIS DEVELOPED DURING THE 2000 REVIEW ................................................................. 5 
B. ARTICLES 11.3 AND 11 .4 MUST NOT BE INTERPR ETED IN A MANNER THAT 
WOULD LEAD TO AN ABSURDITY ...................................................................................... 8 
III. ASSUMING ARGUENDO THAT USDOC CAN RELY ON AN 
EVIDENTIARY BASIS FIRST DEVE LOPED IN 2005, THE USDOC 
SECTION 129 DETERMINATION FAI LED TO BRING THE UNITED 
STATES INTO COMPLIANCE WITH THE RULINGS OF THE DSB AND IS 
ALSO INCONSISTENT WITH US WTO OBLIGATIONS ........................................... 9 
A. THE STATED BASES FOR THE USDOC SECTION 129 DETERMINATION AND THE 
PANEL’S STANDARD OF REVIEW ..............................................................................................10 
B. USDOC’S FINDINGS REGARDING ACINDAR ARE INCONSISTENT WITH US WTO 
OBLIGATIONS ..................................................................................................................... 11 
1. USDOC “Likelihood” Determination Based on a “Likelihood” of Dumping 
Finding Regarding Past Sales Was Inconsistent With Article 11.3 of the Anti-
dumping Agreement .......................................................................................................... 12 
2. The Evidence Developed By USDOC Does No t Constitute Positive Evidence of 
Likely Dumping and USDOC’s Conclusion s Cannot Be Considered Unbiased or 
Objective ............................................................................................................................. 14  
3. USDOC’s Reference to Acindar’s 60 per cent Margin ................................................... 16 
C. USDOC’S FINDINGS REGARDING SIDERCA ARE INCONSISTENT WITH US WTO 
OBLIGATIONS.................................................................................................................... .............17 
D. USDOC’S INFERENCE REGARDING LIKELIHOOD OF DUMPING BASED ON THE 
POST-ORDER VOLUME DECLINE IS INCONSISTENT WITH US WTO 
OBLIGATIONS.................................................................................................................... .............19 
1. The USDOC Failed in 2000, and Again in 2005, to Examine the Reason for the 
Post-Order Volume Decline So as to Support its Inference Regarding 
Likelihood of Dumping ...................................................................................................... 19  WT/DS268/RW 
 Page C-3 
 
 
  2. The USDOC’s Section 129 Determinatio n is A "Measure Taken To Comply" 
and USDOC's Findings Regarding Volume Are Part of That Determination ............. 22 
3. Prior WTO Jurisprudence Confirms th at USDOC's Findings on Volume Are 
Part of The Measures Taken to Comply .......................................................................... 24 
IV. THE UNITED STATES VIOLATED THE SPECIFIED OBLIGATIONS OF 
ARTICLE 6 OF THE ANTI-DUMPING AGREEMENT ............................................. 27 
A. ARTICLE 6 OF THE ANTI-DUMPING  AGREEMENT APPLIED TO THE USDOC 
SECTION 129 DETE RMINATION ..................................................................................................27 
B. THE USDOC FAILED TO PROVID E TO INTERESTED PARTIES AMPLE 
OPPORTUNITY TO PRESENT IN WRIT ING ALL EVIDENCE WHICH THEY 
CONSIDERED RELEVANT, IN VIOLATION OF ARTICLE 6.1, AND FAILED TO 
PROVIDE INTERESTED PARTIES A FULL OPPORTUNITY FOR THE DEFENCE OF 
THEIR INTERESTS, IN VIOLATION OF ARTICLE 6.2 ...............................................................27 
C. THE USDOC FAILED TO PROVIDE TIMELY OPPORTUNITIES FOR INTERESTED 
PARTIES TO SEE ALL OF THE INFORM ATION THAT IS RELEVANT TO THE 
PRESENTATION OF THEIR CASES, IN VIOLATION OF ARTICLE 6.4 ...................................29 
D. THE USDOC FAILED TO REQUIRE CERT AIN INTERESTED PARTIES TO SUBMIT 
NON-CONFIDENTIAL SUMMARIES OF TH EIR WRITTEN SUBMISSIONS IN THE 
SECTION 129 PROCEEDING IN A MANNER SO AS TO PERMIT THE ARGENTINE EXPORTERS TO HAVE A REASONABLE UNDERSTANDING OF THE SUBSTANCE 
OF THE CONFIDENTIAL INFORMATION SUBMITTED, IN VIOLATION OF 
ARTICLE  6.5 AND 6.5.1 ......................................................................................................... ........32 
E. THE USDOC FAILED TO SATISFY ITSELF AS TO THE ACCURACY OF SIDERCA'S 
SUBMITTED COST INFORMAT ION FOR THE PURPOSES OF ITS FINDINGS, IN 
VIOLATION OF ARTICLE 6.6 ....................................................................................................... .34 
F. THE USDOC FAILED TO FOLLOW THE REQUIREMENTS OF ARTICLE 6.8 AND 
ANNEX II OF THE ANTI-DUMPING AGREEMENT....................................................................36 
G. THE USDOC FAILED TO INFORM INTERESTED PARTIES OF THE ESSENTIAL 
FACTS UNDER CONSIDERATION WHICH FO RMED THE BASIS FOR THE SECTION 
129 DETERMINATION, IN VIOLATION OF ARTICLE 6.9 .........................................................37 
V. ARGENTINA HAD A GOOD FAITH BASIS FOR ITS CLAIM THAT THE 
UNITED STATES HAD VIOLATED ARTICLE 13 OF THE ANTI-DUMPING 
AGREEMENT ................................................................................................................... 38 
VI. THE UNITED STATES HAS FAILED TO BRING THE STATUTORY AND 
REGULATORY WAIVER PROVISIONS INTO COMPLIANCE WITH THE RULINGS OF THE DSB AND WITH US WTO OBLIGATIONS .............................. 38  
A. NON-PARTICIPATION IN USDOC SUNSET REVIEW BUT NO AFFIRMATIVE 
STATEMENT OF WAIVER ............................................................................................................ .40 
B. CASES THAT INVOLVE MULTIPLE EXPORTERS, WHERE SOME MAY FILE 
AFFIRMATIVE STATEMENTS OF WAIVER (AND ADMIT THAT THEY ARE LIKELY 
TO DUMP), WHILE OTHER EXPORTERS PA RTICIPATE AND TRY TO PROVE THAT 
DUMPING WOULD NOT BE LIKELY...........................................................................................42 
VII. THE UNITED STATES PROVIDES NO REASON WHY THIS PANEL 
SHOULD NOT EXERCISE ITS DIS CRETION AND SUGGEST THAT THE 
UNITED STATES REVOKE THE ANTI-DUMPING MEASURE ............................. 43 
VIII.  CONCLUSION .................................................................................................................. 46 
 
 WT/DS268/RW 
Page C-4  
 
  I. INTRODUCTION 
 
1. In its First Submission, the United States repeats some familiar themes from the original 
Panel proceeding to defend its position that it is now in compliance with its  WTO obligations.  The 
United States ascribes no particular importance to th e temporal obligations of Articles 11.3 and 11.4 
of the Anti-Dumping Agreement.  Essentially, the US position is that if the US Department of 
Commerce ("USDOC") did not get it right the first time, it can simply try again and again.  It can even develop a new evidentiary basis in 2005 to jus tify its 2001 decision to continue the measure; and 
it can repeat this process, ad infinitum  if necessary. 
 
2. Also, as it did in the Panel proceeding, the Un ited States reminds the Panel several times that 
Article 11.3 "prescribes no particular methodology" in making a likelihood of dumping determination.  
The United States then clarifies that USDOC came up with a new methodology in the Section 129 Determination:  it developed in formation purporting to show "likely past dumping," which USDOC 
then used to infer likely dumping in the event of expiry of the measure.   The Panel is told not to worry 
about the provisions of Article 2 of the Anti-Du mping Agreement and the definition of "dumping" 
because the USDOC did not make a dumping determina tion; it considered it "likely" that "dumping" 
had occurred in the past.  3. As to procedure and due process rights, the Un ited States agrees that they are important, and 
it does not disagree with Argentina's assertion that the disciplines of Article 6 of the Anti-Dumping 
Agreement apply to the 2005 Section 129 Determinati on.  However, the United States complains that 
there was no time to comply fully with these obligations, and blames Argentina for asking the 
DSU Article 21.3 Arbitrator to give the United Stat es less than the 15 months that it needed in order 
to fulfil all of its obligations, including those of Article 6.    
4. With respect to the "as such" violations, th e United States claims that the offending provision 
of the statute is now inoperative, and that the US DOC achieved this by writing a regulation that would 
require any interested party invoking the statutory wa iver right to confess that it would be likely to 
dump in the future.  The statute would still mandate a company-specific likelihood of dumping determination, and that company-specific de termination would still affect the country-wide 
determination, but this would not be a problem because the provision could only be invoked by self-
proclaimed likely dumpers. 
 5. Finally, with respect to Argentina's requ est that the Panel make a suggestion that the 
United States terminate the measure, the United States maintains the position from the Panel 
proceeding that Argentina is confusing the te rms "recommendation" with "suggestion."  Without 
addressing the points raised in Argentina's First S ubmission on this point, the United States is sure 
that the Panel should not suggest anything.  6. After reviewing the First Submission of the Un ited States, it is clear that this Panel cannot 
find the United States to be in compliance with its obligations.  In order to find the United States in 
compliance, the Panel would have to ignore the te mporal aspects of the Article 11.3 and Article 11.4 
obligations.  It would also have  to condone reliance on a new concept of "likely past dumping."  It 
would also have to accept the notion that the Arti cle 6 obligations can be overlooked if there is 
insufficient time.  The Panel would also have to accept that the statutorily-mandated likelihood 
finding – as abhorrent as it is to the nature of the Article 11.3 inquiry – will simply remain part of the 
law, and that the USDOC's regulation will prevent th e law from having any WTO-inconsistent effects.   
 
7. Below, Argentina explains in detail why th e Panel cannot find the United States to be in 
compliance with its obligations.   WT/DS268/RW 
 Page C-5 
 
 
  II. THE SECTION 129 DETERMI NATION IS INCONSISTENT WITH ARTICLES 11.3 
AND 11.4 OF THE ANTI-DUMPING AGREEMENT BECAUSE USDOC RELIED ON AN EVIDENTIARY BASIS FIRST DEVELOPED IN 2005  
 
A. CONTRARY TO THE US ARGUMENTS, TH ERE IS TEXTUAL SUPPORT IN THE ANTI-
DUMPING AGREEMENT FOR ARGENTINA'S POSITION THAT USDOC'S DETERMINATION 
OF LIKELY DUMPING MUST RELY ON AN EVIDENTIARY BASIS DEVELOPED DURING 
THE 2000 REVIEW 
 
8. The United States argues that "Argentina provid es no textual support fo r the proposition that a 
Member is prohibited from collecting new informati on in the course of coming into compliance with 
DSB recommendations and rulings."1  It also claims that Argentina's position, distinguishing between 
"new" and "clarifying" information, is not clear.2  The United States then cites to the compliance 
panel proceeding, United States – Countervailing Measures C oncerning Certain Products from the 
European Communities – Recourse to Article 21. 5 of the DSU by the European Communities ), as 
supporting the notion that USDOC's actions in this case are permissible.3 
 
9. The US argument is not tenable, and the United States has not characterized Argentina's 
position accurately.  Argentina's position is that the United States cannot, in this case,  justify its 2001 
decision to continue the measure  by relying on an evidentiary basis  first developed in 2005.  For the 
reasons discussed below, the Panel can agree with Argentina in this case  without resolving the broad 
issue that the United States wrongly attributes to Argentina.  
10. The facts of this case  demonstrate why the actions of the United States are inconsistent with 
the text of Articles 11.3 and 11.4.  It should be undisputed at this point in the proceeding that  the 
USDOC could only extend the anti-dumping measure  beyond August 2000 if it initiated a review 
prior to that time, and if that review had the fo llowing characteristics:  US DOC took an active rather 
than a passive role; USDOC properly established the facts; USDOC based its determination on 
positive evidence that dumping would be likely to c ontinue or recur; USDOC assessed the evidence 
objectively and had a sufficient factual basis to a llow it to draw reasoned and adequate conclusions 
concerning the likelihood that dumping would continue or recur upon expiry.
4  The USDOC also 
could not rely on speculation or conjecture.5  Under the explicit terms of the Agreement, such a 
review and determination is a condition precedent  to continuing the measure.6 
 
11. This Panel already has established that the United States did not comply with these 
requirements in 2000.  As the Panel stated:  "[t]he  purpose of a sunset review is to examine whether 
the facts continue to justify the imposition of an anti-dumping measure.  The USDOC, however, did not engage in that inquiry because it simply relie d on the existence of the dumping margin from the 
original investigation."
7  Thus, the Panel accurately observed that the violation in this case  is more 
                                                      
1 US First Submission, para. 28. 
2 US First Submission, para. 29. 
3 US First Submission, para. 28. 
4 See Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-
Resistant Carbon Steel Flat Products from Japan, WT/DS244/AB/R, adopted 9 January 1994, paras, 104-105, 
111, 113-114 (" US – Corrosion-Resistant Steel Sunset Review "). 
5 Appellate Body Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country 
Tubular Goods from Argentina , WT/DS268/AB/R, adopted 17  December 2004, para. 180 (" US – Oil Country 
Tubular Goods Sunset Reviews "). 
6 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 104. 
7 Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular 
Goods from Argentina , WT/DS268/AB/R, adopted 17 December 2004, para. 7.219 (" US – Oil Country Tubular 
Goods Sunset Reviews ").  The Panel also observed that the USDOC relied on a finding "that import volumes 
declined following the imposition of the order."  Id. at paras. 7.213, 7.221. WT/DS268/RW 
Page C-6  
 
  than simply reaching a decision that is not reasoned or adequately supported by facts:  the facts and 
the evidentiary basis were not developed by the USDOC – "it did not engage in that inquiry" – and USDOC chose to "simply rel[y]" on the existence of the dumping margin from the original investigation."
8 
 
12. The manner in which USDOC conducted the 2000 review affects what the United States can 
do to bring itself into compliance with its obliga tions in 2005.  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.  
13. Manifestly, that is not what occurred in this  case.  The USDOC was passi ve in its 2000 sunset 
review, and "it did not engage in" the type of in quiry required by Article 11.3.  The USDOC only 
became active in 2005.  In doing so, the USDOC found that in 2000 it had developed an insufficient evidentiary basis for continuing the measure, so no amount of clarification in 2005 of the evidentiary 
basis existing in 2000 would have brought the Un ited States into compliance with Articles 11.3 and 
11.4 of the Anti-Dumping Agreement. 
 
14. The United States purports not to understand this distinction, as it states:  "Argentina does not explain what it means by a 'new and different fact ual basis,' which is, for Argentina, apparently, 
impermissible, and how that is to be distinguished from 'clarifying information it had developed in the 
2000 proceeding,' which is, for Argentina, apparently, permissible."
9  For Argentina, the distinction is 
clear in this case.   In the original sunset proceeding, th e only substantive information that USDOC 
developed was (1) pre- and post- order import volum e data, and (2) historical dumping margins.  On 
this evidentiary basis, USDOC concluded that dump ing continued, and it infe rred that dumping would 
be likely to continue or recur in the future.  15. In 2005, with the USDOC Section 129 Determ ination, the USDOC sought to, and developed 
a different evidentiary basis: 
 
• financial statements for the Argentine producers for the period 1995-2000; 
• cost information for ten categories of OCTG products; 
• a description of each company's sales and marketing processes;  
• a statement as to whether the company e xported OCTG to the United States during 
the 1995-2000 period;  
• confidential import statistics from the US Customs authorities ("CBP");  
                                                     
 
8 The United States criticizes Argentina's statement that the original Panel found that there was "no 
basis for a WTO-consistent determination that dumping would be likely to continue or recur." US First 
Submission, para. 22. The United States distinguishes between "no basis" for a WTO-consistent determination, 
and an "inadequate factual basis" for a WTO-consistent determination.  If there is a distinction between these 
phrases, it is not very apparent or meaningful to the resolution of this dispute.  The USDOC had an obligation 
under Article 11.3 to terminate the anti-dumping measure unless it determined, based on an adequate factual 
basis, that dumping would be likely.  The Panel found that it did not do that, and therefore, there was no basis for a WTO-consistent determination to maintain the measure. 
9 US First Submission, para. 29.  WT/DS268/RW 
 Page C-7 
 
 
  • observed OCTG selling prices in the US market during the 1995-2000 period from an 
industry publication;   
• financial statements of US producers; and  
• data from Argentine export statistics. 
 
16. There can be no doubt that the evidentia ry basis developed by USDOC in the 2005 
Section 129 Determination is "n ew and different" compared with the evidentiary basis that it 
developed in the 2000 review.  Nor was this ne wly-developed information "clarifying" the 
information developed in the 2000 review.  USDOC's factual basis for inferring likely dumping in the 
2000 review was the 1.36 per cent dumping margin calcu lated in the original investigation, and the 
collection of those duties on some imports into  the United States.  The USDOC Section 129 
Determination from 2005 never even mentions the or iginal 1.36 per cent dumping margin.  In fact, 
USDOC introduces a new theory – one of "likely past dumping" – and uses this new basis to infer that 
dumping would have been likely to continue or recu r if the measure had been terminated effective 
August 2000.  17. The USDOC could have , in the 2000 review, developed the evidentiary basis it developed in 
2005, as it readily admits.  All of the information that USDOC developed in 2005 to construct its 
evidentiary basis of "likely past dumping" for th e Section 129 Determination (the CBP information, 
the US market price information, and all of the financial statements) was available to it during the 
2000 review.  In fact, the CBP data came from the US Customs authorities, who provided the information in 2005 in response to a simple requ est from USDOC.  But USDOC did none of this in 
the 2000 review.  The US position befo re this Panel is that it does not matter that the USDOC did not 
develop this evidentiary basis in the 2000 review:  as long as the USDOC eventually  is active rather 
than passive in conducting a review, and as long as it eventually  develops an evidentiary basis that 
contains more than the original dumping margin and the annual export volumes, it has complied with 
Articles 11.3 and 11.4.  18. Argentina submits that the USDOC's actions in this case  cannot be accepted as being 
consistent with the terms of Artic les 11.3 and 11.4.  If the substan tive and temporal requirements of 
Articles 11.3 and 11.4 are to have any meaning, Me mbers cannot simply choose to do a lax review at 
year five, and a different review eventually , if another Member complains.   
 19. The Panel's decision in US – Countervailing Measures on Certain EC Products 
(Article 21.5 – EC ) is not inconsistent with the Ar gentina's position before this Panel.
10  A review of 
that decision reveals that no party raised the issu e that is now before this Panel:  whether it is 
appropriate for an administering authority to develop new evidence that it had not previously 
developed in the original sunset proceeding and to rely upon that new eviden ce as the basis to justify 
the authority's original determination to extend th e measure.  For whatever reason, the European 
Communities did not argue that such action by USDOC  would be inconsistent  with the substantive 
and temporal requirements of Articles 21.3 and 21.4, the analogous provisions in the Agreement on 
Subsidies and Countervailing Measures to Articles 11.3 and 11.4 of the Anti-Dumping Agreement.  
The failure to challenge this basis meant th at the European Commun ities accepted that the 
continuation of the countervailing du ty measure beyond five years could be justified at a later time, 
and with an evidentiary basis that the authorities di d not develop at the time to invoke the "exception" 
to continue the measure.  In contrast, Argentin a does not accept this view of the substantive and 
                                                      
10 Panel Report, United States – Countervailing Measures Concerning Certain Products from the 
European Communities – Recourse to Article 21 .5 of the DSU by the European Communities , WT/DS212/RW, 
adopted 27 September 2005 (" US – Countervailing Measures on Certain EC Products (Article 21.5 – EC )").  WT/DS268/RW 
Page C-8  
 
  temporal requirements of Articles 11.3 and 11.4 of the Anti-Dumping Agreement, as applied to this 
particular sunset review.  20. In US – Countervailing Measures on Cert ain EC Products (Article 21.5 – EC ), the new 
information was offered by the respondent parties, a nd the Panel limited itself to the issue of whether 
the authorities had an obligation to consider factual evidence provided to it.
11  Finding that the 
authority has an obligation to consider evidence provi ded by the parties is not the same as saying that 
the authority has the right to deve lop the requisite evidentiary basis at any time, regardless of what it 
did in the original sunset review, and irrespective of the obligations of Articles 11.3 and 11.4.    
21. The USDOC did not develop the requisite factua l basis to conclude that dumping continued in 
the original sunset proceeding.  Rather, it inferred  from the original dumping margin and the payment 
of a small amount of dumping deposits that dumping had continued, and it inferred  from that 
inference that dumping was likely to continue or recur upon expiry.
12  It failed completely at the time 
of the original sunset determination to create an evidentiary basis to demonstrate continued dumping, 
and therefore had no basis  for its inference that dumping would continue or recur in the future. 
 22. Finally, the assertion that USDOC's actions we re somehow approved by the Arbitrator in the 
DSU Article 21.3 proceeding is wrong.  The United States argues, without citation, that "[t]he Arbitrator sought to ensure that Commerce would conf ine its collection of information to the original 
period of review – not that Commerce would be prevented from collecting new information about that 
period ."
13  The Report from that proceeding shows that the Arbitrator questioned the United States 
about its assertion that it had to proceed in seriatim  with the implementation processes to address the 
"as such" and "as applied" violations.  The Arb itrator's Report indicates that there was a line of 
questioning regarding "the process of reassessing th e evidence on record for a factual determination 
by the USDOC to remedy the 'as applied' violation."  At the end of that discussion, the Arbitrator's 
Report notes that "[t]he United States emphasizes that  this does not, however, mean that the USDOC 
would engage in a de novo  sunset review determination."14 The United States appears to take the view 
that it avoided such a de novo  sunset review simply by restricting the period to certain years 
(1995-2000).  But this is only the view of the United States, and nothing in the Arbitrator's decision suggests that the Arbitrator endorsed or agreed with the US position.   
B. ARTICLES 11.3 AND 11.4 MUST NOT BE INTERPRETED IN A MANNER THAT WOULD 
LEAD TO AN ABSURDITY 
 
23. The Panel will need to interpret Articles 11. 3 and 11.4 of the Anti-Dumping Agreement in 
order to determine whether the United States has achieved compliance through the 2005 Section 129 
Determination and the evidentiary basis developed in 2005.  Argentina respectfully submits that 
Articles 11.3 and 11.4 must be interpreted so th at these provisions have meaning, and that the 
meaning does not lead to absurd results.    
24. Article 3.2 of the DSU reaffirms that the ro le of the WTO dispute settlement system is to 
"clarify the existing provisions of those agre ements in accordance with  customary rules of 
                                                     
 
11 Panel Report, US – Countervailing Measures on Certain EC Products (Article 21.5 – EC) , 
para. 7.254.  
12 To be precise, this was the explanation provided by the United States in the Panel proceedings.  In 
fact, there was no reference in DOC's 2000 decision to the collection of anti-dumping deposits as the basis for 
the USDOC's conclusion that dumping had continued.  See USDOC Issues and Decision Memorandum for the 
Sunset Reviews of the AD Orders on Oil Country Tubular Goods from Argentina, Italy, Japan, and Korea  
(31 Oct. 2000) (ARG-8). 
13 US First Submission, para. 30 (emphasis in original). 
14 See Award of the Arbitrator, United States – Sunset Reviews of Anti-Dumping Measures on Oil 
Country Tubular Goods from Argentina , WT/DS268/12, ARB-2005-1/18, 7 June 2005, para. 38.  WT/DS268/RW 
 Page C-9 
 
 
  interpretation of public international law."  The general rules of interpretation of the Vienna 
Convention  require a panel to interpret treaty provis ions in good faith in accordance with their 
ordinary meaning, in their context, and in light of the treaty's object and purpose.15  The treaty 
language defines the extent of Members' rights and obligations, and a central tenet of treaty 
interpretation is that "interpretation must give mean ing and effect to all the terms of a treaty.  An 
interpreter is not free to adopt a reading that woul d result in reducing whole clauses or paragraphs of a 
treaty to redundancy or inutility."16 
 25. Based on the text of Articles 11.3 and 11.4, as clarified by the Appellate Body, Argentina had 
a right to termination of the anti-dumping order on OCTG from Argentina.  The United States could 
continue the measure only by making findings cons istent with Article 11.3 of the Anti-Dumping 
Agreement.  The temporal limitations contained in Articles 11.3 and 11.4 would indeed be rendered 
meaningless if a Member has limitless opportunities to  satisfy the obligations to develop the necessary 
evidentiary basis to make these findings.  
26. The Panel can avoid this situation by properl y interpreting the terms of Articles 11.3 and 11.4 
so that the substantive and temporal requirements therein have meaning.  The Panel should find that, 
on the facts of this case, the United States acted inc onsistently with its obligations under Article 11.3 
and 11.4 by basing its 2005 likelihood determinatio n on factual evidence that USDOC developed in 
2005, and which was not developed during the original  sunset review in 2000.  Similarly, as for the 
USDOC's statement that it also relied on its position  from the original sunset review that the post-
order volume decline created a basis for inferring that  dumping would be likely to continue or recur, 
this was an insufficient basis to support the 2000 likelihood determination and also cannot support the 
2005 likelihood determination in violation of Article 11.3.  27. The Panel also can assist in  the resolution of this disput e by exercising the discretion 
conferred by the Agreement to issue a suggestion th at the United States terminate the measure at issue 
in this case, which Argentina addresses in section VII of this Second Submission. 
 
III. ASSUMING ARGUENDO THAT USDOC CAN RELY ON AN EVIDENTIARY BASIS 
FIRST DEVELOPED IN 2005, THE US DOC SECTION 129 DETERMINATION 
FAILED TO BRING THE UNITED STATES INTO COMPLIANCE WITH THE 
RULINGS OF THE DSB AND IS ALSO INCONSISTENT WITH US WTO 
OBLIGATIONS 
 
28. Assuming arguendo  that USDOC can rely on an evidentiary basis first developed in 2005 to 
satisfy the Article 11.3 obligation, the USDOC Section 129 Determination failed to bring the 
United States into compliance with the rulings of the DSB, and it is also inconsistent with US WTO 
obligations for the reasons set forth below.  
                                                     
 
15 Vienna Convention on the Law of Treaties, Ar t. 31, adopted 22 May 1999, 1555 U.N.T.S. 331. 
16 Appellate Body Report,  United States – Standards for Reformulated and Conventional Gasoline , 
WT/DS2/AB/R, adopted 20 May 1996, at 23; Appellate Body Report, United States – Import Prohibition of 
Certain Shrimp and Shrimp Products , WT/DS58/AB/R, adopted 6 November 1998, para. 121. WT/DS268/RW 
Page C-10  
 
  A. THE STATED BASES FOR THE USDOC SECT ION 129 DETERMINATION  AND THE PANEL'S 
STANDARD OF REVIEW 
 
29. The United States asserts that the Section 129 Determination "was based on the Argentine 
respondents' submissions, their financial stat ements, and on independe nt sources of data."17  The US 
First Submission states that USDOC's "country-wide"  likelihood determination in 2005 rests on the 
following:  
• a finding that Acindar, a minor Argentine producer was "likely dumping during the 
sunset period," from which USDOC inferred that Acindar would likely dump in the future if the order were revoked;
18  
• a lack of any findings whatsoever regarding Siderca19, the dominant Argentine OCTG 
producer, the only company ever investigated during the sunset period, and the only company for which a dumping margin (the ma rgin from the original investigation) 
was calculated; and 
• an inference that dumping would be likely  to continue or recur based on the post-
order decline in OCTG imports to the United States.
20 
 
The United States repeats several times in its Firs t Submission that "Article  11.3 'does not expressly 
prescribe any specific methodology for investigat ing authorities to use in making a likelihood 
determination in a sunset review.'"21 
 
30. This Panel must determine whether the USDOC Section 129 Determination based on these 
findings and the underlying analysis brings the United States into compliance with its WTO 
obligations.  In doing so, the Pa nel must conduct a thorough and searching review of the USDOC's 
analysis and findings.  This is so not only because of the Panel's general ob ligations under Article 11 
of the DSU, but also because of the nature of the Ar ticle 11.3 obligation.  As stated by the Appellate 
Body in its recent report: 
 
The standard of review to be applied in a given case is also a function of the substantive provisions of the specific covere d agreements that are at issue in the 
dispute.
22 
31. This Appellate Body clarifica tion of the relevant standard of review, made in the context of 
an appeal arising from an Article 21.5 Panel's d ecision affirming a US Section 129 Determination, 
specifically spoke to the considerations when assess ing the authorities' determinations "as to likely 
future occurrences."23  As is clear from the text of Article 11.3, the question of "likely future 
occurrences" is similarly at the heart of the Ar ticle 11.3 determination.  Also, the Section 129 
Determination under review relies heavily on inferen ces regarding future occurrences.  These factors 
                                                      
17 US First Submission, para. 26. 
18 See US First Submission, paras. 40-42; see also  Section 129 Determination:  Final Results of Sunset 
Review, Oil Country Tubular Goods from Argentina, A-357-810 (16 Dec. 2005) ("USDOC Section 129 
Determination") at 7, 8, 10 (ARG-16). 
19 US First Submission, paras. 2, 44, 74, 82. 
20 USDOC Section 129 Determination at 11 (ARG-16).  
21 US First Submission, para. 36 (citing Appellate Body Report, US – Corrosion-Resistant Steel Sunset 
Review,  para. 123);  see also US First Submission, paras. 40, 46. 
22 Appellate Body Report, United States – Investigation of the International Trade Commission in 
Softwood Lumber from Canada, Recourse to Article 21.5 of the DSU , WT/DS277/AB/RW, circulated on 
13 April 2006, para 95 (" US – Lumber ITC Investigation (Article 21.5 – Canada) "). 
23 Appellate Body Report, US – Lumber ITC Investigation (Article 21.5 – Canada) , para. 96.   WT/DS268/RW 
 Page C-11 
 
 
  require the Panel to be especially careful in revi ewing the establishment of the facts in this case, 
USDOC's assessment of those facts,  and the inferences from the facts. 
 32. As the Appellate Body summarized in US – Lumber ITC Investigation (Article 21.5 – 
Canada) , a panel reviewing a determination of "likel y future occurrences" must determine whether 
the investigating authority has provided "a reasoned and adequate explanation"  of:  (a) how individual 
pieces of evidence can be reasonably relied on in support of particular in ferences, and how the 
evidence in the record supports its factual findings;  (b) how the facts in the record, rather than 
allegation, conjecture, or remote possibility, support and provide a basis for the overall threat of injury 
determination;  (c) how its projections and assump tions support a showing of likelihood; and (d) how 
it examined alternative explanations  and interpretations of the eviden ce and why it chose to reject or 
discount such alternatives in coming to its conclusions.
24  
 33. Finally, the Appellate Body observed that:  
[T]he injunction that panels should not subs titute their own conclusions for those of 
the competent authorities does not mean that  all a panel needs to do in order to 
comply with its duties when reviewing a de termination is to consider whether the 
investigating authority's findings or conc lusions appear to be "reasonable" or 
"plausible" in the abstract.  To the contra ry, a panel can assess whether an authority's 
explanation for its determina tion is reasoned and adequate only if the panel critically 
examines that explanation in the light of the facts and the alternative explanations that 
were before that authority.
25 
34. As is explained in sections B-D below, the USDOC Section 129 Determination cannot be 
upheld under this standard of review.  Also, the United States seeks to insulate the volume basis from 
challenge in this compliance proceeding by asserti ng that "Argentina has offered no argument as to 
why the finding regarding import volumes, which is an  incorporation of an element of the original 
determination, is a measure taken to comply."26  This argument is baseless and is addressed in 
Section D.2 below.  
B. USDOC'S FINDINGS REGARDING ACINDAR ARE INCONSISTENT WITH US WTO 
OBLIGATIONS 
 
35. In the Section 129 Determination, the USDOC stated that "we find that Acindar likely was 
dumping subject OCTG during the original sunset period."27  The US First Submission confirms that 
on this basis, the USDOC concluded that Acinda r was likely to dump if the order were revoked.28 
 36. There are serious flaws with the USDOC's an alysis and conclusions regarding Acindar, and 
the arguments advanced by the United States in suppor t of the determination are without any merit.  
First, the USDOC employed a legally deficient standard  in reaching its conclusions  that is inconsistent 
with requirements of the Anti-Dumping Agreement.  Such speculation about the past sales is not 
permissible.  Second, none of the USDOC's analys is and conclusions  constitute positive evidence of 
"likely" dumping, whether in the past or in the future.  Third,  the conclusions reached by USDOC 
cannot be considered unbiased and objective.   
                                                     
 
24 Appellate Body Report, US – Lumber ITC Investigation (Article 21.5 – Canada) , para. 98.  
25 Appellate Body Report, US – Lumber ITC Investigation (Article 21.5 – Canada) , para. 99.  
26 US First Submission, para. 34. 
27 USDOC Section 129 Determination at 7 (ARG-16). 
28 US First Submission, para. 48. WT/DS268/RW 
Page C-12  
 
  1. USDOC "Likelihood" Determination Based on a "Likelihood" of Dumping Finding 
Regarding Past Sales Was Inconsistent With Article 11.3 of the Anti-dumping 
Agreement 
 
37. In its First Submission, Argentina explaine d that the USDOC employed an incorrect legal 
standard in assessing information regarding Acindar.   The US First Submission concedes, as it must, 
that its finding regarding Acindar was one of lik ely past dumping: "that Acindar likely was dumping 
during the [original sunset review] period."
29   
 38. Also, the US First Submission reveals that this attempt to establish likely past dumping was 
the objective of requesting cost data from the par ties.  Referring to the purported unreliability of 
Siderca's data, the United States explained that th e data problems frustrated the attempts to make 
"findings regarding specific instances of likely dumpi ng by Siderca during the original sunset review 
period."
30 
 
39. Thus, it could not be clearer that USDOC ma de findings about what was "likely" to have 
happened during the sunset review period (1995 to 2000) , and then inferred likely dumping from what 
was likely to have happened.  As the US First Submission explains: 
 Commerce examined whether [the Argentine exporters ] would likely dump in the future using past 
data as a predictor. . . . If Acindar was likely dumping while an order was in place, then, in the 
absence of evidence to the contrary, it would likely  continue to do so if the order were revoked.
31 
 40. This is very different from the Appellate B ody's recognition in previous cases that dumping 
margins  could be relevant and coul d have probative value for purpose of a determination under 
Article 11.3.
32  There is a material difference between actual dumping  in the past and the concept the 
United States describes as " likely " past dumping.   The former is subject to the disciplines of Article 2 
and Article 9 (in the event of an administrative re view).  The latter does not even exist under the Anti-
Dumping Agreement.  41. Despite the frequent repetition by the Unite d States that "no methodology is prescribed" in 
Article 11.3 reviews,
33 Article 11.3 is not without disciplines.  The word "dumping" has a specific 
meaning in Article VI of the GATT 1994 and in the Anti-Dumping Agreement, and the Appellate 
Body already has clarified that the meaning of "dum ping" 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 
                                                     
 
29 US First Submission, para. 41. 
30 USDOC Section 129 Determination at 9 (ARG-16). 
31 US First Submission, para. 42. 
32 See, e.g. , Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 208. 
33 US First Submission, paras. 36, 40, 46.  WT/DS268/RW 
 Page C-13 
 
 
  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).34 
42. Consequently, if USDOC is going to infer likely "dumping" from some past action, that past 
action must be probative of "dumping," which is a defined term under the Anti-Dumping Agreement. 
 
43. The United States, aware of past cases in which it has been reminded of the consistent 
meaning of "dumping" throughout the Anti-Dumping Agreement, stresses that it is not calculating a dumping margin .
35  The Panel should reject this position firmly .  It is clear what the USDOC is doing 
here:  knowing that it has no evidence of actual  dumping, and knowing that it cannot calculate a 
margin consistently with Article 2, it seeks to co mply with Article 11.3 by doing another type of 
comparison (a comparison of export prices to observed market prices in the country of destination) to 
conclude that that comparison is sufficient to show "likely past dumping," and then repeat the statement that Article 11.3 prescribes no methodology.  The flaw is that the approach disregards the 
meaning of the term "dumping" for purposes of the Anti-Dumping Agreement.  
44. Also, the flimsy nature of the likely p ast dumping finding invalidates the inferences that 
USDOC draws from the finding.  In US – Corrosion-Resistant Steel Sunset Review , the Appellate 
Body explained that  that "[i]n view of the use of  the word 'likely' in Article 11.3, an affirmative 
likelihood determination may be made only if the evidence demonstrates that dumping would be 
probable if the duty were terminated – and not simply  if the evidence suggests that such a result might 
be possible or plausible."
36 
 
45. The Appellate  Body endorsed the view that  "[t]he requirement to make a 'determination' 
concerning likelihood therefore precludes an investigating authority from simply assuming that likelihood exists."
37  In conducting this inquiry, "an investig ating authority must have a sufficient 
factual basis to allow it to draw reasoned and ade quate conclusions concerning the likelihood of such 
continuation or recurrence.38  The Section 129 Determination does not satisfy the standards of 
Article 11.3.  46. The United States also claims, incorrectly, that "there were no administrative reviews 
conducted" in the case, so that "Commerce had to use available data gathered during the Section 129 
proceeding to determine whether dumping likely occurred during the period . . . ."
39  The statement is 
factually incorrect because, as the Panel knows, successi ve reviews of Siderca we re initiated, but none 
led to a dumping calculation because Siderca dem onstrated that it did not export OCTG to the 
United States during the relevant period.40  This passage also demonstr ates the flawed approach to 
Article 11.3:  rather than inferring from the absen ce of reviewable shipments that there may be no 
positive evidence of dumping or likely dumping, the United States explains that USDOC "had to use 
available data" to determine whether dumping occurred. 
 47. The United States finds it "telling that Argentina never argues that Acindar did not dump its product during the period, only that there had not yet been a review of Acindar . . . ."
41   There is 
                                                      
34 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 109. 
35 US First Submission, para. 46. 
36 Appellate Body Report, US - Corrosion-Resistant Steel Sunset Review , para. 11. 
37 Appellate Body Report, US - Corrosion-Resistant  Steel Sunset Review , para. 114.  After quoting this 
passage, the Appellate Body stated tha t:  "The Panel's description of the ob ligations of investigating authorities 
in conducting a sunset review closely resembles our own, and we agree with it." Id., para. 115. 
38 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 114. 
39 US First Submission, para. 47. 
40 See Argentina's first written submi ssion (15 Oct. 2003) from the or iginal panel proceeding at 
paragraphs 21-22.   
41 US First Submission, para. 48. WT/DS268/RW 
Page C-14  
 
  nothing "telling" at all.  Argentina understands  that "dumping" is a defined term under the Anti-
Dumping Agreement, and that no Member can say whether a company was dumping or not during a particular period without determining whether the essential elements of that term have been satisfied.  
The fact remains; there was no evidence  of "dumping" by Acindar during the sunset period. 
 2. The Evidence Developed By USDOC Does No t Constitute Positive Evidence of Likely 
Dumping and USDOC's Conclusions Cannot Be  Considered Unbiased or Objective  
 
48. Argentina explained in detail the flaws w ith USDOC's approach in its First Submission.
42  
The USDOC relied on specific import prices of Acindar's OCTG based on US Customs and Border 
Protection data.  These prices were considered by  the USDOC to be too low when compared to 
observed selling prices in the US market, as reported in a publication known as Preston Pipe & Tube Report.
43 
 49. The USDOC's comparison of FOB export pri ces to US market selling prices for groupings of 
OCTG  does not constitute an objective examination of whether dumping occurred, and is not positive 
evidence to support a WTO-consistent determination that dumping would be likely to continue or 
recur in the future.  50. The USDOC's approach in this regard is not  in accord with determinations of "dumping" 
under Article 2.  As Argentina explained in its Fi rst Submission, and which points the United States 
failed to rebut:   
 
First
, Article 2 does not define dumping in terms of a comparison between export 
prices and market prices prevailing in the market of the importing country .  It is a 
basic principle of Article 2 – and Article VI of GATT 1994 – that dumping is defined 
by the comparison of the export price to a nor mal value in the country of export (or to 
another export price, or to a constr ucted value).  The USDOC provides no 
explanation why it is probative evidence of "likely" dumping. 
Second , USDOC's comparison of Acindar's US shipments to prevailing US market 
prices did not involve any product-speci fic comparison.  Rather, the USDOC 
compared prices for specific Acindar transactions to prices of "carbon casing, 
welded" as reported by Preston Pipe & Tube  Reports.  However, that publication does 
not report prices by specific size of pipe, and it does not discriminate between plain end and casing that is threaded and coupled.  As Siderca explained in its responses, 
these variables affect cost and price, a nd any comparison that does not account for 
these differences is suspect and there was no control for any of the physical 
characteristics of the products being compar ed which (as explained in submissions by 
Siderca) affect the price and cost of OCTG products. 
Also, the prices reported in Preston Pipe & Tube Report are prices to the final 
customers in the United States; that is, they are prices reported on the basis of a specified delivery point in the United Stat es.  The prices that USDOC obtained from 
USCBP presumably are stated on a different basis; most likely, FOB port of export, 
which in the case of Acindar would be Arge ntina.  The record of the Section 129 
proceeding contains no indication that US DOC exercised any care to eliminate the 
obvious distortion that would be implicit in any such comparison.
44   
                                                      
42 Argentina's First Submission, paras. 110-117. 
43 USDOC Section 129 Determination at 7 (ARG-16). 
44 Argentina's First Submission, paras. 112-114.  WT/DS268/RW 
 Page C-15 
 
 
  The United States does not answer these specific arguments. 
 51. Given the importance assigned by the United St ates to this comparison performed by the 
USDOC – it is the basis for the conclusion that Aci ndar "likely" had dumped, which the United States 
explains was one of the bases for the country-wid e determination of likely dumping – the Panel will 
have to review the comparison in detail.  Argen tina has not seen the details of this comparison 
because it is contained in documents that the USDO C has designated as confidential under its system.  
Thus, the documents are available only to the au thorized legal representatives involved in the 
proceeding, and to the officials of the United Stat es Government.  As the United States continues to 
rely on this comparison as a basis for its conclusi on that Acindar likely was dumping, Argentina will 
ask that the Panel request under Article 13 of the DSU that the United States provide the necessary 
documents for review by the Panel and Argentina.
45 
 52. In US – Lead and Bismuth II , the Panel affirmed that it had the right to seek, and the 
United States had an obligation to provide, data designated as business proprietary information in a 
proceeding before the US Department of Commerce.   Although (based on the facts of that particular 
case) the Panel found that it did not need to request this information, it left no doubt about the law on this issue:  
…the United States asserted that such information "was submitted … as business proprietary information, and USDOC is  therefore precluded by US law from 
divulging it." 
We note that, by virtue of Article 13 of  the DSU, a panel has authority to seek 
information and technical advice from "any individual or body" it may consider appropriate, or from "any relevant source."  The "comprehensive nature" of this 
authority was emphasized by the Appellate Body in United States - Shrimp .  In 
Canada - Measures Affecting the Export of Civilian Aircraft , the Appellate Body 
explicitly stated that a panel has th e authority to seek information from " any Member, 
including a fortiori a Member who is a party to a dispute before a panel." 
Thus, if we consider it appropriate, there is no doubt that we have the authority to 
request information…from the United States.  In particular, we are not persuaded that 
the proprietary nature of the informa tion precludes us from requesting (or the 
United States from submitting) the informa tion, since it is open to the Panel to 
implement special procedures to protect proprietary information.
46 
53. Moreover, there was no factual basis for inferring that Acindar was "likely dumping" during 
the original sunset period.  Acindar was never inv estigated during the original investigation, and the 
company had no prior history of dumping.  As Acindar explained, it is principally a producer of steel 
long products (e.g., bars, wire rod, structural steels), and the company did not even produce any 
OCTG until 1998, more than half-way through the sunset review period.47  Acindar was never a 
                                                      
45 The relevant documents are provided in non-confidential summary form as ARG-18 and ARG-23.  
Argentina and the United States atte mpted to reach an agreement that would allow these documents to be 
provided to the Panel without resort to DSU Article 13 , but the parties could not reach agreement.  Argentina 
stresses the importance of the need for th e Panel to review these documents.  This is necessary in order to avoid 
questions later as to whether the Panel fulfilled its obliga tions under DSU Article 11.  Argentina also intends to 
file under separate cover its request that the Panel reque st, pursuant to its authority under DSU Article 13, that 
the United States provide these documents to the Panel. 
46 Panel Report, United States – Imposition of Countervailing Duties on Certain Hot-Rolled Lead and 
Bismuth Carbon Steel Products Originating in the United Kingdom , WT/DS138/R and Corr.2, adopted 
7 June 2000, as upheld by the Appellate Body Repor t, WT/DS138/AB/R, paras. 6.4-6.7 (emphasis added). 
47 Acindar's Response to Questionnaire (30 Nov. 2005) at 1 (ARG-14). WT/DS268/RW 
Page C-16  
 
  significant producer of OCTG, and its OCTG pr oduction was inconsequential in terms of the 
company's total production, representing less than one per cent of Acindar's total production during 
this time.  USDOC gave no consideration to these factual statements.  54. Finally, the United States completely distorts  Argentina's position with respect to its use of 
financial statements in the Section 129 Determinati on, attributing to Argentina the view that the 
financial statements should not be used "because th ey are not probative of the state of the OCTG 
industry."
48    Financial statements, of course, are st andard fare in anti-dumping cases, and Argentina 
has no reason to oppose the legitimate use  of financial statements.  But, as explained in Argentina's 
First Submission, the USDOC has distorted and misused  the information from the financial 
statements in this case.  USDOC attributes statem ents about Acindar's gene ral financial performance 
to a product, OCTG, that never comprised mo re than 0.005 of the company's operations.49  USDOC 
ignores information from Acindar's financial statem ents that showed a profitable tubular products 
division50, considering only the financial statements from the years corresponding to low profits in the 
OCTG industry, while ignoring the financial statem ent at the end of the period that specifically 
discusses the turnaround in the sector  that USDOC says does not exist.51 USDOC also ignores 
Siderca's discussion of the financial statements to explain the volume decrease and the reasons why 
dumping was not likely to continue or recur.52  This is not an objective assessment of the information 
provided in the companies' financial statements.  
3. USDOC's Reference to Acindar's 60 per cent Margin 
 
55. The United States claims in the first paragra ph of its First Submission that its decision must 
be in conformity with its WTO obligations; after all, Acindar was found to be dumping in the review 
examining the sixth  year after the imposition of the measure.
53  There are a number of problems with 
this statement, and the underlying logic demonstr ates that the United States still does not understand 
its Article 11.3 obligations.   
 56. First, there is no reference to the review of Acinda r's post-sunset period shipments in the 
Section 129 Determination .  The importance of this point ca nnot be overstated:  even though the 
USDOC developed a new and different evidentiary b asis in 2005 for its Section 129 Determination, it 
did not even mention its review of Acindar.  And,  of course, the fact was never mentioned in the 
original 2000 sunset review, because the ev ent had not even occurred until March 2003.
54  Under no 
possible view of the record is this alleged ev idence part of the "measure taken to comply." 
 57. The United States knows all of this, which pr esumably is why the references in its First 
Submission are not tied to the record of the Section 129 proceeding.  The United States hopelessly 
contradicts itself.  It tells the Panel that it unde rstood that it had to confine itself to the 1995-2000 
period
55, and it, in fact, did confine its fact-finding to th is period.  Then the United States justifies its 
decision to this Panel by referring to this event, which unquestionably occurred after  the established 
period.  58. It is also wrong to say that this 2003 ev ent establishes that Acindar was "dumping" for the 
purposes of a sunset review.  As stated by the A ppellate Body, an authority relying on a dumping 
                                                     
 
48 US First Submission, para. 49. 
49 Argentina's First Submission, paras. 116, 119;  see also  ARG-28 (Letter from Acindar to USDOC). 
50 Argentina's First Submission, para. 120. 
51 Argentina's First Submission, paras. 99, 101. 
52 Argentina's First Submission, paras. 102 – 106; see also  discussion in Section III.C. 
53 US First Submission, paras. 1, 41. 
54 Oil Country Tubular Goods Other Than Drill Pipe , 68 Fed. Reg. 13,262 (19 Mar. 2003) (US-3). 
55 US First Submission, para. 30.  WT/DS268/RW 
 Page C-17 
 
 
  margin in an Article 11.3 review must ensure that the dumping margin complies with Article 2.56  
Even the most cursory review of the 2003 decision shows that the United States would not be able to show conformity with Article 2.  The USDOC cal culated Acindar's constructed value by adding 
Siderca's profit margin to Acindar's cost, in clear violation of Article 2.2.1.  Also, as the European Communities points out in its Third Party Submissi on, the calculation may have used impermissible 
"zeroing".
57 
 59. In fact, the US decision to resort to this  tactic highlights the lack of positive evidence 
supporting its determination to continue the measu re.  Accepting the US view would mean that a 
Member could determine that dumping is likely to con tinue or recur without an evidentiary basis, and 
then "comply" with its obligations by making a subsequent finding that dumping occurred.  That 
cannot be the meaning of Article 11.3.    60. Finally, if USDOC were to use post-2000 info rmation, principles of objectivity and fairness 
would require it to use all post-2000 information related to Acindar.  The record contains unrebutted 
information that Acindar stopped producing OCTG in 2001.  If USDOC is going to use post-2000 
information for its determination, the fact that Acindar no longer produced OCTG after 2001 is 
positive, probative information that the USDOC would have to consider in making its determination 
whether the expiry of the duty would be likely to lead to continuation or recurrence of dumping.  
C. USDOC'S FINDINGS REGARDING SIDERCA ARE INCONSISTENT WITH US WTO 
OBLIGATIONS 
 
61. With respect to the information submitted by Siderca, the United States answers that it was 
"not germane to the ultimate determination" and im plies that it therefore could not be inconsistent 
with Article 11.3.58  The US statement is based on two stated reasons:  1) that USDOC made no 
findings regarding Siderca; and 2) because an Ar ticle 11.3 determination is  made on "an order-wide 
basis," the United States implies that it alread y had a sufficient basis for its "country-wide" 
determination (the finding regarding Acindar's likel y past dumping, and the inference arising from the 
volume decline) so that it was free to disregard Siderca's information.59 
 
62. These explanations are not convi ncing, and should not be accepte d by the Panel.  First, the 
information provided by Siderca certainly was "g ermane" to the Article 11.3 determination.  
Information provided by the major producer in the country is, by definition, germane to a "country-
wide" determination of whether future  exports are likely to be dumped.60 
 
63. Argentina invites the Panel to look closely at  the information that Siderca submitted to the 
USDOC in response to the questionnaire.61  Siderca provided two types of information:  1) the cost 
                                                      
56 Appellate Body Report, US – Corrosion Resistant Steel Sunset Review , paras. 109, 127. 
57 See Written Observations by the European Communities , 26 April 2006, para. 18. 
58 US First Submission at 44. 
59 US First Submission at 44. 
60 The factual record developed by USDOC shows without a doubt that Siderca was the major OCTG 
producer.  The Argentine Steel Chambre indicated that the only OCTG producer it could confirm during the 
period was Siderca.  See ARG-18, Appendix 1 (Letter from Embassy of Argentina to USDOC).  Siderca's 
response indicated that it sold appr oximately 300,000 metric tons of OC TG each year during the five year 
period, while Acindar explained that it had not produced any OCTG until 1998, that it produced OCTG for only 
a brief period and only a small quantity  specific products neve r amounting to more than  5,000 metric tons a 
year, and that it ceased pr oduction of OCTG in 2001.  See ARG-14 and ARG-28.  This is consistent with, and 
provides relevant context for, Siderca's statement in th e 2000 review that "[t]o Siderca's knowledge, there is no 
other producer of OCTG in Argentina."  Substantive Response of Siderca to USDOC's Initiation of Sunset 
Review of the AD Order on OCTG from Argentina (2 Aug. 2000), at 3 (ARG-9).  
61 Siderca's Response to Questionnaire (ARG-15). WT/DS268/RW 
Page C-18  
 
  information in response to the USDOC's questions; and 2) information regarding its commercial and 
production operations from its financial statements.  The cost data was germane because it is the 
information that the USDOC chose to develop; that is, it is part of the evidentiary basis that the 
USDOC chose to develop to make its Section 129 De termination.  Argentina agrees that it was not the 
best line of inquiry for the USDOC to follow, or the best evidentiary basis for what is required to be a 
prospective determination of likely dumping.  The United States explains that it was trying to 
determine whether dumping occurred in the past, duri ng the original sunset period.  However, as 
Argentina and several of the Third Parties have pointed out, the USDOC asked the exporters for 
information that was only indirectly relevant to a de termination of "dumping" as  that term is defined 
in the Anti-Dumping Agreement.
62 
 
64. 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.63  In addition, Siderca explained to the 
USDOC that the data supported the view that Sider ca would not be likely to dump in the future, as it 
showed that Siderca had achieved certain efficienci es even in difficult market times and was able to 
sell its products at above its cost of production.64  In other words, this was positive evidence that the 
major Argentine producer was able to sell at prices that exceeded its costs, and that its production 
efficiency had increased throughout the sunset peri od.  The evidence tended to disprove the notion 
urged by the US industry in the Section 129 dete rmination that Siderca was a "global dumper".65 
 65. Simply because the information is not what th e authority 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.  As Argentina pointed out in its First Submission, 
there were several problems with USDOC's c onclusions that Siderca's data was flawed.
66  T h e  
United States responds to none of these in its First Submission.  Its only defen ce is offered in response 
to Argentina's claim that the Unite d States also violated Article 6.6, where it explains that it had 
sufficiently explained in the three paragraphs of the Section 129 determination its basis for finding the 
flaws in Siderca's data.  But this is not an answer to  the specific deficiencies raised in Argentina's First 
Submission.  It is simply a dodge, and a rest atement of what the USDOC has already said.67 
                                                      
62 See Third Party Submission of  China, paras. 22-25; Third Party Submission of Mexico, paras. 4-5; 
Written Observations by the European Communities, para. 17.  
63 The United States claims in its First Submission that "none of the Argentine respondents provided 
Commerce with actual cost data for the period of review, stating that they had not retained it.  Siderca had 
provided estimated data by using one month's worth of its costs of production for October 2005 and extrapolated 
what costs during the five year  period would have been."  US First Submi ssion, para. 39.  This is not an accurate 
description of what the major producer, Siderca, did in the Section 129 proceeding.  As explained it Siderca's response to USDOC's questionnaire (ARG-15), which included as Attachment 4 a detailed description of 
Siderca's cost methodology.  Siderca provided actual cost data for the 1995- 2000 period.  This actual cost data 
was based on:  (1) Operational Cost Reports for the major production lines involved in OCTG production for June 1995 / 1996 / 1997 / 1998 / 1999 /2000 (as Siderca explained, June is the last month in the company's cost 
budgeting period, so that the June reports contained cumu lative cost data for an entire year); (2) all fixed costs 
that were taken directly from the audited financial stat ements for each year; (3) a ll general and administrative 
expenses were taken directly from the audited financial statements for each year; and (4) all financial expenses 
were taken directly from the audited financial statements  for each year.  It is simp ly incorrect for the United 
States to state that Siderca did not provide "actual cost data for the period of review."  See Siderca's Response to 
Questionnaire, at pages 2-6 and Attachments 2 and 4 (ARG-15).   
64 Siderca's Response to Questionn aire at pages 2-10 (ARG-15). 
65 Letter from Skadden, Arps, Slat e, Meagher & Flom LLP to USDO C, 2 Dec. 2005, at 4 (Public 
Version) (ARG-27). 
66 Argentina's First Submission, paras. 75-95. 
67 The relevant document is provided in non-confidential summary form as ARG-21.  As noted above, 
Argentina and the United States could not reach an agreem ent that would allow these documents to be provided 
to the Panel without resort to DSU Article 13.  Argentina stresses the importance of the Panel to review these  WT/DS268/RW 
 Page C-19 
 
 
   
66. With respect to the other information th at Siderca provided (commercial and production  
information based on its financial statements), th e United States repeats the approach of the USDOC 
Section 129 Determination.  It says nothing.  Argentin a also explained that certain of that information 
contradicted the USDOC's finding that the record contained no in formation of a turnaround in the 
OCTG market.68  Again, the US First Submission offers no r esponse.  It is incomprehensible that such 
statements and information could be deemed "not germane" to a country-wide analysis of whether 
dumping is likely to continue or recur.  67. The Panel should also be concerned with the abu se of the "country-wide" concept.  It is clear 
from the Section 129 Determination and the US Firs t Submission that the "country-wide" nature of 
the Article 11.3 determination is being used as an excuse to avoid doing a substantive analysis of the 
data.  According to the United States, it need not  consider the information provided by the major 
producer of OCTG in Argentina because it has devel oped, in its view, an evidentiary basis that a 
marginal OCTG producer "was likely to have dumped during the period," a determination which is, at 
best, a "back-of-the-envelope" guess, based on genera l data.  Also, the inference that the USDOC 
draws from the volume decrease is used to support the "country-wide" determination and to exclude 
the information related to the principal produ cer, Siderca, even though that information was 
submitted, in part, to explain the reasons for  the decrease in volume.  The US position simply does 
not add up, and it must be rejected by this Panel.  
68. In the end, the United States essentially ta kes the position that 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 evidence with respect to the dominant and only relevant 
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 necessary for continuing the measure on the basis of a determination supported by positive 
evidence have not been satisfied.  
D. USDOC'S INFERENCE REGARDING LIKELIHOOD OF DUMPING BASED ON THE POST-
ORDER VOLUME DECLINE IS INCONSISTENT WITH US WTO OBLIGATIONS 
 
1. The USDOC Failed in 2000, and Again in 2005, to Examine the Reason for the Post-
Order Volume Decline So as to Support it s Inference Regarding Likelihood of Dumping 
 69. Apart from the finding of likely past dumping for Acindar, the only other basis for the Section 
129 Determination is USDOC's restatement of th e inference it drew in 2000 from the post-order 
decrease in Argentine exports.  USDOC's Secti on 129 Determination contains the following two 
statements regarding volume:  
[W]e solicited and considered inform ation and argument from domestic and 
respondent interested parties for the same period at issue in our original sunset 
review, 1995 – 2000.  Based upon this information and argument, as well as findings 
on import volumes during the 1995 – 2000 from the original sunset review, we 
                                                                                                                                                                    
 
documents in order to avoid questions later whether the Panel fulfilled its obligations under DSU Article 11.  
Argentina also intends to file under separate cover its re quest that the Panel request, pursuant to its authority 
under DSU Article 13, that the United States  provide these documents to the Panel. 
68 Argentina's First Submission, para. 99 (referring to USDOC Section 129 Determination (ARG-16) 
at 9-10). WT/DS268/RW 
Page C-20  
 
  continue to find that revocation of the order would be likely to lead to continuation or 
recurrence of dumping.
69 
. . . 
 
In assessing likelihood, we also rely on our previous finding rega rding the volume of 
imports of subject merchandise for the peri od before and the period after the issuance 
of the anti-dumping duty order.  In the orig inal sunset review, we found that after 
imposition of the order, import volumes signi ficantly decreased from pre-order levels.  
[citations omitted].  Declining import volumes after, and apparently resulting from, imposition of an anti-dumping duty order indi cate that exporters would need to dump 
to sell at pre-order levels.
70 
70. This is the extent of the development of the basis for USDOC's reliance on volume as a basis 
for the USDOC Section 129 Determination.  Both  passages demonstrate that USDOC's inference 
based on the volume decline is part of the Section 129 Determination.  With each reference to the volume, USDOC specifically states that the USDOC is relying on the "previous finding" (i.e., in the 
2000 sunset review).  These passages leave no doub t that the USDOC did not develop any further 
factual bases for its inference.  71. To underscore this point, the United States asser ts in its First Submission that it was under no 
obligation to examine the reas on for the decline in volume: 
 
[T]he Panel expressly declined to make any fi ndings regarding the decline in volume.  
Therefore, Commerce was under no obligation to develop further facts, or further 
justify, the finding it made with regard to the volume decrease.
71  
72. This view is also explicit in the USDOC S ection 129 Determination, which seeks to insulate 
the volume inference from review in the complian ce proceeding based on this Panel's decision to 
refrain from deciding the issue in its first review.72  Thus, in 2005 as in 2000, the USDOC again failed 
to go behind the volume decline and examine furthe r the reasons for the reduction in OCTG import 
volume after the imposition of the order.  73. As an initial matter, the fact that the Pane l may have exercised judicial economy on an issue 
does not mean that the USDOC's finding was WT O-consistent.  Indeed, the Appellate Body 
jurisprudence existing at the time showed the cont rary – it was legally insufficient under Article 11.3 
for the USDOC to have simply presumed like lihood based on the post-order volume decline.
73 
 74.  With respect to the probative value of  declining import volumes for the purposes of an 
Article 11.3 determination, the A ppellate Body has made clear that  the authority must undertake "a 
case specific analysis of the factors behind a cessation of imports or a decline in import volumes":  
 
[T]he second and third scenarios in Section II.A.3 [of the Sunset Policy Bulletin] relate to the situation where there is no dumping  (either because imports ceased or because dumping was eliminated after th e duty was imposed).  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 
                                                     
 
69 USDOC Section 129 Determination at 1 (ARG-16). 
70 USDOC Section 129 Determination at 11 (ARG-16). 
71 US First Submission, para. 33. 
72 USDOC Section 129 Determination at 2 n.4 and 6 n.12 (ARG-16). 
73 Appellate Body Report, US - Corrosion-Resistant Steel Sunset Review , para. 177.  WT/DS268/RW 
 Page C-21 
 
 
  of the market-place or strategies of exporters, rather than by the imposition of the 
duty alone.  Therefore, a case-specific analysis of the factors behind a cessation of 
imports or a decline in import volum es (when dumping is eliminated) will be 
necessary to determine that dumping will recur if the duty is terminated .74  
75. The Appellate Body reaffirmed in US - OCTG from Mexico  that in the context of declining 
volumes, it is insufficient to rely on presumptions or conjecture as to a company's ability to ship to the 
US market without dumping:  
[I]f the dumping had ceased soon after the is suance of the order, and there was no 
dumping or there were no imports for a subs tantial period before the sunset review, 
the investigating authority will need credible  evidence to come to the conclusion that 
dumping will "recur" if the anti-dumping duty order is revoked. A respondent party 
may have the responsibility to introduce relevant evidence in its favour, but the 
investigating authority also has a duty to seek information to ensure that its 
determination rests on a sufficient ev identiary foundation. An affirmative 
determination cannot rest merely on a presumption, as envisaged under scenario 
(b) or (c), that the cessation of dumping or of imports was due solely to the anti-dumping duty order.
75 
76. The failure of USDOC to analyze the info rmation relating to the volume decline simply 
cannot be reconciled with the Appellate Body's ad monishment 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 dumpi ng will recur if the duty is terminated."76  The Appellate 
Body in Mexico OCTG  reaffirmed this point expressly and again cautioned against the "mechanistic" 
use of presumptions:  
The underlying presumption in scenario (c) is that, if import volumes had declined 
significantly, it was due solely to the anti-dumping duty order, and that, if the order 
were revoked, the company concerned would resort to dumping to increase its import 
volumes. Such a presumption cannot be the sole basis for a determination of "recurrence" of dumping. A company's strate gy and ability to increase or decrease 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. Therefore, unless all relevant factors are taken into 
account, there may not be an objective eval uation in such cases of the causes of the 
variations in import volumes in the importing Member's market. 
Thus, the factual scenarios of the SPB must  not be mechanistically applied. The 
responding parties do have a responsibility to submit information and evidence in 
their favour, particularly about their pric ing behaviour, import volumes, and dumping 
margins. But the investigating authorit y has a duty to seek out information on 
relevant factors and evaluate their proba tive value in order to ensure that its 
determination is based not on presumptions, but on a sufficient factual basis.
77 
77. The USDOC Section 129 Determination states:  "Declining import volumes after, and 
apparently  resulting from, imposition of an anti-dumping duty order indicate that exporters would 
                                                      
74 Appellate Body Report, US - Corrosion-Resistant Steel Sunset Review , para. 177. 
75 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 "). 
76 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 177. 
77 Appellate Body Report, US – OCTG from  Mexico , paras. 200-201. WT/DS268/RW 
Page C-22  
 
  need to dump  to sell at pre-order levels."
78  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. 
 78. Compounding this failure, during the S ection 129 proceeding the dominant Argentine 
producer had offered explanations and evidence that  explained the reasons for the volume decline.  
This information demonstrated that the decline 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 review,  established that Acindar was only a 
minor producer, and demonstrated that Siderca had diversified its export ma rkets after the imposition 
of the order and that the company performed quite well without exporting to the US market.
79  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. 
 79. The USDOC relied on the decline in import volumes to disregard pos itive evidence and to 
make its affirmative likelihood dete rmination.  USDOC's reliance on the decline in import volume as 
a basis for its 2005 likelihood determination violated  Article 11.3 of the Anti-Dumping Agreement, 
and failed to bring the United States into complia nce with the rulings and recommendations of the 
DSB.  In relying on the post-order volume declin e to the exclusion of  positive evidence, the USDOC 
did not conduct a case-specific analysis of the fa ctors behind the decline, did not properly establish 
the facts relevant to the likelihood determination,  and did not objectively evaluate the matter. 
 80. Finally, the United States is incorrect that  Argentina's position regarding USDOC's inference 
based on the volume decline is inconsistent with  its position regarding USDOC's development of a 
new and different evidentiary basis.
80  Because the USDOC developed some facts related to the 
volume decline in the 2000 review, it was part of  the "review" and "determination" required by 
Article 11.3.  Thus, the USDOC c ould have developed further inform ation regarding the basis for the 
volume decline to clarify or explain the inference that  it drew in 2000.  In fact, it had an obligation to 
do so, as the Appellate Body made clear that a s ubstantive analysis of the reasons for the volume 
decline would be necessary to support an inference that  dumping is likely to continue or recur.  Thus, 
it is clear that the Section 129 Determination is defi cient on this point, and that USDOC's Section 129 
Determination does not comply with Article 11.3.     
2. The USDOC's Section 129 Determinatio n is A "Measure Taken To Comply" and 
USDOC's Findings Regarding Volume Are Part of That Determination 
 
81. The US First Submission offers the puzz ling suggestion that "Argentina has offered no 
argument as to why the finding regarding import volumes,  which is an incorporation of an element of 
the original determination, is a measure taken to comply."
81 
 
82. This argument can be dismissed by the Pa nel.  First, the Section 129 Determination is 
unquestionably a "measure taken to comply" for the purposes of DSU Article 21.5.  Second, the Section 129 Determination specifically relied on the USDOC findings on import volumes from the 
original sunset review.  Therefore, the findings on volume are an integral part of the "measures taken 
to comply" for the purposes of Article 21.5.  Third,  WTO jurisprudence on the scope of Article 21.5 
                                                     
 
78 USDOC Section 129 Determination at 11 (ARG-16) (emphasis added). 
79 See Siderca's Response to Questionnaire (30 Nov. 2005) at 7-10 (ARG-15).  
80 US First Submission, para. 33. 
81 US First Submission, para. 34.  WT/DS268/RW 
 Page C-23 
 
 
  supports the proposition that the findings on volum e are part of the US implementing measure.  
Argentina's position is set forth below.  83. It is not disputed by the United States that the Section 129 Determinati on is a "measure taken 
to comply."  Indeed, the express purpose of Secti on 129 of the Uruguay Round Agreements Act is to 
enable the United States to bring itself into  conformity with its obligations under, inter alia , the Anti-
Dumping Agreement.  In the compliance proceeding in US – Lumber ITC Investigation (Article 21.5 – 
Canada), the Appellate Body confirmed that a US Section 129 Determination constitutes a "measure 
taken to comply."  The Appellate Body stated:  "We must review the Panel's assessment of the 
Section 129 Determination because that is the 'meas ure taken to comply' with the recommendations 
and rulings of the DSB."
82  As the Panel noted in US – Countervailing Measures on Certain EC 
Products (Article 21.5 – EC) , "Section 129 is the US procedure aimed at rendering an administering 
authority's action, which was previously found WTO-inconsistent by the DSB, " not inconsistent  with 
the findings  of the panel or the Appellate Body."83 
 
84. As noted above, in making its Section 129 De termination, the USDOC relied on its findings 
on volume from the original sunset review.  Ind eed, the very first paragraph of the Section 129 
Determination states in part that:  
[W]e solicited and considered inform ation 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.
84 
85. Thus, the USDOC states clearly that its "mea sure taken to comply" is based on information 
and argument from domestic and respondent parties and the USDOC findings on import volumes 
during 1995-2000 from the original sunset review.  Also, as noted above, any possible doubt on this issue is removed by the USDOC's own declarations in the Section 129 Determin ation that it "relied on 
our previous finding regarding the volume of imports."
85  The USDOC stated unequivocally, the 
findings on volume from the original sunset review were specifically "relied upon" by the Department.  The USDOC findings on import volumes from the original review are thus a 
fundamental part of the US "measures taken to comply." 
 86. In addition, the record established that Side rca is the major Argentine producer of OCTG, 
and, as the United States repeats often, USDOC ma de a "country-wide" determination.  Thus, any 
finding with respect to the Argentine OCTG industry necessarily is a finding with respect to Siderca.  
More specifically, the finding that  volume decreased after impositi on of the measure can only be a 
finding "with respect to Siderca," as the record shows that Siderca was the only exporter prior to the 
imposition of the measure, and that the marginal  OCTG producer, Acindar, did not even produce 
OCTG until 1998 – i.e., three years after imposition of  the measure.  The fact is that the USDOC 
                                                     
 
82 See Appellate Body Report, US – Lumber ITC Investigation (Article 21.5 – Canada), para. 90. 
83 Panel Report, US – Countervailing Measures on Cert ain EC Products (Article 21.5 – EC) , para. 7.12 
(original emphasis). 
84 USDOC Section 129 Determination at 1 (emphasis added) (ARG-16). 
85 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 anti-dumping 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). WT/DS268/RW 
Page C-24  
 
  purports to make a count ry-wide determination despite  the information provided by Siderca, and then 
disregards Siderca's explanations of the volume declin e.  Thus, it is simply incorrect, with respect to 
the volume decline, for the United States to assert that USDOC made no findings with respect to 
Siderca
.86  
 3. Prior WTO Jurisprudence Confirms that USDOC's Findings on Volume Are Part of 
The Measures Taken to Comply 
 
87. Accepting the US argument – that the findings on  volume are not part of the "measures taken 
to comply" – would breach two important principles est ablished by the jurisprudence. First, it is not 
up to the implementing party to decide the scope of  jurisdiction of an Article 21.5 panel.  As the 
Appellate Body stressed in US – Softwood Lumber IV (Article 21.5 – Canada) : 
 
A number of previous proceedings have raised the issue of what measures fall within the scope of jurisdiction of a panel acting pursuant to Article 21.5. Panels and the 
Appellate Body alike have found that what is a "measure taken to comply" in a given 
case is not determined exclusively by the implementing Member. A Member's designation of a measure as one taken "to comply ", or not, is relevant to this inquiry, 
but it cannot be conclusive. C onversely, nor is it up to the complaining Member alone 
to determine what constitutes the measure take n to comply. It is rather for the Panel 
itself to determine the ambit of its jurisdiction.
87 
88. After having stated expressly in its implem enting 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."  Otherwise, the United States 
would be determining unilaterally which parts of its measures can be examined by an Article 21.5 
panel. 
 
89. Second, if the US position were to prevail, the Panel would be impaired in its ability to 
determine the WTO-consistency of the US impl ementing measures, base d on Argentina's panel 
request.  The Panel in Australia – Automotive Leather II (Article 21.5 – US) rejected a similar attempt 
by Australia to exclude a certain measure from its terms of reference:  
In our view, the 1999 loan cannot be ex cluded from our consideration without 
severely limiting our ability to judge, on the basis of the Unit ed States' request, 
whether Australia has taken measures to comply with the DSB's ruling. In the 
absence of any compelling reason to do so, we decline to conclude that a measure 
specifically identified in the request for establishment is not within our terms of 
reference.
88  
90. The principles enunciated by the Panel in Australia – Automotive Leather II apply readily in 
the present case.  First, the present Panel would be severely limited in its ability to judge the WTO-consistency of the US implementing measure if it were artificially to exclude from its terms of 
reference one of the two grounds on which the United States contends serves as the basis for the 
USDOC Section 129 Determination.  Second, Ar gentina's panel request in the present case 
                                                     
 
86 US First Submission, para. 14 (emphasis in original). 
87 Appellate Body Report, United States – Final Countervailing Duty Determination with Respect to 
Certain Softwood Lumber from Canada – Recourse by Canada to Article 21.5 of the DSU , WT/DS257/AB/RW, 
adopted 20 December 2005, para. 73 (" US – Softwood Lumber IV (Article 21.5 – Canada)" ). 
88 Panel Report, Australia – Subsidies Provided to Produce rs and Exporters of Automotive Leather – 
Recourse to Article 21.5 of the DSU by the United States , WT/DS126/RW and Corr.1, adopted 11 February 2000, 
DSR 2000:III, 1189, para. 6.5 (" Australia – Automotive Leather II (Article 21.5 – US) ").  WT/DS268/RW 
 Page C-25 
 
 
  "specifically identified" both the Section 129 Dete rmination and the finding on volume relied upon by 
the USDOC.89  There is no reason, let alone a "compelling reason" to exclude this reliance from the 
Panel's terms of reference, as estab lished by Argentina's panel request. 
 91. The Panel in Australia – Automotive Leather II (Article 21.5 – US)  also  referred to a measure 
that was "inextricably linked" to the steps taken by the implementing party in response to the DSB 
rulings in that dispute.
90  The Panel in Australia – Salmon (Article 21.5 – Canada)  used a very similar 
test:  
[W]e note that an Article 21.5 panel cannot leave it to the full discretion of the 
implementing Member to decide whether a measure is one "taken to comply". If one 
were to allow that, an implementing Member could simply avoid any scrutiny of certain measures by a compliance panel, even where such measures would be so clearly connected to the panel and Appella te Body reports concerned, both in time 
and in respect of the subject-matter, that any impartial observer would consider them 
to be measures "taken to comply".
91 
92. These tests were endorsed by the Appellate Body in US – Softwood Lumber IV (Article 21.5 – 
Canada) : 
 
Turning to examine the legal standard articulated by the Article 21.5 Panel in this case, we note that the Panel stated, first, that it would be "guided by dispute 
settlement decisions regarding the scope of DSU Article 21.5". The Panel observed 
that "Article 21.5 proceedings are not rest ricted to measures formally, or explicitly, 
taken by Members to implement DSB rulings and recommendations." The Panel then went on to examine the panel reports in Australia – Salmon (Article 21.5 – Canada) 
and Australia – Automotive Leather II (Article 21.5 – US) . The Panel observed that, 
in this case, there was no dispute that th e Section 129 Determination fell within the 
scope of the Article 21.5 proceedings.  
… 
 
[I]t is clear from the previous panel report s the Panel cited, and from the language it 
used ("clearly connected" and "inextricably  linked"), that the Panel employed a 
nexus-based test similar to the ones articulated in Australia – Automotive Leather II 
(Article 21.5 – US) and Australia – Salmon (Article 21.5 – Canada) to determine 
whether the First Assessment Review fell with in the scope of its jurisdiction. We see 
no error in the Panel's adoption of such  a standard, which accords with our own 
interpretation of Article 21.5.
92  
93. This "nexus-based" test applies equally to  the present dispute.  The USDOC findings on 
volume are "clearly connected" and "inextricably lin ked" to the DSB rulings in the present case, in 
that (1) the Section 129 Determination was adopt ed to implement the DSB rulings; and (2) the 
USDOC findings on volume are an integral part of the Section 129 Determination.  As noted above, 
the Panel cannot sever from its jurisdiction one of  the factors expressly relied upon by the USDOC 
when it adopted its "measure taken to comply." 
                                                      
89 See Argentina's Panel Request at pages 3-4. 
90 Panel Report, Australia – Automotive Leather II (Article 21.5 – US) , para. 6.5. 
91 Panel Report, Australia – Measures Affecting Importation of Salmon – Recourse to Article 21.5 of 
the DSU by Canada , WT/DS18/RW, adopted 20 March 2000, DSR 2000:IV, 2031, para. 7.10, subparagraph 22 
("Australia –Salmon (Article 21.5 – Canada )). 
92 Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , paras 78-79. WT/DS268/RW 
Page C-26  
 
   
94. Finally, the US reliance on EC – Bed Linen (Article 21.5 – India)  is inapposite.  In that case, 
India made a particular claim (that the EC viol ated Article 3.5 of the Anti-Dumping Agreement by 
failing to ensure that injuries caused by "other fact ors" was not attributed to the dumped imports) that 
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.
93  As noted by the Panel, "[t]he EC  did not … undertake a reconsideration 
of the "other factors' identified by Indi a. Rather, it referred to and confirmed its original consideration  
of these factors."94 
 
95. An examination of the 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."
95 
 
96. Similarly, the section on "Competition fro m non-compliant producers in the Community" 
states only that: "[t]he findings in recitals 107 and 108 of the provisional Regulation remain 
unaffected."96 And once again, the section on "Increase in  raw cotton prices" repeated the same 
statement that: "[t]he findings set out in recitals  102 and 103 of the provisional Regulation remain 
unaffected."97 
 
97. Thus, as these sections demonstrate, the portion of the EC Regulation dealing with "Effects of 
other factors" consisted of nothing more than a pro forma  affirmation that its original consideration 
was "confirmed" or remained "unaffected."98 
 
98. By contrast, in the present dispute, the USDOC did not simply confirm its "original 
consideration" of the finding on volume.  Rather, it relied on this finding for the separate and 
independent purpose of its implementing measure , i.e., the Section 129 Determination.  Instead of 
indicating that a finding in the past "remained una ffected", the USDOC relied on this finding as one 
of the two bases for its implementing measure.  For this reason, the USDOC finding on volume is demonstrably part of the "measures taken to comply."  Thus, EC – Bed Linen (Article 21.5 – India)  is 
simply irrelevant in the present context.   
 
                                                     
 
93 Appellate Body Report, European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed 
Linen from India – Recourse to Article 21.5 of the DSU  by India , WT/DS141/AB/RW, adopted 24 April 2003, 
DSR 2003:III, 965, para. 72 (" EC – Bed Linen (Article 21.5 – India )"). 
94 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, adopted 24 April 2003, as modified by 
Appellate Body Report, WT/DS141/AB/RW, DSR 2003:IV, 1269, para. 6.42 (original emphasis) (" EC – Bed 
Linen (Article 21.5 – India )"). 
95 Council Regulation (EC) No 1644/2001, 7 August 2001, amending Council Regulation (EC) 
No 2398/97, imposing a definitive anti-dumping duty on imports of cotton-type bed linen originating in Egypt, 
India, and Pakistan and suspending its application with regard to imports originating in India, published in the 
Official Journal of the European Communities, 14 August 2001, L-series, No. 219, para. 63. 
96 Official Journal of the European Communities, 14 August 2001, L-series, No. 219, para. 64. 
97 Official Journal of the European Communities, 14 August 2001, L-series, No. 219, para. 60. 
98 For the sake of completeness, Argentina notes that there is a slightly expanded discussion on 
"Development of Community Consumption" in the EC Regulation.  However, as the Article 21.5 Panel noted:  
"The EC confirmed the findings set out in the original determination, and expanded on them in respect of one 
element, the development of consumption of bed linen in th e EC, in order to take into account slightly different 
figures on domestic industry sales. Regulation 1644/2001, at paras. 59 – 64.  India's claim in this proceeding 
does not rely on this minor change."  Panel Report, EC – Bed Linen (Article 21.5 – India ) n. 75.  WT/DS268/RW 
 Page C-27 
 
 
  IV. THE UNITED STATES VIOLATED THE SPECIFIED OBLIGATIONS OF 
ARTICLE 6 OF THE ANTI-DUMPING AGREEMENT 
 
A. ARTICLE 6 OF THE ANTI-DUMPING AGREEMENT APPLIED TO THE USDOC SECTION 129 
DETERMINATION 
 
99. The Panel can quickly dispose of a threshold ma tter that is not in dispute:  Article 6 of the 
Anti-Dumping Agreement applied to the USDOC Sec tion 129 Determination in the present case.  The 
United States has not asserted otherwise. 
 100. As noted in Argentina's First Submission, Ar ticle 11.4 of the Agreement provides that "[t]he 
provisions of Article 6 regarding evidence and pro cedure shall apply to any review carried out under 
this Article."
99  The Section 129 Determination is a re view carried out under Article 11, as it 
purported to supplant or modify the USDOC 2000 like lihood of dumping determin ation in the sunset 
review for OCTG from Argentina.   
 101. The US First Submission acknowledges the applicability of Article 6, stating that "Article 11.4 of the AD Agreement establishes that fo r sunset reviews, the 'provisions of Article 6 
regarding evidence and procedure shall apply…."
100  The United States then asserts that "[e]ven with 
the short period of time that Commerce was given, it satisfied all of the procedural obligations of 
Article 6."101  For the reasons discussed be low, this assertion of US compliance with the requirements 
of Article is untenable.    
B. THE USDOC FAILED TO PROVIDE TO IN TERESTED PARTIES AMPLE OPPORTUNITY TO 
PRESENT IN WRITING ALL EVIDENCE WH ICH THEY CONSIDERED RELEVANT, IN 
VIOLATION OF ARTICLE 6.1, AND FAILED TO PROVIDE INTERESTED PARTIES A FULL OPPORTUNITY FOR THE DEFENCE OF THEIR INTERESTS, IN VIOLATION OF ARTICLE 6.2 
 
102. In its First Submission, Argentina summa rized the relevant WTO jurisprudence on 
Articles 6.1 and 6.2 of the Anti-Dumping Agreement.  It will not repeat that discussion here, other than to note that both WTO Panels and the Appellate Body have consistently rejected efforts to read 
these provisions in a narrow, pro forma  manner.  Instead, the cases have made clear that these 
provisions set out "fundamental due process rights" to which interested parties are entitled during 
reviews.
102  There must be "liberal opportunities" for respondents to defend their interests.103   
Moreover, as the Appellate Body has stressed, "[t]hi s due process obligation—that an interested party 
be permitted to present all the evidence it c onsiders relevant—concomitantly requires the 
investigating authority, where appropriate, to ta ke into account the information submitted by an 
interested party."104   
 103. The United States claims to have complied with Article 6.1 in part because the responding 
parties "timely filed substantive responses to Co mmerce's requests for information", and provided 
rebuttal comments to submissions made by other interested parties.
105  Therefore, according to the 
                                                      
99 Argentina's First Submission, para. 134. 
100 US First Submission, para. 51. 
101 US First Submission, para. 53. 
102 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 241. 
103 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 241. 
104 Appellate Body Report, Mexico - Definitive An ti-Dumping Measures on Beef and Rice , 
WT/DS295/AB/R, adopted on 20  December 2005, para. 292 (" Mexico – Anti-Dumping Measures on Beef and 
Rice"). 
105 US First Submission, para. 56. WT/DS268/RW 
Page C-28  
 
  United States, the respondents had "not one but tw o opportunities to present in writing the evidence 
they considered relevant."
106  
 104. Yet a review of the responses filed by the r esponding parties in the Section 129 Determination 
confirms that they were denied the ample opport unity to which they were entitled to present the 
evidence that they considered relevant.  Th e 7 December 2005 letter from Siderca to the USDOC 
made clear that the allegations by the Petitione rs regarding Siderca's cost data were wrong.
107  The 
letter provided a detailed review of the problems with the Petitioners' appr oach, its use of facts, and its 
conclusions.  The letter also pointed out that th ere had been no communication from the USDOC as to 
how it would use the information solicited, what  procedures would be used to analyze the 
information, the timing of any hearing, or how th e parties would be permitted to have access to and 
comment on the essential facts being used by  the USDOC to make its determination.108  It also 
pointed out that the allegations by the Petitioners re garding Acindar were wrong, and did not form an 
adequate basis for a country-wide determination.109  
 
105. The USDOC did not respond to Siderca's 7 December letter.  The parties only found out on 
16 December that there would be no additional procedur es, and that the final results had been issued.  
This falls far short of the US obligation to provide  "liberal opportunities" to the responding parties to 
defend their interests.   Similarly, by simply ignoring Si derca's 7 December letter, the USDOC 
breached its obligation to "take into account the information submitted by an interested party."    
106. As noted in Argentina's First Submission,  during the Article 21.3(c) arbitration on the 
reasonable period of time for compliance, the United States set out an extensive list of procedural 
steps that it intended to take during the Section 129 proceeding.  It now claims that such procedural 
safeguards as supplemental questionnaires, a prelimin ary determination, a hearing or a schedule for 
comments are not required by Article 6.1.
110  In Argentina's view, while these steps may not be 
specifically mentioned in Article 6.1, they provide  means through which an investigating authority 
may fulfil its obligations under this key provision.  The US approach –  to deny that any of these steps 
are required under Article 6.1 – essentially strips th is provision of any substantive meaning, and 
would reduce it to a pro forma  requirement.  As noted above, the ju risprudence has rejected such an 
approach.  
107. 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.  For the reasons specified above, it is clear that the United 
States breached its obligations under this provision.  By totally disregarding the legitimate concerns 
raised by Siderca in its 7 December letter, and then simply issuing the final determination, the 
USDOC hardly provided this respondent with " liberal opportunities" to defend its interests.
111   
                                                      
106 US First Submission, para. 56. 
107 Letter from Siderca to USDOC, 7 December 2005 at 4-8 (public version) (ARG-19). 
108 Letter from Siderca to USDOC, 7 Decembe r 2005 at 3 (public version) (ARG-19). 
109 Letter from Siderca to USDOC, 7 Decembe r 2005 at 8 (public version) (ARG-19). 
110 US First Submission, paras. 57-59. 
111 As Argentina noted in its First Submission, the Panel in Guatemala – Cement II  stressed that 
"Article 6.1…requires that interested  parties shall have 'ample' opportun ity to present evidence and 'full' 
opportunity to defend their interests."  Panel Report, Guatemala – Definitive Anti-Dumping Measures on Grey 
Portland Cement from Mexico , WT/DS156/R, adopted 17 November 2000, para. 8.119 (" Guatemala – 
Cement II "); Argentina's First Submission, para. 141.  The United States considers it "curious" that Argentina 
has cited this precedent, because that Pa nel stated that Article 6.1 does not re quire investigating authorities to set 
time-limits for the presentation of arguments and evidence during the final stage of the investigation.  US First 
Submission, para. 60.  The United States omits the key part of the Panel's reasoning on this issue, found in the paragraph subsequent to the one cited by the United States:  " What counts is whether, in practice, sufficient 
opportunity was provided , not whether time limits for the submission of evidence were set [emphasis added]."   WT/DS268/RW 
 Page C-29 
 
 
   
108. Turning to Article 6.2, Argentina notes that the United States has not challenged the 
proposition that the lack of a hearing will violate the specific obligation to allow interested parties to 
"meet" parties with adverse interests and to "present…information orally."112  Instead, the United 
States has confined its defence to a single argumen t, that no interested party requested a hearing.113   
 
109. Yet, as noted above, the United States had alr eady told Argentina and the Arbitrator that it 
intended to follow specific procedures, which included a hearing.  Also, one of the interested parties, 
Siderca, specifically asked the USDOC to provid e more information regarding the timing of the 
hearing, and the USDOC offered no response.  All of this occurred within the context of this specific 
case, in which one of the specific violations th e Panel found with the USDOC's 2000 review was a 
violation of Article 6.2 and the lack of a hearing.114  If the USDOC had changed its mind about 
providing a hearing, it should have advised the par ties, especially in light of Siderca's expressed 
concern with the lack of information regarding th e procedures generally, and the hearing specifically. 
 
110. While the lack of a hearing will breach Article  6.2 in circumstances such as in this case, that 
is not exhaustive of the actions that may be incons istent with Article 6.2.  The opening sentence of 
Article 6.2 establishes a general obligation:  "Thr oughout the anti-dumping investigation all interested 
parties shall have a full opportunity for the defence of their interests."  In EC – Tube or Pipe Fittings , 
the Appellate Body found that the EC breached its obligations under Article 6.2 for failing to disclose 
to the interested parties during an anti-dumping i nvestigation certain information on injury factors.115 
 
111. In the present case, by remaining silent afte r Siderca asked for essential clarification with 
respect to the erroneous allegations of the Petitio ners and with respect to the procedures, the 
United States deprived the respondents the "full oppor tunity for the defence of their interests", in 
breach of Article 6.2. 
 
C. THE USDOC FAILED TO PROVIDE TIMELY  OPPORTUNITIES FOR INTERESTED PARTIES 
TO SEE ALL OF THE INFORMATION THAT IS RELEVANT TO THE PRESENTATION OF 
THEIR CASES, IN VIOLATION OF ARTICLE 6.4 
 
112. As the Appellate Body made clear in EC – Tube or Pipe Fittings , 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-dumping investigation.116 
 113. As a threshold matter, the Panel can readily dismiss the half-hearted US claim that Argentina 
has "not met the burden of making a prima facie  case with respect to this claim" ostensibly because 
"Argentina's discussion of the info rmation that was purportedly not put on the record is murky."
117  
Argentina clearly identified in its First Submission – and attached as exhibits – all of the relevant 
USDOC memoranda to file.  To reiterate, the Sec tion 129 Determination included six memoranda to 
                                                                                                                                                                     
Panel Report, Guatemala – Cement II , para. 8.119.  As noted above, in the Section 129 Determination, an 
"ample" opportunity to present evidence and a "full" opportunity to defend their interests was not  provided to 
the respondents.  To apply the test set out by the Panel in Guatemala – Cement II , this is what "counts." 
112 Argentina's First Submission, para. 148. 
113 US First Submission, para. 63. 
114 Panel Report, US – Oil Country Tubular Goods Sunset Reviews , paras. 7.235, 8.1(d)(i). 
115 Appellate Body Report, European Communities – Anti-Dumping Duties on Malleable Cast Iron Tube 
or Pipe Fittings from Brazil , WT/DS219/AB/R, adopted 18 August 2003, (" EC – Tube or Pipe Fittings  "). 
116 Appellate Body Report, EC – Tube or Pipe Fittings , para. 142; Argentina's First Submission, 
para. 154. 
117 US First Submission, para. 66. WT/DS268/RW 
Page C-30  
 
  file, five of which are dated 16 December 2005, the day of the release of the Section 129 
Determination.  The six memoranda were discu ssed in Section IV.D.3 of Argentina's First 
Submission, and were attached as:  
• Exhibit ARG-18 (22 November 2005 USDOC Memorandum to file from Fred Baker 
(public version)); 
• Exhibit ARG-21 (16 December 2005 USDOC Memorandum to file from Mark 
Flessner regarding "Inconsistencies in data  reported by Siderca" (public version)); 
• Exhibit ARG-22 (16 December 2005 USDOC Memorandum to file from Mark 
Flessner regarding "Information from Preston Publishing Company"); 
• Exhibit ARG-23 (16 December 2005 USDOC Memorandum to file from Mark 
Flessner regarding "Inconsistencies in data  reported by Acindar" (public version)); 
• Exhibit ARG-24 (16 December 2005 USDOC Memorandum to file from Mark 
Flessner regarding "Securities and Exchange  Commission Filings of Domestic OCTG 
Producers"); and 
• Exhibit ARG-25 (16 December 2005 USDOC Memorandum to file from Fred Baker 
regarding "Information for the Record"). 
114. Argentina's First Submission also indicated that three of these six memoranda were public 
documents, and therefore met all of the criteria established in EC – Tube or Pipe Fittings .
118  I n  
addition, as stated in Argentina's First Submission119, although three of the memoranda were 
confidential documents, the USDOC had created pub lic versions ("not confidential as defined in 
Article 6.5"), such that the "public versions" of these documents would also be subject to the 
disciplines of Article 6.4:  
• Exhibit ARG-18 (22 November 2005 USDOC Memorandum to file from Fred Baker 
(public version)); 
• Exhibit ARG-21 (16 December 2005 USDOC Memorandum to file from Mark 
Flessner regarding "Inconsistencies in data  reported by Siderca" (public version)); 
and 
• Exhibit ARG-23 (16 December 2005 USDOC Memorandum to file from Mark 
Flessner regarding "Inconsistencies in data  reported by Acindar" (public version)); 
 
115. In US – Gambling , the Appellate Body stated that "[ t]he evidence and arguments underlying a 
prima facie case…must be sufficient to identify the cha llenged measure and its basic import, identify 
the relevant WTO provision and obligation contained therein, and explain the basis for the claimed 
inconsistency of the measure with that provision."
120  Argentina has amply met this burden.  It 
identified and attached as exhibits the six USDOC memoranda to file, and their "basic import", i.e., 
their role in denying the rights of the respondent companies.  Argentina's First Submission clearly 
identified Article 6.4 of the Anti-Dumping Agreem ent and the obligation imposed on investigating 
authorities to provide timely opport unities for all interested parties to see all information that is 
relevant to the presentation of their cases.  Arge ntina also explained the basis for the claimed 
inconsistency with Article 6.4, including the fact th at this information was u sed by the USDOC in the 
                                                      
118 Argentina's First Submission, para. 160. 
119 Argentina's First Submission, paras. 157 and 160. 
120 Appellate Body Report, United States – Measures Affecting the Cross-Border Supply of  Gambling 
and Betting Services , WT/DS285/AB/R, adopted 20 April 2005, para. 141 (" US – Gambling ").  WT/DS268/RW 
 Page C-31 
 
 
  Section 129 proceeding, and yet the Argentine e xporters were never provided with a sufficient 
opportunity to "prepare presentations on the basis of this information."121 
 
116. Before leaving this threshold issue, Argentin a notes that within days of the release of the 
Section 129 Determination, Siderca wrote directly  to the USDOC to express its dismay that the 
USDOC relied on this information without disclosing it to the parties.  Siderca's letter – attached as 
Exhibit ARG-26 – is as clear and unambiguous as Argentina's First Submission.  Therefore, for the 
United States to assert that Argentina's claim is in any way "murky" is simply not believable.  
Argentina recalls the admonition of the Appellate Bo dy that "[t]he procedural rules of WTO dispute 
settlement are designed to promote, not the developm ent of litigation techniques, but simply the fair, 
prompt and effective resolution of trade disputes."122 
 
117. Turning to the substance of Argentina's clai m, Argentina notes that the US First Submission 
lacks 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.  The Panel can reasonably assume that they had been drafted, reviewed and 
modified concurrently with the preparation of the Section 129 Determination.  Indeed, this is clear 
from the references in the memoranda to matters su ch as "inconsistencies in data."  Yet while the 
USDOC conducted this analysis, and dr afted its Determination, the inte rested parties were unaware of 
the analysis that was being performed, and were not provided with any opportunity to comment.  
There was never any attempt by the Department to r econcile such alleged "inc onsistencies in data."  
The respondents were not provided with any op portunities – let alone timely ones – to see such 
information which was clearly being used  by the USDOC in its Determination. 
 
118. In response to Argentina's claims, the United States has offered only one argument.  The US 
First Submission claims that because the Article 21.3(c) Arbitrator granted the United States twelve rather than fifteen months as the reasonable pe riod of time for compliance, it was therefore not 
"practicable" for the United States to comply with its binding obligations under Article 6.4.  The 
Panel should be greatly concerned by this line of reasoning.  
119. As the United States is well aware, all WTO obligations apply on a concurrent and 
overlapping basis.  Members are required to comply  with all of their WTO obligations at the same 
time.  Under Article 21.3(c), the United States was requi red to bring its measures  into conformity with 
its WTO obligations in the shortest period of time possible, which the Arbitrator determined to be 
twelve months.  At the same time, the United St ates was required to comply with its due process 
obligations under Article 6.4 of the Anti-Dump ing Agreement.  US compliance with the DSU 
Article 21.3(c) in no way excused the United States from compliance with any of its other WTO 
obligations.  The Panel in EC – Trademarks and Geographical Indications (US) made clear that all 
WTO obligations apply concurrently: 
 
The Panel notes that there is no hierarchy between the TRIPS Agreement and GATT 1994, which appear in separate annexes to the WTO Agreement. The ordinary 
meaning of the texts of the TRIPS Agreement and GATT 1994, as well as Article II:2 
of the WTO Agreement, taken together, indicates that obligations under the TRIPS 
Agreement and GATT 1994 can co-exist and that one does not override the other. 
This is analogous to the finding of the Panel in Canada – Periodicals , with which the 
Appellate Body agreed, concerning the respective scopes of GATS and GATT 1994.  Further, a "harmonious interpretation" does not require an interpretation of one that 
                                                     
 
121 Argentina's First Submission, para. 156. 
122 Appellate Body Report, United States – Tax Treatment for "Foreign Sales Corporations" , 
WT/DS108/AB/R, adopted 20 March 2000, para. 166. WT/DS268/RW 
Page C-32  
 
  shadows the contours of the other. It is we ll established that the covered agreements 
apply cumulatively and that consistenc y with one does not necessarily imply 
consistency with them all.
123 
120. Similarly, there is no "hierarchy" between DS U Article 21.3(c) and Article 6.4 of the Anti-
Dumping Agreement.  The obligations under DSU Article 21.3(c) and Article 6.4 of the Anti-
Dumping Agreement "co-exist and…one does not ove rride the other."  Moreover, a "harmonious 
interpretation" does not require that DSU Article 21. 3(c) "shadows the contours" of the obligations of 
Article 6.4 of the Anti-Dumping Agreement.  Th e obligations of the United States under these two 
provisions apply cumulatively, and the Panel should dismiss the US line of argument. 
 121. Also, to assert that the length of the implem entation period excuses the United States from the 
obligation to comply with Article 6.4 is to say th at the Arbitrator's decision is incorrect.  The 
Arbitrator's finding was based on the notion that 12 months was the shortest possible time under the 
US system in which the United States could bring itsel f into conformity with all of its obligations, not 
just some of the obligations.  And, the Arbitrator  knew precisely what the United States intended to do 
to comply with its Article 6 obligations, because the United States explained the procedures in detail.   
 122. In fact, the United States had ample time to pr ovide the interested parties with the information 
that was going to be used by the USDOC in its de termination.  The United States had a full year to 
comply, which was close to the fifteen month peri od requested by the United States.  The United 
States was also under the obligation to  advance in parallel its efforts to remedy the "as such" and "as 
applied" violations, and it in fact began the procedures relating to the "as applied" violation before it 
finished its procedures relating to the "as such" violations.
124  As Argentina demonstrated to the 
Arbitrator in the Article 21.3 proceedings, the USDOC routinely responds to decisions by other 
bodies (US courts and NAFTA Pane ls) within 30 or 60 days, and USDOC typically issues a draft 
determination in order to allow the pa rties to comment on the new analysis.125 
 
D. THE USDOC FAILED TO REQUIRE CERTAIN INTERESTED PARTIES TO SUBMIT NON-
CONFIDENTIAL SUMMARIES OF THEIR WRI TTEN SUBMISSIONS IN THE SECTION 129 
PROCEEDING IN A MANNER SO AS TO PERMIT THE ARGENTINE EXPORTERS TO HAVE A 
REASONABLE UNDERSTANDING OF THE SUBSTANCE OF THE CONFIDENTIAL 
INFORMATION SUBMITTED, IN VIOLATION OF ARTICLE 6.5 AND 6.5.1 
 
123. Under Article 6.5.1, the USDOC was under an  obligation to require interested parties 
providing confidential information to furnish non-c onfidential summaries.  The US First Submission 
argues that the United States complied with this  obligation because "Commerce…has established a 
system whereby counsel  for interested parties can have direct access to confidential information and 
therefore may directly address the evidence provided."126 
 
                                                      
123 Panel Report, European Communities – Protection of Trademarks and Geographical Indications for 
Agricultural Products and Foodstuffs, Complaint by the United States , WT/DS174/R, adopted 20 April 2005, 
para. 7.208.  
124 See Award of the Arbitrator, US – Oil Country Tubula r Goods Sunset Reviews , paras. 38-39.  The 
United States asserted that "The 129 proceeding could not commence until the regulation was amended."  US First Submission, para. 53.  Yet, the United States in fact began the Section 129 proceeding on 14 October, with 
the issuance of the letter to the Argentine Embassy in the United States.  See Letter from USDOC to Embassy of 
Argentina, Washington, D.C., 14 October 2005 (ARG-1 7).   This was two weeks before the publication of 
USDOC's amended waiver regulation on 28 October 2005.  Accordingly, there was no reason why USDOC 
could not have issued the questionnaires even earlier, thus starting the process sooner and giving the 
United States the additional time it claims to have needed  to comply with its Article 6 due process obligations. 
125 See Award of the Arbitrator, US – Oil Country Tubular Goods Sunset Reviews , para. 45 . 
126 US First Submission, para. 70 (original emphasis).  WT/DS268/RW 
 Page C-33 
 
 
  124. However, a number of key doc uments used by the USDOC, particularly the memoranda to 
file discussed above, were released concurrently with the USDOC Section 129 Determination.  As 
noted in Argentina's First Submission, although Si derca's legal counsel di d obtain copies of the 
proprietary documents identified in the Sec tion 129 Determination, this only occurred 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.  As Article 6.5.1 makes clear, the pur pose of this provision is to enable the parties to 
have a "reasonable understanding of the substance of the information submitted in confidence", and 
thereby to defend their interests.  Once the Determ ination has been made, the documents used by the 
USDOC have little more than historical interest, a nd access by counsel at that point in no way fulfils 
the due process requirements of Article 6.5.1.  Fu rther, it is unclear whether Acindar even was 
represented by its own counsel.  The fact that Aci ndar may not have engaged counsel for purposes of 
this proceeding would not be surprising, given that  the company explained that, at the time of the 
Section 129 proceeding, it had been out of the OCTG  business for four years.  In any event, it is 
unreasonable, unfair, and a violation of Article 6.5 for the USDOC to ignore a specific request by an 
interested party to be advised of the allegations be ing made against it.  In its 6 December 2005 letter, 
Acindar did exactly that, and also questioned whet her the US industry's letters had properly claimed 
confidential treatment for the undisclosed information.127   USDOC did not respond to the company's 
request.   
125. The evidence placed before this Panel by Argen tina confirms this denial of due process rights.  
The 21 December 2005 letter from Counsel for Sider ca – sent five days after the Section 129 
Determination had been released – indicated th at even the lawyers with access to the APO 
information had not seen the propriety versions of  the documents used by the USDOC, and that the 
public versions conveyed very little substance.
128   
 
126. There were several unsuccessf ul attempts by the responding parties to convince the USDOC 
to issue more meaningful summaries of the docum ents issued by the Petitioners, as well as the 
documents issued by the Department.  As noted in Argentina's First Submission, the 
6 December 2005 letter from Acindar to the USDOC stat ed in part that "the Department must require 
US Steel to re-submit its letter in a form that is consistent with the regula tions, and which will allow 
Acindar to at least understand the nature of the al legation being made so that it can defend itself."129  
Similarly, the 14 December 2005 lette r from Siderca to USDOC argued that: 
 
It is unclear why IPSCO is claiming th at the information in the brackets is 
confidential.  Most of the information is  a narrative description that Siderca provided 
as public information.  In addition, the para graph in IPSCO's lett er contains general 
arguments relating to the sufficiency of data.  There does not seem to be any reason to 
claim proprietary treatment fo r this passage.  IPSCO shoul d refile its letter so that 
Siderca officials can review the substa nce and provide additional comments, if 
necessary.130 
127. These requests were ignored, and the USDOC issued its Determination on 16 December.  
Even after the release of the Determination, the respondents continued to seek meaningful non-
confidential summaries.  The 21 December 2005 letter from Counsel for Siderca "respectfully 
request[ed] that the Department revise its  bracketing and reissue the public versions."131  This request 
was also disregarded.  Thus, the USDOC evidently considered its oblig ations under Article 6.5.1 as an 
                                                      
127 See Letter from Acindar to USDOC, 6 Dec. 2005 (ARG-28). 
128 See Letter from Siderca to USDOC, 21 Dec. 2005 (ARG-26). 
129 See Letter from Acindar to USDOC, 6 Dec. 2005 (ARG-28). 
130 See Letter from Siderca to USDOC, 14 Dec. 2005, at n. 7 (ARG-29). 
131 See Letter from Siderca to USDOC, 21 Dec. 2005 (ARG-26). WT/DS268/RW 
Page C-34  
 
  inconvenience to be ignored both during and after  the process of making its Section 129 
Determination.  128. The United States asserts that the Panel in Guatemala – Cement II  "expressly state[d] that it 
was not addressing Article 6.5.1…."
132  Yet the Panel in Guatemala – Cement II  not only addressed 
Article 6.5.1, it made a ruling that Guatemala violated this provision.  The Panel found that 
Guatemala violated this provision because it failed to  require the Petitioners in that case to provide a 
statement of the reasons why summarization of  the relevant information was not possible.133  
Similarly, the USDOC violated Article 6.5.1 because it failed to require the Petitioners in the present 
case to provide non-confidential summaries that "permit[ted] a reasonable understanding of the 
substance of the information", or to provide a st atement as to why, in "exceptional circumstances" 
summarization of the relevant information was not po ssible.  The USDOC is thus in clear breach of 
this provision. 
 
E. THE USDOC FAILED TO SATISFY ITSELF  AS TO THE ACCURA CY OF SIDERCA'S 
SUBMITTED COST INFORMATION FOR THE PURPOSES OF ITS FINDINGS, IN VIOLATION 
OF ARTICLE 6.6 
 
129. The USDOC failed to provide sufficient justif ication for its assertion that it was "unable to 
rely" on Siderca's reported information.    
130. The United States argued in its First Submission that the cost data was not information "upon 
which…findings are based" within the meaning of Article 6.6, because the USDOC did not make findings regarding specific instances of likely dumping by Siderca during the original sunset review 
period.
134  The Panel should reject this attempt by the United States to define the term "upon 
which…findings are based" to cover only info rmation that allegedly supports the USDOC's 
conclusions, but not to information that contradi cts or detracts from its conclusions.  Such an 
interpretation would allow an investigating auth ority to determine for itself which pieces of 
information will, or will not, benefit from the due process protections provided by Article 6.6.  The 
                                                      
132 US First Submission, para. 72. 
133 The Panel stated that: 
Article 6.5.1 generally obliges investigating authorities to require interested parties 
providing confidential information to furn ish non-confidential summaries thereof. 
However, such non-confidential summaries need not be furnished when, "in exceptional 
circumstances", the information "is not susc eptible of summary". In such cases, "a 
statement of the reasons why summarization is not possible must be provided". Although 
Article 6.5.1 does not explicitly provide that "the authorities shall require" interested 
parties to provide a statement of the reasons why summarization is not possible, any 
meaningful interpretation of Article 6.5.1 must impose such an obligation on the 
investigating authorities. It is certainly not possible to conclude that the obligation 
concerning the need to provide a statement of reasons is an obligation imposed exclusively 
on the interested party submitting the information, and not the investigating authority, 
since the AD Agreement is not addressed at interested parties. The AD Agreement imposes 
obligations on WTO Members and their investigating authorities. Accordingly, in our view 
Article 6.5.1 imposes an obligation on inves tigating authorities to require parties that 
indicate that information is not susceptible of summary to provide a statement of the 
reasons why summarization is not possible. Guatemala has failed to adduce any evidence 
that the requisite statement of reasons was provided by Cementos Progreso, or that the 
Ministry even required Ceme ntos Progreso to provide such a statement of reasons. We 
therefore find that the Ministry violated Article 6.5.1 of the AD Agreement by failing to 
require Cementos Progreso to provide a statement of the reasons why summarization of 
the relevant information was not possible.  
 Panel Report, Guatemala – Cement II,  para. 8.213 (emphasis added).  
134 US First Submission, para 74.  WT/DS268/RW 
 Page C-35 
 
 
  US characterization of Siderca's cost information as outside the scope of information "upon 
which…findings are based" is premised on the erroneous assumption that this data was flawed.  
131. The United States has not offered any subs tantive defence to Argentina's claims under 
Article 6.6, other than to argue that "[t]hree pa ragraphs of discussion do not constitute a conclusory 
statement" about Siderca's information.
135   In Argentina's view, thr ee paragraphs in an extended 
Section 129 Determination are, in fact, conclusory.  However, it is not the task of this Panel to count 
the number of paragraphs to determine if the US  conclusions were based on positive evidence.  As 
noted above, the role of the Panel was explained by in the April 2006 decision of the Appellate Body 
in US – Lumber ITC Investigation (Article 21.5 – Canada):  
 
A panel's examination of those conclusions  must be critical and searching, and be 
based on the information contained in the r ecord and the explanations given by the 
authority in its published report. A panel mu st examine whether, in the light of the 
evidence on the record, the conclusions r eached by the investigating authority are 
reasoned and adequate. What is "adequate"  will inevitably depend on the facts and 
circumstances of the case and the particular claims made, but several general lines of 
inquiry are likely to be relevant.  The panel's scrutiny should test whether the 
reasoning of the authority is coherent a nd internally consistent. The panel must 
undertake an in-depth examination of whet her the explanations given disclose how 
the investigating authority treated the fact s and evidence in the record and whether 
there was positive evidence before it to s upport the inferences made and conclusions 
reached by it. The panel must examine whether the explanations provided 
demonstrate that the investigating authority  took proper account of the complexities 
of the data before it, and that it explaine d why it rejected or discounted alternative 
explanations and interpretations of the reco rd evidence. A panel must be open to the 
possibility that the explanations given by th e authority are not reasoned or adequate in 
the light of other plausible alternative expl anations, and must take care not to assume 
itself the role of initial trier of facts, nor to be passive by "simply accept[ing] the 
conclusions of the competent authorities".136 
132. Thus, rather than "simply accepting" the asser tions of the USDOC, this Panel needs to 
conduct a critical and searching examination to de termine if the USDOC's decision to disregard 
Siderca's information was reasoned and adequate.  For the reasons discussed in Argentina's First 
Submission, the USDOC's decision on this issu e was unsupported by any positive evidence, and 
cannot be regarded as either  reasoned or adequate.  
 133. There is nothing on the record in the Sec tion 129 Determination – or in the US First 
Submission – of whether and how the USDOC satisfied  itself as to the accuracy of the information 
provided by Siderca.  If the USDOC considers that it was "unable to rely" on such information, it 
should provide the necessary confidential informa tion to the Panel to demonstrate the "positive 
evidence" upon which this conclusion was based. 
 134. Finally, for the reasons stated above, the US DOC also violated Articles 6.1 and 6.2 of the 
Agreement.  The interested parties had no opportuni ty – let alone "ample" opportunity – to present in 
writing all evidence that they considered to be re levant to challenging USDOC's decision not to use 
Siderca's costs information for purposes of USDOC's Section 129 Determination.  Similarly, for these 
reasons, Siderca did not have a "full opportunity" for the defence of its interests in this regard, in 
violation of Article 6.2.   
 
                                                     
 
135 US First Submission, para 75. 
136 Appellate Body Report, US – Lumber ITC Investigation (Article 21.5 – Canada) , para. 93. WT/DS268/RW 
Page C-36  
 
  F. THE USDOC FAILED TO FOLLOW THE RE QUIREMENTS OF ARTICLE 6.8 AND ANNEX II 
OF THE ANTI-DUMPING AGREEMENT 
 
135. As noted in Argentina's First Submission, the Appellate Body has made clear that recourse to 
"facts available" by an investigating authority is s ubject to the strict discip lines of the Agreement.  
While Argentina will not repeat all of the points set out in section IV.D.6 of its First Submission, it is 
important for the Panel to note the key ruling of the Appellate Body in Mexico – Anti-Dumping 
Measures on Beef and Rice  that "assuming a respondent acted to the best of its ability, an agency must 
generally use, in the first instance, the information the respondent did provide, if any."137 
 
136. As a threshold matter, the Panel should reject  the US attempt to lim it the disciplines imposed 
by Article 6.8 and Annex II when used in a sunset review.138  As noted above, Article 11.4 provides 
plainly that "[t]he provisions of Article 6 regarding evidence and pro cedure shall apply to any review 
carried out under this Article."  Article 6.8 and An nex II (which is incorporated by reference into 
Article 6.8) are "provisions of Article 6 regarding evidence and procedure."  The Section 129 procedure was a "review carried out" under Article 11.  Therefore, the strict disciplines of Article 6.8 
and Annex II, as interpreted by the Appellate B ody, applied to the Section 129 Determination. 
 137. The Panel should also reject the US assertion th at the USDOC did not resort to facts available 
with respect to Siderca because "the result of Commerce's analysis of Siderca's estimated cost 
information was no company-specific finding regarding Siderca."
139  The US assertion is premised on 
the erroneous assumption that these obligations apply only to information that supports the 
conclusions of the investigating authority, an assu mption that has no support in the treaty text.  The 
obligations of Article 6.8 and A nnex II apply to all information, including what the investigating 
authority may consider to be exculpatory information. 
 138. Although the USDOC did not use the term "facts available" in the Section 129 Determination, 
this cannot be conclusive – if it were, investig ating authorities could shield themselves from the 
disciplines of Article 6.8 and Annex II by simply a voiding that term.  This would elevate form over 
substance and would permit investigating authorities,  not WTO Panels, to determine when Article 6.8 
and Annex II applied, and when it had been breach ed.  In the present case, the USDOC asked both 
Acindar and Siderca for information that they did not have.
140  Siderca explained that the company 
was unable to provide the information requested by USDOC because it did not retain product-specific 
costs from the period requested.141  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 su ch information under Argentine law.142  When the companies indicated 
that they did not have it, the USDOC resorted to other information, without complying with Article 6.8 and Annex II.  This is recourse to "fact s available", whether the USDOC used that term or 
not. 
 139. The specific allegations raised by Argentina in  its First Submission have not been answered 
by the United States.  As Argentina emphasized, Arti cle 6.8 does not apply at all unless an interested 
party "refuses access to, or otherwise does not pr ovide, necessary information within a reasonable 
period or significantly impedes the investigation" .  There is no evidence on the record of the 
Section 129 proceeding that these essential preconditi ons had been met, and the United States has 
                                                     
 
137 Appellate Body Report, Mexico – Anti-Dumping Measures on Beef and Rice , para. 288; see also  
Argentina's First Submission, para. 177. 
138 US First Submission, paras. 80-81. 
139 US First Submission, para. 82. 
140 USDOC Questionnaire to Acindar, Tubhier and Siderca (31 Oct. 2005) (ARG-13). 
141 Siderca's Response to Questionnaire (30 Nov. 2005) at 2 and Attachment 2 (ARG-15). 
142 Acindar's Response to Questionnaire (30 Nov. 2005) (ARG-14).  WT/DS268/RW 
 Page C-37 
 
 
  never claimed that either company behaved in this recalcitrant manner.  Indeed, the USDOC 
Section 129 Determination itself found that Siderc a "attempted to cooperate with the Department's 
request for information."143   
 
140. In its First Submission, Argentina also enum erated the reasons why the United States failed to 
comply with the obligations of the USDOC under An nex II of the Agreement.  The United States has 
not even attempted to rebut these claims.  
G. THE USDOC FAILED TO INFORM INTER ESTED PARTIES OF THE ESSENTIAL FACTS 
UNDER CONSIDERATION WHICH FORMED THE BASIS FOR THE SECTION 129 DETERMINATION, IN VIOLATION OF ARTICLE 6.9 
 
141. The due process obligations of Article 6.9 are pl aced in an important temporal context.  It 
requires investigating authorities, "before a determinati on is made", to inform all interested parties of 
the essential facts under consideration which form the basis for their decision.  This provision adds 
that such disclosure "should take place in sufficient tim e for the parties to defend their interests."  The 
Korea – Paper AD Duties  Panel made clear that Article 6.9 re quires "a one-time disclosure…before a 
final determination is made…."144  As Argentina argued in its First Submission, the USDOC did not 
inform the interested parties of the essential fact s under consideration that formed the basis of its 
decision.  The Section 129 Determination referred to memoranda to file that had never been disclosed 
to the parties.  Moreover, even the public versi ons of these documents were not made in sufficient 
time for the parties to defend their interests, beca use they were released contemporaneously with the 
Section 129 Determination.    
 
142. The US First Submission offers no substantive re ply to Argentina's claim, other than to make 
the unsubstantiated assertion that somehow these me moranda might not have been part of the 
"essential facts under consideration which form the basis for the decision."145  The memoranda were 
clearly part of the "essential facts under considera tion", and were treated as such by the Section 129 
Determination.  In Argentina – Ceramic Tiles , the Panel found a violation of Article 6.9 on the 
grounds that:  
[The exporters were unable to defend their interests within the meaning of Article 6.9, 
for example, by giving reasons why their responses should not be rejected and by 
suggesting alternative sources for facts ava ilable if their responses were nonetheless 
disregarded. Under these circumstances, we  find that the [Argentine investigating 
authority] did not, by referring the exporters to the complete file of the investigation, fulfil its obligation under Artic le 6.9 to inform the exporters of the "essential facts 
under consideration which form the basis fo r the decision whether to apply definitive 
measures".
146 
143. In the present case, the Argentine respondents could not defend their interests by addressing 
what the USDOC perceived to be "i nconsistencies in data."  As in Argentina – Ceramic Tiles , the 
companies in the present case were "were unable to defend their interests within the meaning of 
Article 6.9, for example, by giving reasons wh y their responses should not be rejected and by 
suggesting alternative sources for facts available if  their responses were nonetheless disregarded."   
 
                                                      
143 USDOC Section 129 Determination at 8 (ARG-16); see also  Argentina's First Submission, 
para. 182. 
144 Panel Report, Korea – Anti-Dumping Duties on Imports of Certain Paper from Indonesia, 
WT/DS312/R, adopted 28 November 2005, para. 7.204 (" Korea – Paper AD Duties" ). 
145 US First Submission, para. 77. 
146 Panel Report, Argentina – Definitive Anti-Dumping Measures on Imports of Ceramic Floor Tiles from 
Italy, WT/DS189/R, adopted 5 November 2001, DSR 2001:XII, 6241, para. 6.129. WT/DS268/RW 
Page C-38  
 
  144. Argentina would emphasize that the drafters of Article 6.9 framed the discipline of this 
provision to cover not just "essential facts", but also  to ensure that responding parties had the ability 
to "defend their interests."  Any references in the USDOC memoranda to "inconsistencies in data" 
meant, by definition, that these respondents had interests to defend.   However, the USDOC failed to 
disclose these essential facts, in clear breach of Article 6.9.  
145. Finally, the United States argues that it could have issued a preliminary ruling if it had been 
given 15 months, rather than 12 months, to impl ement the DSB rulings.  Argentina recalls its 
argument above that all US WTO obligations apply on a concurrent and overlapping basis, and the 
"shortest period of time" determined by an Arbitrator  under Article 21.3(c) is entirely irrelevant to the 
issue of US compliance with its other WTO oblig ations, including under Article 6.9 of the Anti-
Dumping Agreement.  As noted above, the Panel in Korea – Paper AD Duties  stressed that Article 6.9 
requires "a one-time disclosure…before a final determ ination is made."  The Panel did not qualify this 
statement in any way, such as "time permitting" or "if convenient."  In any event, the USDOC made 
no disclosure before the Section 129 Determination was made. 
 
V. ARGENTINA HAD A GOOD FAITH BASIS FOR ITS CLAIM THAT THE UNITED 
STATES HAD VIOLATED ARTICLE 13 OF THE ANTI-DUMPING AGREEMENT 
 
146. The United States asserts that "there is no basis for Argentina's claim," based on "the 
supposed US failure" to implement the determin ation.  The United States explains that the 
determination had been implemente d before the Panel was established.
147 
 147. Argentina agrees that there is no basis now to  proceed with the Article 13 claim because the 
United States has now implemented.  However, Argen tina would like to assure the Panel that it acted 
in good faith in bringing the claim. 
 
148. Argentina brought the claim only after the United States indicated in consultations that it had not implemented the decision for purposes of US law, that it had no intention of doing so, and, as a 
result, that the USDOC Section 129 Determination was not  subject to judicial review in the US courts.  
Argentina even asked for a clarification of this  position in the second consultation, and the United 
States simply reaffirmed its position.  This led Argentina to include the claim. 
 
149. The "implementation notice" appeared in the Federal Register two days before the 
United States filed its First Submission.  According to the Federal Register notice,  USTR instructed 
USDOC to implement the decision more than a month earlier on 16 March, the day before the DSB meeting leading to the formation of this Panel.  This is the basis for the US statement that it had 
"implemented" the decision "before the Panel was established." 
 
VI. THE UNITED STATES HAS FAILED TO BRING THE STATUTORY AND 
REGULATORY WAIVER PROVISIONS INTO COMPLIANCE WITH THE RULINGS OF THE DSB AND WITH US WTO OBLIGATIONS 
 150. The thrust of the US argument is that it was the operation of the statutory waiver provision in 
combination with the regulatory waiver provision that  resulted in the violation of Article 11.3 of the 
Anti-Dumping Agreement.
148   The United States reasons as follows: 
 
[T]he Panel and the Appellate Body analyzed the waiver provisions – the statute and 
the regulations – collectively .  Thus, the United States never had to amend both the 
statute and the regulations – rather, it needed  to ensure that the collective impact of 
                                                      
147 US First Submission, para. 84. 
148 US First Submission, para. 16.  WT/DS268/RW 
 Page C-39 
 
 
  the two was consistent with the DSB  r ecommendations and rulings.  The statute and 
the regulations now no longer creat e the inconsistency in question.149  
151. Section 751(c)(4)(B) of the Tariff Act was neith er repealed nor modified.  Nor can there be 
any dispute that once this statutory provision is invoked, it requires USDOC to make a determination 
that dumping would be likely to continue or recur with respect to the respondent party for which the 
statute has been invoked. 
 152. The United States asserts that by changing th e regulation, or the purported "trigger" for the 
application of the statute, the United States has corrected or neutralized the WTO-inconsistency.
150  
The United States contends there is no longer a WTO-inconsistency because, in the wake of the 
changes to the waiver regulation, the statute w ill now only lead to a mandated finding of likely 
dumping if that party admits that it is likely to dump .  The United States further maintains that such an 
admission is sufficient "evidence" of likelihood.151 
 153. The premise for the US argument is that USDO C controls the "trigger" of the application of 
the statute and, therefore, controls the effect or impact that the statutory waiver provision has on the 
order-wide likelihood determination.  The United St ates maintains that the waiver provisions can no 
longer result in the kind of decision that the origin al Panel and the Appellate Body determined was 
inconsistent with US obligations  under Article 11.3 (i.e., a decision that is based in part on 
"assumptions" and one that is made without the US DOC arriving at a reasoned determination on the 
basis of positive evidence).
152 
 
154. 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 . 153 
155. The position of the United States is that the WTO-inconsistencies identified by the Appellate 
Body were remedied by amendment of the waiver re gulation and that there was no need to repeal or 
amend the statutory provision.  Yet, despite th e regulatory modification undertaken by the United 
States, the operation of the statutory and regulator y waiver provisions will continue to lead to 
determinations that are based on a statutorily- mandated "assumption" that is contrary to US 
obligations under Article 11.3. 
                                                      
149 US First Submission, para. 16. 
150 US First Submission, para. 15. 
151 See US First Submission, paras. 17-21.  
152 See US First Submission, paras. 17-21.  
153 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , paras. 234-235. WT/DS268/RW 
Page C-40  
 
   
156. The US statutory and regulatory waiver provi sions continue to be inconsistent with US 
obligations under Article 11.3 under either of th e scenarios that now exist under USDOC's revised 
waiver regulation:  
• Cases where a respondent party elects 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; and 
• Cases where a respondent party files an affirmative statement of waiver and 
admission that it is likely to dump. 
A. NON-PARTICIPATION IN USDOC SUNSET REVIEW BUT NO AFFIRMATIVE STATEMENT 
OF WAIVER 
 
157. At the outset, Argentina would emphasize that it is up to this Panel to determine how the 
regulatory and statutory waiver provision will operate  in order to determine whether the United States 
has complied with its obligations.  The US descrip tion of how the waiver operates is by no means 
conclusive.  As the Panel stated in US – 1916 Act (EC) : 
 
[P]anels need not accept at face value the characterization that the respondent attaches to its law. A panel may analyze the operation of the domestic legislation and 
determine whether the description of the functioning of the law, as made by the 
respondent, is consistent with the legal stru cture of that Member. This way, it will be 
able to determine whether or not the la w as applied is in conformity with the 
obligations of the Member concerned under the WTO Agreement.
154 
158. The first situation is where a respondent party does not participate in a sunset review, but also 
does not provide an "affirmative" statement of waiv er and "admission" that it will likely dump in the 
future.  This would seem to be the more likel y occurrence in cases where a party elects not to 
participate in a sunset review, given the consequen ces of making the statement against self-interests.   
 159. In such a case, the United States ma intains that USDOC would not invoke 
Section 751(c)(4)(B), the statutory wavier provision.  The United States argues that it eliminated so-
called "deemed waivers."
155  The implementing Federal Register no tice explains that "the Department 
will no longer make company-specific findings for comp anies that fail to file a statement of waiver 
and fail to file a substantive re sponse to the notice of initiation."156  The 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 elec ting to waive its participation in the sunset 
review."
157 
 160. The express terms of the statute demonstrate, how ever, that this is not in fact how the statute 
would operate in such circumstances.  The statute mandates a company-specific likelihood 
determination for any company that elects " not to participate " in a USDOC sunset review.  
Section 751(c)(4) of the Tariff Act provides as follows: 
 
                                                     
 
154 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. 
155 US First Submission, para. 14. 
156 Procedures for Conducting Five-Year ("Sunset ") Reviews for Anti-dumping and Countervailing 
Duty Orders:  Final Rule , 70 Fed. Reg. 62,061, 62,062 (28 Oct. 2005) (ARG-12). 
157 70 Fed. Reg. at 62,063 (ARG-12).  WT/DS268/RW 
 Page C-41 
 
 
  (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 only in th e review conducted by the Commission under 
this subsection. 
(B) Effect of Waiver 
 
In a review in which an interested part y waives its participation pursuant to this 
paragraph, the administering authority shall conclude that revocation of the order or 
termination of the investigation would be lik ely to lead to continuation or recurrence 
of dumping or a countervailable subsidy (as the case may be) with respect to that interested party.
158 
161. Subsection (A) establishes an option that is available for USDOC sunset reviews (i.e., that a 
party may "elect not to participate").  This sub section also establishes who can make such an election 
(i.e., respondent interested parties).159  Subsection (B) then establis hes what is the "effect" or 
consequence of a waiver (i.e., non-pa rticipation) 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. 
 162. Consequently, in the circumstance where a r espondent 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 would be likely for that party. 
 
163. 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 revi ew in which an interested party waives its 
participation"), does not change the analysis.  The title of the Section 751(c)(4) is "Waiver of 
participation by certain interested parties."  Sub sections (A) and (B) are both integral to the operation 
of Section 751(c)(4) and these subsections must  be read together in determining how 
Section 751(c)(4) operates.  Subsection (A) must be read so as to have some meaning.
160 
 164. Under US law, a US statute will prevail over a US regulation where the two measures are 
inconsistent.
161  In addition, although an agency such as the USDOC may promulgate regulations 
                                                      
158 Section 751(c)(4) of the Tariff Act of 1930, codified at 19 U.S.C. § 1675(c)(4) (ARG-33). 
159 This is the meaning of the phrase to "An interest ed party described in section 1677(9)(A) or (B)." 
160 See Shoshone Indian Tribe v. United States , 364 F.3d 1339, 1349 (Fed. Cir. 2004) ("[a]ccepted rules 
of statutory construction suggest that we should attribute meaning to all of the words in the Act if possible"); Texas State Comm'n for the Blind v. United States , 796 F.2d 400, 419 (Fed. Cir. 1986) ("Basic principles of 
statutory construction require that effect should be given to every word of the statute so that no part will be 
rendered meaningless.") see also  Norman J. Singer, Sutherland on Statutory Construction, Section 46:06 (6
th ed. 
2000) ("A statute should be construed so that effect is  given to all its provisions, so that no part will be 
inoperative or superfluous, void or insignificant . . . ."). 
161 Aerolineas Argentinas v. United States , 77 F.3d 1564, 1575 (Fed. Cir. 1996) (holding that "a 
regulation cannot override a clearly stated statutory enactment" (citing Brush v. Office of Personnel 
Management , 982 F.2d 1554, 1560 (Fed. Cir. 1992) (noting that a "regulation must be held to be invalid since it 
does not comport with the clear statutory mandate")); see also  United States v. Larionoff , 431 US 864, 873 
(1977) (concluding that a regulation is valid only if it is consistent with the statute under which it was 
promulgated).   WT/DS268/RW 
Page C-42  
 
  pursuant to authority granted by Congress, that ag ency cannot through rule making confer on itself 
any greater authority than that conferred under the governing statute.
162  Accordingly, where, as is the 
case, the statute mandates that when a party elects not  to participate in a USDOC sunset review, the 
USDOC shall conclude that dumping is likely for that company, the Congressional mandate of the 
statute cannot be overridden by USDOC's modification of the regulation so that the statutory mandate 
becomes less broad. 
 165. In other words, under US law, USDOC cannot  contravene the clear intent of Congress as 
expressed in the statute (which intent mandates a company-specific likelihood determination for any 
company 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., t hose that file affirmative statements of waiver). 
 166. Consequently, notwithstanding 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 USDOC sunset review, and is therefore incons istent with Article 11.3 of the Anti-Dumping 
Agreement.  
B. CASES THAT INVOLVE MULTIPLE EXPOR TERS, WHERE SOME MAY FILE AFFIRMATIVE 
STATEMENTS OF WAIVER (AND ADMIT THAT  THEY ARE LIKELY TO DUMP), WHILE 
OTHER EXPORTERS PARTICIPATE AND TRY TO PROVE THAT DUMPING WOULD NOT BE LIKELY  
 
167. It is clear that the statute mandates a finding of likely dumping with respect to a respondent party that files an affirmative statement of waiver  and an admission that it is likely to dump.  The 
statute mandates such a finding, and the United States takes the position that this is consistent with US 
WTO obligations because the compan y's admission constitutes positive evidence regarding what it is 
likely to do if the order were revoked.
163 
 168. The question for this Panel, however, is whether under such a circ umstance, the USDOC's 
order-wide (i.e., country-wide) determination wo uld be affected by the statutorily-mandated 
company-specific finding of likely dumping. 
 
169. Article 11.3 permits a WTO Member to c ontinue an anti-dumping duty beyond five years 
only when certain strict requirements have been satis fied.  The administering authority is required to 
conduct a "review" and to make a "determina tion" that both dumping and injury would be 
likely/probable in the event of termination of th e duty.  The review and determination required to 
extend the anti-dumping duties beyond five years must be forward-looking, based on positive 
evidence, and must be the result of a rigorous  examination of the evidence adduced by the 
authorities.
164  Compliance with the strict requirements of Article 11.3, as those obligations have been 
clarified by the Appellate Body, necessitates that a WTO Member adhere to certain minimum disciplines in making a sunset determination.  In the absence of compliance, the duty must be 
terminated. 
 
                                                     
 
162 Killip v. Office of Personnel Management , 991 F.2d 1564, 1569 (Fed. Cir. 1993) (holding that 
"[t]hough an agency may promulgate . . . regulations pursuant to authority granted by Congress, no such . . . regulation can confer on th e agency any greater author ity than that conferred under the governing statute") 
(citing Bowen v. Georgetown Univ. Hosp. , 488 US 204, 208 (1988); Ernst & Ernst v. Hochfelder , 425 US 185, 
213-14 (1976)). 
163 See US First Submission, paras. 17-21.  
164 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , paras. 105, 111-115.  WT/DS268/RW 
 Page C-43 
 
 
  170. When a party affirmatively waives its partic ipation, the regulation prevents the USDOC from 
developing the requisite factual information.  Even assuming arguendo  that an admission of likely 
dumping could constitute positive evidence, USDOC is  still required to conduc t a "review" and to 
make a "determination" that dumping would be likely/pr obable in the event of termination of the duty.  
The review and determination required to extend the anti-dumping duties beyond five years must be 
forward-looking, based on positive evidence, and must be the result of a rigorous examination of the 
evidence adduced.165  That determination cannot be based on "assumptions" based on a statutorily-
mandated finding of likelihood and rema in consistent with the requirements of Article 11.3.  In a case 
where other evidence adduced conflicts with an "a dmission of likely dumping", the authority would 
not have the discretion to weigh that evidence ag ainst the admission made by the waiving party. 
 
171. The probative value that should be assigned to  an "admission," like any piece of evidence, 
could vary significantly from c ase to case depending upon the circumstances in which the admission 
is made and competing evidence.  Therefore, an evaluation of the assessment of this evidence will 
always be necessary before reaching a conclusion.   The statutory waiver provision would permit no 
such assessment and would require a finding of likely dumping for that company.  And as the 
Appellate Body has already ruled, a statutorily-mandated, company-specific finding will always have an affect on USDOC's country-wide determination.   172. In the end, the US choice of implementation is curious.  The problem is quite clear:  statutorily-mandated findings of likelihood are inconsis tent with the obligations of Article 11.3.  The 
United States should have eliminated the provision.  As long as it is there, USDOC will be required to 
make statutorily-mandate findings in cases where co mpanies have "admitted" that they would likely 
dump, and that finding will affect the country-wide determination.  Also, USDOC may have to make 
such findings for companies who invoke their statutor y right without filing an affirmative statement of 
waiver.  There is no basis for this Panel to find th at this constitutes compliance with US obligations. 
 
VII. THE UNITED STATES PROVIDES NO REASON WHY THIS PANEL SHOULD 
NOT EXERCISE ITS DISCRETION AND SUGGEST THAT THE UNITED STATES REVOKE THE ANTI-DUMPING MEASURE 
 
173. The United States offers a short and formalistic  response to Argentina's request that the Panel 
exercise its discretion in this case and suggest th at the measure be terminated.  The United States 
asserts that it is unclear whether Argentina is ask ing for a recommendation or a suggestion, but that, 
either way, the Appellate Body has already ruled that there is no right to termination.
166 
 174. Argentina is surprised by the US claim of c onfusion.  Argentina has raised the issue of its 
right to termination of the anti-dumping measure on OCTG from Argentina throughout the course of 
this proceeding.  Argentina requested that the original Panel exercise its discretion under DSU 
Article 19.1 and suggest that the measure be terminated,
167 and made a similar request to the 
Appellate Body in the subsequent appeal.168  Argentina's position that it had a right to termination of 
the anti-dumping measure also figured prominently in  the consultations between the parties prior to 
the establishment of the original panel, and prio r to the establishment of the compliance panel. 
 
175. The primary issue before this Panel is to  determine whether the United States is now in 
compliance with its obligations under Article 11.3 a nd Article 6.2.  For the reasons explained by 
Argentina, the United States is not in compliance.  Also, given the manner in which the United States 
attempted to bring itself into compliance, the United States violated Article 6.  Argentina respectfully 
                                                      
165 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , paras. 105, 111-115. 
166 US First Submission, paras. 85-86.  
167 See Argentina's First Submission (before the original panel), 15 October 2003, paras. 315-323. 
168 See Other Appellant's Submission of Argentina, 15 September 2004, paras. 300-307.  WT/DS268/RW 
Page C-44  
 
  requests that this panel make specific rulings that establish the failure of th e United States to bring 
itself into compliance.  These are set forth in paragraph 225 of Argen tina's First Submission. 
 176. In addition, Argentina also is asking that th is Panel suggest that the anti-dumping duty order 
on OCTG from Argentina be terminated.  The reas ons are explained clearly in Argentina's First 
Submission.
169  The Panel declined in the first instance because it saw "no particular reason" for such 
a suggestion.170  The US purported attempts to implem ent the recommendations and rulings of the 
DSB provide all the particular reasons necessary why a suggestion is appropriate in this case. 
 177. The US citation to the Appellate Body decision in US – OCTG From Mexico  does not settle 
the issue.  The Appellate Body has made several stat ements relevant to the nature of the obligations 
under Articles 11.3 and 11.4 of the Anti-Dumping Agreement, including 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 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 .
 171 
178. In conducting the requisite "review" and "d etermination" under Article 11.3, the Appellate 
Body's clarifications of these obligations confirm that USDOC was required to:  
• make a prospective determination, requiring a forward-looking analysis; 
• take an active rather than a passive role  in developing and assessing the information; 
• 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; 
• not simply assume that likelihood exists; and 
• assess the information before it objectively and to have a sufficient factual basis to 
allow it to draw reasoned and adequate conclusions concerning such likelihood.
172 
 
179. These clarifications by the Appellate Bo dy are consistent with its statement in US – OCTG 
from Mexico , and do not preclude a suggestion by this Pa nel that the United States terminate the 
measure.  Rather, the Appellate Body stated  that a WTO-inconsiste nt 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 leadin g to a WTO-consistent determination under that 
                                                     
 
169 See Argentina's First Submission, paras. 210-224. 
170 Panel Report, US – Oil Country Tubular Goods Sunset Review , para. 8.5. 
171 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , paras. 104-105 (emphasis 
added). 
172 See Argentina's First Submission, paras. 43-49.  WT/DS268/RW 
 Page C-45 
 
 
  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 reasonable period of time accorded to the implementing Member for implementation.
173  
 
180. Argentina believes that the Appellate Body re ferences to the DSU indicate that the Appellate 
Body was reacting to the notion that immediate  termination would undermine the Member's ability to 
reach its own conclusions – in light of the DSB rulings.  This does not mean, however, that the 
Appellate Body meant to retreat from its earlier stat ements that, in the absence of compliance with the 
strict requirements of Article 11.3, the measure mu st be terminated.  Rather, the Appellate Body 
simply recognized that the defending Member has a ri ght to reach that conclusion on its own, and that, 
in some cases, it might not be necessary to make the suggestion to terminate. 
 181. In this case, it is necessary.  The US DOC has now made insufficient likelihood 
determinations twice.  The United States h as continued the anti-dumping measure on OCTG from 
Argentina without ever engaging in the "review"  and making the "determination" required by 
Article 11.3.  182. This Panel enjoys discretion under DSU Article 19.1, and it should exercise that discretion in 
this case.  Argentina notes that there have been many instances in which Panels have exercised their 
discretion to make a suggestion regard ing implementation.  Examples include: 
 
• the Panels in both EC – Export Subsidies on Sugar
174 and EC – Trademarks and 
Geographical Indications (US)175 made suggestions on how the EC could bring its 
measures into conformity with its WTO obligations; 
• in the Argentina Poultry  case, the Panel suggested that Argentina repeal the measure 
imposing definitive anti-dumping measures on poultry from Brazil;176 
• in the "Byrd Amendment" case, the Pa nel called for the repeal of the WTO-
inconsistent US statute;177 
• in the US – Textiles from Pakistan  case, the Panel called for the prompt removal of 
the import restriction;178 
• in the Guatemala Cement  dispute, the Panel recommended the revocation of the anti-
dumping measure;179; and 
• in the Lead Bars  case, the Panel called for a revision of US administrative 
practices.180 
                                                      
173 Appellate Body Report, US – OCTG from Mexico , para. 187 (emphasis added). 
174 Panel Report, European Communities – Export Subsidies on Sugar, Complaint by Australia , 
WT/DS265/R, adopted 19 May 2005, as modified by Appellate Body Report, WT/DS265/AB/R, 
WT/DS266/AB/R, WT/DS283/AB/R. 
175 Panel Report, European Communities – Protection of Trademarks and Geographical Indications for 
Agricultural Products and Foodstuffs, Complaint by the United States , WT/DS174/R, adopted 20 April 2005, 
para. 7.208.  
176 Panel Report, Argentina – Definitive Anti-Dumping Duties on Poultry from Brazil , WT/DS241/R, 
adopted 19 May 2003, para. 8.7. 
177 Panel Report, United States – Continued Dumping and Subsidy Offset Act of 2000 , 
WT/DS217/234/R, adopted 27 January 2003, para. 8.6. 
178 Panel Report, United States – Transitional Safeguard Measure on Combed Cotton Yarn from 
Pakistan , WT/DS192/R, adopted 5 May 2001, para. 8.5. 
179 Panel Report, Guatemala – Definitive Anti-Dumping Measures on Gray Portland Cement from 
Mexico , WT/DS156/R, adopted 17 November 2000, para. 9.6. WT/DS268/RW 
Page C-46  
 
   
183. This is a non-exhaustive list.  Previous pa nels have recognized that suggestions under DSU 
Article 19.1 would be appropriate to  help promote the resolution of the dispute, particularly in the 
present case, where a suggestion is necessary to e nd a "never-ending cycle" of continuous WTO 
violations followed by non-compliance in implemen tation.  As the Appellate Body in the found in 
US – FSC (Article 21.5 – EC II) , given the possibility that complian ce proceedings can be abused and 
undermine the underlying rights and obligations of the parties, compliance proceedings should not 
"lead to a potentially 'never-ending cycle' of disput e settlement proceedings and inordinate delays in 
the implementation."
181  The US "implementing" measures in the present case have created the 
prospect of such an interminable cycle. 
 
184. There is very little chance that the Appellate  Body would disturb a decision by the Panel to 
make a suggestion in this case, just as it did not dist urb this and other Panel decisions not to exercise 
its discretion on previous occasions given the au thority explicitly provide d to Panels by DSU 
Article 19.1.  The issuance of a suggestion would not abuse the discretion afforded by the DSU, and 
in this case it is vital to preserve Argentina's right s, and it is necessary to give meaning to the rights 
and obligations in Articles 11.3 and 11.4 of the Anti-Dumping Agreement.  
VIII. CONCLUSION 
 
185. For the foregoing reasons, Argentina respectfu lly requests that the Panel reject the US 
arguments in their entirety and find that the United States has failed to implement the 
recommendations and rulings of the DSB, and rema ins in violation of its WTO obligations.  In 
particular, Argentina requests that the Panel ma ke the findings as requested in paragraph 225 of 
Argentina's First Submission.  
                                                                                                                                                                    
 
180 Panel Report, United States – Imposition of Countervailing Duties on Certain Hot-Rolled Lead and 
Bismuth Carbon Steel Products Originating in the United Kingdom , WT/DS138/R, adopted 7 June 2000, 
para. 8.2. 
181 Appellate Body Report, United States – Tax Treatment For "Foreign Sales Corporations" Second 
Recourse To Article 21.5 Of The DSU By The European Communities , WT/DS108/AB/RW2,  adopted 
14 March 2006, para. 86 (" US – FSC (Article 21.5 – EC II )").  WT/DS268/RW 
 Page C-47 
 
 
  ANNEX C-2 
 
SECOND WRITTEN SUBMISSION 
OF THE UNITED STATES 
 
18 May 2006 
 
 
Page  
 
Table of Repo rts Cited......................................................................................................... ............. 48 
Exhibit List ................................................................................................................... ..................... 49 
I. INTRODUCTION ............................................................................................................... 50 
II. THE WAIVER PROVISIONS ........................................................................................... 52 
A. AFFIRMATIVE WAIVER .......................................................................................................... ........52 
B. "DEEMED" WAIVERS............................................................................................................ ...........53 
III. THE SECTION 129 DETERMINATION ......................................................................... 54 
A. COMMERCE'S USE OF "NEW  FACTUAL INFORMATION..........................................................54 
B. THE FINDING THAT DUMPING WAS LIKELY TO CONTINUE OR RECUR ............................56 
1. Significant Decreases in Import Volumes.......................................................................... 56 
2. Acindar ..................................................................................................................... ............ 57 
3. Siderca..................................................................................................................... .............. 59 
C. EVIDENTIARY AND PROCEDURAL RE QUIREMENTS OF ARTICLE 11.3 AND 
ARTICLE 6...................................................................................................................... ....................62 
1. Article 6.1................................................................................................................. ............. 63 
2. Article 6.2................................................................................................................. ............. 63 
3. Procedural Requirements in Articles 6.4, 6.5.1, 6.6, and 6.9............................................ 64 
(a) Article 6.4............................ .................................................................................... .............. 64 
(b) Article 6.5.1................... ........................................................................................... ............. 66 
(c) Article 6.6...................... .......................................................................................... .............. 66 
(d) Article 6.9...................... .......................................................................................... .............. 67 
4. Article 6.8 and Annex II .................................................................................................... ..69 
IV. ARGENTINA'S REQUEST FOR A SUGGESTION ....................................................... 70 V. CONCLUSION .................................................................................................................. ..71 
 WT/DS268/RW 
Page C-48  
 
  Table of Reports Cited 
 
Short Form Full Citation 
Argentina – Poultry  Panel Report, Argentina – Definitive Anti-Dumping Duties on 
Poultry from Brazil,  WT/DS241/R, adopted 19 May 2003 
 
Argentina – Tiles  Panel Report, Argentina – Definitive Anti-Dumping Measures 
on Imports of Ceramic Floor Tiles from Italy , WT/DS189/R, 
adopted 5 November 2001 
 
Guatemala – Cement II (Panel)  Panel Report, Guatemala – Definitive Anti-Dumping 
Measures on Grey Portland Cement from Mexico , 
WT/DS156/R, adopted 17 November 2000 
 
US – OCTG (Argentina) (AB)  Appellate Body Report, United States – Sunset Reviews of 
Anti-Dumping Measures on O il Country Tubular Goods from 
Argentina , WT/DS268/AB/R, adopted 17 December 2004 
 
US – OCTG (Argentina) (Panel)  Panel Report, United States – Sunset Reviews of 
Anti-Dumping Measures on O il Country Tubular Goods from 
Argentina , WT/DS268/R and Corr.1, adopted 
17 December 2004, as modified by the Appellate Body Report, WT/DS268/AB/R 
 
US – OCTG (Mexico) (AB)  Appellate Body Report, United States – Anti-Dumping 
Measures on Oil Country T ubular Goods from Mexico , 
WT/DS282/AB/R, adopted 28 November 2005 
 
US – Corrosion Resistant  (AB)  Appellate Body Report, United States – Sunset Review of 
Anti-Dumping Duties on Corrosion-Resistant Carbon Steel 
Flat Products from Japan,, WT/DS244/AB/R, adopted 
9 January 2004 
 
US – Privatization  (21.5)   Panel Report, United States – Countervailing Duty Measures  
Concerning Certain  Products from the European 
Communities: Recourse to Article 21.5 by the European Communities,  WT/DS212/RW, adopted 27 September 2005 
 
EC – Bed Linen (21.5) (AB)  Appellate Body Report, European Communities – 
Anti-Dumping Duties on Imports of Cotton-Type Bed Linen 
from India: Recourse to Article 21.5 of the DSU by India , 
WT/DS141/AB/RW, adopted 24 April 2003 
 
EC – Bed Linen (21.5) (Panel)  Panel Report, European Communities – Anti-Dumping Duties 
on Imports of Cotton-Type Bed Li nen from India: Recourse to 
Article 21.5 of the DSU by India , WT/DS141/RW, adopted 
24 April 2003, as modified by the Appellate Body Report, 
WT/DS141/AB/RW 
 
US – Shrimp (21.5) (AB)  Appellate Body Report, United States – Import Prohibition of 
Certain Shrimp and Shrimp Products: Recourse to 
Article 21.5 of the DSU by Malaysia , WT/DS58/AB/RW, 
adopted 21 November 2001 
 
US – Zeroing (EC) (AB)  Appellate Body Report, United States – Laws, Regulations 
and Methodology for Calculating Dumping Margins ("Zeroing"), WT/DS294/AB/R, adopted 9 May 2006  
  WT/DS268/RW 
 Page C-49 
 
 
  Exhibit List 
 
 
Number  Document  
 US-7 Mexican Secretariat of Trade and Indus trial Development, Revised Final Resolution 
in the Anti-duping Investigation of High Fructose Corn Syrup, 20 September 2000. 
 US-8   Small Diameter Circular Seamless Carbon and Alloy Steel Standard, Line, and 
Pressure Pipe From Argentina, 60 Fe d. Reg. 31,953 (19 June 1995) (final 
determination of sales at less than fair value). 
 US-9   US Department of Commerce,  Public  Service List, Section 129 Determination, Oil 
Country Tubular Goods from Argentina. WT/DS268/RW 
Page C-50  
 
  I. INTRODUCTION 
 
1. The United States complied with the DSB recommend ations and rulings in this dispute.  First, 
the United States amended its regulations to elim inate the possibility that Commerce's order-wide 
determinations would be based on assumptions about likelihood or recurrence of dumping. 
 
2. The United States also revised its sunset de termination to remedy its  consideration of the 
payment of cash deposits (based on a finding of dumping in the original investigation) at the rate of 
the original investigation as evidence that dumping ha d continued over the life of the order.   Rather 
than relying on that information as evidence of a producer's dumping behaviour, Commerce solicited 
additional information from the companies identifie d by Argentina as OCTG producers.  Neither 
company was able to provide cost data from the actual period of review; Siderca provided estimated 
data instead.  After carefully reviewing the estimat ed data, Commerce considered the information to 
be unreliable and made no finding as to whether Si derca had likely dumped ove r the period of review. 
With respect to Acindar, Commerce reviewed  data from secondary independent sources and 
concluded that Acindar had likely dumped during th e period of review.  Therefore, Commerce cured 
the flaw identified by the original Panel.  3. Argentina contends that Commerce erred in collecting new information. The United States is 
unaware of any other dispute in which a complaining party took issue with an investigating authority's 
collection of new and relevant information in taki ng a measure to comply with DSB recommendations 
and rulings.  As discussed further below, the Unite d States has collected new information in the past; 
so has Mexico, for example.  Even the arbitrat or establishing the reasonable period of time under 
Article 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of Disputes 
("DSU") understood that Commerce would collect new information, only inquiring to confirm that 
such information would be confined to the original review period. 
 
4. Indeed, a recurring theme of this dispute is th e Argentine respondents' persistent reluctance to 
fulfil their obligation to provide the US Departme nt of Commerce ("Commerce") with information, 
information that Argentina in this proceeding has asserted was necessary for Commerce to make an 
affirmative determination.  While Argentina empha sizes Commerce's obligation to be "active" rather 
than "passive" – without explaining just what th at means – Argentina ignores the Appellate Body's 
recognition of the fact that exporters often possess the best evidence of their likely future pricing 
behaviour.
1  In the original review, Siderca filed the thinnest of submissions and purported not to 
know the identity of the lone shipper of Ar gentinean OCTG during the period of review.2  T h a t  
shipper turned out to be Acindar – which never iden tified itself, preferring not to participate in the 
sunset review at all. 
 
5. Having persuaded this Panel that the info rmation upon which Commerc e relied in concluding 
that dumping continued over the life of the orde r was insufficient, Argentina now complains that 
Commerce has collected information to remedy the defi ciency in the review record attributable to the 
refusal to participate by the longer shipper of Arge ntina OCTG at that time.  The record reveals why 
Argentina has adopted this argument: the Argentine respondents did not provide key information that 
Commerce requested into seeking to comply with  the DSB recommendations and rulings.  Siderca 
elected to provide estimated cost data that was five  to ten years out of date; Acindar provided no cost 
data at all.  6. In spite of all of this, Argentina attempts to lay blame for any evidentiary deficiencies on 
Commerce.  Argentina goes further, advancing claims under Article 6 of the Agreement on 
Implementation of Article VI of the Ge neral Agreement on Tariffs and Trade 1994 ("AD Agreement") 
                                                     
 
1 US – Corrosion Resistant (AB) , para. 199. 
2 Siderca 2 August 2000 Submission, at 3  (Exhibit ARG-25)  WT/DS268/RW 
 Page C-51 
 
 
  are simply unwarranted.  Argentina acts as though it has obtained an "admission" from the United 
States that those aspects of Article 6 relating to ev idence and procedure are applicable to the measure 
taken to comply.  But the United States has never said anything to the contrary. 
 7. The United States takes its Article 6 obliga tions seriously.  Indeed, Commerce went beyond 
the actual recommendations and rulings of this dispute, amending its regul ations in order to make it as 
clear as possible that respondent interested partie s may request a hearing. Argentina's response:  
Commerce is in breach because respondents did not requ est a hearing.  Similarly, one of Argentina's 
Article 6 claims is based on Commerce's "late" placement on the record of the following background 
information: 
 
 About Preston Price Publishing 
 Preston Publishing is the "scorekeeper" in today 's ever-changing pipe & tube market.  We do 
not buy, sell, manufacture or distribute pipe & tube. 
 Preston Publishing Company, Inc. Was created in 1980 by Douglass P. Yadon, to track the 
world's shipment and consumption of steel pipe & tube. 
 His 40 years of experience in the pipe and tube business has included both marketing and 
operations, and he has served as a consultant to the industry, as well as US and foreign 
governments. 
 
8. The actual price information had been put  on the record on 22 November 2005.  Thus, 
Argentina takes issue not with the time when the actual price data were placed on the record, but 
rather with the time when purely descriptive inform ation about the company that was the source of the 
price data was placed on the record.  This is just one example of what Argentina holds up as a breach 
of Article 6 that should subject the United States to suspension of concessions for failing to comply in 
this dispute. 
 
9. More perplexing still, Argentina takes the unusual position of advancing an argument that 
squarely contradicts findings the Panel made in the original pr oceeding.  Unable to demonstrate that 
an exporter's admission of likely dumping is anything but positive evidence, and unable to 
demonstrate that any information would be more  probative in connection with a company-specific 
finding than that admission, Argentina now in sists that Commerce erred by amending only the 
regulations to come into compliance with the Pane l's findings regarding "deemed waivers."  However, 
Argentina's argument requires the Panel to conclude  that it erred when it expressly found that the 
"deemed waiver" category was a creation of the regulati ons, rather than the statute.  The United States 
is not aware of any Article 21.5 proceeding in which a panel declared itself to have made an erroneous 
finding – and then found that the responding party fa iled to comply on the basis of the panel's own 
alleged error.  That approach seems to turn the purpose of compliance proceedings on their head.
3 
 10. Argentina has sought to bury these proceedings  in an avalanche of claims that it cannot 
substantiate.  The measures taken to comply we re consistent with th e DSB recommendations and 
rulings.  Argentina is not concerned with whet her the United States actually complied with those 
recommendations and rulings; rather, Argentina want s an adverse finding of any kind, no matter how 
tenuous the claim.  The United States respectfully requests that the Panel d ecline to indulge that 
request.  
                                                     
 
3 See, e.g., US – Shrimp (21.5) (AB) , para. 97. WT/DS268/RW 
Page C-52  
 
  II. THE WAIVER PROVISIONS 
 
11. In its first submission, Argentina asserted that the statutory a nd regulatory provisions 
allowing respondents to waive participation in th e Commerce portion of a sunset review are WTO-
inconsistent in s ituations involving "affirmative waivers," i.e., a situation in which a respondent files a 
statement of waiver, which includes an admission that it is likely to dump.  Argentina now also asserts 
that the waiver provisions are inconsistent in situ ations involving respondent parties who do not file 
an affirmative statement of waiver.
4  Both of these arguments are without merit; indeed, the latter 
squarely contradicts findings made by the original Panel.  
A. AFFIRMATIVE WAIVER 
 12. In its first submission, Argentina asserted that the waiver statute is WTO-inconsistent because 
it had not been repealed, and the amendment to  the regulations could not render the statute 
"inoperative."
5  The United States rebutted these asser tions by noting that nothing in the 
recommendations and rulings required the United St ates to repeal, amend, or render the statute 
inoperative.  Argentina has not responded to that argument.  13. Argentina deviates from its original argumen t that waiver provisions are inconsistent 
whenever a respondent files a statement of waiver.  It now contends that the waiver provisions are 
inconsistent in a scenario with multiple respondents, some of whom affirmatively waive 
participation.
6  Argentina asserts that the waiver provisions prevent Commerce from conducting a 
review, as required by Article 11.3, because "other  evidence" adducing "conflicts" would not be 
weighed against these admissions of likelihood of dumping.7 
 
14. Argentina made the same argument in its first submission.  The United States responded: 
 
Argentina fails to specify what factual information is not  being developed with 
respect to that company, and why that mystery factual information would be more probative than the company's own admission.  It is worth noting that a sunset review 
is a prospective and counterfactual inquiry, a nd it is difficult to conceive of evidence 
that would establish that a company is not  likely to dump in the future when the 
company has itself stated that it will.
8  
15. Argentina has no response for this argument.  Rather, Argentina alters the factual scenario 
and then simply continues with the same vague a ssertions about how such a finding would prevent 
Commerce from conducting a "review."9  Regardless of the number of participants in a proceeding, 
                                                      
4 Argentina Second Submission, para. 156. 
5 Argentina First Submission, paras. 203-204. 
6 Argentina Second Submission, para. 170.  Argentina conditions its argument on an " arguendo" 
assumption that a statement of likely dumping by an exporter is positive evidence.  The United States would 
simply note that Argentina has offered no argument that such a statement is not positive evidence. 
7 Argentina Second Submission, para. 170. 
8 US First Submission, para. 18. 
9 Japan suggests that importers could file statements that they will not import dumped merchandise.  
Japan Third Party Statement, para. 24.  However, Japan's assertion here is belied by the Appellate Body's 
reasoning (and Japan's own arguments) in US - Zeroing (EC) .  In that dispute, Japan took the position that 
margins of dumping must be calculated on an exporter -specific basis for all of the exporter's transactions over 
the period of review ( US – Zeroing (EC) (AB) , para. 84), and the A ppellate Body agreed. US – Zeroing (EC) 
(AB), para.  128. The Appellate Body's analysis means that the margin of dumping must be calculated not on a 
transaction-specific basis at the time of importation but ra ther only after the period of review is complete (so 
that "all" the exporter's transactions can be taken into  account, as Japan and the Appellate Body insist is 
required).  Therefore, because the margin of dumping cannot be calculated until after the importations have  WT/DS268/RW 
 Page C-53 
 
 
  there is nothing WTO-inconsistent about a company-specific finding of likelihood based on that 
company's admission that it is likely to dump .  Argentina has not proven the contrary.10  
 
B. "DEEMED" WAIVERS 
 16. In its second submission, Argentina stretches its arguments even further, arguing that the 
statute is WTO-inconsistent because it allegedly mandates a finding of likelihood with respect to companies that do not participate and do not file a st atement of waiver.   Argentina's argument runs 
contrary to the express findings this Pa nel made with regard to the statute.
11 
 
17. The United States recalls the Panel's descrip tion of the operation of the waiver provisions: 
 
According to Section 751(c)(4)(A) of the Tari ff Act, an interested party in a sunset 
review may elect to waive its right to pa rticipate in the USDOC part of a sunset 
review. Section 351.218(d)(2)(i) of the Regul ations provides that interested exporters 
who wish to waive participation may do so by submitting a statement of waiver to the 
USDOC.  Under Section 351.218(d)(2)(iii) of the Regulations, an exporter's failure to 
submit a complete substantive response to the notice of initiation is deemed to 
constitute a waiver of its right to participate in the USDOC proceedings.  In either 
case, the application of Section 1675(c)(4) of the Tariff Act leads to the same result: 
The USDOC "shall" find likelihood of continuation or recurrence of dumping with 
respect to an exporter which waives its right to participate. 
We consider it important to note that the distinction between affirmative and deemed 
waivers stems from Section 351.218(d)(2)(iii) of the Regulations, not the Tariff Act .  
The Tariff Act simply provides that interested  parties may choose not to participate in 
the USDOC part of a sunset review, and that the effect of a waiver is an affirmative 
finding of likelihood by the USDOC.  Sec tion 351.218(d)(2)(iii) of the Regulations, 
however, creates the deemed waiver category by stipulating that submission of an incomplete, or no, response to the notice of initiation also constitutes a waiver.  
Therefore, our findings regarding affirmative waivers will have implications on the 
Tariff Act whereas those relating to deemed waivers will only affect 
Section 351.218(d)(2)(iii) of the Regulations .
12 
                                                                                                                                                                     
been made, and cannot be calculated at the time of importation, the importer will have no way of knowing at the 
time of importation whether it was importing dumped merchandise into the United States.  The importer will not 
know until after the period of review is complete, at some later date.  Thus, Japan is suggesting that the importer file a statement that of necessity w ould be speculative; as a result, the probative value of such a statement could 
not possibly outweigh the exporter's own statement that it is likely to dump. 
10 Argentina casually, and without citation, states th at "statutorily-mandated findings of likelihood are 
inconsistent with the obligations of Article 11.3."  See, Argentina Second Submission, para. 172.  That is simply 
not correct.  The Appellate Body cons idered that a statutorily-mandated assumption of company-specific 
likelihood was not WTO-inconsistent.  See, e.g. , US – OCTG (Argentina) (AB) , para. 232.  (The phrase 
"statutorily-mandated" does not appear in the original Pa nel's report; rather, the original Panel stated that an 
investigating authority simply cannot assume, without further inquiry, that a company is likely to continue 
dumping simply because it did not participate in a review.  See US – OCTG (Argentina) (Panel) , para. 7.107.)  
As the United States has noted, any "statutorily-manda ted" finding is no longer based on an assumption but 
rather on evidence provided by the respondent itself.  Argentina has failed to explain how a respondent's 
statement that it is likely to dump would not constitute "positive" evidence. 
11  While Argentina states in Section VI.A of its second submission that the statute requires such a 
finding, Argentina later is less definitive, stating that "USDOC may have to make" a company-specific 
likelihood determination for companies that do not file an affirmative statement of waiver.  See Argentina 
Second Submission, para. 172. 
12  US – OCTG (Argentina) (Panel) , para. 7.84-7.85 (emphasis added). WT/DS268/RW 
Page C-54  
 
   
The Appellate Body did not disturb these findings.  18. The circumstance Argentina d escribes – where a respondent do es not participate but does not 
file a statement of waiver – is precisely what the Panel had called a "deemed waiver":  
 
according to Section 351.218(d)(2)(iii) of the Regulations, the USDOC will consider 
the failure of an interested party to su bmit a complete substantive response to the 
notice of initiation of a sunset review to c onstitute a waiver of participation in the 
USDOC's sunset review proceedings. We will refer to this as an "implicit " or 
"deemed" waiver.
13 
19. Commerce repealed Section 351.218(d)(2)(iii)  and thus eliminated the deemed waiver 
provision, and Argentina does not argue to the contra ry.  Rather, Argentina now argues that the statute 
requires Commerce make an affirmative finding with r espect to companies that do not file a statement 
of waiver and do not participate.  But that argument runs counter to the Panel's own findings in the 
original proceeding.  The Panel could not have made it clearer that the "deemed waiver" findings had 
no implications  for the statute, but only for the regulati ons.  Therefore, the United States came into 
compliance by amending only the regulations.   
III. THE SECTION 129 DETERMINATION 
 20. Argentina continues to assert that Commerce w as not entitled to collect new information, and 
that in any event Commerce's new determinati on is inconsistent with Article 11.3 of the 
AD Agreement.  
A. COMMERCE'S USE OF "N EW FACTUAL INFORMATION 
 
21. Argentina advances a position regarding the u se of "new factual information" that is found 
nowhere in the text of the DSU, nor has it ever b een referred to by a panel or the Appellate Body.  
Argentina asserts that Commerce could only have lo oked at "new" factual information (as opposed to 
"clarifying" information)14 if the DSB had upheld the evidentia ry basis for Commerce's decision but 
found that Commerce had "failed to explain adequately its decision."15 
 22. Argentina's argument would ha ve the curious consequence of permitting authorities to collect 
new information only where that information is unnecessary.  If a Member's decision were found to have a "sufficient evidentiary basis," it would not, by definition, be necess ary to gather additional 
evidence.  Therefore, Argentina's argument eff ectively would prevent Members from ever collecting 
new information when doing so would be necessary.  23. Argentina argues that the textual basi s for its position is found in Article 11.3.
16  However, 
Article 11.3 says nothing about when new information can or cannot be collected.  The only "temporal limitation" in Article 11. 3 is that the review must be initiated before the five year 
                                                     
 
13  US – OCTG (Argentina) (Panel) , para. 7.83. 
14  Argentina has failed to explain why the information Commerce collected does not fall within the 
category of "clarifying" information.  In response to the US argument that Argentina failed to explain the 
distinction between "new" information and "clarifying" information, Argentina simply states that, "[f]or Argentina, the distinction is clear in this case ."  Argentina Second Submission, para. 14 (emphasis in the 
original).  Argentina simply asserts that the collected information was not "clarifying."  Argentina Second 
Submission, para. 16.  Again, Argentina fails to explain what that means. 
15 Argentina Second Submission, para. 12.   
16 Argentina Second Submission, para. 10.  WT/DS268/RW 
 Page C-55 
 
 
  anniversary of the imposition of the order.  Further,  while Argentina suggests that its argument about 
"temporal limitations" and its effect on a Member's ab ility to collect new information is restricted to 
the facts of "this case," it is difficult to see how that is so.  In particular, the United States does not see 
why that reasoning would not be equally applicable  to, for example, a Member's measure taken to 
comply in connection with investigations.  Under Article 5.10, investigations are subject to even 
stricter "temporal limitations":  they must be concluded within 18 months.  According to Argentina's 
theory, a Member that has to bring an investiga tion into compliance with WTO obligations would not 
be permitted to collect new information.  24. That theory runs counter to Members' conduc t in past proceedings.  As the United States 
noted in its first submission, the panel in US – Privatization (21.5) concluded that the United States 
was obliged to look at new information to come into compliance.
17  Argentina attempts to distinguish 
that report by contending that, "[f]inding that the authority has an obligation to consider evidence 
provided by the parties is not the same as saying that the authority has the right to develop the 
requisite evidentiary basis at any time . . ."18  Thus, Argentina offers the view that if respondents, of 
their own accord, asked Commerce to consider additional facts, Commerce must do so; but 
Commerce cannot ask producers for that same inform ation.  The United States is unable to see the 
logic in such a proposition, which also has no basis in the text of the DSU.  25. Moreover, the United States is not the only Member to take the view that Members may 
collect new information.  For example, in Mexico – Anti-Dumping Investigation of High-Fructose 
Corn Syrup (HFCS) from the United States  (WT/DS132),  Mexico sought to bring its measure into 
compliance inter alia by soliciting new information rega rding its injury determination.
19  Therefore, 
the United States is not alone in its view that the collection of new information for purposes of 
coming into compliance is permissible.  
26. Further, in its first submission, the United States noted that the arbitrator in the proceeding 
under Article 21.3(c) of the DSU understood that Commerce would be collecting new information 
(e.g., through the questionnaires iden tified in the US submission)
20 as part of its efforts to bring the 
measure into compliance – additional evidence that Ar gentina's position in this dispute is untenable.  
In response, Argentina argues that the arbitrati on report does not reflect the discussion as to whether 
Commerce's collection of new information would be confined to the original period of review.  
Notably, Argentina does not deny that the dialogue in question occurred.  In any event, the United 
States merely made the point about the discussion of the collection of new information during the 
arbitration proceeding to highlight the general understa nding, apparently shared by the arbitrator, that 
Members may collect such information as part of their efforts to come into compliance. 
 
27. Finally, Argentina repeats its assertion that  it had a "right" to termination of the order.21  In its 
first submission, the United States pointed out that  the Appellate Body has rejected this view.22  
Argentina fails to explain how it can continue to  argue that it had a right to termination under 
Article 11.3 when that theo ry has been dismissed. 
 
                                                      
17 US – Privatization (21.5) , paras. 7.252-7.253. 
18 Argentina Second Submission, para. 20. 
19 Mexican Secretariat of Trade and Industrial Development, Revised Final Resolution in the 
Anti- Dumping Investigation of High Fructose Corn Syrup, 20 September 2000, para. 11 (Exhibit US-7). 
20 US Submission under Article 21.3(c), US – OCTG (Argentina) , p. 3. 
21 Argentina Second Submission, para. 25. 
22 US First Submission, para. 85. WT/DS268/RW 
Page C-56  
 
  B. THE FINDING THAT DUMPING WAS LIKELY TO CONTINUE OR RECUR 
 
1. Significant Decreases in Import Volumes 
 28. The United States explained in its first submis sion that Argentina has not demonstrated that 
the volume finding is a measure taken to comply.  As the United States pointed out in its first submission, the Appellate Body has already reasoned that "we do not see why that part of a redetermination that merely incorporates elements of  the original determination . . . would constitute 
an inseparable element of the measure taken to comp ly with the DSB rulings in the original dispute."
23  
Argentina itself noted that the volume finding in the Section 129 determination was simply a 
"restatement of the inference" Commerce drew in 2000.  Therefore, Argentina effectively 
acknowledges that Commerce simply did what the EC did in EC – Bed Linen : incorporate into a 
redetermination a finding from the original determina tion that it did not change, and did not have to 
change, to come into compliance.   
29. In response, Argentina attempts to disti nguish the present situation, arguing that here, 
Commerce "relied" on this finding for the "separ ate and independent purpose of its implementing 
measure."
24  But Argentina fails to explain how Comm erce "relied" on the volume finding any more 
than the EC relied on its "other factors" analysis.  
30. The United States considers it useful to recall the panel's reasoning in EC – Bed Linen (21.5).   
The panel recognized the difference between an  original proceeding and a proceeding under 
Article 21.5.  Under an original proceeding, a Memb er has an opportunity to bring its measure into 
compliance within a reasonable period of time.  U nder an Article 21.5 proceeding, a Member found to 
have acted inconsistently with its WTO obligatio ns does not have a reasonable period of time to 
comply; rather, the complaining party may pro ceed with a request for – and perhaps obtain – 
authorization to suspend concessions or other obligations.
25  The panel further noted that parts of 
panel reports that are not appealed must be considered final.26 
 31. Those discussions are directly relevant to th e situation here.  The original Panel made no 
finding that the United States had acte d inconsistently with its WTO ob ligations in connection with its 
volume analysis.  Argentina did not appeal the orig inal Panel's decision not to make a finding.  It 
would be unfair for the United States, which was unde r 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 considers that analysis deficient.  The United States could then be faced with a request for 
authorization to suspend concessions, with no reasona ble period of time to bring the measure into 
compliance. 
 32. Argentina suggests that the United States was obliged to reconduct its volume analysis under 
the theory that the "jurisprudence at the time" implied that Commerce's volume finding would be WTO-inconsistent.  It bears repeating that the Unite d States is obliged come into compliance with the 
DSB recommendations and rulings in this dispute, not on alleged "jurisprudence" in other disputes.  
The DSB made no such recommendation or ruling in th is dispute.  Further, the Appellate Body has 
explained that rulings in other disputes cannot "in and of themselves" establish WTO-inconsistency in 
a separate dispute.
27  Indeed, Argentina is not even arguing that rulings in other disputes form the 
"jurisprudence" in question; rather, Argentina seeks to  rely on dicta that did not even result in an 
adverse finding. 
                                                      
23 EC – Bed Linen (21.5) (AB), para. 86. 
24 Argentina Second Submission, para. 98. 
25 EC – Bed Linen (21.5) (Panel ), para. 6.45. 
26 EC – Bed Linen (21.5) (Panel), para. 6.51. 
27 US – OCTG (Mexico) (AB) , para. 129.    WT/DS268/RW 
 Page C-57 
 
 
   
33. Argentina also argues that Commerce "ignored " information Siderca placed on the record 
explaining the decline in import volumes.  Commerce did not "ignore" the information.  The information was not germane to the question at hand .  As the Panel may recall, Commerce was faulted 
in the original proceeding for basi ng its conclusion about the Argen tine producers' dumping behaviour 
over the life of the order on the fact that an importe r had paid cash deposits at the rate of the margin 
from the original investigation.  To remedy that flaw, Commerce solicited information as to 
respondents' behaviour.  That included a request for raw data on shipments made during the period of 
review; if a respondent had not shipped during the period of review, then Commerce would take that 
fact into account in evaluating what the respondent's dumping profile had been over the life of the 
order.  That is precisely what Commerce did with respect to Siderca, concluding that the absence of 
shipments, together with the unusable cost data, me ant that no finding would be made with respect to 
Siderca.
28 
 
2. Acindar  
 
34. With respect to the likelihood that Acindar wa s dumping over the life of the order, Argentina 
argues that Commerce can only rely on  actual determinations of dumping,29 rather than a finding that 
dumping had likely occurred over the life of the orde r.  Argentina's argument ignores the fact that 
Article 11.3 provides no methodology for making a sun set determination, and in particular does not 
require a Member to make an actual determination of dumping.  But it also has a more pernicious 
implication:  it would enable respondents to manipulat e the system by first depriving the investigating 
authority of information and then asserting that the lack of information prevents the investigating 
authority from continuing the order.  35. First, the Appellate Body has confirmed th at Members are not obliged to calculate dumping 
margins in sunset reviews.  Indeed, the existe nce of dumping itself is not a prerequisite to 
continuation of an order: Footnote 22 of the AD Agreement expressly provides that even if dumping 
has ceased over the life of the order, the order ne ed not necessarily be terminated.  Thus, if it is 
acceptable to continue an order when dumping h as ceased, there is no reason why it cannot be 
acceptable to continue an order when the existen ce of dumping over the life of the order was likely. 
 
36. Second, the paucity of information on the r ecord as to whether Acindar dumped over the life 
of the order is due entirely to Aci ndar's own choices.  Acindar declined  to participate in the original 
sunset review and, therefore, provided no information on which Commerce could base its 
determination.  Moreover, in the Section 129 proc eeding, Acindar declined to provide any cost 
information from which Commerce could evaluate  whether Acindar had likely dumped over the life 
of the order.
30  Indeed, Article 11.3 makes it clear that even if dumping had not continued, the order 
would not necessarily have to be revoked.  Therefor e, it stands to reason that if there is no evidence 
from which to deduce whether dumping did or did not  occur, the investigating authority may deduce 
whether it was likely that dumping occurred over the life of the order.  If not, then a respondent would have the incentive to withhold evid ence from the record in order to secure termination of the order. 
 
37. Argentina asserts that Commerce's finding that Acindar was likely dumping during the period 
does not meet the requirements of actual dumping unde r Article 2 and should not be part of the basis 
for Commerce's likelihood determination.
31  However, Article 11.3 has no requirement that any 
                                                      
28 Section 129 Determination, p. 9. 
29 Argentina Second Submission, para. 40. 
30 Indeed, it is curious that Acindar did not, like Siderca, attempt to provide any cost information, even 
cost information from a timeframe after the period of re view.  The United States recalls that Acindar had been 
found to have dumped during the period immediately after the review. 
31 Argentina Second Submission, para. 43. WT/DS268/RW 
Page C-58  
 
  finding of past dumping be made.  In fact, Article 11. 3 does not specify any criteria that must form the 
basis for a likelihood determination.  Simply  because the Appellate Body has recognized that 
Article 2 determinations of dum ping during the period are a sufficient basis for likelihood does not 
mean that other types of evidence cannot also be a su fficient basis for a likelihood determination.  In 
fact, the Appellate Body explained that: 
 
the Panel correctly noted that Article 11 .3 does not expressly prescribe any specific 
methodology for investigating authorities to use in making a likelihood determination 
in a sunset review.  Nor does Article 11. 3 identify any particular factors that 
authorities must take into account in making such a determination. Thus, Article 11.3 
neither explicitly requires authorities in a s unset review to calculate fresh dumping 
margins, nor explicitly prohibits them from  relying on dumping margins calculated in 
the past.  This silence in the text of Article 11.3 suggests that no obligation is imposed on investigating authorities to calculate or rely on dumping margins in a sunset review.
32 
Argentina provides no textual or legal support rebutting the US position that, in the absence of 
previous Article 2 determinations of dumping, a Member can rely upon findings that a party was 
likely dumping during the period and thus, would likely dump should the order be revoked.  
 38. Argentina argues that the United States should no t have referred to the fact that Acindar was 
dumping at a 60.73 per cent margin in its first submission to this panel.
33   Argentina is correct that 
this finding did not occur until after the original s unset review was conducted.  In its Section 129 
Determination, Commerce did not rely on this finding that Acindar was dumping because the finding was not published until after the original sunset determination was issued.  Commerce only relied 
upon information available to it at the time of th e original sunset review for its Section 129 
Determination.  The United States cited to this findi ng of Acindar's dumping in its first submission to 
demonstrate that its conclusions of likelihood were, in fact, accurate. 
 39. Argentina asserts that Commerce should have controlled for various factors that would have 
had an impact on the price comparisons between Ac indar's sales and US average prices. Specifically, 
Argentina argues that because the Preston Pipe & Tube Report does not report prices by specific size of pipe, and does not discriminate between plain end casing and casing that is threaded and coupled, 
Commerce did not control for the physical char acteristics of the products being compared.
34  
Argentina also argues that Commer ce should have adjusted for diffe rent delivery terms between the 
Preston Pipe & Tube Report ( i.e. US average unit values) and Acindar's sales data gathered from 
CBP.35  
 
40. Though these factors could have affected the price comparisons, Commerce had to rely on the 
available data to make its comparisons.  The Pr eston Pipe & Tube Report did separate products by 
type of OCTG, whether welded or seamless, and whet her carbon or alloy.  These distinctions are the 
most critical for price comparisons.  Its segregation of carbon welded tubing from carbon welded casing (the products that Acindar sold in the Unite d States) does address much of the size concern 
Argentina raises as tubing is a small tubular product in  limited sizes, and casing is larger size material.  
Additionally, though the report does not distinguish between 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.  There was also insuffici ent data regarding Acinda r's movement expenses 
                                                     
 
32 US – Corrosion Resistant (AB), para. 123. 
33 Argentina Second Submission, paras. 55-60. 
34 Argentina Second Submission, para. 50. 
35 Argentina Second Submission, para. 50.  WT/DS268/RW 
 Page C-59 
 
 
  to allow for adjustments to account for different de livery terms.  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.  41. Argentina then argues that the United States  should have taken into account the fact that 
Acindar: was not investigated during the original  investigation; principally produced steel long 
products; began producing OCTG  in 1998; and was not a significant producer of OCTG.
36  None of 
these "facts" have any bearing on a likelihood determin ation.  The only relevant facts are that Acindar 
exported subject OCTG to the United States during the period and was the only Argentine exporter, 
since the other exporter, Siderca, diverted its sh ipments to other export markets after the order was 
imposed.  The size of Acindar's exports or its production mix is irrele vant.  Commerce properly 
focused its likelihood determination on Acindar's act ual export prices of OCTG to the United States.  
The other arguments listed by Argentina do not invalidate Commerce's finding that Acindar was 
likely dumping subject merchandise during the period a nd would likely continue to dump if the order 
was revoked. 
 
42. Argentina next argues that Commerce "dis torted and misused the information from the 
financial statements in this case."37  This contention is unfounded.  Information from Acindar's 
financial statements demonstrated that its "strateg y has been and will continue to be to focus on the 
Argentine market while using the export market to stabilize its  overall sales volume during periods of 
slowdown in domestic economic activity ."38  In the Section 129 Determination, Commerce explained 
that, in "other words, Acindar planned to con tinue export sales in order to maintain its sales 
volume."39  In light of the information gathered from  Acindar's financial statements that it had 
decreasing sales and operating income, increasing cost s, and overall losses, Commerce concluded that 
Acindar would likely export OCTG to the United Stat es.  Consequently, considering the depressed US 
OCTG market, and the fact that Acindar's selling pr ices "were substantially lower than prevailing US 
market prices," Commerce concluded that it was lik ely that Acindar was dumping during the period 
and would continue to do so if the order was revoked.40 
 43. Argentina argues that the information Commerce relied upon from Acindar's financial 
statements was not relevant to OCTG because OC TG was only a small percentage of Acindar's 
overall sales.
41  But the percentage of Acindar's overa ll sales represented by OCTG was itself not a 
not a relevant fact.  The relevant point was that Acindar stated it would use exports to stabilize its 
overall sales volume, and this was confirmed by th e fact that Acindar had been exporting OCTG 
during the period it was experiencing financial difficulti es.  Furthermore, the fact that its tube and 
structural division, of which OCTG is included, was profitable supports the conclusion that Acindar 
will continue to rely on this division to improve its overall situation.  Acindar's financial statement 
provided affirmative evidence of the likelihood that it would continue to export to the US market. 
 
3. Siderca  
 
44. Argentina continues to argue that Commerce e rred in declining to make any finding regarding 
Siderca.  Specifically, Argentina asserts that "in the event that the authority can find no positive 
                                                      
36 Argentina Second Submission, para. 53. 
37 Argentina Second Submission, para. 54. 
38 Section 129 Determination, at 10-11 ( quoting  Acindar's 2000 financial statement, at 12) (emphasis 
added) (Exhibit ARG-16). 
39 Section 129 Determination, at 11 (Exhibit ARG-16). 
40 Section 129 Determination, at 7-8 (Exhibit ARG-16). 
41 Argentina Second Submission, para. 54. WT/DS268/RW 
Page C-60  
 
  evidence with respect to the dominant and only relevant  producer, the obligation of Article 11.3 is not 
satisfied when the authority simply asserts that it will make 'no finding.'"
42  
 45. Argentina makes this statement yet provides no textual support for this proposition.  In fact, 
Article 11.3 does not require that a likelihood finding be made as to individual producers, a point 
underscored in the Panel Report itself.  More over, as Commerce noted in the Section 129 
determination, Siderca stated in its  questionnaire response that it shipped no subject merchandise to 
the United States.  Therefore, Commerce can hard ly be faulted for not making a dumping finding 
regarding a company that had no exports.  Indeed, at  the time of the sunset review, there was only one 
exporter – Acindar.  Argentina's assertion that Siderca was the "only relevant producer" is simply 
wrong.  The United States correctly relied upon a likelihood finding as to the sole exporter of OCTG 
to the United States during the period of review.   46. Notwithstanding that Commerce made no finding  regarding Siderca, Argentina continues to 
quibble with Commerce's assessment of Siderca's cost information.  As noted before, Siderca did not 
provide Commerce with actual costs for the period.   Instead, Siderca used its costs for October 2005  
and extrapolated what the costs would be for 1995 -2000.  It is curious that Argentina considers 
information five to ten years after the period of re view to be probative, when Commerce preferred to 
use contemporaneous data;
43 but at the same time, Argentina contends information from 2001 is not 
relevant.44 
 
47. It should be noted that Siderca's informa tion was not reliable for several reasons.  For 
example, the base for extrapolation, i.e., the October 2005 data, did not account for the fact that 
Siderca had been significantly lowering its costs of production.45  Moreover, as discussed further 
below, when comparing cost data between ty pes of OCTG products, Co mmerce discovered that 
Siderca "reported lower costs for certain products that do not require such additional materials, 
processing, and testing."46  Because of these problems in the cost data, coupled with the fact that 
Siderca made no sales during the period, Commerce pr operly determined not to use Siderca's cost of 
production data and did not make any findings re garding Siderca's likelihood of dumping during the 
sunset review period.  48. As seen in Commerce's memorandum, for each year Commerce combined costs for carbon 
casings and compared it with alloy casings for those same years and discovered that Siderca reported 
lower costs for the products that required additional materials, processing, and testing.
47  Argentina 
argues that Commerce's analysis of Siderca's cost data was not an "objective assessment" of the data 
and Commerce should have used direct comparisons instead of aggregating and weight averaging it 
into broader carbon and alloy categories.48  Argentina makes these broad assertions, yet fails to 
substantiate them. 
 
                                                      
42 Argentina Second Submission, para. 68. 
43 Indeed, Commerce's use of contemporaneous data is consistent with the arbitrator's view that the 
information pertain to the original review period. 
44 Argentina Second Submission, paras. 55-60.  Arge ntina criticizes the United States for referring to 
the fact that Acindar was found to have a dumping margin of over 60 per cent in 2001.  Argentina recognizes that Commerce did not consider that information in the Section 129 determination.  Argentina Second 
Submission, para. 56. 
45 Argentina First Submission, para. 130. 
46 Section 129 Determination, at 8 (Exhibit ARG-16). 
47 Memo. Re: Inconsistencies in Siderca's Data, at  1 (Exhibit ARG-21); Section 129 Determination, 
at 8.  Siderca had reported the data as carbon casings, plain end; carbon casings, th readed and coupled; alloy 
casings, plain end; and alloy casings, threaded and coupled.  
48 Argentina Second Submission, para. 65; Argentina First Submission, para. 83.  WT/DS268/RW 
 Page C-61 
 
 
  49. Argentina argues that it and the United States could not come to agreement as to releasing 
Siderca's cost data to the Panel.49  That is simply not correct.  The United States explained that 
Siderca and Acindar were free to release their own data, and Argentina did not disagree.50  B y  
contrast, Commerce's ability to release that same in formation is constrained by Article 6.5 of the 
Antidumping Agreement, which requires permission of the party submitting the information before 
such information can be released.  
 50. Argentina also asserts that Commerce "manipul ated the data by weight-averaging the costs of 
finished and plain end pipes, skewing the comparis ons so that they demonstrated the differences 
caused by the type of steel and  the type of end finish."
51  Argentina's assertion is unfounded.  
Commerce grouped those items in that manner becau se the available public information grouped the 
products in that manner.52  Siderca's cost data, if usable, would have been compared with this US 
sales data to see if Siderca could have made sales in the United States above its costs.  
 51. Commerce also explained that "Siderca's cost calculations for non-OCTG products are 
problematic because their costs si gnificantly exceed OCTG costs."
53  Argentina challenges 
Commerce's statement that costs for line pipe, standard pipe, structural tubing, mechanical tubing, and pressure pipe ( i.e. non-OCTG) should not exceed the costs for OC TG because "the majority of tubular 
demand is in the lower value products . . ."
54  This is the common understanding in the industry and 
Argentina never argues it is not accurate – it only argues that there was no explicit evidence 
supporting this claim.  In fact, Siderca is a signifi cant producer of standard seamless pressure and line 
pipe ( i.e. lower value pipe) and was a mandatory resp ondent in a seamless pipe investigation 
involving these products at the same time  it was investigated in the OCTG case.55  Therefore, because 
Siderca has such significant production of these produc ts, this should have meant its non-OCTG costs 
were lower than its OCTG costs, yet the extrapolated costs did not reflect this.  
 
52. Argentina also asserts that "Siderca reported  the actual cost of the production lines used for 
producing the products for which the USDOC requested information."56  Significantly, Siderca does 
not claim that it accurately captured all of the cost s for production.  In fact, it concedes that "Siderca 
cannot provide the information in the form requested  by the Department, [and has] endeavoured to 
reconstruct some data to the best of [its] ability."57  Siderca never argued it was an accurate reflection 
of actual costs – only that the extrapolated data reflect ed its guess as to what the costs might have 
been.  Also, Siderca compared its average per unit costs for a production line for October 2005 to 
each of the intervening years in the period, 1995-20 00, without indicating that it adjusted for product 
mix, which would have significantly affected these average costs.  Nothing in Article 11.3 requires 
Commerce to use such speculative data. 
                                                      
49 Argentina Second Submission, para. 65, n. 67. 
50 It should be noted that Argentina originally ra ised the question of confidential information during 
discussions before the panel organizational meeting.  At that time, Argentina advised the United States that it wished to submit its own companies' confidential information and that procedures might be necessary in order to 
ensure that third parties (not the United States) were adequately bound to protect the confidentiality of that 
information.  Argentina contacted th e United States again about the same  issue and was advised again that 
Siderca and Acindar were free to release their own data, and that Commerce did not have to authorize the 
release of Siderca's and Acindar's data. 
51 Argentina Second Submission, para. 65; Argentina First Submission, para. 82 (emphasis removed). 
52 Memo Re: Information for the Record, at Att. III (Exhibit ARG-18). 
53 Section 129 Determination, at 8 (Exhibit ARG-16). 
54 Section 129 Determination, at 8 (Exhibit ARG-16). 
55 Small Diameter Circular Seamless Carbon and Alloy Steel Standard, Line, and Pressure Pipe From  
Argentina , 60 Fed. Reg. 31,953 (19 June 1995) (final determination of sales at less than fair  value) (Exhibit 
US-8). 
56 Argentina First Submission, para. 94. 
57 Siderca's Questionnaire Resp., Att. 2 (Exhibit ARG-15). WT/DS268/RW 
Page C-62  
 
   
53. Argentina then argues that the United Stat es failed to address the information provided in 
Siderca's financial statement.
58  This argument is erroneous.  The United States relied upon these 
financial statements as an indicator of the depressed OCTG market.59 Specifically, Siderca's financial 
statement explains that its "sales  for fiscal year 2000 were 25 per cent lower than during the previous 
fiscal year, reflecting the effects of the drastic fall in world demand for tubes for the oil industry ."60 
Oil country tubular goods (OCTG) are only used by the oil industry.  If demand for tubular products is 
down in the oil industry, then shipments of OCTG will drop.  The reduction in OCTG demand was so 
great that it caused at least a 25 per cent drop in Siderca's total sales.  In fact, because Siderca produces for other industries as well, the impact on its OCTG sales would likely have been greater 
than 25 per cent for it to cause a 25 per cent reducti on in Siderca's total sales.  Thus, Siderca's own 
financial statements supported the conclusi on that the OCTG market was depressed. 
 54. Argentina argues that Commerce should have  used Siderca's quarterly April-June 2000 
statement as evidence that the downturn in the OCTG market had subsided.
61  However, the data for 
the previous few years reflected a downward tre nd and one quarter of positive results would not 
necessarily indicate a turn in the market.  Furtherm ore, Commerce had requested full-year data for the 
five year period and comparing a three month interim statement would not be an accurate comparison.  In fact, Commerce was using Siderca's fiscal year 2000 statement – the latest completed fiscal year at 
the time of the original sunset review.  Finally, the quarterly statements are not audited and are thus, 
not as reliable as audited full year statements.  Th erefore, Commerce properly did not conclude that 
one quarter's worth of sales outweighed several years of trend data. 
 55. Before reaching its conclusion not to ma ke a likelihood finding as to Siderca, Commerce 
thoroughly analyzed all cost data placed on the re cord and determined it wa s not reliable.  Because 
Siderca had stopped exporting to the United States once the order was imposed, there was no sales 
data to use in the analysis.  Without reliable co st or sales data on the record, Commerce's neutral 
decision as to Siderca is not inconsistent with Article 11.3.  
C. EVIDENTIARY AND PROCEDURAL REQUIREMENTS OF ARTICLE 11.3 AND ARTICLE 6 
 
56. A previous panel has explained that Article  6 of the AD Agreemen t imposes substantive 
obligations without dictating any specific actions th rough which those obligations must be met.  In 
Guatemala – Cement II , the panel recognized in the context of a discussion on Article 6.1 that: 
 
these provisions impose substantive obligati ons, without requiring those obligations 
to be met through any particular form [e xcept as explicitly provided for].  What 
counts is whether, in practice, sufficient opportunity was provided . . .62 
Though that dispute specifically discussed Article 6.1 obligations, this same framework of analysis is 
applicable to the remainder of the substantive oblig ations of Article 6.  Argentina improperly asserts 
Commerce was required to take specific actions, rather than addressing whether Commerce through its actions met the substantive obligations at issue. 
 
                                                     
 
58 Argentina Second Submission, para. 66. 
59 Section 129 Determination, at 9-10 (Exhibit ARG-16). 
60 Section 129 Determination, at 9 (emphasis added) (Exhibit ARG-16). 
61 Argentina Second Submission, para. 66. 
62 Guatemala – Cement II (Panel), para. 8.119.  WT/DS268/RW 
 Page C-63 
 
 
  1. Article 6.1 
 
57. Argentina argues that the United States did not  act consistently with Article 6.1 of the 
AD Agreement because it did not "respond" to a letter  that Siderca submitted only a week before the 
final determination was issued.63  First, there is no obligation under Article 6.1 for a Member to 
respond to a letter.  Article 6.1 requires Members to  provide parties with the opportunity to provide 
evidence and argument.  Second, Argentina's asserti on is simply false.  Commerce responded to the 
comments made in that letter in  its Section 129 Determination.64  Finally, Argentina was aware that 
the reasonable period of time expired on 17 December 2005.  Therefore, the statement that the parties 
only discovered on 16 December that there would be  no additional procedures simply rings hollow, 
inasmuch as the parties were aware that the reasonable period of time was imminently expiring.65 
 58. Argentina returns to its claim that the Sec tion 129 Determination was not consistent with 
Article 6.1 because Commerce did not issue suppl emental questionnaires, publish a preliminary 
determination, hold a hearing, or issue a schedule for comments.
66  Yet, as the United States explained 
in its first submission, none of these are required by Article 6.1.  The United States met the 
substantive obligations of Article 6.1, giving the Argentine respondents several opportunities to 
submit evidence and legal argument.  Argentina c ontends that the absence of these procedures strips 
Article 6.1 of any substantive meaning.  That is incorrect.  Argentina fails to recognize that there 
comes a point in every proceeding where an investig ating authority must make its decision and cannot 
offer unlimited opportunities for pa rties to submit comments and re buttals.  In this proceeding, 
Commerce received argumentation from the respondent s until two days before the determination was 
made, and three days before the reasonable period of time expired.  There are no specific actions 
required to satisfy the Article 6.1 requirements.  Rather, Members have a variety of options for 
meeting the substantive obligations of Article 6.1.  Thus, Commerce provided the substantive rights 
that are required by Article 6.1. 
 
2. Article 6.2 
 
59. Rather than addressing the text of Article 6. 2 of the AD Agreement, which plainly requires a 
hearing only on request, Argentina contends that  the United States should have provided "more 
information regarding the timing of the hearing."67  Any of the interested parties could have submitted 
requests for a hearing and chose not to do so.  Co mmerce did not breach Article  6.2 by failing to hold 
a hearing that was never requested, nor does Article  6.2 require the provision of "more information" 
regarding the timing of a hearing that was never requested.  60. Ignoring the text of Article 6.2, Argentin a argues that the United States suggested in its 
arbitration submission that it would hold a hearing.
68  Argentina seems to be suggesting that its claim 
is not that the United States breached Article 6.2, but  that it breached the US arbitration submission.  
Of course nothing in the DSU provides for such an argument.  Moreover, the United States did not state that it would hold a hearing but rather included a hearing in its projected timeline, in case a party 
requested a hearing.  
61. Argentina also argues that the United States breached Article 6.2 because Commerce 
"remain[ed] silent after Siderca asked for essential clarification with respect to the erroneous 
                                                     
 
63 Argentina Second Submission, para. 105. 
64 Section 129 Determination, at 3, 4-6 (Exhibit ARG-16). 
65 Siderca's counsel in the under lying proceeding acts as Argentin a's counsel in this dispute. 
66 Argentina Second Submission, para. 106. 
67 Argentina Second Submission, para. 109. 
68 Argentina Second Submission, para. 109. WT/DS268/RW 
Page C-64  
 
  allegations of the Petitioners and w ith respect to the procedures . . ."
69  Argentina neither cites to the 
submission it is referencing, nor provides an expl anation as to how this prevented the Argentine 
respondents from defending their interests.  Commer ce allowed all parties to submit comments and 
rebuttal comments and then responded to all of the in terested parties' comments in its Section 129 
Determination.  Therefore, the United States met its obligations with respect to Article 6.2. 
 
3. Procedural Requirements in Articles 6.4, 6.5.1, 6.6, and 6.9 
 
(a) Article 6.4  
62. Argentina continues to pursue its claim under Ar ticle 6.4 of the AD Agreement.  In doing so, 
Argentina misrepresents the US argument about the relevance of the arbitration proceeding.   The 
United States did not argue that there is a "hierarchy"  between the arbitration report and Article 6.4.  
Rather, the United States noted that the obligations  under Article 6.4 are, as specified in the text, 
applicable only whenever release of such informatio n is practicable.  The reas onable period of time is 
directly relevant to whether release of the informati on in question is practicable .  A brief review of the 
proceeding will illustrate that Commerce did, whenever  practicable, release all information subject to 
Article 6.4.  63. As the Panel may recall, Commerce was obliged  to amend the waiver regulations because the 
"deemed waiver" exercised in the original sunset review had "tainted" the final determination.  
Commerce could not begin its Section 129 Determina tion until those regulations became effective.  
The regulations became effective 31 October 2005,  and Commerce sent out questionnaires that same 
day.  The timeline was as follows: 
• 22 November 2005: Commerce places CBP a nd Preston Price data on the record 
• 30 November 2005:  Respondent inter ested parties provide questionnaire 
responses  US Steel provides response 
• 8 December 2005: Domestic interested parties provide rebuttal submissions 
• 14 December 2005: Respondent interested  parties provide rebuttal submissions 
• 16 December 2005: Commerce issues Section 129 determination 
64. It is evident from the timeline that this pr oceeding had considerably greater time constraints 
than an original sunset review.  Nevertheless, Co mmerce disclosed all information, and did so as soon 
as practicable.  In particular, the United States notes that the memoranda placed in the file on 
16 December 2005, were so placed only two days af ter respondents filed their rebuttal submissions.  
Argentina has not proven that it was practicable  for Commerce to place those memoranda on the 
record any earlier. 
 
65. Moreover, Argentina can only discharge its burden of proof by identifying each memorandum 
at issue and explaining why each memorandum met th e criteria of Article 6.4, including what the 
information in question is, why it is relevant to th e presentation of the respondent interested party's 
case, that it is not confidential, and that it was used  by the authorities in the proceeding.  Argentina 
appears to place the burden on the Panel – or the Un ited States – to examine the memoranda in this 
fashion.  Argentina simply states that some of the memoranda are public and, therefore, meet the 
criteria of Article 6.4.  It is evident that Argen tina wishes the Panel to consider these documents in 
lump form, and a closer examination of the docume nts reveals why:  the information in question was 
either provided to the parties as early as 22 Novemb er 2005, was confidential, was not relevant to the 
                                                     
 
69 Argentina Second Submission, para. 111.  WT/DS268/RW 
 Page C-65 
 
 
  presentation of the respondent interested party's case, or was not used by the authorities in the 
proceeding.  
Non-Confidential Versions of Confidential Memoranda 
 66. At the outset, it should be noted that Article 6.4 only applies to non-confidential information.  
Therefore, the memoranda containing confidenti al information are not subject to Argentina's 
Article 6.4 claim.  As a result, Article 6.4 is not applicable to the confidential information in Exhibit 
ARG-18 (the price and CBP data), Exhibit ARG- 21 (containing confidential Siderca information), 
and Exhibit ARG-23 (containing confidential Acinda r information).  Argentina argues that the non-
confidential versions of these memoranda are subject to Article 6.4.  There are several problems with 
this argument.   67. First, Argentina has failed to explain wh y Commerce's placement of the CBP and Preston 
Price data in the file on 22 November 2005, was inconsistent with Article 6.4. 
 
68. Second, the United States recalls that the st ated purpose of Article 6.4 is to enable those 
parties to "see all information that is relevant to the presentation of their cases . . . and to prepare 
presentations" on the basis of that information – the stated purpose of Article 6.4.
70  Argentina has 
failed to explain how placing the non-confidential versions of memoranda on the record would permit 
respondent interested parties to prepare presentations when respondents had access to the confidential  
versions. 
 
Public Documents 
 
69. The three remaining memoranda were, in fact , public documents, rather than non-confidential 
versions of confidential documents.  However, even with respect to these documents, Argentina's 
claim fails.  
• Exhibit ARG-22 (16 December 2005, USDOC Memorandum to file from Mark 
Flessner regarding "Information from Prest on Price Publishing.") This memorandum 
contains pages providing descriptive inform ation about Preston Price Publishing – the 
source of data placed on the record on 22 Nove mber 2005.  (That information is also 
available on the web.)  Article 6.4 only concer ns information that is relevant to the 
presentation of a party's case.  While the data are relevant, and were placed on the 
record on 22 November 2005, the descr iptive information about the company 
providing the data is not. Therefore, pl acing this memorandum in the file on 
16 December 2005, is not incons istent with Article 6.4.   
 
• Exhibit ARG-24 (16 December 2005, USDOC Memorandum to file from Mark 
Flessner regarding "Securities and Exchange  Commission Filings of Domestic OCTG 
Producers.") These are simply the financial statements of domestic OCTG producers.  These statements were cited in the determination
71 to support assertions made by the 
respondents, including Siderca's assertion that the OCTG market was depressed,72 as 
well as its assertion that the United States is  the world's largest market for OCTG.73  
                                                      
70 Argentina is not arguing that the non-confidentia l versions were created or filed later than the 
confidential versions.  Both the confidential and non- confidential memoranda have the same date and were 
placed in the file on the same date.  As a result, Ar gentina is essentially advancing a claim regarding the 
confidential memoranda, when Artic le 6.4 expressly limits itself to non-confidential information. 
71 See Section 129 Determination, pp. 7, 11;  
72 Siderca's 7 December 2005 submission, p. 7 (Exhibit ARG-19). 
73 US – OCTG (Argentina) (Panel) , paras. 7.291 and 7.297. WT/DS268/RW 
Page C-66  
 
  Argentina has failed to explain why these docum ents were "relevant" to respondents' 
ability to "present their cases," inas much as the documents actually confirmed 
assertions respondents themselves made.   
 
• Exhibit ARG-25 (16 December 2005 USDOC Memorandum to file from Fred Baker 
regarding "Information for the Record.").  This information cons ists of respondent 
and domestic interested parties'  submissions in the original sunset review.  Argentina 
has had access to the public file containi ng the same information since the original 
sunset review. 
 (b) Article 6.5.1 
 
70. Argentina continues to assert that Commerce  failed to require non-confidential summaries of 
confidential information.  This is not correct.  Commerce required interested parties to provide non-
confidential versions of their confidential documen ts; as the United States explained in its first 
submission, the non-confidential versions themsel ves contained summaries of the confidential 
information that was bracketed.
74  
 71. Rather than addressing this point, Argen tina engages in an imprecise discussion of the 
timeliness of the receipt of unspecified confidential documents issued concurrently with the Section 
129 determination.  The United States recalls that Ar gentina's claim in connection with Article 6.5.1 
of the AD Agreement was with respect to US Steel's submission
75 – the public version of which  was 
filed on 2 December 2005, not concurrently with  the Section 129 determination.  Therefore, 
Argentina's discussion is irrelevant to its Article 6.5.1 claim.  72. Finally, Argentina contends that it is not clear that Acindar was represented by its own 
counsel.
76  Attached is a copy of the service list indica ting that Acindar, in fact, was represented by 
counsel.77 78 
 (c) Article 6.6  73. Article 6.6 of the AD Agreement requires administering authorities to satisfy themselves as to the accuracy of the information upon which they rely  in making their findings.  As the United States 
pointed out in its first submission, th e cost data submitted by Siderca were per se  not accurate because 
they were self-described estimates, using 2005 data to estimate costs for the period 1995 to 2000, five 
to ten years earlier.  Argentina fails to address this argument.  Moreover, Commerce explained carefully why the data were not reliable.  Co mmerce explained how Siderca's estimated production 
cost data was inconsistent with other cost data for steel products in the Section 129 Determination.
79  
 
74. Further, the United States noted that the co st information was not information "upon which 
. . . findings are based," and Article 6.6 is therefor e not applicable.  Argentina has failed to explain 
                                                      
74 US First Submission, para. 71. 
75 Argentina First Submission, para. 169. 
76 Argentina Second Submission, para. 124. 
77 US Department of Commerce Public Service List , Section 129 Determination, Oil Country Tubular 
Goods from Argentina (Exhibit US-9). 
78 Argentina also asserts that "it is unreasonable, unfair, and a violation of Article 6.5 for the USDOC 
to ignore a specific request by an interested party to be advised of the allegations made against it."  Argentina 
Second Submission, para. 124.  Article 6.5 requires invest igating authorities to treat confidential information as 
confidential and prohibits disclosure of such information without the permission of the party submitting it.  It 
does not require USDOC to inform an interested party of the allegations made against it. 
79 Section 129 Determination, at 8-9 (Exhibit ARG-16).  See also , Memo Re: Inconsistencies in 
Siderca's Cost Data (Exhibit ARG-21).  WT/DS268/RW 
 Page C-67 
 
 
  why the lack of a decision constitutes a finding.  Arge ntina states that the US view that it has not acted 
inconsistently with Article 6.6 is premised on the assumption that the data were flawed.  That is 
incorrect; the US view is premised on the plain language of Article 6.6,  which is limited to 
information upon which findings are based.  
(d) Article 6.9 
 75. Article 6.9 requires authorities, before a final determination is made, to inform all interested 
parties of the essential facts under consideration that form the basis for the decision to apply definitive 
measures.  As the United States noted, Argentina, as the complaining party, bears the burden of 
proving its claim, including proving that the info rmation in question consists of "essential facts." 
 76. First, it should be noted that Argentina's re buttal is limited to the two memoranda in which 
Commerce describes the inconsistencies in the Argentine companies' data.
80  Therefore, the United 
States understands Argentina's claim to  be limited to those memoranda. 
 
77. Second, Argentina still fails to explain why those memoranda contain "essential facts", or how 
those essential facts formed the basis for the decision to apply defin itive measures.  Argentina simply 
offers the statement that the "memoranda were clear ly part of the 'essential facts under consideration,' 
and were treated as such by the Section 129 Determination."81  Therefore, Argentina still has not met 
its burden of proof with regard to these memoranda. 
 
78. Moreover, Argentina cannot meet its burden of  proof.  The essential facts that formed the 
basis of the decision to continue the order were provi ded weeks in advance of the final determination.  
On 22 November 2005, Commerce pla ced the CBP data (Acindar's sales) and the Preston Publishing 
data (US average unit values) on the record.82  Those data formed part of the basis for the decision to 
continue the order and were the "essential facts."  Commerce's identification of inconsistencies in the 
Argentine respondents' data are not "facts;" rather , they constitute reasoning by the investigating 
authority.  Further, they are not the basis for the continuation of the order because the data were not 
used in making the final decision. 
 79. In this regard, the United Stat es recalls the panel's analysis in Argentina – Poultry , where 
Argentina successfully defended an Article 6.9 claim under analogous circumstances.  Argentina's 
investigating authority had disregarded certain no rmal value and export price data reported by 
Brazilian exporters.  Brazil alleged that Argentina fa iled to disclose its rejection of data, in violation 
of Article 6.9.   
80. The panel rejected Brazil's claim for two reas ons.  First, the panel rightly concluded that the 
reasons  why data are rejected are not facts.
83 
 
In our view . . . the failure to inform an interested party of a reason  does not equate to 
failure to inform an interested party of an essential fact .84  
 
                                                      
80 Argentina Second Submission, para. 143 ("In the present case, the Argentina respondents could not 
defend their interests by addressing what the USDOC perceived to be 'inconsistencies in data.'") 
81 Argentina Second Submission, para. 142. 
82 Memo Re: Information for the Record (Exhibit ARG-18). 
83 Argentina – Poultry , para. 7.225. 
84 Argentina – Poultry, para. 7.225. WT/DS268/RW 
Page C-68  
 
  Commerce's identification of inconsistencies in the Argentine respondents' data was a reason  why the 
data were rejected and was not, itself, a fact.  Therefore, the United States did not breach Article 6.9 with respect to those memoranda.  81. The Argentina – Poultry panel also explained that Argentina' s rejection of certain data did not 
form the basis for the decision whether to apply definitive measures, and therefore, for a second 
reason, did not fall within the ambit of Article 6.9.
85 More specifically, the panel noted: 
 
In our view, however, the fact that certai n normal value or export price data is not 
going to be relied on in making a final dete rmination is not a fact which forms the 
basis for the decision whether to apply definitive measures .  While we accept that the 
normal value and export pri ce data ultimately used in the final determination are 
essential facts which form the basis for th e decision whether to apply definitive 
measures, the fact that certain normal value and export price data is not going to be 
used is not.86 
82. Thus, data not used cannot form the basis for the decision whether to apply definitive 
measures.   83. Rather than referring to Argentina – Poultry , which addresses a situation squarely analogous 
to the one in this dispute, Argentina relies on Argentina – Tiles  for the proposition that the United 
States has acted inconsistently with Article 6.9.
87  Argentina – Tiles  involved a different scenario from 
the one here.  In that disput e, Argentina defended the Article 6.9 claim by asserting that the 
respondent interested parties had the opportunity to  view the public file, which contained all of the 
essential facts.  Those facts were simply questionna ire responses and other information provided by 
the interested parties.88  By contrast, Commerce did not merely in vite the interested parties to review 
the public file.  Instead, Commerce – not the domestic interested parties – placed the Preston price and 
CBP data on the record and provided the Argen tine respondents with both public and confidential 
versions of that inform ation.  Commerce did so on 22 November  2005, three weeks before the Section 
129 determination was issued.  Therefore, the Arge ntine respondents had the opportunity to address 
whether Commerce should have used the information.  Argentina – Tiles,  therefore, is inapposite to 
Argentina's Article 6.9 claim in this dispute.  
84. Indeed, the panel in Argentina – Poultry  expressly addressed Argentina – Tiles , stating that 
"our conclusion is entirely compatible with the finding of the Argentina – Ceramic Tiles  panel.  In our 
view, that panel concluded that factual information
 – rather than reasoning – represents the 'essential 
facts' . . . ."89  As noted above, Commerce disclosed the essential facts on 22 November 2005.  
 
85. Finally, the gravamen of Argentina's claim a ppears to be the lack of opportunity to explain 
why the responses should not be rejected and to suggest  alternative sources for facts available, rather 
than a failure to disclose essential facts formi ng the basis for the continuation of the order.90  As the 
Argentina – Poultry  panel noted, "we agree . . . that an investigating authority must inform interested 
parties why certain information is disregarded.  Howe ver . . . that obligation is found in Article 6.8 . . 
and not in Article 6.9."91  The United States addresses that claim next. 
 
                                                      
85 Argentina – Poultry, para. 7.223. 
86 Argentina – Poultry, para. 7.224. 
87 Argentina Second Submission, para. 142. 
88 Argentina – Tiles , para. 4.966. 
89 Argentina – Poultry , para. 7.228. 
90 Argentina Second Submission, para. 144. 
91 Argentina – Poultry , para. 7.227.  WT/DS268/RW 
 Page C-69 
 
 
  4. Article 6.8 and Annex II 
 
86. Argentina persists in its assertion that Co mmerce applied "facts available" to Siderca and 
Acindar in violation of Article 6. 8 and Annex II of the Agreement. 
 
87. With regard to Siderca, Argentina asks the Panel to "reject the US assertion that the USDOC 
did not resort to facts available with respect to Siderca because 'the result of Commerce's analysis 
of Siderca's estimated cost information was no company-specific finding regarding Siderca.'"92 
Argentina goes on to state that the "US assertion is premised on the erroneous assumption that these obligations apply only to information th at supports the conclusions of the investigating 
authority . . . ."
93  Argentina is mistaken.  The US assertion is much simpler than that. 
 88. Article 6.8 states the circumstances under whic h a Member may make a determination "on the 
basis of facts available."  The United States did not use other facts in lieu of the data provided by 
Siderca; the United States simply made no finding with respect to Siderca.  Thus, Commerce did not 
use the "facts available" but rather declined to make any finding with respect to Siderca and used no 
facts in that respect.  The United States was not required to make a company-specific finding in the 
course of making its determination.  In other word s, the question is quite simple: With respect to 
Siderca, which "facts available" did Commerce use?  89. Argentina appears to be referring to "facts av ailable" not as the term is actually used in 
Article 6.8, but rather interchangeably with the decision by an investiga ting authority to reject 
information that has been provided.  The plain langu age of Article 6.8 indicates that its applicability is 
triggered not by the rejection of the information, but by the use of facts available.  Article 6.8 sets out 
conditions precedent to the use of facts available – "cases in which any inter ested party refuses access 
to, or otherwise does not provide, necessary inform ation within a reasonable period of time or 
significantly impedes the investigation . . . ."  If f acts available have not been used, then there is no 
need to examine the conditions preceden t to the use of facts available.  That is the situation here: facts 
available were not used with respect to Siderca, a nd as a result, the obligations further to Article 6.8 
have not been triggered.  90. Argentina does not appear to deny that Si derca and Acindar did not provide the requested 
information.  Rather, Argentina provides excuses as to why that information was not provided.  Thus, 
"USDOC asked both Acindar and Siderca for informa tion they did not have."  "Siderca . . . did not 
retain product-specific costs from the period requested ."  "Acindar . . . no longer produces OCTG, . . . 
it did not have the product-specific cost information in  the form requested by the Department, and . . . 
it was not required to have retained such information under Argentine law."
94 
 
91. Argentina seems to believe that Article 6. 8 requires authorities to establish that respondents 
are "recalcitrant."  However, Article 6.8 provides th at an authority may use facts available not only 
when an interested party "refuses ac cess to" information, but also when  an interested party "otherwise 
does not provide" necessary information.95  Argentina's interpretation would read the latter phrase out 
of Article 6.8.  Argentina appears to assume that Ar ticle 6.8 is punitive.  Article 6.8 is not punitive: it 
simply establishes that where inte rested parties do not provide necess ary information, investigating 
authorities may use other information.  
                                                     
 
92 Argentina Second Submission, para. 137. 
93 Argentina Second Submission, para. 137. 
94 Argentina Second Submission, para. 138. 
95 For purposes of this discussion, the United States is assuming arguendo  that the information in 
question is "necessary information" for purposes of Article 6.8. WT/DS268/RW 
Page C-70  
 
  92. Argentina argues that the United States has fa iled to address its specific allegations regarding 
Annex II.  Argentina ignores the fact that the Unite d States pointed out that no facts available were 
used with respect to Siderca.  Annex II is only applic able when Article 6.8 is applicable.  The majority 
of Argentina's arguments regarding Annex II concern Siderca and are simply inapplicable.
96 
 
93. With respect to Acindar, Argentina asserts that there is: 
 
no indication whatsoever that the USDOC acte d with 'special circumspection' within 
the meaning of paragraph 7.  There is nothing in the Section 129 Determination 
demonstrating that the USDOC 'check[ed]  the information from other independent 
sources at [its] disposal.'  DOC never even asked Acindar to explain the general 
reference in its 2000 financial statement.97 
As the United States noted, Acindar did not provide any cost information.  Commerce therefore used 
alternate information from secondary sources.  Ar gentina cannot credibly assert that Commerce failed 
to exercise "special circumspection" when Acinda r gave Commerce no choice but to use information 
from independent sources. 
 94. It is more puzzling that Argentina asserts that Commerce failed to check information from 
other independent sources at its disposal.  Paragra ph 7 of Annex II provides examples of independent 
sources, and they are the same sources that Co mmerce used: "published price lists" and "official 
import statistics." 
 
95. Finally, Argentina seems to read paragraph 6 of Annex II as requiring a Member to inform all 
respondents when information provided by only one of them is not accepted.
98  However, paragraph 6 
provides that if "evidence or information is not accepted, the supplying party should be informed 
forthwith . . . ."  Therefore, there was no obligatio n to inform Acindar that Siderca's information was 
being rejected.  As the United States noted in  its first submission, Commerce made no finding 
regarding Siderca and did not use facts available re garding Siderca; therefore, the obligations under 
Annex II are simply not applicable with respect to Siderca.  
IV. ARGENTINA'S REQUEST FOR A SUGGESTION 
 96. Argentina persists in asserting that it has a "right" to termination.
99  Argentina also persists in 
its assertion that the Panel should make a "s uggestion" that the order be terminated.100  Argentina has 
failed to explain just how a "suggestion" from the Panel would fulfil Argentin a's alleged "right" to 
termination, or how it would prevent a "never-ending cycle" of litigation.101 
 
97. Argentina believes its right to termination flow s from the temporal limitations of Article 11.3.  
If that were true, then it is unclear why a suggestion would be necessary, inasmuch as there would purportedly be an inconsistency per se with Article 11.3.  That is precisely the interpretation the 
Appellate Body rejected in US – OCTG (Mexico).  Mexico argued that the panel, and the Appellate 
Body, should make a finding that the United States ha d "no legal basis to continue its . . . measure 
beyond . . . five years . . . ."
102  The Appellate Body refused to make such a finding, or to overturn the 
panel's refusal to make such a finding. 
                                                      
96 Argentina First Submission, para. 184.  
97 Argentina First Submission, para. 184. 
98 Argentina First Submission, para. 184. 
99 Argentina Second Submission, para. 174. 
100 Argentina Second Submission, para. 176. 
101 Argentina Second Submission, para. 183. 
102 US – OCTG (Mexico) (AB) , para. 183.  WT/DS268/RW 
 Page C-71 
 
 
   
98. Argentina distorts the Appellate Body's anal ysis, concluding that the Appellate Body simply 
meant that the order did not have to be terminated "immediately ," as if to imply that the order in fact 
had to be terminated, but at some later date.103  That is simply not correct. The Appellate Body 
rejected Mexico's interpretati on not only because the DSU provides Members a reasonable period of 
time to implement, but because it also accords to Members "the means of implementation."104  The 
means of implementation in this dispute include the decision to terminate – or to correct the flaws in 
the determination, which is what the United States did. 105 
 
V. CONCLUSION 
 
For the foregoing reasons, the United States respectfu lly requests that the Panel reject Argentina's 
claims.   
                                                     
 
103 Argentina Second Submission, para. 180 (emphasis in original). 
104 US – OCTG (Mexico) (AB), para. 187. 
105 Argentina references a number of disputes in which suggestions have been made.  Not one of those 
concerns an Article 21.5 proceeding.