WT/DS268/R 
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ANNEX A 
 
FIRST WRITTEN SUBMISSI ONS BY THE PARTIES 
 
 
Contents Page 
Annex A-1 First Written Submission of Argentina1 A-2 
Annex A-2 First Written Submission of the United States A-87 
Annex A-3 Submission from Argentina on the Request by the United States for 
  Preliminary Rulings under Article 6.2 of the DSU A-175 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
   
 
 
 
  
 
 
 
____________ 
 1 Argentina confirmed, by its letter dated 12 December 2003, that all references made to Exhibit ARG-
56 in Argentina's first written submission, must now be understood as being made to Exhibit ARG-56 bis.  WT/DS268/R 
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 ANNEX A-1 
 
FIRST WRITTEN SUBMI SSION OF ARGENTINA 
 
15 October 2003 
 
 
TABLE OF CONTENTS 
Page  
I. INTRODUCTION ................................................................................................................... .7 
A. ANTI-DUMPING DUTIES CANNOT EXIST IN PERPETUITY ..............................................................7  
B. HISTORY OF US TRADE REMEDY PROCEEDINGS AGAINST ARGENTINE OCTG...........................8  
II. FACTUAL BACKGROUND.................................................................................................11  
A. THE ANTI -DUMPING INVESTIGATION GIVING RISE TO THE ANTI -DUMPING DUTY ORDER 
ON ARGENTINE OCTG ..............................................................................................................11  
B. SUNSET REVIEW OF OCTG  FROM ARGENTINA .........................................................................12  
III. PROCEDURAL BACKGROUND ........................................................................................15  
IV. EXECUTIVE SUMMARY OF ARGENTINA’S CLAIMS ................................................16  
A. CERTAIN US SUNSET REVIEW STATUTORY , REGULATORY , AND ADMINISTRATIVE 
PROVISIONS ARE WTO- INCONSISTENT AS SUCH .......................................................................16  
B. THE DEPARTMENT ’S SUNSET REVIEW WAS INCONSISTENT WITH US WTO   
OBLIGATIONS ............................................................................................................................17  
C. THE COMMISSION ’S SUNSET REVIEW WAS INCONSISTENT WITH US WTO  
OBLIGATIONS ............................................................................................................................18  
D. CONSEQUENTIAL VIOLATIONS OF THE ANTI-DUMPING AGREEMENT , THE GATT  1994,  
AND THE WTO  AGREEMENT .....................................................................................................19  
V. OVERVIEW OF US SUNSET REVIEW LAW...................................................................19  
A. SUNSET REVIEWS UNDER US LAW ............................................................................................19  
1. Introduction................................................................................................................... ..........19  
2. Procedures for determining the type of sunset review conducted: Expedited 
review or full review .......................................................................................................... .....20  
3. Effect of conduct of expedited sunset review........................................................................21  
4. Effect of a “waiver” determination by the Depa rtment in a sunset review.......................21  
5. Implementing US Uruguay Round obligations:  The Statement of Administrative 
Action (“SAA”)........................................................................................................................ 21 
6. The Department of Commerce Sunset Policy Bulletin .........................................................23  
7. The Department’s “likelihood” determination ....................................................................23  
8. The Commission’s “likelihood” determination....................................................................25  
VI. STANDARD OF REVIEW, BURDEN OF PROOF, AND THE SUBSTANTIVE 
WTO OBLIGATIONS AT ISSUE IN THIS DISPUTE ..... .................................................26  
A. STANDARD OF REVIEW ..............................................................................................................26   WT/DS268/R 
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 B. BURDEN OF PROOF ....................................................................................................................27  
C. SUBSTANTIVE OBLIGATIONS AT  ISSUE IN THIS DISPUTE ...........................................................28  
1. The primary obligation of Article 11.3 of the Anti-Dumping Agreement is 
termination of anti-dumping measures.................................................................................28  
2. The plain and ordinary meaning of the term “likely” in Article 11.3 is 
“probable.”  Hence, an anti-dumping dut y can be maintained only if it is 
probable that dumping and injury would continue or recur if the anti-dumping 
measure were terminated.......................................................................................................3 0 
3. The obligations in Articles 2, 3, 6 and 12 of the Anti-Dumping Agreement are 
applicable to reviews conducted under Article 11.3 ............................................................31  
VII. THE DEPARTMENT’S SUNS ET DETERMINATION AND THE 
DEPARTMENT’S DETERMINATION TO CONDUCT AN EXPEDITED 
SUNSET REVIEW WERE INCONSISTENT WITH THE ANTI-DUMPING 
AGREEMENT AND GATT 1994 .........................................................................................33  
A. THE US SUNSET REVIEW WAIVER PROVISIONS , 19 USC.  § 1675( C)(4) AND 19 C.F.R.  
§ 351.218( D)(2)( III), ARE INCONSISTENT WITH THE ANTI-DUMPING AGREEMENT :  
WHEN A RESPONDENT INTERESTED PARTY IS DEEMED TO HAVE “WAIVED ” ITS RIGHT 
TO PARTICIPATE IN A SUNSET REVIEW , THE WAIVER PROVISIONS PRECLUDE THE 
DEPARTMENT FROM CONDUCTING A “REVIEW ” AND MAKING A “DETERMINATION ” 
WHETHER EXPIRY OF THE DUTY WOULD BE LIKELY TO LEAD TO CONTINUATION OR 
RECURRENCE OF DUMPING , AND INSTEAD MANDATE A FINDING OF LIKELY DUMPING 
WITHOUT ANY ANALYSIS ..........................................................................................................35  
1. The US Sunset Review Waiver Provisions,  as such, violate the Anti-Dumping 
Agreement because they prohibit the Department from conducting a “review” 
and making a “determination” as required by Article 11.3.  Instead, these 
provisions mandate that the Department render a “likely” dumping determination without any substantive, pros pective analysis of the facts existing 
at the time of the sunset review in or der to make the determination required by 
Article 11.3................................................................................................................... ............35
 
2. The US Sunset Review Waiver Provisions a re inconsistent with Articles 11.3, 
11.4, 6.1, and 6.2 of the Anti-Dumping Agreement..............................................................38  
B. THE DEPARTMENT ’S SUNSET DETERMINATION IS INCONSISTENT WITH ARTICLE 11.3  
OF THE ANTI-DUMPING AGREEMENT BECAUSE IT WAS BASED ON AN IRREFUTABLE 
PRESUMPTION UNDER US LAW AS SUCH THAT TERMINATION OF THE ANTI -DUMPING 
MEASURE WOULD BE LIKELY TO LEAD TO CONTINUATION OR RECURRENCE OF 
DUMPING ............................................................................................................................... ....39  
1. The Department’s sunset review practi ce unequivocally demonstrates an 
irrefutable presumption that dumping would be likely to continue or recur ...................39  
2. The Statutory Provisions, 19 USC. §§ 1675(c) and 1675a(c), implementing the 
US obligation under Article 11.3, cannot be interpreted inde pendently from the 
further instruction provided by the SAA and Sunset Policy Bulletin .  Taken 
together, the US Sunset Statutor y Provisions, the SAA, and the Sunset Policy 
Bulletin  establish an irrefutable presumption that is inconsistent with Article 
11.3 of the Anti-Dumping Agreement ...................................................................................43  
C. THE DEPARTMENT ’S DETERMINATION TO CONDUCT AND ITS CONDUCT OF AN 
EXPEDITED SUNSET REVIEW OF OCTG  FROM ARGENTINA , AND ITS APPLICATION OF WT/DS268/R 
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 THE WAIVER PROVISIONS TO SIDERCA , WERE INCONSISTENT WITH ARTICLES 11, 2, 6, 
AND 12 OF THE ANTI-DUMPING AGREEMENT ...........................................................................46  
1. The Department’s determination to expedite the review of Argentina solely on 
the basis that Siderca’s shipments to the United States constituted less than 
50 per cent of the total exports from Argentina was inconsistent with the Anti-
Dumping Agreement.............................................................................................................. .46 
2. In the Expedited Sunset Review of OCTG  from Argentina, and the application 
of the Waiver Provisions to Siderca, the Department did not conduct a “review” 
or make a “determination” as required under Article 11.3 of the Anti-Dumping 
Agreement...................................................................................................................... ..........48  
3. The Department’s Expedited Sunset Review and the application of the Waiver 
Provisions to Siderca were inconsistent  with US obligations under Articles 11 
and 6.......................................................................................................................... ...............50  
4. The Department’s Determination to Expedite and the Department’s Sunset 
Determination in the Sunset Review of OC TG from Argentina were inconsistent 
with Article 12 of the Anti-Dumping Agreement.................................................................52  
D. ARTICLE 11.3  ESTABLISHES PARAMETERS FOR THE ARTICLE 11.3  OBLIGATION :  
ARTICLE 2 DISCIPLINES APPLY ; REVIEWS ARE PROSPECTIVE IN NATURE AND THUS 
REQUIRE FRESH INFORMATION ; DUMPING MUST BE “PROBABLE ;” REVIEWS ARE 
SUBJECT TO THE EVIDENTIARY REQUIREMENTS OF ARTICLE 6; AND THE LIKELY 
DETERMINATION MUST BE BASED ON POSITIVE EVIDENCE .  THE DEPARTMENT FAILED 
TO SATISFY THESE OBLIGATIONS IN ITS LIKELIHOOD DETERMINATION AND WITH 
REGARD TO THE LIKELY MARGIN REPORTED TO THE COMMISSION ..........................................53  
1. The Department’s likelihood determination is inconsistent with the Anti-
Dumping Agreement.............................................................................................................. .54 
2. The likely margin of dumping of 1.36 per cent determined by the Department 
and reported to the Commission ...........................................................................................56  
E. THE UNITED STATES FAILED TO ADMINISTER IN AN IMPARTIAL AND REASONABLE 
MANNER US ANTI -DUMPING LAWS , REGULATIONS , DECISIONS AND RULINGS WITH 
RESPECT TO THE DEPARTMENT ’S SUNSET REVIEWS OF ANTI -DUMPING DUTY ORDERS , 
IN VIOLATION OF ARTICLE X:3( A) OF THE GATT  1994............................................................57  
1. Sunset reviews of anti-dumping duty orders are subject to GATT Article X:3(a) ...........57  
2. The Department of Commerce sunset reviews violate GATT Article X:3(a)....................58  
VIII.  THE COMMISSION’S SUNSET REVIEW WAS INCONSISTENT WITH THE 
ANTI-DUMPING AGREEMENT AND THE GATT 1994 ................................................60  
A. IN THE SUNSET REVIEW OF OCTG  FROM ARGENTINA , THE COMMISSION APPLIED AN 
INCORRECT STANDARD FOR DETERMINING WHETHER TERMINATION OF THE ANTI -
DUMPING DUTY MEASURE WOULD BE “LIKELY TO LEAD TO CONTINUATION OR 
RECURRENCE OF . . . INJURY ” AND VIOLATED ARTICLES 11.3  AND 3.1 OF THE ANTI-
DUMPING AGREEMENT .............................................................................................................60  
B. THE COMMISSION FAILED TO CONDUCT AN “OBJECTIVE EXAMINATION ” OF THE 
RECORD AND FAILED TO BASE ITS DETERMINATION ON “POSITIVE EVIDENCE ” 
REGARDING WHETHER TERMINATION OF THE ANTI -DUMPING DUTY MEASURE WOULD 
BE LIKELY TO LEAD TO CONTINUATION OR RECURRENCE OF INJURY IN VIOLATION OF 
THE ANTI-DUMPING AGREEMENT ............................................................................................65  
1. The requirements of Articles 3.1 apply to re views conducted under Article 11.3 ............65   WT/DS268/R 
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 2. The Commission’s conclusions with respect to the volume of imports, price 
effects on the domestic like product, and impact of imports on the domestic 
industry demonstrate the Commission’s  failure to conduct an objective 
examination in violation of Articles 11.3, 3.1, and 3.2 of the Anti-Dumping 
Agreement.  The Commission’s findings were not based on “positive evidence” 
of likely injury in the event of termination, in violation of Articles 11.3, 3.1, and 
3.2 of the Anti-Dumping Agreement .....................................................................................67  
3. The Commission failed to evaluate all relevant economic factors and indices having a bearing on the state of the industry, including all of the factors 
enumerated in Article 3.4 of the Anti-Dumping Agreement...............................................70
 
4. The Commission failed to analyse the i ssue of whether, if the anti-dumping 
measure were revoked, the continuation or recurrence of injury to the domestic 
industry would be caused by  imports of Argentine OCTG, in violation of Article 
11.3 and 3.5 of the Anti-Dumping Agreement......................................................................73  
C. THE US STATUTORY REQUIREMENTS THAT THE COMMISSION DETERMINE WHETHER 
INJURY WOULD BE LIKELY TO CONTINUE OR RECUR “WITHIN A REASONABLY 
FORESEEABLE TIME ” (19 USC.  § 1675 A(A)(1))  AND THAT THE COMMISSION “SHALL 
CONSIDER THAT THE EFFECTS OF REVOCATION OR TERMINATION MAY NOT BE 
IMMINENT , BUT MAY MANIFEST THEMSELVES ONLY OVER A LONGER PERIOD OF 
TIME ” (19 USC.  § 1675 A(A)(5)),  ARE INCONSISTENT WITH ARTICLES 11.1,  11.3  AND 3 
OF THE ANTI-DUMPING AGREEMENT .......................................................................................74  
1. 19 USC. §§ 1675a(a)(1) and (5) are inconsistent as such with Articles 11.3 and 3 
of the Anti-Dumping Agreement ...........................................................................................74  
2. The Commission’s application of 19 USC. §§ 1675a(a)(1) and (5) in it the Sunset 
Review of OCTG from Argentina was inco nsistent with Articles 11.3 and 3 of 
the Anti-Dumping Agreement ...............................................................................................76  
D. THE COMMISSION ’S APPLICATION OF A “CUMULATIVE ” INJURY ANALYSIS IN THE 
SUNSET REVIEW OF THE ANTI -DUMPING DUTY MEASURE ON OCTG  WAS 
INCONSISTENT WITH ARTICLES 11.3  AND 3.3 OF THE ANTI-DUMPING AGREEMENT ................76  
E. ASSUMING ARGUENDO  THAT ARTICLES 3.3 AND 11.3  DO NOT PRECLUDE CUMULATION 
IN ARTICLE 11.3  REVIEWS , THEN THE TERMS OF ARTICLE 3.3 APPLY TO ANY SUCH 
CUMULATIVE ANALYSIS IN A SUNSET REVIEW .  APPLICATION OF EITHER THE DE 
MINIMIS  OR NEGLIGIBILITY REQUIREMENTS (BOTH OF WHICH MUST BE SATISFIED ) 
WOULD HAVE PREVENTED CUMULATION IN THIS CASE .  THE COMMISSION ’S 
CUMULATIVE INJURY ANALYSIS IN THE COMMISSION ’S SUNSET DETERMINATION 
FAILED TO SATISFY THE ARTICLE 3.3 REQUIREMENTS ..............................................................78  
F. THE COMMISSION ’S USE OF A CUMULATED INJURY ANALYSIS IN THIS SUNSET 
REVIEW WAS INCONSISTENT WITH ARTICLES 11.3  AND 3.1 OF THE ANTI-DUMPING 
AGREEMENT BECAUSE IT PREVENTED THE COMMISSION FROM APPLYING A “LIKELY ” 
STANDARD , AND WAS NOT BASED ON POSITIVE EVIDENCE .......................................................79  
IX. THE IDENTIFIED US MEASURES ARE INCONSISTENT WITH ARTICLE 
VI OF THE GATT 1994, ARTICLES 1 AND 18 OF THE ANTI-DUMPING 
AGREEMENT, AND ARTICLE XVI:4 OF THE WTO AGREEMENT .........................79  
A. THE US MEASURES VIOLATE THE BASIC PRINCIPLES OF THE ANTI-DUMPING 
AGREEMENT , AS PROVIDED IN ARTICLE 1 ................................................................................80  
B. THE IDENTIFIED US MEASURES , WHICH CONSTITUTE A “SPECIFIC ACTION AGAINST 
DUMPING ,” VIOLATE ARTICLE 18.1  OF THE AGREEMENT .........................................................80  WT/DS268/R 
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 C.
 THE UNITED STATES HAS FAILED TO ENSURE CONFORMITY OF ITS MEASURES WITH 
ITS WTO  OBLIGATIONS , IN VIOLATION OF ARTICLE 18.4  OF THE ANTI-DUMPING 
AGREEMENT AND ARTICLE VI:4  OF THE WTO  AGREEMENT ...................................................82  
X. CONCLUSION ..................................................................................................................... ..83 
A. US SUNSET REVIEW STATUTORY , REGULATORY , AND ADMINISTRATIVE PROVISIONS 
AS SUCH VIOLATE THE ANTI-DUMPING AGREEMENT AND THE WTO  AGREEMENT .................83  
B. THE DEPARTMENT ’S SUNSET REVIEW DETERMINATION VIOLATES THE ANTI-
DUMPING AGREEMENT AND THE GATT  1994..........................................................................83  
C. THE COMMISSION ’S SUNSET REVIEW DETERMINATION VIOLATES THE ANTI-
DUMPING AGREEMENT .............................................................................................................84  
D. CONSEQUENTIAL VIOLATIONS BY THE UNITED STATES OF THE ANTI-DUMPING 
AGREEMENT , THE GATT  1994,  AND THE WTO  AGREEMENT ..................................................84  
XI. REQUEST FOR SUGGESTIONS FROM THE PANEL ON THE MANNER IN WHICH THE UNITED STATES SH OULD IMPLEMENT THE PANEL’S 
RECOMMENDATIONS........................................................................................................85
 
  WT/DS268/R 
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 I. INTRODUCTION 
A. ANTI-DUMPING DUTIES CANNOT EXIST IN PERPETUITY  
1. This dispute raises an issue of fundamental  importance to the integrity of the multilateral 
trading system:  whether WTO Members must respec t agreed WTO disciplines regarding the use of 
anti-dumping measures. 
 2. During the Uruguay Round, the drafters of the Agreement on Implementation of Article VI of 
the General Agreement on Tariffs and Trade 1994 (“Anti-Dumping Agreement”) agreed on rules that 
struck a carefully calibrated balance between Me mbers’ rights and obligations concerning anti-
dumping measures.  Members recognized the right  of importing countries to use anti-dumping 
measures in order to counteract injurious dumping.  At the same time, they established rules to 
prevent the abuse of anti-dumping measures.  Members set out clear rules governing the imposition, 
maintenance, and termination of anti-dumping duties.   Indeed, this careful balance was a key element 
of the overall package of rights and obligations accepted by Argentina, the United States, and other 
WTO Members at the conclusion of the Round.  3. Among the most important disciplines regarding anti-dumping measures are those set out in 
Article 11 of the Anti-Dumping Agre ement.  Article 11.1 requires th at anti-dumping orders must be 
limited in three significant respects:  duration (“onl y as long as necessary”); magnitude (“only to the 
extent necessary”); and purpose (“to counteract dumping which is causing injury”). 
 4. As one panel recently noted, Article 11.1  “contains a general, unambiguous and mandatory 
requirement that anti-dumping duties ‘shall remain  in force only as long as and to the extent 
necessary’ to counteract injurious dumping.”  The pa nel added that Article 11.1  states “a general and 
overarching principle, the modalities of whic h are set forth in paragraphs 2 and 3.”
1  This general 
principle is expressed substantively throughout Article 11, including in the “sunset review” provisions of Article 11.3.  
5. The general obligation set forth in Article 11.3 – that anti-dumping measures shall be 
terminated after five years – established a clear te mporal limitation on the use of anti-dumping duties.  
Thus, the drafters of the Uruguay Round agreements accepted that anti-dumping measures could not 
exist in perpetuity but rather would be subject to strict time limitations unless specified requirements 
could be satisfied to permit their continued maintenanc e.  Specifically, Article 11.3 requires that the 
authorities conduct a review and make a determination of whether termination of an anti-dumping 
measure would be likely to lead to continuation or recurrence of dumping and injury.  Any findings of 
likely dumping and likely injury must be based on positive evidence. 
 
6. Indeed, the Appellate Body made clear that “[i]f [a WTO Member] does not conduct a sunset 
review, or, having conducted such a review, it does no t make such a positive determination, the duties 
must be terminated.”
2 
 
7. The United States has failed to respect these binding WTO disciplines on the application and 
maintenance of anti-dumping measures.  In general terms: 
 
                                                      
1 Panel Report, European Communities – Anti-Dumping duties on Malleable Cast Iron Tube or Pipe 
Fittings from Brazil , WT/DS219/R, adopted 18 August 2003, para. 7.113 (“ Pipe Fittings from Brazil ”). 
2 Appellate Body Report, United States – Countervailing Duties on Certain Corrosion-Resistant 
Carbon Steel Flat Products from Germany , WT/DS213/AB/R, adopted 19 December 2002, para. 63 (“ Steel 
from Germany ”). WT/DS268/R 
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 • The United States has not adequately implemente d the Article 11.3 disciplines into US law, 
regulations, procedures, and practices. 
 
• In the conduct of the “sunset review” of the anti-dumping measure on Oil Country Tubular 
Goods (“OCTG”) from Argentina, the United St ates acted inconsistently with mandatory 
preconditions for continuing the measure. 
 
8. The Appellate Body recently adopted a strict construction of the sunset review provisions of 
the Agreement on Subsidies and Countervailing Measur es (“SCM Agreement”), in part because of its 
stated wish not to contravene “the requirements of Article 3.2, repeated in Article 19.2 of the Uruguay 
Round Understanding on Rules and Procedures Gove rning the Settlement of Disputes (“DSU”), that 
our findings and recommendations ‘cannot add to or diminish the rights and obligations provided in 
the covered agreements’.”
3  It is important to stress that Article 3.2 of the DSU has two, equally 
important components: rights and obligations.  A prim ary right of Argentina under Article 11.3 of the 
Anti-Dumping Agreement was to have the duties  on OCTG terminated after five years.  
Concomitantly, a primary obligation of the United States under the same provision was to terminate 
the duties on OCTG from Argentina after five years.  The United States could rely on the exception to the primary obligation in Article 11.3 – continuati on of the anti-dumping measure – only with strict 
compliance with the requirements under Article  11.3 to conduct a “review” and make a 
“determination” based on “evidence” that “dumping” and “injury” would be “likely” to continue or 
recur.  As will be argued in this submission, the United States failed to satisfy the requirements for 
continuing the measure, thereby infringing Argentina’s rights. 
 
9. If the system of dispute resolution under the DSU leads to interpretations of provisions of the 
Anti-Dumping Agreements that fail to give terms their common meaning, the system will fail to 
preserve the careful balance of rights and obligations agreed by the Members.  In this case, the 
principal obligation/right created by Article 11.3 – termination of anti-dumping measures after five 
years – must not be diminished.  Otherwise, the limited exception for maintaining an anti-dumping 
measure will supersede the principal obligation of  Article 11.3.  Failure to give the terms of 
Article 11.3 their common meaning would undermine the principle of effectiv e treaty in terpretation 
recognized under the DSU and expressed by the Appellate Body in United States – Gasoline .
4 
 
10. Reduced to its core, Argentina’s position is that  the United States must respect the limits on 
the use and maintenance of anti-dumping measures, as well as the right of WTO Members to have 
anti-dumping duties terminated and not exist in perpetuity. 
 
B. HISTORY OF US TRADE REMEDY PROCEEDINGS AGAINST ARGENTINE OCTG 
11. The Argentine OCTG producer and exporter, Siderca S.A.I.C. (“Siderca”), has had a long 
experience with US trade remedy laws. This long experience provides important context for evaluating the decision by the US Government to continue the anti-dumping measure on OCTG from Argentina.  Siderca’s experience can be summarized as follows: 
 
12. 1984
:  In 1984, the US industry filed anti-dump ing and countervailing duty petitions against 
OCTG imports, including those from Argentina/Side rca.  The anti-dumping in vestigation ended in a 
finding of no injury.5  At that time, US law imposed certain requirements on the practice of 
cumulation, and the imports were not analyzed on a cumulative basis.  The negative injury 
                                                      
3 Id. at para. 91. 
4 Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline , 
WT/DS2/AB/R, adopted 20 May 1996, at 16-17, 23 (“ United States – Gasoline ”). 
5 Oil Country Tubular Goods from Argentina and Spain , 50 Fed. Reg. 21,147 (Int’l Trade Comm’n 
1985)(final injury determ.)(ARG-19).  WT/DS268/R 
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 determination, therefore, ended th e investigation without the issuance of an anti-dumping order.  
However, because of transition pr ovisions of US law implementing the Tokyo Round Agreement on 
Subsidies and Countervailing Measures, the United States did not extend an injury determination to 
Argentina for the purposes of co untervailing duty investigations.  The US Department of Commerce 
(the “Department”) determined that Siderca enjoyed a subsidy equal to 0.90 per cent,  slightly above 
the de minimis  level provided for under US law at the time  (0.5 percent).  Because the United States 
did not extend the injury test to Argentina, th e Department imposed a countervailing duty (“CVD”) 
order in the amount of 0.90 per cent on exports from Siderca.6 
 
13. 1985 :  After a change in US law regarding the cumulation provision, the US OCTG industry 
re-filed the anti-dumping case that it had lost six months earlier.  This prompted another full 
investigation of imports from producers in several countries, including Siderca.  Siderca again 
participated fully in the investigation, and this time the Department issued a decision of no dumping.7  
Accordingly, this second attempt by the US industr y to have an anti-dumping order cover Siderca’s 
exports also failed. 
 14. 1986-1994
:  During this period, the Department conducted eight, separate CVD reviews of 
the initial 0.90 per cent CVD order issued in 1984.8  Each year, Siderca and the Government of 
Argentina fully complied with the investigation.  In nearly every year, the Department concluded that 
there was no subsidy.  In one year, the Department recalculated a subsidy of 0.83 per cent, again 
slightly above the 0.5 de minimis  level.9  Despite these no or extremely small subsidy findings, 
Siderca and the Argentine Government were forced to participate in these reviews year after year, 
expending significant resources, both internal and external.  Most importantly, because of the US 
system of retrospective assessment, Siderca and the importers had to accept the commercial risk that 
the duties might be increased retroactively at any time due to administrative decisions in the CVD 
reviews.  In 1997, this process of continuous an nual reviews finally ended when the US Government 
recognized that it lacked the legal authority, retro active to 1991, to continue  collecting countervailing 
duties under orders imposed without conducting an injury test.  Therefore, the US Government 
revoked the countervailing duty orde r applicable to Argentine OCTG, ending the decade-old CVD 
case.10 
 
15. 1995 :  The US industry filed two, simultaneou s new dumping cases involving Siderca, one 
against OCTG (the one under consideration in this proceeding) and the other against small-diameter 
seamless pipe.  Siderca was not able to defend both cases simultaneously, and was forced to make a 
business judgment about which case was more signif icant commercially.  Therefore, Siderca notified 
                                                      
6 Oil Country Tubular Goods from Argentina , 49 Fed. Reg. 46,564 (Dep’t Comm. 1984)(final 
countervailing determ.)(ARG-18). 
7 Oil Country Tubular Goods from Argentina , 51 Fed. Reg. 20,240 (Dep’t Comm. 1986)(final anti-
dumping determ.)(ARG-20). 
8 Oil Country Tubular Goods from Argentina , 52 Fed. Reg. 846 (Dep’t Comm. 1987)(final 
countervailing admin. review for the period 1985)(ARG-21); Oil Country Tubular Goods from Argentina , 
56 Fed. Reg. 38,116 (Dep’t Comm. 1991)(final countervailing admin. reviews for the periods 1987 and 1988)(ARG-22); Oil Country Tubular Goods from Argentina , 56 Fed. Reg. 64,493 (Dep’t Comm. 1991)(final 
countervailing admin. review for the period 1989) (ARG-23); Oil Country Tubular Goods from Argentina , 62 
Fed. Reg. 55,589 (Dep’t Comm. 1997)(final countervailing admin. review for the period 1991)(ARG-33); Oil 
Country Tubular Goods from Argentina , 62 Fed. Reg. 24,639 (Dep’t Comm. 1997)(final countervailing admin. 
reviews and termination of admin. reviews)(ARG-30). 
9 Oil Country Tubular Goods from Argentina , 56 Fed. Reg. 38,116 (Dep’t Comm. 1991)(final 
countervailing admin. review s)(recalculating a s ubsidy of 0.93 per cent for the period 1988)(ARG-22). 
10 Oil Country Tubular Goods from Argentina , 62 Fed. Reg. 41,361 (Dep’t Comm. 1997)(revocation of 
countervailing duty order)(ARG-31). WT/DS268/R 
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 the Department that it was not able to defend the sm all-diameter seamless pipe case and, as a result, 
the Department issued a punitive anti-dump ing order in the amount of 108.13 per cent.
11 
 
16. In the OCTG case, Siderca defended itself in the anti-dumping investigation as it had done in 
1984 and 1985, and as it had done in the eight countervailing duty reviews.  The Department issued a 
negative preliminary determination; that is, it found that Siderca was not dumping OCTG in the 
United States.12  This was consistent with the previous de termination that Siderca was not engaging in 
price discrimination.  However, in the final dete rmination, the Department made an affirmative 
finding of dumping, calculating an anti-dumping margin of 1.36 per cent,  slightly above the 0.5 
per cent de minimis  level in effect at that time.13  There was no substantive change in information that 
led to the affirmative final determination compared  to the negative preliminary determination.  
Instead, the Department made a small adjustment in  its analysis of third-country sales, raising the 
price of those sales by approximately 6 per cent,   which then artificially caused a small dumping 
margin on certain of Siderca’s sales.14  The effect of this adjustment was to cause small dumping 
margins on certain of the sales.  Combined with the US practice of zeroing out the negative dumping 
margins, this small amount of dumping caused by th e adjustment was sufficient to raise the overall 
anti-dumping margin above the de minimis  level, specifically to 1.36 per cent.  Ironically, the 
differential on which the US authorities based the adju stment was the direct result of Siderca’s efforts 
to abide by the US countervailing duty law. 
 
17. This is the context leading up to the sunset de termination under review by this panel.  It is a 
context that shows near constant pressure by the US industry on Argentine OCTG exports, a near constant need for the Argentine industry and Govern ment to defend itself in the US proceedings, a 
long demonstrated history of fair trading by Siderca, and more than a decade of investigation by the 
Department of the OCTG industry.  During this en tire period, there were two negative determinations 
of dumping, several no subsidy findings, with the on ly affirmative subsidy findings not exceeding one 
per cent,  and a small anti-dumping margin of 1.36  per cent that was issued on controversial grounds 
resulting from Siderca’s effort to abide by US law.  Throughout this period, Siderca had to participate, 
and participated fully, in three anti-dumping inve stigations, one CVD investigation, several CVD 
administrative reviews, and four anti-dumping administrative reviews
15 for the purpose of proving 
that it did not ship to the United States. 
 
                                                      
11 Small Diameter Circular Seamless Carbon and Alloy Steel Standard, Line, and Pressure Pipe from 
Argentina , 60 Fed. Reg. 31,953 (Dep’t Comm. 1995)(final anti-dumping determ.)(ARG-25). 
12 Oil Country Tubular Goods from Argentina , 60 Fed. Reg. 13,119 (Dep’t Comm. 1995)(amended 
prelim. anti-dumping determ.)(ARG-24). 
13 Oil Country Tubular Goods from Argentina , 60 Fed. Reg. 33,539 (Dep’t Comm. 1995)(final anti-
dumping determ.)(ARG-26); Oil Country Tubular Goods from Argentina , 60 Fed. Reg. 41,055 (Dep’t Comm. 
1995)(anti-dumping duty order)(ARG-27). 
14The adjustment arose from a differential rebate level in the two relevant export markets (the United 
States and China).  At that time, the Argentine Government administered a program to rebate indirect taxes incurred during the production and sales process.  This practice was then, and continues to be, a legitimate fiscal 
program under certain conditions.  The level of rebate applicable to Siderca’s exports was 15 per cent.  
However, because Siderca was subject to constant CVD reviews in the United States, and because of the uncertainty of the retrospective review system, the Argentine Government agreed to reduce the level of export 
rebates on shipments to the United States by 6.7 per cent.  At the final stage of the anti-dumping investigation, 
the Department made a “circumstance of sale” adjustment equal to the amount of the difference between the rebates received on exports to the two markets. 
15 Oil Country Tubular Goods from Argentina , 62 Fed. Reg. 18,747 (D ep’t Comm. 1997)(rescinded 
admin. review)(ARG-29); Oil Country Tubular Goods from Argentina , 63 Fed. Reg. 49,089 (Dep’t Comm. 
1998)(rescinded anti-dumping admin. review)(ARG-36); Oil Country Tubular Goods from Argentina , 64 Fed. 
Reg. 4,069 (Dep’t Comm. 1999)(rescinded anti-dumping admin. review)(ARG-38); Oil Country Tubular Goods 
from Argentina , 65 Fed. Reg. 8,948 (Dep’t Comm. 2000)(resc inded anti-dumping ad min. review)(ARG-43).  WT/DS268/R 
 Page A-11 
 
 
 II. FACTUAL BACKGROUND 
A. THE ANTI -DUMPING INVESTIGATION GIVING RISE TO THE ANTI -DUMPING DUTY ORDER ON 
ARGENTINE OCTG 
18. The anti-dumping investigation giving rise to  the US anti-dumping measure against Argentine 
OCTG began in 1994 and was completed in 1995.  The investigation was initiated prior to the entry 
into force of the WTO Agreement, but the measure wa s issued eight months af ter the entry into force 
of the WTO Agreement (August 1995).  As such, under US law, the investigation was governed by 
the pre-WTO laws and regulations. 
 
19. The US industry’s petition in the original investigation identified Siderca as the only producer 
and exporter of OCTG from Argentin a.  The Department justified the initiation of an investigation of 
Argentine OCTG based on the information related to Siderca that the petitioners provided in the 
petition.  Siderca was the only Argentine producer  and exporter considered to be a mandatory 
respondent for the investigation, and was the only party to which the Department issued a 
questionnaire.  The Department conducted a full in vestigation of Siderca and calculated a dumping 
margin of 1.36 per cent for Siderca.16  Even though this amount was below the 2 per cent de minimis  
level established in Article 5.8 of the WTO Agr eement, the investigation was governed by pre-WTO 
legislation, which established a de minimis  level of 0.5 per cent.  Theref ore, the 1.36 per cent dumping 
margin was considered sufficie nt to justify the issuance of an anti-dumping duty order. 
 
20. Under the US retrospective system of assessing anti-dumping duties, the dumping margin calculated in the original investigation serves as a deposit rate for future imports.  Final assessment 
then occurs after the opportunity for an administra tive review of any import s, the deposit rate is 
adjusted to reflect the results of any review, and definitive duties are assessed in the amount 
established in the review. 
 21. Following the imposition of the US anti-du mping measure on Argentine OCTG, Siderca 
chose to stop exporting to the US market because of  the difficulties and uncertainty presented by the 
US system of administrative reviews and the retrosp ective system of assessment of duties.  This was 
demonstrated through a series of annual reviews initiated by the Department.  Each August from 
1996-1999 (covering the five-year period relevant to the sunset review that forms the basis of this 
dispute), representatives of the US industry reques ted an annual review of shipments by Siderca.  
Under US law and practice, the petitioners are requir ed to identify the exporter for which it requests a 
review, and each time during this period, the US industry requested a review only of Siderca.  For 
example, the US industry’s letter requesting the second review states:  “Review is requested of 
Siderca because it is the only known producer of oil country tubular goods in Argentina . . . .”
17  As a 
result of such requests, the Department initiated a review in each of the four years following the 
issuance of the anti-dumping order on OCTG fr om Argentina, publishing an “initiation notice” 
naming Siderca as the exporter to be reviewed.  In certain of the reviews, the Department also issued 
an anti-dumping questionnaire.18 
                                                      
16 Oil Country Tubular Goods from Argentina , 60 Fed. Reg. 33,539 (Dep’t Comm. 1995)(final anti-
dumping determ.)(ARG-26). 
17 Letter from Schagrin Associates to the Honourable William M. Daley of 29 August 1997 (“Oil 
Country Tubular Goods from Argentina:  Request for Administrative Review”) at 2 (ARG-58). 
18 Initiation of Anti-Dumping and Countervailing Duty Reviews , 61 Fed. Reg. 48,882 (Dep’t Comm. 
1996)(initiating review for the period 11 August 1995, through 31 July 1996)(ARG-28); Initiation of Anti-
Dumping and Countervailing Duty Reviews , 62 Fed. Reg. 50,292 (Dep’t Comm. 1997)(initiating review for the 
period 1 August 1996, through 31 July 1997)(ARG-32); Initiation of Anti-Dumping and Countervailing Duty 
Reviews , 63 Fed. Reg. 51,893 (Dep’t Comm. 1998)(initiating review for the period 1 August 1997, through 
31 July 1998)(ARG-37); Initiation of Anti-Dumping and Countervailing Duty Reviews , 64 Fed. Reg. 53,318 
(Dep’t Comm. 1999)(initiating review for the period 1 August 1998, through 31 July 1999)(ARG-41). WT/DS268/R 
Page A-12  
 
  
22. In each of the four reviews requested of Siderca, Siderca replied by stating that it did not 
export OCTG to the United States for consumption in  the United States during the review period, and 
as a result asked that the review be rescinded.  In  all cases, this “no shipment certification” led to 
additional questions from the Department and additional comments from the US industry.  In all 
cases, the Department ultimately agreed with Si derca’s certification that it made no shipments and 
therefore rescinded the annual reviews beca use there were no shipments to review. 
 
B. S
UNSET REVIEW OF OCTG  FROM ARGENTINA  
23. On 3 July 2000, the Department automatically  initiated a sunset review of the anti-dumping 
duty order on OCTG from Argentina, in addition to  the sunset reviews of OCTG from Italy, Japan, 
Korea, and Mexico.19  The Petitioners responded to the in itiation notice and filed substantive 
responses as well as briefs arguing that revocation of the order woul d be likely to lead to recurrence or 
continuation of dumping, and that the anti-dumping duty order should be continued.20 
 24. Siderca also responded to the initiation no tice and filed a complete  substantive response 
arguing that revocation of the order would not be lik ely to lead to continuation or recurrence of 
dumping and that the Department should theref ore revoke the order on OCTG from Argentina.
21  
Siderca was the only Argentine OCTG producer/exporter investigated by the Department in the 
original anti-dumping investiga tion in 1994-95.  In addition, Siderca was the only Argentine 
producer/exporter for which annual reviews were requested for the years ending July 1996, 1997, 
1998, and 1999, and conducted during the five-year period relevant to sunset proceedings conducted by the Department and the US International Trade Commission (the “Commission”). 
 
25. Siderca’s substantive response satisfied all of the requirements set forth in 19 C.F.R. §§ 
351.218(d)(3)(ii)(A)-(I) and 19 C.F.R. §§ 351.218(d )(3)(iii)(A)-(E) necessary for the submission to be 
“complete.”  In its response, Siderca stated that it did not export OCTG to the United States during the 
five-year period examined in the sunset review.  Si derca also stated that, consequently, there was no 
finding of dumping other than the 1.36 per cent dumping margin calculated in the original 
investigation.
22  However, on 22 August 2000, the Department determined that Siderca’s otherwise 
complete substantive response to the Department’s  notice of initiation of the sunset review was 
“inadequate” solely on the following basis:  
During the five-year period from 1995 to 1999, the combined-average annual 
percentage of Siderca’s exports of OCTG to the United States with respect to the total 
exports of the subject merchandise to the United States was significantly below 
50 per cent.  Because the respondent accounts for significantly less than the 
50 per cent threshold that the Department normally will consider to be an adequate 
foreign response (as provided in section 35 1.218(e)(1)(ii)(A)), we recommend that 
you determine Siderca’s response to be in adequate and that we should conduct an 
                                                     
 
 
19 See Notice of Initiation of Five-Year (“Sunset”) Reviews , 65 Fed. Reg. 41,053 (Dep’t Comm. 2000) 
(ARG-44).  The ITC also initiated its sunset review on 3 July 2000.  Oil Country Tubular Goods From 
Argentina, Italy, Japan, Korea, and Mexico , 65 Fed. Reg. 41,088 (Int’l Trade Comm’n 2000)(notice of 
institution of sunset reviews)(ARG-45). 
20Issues and Decision Memorandum for the Sunset Reviews of the AD Orders on Oil Country Tubular 
Goods from Argentina, Italy, Japan, and Korea  (Dep’t Comm., 31 October 2000 )(final results) at 3-4 (ARG-
51). 
21 See Substantive Response of Siderca to the Department’s Initiation of Sunset Review of the AD 
Order on OCTG from Argentina (2 August 2000)(ARG-57). 
22 Oil Country Tubular Goods from Argentina , 60 Fed. Reg. 33,539 (Dep’t Comm. 1995)(final anti-
dumping determ.)(ARG-26).  WT/DS268/R 
 Page A-13 
 
 
 expedited (120 day) sunset review (as provi ded for at section 751(c)(3)(B) of the Act 
and at section 351.218(e)(1)(ii)(C) of the Department’s regulations).23 
26. In its Issues and Decision Memorandum , dated 31 October 2000 (and incorporated by 
reference into the Department’s Sunset Determination), the Department stated: 
 
Although the Department received a substantive response on behalf of Siderca, the 
Department explained in its 22 August 2000 adequacy determination that because, 
during the period 1995 to 1999, the average annual share of Siderca’s exports of the 
subject merchandise vis-a-vis the total Arge ntine exports of the subject merchandise 
during the same period was significantly below the fifty-per cent threshold provided 
for in section 351.218(e)(1)(ii)(A) of the Sunset Regulations, the Department 
determined Siderca’s substantive response to be inadequate.24 
27. Based on its determination that Siderca’s response was inadequate, the Department stated 
“[i]n the instant reviews, the Department did not receive an adequate response from respondent 
interested parties.  Pursuant to  section 351.218(d)(2)(iii) of the Su nset Regulations, this constitutes a 
waiver of participation.”25 
 
28. In its 7 November 2000 Final Determination in the sunset review (which incorporates the 
Department’s Issues and Decision Memorandum ), the Department stated that revocation of the anti-
dumping duty on OCTG from Argentina would be likely to lead to continuation or recurrence of 
dumping.  The Department stated that the margin of  likely dumping was 1.36 per cent, the same rate 
as in the original investigation.  The Department then reported this rate to the Commission as the 
likely dumping margin to prevail in the event of termination. 26 
 
29. In the Commission’s Sunset Determination,27 the Commission conduc ted a cumulative injury 
analysis.  The Commission also distinguished its sunset findings on the basis of the type of OCTG products under review.  
30. With regard to casing and tubing, the Commission found that there was no likelihood that 
subject imports of casing and tubing from Argentina,  Italy, Japan, Korea, and Mexico would have no 
discernible adverse impact on the domestic industry if the orders were revoked.
28  It based its 
determination on the following factors:  (1) despite declines in imports since imposition of the order, 
producers in each of the subject countries continued to export to the United States, and had retained 
                                                      
23 Oil Country Tubular Goods from Argentina:  Adequacy of Respondent Interested Party Response to 
the Notice of Initiation , A-357-810 (Dep’t Comm., 22 August 2000) at 2 (ARG-50). 
24 Issues and Decision Memorandum for the Sunset Reviews of the AD Orders on Oil Country Tubular 
Goods from Argentina, Italy, Japan, and Korea  (Dep’t Comm., 31 October 2 000)(final results) at 3 (“ Issues and 
Decision Memorandum ”) (ARG-51). 
25 Id. at 5. 
26Oil Country Tubular Goods from Argentina, Italy, Japan, and Korea , 65 Fed. Reg. 66,701 (Dep’t 
Comm. 2002)(final results sunset review)(ARG-46). 
27 Oil Country Tubular Goods from Argent ina, Italy, Japan, Korea, and Mexico , USITC Pub. 3434, 
Inv. Nos. 701-TA-364, 731-TA-711, and 713-716 (June 2001) (“Commission’s Sunset Determination”) (ARG-
54). 
28 In determining whether imports compete with each other and with the domestic like product, the 
Commission considers the following factors:  (1) the degree of fungibility between the imports from different 
countries and between imports and the domestic like product; (2) the presence of sales or offers to sell in the 
same geographical markets of imports from different countries and the domestic like product; (3) the existence of common or similar channels of distribution for imports from different countries and the domestic like 
product; and (4) whether the imports are simultaneously present in the market.  See, e.g. , Wieland Werke, AG v. 
United States , 718 F. Supp. 50, 52 (CIT 1989)(ARG-9). WT/DS268/R 
Page A-14  
 
 active channels of distribution in the United States ; (2) the importance of price considerations to 
purchasers, along with other prevailing conditions of competition, and (3) the fact that foreign 
producers produced other tubular products on the same machinery used to produce casing and tubing 
and thus could easily shift production between the subject merchandise and other products.
29 
 
31. The Commission also found a likelihood of a reasonable overlap of competition among 
imports from the subject countries.  First, it determined that the subject imports and the domestic like 
product were fungible, in that they were made to  the same specifications, including relevant API 
certification requirements.30  It based this conclusion on questionnaire responses from US producers, 
importers, and purchasers.  32. Second, it found that the subject imports and the domestic like product were sold through 
similar channels of distribution, particularly to steel distributors.
31  In this regard, it discounted 
evidence presented by Siderca that much of their production was sold to end-users, stating that, 
notwithstanding this fact, the majority of subject imports were still sold to distributors. 
 33. Third, the Commission found that sales of subject imports and the domestic like product 
occurred in the same geographic market.
32  It noted that both US distributors and importers reported 
selling on a nationwide basis, and that sales of both imports and domestic casing and tubing were 
concentrated in Texas and the Gulf region. 
 34. Finally, the Commission noted that subject casing and tubing imports and domestic casing 
and tubing were simultaneously present in the mark et in each year during the investigation period 
(1992-94), and there was no information on the record of the reviews that indicated that this situation 
would change if the orders were to be revoked.
33   
 
35. With respect to the likelihood analysis, th e Commission considered the likely volume, the 
likely price effects, and the likely impact on the domestic industry.  With regard to the volume of 
subject imports, the Commission concluded:  “[W]e find that the volume of subject imports is likely 
to increase significantly in the event of revocation.”34  The Commission made several findings in 
order to buttress this conclusion.  First, the Co mmission pointed to the existence of “substantial” 
available capacity in the subject countries and concluded that, notwithstanding high capacity 
utilization rates in those countries, “the record indica tes that these producers have incentives to devote 
more of their productive capacity to producing and shipping more casing and tubing to the US 
market.” 35  In this respect, the Commission found that producers in the subject countries were 
“export-oriented,” and that in particular, those producers would focus on the US market.36  The 
Commission emphasized that the “Tenaris alliance,”37 with its global focus, would likely have a 
strong incentive to have a significant presence in the US market.38  Further, the Commission found 
                                                      
29 Commission’s Sunset Determination ) at 10-11 (citing Staff Report at II-17, attached) (ARG-54). 
30 Id. at 12 (citing Staff Report at I-18, II-17, attached). 
31 Id. at 13 (citing Staff Report at  I-20, II-1-II-3, attached). 
32 Id. (citing Oil Country Tubular Goods from Argentina, Austria, Italy, Japan, Korea, Mexico, and 
Spain , USITC Pub. 2911, Inv. Nos. 701-TA-363 and 364, and 731-TA-711-717 (August 1995) at I-22, and Staff 
Report at II-4). 
33 Id. at 14 (citing Oil Country Tubular Goods from Argentina, Austria, Italy, Japan, Korea, Mexico, 
and Spain , USITC Pub. 2911, Inv. Nos. 701-TA-363 and 364, and 731-TA-711-717 (August 1995) at I-23). 
34 Id. at 17. 
35Id. at 19. 
36 Id. at 20. 
37 The Commission explained:  “NKK, TAMSA, and Si derca are all members of the Tenaris alliance 
which has long-term global contracts with large oil and gas companies with operations in the United States.”  Id. 
at 23, n.153. 
38 Id. at 19.  WT/DS268/R 
 Page A-15 
 
 
 that (1) there were significant differences between US and world-market prices for casing and tubing, 
with US prices being consistently higher, and (2) foreign producers faced significant import barriers 
in third-country markets.39 
 
36. The Commission made several findings on the issue of the importance of price in purchasing 
decisions.  Responding purchasers ranked quality as th eir prime purchasing criterion just as frequently 
as price, and product availability was considered as important to pu rchasers just as frequently as 
price.40  The Commission acknowledged that there was no  clear trend in responses to the question of 
whether price differences or differences in factor s other than price were significant in competition 
between US product and subject imports of casing and tubing.41  The Commission disregarded data 
that showed that purchasers ranked factors such as  delivery time, delivery terms, availability, and 
product quality as higher than pr ice in importance, and ranked factors such as discounts offered, 
reliability of supply, and product co nsistency as equal in importance.42 
 
37. With regard to the Commission’s analysis of the impact of imports on the domestic industry, 
the Commission recited relevant factors in mere checklist form:  
In these reviews, we find that a significant  increase in subject imports is likely to 
have negative effects on both the price and volume of the domestic producers’ 
shipments despite strong demand conditions in the near term.  We find that these 
developments likely would have a significant adverse impact on the production, shipments, sales, market share, and revenue s of the domestic industry.  This reduction 
in the domestic industry’s production, shipments, sales, market share, and revenues 
would result in erosion of the domestic industry’s profitability as well as its ability to 
raise capital and make and maintain necessary capital investments.
43 
 The Commission determined that the revocati on of the anti-dumping duty order on OCTG 
(other than drill pipe – i.e., casing and tubing) from Argentina and the other cumulated countries 
would be likely to lead to continua tion or recurrence of material in jury to the US industry within a 
reasonably foreseeable time.44 
 
III. PROCEDURAL BACKGROUND 
38. On 7 October 2002, Argentina requested cons ultations with the United States regarding 
determinations of the Department and the Commis sion arising out of the sunset reviews of OCTG 
from Argentina, as well as certain US laws, regula tions, procedures, and practices relating to sunset 
reviews.45  Argentina indicated that it considered the identified measures to be inconsistent with 
Articles 1, 2, 3, 6, 11, 12, 18, and Annex II of th e Anti-Dumping Agreement, Articles VI and X of the 
GATT 1994, and Article XVI:4 of the WTO Agreement. 
 
39. Consultations were held on 14 November 2002, and 17 December 2002.  The consultations 
failed to resolve the dispute. 
 
                                                      
39 Id. at 19-20. 
40 Id. at II-17 (Staff Report). 
41 Id. at II-18 n.71 (Staff Report). 
42 Id. at II-19 (Staff Report). 
43 Id. at 22-23. 
44Id. 
45United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from 
Argentina:  Request for Consultation by Argentina, WT/DS268/1 (7 October 2002). WT/DS268/R 
Page A-16  
 
 40. On 3 April 2003, Argentina requested the establishment of a panel.
46  T h e  P a n e l  w a s  
established by the Dispute Settlement Body on 19 May 2003.  On 22 August 2003, Argentina 
requested the Director General, pursuant to Articl e 8.7 of the DSU, to determine the composition of 
the panel.47  On 4 September 2003, the Director General wr ote to the parties, communicating the final 
composition of the panel, as follows: 
 
 Chairman:   Mr. Paul O’Connor 
 Members: Mr. Bruce Cullen 
   Dr. Faizullah Khilji.48 
 
IV. EXECUTIVE SUMMARY OF ARGENTINA’S CLAIMS 
41. Argentina’s claims are summarized as follows: 
 
A. CERTAIN US SUNSET REVIEW STATUTORY , REGULATORY , AND ADMINISTRATIVE PROVISIONS 
ARE WTO- INCONSISTENT AS SUCH  
• 19 USC. § 1675(c)(4) and 19 C.F.R. § 351.21 8(d)(2)(iii) (the “waiver provisions”) mandate 
that the Department find likelihood of continuation or recurrence of dumping without the 
conduct of a “review,” without any analysis and, hence, without the required “determination,” 
in violation of Article 11.3 of the Anti-Du mping Agreement.  Article 11.3 requires the 
authority to conduct a review and make a determination regarding whether expiry of the duty 
would be likely to lead to continuation or recurr ence of dumping and injury.  In the absence of 
such a review and determination by the auth ority, Article 11.3 mandates that anti-dumping 
measures be terminated after five years (see section VII.A.1); 
 
• 19 USC. § 1675(c)(4) and 19 C.F.R. § 351.218(d)(2)(iii) also violate US obligations under 
Article 6 of the Anti-Dumping Agreement, which apply to sunset reviews by virtue of the 
cross-reference contained in Article 11.4.  Argent ina submits that the waiv er provisions violate 
Article 6.1 because they preclude respondent inte rested parties from being able to present 
evidence.  The waiver provisions deny respondent interested parties the ability to defend their 
interest in sunset reviews in violati on of Article 6.2 (see  section VII.A.2); 
 
• The US statutory requirements that the Commis sion determine whether injury would be likely 
to continue or recur “within a reasonably fore seeable time” (19 USC. § 1675a(a)(1)) and that 
the Commission “shall consider that the effects of revocation or termination may not be 
imminent, but may manifest themselves only over a longer period of time” (19 USC. § 1675a(a)(5)) are inconsistent with Articles 3.1, 3.2, 3.4, 3.5, 3.7, 3.8, 11.1 and 11.3 of the Anti-
Dumping Agreement.  By adding the phrase “within a reasonably foreseeable time” and 
including a time frame that is not “imminent” but rather relates to “a longer period of time,” 
US law requires (“shall consider ”) speculation and an open ended analysis for possible future 
injury.  The Commission’s market forecasting an d sheer speculation is inconsistent with WTO 
requirements to assess whether termination of an  anti-dumping duty order would be likely to 
lead to recurrence of injury at the time of term ination – not at some distant, undefined point in 
                                                     
 
46United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from 
Argentina:  Request for Establishment of a Panel by Argentina, WT/DS268/2 (3 April 2003). 
47 On 1 September, the Director General communicated the composition of the panel to Argentina and 
the United States.  However, one of the individuals nominated to serve on the panel informed the Secretariat that 
she was a citizen of the United States.  The Secretariat then met with the parties, and it was agreed that another individual should be appointed in her place. 
48 United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from 
Argentina: Constitution of the Panel Established at the Request of Argentina, WT/DS268/3 (9 September 2003).  WT/DS268/R 
 Page A-17 
 
 
 the future.  Speculation about market conditions several years into the future is inconsistent 
with the requirements of Article 11.3 and Ar ticle 3 of the Anti-Dumping Agreement (see 
section VIII.C.1); 
 
• The principal obligation of Article 11.3 of th e Anti-Dumping Agreement requires that anti-
dumping measures be terminated after five y ears of imposition, unless the authorities satisfy 
the requirements for maintenance of the measur e.  The Department’s consistent practice in 
sunset review cases demonstrates an irrefutabl e presumption employed by the Department that 
dumping is likely to continue or recur in the event of termination.  This presumption violates Article 11.3.  To date there have been 217 su nset reviews conducted by the Department where 
the domestic industry has participated in the sunset proceeding.  The Statement of Administrative Action (“SAA” ) and the Department’s Sunset Policy Bulletin  establish the 
irrefutable presumption employed by the Departme nt in these cases.  In 100 per cent of the 
Department’s sunset reviews in which the dome stic industry participated the Department 
determined that dumping would be likely to continue or recur.
49  In these cases no respondent 
has been able to overcome the criteria prescribed by the SAA and the Sunset Policy Bulletin  
for termination50 (see section VII.B.); 
 
B. THE DEPARTMENT ’S SUNSET REVIEW WAS INCONSISTENT WITH US WTO   OBLIGATIONS  
• The Department’s determination to conduct an e xpedited sunset review, and its conduct of an 
expedited review, on the basis that Siderca’s OCTG  exports to the United States were less than 
50 per cent of the total OCTG exports from Arge ntina to the United States, were inconsistent 
with the requirements of Articles 11.3, 11.4, 6. 1, 6.2, 6.8, and Annex II of the Anti-Dumping 
Agreement.  Notwithstanding Siderca’s full co operation and submission of a complete 
substantive response consistent with the Department’s regulatory requirements, the 
Department deemed Siderca’s response to be inadequate solely on the basis of import data and, 
hence, denied Siderca the opportunity to defend its interest (see section VII.C.1); 
 
• The Department’s determination to conduct an e xpedited sunset review, and its conduct of an 
expedited review, were inconsistent with US obligations under the Anti-Dumping Agreement.  
The Department rendered a determination of likelihood of continuation or recurrence of 
dumping without any analysis, in violation of Article 11.3 of the Anti-Dumping Agreement, 
which requires the authority to conduct a review in order to make a determination of whether 
termination of the duty would be likely to lead to continuation or recurrence of dumping and 
injury.  In the absence of the requisite analysis  and a determination based on positive evidence, 
the anti-dumping measure on OCTG from Argentina should have been terminated (see section 
VII.C.2); 
 
• The Department’s conduct of an expedited s unset review and applic ation of the waiver 
provisions to Siderca:  (1) violated Article  6.1 of the Agreement because the Department 
precluded the opportunity for Siderca to present evidence; (2) violated Article 6.2 because the 
Department denied Siderca its ability to defend its interest; and (3) resulted in the application 
of facts available in violation of the requirements of Article 6.8 (see section VII.C.3); 
 
• The Department’s determination to conduct an expedited sunset review, and the Department’s 
Sunset Determination, which incorporated the Department’s Issues and Decision 
Memorandum by reference, violated Articles 12.2 and 12.2.2 of the Anti-Dumping Agreement 
                                                      
49 US Department of Commerce Sunset Reviews (ARG-63). 
50 Id. WT/DS268/R 
Page A-18  
 
 because the Department failed to provide public notice and explanations in sufficient detail of 
its findings on all issues of fact and law (see section VII.C.4); 
 
• The Department’s Sunset Determination was in consistent with Article 11.3 of the Anti-
Dumping Agreement because the Department failed to apply the disciplines of Article 2, failed 
to conduct a prospective analysis, failed to make  a determination of “likely” (or “probable”) 
dumping, and failed to base its determination on  positive evidence.  Indeed, the Department’s 
reliance on the decline in Siderca’s exports in the wake of the anti-dumping measure as the 
sole basis for its likelihood determination was inconsistent with Article 11.3 of the Anti-Dumping Agreement.  In addition, the Department’s reliance on the original margin of 
dumping of 1.36 per cent, calculated using th e WTO-inconsistent practice of zeroing negative 
margins for purposes of its likelihood decision, as well as its reporting of that margin to the Commission, were inconsistent with Artic le 11.3 and Article 2 of the Anti-Dumping 
Agreement (see section VII.D.); 
 
• Separate and apart from whether US anti-dump ing laws and regulations regarding sunset 
reviews are deemed to establish an unlawful presumption, or are otherwise found to be 
consistent per se with US WTO obligations, and irrespective of whether the SAA and Sunset 
Policy Bulletin  are “measures” that can be subject to challenge, the data drawn from the 
Department’s sunset review determinations demonstrate that the Department failed to 
administer in an impartial and reasonable manner US anti-dumpin g laws, regulations, 
decisions and rulings with respect to the Department’s conduct of sunset reviews of anti-
dumping duty orders, in violation of Article X:3(a) of the GATT 1994 (see section VII.E.). 
 
C. T
HE COMMISSION ’S SUNSET REVIEW WAS INCONSISTENT WITH US WTO  OBLIGATIONS  
• The Commission’s Sunset Determination that te rmination of the duty would be likely to lead 
to continuation or recurrence of injury was inco nsistent with Article 11.3 of the Anti-Dumping 
Agreement because the Commission’s standard for determining likely injury was inconsistent 
with Article 11.3.  The Commission applied a much lower standard for determining the 
likelihood of injury than that which is re quired by Article 11.3 (see section VIII.A); 
 
• The Commission’s Sunset Determination violated Ar ticles 3.1, 3.2, 3.4, 3.5, and 11.3 of the 
Anti-Dumping Agreement because the Commission did not conduct an objective examination 
of the record or base its determination on positive evidence.  The Commission’s conclusions 
regarding the likely volume of imports, the like ly price effects, and the likely impact of 
imports on the domestic industry can in no way be considered to be objective when those 
conclusions are viewed in light of a neutral examination of the info rmation on the record.  
Moreover, the purported bases relied on by the Commission in support of its likely injury 
finding simply do not constitute positive evid ence as required by Article 3.1 of the Anti-
Dumping Agreement (see sections VIII.B.1-3); 
 
• In assessing the likelihood of continuation or recu rrence of injury to the domestic industry, the 
Commission failed to evaluate all the relevant economic factors and indices having a bearing on the state of the industry, including those enumerated in Article 3.4 of Anti-Dumping 
Agreement, thereby violating that provision. The Commission also failed to satisfy the 
causation requirements of Article 3.5 (see sections VIII.B.3 and 4);  
 
• The Commission’s application of 19 USC. § 1675a(a)(1) and 19 USC. § 1675a(a)(5) in the 
sunset review of OCTG from Argentina was incons istent with Articles 3.1, 3.2, 3.4, 3.5, 3.7, 
3.8, 11.1 and 11.3 of the Anti-Dumping Agreement.  By applying the standard “within a 
reasonably foreseeable time” (19 USC. § 1675a(a)(1)) and using a time frame that is not  WT/DS268/R 
 Page A-19 
 
 
 “imminent” but rather relates to “a longer pe riod of time” (19 USC. § 1675a(a)(5)), the 
Commission speculated and conducted an open-ended analysis for possible future injury.  The 
Commission’s market forecasting and sheer speculation was inconsistent with WTO 
requirements to assess whether termination of an anti-dumping duty order would be likely to 
lead to recurrence of injury at the time of term ination – not at some distant, undefined point in 
the future.  Speculation about market conditions several years into the future was inconsistent 
with the requirements of Articles 11.1, 11.3, 3.1, 3.2, 3.4, 3.5, 3.7, and 3.8 of the Anti-
Dumping Agreement (see section VIII.C.2);  
 
• The Commission’s application of a cumulative in jury analysis of OCTG imports from Korea, 
Italy, Japan, Mexico, and Argentina to dete rmine whether termination of the anti-dumping 
duty on Argentine OCTG imports would be likely  to lead to continuation or recurrence of 
injury was inconsistent with Article 11.3 of the Anti-Dumping Agreement, which precludes 
the use of a cumulative injury an alysis in sunset reviews.  Alternatively, if cumulation is 
permitted in sunset reviews, the Commission’s deci sion to cumulate in the instant case violated 
Article 3.3 of the Anti-Dumping Agreement by fa iling to comply with th e explicit restrictions 
on cumulation set forth therein. In addition,  the Commission’s decision to cumulate was 
inconsistent with the likely standard of Artic le 11.3 and with the evidentiary standards of 
Article 3, as interpreted by the Appellate Body in Steel from Germany  (see sections VIII.D, E, 
and F).  
 
D. CONSEQUENTIAL VIOLATIONS OF THE ANTI-DUMPING AGREEMENT , THE GATT  1994,  AND 
THE WTO  AGREEMENT  
• Because the United States violated its obligati ons under the Anti-Dumping Agreement, it also 
violated the provisions of Article VI of the GATT 1994, Articles 1 and 18 of the Anti-
Dumping Agreement, and Article XVI:4 of  the WTO Agreement (see section IX). 
 V. OVERVIEW OF US SUNSET REVIEW LAW 
A. S
UNSET REVIEWS UNDER US LAW  
1. Introduction 
42. Following the Uruguay Round, US anti-dumping law was amended to provide for five-year 
“sunset” reviews of anti-dumping orders.51  Among other amendments to  the Tariff Act of 1930, the 
Uruguay Round Agreements Act (“URAA”) establishe d a mechanism for the automatic review of 
certain anti-dumping duty orders, suspended anti- dumping duty investigations, and countervailing 
duty orders. 
 
43. As with the administration of  US trade remedy laws genera lly, and the conduct of anti-
dumping and countervailing duty investigations, the responsibility for the conduct of sunset reviews is 
bifurcated between the Department and the Commission.  The Department determines whether 
“revocation” of an an ti-dumping or counterva iling duty order, or termination of a suspended 
investigation, would be likely to lead to continua tion or recurrence of dumping or of a countervailable 
subsidy.  The Commission is required to determine whether revocation of an anti-dumping or 
countervailing duty order, or termination of a susp ended investigation, would be likely to lead to 
continuation or recurrence of injury.  44. Under US law, sunset reviews are initiated auto matically, rather than following substantiation 
by the authorities, or based upon a request by an in terested party.  The regulations implementing the 
                                                     
 
51See 19 USC. § 1675(c)(ARG-1); 19 USC. § 1675a (ARG-1). WT/DS268/R 
Page A-20  
 
 URAA provide for two kinds of sunset reviews:  (i) “Expedited Review” and (ii) “Full Review.”
52  As 
described below, in certain situations US law mand ates a finding of likely dumping without a review. 
 2. Procedures for determining the type of s unset review conducted: Expedited review or 
full review 
45. Whether a domestic interested party has requested a review, as well as considerations 
concerning the content and “adequacy” of the interested parties’ required submissions, dictate which 
type of “review”
53 the Department and the Commission will conduct. 
 
46. Within 15 days from the notice of initiatio n of the sunset review, the Department’s 
regulations require domestic interested  parties to file a notice of intent to participate in the sunset 
review.54  If no domestic interested party expresses a de sire to participate, the Department will issue a 
final determination revoking the order within 90 days.55  However, if any  domestic interested party 
indicates an intent to participate, the Department  will conduct a review.  Submissions by respondent 
interested parties to the notice of initiation of the sunset review that are deemed to be “inadequate” 
trigger expedited reviews.  If both sides submit “adequate” responses, the Department conducts a full 
review. 
 
47. In determining whether responses are “adequa te,” US law draws a sharp distinction between 
domestic and respondent parties.  Domestic intere sted parties will normally be considered to have 
provided an adequate response if the Department determines that at least one  domestic interested 
party files a “complete substantive response.”56  On the other hand, respondent interested parties are 
normally considered to have provided an adequate response only if “complete substantive responses” 
are filed by those accounting for more than 50 per cent of total exports  of the subject merchandise 
from that country (on a volume or value basis) to the United States over the five calendar years 
preceding the initiation notice. 57  If the Department determines that a respondent interested party has 
not satisfied its 50 per cent threshold it will norm ally conduct an expedited sunset review based on 
“facts available,” without considering information submitted by such interested party and without further investigation.
58 
 
48. Within 30 days from the notice of initiation, all interested parties must file a complete 
substantive response to the Department’s notice of initiation of the sunset review.59  Respondent 
parties, however, are required to report substan tially more information than domestic parties.60 
                                                      
52 See 19 USC. §§ 1675(c)(3)-(5)(ARG-1). 
53 Argentina’s description of US law is not intended to suggest that Argentina concedes that the 
Department does in all circumstances conduct a “review” and make a “determination” as required by 
Article 11.3 of the Anti-Dumping Agreement. 
54 19 C.F.R. § 351.218(d)(ARG-3). 
5519 USC. § 1675(c)(3)(A) provides that “[i]f no [domestic producer] interested party responds to the 
notice of initiation under this subsection, the administering authority shall issue a final determination, within 90 days after the initiation of a review, revoking the order . . . .” (ARG-1). 
5619 C.F.R. § 351.218(e)(1)(i)(A)(ARG-3). 
5719 C.F.R. § 351.218(e)(1)(ii)(A)(ARG-3). 
5819 C.F.R. § 351.218(e)(1)(ii)(C)(2)(ARG-3). 
5919 C.F.R. §§ 351.218(d)(3)(i)(ARG-3).   19 C.F.R. § 351.218(d)(3)(ii)(A)-(I) sets forth the required 
information that must be filed by all interested parties and the additional information that must be filed by respondent interested parties in order for a response to be deemed complete.  All parties are required to submit 
contact information, statement of intent, and indication of willingness to participate, statement regarding the 
likely effects of revocation, and any factual arguments regarding historical dumping margins or import volumes. 
60 See 19 C.F.R. §§ 351.218(d)(3)(iii)(A)-(E)(ARG-3).  The information burden imposed on respondent 
parties – a burden not shared by US parties – includes the respondent parties’ weighted-averaged dumping rates, 
the volume and value of the exporter’s shipments for the last five years, the volume and value of the exporter’s  WT/DS268/R 
 Page A-21 
 
 
  
3. Effect of conduct of expedited sunset review 
49. The Department conducts an expedited review if a respondent interested party’s substantive 
response is “inadequate,” or deemed by the Depa rtment to be “inadequate” based solely on the 
percentage of the company’s US exports irrespective  of the amount of information actually provided 
by the defendant.  19 USC. § 1675(c)(3)(B) provid es that “if interested parties provide inadequate 
responses to a notice of initiation, the administering authority, within 120 days after the initiation of 
the review, or the Commission, within 150 days after such initiation, may issue, without further 
investigation, a final determination ba sed on the facts available . . . .” 
 
4. Effect of a “waiver” determination by the Department in a sunset review 
50. The US statute affords parties the option of not participating in the proceedings before both 
the Department and the Commission.  As indicated by the express terms in the provision, 19 USC. § 
1675(c)(4)(A) pertains only to respondent interested parties: 
 
An interested party described in section [ 1677(9)(A) or (B)] of this title may elect not 
to participate in a review conducted by th e [Department] under this subsection and to 
participate only in the review conducted by the Commission. 
51. In addition to an “elective waiver” provi ded for by statute, the Department sometimes 
employs a “deemed waiver” in practice.  The “deemed waiver” rule also pertains only to respondent  
interested parties.  US parties are not similarly exposed to the jeopardy of a deemed waiver.  The 
effect of a waiver is clear: 
 
In a review in which an interested party waives its participation pursuant to this 
paragraph, the administering authority shall conclude  that revocation of the order or 
termination of the investigation would be lik ely to lead to continuation or recurrence 
of dumping or a countervailable subsidy (as the case may be) with respect to that interested party.
61 
52. As noted, the statutory language is mandatory; the Department “shall” determine likely 
dumping if it deems a respondent interested party to have waived its participation,  whether by failing 
to submit a response or by failing to have exports to the United States in the amount of 50 per cent or 
more of the total exports of subject merchandise to the United States.62 
 
53. In addition to the statutory waiver provisions , the Department’s regulations equate “waiver of 
participation in a sunset review before the Departme nt” with “the failure by a respondent interested 
party to file a complete substantive response to a notice of initiation.”63 
 
5. Implementing US Uruguay Round obligations:  The Statement of Administrative Action 
(“SAA”) 
54. The US Statement of Administrative Action, by its own terms, provides the authoritative 
statement on how the United States will implem ent its obligations under the WTO Agreements, 
including the GATT 1994 and the Anti-Dumping Agreement: 
                                                                                                                                                                     
shipments in the year preceding the dumping investigation, the percentage of the respondent’s total exports to 
the United States, and the volume and value of the exporter’s shipments for the two most recent fiscal quarters. 
61 19 USC. § 1675(c)(4)(B)(ARG-1)(emphasis added). 
62 19 C.F.R. § 351.218(d)(2)(iii) and 19 C.F.R. § 351.218(e)(1)(ii)(A)(ARG-3). 
63 19 C.F.R. § 351.218(d)(2)(iii)(ARG-3). WT/DS268/R 
Page A-22  
 
  
[The SAA] represents an authoritative e xpression by the Administration concerning 
its views regarding the interpretation and application of the Uruguay Round 
agreements, both for purposes of US intern ational obligations and domestic law.   
Furthermore, the Administration understands that it is the expectation of the Congress 
that future Administrations will obser ve and apply the interpretation and 
commitments set out in this Statement.  Moreover, since this Statement will be 
approved by the Congress at the time it implements the Uruguay Round agreements, 
the interpretation of those agreements incl udes in this statement carry particular 
authority.
64 
55. US courts have recognized the unique status of the SAA in the legislative scheme.  For 
instance, in Micron Technology Corp., Inc. v. United States,65 the Federal Circuit based its decision on 
a reading of both the language of the statute and the SAA.66  While there is nothing unusual about a 
court looking to the legislative hist ory of a statutory provision to assist in its interpretation, the court 
in Micron  evaluated the plain meaning of both the stat ute and the SAA, in a side-by-side exercise.67  
Indeed, the Court stated that “[t]he SAA, of course, is more than mere legislative history.”68  T h e  
Court also cited to the US law that provides that  the SAA “‘shall be regarded as an authoritative 
expression by the United States concerning the inte rpretation and application of the Uruguay Round 
Agreements and this Act in any judicial procee ding in which a question arises concerning such 
interpretation or application’.”69  Significantly, the Court interpreted the statute based on the mandate 
of the SAA, and held that the meaning and effect of the statutory provision had changed, notwithstanding statements in the House and Senate reports that the legislation did not change US law on the point.
70 
 
56. WTO panels such as the one in United States – Measures Treating Export Restraints as 
Subsidies , have recognized this point, noting that: 
 
The United States acknowledges “the stat us of the SAA as an authoritative 
interpretive tool” . . . .  While the United St ates indicates that the SAA cannot change 
the meaning of, or override, the statute to which it relates, “[a]s a general proposition, 
[] in terms of legislative history, the SAA ranks supreme” . . . .   It is clear to us that 
the [Uruguay Round Agreements Act] grants to the SAA unique legal status as an authoritative interpretation of the URAA , which the US courts must take into account.  
The text of the SAA confirms this by ch aracterising itself as “an authoritative 
interpretation . . . both fo r purposes of US international obligations and domestic 
law.”  The SAA went through an approval process in Congress, and was in fact 
approved by Congress at the same time as the URAA .  The United States itself 
acknowledges that ‘there is no disagreement between the parties about the status of 
the SAA as an authoritative interpretive tool.”   Finally, it is clear that no other form 
of legislative history has higher authority th an the SAA with regard to the meaning of 
the statute.  The United States indicates th at “If, hypothetically, on a particular 
                                                     
 
64US Statement of Administrative Action , accompanying the Uruguay Round Agreements Act, Pub. L. 
No. 103-465, 108 stat. 4809 (1994), at 656, reprinted in  1994 USC.C.A.N. 4040 (“SAA”)(ARG-5). 
65 243 F.3d 1301 (Fed. Cir. 2001)(ARG-7). 
66 Id. at 1308. 
67  Id. at 1308-09. 
68 Id. at 1309. 
69 Id. 
70 Id. at 1310.  WT/DS268/R 
 Page A-23 
 
 
 interpretive issue, the SAA said ‘X’ and some other document of legislative history 
(e.g., a committee report) said ‘Y,’ the interpretation should be ‘X.’”71 
57. The unique authority of the SAA has also been repeatedly recognized by courts in the United 
States.72 
 
6. The Department of Commerce Sunset Policy Bulletin  
58. The Department’s Sunset Policy Bulletin73 adopts the standards of the SAA and states that the 
Department “normally” will determine that dump ing is likely to continue or recur where: 
 
- dumping continued at any level above de minimis  [(i.e., above 0.5 per cent)] 
after  the issuance of the order or the suspension agreement, as applicable; 
- imports of the subject merchandise ceased after the issuance of the order or 
the suspension agreement, as applicable, or  
- dumping was eliminated after the issuance of the order or the suspension 
agreement, as applicable, and import  volumes for the subject merchandise 
declined significantly.74 
- In analyzing whether import volumes remained steady or increased, the 
Department normally will consider co mpanies’ relative market share.75 
7. The Department’s “likelihood” determination 
59. The SAA outlines the many instances in whic h the Department will determine that dumping 
is likely to continue or recur.76  The SAA does not contain guidance as to particular circumstances that 
                                                      
71 Panel Report, United States – Measures Treating Export Restraints as Subsidies , WT/DS194/R, 
adopted 23 August 2001, paras. 8.97-8.98 (“ US Exports Restraints ”) (footnotes omitted). 
72 See e.g., SKF USA, Inc. v. United States , 263 F.3d 1369, 1373 n.3 (Fed. Cir. 2001) (“The SAA, of 
course, is more than mere legislative history.  Congre ss has instructed that ‘[t]he statement of administrative 
action approved by the Congress . . . shall be regarded as an authoritative expression by the United States 
concerning the interpretation and application of the Uruguay Round Agreements and this Act in any judicial 
proceeding in which a question arises concerning such interpretation or application.’”);  Micron Technology, 
Inc., 243 F.3d at 1305 n.3 (ARG-7)(“[T]he SAA is ‘an authoritative expression by the United States concerning 
the interpretation and application of the Uruguay Round Agreements and this Act in any judicial proceeding in 
which a question arises concerning such interpretation or application.’”); AK Steel Corp. v. United States,  226 
F.3d 1361, 1368 (Fed. Cir. 2000)(ARG-6) (“When confronted with a change in statutory language, we would 
normally assume Congress intended to effect some change in the meaning of the statute.  . . .  Here, however, 
the SAA prevents us from making such an assumption an d we have revised our opinion primarily to address the 
authoritative weight given the SAA in the statute.”)(citations omitted); Allied Tube and Conduit Corp. v. United 
States,  127 F. Supp. 2d 207, 217 (CIT 2000)(ARG-12) (“The Federal Circuit and this Court have recognized the 
controlling nature of the SAA and have used it as an authoritative guide in interpreting the Uruguay Round Agreements.”); Micron Technology, Inc. v. United States, 40 F. Supp. 2d 481, 484-485 (CIT 1999)(ARG-
11)(“In addition, the Court finds that, contrary to Micron's argument, the relevant language from the SAA 
should not be dismissed as mere legislative history.  As Commerce notes, Congress expressly approved the SAA as the authoritative expression governing application of the URAA in judicial proceedings.”). 
73 Policies Regarding the Conduct of Five-Year (“Sunset”) Reviews, 63 Fed. Reg. 18,871 (Dep’t 
Comm., 1998)(“ Sunset Policy Bulletin” )(ARG-35). 
74 Id. at 18,872. 
75 Id. at 18,873. 
76 SAA at 889-890 (ARG-5). WT/DS268/R 
Page A-24  
 
 would warrant the Department finding that dumping is not
 likely to continue or recur in a sunset 
review. 
 
60. As noted above, the Department is required by statute to conduct a review to determine 
whether revocation of the anti-dumping duty order would be likely to lead to continuation or 
recurrence of dumping.77   
 
61. However, the making of such a determination is highly circumscribed by the SAA.  The SAA 
states that: 
 
The determination called for in thes e types of [sunset] reviews is inherently predictive 
and speculative .  There may be more than one likely outcome following revocation or 
termination.  The possibility of other likely outcomes does not mean that a 
determination that revocation or termination is likely to lead to continuation or 
recurrence of dumping or countervailable subsidies, or injury, is erroneous, as long as 
the determination of likelihood of continuation or recurrence is reasonable in light of the facts of the case.  In such situations, the order or suspended investigation will be 
continued.
78 
62. In the context of sunset reviews, the SAA outlines the many instances in which, under US 
law, the Department will determine that du mping is likely to continue or recur: 
 
[The Bill] establishes standards for dete rmining the likelihood of continuation or 
recurrence of dumping.  Under section 752(c)(1), Commerce will examine the 
relationship between dumping margins, or the absence of margins, and the volume of 
imports of the subject merchandise, comparing the periods before and after the 
issuance of an order or the acceptance of a suspension agreement.  For example, 
declining import volumes accompanied by the continued existence of dumping 
margins after the issuance of an order may provide a strong indication that, absent an order, dumping would be likely to continue, because the evidence would indicate that 
the exporter needs to dump to sell at pre-order volumes. . . . 
The Administration believes that existence of dumping margins after the order,  or the 
cessation of imports after the order , is highly probative of the likelihood of 
continuation or recurrence of dumping.  If companies continue to dump  with the 
discipline of an order in place, it is reasonable to assume that dumping would 
continue if the discipline were removed. . . . 
[T]he existence of zero or de minimis dumping margins at any time while the order 
was in effect shall not in itself require Commerce to determine that there is no likelihood of continuation or recurrence of dumping.   Exporters may have ceased 
dumping because of the existence of an orde r or suspension agreement.  Therefore, 
                                                     
 
77 19 USC. § 1675(c)(1)(ARG-1).  19 USC. §§1675a(c)(1)(A)-(B)(ARG-1) set forth additional 
requirements with respect to the Department’s likelihood determination, including that in conducting the sunset review, the Department “shall consider”: 
 
the weighted average dumping margins determined in the investigation and subsequent reviews, and 
 
the volume of imports of the subject merchandise for the period before and the period after the issuance of the anti-dumping duty order or acceptance of the suspension agreement. 
 
78 SAA at 883 (ARG-5)(emphasis added).  WT/DS268/R 
 Page A-25 
 
 
 the present absence of dumping is not necessarily indicative of how exporters would 
behave in the absence of the order or agreement.79 
8. The Commission’s “likelihood” determination 
63. As noted above, the Commission is requir ed to conduct a review to determine whether 
revocation of the anti-dumping duty order would be likely to lead to continuation or recurrence of 
injury.  19 USC. §§1675a(a)(1)-(7) establish a dditional requirements with respect to the 
Commission’s sunset review. 
 
64. Subsections 1675a(a)(1)-(3) direct the Commission to consider whether any improvement in 
the state of the domestic industry is due to the an ti-dumping duty order and whether the industry is 
vulnerable to injury if the order were revoked.  In addition, the statute directs the Commission to 
consider additional factors, including whether the exporting country has actual or potential excess 
capacity; whether the exporter has existing inventorie s of subject merchandise or likely increases in 
subject merchandise; whether the exporter has the pote ntial for product-shifting;  whether the exporter 
faces barriers in importing the subject merchandis e to third countries; whether underselling by the 
exporter is likely, compared to domestic products; and whether imports would depress or suppress the price of like domestic goods. 
 
65. Subsections 1675a(4)-(5) direct the Commissi on to consider certain factors bearing on the 
impact on the domestic industry.
80   
 66. Importantly, however, the SAA provides sp ecific guidance on how the Commission should 
evaluate the factors identified in the statute in  the conduct of sunset review proceedings: 
 
[T]he Commission must consider whether there has been any improvement  in the 
state of the domestic industry that is related to the imposition of the order or the acceptance of a suspension agreement.  The Commission should not determine that 
there is no likelihood of continuation or recurrence of injury simply because the 
industry has recovered after the imposition of an order or acceptance of a suspension 
agreement, because one would ex pect that the imposition of an order or acceptance of 
a suspension agreement would have some beneficial effect on the industry.  
Moreover, an improvement  in the state of the industry related to an order or 
acceptance of a suspension agreement may suggest that the state of the industry is likely to deteriorate  if the order is revoked or the suspended investigation 
terminated.
81 
67. Subsection 1675a(a)(7) gives the Commission  discretion to conduct a cumulative injury 
analysis in sunset reviews:  
For purposes of this subsection, the Commission may cumulatively assess the volume 
and effect of imports of the subject merc handise from all countries with respect to 
which reviews under section 1 675(b) or (c) of this title were initiated on the same 
day, if such imports would be likely to compete with each other and with domestic 
like products in the United States market.  The Commission shall not cumulatively 
                                                     
 
79 Id. at 889-890 (emphasis added). 
80 These include, but are not limited to, “(A) likely de clines in output, sales, market share, profits, 
productivity, return on investments, and utilization of capacity, (B) likely negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital, and investment, and (C) likely negative effects 
on the existing developm ent and production efforts of the industry . . . .”  19 USC. §§ 1675a(4)(A)-(C)(ARG-1). 
81 SAA at 884 (ARG-5)(emphasis added). WT/DS268/R 
Page A-26  
 
 assess the volume and effects of imports of the subject merchandise in a case in 
which it determines that such imports are lik ely to have no discernible adverse impact 
on the domestic industry. 
VI. STANDARD OF REVIEW, BURDEN OF PROOF, AND THE SUBSTANTIVE WTO 
OBLIGATIONS AT ISSUE IN THIS DISPUTE 
A. S
TANDARD OF REVIEW  
68. The relevant provisions establishing the standard  of review in this case are Article 11 of the 
DSU and Article 17.6 of the Anti- Dumping Agreement.  As the Appellate Body noted recently, “the 
two provisions complement each other.”82 
 
69. Article 11 of the DSU requires a panel to “m ake an objective assessment of the matter before 
it, including an objective assessment of the facts of  the case and the applicability of and conformity 
with the relevant covered agreements.”  Article  17.6 of the Anti-Dumping Agreement sets out a 
special standard of review that co mplements Article 11 of the DSU. 
 70. Article 17.6(i) requires a panel to review th e investigating authorities’ “establishment” and 
“evaluation” of the pertinent facts.
83  The Appellate Body has clarif ied the standard applicable to 
factual review under the Anti-Dumping Agreement as follows: 
 
Article 17.6(i) sets forth the approp riate standard to be applied by panels  in 
examining the WTO-consistency of the investigating authorities'  establishment and 
evaluation of the facts under other provi sions of the Anti-Dumping Agreement.  
Thus, panels must assess if the establis hment of the facts by the investigating 
authorities was proper  and if the evaluation of those facts by those authorities was 
unbiased and objective .  If these broad standards have not been met, a panel must 
hold the investigating authorities’ establis hment or evaluation of the facts to be 
inconsistent with the Anti-Dumping Agreement.84 
71. In the recent compliance panel appeal in the Bed Linens  case, the Appellate Body provided 
additional guidance on the applicab le standard under Article 17.6(i): 
 
In US – Hot-Rolled Steel , we stated that “[a]lthough the text of Article 17.6(i) is 
couched in terms of an obligation on panels . . . the provision, at the same time, in 
effect defines when investigating authorities can be considered to have acted 
inconsistently with the Anti-Dumping Agreement.” We further explained that the text 
of Article 17.6(i) of the Anti-Dumping Agreemen t, as well as that of Article 11 of the 
DSU, “requires panels to ‘assess’ the facts and this . . . clearly necessitates an active 
review or examination of the pertinent facts.”85 
72. Thus, in accordance with the guidance provide d by the Appellate Body, this Panel will need 
to undertake an “active review or examination of th e pertinent facts” pertaining to the sunset review 
determinations relating to OCTG from Argentina, a nd the decision by the US Government to continue 
                                                      
82 Appellate Body Report, European Communities – Anti-Dumping Duties on Imports of Cotton-Type 
Bed Linen from India:  Recourse to Article 21.5 of the DSU by India ,  WT/DS141/AB/RW, adopted 
24 April 2003, para. 164 (“ Bed Linen from India ”). 
83 See United States – Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan , 
WT/DS184/AB/R, adopted 23 August 2001, para. 55 (“ Hot-Rolled Steel from Japan ”). 
84 Id. at para. 56. 
85 Appellate Body Report , Recourse to Article 21.5,  Bed Linen from India , para. 163.  WT/DS268/R 
 Page A-27 
 
 
 the anti-dumping measure beyond the five year period prescribed by Article 11.3 of the Anti-
Dumping Agreement. 
 
73. The second subparagraph of Article 17.6 applie s to a panel’s review of whether measures in 
dispute rest upon a permissible interpretation of the Anti-Dumping Agreement.86 
 
74. A panel’s objective assessment of whether the US measures identified by Argentina are 
consistent with the Anti-Dumping Agreement and th e GATT 1994 is guided by its interpretation of 
the relevant provisions of those agreements in ac cordance with customary rules of interpretation of 
public international law, as codified in the Vienna Convention on the Law of Treaties .87  The general 
rules of interpretation of the Vienna Convention  require a panel to interpret treaty provisions in good 
faith in accordance with their ordinary meaning, in th eir context, and in light of the treaty’s object and 
purpose.88  Thus, the treaty language defines the extent of Members’ rights and obligations.  One of 
the corollaries of this general rule is that “interpr etation must give meaning and effect to all the terms 
of a treaty.  An interpreter is not free to adopt a r eading that would result in reducing whole clauses or 
paragraphs of a treaty to  redundancy or inutility.”89 
 
75. Article 3.2 of the DSU reaffirms that the ro le of the WTO dispute settlement system is to 
preserve the rights and obligation of Members under the covered agreements, and to “clarify the 
existing provisions of those agreements in accordance  with customary rules of interpretation of public 
international law.”  Article 17.6( ii) of the Anti-Dumping Agreement similarly provides that panels are 
to interpret the relevant provisions of the Anti- Dumping Agreement “in accordance with customary 
rules of interpretation of pu blic international law.”  In Hot-Rolled Steel from Japan , the Appellate 
Body explained that “a permissible interpretati on is one which is found to be appropriate after 
application of the pertinent rules of the Vienna Convention. ”90 
 
76. In sum, under the applicable legal standa rd of review, a panel must make an objective 
assessment of the legal provisions at issue and thei r applicability to the dispute.  The panel must then 
interpret the pertinent treaty provisions in accord ance with the customary rules of interpretation of 
public international law and assess whether each m easure rests upon a permissible interpretation of 
the Anti-Dumping Agreement and the GATT 1994.91 
 
B. BURDEN OF PROOF  
77. In WTO dispute settlement pr oceedings, the burden of proof re sts with the Member asserting 
the particular claim or defense.  As stated by the Appellate Body, 
 
[T]he burden of proof rests upon the party, whether complaining or defending, who 
asserts the affirmative of a particular claim or defence.  If that party adduces evidence 
sufficient to raise a presumption that what is  claimed is true, the burden then shifts to 
                                                      
86 Appellate Body Report , Hot-Rolled Steel from Japan , para. 60. 
87 Id. (referencing the Vienna Convention on the Law of Treaties, adopted 22 May 1969, 1155 
U.N.T.S. 331)(“ Vienna Convention ”)).  See Appellate Body Report , United States – Gasoline , at 16-17; 
Appellate Body Report, Japan – Taxes on Alcoholic Beverages , WT/DS8/AB/R, WT/DS10/AB/R, 
WT/DS11/AB/R, adopted 1 November 1996, at 104-06 (“ Appellate Body Report, Japanese Taxes on Alcoholic 
Beverages ”). 
88 See Vienna Convention , Art. 31(ARG-59). 
89 Appellate Body Report,  United States – Gasoline , at 23. 
90 Appellate Body Report , Hot-Rolled Steel from Japan , para. 60. 
91 Id. at para. 62. WT/DS268/R 
Page A-28  
 
 the other party, who will fail unless it ad duces sufficient evidence to rebut the 
presumption.
92 
78. In the context of this dispute, concerned w ith WTO compatibility of th e decision to continue 
the definitive anti-dumping measur es applicable to OCTG from Argentina imposed by the United 
States, Argentina bears the burden of presenting a prima facie  case of violation of provisions of the 
Anti-Dumping Agreement and the GATT 1994.  A prima facie  case is “one which, in the absence of 
effective  refutation  by the defending party, requires a panel, as a matter of law, to rule in favour of the 
complaining party presenting the prima facie  case.”93  Thus, where Argentina presents a prima facie 
case in respect of a claim, the burden then shifts to the United States to provide an “effective 
refutation” of Argentina’s case.  
C. S
UBSTANTIVE OBLIGATIONS AT  ISSUE IN THIS DISPUTE  
1. The primary obligation of Article 11.3 of th e Anti-Dumping Agreement is termination of 
anti-dumping measures 
79. The matter before this Panel concerns the ap plication of definitive anti-dumping measures by 
the United States pursuant to sunset reviews governed by Article 11.3 of the Anti-Dumping 
Agreement.  The Panel’s objective assessment of  the matter will include an interpretation of 
Article 11 of the Anti-Dumpi ng Agreement, which provides in relevant part as follows: 
 
Duration and Review of Anti-Dumping Duties and Price Undertakings 
11.1 An anti-dumping duty shall remain in force only as long as and to the extent 
necessary to counteract dumping which is causing injury. 
… 11.3 Notwithstanding the provisions of paragraphs 1 and 2, any definitive anti-
dumping duty shall be terminated on a date not later 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 paragraph), unless the 
authorities determine, in a review initiated before that date on their own initiative or 
upon a duly substantiated request made by or on behalf of the domestic industry 
within a reasonable period of time prior to that date, that 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. 
11.4 The provisions of Article 6 regarding evidence and procedure shall apply to 
any review carried out under this Article.  Any such review shall be carried out 
expeditiously and shall normally be concluded within 12 months of the date of 
initiation of the review. 
80. Thus, the Anti-Dumping Agreement makes clear that anti-dumping duties are to be limited in 
scope and duration, and that a continuation of th e order beyond five years requires strict compliance 
                                                     
 
92 Appellate Body Report, United States – Measure Affecting Imports of Woven Wool Shirts and 
Blouses from India , WT/DS33/AB/R and Corr.1,  adopted 23 May 1997, p. 14 (“ Woven Shirts from India ”). 
93 Panel Report, Thailand – Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy 
Steel and H-Beams from Poland , WT/DS122/AB/R, adopted 5 April 2001, para. 7.49 (“ H-Beams from 
Poland ”)(citing  Appellate Body Report, European Communities – Measures Concerning Meat and Meat 
Products , adopted 13 February 1998, WT/DS26 and 48/AB/R, para. 104 (“ EC – Hormones ”).  WT/DS268/R 
 Page A-29 
 
 
 with the conditions set out in the Agreement.  The panel in Pipe Fittings from Brazil , recently 
recognized this point, stating that: 
 
By virtue of Article 11.1 of the Anti-Du mping Agreement, an anti-dumping duty may 
only continue to be imposed if it rema ins “necessary” to counteract injurious 
dumping.  Article 11.1 contains a general, unambiguous and mandatory requirement 
that anti-dumping duties “shall remain in force only as long as and to the extent 
necessary” to counteract injurious dumping .  It furnishes the basis for the review 
procedures contained in Article 11.2 (and 11.3) by stating a general and overarching 
principle, the modalities of which are set fort h in paragraph 2 (and 3) of that Article.94 
81. The Appellate Body put the matter succinctly: 
 
Article 11.1 of the Anti-Dumping Agreement  is categorical  that “[a]n anti-dumping 
duty shall remain in force only as long as  and to the extent ne cessary to counteract 
dumping which is causing injury.”95 
82. Similarly, in Steel from Germany , the Appellate Body interpreted Article 21.3 of the SCM 
Agreement, which parallels Article 11.3 of the Anti-Dumping Agreement.96  Article 21.3 of the SCM 
Agreement and Article 11.3 of the Anti-Dumping Agreement are essentia lly identical provisions, save 
the subject matter coverage. 
 
83. The Appellate Body in Steel from Germany  explained that the primary obligation of 
Article 21.3 is termination of the measure after five years.  Continuation of the measure is the 
exception, and only if the requirements of  the Agreement are strictly complied with: 
 
[W]e wish to underline the thrust of Article 21.3 of the SCM Agreement.  An 
automatic time-bound  termination of countervailing duties that have been in place for 
five years from the original investigation or a subsequent comprehensive review is at 
the heart of this provision .  Termination of a countervailing duty is the rule and its 
continuation is the exception.  The continuation of a countervailing duty must 
therefore be based on a properly conducted review and a positive determination  that 
the revocation of the countervailing duty would ‘be likely to lead to continuation or 
recurrence of subsidization and injury.’97 
84. The Appellate Body affirmed the essence of  the Article 21.3 obli gation: “Article 21.3 
prohibits the continuation of countervailing duties un less a review is undertaken and the prescribed 
determination, based on adequate evidence, is made.”98  The Appellate Body emphasized that 
continuation of a measure is permitted only when the specified conditions of Article 21.3 are satisfied: 
 
Article 21.3 imposes an exp licit temporal limit on the ma intenance of countervailing 
duties.  For countervailing duties that have been in place for five years, the terms of 
Article 21.3 require their termination unless  certain specified conditions are met.  
Specifically, a Member is permitted not to terminate such duties only if it conducts a 
review and, in that review, determines that  the prescribed conditions for the continued 
                                                      
94 Panel Report, Pipe Fittings from Brazil , para. 7.113. 
95 Appellate Body Report, European Communities – Anti-Dumping Duties on Malleable Cast Iron 
Tube or Pipe Fittings from Brazil , WT/DS219/AB/R, adopted 18 August 2003, para. 81 (“ Pipe Fittings from 
Brazil ”) (emphasis added). 
96 Appellate Body Report, Steel from Germany , paras. 58-118. 
97 Id. at para. 88 (emphasis added). 
98 Id. at para. 117. WT/DS268/R 
Page A-30  
 
 application of the duty are satisfied.  The pr escribed conditions are “that the expiry of 
the duty would be likely to lead to contin uation or recurrence of subsidization and 
injury”.  If, in a sunset review, a Member  makes an affirmative determination that 
these conditions are satisfied, it may continue to apply countervailing duties beyond 
the five-year period set forth in Article 21.3 .  If it does not conduct a sunset review, 
or, having conducted such a review, it does not make such a positive determination, 
the duties must be terminated.
99 
85. The Appellate Body also explained that the obligation contained in Article 21.3 must be 
interpreted in its immediate context of Article 21, which places several conditions on the continuation 
of countervailing duty measures:  
Turning to the immediate context of Article 21.3, we observe the title to Article 21 of 
the SCM Agreement reads ‘Duration and Review of Countervailing Duties and 
Undertakings.’  The first paragraph of Artic le 21 stipulates that a countervailing duty 
‘shall remain in force only as long as and to the extent necessary to counteract subsidization which is causing injury.’  We see this as a general rule that, after the 
imposition of a countervailing duty, the continued application of that duty is subject 
to certain disciplines.  Thes e disciplines relate to the duration  of the countervailing 
duty (‘only as long as necessary’), its magnitude  (‘only to the extent necessary’), and 
its purpose  (‘to counteract subsidization which is causing injury’).  Thus, the general 
rule of Article 21.1 underlines the require ment for periodic review of countervailing 
duties and highlights the factors that must inform such reviews.
100 
86. This interpretation is directly  relevant to the interpretation of the Anti-Dumping Agreement.  
Article 11 of the Anti-Dumping Agreem ent, in parallel to that of Artic le 21 of the SCM Agreement, is 
entitled “Duration and Review of An tidumping Duties and Price Undertakings.”  The first paragraph 
of Article 11 similarly stipulates that an anti-dump ing duty “shall remain in force only as long as and 
to the extent necessary to counteract dumping which is causing injury.”  
87. Thus, like the SCM Agreement, the Anti-Dump ing Agreement also incorporates disciplines 
that prescribe clear limitations regarding the durat ion of the anti-dumping duty (“only as long as 
necessary”), its magnitude  (“only to the extent necessary”), and its purpose  (”to counteract dumping 
which is causing injury”).  88. To paraphrase the Appellate Body’s interpre tation of the SCM Agreement, the Anti-Dumping 
Agreement is “aimed at striking a balance  between the right to impose  [anti-dumping] duties to 
[counteract dumping] that is causing injury, and the obligations that Members must respect  in order to 
do so.”  As Argentina sets out below, the United St ates ignored this balance, and failed to uphold its 
obligations under the Anti-Dumping Agreement in  its Sunset Determination on OCTG from 
Argentina. 
 
2. The plain and ordinary meaning of the term “likely” in Article 11.3 is “probable.”  
Hence, an anti-dumping duty can be maintained  only if it is probable that dumping and 
injury would continue or recur if the anti-dumping measure were terminated 
89. Pursuant to the customary rules of interpretati on of public international law, as codified under 
the Vienna Convention , a treaty shall be interpreted in good faith in accordance with the ordinary 
meaning of the terms of the treaty in their context, and in the light of its object and purpose.  This 
                                                     
 
99 Id. at para. 63 (emphasis in original). 
100 Id. at para. 70 (emphasis in original).  WT/DS268/R 
 Page A-31 
 
 
 interpretive approach applies to all WTO provisions, including those under Article 11 of the Anti-
Dumping Agreement. 
 
90. Article 11.3 provides that an existing order sh all be terminated unless “the expiry of the duty 
would be likely to lead to continuation or recu rrence of dumping and injury.”  The panel in DRAMS 
From Korea  commented on the ordinary meaning of the wo rd “likely” as used in Article 11.3, noting 
“that ‘likelihood’ or ‘likely’ carries with  it the ordinary meaning of ‘probable.’”101 Both the ordinary 
meaning of the term “likely” and the context of Article 11.3 require the application of a “probability” 
standard to the question of whether injury will conti nue or recur.  In other words, the continuation or 
recurrence of dumping and injury must be more likely than not.102 
 91. Indeed, the United States itself has asserted before the WTO that the term “likely” means 
“probable.” In Steel from Germany , the United States expressly stated that “[t]he word ‘likely’ carries 
with it the ordinary meaning of ‘probable.’”
103  The United States declared this interpretation in 
discussing the parallel provision of Article 11.3 in the SCM Agreement.  The US statement thus bears 
directly on the interpretation of Articl e 11.3 of the Anti-Dumping Agreement. 
 
92. Both US and WTO jurisprudence make clear that  “likely” does not have the same meaning as 
“possible.”  In order to make a determination that is consistent with Article 11.3, the Department and 
the Commission must find that it is “likely” ( i.e., more probable than not) that termination of the anti-
dumping measure will lead to the continuance or recurrence of dumping and injury, respectively. 
As will be demonstrated below, the “likely” stan dards applied by the Depa rtment and the Commission 
conflict with the ordinary meaning of Article 11.3. 
 3. The obligations in Articles 2, 3, 6 and 12 of the Anti-Dumping Agreement are applicable 
to reviews conducted under Article 11.3 
94. In clarifying WTO Members’ rights and obligations under Article 11.3, the Vienna 
Convention rules of treaty interpretation provide that a pa nel must give the terms of the provision their 
ordinary meaning and must interpret them in their context – both the immediate context ( i.e., the other 
paragraphs of Article 11) and the broader context ( i.e., the other provisions of the Anti-Dumping 
Agreement, and the WTO Agreements as a whole), in  accordance with the object and purpose of the 
specific provisions.  95. The terms of Article 11 mand ate compliance with the following provisions of the Anti-
Dumping Agreement: 
 
                                                     
 
101 Panel Report,  United States – Anti-Dumping Duty on Dynamic Random Access Semiconductors 
(DRAMs) of One Megabit or Above from Korea,  WT/DS99/R, circulated 7 November 2000, para. 6.48 n.494 
(“DRAMs from Korea ”). 
102 Similarly, the only decisions of the US Court of International Trade (two involving the same case) 
to address the question are in accord that the term “likely” in the US anti-dumping statute as used in the sunset review context should be given its ordinary meaning of “probable.”  See Usinor Industeel, S.A. v. United States , 
No. 01-00006, slip. op. 02-39 at 13 (CIT 29 April 2002) (“ Usinor I ”)(ARG-14); Usinor Industeel, S.A. v. United 
States,  No. 01-00006, slip. op. 02-152 at 2 (CIT 20 December 2002) (“ Usinor II )(ARG-16); and Nippon Steel 
Corp. v. United States,  No. 01-00103, slip. op. 02-153 at 7-8 (CIT 24 December 2002)(ARG-17).  The grounds 
for remand in Nippon Steel  were essentially the same as those in the Usinor  cases ( i.e., the Commission failed to 
apply the plain and ordinary meaning of the term “likely”).   
103 Oral Statement of the United States at the First Meeting of the Panel, United States – Countervailing 
Duties on Certain Corrosion-Resistant Carbon Steel Flat Products from Germany , WT/DS213 (29-
30 January 2002), para. 6. WT/DS268/R 
Page A-32  
 
 • Article 2 (Dumping)
: Article 2.1 defines “dumping” “for the purposes of the Agreement.”  
Thus, the definition of “dumping” applies for all purposes under the Anti-Dumping 
Agreement, including sunset reviews under Article 11.  
 
• Article 3 (Injury) :  Article 3 of the Anti-Dumping Agreement applies to reviews conducted 
under Article 11.  The jurisprude nce establishes that the broad scope of the definition of injury 
in Article 3 (“under this agreement”) applies to “injury” for all purposes under the Agreement, 
including Article 11.3.  Footnote 9 to Article 3, “ Determination of Injury ,” provides “ Under 
this Agreement the term ‘injury’ shall, unless otherwise specified, be taken to mean material 
injury to a domestic industry, threat of injury to a domestic industry or material retardation to 
the establishment of such an industry and shall be interpreted in accordance with the 
provisions of this Article .”104  The Appellate Body has held that “the obligations in Article 3.1 
apply to all injury determinations undertaken by Members,”105 and has reaffirmed this 
proposition, stating “Article 3.1 is an overarc hing provision that sets forth a Member’s 
fundamental, substantive obligation with  respect to the injury determination.”106  Given the 
broad scope of the definition of injury in Artic le 3 (“under this agreement”), as recognized by 
the Appellate Body, Article 3 applies to “injury” under Article 11.3.  Moreover, the Panel in the recent United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant 
Carbon Steel Flat Products From Japan case stated that:   
 
Article 3 is entitled “Injury.”  This tit le is linked to footnote 9 of the 
Anti-Dumping Agreement, which indicates that:  “[u]nder this 
Agreement the term ‘injury’ shall, unless otherwise specified, be 
taken to mean material injury to a domestic industry, threat of 
material injury to a domestic industry or material retardation of the 
establishment of such an indust ry and shall be interpreted in 
accordance with the provisions of this Article.” This seems to 
demonstrate that the term “injury” as it appears throughout the Anti-Dumping Agreement  – including Article 11 – is to be construed in 
accordance with this footnote, unless otherwise specified. This would 
seem to support the view that the provisions of Article 3 concerning 
injury may be generally applic able throughout the Anti-Dumping 
Agreement and are not limited in application to investigations. 
Article 11 does not seem to explicitly  specify otherwise in the case of 
sunset reviews. 
There are other textual indications that the Article 3 injury obligations apply throughout the 
Agreement. For example, the use of the language “for purposes of Article VI of GATT 1994” 
in Article 3.1 also suggests that, in general, the obligations in Article 3 pertaining to injury 
may apply throughout the Anti-Dumping Agr eement, i.e. they are not limited to 
investigations.
107   
                                                      
104 Emphasis added.  The report of the DRAMS  from Korea  panel provides the following support for 
this proposition: “We note that, by virtue of note 9 of the AD Agreement, the term ‘injury’ in Article 11.2 ‘shall be interpreted in accordance with the provisions of Article 3.’”  Panel Report , DRAMS from Korea , para. 6.59 
n.501.  The panel’s ruling in DRAMS from Korea  applies equally in this case with respect to Article 11.3. 
105 Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes and Sections of Iron or 
Non-Alloy Steel H-Beams from Poland , WT/DS122/AB/R, adopted 5 April 2001, para. 114 (emphasis added) 
(“H-Beams from Poland ”). 
106 Appellate Body Report,  Hot-Rolled Steel from Japan , para. 192 ( quoting Appellate Body Report , H-
Beams from Poland , para. 106). 
107 There was not a definitive ruling from the panel on this issue, since the panel said that this was “an 
issue we need not and do not decide.”  Panel Report, United States – Sunset Reviews of Anti-Dumping Duties on  WT/DS268/R 
 Page A-33 
 
 
  
• Article 6 (Evidence) :  Article 6 of the Anti-Dumping Agre ement applies to reviews conducted 
under Article 11 as mandated by the explicit te rms of Article 11.4: “The provisions of Article 
6 regarding evidence and procedure shall apply to any review carried out under this Article.”  
Thus, all provisions of Article 6 apply to all reviews under Article 11. 
 
• Article 12 (Notice) :  Article 12 of the Anti-Dumping Ag reement applies to reviews conducted 
under Article 11 because Article 12.3 provides that  “[t]he provisions of A[rticle 12] shall apply 
mutatis mutandis108 to the initiation and completion of revi ews pursuant to Article 11 . . . .”  
Article 12.3 applies all of the Article 12 disciplin es regarding notice and th e need for sufficient 
explanations to sunset review proceedings under Article 11. 
 
• Article 18 (Final Provisions) :  Article 18.3 of the Anti-Dumping Agreement expressly 
provides that “the provisions of this Agreement shall apply to investigations, and reviews of 
existing measures  initiated pursuant to applications made  on or after the date of entry into 
force of the WTO Agreement.”  (Emphasis added.)  Thus, the Anti-Dumping Agreement applies 
to sunset reviews of anti-dumping measures imposed prior to the entry into force of the WTO 
Agreement. 
 96. Through these provisions the United States  had an obligation to (1) terminate the anti-
dumping measure on Argentine OCTG unless, (2) it conducted a substantive review and (3) made a 
determination (4) based on evidence, that (5) dumping (in accordance with the requirements of 
Article 2) and (6) injury (in accordance with the requirements of  Article 3 requirements) would be (7) 
“likely” (the common meaning of which is “probabl e”) to continue or recur if the anti-dumping 
measure were terminated. 
 
VII. THE DEPARTMENT’S SUNSET DETERMINATION AND THE DEPARTMENT’S 
DETERMINATION TO CONDUCT AN EXPEDITED SUNSET REVIEW WERE 
INCONSISTENT WITH THE ANTI-DUMPING AGREEMENT AND GATT 1994 
97. While previous WTO panels and the Appellate  Body have considered challenges to the 
Department’s sunset review proceedings, this case is  unique in several respects, including that it is the 
first dispute in which a WTO panel is being asked to review the application of the sunset review 
“waiver” and “expedited review” provisions of US  sunset law and the Department’s regulations. 
 
98. The key facts relevant to the Department’s  Sunset Determination are recalled briefly as 
follows.  Siderca had not shipped any OCTG to the United States for consumption during the relevant 
period for purposes of the sunset review.  Siderc a stated this to the Department.  (Siderca made 
similar “no-shipment” representations during each of  the relevant administrative review periods.  The 
Department conducted “non-shipment” reviews and in each instance verified Siderca’s claims that the 
company had not exported OCTG to the United States.)  The Department’s import data, however, 
showed the existence of some Argentine OCTG imports  to the United States.  Because Siderca’s total 
exports of OCTG to the United States (zero exports) were less than 50 per cent of total OCTG exports 
                                                                                                                                                                    
 
Corrosion-Resistant Carbon Steel Flat Products from Japan , WT/DS244, circulated 14 August 2003, 
paras. 7.99-7.101 (“ Sunset Review of Steel from Japan ”). 
108 Black’s Law Dictionary provides the following definition of mutatis mutandis : “With necessary 
changes in points of detail, meaning that matters or things are generally the same, but to be altered when 
necessary, as to names, offices and the like.”  In other words, mutatis mutandis provides for changes in detail 
while preserving substance. WT/DS268/R 
Page A-34  
 
 from Argentina to the United States, however, the Department determined Siderca’s response to be 
“inadequate.”
109 
 
99. The Department then determined that be cause Siderca’s response was deemed to be 
“inadequate,” the company was similarly deemed to have “waived” its right to participate in the 
sunset review.110  The Department deemed Argentina to have waived its right to participate because of 
the “inadequate” response to the initiation notice. 111 
 
100. It is difficult to discern the actual basis for the Department’s determination – whether the 
Department relied on the “waiver” provision, 19 USC. § 1675(c)(4)(B)(“In a review in which an interested party waives its participation pursuant to  this paragraph, the administering authority shall 
conclude that revocation of the order. . . . would be likely to lead to continuation or recurrence of 
dumping . .  .”), or the “facts available” provision , 19 USC. § 1675(c)(3)(B) (“If interested parties 
provide inadequate responses to a notice of initia tion, the administering authority . . .  may issue, 
without further investigation, a final determination based on the facts available . . . ”).  The 
Department’s determination purports to rely on both provisions.
112  However, as explained below, the 
basis for the simultaneous application of these provisions to a single respondent is unclear. 
 
101. These provisions are mutually exclusive: a respond ent either waives its right to participate, or 
it attempts to participate and the Department determ ines that the application of facts available is 
necessary.  Argentina submits that the application of  either provision to the sunset review of OCTG 
from Argentina violates the requirements of Article 11.3 of the Anti-Dumping Agreement. 
 
                                                      
109 Oil Country Tubular Goods From Argentina:  Adequacy of Respondent Interested Party Response 
to the Notice of Initiation , A-357-810 (Dep’t Comm., 22 August 2000)(ARG-50). 
110 Issues and Decision Memorandum at 4-5 (ARG-51)(“In the instant reviews, the Department did not 
receive an adequate response from respondent interested parties.  Pursuant to section 351.218(d)(2)(iii) of the 
Sunset Regulations, this constitutes a waiver of participation.”). 
111 The Department’s Issues and Decision Memorandum states: 
 
As discussed in section II.A.3 of the Sunset Policy Bulletin , the SAA at 890, and the House 
Report at 63-64, if companies continue dumping with the discipline of an order in place, the 
Department may reasonably infer that dumping would continue if the discipline were 
removed.  We note that there have been above de minimis margins for the investigated 
companies throu ghout the history of the orders , except for one company covered by the 
order on Japan.  Consistent with section 752(c) of the Act, the Department also considered the 
volume of imports before and after issuance of the order.  According to the import statistics 
provided by domestic interested parties and, as confirmed by Census IM 145 reports statistics, imports of subject merchandise  decreased in 1995 and, since 1996, have significantly 
decreased from their pre-order levels.  Based on this analysis, the Department finds that the 
existence of dumping margins after the issuance of the orders is highly probative of the likelihood of continuation or recurrence of dumping.  Therefore, given that dumping 
continued after the issuance of the orders, average imports continued at levels far below 
pre-order levels from 1995 to 1999, and resp ondent interested parties waived their right 
to participate in these reviews or failed to submit adequate substa ntive responses, we 
determine that dumping is likely to continue if the orders were revoked.  
 
Issues and Decision Memorandum at 5 (ARG-51) (emphasis added). 
 
112 This case is not the only case in which it is difficult to determine the basis for the Department’s 
determination.  Indeed, in 166 sunset reviews, the Department cited to both the “waiver” provision, 19 USC. § 
1675(c)(4), and the “facts available” provision, 19 USC. § 1675(c)(3)(B) – two mutually exclusive provisions – 
as the basis for its determination.  See US Department of Commerce Sunset Reviews (ARG-63).  WT/DS268/R 
 Page A-35 
 
 
 102. The operation of the waiver provision in this case precluded the Department from conducting 
a review and making the determination required by  Article 11.3 of the Anti-Dumping Agreement.  
Instead, the waiver provision mandates a finding of likely dumping without any analysis.  
Accordingly, Argentina believes that the US waiver  provisions and the Department’s application of 
those provisions violate US obligations under the Anti-Dumping Agreement as such and as applied in 
this case. 
 
103. Whether the Department based its determination on the “waiver” provision – 19 USC. § 
1675(c)(4) – or the “facts available” provision – 19  USC. § 1675(c)(3)(B) – the Department failed in 
either event to conduct a “review” and make a “deter mination” that expiry of the duty would be likely 
to lead to continuation or recurrence of dumping,  as required by Article 11.3 of the Anti-Dumping 
Agreement.  Furthermore, regardless of whether th e waiver provision was actually applied in this 
case, the provision can be challenged as such.  19 USC. § 1675(c)(4)(B) mandates that the 
Department forego a “review” and automatically find that dumping would be likely to continue or 
recur when a company is deemed to have waived its right to participate in the sunset review.  Such a 
finding is required without a review and an analysis  under the standard leading to a “determination” 
as required by Article 11.3 of  the Anti-Dumping Agreement. 
 
104. Section A below describes Argentina’s ch allenge to the waiver provisions as being 
inconsistent “as such” with Artic le 11.3, and Articles 6.1 and 6.2 of the Anti-Dumping Agreement. 
 105. Section B sets forth Argentina’s argu ment that US law, the SAA, and the Sunset Policy 
Bulletin  establish an irrefutable presumption that dumping  is likely to occur, and that this irrefutable 
presumption is demonstrated by the Department’s consistent sunset review practice. 
 
106. Section C below describes Argentina’s cha llenge to the Department’s determination to 
conduct, and its conduct of, an expedited sunset re view of OCTG from Argentina, and application of 
the waiver provisions and/or facts available provisions in violation of Articles 11, 2, 6, and 12 of the 
Anti-Dumping Agreement. 
 
107. Section D sets forth the Argentina’s challenge  to the Department’s likelihood determination, 
as applied. 
 
108. Section E demonstrates that, in the alternative, the United States is in violation of GATT 
Article X:3(a). 
 A. T
HE US SUNSET REVIEW WAIVER PROVISIONS , 19 USC.  § 1675( C)(4) AND 19 C.F.R.  § 
351.218( D)(2)( III), ARE INCONSISTENT WITH THE ANTI-DUMPING AGREEMENT :  WHEN A 
RESPONDENT INTERESTED PARTY IS DEEMED TO HAVE “WAIVED ” ITS RIGHT TO PARTICIPATE 
IN A SUNSET REVIEW , THE WAIVER PROVISIONS PRECLUDE THE DEPARTMENT FROM 
CONDUCTING A “REVIEW ” AND MAKING A “DETERMINATION ” WHETHER EXPIRY OF THE DUTY 
WOULD BE LIKELY TO LEAD TO CONTINUATION OR RECURRENCE OF DUMPING , AND INSTEAD 
MANDATE A FINDING OF LIKELY DUMPING WITHOUT ANY ANALYSIS  
1. The US Sunset Review Waiver Provisions, as  such, violate the Anti-Dumping Agreement 
because they prohibit the Department fr om conducting a “review” and making a 
“determination” as required by Article 11.3.  Instead, these provisions mandate that the 
Department render a “likely” dumping de termination without any substantive, 
prospective analysis of the facts existing at the time of the sunset review in order to make the determination required by Article 11.3 
109. The US sunset review waiver provisions, as such, violate the Anti-Dumping Agreement 
because, pursuant to these provisions, the Depart ment neither conducts a “review” nor makes a WT/DS268/R 
Page A-36  
 
 “determination” that expiry of the duty would be likely to lead to continuation or recurrence of 
dumping, as required by Article 11.3.  Instead, th ese provisions mandate that the Department render a 
“likely” dumping determination without any analysis of the facts existing at the time of the sunset 
review in violation of Article 11.3. 
 
110. The use of the word “determine” in Article 11.3 indicates that the drafters contemplated 
positive action by the authority to satisfy the obli gation set out in the provision.  The plain and 
ordinary meaning of “determine” is “to establish or ascertain definitely, as after consideration, 
investigation, or calculation.”
113  The use of the term “determine” in Article 11.3 thus requires that the 
authority take action in order to reach a conclusion.  Indeed, there is nothing in the meaning of the word “determine” or structure of Article 11.3 th at contemplates passivity on the part of the 
administering authority in satisfying the obligation.  This is consistent with the meaning ascribed by 
the Section 301  panel to the term “determination,” albeit in a slightly different context, that of 
interpreting Article 23.2(a) of th e DSU.  The panel noted that some of the relevant dictionary 
meanings of the word “determination" included “t he action of coming to a decision.”  The panel 
added that:  
Without there being a need precisely to define what a “determination” in the sense of 
Article 23.2(a) is, we consider that – give n its ordinary meaning – a “determination” 
implies a high degree of firmness or immutab ility, i.e. a more or less final decision by 
a Member in respect of the WTO consistency of a measure taken by another Member.
114 
111. The use of the term “determine” in Article 11.3 thus requires that the authority take action in 
order to reach a conclusion.  Passivity on the part  of the administering authority cannot satisfy the 
obligation under Article 11.3.  The requirement of Article 11.3 is unambiguous:  anti-dumping 
measures must be terminated after five years, unless a “review” is conducted and the authority 
“determines” that termination would be likely to lead to continuation or recurrence of dumping and 
injury.  As stated by the Sunset Review of Steel from Japan  panel: 
 
The text of Article 11.3 contains an obligation “to determine” likelihood of 
continuation or recurrence of dumping.  The requirement to make a “determination” 
concerning likelihood therefore precludes  an investigating authority from simply 
assuming that likelihood exists.   In order to continue the imposition of the measure 
after the expiry of the five-year imposition period, it is clear that the investigating 
authority has to determine, on the basis of positive evidence , that termination of the 
duty is likely to lead to continuation or recurrence of dumping.  An investigating 
authority must have a sufficient factual basis to allow it to draw reasoned and 
adequate conclusions  concerning the likelihood of such continuation or recurrence.115 
112. In Steel from Germany , the panel held that the “sufficien t factual basis” for the purposes of 
sunset reviews “should rest on the evaluation of the evidence that it has gathered during the original 
investigation, the intervening reviews and finally the sunset review.”116  The panel further confirmed 
that in sunset reviews, “an investigating authority should collect relevant facts and base its likelihood 
analysis on those facts. . . .   Such relevant fact s may be in the possession of  either the investigating 
                                                      
113 The American Heritage Dictionary 388 (2d ed. 1982)(ARG-60). 
114 Panel Report, United States – Sections 301-310 of the Trade Act of 1974, WT/DS152/R, adopted 
27 January 2000, n.657 (“ United States – Section 301 ”). 
115 Panel Report, Sunset Review of Steel from Japan , para. 7.177. 
116 Panel Report, United States – Countervailing Duties on Certain Corrosion-Resistant Carbon Steel 
Flat Products from Germany , WT/DS213/R, adopted 19 December 2002, para. 8.96 (“ Steel from Germany ”).  WT/DS268/R 
 Page A-37 
 
 
 authorities or the interested parties.”117  Even though the authorities make a prospective assessment in 
sunset reviews, their determination nevertheless “mus t itself have an adequate basis in fact” at the 
time of the review.118 
 
113. In Steel from Germany,  the panel stated that “one of the components of the likelihood analysis 
in a sunset review under Article 21.3 is an assess ment of the likely rate of subsidization” (or under 
Article 11.3 of the Anti-Dumping Ag reement, the rate of dumping).119  The panel held as follows: 
The facts necessary to assess the likelihood of subs idization in the event of revocation may well be 
different from those which must be taken into account in an original investigation.  Thus, in assessing 
the likelihood of subsidiza tion in the event of revocation of the CVD, an investigating authority in a 
sunset review may well consider,  inter alia , the original level of subsidization, any changes in the 
original subsidy programmes, any new subsidy programmes introduced after the imposition of the 
original CVD, any changes in government policy, and any changes in relevant socio-economic and 
political circumstances.120 
 
114. Because the facts in the original investigation may differ from those existing at the time of the 
sunset review, the investigating authority must gath er and evaluate updated facts during the sunset 
review in order to make the substantive and meanin gful determination required under Article 11.3 of 
the Anti-Dumping Agreement.  As the panel in Steel from Germany  stated: 
 
Article 21.3 reflects the application of the ge neral rule set out in Article 21.1 – that a 
CVD shall remain in place only as long as necessary – in the specific instance where five years have elapsed since the imposition of a CVD.  Article 21.2 reflects the same 
general rule in a different circumstance, when a reasonable period has elapsed since 
the imposition of the duty, and it is deemed necessary to review the need for the 
continued imposition of the duty. We also note that one of the principal objects of the 
SCM Agreement is to regulate the imposition of CVD measures.  Article 21.3 
effectuates that purpose by providing that after five years, a CVD should be 
terminated unless the investigating authorities  determine that there is a likelihood of 
continuation or recurrence of subsidisation and injury.
121 
115. Unless the administering authority considers a ll information presented by interested parties, 
the establishment of the facts cannot be proper a nd the evaluation of the facts cannot be considered 
unbiased and objective, as required by Artic le 17.6(i) of the Anti-Dumping Agreement.122 
                                                      
117 Id. at para. 8.95. 
118 Id. at para. 8.96. 
119 Id. 
120 Id. at para. 8.96. 
121 Id. at para. 8.91. 
122 In Hot-Rolled Steel from Japan , the Appellate Body explained that Article 17.6(i) of the Anti-
Dumping Agreement requires panels to determine: 
 
[F]irst, whether the investigating authorities' “ establishment of the facts was proper”  and, 
second, whether the authorities' “ evaluation of those facts was unbiased and 
objective’ ”(emphasis added).  Although the text of Article 17.6(i) is couched in terms of an 
obligation on panels – panels “shall” make these determinations – the provision, at the same 
time, in effect defines when investigating authorities can be considered to have acted 
inconsistently with the Anti-Dumping Agreement  in the course of their “establishment” and 
“evaluation” of the relevant facts. In other words, Article 17.6(i) sets forth the appropriate 
standard to be applied by panels in examining the WTO-consistency of the investigating 
authorities' e stablishment and evaluation of the facts under other provisions of the Anti-
Dumping Agreement. Thus, panels must assess if the establishment of the facts by the 
investigating authorities was proper and if the evaluation of those facts by those authorities WT/DS268/R 
Page A-38  
 
  
116. In order to comply with Article 11.3 of the Anti-Dumping Agreement, an investigating 
authority would have to establish a “sufficient factua l basis” for the determination required to be made 
in sunset reviews.  The investigating authorities’ de termination  “should rest on the evaluation of the 
evidence that it has gathered during the original in vestigation, the intervening reviews and finally the 
sunset review.”
123   The investigating authorities must make a “fresh determination,  based on credible 
evidence.”124  
 
117. In the case of the US waiver provisions, there simply is no “determination” or “review” and 
the Article 11.3 requirements for continuation of the anti-dumping measure are not satisfied.  To 
paraphrase the Section 301  panel, there is no “action of coming to a decision.” 
 
2. The US Sunset Review Waiver Provisions are inconsistent with Articles 11.3, 11.4, 6.1, 
and 6.2 of the Anti-Dumping Agreement 
118. The obligations of Article 6 are applicable to sunset reviews under Article 11.3 by virtue of 
the cross-reference in Article 11.4 (“the provisi ons of Article 6 regarding evidence and procedure 
shall apply to any review conducte d under this Article [Article 11]”).125  In the present case, the 
United States violated its obligations under Articl e 6, thereby consequently violating Article 11.4. 
 
119. In European Communities – Anti-Dumping Duties on Malleable Cast Iron Tube or Pipe 
Fittings from Brazil , the Appellate Body underscored “the im portance of the obligations contained in 
Article 6,” of the Anti-Dumping Agreement, which it said established a “framework of procedural and 
due process obligations.”126 
 
120. Article 6.1 of the Anti-Dumping Agreement manda tes that “all interested parties in an anti-
dumping investigation shall be given . . . ample op portunity to present in writing all evidence which 
they consider relevant in respect of the investig ation in question.”  The Department’s regulations 
regarding the “deemed waiver” of the right of a resp ondent party to participate in a sunset review 
violate Article 6.1 because they foreclose the oppor tunity for interested parties to present evidence 
regarding the likelihood of continuation or recurrence of dumping in order to inform the 
determination that the Department must make in its  sunset review.  These parties hardly have an 
“ample  opportunity to present … evidence which they consider relevant” when the Department relies 
on the waiver provisions and “deems” parties to have  waived their right to participate in the review.  
These provisions deny the parties any  opportunity to present relevant evidence.  The waiver 
provisions of the Department cannot be reconciled with the obligations of the United States under 
Article 6.1. 
 
121. The waiver provisions similarly violate Artic le 6.2 of the Anti-Dumping Agreement because 
it does not provide interested par ties with “a full opportunity for th e defense of their interests.”  
Interested parties have no opportunity – let alone a full opportunity – to defend their interests because 
the Department refuses to gather and consider info rmation that would enable it to determine whether 
                                                                                                                                                                     
was unbiased and objective .  If these broad standards have not been met, a panel must hold the 
investigating authorities’ establishment or evaluation of the facts to be inconsistent with the 
Anti-Dumping Agreement.  Para. 56. 
123 Panel Report, Steel from Germany , para. 8.95. 
124 Appellate Body Report,  Steel from Germany , para. 88. 
125 The panel in Steel from Germany confirmed that “Article 12 of the [SCM] Agreement, which 
governs, inter alia , the collection of evidence, is specifically incorporated into Article 21.”  Panel Report , Steel 
from Germany , para. 8.115. 
126 Appellate Body Report, Pipe Fittings from Brazil , para. 138.  WT/DS268/R 
 Page A-39 
 
 
 termination of an anti-dumping measure would be lik ely to lead to continuation or recurrence of 
dumping. 
 
122. Indeed, as the Panel in Sunset Review of Steel from Japan confirmed: 
 
Articles 6.1 and 6.2 make it clear that interested parties have a broadly-defined right 
to submit evidence to the investigating authority during a sunset review and are 
entitled to a full opportunity for the defence of their interests.127 
123. In sum, the waiver provisions violate US obligations under Article 6 of the Anti-Dumping 
Agreement, by virtue of the cross-reference contai ned in Article 11.4, and therefore consequentially, 
Articles 11.3 and 11.4.  The waiver provisions vi olate Article 6.1 because they preclude respondent 
interested parties from being able to present ev idence.  The waiver provisions deny respondent 
interested parties of an ability to defend their intere st in sunset reviews in violation of Article 6.2. 
 
B. THE DEPARTMENT ’S SUNSET DETERMINATION IS INCONSISTENT WITH ARTICLE 11.3  OF THE 
ANTI-DUMPING AGREEMENT BECAUSE IT WAS BASED ON AN IRREFUTABLE PRESUMPTION 
UNDER US LAW AS SUCH THAT TERMINATION OF THE ANTI -DUMPING MEASURE WOULD BE 
LIKELY TO LEAD TO CONTINUATION OR RECURRENCE OF DUMPING  
1. The Department’s sunset review practice une quivocally demonstrates an irrefutable 
presumption that dumping would be  likely to continue or recur 
124. The Department’s Sunset Determination is inconsistent with Article 11.3 of the Anti-
Dumping Agreement because it was based on an irrefutable presumption under US law that 
termination of the anti-dumping measure would be lik ely to lead to continuation or recurrence of 
dumping.  The unlawful presumption in US law is evidenced by the consistent practice of the 
Department in the conduct of sunset reviews. 
 
125. The Appellate Body in Steel from Germany  explained that while it would be difficult for a 
single case to serve as conclusive evidence of the Department’s practice, a comprehensive 
examination of all US sunset reviews and an analys is of the methodology used by the Department in 
those reviews might provide such an evidentiary basis: 
 
We are not persuaded that the conduct of a single sunset review can serve as 
conclusive evidence of USDOC practice, and thereby, of the meaning of United 
States law.  This is particularly so in the absence of information as to the number of 
sunset reviews that have been conducted, the methodology employed by USDOC in other reviews, and the overall results of such reviews. . . . Accordingly, the 
evidentiary foundation upon which the Eu ropean Communities sought to have the 
Panel draw an inference from USDOC practice seem to us to have been a weak 
one...
128 
126. Argentina has undertaken a review of all of  the Department’s sunset reviews in order to 
provide empirical evidence in support of its claims.  As of September 2003, the Department of 
Commerce has conducted 291 sunset reviews of anti-dumping duty orders.  Argentina has analyzed 
all 291 of these sunset reviews and has recorded the Department’s findings for each in Argentina’s 
Exhibit ARG 63, entitled, “US Department of Comme rce Sunset Reviews.”  Specifically, for each 
sunset proceeding, Argentina tr acked information falling under nine major categories: (1) “Title,” 
(2) “Case Number,” (3) “Date,” (4) “Outcome in Sunset Reviews in Which Domestic Industry 
                                                      
127 Panel Report , Sunset Review of Steel from Japan , para. 7.255. 
128 Appellate Body Report, Steel from Germany , para. 148 (footnote omitted). WT/DS268/R 
Page A-40  
 
 Participated,” (5) “Domestic Industry Participation,” (6) “F oreign Interested Party Participation,” 
(7) “Type of Proceeding,” (8) “Stated Basis for Like lihood Determination,” and (9) “Stated Basis for 
Determination of Likely Margin.”  Each of these ca tegories is represented as a heading on the table.
129 
 
127. For each of the sunset reviews in which the Department determined that dumping would be 
likely to continue or recur, Argentina analyzed and recorded the stated basis (or bases) for the 
Department’s determination, which included po tentially overlapping bases for the likelihood 
determination: (a) the existence of continued dumping margins  –  whether from the original 
investigation or an administrative review – as identified in the SAA and the Sunset Policy Bulletin ; 
(b) a finding that imports ceased  as identified in the SAA and the Sunset Policy Bulletin ; and (c) a 
decline in the volume of imports  as identified in the SAA and the Sunset Policy Bulletin . 
 
128. The Department’s reliance on these three factors to the exclusion of the prospective analysis 
required by Article 11.3 of the Anti-Dumping Agre ement is demonstrated by the Department’s 
consistent practice in sunset reviews.130 
                                                      
129 (1) “ Title ” simply refers to the title of the anti-dumping order that is the subject of the sunset 
review. (2) “ Case Number ” refers to the case number assigned to th e sunset review by the Department. (3) 
“Date ” refers to the date on which the Department issued its final results of the sunset review. (4) “ Outcome in 
Sunset Reviews in Which Domestic Industry Participated ” records whether, in the sunset proceedings in 
which the domestic industry participated, the Department issued a finding that dumping would be likely or not 
likely to continue or recur. (5) “ Domestic Industry Participation ” records whether a domes tic interested party: 
(a) participated in the sunset review; (b) did not respond to the notice of the initiation of the sunset review; or (c) 
responded to the notice of initiation, but later withdrew its participation from the sunset review. (6) “ Foreign 
Interested Party Participation ” records whether the foreign interested parties: (a) provided any response to the 
notice of initiation of the sunset review; (b) provided an “adequate” response to the notice of initiation of the 
sunset review pursuant to 19 C.F.R. § 351.218(e)(1)(ii)(A); (c) filed an affirmative statement of waiver, 
declining to participate in the sunset review; or (d) filed a response to the notice of initiation of the sunset review, but the Department considered its response to be “inadequate” by virtue of 19 C.F.R. § 
351.218(e)(1)(ii)(A). (7) “Type of Proceeding”
 records whether the Departmen t: (a) revoked the order within 
90 days; (b) conducted a “full” review pursuant to 19 C.F.R. § 351.218(e)(2); (c) conducted an “expedited” review pursuant to 19 USC. § 1675(c)(3)(B) and 19 C.F.R. § 351.218(e)(1)(ii)(C)(2); or (d) issued a mandatory 
likelihood determination pursuant to 19 USC. § 1675(c)(4)(B) and 19 C.F.R. § 351.218(d)(2).  (Please note that 
the Department frequently purports to conduct both an expedited review on the basis of the facts available and to issue a likelihood determination pursuant to the statutory mandate.  As a result, the occurrence rates of the 
four different types of sunset proceedings do not add up to 100 per cent in Exhibit ARG 63, as would be 
expected.  (8) “ Stated Basis for Likelihood Determination
” records, for the sunset  reviews in which the 
Department determined that dumping would be likely to continue or recur, the stated basis (or bases) for its determination.  There are four potentially overlapping bases for the likelihood determination: (a) the existence 
of continued dumping margins –  whether from the original investigation or an administrative review – pursuant 
to the SAA and the Sunset Policy Bulletin ; (b) a finding that imports ceased  pursuant to the SAA and the Sunset 
Policy Bulletin ; and (c) a decline in the volume of imports  pursuant to the SAA and the Sunset Policy Bulletin .  
The table also reflects a fourth category (d), which provides for a prospective analysis as required by 
Article 11.3 of the Anti-Dumping Agreement.  This category has no data because, it has never been undertaken by the Department. (9) “ Stated Basis for Determination of Likely Margin
” records for the sunset reviews in 
which the Department decided to continue the order, the stated basis for the Department’s  “likely margin” 
calculation.  The possible sources from which to derive the likely dumping margin are: (a) the original investigation and (b) an administrative review.  The table also reflects third category, (c), fresh information 
gathered during the course of the sunset review (i.e., a prospective analysis), as required by Article 11.3 of the 
Anti-Dumping Agreement.  There are no entries for this category as well. 
130  See US Department of Commerce Sunset Reviews (ARG-63).  Review of the 291 sunset reviews of 
anti-dumping duty orders conducted by the Department reveals the following.  In 217 of these reviews, at least 
one domestic interested party participated in the proceeding; the Department concluded that dumping would likely continue or recur in all of these reviews.  The Department revoked the order 74 times.  In 65 of these 
revocations, the domestic industry declined to participate in the proceeding, and in the remaining 9, the domestic 
industry responded to the notice of initiation of the sunset review, but later withdrew from the proceeding.  In  WT/DS268/R 
 Page A-41 
 
 
  
129. The results of Argentina’s analysis demonstrate the irrefutable presumption: 
 
• In 100 per cent of the sunset reviews in which a domestic interested party participated in the 
proceeding, the Department determined that dumping was likely to continue or recur; 
 
• In 100 per cent of the revocations issued by the Department, the domestic industry either did 
not participate in the sunset proceeding or subsequently withdrew from the sunset proceeding; 
 
• In 100 per cent of the sunset reviews for whic h the Department determined that dumping was 
likely to continue or recur, the Department failed  to conduct a prospective analysis, as required 
by Article 11.3 of the Anti-Dumping Agreement; 
 
• In 100 per cent of the sunset reviews for whic h the Department determined that dumping was 
likely to continue or recur, the Department cited the authority of the SAA and the 
Department’s Sunset Policy Bulletin ; 
 
• In 100 per cent of the sunset reviews for which the Department determined that dumping was 
likely to continue or recur, no respondent wa s able to overcome the irrefutable presumption 
that dumping would likely continue or recur established by the SAA and the Sunset Policy 
Bulletin  criteria ( i.e., existence of continued dumping margins, cessation of imports, or decline 
in volume). 
 
130. In 166 sunset proceedings, or well over ha lf of all sunset reviews conducted by the 
Department (57.4 per cent of the total number of sunset reviews), the Department applied the waiver 
provisions, which mandate that the Department “s hall conclude that revocation of the order or 
termination of the investigation would be likely to le ad to continuation or recurrence of dumping.”  
Such determinations cannot be defended as being objective – indeed the outcome is mandated by 
statute.  Respondents cannot overc ome the presumption, because the statute precludes the possibility 
of any analysis in such cases. 
 131. Argentina also analyzed and recorded the st ated basis for the Department’s “likely margin” 
determined by the Department and reported to the Commission.  The possible sources the Department 
used to determine the likely dumping margin are:  (a) the original investigation rate and (b) an 
administrative review rate.  The Department never us ed fresh information gathered during the course 
of the sunset review ( i.e., a prospective analysis), as required by Article 11.3 of the Anti-Dumping 
Agreement.  
132. The evidence once again speaks for itself: 
 
• In 100 per cent of the sunset reviews for whic h the Department determined that dumping was 
likely to continue or recur, the Department failed to calculate a current dumping margin derived from fresh information gathered during th e course of the sunset review (i.e., perform a 
prospective analysis), as required by Article 11.3 of the Anti-Dumping Agreement; and 
                                                                                                                                                                    
 
17 of the sunset reviews in which the Department concluded that dumping would likely continue or recur, the 
Department declined to allow a foreign interested party to participate, despite the fact that the party submitted a response to the notice of initiation.  In 77 per cent of the sunset proceedings in which the domestic industry 
participated (167 reviews), the Department indicated that it issued a finding that dumping would likely continue 
or recur pursuant to the statutory mandate of 19 USC. § 1675(c)(4)(B)(“waiver provision”).  In 88 per cent of the sunset proceedings in which the domestic industry participated (191 reviews), the Department stated that it 
conducted an expedited review on the basis of the facts available.  The Department undertook a full review in 
less than 10 per cent of the total sunset reviews it has conducted. WT/DS268/R 
Page A-42  
 
  
• In 100 per cent of the sunset reviews for whic h the Department determined that dumping was 
likely to continue or recur, the Department relie d on the margin from the original investigation 
or a previous administrative review as the basi s for its determination of the “likely” margin. 
 
133. In sum, to date there have been 217 suns et reviews conducted by the Department where the 
domestic industry has participated in  the Department’s sunset proceeding.
131  In 100 per cent of these 
cases the Department determined that dumpin g would be likely to continue or recur.132  Furthermore, 
as the basis for its likelihood determination in th ese cases, the Department referenced the SAA and 
Sunset Policy Bulletin  in 100 per cent of these cases, and cited at least one of the three criteria 
prescribed by the SAA and Sunset Policy Bulletin .133  Similarly, the Department relied on the SAA 
and the Sunset Policy Bulletin  in 100 per cent of the cases in determining the likely margin to prevail. 
 
134. In the four cases (less than 2 per cent) wher e the Department did not cite one of the three 
SAA/ Sunset Policy Bulletin  criteria as the sole basis for its lik ely dumping determination, it seemingly 
did so only because none of the criteria were present – and therefore the anti-dumping measure should 
have been terminated in those cases.134  Nevertheless, in each of those instances, the Department 
instead found “good cause” to consider other factor s pursuant to 19 USC. § 1675a(c)(2) and 19 C.F.R. 
§ 351.218(e)(2)(iii), and found alternative grounds for its determination that dumping would be likely to continue or recur.
135  Consequently, it is clear from a review of the Department’s sunset practice 
that the Department, in fact, does not conduct a review  and make a determination of whether expiry of 
the duty would be likely to lead to continuation or recurrence of dumping as required by Article 11.3. 
 135. A particularly egregious example of the Depart ment’s ritualistic and mechanical recitation of 
the SAA and Sunset Policy Bulletin  criteria to the exclusion of s ubstantive analysis of the actual 
likelihood of continuation or recurrence of dumping is the case involving Industrial Nitrocellulose 
from Yugoslavia .  In that sunset review, the Department conducted an expedited review based on the 
failure of the respondents to submit a response in the proceeding.  Following its consistent practice, 
the Department determined that revocation of the anti-dumping duty order would be likely to lead to 
continuation or recurrence of dumping at th e margins found in the original investigation.
136  The 
Department made no other factual inquiry during the review.  
136. In the Commission’s sunset review in the same case, however, the Commission determined 
that injury was not likely to continue or recur (despite the fact that the respondents also did not 
participate in the Commission’s sunset review).
137  The Commission relied on the fact that the sole 
                                                      
131 For purposes of this discussion, Argentina does not consider the instances in which no domestic 
interested party participated in the sunset proceeding to constitite a “review”  because, in such circumstance, the 
Department will simply terminate the anti-dumping order within ninety days of the notice of initiation without conducting a sunset review.  See 19 USC. § 1675(c)(3)(B)(ARG-1); 19 C.F.R. § 315.218(d)(1)(iii)(B)(ARG-3). 
132 US Department of Commerce Sunset Reviews (ARG-63). 
133 Id. 
134 Issues and Decision Memorandum for the Sunset Review of the AD Order on Gray Portland Cement 
and Cement Clinker from Venezuela  (Dep’t Comm., 18 February 2000)(p relim. results) at 3-5 (ARG-47); Issues 
and Decision Memorandum for the Sunset Review of the AD Order on Uranium from Russia  (Dep’t Comm., 
27 June 2000)(final results) at 15-17 (ARG-48); Issues and Decision Memorandum for the Sunset Review of the 
AD Order on Uranium from Uzbekistan  (Dep’t Comm., 27 June 2000)(final results) at 9-11 (ARG-49); Sugar 
and Syrups from Canada , 64 Fed. Reg. 48,362, 48,363-64 (Dep ’t Comm. 1999)(final results sunset 
reviews)(ARG-40). 
135 Id. 
136 Industrial Nitrocellulose from Yugoslavia,  64 Fed. Reg. 57,852, 57,853-54 (Dep’t Comm. 
1999)(final results suns et review)(ARG-42). 
137 Industrial Nitrocellulose from Brazil, China, France, Germany, Japan, Korea, the United Kingdom, 
and Yugoslavia , USITC Pub. 3342, Inv. No s. 731-TA-96 and 439-445 (August 2000) at 11 (ARG-53).  WT/DS268/R 
 Page A-43 
 
 
 Yugoslavian producer/exporter was no longer capable of exporting to the United States because the 
company’s sole production facility was destroyed as a result of military action, and US trade sanctions 
prohibited imports into the United States: 
 
The record of these reviews indicates that  the Yugoslav producer’s facilities were 
destroyed or severely damaged as a result of  military action and that the United States 
has continuing sanctions against imports from Serbia . . . .  We find, given the 
destruction of the only known INC production facility in Yugoslavia and the lack of 
any indication in the record of these reviews that Yugoslav INC production and 
exports to the United States are likely to re sume in the reasonably foreseeable future, 
that INC imports from Yugoslavia would be  likely to have no discernible adverse 
impact on the domestic industry.138 
137. Accordingly, it is clear to Argentina that when the Sunset Policy Bulletin  states that the 
Department “normally”139 will find likely dumping when any one of the three criteria (continued 
dumping margins; cessation of imports; or decline in  import volume) are present, this more accurately 
means that the Department will use any one of the three basic criteria140 in order to justify its results-
oriented likelihood conclusion.  At the same time, ho wever, it is clear that where none of the SAA and 
Sunset Policy Bulletin  criteria can be met in order to make a finding of likely dumping, the 
Department will nonetheless consider  alternative information in orde r to justify a finding of likely 
dumping.  Thus, because it is the Department’s cons istent practice to employ in its sunset reviews an 
irrefutable presumption of likely dumping, the United St ates is acting inconsistently with Article 11.3 
of the Anti-Dumping Agreement. 
 
2. The Statutory Provisions, 19 USC. §§ 167 5(c) and 1675a(c), implementing the US 
obligation under Article 11.3, cannot be in terpreted independently from the further 
instruction provided by the SAA and Sunset Policy Bulletin .  Taken together, the US 
Sunset Statutory Provisions, the SAA, and the Sunset Policy Bulletin  establish an 
irrefutable presumption that is inconsistent  with Article 11.3 of the Anti-Dumping 
Agreement 
138. In deciding whether dumping would likely continue or recur upon termination of an anti-
dumping duty order, the Department’s determination is governed by 19 USC. §§ 1675(c) and 
1675a(c), as well as the further inst ruction provided by the SAA and the Sunset Policy Bulletin .  The 
statutory provisions, 19 USC. §§ 1675(c) and 1675a(c), implementing the US obligation under 
Article 11.3, cannot be interpreted independently from the further instruction provided by the SAA and Sunset Policy Bulletin .  Taken together, the US sunset statutory provisions, the SAA, and the 
Sunset Policy Bulletin  prescribe a standard that is inconsiste nt with Article 11.3 of the Anti-Dumping 
Agreement. 
 
139. Methodologies and practice that prescribe a standard can be subject to WTO challenge.  In 
United States – Countervailing Measures Concerning Certain Products from the European 
                                                     
 
138 Id. 
139  The Sunset Policy Bulletin  states that “the Department normally will determine that revocation of 
an anti-dumping order or termination of a suspended dumping investigation is likely to lead to continuation or 
recurrence of dumping where [any one of the three prescribed situations is found].” Sunset Policy Bulletin  at 
18,872 (ARG-35). 
140 The three criteria are “(a) dumping continued at any level above de minimis  after the issuance of the 
order or the suspension agreement, as applicable; (b) imports of the subject merchandise ceased after issuance of 
the order or suspension agreement, as applicable; or (c) dumping was eliminated after the issuance of the order 
or the suspension agreement, as applicable, and import volumes for the subject merchandise declined 
significantly.”  Id. WT/DS268/R 
Page A-44  
 
 Communities  (“United States – CVDs on EC Products ”),
141 the Appellate Body upheld the Panel’s 
finding that a certain US practice, “the same pers on methodology, was inconsistent with the SCM 
Agreement,”142 both as such and as applied with respect to administrative and sunset reviews 
conducted under Articles 21.2 and 21.3, respectively.  As a result, the Appellate Body recommended 
that the United States bring its administrative pract ice into conformity with its obligations under the 
SCM Agreement.143  The Appellate Body also found that the administrative practice was inconsistent 
with sunset review rules under Ar ticle 21.3 of the SCM Agreement.144 
 
140. The administrative practice found to be WTO-inconsistent in United States – CVDs on EC 
Products  is similar in a key respect to the Department’s sunset review procedures and consistent 
administrative practice at issue in OCTG from Argentin a.  The Department’s consistent sunset review 
practice, in combination with guidance from the SAA and the Sunset Policy Bulletin , is also contrary 
to the obligation to conduct a “review” and ma ke a “determination” that is based on positive 
information. 
 
141. As noted above, the SAA provides the authoritative statement on how the United States will implement its obligations under the WTO Agreemen ts, including the Anti-Dumping Agreement and 
the GATT 1994.
145  Both US courts146 and WTO panels have recognized this point.  For example, the 
WTO panel in US Export Restraints , stated the following regarding the SAA: 
 
It is clear to us that the [Uruguay Round Agreements Act] grants to the SAA unique legal status as an authoritative interpretation of the URAA , which the US courts must 
take into account.  The text of the SAA confirms this by characterising itself as “an 
authoritative interpretation . . . both for pu rposes of US international obligations and 
domestic law.”
 147 
142. By outlining the instances in which the Department should determine that dumping is likely 
to continue or recur, the SAA clarifies the standard the Department will apply in making its likelihood 
decision pursuant to 19 USC. §§ 1675(c) and 1675a(c).  The SAA states:  
[19 USC. § 1675a(c)] establishes standards for determining the likelihood of continuation or recurrence  of dumping.  Under [§ 1675(c)(1)], Commerce will 
examine the relationship between dumping margins, or the absence of margins, and 
the volume of imports of the subject merchandise, comparing the periods before and 
after the issuance of an order or the acceptance of a suspension agreement.  For 
                                                     
 
141 WT/DS212/AB/R, adopted on 8 January 2003. 
142 Id. at para. 151 (emphasis in original). 
143 Id. at para. 162. 
144 Id. at para. 150. 
145 “[The SAA] represents an authoritative expression by the Administration concerning its views 
regarding the interpretation and application of the Uruguay Round agreements, both for purposes of US international obligations and domestic law.  Furthermore, the Administration understands that it is the 
expectation of the Congress that future Administrations will observe and apply the interpretation and 
commitments set out in this Statement.  Moreover, since this Statement will be approved by the Congress at the time it implements the Uruguay Round agreements, the interpretation of those agreements includes in this 
Statement carry particular authority.”  SAA at 656 (ARG-5). 
146 See, e.g.,  SKF USA, Inc. v. United States , 263 F.3d 1369, 1373 n.3 (Fed. Cir. 2001)(ARG-8)(“The 
SAA, of course, is more than mere legislative history.  Congress has instructed that ‘[t]he statement of 
administration actions approved by the Congress . . . shall be regarded as an authoritative expression by the 
United States concerning the interpretation and application of the Uruguay Round Agreements and [the Uruguay Round Agreements Act] in any judicial proceeding in which a question arises concerning such interpretation or 
application.’”); Micron Technology, Inc. v. United States , 243 F.3d 1301, 1305 n.3 (Fed. Cir. 2001)(ARG-7). 
147 Panel Report, US Export Restraints , paras. 8.97-8.98 (footnotes omitted).  WT/DS268/R 
 Page A-45 
 
 
 example, declining import volumes acco mpanied by the continued existence of 
dumping margins after the issuance of an order may provide a strong indication that, 
absent an order, dumping would be likely to continue, because the evidence would 
indicate that the exporter needs to dump to sell at pre-order volumes. 
. . . . [E]xistence of dumping margins after the order, or the cessation of imports after the 
order, is highly probative of the likel ihood of continuation or recurrence of 
dumping.
148 
143. In addition to the US statute and the SAA, the Sunset Policy Bulletin  provides further 
direction as to the methodology the Department will employ in deciding whether revocation of an anti-dumping duty order would likely lead to continuance or recurrence of dumping.  The US courts 
and federal agencies view the Sunset Policy Bulletin  as a distillation of, and similar in status to, the 
SAA.  The Department, for example, repeatedly describes the Sunset Policy Bulletin  as flowing 
directly from the legislative history surrounding the URAA, and, in particular, the SAA: 
 
Drawing on the guidance provided in th e legislative history accompanying the 
Uruguay Round Agreements Act (“URAA”), specifically the Statement of 
Administrative Action (“the SAA”), H.R. Doc. No. 103-316, vol. 1 (1994), the House 
Report, H.R. Rep. No. 103-826, pt. 1 (1994), and the Senate Report, S. Rep. No. 103-
412 (1994), the Department issued its Sunset Policy Bulletin  providing guidance on 
methodological and analytical issues, including the bases for likelihood 
determinations.
149 
144. Moreover, US courts have recognized that the Sunset Policy Bulletin  is a direct distillation of 
the SAA.  For example, in the context of reviewing the Department’s sunset determination in a CVD 
proceeding, the CIT in AG der Dillinger Huettenw erke v. United States150 cited the Sunset Policy 
Bulletin  and noted that “[t]he Sunset Policy Bulletin  parallels the language of the SAA.”151 
With regard to the Department’s likelihoo d determination in a sunset review, the Sunset Policy 
Bulletin  instructs that: 
 
[T]he Department normally will determine th at revocation of an anti-dumping order 
or termination of a suspended dumping inves tigation is likely to lead to continuation 
or recurrence of dumping where – 
(a) dumping continued at any level above de minimis  after the issuance of the order or 
the suspension agreement, as applicable; 
(b) imports of the subject merchandise ceased after issuance of the order or 
suspension agreement, as applicable; or 
                                                      
148 SAA at 889-90. 
149 E.g., Potassium Permanganate from the People’s Republic of China , 64 Fed. Reg. 16,907 (Dep’t 
Comm. 1999)(final results sunset review)(ARG-39). 
150 193 F. Supp. 2d 1339 (CIT 2002)(ARG-15a). 
151 Id. at 1351-52, and n.18. WT/DS268/R 
Page A-46  
 
 (c) dumping was eliminated after the issu ance of the order or the suspension 
agreement, as applicable, and import volumes for the subject merchandise declined 
significantly.
152 
146. These criteria are not surprising as they are th e natural consequences of the imposition of an 
anti-dumping measure.  In contra st to these factors, however, Article 11.3 of the Anti-Dumping 
Agreement directs that “any definitive anti-dumping duty shall be terminated on a date not later than 
five years from its imposition” un less the requirements for continuation of measure are satisfied.  
Article 11.3 establishes the principa l obligation that anti-dumping meas ures shall be terminated after 
the requisite five-year period.153  The United States fails to implement this obligation.  As 
demonstrated above, the irrefutable presumption established by the SAA and the Sunset Policy 
Bulletin  directs the Department to take an approach contrary to the requirements of Article 11.3.  
Indeed, rather than undertake a substantive analysis of whether expiry of the duty would be likely to 
lead to continuation or recurrence of dumping, th e SAA and Policy Bulletin direct the Department to 
apply a simple checklist in deciding whether dumpi ng would likely continue or recur.  Accordingly, 
the Department considers whether there are dumping margins (whether they exist from the original investigation or subsequent administrative review), whether imports of the subject merchandise ceased, and whether import volumes of the subject merchandise declined.    So long as the Department finds that any one of these three basic circumstances exists, the Department will forego analysis and simply conclude that dumping would be  likely to continue or recur.  Empirical evidence 
demonstrates the ease of finding that at least one of these criteria is satisfied.  Of the 217 sunset 
reviews
154 that the Department has conducted to date, the Department found that at least one of these 
three criteria was satisfied in 98.1 per cent of the cases.155 
 
147. Consequently, the Department’s Sunset Determ ination was inconsistent with Article 11.3 of 
the Anti-Dumping Agreement because it was based on an irrefutable presumption under US law that termination of the anti-dumping measure would be lik ely to lead to continuation or recurrence of 
dumping.  The unlawful presumption in US law is evidenced by the consistent practice of the 
Department in the conduct of sunset reviews. 
 
C. T
HE DEPARTMENT ’S DETERMINATION TO CONDUCT AND ITS CONDUCT OF AN EXPEDITED 
SUNSET REVIEW OF OCTG  FROM ARGENTINA , AND ITS APPLICATION OF THE WAIVER 
PROVISIONS TO SIDERCA , WERE INCONSISTENT WITH ARTICLES 11, 2, 6, AND 12 OF THE ANTI-
DUMPING AGREEMENT  
1. The Department’s determination to expedite the review of Argentina solely on the basis 
that Siderca’s shipments to the United Stat es constituted less than 50 per cent of the 
total exports from Argentina was inconsistent with the Anti-Dumping Agreement 
148. In this case, the Department deemed Siderca to have provided an “inadequate” response 
solely on the basis that the company’s OCTG export s to the United States were less than 50 per cent 
of the total OCTG exports from Argentina during the relevant period.  Accordingly, the Department 
purportedly decided to conduct an expedited sunset  review under US law and regulations.  Argentina 
contends that the decision to use the expedite d review procedures in this case precluded the 
                                                      
152 Sunset Policy Bulletin  at 18,872 (ARG-35). 
153 See Appellate Body Report, Steel from Germany , para. 88. 
154 For purposes of this discussion, we do not consider the instances in which no domestic interested 
party participated in the sunset proceeding to be a “review.”  As explained above, in such instance, the 
Department will simply terminate the anti-dumping order within ninety days of the notice of initiation without conducting a sunset review. See 19 USC. § 1675(c)(3)(B)(ARG-1); 19 C.F.R. § 351.218(d)(1)(iii)(B)(3)(ARG-
3). 
155 US Department of Commerce Sunset Reviews (ARG-63).  WT/DS268/R 
 Page A-47 
 
 
 Department from actually conducting a “review” and making a “determination” as required by 
Article 11.3.  Pursuant to 19 C.F.R. § 351.218(e )(ii)(c)(2), if the Department determines that a 
respondent interested party has not satisfied the 50  per cent exports threshold test, it will “normally” 
conduct an expedited sunset review based on “f acts available” without considering information 
submitted by such interested party and without further investigation. 
 
149. 19 USC. § 1675(c)(3)(B) provides that “if interested parties provide inadequate responses to a 
notice of initiation, the administering authority, w ithin 120 days after the initiation of the review, or 
the Commission, within 150 days after such initiation , may issue, without further investigation, a final 
determination based on the facts available . . . .”  150. In the Department’s determination to exped ite, it noted that “[d]uring the five-year period 
from 1995 to 1999, the combined-average annual per centage of Siderca’s exports of OCTG to the 
United States with respect to the total of exports of the subject merchandise to the United States was 
significantly below 50 per cent.”
156  Since this fell below the 50 per cent threshold that the 
Department “normally will consider to be an  adequate foreign response,” the Department 
recommended that Siderca’s response should be cons idered inadequate, and that an expedited review 
should be conducted.  The Department’s Issues and Decision Memorandum  stated: 
 
Without a substantive response from respondent interested parties in the cases of 
Italy, Japan, and Korea, and an inadequate  response in the case of Argentina, the 
Department, pursuant to 19 CFR 351.218 (e)(1)(ii)(C), determined to conduct 
expedited, 120-day reviews of these orders.157  
151. The Department’s determination to expedite  shows that it completely failed to conduct a 
“review” and to make a “determina tion” as required by Article 11.3 of the Anti-Dumping Agreement.  
In this sunset proceeding, Siderca was the only export er investigated in the original investigation, and 
it was the only exporter for which the US industry had requested a review after imposition of the anti-
dumping order between 1995 and 1999 (see Sections I.B. and II.A., above).  Yet the Department merely assumed that its import statistics were co rrect, and that Siderca must necessarily fail the 
“50 per cent threshold” test for adequacy.  The Department did nothing to resolve the apparent 
conflict in the data, but rather proceeded direct ly to an “expedited” review, and a “waiver” 
determination.  As explained above, these decisions led directly to an affirmative conclusion that dumping would likely continue or recur, without any substantive “review” or “determination.” 
 
152. Given the Department’s statement that it “did not receive an adequate response from 
respondent interested parties” (aga in, the reference is to all of th em, without qualification), coupled 
with the Department’s finding that Siderca did not submit an “adequate” response, the waiver 
determination seems to have a pplied to all respondent parties.
 158 
 
153. The Department’s analysis and conclusions seem to pertain to all of the respondent countries.  
The Department refers to “companies ,” “imports of subject merchandise,” “orders” – all in the plural 
without any other qualifying language.159  In addition, the Department stated that “respondent 
interested parties waived their right to particip ate in these reviews or failed to submit adequate 
                                                      
156 Oil Country Tubular Goods from Argentina:  Adequacy of Respondent Interested Party Response to 
the Notice of Initiation , A-357-810 (Dep’t Comm., 22 August 2000) at 2 (ARG-50). 
157 Issues and Decision Memorandum at 3 (ARG-51). 
158 See Issues and Decision Memorandum at 5(ARG-51)(“Therefore, given that dumping continued 
after the issuance of the orders, average imports continue d at levels far below pre-order levels from 1995 to 
1999, and respondent interested parties waived their right to participate in these reviews or failed to submit 
adequate substantive responses, we determine that dumping is likely to continue if the orders were revoked.”) . 
159 Issues and Decision Memorandum  at 5 (ARG-51). WT/DS268/R 
Page A-48  
 
 substantive responses.”  Then the Department refers, once again, to the failure of respondent 
companies “to submit adequate substantive response s.”  The Department’s discussion of Siderca’s 
comments that immediately follows represents almost  an afterthought that on its face did not affect 
the Department’s determination “that dumping is likely to continue if the orders were revoked” for all 
four countries. 
 
154. The only reason for the Department’s additional discussion regarding the likely margin for 
Siderca appears to be petitioners’ request that the Department use a higher rate than that from the 
original determination.  The petitioners wanted th e Department to use the petitioners’ suggested rate 
from the petition.  155. As demonstrated below, the Department  did not conduct a “review” or make a 
“determination” as required under Article 11.3 of the Anti-Dumping Agreement.  Moreover, the 
Department’s determination to conduct an expedited sunset review, and its conduct of an expedited 
review, solely on the basis of Siderca’s OCTG export s to the United States being less than 50 per cent 
of the total OCTG exports from Argentina to th e United States, were inconsistent with the 
requirements of Articles 11.3, 6,  and Annex II of the Anti-Dumping Agreement.  Notwithstanding 
Siderca’s full cooperation and submission of a co mplete substantive response consistent with the 
Department’s regulatory requirements, the Department deemed Siderca’s response to be inadequate 
solely on the basis of the company’s exports and, th erefore, that Siderca waiv ed its participation.  
Hence, the Department denied Siderca the opportunity to defend its interest.  
2. In the Expedited Sunset Review of OCTG fr om Argentina, and the application of the 
Waiver Provisions to Siderca, the Departmen t did not conduct a “review” or make a 
“determination” as required under Article 11.3 of the Anti-Dumping Agreement 
156. In the expedited sunset review of OCTG from Argentina, the Department’s determination of 
likelihood of dumping, and the likely level of such dumping, was inconsistent with Article 11.3 and 
Article 2 of the Agreement. As noted above, Artic le 11.3 requires a forward-looking analysis of the 
likelihood of continuation or  recurrence of dumping.  
 
157. In order to be consistent with Articles 11.1  and 11.3, Members must ensure that anti-dumping 
duties remain “in force only as long and to the extent necessary to counteract dumping which is 
causing injury.”  In order to fulfill this obligatio n, Members must conduct a substantive review of 
current facts and make a meaningful, prospective,  determination as required by the Anti-Dumping 
Agreement.
160  In this case, the Department did not collect any new data to determine whether 
termination would likely lead to continuation or recurrence of dumping.  The Department determined 
that Siderca’s response to the notice of initiation of  a sunset review was inad equate because it did not 
meet the 50 per cent test set out in the Department’s anti-dumping regulations.  The Department 
therefore conducted an expedited sunset review withou t gathering and analyzing the relevant facts, as 
required by Article 11.3.  In additio n, the Department deemed Siderca to have waived its participation 
in the sunset review, and therefore issued a statutorily mandated finding of likely dumping.  Thus, the 
Department did not fulfill its obligation to conduct a “review” make a “deter mination” pursuant to 
Article 11.3. 
 
158. In accordance with the mandate established by the SAA and the Sunset Policy Bulletin , during 
the sunset review the Department used the rate of dumping established in the original investigation, 
and did not gather or evaluate additional facts at the time of the sunset review.  The conduct of the 
expedited review regulation and the application of the waiver provisions thus violated Article 11.3 
                                                      
160 See discussion regarding reviews under the SCM Agreement in Appellate Body Report, United 
States – Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Steel Products 
Originating in the United Kingdom , WT/DS138/AB/R, adopted 7 June 2002, para. 53 (“ Lead from UK ”).  WT/DS268/R 
 Page A-49 
 
 
 because the Department did not establish a “sufficient factual basis” for its determination in the sunset 
reviews.  The Department did not rest its determina tion “on the evaluation of the evidence that it ha[d] 
gathered during the original investigation, the intervening reviews and finally the sunset review.”161  
In fact, the Department did not conduct an administrative review, and denied, by virtue of the waiver, 
Siderca’s right to participate in the sunset review .  The Department further violated Article 11.3 
because it merely used the rate established in original investigations, rather than making a “fresh 
determination, based on credible evidence.”162  An investigating authority  must have a “sufficient 
factual basis” to allow it to draw “reasoned and adequate conclusions” concerning the likelihood of 
continuation or recurrence of dumping.163 
 159. The Department did not use Si derca’s recent sales or cost data  to calculate an up-to-date and 
accurate anti-dumping margin.  Instead, the Department used only findings from the original 
investigation to “determine” whether termination of  the order would likely l ead to a continuation or 
recurrence of dumping. 
 
160. The reasoning of the Appellate Body in Steel from Germany  provides authoritative guidance 
as to the nature of a sunset review where the rate of dumping at the time of the sunset review is very 
low:  “[t]here must be persuasive evidence that the revocation of the duty would nevertheless lead to 
injury to the domestic industry.  Mere reliance by  the authorities on the injury determination made in 
the original investigation will not be sufficient.”
164  Indeed, on the contrary, Article 11.3 of the Anti-
Dumping Agreement requires investigating authorities to determine165 whether “the expiry of the duty 
would be likely to lead to continuatio n or recurrence of dumping and injury.” 
 
161. In Steel from Germany , the panel held that a “sufficient factual basis” for the purposes of 
sunset reviews “should rest on the evaluation of the evidence that it has gathered during the original 
investigation, the intervening reviews and finally the sunset review.”166  The panel further confirmed 
that in sunset reviews, “an investigating authority should collect relevant facts and base its likelihood 
analysis on those facts . . . .   Such relevant fact s may be in the possession of either the investigating 
authorities or the interested parties.”167  Even though the authorities must make a prospective 
assessment, their determination “must itself have an adequate basis in fact”168 at the time of the 
review. 
 
162. The panel stated in Steel from Germany  that “one of the components of the likelihood analysis 
in a sunset review under Article 21.3 is an assessmen t of the likely rate of subsidization” – or under 
Article 11.3 of the Anti-Dumping Agreement, the rate of dumping.169  In Steel from Germany , the 
panel held as follows:  
The facts necessary to assess the likelihood of  subsidization in the event of revocation 
may well be different from those which must be taken into account in an original 
investigation.  Thus, in as sessing the likelihood of subsidization in the event of 
revocation of the CVD, an investigating authority in a sunset review may well 
consider,  inter alia , the original level of subsidization, any changes in the original 
subsidy programmes, any new subsidy programmes introduced after the imposition of 
                                                     
 
161 Panel Report, Steel from Germany , para. 8.95. 
162 Appellate Body Report, Steel from Germany , para. 88. 
163 Panel Report, Sunset Review of Steel from Japan , para. 7.177. 
164 Appellate Body Report, Steel from Germany , para. 88 (emphasis added). 
165 See discussion in section VII.A.1 above. 
166 Panel Report, Steel from Germany , para. 8.95. 
167 Id. at para. 8.115. 
168 Id. at para. 8.96. 
169 Id. WT/DS268/R 
Page A-50  
 
 the original CVD, any changes in government policy, and any changes in relevant 
socio-economic and political circumstances.
170 
163. As noted above, because the facts and circumstances in the original investigation may differ 
from those existing at the time of the sunset re view, the investigating authority must gather and 
evaluate updated facts and current information du ring the sunset review in order to make the 
substantive and meaningful determination required under Article 11.3 of the Anti-Dumping 
Agreement.  The Appellate Body explained the obligations related to sunset provisions (albeit in the 
context of the SCM Agreement):  
 
Article 21.3 reflects the application of the ge neral rule set out in Article 21.1 – that a 
CVD shall remain in place only as long as necessary – in the specific instance where 
five years have elapsed since the imposition of a CVD.  Article 21.2 reflects the same 
general rule in a different circumstance, when a reasonable period has elapsed since 
the imposition of the duty, and it is deemed necessary to review the need for the 
continued imposition of the duty. We also note that one of the principal objects of the SCM Agreement is to regula te the imposition of CVD measures.  Article 21.3 
effectuates that purpose by providing that after five years, a CVD should be 
terminated unless the investigating authorities  determine that there is a likelihood of 
continuation or recurrence of subsidisation and injury.
171 
164. The Department’s determination to conduct an expedited sunset review, its conduct of an 
expedited review, and the application of the waiver pr ovisions to Siderca, were inconsistent with US 
obligations under the Anti-Dumping Agreement.  The Department rendered a determination of 
likelihood of continuation or recurrence of dumping w ithout any analysis, in violation of Article 11.3 
of the Anti-Dumping Agreement, which requires the au thority to conduct a review in order to make a 
determination of whether termination of the duty would be likely to lead to continuation or recurrence 
of dumping and injury.  In the absence of the requ isite analysis and a determination based on positive 
evidence, the anti-dumping measure on OCTG from Argentina should have been terminated.  
 
165. Argentina recalls the Appellate Body’s statement in Steel from Germany :  “If [a WTO 
Member] does not conduct a sunset review, or, having conducted such a review, it does not make such 
a positive determination, the duties must be terminated.”172 
 
3. The Department’s Expedite d Sunset Review and the application of the Waiver 
Provisions to Siderca were inconsistent with US obligations under Articles 11 and 6 
166. Article 6.1 of the Anti-Dumping Agreement manda tes that “all interested parties in an anti-
dumping investigation shall be given . . . ample op portunity to present in writing all evidence which 
they consider relevant in respect of the investigation in question.”  167. The conduct of the expedited review and the application of the waiver provisions to Siderca, 
in the sunset review of OCTG from Argentina violated Article 6.1 because it prevented Siderca from 
presenting evidence for meaningful consideration by the Department regarding the likelihood of 
continuation or recurrence of dumping in order to inform its determination under Article 11.3.  The 
Department acknowledged that Siderca both filed a complete substantive response to the notice to 
initiate a sunset review, and notifie d its willingness to participate fully in the instant sunset review.
173  
                                                      
170 Id. 
171 Id. at para. 8.91. 
172Appellate Body Report, Steel from Germany , para. 63. 
173 Oil Country Tubular Goods from Argentina: Adequacy of Respondent Interested Party Response to 
the Notice of Initiation , A-357-810 (Dep’t Comm., 22 August 2000)(ARG-50).  WT/DS268/R 
 Page A-51 
 
 
 Nevertheless, the Department ignored the information presented by Siderca.  Thus, the company 
hardly had an “ample opportunity to present . . . ev idence which [it] consider[ed] relevant” when the 
Department deemed Siderca to have waiv ed its right to participate at all. 
 
168. The conduct of the expedited review and the application of the waiver provisions to Siderca in 
the sunset review of OCTG from Argentina also violated Article 6.2, because Siderca did not have a 
full opportunity to defend its interests.  In particul ar, Siderca could not defend its interests because the 
Department deemed Siderca to have waived its right to participate. 
 
169. Moreover, when the margin of dumping is small – as in the case when the margin is 1.36 per cent – the investigating authority must gather and evaluate “persuasive evidence” in order to justify a determination that the revocation of the duty would lead to injury to the domestic industry, 
and “mere reliance” by the authorities on determinati ons made in the original investigation will not be 
sufficient.
174  The Department’s conduct of  an expedited review and its application of the waiver 
provisions violated both aspects of this standard.  First, the Department did not collect any evidence – 
to say nothing of “persuasive evidence” – that woul d justify a determination (ultimately, made by the 
Commission) that the revocation of the duty would nevertheless lead to injury to the domestic 
industry.  Second, instead of conducting a fresh determination based on credible evidence, the 
Department did exactly what has been ruled not to be sufficient: it relied exclusively on the 
determination made in the original investigation. 
 170. The drafters of the Anti-Dumping Agreement provided for the use of “facts available” as a last resort when investigating authorities are fa ced with recalcitrant and uncooperative parties.  
Article 6.8 and Annex II permit an investigating authority to make determinations based on “facts 
available” only when an interested party “refuses access to, or otherwise does not provide, necessary 
information within a reasonable period or significan tly impedes the investigation.”  The Department’s 
conduct of an expedited sunset review for OCTG from Argentina violated Article 6.8 of the Anti-
Dumping Agreement because the Department applie d facts available based on Siderca’s alleged 
failure of the Department’s “50 per cent threshold” test.  In doing so, the Department acted 
inconsistently with Article 6.8 and Annex II, which do not permit the use of “facts available” in such 
situations.  Even worse, the Department did nothing to resort to facts available in a way consistent 
with the Anti-Dumping Agreement.  The Department  constrained its determination to some specific 
facts.  In the instant case, it looked for the presence of any of the three criteria prescribed in the SAA 
as “highly probative” of a likelihood of continuation  or recurrence of dumping, and when it found one 
of them, the Department made a final determinatio n of likelihood or recurrence of dumping on the 
basis of this arbitrary criterion.  As a result, in the sunset determin ation of OCTG from Argentina, the 
Department decided not to comply with the principa l obligation in Article 11.3 (termination of the 
measure) because: (1) the Department found as a fact available that Siderca had stopped shipping to 
the US market after the imposition of the 1995 anti- dumping order, which is one of the criteria cited 
in the SAA as “highly probative” of a likelihood of continuation or recurrence of dumping; and (2) the 
Department resorted to another fact available in the file, the 1.36 per cent dumping margin calculated 
for Siderca during the 1994/95 investigation, which the Department considered to be conclusive of the 
likelihood of future dumping and the extent of the future dumping. 
 
171. In sum, the conduct of the expedited review, and the application of the waiver provisions to 
Siderca in the sunset review of OCTG from Argentin a violated US obligations under Article 6 of the 
Anti-Dumping Agreement, by virtue of the cross-refe rence contained in Article 11.4.  The conduct of 
an expedited review and the application of the wa iver provisions violated Article 6.1 because it 
precluded Siderca from being able to present eviden ce.  The conduct of an expedited review and the 
application of the waiver provisions denied Siderca the ability to defend its interest in sunset reviews 
in violation of Article 6.2.  Finally, the conduct of  an expedited review resu lted in the application of 
                                                     
 
174 See Appellate Body Report, Steel from Germany , para. 88 (emphasis added)(footnote omitted). WT/DS268/R 
Page A-52  
 
 facts available in a manner inconsistent with the requirements of Article 6.8 and Annex II of the 
Agreement. 
 4. The Department’s Determination to Ex pedite and the Department’s Sunset 
Determination in the Sunset Review of OCTG  from Argentina were inconsistent with 
Article 12 of the Anti-Dumping Agreement 
172. Article 12.3 provides that the Article 12 discip lines on notice and explanations apply to sunset 
review proceedings under Article 11:  “The  provisions of [Article 12] shall apply mutatis mutandis  to 
the initiation and completion of sunset re views pursuant to Article 11 . . . .” 
 173. Article 12 of the Anti-Dumping Agreement requ ires the administering authority to provide 
public notice and transparent explanations of its  anti-dumping determinations, including both  
preliminary and final determinations in a sunset review.  Specifically, the requirements for these 
determinations in a sunset review are set forth in Article 12.2, which states in relevant part that 
“[public] notice shall set forth, or otherwise make available through a separate report, in sufficient 
detail the findings and conclusions reached on all issu es of fact and law considered material by the 
investigating authorities.”  Article 12.2.2 further amplifies Article 12.2: 
 
A public notice of conclusion . . . of an investigation in the case of an affirmative 
determination providing for the imposition of  a definitive duty . . . shall contain, or 
otherwise make available through a separate report, all relevant information on the matters of fact and law and reasons whic h have led to the imposition of final 
measures . . . .  In particular, the notic e or report shall contain the information 
described in subparagraph 2.1. . . . 
174. The Department provided public notice of it s sunset review of OCTG from Argentina in its 
Department’s Determination to Expedite, and the Department’s Sunset Determination, which 
incorporated the Department’s Issues and Decision Memorandum by reference.  The Department’s 
notice and explanations in these documents were in consistent with the Department’s obligations under 
Articles 12.2 and 12.2.2 in several respects. 
 
175. Because Siderca’s total exports  of OCTG to the United States (zero exports) were less than 
50 per cent of total OCTG exports from Argentina to the United States, the Department determined 
Siderca’s response to be “inadequate.”  The Depa rtment then determined that because Siderca’s 
response was inadequate, the company had “waived” its right to participate in the sunset review.
175  
The Department deemed Argentina to have waived its right to participate either because of  an 
“inadequate” response to the initiation notice.176 
 
176. The Department’s notice violat es the requirements of Article 12.2 because it is impossible to 
discern the actual basis for the Department’s determination – whether on the “waiver” provision, 
19 USC. § 1675(c)(4), or the “facts available” prov ision, 19 USC. § 1675(c)(3)(B).  The Department’s 
determination purports to rely on both.  As explai ned above in the introduction to Section VII, these 
provisions are mutually exclusive, and both ca nnot serve as the basis for the Department’s 
determination to conduct an expedited review and to make the required determination under 
Article 11.3.  
177. The Department’s Sunset Determination also violated Article 12.2. 
 
                                                     
 
175 Oil Country Tubular Goods From Argentina:  Adequacy of Respondent Interested Party Response 
to the Notice of Initiation , A-357-810 (Dep’t Comm., 22 August 2000)(ARG-50). 
176 Issues and Decision Memorandum  at 4-5 (ARG-51).  WT/DS268/R 
 Page A-53 
 
 
 178. First, the Department’s public notice does not transparently set forth its “conclusions reached 
on . . . issues of fact and law” in contravention of its obligation under Article 12.2.  In particular, the 
actual basis for the Department’s affirmative likelihood determination is not discernible from its 
public notice.  As discussed above , the Department stated in its Issues and Decision Memorandum  
that it considered Siderca’s inadequate respons e to constitute a waiver of participation under 
19 C.F.R. § 351.218(d)(2), indicating that it is sued a determination of likelihood pursuant to the 
mandate of 19 USC. § 1675(c)(4)(B).  The Issues and Decision Memorandum  also states, however, 
that the Department made its likelihood determinatio n on the basis of the facts available pursuant to 
19 C.F.R. § 351.218(e)(1)(ii)(C).  Thus, the Departme nt’s public notice does not transparently explain 
whether it issued its likelihood determination pursua nt to statutory mandate or made a determination 
based on the facts available.177  Accordingly, the Department violated Article 12.2 by not clearly 
setting forth the basis for its likelihood determination in the public notice. 
 
179. Second, the public notice of the sunset review of OCTG from Argentina does not contain “all 
relevant information on the matters of fact . . . whic h have led to the imposition of final measures[,]” 
as required by Article 12.2.2.  As discussed previous ly, Article 11.3 requires th e Department to collect 
and evaluate current information during the sunset  review.  In its sunset review of OCTG from 
Argentina, however, the Department relied complete ly on information obtained during the original 
investigation.  Thus, its public notice of the conc lusion of the sunset review did not contain “all 
relevant information on the matters of fact.”  For example, as the f actual basis for its likely margin 
determination, the Department noted in its Issues and Decision Memorandum  that Siderca’s dumping 
margin had not decreased over the life of the anti- dumping order.  The Depa rtment, however, had not 
conducted any administrative reviews of OCTG from Argentina since issuance of the order, nor did it 
gather fresh information during the course of the sunset proceeding in order to calculate a current 
dumping margin for Siderca.  Thus, the Department did not have any positive evidence to support its 
finding that Siderca’s dumping margin had not decreased.  Consequently, by not including any 
relevant information to support its factual dete rmination that Siderca’s dumping margin had not 
decreased in its public notice, the Department acted inconsistently with its obligations under 
Article 12.2.2. 
 
180. Finally, the Department violated Article 12 .2.2 by not including in its public notice the 
“information described in subparagraph 2.1.”  Among other information, subparagraph 2.1 of 
Article 12 requires that public notice of a final de termination in a sunset review contain “the margins 
of dumping established and a full explanation of the reasons for the methodology used in the 
establishment and comparison of the export price and the normal value under Article 2 
[(Determination of Dumping ).]”  As noted above, however, during the course of its sunset review of 
OCTG from Argentina, the Department did not undert ake a fresh analysis based on updated facts of 
whether Siderca was currently dumping.  Instead, as the Department explained in its Issues and 
Decision Memorandum , it simply relied on the dumping margin found for Siderca in the original 
investigation.  As a result, the Department’s public notice of conclusion of the sunset review of 
OCTG from Argentina is completely devoid of any information concerning the calculation of a 
dumping margin under Article 2, contrary to the United States’s obligations under Article 12.2.2. 
 
D. ARTICLE 11.3  ESTABLISHES PARAMETERS FOR THE ARTICLE 11.3  OBLIGATION :  ARTICLE 2 
DISCIPLINES APPLY ; REVIEWS ARE PROSPECTIVE IN NATURE AND THUS REQUIRE FRESH 
INFORMATION ; DUMPING MUST BE “PROBABLE ;” REVIEWS ARE SUBJECT TO THE EVIDENTIARY 
REQUIREMENTS OF ARTICLE 6; AND THE LIKELY DETERMINATION MUST BE BASED ON 
                                                      
177 Moreover, this implausible result was not limited to the sunset review of OCTG from Argentina.  In 
the public notifications of the final results of 166 sunset reviews, the Department indicated that it issued both an expedited likelihood determination on the basis of the facts available and a likelihood determination pursuant to 
statutory mandate, a result that is impossible on its face.  See US Department of Commerce Sunset Reviews 
(ARG-63). WT/DS268/R 
Page A-54  
 
 POSITIVE EVIDENCE .  THE DEPARTMENT FAILED TO SATISFY THESE OBLIGATIONS IN ITS 
LIKELIHOOD DETERMINATION AND WITH REGARD TO THE LIKELY MARGIN REPORTED TO THE 
COMMISSION  
181. The Department’s reliance on the 1.36 per cent anti-dumping margin established in the 
original investigation back in 1995 simply ca nnot serve as a legal basis for the Department’s 
determination that dumping would be likely to continue  or recur.  In deed, that  rate is less than the 
2 per cent de minimis  rate of the Anti-Dumping Agreement and, therefore, would not support a 
finding in a new investigation.  Furthermore, the 1.36 per cent margin – calculated on the basis of the 
Department’s practice of “zeroing” negative dumping margins – results in a flawed dumping margin 
that cannot serve as a legal basis for the Department’s  likelihood determination.  Nor can the fact that 
Siderca stopped shipping to the United States fo llowing the imposition of the Antidumping measure – 
one of the SAA/ Sunset Policy Bulletin  checklist items –  be considered  positive evidence of likely 
dumping in the event of termination of the anti- dumping measure, as required by Article 11.3. 
 1. The Department’s likelihood determination is inconsistent with the Anti-Dumping 
Agreement 
182. Article 11.3 establishes parameters for th e obligation of WTO Members to conduct a review 
and make a determination of whether expiry of the duty would be likely to lead to continuation or 
recurrence of dumping after the measure has been in place five years: 
 
- First, the rules of Article 2 apply to reviews conducted under Article 11.3 
because the Article 11.3 analysis en tails a determination of whether 
“dumping” is likely.  Article 2 makes clear that its rules regarding 
determinations of dumping are esta blished “for the purpose of [the 
Antidumping] Agreement,” which includes Article 11.3. 
- Second, the Article 11.3 analysis is pr ospective in nature, which means that 
the determination cannot be based on stale information, but rather must be based on “fresh” data indicative of whether future dumping would be likely 
in the event of termination. 
- Third, the requirement in Article 11.3  that continuation or recurrence of 
dumping must be “likely” in the event of termination means that the 
continuation or recurrence of dumping must be “ probable. ”  Hence, it is not 
sufficient that dumping would be “possible.”  Dumping must be more 
probable than not to satisfy the Article 11.3 standard. 
- Finally, in addition to the above, an y such determination under Article 11.3 
must be based on positive evidence and, pursuant to Article 11.4, must satisfy 
“the provisions of Article 6 regarding evidence and procedure.” 
183. First, Article 2 of the Anti-Dumping Agreement establishes the rules for dumping 
determinations “for the purpose of  this Agreement.”  Article 2 sets  forth the rules for determining 
whether a company is or is not dumping.  Therefore, in the conduct of a review conducted under 
Article 11.3, the administering authority in satisfyi ng this obligation must resort to disciplines in 
Article 2. 
 
184. Second, the analysis required by Article 11.3 is prospective in nature.  Therefore, the 
authorities need to rely on current information to  make a prospective analysis of whether dumping 
would be likely to continue or recur.  Exclusive reliance on 5 year old data from an original 
investigation cannot satisfy this standard.  In th e expedited sunset review of OCTG from Argentina,  WT/DS268/R 
 Page A-55 
 
 
 the Department’s determination of likelihood of dumping and the likely level of such dumping 
violated Article 11.3 and Article 2 of the AD Agreement because it was based upon past information 
not determinative of future dumpin g.  In accordance with US law, the Department did not collect new 
data to determine whether termina tion would likely lead to continuation or recurrence of dumping.178  
Only by first requesting and then carefully reviewing current information could the Department 
reliably assess, in a WTO-c onsistent manner, the “likelihood” of future dumping and the level of any 
“likely” margin if the order were terminated.  The Department’s reliance on stale information 
necessarily resulted in speculation as to whether or  not dumping would be likely to continue or recur 
were the order to be revoked. 
 185. As the Panel in Sunset Review of Steel from Japan  observed: 
 
Indeed, this textual difference leads us to  conclude that evidence relating to the 
existence (or absence) of dumping that may be examined by an investigating 
authority under Article 11.3 is not limited to
 a full-blown determination of dumping 
made pursuant to Article 2.  That Article 2 may inform the  type  of information that an 
investigating authority may consider releva nt for the purposes of an Article 11.3 
sunset review likelihood determination does not, in our view, impose an obligation 
upon an investigating authority in a sunset review that relies upon evidence relating to 
dumping since the impositio n of the order to rely only upon a determination of 
dumping that fully conforms to the dictates of Article 2. 
By this, we do not mean to say that the Anti-Dumping Agreement is devoid of any 
obligation governing the requisite nature of a sunset review likelihood determination.  
The text of Article 11.3 contains an obligation “to determine” likelihood of 
continuation or recurrence of dumping.  The requirement to make a “determination” 
concerning likelihood therefore precludes an investigating authority from simply 
assuming that likelihood exists.  In order to continue the imposition of the measure 
after the expiry of the five-year imposition period, it is clear that the investigating 
authority has to determine, on the basis of positive evidence, that termination of the 
duty is likely to lead to continuation or recurrence of dumping.  An investigating 
authority must have a sufficient factual basis to allow it to draw reasoned and 
adequate conclusions concerning the likelihood of such continuation or recurrence.179 
186. Third, the ordinary meaning of the term “likely”  as used in Article 11.3 is “probable.”  Both 
the connotative and denotative meaning of the term “likely” are the same.  Blacks Law Dictionary  
defines the term “likely” as “[p] robable” and “[i]n all probability.”180  Webster’s Dictionary  provides 
a similar definition, equating the term “likely” to something being “probable” and having a “high 
probability” of occurring or bei ng true or being “very probable.”181  Consequently, in accordance with 
the evaluation required by Article 11.3, if the eviden ce indicates that dumping is unlikely – or if the 
evidence is inconclusive – upon the expiry of the order, the Department cannot conclude that dumping 
would be “likely.”  It is not sufficient that du mping would be “possible;” dumping must be more 
probable than not to satisfy  the Article 11.3 standard. 
                                                      
178 US law provides that when the Department issues an affirmative dumping determination in a sunset 
review, the Department shall provide to the Commission a calculation of the magnitude of the dumping margin 
likely to prevail if the anti-dumping order is revoked.  See 19 USC. § 1675a(c)(3)(ARG-1).  Instead of 
calculating a dumping margin based on current information, the Department referenced information from its 
original determination. 
179 Panel Report, Sunset Review of Steel From Japan , paras. 7.176-7.177. 
180 Black’s Law Dictionary 834 (5 th ed. 1979)(ARG-61)(citing Horning v. Gerlach , 139 Cal. App. 470, 
34 P.2d 504, 505 and Neely v. Chicago Great Western R. Co. , Mo. App., 14 S.W.2d 972, 978). 
181 Webster’s New Collegiate Dictionary 660 (1979)(ARG-62). WT/DS268/R 
Page A-56  
 
  
187. Finally, Article 11.4 states that “[t]he provisions of Article 6 regarding evidence and 
procedure shall apply to any review carried out under this Article.”  Any determination under 
Article 11.3 must be based on po sitive evidence and be consistent with the evidentiary requirements 
of Article 6.  As set forth above in detail, the De partment’s determination that Siderca’s response was 
inadequate and therefore the company had waived its pa rticipation in the sunset review is inconsistent 
with the requirements of Article 6.  
 
188. In sum, regarding the Department’s likelihood determination, the Department cannot rely on 
the 1.36 per cent anti-dumping margin established (based on the practice of zeroing) in the original 
investigation as the basis for a determination that du mping would be likely to continue or recur.  How 
does this determination apply Article 2 disciplines?  How is it the result of a prospective analysis?  
How can it possibly be considered to be “likel y”?  And where is the evidence to support the 
Department’s determination? 
 
2. The likely margin of dumping of 1.36 per cent determined by the Department and 
reported to the Commission 
189. The Department determined that if the or der were revoked, the likely dumping margin to 
prevail would be 1.36 per cent.  This margin was calculated by the Department in the original 
investigation based on its practice of “zeroing” negative dumping margins.
182  The margin was then 
reported to the Commission for purposes of the Commission’s sunset review and its likelihood 
determination.  The Department’s calculation of this margin violated Article 11.3 and Article 2 of the 
Agreement. 
 
190. Article 2 of the Anti-Dumping Agreement applies to reviews conducted under Article 11 
because Article 2.1 defines “dumping” “for the purpo ses of the Agreement.”  Thus, the definition of 
the term “dumping” for the purposes of Article 11 is established under Article 2, and the authorities 
conducting a sunset review are required to comply  with the disciplines se t out in Article 2.  
Consequently, once a Member undertakes either to calculate a dumping margin  or to rely on a 
dumping margin  – that margin must be consistent with the requirements of Article 2. 
 
191. In Steel from Germany , the Appellate Body ruled that in a sunset review, “in order to 
establish the continuing need for countervailing dutie s, an investigating authority will have to make a 
finding on subsidization , i.e., whether or not the subsidy continue s to exist.  If there is no longer a 
subsidy, there would no longer be any need for a countervailing duty.”183  The Appellate Body then 
went on to evaluate the existence of a subsidy under the substantive provisions of the SCM Agreement.  
192. Similarly, in order to establish in a sunset review whether a need continues to continue anti-
dumping duties, an investigating authority will have to make a finding on dumping, i.e. , whether or 
not subject imports continue to be dumped, and, if  so at what rate.  This evaluation requires an 
analysis that complies with the provisions of Articl e 2.  This is particularly important in the instant 
case when taking into account that the margin calcu lated in the original investigation was based on the 
practice of zeroing negative margins, which has be en found to be inconsistent with WTO rules on 
calculating dumping margins. 
                                                     
 
182 Dep’t Commerce Margin Calculations for Fi nal Determ. in OCTG from Argentina (A-357-
810)(ARG-52); see also Carbon Steel Flat Products from Korea , 63 Fed. Reg. 13,170, 13,174 (Dep’t Comm. 
1998)(final admin. review)(stating th at, under the Department’s practi ce, “negative dumping margins are 
systematically disregarded, because there is no basis in the anti-dumping law to use negative margins as an 
offset or a ‘credit’ against positive margins.”)(ARG-34). 
183 Appellate Body Report,  Lead from the UK , para. 54.  WT/DS268/R 
 Page A-57 
 
 
  
193. The Department failed to respect the disciplines of Article 2 in its determination of a margin 
of 1.36 per cent to report to the Commission as  the likely margin to prevail in the event of 
termination. 
 
E. THE UNITED STATES FAILED TO ADMINISTER IN AN IMPARTIAL AND REASONABLE MANNER 
US ANTI -DUMPING LAWS , REGULATIONS , DECISIONS AND RULINGS WITH RESPECT TO THE 
DEPARTMENT ’S SUNSET REVIEWS OF ANTI -DUMPING DUTY ORDERS , IN VIOLATION OF 
ARTICLE X:3( A) OF THE GATT  1994 
194. Argentina explains in sections  VIII.B.1. and B.2., above, that  the US law, the SAA, and the 
Sunset Policy Bulletin  establish an irrefutable presumption, as demonstrated by the Department’s 
consistent practice, that is incons istent with Article 11.3.  If the panel does not agree that the SAA and 
the Sunset Policy Bulletin  are measures that can be challenged, then Argentina submits that the United 
States failed to administer in an impartial an d reasonable manner US anti-dumping laws, regulations, 
decisions and rulings with respect to the Department ’s sunset reviews of anti-dumping duty orders, in 
violation of Article X:3(a) of the GATT 1994.  
195. As explained above, this argument is whol ly separate and apart from Argentina’s claims 
relating to whether certain aspects of US anti-dump ing laws and regulations regarding sunset reviews 
are inconsistent per se with US WTO obligations.  Moreover, whether the SAA and Sunset Policy 
Bulletin  constitute “measures” th at can be subject to challenge is not relevant to this claim.  The 
results of the Department’s sunset review determ inations, drawn from the Department’s own records, 
demonstrates that the Department failed to administer in an impartial and reasonable manner US anti-
dumping laws, regulations, decisions and rulings with  respect to the Department’s conduct of sunset 
reviews of anti-dumping duty orders, in violation of Article X:3(a) of the GATT 1994.  
 
1. Sunset reviews of anti-dumping duty orde rs are subject to GATT Article X:3(a) 
196. Article X:3(a) provides: 
 
Each [Member] shall administer in a unifor m, impartial and reasonable manner all its 
laws, regulations, decisions and rulings of the kind described in paragraph 1 of this 
Article. 
197. The “laws, regulations, decisions and rulings” are described in paragraph 1 of Article X as 
follows:  
 
Laws, regulations, judicial decisions and administrative rulings of general 
application, made effective by any [Member], pertaining to . . . rates of duty, taxes or other charges, or to requirements, restri ctions or prohibitions on imports . . . . 
198. Sunset reviews of anti-dumping duty orders  clearly fall within the types of laws and 
regulations enumerated in Article X:1.  In United States – Anti-Dumping Measures on Stainless Steel 
Plate in Coils and Stainless Steel Sheet and Strip from Korea, the Panel stated that “[t]here can be no 
doubt  that the US anti-dumping laws  and regulations are ‘laws’ and ‘regulations’ of general 
application ‘pertaining to . . . rates of duty, ta xes or other charges, or to other requirements, 
restrictions or other prohibitions on imports or exports’ within the meaning of Article X:1 of GATT 
1994 .”184 
                                                      
184 Panel Report, United States – Anti-Dumping Measures on Stainless Steel Plate in Coils and 
Stainless Steel Sheet and Strip from Korea , WT/DS179/R, adopted on 1 February 2001, para. 6.49 n.62 
(emphasis added) (“Steel from Korea”). WT/DS268/R 
Page A-58  
 
  
199. Because sunset reviews of an ti-dumping orders fall within the types of laws and regulations 
set out in Article X:1, they are subject to the disciplines of Article X:3(a). 
 
200. Recent panel reports have suggested that “for a Member's action to violate Article X:3(a) that 
action should have a significant impact on the overall administration of that Member's law and not 
simply on the outcome of the single case in question.”
185  For example, the Panel in Hot-Rolled Steel 
from Japan , in dismissing a claim under Article X:3(a),  noted that “Japan has not even alleged, much 
less established, a pattern of deci sion-making with respect to the specific matters it is raising which 
would suggest a lack of uniform, impartial and re asonable administration of the US anti-dumping 
law.” 186   By contrast, Argentina will establish a clear and undeniable “pattern of decision making” by 
US authorities with respect to the participation of the domestic industry.  In every instance in which 
the domestic industry participated in the sunset  review, the Department made an affirmative 
determination of likely dumping. 
 
201. Argentina would recall that the Bovine Hides Panel stated: 
 
Article X:3(a) requires an examination of the real effect that a measure might have on 
traders operating in the commercial world . This, of course, does not require a 
showing of trade damage, as that is gene rally not a requirement with respect to 
violations of the GATT 1994. But it can invo lve an examination of whether there is a 
possible impact on the competitive situation  due to alleged partiality, 
unreasonableness or lack of uniformity in the application of customs rules, 
regulations, decisions, etc.”187 
202. The following section will show the “real effect on traders operating in the commercial 
world” of the conduct of sunset revi ews by the Department of Commerce. 
 
2. The Department of Commerce sunset reviews violate GATT Article X:3(a) 
203. From the entry into force of the WTO Agreement until the present (September 2003), the 
Department of Commerce has conducted 291 sunset reviews of anti-dumping duty orders.  As 
discussed in Section VII.B.1. above, Argentina has analyzed all 291 of these sunset reviews and has 
recorded the Department’s findings for each  in Argentina’s Exhibit ARG-63, entitled, “US 
Department of Commerce Sunset Reviews.”188 
 
204. Argentina’s comprehensive analysis of all of the sunset reviews conducted by the Department 
demonstrates a lack of impartiality and reasonableness on the part of the United States in its 
administration of US anti-dumping laws, regulati ons, procedures, and pr actice relating to the 
Department’s conduct of sunset reviews of anti-dumping duty orders. 
 
205. According to the Department’s own records:   
 
                                                      
185 Panel Report, Sunset Review of Steel from Japan , para. 7.310. 
186 Panel Report, United States – Anti-Dumping Measures on Certain Hot-Rolled Steel Products from 
Japan , WT/DS184/R, adopted on 23 August 2001, para. 7.268 (“Hot-Rolled Steel from Japan”).  
187 Panel Report, Argentina – Measures Affecting the Export of Bovine Hides and the Import of 
Finished Leather , WT/DS155/R, adopted on 16 February 2001, para. 11.77 (“ Argentina – Bovine Hides ”) 
(emphasis added). 
188  See supra note 123 and accompanying text for an explanation of the methodology Argentina 
employed to construct Exhibit ARG-63.  WT/DS268/R 
 Page A-59 
 
 
 • In 100 per cent of the sunset reviews in which a domestic interested party participated in the 
proceeding, the Department determined that dumping was likely to continue or recur; 
 
• In 100 per cent of the revocations issued by the Department, the domestic industry either did 
not participate in the sunset proceeding or subsequently withdrew from the sunset proceeding; 
 
• In 100 per cent of the sunset reviews for whic h the Department determined that dumping was 
likely to continue or recur, the Department failed  to conduct a prospective analysis, as required 
by Article 11.3 of the Anti-Dumping Agreement. 
 206. As noted above in Section VII.B.1., the sunset review of Industrial Nitrocellulose from 
Yugoslavia  is particularly illustrative of the unreasonable and biased nature of the Department’s 
administration of its sunset review procedures.
189  
 
207. Moreover, as further evidence of the unreason able administration of the Department’s sunset 
review laws, regulations, pr ocedures and practices, in 19 sunset proceedings (including the review of 
the order on OCTG from Argentina), the Department denied a foreign interested party’s attempt to 
participate in the sunset proceeding on the sole basis that respondent’s total exports to the United 
States were less than 50 per cent of the tota l exports shipped to the United States from the 
respondent’s country during the five calendar  years preceding the notice of initiation. 
 
208. Such an arbitrary approach to making a determination as to whether even to permit  a 
respondent to defend its interests and participate in a sunset review cannot be regarded as reasonable.  
That the 50 per cent rule applies only to responde nts highlights the failure to apply the rule in an 
impartial manner. 
 209. An examination of this record shows the “real effect,” in this case the harmful effect, that the 
Department’s sunset reviews have on foreign trader s “operating in the commercial world.”  It is also 
clear that the Department’s consistent violations of  U.S obligations under Article X:3(a) impact on the 
competitive position of such foreign traders, given th e clear systemic bias against foreign traders in 
favor of US industry.  This also demonstrates the partiality and unreasonableness in the application by 
the Department of US sunset review laws. 
 
210. In sum, separate and apart from whether US  anti-dumping laws and regulations regarding 
sunset reviews are deemed to be consistent per se with US WTO obligations, and irrespective of 
whether the SAA and Sunset Policy Bulletin  are “measures” that can be subject to challenge, the data 
drawn from the Department’s own records demonstrates that the Department failed to administer in an impartial and reasonable manner US anti-dumping laws, regulations , decisions and rulings with 
respect to the Department’s conduct of sunset revi ews of anti-dumping duty orders, in violation of 
Article X:3(a) of the GATT 1994. 
 
                                                     
 
189 Industrial Nitrocellulose from Yugoslavia , 64 Fed. Reg. 57,852 (Dep’t Comm. 1999)(final results 
sunset reviews)(ARG-42); Industrial Nitrocellulose from Brazil, China, France, Germany, Japan, Korea, the 
United Kingdom, and Yugoslavia , USITC Pub. No. 3342, Inv. Nos. 731-TA-96 and 439-445 (August 2000) at 
11 (ARG-53). WT/DS268/R 
Page A-60  
 
 VIII.  THE COMMISSION’S SUNSET REVIEW WAS INCONSISTENT WITH THE ANTI-
DUMPING AGREEMENT AND THE GATT 1994 
A. I
N THE SUNSET REVIEW OF OCTG  FROM ARGENTINA , THE COMMISSION APPLIED AN 
INCORRECT STANDARD FOR DETERMINING WHETHER TERMINATION OF THE ANTI -DUMPING 
DUTY MEASURE WOULD BE “LIKELY TO LEAD TO CONTINUATION OR RECURRENCE OF . . . 
INJURY ” AND VIOLATED ARTICLES 11.3  AND 3.1 OF THE ANTI-DUMPING AGREEMENT  
211. The Commission failed to apply the correct standard for determining whether termination of 
the anti-dumping measure on OCTG from Argentina would be likely to lead to continuation or 
recurrence of injury.  The standard applied by the Commission led to an affirmative finding of injury 
based on speculation about “possible” injury190 or injury based on “a conc ept that falls in between 
‘probable’ and ‘possible’ on a co ntinuum of relative certainty.”191  The Commission failed to apply a 
“l i k e l y” s t an d a rd  i n  th e  su ns e t  r ev i ew  o f  O C TG from Argentina in violation of Article 11.3 of the 
Anti-Dumping Agreement. 
 
212. The ordinary meaning of the term “likely” as used in Article 11.3 is “probable” and not 
“possible” or any other standard less than “likely” (“probable”).  Both the connotative and denotative meaning of the term “likely” are the same.  Black’s Law Dictionary  defines the term “likely” as 
“[p]robable” and “[i]n all probability.”
192  Webster’s Dictionary  provides a similar definition, equating 
the term “likely” to something being “probable” a nd having a “high probability” of occurring or being 
true or being “very probable.”193  Similarly, Black’s Law Dictionary  defines the term “probable” as 
“likely.”194 
 
213. That the Commission generally applies a “possible” standard in all sunset reviews, including 
in OCTG from Argentina, is ba sed on the guidance in the SAA: 
 
The determination called for in thes e types of [sunset] reviews is inherently predictive 
and speculative .  There may be more than one likely outcome following revocation or 
termination.  The possibility of other likely outcomes  does not mean that a 
determination that revocation or termination is likely to lead to continuation or 
recurrence of dumping or countervailable subsidies, or injury is erroneous, as long as 
the determination of likelihood of continuation or recurrence is reasonable in light of 
the facts of the case.  In such situations, the order or suspended investigation will be 
continued.195 
214. The standard applied by the Commission in the review of OCTG from Argentina for 
determining whether revocation would be likely to  lead to continuation or recurrence of injury 
allowed for an affirmative finding of injury based si mply on speculation about “possible” injury in the 
absence of the anti-dumping measure.  As establis hed above, Article 11.3 states unambiguously that 
an anti-dumping duty order “shall be terminated” af ter five years unless such termination would be 
“likely to lead to continuation or recurrence of dumping and injury. ”   
                                                      
190 See SAA at 883 (ARG-5)(“There may be more than one likely outcome following revocation or 
termination.  The possibility of other likely outcomes does not mean that a determination that revocation or termination is likely to lead to continuation or recurrence of dumping or countervailable subsidies, or injury is 
erroneous…”). 
191 Int’l Trade Comm’n Remand Determ. Pursuant to Usinor Industeel S.A., et al v. United States , 
No. 01-00006, July 2002) at 7 (“ Unisor Remand Determinaton ”)(ARG-56). 
192 Black’s Law Dictionary 834 (5th ed. 1979)(ARG-61)(citing Horning v. Gerlach , 139 Cal. App. 470, 
34 P.2d 504, 505 and Neely v. Chicago Great Western R. Co. , Mo. App., 14 S.W.2d 972, 978). 
193 Webster’s New Collegiate Dictionary 660 (1979)(ARG-62). 
194 Black’s Law Dictionary 1081 (5th ed. 1979). 
195 SAA at 883 (ARG-5)(emphasis added).  WT/DS268/R 
 Page A-61 
 
 
  
215. Based on the SAA guidance, the Commission interprets “likely” in this phrase to mean that 
any determination – negative or affirmative – is permissible because either outcome is “possible.”  
The Commission’s equation of “possible” with “likel y” cannot be reconciled with Article 11.3.  
Under the standard articulated in the SAA and applied by the Commission in this case, however, anti-
dumping duty measures will be maintained as long as injury is merely “possible” in the absence of an 
order. 
 
216. In a relatively recent remand determination that  the Commission issued pursuant to an order 
by the United States Court of International Trade,  the Commission confirmed that it has followed the 
approach of not giving the term “likely” its ordinary meaning of “probable” in all of the sunset review decisions that it had considered as of 1 July 2002, which would include the sunset review of OCTG 
from Argentina.  The Commission stated: 
 
To comply with the Court’s remand determination, the Commission must apply a 
fundamental term in the statute, ‘likely,’ as it pertains to five-year reviews.  We have applied the term “likely” in over 250 sunset reviews.  We have looked to the SAA in 
applying the term and have applied the term in a consistent manner.
196  
217. In that remand determination, the Commission offered the explanation that: 
 
In our view, the term “likely” captures a concept that falls in between “probable” and “possible” on a continuum of relative certainty.
197 
218. As is evident from the Commission’s statement, it concedes that in “over 250 sunset reviews” 
(including the review of OCTG from Argentina), for purposes of its determination of whether material 
injury was likely to recur, the Commission “did not  equate ‘likely’ with ‘probable.”  By its own 
admission, the Commission’s consistent practice is not to apply a “probable” standard.  219. Through the SAA, the US Government directed the Commission to apply, and the 
Commission applied, a standard for determining whet her revocation of an orde r would likely lead to a 
continuation or recurrence of dumping and injury that is inconsistent with the requirements of 
Article 11.3 of the Anti-Dumping Agreement.  
 220. The SAA provides specific guidance on what the Commission should evaluate in sunset review proceedings: 
 
[T]he Commission must consider whether there has been any improvement  in the 
state of the domestic industry that is related to the imposition of the order or the 
acceptance of a suspension agreement.  The Commission should not determine that 
there is no likelihood of continuation or recurrence of injury simply because the 
industry has recovered after the imposition of an order or acceptance of a suspension 
agreement, because one would ex pect that the imposition of an order or acceptance of 
a suspension agreement would have some beneficial effect on the industry.  
Moreover, an improvement  in the state of the industry related to an order or 
acceptance of a suspension agreement may suggest that the state of the industry is likely to deteriorate  if the order is revoked or the suspended investigation 
terminated.
198 
                                                      
196 Usinor Remand Determination  at 5 (ARG-56). 
197 Id. at 7. 
198 SAA at 884 (ARG-5)(emphasis added). WT/DS268/R 
Page A-62  
 
 221. Based on the above, the Commission failed to apply the correct standard for determining 
whether termination of the anti-dumping measure on OCTG from Argentina would be likely to lead to 
continuation or recurrence of injury.  The standard  applied by the Commission led to an affirmative 
finding of injury based on speculation about “possible”  injury or injury based on “a concept that falls 
in between ‘probable’ and ‘possible’ on a continuum of relative certainty.”
199  Irrespective of the 
standard applied generally, it is cl ear that the Commission failed to ap ply the “likely” standard in the 
sunset review of OCTG from Argentina in violatio n of Article 11.3 of the Anti-Dumping Agreement. 
 
222. The Commission disagrees that the term “likel y” should be interpreted consistent with its 
ordinary and WTO-consistent meaning as “probable.”  Rather the Commission employs a “possible” standard (as prescribed by the SAA) or, as the Commission also explains, “[i]n our view, the term ‘likely’ captures a concept that falls in between ‘p robable’ and ‘possible’ on a continuum of relative 
certainty.”
200 
 
223. Article 11.3 does not allow the authority to base its determination on  “possibilities” or on “a 
continuum of relativ e certainty.”  Article 11.3 of the Ag reement provides only two choices.  The 
Commission must decide simply whether or not inju ry would be likely to continue or recur if the 
order were terminated. 
 
224. Litigation in US courts over the Commission’s ap plication of the term “likely” in sunset cases 
further demonstrates that the plain meaning of the term is “probable.”201  The failure of the 
Commission to equate “likely” with “probable” constituted remandable error under US law in the 
Usinor  case: 
 
The Commission devotes a substantial portion of the Remand Determination  to 
arguing that “the term ‘likely’ captures a c oncept that falls in between ‘probable’ and 
‘possible’ on a continuum of relative certainty . . . .  The court rejects the 
Commission’s attempt to diminish the cl ear statutory standard by adopting a 
purposely ambiguous standard, a moving target somewhere between “possible” and 
“probable,” in order to couch almost any affirmative determination as consistent with 
the Uruguay Round Agreements Act . . . .202 
225. Other decisions reveal that US courts are in accord in the interpretation of “likely” to mean 
“probable,” and that the Commission does not apply a “likely” standard.  In Nippon Steel Corp. v. 
United States , the Court of International Trade also addr essed the issue of whether reading the term 
“likely” to mean “probable” misstated the likelihood  standard.  The court found “that likely means 
probable within the context of 19 USC. §§ 1675(c) and 1675a(a).”203  Similarly, in AG Der Dillinger 
Hüttenwerke, Eko v. United States , the court, in discussing “likely, ” stated “[t]his means more likely 
so than not.  It is not simply a toss-up.”204 
 
226. In accordance with the evaluation required by Article 11.3, if the evidence does not 
demonstrate the “likely” outcome upon the expiry of the order, the Commission cannot conclude that 
                                                      
199 Usinor Remand Determination  at 5 (ARG-56). 
200 Id. 
201 See Usinor I at 13 (ARG-14 ); Usinor II at 2 (ARG-16); and Nippon Steel Corp. v. United States,  
No. 01-00103, slip. op. 02-153 at 7-8 (CIT 24 December 2002)(ARG-17).  The grounds for remand in Nippon 
Steel  were essentially the same as those in the Usinor  cases ( i.e., the Commission failed to apply the plain and 
ordinary meaning of the term “likely”). 
202 Usinor II  at 4-6 (ARG-16). 
203 Nippon Steel Corp ., slip op. 02-153 at 7-8 (ARG-17). 
204 AG Der Dillinger Hüttenwerke v. United States , No. 00-09-00437, slip. op. 02-107 at 18 n.14 (CIT 
5 Sept. 2002)(Department of Commerce sunset review of countervailing duties)(ARG-15).  WT/DS268/R 
 Page A-63 
 
 
 injury is “likely.”  It is not sufficient that injury  is “possible;” injury must be more probable than not 
to satisfy the Article 11.3 standard.  More spec ifically, the Anti-Dumping Agreement mandates that 
investigating authorities must resolve whether the ev idence affirmatively demonstrates that volume is 
“likely” to increase, that prices are “likely” to be suppressed or depressed, and that material injury is 
“likely,” in the event of revocation. 
 
227. As noted above, the panel in DRAMS From Korea  commented on the ordinary meaning of the 
word “likely” as used in Article 11: 
 
We also note that “likelihood” or “likely” carries with it the ordinary meaning of “probable”.  That being so, it seems to us th at a “likely standard” amounts to the view 
that where recurrence of dumping is found to be probable as a consequence of 
revocation of an anti-dumping duty, this pr obability would constitute a proper basis 
for entitlement to maintain that anti-dumping duty in force.
205 
228. In the context of a revocation review pursuant to section 751 of the Act, the DRAMS from 
Korea  panel concluded that the word “likely” when  used with respect to the continuation or 
recurrence of injury and dumping should be interp reted in accordance with its normal meaning of 
“probable.”  The panel found that “[a] finding that an event is ‘likely’ implies a greater degree of 
certainty that the event will occur than a finding that the event is not ‘not likely.’”  Similarly, in the 
context of a sunset review, Article 11 requires the Commission to interpret the term “likely” 
consistent with its ordinary meaning and usage as “probable” rather than merely as “possible.”206 
 229. The Commission’s interpretation in sunset review s of the term “likely” as something less than 
“probable” contradicts the position taken by the United States in United States – Countervailing 
Duties on Certain Corrosion Resistant Carbon Steel Flat Products from Germany  where the United 
States argued before the Panel that ‘likely’ as used in Article 21.3 of the SCM Agreement “carries 
with it the ordinary meaning of probable.”
207 
 230. In applying the standard set forth in the SA A, the Commission ignored or discounted directly 
relevant evidence as to whether revocation  would likely lead to material injury.
208  The Commission’s 
Sunset Determination makes clear that the Comm ission based its determinations on the mere 
                                                      
205 Panel Report, DRAMS from Korea, para. 6.48 n.494.  The case involved a dispute as to the 
appropriateness of the Department’s determination regarding whether to terminate an anti-dumping duty order 
because dumping had not occurred for at least three years and dumping was not likely to recur in the future – the 
Department invoked the a “not likely” standard (i.e., in its revocation review).  Under the Department’s regulations in effect at the time, the Department would revoke an order if it concluded, among other things, that 
exporters or producers had sold the merchandise at not less than fair value for at least three years and it was “not 
likely” that they would in the future sell the subject merchandise at less than normal value.  See 19 C.F.R. § 353.25(a)(2)(ii) (1996)(ARG-4).  The panel determined that the Department’s use of the term “not likely” in this 
context was inconsistent with the United States obligations under the AD Agreement because it did not properly 
enable the Department to determine whether “continued imposition of the duty is necessary to offset dumping,” as required under Article 11.2 of the WTO Anti-Dumping Agreement.  See Panel Report, DRAMS From Korea , 
paras. 6.52-6.58. 
206 See Appellate Body Report, United States – Gasoline , para. 23; Vienna Convention, Art. 31. 
207 Oral Statement of the United States at the First Meeting of the Panel, United States – Countervailing 
Duties on Certain Corrosion-Resistant Carbon Steel Flat Products from Germany , WT/DS213 
(29-30 January 2002), para.6. 
208 Indeed, the Commission determined subsequently in a separate OCTG anti-dumping duty 
investigation that “there is no reasonable indication that an industry in the United States is materially injured or 
threatened with material injury, or that the establishment of an industry is materially retarded, by reason of imports of oil country tubular goods.”  See Oil Country Tubular Goods From Austria, Brazil, China, France, 
Germany, India, Indonesia, Romania, South Africa, Spain, Turkey, Ukraine, and Venezuela , Inv. Nos. 701-TA-
428, 731-TA-992-994 and 996-1005 (Int’l Tr ade Comm’n 2002)(prelim. determ.)(ARG-55). WT/DS268/R 
Page A-64  
 
 “possibility” that termination of the anti-dumping me asure might result in material injury, rather than 
the “probability” that it would so result. 
 
231. On several occasions, the Commission engaged in the kind of predictive and speculative 
analysis that is prescribed by the SAA and pr ohibited by Article 11.3 of the Anti-Dumping 
Agreement.
209  For example, when discussing the question of whether Tenaris210 would, in the event 
the order on OCTG from Argentina were revoked, in crease its shipments to the United States market, 
the Commission noted Tenaris’ global focus, then hypothesized that given that focus, it would likely 
have a strong incentive to increase its shipments to the United States.211  Such a finding is nothing 
more than a finding that such shipments were conceivably possible , rather than a determination, based 
upon hard evidence on the record, that such shipments were probable .  The Commission concluded 
that, inasmuch as many of Tenaris’ oil and gas company customers had operations in the United 
States, it was possible that Tenaris would seek to s upply those operations.  It did not, however, cite to 
any evidence showing that those supply efforts were  planned or ongoing.  It would have been equally 
possible, depending on current drilling patterns, fo r the Commission to determine that Tenaris would 
seek to concentrate its sales to non-US markets.  
232. Similarly, the Commission predicts that imports will cause price suppression in the US 
market upon revocation of the orders primarily on th e basis of the facts that some imports undersold 
the domestic product during the original investigations, that domestic and imported products are 
highly substitutable, and that price is an important factor in purchasing decisions.
212  The leap from 
these facts to the conclusion that, upon revocation of the orders, subject imports would suppress US market prices for the subject merchandise is obviously speculative, inasmuch as it ignores the fact that 
other conditions in the market (e.g., demand for the product) may have a significant role to play in 
whether prices of the subject product rise or fall. 
 
233. The Commission based its determination on the “possibility” that revocation might result in 
material injury.  The Commission thus failed to apply the “likely to recur” standard and simply 
concluded that a finding of injury could be base d on the theoretical “possibility” of injury after 
revocation of the subject orders.  The Commission also violated Article 3.1 by conducting the 
investigation so as to increase th e likelihood of or render inevitable its determining that the domestic 
industry would be injured. 
 
                                                     
 
209 According to the SAA, “[t]he determination called for in these types of [sunset] reviews is 
inherently predictive or speculative.  There may be more than one likely outcome following revocation or termination.”  SAA at 883 (ARG-5). 
210 The Commission refers interchangeable throughout its determination to “the Tenaris alliance,” the 
“Tenaris group,” or simply  “Tenaris,” as consisting of the following four companies:  NKK (Japan), TAMSA (Mexico), Dalmine (Italy), and Siderca (Argentina).  See e.g.,  Commission’s Sunset Determination  at 12 n.71 
(“alliance”), 13 (“alliance”), 13 n.73 (“group”), 19 (“Tenaris”), 19 n.124 (“Tenaris”), and 23 n.153 
(“alliance”)(ARG-54).  The Commission focused its analysis on Tenaris and largely failed to undertake any analysis specific to Siderca. 
211 Id. at 19. 
212 Id. at 21.  WT/DS268/R 
 Page A-65 
 
 
 B. THE COMMISSION FAILED TO CONDUCT AN “OBJECTIVE EXAMINATION ” OF THE RECORD AND 
FAILED TO BASE ITS DETERMINATION ON “POSITIVE EVIDENCE ” REGARDING WHETHER 
TERMINATION OF THE ANTI -DUMPING DUTY MEASURE WOULD BE LIKELY TO LEAD TO 
CONTINUATION OR RECURRENCE OF INJURY IN VIOLATION OF THE ANTI-DUMPING 
AGREEMENT  
1. The requirements of Articles 3.1 apply to reviews conducted under Article 11.3 
234. Article 3 of the Anti-Dumping Agreement app lies to reviews conducted under Article 11.  
The WTO jurisprudence estab lishes that the broad scope of the defi nition of injury in Article 3 applies 
to “injury” for all purposes under the Agreement.  As explained above, footnote 9 to Article 3, 
“Determination of Injury ,” provides “ Under this Agreement the term ‘injury’ shall, unless otherwise 
specified, be taken to mean material injury to a domestic industry, threat of injury to a domestic 
industry or material retardation to the establishment of such an industry and shall be interpreted in 
accordance with the provisions of this Article .”213  The Appellate Body has he ld that “the obligations 
in Article 3.1 apply to all injury determinations undertaken by Members,”214 and has reaffirmed this 
proposition, stating “Article 3.1 is an overarching provision that sets forth a Member’s fundamental, 
substantive obligation’ with respect  to the injury determination.”215 
 
235. The Panel in Sunset Review of Steel from Japan stated that:   
 
Article 3 is entitled “Injury.”  This title is  linked to footnote 9 of the Anti-Dumping 
Agreement, which indicates that:  “[u]nder this Agreement the term ‘injury’ shall, 
unless otherwise specified, be taken to mean  material injury to a domestic industry, 
threat of material injury to a domestic  industry or material retardation of the 
establishment of such an industry and sha ll be interpreted in accordance with the 
provisions of this Article.” This seems to demonstrate that the term “injury” as it 
appears throughout the Anti-Dumping Agreement  – including Article 11 – is to be 
construed in accordance with this footnote, unless otherwise specified. This would seem to support the view that the provisio ns of Article 3 concerning injury may be 
generally applicable throughou t the Anti-Dumping Agreement  and are not limited in 
application to investigations. Article 11 doe s not seem to explicitly specify otherwise 
in the case of sunset reviews.
  
Other textual indications demonstrate that  the Article 3 injury obligations apply 
throughout the Agreement. For example, the use of the language “for purposes of 
Article VI of GATT 1994” in Article 3.1 also suggests that, in general, the obligations 
in Article 3 pertaining to injury may a pply throughout the Anti-Dumping Agreement, 
i.e. they are not limited to investigations. 216 
236. Article 3.1 provides: 
 
A determination of injury for purposes of Article VI of the GAT T 1994 shall be based 
on positive evidence and involve an objective examination of both (a) the volume of 
dumped imports and the effect of dumped imports on prices in the domestic market 
                                                      
213 Emphasis added. 
214 Appellate Body Report, H-Beams from Poland , para. 114 (emphasis added). 
215 Appellate Body Report , Hot-Rolled Steel from Japan , para. 192 (quoting Appellate Body Report, H-
Beams from Poland , para. 106). 
216 Panel Report, Sunset Review of Steel from Japan , para. 7.99.  There was not a definitive ruling from 
the panel on this issue, since the panel said that this was “an issue we need not and do not decide.”  Id. para. 
7.101. WT/DS268/R 
Page A-66  
 
 for like products, and (b) the consequent impact of these imports on domestic 
producers of such products. 
237. In Hot Rolled Steel from Japan , the Appellate Body reaffirmed that Article 3.1 of the Anti-
Dumping Agreement sets out clear requirements that must be followed by WTO Members in anti-
dumping proceedings: 
 
[T]his general obligation “informs the more  detailed obligations” in the remainder of 
Article 3.  The thrust of the investigating au thorities’ obligation, in Article 3.1, lies in 
the requirement that they base their determ ination on “positive evidence” and conduct 
an “objective examination.”  The term “positiv e evidence” relates, in our view, to the 
quality of the evidence that authorities may rely upon in making a determination.  The 
word “positive” means, to us, that the eviden ce must be of an affirmative, objective 
and verifiable character, and that it must be credible. 
The term “objective examination” aims at a different aspect of the investigating 
authorities’ determination.  While the term “positive evidence” focuses on the facts underpinning and justifying the injury determination, the term “objective examination” is concerned with the in vestigative process itself.  The word 
“examination” relates, in our view, to the way in which evidence is gathered, inquired 
into and, subsequently, evaluated; that is, it relates to the conduct of the investigation 
generally.  The word “objective”, which qua lifies the word “examination” indicates 
essentially that the “examination” process mu st conform to the dictates of the basic 
principles of good faith and fundamental fairness.”  In short, an “objective 
examination” requires that the domestic in dustry, and the effects of dumped imports, 
be investigated in an unbiased manner, without favoring the interests of any interested 
party, or group of interested parties in the investigation.
217 
238. The standards set out in Article 3.1 apply to determinations in sunset reviews.  In HFCS from 
the United States , the Panel stated, “Article 3.1 requires that a determination of injury, including 
threat of injury, involve[s] an examination of the impact of imports.”218  The Appellate Body in the 
same HFCS case recognized the “close relationship between the various paragraphs of Article 3 of the 
Anti-Dumping Agreement.”219  Further, in H-Beams from Poland , the Appellate Body stated that 
“Article 3.1 informs the more detailed obligations in succeeding paragraphs,”220 and that “as in 
Article 3.1, which overarche s and informs it, it is the nature  of the evidence that is being addressed in 
Article 3.7.”221 
 
239. More recently, the Panel in Sunset Review of Steel from Japan  suggested (although it was not 
required to decide the point) that “the provisions  of Article 3 concerning injury may be generally 
applicable throughout the Anti-Dumping Agreem ent and are not limited in application to 
investigations.  Article 11 does not seem to explicitly specify otherwise in the case of sunset reviews.”  
Moreover, the Panel also observed: 
 
                                                      
217 Appellate Body Report,  Hot-Rolled Steel from Japan, paras. 192-193 (footnotes omitted).  
218 Panel Report, Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the 
United States , WT/DS132/R, adopted on 24 February 2000, para. 7.131 (“ HFCS from the United States”) . 
219 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,  WT/DS132/AB/RW, adopted 
on 21 November 2001, para. 123 (“ HFCS from the United States”) . 
220 Appellate Body Report, H-Beams from Poland,  para. 106. 
221 Id. at para. 108.  WT/DS268/R 
 Page A-67 
 
 
 There are other textual indications that the Article 3 injury obligations may generally 
apply throughout the Agreement.  For example,  the use of the language “for purposes 
of Article VI of GATT 1994” in Article 3.1 also suggests that, in general, the 
obligations pertaining to injury may apply throughout the Anti-Dumping Agreement, 
i.e., they are not limited to investigations.222 
240. In the OCTG sunset review, instead of cond ucting an “objective” examination of the record 
and basing its determination of the likelihood of injury on “positive evidence” established on the 
record, the Commission ignored, or improperly discounted, evidence directly relevant to whether 
revocation would likely lead to material injury.  In lieu of such directly ap plicable positive evidence, 
the Commission based its determination on unsubsta ntiated assertions and speculation regarding the 
“possibility” that termination might result in material injury.  The Commission thus failed to apply the 
“likely to recur” standard and simply concluded that a finding of injury could be based permissibly on 
a theoretical “possibility” of injury after termination of the anti-dumping measure.  As the Sunset 
Review of Steel from Japan  panel stated, “the requirement to make a ‘determination’ concerning 
likelihood . . .  precludes an investigating authority from simply assuming th at likelihood exists .”223  
The “objective examination” mandated by the Agreement could not have been, and was not, conducted by the Commission by virtue of the fact that the Commission does not apply a WTO-
consistent “likely” standard. 
 
241. As Argentina has explained at the beginning of Section VIII.A., above, the guiding principle 
established by the SAA and applied by  the Commission in this case (t hat “[t]here may be more than 
one likely outcome following revocation or termination”)
224 is a “possibility” standard, which is 
inconsistent with the “probability” standard set forth in Article 11.3. 
 
2. The Commission’s conclusions with respect to th e volume of imports, price effects on the 
domestic like product, and im pact of imports on the domestic industry demonstrate the 
Commission’s failure to conduct an objective examination in violation of Articles 11.3, 
3.1, and 3.2 of the Anti-Dumping Agreeme nt.  The Commission’s findings were not 
based on “positive evidence” of likely injury in the event of termination, in violation of 
Articles 11.3, 3.1, and 3.2 of  the Anti-Dumping Agreement 
242. As demonstrated above, the provisions of Article 3 apply to the likelihood analysis.  
Consequently, in a sunset review, Articles 3.1 and 3.2 require the Commission to conduct “an 
objective examination” and base its determina tion on “positive evidence” after considering the  volume 
of the dumped imports, the effect of the dumped imports on prices  in the domestic market for like 
products, and the consequent impact  of these imports on domestic producers of such products. 
 
(a) The Commission’s findings on likely volume were not based on an objective examination of 
the evidence and do not constitute positive evidence of likely injury volume of imports 
243. With regard to the volume of subject imports, the Commission concluded “we find that the 
volume of subject imports is likely to increase significantly in the event of revocation.”  The 
Commission made several findings in an attempt to  support its conclusion.  First, the Commission 
pointed to the existence of “substantial” available ca pacity in the subject countries and concluded that, 
notwithstanding high capacity utilization rates in thos e countries, “the record indicates that these 
producers have incentives to devote more of their productive capacity to producing and shipping more 
casing and tubing to the US market.” 225  Along those lines, the Commission alleged that producers in 
                                                      
222 Panel Report, Sunset Review of Steel from Japan , para. 7.100 (footnote omitted). 
223 Id. at para.7.177. 
224 SAA at 883 (ARG-5). 
225 Commission’s Sunset Determination  at 19 (ARG-54). WT/DS268/R 
Page A-68  
 
 the subject countries were “export-oriented,” and that in particular, those producers would focus on 
the US market.
226  The Commission emphasized that the “Tenaris Group,” with its global focus, 
would likely have a strong incentive to ha ve a significant present in the US market.227  Second, the 
Commission found further that (1) there were significant differences between US and world-market 
prices for casing and tubing, with US prices being consistently higher, and (2) foreign producers faced 
significant import barriers in third-country markets.228 
 
244. There are significant flaws in the Commission’s volume analysis such that its conclusion, that 
subject imports would be likely to increase in the event of revocation, cannot be said to be the result 
of an objective examination of the record.  First, w ith regard to the “Tenaris Group,” there is simply 
no evidence in the record that Tenaris could re-o rient production that is committed under existing 
contracts.  The only way subject producers could si gnificantly increase shipments would be to shift 
production away from other pipe and tube products towards casing and tubing.229  No “positive 
evidence” demonstrated that the subject producers had an incentive to shift production.  The “positive 
evidence” provided by the subject producers in their questionnaire responses to the Commission 
showed their existing production was committed by virtue of either long-term contracts or long-
standing relationships with customers that require d them to supply OCTG and other pipe and tube 
products.  The Commission did not cite any “positive evidence” that the so-called “incentive” to ship 
to the United States would justify breaking long-term contracts and turning away long-term 
customers.  The subject producers also provided “positive evidence” in their questionnaire responses 
that they focused on end-users in order to provid e those end-users with service-related components for 
other commodity pipe and tube products.  The Co mmission ignored or summarily dismissed such 
evidence.230  Thus, despite the alleged “export-orienta tion” of foreign producers, the Commission 
failed to show that exports would enter the United States as opposed to other export markets. 
 
245. Second, with regard to trade barriers in thir d-country markets, the Commission could point to 
only one outstanding order on the subject merchandise:  an anti-dumping order in Canada against 
imports from Korea.231  The Commission could not cite an y third-country trade barriers facing 
producers in the other four countr ies subject to investigation.  Th is is hardly the “positive evidence” 
required to support a conclusion that increased exports would be likely to enter the US market. 
 
246. Finally, the Commission alleged that price differentials between the US and world markets 
meant that foreign producers would seek to ship primarily to the United States.  The Commission, 
however, based its conclusion on anecdotal reports from its hearing and not on any independent 
investigation.232  The Commission’s reliance on this anecdotal evidence does not constitute the kind 
of “objective examination” that Article 3 requires.  
(b) The Commission’s findings on likelihood of negative price effects were not based on an 
objective examination of the evidence and do not  constitute positive evidence of likely injury 
247. The Commission’s key finding on negative price effects was that “increases in subject import 
sales volume . . . would be ac hieved through lower prices.”
233  The Commission, however, failed to 
reference any  evidence (let alone “positive evidence”) to support this conclusion. 
 
                                                      
226 Id. at 20. 
227 Id. at 19. 
228 Id. at 19-20. 
229 Id.  
230 Id. at 19 n.126. 
231 Id. at 20 and at IV-6 to IV-8 (Staff Report). 
232 Id. at 19 n.128. 
233 Id. at 21.  WT/DS268/R 
 Page A-69 
 
 
 248. The Commission attempted to support its conclusion by alleging the following:  (1) subject 
imports generally undersold the domestic like produc t; (2) there was a high level of substitutability 
between subject imports and the domestic like product; (3) price was an important factor in 
purchasing decisions; (4) there would likely be a si gnificant volume of subject imports; and (5) US 
demand for the subject product was volatile.234  The majority of these findings are unsupported by the 
evidence on the record. 
 
249. As an initial point, because there were neg ligible Argentine OCTG exports, the Commission’s 
analysis necessarily focused on the volume of shipments from Italy, Mexico, Japan, and Korea,  and 
their prices, in order to determine whether injury would likely continue or recur if the duty on Argentine imports  were terminated.  Two additional points also deserve attention.  First, as the 
Commission acknowledged, its underselling analysis was based on a very limited set of 
comparisons.
235  Moreover, the Commission failed to note that at the end of the period examined, in 
2000, domestic prices increased markedly.236  It is completely illogical – and in no way objective – for 
the Commission to conclude that, where prices are increasing toward the end of the period examined, 
imports will enter at lower prices and cause injury .  Second, the Commission points to the volatile 
nature of US demand but fails to explain how this  factor signifies that imports will enter the US 
market at lower prices.  At any rate, the Commission cites no evidence for the proposition that 
demand for OCTG was unusually volatile during the period examined.   
 
250. The Commission’s findings on the issue of the importance of price in purchasing decisions are similarly not based on any “positive evidence.”  Price is an important, although not determinative, factor to purchasers.  Responding purchasers ranked quality as their primary purchasing criterion just 
as frequently as price, and produc t availability was considered as im portant to purchasers just as 
frequently as price.
237  Commission staff acknowledged that there was no clear trend in responses to 
the question of whether price differences or differences in factors other than price were significant in 
competition between US product and su bject imports of casing and tubing.238  The Commission also 
ignored data that showed that purchasers ranke d factors such as delivery time, delivery terms, 
availability, and product quality as higher than pr ice in importance, and ra nked factors such as 
discounts offered, reliability of supply, and product consistency as equal in importance.239  T h e  
Commission’s selective interpretation of the r ecord before it clearly demonstrates that the 
Commission did not undertake an “objective examination” of this issue. 
 
251. Finally, as noted above, the Commission’s finding that, upon revocation, there would likely 
be a significant increase in import volume , is not supported by the record evidence. 
 (c) The Commission’s findings on likelihood of adverse impact were not based on an objective 
examination of the evidence and do not constitute positive evidence of likely injury  
252. With regard to whether adverse impact on the domestic industry was likely in the event of 
revocation, the Commission concluded that “a signifi cant increase in subject imports is likely to have 
negative effects on both the price and volume of the domestic producers’ shipments despite strong 
                                                     
 
234 Id. at 20-21.  
235 Id. at 21 (“While direct selling comparisons are limited  because the subject producers had a limited 
presence in the US market during the period of review, the few direct comparisons that can be made indicate that subject casing and tubing generally
 undersold the domestic like product especially in 1999 and 2000”) 
(emphasis added). 
236 Id. at V-9 to V-11 (Staff Report). 
237 Id. at II-17 (Staff Report). 
238 Id. at II-18 n.71 (Staff Report). 
239 Id. at II-19 (Staff Report). WT/DS268/R 
Page A-70  
 
 demand conditions in the near term.”
240  The Commission’s findings on this score, however, compel 
the opposite conclusion. 
 
253. The Commission determined that domestic produc ers’ shipments were at their highest level in 
calendar year 2000, the most recent period the Commission examined.241  The Commission also found 
that domestic production capacity increased by 23 per cent, and production quantity by 39 per cent, 
over the period the Commission examined.242  Operating income, whic h was negative in 1999, 
switched to a substantial profit in 2000.  Although the domestic industry’s market share declined over 
the period examined, the Commission noted that th e share was taken, not by the countries under 
investigation, but by nonsubject imports.243  Finally, the Commission concluded that demand 
conditions were projected to be strong in the near term.244 
 
254. Given these positive trends, the Commission noted only that during its original investigation, 
there were adverse volume and price effect s of imports despite strong US demand.245  The 
Commission apparently assumed that if increased demand had coexisted with adverse volume and 
price effects of imports during the original investigat ion, that must also be possible at the time of its 
“determination.”  The Commission, however, cites absolutely no evidence to support this assumption.  
In the end, despite all of the above positive evidence  demonstrating that injury would not be likely in 
the event of termination of the anti-dumping me asure on OCTG, the Commission concluded that 
termination of the measure would have an adverse impact because subject import volumes would 
increase, and therefore prices would decline.  As  noted above, the Commission failed to substantiate 
the basis for these conclusions.  Consequently, th e Commission’s flawed analysis with regard to 
volume and price effects fatally infected its analysis  concerning the likely impact of subject imports. 
 3. The Commission failed to evaluate all relevant economic factors and indices having a 
bearing on the state of the industry, including all of the factors enumerated in Article 3.4 
of the Anti-Dumping Agreement 
255. Article 3.4 of the Anti-Dumping Agreement requires an examination of actual and potential 
decline in sales, profits, output, market share, prod uctivity, return on invest ments, or utilization of 
capacity, factors affecting domestic prices, the magnitude of the margin of dumping, actual and 
potential negative effects on cash flow, inventories,  employment, wages, growth, and ability to raise 
capital or investments.  256. The Appellate Body has affirmed that “Article  3.4 requires a mandatory evaluation of all of 
the factors listed in that provision.”
246  Thus, the administering authority’s failure to evaluate even one 
factor would constitute a violation of Article 3.4.  Evaluation by the authority cannot be a 
“mechanical exercise,” but must be “based on a thorough evaluation of the state of the industry and 
. . . contain a persuasive explanation as to how the evaluation of relevant factors led to the 
determination of injury.”247 
                                                      
240 Id. at 22-23. 
241 Id. at 22. 
242 Id. at 22-23. 
243 Id. at 22 . 
244 Id. at 19. 
245 Id. at 22. 
246 Appellate Body Report, H-Beams from Poland , para. 128 (emphasis added). 
247 Panel Report, H-Beams from Poland,  para. 7.236 (emphasis added).  The Appellate Body agreed 
with the panel report in entirety.  See Appellate Body Report, H-Beams from Poland, para. 125.  Prior WTO 
panels have determined that a WTO permissible evaluation of the required Article 3.4 factors must be more than a mere recitation or listing of the mandatory factors.  Rather a proper analysis must be based on positive record 
evidence and entail an objective examination in accordance with Article 3.1.  Panel Report, H-Beams from 
Poland,  para. 7.236.  WT/DS268/R 
 Page A-71 
 
 
  
257. The requirements imposed by Article 3.4 were recently summarized by the Panel in EC – 
Pipe Fittings : 
 
The Agreement requires that each listed Ar ticle 3.4 factor be addressed . . . . The 
provision requires substantive, rather than purely formal, compliance . . . .  The term 
“evaluate” is defined as:  “To work out the value of . . . ; To reckon up, ascertain the 
amount of; to express in terms of the know n; To determine or fix the value of; To 
determine the significance, worth of cond ition of usually by careful appraisal or 
study.” These definitions reveal that an “evaluation” is a process of analysis and 
assessment requiring the exercise of judgement on the part of the investigating authority. It is not simply a matter of form, and the list of relevant factors to be 
evaluated is not a mere checklist .  As the relative weight or significance of a given 
factor may naturally vary from investigation to investigation, the investigating 
authority must therefore assess the role, rele vance and relative weight of each factor 
in the particular investigation.  Where the authority determines that certain factors 
are not relevant or do not weigh significan tly in the determination, the authority may 
not simply disregard such factors, but must explain their conclusion as to the lack of 
relevance or significance of such factors . 
 The assessment of the relevance or 
materiality of certain factors, including those factors that are judged to be not central 
to the decision, must therefore be at least implicitly apparent from the determination.  
Silence on the relevance or  irrelevance of a given factor would not suffice.248  
258. The Commission’s determination did not addres s several of the mandatory issues, and several 
were only addressed in conclusory form.  Indeed, th e Commission’s discussion of the majority of the 
Article 3.4 factors was limited to mere a recitation of them: 
 
In these reviews, we find that a significant  increase in subject imports is likely to 
have negative effects on both the price and volume of the domestic producers’ 
shipments despite strong demand conditions in the near term.  We find that these 
developments likely would have a significant adverse impact on the production, 
shipments, sales, market share, and revenue s of the domestic industry.  This reduction 
in the domestic industry’s production, shipments, sales, market share, and revenues would result in erosion of the domestic industry’s profitability as well as its ability to raise capital and make and maintain necessary capital investments.
250 
259. The Commission provided little more than a “mere checklist.”  As the chart below indicates, 
the Commission either failed to consider many  factors or simply mentioned others.  The 
Commission’s approach to the Article 3.4 factors was a “purely formal, rather than substantive 
compliance” – precisely the approach that the Pipe Fittings  Panel found did not meet the requirements 
of Article 3.4.  The Commission failed to even identify several of the Article 3.4 factors in its 
findings, let alone “evaluate” them. 
 
FACTORS CONSIDERED UNDER ARTICLE 3.4  
 
Factor Referenced Not Considered 
Declines (actual or potential) in:   
 Sales X1  
 Profits X1  
 Output X1  
                                                      
248 Panel Report, Pipe Fittings from Brazil , paras. 7.310 and 7.314 (footnote omitted; emphasis added). 
249 Commission’s Sunset Determination  at 22 (ARG-54). WT/DS268/R 
Page A-72  
 
 Factor Referenced Not Considered 
 Market Share X  
 Productivity  X 
 Return on 
 Investments  X 
 Capacity Utilization X  
Factors Affecting Domestic 
Prices  X 
Margin of Dumping  X 
Actual and Potential Negative 
Effects on:   
 Cash Flow  X 
 Inventories  X 
 Employment  X 
 Wages  X 
 Growth  X 
 Ability to Raise 
 Capital or Investments X  
 
 1  The Commission referenced these factors, but increases, not declines, were cited. 
 260. Thus the Commission’s failure to evaluate all of the fifteen factors in Article 3.4, and its 
failure to adequately evaluate those factors that it purportedly relied upon, violated Articles 3.4.  The 
Commission provided substantive analysis of only  four of the fifteen mandatory factors.  The 
remaining eleven factors were either ignored or subject to the kind of “mechanical exercise” that the 
Appellate Body indicated would not
 be consistent with Article 3.4. 
 261. The panel in H-Beams from Poland  panel also addressed how the Article 3.4 factors should 
be analyzed as a whole consistent with the requirements of the AD Agreement: 
 
[P]ositive movements in a number of factors would require a compelling  
explanation 
of why and how, in light of such apparent positive trends, the domestic industry was, or remained, injured within the meaning of th e Agreement.  In particular, we consider 
that such a situation would require a thorough and persuasive explanation  as to 
whether and how such positive movements we re outweighed by any other factors and 
indices which might be moving in a negative direction during the I[nvestigative] 
P[eriod].
251 
262. The Commission failed to provide anything remotely approaching a “compelling . . . thorough 
and persuasive explanation” of its determination regarding the likely impact of imports of OCTG 
from Argentina on the domestic industry. 
 
263. Because anti-dumping measures are intended to  offset injury to a domestic industry, they 
cannot be used to accelerate market expansion of an already healthy domestic industry.  Thus, the Commission’s examination of the likely impact of subject imports on the domestic industry was 
inconsistent with Article 3.4. 
 
264. As discussed above, a sunset review evaluates the likelihood of injury in the event of 
termination.  In this sense the analysis is prospect ive.  A likelihood of future injury analysis thus 
                                                                                                                                                                    
 
250 See Commission’s Sunset Determination at 22-23. 
251 Panel Report, H-Beams from Poland , para. 7.249 (emphasis added).  WT/DS268/R 
 Page A-73 
 
 
 entails elements of both Articles 3.4 and Article  3.7 of the Anti-Dumping Agreement.  Injury 
determinations under Article 3.7 mu st be “based on facts and not merely on allegation, conjecture or 
remote possibility.”  Moreover, Article 3.7 requir es the circumstances under which injury would 
occur to be imminent .  As discussed above, the Commission’s injury determination was not based on 
“positive evidence,” but instead on evidence that, at  best, showed injury to be merely speculative.  
The Commission’s determination also was not base d on a finding that injury was “imminent,” but 
rather that injury could occur “within a reasonably foreseeable time.”  As di scussed in greater detail 
below, this standard does not comply with Article 11.3 requirements. 
 
265. The Commission’s failure to evaluate all of the fifteen factors in Article 3.4 is also inconsistent with an analysis of threat of  injury under Article 3.7.  The panel in HFCS from the United 
States  confirmed that the factors in Article 3.4 must be considered whenever any determination of 
injury is made, whether material inju ry or threat of material injury: 
 
In our view, this language makes it clear that  the listed factors in Article 3.4 must be 
considered in all cases.  There may be other relevant economic factors in the 
circumstances of a particular case, consideration of which would also be required.  In 
a threat of injury case, for instance, the AD Agreement itself establishes that 
consideration of the Article 3.7 factors is also required.  But consideration of the 
Article 3.4 factors is required in every case, even though such consideration may lead 
the investigating authority to conclude that a particular factor is not probative in the 
circumstances of a particular industry or a particular case, and therefore is not relevant to the actual determination.  Mor eover, the consideration of each of the 
Article 3.4 factors must be apparent in th e final determination of the investigating 
authority.
252 
266. A WTO-permissible evaluation of each fact or must include an objective examination and 
positive evidence in the record.  The Appellate Body has reaffirmed that investigating authorities must 
comply with this standard in threat of injury determinations as well as material injury ones.253  As in a 
threat determination, the analysis of injury in sunset reviews involves a prospective examination of 
the likely impact of imports on the domestic indu stry.  Under such circumstances, the Commission 
must fully examine each of the fifteen factors ba sed on positive evidence.  The Commission failed to 
do so in the sunset review of the an ti-dumping order on OCTG from Argentina. 
 
4. The Commission failed to analyse the issue of  whether, if the anti-dumping measure 
were revoked, the continuation or recurren ce of injury to the domestic industry would 
be caused by imports of Argentine OCTG, in violation of Article 11.3 and 3.5 of the 
Anti-Dumping Agreement 
267. Moreover, the Commission failed to analyze th e issue of whether, if the order on OCTG from 
Argentina were revoked, the continuation or recurre nce of injury to the domestic industry would be 
caused by imports of the subject merchandise.  As noted above, the provisions of Article 3 apply to 
sunset reviews conducted under Article 11.3.254  Under Article 3.5 of th e Anti-Dumping Agreement, 
an administering authority must demonstrate that “the dumped imports are, through the effects of 
dumping, as set forth in paragraphs 2 and 4, causing injury within the meaning of this Agreement.” 
 268. The Appellate Body in Certain Hot-Rolled Steel from Japan  laid out a framework within 
which the Commission could have conducted such a causation analysis.   That framework involved 
the following obligations on the part of the Commissi on:  (1) an identification of the factors that could 
                                                     
 
252 Panel Report, HFCS from the United States , para. 7.128. 
253 Appellate Body Report, H-Beams from Poland , para. 108. 
254 See discussion in section VIII.B.1. above. WT/DS268/R 
Page A-74  
 
 be causing injury to the domestic industry; (2) a determination of whether these factors are operating 
simultaneously; (3) a determination of whether these factors are having an injurious effect; (4) a 
distinction between the injurious effects (if any) of  dumped imports versus injurious effects of other 
known factors; and (5) ensuring that domestic injury  caused by other factors is not attributed to 
dumped imports.  With regard to (4) and (5), the Appellate Body held that the Commission had failed 
to separate and distinguish the effects of dumped imports from the effects of other factors, and that 
this failure directly contradicted the la nguage in Article 3.5 of the Agreement.
255 
 
269. In the review of OCTG from Argentina, the Commission similarly has failed to separate and 
distinguish the potential injurious effects of othe r causal factors from the potential effects of the 
dumped imports.  Nowhere in the Commission’s opin ion is there any analysis of whether injury 
would be caused by factors other than subject imports, were the anti-dumping order on OCTG from 
Argentina to be revoked.  In particular, in the section of the opinion discussing the likely impact on 
the domestic industry of the revocation of the orders (pertaining to Argentina, Italy, Japan, Korea, and 
Mexico), the Commission focuses solely on the likel y effects of alleged increases in imports, without 
a thorough examination of other characteristics of the market (e.g., expected changes in demand) that might affect the condition of the domestic industr y upon revocation of the orders.  Hence, the 
Commission’s approach violated Article 3.5 of the Agreement. 
 
C. T
HE US STATUTORY REQUIREMENTS THAT THE COMMISSION DETERMINE WHETHER INJURY 
WOULD BE LIKELY TO CONTINUE OR RECUR “WITHIN A REASONABLY FORESEEABLE TIME ” 
(19 USC.  § 1675 A(A)(1))  AND THAT THE COMMISSION “SHALL CONSIDER THAT THE EFFECTS 
OF REVOCATION OR TERMINATION MAY NOT BE IMMINENT , BUT MAY MANIFEST THEMSELVES 
ONLY OVER A LONGER PERIOD OF TIME ” (19 USC.  § 1675 A(A)(5)),  ARE INCONSISTENT WITH 
ARTICLES 11.1,  11.3  AND 3 OF THE ANTI-DUMPING AGREEMENT  
1. 19 USC. §§ 1675a(a)(1) and (5) are inconsistent as such with Articles 11.3 and 3 of the 
Anti-Dumping Agreement 
270. The US anti-dumping statute requires that in a sunset review the Commission must determine 
whether injury would be likely to continue or  recur “within a reasonably foreseeable time.”256  The 
statute further mandates that the Commission “sha ll consider that the effects of revocation or 
termination may not be imminent, but may manifest themselves only over a longer period of time.”257  
The SAA reaffirms this statutory language and expl ains that the ‘reasonably foreseeable time’ . . . 
normally will exceed the ‘imminent’ time frame applicable in a threat of injury analysis.”258  The SAA 
further specifies that the Commission shall consider “f actors that may only manifest themselves in the 
longer term.”259 
 
271. The absence of temporal limitations on the possibility of future injury, coupled with 
speculation regarding future market conditions – th e central features of these statutory provisions – 
are inconsistent with the standard under Article 11.3 of the Anti-Dumping Agreement.  The 
Commission’s market forecasting and speculation is  inconsistent with WTO requirements to assess 
whether termination of an anti-dumping duty order wo uld be likely to lead to recurrence of injury 
upon revocation of the order .  The term “imminent” is not defined in the statute.  As applied in US 
                                                      
255 Appellate Body Report, Hot-Rolled Steel from Japan , paras. 222-223. 
256 19 USC. § 1675a(a)(1)(ARG-1). 
257 19 USC. § 1675a(a)(5)(ARG-1). 
258 SAA at 887 (ARG-5). 
259 Id.  WT/DS268/R 
 Page A-75 
 
 
 law, however, the term “imminent” has been used to describe events potentially occurring several 
years into the future.260 
 
272. The US statutes defining a “reasonably foreseeable time,” as longer than an “imminent” time, 
are inconsistent with the Anti-Dumping Agreement that requires the determination to be based upon 
injury upon “expiry” of the order.261  Footnote 9 to Article 3 defines the types of injury recognized 
under Article 3 for purposes of the Anti-Dumping Agreement:  material  injury to a domestic industry, 
threat of material injury to a domestic industry, or material retardation of the establishment of such an 
industry.  The US statutory provisions permit the Commission to find injury without support of 
“positive evidence,” that is based on sheer speculation, and that is far less immediate than the time 
frame contemplated by “threat of in jury” as set forth in Article 3.7. 
 
273. These provisions of US law are inconsistent with the obligations in Articles 3.7 and 3.8 of the 
Anti-Dumping Agreement.  A likelihood of future in jury analysis in accordance with Article 11.4 
necessary entails elements of bot h Articles 3.4 and Article 3.7.  Injury determinations under 
Article 3.7 must be “based on facts and not merely  on allegation, conjecture or remote possibility.”  
Moreover, Article 3.7 requires the circumstan ces under which injury would occur to be imminent .  
The Commission’s injury determination was not ba sed on “positive evidence” but rather conjecture 
and speculation.  Furthermore, such conjecture and speculation as to the factors causing likely injury 
were not deemed to be “imminent”  but rather might occur “within a reasonably foreseeable time.”  US 
law does not define, nor has the Commission articul ated, what constitutes “a reasonably foreseeable 
time.”262  The virtually unbridled discretion of the Co mmission in making its determinations as to 
whether injury is likely to continue or recur c onflicts with the requirements of the Anti-Dumping 
Agreement.  Speculation by an investigating author ity about market conditions several years into the 
future is inconsistent with Article 11.3 and Article 3. 
 
274. Similarly, US law imposes an obligation on the Commission inconsistent with the mandate of 
Article 3.8, which provides that 
 
With respect to cases where injury is threatened by dumped imports, the application 
of anti-dumping measures shall be considered and decided with special care. 
275. These provisions of US law operate to release the Commission from the constraints and 
safeguards built into Articles 3.7 and 3.8 of the Anti-Dumping Agreement in cases involving future 
injury.  Article 3.8 requires that Members “considered and decided” with “special care” in the 
application of anti-dumping measures based on future injury findings.  By extending the period of 
time outward (with no limitations) within which the Commission must consider whether domestic 
producers might be injured, the statutory provisions fail to satisfy the “likely” analysis mandated by 
Articles 11.3, 3.1, 3.2, 3.4, 3.7, and 3.8 of the Anti-Dumping Agreement. 
 
                                                      
260 See, e.g., Asociacion de Productores de Salmon y Trucha de Chile AG v. United States Int’l Trade 
Comm’n, 180 F. Supp. 2d 1360, 1371-72 (CIT 2002)(ARG-13)(“Both the dictionary definition and case law 
from the CIT demonstrate that the statutory term ‘imminent’ only means impending . . . [and not necessarily immediate]”) (ARG-13); Goss Graphics Systems v. United States , 33 F. Supp. 2d 1082, 1102-04 (CIT 
1998)(ARG-10)(basis for threat of injury finding was a decline in the industry’s market share that was projected 
to manifest itself over two years into the future). 
261 The Commission has never defined what constitutes a “reasonably foreseeable time.”  The 
Commission provides no parameters and simply makes such decisions on a case-by-case basis. 
262 Commission’s Sunset Determination at 7-8 and n.41 (ARG-54). WT/DS268/R 
Page A-76  
 
 2. The Commission’s application of 19 USC. §§ 1675a(a)(1) and (5) in it the Sunset Review 
of OCTG from Argentina was inconsistent with Articles 11.3 and 3 of the Anti-Dumping 
Agreement 
276. As applied in this case, the Commission provides no clue as to what time period it considered 
to be a “reasonably foreseeable time” in making it s decision that injury to the domestic industry 
would be likely to continue or recur if the orders were revoked.  It merely quotes the SAA, which 
provides that “a ‘reasonably foreseeable time’ will vary from case-to-case, but normally will exceed 
the ‘imminent’ time frame applicable in a threat of injury analysis . . . .”
263  Thus, the Commission 
interprets the SAA language as  giving it carte blanche to define the concept of “reasonably 
foreseeable time” any way it wishes, depending on the circumstances of each investigation.  
277. The Commission cites to certain factors enumerated in the SAA that it “should” consider in 
defining what its “reasonably foreseeable time” sh ould be, in particular:  (1) the fungibility or 
differentiation within the product in question, (2) the level of substitutability between the imported 
and domestic products, (3) the channels of distribution used, (4) the methods of contracting (e.g., spot sales or long-term contracts), (5) lead times for delivery of goods, and (6) planned investment and the shifting of production facilities.
264  In these reviews, however, the Commission (with one exception) 
fails to analyze any of these factors in determin ing what length of time it considers reasonably 
foreseeable.265  For example, the Commission alludes to the issues of fungibility and channels of 
distribution in the section of its opinion discussing the likelihood of a reasonable overlap of 
competition, but fails to link these analyses to any conclusions concerning the time frame within which injury is likely to continue or recur.
266  Consequently, even if the statutory language were 
consistent with the Anti-Dumping Agreement, the Commission failed to apply the statutory language 
to the evidence before it to conclude that revocation of the orders would likely lead to continuation or 
recurrence of injury. 
 
D. THE COMMISSION ’S APPLICATION OF A “CUMULATIVE ” INJURY ANALYSIS IN THE SUNSET 
REVIEW OF THE ANTI -DUMPING DUTY MEASURE ON OCTG  WAS INCONSISTENT WITH 
ARTICLES 11.3  AND 3.3 OF THE ANTI-DUMPING AGREEMENT  
278. The Commission’s application of a cumulative injury analysis in the sunset review of OCTG 
from Argentina violated Article 11.3 and Article 3.3. 
 279. Article 11.3 of the Anti-Dumping Agreement provides each WTO Member with the right to 
have an anti-dumping measure affecting its export s removed after five years, unless doing so would 
be likely to lead to continuation or recurrence of injury.  The United States never made such a finding 
in this case.  The Commission never analyzed th e effect of removing the anti-dumping measure on 
Argentine OCTG.  Rather, the Commission performed a cumulative assessment, which essentially 
conditioned Argentina’s right under Article 11.3 upon the actions of exporters from other WTO 
Members, and the Commission’s interpretation of those actions. 
 
280. There is no basis in the text of Article 11.3 to suggest that Argentina’s rights to have anti-
dumping measures expire were intended to be conditio ned in this way.  Instead, Argentina has a right 
to expect termination, unless there is a finding based on positive evidence that termination of the anti-
                                                     
 
263 Id. 
264 Id. at n.40. 
265 Commission Koplan defines “reasonably foreseeable time” as “the length of time it is likely to take 
for the market to adjust to a revocation or termination.”  Id. at 8 n.41.  Even Commissioner Koplan, however, 
although mentioning the enumerated factors in the SAA, does not provide any indication as to the parameters of 
that time period.   
266 Id. at 12-13.  WT/DS268/R 
 Page A-77 
 
 
 dumping measure on Argentine OC TG (not all anti-dumping measures on OCTG from other 
countries) would be likely to lead to a continuation or recurrence of injury. 
 
281. The US position regarding cumulative assessment is inconsistent with the plain meaning of 
Article 11.3, and the object and purpose of the sunset provision. 
 
282. First, the specific reference in the text of Article 11.3 to “an anti-dumping duty” is singular 
and not plural, which on its face refers to one measure, and not multiple anti-dumping measures.  
Indeed, the United States takes the position that sunset reviews must be conducted on an order-wide  
basis.267  
 283. Second, the text of Article 3.3 makes clear that  cumulation is permitted only in investigations.  
Moreover, there is no cross-referenc e in Article 3.3 to Article 11.3. 
 
284. Third, there is no explicit cross-reference to either cumulation or to Article 3.3 in the 
immediate context of Article 11 ( i.e., Articles 11.1, 11.2, 11.4, or 11.5) or in the broader context of 
the Anti-Dumping Agreement.  In Steel from Germany , the Appellate Body considered whether any 
de minimis  standard was intended to apply to sunset revi ews by “implication” with an analysis of the 
text of Article 21.3 and Article 11.9.  The Appellate Body found no such implication.  The Appellate 
Body examined the provisions of Article 21.4 and 21.5, which contain explic it cross-references to 
other SCM Agreement provisions.  The Appellate Body  concluded that these ex plicit cross-references 
to other provisions, combined with the absence of cross-referencing to the de minimis provision, 
indicated that the drafters intended there to be no
 de minimis  standard applicable to Article 21.3. 
 
285. Fourth, neither an analysis of the object and purpose of the sunset provisions nor 
consideration of the object and purpose of the Anti-Dumping Agreement su ggests that a cumulated 
injury approach analysis is somehow implied in Article 11.3.  In fact, the opposite is true:  WTO 
Members agreed to provisions that would ensure that anti-dumping measures would not continue in 
perpetuity. 
 
286. Fifth, the reasoning of the Appellate Body suggests that it understands that the injury analysis 
in a sunset review is not conducted on a cumulated basis:  “Thus, in our view, the terms 
‘subsidization’ and ‘injury’ each have an independent meaning in the SCM Agreement which is not 
derived by reference to the other.  It is unlikely  that very low levels of subsidization could be 
demonstrated to cause  ‘material’ injury.” Steel from Germany, para. 81 (italics in original).  Such a 
statement would be true only where the injury an alysis is not conducted on a cumulated basis. 
 
287. Finally, it is important to emphasize that this is an issue of first impression at the WTO.  
Indeed, the Panel in Sunset Review of Steel from Japan  confirmed that: 
 
According to Japan, the logical consequence of the US proposition that the 
quantitative criteria set out in Article 3.3 do not apply in sunset reviews is that the US 
administering authorities cannot cumulate in sunset reviews.  However, Japan 
clarified that it is not arguing before us that cumulati on cannot be used at all in the 
injury component of a sunset review.  For this reason, we do not address the more 
general issue of whether or not cumulation is permitted in sunset reviews.268 
                                                      
267 US First Written Submission, United States – Sunset Review of Anti-Dumping Duties on Corrosion-
Resistant Carbon Steel Flat Products from Japan , WT/DS244 (7 October 2002), para. 162. 
268 Panel Report, Sunset Review of Steel from Japan , para. 7.104 (citing Second Oral Submission of 
Japan, para. 51; Response of Japan to Question 22 from the Panel). WT/DS268/R 
Page A-78  
 
 E. A
SSUMING ARGUENDO  THAT ARTICLES 3.3 AND 11.3  DO NOT PRECLUDE CUMULATION IN 
ARTICLE 11.3  REVIEWS , THEN THE TERMS OF ARTICLE 3.3 APPLY TO ANY SUCH CUMULATIVE 
ANALYSIS IN A SUNSET REVIEW .  APPLICATION OF EITHER THE DE MINIMIS  OR NEGLIGIBILITY 
REQUIREMENTS (BOTH OF WHICH MUST BE SATISFIED ) WOULD HAVE PREVENTED 
CUMULATION IN THIS CASE .  THE COMMISSION ’S CUMULATIVE INJURY ANALYSIS IN THE 
COMMISSION ’S SUNSET DETERMINATION FAILED TO SATISFY THE ARTICLE 3.3 
REQUIREMENTS  
288. Assuming arguendo  that Articles 3.3 and 11.3 do not preclude cumulation in Article 11.3 
reviews, then the terms of Article 3.3 must be applied to any such cumulative analysis in a sunset 
review.  Indeed, the application of either the de minimis  or negligibility requirements (both of which 
must be satisfied) would have prevented cumula tion in this case.  The Commission’s cumulative 
injury analysis in the Commission’s Sunset Dete rmination thus failed to satisfy the Article 3.3 
requirements. 
 
289. Article 11.3’s use of the word “injury” in the mandate that the authorities determine whether 
termination of the anti-dumping measure “would be likely to lead to continuation or recurrence of dumping and injury” means, as explained above, that the requirements of Article 3 apply to such 
determination. 
 
290. In any event, as applied in this case, cumulation would have been prevented as a result of the 
clear language of Article 3.3 of the Agreement.  Article 3.3 provides, in relevant part, that: 
 
Where imports of a product from more than one country are simultaneously subject to 
anti-dumping investigations, the investigatin g authorities may cumulatively assess the 
effects of such imports only if they determine that (a) the margin of dumping 
established in relation to the imports from each country is 
more than  de minimis  as 
defined in paragraph 8 of Article 5 and the volume of imports from each country is 
not negligible and (b) a cumulative assessment of the effects of the imports is appropriate in light of the conditions of competition between the imported products 
and the like domestic product. 
291. For Argentina, the margin of dumping found by the Department of Commerce in its sunset 
determination was only 1.36 per cent , far below the 2 per cent level that the Agreement establishes as 
de minimis .
269  Moreover, the volume of imports from Argentina during the period examined never 
exceeded 3 per cent of total imports, which is the standard for negligibility under the Anti-Dumping 
Agreement.270  Accordingly, it was a clear violation of Articles 11.3 and 3.3 the Anti-Dumping 
Agreement for the Commission to cumulate imports from Argentina with those from Italy, Japan, 
Korea, and Mexico in these sunset reviews. 
 
                                                      
269 Commission’s Sunset Determination at I-14 (Staff Report)(ARG-54)(citing 65 Fed. Reg. 66,701, 
7 November 2000).  Paragraph 8 of Article 5 of the Agreement provides that “the margin of dumping shall be 
considered to be de minimis  if this margin is less than 2 per cent, expressed as a percentage of the export price.” 
270 Commission’s Sunset Determination at IV-3, table IV-1 (Staff Report)(ARG-54).  In 2000, by 
quantity, imports from Argentina represented 2.9 per cent of total imports, and were less than 1.0 per cent of 
such imports in each of the four preceding calendar years.  These percentages are all below the 3 per cent 
standard established by US law.  19 USC. § 1677(24)(A)(i)(ARG-2).  WT/DS268/R 
 Page A-79 
 
 
 F. THE COMMISSION ’S USE OF A CUMULATED INJURY ANALYSIS IN THIS SUNSET REVIEW WAS 
INCONSISTENT WITH ARTICLES 11.3  AND 3.1 OF THE ANTI-DUMPING AGREEMENT BECAUSE IT 
PREVENTED THE COMMISSION FROM APPLYING A “LIKELY ” STANDARD , AND WAS NOT BASED 
ON POSITIVE EVIDENCE  
292. The Commission’s application in this case of the cumulation provision of the anti-dumping 
statute is inconsistent with the Agreement in an other fundamental respect.   Article 11.3 of the 
Agreement provides that the administering aut hority shall terminate anti-dumping duties after 
expiration of a five-year period unless the authority determines that removing the duty would be likely  
to lead to continuation or recurrence of injury.  As  noted above, the Article 11 .3 standard of likelihood 
of continuation or recurrence of injury involves the probability that the result in question will occur.  However, in reaching its decision to cumulate in  this case, the Commission considered whether 
imports from each subject source have any possible
 discernible adverse impact on the domestic 
industry.271  The Commission cumulated the imports because it did not  find that the imports would 
have no  discernible adverse impact on the domestic industry. 
 293. Inasmuch as the language in the standard applied by the Commission is written in the form of two negative clauses,
272 an equivalent reading of the language is that the Commission cumulated 
imports of subject merchandise from sources that, considered individually, have any possible adverse 
impact on the domestic industry.  This low standard runs directly counter to the “likely” standard 
established by Article 11.3.273  While the Commission applied this low standard to the decision to 
cumulate and not directly to its d ecision of likelihood of injury, it cannot be seriously argued that an 
affirmative likelihood of injury determination could ha ve been made in this case without a decision to 
cumulate the imports from the investigated countries. 
 
294. The Commission’s use of a “possibility” standard for cumulation also conflicts with the 
reasoning of the Appellate Body in Steel from Germany , and the evidentiary requirements of 
Article 3.1 of the An ti-Dumping Agreement .  The Appellate Body stated “[i]t is unlikely  that very low 
levels of subsidization could be demonstrated to cause  ‘material’ injury,”274 and it added that “[w]here 
the level of subsidization at the time of the review is  very low, there must be persuasive evidence that 
revocation of the duty would nevertheless lead to injury to the domestic industry.”275  As stated above, 
Argentina believes that the practice of cumulation itself is inconsistent with Articles 11.3 and 3.3 of 
the Agreement, and that it conflicts with the above- quoted reasoning of the Appellate Body.  The low 
“possibility” standard that the Commission used in deciding whether to cumulate in this case made cumulation unavoidable, and allowed the Commission to make an affirmative “likelihood” 
determination without the type of “persuasive evidence” required by the Appellate Body. 
 
IX. THE IDENTIFIED US MEASURES ARE INCONSISTENT WITH ARTICLE VI OF 
THE GATT 1994, ARTICLES 1 AND 18 OF THE ANTI-DUMPING AGREEMENT, 
AND ARTICLE XVI:4 OF THE WTO AGREEMENT 
295. The measures identified by Argentina in its Panel request, including the Department’s 
determination to conduct an expedited review, the Department’s Sunset Determination, the 
                                                     
 
271 Commission’s Sunset Determination  at 6, 10-16. 
272 See 19 USC. § 1675a(a)(7) (“…The Commission shall not cumulatively assess the volume and 
effects of imports of the subject merchandise in a case in which it determines that such imports are likely to have no discernible adverse impact on the domestic industry.”) 
273 See Panel Report, DRAMS From Korea  at paras. 6.48, 6.52-6.58.  The panel found that “[a] finding 
that an event is ‘likely’ implies a greater degree of certainty that the event will occur than a finding that the event is not ‘not likely.’” 
274 Appellate Body Report, Steel from Germany, para. 81 (italics in original). 
275 Id. at para. 88. WT/DS268/R 
Page A-80  
 
 Commission’s Sunset Determination, the Department ’s Determination to Con tinue the Order, and the 
relevant US laws, regulations, policies and procedur es, are inconsistent with the obligations of the 
United States with Article VI of the GATT 1994 , Articles 1, 18.1 and 18.4 of the Anti-Dumping 
Agreement, as well as Article XVI:4 of the WTO Agreement.  
 
A. T
HE US MEASURES VIOLATE THE BASIC PRINCIPLES OF THE ANTI-DUMPING AGREEMENT , AS 
PROVIDED IN ARTICLE 1 
296. Article 1 of the Anti-Dumping Agr eement (“Principles”) states that:  
 
An anti-dumping measure shall be applied only under the circumstances provided for in Article VI of  GATT 1994 and pursuant to  investigations initiated and conducted in 
accordance with the provisions of this Agreement.  The following provisions govern 
the application of Article VI of GATT 1994 in so far as action is taken under anti-
dumping legislation or regulations. [footnote omitted] 
297. Article 1 thus provides that anti-dumping measures, including those related to sunset reviews, 
can be applied only under the circumstances provide d for in GATT Article VI .  The application of 
GATT Article VI, in turn, is governed by the provisio ns of the Anti-Dumping Agreement.  Therefore, 
any breach of a provision of the Agreement, by definition, entails a consequential violation of 
Article 1. 
 
298. As noted by the Panel in the 1916 Anti-Dumping Act dispute: 
 
As far as Article 1 is concerned, we note th at if we find a violation of other provisions 
of the Anti-Dumping Agreement, it will be demonstrated that an anti-dumping 
investigation under the 1916 Act is not “ini tiated or conducted in accordance with the 
provisions of this Agreement” and a br each of Article 1 will be established.
276 
299. Argentina has demonstrated in this submission that the identified US measures, both as such 
as applied, violate the obligations of the Un ited States under the Anti-Dumping Agreement.  
Therefore, the identified US measures also violate Article 1. 
 
B. THE IDENTIFIED US MEASURES , WHICH CONSTITUTE A “SPECIFIC ACTION AGAINST DUMPING ,” 
VIOLATE ARTICLE 18.1  OF THE AGREEMENT  
300. Article 18.1 states that: 
 
No specific action against dumping of ex ports from another Me mber can be taken 
except in accordance with the provisions of  GATT 1994, as interpreted by this 
Agreement.  [footnote omitted] 
301. The Appellate Body recently explained the tw o “conditions precedent” that must be met for 
Article 18.1 to apply: 
 
The first is that a measure must be “sp ecific” to dumping or subsidization. The 
second is that a measure must be “against” dumping or subsidization. These two 
                                                      
276 United States – Anti-Dumping Act of 1916,  Complaint by the European Communities, Report of the 
Panel, para. 6.208.  The Panel considering the complaint by Japan reached the same conclusion:  see United 
States – Anti-Dumping Act of 1916,  Complaint by Japan, Report of the Panel, para. 6.264.  The Appellate Body 
upheld these findings regarding the violation of Article 1:  Appellate Body Report, United States – Anti-
Dumping Act of 1916 , paras. 134-135.    WT/DS268/R 
 Page A-81 
 
 
 conditions operate together and complement each other . . . .   If . . . it is established 
that a measure meets these two conditions, and thus falls within the scope of the 
prohibitions in [that provision], it would then  be necessary to move to a further step 
in the analysis and to determine whether the measure has been "taken in accordance 
with the provisions of GATT 1994", as in terpreted by the Anti-Dumping Agreement. 
. . .  If it is determined that this is no t the case, the measure would be inconsistent 
with Article 18.1 of the Anti -Dumping Agreement. . . . .277 
302. A “specific action against dumping” of exports is an “action that is taken in response to 
situations presenting the constituent elements of ‘dumping’.”278  The “constituent elements of 
dumping”, in turn, are “found in the definition of dumping in Article VI:1 of the GATT 1994, as elaborated in Article 2 of the Anti-Dumping Agreement.”
279  A measure can be considered to have 
been taken ‘against’ dumping wher e it creates “‘opposition’ to dumpin g . . . such that it dissuades 
[this practice], or creates an incentive to terminate [it].” 280 
 
303. It is uncontroversial that the US measures identified by Argentina are all “specific actions 
against dumping of exports,” in this case exports of OCTG from Argentina.  The US sunset review laws, by their own terms, are predicated upon the ex istence of a dumping order, and can only operate 
in such circumstances.  The “constituent elements  of dumping” clearly exist.  The dumping order 
against OCTG from Argentina, and the contin uation of this order following the Sunset 
Determinations, were incontestably taken as measures “against” dumping.  These threshold issues can 
therefore be disposed of quickly.  304. Then Panel then needs to “move to a further st ep in the analysis,” as stated by the Appellate 
Body, to “determine whether the measure has been ‘t aken in accordance with the provisions of GATT 
1994’, as interpreted by the Anti-Dumping Agreement.”  Argentina’s submission has demonstrated 
numerous violations of the Anti-Dumping Agreement by the United States.  As such, by definition the 
measures have not been taken in accordance GA TT Article VI, as interpreted by the Anti-Dumping 
Agreement.  
305. Moreover, DSU Article 3.8 provides in part that: 
 
In cases where there is an infringement of the obligations assumed under a covered agreement, the action is considered  prima facie to constitute a case of nullification or 
impairment. 
306. The United States has infringed its obliga tions under the Anti-Dumping Agreement and the 
GATT 1994, and as such has nullified or impaired the benefits accruing to  Argentina under these 
agreements.
281 
                                                      
277 Appellate Body Report, United States – Continued Dumping and Subsidy Act of 2000 , 
WT/DS217/AB/R, WT/DS234/AB/R, adopted on 27 January 2003, para. 236 (“ United States – Continued 
Dumping and Subsidy Act ”). 
278 Appellate Body Report, United States – Anti-Dumping Act of 1916 , para. 130. 
279 Id. at paras.105-106 and 130; Appellate Body Report, United States – Continued Dumping and 
Subsidy Act , para. 240. 
280 Appellate Body Report, United States – Continued Dumping and Subsidy Act , para. 259. 
281 In the Byrd Amendment  case, the Appellate Body stated: 
 
We conclude that, to the extent we have found that the CDSOA is inconsistent with 
Article 18.1 of the Anti-Dumping Agreement  and Article 32.1 of the SCM Agreement, the 
[Byrd Amendment] nullifies or impairs benefits accruing to the appellees in this dispute under 
those Agreements. 
 WT/DS268/R 
Page A-82  
 
  
C. T
HE UNITED STATES HAS FAILED TO ENSURE CONFOR MITY OF ITS MEASURES WITH ITS WTO  
OBLIGATIONS , IN VIOLATION OF ARTICLE 18.4  OF THE ANTI-DUMPING AGREEMENT AND 
ARTICLE VI:4  OF THE WTO  AGREEMENT  
307. Article 18.4 of the Anti-Dumping Agreement provides that: 
 
Each Member shall take all necessary steps, of a general or particular character, to 
ensure, not later than the date of entry into force of the WTO Agreement for it, the 
conformity of its laws, regulations and admi nistrative procedures with the provisions 
of this Agreement as they may apply for the Member in question. 
308. Any violation of any provision of the Anti-Dumping Agreement therefore triggers a 
consequential violation of Article 18.4 of the Anti-Dumping Agreement. 
 
309. Article XVI:4 of the WTO Agreement states: 
 
Each Member shall ensure the conformity of its laws, regulations and administrative 
procedures with its obligations as provided in the annexed Agreements. 
310. Any violation of any provision of a covered agreement will similarly trigger a consequential 
violation of Article 18.4 of Article XVI:4. 
 
311. In the Byrd Amendment  case the Appellate Body found that: 
 
As a consequence of our finding that the Un ited States has acted inconsistently with 
Article 18.1 of the Anti-Dumping Agreement  and Article 32.1 of the SCM 
Agreement, we uphold the Panel's finding that the United States has failed to comply 
with Article 18.4 of the Anti-Dumping Agreement, Article 32.5 of the SCM 
Agreement and Article XVI:4 of the WTO Agreement.282 
312. Other cases have also followed this approach.  For example, the Hot-Rolled Steel from Japan  
Panel concluded that a certain US law was:  
inconsistent with Article 9.4 of the AD Agreement, and . . . therefore the United 
States has acted inconsistently with its obligations under Article 18.4 of the AD 
Agreement and Article XVI:4 of the Marrakesh Agreement by failing to bring that 
provision into conformity with its obligations under the AD Agreement.
283   
313. Therefore, a finding by this Panel that the Un ited States has acted inconsistently with any of 
its obligations under the Anti-Dumping Agreement will necessitate a finding that it has also acted 
inconsistently with Article 18.4 of the Anti -Dumping Agreement and Article XVI:4 of the WTO 
Agreement.  
                                                                                                                                                                    
 
Appellate Body Report, United States – Continued Dumping and Subsidy Act , para. 304. 
 
282 Id. at para. 302. 
283 Panel Report, Hot-Rolled Steel from Japan , para. 8.1.  WT/DS268/R 
 Page A-83 
 
 
 X. CONCLUSION  
314. As demonstrated herein, Argentina respectfu lly requests that the panel find the following 
violations by the United States of the Anti-Dumping Agreement, the GATT 1994, and the WTO 
Agreement: 
 
A. US SUNSET REVIEW STATUTORY , REGULATORY , AND ADMINISTRATIVE PROVISIONS AS SUCH 
VIOLATE THE ANTI-DUMPING AGREEMENT AND THE WTO  AGREEMENT  
• By mandating that the Department issue a likelihood of dumping determination, without the 
conduct of a review, without any substantive analysis, and without making the requisite 
determination, 19 USC. § 1675(c)(4) and 19 C.F.R. § 218(d)(2)(iii) (the “waiver provisions”) 
violate Article 11.3 of the Anti-Dumping Agreement; 
 
•  By precluding respondent interest parties the ab ility to provide information and to defend their 
interest in a manner inconsistent with the requirements of the Anti-Dumping Agreement, 19 
USC. § 1675(c)(4) and 19 C.F.R. § 218(d)(2)( iii) violate Articles 6.1 and 6.2 of the Anti-
Dumping Agreement; 
 
• By requiring that the Commission determine whether injury would be likely to continue or 
recur “within a reasonably foreseeable time” (19 USC. § 1675a(a)(1)) and that the 
Commission “shall consider that the effects of revocation or termination may not be imminent, 
but may manifest themselves only over a longer  period of time” (19 USC. § 1675a(a)(5)), 
these statutory provisions violate Articles 3.1, 3.2, 3.4, 3.5, 3.7, 3.8, 11.1, and 11.3 of the Anti-
Dumping Agreement; 
 
• By establishing an irrefutable presumption that dumping is likely to continue or recur in the 
event of termination of the anti-dumping measure, the SAA (pages 888-889) and the Department’s Sunset Policy Bulletin  (section II.A.3), as further demonstrated by the 
Department’s consistent practice, violate Article 11.3 of the Agreement. 
 
B. T
HE DEPARTMENT ’S SUNSET REVIEW DETERMINATION VIOLATES THE ANTI-DUMPING 
AGREEMENT AND THE GATT  1994 
• By conducting an expedited sunset review on the basis of Siderca’s OCTG exports to the 
United States being less than 50 per cent of the total OCTG exports from Argentina to the 
United States, the Department violated Articles 6.1, 6.2, 6.8, and Annex II of the Anti-
Dumping Agreement; 
 
• By conducting an expedited sunset review, th e Department rendered a determination of 
likelihood of continuation or recurrence of du mping without any analysis, in violation of 
Article 11.3 of the Anti-Dumping Agreement. 
 
• By conducting an expedited review and applying the waiver provisions to Siderca, the 
Department violated Articles 6.1, 6.2, 6.8, and Annex II of the Anti-Dumping Agreement; 
 
• By failing to provide public notice and explanati ons in sufficient detail the findings of all 
issues of fact and law in the Department’s de termination to conduct an expedited review, and 
the Department’s Sunset Determination,  which incorporated the Department’s Issues and 
Decision Memorandum by reference, the Department violated Articles 12.2 and 12.2.2 of the 
Anti-Dumping Agreement; 
 WT/DS268/R 
Page A-84  
 
 • By failing to apply the correct standard, by failing to conduct a prospective analysis, by failing 
to make a determination of likelihood of dum ping on the basis of positive evidence, the 
Department’s Sunset Determination is inconsis tent with Article 11.3 of the Anti-Dumping 
Agreement; 
 
• In the alternative, if the Pa nel finds that the SAA and the Sunset Policy Bulletin  are not 
measures which can be challenge d under the DSU (the finding requested by the fourth item in 
Section A, above), then by failing to administer  in an impartial and reasonable manner US 
anti-dumping laws, regulations, decisions and rulings with respect to the Department’s conduct 
of sunset reviews of anti-dumping duty orders, th e United States violated Article X:3(a) of the 
GATT 1994. 
 
C. T
HE COMMISSION ’S SUNSET REVIEW DETERMINATION VIOLATES THE ANTI-DUMPING 
AGREEMENT  
• By failing to apply to a “likely” or “probable”  standard, the Commission violated Articles 3.1 
and 11.3 of the Anti-Dumping Agreement; 
 
• By failing to conduct an objective examination of  the record and to base its determination on 
positive evidence, the Commission violated Articles 3.1, 3.2, 3.4, 3.5, and 11.3 of the Anti-
Dumping Agreement; 
 
• By failing to evaluate all the relevant econo mic factors and indices having a bearing on the 
state of the industry, including those enumerated  in Article 3.4 of Anti-Dumping Agreement, 
the Commission violated Article 3.4.  By failin g to assess a causal relationship between the 
dumped imports and the injury to the domestic industry, the Commission also failed to satisfy the causation requirements of Article  3.5 of the Anti-Dumping Agreement; 
 
• By cumulatively assessing the effects of OCTG imports from Korea, Italy, Japan, and Mexico 
to determine whether termination of the anti-du mping duty on Argentine OCTG imports would 
be likely to lead to continuation or recurren ce of injury, the Commission violated Articles 3.3 
and 11.3 of the Anti-Dumping Agreement, which preclude the use of a cumulated injury 
analysis in sunset reviews; and 
 
• In the alternative, if a cumulated injury analys is is permitted in sunset reviews, by failing to 
apply the de minimis  and negligibility requirements of Artic le 3.3 to the review of OCTG from 
Argentina, the Commission violated Articles 3. 3 and 11.3 of the Anti-Dumping Agreement, as 
application of either of these provisions would have precluded the Commission from 
conducting a cumulated injury analysis in the case of the sunset review of OCTG from 
Argentina.  Finally, the Commission’s use of a cumulated injury analysis violated the “likely” 
standard of Article 11.3  and resulted in an injury determina tion that was not based on positive 
evidence. 
 
D. C
ONSEQUENTIAL VIOLATIONS BY THE UNITED STATES OF THE ANTI-DUMPING AGREEMENT , 
THE GATT  1994,  AND THE WTO  AGREEMENT  
• Because the United States violated its obligati ons under the Anti-Dumping Agreement, it also 
violated the provisions of Article VI of the GATT 1994, Articles 1 and 18 of the Anti-
Dumping Agreement, and Article XVI:4 of the WTO Agreement. 
  WT/DS268/R 
 Page A-85 
 
 
 • By failing to ensure the conformity with the above noted laws, regulations and administrative 
procedures with its WTO obligations, the United States has violated Article 18.4 of the Anti-
Dumping Agreement; and 
 
• By failing to ensure the conformity with the above noted laws, regulations and administrative 
procedures with its WTO obligations, the Unite d States has violated Article XVI:4 of the 
WTO Agreement. 
 XI. REQUEST FOR SUGGESTIONS FROM THE PANEL ON THE MANNER IN 
WHICH THE UNITED STATES SHOULD IMPLEMENT THE PANEL’S 
RECOMMENDATIONS 
315. Article 19.1 of the DSU provides that where a panel concludes that a measure is inconsistent 
with a covered agreement, it shall recommend that the Member concerned bring the measure into conformity with that agreement. 
 
316. DSU Article 19.1 also provides that in addition to its recommendations, the panel may 
suggest ways in which the Member concerned could implement the recommendations.  Argentina 
would request the Panel to make such recommendations in the present case. 
 
317. In light of the pervasive and fundamental violations by the United States of its WTO 
obligations, as demonstrated in this submission, Argentina respectfully requests that the panel suggest 
that the United States implement the recommendations by terminating the anti-dumping duties on 
OCTG from Argentina, and by repealing its WTO-in consistent laws, regulations, and procedures or 
by amending such laws, regulations, and procedures to eliminate the WTO-inconsistencies. 
 
318. The following essential facts provide context for this request. 
 
319. Pursuant to Article 11.3 of the Anti-Dumpin g Agreement, the United States had a clear and 
unambiguous obligation to terminate the US anti-dumping measure on Argentine OCTG, unless the United States determined that termination of the me asure would be likely to l ead to continuation or 
recurrence of both dumping and injury.  As Argentina has demonstrated, the United States failed to make the requisite determinations regarding likelihood of dumping and injury.  The Department did 
not conduct the required review, nor did it make the required determination of likelihood of dumping.  
Instead, the Department determined Siderca to ha ve submitted an inadequate response and therefore 
to have waived its participation in the sunset review.  The Commission also failed to make the 
required determination of likelihood  of injury.  In its review, the Commission failed to respect the 
disciplines of Article 3, failed to conduct an objective examination, and failed to base its decision on 
positive evidence.  Instead, the Commission examined the cumulative effects of OCTG exports from 
other countries, and determined that termination of anti-dumping duties on Argentine OCTG could possibly  (not “probably” or “likely”) cause injury at some, undefined “ reasonably foreseeable time, ” 
to the US industry in the event of termination. 
 
320. The US anti-dumping measure on Argentine OCTG should have been terminated in 2000.  
However, the duties were not terminated, and have remained in place for almost nine years since their 
imposition.  The nearly decade-long imposition of du ties coupled with the perv asive violations of the 
Anti-Dumping Agreement associated with the US s unset proceedings highlights the importance that 
the panel make a specific suggestion regarding the manner in which the United States should 
implement its findings. 
 
321. In light of the obligations in Article 11.3, the chance to renew the duties in the sunset review 
determination arise only at the time of the expiry of the five year period of the duty.  Such a review WT/DS268/R 
Page A-86  
 
 can be conducted only once.  Additionally, as stat ed in Article 11.1, which provides context for the 
obligation in Article 11.3, the duty “shall remain in force only as long as and to the extent necessary 
to counteract dumping which is causing injury.”  If  in this context, an authority failed to conduct the 
review according to the Anti-Dumpin g Agreement, then there is no chan ce for that Member to cure in 
a subsequent proceeding.   Otherwise, the principal obligation of Article 11.3 ( i.e., termination of the 
duties) will be defeated because Members would alwa ys be able to continue  the measure and delay 
any substantive analysis until afte r the dispute settlement process. 
 
322. Argentina recalls the Appellate Body’s statement in Steel from Germany :  “If [a WTO 
Member] does not conduct a sunset review, or, having conducted such a review, it does not make such a positive determination, the duties must be terminated.”
284 
 
323. Accordingly, the United States had an obli gation to terminate the anti-dumping measure on 
OCTG from Argentina in order to comply with its obligation under Article 11.3.  Argentina 
respectfully notes that the infringement of its right to have the measure terminated after five years 
cannot be cured by subjecting Siderca to additional US reviews.  Argentina sees no other way than 
termination of the measure for the United States to comply with its obligations under Article 11.3.  
Argentina respectfully requests that the panel, in addition to making specific findings of WTO 
violations, suggest that the United States implemen t the panel’s recommendations by terminating the 
anti-dumping duties on OCTG from Argentina, an d by repealing or amending WTO-inconsistent 
laws, regulations, procedures, and administrative provisions.  
 
 
                                                     
 
284 Appellate Body Report, Steel from Germany , para. 63.  WT/DS268/R 
 Page A-87 
 
 
 ANNEX A-2 
 
FIRST WRITTEN SUBMISSION  OF THE UNITED STATES 
 
7 November 2003 
  
TABLE OF CONTENTS 
Page
 
I. INTRODUCTION ..................................................................................................................9 1 
II. PROCEDURAL BACKGROUND ........................................................................................92  
III. FACTUAL BACKGROUND.................................................................................................95  
A. SUNSET REVIEWS UNDER US LAW ............................................................................................96  
1. The Statute.................................................................................................................... ...........96  
(a) Statutory Provisions Related to Commerce’s Determination ...................................................96  
(b) Statutory Provisions Related to the ITC’s Determination.........................................................97  
2. The Regulations................................................................................................................ .......98  
(a) Commerce Regulations........................................................................................................... ..98 
(b) ITC Regulations................................................................................................................ ........99  
3. Commerce’s Sunset Policy Bulletin .......................................................................................99  
B. CERTAIN OCTG  FROM ARGENTINA ........................................................................................100  
1. The Anti-Dumping Duty Investigation Order....................................................................100  
2. The Sunset Review and Determination.... .................... ................. .............. ........................100  
(a) Commerce’s Determination of Likelihood of Cont inuation or Recurrence of Dumping .......100  
(b) The ITC’s Determination of Likelihood of Continuation or Recurrence of Injury ................102  
(c) Notice of Continuation of the Order .......................................................................................106  
IV. REQUEST FOR PRELIMINARY RULINGS...................................................................106  
A. INTRODUCTION .......................................................................................................................106  
B. BECAUSE PAGE 4 OF ARGENTINA ’S PANEL REQUEST FAILS TO CONFORM TO THE 
REQUIREMENTS OF ARTICLE 6.2 OF THE DSU,  THE PANEL SHOULD FIND THAT THE 
CLAIMS SET FORTH ON PAGE  4 ARE NOT WITHIN THE PANEL ’S TERMS OF REFERENCE .........107  
1. Page 4 of the Panel Request does not “present the problem clearly” ..............................108  
2. The United States has been prejudiced by Argentina’s failure to comply with 
Article 6.2 of the DSU ......................................................................................................... ..111  
3. The Panel should find that the claims se t forth on Page 4 of Argentina’s Panel 
Request are not within the Panel’s Terms of Reference....................................................111  
C. BECAUSE SECTIONS B.1,  B.2 AND B.3 OF ARGENTINA ’S PANEL REQUEST DO NOT 
PRESENT THE PROBLEM CLEARLY WITHIN THE MEANING OF ARTICLE 6.2 OF THE DSU,  
THE PANEL SHOULD FIND THAT ARGENTINA ’S CLAIMS IN THOSE SECTIONS ALLEGING 
INCONSISTENCIES WITH ARTICLE 3 AND ARTICLE 6 OF THE AD AGREEMENT ARE NOT 
WITHIN THE PANEL ’S TERMS OF REFERENCE .........................................................................112  WT/DS268/R 
Page A-88  
 
 D.
 THE PANEL SHOULD FIND THAT CERTAIN MATTERS INCLUDED IN ARGENTINA ’S FIRST 
SUBMISSION ARE NOT WITHIN THE PANEL ’S TERMS OF REFERENCE BECAUSE THOSE 
MATTERS WERE NOT INCLUDED IN ARGENTINA ’S PANEL REQUEST .......................................115  
1. Argentina’s claim that Commerce’s sunset review practice, both as such and as 
applied, is inconsistent with Article 11.3 of the AD Agreement........................................116  
2. Argentina’s claim that 19 USC. §§ 1 675(c) and 1675(a)(c), the SAA, and the 
Sunset Policy Bulletin , taken together, establish an irrefutable presumption that 
is inconsistent with Article 11.3 of the AD Agreement ......................................................116  
3. Argentina’s claim that Commerce’s sunset review practice is inconsistent with 
Article X:3(a) of the GATT 1994.........................................................................................117  
4. Argentina’s claim that the ITC’s application of 19 USC. §§ 1675a(a)(1) and (5) 
in the Sunset Review of OCTG from Argentina is inconsistent with Articles 11.3 
and 3 of the AD Agreement..................................................................................................118  
5. Argentina’s claim that the US measures it has identified are inconsistent with Article VI of the GATT 1994, Articles 1 and 18 of the AD Agreement, and Article XVI:4 of the WTO Agreement................................................................................118
 
E. CONCLUSION ...........................................................................................................................119  
V. GENERAL LEGAL PRINCIPLES.....................................................................................119  
A. SCOPE AND STANDARD OF REVIEW .........................................................................................119  
B. BURDEN OF PROOF :  ARGENTINA BEARS THE BURDEN OF PROVING ITS CLAIMS ....................120  
VI. LEGAL ARGUMENT..........................................................................................................120  
A. SECTION 751( C)(4) OF THE ACT AND SECTION 351.218( D)(2)( III) OF COMMERCE ’S 
SUNSET REGULATIONS – THE “WAIVER ” PROVISIONS – ARE NOT INCONSISTENT , AS 
SUCH , WITH THE AD AGREEMENT ..........................................................................................120  
1. The Waiver Provisions are not inconsis tent with the obligation to conduct a 
“review” and make a “determination” under Article 11.3 of the AD Agreement ..........122  
2. Section 751(c)(4) of the Act and Section 351.218(d)(2)(iii) of Commerce’s Sunset 
Regulations are not inconsistent with Articles  6.1 and 6.2 of the AD Agreement...........126  
(a) Section 751(c)(4) and Section 351.218(d)(iii)(2) Are Not Inconsistent with the 
Obligation Under Article 6.1 to Provide Ample Opportunity to Submit Written 
Information .................................................................................................................... .........127  
(b) Section 751(c)(4) of the Act and Secti on 351.218(d)(2)(iii) of Commerce’s Sunset 
Regulations Are Not Inconsistent with Article 6. 2 of the AD Agreement .............................128  
B. THE PANEL SHOULD REJECT ARGENTINA ’S CLAIMS CONCERNING AN ALLEGED 
“IRREFUTABLE PRESUMPTION ” AND ITS INCONSISTENCY WITH ARTICLE 11.3  OF THE 
AD A GREEMENT .....................................................................................................................129  
1. Argentina’s “irrefutable presumption” does not exis t ......................................................129  
2. Assuming arguendo  that a Commerce “irrefutable presumption” actually exists, 
the Sunset Policy Bulletin  and Commerce “practice”, as such, cannot be found to 
be inconsistent with Article 11.3 of the AD Agreement.....................................................133  
3. Assuming arguendo  that a Commerce “irrefutable presumption” actually exists, 
the Sunset Policy Bulletin  and Commerce “practice,” as applied generally, 
cannot be found to be inconsistent with Arti cle 11.3 of the AD Agreemen t ....................136   WT/DS268/R 
 Page A-89 
 
 
 4. Commerce’s Sunset Determination in  OCTG from Argentina was not 
inconsistent with Article 11.3 because of an “i rrefutable presumption” .........................136  
C. COMMERCE ’S SUNSET DETERMINATION IN OCTG  FROM ARGENTINA IS NOT 
INCONSISTENT WITH ARTICLES 11, 2, 6, OR 12 OF THE AD AGREEMENT ...............................136  
1. Commerce’s Determination to “expedite”  the Sunset Review of OCTG from 
Argentina is not inconsistent with the AD Agreement ......................................................137  
2. Commerce conducted a sunset review fo r the anti-dumping order of OCTG 
from Argentina and fully considered all record information in making the Final 
Sunset Determination ........................................................................................................... 138 
3. Commerce complied with the evidentiary and procedural requirements of 
Article 11.3 and Article 6 in the OCTG Sunset Review .......................... ...........................140  
(a) Commerce Afforded Siderca the Notice and Opportunity Required by Article 6.1 ...............140  
(b) Siderca Was Afforded An Opportunity For A Full Defense of Its Interests in 
Accordance With Article 6.2 ..................................................................................................14 2 
3. Commerce’s Final Sunset Determination in OCTG from Argentina is not 
inconsistent with the obligation contained in Article 12 of the AD Agreement...............144  
D. COMMERCE ’S ANALYSIS OF DUMPING IN THE CONTEXT OF THE LIKELIHOOD AND 
“MARGIN LIKELY TO PREVAIL ” DETERMINATIONS IN THE SUNSET REVIEW ON OCTG  
FROM ARGENTINA WERE NOT INCONSISTENT WITH ARTICLE 11.3  OF THE 
AD A GREEMENT .....................................................................................................................146  
1. Article 11.3 does not require a quantification of dumping or the use of any 
particular methodology for making the likelihood determination ...................................146  
2. The margins determined in Commerce’s  original investigation, and the 
methodologies used to derive them, cannot be ch allenged before this Panel...................148  
3. Commerce fully complied with its obligations under the AD Agreement in 
making the affirmative likelihood determination ..............................................................148  
4. There is no obligation under Article 11.3 of the AD Agreement to calculate or consider a margin likely to prevail upon expiry of the duty .............................................150
 
E. THE PANEL SHOULD REJECT ARGENTINA ’S CLAIM UNDER ARTICLE X:3( A) OF GATT  
1994 ........................................................................................................................... .............150  
F. THE ITC  APPLIED THE CORRECT STANDARD FOR DETERMINING WHETHER 
TERMINATION OF THE ANTI -DUMPING DUTY ORDER WOULD BE LIKELY TO LEAD TO 
CONTINUATION OR RECURRENCE OF INJURY , AND THE ITC’ S DETERMINATION OF 
LIKELIHOOD IN THE SUNSET REVIEW OF OCTG  FROM ARGENTINA WAS CONSISTENT 
WITH ARTICLE 11. 3 AND ARTICLE 3.1 OF THE AD AGREEMENT ...........................................152  
G. ARTICLE 3 DOES NOT APPLY TO SUNSET REVIEWS ..................................................................154  
H. THE PANEL SHOULD REJECT ARGENTINA ’S CLAIMS UNDER ARTICLE 3.1 OF THE 
AD A GREEMENT .....................................................................................................................157  
1. Article 3.1 does not apply to sunset reviews .......................................................................157  
2. The ITC’s Sunset Determination was consistent with Article 3.1, because it was 
based on a proper establishment of the relevant facts, an unbiased and objective 
evaluation of those facts, and positive evidence .................................................................158  
(a) The ITC’s Findings on the Likely Volume of Imports ...........................................................159  WT/DS268/R 
Page A-90  
 
 (b)
 The ITC’s Findings on the Likely Price Effects of Imports....................................................163  
(c) The ITC’s Findings on the Likely Impact of Imports.............................................................165  
I. THE ITC  SUNSET DETERMINATION ON OCTG  FROM ARGENTINA IS NOT 
INCONSISTENT WITH ARTICLE 3.4 OF THE AD A GREEMENT ..................................................165  
J. THE ITC  SUNSET DETERMINATION ON OCTG  FROM ARGENTINA IS NOT 
INCONSISTENT WITH ARTICLE 3.5 OF THE AD AGREEMENT ...................................................166  
K. THE TIME FRAME IN WHICH INJURY WOULD BE LIKELY TO RECUR .........................................168  
1. The US Statutory Provisions as to the time frame in which injury would be likely 
to recur are not inconsistent with Articles 11 .3 and 3 of the AD Agreement ..................168  
2. The ITC’s application of the Statutory Pr ovisions as to the time frame in which 
injury would be likely to recur was not inconsistent with Articles 11.3 and 3 of 
the AD Agreement............................................................................................................... ..169  
L. THE ITC  DID NOT ACT INCONSISTENTLY WITH ANY PROVISION OF THE AD 
AGREEMENT BY CONDUCTING A CUMULATIVE ANALYSIS IN THE OCTG  SUNSET 
REVIEW ............................................................................................................................... ....169  
1. The AD Agreement does not prohibit cumulation in sunset reviews ...............................169  
2. The ITC did not act inconsistently with Article 3.3 of the AD Agreement because 
Article 3.3 does not apply to sunset reviews .......................................................................170  
M. NONE OF THE “MEASURES ” IDENTIFIED BY ARGENTINA ARE INCONSISTENT WITH 
ARTICLE  VI OF THE GATT  1994,  ARTICLES 1 OR 18 OF THE AD AGREEMENT , OR 
ARTICLE XVI:4  OF THE WTO  AGREEMENT ............................................................................172  
VII. CONCLUSION ..................................................................................................................... 174 
 
  WT/DS268/R 
 Page A-91 
 
 
 I. INTRODUCTION 
1. A centrepiece of the first submission of Arge ntina in this dispute is Argentina’s purported 
study of the sunset review practice of the US Department of Commerce (“Commerce”), in which 
Argentina claims to have exhaustively researched  all of Commerce’s sunset review determinations 
and proven empirically that Commerce  maintains an “irrefutable pres umption” that a continuation or 
recurrence of dumping is likely, thereby generating an  injustice in 100 per cent  of the 217 cases that 
Argentina considered relevant.1 
 
2. As the United States will demonstrate, when on e takes a closer look at this “study,” what one 
really finds is that in 87 per cent of the 291 s unset reviews considered by Argentina – 252 reviews – 
the issue of likelihood of dumping was not contested by one side or the other.  So why does Argentina 
make the egregiously erroneous claim that 217 Co mmerce sunset reviews were decided improperly? 
 
3. The United States suspects that the answer relates to the fact that Argentina has a very weak 
case.  With respect to its claims concerni ng inconsistencies with Article 11.3 of the Agreement on 
Implementation of Article VI of the Ge neral Agreement on Tariffs and Trade 1994  (“AD 
Agreement”), Argentina is handicapped by the fact that:  (1) Article 11.3 is the only provision of the 
AD Agreement that sets forth the substantive requi rements for determining whether an order should 
be revoked five years after its impos ition; and (2) the terms of Article 11.3 are very limited.  It is hard 
to establish an inconsistency with an obligation when the obligation does not exist.  However, the 
bulk of Argentina’s case involves an attempt to do precisely that.  4. With respect to the factual issues concerning the specific determinations by Commerce and 
the US International Trade Commission (“ITC”) in their sunset reviews of oil country tubular goods 
(“OCTG”) from Argentina, Argentina’s situation is no better.  As will be se en, these determinations 
are supported by the evidence of record, and Argentina’s attempts to impugn these determinations 
border on the frivolous.  For example, Argentina complains that Commerce denied an Argentine 
producer/exporter its rights under Articles 6.1 and 6.2 of the AD Agreement to submit information 
and argument in the sunset review on OCTG.  Yet, as the United States will demonstrate, the record 
clearly shows that the company in question declined to take advantage of the ample opportunities 
provided under US law to submit such material, and instead chose to limit itself to a mere 4-page, 
double-spaced submission.  5. These are but a few examples, but they are representative of the emptiness of Argentina’s 
claims.  Because facts like these pose problems for Argentina, it needs something like its study to 
distract from the real issues in this case, and from the fact that the United States has not acted 
inconsistently with any of its oblig ations under the AD Agreement, the Marrakesh Agreement 
Establishing the World Trade Organization (“WTO Agreement”), or the General Agreement on 
Tariffs and Trade 1994  (“GATT 1994"). 
 
6. In terms of the structure of this submission, in Section II, the United States discusses the 
procedural background of this case, particularly as it relates to various claims by Argentina that are 
not within the Panel’s terms of reference.  In Se ction III, the United States  sets forth the factual 
background to this dispute, describing the US  system of sunset reviews and the particular 
determinations made in OCTG from Argentina.  In Section IV, the United States sets forth its request 
that the Panel make preliminary rulings that various claims by Argentina are not within the Panel’s 
terms of reference.  Finally, in Section V, the Un ited States responds to the substantive arguments 
made by Argentina in its First Submission. 
                                                     
 
1  The “study” in question is contained in Exhibit ARG-63. WT/DS268/R 
Page A-92  
 
 II. PROCEDURAL BACKGROUND 
7. Although Commerce published its continuation of the anti-dumping duty order on OCTG 
from Argentina on 25 July 2001, Argentina did not request consultations with the United States until 
7 October 2002.
2  A first round of consultations took place in Geneva on 14 November 2002, and a 
second round of consultations took place in  Washington, D.C., on 17 December 2002. 
 
8. On 3 April 2003, Argentina requested the establishment of a panel.3  Upon receipt of the 
request, the United States immediately identified th ree categories of defects in the request.  In 
Section IV, below, the United States  is requesting preliminary rulings  with respect to two of these 
defects.4 
 
9. The first category of defects has to do with Argentina’s failure to include in its panel request 
“a brief summary of the legal basi s of the complaint sufficient to present the problem clearly” with 
respect to a broad range of legislative and regul atory materials that Argentina purports to be 
challenging.  In order to fully appreciate the nature  and degree of Argentina’s failure, it is necessary to 
describe the structure of the panel request in some detail.  
10. The panel request begins with several descri ptive paragraphs chronicling the determinations 
made by US authorities and the consultations between the parties.  This introductory material is then 
followed by two sections – A and B – which in turn contain several numbered paragraphs.  These 
numbered paragraphs collectively appear to descri be the measures Argentina is challenging and the 
claims made with respect to these measures.
5 
 
11. Section A deals with the “dumping” side of a sunset review.  Section A.1 contains an “as 
such” complaint about 19 USC. § 1675(c)(4) – a US statutory provision dealing with sunset reviews – 
and 19 C.F.R. § 351.218(e) – a provision of the Commerce regulations dealing with sunset reviews.  
Sections A.2-A.5 contain “as applied” complaints about various aspects of the determination made, 
and the procedures applied, by Commerce in its sunset review of the anti-dumping duty order on OCTG from Argentina. 
 
12. Section B of the panel request deals with the “injury” side of a sunset review.  Section B.3 
contains an “as such” complaint about 19 USC. §§ 1675a(a)(1) and 1675a(a)(5), both of which are US statutory provisions dealing with sunset reviews.   Sections B.1-B.2 and B.4 contain “as applied” 
complaints about various aspects of the determinatio n made by the ITC in its sunset review of the 
anti-dumping duty order on OCTG from Argentina. 
 
                                                     
 
2  WT/DS268/1 (10 October 2002). 
3  WT/DS268/2 (4 April 2003). 
4  The third category of defects relates to the fact that Argentina’s panel request purported to challenge 
several items that do not constitute “measures.”  As explained by the United States at the meeting of the Dispute Settlement Body (“DSB”) on 15 April 2003, these items were:  (1) the Statement of Administrative Action – or 
“SAA” – accompanying the Uruguay Round Agreements Act; (2) Commerce’s Sunset Policy Bulletin ; and (3) 
what Argentina characterized as Commerce’s “Determination to Expedite.”  See WT/DSB/M/147 (1 July 2003), 
para. 33 (copy attached as Exhibit US-1).  To the extent that Argentina, in its first submission, persists in 
treating these items as “measures,” the United States has dealt with this defect as a substantive issue rather than 
as a subject of its request for preliminary rulings. 
5  As discussed below, Argentina subsequently did confirm before the DSB that its claims were 
contained in Sections A and B of the panel request.  With one exception, the United States is not requesting 
preliminary rulings on the consistency of Sections A and B with Article 6.2 of the DSU.  WT/DS268/R 
 Page A-93 
 
 
 13. On page 4 of the panel request, however, Sec tions A and B are followed by the following two 
paragraphs:6  
 
Argentina also  considers that certain aspects  of the following US laws, regulations, 
policies, and procedures related to the de terminations of the Department and the 
Commission are inconsistent with US WTO obligations, to the extent that any of 
these measures mandate action by the Depart ment or Commission that is inconsistent 
with US WTO obligations or preclude the Department or Commission from 
complying with US WTO obligations: 
- Sections 751(c) and 752 of the Tariff Act of 1930, as amended, 
codified at Title 19 of the United States Code §§ 1675(c) and 1675a; 
and the US Statement of Administrative Action (regarding the 
Agreement on Implementation of GATT Article VI) accompanying 
the Uruguay Round Agreements Act (the SAA), H.R. Doc. No. 103-
316, vol. 1; 
- The Department's Policies Regarding the Conduct of Five-year 
("Sunset") Reviews of Anti-Dumping and Countervailing Duty 
Orders ; Policy Bulletin, 63 Federal Regi ster 18871 (16 April 1998) 
(Sunset Policy Bulletin ); 
- The Department's sunset review regulations, codified at Title 19 of 
the United States Code of Federal Regulations § 351.218; and the 
Commission's sunset review regulat ions, codified at Title 19 of the 
United States Code of Federal Regulations §§ 207.60-69 (Subpart F). 
Argentina considers that the Department's Determination to Expedite, the 
Department's Sunset Determination, the Commission's Sunset Determination, the 
Department's Determination to Continue th e Order and the above mentioned US laws, 
regulations, policies and procedures are inc onsistent with the following provisions of 
the Anti-Dumping Agreement, the GATT 1994, and the WTO Agreement: 
- Articles 1, 2, 3, 6, 11, 12, 18 and Annex II of the Anti-Dumping 
Agreement; 
- Articles VI and X of the General Agreement on Tariffs and Trade 
(GATT) 1994; and 
- Article XVI:4 of the WTO Agreement. 
 (Underscoring added). 
 
14. In the first sentence of the first quoted paragr aph on page 4, Argentina uses the word “also.”  
This suggests that the WTO inconsistencies alluded to on page 4 are in addition to, and different from, 
the claims set forth in Sections A and B. 
 
15. Argentina then proceeds to assert in the first sentence that “certain aspects” of the 
subsequently named laws, regulations, etc., are inconsistent with US WTO obligations “as such,” 
because they either mandate WTO- inconsistent behaviour or preclude WTO-consistent behaviour.  
                                                      
6  For ease of reference, the United States hereafter will refer to the quoted paragraphs as “Page 4" of 
the panel request, notwithstanding that portions of other paragraphs are included on page 4. WT/DS268/R 
Page A-94  
 
 However, Argentina provides absolutely no explana tion as to how any aspect (or aspects) of these 
items is WTO-inconsistent.  Instead, it simply lists the items, notwithstanding the fact that each of the 
items is voluminous and contains multiple requiremen ts or statements.  Then, on the next paragraph 
on page 4, Argentina simply lists entire articles from the AD Agreement, the GATT 1994, and the 
WTO Agreement.  Unfortunately for anyone trying to discern the nature of Argentina’s problems, 
almost all of these WTO provisions consist of multiple paragraphs and contain multiple obligations.  
Argentina then merely asserts that all of the “measures” it has identified up to that point are 
inconsistent with the cited articles. 
 
16. Argentina makes no effort to link a particular article to a particular alleged measure, or to 
otherwise describe the legal basis of the complaint in order to describe the problem.  There is no explanation of the facts and circumstances descri bing the substance of the dispute accompanying 
these citations to entire articles.  As a result, it is impossible to discern precisely what Argentina 
purports to be complaining about on page 4. 
 
17. A second set of defects appears in Sections B. 1, B.2, and B.3 of Argentina’s panel request, 
which deal with the sunset review determination of  the ITC.  In Sections B.1 and B.2, Argentina 
alleges an inconsistency with Article 6 of the AD Agre ement in its entirety.  In section B.3, Argentina 
alleges an inconsistency with Artic le 3 of the AD Agreement in its entirety.  Both Articles 3 and 6, 
however, consist of multiple paragraphs and contain multiple obligations, and it seems implausible 
that Argentina is alleging that th e ITC’s determination or the relevant provisions of the US statute are 
inconsistent with each one of those obligations.
7  Significantly, elsewhere in the request, Argentina 
was able to identify with precision the particular paragraphs of Articles 3 and 6 with which the US 
measures allegedly were inconsistent. 
 
18. Because of the above-noted defects, Argent ina’s panel request failed to “provide a brief 
summary of the legal basis of the complaint sufficient  to present the problem clearly,” as required by 
Article 6.2 of the DSU.  At the meeting of the DSB on 15 April 2003, the United States noted these 
defects, and suggested that Argentina withdraw its panel request and submit a new request that 
complied with Article 6.2 of the DSU.8 
 
19. Instead of correcting the defects in its pane l request, Argentina attempted to explain them 
away by means of a statement it made at the DSB meeting of 19 May 2003.9  In the case of the first 
defect – the ambiguity concerning Argentina’s “as su ch” challenge on page 4 of the panel request – 
Argentina stated as follows:  “It was Argentina’s in tention (as the panel request clearly provided) to 
set forth the particular claims in the paragraphs  contained in Sections A and B of the document.”10  
 
20. Unfortunately, this attempt at clarification by Argentina did not necessarily eliminate the 
confusion concerning page 4 of the panel request.  For example, on page 4, Argentina refers to the 
ITC’s sunset regulations and asserts that “certain as pects” of these regulations are WTO-inconsistent.  
However, nowhere in any of the paragraphs cont ained in Sections A or B – the true location, 
according to Argentina, of its claims – is there any reference to the ITC’s regulations.  If, as Argentina 
asserted before the DSB, its claims are only contai ned in Sections A and B, does this mean that 
Argentina is not making any claims regarding the ITC’s regulations?  Or, if Argentina is making a 
claim regarding these regulations, what is the nature  of that claim and where is it described in the 
panel request?  Put differently, if Argentina has a problem with the ITC’s regulations, what is that 
problem and why is that problem not presented clearly in the panel request? 
                                                      
7  Indeed, as will be discussed below, in the relevant portions of its first submission, Argentina does not 
assert inconsistencies with Article 3 in its entirety, and does not assert any inconsistencies with Article 6. 
8  WT/DSB/M/147 (1 July 2003), paras. 30-33 (copy attached as Exhibit US-1). 
9  WT/DSB/M/150 (22 July 2003) (copy attached as Exhibit US-2). 
10  Id., para. 32.  WT/DS268/R 
 Page A-95 
 
 
  
21. With respect to the second defect, Argentina did not attempt to argue that it was possible to 
discern from the panel request the nature of Argentina’s problem.  Instead, it argued that a US panel 
request in an earlier dispute allegedly shared the same shortcomings as Argentina’s request.11  In 
addition, it argued that the questions presented by Argentina to the United States during the 
consultations somehow should have informed the Unit ed States of the nature of the claims embodied 
in Argentina’s general references to Articles 3 and 6 of the AD Agreement. 
 
22. Because Argentina refused to correct the defi ciencies in its panel request, the DSB had no 
choice under the negative consensus rule but to establish a panel on the basis of that request at its 
19 May meeting.12 
 
23. Argentina’s First Submission, submitted on 15 October 2003, added to the list of Argentina’s 
procedural errors by raising matters that were not included in its panel request.  These matters are as 
follows: 
 
− The claim in Section VII.B.1 of Argentina’s first submission that Commerce’s sunset review 
practice, both as such and as applied, is incons istent with Article 11.3 of the AD Agreement. 
 
− The claim in Section VII.B.2 of  Argentina’s first submission that, taken together, the US 
sunset statutory provisions, the SAA, and the Sunset Policy Bulletin  are, as such, inconsistent 
with Article 11.3 of the AD Agreement. 
 
− The claim in Section VII.E of Argentina’s first submission that Commerce sunset reviews 
collectively – not the sunset review on OCTG fr om Argentina – are inconsistent with Article 
X:3(a) of GATT 1994. 
 
− The claim in Section VIII.C.2 of Argentina’s fi rst submission that the ITC’s application of 
19 USC. §§ 1675a(a)(1) and (5) in the sunset review of OCTG from Argentina was 
inconsistent with Articles 11.3 and 3 of the AD Agreement. 
 
− The claim in Section IX of Argentina’s first submission that the US measures identified by 
Argentina are inconsistent with Article VI of the GATT 1994, Articles 1 and 18 of the 
AD Agreement, and Article XVI:4 of the WTO Agreement. 
 III. FACTUAL BACKGROUND 
24. Some of Argentina’s claims purport to relate to the US sunset review system, as such, while 
other claims relate to determinations made by Co mmerce and the ITC in the sunset review on OCTG 
from Argentina.  Other claims appear to relate to th e US sunset review system as applied generally.  
In order to facilitate the Panel’s un derstanding of the issues raised, th e United States first will provide 
an overview of how the United States conducts sunset reviews, followed by a discussion of the 
specific sunset review determina tion involving OCTG from Argentina. 
                                                     
 
11  Id., para. 33. 
12  Id., para. 38. WT/DS268/R 
Page A-96  
 
 A. S
UNSET REVIEWS UNDER US LAW  
1. The Statute13 
25. In 1995, the United States amended its anti-d umping duty statute to include provisions for the 
conduct of five-year, or so-called “sunset,” reviews of anti-dumping duty measures, including anti-
dumping duty orders.14  Commerce and the ITC each conduct sunset reviews pursuant to 
sections 751(c) and 752 of the Act.15  Commerce has the responsibility for determining whether 
revocation of an anti-dumping duty order would be likely to lead to continuation or recurrence of 
dumping.16  The ITC conducts a review to determine whether revocation of an anti-dumping duty 
order would be likely to lead to continua tion or recurrence of material injury.  
 
26. Under section 751(d)(2) of the Act, an anti-dumping duty order must be revoked after five 
years unless Commerce and the ITC make affirmative determinations that dumping and injury would 
be likely to continue or recur.17 
 
(a) Statutory Provisions Related to Commerce’s Determination 
27. Under the statute, Commerce automatically initiates a sunset review on its own initiative 
within five years of the date of publication of an anti-dumping duty order.18  Thereafter, a review can 
follow one of three basic paths. 
 
28. First, if no domestic interested party resp onds to the notice of initiation, Commerce will 
revoke the order within 90 days after the initiation of the review.19   
 
                                                      
13  This section provides a general overview of the US statutory provisions relating to sunset reviews.  
To be clear, however, the only provisions of the US statute that Argentina is challenging “as such” and that are 
within the Panel’s terms of reference are sections 751(c)(4), 752(a)(1), and 752(a)(5) of the Tariff Act of 1930, 
as amended. 
14  The US anti-dumping duty and countervailing duty statute is found in title VII of the Tariff Act of 
1930, as amended (“the Act”), 19 USC. 1671 et seq .  Title II of the Uruguay Round Agreements Act (“URAA”), 
Pub. L. No. 103-465, 108 Stat. 4809 (1994), amended title VII in order to bring it into conformity with US WTO obligations.  Concurrent with the passage of the URAA, Congress approved a “Statement of 
Administrative Action” (or “SAA”).  H.R. Doc. No. 316, 103d Cong., 2d Sess., Vol. 1 (1994).  The United 
States has attached as Exhibit US-11, the portions of the SAA dealing specifically with sunset reviews.  The 
SAA itself is not a statute or law, but instead is legislative history, albeit legislative history that provides authoritative interpretative guidance in respect of the statute to which it relates.  See United States - Measures 
Treating Export Restraints as Subsidies , WT/DS194/R, Report of the Panel, adopted 23 August 2001, paras. 
8.99-100 (discussing the status in US law of the SAA) [hereinafter “ Export Restraints ”].  As demonstrated 
below, the SAA itself is not within the terms of reference of this Panel, but could properly be considered by the 
Panel for purposes of interpreting, as a matter of fact, the meaning of those statutory provisions that Argentina is 
challenging “as such” and that are within the Panel’s terms of reference; i.e., sections 751(c)(4), 752(a)(1), and 
752(a)(5) of the Act. 
The United States also notes that the term “anti-dumping duty order” is the US law equivalent of the 
term “definitive duty” in the AD Agreement. 
15  Sections 751(c) and 752 of the Act (Exhibit ARG-1). 
16  Under the US anti-dumping duty law, the term “revocation” is equivalent to the concept of 
“termination” and “expiry of the duty” as used in Article 11.3 of the AD Agreement. 
17  Section 751(d)(2) of the Act (Exhibit ARG-1). 
18  Sections 751(c)(1) and (2) of the Act (Exhibit ARG-1); see also  19 C.F.R. 351.218(c)(1) (Exhibit 
ARG-1).  
19  Section 751(c)(3)(A) of the Act (Exhibit ARG-1).  The term “domestic interested parties” is a 
shorthand expression for the interested parties defined in section 771(9)(C)-(G) of the Act.  These are the types 
of interested parties who are eligible to file a petition for the imposition of anti-dumping duties.  WT/DS268/R 
 Page A-97 
 
 
 29. Second, if the responses to the notice of in itiation are “inadequate,” Commerce will conduct 
an expedited sunset review and issue its final dete rmination within 120 days after the initiation of the 
review.20   
 
30. Third, if the responses to the notice of in itiation are adequate, Commerce will conduct a full 
sunset review and issue its final determination wi thin 240 days after the initiation of the review.21  
Commerce normally will consider th e response to the notice of initiatio n to be adequate if it receives 
complete responses from a domestic interested part y and respondent interested parties accounting on 
average for more than 50 per cent of the total exports of subject merchandise.22 
 31. In both expedited and full sunset reviews, re spondent interested par ties may elect to waive 
participation in the sunset review  conducted by Commerce, without pr ejudice to their  participation in 
the sunset review conducted by the ITC.
23  The purpose of this procedure is to avoid forcing 
respondent interested parties to in cur the time and expense of partic ipating in the Commerce side of a 
sunset review when they wish only to contest the likelihood of continuation or  recurrence of injury on 
the ITC side.  
32. As mentioned above, Commerce has the respons ibility of determining whether revocation of 
an anti-dumping duty order would be likely to lead  to continuation or recurrence of dumping.  If 
Commerce’s determination is negative – i.e., if Commerce finds that there is no such likelihood – 
Commerce must revoke the order.
24  If Commerce’s determination is affirmative, however, 
Commerce transmits its determination to the ITC, along with a determination regarding the magnitude 
of the margin of dumping that is likely to prevail if the order is revoked.25 
 
(b) Statutory Provisions Related to the ITC’s Determination  
33. Section 751(c) of the Act requires the ITC to conduct a review no later than five years after 
issuance of an order or the suspension of an inves tigation, or a prior review , and to determine whether 
revocation of the order or termination of the su spended investigation would likely lead to the 
continuation or recurrence of  material injury.26  Section 752(a)(1) of the Act specifically addresses 
the ITC’s determination in a section 751(c) review .  This provision states that “the ITC shall 
determine whether revocation of an order, or term ination of a suspended investigation, would be 
likely to lead to continuation or recurrence of mate rial injury within a reasonably foreseeable time.”27  
More generally, section 752(a) of the Act specifie s several factors for the ITC’s consideration in 
making determinations in five-year  reviews, including the likely volume, likely price effects and 
likely impact of subject imports on the domestic industry if the anti-dumping duty order is revoked. 
 
34. Section 752(a)(7) grants the ITC discretion to en gage in a cumulative analysis if:  (1) reviews 
are initiated on the same day; and (2) imports would be likely to compete with one another and with 
the domestic like product in the United States mark et.  It further provides that the ITC shall not 
cumulate imports from a country if those imports are likely to have no discernible adverse impact.  
                                                      
20  Section 751(c)(3)(B) of the Act (Exhibit ARG-1). 
21  Section 751(c)(5)(A) of the Act (Exhibit ARG-1). 
22  19 C.F.R. 351.218(e)(1) (Exhibit ARG-3).  The term  “respondent interested parties” is a shorthand 
expression for the interested parties defined in section 771(9)(A)-(B) of the Act.  These parties typically consist 
of foreign manufacturers, producers or exporters, or the US importer of subject merchandise, or an association 
of such persons. 
23  Section 751(c)(4)(A) of the Act (Exhibit ARG-1). 
24  Section 751(d)(2) of the Act (Exhibit ARG-1). 
25  Section 752(c) of the Act (Exhibit ARG-1). 
26  Section 751(c) (Exhibit ARG-1). 
27  Section 752(a)(1) (Exhibit ARG-1). WT/DS268/R 
Page A-98  
 
 2. The Regulations 
(a) Commerce Regulations  
35. In 1997, following the enactment of the URAA, Commerce revised its anti-dumping and 
countervailing duty regulations so as to bring them into conformity with the amended statute.
28 These 
revised regulations contained substantive provisions  with respect to anti-dumping proceedings, as 
well as procedural provisions applicable to both anti-dumping and countervailing duty proceedings.  These regulations, however, contained minimal guidanc e with respect to sunset reviews, essentially 
setting forth only the time frame for initiation and completion of such reviews. 
 
36. In 1998, in anticipation of the over 300 pre -URAA orders (referred to as “transition orders”)
29 
eligible for revocation by 1 January 2000, Commer ce issued additional regulations addressing in 
greater detail the procedures for participation in, and conduct of, sunset reviews.30 These Sunset 
Regulations created a framework both to implement statutory requirements and to provide a clear, 
transparent process.  Inter alia , they specified the information to be  provided by parties participating 
in a sunset review31 and the deadlines for required submissions.32 
 37. The Sunset Regulations describe specifically th e information required to be provided by all 
interested parties in a sunset review.
33  In addition, the regulations in vite parties to submit, with the 
required information, “any other relevant info rmation or argument that the party would like 
[Commerce] to consider.”34  These regulations constitute the standard request for information in 
sunset reviews and function as the standard questionnaire.  
38. With respect to deadlines for required submissions, the Sunset Regulations provide that  
substantive responses to a notice of initiation are due 30 days after the date of  publication in the 
Federal Register  of the notice of initiation.
35  Rebuttals to substantive responses are due five days 
after the date the substantive response is filed.36  The regulations also state that Commerce normally 
will not accept or consider any additional informatio n from a party after the time for filing rebuttals 
has expired.37 
 
39. Commerce’s regulations also provide for “expedited” sunset review procedures where the 
domestic interest parties choose not to participate, or where substantive responses received from 
respondent interested parties are inadequate for Commerce’s use in a full sunset proceeding.38  Where 
domestic interested parties choose  not to participate, the regula tions provide that Commerce will 
make a negative likelihood determ ination and revoke the order.39  Where the foreign interested parties 
                                                      
28  Where, as in the case of the US anti-dumping duty law, Congress entrusts an administrative agency 
with the administration of a statute, it is common for the agency to promulgate regulations that elaborate on, or clarify, the statute.  While regulations are subordinate to the statute, they typically have the force of law if 
validly promulgated and consistent with the statute. 
29  Section 751(c)(6)(C) of the Act (Exhibit ARG-1). 
30  Procedures for Conducting Five-Year (“Sunset”) Reviews of Anti-Dumping and Countervailing 
Duty Orders  (“Sunset Regulations”), 63 FR 13516 (20 March 1998) (codified at 19 C.F.R. part 351) (Exhibit 
US-3). 
31  19 C.F.R. 351.218(d)(3) (Exhibit ARG-3). 
32  19 C.F.R. 351.218(d)(3)-(4 ) (Exhibit ARG-3). 
33  19 C.F.R. 351.218(d)(1)-(4 ) (Exhibit ARG-3). 
34  19 C.F.R. 351.218(d)(3)(iv)(B) (Exhibit ARG-3). 
35  19 C.F.R. 351.218(d)(3)(i) (Exhibit ARG-3). 
36  19 C.F.R. 351.218(d)(4) (Exhibit ARG-3). 
37  19 C.F.R. 351.218(d)(4) (Exhibit ARG-3). 
38  19 C.F.R. 351.218(d)(2) (Exhibit ARG-3). 
39  19 C.F.R. 351.218(d)(1)(iii) (Exhibit ARG-3).  WT/DS268/R 
 Page A-99 
 
 
 fail to provide adequate resp onses, the regulations provide that Commerce will examine the 
information on the record of the sunset review proceeding and normally will base its likelihood 
determination on the basis of facts available prior to  the determination to expedite the review – the 
dumping margins from the original investigation and any administrative reviews, as well as any 
information supplied by the interested parties.40 
 
40. The purpose of the “expedited” procedures is to provide all interested  parties the option of 
concentrating their efforts on the ITC’s injury proceeding, should they believe that such an approach 
would be in their best interests.  Respondent interest ed parties may opt to file a formal waiver of their 
right to participate in the proceeding or, alternatively, they simply may choose not to respond to the notice of initiation.  In addition, Commerce’s regu lations also provide the opportunity for interested 
parties to comment on the adequ acy of the substantive and rebuttal responses and to address the 
appropriateness of conducting an  expedited sunset review.
41   
 
(b) ITC Regulations  
41. The ITC has its own set of regulations pertaining to sunset reviews, which are set forth at 
19 C.F.R. 207.60-69.42  With respect to institution of a suns et review, under its regulations, the ITC 
initially determines whether to conduct a full review (which would generally include a public hearing, 
the issuance of questionnaires, and other procedures) or an expedited review.  First, the ITC 
determines whether individual responses to the noti ce of institution are ade quate.  Second, based on 
those responses deemed individually adequate, the ITC determines whether the collective responses submitted by two groups of interested parties – dome stic interested parties (producers, unions, trade 
associations, or worker groups), and respondent interested parties (importers, exporters, foreign 
producers, trade associations, or country governments) – demonstrate a sufficient willingness among 
each group to participate and provide information requested in a full review.
43  In its sunset review on 
OCTG, the ITC conducted a full review. 
 
42. As demonstrated below in connection with th e United States’ request for preliminary rulings, 
even though Argentina refers to them cryptically in its panel request, the ITC regulations are not 
within the Panel’s terms of reference, and Argentina does not advance any claims concerning them in 
its First Submission. 
 3. Commerce’s Sunset Policy Bulletin
44 
43. In April 1998, Commerce issued a po licy bulletin related to sunset reviews.45  Commerce 
issued the policy bulletin to appris e interested parties of its antici pated methodologies and to assist 
Commerce staff in their conduct of sunset reviews.  As described in the Bulletin, Commerce normally 
will determine that revocation of an anti-dumping or der is likely to lead to continuation or recurrence 
of dumping where (1) dumping continued at any level above de minimis  after the issuance of the 
                                                      
40  19 C.F.R. 351.308(f) (Exhibit US-3). 
41  19 C.F.R. 351.309(e) (Exhibit US-3). 
42  A copy of the ITC’s sunset review regulations is attached as Exhibit US-4. 
43  19 C.F.R. 207.62(a) (Exhibit US-4). 
44  The United States would like to make it clear that the following discussion of the Sunset Policy 
Bulletin  is designed merely to provide the Panel with a complete picture of the US sunset review process.  As 
demonstrated below, the Bulletin is not within the Panel’s terms of reference, is not a “measure,” and, even if it were considered a measure, is not a mandatory m easure and, thus, cannot be challenged “as such.” 
45 Policies Regarding the Conduct of Five-Year (“Sunset”) Reviews of Anti-Dumping and 
Countervailing Duty Orders; Policy Bulletin (“ Sunset Policy Bulletin ”), 63 FR 18871 (16 April 1998) (Exhibit 
ARG-35).  Commerce and other administrative agencies will sometimes issue informal documents such as 
policy bulletins when they wish to provide guidance to the public and agency staff, but are not yet in a position 
to make such guidance binding and mandatory by promulgating regulations. WT/DS268/R 
Page A-100  
 
 order; (2) imports of the subject merchandise ceased after issuance of the order; or (3) dumping was 
eliminated after the issuance of the order and im port volumes for the subject merchandise declined 
significantly. 
 
44. The Bulletin also provides guidance as to how to determine the magnitude of the dumping 
margin that would be likely to prevail if the anti- dumping order were revoked.  Commerce normally 
will select the margins from the investigation, becaus e these margins are the only calculated rates that 
reflect the behaviour of exporters without the discipline of an order in place.
46  Commerce may select 
a more recently calculated margin for a particul ar company if dumping margins declined or if 
dumping was eliminated after the issuance of the order and import volumes remained steady or increased.
47 
 
45. The Sunset Policy Bulletin  provides a sketch of what Commerce, given particular factual 
scenarios, will “normally” do.  It is not binding on either Commerce or private parties, but instead 
describes how Commerce anticipated acting on a regular, standard or ordinary basis.  The Sunset 
Policy Bulletin  does not suggest that Commerce will always  find a likelihood of continuation or 
recurrence given the factual scenarios above. 
 
B. CERTAIN OCTG  FROM ARGENTINA  
1. The Anti-Dumping Duty Investigation Order 
46. On 28 June 1995, Commerce published its fi nal affirmative anti-dumping duty determination 
on OCTG from Argentina.48  In its final determination, Commerce found that the Argentine producer 
of OCTG that it had investigated – Siderca S. A.I.C. (“Siderca”) –  was dumping the subject 
merchandise in the United States.  For Siderca, Commerce calculated a dumping margin of 
1.36 per cent based on Siderca’s sales to the United States during the period of investigation.  Also, 
based on Siderca’s dumping margin, Commerce calculated an “all others” duty rate applicable to OCTG from other Argentine sources of OCTG.
49 
 
47. On 10 August 1995, the ITC published notice of its final affirmative injury determination 
involving OCTG from Argentina.50  On 11 August 1995, Commerce issued an anti-dumping duty 
order on certain OCTG from Argentina.51 
 48. No administrative reviews of the anti-dumping duty order on certain OCTG from Argentina were requested or conducted prior to the sunset review. 
 2. The Sunset Review and Determination  
(a) Commerce’s Determination of Likelihood of Continuation or Recurrence of Dumping 
49. On 3 July 2000, Commerce published its notice of initiation of the sunset review of the anti-
dumping duty order on certain OCTG from Argentina.
52  In the notice, Commerce, as is its normal 
                                                      
46  Sunset Policy Bulletin , 63 FR at 18873 (Exhibit ARG-35). 
47  Id. 
48  Final Determination of Sales At Less Than Fair Value: Oil Country Tubular Goods from Argentina, 
60 Fed. Reg. 33539 (28 June 1995) (“Commerce Investigation Final”) (Exhibit ARG-26). 
49  Id. at 33550. 
50  60 Fed. Reg. 40855 (Exhibit US-5).  The full version of the ITC’s opinion was published as a 
separate document in USITC Pub. 2911 (August 1995). 
51  Anti-Dumping Duty Order: Certain Oil Country Tubular Goods From Argentina, 60 Fed. Reg. 41055 
(11 August 1995) (“Anti-Dumping Duty Order”) (Exhibit US-6).  WT/DS268/R 
 Page A-101 
 
 
 practice, highlighted the deadline for filing a s ubstantive response in the sunset review and the 
information that was required to be contained in the response.53  Commerce also explicitly referred 
parties to the applicable regulation concerning requests for an extension of filing deadlines.54 
 
50. On 2 August 2000, Siderca and domestic interested parties55 filed their substantive responses. 
 
51. In its substantive response, Siderca did not state that it would not export OCTG to the United 
States if the order were revoked, nor did it state th at it would not dump OCTG in the United States if 
the order were revoked.56  Instead, Siderca merely argued that the dumping margin from the original 
investigation was not large enough to support a determ ination that dumping was likely to continue or 
recur in the absence of the duty.  Specifically, Siderca argued that its 1.36 per cent dumping margin from the investigation wa s below the 2 per cent de minimis  standard of Article 5.8 of the AD 
Agreement, which Siderca assert ed applied to sunset reviews.
57  Siderca also stated that it believed 
that it was the only producer of OCTG in Argentina.58  It acknowledged that it did not export OCTG 
to the United States during the five-year period pre ceding the sunset review, but did not assert that 
there were no other exporters of OCTG  from Argentina to the United States.59  Siderca did not 
provide any additional evidence or argument for Commerce’s consideration on the likelihood issue in 
its substantive response.  In addition, Commerce did not receive any subs tantive responses from 
Argentine exporters of OCTG during the sunset review, nor did any other Argentine exporter supply 
information for inclusion in Siderca’s substantive response. 
 52. On 7 August 2000, Commerce received rebuttal comments on behalf of domestic interested 
parties in response to Siderca’s comments.  Sider ca did not submit a substantive rebuttal brief or any 
other factual information or legal argument in the sunset review. 
 
53. On 22 August 2000, Commerce determined to conduct an expedited sunset review because it 
had not received a complete substantive response from  exporters accounting for more than 50 per cent 
of Argentine exports to the United States during the relevant period.
60  Siderca did not comment on 
Commerce’s determination to expedite the sunset review, notwithstanding that it had a right to do so 
under Commerce’s regulations.61 
 
                                                                                                                                                                     
52  Initiation of Five-year (“Sunset”) Reviews of Anti-Dumping and Countervailing Duty Orders or 
Investigations of Oil Country Tubular Goods (“Sunset Initiation”), 65 FR 41053, 41054  (3 July 2000) (Exhibit ARG-44). 
53  Sunset Initiation .  The information requirements concerning substantive responses to notices of 
initiation of sunset reviews are set forth at 19 C.F.R. 351.218(d)(3) (Exhibit ARG-3).  
54  Sunset Initiation .  19 C.F.R. 351.302(c) provides that a party may request an extension of a specific 
time limit.  19 C.F.R. 351.302(b) provides that unless expressly precluded by statute, Commerce may, for good 
cause, extend any time limit established by its regulations.  The US anti-dumping duty statute does not contain deadlines for submission of information in a sunset review.  A copy of 19 C.F.R. 351.302 is attached as Exhibit 
US-7. 
55  The domestic interested parties consisted of Bethlehem Steel Corporation, IPSCO Tubulars, Inc., 
Lone Star Steel Company, Maverick Tube Corporation, Newport Steel and Koppel Steel Divisions of NS 
Group, Grant-Prideco, North Star Steel Ohio, a nd US Steel Group, a unit of USX Corporation. 
56  Exhibit ARG-57. 
57  Exhibit ARG-57, page 3. 
58  Id. 
59  Id., page 4. 
60  “Commerce Memorandum on Adequacy of Response to Notice of Initiation,” dated 22 August 2000 
(Exhibit ARG-50); see also  19 C.F.R. 351.218(e)(1)(ii)(A)-(B) (Exhibit ARG-3). 
61  19 C.F.R. 351.309(e) (Exhibit US-3). WT/DS268/R 
Page A-102  
 
 54. On 7 November 2000, Commerce published its final expedited sunset determination, finding 
that continuation or recurrence of dumping was likely.
62  Commerce found that dumping had 
continued over the life of  the order because there had been no administrative reviews and the  
dumping margin from the original  investigation was the only indicat or available to Commerce. Based 
on its findings that there was no decline in dumping margins and that the volume of imports had 
decreased after issuance of the order and remained  at below pre-order levels, Commerce determined 
that there was a likelihood of continuation or recurrence of dumping.63  
 
55. As required under US law, Commerce also repo rted to the ITC the magnitude of the margin 
of dumping likely to preva il if the order were revoked.64  In deciding the magnitude of the margin 
likely to prevail to report to the ITC, Commerce c onsidered the fact that import volumes had declined 
over the period preceding the sunset review.  Comme rce determined to report to the ITC the margins 
of 1.36 per cent calculated in the original investiga tion for Siderca and “all others,” because they were 
the only margins indicative of exporter behaviour without the discipline of an order in place.65 
 
(b) The ITC’s Determination of Likelihood of Continuation or Recurrence of Injury  
56. In its final determination in the original investigation, the ITC made separate injury 
determinations for the two types of OCTG (casing an d tubing and drill pipe), because it found these to 
be separate domestic like products.66  
 
57. On 3 June 2000, the ITC instituted sunset reviews,67 and on 25 October 2000, decided to 
conduct full reviews to determine whether revocatio n of the anti-dumping and countervailing orders 
on casing and tubing from Argentina, Italy, Japan, Korea, and Mexico, and on drill pipe from 
Argentina, Italy and Mexico would likely lead to continuation or recurrence  of material injury.68 
 
58. On 10 July 2001, the ITC published notice of its  final determination in the sunset review, and 
issued its full opinion in a separate publication.69  The ITC determined that revocation of the order on 
drill pipe from Japan was likely to lead to conti nuation of material injury within a reasonably 
foreseeable time, but that revocation of the orde rs on drill pipe from Mexico and Argentina was not 
likely to lead to continuation or recurrence of mate rial injury within a reasonably foreseeable time.  
As a result, the anti-dumping duty orders on drill pipe from Mexico and Ar gentina were revoked. 
 59. With respect to casing and tubing, the ITC dete rmined to evaluate the effects of subject casing 
and tubing imports from Mexico, Argentina, Italy, Japan and Korea on a cumulated basis.
70 
 
60. The ITC identified a number of conditions of competition as relevant to its sunset review, 
including (as most relevant to this dispute) that: 
 
− The United States is the largest OCTG market in the world.71 
                                                      
62 Final Results of Expedited Sunset Reviews: Oil Country Tubular Goods From Argentina, et al.  
(“Commerce Sunset Final ”), 65 FR 66701 (7 Nov. 2000) (Exhibit ARG-46), and accompanying Decision 
Memorandum (“Commerce Sunset Final Decision Memorandum”) (Exhibit ARG-51). 
63  Commerce Sunset Final Decision Memorandum , page 5 (Exhibit ARG-51)  
64  Id., pages 6-7; see also  section 752(c)(3) of the Act (Exhibit ARG-1). 
65  Commerce Sunset Final Decision Memorandum , page 7 (Exhibit ARG-51). 
66  See Exhibit US-5. 
67  See Exhibit ARG-45. 
68  65 Fed. Reg. 63889 (Exhibit US-8). 
69  The ITC’s notice was published at 66 Fed. Reg. 35997 (Exhibit US-9), and its full opinion was 
published as Oil Country Tubular Goods from Argentina, Italy, Japan, Korea, and Mexico , USITC Pub. 3434, 
Inv. Nos. 701-TA-364, 731-TA-711, and 713-716 (June 20 01) (Exhibit ARG-54) [hereinafter “ITC Report”]. 
70  ITC Report at 10-14.  WT/DS268/R 
 Page A-103 
 
 
  
− Based in part on rising oil and gas prices, which appeared to be driven by long-term factors, 
the ITC found demand for casing and tubing to be currently strong and to be projected to 
remain strong in the reasonably foreseeable  future.  The ITC noted, however, that the 
volatility of the forces affecting oil and gas su pply and demand globally made such forecasts 
difficult.72 
 
− Production facilities in subject countries and in the United States produced a variety of 
products in addition to OCTG.  The ITC found that producers could easily shift production 
away from other tubular products toward production of OCTG and vice versa.  The ITC also 
found that OCTG commanded among the highe st prices among tubular products, giving 
producers an incentive to make as much OCTG as possible in relation to other products.73 
 
− The ITC noted the consolidation of five forei gn producers of seamless casing and tubing (four 
of which were located in subject countries) in to the Tenaris Alliance.  Tenaris operated as a 
unit, submitting a single bid for OCTG contracts, and its customer base included large multi-
national oil and gas companies that had operations in the United States.74 
 61. Against that background, the ITC considered the evidence gathered in the reviews.  It noted that during the original period of investigation, subject imports of casing and tubing rose from 1992 to 
1994.  The ITC explained that after the orders went into effect subject imports decreased but remained 
a factor in the US market.  The ITC concluded that the current import volume and market share of 
subject imports were substantially below the levels of  the original investigation, but that this likely 
reflected the restraining effects of the orders.
75 
 
62. The ITC explained that the volume of subject imports would likely increase significantly if 
the orders were revoked.  Because it found that fo reign casing and tubing producers could shift with 
relative ease between production of casing and tubi ng and production of other pipe and tube products, 
the ITC considered foreign producers’ operations with respect to casing and tubing and with respect to 
all pipe and tube products produced on the same machinery and equipment as casing and tubing.76 
 
63. The ITC concluded that there was substantial available capacity in the subject countries for 
increasing exports of casing and tubing to the United States.  The ITC explained that producers had 
incentives to devote more of their productive ca pacity to producing and shipping more casing and 
tubing to the US market.  The ITC considered Tenaris’ assertion that its preference to sell directly to 
end-users would limit its participation in the US  market if the orders were revoked.  The ITC 
explained that Tenaris was the dominant supplier of OCTG products and related services to all of the 
world’s major oil and gas drilling regions, except the United States.  It noted that Tenaris sought 
worldwide contracts with oil and gas companies, and that many of Tenaris’ existing customers were 
global oil and gas companies with operations in the United States.  While the Tenaris companies 
sought to downplay the importance of the US market, they acknowledged that it was the largest 
market for seamless casing and tubing in the world.  Given Tenaris’ global focus, the ITC found “it 
likely would have a strong incentive to have a significant presence in the US market, including the 
supply of its global customers’ OCTG requirements in the US market.”77 
 
                                                                                                                                                                     
71  ITC Report at 15. 
72  ITC Report at 15. 
73  ITC Report at 16.  
74  ITC Report at 16. 
75  ITC Report at 17. 
76  ITC Report at 17. 
77  ITC Report at 18-19. WT/DS268/R 
Page A-104  
 
 64. The ITC explained a second incentive for producers of the subject merchandise to devote 
more capacity to producing casing and tubing for the US market.  Casing and tubing were among the 
highest valued pipe and tube products, generating among the highest profit margins.  Accordingly, 
producers generally had an incentive, where possibl e, to shift production in favor of these products 
from other pipe and tube products that were manufactured on the same production lines.
78 
 
65. A third incentive identified by the ITC was th at prices for casing and tubing on the world 
market were significantly lower than prices in th e United States.  The ITC considered respondents’ 
arguments that the domestic industry’s claims of price differences were exa ggerated, but it concluded 
that there was on average a difference sufficient to create an incentive for subject producers to seek to increase their sales of casing and tubing to the United States.
79 
 
66. The fourth incentive was that producers and exporters in the subject countries faced import 
barriers in other countries and on  other pipe products (produced in  the same facilities) in the United 
States.  Finally, the ITC found that industries in at least some of the subject countries depended on 
exports for the majority of their sales.  Japan and Korea, in particular, had very small home markets 
and depended nearly exclusively on exports.80 
 
67. On these bases, the ITC concluded that, in the absence of the orders, the likely volume of 
cumulated subject imports, both in absolute te rms and as a share of the US market, would be 
significant.81 
 68. In evaluating potential price effects, the ITC first reviewed the price effects findings it made 
in the original investigation, which reflected conditions  before the orders were imposed.   It found that 
the domestic and imported products  were generally substitutable and that price was one of the most 
important factors in purchasing decisions.  It conclude d that, despite mixed evidence as to instances of 
underselling and overselling, underselling  by subject imports was significant.
82 
 
69. The ITC also found in the original investigations that cumulated subject imports suppressed 
domestic prices to a significant degree, despite the unclear trend in domestic and import prices.  The 
ITC found that the significant volumes of casing and tubing available from the cumulated subject 
countries effectively prevented domestic producer s from raising prices, even though they were 
experiencing high manufacturing costs.  Because imported and domestic casing and tubing were 
relatively close substitutes, changes in relative pri ces were likely to cause purchasers to shift among 
supply sources.  As the ITC noted, purchasers repeatedly stated that subject imports exerted 
downward pressure on domestic prices.83 
 
70. Turning to the evidence gathered in the reviews,  the ITC found that the trend in prices of US-
made casing and tubing since 1995 had varied by pr oduct.  It noted that for most products domestic 
prices peaked in 1998, fell significantly in 1999, then rebounded in 2000.  The ITC also found that 
direct selling comparisons were limited, because the subject producers had a limited presence in the 
US market during the period of review.  Neverthele ss, it found that the few direct comparisons that 
could be made indicated that subj ect casing and tubing generally undersold the domestic like product, 
especially in 1999 and 2000.84 
 
                                                      
78  ITC Report at 19. 
79  ITC Report at 19-20. 
80  ITC Report at 20. 
81  ITC Report at 20. 
82  ITC Report at 20-21. 
83  ITC Report at 21. 
84  ITC Report at 21.  WT/DS268/R 
 Page A-105 
 
 
 71. The ITC also noted that subject imports were  highly substitutable for domestic casing and 
tubing, and that price was a very important factor in purchasing decisions.  Accordingly, the ITC 
found that the increases in subject import sales vo lume that were likely to occur would be achieved 
through lower prices.85 
 
72. The ITC found that in the absence of the orders, casing and tubing from Mexico, Argentina, 
Italy, Japan and Korea likely would compete on the ba sis of price in order to  gain additional market 
share.  The ITC concluded that “such price-based competition by subject imports likely would have 
significant depressing or suppressing effects on  the prices of the domestic like product.”86 
 73. The ITC reviewed its impact findings from the original investigation, which reflected conditions prior to the imposition of the orders.  Th e adverse impact of the cumulated subject imports 
in the original determinations was reflected in the poor operating performance of the domestic 
industry (despite a sharp increase in US consumption) and in the decline in market share.
87 
 
74. The ITC further found that the large volumes of cumulated subject imports, which purchasers generally viewed as good substitutes for the domest ic product, were inhibiting the domestic industry 
from increasing market share and from raising prices.  The ITC thus found in the original 
investigations that suppliers had to compete fo r market share and that the lowest price would 
generally prevail.  In addition, the ITC determin ed that the adverse imp act of cumulated subject 
imports was reflected in the inability of the domestic industry to raise prices sufficiently to cover costs between 1992 and 1994.
88 
 
75. With regard to the evidence gathered during  the reviews, the ITC noted that the current 
condition of the domestic industry was positive, that the industry had recovered after the orders were 
imposed, and that it appeared to have benefited from the discipline imposed by the orders.  The ITC 
also noted that the industry’s performance indicators rose and fell with the volatile swings in demand.  
It found that, on balance, the domestic industry’s condition had improved since the orders went into 
effect, as reflected in most indicators over the peri od reviewed, and it did not find the industry to be 
currently vulnerable.89 
 
76. The ITC further found, however, for the reas ons previously given, that revocation of the 
orders likely would lead to a significant increase in the volume of subject imports, which likely would 
undersell the domestic like product and significantl y depress or suppress the domestic industry's 
prices.  With regard to demand, the ITC noted that  in the original investigations, subject imports 
captured market share and caused price effects despite a significant increase in apparent consumption in 1993 and 1994 as compared to 1992.  In these reviews, it found that, despite strong demand 
conditions in the near term, a si gnificant increase in subject im ports would likely have negative 
effects on both the price and volume of the domes tic producers’ shipments.  The ITC found further 
that these developments likely would have a significant adverse impact on the production, shipments, 
sales, market share, and revenues of the domestic i ndustry.  As the ITC also found, this reduction in 
the domestic industry's production, shipments, sales,  market share, and revenues would result in the 
erosion of the domestic industry's profitability, as  well as its ability to raise capital and make and 
maintain necessary capital investments.
90 
 
                                                      
85  ITC Report at 21. 
86  ITC Report at 21. 
87  ITC Report at 20-21. 
88  ITC Report at 21-22. 
89  ITC Report at 22. 
90  ITC Report at 22. WT/DS268/R 
Page A-106  
 
 77. On this basis, the ITC determined that revo cation of the anti-dumping and countervailing duty 
orders on imports of casing and tubing from Mexi co, Argentina, Italy, Korea and Japan would be 
likely to lead to the continuation or recurrence of material injury to the domestic industry in the 
reasonably foreseeable future.
91 
 
(c) Notice of Continuation of the Order  
78. On 15 December 2000, the United States published notice of the continuation of the anti-
dumping duty order on certain oil country tubular goods from Argentina based on the determinations 
by Commerce and the ITC finding likelihood of continuation or recurrence of dumping and injury, 
respectively.92 
 
IV. REQUEST FOR PRELIMINARY RULINGS   
A. INTRODUCTION  
79. The Appellate Body has stated that:  “A de fending party is entitled to know what case it has 
to answer, and what violations have been allege d so that it can begin preparing its defence.”93  
According to the Appellate Body:  “This requirement of due process is fundamental to ensuring a fair 
and orderly conduct of dispute settlement proceedings.”94 
 
80. In this dispute, this fundamental due process requirement has been denied the United States 
for several reasons.  First, Argentina’s request for the establishment of a panel failed to comply with 
the requirements of Article 6.2 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes  (“DSU”).  Specifically, with respect to a major portion of Argentina’s panel 
request, Argentina failed to “provide a brief summary of the legal basis of the complaint sufficient to 
present the problem clearly.”  As a result, the United States could not discern from the panel request 
“what case it has to answer, and what violations  have been alleged,” and was unable to “begin 
preparing its defence.”  81. As explained earlier, there are essentially two categories of defects in Argentina’s panel 
request that made it impossible for the United States  to discern the nature of Argentina’s problems.  
The United States raised both of these defects before the DSB.  With respect to the defect concerning 
Sections B.1-B.3 of the panel request, Argentina simply refused to acknowledge that the defects 
existed.  The United States requests that the Panel find that the claims falling within this category are 
not within the Panel’s terms of reference due to Arge ntina’s failure to comply with Article 6.2 of the 
DSU. 
 82. In the case of the defects concerning page 4, Argentina did appear to acknowledge that there 
was a problem, and offered before the DSB an interp retation of its panel request, stating essentially 
that portions of its panel request should be disregarde d.  The United States, therefore, requests that the 
Panel accept Argentina’s proposed clarification at face value and find that the claims falling within 
this category are not within the Panel’s terms of reference due to Argentina’s failure to comply with 
Article 6.2 of the DSU. 
                                                     
 
91  ITC Report at 22-23. 
92  Continuation of Anti-Dumping and Countervailing Duty Orders on Oil Country Tubular Goods 
From Argentina, Italy, Japan, Korea, and Mexico, and Partial Revocation of Those Orders from Argentina and 
Mexico With Respect to Drill Pipe, 66 Fed. Reg. 38630 (25 July 2001) (Exhibit US-10).  
93  Thailand - Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel H-
Beams from Poland , WT/DS122/AB/R, Report of the Appellate Body adopted 5 April 2001, para. 88 (“ Thai 
Angles ”). 
94  Id.  WT/DS268/R 
 Page A-107 
 
 
  
83. An additional source of the denial of due process to which the United States is entitled is that 
in its First Submission, Argentina has raised matters that were not within the scope of that portion of 
its panel request that was in conf ormity with the requirements of Article 6.2.  The United States 
requests that the Panel find that these matter s are not within its terms of reference. 
 
B. BECAUSE PAGE 4 OF ARGENTINA ’S PANEL REQUEST FAILS TO CONFORM TO THE 
REQUIREMENTS OF ARTICLE 6.2 OF THE DSU,  THE PANEL SHOULD FIND THAT THE CLAIMS 
SET FORTH ON PAGE  4 ARE NOT WITHIN THE PANEL ’S TERMS OF REFERENCE  
84. Article 6.2 of the DSU provides , in pertinent part, as follows: 
 
The request for the establishment of a panel sh all . . . identify the specific measures at 
issue and provide a brief summary of the le gal basis of the complaint sufficient to 
present the problem clearly. 
The Appellate Body recently summarized these requirements as follows:95 
There are . . . two distinct require ments, namely identification of the specific 
measures at issue , and the provision of a brief summary of the  legal basis of the 
complaint (or the claims ).  Together, they comprise the "matter referred to the DSB", 
which forms the basis for a panel's terms of reference under Article 7.1 of the DSU.  
The requirements of precision in the requ est for the establishment of a panel flow 
from the two essential purposes of the term s of reference.  First, the terms of 
reference define the scope of the dispute.  Secondly, the terms of reference, and the 
request for the establishment of a pane l on which they are based, serve the due 
process  objective of notifying the parties an d third parties of the nature of a 
complainant's case.  When faced with an is sue relating to the scope of its terms of 
reference, a panel must scrutinize carefully  the request for establishment of a panel 
"to ensure its compliance with both the lette r and the spirit of Article 6.2 of the DSU." 
As we have said previously, compliance with  the requirements of Article 6.2 must be 
demonstrated on the face of the request for the establishment of a panel.  Defects in 
the request for the establishment of a panel cannot be "cured" in the subsequent 
submissions of the parties during the panel proceedings.  Nevertheless, in considering 
the sufficiency of a panel request, submissions and statements made during the course 
of the panel proceedings, in particular th e first written submission of the complaining 
party, may be consulted in order to conf irm the meaning of the words used in the 
panel request and as part of the assessment of whether the ability of the respondent to 
defend itself was prejudiced.  Moreover, compliance with th e requirements of Article 
6.2 must be determined on the merits of each case, having considered the panel request as a whole, and in the light of attendant circumstances. 
85. The Appellate Body also has provided the fo llowing guidance concerning the requirement for 
a summary:
96 
                                                      
95  United States - Countervailing Duties on Certain Corrosion-Resistant Carbon Steel Flat Products 
from Germany , WT/DS213/AB/R and Corr. 1, Report of the Appellate Body adopted 19 December 2002, paras. 
125-127 (footnotes omitted; italics in original) [hereinafter “ US - German Steel ”]. 
96  Korea - Definitive Safeguard Measure on Imports of Certain Dairy Products , WT/DS98/AB/R, 
Report of the Appellate Body adopted 12 January 2000, para. 120 [hereinafter “ Korea Dairy Safeguard ”]. WT/DS268/R 
Page A-108  
 
 In its fourth requirement, Article 6.2 demands only a summary – and it may be a brief 
one – of the legal basis of the complaint; but the summary must, in any event, be one 
that is “sufficient to present the problem clearly”.  It is not enough, in other words, 
that “the legal basis of the complaint” is summarily identified; the identification must 
“present the problem clearly”. 
86. For the reasons set forth below, page 4 of Ar gentina’s panel request utterly fails to comply 
with the requirement to “present the problem clearly.” 
 
1. Page 4 of the Panel Request does not “present the problem clearly” 
87. Three aspects of page 4 of Argentina’s panel request make it impossible to determine what 
Argentina’s problems are.  First, in the first para graph on page 4, while Argentina identifies five 
discrete alleged “measures,” it asserts that it is  challenging only “certain aspects” of those five 
“measures,” and then fails to identif y what those “certain aspects” are.
97  Second, in the second 
paragraph on page 4, Argentina indiscriminately lumps together various articles from three different 
WTO agreements, almost all of which consist of multiple paragraphs and contain multiple obligations.  Finally, Argentina provides absolutely no narrativ e description on page 4 of the legal basis of the 
complaint.  As a result, it is impossible to discern the nature of Argentina’s problems. 
 
88. With respect to the alleged “measures,” cons ider section 751(c), a provi sion of the Tariff Act 
of 1930 cited on page 4 of the panel request.  Sect ion 751(c) consists of six paragraphs, each of which 
deals with a different aspect of sunset reviews and each of which contains different requirements.
98  
Significantly, in Section A.1 of th e panel request, Argentina states that it is challenging paragraph (4) 
of section 751(c) as such because it allegedl y precludes Commerce from making the type of 
determination called for by the AD Agreement.99  On page 4, however, Argentina states that it “also” 
is complaining about “certain aspects” of section 751(c) as such.  The use of the word “also” suggests 
that the complaint on page 4 regarding section 751(c) involves something different from the complaint described in Section A.1, but the use of  the cryptic phrase “cer tain aspects” makes it 
impossible to determine the precise portion of section 751(c) that Argentina is complaining about on 
page 4.  This ambiguity is puzzling, given that the references in Section A.1 to paragraph 4 of section 
751(c) demonstrate that Argentina is capable of greater precision. 
 
89. A similar problem exists with respect to the ot her “measures” referred to in the first paragraph 
on page 4:  section 752 of the Tariff Act of 1930,
100 the SAA,101 the Sunset Policy Bulletin ,102 the 
                                                      
97  The United States places quotation marks around the word “measures,” because it does not agree that 
all of the documents identified by Argentina constitute  measures for purposes of WTO dispute settlement. 
98  See Exhibit ARG-1. 
99  In Section A.1, Argentina cites to 19 USC. §1675(c)(4), which is the US Code citation for 
section 751(c)(4) of the Tariff Act of 1930. 
100  Section 752 is included in Exhibit ARG-1.  Section 752 – which deals with likelihood 
determinations by Commerce and the ITC in sunset reviews and “changed circumstances” reviews – consists of 
three subsections, which, in turn, cumulatively contain sixteen paragraphs.  In Section B.3 of the panel request, Argentina states that it is complaining about two specific statutory requirements that appear in paragraphs (1) 
and (5), respectively, of subsection (a) of section 752.  On page 4, however, Argentina shifts to ambiguity.  
Again, the use of the word “also” indicates that Argentina is complaining about something in addition to what it is complaining about in Section B.3, but the use of the phrase “certain aspects” makes it impossible to determine 
precisely what that something is.  
101  With respect to the SAA, Argentina does not even bother to provide the page number(s) on which 
the alleged WTO inconsistency(ies) appears.  The SAA contains eighty-nine pages of text dealing with the AD 
Agreement.  Even if one limits one’s search to the thirteen  pages of text directly relating to sections 751(c) and 
752, it is impossible to discern from the panel request the precise content of those thirteen pages that Argentina  WT/DS268/R 
 Page A-109 
 
 
 Commerce regulations,103 and the ITC regulations.104  In essence, in the first paragraph on page 4, 
Argentina does nothing more than identify six different “laws, regulations, policies and procedures” 
and assert that “certain aspects” of these volumi nous materials are problematic, without providing a 
clue as to what those problematic aspects are. 
 
90. In addition to this vague description of the “measures,” in the second paragraph on page 4, 
Argentina indiscriminately lists six articles and one  annex of the AD Agreement, two articles of the 
GATT 1994, and one article of the WTO Agreement.  Because almost all of the articles consist of 
multiple paragraphs and contain multiple obligations, the reader must guess at the identity of the 
particular obligation(s) contained within an artic le with which a particular “measure” allegedly is 
inconsistent.    
91. More fundamentally, in view of the absence on page 4 of any narrative description of the 
problem, or of any indication of how the obligatio ns in these listed articles are linked to the listed 
measures, the reader is left to guess at how each measure allegedly breaches an obligation.  It is 
implausible to believe that Argentina is claiming that  each of the “measures” is inconsistent with each 
of the obligations contained in each of the articles cited.  Yet, without any recitation of the facts and 
circumstances describing the substance of these claims, the reader has no choice but to guess at the 
identity of these claims.  There is, quite simply, no “brief summary of the legal basis of the complaint 
sufficient to present the problem clearly,”  as required by Article 6.2 of the DSU. 
 
                                                                                                                                                                    
 
considers to be WTO-inconsistent. The pages of the SAA dealing with sections 751(c) and 752 are attached as 
Exhibit US-11. 
102  The portion of the Bulletin dealing with sunset reviews in anti-dumping proceedings consists of 
three major sections, with eleven subsections.  Argentina does not indicate the subsection – or even the section – it considers to be problematic, and it is impossible to discern from the panel request the precise content of the 
Bulletin that Argentina considers to be WTO-inconsistent.  The Sunset Policy Bulletin  is included in Exhibit 
ARG-35. 
103  With respect to the Commerce regulations, on page 4 Argentina at least limits its challenge to one 
section of the regulations, section 351.218.  However, section 351.218 consists of six subsections – (a) through 
(f) – that take up six pages in the US Code of Federa l Regulations and contain mu ltiple requirements.  In 
Section A.1 of the panel request, Argentina indicates that it is complaining about paragraph (e) of section 
351.218, and Argentina identifies by paragraph the provisions of the AD Agreement with which paragraph (e) 
allegedly is inconsistent.  Again, however, the use of “also” suggests that on page 4 Argentina is complaining 
about some aspect of section 351.218(e) other than what is complained about in Section A.1 of the panel request, but the use of the phrase “certain aspects” makes it impossible to determine precisely what that 
something is.  A copy of section 351.218 is attached as Exhibit ARG-3. 
In this regard, in its first submission, the focus of Argentina’s wrath is no longer section 351.218(e), 
but section 351.218(d)(2)(iii).  See Argentina's first submission, Section VII.A.  This switch is misleading given 
the express reference in the panel request to section 351.218(e), and the omission of any reference to section 
351.218(d)(2)(iii).  However, unlike page 4, Section A.1 of the panel request at least had a narrative explanation indicating that Argentina had a problem with the concept of “waiver” under the US anti-dumping law.  Thus, 
while the ability of the United States to defend itself certainly was not helped by this particular “bait-and-
switch” gambit of Argentina, the United States is not asserting that the prejudice it experienced thereby was of such a degree as to warrant a preliminary objection.  It does, however, serve to highlight the problems the 
United States encountered with respect to page 4 of the panel request, where there was no narrative explanation 
to assist the United States in deciphering Argentina’s jumble of “measures” and obligations. 
104  With respect to the ITC’s regulations, Argentina cite s to ten different sections of those regulations.  
These sections collectively establish a variety of mostly procedural requirements concerning sunset reviews.  
Argentina does not indicate which section – let alone the subsection – of the regulations it is complaining about, and it is implausible that Argentina is complaining about all ten sections. A copy of sections 207.60-69 of the 
ITC’s regulations is attached as Exhibit US-4.  As noted above, in its first submission, Argentina has not 
pursued any claims regarding the ITC’s regulations. WT/DS268/R 
Page A-110  
 
 92. The Appellate Body has found that “where the articles listed establish not one single, distinct 
obligation, but rather multiple obligations . . . the lis ting of articles of an agreement, in and of itself, 
may fall short of the standard of Article 6.2.”
105  Consistent with this finding, panels have found, for 
example, that references to Article  6, Article 9, or Article 12 of th e AD Agreement are not sufficiently 
specific to satisfy the requirements of Article 6.2 of the DSU.106  Although this type of defect can be 
overcome if a panel request “also sets forth facts and circumstances describing the substance of the 
dispute,”107  page 4 of Argentina’s panel request is devoid of any such explanatory material.  To 
paraphrase the Appellate Body, page 4 of “the  request [does not] give any indication as to why or 
how” the “measures” are inconsistent with US WTO obligations.108  In short, page 4 of Argentina’s 
panel request does not come anywhere close to satisf ying the Article 6.2 obligation to “present the 
problem clearly.”   
93. Moreover, Argentina has offered no explanation fo r its failure to comply w ith Article 6.2.   In 
Sections A and B of the request, Argentina demons trates that it is perfectly capable (in most 
instances) of identifying with precision specific US statutory and regulatory provisions and linking 
those provisions to specific paragraphs of WTO ag reements.  In addition, Argentina had more than 
one year in which to draft its panel request. 
 
94. It is possible that Argentina may attempt to argue that the United States somehow knows from 
the discussions at the consultations the nature of Argentina’s problems set forth on page 4 of the panel 
request.  Should Argentina make such an argume nt, the United States would have to vehemently 
disagree.  As a factual matter, the consultations were  singularly unenlightening as to the nature of the 
alleged WTO inconsistencies abou t which Argentina is complaining.  For example, during the 
consultations, Argentina never  discussed the ITC’s regulations.  More importantly, however, even if 
the consultations had been more in formative as to the nature of Argentina’s problems, that would not 
have absolved Argentina of its obligation to comply with Article 6.2 of the DSU.  As one panel has 
found:
109 
 
Article 6.2 requires that a panel request pr ovide the necessary information, regardless 
of whether the same information, or additiona l information, is already available to the 
responding party through different channels, e.g., previous discussions between the 
parties ... . [I]t is a corollary  of the due process objective inherent in Article 6.2 that a 
complaining party, as the party in control of the drafting of a panel request, should 
bear the risk of any lack of precision in the panel request.  
95. In summary, with respect to page 4 of Arge ntina’s panel request, be cause it is impossible to 
discern what Argentina’s problems are, the requ est fails to comply with the requirements of 
Article 6.2 of the DSU. 
                                                      
105  Korea Dairy Safeguard , para. 124. 
106  European Communities - Anti-Dumping Duties on Malleable Cast Iron Tube or Pipe Fittings from 
Brazil , WT/DS219/R, Report of the Panel, as modified by the Appellate Body, adopted 18 August 2003, 
para. 7.14(7) (discussing Articles 6, 9 and 12 of the AD Agreement) [hereinafter “ EC - Pipe Fittings ”]; and 
Thailand - Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel H-Beams from 
Poland , WT/DS122/R, Report of the Panel, as modified by the Appellate Body, adopted 28 September 2000, 
paras. 7.28-7.29 (discussing Article 6 of the AD Agreement) [hereinafter “ Thai Angles (Panel) ”]. 
107  Mexico - Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States , 
WT/DS132/R, Report of the Panel adopted 28 January 2000, para. 7.15 [hereinafter “ Mexico HFCS ”]. 
108  US - German Steel , para. 170 (italics in original). 
109 Canada - Measures Relating to Exports of Wheat and Treatment of Imported Grain , WT/DS276/12, 
Preliminary Ruling by the Panel issued 21 July 2003, para. 25 [hereinafter “ Canada Wheat Exports ”].  WT/DS268/R 
 Page A-111 
 
 
 2. The United States has been prejudiced by Ar gentina’s failure to comply with Article 6.2 
of the DSU 
96. The United States has been prejudiced by Arge ntina’s failure to comply with Article 6.2 of 
the DSU.110  With respect to the purpose underlying the requirements of Article 6.2 of the DSU, the 
Appellate Body previously has explained that:  “A defending party is entitled to know what case it has 
to answer, and what violations have been alleged so that it can begin preparing its defence. [...]  This 
requirement of due process is fundamental to ensuri ng a fair and orderly conduct of dispute settlement 
proceedings.”111 
 
97. In the case of page 4 of Argentina’s panel request, the ability of the United States to begin 
preparing its defence was delayed because, due to Argentina’s failure to comply with Article 6.2, the 
United States did not “know what case it has to an swer.”  As mentioned before, the United States did 
not, for example, even know which section(s) of the ITC’s regulations Argentina is complaining about 
or the specific WTO provision(s) with which the uni dentified section(s) alle gedly are inconsistent, 
and it is unreasonable to expect the United States to have begun preparing defences against all the 
possible combinations of measures/claims that Arge ntina might possibly set forth in its first written 
submission.112  If this denial of a due process right th at the Appellate Body has characterized as 
“fundamental” does not constitute prejudice, then nothing does. 
 
98. Moreover, as noted above, it is apparent from  Sections A and B of the panel request that 
Argentina was capable of drafting its complaints with precision.  The failure to employ similar 
precision on page 4 leaves one with the unavoidabl e impression that the shift from precision to 
extreme ambiguity was not inadvertent.  
 
99. Finally, this is not a case where the resp ondent failed to object earlier in the proceeding.113  
The United States identified the defects in Argentina’ s panel request at the first meeting of the DSB at 
which the request was on the agenda, made it clear at  that time that it did not understand the substance 
of Argentina’s complaint, and requested that Arge ntina submit a new panel request that complied with 
Article 6.2 of the DSU.  Unfortunately, Argentina refused to remedy the defects in its panel request, 
thereby leaving the United States with no choice but to seek redress from the Panel. 
 3. The Panel should find that the claims set fo rth on Page 4 of Argentina’s Panel Request 
are not within the Panel’s Terms of Reference  
100. Given Argentina’s failure to comply with Article 6.2 of the DSU, the Panel should find that 
the claims set forth on page 4 of Argentina’s pa nel request are not within the Panel’s terms of 
reference. 
 
101. In fact, Argentina appears to  have conceded as much at the DSB meeting of 19 May.  To 
recall, in response to the problems identified by th e United States with respect to page 4 of the panel 
                                                     
 
110  The United States assumes, for purposes of argument, that a failure to comply with Article 6.2 can 
be excused by a finding that the respondent has not been prejudiced. 
111 Thailand - Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel H-
Beams from Poland , WT/DS122/AB/R, Report of the Appellate Body adopted 28 September 2000, para. 88 
[hereinafter “ Thai Angles  (AB)”].  
112  Indeed, the United States still does not know the nature of Argentina’s problem with the ITC’s 
regulations, because Argentina’s first submission does not discuss those regulations. 
113  See United States - Safeguard Measures on Imports of Fresh, Chilled or Frozen Lamb Meat from 
New Zealand and Australia , WT/DS177/R, WT/DS178/R, Report of the Panel, as modified by the Appellate 
Body, adopted 21 December 2000, para. 5.42. WT/DS268/R 
Page A-112  
 
 request, Argentina stated that:  “It was Argentina’s intention (as the panel request clearly provided) to 
set forth the particular claims in the paragraphs  contained in Sections A and B of the document.”
114 
 
102. The United States would take issue with Arge ntina’s assertion concerning the clarity of its 
panel request.  Nonetheless, if Argentina continues to abide by what it told the DSB, then it should 
have no problem with a finding that its claims are li mited to those set forth in Sections A and B.  Such 
a finding would remedy, at least somewhat, the prej udice to the United States.  With one exception, 
discussed below, the United States believes that it understood the nature of the Argentine claims set 
forth in Sections A and B, and was able to begin preparing its defence with respect to those claims 
prior to the receipt of Argentina’s First Submission.115  Because these would be the only claims to 
which the United States would have to respond, it no  longer would be prejudiced by its inability to 
begin preparing a defence in response to the claims  – whatever they may be – included on page 4 of 
the panel request. 
 
C. BECAUSE SECTIONS B.1,  B.2 AND B.3 OF ARGENTINA ’S PANEL REQUEST DO NOT PRESENT 
THE PROBLEM CLEARLY WITHIN THE MEANING OF ARTICLE 6.2 OF THE DSU,  THE PANEL 
SHOULD FIND THAT ARGENTINA ’S CLAIMS IN THOSE SECTIONS ALLEGING INCONSISTENCIES 
WITH ARTICLE 3 AND ARTICLE 6 OF THE AD AGREEMENT ARE NOT WITHIN THE PANEL ’S 
TERMS OF REFERENCE  
103. The second category of defects in Argentina’ s panel request appear in Sections B.1, B.2 and 
B.3 of the request, which read as follows:116 
 
B. The Commission's Sunset Determin ation was inconsistent with the Anti-
Dumping Agreement and the GATT 1994: 
1. The Commission's application of th e standard for determining whether the 
termination of anti-dumping duty measure woul d be "likely to lead to continuation or 
recurrence of ... injury" was inconsistent with Articles 11, 3 and 6 of the Anti-
Dumping Agreement.  The Commission failed to apply the plain and ordinary 
meaning of the term "likely" and instea d applied a lower standard in assessing 
whether injury would continue or recur in the event of termination, in violation of 
Articles 11.1, 11.3, 11.4, 3.1, 3.2, 3.3, 3.4, 3.5, and 6 of the Anti-Dumping 
Agreement. 
2. The Commission failed to conduct an "objective examination" of the record 
and failed to base its determination on  "positive evidence" regarding whether 
termination of the anti-dumping duty measure "would be likely to lead to continuation or recurrence" of injury.  In  particular, the Commission's conclusions 
with respect to the volume of imports, price effects on domestic like products, and impact of imports of the domestic industry demonstrate the Commission's failure to conduct an objective examination in violat ion of Articles 11, 3, and 6.  The 
Commission's findings on these issues do not constitute "positive ev idence" of likely 
injury in the event of termination, in viol ation of Articles 11.1, 11.3, 11.4, 3.1, 3.2, 
3.3, 3.4, 3.5, and 6 of the Anti-Dumping Agreement. 
                                                     
 
114  WT/DSB/M/150 (1 July 2003), para. 32. 
115  As discussed below, however, the United States objects to Argentina’s inclusion in its first 
submission of matters not within the scope of Sections A and B of its panel request.  In addition, the United States reserves the right to object should Argentina’s future submissions also include claims that do not fall 
within the scope of Sections A and B of its panel request. 
116  WT/DS268/2 (4 April 2003), pages 3-4.  WT/DS268/R 
 Page A-113 
 
 
 3. The US statutory requirements that the Commission determine whether injury 
would be likely to continue or recur "wit hin a reasonably foreseeable time" (19 USC. 
§ 1675a(a)(1)) and that the Commission "shall consider that the effects of revocation 
or termination may not be imminent, but may manifest themselves only over a longer 
period of time" (19 USC. § 1675a(a)(5)) are inconsistent with Articles 11.1, 11.3 and 
3 of the Anti-Dumping Agreement. 
104. The defect in these three paragraphs is that Sections B.1 and B.2 allege an inconsistency with 
Article 6 of the AD Agreement in its  entirety, while Section B.3 allege s an inconsistency with  Article 
3 of the AD Agreement in its entirety.  These allegations do not comply with the Article 6.2 
requirement to “present the problem clearly,” because Articles 3 and 6 each consist of multiple 
paragraphs and contain multiple obligations.  It is implausible that Argentina is claiming that the ITC 
acted inconsistently with each one of these obligations.117  Without more, however, it is impossible to 
determine from the panel request the obligation(s) w ith which US law or the ITC’s actions allegedly 
are inconsistent; i.e., it is impossible to discern the nature of Argentina’s problem. 
 105. The Appellate Body previously has clarified th at the consistency of panel requests with the 
requirements of Article 6.2 must be analyzed on a case-by-case basis:
118 
 
Identification of the treaty provisions claime d to have been violated by the respondent 
is always necessary both for purposes of defining the terms of reference of a panel 
and for informing the respondent and the third parties of the claims made by the complainant; such identification is a minimu m prerequisite if th e legal basis of the 
complaint is to be presented at all.  But it may not always be enough.  There may be 
situations where the simple listing of the articles of the agreement or agreements 
involved may, in the light of attendant circ umstances, suffice to meet the standard of 
clarity  in the statement of the legal basis of the complaint.  However, there may also 
be situations in which the circumstances are such that the mere listing of treaty 
articles would not satisfy the standard of Article 6.2.  This may be the case, for 
instance, where the articles listed establish not one single, distinct obligation, but 
rather multiple obligations.  In such a situat ion, the listing of articles of an agreement, 
in and of itself, may fall short of the standard of Article 6.2. 
Consistent with the Appellate Body’s reasoning, prior panels have found that the 
mere listing of entire articles of the AD Agre ement fails to comply with Article 6.2 of 
the DSU.
119 
106. In this dispute, the circumstances are such that the mere listing of Article 3 or Article 6 does, 
indeed, “fall short of the standard of Article 6.2.”  This is demonstrated by the fact that elsewhere in 
its panel request, Argentina was able to cite to spec ific paragraphs of Articles 3 and 6.  In Sections 
A.1-A.3, Argentina alleged incons istencies with Articles 6.1, 6.2, 6.6, 6.8, 6.9 and 6.10.  In 
Sections B.1-B.2 and B.4, Argentina alleged inconsistencies with Articles 3.1, 3.2, 3.3, 3.4 and 3.5.  
Thus, Argentina’s failure to cite pa rticular paragraphs of Article 6 in Sections B.1 and B.2, and its 
                                                      
117  Indeed, based on its first submission, it appears that Argentina is not claiming that the United States 
acted inconsistently with Articles 3 and 6 in their entirety.  With respect to Section B.3 and Argentina’s claims 
that US statutory requirements are inconsistent, as such, with Article 3, in its first submission Argentina has 
claimed inconsistencies with Articles 3.1,  3.2, 3.4, 3.7 and 3.8.  Argentina' s first submission, paras. 270-275.  
With respect to Sections B.1 and B.2 and Argentina’s claims regarding the ITC’s application of the “likely” 
standard and the ITC’s alleged failure to engage in an “objective examination” based on “positive evidence,” in 
its first submission Argentina does not mention Article 6 at all .  Id., Sections VIII.A and VIII.B.  
118  Korea Dairy Safeguard , para. 124 (footnote omitted; italics in original). 
119  EC - Pipe Fittings , para. 7.14(7) (discussing Articles 6,  9 and 12 of the AD Agreement); and Thai 
Angles , paras. 7.28-7.29 (discussing Article 6 of the AD Agreement). WT/DS268/R 
Page A-114  
 
 failure to cite particular paragraphs of Article 3 in  Section B.3, must be due to the fact that:  (1) 
Argentina was unsure as to the claims it intended to make; or (2) it knew what claims it intended to 
make, but wished to conceal that information fo r the time being.  Neither motivation, however, 
constitutes an excuse for failing to co mply with Article 6.2 of the DSU. 
 
107. Argentina’s suggestion to the DSB that the questions it posed at the consultations somehow 
enabled the United States to discern the meaning of Argentina’s general references to Articles 3 and 6 
is factually incorrect and legally irrelevant.
120  As a factual matter, the questions posed by Argentina 
shed little light on the nature of Argentina’s complaints.  In the cas e of Article 6, Argentina asked 
only one question.  Included under the rubric of “General Questions Regarding Substantive 
Obligations of the Anti-Dumping Agreement Appli cable to Reviews Conducted Under Article 11.3", 
this question was as follows:  “Does the United States  consider that the requirements of Article 6 of 
the Anti-Dumping Agreement apply to reviews under Article 11.3?  If so, what are the specific 
requirements of Article 6 that apply to  reviews conducted under Article 11.3?”121  This question 
provided absolutely no information about Argentina’s problem.  It did not even ask about the sunset 
review on OCTG from Argentina.  Instead, it did nothing more than solicit the views of the United 
States – not Argentina – on the general relati onship, in the abstract, between Article 6 and 
Article 11.3. 
 
108. Argentina’s questions concerning Article 3 were no more illuminating.  Questions 49 and 50 
of the 14  November questions  asked about Article 3.3 and the concept of cumulation.122  In the 
second set of questions presented at the 17 December consultations, Questions 18-20 asked for US views, in the abstract, concerning Article 3.3, Question 21 asked whether the provisions of Article 3 
are mandatory or discretionary in anti-dumping i nvestigations, and Questions 22-23 and 33 asked 
about the relationship, in the abstract, between Artic le 3 and Article 11.3.  None of these questions 
shed any light on the nature of the problem refl ected in Argentina’s reference to Article 3 in 
Section B.3 of its panel request.  To the extent that four of these nine questions related to Article 3.3 
of the AD Agreement, one might conclude that Ar gentina had a concern about the use of cumulation 
in sunset reviews.  However, cumulation appears to be the subject of Section B.4 of the panel request, 
not Section B.3. 
 
109. In any event, it is legally irrelevant whether the questions posed by Argentina at consultations 
were informative as to Argentina’s concerns at that  time.  The legally relevant question is whether 
Argentina’s panel request complies with the requirement s of Article 6.2 of the DSU.  As noted above:  
“Article 6.2 requires that a panel request provide th e necessary information, regardless of whether the 
same information, or additional information, is already available to the responding party through 
different channels, e.g., previous discussions between the parties.”
123 
 
110. The United States has been prejudiced by this failure of Argentina to comply with the 
requirements of Article 6.2.  As in the case of pa ge 4 of Argentina’s panel request, the United States’ 
ability to begin preparing its defenc e has been impaired because, as a result of Argentina’s failure to 
comply with Article 6.2, the United States did not “know what case it has to answer.” 
 
                                                      
120  Before the DSB, Argentina asserted that the 86 questions presented by Argentina at the 
consultations enabled the United States to discern the nature of the problem underlying Argentina’s general reference to Articles 3 and 6 in the disputed sections of the panel request.  Exhibit US-2, para. 34. 
121 This question was Question 5 of the questions posed by Argentina at the 14 November 
consultations.  A copy of these questions, along with the questions posed by Argentina at the 17 December  consultations, is attached as Exhibit US-12. 
122  Id. 
123  Canada Wheat Exports , para. 25.  WT/DS268/R 
 Page A-115 
 
 
 111. Accordingly, the United States requests that the Panel find that the claims of inconsistency 
with Article 6 of the AD Agreement set forth in Sections B.1 and B.2 of Argentina’s panel request, 
and the claim of inconsistency with Article 3 of the AD Agreement set forth in Section B.3 of the 
panel request, are not within the Panel’s terms of reference. 
 
D. THE PANEL SHOULD FIND THAT CERTAIN MATTERS INCLUDED IN ARGENTINA ’S FIRST 
SUBMISSION ARE NOT WITHIN THE PANEL ’S TERMS OF REFERENCE BECAUSE THOSE MATTERS 
WERE NOT INCLUDED IN ARGENTINA ’S PANEL REQUEST  
112. The Panel was established with standard term s of reference, which means that the Panel’s 
terms of reference are limited to the matters raised in Argentina’s panel request.124  As the Appellate 
Body has previously explained:  “The jurisdiction of  a panel is established by  that panel’s terms of 
reference, which are governed by Article 7 of the DS U.  A panel may consider only those claims that 
it has the authority to consider under its terms of re ference.  A panel cannot assume jurisdiction that it 
does not have.”125 
 113. In its first submission, Argentina has raised five matters that are not included in Section A or B of its panel request.
126  These matters consist of the following: 
 
1. Argentina’s claim that Commerce’s sunset review practice, both as such and 
as applied, is inconsistent  with Article 11.3 of the AD  Agreement, because it is 
allegedly based on an irrefutable presumption.  This matter is discussed in Section VII.B.1 of Argentina’s First Submission, at paras. 124-137. 
2. Argentina’s claim that 19 USC. §§ 1675(c) and 1675(a)(c), the SAA, and the 
Sunset Policy Bulletin , taken together, establish an irrefutable presumption that is 
inconsistent with Article 11.3 of the AD Ag reement.  This matter is discussed in 
Section VII.B.2 of Argentina’s Firs t Submission, at paras. 138-147. 
3. Argentina’s claim that Commerce’s s unset review practice is inconsistent 
with Article X:3(a) of the GATT 1994.  This  matter is discussed in Section VII.E of 
Argentina’s First Submission, at paras. 194-210. 
4. Argentina’s claim that the ITC’s app lication of 19 USC. §§ 1675a(a)(1) and 
(5) in the sunset review of OCTG from Ar gentina is inconsistent with Articles 11.3 
and 3 of the AD Agreement.  This matter  is discussed in Section VIII.C.2 of 
Argentina’s First Submission, at paras. 276-277. 
5. Argentina’s claim that the US measures  it has identified are inconsistent with 
Article VI of the GATT 1994, Articles 1 and 18 of the AD Agreement, and 
Article XVI:4 of the WTO Agreement.  This  matter is discussed in Section IX of 
Argentina’s First Submission, at paras. 295-313. 
114. As explained below, none of these matters falls within the scope of Sections A or B of 
Argentina’s panel request.  Therefore, they ar e not within the Panel’s terms of reference. 
                                                     
 
124  Constitution of the Panel Established at the Request of Argentina; Note by the Secretariat, 
WT/DS268/3 (9 September 2003). 
125  India - Patent Protection for Pharmaceutical and Agricultural Chemical Products , 
WT/DS50/AB/R, Report of the Appellate Body adopted 16 November 1998, para. 92. 
126  As demonstrated above, the matters covered by page 4 of the panel request – whatever they may be 
– are not within the Panel’s terms of reference due to Argentina’s failure to comply with Article 6.2 of the DSU.  
Accordingly, the United States addresses only the question of whether the new matters contained in Argentina’s 
first submission fall within the scope of Sections A or B of the panel request.   WT/DS268/R 
Page A-116  
 
 1. Argentina’s claim that Commerce’s sunset review  practice, both as such and as applied, 
is inconsistent with Article 11.3 of the AD Agreement  
115. In Section VII.B.1 of its First Submission, Ar gentina claims that Commerce’s sunset review 
practice, both as such and as applied, is inconsistent with Article 11.3 of the AD Agreement.
127  
According to Argentina:  “[B]ecause it is the Department’s consistent practice to employ in its sunset 
reviews an irrefutable presumption of likely dumping,  the United States is acting inconsistently with 
Article 11.3 of the Anti-Dumping Agreement.”128 
 
116. The only portion of Argentina’s panel request that makes any reference at all to an 
“irrefutable presumption” is Section A.4.  However, Section A.4 does not contain an allegation that Commerce practice, either as such or as applie d, is inconsistent with Article 11.3 of the 
AD Agreement.  Instead, the only action alleged to be inconsistent with Article 11.3 as a result of this 
“irrefutable presumption” is the “Department’s Sunset Determination;” i.e., Commerce’s sunset 
review determination in OCTG from Argentina.
129  Although Section A.4 contains a reference to 
Commerce practice, Argentina cites this practice simply as evidence  of the irrefutable presumption 
that Commerce allegedly applied in the OCTG sunset review.  Argentina makes no claim that the practice itself is inconsistent with Article 11.3, eith er as such or as applied.  Moreover, none of the 
other paragraphs in Section A of the panel request can be construed as encompassing Argentina’s 
claim concerning Commerce practice. 
 
117. In addition, if Argentina actually is claiming that Commerce practice as applied in sunset reviews other than the review on OCTG from Argen tina is inconsistent with Article 11.3, then the 
United States also objects on the grounds that no Commerce sunset review determination other than 
that involving OCTG from Argentina is enumerated  in the panel request, and this matter was not the 
subject of consultations between the United States and Argentina.  Articles 4.3, 4.7 and 6.2 of the 
DSU make it clear that there must be consultations  on a matter before a panel can be requested.  
However, the only specific Commer ce sunset review on which consultations occurred was the review 
involving OCTG from Argentina.  2. Argentina’s claim that 19 USC. §§ 1675( c) and 1675(a)(c), the SAA, and the Sunset 
Policy Bulletin , taken together, establish an irrefutable presumption that is inconsistent 
with Article 11.3 of the AD Agreement  
118. In Section VII.B.2 of its First Submission, Argentina claims that 19 USC. §§ 1675(c) and 
1675a(a)(c), the SAA, and the Sunset Policy Bulletin , taken together, esta blish an irrefutable 
presumption that is inconsistent with Article 11. 3 of the AD Agreement.  According to Argentina:  
“Taken together, the US sunset statutory provisions, the SAA, and the Sunset Policy Bulletin  prescribe 
a standard that is inconsistent with Ar ticle 11.3 of the Anti-Dumping Agreement.”
130 
 
119. Again, the only portion of Argentina’s panel request that makes any reference at all to an 
“irrefutable presumption” is Section A.4.  However, Section A.4 does not contain an allegation that 
the statute, the SAA, or the Bulletin – taken together or in isolation – is incons istent with Article 11.3 
of the AD Agreement.  Instead, the only action alleged to be inconsistent with Article 11.3 as a result 
                                                      
127  Argentina’s discussion of this particular matter is somewhat confused, and it is not entirely clear as 
to whether Argentina is making both an “as such” and an “as applied” claim.  In an excess of caution, the United States assumes that Argentina is making both. 
128  Argentina's first submission, para. 137. 
129  Specifically, in its panel request, Argentina asserts that:  “The Department’s Sunset Determination 
is inconsistent with Article 11.3 of the Anti-Dumping Agreement . . . because it was based on a virtually 
irrefutable presumption ... .”  WT/DS268/2, page 3. 
130  Argentina's first submission, para. 138.  WT/DS268/R 
 Page A-117 
 
 
 of the alleged “irrefutable presumption” is  the “Department’s Sunset Determination;” i.e., 
Commerce’s sunset review determ ination in OCTG from Argentina.131  Although Section A.4 
contains a reference to “US law” and “the Department’s Sunset Policy Bulletin ,” Argentina simply 
cites these as the source of the presumption that Commerce allegedly applied in the OCTG sunset 
review determination.132  Argentina makes no claim in Section A.4 that the statutory provisions, the 
SAA and/or the Bulletin themselves are inconsistent w ith Article 11.3, either as  such or as applied.  
Moreover, none of the other paragraphs in Section A of the panel request can be construed as 
encompassing such a claim. 
 
120. Finally, other portions of Argentina’s pane l request make it clear that Argentina knows how 
to formulate a claim challenging US law “as such.”  In Section A.1 of the request, Argentina clearly states its belief that:  “US laws, regulations, and procedures regarding ‘expedited’ sunset reviews are 
inconsistent with” the AD Agreement.  Likewise, in  Section B.3, Argentina states that:  “The US 
statutory requirements . . . are inconsistent with” the AD Agreement.  The fact that Argentina did not 
make a comparable claim in Section A.4 can only be due to the fact that no such claim was intended.  
The inclusion of such a claim in Argentina’s first submission simply constitutes a belated and impermissible attempt to expand the jurisdiction of the Panel. 
 3. Argentina’s claim that Commerce’s sunset review practice is inconsistent with 
Article X:3(a) of the GATT 1994  
121. In Section VII.E of its First Submission, Argentina claims that Commerce’s sunset review 
practice, both as such and as applied, is inconsistent with Article X:3(a) of the GATT 1994.
133  
According to Argentina:  “[T]he data drawn from the Department’s own records demonstrates that the 
Department failed to administer in an impartial and reasonable manner US anti-dumping laws, 
regulations, decisions and rulings with respect to th e Department’s conduct of sunset reviews of anti-
dumping duty orders, in violation of Article X:3(a) of the GATT 1994.”134 
 
122. The only portion of Argentina’s panel request th at makes any reference at all to Article X:3(a) 
is Section A.4.  However, Section A.4 does not co ntain an allegation that Commerce practice, either 
as such or as applied, is inconsistent with Artic le X:3(a).  Instead, the only action alleged to be 
inconsistent with Article X:3(a) is th e “Department’s Sunset Determination;” i.e., Commerce’s sunset 
review determination in OCTG from Argentina.135  Although Section A.4 contains a reference to 
Commerce practice “in sunset reviews,” Argentina cites this practice simply as evidence of the alleged irrefutable presumption that was used in the review of OCTG from Argentina.  Argentina 
makes no claim that the practice itself is inconsistent with Article X:3(a), either as such or as applied.  
Moreover, none of the other paragraphs in Section A of the panel request can be construed as 
encompassing a claim concerning the consistency of Commerce practice with Article X:3(a). 
                                                     
 
131  Specifically, in its panel request, Argentina asserts that:  “The Department’s Sunset Determination 
is inconsistent with Article 11.3 of the Anti-Dumping Agreement . . . because it was based on a virtually irrefutable presumption ... .”  WT/DS268/2, page 3. 
132  Neither Section A.4 nor any other portion of Section A mentions the SAA. 
133  Here, too, Argentina’s discussion is somewhat confused, and it is not entirely clear as to whether 
Argentina is making both an “as such” and an “as applied” claim.  In an excess of caution, the United States 
assumes that it is making both. 
134  Argentina's first submission, para. 210. 
135 Specifically, in its panel request, Argentina asserts that:  “The Department’s Sunset Determination is 
inconsistent with . . . Article X:3(a) of the GATT 1994 because it was based on a virtually irrefutable 
presumption ... .”  WT/DS268/2, page 3. WT/DS268/R 
Page A-118  
 
 4. Argentina’s claim that the ITC’s application of 19 USC. §§ 1675a(a)(1) and (5) in the 
Sunset Review of OCTG from Argentina is in consistent with Articles 11.3 and 3 of the 
AD Agreement 
123. In Section VIII.C.2 of its First Submission, Argentina claims that the ITC’s application of 
19 USC. §§ 1675a(a)(1) and (5) in the sunset review of OCTG from Argentina is inconsistent with 
Articles 11.3 and 3 of the AD Agreem ent.  According to Argentina:  “[E]ven if the statutory language 
were consistent with the Anti-Dumping Agreement, the ITC failed to apply the statutory language to 
the evidence before it to conclude that revocation of  the orders would likely lead to continuation or 
recurrence of injury.”
136 
 124. Section 1675a(a)(1) requires the ITC to determ ine whether injury would be likely to continue 
or recur “within a reasonably foreseeable time,” while section 1675a(a)(5) requires that the ITC “shall 
consider that the effects of revocation or term ination may not be imminent, but may manifest 
themselves only over a longer period of time.”  The only portion of the panel request that refers to 
these provisions – and the concepts they embody – is Section B.3.  However, it is quite clear from the text that the claim in Section B.3 relates to the stat utory provisions “as such”, and not “as applied.”  In 
Section B.3, Argentina states that:  “The US statut ory requirements . . . are inconsistent” with the AD 
Agreement.  Section B.3 contains no reference to the “application” of these statutory provisions, 
either in general or in the sunset review of OCTG from Argentina. 
 
125. Moreover, other portions of Argentina’s pane l request make it clear that Argentina knows 
how to formulate a claim challenging US law “as applied.”  In Section A.2, Argentina complains about Commerce’s “application” of its expedited sunset review procedures in the OCTG review, and 
in Section A.5, Argentina complains about Commerce’ s “application” of the “likely” standard.  In 
Section B.1, Argentina complains about the ITC’s “application” of the “lik ely” standard, and in 
Section B.4 complains about the ITC’s “application” of a cumulative injury analysis.  The fact that 
Argentina did not make a comparable claim in S ection B.3 about the ITC’s “application” of the 
standards in 19 USC. §§ 1675a(a)(1) and (5) can only be due to the fact that no such claim was intended.  Instead, the inclusion of such a claim in Argentina’s first submission again simply 
constitutes a belated and impermissible attemp t to expand the jurisdiction of the Panel. 
 5. Argentina’s claim that the US measures it has identified are inconsistent with Article VI 
of the GATT 1994, Articles 1 and 18 of the AD Agreement, and Article XVI:4 of the WTO Agreement  
126. In Section IX of its First Submission, Argentin a claims that all of the “measures” it identified 
in its panel request are inconsistent with Article VI of the GATT 1994, Articles 1 and 18 of the AD 
Agreement, and Article XVI:4 of th e WTO Agreement.  These claims are consequential claims in the 
sense that they depend upon a finding that some ot her provision of the AD Agreement or GATT 1994 
has been breached. 
 
127. However, neither Section A nor Section B of Argentina’s panel request refers to these 
provisions.  Instead, the only portion of Argentina’ s panel request that makes any reference at all to 
Article VI, Articles 1 and 18, and Article XVI:4 is  page 4.  As demonstrated above, however, the 
claims set forth on page 4 are not within the Panel’s terms of reference.  
128. These dependent claims also are not within th e Panel’s terms of refere nce to the extent that 
they are dependent on a claim that itself is not within the Panel’s terms of reference. 
                                                     
 
136  Argentina's first submission, para. 277.  WT/DS268/R 
 Page A-119 
 
 
 E. CONCLUSION  
129. The portions of the panel request to which the United States is not objecting demonstrate that 
Argentina knows perfectly well how to file a panel request that conforms with the obligations of 
Article 6.2 of the DSU.  This only tends to highlight the clearly defective nature of the remainder of 
Argentina’s panel request. 
 
130. The requirements of Article 6.2 exist for a reason, a reason which the Appellate Body has 
succinctly summarized as follows:  “A defending pa rty is entitled to know what case it has to answer, 
and what violations have been alleged so that it can begin preparing its defence.”137  Here, Argentina 
has denied the United States that to which it is entitled by Article 6.2.  
V. GENERAL LEGAL PRINCIPLES  
A. S
COPE AND STANDARD OF REVIEW  
131. Articles 17.5 and 17.6 of the AD Agreement set forth standards concerning the scope and 
standard of review in disputes involving anti-dumping measures to which panels must adhere.  With respect to the “scope” of review, Article 17.5(ii)  of the AD Agreement directs a panel to limit its 
review to the facts that were before the investiga ting authority when it made its determination.  With 
respect to the sunset review on OCTG from Arge ntina made by Commerce and the ITC, this means 
the evidence contained in the administrative records of Commerce and the ITC, respectively.
138  This 
concept is consistent with the fact that where a pa nel is reviewing the WTO-consistency of an action 
taken by an administrative agency, a panel is not to act as a trier-of-fact in the first instance or to 
otherwise engage in a de novo  review of the evidence before the agencies. 
 
132. With respect to the standard of review, Ar ticle 17.6(i) of the AD  Agreement addresses a 
panel’s review of the facts, providing as follows: 
 
in its assessment of the facts of the matter, the panel shall determine whether the authorities' establishment of the facts was proper and whethe r their evaluation of those facts was unbiased 
and objective.  If the estab lishment of the facts was proper and the evaluation was unbiased 
and objective, even though the panel might have re ached a different conclusion, the 
evaluation shall not be overturned .  (Emphasis added.) 
 
133. In other words, panels are not to conduct their own de novo  evaluation of the facts if the 
domestic investigating authority’s establishment of the facts was prop er and if its evaluation of the 
facts was unbiased and objective.  This applies even if the panel – had it stood in the shoes of that authority originally –  might ha ve decided the matter differently. 
 134. Finally, with respect to the standard of review and a panel’s review of interpretative issues, 
Article 17.6(ii) provides as follows: 
 
 the panel shall interpret the relevant provisions of the Agreement in accordance with 
customary rules of interpretation of public inte rnational law.  Where the panel finds that a 
relevant provision of the Agreem ent admits of more than one permissible interpretation, the 
panel shall find the authorities' measure to be in conformity with the Agreement if it rests 
upon one of those permissible interpretations. 
 
                                                     
 
137  Thai Angles  (AB), para. 88. 
138  See, e.g., Mexico - HFCS , para. 7.43 (“[W]e are required to consider this dispute on the basis of the 
facts before the investigating authority, pursuant to Article 17.5(ii) of the AD Agreement.”). WT/DS268/R 
Page A-120  
 
  
135. This means, for example, that if dictionary de finitions reveal that a treaty term has more than 
one ordinary meaning, an authority’s measure that is based on one of those meanings could be 
permissible and in conformity with the AD Agreement.
139 
 
B. BURDEN OF PROOF :  ARGENTINA BEARS THE BURDEN OF PROVING ITS CLAIMS  
136. It is well-established that the complaining party in a WTO dispute bears the burden of coming 
forward with argument and evidence that establish a prima facie  case of a violation.140  If the balance 
of evidence and argument is inconclusive with respect to a particular claim, the Panel must find that 
the complaining party, Argentina,  failed to establish that claim.141  
 
137. For the reasons discussed below, the United States believes that Argentina has failed to meet 
its burden to establish a prima facie  case.  In the event the Panel should find to the contrary, however, 
Argentina's  claims are also rebutted below. 
 
VI. LEGAL ARGUMENT  
A. SECTION 751( C)(4) OF THE ACT AND SECTION 351.218( D)(2)( III) OF COMMERCE ’S SUNSET 
REGULATIONS – THE “WAIVER ” PROVISIONS – ARE NOT INCONSISTENT , AS SUCH , WITH THE 
AD AGREEMENT  
138. Argentina claims that section 751(c)(4) of the Act and section 351.218(d)(2)(iii) of 
Commerce’s Sunset Regulations (the so-called “waive r” provisions) are inconsistent, as such, with the 
AD Agreement.  First, Argentina claims that thes e provisions preclude Commerce from conducting a 
sunset review and making a determination as to whether the expiry of the duty would lead to the 
continuation or recurrence of dumping, as required by Article 11.3 of AD Agreement.  In particular, 
Argentina contends that when a respondent interested  party is found to have waived participation in a 
sunset review, these provisions improperly require Co mmerce to find that the revocation of the order 
would be likely to lead to the continuation or recurrence of dumping without requiring Commerce to 
make any substantive likelihood determination.142  Second, Argentina claims that these provisions are 
inconsistent with Articles 6.1 and 6.2 of the AD Agreement because they foreclose opportunities for a 
respondent interested party to present evidence or to defend its interests in a sunset review.143   
 
139. As demonstrated below, Argentina’s claims are based on a misrepresentation of the purpose 
and operation of the “waiver” provisions, and theref ore have no merit.  An accurate understanding of 
these provisions reveals that they do not mandate WTO-inconsistent behaviour or preclude WTO-
consistent behaviour.  
                                                     
 
139  Argentina - Definitive Anti-Dumping Duties on Poultry from Brazil , WT/DS241/R, Report of the 
Panel adopted 19 May 2003, paras. 7.337-7.343 (Argentina did not act inconsistently with Article 4.1 of the AD Agreement where its action was consistent with one, if not all, dictionary definitions of the phrase “major 
proportion.”). 
140  See, e.g., United States - Measures Affecting Imports of Woven Shirts and Blouses from India , 
WT/DS33/AB/R, Report of the Appellate Body, adopted 23 May 1997, page 14; EC Measures Concerning 
Meat and Meat Products , WT/DS26/AB/R, WT/DS48/AB/R, Report of the Appellate Body adopted 
13 February 1998, para. 104; and Korea – Definitive Safeguard Measure on Imports of Certain Dairy Products , 
WT/DS98/R, Report of the Panel, as modified by the Appellate Body, adopted 12 January 2000, para. 7.24.  
141  See, e.g., India - Quantitative Restrictions on Imports of Agricultural, Textile and Industrial 
Products , WT/DS90/R, Report of the Panel, as affirmed by the Appellate Body, adopted 22 September 1999, 
para. 5.120. 
142  Argentina's first submission, paras. 114-117. 
143  Argentina's first submission, paras. 121-122.  WT/DS268/R 
 Page A-121 
 
 
 140. Before turning to the provisions themselves, however, it is important to recognize the limited 
extent to which the AD Agreement actually addresses sunset reviews.  Indeed, the sole provision of 
the AD Agreement generating the need to conduct s unset reviews is Article 11.3.  Article 11.3 
provides as follows: 
 
Notwithstanding the provisions of paragraphs 1 and 2, any definitive anti-dumping 
duty shall be terminated on a date not late r than five years from its imposition (or 
from the date of the most r ecent 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 date  on their own initiative or upon a duly 
substantiated request made by or on behalf of the domestic industry within a reasonable period of time prior to that date, that the expiry of the duty would be likely 
to lead to continuation or recu rrence  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 assessment procee ding under subparagraph 3.1 of Article 9 
that no duty is to be levied shall not by itself require the authorities to terminate the 
definitive duty. 
 
141. Thus, Article 11.3 establishes the simple requirement that five years after an order’s 
imposition, it must either be terminated or a review must be conducted to determine whether 
termination of that order “would be likely to lead to continuation or recurrence of dumping and injury.”  Outside of this standard and the requirement  to initiate a review or re voke the order, the text 
of Article 11.3 contains no provisions governing the conduct of sunset reviews, the type of evidence 
sufficient to satisfy the “likelihood test” or the methodologies or modes of analysis to be used in 
reaching a sunset determination.  As ar ticulated succinctly by the panel in US – Japan Sunset : 
 
Article 11.3 is silent as to how an authority should or must establish that dumping is likely to continue or recur in a sunset re view.  That provision itself prescribes no 
parameters as to any methodological requirements that must be fulfilled by a 
Member’s investigating authority in making such a “likelihood” determination.
144 
142. To be sure, there are a few other provision s in the AD Agreement that reference sunset 
reviews by referencing reviews in general.  Article 11.4 explains that any review under Article 11 
“shall be carried out expeditiously and shall normally be concluded within 12 months of the date of 
initiation of the review” and that the provisions of  Article 6 regarding “evid ence and procedure shall 
apply to any review carried out under this Article.”  Article 12.3 states that the transparency and 
notice provisions of Article 12 apply “ mutatis mutandis to the initiation and completion of reviews 
pursuant to Article 11.”  Neither Article 6 nor Ar ticle 12, however, contains any provisions regarding 
the methodologies or analysis to be employed in making the determination of whether dumping and 
injury is likely to continue or recur.  Attempts  to read into Article 11.3 substantive obligations 
allegedly contained in other provisions of th e AD Agreement have been soundly rejected.145  In sum, 
aside from the obligations contained in Article  11.3 and those provisions of Articles 6 and 12 
                                                      
144  See United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel 
Flat Products from Japan , WT/DS244/R, Appeal Notified 15 September 2003, para. 7.166. [hereinafter US – 
Japan Sunset ]. 
145  In US - German Steel , para. 112, the Appellate Body found that Article 22.1 of the Agreement on 
Subsidies and Countervailing Measures  (“SCM Agreement”) – the counterpart to Article 12.1 of the 
AD Agreement – did not create an evidentiary standard applicable to the initiation of sunset reviews.  In US - 
Japan Sunset , para. 7.33, the panel followed US - German Steel  and found that Article 12.1 of the 
AD Agreement likewise does not create an evidentiary standard applicable to the initiation of sunset reviews. WT/DS268/R 
Page A-122  
 
 discussed above, the AD Agreement leaves the conduct of sunset reviews to the discretion of the 
Member concerned. 
 1. The Waiver Provisions are not inconsistent  with the obligation to conduct a “review” 
and make a “determination” under Article 11.3 of the AD Agreement  
143. Argentina claims that section 751(c)(4) of the Act and section 351.218(d)(2)(iii) of 
Commerce’s Sunset Regulations “preclude” Commerce from making a “determination” and from 
conducting a “review” in accordance with the obliga tions of Article 11.3.  Argentina argues that 
section 751(c)(4) and section 351.218(d) (2)(iii) of Commerce’s Sunset Regulations  are inconsistent 
with Article 11.3 because they (1) “preclude” Commerce from conducting sunset reviews, and (2) require Commence to make an affirmative determina tion of likelihood without further inquiry in cases 
where a respondent interested party fails to respon d to the notice of initiation in a sunset review 
proceeding.
146  In order to understand why these claims are unfounded, it is first necessary to 
understand what these US statutory and regulatory provisions provide and do not provide. 
 144. Section 751(c)(4)(A) provides that a responden t interested party may “waive” participation in 
a sunset review proceeding.  This allows, but does not require, a respondent interested party to 
participate solely in the ITC’s portion of the sunset review concerning the likelihood of continuation 
or recurrence of injury.
147  Should a respondent interested party explicitly choose to waive 
participation in Commerce’s sunset review proceeding, section 751(c)(4)(B) directs Commerce to 
conclude that revocation of the order would be li kely to lead to continuation or recurrence of 
dumping.148  
 
145. Section 351.218(d)(2) of Commerce’s Sunset Regulations provides:  (1) the time, form and 
content for an express waiver; (2) that failure to respond to a notice of initiation will be taken as an 
implied waiver; and (3) that a waiver, whether expres s or implied, shall preclude acceptance of further 
information from the waiving party.149  Section 351.218(d) (2)(iii) – the specific provision that 
Argentina complains of in its first submission – prov ides that where a responde nt interested party fails 
to respond to Commerce’s notice of initiation of a sunset review, the waiver of that respondent 
interested party is presumed or implied.  
 
146. Argentina’s claim fails in two significant respects.  First, Argentina narrowly reads section 751(c)(4) and section 351.218(d)(2)(iii) in isolation from other statutory and non-statutory elements of US laws and regulations governing the conduct of suns et reviews.  As discussed in detail below, it is 
clear that Section 751(c)(4) and section 351.218(d)(2)(iii) do not,  in fact, preclude Commerce from 
conducting a sunset review as required by Article 11.3, because, when a respondent interested party 
fails to respond to Commerce’s notice of initiation of a sunset review, the affirmative likelihood 
determination described in section 751(c)(4)(B) is limited to the party that failed to respond.
150 
 
147. In addition, section 751(c)(4) does not alter or amend the requirements under other provisions 
of US law for Commerce to in itiate and conduct sunset reviews generally in accordance with 
                                                      
146  Argentina's first submission, paras. 114-117. 
147  19 USC. § 1675(c)(4)(A) (Exhibit ARG-1). 
148  19 USC. § 1675(c)(4)(B) (Exhibit ARG-1). 
149  19 C.F.R. § 351.218(d)(2) (Exhibit ARG-3). 
150  See section 751(c)(4)(B) of the Act, providing that the affirmative likelihood determination 
resulting from the waiver described in section 751(c)(4)(A) only applies “with respect to that party.”  19 USC. §  
1675(c)(4)(B) (Exhibit ARG-1); see also , SAA at 881 (“If Commerce receives such a waiver, Commerce will 
conclude that revocation or termination would be likely to lead to continuation or recurrence of dumping or 
countervailable subsidies with respect to that submitter .”)  (Emphasis added) (Exhibit US-11).  The United 
States notes that the portion of the SAA submitted by Argentina as Exhibit ARG-5 conveniently omits page 881.  WT/DS268/R 
 Page A-123 
 
 
 Article 11.3.  Principally, under section 751(c)(1) of  the Act, Commerce remains obligated, five years 
after an order’s imposition, to “conduct a review to determine . . . whether revocation of the . . . anti-
dumping duty order . . . would be likely to lead to continuation or recurrence of dumping ... .”151  In 
addition, section 75 1(c)(2) provides that “[n]ot later than 30  days before the fifth anniversary of the 
date described in paragraph (1), the administering authority shall publish ... a notice of initiation of a 
review.”152 
 
148. Commerce regulations elaborate on these statutory obligations by providing details about the 
timing of initiations, what is required to respond to a notice of initiation, and what information 
Commerce requires from  interested parties.153  Section 751(c)(4) and s ection 351.218(d)(2)(iii) of 
Commerce’s Sunset Regulations  provide for a “waiver” where respondent interested parties do not 
choose to participate in Commerce’s sunset review proceeding.  The result of such a waiver is that, 
with respect to the party waiving its right to part icipate, Commerce will conclude that revocation of 
the order would be likely to lead to continuation or recurrence of dumping for that non-responding 
party.154  Section 751(c)(4) is not a provision which precludes the conduct of a sunset review.  Indeed, 
regardless of whether a respondent interested part y affirmatively waives pa rticipation or Commerce 
finds that the failure of the respondent interested party to file a substantive response or a complete 
substantive response constitutes a waiver, Commer ce is still required by US law and its own 
regulations to initiate and conduc t the required sunset review.  
 
149. Second, Argentina improperly reads Article 11.3 to require Commerce to conduct a full 
sunset review proceeding even where the respondent interested parties have indicated – either by 
means of an affirmative waiver or by a failure to re spond – that they have no interest in participating 
in the review and where all existing evidence suppor ts a determination that revocation would be likely 
to lead to continuation or recurrence of dumping.  Nothing in Article 11.3 specifically or the AD 
Agreement generally requires authorities to engage in such a waste of their own resources and the 
resources of private parties.155 
 
150. Argentina argues that by concluding that revocation would be likely to lead to continuation or 
recurrence of dumping in instances where a responde nt interested party waives its participation by 
failing to respond to Commerce’s notice of initiation, Commerce somehow fails to “determine” – 
within the meaning of Article 11.3 – whether dumping would be likely to continue or recur.156  This 
argument, however, fundamentally overlooks the practical consequences that waiver has on the 
alternative conclusion.  When viewed in light of these consequences, it is clear that section 751(c)(4) 
and section 351.218(d)(2)(iii) are not obstacles  to Commerce making the required likelihood 
determination.   
151. The consequence of a respondent interested pa rty’s decision not to participate in Commerce’s 
review is the absence of informa tion critical to the determination of whether dumping would be likely 
                                                     
 
151  19 USC. § 1675(c)(1) (Exhibit ARG-1). 
152  19 USC. § 1675(c)(2) (Exhibit ARG-1).   Section 751(c)(3) provides truncated time-lines for 
completion of sunset reviews in instances where interested parties do not respond or provide inadequate 
substantive responses to Commerce’s notice of initiation.  19 USC. § 1675(c)(3) (Exhibit ARG-1). 
153  19 C.F.R. § 351.218(a)-(d) (Exhibit ARG-3). 
154  19 USC. § 1675(c)(4)(B) (Exhibit ARG-1); 19 C. F.R. § 351.218(d)(2) (Exhibit ARG-3). 
155  The SAA in discussing section 751(c)(3) states that this provision “is intended to eliminate needless 
reviews. This section will promote administrative efficiency and ease the burden on agencies by eliminating needless reviews while meeting the requirements of the [AD and SCM] Agreements.  If parties provide no or 
inadequate information in response to a notice of initiation, it is reasonable to conclude that they would not 
provide adequate information if the agencies conducted a full-fledged review. However, where there is sufficient willingness to participate and adequate indication that parties will submit information requested 
throughout the proceeding, the agencies will conduct a full review.”  SAA, at 880 (Exhibit US-11). 
156  Argentina's first submission, para. 109. WT/DS268/R 
Page A-124  
 
 to continue or recur with respect to that non-res ponding party – specifically, information with respect 
to that foreign producer’s or exporter’s (1) view as to the likely effect of revocation,
157 (2) volume and 
value of exports of subject merchandise to the United States prior to the sunset review and the original 
investigation,158 (3) percentage of the total exports of subject merchandise to the United States,159 and 
(4) position as to the existence of other information suggesting whether or not it is likely to continue 
or resume dumping after revocation of the order.160  Such information is within the control of foreign 
producers and exporters and cannot generally be ob tained readily from other sources.  Thus, an 
affirmative statement from a foreign producer or e xporter that it will not participate in Commerce’s 
review, or the failure of the resp ondent interested party to file a substantive response or a complete 
substantive response, leaves Commerce in the posi tion of having to base its determination on the 
views of domestic interested parties and informatio n already contained in the administrative record of 
the sunset review proceeding.  This information includes prior and current dumping margins, 
Commerce’s original investigation determination, and any information provided by interested parties, 
both the domestic and foreign interested partie s, in their substantive responses and rebuttal 
responses.161 
 152. Under Commerce’s Sunset Regulations, domestic interested parties must notify their intent to 
participate in Commerce’s review within 15 days of initiation (15 days prior to when respondent 
interested parties are to submit th eir waivers, if any).  A failure to do so results in automatic  
revocation.
162  Thus, domestic interested parties who do not believe revocation would be likely to lead 
to continuation or recurrence of dumping and, thus, no longer view continuation of the order as necessary, will simply decline to state an intention to  participate in the review and effectively agree to 
the automatic revocation of the order. 
 
153. In other words, it is to be expected that if domestic interested parties do submit substantive 
responses, those responses inevitably will contain in formation that is supportive of, and not opposed 
to, an affirmative finding of likelihood.  Therefore, if a respondent interested party does not submit 
information or argument in favor of revocation, th e only interested party information on the record 
with respect to that respondent would be that of  domestic interested parties in support of an 
affirmative finding of likelihood and continuation of th e order.  To the extent that other respondent 
interested parties have submitted information for consideration in the sunset review proceeding, 
Commerce also considers that information in  making its final sunset determination. 
 
154. It seems evident that Commerce could conduct a “review” and “determine” that revocation 
would be likely to lead to continuation or recu rrence of dumping with respect to a particular 
respondent interested party where that same party failed to file a complete substantive response to 
Commerce’s notice of initiation of the sunset review.  It is clear that the words “review” and 
“determine” do not contain the broad substantive ru les suggested by Argentina.  “Review” may be 
defined as “a formal assessment of something with the intention of instituting change if necessary.”
163  
“Determine” may be defined as to “[c]ome to a judicial decision; make or give a decision about 
something ... [c]onclude from reas oning or investigation, deduce.”164  “Deduce” is further defined as 
to “[i]nfer, draw as a logical conclusion ( from  something already known or assumed); derive by a 
                                                      
157  19 C.F.R. § 351.218(d)(3)(ii)(F) (Exhibit ARG-3). 
158  19 C.F.R. § 351.218(d)(3)(iii)(B)-(C), (E) (Exhibit ARG-3). 
159  19 C.F.R. § 351.218(d)(3)(iii)(D) (Exhibit ARG-3). 
160  19 C.F.R. § 351.218(d)(3)(iv)(A)-(B) (Exhibit ARG-3). 
161  See 19 C.F.R. § 351.308(f) (Exhibit US-3); and the SAA, at 879-880 (Exhibit US-11). 
162  19 C.F.R. §§ 351.218(d)(1)(i) and 351.218(d)(iii)(B)  (Exhibit ARG-3) .  
163  Concise Oxford English Dictionary  (10th ed. 2001) (Exhibit US-24); see also New Shorter Oxford 
English Dictionary  2582 (1993) (defin ing “review” as “[a]n inspection, an examination ... [a] ge neral survey or 
reconsideration of some subj ect or thing ... a retrospect, a survey of the past”). 
164  New Shorter Oxford English Dictionary 651 (1993).  WT/DS268/R 
 Page A-125 
 
 
 process of reasoning.”165  Thus, while Article 11.3 – throug h the use of the words “review” and 
“determine” – arguably requires Commerce to conduct a formal assessment of whether dumping is 
likely to continue or recur that is supported by some type of reasoning and evidence, it does not 
provide the procedures for conducting such an assessme nt or the analytical approach or evidence to be 
employed in the assessment. 
 
155. Where respondent interested parties have failed to respond to Commerce’s notice of initiation 
of a sunset review, section 351.218(d)(2)(iii) pr ovides that these non-resp onding parties will be 
considered to have waived their rights to participate in the proceeding.166  Although the determination 
to expedite a sunset review is made on a “cas e-by-case” basis, section 351.218(e)(1)(ii)(A) of 
Commerce’s Sunset Regulations  provides that Commerce normally will expedite the review where it 
has not received substantive responses from foreign interested parties representing more than 50 per 
cent of the total exports of the subject merchandise  for the five-year period preceding the sunset 
review.167  When Commerce has not received an adequate response from foreign interested parties (in 
the aggregate), section 351.218(e)(1)(ii)(C) of Commerce’s Sunset Regulations provides that 
Commerce will make its final likelihood determ ination on the basis of the facts available.168 
 
156. Section 351.308(f) of Commerce’s Sunset Regulations  provides that when Commerce makes 
a likelihood determination on the basis of “facts available,” Commerce normally will rely on dumping 
margins from the original investigation and any s ubsequent administrative reviews, as well as any 
information submitted by interested pa rties in their substantive responses.169  Thus, even in cases 
where there is an inadequate response from foreign interested parties to th e notice of initiation, 
Commerce will make the final like lihood determination on the evidence developed during the sunset 
review proceeding to date. 
 
157. Thus, with respect to the statutory instru ction in section 751(c)(4)(B) that Commerce 
conclude that revocation would be likely to lead  to continuation or recurrence of dumping with 
respect to a waiving respondent interested party, this  instruction merely reflects the extent and type of 
information upon which Commerce would have to base its sunset determination in cases where a 
respondent interested party waived  participation.  Section 351.218(d )(2)(iii) addresses this lack of 
participation and the failure to supply the necessary information where a respondent interested party 
fails to respond to the notice of initiation of a su nset review.  As such, section 751(c)(4) and section 
351218(d)(2)(iii) are not provisions that “precl ude” Commerce from cond ucting a “review” and 
“determin[ing]” whether dumping is likely to continue or recur. 
 
158. Argentina also fails to understand the role of these provisions in furthering compliance with another important obligation of the AD Agreement relating to sunset re views.  Article 11.4 instructs 
as follows: 
 
 “The provisions of Article 6 regarding ev idence and procedure shall apply to any 
review carried out under this Article.  Any such review shall be carried out 
expeditiously ... .”   
159. Article 6.14, in turn, provides as follows: 
 
The procedures set out above are not intende d to prevent the auth orities of a Member 
from proceeding expeditiously with regard to initiating an investigation, reaching 
                                                     
 
165  Id. at 613. 
166  19 C.F.R. 351.218(d)(2)(iii) (Exhibit ARG-3). 
167  19 C.F.R. 351.218(e)(1)(ii)(A) (Exhibit ARG-3). 
168  19 C.F.R. 351.218(e)(1)(ii)(C) (Exhibit ARG-3). 
169  19 C.F.R. 351.308(f) (Exhibit US-3). WT/DS268/R 
Page A-126  
 
 preliminary or final determinations, whether affirmative or negative, or from applying 
provisional or final measures, in accord ance with relevant provisions of this 
Agreement. 
160. “Expeditious” is defined as “promptly and efficiently.”
170  Thus, the AD Agreement should 
not operate as a bar to the completion of reviews in as promptly and efficiently a manner as possible.  
The waiver provisions of US law effectuate the expeditious completion of reviews by allowing a 
determination to be made in a suns et review as soon as it becomes ev ident that a finding of likelihood 
may be warranted.  In other words, when a respondent  interested party has chosen not to participate, 
the statute instructs Commerce to make such an affirmative finding of likelihood because the evidence 
before Commerce demonstrates that there is a likelihood of dumping with respect to the waiving party  
if the order were to expire.  Under these circumstan ces, a full-fledged sunset review would be fruitless 
and a waste of administrative and party resources171 – a result in direct contravention of the 
instructions of Articles 6.14 and 11.4 of the AD Agreement. 
 2. Section 751(c)(4) of the Act and Sectio n 351.218(d)(2)(iii) of Commerce’s Sunset 
Regulations are not inconsistent with Articles 6.1 and 6.2 of the AD Agreement  
161. Argentina also claims that the provision in US law for expedited sunset reviews is 
inconsistent with certain obligations in Article  6 of the AD Agreement regarding evidence and 
procedure.  Specifically, Argentina claims that section 751(c)(4) of the Act and 
section 351.218(d)(2)(iii) of Commerce’s Sunset Regulations  preclude Commerce, in expedited 
sunset reviews, from observing the obligations containe d in:  (1) Article 6.1 that all interested parties 
have “ample opportunity to present in writing all ev idence which they consider relevant,”  and (2) 
Article 6.2 that all interest parties have a “fu ll opportunity for the defence of their interests.”
172 
 
162. As an initial matter, it is important to remember that any difference in the rules governing 
evidence and procedure in expedited as compared to  full reviews is not relevant to whether US laws 
and regulations concerning expedited reviews mandat e WTO-inconsistent action.  Indeed, because the 
evidentiary and procedural rules used in expedited re views are consistent with the  obligations of the 
AD Agreement, it is irrelevant that in so-called “ful l sunset reviews” the United States goes beyond 
what is required of it under the AD Agreement.  In other words, that the United States may afford 
parties expanded opportunities to su bmit evidence and argument in a full sunset review is a matter of 
US policy, not an obligation under the AD Agreement, and is not grounds to find fault with the evidentiary and procedural rules governing expedited sunset reviews.  
                                                     
 
170  Merriam-Webster Online Dictionary  (2002) (Exhibit US-25); see also  New Shorter Oxford English 
Dictionary  886 (1993) (defining “expeditious” as “[s]peedily performed or given; conducive to speedy 
performance”). 
171  Moreover, in light of the task before Commerce immediately following the entry into force of the 
WTO Agreement – conducting reviews of 325 existing orders – prolonging reviews in cases where respondent 
interested parties have waived participation would be an inefficient use of administrative resources, taking resources away from those contested reviews involving large amounts of factual information and devoting them 
to needlessly extended reviews involving little, if any, disagreement among the parties and a limited factual 
record.  Section 751(c)(4) is, thus, a means to allow Commerce to distribute its limited resources effectively to the more contested and complicated of cases. 
172  Argentina First Written Submission,  paras. 120-122.  Articles 6.1 and 6.2 apply to sunset reviews 
by virtue of the cross-reference in Article 11.4 to Article 6.  WT/DS268/R 
 Page A-127 
 
 
 (a) Section 751(c)(4) and Section 351.218(d)(iii)(2) Are Not Inconsistent with the Obligation 
Under Article 6.1 to Provide Ample Oppor tunity to Submit Written Information  
163. As to its substantive claims under Article 6, Argentina fails to demonstrate that either section 
751(c)(4) or section 351.218(d)(4)(iii) impinges on any of  the obligations it cites.  Article 6.1 states as 
follows: 
 
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. 
164. Under US sunset laws and regulations, intere sted parties in expedited sunset reviews are 
afforded “ample opportunity to present in writing  all evidence which they consider relevant.”  
Specifically, section 351.218(d)(3) of Commerce’s Suns et Regulations provides that interested parties 
will have 30 days from the notice of initiation of  the review to submit s ubstantive responses.  In 
addition to identifying information that  is required of interested parties,173 
section 351.218(d)(3)(iv)(B) of Commerce’s Sunset Regulations  provides that parties may provide 
“any other relevant information or argument that  the party would like [Commerce] to consider.”174  
Further, in section 351.218(d)(4) of Commerce’s Suns et Regulations, interested parties are afforded 
the opportunity to rebut evidence and argument submitted in other parties’ substantive responses 
within five days of their submission.175 
 
165. Moreover, in cases where Commerce determines that the response to the notice of initiation 
from the respondent interested parties is inad equate, section 351.309(e) of Commerce’s Sunset 
Regulations  affords interested parties the opportunity to comment on whether an expedited review is 
appropriate.176  Thus, US law and Commerce’s regulations expressly provide parties with 
opportunities to provide Commerce with any relevant information, to re but any relevant information 
and argument submitted by other parties, and to co mment on the appropriateness of conducting an 
expedited review in the first instance.  Thus, Commerce’s Sunset Regulations  fulfill the obligations of 
Article 6.1 by informing the interested parties of the type of information that will be required in every 
sunset review and by providing opportunities for submission of comments, rebuttal comments and any 
other information the interested party be lieves is relevant to the proceeding. 
 
166. Finally, it should be emphasized that the pr ovisions alleged by Argentina to be inconsistent 
with Article 6.1 – section 751(c)(4) and section 3 51.218(d)(2)(iii) – are provisions that govern the 
failure of a respondent interested party to particip ate in a sunset review proceeding in the first 
instance.  These provisions do not dictate the type or  amount of information that respondent interested 
parties may submit in a sunset review, but, instead,  are relevant only when a respondent interested 
                                                      
173  Commerce regulations request that interested parties submit their contact information and that of 
any legal counsel; the identification of the subject merchandise and country subject to review; the citation and 
date of the notice of initiation; an expression of their willingness to participate and provide information in the review; information and argument with respect to the likelihood of continuation or recurrence of dumping and 
the likely dumping margin; and summaries of any findings of duty absorption, scope clarifications, 
circumvention and/or changed circumstances.  In addition, from respondent interested parties, Commerce asks for the party’s individual weighted average dumping margin from the investigation and any subsequent reviews, 
the party’s value and volume of exports of subject merchandise for the five years preceding the year of the 
review’s initiation (including quarterly data for the last three years); the party’s value and volume of the party’s exports of subject merchandise for the calendar year preced ing the year of initiation of the original anti-dumping 
investigation; and the party’s percentage of total exports of subject merchandise for the five calendar years 
preceding the review’s initiation.  19 C.F.R.  § 351.218(d)(3)(ii)-(iii) (Exhibit ARG-3). 
174  19 C.F.R. § 351.218(d)(3)(iv)(B) (emphasis added) (Exhibit ARG-3). 
175  19 C.F.R. § 351.218(d)(4) (Exhibit ARG-3). 
176  19 C.F.R. § 351.309(e) (Exhibit US-3). WT/DS268/R 
Page A-128  
 
 party has not responded to the notice of initiation of  the sunset review by making the required first 
submission, the substantive response.  In other words, these provisions operate when a respondent 
interested party has chosen not to avail itself of th e Article 6.1 rights that other provisions of the 
regulations guarantee.  
 
(b) Section 751(c)(4) of the Act and Sectio n 351.218(d)(2)(iii) of Commerce’s Sunset 
Regulations Are Not Inconsistent with  Article 6.2 of the AD Agreement  
167. Article 6.2 addresses an interested party’s right  to “a full opportunity for the defence of their 
interests” and provides  in relevant part: 
 
Throughout the anti-dumping investigation all 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 intere sted parties to meet those parties with 
adverse interest, so that opposing view s may be present and rebuttal arguments 
offered. 
168. There is nothing in section 751(c)(4), section 351.218(d)(2)(iii), or any other provision of the 
US statute or regulations governing sunset reviews that precludes or impedes this opportunity.  
Indeed, as explained above, inte rested parties are given ample opportunity to submit written 
information and argument, rebut information and argument submitted by other parties, and even 
comment on the appropriateness of conducting an expedited review.   
 169. Furthermore, under Commerce’s Sunset Regulations, Commerce  “normally” will conduct an 
expedited review when the aggregate response from th e respondent interested parties is found to be 
inadequate.
177  Thus, nothing in US sunset laws or regulations would preclude Commerce from 
conducting a full sunset review, notwithstanding the lack of an adequate response from respondent 
interested parties, were the circumstances  found to warrant a full sunset review. 
 170. Regardless of whether an expedited or full re view is conducted, all interested parties are 
afforded the right to fully defend their interests.   The respondent interested party who submits a 
substantive response in an expedited sunset review is afforded the same opportunity to have its 
substantive response considered in the final likelihood determination, to rebut evidence and argument 
submitted by other parties, and to comment on the appropriateness of an expedited review.  Indeed, 
section 351.308(f)(2) of Co mmerce’s Sunset Regulations  provides that Commerce normally will 
consider the substantive submissions of the intere sted parties in making the likelihood determination 
in an expedited sunset review.  Argentina has not demonstrated that simply because Commerce 
conducts an expedited, rather than a full, suns et review, either  section 751(c)(4) or section 
351.218(d)(2)(iii) precludes respondent interested pa rties from having a full opportunity for the 
defence of their interests.
178 
                                                      
177  19 C.F.R. § 351.218(e)(1)(ii)(c)(2) (Exhibit ARG-3). 
178  Although the United States demonstrates below that all the foreign interested parties in the sunset 
review of OCTG from Argentina were afforded their full rights of defence, assuming arguendo  that this were 
not the case, it would not be enough for a Member asserting an “as such” claim to establish that, in a particular 
case, a full right of defence may have been lacking.  To find a violation “as such,” Argentina would have to 
establish that US sunset laws or regulations actually preclude the full right of defence.  See United Sates - 
Section 129(c)(1) of the Uruguay Round Agreements Act , WT/DS221/R, Report of the  Panel adopted 30 August 
2002, para. 6.22 [hereinafter “ US - Section 129 "], citing to United States - Anti-Dumping Act of 1916 , 
WT/DS136/AB/R, WT/DS162/AB/R, Report of the Appellate Body adopted 26 September 2000, paras. 88-89.  WT/DS268/R 
 Page A-129 
 
 
 B. THE PANEL SHOULD REJECT ARGENTINA ’S CLAIMS CONCERNING AN ALLEGED “IRREFUTABLE 
PRESUMPTION ” AND ITS INCONSISTENCY WITH ARTICLE 11.3  OF THE AD A GREEMENT  
171. In Section VII. B of its First Submission, Argentina includes a series of claims that are 
somewhat difficult to identify, but seem to amount to a recycled version of Argentina’s arguments in 
Section VII.A that Commerce does not conduct a “review” or make a “determination.”  As the United 
States understands this section, the claims are based on the factual assertion that Commerce has a 
practice in sunset reviews of making an irrefutabl e presumption of a likelih ood of continuation or 
recurrence of dumping.179  Based on this factual assertion, Argentina claims that:  (1) the practice and 
the instruments on which it allegedly is based are inconsistent, as such, with Article 11.3 of the AD 
Agreement;180 (2) the practice and the instruments on whic h it allegedly is based are inconsistent, as 
applied generally, with Article 11.3 of the AD Agreement;181 and (3) the Commerce determination in 
the sunset review involving OCTG from Argentina is inconsistent with Article 11.3 to the extent that 
it applied the alleged practice/presumption.182 
 
172. As the United States has demonstrated above, the Panel need not consider claim (1), because it is not within the Panel’s terms of reference.  Ne vertheless, in this section, the United States will 
respond to Argentina’s substantive arguments concerning all three claims.  As demonstrated below, 
Argentina’s claims must fail because: (1) the alle ged irrefutable presumption does not exist; (2) the 
instruments that allegedly give raise to this ir refutable presumption do not constitute challengeable 
measures for purposes of the DSU; and (3) even if the instruments we re subject to challenge, two of 
them – the Sunset Policy Bulletin  and Commerce practice – are not “mandatory” within the meaning 
of the mandatory/discretionary distinction.  
1. Argentina’s “irrefutable presumption” does not exist  
173. As noted above, all of Argentina’s claims in Section VII.B of its first submission hinge upon 
the existence of a Commerce “irrefutable presumpt ion” in sunset reviews that a continuation or 
recurrence of dumping is likely.  As the party a sserting this fact, Argentina bears the burden of 
proving it.  Argentina fails to satisfy this burden, because, in fact, the alleged irrefutable presumption 
does not exist. 
 
174. Significantly, Argentina cannot point to an y document that establishes its “irrefutable 
presumption.”  It does not allege that any US statutory provision establishes the presumption, nor could it, because there is no such provision.  Instead, it turns to three items:  the SAA, the Sunset 
Policy Bulletin , and supposed Commerce “practice.”  Let us examine each of these items in turn. 
 
175. With respect to the SAA, Argentina quotes the following passage as evidence of its alleged 
“irrefutable presumption”:
183 
 
[19 USC. § 1675a(c)] establishes standards for determining the likelihood of 
continuation or recurrence  of dumping.  Under [§ 1675(c)(1)], Commerce will 
                                                      
179  Section VII.B itself is ambiguous as to the precise source of this alleged practice. 
180  In its first submission, para. 138, Argentina asserts that:  “Taken together, the US sunset statutory 
provisions, the SAA, and the Sunset Policy Bulletin  prescribe a standard that is inconsistent with Article 11.3 of 
the Anti-Dumping Agreement.”  This appears to be an “as such” claim. 
181  In its first submission, para. 137, Argentina asserts that:  “Thus, because it is the Department’s 
consistent practice to employ in its sunset reviews an  irrefutable presumption of likely dumping, the United 
States is acting inconsistently with Article 11.3 of the Anti-Dumping Agreement.”  This appears to be an “as 
applied” claim concerning Commerce’s behaviour in sunset reviews in general, not just the review on OCTG from Argentina. 
182  See Argentina's first submission, paras. 124 and 147. 
183  Argentina's first submission, para. 142, quoting from the SAA at 889-90 (underscoring added). WT/DS268/R 
Page A-130  
 
 examine the relationship between dumping margins, or the absence of margins, and 
the volume of imports of the subject merchandise, comparing the periods before and 
after the issuance of an order or the acceptance of a suspension agreement.  For 
example , declining import volumes accompan ied by the continued existence of 
dumping margins after the issuance of an order may provide a strong indication  that, 
absent an order, dumping would be likely to continue, because the evidence would 
indicate that the exporter needs to dump to sell at pre-order volumes. 
 . . . . 
 
[E]xistence of dumping margins after the order, or the cessation of imports after the order, is highly probative
 of the likelihood of continuation or recurrence of dumping. 
176. “Irrefutable” means “[u]na ble to refute or disprove.”184  The phrases in the above-quoted 
passage like “For example,” “provide a strong indication,” and “highly probative” are not indicative 
of a presumption that cannot be refuted or disproved, assuming they give rise to a presumption at all.  
Thus, this passage from the SAA – the only passage  on which Argentina relies – cannot be the source 
of its alleged “irrefutable presumption.”  
177. Another item cited by Argentina as a potential source for its “irrefutable presumption” is the 
Sunset Policy Bulletin , from which Argentina quotes the following:
185 
 
[T]he Department normally  will determine that revocation of an anti-dumping order 
or termination of a suspended dumping investigation is likely to lead to continuation 
or recurrence of dumping where –  
(a) dumping continued at any level above de minimis  after the issuance of the 
order or the suspension agreement, as applicable; 
(b) imports of the subject merchandise ceased after issuance of the order or 
suspension agreement, as applicable; or 
(c) dumping was eliminated after the issuance of the order or the suspension 
agreement, as applicable, and import volumes for the subject merchandise 
declined significantly. 
Argentina asserts that the three criteria id entified in quoted passage are “the natural 
consequences of the imposition of an anti-dumping measure.”186  The implication is 
that because these consequences always  will follow the imposition of an anti-
dumping measure, Commerce’s consideration of them gives rise to the “irrefutable 
presumption;” i.e., because one or more of thes e consequences always will be 
present, there can be no refutation of the presumption of likelihood. 
178. There are at least two problems with this argument.  First, the quoted passage clearly states 
that Commerce “normally” will determine likelihood wh ere the described facts are present.  The use 
of “normally” is incompatible with the notion of an “ irrefutable  presumption.” 
 
                                                      
184  New Shorter Oxford English Dictionary  (1993), page 1419. 
185 Argentina's first submission, para. 145, quoting from the Sunset Policy Bulletin  at 18,872 
(underscoring added).  Note that the term “suspension agreement” used in the quoted passage is the US term for 
an “undertaking” within the meaning of Article 8 of the AD Agreement. 
186  Id., para. 146.  WT/DS268/R 
 Page A-131 
 
 
 179. Second, Argentina is wrong when it suggests that the criteria set forth in the quoted passage 
are the “natural” or only consequences of the imposition of an anti-dumping measure.  To the 
contrary, these criteria are only indicia of the c onsequences of the imposition of an anti-dumping 
measure with respect to fir ms that must dump  in order to maintain a presence in the US market.187  If 
firms have to dump to remain competitive in the US market, one would not be surprised to see 
“dumping continued at [a] level above de minimis  after the issuance of the order or the suspension 
agreement, as applicable.”  Likewise, if firms have  to dump to remain competitive in the US market, 
one might expect to find that “imports of the subj ect merchandise ceased after issuance of the order or 
suspension agreement, as applicable.”   Finally, if firms must dump to be successful in the US market, 
one likely consequence is that “dumping was eliminated after the issuance of the order or the suspension agreement, as applicable, and import  volumes for the subject merchandise declined 
significantly.” 
 
180. However, there is at least one other cons equence of the imposition of an anti-dumping 
measure that is equally “natural” – to use Argentina’ s terminology – at least for firms that are capable 
of competing fairly.  This consequence is that after the imposition of an anti-dumping measure, dumping is eliminated and import volumes for the subject merchandise remain steady or increase.  If 
this scenario should take place – and the scenario do es not seem on its face to be implausible – it 
would seem to be an indicator of no likelihood of a continuation or recurrence of dumping that 
Commerce ought to take into account. 
 181. In fact, that is precisely what Commerce in the Sunset Policy Bulletin  explains it normally 
will do:
188 
 
[T]he Department normally will determine th at revocation of an anti-dumping order 
or termination of a suspended dumping investigation is not likely to lead to 
continuation or recurrence of dumping where dumping was eliminated after issuance 
of the order or the suspension agreement, as applicable, and import volumes remained 
steady or increased. 
 Notwithstanding that this statement appears on the same page and in the same column of the 
Federal Register  as the passage quoted by Argentina, Argentina avoids any reference to it, for 
obvious reasons:  it completely undermines Argentina’s case and rather spoils Argentina’s story.  This 
passage demonstrates that the Bulletin does nothing  more than describe what Commerce “normally” 
will do when presented with different factual sc enarios.  Sometimes Commerce “normally” will 
determine likelihood, and at other times it “normally” will not.   
 
182. This is hardly evidence of an “irrefutable  presumption” of likelihood.  Moreover, Argentina 
offers no evidence – let alone demonstrates – that it is impossible in all cases for firms subject to an 
anti-dumping measure to maintain or increase their presence in the US market without dumping.  Put 
differently, Argentina offers no evidence that the only way for a firm to maintain its presence in the 
US market is to dump. 
 
183. The final piece of “evidence” offered by Argentina is its exhibit ARG-63, which purports to 
exhaustively analyze Commerce’s practice in sunset  reviews and demonstrate the existence of the 
“irrefutable presumption.”  In fact, Exhibit ARG-63 does nothing of the sort. 
 
184. What Exhibit ARG-63 actually shows is that the overwhelming majority of Commerce sunset 
reviews are uncontested by one side or the other.  Of the 291 sunset reviews discussed in Exhibit 
                                                      
187  The United States says “indicia” because as demonstrated by the use of the word “normally,” the 
criteria in the quoted passage are not dispositive. 
188  Sunset Policy Bulletin  at 18,872 (ARG-35). WT/DS268/R 
Page A-132  
 
 ARG-63, 74 were reviews in which no domestic in dustry party participated and in which Commerce 
revoked the anti-dumping order in question.
189  In addition, if one looks closely at Exhibit ARG-63, 
one finds that there were 178 cases in which respon dent interested parties chose not to participate 
either by not responding to Commerce’s notice of  initiation, submitting an affirmative waiver in 
response to the notice of initiation, or a combination of the two.190  Thus, of the 291 sunset reviews 
discussed in Exhibit ARG-63, 87 per cent of those reviews were uncontested.  Even if one limits 
oneself to the 217 reviews in which at least one domestic interested party expressed an interest, 
82 per cent of those reviews were unconte sted by respondent interested parties. 
 
185. By the US count, this leaves 35 cases (only 13 per cent) where the parties may have contested the existence of likelihood to some extent.  In these cases, Commerce found likelihood, but that fact does not establish the existence of an “irrefutable pr esumption.”  Argentina appears to assert that the 
fact that “no respondent was able to overcome th e irrefutable presumption that dumping would likely 
continue or recur estab lished by the SAA and the Sunset Policy Bulletin  criteria” proves that these 
documents do, in fact, establish such a presumption.
191  This is nothing more than circular reasoning, 
because it assumes the existence in these documen ts of an “irrefutable presumption.”  As 
demonstrated above, however, these documents do not establish an “irrefutable presumption.” 
 
186. It may well be that in these 35 cases, the evidence presented a scenario that satisfied one or 
more of the criteria that the Sunset Policy Bulletin  identifies as indicia of likelihood.  If so, the 
respondent interested parties may have been unable to demonstrate that the facts of their case called 
for a departure from the “normal” conclusion.  It coul d be the case that one or more, or maybe all, of 
these parties may have been in the situation where they were not capable of competing in the US 
market without dumping.  We simply do not know. 
 
187. However, there is one case, the record of which is before the Panel, and which speaks 
volumes about the emptiness of Argentina’s “analysis.”   That case is the Commerce sunset review of 
OCTG from Argentina and Siderca’ s response to the Commerce noti ce of initiation, which Argentina 
includes as Exhibit ARG-57 to its First Submission. 
 
188. Notwithstanding the fact that Siderca had other opportunities to submit information and 
argument, and notwithstanding Argentina’s claims of  rampant inconsistencies with Article 6, Exhibit 
ARG-57 represents the sum total of what Siderca had to say about the issue of likelihood of dumping.  
This limited statement is revealing in many ways. 
 
189. In Exhibit ARG-57, Siderca did not assert that it would not export subject merchandise to the United States if the order were revoked.  It did not even assert that it would not dump subject 
merchandise in the United States if the order were revoked.  Instead, all that it said was that:  
“Revocation of the order would not result in anti-dumping margins above de minimis .”
192 
 
190. If Exhibit ARG-57 is an example of the quality of the factual and legal submissions of 
respondent interested parties in Commerce sunset revi ews, then it is small wonder that the percentage 
of affirmative likelihood determinations is high in  those few cases where likelihood is contested.  
                                                      
189  Argentina’s self-serving and unsubstantiated assertion in footnote 131 of its first submission that 
these sunset reviews are not really “reviews” is just that: self-serving and unsubstantiated. 
190  The cases break down as follows:  (1) in 160 cases, no respondent interested party submitted a 
response to Commerce’s notice of initiation; (2) in 5 cases, respondent interested parties submitted an 
affirmative waiver of participation; and (3) in 13 cases, there was a combination of no responses and affirmative 
waivers from the respondent interested parties. 
191  Argentina's first submission, para. 129, fifth bullet. 
192  Exhibit ARG-57, page 2.  Siderca then goes on to refer to the de minimis  standard for investigations 
in Article 5.8 of the AD Agreement, a standard which does not even apply to sunset reviews under Article 11.3.  WT/DS268/R 
 Page A-133 
 
 
 Assuming arguendo  that a presumption even exists, Exhibit ARG-57 does not establish that the 
presumption is irrefutable.  Instead, it establishes that in at least one case, no serious attempt was 
made to refute it. 
 
191. The remainder of Argentina’s argument co ncerning the existence of its “irrefutable 
presumption” is nothing more than a repetition of its arguments in Section VII.A of its first 
submission concerning Commerce’ s alleged failure to conduct a “review” and “determine” 
something.193  This has nothing to do with whethe r an “irrefutable presumption” exists. 
 
192. In summary, Argentina fails to meet its burden of proof; i.e., it fails to establish the existence 
of its alleged “irrefutable presumption.”  As a resu lt, all of its claims in Section VII.B must fail. 
 
2. Assuming arguendo  that a Commerce “irrefutable p resumption” actually exists, the 
Sunset Policy Bulletin  and Commerce “practice”, as such, cannot be found to be 
inconsistent with Article 11.3 of the AD Agreement   
193. Even if one assumed arguendo  that a Commerce “irrefutable presumption” actually exists, the 
Sunset Policy Bulletin  and Commerce’s practice, as such, cannot be found to be inconsistent with 
Article 11.3 of the AD Agreement.  Neither th e Bulletin nor Commerce practice constitutes a 
“measure,” and even if they we re considered measures, neither mandates WTO-inconsistent action 
nor precludes WTO-consistent action. 
 194. For something to be a measure for purposes of the WTO, it must “constitute an instrument with a functional life of its own” – i.e., it must “ do something concrete, independently of any other 
instruments.”
194  Neither the Bulletin nor Commerce prac tice constitutes a legal instrument with a 
functional life of its own under US law.  Whatever  authority Commerce has to act comes from the 
statute and its regulations.  Neither the Bulletin nor Commerce practice authorizes Commerce to do 
anything. 
 195. With respect to the Bulletin, it has no independent legal status, but rather is comparable to 
agency precedent.  The purpose of the Bulletin is to  provide guidance with respect to sunset reviews 
and Commerce’s conduct of them, both in terms of the procedural and substantive issues that may 
arise.  However, Commerce is not bound by the Bulletin as it would be by the statute or its regulations.  Like agency precedent, Commerce may depart from the Bulletin in any particular case, so long as it explains its reasons for doing so.  
 
196. Therefore, it is not surprising that the panel in US - Japan Sunset  found that the Bulletin did 
not constitute a measure.  According to that panel:
195 
 
The Bulletin provides guidance on certain methodological issues regarding the 
applicable statutory and regulator provisions.  In our view . . . the Bulletin, in and of 
itself, does not mandate any obligatory behaviour.  On its face, the Bulletin clearly 
states that sunset reviews are to be carried out in accordance with the provisions of 
the Statute and the Regulations.  Japan has pointed to no other provision in the US 
legislation that would suggest that the Bulle tin can in fact operate independently from 
other legal instruments under US law in such  a way as to mandate a particular course 
of action. 
                                                      
193  See, e.g.,  Argentina's first submission, para. 131, in which Argentina complains about Commerce’s 
failure to use “fresh information gathered during the course of the sunset review ( i.e., a prospective analysis), as 
required by Article 11.3 of the Anti-Dumping Agreement.” 
194  Export Restraints , para. 8.85 (italics in original). 
195  US - Japan Sunset , paras. 7.125-7.126. WT/DS268/R 
Page A-134  
 
 We therefore find that the Sunset Policy Bulletin , in and of itself, is not a legal 
instrument that operates so as to mandate a course of action.  It follows that the 
Bulletin can not constitute a measure th at can be challenged in WTO dispute 
settlement proceedings. 
197. Argentina has not provided any evidence to support the notion that the Bulletin constitutes a 
measure with an independent functional life of its own.  The only piece of information Argentina has 
provided is a quote from a US court decision which states that “[t]he Sunset Policy Bulletin  parallels 
the language of the SAA.”
196  However, this statement merely in dicates that the Bulletin’s language 
parallels that of the SAA.  It says nothing about the legal status of the Bulletin. 
 198. The same principles apply with respect to Co mmerce practice.  It is well-established that 
Commerce is not bound by its own administrative practi ce, but instead may depart from it as long as it 
explains its reasons for doing so.
197  Therefore, it is not surprising that prior panels have found that 
Commerce’s administrative practice does not constitute a measure for purposes of the WTO.  As 
explained by the panel in the India Steel Plate  case:198 
 
The practice India has challenged is not, on its face, within the scope of the measures 
that may be challenged under Article 18.4 of  the AD Agreement.  In particular, we do 
not agree with the notion that the practice is an “administrative procedure” in the 
sense of Article 18.4 of the Agreement.  It is not a pre-established rule for the conduct 
of anti-dumping investigations.  Rather, ... a practice is a repeated pattern of similar responses to a set of circumstances – that is , it is the past decisions of the USDOC . . . 
.  India argues that at some point, repetition turns the practice into a “procedure”, and 
hence into a measure.  We do not agree.  That a particular response to a particular set 
of circumstances has been repeated, and may be predicted to be repeated in the future, 
does not, in our view transform it into a measure.  Such a conclusion would leave the 
question of what is a measure vague and subject to dispute itself, which we consider 
an unacceptable outcome.  Moreover, we do not consider that merely by repetition, a 
Member becomes obligated to follow its prac tice.  If a Member were obligated to 
abide by its practice, it might be possible to deem that practice a measure.  The 
United States, however, has asserted that under its governing laws, the USDOC may 
change a practice provided it explains its decision. 
 The panel in the US - Japan Sunset  case also found that “practice as such can not be 
challenged before a WTO panel.”
199 
 
199. Even if the Bulletin and Commerce’s practice could be regarded as measures, they 
nonetheless could not be considered WTO-inconsiste nt because neither “measure” is “mandatory;” 
i.e., neither requires WTO-inconsistent actio n or precludes WTO-consistent action.200  The Appellate 
Body and several panels have explained the distinction between mandatory and discretionary 
measures.  A Member may challenge, and a WTO panel may find against, a measure “as such” only if 
                                                      
196  Argentina’s first submission, para. 144, quoting from AG Dillinger Huettenwerke v. United States , 
193 F. Supp. 2d 1339 (CIT 2002) (Exhibit ARG-15a). 
197  See, e.g. , Rhodia, Inc. v. United States , 240 F. Supp. 2d 1247, 1253 (CIT 2002), in which 
Commerce’s reviewing court, the US Court of International Trade, stated as follows: “As long as Commerce 
properly explains its reasons, and its practice is reasonable and permitted by the statute, Commerce’s practice can and should continue to change and evolve.” 
198  United States – Anti-Dumping and Countervailing Measures on Steel Plate from India , 
WT/DS206/R, Report of the Panel adopted 29 July 2 002, para. 7.22 (citation omitted) [hereinafter “ US - India 
Plate ”]. 
199  US – Japan Sunset , para. 7.131. 
200  Export Restraints , paras. 8.126-8.132.   WT/DS268/R 
 Page A-135 
 
 
 the measure “mandates” action that is inconsistent w ith WTO obligations, or “precludes” action that is 
WTO-consistent.201  In accordance with the normal WTO rules on the allocation of the burden of 
proof, it is up to the complaining party to demonstrate that any challenged measure mandates WTO-
inconsistent action or precludes WTO-consistent action.202   
 
200. Argentina has not provided any evidence whatsoever that Commerce is bound by either the 
Bulletin or its administrative practice.  This is no t surprising, because, as demonstrated above, as a 
matter of US law, Commerce is not so bound.  However, if Commerce is not bound by these 
instruments, they cannot be said to mandate an y action by Commerce, let alone WTO-inconsistent 
action.  201. While Argentina does not provide any evidence about the status of the Bulletin or Commerce 
administrative practice under US law, it does cite US - Countervailing Measures  for the proposition 
that practice can be subject to WTO challenge.
203  However, Argentina’s reliance on US - 
Countervailing Measures is misplaced. 
 202. In US - Countervailing Measures , the panel’s characterization of its findings relating to 
Commerce’s “method” was not appealed, and the Appella te Body did no more than accept the panel’s 
characterization.  Moreover, at the panel stage,  this issue was also not disputed; the EC was 
challenging two Commerce privatization methodologies applied in twelve specific countervailing 
duty investigations, and the United States focused its argumentation on the substantive issues.  That 
the panel referred to these methodologies in this manner, and the Appellate Body thereafter, thus provides no guidance as to how either a panel or  the Appellate Body would answer the question of 
whether non-binding administrative precedent, or practice, can be independently challenged as a 
measure, and whether, if it could be so challenged, it mandates a breach of a particular obligation.  To 
the contrary, when panels have been faced with this question, they have uniformly concluded that US 
administrative practice cannot, as such, be challenged as a measure.
204   
 
203. And, as mentioned before, even if administra tive practice could be ch allenged as a measure, 
the Appellate Body has consistently applied the ma ndatory/discretionary distinction to find that 
measures that do not mandate a breach of an obligation do not breach that obligation.  Thus, the 
findings in US-Countervailing Measures , as discussed above, do not support Argentina’s assertion 
that either the Bulletin or Commerce practice can be challenged “as such.”205 
                                                      
201  United States - Anti-Dumping Act of 1916 (“1916 Act ”), WT/DS136/AB/R, WT/DS162/AB/R, 
Report of the Appellate Body adopted 26 September 2000, paras. 88-89; United States - Section 211 Omnibus 
Appropriations Act of 1998, WT/DS176/AB/R, Report of the Appellate Body adopted 2 February 2002, para. 
259; see also Export Restraints , paras. 8.77-8.79; US - Section 129 , para. 6.22.  
202  Brazil – Export Financing Programme for Aircraft – Second Recourse by Canada to Article 21.5 of 
the DSU , WT/DS46/RW//2, Report of the Panel, ad opted 23 August 2001, paras. 5.49-5.50. 
203  Argentina's first submission, para. 139, citing United States - Countervailing Measures Concerning 
Certain Products from the European Communities , WT/DS212/AB/R, Report of the Appellate Body adopted 8 
January 2003 [hereinafter US - Countervailing Measures ]. 
204  E.g., US - India Plate , paras. 7.22-7.24; Export Restraints , paras. 8.126, 8.129-8.130. 
205  With respect to the SAA, it is simply legislative history, albeit legislative history of an authoritative 
nature.  Under the US legal system, legislative history may be used to interpret a statute, but cannot change the 
meaning of , or override, the statute to which it relates.  As found by the panel in US Export Restraints , para. 
8.99, the SAA does not have “an operational life or status independent of the statute such that it could, on its 
own, give rise to a violation of WTO rules.  Independent of the statute, the SAA does not do anything; rather it 
interprets (i.e., informs the meaning of) the statute.”  (Italics in original).  Thus, the SAA, in principle, could be 
taken into account for purposes of determining whether the US statute  imposes the “irrefutable presumption” 
alleged by Argentina.  However, as demonstrated above, the SAA, in fact, does not contain an “irrefutable 
presumption,” nor does it require the statute to be interpreted so as to impose one. WT/DS268/R 
Page A-136  
 
 3. Assuming arguendo  that a Commerce “irrefutable p resumption” actually exists, the 
Sunset Policy Bulletin  and Commerce “practice,” as applied generally, cannot be found 
to be inconsistent with Article 11.3 of the AD Agreement  
204. In paragraph 137 of its First Submission , Argentina alleges that “because it is the 
Department’s consistent practice to employ in its sunset reviews an irrefutable presumption of likely 
dumping, the United States is acting inconsis tently with Article 11.3 of the Anti-Dumping 
Agreement.”  This appears to be a claim that Commer ce practice, as applied gene rally, is inconsistent 
with Article 11.3. 
 
205. The United States is not certain what Argentina means by this claim of “practice, as applied 
generally.”  However, it appears to be nothing more  than an attempt to get around the extensive body 
of panel reports finding that “practice as such can not be challenged before a WTO panel.”
206 
 
206. Argentina bears the burden of proof with respect to this claim.  In the view of the United 
States, Argentina has not satisfied its burden to present a prima facie  case in that it has not explained 
how a general practice can suddenly become subjec t to challenge if the label “as applied” is 
substituted for the label “as such.”  In addition, Ar gentina also has failed to demonstrate that the 
“irrefutable presumption” on which this claim is based exists. 
 
4. Commerce’s Sunset Determination in OCTG fr om Argentina was not inconsistent with 
Article 11.3 because of an “irrefutable presumption”   
207. Although most of Section VII.B of Argentina’s first submission seems to be devoted to an “as 
such” claim regarding Commerce sunset review practice, the heading to Section VII.B and the very 
last paragraph – paragraph 147 – do refer to th e Commerce sunset determination in OCTG from 
Argentina.207  According to Argentina, this determination “was inconsistent with Article 11.3 of the 
Anti-Dumping Agreement because it was based on an  irrefutable presumption under US law ... .”208 
 208. This claim must be rejected because, as demonstrated above, Argentina has failed to prove 
that there is an “irrefutable presumption” unde r US law.  In addition,  Argentina has failed to 
demonstrate that an “irrefutable presumption” was applied in the OCTG case.  To the contrary, the 
United States has already demo nstrated that the one Argentine company that responded to 
Commerce’s notice of initiation – Siderca – did not make any attempt to show that it would not dump if the order were revoked.  Instead, it merely  asserted that any dumping margins would be de minimis  
based on the standard applicable to initial anti-dumping investigations.  Thus, assuming arguendo  that 
any sort of presumption exists at all, what Siderca’s response shows is not that the presumption is 
“irrefutable,” but rather that it was “unrefuted” in the OCTG case. 
 
C. C
OMMERCE ’S SUNSET DETERMINATION IN OCTG  FROM ARGENTINA IS NOT INCONSISTENT 
WITH ARTICLES 11, 2, 6, OR 12 OF THE AD AGREEMENT  
209. In Section VII.C of its First Submission, Arge ntina essentially recycles many of its “as such” 
arguments regarding these procedures , this time in the context of the Commerce sunset determination 
in OCTG from Argentina.  As demonstrated ab ove, however, Commerce’s expedited sunset review 
procedures are not inconsistent, as such, with US  obligations under the AD Agreement.  If these 
procedures are not WTO-inconsistent “as such,” th ey do not automatically become WTO-inconsistent 
                                                      
206  US - Japan Sunset , para. 7.130. 
207  As noted in Section IV, above, Argentina’s panel request claimed an inconsistency with Article 11.3 
based on the use of an irrefutable presumption only in connection with the sunset review of OCTG from 
Argentina. 
208  Argentina's first submission, para. 147.  WT/DS268/R 
 Page A-137 
 
 
 when they are applied.  Instead, Argentina must pr ove that the manner in which these procedures were 
applied resulted in an inconsistency with one of the AD Agreement provisions that it cites.  Argentina 
fails to make such a showing.  
 
1. Commerce’s Determination to “expedite” the Sunset Review of OCTG from Argentina 
is not inconsistent with the AD Agreement  
210. Argentina’s first claim with respect to Commer ce’s application of US expedited sunset laws, 
regulations, and procedures is that “Siderca was deem ed to have waived its ri ght to participate in the 
sunset review, despite its full cooperation with” Commer ce and in violation of Articles 11 and 6 of the 
AD Agreement.209 
 
211. The facts, however, do not support Argentin a’s claim.  Most importantly, Siderca was not 
deemed to have waived its right to participate in the sunset review.  Rather, in keeping with 
section 351.218(d)(3) of Commerce’s Sunset Regulations, Commerce found that Siderca submitted a 
complete substantive response to the notice of initiation.210  Commerce also found, however, that no 
other respondent interested part y submitted a complete substantiv e response and that the “combined-
average percentage of Siderca’s exports of OCTG to the United States with respect to the total exports 
of the subject merchandise to the United St ates was significantly below 50 per cent.”211  Thus, in 
accordance with section 351.218(e)(1)(ii)(A) of Commerce’s Sunset Regulations, Commerce 
determined to expedite the sunset review of th e anti-dumping duty order on OCTG from Argentina.212  
 212. Additional evidence that Commerce did not deem  Siderca to have waived participation in the 
sunset review is Commerce’s own regulatory waiver provision.  Section 351.218(d)(2) of 
Commerce’s Sunset Regulations  (“Waiver of response by a respondent interested party to a notice of 
initiation”) reads: 
 
(i) Filing a statement of waiver.   A respondent interested party may waive 
participation in a sunset review before the Department [of Commerce] under section 
751(c)(4) of the Act by filing a statement of waiver ... . 
(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 ...  
(iii) No
 response from a  respondent interested party.  The Secretary [of 
Commerce] 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 [of 
Commerce].213 
213. As these provisions make clear, there are two methods for a respondent interested party to 
waive its right to participate in  a sunset review:  (1) submit a statement affirmatively waiving 
participation; or (2) fail to submit a substantive response to Commerce’s no tice of initiation and allow 
Commerce to deem its non-response as a waiver of its  right to participation.  Importantly, with respect 
                                                      
209  Argentina's first submission, paras. 148-155. 
210  Adequacy Memorandum, at 1-2 (Exhibit ARG-50). 
211  Id.  In fact, by its own admission, Siderca had zero exports of subject merchandise to the United 
States in the five years preceding the initiation of the sunset review of OCTG from Argentina.  See Exhibit 
ARG-57. 
212  Id. 
213  19 C.F.R. § 351.218(d)(2)(iii) (emphasis added) (Exhibit ARG-3). WT/DS268/R 
Page A-138  
 
 to the latter, Commerce’s waiver regulation provides that when a
 respondent interested party fails to 
submit a substantive response, that failure will be deemed a waiver of that respondent interested 
party’s participation in the sunset review.214  As a general matter, Commerce is bound to follow its 
own regulations.215  Consequently, Commerce would not have had the authority under its regulations 
to “deem” Siderca to have waived its right to participate in the sunset review of OCTG from 
Argentina because Siderca did not fail to file an  adequate response but, rather, filed a complete 
substantive response.216 
 
214. Argentina also claims that Commerce’s expedite d sunset review resulted in the application of 
facts available despite Siderca’s “full cooperation w ith [Commerce].”  Argentina again misstates the 
facts.  In the sunset review of OCTG from Argentina, Commerce received only one complete substantive response from a respondent interested pa rty – Siderca’s.  Thus, as to the non-responding 
respondent interested parties, Commerce was left in a position – consistent with Article 6.8 of the AD 
Agreement – to apply facts available.  Pursuant to the Sunset Regulations, Commerce used for the 
final sunset determination as the facts available all the information on the record of the sunset review 
up to that time:  (1) the findings of dumping from the original investigation; and (2) the information 
contained in the substantive responses of the intere sted parties, Siderca and the domestic interested 
parties.
217  Therefore, although Commerce used the fa cts available to make the final sunset 
determination of likelihood, Commer ce did not apply facts available to  the issue of whether there was 
a likelihood that dumping would continue or recur if  the order were revoked with respect to Siderca 
specifically, because the sunset determination is ma de on an order-wide basis, not a company-specific 
basis.218 
 
2. Commerce conducted a sunset review for the anti-dumping order of OCTG from 
Argentina and fully considered all record information in making the Final Sunset 
Determination 
215. Argentina argues that because Commerce conducted an expedited sunset review, it “did not in 
fact conduct a ‘review’ within the meaning of Artic le 11.3” of the anti-dumping duty order on OCTG 
from Argentina.219  As explained above, US laws and regulations providing for the conduct of 
expedited sunset reviews do not violate any of the provisions of the AD Agreement.  As such, their 
mere application in the instant review is not proof of an inconsistency with any provision of the AD 
                                                      
214  See 63 Fed. Reg. at 13518 (Exhibit US-3); see also SAA, at 881, discussing waiver provision in the 
statute at section 751(c )(3) (Exhibit US-11).  
215  See Oy v. United States , 61 F.3d 866, 871 (Fed. Cir. 1995) (“As a general rule, an agency is required 
to comply with its own regulations.”); Paralyzed Vete rans v. West , 138 F.3d 1434, 1436 (Fed. Cir. 1998) (“It is 
axiomatic that an agency must act in accordance with applicable statutes and its regulations.”).  The Federal 
Circuit (“Fed. Cir”) is the Court of Appeals for challenges to Commerce and ITC determinations in anti-
dumping and countervailing duty cases. 
216  Commerce’s Issues and Decision Memo states “[i]n the instant reviews, the Department did not 
receive an adequate response from respondent interested parties.  Pursuant to section 351.218(d)(2)(iii) of the 
Sunset Regulations, this constitutes a waiver of participation.”  See Sunset Decision Memorandum at 5 (Exhibit 
ARG-51). Although based on this language it may appear that Commerce deemed all respondent interested 
parties to have waived their participation in the OCTG sunset review, in fact, Commerce was only referring to 
those respondent interested parties from which it received no substantive responses.  Throughout its Issues and 
Decision Memo, Commerce summarized and responded to arguments and evidence presented by Siderca in its 
substantive response, indicating that it did not, in fact, treat Siderca as having waived its participation in the 
review.  See id.; see also 19 C.F.R. § 351.218(d)(2)(i) (stating that if a respondent interested party waives its 
right to participate, Commerce “will not accept or consider any unsolicited submissions from that party during 
the course of the review”). (Exhibit ARG-3). 
217  19 C.F.R. § 351.308(f) (Exhibit US-3). 
218  In this regard, in US - Japan Sunset , para. 8.1(e)(ii), the panel found that the analysis of likely 
dumping on an “order-wide” basis was not inconsistent with Article 11.3. 
219  Argentina's first submission, paras. 158-159.  WT/DS268/R 
 Page A-139 
 
 
 Agreement.  Commerce did conduct a “review” of the order on OCTG from Argentina within the 
meaning of Article 11.3 of the AD Agreement. 
 
216. In the sunset review of OCTG from Argent ina, Commerce received complete substantive 
responses from several domestic interested parties and from Siderca, the sole respondent interested 
party to submit a substantive response.220  No Argentine producer or exporter of OCTG, other than 
Siderca, submitted information or participated in  any fashion in the sunset review, nor did any 
respondent interested party supply information for submission in Siderca’s substantive response.221 
Based on these facts, Commerce determined that th e non-responding respondent interested parties had 
waived their rights to participate and, thus, Commerce expedited the sunset review.222 
 217. In an expedited sunset review, section 351.308(f) of the Sunset Regulations provides for the 
use of facts available for the final sunset determination.  As “facts available,” section 315.308(f) also 
provides that Commerce normally will examine the findings of dumping from the original 
investigation and any subsequent administrative reviews, and the information supplied by the 
interested parties in their substa ntive responses.  Commerce made its final likelihood determination 
using this information. 
 
218. Commerce considered both the fact that dumpin g was found in the original investigation and 
the information supplied by the interested parties, including the information supplied by Siderca in its 
substantive response.  Commerce determined that dumping continued to exist throughout the history 
of the order, that US imports of OCTG from Arge ntina had decreased signif icantly after imposition of 
the order, and that imports had remained at this depressed level since the imposition of the anti-
dumping order.
223  Commerce also addressed the only commen t made by Siderca in its substantive 
submission, which concerned the de minimis standard to be applied in a sunset review.224   
Consequently, Commerce determined that dumping was likely to continue or recur if the order were 
to expire based on the information submitted by th e interested parties in the sunset review and the 
results in the prior proceeding.225  
 
219. Similarly, as explained above, Argentina ha s failed to establish that Commerce’s conduct of 
an expedited sunset review “precluded” Commerce from being able to “determine” whether dumping 
was likely to continue or recur.  To the extent Argentina is suggesting that  section 351.308(f) limits 
Commerce’s ability to make the likelihood determination, section 351.308(f) merely provides that 
Commerce normally  will use the facts available criteria in making the likelihood determination, but 
nothing in the Sunset Regulations  or elsewhere in US law precludes Commerce from considering 
other information, even where facts available are used.226  Indeed, for example, Commerce used 
import statistics generated by Comm erce’s Census Bureau to verify the import levels of OCTG from 
                                                      
220  Final Sunset Determination , 65 Fed. Reg. at 66701 (Exhibit ARG-46). 
221  See generally , Siderca’s Substantive Response (Exhibit ARG- 57). 
222  See Adequacy Memorandum, at 2 (Exhibit ARG-50). 
223  Section 351.308(f) also provides that Commerce normally will consider dumping found in any 
administrative reviews as “facts available” when making the likelihood determination in a sunset review.  
Exhibit US-3.  In the case of OCTG from Argentina, there were no administ rative reviews of the order for the 
five-year period preceding the sunset review.  See Decision Memorandum , at 5 (Exhibit ARG-51). 
224  Decision Memorandum , at 5 (Exhibit ARG-51).  In its substantive submission, Siderca, citing to 
Article 5.8 of the AD Agreement, suggested that the  de minimis  standard of 2 per cent applicable to 
investigations  should be applied in sunset reviews.  Exhibit ARG-57, at 2.  In the Final Sunset Determination , 
Commerce explained that the de minimis standard for sunset reviews is 0.5 per cent and that the record evidence 
demonstrated that the likely margin was 1.36 per cent, above de minimis for a sunset review.  Decision 
Memorandum , at 5 (Exhibit ARG-51). 
225  Decision Memorandum , at 5 (Exhibit ARG-51). 
226  Section 351.308(f) (Exhibit US-3). WT/DS268/R 
Page A-140  
 
 Argentina for the five-year period preceding the sunset review.
227  There was no other information in 
this case, nor did any interested party supply ad ditional information for Commerce to consider in 
making the likelihood determination.  Therefore,  the mere fact that Commerce conducted an 
expedited sunset review of OCTG from Argentina doe s not result in a violation of Article 11.3 of the 
AD Agreement. 
 
3. Commerce complied with the evidentiary and procedural requirements of Article 11.3 
and Article 6 in the OCTG Sunset Review   
220. Article 11.4 of the AD Agreement establishes that for sunset reviews, the “provisions of 
Article 6 regarding evidence and procedure shall apply ... .”  Re lying on this cross-reference, 
Argentina claims that Commerce’s determination to expedite was inconsistent with Articles 6.1, 6.2, 
and 6.8, and Annex II of the AD Agreement.228  None of these articles, however, includes provisions 
that make Commerce’s determination to expedite in consistent with US WTO obligations.  In fact, 
Commerce fully complied with its Article 11.4 ob ligation in its determination to expedite. 
 221. Specifically, Commerce provided Siderca with the notice and opportunity to present evidence, argument, and rebuttal required by Articles 6.1 a nd 6.2.  In addition, Commerce did not apply “facts 
available” with respect to Siderca’s participation wh en it expedited the sunset review.  Consequently, 
insofar as its treatment of Siderca in the sunset re view proceeding is concer ned, Commerce did not act 
inconsistently with Article 6.8 or Annex II. 
 (a) Commerce Afforded Siderca the Notice and Opportunity Required by Article 6.1  
222. Article 6.1 requires that interested parties “shall be given notice of the information which the 
authorities require and ample opportunity to presen t in writing all evidence which they consider 
relevant in respect of the investigation in questio n.”  Article 6.1 thus establishes a general rule 
regarding the notice and opportunity to participate that interested parties should enjoy.  Through Commerce’s notice of initiation of the sunset revi ew and Commerce’s Sunset Regulations, Siderca 
was on notice regarding what information was required and what information Commerce considered 
relevant to its determination to conduct an expedited review.  More over, Siderca had opportunities to 
present relevant evidence on this issue, and any other relevant issue, and Siderca availed itself of at 
least one of these opportunities.  Accordingly,  Commerce complied with Article 6.1 of the AD 
Agreement.  223. On 3 July 2000, Commerce initiated the sunset review and published a notice of initiation in 
the Federal Register .
229  The notice of initiation identified the relevant statutory and regulatory 
provisions at issue, as well as the Sunset Policy Bulletin .  Moreover, the notice of initiation specified 
the information initially required from interested partie s in their notices of intent to participate, as 
described at section 351.218(d) of Commerce’s Sunset Regulations.  The notice of intent to 
participate provision requires, inter alia , that respondent interested partie s, provide “[f]or each of the 
five calendar years (or fiscal years, if more appropri ate) preceding the year of publication of the notice 
of initiation, on a volume basis (or value basis, if more appropriate), that party’s percentage of the 
total exports of subject merchandise . . . to the United States.”230 
 
224. The Sunset Regulations  make clear that the respondent intere sted parties’ percentage of total 
exports is an important factor in determining whether Commerce conducts a full or expedited sunset 
                                                      
227  Decision Memorandum , at 4-5 (Exhibit ARG-51).  In making the determination to expedite the 
sunset review, Commerce used the USITC’s Trade Database.  Adequacy Memorandum , at 2 (Exhibit ARG-50). 
228  Argentina's first submission, paras. 166-171. 
229  65 Fed. Reg. 41053 (Exhibit ARG-44). 
230  19 C.F.R. § 351.218(d)(2)(iii)(D) (Exhibit ARG-3).  WT/DS268/R 
 Page A-141 
 
 
 review.  In particular, the regulations state that Commerce “normally will conclude that respondent 
interested parties have provided adequate response to a notice of initiation where it receives complete 
substantive responses . . . from respondent intere sted parties accounting on average for more than 
50 per cent, on a volume basis (or value basis, if  appropriate), of the to tal exports of subject 
merchandise to the United States over the five calendar years preceding the year of publication of the 
notice of initiation.”231 
 
225. On notice and apprised of the information th at Commerce required for the sunset review, 
Siderca took the opportunity to present in wr iting the evidence and argument that Siderca 
(presumably) considered relevant regarding the suns et review, including information on its percentage 
of total exports.  On 2 August 2000, Siderca filed a complete and timely substantive response to the notice of initiation.
232  In that response, Siderca asserted that it was the only Argentine producer of oil 
country tubular goods, and noted that since it did not export subject merchandise to the United States 
over the preceding five years, it had no share of the total exports to the United States.233 
 
226. Siderca’s statement that it had a zero share of total US exports was supported by relevant 
trade data.234  However, record evidence indicated that there were imports of OCTG from Argentina 
during the five-year period preceding the sunset re view.  According to the ITC Trade Database, there 
were imports of the subject merchandise from Argentina in four of the five years preceding the 
publication of the notice of initiation.235  Based on this data and th e other evidence before it, 
Commerce determined that Siderca’s percentage of total exports to the United States was significantly 
below 50 per cent236 and that it was appropriate to conduct an expedited sunset review.237 
 
227. In addition to explaining its share of total exports to the United States, the substantive 
response Siderca submitted in the sunset review pr oceeding addressed only two substantive issues:   
the likelihood determination generally and the de minimis standard it believed should be applied in a 
sunset review.238  Commerce considered Siderca’s comments on these issues and took those 
comments into account when it issued the final sunset determination on OCTG from Argentina.239 
 
228. Although Siderca chose not to make any other submissions during the course of the sunset 
review beyond its 2 August 2000 substantive response, it is undisputed that Siderca had opportunities 
to do so.  During an expedited sunset review, th ere are several opportunities for participating parties 
to make written submissions.  In  addition to the substantive resp onse to the notice of initiation, 
participating parties may also file comments on Co mmerce’s initial determination of the adequacy of 
                                                      
231  19 C.F.R. § 351.218(e)(1)(ii)(A) (Exhibit ARG-3). 
232  See Siderca Substantive Response (Exhibit ARG-57). 
233  Siderca Substantive Response, at 3-4 (Exhibit ARG-57). 
234  See Adequacy Memorandum , at 2 (Exhibit ARG-50). 
235  See Adequacy Memorandum , at 2 (Exhibit ARG-50); and US Steel Group, Substantive Response, at 
12 (2 August 2000); North Star Steel Ohio, Substantive Response, at 3, Attachment 1 (2 August 2000) (Exhibit 
US-23). 
236  It should be noted that Commerce’s examination of the respondent interested parties’ percentage of 
total exports is consistent with the order-wide basis upon which Commerce conducts sunset reviews.  Namely, 
Commerce makes a likelihood determination with respect to all producers/exporters of a particular product from 
a particular country, not just those that file substantive responses to the notice of initiation.  US – Japan Sunset , 
paras. 7.207-208, rejected a claim that Commerce’s order-wide approach was inconsistent with the AD 
Agreement. 
237  See Adequacy Memorandum , at 2 (Exhibit ARG-50). 
238  Siderca Substantive Submission, at 2-3 (Exhibit ARG-57). 
239  See Decision Memorandum , at 5 (Exhibit ARG-51). WT/DS268/R 
Page A-142  
 
 the response
240 and may submit a rebuttal to any other party’s substantive response to the notice of 
initiation.241 
 
229. The fact that Siderca did not take advant age of these other opportunities, as well as 
Commerce’s consideration of Siderca’s substantive response in the sunset review, belie any notion 
that Siderca was prejudiced by the determination to expedite the sunset proceeding.  In short, Siderca 
had notice of the information Commerce considered relevant to the determination to expedite, and 
Siderca had the opportunity on several occasions to  present to Commerce whatever other information 
and argument Siderca considered relevant.  Th e text of Article 6.1 requires nothing more. 
 (b) Siderca Was Afforded An Opportunity For A Fu ll Defense of Its Interests in Accordance 
With Article 6.2  
230. Article 6.2 of the AD Agreement provides fo r the rights of interested parties to “a full 
opportunity for the defence of their interests,” and states in relevant part: 
 
Throughout the anti-dumping investigation all 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 intere sted parties to meet those parties with 
adverse interest, so that opposing view s may be present and rebuttal arguments 
offered. 
231. Argentina claims that Siderca was denied th e opportunity to fully defend its interests in 
accordance with Article 6.2, because Commerce alle gedly applied the waiver provisions to Siderca 
and deemed Siderca to have waived its righ ts to participate in the sunset review.
242  Again, as 
demonstrated above in connection with Argentina’s “as such” claim, there is simply nothing in US 
law, regulation, or procedure governing sunset review s that precludes or impedes this opportunity.  To 
the contrary, interested parties are given ampl e opportunity to submit written information and 
argument, rebut information and argument submitt ed by other parties, and to comment on the 
appropriateness of conducting an expedited review.   
 
232. Argentina makes no showing that in the OC TG sunset review, Commerce failed to act in 
accordance with US law and regulation.  Instead, the record is clear that in the OCTG sunset review, 
Siderca chose to limit its participation to a 4-page, double-spaced presentation.243 
 233. Section 351.218(e)(1)(ii)(C) and section 35 1.308(f) of Commerce’s Sunset Regulations  
provide for the use of facts available only in s ituations where interested  parties fail to provide 
information requested for Commerce’s sunset review determination.  Specifically, these provisions 
permit expedited sunset reviews on the basis of fact s available only in situations where interested 
parties’ response to Commerce’s no tice of initiation is inadequate.
244  An inadequate response is one 
that lacks required information or is simply not submitted.245  Thus, only in situations where interested 
parties fail to provide necessary information, do these provisions permit an expedited review 
determination on the basis of facts available. 
                                                      
240  19 C.F.R. § 351.309(e) (Exhibit US-3). 
241  19 C.F.R. § 351.218(d)(4) (Exhibit ARG-3). 
242  Argentina's first submission, para. 168-170. 
243  See Exhibit ARG-57. 
244  19 USC. § 1675(c)(3)(B) (Exhibit ARG-1). 
245 19 C.F.R. § 351.218(e)(1)(ii) (“[T]he Secretary norm ally will conclude that respondent interested 
parties have provided adequate response to a notice of initiation where it receives complete substantive responses ... .”) (Exhibit ARG-3); see also  19 C.F.R. § 351.218(e)(i)(I)(“[T]he Secretary normally will conclude 
that domestic interested parties have provided adequate response . . . where it receives a complete substantive 
response ... .”) (Exhibit ARG-3).  WT/DS268/R 
 Page A-143 
 
 
 Argentina attempts to confuse the issue by referring to Commerce’s adequacy test (the so-called 
“50 per cent threshold” test) provided in s ection 351.218(e)(1)(ii)(A) of Commerce’s Sunset 
Regulations.246  Section 351.218(e)(1)(ii)(A) provides that an adequate response from respondent 
interested parties exists if Commerce receives substantive responses from “respondent interested 
parties accounting on average for more than 50 per cent, on a volume basis (or value basis, if 
appropriate), of the total exports of subject merchandise to the United States over the five calendar 
years preceding the year of publication of the notice of initiation.”247  Argentina argues that 
section 351.218(e)(1)(ii)(A) has the effect of requiring  an expedited sunset review and, in turn, the use 
of facts available in this case where Siderca did not fail to submit necessary information in violation 
of Article 6.8.248 
 235. Argentina misinterprets section 351.218(e)(1)( ii)(A) of Commerce’s Sunset Regulations.  The 
section is not a provision requiring the use of facts available.  Rather, it serv es a ministerial function 
of allowing Commerce to decide when the conduct of an expedited review is appropriate when the 
number of respondent interested parties who provide a substantive response to the notice of initiation 
is inadequate.
249  An “adequate” number of responses is normally required, because Commerce makes 
its likelihood determinati on on an order-wide basis.250  As such, Commerce must decide on an 
aggregate basis whether the response from respondent interested parties, as a group, is adequate to 
warrant a full sunset review.  A determination that  the aggregate response from respondent interested 
parties is inadequate and, thus, th at a expedited review is warranted,  is not a determination that an 
individual respondent interested party, who supplie d a complete substantive response, would be likely 
to resume or continue dumping if the order were revoked.   
236. In fact, Commerce regulations provide that, wh en resorting to facts available in an expedited 
sunset review, Commerce should “normally” rely on dumping margins from prior determinations and 
“information contained in parties’ substantive re sponses to the Notice of Initiation filed under § 
351.218(d)(3).”
251  Section 351.218(d)(3) of Commerce’s Sunset Regulations  provide for the 
submission of information from both domestic and re spondent interested parties.  In other words, in 
using facts available in an expedited sunset review, Commerce does not  disregard information 
submitted by respondent interested parties who may have responded to the notice of initiation, but 
who did not in the aggregate account for 50 per cent or more of subject exports.  To the contrary, 
Commerce considers this information as part of  the facts available in making its likelihood 
determination.  This approach is in accordance with  the obligations contained in Article 6.8 of the AD 
Agreement. 
 
237. In the sunset review of OCTG from Argentina, as discussed above, Siderca filed a complete substantive response to the notice of initiation.  In  its substantive response, Siderca only raised two 
issues.  As previously noted, Siderca’s entire subs tantive response was a mere four pages of double-
spaced text.
252  Siderca did not file any additional informa tion on its own behalf or on behalf of the 
Argentine exporters of OCTG, as allowed by s ection 351.218(d)(3)(iv) of Commerce’s Sunset 
Regulations.  In addition, Siderca did not file any comments on Commerce’s decision to expedite the 
                                                      
246  Argentina's first submission, para.170. 
247   19 C.F.R. § 351.218(e)(2)(ii) (Exhibit ARG-3). 
248  Argentina's first submission, para. 170. 
249   The sunset statute provides that when interested parties’ response to the notice of initiation is 
inadequate, Commerce may conduct an expedited sunset review.  The statute does not specify what to do in the 
event that some, but not all, interested party responses  to initiation are inadequate.  Thus, Commerce, in its role as the administering authority, determined that for respondent interested parties a response from such parties 
accounting for 50 per cent or more of subject imports would be deemed an adequate response.  See 19 USC. § 
1675(c)(3)(B) (Exhibit ARG-1); 19 C.F.R. § 351.218(e)(1)(ii)(A) (Exhibit ARG-3). 
250   See Sunset Policy Bulletin, 63 Fed. Reg. at 18872 (Exhibit ARG-35). 
251   19 C.F.R. § 351.308(f)(2) (Exhibit US-3). 
252  See Exhibit ARG-57. WT/DS268/R 
Page A-144  
 
 sunset review, as allowed by section 351.309(e) of Commerce’s Sunset Regulations.  In sum, 
Argentina’s claims that Siderca did not have an ad equate opportunity to defend its interests because 
the sunset review was expedited in this case ring ho llow, because Siderca did not avail itself of the 
opportunities made available by the Sunset Regulations  for such defence in an expedited sunset 
review. 
 
3. Commerce’s Final Sunset Determination in OC TG from Argentina is not inconsistent 
with the obligation contained in Article 12 of the AD Agreement  
238. Argentina claims that Commerce’s Final Sunset Determination  and the accompanying 
Decision Memorandum  in OCTG from Argentina are inconsis tent with provisions of Article 12 
because these documents allegedly fail to provide public notice and an adequate explanation of the 
decisions made in the sunset review.
253  Specifically, Argentina claims that the Final Sunset 
Determination and the Decision Memorandum  are inconsistent with Article  12.2 because they fail to 
adequately explain the bases for Co mmerce’s likelihood determination.254  In addition, Argentina 
claims that these documents are inconsistent with Article 12.2.2 because they do not contain all relevant factual informa tion necessary to make th e likelihood determination.
255  As discussed below, 
Argentina mischaracterizes Commerce’s factual and le gal conclusions.  In addition, with regard to 
Argentina’s claim under Article 12.2.2, Argentina is attempting to use that provision as a vehicle for 
creating substantive standards for sunset reviews that simply cannot be found in the text of 
Article 11.3. 
 239. Article 12 establishes the “investigating authorities’ obligations relating to public notice and explanation of determinations throughout an investigation.”
256  Through Article 12.3, the provisions 
of Article 12 apply “ mutatis mutandis  to the initiation and completion of reviews pursuant to 
Article 11 ... .”  
 
240. Argentina’s first claim under Article 12 is th at because Argentina is unable to discern from 
the Final Sunset Determination  and the accompanying Decision Memorandum “the actual basis for 
the Department’s affirmative likelihood determ ination,” Commerce acted inconsistently with 
Article 12.2.257  Article 12.2 requires public notice of any determinations made in a sunset review and 
mandates that “[e]ach such notice shall set forth, or otherwise make available through a separate 
report, in sufficient detail the findings and conc lusions reached on all issues of fact and law 
considered material by the investigating authorities.”  
241. However, as discussed in detail above, Commerce did provide notice and detailed 
explanations of its determinations in the Final Sunset Determination , the Decision Memorandum , and 
the Adequacy Memorandum , all of which were publicly available.   Nonetheless, Argentina claims that 
it cannot discern the precise US statutory provision – section 751(c)(4) or section 751(c)(3)(B) – upon 
which Commerce’s final affirmative sunset determina tion was based.  In addition, Argentina alleges 
that these US statutory provisions are somehow “mut ually exclusive” and, thus, cannot both serve as a 
basis for the Final Sunset Determination  in OCTG from Argentina. 
 
242. Here, Argentina simply continues to misstate the facts of the OCTG sunset review and the 
meaning of US law.  First, the cited statutory provisions are not mutually exclusive in their 
application as alleged by Ar gentina.  On the contrary, as explained above, they work in conjunction in 
cases where a respondent interested party ch oose to waive participation in the Commerce-
                                                     
 
253  Argentina's first submission, para. 172-174. 
254  Argentina's first submission, para. 178. 
255  Argentina's first submission, para. 179-180. 
256  US – Japan Sunset , para. 7.30. 
257  Argentina's first submission, para. 178.  WT/DS268/R 
 Page A-145 
 
 
 administered portion of the sunset review proceeding.  Section 751(c)(4) provides for a respondent  
interested party to elect waiver of participation,  while section 751(c)(3)(B) provides for the use of 
facts available where the aggregate response from respondent interested parties is inadequate.  A 
determination that the aggregate response to the notic e of initiation is inadequate can be based on the 
respondent interested parties electing waiver, or  failing to respond, or in providing inadequate 
substantive responses, or on any combination of these scenarios.258 
 
243. Second, as a matter of fact and of law, Siderca did not waive its right to participate in the 
sunset review nor did Commerce find that Siderca had done so.  Argentina repeatedly attempts to 
confuse the issue by alternatively referring to Siderca and Argentina as the respondent interested party 
when addressing the waiver issue.  The Final Sunset Determination , the Decision Memorandum , and 
the Adequacy Memorandum , however, each clearly state that Siderca filed a complete substantive 
response.259  Commerce’s Adequacy Memorandum and the Decision Memorandum also make clear 
that Commerce’s decision to expedite the review was based on the failure of Argentine 
producers/exporters of OCTG, other than Siderca, to respond to the notice of initiation.260  
Consequently, Commerce determined to expedite th e sunset review and to use facts available in 
making the final sunset determination because the Arti cle 11.3 likelihood determ ination is made on an 
order-wide basis and Siderca represented zero exports to the United States of OCTG during the five-
year period preceding the sunset review. 
 
244. Finally, as the Final Sunset Determination and the Decision Memorandum clearly explain, 
Commerce used, as fact available in accordance with section 351.308(f) of Commerce’s Sunset 
Regulations, margins from the original investigat ion and the information submitted in the sunset 
review, including the information submitted by Side rca, as the bases for the affirmative likelihood 
determination.261  The Decision Memorandum explains that Commerce found dumping throughout the 
history of the OCTG order and that the existence of dumping margins after imposition of the duty is 
highly probative of the likelihood of dumping in the absence of the duty.262  In addition, Commerce 
found that import volumes had decreased and re mained depressed since the order was issued, 
indicating that the Argentine producers/exporters of OCTG may have had to dump to maintain market 
share.263 
 
245. In light of these facts and in the absence of any rebuttal evidence fr om respondent interested 
parties – including Siderca – Commerce made an affirmative likelihood determination because it 
determined that the Argentine producers/exporters c ould not sell OCTG in the United States without 
dumping if the order were to be revoked.  Alth ough Argentina may disagree with the outcome, the 
Final Sunset Determination and the accompanying Decision Memorandum clearly explain the bases 
for Commerce’s final affirmative lik elihood determination and nothing in  Article 12.2 requires more.  
Consequently, Commerce’s Final Sunset Determination and the accompanying Decision 
Memorandum  fulfil the obligations to provide public notice under Article 12.2. 
 
246. In addition to its public notice claim under Article 12.2, Argentina claims that Article 12.2.2 
requires that “fresh information” be gathered and that a dumping margin be calculated in accordance 
                                                      
258  Argentina’s own study of Commerce sunset reviews shows that these scenarios can exist in 
combination.  For example, on page 1 of Exhibit ARG-63, the data for Case 7 (bearings from France) shows that there were affirmative waivers of participation from some respondent interested parties, combined with no 
responses from others. 
259  Final Sunset Determination , 65 Fed. Reg. at 66701 (Exhibit ARG-46); Decision Memorandum , at 3 
(Exhibit ARG-51); and  Adequacy Memorandum , at 1 (Exhibit ARG-50). 
260  Decision Memorandum , at 3 (Exhibit ARG-51); and Adequacy Memorandum , at 2 (Exhibit ARG-
50). 
261  Decision Memorandum , at 4-5 (Exhibit ARG-51). 
262  Decision Memorandum , at 5 (Exhibit ARG-51). 
263  Decision Memorandum , at 5 (Exhibit ARG-51). WT/DS268/R 
Page A-146  
 
 with Article 2.1 of the AD Ag reement in a sunset review.
264  Argentina is wrong, because Article 
12.2.2 does not impose any such substantive obligations. 
 
247. Article 12.2.2 is a notice and report provision that requires an authority to provide 
explanations regarding matters of fact and law, the reasons or bases for any de terminations, as well as 
the reasons for the acceptance and rejection of argume nts and claims made in the proceeding.  Article 
12.2.2 does not contain substantive obligations for the conduct of, or for the methodologies to be 
used, in a sunset review.  Nothing in Article 12 ge nerally or Article 12.2.2 specifically contains any 
substantive provisions regarding the methodologie s or analysis to be employed in making the 
determination of whether dumping and injury  is likely to continue or recur.   
 248. In the past, attempts to read substantive obligat ions into Article 11.3 on the basis of unrelated 
requirements in Article 12 have been rejected.
265  The Panel should similarly reject Argentina’s 
attempt to do so here. 
 
D. COMMERCE ’S ANALYSIS OF DUMPING IN THE CONTEXT OF THE LIKELIHOOD AND “MARGIN 
LIKELY TO PREVAIL ” DETERMINATIONS IN THE SUNSET REVIEW ON OCTG  FROM ARGENTINA 
WERE NOT INCONSISTENT WITH ARTICLE 11.3  OF THE AD A GREEMENT  
249. Argentina claims that in the sunset review on OCTG from Argentina, Commerce was 
obligated, under Articles 2, 6, and 11.3 of the AD Agreement, to calculate and base its likelihood 
determination on a current and future amount of dumping.266  As demonstrated below, Argentina is 
wrong.   
1. Article 11.3 does not require a quantification of dumping or the use of any particular 
methodology for making the likelihood determination  
250. Customary rules of interpretation of public international law dictate that the words of a treaty 
form the starting point for the process of interpreta tion.  The text of Article 11.3 provides that a 
definitive anti-dumping duty must be terminated afte r five years unless the authorities determine that 
“the expiry of the duty would be likely to lead to continuation or recurrence of  dumping and injury.”   
The focus of a sunset review under Article 11.3 is on future behaviour; i.e., whether dumping and 
injury are likely to continue or recur in the event of expiry of the duty, not whether or to what extent 
dumping or injury currently exists.  Thus, neither the precise amount of dumping in any one year, nor the precise amount of likely future dumping, is of  central significance to the results of the review; 
indeed, such precision is certainly not required.
267  
 
251. Under Article 11.3, authorities are required to  determine whether continuation or recurrence 
of dumping is likely.  Article 11.3 does not, however, set forth a methodology to be used in 
performing this likelihood analysis.  Nor does Article 11.3 require quantification of past or future 
amounts of dumping.  This is reinforced by note 22  of Article 11.3, which pr ovides that “[w]hen the 
                                                      
264  Argentina's first submission, para. 179, 180. 
265  US - German Steel , para. 112 (finding that Article 22.1, the provision in the SCM Agreement 
corresponding to Article 12.1 of the AD Agreement, does not establish evidentiary standards applicable to the initiation of sunset reviews); and US - Japan Sunset , para. 7.33 (Article 12.1 does not establish evidentiary 
standards applicable to the initiation of sunset reviews). 
266  Argentina's first submission, paras. 181-196. 
267  See, e.g., United States - Anti-Dumping Duty on Dynamic Random Access Semiconductors 
(DRAMS) of One Megabit or Above from Korea , WT/DS99/R, Report of the Panel adopted 19 March 1999, 
para. 6.43 [hereinafter Korea – DRAMS ] (discussing prospective analysis, albeit in the context of a different 
type of review).  Although there is no requirement to quantify the amount of dumping likely to continue or 
recur, as discussed below, the United States does so under its domestic law.  Commerce transmits this 
information to the ITC.  WT/DS268/R 
 Page A-147 
 
 
 amount of the anti-dumping duty is determined on a retrospective basis, a finding in the most recent 
assessment proceeding ... that no duty is to be levied shall not by itself require the authorities to 
terminate the definitive duty.”  No specific amount of du mping – even the most current – is decisive 
as to whether dumping is likely to continue or recur.   
 
252. Argentina claims that the rules of Article 2 apply in their entirety to sunset reviews conducted 
under Article 11.3 because Article 11.3 requires a determination whether "dumping" is likely.268  
While correct that the term "dumping" appear s in both Article 2 and Article 11.3, Argentina 
incorrectly ascribes all of the obligations containe d in Article 2 to sunset reviews under Article 11.3. 
 253. As its heading indicates, Article 2 sets fo rth obligations concerning the “Determination of 
Dumping.”  Within Article 2, Article 2.1 provides the general definition that a product is considered 
to be “dumped” where the export price of that product is less than the comparable price in the 
comparison market.  The remaining provisions of Ar ticle 2 set forth, in significant detail, how the 
margin of dumping, i.e. the amount of dumping, is to be calculated. 
 254. Article 11.3 requires that an authority determ ine whether “expiry of the duty would be likely 
to lead to continuation or recurrence of dumping ... .”  In other words, Article 11.3 requires a 
determination whether dumping is likely to recur – dumping, as defined by Article 2.1, meaning 
generally that the export price of a product is less than the normal value of that product.  Article 11.3 
does not require a determination that a particular  amount of dumping is likely to continue or recur in 
the future, i.e., if and when the duty is terminated – for the very reason that it would be impossible to 
make such a determination. 
 
255. A determination of dumping consiste nt with the Article 2 rules requires, inter alia , that actual 
amounts of prices, costs, and profit be used in the proscribed calculation methodology.  In a sunset 
review, an authority is considering what will happen in  the future.  It is self-evident that there are no 
values for prices, costs, and profits that have not yet occurred.  Argentina’s claim, that the 
requirements of Article 2 literally apply in a sunset  review under Article 11.3, fails for this very 
reason. 
 
256. This is not to say that Article 2 has no implications or application in Article 11.3 sunset 
reviews.  As previously noted, Article 2.1 provid es that, for the purposes of the AD Agreement, a 
product is considered to be “dumped” where the export price of that product is less than the 
comparable price in the comparison market.  Article 2, therefore, provides the general meaning of the 
term “dumping” as it is used throughout the AD Agre ement, including in Article 11.3.  The panel in 
US – Japan Sunset  reached this same conclusion.
269 
 
257. In the instant review, Commerce considered evidence that dumping continued over the life of 
the order and that import volumes declined significantl y after the imposition of th at order.  As a result, 
Commerce found that dumping was likely to contin ue or recur in the futu re if the order were 
terminated.  Nothing more is required under Article 11.3. 
                                                      
268  Argentina's first submission, paras. 182, 183. 
269   US – Japan Sunset , para. 7.168 (“We thus do not believe that the substantive disciplines in 
Article 2 governing the calculation of dumping margins in making a determination of dumping apply in making 
a determination of likelihood of continuation or recurrence of  dumping under Article 11.3.”).  In so stating, the 
panel was drawing the distinction between the obligation to calculate a margin of dumping in accordance with the methodologies proscribed by Article 2 – i.e. to determine the magnitude
 of the margin of dumping – and the 
obligation in a sunset review under Article 11.3 to make a determination of the likelihood that “dumping” – i.e., 
the mere existence  of dumping – would be likely to continue or recur if the duty were to expire. WT/DS268/R 
Page A-148  
 
 2. The margins determined in Commerce’s orig inal investigation, and the methodologies 
used to derive them, cannot be challenged before this Panel  
258. Argentina maintains that the margin calculations in the investigation, which were considered 
by Commerce in making its sunset determinations, were performed in a manner that was inconsistent 
with WTO requirements, particularly  the requirements of Article 2.  Those specific margins and the 
methodologies used to derive them, however, cannot now be challenged before this Panel. 
 
259. Article 18.3 of the AD Agreement provides that “the provisions of this Agreement shall apply 
to investigations, and reviews of existing measures, initiated pursuant to applic ations which have been 
made on or after the date of entry into force for a Member of the WTO Agreement.”  The AD 
Agreement thus applies only to investigations that  were based on US dumping petitions filed after 
1 January 1995, the date of entry into force of the WTO Agreement with respect to the United States.  
The anti-dumping investigation in this case was initiated on the basis of a petition filed prior to 
1 January 1995.  Thus, the specific margins calculat ed by Commerce in the original investigation, and 
the calculation methodologies used to derive them, cannot be challenged before this Panel.    260. An analogous situation was presented in Korea DRAMs .  In that case, the United States 
maintained that a WTO dispute arising out of the fina l results of the third administrative review of the 
order did not provide an appropriate forum in whic h to challenge a product scope determination made 
during the original investigation.  The United States pointed out that (1) the product scope 
determination had been made in an investigation pr ior to the creation of the WTO and the entry into 
force of the AD Agreement, and (2) product scope  issues were not revisited during the third 
administrative review.  The United States asserted, therefore, that claims regarding product scope 
were inadmissible un der Article 18.3 of the AD Agreement.  Th e panel agreed with the United States, 
finding that the AD Agreement applies only to those parts of a pre-WTO measure that “are included 
in the scope of a post-WTO review.”
270  In the instant case, the specific amounts of the original 
dumping margins were not revisited in the sunset review.  Consequently, those margins, and the 
methodologies used to derive them, cannot be challenged before this Panel.  3. Commerce fully complied with its obligations under the AD Agreement in making the 
affirmative likelihood determination  
261. Argentina claims that Commerce’s likelihood determination was not based on “positive 
evidence” and that, as a result, Commerce’s sunset review proceeding on OCTG from Argentina violated Article 6 obligations regarding evidence and procedure.
271  As discussed above, Argentina’s 
Article 6 claims relating to Siderc a’s participation in the sunset re view are based on an incorrect 
factual premise, because Commerce found that Siderca had filed a complete substantive response and 
did not find that Siderca had waived its rights to participate in the sunset review.  In addition, 
Commerce afforded Siderca and the other Argentine producers/exporters opportunities to supply 
whatever comment, argument, or information they wished in defence of their interests in the sunset 
review of OCTG from Argentina in accordance  with sections 351.218(d)(3)(ii)(G) and 
351.218(d)(3)(iv)(B) of Commerce’s Sunset Regulations.272 
 
262. Indeed, Commerce’s sunset qu estionnaire explicitly requests th at interested parties, which 
would include Siderca and the Argentine OCTG exporters, provide “[a] statement regarding the likely 
                                                      
270  Korea DRAMs , para. 6.14.    
271  Argentina's first submission, para. 187. 
272   19 C.F.R. § 351.218(d)(3)(ii)(G) (interested party is required  to provide, in its substantive response, 
factual information, argument, and reason concerning the dumping margin likely to prevail for that party if the 
order is revoked); 19 C.F.R. § 351.218(d)(3)(iv)(B) (provides for submission of “any other relevant information 
that the party would like [Commerce] to consider.”) (Exhibit ARG-3).  WT/DS268/R 
 Page A-149 
 
 
 effects of revocation of the order . . . , which must include any factual information, argument, and 
reason to support such statement.”273  Commerce requested information from Siderca and the 
Argentine exporters and the fact that Siderca failed to answer the questions in a more thorough 
manner is not an error that can be ascribed to Commerce.  
 
263. As detailed above, Commerce considered the margins from the original investigation and the 
information submitted by the interested parties in the sunset review proceeding.  Commerce 
reasonably found that the existence of dumping margins and depressed import volumes since the 
imposition of the duty indicated that it was likely that dumping of OCTG from Argentina would 
continue or recur if the order were revoked.274   There is no indication that the quality of the evidence 
considered for the final sunset determination was compromised in any way.  Thus, Commerce’s examination of whether revocation of the order would be likely to lead to the continuation or 
recurrence of dumping was based on credible and undisputed evidence, and the sunset review 
proceeding in OCTG from Argentina complied wi th the obligation contained in Article 6. 
 
264. Argentina makes a series of unsupported and unsubstantiated clai ms that Commerce’s  
affirmative likelihood determination in the OCTG suns et review violated Articles 2 , 6 and 11.3 of the 
AD agreement.
275  First, Argentina claims that Commerce cannot rely on “5 year old data from an 
original investigation” because a likelihood determ ination under Article 11.3 requires  “fresh” data 
indicating the likelihood of future dumping.276  Argentina does not explain what “fresh” data need be 
collected or how this information may be indicative of future dumping.  Indeed, nothing in Article 11.3 dictates the information that an author ity must gather, or the methodologies that it must 
employ, to determine the likelihood of continuation or recurrence of dumping. 
 
265. Argentina also overlooks the fact that Co mmerce based its likelihood determination on 
evidence concerning import volumes over the life of the order and the information supplied by the 
interested parties, in addition to the dumping margin s found in the original investigation.   Moreover, 
“current information” is not the issue in a suns et review conducted pursuant to Article 11.3.
277  Rather, 
the issue under Article 11.3 is whether dumping and in jury are likely to continue or recur in the event 
of the expiry of the duty, an inherently forward-looking inquiry. 
 
266. Argentina also claims that the evidence supporting an affirmative likelihood determination 
made under Article 11.3 must indicate  that dumping in the future is “probable,” not just “possible.”278  
In this regard, Argentina appears to claim that Commerce’s likelihood determination is not supported 
by evidence demonstrating that there is a probabilit y that dumping will continue or recur if the order 
were revoked.  In its written submission to this Panel, Argentina does not explain how Commerce’s likelihood determination fails to meet this “standard.”
279  Nevertheless, as explained above, 
Commerce found that the existence of dumping marg ins over the life of the order and the depressed 
import volumes since the imposition of the duty were highly probative of the future behaviour of 
Argentine exporters of OCTG.280  Nothing submitted by the interested parties nor any other 
information on the record of the sunset review of OCTG from Argentina contradicts these findings. 
                                                      
273  19 C.F.R. § 351.218(d)(3)(ii)(F) (Exhibit ARG-3).  
274  Decision Memorandum , at 4-5 (Exhibit ARG-51). 
275  Argentina's first submission, paras. 182-188. 
276  Argentina's first submission, para. 184. 
277  See footnote 22, Article 11.3 of the AD Agreement, stating that “a finding in the most recent 
assessment proceeding . . . that no duty is to be levied shall not by itself require the authorities to terminate the 
definitive duty.” 
278  Argentina's first submission, para. 186. 
279  See Argentina's first submission, paras. 182 and 187. 
280  Decision Memorandum , at 5 (Exhibit ARG-51). WT/DS268/R 
Page A-150  
 
 4. There is no obligation under Article 11.3 of th e AD Agreement to calculate or consider a 
margin likely to prevail upon expiry of the duty  
267. Under US law, Commerce is required to determine whether the expiry of the duty is likely to 
lead to continuation or recurrence of dumping.   If Commerce’s likelihood determination is 
affirmative, it must report to the ITC the magnitude of the margin likely to prevail.
281  In making the 
sunset injury determination, the ITC “may cons ider the magnitude of th e margin of dumping.”282  The 
fact that Commerce reports a margin to the ITC is  a construct of US law, however, and not an 
obligation imposed by the AD Agreement. 
 
268. Argentina maintains that, pursuant to Article 2 and Article 11.3, as applied in the instant case, 
the margins reported to the ITC as the rates of du mping likely to prevail in  the event of revocation 
were improperly identified by Commerce.283  Argentina is wrong, because there simply is no 
obligation under the AD Agreement to consider the magnitude of the margin likely to prevail in 
determining likelihood of continuation or recurrence of injury in a sunset review under Article 11.3.  
For this reason, the Panel should not and need not consider Argentina’s arguments concerning the manner in which Commerce identified the margins that it reported to the ITC. 
 
E. T
HE PANEL SHOULD REJECT ARGENTINA ’S CLAIM UNDER ARTICLE X:3( A) OF GATT  1994   
269. Having failed to demonstrate that US law and the application of that law are contrary to the 
AD Agreement, in Section VII.E of its First Submissi on, Argentina attempts to recycle its claims one 
last time by turning to Article X:3(a) of the GATT 1994.  Argentina seems to allege that even if the 
Panel finds that none of the “measures” identified by Argentina are inconsistent – either as such or as 
applied – with any of the provisions of the AD Agre ement cited by Argentina, the Panel nonetheless 
should find that these “measures” are inconsistent with the Article X:3(a) requirement that certain 
laws, regulations, judicial decisions and administrative rulings of general application be administered 
in a uniform, impartial,  and reasonable manner. 
 270. At the outset, the United States reiterates that  this claim is not within the Panel’s terms of 
reference.  In Section A.4 of Argentina’s panel requ est, the claim under Article  X:3(a) is made with 
respect to the specific Commerce sunset determin ation in OCTG from Argentina.  Nevertheless, 
Argentina fails to demonstrate that Commerce has not administered US sunset review laws and 
regulations in a uniform, impa rtial and reasonable manner. 
 271. Focusing on the ordinary meaning of Article X:3(a)’s terms, “uniform” is defined as “[o]f one 
unchanging form, character, or kind; that is or stays the same in different places or circumstances, or 
at different times.”
284  Interpreting the same provision in a challenge to Argentin a’s administration of 
its customs laws, a panel explained that the term “uniform” means that the  
 
laws should not vary, that every exporter and importer should be able to expect 
treatment of the same kind, in the same ma nner both over time and in different places 
and with respect to other persons.  Unif orm administration requires that Members 
ensure that their laws are applied consistently and predictably ... . This is a 
requirement of uniform administration of .. . laws and procedures between individual 
                                                      
281  Section 752(c)(3) (Exhibit ARG-1). 
282  Section 752(a)(6) (Exhibit ARG-1). 
283  Argentina's first submission, paras. 189-193. 
284  New Shorter Oxford English Dictionary  3488 (1993).  WT/DS268/R 
 Page A-151 
 
 
 shippers and even with respect to the same person at different times and different 
places.285  
272. “Impartial” means “[n]ot partial; not favour ing one party or side more than another; 
unprejudiced, unbiased; fair.”286  Treatment in an unbiased and fair manner is distinguishable from 
identical treatment.  For example, the panel in US – Japan Sunset  rejected Japan’s contention that 
requiring foreign producers/exporters to provide  more information than domestic produces in 
Commerce’s sunset review resulted in the pa rtial administration of US sunset laws.287  The panel 
explained that because “foreign exporters will be the main source of information regarding dumping, 
or likelihood of continuation or recurrence of du mping,” the quantity of information required from 
foreign exporters will necessarily differ.288 
 
273. “Reasonable” means “[i]n accordance with reason; not irrational or absurd.”289  In 
Argentina – Bovine Hides , the panel found the administration of Argentine customs law unreasonable 
because there was “no reason” for allowing Argentinean hide buyers  to see documents containing 
their customers’ business confidential information.290 
 274. Taken together the terms of Article X:3(a) re quire, that in administer ing US sunset review 
laws and regulations, Commerce must act in a manner th at is consistent, unbiased and not irrational or 
absurd.  As to the first of these requirements, one of Argentina’s principal claims is that the various 
“measures” alleged by Argentina “establish an irrefutable presumption, as demonstrated by 
[Commerce’s] consistent practice, that  is inconsistent with Article 11.3.”
291  Needless to say, it strains 
logic to understand how Argentina can sustain a clai m that Commerce has violated Article X:3(a)’s 
demand for consistent application of sunset review laws and regulations when, at the same time, 
Argentina complains about Commerce’s “consistent practice.” 
 
275. With respect to the requirements for an impa rtial and reasonable administration of US sunset 
laws and regulations, Argentina has provided no evid ence of bias or that Commerce has administered 
US laws and regulations in an irrational or absu rd manner.  As demonstrated above, Argentina’s 
“irrefutable presumption” does not exist, and a de construction of Argentina’s “analysis” of 291 
Commerce sunset reviews shows that in 87 per cent of the cases, the issue of likelihood of dumping 
simply was not contested.  In the 13 per cent of the cases where likelihood was contested, Argentina 
provides no evidence – let alone proves – that those cases were decided in an impartial or unreasonable manner.  
                                                     
 
285  Argentina – Measures Affecting the Export of Bovine Hides and the Import of Finished Leather , 
WT/DS155/R, Report of the Panel adopted 16 February 2001, para. 11.83 [hereinafter “ Argentina - Bovine 
Hides ”]. 
286  New Shorter Oxford English Dictionary  1318 (1993). 
287  US – Japan Sunset , para. 7.306. 
288  Id; see also Argentina – Bovine Hides Panel Report , paras 11.99-.101 (finding that in providing 
private parties access to confidential business information of parties with conflicting commercial interests 
constituted a partial administration of Argentine customs laws). 
289  New Shorter Oxford English Dictionary  2496 (1993). 
290  Argentina – Bovine Hides , paras. 11.87, 11.91-.92. 
291  Argentina's first submission, para. 194. WT/DS268/R 
Page A-152  
 
 F. T
HE ITC  APPLIED THE CORRECT STANDARD FOR DETERMINING WHETHER TERMINATION OF 
THE ANTI -DUMPING DUTY ORDER WOULD BE LIKELY TO LEAD TO CONTINUATION OR 
RECURRENCE OF INJURY , AND THE ITC’ S DETERMINATION OF LIKELIHOOD IN THE SUNSET 
REVIEW OF OCTG  FROM ARGENTINA WAS CONSISTENT WITH ARTICLE 11. 3 AND 
ARTICLE  3.1 OF THE AD AGREEMENT  
276. Argentina argues that the ITC’s application of the standard for determining whether 
revocation of the anti-dumping order would be likely to lead to continuation or recurrence of injury 
was inconsistent with AD Agreem ent Article 11.3 because the IT C failed to apply the ordinary 
meaning of the term “likely.”  Arge ntina’s argument that the ITC misinterpreted the word “likely” in 
Article 11.3 rests on two premises: first, that “lik ely” can only mean probable; and second, that the 
ITC disregarded this meaning and interp reted “likely” to mean “possible.”292  Neither of these 
premises is correct.  Argentina also asserts, inco rrectly, that the SAA directs the ITC to apply a 
standard that is inconsistent with Article 11.3. 
 
277. Before turning to the interpretation of the word “likely” itself, it is worth recalling the fundamental nature of the inquiry called for by a sunset review.  The determination of whether revocation of an order "would be likely to lead to" continuation or recurrence of injury is an 
inherently predictive inquiry.   In this respect, as the Appellate Body has already recognized in the 
context of countervailing duty proceedings, a suns et review is fundamentally different from an 
original investigation:
293 
 
We further observe that original investigations and sunset reviews are distinct processes with different purposes. The nature of the determination to be made in a 
sunset review differs in certa in essential respects from the nature of the determination 
to be made in an original investigation.  For example, in a sunset review, the 
authorities are called upon to focus their in quiry on what would happen if an existing 
countervailing duty were to be removed.   In contrast, in an original investigation, the 
authorities must investigate the existence, de gree and effect of any alleged subsidy in 
order to determine whether a subsidy exists and whether such subsidy is causing 
injury to the domestic industry so as to warrant imposition of a countervailing duty. 
278. The panel in US – Japan Sunset  also explained:
294 
 
[O]riginal investigations and sunset revi ews are distinct processes with different 
purposes, and that the text of the Anti-Dumping  Agreement distinguishes between 
investigations and reviews.  We base our view on several elements, not least that 
under the text of the Anti-Dumping Agreement,  the nature of the determination to be 
made in a sunset review differs in certain fundamental respects from the nature of the 
determination to be made in an original investigation.   
279. Thus, a sunset review – whether of a countervailing duty or anti-dumping duty order – 
necessarily involves less certainty and precision than would be attainable in an  original investigation 
based on a retrospective analysis.295  For example, in an original anti-dumping investigation, 
authorities examine the current condition of an indus try without the benefit of an order in place to 
                                                      
292  Argentina’s submission is confusing on this point.  In some places it asserts that the ITC used a 
standard based on injury being “possible.”  Argentina's first submission, paras. 213, 214, 215, and 222.  
Elsewhere, Argentina refers to the ITC’s application of a standard that “falls in between ‘probable’ and 
‘possible’ on a continuum of relative certainty.”  Argentina's first submission, paras. 211 and 221.  
293  US – German Steel , para. 87. 
294  US – Japan Sunset , para. 7.8. 
295  See US  – Japan Sunset , para. 7.178.  WT/DS268/R 
 Page A-153 
 
 
 determine whether dumped imports are causing, or th reatening to cause, material injury.  In an 
original investigation, the condition of the industry is determined, inter alia , on the basis of existing 
evidence quantifying the domestic industry's sales,  profits, output, operating income, market share, 
productivity, return on investment, capacity utilization, inventories and employment rates. 
 
280. In a sunset review, on the other hand, authorities, in deciding whether to revoke the order, 
examine the likely volume of imports in the future that have been restrained by the discipline of the 
order and the likely impact in the future of that volume on a domestic indus try that has enjoyed the 
benefit of an anti-dumping order for the past five years.  Because of the presence of the order, it may 
be the case that at the time of a sunset review, du mped imports have ceased and the domestic industry 
is no longer experiencing, or being threatened with, material injury.  In a sunset review, the investigating authority does not have the benefit of existing evidence regarding the future state of the 
domestic industry.  Rather, in a sunset review , the investigating authority must engage in 
counterfactual analysis to determine whether a prospective change in the status quo –  i.e., revocation 
of the order – would be likely to lead to continuation  or recurrence of injury.  Thus, a determination of 
likelihood inherently involves less certainty and exactn ess than in an original investigation. “In light 
of the fundamental qualitative differences in the nature of these two distinct processes,   . . . it [is] not 
. . . surprising . . . that the textual obligations pe rtaining to each of the two processes may differ.”
296 
 
281. In the sunset review on OCTG, the ITC applied the standard set out in both Article 11.3 and 
US law.  Specifically, the ITC determined whethe r revocation of the anti-dumping and countervailing 
duty orders would be likely to lead to continuation or recurrence of material injury to an industry in 
the United States within a reasonably foreseeable time.297  As an aid to determining whether 
revocation would be likely to lead to continuation or recurrence of injury, the US statute requires the 
ITC to consider, inter alia , “the likely volume, price effect, and impact of imports of the subject 
merchandise on the industry if the order is revoked ... .”298   In this case, the ITC examined each of 
these factors.  For example, with respect to likely volume, the ITC found that the significant increases 
in import volume during the original investigation, substantial excess capacity in several of the subject 
countries, and a strong incentive on the part of producers in several of the subject countries to 
establish a significant presence in  the large, relatively higher-priced US market, among other things, 
supported the conclusion that “in the absence of the orders, the likely volume of cumulated subject 
imports, both in absolute terms and as a share of the US market, would be significant.”299  In other 
words, the text of the ITC analysis shows that it ex pected injury to recur if the anti-dumping orders 
were to be revoked.  The ITC did not find merely that injury was possible.  Thus it is clear that the 
ITC properly applied the standard se t out in Article 11.3.  There is nothing in the determination to 
indicate that the ITC applied any standard other than the Article 11.3 standard.  
282. This brings us back to the meaning of the word “likely.”  Argentina’s claim that the ITC 
applied the wrong standard in its sunset review in  the OCTG case is based on Argentina’s assertion 
that the term “likely” must be interpreted to me an “probable.”  Article 11.3 does not use the word 
“probable.”  It refers to “likely,” which is the term used in the US statute and the term used by the 
ITC.  It is incorrect to conclude that “likely” can only mean “probable.”  Dictionaries define “likely” 
in various ways.
300  Thus seeking a synonym for “likely” as Argentina does would not advance the 
understanding of that term. 
                                                      
296  US – Japan Sunset , para. 7.8. 
297  ITC Report at 1. 
298  19 USC. §1675a(a) (Exhibit ARG-1). 
299  ITC Report at 20. 
300  See, e.g. , Ballentine’s Law Dictionary  (3d ed. 1969) (“likely” is “not more than ‘probable’ and 
sometimes less than ‘probable’ depending upon the context,” “the word ‘likely’ is used in the sense of 
sometimes more than possible, and less than probable”) (Exhibit US-13); The Random House Dictionary of the 
English Language  (1966) (likely means “seeming to fulfil requ irements or expectations”) (Exhibit US-14); The WT/DS268/R 
Page A-154  
 
  
283. It is true that the US Court of Internationa l Trade, in interpreting “likely” under US law, has 
found “probable” to be a synonym for “likely.”
301  However, contrary to Argentina’s suggestion that 
“probable” entails a higher degree of certainty than  employed by the ITC, the Court has stated that it 
“has not interpreted ‘likely’ to imply any degree of certainty.”302  Therefore, on remand from the 
Court to apply the “likely” standard consistent with  the Court’s articulation, the ITC’s determinations 
did not change.303  Moreover, the one ITC remand determination reviewed by the Court on this 
question was affirmed.304 
 
284. Argentina is also incorrect in arguing that , based on guidance from the SAA, the ITC applies 
a standard in which any determination – af firmative or negative – is permissible.305  The SAA simply 
recognizes the inherently predictive nature of the inquiry involved in a sunset review, explaining that 
“[t]here may be more than one  likely outcome foll owing revocation.”306  The SAA explains further 
that 
 
[t]he possibility of other likely outcomes does not mean that a determination that 
revocation . . . is likely to lead to continuation or recurrence of . . . injury . . . is 
erroneous, as long as the determination of likelihood of continuation or recurrence is 
reasonable in light of the facts of the case.307 
285. The SAA thus does nothing more than explain that the “likely” standard in sunset reviews 
does not mean that a continuation or recurrence of injury must be inevitable.  The SAA simply recognizes that there may be more than one possible outcome when projecting into the future.  Contrary to Argentina’s assertion, the SAA does no t direct the ITC to apply a standard that is 
inconsistent with Article 11.3.  Moreover, the ITC has never interpre ted “likely” to mean “possible.” 
 
286. For the foregoing reasons, the ITC applied the correct standard for determining whether 
termination of the anti-dumping duty orders at i ssue would be likely to lead to continuation or 
recurrence of injury, and the ITC’s determination wa s otherwise consistent with Article 11. 3 of the 
AD Agreement. 
 
G. A
RTICLE 3 DOES NOT APPLY TO SUNSET REVIEWS  
287. Argentina asserts that Article 3 of the AD Ag reement applies in its entirety to sunset reviews 
conducted under Article 11.3.308  Argentina also claims that in its sunset review in the OCTG case, the 
ITC acted inconsistently  with specific paragraphs of Article 3.   
 
288. This series of claims by Argentina is premised on the notion that Article 3 does, in fact, apply 
to sunset reviews under Article 11.3.  In this secti on, the United States explains why this fundamental 
                                                                                                                                                                     
American Heritage Dictionary of the English Language  (3rd ed.) (likely means “[w]ithin the realm of credibility; 
plausible”) (Exhibit US-15); Webster’s Third New Int’l  Dictionary of the English Language  (1981) 
(unabridged) (likely means “having a better chance of occurring than not”) (Exhibit US-16). 
301  Usinor Industeel v. United States , Slip Op. 02-70, at 43-44 (CIT 19 July 2002) 
(Exhibit US-17). 
302  Usinor Industeel v. United States , Slip Op. 02-152 at 6 (CIT 20 December 2002) 
(Exhibit US-18). 
303  Usinor Remand Determination  at 14 (USITC July 2002) (Exhibit US-19). 
304  Usinor Industeel v. United States , Slip Op. 02-152 at 24 (20 December 2002) (US-18). 
305  Argentina's first submission, para. 215. 
306  SAA at 883 (emphasis added) (Exhibit US-11). 
307  Id. 
308  Argentina's first submission, para. 234.  WT/DS268/R 
 Page A-155 
 
 
 premise is wrong, and that Article 3 does not apply to sunset reviews.  In subsequent sections, the 
United States will address Argentina’s claims c oncerning specific para graphs of Article 3. 
 
289. The inapplicability of Article 3 to sunset reviews under Article 11.3 is clear based on an 
analysis of the text of these treaty provisions.  Fi rst, Article 3 addresses a “determination of injury,” 
whereas Article 11.3 calls for a determination of “recurrence of injury.”  The nature of the two 
determinations are entirely different, as explained below.309  Moreover, there are no cross-references 
in Article 3 to Article 11, or in Article 11 to Article 3. 
 
290. Argentina relies on footnote 9 to Article 3 to  support its position that Article 3 applies to 
sunset reviews.310  The language of footnote 9 proves just the opposite.  Footnote 9 states: 
 
Under this Agreement the term "injury" shall,  unless otherwise spec ified, be taken to 
mean material injury to a domestic industry, threat of material injury to a domestic 
industry or material retardation of the esta blishment of such an industry and shall be 
interpreted in accordance with th e provisions of this Article. 
291. The text of footnote 9 to Article 3 existed in its present form in the Tokyo Round Anti-
Dumping Code prior to the adoption of the Article 11.3 provision for sunset reviews at the conclusion 
of the Uruguay Round, with the only exception that the prior text referred to the “Code,” whereas 
footnote 9 refers to the “Agreement.”311  Further, footnote 9, like its precursor in the Anti-Dumping 
Code, is simply a drafting device that avoids unne cessary repetitions of the principle that actionable 
injury can take any of three distinct forms:  present injury, threat of material injury,  or material retardation of the establishment of an industry. 
 
292. It is clear that (i) “material injury,” (ii) “threa t of material injury,” (iii) “material retardation of 
the establishment of a domestic industry,” and (iv) the likelihood of “continuation or recurrence of . . . 
injury” are each separate conditions , with separate elements, some of which are specified in the AD 
Agreement and some of which are implied.  The drafters of the AD Agreement had the option of 
including the “likelihood of continuation or recurrence of injury” condition in footnote 9, but chose 
not to do so. 
 
293. Applying the definition of “injury” in foot note 9 to the determination of “recurrence of 
injury” in Article 11.3 – as Argen tina would have it – would lead to absurd results.  It would mean 
that the inquiry in a sunset review would become wh ether expiry of the duty would be likely to lead to 
continuation or recurrence of   material injury to a domestic industry, threat of material injury to a 
domestic industry or material retardation of the establishment  of such an industry .  Article 11.3 does 
not contemplate determinations of a continuation or recurrence of threat or material retardation as a 
basis for continuing to apply an anti-dumping duty after a sunset review. 
 
294. Another textual indication that footnote 9 do es not apply to sunset reviews is the phrase 
“unless otherwise specified” in the footnote.  Article 11.3 does
 specify otherwise:  it states that in a 
sunset review investigating authorities are to dete rmine the likelihood of a continuation or recurrence 
of injury, rather than engage in a “determination of injury” within the meaning of footnote 9 to 
Article 3. 
 
                                                      
309  Cf. US – Japan Sunset , para. 7.167 (stating that there is a “substantial difference” between the 
reference in Article 11.3 to a determination of likelihood of continuation or recurrence of dumping and the reference in Article 2 to a determination of dumping).   
310  Argentina's first submission, para. 234. 
311  In the AD Code, the footnote was footnote 2 to Article 3. WT/DS268/R 
Page A-156  
 
 295. In addition, footnote 9 is attached to the heading of Article 3, which is “Determination of 
Injury,” and Article 3.1 speaks of – presumably – th e same “injury” as a “determination of injury for 
purposes of Article VI of GATT 1994.”  Article VI  of GATT 1994 does not mention sunset reviews, 
thereby further reinforcing the conclusion that footnote 9 does not apply to sunset reviews. 
 
296. The inapplicability of Article 3 to sunset reviews under Article 11.3 is further underscored by 
the absence of any cross-references in Article 11.3 to  Article 3.  The existenc e of cross-references in 
paragraphs 4 and 5 of Article 11 to  other articles of the AD Agreem ent indicate that the drafters 
would have been explicit had they intended to make the disciplines of Article 3 applicable to sunset 
reviews.
312 
 297. The fact that Article 3 does not apply to sunset  reviews is clear not only from the text of the 
AD Agreement, but also in view of the nature of a sunset review.  As mentioned previously, the focus 
of a review under Article 11.3 differs from that of an original investigation under Article 3.  As the 
Appellate Body observed in the context of su nset reviews under the SCM Agreement:  “original 
investigations and sunset reviews are distinct processes with different purposes.”
313  The difference 
between the nature and practicalities of  the inquiry in an original investigation and of the inquiry in a 
sunset review demonstrate that the tests for each cannot be identical. 
 
298. In an original investigation, the investigati ng authorities examine the current condition of an 
industry that has been exposed to the effects of unrestrained, dumped imports that are competing 
without remedial measures in place.  In doing so , the authorities must examine the volume, price 
effects and impact of the unrestrained imports on a domestic industry that may be indicative of 
present injury or threat of material injury. 
 
299. Five years later, in an Article 11.3 sunset review, the investigating authorities must determine 
whether “expiry of the duty would be likely to lead to continuation or recurrence of . . . injury.”  
Under US law, the ITC examines the likely  volume of imports in the future that have been restrained 
for the last five years by the anti-dumping duty order, the likely  price effects in the future of such 
imports, and the likely  impact of the imports in the future  on the domestic industry that has been 
operating in a market where the remedial order has been in place. 
 
300. As a result of the order, dumped imports may have decreased or exited the market altogether 
or, if they have maintained their presence in the ma rket, they may be priced higher than they were 
during the original investigation,  when they were entering the market unencumbered by any 
additional duties.  With the presence  of the order, it would not be surprising that no injury or causal 
link presently exist, a fact recognized by the sta ndard of “continuation or recurrence of injury.” 
 
301. Thus, the inquiry contemplated pursuant to Article 11.3 is counterfactual in nature, and entails 
the application of a decidedly different analysis with  respect to the volume, price and impact.  Indeed, 
there may no longer be either any subject imports or  material injury once an anti-dumping order has 
been in effect for five years.  The authority must then decide the likely impact of a prospective change 
in the status quo; i.e., the revocation of the anti-dumping du ty order and the elimination of its 
restraining effects on volumes and prices of imports .  The differences in the nature and practicalities 
                                                      
312  Cf. US – Japan Sunset , Panel Report para. 7.166 (stating that the existence of cross-references in 
Articles 11.4 and 11.5 to other articles of the AD Agreement, and the absence of such a cross-reference in 
Article 11.3 to Article 2, indicates that the disciplines of Article 2 are not applicable to sunset reviews); and US - 
German Steel , para. 69 (stating that the existence of cross-references in the SCM Agreement suggests that when 
the negotiators of the Agreement intended the disciplines of one provision to apply to another, they expressly 
provided for such application). 
313  US - German Steel , para. 87.  WT/DS268/R 
 Page A-157 
 
 
 of the inquiry in an original investigation and in a sunset review demonstrate that the requirements for 
the two inquiries cannot be identical. 
 
302. Although Article 3 does not apply to sunset re views, the United States recognizes that some 
of the provisions of Article 3 may provide guidance as to the type of information that may be relevant 
to the examination in a sunset review of whether material injury is likely to continue or recur.314   
 
H. THE PANEL SHOULD REJECT ARGENTINA ’S CLAIMS UNDER ARTICLE 3.1 OF THE 
AD A GREEMENT  
303. In Section VIII.B of its First Submission, Argent ina claims that in its sunset review of OCTG 
from Argentina, the ITC failed to conduct an “ objective examination” and failed to base its 
determination on “positive evidence” as required by Article 3.1 of the AD Agreement.  The Panel 
should reject Argentina’s claims, because:  (1) Article 3.1 does not apply to sunset review under 
Article 11.3; and (2) assuming arguendo  that Article 3.1 does apply to sunset reviews, the ITC did not 
act inconsistently with Article 3.1.  
1. Article 3.1 does not apply to sunset reviews  
304. Argentina claims concerning Ar ticle 3.1 are premised on the notion that Article 3.1 applies to 
sunset reviews.  Article 3.1 provides as follows: 
 
A determination of injury for purposes of Article VI of the GAT T 1994 shall be based 
on positive evidence and involve an objec tive examination of both (a) the volume of 
dumped imports and the effect of dumped imports on prices in the domestic market 
for like products, and (b) the consequent impact of these imports on domestic 
producers of such products.  
305. As explained above, the provisions of Article 3 are not applicable to sunset reviews.  In 
addition to the reasons given above, there are furthe r textual indications in Article 3.1 as to why it 
specifically is not applicable to s unset reviews.  In a sunset review, authorities are required to evaluate 
the likelihood in the future of a continuation or recu rrence of injury if the dumping order is lifted.  
Imports may not even be present in the market at the time of the sunset review, and they may not be 
sold at dumped prices.  How then can investigati ng authorities comply with Article 3.1 and examine 
“the volume of dumped imports and the effect of dumped imports on prices?”  It is apparent that the requirements of Article 3.1 do not apply to sunset  reviews because the dictates of Article 3.1 are 
potentially incompatible with the nature  of the inquiry in a sunset review. 
 306. The panel and Appellate Body reports that Argentina relies on are either not relevant or not 
conclusive on the question of whether Article 3.1 applies to sunset reviews.  Argentina quotes the Appellate Body report in Thai Angles  to the effect that “the obligations in Article 3.1 apply to all 
injury determinations undertaken by Members.”
315  Argentina takes this statement out of context, 
however.  Thai Angles  did not involve a sunset review, and thus the applicability of Article 3 to 
Article 11.3 was not before the Ap pellate Body.  The fact that Artic le 3.1 applies to all “injury” 
determinations does not mean that it also app lies to all “continuation or recurrence of injury” 
determinations.  
                                                     
 
314  Cf. US – Japan Sunset , paras. 7.174 and 7.176 (stating that, although Article 2 does not apply to 
sunset reviews, it “provides guidance” as to, or “may inform,” the type of information that may be relevant to a sunset review examination of the presence or absence of dumping since imposition of the order). 
315  Argentina's first submission, para. 234, quoting from Thai Angles (AB) , para. 114 (emphasis added 
by Argentina). WT/DS268/R 
Page A-158  
 
 307. Argentina relies also on US - Japan Sunset , but as Argentina itself acknowledges, the panel 
made no definite finding in that report concerning the applicability of the provisions of Article 3 to 
sunset reviews under Article 11.3.
316  Finally, Argentina relies on the Appellate Body report in Hot- 
Rolled Steel from Japan.317  This report discusses the relevan ce of Article 3.1 to  the more detailed 
obligations in the rest of Article 3, and it elabor ates on the meaning of the terms “positive evidence” 
and “objective examination,” but it does not address th e question of the applicability of the provisions 
of Article 3 to Article 11 (nor coul d it as the dispute did not involve a sunset review).  There is no 
merit to Argentina’s suggestion that any of the cited WTO reports supports the applicability of 
Article 3 disciplines to sunset reviews. 
 
2. The ITC’s Sunset Determination was consistent with Article 3.1, because it was based on 
a proper establishment of the relevant facts,  an unbiased and objective evaluation of 
those facts, and positive evidence  
308. The United States recognizes that an authority’s establishment of the facts in a sunset review 
must be “proper,” that the evaluation of those facts must be “unbiased and objective,”318 and that the 
determination of whether expiry of the duty would be likely to lead to con tinuation or recurrence of 
injury should be based on positive evidence.319 
 
309. Argentina argues that the ITC failed to conduc t an "objective examination" based on "positive 
evidence” in accordance with Article 3.1.  As explained above, Article 3.1 does not apply to sunset 
reviews.  Nonetheless, the ITC’s sunset determin ation was based on a proper establishment of the 
relevant facts and an unbiased and objective evalua tion of those facts, was ba sed on positive evidence, 
and, accordingly, effectively satisfies the requirements  of Article 3.1, were that provision applicable.  
 
310. The Appellate Body has explained that an objective examination is one that is made in “an 
unbiased manner, without favouring the interests of any interested party, or group of interested 
parties”320  and that "positive evidence" relates to the "qua lity of the evidence" such that it must be "of 
an affirmative, objective and verifiable character, and that it must be credible."321   As discussed 
below, the ITC carefully reviewed an extensive array of factors and evidence relative to the likely 
volume, price effect and impact of dumped imports on the domestic industry.  Argentina has failed to 
show that the ITC’s determination wa s biased in favour of any intere sted party or that the quality of 
the evidence considered was compromised in any way.322 
 311. Indeed, the Argentine respondent’s arguments before the ITC in the sunset proceeding did not 
involve claims of bias or any flaw in the quality of existing evidence.  That the ITC may have 
attributed a different weight or meaning to record  evidence than the Argentine respondent would have 
preferred, does not go to whether the ITC conduc ted an "objective" examination based on "positive" 
evidence.
323 
 
                                                      
316  Argentina's first submission, paras. 235 and 239. 
317  Argentina's first submission, paras 234 and 237, discussing US - Hot-Rolled Steel .  
318  AD Agreement, Article 17.6(i). 
319  US – Japan Sunset , para. 7.177. 
320  US – Hot-Rolled Steel , para. 193; EC – Pipe Fittings , para. 132. 
321  US – Hot-Rolled Steel , para. 192; EC – Pipe Fittings , para. 132. 
322  Indeed, the ITC made a negative likelihood determination with respect to drill pipe, resulting in the 
partial revocation of the anti-dumping duty order on OCTG from Argentina. 
323  Cf. EC – Pipe Fittings , para. 128 (stating, in the context of whether the panel made an “objective” 
and “unbiased” review pursuant to AD Agreement Article 17.6(i), that it is “not sufficient for [the complaining party] simply to disagree with the Panel’s weighing of the evidence” and that a panel does not err in declining 
“to accord the evidence the weight that one of the parties sought to have accorded to it”) (internal quotations and 
footnotes omitted).   WT/DS268/R 
 Page A-159 
 
 
 312. Argentina’s claims with regard to the likely volume of imports, likely price effects of imports, 
and likely adverse impact of imports are discussed in turn below. 
 
(a) The ITC’s Findings on the Likely Volume of Imports  
313. Argentina challenges the ITC’s finding that the volume of imports of OCTG casing and 
tubing would be likely to increase significantly in  the event of revocation of the order.  Before 
addressing Argentina’s specific argu ments, it may be useful to review the basis for the ITC’s finding. 
 
314. The ITC first reviewed its findings as to the volume of imports in its original injury 
determination.  In that determination, the ITC fo und that the rate of increase in the volume of 
cumulated subject imports was far greater than the overall increase in consumption between 1992 and 
1994.  The ITC also found that the market share of subject imports by both volume and value rose 
significantly, nearly doubling from 1992 to 1994, an d that domestic producers' market share declined 
substantially. 
 315. The ITC noted that after the anti-dumping dut y orders went into effect, subject imports 
decreased, but remained a factor in the US market.  The ITC found that while current import volume 
and market share of subject imports was substantiall y below the levels of the original investigation, 
current levels likely reflected the re straining effects of the orders.  
 
316. The ITC considered foreign producers’ operatio ns not just with respect to OCTG casing and 
tubing, but with respect to all pipe and tube products produced on the same machinery and equipment as casing and tubing.
324  It did so because it had found that pipe and tube producers in the subject 
countries produced a variety of other tubular produc ts in addition to OCTG (such as standard, line, 
and pressure pipe, mechanical tubing, pressure tubing, and structural pipe and tubing) on the same 
equipment in the same production facilities.  These producers thus could easily shift production away 
from other tubular products toward production of OCTG and vice versa.  Argentina does not 
challenge this finding.  The ITC also found that of all the tubular products that could be produced in these facilities, OCTG commanded am ong the highest prices in the ma rket, and producers thus had an 
incentive to make as much OCTG as possible in relation to other products.
325  Again, Argentina does 
not challenge this finding. 
 317. The ITC found there to be substantial available capacity in the subject countries for increasing exports of casing and tubing to the United States. 
 
318. With respect to producers in Japan, the ITC noted that in the original investigations, the 
import volume, market share, and production capac ity of casing and tubing from Japan were the 
largest of the subject countries.  During the origin al investigation, Japanese producers had reported 
excess capacity.  Only one of the four Japanese producers identified in the original investigation 
participated in the sunset review.  (The ITC noted that another of the four original producers, Nippon, 
may have closed its OCTG plant).  The particip ating producer, NKK, apparent ly represented a lesser 
share of total Japanese production.  The ITC note d the reported capacity of  NKK, and taking into 
account the fact that other Japanese producers chose not to provide the ITC with data, concluded that 
there was significant available capac ity among other Japanese producers.
326 
 
319. With respect to producers in Korea, the ITC to ok note of their unused capacity and compared 
it in size to total US consumption.327 
                                                      
324  ITC Report at 17. 
325  ITC Report at 16. 
326  ITC Report at 18. 
327  ITC Report at 19. WT/DS268/R 
Page A-160  
 
  
320. With respect to producers in the other subject countries (Argentina, Italy and Mexico), the 
ITC recognized that their “recent ... capacity utilization rates represent a potentially important 
constraint on the ability of these subject producers to increase shipments of casing and tubing to the 
United States.”
328 
 
321. Despite the apparently high capacity utiliza tion rates of producers in Argentina, Italy and 
Mexico, the ITC found that these producers, and th e producers in Japan an d Korea, would have 
incentives to devote more of their productive ca pacity to producing and shipping more casing and 
tubing to the US market, for the following reasons.  322. First, the ITC found that the alliance of five foreign producers known as Tenaris
329 would be 
likely to have a strong incentive to expand its presence  in the United States if th e orders were revoked.  
The ITC’s analysis of this issue is worth quoting in full:330 
 
Tenaris is the dominant supplier of OCTG pr oducts and related services to all of the 
world’s major oil and gas drilling regions except the United States.  Tenaris states 
that it is the only entity that can serve o il and gas companies on a global basis, and 
that it seeks worldwide contracts with such companies.  Many of Tenaris’ existing 
customers are global oil and gas companies with operations in the United States.124   
While the Tenaris companies seek to down play the importance of the US market 
relative to the rest of the world, they ack nowledge that it is the largest market for 
seamless casing and tubing in the world.  Given Tenaris’ global focus, it likely would 
have a strong incentive to have a significant presence in the US market, including the 
supply of its global customers’ OCTG requirements in the US market.126  
______________ 
 
 124  Tenaris argues that the global oil and gas companies with which it has business outside the 
United States represent only 12-14 per cent of  US oil and gas rigs.  TAMSA Posthearing Br. 
Exhibit 3.  The domestic industry asserts that  these firms have a substantially greater US 
presence.  Domestic Producers’ Prehearing Br. at 46.  We find that these global companies 
have a significant US presence using either estimate. 
 
 126  As described above, we do not find that Tenari s’ preference to sell directly to end users as 
opposed to distributors is likely to limit sign ificantly its participation in the US market. 
 
323. The second reason that the ITC found that the subject producers would have an incentive to 
devote more of their capacity to shipping casing and tubing to the US market is that casing and tubing 
were among the highest valued pipe and tube  products, generating among the highest profit 
margins.331  The third factor (related to the second) that the ITC relied on is that prices for casing and 
tubing on the world market were significantly  lower than prices in the United States.332 
 
                                                      
328  ITC Report at 19. 
329  The members of Tenaris are: Siderca in Argentina, Dalmine in Italy, TAMSA in Mexico, NKK in 
Japan, and Algoma in Canada.  The ITC found that the Tenaris companies operate as a unit, submitting a single bid for contracts to supply OCTG products and related services; and that Tenaris’ customer base includes large 
multi-national oil and gas companies, many of which have operations in the United States.  ITC Report at 16.
  
330  ITC Report at 19. 
331  ITC Report at 19. 
332  ITC Report at 19-20.  WT/DS268/R 
 Page A-161 
 
 
 324. Fourth, the ITC found that subject country pr oducers also faced import barriers in other 
countries, or on related products.  The ITC noted that: (i) Argentine, Japanese, and Mexican producers 
were subject to anti-dumping duty orders in the Un ited States on seamless standard, line, and pressure 
pipe (which are produced in the same production f acilities as OCTG); (ii) Korean producers were 
subject to import quotas on welded line pipe shipped to the United States and US anti-dumping duty 
orders on circular, welded, non-alloy steel pipes; and (iii) Canada imposed an anti-dumping duty of 
67 per cent on casing from Korea.333   
 
325. The fifth reason that the ITC found that the subject producers would have an incentive to 
devote more of their capacity to shipping casing an d tubing to the US market is that industries in at 
least some of the subject countries were heavily export-dependent.  The ITC noted that Japan and 
Korea in particular had very small home markets and depended nearly exclusively on exports.334 
 
326. Argentina argues that the ITC’s analysis of the likely volume of imports is flawed in three 
respects.  None of Argentina’s arguments stand up to scrutiny. 
 327. First, Argentina argues that there was no evidence that Tenaris could re-orient to the United 
States production that was co mmitted under existing contracts.
335  The record in the OCTG sunset 
review, however, plainly supports the ITC's find ing.  As an initial matter, the ITC found – and 
Argentina does not dispute – that "Tenaris is the dominant supplier of OCTG products and related 
services to all  of the world's major oil and gas dr illing regions except the United States ."336  As the 
only major market not already dominated by Tenaris,  the United States represented the best growth 
opportunity for the Tenaris producers.  Given that th e United States was by far the largest market for 
OCTG,337 Tenaris had a strong incentive to increase its share of the US market.338 
 
328. Tenaris's current contracts with its customers also supported this conclusion.  Tenaris 
described itself as the only entity that could serve oi l and gas companies on a global basis, and stated 
that it sought worldwide contracts with such companies.339  In fact, the Tenaris producers already had 
contracts with global oil and gas companies that covered all operations outside the United States.340  
Tenaris's own desire for worldwide contracts with its existing customers – which could be satisfied 
only by contracts that covered the world's larg est market for OCTG – constituted a very strong 
incentive to increase US shipments.341  While Argentina claims that the ability of the subject 
                                                      
333  ITC Report at 20. 
334  ITC Report at 20. 
335  Argentina's first submission, para. 244. 
336  ITC Report at 19 (emphasis added). 
337  Id.   The director of one of the largest distributors of OCTG in the United States testified at the ITC 
hearing that: "[t]he United States is half the world for the purposes of OCTG and I can guarantee you that none 
of these producers has overlooked that fact."  Transcript of US International Trade Commission Hearing (8 May 2001) ("Hearing Tr.") at 55 (Mr. Stewar t, Hunting Vinson)  (Exhibit US-20). 
338  The chief executive officer of one of the world’s largest distributors of OCTG stated at the ITC 
hearing: "I know that [Tenaris] had been pushing for more North American business and is especially eager to get into Alaska.  It is simply not imaginable that [Tenaris] or the other subject companies would stay out of the 
United States which buys as much OCTG as the rest of the world combined and has the highest prices.”  
Hearing Tr. at 56 (Mr. Chaddick, Sooner, Inc.) (Exhibit US-20). 
339  ITC Report at 19. 
340  The president and chief executive officer of one of the largest distributors of OCTG in the United 
States testified at the ITC hearing that: "[m]any of these end users already have single source deals for international supply and they very much want to extend these arrangements to the United States."  Hearing Tr. at 
59 (Mr. Ketchum, Red Man Pipe and Supply) (Exhibit US-20). 
341  The director of one of the largest distributors of OCTG in the United States testified at the ITC 
hearing that: "[t]hey [the Tenaris companies] are already positioning themselves to serve as global suppliers to 
the major end users and they know that you just cannot do that if you are not in this market.").  Hearing Tr. at 55 
(Mr. Stewart, Hunting Vinson) (Exhibit US-20). WT/DS268/R 
Page A-162  
 
 producers to increase shipments was limited by contra cts, many of those contracts were with the very 
end users most eager to see subject imports enter the US market.
342  Indeed, testimony at the hearing 
indicated that customers already buying OCTG from the subject producers would immediately import 
the subject product if these orders were revoked.343 
 
329. Perhaps most importantly, the record in the ITC’s review showed that "prices for casing and 
tubing on the world market are significantly lower  than prices in the United States."344   Indeed, one 
major distributor testified that Tenaris "could dram atically undersell the going price in the United 
States and still get greater returns than they currently do from their international sales."345  This price 
gap represents a very strong incentive not only to in crease shipments to the United States, but to shift 
sales from other markets to serve US customers.  
330. Second, Argentina argues that the ITC could po int to only one trade barrier in third country 
markets, the 67 per cent dumping duty in Canada against imports from Korea.
346  Argentina appears to 
overlook the fact that the ITC examined import barr iers that the producers of casing and tubing faced 
in other countries and on related products (lower-p riced products that were produced in the same 
facilities as casing and tubing) in the United States .  As detailed above, the ITC took into 
consideration that OCTG producers in four of the fi ve countries subject to the sunset review at issue 
(Argentina, Japan, Korea, and Mexico) faced import restrictions in the United States on a variety of 
other pipe and tube products.347  There was clearly ample “positive evidence” that the existence of 
import barriers tended to support a conclusion that increased exports would be likely to enter the US market.  
331. Third, Argentina attacks the ITC’s finding th at foreign producers had an incentive to export 
OCTG casing and tubing to the United States becaus e prices in the United States were significantly 
higher than in other markets.  Specifically, Argentina contends that the ITC's finding of a price 
differential was based "on anecdotal reports from its hearing and not on any independent 
investigation."
348  This statement completely misrepresents th e ITC's analysis of this issue.  In fact, 
the "anecdotal reports" in question were sworn stat ements by some of the largest OCTG distributors 
in the world.349  (Witnesses who testify at ITC hearings  in sunset reviews must swear to the 
truthfulness of their testimony and are subject to cr iminal prosecution for perjury.)   Furthermore, the 
ITC specifically stated that it considered – but was not persuaded by – the arguments of foreign 
producers that these price differences were exaggerated.350   In short, the evidence shows that the ITC 
                                                      
342  This director testified that "[m]ost of the major end users already purchase from these subject 
producers internationally and the end users are unwavering in their desire to see the extremely low priced OCTG that they get internationally extended to the US market."  Id.  (Exhibit US-20). 
343  The president and chief executive officer of one of the largest distributors of OCTG in the United 
States testified at the ITC hearing that: "I recently spoke with a major end use[r] who told me that he could get a far lower price from his international supplier which happened to be one of the foreign producers subject to the 
orders here.  He also said that if these orders were revoked, he would immediately switch to the same foreign 
producer to supply his needs."  Hearing Tr. at 58 (Mr. Ketchum, Red Man Pipe and Supply) (Exhibit US-20). 
344  ITC Report at 19 (emphasis added).  
345  Hearing Tr. at 56 (Mr. Chaddick) (Exhibit US-20). 
346  Argentina's first submission, para. 245. 
347  ITC Report page 20. 
348  Argentina's first submission, para. 246. 
349  See, e.g. , Hearing Tr. at 54 (Mr. Stewart) ("International prices are significantly below those 
prevailing in the United States; in most cases 20 to 25 per cent below.") (Exhibit US-20); id. at 56 (Mr. 
Chaddick) ("{Tenaris's} prices in international {markets} have been as much as 40 per cent lower than United 
States prices."). 
350  ITC Report at 20.  As noted above, the “positive evidence” standard does not preclude the existence 
of any evidence that runs counter to an investigating authority’s conclusion.  If it did, the standard of review for 
panels in Article 17.6(i) of the AD Agreement would be superfluous.   WT/DS268/R 
 Page A-163 
 
 
 did conduct an independent investigation of this issue by considering the relevant evidence submitted 
by both parties – and that this evidence demonstrat ed the existence of a substantial price gap between 
the United States and the rest of the world. 
 
332. Together, the evidence concerning the import volume trends in the original investigation, the 
importance of the US market, Tenaris's desire for global contracts, the desire of its end users to 
purchase imports in this market, the evidence of  import barriers on OCTG and related products, and 
the price gap between world markets and the United States strongly supports the ITC's finding that 
subject producers had strong incen tives to shift into this market and that the subject imports were 
likely to increase in volume.  Argentina's ar guments to the contrary are without merit. 
 (b) The ITC’s Findings on the Likely Price Effects of Imports 
333. Argentina challenges the ITC’s finding that revocation of the orders would likely result in 
negative price effects.
351  Before addressing Argentina’s specific arguments, it may be useful to 
review the basis for the ITC’s finding.  334. The ITC determined that "in the absence of  the orders, casing and tubing from Argentina, 
Italy, Japan, Korea, and Mexico likely would compete on the basis of price in order to gain additional 
market share."
352  The ITC further determined  that "such price-based co mpetition by subject imports 
likely would have significant depressing or suppressing effects on the prices of the domestic like 
product."353  These conclusions rested on a number of findings, including: 
  – the likely significant volume of imports; 
 – the high level of substitutability betwee n the subject imports and the domestic like 
product; 
 – the importance of price in purchasing decisions; 
 – the volatile nature of US demand; 
– the underselling by the subject imports in the original investigations and the current 
review period.
354 
 
335. Argentina has not seriously challenged any of these findings.  As demonstrated above, 
Argentina's contentions concerning the likely volume of imports are without me rit.  Argentina has not 
even challenged the ITC's findings  with respect to substitutability.  Argentina's remaining arguments 
are groundless and should be rejected. 
 
336. With respect to the significance of price in purchasing decisions, Ar gentina contends that 
"{p}rice is an important, although not determinative, factor to purchasers."355  The ITC, however, 
never found that price was a "deter minative" factor; it simply held that "price is a very important 
factor in purchasing decisions."356  Given that Argentina concedes that price is an "important" factor, 
it would appear that Argentina has no basis to compla in about this finding.  In any event, the record 
plainly showed that purchasers identified "price" as the most important factor in purchasing decisions 
far more often than any other factor except for "qua lity," and that price far outstripped quality among 
purchasers ranking their second and third most important factors.357  Furthermore, given that all 
                                                      
351  Argentina's first submission, paras. 247-251. 
352  ITC Report at 21. 
353  Id. 
354  Id. 
355  Argentina's first submission, para. 250. 
356  ITC Report at 21. 
357  Id. at II-17. WT/DS268/R 
Page A-164  
 
 parties agreed that subject casing and tubing wa s interchangeable with the domestic like product,
358 
and that customers would accept  any high-quality, API-certified product regardless of origin,359 the 
record demonstrates that quality would be less of an issue in purchasing decisions, increasing the 
importance of price.  These facts clearly suppor t the ITC's finding on the importance of price. 
 
337. As for the volatile nature of demand, Argentina contends that the ITC failed to explain why 
this factor was significant, and that the ITC did not cite any evidence that demand for OCTG was 
unusually volatile during the period examined.360  These arguments are unavailing.  Certain forecasts 
showed that demand for OCTG was likely to remain strong in the near future.361  Nevertheless, all 
forecasts are by their nature imprecise and such forecasts are inherently suspect given the volatility of the forces affecting oil and gas supply and demand globally.
362  Thus, as it considered the likely effect 
of revoking these orders, the ITC could not assume that strong levels of demand would insulate 
domestic producers from the negative price effects of subject imports.363 
 
338. As for underselling by imports, Argentina's complaints relate solely to the ITC's discussion of 
underselling during the current review period.364  But the ITC itself placed little weight on this point, 
as it recognized that the orders had significantly reduced the volume of subject imports.365  What was 
much more significant to the ITC – and what Argen tina completely ignores in its submission – is the 
fact that underselling by subject imports during the original investigations drove down US prices.366  
This evidence, which Argentina has not refuted or  even challenged, strongly supports the ITC's 
finding on price effects, for it shows the effect of subject imports on US prices in the absence of anti-dumping and countervailing duty orders.  
339. Finally, Argentina maintains that the ITC failed to recognize that domestic prices increased at 
the end of the period examined, and that it is "compl etely illogical" to conclude that, where prices are 
increasing, imports will enter at lower prices and cause injury.
367  The record in the ITC’s review 
refutes these claims.  First, the ITC did recognize that  domestic prices rose at  the end of the period of 
review – although they remained below 1998 levels.368  Second, evidence from the original 
investigation strongly supports a finding that imports can drive down domestic prices even during a 
period of strong demand.369  Thus, it was completely logical for the ITC to conclude that whatever 
current prices may be, imports would drive down or suppress the price of the domestic like product if 
the orders were revoked. 
 
340. In conclusion, Argentina's criticisms of the ITC's findings with respect to price effects are 
without merit.  Assuming arguendo  that Article 3.1 applies to sunset reviews under Article 11.3, the 
ITC's findings on this point should be found to be consistent with the requirements of Article 3.1.  
                                                     
 
358  Id. at 12. 
359  Id. 
360  Argentina's first submission, para. 249. 
361  ITC Report at 15. 
362  Id. 
363  It should also be noted that there was no need for the ITC to demonstrate that the OCTG market had 
been "unusually volatile"; the ITC made clear in its discussion of the point that OCTG market is always  volatile.  
Id. 
364  Argentina's first submission, para. 249. 
365  ITC Report at 21. 
366  Id. at 20-21. 
367  Argentina's first submission, para. 249.. 
368  ITC Report at 21 ("For most products, domestic prices peaked in 1998, fell significantly in 1999, 
then rebounded in 2000."). 
369  Id. at 22 ("{I}n the original investigations, subject imports captured market share and caused price 
effects despite a significant increase in apparent consumption in 1993 and 1994 as compared to 1992.").  WT/DS268/R 
 Page A-165 
 
 
 (c) The ITC’s Findings on the Likely Impact of Imports  
341. Argentina challenges the ITC’s finding that revocation of the orders would likely result in an 
adverse impact on the domestic industry.370 
 
342. The ITC found that the condition of the domestic industry had improved since the anti-
dumping duty orders had been imposed, and that the current condition of the domestic industry was 
“positive.”371  Nonetheless, the ITC found that revocation of the orders likely would lead to a 
significant increase in the volume of subject imports , which likely would undersell the domestic like 
product and significantly depress or  suppress the domestic industry's prices, leading to a significant 
adverse impact on the domestic industry.  The ITC noted that in the original investigation, a significant increase in demand had not precluded subject imports from gaining market share and 
having adverse price effects. 
 
343. Argentina argues essentially th at the ITC’s findings as to the likely impact of imports on the 
domestic industry are flawed because of the alleged deficiencies in the findings regarding the likely volume and price effects of imports, on which the IT C’s impact finding rests.  Argentina’s arguments 
concerning volume and price effects are without any merit, for the reasons discussed above, and its 
claim regarding the adverse impact finding should be rejected for the same reasons.  
 
I. T
HE ITC  SUNSET DETERMINATION ON OCTG  FROM ARGENTINA IS NOT INCONSISTENT WITH 
ARTICLE 3.4 OF THE AD A GREEMENT  
344. Argentina claims that the ITC acted inconsis tently with Article 3.4 of the AD Agreement by 
failing to evaluate all of the economic factors enumerated therein in its OCTG sunset determination.372  
Article 3.4 provides: 
 
The examination of the impact of the dumped imports on the domestic industry 
concerned shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including actual
 and potential decline  in 
sales, profits, output, market share, produc tivity, return on investments, or utilization 
of capacity;  factors affecting domestic pr ices;  the magnitude of the margin of 
dumping;  actual  and potential negative effects  on cash flow, inventories, 
employment, wages, growth, ability to raise ca pital or investments.  This list is not 
exhaustive, nor can one or several of these f actors necessarily give decisive guidance.  
 (Emphasis added). 
 345. As explained above, the provisions of Article 3 do not govern sunset reviews.  Therefore, the 
ITC sunset determination in OCTG from Argentin a cannot be found to be inconsistent with 
Article 3.4.  
                                                     
 
370  Argentina's first submission, paras. 252-254. 
371  ITC Report at 22.  Argentina’s recitation of the evidence which the ITC reviewed in reaching this 
conclusion is somewhat selective, and does not reveal the extreme volatility in the domestic industry’s 
performance over the period that the ITC examined.  For example, the ITC noted that domestic producers’ 
shipments fluctuated dramatically during the period of review, declining  from 1,410,088 short tons in 1998 to 1,055,770 short tons in 1999, and rising again to 2,005,644 short tons in 2000.  ITC Report at 22.  Financial 
results were similarly volatile: from 1995 to 1997 operating income increased from a loss of $0.6 million to a 
profit of $174 million, before declining to a loss of $1 29 million in 1999, and then rising to a profit of $130 
million in 2000.  Id.  Given this volatility in the domestic industry’s performance, it is inaccurate to speak of 
“positive trends,” as Argentina does.  Argentina's first submission, para. 254. 
372  Argentina's first submission, paras. 255-266. WT/DS268/R 
Page A-166  
 
 346. In addition to the reasons given above regardin g Article 3 in general, there are further textual 
indications in Article 3.4 as to why it specifically is  not applicable to sunset reviews.  There may be 
no “dumped imports” at the time of a sunset review, and consequently there may be no “impact” for 
the investigating authority to examine.  There also  may not be any “actual and potential” declines 
evident or reflected in the information before the investigating authority at the time of the sunset 
review, by virtue of the absence of imports.  In sh ort, the obligations descri bed in Article 3.4 cannot 
practicably be applied to all sunset reviews, and cert ainly could not be applied to sunset reviews in the 
same systematic and comprehens ive manner that has been required in original dumping 
investigations. 
 347. Nevertheless, the United States notes that th e report of the ITC staff in the OCTG sunset 
review, which is appended to the ITC published determination and which the ITC adopted,
373 
presented detailed information concerning each of the Article 3.4 factors, as follows: 
 
Factor  (* indicates that the ITC  discussed 
this factor specifically)  Location in ITC Report  
Declines (actual or potential) in  
Sales * p. III-6, Table III-9 
Profits * p. III-6, Table III-9 
Output * p. III-1, Table III-1 
Market Share * p. IV-3, Table IV-1 
Productivity p. III-4, Table III-7 
Return on Investments p. III-6, Table III-9  
Capacity Utilization *  p. III-1, Table III-1 
Factors Affecting Domestic Prices Part V 
Margin of Dumping p. V-1 
Actual or Potential Negative Effects on:  
Cash Flow p. III-6, Table III-9 
Inventories p. III-4, Table III-5 
Employment p. III-4, Table III-7 
Wages p. III-4, Table III-7 
Growth p. III-6, Table III-9 
Ability to Raise Capital or  
Investments * p. III-13, Table III-32 
 
J. THE ITC  SUNSET DETERMINATION ON OCTG  FROM ARGENTINA IS NOT INCONSISTENT WITH 
ARTICLE 3.5 OF THE AD AGREEMENT  
348. Argentina argues that the ITC failed to comply  with the obligations of Article 3.5 to analyze 
any causal link between subject imports and injury to the domestic industry, and that it failed to 
“separate and distinguish the potentially injurious ef fects of other causal factors from the potential 
effects of the dumped imports.”374 
 
349. Article 3.5 provides:  
 
It must be demonstrated that the dumped imports are , through the effects of dumping, 
as set forth in paragraphs 2 and 4, causing injury  within the meaning of this 
Agreement.  The demonstration of a causal  relationship between the dumped imports 
and the injury  to the domestic industry shall be based on an examination of all 
                                                      
373  Transcript of 15 June 2001 ITC Meeting at 5 (Exhibit US-21). 
374  Argentina's first submission, paras. 267-269.  WT/DS268/R 
 Page A-167 
 
 
 relevant evidence before the authorities.   The authorities shall also examine any 
known factors other than the dumped imports which at the same time are injuring  the 
domestic industry, and the injuries caused  by these other factors must not be 
attributed to the dumped imports.  Factor s which may be relevant in this respect 
include,  inter alia , the volume and prices of imports not sold at dumping prices, 
contraction in demand or changes in the patterns of consumption, trade restrictive 
practices of and compe tition between the foreign and domestic producers, 
developments in technology and the export performance and productivity of the 
domestic industry. 
 (Emphasis added). 
 
350. As explained above, the provisions of Article 3 are not applicable to sunset reviews.  In 
addition to the reasons given above, there are furthe r textual indications in Article 3.5 as to why it 
specifically is not applicable to sunset reviews. 
 351. First, Article 3.5 refers to the “dumped imports and speaks of such imports in the present tense as “causing injury.”  However, in a sunset review there may be no dumped imports.  As a result 
of the order, such imports may have decreased or exited the market altogether, or if they have 
maintained their presence in the market, they may be  priced higher than they were during the original 
investigation, when they were entering the market unencumbered by any additional duties. 
 352. Second, Article 3.5 refers to existing “injury” and describes an existing causal link between dumped imports and that injury.  However, in a su nset review, with an anti-dumping order in place, 
there may be no current injury or causal link; indeed, it would be surprising if there were given the 
remedial effect of an anti-dumping duty order.  This is implicit in the referenc e in Article 11.3 to the 
“continuation or recurrence
 of injury.” 
 
353. Third, Article 3.5 refers to “any known  factors other than the dumped imports which at the 
same time are injuring  the domestic industry.”  (Emphasis added).  In a sunset review, where the 
focus is on evaluating the likely effect of imports upon expiry of the duty ( i.e., at some point in the 
future), other factors “which at the same time are injuring the domestic indus try” will not be “known” 
to the investigating authority.  354. In sum, it is clear from the text of Article 3.5 that the obligations contained in that article does 
not extend to sunset reviews. 
 
355. Furthermore, the United States notes that ev en if Article 3.5 were applicable, Argentina has 
not identified which “other causal factors” the ITC should have considered.  Argentina asserts that the 
ITC failed to consider “other characteristics of the market ( e.g., expected changes in demand)” in the 
section of the determination discussing the likely  impact of revocation on the domestic industry.
375  
The ITC described a number of c onditions of competition that informed its analysis in the sunset 
review.376  These included a review of forecasts of future demand, which suggested that demand 
would remain strong.377  Strong demand is, of course, not likely to be “another cause” of injury. 
 
                                                      
375  Argentina's first submission, para. 269. 
376  ITC Report, pages 14-16. 
377  ITC Report, pages 15-16. WT/DS268/R 
Page A-168  
 
 K. T
HE TIME FRAME IN WHICH INJURY WOULD BE LIKELY TO RECUR  
1. The US Statutory Provisions as to the time  frame in which injury would be likely to 
recur are not inconsistent with Articl es 11.3 and 3 of the AD Agreement 
356. Argentina claims that the US statutory requirements contained in Sections 752(a)(1) and 
752(a)(5) of the Tariff Act of 1930, as amended, are inconsistent “as such” with AD Agreement 
Articles 11.3 and 3.378  Sections 752(a)(1) and 752(a)(5) inst ruct the ITC in a sunset review to 
determine whether injury would be likely to continue  or recur "within a reasonably foreseeable time" 
and to "consider that the effects of revocation or termination may not be imminent, but may manifest 
themselves only over a longer period of time."379 
 
357. Argentina misconstrues Article 11.3.  Article 11.3 does not specify the time frame relevant to 
a sunset inquiry.  Argentina’s suggestion that Me mbers are required to assess the likelihood of 
recurrence “upon revocation of the order”380 or “upon expiry of the order”381 are without any basis in 
the text of the Agreement.  Article 11.3 only re quires a determination of whether revocation "would 
be likely to lead to continuation or recurrence of in jury."  At most, the words “to lead to” suggest that 
the recurrence of injury need not be immediate – that it need not occur “upon” revocation of the order.  
258. In the absence of any specific provision in Article 11.3, Members remain free to determine 
under their own laws and procedures the time frame re levant in sunset inquiries.  It is inherently 
reasonable for the United States to consider the likelihood of continuation  or recurrence "within a 
reasonably foreseeable time" and that the "effects of revocation or termination may not be imminent, 
but may manifest themselves only over a longer peri od of time."  The legislative history underlying 
the US statutory provisions provides the ITC with guidance on the factors that it should consider in 
deciding what the appropriate time-frame should be in any particular case.
382 
 
359. Argentina also seeks to invoke provisions of Ar ticle 3 that do not apply to sunset reviews.  
Both Article 3.7 and 3.8 by their terms pertain to threat determinations, not to sunset reviews, (notwithstanding Argentina’s attempt to extend th e application of these pr ovisions to all “cases 
involving future injury”).
383 
 
360. In sum, the AD Agreement is silent on the question of the relevant time frame within which 
injury would be likely to recur.  This is left to the discretion of Members, and the standard adopted in 
US law is reasonable.  As such, it cannot be fou nd to be inconsistent with Article 11.3 or any 
provision of Article 3 (assuming arguendo  that Article 3 applies to sunset reviews). 
 
                                                      
378  Argentina's first submission, paras. 270-275.  In the heading preceding paragraph 270 of its 
submission (heading “C’) and in the Executive Summary of its claims (para. 41) Argentina asserts that these US 
statutory provisions are also inconsistent with AD Agreement Article 11.1.   
379  19 USC. §§ 1675a(a)(1), 1675a(a)(5) (Exhibit ARG-1). 
380  Argentina's first submission, para. 271. 
381  Argentina's first submission, para. 272. 
382  The SAA, at 887, explains that the factors that the ITC should consider include “the fungibility or 
differentiation within the product in question, the level of substitutability between the imported and domestic 
products, the channels of distribution used, the methods of contracting (such as spot sales or long-term contracts), and lead times for delivery of goods, as well as other factors that may only manifest themselves in 
the longer term, such as planned investment and the shifting of production facilities.”  (Exhibit US-11). 
383  Argentina's first submission, para. 275.  WT/DS268/R 
 Page A-169 
 
 
 2. The ITC’s application of the Statutory Provis ions as to the time frame in which injury 
would be likely to recur was not inconsistent with Articles 11.3 and 3 of the 
AD Agreement 
361. Argentina claims that the ITC‘s application of the US statutory requirements contained in 
Sections 752(a)(1) and 752(a)(5) of the Tariff Act of 1930, as amended, in the sunset review on 
OCTG from Argentina was inconsistent  with AD Agreement Articles 11.3 and 3.384 
 
362. As discussed above in Section IV, this claim is not with the Panel’s terms of reference. 
Nonetheless, there is no substantive merit to Arge ntina’s claim.  Because, as explained in the 
preceding section, Article 11.3 is s ilent on the time frame relevant to a sunset review and imposes no 
obligations in this respect, the ITC cannot be found to  have acted inconsistently with Article 11.3 or 
Article 3 by failing to specify the precise  period that it considered relevant. 
 
L. THE ITC  DID NOT ACT INCONSISTENTLY WITH ANY PROVISION OF THE AD AGREEMENT BY 
CONDUCTING A CUMULATIVE ANALYSIS IN THE OCTG  SUNSET REVIEW  
1. The AD Agreement does not prohibit  cumulation in sunset reviews 
363. Argentina argues that because cumulation is not expressly permitted in Article 11.3, the ITC 
is prohibited from engaging in a cumulative analysis in a sunset review.385  Argentina’s position turns 
elementary principles of treaty interpretation on th eir head.  The treaty interpreter is to interpret the 
ordinary meaning of the terms of the treaty in th eir context and in light of its object and purpose.386  
Accordingly, the genesis of any obligation or righ t arising under the WTO Agreement is the text of 
the relevant provision.387  Absent a textual basis, the rights of Members cannot be circumscribed. 
 
364. Even if a prohibition on cumulation could some how be inferred from the text of Article 11.3, 
such a prohibition would be illogical and run counte r to the overall object and purpose of the AD 
Agreement ( i.e., to provide a remedy to protect domestic industries from injury caused by dumped 
imports).  The Appellate Body explained the ra tionale behind the practice of cumulation in 
investigations in its recent report in EC - Pipe Fittings : 
 
A cumulative analysis logically is premis ed on a recognition that the domestic 
industry faces the impact of the “dumped imports” as a whole and that it may be 
injured by the total impact of the dumped imports, even though those imports originate from various countries.  If, for example, the dumped imports from some countries are low in volume or are declining, an exclusively country-specific analysis 
may not identify the causal relationship between the dumped imports from those 
countries and the injury suffered by the dome stic industry.  The outcome may then be 
that, because imports from such countries could not individually  be identified as 
causing injury, the dumped imports from these countries would not be subject to anti-dumping duties, even though they are in fact causing injury.
388 
                                                      
384  Argentina's first submission, paras. 276-277.  
385  Argentina's first submission, paras. 278-287.  
386  Vienna Convention on the Law of Treaties, art. 31(1); United States – Standards for Reformulated 
and Conventional Gasoline , WT/DS2/AB/R, Report of the Appellate Body adopte d 20 May 1996, Sec. III.B. 
387  See United States - Import Prohibition of Certain Shrimp and Shrimp Products , WT/DS58/AB/R, 
Report of the Appellate Body adopted 6 November 1998, para. 114; Japan - Taxes on Alcoholic Beverages , 
WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, Report of the Appellate Body adopted 1 November 1996, 
Sec. G. 
388  EC-Pipe Fittings , para. 116. WT/DS268/R 
Page A-170  
 
 365. In light of the recognition that imports fr om a group of countries may cumulatively cause 
injury even though imports from individual countr ies in this group do not, it would be illogical to 
require that sunset reviews be conducted only on a country-specific basis.  Such a requirement would 
permit anti-dumping duties to expire  even though the expiry of the duty would be likely to lead to 
continuation or recurrence of injury. 
 
366. Argentina’s arguments in support of its contention that cumulation is prohibited in sunset 
reviews are unpersuasive.  The one reference in the text  of Article 11.3 to “the duty” in the singular is 
not conclusive.
389  
 367. Argentina claims that cumulation is inconsistent with “the object and purpose of the sunset provision,” which Argentina suggests is the expiry of dumping duties.
390  As a preliminary matter, we 
note that the relevant principle of treaty in terpretation goes to the object and purpose of the treaty , and 
not particular treaty provisions.391  To the extent that the purpose of  Article 11.3 is re levant, Argentina 
simply misconstrues it.  If that purpose were simply to rescind anti-dumping duties, there would be no 
need to enquire as to whether expiry of the duty wo uld be likely to lead to continuation or recurrence 
of dumping and injury. 
 
368. Argentina seeks to bolster its argument that cumulation is not permitted in sunset reviews by 
noting that there is no explicit cross-reference to  cumulation or to Article 3.3 in the context of 
Article 11.392  This argument has no merit.  A cross-refe rence to an obligation is necessary where the 
drafters seek to assert a broade r obligation.  However, there is no need to cross-reference to a 
permissive authority where a right exists absent its limitation in the Agreement. 
 
369. Argentina’s reference to US - German Steel  and its suggestion that the Appellate Body 
“understands that the injury analysis in a suns et review is not conducted on a cumulated basis”393 is 
entirely unconvincing.  The question of whether cu mulation was permitted in sunset reviews was not 
before the Appellate Body.  In fact, that dispute related entirely to the Commerce role in sunset 
reviews. 
 
370. Finally, Argentina overlooks the fact that cumulation in anti-dumping investigations was a 
widespread practice among GATT c ontracting parties prior to the adoption of Article 3.3 in the 
Uruguay Round, even though the Tokyo Round Anti-Dumping Code was silent on the subject.394 
 
371. In sum, because Article 11.3 is silent on the subject of cumulation, a prohibition on 
cumulation in sunset reviews should not be read into Article 11.3.  
2. The ITC did not act inconsistently with Article 3.3 of the AD Agreement because 
Article 3.3 does not apply to sunset reviews 
372. Argentina argues that if Articles 3.3 and 11.3 do not preclude cumulation in sunset reviews, 
then the obligations of Article 3.3 apply so as to re nder the ITC’s cumulative analysis in the Argentina 
                                                     
 
389  Contrary to Argentina’s assertion in paragraph 282 of its first submission, Article 11.3 does not 
refer to “an anti-dumping duty.”  Nor does Article 11.3 equate a “duty” with a “measure.” 
390 Argentina's first submission, para. 285. 
391  Vienna Convention on the Law of Treaties, Art. 31(1). 
392  Argentina's first submission, para. 284. 
393  Argentina's first submission, para. 286. 
394  See, e.g. , the GATT Uruguay Round, A Negotiating History  (1986-1992), (T. Stewart, Ed.) at 1475-
1478, 1594, and 1598 (Exhibit US-22).  WT/DS268/R 
 Page A-171 
 
 
 OCTG case inconsistent with the terms of that provision.395  Argentina’s attempts to read the 
requirements of Article 3.3 into Ar ticle 11.3 should be rejected. 
 
373. As explained above, the provisions of Article  3 are not applicable to sunset reviews.  
Moreover, Argentina’s position is directly at odds with recent panel and Appellate Body reports 
construing the meaning of Article 3.3. 
 
374. As the panel in US – Japan Sunset concluded, while AD Agreement Article 3.3 establishes 
certain prerequisites for the conduct of a cumulative injury analysis in anti-dumping investigations, it 
does not apply to Article 11.3 reviews.396  Article 3.3 provides that: 
 
Where imports of a product from more than one country are simultaneously subject to 
anti-dumping investigations , the investigating  authorities may cumulatively assess the 
effects of such imports only if  they determine that (a) the margin of dumping 
established in relation to  the imports from each country is more than de minimis  as 
defined in paragraph 8 of Article 5 and the volume of imports from each country is 
not negligible and (b) a cumulative assessment of the effects of the imports is 
appropriate in light of the conditions of competition between the imported products 
and the conditions of competition between the imported products and the like 
domestic product. 
375. By the plain meaning of Article 3.3’s text – “subject to anti-dumping investigations ” – the 
limitations on cumulation there imposed apply only to investigations.397  Article 11 contains no cross-
reference to Article 3 that would render it applicable  to Article 11 reviews.  Moreover, Article 3 does 
not cross-reference Article 11.  The lack of similar cross-references with respect to Articles 3 and 11 
provide contextual support that Article 3's neglig ibility requirement is inap plicable to Article 11 
reviews.398  
 
376. The reference in Article 3.3 to Article 5.8 likewise makes clear that the requirements of Article 3.3 are inapplicable to Article 11 reviews.    The text of Article 5.8 limits its application to 
anti-dumping investigations.
399  As the panel recently stated in US – Japan Sunset :  “There is . . . no 
textual indication in Article 5.8 that would suggest or require that the obligation in Article 5.8 also 
applies to sunset reviews.  Nor is there any such su ggestion or requirement in the other provisions of 
Article 5.”400 
 
377. Moreover, there is no reference in Article 11.3 to Article 5 (in contrast to Article 11’s 
reference to Articles 6 and 8).   In re versing a panel’s determination that the de minimis threshold 
applicable to countervailing duty investigations app lied to sunset reviews, the Appellate Body stated: 
 
                                                      
395  Argentina's first submission, paras. 288-291. 
396  US – Japan Sunset , para. 7.102. 
397  See US – Japan Sunset , paras. 7.97-7.98. 
398  See US – Japan Sunset , paras. 7.95, 7.98;  cf., id.. paras. 7.27, 7.68, 7.71 (noting that the lack of 
cross-reference in AD Agreement Article 11 to the provisions of Article 5 indicate that the drafters did not 
intend for the provision of Article 5 to apply to sunset reviews); US – German Steel , paras. 81 and 105 (noting 
the same with respect to the parallel provisions in the SCM Agreement). 
399  AD Agreement, Art. 5.8 (“An application under paragraph 1 shall be rejected and an investigation 
shall be terminated promptly as soon as the authorities  concerned are satisfied that there is not sufficient 
evidence of either dumping or of injury to justify proceeding with the case.  There shall be immediate termination in cases where the authorities determine that the margin of dumping is de minimis , or that the 
volume of dumped imports, actual or potential, or the injury, is negligible.”) (underline added). 
400  US – Japan Sunset , paras. 7.70, 7.103. WT/DS268/R 
Page A-172  
 
 [T]he technique of cross-referencing is frequently used in the SCM Agreement. ... 
These cross-references suggest to us that, when the negotiators of the SCM 
Agreement intended that the disciplines set forth in one provision be applied in 
another context, they did so expressly.  In light of the many express cross-references 
made in the SCM Agreement, we attach significance to the absence of any textual 
link between Article 21.3 reviews and the de minimis  standard set forth in Article 
11.9 [of the SCM Agreement].
401 
378. More recently, the panel in US – Japan Sunset  rejected Japan’s contention that the 
negligibility standard of Article 5. 8 applies to Article 11.3 reviews: 
 
[A] textual interpretation of Article 3.3 al lows an examination consistent with our 
examination relating to the alleged ap plication to sunset reviews of the de minimis  
standard in Article 5.8.  That is, on the ba sis of our textual analysis of Article 5 made 
in reaching our finding that the de minimis standard of Article 5.8 does not apply to 
sunset reviews ( supra,  para. 7.70), we consider that the text of Article 5 similarly fails 
to support the proposition that the negligib ility standard of Article 5.8 applies to 
sunset reviews.402 
379. In addition, the application of Article 5.8’s negligibility thresholds would be unworkable in 
the context of sunset reviews.  In sunset revi ews, the investigating authorities are tasked with 
determining likely  import volumes not only at some point in the future, but also under different 
conditions, namely a market without the discipline of an anti-dumping order.  Precise numerical thresholds appropriate for characterization of current  import volumes in investigations of current 
injury, or immediate threat thereof, are simply not workable for characterizing likely volumes of 
dumped imports in determinations of whether injury will continue or recur in the future and under 
different conditions.  The predictive nature of sunset  reviews suggests a need for a flexible standard 
for cumulation, rather than the strict numerical negligibility threshold applied in the investigative 
phase.  
380. In sum, because of  the express language of both Articles 3.3 and 5.8, the lack of any cross-
reference in Article 11.3 to Articles 3.3 or 5.8, findings in recent panel and Appellate Body reports, 
and the impracticability of applying a strict numerical threshold to likely future import volumes, any 
restrictions on cumulation contained in Articles 3. 3 and 5.8, which might arguably otherwise apply, 
do not extend to sunset reviews.  
M. N
ONE OF THE “MEASURES ” IDENTIFIED BY ARGENTINA ARE INCONSISTENT WITH ARTICLE  VI 
OF THE GATT  1994,  ARTICLES 1 OR 18 OF THE AD AGREEMENT , OR ARTICLE XVI:4  OF THE 
WTO  AGREEMENT  
381. In Section IX of its First Submission, Arge ntina claims that the measures identified by 
Argentina in its panel request are inconsistent with Article VI of the GATT 1994, Articles 1, 18.1 and 
18.4 of the AD Agreement, and Ar ticle XVI:4 of the WTO Agreement.403  As demonstrated in 
Section IV.C.5, above, these dependent claims ar e not within the Panel’s terms of reference. 
 
                                                      
401  US – German Steel,  AB Report, para. 69. 
402  US – Japan Sunset, Panel Report, para. 7.103. 
403  Specifically, Argentina refers to “[t]he measures identified . . . in its Panel request, including the 
Department’s determination to conduct an expedited review, the Department’s Sunset Determination, the 
Commission’s Sunset Determination, the Department’s Determination to Continue the Order, and the relevant 
US laws, regulations, policies and procedures ... .”  Argentina's first submission, para. 295.  WT/DS268/R 
 Page A-173 
 
 
 382. In addition, these claims are all dependent claims in that they depend upon a finding of an 
inconsistency with an obligation contained in some  other provision of the AD Agreement.  Because, 
as demonstrated above, none of the “measures” identified by Argentina – either in its panel request or 
in its first submission – are inconsistent with provisi ons of the AD Agreement, they are, by definition, 
not inconsistent with the provisions making up Arge ntina’s dependent claims.  Moreover, with respect 
to Argentina’s “as such” claims, as discussed above, to the extent that the “measures” challenged by 
Argentina are not “measures” at all or are not “mandatory” measures, there can be no violation of 
Article 18.4 of the AD Agreement or Article XVI:4 of the WTO Agreement.   
 
383. Finally, to the extent that any of Argentina’ s dependent claims are base d upon claims that, as 
demonstrated in Section IV, above, are not within the Panel’s terms of reference, they must be 
rejected. 
 
384. Argentina’s discussion of its dependent claims , however, raises one additional issue; namely, 
whether certain Commerce and ITC determinations identified by Argentina as “measures” actually 
constitute measures for purposes of the AD Agreement and the DSU.  One determination which is particularly problematic is what Argentina has re ferred to as the “Department’s Determination to 
Expedite.”
404  During the consultations, the United States explained to Argentina its position that 
while this determination could be challenged in WTO dispute settlement as part of a challenge to a 
bona fide  measure, the Determination to Expedite itself  did not constitute a separately challengeable 
measure.  When, in its panel request, Argentina pe rsisted in treating this interlocutory determination 
as a discrete measure, the United States made its po sition on this issue clear by means of the following 
statement to the DSB:405 
 
This Determination to Expedite - which Arge ntina classified as a "measure" - was in 
reality nothing more than a preliminary, in terlocutory decision made by a Department 
of Commerce official in the course of the sunset review on OCTG from Argentina.  
Indeed, as indicated in Argentina's panel request, the so-called "measure" was nothing 
more than an internal Commerce Departme nt memorandum deciding to conduct an 
expedited review, as opposed to a full sunset review.  As such, it was no different 
than any of the myriad types of decisions made in the course of an anti-dumping 
investigation or review, such as a decision to conduct onsite verification or not, 
extend the deadline for a preliminary or final determination, limit the number of 
exporters involved, etc., etc.  Hundreds, perhaps thousands, of discrete preliminary 
decisions went into what eventually became an anti-dumping measure.  However, 
paragraph 4 of Article 17 of the Anti-Du mping Agreement made clear that only 
certain specified types of measures could be the subject of a panel proceeding.  These 
did not include preliminary decisions.  Acco rdingly it was clear that Argentina could 
not challenge this "Determination to Expedite" as a measure in its own right. 
385. The United States continues to believe that th e Determination to Expedite may be challenged 
as part of a challenge to a bona fide  anti-dumping measure, but that it is not a measure in its own 
right.  In the view of the United States, a contrary  position would be a recipe for chaos given the vast 
number of interlocutory decisions that must be ma de in the course of an anti-dumping proceeding.  
Therefore, in its findings, the Pa nel should make clear that the Determination to Expedite is not a 
measure. 
 
                                                      
404  See, e.g. , Argentina's first submission, Section VII.C.1, VII.C.4, and para. 295. 
405  WT/DSB/M/147, para. 33 (Exhibit US-1). WT/DS268/R 
Page A-174  
 
 VII. CONCLUSION 
386. Based on the foregoing, the United States respectfully requests that the Panel reject 
Argentina’s claims in their entirety. 
 
387. In addition, based on the foregoing, the United States respectfully requests that the Panel 
make the following preliminary rulings: 
 
(a) Because page 4 of Argentina’ s panel request fails to conf orm to the requirements of 
Article 6.2 of the DSU, the claims set fort h on page 4 are not within the Panel’s terms 
of reference. 
(b) Because Sections B.1, B.2 and B.3 of Argen tina’s panel request do not conform to the 
requirements of Article 6.2 of the DSU, Argentina’s claims in those sections alleging 
inconsistencies with Article 3 and Article 6 of the AD Agreement are not within the 
Panel’s terms of reference. 
(c) Because the following matters were not incl uded in Argentina’s panel request, they 
are not within the Panel’s terms of reference: 
(i) Argentina’s claim that Commerce’s sunset review practice, both as such and 
as applied, is inconsistent with Article 11.3 of the AD Agreement; 
(ii) Argentina’s claim that 19 USC. §§ 1675(c) and 1675(a)(c), the SAA, and the 
Sunset Policy Bulletin , taken together, establish an irrefutable presumption 
that is inconsistent with Article 11.3 of the AD Agreement 
(iii) Argentina’s claim that Commerce’s sunset review practice is inconsistent 
with Article X:3(a) of the GATT 1994 
(iv) Argentina’s claim that the ITC’s appli cation of 19 USC. §§ 1675a(a)(1) and 
(5) in the sunset review of OCTG from Argentina is inconsistent with 
Articles 11.3 and 3 of the AD Agreement 
(v) Argentina’s claim that the US Measures it has identified are inconsistent with 
Article VI of the GATT 1994, Articles 1 and 18 of the AD Agreement, and 
Article XVI:4 of the WTO Agreement. 
 
 
  WT/DS268/R 
 Page A-175 
 
 
 ANNEX A-3 
 
SUBMISSION FROM ARGENTINA ON THE REQUEST BY THE 
UNITED STATES FOR PRELIMINARY RULINGS UNDER 
ARTICLE 6.2 OF THE DSU 
 
4 December 2003 
 
 
TABLE OF CONTENTS 
Page  
I. INTRODUCTION ................................................................................................................176  
II. DSU ARTICLE 6.2 ...............................................................................................................1 77 
III. ARGENTINA’S “PAGE FOUR” CLAIMS ARE WITHIN THE PANEL’S 
TERMS OF REFERENCE ..................................................................................................178  
A. US COMPLAINT .......................................................................................................................178  
B. RELEVANT WTO  JURISPRUDENCE ..........................................................................................179  
1. Identification of measures ....................................................................................................1 79 
2. Identification of the legal basis of the complaint................................................................180  
(a) Claims versus Arguments .......................................................................................................1 80 
(b) Minimum Requirements .........................................................................................................18 0 
(c) Prejudice to the Defending Party ............................................................................................181  
3. Narrative description.......................................................................................................... ..183  
C. THE CHALLENGED MEASURES AND THE LEGAL BASIS OF ARGENTINA ’S COMPLAINT 
HAVE BEEN ADEQUATELY IDENTIFIED ....................................................................................184  
1. Argentina’s Panel Request must be read as a whole .........................................................185  
2. A full narrative description, while not required, has been provided ...............................186  
3. The United States has not suffered pr ejudice during the course of the panel 
proceedings .................................................................................................................... ........186  
IV. SECTIONS B.1, B.2 AND B.3 OF ARGENTINA’S CLAIMS ARE WITHIN 
THE PANEL’S TERMS OF REFERENCE.......................................................................190  
A. US COMPLAINT .......................................................................................................................190  
B. RELEVANT WTO  JURISPRUDENCE ..........................................................................................190  
C. ARGENTINA ’S POSITION ..........................................................................................................190  
V. THE “CERTAIN MATTERS” REFERRED TO BY THE UNITED STATES ARE ALL WITHIN THE PANEL’S TERMS OF REFERENCE ...................................194
 
A. US COMPLAINT .......................................................................................................................194  
B. ARGENTINA ’S POSITION ..........................................................................................................194  
VI. CONCLUSION ..................................................................................................................... 199 WT/DS268/R 
Page A-176  
 
  
I. INTRODUCTION 
1. Argentina regrets that the United States has s ought to divert the attention of the Panel from 
the important substantive issues before it by making  this unnecessary request for Preliminary Rulings.  
Argentina’s Request for Establishment of a Panel
1 is detailed, specific and clear, and complies fully 
with Article 6.2 of the DSU. 
 
2. The fact that the United States has put such c onsiderable effort into th is procedural challenge 
speaks volumes about the strength of the US case on the merits.  The United States claimed in its first 
submission that “Argentina has a very weak case.”2  If this were so, the United States would not have 
put in such extensive – although unavailing – argumentation on the Panel’s terms of reference.  The 
United States seeks to eliminate some of Argentin a’s claims through procedural devices in order to 
prevent the Panel from adjudicating on the merits.  This submission will demonstrate that the US 
procedural challenge is baseless and that the Panel should decide the case on the merits. 
 3. Argentina is also surprised that the United States  has chosen this route, particularly in light of 
its recent condemnation of such conduct in the Canada Wheat Board dispute.  In that case, the United 
States asserted before the Panel that: 
 
What Canada is really asking is for this Panel to impose a new requirement on 
complaining parties:  namely, for the panel request to summarize the arguments to be 
presented in the first submission.  However, such a requirement is not included in Article 6.2 of the DSU.  Moreover, the Appellate Body in EC Bananas  clearly 
rejected this notion. 
Also, [this idea], if adopted, would result in procedural disputes in each and every 
case brought under the DSU.  If the panel request has to summarize the complaining 
party’s arguments, every subsequent submission of the complaining party would be subject to challenge that one or more arguments, or sub-arguments, should be 
disregarded as being inadequately summarized in the panel request.  This process 
would not result in any additional fairness or better reports.  Instead, it would just 
encourage preliminary motions and procedural disputes.
3 
4. Argentina agrees fully with the United States that panel requests do not have to “summarize 
the arguments to be presented in the first submission,” and shares the US concern that such a process 
will not “result in any additional fairness or bett er reports” but will “just encourage preliminary 
motions and procedural disputes.”   
 
5. Argentina therefore remains puzzled that in th e present case, the United States has chosen to 
disregard the sound advice it offered to the Canada Wheat Board  Panel. 
 
6. That said, Argentina will respond fully to th e allegations made by the United States in its 
Request for Preliminary Rulings.  Argentina w ill begin by briefly highlighting some of the 
                                                      
 1 Request for Establishment of a Panel by Argentina, United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubular Goods from Argentina , WT/DS268/2 (3 April 2003) (“Argentina’s Panel 
Request”).  
2 US first submission, para. 3. 
 3 Oral Statement of the United States at the First Panel Meeting, Canada – Measures Relating to 
Exports of Wheat and Treatment of Imported Grain , WT/DS276 (6 June 2003) paras. 3 and 4.  Available from 
the web site of the United States Trade Representative:  www.ustr.gov.   WT/DS268/R 
 Page A-177 
 
 
 jurisprudence that should guide the Panel in its in terpretation of Article 6.2.  Argentina will then 
respond specifically to the three categories of allegati ons made by the United States:  (i)  the so-called 
“Page Four” claims; (ii) the claims under Sections B.1,  B.2 and B.3; and (iii) the “certain matters” that 
the United States asserts were not included in Argentina’s Panel Request. 
 
7. Argentina also notes at the outset that the United States bears the burden of proving that 
Argentina’s Panel Request does no t comply with DSU Article 6.2.4  As Argentina will argue below, 
the United States has failed to discha rge this burden in the present case. 
 II. DSU ARTICLE 6.2 
8. Article 6.2 of the DSU provides in part as follows: 
 
The request for the establishment of a panel sh all be made in writing.  It shall indicate 
whether consultations were held, identify the specific measures at issue and provide a 
brief summary of the legal basis of the co mplaint sufficient to present the problem 
clearly. 
9. As noted by the Appellate Body in the Korea – Dairy  case: 
 
When parsed into its constituent parts, Article 6.2 may be seen to impose the 
following requirements.  The request must:  (i) be in writing; (ii) indicate whether 
consultations were held; (iii) identify the specific measures at issue; and (iv) provide 
a brief summary of the legal basis of the complaint sufficient to present the problem 
clearly.
5  
10. The United States has challenged Argentina’s compliance with the thir d and fourth of these 
requirements, i.e. to “identify the specific measures at issue,” and to “provide a brief summary of the 
legal basis of the complaint sufficie nt to present the problem clearly.” 
 11. As noted in the US first submission, the Appellate Body recently summarized the purpose of 
the terms of reference in WTO disputes.  As it stated in the Steel from Germany  appeal: 
 
The requirements of precision in the requ est for the establishment of a panel flow 
from the two essential purposes of the term s of reference.  First, the terms of 
reference define the scope of the dispute.  Secondly, the terms of reference, and the 
request for the establishment of a pane l on which they are based, serve the due 
                                                     
 
4 As the Appellate Body stated in Wool Shirts and Blouses : 
 
[W]e find it difficult, indeed, to see how any system of judicial settlement could work if it incorporated the proposition that the mere assertion of a claim might amount to proof.  It is, 
thus, hardly surprising that various international tribunals, including the International Court of 
Justice, have generally and consistently accepted and applied the rule that  the party who 
asserts a fact, whether the claimant or the respondent, is responsible for providing proof thereof.  Also, it is a generally-accepted canon of evidence in civil law, common law and, in 
fact, most jurisdictions, that the burden of proof rests upon the party, whether complaining or 
defending, who asserts the affirmative of a particular claim or defence.  
Appellate Body Report, United States – Measure Affecting Imports of Woven Wool Shirts and Blouses 
from India , WT/DS33/AB/R, adopted 23 May 1997, p. 14. 
 
5 Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of Certain Dairy 
Products , WT/DS98/AB/R, adopted 12 January 2000, para. 120 (“ Korea – Dairy ”). WT/DS268/R 
Page A-178  
 
 process  objective of notifying the parties an d third parties of the nature of a 
complainant's case. 
. . . . 
Moreover, compliance with the requirements of Article 6.2 must be determined on 
the merits of each case, having considered the panel request as a whole, and in the 
light of attendant circumstances.6 
12. The jurisprudence has also made clear that the key “attendant circumstance” that must be 
considered in determining whether the requirements of Article 6.2 have been met is whether the 
defending party can demonstrate to the panel that it  has suffered prejudice during the course of the 
panel proceedings.  This will be discussed in greater detail below. 
 13. Therefore, before proceeding to the more specif ic elements of Article 6.2, it is worthwhile to 
summarize the general principles of Article  6.2 as enunciated by the Appellate Body: 
 
the terms of reference serv e the due process objective of providing notice to the 
defending party and the third parties of th e nature of the complainant’s case.  Any 
finding that Article 6.2 has been violated is tantamount to a finding that due process 
rights  have been violated; 
compliance with the requirements of Article  6.2 must be determined by considering 
the panel request as a whole , and not simply on the basis of isolated portions; and 
compliance must be assessed in the light of “attendant circumstances,” including 
actual prejudice  to the defendant during the course of the panel proceedings . 
14. With these general observations in mind, Argentina now turns to the specific arguments 
raised by the United Stat es in the present case. 
 
III. ARGENTINA’S “PAGE FOUR” CLAIMS ARE WITHIN THE PANEL’S TERMS OF 
REFERENCE 
A. US COMPLAINT  
15. The United States first alleges that page four  of Argentina’s Panel Requ est (“Page Four”) fails 
(i) to identify the specific measures at issue, (ii)  to identify the legal basis for the complaint, and 
(iii) to provide a narrative description of the legal basis of the complaint.7  As a result, the United 
States argues, Page Four does not comply with the requirement under Article 6.2 of the DSU to 
“present the problem clearly.” 
 
                                                      
 6 Appellate Body Report, United States – Countervailing Duties on Certain Corrosion-Resistant 
Carbon Steel Flat Products from Germany , WT/DS213/AB/R, adopted 19 December 2002, paras. 126 and 127 
(“Steel from Germany ”). 
7 US First Submission, para. 87.  More specifically, with respect to the alleged failure to identify the 
specific measures at issue, the United States argues that, “in the first paragraph on Page 4, while Argentina 
identifies five discrete ‘measures,’ it asserts that it is challenging only ‘certain aspects’ of those five ‘measures,’ 
and then fails to identify what those ‘certain aspects’ are.”  Id.  With respect to the alleged failure to identify the 
legal basis for the complaint, the United States argues that, “in the second paragraph on Page 4, Argentina 
indiscriminately lumps together various articles from three different WTO agreements, almost all of which 
consist of multiple paragraphs and contain multiple obligations.”  Id.  WT/DS268/R 
 Page A-179 
 
 
 B. RELEVANT WTO  JURISPRUDENCE  
1. Identification of measures 
16. The Appellate Body made clear in the EC – Computer Equipment  case that whether a panel 
request adequately “identifies the specific measure at issue” depends on whether it satisfies the due 
process requirements of Article 6.2.   Argentina quotes the relevant portion of that decision below: 
 
Whether these terms [(“LAN equipment” and “PCs with multimedia capacity,” which 
were included in the Panel request)] are sufficiently precise to “identify the specific 
measure at issue” under Article 6.2 of the DSU depends, in our view, upon whether 
they satisfy the purposes of the requirements of that provision.  
In European Communities – Bananas , we stated that: 
It is important that a panel request be sufficiently precise for two 
reasons:  first, it often forms the basis for the terms of reference of 
the panel pursuant to Article 7 of the DSU; and, second, it informs 
the defending party and the third parties of the legal basis of the 
complaint. 
The European Communities argues that the lack of precision of the term, LAN 
equipment, resulted in a violation of its ri ght to due process which is implicit in the 
DSU . . .   We . . . note that the term, LAN equipment, was used in the consultations 
between the European Communities and the United States prior to the submission of 
the request for the establishment of a panel . . . .  We do not see how the alleged lack 
of precision of the terms, LAN equipment and PCs with multimedia capability, in the 
request for the establishment of  a panel affected the rights of defence of the European 
Communities in the course  of the panel proceedings.  As the ability of the European 
Communities to defend itself was not prejudiced by a lack of knowing the measures 
at issue, we do not believe that the fundamental rule of due process was violated by 
the Panel.8 
17. This ruling has been followed in a number of cases, including most recently, in the 
Preliminary Ruling in the Canada Wheat Board  case, where the Panel stated: 
 
In considering whether a panel request can be said to have identified the specific, or 
precise, measures at issue, we find releva nt the statement by the Appellate Body [in 
the EC – Computer Equipment  case] that whether the actual terms used in a panel 
request to identify the measures at issu e are sufficiently precise to meet the 
requirements of Article 6.2 “depends . . . upon whether they satisfy the purposes of 
[those] requirements”.  We also find relevant the statement by the Appellate Body 
that “compliance with the requirements of Article 6.2 must be determined on the 
merits of each case, having considered the panel request as a whole, and in the light 
of attendant circumstances.” 
. . . . 
                                                      
8 Appellate Body Report, European Communities – Customs Classification of Certain Computer 
Equipment, WT/DS62, 67, 68/AB/R, adopted 22 June 1998, paras. 68-70 (“ EC – Computer Equipment ”)(first 
and third emphasis added).  This has been followed in other cases, including Canada Aircraft II :  Panel Report, 
Canada – Export Credits and Loan Guarantees for Regional Aircraft, WT/DS222/R, adopted 19 February 2002. WT/DS268/R 
Page A-180  
 
 Whether sufficient information is provided on the face of the panel request will 
depend, as noted above, on whether the information provided serves the purposes of 
Article 6.2, and in particul ar its due process objective, as well as the specific 
circumstances of each case, including the type of measure that is at issue.9  
18. Thus, in assessing whether Argentina’s Pa nel Request adequately identified the specific 
measures at issue, the Panel must evaluate the fundamental underlying issue of whether the request satisfies the due process objective of Article 6.2.  In this regard, the Panel must consider whether the 
specific formulation used by Argentina on Page Four of its panel request, when that document is read 
as a whole, caused actual prejudice to the United States during the course of the Panel proceedings.  
This issue will be examined  in greater detail below. 
 
2. Identification of the legal basis of the complaint 
(a) Claims versus Arguments 
19. WTO jurisprudence establishes that a request for the establishment of a panel must set out 
claims
, rather than the arguments  in support of those claims.  In EC – Bananas , the Appellate Body 
upheld this principle in unambiguous terms: 
 
We accept the Panel's view that it was suff icient for the Complaining Parties to list 
the provisions of the specific agreements  alleged to have been violated without 
setting out detailed arguments as to which sp ecific aspects of the measures at issue 
relate to which specific provisions of t hose agreements.  In our view, there is a 
significant difference between the claims  identified in the request for the 
establishment of a panel, which establish the panel's terms of reference under Article 
7 of the DSU, and the arguments  supporting those claims, which are set out and 
progressively clarified in the first written submissions, the rebuttal submissions and 
the first and second panel meetings with the parties.10 
20. Thus, to comply with Article 6.2 of the DSU, a complaining party need only “list the 
provisions of the specific agreements alleged to have  been violated.”  There is no obligation to set out 
“detailed arguments as to which specific aspects of the measures at issue relate to which specific provisions of those agreements.”
11  Argentina’s Panel Request provid es the detail required by Article 
6.2.  As the United States is well aware, there is no need for Argentina to develop the arguments that 
support the claims identified in its panel request. 
 
(b) Minimum Requirements 
21. The Appellate Body in the Korea – Dairy  case affirmed this principle.  Commenting on its 
earlier ruling on this issue in EC – Bananas , the Appellate Body in Korea – Dairy  noted that it: 
 
[A]greed with the conclusion of the panel th at, in that case, the listing of the articles 
of the agreements claimed to have been violated satisfied the minimum  requirements 
of Article 6.2 of the DSU.  In view of all the circumstances surrounding that case, we 
                                                      
9 Canada – Measures Relating to Exports of Wheat and Treatment of Imported Grain:  Preliminary 
Ruling by the Panel , WT/DS276/12 (21 July 2003) paras. 17 and 20. 
 10 Appellate Body Report,  European Communities – Regime for the Importation, Sale and Distribution 
of Bananas, WT/DS27/AB/R, adopted 25 September 1997, para. 141 (“ EC – Bananas ”).   This test has been 
applied in many subsequent WTO cases.  
11 Id.  WT/DS268/R 
 Page A-181 
 
 
 concurred with the panel that the European  Communities had not been misled as to 
what claims were in fact being asserted against it as respondent.12 
22. The Appellate Body added, in a passage also quoted by the United States in its first 
submission, that:  
 
There may be situations where the simple lis ting of the articles of the agreement or 
agreements involved may, in the light of attendant circumstances, suffice to meet the standard of clarity  in the statement of the legal ba sis of the complaint.  However, 
there may also be situations in which the circumstances are such that the mere listing 
of treaty articles would not satisfy the standa rd of Article 6.2.  This may be the case, 
for instance, where the articles listed estab lish not one single, distinct obligation, but 
rather multiple obligations.  In such a situat ion, the listing of articles of an agreement, 
in and of itself, may fall short of the standard of Article 6.2.13 
23. The Appellate Body in Korea –  Dairy  concluded that: 
 
[W]hether the mere listing of the articles claimed to have been violated meets the 
standard of Article 6.2 must be examined on a case-by-case basis.  In resolving that question, we take into account whether the ability of the respondent to defend itself 
was prejudiced, given the actual course of the panel proceedings, by the fact that the 
panel request simply listed the provisions claimed to have been violated . 14   
24. Therefore, even the “mere listing” of the provision claimed to have been violated can satisfy 
the “minimum prerequisite” of Article 6.2.  The “m ere listing” will be consider ed to be insufficient 
only in cases where the defending party is able to  demonstrate to the Panel that it has suffered actual 
prejudice during the course of the panel proceedings.  In this case, when Argentina’s Panel Request is 
read as a whole, it is clear that Argentina did far more than merely list provisions. 
 
(c) Prejudice to the Defending Party 
25. Moreover, even if the Article cited in the panel request contains multiple obligations, the 
mere listing  of such an Article will still meet the requirem ents of Article 6.2, absent actual prejudice .  
Even in the Korea – Dairy  case, where the Appellate Body found that the EC panel request should 
have been more detailed, it denied Korea’s request under Article 6.2: 
 
Korea failed to demonstrate to us that the mere listing of the articles asserted to have 
been violated has prejudiced its ability to defend itself in the course of the Panel proceedings .  Korea did assert that it had sustained prejudice, but offered no 
supporting particulars in its appellant's submission nor at the oral hearing.  We, 
therefore, deny Korea's appeal relating to the consistency of the European 
Communities’ request for the establishment of a panel with Article 6.2 of the DSU.
15 
                                                      
12 Appellate Body Report, Korea –  Dairy , para. 123. 
13 Id. at para. 124. 
14 Id. at para. 127 (emphasis added). 
 15 Id. at para. 131 (emphasis added).  The Korea – Dairy  report is of particular relevance since the 
complaining party in that case invoked Articles that had contained multiple obligations.  As noted by the 
Appellate Body: 
[W]e note that the European Communities’ request for a panel, after identifying the Korean 
safeguard measure at issue, listed Articles 2, 4, 5 and 12 of the Agreement on Safeguards and WT/DS268/R 
Page A-182  
 
 26. The EC – Bed Linen  panel summarized the WTO case law as follows:   
 
It seems that even if the panel request is insufficient on its face, an allegation that the  
requirements of Article 6.2 of the DSU are not met will not prevail where no 
prejudice is established . 
In essence, the Appellate Body seems to  set a two-stage test to determine the 
sufficiency of a panel request under Article 6.2 of the DSU: first, examination of the 
text of the request for establishment itself, in  light of the nature of the legal provisions 
in question; second, an assessment of whether the respondent has been prejudiced by 
the formulation of claims in the request for establishment, given the actual course of the panel proceedings.
16 
27. The requirement that the defending party must demonstrate actual prejudice  has been upheld 
in numerous cases, and is recognized by the United States.  The US statement in the Canada Wheat 
Board  case asserted this point vigorously: 
 
[T]he Appellate Body in EC – Bananas made clear that a panel request may 
adequately state a claim if the request si mply cites the pertinent provision of the 
WTO agreement. 
The Appellate Body confirmed this construction in Korea – Dairy . The Appellate 
Body did find a problem with the panel requ est: namely, the request cited too broadly 
to the Agreement on Safeguards  and Article XIX of the GATT 1994, so that it was 
difficult to determine which ob ligations in those provisions were at issue.  But, the 
Appellate Body repeated the distinction, set forth in Bananas, between claims and 
arguments.  And, even though the panel request in Korea – Dairy was insufficiently 
precise, the Appellate Body nonetheless did not dismiss the claims . . . .  
[E]ven if a panel request is insufficiently detaile d “to present the problem clearly,” the 
panel is not automatically deprived of juri sdiction over the matter.  Rather, the panel 
must examine, based on the “particular circumstances of the case,” whether the defect 
has prejudiced the ability of the responding party to defend itself.  In Korea – Dairy, 
                                                                                                                                                                     
Article XIX of the GATT 1994.  Article XIX of the GATT 1994 has three sections and a total 
of five paragraphs, each of which has at least one distinct obligation.  Articles 2, 4, 5 and 12 of 
the Agreement on Safeguards also have multiple paragraphs, most of which have at least one distinct obligation. The Agreement on Safeguards in fact addresses a complex multi-phased 
process from the initiation of an investigation, through evaluation of a number of factors, 
determination of serious injury and causation thereof, to the adoption of a definitive safeguard measure. 
 
 Id.  at para. 129.  The Panel request was nevertheless found to be consistent with DSU Article 6.2 
because, as noted above, Korea could not establish actual prejudice.  Id. at para. 131.   The US – Lamb 
Safeguards  panel, commenting on the Appellate Body decision in Korea – Dairy , noted that:  “the Appellate 
Body identified these provisions [in the Safeguards Agreement] as an example of a situation in which the mere 
listing of articles, in and of itself, may fall short of the standard of DSU Article 6.2 (which seems to imply that it 
may suffice in other situations).”  Panel Report, United States – Safeguard Measures on Imports of Fresh, 
Chilled or Frozen Lamb Meat from New Zealand and Australia , WT/DS177,178/R, adopted 16 May 2001, 
para. 5.27 (“ US – Lamb Safeguards ”).
 
 16 Panel Report, European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen 
from India , WT/DS141/R, adopted 12 March 2001, paras. 6.25-6.26 (“ EC – Bed Linen ”)(emphasis added).   WT/DS268/R 
 Page A-183 
 
 
 the Appellate Body found that even althou gh the panel request was inadequate, the 
responding party had failed to show prejudice, and dismissal was not warranted.17 
28. Thus, as the United States itself correctly recognizes, a defending party must demonstrate 
actual prejudice during the course of the panel proceedings as a prerequisite to successfully challenge 
a panel request under DSU Article 6.2. 
 29. Moreover, as the Party asserting the DSU Article 6.2 claim, the United States has the burden 
of demonstrating that it suffered prejudice in this  case because it was unable to defend its interest.  
The United States has failed to discharge this burden . 
 
3. Narrative description 
30. Despite US claims to the contrary, Article 6.2 does not require a “narrative description.”  
Rather, as noted above, Article 6. 2 requires identification of the me asure, as well as a brief summary 
of the legal basis of the complaint, sufficient to present the problem clearly.  Where the complaining 
party included a narrative description in its pane l request, however, the panel has in some cases 
considered that description to be relevant in determining whether a complaining party has met the 
obligations covered by Article 6.2. 
 
31. For example, the High Fructose Corn Syrup Panel considered the fact that the Panel request 
set forth sufficient factual background as to the nature of the dispute: 
 
The United States’ request for establishment in this case does not merely list the 
articles alleged to have been violated. The request also sets forth facts and 
circumstances describing the substance of the dispute.  In our view, the request is 
sufficiently detailed to set forth the legal ba sis of the complaint so as to inform the 
defending Member, Mexico, and potential th ird parties of the claims made by the 
United States. 
We find that Mexico has not demonstrated to us that it was prejudiced in its ability to 
defend its interests in the course of the proceedings in this dispute. Mexico asserts 
that it had to wait until the first written submission of the United States, more than 
four months after the request for establis hment, to have a clear idea of what the 
United States’ arguments in support of its assertions were.  Mexico argues that as a 
result of the failure of the United States to  present the problem clearly and specify the 
factual and legal basis for the request, it was obliged to spend that time working “in 
the dark”.  In its comments on interim review, Mexico asserts that this resulted in the 
expenditure or squandering of resources that  could otherwise have been devoted to 
preparing a timely defence. 
In our view, the totality of the United States ’ request for establishment sets out claims 
with sufficient specificity to present the problem clearly and allow Mexico to defend 
its interests.  Mexico’s asser tions as to the effect of th e alleged inadequacies in the 
request for establishment do not, in our view , rise to the level of demonstrating that 
Mexico’s rights of defense in this panel proceeding were affected, given the actual 
course of the panel proceedings.18 
                                                      
 17 Oral Statement of the United States at the First Panel Meeting,  Canada – Measures Relating to 
Exports of Wheat and Treatment of Imported Grain , WT/DS276 (6 June 2003), paras. 6-8.  
 18 Panel Report, Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the 
United States , WT/DS132/R, adopted 24 February 2000, paras. 7.15-7.17 (“ High Fructose Corn Syrup ”). WT/DS268/R 
Page A-184  
 
 32. Thus, the complaining party may point to the existence of a narrative description in a panel 
request to counter claims that a defending party has been prejudiced. 
 
C. T
HE CHALLENGED MEASURES AND THE LEGAL BASIS OF ARGENTINA ’S COMPLAINT HAVE 
BEEN ADEQUATELY IDENTIFIED  
33. As an initial observation, Argentina notes that the US laws, regulations, policies and 
procedures identified in its panel request are limi ted, specific, and identified with precision.  
Argentina has referred to the provisions of the US statutory, regulatory and administrative regime – 
including the US practice – that deal with suns et reviews in antidumping cases, which together 
represent a small subset of US trade remedy laws, regulations and administrative procedures. 
 
34. With respect to the requirement to “identify the specific measure at issue,” the Canada Wheat 
Board  case is instructive, in that it sets out the stan dard as to when a measure will not be considered 
as adequately identified.  It is thus useful to consider Argentin a’s Panel Request in light of the 
Canada Wheat Board standard. 
 35. In Canada Wheat Board , the US panel request used such formulations as “the laws, 
regulations, and actions of the Government of Ca nada and the [Canadian Wheat Board] related to 
exports of wheat.”
19  The Panel found that this formulation fe ll short of the standard set out in Article 
6.2, since the US request, “by creating considerable uncertainty as to the identity, number and content 
of the laws and regulations which it [was] challeng ing, [did] not provide adequate information on its 
face to identify the specific measures at issue.”20  Therefore, the US panel request left the defending 
party “little choice . . . but to undertake legal research  and exercise judgement in order to establish the 
precise identity of the laws and regula tions implicated by the panel request.”21  The Canada Wheat 
Board  Panel therefore concluded that, “taken as a whole, the United States’ panel request [did] not 
sufficiently establish the identity of the ‘laws’ and ‘regulations’ at issue . . . .”22 
 
36. In contrast to the vague references to “laws and regulations related to exports of wheat” that 
were found to be insufficient in the Canada Wheat Board  panel request, Page Four of Argentina’s 
Panel Request precisely identifies the US meas ures at issue, specifically enumerating: 
 
• Sections 751(c) and 752 of the Tariff Act of 1930, as amended, codified at Title 19 of the United States Code §§ 1675(c) and 1675a; and the US Statement of Administrative Action (regardi ng the Agreement on Implem entation of GATT Article 
VI) accompanying the Uruguay Round Agreem ents Act (the SAA), H.R. Doc. No. 
103-316, vol. 1; 
• The Department's Policies Regarding the Conduct of Five-year ("Sunset") 
Reviews of Anti-Dumping and Countervailing Duty Orders ; Policy Bulletin, 63 
Federal Register 18871 (16 April 1998) (Sunset Policy Bulletin); 
• The Department's sunset re view regulations, codified at Title 19 of the United 
States Code of Federal Regulations § 351.218; and the Commission's sunset review 
                                                     
 
19 Canada – Measures Relating to Exports of Wheat and Treatment of Imported Grain:  Preliminary 
Ruling by the Panel , WT/DS276/12 (21 July 2003), para. 7. 
20 Id. at para. 24. 
21 Id.  Canada had argued that “any number of laws, regulations and actions may be related to the 
export of wheat but have no relevance to the instant claim.”  Id. at para. 8.  It said that there were “dozens of 
‘laws and regulations’ that could be the subject of the United States panel request as worded.”  Id. 
22 Id. at para. 28.  WT/DS268/R 
 Page A-185 
 
 
 regulations, codified at Title 19 of the United States Code of Federal Regulations §§ 
207.60-69 (Subpart F).23 
37. Given this degree of precision, one may safely conclude that the United States has no need to 
“undertake legal research” or “exercise judgment” to  establish the “precise identity of the laws and 
regulations implicated by the panel request.”  
  38. Moreover, as noted above, the Appellate Body ha s made clear that the panel request has to be 
read “as a whole.”  The New Oxford Dictionary of English  defines “whole” as “all of; entire.”  This 
means that the Panel needs to read “all of” Argentin a’s Panel Request (i.e., the “entire” panel request), 
and cannot focus exclusively on Page Four or on the use of the word “also.”  
 
1. Argentina’s Panel Request must be read as a whole 
39. Page Four of Argentina’s Pa nel Request cannot be read in isolation from the more specific 
claims enumerated in Sections A and B.  As th e United States acknowledged, Argentina made this 
clear at the DSB meeting of 19 May 2003.
24 
 
40. Instead of divorcing Page Four from the rest of the request, the panel needs to consider the 
document in its entirety – the factual description, th e specific claims set out in Sections A and B, and 
the concluding sections on Page Four.  Together, they present the entirety of Argentina’s claims.  
Read as a whole, Argentina’s Panel Request properly  identifies the specific US measures at issue. 
 
41. The US claim appears to hinge largely on the use of the word “also” on Page Four, which, 
according to the United States, suggests that the WTO inconsistencies alluded to on Page Four are in 
addition to, and different from, the claims set forth in Section A and B.25 
 
42. Three points should be noted here.  First, according to Webster’s Collegiate Dictionary , the 
word “also” means, among other things, “likewise, ” which in turn means “in a like manner.”  Put 
more succinctly, the word “also” is synonymous with the term “moreover.”  Thus, Argentina used the 
word “also” on Page Four to convey that it was el aborating on previous pages, rather than, as the 
United States alleges, describing something different  than what was enumerated on the previous pages 
of the panel request.26  Second, it is important to consider the context in which the word “also” 
appeared.  The request said “Argentina also consid ers” that certain US laws are WTO-inconsistent, 
not that Argentina considers that “certain US laws are also WTO-inconsistent.”  In other words, even 
if one accepted the US request to read Page Four in  isolation of the rest of the panel request, the word 
“also”  (which means “likewise/moreover”) related to the views of Argentina, rather than to the 
enumeration of a completely new set of measures.  Third, Argentina’s referen ce to US laws in that 
sentence was not completely open-ended, as the United States suggests, but rather was immediately 
qualified by the term “related to the determinations of the Department and the Commission.”  Argentina describes the “determinations of the Department and the Commission” in detail throughout the panel request – in the introductory factual se ction, in Sections A an d B, and on Page Four. 
                                                     
 
23 Argentina’s Panel Request, Page Four. 
24 US first submission, para. 101. 
25 US first submission, para. 88 and at n.103. 
26 Argentina confirmed this in its statement before the DSB at the 19 May 2003, meeting:  “It was 
Argentina’s intention (as the panel request clearly provided) to set forth the particular claims in the paragraphs 
contained in Sections A and B of the document.”  Dispute Settlement Body:  Minutes of Meeting held on 
19 May 2003, WT/DSB/M/150, para. 32.  Thus, Sections A and B contain the essence of Argentina’s claims.  Because Argentina’s Panel Request must be read as a whole, however, Sections A and B cannot be interpreted 
independently from Page Four.  Accordingly, Page Four of the panel request elaborates on the claims provided 
in Sections A and B, as indicated by the word “also.” WT/DS268/R 
Page A-186  
 
  
43. Read “as a whole,” Argentina’s Panel Request thus identified the US m easures at issue with 
specificity, including those enumerated on Page Four. 
 
44. Equally important, the United States has not sustained any prejudice.  In fact, in crafting its 
preliminary objection, the United States turns the principle of DSU Article 6.2 on its head.  Indeed, 
rather than reading Argentina’s Panel Request as a whole, as the Appellate  Body indicated is a 
requirement, the United States artificially severs Page Four of Argentina’s request, parses the isolated 
language on Page Four, and then contends that in  this context the United States cannot discern the 
nature of the particular claims on Page Four.  Th e US position is untenable.  Considering the panel 
request as a whole, it is quite clear which violat ions are being alleged by Argentina.  Indeed, 
Argentina has set out the WTO-inconsistencies with precision.  
 2. A full narrative description, while not required, has been provided 
45. Argentina recalls that Article 6.2 does not specifically require a “narrative description.”  
Nonetheless, as in High Fructose Corn Syrup , Argentina’s Panel Request, read as a whole, sets out 
detailed factual background as to the nature of the di spute.  The first part of the panel request sets out 
the facts such as the conclusions from the original investigation, the conclusions of the sunset review, 
the determination to expedite, and th e determination to continue the order.  The request also includes 
reference to determinations of the US Departme nt of Commerce and the US International Trade 
Commission.  Argentina’s request “does not merely li st the articles alleged to have been violated. The 
request also sets forth facts and circumstances describing  the substance of the dispute. ”
27  
Consequently, as in High Fructose Corn Syrup , the “request is sufficiently detailed to set forth the 
legal basis of the complaint so as to inform the de fending Member . . . and potential third parties of 
the claims made . . . .”28 
 
3. The United States has not suffered prejudice during the course of the panel proceedings 
46. Although the “no prejudice” issue first arises in the context of the US complaints about Page 
Four, the failure of the United States to substantiate prejudice undermines all  of its claims under 
Article 6.2.  Therefore, Argentina’s comments be low apply to all aspects of the US Preliminary 
Request. 
 47. As noted above, the EC – Bed Linen  panel provided a succinct summary of the requirement 
under Article 6.2 to demonstrate prejudice:  “an alle gation that the requirements of Article 6.2 of the 
DSU are not met will not prevail  where no prejudice is established.”
29 
 
48. Moreover, it should be recalled that the test applied by the Appellate Body under Article 6.2 
includes an assessment as to whether the responding pa rty was prejudiced “given the actual course of 
the panel proceedings.”30  The “panel proceedings” in the present case have barely begun – indeed, 
the first meeting of the panel with th e parties has not even taken place.   
 
49. Prior Panels have rightly determined  that whether there is prejudice during  the panel 
proceedings can only be determined at the end  of such proceedings.  For example, this was the 
position taken by the Panel in Canada Aircraft : 
 
                                                      
27 Panel Report, High Fructose Corn Syrup , para. 7.15 (emphasis added). 
28 Id. 
29 Panel Report, EC – Bed Linen , para. 6.25 (emphasis added). 
30 Id. at para. 6.26.  WT/DS268/R 
 Page A-187 
 
 
 Canada asked the Panel to rule on th e consistency of Brazil’s request for 
establishment with Article 6.2 of the DSU pr ior to the deadline for the parties’ first 
written submissions.  We recall our finding that there is no requirement in the DSU 
for panels to rule on preliminary issues prio r to the parties’ first written submissions.  
Nor is there any established practice to this effect, for there are numerous panel 
reports where rulings on preliminary issues ha ve been reserved until the final report.  
Furthermore, we have stated above that we will decide this preliminary issue by 
determining whether any alleged imprecision  in Brazil’s request for establishment 
prejudiced Canada’s due process right of defence during the panel process.  We can 
necessarily only undertake such an analysis at the end of the panel process .31 
50. A similar ruling was made by the Panel in Thailand H-Beams .  In that case, Thailand raised 
its Article 6.2 claim in its first written submission, just  at the United States did in the present case.  As 
in Canada Aircraft , the Thailand H-Beams  Panel said that it was too soon to determine whether the 
defending party had suffered prejud ice during the panel proceedings: 
 
At the first substantive meeting, we denied Thailand’s request for an immediate 
preliminary ruling . . . and indicated that we would issue our ruling and supporting 
reasons in the Panel report.  Referri ng to the Appellate Body report in Korea – Dairy , 
we informed the parties that we would evaluate whether, given the actual course of 
the Panel proceedings , Thailand was prejudiced in its ability to defend itself by the 
alleged lack of specificity of the Panel request.32 
51. Regardless of when any determination of prej udice should be made, the more important point 
is that the United States has failed to substantiate any  prejudice actually sustained by the 
United States.    
52. Indeed, it is striking that in the extremel y long US submission on the panel’s terms of 
reference, the United States offers nothing more than  a few curt statements that simply assert, but do 
not substantiate, a claim of prejudice.   
 
53. The United States is evidently aware that its  inability to demonstrate actual prejudice is a 
major – indeed fatal – weakness in its Article 6.2 re quest.  The United States would seemingly prefer 
that the Panel ignore or skim over the lack of prejudice in this case.  Unfortunately for the US 
position, the Appellate Body has made clear that ac tual prejudice is a prer equisite to a successful 
challenge to a panel request under Article 6.2.   
 54. How has the United States “substantiated” its claim of prejudice?  The United States argues 
only that its “ability . . . to begin preparing its defe nse was delayed because, due  to Argentina’s failure 
to comply with Article 6.2, the United States  did not ‘know what case it has to answer.’”
33 
 
55. The cases have ruled that such asserti ons simply do not constitute demonstrated or 
substantiated prejudice for the purposes of DSU Article 6.2.  For example, as the High Fructose Corn 
Syrup  decision stated, complaints about having to “spend time working in the dark” are insufficient to 
establish a violation of DSU Article 6.2.34  Instead, the actual prejudice that must be shown must rise 
                                                      
 31 Panel Report, Canada – Measures Affecting the Export of Civilian Aircraft , WT/DS70/R, adopted 
20 August 1999, para. 9.33 (emphasis added).  
 32 Panel Report, Thailand – Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy 
Steel and H-Beams from Poland , WT/DS122/R, adopted 5 April 2001, paragraph 7.1 (“ Thailand –  H-Beams ”) 
(second emphasis added).  
33 US First Submission, paras. 97 and 110. 
34 Panel Report, High Fructose Corn Syrup , para. 7.16. WT/DS268/R 
Page A-188  
 
 to the level of a violation of due process rights , as the Appellate Body in EC – Computer Equipment  
made clear.
35 
 
56. Moreover, a review of the US first submission confirms that in no way have the “due process 
rights” of the United States been violated.  Th e United States has provided detailed (albeit 
unconvincing) argumentation on the full range of clai ms, demonstrating clearly that the United States 
is fully aware of Argentina’s claims, an d has responded substantively to them. 
 
57. Prior panels have found that such substantive submissions fully refute any claim that the 
defending party was “prejudiced.”  In US – Lamb Safeguards , the Panel found that: 
 
[T]he US first written submission and its oral statement at the first substantive 
meeting contain detailed and comprehensive arguments rebutting the complainants' 
arguments on all claims . . . .   
. . . . 
In its answers to questions and in its re buttal submission, the United States again 
provided very detailed and comprehensive arguments on the claims before us. 
In light of the foregoing, therefore, we do not believe that the United States has 
submitted sufficient “supporting particulars” to persuade us of its assertion that it has 
been prejudiced in its ability to defend itself  in the actual course of the proceedings in 
this dispute.  As noted above, as a matter of  fact, the US submissions have been very 
thorough and detailed. . . .  Our conclusion that the United States has not submitted 
sufficient supporting particulars to establish that it suffered prejudice in its ability to 
defend itself in the actual course of this proceeding confirms our above consideration 
that the panel requests in this case were sufficiently specific to meet the requirements 
of DSU Article 6.2.36 
58. The Korea Beef Panel reached a similar conclusion: 
 
After reviewing Korea’s submissions, its an swers to the parties’ as well as to the 
Panel’s questions during the course of the present proceedings, the Panel remains of 
the opinion that Korea clearly understood the matter at issue.  The Panel considers 
that Korea was not misled by the requests for establishment of panels . . . .37 
59. As in US – Lamb Safeguards , the United States in the present case has provided “very 
detailed and comprehensive arguments” to respond to Argentina’s claims.  As with the submissions in Korea Beef , the US first submission in this case also  shows that the United States has “clearly 
understood the matters at issue” and it has “not been misled” by Argentina’s Panel Request.   
 
60. The “thorough and detailed” substantive response submitted by the United States in its first 
submission negates any notion of actual prejudice to the United States.  The Panel should have little difficulty concluding that the United States has not de monstrated sufficient “supporting particulars” to 
prove its assertion that it has been prej udiced in its ability to defend itself. 
 
                                                     
 
35 Appellate Body Report, EC – Computer Equipment , para. 70. 
 36 Panel Report, US – Lamb Safeguards , paras. 5.51-5.53.  
 37 Panel Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef , 
WT/DS161,169/R, adopted 10 January 2001, para. 816 (“ Korea – Beef ”).  WT/DS268/R 
 Page A-189 
 
 
 61. It should also be noted that previous panels examining the issue of “prejudice” under DSU 
Article 6.2 have also considered, as a highly relevant factor, whether there was any prejudice to the 
interests of third parties by any alleged deficien cies in the panel request.  For example, in Thailand H-
Beams , the Appellate Body said that “those Members of  the WTO who intend to participate as third 
parties in panel proceedings must be inform ed of the legal basis of the complaint.”38  Similarly, in EC 
– Bed Linen , the Panel found that the fact that the th ird parties were able to make substantive 
submissions on the issues “suggests a lack of prejudice to third parties’ interests in this dispute.” 39 
 
62. In the present case, none of the Third Parties raised any concerns about any aspects of 
Argentina’s claims.   Indeed, the European Communities, far from expressing any concerns about the 
alleged lack of clarity of Argentina’s request, stated to the contrary that the “Panel should not follow 
the United States suggestion to consider page 4 . . . in isolation from the rest of the request.  Rather, in 
order to establish whether the cond itions of Article 6.2 DSU are met,  the Panel should consider the 
request as a whole.”40  Thus, to paraphrase the Appellate Body in Thailand H-Beams,  the EC, which 
is participating as a third party in  the panel proceedings, obviously was  informed of the legal basis of 
Argentina’s complaint.  
63. Argentina also notes that this case is just one of a series of challenges made by various WTO 
Members to the “sunset review” provisions of US law.  Argentina does not assert that these other 
disputes can be used to determine whether the current panel request complies with Article 6.2.  But it 
does raise a broad and important point:  the United States has been engaged in a series of WTO disputes over its sunset review laws, and is intimately  familiar with all lines of  challenge, and all lines 
of defense.  To accept that the United States wa s “working in the dark” while waiting for Argentina’s 
submission is simply not credible. 
 
64. In summary, the United States has “assert[ed] that it had sustained prejudice, but [has] offered 
no supporting particulars . . . .”
41  Consequently, the US request fails to demonstrate any prejudice, let 
alone prejudice that has violated the due process rights of the United States in these proceedings. 
 
                                                      
38 Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes and Sections of Iron or 
Non-Alloy Steel and H-Beams from Poland , WT/DS122/AB/R, adopted 5 April 2001, para. 88 (“ Thailand –  H-
Beams ”). 
 39 Panel Report, EC – Bed Linen , para. 6.28: 
We therefore turn next to the question whether the European Communities, or any of the third 
parties, has been prejudiced by this lack of sufficient clarity, “given the actual course of the 
panel proceedings”.  . . .  [W]hile it is possible that potential third parties were not alerted to 
the fact that India intended to pursue the issue of consideration of all imports as dumped under Article 3.4 of the AD Agreement, it was clear from the face of the request for establishment 
that India was pursuing this issue under Article 3.5 of that Agreement.  Moreover, all three 
third parties did address the issue of whether the European Communities acted inconsistently with the AD Agreement in considering all imports as dumped.  In our view, this suggests a 
lack of prejudice to third parties’ interests in this dispute.  While it is not clear whether 
potential third parties understood the claim to be asserted under Article 3.4 or Article 3.5, the substance of the issue was clearly apparent to them, and was addressed by those Members that 
participated as third parties.  The specific provision of the AD Agreement alleged to have 
been violated is, in our view, of less importance than the question whether the particular practice, consideration of all imports as dumped, is permitted by the AD Agreement or not, 
and that question has clearly been addressed by all parties and third parties in this dispute, and 
was clearly put before us by the request for establishment.  
40 Third Party Submission of the European Comm unities, WT/DS268 (14 November 2003), Section 2. 
41 Appellate Body Report, Korea – Dairy , para. 131. WT/DS268/R 
Page A-190  
 
 65. The inability of the United States to prove actual prejudice during the course of the panel 
proceedings vitiates the legal basis for all
 of the claims made by the United States under Article 6.2. 
 IV. SECTIONS B.1, B.2 AND B.3 OF ARGENTINA’S CLAIMS ARE WITHIN THE 
PANEL’S TERMS OF REFERENCE 
A. US
 COMPLAINT  
66. According to paragraph 104 of the US first submission, the “defect” in Sections B.1, B.2 and 
B.3 is that “Sections B.1 and B.2 allege an incons istency with Article 6 of the AD Agreement in its 
entirety, while Section B.3 alleges an inconsiste ncy with Article 3 of the AD Agreement in its 
entirety.”  Articles 3 and 6 each consist of multip le paragraphs and contain multiple obligations.  
Consequently, the United States argues, Sections B.1,  B.2, and B.3 do not comply with the Article 6.2 
requirement to “present the problem  clearly,” because  “it is impossible to determine from the panel 
request the obligation(s) with which US law or th e ITC’s actions allegedly are inconsistent . . . .”42 
 
B. RELEVANT WTO  JURISPRUDENCE  
67. The relevant WTO case law applicable to this issue has been set out above, in Section III.B.  
For the purposes of the complaints that have been made by the United States regarding Sections B.1, 
B.2 and B.3, that jurisprudence may be summarized briefly as follows: 
 
a request for the establishment of a panel must set out claims , but not the arguments  
in support of those claims; 
the listing of the articles of the agreements claimed to have been violated satisfied the 
minimum  requirements of Article 6.2 of the DSU; 
in assessing the consistency of the panel reque st with Article 6.2, the Panel must take 
into account whether the ability of the respondent to defend itself was prejudiced, 
given the actual course of the panel procee dings, by the fact that the panel request 
simply listed the provisions claimed to have been violated; and 
as a related point, even if the Article cited in the panel request contains multiple 
obligations, the mere listing of such an Article will still meet the requirements of 
Article 6.2, absent actual prejudice.  
C. ARGENTINA ’S POSITION  
68. With respect to Article 6, Argentina in itially notes that it has challenged the WTO-
consistency of a sunset review conducted by the United States.  Sunset reviews are governed by Article 11 of the Agreement.  As the United States is well aware, Article 11.4 provides in part that:  
“The provisions of Article 6 regarding evidence an d procedure shall apply to any review carried out 
under this Article.” 
 
69. The reference in Article 11.4 to “the provisio ns of Article 6” make clear that the drafters 
intended Article 6 to apply – to quote the US comp laint – “in its entirety” to sunset reviews.  By 
listing Article 11 – and indeed, Article  11.4 – in sections B.1 and B.2, Argentina put the United States 
on notice that it would be making claims under Article  6.  Yet the United States made no objection to 
                                                     
 
42 US First Submission, para. 104.  WT/DS268/R 
 Page A-191 
 
 
 Argentina’s references to Article 11, or  even to Article 11.4.43  In addition, to provide even greater 
precision, Argentina listed Article 6 itself in sections B.1 and B.2.  Thus, Argentina has stated its 
Article 6 claim clearly and unambiguously. 
 
70. With respect to Article 3, Argentina’s claim B.3 challenges specific provisions of US sunset 
law which, by their terms, relate to the temp oral period in which the United States makes its 
likelihood of injury determination.  In this regard, the panel request references not only Articles 11.1 
and 11.3, but also Article 3.  Argentina alleged violations of Article 3 provisions given the general 
application of Article 3 to review s conducted under Article 11.3, and the role of these provisions in 
framing the time period for the injury determination in  a sunset review.  There is no doubt that these 
provisions are directly relevant to the issue of the temporal  element as to when  injury could be 
considered as “likely” to continue or recur. 
 
71. Argentina also notes that its Article 3 claims on this issue were first raised with the United 
States over a year ago.  Indeed, the wording of Section B.3 of Argentina’s consultations request is 
virtually identical to Section B.3 of its panel requ est.  Section B.3 of Argentina’s October 10, 2002, 
request for consultations states: 
 
The US statutory requirements that the Commission determine whether injury would 
be likely to continue or recur “within a reasonably foreseeable time” (19 USC. § 
1675a(a)(1)) and that the Comm ission “shall consider that the effects of revocation or 
termination may not be imminent, but may manifest themselves only over a longer 
period of time” (19 USC. § 1675a(a)(5)) are inconsistent with Articles 11.3 and 3 of 
the Anti-dumping Agreement.44 
72. Section B.3 of Argentina’s Panel Request states: 
 
The US statutory requirements that the Commission determine whether injury would 
be likely to continue or recur “within a reasonably foreseeable time” (19 USC. § 1675a(a)(1)) and that the Comm ission “shall consider that the effects of revocation or 
termination may not be imminent, but may manifest themselves only over a longer 
period of time” (19 USC. § 1675a(a)(5)) are inconsistent with Articles 11.1, 11.3 and 
3 of the Anti-Dumping Agreement. 
73. As set forth above, the United States has been on notice for over a year that Argentina 
considered this statutory provision to be incons istent with “Article 3” of the Anti-Dumping 
Agreement.  Indeed, the extensive and detailed ques tions presented by Argentina to the United States 
prior to the WTO consultations on 14 November  and 17 December 2002, provide additional evidence 
that the United States was “aware of the claims pr esented by [Argentina], sufficient to allow it to 
defend itself.” 
 
74. Argentina provided 86 written questions to th e United States during the consultations, with 
about ten questions relating to the Article 3/Ar ticle 11.3 relationship and/or the US statutory 
provisions at issue.  The United States did not provi de a written response to Argentina’s questions and 
                                                     
 
43 The only other sentence in Article 11.4 states:  “Any such review shall be carried out expeditiously 
and shall normally be concluded within 12 months of the date of initiation of the review.”  The Commission’s Sunset Determination, which is at issue in Sections B.1 and B.2, was commenced in July 2000 and completed in 
June 2001, i.e., within twelve months.  This renders the second sentence of Article 11.4 obviously inapplicable 
in this dispute.  Consequently, the only provision of Article 11.4 which could possibly be relevant is the first sentence, which, as noted above, incorporates by reference Article 6 “in its entirety.” 
44 Request for Consultations by Argentina, United States – Sunset Reviews of Anti-Dumping Measures 
on Oil Country Tubular Goods from Argentina , WT/DS268/1 (10 October 2002). WT/DS268/R 
Page A-192  
 
 the United States declined to provide substantive responses during consultations.  Nor did the United 
States provide notice to Argentina that it did not understand the nature of the questions posed by 
Argentina in this regard. 
 
75. Argentina is surprised that the United States  has annexed these questions to its submission 
(US-12), given its previously-expressed concerns ab out protecting the confidentiality and integrity of 
consultations.  The US – Lamb Safeguards  Panel noted that:  “The United States . . . seriously 
question[s] the admissibility and the relevance to panel proceedings of information from bilateral, 
confidential consultations – for which usually no neutral witnesses or written records exist – when 
ascertaining whether the specificity requirements stipulated by DSU Article 6.2 for panel requests are 
met.”
45  Evidently, the United States has set aside its earlier qualms that “reliance in contentious panel 
proceedings on information from consultations could jeopardise their very purpose.”46 
 
76. In any event, as Exhibit US-12 indicates, Argentina’s 86 detailed written questions to the 
United States during the consultations period s how clearly that the full nature and scope of 
Argentina’s claims were set out in detail for th e United States.  Regardless of the number of 
individual questions on Articles 3 or 6, the large nu mber of detailed questions further supports the 
conclusion that the United States was well aware of the nature of Argentina’s claims. 
 
77. Since the United States has put Argentina’s wr itten questions before the panel, it is important 
to emphasize, as Argentina indicated to the DSB on  19 May, that the United States did not express 
any concern or confusion as to the nature of any of Argentina’s claims under Article 3 or 6 at any 
point during the two rounds of consultations.  Once Argentina requested a panel, however, the United 
States raised hitherto unexpressed concerns that it “could not discern the legal basis of Argentina’s 
complaint . . . .”47  Argentina questions this sudden and convenient “lack of understanding” by the 
United States. 
 
78. Moreover, as the United States notes, Argentin a’s first submission argues that the statutory 
provisions related to determining injury “within a reasonably foreseeable time” violate US obligations 
under Articles 3.1, 3.2, 3.4, 3.7 and 3.8. 
 
79. This leaves out only Articles 3.3, 3.5 and 3.6.  While violations of these provisions in 
connection with the statutory provisions at issue in claim B.3 are not developed in Argentina’s first 
submission, there can be little doubt that these pr ovisions too have a bearing on the issue of the 
temporal  element as to when  injury could be considered as “likely”  to continue or recur.  Article 3.3 
relates to conducting a cumulative injury analysis, Article 3.5 deals with causation – another clearly 
relevant provision on the temporal element wh ile Article 3.6 provides  rules regarding the 
determination of injury in relation to the domestic production of the like product. 
 
80. Moreover, in considering whether a reference to Article 3 of the Antidumping Agreement is 
sufficient for purposes of DSU Article 6.2, paragraph 93 of the Appellate Body report in Thailand H-
Beams  is relevant.  This paragraph dealt with Arti cle 5 of the Antidumping Agreement, but raised 
concepts that are directly relevant to Article 3:  
 
With respect to Article 5, Poland stated that “Thai authorities initiated and conducted 
this investigation in violation of the proce dural . . . requirements of Article VI of 
GATT 1994 and Article 5 . . . of the Antidumping Agreement.” Article 5 sets out 
various but closely related procedural steps that investigating au thorities must comply 
with in initiating and conducting an anti dumping investigation.  In view of the 
                                                      
 45 Panel Report, US – Lamb Safeguards , para. 5.39.   
46 Id. at para. 5.40. 
47 Dispute Settlement Body:  Minutes of Meeting held on 15 April 2003, WT/DSB/M/147, para. 32.  WT/DS268/R 
 Page A-193 
 
 
 interlinked nature of the obliga tions in Article 5, we are of  the view that, in the facts 
and circumstances of this case, Poland's reference to “the procedural . . . 
requirements” of Article 5 was sufficient  to meet the minimum requirements of 
Article 6.2 of the DSU.48 
81. As with Article 5, Article 3 also has “inter linked obligations.”  Artic le 3.1 provides that a 
determination of injury must be based on “positive evidence” and involve an “objective examination” 
of the volume of the dumped imports, the effect of dumped imports on prices, and the consequent 
impact of the dumped imports on the domestic industry.  Article 3.2 provides greater precision 
regarding the disciplines applicable to Members in determining the volume of the dumped imports, 
the effect of the dumped imports on prices, and th e consequent impact of these dumped imports on the 
domestic producers.  Article 3.4 sets out the factors that must be evaluated when considering the 
impact of the dumped imports on the domestic indu stry.  Article 3.5 requires that there must be a 
causal relationship between the dumped imports and the injury.  Article 3.7 enumerates when a threat 
of material injury may be determined.  This is not intended as an exhaustive list, but it does illustrate 
quite clearly that – as with Article 5 – Article 3 se ts out the “interlinked obligations” that have been 
imposed on Members.  
82. Therefore, Argentina’s reference to “Article 3” in Section B.3 also met the standards set out 
in DSU Article 6.2. 
 
83. More generally, Argentina’s Panel Request was required to, and did, set out its claims
 under 
Articles 3 and 6.  Argentina was not required to set out its arguments  in support of its Articles 3 and 6 
claims.  The listing of Articles 3 and 6 in Sections B.1, B.2, and B.3 satisfied the “minimum 
requirements” of Article 6.2 of the DSU.49  
 
84. As Argentina’s Panel Request meets the “m inimum requirements” under Article 6.2, the 
United States must demonstrate that it sustained actual prejudice during the course of the panel 
proceedings.  In its challenge to the “Page Four” cl aims, the United States was only able to offer a few 
brief paragraphs as to why it ostensibly suffered pr ejudice.  For its challenge to Sections B.1, B.2 and 
B.3, the US first submission has put forward only  one sentence:  “As in the case of Page 4 of 
Argentina’s panel request, the United States’ ability to begin preparing its defense has been impaired 
because, as a result of Argentina’s failure to comp ly with Article 6.2, the United States did not ‘know 
what case it has to answer.’”50 
 
85. This does not constitute “prejudice,” rising to the level of a violation of due process rights, for 
the purpose of DSU Article 6.2.  Argentina has shown above, in Section III.C.3, that the United States 
has not suffered any actual prejudice during the cour se of the panel proceedings.  Argentina will not 
repeat these arguments, but it incorporates th em by reference into the current section. 
 
86. The US claims under Sections B.1, B.2 and B.3 should be dismissed, because Argentina’s 
Panel Request presents the problem clearly, an d the United States failed to demonstrate actual 
prejudice. 
 
                                                      
48 Id. at para. 93. 
49 See Appellate Body Report, Korea –  Dairy , para. 123. 
50 US First Submission, para. 110. WT/DS268/R 
Page A-194  
 
 V. THE “CERTAIN MATTERS” REFERRED TO  BY THE UNITED STATES ARE ALL 
WITHIN THE PANEL’S TERMS OF REFERENCE 
A. US
 COMPLAINT  
87. The United States asserts that the following matters were not included in Argentina’s Panel 
Request and therefore are not within  the Panel’s terms of reference: 
 
(i) Argentina’s claim that Commerce’s sunset review practice, both as such and 
as applied, is inconsistent with Article 11.3 of the AD Agreement; 
(ii) Argentina’s claim that 19 USC. §§  1675(c) and 1675a(c), the SAA, and the 
Sunset Policy Bulletin , taken together, establish an irrefutable presumption that is 
inconsistent with Article 11.3 of the AD Agreement; 
(iii) Argentina’s claim that Commerce’s s unset review practice is inconsistent 
with Article X:3(a) of the GATT 1994; 
(iv) Argentina’s claim that the Comm ission’s application of 19 USC. §§ 
1675a(a)(1) and (5) in the sunset review of OCTG from Argentina is inconsistent 
with Articles 11.3 and 3 of the AD Agreement; and 
(v) Argentina’s claim that the US Measures  it has identified are inconsistent with 
Article VI of the GATT 1994, Articles 1 and 18 of the AD Agreement, and 
Article XVI:4 of the WTO Agreement.51 
B. ARGENTINA ’S POSITION  
88. At the outset, Argentina notes that the United States has not claimed that it has suffered any 
prejudice as a result of the five matters that were allegedly “not included” in Sections A and B of 
Argentina’s Panel Request.  Although the United States  did proffer a tepid assertion of prejudice with 
respect to its “Page Four” and “Sections B.1, B.2, and B.3” claims, here it has not asserted any  
prejudice at all. 
 89. For this reason alone, the Panel can summarily dismiss the US Article 6.2 claims under this section.  As noted above, any successful applicat ion under Article 6.2 requires the defending party to 
“substantiate” a claim of prejudice.  In the sect ion on the alleged five additional claims, the United 
States has not even raised, let alone substantiated, a claim of prejudice.  Its Article 6.2 claims are 
therefore defective and must be dismissed. 
 90. The United States has not made any claim of prejudice because it has not sustained any 
prejudice.  Once again, Argentina incorporates by reference into this section the “no prejudice” 
arguments discussed in Section III.C.3, above. 
 
91. Even as a matter of textual interpretation, howeve r, the United States is incorrect to assert that 
these are five “new” claims not included in Arge ntina’s Panel Request.  To recall two fundamental 
principles under Article 6.2: 
 
- a panel request need only set out claims, but not the arguments in support of those 
claims; and 
                                                     
 
51 US First Submission, paras. 112-114.  WT/DS268/R 
 Page A-195 
 
 
 - a panel request must be read “as a whole,” i.e., in its entirety. 
92. Turning to the spec ific US allegations: 
 
(i)  Argentina’s claim that Commerce’s sunset r eview practice, both as such and as applied, is 
inconsistent with Article 11.3 of the AD Agreement 
 
93. The United States is apparently alleging here  that Argentina’s Panel Request does not present 
a claim challenging the Department’s sunset review practice as being inconsistent with Article 11.3, 
either “as such” or “as applied.”  Although the Un ited States focuses on Section A.4 of Argentina’s 
Panel Request in making this claim, the US arguments are undermined by the very paragraph they reference. 
 
94. Section A.4 of Argentina’s Panel Request states: 
 
The Department’s Sunset Determination is in consistent with Article 11.3 of the Anti-
Dumping Agreement . . . because it was base d on a virtually irrefutable presumption 
under US law as such
 that termination of the anti-dumping duty measure would be 
likely to lead to continuati on or recurrence of dumping.  This unlawful presumption is 
evidenced by the consistent practice  of the Department in sunset reviews (which 
practice is based on US law and the Department’s Sunset Policy Bulletin ).  (Emphasis 
added.) 
95. The United States reads Section A.4 to raise a claim only with respect to the Department’s 
sunset determination in OCTG from Argentina.52  Section A.4 clearly states, however, that the 
Department’s sunset determination was inconsiste nt with Article 11.3 because it was based on an 
irrefutable presumption, which was establishe d by “US law as such” and evidenced by the 
Department’s “consistent practice.”  It is axiomatic that in order for the Department’s sunset determination to be inconsistent with Article 11.3 as described in Section A.4, that US law 
establishing the irrefutable presumption “as such” must also be inconsistent with Article 11.3.  
Consequently, Section A.4 makes cl ear that Argentina is challenging the irrefutable presumption in 
US law “as such.”  Moreover, because Section A.4 states expressly that the Department employed its 
consistent practice in the sunset determination of OCTG from Argentina, the panel request thus also 
makes clear that Argentina is challenging the Depart ment’s consistent practice “as applied” generally 
in sunset reviews.  Therefore, even looking at Section A.4 in isolation, the panel request presents the problem with regard to the Department’s consistent practice clearly. 
 
96. As noted above, however, the panel request mu st be read as a whole.  Reading the panel 
request as a whole provides further support for the conclusion that Argentina presented the problem 
with respect the Department’s consistent practice clearly. 
 
97. Regarding Argentina’s challenge of the Depa rtment’s consistent practice “as such,” the 
paragraph immediately preceding Section A states that “certain aspects of . . . policies and procedures 
related to the administration of sunset reviews are inconsistent with US WTO obligations.”  In 
addition, the first sentence of Section A.1 allege s that “US . . . procedures regarding ‘expedited’ 
sunset reviews are inconsistent” with, inter alia, Ar ticle 11.  Finally, Page Fo ur similarly refers to 
“policies[] and procedures related to the determinatio ns of the Department” as being inconsistent with 
US WTO obligations, including Article 11.3. 
 
98. While Section A.4 of the panel request clea rly identifies the “as such” challenge to the 
unlawful presumption and the “as applied” challenged  to the Department’s cons istent sunset practice, 
                                                     
 
52 US First Submission, para. 116. WT/DS268/R 
Page A-196  
 
 portions other than Section A.4 of the panel request also refer to Argentina’s “as applied” challenge to 
US sunset review practice under Article 11.3.  For ex ample, the first sentence of Section A.2 refers to 
“[t]he Department’s application
 of the expedited sunset review pr ocedures in the sunset review of 
OCTG from Argentina” as being inconsistent with , inter alia, Article 11.   (Emphasis added.)  
Additionally, the first sentence of Section A. 5 states, “The Department’s application  of the standard 
for determining whether termination of anti-dumping measure would be ‘likely to lead to continuation 
or recurrence of dumping’ is inconsistent” with , inter alia, Article 11.3.  (Emphasis added.) 
 
99. The United States thus cannot credibly assert that from the terms of the panel request it had 
no notice that Argentina was challenging the Department’s practice.  100. Moreover, as explained above, during the consultations Argentina presented written questions 
to the United States on a broad set of issues being ra ised by Argentina, including issues related to the 
Department’s general sunset practice and the irrefutable presumption established by US law.
53  For 
example, in question 13, Argentina asked, “Is there a presumption under US law or practice  that 
revocation of an antidumping order would likely lead  to a continuation or recurrence of dumping?”54  
It is clear that even before Argentina submitted its  panel request, the United States had notice that 
Argentina was challenging the Department’s consiste nt practice.  Consequently, the United States 
cannot credibly assert that it suffered actual prejudice during the course of the panel proceedings. 
 
(ii)  Argentina’s claim that 19 USC. §§ 1675(c) and 1675a(c), the SAA, and the Sunset Policy Bulletin, taken together, establish an irrefut able  presumption that is inconsistent with 
Article 11.3 of the AD Agreement 
 
101. The United States argues that Argentina’s Panel Request does not present the problem clearly 
with respect to the irrefutable presumption establis hed by 19 USC. §§ 1675(c) and 1675a(c), the SAA, 
and the Sunset Policy Bulletin, taken together.  In making this argument, the United States again 
limits its focus to Section A.4, rather than considering the panel request as a whole. 
 
102. Read as a whole, Argentina’s Panel Request presents the problem clearly.  First, as noted 
above, Section A.4 states that the “Department’ s Sunset Determination is inconsistent with 
Article 11.3 of the Anti-Dumping Agreement . . . because it was based on a virtually irrefutable 
presumption under US law as such
 that termination of the anti-dumping duty measure would be likely 
to lead to continuation or recurrence of dumpin g.”  (Emphasis added.)  Accordingly, Argentina’s 
claim that the Department’s Sunset Determination was inconsistent with Article 11.3 relies on the 
premise that US law as such establishes an irrefu table presumption of likely dumping.  Consequently, 
Section A.4 makes clear that Argentina is alleging that US law establishes an irrefutable presumption 
of likely dumping that is inconsistent with Article 11.3.  Meanwhile, Page Four of the panel request 
(on which Argentina has already provided argumenta tion) indicates that “US law” in this context 
comprises 19 USC. §§ 1675(c), 1675a, the SAA, and the Sunset Policy Bulletin , and that these 
measures violate, inter alia, Article 11. 
 
103. Argentina has thus adequately set out its clai ms and presented the problem clearly.  Indeed, 
Argentina’s Panel Request exceeded the minimum requ irements of Article 6.2 of the DSU, because it 
did much more than simply cite Artic le 11 of the Antidumping Agreement. 
 
104. In addition, during consultations Argentina su bmitted detailed questions that clearly set forth 
its claim that the statute, SAA, and Sunset Policy Bulletin establish a presumption that is inconsistent 
                                                      
53 See Written Questions Presented by Argentina for the Consultations on 14 November 2002 (Exhibit 
US-12), questions 13, 26, 28-31. 
54 Id. at question 13 (emphasis added).  WT/DS268/R 
 Page A-197 
 
 
 with Article 11.3.55  For example, question 28 states, “Does the United States consider that the US 
antidumping statute, the Statement of Administra tive Action, and the Department’s Sunset Review 
Policy Bulletin, establish a presumption in favo r of maintaining an antidumping duty order?”56  
Therefore, the United States cannot credibly assert that it had no notice that Argentina was alleging 
that these measures – taken together – establish a pr esumption that is inconsistent with Article 11.3, 
and that it was prejudiced as a result. 
 
(iii)  Argentina’s claim that Commerce’s suns et review practice is inconsistent with 
Article X:3(a) of the GATT 1994 
 105. The United States alleges that Argentin a’s Panel Request does not clearly challenge 
Commerce’s sunset review “practice,” either “as su ch” or “as applied,” as being inconsistent with 
GATT Article X:3(a).  To the contrary, Argentina’s Panel Request clearly presented the nature of its 
claim with respect to Article X:3(a). 
 
106. Section A.4 of the panel request states that  “[t]he Department’s Sunset Determination is 
inconsistent with . . .  Artic le X:3(a) of the GATT 1994
 because it was based on a virtually irrefutable 
presumption under US law as such” that “is evidenced by the consistent practice  of the Department in 
sunset reviews . . . .”  (Emphasis added.) 
 
107. Article X:3(a) of the GATT 1994 states, “E ach contracting party shall administer in a 
uniform, impartial and reasonable manner all its laws, regulations, decisions and rulings of the kind 
described in paragraph 1 of this article.”  Paragra ph 1 of Article X, in turn , refers to the “[l]aws, 
regulations, judicial decisions and administrative ruli ngs of general application,  made effective by any 
[Member], pertaining to . . . rates of duty, taxes, or  other charges, or to requirements, restrictions or 
prohibitions on imports . . . .” 
 
108. Argentina’s Panel Request is thus clear.  Se ction A.4 cites Article X:3(a), and the text of 
Article X:3(a) unambiguously expresses each impor ting Member’s obligation to administer its laws, 
regulations, decisions and rulings impartially and fairly.  Further, Section A.4 provides that the 
Department’s violation of Article X:3(a) is evid enced by the Department’s consistent practice in 
sunset reviews.  The United States therefore has no credible basis to assert that it did not understand 
that Argentina was alleging that th e Department’s consistent practice in sunset reviews violates 
Article X:3(a). 
 
109. In addition to Section A.4, Page Four of the panel request states that US “policies and 
procedures” are inconsistent with  Article X of the GATT 1994. 
 
(iv)  Argentina’s claim that the ITC’s application of 19 USC. §§ 1675a(a)(1) and (5) in the 
sunset review of OCTG from Argentina is inconsistent with Articles 11.3 and 3 of the AD 
Agreement” 
 
110. The United States alleges that Argentina’ s Panel Request only challenges 19 USC. §§ 
1675a(a)(1) and (5) as such, rather than as applied in the sunset determination of OCTG from 
Argentina. 
 
111. The United States again fails to consider the panel request “as a whole.”  The United States 
reads Section B.3 of the panel request in isolation fr om the rest of the text.  The heading to Section B 
states that “[t]he Commission’s Sunset Determ ination was inconsistent with the Anti-Dumping 
                                                      
55 See Written Questions Presented by Argentina for the Consultations on 14 November 2002, and 
17 December 2002 (Exhibit US-12), questions 13, 26, 28-31. 
56 Id. at question 28. WT/DS268/R 
Page A-198  
 
 Agreement and the GATT 1994.”  The heading to Section B applies to each of the subheadings listed 
below it, including Section B.3.  Thus, the panel request unambiguously indicates that Argentina is 
challenging 19 USC. §§ 1675a(a)(1) and (5) both as such and
 as applied in the Commission’s sunset 
determination of OCTG from Argentina. 
 
112. In addition, Argentina’s Panel Request contains the factual background to this dispute, 
indicating that the Commission determined in its su nset review of Argentine OCTG that injury would 
be likely to continue or recur “within a reasonably foreseeable time,” as required by 19 USC. § 
1675a(a)(1).  This statement provides further indication of Argentina’s intent to challenge the 
application of 19 USC. §§ 1675a(a)(1) and (5) in the Commission’s sunset determination of OCTG 
from Argentina.  
(v)  Argentina’s claim that the US Measures it has identified are inconsistent with Article VI 
of the GATT 1994, Articles 1 and 18 of the AD  Agreement, and Artic le XVI:4 of the WTO 
Agreement 
 113. Page Four of the panel request specificall y references Article VI of the GATT 1994, 
Articles 1 and 18 of the Antidumping Agreement, an d Article XVI:4 of the WT O Agreement.  In the 
context of this dispute, these articles could not ha ve operated in any way other than as consequential 
violations.  Argentina’s claims under Article VI of  the GATT 1994, Articles 1, 18.1, and 18.4 of the 
Antidumping Agreement depend upon a breach of  substantive provisions of the Antidumping 
Agreement.  Similarly, Argentina’s claim of a violation of Article XVI:4 of the WTO Agreement 
depends upon a breach of a provision of a covered agreement.  Therefore, the mere listing of these 
provisions in the panel request – which already sa tisfied the minimum requirements of Article 6.2 – 
was sufficient to set forth the problem clearly.  Ind eed, the US argument on this point indicates that it 
understands quite well the purpose – indeed, the only
 purpose – of these dependent provisions.57 
 
114. Before concluding its submission, Argentina is compelled to comment upon the unwarranted 
allegations of bad faith in the US first submi ssion with respect to Argentina’s Panel Request: 
 
paragraph 98 of the US first submission st ates the failure of Argentina to draft Page 
Four with “similar precision” to the drafting used in Sections A and B “leaves one 
with the unavoidable impression that the shift from precision to extreme ambiguity 
was not inadverent”; 
paragraph 106 suggests that Argentina “knew what claims it intended to make” with 
respect to Sections B.1, B.2 and B.3, but that it “wished to conceal that information 
for the time being”; and 
footnote 103 accuses Argentina of employing a “bait-and-switch gambit.” 
115. With such allegations, the United States has essentially accused Argentina, when drafting its 
panel request, of deliberately attemp ting to conceal the nature of its claim from the United States, the 
third parties, the panel, and DSB.  Moreover, su ch an allegation would imply that Argentina has 
violated its obligation under DSU to “engage in [dis pute settlement] procedures in good faith in an 
effort to resolve the dispute.”  116. To the contrary, Argentina has at all times conduc ted itself consistent with the letter and spirit 
of the rules governing WTO dispute settlement.  Indeed, throughout the course of consultations, and 
in drafting its panel request, Argentina has clearl y identified its claims.  Moreover, Argentina had 
                                                     
 
57 US First Submission, para. 126 (“These claims are consequential claims in the sense that they 
depend upon a finding that some other provision of the AD Agreement or GATT 1994 has been breached.”).  WT/DS268/R 
 Page A-199 
 
 
 hoped to resolve this dispute without the need to resort to the panel process.  As noted above, 
Argentina provided 86 written questions to the United States (to which it received no written 
responses), participated in two rounds of consulta tions, and has always acted in good faith in these 
proceedings.  For the United States to assert othe rwise is perplexing and completely inconsistent with 
the record of this proceeding.  Argentina rejects these accusations by the United States. 
 
VI. CONCLUSION 
117. The US request for preliminary rulings fails bo th prongs of the two-part test set out by the 
Appellate Body for determining whether a panel requ est meets the requirements of Article 6.2 of the 
DSU.  First, an examination of Argentina’s Panel Request, read as a whole, indicates that it is detailed, clear and specific, fully setting out Argentin a’s claims.  Second, the United States has utterly 
failed to substantiate its claim that it was alle gedly prejudiced during the course of the Panel 
proceedings.  In any event, as indicated above, the United States has been well aware of the full nature 
and extent of Argentina’s claims for over a year. 
 118. In light of the attendant circumstances in this case, the United States cannot credibly assert that it was not aware of Argentina’s claims, “sufficient to allow it to defend itself.” 
 
119. Accordingly, Argentina respectfully request s the Panel to dismiss the US request for 
preliminary rulings in their entirety.   
 Geneva, 4 December 2003