WORLD TRADE  
ORGANIZATION  WT/DS268/RW 
30 November 2006 
 (06-5693) 
 Original:   English 
  
 
     
 
  
UNITED STATES - SUNSET REVIEWS OF ANTI-DUMPING 
MEASURES ON OIL COUNTRY TUBULAR GOODS  
FROM ARGENTINA 
 
 
Recourse to Article 21.5 of the DSU by ARGENTINA  
 
 
 
Report of the Panel 
 
 
  
 
    
 
  WT/DS268/RW 
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TABLE OF CONTENTS 
Page  
 
I. INTRODUCTION ................................................................................................................... .1 
II. FACTUAL ASPECTS ..............................................................................................................1  
III. PARTIES' REQUESTS FOR FIND INGS AND RECOMMENDATIONS.........................3  
IV. ARGUMENTS OF THE PARTIES ........................................................................................4  
V. ARGUMENTS OF THE THIRD PARTIES ..........................................................................5  
VI. INTERIM REVIEW................................................................................................................. 5 
A. REQUEST OF ARGENTINA .............................................................................................................5  
B. REQUEST OF THE UNITED STATES ................................................................................................6  
VII. FINDINGS....................................................................................................................... ..........8  
A. GENERAL ISSUES .........................................................................................................................8  
1. Standard of Review............................................................................................................. ......8  
2. Burden of Proof................................................................................................................ .........8  
B. IMPLEMENTATION OF DSB RECOMMEND ATIONS AND RULINGS REGARDING THE 
INCONSISTENCY OF US WAIVER PROVISIONS WITH ARTICLE 11.3  OF THE AGREEMENT ..............9  
1. Arguments of Parties ........................................................................................................... .....9 
(a) Argentina ...................................................................................................................... ..............9  
(b) United States .................................................................................................................. .............9  
2. Arguments of Third Parties ...................................................................................................10  
(a) Japan .......................................................................................................................... ...............10  
(b) Korea.......................................................................................................................... ...............10  
3. Evaluation by the Panel........................................................................................................ ..10 
(a) Introduction................................................................................................................... ............10  
(b) Relevant Provisions of the US  Statute and Regulations ...........................................................10  
(c) Findings of the Original Panel and Appellate Body .................................................................11  
(d) Steps Taken by the United States to Implement the DSB Recommendations and 
Rulings........................................................................................................................ ..............12  
(e) Scope of Current Waiver Provisions.........................................................................................13  
(f) Examination of Consistency of the Waiv er Provisions with Article 11.3 of the 
Agreement...................................................................................................................... ...........16  
(g) Conclusion ..................................................................................................................... ...........20  
C. FACTUAL BASIS OF THE USDOC 'S SECTION 129 DETERMINATION ..............................................20  
1. Arguments of Parties ........................................................................................................... ...20 
(a) Argentina ...................................................................................................................... ............20  
(b) United States .................................................................................................................. ...........20  
2. Arguments of Third Parties ...................................................................................................20  WT/DS268/RW  
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(a)
 China.......................................................................................................................... ...............20  
(b) Mexico ......................................................................................................................... .............21  
3. Evaluation by the Panel........................................................................................................ ..21 
D. USDOC 'S DETERMINATION REGARDING THE LI KELIHOOD OF CONTINUATION OR 
RECURRENCE OF DUMPING ........................................................................................................24  
1. Introduction................................................................................................................... ..........24  
2. USDOC's Analysis of Likely Past Dumping.........................................................................25  
(a) Arguments of Parties........................................................................................................... ......25  
(i) Argentina ...................................................................................................................... ............25  
(ii) United States.................................................................................................................. ...........25  
(b) Arguments of Third Parties..................................................................................................... ..26 
(i) China.......................................................................................................................... ...............26  
(ii) European Communities........................................................................................................... ..26 
(iii) Japan.......................................................................................................................... ...............26  
(c) Evaluation by the Panel ........................................................................................................ ....26  
3. USDOC's Volume Analysis ....................................................................................................29  
(a) Arguments of Parties........................................................................................................... ......29  
(i) Argentina ...................................................................................................................... ............29  
(ii) United States.................................................................................................................. ...........29  
(b) Arguments of Third Parties..................................................................................................... ..30 
(i) China.......................................................................................................................... ...............30  
(ii) Japan.......................................................................................................................... ...............30  
(iii) European Communities........................................................................................................... ..30 
(iv) Mexico......................................................................................................................... ..............30  
(c) Evaluation by the Panel ........................................................................................................ ....30  
(i) Introduction ................................................................................................................... ...........30  
(ii) Is the USDOC's Volume Analysis Part of th e Measure Taken to Comply With the DSB 
Recommendations and Rulings?...............................................................................................31  
(iii) Was the USDOC's Volume Analysis Consistent  With Article 11.3 of the Agreement?.............34  
4. Conclusion ..................................................................................................................... ..........36  
E. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE AGREEMENT .......................................................36  
1. Arguments of Parties ........................................................................................................... ...36 
(a) Argentina ...................................................................................................................... ............36  
(b) United States .................................................................................................................. ...........37  
2. Arguments of Third Parties ...................................................................................................37  
(a) Japan .......................................................................................................................... ...............37  
(b) Korea.......................................................................................................................... ...............37   WT/DS268/RW 
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3. Evaluation by the Panel........................................................................................................ ..38 
(a) Alleged Violations of Articles 6.1 and 6.2................................................................................38  
(b) Alleged Violation of Article 6.4 ............................................................................................... 40 
(c) Alleged Violation of Article 6.5.1 ............................................................................................4 3 
(d) Alleged Violation of Article 6.6 ............................................................................................... 46 
(e) Alleged Violation of Article 6.8 ............................................................................................... 46 
(f) Alleged Violation of Article 6.9 ............................................................................................... 47 
F. ALLEGED VIOLATION OF ARTICLE 13 OF THE AGREEMENT .......................................................48  
VIII.  CONCLUSIONS AND RECOMMENDATION ..................................................................48  
IX. REMEDY......................................................................................................................... ........49  
A. ARGUMENTS OF PARTIES ..........................................................................................................49  
1. Argentina ...................................................................................................................... ...........49  
2. United States.................................................................................................................. ..........49  
B. ARGUMENTS OF THIRD PARTIES ...............................................................................................49  
1. Mexico......................................................................................................................... .............49  
C. EVALUATION BY THE PANEL .....................................................................................................49  
 
  WT/DS268/RW  
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LIST OF ANNEXES 
 
ANNEX A 
 
FIRST WRITTEN SUBMISSIONS OF PARTIES 
 
Contents Page 
Annex A-1 First Written Submission of Argentina A-2 
Annex A-2 First Written Submission of the United States  A-58 
 
 
ANNEX B 
 
WRITTEN SUBMISSIONS OF THIRD PARTIES 
 
Contents Page 
Annex B-1 Third Party Written Submission of China, P.R. B-2 
Annex B-2 Third Party Written Submissi on of the European Communities B-10 
Annex B-3 Third Party Written Submission of Japan B-16 
Annex B-4  Third Party Written Submission of Korea  B-23 
Annex B-5 Third Party Written Submission of Mexico B-30 
 
 
ANNEX C 
 
SECOND WRITTEN SUBMISSIONS 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 
 
 
ANNEX D 
 
ORAL STATEMENTS, SUBSTANTIVE MEETING OF THE PANEL 
WITH PARTIES AND THIRD PARTIES 
 
Contents Page 
Annex D-1 Opening and Closing Oral Statements of Argentina  D-2 
Annex D-2 Opening and Closing Oral Statements of the United States  D-23 
Annex D-3 Third Party Oral Statement of China, P.R. D-29 
Annex D-4 Third Party Oral Statement of the European Communities D-30 
Annex D-5 Third Party Oral Statement of Japan D-36 
Annex D-6 Third Party Oral Statement of Mexico D-41 
  WT/DS268/RW 
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ANNEX E 
 
QUESTIONS AND ANSWERS 
 
Contents Page 
Annex E-1 Answers of Argentina to Questions of the Panel E-2 
Annex E-2 Answers of the United States to Questions of the Panel  E-55 
Annex E-3 Comments of Argentina on the United States' Written Answers to 
Questions from the Panel to the Parties E-83 
Annex E-4 Comments of the United States on Argentina's Answers to 
Questions from the Panel to the Parties E-111 
Annex E-5 Answers of the United States to Argentina's Written Questions E-128 
Annex E-6 Comments of Argentina on the United States' Responses to the 
Written Questions from Argentina E-136 
Annex E-7 Additional Comments of the United States on Argentina's Answers 
to Questions 20, 21 and 22 from the Panel to the Parties E-140 
Annex E-8 Additional Comments of Argentina on the United States' Responses 
to the Panel's Questions to the Parties E-142 
 
 
ANNEX F 
 
REQUEST FOR THE ESTABLISHMENT  
OF A PANEL  
 
Contents Page 
Annex F Request for the Establishment of a Panel-Document WT/DS268/16 F-2 
 
 
   WT/DS268/RW 
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I. INTRODUCTION 
1.1 On 26 January 2006, Argentina requested the establishment of a panel pursuant to 
Article 21.5 of the Understanding on Rules and Procedures Go verning the Settlement of Disputes 
("DSU") concerning the United States' ("US") alle ged failure to implement the recommendations and 
rulings of the Dispute Settlement Body ("DSB") in the dispute US – Oil Country Tubular Goods 
Sunset Reviews .  At its meeting on 17 March 2006, the DSB re ferred this dispute to the original panel, 
if possible, in accordance with Article 21.5 of the DSU, to examine the matter referred to by 
Argentina in document WT/DS268/16.  At that meeting,  the parties to the dispute also agreed that the 
Panel should have standard terms of  reference.  The terms of reference are, therefore, the following: 
To examine, in the light of the relevant pr ovisions of the covered agreements cited by 
Argentina in document WT/DS268/16, the matter referred to the DSB by Argentina 
in that document and to make such fi ndings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in those agreements. 
1.2 On 20 March 2006, the Panel was composed as follows:    
Chairman: Mr. Paul O'Connor 
 Members: Mr. Bruce Cullen  
Dr. Faizullah Khilji 
1.3 China, the European Communities, Japan, Ko rea, and Mexico reserved their third-party 
rights. 
1.4 The Panel met with the parties on 12 July 2006.  It met with the third parties on 13 July 2006.  
The Panel issued its interim report to the parties on 13 October 2006. 
II. FACTUAL ASPECTS 
2.1 This dispute concerns the implementation by  the United States of the DSB recommendations 
and rulings in US – Oil Country Tubular  Goods Sunset Reviews . 
2.2 The original anti-dumping investigation on OCTG from Argentina was completed by the 
United States in 1995, with the imposition of an anti-dumping duty.  The only exporter from 
Argentina that participated in the original inves tigation was Siderca.  The dumping margin calculated 
for Siderca was 1.36 per cent, which was also the rate of the anti-dumping duty imposed with respect 
to Siderca.  The United States Department of Co mmerce ("USDOC") calculated a residual duty at the 
same rate, i.e. 1.36 per cent, for other Argentin e exporters.  During the five-years after 1995, four 
administrative reviews were initiated by the USDOC  at the request of the domestic producers of 
OCTG in the United States.  In each one of these ad ministrative reviews, Siderca stated that it had not 
made any shipment of OCTG for consumption in  the United States and the USDOC rescinded the 
administrative review.  Another Argentine OCTG producer, Acindar, started shipping the subject 
product to the United States from 1998 onwards. 
2.3 On 3 July 2000, the USDOC initiated, on its own initiative, a sunset review of the anti-
dumping duty on OCTG from Argentina.  In its fi nal determination, the USDOC determined that 
dumping was likely to continue or recur should the duty be revoked.  On 25 July 2001, the USDOC 
published the notice of continuation of the anti-dumping duty on OCTG from Argentina. 
2.4 On 7 October 2002, Argentina requested cons ultations with the United States regarding 
certain aspects of US laws, regulations and pro cedures on sunset reviews and the OCTG sunset 
review carried out by the US authorities.  Consulta tions did not result in a mutually agreed solution, WT/DS268/RW  
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and a panel was established by the DSB.  The origin al panel circulated its report to WTO Members on 
16 July 2004.  The United States appealed certain is sues of law covered in th e panel report and legal 
interpretations by the panel.  Argentina cross-appeal ed certain issues.  The Appellate Body circulated 
its report on 29 November 2004.  The Appellate Body  report and the original panel's report, as 
modified by the Appellate Body report, were a dopted by the DSB on 17 December 2004.  It is the 
measures taken to implement these rulings and recomme ndations by the DSB that this Panel is called 
upon to examine under Article 21.5 of the DSU. 
2.5 The original panel found certain US statutory and regulatory provisions regarding sunset 
reviews to be inconsistent with various provisions of the WTO Anti-dumping Agreement 
("Agreement").  More specifically, the original panel found the so-called statutory and regulatory 
affirmative and deemed waiver provisions to be in consistent, among others, w ith Article 11.3 of the 
Agreement.  This finding was upheld by the Appella te Body.  The panel also found inconsistencies, 
among others, with regard to the determination by  the USDOC in the OCTG sunset review that 
dumping was likely to continue or recur.   These findings were not appealed by the parties. 
2.6 In its effort to implement the DSB recomme ndations and rulings, the United States amended 
its sunset regulations.  The amendment, which became effective on 31 October 2005, entailed the 
deletion of the provisions regarding deemed waiv ers and the adoption of a new provision requiring 
exporters who waive their participa tion to acknowledge in writing that they are likely to continue or 
resume dumping if the duty was revoked.  In add ition, the new Regulations provide that interested 
parties now have the right to request a hearing in a sunset proceeding.  No ch anges were made to the 
text of the Statute, which was also found to be in consistent by the original panel and the Appellate 
Body.  Furthermore, in order to eliminate the inconsistencies found in the USDOC's likelihood 
determination in the OCTG sunset review, the US DOC initiated, on 2 November 2005, what is called 
a Section 129 proceeding  under US law.  In the context of th is new sunset review, the USDOC sent 
questionnaires to the three known Argentine exporters, i.e. Siderca, Acindar and Tubhier.  In its response to the USDOC's questionnaire, Tubhier stat ed that it had never exported the subject product 
to the United States and hence sought to be excluded from the review.
1  Siderca and Acindar 
responded to the questionnaires.  On 16 Decemb er 2005, the USDOC issued its Section 129 
Determination in which it found that dumping would have been likely to continue or recur had the 
anti-dumping duty on OCTG from Argentina been revoked in 2000. 
2.7 In accordance with Arti cle 21.5 of the DSU, we are called  upon to assess the existence or 
consistency with a covered agreemen t of measures taken by the United States to comply with the DSB 
recommendations and rulings at issue in these proceedings.  We note that the DSU Article 21.5 
proceedings are distinct from the original proceedings in the sense that they deal with the existence or consistency with covered agreements of measures taken to comply with the DSB recommendations and 
rulings, which are different from the measures subject to  the original proceedings.  This does not mean, 
however, that DSU Article 21.5 proceedings have to be carried out in isolation from the original 
proceedings.  To the extent necessary, panels f unctioning under Article 21.5 of the DSU can take 
account of the reasoning of the investigating authori ties in an original determ ination or the reasoning of 
the original panel, because DSU Article 21.5 proceedings are part of a "continuum of events".
2  We 
shall, therefore, in our evaluation of Argentina's claims raised in these proceedings, take account of 
the USDOC's reasoning in the original sunset review  and the reasoning of the panel and the Appellate 
Body in the original proceedings, where appropriate. 
 
                                                      
1 See, Exhibit ARG-20. 
2 Appellate Body Report, Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) 
from the United States – Recourse to Article 21.5 of the DSU  by the United States ("Mexico – Corn Syrup 
(Article 21.5 – US) "), WT/DS132/AB/RW, adopted 21 November 2001, para. 121.  WT/DS268/RW 
 Page 3 
 
 
III. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS  
3.1 Argentina requests the Panel to find that th e United States failed to implement the DSB 
recommendations and rulings in the dispute US – Oil Country Tubular Goods Sunset Reviews  and 
remains in violation of its WTO obligations.  In pa rticular, Argentina requests that the Panel make the 
following findings: 
Section 129 Determination  
1.  USDOC’s Section 129 likelihood of dumpi ng determination is inconsistent with 
Article 11.3 because: 
a. USDOC based its 2005 likelihood determ ination on factual evidence that 
USDOC developed in 2005, and which wa s not developed during the original 
sunset review in 2000, and therefore, the United States violated the 
requirements of Articles 11.3 and 11.4 of the Anti-Dumping Agreement. 
b. 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 200 0 likelihood determination and also 
cannot support the 2005 likelihood determin ation in violation of Article 11.3. 
2.  Alternatively, assuming that USDOC could,  consistently with U.S. WTO obligations, 
conduct a proceeding in 2005 to justify USDOC ’s 2001 continuation of the antidumping duty 
order on Argentine OCTG, then USDOC’s Secti on 129 likelihood of dumping determination 
is inconsistent with Article 11.3 because: 
a. The USDOC did not properly establish a sufficient factual basis, did not 
objectively assess the facts, and did not reach a reasoned conclusion supported by positive evidence that expiry of the order would be likely to lead to continuation or recurrence of dumping. 
i. The USDOC determination with respect to the Argentine exporters is 
inconsistent with Article 11.3 of the Anti-Dumping Agreement. 
ii. As for the USDOC’s statement that it also relied on its position from 
the original sunset review that th e 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 ca nnot support the 2005 likelihood 
determination in violation of Article 11.3 of the Anti-Dumping 
Agreement. 
b. The USDOC’s conduct of the Section 129 proceeding was also inconsistent 
with Articles 6.1, 6.2, 6.4, 6.5.1, 6.6, 6.8, 6.9, and Annex II of the Anti-Dumping Agreement: 
i. The USDOC’s failure to provide the parties notice regarding the 
procedures it would follow to make its determination and to notify the parties of the essential facts under consideration that formed the basis for the Section 129 Determina tion, including, when necessary, 
by providing reasonable summaries of confidential information, was WT/DS268/RW  
Page 4  
 
inconsistent with U.S. obligations under Articles 6.1, 6.4, 6.5, 6.5.1, 
and 6.9 of the Anti-Dumping Agreement. 
ii. The USDOC’s failure to hold a hearing in the Section 129 
proceeding and to provide to interested parties a full opportunity for the defence of their interests was inconsistent with U.S. obligations 
under Article 6.2 of the Anti-Dumping Agreement. 
iii. The USDOC’s failure to require interested parties to submit non-
confidential summaries of their written submissions in the Section 129 proceeding in such a manner as to permit a reasonable understanding of the substance of the confidential information 
submitted violated U.S. obligations  under Articles 6.1, 6.2, 6.5, 
6.5.1 of the Anti-Dumping Agreement. 
iv. The USDOC’s characterization of Siderca’s submitted cost 
information as unreliable without a reasonable basis for doing so and without following the requirements of the Anti-Dumping 
Agreement was in violation of U.S. obligations under Articles 6.1, 
6.2, 6.4, 6.6, 6.8 and Annex II of the Anti-Dumping Agreement. 
3.  The failure of the United States to “imp lement” the Section 129 Determination, pursuant 
to Section 129(b)(4) of the Uruguay Round Agreements Act , was inconsistent with U.S. 
obligations under Article 13 of  the Anti-Dumping Agreement. 
Failure of the United States to Repeal or Amend the Tariff Act
 
4.  The failure of the United States either to repeal Section 751(c)(4)(B) of the Tariff Act of 
1930, or to amend this provision to remove th e WTO-inconsistency, failed to implement the 
recommendations and rulings of the DSB and was inconsistent with U.S. obligations under 
Article 11.3 of the Anti-Dumping Agreement and Article XVI:4 of the WTO Agreement. 
U.S. Amendment of Section 351.218(d)(2) of USDOC Regulations  
5.  The amendment by the United Stat es of Section 351.218(d)(2) of the USDOC 
Regulations failed to implement the recomme ndations and rulings of the DSB and was 
inconsistent with U.S. obligati ons under Articles 6.1, 6.2, 6.6, 11.1, and 11.3 of the Anti-
Dumping Agreement and Article XVI:4 of the WTO Agreement. 
3.2 The United States requests the Panel to reject Arge ntina's claims in their entirety and to find 
that the United States properly implemented the DSB recommendations and rulings. 
IV. ARGUMENTS OF THE PARTIES 
4.1 The arguments of the parties are set out in their written submissions and oral statements  to 
the Panel, as well as in their answers to the Pane l's questions, the answers of the United States to 
Argentina's questions, and their comments on each others' answers.  The parties' submissions are attached to this Report as Annexes (see List of Annexes, page iv). 
  WT/DS268/RW 
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V. ARGUMENTS OF THE THIRD PARTIES 
5.1 The arguments of the third parties, China, the European Communiti es, Japan, Korea, and 
Mexico are set out in their written submissions to th e Panel and in the oral statements of China, the 
European Communities, Japan, and Mexico to the Pa nel.  The third parties' written submissions and 
oral statements are attached to this Report as Annexes (see List of Annexes, page iv). 
VI. INTERIM REVIEW 
6.1 On 13 October 2006, we submitted the interim repor t to the parties.  Both parties submitted 
written requests for the review of precise aspects of  the interim report.  Parties also submitted written 
comments on the other party's comments.  Neither party requested an interim review meeting. 
6.2 We have outlined our treatment of the parties' re quests below.  Where necessary, we have also 
made certain technical revisions to our report. 
A. REQUEST OF ARGENTINA  
6.3 First, Argentina submits that given its substan tive findings regarding the inconsistency of the 
US measure taken to comply with the DSB reco mmendations and rulings, the Panel should make a 
finding that the United States failed to impl ement such recommendations and rulings.  The 
United States disagrees and argues that there is  no basis for an additional finding that the 
United States failed to comply with the DSB recommendations and rulings. 
6.4 We recall that the mandate of a WTO pa nel operating under Article 21.5 of the DSU  is to 
make a decision on "the existence or consistency with a covered agreement of measures taken to 
comply with the [DSB] recommendations and rulings" and this is what we did in our report with 
regard to the dispute at hand.  We do not fi nd any value added, nor a legal basis in the DSU  , to make 
a finding that the United States failed to impl ement the DSB recommendations and rulings and 
therefore decline Argentina's request. 
6.5 Second, Argentina contends that in the cont ext of its claim pertaining to the USDOC's 
determination regarding the likeli hood of continuation or recurrence of dumping in the Section 129 
proceedings at issue, the Panel should cite Argen tina's argument concerning the treatment by the 
USDOC of the data submitted by Siderca.   
6.6 We note that paragraph 7.103 of our report clear ly indicates that we did not need to address 
Argentina's argument relating to the treatment by the USDOC of Siderca's data in the resolution of the 
dispute at hand.  We therefore decline to ma ke any change to our report in this regard. 
6.7 Third, Argentina submits that we should change paragraph 7.106 of our report to reflect that 
the sentence "Furthermore, because these estimated co sts were inconsistent with the other cost 
information in the file, the USDOC could not use th e data." is the United States' characterization of 
Siderca's data, not the Panel's. 
6.8 We note that it is clear that the mentioned paragraph, found under the heading 
"United States", reflects the United States' argu ments in response to Argentina's claims under 
Article 6 of the Agreement.  As such, it can not, in our view, be interpre ted to convey the Panel's 
characterization of facts.  We nevertheless made a m odification to the text of this sentence to make it 
more clear that it reflects the United States' arguments. 
6.9 Fourth, Argentina disagrees with the Panel's fi nding in paragraph 7.13 8 of the report that 
Argentina failed to establish the aspect of its claim under Article 6.5.1 of the Agreement regarding the 
comments submitted by IPSCO and contends that the Panel should change its fi nding in this regard.  WT/DS268/RW  
Page 6  
 
The United States agrees with the Panel's conclusion in this regard and subm its that the Panel should 
not change it. 
6.10 We note that in order to support its claim unde r Article 6.5.1 of the Agreement, Argentina 
cited two documents, i.e. a submission by US Steel  and another by IPSCO.  Argentina submitted the 
relevant parts of the submission by US Steel, but not the one by IPSCO.  Having made our finding on 
the basis of the US Steel's submission, we conc luded that Argentina did not properly establish the 
aspect of its claim relating to the submission by IPSC O.  It is clear that just as we analysed the 
relevant parts of the US Steel's submission, we  would have analysed IPSCO's submission too had 
Argentina submitted it.  But it did not.  We reca ll that we invited Argentina to specify which 
information it referred to in the context of  its claim under Article 6.5.1 of the Agreement.
3  Argentina 
has not, however, shown us where the relevant part s of this submission could be found.  We also 
recall that the role of a panel is not to make the ca se for either party, but to clarify parties' claims 
through questioning, where necessary.4  We therefore decline to make any modification to our report 
in this regard. 
B. REQUEST OF THE UNITED STATES  
6.11 First, the United States invites the Panel to re place the word "explicit" with "affirmative" in 
paragraphs 2.5 and 7.36 of the report for the sake of consistency.  We made these modifications. 
6.12 Second, the United States proposes a modification to the characterization in paragraph 2.6 of 
our report of the facts relating to the amendments made by the United States to its Regulations.  We 
modified this paragraph to accommodate the United States' comment. 
6.13 Third, the United States invites the Panel to ma ke certain modifications to the description of 
the United States' arguments in paragraphs 7.7 and 7.8 of our report.  We modified these paragraphs 
to accommodate the United States' comment.  Th e United States also suggests a modification 
regarding our citation of the Tariff Act of 1930 in paragraph 7.12 of our repor t, which we also made. 
6.14 Fourth, the United States contends that the Panel should make a modification to paragraph 
7.22 of the report to better describe the United States' position.  Argentina proposes a counter-
modification in case we accept the United States' comment. 
6.15 We made the modifications requested by both parties to accommodate their comments. 
6.16 Fifth, the United States contends that the Pane l should add a sentence to paragraph 7.24 of the 
report to better describe the United States' positi on.  Argentina proposes a counter-modification in 
case we accept the United States' comment. 
6.17 We made the modifications requested by both parties to accommodate their comments. 
6.18 Sixth, the United States contends that paragra ph 7.26 of our report does not correctly describe 
the nature of the disagreement between the par ties and proposes a modification to it.  More 
specifically, the United States argues that the Pa nel should dispose of Argentina's argument by 
observing that it runs counter to the original panel' s finding that deemed waivers were only found in 
the US Regulations, not the Statute.  Argentina di sagrees and submits that the Panel should reject the 
US request in its entirety.  In case the Panel accepts  the United States' comment, Argentina invites the 
                                                      
3 See, Question 23 from the Panel to Argentina. 
4 In this regard, we find support in the findings of the panel in EC – Countervailing Measures on 
DRAM Chips .  See, Panel Report, European Communities – Countervailing Measures on Dynamic Random 
Access Memory Chips from Korea ("EC – Countervailing Measures on DRAM Chips "), WT/DS299/R, adopted 
3 August 2005, para. 7.7.  WT/DS268/RW 
 Page 7 
 
 
Panel to identify, and make findings on, certain ar guments raised by Argentin a in connection with its 
claim regarding US law's waiver provisions. 
6.19 We took note of the United States' contention an d made certain modifications to paragraphs 
7.24 and 7.25 of our report to provide further clarity in this regard. 
6.20 Seventh, the United States contends that the Panel should make a modification to paragraph 
7.32 of the report to better describe the United States' argument.  Argentina submits that the Panel 
should reject the United States' comment. 
6.21 We note that the modification requested concerns the description of the United States' 
argument in line with its submissions to the Pane l in these proceedings.  We therefore made the 
requested modification to accommodate the United States' concern. 
6.22 Eighth, the United States contends that the Pane l should make two modifi cations to paragraph 
7.65 of the report to better describe the United States ' argument.  Argentina ar gues that in the event 
that the Panel accepts the United States' comment, it s hould also make a modification to better reflect 
Argentina's position regarding the United States'  argument for which clarification is sought. 
6.23 We modified paragraphs 7.64 a nd 7.65 of our report to accommodate both parties' comments. 
6.24 Ninth, the United States asks the Panel to broaden the scope of its quotation from the 
USDOC's Section 129 Determination in paragraph 7.72 of the report.  We modified the mentioned 
paragraph to accommodate the United States' comment.  
6.25 Tenth, the United States argues that the Panel should make a modification to paragraph 7.82 
of the report to better describe the United States ' position.  Argentina proposes a counter-modification 
in case we accept the United States' comment. 
6.26 We made the modifications requested by both parties to accommodate their comments. 
6.27 Eleventh, the United States contends that the Panel should make a modi fication to paragraph 
7.88 of the report to better describe the United States' position.  Argentina proposes a counter-modification in case we accept the United States' comment. 
6.28 We made the modifications requested by both parties to accommodate their comments. 
6.29 Twelfth, the United States suggests a modificati on to paragraph 7.95 of  our report to better 
reflect the United States' argument.  Argentina disag rees and submits that the Panel should reject the 
United States' request. 
6.30 We modified the mentioned paragraph in orde r to accommodate the United States' concern. 
6.31 Thirteenth, the United States suggests a modi fication to paragraph 7.106 of our report to 
better reflect the United States' argument.  We m odified the mentioned paragraph to accommodate the 
United States' concern. 
6.32 Fourteenth, the United States suggests a modifica tion to the Panel's description in paragraph 
7.129 of the report of the manner in which th e USDOC carried out its obligations under the 
Agreement in the Section 129 proceedings at i ssue.  Argentina asks the Panel to reject the 
United States' request. 
6.33 We made a modification to the mentioned paragraph to accommodate the United States' 
concern. WT/DS268/RW  
Page 8  
 
6.34 Finally, the United States suggests a modificati on to paragraph 7.131 of  our report to better 
reflect the United States' argument.  We modifi ed the mentioned paragraph to accommodate the 
United States' comment. 
VII. FINDINGS 
A. 
GENERAL ISSUES  
1. Standard of Review 
7.1 The standard of review that we shall apply in these proceedings is the same as that in the 
original panel proceedings.  We recall that Article 11 of the DSU provides the standard of review for WTO panels in general.  Article 11 requires the pa nels to make an objective assessment of both the 
factual and the legal aspects of the case. 
7.2 Article 17.6 of the Anti-dumping Agreement, howev er, sets forth a special standard of review 
that applies specifically to panel proceedings dea ling with the application of this Agreement.  
Article 17.6 provides: 
(i) in its assessment of the facts of the matter, the panel shall determine whether 
the authorities' establishment of the facts was proper and whether their 
evaluation of those facts was unbiased and objective.  If the establishment of 
the facts was proper and the evaluation was unbiased and objective, even though the panel might have reached a different conclusion, the evaluation 
shall not be overturned; 
(ii) the panel shall interpret the rele vant provisions of the Agreement in 
accordance with customary ru les of interpretation of public international law.  
Where the panel finds that a relevant provision of the Agreement admits of 
more than one permissible interpretati on, the panel shall find the authorities' 
measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations. 
7.3 Thus, taken together, Article 11 of the DSU and Article 17.6 of the Anti-dumping Agreement 
establish the standard of review that we will appl y with respect to both the factual and the legal 
aspects of these proceedings.  We shall, therefore, fi nd the US measures at issue to be consistent with 
the WTO Agreements if we find that the US in vestigating authorities have established the facts 
properly and evaluated them in an unbiased and ob jective manner, and that the determinations are 
based on a permissible interpretation of the releva nt treaty provisions.  We are not to carry out a de 
novo  review of the evidence in the record of the suns et review at issue nor to substitute our judgement 
for that of the US investigating authorities even t hough we might have made a different determination 
were we examining these records ourselves. 
2. Burden of Proof 
7.4 The burden of proof in these proceedings is the sa me as that in the original panel proceedings.  
We recall that the general principles applicable to the burden of proof in WTO dispute settlement 
require that a party claiming a violation of a provision of the WTO Agreement by another Member 
must assert and prove its claim.
5  In these Panel proceedings, Arge ntina, which has challenged the 
consistency of the US measures, thus bears the burden of demonstrating that the measures are not 
consistent with the relevant provisions of the Ag reement.  Argentina also  bears the burden of 
                                                      
5 Appellate Body Report, United States – Measure Affecting Imports of Woven Wool Shirts and Blouses 
from India  ("US – Wool  Shirts and Blouses") , WT/DS33/AB/R and Corr. 1, adopted 23 May 1997, p. 337.  WT/DS268/RW 
 Page 9 
 
 
establishing that its claims are properly before the Pa nel.  We also note that it is generally for each 
party asserting a fact to provide proof thereof.6  In this respect, therefore, it is also for the 
United States to provide evidence for the fact s which it asserts.  Finally, we recall that a prima facie  
case is one which, in the absence of effective refu tation by the other party, requires a panel, as a 
matter of law, to rule in favour of the party presenting the prima facie  case. 
B. IMPLEMENTATION OF DSB RECOMMENDATIONS AND RULINGS REGARDING THE 
INCONSISTENCY OF US WAIVER PROVISIONS WITH ARTICLE 11.3  OF THE AGREEMENT  
1. Arguments of Parties 
(a) Argentina 
7.5 Argentina submits that the United States faile d to implement the DSB recommendations and 
rulings regarding the inconsiste ncy with Article 11.3 of the Agreement found in US laws and 
regulations in the original proceedings.  Argentina argues that in addition to the amendments made to 
the Regulations, the United States had also to amend Section 751(c)(4)(B) of the Tariff Act.  Because 
the Appellate Body found both the Statute and the Regulations to be WTO-in consistent, amending the 
Regulations only did not bring the US measures in to conformity with its WTO obligations.  In 
Argentina's view, Section 751(c)(4)(B) of the Tariff Act continues to mandate an affirmative finding 
of likelihood in cases where an exporter waives its right  to participate in a sunset review, and as such, 
it is inconsistent with Articles 11.1 and 11.3 of the Anti-dumping Agreement and Article XVI:4 of the 
WTO Agreement.  Regarding the new requireme nt under the US regulatory provisions that a 
statement of waiver has to be accompanied by a st atement indicating that the exporter who waives its 
right to participate is likely to continue or resu me dumping should the measure be revoked, Argentina 
contends that by giving decisive guidance to such  a document, US law runs counter to investigating 
authorities' obligation under Article 11.3 of th e Agreement to make adequate and reasoned 
determinations on the basis of positive evidence in sunset reviews.  In Argentina's view, this 
regulatory provision precludes the USDOC from developi ng the requisite factual record for its sunset 
determinations. 
7.6 Furthermore, Argentina maintains that Secti on 751(c)(4)(B) of the Tariff Act, read in 
conjunction with Section 751(c)(4)(A), mandates an affirmative finding of likelihood not only with 
respect to exporters who waive their right to particip ate consistently with the procedure set out in the 
Regulations, i.e. through signing a statement that they are likely to continue or resume dumping, but also with respect to those who choose not to participate without signing such a statement. 
(b) United States 
7.7 The United States argues that the findings of the original panel and the Appellate Body 
concerned the provisions of the Statute and the Regula tions cumulatively.  The issue, therefore, is not 
whether or not the Statute has been amended, rath er the issue is whether the inconsistency with 
Article 11.3 of the Agreement that the original pa nel and the Appellate Body found in US law has 
been eliminated.  The United States notes the original panel's statements in the panel report that the 
deemed waivers were created by the Regulations an d not by the Statute and that any finding by the 
panel regarding these waivers would only have a b earing on the Regulations, not the Statute.  The 
United States implemented the DSB recomme ndations and rulings regarding the WTO-
inconsistencies found in US law by eliminating deem ed waivers and by requiri ng exporters who chose 
to affirmatively waive their right to participate in a sunset review to acknowledge in writing that they 
would be likely to continue or resume dumping in the case of the revocation of the duty.  Thus, a 
company-specific likelihood determination will be  based on facts and not on assumptions, and the 
                                                     
 
6 Id. WT/DS268/RW  
Page 10  
 
United States therefore considers that it has br ought its measure into compliance with the DSB 
recommendations and rulings. 
7.8 The United States also disagrees with Argentin a's argument that the current US law requires 
the USDOC to find likelihood for exporters who do not waive their right to participate.  Waivers are 
now optional and unless an exporter affirmatively wa ives its right to participate through signing a 
document to the effect that it is likely to continue  or resume dumping should the duty be revoked, the 
USDOC is not required to find likelihood for that expor ter.  It follows that with respect to exporters 
who do not affirmatively waive their right to partic ipate, the USDOC will base its determinations on a 
review of all of the facts on the administrative record.  The United States also contends that 
Argentina’s argument that the Statute provides for de emed waivers runs contrary to the findings made 
in the original proceeding because th e original panel found that the deemed waivers were created by 
the Regulations, not by the Statute. 
2. Arguments of Third Parties 
(a) Japan 
7.9 Japan submits that Section 751(c)(4)(B) of the Tariff Act, in combination with 
Section 351.218(d)(2)(iii) Regulations , is inconsistent with Article 11.3 of the Agreement because it 
precludes the USDOC from collecting the facts nece ssary for a likelihood determination based on an 
adequate factual ground.  According to Japan, Section 751(c)(4)(B) presupposes that a company's 
own admission is sufficient in every sunset review to support an affirmative finding of likelihood of 
continuation or recurrence of dumping.  There may be, however, cases where the investigating 
authorities have to consider other factors on the basi s of the information submitted by other parties or 
obtained by the authorities themselves. 
(b) Korea 
7.10 Korea submits that the United States failed to bring Section 751(c)(4)(B) of the Tariff Act 
into conformity with its WTO obligations under Articles 11.1 and 11.3 of the Anti-dumping 
Agreement and Article XVI:4 of the WTO Agreem ent.  Korea also asserts that the amended 
Regulations do not conform to the requirements of Article 11.3 because they preclude the US 
authorities from developing the relevant f actual basis for their determinations. 
3. Evaluation by the Panel 
(a) Introduction 
7.11 The Panel will first cite the relevant provisions  of the challenged US Statute and Regulations, 
and then recall the original panel and Appellate Body  findings of inconsistenc y.  After describing the 
steps taken by the United States with a view to implementing the recommendations and rulings arising 
from the original dispute settlement proceedings, th e Panel will clarify the scope of the current US 
waiver provisions, and then examine the substance of Argentina's claim of inconsistency of these 
current waiver provisions under Article 11.3.   
(b) Relevant Provisions of the US Statute and Regulations 
7.12 Section 751(c)(4) of the Tariff Act of 1930, as codified in 19 U.S.C. § 1675(c)(4), provides, 
in relevant part: 
(4)  Waiver of participation by certain interested parties (A)  In general  WT/DS268/RW 
 Page 11 
 
 
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 likely  to lead to continuation or recurrence 
of dumping or a countervailable subsidy (as the case may be) with respect to that 
interested party .7  (emphasis added) 
7.13 Section 351.218(d)(2)(iii) of the Regulations, now repealed by the United States, used to read: 
(iii)  No response from an interested part y.  The Secretary will consider the failure  
by a respondent interested party to file a complete substantive response to a notice of initiation under paragraph (d)(3) of this section as a waiver of participation
 in a sunset 
review before the Department.8  (emphasis added) 
7.14 Section 351.218(d)(2)(ii) of the Regulations, revised by the United States, now reads: 
(ii)  Contents of statement of waiver.   Every statement of waiver must include a 
statement indicating that the respondent inte rested party waives participation in the 
sunset review before the Department; a stat ement that the respondent interested party 
is likely to dump... if the order is revoke d or the investigation is terminated...9 
(c) Findings of the Original Panel and Appellate Body  
7.15 We recall the original panel and Appellate B ody findings regarding the US statutory and 
regulatory waiver provisions cited in paras. 7.12-7.13  above, before describing the revisions cited in 
paras. 7.13-7.14 above. 
7.16 In the original proceedings, Argentina challe nged the waiver provisions of US law, among 
others, under Article 11.3 of the Agreement.  These provisions directed the USDOC to make an 
affirmative finding of likelihood for exporters who do not participate in the USDOC phase of a sunset 
review.  In such cases, those exporters would have the possibility of participating in the United States 
International Trade Commission ("USITC") part of s unset reviews.  The US statutory and regulatory 
provisions subject to the original proceedi ngs provided for two types of waivers:   
(a) Section 751(c)(4)(A) of the Tariff Act of 1930 provided that exporters could elect not 
to participate in the USDOC proceedings in a sunset review and limit their 
participation to the USITC proceedings.  The original panel characterized such 
waivers as "affirmative waivers".10 
                                                      
7 Exhibit ARG-33 at 1152. 
8 Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular 
Goods from Argentina  ("US – Oil Country Tubular Goods Sunset Reviews "), WT/DS268/R and Corr.1, adopted 
17 December 2004, modified by Appellate Body Report, WT/DS268/AB/R, para. 7.82. 
9 Exhibit ARG-12 at 62064. 
 10 Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular 
Goods from Argentina  ("US – Oil Country Tubular Goods Sunset Reviews "), WT/DS268/R and Corr.1, adopted 
17 December 2004, modified by Appellate Body Report, WT/DS268/AB/R, para. 7.83.  For ease of reference, we WT/DS268/RW  
Page 12  
 
(b) Section 351.218(d)(2)(iii) of the USDOC's Sunset Regulations ( supra , para. 7.13), 
stipulated that failure to submit a full subs tantive response to the notice of initiation 
of a sunset review also constituted a waiver.  The original panel referred to this as an 
"implicit" or "deemed" waiver.
11 
7.17 In the original proceedings, Argentina also ch allenged Section 751(c)(4)(B) of the Tariff Act 
of 1930, which enunciates the consequence of electi ng not to participate in the USDOC proceedings:  
the USDOC would find these exporters to be likely to  continue or resume dumping in the event of the 
revocation of the order in question.  Thus, pursuant to Section 751(c)(4)(B) of the Statute, the consequence of both deemed and a ffirmative waivers was the same: a finding by the USDOC that the 
exporters who waived participa tion would be likely to continue or resume dumping should the 
measure be repealed.  
7.18 In its assessment of Argentin a's claim regarding waivers, the original panel distinguished 
between affirmative and deemed waivers and opine d that since the provisions relating to deemed 
waivers were only found in the Regulations, its fi ndings about these waivers would also only affect 
the Regulations, whereas its findings regarding affirm ative waivers would have implications for the 
statutory provisions.
12  The original panel then went on and found both affirmative and deemed 
waiver provisions to be inconsistent with Article 11.3 of the Agreement.  In doing so, the original 
panel cited the relevant statutory and regulatory provisions of US law found to be WTO-inconsistent.  
The original panel stated: 
In conclusion, we find that both affirmative and deemed waivers  provisions of US 
law, i.e. Section 751(c)(4)(B) of the Tariff Act  and Section 351.218(d)(2)(iii) of the 
USDOC's Regulations , are inconsistent  with the investigating authorities' obligation 
to determine likelihood of continuation or  recurrence of dumping under Article 11.3  
of the Anti-Dumping Agreement.13  (emphasis added) 
7.19 The Appellate Body upheld the panel's findi ngs with regard to both types of waivers.14 
(d) Steps Taken by the United States to Implement the DSB Recommendations and Rulings 
7.20 In its implementation of the DSB recommenda tions and rulings in this dispute, the 
United States made certain amendments to the USDOC's Regulations.  The text of the Statute, however, remained unchanged.  As indicated  above, the United States repealed Section 
351.218(d)(2)(iii), and revised Section 351.218(d)(2 )(ii) of the Regulations.  We note that, for 
purposes of these proceedings, the main significance of  this amendment to Section 351.218(d)(2)(ii) 
of the Regulations is that an affirmative waiver has now to be accompanied by a written statement by 
the exporter waiving its right to participate in a sunset  review that the exporter is likely to continue or 
resume dumping should the duty be repealed.  In ot her words, there may only be an affirmative waiver 
if the statement of waiver includes an acknowledgement  that the waiving exporter is likely to continue 
or resume dumping should the duty be repealed. 
                                                                                                                                                                    
 
will, to the extent necessary in our assessment of Ar gentina's claim in these pro ceedings, also use the same 
terminology for types of waivers used by the original panel. 
11 Id., para. 7.83. 
12 Id., para. 7.85. 
13 Id., para. 7.103. 
14 Appellate Body Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country 
Tubular Goods from Argentina  ("US – Oil Country Tubular Goods Sunset Reviews "), WT/DS268/AB/R, adopted 
17 December 2004, para. 235.  WT/DS268/RW 
 Page 13 
 
 
(e) Scope of Current Waiver Provisions 
7.21 Before addressing the substance of Argentina's Ar ticle 11.3 claim, we first identify the scope 
of the current waiver provisions subject to Argentina's claim. 
7.22 Argentina argues that the amendment to th e Regulations has not eliminated the WTO-
inconsistency in the US sunset legislation.  Accord ing to Argentina, in addition to the Regulations, the 
United States also had to amend Section 751(c)(4)(B)  of the Tariff Act.  According to Argentina, 
Section 751(c)(4)(B) of the Tariff Act continues to be  inconsistent with Artic le 11.3 of the Agreement 
because it mandates an affirmative finding of likelihood both for exporters who waive their right to 
participate as required under Section 351.218(d)(2)(i i) of the Regulations, and those who elect not to 
participate in a sunset review without following th is procedure (i.e. without explicitly waiving their 
right to participate and acknowledging that they are likely to continue or resume dumping in the event 
of the revocation of the order).  The United States disagrees and asserts that all that the United States 
needed to do in its implementation of the DS B recommendations and rulings was to amend the 
Regulations to ensure that the US sunset legislati on in its entirety would opera te in a WTO-consistent 
manner.  This did not necessarily require a statutory amendment.  By repealing the provisions of the 
Regulations concerning deemed waivers, and by re quiring that respondent interested parties waiving 
their right to participate also file a statement that they are likely to continue or resume dumping in the 
case of the revocation of the anti-dumping order, the United States eliminated WTO-inconsistencies in its law because, according to the United Stat es, any company-specific likelihood determination 
based on a waiver would be based on affirmative evidence.   
7.23 We understand that Argentina's argument concer ns the scope of application of the waiver 
provisions of the Tariff Act.  Argentina contends that Section 751(c)(4)(B) of the Tariff Act directs 
the USDOC to find likelihood for exporters who elect not to participate  in a sunset review without  
filing a statement of waiver accompanied by a statement that the exporter is likely to continue or resume dumping in the event of the revocation of the anti-dumping order, as required under Section 351.218(d)(2)(ii) of the Regulations.  In other words, Argentina contends that the Statute directs the 
USDOC to find likelihood of continuation or recu rrence of dumping with respect to exporters who 
remain silent following the initiation of a sunset review. 
7.24 Argentina agrees that the deemed waiver provi sions under Section 351.218(d)(2)(iii) of the 
Regulations have been repealed by the United States.
15  In the view of Argentina, however, "elect not 
to participate" within the meaning of Section 751( c)(4)(A) of the Tariff Act entails not only exporters 
who file a statement of waiver as required under Sec tion 351.218(d)(2)(ii) of the Regulations, but also 
those who elect not to participate simply by remaining silent.  The United States disagrees and 
submits that electing not to participate within the meaning of Section 751(c)(4)(A) is tantamount to a 
waiver within the meaning of Section 751(c)(4)(B) and that the procedure through which a waiver has 
to be filed is explained in Sections 35 1.218(d)(2)(i) and (ii) of the Regulations.16  In addition, the 
                                                      
15 Response of Argentina to Question 2(a) from the Panel. 
16 Response of the United States to Question 6 from the Panel. 
We also recall the following finding by the original panel in this regard: 
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.  Section 351.218(d)(2)(iii) of the Regul ations, 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. WT/DS268/RW  
Page 14  
 
United States contends that Argentina’s argument runs  directly counter to the findings of the original 
panel.   
7.25 We recall that the original panel found S ection 751(c)(4)(B) of the Tariff Act and 
Section 351.218(d)(2)(iii) of the Regulations, both with  regard to affirmative and deemed waivers, to 
be inconsistent with the investigating authorities' obligation to arrive at a reasoned conclusion on the 
basis of positive evidence pursuant to Article 11.3 of the Agreement.  In particular, the original panel 
found: 
(a) In respect of waiver provisions of US law:  (i) The provisions of Section 751(c)(4)(B) of the Tariff Act relating to 
affirmative waivers are inconsistent
 with the investigating authorities' obligation to 
determine likelihood of continuation or r ecurrence of dumping under Article 11.3 of 
the Anti-Dumping Agreement, 
 (ii) The provisions of Secti on 351.218(d)(2)(iii) of the USDOC's 
Regulations relating to deemed waivers are inconsistent  with the investigating 
authorities' obligation to determine likelihood of continuation or recurrence of 
dumping under Article 11.3 of the Anti-Dumping Agreement...17 
It is therefore clear that the original panel's findi ng relating to deemed waivers was restricted to the 
Regulations.  Perhaps understandably, therefore, th e United States concentrated its implementation 
efforts with respect to deemed waivers on revising the waiver provisions in the Regulations.  That 
said, however, on the basis of the parties' claims an d arguments before this Panel, the issue that now 
confronts us is the scope of US law's existi ng waiver provisions after the provisions of the 
Regulations relating to deemed waivers have been eliminated. 
7.26 The disagreement between the pa rties as to the scope of the waiver provisions under US law 
boils down to the meaning of electing not to participate  for purposes of Section 751(c)(4)(A) of the 
Tariff Act.  We must therefore carefully examine the provisions of the municipal law of the United States in determining its consistency with the WTO rules.
18  It is well established that WTO 
panels may examine the relevant aspects of the municipal law of a WTO Member in order to 
determine whether that Member has complied with its WTO obligations.  We are cognizant, however, 
that we are not called upon to interpret the US municipal law as such.  Our examination shall be 
limited to determining whether the United St ates has complied with its WTO obligations.19 
                                                                                                                                                                     
Panel Report, United States – Sunset Reviews of Anti-Dump ing Measures on Oil Country Tubular Goods 
from Argentina  ("US – Oil Country Tubular Goods Sunset Reviews "), WT/DS268/R and Corr.1, adopted 
17 December 2004, para. 7.85. 
17 Id., para. 8.11 
18 In this regard, we note the Appellate Body's pronouncement that WTO panels may interpret the 
municipal law of a Member in assessing its consistency with the WTO rules.   See, for instance, Appellate Body 
Report, United States – Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan ("US – Hot-
Rolled Steel "), WT/DS184/AB/R, adopted 23 August 2001, para. 200. 
19 See, Appellate Body Report, India – Patent Protection for Pharmaceutical and Agricultural Chemical 
Products ("India – Patents (US) "), WT/DS50/AB/R, adopted 16 January 1998, paras. 65-67.  In US – Section 211 
Appropriations Act , the Appellate Body opined that a Member's municipal law may serve not only as evidence of 
facts, but also as evidence of co mpliance or non-compliance with a Me mber's WTO obligations.  A panel's 
examination of a Member's municipal law for the purpose of determining compliance with the covered agreements is a legal characterization by a panel.  Appellate Body Report, United States – Section 211 Omnibus 
Appropriations Act of 1998 ("US – Section 211 Appropriations Act
 "), WT/DS176/AB/R, adopted 
1 February 2002, paras. 105-106.  WT/DS268/RW 
 Page 15 
 
 
7.27 Turning to the Statute, we note that paragraph (4) of Section 751(c) of the Tariff Act which 
comprises subparagraphs (A) and (B) is entitled "Wai ver of participation by certain interested 
parties".  Subparagraph (A) states that an interested  party may elect not to participate in the USDOC 
part of a sunset review and therefore limit its participation to the USITC proceedings.  Subparagraph (B) provides that when an interest ed party waives its participation pursuant to 
paragraph (4) of Section 751(c), the USDOC will find that  interested party to be  likely to continue or 
resume dumping should the duty be revoked.  It is clear from the text that subparagraph (B) 
enunciates the legal consequence of a waiver.  We also recall that Section 351.218(d)(2)(ii) of the 
Regulations explains the procedure through which an exporter can waive its right to participate in the 
USDOC part of a sunset review.  What is not clear  from the text, and what the parties' views diverge 
on, is whether electing not to participate  has a broader scope than waiving participation .  More 
specifically, the parties disagree as to whether an  exporter who remains silent following the initiation 
of a sunset review is deemed to ha ve waived its right to participate ev en if that exporter does not file a 
statement of waiver as required by the Regulations. 
7.28 We recall once again that the heading of paragraph (4) of Section 751(c) is "Waiver of 
participation by certain interested parties".  This may indicate that the whole Section is about waivers. 
Hence, electing not to participate has the same me aning as waiving its right to participate.  The 
heading of subparagraph (A) is "In general" and that of subparagraph (B) is "Effect of waiver".  Read 
in conjunction with the heading of paragraph (4), it is reasonable to consider that subparagraph (A) is 
intended to explain waivers in general and (B) conve ys the legal consequence of a waiver.  However, 
given the lack of precision in the Statute in this regard, we turn, for guidance, to the Statement of 
Administrative Action ("SAA"), which is an au thoritative interpretative tool for the Statute.
20  
Because the SAA is an authoritative interpretativ e tool for the Statute under US law, we find it 
appropriate to look into the meaning of the Statute in light of the relevant provisions of the SAA.  The SAA provides in relevant part: 
To reduce the burden on all parties involve d, new section 751(c)(4) permits foreign 
interested parties, including foreign gove rnments, to waive their participation
 in a 
Commerce sunset review.  If Commerce receives such a waiver , Commerce will 
conclude that revocation or termination w ould be likely to lead to continuation or 
recurrence of dumping or countervailable s ubsidies with respect to the submitter.21  
(emphasis added) 
7.29 We note that in its first sentence, the above excerpt states that Section 751(c)(4) allows the 
interested parties to waive their right to particip ate in a USDOC sunset review.  It does not mention 
the situation of exporters who remain silent fo llowing the initiation of a sunset review without 
waiving their right to participate.  Furthermore, the second sentence, which clarifies the provisions of subparagraph (B) of Section 751(c)(4 ) relating to the legal conseque nce of a waiver, mentions the 
submitter , which, according to our reading of the text of  the SAA, refers to the submitter of a waiver 
under Section 751(c)(4).  The SAA therefore suppor ts our interpretation of the Statute that the 
meaning of electing not to participate within th e meaning of Section 751(c)(4)(A) is the same as 
waiving the right to participate in a sunset review. 
7.30 Turning to the Regulations, we recall that th e previous deemed waiver provisions under 
Section 351.218(d)(2)(iii) of the Regulati ons were repealed by the United States
22, and that revised 
Section 351.218(d)(2)(ii) of the Regulations now indicates that every statement of waiver must 
include a statement by the respondent interested part y that it waives its right to participate and that it 
                                                      
20 See, Response of the United States to Question 1 from the Panel, footnote 2.  We note that Argentina 
has not objected to the US description of the SAA as being an authoritative interpretative tool for the Statute under US law. 
21 Exhibit US-12 at 881. 
22 Response of Argentina to Question 2(a) from the Panel. WT/DS268/RW  
Page 16  
 
is likely to dump if the order is revoked.  In our view, therefore, the phrase elect not to participate  
within the meaning of Section 751(c)(4)(A) is tant amount to a waiver within the meaning of Section 
751(c)(4)(B) and the procedure through which a waiver has to be filed is set out in 
Sections 351.218(d)(2)(i) and (ii) of the Regulations.
23 Whereas the previous regulatory provisions 
envisaged two types of waivers , i.e. deemed and affirmative, the revised regulatory provisions 
envisage only one kind of waiver, i.e. affirmative.  It  follows that the concept of waiver in the Statute 
now refers only to an affirmative election not to participate. 
7.31 We therefore find that the concept of waiver  set out in Section 751(c)(4) of the Statute, in 
conjunction with the regulatory provisions in S ection 351.218(d)(2), now refers only to the affirmative 
waiver  situation that is, where an exporter elects not to participate in a review by filing an affirmative 
statement of waiver, accompanied by a statement th at the exporter is likely to continue or resume 
dumping in the absence of the order.24 
(f) Examination of Consistency of the Waiver Pr ovisions with Article 11.3 of the Agreement 
7.32 We now turn to our assessment of the subs tance of Argentina's claim relating to the 
consistency of the waiver provisi ons clarified above with Article 11.3.  We recall that Argentina 
argues that the current provisions of US law on wa ivers are inconsistent with Article 11.3 of the 
Agreement.  Argentina submits that once an export er waives its right to participate and files a 
statement of waiver along with a statement that it is likely to continue or resume dumping in the case of revocation of the order, the Regulations preven t the USDOC from developing the requisite factual 
basis for a determination based on positive evidence c onsistent with Article 11.3 of the Agreement.  
In Argentina's view, this is inconsistent both w ith regard to the company-specific determination 
mandated by the Statue and with regard to the or der-wide determination which would inevitably be 
tainted by the statutorily-mandated company specifi c determination.  The United States disagrees and 
submits that after the amendments made to the Re gulations, US law now operates consistently with 
Article 11.3 of the Agreement as articulated by the Appellate Body.   More specifically, the 
United States argues that the inconsistency which w as found in US law by the original panel and the 
Appellate Body was that US law directed the US DOC to make a company-specific determination on 
the basis of assumptions, as opposed to evidence.  The United States argues that because deemed 
waivers have been repealed and affirmative waiver s have to be accompanied by the exporter's own 
acknowledgement that it is likely to continue or resume dumping if the measure is revoked, the 
USDOC's company-specific determinations will now be based on positive evidence. 
7.33 Article 11.3 provides: 
Notwithstanding the provisions of paragra phs 1 and 2, any definitive anti-dumping 
duty shall be terminated on a date not la ter than five years from its imposition (or 
from the date of the most recent review under paragraph 2 if that review has covered both dumping and injury, or under this pa ragraph), unless the authorities determine, 
in a review initiated before that da te on their own initiative or upon a duly 
substantiated request made by or on be half of the domestic industry within a 
reasonable period of time prior to that date, that  the expiry of the duty would be likely  
                                                     
 
23 Response of the United States to Question 6 from the Panel. 
24 We note that the United States submitted the USDOC 's determination in one sunset review that was 
carried out after the amendments made to the Regulations in which none of the foreign exporters participated 
and yet the USDOC did not make an affirmative finding of likelihood of continuation or recurrence of dumping 
pursuant to Section 751(c)(4)(B) of the Tariff Act.  This determination shows that although none of the 
exporters responded, the USDOC nevert heless analyzed the facts available to  it and then reached a conclusion.  
See Exhibit US-18 at 3-5.  The manner in which the USDOC treated the non-existence of any response from the 
exporters involved in the mentioned sunset review, in our view, supports our interpretation of the Statute.  WT/DS268/RW 
 Page 17 
 
 
to lead to continuation or recurrence of dumping and injury.22  The duty may remain 
in force pending the outcome of such a review. 
_______________ 
 22 When the amount of the anti-dumping duty is assessed on a retrospective basis, a 
finding in the most recent asse ssment proceeding under subparagra ph 3.1 of Article 9 that no 
duty is to be levied shall not by itself require the authorities to terminate the definitive duty.  
7.34 Article 11.3 requires investigating authorities to terminate an anti-dumping duty not later than 
five years from its imposition unless they determine in a review initiated before then that dumping 
and injury are likely to continue or recur should the duty be revoked.  Article 11.3 does not, however, 
set out a specific methodology for making such determinations.  In principle, therefore, investigating authorities are not restricted in the choice of me thodology they will follow in making their sunset 
determinations.  In their choice of methodology, ho wever, the investigating authorities should have 
regard to both "investigat ory and adjudicatory aspects"
25 of sunset reviews and make forward-looking 
determinations on the basis of evidence relating to th e past.  They must arrive at reasoned conclusions 
on the basis of positive evidence.26  In so doing, the investigating authorities may not remain passive.  
Rather, the authorities have to act with  an "appropriate degree of diligence".27 
7.35 We therefore see the issue before us as whet her, after the amendments made by the 
United States with a view to implementing the DS B recommendations and rulings in the original 
proceedings, the waiver provision under Secti on 751(c)(4)(B) of the Tariff Act, operating in 
conjunction with Section 751(c)(4)(A) of the Tariff Act and Section 351.218(d)(2) of the Regulations, 
precludes the USDOC in some or all situations arising in sunset reviews from making a reasoned determination of likelihood of continuation or r ecurrence of dumping based on an adequate factual 
foundation, as required by Article 11.3 of the Anti-dump ing Agreement.  In this regard, we shall base 
our ultimate assessment of Argentina's claim re garding waivers on the USDOC's order-wide, as 
opposed to company-specific, determinations.
28 
                                                      
25 Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-
Resistant Carbon Steel Flat Products from Japan  ("US – Corrosion-Resistant Steel Sunset Review "), 
WT/DS244/AB/R, adopted 9 January 2004, para. 111. 
26 In this regard, we find support in the findings of the Appellate Body in the original proceedings in 
this case.  See, Appellate Body Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country 
Tubular Goods from Argentina  ("US – Oil Country Tubular Goods Sunset Reviews "), WT/DS268/AB/R, adopted 
17 December 2004, para. 234.   Also see Appellate Body Report, United States – Sunset Review of Anti-Dumping 
Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan  ("US – Corrosion-Resistant Steel Sunset 
Review "), WT/DS244/AB/R, adopted 9 January 2004, paras. 111-115, including the citation with approval of 
the panel report, para. 7.271. 
27 Id., para. 111. 
28 In this regard, we find support in the following Appellate Body find ings in the original proceedings: 
In our view, it was neither necessary nor relevant for the Panel to draw a conclusion as to the 
WTO-consistency of the  company-specific  determinations resulting from the waiver 
provisions.  As we have observed, the relevant inquiry in this dispute is whether the order-
wide  likelihood determination would be rendered inconsistent with Article 11.3 by virtue of 
the operation of the waiver provisions.  It appe ars to us, therefore, that the Panel could not 
have properly arrived at a finding of consistency or inconsistency with Article 11.3  until  it 
had examined how the operation of the waiver provisions could affect the order-wide 
determination.  Had the Panel ceased its inquir y with the finding that the company-specific 
determinations are not "supported by reasoned and adequate conclusions based on the facts 
before an investigating authority", the Panel w ould not have had a basis to conclude that the 
waiver provisions are inconsistent, as such , with Article 11.3.  (footnote omitted) 
Appellate Body Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country 
Tubular Goods from Argentina  ("US – Oil Country Tubular Goods Sunset Reviews "), WT/DS268/AB/R, adopted 
17 December 2004, para.232. WT/DS268/RW  
Page 18  
 
7.36 We consider that, in some situations, the st atutory and regulatory waiver provisions may not 
necessarily preclude the USDOC from arriving at reas oned conclusions of like lihood of continuation 
or recurrence of dumping on the basis of an adequa te factual foundation as required by Article 11.3.  
For instance, in a sunset review where all exporters  explicitly and affirmatively waive their right to 
participate and acknowledge, in accordance with Sec tion 351.218(d)(2)(ii) of the Regulations, that 
they are likely to continue or resume dumping if the measure is revoked, it may well be reasonable for 
the USDOC to find likelihood for these exporters individually and arguably also on an order-wide 
basis.  We do not disagree with Argentina's argume nt that the evidentiary value that should be given 
to a particular exporter's affirmative waiver and acknowledgement that it will continue or resume 
dumping in the absence of the order may vary from one sunset review to the other.
29  On this basis, it 
may well be that, in the circumstances of a given review, such a signed statement by one or several 
exporters may constitute at least part of the evid entiary basis on which the authorities may base their 
sunset determinations.  The investigating authori ties would have to assess such a statement or 
statements objectively in light of all other evid ence gathered by the inv estigating authorities and 
placed on the record. 
7.37 However, we also see that there may be othe r situations where the waiver provisions may 
preclude the USDOC from reaching reasoned conclusions on an adequate factual basis.  We recall our 
finding above that, with the deletion of Section 351.218(d)(2)(iii) of the Regulations, the waiver 
provision of Section 751(c)(4)(B) of the Tariff Act now addresses only affirmative  waivers.  In other 
words, following the regulatory amendments undertak en by the United States, the waiver provisions 
of the Statute only require the USDOC to find lik elihood of continuation or recurrence of dumping 
with respect to exporters who affirmatively waive their right to participate.  We also recall that the 
statutory mandate only applies to the USDOC's company-specific determinations for individual 
exporters who waive their right to participate.  On  the other hand, we note that the SAA requires the 
USDOC to make its sunset determinations on an order-wide basis.30  That is, after making its 
company-specific determination(s) pursuant to S ection 751(c)(4)(B) of the Tariff Act, the USDOC 
has to make an order-wide final determination re garding the likelihood of continuation or recurrence 
of dumping from the country involved.  There is no provision under US law, statutory or otherwise, 
however, that determines the outcome of the USDOC's order-wide sunset determinations.  Given 
these considerations, in a sunset review involving multiple exporters from one country, where some of 
the exporters neither file a complete substantive r esponse nor expressly waive their right to participate 
and simply remain silent after the initiation of th e sunset review, while some other exporters follow 
Section 351.218(d)(2)(ii) of the Regulations and affi rmatively waive their right to participate, the 
USDOC may have to find likeli hood on an order-wide basis b ecause of the company-specific 
determinations that it may have  made under Section 751(c)(4)(B) for the waiving exporters.   
7.38 We recall that US law requires the USDOC to make its sunset determinations on an order-
wide basis.  The question, therefore, is what im pact, if any, a company-specific determination of 
likelihood made pursuant to Section 751(c)(4)(B) of  the Tariff Act may have on the USDOC's order-
wide determination. 
7.39 In response to questioning on this matter, th e United States argued that the USDOC is not 
required to make an affirmative finding of likelihoo d on an order-wide basis simply because it made a 
company-specific finding of likelihood pursuant to Section 751(c)(4)(B) of the Tariff Act.  The United States submits that where the USDOC ma kes such company-specific findings for some 
                                                     
 
29 Second Written Submission of Argentina, paras. 170-171. 
30 See, Response of the United States to Question 1 from the Panel.  We note that the Appellate Body, 
in US – Corrosion-Resistant Steel Sunset Review , found that US law's requirement that sunset determinations be 
made on an order-wide basis was not WTO-inconsiste nt because the Agreement did not mandate company-
specific sunset determinations.  Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties 
on Corrosion-Resistant Carbon Steel Flat Products from Japan  ("US – Corrosion-Resistant Steel Sunset 
Review "), WT/DS244/AB/R, adopted 9 January 2004, paras. 149-157.  WT/DS268/RW 
 Page 19 
 
 
exporters under Section 751(c)(4)(B), those findings  would be taken into account in the order-wide 
determination, but they would not necessarily determin e the outcome of the order-wide determination.  
The USDOC would take all record evidence into account in making its order-wide determination, 
including the company-specific determin ations made under Section 751(c)(4)(B).31  W e  n o t e ,  
however, that the United States has not directed our attention to any provision of US law which would 
support its proposition that the USDOC's order-wide  determinations are independent from the 
company-specific determinations made unde r Section 751(c)(4)(B) of the Tariff Act.32  W e  f i n d  i t  
difficult to understand how the USDOC would find no likelihood of continuation or recurrence of 
dumping on an order-wide basis in a sunset review where it may have made an  affirmative likelihood 
determination for some exporters pursuant to Sec tion 751(c)(4)(B) of the Tariff Act.  Given that 
Section 751(c)(4)(B) requires the USDOC to make an affirmative likelihood determination for 
individual exporters who waive their right to partic ipate, it seems to us that such company-specific 
determinations would necessarily have a significant impact on, or even determine, the outcome of the USDOC's order-wide determination.  Hence, we can reasonably conclude that in every sunset review 
involving multiple exporters the USDOC will have to find likelihood on an order-wide basis if one 
exporter waives its right to participate, becau se otherwise the USDOC would have found no 
likelihood with respect to the exporters who waive their right to participate. 
7.40 Making an affirmative finding of likelihood of continuation or recurrence of dumping from a 
country without considering the information that may have been submitted by exporters who do not 
waive their right to participate in the sunset  review would not, in our view, be a reasoned 
determination premised on an adequate factual basis.
33  As we noted above, the investigating 
authorities are expected to be sufficiently active in  sunset reviews in developing the necessary factual 
premise for their determinations.  The provisions of Section 751(c)(4)(B) of the Tariff Act, however, 
would preclude the USDOC from taking into co nsideration evidence submitted by cooperating 
exporters or evidence otherwise collected by the USDO C in sunset reviews where there is at least one 
other exporter who waives its right to particip ate.  In such cases, the USDOC's order-wide 
determination would be based on the assumption th at because one exporter waived its right to 
participate and acknowledged to be likely to con tinue or resume dumping, other exporters are also 
likely to continue or resume dumping.34  The USDOC would thus be ignoring the information which 
is relevant to its sunset determin ation and which is readily available to it and would fail to observe the 
obligation of the investigating authorities to ma ke reasoned determinations of likelihood of 
continuation or recurrence of dumping based on a sufficient factual premise in accordance with 
Article 11.3 of the Agreement. 
                                                      
31 Response of the United States to Question 4 from the Panel. 
32 The original panel also identified the same concern regarding the impact of the USDOC's company-
specific determinations on its order-wide determinations and rejected the same argument put forward by the United States.  Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular 
Goods from Argentina  ("US – Oil Country Tubular Goods Sunset Reviews "), WT/DS268/R and Corr.1, adopted 
17 December 2004, para. 7.102. 
33 In this regard, we find support in the Appellate Body's findings in US – Corrosion-Resistant Steel 
Sunset Review .  See, Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on 
Corrosion-Resistant Carbon Steel Flat Products from Japan  ("US – Corrosion-Resistant Steel Sunset Review "), 
WT/DS244/AB/R, adopted 9 January 2004, para. 111. 
34 In this regard, we note that the Appellate Body in the original proceedings found a legal scheme that 
would give rise to sunset determinations based on assumptions to be inconsistent with Article 11.3 of the 
Agreement.  Appellate Body Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country 
Tubular Goods from Argentina  ("US – Oil Country Tubular Goods Sunset Reviews "), WT/DS268/AB/R, adopted 
17 December 2004, para. 234.  We recognize that the Appellate Body's finding related to a specific aspect of US 
law's waiver provisions before the US implementation.  We nevertheless find the concern underlying the 
Appellate Body's finding to support our reasoning with regard to Argentina's claim before us. WT/DS268/RW  
Page 20  
 
(g) Conclusion 
7.41 Having found that the US statutory and regulatory waiver provisions may, in some situations, 
preclude the USDOC from making a reasoned dete rmination of likelihood of continuation or 
recurrence of dumping based on an adequate fact ual foundation – such as where the USDOC may be 
required to make an affirmative finding on an order-w ide basis due to an affirmative finding, pursuant 
to Section 751(c)(4)(B) of the Tariff Act, for individu al exporters who waive their right to participate 
– we thus find Section 751(c)(4)(B) of th e Tariff Act, operating in conjunction with 
Section 751(c)(4)(A) of the Tariff Act and Sec tion 351.218(d)(2) of the Regulations, to be 
inconsistent with Article  11.3 of the Agreement. 
7.42 We note that although Argentina also cited Articles 6 and 11.1 of the Anti-dumping 
Agreement and Article XVI:4 of the WTO Agreement in  the context of this claim, it never developed 
arguments under these provisions and we ther efore consider that it did not make a prima facie case.  
Given our finding of inconsistency with Article  11.3 of the Anti-dumping Agreement, even if 
Argentina developed arguments under these provisions , we do not consider that addressing these 
claims would be necessary for the resolution of this dispute.  We therefore do not make any further 
finding with respect to this claim. 
C. 
FACTUAL BASIS OF THE USDOC 'S SECTION 129 DETERMINATION  
1. Arguments of Parties 
(a) Argentina 
7.43 Argentina asserts that the United States failed to  bring its measures into conformity with 
Articles 11.3 and 11.4 of the Agreement because the USDOC developed a "new and different" factual 
basis in the 2005 Section 129 review which was not  developed in the original sunset review.  
According to Argentina, the original sunset dete rmination that was found to be WTO-inconsistent 
could not be justified on the basis of the facts relatin g to the original review period, but collected for 
the first time in 2005.  This would render the s ubstantive and temporal requirements of Articles 11.3 
and 11.4 meaningless.  In this regard, Argentina c ites the financial statements of the investigated 
Argentine exporters and the customs data obtaine d from the US customs authorities as two pieces of 
information that were examined by the USDOC for the first time in the Section 129 proceedings in 
2005.  The United States could have developed such da ta in its original sunset review, which it did 
not.  Thus, the United States should not be entitled to  do this five years after the original sunset 
determination. 
(b) United States 
7.44 The United States contends that Argentina h as shown no textual support for its assertion that 
the USDOC was precluded from developing a new fact ual basis pertaining to the original review 
period for its Section 129 Determination.  In the view of the United States, Argentina's approach 
would make implementation impossible in cases where a Member's determination is found to lack a sufficient factual basis. 
2. Arguments of Third Parties 
(a) China 
7.45 China submits that neither the Anti-dumping Ag reement nor the DSU precludes investigating 
authorities from developing new facts in implementing the DSB recommendations and rulings.  Furthermore, Article 11.3 of the Anti-dumping Ag reement requires investigating authorities to 
consider all the evidence in the new sunset pro ceedings, including newly-submitted evidence.  In  WT/DS268/RW 
 Page 21 
 
 
China's view, in the proceedings at issue in this  case, the USDOC could not possibly implement the 
DSB recommendations and rulings without gathering new facts. 
(b) Mexico 
7.46 Mexico agrees with Argentina that the USDOC could not base its Section 129 Determination 
on the new facts gathered following the origin al sunset review.  Giving a Member multiple 
opportunities to gather the requisite factual basis for a sunset determination w ould, in Mexico's view, 
render Article 11.3 meaningless. 
3. Evaluation by the Panel 
7.47 We recall the original panel's finding regardi ng the factual basis of the USDOC's likelihood 
determination in the original sunset review.  Th e original panel opined that the USDOC's sunset 
determination lacked an adequate factual foundatio n because it was based on the existence of the 
original dumping margin.  According to the original  panel, a finding of likelihood of continuation or 
recurrence of dumping in a sunset review could not be based on the existence of the original margin 
or on the continued imposition of the original dut y during the lifespan of the anti-dumping duty at 
issue.35 
7.48 In its effort to eliminate this inconsiste ncy, the USDOC, in making its Section 129 
Determination, sought new information from three Argentine exporters.36  The information sought by 
the USDOC related to the original sunset review period, i.e. 1995-2000.  Two exporters, Siderca and 
Acindar, provided some information in response to the USDOC's questionnaire.  The USDOC based 
its Section 129 Determination partly on this new information and partly on its volume analysis from 
the original sunset review.  Argentina argues that , pursuant to Articles 11.3 and 11.4, the USDOC was 
not allowed to collect new facts in its re-determination. 
7.49 We note that Argentina uses the term "new and di fferent factual basis" to refer to the facts 
that the USDOC collected for the first time  in the Section 129 proceedings at issue.37  Argentina also 
acknowledges, however, that part of the factual basi s of the Section 129 Determination, notably that 
relating to the USDOC's volume analysis, was carried over from the original sunset review.38  For 
purposes of our analysis, we also adopt the characteri zation used by Argentina.  The main issue raised 
by Argentina's claim, therefore,  is whether the USDOC was allo wed under Articles 11.3 and 11.4 of 
the Agreement to base its Section 129 Determination,  among others, on facts pertaining to the original 
review period, i.e. 1995-2000, that it collected for the first time in 2005, in the context of implementing the DSB recommendations and rulings  after the original WTO dispute settlement 
proceedings. 
7.50 We have cited the text of Article 11.3 above ( supra , para. 7.33).  That provision requires 
termination of an anti-dumping duty not later than five years from its imposition unless an investigating authority determines, in a review in itiated before then, that dumping and injury are 
likely to continue or recur should the duty be revoke d.  Article 11.4 states, in part: "Any such review 
shall be carried out expeditiously and shall normally be concluded w ithin 12 months of the date of 
initiation of the review".  Both of these provisions reflect temporal considerations.  However, we 
                                                     
 
35 Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular 
Goods from Argentina  ("US – Oil Country Tubular Goods Sunset Reviews "), WT/DS268/R and Corr.1, adopted 
17 December 2004, modified by Appellate Body Report, WT/DS268/AB/R, paras. 7.219-7.221. 
36 The USDOC's questionnaires asked for information regarding the Argentine exporters' production 
volumes, per-unit cost of manufacture, interest expenses and their consolidated and unconsolidated financial 
statements for the fiscal years betwee n July 1995-June 2000.  The questionnaires also asked the exporters to 
describe the nature of their sales process in their domestic and export markets.  See, Exhibit ARG-13. 
37 See, for instance, First Written Submission of Argentina, paras. 52-54. 
38 See, First Written Submission of Argentina, para. 67. WT/DS268/RW  
Page 22  
 
disagree with Argentina that either or both of th ese provisions, in isolation, resolve the issue before 
us.  We do not consider that the Article 11.3 oblig ation to terminate an anti-dumping duty within five 
years in the absence of an affirmative likeli hood determination resulting from a review initiated 
before that point in time, or the Article 11.4 ob ligation to carry out a review expeditiously and 
normally within 12 months, precludes an investigating authority from developing a new factual basis 
pertaining to the original review period in the course of implementing the DSB recommendations and 
rulings pertaining to the original determination. 
7.51 In our view, the resolution of Argentina's clai m must have regard to broader, horizontal 
considerations underpinning the operation of the WTO dispute settlement system.
39  The issue of 
whether a WTO Member implementing the DSB r ecommendations and rulings arising from findings 
of WTO inconsistency of an original measure may subsequently collect new facts and establish a new 
evidentiary basis in support of the measure taken to comply, is not limited to the reviews of anti-dumping or countervailing duties, including sunset re views.  An analogous issue may arise in the 
context of anti-dumping or counter vailing duty investigations, not to mention in general WTO dispute 
settlement outside the trade remedies area. 
7.52 In our view, Argentina's proposition that the United States was somehow precluded from 
developing a new factual basis in its implementing sun set re-determination in this case runs counter to 
the overall operation of the WTO dispute settlement  system, and, in particular, the notion of 
implementation  of the DSB recommendations and rulings embodied in the relevant provisions of the 
DSU.   
7.53 In this regard, we first note Article 19.1 of the DSU, which reads: 
Article 19  
 
Panel and Appellate Body Recommendations 
 
1.  Where a panel or the Appellate Body conc ludes that a measure is inconsistent with 
a covered agreement, it shall recommend that the Member concerned bring the 
measure into conformity with that agreement .  In addition to its recommendations, the 
panel or Appellate Body may suggest ways  in which the Member concerned could 
implement the recommendations.  (footnotes omitted, emphasis added) 
7.54 Article 19.1 stipulates that when a WTO pane l or the Appellate Body finds a Member's 
measure to be inconsistent with that Member's WTO obligations, it shall recommend that the Member 
concerned bring the measure into conformity with such obligations.  It does not, however, prescribe 
the ways in which such measures may be brought into conformity with the WTO rules.  Thus, a 
Member enjoys a certain degree of discretion in r espect of implementation, which essentially consists 
of bringing the measure held to be inconsistent with the obligations of the WTO Member concerned 
under particular provisions of a particular covere d agreement, into conformity with those same 
provisions.  Article 3.7 of the DSU stresses that "the first objective  of the dispute settlement 
mechanism is usually to secure withdrawal of the WTO-inconsistent measure " (emphasis added).  For 
its part, Article 22.1 of the DSU cautions that neither compensation nor suspension of concessions or other obligations is to be "preferred to full im plementation of a recommendation to bring a measure 
into conformity with the covered agreements".  Cl early, therefore, the non-conforming measure is to 
be brought into a state of conformity with specified treaty provisions either by withdrawing such a 
                                                     
 
39 We recall that, pursuant to Article 1.2 of the DS U, the rules and procedures  of the DSU shall apply 
subject to special or additional rules and procedures  identified in Appendix 2 to the DSU.  Neither the 
provisions of Article 11 pertaining to reviews, nor the other provisions of the Agreement pertaining to 
investigations, are identified as such special or additional rules and procedur es.  Accordingly, we believe that 
the provisions of the DSU and the Anti-dumping Agreement must be read together in a coherent manner.  WT/DS268/RW 
 Page 23 
 
 
measure completely, or, where possible, by modifying it by revising the inconsistent aspect of the 
measure involved.  It may be that, in some cases, the only way to bring a measure into conformity 
with the pertinent WTO obligation would be to el iminate it.  In other cases, a Member may, for 
example, revise the measure, in the implementati on phase, including through the development of the 
requisite factual basis to support the measure taken to comply.   
7.55 Furthermore, it is clear that implementation may also involve temporal considerations.  
Article 21.1 of the DSU indicates that, "[p]rompt compliance with recommendations and rulings of the DSB is essential in order to ensu re effective resolution of disputes to the benefit of all Members".  
Article 21.3 of the DSU indicates that "... if it is  impracticable to comply immediately with the 
recommendations and rulings, the Member concerned shall have a reasonable period of time in which 
to do so".  Article 22.1 states that "Compen sation and the suspension of concessions or other 
obligations are temporary measures available in th e event that the recommendations and rulings are 
not implemented within a reasonable period of time".   
7.56 By definition, a re-determination made in the course of implementing the DSB 
recommendations and rulings is different from the de termination subjected to the original dispute 
settlement proceedings.  The re-determination may i nvolve the examination of factors different from, 
or in addition to, those examined in the context of the original determination.  Arguing that a WTO 
Member is precluded from collecting new facts in a re-determination made in order to implement the 
DSB recommendations and rulings would, therefore,  run counter to the overarching principle of the 
implementation of these recommendations and rulings, as elaborated in the provisions of Articles 19, 
21 and 22 of the DSU cited above. 
7.57 As we have already indicated, while this issue ma y arise, as is the case here, in the context of 
a sunset review re-determination, it may also arise not only in the implementation of the DSB 
recommendations and rulings relating to trade remedy investigations, but also more generally in any 
dispute settlement proceeding that involves a measu re taken by a WTO Member on the basis of a 
determination/analysis carried out by the competent authorities of that Member.
40  It is therefore a 
systemic issue that concerns the implementation of  the DSB recommendations and rulings in general.  
Indeed, we can easily find examples of WTO disput es – relating to both trade remedy and other types 
of measures in the WTO – where the Member co mplained against collected new facts in its 
implementation of the DSB recommendations and rulings.   
7.58 In the trade remedies area, for example, in Mexico – Corn Syrup , the Mexican investigating 
authorities gathered new information from some inte rested parties in their re -determination for purposes 
of implementing the DSB r ecommendations and rulings.41  In US – Countervailing Measures on Certain 
EC Products , the US investigating authorities collected ne w information in the course of a Section 129 
sunset review.42  Furthermore, we note that the panel in US – Countervailing Measures on Certain EC 
Products (Article 21.5 – EC)  opined that pursuant to Article 21.3 of the Agreement on Subsidies and 
Countervailing Measures ("SCM Agreement") "an investigating authority has the obligation to 
consider all evidence placed on the record in maki ng a likelihood of contin uation or recurrence of 
subsidization re-determination".43  The panel stated that failure to accept into evidence relevant 
information submitted by interested  parties for the first time in a Section 129 re-determination could 
                                                      
40 Such as in the case of sanitary or phytosanitary measures. 
41 Panel Report, Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the 
United States, Recourse to Article 21.5 of the DSU  by the United States ("Mexico – Corn Syrup (Article 21.5 – 
US)"), WT/DS132/RW, adopted 21 November 2001, upheld by Appellate Body Report, WT/DS132/AB/RW, 
para. 3.47. 
42 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 ("US – Countervailing 
Measures on Certain EC Pr oducts (Article 21.5 – EC) "), WT/DS212/RW, adopted 27 September 2005, 
para. 7.252. 
43 Id., para. 7.238. WT/DS268/RW  
Page 24  
 
lead to a WTO-inconsistent determination by the investigating authorities.
44  Given that Article 21.3 of 
the SCM Agreement is the parallel provision to Arti cle 11.3 of the Anti-dumping Agreement, we find 
support in this finding for our reasoni ng with regard to Argentina's claim.45 
7.59 We may also look beyond the trade remedies area for further examples of implementation 
involving the development of a new factual basis for a measure.  In Australia – Salmon , for instance, 
the Australian Quarantine and Inspection Service un dertook further import risk analyses with respect 
to certain fresh chilled and frozen salmon, in im plementing the DSB recommendations and rulings.46  
In Japan – Apples , Japan made a re-determination regarding certain apple infections on the basis of 
additional scientific studies carried out in th e implementation of the DSB recommendations and 
rulings.47   
7.60 These examples demonstrate that competent auth orities of WTO Members may need to collect 
new information supplementary to that on the record of their orig inal determinations in making 
subsequent determinations in the context of impl ementing the DSB recommendations and rulings.  The 
WTO-consistency of collecting new facts in the implementation of the DSB recommendations and 
rulings was not questioned in any one of these case s.  On the basis of the foregoing, we reject 
Argentina's claim that the USDOC acted inconsistently  with Articles 11.3 and 11.4 of the Agreement by 
developing a new factual basis pertaining to the orig inal review period for pur poses of its Section 129 
Determination.   
7.61 We note that Argentina's specific claims c oncerning the USDOC's Section 129 Determination 
at issue are raised as an alternativ e to its claim regarding the factual basis of this Determination.  
Having rejected Argentina's claim regarding the development of a new factual basis for the USDOC's 
Section 129 Determination, we now turn to Argentin a's specific claims regard ing this Determination. 
D. USDOC 'S DETERMINATION REGARDING THE LIKELI HOOD OF CONTINUATION OR RECURRENCE 
OF DUMPING  
1. Introduction 
7.62 The issue in these DSU Article 21.5 proceedings  is whether the United States implemented 
the DSB recommendations and rulings at issue cons istently with its WTO obligations.  Argentina 
argues that the USDOC's Section 129 Determ ination, intended to implement the DSB 
recommendations and rulings, was inc onsistent with Article 11.3 of the Agreement.  We therefore 
have to assess the consistency of the US measure take n to comply with Article 11.3 of the Agreement.  
In our assessment, we shall view the implementing measure as independent from the measure in the 
original proceedings and assess its consistency with  Article 11.3 independently.  This does not mean, 
                                                      
44 Id., paras. 7.252-7.254. 
45 We note that the Appellate Body in US – Corrosion-Resistant Steel Sunset Review  a l s o  u s e d  i t s  
previous reasoning under the SCM Agreement in the context of the Anti-dumping Agreement.  Appellate Body 
Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat 
Products from Japan  ("US – Corrosion-Resistant Steel Sunset Review "), WT/DS244/AB/R, adopted 
9 January 2004, para. 107 and footnote 39. 
In this regard, we also find support in the Ministerial Declaration on Dispute Settlement Pursuant to 
the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 or Part V 
of the Agreement on Subsidies and Countervailing Measures , in which Ministers reco gnized the need for the 
consistent resolution of disputes arising from anti-dumping and countervailing duty measures. 
46 Panel Report, Australia – Measures Affecting Importation of Salmon, Recourse to Article 21.5 of the 
DSU by Canada ("Australia – Salmon (Article 21.5 – Canada) "), WT/DS18/RW, adopted 20 March 2000, 
para. 2.6. 
47 Panel Report, Japan – Measures Affecting the Importation of Apples, Recourse to Article 21.5 of the 
DSU by the United States  ("Japan – Apples (Article 21.5 – US) "), WT/DS245/RW, adopted 20 July 2005, 
paras. 4.21-4.22.  WT/DS268/RW 
 Page 25 
 
 
however, that we are completely precluded from re ferring to the original panel's reasoning in the 
original proceedings.  Where appropriate, we shall take account of the USDOC's reasoning in the original sunset review or the original panel's own reasoning because DSU Ar ticle 21.5 proceedings are 
part of a "continuum of events".
48 
7.63 We note that in the sunset review at issue, the USDOC determined that dumping from 
Argentina was likely to continue or recur should the anti-dumping duty on the imports of OCTG from 
this country be revoked.  The Section 129 Determin ation was based on two findings: 1) likely past 
dumping, and 2) the USDOC's volume analysis, inco rporated from the original sunset review.  
Argentina submits that both of these findings were devoi d of a sufficient factual basis.  In Argentina's 
view, therefore, neither of these two findings c ould support the USDOC's order-wide determination 
for Argentina.  Below, we examine thes e two allegations of Argentina in turn. 
2. USDOC's Analysis of Likely Past Dumping 
(a) Arguments of Parties 
(i) Argentina 
7.64 First, Argentina contends that the USDOC us ed the wrong standard in its past dumping 
analysis.  The USDOC based its analysis on likely  past dumping during the original sunset review, 
which is at odds with Article 11.3.  According to Argentina, likely dumping in the past can not be the 
basis for a prospective likelihood analysis in a sun set review.  Second, Argentina takes issue with the 
price comparison that the USDOC carried out in its likely past dumping analysis.  In this regard, Argentina first argues that the USDOC erred by comparing Acindar's export prices to the United States with the US prices obtained from a publication.  This, according to Argentina, is 
inconsistent with the definition of  dumping under Article 2 of the Ag reement. Argentina also asserts 
that the USDOC failed to make a product-specifi c comparison.  More specifically, Argentina 
disagrees with the United States' position that the US DOC took into consideration relevant factors for 
price comparison, and argues that, based on the me thodology used, the USDOC could not even know 
what specific products it was comparing.  Furtherm ore, Argentina contends that the USDOC did not 
take account of the differences in the levels of trad e in this price comparison.  Third, Argentina argues 
that the USDOC improperly interpreted a statement in Acindar's financial statements to support its 
conclusion that this company was likely to continue  or resume dumping.  Regarding the financial 
statements, Argentina also argues that since OCTG constituted less than 1 per cent of Acindar's total 
production, the USDOC's conclusions drawn from this  company's financial statements can not be 
representative of this industry in Argentina. 
(ii) United States 
7.65 The United States disagrees that the legal standard applied by the USDOC was WTO-
inconsistent.  The United States asserts that Ar ticle 11.3 does not prescribe a specific methodology 
regarding investigating authorities'  determinations pertaining to th e likelihood of continuation or 
recurrence of dumping.  It follows that in cas es where respondents can not provide information 
regarding their actual past behaviour, the investigati ng authorities can rely on likely past behaviour in 
determining likelihood of continua tion or recurrence of dumping.  According to the United States, 
Argentina's argument that the USDOC's approach w as inconsistent with the definition of dumping 
under Article 2 of the Agreement can not be s upported because the USDOC was not calculating a 
margin of dumping in the sunset review at issue.   Regarding the price comparison, the United States 
acknowledges that the factors cited by Argentina c ould have affected the price comparison.  The 
                                                     
 
48Appellate Body Report, United States – Investigation of the International Trade Commission in 
Softwood Lumber from Canada, Recourse to Article 21.5 of the DSU by Canada ("US – Softwood Lumber VI 
(Article 21.5 – Canada) "), WT/DS277/AB/RW, adopted 9 May 2006, para. 103. WT/DS268/RW  
Page 26  
 
United States argues, however, that because Acindar’ s financial statements di d not provide data on an 
OCTG-specific level and Acindar was unable to  report its OCTG costs, the USDOC relied on 
"available data".  Additionally, the United States contends that its comparisons did account for the 
factors that were most critical for price comparis ons.  Finally, the United States contends that the 
USDOC's use of Acindar's financial statements to  conclude that Acinda r planned to continue 
exporting OCTG to the United States was proper. 
(b) Arguments of Third Parties 
(i) China 
7.66 China contends that the USDOC acted inconsis tently with the notion of dumping as described 
in Article 2 of the Agreement, which also applies in sunset reviews, by comparing Acindar's export 
prices with the prevailing US prices.  The USDOC  should have compared Acindar's export prices 
with its normal value.  China also asserts that the standard that the USDOC applied with regard to the 
past dumping determination was WT O-inconsistent.  According to China, at the time the USDOC 
made its Section 129 Determination, whether Aci ndar was dumping during the period of review was a 
matter of fact, as opposed to an even t that was or was not likely to occur.  If the USDOC decided to 
rely on whether Acindar dumped in that period, it should have made a clear factual finding, not a 
finding that Acindar was likely dumping.  In China' s view, the factual basis of the USDOC's Section 
129 Determination regarding the likel ihood of continuation or recurrence of dumping, i.e. that there 
was likely dumping in the past and that imports de clined after the imposition of the order, was not 
adequate. 
(ii) European Communities 
7.67 The European Communities argues that "although a sunset review determination is 
prospective, it must have as a foundation a valid hi storical determination of dumping".  Without a 
calculation of dumping in the past, one can not proper ly talk about continuation or recurrence of that 
dumping.  According to the European Communities, basing a sunset determin ation on a determination 
of past "likely" dumping runs against the provisions of the Agreement. 
(iii) Japan 
7.68 Japan submits that the USDOC's finding that Acindar was likely dumping in the past was 
speculative and hence it could not be the basis of a sunset determination.   
(c) Evaluation by the Panel 
7.69 In considering Argentina's allegation that the USDOC's finding of and reliance upon likely 
past dumping was inconsistent with Article 11.3,  we first recall the relevant legal obligations, 
followed by the pertinent text of the Section 129 Determination.   
7.70 We recall that Article 11.3 provides: 
Notwithstanding the provisions of paragra phs 1 and 2, any definitive anti-dumping 
duty shall be terminated on a date not la ter than five years from its imposition (or 
from the date of the most recent review under paragraph 2 if that review has covered 
both dumping and injury, or under this pa ragraph), unless the authorities determine, 
in a review initiated before that da te on their own initiative or upon a duly 
substantiated request made by or on be half of the domestic industry within a 
reasonable period of time prior to that date, th at the expiry of the duty would be likely 
to lead to continuation or recurrence of dumping and injury.  The duty may remain in force pending the outcome of such a review.  (Footnote omitted)  WT/DS268/RW 
 Page 27 
 
 
7.71 We recall ( supra , para. 7.34) the well-established subs tantive obligations that Article 11.3 
imposes on the investigating authorities in sunset re views.  Article 11.3 stipulates that investigating 
authorities may maintain an anti-dumping measure past five years of imposition only if they make a determination, in a review initiated before the expiry of that period, that dumping and injury are likely 
to continue or recur in the case of the revocati on of the measure.  Although Article 11.3 does not 
prescribe a specific methodology through which such lik elihood determinations ha ve to be made, it is 
well established that the authorities have to base thei r likelihood determinations in sunset reviews on 
reasoned conclusions drawn from an adequate factual basis premised on positive evidence. 
7.72 The USDOC's Section 129 Determination reads in pertinent parts: 
The Department compared the unit prices of specific types of Acindar's U.S. OCTG 
shipments to average prices for the corr esponding OCTG sold in the United States 
during these years...Our analysis indicates that Acindar's U.S. selling prices during the sunset period were substantially lower th an prevailing U.S. market prices for the 
corresponding OCTG products.  Based upon the foregoing, and in the absence of usable cost data from Acindar, we find that Acindar likely was dumping subject 
OCTG during the original sunset review  period...Moreover, these Acindar sales 
occurred at a time when Acindar was showing losses on its financial statements; the financial statements of other significant OCTG producers, such as Siderca, Lone Star, Maverick, and North Star also were showing losses... These losses are an indication that the OCTG market was depressed. The combination of Acindar selling in the United States at below market prices at the end of the sunset period and the depressed 
OCTG market indicates that Acindar likely was dumping significantly
 in the U.S. 
market.49  (Footnote omitted, emphasis added) 
7.73 The Section 129 Determination demonstrates that  the USDOC found that there was likely past 
dumping during the period of review.  We note, and the United States does not disagree, that the USDOC's finding regarding likely past dumping wa s solely based on a comparison of the export 
prices of Acindar, one of the two Argentine exporters who participated in the sunset review at issue, 
with the prevailing OCTG prices in the US mark et during the period of review.  Since the USDOC 
found the cost data submitted by the other Argentine e xporter, Siderca, to be unreliable, it declined to 
use that data in its determination of likely p ast dumping.  Our evaluation regarding the USDOC's 
finding of likely past dumping will, therefore, also  be limited to the USDOC's determination with 
regard to Acindar. 
7.74 The parties' arguments raise two important issues.  The first issue is whether the USDOC's 
finding of likely past dumping was a determination of dumping .  The second issue is whether the 
USDOC's reliance upon a finding of likely  past dumping as one of the bases of its determination of the 
likelihood of continuation or recurrence of dum ping was consistent with Article 11.3 of the 
Agreement.  In our view, however, a definitive r esolution of these questions regarding the USDOC's 
Section 129 Determination is not necessary to our assess ment of Argentina's claim.  This flows from 
our view that even if this was not a determination of dumping  as the United States asserts, and even if 
relying on likely past dumping was appropriate – issues which we do not here address – the USDOC's 
analysis of likely past dumping  lacked a sufficient factual basis. 
7.75 Whether or not the USDOC's finding that "Acindar likely was dumping significantly in the 
US market" was a determination of dumping  subject to the full requirements set out in Article 2, the 
fact remains that the USDOC carried out an analysis relating to the concept of dumping .  This is 
evident from the plain language of the USDOC's Section 129 Determination.  In order for the 
USDOC's finding to support a determination of lik ely continuation or recurrence of dumping pursuant 
to Article 11.3, the likely past dumping referred to  in the USDOC's Section 129 Determination would 
                                                     
 
49 Section 129 Determination (Exhibit ARG-16 at 7-8). WT/DS268/RW  
Page 28  
 
have at a minimum to relate to the general concep t of dumping that is reflected in Article 2 of the 
Agreement. 
7.76 Article 2.1 of the Agreement, which applies throughout the Agreement
50, sets out the two 
definitional components of dumping, i.e. normal valu e and export price.  Article 2.1 stipulates that 
dumping occurs when an exporter exports its product at a price that is lower than its normal value.  As 
Article 2.1 makes clear, the starting point for normal value is "the comparable price, in the ordinary 
course of trade" for the like product when des tined for consumption in the exporting country.51  Thus, 
the concept of dumping is, in the first instance, a co mparison of home market and export prices.  Only 
in the circumstances set forth in Article 2.2 may an investigating authority look  to alternative bases to 
home market prices, such as costs, wh en determining normal value.    
7.77 In the sunset review at issue, the USDOC did not even ask Acindar to provide information 
regarding its normal value and export price.  Rather , it restricted itself to asking for certain cost 
information and, when that cost information was not provided, compared Acindar's export prices to 
the United States, obtained from the US customs au thorities, with the prevailing prices in the US 
market.  The failure to seek information about Ac indar's home market pri ces means that the USDOC 
made a finding of likely dumping without making any e ffort to obtain information that is essential to 
the core principle of dumping as a price-to-price comparison.  We do not see how a finding of likely 
past dumping  could have a sufficient factual basis if it did not take into account at a bare minimum 
these elementary aspects of the concept of dumping  as that term is used in the Anti-dumping 
Agreement. 
7.78 The United States contends that "[the USDOC]  did not seek Argentine producers’ export 
prices to the United States because it was aware of the brevity of the time available to conduct the 
proceeding".52  We do not consider the allegedly limited amount of time the USDOC had in order to 
complete the Section 129 proceedings at issue coul d absolve the USDOC from any of its obligations 
under the Anti-dumping Agreement, let alone an obligation as fundamental as observing the definition of dumping  set out under Article 2.1 of the Agreement.   The United States argues that the USDOC 
knew that "Acindar did not have a viable home market or third country sales".
53  We note, however, 
that the memorandum that the Unit ed States cites in order to prove this point pertains to an 
administrative review carried out after the period of review for the original sunset review and hence 
for the Section 129 proceedings at issue.  It ther efore is not germane to the period of review.  
Moreover, because this memorandum concerned only a one-year period, even if it pertained to one of 
the five years of the period of review, it would not, in our view, suffice to demonstrate that there were 
                                                      
50 In this regard, we find support in the following finding of the Appellate Body in US – Corrosion-
Resistant Steel Sunset Review : 
We agree with Japan that the words "[f]or the purpose of this Agreement" 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 the  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 subject to the duty (that is, to the introduction of that product into the 
commerce of the importing country at less than its normal value)...  (footnote omitted) Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant 
Carbon Steel Flat Products from Japan  ("US – Corrosion-Resistant Steel Sunset Review "), WT/DS244/AB/R, 
adopted 9 January 2004, para. 109. 
51 See also Article VI.1 of the Genera l Agreement on Tariffs and Trade 1994. 
52 Response of the United States to  Question 10(b) from the Panel. 
53 Response of the United States to  Question 11(a) from the Panel.  WT/DS268/RW 
 Page 29 
 
 
no viable home market or third country sales throughout the period of review.  This does not justify the USDOC's failure to seek information relating to the Argentine exporters' home market sales.  We 
therefore reject this argument too. 
7.79 We recall that Argentina raised two more argu ments regarding the alle ged inconsistency of 
the USDOC's determination of likely past dumping.   These arguments concern the mechanics of the 
comparison carried out by the USDOC between Aci ndar's export prices and the prevailing US prices, 
and the inferences the USDOC made from Acindar's fi nancial statements.  Given our finding that the 
USDOC's finding of likely past dumping lacked a sufficient factual basis because it was based on a 
comparison of Acindar's export prices with the prevailing prices in the US market, we need not and do not make any further findings regarding the manner in which the USDOC carried out such 
comparison. 
7.80 We now turn to the second factual underpinni ng of the USDOC's order-wide likelihood 
determination, i.e. the volume analysis. 
3. USDOC's Volume Analysis 
(a) Arguments of Parties 
(i) Argentina 
7.81 Argentina submits that the USDOC's volume analys is in its Section 129 Determination is part 
of its measure taken to comply with the DSB recommendations and rulings because the USDOC relied on this analysis in its determination.  Arge ntina notes that in its Section 129 Determination, the 
USDOC incorporated its volume analysis from the orig inal sunset review.  Argentina contends that 
the investigating authorities have to analyze th e reasons behind the decline in imports before 
concluding that the decline demonstrates that exporters cannot export the subject product without 
dumping.  In this sunset review, Argentine exporters tried to explain to the USDOC that the decline in 
the volume of imports stemmed from other factors, but the USDOC did not address these comments in its determination.  According to Argentina,  therefore, because it disregarded positive evidence 
submitted by the exporters regard ing the reasons for the decline in the volume of imports, the 
USDOC's Section 129 Determination fell short of the obligation to arrive at a reasoned conclusion on 
the basis of positive evidence under Article 11.3. 
(ii) United States 
7.82 The United States argues that, because the origin al panel and the Appellate Body did not 
make any findings regarding the USDOC's volume analysis in the original proceedings, the 
incorporation of this analysis into the Section 12 9 Determination can not make it part of the measure 
taken to comply with the DSB recommendations a nd rulings.  According to the United States, it 
would be unfair for the United States to be told for the first time in a DSU Article 21.5 proceeding that its volume analysis is WTO-inconsistent beca use the United States could then be faced with a 
request for suspension of concessions without being granted a reasonable period of time to comply.  Regarding the comments made by the Argentine e xporters concerning the volume of imports, the 
United States asserts that these comments were not germane to the implementation by the 
United States of the DSB recommendations and ruling s in these proceedings b ecause, according to the 
United States, they addressed a question that was not re levant to the Section 129 proceedings at issue. WT/DS268/RW  
Page 30  
 
(b) Arguments of Third Parties 
(i) China 
7.83 China argues that the USDOC's reliance on th e volume figures from the original sunset 
review, without explaining why the decrease in the volume of imports resulted from the imposition of 
the measure at issue, contradicted with investig ating authorities' obligation to make a reasoned 
determination on the basis of positive evidence under Article 11.3. 
(ii) Japan 
7.84 According to Japan, to the extent that ther e is a close link between the USDOC's volume 
analysis and the DSB recommendations and rulings in  the original proceedings, this Panel can re-
consider whether the USDOC's volume analysis in its Section 129 Determina tion brings its measure 
into compliance with the Unites States' WTO obligations.  Without taking a position regarding the 
factual aspects of Argentina's claim, Japan argues that  the fact that the original panel did not make a 
finding on the issue of the volume of dumped impor ts in the original proceedings cannot excuse the 
USDOC, in the implementation of the DSB recommenda tions and rulings, from its obligation to make 
a determination on the basis of all the facts on the record, including the newly-submitted evidence.  In 
other words, the USDOC should have evaluated its  volume determination from the original sunset 
review in conjunction with the evidence on the reco rd of the Section 129 proceedings.  In Japan's 
view, therefore, by not doing that, the USDOC  acted inconsistently with Article 11.3. 
(iii) European Communities 
7.85 The European Communities contends that the USDOC's volume analysis in it Section 129 
Determination is part of the measure taken by the United States to comply with the DSB 
recommendations and rulings in these proceedings.  Th is is because the volum e analysis is among the 
factors on which the Section 129 Determination is premised. 
(iv) Mexico 
7.86 Mexico argues that it is clear that the USDOC specifically referenced its volume analysis 
from the original sunset review in the Section 129 Determination at issue.  It follows that the 
USDOC's volume analysis in its Section 129 Determ ination is part of the measure taken by the 
United States to comply with the DSB recommendations  and rulings.  Mexico further submits that the 
USDOC's volume analysis was inconsistent with Ar ticle 11.3 because it failed to look into the causes 
of the decline in the volume of dumped imports. 
(c) Evaluation by the Panel 
(i) Introduction 
7.87 We recall that the USDOC's order-wide determ ination of likelihood of continuation or 
recurrence of dumping from Argentina was premised on two findings:  (1) likely past dumping, and 
(2) the USDOC's volume analysis, incorporated from th e original sunset review.  We found above that 
the first premise of the USDOC's determination, i. e. likely past dumping, lacked a sufficient factual 
basis.  We will now examine the USDOC's volume anal ysis.  In this context, we will first address the 
issue of whether the USDOC's volume analysis is part of the measure taken by the United States to 
comply with the DSB recommendations and rulings a nd hence whether it is properly before us.  If so, 
subsequently, we will evaluate the consistency w ith Article 11.3 of the Agreement of the USDOC's 
volume analysis.  WT/DS268/RW 
 Page 31 
 
 
(ii) Is the USDOC's Volume Analysis Part of th e Measure Taken to Comply With the DSB 
Recommendations and Rulings? 
7.88 Argentina submits that the volume analysis is an integral part of the USDOC's Section 129 
Determination as the USDOC specifically relied on it in  its Determination.  Argentina submits that by 
relying in its Section 129 Determination on its volum e analysis from the original sunset review, the 
USDOC subjected that aspect of its Determina tion to WTO scrutiny.  The United States will, 
therefore, not be prejudiced if the Panel addresses Argentina's claim in these proceedings.  Argentina 
notes that it has consistently argued that the USDOC 's volume analysis was WTO-inconsistent, hence 
it would be prejudiced if the Panel declines to  address its claim in these proceedings.  The 
United States notes that the original panel did not ma ke a finding of inconsistency with regard to the 
USDOC's volume analysis in the original proceed ings.  Furthermore, the United States notes that 
Argentina requested the original panel to make a finding regarding the USDOC's volume analysis and 
the panel declined to make such a finding.  Fi nally, the United States notes that Argentina could 
appeal the original panel's disinclination to make  a finding on the volume issue and its exercise of 
judicial economy, which Argentina chose not to do .  For these reasons, the United States submits that 
Argentina is now precluded from raising the USDOC's volume analysis in the original sunset review 
which has been incorporated by reference into the Section 129 Determination at issue without any 
changes.54  According to the United States, it would be unfair for the United States to be told for the 
first time in these DSU Article 21.5 proceedings  that the USDOC's volume analysis was WTO-
inconsistent.  According to the United States, this  is because it would have no reasonable period of 
time to bring its measure into conformity with the Agreement and would be subject to potential 
suspension of concessions as a result of a finding of  breach that was not in the original report. 
7.89 The Panel finds it useful to co mmence its analysis by recalling the original panel's findings 
regarding the issue of volume.  In the original pr oceedings, Argentina raised a claim, and the parties 
submitted arguments, regarding the WTO-inconsis tency of the USDOC's volume analysis.  The 
original panel, having found the USDOC's determ ination to be WTO-inc onsistent on other grounds, 
did not address Argentina's allega tions pertaining to the volume analysis in its interim report.55  That 
is, the original panel applied j udicial economy in this regard.56  During the interim review, Argentina 
invited the original panel to make findings ab out the USDOC's volume analysis and the panel 
declined this request.  In its final report, the pa nel noted that it made the relevant factual findings 
which, in case Argentina appealed the panel's deci sion, could allow the Appellate Body to complete 
the panel's analysis, if necessary.57  Argentina did not appeal the panel's decision to apply judicial 
economy with regard to Argentina's claim on the USDOC's volume analysis.  In its Section 129 
Determination, the USDOC incorporated this volume analysis from the original sunset review.  The 
Section 129 Determination prov ides in relevant parts: 
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.58  
(emphasis added) 
                                                      
54 Response of the United States to Question 17(b) from the Panel, para. 75. 
55 Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular 
Goods from Argentina  ("US – Oil Country Tubular Goods Sunset Reviews "), WT/DS268/R and Corr.1, adopted 
17 December 2004, modified by Appellate Body Report, WT/DS268/AB/R, para. 7.221. 
56 Both parties agree that the original panel app lied judicial economy with respect to the USDOC's 
volume analysis.  See, Response of Argentina to Question 17(a) from the Panel; Response of the United States 
to Question 17(a) from the Panel. 
57 Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular 
Goods from Argentina  ("US – Oil Country Tubular Goods Sunset Reviews "), WT/DS268/R and Corr.1, adopted 
17 December 2004, modified by Appellate Body Report, WT/DS268/AB/R, para. 6.11. 
58 Section 129 Determination (Exhibit ARG-16 at 1). WT/DS268/RW  
Page 32  
 
In making our likelihood determination, we also relied on our previous finding 
regarding the volume of imports  of subject merchandise for the period before and the 
period after the issuance of the antidumping duty order.59  (emphasis added) 
In assessing likelihood, we also rely on our previous finding rega rding the volume of 
imports  of subject merchandise for the period be fore and the period after the issuance 
of the antidumping order.  In the original sunset review, we found that after 
imposition of the order, import volumes signi ficantly decreased from pre-order levels.  
Declining import volumes after, and appa rently resulting from, imposition of 
antidumping order indicate that exporters w ould need to dump to sell at pre-order 
levels.60  (Footnote omitted, emphasis added) 
7.90 We note, and parties do not disagree, that, in addition to its finding regarding likely past 
dumping, the USDOC relied on its volume analysis from the original sunset review as the basis of its 
new sunset determination.  The issue before us here is whether the volume analysis used by the 
USDOC in its Section 129 Determination – the basis of an issue that was raised and argued in the 
original proceedings, but on which the panel did not make a finding – is part of the measure taken to 
comply by the United States and is therefore properly before us. 
7.91 We note that the United States identifies the m easure taken to comply as the new analysis 
carried out by the USDOC in these Section 129 proceedings.61  According to the United States, since 
the volume analysis was incorporated by reference,  without any change, and the original panel made 
no findings with respect to this analysis, it is not pa rt of the measure taken to comply.  We recall that 
the function of a compliance panel under Article 21.5 of the DSU is to assess the existence or WTO-
consistency of measures taken by a Member to co mply with the DSB recommendations and rulings.  
Thus, as a compliance panel, we base our assessment on the measure taken to comply with the DSB recommendations and rulings.
62  The United States describes the m easure taken to comply with the 
recommendations and rulings of the DSB in a certai n manner.  We do not consider, however, that we 
are bound by such description.  In compliance proceedi ngs under Article 21.5 of the DSU, it is for the 
Panel, and not the parties to the dispute, to dete rmine what constitutes the measure taken to comply.63  
As the United States itself acknowledges64, the text of the Section 129 Determination at issue makes it 
clear that one of the two main underpinnings of  the USDOC's order-wide likelihood determination 
was the volume analysis carried over from the origin al sunset review.  The USDOC based its order-
wide determination on its finding  regarding likely past dumping as well as the volume analysis from 
the original sunset review.  As such, we consider the volume analysis from the original sunset review 
to have become an integral part of the Section 129 Determination.  In our view, therefore, the volume 
analysis from the original sunset review is part of the measure taken to comply by the United States 
and hence is properly before  us in these proceedings. 
7.92 The United States contends that because the original panel did not make any finding 
regarding the USDOC's volume analysis and the pane l's disinclination to make such a finding was not 
                                                      
59 Section 129 Determination (Exhibit ARG-16 at 6). 
60 Section 129 Determination (Exhibit ARG-16 at 11). 
61 Response of the United States to Question 17(b) from the Panel, para. 76. 
62 Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products – 
Recourse to Article 21.5 of the DSU by Malaysia  ("US – Shrimp (Article 21.5 – Malaysia) "), WT/DS58/AB/RW, 
adopted 21 November 2001, para. 87. 
63 In this regard, we find support in 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 ("US – Softwood Lumber IV (Article 21.5 – Canada) "), WT/DS257/AB/RW, adopted 20 December 2005, 
para. 77; and in 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 ("EC – Bed Linen (Article 21.5 – 
India )"), WT/DS141/AB/RW, adopted 24 April 2003, para. 78. 
64 See, for instance, First Written Subm ission of the United States, para. 44.  WT/DS268/RW 
 Page 33 
 
 
appealed by Argentina, the latter is now precluded from raising the same claim before us in these 
compliance proceedings.  We disagree.  The fact th at a panel, in an original dispute settlement 
proceeding, did not make findings regarding certain  issues relating to the investigating authorities' 
determination that were raised a nd argued before the panel, can no t preclude a compliance panel, in 
its assessment under Article 21.5 of the DSU of the measures taken to comply with the DSB 
recommendations and rulings, from reviewing those aspects which have been incorporated by the 
authorities in the measure taken to comply. 
7.93 To support its argument, the United States cites the Appellate Body's decision in EC – Bed 
Linen (Article 21.5 – India ).  The United States argues that the issue being analogous, the reasoning of 
the Appellate Body in EC – Bed Linen (Article 21.5 – India ) is equally applicable in these 
proceedings.  We find it useful to first note the facts of that dispute and then compare them to the facts 
presented in these proceedings.  In the original pr oceedings preceding the compliance panel's decision 
in EC – Bed Linen (Art icle 21.5 – India ), India raised a claim regarding the EC investigating 
authorities' evaluation of other factors under Article  3.5 of the Anti-dumping Agreement.  The panel 
concluded that India failed to make a prima facie case and rejected the claim.  The European 
Communities, in its implementation of the DSB recommendations and rulings, did not make any 
changes to its evaluation of other factors.  Before the compliance panel, India re-raised this claim.  
The compliance panel declined to make a ruling w ith respect to a claim that was raised by the 
complaining party in the original proceedings and reject ed by the original panel.  This, in that panel's 
view, would give the complaining party a second ch ance to raise a claim which it had raised during 
the original proceedings and failed to pursue successfully.65  Furthermore, the panel, in response to 
India's assertion, noted that the original panel had not  applied judicial economy with respect to India's 
claim under Article 3.5, but had dismissed it on the grounds that India had failed to make a prima 
facie  case.66 
7.94 On appeal by India, the Appellate Body agr eed with the compliance panel and opined that 
India could not re-raise, in DSU Article 21.5 procee dings, a claim that it had raised in the original 
proceedings, which was disposed of by th e panel and not appealed by the parties.67  The Appellate 
Body recognized that in some cases, depending on the impact of the steps taken in the implementation 
of the DSB recommendations and rulings, the investig ating authorities may have to change aspects of 
their determinations which are outside the DSB recommendations and rulings.  It recognized, for 
instance, that should the EC authorities have to change their dumping determ inations in order to 
implement the DSB recommendations and ruli ngs, that new dumping determination could 
theoretically necessitate a new causality determination.68  When this is not the case, parts of the re-
determination that merely incorporate elements of the original determination would not automatically 
become an inseparable part of the measure taken to comply.69 
7.95 Turning to the facts presented in these proceedings , we recall that the original panel in these 
proceedings found that the USDOC's original sunset  determination was devoid of a sufficient factual 
basis.  It noted that the USDOC based its sunset determination on two findings, i.e. that dumping 
continued over the life of the measure and that import volumes declined following the imposition of the measure.  The original panel then found that th e first finding was not supported by the facts and, 
without addressing Argentina's claim regarding the USDOC's volume analysis, found the 
                                                     
 
65 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 ("EC – Bed Linen (Article 21.5 – India) "), 
WT/DS141/RW, adopted 24 April 2003, modified by Appellate Body Report, para. 6.43. 
66 Id., para. 6.44. 
67 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 ("EC – Bed Linen (Article 21.5 – India )"), 
WT/DS141/AB/RW, adopted 24 April 2003, para. 97. 
68 Id., para. 86. 
69 Id. WT/DS268/RW  
Page 34  
 
determination to be in consistent with Article 11.3 of the Agreement.
70  We note that in this regard, the 
facts of these proceedings are signi ficantly different from those in EC – Bed Linen (Article 21.5 – 
India ).  As the United States also observes71, unlike the original panel in EC – Bed Linen (Article 21.5 
– India ), the original panel in these proceedings applied judicial economy in not addressing 
Argentina's claim regarding the USDOC's volume analysis  in the original sunset review.  It declined 
to make such a finding. 
7.96 We are therefore of the view that the facts of EC – Bed Linen (Art icle 21.5 – India ) are 
distinguishable from the case before us, and that, fo r the reasons we have already given, the USDOC's 
volume analysis forms part of the measure taken to comply in these proceedings. 
7.97 In order to implement the DSB recommendations  and rulings, the USDOC made the Section 
129 Determination at issue in which it incorporated  its volume analysis from the original sunset 
review.  In these DSU Article 21.5 proceedings, Argentina argues that the USDOC's Section 129 
Determination lacks a sufficient factual basis.  In  this regard, Argentina challenges both the USDOC's 
likely past dumping determination and its volume an alysis incorporated from the original sunset 
review.  We therefore have to assess whether the Section 129 Determination is premised on a 
sufficient factual basis with respect to the USDOC's volume analysis.   
(iii) Was the USDOC's Volume Analysis Consiste nt With Article 11.3 of the Agreement? 
7.98 We cited above ( supra , para. 7.34) the relevant legal obligation that applies to the 
investigating authorities' determination in sunset  reviews under Article 11.3 of the Agreement.  
Turning to the substance of Argentina's claim, we note that the part of the original sunset review 
dealing with the volume of imports, incorporated in to the USDOC's Section 129 Determination, states 
that the volume of dumped imports declined following the imposition of the anti-dumping measure at 
issue.  The Section 129 Determination reads in relevant part: 
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 antidumping order.  In the original sunset review, we found that after 
imposition of the order, import volumes signi ficantly decreased from pre-order levels.  
Declining import volumes after, and appa rently resulting from, imposition of 
antidumping order indicate that exporters w ould need to dump to sell at pre-order 
levels.72  (Footnote omitted) 
7.99 In the USDOC's Section 129 Determination, no explanation has been provided as to the 
possible causes of this decline, except the statem ent that "[d]eclining import volumes after, and 
apparently resulting from, imposition of antidumping order indicate that exporters would need to 
dump to sell at pre-order levels".  This statement seems to suggest that declining volume of imports 
following the imposition of the measure necessarily  means that exporters will dump again if the 
measure is revoked.  We consider, however, that there may be other possible explanations for such 
decline, depending on the circumstances of each review .  We note that the issue of the relevance of a 
decline in the volume of dumped imports follo wing the imposition of an anti-dumping measure was 
raised before the Appellate Body on more than one occasion.  In US – Corrosion-Resistant Steel 
Sunset Review , the Appellate Body opined: 
                                                      
70 Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular 
Goods from Argentina  ("US – Oil Country Tubular Goods Sunset Reviews "), WT/DS268/R and Corr.1, adopted 
17 December 2004, modified by Appellate Body Report, WT/DS268/AB/R, para. 7.221. 
71 Response of the United States to  Question 17(a) from the Panel. 
72 Section 129 Determination (Exhibit ARG-16 at 11).  WT/DS268/RW 
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The cessation of imports in the second scenar io and the decline in import volumes in 
the third scenario could well have been cau sed or reinforced by changes in the 
competitive conditions of the market-place or strategies of exporters, rather than by the imposition of the duty alone.  Therefore,  a case-specific analysis of the factors 
behind a cessation of imports  or a decline in import volumes (when dumping is 
eliminated) will be necessary to determin e that dumping will recur if the duty is 
terminated.73  (emphasis added) 
7.100  In US – Anti-Dumping Measures on Oil Country Tubular Goods , the Appellate Body stated: 
Such a presumption cannot be the sole basis for a determination of "recurrence" of 
dumping.  A company's strategy and ability to increase or decrease its exports to 
particular markets depend on a variety of mark et conditions, such as, in particular, the 
opportunities available in different market s and the competitive conditions in the 
market place.  Therefore, unless all relevant factors are taken into account, there may not be an objective evaluation in such c ases of the causes of the variations in import 
volumes in the importing Member's market.
74 
[T]he investigating authority has a duty to  seek out information on relevant factors 
and evaluate their probative value in order to  ensure that its determination is based 
not on presumptions, but on a sufficient factual basis.75 
7.101  In our view, the USDOC's finding regarding the decline in the volume of imports was not 
based on a thorough evaluation of the possible causes of such decline.  The decline could have 
resulted from a variety of other factors, which could theoretically indicate no likelihood of 
continuation or recurrence of dumping.  In other wo rds, it is possible that despite a decline in the 
volume of imports, there may not be likelihood of c ontinuation or recurrence of dumping.  In fact, 
Siderca, in its response to the USDOC's questionnair e, attempted to explain why the decline in the 
volume of Siderca's exports to the United States fo llowing the imposition of the measure at issue did 
not necessarily mean that Siderca could not export with the measure in place.76  The United States 
contends that Siderca's comments were weakly supported and did not explain why Siderca stopped 
shipping to the United States.77  The United States may or may not be correct in its proposition.  We 
are by no means suggesting that Siderca's argument s should have been accepted by the USDOC.  The 
fact remains, however, that the Section 129 Dete rmination fails to examine potential reasons, other 
than a likelihood of continuation or recurrence of dum ping, that could have triggered the decline in 
the volume of imports.  This is not, in our view, the kind of determination that would be made by an 
                                                      
73 Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-
Resistant Carbon Steel Flat Products from Japan  ("US – Corrosion-Resistant Steel Sunset Review "), 
WT/DS244/AB/R, adopted 9 January 2004, para. 177. 
We are cognizant that the Appellate Body's finding in this regard concerned the provisions of the US 
Sunset Policy Bulletin.  Given the similarity of the substa ntive issue, however, we consider the Appellate Body's 
reasoning relevant to support our finding regarding the USDOC's volume analysis. 
74 Appellate Body Report, United States – Anti-Dumping Measures on Oil Country Tubular Goods 
(OCTG) from Mexico , ("US – Anti-Dumping Measures on Oil Country Tubular Goods "), WT/DS282/AB/R, 
adopted 28 November 2005, para. 200. 
We are cognizant that the Appellate Body's finding in this regard concerned the provisions of the 
Sunset Policy Bulletin of US law.  Given the similarity  of the substantive issue,  however, we consider the 
Appellate Body's reasoning relevant to support our finding regarding the USDOC's volume analysis. 
75 Id., para. 201. 
We are cognizant that the Appellate Body's finding in this regard concerned the provisions of the 
Sunset Policy Bulletin of US law.  Given the similarity  of the substantive issue,  however, we consider the 
Appellate Body's reasoning relevant to support our finding regarding the USDOC's volume analysis. 
76 Siderca's Response to the USDOC's Ques tionnaire (Exhibit ARG- 15 at 7-10). 
77 Comments of the United States on Argentina's Response to Question 18(b) from the Panel. WT/DS268/RW  
Page 36  
 
unbiased and objective investigating authority.  The USDOC's determination regarding the decline in 
the volume of imports lacks a sufficient factual basis. 
4. Conclusion 
7.102  We have found above that both factual founda tions of the USDOC's order-wide likelihood 
determination with respect to the imports of OCTG from Argentina, i.e. its findings regarding likely 
past dumping and the volume of imports, lack a sufficient factual basis.  We therefore find the 
USDOC's order-wide determination to be incons istent with Article 11.3 of the Agreement. 
7.103  We note that Argentina also made an allegati on regarding the treatment by the USDOC of the 
cost data submitted by Siderca.  Having conc luded that the USDOC's order-wide likelihood 
determination was devoid of a sufficient factual basi s, hence inconsistent with Article 11.3 of the 
Agreement, we need not and do not make any finding s under Article 11.3 with regard to the treatment 
of the data submitted by Siderca. 
7.104  In its First Written Submission, Argentina cited Article 11.1 of the Agreement in addition to 
Article 11.3 in connection with its claims regardi ng the USDOC's finding of likely past dumping and 
its volume analysis.  Argentina has not, howeve r, developed any specific arguments regarding 
Article 11.1.  Considering that Argentina has not developed Article 11.1-specific arguments, we do 
not consider that Argentina has established its claim under this provision and we do not make any 
findings in this regard. 
E. 
ALLEGED VIOLATIONS OF ARTICLE 6 OF THE AGREEMENT  
1. Arguments of Parties 
(a) Argentina 
7.105  First, Argentina argues that the USDOC failed to  provide Argentine exporters with adequate 
opportunity to present evidence, inconsistently with Article 6.1 of the Agreement.  More specifically, 
Argentina asserts that the USDOC fa iled to issue supplemental questionnaires; to issue preliminary 
findings; to prepare a schedule that would allow the in terested parties to submit comments; to request 
clarification or further comments from Argentine expor ters on certain issues and to hold a hearing.  
Second, Argentina asserts that the cited inconsistenc ies with Article 6.1 also violated the general 
obligation under Article 6.2 to give interested pa rties full opportunity to defend their interests.  
Argentina also argues that failure to hold a hearing violated the specific obligation under Article 6.2.  
Third, Argentina asserts that the USDOC acted incons istently with Article 6.4 by not informing the 
Argentine exporters of the existence of certain information that it had used in its Section 129 
Determination and which was relevant to the presen tation of the Argentine exporters’ cases, until after 
that Determination was issued on 16 December 2005.  Furthermore, the USDO C violated Article 6.4 
by accepting the unsolicited comments submitted by the petitioners.  Fourth, Argentina contends that 
the USDOC violated Article 6.5.1 by failing to request the non-confidential summaries of certain 
confidential information submitted by the petitioners.  More specifically, Argentina argues that the 
non-confidential summaries were not of the kind that  would allow the Argentine exporters to have a 
reasonable understanding of the content of the confid ential information.  Fifth, Argentina contends 
that the USDOC acted inconsistently with Article 6.6 by failing to verify the accuracy of Siderca’s cost information before deciding to disregard it.  Sixth, Argentina asserts that the USDOC acted 
inconsistently with Article 6.8 of the Agreement a nd certain provisions of Annex II with regard to its 
treatment of Siderca’s and Acindar’s information.  More specifically in this respect, Argentina argues 
that the USDOC acted inconsistently with para graphs 3 and 5 of Annex II by disregarding the 
information submitted by Siderca.  It acted incons istently with paragraph 6 of Annex II by not 
informing Siderca and Acindar of the reasons for th e rejection of their information and not giving 
them an opportunity to provide further explanati ons.  Argentina also contends that the USDOC did  WT/DS268/RW 
 Page 37 
 
 
not use the most appropriate information after deci ding to disregard the information submitted by the 
Argentine exporters.  Finally, Argentina argues that the USDOC violated Article 6.9 of the Agreement 
by failing to inform the Argentine exporters of the essential facts under consideration which formed 
the basis of its Section 129 Determination.   
(b) United States 
7.106  The United States contends that, in accordance with Article 6.1 of the Agreement, all 
interested parties in these Section 129 proceedings were given ample opportuni ty to submit in writing 
the evidence they deemed relevant.  With respect to  the specific allegations raised by Argentina, the 
United States argues that Article 6.1 does not re quire supplemental questionnaires, preliminary 
determinations, hearings or the issuance of a schedul e.  The United States submits that no hearing was 
requested in the Section 129 proceedings at issue, thus no violati on of Article 6.2 occurred.  The 
United States asserts that Argentina failed to make a prima facie case under Article 6.4.  According to 
the United States, the USDOC made available to all interested parties all documents submitted by 
interested parties and obtained by the US author ities to the extent practicable, as required by 
Article 6.4.  With regard to five memoranda placed  on the file the day the Section 129 Determination 
was issued, the United States asserts that they were  placed on the file as soon as practicable.  With 
regard to Argentina's claim under Article 6.5.1, th e United States argues that  under US law, counsel 
for Argentine exporters could have access to all confid ential information submitted by other interested 
parties.  There was, therefore, no violation of Article 6.5.1.  The United States submits that, in 
response to the USDOC's request for actual costs, Siderca only provided estimated costs.  These 
estimated costs were inconsistent with the other co st information in the file, and because of this, the 
United States contends that the USDOC could not use the data.  There was, therefore, no violation of 
Article 6.6.  The United States asserts that th e USDOC did not resort to facts available under 
Article 6.8 with regard to Siderca.  The conse quence of Siderca providing estimated costs was the 
USDOC making no company-specific determination regarding the likelihood of continuation or 
recurrence of dumping by Siderca.  The USDOC's sunset determination was based on findings of 
likely dumping for Acindar and decreased volume of imports.  There was, therefore, no violation of 
Article 6.8 and Annex II of the Agreement.  The Unit ed States contends that Argentina failed to make 
a prima facie  case regarding its claim under Article 6.9. 
2. Arguments of Third Parties 
(a) Japan 
7.107  Japan submits that Article 6.2 of the Ag reement sets out an overarching due process 
requirement that has to be observed by the inves tigating authorities in investigations and sunset 
reviews.  In Japan's view, a measure that violat es the following subparagraphs of Article 6 which 
address specific aspects of this general due process requi rement would also conflict with Article 6.2.  
Japan then observes the claims  Argentina raises under Article 6 and, without taking a position 
regarding the factual underpinnings of these claims, requires the Panel to review these facts and to 
decide whether these specific paragraphs of Article 6 and therefore Article 6.2 have been violated by 
the USDOC in the proceedings at issue.  With rega rd to Argentina's claim under Article 6.2, Japan 
argues that the USDOC acted in a WTO-inconsistent way by failing to inform the interested parties 
that they had the right to request a hearing in th ese proceedings.  Japan also contends that the USDOC 
acted inconsistently with Article 6.9 by failing to identify the essential facts that established the basis 
of its final determination.   
(b) Korea 
7.108  Korea supports Argentina's claims under Articles 6.1, 6.2, 6.4, 6.5.1, 6.6, 6.8 and 6.9 of the 
Agreement.  According to Korea, all these procedural  requirements of Article 6 concern the interested WT/DS268/RW  
Page 38  
 
parties' right to fundamental due process, which w as not observed properly in the sunset review at 
issue. 
3. Evaluation by the Panel
78 
(a) Alleged Violations of Articles 6.1 and 6.2 
7.109  Argentina argues that the USDOC failed to give  the Argentine exporters an ample opportunity 
to submit evidence, inconsistently with Article 6.1 because it: 
• failed to issue supplemental questionnaires, d espite the fact that it had some questions 
about the information submitted; 
• failed to issue a preliminary re-determination; 
• failed to establish a schedule to allow interested parties to submit comments, 
including rebuttal comments, to the USDOC; 
• failed to request clarification or addi tional documentation from the responding 
parties; and 
• failed to hold a hearing.79 
7.110  Argentina also contends that because of these defects, Argentine exporters were denied the 
right to defend their interests as mentioned in Article  6.2.  Furthermore, Argentina submits that failure 
to organize a hearing violated the speci fic obligation set out in Article 6.2. 
7.111  The United States submits that the USDOC gave Argentine exporters all the procedural rights 
under Articles 6.1 and 6.2.  The United States contends  that the specific acts cited by Argentina do not 
constitute obligations for investigating authorities with in the meaning of Articles 6.1 and 6.2.  Hence, 
there has been no violation of these two pr ovisions in the proceedings at issue. 
7.112  Article 6.1 provides: 
All interested parties in an anti-dumping investigation shall be given notice of the 
information which the authorities require and ample opportunity to present in writing all evidence which they consider relevant in  respect of the investigation in question. 
7.113  Article 6.2 provides: 
Throughout the anti-dumping investigation a ll interested parties shall have a full 
opportunity for the defence of their interests.  To this end, the authorities shall, on 
request,  provide opportunities for all interested parties to meet those parties with 
adverse interests, so that opposing view s may be presented and rebuttal arguments 
offered.  Provision of such opportunities must take account of the need to preserve 
confidentiality and of the convenience to the parties.  There shall be no obligation on 
any party to attend a meeting, and failure to do so shall not be prejudicial to that 
                                                      
78 We note that Article 11.4 of the Agreement provides, in part: 
"The provisions of Article 6 regarding evidence and procedure shall apply to any review 
carried out under this Article...".    
Article 11.4 clarifies that the provisions of Article 6 of the Agreement regarding evidence and 
procedure apply in sunset reviews.  It is by virtue of this cross-reference that we  address Argentina's claims 
under Article 6 of the Agreement. 
79 First Written Submission of Argentina, para. 144.  WT/DS268/RW 
 Page 39 
 
 
party's case.  Interested parties shall also  have the right, on justification, to present 
other information orally.  (emphasis added) 
7.114  In the original proceedings in this case, th e Appellate Body pronounced its views about 
Articles 6.1 and 6.2 of the Agreement in the following way: 
These provisions set out the fundamental due process rights  to which interested 
parties are entitled in anti-dumping investiga tions and reviews.  Articles 6.1 and 6.2 
require that the opportunities afforded inter ested parties for presentation of evidence 
and defence of their interests be "ample" and "full", respectively.  In the context of these provisions, these two adjectives suggest there should be liberal opportunities
 for 
respondents to defend their interests.  Neve rtheless, we agree with the United States 
that Articles 6.1 and 6.2 do not provide for "indefinite" rights , so as to enable 
respondents to submit relevant evidence, atte nd hearings, or participate in the inquiry 
as and when they choose...80  (Footnotes omitted, emphasis added) 
7.115  Thus, these two provisions require the inv estigating authorities to allow adequate 
opportunities to interested parties for the submission of  evidence that they deem relevant for their case 
and for the defence of their interests in investiga tions and reviews, while keeping in mind that these 
rights should not preclude the authorities from concluding investigations and reviews in a timely manner, as stated in Article 6.14.  We therefore c onsider the issue in these proceedings to be whether 
or not the USDOC allowed adequate opportunities to Argentine exporters for the submission of 
evidence that they deemed rele vant for their case and for the defence of their interests. 
7.116  Turning to the specific violations alleged by Argentina, we note that, with the exception of the 
issue of a hearing, the instances cited by Argentina as violating Articles 6.1 and 6.2 seem to be rather 
vague in nature.  We do not  consider that failure to issue suppl emental questionnaires or a preliminary 
determination necessarily constitutes such a violat ion because neither Article 6.1 nor 6.2 contains 
such specific obligations.  We are cognizant that issuing supplemental questionnaires or deficiency 
letters and/or a preliminary dete rmination may be the common practice of some WTO Members, and 
may be highly commendable.  The fact, remains, how ever, that neither Article 6.1 nor 6.2 requires 
that an investigating authority do so.  Nor can a me re allegation regarding th e failure to establish a 
schedule that would allow interested parties to submit comments violate these provisions.
81  Argentina 
has not explained with sufficient clarity how the ti metable applied by the USDOC violated Article 6.1 
or 6.2. 
                                                      
80 Appellate Body Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country 
Tubular Goods from Argentina  ("US – Oil Country Tubular Goods Sunset Reviews "), WT/DS268/AB/R, adopted 
17 December 2004, paras. 241-242. 
81 In this regard, we find useful the following finding by the panel in Guatemala – Cement II : 
Article 6.1 requires investigati ng authorities to provide interested parties "ample opportunity" 
to present in writing certain evid ence.  Article 6.1 does not exp licitly require an investigating 
authority to set time limits for the submission of arguments and evidence during the final stage 
of an investigation.  Article 6.1 simply requires that interested parties shall have "ample" 
opportunity to present evidence and "full" opportunity to defend their interests.  Interested 
parties may have such opportunity without the investigating authority setting time limits for 
the submission of evidence.  In other words, these provisions impose substantive obligations, without requiring those obligations to be met thro ugh any particular form (except as provided 
for in sub-paragraphs 1 through 3 of Article 6.1).  What counts is whether, in practice, 
sufficient opportunity was provided, not whether time limits for the submission of evidence were set.  (footnote omitted) 
Panel Report, Guatemala – Definitive Anti-Dumping Measures on Grey Portland Cement from Mexico 
("Guatemala – Cement II "), WT/DS156/R, adopted 17 November 2000, para. 8.119.
 WT/DS268/RW  
Page 40  
 
7.117  Regarding the issue of not holding a hearing, we note that Article 6.2 clearly states that 
hearings have to be organized when requested .  We note Argentina's allegation that "Siderca, 
specifically asked the USDOC to provide more info rmation regarding the timing of the hearing, and 
the USDOC offered no response".
82  We asked Argentina whether th e Argentine exporters requested a 
hearing and Argentina did not respond in the affirmative.83  In the absence of a clear indication that a 
request for a hearing was made, we decline to find a violation of Article 6.2 in this regard either. 
7.118  We note Argentina's allegation that by fa iling to respond to Siderca's letter dated 
7 December 2005, the USDOC acted inconsistently with  Articles 6.1 and 6.2.  We note that this letter 
was prepared in response to the submission by the petitioners dated 30 Novemb er 2005.  In the letter, 
Siderca responded to the petitioners' allegations re garding the USDOC's likelihood determination, as 
well as providing comments on the procedural asp ects of the sunset proceedings at issue.84  T h e  
USDOC did not respond to Siderca's letter.  We note,  however, that some of the arguments raised in 
Siderca's letter were addressed in th e USDOC's Section 129 Determination.85  Given that Siderca's 
letter was placed in the file by the USDOC and discu ssed in its Section 129 Determination, we fail to 
see any violation of Article 6.1 or 6. 2 in this regard.  The very fact that Siderca sent this letter, which 
then became part of the record indicates, in our view, that the requirements of Articles 6.1 and 6.2 
were  satisfied.  Whether or not the views expressed in  this letter were given adequate consideration 
has to do with the USDOC's substantive obligatio n, i.e. the obligation to arrive at a reasoned 
conclusion on the basis of positive evidence. 
7.119  We note Argentina's argument that the US stated  before the DSU Article 21.3(c) Arbitrator in 
these proceedings that it would have to comply with  certain procedural requirements of Article 6, 
including holding a hearing, issuing supplementa l questionnaires and making preliminary rulings.  
Argentina asserts that by failing to observe thes e steps it mentioned before the Arbitrator, the 
United States failed to fulfil the requirements of tran sparency and due process of Articles 6.1 and 6.2.  
We do not consider the US statements before the Arbitrator who determined  the reasonable period of 
time for the US implementation of the DSB recommendations and rulings in these proceedings to be 
the benchmark against which the USDOC's actions have to be assessed.  The USDOC's Section 129 
Determination has to be evaluated in light of the pr ovisions of Articles 6.1 and 6.2, and that is what 
we have done. 
7.120  Finally with regard to Articles 6.1 and 6.2, we note Argentina's proposition that rather than 
opining what needs to be done by the investigati ng authorities to meet the specific requirements of 
these provisions, the Panel should inquire whether the fundamental due process right embodied in 
them has been observed.86  We agree with Argentina that, as the Appellate Body also opined 
(supra , para. 7.114), Articles 6.1 and 6.2 "set out the fundamental due process rights to which 
interested parties are entitled in anti-dumping inv estigations and reviews" (emphasis added).  This 
does not mean, however, that claims raised under these provisions may prevail without showing the 
specific instances of violation of these rights.  Arge ntina failed to show how exactly the instances it 
cited violated Articles 6.1 and 6.2.  We theref ore reject Argentina's claim under these provisions. 
(b) Alleged Violation of Article 6.4 
7.121  Argentina argues that the USDOC failed to discl ose to Argentine exporters information that 
was used by the USDOC in its Section 129 Determin ation, inconsistently with Article 6.4 of the 
Agreement.  In this context, Argentina cites five  memoranda that were prepared by the USDOC and 
                                                      
82 In its letter dated 7 December 2005, Siderca co mplained, among others, about the fact that the 
USDOC had failed to clarify the timing of any hearing.  See, Exhibit ARG-19 at 3. 
83 Response of Argentina to Question 19(b) from the Panel. 
84 See, for instance, Exhibit ARG-19 at 3. 
85 See, Section 129 Determination (ARG-16 at 4-5). 
86 See, for instance, Response of Argen tina to Question 19 from the Panel.  WT/DS268/RW 
 Page 41 
 
 
referenced in its Section 129 Determ ination, all of which were date d 16 December 2005, i.e. the date 
of the release of the Section 129 Determination.   Argentina contends that two of these five 
memoranda contained confidentia l information and the other three contained non-confidential 
information.  There was, on the record, a non-conf idential version for each of the two memoranda that 
contained confidential information.  According to  Argentina, the USDOC was required, pursuant to 
Article 6.4 of the Agreement, to inform the Arge ntine exporters of the existence of these memoranda, 
allow the exporters to see the memoranda and to prep are their cases on the basis of the information in 
these memoranda.  The United States argues that the limited amount of time the USDOC had to 
complete the sunset review at issue has to be taken into account in assessing Argentina's claim under 
Article 6.4. 
7.122  Turning to the merits of Argentina's Article 6.4 claim concerning these five memoranda87, we 
recall that Article 6.4 provides: 
The authorities shall whenever practicable  provide timely opportunities for all 
interested parties to see all information  that is relevant to the presentation of their 
cases, that is not confidential as defined in  paragraph 5, and that is used by the 
authorities in an anti-dumping investigation, and to prepare presentations on the basis 
of this information.  (emphasis added) 
7.123  Article 6.4 requires the investigating author ities to allow the interested parties in 
investigations and sunset reviews, whenev er practicable, timely opportunities to see the information  
that is relevant to the presentation of their case.  We note that in order for there to be a violation of Article 6.4, the information at issue must carry certain qualifications.  The information must be relevant 
to the presentation of the interested parties' cases, it should not be confidential as defined in 
Article 6.5, and it must be used by the inv estigating authorities in their determinations.
88 
7.124  The first of the five memoranda is "the US DOC Memorandum to file from Mark Flessner", 
dated 16 December 2005, which is c onfidential, and which contains the US investigator's reasoning 
regarding the inconsistencies found in the data submitted by Siderca.   In Exhibit ARG-21, Argentina 
submitted the public version of th is memorandum.  This one-page document contains a chart that 
seems to analyze the cost information submitted by  Siderca.  As such, this memorandum seems to 
contain the reasoning of the USDOC regarding percei ved inconsistencies in the data pertaining to 
Siderca.  As explained in para. 7.123 above, the text  of Article 6.4 makes it clear that it does not apply 
                                                      
87 In respect of the scope of Argentina's Article 6.4 claim, we note that in addition to these five 
memoranda, Argentina included a sixth memorandum in the list of the memoranda that it cited in connection 
with this claim.  See, for instance, Second Written Su bmission of Argentina, para.113.  This is "the USDOC 
Memorandum to file from Fred Baker", dated 22 November 2005, which contains confidential information.  Argentina submitted the public version of this memorand um as Exhibit ARG-18.  The first page of the public 
version of this memorandum indicates that the memorandum has three attachments: 1) the response from the 
Embassy of Argentina to the USDOC’s request for informa tion dated 14 October 2005, 2) a listing of all entries 
of the subject merchandise during the review period for the sunset review at issue, i.e. 1995- 2000, obtained 
from the US Customs and Border Protection, and 3) average unit prices for the ten product groups the USDOC 
used in its price comparison for Acindar for the review period, obtained from Preston Publishing, Inc.  Appendix 1 contains the letter from the Embassy of Argentina and Appendix 3 contains the Preston Publishing's 
price list.  Appendix 2, however, is limited to a stat ement that it is not susceptible to public summary. 
However, Argentina limited its argumentation in this regard to the five memoranda mentioned above.  
See, for instance, First Written Submission of Argentina, pa ra. 158.  Furthermore, Argentina stated that five of 
these six memoranda which we re dated 16 December 2005 fulfilled the requ irements of Article 6.4.   Response 
of Argentina to Question 21(a) from the Panel.  We therefore understand Argentina to base its claim under 
Article 6.4 exclusively on the above-mentioned five memoranda, and not on the memorandum dated 
22 November 2005.   
88 We find support for our proposition in the Appellate Body's decision in EC – Tube or Pipe Fittings .   
Appellate Body Report, European Communities – Anti-Dumping Duties on Malleable Cast Iron Tube or Pipe 
Fittings from Brazil  ("EC – Tube or Pipe Fittings "), WT/DS219/AB/R, adopted 18 August 2003, para. 142. WT/DS268/RW  
Page 42  
 
to the reasoning of the investigating authorities .  Furthermore, Article 6.4 states that the obligation it 
contains applies to information that investigati ng authorities use in making their determinations.  
Given that this memorandum only contains the USDOC's reasoning regarding Siderca's data, we 
reject Argentina's claim in this regard. 
7.125  The second memorandum is "the USDOC's Memorandum to file from Mark Flessner", dated 
16 December 2005, regarding the Preston Publishing  data on the OCTG prices in the US market.  
Argentina submitted this document, which contains  public information, in Exhibit ARG-22.  We 
observed above ( supra , footnote 87) that the memorandum submitted by Argentina in Exhibit ARG-
18 demonstrates that the USDOC placed in the file the Preston Publishing data on 22 November 2005.  
Since this memo concerns the same data, we reject  Argentina's claim with regard to this memorandum 
too. 
7.126  The third memorandum is "the USDOC Memorandum  to file from Mark Flessner", dated 
16 December 2005.  Argentina submitted the public  version of this memorandum, which contains 
confidential information, in Exhibit ARG-23.  This one-page memorandum contains the USDOC's 
reasoning regarding perceived inc onsistencies in the data submitte d by Acindar.  We recall our 
finding that the obligation under Article 6.4 does not apply to the investigating authorities' reasoning.  
Since this memorandum contains the investigatin g authorities' reasoning, we find no violation of 
Article 6.4. 
7.127  The fourth memorandum is "the USDOC's Memora ndum to file from Mark Flessner", dated 
16 December 2005.  Argentina submitted this docu ment, which contains public information, in 
Exhibit ARG-24.  It contains certain Securities and Exchange Commission filings of domestic OCTG 
producers.  We note that the USDOC referenced and used this information in its Section 129 
Determination in connection with its finding that the OCTG market was depressed.
89  T h i s  
information was not made available to the Argentin e exporters until the date of the USDOC's Section 
129 Determination, i.e. 16 December 2005.  It w as used by the USDOC and was not confidential.  
Under Article 6.4, therefore, it should have been  made available.  We note that the Argentine 
exporters were not even informed of the existenc e of this information until the day they saw the 
USDOC's Section 129 Determination.  We also not e that, apart from its general argument regarding 
the allegedly limited amount of time the USDO C had to carry out this sunset review ( infra , 
para. 7.129), the United States has not demonstrated to  us that it was not practicable for the USDOC 
to allow the Argentine exporters to see this memo randum.  We therefore find that the USDOC acted 
inconsistently with Article 6.4 by failing to ma ke this memorandum available to the Argentine 
exporters until it released its Section 129 Determination. 
7.128  The fifth memorandum is "the USDOC Memora ndum to file from Fred Baker", dated 
16 December 2005.  Argentina submitted this docum ent, which contains public information, in 
Exhibit ARG-25.  This memorandum contains sever al documents from the original sunset review, 
including a submission by Siderca and several su bmissions from the petitioners.  The United States 
argues that because these documents were taken from th e file of the original sunset review, Argentine 
exporters had access to them since th e original sunset review.  We do not consider that the availability 
of the information in the memorandum to the par ties in the original sunset review excuses the 
USDOC from its obligation under Article 6.4 for purposes of the sunset review at issue.  We interpret 
Article 6.4 to require the investigating authorities to allow interested par ties to see the information 
they use in their determinations irrespective of whet her that same information may have been used in 
a previous proceeding and may have been made availa ble to the same interest ed parties in connection 
with that past proceeding.  Article 6.4 requires th e investigating authorities to allow the interested 
parties to see the information relevant to th e presentation of their cases with respect to each 
proceeding in which the information is used by th e authorities.  We also note that, apart from its 
general argument regarding the allegedly limited am ount of time the USDOC had to carry out this 
                                                      
89 Section 129 Determination (Exhibit ARG-16 at 7).  WT/DS268/RW 
 Page 43 
 
 
sunset review ( infra , para. 7.129), the United States has not demonstrated to us that it was not 
practicable for the USDOC to allow the Argentine exporters to see this memorandum.  We therefore 
find that the USDOC acted inconsistently with Artic le 6.4 in connection with this fifth memorandum. 
7.129  The United States argues that the Panel should take into account the limited amount of time 
that the USDOC had in order to complete this sunset  review.  In other words, the Unites States asserts 
that whether or not making the relevant informatio n available to interested parties was "practicable" 
within the meaning of Article 6.4 has to be determined in light of the amount of time the USDOC had to complete the sunset review at issue.  We note that the Arbitrator gave the United States 12 months 
from 17 December 2004 for the implementation of the DSB recommendations and rulings.
90  T h e  
United States submits that most of this time was sp ent with the amendments made to the Regulations 
regarding waivers.  New Regulations became effective on 31 October 2005 and on 2 November 2005 
the sunset review at issue was initiated.  We do not agree with the United States' proposition that the 
allegedly limited amount of time the United States ha d in order to make a new sunset determination is 
a consideration to be taken into account in assessing the consistency with Article 6.4 of the 
Section 129 Determination at issue.  We agree with Argentina that the WTO obligations apply 
concurrently and cumulatively.  The fact that the United States had to spend most of the reasonable 
period of time for the amendment of its Regulations can not be an excuse for the United States' failure 
to meet its obligations under the Agreement.  We therefore reject the United States' argument. 
7.130  Finally in this regard, we note Argentina's argum ent that the USDOC also violated Article 6.4 
by accepting unsolicited comments from the petitione rs on 30 November 2005.  In response to 
questioning, Argentina submitted that the receipt  by the USDOC of unsolicited comments from the 
petitioners "further compounded" the violation of Article 6.4.91  Having already found that the 
USDOC acted inconsistently with Article 6.4, we need not and do not make any finding in connection 
with this argument. 
(c) Alleged Violation of Article 6.5.1 
7.131  Argentina submits that the USDOC acted inconsis tently with Article 6.5.1 of the Agreement 
either because it failed to require the petitione rs to submit a non-confidential summary of the 
confidential information that they submitted or because the non-confidential summary of the 
confidential information submitted by the petitione rs did not provide a reasonable understanding of 
the substance of the information.  The United States disagrees and asserts that there can be no 
violation of Article 6.5.1.  This is because Arti cle 6.5 contemplates that parties will not be allowed 
access to confidential information,  yet US law allows counsel for interested parties to access all 
confidential documents submitted during a review, ne gating the need for non-confidential summaries. 
7.132  Article 6.5.1. provides: 
The authorities shall require interested parties providing confidential information to 
furnish non-confidential summaries thereof.   These summaries shall be in sufficient 
detail to permit a reasonable understanding of the substance of the information 
submitted in confidence.  In exceptional circ umstances, such parties may indicate that 
such information is not susceptible of summa ry.  In such exceptional circumstances, a 
statement of the reasons why summarization is not possible must be provided. 
7.133  Article 6.5.1 requires investigating authorities to  ask interested parties submitting confidential 
information to also submit non-confidential vers ions thereof.  These summaries have to permit a 
reasonable understanding of the substance of th e confidential information.  In cases where the 
information is such that it can not be summarized in a non-confiden tial format, the reasons for that 
                                                      
90 WT/DS268/12. 
91 Response of Argentina to Question 22 from the Panel. WT/DS268/RW  
Page 44  
 
have to be explained by the party submitting the in formation.  We note that Article 6.5.1 strikes a 
balance between the interests of th e interested parties submitting confid ential information to have that 
confidentiality maintained during the investigation and th e interests of the rest of the interested parties 
to be reasonably informed about the substance of that information in order to be able to make 
comments on it. 
7.134  Argentina cites a submission by US Steel, a petitioner, in this regard.
92  The submission by 
US Steel reads in relevant parts: 
The Department issued a questionnaire to Acindar asking for information concerning 
Acindar's costs of production for certain OCTG products. The Department should 
compare such cost data with [ 
 
        ] .   B a s e d  o n  [   ], it is clear that Acindar [        ].  Accordingly, Petitioner 
submits that a comparison of Acindar's costs with [         ] will reveal significant 
dumping... 
... In the event that Acindar does not elect to  answer the Department's questionnaire, 
significant other information is available which shows that Acindar dumped OCTG in 
the United States during the period of review. First, during 1999 and 2000 [ 
 
 
 ]. ... In particular, World Atlas data for the pe riod show welded OCTG exports of 5,392 
NT to the United States and only 0.03 NT to third countries. [ 
 
       ] .  Fourth, Acindar's financial statements for fiscal year 1999-2000 show that the 
company recorded an operating loss of 24.4 million pesos.  [ 
          ] .  The unavoidable conclusion is that [ 
    ] .
93  (footnotes omitted) 
                                                      
92 Argentina submitted, in Exhibit ARG-28, a letter from Acindar which demonstrates that this 
company took issue with this matter in the course of the sunset review at issue.  WT/DS268/RW 
 Page 45 
 
 
7.135  We note that certain parts of the submission by US Steel have been deleted from the text and 
replaced by blank square brackets.  We presume that what is left out is confidential information.  We 
also note that no non-confidential summary of the omitted confidential information has been submitted to the USDOC, nor is there any i ndication that the USDOC requested such a non-
confidential summary.  It appears, therefore, that  the USDOC failed to ask US Steel to submit a non-
confidential summary of the confidential information le ft out of its submission.  Article 6.5.1 imposes 
an obligation on the investigating authorities to requi re the interested parties who submit confidential 
information to also submit a non-confidential summary of that information.
94  In cases where the 
information is not susceptible to summarization, th e investigating authorities have to ask the party 
submitting that information to explain the reasons  why such summarization is not possible.  The 
United States has not, however, shown to us any such  explanation by US Steel on the record of the 
sunset review at issue, nor any indication that th e USDOC required such an explanation.  It follows 
that the USDOC acted inc onsistently with its obligation under Article 6.5.1 of the Agreement to 
require US Steel to provide a non-confidential su mmary of the confidential information that it 
excluded from its submission to the USDOC, or, altern atively, to explain why the information is not 
susceptible to summarization. 
7.136  The United States contends that US Steel su mmarized the confidential information in the 
submission itself and that more de tailed summaries were not possible.95  The United States has not, 
however, shown to us where such summarization could be found in US Steel's submission.  
Furthermore, the United States has not brought to our attention any indication on the record that 
would support this assertion.  We ther efore decline to accept this argument. 
7.137  We also note the United States' argument that because US law allows counsel for parties to 
access all confidential information on the record, there was no violation of Article 6.5.1 in the sunset 
review at issue.96  The Argentine exporters could have used this option through their counsel, but they 
did not.  In response to questioning, however, the Un ited States conceded that this right is given 
exclusively to counsel and that it can not be  used by the interest ed parties themselves.97  As we noted 
above, Article 6.5.1 protects the right of the inter ested parties generally to be reasonably informed 
about the substance of the confidential informati on that may be submitted by any other interested 
party.  What matters for purposes of Article 6.5.1 is whether the interested parties themselves receive 
non-confidential summaries of the confidential inform ation submitted to the investigating authorities.  
We therefore decline to accep t the United States' argument. 
                                                                                                                                                                     
93 Exhibit ARG-27 at 8-10. 
94 In this regard, we find the following finding by the panel in Guatemala – Cement II  helpful: 
Thus, Article 6.5.1 generally obliges investigating authorities to require interested parties 
providing confidential information to furnish no n-confidential summaries thereof.  However, 
such non-confidential summaries need not be furnished when, "in exceptional circumstances", the information "is not susceptible of summary".  In such cases, "a statement of the reasons 
why summarization is not possible must be pr ovided".  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 th e 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 impos es obligations on WTO Members and their 
investigating authorities.  Accordingly, in ou r view Article 6.5.1 imposes an obligation on 
investigating authorities to require parties that indicate that information is not susceptible of summary to provide a statement of the re asons why summarization is not possible. 
Panel Report, Guatemala – Definitive Anti-Dumping Measures on Grey Portland Cement from Mexico 
("Guatemala – Cement II "), WT/DS156/R, adopted 17 November 2000, para. 8.213. 
95 First Written Submission of the United States, para. 71. 
96 First Written Submission of the United States, para. 70. 
97 Response of the United States to  Question 24 from the Panel. WT/DS268/RW  
Page 46  
 
7.138  In addition to the submission by US Steel, Ar gentina also cited another submission which 
contained comments submitted by IPSCO, whom we understand to be a nother petitioner in the 
proceedings at issue.
98  Argentina has not, however, submitted th e text of these comments.  Hence we 
do not consider that Argentina has properly established this aspect of its claim. 
7.139  Finally with regard to this claim, Argentina also argues that two memoranda prepared by the 
USDOC and referenced in the USDOC's Section 129 Determination contained brackets that failed to 
allow a reasonable understanding of thei r confidential versions.  Argentin a contends that this violates 
Article 6.5.1.  The text of Article 6.5.1 clearly st ates that it applies to the information submitted by 
interested parties, not to the documents prepared by the investigating authorities.  We therefore reject 
this aspect of Argentina's claim. 
(d) Alleged Violation of Article 6.6 
7.140  Argentina argues that the USDOC acted inconsistently with Ar ticle 6.6 of the Agreement by 
failing to first verify whether the cost data submitte d by Siderca was accurate before declining to use 
such data.  The United States asserts that it could no t satisfy itself as to the accuracy of the cost data 
submitted by Siderca because it was based on estimates.  The United States also argues that 
Article 6.6 only applies with respect to the information upon which the authorities base their 
determinations.  Since the USDOC did not use Siderc a's cost data in its determination, there was no 
violation of Article 6.6 in this case. 
7.141  Article 6.6 reads: 
Except in circumstances provided for in pa ragraph 8, the authorities shall during the 
course of an investigation satisfy themse lves as to the accuracy of the information 
supplied by interested parties upon which their findings are based. 
7.142  We note that, as the United States contends, Article  6.6 only applies to information that the 
authorities use in their determinations in an investig ation or review.  In other words, this provision 
requires the authorities to make sure that they are basing their determinations on information that has 
been found to be accurate.  In this case, there is no dispute that the USDOC did not use Siderca's cost 
information.  We therefore consider that Article  6.6 could not have been violated by the USDOC 
because of the information that it dec lined to use in its determination. 
7.143  Argentina contends that the Panel should exam ine whether the USDOC's disinclination to use 
Siderca's cost information was "reasoned and adequate".99  We do not consider this argument to be 
relevant to Argentina's claim under Article 6.6 and therefore decline to make any findings in this 
regard. 
(e) Alleged Violation of Article 6.8 
7.144  Argentina argues that the USDOC acted inc onsistently with Article 6.8 and various 
paragraphs of Annex II to the Agreement with rega rd to its treatment of the information submitted by 
Siderca and its company-specific likeli hood determination regarding Acindar. 
7.145  We recall our substantive finding ( supra , para. 7.102) regarding the USDOC's order-wide 
likelihood determination in the sunset review at i ssue.  We found that the USDOC's two findings in 
support of its order-wide determination, i.e. likel y past dumping and the volume analysis, lacked a 
                                                      
98 See, First Written Submission of Argentina, footnote 138.  Argentina also submitted, in Exhibit 
ARG-29, a letter from Siderca which demonstrates that this  company took issue with this matter in the course of 
the sunset review at issue. 
99 See, Second Written Submission of Argentina, para. 132.  WT/DS268/RW 
 Page 47 
 
 
sufficient factual basis.  We further declined to make any findings under Article 11.3 of the 
Agreement with respect to Argentina's claim regard ing the USDOC's treatment of Siderca's cost data 
(supra , para. 7.103). 
7.146  Argentina's Article 6.8 claim deals with th e factual basis for the USDOC's Section 129 
Determination, and is thus closely linked to its substantive claim regarding the factual basis for 
USDOC's order-wide likelihood determination.  Having found that the USDOC's order-wide 
likelihood determination was devoid of a sufficient fa ctual basis, hence inconsistent with Article 11.3 
of the Agreement, we consider that addressing Arge ntina's claim under Article 6.8 that challenges the 
procedure through which this determination was re ached by the USDOC on an insufficient factual 
basis would provide no value-added to the resolution of the dispute at hand.  We therefore need not 
and do not make any findings with regard to Argen tina's claims under Article 6.8 and Annex II to the 
Agreement. 
(f) Alleged Violation of Article 6.9 
7.147  Article 6.9 provides: 
The authorities shall, before a final determ ination is made, inform all interested 
parties of the essential facts under considerati on which form the basis for the decision 
whether to apply definitive measures.  Such disclosure should take place in sufficient time for the parties to defend their interests. 
7.148  We note that Article 6.9 imposes a one-time disclosure obligation on the investigating 
authorities regarding the essential facts under consider ation which would then form the basis of the 
authorities' final determination whether to apply defi nitive measures.  The text of Article 6.9 clarifies 
that this obligation applies with respect to fact s, as opposed to the reasoning of the investigating 
authorities.  Furthermore, Article 6.9 applies to essential facts and not to all facts.  Finally, we note 
that Article 6.9 applies to essential facts that form  the basis of the authorities' decision whether to 
apply definitive measures.  It follows that in order to prevail with regard to  a claim under Article 6.9, 
the complaining party has to demonstrate that the investigating authorities failed to disclose essential 
facts that established the basis of the authorities'  decision whether to apply definitive measures. 
7.149  Argentina submits that the USDOC acted inconsis tently with Article 6.9 by not disclosing to 
the Argentine exporters the essential facts that formed the basis of it s decision to continue the measure 
at issue.  In this regard, Argen tina cites the same memoranda that it referenced in connection with its 
claim under Article 6.4.  Argentina notes that tw o of these memoranda contai ned public versions of 
confidential information and they were not released  until the Section 129 Determination was issued 
on 16 December 2005.  The United States notes that  Argentina's claim takes issue with the two 
memoranda that contained public vers ions of confidential information.
100  The United States contends 
that Argentina failed to make a prima facie  case because it did not prove that the information in these 
memoranda constituted essential facts with in the meaning of Article 6.9. 
7.150  We agree with the United States' observation that Argentina's claim under Article 6.9 is 
limited to the two memoranda, dated 16 December 2005, i.e. the same date as the Section 129 
Determination at issue.101  These memoranda include the inconsistencies found by the USDOC in 
Siderca's and Acindar's cost data, submitted to th e Panel as Exhibits 21 and 23, respectively.  We 
recall our findings ( supra , paras. 7.124 and 7.126) that these memoranda contained the USDOC's 
reasoning, and not facts.  Furthermore, we note that this reasoning concerns the cost information submitted by the two Argentine companies themselves.   Given that the obligation under Article 6.9 
                                                     
 
100 Second Written Submission of the United States, para. 76. 
101 First Written Submission of Argentina para. 19 0; Second Written Submission of Argentina, 
para. 143. WT/DS268/RW  
Page 48  
 
applies to essential facts  and that the two memoranda cited by Argentina contain the USDOC's 
reasoning regarding the data submitted by the Argen tine exporters, we reject  Argentina's claim under 
Article 6.9. 
F. 
ALLEGED VIOLATION OF ARTICLE 13 OF THE AGREEMENT  
7.151  Although Argentina initially raised a claim under Article 13 of the Agreement, it 
subsequently withdrew it.102  We therefore do not address this claim. 
VIII.  CONCLUSIONS AND RECOMMENDATION  
8.1 On the basis of the above findings, we conclude that: 
(a) The United States waiver provisions under Section 751(c)(4)(B) of 
the Tariff Act, operating in conjunction with Section 751(c)(4)(A) of 
the Tariff Act and Section 351.218(d)(2) of the Regulations, remain 
inconsistent  with Article 11.3 of the Agreement, 
(b) The USDOC did not act inconsistently with Articles 11.3 and 11.4 of 
the Agreement by developing a new factual basis for its Section 129 
Determination, 
(c) The USDOC acted inconsistently  with Article 11.3 of the Agreement 
as the Section 129 Determination that dumping was likely to continue or recur lacked a sufficien t factual basis with regard to its 
analysis of both (1) likely past dumping and (2) volume, 
(d) The USDOC did not act inconsistently with Articles 6.1 and 6.2 of 
the Agreement in the sunset review at issue with regard to providing 
Argentine exporters with ample opportunity to present in writing all 
evidence which they considered rele vant and with regard to giving 
them a full opportunity for the defence of their interests, 
(e) The USDOC acted inconsistently with Article 6.4 of the Agreement 
in the sunset review at issue by  not giving the Argentine exporters 
timely opportunities to see certain information that the USDOC used 
in its Section 129 Determination, 
(f) The USDOC acted inconsistently  with Article 6.5.1 of the Agreement 
by not requiring a petitioner submitting confidential information to submit a non-confidential summary thereof, 
(g) The USDOC did not act inconsistently with Article 6.6 of the 
Agreement with regard to satisfyi ng itself as to the accuracy of the 
cost data submitted by Siderca in the sunset review at issue, 
(h) The USDOC did not act inconsistently  with the Article 6.9 obligation 
to disclose essential facts. 
8.2 Since the original DSB recommendations and ru lings in 2004 remain operative, we make no 
new recommendation.
103 
                                                      
102 Second Written Submission of Argentina, para. 147.  WT/DS268/RW 
 Page 49 
 
 
IX. REMEDY 
A. ARGUMENTS OF PARTIES  
1. Argentina 
9.1 Argentina requests that the Panel suggest th at the United States bring its measures into 
conformity with its WTO obligations by revoking the anti-dumping  order at issue.  
2. United States 
9.2 The United States disagrees with Argentina th at a suggestion by the Panel about the 
revocation of the order would be proper in these proceedings. 
B. ARGUMENTS OF THIRD PARTIES  
1. Mexico 
9.3 Mexico submits that the Panel should use its au thority under Article 19.1 of the DSU to ask 
the United States to bring its measure into conformity with its WTO obligations by revoking the duty at issue. 
C. E
VALUATION BY THE PANEL  
9.4 We note that Article 19.1 of the DSU states that WTO panels may suggest ways through 
which the Member concerned could implement their recommendations.104  In the circumstances of the 
present proceedings, however, we see no particular reason to make such a suggestion and therefore 
decline Argentina's request. 
_______________  
                                                                                                                                                                     
103 After identifying its specific claims  against the United States, Argen tina argued, at the very end of 
its request for establishment, that with regard to all the measures identified in the request, the United States also 
acted inconsistently with Articles 1 and 18.1 of th e Anti-dumping Agreement and Article XVI:4 of the WTO 
Agreement.  However, Argentina did not pursue these claims in its submissions to the Panel.  Given the consequential nature of these claims and considering th at Argentina did not pursue them in these proceedings, 
we do not consider that Argentina has established its claim under these provisions and we do not make any 
findings in this regard.  More generally, we note that in its request for establishment, Argentina cited certain 
other provisions of the Anti-dumping Agreement, such as Article 12.2, which it then did not pursue.  We 
therefore consider that Argentina has abandoned these claims. 
104 Article 19.1 of the DSU  reads: 
Where a panel or the Appellate Body concludes that a measure is inconsistent with a covered 
agreement, it shall recommend th at the Member concerned bring the measure into conformity 
with that agreement.  In addition to its recommendations, the panel or Appellate Body may 
suggest ways in which the Member concer ned could implement the recommendations. 
(footnotes omitted).