WT/DS282/R 
Page C-1 
 
 
  
 
ANNEX C 
 
 
EXECUTIVE SUMMARIES OF THE SECOND SUBMISSIONS 
OF THE PARTIES   
 
 
Contents Page 
Annex C-1 Second Written Submission of Mexico C-2 
Annex C-2 Second Written Submission of the United States C-10 
 
 
 
 
 WT/DS282/R 
Page C-2  
 
  
 
ANNEX C-1 
 
 
SECOND WRITTEN SUBM ISSION OF MEXICO 
 
 
(19 July 2004) 
 I. INTRODUCTION 
 
1. The US view that Article 11 contains few (if any) substantive obligations
1 is untenable.  With 
Articles 11.1, 11.2, and 11.3, WTO Members placed strict disciplines on the imposition of anti-dumping duties, including definitive temporal limitations.  At the heart of these provisions, and 
central to this dispute, is the obligation to te rminate anti-dumping duties:  under Article 11.2, when 
they are no longer necessary to offset dumping; and, under Article 11.3, after five years.  2. The US determinations in this case to main tain duties under Articles 11.2 and 11.3 are based 
on presumptions, inferences, speculation and conject ure and not on positive evidence.  For this 
reason, they are insufficient to invoke the limited  exception to continue an anti-dumping duty beyond 
five years under Article 11.3, and they cannot be used to evade the obligation in Article 11.2 to 
immediately terminate the duty when it is no longer necessary.  
II. THE DEPARTMENT'S SUNSET DETERMINATION 
 
A. T
HE UNITED STATES HAS FAILED TO REBUT MEXICO 'S PRIMA FACIE  CASE THAT 
DEMONSTRATES THAT US LAW ESTABLISHES A WTO-INCONSISTENT PRESUMPTION THAT 
DUMPING IS LIKELY TO CONTINUE OR RECUR  
3. The statute (19 U.S.C. § 1675a(c)(1)), the US Statement of Administrative Action ("SAA") 
(pages 889-890), and the Sunset Policy Bulletin (" SPB") (Section II.A.3), operating independently 
and together, establish a presumption that dumpi ng would be likely to continue or recur.2  T h i s  
presumption is inconsistent with Article 11.3 of the Anti-Dumping Agreement and the United States 
has failed to rebut Mexico's prima facie  case demonstrating this inconsistency. 
 4. The United States asserts that Mexico's argument relies on the assumption that the three 
scenarios outlined in the SPB "are  the only possible ones and that as a result Commerce will always 
make an affirmative finding."
3  Mexico does not argue that the three scenarios in Section II.A.3 of the 
SPB are the only possible outcomes.  Mexico argu es that, under US law, the Department treats the 
fulfilment of any one of the three scenarios as conclu sive of likely dumping – to the exclusion of other 
relevant evidence.  MEX-62 and MEX-65 demonstrate that the Department follows Section II.A.3 in 
every sunset review, and every time it finds that at  least one of the three criteria of the SPB is 
satisfied, it makes an affirmative finding of likely dumping without considering additional factors.  It 
follows, then, that Section II.A.3 instructs the Depart ment to attach decisive weight to historical 
dumping margins and declining import volumes (or cessation of imports) in every case.  
                                                     
 
1 See, e.g. , US First Submission, paras. 2, 90-91. 
2 Mexico's First Submission, paras. 87-109. 
3 US First Submission, para. 97.  WT/DS282/R 
 Page C-3 
 
 
 5. Contrary to US assertions that the US syst em provides the Department with the ability to 
consider information apart from dumping ma rgins and import volumes through the "good cause" 
provisions,4 the actual application of this provision shows that the "good cause" route has led only to 
affirmative likelihood determinations.  This is not surprising because, as MEX-62 and MEX-65 
demonstrate, the Department has never  rendered a not likely determina tion in any full or expedited 
sunset review. 
 6. The US arguments that the SPB and the Depa rtment's practice cannot be challenged must be 
rejected.  This issue has been se ttled.  The Appellate Body overruled
 the Panel's finding that the SPB 
is not a measure that is challengeable , as such, in WTO dispute settlement.5  The Appellate Body held 
that "measure" for purposes of WTO challenge is cast broadly, and includes administrative 
instruments such as the SPB.6  The Appellate Body's reasoning in Sunset Review of Steel from Japan  
similarly compels the conclusion that the Departme nt's consistent practic e may be challenged as 
such.7 
 
7. In sum, the statute, the SAA, and the SPB ar e measures that direct the Department to give 
decisive guidance to historical dumping margins and import volume declines.  Mexico's Exhibits MEX-62 and MEX-65 (which set forth the Department 's consistent practice) demonstrate that the 
Department follows the instruction of the statut e, the SAA, and the SPB in every sunset review
, and 
every time it finds that at least one of the three criteria of the SPB is satisfied, the Department makes an affirmative finding of likely dumping without considering additional factors. 
 
B. T
HE DEPARTMENT 'S LIKELIHOOD DETERMINATION IN THE SUNSET REVIEW OF OCTG FROM 
MEXICO VIOLATED ARTICLES 11.3  AND 2 OF THE ANTI-DUMPING AGREEMENT  
1. The Department Impermissibly Relied on the Margin from the Original Investigation 
 8. The positive evidence submitted by the Mexican respondents demonstrated that dumping 
would not be likely.
8  The evidence before the Department in cluded information as to why the margin 
of dumping from the original investigation was not relevant to the question of likelihood of dumping, 
as well as the results of the recently conducted administrative reviews of the anti-dumping order, which resulted in consecutive zero ma rgin (no dumping) determinations. 
 
9. The Department relied on the lower Mexican  OCTG import volume as the sole basis for 
disregarding this the positive evidence submitted by the Mexican respondents.  After doing so, the only remaining information before the Departme nt was the margin of dumping margin from the 
original investigation and the decline in volume.  The Department then mechanically relied on this 
information despite the Appellate Body's admoniti on that "a case-specific analysis of the factors 
behind a cessation of imports or a decline in im port volumes (when dumping is eliminated) will be 
necessary to determine that dumping w ill recur if the duty is terminated."
9 
 10. That the Department relied on the margin from the original investigation in this case 
necessarily follows from the design of the US system.  The statute requires that the Department "shall 
consider" (1) "the dumping margins determined in th e investigation and subse quent reviews" and (2) 
                                                     
 
4 See 19 U.S.C. § 1675a(c)(2) (MEX-24); 19 C.F.R.  §§ 351.218(d)(3)(iv) and (e)(2)(iii) (MEX-25); 
Section II.C of the SPB. 
5 Appellate Body Report, Sunset Review of Steel from Japan , paras. 94-100. 
6 Id. at paras. 82-88. 
7 Id. at para. 78, 88. 
8 See, e.g. , MEX-64 (Evidence Chart from Mexico's First Oral Statement). 
9 Appellate Body Report, Sunset Review of Steel from Japan , para. 177. WT/DS282/R 
Page C-4  
 
 the volume of imports.
10  The SAA indicates that the Department  will normally select a margin "from 
the investigation, because that is the only calculated ra te that reflects the behavior of exporters . . . 
without the discipline of an order or suspension agreement in place."11  The regulations implementing 
the statute add that:  "only under the most ex traordinary circumstances will the Secretary rely  on a . . . 
dumping margin other than those it calculated a nd published in its prio r determinations. . . ."12  The 
SPB confirms "that continued margins at an y level would lead to a finding of likelihood ."13  In fact, 
the Department's Issues and Decision Memorandum  in this case, the margin from the original 
investigation was the only  finding of dumping made by the Department.14  Mexico can find no other 
information on the record before the Department in  the sunset review showing dumping by a Mexican 
exporter.  As a result, it seems clear to Mexico th at the Department necessarily relied on this margin. 
 2. The Department Impermissibly Presumed that Declining Import Volumes 
Demonstrated That Dumping Would Be likely to Recur 
 
11. In relying solely on the decline in impor t volume as a basis to ignore the positive evidence 
submitted by the respondents, the Department ma de two assumptions, neither one of which was 
supported by positive evidence, and then linked the se two assumptions to make the likely dumping 
determination.  First, the Department inferred th at the decline in import volume alone was sufficient 
to show that the Mexican exporters could not comp ete in the United States without dumping.  Second, 
further compounding the error of the first assumption, the Department reasoned that simply because it had inferred that the exporters could not compete in the United States without dumping, they would 
likely
 dump in the United States upon revocation . 
 
3. The Department Dismissed Relevant Ev idence Demonstrating That Dumping Would 
Not Be Likely  
 12. The Department failed to consider TAMS A's arguments and the positive evidence on the 
record that, but for the severe Mexican peso devaluation of 1994, an anti-dumping duty order on Mexican OCTG would not have been imposed in the first place.  The Department calculated zero 
margins for TAMSA and Hylsa in the administrative re views; therefore, if there had been no dumping 
in the original investigation, but for the unique ci rcumstances in 1994, then dumping cannot "continue 
or recur" after revocation of the order.  The De partment also ignored that zero margins had been 
calculated for TAMSA and Hylsa in the most recent administrative reviews.  This evidence is clearly 
relevant to the Department's  likelihood determination.  
 13. The Department did not consider TAMSA's ev idence, but rather dismissed it perfunctorily.  
The Department inferred from the lower import vol umes that TAMSA could not export to the US 
market without dumping
15  Inferences are not "positive ev idence" of what is "likely." 
    
                                                     
 
10 19 U.S.C. 1675a(c)(1) (MEX-24). 
11 US Statement of Administrative Action , accompanying the Uruguay Round Agreements Act, Pub. L. 
No. 103-465, 108 Stat. 4809 (1994) at 890, reprinted in  1994 U.S.C.C.A.N. 4040 ("SAA"). 
12 19 C.F.R. § 351.218(e)(2)(i) (emphasis added) (MEX-25). 
13 Section II.A.4 (emphasis added). 
14 Issues and Decision Memorandum for the Full Sunset Review of the Anti-dumping Duty Order on Oil 
Country Tubular Goods from Mexico  (9 Mar. 2001) (final results) at 5-6 (MEX-19) ("[t]he Department 
continues to find that the margin rates from the original investigation are the appropriate rates  to report to the 
Commission. (emphasis added). . ."). 
15 Sunset Review Issues and Decision Memorandum  at 4 (MEX-19).  WT/DS282/R 
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 III. THE COMMISSION'S SUNSET DETERMINATION 
 
A. T HE COMMISSION 'S "LIKELY " STANDARD IS INCONSISTENT AS SUCH AND AS APPLIED WITH 
ARTICLE 11.3 
14. The authority must find that expiry of the duty is "likely" to lead to a continuation or 
recurrence of injury.  It is beyond doubt that "lik ely" means "probable."  Mexico demonstrated that 
the Commission argued vigorously in the NAFTA dispute involving this same sunset review  that the 
SAA precludes the Commission from applying a "proba ble" standard.  The Commission argued:  "The 
SAA explains, unambiguously, that afte r the revocation ‘[t]here may be more than one  likely 
outcome.'  SAA at 883.  The possibility of ‘more than one likely outcome' shows that Congress did 
not intend ‘likely' to mean ‘probable' or ‘more probable than not.'"16 
 15. The United States cannot undo the Commission's st atements.  At the time that it made the 
Article 11.3 injury determination in this case, the Commission admitted that it did not need to 
establish that injury was the probable result of revocation. 
 
16. Mexico is challenging the  standard
 used by the Commission both as such and as applied.  If 
the Panel finds that the Commission used the wrong standard, the Panel cannot now reassess the 
evidence on its own to make a determination as to whether the evidence would have supported a 
finding of "likely" injury.  This would be tantamount to a prohibited de novo  review.17  The Panel's 
job is not to perform the analysis the Commiss ion was obligated to perform (but which it 
affirmatively disavowed) in the first instance. 
 
B. A RTICLE 3 APPLIES TO THE LIKELIHOOD OF INJURY DETERMINATION UNDER ARTICLE 11.3 
17. The United States argues that footnote 9 "is simply a drafting device that avoids unnecessary 
repetitions . . . ." 18  The United States also confuses the issue, and makes the text much more 
complicated than it is.  The issue is not whether the  inquiry  in an original investigation is identical to 
the likelihood inquiry in a sunset review.  The issu e is whether "injury" in Articles 11.1 and 11.3 is 
different than "injury" defined by footnote 9, and whether "injury" in Articles 11.1 and 11.3 is to be 
interpreted in accordance with the provisions of Articl e 3.  That analysis must begin with the text, and 
for Mexico and all of the Third Parties, footnote 9 settles the issue.  
18. The Appellate Body found in Sunset Review of Steel from Japan  that the term "dumping" 
used in Article 2 "for the purpose of the Agreemen t" is the same "dumping" used in Article 11.3.
19  
For the same reason, the term "injury" used in Artic le 3 "under this Agreement" is the same "injury" 
used in Article 11.3.  The Appellate Body did not  find that the phrase "continuation or recurrence of" 
changes the meaning of "dumping."  The Panel cannot  find that this same phrase changes the meaning 
of "injury." 
    
                                                     
 
16 ITC Brief, Oil Country Tubular Goods from Mexi co:  Results of Five-Year Review , USA-MEX-201-
1904-06 (8 Feb. 2002) (non-proprietary version) at 43 (MEX-47). 
17 See Panel Report United States – Investigation of the International Trade Commission in Softwood 
Lumber from Canada , WT/DS277/R, adopted 26 April 2004, paras. 7.15, 7.16 (" Softwood Lumber from 
Canada "). 
18 Id. at para. 245. 
19 Appellate Body Report, Sunset Review of Steel from Japan , paras. 108-109 (emphasis removed). WT/DS282/R 
Page C-6  
 
 C. T
HE COMMISSION 'S SUNSET DETERMINATION WAS INCONSISTENT WITH ARTICLE  11.3,  3.1, 
AND 3.2 BECAUSE IT WAS NOT BASED ON POSITIVE EVIDENCE AND AN OBJECTIVE 
ASSESSMENT OF VOLUME , PRICE AND IMPACT ; THE COMMISSION 'S SUNSET 
DETERMINATION ALSO VIOLATED ARTICLES 3.4 AND 3.5 
19. The positive evidence and objective examination requirements of Article 3.1 are fundamental 
to an Article 11.3 injury finding.  The positive evidence and objective assessment requirement is also 
inherent in Article 11.3 injury determinati ons, apart from the applicability of Article 3. 
 20. In evaluating "injury" in this case, the Commission did not develop "positive evidence" 
necessary to determine that injury would likely follow from expiry.  The information gathered 
regarding volume, price, and impact did not rise to  the level of positive evidence, and an objective 
decision maker could not have conc luded that injury was "likely" based on this information.  In 
numerous instances, the Commission relied on assumpti ons and unsupported inferences.  In other 
relevant parts of the determination, the Commissi on based its conclusions on findings made during the 
original investigation. 
 
21. The United States argues based on the text of  Article 3.4 that that provision "cannot 
practicably be applied to all sunset reviews, and certa inly could not be applied to sunset reviews in the 
same systematic and comprehensive manner th at has been required in original dumping 
investigations."
20  However, that dumped imports may not be present at the time of the sunset review 
does not mean that Article 3.4 does not apply to Article 11.3 reviews.  In the context of a sunset 
review, the authority must examine the "likely" im pact of dumped imports on the domestic industry.  
Without a thorough understanding of the state of the domestic industry, the authority cannot determine whether injury would be likely to continue or recur
 in a manner consistent with Article 
11.3.  
22. The fundamental requirement of Article 3.5 is that the authority must establish a causal link 
between dumped imports and injury to the domestic industry.  This causation requirement reflects the 
requirement in Article VI of GATT 1994.  The Unit ed States fails to explain how this concept cannot 
apply in a sunset review.  D. T
HE US STATUTORY REQUIREMENTS GOVERNING THE TIME FRAME WITHIN WHICH INJURY 
WOULD BE LIKELY TO CONTINUE OR RECUR ARE INCONSISTENT , BOTH AS SUCH AND AS 
APPLIED , WITH ARTICLES 11 AND 3 OF THE ANTI-DUMPING AGREEMENT  
23. The United States argues that Article 11.3 does not specify the time frame relevant to a sunset 
inquiry, and thus, the relevant time period is within each Member's discretion.21  In this regard, the 
United States notes that "[t]he words ‘to lead to' affirmatively indicate that the Agreement 
contemplates the passage of some period of tim e between the revocation of the order and the 
continuation or recurrence of injury."22 
 24. The United States ignores the immediate context of Article 11.3.  Article 11.1 requires that 
anti-dumping measures "shall remain in force only as long as and to the extent necessary to counteract 
dumping which is causing injury."  Accordingly, it is  evident that the time frame in which injury 
would be likely to continue or recur under Article 11.3 must be as curtailed as possible to ensure that 
anti-dumping measures are maintained only as long as necessary
 to counteract injurious dumping.  
The phrase "to lead to" does not change this princi ple.  The phrase merely links the expiry or 
termination with the likely dumping and the likely injury. 
                                                      
20 US First Submission, para. 312. 
21 US First Submission, paras. 330-331. 
22 Id. at para. 330.  WT/DS282/R 
 Page C-7 
 
 
  
25. An undefined time frame is not c onsistent with the "likely" standard of Article 11.3, and even 
less so when considered in light of Article 11. 1.  US law does not define, nor has the Commission 
articulated, what constitutes "a reasonably foreseeab le time."  Furthermore, US law creates an 
impermissible "gap" which is inconsistent with Ar ticle VI of the GATT and Article 11.1 of the Anti-
Dumping Agreement.  Finally, the violation arising from the application of the law in this case is 
clear.  The Commission never even disclosed when the injury was likely to continue or recur. 
 E. T
HE COMMISSION 'S DETERMINATION TO CONDITION MEXICO 'S RIGHT TO REVOCATION OF 
THE ANTI-DUMPING DUTY ORDER AGAINST MEXICAN OCTG ON THE BEHAVIOUR OF 
EXPORTERS FROM OTHER COUNTRIES VIOLATED ARTICLES  11.3  AND 3 OF THE ANTI-
DUMPING AGREEMENT  
26. The United States misconstrues Mexico's primary cumulation argument.  Mexico does not 
argue that Article 11.3 is silent with respect to cumulation.  Mexico asserts that Article 11.3 – both 
pursuant to its terms ("duty" in the singular) and as  interpreted in its context – expressly prohibits 
cumulation. 
 27. The United States contends that "the refere nce in Article 11.3 to ‘the duty' is merely 
descriptive and is not evidence that the dr afters intended to prohibit cumulation."
23  The US argument 
is inconsistent with the position it took in Sunset Review of Steel from Japan , in which it argued that 
"the meaning of the word ‘duty' in Article 11.3 is explained in Article 9.2 of the Anti-Dumping 
Agreement , which ‘makes clear that the definitive duty is imposed on a product-specific ( i.e., order-
wide) basis, not a company-specific basis."24  The Appellate Body agreed that Article 9.2 informs the 
interpretation of "duty" in Article 11.3.25  Thus, the Appellate Body confirmed that the use of "duty" 
in the singular means that the authority must de termine whether the termination of a single anti-
dumping order  – and not multiple orders – would be likely to lead to injury. 
 
28. Assuming arguendo  that Articles 11.3 and 3.3 do not preclude cumulation in Article 11.3 
reviews, then the terms of Article 3.3 would have pr ecluded cumulation in this case.  In the event that 
the Panel finds that cumulation is not prohibited by Articles 11.3 and 3.3, then the authorities must respect the substantive standards for cumulation in Article 3.3. 
 
29. Finally, in arguing that Article 3.3 cannot a pply to Article 11.3 injury reviews, the United 
States never mentions clause (b) of Article 3.3.  More than an additional requirement under Article 
3.3, this clause re-states a basic justification fo r cumulation in any injury determination under the 
Agreement.  If the imports are not in the market together and competing against each other, what 
possible justification could exist to evaluate th e effects of the imports in a cumulative manner ? 
 
 
    
 
   
                                                     
 
23 US First Submission, para. 339. 
24 Appellate Body Report,  Sunset Review of Steel from Japan , para. 150. 
25 Id. WT/DS282/R 
Page C-8  
 
 IV. THE DEPARTMENT'S FOURTH ADMINISTRATIVE REVIEW AND 
DETERMINATION NOT TO REVOKE THE ANTI-DUMPING DUTY  
 
A. A
RTICLE 11.2  IS NOT LIMITED TO ORDER -WIDE OBLIGATIONS TO TERMINATE ANTI-
DUMPING MEASURE  
30. According to the United States, "Article  11.2 does not address, and does not require, 
termination on a company-specific basis."26  The US arguments should be rejected as they are 
inconsistent with: (1) the text of Article 11.2; (2 ) the United States' implementation of its Article 11.2 
obligations; and (3) the Panel Report in DRAMS from Korea . 
 
31. First, the US position is inc onsistent with the text of Artic le 11.2, which refers to "any 
interested party" and "interested parties."  These refe rences to "interested parties" and "any interested 
party" in the context of the anti-dumping review mu st be interpreted to in clude individual exporters, 
who are arguably the most interested parties in an anti-dumping review.  It is difficult to imagine why Members would have granted such rights to individua l exporters to request a review, and would have 
imposed an obligation on Members to perform such  a review, if the obligation to terminate was 
limited to an "order-wide" basis.  Equally important , the explicit reference to "interested parties" in 
Article 11.2 distinguishes that provision from Article 11. 3, which does not refer to interested parties.  
In Sunset Review of Steel from Japan , the Appellate Body noted this distinction as a basis for finding 
that Article 11.3 does not require company-specific sunset reviews.
27 
 
32. Second, the US regulations that implemen t the US Article 11.2 obligation undermine the 
US Position.  The United States indicates that sectio n 351.222(g),  "The changed circumstance review 
most directly implements US obligations under Ar ticle 11.2 and can be conduc ted on an order-wide or 
a company-specific basis."28  However, the United States has never revoked an anti-dumping duty 
under Section 351.222(g) based on a substantive anal ysis of whether the continued imposition of the 
duty was necessary to offset dumping .   Section 351.222(g) is chiefly a mechanism for revocation 
where the US industry is no longer interested in the continuation of the anti-dumping order, not a 
means through which the Department examines the s ubstantive standard of Article 11.2 – whether 
continued imposition of the duty is necessary to offset dumping. 
 33. The United States indicates that "Section 351.222(b)(1) provides a second option for an 
individual company to request revocation  on an order-wide basis, so long as all exporters and 
producers covered at the time of the revocation have not dumped for at least three consecutive 
years."29  However, Section 351.222(e)(1) unambiguously limits the ability of an individual company 
to request revocation only as it pertains to itself :  "an exporter or producer may request in writing that 
the Secretary revoke an order or terminate a susp ended investigation under paragraph (b) of this 
section with regard to that person  if the person submits with the re quest" the requisite certifications 
pertaining to its export behaviour.30 
 34. Finally, the Panel Report in DRAMS from Korea  makes the US position untenable.  The Panel 
Report in DRAMs from Korea , and the US implementation of the DSB's rulings and recommendations 
in the wake of that report, leave no doubt that Article 11.2 creates obligations to terminate anti-
dumping orders on a company-specific basis.  Followi ng the adverse ruling of the Panel, the United 
States clarified to its trading partners the nature of the changes it was making to the US regulation 
                                                     
 
26 US First Submission, para. 148. 
27 Appellate Body Report, Sunset Review of Steel from Japan , para. 149. 
28 Opening Statement of the United States at the Firs t Meeting of the Panel With the Parties, May 25, 
2004, para. 3. 
29 US Answers to Questions from Mexico, para. 36 (emphasis added). 
30 19 C.F.R. § 351.222(e)(1) (emphasis added) (MEX-12).  WT/DS282/R 
 Page C-9 
 
 
 implementing its Article 11.2 obligations.  The United States provided notice that the company-
specific revocation procedure outlined in 19 C.F.R. §  351.222(b) was the way in which the United 
States implements its obligations under Article 11. 2 to determine whether the continued imposition of 
the duty is necessary to offset dumping.  The Un ited States cannot deny these statements and its 
practice on implementing its Article 11.2 obligations now for the expediency of defending against the 
Article 11.2 claim brought by Mexico. 
 B. T
HE DEPARTMENT 'S DETERMINATION NOT TO REVOKE THE ANTI-DUMPING DUTY ORDER 
ON OCTG FROM MEXICO VIOLATED ARTICLE 11.2 
35. The Department violated Article 11.2 of the Anti-Dumping Agreement because the 
Department did not terminate the anti-dumping duty on OCTG from Mexico immediately upon the 
demonstration that the continued imposition of the duty was not necessary to offset dumping.  36. The Department's determination not to revoke the anti-dumping duty on OCTG from Mexico 
was not based on positive evidence that the continue d imposition of the duty was necessary to offset 
dumping.  With respect to Hylsa, the Department 's determination not to revoke the duty violated 
Articles 11.2, 2.4, and 2.4.2 of the Anti-Dumping Ag reement because the Department failed to make a 
fair comparison between export price and normal value, by "zeroing" Hylsa's negative margins.  By relying on the positive margin that resulted from th is unlawful methodology as justification for not 
revoking the anti-dumping duty on OCTG from Mexico w ith respect to Hylsa, the Department did not 
determine whether the duty was necessary to offset dumping. 
 
37. With respect to TAMSA, the Department's de termination not to revoke violated Article 11.2 
of the Anti-Dumping Agreement because the Depart ment:  (i) applied a standard which required a 
demonstration that dumping was "not likely" in the future;  (ii) arbitrarily imposed a "commercial 
quantities" requirement test which is  inconsistent with, and has no b asis in, Article 11.2;  and (iii) 
ignored positive evidence that demonstrated th at the measure was no l onger necessary to offset 
dumping.   38. The Department violated Article X:2 of  the GATT 1994 because the Department imposed 
conditions on TAMSA for the termination of th e anti-dumping duty in advance of the official 
publication of such conditions. 
 
V. MEXICO'S REQUEST UNDER DSU ARTICLE 19.1 
 
39. Even assuming that the United States could even  cure many of the violations of the Anti-
Dumping Agreement through another sunset review, there would be no way for the United States to 
comply with the fundamental time-bound obligations of Article 11.2 to terminate immediately upon a 
showing that the duty is no longer necessary to offset  dumping, or of Article 11.3 to terminate after 
five years in the absence of the requisite likelihoo d findings.  The violations of Article 11.2 and 11.3 
in this case cannot be cured retroactively.  Th erefore, the only way to bring the United States 
measures into conformity with the Anti-Dumpi ng Agreement would be through the immediate 
termination of the order. 
 
VI. CONCLUSION 
 
40. Mexico refers the Panel to specific requests it made of the Panel in paragraphs 375 through 
381 of Mexico's First Submission. WT/DS282/R 
Page C-10  
 
  
 
ANNEX C-2 
 
 
SECOND WRITTEN SUBMISSION OF THE UNITED STATES 
 
 
(19 July 2004) 
 
 
 I. INTRODUCTION  
 
1. Mexico has proffered, but not substantiated, a variety of claims  regarding the sunset review of 
OCTG, as well as the fourth administrative review of TAMSA and Hylsa.  The United States more 
fully rebutted these claims in its first written submi ssion, the first meeting, and answers to questions.  
In this submission, the United States will  limit its remarks to exposing further several basic flaws in 
Mexico's arguments.    
II. ISSUES RELATING TO MEXICO'S SUNSET REVIEW CLAIMS  
 
2. Mexico has advanced various claims regardi ng the US conduct of sunset reviews.  Having 
already addressed Mexico's claims in detail in its  first submission, the United States will limit its 
discussion in this submission to the most basic flaws in those claims, first with respect to Commerce's 
determination, and then with respect to the ITC's determination. 
 
A. C
OMMERCE 'S CONDUCT OF SUNSET REVIEWS  
3. Mexico has essentially argued that the Sunset Policy Bulletin  is a measure that mandates that 
Commerce accord decisive weight to dumping margins and lower import volumes.   A proper legal 
analysis of Mexico's claims, as well as a review of the evidentiary support for them, reveals that 
Mexico has not met its burden of proving those claims. 
 
1. Legal Framework for Assessing whether th e Sunset Policy Bulletin is a Measure that 
Mandates a Breach 
 
4. Mexico seeks to establish that the Sunset Policy Bulletin is a measure and mandates a breach 
by citing the results of full and expedited sunset re views.  As the United States stated at the first 
meeting of the parties, this approach is not legall y correct.  Proper legal analysis of the question of 
whether the Sunset Policy Bulletin is a measure that mandates a breach requires a two-step approach.  
First, the Panel should examine whether the Sunset Policy Bulletin is a measure.  Second, if the Sunset 
Policy Bulletin  were a measure, the Panel would then examine whether it mandates a breach. 
 
5. As the United States described in its firs t written submission and its responses to Panel 
Questions 29 and 41, the Sunset Policy Bulletin  does not "do" anything.  Regardless of the terms of 
the Sunset Policy Bulletin , or the number of times it is cited in reviews, the Sunset Policy Bulletin has 
no legal effect.  It is not a measure.  In addition, the Sunset Policy Bulletin does not mandate a breach 
of any WTO provisions.  As noted above, as a matter of US law the Sunset Policy Bulletin  cannot 
"mandate" that Commerce do anything.  It certainly cannot mandate a breach.  
  WT/DS282/R 
 Page C-11 
 
 
 2. Mexico Fails to Substantiate its Claim that the Sunset Policy Bulletin Mandates that 
Commerce Give "Decisive Weight" to Dump ing Margins and Import Volumes When 
Making the Likelihood of Dumping Determination in a Sunset Review 
 
6. Mexico offers its Exhibit MEX-62 as "evidence" that the Sunset Policy Bulletin mandates an 
affirmative likelihood determination whenever th ere is evidence of dumping margins and depressed 
import volumes, to the exclusion of any other ev idence, in a sunset review.  As a matter of 
US municipal law – that is, as a matter of fact – this is simply incorrect.  A document like the Sunset 
Policy Bulletin which does nothing more than explain to the public Commerce's thinking with regard 
to a variety of issues does not become binding simp ly because Mexico submits a misleading statistical 
analysis of past results in sunset reviews.  Th e meaning of the Sunset Policy Bulletin can only be 
determined by examining US law, and Mexico has faile d to explain how its statistical analysis is part 
of, or changes, US municipal law.  7. Exhibit MEX-62 demonstrates that Comme rce made reasoned and reasonable likelihood 
determinations in each of the sunset reviews in  the exhibit and has provided an explanation on each 
affirmative determination.  To set the record st raight, there was not an affirmative finding in "all 
sunset reviews."  Mexico would have the Panel co me away with the impression that Commerce made 
an affirmative finding in every sunset review; but that is not the case.  8. Therefore, Mexico's claim concerns a subset of  sunset reviews.  Mexico's assertion in this 
dispute is that the 227 cases in Exhibit MEX-62 ar e evidence that Commerce makes an affirmative 
likelihood determination in every review simp ly because dumping margins or depressed import 
volumes are present and
 the Sunset Policy Bulletin "mandates" that Commerce so find without 
reviewing other evidence.  Exhibit MEX-62 does nothing of the sort.  
9. The question is whether the results in the 227 reviews in question are "mandated" by the 
Sunset Policy Bulletin.   Mexico appears to assert that the fa ct that no respondent has been able to 
overcome the so-called "decisive weight" of dump ing margins and depressed import volumes, as 
described
 in the Sunset Policy Bulletin , proves that the Sunset Policy Bulletin mandates  an affirmative 
likelihood finding in every case.  This is nothing more than circular reasoning.   
10. Even assuming arguendo  that the Sunset Policy Bulletin  could mandate results, Exhibit MEX-
62 does not prove that the Sunset Policy Bulletin  is what generated the results in question.  The Sunset 
Policy Bulletin  merely reflects logical principles.  For ex ample, if dumping continued over the life of 
the order, there is reason to be concerned that dumping will continue once the discipline of the order 
is removed.  The Appellate Body agrees.
1  Therefore, if dumping continues over the life of the order, 
and Commerce concludes that continuation or recurre nce of dumping is likely, then Commerce has so 
concluded because of logic – not the Sunset Policy Bulletin .2 
 11. A closer examination of the reviews in Exhibit MEX-62 reveals that Mexico's characterization of the 227 reviews is erroneous.  In sum, a review of Exhibit MEX-62 reveals the 
following: 
                                                     
 
1 See United-States Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat 
Products from Japan,  WT/DS244/AB/R, adopted 9 January 2004  ("Japan Sunset AB") , para. 177. 
2 We also note that, with regard to Mexico's cl aim that Exhibit MEX-62 proves that Commerce has 
never made an affirmative sunset determination without referring to the guidance provided in the Sunset Policy 
Bulletin , this assertion is incorrect as a factual matter.  As we discussed in our answer to question 26 from the 
Panel in this case, Commerce did not rely on historical data when making the final affirmative sunset 
determination in the full sunset review of Canada-Sugar , but rather calculated a predicted future dumping 
margin based on information submitted by both the domestic and respondent interested parties.  Exhibit MEX-
62, Tab 261. WT/DS282/R 
Page C-12  
 
  
 - in almost a quarter of the reviews found in Exhibit MEX-62, the order was revoked;   - in over 80 per cent of the remaining reviews , domestic interested parties placed 
evidence on the record indicating that dumpi ng was likely to continue or recur, but 
respondents placed no evidence on the record at all;  
  - in all of these reviews, and the remaini ng ones, Commerce evaluated all the evidence 
on the record and presented a reasoned conclusion that dumping was likely to 
continue or recur. 
 
12. This is hardly evidence that, in any of tho se reviews, Commerce attached "decisive" weight to 
dumping margins and import volumes  without considering more.  
 
3. Mexico's Claim Regarding an Alle ged "Consistent Practice" is Beyond  the Terms of 
Reference of This Panel  
 
13. In Question 12, the Panel specifically asked Mexico to identify "where, in the request for 
establishment," Mexico set forth its claim regard ing Commerce's alleged "c onsistent practice."  
Mexico responded by citing a section that fails to re ference this allegedly consistent "practice."  
By contrast, Mexico did expressly refer to "practi ce" in Section D of its panel request (a claim 
concerning GATT Article X:3(a), not Article 11.3).  Thus, when Mexico wished to include a claim 
concerning practice in its panel request, it knew how to  do so.  With respect to a claim in connection 
with Article 11.3, it did not do so.  The Panel s hould therefore reject Mexico's claim as not being 
within the terms of reference of this dispute.  
14. In any event, Mexico's claim – though beyond the terms of reference – is also without merit.  
Commerce "practice" is not a measure; it is no more than short-hand to refer to recent Commerce precedent.  As the panel in India Steel Plate  concluded, Commerce "practice" is not within the scope 
of measures that may be challenged under Article  18.4 of the AD Agreement, and mere repetition 
cannot turn such a "practice" into a procedure and thus a measure.
3  In particular, repetition does not 
mean that Commerce's past applications of a law are binding as something called "practice."  
 
B. I SSUES RELATING TO THE LIKELIHOOD OF CONTINUATION OR RECURRENCE OF INJURY IN A 
SUNSET REVIEW  
1. Cumulation of imports from more than  one subject country is permitted under 
Article 11.3  
 
15. Mexico contends that cumulation is prohibited in sunset reviews, notwithstanding the silence 
of the Agreement on this issue.  The Appellate Bo dy has recognized that silence in an Agreement 
must have some meaning.4  Members are free to do that which is not prohibited.  In this situation, 
                                                      
3 United States – Anti-Dumping and Countervailing Measures on Steel Plate from India , WT/DS206/R, 
Panel Report adopted 29 July 2002, para. 7.22 (citation omitted).  For a more detailed discussion, see US First 
Written Submission, para. 113.  That Mexico devoted ei ght paragraphs in its answers to Pane l questions 
(paras. 46-53) without even referring to India Steel Plate  is indicative of the feeble nature of this claim.  Mexico 
instead elected to rely on question  posed by the Appellate Body in Japan Sunset  – "does the type of instrument 
itself – be it a law, regulation, procedure, practice, or something else – govern whether it may be subject to WTO dispute settlement?"  Nowhere did the Appellate Body conclude that Commerce's "practice" may be 
challenged. 
4 United States – Countervailing Duties on Certain Corrosion-Resistant Carbon Steel Flat Products 
From Germany , WT/DS213/AB/R, Appellate Body Report adopted 19 Dec. 2002 ( "German Sunset "), paras. 64-
65.  WT/DS282/R 
 Page C-13 
 
 
 where nothing in the text of the AD Agreement prohi bits cumulation and Article 11.3 is silent on the 
subject, the only logical conclusion is  that cumulation is permitted.   
 16. Mexico attempts to pin its argument on the use of the word duty
 rather than duties  in 
Article 11.3, as well as in Articles 11.1 and 11.2.  Reliance on the reference to the singular word 
"duty" ignores that Article VI:6 of GATT 1994, in requiring an injury evaluation for purposes of an 
original investigation, likewise refers to the levying of an anti-dumping (or countervailing) duty .  
Cumulation in anti-dumping investigations was wi despread among GATT contracting parties under 
Article VI, even prior to the adoption of Article s 3.3 and 11.3 of the AD Agreement in the Uruguay 
Round.5  Mexico has not disputed this point.  
 
2. Nothing in the Agreement makes the provisi ons of Article 3 applicable to Article 11.3 
sunset reviews 
 
17. As the United States has noted, there are many  examples of how Article 3 cannot be applied 
in a sunset review.6  This is a strong textual indication that  Article 3 was not intended to apply to 
sunset reviews.  Mexico has sought to counter th at argument by devising scenarios in which it might 
be possible to apply the provisions of Article 3 to a sunset review.  This argument is not persuasive.  
Article 11.3 must be interpreted in a way that allows it be applied to all sunset reviews in order to give 
it meaning and effect.  "An interpreter is not free to adopt a reading that would result in reducing 
whole clauses or paragraphs of a treaty to redundancy or inutility."7  
 
18. Mexico has not explained how the specific pr ovisions of Articles 3.2, 3.4 and 3.5 of the 
AD Agreement could be applied to all sunset reviews.  One reasonably expected reaction to the 
imposition of an anti-dumping order would be th e exit of the subject imports from the domestic 
market. Yet Mexico has not demonstrated how the i nvestigating authority could, for example, apply 
the requirements of Article 3.5 in such a situation. 
 19. Mexico's response to this obvious incongruity is to state that "WTO Members intended
 the 
sunset analysis to be difficult and rigorous" (emphasi s in original).  This answer is non-responsive.  
The fact is that the provisions simply cannot be applied – no matter how rigorous the efforts of the investigating authority.   
 
20. Mexico may be concerned that Article 11 re views do not contain specific disciplines such as 
those contained in Articles 2 and 3; but as th e Appellate Body has found, Article 2 does not per se 
apply in Article 11.3 reviews, and by analogy nor do es Article 3.  To the extent Mexico has concerns 
about the absence of specific criteria in Article 11.3,  those concerns are not properly raised in the 
context of this dispute.  As the DSU makes clear, "[r]ecommendations and rulings of the DSB cannot 
add to or diminish the rights and obligat ions provided in the covered agreements."
8 
 21. Article 5, unlike Article 11, cross-references Article 3 in several respects.  In particular, 
Article 5.2 requires that the application filed by  the domestic industry shall include evidence of, 
inter alia , "injury within the meaning of Article VI of  GATT 1994 as interpreted by this Agreement."  
This language echos that of Article  3.1 which refers to "a determination of injury for purposes of 
                                                     
 
5 See The GATT Uruguay Round, A Negotiating History (1986-1992), (T. Stewart, Ed.) at 1475-1478, 
1594, and 1598 (Exhibit US-27). 
6 See, e.g., US First Written Submission, paras. 312-313, and 319-322. 
7 United States – Section 211 Omnibus Appropriations Act of 1998 , WT/DS176/AB/R, Report of the 
Appellate Body, adopted 1 February 2002, para. 338;  United States – Standards for Reformulated and 
Conventional Gasoline , WT/DS2/AB/R, Report of the Appellate Body, adopted 20 May 1996, at 21. 
8 Article 3.2.  See also  Article 19.2 ("in their findings and recommendations, the panel and the 
Appellate Body cannot add to or diminish the rights and obligations provided in the covered agreements.") WT/DS282/R 
Page C-14  
 
 Article VI of GATT 1994," and footnote 9 of Article 3, which instructs that the term "injury," unless 
otherwise specified "shall be interpreted in accordan ce with the terms of this Agreement."  Whereas it 
is clear from the language of the Agreement that injury
 for purposes of Article 5 shall be interpreted 
in accordance with footnote 9, the Agreement provides no similar connection between the likely 
"continuation or recurrence of injury" for purposes of Article 11.3 and the injury determination 
contemplated by Article 3. 
 22. In addition, the cumulation provision containe d in Article 3 cross-refe rences Article 5 in two 
ways.  This cross-reference in an integral provisi on of Article 3 indicates that Article 3 and Article 5 
are linked.  Article 5 sets out the procedural aspec ts for the original determinations of both dumping 
and injury.
9  Article 3 provides the substantive requirement s for original injury determinations.  There 
simply is no similar linkage between Article 11.3 and Article 3.  23. Mexico suggests that there are two types of injury "investigations" – a so-called "Article 5 
injury investigation" and a so-called "Article 11.3 in jury investigation."  This argument conflicts with 
the Appellate Body's report in German Sunset , notwithstanding Mexico's assertion that its views are 
"completely consistent" with the Appellate Body's statements.   24. The Appellate Body's observation that "original investigations and sunset reviews are distinct 
processes with different purposes,"
10 is not, as Mexico suggests, less applicable to injury 
determinations than to dumping de terminations.  Article 11.3 of th e AD Agreement (and Article 21.3 
of the SCM Agreement) make no menti on or reference to an investigation  of either dumping or injury.  
With respect to both the dumping and injury dete rminations, the Agreement distinguishes between 
original investigations  and reviews that may follow imposition of an anti-dumping duty order. 
 25. That Article 11.3 contemplates basic evaluation and objectivity standards – the 
"investigatory" aspect – does not translate into a w holesale incorporation of the step-by-step Article 3 
analysis required for purposes of an original inv estigation.  Just as the Appellate Body declined to 
equate obligations of an investigatory
 nature with a wholesale incorporation of Article 2, there is 
likewise no incorporation of Article 3.  
III. ISSUES RELATING TO THE FOURTH ADMINISTRATIVE REVIEW  
 26. Mexico believes that TAMSA's and Hylsa's re quests for reviews trigger obligations under 
Article 11.2.  Mexico has also advanced vari ous arguments regarding the application of the 
commercial quantities requirement in this pa rticular review.  These arguments fail.  
 
A. O
VERVIEW OF REVOCATION OPTIONS  
27. US law provides for three separate revocati on procedures.  A company seeking revocation for 
itself ("revocation in part") during an annual ass essment review will make  a revocation request 
pursuant to section 351.222(b)(2) of the regulati ons.  TAMSA and Hylsa requested revocation 
reviews under this procedure.  If the company in question seeks revocation of the entire order during 
its annual assessment review, then the compa ny needs to request a review under section 
351.222(b)(1).  TAMSA and Hylsa did not request  revocation reviews under this procedure.  
The United States also provides respondents the opport unity to seek revocation, either in whole or in 
part, through a "changed circumstances" review .  Commerce may revoke the order in whole ( i.e., 
order-wide) or in part (company-specific).  Neither TAMSA nor Hylsa requested a "changed 
circumstances" review. 
 
                                                      
9 See German Sunset , para. 67. 
10 German Sunset , para. 87.  WT/DS282/R 
 Page C-15 
 
 
 28. In practice, a foreign producer or exporter in a country with multiple exporters normally does 
not request revocation of the order as a whole.  A company requesting revocation has a business 
incentive to request revocation with respect only to  itself, rather than the entire order, because 
revocation in part would put that company at a competitive advantage vis-à-vis other producers and 
exporters that remain subject to the order.11   
 
29. In this light, Mexico's argument that TAMSA and Hylsa were the only known Mexican 
producers when Commerce conducted the fourth revi ew, and that the company-specific revocation 
review in this proceeding was really the same as  an order-wide review under Article 11.2, rings 
hollow.  First, there were several indications throu ghout the duration of this proceeding indicating that 
TAMSA and Hylsa were not the only known producers of OCTG in Mexico.12  Second, each 
company had reason to seek revocation for itself al one and not for its competitor or competitors.  
 30. In any event, the company-specific revocation pr ocedure is of benefit to foreign exporters and 
producers.  If this revocation procedure were not available to respondents, the United States would 
still meet its Article 11.2 obligations through orde r-wide review procedures.  The fact that the 
United States provides additional procedures, which benefit foreign producers, does not mean those 
procedures are subject to Article 11.2.  To concl ude as much would create a disincentive for Members 
to provide procedures beyond those required to fulfil specific obligations.   B. A
RTICLE 11.2  REQUIRES ONLY ORDER -WIDE REVOCATION REVIEWS  
31. Mexico has argued that Article 11.2 requir es company-specific revocation procedures.  
The text of Article 11.2 does not support Mexico's view.  First, the text of Article 11.2 requires a 
review of the continuing need for "the duty."  As the Appellate Body found in connection with a 
similar phrase in Article 11.3, "the duty" refers to the anti-dumping duty order as a whole, not as 
applied to individual companies.13  Second, the text of Article 11.2 states that "any interested party," 
domestic or respondent, may request a review by submitting positive informati on to substantiate the 
need for the review.  This simply means that the requ est of one interested party is sufficient to trigger 
the review; interested parties need not collectively request the review.  
 32. Mexico has argued that the fact that the United States amended its company-specific 
revocation regulations after DRAMs from Korea  demonstrates that company-specific revocation 
reviews are subject to Article 11.2.
14  However, the question of whether company-specific revocation 
reviews are required by Article 11.2 w as not directly before the panel in DRAMs from Korea .  More 
importantly, whether company-specific reviews are subject to Article 11.2 is a question of treaty interpretation, not whether a Member emphasized a pa rticular argument in previous proceedings or 
how that Member later am ended its regulations.  
 
C. M
EXICO 'S CHARACTERIZATION OF THE COMMERCIAL QUANTITIES ELEMENT OF THE 
"THREE YEARS WITHOUT DUMPING " REQUIREMENT IS ERRONEOUS  
33. Mexico has argued that Commerce's application in OCTG from Mexico of the requirement 
that sales have been made in commercial quantiti es during the three sequential years of no dumping is 
inconsistent with Article 11.2.  As discussed a bove, Article 11.2 does not apply to company-specific 
                                                      
11 US Answers to Panel Questions, para. 2. 
12 US Answers to Mexico's Questions, para. 33. 
13 Japan Sunset AB , para. 150. 
14 19 C.F.R. § 351.222(b) (Exhibit  US-4).  This regulation was amended to include the phrase 
"otherwise necessary to offset dumping" pursuant to implementation of the recommendations and rulings 
adopted by the DSB in DRAMs from Korea . WT/DS282/R 
Page C-16  
 
 revocation procedures;  nevertheless, Commerc e's application of the commercial quantities 
requirement was not inconsistent with Article 11.2.  34. Article 11.2 states that a Member is obligated  to review the continuing need for an anti-
dumping duty upon request by an interested party "which submits positive information substantiating 
the need for a review."  It also  states that a Member shall terminate the duty if, as a result of the 
review, the authorities determine that the duty is "no longer warranted."    35. Under section 351.222(b), in determining whethe r the duty is "warranted," the United States 
evaluates whether the exporter or producer in qu estion has been able to maintain a meaningful 
presence in the US market after imposition of the orde r.  Failure to do so is evidence that the exporter 
or producer needs to dump in order to meaningfully  participate in the US market and that, absent the 
order, dumping will continue or recur.  Requiri ng the exporter or producer under section 351.222(e) to 
provide evidence that it has met the commercial quan tities requirement is thus in harmony with the 
provision of Article 11.2 requiring a Member to conduc t a review thereunder only if the exporter or 
producer provides "positive information" sufficient to warrant the review.  
 36. The commercial quantities element of Commerc e's requirements for revocation review does 
not
 mandate that an importer maintain the same pr e- and post-order import volumes.  Both Mexico 
and the Panel have noted that it is natural that , following the imposition of an anti-dumping measure, 
the volumes sold by the affected exporters would dec line.  The United States agrees that this is often 
the case, although some exporters have been able to raise their prices to avoid dumping and sell at 
well above  pre-order volumes.   
 37. More importantly, Mexico's claim that th e commercial quantities requirement "arises from a 
presumption that volume declines means [ sic] that the order is necessary" is simply wrong.  A drop in 
volumes does not necessarily result in a finding that  the commercial quantities threshold has not been 
met.  Indeed, Commerce has considered sales of 32  per cent of annualized POI sales to have been 
made in commercial quantities and revoked on that basis.   D. C
OMMERCE 'S APPLICATION OF THE COMMERCIAL QUANTITIES REQUIREMENT IN OCTG 
FROM MEXICO WAS UNBIASED , OBJECTIVE , AND BASED ON THE RECORD EVIDENCE  
38. As discussed above, Commerce's commercial quantities determinations are based on the facts 
of each case.  The information presented by TAMS A in support of its commercial quantities claim, 
however, was not persuasive.  First, TAMSA sold OCTG  to the United States, when it sold at all, in 
only token volumes  after the order was issued.  Specifically, TAMSA's year-long volumes for the 
three basis years were only 0.5 per cent, 0.6 per cent,  and 0.2 per cent of the annualized sales volumes 
present in the period of investigation.15  
 39. TAMSA made two arguments, each of wh ich Commerce considered and addressed in the 
final determination, finding them insufficient to  provide a basis for finding that TAMSA's extremely 
small sales were probative of its ability to mainta in normal market participation without dumping.
16   
 
40. Mexico bears the burden of proving that, in  fulfilling its obligations under Article 11.2, 
Commerce did not properly establish the facts or did not evaluate those facts in an unbiased and 
objective manner.  Mexico has simply demonstrated that TAMSA and Hylsa presented facts and 
                                                      
15 See Fourth Review Issues  and Decision Memorandum , at Comment 1 (Exhibit MEX-9). 
16 See Fourth Review Issues and Decision Memorandum, at Comment 1 (Exhibit MEX-9).  WT/DS282/R 
 Page C-17 
 
 
 arguments; there is no evidence that Commerce di d not evaluate those facts in an unbiased and 
objective manner.  Mexico's claim fails.17  
 E. T
HE MARGIN CALCULATION METHODOLOGY FOR HYLSA IN THE FOURTH REVIEW WAS 
CONSISTENT WITH THE AD AGREEMENT  
41. Mexico's allegations that the United Stat es calculated the dumping margin for respondent 
Hylsa in a manner inconsistent with Article 11.2 and 2 of the AD Agreement are without foundation 
and should be rejected by this Panel.    42. First, Mexico has failed to advance any claim that the United States acted in a manner 
inconsistent with Article 11.2 in its establishm ent of the margins of dumping in the fourth 
administrative review.  The calculation of margins of dumping in an administrative review under the United States' system is performed pursuant to Artic le 9.3.1 of the AD Agreement.  Mexico did not 
reference Article 9.3.1 in its request for panel establishment. 
 
43. Second, with respect to Mexico's Article 2 claims, the analysis of each export transaction in 
the fourth administrative review was based on a comparison with a normal value for identical or 
similar home market transactions.  In each case, due  allowance was made for any differences affecting 
price comparability, consistent with Article 2.4.  Mexico has offered no textual support for a finding 
that, once an anti-dumping measure is in place, Members may not impose anti-dumping duties based on the amount by which sales have been dumped.  Si milarly, Mexico has offered no textual basis for 
finding that Members must offset or reduce that  amount of dumping based on the extent to which 
distinct comparisons have involved export pri ces which were greater than normal value.   
 44. In addition, Mexico has failed to establish th at the AD Agreement contains any obligations as 
to how an administering authority is to de termine an overall rate of dumping, or even whether an 
administering authority must determine an  overall rate of dumping in a review.   
 45. Third, to the extent that Me xico seeks to rely on Article 2.4.2 for its offset claim, Mexico is 
pursuing contradictory legal arguments.  Mexico suggests that the term "investigation phase" in 
                                                     
 
17 Mexico has also tried to argue that the United States conducted a full revocation review for TAMSA 
and Hylsa, rather than an evaluation of the revocation requests. This argument is unavailing.  US regulations 
make clear that the commercial quantities requirement is  a prerequisite for a request to conduct a revocation 
review.  Section 351.222(e)(i) of the regulations provides that a company may only request revocation if it 
certifies, inter alia , that it has sold the subject merchandise in co mmercial quantities for three consecutive years.  
In verifying that certification, Commerce concluded that TAMSA had not sold the subject merchandise in commercial quantities and therefore did not qualify for a re vocation review.  With respect to Hylsa, Commerce 
noted that Hylsa had failed to obtain a de minimis margin in the fourth review.  It stands to reason that if a 
company does not meet the threshold requirement for seeking revocation, then revocation will not occur.  
Mexico's reference to the title of the notice as providing evidence that a full revocation review in fact occurred 
is sophistic.  ( See, e.g., Mexico's Written Answers to  Panel Questions, para. 11.) 
Moreover, Mexico's quotation of the Issues and Decision Memorandum is misleading.  (Mexico's 
Written Answers to Panel Questions, paras. 12-13.)  In arguing that it met the commercial quantities 
requirement, TAMSA tried to justify the significan t drop in sales.  The passage quoted from the Issues and 
Decision Memorandum simply represents Commerce's response to TAMSA's argument that it met the 
commercial quantities requirement.  This is confirmed by the paragraph following that which Mexico has 
quoted, in which Commerce stated that the "commercial quantities standard is evaluated on a case-by-case 
basis."
  (Issues and Decision Memorandum at 8 (Exhibit MEX-9)).  
Finally, the United States notes that Mexico incl udes a quotation from the Issues and Decision 
Memorandum as "evidence" that the United States con ducted a substantive review: "‘[W]e find that TAMSA 
does not qualify for revocation of the order on OCTG under 351.222(e)(1)(ii) . . . ."  Section 351.222(e) of the regulations is the commercial quantities certification requ irement and thus expressly refers to a procedural, 
rather than a substantive decision. WT/DS282/R 
Page C-18  
 
 Article 2.4.2 means any time an administer ing authority undertakes a process that is investigative in 
nature.  Mexico also interprets the term "investig ations" in Article 3.3 as limited to only original 
investigations.  Not only does Mexico fail to offe r any textual support for its disparate use of these 
terms, Mexico also fails to recognize that its interpretation of the phrase "investigation phase" in 
Article 2.4.2 would deprive that term of any meaning.