UNITED STATES – SUNSET REVIEWS OF ANTI-DUMPING MEASURES ON OIL COUNTRY TUBULAR GOODS FROM ARGENTINA
Document: Report of the Appellate Body
Date: 29 November 2004
Document codes: WT/DS268/AB/R
Complainant: Argentina
Respondent: U.S.
Third parties: China, EU, Japan, South Korea, Mexico, Taiwan
Dispute stage: Implementation & Compliance
Agreements cited: Art. 1, 2, 3, 6, 11, 12, 18, Annex II  Anti-dumpingArt. VI, X  GATT 1994Art. XVI:4  Agreement Establishing the World Trade Organization

UNITED STATES – SUNSET REVIEWS OF
ANTI-DUMPING MEASURES ON OIL COUNTRY
TUBULAR GOODS FROM ARGENTINA

AB-2004-4

Report of the Appellate Body

APPELLATE BODY

United States, Appellant/Appellee
Argentina, Appellant/Appellee

European Communities, Third Participant
Japan, Third Participant
Korea, Third Participant
Mexico, Third Participant
Separate Customs Territory of Taiwan, Penghu,
Kinmen, and Matsu, Third Participant
 AB-2004-4

 Present:

 Taniguchi, Presiding Member
 Abi-Saab, Member
 Ganesan, Member

I. Introduction
1. The United States and Argentina each appeals certain issues of law and legal interpretations
developed in the Panel Report, (the "Panel Report").
1 The Panel was established to consider
a complaint by Argentina against the United States regarding the continuation of anti-dumping duties
on oil country tubular goods ("OCTG") from Argentina following the conduct of a five-year, or
"sunset", review of those duties.
2. In June 1995, the United States Department of Commerce (the "USDOC") imposed anti-
dumping duties on OCTG from Argentina following an investigation that was initiated by the
USDOC in 1994, before the entry into force of the Marrakesh Agreement Establishing the (the " WTO Agreement
 ").2 The anti-dumping duty order imposed an anti-
dumping duty of 1.36 per cent on Siderca, the only e xporter from Argentina that had participated in
the investigation, and a residual duty at the sa me rate for all other exporters from Argentina. 3
Following the imposition of the anti-dumping duties, Siderca ceased exporting OCTG to the United
States.4 In the five years following the imposition of these anti-dumping duties, the USDOC initiated

1WT/DS268/R and Corr.1, 16 July 2004.
2Panel Report, para. 2.1.
3Ibid., para. 2.2.
4Ibid., para. 2.3.

four reviews of the anti-dumping duties on Siderca, at the request of the domestic producers in the
United States. In each of these reviews, the USDO C determined, on the basis of Siderca's statements,
that Siderca "had not made any shipment for consumption in the United States".
5 As Siderca was the
sole exporter from Argentina for whom an administ rative review had been requested by the domestic
producers, the USDOC "rescinded the administrative review" on OCTG from Argentina.6
3. In July 2000, the USDOC initiated, on its ow n initiative, a sunset review of anti-dumping
duties on OCTG from Argentina.7 In its determination of the lik elihood of continuation or recurrence
of dumping8, the USDOC concluded that "dumping has con tinued over the life of the Argentine order
and is likely to continue if the order were revoked". 9 In its determination of the likelihood of
continuation or recurrence of injury, the United States International Trade Commission (the "USITC")
cumulated imports from all sources subject to th e sunset review, including countries other than
Argentina. Based on its consideration of the likely volumes, price effects, and adverse impact of
dumped imports from all sources on th e domestic industry, the USITC c oncluded that expiry of the
duty "would be likely to lead to continuation or recu rrence of material injury to an industry in the
United States within a reasonably foreseeable time".10
4. Before the Panel, Argentina claimed that certain provisions of the Tariff Act of 1930 11, the
Statement of Administrative Action (the "SAA") 12, Section II.A.3 of the Sunset Policy Bulletin (the
"SPB")13, and the USDOC "practice" relating to the conduct of sunset reviews 14, are inconsistent, as

5Panel Report, para. 2.4.
6Ibid.
7Ibid., para. 2.5.
8In our discussion we refer at times to the USDOC's determination of the likelihood of continuation or
recurrence of dumping as the "like lihood-of-dumping determination", and the USITC's determination of the
likelihood of continuation or recurrence of injury as the "likelihood-of-injury determination".
9Issues and Decision Memorandum for the Expedited Sunset Reviews of the Antidumping Duty Orders
on Oil Country Tubular Goods from Argentina, Italy, Japan, and Korea; Final Results, 31 October 2000 (Exhibit
ARG-51 submitted by Argentina to the Panel), p. 5.
10Oil Country Tubular Goods from Argentina, Italy, Japan, Korea, and Mexico, Investigation Nos. 701-
TA-364, 731-TA-711, and 713-616, Pub. 3434 (June 2001) (Exhibit ARG-54 submitted by Argentina to the
Panel) ("USITC Report"), p. 1.
11The statutory provisions challenged by Argentina before the Panel are Sections 751(c), 751(c)(4),
752(a)(1), 752(a)(5), and 752(c) of the Tariff Act of 1930. (See Panel Report, para. 3.1(1)-(3)) These provisions
correspond to Sections 1675(c), 1675(c)(4), 1675a(a) (1), 1675a(a)(5), and 1675 a(c) of Title 19 of the United
States Code.
12Statement of Administrative Action to the Uruguay Round Agreements Act, H.R. Doc. No. 103-316
(1994), reprinted in 1994 USCAAN 3773, 4040 (Exhibit ARG-5 submitted by Argentina to the Panel).
13Policies Regarding the Conduct of Five-year ("Sunset") Reviews of Antidumping and Countervailing
Duty Orders; Policy Bulletin, United States Federal Register , Vol. 63, No. 73 (16 April 1998), p. 18871
(Exhibit ARG-35 submitted by Argentina to the Panel).
14Panel Report, para. 3.1(3).

such, with Articles 3 and 11 of the Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994 (the "Anti-Dumping Agreement "). Argentina also claimed that
Section 351.218(d)(2)(iii) of the USDOC Regulations 15 is inconsistent, as such, with Articles 6.1, 6.2,
and 11.3 of the Anti-Dumping Agreement.16 Argentina claimed that the United States' sunset review
determination on OCTG from Argentina—with respect to the USDOC's likelihood-of-dumping
determination and the USITC's likelihood-of-injury determination—is incons istent with the United
States' obligations under Articles 3, 6, 11, and 12 of the Anti-Dumping Agreement and Annex II
thereto.17
5. Argentina also argued that the United States is ac ting inconsistently with Article X:3(a) of the
General Agreement on Tariffs and Trade 1994 (the "GATT 1994") because the USDOC fails to
administer, in an impartial and reasonable manner, the United States' sunset review laws, regulations,
decisions, and rulings. 18 As a consequence of the alleged inconsistencies with the Anti-Dumping
Agreement, Argentina further claimed that the United St ates acted inconsistently with Articles 1
and 18 of the Anti-Dumping Agreement , Article VI of the GATT 1994, and Article XVI:4 of the
WTO Agreement .19
6. In the Panel Report, circulated to Members of the World Trade Organization (the "WTO")
on 16 July 2004, the Panel found that Section 751( c)(4)(B) of the Tariff Act of 1930 and Section
351.218(d)(2)(iii) of the USDOC Regulations are inc onsistent, as such, with Article 11.3 of the
Anti-Dumping Agreement , and that Section II.A.3 of the SPB is inconsistent, as such, with
Article 11.3 of the Anti-Dumping Agreement.20 The Panel also found that Section 351.218(d)(2)(iii)
of the USDOC Regulations is inconsistent, as such, with Articles 6.1 and 6.2 of the Anti-Dumping
Agreement.21 As to Argentina's "as applied" 22 claims, the Panel found that the USDOC's likelihood-
of-dumping determination underlying th is dispute is inconsistent with Articles 11.3 and 6.2 of the

15The "USDOC Regulations", as they relate to sunset reviews, are found in Procedures for Conducting
Five-year ("Sunset") Reviews of Antidumping and Countervailing Duty Orders, United States Federal Register,
Vol. 63, No. 54 (20 March 1998), p. 13516 (Exhibit US-3 submitted by the United States to the Panel), codified
in Title 19, Section 351.218 of the United States Code of Federal Regulations.
16Panel Report, para. 3.1(1)-(3).
17Ibid., para. 3.1(4)-(6) and (8)-(11).
18Ibid., para. 3.1(7).
19Ibid., para. 3.1(12).
20Ibid., paras. 8.1(a)(i)-(ii) and 8.1(b).
21Ibid., para. 8.1(a)(iii).
22By "as applied", we refer to the types of claims involving challenges to a Member's application of a
general rule to a specific set of facts. The "as applied" claims in this dispute concern the application of United
States rules governing sunset reviews in the course of likelihood-of-dumping and likelihood-of-injury
determinations made with respect to imports of OCTG from Argentina.

Anti-Dumping Agreement
 23, but that it is not inconsistent with Articles 6.1, 6.8, or 12, or with
Annex II.24
7. The Panel further found that Sections 752(a)(1 ) and 752(a)(5) of the Tariff Act of 1930, as
well as the USITC's likelihood-of-injury determination, are not inconsistent with Articles 3.3, 3.7, 3.8,
or 11.3 of the Anti-Dumping Agreement.25 The Panel exercised judicial economy with respect to the
remainder of Argentina's claims, including Argentina' s challenges: (1) to the administration by the
USDOC of the United States' sunset review laws, regulations, decisions, and rulings 26; and (2) to the
USDOC "practice" relating to the conduct of sunset reviews. 27 The Panel also declined Argentina's
request to make a suggestion, pursuant to Article 19.1 of the Understanding on Rules and Procedures
Governing the Settlement of Disputes (the "DSU"), that the United States bring its measures into
conformity with its WTO obligations "by revoking the anti-dumping order and repealing or amending
the laws and regulations at issue".28
8. The Panel accordingly recommended that the Di spute Settlement Body (the "DSB") request
the United States "to bring its measures mentioned in paragraph 8.1(a)(i), (ii), (iii), 8.1(b) and
8.1(d)(i) [of the Panel Report] into conformity with its obligations under the WTO Agreement".29
9. On 31 August 2004, the United States notified the DSB of its intention to appeal certain
issues of law covered in the Panel Report and certa in legal interpretations developed by the Panel,
pursuant to paragraph 4 of Article 16 of the DSU, and filed a Notice of Appeal 30 pursuant to Rule 20
of the Working Procedures for Appellate Review.31 On 13 September 2004, the United States filed its
appellant's submission.32 On 15 September 2004, Argentina filed an other appellant's submission. On
27 September 2004, the United States and Argentina filed their appellee's submissions.33 On the same
day, the European Communities, Japan, Korea, and Mexico each filed a third participant's
submission 34, and the Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu notified

23Panel Report, para. 8.1(d)(i).
24Ibid., para. 8.1(d)(ii).
25Ibid., paras. 7.193, 8.1(c), 8.1(d)(ii), and 8.1(e).
26Ibid., para. 7.169.
27Ibid., para. 7.168.
28Ibid., para. 8.3.
29Ibid., para. 8.2.
30WT/DS268/5, 31 August 2004 (attached as Annex I to this Report).
31WT/AB/WP/7, 1 May 2003 (the "Working Procedures").
32Pursuant to Rule 21 of the Working Procedures.
33Pursuant to Rule 22 of the Working Procedures.
34Pursuant to Rule 24(1) of the Working Procedures.

the Appellate Body Secretariat of its intention to appear and make an opening statement at the oral
hearing as a third participant.35
10. On 12 October 2004, Argentina filed a letter requesting the Division hearing the appeal "to let
the parties in this appeal know in advance of the hearing the order in which the ... Division plans to
address the issues before appeal."36 Argentina supported its request by reference to a "practice [to this
effect that] was followed in some previous appeal proceedings". The United States did not object to
Argentina's request. On 13 October 2004, the Divi sion responded to Argentina's request, stating that,
although "it is not the practice of the Appellate Body to inform the participants, in advance of the oral
hearing, of the issues on which a Division intends to pose questions", the Division, exercising its
discretion in the conduct of the oral hearing, had d ecided to provide and identify in advance the order
in which the issues on appeal would be addressed during the questioning. The Division emphasized,
however, that "this order of questioning is general in nature, and that it is also subject to change, at the
Division's discretion, as the Division's work on this appeal continues."37
11. The oral hearing in the appeal was held on 15 and 16 October 2004. The participants and
third participants presented oral arguments (with th e exception of the Separate Customs Territory of
Taiwan, Penghu, Kinmen, and Matsu) and responded to questions by the Members of the Division
hearing the appeal.
II. Arguments of the Participants and Third Participants
A. Claims of Error by the United States – Appellant
1. The Panel's Terms of Reference
12. The United States appeals the Panel's denial of the United States' request for a preliminary
ruling that certain of Argentina's claims elaborated in its first written submission had not been set out
in Argentina's request for the establishment of a panel ("panel request")38, as required by Article 6.2 of
the DSU. The United States argues that these claims were not within the Panel's terms of reference
and, accordingly, the Panel should not have reached conclusions with respect to these claims.

35Pursuant to Rule 24(2) of the Working Procedures.
36Letter from Argentina to the Director of the Appella te Body Secretariat, 12 October 2004, copied to
the United States and the third participants.
37Letter from the Director of the Appellate Body Secr etariat to the participants and third participants,
13 October 2004.
38WT/DS268/2, 4 April 2003 (attached as Annex II to this Report).

(a) "As Such" Claims Relating to the United States Department of
Commerce's Likelihood-of-Dumping Determination
13. The United States challenges the Panel's findings that Argentina's panel request includes "as
such" claims against Sections 751(c) and 752(c) of the Tariff Act of 1930, the SAA, and the SPB.
14. The United States argues that it did not receive notice of these "as such" claims from
Argentina's reference in the panel requ est to an "irrefutable presumption"
39 under United States law
that dumping would be likely to continue or recur after termination of an anti-dumping order. The
United States points out that the heading of Secti on A of the panel request, as well as the sentence in
which the phrase "irrefutable presumption" appears, refer to the WTO-inconsistency of the USDOC's
"Determination" underlying this dispute and not to United States law as such. The United States notes
further that in Section A.4 of the panel request, th e "practice" is described as "evidence[]" of the
alleged presumption, and the SPB is stated as the "bas [is]" for the practice; neither of these is stated
to be the subject of a claim in itself.
15. The United States also observes that the alle ged presumption is claimed to be based on
"US law" 40, but the law being challenged—namely, the SAA, the SPB, a provision of the Tariff Act
of 1930, or a combination of these—is not speci fied. The United States argues that "page four" 41 of
the panel request cannot be used to clarify the clai ms purportedly set out in Section A.4. The United
States emphasizes that "page four", which appears in the panel request following the claims alleged in
Sections A and B, states that Argentina " also" 42 considers certain provisions of United States law to
be inconsistent with the United States' WTO obligations. In the United States' view, this suggests that
"whatever is 'claimed' on 'Page Four' is in addition to and not a clarification of what is claimed in
section A.4." 43 The text of the panel request makes clear that "page four" was intended to add to,
rather than clarify, the claims already made in Sections A and B of the panel request. The United
States submits that this understanding of "page four" of the panel request was confirmed by Argentina
at the DSB meeting establishing the panel, where Ar gentina indicated to the United States that the
claims were set forth in Sections A and B of the pa nel request rather than in "page four". Having
encouraged the United States to read the panel re quest in this manner, the United States argues,

39Argentina's panel request, Section A.4.
40Ibid.
41See infra, footnote 217.
42United States' appellant's submission, para. 94 (quo ting Argentina's panel request, p. 4). (emphasis
added by the United States)
43Ibid., para. 94. (original emphasis)

Argentina may not subsequently rely on "page four" to "expand" 44 the claims set out in Sections A
and B.
(b) "As Such" and "As Applied" Claims Relating to the United
States International Trade Commission's Likelihood-of-Injury
Determination
16. If Argentina appeals the Panel's findings, under Articles 3.7 and 3.8, on the United States'
laws relating to the timeframe for the evaluation of li kely injury by the USITC, and on the application
of those laws in the underlying sunset review, the United States appeals the Panel's conclusions
regarding the consistency of Argen tina's panel request with Article 6.2 of the DSU in respect of those
claims.
17. The United States asserts that, although Argentina developed claims under paragraphs 7 and 8
of Article 3 in its written submissions to the Panel, Section B.3 of the panel request cited "Article 3"
without reference to any of its paragraphs, thus indicating a cha llenge brought under the whole of
Article 3. According to the United States, such "wholesale references to articles with multiple
obligations"45 are inconsistent with the obligation under Article 6.2 of the DSU to "present the
problem clearly". The United States argues that, as Articles 3.7 and 3.8 address "threat of material
injury", and as no threat determination was made in the underlying sunset review, it could not have
known that those provisions would be the focus of Argentina's claims. The United States also
contests the Panel's reasoning that appears to suggest that Section B.3 contains textual similarities
with Article 3.7, which should have informed th e United States of Argentina's challenge to the
timeframe employed by the USITC when evaluating the likelihood of injury to the domestic industry.
In the United States' view, the language in Section B.3 does not reflect Article 3.7, but rather, quotes
the United States statute being challenged, thereby failing to identify the legal basis of Argentina's
complaint.
(c) Prejudice
18. Finally, the United States challenges the Pa nel's finding that the United States did not
establish that it had been prejudiced by any lack of cl arity in Argentina's panel request. In support of
this challenge, the United States first submits that the Panel did not cite any authority for the United
States' obligation to establish prejudice as a prer equisite to a successful Article 6.2 challenge.

45Ibid., para. 102.

Secondly, the United States argues that, because of the "inherently prejudicial"
46 nature of Argentina's
panel request, the United States did not know which provision in "US law" 47 was alleged to be
inconsistent with what WTO law. This lack of clarity, according to the United States, was
compounded by Argentina's initial indication to the United States that the entirety of Argentina's
claims was to be found in Sections A and B of the panel request, whereas Argentina subsequently
identified its claims before the Panel by re ference to "page four" of that document. 48 Thirdly, the
United States points to its inability to conduct su fficient research and assign adequate personnel to
work on the present dispute in the light of uncertain ty about Argentina's claim. These difficulties, the
United States submits, are further evidenced by the fact that the United States was unable to address,
until the first meeting with the Panel, the issue of the specific remedy requested by Argentina. The
United States further submits that, instead of having five months from the date of the panel request to
prepare its submission, it effectively had only three weeks from the filing of Argentina's submission to
do so. In the United States' view, this loss of preparation time is relevant to a finding of prejudice,
considering the nature and the number of claims rais ed in the first submission of Argentina that were
not set out in the panel request.
19. For these reasons, the United States requests the Appellate Body to reverse the Panel's finding
that Argentina's panel request includes, with resp ect to the alleged "irrefutable presumption", the "as
such" claims against Sections 751(c) and 752(c) of the Tariff Act of 1930, the SAA, and the SPB.
The United States also requests the Appellate Body to reverse the Panel's finding that the United
States did not demonstrate the requisite prejudice to make out a successful claim under Article 6.2 of
the DSU. Should Argentina appeal the Panel's fi ndings, under Articles 3.7 and 3.8, relating to the
timeframe employed by the USITC when making its likelihood-of-injury determination, the United
States further requests the Appellate Body to rever se the Panel's findings that these claims are within
its terms of reference.
2. The Sunset Policy Bulletin

20. The United States contests the Panel's findings th at the SPB is a "measure" subject to WTO
dispute settlement and that Section II.A.3 of the SPB is inconsistent, as such, with Article 11.3 of the
Anti-Dumping Agreement.

47Argentina's panel request, Section A.4.

(a) The Sunset Policy Bulletin as a "Measure"
21. The United States argues that the Panel erred in relying on the Appellate Body Report in
US – Corrosion-Resistant Steel Sunset Review because the Appellate Body did not conclude in that
report that the SPB is a measure. In that case, according to the United States, the Appellate Body
reversed the panel's finding that the SPB is not a measure only because the panel's analysis was
insufficient, but the Appellate Body did not complete the analysis, thereby leaving open the question
of whether the SPB is a measure.
22. The United States also submits that the Panel e rred in concluding that the SPB is a measure
because such a conclusion does not result from "an objective assessment" consistent with Article 11
of the DSU. The United States argues that the Panel contravened Article 11 of the DSU because it did
not explain why the findings of the Appellate Body in US – Corrosion-Resistant Steel Sunset Review ,
as to whether the SPB is a measure, would be persuasi ve given the factual record in this dispute. For
the United States, because the Panel simply relie d on the findings of the Appellate Body in US –
Corrosion-Resistant Steel Sunset Review without providing an analysis on the basis of the factual
record in this dispute, it made no assessment and, therefore, it cannot be said to have made an
objective assessment. The United States adds that the Panel did not make an "objective assessment"
as to whether the SPB is a measure because it failed to consider the United States' explanations that
the SPB "has no functional life of its ow n and has no independent legal status" 49, and because the
Panel lacked the factual information necessary to conclude that the SPB is a measure.
23. The United States argues further that the SPB is not a measure because it "is not a legal
instrument"50, and it "does not 'set[] forth rules or nor ms that are intended to have general and
prospective application' ".51 The United States submits that no n-binding documents that simply
express agency thinking and provide guidance to th e public, such as the SPB, should not be found to
be measures.
24. For these reasons, the United States requests the Appellate Body to reverse the Panel's finding
that the SPB is a "measure" subject to WTO dispute settlement.

50Ibid., paras. 11 and 13.
51Ibid., para. 13 (quoting Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review ,
para. 82).

(b) Consistency of the Sunset Policy Bulletin with Article 11.3 of the
Anti-Dumping Agreement
25. The United States argues that the Panel erred in concluding that Section II.A.3 of the SPB is
inconsistent with Article 11.3 of the Anti-Dumping Agreement.
26. The United States expresses the view that the ma ndatory/discretionary distinction is well
established and has been consistently applied in GATT and WTO dispute settlement proceedings. For
the United States, the Panel properly frame d the question before it in terms of a
mandatory/discretionary analysis when it stated th at it had to decide whether Section II.A.3 of the
SPB directs the USDOC to treat evidence concerning "dumping margins" and "import volumes" as
conclusive in its likelihood determ inations. However, according to the United States, the Panel
misapplied the test it had set out by conducting an "a rtificial and incorrect" interpretive analysis based
on a "misreading" of the Appellate Body's findings in US – Corrosion-Resistant Steel Sunset
Review.
52 The United States submits that the SPB is pa rt of United States municipal law, and that the
meaning of a WTO Member's municipal law is a ques tion of fact that requires an examination of the
status and meaning of the measure at issue with in the municipal legal system of the Member
concerned. The United States argues that the appr oach employed by the Panel in reviewing the
practice of the USDOC was "superficial" 53, with no basis in the United States legal system. For the
United States, the analysis of the meaning of th e SPB performed by the Panel did not reflect an
"objective assessment" under Article 11 of the DSU because it "neglected" 54 the status of the SPB
within the municipal legal system of the United States, and "ignore[d]" 55 the municipal legal
principles that define the meaning of the SPB.
27. The United States reiterates that the SPB is "simply a transparency tool" that provides
guidance to the public and the private sector and, therefore, it was "inaccurate [for the Panel] to
conclude that the SPB requires that [the USDOC] do anything at all".56 Inasmuch as the SPB does not
require the USDOC to "do anything", it cannot be sai d to breach the obligations at issue in this
dispute.

53Ibid., para. 23.
54Ibid., para. 4.
55Ibid., para. 23.
56Ibid., para. 25. (original underlining)

28. The United States disagrees with the Panel's analysis of the "consistent application" 57 of the
SPB. The United States points out that there is no principle of interpretation in United States law
which provides that a previously non-binding doc ument becomes, through repeated application,
binding. The United States adds that if the USDO C has discretion to apply a law in a particular
manner, the fact that, to date, it has not exercised its discretion in that manner would not change the
fact that the USDOC has the discretion to do so. The United States emphasizes that the Panel's
conclusion that the three scenarios of Section II.A.3 of the SPB are conclusive is based solely on an
analysis of statistics on the application of the SPB in past sunset reviews. The statistical analysis on
which the Panel relied does not reflect an "objec tive assessment" in its own right because the Panel
did no more than note a "correlation" between the results in particular sunset reviews and the
scenarios set forth in the SPB. 58 According to the United States, the Panel did not ask the question of
whether the SPB caused the determinations in question, as it simply assumed a cause and effect
relationship.59
29. Therefore, the United States requests the Appella te Body to reverse the Panel's finding that
Section II.A.3 of the SPB is inconsistent, as such, with Article 11.3 of the Anti-Dumping Agreement.
3. Waiver Provisions 60 of United States Laws and Regulations
(a) Argentina's Prima Facie Case
30. The United States alleges that Argentina failed to make out a prima facie case that Section
751(c)(4)(B) of the Tariff Act of 1930 and Sec tion 351.218(d)(2)(iii) of the USDOC Regulations
are inconsistent, as such, with Article 11.3 of the Anti-Dumping Agreement , and that Section
351.218(d)(2)(iii) of the USDOC Regulations is inconsis tent, as such, with Articles 6.1 and 6.2 of the
Anti-Dumping Agreement.
31. The United States recalls the statement of the Appellate Body, in US – Carbon Steel , that
"[t]he party asserting that another party's municipal la w, as such, is inconsistent with relevant treaty
obligations bears the burden of introducing evidence as to the scope and meaning of such law to
substantiate that assertion."
 61 The United States argues that Arge ntina failed to satisfy this burden
because it introduced merely one case before the Panel in support of its allegations as to the meaning

57Panel Report, heading to paras. 7.158-7.165.
59Ibid.
60See infra, para. 223.
61United States' appellant's submission, para. 77 (quoting Appellate Body Report, US – Carbon Steel ,
para. 157).

of the waiver provisions. In addition, the United States contends that Argentina failed to establish that
the company-specific
62 determinations made by the USDOC as a result of the operation of the waiver
provisions "had an impact" 63 on the agency's order-wide 64 determinations. Nevertheless, according to
the United States, the Panel not only decided "to fill in the gaps in Argentina's claim", but it also
"willfully ignored" the contradicting evidence introduced by the United States.
65 In the United States'
view, by making findings on issues for which Argentina had not made out a prima facie case, the
Panel failed to meet its obligations under Article 11 of the DSU.
(b) Consistency of the Waiver Provisi ons with Article 11.3 of the Anti-
Dumping Agreement
32. The United States claims that the Panel erred in finding that Section 751(c)(4)(B) of the Tariff
Act of 1930 and Section 351.218(d)(2)(iii) of the USDOC Regulations do not allow the USDOC to
make an order-wide likelihood determinati on consistent with Article 11.3 of the Anti-Dumping
Agreement.
33. The United States recalls the Appellate Body's finding in US – Corrosion-Resistant Steel
Sunset Review that Article 11.3 does not prohibit sunset review determinations from being made on
an order-wide basis. In the light of this readi ng, and given that the USDOC makes sunset review
determinations on an order-wide basis, the United States submits that the Panel should have evaluated
whether the waiver provisions prevent the USDOC from making an order-wide determination
consistent with Article 11.3. Instead, the Pane l examined the WTO-consistency of the waiver
provisions as they relate to company-specific determinations made by the USDOC. After doing so,
according to the United States, the Panel "imputed " to order-wide determin ations the alleged WTO-
inconsistency of the company-specific determinations that result from the operation of the waiver
provisions.66
34. The United States points out that if a respondent waives its participation in a sunset review,
the USDOC makes an affirmative lik elihood-of-dumping determination exclusively for that
respondent. The United States argues that this company-specific determination, however, does not
influence the order-wide determination because the latter is conducted "independently" of individual
company-specific determinations. 67 In this regard, the United States emphasizes that under United

62See infra, footnote 327.
63United States' response to questioning at the oral hearing.
64See infra, footnote 326.
66Ibid., para. 38.
67Ibid., paras. 42 and 48.

States law, the USDOC is required to base its or der-wide determination on all the record evidence
before the agency, including evidence from incomplete submissions of respondents that are deemed to
have waived their participation. Because the orde r-wide determination is based on such totality of the
evidence, in the United States' view, the waiver provisions do not prevent the USDOC from arriving
at a likelihood-of-dumping determination consistent with the requirements of Article 11.3.
35. The United States, therefore, requests the Appe llate Body to reverse the Panel's finding
that Section 751(c)(4)(B) of the Tariff Act of 1930 and Section 351.218(d)(2)(iii) of the USDOC
Regulations are inconsistent with Article 11.3 of the Anti-Dumping Agreement.
(c) Consistency of the "Deemed" Waiver Provision with Articles 6.1 and
6.2 of the Anti-Dumping Agreement
36. The United States also appeals the Panel's finding that Section 351.218(d)(2)(iii) of the
USDOC Regulations (the "deemed" waiver provision 68) is inconsistent with Articles 6.1 and 6.2 of
the Anti-dumping Agreement. The United States claims that Section 351.218(d)(2)(iii), in contrast to
Articles 6.1 and 6.2, "does not address the issue of the kind of information that can be provided in a
sunset review". 69 Rather, Section 351.218(d)(2)(iii) specifi es the consequences of a respondent's
failure to file a complete respon se, namely, that the respondent will be deemed to have waived its
right to participation in the dumping phase of the sunset review. The United States points to other
USDOC regulations that provide numerous opportu nities for respondents to submit information and
respond to other parties' arguments during the course of a sunset review proceeding. In the light of
these regulations, the United States submits, the Pane l erred in concluding that respondents are not
given the opportunity provided for in Articles 6.1 and 6.2 of the Anti-Dumping Agreement by virtue
of Section 351.218(d)(2)(iii) of the USDOC Regula tions. In the United States' view, the Panel's
interpretation of the deemed waiver provisions provi des parties with an "indefinite right" to present
evidence and request a hearing during a sunset review.70
(d) Article 11 Claims Relating to the Panel's Findings on Waivers
37. The United States claims that the Panel acted in consistently with Article 11 of the DSU in
two respects: first, in assessing the relationship between company-specific and order-wide
determinations under United States law; a nd secondly, in assessing how the USDOC determines
whether a respondent's submission qualifies as a "complete substantive response" under
Section 351.218(d)(2)(iii) of the USDOC Regulations.

68See infra, para. 223.
70Ibid., para. 55.

38. With regard to the first claim, the United States argues that the Panel erred in concluding that
the waiver provisions are inconsistent with Article 11.3 "[t]o the extent" that order-wide likelihood
determinations are based on company-specific determinations.
71 According to the United States, the
record before the Panel contains several clarif ications by the United States that the order-wide
determinations are not "based on"72 company-specific determinations, and that the USDOC is required
to consider all the record evidence when making an or der-wide likelihood determination. The
United States claims that, even assuming arguendo that the USDOC arrived at an improper
company-specific determination, the other reco rd evidence may be sufficient for the USDOC to
support a reasoned and adequate order-wide determ ination. The United States contests the Panel's
reliance on one statement by the United States, in response to questioning from the Panel, that a
company-specific determination " may affect" the order-wide likelihood determination. 73 According
to the United States, it does not follow from this st atement that the former is "dispositive" of the
latter.74
39. The United States perceives the "same defective technique" in the Panel's analysis of the
consistency of the deemed waiver provi sion with Articles 6.1 and 6.2 of the Anti-Dumping
Agreement.75 The United States observes that the Panel referred to the USDOC "practice" as support
for its findings, but cited only one case submitted by Argentina. 76 In addition, the United States
alleges a "lack of objectivity" on the part of the Panel because it "ignored" the United States' contrary
explanations and examples concerning its own practice 77, which reflected how the incomplete
information submitted by a respondent, although not used in the company-specific determination,
would be considered on the order-wide level.
40. With regard to its second claim under Article 11 of the DSU, the United States challenges the
Panel's conclusion that, in order for a submission to be considered a "complete substantive response"
by the USDOC, it must include information on all of the items listed in Section 351.218(d)(3) of the
USDOC Regulations. The United States alleges th at in so concluding, the Panel "ignored" 78
explanations submitted by the United States, although they clearly showed that: determining whether

72Ibid., paras. 59 and 61-63.
73Ibid., para. 61 (quoting United States' response to Question 4(b) posed by the Panel at the Second
Panel Meeting (Panel Report, Annex E, p. E-93, para. 3)). (original emphasis)
74Ibid., para. 61.
75Ibid., para. 65.
77Ibid., para. 66.
78Ibid., para. 75.

a submission is incomplete is assessed on a case-by- case basis; the USDOC has the authority under
its regulations to waive deadlines for respondents; and, in certain circumstances, a submission
containing incomplete information may nevertheless be treated as a "complete substantive response".
Moreover, according to the United States, Argentin a provided no evidence to the Panel contradicting
the United States' explanations as to the discr etion afforded the USDOC to accept incomplete
submissions as "complete substantive responses".
41. In the light of these arguments, the United St ates requests the Appellate Body to reverse the
Panel's finding that Section 751(c)(4)(B) of the Ta riff Act of 1930 and Secti on 351.218(d)(2)(iii) of
the USDOC Regulations are inconsistent, as such, with Article 11.3 of the Anti-Dumping Agreement.
The United States also requests the Appellate Body to reverse the Panel's finding that Section
351.218(d)(2)(iii) of the USDOC Regulations is inconsis tent, as such, with Articles 6.1 and 6.2 of the
Anti-Dumping Agreement.
B. Arguments of Argentina – Appellee
1. The Panel's Terms of Reference
42. Argentina agrees with the Panel's conclusion that the claims raised by Argentina in its written
submissions, including the "as such" claims relating to the "irrefutable presumption" and the "as such"
and "as applied" claims under Articles 3.7 and 3.8 of the Anti-Dumping Agreement, fall within the
Panel's terms of reference. Argentina therefor e requests the Appellate Body to uphold the Panel's
findings rejecting the United States' preliminary ruling requests on these issues.
(a) "As Such" Claims Relating to the United States Department of
Commerce's Likelihood-of-Dumping Determination
43. Argentina argues that its "as such" claims re lating to the "irrefutable presumption" under
United States law are located in Section A.4 of the panel request, which, by referring to the
"irrefutable presumption under US law as such", info rmed the United States that Argentina would be
making an "as such" challenge. Given the referen ces to the alleged presumption in United States law
and practice, in addition to the underlying sunset re view determination, Argentina claims that "it is
axiomatic that in order for the [USDOC's] application of the presumption to be WTO-inconsistent, the
U.S. law establishing such a presumption must also be WTO-inconsistent as such". 79 Furthermore,
according to Argentina, "page four" of the pane l request makes clear which provisions of United

79Argentina's appellee's submission, para. 121. (original underlining; italics omitted)

States law are the subject of challenge. In Argen tina's view, the United States' arguments ignore the
requirement that Article 6.2 claims must be evaluated by looking at the panel request "as a whole".
80
(b) "As Such" and "As Applied" Claims Relating to the United
States International Trade Commission's Likelihood-of-Injury
Determination
44. With respect to the United States' "contingent" 81 claim that the panel request did not
sufficiently specify Argentina's challenge under Ar ticles 3.7 and 3.8, Argentina agrees with the
Panel's reasoning. In Argentina's view, the Panel co rrectly recognized that the reference to Article 3
in Section B.3 of the panel request placed the Unite d States on notice that Argentina's claim about the
temporal limitation of a sunset review determin ation necessarily related, in part, to Articles 3.7
and 3.8. Argentina also argues that a complaini ng party may satisfy the requirements of Article 6.2
by listing only the treaty articles it considers to have been infringed by the respondent Member. 82 In
this regard, Argentina recalls th e Appellate Body's decision in Korea – Dairy and states that the
listing of treaty articles "will be considered to be insufficient only in cases where the defending party
is able to demonstrate to the Panel that it has su ffered actual prejudice during the course of the panel
proceedings".83
(c) Prejudice
45. Argentina submits that the United States has not demonstrated prejudice resulting from the
purported lack of clarity in Argentina's panel requ est. According to Argentina, a demonstration of
prejudice is a "sine quo non" 84 of a successful challenge under Article 6.2 of the DSU, and the United
States appears to agree with this requirement, as evidenced by the United States' argumentation before
the panels in Canada – Wheat Exports and Grain Imports and Mexico – Anti-Dumping Measures on
Beef and Rice .85 Argentina argues that the "ill-defined complaints about delay" made by the United
States are insufficient to satisfy the requirement to demonstrate prejudice. 86 Moreover, Argentina
claims, the United States' participation in the pane l proceedings belies its complaint about its inability
to defend itself because of the alleged vagueness of Argentina's panel request.

81United States' appellant's submission, heading IV.B.2.
82Argentina's appellee's submission, para. 142 (quoting United States' appellant's submission, para.
102).
83Ibid., para. 147.
84Ibid., para. 148.
85Ibid., paras. 151-152.
86Ibid., para. 185.

46. Argentina therefore requests the Appellate B ody to find that Argentina's panel request
satisfies the requirements of Article 6.2 and to uph old the Panel's findings that the claims raised by
Argentina in its written submissions to the Panel fell within the Panel's terms of reference.
2. The Sunset Policy Bulletin
47. Argentina submits that the Panel correctly foun d that the SPB is a "measure" for purposes of
WTO dispute settlement and that Section II.A.3 of th e SPB is inconsistent, as such, with Article 11.3
of the Anti-Dumping Agreement.
(a) The Sunset Policy Bulletin as a "Measure"
48. Argentina argues that the United States' inte rpretation of the Appellate Body Report in US –
Corrosion-Resistant Steel Sunset Review is erroneous. For Argentina, the Appellate Body clarified in
that case that a "measure", for the purpose of WT O challenges, includes administrative instruments
such as the SPB. Argentina submits that the fact that the Appellate Body in US – Corrosion-
Resistant Steel Sunset Review did not have a sufficient evidentiary basis to complete the analysis with
respect to some of Japan's claims, does not cast doub t on its conclusion that the SPB is a measure that
could, with an appropriate evidentiary basis, give rise to a finding of inconsistency, as such, with
Article 11.3. Argentina points out that the Appe llate Body proceeded, as a second step, to complete
the analysis with respect to Japan's claim of incons istency, as such, of Section II.A.3 of the SPB with
Article 11.3 of the Anti-Dumping Agreement , only after having concluded, as a first step, that the
SPB is a measure challengeable, as such, in WTO dispute settlement.
49. Argentina contests the United States' claim that the Panel did not comply with its obligations
under Article 11 of the DSU when concluding that the SPB is a measure. Argentina argues that the
reasoning of the Appellate Body in US – Corrosion-Resistant Steel Sunset Review was directly
relevant to the Panel's analysis of the issue befo re it, and that the Panel was correct in using the
Appellate Body's findings in that case as a tool fo r its own reasoning. Argentina submits that the
USDOC "consistent practice", as set forth in Exhibits ARG-63 and ARG-64 87, demonstrates that the
USDOC considers the SPB to be binding. 88 According to Argentina, "[t]he U.S. assertions that the
SPB 'does not "do" anything,' that it is 'not a legal instrument,' and that it is 'non-binding' do not
survive even routine scrutiny when they are viewed against the text of the sunset determinations,
representative of the [USDOC] practice, taken from [Exhibit] ARG-63."
 89 Argentina adds that the

87See infra, para. 203.
89Ibid., para. 22 (quoting United States' appellant's submission, paras. 11 and 13). (footnotes omitted)

factual record, including the evidence in Exhibit ARG-63 and the Panel's findings, must be evaluated
in the light of the standard under Article 11 of the DSU, and that "the bar for DSU Article 11
challenges is quite high" as there must be a delibe rate disregard of or refusal to consider the
evidence.
90 According to Argentina, the United States did not put forward any credible argument that
would suggest that the Panel did not meet the "high" standard of Article 11 of the DSU.
(b) Consistency of Section II.A.3 of the Sunset Policy Bulletin with
Article 11.3 of the Anti-Dumping Agreement
50. Argentina contends that it submitted extens ive evidence to the Panel of the USDOC's
"consistent application" of Section II.A.3 of the SPB. 91 Argentina argues that, under the guidance
provided by the Appellate Body in US – Corrosion-Resistant Steel Sunset Review , the Panel had
before it ample evidence to discern the meaning of S ection II.A.3 and to find that the three criteria
therein are inconsistent, as such, with Article 11. 3. According to Argentina, Exhibits ARG-63 and
ARG-64 demonstrate that the USDOC follows the in structions of Section II.A.3 in every sunset
review, and that each time it finds that at least one of the three criteria is satisfied, the USDOC makes
an affirmative finding of likely dumping without cons idering additional factors. For Argentina, the
USDOC's "consistent application" of the provisions of Section II.A.3 of the SPB indicates that the
three scenarios of Section II.A.3 are conclusive of the likelihood of continuation or recurrence of
dumping.
92 Argentina underscores the Panel's finding th at the United States had failed to rebut
Argentina's arguments, as well as the evidence in Exhibits ARG-63 and ARG-64 underlying those
arguments, that the USDOC always treats as conclusive the fact that the margin and volume data in a
given case fall under one of the three scenarios. For Argentina, because Section II.A.3 of the SPB
requires the USDOC to apply a mechanistic presumption of likely dumping, Section II.A.3 is
inconsistent, as such, with Article 11.3 of the Anti-Dumping Agreement.
51. Argentina maintains that the a ssessment that led the Panel to conclude that the SPB is
inconsistent, as such, with Article 11.3 of the Anti-Dumping Agreement was proper under Article 11
of the DSU. According to Argentina, Article 11 of the DSU did not require the Panel to defer to the
United States' representations as to the meaning of the SPB. Thus, Argentina rejects the United
States' contention that the Panel's analysis of th e SPB did not reflect an "objective assessment" under
Article 11 of the DSU on the ground that it neglected the status and meaning of the SPB within the

91Ibid., para. 27.
92Ibid., para. 32.

municipal legal system of the United States. For Argentina, the assertions made by the United States
that the SPB has "no independent legal status" and does not "do" anything are not sufficient to
overcome the evidence presented by Argentina on the operation and effect of the SPB.93
52. Argentina accordingly requests the Appellate Body to uphold the Panel's findings that the
SPB is a "measure" subject to challenge in WTO di spute settlement, and that Section II.A.3 of the
SPB is inconsistent, as such, with Article 11.3 of the Anti-Dumping Agreement.
3. Waiver Provisions of United States Laws and Regulations
53. Argentina argues that the Panel did not err in concluding that Section 751(c)(4)(B) of the
Tariff Act of 1930 and Section 351.218(d)(2)(iii) of the USDOC Regulations are inconsistent, as such,
with Article 11.3 of the Anti-Dumping Agreement. Argentina also agrees with the Panel's conclusion
that Section 351.218(d)(2)(iii) of the USDOC Regulati ons is inconsistent, as such, with Articles 6.1
and 6.2 of the Anti-Dumping Agreement.
(a) Argentina's Prima Facie Case
54. Argentina contends that, contrary to the Unite d States' claim on appeal, Argentina submitted
sufficient evidence to make out its prima facie case of inconsistency with Articles 6.1, 6.2, and 11.3.
Argentina points to the text of the waiver provision s as evidence of their "mandatory nature" and to
show that they require action not pe rmitted by Articles 6.1, 6.2, and 11.3. 94 With respect to the
relationship between company-specific and order-wide likelihood determinations under United
States law, Argentina refers to various sections of its written submissions and oral statements before
the Panel, wherein Argentina addressed this relations hip in connection with particular USDOC sunset
review determinations. 95 Argentina also notes that the United States did not rebut the statistics
provided by Argentina to the Panel in relation to the USDOC's sunset review determinations
contained in Exhibits ARG-63 and ARG-64. As such, Argentina claims that it established the prima
facie case necessary for the Panel to draw its conclusi ons as to the WTO-consistency of the waiver
provisions.

93Argentina's appellee's submission, para. 44 (quoting United States' closing statement at the Second
Panel Meeting, para. 2).
94Ibid., para. 95.
95Argentina's responses to questioning at the oral hearing.

(b) Consistency of the Waiver Provisi ons with Article 11.3 of the Anti-
Dumping Agreement
55. Argentina argues that Section 751(c)(4)(B) of the Tariff Act of 1930 requires the USDOC to
make an affirmative determinati on of likely dumping with respect to respondents that waive their
right to participation in a sunset review. Accordi ng to Argentina, this requi rement applies to those
respondents that submit affirmative waivers, pursu ant to Section 751(c)(4)(B), as well as to those
respondents that are deemed by the USDOC, pursuant to Section 351.218(d)(2)(iii) of the USDOC
Regulations, to have waived their right to particip ate. Argentina contends that the mandated finding
of a likelihood of dumping is inconsistent with Ar ticle 11.3, which requires a determination to be
based on an investigation and evaluation of the evidence rather than on assumptions. Given this
inconsistency, Argentina argues that the United Stat es' characterization of the waiver provisions as a
mechanism to permit respondents to focus their reso urces on the injury phase of the sunset review is
not persuasive.
56. In Argentina's view, "[t]hat the waiver provisi ons affect the order-wide determination cannot
be disputed."
 96 Argentina posits, in particular, cases wh ere there may be only one respondent, or
where all the respondents waive their right to pa rticipation, as examples where the order-wide
determination could not be made c onsistently with the obligations under Article 11.3. In addition,
Argentina observes that the United States agrees that the company-specific determination "may
affect" the order-wide likelihood determination. 97 Therefore, Argentina claims that the waiver
provisions prevent the United States' from making order-wide likelihood determinations in the manner
required by Article 11.3.
(c) Consistency of the "Deemed" Waiver Provision with Articles 6.1 and
6.2 of the Anti-Dumping Agreement
57. According to Argentina, the USDOC, under Section 351.218(d)(2)(iii) of the USDOC
Regulations, deems a respondent to have waived its right to participation in the dumping phase of the
sunset review where a respondent files no submissi on or an incomplete submission in response to the
notice of initiation of the sunset review. Arge ntina argues that once th e USDOC makes such a
finding, it is required to make an affirmative likelih ood-of-dumping determination with respect to that
respondent, notwithstanding that "respondent's attemp ts to participate in the sunset proceeding". 98
Thus, Argentina submits, a respondent deemed to have waived its right to participation does not have

97Ibid. (quoting United States' appellant's submission, para. 61; in turn quoting United States' response
to Question 4(b) posed by the Panel at the Second Panel Meeting (Panel Report, Annex E, p. E-93, para. 3)).
98Ibid., para. 76.

adequate opportunity to defend its interests, as re quired by Articles 6.1 and 6.2. Argentina states
further that the United States fails to identify in its appellant's submission any allegation of legal error
with respect to the Panel's analysis of this issue. Consequently, in Argentina's view, the Appellate
Body has "no basis" to rule on the United States' claim on appeal.99
(d) Article 11 Claims Relating to the Panel's Findings on Waivers
58. Argentina argues that a successful claim under Article 11 of the DSU requires a showing of
"deliberate disregard of, or refusal to consider" evidence submitted by the Member.100 The challenges
of the United States to the Panel's evaluation of Ar gentina's claims as to the waiver provisions does
not satisfy this requirement. With respect to the relationship between company-specific and order-
wide determinations of dumping, Argentina submits that, given the United States' admission that a
company-specific determination may affect the order-wide determination, the United States' challenge
amounts to a complaint about the Panel's appreciati on of the evidence before it. Argentina claims
that, even if the mandated affirmative likelihood de termination is made only with respect to a
particular respondent, the final or der-wide determination would not sa tisfy the "exacting obligations"
of Article 11.3.101
59. Argentina also contests the United States' argument that the Panel failed to properly evaluate
what constitutes a "complete substantive response" under the USDOC Regulations. Argentina argues
that the relevant aspect of the Panel's analysis relates to the " effect of a deemed waiver in light of the
requirements of Articles 6.1 and 6.2".102 As such, the United States' emphasis on the conditions under
which the USDOC deems a respondent to have waiv ed its right to participation is inapposite.
Argentina therefore argues that th e United States' claims under Artic le 11 of the DSU do not satisfy
the standard established by the Appellate Body for fi nding that a panel acted inconsistently with its
obligations under that provision.
60. Argentina therefore requests the Appellate Body to uphold the Panel's findings that Section
751(c)(4)(B) of the Tariff Act of 1930 and Section 351.218(d)(2)(iii) of the USDOC Regulations are
inconsistent, as such, with Article 11.3 of the Anti-Dumping Agreement. Argentina also requests the
Appellate Body to uphold the Panel's finding that Section 3 51.218(d)(2)(iii) of the USDOC
Regulations is inconsistent, as such, with Articles 6.1 and 6.2 of the Anti-Dumping Agreement.

101Ibid., para. 87 (quoting Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review ,
para. 113).
102Ibid., para. 91. (original emphasis)

C. Claims of Error by Argentina – Appellant
1. Factors to be Evaluated in a Likelihood-of-Injury Determination

61. Argentina argues that the Panel erred in not interpreting Article 11.3 of the Anti-Dumping
Agreement to encompass certain "substantive disciplines" , and in consequently "failing to find" that
the USITC's likelihood-of-injury determination in the underlying dispute ("as applied") is inconsistent
with Article 11.3 on the ground that it did not apply these disciplines. 103 Argentina submits that,
"[i]n the alternative" 104, the Panel erred in finding that the disciplines contained in Article 3 do not
apply to sunset reviews conducted pursuant to Ar ticle 11.3. Argentina accordingly requests the
Appellate Body to "complete the analysis" and to fi nd that the USITC's determination is inconsistent
with Articles 3.1, 3.2, 3.4, and 3.5.105
62. In Argentina's view, footnote 9 of the Anti-Dumping Agreement sets out the definition
of "injury", as that term is used throughout the Agreement. This is clear from the language of
footnote 9, which states that the definition applies "[u] nder this Agreement" and that "the term 'injury'
... shall be interpreted in accordance with the provi sions of this Article". As a result, Argentina
claims, Article 11.3, which requires an assessment of the likelihood of continuation or recurrence of
"injury", must incorporate the definition of "injury" found in footnote 9.
63. Argentina argues that the Panel failed to r ecognize that Article 11.3 contains certain
obligations with which the USITC failed to co mply in arriving at its likelihood-of-injury
determination. Argentina contends that the obliga tions of Article 11.3—to undertake a "review" and
make a "determin[ation]" before extending anti-dum ping duties beyond five years—have been given
further meaning in the decisions of the Appellate Body in US – Carbon Steel and US – Corrosion-
Resistant Steel Sunset Review . Argentina submits that, consistent with the aforementioned Appellate
Body decisions, a sunset review determination under Article 11.3 "must have a sufficient factual basis
to allow it to draw reasoned and adequate conclusi ons" concerning the likelihood of continuation or
recurrence of dumping and injury.106
64. Argentina claims that the "review" and "determin[ation]" mandated by Article 11.3
encompass, "at a minimum", the following requirements: (1) an objective examination of the volume
of dumped imports and the effect of the dumped im ports on prices, as well as the consequent impact
of the imports on domestic producers; (2) an eval uation of all relevant economic factors having a

103Argentina's other appellant's submission, para. 144.
104Ibid., para. 146.
105Ibid., para. 214.
106Ibid., para. 141.

bearing on the state of the industry; (3) the demonstration of a causal relationship between the
dumped imports and the injury to the domestic indu stry; and (4) a determination based on facts and
"not merely on allegation, conj ecture or remote possibility". 107 In Argentina's view, an investigating
authority that fails to comply with these requi rements cannot arrive at a reasoned conclusion
supported by a sufficient factual basis, as require d by Article 11.3. Because the USITC's likelihood-
of-injury determination did not meet these require ments, Argentina argues, the determination is
inconsistent with Article 11.3.
65. As an "alternative" to its argument regardi ng the scope of obligations under Article 11.3,
Argentina submits that the steps outlined in Article 3 for a determination of injury apply as well to
sunset reviews under Article 11.3. 108 Argentina claims that, by virtue of the definition of "injury" in
footnote 9, any determination of injury, including a likelihood-of-injury determination, must be made
according to the provisions of Article 3. Argentina argues that the Panel's finding to the contrary with
respect to footnote 9 "reduces to redundancy or inu tility" the Agreement-wide definition of injury set
forth therein.109
66. Argentina finds support for the applicability of Ar ticle 3 to sunset reviews in Article 3.1,
which provides for a "determination of injury for purposes of Article VI of GATT 1994" to be made
in accordance with the remaining paragraphs of Article 3. Argentina claims that, because a
likelihood-of-injury determination in sunset reviews is "unquestionably" 110 such a "determination of
injury", the disciplines of Article 3 apply to sunset reviews. In this regard, Argentina argues that the
Panel's distinction between a "determination of in jury" and a "determination of the likelihood of
continuation or recurrence of injury", is not supported by the text of the Anti-Dumping Agreement
and is contrary to the definition of "injury" set forth in footnote 9.
67. Argentina additionally claims that the Panel's fa ilure to find Article 3 applicable to sunset
reviews is based on a "misinterpretation and misapp lication" of the Appellate Body's decision in
US – Corrosion-Resistant Steel Sunset Review .111 In that case, Argentina argues, the Appellate Body
distinguished "dumping margins" from "dumping dete rminations", finding that although Article 11.3
does not require investigating authorities to ca lculate margins, the provision does mandate a
determination as to the likelihood of dumping. Argentina contends that the Appellate Body found that
if dumping margins are nevertheless relied upon by an investigating authority in sunset reviews, those

107Argentina's other appellant's submission, para. 143.
108Ibid., para. 146.
109Ibid., para. 148.
110Ibid., para. 160.
111Ibid., paras. 167-168.

margins must conform to Article 2.4 in order to render WTO-consistent the sunset review
determination. Given this finding with respect to a " discretionary act"
112, that is, the reliance on
dumping margins, Argentina argues, investigating authorities in sunset reviews must conform to
Article 3 when making likelihood-of-injury determinations, which are required by Article 11.3.
68. Argentina contends that because the Panel erred in concluding that Article 3 does not apply to
sunset reviews, the Panel consequently erred in failing to evaluate Argentina's claims under
Articles 3.1, 3.2, 3.4, and 3.5 of the Anti-Dumping Agreement. Accordingly, Argentina requests the
Appellate Body to "complete the analysis" and fi nd the USITC's likelihood-of-injury determination to
be inconsistent with the United States' obligations under these provisions.113 In this respect, Argentina
incorporates on appeal the arguments it made before the Panel on these claims.
69. In sum, Argentina requests the Appellate Body to find that the Panel erred in failing to
interpret Article 11.3 to encompass "substantive ob ligations" governing an investigating authority's
likelihood-of-injury determination, and in failing to find that the United States acted inconsistently
with these obligations. In the alternative, Arge ntina requests the Appellate Body to reverse the
Panel's finding that Article 3 does not apply to sunset reviews, and to find that the United States acted
inconsistently with Articles 3.1, 3.2, 3.4, and 3. 5 in its likelihood-of-injury determination in the
underlying dispute.
2. Cumulation in Sunset Reviews
70. Argentina argues that the Panel erred in finding that the Anti-Dumping Agreement "generally
allows the use of cumulation" and that the conditions set out in Article 3.3 for the use of cumulation
do not apply to sunset reviews.114
71. Argentina argues that the Anti-Dumping Agreement permits cumulation only in original
investigations. Argentina claims that contrary to the Panel's reading, the text of the Anti-Dumping
Agreement is not silent on this issue. Referring to the use of the term "duty" in the singular in
Article 11.3, Argentina submits that the drafters of the Anti-Dumping Agreement expected
investigating authorities to focus their sunset an alysis on one anti-dumping measure, not "multiple
antidumping measures". 115 As such, in Argentina's view, Ar ticle 11.3 requires an investigating

112Argentina's other appellant's submission, para. 176. (original emphasis)
113Ibid., para. 179.
114Ibid., para. 251.
115Ibid., para. 261.

authority to determine whether the expiry of a "duty", as applied to imports from a single WTO
Member, would be likely to lead to a continuation or recurrence of injury.
72. According to Argentina, the Panel's contrary interpretation is based on its view that the
relevance of a cumulative analysis in original inves tigations applies equally in the context of sunset
reviews. Argentina submits that the Panel's reas oning fails to account for "important differences"
between injury determinations in original inves tigations and likelihood-of-injury determinations in
sunset reviews.116 Investigating authorities in original i nvestigations have a "f actual foundation" to
evaluate the appropriateness of cumulating the effects of imports from multiple sources. 117 However,
according to Argentina, such a foundation may not exist for investigating authorities conducting
sunset reviews because, for example, imports from a particular Member may no longer be present in
the domestic market.
73. Argentina observes that Article 3.3 is limited to original investigations, and that Article 3.3
contains no cross-reference to Article 11. Given th is textual limitation, Argentina claims, Article 3.3
serves as a limited authorization for cumulation solely in the context of original investigations.
Argentina finds further support for its view in the te xt of Article VI of the GATT 1994, which refers
to injury caused by "products of one country", suggesting that a broad authorization for cumulation
was not intended by the treaty drafters. Without such broad authorization, and any specific language
permitting cumulation in sunset reviews, Argentin a submits that investigating authorities are not
permitted to engage in a cumulative analysis wh en making likelihood-of-injury determinations under
Article 11.3.
74. In Argentina's view, if cumulation were perm itted in sunset reviews, it follows that the
conditions for cumulation in Artic le 3.3 "must equally apply" b ecause, without such conditions,
investigating authorities would be given " carte blanche" in their conduct of sunset reviews, contrary
to the "disciplines" on cumulation negotiated during the Uruguay Round.
118
3. The Panel's Interpretation of the Term "Likely"
75. Argentina claims that the Panel erred in appl ying an incorrect interpretation of the term
"likely", as found in Article 11.3, and in refusing to consider as evidence the public acknowledgement
of the USITC that it had not applied the proper un derstanding of the term "likely" when making its
sunset review determinations.

116Argentina's other appellant's submission, para. 265.
117Ibid.
118Ibid., para. 278.

76. Argentina refers to the Appellate Body's decision in US – Corrosion-Resistant Steel Sunset
Review to confirm that the ordinary meaning of th e term "likely", as used in Article 11.3, is
"probable". Argentina argues that, despite this cl ear interpretation of the Appellate Body, the Panel
failed to interpret "likely" to mean "probable". Argentina submits that the Panel emphasized the fact
that the United States statute and the USITC's determ ination used the word "likely". In Argentina's
view, the mere use of this term could not establis h that the USITC had complied with Article 11.3.
Rather, Argentina submits, the Panel should have in terpreted "likely" to mean "probable", before
engaging in two "separate inquiries": first, whether the USITC applied the proper "likely" standard,
and second, whether the USITC applied this standard "in a WTO-consistent manner".
119
77. Argentina argues that the USITC failed to apply the proper interpretation of the term "likely"
when conducting its likelihood-of-injury determinati on. Argentina observes that the SAA, which
guides the USITC in its sunset review determinations, states that "[t]here may be more than one likely
outcome following revocation or term ination [of the anti-dumping order]." 120 According to
Argentina, the USITC, based on guidance found in the SAA, has consistently interpreted "likely" to
mean less than "probable". Argentina submits that the USITC acknowledged before a North
American Free Trade Agreement ("NAFTA ") dispute settlement panel that " it did not apply a
probable standard in the present case ".121 Argentina also points to the admission of the USITC
before a United States court that the agency had not employed a "probable" standard in several sunset
reviews, including that relating to OCTG from Argen tina. Argentina argues that the Panel erred in
concluding, despite the admissions of the USITC to the use of a WTO-inconsistent standard for
evaluating likelihood of injury, that these admissions were not relevant to the Panel's analysis of
Argentina's claim.
4. Consistency of the USITC's Determination with the Standard of "Likelihood"
in Article 11.3 of the Anti-Dumping Agreement
78. Argentina challenges the Panel's conclusion that the various analyses in the USITC's
likelihood-of-injury determination do not render that determination in consistent with Article 11.3.
Argentina contests, in particular, the Panel's findings that the USITC did not act inconsistently with
Article 11.3 in the following respects: (1) deciding to cumulate the effects of likely imports from
Argentina with the effects of likely imports from other sources; (2) determining that volumes of
imports would be likely to increase; (3) determini ng that future imports would be likely to depress or

119Argentina's other appellant's submission, para. 50. (Argentina's emphasis omitted)
120Ibid., para. 27 (quoting SAA, p. 883).
121Ibid., para. 29. (original italics, underlining, and boldface)

suppress prices of the domestic like product; and (4) determining that future imports would be likely
to have an adverse impact on the domestic industry.
79. Citing the Appellate Body's decision in US – Corrosion-Resistant Steel Sunset Review ,
Argentina argues that a sunset review determin ation under Article 11.3 must be supported by
"positive evidence" and be the result of an "objective examination". This requirement of Article 11.3,
in Argentina's view, should be understood in the li ght of the standard of "likelihood" embodied in
Article 11.3. Argentina submits that the "likel y" standard "directly affects the investigating
authority's obligation to establish the facts properl y, because the factual basis necessary to support a
likely/probable finding is different from the facts necessary to support a finding that is less than
probable."122 Argentina claims that, in evaluating the USITC's likelihood-of-injury determination in
the present case, the Panel failed to recognize this relevance of the "lik ely" standard and, as a result,
failed to assess the determination against the proper standard set out in Article 11.3. Instead,
Argentina contends, the Panel considered several of the factors cited by the USITC in the light of
whether they were possible.
(a) Cumulative Assessment of Dumped Imports
80. Argentina observes that the USITC's likelihood- of-injury determination is premised on its
examination of cumulated imports rather than on imports from Argentina alone. Argentina argues
that, although it had raised the issue of the cons istency of the USITC's cumulation analysis with
Article 11.3, the Panel failed to assess whether th e USITC's decision to conduct a cumulative analysis
satisfied the requirements of Article 11.3.
81. According to Argentina, the USITC acted inc onsistently with Article 11.3 in assessing one of
the factors supporting its decision to conduct a cu mulative analysis, namely, the "simultaneous
presence" of imports from all sources and the do mestic like product in the same geographical
market.123 Argentina submits that the USITC's decision on this factor was "based almost exclusively
on an inference drawn from the original investigation". 124 In Argentina's view, the USITC referred to
the simultaneous presence of imports and the domestic like product at the time of the original
investigation and concluded from this observation that imports and the domestic like product are
likely to be simultaneously present in the same market in the future. Such an "assumption" 125,
Argentina claims, is inconsistent with the require ment under Article 11.3 for investigating authorities

122Argentina's other appellant's submission, para. 63.
124Ibid., para. 73.
125Ibid., para. 75.

to make a "fresh determination"
126 in sunset reviews instead of re lying solely on the determination
made in the original investigation.
(b) Likely Volume of Dumped Imports
82. Argentina argues that the Panel erred in concl uding that the USITC's analysis of the likely
volume of dumped imports was adequately supporte d to satisfy the requirement of Article 11.3.
Argentina identifies several factors relied upon by the USITC in making its conclusion as to the likely
volumes of dumped imports, including declining volumes following the issuance of the anti-dumping
orders; the consolidation of several foreign pro ducers; the incentives for foreign producers to shift
production to the subject merchandise; barriers to the exports of the subject merchandise to other
markets; and barriers in the United States market to products made in the same production facilities
as the subject merchandise. Argentina alleges that the USITC's conclusion on these factors is not
based on positive evidence, but on unreasonable inferences and "ignore[s]"
127 contrary evidence on
the record submitted by Argentina. Therefore, in Argentina's view, the USITC's conclusion with
respect to likely volumes amounts to "speculation" and cannot constitute a proper establishment of the
facts necessary to determine what is probable to occur. 128
(c) Likely Price Effects of Dumped Imports
83. Argentina challenges the Panel's conclusion that the USITC's analysis of likely price effects
of dumped imports was not inconsistent with Ar ticle 11.3. Argentina claims that the USITC
erroneously relied solely on information collected during the original investigation when finding that
price differences would be likely to cause purchasers to change supply sources, and that importers
would be likely to engage in "aggressive pricing practices". 129 In addition, Argentina submits, the
USITC's finding that imports in the year preceding the sunset review were generally priced lower than
the domestic like product was not adequately suppo rted because the record evidence contained a
"limited basis of information from which to draw such conclusions". 130 The finding that foreign
producers would seek to increase their market share by lowering prices, in Argentina's view, was also
"not objective" because it "contradicted" the theo ry relied upon by the USIT C to support its likely

126Argentina's other appellant's submission, para. 74 (quoting Appellate Body Report, US – Carbon
Steel, para. 88).
127Ibid., para. 94.
128Ibid., paras. 83-84, 88, 90, 94, and 98.
129Ibid., para. 111 (quoting USITC Report, p. 21, footnote 144). (Argentina's emphasis omitted)
130Ibid., para. 109.

volumes analysis, namely, that higher prices in th e United States would provide incentives to foreign
producers to ship to that market.131
(d) Likely Impact of Dumped Imports on the United States' Industry
84. Argentina submits that, having noted that the USITC had found the health of the domestic
industry to be positive at the time of the sunset re view, "[t]his finding should have led the Panel to
conclude that an adverse impact was not probable." 132 According to Argentina, the Panel failed to so
conclude and, instead, upheld the USITC's impact finding on the basis that Article 11.3 would be
satisfied provided that the agen cy's determination were based on a sufficient factual basis and an
objective examination of the facts. Argentina argu es the Panel's reasoning to be in error because an
investigating authority "must also demonstrate, among other things, that injury would be probable if
the order were revoked".133
85. In the light of these alleged errors in sever al aspects of the USITC's likelihood-of-injury
analysis, Argentina requests the Appellate Body to reverse the Panel's finding that the United States
did not act inconsistently with Article 11.3 in de termining that revocation of the anti-dumping order
on OCTG from Argentina would be likely to lead to continuation or recurrence of injury.
5. The Timeframe in a Likelihood-of-Injury Determination
86. Argentina claims that the Panel erred in findin g that Sections 752(a)(1) and 752(a)(5) of the
Tariff Act of 1930, as such, as well as the application of these provisions in the underlying sunset
review, are not inconsistent with Article 11.3.
87. Argentina observes that footnote 9 of the Anti-Dumping Agreement requires the term
"injury" to be interpreted "in accordance with the pr ovisions of" Article 3. It follows, in Argentina's
view, that the injury evaluated by the investigating authority must continue or recur "within the period
of time beginning with the 'expiry' of the order but not exceeding circumstances deemed to be
'imminent' within the meaning of Article 3.7".
134 According to Argentina, the investigating authority's
failure to specify the time period in which injury is likely to continue or recur, which time period in
any event must be less than "imminent", is also inconsistent with the obligation under Article 11.3

131Argentina's other appellant's submission, para. 110.
132Ibid., para. 116.
133Ibid., para. 118. (original emphasis)

that investigating authorities must base their sun set review determinations on a "firm evidentiary
foundation".
135
88. Argentina alleges that Sections 752(a)(1) a nd 752(a)(5) of the Tariff Act of 1930 are
inconsistent with Article 11.3 of the Anti-Dumping Agreement because they provide for the
investigating authority to evaluate the likelihood of injury to the domestic industry occurring within a
"reasonably foreseeable time". 136 Argentina points to language in the United States statute and the
SAA that requires the USITC to consider injury beyond an "imminent" time period but sets no
specific limits on when that injury may occur. Arge ntina submits that this "unbridled discretion" to
evaluate the likelihood of injury recurring at some undetermined point in the future is incompatible
with the requirements of Article 11.3. 137 In Argentina's view, the exercise of such discretion in a
manner consistent with Article 11.3 requires that an investigating authority articulate the period of
time that forms the basis for its likelihood-of-injury determination. In addition, Argentina argues that,
by allowing the continued imposition of anti-dumping duties during the time period after expiry of the
order—when there may be no present injury or th reat of material injury—Sections 752(a)(1) and
752(a)(5) create a "gap"138, which is contrary to the requirement in Article 11.1 that duties be imposed
only when necessary "to counteract dumping which is causing injury".139
89. Because Sections 752(a)(1) and 752(a)(5) of the Tariff Act of 1930 require the USITC to
evaluate injury beyond an "imminent" 140 time period, and the USITC employed such an unlimited and
unspecified time period in its likelihood-of-injur y determination, Argentina requests the Appellate
Body to reverse the Panel's finding that these stat utory provisions and their application in the
underlying sunset review are not inconsistent with Article 11.3 of the Anti-Dumping Agreement.
6. Conditional Appeals
90. If the Appellate Body were to reverse any of the Panel's conclusions on the basis of the
arguments of the United States, Argentina requests th e Appellate Body to address two issues that the
Panel declined to resolve for reasons of judicial economy: (1) the consistency, as such, of the
USDOC "practice" in sunset reviews with Article 11.3 of the Anti-Dumping Agreement; and (2) the

135Argentina's other appellant's submission, para. 232 (quoting Appellate Body Report, US – Corrosion-
136Ibid., para. 220.
137Ibid., para. 223.
138Ibid., para. 238.
139Ibid., para. 237 (quoting Anti-Dumping Agreement, Article 11.1). (underlining added by Argentina)
140Ibid., para. 221 (quoting Anti-Dumping Agreement, Article 3.7).

consistency of the USDOC's administration of anti-dumping laws and other measures with
Article X:3 of the GATT 1994.
(a) Challenge to the USDOC "Practice"
91. Argentina claims that the USDOC "practice" in sunset reviews is inconsistent with
Article 11.3 because the "practice" reveals a WTO-inconsistent presumption that dumping would be
likely to continue or recur whenever there is a "historical" dumping margin or a decline in import
volumes following the imposition of the anti-dumping duties.
141 Argentina points to the 223 USDOC
sunset review determinations c onducted through September 2003, subm itted to the Panel as Exhibits
ARG-63 and ARG-64, as evidence in support of its allegation. Argentina argues that the United
States has not rebutted its evidence, and thus, th e determinations in Exhibits ARG-63 and ARG-64
should be accepted as undisputed facts by the Appellate Body.
92. According to Argentina, this evidence dem onstrates that the USDOC has followed the
scenarios set out in Section II.A.3 of the Sunset Policy Bulletin to make an affirmative likelihood
determination in every instance of "historical" dumping margins or declining (or no) import
volumes.142 As such, in Argentina's view, these determ inations show that the finding by the USDOC
that a case falls under one of the sc enarios set out in Section II.A.3 of the SPB is "conclusive" of the
likelihood of dumping. 143 Argentina submits that, because th e USDOC does not consider additional
factors, the USDOC "practice" is inconsistent with the requirement in Article 11.3 to "determine" on
the basis of all relevant evidence whether dumping would be likely to continue or recur.
(b) Challenge under Article X:3(a) of the GATT 1994
93. Argentina claims that the United States is acti ng inconsistently with Article X:3 of the
GATT 1994 because the USDOC fails to administer anti-dumping laws and other measures in a
uniform, impartial and reasonable manner. The measu res identified by Argentin a in this respect are
those contained in Argentina's panel request, incl uding the underlying likelihood determinations by
the USDOC and the USITC, as well as certain statutory and regulatory provisions, procedures, and
administrative provisions. Referring to the USDOC sunset review determin ations contained in
Exhibits ARG-63 and ARG-64, Argentina argues that it is "not credible" that an investigating
authority, basing its reasoned analysis on positive ev idence, could arrive at an affirmative likelihood
determination in 100 per cent of the cases where the domestic industry sought to extend the anti-

141Argentina's other appellant's submission, para. 285.
142Ibid., para. 286.
143Ibid.

dumping measure beyond five years.
144 Such a record, in Argentin a's view, reflects a "clear and
undeniable pattern of biased and unreasonable decision making".145
D. Arguments of the United States – Appellee
1. Factors to Be Evaluated in a Likelihood-of-Injury Determination
94. The United States agrees with the Panel's interp retation of "injury" under Article 11.3 of the
Anti-Dumping Agreement , particularly as it concerns the factors required to be analyzed by an
investigating authority conducting a likelihood-of-injury inquiry.
95. The United States submits, first, that the US ITC's determination meets the standards of
Article 11.3, as set forth by the Appellate Body in previous decisions. In this respect the United
States points to the extensive data-gathering complete d by the USITC in the underlying sunset review
and the evidentiary underpinning of the agency's determination as reflecting the "positive evidence",
"rigorous examination", and "reasoned and adequate conclusions" required by Article 11.3.146
96. The United States supports the Panel's finding that Article 3 of the Anti-Dumping Agreement
does not apply generally to sunset reviews. The United States emphasizes the "different nature" of
original investigations when compared to sunset reviews. 147 The United States observes that original
investigations focus on the current condition of the domestic industry in order to ascertain present
injury or threat of material injury. However, sunset reviews under Article 11.3 are "counterfactual in
nature" and require a "decidedly different analysis", focusing not on present injury—which could
well no longer exist—but on the "likely impact of a prospective change in the status quo". 148 This
distinction between original investigations and su nset reviews, the United States claims, has been
recognized by the Appellate Body in US – Carbon Steel and US – Corrosion-Resistant Steel Sunset
Review.149
97. The United States further argues that, contrary to Argentina's claim, the Panel properly
understood the implications of the Appellate Body's decision in US – Corrosion Resistant Steel
Sunset Review for the resolution of this issue. In the Un ited States' view, the Appellate Body in that
case found that investigating authorities are not required to calculate dumping margins in a likelihood-

144Argentina's other appellant's submission, para. 296.
145Ibid., para. 296.
147Ibid., para. 90.
148Ibid., para. 94.
149Ibid., para. 95 (quoting Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review ,
paras. 106-107; in turn quoting Appellate Body Report, US – Carbon Steel, para. 87).

of-dumping determination, but that if they choose to perform such calculations, they must be done in
accordance with Article 2.4. The United States subm its that, in the context of likelihood-of-injury
determinations, the parallel reasoni ng would suggest that investigating authorities are not required to
make a determination of present injury during a sun set review, but if they choose to make such a
determination, they must observe the disciplines of Article 3. In addition, the United States points
out, the Appellate Body made it clear in US – Corrosion-Resistant Steel Sunset Review that
Article 11.3 prescribes no specific methodology for the conduct of sunset reviews, providing
additional support for its view that the analyses in Article 3 do not necessarily apply to sunset
reviews.
98. The United States argues that the Panel's unders tanding of the relationship between Article 3
and Article 11.3 accords with the text of the Anti-Dumping Agreement. The United States disagrees
with Argentina's argument that footnote 9 incorpor ates the disciplines of Article 3 into Article 11.3.
The United States notes that the provisions of Article 3 apply to a "determination of injury for
purposes of Article VI of the GATT 1994", as stated in Article 3.1. Article VI provides for dumping
to be counteracted where "it causes or threatens ma terial injury to an established industry in the
territory of a contracting party or materially re tards the establishment of a domestic industry."
Therefore, in the United States' view, the analyses prescribed in Article 3 apply only to the "three
bases for an affirmative determination in an original injury investigation", that is, to present injury,
threat of injury, and material retardation of the establishment of a domestic industry.
150 The United
States additionally claims that the determinations mandated by the paragraphs of Article 3 are "wholly
out of place" in a sunset review and would lead to "ludicrous" or "absurd" results.151
99. Finally, the United States submits that even if the Appellate Body were to reverse the Panel's
finding that Article 3 applies to sunset reviews, it could not complete the analysis because of the
limited factual findings by the Panel and the insufficient facts undisputed by the parties.
100. The United States accordingly requests th e Appellate Body to uphold the Panel's
interpretation of the term "injury" in Article 11.3 of the Anti-Dumping Agreement as not
incorporating the requirements of Article 3 for sunset reviews.

151Ibid., para. 112.

2. Cumulation in Sunset Reviews

101. The United States argues that the Panel did not err in finding that cumulation in sunset
reviews is not prohibited by the Anti-Dumping Agreement , and that the prerequisites set out in
Article 3.3 do not apply to a cumulative analysis conducted in the course of a sunset review.
102. With respect to the permissibility of cumulation in sunset reviews, the United States argues
that the text of the Anti-Dumping Agreement is "silent" on this issue and that "Members are free to
do that which is not prohibited." 152 Contrary to Argentina, the United States does not find instructive
the use of the term "duty", in the singular, in Artic le 11.3. The United States contends that the same
term is used in Article VI:6 of the GATT 1994, pu rsuant to which—prior to the conclusion of the
Uruguay Round—cumulation was "widespread" among investigating authorities. 153 The United
States also observes that the heading of Article 11 of the Anti-Dumping Agreement uses the term
"duties" instead of "duty", suggesting that the term "duty" in the singular does not carry the
significance ascribed to it by Argentina.
103. The United States argues that prohibiting cumulation in sunset reviews would be "illogical" in
the light of the rationale for cumulation recognized by the Appellate Body in EC – Tube or Pipe
Fittings.154 According to the United States, just as dumped imports from several sources
simultaneously might cause injury collectively in an original investigation, so, too, might the
simultaneous termination of anti-dumping duties impo sed on products from several sources be likely
to cause continuation or recurrence of injury, as dete rmined in a sunset review. In the United States'
view, Argentina's attempt to distinguish the rationale for cumulation in original investigations from its
use in sunset reviews is unavailing because Argentin a's distinction is based on "hypothetical facts
[that] are inapposite to this case".155
104. With respect to the existence of conditions pl aced on an investigating authority's resort to
cumulation, the United States claims that Article 3.3 is plainly limited to original investigations, and
that the Anti-Dumping Agreement provides no cross-reference that would render Article 3.3
applicable in sunset reviews. The United States fi nds significant this lack of cross-reference between
the prerequisites in Article 3.3 and the obligati on in Article 11.3 to conduct a sunset review,
particularly in the light of the relevance attached by the Appellate Body to the technique of cross-
referencing in US – Carbon Steel . Finally, the United States argu es that the "negligibility standard"

153Ibid., para. 163.
154Ibid., para. 165.
155Ibid., para. 168.

of Article 5.8, incorporated by reference as one of the prerequisites contained in Article 3.3, would be
"unworkable" in sunset reviews because such thresholds are premised on existing imports, whereas
sunset reviews are of a "predictive nature" and address likely imports.156 According to the United
States, the inapplicability of this prerequisite to s unset reviews further confirms that Article 3.3 and
the conditions contained therein are limited to original investigations.
105. Therefore, the United States requests the Appella te Body to uphold the Panel's finding that
cumulation is not prohibited in sunset reviews a nd that the prerequisites to cumulation set out in
Article 3.3 of the Anti-Dumping Agreement do not apply in the context of sunset reviews.
3. The Panel's Interpretation of the Term "Likely"
106. The United States requests the Appellate Body to uphold the Panel's findings concerning the
Panel's interpretation of the "likely" standard in Article 11.3 of the Anti-Dumping Agreement.
107. The United States argues that the fact that th e Panel did not discuss synonyms for "likely"
does not constitute a legal error. In the United States' view, Argentina seeks to exaggerate the
relevance of the Appellate Body's findings in US – Corrosion-Resistant Steel Sunset Review in order
to claim that the Panel failed to apply the correct standard. The United States underscores that there is
no evidence that the Panel did not interpret "likely" as "probable" in the sense that the Appellate Body
used that term in US – Corrosion-Resistant Steel Sunset Review.
108. The United States adds that the Panel's deci sion to focus on whether the USITC's sunset
determination actually met the "likely" standard was well founded. The United States emphasizes that
the only way to determine whether the USITC's sunset determination was consistent with the "likely"
standard of Article 11.3 was to examine what the USITC actually did.
109. The United States submits that it was not a lega l error for the Panel to discount Argentina's
arguments regarding past USITC statements in other fora as to the meaning of "likely". First, the
United States contends that the Panel's dismissal of these statements is the result of the Panel's
weighing of the evidence. According to the United States, Argentina should have based this claim on
appeal on Article 11 of the DSU; as Argentina failed to do so, its claim should be rejected. Secondly,
the United States argues that, as a substantive matter, Argentina's claim is without merit. According
to the United States, the past USITC statements to which Argentina refers were based on the
understanding of some USITC Commissioners that th e term "probable" connoted a very high degree
of certainty. The United States adds that the courts in the United States ev entually clarified that
"probable" was synonymous with the statutory term " likely", and that the views of the majority of the

USITC Commissioners as to the standard applicable in sunset reviews were consistent with the
standard articulated by the United States courts.
4. Consistency of the USITC's Determination with the Standard of "Likelihood"
in Article 11.3 of the Anti-Dumping Agreement
110. The United States submits that the Panel correctly found the USITC's determinations with
respect to cumulation, volumes, price effects, and im pact of subject imports, to be consistent with
Article 11.3 of the Anti-Dumping Agreement.
111. For the United States, the "likely" standard of Article 11.3 applies to the overall assessment of
future injury by the authorities, based on their consideration of the record as a whole. Article 11.3
does not require each item of information considered by the USITC to satisfy individually the "likely"
standard of Article 11.3. The United States subm its that the Panel properly evaluated whether the
USITC's findings were based on an objective examin ation of the record and that, by doing so, the
Panel addressed Argentina's argument that the USIT C applied the wrong standard. According to the
United States, "whether Argentina calls it 'eva luating whether the [US]ITC applied the wrong
standard' or whether the Panel calls it 'assessing th e basis of the evidence,' it amounts to the same
thing, and the question is ultimately whether the [US]ITC's establishment and assessment of the facts
supported its finding." 157 The United States maintains that the Panel examined that issue and
correctly concluded that the USITC's establishm ent and assessment of the facts did support its
conclusion that injury was likely to continue or recu r. The United States adds that in the light of the
Panel's approach, Argentina's clai m amounts to a request to re-weigh the evidence befo re the Panel,
which is beyond the scope of appellate review under Article 17.6 of the DSU.
(a) Likely Volume of Dumped Imports
112. The United States submits that, in any event, the Panel did not err in concluding that the
USITC's findings on volume were based on a proper establishment of the facts and an objective
evaluation of those facts. The United States reject s Argentina's argument that the Panel erred because
it allegedly applied a standard less than "likely" in evaluating the evidence. For the United States, the
Panel did not act in a manner inconsistent with the "likely" standard of Article 11.3 when it
recognized that, as a factual matter, shifting production was physically possible and that producers
would have every reason to do so if the orders were revoked as a matter of pure business logic. The
United States adds that, overall, the evidence strongly supports the USITC's finding that imports of
OCTG were likely to increase in volume if the anti-dumping orders were revoked.

(b) Likely Price Effects of Dumped Imports
113. As regards the USITC's findings on price, the United States submits that the Panel correctly
found that the USITC's establishment and evaluation of the facts was proper. The United States
underscores that the Panel discussed at length the rele vance of the price comparisons that formed the
basis for the underselling findings and that it c oncluded that they were adequate under the
circumstances, in the light of the diminished impor ts into the market after imposition of the order.
The United States also points out that the Panel re jected Argentina's argument that the USITC's
consideration of price as an important factor in purchasing decisions was flawed. According to the
United States, the USITC's findings on likely price e ffects were correct; Argentina's approach to
them is flawed because Argentina focuses on a few isolated factors, and simply asserts that the
USITC's findings are WTO-inconsistent. The United States explains that the USITC made an
objective examination of the evidence on the record as it "relied on a number of factors in reaching
its likely price effects finding, including: the likel y significant volume of imports; the high level of
substitutability between the subject imports and the domestic like product; the volatile nature of U.S.
demand; and underselling by the subject imports in the period examined in the sunset review."
 158
(c) Likely Impact of Dumped Imports on the United States Industry
114. With respect to the Panel's findings on the USITC's determination of the likely adverse impact
of dumped imports on the domestic industry, the Un ited States maintains that the Panel took the
evidence of the current state of the industry into account, as did the USITC, but found that it was not
dispositive of the likely outcome if the order we re revoked. According to the United States,
Argentina's claim is not a claim of legal error by the Panel, but rather, it relates to the weighing of
evidence. Moreover, Argentina's view that an order must be terminated if the industry has
experienced improvement during the life of the orde r cannot be reconciled with the plain text of
Article 11.3 and the concept underpin ning sunset reviews, because it is expected that the condition of
the domestic industry will improve under the discipline of the order. In the view of the United States,
Article 11.3 anticipates that a domestic industry might not be injured at the time the sunset review is
initiated.
(d) Cumulative Assessment of Dumped Imports
115. With respect to the USITC's decision to make a cumulative assessment of the imports, the
United States argues that "[e]ven if, as Argentin a claims, the Panel failed to discuss the factual
underpinnings of the [US]ITC's cumulation dete rmination, the DSU does not provide for the

Appellate Body to make factual findings that the Panel failed to make."
 159 Furthermore, the United
States submits that Argentina has distorted the ev idence and the record. In particular, the United
States points out that, as regards the issue of the likely simultaneous presence of imports from each
of the subject countries, Argentina omitted any reference to footnote 82 of the USITC Report. 160
According to the United States, this footnote was critical as it explained that the imports from each of
the subject countries were simultaneously present in the United States market since 1996.
116. The United States therefore requests the Appellate Body to uphold the Panel's finding that the
USITC's likelihood-of-injury determination—in partic ular, its analysis of cumulation, volume, price
effects, and impact of dumped imports—is not inconsistent with Article 11.3 of the Anti-Dumping
Agreement.
5. The Timeframe in a Likelihood-of-Injury Determination

117. According to the United States, the Panel co rrectly found that the "reasonably foreseeable
time" standard of the United States statute is not inconsistent with Article 11.3 of the Anti-Dumping
Agreement. The United States submits that Article 11.3 does not mention the timeframe on which the
investigating authorities should base their sunset review determination, nor does Article 11.3 require
them to specify the timeframe on which their likelih ood determinations are based. The United States
adds that the words "to lead to" in Artic le 11.3 affirmatively indicate that the Anti-Dumping
Agreement contemplates the passage of some period of time between the revocation of the order and
the continuation or recurrence of injury. For the United States, Article 11.3 contemplates that an
order will have been in place for at least five years, and that the consequences of revocation of that
order may not be immediate.
118. The United States also contends that "Argentina a ttempts to inject the 'imminent' and 'special
care' terms from Articles 3.7 and 3.8 into an Article 11.3 sunset review."
 161 The United States
submits that the Panel correctly found that no substantive requirements of Article 3 apply to
Article 11.3 sunset reviews. The United States further submits that the Panel's rejection of
Argentina's claim is based upon a correct textual an alysis of Articles 3.7, 3.8, and 11.3 of the Anti-
Dumping Agreement , and that the determinations set out in Articles 3.7 and 11.3 are substantively
different from one another.

159United States' appellee's submission, para. 180. (footnote omitted)
160See supra, footnote 10.

119. In the United States' view, Argentina's challenge to the United States statute is largely based
on conjecture by Argentina as to how the USITC might apply the statute. The United States adds that,
at most, Argentina may have shown that the statute gives the USITC discretion to produce a
determination that might create a question of WTO-consistency. For the United States, even if that
were so, Argentina has not shown that the statute " mandates"
162 the USITC to look beyond a future
period of time such that this would be inconsistent with Article 11.3.
120. The United States views as flawed Argentina's contention that the time period on which the
investigating authority must focus its likely analysis is as of the time of the expiry of the dumping
order. According to the United States, Arge ntina's position would render meaningless the " would be
likely to lead to "
 163 language of Article 11.3, because the inv estigating authority would be left with
only one option: determining how the lifting of the order will affect the industry at the moment the
order is lifted. The United States underscores th at Article 11.3 does not state that investigating
authorities must determine whether injury would continue or recur upon expiry of the duty.
According to the United States, Article 11.1 and the last sentence of Article 11.3 do not support
Argentina's position because these provisions address the timing of removal of the duty in the event of
a negative determination, not the length of the time period between potential revocation and the
consequences of such revocation for the domestic industry.
121. The United States rejects Argentina's argument that the USITC acted in a manner inconsistent
with Article 11.3 because it did not explicitly state what the outer limits of the "reasonably
foreseeable time" were for the purpose of the unde rlying sunset review on OCTG from Argentina.
For the United States, there is nothing in the Anti-Dumping Agreement requiring the investigating
authority to specify the temporal context of its likelihood-of-injury determination.
122. The United States therefore requests the Appella te Body to uphold the Panel's finding that
Sections 752(a)(1) and 752(a)(5) of the Tariff Ac t of 1930, as well as their application in the
underlying sunset review, are not inconsistent with Article 11.3 of the Anti-Dumping Agreement.
6. Conditional Appeals
(a) Challenge to the USDOC "Practice"
123. The United States submits that the Appellate B ody should decline the conditional appeal of
Argentina on the claim that the USDOC "practice" is inconsistent, as such, with Article 11.3 of the

162United States' appellee's submission, para. 138. (original emphasis)
163Ibid., para. 140 (quoting Anti-Dumping Agreement , Article 11.3). (emphasis added by the United
States)

Anti-Dumping Agreement for three reasons. First, the United States argues that Argentina's claim
was not within the terms of reference of this dis pute. Secondly, the United States points out that the
Panel made no findings regarding whether a "pr actice" is a measure subject to WTO dispute
settlement. According to the United States, the Appe llate Body would have to complete the analysis
in this respect. The United Stat es submits that the Appellate Body could not do so given the lack of
factual findings by the Panel. Thirdly, the United States maintains that the USDOC "practice", in the
form of agency precedents, is not a measure subject to WTO dispute settlement. In this respect, the
United States underlines that it disputes the probativ e value and the relevance of the statistics
provided in Exhibits ARG-63 and ARG-64. Accord ing to the United States, these exhibits do not
demonstrate that the USDOC failed to take addi tional factors into account, nor do they support
Argentina's argument that the USDOC "practice" no t to consider additional factors exists and is
WTO-inconsistent.
(b) Challenge under Article X:3(a) of the GATT 1994
124. The United States submits that the Appellate B ody also should decline the conditional appeal
of Argentina on the claim that the USDOC acted in a manner inconsistent with Article X:3(a) of the
GATT 1994 for three reasons. First, the United States argues that the claim is not within the terms of
reference of this dispute. Secondly, the United Stat es points out that Argentina never specified in the
panel request or before the Panel which laws, regulations, decision, and rulings were administered in a
manner inconsistent with Article X:3(a). Accordi ng to the United States, Argentina, by referring
vaguely in its other appellant's submission to all of the measures mentioned in its panel request, seeks
to expand, at the appellate stage, the measure alleged to be inconsistent with Article X:3(a). Thirdly,
the United States submits that Argentina's claim does not establish a violation of Article X:3(a). For
the United States, if the only measure subject to Argentina's claim under Article X:3(a) is the
USDOC's sunset determination underlying this dispute, that claim must fail, because Article X:3(a)
pertains to the administration of the laws and Ar gentina has offered no evidence that this specific
determination has had a "significant impact"
 164 on the United States' administration of its sunset
review laws. The United States adds that Argentina' s claim under Article X:3(a) must also fail, even
if it includes other measures, because Argentina has not attempted to provide evidence that any of the
affirmative sunset review determ inations, with the exception of the current one, were erroneous or
reflected bias or lack of reasonableness.

164United States' appellee's submission, para. 197 (quoting Panel Report, US – Corrosion-Resistant
Steel Sunset Review, para. 7.307).

E. Arguments of the Third Participants
1. European Communities
125. The European Communities agrees with the Panel's conclusions regarding the WTO-
consistency of the waiver provisions and of the SPB and therefore contests the United States' appeal
as to these issues. The European Communities also supports the Panel's conclusion that cumulation is
permitted in the context of sunset reviews. In the European Communities' view, however, the Panel
erred in its interpretation of the terms "likely" an d "injury" as found in Artic le 11.3 and, accordingly,
the Appellate Body should grant Argentina's requ est in its cross-appeal to reverse the Panel's
interpretation of these terms.
126. The European Communities disagrees with the United States' challenge to the Panel's findings
with respect to the waiver provisions. Relying on the fact that the waiver provisions, as a matter of
United States law, mandate a company-specific a ffirmative likelihood determination, the European
Communities claims that, in a situation where ther e is only one exporter in a country subject to a
dumping order, the waiver provisions "require[] " the USDOC to make an affirmative likelihood
determination with respect to that c ountry, that is, on an order-wide basis. 165 The European
Communities argues that, contrary to the understandi ng of the United States, the Panel found that,
in the situation of a sole exporter, th e company-specific determination is " likely to be conclusive " of
the order-wide determination, not that the company-specific determination is conclusive .166 T h e
European Communities submits that this Panel finding is a finding of fact and that the United States
failed to rebut the evidence underlying this finding. In the European Communities' view, the United
States' "bare assertion before the Panel … carries no evidential weight". 167
127. In addition, the European Communities contends that the United States incorrectly reads the
Panel's findings to mean that company-specific determinations are determinative of order-wide
determinations, whereas the Panel in fact found merely that the USDOC "consider[s]" country-
specific determinations when arriving at an order-wide determination. 168 The European Communities
again claims that the United Stat es failed to adduce ev idence to rebut the evidence supporting this
factual finding of the Panel.

165European Communities' third participant's submission, para. 23.
166Ibid., para. 27 (quoting Panel Report, para. 7.102). (emphasis added by the European Communities)
167Ibid., para. 29.

128. The European Communities agrees with the United States that the Panel erred in assessing the
WTO-consistency of the company-specific determinations made pursuan t to the waiver provisions.
The European Communities asserts that Article 11.3 does not require an investigating authority to
make a company-specific likelihood determinati on. Therefore, according to the European
Communities, the Panel "beg[ged] the question"
169 when it examined whether the USDOC'S
company-specific determinations satisfy the obligat ions of Article 11.3. The European Communities
argues that this erroneous approach led the Panel to conclude that company-specific determinations
are "improperly established" 170 by virtue of the waiver provisions. The European Communities
therefore requests that this finding of the Panel be modified by the Appellate Body.
129. In the European Communities' view, however, th e Panel's legal error in evaluating the WTO-
consistency of company-specific determinations does not undermine the Panel's conclusion that the
waiver provisions are inconsistent, as such, with Article 11.3. The European Communities contends
that two elements of the Panel's reasoning remain va lid despite the aforementioned analytical error:
(1) the "lack of a determination" 171 at the company-specific stage of the sunset review; and (2) the
fact that, at least in the situation where there is only one exporter from a given country, the results of
the USDOC's analysis at th e company-specific stage are "likely to be conclusive" 172 with respect to
the order-wide stage, "with the result that there will also be no determination in the second stage". 173
As a result, the European Comm unities claims, the order-wide de termination cannot satisfy the
requirements of Article 11.3.
130. The European Communities also contests the Unite d States' appeal of th e Panel's conclusion
that the deemed waiver provision is inconsistent, as such, with Articles 6.1 and 6.2. With respect to
Article 6.1, the European Communities claims that it is insufficient for an investigating authority to
provide an opportunity to present evidence; rather, Article 6.1 requires that "ample" opportunity be
provided, which the European Communities understands to be an opportunity "more tha[n] sufficient,
abundant, large in size, extent or amount". 174 The European Communities emphasizes that the
obligation under Article 6.2 to provide interested parties " full opportunity for the defence of their
interests" applies "throughout the anti-dumping investigation".175 In the light of this understanding of

169European Communities' third participant's submission, para. 35.
170Ibid. (quoting Panel Report, para. 7.101).
171Ibid., para. 36.
172Ibid. (citing Panel Report, para. 7.102).
173Ibid., para. 36.
174Ibid., para. 60 (quoting Collins Dictionary of the English Language, G.A. Wilkes (ed.) (Wm. Collins
Publishing, 1979), p. 48).
175Ibid., para. 61 (quoting Anti-Dumping Agreement , Article 6.2). (emphasis added by the European
Communities)

the obligations in Articles 6.1 and 6.2, the Eur opean Communities sees "no reason for the Appellate
Body to disturb the Panel's conclusion[s]".176
131. The European Communities challenges the United St ates' appeal of the Panel's findings that
the SPB is a "measure" and that it is inconsiste nt with Article 11.3. The European Communities
claims that whether a provision placed before a panel constitutes a "measure" is a "legal
characterization".177 In the European Communities' view, the Panel did not assume the SPB to be a
measure, but instead, relied on and incorporated the reasoning of the Appellate Body in US –
Corrosion-Resistant Steel Sunset Review . The Appellate Body's attempts to complete the analysis
with respect to the WTO-consistency of the SPB, according to the European Communities, could only
have been undertaken after the Appella te Body had concluded that the SPB is a measure.
Furthermore, the European Communities argues that where a municipal provision requires WTO-
inconsistent action, the discretion of the inv estigating authority not to use the provision is
"irrelevant".178 According to the European Communities, whatever may be the more difficult
circumstances of other cases, "[t]his [case] is an uncontroversial, 'black and white', almost
mathematical example."179
132. The European Communities also addresses certain as pects of Argentina's cross-appeal. With
respect to Argentina's claims relating to the term "l ikely" as it is used in Article 11.3, the European
Communities submits that the definition of the term " likely" was relevant to the Panel's analysis and
that the Panel erred in failing to state its understanding of the te rm it was applying when evaluating
Argentina's claim. The proper meaning of "likel y" in this regard, according to the European
Communities, is "probable" and not "possible or plausible". 180 The European Communities argues
that the Panel further erred in failing to distinguish between the claim that th e investigating authority
applied the wrong standard and the "qualitatively di fferent" claim that the investigating authority
erred in determining that the standard had been met. 181 Finally, the European Communities claims
that the Panel erroneously failed to consider as re levant evidence the statements made by the USITC
in other fora about how it interpreted the standard in the particular sunset review at issue. Given these
errors of the Panel, in the European Communitie s' view, the Appellate Body should "modif[y]" the

176European Communities' third participant's submission, para. 60.
177Ibid., para. 63.
178Ibid., para. 69.
179Ibid.
180Ibid., para. 73.
181Ibid., para. 74.

Panel's findings accordingly and "complete the anal ysis" by evaluating whether the USITC applied
the wrong legal standard when conducting its likelihood-of-injury determination.
182
133. As to the term "injury" used in Article 11.3, the European Communities agrees with
Argentina's arguments in support of the view that the provisions of Article 3 set forth part of the
Agreement-wide definition of "injury". The Europ ean Communities contends that a determination of
"past" injury "almost inevitabl[y] ... forms the foundation" for a likelihood-of-injury determination.
183
According to the European Communities, although a likelihood-of-injury determination is based on
different facts and evidence from an injury determin ation in original investigations, this difference
does not alter the applicability of the definition of "injury" throughout the Anti-Dumping Agreement.
Therefore, the European Communities argues, the volume, price, and impact analyses set out in
Article 3 should be adapted to apply to the different facts relevant in a likelihood-of injury review.
134. As to cumulation, the European Communities contends that the Anti-Dumping Agreement
embodies no requirement for investigating authorities to examine the likelihood of continuation or
recurrence of injury resulting from dumped imports of a particular exporting country. Thus, the
European Communities agrees with the United States that, contrary to Argentina's appeal, the Panel
correctly determined cumulation to be permitted in the context of sunset reviews.
2. Japan

135. Japan supports the Panel's conclusions that th e waiver provisions and Section II.A.3 of the
SPB are inconsistent, as such, with the United States' obligations under the Anti-Dumping Agreement.
Japan claims that the Panel erred, however, in c oncluding that Article 3 does not apply to likelihood-
of-injury determinations under Artic le 11.3. As a result, Japan s upports Argentina's request for the
Appellate Body to reverse the Panel's finding on this issue.
136. Japan submits that the Appellate Body, in US – Corrosion-Resistant Steel Sunset Review ,
concluded that the SPB is a measure before continui ng to evaluate the WTO-consistency of the SPB.
In Japan's view, the Panel, in this case, examined the text of the SPB, and the application of the SPB
by the USDOC, to substantiate its view that the SPB is a measure subject to WTO dispute settlement.
Japan argues that the Panel properly concluded th at the practice of the USDOC reveals that the
USDOC treats the three scenarios in Section II.A.3 as determinative. In support of this view, Japan
relies on the fact that the USDOC arrived at an affirmative likelihood determination whenever the
facts of a particular case fell under one of the thr ee scenarios. Japan submits that the "mechanistic

182European Communities' third participant's submission, para. 76.

application" of the SPB, demonstrated by the eviden ce submitted by Argentina, is inconsistent with
Article 11.3 because it does not permit the USDOC to c onsider the particular facts of individual cases
and cannot constitute, as such, a "rigorous examination".184
137. Japan also agrees with the Panel's findings c oncerning the inconsistency of the affirmative
and deemed waiver provisions with Articles 6.1, 6.2, and 11.3 of the Anti-Dumping Agreement. First,
Japan submits that both waiver provisions mandate an affirmative likeli hood determination without
reviewing any positive evidence. Japan considers "irrelevant" 185 the United States' claim that order-
wide determinations are "made independently of" 186 company-specific determinations because, in
Japan's view, the waiver provisions preclude the USDOC from taking into account positive evidence
as to either determination, inconsistent with the requir ements of Article 11.3. Second, Japan argues
that, because respondents that file an incomplete submission in response to a notice of initiation are
precluded from presenting further evidence or participating in a hearing, the deemed waiver provision
is inconsistent with Articles 6.1, 6.2, and 11.3.
138. Finally, Japan requests the Appellate Body to reverse the Panel's finding that Article 3 does
not normally apply to sunset reviews. Japan agrees with Argentina that the rationale of US –
Corrosion-Resistant Steel Sunset Review supports the applicability of Article 3 to sunset reviews
under Article 11.3. According to Japan, footnote 9 of the Anti-Dumping Agreement provides that,
throughout the Anti-Dumping Agreement , the provisions of Article 3 define the term "injury" and
that, accordingly, an investigating authority examining the likelihood of continuation or recurrence of
"injury" under Article 11.3 must conduct its examinat ion in accordance with Article 3. Japan further
submits that the reference in Article 11.3 to "continuation or recurrence" of injury requires an analysis
of both the present state of the domestic industry as well as its future state. Japan argues that the
term "continuation" requires, in order for injury to continue, a finding that the domestic industry is
currently injured, and that the term "recurrence" requires, in order for injury to recur, a finding that the
domestic industry is not currently injured. The an alyses set out in Article 3, in Japan's view, are
therefore required in likelihood-of-injury determinations.
3. Korea
139. Korea requests the Appellate Body to uphold the Panel's findings that Section 751(c)(4)(B) of
the Tariff Act of 1930 and Section 351.281(d)(2)(iii) of the USDOC Regulations are inconsistent, as

184Japan's third participant's submission, para. 15 (quoting Appellate Body Report, US – Corrosion-
185Ibid., para. 22.
186Ibid. (quoting United States' appellant's submission, para. 48).

such, with Article 11.3 of the Anti-Dumping Agreement. Korea argues that, by virtue of the waiver
provisions, the USDOC conducts its likelihood determination on a company-specific basis for those
respondents that waive their right to participate in the sunset review. As such, in Korea's view, the
relevant question is whether the company-specific determination made by th e USDOC is consistent
with Article 11.3. Korea agrees with the Panel that a company-specific determination resulting from
the waiver provisions cannot satisfy the requirement of Article 11.3 because it is not "supported by
reasoned and adequate conclusions based on the facts".
187 Furthermore, Korea submits that because
the USDOC's likelihood determination is not made purely on an order-wide basis but, "at least in
part" 188, on a company-specific basis, and the latter is not WTO-consistent, the entire USDOC
likelihood determination is "contaminated".189
140. Korea also requests the Appellate Body to reve rse the Panel's finding that the USITC applied
the "likely" standard as required under Article 11.3 of the Anti-Dumping Agreement. Korea argues
that the fact that the USITC nominally applied the "likely" standard, as stated in its determination,
does not mean that the agency in fact did appl y the correct standard when conducting its likelihood-
of-injury determination. Indeed, Korea submits, in the light of the USITC's admissions in other fora
that it did not apply the "likely" standard to mean "probable", the Panel should have been aware that
the USITC did not apply the standard required by Article 11.3. Korea claims that the Panel
misunderstood Argentina to be claiming that the USITC erred in determining that the "likely"
standard was met under the facts of this case and, as a result, considered the USITC's admissions as
"not relevant".
190 In Korea's view, the failure of the Panel to recognize the significant relevance of
these admissions and to find accordingly that the US ITC did not apply the pr oper standard in the
underlying sunset review constituted an error that should be reversed by the Appellate Body.
141. Korea claims that the Appellate Body should re verse the Panel's finding that the "reasonably
foreseeable time" in which the likeli hood of injury should be considered to continue or recur, set out
in Sections 752(a)(1) and 752(a)(5) of the Tariff Act of 1930, is not inconsiste nt with Article 11.3 of
the Anti-Dumping Agreement. Korea submits that, by virtue of footnote 9, the provisions of Article 3
apply mutatis mutandis to Article 11. In particular, Korea argues, as a result of the reference in
footnote 9 to "threat of material injury", the Panel should have interpreted Article 11.3 "in conjunction
with"191 Article 3.7. Furthermore, Korea contends that the requirement in Article 3.7 for injury to be

188Ibid., para. 14.
189Ibid., para. 15.
191Ibid., para. 29.

"clearly foreseen and imminent" sets a "higher threshold" 192 than the "reasonably foreseeable time"
standard provided for in United States law, whic h grants unduly broad discretion to the USITC.
Korea also proposes a "more objective" 193 time period by which an investigating authority should
consider the continuation or recurrence of injury , namely, the "near future" standard provided in
footnote 10 of the Anti-Dumping Agreement.194
142. Finally, Korea requests the Appellate Body to find that the Panel erred in finding that
cumulation is permitted in sunset reviews. Agreeing with Argentina in this regard, Korea refers to the
fact that Article 11.3 uses the word "duty" and not "duties" as reflecting the intent of the treaty
drafters that sunset reviews are to be conducted w ith respect to each particular order, or source of
imports. In the light of this specific language in Article 11.3, Korea argues, the Panel erred in
considering that the existence of a provision pe rmitting cumulation under certain conditions during an
original investigation, reveals no intention to prohib it or limit the use of cumulation in other contexts,
including sunset reviews.
4. Mexico
143. Mexico supports Argentina's request for the Appellate Body to uphold the Panel's findings
with respect to Article 6.2 of the DSU and to th e WTO-consistency of the waiver provisions and the
SPB. Mexico also agrees with Argentina's request for the Appellate Body to reverse the Panel's
findings with respect to Argentina's injury-related "as such" and "as applied" claims.
144. With respect to the waiver provisions, Mexico agrees with the Panel's findings and with
Argentina's arguments in support thereof. As to the SPB, Mexico submits that the Panel properly
found that the SPB is a measure subject to challe nge in WTO dispute settlement and that the SPB is
inconsistent, as such, with Article 11.3. Mexico ar gues that, contrary to the United States' assertions,
the Panel did not rely solely on the finding of the Appellate Body in US – Corrosion-Resistant Steel
Sunset Review in order to conclude that the SPB is a "measure". Instead, acco rding to Mexico, the
Panel based its conclusion on an evaluation of each of the United States' arguments, in addition to the
text of the SPB. Mexico also contests the United States' reading of the Appellate Body's decision in
that dispute because, in that decision, the Appellate Body would not have attempted to complete the
analysis with respect to the WTO-consistency of the SPB had it not already determined that the SPB
was a "measure" that could be challenged in the WTO.

192Korea's third participant's submission, para. 30.
193Ibid., para. 31.
194Ibid.

145. Mexico agrees with the Panel's finding that S ection II.A.3 of the SPB is perceived by the
USDOC to be conclusive or determinative. In Mexico's view, the United States failed to submit any
evidence that contradicts the mean ing ascribed to the SPB by the Panel on the basis of the Panel's
analysis of the text and "consistent application" of the SPB. Mexico additionally submits that the
"cause and effect" relationship between the SPB and the USDOC's sunset review determinations is
clear from a "plain reading" of those determinati ons, in which the USDOC "systematically" refers to
the SPB to justify its conclusions of likelihood.
195
146. Mexico requests the Appellate Body to reject the United States' claims under Article 6.2 of
the DSU. Mexico argues, first, that the United States' challenge to Argentina's "as such" claims
relating to the "irrefutable presumption" is based on a "misread[ing]" 196 of the panel request. In
Mexico's view, Section A.4 of the panel request cannot be read to contain only an "as applied"
challenge to the USDOC's likelihood-of-dumping determination because the "as applied" claim
"would be meaningless"197 without the challenges to the laws on which the determination was based.
In addition, Mexico claims that the reference to "U S law" in Section A.4 of the panel request does not
leave open the question as to the specific source of the "irrefutable presumption" because the last
sentence of Section A.4 "clearly and expressly" 198 refers to the SPB.
147. With respect to Section B.3 of the panel request , Mexico claims that nothing in Article 6.2 of
the DSU precludes a complainant from citing a whole treaty article as the basis for a claim if that
party believes that the respondent Member has acted inconsistently with the multiple provisions of
that Article. Finally, Mexico points out that th e United States has failed to demonstrate prejudice
resulting from the alleged lack of clarity in Argen tina's panel request. As such, according to Mexico,
the Panel correctly dismissed the United States' objections raised under Article 6.2 of the DSU.
148. Mexico disagrees with several of the Panel's conclusions relating to the likelihood-of-injury
analysis performed by the USITC, in general, as we ll as in this particular case. Mexico submits that
the Panel should have taken into account the US ITC's admissions, made in the course of a NAFTA
proceeding, that the agency had not interpreted "likely" to mean "probable" when conducting the
underlying likelihood-of-injury determination on OCTG from various sources. Mexico contends that,
because these admissions relate to the same determin ation challenged in this dispute, the Panel erred
in concluding the admissi ons were "not relevant" 199 to the evaluation of the issue before it. Mexico

195Mexico's third participant's submission, para. 40.
196Ibid., para. 48.
197Ibid., para. 45.
198Ibid., para. 46.

additionally argues that the USITC did not apply th e "likely" standard correctly in the underlying
sunset review determination when analyzing likel y volume, price effects, and impact of dumped
imports, and that the USITC's conclusions as to these analyses were not supported by positive
evidence and a sufficient factual basis.
149. Mexico also claims that the Panel erred in assessing the relationship between Articles 3
and 11.3 of the Anti-Dumping Agreement . Mexico alleges that the Panel failed to consider, in the
light of the Agreement-wide definition of "injury" set out in footnote 9 and Article 3, whether the
term "injury" in Article 11.3 imposes more particular obligations on investigating authorities. Mexico
also claims that the Panel's re asoning contains "contradictions". 200 Mexico bases this claim on the
Panel's statements that: (1) Article 3 does not appl y "normally" to sunset reviews; (2) the provisions
of paragraphs of Article 3 "do not necessarily apply" in sunset reviews; and (3) Article 3 applies only
in the context of a determination of present injury and not in likelihood-of-injury determinations.
150. According to Mexico, the Panel also erred in fi nding that the temporal focus of the USITC's
underlying likelihood-of-injury determination and th e temporal standard mandated by United States
statutes are not inconsistent with Article 11.3. Me xico also finds erroneous the Panel's finding that,
under Article 11.3, investigating authorities are permitte d to engage in a cumulative analysis and that
the Anti-Dumping Agreement prescribes no prerequisites for such an analysis.
151. Finally, Mexico asks the Appellate Body to agr ee to Argentina's request to "suggest" that the
United States terminate the anti-dumping measures on OCTG. 201 Mexico alleges that, because of the
"exacting nature"202 of the Article 11.3 obligations fo und by the Appellate Body in US – Corrosion-
Resistant Steel Sunset Review and US – Carbon Steel , "to permit a Member to 'cure' a violation of
Article 11.3 would conflict directly with [that provision's] intent".203
III. Issues Raised in this Appeal
152. The following issues are raised in this appeal:
(a) whether the Panel erred in finding that Argentina's panel request satisfied the
requirements of Article 6.2 of the DSU, in identifying claims that Sections 751(c) and
752(c) of the Tariff Act of 1930, the SAA, and the SPB are inconsistent, as such, with

200Mexico's third participant's submission, para. 64.
201Ibid., para. 70.
202Ibid. (Mexico's emphasis omitted)
203Ibid., para. 71.

Article 11.3 of the Anti-Dumping Agreement , and, therefore, that such claims fell
within the Panel's terms of reference;
(b) as regards the SPB:
(i) whether the Panel erred in finding that the SPB is a "measure" subject to
WTO dispute settlement; and
(ii) whether the Panel erred in finding that Section II.A.3 of the SPB is
inconsistent, as such, with Article 11.3 of the Anti-Dumping Agreement;
(c) as regards the waiver provisions of United States laws and regulations:
(i) whether the Panel erred in finding that Section 751(c)(4)(B) of the Tariff Act
of 1930 and Section 351.218(d)(2)(iii ) of the USDOC Regulations are
inconsistent, as such, with Article 11.3 of the Anti-Dumping Agreement;
(ii) whether the Panel erred in finding th at Section 351.218(d)(2)(iii) of the
USDOC Regulations is inconsistent, as such, with Articles 6.1 and 6.2 of
the Anti-Dumping Agreement; and
(iii) whether the Panel failed to satisfy its obligation under Article 11 of the DSU
to "make an objective assessment of the matter before it, including an
objective assessment of the facts of the case";
(d) whether the Panel erred in its interpretation of the term "injury" in Article 11.3 of
the Anti-Dumping Agreement , with respect to the factors to be considered by an
investigating authority in its likelihood-of-injury determination;
(e) as regards cumulation of the effects of dumped imports:
(i) whether the Panel erred in finding that Article 11.3 of the Anti-Dumping
Agreement does not preclude investigating authorities from cumulating the
effects of likely dumped imports in the course of their likelihood-of-injury
determinations; and
(ii) whether the Panel erred by finding that the conditions of Article 3.3 of the
 Anti-Dumping Agreement do not apply in the context of sunset reviews;

(f) whether the Panel erred in its interpretation of the term "likely" in Article 11.3 of the
Anti-Dumping Agreement, in the course of its analysis of the USITC's likelihood-of-
injury determination;
(g) whether the Panel erred in finding that the conclusions of the USITC with respect to
cumulation, likely volume, likely price effects, and likely impact of dumped imports,
did not render the likelihood-of-injury determ ination inconsistent with Article 11.3 of
the Anti-Dumping Agreement; and
(h) as regards the timeframe used by the USITC in its likelihood-of-injury determination:
(i) whether the Panel erred in finding that the standard of continuation or
recurrence of injury "within a reasona bly foreseeable time", as provided in
Sections 752(a)(1) and 752(a)(5) of the Tariff Act of 1930, is not inconsistent
with Article 11.3 of the Anti-Dumping Agreement; and
(ii) whether the Panel erred in finding that th e application of that standard in the
USITC's likelihood-of-injury determin ation is not inconsistent with
Article 11.3 of the Anti-Dumping Agreement.
153. Argentina also conditionally appeals two issues on which the Panel found that it either did not
need to rule because it w as an "alternative" claim submitted by Ar gentina, or declined to rule for
reasons of judicial economy. Argentina requests us to address these issues if, based on the arguments
of the United States, we reverse any of the Panel's conclusions. The issues are:
(i) whether the "practice" of the USDOC relating to likelihood-of-dumping
determinations in sunset reviews is incons istent, as such, with Article 11.3 of the
Anti-Dumping Agreement; and
(ii) whether the USDOC, in its administrati on of United States anti-dumping laws,
regulations, decisions, and rulings relating to the conduct of sunset reviews, has acted
inconsistently with Article X:3(a) of the GATT 1994.
154. The United States also requests us to rule on the following issues under Article 6.2 of the
DSU, provided certain conditions are met:
(i) whether the Panel erred in finding that Argentina's panel request satisfied the
requirements of Article 6.2 of the DSU, in identifying claims that Sections 752(a)(1)
and 752(a)(5) of the Tariff Act of 1930 are inconsistent, as such, with Articles 3.7 and

3.8 of the Anti-Dumping Agreement, and, therefore, that such claims fell within the
Panel's terms of reference;
(ii) whether Argentina's panel request sufficien tly identified "the legal basis of the
complaint", as required by Article 6.2 of the DSU, with respect to Argentina's claim
that the "practice" of the USDOC relating to likelihood-of-dumping determinations in
sunset reviews is inconsistent, as such, with Article 11.3 of the Anti-Dumping
Agreement; and
(iii) whether Argentina's panel request sufficien tly identified "the legal basis of the
complaint", as required by Article 6.2 of the DSU, with respect to Argentina's claim
that the USDOC, in its administration of United States anti-dumping laws,
regulations, decisions, and rulings relating to the conduct of sunset reviews, has acted
inconsistently with Article X:3(a) of the GATT 1994.
IV. The Panel's Terms of Reference
155. We begin our analysis of the participants' cl aims in this dispute with the United States'
challenge to the Panel's findings re lating to its terms of reference. The United States requested the
Panel to make preliminary rulings dismissing several claims made by Argentina in its first and second
written submissions. The United States argued that th ese claims were not within the Panel's terms of
reference because Argentina's panel request failed to "provide a brief summary of the legal basis of
[these claims] sufficient to present the problem clearly", as required by Article 6.2 of the DSU.
156. The Panel denied the United States ' request for preliminary rulings.
204 The Panel found that
most of the claims contested by the United States were presented in a sufficiently clear manner in
Argentina's panel request.205 The Panel declined to rule on whether the remaining claims contested by
the United States were within its terms of refe rence because the Panel deemed such rulings
unnecessary in the light of the fact that it made no findings on the merits of those claims. 206 I n
particular, the Panel said that it did not need to address the merits of Argentina's "alternative" 207 claim
under Article X:3(a) of the GATT 1994.208 The Panel also exercised judicial economy with respect to

204Panel Report, paras. 7.40 and 7.70.
205Ibid., paras. 7.22, 7.27, 7.32, 7.39, 7.47, 7.60, and 7.66.
206Ibid., paras. 7.29, 7.34, 7.36, 7.44, 7.55, 7.63, and 7.69.
207Ibid., para. 7.169.
208In paragraph 7.169 of the Panel Report, the Pane l decided not to "address Argentina's alternative
claim under Article X:3(a) of the GATT 1994" because the Panel had found th at Section II.A.3 of the SPB is
inconsistent, as such, with Article 11.3 of the Anti-Dumping Agreement.

Argentina's challenge under Article 11.3 of the Anti-Dumping Agreement to the USDOC
"practice".209
157. On appeal, the United States argues, first, that the Panel erred in concluding that Argentina's
"as such" claims regarding what Argen tina termed the "irrefutable presumption" 210 were within the
Panel's terms of reference. In this regard, the United States specifically challenges the Panel's
findings that Argentina's claims against Sections 751(c) and 752(c) of the Tariff Act of 1930, the
SAA, and the SPB, as set out in Argentina's panel re quest, satisfy the requirements of Article 6.2 of
the DSU. In addition, should we decide to a ddress Argentina's claim under Article 11.3 of the
Anti-Dumping Agreement regarding the USDOC "practice", or Argentina's claim under Article X:3(a)
of the GATT 1994, the United States requests us to address its objection that these claims also are not
within the Panel's terms of reference. 211 Finally, should Argentina appeal the Panel's findings that
Sections 752(a)(1) and 752(a)(5) of the Tariff Act of 1930 are not inconsistent, as such or as applied,
with Articles 3.7 and 3.8 of the Anti-Dumping Agreement, the United States requests us to reverse the
Panel's finding that Section B.3 of Argentina's pa nel request clearly sets out a claim under these
provisions.212
158. We examine first the United States' challenge to Argentina's "as such" claims relating to the
alleged "irrefutable presumption". The Panel focused its analysis on Section A.4 of the panel request,
which reads:
The [USDOC's] Sunset Determinati on is inconsistent with Article
11.3 of the Anti-Dumping Agreement, and Article X:3(a) of the
GATT 1994 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 dumping. This unlawful presumption is evidenced by
the consistent practice of the [USDOC] in sunset reviews (which
practice is based on US law and the [USDOC's] Sunset Policy
Bulletin).
The Panel observed that Section A.4 "takes issue with US law's provisions relating to the likelihood of
continuation or recurrence of dumping".
213 The Panel also noted the explicit reference in Section A.4
to the SPB and to the USDOC "practice" in sunset reviews. The Panel concluded that Section A.4

209In paragraph 7.168 of the Panel Report, the Panel stat ed that it did not consider it "necessary to rule
on Argentina's claim" that the USDOC "practice" is inconsistent with Article 11.3 of the Anti-Dumping
Agreement because the Panel had found that Section II.A.3 of the SPB is inconsistent, as such, with Article 11.3.
210Argentina's panel request, Section A.4.
211United States' appellant's submission, footnote 104 to para. 100.
212Ibid., para. 101.
213Panel Report, para. 7.27.

informed the United States that Argentina would be making a claim that certain provisions of United
States law, relating to determinations on the likeli hood of continuation or recurrence of dumping, are
inconsistent, as such, with Article 11.3 of the Anti-Dumping Agreement because of an "irrefutable
presumption" contained in those provisions.
159. The United States contends that Argentina's claims relating to the alleged "irrefutable
presumption" are limited to a challenge to th e specific USDOC sunset review determination
underlying this dispute, and not to pr ovisions of United States law "as such".
214 Furthermore,
nowhere in the panel request does Argentina iden tify which legal measure or provision—United
States statute, the SAA, or the SPB—e mbodies this "irrefutable presumption". 215 To the extent that
Section A.4 of the panel request mentions United States law or the SPB, the United States argues, it
does so merely as evidence to support the "as applied" challenge to the USDOC's determination in
the underlying sunset review. 216 Argentina contends that "page four" 217 of the panel request serves to
clarify the claims set out in Sections A and B of th e panel request. For Argentina, when read in the
light of such clarification, Section A.4 sufficien tly identifies an "as such" challenge to certain
provisions of United States law that are identified more specifically on "page four". In the view of the
United States, "page four" of the panel request ca nnot sufficiently clarify Argentina's purported "as
such" claim because the discussion on "page four" is clearly indicated to be a supplement to the
previous claims, not a clarification thereof. 218 Therefore, the United States argues, it was not made
aware of the case it had to answer concerning Ar gentina's "as such" claims about the alleged
"irrefutable presumption".
160. A panel's terms of reference are governed by th e claims set out in the complaining party's
panel request.219 Article 6.2 of the DSU provides that a panel request:
... shall indicate whether consultations were held, identify the specific
measures at issue and provide a brief summary of the legal basis of
the complaint sufficient to present the problem clearly.
As the Appellate Body observed in US – Carbon Steel , under Article 6.2, a panel request must meet
"two distinct requirements, namely identification of the specific measures at issue , and the provision

214United States' appellant's submission, paras. 92 and 95.
215Ibid., para. 92.
216Ibid., para. 93.
217"Page four" is how the parties and the Panel referre d to the section of the panel request following
Section B.4, from the paragraph beginning "Argentina also considers ..." through the bullet point referring to
Article XVI:4 of the WTO Agreement. (See Panel Report, footnote 13 to heading VII.B.1.(a)).
219DSU, Article 7.1.

of a brief summary of the legal basis of the complaint (or the claims)".220 The United States claims
that Argentina's panel request "failed to provide a br ief summary of the legal basis of [the complaint]
sufficient to present the problem clearly".221
161. The Appellate Body has explained previously the due process objectives behind the
requirement for sufficient clarity in a panel request:
Article 6.2 of the DSU calls for sufficient clarity with respect to the
legal basis of the complaint, that is, with respect to the "claims" that
are being asserted by the complaining party . A defending party is
entitled to know what case it has to an swer, and what violations have
been alleged so that it can begin preparing its defence. Likewise,
those Members of the WTO who intend to participate as third
parties in panel proceedings must be informed of the legal basis of
the complaint. This requirement of due process is fundamental
to ensuring a fair and orderly conduct of dispute settlement
proceedings.
222 (emphasis added; footnotes omitted)
162. In Korea – Dairy , the Appellate Body explained the dis tinction between the "legal basis of
the complaint"—that is, the "claims" being asserted—and the arguments put forth by that party in
support of its claims:
By "claim" we mean a claim that the respondent party has violated,
or nullified or impaired the bene fits arising from, an identified
provision of a particular agreement. Such a claim of violation must,
as we have already noted, be distinguished from the arguments
adduced by a complaining party to demonstrate that the responding
party's measure does indeed infringe upon the identified treaty
provision.
223 (original emphasis; footnote omitted)
It follows, therefore, that, in order for a panel requ est to "present the problem clearly", it must plainly
connect the challenged measure(s) with the provision (s) of the covered agreem ents claimed to have
been infringed, so that the respondent party is aw are of the basis for the alleged nullification or
impairment of the complaining party's benefits. On ly by such connection between the measure(s) and
the relevant provision(s) can a respondent "know what case it has to answer, and ... begin preparing its
defence" .224

220Appellate Body Report, US – Carbon Steel, para. 125. (original emphasis)
221Panel Report, footnote 12 to para. 7.7 (citing Unite d States' response to Question 21 posed by the
Panel at the Second Panel Meeting (Panel Report, Annex E, p. E-103, para. 37)).
222Appellate Body Report, Thailand – H-Beams, para. 88.
224Appellate Body Report, Thailand – H-Beams, para. 88.

163. The Appellate Body stated in US – Carbon Steel that "compliance with the requirements of
Article 6.2 must be demonstrated on the face of the request for the establishment of a panel".
225
164. In the light of the above, we look to Argentin a's panel request to determine whether, on the
basis of the language used to make Argentina's cl aims therein, the United States should have known
that it was to prepare a defence ag ainst an "as such" challenge to United States statutes, the SAA, and
the SPB, which measures are claimed to contain an "irrefutable presumption" inconsistent with
Article 11.3 of the Anti-Dumping Agreement.
165. The resolution of this issue hinges on the inte rpretation of Section A.4, which is the only
paragraph in the panel request that specifically mentions an "irrefutable presumption". The opening
phrase of this paragraph indicates an "as applied" challenge, on the basis of Article 11.3, to the
USDOC's likelihood-of-dumping determ ination on OCTG from Argentina. Argentina then refers to
an "irrefutable presumption" as the basis for this challenge, and states that the presumption is "under
US law as such". (emphasis added) We note, first, that the term "as such" is well understood in WTO
dispute settlement parlance. As the Appellate Body observed in US – 1916 Act , a long line of cases
under the GATT "firmly established" 226 the principle that complaining parties were permitted to
challenge measures "as such"—by which it was unde rstood that the challenged measures operate in
general, without regard to their application in a sp ecific instance, or at times even without regard to
whether the measures were yet in effect. 227 This understanding continues in the WTO. 228 There can
thus be little doubt that Argentina's reference to "U S law as such" incorporated a challenge to certain
provisions of United States law, as such , in addition to a challenge to the USDOC's likelihood-of-
dumping determination as applied in the sunset review at issue.
166. Secondly, the logic of Section A.4 also suggests an "as such" challenge to certain provisions
of United States law, in addition to an "as app lied" challenge. Argentina's allegation of WTO-
inconsistency is founded on what it refers to as an "irrefutable presumption". This presumption is not
presented as flowing from the sunset review determina tion at issue; rather, it is presented as deriving
from the "US law" applied by the USDOC in making th at determination. Therefore, to establish the
WTO-inconsistency of the USDOC's likelihood-of-d umping determination, Argentina could proceed

225Appellate Body Report, US – Carbon Steel, para. 127.
227See, for example, GATT Panel Report, US – Wine and Grape Products , para. 4.1; GATT Panel
Report, US – Superfund , paras. 5.2.9-5.2.10; GATT Panel Report, US – Section 337 , para. 5.1; and GATT
228See, for example, Appellate Body Report, US – Softwood Lumber V , para. 63; Appellate Body
Report, US – Corrosion-Resistant Steel Sunset Review , para. 82; Appellate Body Report, US – Countervailing
Measures on Certain EC Products , paras. 146-147 and 150; Appellate Body Report, US – Lamb , para. 173;
and Appellate Body Report, US – 1916 Act, paras. 60-61.

by establishing the WTO-inconsistency of the "irrefu table presumption" itself, that is, of the United
States legal provision(s) embodying that presumption. In doing so, Argentina would establish, as a
consequence, that the ensuing sunset review determin ation is also inconsistent with the United States'
WTO obligations. Given the wording and logic of Section A.4, it is difficult for us to see how the
United States could not have been aware of the "as such" claim.
167. The United States emphasizes that the term "Deter mination" in the heading of Section A of
the panel request, under which Section A.4 falls, ma kes it clear that the claims in Section A are
limited to "as applied" challenges. We are unable to agree. Although the heading of Section A refers
to "as applied" claims, it is clear on reading the fi rst two sentences of Section A.1 that an "as such"
claim is also being advanced. Indeed, the United States appears to have acknowledged before the
Panel that an "as such" claim is evident in Section A.1, albeit it addresses other provisions of United
States law.
229 Having acknowledged that Section A.1 cont ains a number of "as such" claims, the
United States must have been aware that the term "Determination" in the heading of Section A could
not be read to limit Argentina's claims in Section A. 4 to "as applied" claims. We are therefore of the
view that Section A.4 should have placed the Un ited States on notice that Argentina was alleging
certain provisions of United States law to be incons istent, as such, with Article 11.3, because of an
"irrefutable presumption" found in those provisions.
168. We now turn to the question whether Argentin a's panel request clearly identifies where in
"US law" Argentina finds an "irrefutable presumption". The United States argues that the reference in
Section A.4 to "US law" is overly broad because it fails to specify the provisions of United States law
that contain the alleged presumption. We agree that such a broad reference to "US law" would not, in
and of itself, "present the problem clearly" in or der for a respondent party to be able to begin
preparing its defence. However, we note that Se ction A.4 of Argentina's pa nel request does not refer

229In response to one of the Panel's questions, the United States stated:
The claims identified in Sections A an d B of the Panel Request are limited
to:
As such claims:
- 19 USC. 1675(c)(4), in violation of Articles 11.1, 11.3, 11.4, 2.1, 2.2,
2.4, 6.1, 6.2, 6.6, 6.8, .69, 6.10, 12.2, 12.3, and Annex II of the Anti-
Dumping Agreement;
12
- 19 C.F.R. 351.218(e), in violation of Articles 11.1, 11.3, 11.4, 2.1, 2.2,
2.4, 6.1, 6.2, 6.6, 6.8, 6.9, 6.10, 12.2, 12.3, and Annex II of the Anti-
Dumping Agreement;
13
 12 Section A.1.
 13 Section A.1.
(United States' response to Question 22 posed by th e Panel at the Second Panel Meeting (Panel Report,
Annex E, p. E-103, para. 38 and footnotes 12 and 13 thereto)) The United States cited Section A.1 of the Panel
Request as the basis for these two "as such" claims.

to "US law" in isolation.
230 Section A.4 explicitly mentions the "[USDOC's] Sunset Policy Bulletin"
in addition to referring to "US law as such". More over, Section A.4 makes it clear that the "US law"
under challenge is the United States law that rela tes to the issue whether "termination of the
anti-dumping duty measure would be likely to lead to continuation or recurrence of dumping". Based
on this language, the challenge to "US law as such" could not be understood to refer to any provisions
of United States law other than those governing the substantive determination of the USDOC as to the
likelihood of continuation or recurrence of dumping.
169. Recalling the Appellate Body's observation that panel requests must be read "as a whole" 231,
we note that "page four" of Argentina's panel requ est specifically identifies the "US laws, regulations,
policies, and procedures" that Argentina claims "are inconsistent with US WTO obligations". These
provisions are the following: Sections 751(c) and 7 52 of the Tariff Act of 1930; the SAA; the SPB;
and Section 351.218 of the USDOC Re gulations. Not all of these provisions, however, relate to the
standards used by the USDOC when examining whether "termination of the anti-dumping duty
measure would be likely to lead to continuation or recurrence of dumping". 232 Of the provisions
identified by Argentina on "page four" of the panel request, Section 351.218 of the USDOC
Regulations clearly addresses the procedural—rather than the substantive—aspects of USDOC
sunset reviews, for example, setting out the contents and deadlines for interested parties' submissions.
Therefore, the United States should have been aware that Section 351.218 of the USDOC Regulations
was not the subject of Argentina's challenge to an alleged "irrefutable presumption" in "US law".
170. As for the remaining provisions identified by Argentina on "page four" of its panel request,
the United States contests that Sections 751(c) and 752(c) of the Tariff Act of 1930, the SAA, and the
SPB are within the panel's terms of reference. However, a review of these provisions reveals that they
form the basis of Argentina's challenge with respect to the alleged "irrefutable presumption". Section
751(c) of the Tariff Act of 1930 sets forth the gene ral obligation for the USDOC "to determine, in
accordance with [Section 752], whether revocation of the … antidumping duty order … would be

230Argentina's panel request contrasts with the complaining party's panel request that was considered by
the Appellate Body in India – Patents (US):
With respect to Article 63 [of the TRIPS Agreement], the convenient phrase
[in the panel request], "including but not necessarily limited to", is simply
not adequate to "identify the specific measures at issue and 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. If this phrase
incorporates Article 63, what Article of the TRIPS Agreement does it not
incorporate? Therefore, this phrase is not sufficient to bring a claim relating
to Article 63 within the terms of reference of the Panel.
(Appellate Body Report, India – Patents (US), para. 90)
231Appellate Body Report, US – Carbon Steel, para. 127.
232Section A.4 of Argentina's panel request.

likely to lead to continuation or recurrence of dumping". Section 752 provides more detailed rules for
the determinations required to be made in sunset re views, and paragraph (c) of this Section is entitled
"Determination of likelihood of continuation or r ecurrence of dumping". The SAA contains a section
entitled "Likelihood of Dumping", which explains th e basis for Section 752(c) of the Tariff Act
of 1930. Finally, the SPB is explicitly mentione d in Section A.4 of Argentina's panel request.
Section II.A of the SPB is entitled "Determination of Likelihood of Continuation or Recurrence of
Dumping". Section II.A.3 of the SPB provides that the USDOC "normally will determine that
revocation of an antidumping order or termination of a suspended dumping investigation is likely to
lead to continuation or recurrence of dumping" where one of the three stated scenarios applies.
171. These provisions thus set out the standards empl oyed by the USDOC in the course of making
likelihood-of-dumping determinations. As a resu lt, the United States could reasonably have been
expected to understand that these provisions were th e focus of Argentina's ch allenge with respect to
the alleged "irrefutable presumption". Given the fact that Section A.4 alleges that an "irrefutable
presumption" is found in United States law, as detailed above, and that this presumption is
inconsistent with Article 11.3, we are of the view that Argentina's panel request, read as a whole,
states the legal basis for the alleged WTO-inconsistency and adequately links the challenged measures
to the WTO provision claimed to have been infringed.
172. Although we do not disagree with the Panel's co nclusion in this regard, we nevertheless
recognize that Argentina's panel request could have been drafted with greater precision and clarity. In
our view, "as such" challenges against a Member's measures in WTO dispute settlement proceedings
are serious challenges. By definition, an "as such" claim challenges laws, regulations, or other
instruments of a Member that have general and prospective application, asserting that a Member's
conduct—not only in a particular instance that has occurred, but in future situations as well—will
necessarily be inconsistent with that Member's WTO obligations. In essence, complaining parties
bringing "as such" challeng es seek to prevent Members ex ante from engaging in certain conduct.
The implications of such challenges are obviously more far-reaching than "as applied" claims.
173. We also expect that measures subject to "as such" challenges would normally have
undergone, under municipal law, thorough scrutiny through various deliberative processes to ensure
consistency with the Member's international obl igations, including those found in the covered
agreements, and that the enactment of such a measu re would implicitly reflect the conclusion of that
Member that the measure is not inconsistent w ith those obligations. The presumption that WTO
Members act in good faith in the implementation of th eir WTO commitments is particularly apt in the
context of measures challenged "as such". We w ould therefore urge complaining parties to be
especially diligent in setting out "as such" claims in thei r panel requests as clearly as possible. In

particular, we would expect that "as such" cl aims state unambiguously the specific measures of
municipal law challenged by the complaining party and the legal basis for the allegation that those
measures are not consistent with particular provi sions of the covered agreements. Through such
straightforward presentations of "as such" claims, panel requests should leave respondent parties in
little doubt that, notwithstanding their own consid ered views on the WTO-consistency of their
measures, another Member intends to challenge t hose measures, as such, in WTO dispute settlement
proceedings.
174. We turn now to the Article 6.2 challenges th at the United States requests us to address
provided that certain conditions obtain. The United States asks us to find that Argentina's claim under
Article 11.3 of the Anti-Dumping Agreement relating to the USDOC "practice", and the claim under
Article X:3(a) of the GATT 1994 relating to the USDOC 's administration of the sunset review legal
regime, are not within the Panel's terms of refe rence. These requests of the United States are
premised on our deciding to address the merits of these claims, which Argentina has conditionally
cross-appealed. We discuss these claims, including the United States' Article 6.2 challenges thereto,
following our examination of the SPB below.
233
175. With respect to the United States' allegation th at Section B.3 of Argentina's panel request
does not set out "as such" or "as applied" claims under Articles 3.7 and 3.8 of the Anti-Dumping
Agreement, the United States requests a ruling only if Argentina were to appeal the Panel's findings
that the United States did not act inconsistently with these provisions. 234 Argentina has not cross-
appealed those findings. 235 We therefore do not need to make a finding on this aspect of the United
States' claim under Article 6.2 of the DSU.
176. In the light of the above, we uphold the Panel's finding, in paragraph 7.27 of the Panel
Report, that Section A.4 of Argentina's panel requ est, in accordance with Article 6.2 of the DSU, sets
out with sufficient clarity Argentin a's claims that Sections 751(c) and 752(c) of the Tariff Act of
1930, the SAA, and the SPB, are inconsistent, as such, with Article 11.3 of the Anti-Dumping
Agreement, by virtue of the alleged "irrefutable presump tion" contained in those provisions. We also
do not find it necessary to make a finding on the United States' contingent challenge under Article 6.2
of the DSU, with respect to Argentina's claims under Articles 3.7 and 3.8 of the Anti-Dumping
Agreement, because Argentina does not appeal the Panel's findings on those claims.

233Infra, paras. 216-221.
234United States' appellant's submission, para. 101; United States' response to questioning at the oral
hearing.
235Argentina's response to questioning at the oral hearing.

V. The Sunset Policy Bulletin
177. We now move to the issues concerning the SPB. We consider it useful to recall briefly, at the
outset, the requirements relating to reviews conducted pursuant to Article 11.3 of the Anti-Dumping
Agreement, generally referred to as "sunset reviews". Article 11.3 provides, in relevant part:
[A]ny definitive anti-dumping duty sh all be terminated on a date not
later than five years from its imposition … 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 dumpi ng and injury. (emphasis added;
footnote omitted)
178. Thus, the continuation of an anti-dumping duty, which is an "exception"
236 to the otherwise-
mandated expiry of the duty after five years, is su bject to certain conditions set out in Article 11.3.
These conditions were identified by the Appellate Body as follows:
[F]irst, that a review be initiated be fore the expiry of five years from
the date of the imposition of the duty; second, that in the review the
authorities determine that the expiry of the duty would be likely to
lead to continuation or recurrence of dumping; and third, that in the
review the authorities determine that the expiry of the duty would be
likely to lead to continuation or recurrence of injury.
237 (original
emphasis)
If any one of these conditions is not satisfied, the duty must be terminated.
179. In US – Corrosion-Resistant Steel Sunset Review , the Appellate Body emphasized the
importance of the terms "determine" and "review" in Article 11.3, stating:
The words "review" and "determine " in Article 11.3 suggest that
authorities conducting a sunset review must act with an appropriate
degree of diligence and arrive at a reasoned conclusion on the basis
of information gathered as part of a process of reconsideration and
examination.
238 (emphasis added)

236Appellate Body Report, US – Carbon Steel, para. 88.
237Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 104.
238Ibid., para. 111.

The Appellate Body also endorsed th at panel's description of the oblig ation contained in Article 11.3,
which description the Appellate Body found "closely resemble[d]" its own understanding:
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 application 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 dumpi ng and injury. 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.
239 (emphasis added; original
footnotes omitted)
180. The plain meaning of the terms "review" and "determine" in Article 11.3, therefore, compel
an investigating authority in a sunset review to undertake an examination, on the basis of positive
evidence, of the likelihood of continuation or recurrence of dumping and injury. In drawing
conclusions from that examination, the investigating authority must arrive at a reasoned determination
resting on a sufficient factual basis; it may not rely on assumptions or conjecture.
181. Having confirmed our understanding of Article 11.3, we turn to the United States' claims on
appeal challenging the Panel's findings with respect to the SPB. First, we address the issue of whether
the SPB is a "measure" subject to WTO dispute se ttlement. Secondly, we analyze whether Section
II.A.3 of the SPB is consistent with Article 11.3 of the Anti-Dumping Agreement.
A. The Sunset Policy Bulletin as a "Measure"
182. The Panel considered the SPB to be a measure th at can be subject to WTO dispute settlement.
The Panel relied on the Appellate Body Report in US – Corrosion-Resistant Steel Sunset Review ,
which "stated that any legal instrument under a WT O Member's law could also be challenged as a
measure before a WTO panel". 240 The Panel observed that the Appellate Body "was addressing
precisely the issue of the SPB" 241, and concluded that "there can be no doubt that the Appellate Body
considers the SPB to be a measure that can be subject to WTO dispute settlement".242

239Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 114 (quoting Panel
Report, US – Corrosion-Resistant Steel Sunset Review, para. 7.271).
240Panel Report, para. 7.136.
241Ibid.
242Ibid.

183. The United States challenges this finding of the Pa nel, arguing that the Panel erred in relying
on the Appellate Body Report in US – Corrosion-Resistant Steel Sunset Review because the
Appellate Body did not conclude, in that Report, th at the SPB is a measure. The United States argues
that:
[In US – Corrosion-Resistant Steel Sunset Review , the] Appellate
Body reversed the panel's finding that the SPB was not a measure
because the panel's analysis was insu fficient. However, in doing so,
the Appellate Body did not go on to "complete the analysis," thus
leaving the question of whether the SPB is a measure open. 243
(original emphasis; footnote omitted)
184. The United States underscores that the SPB is not a legal instrument under United States
law 244, but "simply a transparency tool to pr ovide the private sector with guidance". 245 The United
States adds that the SPB does not set forth rules or norms that are intended to have general and
prospective application; it does not bind the US DOC and the USDOC "is entirely free to depart from
[the] SPB at any time".246 Therefore, according to the United States, the SPB should not be viewed as
a measure subject to WTO dispute settlement.247
185. In addition, the United States submits that the Panel erred in concluding that the SPB is a
measure because such a conclusion does not result from "an objective assessment" consistent with
Article 11 of the DSU. The United States argues th at the Panel contravened Article 11 of the DSU
because it did not explain why the findings of the Appellate Body in US – Corrosion-Resistant Steel
Sunset Review, as to whether the SPB is a measure, "would be persuasive given the factual record in
this dispute".248 The United States further contends that the Panel failed to consider the United States'
explanations that "the SPB has no functional life of its own and has no independent legal status" 249,
and that "the Panel lacked the factual informa tion necessary to ... conclude that the SPB is a
measure".250

244Ibid., paras. 11 and 13.
245Ibid., para. 11.
246Ibid., para. 13.
247Ibid.
249Ibid., para. 11. (footnote omitted)
250Ibid., para. 12.

186. We turn first to the United States' understa nding of the Appellate Body's finding in US –
Corrosion-Resistant Steel Sunset Review . We disagree with the United States' assertion that, in that
case, the Appellate Body left open the question whether the SPB is a measure.
251 It is clear that by
reversing the panel's finding that "the Sunset Policy Bulletin is not a measure that is challengeable, as
such, under the WTO Agreement" 252, the Appellate Body concluded that the SPB is a measure subject
to WTO dispute settlement. A review of the Appe llate Body's reasoning in that case confirms this
view. It will be recalled that the Appellate Body co mpleted the analysis with respect to Japan's claim
that Section II.A.2 of the SPB was inconsistent , as such, with Articles 6.10 and 11.3 of the Anti-
Dumping Agreement.253 The Appellate Body would not have done so had it not regarded the SPB to
be a measure subject to WTO dispute settlement. We also observe that the Appellate Body declined
to complete the analysis as regards Japan's claim that Sections II.A.3 and II.A.4 of the SPB were
inconsistent, as such, with Article 11.3 of the Anti-Dumping Agreement . However, the Appellate
Body did so only "in view of the lack of relevant factual findings by the Panel or uncontested facts on
the Panel record". 254 This suggests that the Appellate Body treated the SPB as a measure subject to
WTO dispute settlement. In our view, therefore, the Panel was correct in its understanding of the
Appellate Body's finding with respect to the SPB and was correct to rely on that finding in coming to
the same conclusion in this case, without having to re-examine the very same question all over again.
187. We note the argument of the United States that the SPB is not a legal instrument under United
States law. This argument, however, is not releva nt to the question before us. The issue is not
whether the SPB is a legal instrument within the domestic legal system of the United States, but
rather, whether the SPB is a measure that may be challenged within the WTO system. The United
States has explained that, within the domestic legal system of the United States, the SPB does not bind
the USDOC and that the USDOC "is entirely free to depart from [the] SPB at any time". 255 However,
it is not for us to opine on matters of United Stat es domestic law. Our mandate is confined to
clarifying the provisions of the WTO Agreement and to determining whether the challenged
measures are consistent with those provisions. As noted by the United States 256, in US – Corrosion-
Resistant Steel Sunset Review, the Appellate Body indicated that "acts setting forth rules or norms that

252Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 100 (referring to Panel
Report, US – Corrosion-Resistant Steel Sunset Review, para. 7.195). See also, ibid., para. 212(a).
253Ibid., paras. 147-157. The Appellate Body rejected Japan's claim.
254Ibid., para. 190.
256Ibid.

are intended to have general and prospective app lication" are measures subject to WTO dispute
settlement.257 We disagree with the United States' app lication of these criteria to the SPB. In our
view, the SPB has normative value, as it provides administrative guidance and creates expectations
among the public and among private actors. 258 It is intended to have general application, as it is to
apply to all the sunset reviews conducted in the United States. It is also intended to have prospective
application, as it is intended to apply to sunset reviews taking place after its issuance. Thus, we
confirm—once again—that the SPB, as such, is subject to WTO dispute settlement.
188. Regarding the arguments presented by the United States relating to Article 11 of the DSU, we
disagree with the United States that the Panel did not assess objectively whether the SPB is a measure.
In our view, such an assessment is a legal charact erization and not just a factual one, and the Panel
correctly conducted its analysis. The Panel refe rred first to the SPB, wh ich formed the factual
information needed to conduct the exercise of legal characterization. The Panel had before it exactly
the same instrument that had been ex amined by the Appellate Body in US – Corrosion-Resistant
Steel Sunset Review ; thus, it was appropriate for the Panel, in determining whether the SPB is a
measure, to rely on the Appellate Body's conclu sion in that case. Indeed, following the Appellate
Body's conclusions in earlier disputes is not only appropriate, but is what would be expected from
panels, especially where the issues are the same. Although the Panel may have expressed itself in a
concise manner, we find no fault in its analysis that could justify ruling that the Panel failed to
observe its obligations under Article 11 of the DSU.
189. Accordingly, we uphold the Panel's finding, in paragraph 7.136 of the Panel Report, that the
SPB is a "measure" subject to WTO dispute settlement.

257Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 82. (footnote omitted)
258We note, in this regard, the introductory statement of the SPB:
This policy bulletin proposes guidance regarding the conduct of sunset
reviews. As described below, the proposed policies are intended to
complement the applicable statutory and regulatory provisions by providing
guidance on methodological or analytical issues not explicitly addressed by
the statute and regulations.
(SPB, p. 18871) This statement was also referenced by the Appellate Body in US – Corrosion-Resistant Sunset
Review, at paragraph 74.

B. Consistency of Section II.A.3 of the Sunset Policy Bulletin with Article 11.3 of the
Anti-Dumping Agreement
190. The United States claims that the Panel erred in finding Section II.A.3 of the SPB to be
inconsistent with Article 11.3 of the Anti-Dumping Agreement.
259 According to Section II.A.3, the
USDOC will "normally" make an affirmative de termination of likelihood of continuation or
recurrence of dumping where one of three scen arios—centred around dumping margins and import
volumes—obtains. The relevant part of Section II.A.3 reads as follows:
II. Sunset Reviews in Antidumping Proceedings
A. Determination of Likelihood of Continuation or Recurrence of
Dumping

3. Likelihood of Continuation or Recurrence of Dumping
…
 ... the Department normally will de termine that revocation of an
antidumping order or termina tion 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 the 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.
 The Department recognizes that, in the context of a sunset review
of a suspended investigation, the data relevant to the criteria under
paragraphs (a) through (c), above, may not be conclusive with respect
to likelihood. Therefore, the Depa rtment may be more likely to
entertain good cause arguments under paragraph II.C in a sunset
review of a suspended investigation.
260
191. Sections II.A.4 and II.C of the SPB are also relevant to the United States' claim. Section
II.A.4 addresses the situations where the USDOC "normally" will make a determination of no
likelihood of continuation or recurrence of dumping . For its part, Section II.C provides that the

259Panel Report, para. 7.166.
260SPB, p. 18872.

USDOC will consider "other price, cost, market or economic factors" in anti-dumping sunset reviews
if the USDOC determines that "good cause" to consider such other factors "is shown".261

261The relevant parts of Sections II.A.4 and II.C of the SPB provide as follows:
II. Sunset Reviews in Antidumping Proceedings
A. Determination of Likelihood of Continuation or Recurrence of Dumping

4. No Likelihood of Continuation or Recurrence of Dumping
…
 ... the Department normally will determine that revocation of an
antidumping 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 or der or the suspension agreement, as
applicable, and import volumes remain ed steady or increased. Declining
margins alone normally would not qua lify because the legislative history
makes clear that continued margins at any level would lead to a finding of
likelihood. See section II.A.3, above. In analyzing whether import volumes
remained steady or increased, the Department normally will consider
companies' relative market share. Such information should be provided to
the Department by the parties.
 The Department recognizes that, in the context of a sunset review of a
suspended investigation, the elimination of dumping coupled with steady or
increasing import volumes may not be conclusive with respect to no
likelihood. Therefore, the Department may be more likely to entertain good
cause arguments under paragraph II.C in a sunset review of a suspended
investigation.

C. Consideration of Other Factors
 Section 752(c)(2) of the Act provides that, if the Department determines
that good cause is shown, the Depart ment also will consider other price,
cost, market or economic factors in determining the likelihood of
continuation or recurrence of dumping. The SAA at 890, states that such
other factors might include,
the market share of foreign produ cers subject to the antidumping
proceeding; changes in exchange rates, inventory levels, production
capacity, and capacity utilization; any history of sales below cost of
production; changes in manufacturing technology in the industry; and
prevailing prices in relevant markets.
The SAA at 890, also notes that the list of factors is illustrative, and that the
Department should analyze such information on a case-by-case basis.
Therefore, the Department will consider other factors in AD sunset reviews
if the Department determines that good cause to consider such other factors
exists. The burden is on an interested party to provide information or
evidence that would warrant consideration of the other factors in question.
With respect to a sunset review of a suspended investigation, where the
Department determines that good cause exists, the Department normally will
conduct the sunset review consiste nt with its practice of examining
likelihood under section 751(a) of the Act.
(SPB, pp. 18872 and 18874)

192. In US – Corrosion-Resistant Steel Sunset Review , the Appellate Body had occasion to
examine whether Sections II.A.3 and II.A.4 of the SPB are consistent, as such, with Article 11.3 of
the Anti-Dumping Agreement. The Appellate Body stated:
We believe that a firm evidentiary foundation is required in each case
for a proper determination under Article 11.3 of the likelihood of
continuation or recurrence of dumpi ng. Such a determination cannot
be based solely on the mechanistic application of presumptions. We
therefore consider that the consistency of Sections II.A.3 and 4 of the
Sunset Policy Bulletin with Article 11.3 of the Anti-Dumping
Agreement hinges upon whether those provisions instruct USDOC to
treat dumping margins and/or import volumes as determinative or
conclusive, on the one hand, or merely indicative or probative, on the
other hand, of the likelihood of future dumping.
262
193. Relying on these observations of the Appellate Body, the Panel began its analysis by setting
out the standard for determining whether Section II.A.3 of the SPB is consistent, as such, with
Article 11.3 of the Anti-Dumping Agreement . The Panel stated that a scheme that attributes a
"determinative"/"conclusive" 263 value to certain factors in sunset determinations—as opposed to only
an indicative value—is "likely to violate" Article 11.3 of the Anti-Dumping Agreement.264 The Panel
was of the view that if any of the three scenarios d escribed in Section II.A.3 of the SPB is regarded as
determinative/conclusive for the purpose of determining the likelihood of continuation or recurrence
of dumping, "it will follow that Section II.A.3 of the SPB is inconsistent with Article 11.3". 265
However, if the scenarios are regarded as "simply indicative", Section II.A.3 of the SPB will be found
to be consistent with Article 11.3.
266
194. The United States does not object to the manner in which the Panel framed the issue; the
United States considers that the Panel correctly stat ed that it was charged with the task of evaluating
whether the SPB requires the USDOC to treat the three scenarios involving dumping margins and
import volumes as conclusive of likelihood of continuation or recurrence of dumping. 267 However,
the United States is of the view that the Panel misapplied the standard it had set out.268 For the United

262Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 178.
263Panel Report, para. 7.142 (quoting Appellate Body Report, US – Corrosion-Resistant Steel Sunset
Review, para. 178). (Panel's emphasis omitted)
264Ibid., para. 7.143.
265Ibid., para. 7.155.
266Ibid.
267United States' appellant's submission, paras. 14, 16, and 18.
268Ibid., para. 18.

States, the SPB is "simply a transparency tool " that provides guidance and, therefore, it was
"inaccurate [for the Panel] to conclude that the SPB requires that [the USDOC] do anything at all".269
195. The United States' appeal is founded on the Pa nel's alleged failure to comply with its
obligations under Article 11 of the DSU. The Unite d States submits that the SPB is part of United
States municipal law. According to the United St ates, the import of a WTO Member's municipal law
is a question of fact that requires an examination of the "status and meaning" of the measure at issue
within the municipal legal system itself. 270 The analysis of the meaning of the SPB conducted by the
Panel ignored "its actual status and meaning" 271 under United States law; therefore, the United States
argues, it cannot reflect an "objective assessment" under Article 11 of the DSU.272
196. The United States submits that the Panel's conclusion that the three scenarios in Section II.A.3
of the SPB are regarded as conclusive of likeliho od of continuation or recurrence of dumping had for
its sole basis "an analysis of statistics on 'the application' of the SPB in past sunset reviews". 273 Such
an analysis does not constitute an "objective assessment" because "[t]here is no principle of
interpretation of U.S. law which provides that a previously non-binding document becomes, through
repeated application, binding." 274 For the United States, "[i]f [the USDOC] has discretion to apply a
law in a particular manner, the fact that it has, to date, not exercised its discretion in that manner
would not change the fact that [the USDOC] has the discretion to do so." 275 The United States adds
that the Panel's analysis is fundamentally flawed as "[t]he Panel [did] no more than note a correlation
between the results in particular sunset re views and the scenarios set forth in the SPB" 276, but it did
not "ask the question of whether the SPB caused the determinations in question".277
197. In our view, the Panel correctly articulated the standard for determining whether Section
II.A.3 of the SPB is inconsistent, as such, with Article 11.3 of the Anti-Dumping Agreement . We
therefore turn to the question whether the Panel erre d in applying that standard in the course of its
interpretation of the SPB. We note, in this respect, that the task of the Panel was to evaluate whether

269United States' appellant's submission, para. 25. (original underlining)
270Ibid., para. 19.
271Ibid.
272Ibid., paras. 19 and 23.
273Ibid., para. 14.
274Ibid., para. 30.
275Ibid.
276Ibid., para. 31.
277Ibid. (original emphasis)

the SPB complies with Article 11.3 of the Anti-Dumping Agreement, and that the interpretation of the
SPB had to be carried out in that light, rather than in the light of United States municipal law.
198. In order to interpret the SPB so as to determ ine whether the three scenarios described in
Section II.A.3 of the SPB are regarded as "determi native"/"conclusive", or "simply indicative", the
Panel started its analysis with an examination of th e text of the SPB. In so doing, it acted in a manner
consistent with the Appellate Body's guidance in US – Corrosion-Resistant Steel Sunset Review:
When a measure is challenged "as such", the starting point for an
analysis must be the measure on its face.
278
199. The textual analysis led the Panel to conclude that the SPB was "not sufficiently clear as to
whether the provisions of Section II.A.3 relating to the three factual scenarios are determinative for
purposes of the USDOC's likelihood determinations". 279 The Appellate Body arrived at the same
conclusion with respect to the SPB in US – Corrosion-Resistant Steel Sunset Review , when it stated
that "the language of Section II.A.3 is not altogether clear on this point" 280 and that "when read in
conjunction with the SAA, it seems that Section II.A.3 might not instruct USDOC to treat these two
factors [import volumes and historical dumping margins] as 'conclusive' in every case".281
200. We also note, as the Panel did, that Section II.A.3 provides that in the context of a sunset
review of a suspended investigation, the three s cenarios "may not be conclusive with respect to
likelihood".282 One might infer a contrario from this language that, in the context of a revocation
of an anti-dumping order (as opposed to the cont ext of termination of a suspended anti-dumping
investigation), the three scenarios will be regard ed as conclusive. Nevertheless, as the Appellate
Body indicated in US – Corrosion-Resistant Steel Sunset Review , such a reasoning is not sufficient
to provide a definitive response to our inquiry. Th erefore, we agree with the Panel that the text
of the SPB is not dispositive of the question wh ether the three scenarios set out in the SPB are
regarded as determinative/conclu sive, or merely indicative in the USDOC's likelihood-of-dumping
determinations.
201. Having determined that the text of the SPB do es not "resolve[] the issue of whether Section
II.A.3 of the SPB envisions that dumping margins and import volumes should be treated as conclusive

278Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 168.
279Panel Report, para. 7.157.
280Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 179.
281Ibid., para. 181 (quoting Section II.A.3 of the SPB). (original emphasis)
282SPB, Section II.A.3. A similar sentence is contained in Section II.A.4 of the SPB.

in sunset reviews" 283, the Panel proceeded to "analyse eviden ce submitted by Argentina regarding the
manner in which [Section II.A.3 had] so far been implemented by the USDOC". 284 In so doing, the
Panel followed the Appellate Body's guidance in US – Carbon Steel:
The party asserting that another party's municipal law, as such, is
inconsistent with relevant treat y obligations bears the burden of
introducing evidence as to the scope and meaning of such law to
substantiate that assertion. Such evidence will typically be produced
in the form of the text of the relevant legislation or legal instruments,
which may be supported, as appropriate, by evidence of the consistent
application of such laws , the pronouncements of domestic courts on
the meaning of such laws, the opinions of legal experts and the
writings of recognized scholars. The nature and extent of the
evidence required to satisfy the burden of proof will vary from case
to case.
285 (emphasis added; footnote omitted)
202. It is well settled that, as a general rule, it rests upon the complaining party to establish the
inconsistency of the measure it challenges with a particular provision of a WTO covered agreement.286
In this case, the burden was therefore on Argentina to establish that the th ree scenarios in Section
II.A.3 of the SPB are regarded by the USDOC as determinative/conclusive of likelihood of
continuation or recurrence of dumping and, therefor e, that Section II.A.3 is inconsistent with
Article 11.3 of the Anti-Dumping Agreement because the ensuing determinations are not founded on
rigorous examination or a sufficient factual basis. In particular, as the text of the SPB is equivocal in
this regard, Argentina had to estab lish that the consistent applicati on of the SPB revealed that the
three scenarios in Section II.A.3 of the SPB are rega rded by the USDOC as determinative/conclusive
for its likelihood determination.
203. Argentina, as the complaining party, sought to discharge its burden by filing Exhibits
ARG-63 and ARG-64. Exhibit ARG-63 is a compilati on of documents relating to 291 sunset review
determinations made by the USDOC prior to the submission of Argentina's request for
consultations.287 Exhibit ARG-64 is a compilation of documen ts relating to six sunset determinations
made by the USDOC during the period following Argentina's request for consultations, up to
December 2003. In addition to the compilation of cases, Exhibits ARG-63 and ARG-64 include a
spreadsheet, prepared by Argentina, that presents statistical data, inter alia , on the results of the

283Panel Report, para. 7.158.
284Ibid.
285Appellate Body Report, US – Carbon Steel, para. 157. This statement was also cited and confirmed
by the Appellate Body in US – Corrosion-Resistant Steel Sunset Review, para. 168.
286See, for example, Appellate Body Report, Japan – Apples , para. 152; and Appellate Body Report,
EC – Hormones, para. 98.
287WT/DS268/1, G/L/572, G/ADP/D43/1, 10 October 2002.

determinations. Argentina asserted before the Pa nel that "these statistics demonstrate that the
USDOC has relied on one of the three factual scenarios set out in Section II.A.3 of the SPB in every
sunset review in which it found likelihood"
288 and that this consistent practice proves that these
scenarios contain an irrefutable presumption of likelihood of continuation or recurrence of dumping.
204. Before the Panel, the United States contested Ar gentina's interpretation of the statistics. It
argued that the evidence presented in the individual cases could have dictated the result, rather than
any alleged irrefutable presumption, but that "we simply do not know". 289 Responding to the Panel's
question as to whether the statistics were factually corr ect, the United States indicated that it had "not
examined each and every sunset review cited by Argentina" but that it had "no reason to believe that
the overall total of sunset revi ews conducted and the ultimate outcomes in those sunset reviews
alleged by Argentina is significantly flawed ".290 The United States also stated that "these statistics
can at best indicate a repeated pattern of similar responses to a set of circumstances" and that "the data
submitted by Argentina focuses only on the results of individual sunset reviews conducted by the
USDOC and ignores the particular circumstances of each review." 291
205. The Panel concluded that "the evidence s ubmitted by Argentina in exhibit ARG-63
demonstrates that the USDOC does in fact perceive the provisions of Section II.A.3 of the SPB as
conclusive regarding the issue of likelihood of c ontinuation or recurrence of dumping in the case of
revocation of an order." 292 The Panel said that it "based [its] an alysis on the statistics regarding the
determinations made before the date of initiation of [the] panel proceedings" 293 (that is, on the data
included in Exhibit ARG-63 only and not in Exhibit ARG-64). The Panel jus tified its conclusion in
one sentence:
An analysis of the statistics provi ded by Argentina demonstrates that
the USDOC applied the contested provisions of the SPB in each
sunset review and found likelihood of continuation or recurrence in
each one of these sunset reviews on the basis of one of the three
scenarios contained in Section II.A.3 of the SPB.
294

288Panel Report, para. 7.158.
289Ibid. (quoting United States' first written submission to the Panel, para. 186).
290Ibid., para. 7.160 (quoting United States' response to Question 14(a) posed by the Panel following
the Second Panel Meeting (Panel Report, Annex E, p. E-98, para. 16)). (underlining added by the Panel)
291Ibid., para. 7.161 (citing United States' response to Question 14(b) posed by the Panel following the
Second Panel Meeting (Panel Report, Annex E, p. E-98, paras. 18-19)).
292Ibid., para. 7.165.
293Ibid.
294Ibid.

206. Before we evaluate the Panel's analysis in reaching its conclusion that "the USDOC does in
fact perceive the provisions of Section II.A.3 of the SPB as conclusive" 295, we wish to note certain
factual information gleaned from the Panel record and through questions posed during the oral
hearing, and on which there is no substantive disag reement between Argentina and the United States.
Of the 291 sunset review determinations contained in Exhibit ARG-63, domestic interested parties did
not participate in 74 cases, with the result that th e anti-dumping duty orders were revoked. In the
remaining 217 cases, the USDOC made affirmative likelihood determinations. However, foreign
respondent parties participated in the review proceedings in only 41 (or 43 296) of these 217 cases.
Out of these 41 (or 43) cases, foreign respondent parti es introduced "other good cause factors" only in
a limited number of them.297
207. We also note that Section 752(c)(1) of the United States Tariff Act of 1930, which is the
statutory provision of the United States law governi ng sunset review determin ations of likelihood of
continuation or recurrence of dumping, lays do wn that, in making such determinations, the
administering authority "shall consider":
(A) the weighted average dumping margins determined in the
investigation and subsequent reviews, and
(B) the volume of imports of the subject merchandise for the period
before and the period after the issuance of the antidumping duty
order or acceptance of the suspension agreement.
298
Section 752(c)(2) of the Act provides that:
If good cause is shown, the administering authority shall also
consider such other price, cost, market, or economic factors as it
deems relevant.299
The SAA, which provides an authoritative interpre tation of the statute, refers to these statutory
provisions and indicates how the above-mentioned statutory provisions are to be followed by the
investigating authority. Before the Panel, Argen tina argued that Section 752(c) of the Tariff Act of

295Panel Report, para. 7.165.
296In response to questioning at the oral hearing, th e United States identified 41 sunset review cases
where the existence of likelihood of dumping was contes ted. Argentina referred to 43 cases. Argentina also
explained that the difference between the two figures resulted from differences in methodology.
297According to the United States, in about 300 sunset review determinations made so far by the
USDOC under Article 11.3 of the Anti-Dumping Agreement, foreign respondent parties have participated in the
proceedings in about 15 per cent of th e cases only, and of those cases, "oth er good cause factors" have been
introduced by them only in a limited number of cases.
298Exhibit ARG-1 submitted by Argentina to the Panel, p. 1157.
299Ibid.

1930 and the SAA are inconsistent, as such, with Article 11.3 of the Anti-Dumping Agreement as
they are the source of the alleged "irrefutable presu mption". The Panel rejected Argentina's claims
and found that Section 752(c) of the Tariff Act of 1930 and the SAA are not inconsistent, as such,
with Article 11.3 of the Anti-Dumping Agreement. Argentina does not challenge these Panel findings
on appeal.
208. In our view, "volume of dumped imports" a nd "dumping margins", before and after the
issuance of anti-dumping duty orders, are highly import ant factors for any determination of likelihood
of continuation or recurrence of dumping in sunset reviews, although other factors may also be as
important, depending on the circumstances of the case. The three factual scenarios in Section II.A.3
of the SPB, which describe how these two factors w ill be considered in i ndividual determinations,
thus have certain probative value, the degree of wh ich may vary from case to case. For example, if,
under scenario (a) of Section II.A.3 of the SPB, dumping continued with substantial margins despite
the existence of the anti-dumping duty order, this would be highly probative of the likelihood that
dumping would continue if the anti-dumping order we re revoked. Conversely, if, under scenarios (b)
and (c) of Section II.A.3 of the SPB, imports ceased after issuance of the anti-dumping duty order, or
imports continued but without dumping margins, th e probative value of the scenarios may be much
less, and other relevant factors may have to be examined to determine whether imports with dumping
margins would "recur" if the anti-dumping duty orde r were revoked. The importance of the two
underlying factors (import volumes and dumping marg ins) for a likelihood-of-dumping determination
cannot be questioned; however, our concern here is with the possibl e mechanistic application of the
three scenarios based on these factors, such that other factors that may be of equal importance are
disregarded.
209. In our view, therefore, in order to objectiv ely assess, as required by Article 11 of the DSU,
whether the three factual scenarios of Sec tion II.A.3 of the SPB are regarded as
determinative/conclusive, it is essential to examin e concrete examples of cases where the likelihood
determination of continuation or recurrence of dump ing was based solely on one of the scenarios of
Section II.A.3 of the SPB, even though the probati ve value of other factors might have outweighed
that of the identified scenario. Such an ex amination requires a qualitative assessment of the
likelihood determinations in individual cases.
210. We find that, in reaching its conclusion on th e USDOC's consistent application of the SPB,
the Panel relied solely on the overall statistics or aggregate results. The Panel did not undertake a
qualitative analysis of at least some of the indivi dual cases in Exhibit ARG-63 in order to see whether
the USDOC's determinations in those cases were objective and rested on a sufficient factual basis.

211. A qualitative analysis of individual cases in all likelihood would have revealed a variety of
circumstances. There could well have been cases where affirmative determinations were made
objectively, based on one of the three scenarios. There could have been other cases where the
affirmative determinations were flawed because the USDOC made its decisions relying solely on one
of the scenarios of the SPB, even though the probat ive value of other factors outweighed it. There
could have been yet other cases where the USDOC summarily rejected or ignored other factors
introduced by foreign respondent parties, regardless of their probative value.
212. The Panel record does not show that the Pa nel undertook any such qualitative assessment of
at least some of the cases of Exhibit ARG-63 with a view to discerning whether the USDOC regarded
the existence of one of the factual scenarios of the SPB as determinative/conclusive for its
determinations. The Panel also appears not to have examined in how many cases the foreign
respondent parties participated in the proceedings , in how many they introduced other "good cause"
factors, and how the USDOC dealt with those factors when they we re introduced. Such an inquiry
would have enabled the Panel to identify and undertak e a qualitative analysis of at least some of those
cases to see whether the affirmative determinations were made solely on the basis of one of the
scenarios to the exclusion of other factors. Th e Panel failed to undert ake any such qualitative
assessment and relied exclusively on the overall statistics or aggregated results of Exhibit ARG-63.
The fact that affirmative determinations were made in reliance on one of the three scenarios in all the
sunset reviews of anti-dumping duty orders where domestic interested parties took part
300 strongly
suggests that these scenarios are mechanistically applied. However, without a qualitative examination
of the reasons leading to such determinations, it is not possible to conclude definitively that these
determinations were based exclusively on these scenarios in disregard of other factors.
213. In this context, we also note that Section 752(c)(2) of the Tariff Act of 1930, the SAA, and
Section II.C of the SPB allow the USDOC to consider "other factors" if "good cause" is shown. The
USDOC Regulations also allow foreign respondent parties to introduce other factors in their responses
to the notice of initiation of the sunset review pr oceedings. Although good cause has to be shown by
the respondent parties to the satisfaction of the USDO C to admit "other factors" , the fact remains that
United States law provides for consideration of "other factors". Argentina has not challenged Section
II.C of the SPB relating to consideration of "other factors" or "good cause" being shown. Its case is
that other factors must be taken into account by the USDOC on its own initiative, and that even where
other factors are introduced by foreign respondent parties, the USDOC routinely rejects or ignores

300We note that in one case, Sugar and Syrups From Canada (Final Results of Full Sunset Review:
Sugar and Syrups From Canada, United States Federal Register, Vol. 64, No. 171 (3 September 1999), p. 48362
(Tab 261 of Exhibit ARG-63 submitted by Argentina to the Panel)), the USDOC based its determination on
other factors. However, in that case, none of the three scenarios in Section II.A.3 of the SPB was present.

them because it applies solely the three scen arios of the SPB in a mechanistic fashion.
301 This line of
argument of Argentina, concerning specific cases, again shows the need for qualitative assessment of
individual cases on the part of the Panel to see whet her the USDOC's consistent application reveals
such disregard of other factors.
214. The Panel underscores that "the United States neither challenged nor disproved the factual
correctness of [the] statistics" presented in Exhibit ARG-63. 302 It is important to note, however, that
although the United States did not question the f actual correctness of the spreadsheet included in
Exhibit ARG-63, the United States argued, before th e Panel, that the statistics provided by Argentina
in Exhibits ARG-63 and ARG-64 had no probative va lue with respect to the question whether the
three scenarios in Section II.A.3 of the SPB are determinative/conclusive for purposes of sunset
determinations.303 The United States also contended that the statistics in Exhibits ARG-63 and
ARG-64 ignore the factual circumstances of the listed sunset reviews, which underpinned the
USDOC's ultimate findings. 304 It is regrettable that the Unite d States did not substantiate these
assertions with reference to cases where other factors constituted the basis of the USDOC's
determination; it is also unfortunate that the United States did not identify cases where the
circumstances were such that the probative value of the identified scenario outweighed that of other
factors introduced by interested parties, so as to counter the pr oposition that the USDOC applies the
SPB scenarios in a mechanistic fashion. Had th e United States furnished such information, the
Panel's task would have been fac ilitated. Nevertheless, the lack of assistance from the United States
cannot excuse the Panel from conducting an "objec tive assessment of the matter" as required by
Article 11 of the DSU.
215. In the light of the above, we find that the Panel did not "make an objective assessment of the
matter", as required by Article 11 of the DSU. It apparently reached its conclusion—that the three
scenarios in Section II.A.3 of the SPB are perceived by the USDOC to be determinative/conclusive of
the likelihood of continuation or recurrence of dump ing—on the sole basis of the overall statistics in
Exhibit ARG-63. The Panel record reveals no qualita tive analysis of even some of the cases in
Exhibit ARG-63, and the Panel Report contains only a single sentence justifying its conclusion based
on the overall statistics.
305 Consequently, we reverse the Panel's findings, in paragraphs 7.166

302Panel Report, para. 7.165.
303See United States' response to Question 14(b) posed by the Panel at the Second Panel Meeting
(Panel Report, Annex E, p. E-98, paras. 17-19). In response to questioning at the oral hearing, the United States
confirmed that it took this position before the Panel.
304United States' response to Question 14(b) posed by the Panel at the Second Panel Meeting (Panel
Report, Annex E, p. E-98, para. 18).
305Panel Report, para. 7.165.

and 8.1(b) of the Panel Report, that Section II. A.3 of the SPB is inconsistent, as such, with
Article 11.3 of the Anti-Dumping Agreement. We wish to emphasize that we have not thereby
concluded that Section II.A.3 of the SPB is consistent, as such, with Article 11.3 of the Anti-Dumping
Agreement. Rather, we have found that the Panel's conclu sion to the contrary must be reversed due to
its failure to comply with Article 11 of the DS U. Thus, our reasoning here does not exclude the
possibility that, in another case, it could be properl y concluded that the three scenarios in Section
II.A.3 of the SPB are regarded as determinative/c onclusive of the likelihood of continuation or
recurrence of dumping. However, such a conclu sion would need to be supported by a rigorous
analysis of the evidence regarding the manner in wh ich Section II.A.3 of the SPB is applied by the
USDOC.
C. Conditional Appeals of Argentina
216. Argentina has brought conditional appeals with respect to: (1) Article X:3(a) of the GATT
1994; and (2) the "practice" of the USDOC regarding its likelihood determinations in sunset reviews.
These appeals are conditioned on the reversal of e ither the Panel's conclusion that the SPB is a
"measure" for purposes of WTO dispute settlement, or the Panel's conclusion that Section II.A.3 of
the SPB is inconsistent, as such, with Article 11.3 of the Anti-Dumping Agreement. As we reverse
the Panel's conclusion that Section II.A.3 of the SPB is inconsistent, as such, with Article 11.3 of the
Anti-Dumping Agreement, we examine these two conditional claims of Argentina.
217. Argentina claims that the USDOC has conducte d sunset reviews in a biased and unreasonable
manner, in violation of Article X:3(a) of the GATT 1994. This provision states that every WTO
Member "shall administer in a uniform, impartia l and reasonable manner al l its laws, regulations,
decisions and rulings". We observe, first, that allegations that the conduct of a WTO Member is
biased or unreasonable are serious under any circumst ances. Such allegations should not be brought
lightly, or in a subsidiary fashion. A claim under Article X:3(a) of the GATT 1994 must be supported
by solid evidence; the nature and the scope of the claim, and the evidence adduced by the
complainant in support of it, should reflect the gravity of the accusations inherent in claims under
Article X:3(a) of the GATT 1994.
218. The conditional appeal of Argentina is based on Exhibits ARG-63 and ARG-64. Argentina
relies on these exhibits to contend that: "[a] reco rd of 223 wins and 0 losses (or even 35 wins and 0
losses to use the U.S. figures of so-called 'contested ' cases) for the U.S. industry demonstrates a lack
of impartiality, and the unreasonable administrati on of national laws, regulations, decisions, and
rulings."
 306 Argentina submits that "[Exhibits] ARG-63 and ARG-64 demonstrate[] that every time

306Argentina's other appellant's submission, para. 296.

(in 100 percent of the cases) where the [USDOC] finds that at least one of the three criteria of the SPB
is satisfied, the [USDOC] makes an affirmative finding of likely dumping without considering
additional factors."
 307
219. In order to prove its allegation, Argentin a had to establish that the SPB had been
"administered" by the USDOC in a partial or unreaso nable manner. However, as we have explained
above, the Panel record does not reveal that ther e has been any qualitative assessment of individual
cases found in Exhibit ARG-63. In the circumstances, it would be impossible to conclude on the basis
of the overall statistics alone that the determinations were flawed due to lack of objectivity on the part
of the USDOC. We also note that the United States challenges Argentina's "factual demonstration":
... the exhibits Argentina supplied to the Panel in no way
demonstrated that [the USDOC] fa iled to take "additional factors"
into account. The "evidence" in these exhibits demonstrated at best a
correlation between the existence of one of the factors in the Sunset
Policy Bulletin ("SPB") and the outcome in a given dispute; it
demonstrated nothing about [the USDOC's] consideration of
additional factors in any of the de terminations allegedly illustrating
this "practice."
 308 (original emphasis)
The factual premise of Argentina's claim under Article X:3(a) is thus not undisputed. We therefore
find that the record does not allow us to complete the analysis of Argentina's conditional appeal with
respect to Article X:3(a) of the GATT 1994.
220. We move now to Argentina's conditional appeal concerning the "practice" of the USDOC.
This conditional claim of Argentina is also based on the factual premise that "[Exhibits] ARG-63 and
ARG-64 demonstrate[] that every time (in 100 percen t of the cases) where the [USDOC] finds that at
least one of the three criteria of the SPB is satisfied, the [USDOC] makes an affirmative finding of
likely dumping without considering additional factors."
 309 Here again, we note that the Panel record
reveals no qualitative assessment of individual cases f ound in Exhibit ARG-63. As we noted above,
this factual premise (particularly "without consider ing additional factors") is challenged by the United
States and is not undisputed. 310 Therefore, even assuming arguendo that a "practice" may be
challenged as a "measure" in WTO dispute settle ment—an issue on which we express no view here—
we find that the record does not allow us to complete the analysis of Argentina's conditional appeal
with respect to the "practice" of the USDOC regarding the likelihood determination in sunset reviews.

307Argentina's other appellant's submission, para. 287.
309Argentina's other appellant's submission, para. 287.

221. As the record does not allow us to complete th e analysis with respect to Argentina's claims
concerning Article X:3(a) of the GATT 1994 and the "practice" of the USDOC, we do not need to
make findings on the United States' challenge unde r Article 6.2 of the DSU to these two conditional
claims of Argentina.311
VI. Waiver Provisions of United States Laws and Regulations
222. The United States claims that the Panel erred in finding that Section 751(c)(4)(B) of the Tariff
Act of 1930 and Section 351.218(d)(2)(iii) of the US DOC Regulations are inconsistent, as such, with
Article 11.3 of the Anti-Dumping Agreement , and that Section 351.218(d)(2)(iii) of the USDOC
Regulations is inconsistent, as such, with Articles 6.1 and 6.2 of the Anti-Dumping Agreement. The
United States also submits claims under Article 11 of the DSU relating to these waiver provisions.
We address first the Panel's findings under the Anti-Dumping Agreement and then the claim under
Article 11 of the DSU.
223. In our discussion, we adopt the Panel's termi nology and refer to Section 751(c)(4)(B) of the
Tariff Act of 1930 and Section 351. 218(d)(2)(iii) of the USDOC Regulations, collectively, as the
"waiver provisions". 312 The Panel also characterized the waivers resulting from the operation of
Section 751(c)(4)(B) of the Tariff Act of 1930 and Section 351.218(d)(2)(i) of the USDOC
Regulations
 313, jointly, as "affirmative waivers", and th e waivers resulting from the operation of
Section 751(c)(4)(B) of the Tariff Act of 1 930 and Section 351.218(d)(2)(iii) of the USDOC
Regulations, jointly, as "deemed waivers".314 In addition, we use the te rm "deemed waiver provision"
when referring to Section 351.218(d)(2)(iii) of the USDOC Regulations.
A. Consistency of the Waiver Provisions with Article 11.3 of the Anti-Dumping
Agreement
224. Before the Panel, Argentina argued that Artic le 11.3 requires investigating authorities to
assume an "active role in sunset reviews" a nd "to gather and evaluate relevant facts". 315 Because the
waiver provisions under United States law—both affirmative and deemed waivers—prevent the
USDOC from engaging in this "substantive review", Argentina claimed, they are inconsistent, as

311See supra, para. 174.
312Panel Report, para. 7.72.
313Argentina did not challenge before the Panel the consistency of Section 351.218(d)(2)(i) of the
USDOC Regulations with the United States' obligations under the Anti-Dumping Agreement. (See Panel Report,
para. 3.1)
314Ibid., para. 7.83.
315Ibid., para. 7.72.

such, with Article 11.3.
316 In addressing this claim, the Panel found it useful to analyze separately the
case of deemed waivers from that of affirmative waivers.317
225. As to deemed waivers, the Panel observed that Section 351.218(d)(2)(iii) of the USDOC
Regulations provides:
(2) Waiver of response by a respondent interested party to a notice
of initiation—

(iii) No response from an interested party . The Secretary will
consider the failure by a respondent interested party to file a
complete substantive response to a notice of initiation under
paragraph (d)(3) of this section as a waiver of participation in a
sunset review before the Department.
Thus, participation of a respondent in a likelihood-of-dumping inquiry in a sunset review is deemed to
have been waived by it where the respondent files either an incomplete submission or no submission
at all.318
226. Section 751(c)(4)(B) of the Tariff Act of 1930 provides:
(B) Effect of waiver
In a review in which an interest ed party waives its participation
pursuant to this paragraph, the administering authority shall conclude
that revocation of the order or term ination of the investigation would
be likely to lead to continuati on or recurrence of dumping or a
countervailable subsidy (as the case may be) with respect to that
interested party.
Thus, any waiver, whether deemed or affirmative, automatically results in an affirmative likelihood
finding as to that exporter.
319
227. The Panel found that, where a respondent files an incomplete submission, these two
provisions of United States law, taken together—nam ely, Section 751(c)(4)(B) of the Tariff Act of
1930 and Section 351.218(d)(2)(iii) of the USDOC Regulations—require the USDOC to make an
affirmative determination of likelihood of continuation or recurrence of dumping, as to that
respondent, without "taking into consideration, in [that] determination ... , the facts submitted by that
exporter (or any other facts before it that might be relevant to its determination), and [without]

316Panel Report, para. 7.72.
317Ibid., para. 7.90.
318Ibid., para. 7.91.
319Ibid.

receiving, much less considering, any other facts relevant to this question". 320 In the case where a
respondent files no submission at all, the Panel found that these United States provisions direct the
USDOC to make an affirmative likelihood-of-dumping determination as to that respondent solely on
the basis that the respondent filed no submission, without consideration of other evidence on
record.321 Both of these "deemed waiver" situations, acco rding to the Panel, are inconsistent with the
obligation in Article 11.3 for an investigating au thority to arrive at a likelihood determination
"supported by reasoned and adequa te conclusions based on the facts before an investigating
authority".322
228. As to affirmative waivers, the Panel observe d that under Section 751(c)(4)(B) of the Tariff
Act of 1930, the USDOC must make an affirma tive likelihood determination when a respondent
declares its intention not to participate in a sunset review. 323 The Panel was of the view that an
investigating authority "can not simply assume, without further inquiry, that dumping is likely to
continue or recur because the exporter c hose not to participate in the review." 324 Accordingly, the
Panel concluded, with respect to affirmative waivers, as it did with respect to deemed waivers, that
Section 751(c)(4)(B) is inconsistent with Article 11.3.325
229. Finally, the Panel addressed the relevance of the fact that the USDOC's likelihood-of-
dumping determinations are made on an "order-wide" 326 rather than "company-specific"327 basis. The
United States argued that, where respondents have wa ived the right to partic ipate, the USDOC makes
company-specific determinations only as a first step in its analysis, but that the ultimate likelihood-of-
dumping determination, made as a second step, is on an order-wide basis. The order-wide
determination is based on all the evidence in the r ecord. As a result, the United States claimed, "the
waiver provisions do not violate Article 11.3 of the Agreement because they do not determine, in and
of themselves, the final outcome of a sunset review ; they only determine the outcome of the first

320Panel Report, para. 7.93.
321Ibid., para. 7.95.
322Ibid., paras. 7.93 and 7.95.
323Ibid., para. 7.96.
324Ibid., para. 7.99.
325Ibid.
326When speaking of an "order-wide likelihood determination", we understand the United States to
refer to the single determination of likelihood of continuation or recurrence of dumping made by the USDOC
with respect to all exporters from a country that is the subject of an anti-dumping duty "order" under United
States law. The order-wide determination thus applies to an exporting country as a whole.
327We use the term "company-specific likelihood determination", in contrast to "order-wide likelihood
determination", to refer to the determination of likelihood of continuation or recurrence of dumping made by the
USDOC with respect to an individual respondent in a sunset review.

step."
 328 The Panel disagreed, finding that, "[t]o the extent that the order-wide determination of
likelihood is based in whole or in part upon a co mpany-specific determination that was improperly
established", the order-wide determination cannot satis fy the requirements of Article 11.3 that the
determination "be supported by reasoned and adequa te conclusions based on the facts before the
investigating authority".329
230. On appeal, the United States challenges the Pa nel's finding that the waiver provisions are
inconsistent, as such, with Article 11.3 of the Anti-Dumping Agreement. The United States contends
that, as its likelihood-of-dumping dete rminations are made on an orde r-wide basis, a proper inquiry
into Argentina's claim requires an examination of whether the waiver provisions prevent the USDOC
from arriving at an order-wide likelihood determinati on consistent with Article 11.3. In the United
States' view, the Panel erred by evaluating whether the company-specific determinations resulting
from the operation of the waiver provisions were cons istent with Article 11.3 and then "imput[ing]"
that finding of inconsistency to order-wide determinations made by the USDOC. 330 The United
States acknowledges that its waiver procedure result s in an affirmative likelihood determination for
the non-participating respondent, but emphasizes that such a company-specific determination does not
automatically lead to a final affirmativ e order-wide determina tion under Article 11.3. 331 Instead, the
United States submits, its law requires the USDOC to base its order-wide likelihood determination on
the totality of record evidence, which satisfies th e requirement of a sufficient basis for the final
determination, notwithstanding the company-specific determinations made as a result of the waiver
provisions. Therefore, the United States argues, the USDOC is not precluded from arriving at a
likelihood-of-dumping determination that is consistent with the requirements of Article 11.3.
231. We recall, at the outset, that, in US – Corrosion-Resistant Steel Sunset Review , the Appellate
Body found that Members are not required by Article 11.3 to make their likelihood-of-dumping
determinations on a company-specific basis, and th erefore, that Section II.A.3 of the SPB is not
inconsistent with Article 11.3 on the ground that it requires the USDOC to make its sunset review
determinations on an order-wide basis. 332 Thus, as the United States 333 and the European
Communities 334 correctly observe, because the United States has chosen to make order-wide
determinations in sunset reviews, an allegation that a measure prevents the United States from making

328Panel Report, para. 7.100. (footnote omitted)
329Ibid., para. 7.101.
331Ibid., para. 41.
332Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, paras. 149-157.
334European Communities' third participant's submission, para. 35.

a likelihood determination consiste nt with Article 11.3 must be evaluated by reference to the
relevance of that measure for the order-wide determination.
232. In this case, the Panel began its analysis of Argentina's claim by focusing on the company-
specific likelihood determinations. 335 The Panel found that these affirmative company-specific
determinations are mandated by th e waiver provisions without any further inquiry on the part of the
USDOC and without regard to the record evid ence—whether that evidence is submitted by the
respondent or by another interested party. 336 The Panel then concluded, on this basis, that the waiver
provisions are inconsistent, as such, with Article 11.3. 337 In our view, it was neither necessary nor
relevant for the Panel to draw a conclusion as to the WTO-consistency of the company-
specific determinations resulting from the waiver provisi ons. As we have observed, the relevant
inquiry in this dispute is whether the order-wide likelihood determina tion would be rendered
inconsistent with Article 11.3 by virtue of the ope ration of the waiver provisions. It appears to us,
therefore, that the Panel could not have properly a rrived at a finding of consistency or inconsistency
with Article 11.3 until it had examined how the operation of the waiver provisions could affect the
order-wide determination. Had the Panel ceased its inquiry with the finding that the company-specific
determinations are not "supported by reasoned and ade quate conclusions based on the facts before an
investigating authority" 338, the Panel would not have had a ba sis to conclude that the waiver
provisions are inconsistent, as such, with Article 11.3.
233. The Panel, however, did not base its ultimate conclusion of inconsistency with Article 11.3 on
its assessment of only the company-specific determinations made pursuant to the waiver provisions.
Instead, the Panel correctly continued its analysis and examined the impact of the company-specific
determinations on the order-wide determination. The Panel observed that, in the case where the
respondent that waives its right to participate is the sole exporter from a country subject to a dumping
order, the company-specific determination "is likely to be conclusive" with respect to the order-wide
determination.339 The Panel also noted that "[t]he Un ited States concedes that company-specific

335Panel Report, paras. 7.90-7.99.
336Ibid., paras. 7.93, 7.95, and 7.99.
337Ibid., para. 7.93 ("In our view, this can not be a determination supported by reasoned and adequate
conclusions based on the facts before an investigating authority"); para. 7.95 ("In our view, an affirmative
determination based exclusively upon the fact that the exporter did not respond to a notice of initiation, and
which disregards entirely even the possibility that other relevant information might be in the record, is not
supported by reasoned and adequate conclusions based on the facts before an investigating authority,
inconsistently with Article 11.3"); and para. 7.99 ("In our view, therefore, the provi sions of US law relating to
affirmative waivers are also inconsistent with the obligation to determine likelihood of continuation or
recurrence of dumping under Article 11.3 of the Agreement").
338Ibid., paras. 7.93, 7.95, and 7.99.
339Ibid., para. 7.102.

likelihood determinations are 'considered' when making an order-wide likelihood determination".
340
As support for this statement, the Panel quoted th e United States' response to one of the Panel's
questions.341 In addition, the Panel recalled that, in response to questioning from the Panel, the United
States was unable to cite one example of a sunset review in which the USDOC had arrived at a
negative order-wide determination after making affirmative company-specific determinations with
respect to respondents that had waived the right to participate. 342 The Panel concluded that, "[t]o the
extent that" the company-specific determinati ons were taken into account in the order-wide
determination, the order-wide determination c ould not "be supported by reasoned and adequate
conclusions based on the facts before the investigating authority".343
234. We agree with the Panel's analysis of the impact of the waiver provisions on order-wide
determinations.344 Because the waiver provisions require the USDOC to arrive at affirmative
company-specific determinations without regard to any evidence on record, these determinations are
merely assumptions made by the agency, rather than findings supported by evidence. The United
States contends that respondents waiving the right to participate in a sunset review do so
"intentionally", with full knowledge that, as a result of their failure to subm it evidence, the evidence
placed on the record by the domestic industry is likel y to result in an unfavourable determination on
an order-wide basis.
345 In these circumstances, we see no fault in making an unfavourable order-wide
determination by taking into account evidence provide d by the domestic industry in support thereof.
However, the USDOC also takes into account, in such circumstances, statutorily-mandated
assumptions. Thus, even assuming that the USDOC takes into account the totality of record evidence

340Panel Report, para. 7.101 (quoting the United States' response to Question 4(b) posed by the Panel at
the Second Panel Meeting (Panel Report, Annex E, p. E-93, para. 3)).
341In response to questioning by the Panel, the United States said:
The United States has not argued that a waiver "does not affect" the final
order-wide likelihood determination. While the individual affirmative
likelihood determinations may affect the order-wide likelihood
determination, they do not determine, in and of themselves, the ultimate
outcome of the order-wide analysis. [The USDOC] considers all the
information on the administrative record, including prior agency
determinations and the information submitted by the interested parties or
collected by [the USDOC], as well as any individual affi rmative likelihood
determinations, when making the order-wide likelihood determination.
(Panel Report, footnote 42 to para. 7.101 (quoting the United States' response to Question 4(b) posed by the
Panel at the Second Panel Meeting (Panel Report, Annex E, p. E-93, para. 3)))
342Ibid., para. 7.102.
343Ibid., para. 7.101.
344The United States challenges the Panel's analysis of the relationship between company-specific and
order-wide determinations as inconsistent with the Pane l's obligation under Article 11 of the DSU. As we
discuss below in paragraphs 255-260, we find no error by the Panel in this regard.

in making its order-wide determination, it is clear that, as a result of the operation of the waiver
provisions, certain order-wide likelihood determinations made by the USDOC will be based, at least
in part, on statutorily-mandated assumptions about a company's likelihood of dumping. In our view,
this result is inconsistent with the obligation of an investigating authority under Article 11.3 to "arrive
at a reasoned conclusion" 346 on the basis of "positive evidence".347
235. Therefore, we uphold the Panel's findings, in paragraphs 7.103, 8.1(a)(i), and 8.1(a)(ii) of the
Panel Report, that Section 751(c)(4)(B) of the Tariff Act of 1930 and Section 351.218(d)(2)(iii) of the
USDOC Regulations are inconsistent, as such, with Article 11.3 of the Anti-Dumping Agreement.
B. Consistency of the "Deemed" Waiver Provis ion with Articles 6.1 and 6.2 of the Anti-
Dumping Agreement
236. Argentina claimed before the Panel that Section 351.218(d)(2)(iii) of the USDOC Regulations
is inconsistent, as such, with Articles 6.1 and 6.2 of the Anti-Dumping Agreement .348 (Argentina
made no claim under Articles 6.1 and 6.2 with respect to affirmative waivers under Section
751(c)(4)(B) of the Tariff Act of 1930. 349) In examining the deemed waiver provision, the Panel
observed that two factual situations might arise th rough the operation of this regulation: first, a
respondent may submit an incomplete response; and second, a respondent may submit nothing at
all.350 The Panel found that a submission by a respondent will not be considered by the USDOC to be
"complete" unless it contains all of the information set out in Section 351.218(d)(3) of the USDOC
Regulations.351 The Panel then determined that, under the first situation (that is, incomplete
response), the USDOC must conclude that, with respect to that respondent, there is a likelihood of
continuation or recurrence of dumping, and the USDO C must do so without any consideration of the
"incomplete" information submitted by the respondent. 352 The Panel also found that, under both
situations (that is, incomplete response and no r esponse), the respondent is precluded from submitting
evidence at a later date during the sunset review proceeding 353 and is not permitted to participate in
hearings or to confront adverse parties in any other manner.354

346Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 111.
347Ibid., para. 114 (quoting Panel Report, US – Corrosion-Resistant Steel Sunset Review, para. 7.271).
348Panel Report, para. 7.104.
349Ibid., para. 7.106.
350Ibid., para. 7.119.
352Ibid., paras. 7.92-7.93 and 7.121.
353Ibid., para. 7.121.
354Ibid.

237. The Panel concluded that the deemed waiver provision is inconsistent, as such, with
Articles 6.1 and 6.2, because no provision in the Anti-Dumping Agreement allows an investigating
authority to deny the procedural rights contained in Articles 6.1 and 6.2 solely on the basis that a
respondent files an incomplete submission, or no submission at all, in response to a notice of
initiation.
355 Finally, the Panel rejected the United Stat es' argument that the USDOC's consideration
of the information contained in a respondent's incomplete submission, when making an order-wide
determination, satisfies Article 6. 1. The Panel found instead that "the violations of Articles 6.1
and 6.2 at the company-specific level w ould necessarily taint the USDOC's order-wide
determination".356
238. On appeal, the United States argues that Section 351.218(d)(2)(iii) of the USDOC
Regulations does not address "the kind of informa tion that can be provided in a sunset review". 357 It
follows, in the view of the United States, that this provision cannot be found to be inconsistent with
Articles 6.1 and 6.2.358 The United States also observes that its regulations provide interested parties
with numerous opportunities to provide evidence to the agency. 359 In this regard, the United States
submits that an interested party that fails to take advantage of those opportunities should be
"accountable for its failure to exercise that right". 360 The United States asserts that the Panel appears
to have " assumed" that interested parties have an "indefi nite right" under Articles 6.1 and 6.2 to
present evidence and request a hearing. 361 The right under those provisions is not "indefinite", the
United States argues, and an interested party's "failure to exercise that right" cannot alter the fact that
the United States provides sufficient opportunity for an interested party to participate.362
239. We begin by recalling that the Appellate Body h as held previously that claims under Article 6
may be made in relation to sunset review determinations on the basis of the cross-reference to Article
6 found in Article 11.4.363

355Panel Report, paras. 7.122-7.123 and 7.127.
356Ibid., para. 7.125.
358Ibid.
359Ibid., paras. 53-54.
360Ibid., para. 55.
361Ibid. (original emphasis)
362Ibid.
363Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 152.

240. Article 6.1 of the Anti-Dumping Agreement provides:
All interested parties in an anti- dumping investigation shall be given
notice of the information which the authorities require and ample
opportunity to present in writing all evidence which they consider
relevant in respect of the investigation in question. (emphasis added)
Article 6.2 of the Anti-Dumping Agreement provides:
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
interested parties to meet those par ties with adverse interests, so that
opposing views may be presented and rebuttal arguments offered.
Provision of such opportunities must take account of the need to
preserve confidentiality and of the co nvenience to the parties. There
shall be no obligation on any party to attend a meeting, and failure to
do so shall not be prejudicial to that party's case. Interested parties
shall also have the right, on justif ication, to present other information
orally. (emphasis added)
241. These provisions set out the fundamental due process rights to which interested parties
are entitled in anti-dumping investigations and reviews.
364 Articles 6.1 and 6.2 require that the
opportunities afforded interested parties for presentati on of evidence and defence of their interests be
"ample" and "full", respectively. In the cont ext of these provisions, these two adjectives suggest
there should be liberal opportunities for respondent s to defend their interests. Nevertheless, we
agree with the United States that Articles 6.1 and 6.2 do not provide for "indefinite" rights 365, so as to
enable respondents to submit relevant evidence, at tend hearings, or participate in the inquiry as and
when they choose. Such an approach would "p revent the authorities of a Member from proceeding
expeditiously"366 in their reviews, contrary to Article 6.14. It would also affect the rights of other
interested parties. In this regard, we recall th at the Appellate Body has previously recognized the

364We are not faced here with the question of the consistency of th e deemed waiver provision with
Article 6.8 or Annex II of the Anti-Dumping Agreement. We therefore limit our discussion to the obligations
arising under Articles 6.1 and 6.2 of that Agreement.
366Anti-Dumping Agreement, Article 6.14.

importance for investigating authorities of establishing deadlines and controlling the conduct of their
investigations.
367
242. Therefore, the "ample" and "full" opportun ities guaranteed by Articles 6.1 and 6.2,
respectively, cannot extend indefinitely and must, at some point, legitimately cease to exist. 368 This
point must be determined by reference to the right of investigating authorities to rely on deadlines in
the conduct of their investigations and reviews. Where the continued granting of opportunities to
present evidence and attend hearings would impinge on an investigating authority's ability to "control
the conduct" of its inquiry and to "carry out the multiple steps" required to reach a timely completion
of the sunset review 369, a respondent will have reached the limit of the "ample" and "full"
opportunities provided for in Articles 6.1 and 6.2 of the Anti-Dumping Agreement.
243. We now examine the consistency of Section 351.218(d)(2)(iii) of the USDOC Regulations
with Articles 6.1 and 6.2, keeping in mind the need to balance respondents' rights and obligations with
those of investigating authorities and other interested parties. We set out again, for ease of reference,
the text of the deemed waiver provision:
(2) Waiver of response by a respondent interested party to a notice
of initiation—

(iii) No response from an interested party . The Secretary will
consider the failure by a respondent interested party to file a
complete substantive response to a notice of initiation under
paragraph (d)(3) of this section as a waiver of participation in a
sunset review before the Department.

367In US – Hot-Rolled Steel, the Appellate Body stated:
 Investigating authorities must be able to control the conduct of their
investigation and to carry out the multiple steps in an investigation required to
reach a final determination. Indeed, in the absence of tim e-limits, authorities
would effectively cede control of investigations to the interested parties, and
could find themselves unable to complete their investigations within the time-
limits mandated under the Anti-Dumping Agreement. ... We, therefore, agree
with the Panel that "in the interest of orderly administration investigating
authorities do, and indeed must establish such deadlines."
(Appellate Body Report, US – Hot-Rolled Steel , para. 73 (quoting Panel Report, US – Hot-Rolled Steel ,
para. 7.54)) (emphasis added by the Appellate Body)
368Argentina and the United States agree that, at some point, an investigating authority may limit the
rights set out in Articles 6.1 and 6.2 in order to enfor ce a deadline. (Argentina's and the United States' responses
to questioning at the oral hearing)
369Appellate Body Report, US – Hot-Rolled Steel , para. 73 (quoting Panel Report, US – Hot-Rolled
Steel, para. 7.54).

244. When evaluating this claim of Argentina, the Panel divided its analysis in two parts 370, the
first addressing deemed waivers resulting from incomplete submissions 371, and the second addressing
deemed waivers resulting from the absence of a submission. 372 We find this distinction useful and
adopt it for our discussion below.
245. We consider, first, whether the due process right s of Articles 6.1 and 6.2 are denied to those
respondents who file incomplete submissions in response to the USDOC notice of initiation. We
recall that the Panel found that the USDOC consider s submissions to be incomplete, for the purposes
of Section 351.218(d)(2)(iii) of the USDOC Regulations, where all of the requested information is
not contained in the respondent's submission. 373 An incomplete submission might contain relevant
evidence in support of the respondent's position, ye t fall short of the information required by the
USDOC Regulations in order to be considered "complete" by the USDOC. The Panel assumed
arguendo that, as the United States claimed, the USDOC uses this "incomplete" information in
making its order-wide sunset determination. 374 Nevertheless, the Panel found, and the United States
agrees on appeal 375, that "the USDOC is precluded from taking into consideration, in its
determination with respect to a given exporter , the facts submitted by that exporter [in an incomplete
response]".376 As the United States acknowledges 377, and as discussed above 378, the company-
specific determination is "consider[ed]" by th e USDOC when making its subsequent order-wide
evaluation and is relevant to, even if not determinative of, the outcome of the sunset review.
246. It is clear, therefore, that with respect to at least one part of the USDOC's analysis underlying
the order-wide determination, evidence "presented" by a respondent is disregarded and an
affirmative likelihood determinati on is made for that respondent. In our view, disregarding a
respondent's evidence in this manner is incompatible with the respondent's right, under Article 6.1, to
present evidence that it considers relevant in respect of the sunset review. The agency is clearly
notified of a respondent's interest in participating in the sunset review by virtue of the respondent

370Panel Report, para. 7.119.
371Ibid., paras. 7.122-7.126.
372Ibid., para. 7.127.
373Ibid., para. 7.84, and footnote 34 to para. 7.93. We note that the United States challenges this
finding of the Panel. We address this challenge infra, at paragraphs 261-267.
374Panel Report, para. 7.125.
375United States' response to questioning at the oral hearing.
376Panel Report, para. 7.93. (emphasis added)
377United States' appellant's submission, para. 61 (quoting United States' response to Question 4(b)
posed by the Panel at the Second Panel Meeting (Panel Report, Annex E, p. E-93, para. 3); and citing United
States' responses to questions posed by the Panel at the First Panel Meeting (Panel Report, Annex E, pp. E-18
and E-43, paras. 3, 20, 24, and 29)).
378Supra, paras. 233-234.

having filed a response—albeit an incomplete one. Moreover, the respondent will also be denied any
opportunity to confront parties with adverse interest s in a hearing, notwithstanding this respondent's
clear expression of interest in participating in the s unset review. As a result, this respondent is denied
its rights, pursuant to Article 6.2, to the "full opportunity for the defence of [its] interests". The
United States claims that the USDOC "takes all record evidence into account, including evidence in
incomplete submissions, when maki ng the order-wide determination".
379 This does not alter the fact
that evidence in incomplete submissions is disr egarded in the course of the USDOC's analysis,
namely, when making company-specific determinations, thereby denying respondents their rights
under Articles 6.1 and 6.2.
247. We acknowledge the United States' argument before the Panel and on appeal that the USDOC
has discretion to treat incomplete submissions as a "complete substantive response".
380 The United
States contends that such discretion exists notw ithstanding the requirement in Section 351.218(d)(3)
of the USDOC Regulations that a respondent's su bmission contain certain prescribed information. 381
However, as discussed below in our analysis of the United States' claim under Article 11 of the
DSU 382, it appears that this discretion may be exercised only in limited circumstances and, therefore,
does not permit the USDOC, in all cases, to avoid acting inconsistently with the United States' WTO
obligations. We therefore agree with the Pa nel that Section 351.218(d)(2)(iii) of the USDOC
Regulations is inconsistent, as such, with Articles 6.1 and 6.2 of the Anti-Dumping Agreement , in
respect of the first factual situation, namely, deemed waivers resulting from the filing of an
incomplete submission in response to the USDOC notice of initiation.
248. We now turn to evaluate whether those respondents that do not respond at all to the USDOC
notice of initiation are also denied opportuniti es guaranteed by Articles 6.1 and 6.2. These
respondents will also face automatic affirmative company-specific determinations, be precluded from
submitting evidence in the remainder of the sunset proceeding, and not be allowed a hearing with
adverse parties. Unlike the case of respondents who file incomplete submissions, however, there will
be no evidence submitted by that respondent that th e USDOC would disregard. Thus, the sole basis
on which such respondents may claim a denial of righ ts under Articles 6.1 and 6.2 is the denial of the
opportunity to participate in later stages of the pro ceeding, including the right to request a hearing and
submit evidence subsequent to the filing deadline of the initial submission.

380Ibid., para. 71.
381Ibid., para. 74.
382Infra, paras. 265-269.

249. In this case, the claim under Article 6 centres on the initiation stage of the proceeding.383 In
our view, an investigating authority may have at the initiation stage particular concerns about
enforcing its deadline for receiving notifications of a respondent's interest in participating. The
submissions filed by respondents and domestic interested parties frame the scope of the sunset review
for the investigating authority. These submissions inform the agency as to the extent of the issues and
company-specific data that may need to be inv estigated and adjudicated upon in the course of the
sunset review. To this end, we recall the observation of the Appellate Body in US – Corrosion-
Resistant Steel Sunset Review:
[T]he Anti-Dumping Agreement assigns a prominent role to
interested parties as well and contemplates that they will be a
primary source of information in all proceedings conducted under
that agreement. Company-specific data relevant to a likelihood
determination under Article 11.3 can often be provided only by the
companies themselves. For example, as the United States points out,
it is the exporters or producers themselves who often possess the best
evidence of their likely future pricing behaviour—a key element in
the likelihood of future dumping.
384
Thus, the initial submissions enable an investigati ng authority to conduct sunset reviews in a fair and
orderly manner.
250. Respondents' initial submissions also serve to in form other interested parties of the critical
issues in dispute in the sunset review. Particular ly where company-specific behaviour is relevant to
the final likelihood-of-dumping determination—for exam ple, in respect of an individual respondent's
dumping margins and volume and value of exports —respondents' submissions may provide factual
information necessary for other interested parties to defend their interests adequately before the
agency. In this regard, we observe that the US DOC Regulations require re spondents to include in
their initial submissions, inter alia, data on the volume and value of exports of the subject
merchandise to the United States.385 Because respondents' initial submissions effectively contribute to
establishing the parameters of the sunset review—for the investigating authority as well as for other
interested parties—the investigating authority has a significant interest in requiring respondents to
comply with the deadline for notification of inter est in participating at the initial stage of the
proceeding.

383Previous Appellate Body Reports have addressed Artic le 6 challenges in the context of later stages
of the relevant anti-dumping proceed ing. See Appellate Body Report, US – Hot-Rolled Steel , paras. 64-68;
Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , paras. 116-117 and 134-135; and Appellate
Body Report, EC – Tube or Pipe Fittings, paras. 119 and 142.
384Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 199.
385USDOC Regulations, Section 351.218(d)(3)(iii).

251. Under the legal regime governing sunset revi ews in the United States, the investigating
authority, at the beginning of the sunset review , publicly informs all interested parties—including
domestic interested parties and r espondents—that they must file a submission by a certain date.
386
Argentina has not alleged that the d eadline set for these submissions is per se unreasonable. 387
Moreover, we note that there is no allegation that respondents are not made aware of the requirement
to make an initial submission, of the content of th at submission, or of the consequences for failing to
file a submission at all.
252. In our view, the rights to present evidence and re quest a hearing cannot be said to be "denied"
to a respondent that is given an opportunity to submit an initial response to the notice of initiation
simply because it must do so by a deadline that is conceded to be reasonable. We do not see it as an
unreasonable burden on respondents to require them to file a timely submission in order to preserve
their rights for the remainder of the sunset review. Indeed, even an incomplete submission will serve
to preserve those rights. 388 Accordingly, we are of the view that, if a respondent decides not to
undertake the necessary initial steps to avail itself of the "ample" and "full" opportunities available for
the defence of its interests, the fault lies with the respondent, and not w ith the deemed waiver
provision.
253. Therefore, with respect to respondents that file incomplete submissions in response to the
USDOC's notice of initiation of a sunset review, we uphold the Panel's findings, in paragraphs 7.128
and 8.1(a)(iii) of the Panel Report, that Secti on 351.218(d)(2)(iii) of the USDOC Regulations is
inconsistent, as such, with Articles 6.1 and 6.2 of the Anti-Dumping Agreement . However, with
respect to respondents that file no submission in response to the USDOC's notice of initiation, we do
not agree with the Panel that the failure to accord those respondents the rights detailed in Articles 6.1
and 6.2 renders the deemed waiver provision inconsistent, as such, with those provisions.
C. Article 11 Claims Relating to the Panel's Findings on Waivers
254. The United States advances two sets of claims under Article 11 of the DSU with respect to the
Panel's evaluation of the United States' waiver provi sions. The first relates to the conclusion drawn
by the Panel as to the consistency of the USDOC's order-wide likelihood determinations with

386Panel Report, para. 7.84.
387We note that Section 351.218(d)(3)(i) of the USDOC Regulations provides:
A complete substantive response to a notice of initiation, filed under this
section, must be submitted to the Department not later than 30 days after the
date of publication in the F EDERAL REGISTER of the notice of initiation.
(emphasis added)
388See supra, para. 246.

Article 11.3, based on the Panel' s consideration of the USDOC's company-specific likelihood
determinations. The second relates to the Panel' s evaluation of the manner in which the USDOC
determines the "completeness" of a respondent's submission under Section 351.218(d)(2)(iii) of the
USDOC Regulations.
1. Company-Specific and Order-Wide Likelihood Determinations
255. As to the first set of claims, the United States argues that Argentina failed to establish, as
part of its prima facie case, that the USDOC relies on company-specific likelihood determinations
when making its order-wide likelihood determination.389 According to the United States, Argentina's
argument before the Panel was limited to the alleged inconsistency of the company-specific
determinations, resulting from the operation of the waiver provisions, with Article 11.3. 390 Because
Argentina did not submit evidence in support of the connection between company-specific and order-
wide determinations, the United States argues that the Panel had no basis to draw a conclusion as to
the consistency of the order-wide determinations with Article 11.3.
391
256. The United States further submits that, even if a prima facie case had been established, "the
Panel made erroneous findings of fact regardi ng the relationship under U.S. law between company-
specific and order-wide determinations in sunset reviews." 392 The United States argues that the
record evidence does not support the Panel's conclu sion that the USDOC's order-wide determinations
are "based on" 393 the company-specific determinations. The United States refers to its statements
before the Panel that the company-specific determina tions are only one factor considered in the final
order-wide determination, that is, that company-spec ific determinations are not determinative of the
order-wide determination.394 Because the Panel erroneously assumed that United States law required
the USDOC to base its order-wide determination on a company-specific determination, in the absence
of evidence to that effect, the United States claims th e Panel failed to fulfil its obligations under
Article 11 of the DSU.
257. The Appellate Body has defined a prima facie case as "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

389United States' response to questioning at the oral hearing.
390Ibid.
391Ibid.
393Ibid., para. 59.
394Ibid., para. 60.

complaining party presenting the prima facie case".
 395 As to what would constitute a prima facie
case, the Appellate Body has observed that "the natu re and scope of evidence required to es tablish a
prima facie case 'will necessarily vary from measure to measure, provision to provision, and case to
case' ".396 Specifically, as to the nature of the burde n placed on complaining parties when challenging
measures "as such", the Appellate Body has stated that those parties are required to present evidence as
to the scope and meaning of the challenged measure, including, for example, the text of the measure
supported by evidence of its consistent application.
397
258. In this dispute, with respect to the waiver provisions, Argentina was required to make out a
prima facie case that the operation of Section 751(c)(4)(B ) of the Tariff Act of 1930 and Section
351.218(d)(2)(iii) of the USDOC Regulations results in order-wide determinations that do not satisfy
the requirements of Article 11.3. 398 Thus, to the extent that Ar gentina had shown that company-
specific determinations were based on assumpti ons rather than evidence, as discussed above 399, the
burden on Argentina was then to show—with ev idence to substantiate its claim—how these
affirmative company-specific determinations affected the order-wide determinations of the USDOC.
259. Argentina points to various portions of its wr itten submissions and opening statements before
the Panel in support of its assertion that it introduced evidence in support of a prima facie case that
the waiver provisions preclude th e USDOC from arriving at order-wid e determinations consistent
with Article 11.3.400 In its second written submission before the Panel, Argentina stated:
[I]n this case, the ultimate effect is the same whether waiver is
applied on a company-specific or order-wide basis. In this case, the
Department deemed the Argentina exporters to have waived, and thus
issued a determination that dumping was likely to continue or recur
pursuant to the waiver provisions. Therefore, waiver on the
company-level was equivalent to waiver on an order-wide basis
because the Department deemed the companies accounting for 100
percent of the alleged exports to have waived participation.
…

395Appellate Body Report, EC – Hormones , para. 104. See also Appellate Body Report, Canada –
Aircraft, para. 192: "A prima facie case, it is well to remember, is a case 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."
396Appellate Body Report, Japan – Apples , para. 159 (quoting Appellate Body Report, US – Wool
Shirts and Blouses, p. 14, DSR1997:I, 323 at 335).
397Appellate Body Report, US – Carbon Steel, para. 157.
398Supra, para. 231.
399Supra, para. 234.
400Argentina's response to questioning at the oral hearing.

The sunset review of antifriction bearings from Sweden illustrates the
"efficient" use of the waiver provisions and highlights the direct
conflict with Article 11.3 – where there is no review, no analysis, and
no determination by the Department. In that case the Department
stated, "given that … respondent in terested parties have waived their
right to participate in this review before the Department, we
determine that dumping is likely to continue if the orders were
revoked."
401
Thus, the Panel had before it the USDOC's determina tions in the underlying sunset review on OCTG
from Argentina and in the sunset review on antifriction bearings from Sweden. 402 In our view, this
would have permitted the Pa nel to conclude that Argentina had met its prima facie obligation to
show that company-specific determinations are cons idered by the USDOC in the course of making its
order-wide determinations.
260. With respect to the Panel's factual finding regarding the relations hip between order-wide
likelihood determinations and company-specific de terminations, the United States alleges that the
Panel arrived at the incorrect conclusion that, under United States law, the former are "based on" 403 or
"dispositive of" 404 the latter. We do not agree with the United States' characterization of the Panel's
reasoning. As noted above 405, in explaining how company-specific determinations may be relevant to
order-wide determinations, the Panel accepted the poi nt of United States law that the United States
argued before it, which it repeated on appeal, that is, that company-specific determinations are
"consider[ed]" by the USDOC in the course of making its order-wide likelihood determinations. 406
We also explained earlier 407 that we found no error in the Panel's finding that company-specific
determinations are taken into account when making order-wide determinations—even if the company-
specific determinations were not determinative—and th at this is sufficient in this case to lead to a
conclusion of inconsistenc y with Article 11.3. It follows, th en, that we see no basis for the United
States' allegation that the Panel drew its c onclusions about company-specific and order-wide

401Argentina's second written submission to the Panel, paras. 43 and 47 (quoting Antifriction Bearings
from Sweden, United States Federal Register, Vol. 64, No. 213 (4 November 1999), p. 60282 (Tab 6 of Exhibit
ARG-63 submitted by Argentina to the Panel), at pp. 60282 and 60284.
402See Issues and Decision Memorandum for the Expedited Sunset Reviews of the Antidumping Duty
Orders on Oil Country Tubular Goods from Argentina, Italy, Japan, and Korea; Final Results, 31 October 2000
(Exhibit ARG-51 submitted by Argentina to the Panel), p. 6; and Antifriction Bearings from Sweden, United
States Federal Register, Vol. 64, No. 213 (4 November 1999), p. 60282 (Tab 6 of Exhibit ARG-63 submitted by
Argentina to the Panel), at pp. 60282 and 60284.
403United States' appellant's submission, paras. 59 and 61.
404Ibid., para. 61.
405Supra, para. 233.
406See United States' appellant's submission, para. 61 (quoting the United States' response to Question
4(b) posed by the Panel at the Second Panel Meeting (Panel Report, Annex E, p. E-93, para. 3)).
407Supra, para. 234.

determinations in a manner contrary to evidence on the record. We therefore see no merit in this
aspect of the United States' Article 11 claim.
2. The USDOC's Decision as to Whether a Submission Constitutes a "Complete
Substantive Response"
261. Turning to the United States' second set of claims under Article 11 of the DSU with respect to
the waiver provisions, the United States argu es that Argentina failed to make out a prima facie case
that Section 751(c)(4)(B) of the Tariff Act of 1930 and Section 351.218(d)(2)(iii) of the USDOC
Regulations are inconsistent, as such, with Article 11.3, and that Section 351.218(d)(2)(iii) of the
USDOC Regulations is inconsistent, as such, with Articles 6.1 and 6.2. In the view of the
United States, Argentina failed to meet its bur den in this case because Argentina offered only
one determination of the USDOC as evidence of the meaning of how the USDOC determines
whether a respondent's submission constitutes a "complete substantive response" under Section
351.218(d)(2)(iii) of the USDOC Regulations.
408 The United States submits that, by relying on this
one determination to derive the meaning of the wa iver provisions, the Panel "reliev[ed] Argentina of
its burden to make a prima facie case".409
262. The United States argues further that, even if Argentina made a prima facie case as to the
meaning of "complete substantive response", the Pa nel erred in finding that the USDOC considers a
submission "complete", for purposes of Section 351.218(d)(2)(iii) of the USDOC Regulations, only
when it contains all of the information specified in Section 351.218(d)(3). 410 The United States
submits that the Panel came to this understanding on the basis of an alleged "practice" of the
USDOC.411 Argentina provided only one determina tion as evidence of this point, which is
insufficient, according to the United States, to constitute a "practice". 412 The United States submits
that the one sunset review determination proffere d by Argentina cannot form the basis for the Panel's
understanding of what the USDOC considers a "c omplete" response, because one determination
"cannot serve as conclusive evidence of [USDOC ] practice, let alone the true meaning of the
measures at issue". 413 In addition, the United States argue s that the Panel "disregard[ed]" and
"willfully ignor[ed]" relevant evidence submitted by the United States on this point, as a result of

409Ibid., para. 79.
410Ibid., para. 67.
412Ibid.
413Ibid., para. 78.

which the Panel came to a misunderstanding of Un ited States law and acted inconsistently with
Article 11 of the DSU.414
263. In our view, the United States mischaracteri zes what is required to make out a prima facie
case. As the Appellate Body indicated in US – Carbon Steel , the obligation to make out a prima
facie case may be satisfied in certain cases simply by submitting the text of the measure or,
particularly where the text may be unclear, with supporting materials. 415 Before the Panel, Argentina
submitted the text of Section 751 of the Tari ff Act of 1930 and Section 351.218 of the USDOC
Regulations.416 Included in these texts is Section 351.218(d)(3)(ii) and (iii) of the USDOC
Regulations, which sets out the "[r]equired informati on to be filed [by respondents in a] substantive
response to a notice of initiation". We understand the Panel to have examined the provisions of
United States law submitted by Argentina, and to have determined that these provisions speak for
themselves and set out with sufficient clarity enough aspects of the waiver provisions for the Panel to
have drawn its conclusions as to their operation.
264. In addition to the texts of the challenged provi sions, Argentina discussed before the Panel one
determination, as the United States acknowledges 417, where the USDOC concluded that the
respondent had not filed a "complete substantive response". 418 The USDOC stated the following in
that determination:
Duferco's and FAFER's responses were in complete because they did
not provide the Department the in formation required of respondent
interested parties in a sunset review. As such, the Department could
not determine whether the respondents' five year average percentage
of exports to the U.S. vis-a-vis the total exports of the subject
merchandise, during the relevant period, was above or below the
normal 50 percent threshold requirement for conduct of a full sunset
review. Therefore, [o]n October 21, 1999, pursuant to 19 CFR
351.218(e)(1)(ii)(A), the Departme nt determined to conduct an
expedited (120-day) sunset review of this order.

415Appellate Body Report, US – Carbon Steel, para. 157.
416See Sections 751 and 752 of the Tariff Act of 1930 (Exhibit ARG-1 submitted by Argentina to the
Panel); and Section 351.218 of the USDOC Regulations (Exhibit ARG-3 submitted by Argentina to the Panel).
418Argentina's second written submission to the Panel, footnote 68 to para. 48 (discussing, inter alia,
the USDOC's sunset review determination in Cu t-to-Length Carbon Steel Plate from Belgium, United States
Federal Register, Vol. 65, No. 68 (7 April 2000), p. 18292 (Tab 82 of Exhibit ARG-63 submitted by Argentina
to the Panel).

In addition to consideration of the guidance on likelihood cited
above, section 751(c)(4)(B) of the Act provides that the Department
shall determine that revocation of an order is likely to lead to
continuation or recurrence of dumping where a respondent interested
party waives its participation in the sunset review. In the instant
review, the Department did not receive an adequate response from
any respondent interested party . Pursuant to section 351.21
8(d)(2)(iii) of the Sunset Regulations, this constitutes a waiver of
participation.
419 (emphasis added; footnote omitted)
Together with the text of Section 351.218(d)(2)(iii), this one example provides support for Argentina's
understanding of how the USDOC determines whether a response is not "complete" so as to consider
the respondent to have waived participation in the su nset review. Therefore, the Panel did not "take it
upon itself" to make out Argentina's prima facie case by agreeing with Argentina's understanding of
the "completeness" standard in Section 351.218(d)(2)(iii) of the USDOC Regulations.420
265. The United States' more fundamental claim on this issue appears to be its disagreement with
the conclusion the Panel drew from this evidence. The United States refers to answers it provided in
response to the Panel's questions, in which the United States explained that the USDOC does not
automatically reject incomplete submission, but in fact has the " flexibility" 421 to grant respondents
more time to complete their submission or to accept a submission that did not contain all the requested
information.422 In these answers, the United States referred to the Preamble to its regulations
governing sunset reviews as the basis for this "fle xibility". The relevant portion of the Preamble
provides:
A complete substantive response is one which contains all of the
information required under [Section 351.218(d)(3)]. The Department
may consider a substantive response that does not contain all of the
information required under [Section 351.218(d)(3)] to be complete
where a party is unable to report certain required information and
provides a reasonable explanation as to why it is unable to provide
such information.
423

419Issues and Decision Memo for the Expedited Sunset Review of the Antidumping Order on Cut-to-
Length Carbon Steel Plate from Belgium, 29 March 2000 (Tab 82 of Exhibit ARG-63 submitted by Argentina to
the Panel), pp. 2-3 and 5.
421Ibid., para. 71. (original emphasis)
422Ibid., paras. 68-74.
423Procedures for Conducting Five-year ("Sunset") Reviews of Antidumping and Countervailing Duty
Orders, United States Federal Register, Vol. 63, No. 54 (20 March 1998), p. 13516 (Exhibit US-3 submitted by
the United States to the Panel), Preamble, at p. 13518.

The United States also cited Section 351.302(b) of the USDOC Regulations as authorizing the
USDOC to extend deadlines "for good cause":
Unless expressly precluded by statute, the Secretary may, for good
cause, extend any time limit established by [Section 351 of the
USDOC Regulations].424
266. The United States argues on appeal that these ex planations were "ignored" by the Panel,
which made its decision "contrary to the evidence" before it. 425 As the United States acknowledges,
however, the Panel posed a question on this issue in it s first set of questions to the United States, and
then followed up with a question in the second set of questions to the United States, based explicitly
on the response the United States had provided previously.426
267. Moreover, we are of the view that the Pane l did not find the United States' explanations
relevant to its reasoning. As discussed above , the Panel based its conclusion as to the WTO-
consistency of the waiver provisions on the fact th at they require the USDOC to rely, in part, on
unfounded company-specific likelihood determinations 427, and to deny due process rights to
respondents that failed to file a "complete substantive response". 428 Thus, although the USDOC may
be able to accept incomplete submissions in certain circumstances, thee provisions cited by the United
States do not permit the USDOC to avoid, in all cases, applying the waiver provisions in a WTO-
inconsistent manner.
268. First, as the United States acknowledged before the Panel and on appeal 429, the Preamble to
the sunset review regulations allows the USDOC to treat an incomplete submission as "complete"
only "where that interested party is unable to report the required information and provides [an]
explanation" for such inability. 430 Thus, if a respondent is cons idered by the USDOC as being able
to file all the required information, the Preamble does not appear to authorize the USDOC to treat that
respondent's incomplete submission as though it were "complete". Second, as the United States again

424USDOC Regulations, Section 351.302(b); cited in United States' appellant's submission, para. 41.
426Ibid., paras. 69-73 (quoting United States' responses to questions posed by the Panel at the First
Panel Meeting (Panel Report, Annex E, pp. E-18 and E-43, paras. 40-42); and United States' response to
Question 9 posed by the Panel at the Second Panel Meeting, (Panel Report, Annex E, pp. 96-97, paras. 12-13)).
427Supra, para. 233.
428Supra, paras. 236-237.
429United States' appellant's submission, para. 70 (quoting United States' response to Question 8 posed
by the Panel's at the First Panel Meeting (Panel Report, Annex E, pp. E-18 and E-43, para. 41 and footnote 33
thereto); in turn citing USDOC Regulations, Sectio n 351.218(d)(3) and Preamble to the USDOC's Sunset
Review Regulations, supra, footnote 423, p. 13518.
430United States' appellant's submission, para. 70 (quoting United States' response to Question 8 posed
by the Panel's at the First Panel Meeting (Panel Report, Annex E, pp. E-18 and E-43, footnote 33 to para. 41)).

acknowledged before the Panel and on appeal
 431, Section 351.302(b) of the USDOC Regulations only
permits the USDOC to extend the time limit for submission of substantive responses. The United
States does not contend that this provision allows the USDOC to consider a submission as "complete"
when it does not contain all of the information prescribed by Section 351.218(d)(3) of the USDOC
Regulations. Therefore, the USDOC will still be pr ecluded from treating the incomplete submissions
as "complete" when they fall outside the ambit of the Preamble. Nor will the USDOC be entitled to
treat incomplete submissions as "complete" by virtue of Section 351.302(b).
269. As a result, in respect of respondents to wh ich those provisions cannot be applied, the
USDOC will continue to make automatically an affirmative company-specific determination and to
deny the rights afforded by Articles 6.1 and 6.2 of the Anti-Dumping Agreement . Viewed in this
light, the explanations and citations provided by the United States regarding the "completeness" of a
substantive response had no bearing upon the Panel's analysis. Accordingly, we see no error in the
Panel's reliance on the evidence submitted by Arge ntina and in its apparent understanding that the
evidence submitted by the United States was not relevant to the Panel's reasoning.
270. In the light of the above, we find that the Panel did not fail to "make an objective assessment
of the matter before it, including an objective ass essment of the facts of the case", as required by
Article 11 of the DSU, in ascertaining the rela tionship between company-specific and order-wide
determinations and in examining the basis on which the USDOC conclud es that a respondent's
submission constitutes a "complete substantive response".
VII. Factors to be Evaluated in a Likelihood-of-Injury Determination
271. We begin our analysis of Argentina's in jury-related claims on appeal by addressing
Argentina's claim that investigating authorities are re quired to consider certain specific factors in the
course of making likelihood-of-injury determinations.
272. Argentina raised before the Panel several claims of inconsistency with various provisions of
Article 3 of the Anti-Dumping Agreement with respect to the USITC's likelihood-of-injury
determination on OCTG from Argentina. The Panel commenced its analysis of these claims by
evaluating "the applicability of Article 3 in sunset reviews". 432 The Panel observed that neither
Article 3 nor Article 11.3 contains an explicit cross-reference to the other provision. Nevertheless, the

431United States' appellant's submission, para. 70 (quoting United States' response to Question 8 posed
by the Panel's at the First Panel Meeting (Panel Report, Annex E, pp. E-18 and E-43, para. 41 and footnote 33
thereto); in turn citing USDOC Regulations, Section 351.320(b)).
432Panel Report, para. 7.269.

Panel acknowledged that the text of Article 3, including Article 3.1 and footnote 9, "may suggest" that
the provisions of Article 3 "define the scope of injury determinations throughout the Agreement".433
273. Referring to the Appellate Body's decision in US – Corrosion-Resistant Steel Sunset Review ,
the Panel noted the differences in the nature of th e inquiries in original investigations and in
sunset reviews. The Panel distinguished betw een injury determinations and likelihood-of-injury
determinations. The Panel stated: "Just as the Appellate Body stated that an investigating authority is
not required to make a dumping determination in a s unset review, we consider that an investigating
authority is not required to make an in jury determination in a sunset review." 434 Having decided that
determinations of existing injury are not required in sunset reviews, the Panel concluded that the
obligations contained in the various paragraphs of Article 3 do not "normally" apply to sunset
reviews.435 However, the Panel found that, to the extent that an investigating authority relies on a
determination of injury when conducting a sunset re view, the obligations of Article 3 would apply to
that determination.
274. On appeal, Argentina argues, first, that Article 11.3, in and of itself , imposes "substantive
obligations" 436 on investigating authorities to make their sun set review determinations in a particular
manner, and that the Panel erred in failing to r ecognize the existence of these obligations. "In the
alternative"437, Argentina argues that the provisions of Article 3 apply to sunset reviews under
Article 11.3 because Article 3 deals with injury determinations for the entire Anti-Dumping
Agreement. We consider it useful to begin our analys is with Argentina's "alternative" argument,
before addressing the argument regarding the "substantive obligations" mandated by Article 11.3.
275. Argentina argues that, by virtue of footnote 9 of the Anti-Dumping Agreement 438, which sets
forth the definition of injury "under this Agreemen t", the term "injury" must have the same meaning
throughout the Anti-Dumping Agreement , including in the context of sunset reviews under

433Panel Report, para. 7.270.
434Ibid., para. 7.273 (citing Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review ,
para. 123).
435Ibid., para. 7.273.
436Argentina's other appellant's submission, p. 35, heading b.
437Ibid., para. 129.
438Footnote 9 of the Anti-Dumping Agreement provides:
Under 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 shall be interp reted in accordance with the provisions
of this Article.

Article 11.3.
439 Argentina notes that the definition of "injury" in footnote 9 provides that the term
"injury" "shall be interpreted in accordance with the provisions of [Article 3]". Based on this
language, Argentina claims that "any reference in the Agreement to 'injury', including a determination
of likelihood of continuation or recurrence of injury under Article 11.3, requires that such a
determination be made in conformity with the provisions of Article 3."
 440 Relying on the Appellate
Body Report in US – Corrosion-Resistant Steel Sunset Review , Argentina submits that the terms
"review" and "determine" in Article 11.3 contemplate "diligence and rigor" on the part of
investigating authorities 441, and preclude those authorities from arriving at a sunset review
determination in the absence of a "sufficient f actual basis" from which "reasoned and adequate
conclusions" may be drawn. 442 According to Argentina, it follo ws from these requirements that an
investigating authority, in its likelihood-of-i njury analysis, must consider "at a minimum" 443, the
following elements:
• ... [A]ny determination under Ar ticle 11.3 must be based on
positive evidence, and involve an objective examination of the
volume of dumped imports and the effect of the dumped imports
on prices, as well as the consequent impact of the imports on
domestic producers.
• An Article 11.3 review requires an examination of the impact of
the dumped imports on the domestic industry concerned, and
must include an evaluation of all relevant economic factors
having a bearing on the state of the industry….
• The requirement … to demonstrate a causal relationship between
the dumped imports and the injury to the domestic industry.
444
Argentina therefore requests the Appellate Body to reverse the Panel's finding that Article 3 does not
normally apply to a sunset review, and to "complete the analysis" under Article 3 by finding that the
USITC's determination is inconsistent with Article s 3.1, 3.2, 3.4, and 3.5 because of its improper
examination of "injury".445
276. At the outset, we would agree with Argentina that, by virtue of its opening phrase, footnote 9
defines "injury" for the whole of the Anti-Dumping Agreement. The United States also agrees that

439Argentina's other appellant's submission, paras. 132-135.
440Ibid., para. 147.
441Ibid., para. 138.
442Ibid., para. 139 (quoting Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review ,
para. 114).
443Ibid., para. 143.
444Ibid.
445Ibid., paras. 179 and 214.

this definition of "injury" is a pplicable throughout the Agreement. 446 Therefore, when Article 11.3
requires a determination as to the likelihood of continuation or recurrence of "injury",
the investigating authority must consider the con tinuation or recurrence of "injury" as defined in
footnote 9.
277. It does not follow, however, from this single definition of "injury", that all of the provisions
of Article 3 are applicable in their entirety to s unset review determinati ons under Article 11.3.
In arguing to the contrary, Ar gentina incorrectly equates the definition of "injury" with the
determination of "injury". Notwithstanding footnote 9, the paragraphs of Article 3 are not an
elaboration of the meaning of "injury". Rather , Article 3 lays down the steps involved and the
evidence to be examined fo r the purposes of making a determination of injury. This is evident from
the title of the Article ("Determination of Injury"). The focus of Article 3 on the determination of
injury, rather than on its definition, is confirmed in the French and Spanish versions of Article 3.1,
which translate "determination of injury", respectively, as " la détermination de l'existence d'un
278. Argentina submits that likelihood-of-injury determ inations are "determinations of injury" for
purposes of the Anti-Dumping Agreement . In our view, however, the Anti-Dumping Agreement
distinguishes between "determination[s] of injury", addressed in Article 3, and determinations of
likelihood of "continuation or recurrence ... of injury", addressed in Article 11.3. In addition, Article
11.3 does not contain any cross-reference to Article 3 to the effect that, in making the likelihood-of-
injury determination, all the provisions of Artic le 3—or any particular provisions of Article 3— must
be followed by investigating authorities. Nor does any provision of Article 3 indicate that, wherever
the term "injury" appears in the Anti-Dumping Agreement , a determination of injury must be made
following the provisions of Article 3.
279. The lack of a sufficient textual basis to apply Article 3 to likelihood-o f-injury determinations
is not surprising given "the different nature and purpose of original investigations, on the one hand,
and sunset reviews, on the other hand", which the Appellate Body emphasized in US – Corrosion-
Resistant Steel Sunset Review.448 Original investigations require an investigating authority, in order to
 impose an anti-dumping duty, to make a determinati on of the existence of dumping in accordance
with Article 2, and subsequently to determine, in accordance with Article 3, whether the domestic
industry is facing injury or a threat thereof at the time of the original investigation. In contrast,
Article 11.3 requires an investigating authority, in order to maintain an anti-dumping duty, to review

446United States' response to questioning at the oral hearing.
447French and Spanish versions of Article 3.1 of the Anti-Dumping Agreement. (underlining added)
448Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 124.

an anti-dumping duty order that has already been established—following the prerequisite
determinations of dumping and in jury—so as to determine whether th at order should be continued or
revoked.
280. Given the absence of textual cross-references, and given the different nature and purpose of
these two determinations, we are of the view that, fo r the "review" of a determination of injury that
has already been established in accordance with Article 3, Article 11.3 does not require that
injury again be determined in accordance with Article 3. We therefore conclude that investigating
authorities are not mandated to follow the provisions of Article 3 when making a likelihood-of-
injury determination.
281. Turning to the obligations under Article 11.3, we recall the following statement of the
Appellate Body in US – Corrosion-Resistant Steel Sunset Review:
Article 11.3 does not expressly prescribe any specific methodology
for investigating authorities to use in making a likelihood
determination in a sunset review. Nor does Article 11.3 identify any
particular factors that authorities must take into account in making
such a determination.
449
Although the Appellate Body made this statemen t in the context of a likelihood-of-dumping
determination, it applies equally with respect to a likelihood-of-injury determination.
282. Argentina does not contest the fact that the additional requirements it posits 450, which are
identical to the requirements contained in the paragra phs of Article 3, are not to be found explicitly in
the text of Article 11.3. Rather, Argentina deri ves these requirements from the terms "determination"
and "review" in Article 11.3. Argentina argues th at, given the implications of these terms discussed
above 451, the requirements it finds in Article 11.3 follow "logically" from the "rigorous, diligent
examination" to be undertaken by the investigating authority. 452 Argentina submits that permitting an
investigating authority to conduct a sunset re view without following these requirements would
undermine the very obligation to make a likelihood-of-injury "determination" in a "review" of the
anti-dumping duties.453

449Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 123.
450Supra, para. 275.
451Supra, paras. 179-180.
452Argentina's other appellant's submission, para. 143.
453Ibid.

283. The Appellate Body has concluded previously that the terms "determine" and "review" are
critical to understanding the obligations of an investigating authority in sunset reviews. 454 T h e
ordinary meanings of these terms necessitate a "reasoned conclusion on the basis of information
gathered as part of a process of reconsideration and examination". 455 As the Appellate Body stated in
US – Corrosion-Resistant Steel Sunset Review 456, however, the requirement for an investigating
authority to arrive at a "reasoned conclusion" as to the likelihood of continuation or recurrence of
injury does not have to be satisfied through a speci fic methodology or the consideration of particular
factors in every case. We are not persuaded by th e argument of Argentina that a likelihood-of-injury
determination can rest on a "sufficient factual basi s" and can be regarded as a "reasoned conclusion"
only after undertaking all the analyses detailed in the paragraphs of Article 3.
284. This is not to say, however, that in a sunset review determination, an investigating authority is
never required to examine any of the factors listed in the paragraphs of Article 3. Certain of the
analyses mandated by Article 3 and necessarily relevant in an original investigation may prove to be
probative, or possibly even required, in order for an investigating authority in a sunset review to arrive
at a "reasoned conclusion". In this respect, we are of the view that the fundamental requirement of
Article 3.1 that an injury determination be based on "positive evidence" and an "objective
examination" would be equally rele vant to likelihood determinations under Article 11.3. It seems to
us that factors such as the volume, price effects, and the impact on the domestic industry of dumped
imports, taking into account the conditions of comp etition, may be relevant to varying degrees in a
given likelihood-of-injury determination. An inv estigating authority may also, in its own judgement,
consider other factors contained in Article 3 when making a likelihood-of-injury determination. But
the necessity of conducting such an analysis in a given case results from the requirement imposed by
Article 11.3—not Article 3—that a likelihood-of-injury de termination rest on a "sufficient factual
basis" that allows the agency to draw "reasoned and adequate conclusions".
285. In the light of the above, we uphold the Panel's finding, in paragraph 7.273 of the Panel
Report, that the obligations set out in Article 3 do not apply to likelihood-of injury determinations in
sunset reviews. Consequently, we need not "complete the analysis" and make findings with respect
to Argentina's claims that the USITC acted inconsiste ntly with Articles 3.1, 3.2, 3.4, and 3.5 of the
Anti-Dumping Agreement. We also find that the Panel did not err in its interpretation of the term
"injury" in Article 11.3 of the Anti-Dumping Agreement, or in its analysis with respect to the factors
that an investigating authority is required to examine in a likelihood-of-injury determination.

454Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, paras. 110-112.
455Ibid., para. 111.
456Ibid., para. 123.

VIII. Cumulation in Sunset Reviews
286. We turn now to address Argentina's claim that the Panel erred in finding that the USITC's
cumulative analysis, made in the course of co nducting its likelihood de termination, was not
inconsistent with Articles 3.3 and 11.3 of the Anti-Dumping Agreement.
287. Argentina argued before the Panel that the Anti-Dumping Agreement authorizes investigating
authorities to engage in a cumulative analysis in orig inal investigations by virtue of Article 3.3, but
that no such authorization exists for sunset review s. As an alternative argument, Argentina submitted
that, if cumulation were permitted in sunset review s, investigating authorities must first satisfy the
conditions set out in Article 3.3(a) and (b). The United States argued that, as the Anti-Dumping
Agreement does not prohibit the use of cumulation, investigating authorities are permitted to engage
in a cumulative analysis in likelihood-of-injury determinations in sunset reviews. As to the conditions
set out in Article 3.3, the United States argued that they apply only in the context of original
investigations.
288. The Panel began its analysis by observing that Article 11.3 and Article 3.3 do not speak to
whether cumulation is permitted beyond the context of original investigations. In the Panel's view,
"the lack of a clear provision in the Agreement as to whether cumulation is generally allowed [means]
that cumulation is permitted in sunset reviews."
 457 In support of its understanding, the Panel stated
that the consistent use of the term "dumped imports " in the remainder of Article 3, without specifying
that such imports would originate from a single s ource, reflects the position that investigating
authorities would normally base injury determinations on imports from all investigated sources
cumulatively. The Panel rejected Argentina's ar gument that the use of the singular "duty" in
Article 11.3 indicates an intent not to authorize cu mulation in sunset reviews, finding the attribution
of such a "far-reaching substantive meaning" to the use of the singular as opposed to the plural term to
be implausible.
458 The Panel then found that cumulation, wh en used in sunset reviews, does not need
to satisfy the conditions of Article 3.3 because " by its own terms Article 3.3 limits its scope of
application to investigations". 459 As a result, the Panel found that the USITC's cumulative analysis in
the underlying sunset review determination was not inconsistent with Articles 3.3 and 11.3 of the
Anti-Dumping Agreement.460

457Panel Report, para. 7.332.
458Ibid., para. 7.334.
459Ibid., para. 7.336.
460Ibid., para. 7.338.

289. Argentina argues that the Panel erred: (1) in finding that cumulation is permitted in sunset
reviews; (2) in finding that the conditions set out in Article 3.3 for the use of cumulation do not need
to be satisfied in the context of sunset reviews; and (3) in dismissing Argentina's claim as to the
consistency of the USITC's recourse to cumulation with the "likelihood" standard in Article 11.3.
290. As to the first error, Argentina refers to th e use of the term "duty" in the singular in
Article 11.3 as evincing the intent of the treaty drafte rs to have sunset review determinations focus on
one anti-dumping measure applied to one source. Thus, according to Argentina, investigating
authorities are required to determine whether the expiry of each duty, as applied to imports from
individual Members, would lead to a continuation or recurrence of injury. 461 Furthermore, according
to Argentina, the rationale for permitting cumulati on in original investigations does not apply in
sunset reviews. Because investigating authorities in original investigations lo ok to evidence of past
behaviour, Argentina argues, they will have a "factual foundation" to examine relevant issues, such as
the conditions of competition among exporters from different sources, and thereby be able to
determine whether cumulation is appropriate. 462 In sunset reviews, Argentina submits, the changed
circumstances in the five years since the imposition of anti-dumping duties, and the prospective nature
of the inquiry, preclude an agency from having a factual basis to consider the appropriateness of
cumulation.463
291. With respect to the applicability of the prerequi sites in Article 3.3, Argentina argues that if
cumulation is permissible in sunset review s, the prerequisites "must equally apply". 464 In Argentina's
view, to conclude otherwise, as did the Panel, w ould permit investigating authorities to engage in a
cumulative analysis in sunset reviews without the "disciplines" Members negotiated during the
Uruguay Round.465 Finally, Argentina argues that the Panel erred in declining to address Argentina's
claim as to the consistency with Article 11.3 of th e USITC's use of cumulation. Argentina observes
that WTO obligations may apply on a "concurrent and overlapping basis" 466 and that, as such, the
Panel was incorrect in dismissing Argentina's Article 11.3 claim on the basis that it would create
"extra substantive obligations" in Article 3.3 for investigating authorities.467

461Argentina's other appellant's submission, paras. 257-260.
462See ibid., para. 265.
463Ibid., paras. 266-267.
464Ibid., para. 278.
465Ibid.
467Ibid. (quoting Panel Report, para. 7.337).

292. We begin our analysis by recalling that the text of Article 11.3 of the Anti-Dumping
Agreement makes no reference to cumulation or to Article 3.3.
468 Turning to Argentina's argument
regarding the use of the singular, "duty", as opposed to the plural, "duties", we observe that this
argument is premised on Argentina's understanding that the term "duty" in Article 11.3 refers to a
single anti-dumping measure imposed on one Member, whereas the term "duties" refers to multiple
anti-dumping measures imposed on more than one Member.
293. In our view, the Anti-Dumping Agreement does not ascribe to the singular and plural forms
of the word "duty" the significance claimed by Ar gentina. Even where a Member issues an anti-
dumping duty order applicable to products from one country, that order assigns separate duties to
individual exporters from that country. Duties also vary from country to country. In this respect, we
note, for example, the use of the term "duty", in the singular, in Article 9.2, which states, in part:
When an anti-dumping duty is imposed in respect of any product,
such anti-dumping duty shall be collected in the appropriate
amounts in each case, on a non-discriminatory basis on imports of
such product from all sources found to be dumped and causing
injury, except as to imports from those sources from which price
undertakings under the terms of this Agreement have been accepted.
(emphasis added)
Article 9.2 provides that a "duty", in the singular, can be "collected ... on imports of [the investigated
product] from all sources", although such duty may vary from source to source. It follows that a
"duty", in the singular—as used in Article 11.3—is not necessarily limited to a duty that is imposed
with respect to one Member only, but may also refer to duties imposed with respect to multiple
sources of the imported product. We are, therefore, of the view that the mere use of the term "duty",
in the singular, in Article 11.3 does not necessarily suggest that likelihood-of-injury determinations
must be made on a Member-by-Member basis.
294. We next examine "the only provision in the Anti-Dumping Agreement that specifically
addresses the practice of cumulation".
469 Article 3.3 provides:

468Supra, para. 177.
469Appellate Body Report, EC – Tube or Pipe Fittings, para. 108.

Where imports of a product from more than one country are
simultaneously subject to anti-dumping investigations, the
investigating authorities may cumu latively 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.
This provision plainly speaks to the situation "[ w]here imports of a product from more than one
country are simultaneously subject to anti-dumping investigations ". (emphasis added) It makes no
mention of injury analyses undertaken in any proceeding other than original investigations; nor do we
find a cross-reference to Article 11, the provisi on governing reviews of anti-dumping duties, which
itself makes no reference to cumulation. We theref ore find Articles 3.3 and 11.3, on their own, not to
be instructive on the question of the permissibility of cumulation in sunset reviews. The silence of the
text on this issue, however, cannot be understood to imply that cumulation is prohibited in sunset
reviews.
295. We recall that, in EC – Tube or Pipe Fittings , the Appellate Body discussed the "apparent
rationale" behind the practice of cumulation:
A cumulative analysis logically is premised 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 excl usively country-specific analysis
may not identify the causal relationship between the dumped imports
from those countries and the injury suffered by the domestic industry.
The outcome may then be that, b ecause 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. In our view,
therefore, by expressly providing for cumulation in Article 3.3 of the
Anti-Dumping Agreement, the negotiators appear to have recognized
that a domestic industry confronted with dumped imports originating
from several countries may be injure d by the cumulated effects of
those imports, and that those effects may not be adequately taken into
account in a country-specific analysis of the injurious effects of
dumped imports.470 (original italics; underlining added)

470Appellate Body Report, EC – Tube or Pipe Fittings, para. 116.

296. Although EC – Tube or Pipe Fittings concerned an original investigation, we are of the view
that this rationale is equally applicable to likeliho od-of-injury determinations in sunset reviews. Both
an original investigation and a sunset review must consider possible sources of injury: in an original
investigation, to determine whether to impos e anti-dumping duties on products from those sources,
and in a sunset review, to determin e whether anti-dumping duties should continue to be imposed on
products from those sources. Injury to the domestic industry—whether existing injury or likely
future injury—might come from several sources simulta neously, and the cumulative impact of those
imports would need to be analyzed for an injury determination.
297. Therefore, notwithstanding the differences be tween original investigations and sunset
reviews, cumulation remains a useful tool for inves tigating authorities in both inquiries to ensure that
all sources of injury and their cumulative impact on the domestic industry are taken into account in an
investigating authority's determination as to whether to impose—or continue to impose—anti-
dumping duties on products from those sources. Given the rationale for cumulation—a rationale that
we consider applies to original investigations as well as to sunset reviews—we are of the view that it
would be anomalous for Members to have lim ited authorization for cumulation in the Anti-Dumping
Agreement to original investigations.
298. Argentina argues, however, that a logical basi s exists for allowing cumulation in original
investigations, but not in sunset reviews. Argentina considers that an investigating authority in an
original investigation has a sufficient "factual foundation" to determine whether cumulation is
appropriate because those facts relate to the past and are therefore verifiable.
471 In contrast, Argentina
submits, the investigating authority in a sunset review will not have the facts to know whether
cumulation is appropriate because any such assessment—relating to future market conditions—will
be inherently speculative.
299. In our view, Argentina's distinction between th e factual bases in original investigations
and those in sunset reviews is without merit. A sunset review determination, although "forward-
looking"472, is to be based on existing facts as well as pr ojected facts. Even where the focus of the
inquiry is likely future injury, an investigating authority must have a "sufficient factual basis" to
arrive at its conclusion. 473 Therefore, it does not follow from the fact that sunset reviews evaluate
likelihood of injury that an investigating authority w ill not have an evidentiary basis for considering
whether cumulation is appropriate in a given case.

471Argentina's other appellant's submission, para. 265.
472Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 105.
473Ibid., para. 114 (quoting Panel Report, US – Corrosion-Resistant Steel Sunset Review, para. 7.271).

300. Given the express intention of Members to perm it cumulation in injury determinations in
original investigations, and given the rationale behind cumulation in injury determinations, we do not
read the Anti-Dumping Agreement as prohibiting cumulation in sunset reviews.
301. Turning to Argentina's argument that the prere quisites specified in Article 3.3(a) and (b)
should be satisfied by investigating authorities when performing cumulative analyses in sunset
reviews, we note that Argentina offers no textua l support for its claim. Indeed, as we observed
above 474, the opening text of Article 3.3 plainly limits its applicability to original investigations.
302. Argentina suggests that the following conse quences would arise if conditions were not
imposed on the resort to cumulation in sunset reviews:
To decide otherwise would vitiate the disciplines on cumulation
negotiated during the Uruguay Round and provide a carte blanche
to investigating authorities during sunset reviews – contrary to the
plain text, as well as the object and purposes, of Articles 3 and 11.
475
We disagree. As the Appellate Body has observed, a sunset review determ ination under Article 11.3
must be based on a "rigorous examination" 476 leading to a "reasoned conclusion". 477 S u c h a
determination must be supported by "positive evidence" 478 and a "sufficient factual basis". 479 These
requirements govern all aspects of an investigating authority's likelihood determination, including the
decision to resort to cumulation of the effects of likely dumped imports. As a result, Argentina's
concerns that investigating authorities will be given " carte blanche " to resort to cumulation when
making likelihood-of-injury determinations is unfounded. We, therefore, conclude that the conditions
of Article 3.3 do not apply to likelihood-of-injury determinations in sunset reviews.
303. Finally, Argentina submits that the Panel erred in dismissing Argentina's claim that the
USITC's recourse to cumulation was inconsistent with the "likely" standard of Article 11.3. 480 We
address this aspect of Argentina's cumulation-relate d claim under Article 11.3 in Section X.B of this
Report, in the context of addressing Argentina's othe r challenges to the standa rd of likelihood applied
by the USITC in its sunset review determination.

474Supra, para. 294.
475Argentina's other appellant's submission, para. 278.
476Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 113.
477Ibid., para. 111.
478Ibid., para. 114 (quoting Panel Report, US – Corrosion-Resistant Steel Sunset Review, para. 7.271).
479Ibid. (quoting Panel Report, US – Corrosion-Resistant Steel Sunset Review, para. 7.271).
480Panel Report, para. 7.337.

304. In the light of the above, we uphold the Panel's findings, in para graphs 7.335 to 7.337 of the
Panel Report, that Article 11.3 of the Anti-Dumping Agreement does not preclude investigating
authorities from cumulating the effects of likely dumped imports in the course of their likelihood-of-
injury determinations, and that the conditions of Article 3.3 of the Anti-Dumping Agreement do not
apply in the context of sunset reviews.
IX. The Panel's Interpretation of the Term "Likely"
305. We now turn to the issue whether the Panel made an error of interpretation regarding the term
"likely" in Article 11.3 of the Anti-Dumping Agreement.
306. The Panel stated the following with respect to Argentina's claims relating to the USITC's
determinations regarding the likely volume of dum ped imports, their likely price effects, and their
likely impact on the United States' domestic industry:
We note that the standard set out in Article 11.3 of the Agreement for
the investigating authorities' sunset determinations is "likely". This
standard applies to the likelihood of continuation or recurrence of
dumping as well as injury determin ations in sunset reviews, and this
is precisely the standard that the USITC applied . It seems to us that
the essence of Argentina's claim is not that the USITC applied the
wrong standard, but that it erred in determining that the likely
standard was met. Our task is to reach a decision on Argentina's
allegation that the USITC erred in the instant sunset review in the
application of the likely standard of Article 11.3.
481 (emphasis added)
307. Argentina argues that, in making this statement, the Panel made an error in its interpretation
of Article 11.3, as it did not interpret "likely" to mean "probable". 482 In support of its position that
"likely" means "probable", Argentina refe rs to the Appellate Body Report in US – Corrosion-
Resistant Steel Sunset Review, where it was stated that:
... an affirmative likelihood determination may be made only if the
evidence demonstrates that dumping would be probable if the duty
were terminated—and not simply if the evidence suggests that such
a result might be possible or plausible. 483
According to Argentina, the practice of the USITC "is not to apply a 'probable' standard". 484
Argentina argues that, by stating that the USITC app lied the "likely" standard set out in Article 11.3,

481Panel Report, para. 7.285.
482Argentina's other appellant's submission, para. 18.
483Ibid., para. 21 (quoting Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review ,
484Ibid., para. 34. (original underlining)

and that it was the correct standard to apply, the Pa nel failed to interpret "likely" to mean "probable"
and, thus, made an error of interpretation rega rding the "likely" standard under Article 11.3 of
the Anti-Dumping Agreement. Argentina emphasizes that the Panel erred in failing to consider the
USITC's statements before United States courts a nd before a NAFTA panel that the USITC did not
apply a "probable" standard.485
308. We agree with Argentina that, in US – Corrosion-Resistant Steel Sunset Review, the Appellate
Body equated "likely", as it is used in Article 11.3, with "probable". We also agree with Argentina
that this interpretation of "likely" as "probable" is authoritative in relation to injury as well, given that
the term "likely" in Article 11.3 applies equally to dumping and to injury. 486 The United States also
agrees that " 'probable' [is] synonymous with the statutory term 'likely'." 487 H o w e v e r , w e d o n o t
consider that the Panel, in its analysis, made an e rror of interpretation regarding the term "likely" in
Article 11.3 of the Anti-Dumping Agreement. We set out our reasons below.
309. The Panel stated that the standard set out in Artic le 11.3 is the "likely" standard; this is plain
from the text of the provision itself. Although the Panel did not elaborate with respect to the meaning
of "likely", or expressly state that "likely" mean s "probable", we see nothing in the Panel Report to
suggest that the Panel was of the view that "likely" does not mean "probable", or that "likely" means
"anything less than probable".
310. The Panel also stated that the USITC applied th e "likely" standard. The wording of the final
determination
 488, on its face, suggests that the USITC app lied the "likely" standard. The question
then remains whether the USITC actually applied that standard in the sunset review at issue. This
question, however, does not relate to the manner in which the Panel interpreted the term "likely" in
Article 11.3; rather, it concerns the Panel's re view of the basis on which the USITC made its
determination concerning injury, an issue we discuss separately in Section X of this Report.

485Argentina's other appellant's submission, paras. 29 and 34; Panel Report, para. 7.285.
486Ibid., paras. 21-22.
488The USITC's final determination reads as follows:
Based on the record in these five-yea r reviews, we determine under section
751(c) of the Tariff Act of 1930, as amended ("the Act"), that revocation of
the antidumping duty orders on Oil Country Tubular Goods ("OCTG") other
than drill pipe ("casing and tubing") fr om Argentina, Italy, Japan, Korea,
and Mexico and of the countervailing duty order on casing and tubing from
Italy would be likely to lead to continuation or recurrence of material
injury to an industry in the United States within a reasonably foreseeable
time.
(USITC Report, p. 1) (emphasis added)

311. As we have already mentioned, Article 11.3 requ ires that a determination of "likely" injury
rest upon a sufficient factual basis that would permit the investigating authority to draw reasoned and
adequate conclusions. We agree with the United St ates that because the USITC had explicitly stated
in its final determination that it applied the "lik ely" standard, "the only way for the Panel to assess
whether that standard was in fact applied was to evaluate whether the facts supported that finding".
489
Thus, by carrying out the task of evaluating whethe r the USITC's determination of likely injury was
supported by a sufficient factual basis, the Panel responded to the question whether the USITC
actually applied the "likely" standard in the sunset re view. We examine this issue in the next section
of this Report.
312. We move now to the question whether the Pane l erred in failing to consider the USITC's
statements before United States courts or before a NAFTA panel regarding the meaning of "likely" as
used in Article 11.3 of the Agreement. 490 We agree with Argentina that the USITC's statements
before United States courts or before a NAFTA pane l are not, in principle, inadmissible evidence in
WTO dispute settlement proceedings as such. 491 However, we disagree with Argentina's
understanding of the Panel's position. The task of the Panel was to decide whether the determination
of "likely" future injury rested, in this specific case, on a sufficient factual basis to allow the USITC to
draw reasoned and adequate conclusions. In order to perform this exercise properly, the Panel did not
need to resort to the statements of the USITC before domestic courts or before a NAFTA panel,
because the Panel's assessment necessarily had to be based on the meaning of "likely" within the
WTO legal system—namely the meaning attributed to this term by the Appellate Body in US –
Corrosion-Resistant Steel Sunset Review. Therefore, it was not unreasonable for the Panel to consider
that the USITC's statements to which Argentina refers were "not relevant" 492 in the task of assessing
the application of the "likely" standard in Article 11. 3 with respect to injury in the sunset review at
issue.
313. In any event, we consider that the Panel's deci sion not to rely on the statements of the USITC
before domestic courts and before a NAFTA pa nel relates to the weighing of evidence. In EC –
Hormones, the Appellate Body observed that:

490Panel Report, para. 7.285.
491Argentina's other appellant's submission, paras. 47-48 (quoting Panel Report, Mexico – Corn Syrup,
para. 7.32).
492Panel Report, para. 7.285.

[the d]etermination of the credibility and weight properly to be
ascribed to (that is, the appreciation of) a given piece of evidence is
part and parcel of the fact finding process and is, in principle, left to
the discretion of a panel as the trier of facts.
493
The Appellate Body has consistently emphasized th at, within the confines of their obligation under
Article 11 of the DSU to make "an objective assessment of the facts of the case", panels enjoy a
"margin of discretion" as triers of facts.
494 Accordingly, we see no reason to interfere with the Panel's
treatment of the USITC's statements before domestic courts and before a NAFTA panel.
314. In the light of these considerations, we find that the Panel did not err in its interpretation of
the term "likely" in Article 11.3 of the Anti-Dumping Agreement.
X. Consistency of the USITC's Determination with the Standard of "Likelihood" in
Article 11.3 of the Anti-Dumping Agreement
315. We now move to the issue of whether the Pane l erred in finding that the likelihood-of-injury
determination made by the USITC is not inconsistent with Article 11.3 of the Anti-Dumping
Agreement.
316. The determination of the USITC—that the re vocation of the anti-dumping duty orders on
casing and tubing from Argentina, Italy, Japan, Ko rea, and Mexico would be likely to lead to
continuation or recurrence of injury to the dom estic industry—was based essentially on analyses of
the likely volume of dumped imports, the likely price effects of dumped imports, and the likely
impact of dumped imports on the United States' industry. The Panel examined separately the USITC's
analyses with respect to the likely volume of du mped imports, the likely price effects of dumped
imports, and the likely impact of dumped imports on the United States industry. As regards the
finding of the USITC that "in the absence of the orders, the likely volume of cumulated subject
imports, both in absolute terms and as a share of the U.S. market, would be significant"
 495, the Panel's
analysis focused on the main justification given by the USITC in support of its finding, namely that
subject producers have incentives to devote more of their productive capacity to producing and
shipping casing and tubing to the United States market. The Panel found that the USITC's
determination that the subject producers could shift their productive capacity from other pipe and tube

494Appellate Body Report, EC – Asbestos , para. 161. See also, for example, Appellate Body Report,
EC – Tube or Pipe Fittings, para. 125; Appellate Body Report, EC – Bed Linen (Article 21.5 – India), paras. 170,
177, and 181; Appellate Body Report, EC – Sardines , para. 299; Appellate Body Report, Korea – Alcoholic
Beverages, paras. 161-162; Appellate Body Report, Japan – Agricultural Products II, paras. 141-142; Appellate
Body Report, US – Wheat Gluten , para. 151; Appellate Body Report, Australia – Salmon , para. 266; and
Appellate Body Report, Korea – Dairy, para. 138.
495USITC Report, p. 20.

products to casing and tubing exported to the United St ates market, had a sufficient factual basis in
the record. Consequently, the Panel concluded th at Argentina failed to prove that the USITC's
determination concerning the likely volume of dumped imports is inconsistent with Article 11.3 of the
Anti-Dumping Agreement.
317. With respect to the finding of the USITC that dumped imports "would compete on the basis
of price in order to gain additional market shar e" and that "such price-based competition by subject
imports likely would have significant depressing or suppressing effects on the prices of the domestic
like product"
 496, the Panel rejected Argentina's argument th at the price comparison carried out by the
USITC was not adequate because of the limited numb er of comparisons involved. For the Panel, "a
price comparison made as part of a sunset determ ination does not necessarily require a threshold in
terms of the number of comparisons used." 497 The Panel considered that the USITC's approach was
adequate because the volume of export sales to the United States market was limited in the period
under the anti-dumping orders. Also, the Panel found th at the USITC did not err by stating that price
was an important factor in purchasing decisions in the United States market. Consequently, the Panel
concluded that the USITC's determ ination regarding the likely price effects of dumped imports was
based on an objective examination of the evidence in the record and consistent with Article 11.3 of
the Anti-Dumping Agreement.498
318. Regarding the likely impact of dumped imports on the United States industry, the Panel
opined that the USITC's finding—that the state of the domestic industry as of the date of the sunset
review at issue was positive—"[did] not preclude it from nevertheless finding that the US industry is
likely to be affected by the increase in the volume and the negative effect of the prices of the likely
dumped imports".499 The Panel found that, given the circumstances of the case at hand, it was "proper
to conclude that the likely increased volume and ne gative price effect of dumped imports would also
have a negative impact on the state of the US industry". 500 Consequently, the Panel concluded that
"the USITC's determinations regarding the likely c onsequent impact of the likely dumped imports on
the US industry was not inconsistent with Article 11.3 of the [Anti-Dumping Agreement]".501
319. Argentina alleges that the Panel erred in failin g to find that the USITC's determinations on
injury were not based on properly established facts, positive evidence, or an objective examination.

496USITC Report, p. 21.
497Panel Report, para. 7.303.
498Ibid., para. 7.306.
499Ibid., para. 7.311.
500Ibid.
501Ibid., para. 7.312.

In particular, Argentina contends that the USIT C's decision to conduct a cumulative assessment of
imports was inconsistent with Artic le 11.3. Argentina also argues th at the Panel erred in concluding
that the USITC properly established the facts n ecessary to satisfy the "likely" standard for
determinations relating to injury, and in not finding that the USITC's determinations on likely volume,
price, and adverse impact were not based on positive evidence or an objective examination.
320. Our analysis proceeds in the following order: (a) the standard of review the Panel had to
apply in order to determine whether the USITC's determinations on injury were consistent with
Article 11.3 of the Anti-Dumping Agreement; (b) whether the Panel erred by failing to find that the
USITC's decision to conduct a cumulative assessment of imports was inconsistent with Article 11.3;
(c) whether the Panel erred by finding that the USITC's determination concerning the likely volume of
dumped imports was not inconsistent with Article 11.3; (d) whether the Panel erred by finding that
the USITC's determination concerning the likely pric e effects of dumped imports was not inconsistent
with Article 11.3; and (e) whether the Panel erred by finding that the USITC's determination
concerning the likely impact of dumped imports on the United States industry was not inconsistent
with Article 11.3.
A. Standard of Review
321. In US – Corrosion-Resistant Steel Sunset Review , the Appellate Body approved the
description set out by the panel in that case of investigating authorities' obligations in a sunset review:
The text of Article 11.3 contains an obligation "to determine"
likelihood of continuation or recurre nce of dumping and injury. The
text of Article 11.3 does not, however, provide explicit guidance
regarding the meaning of the term "determine". The ordinary
meaning of the word "determine" is to "find out or establish
precisely" or to "decide or settle". 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 application 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 and injury. An investigating authority must have a
sufficient factual basis to allow it to draw reasoned and adequate
conclusions concerning the likeli hood of such continuation or
recurrence.
502 (emphasis added)

502Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 114 (quoting Panel
Report, US – Corrosion-Resistant Steel Sunset Review , para. 7.271 (footnotes omitted)). The Appellate Body
stated, in paragraph 115, that:
[t]he Panel's description of the obligations of investigating authorities in
conducting a sunset review closely resembles our own, and we agree with it.

322. These obligations of investigating authorities inform the task of a panel called upon to
evaluate the consistency of an investigating aut hority's determination with Article 11.3 of the Anti-
Dumping Agreement. The task of the panel is to assess wh ether the investigating authorities properly
established the facts and evaluated them in an unbiased and objective manner.
503 We agree with the
Panel that "[its] task [was] not to perform a de novo review of the information and evidence on the
record of the underlying sunset review, nor to substitute [its] judgment for that of the US
authorities".504 If the panel is satisfied that an investig ating authority's determination on continuation
or recurrence of dumping or injury rests upon a suff icient factual basis to allow it to draw reasoned
and adequate conclusions, it should co nclude that the determination at issue is not inconsistent with
Article 11.3 of the Anti-Dumping Agreement.505
323. Under Article 11.3 of the Anti-Dumping Agreement , a decision not to terminate an anti-
dumping duty must be based on determinations of likelihood of continuation or recurrence of
dumping and likelihood of continuatio n or recurrence of injury. We agree with the United States that
the "likely" standard of Article 11.3 applies to the overall determinati ons regarding dumping and
injury; it need not necessarily apply to each factor considered in rendering the overall determinations
on dumping and injury.506 In this case, the USITC's overall conclusion that continuation or recurrence
of injury was likely, was the result of three separ ate conclusions: the likely volume of cumulated
dumped imports; the likely price effects of dum ped imports; and the likely impact of dumped
imports on the domestic industry, in the event the anti-dumping duties were terminated. Therefore,
given the manner in which the USITC structured its reasoning in this case—conducting a three-step
approach to arriving at an overa ll determination—it was legitimate for the Panel to assess whether
each of the three USITC conclusions rested on a sufficient factual basis.
B. Cumulative Assessment of Dumped Imports
324. The Panel found that the USITC's determination concerning the likely volume of dumped
imports was not inconsistent with Article 11.3 of the Anti-Dumping Agreement .507 In its

503Anti-Dumping Agreement, Article 17.6(i).
504Panel Report, para. 7.5.
505There are analogies between this description of the panel's task and what the Appellate Body stated
in US – Lamb in the context of the application of safeguard measures. In that case, the Appellate Body
recalled that the applicable standard is neither de novo review, nor total deference, but rather the objective
assessment of the facts. (Appellate Body Report, US – Lamb , para. 101) The Appellate Body went on to state
that "[f]irst, a panel must review whether competent authorities have evaluated all relevant factors , and,
second, a panel must review whether the authorities have provided a reasoned and adequate explanation of
how the facts support their determination." (Ibid., para. 103) (original emphasis; footnote omitted)
507Panel Report, para. 7.298.

determination, the USITC made a cumulative assessm ent of the imports from Argentina, Italy, Japan,
Korea, and Mexico. 508 On appeal, Argentina argues that the USITC's decision to conduct a
cumulative assessment was inconsistent with Article 11.3, and that the Panel erred by failing to reach
this conclusion.
325. We have already found, in Section VIII of this Report, that recourse to a cumulative analysis
of imports is permissible in sunset reviews. Th e argument we are dealing with in this Section,
however, is of a different nature. Here, we ar e addressing Argentina's contention that recourse to
cumulation in this case is inconsistent with Artic le 11.3 because the USITC's decision to cumulate
imports was not based on a sufficient factual basis.509
326. The USITC's decision to conduct a cumulative assessment was based principally on an
analysis of four factors, namely: (i) whether subject imports of casing and tubing from any of the
subject countries were likely to have "no discer nible adverse impact on the domestic industry" 510;
(ii) whether the imports from Argentina, Italy, Korea, Japan, and Mexico, and the domestic like
products, are fungible; (iii) whether the imports from Argentina, Italy, Korea, Japan, and Mexico, and
the domestic like products, would likely be sold through similar channels of distribution if the orders
were revoked; and (iv) whether the imports fro m all the subject countries and the domestic like
products would be sold in the same geographic markets and simultaneously be present in the market if
the orders were revoked. 511 On appeal, Argentina focuses on the fourth factor. Argentina contends
that the USITC's decision to conduct a cumulative assessment did not r est on a sufficient factual basis
because "the [USITC's] decision regarding the important issue of whether the imports would be
simultaneously present in the market was based almo st exclusively on an inference drawn from the
original investigation." 512
327. Argentina places great emphasis on the fact that in the analysis presented in support of the
decision to cumulate imports, the USITC relied on info rmation related to the original investigation.
For Argentina, in doing so, the USITC acted inconsis tently with the principle set out by the Appellate
Body in US – Carbon Steel:

508USITC Report, p. 14.
509Argentina's other appellant's submission, para. 70.
510USITC Report, p. 11.
511Ibid., pp. 10-14.
512Argentina's other appellant's submission, para. 73.

Mere reliance by the authorities on the injury determination made in
the original investigation will not be sufficient. Rather, a fresh
determination, based on credible evidence, will be necessary to
establish that the continuation of the [measure] is warranted to
remove the injury to the domestic industry.
513 (footnote omitted)
328. We disagree with Argentina that the USITC's references to information gleaned in the original
investigation rendered WTO-inconsis tent its decision to cumulate the effects of dumped imports.
In US – Carbon Steel , the Appellate Body clarified that, in a sunset review, a "fresh determination"
on the likelihood of future injury is necessary because "[t]he nature of th e determination to be made
in a sunset review differs in certain essential resp ects from the nature of the determination to be made
in an original investigation." 514 Therefore, "[m]ere reliance by the authorities on the injury
determination made in the original investigation will not be sufficient." 515 US – Carbon Steel does
not, however, establish a prohibition on investigating authorities from referring in a sunset review to
information related to the original investigation. In this case, it seems to us that the information to
which the USITC referred was relevant to the decision to cumulate imports and, ultimately, to the task
of assessing the likelihood of continuation or recurrence of injury. 516 Moreover, the USITC referred
to this information in the context of a fresh determination as to whether the expiry of the orders would
be likely to lead to continuation or recurrence of injury.

513Appellate Body Report, US – Carbon Steel , para. 88 (cited in Argentina's other appellant's
submission, para. 74).
514Ibid., para. 87.
515Ibid., para. 88. (footnote omitted)
516We note that the USITC also referred to information subsequent to the original investigation. The
USITC noted that "[a]lthough the volume of subject im ports has generally declined since 1995, at least one
producer in each subject country has access to an active channel of distribution in the United States". (USITC
Report, p. 10) The USITC referred to the "prevailing conditions of competition in the U.S. market". ( Ibid.,
p. 10, and Part II ) According to the USITC, "[t]he current reco rd similarly indicates that subject imports and
the domestic like products are relatively fungible and are made to the same specifications". ( Ibid., p. 12)
Regarding channels of distribution, the USITC observed that "today, the majority of all OCTG continues to be
sold by both domestic producers and importers to distributors". ( Ibid., p. 13) With respect to simultaneous
presence and sales in the same geographic market, the factor highlighted by Arge ntina on appeal, the USITC
made the following comment:
[W]e note that import data indicate that subject imports from Argentina and
Italy were present in the U.S. market in every year since the order went into
effect. Thus, the record in the presen t reviews indicates that the domestic
like product and imports of the subject merchandise continue to be
simultaneously present in the market and sold in the same geographic
markets.
(Ibid., p. 14, footnote 82) Therefore, th is was not a situation of "mere reliance by the authorities on the injury
determination made in the original investigation", as discussed in US – Carbon Steel . (Appellate Body Report,
US – Carbon Steel, para. 88)

329. In the light of these considerations, we find that the Panel did not err in not finding that the
USITC's decision to cumulate the dumped imports was based on an insufficient factual basis, and in
not finding that the USITC's decision on cumulation was inconsistent with Article 11.3 of the Anti-
Dumping Agreement.
C. Likely Volume of Dumped Imports
330. The USITC's determination that, in the absen ce of the anti-dumping duty order, the likely
volume of dumped imports would be significant, was based principally on the finding that the subject
producers had incentive to devote more of their pr oductive capacity to producing and shipping more
casing and tubing to the United States market.
517 As the Panel noted, the USITC identified five
supporting factors for this conclusion:
The USITC's determination reads, in relevant part:
The 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.
Nevertheless, 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 U.S.
market.
First, ... [w]hile the Tenaris companies seek to downplay the
importance of the U.S. market rela tive to the rest of the world,
they acknowledge 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 U.S. market, including the supply of its global
customers' OCTG requirements in the U.S. market.
Second, casing and tubing are among the highest valued pipe
and tube products, generati ng among the highest profit
margins....
Third, the record in these re views indicates that prices for
casing and tubing on the world market are significantly lower
than prices in the United States...We have considered
respondents' arguments that the domestic industry's claims of
price differences are exaggerated, but nevertheless conclude
that there is on average a di fference sufficient to create an
incentive for subject producers to seek to increase their sales of
casing and tubing to the United States.
Fourth, subject country producers also face import barriers in
other countries, or on related products...
Finally, we find that industries in ***of the subject countries
are dependent on exports for the majority of their sales...

517USITC Report, p. 19.

We therefore find that, in the absence of the orders, the likely
volume of cumulated subject im ports, both in absolute terms
and as a share of the U.S. market, would be significant.
518
331. The Panel was of the view that these five supporting factors constituted a sufficient factual
basis for the USITC's determination that subject producers had incentive to devote more of their
productive capacity to the United States market. Thus, the Panel saw:
... no element in the USITC's Final Determination which would
support the assertion that the USITC's determination on this matter
was based on an improper establishment of facts or a biased or
unobjective evaluation thereof.
519
332. On appeal, Argentina refers to some of the Panel's statements about the USITC's
determination where the Panel used language such as " could shift its production capacity ", " might
shift their production", and "shifting was technically possible".520 Argentina relies on these quotes to
argue that the Panel did not equate "likely" injury with "probable" injury.
333. In Section IX of this Report, we addressed a nd rejected Argentina's argument that the Panel
misinterpreted the term "likely" in Article 11.3. In any event, we do not agree with Argentina that it
can necessarily be inferred from the use of words su ch as "could", "might", or "possible" that the
Panel erred in the interpretation or application of the "likely" standard. As we mentioned above 521,
the "likelihood" standard set out in Article 11.3 applies to a likelihood-of-injury determination as a
whole, not to each and every factor that the inve stigating authority considers in the course of its
analysis.
334. We see no reason to disturb the Panel's assessme nt that the USITC's determination regarding
likely volume of dumped imports is not in consistent with Article 11.3 of the Anti-Dumping
Agreement. According to the Panel, it was not unreas onable for the USITC to base its determination
on the likely volume of dumped imports on an analysis of the question whether subject producers had
incentive to devote more of their productive capac ity to producing and shipping casing and tubing to
the United States market. The finding of the USITC that subject producers had such an incentive rests
upon its analysis of five factors. For the Panel, th e issue was whether the USITC's determination, that
subject producers could shift their productive capacity , had "sufficient factual basis in the record".
522

518Panel Report, para. 7.291 (quoting USITC Report, pp.19-20 (footnotes omitted)).
519Ibid., para. 7.297.
520Argentina's other appellant's submission, para. 78 (quoting Panel Report, paras. 7.290 and 7.295).
(emphasis added by Argentina)
521Supra, para. 323.
522Panel Report, para. 7.290.

In this respect, the Panel concluded that Argentina had not shown that the USITC's analysis of the five
factors was not supported by positive evidence.
335. We find no fault with the Panel's conclusion that it was reasonable for the USITC to base its
determination on an analysis of the incentive for subject producers to shift production. Indeed,
Argentina does not challenge this aspect of the Pane l's reasoning; rather, its claim is based on an
allegation that there was no positive evidence on the existence of such an incentive. On appeal,
Argentina points to specific passages of the USITC' s determination and contends that these specific
passages are "based on speculation rath er than positive evidence of what was probable to occur".
523
Argentina does not explain, however, how these alleged flaws of the USITC's determination
undermine the Panel's reasoning.
336. In its reasoning, the Panel noted that Argentina challenged the factual basis of two of the five
factors: trade barriers (the fourth factor) and price differences between the United States' and the
world market (the third factor). As regards trade barriers (the fourth factor), the Panel provided the
following explanation:
We note that the USITC referred to a number of trade barriers.
However, of these barriers only one related to the subject product, i.e.
Canadian anti-dumping measure on casing and tubing from Korea.
Others concerned related products , i.e. products that could be
produced in the same production lines as casing and tubing. The
issue therefore is whether the USITC erred in considering that certain
exporters that were subject to trad e barriers with respect to certain
product types, which could be produ ced in the same production lines
as casing and tubing, might shift their production to casing and
tubing, which could enter the US market free of the anti-dumping
measure at issue in these proceedings. Given that it is undisputed
between the parties that such shifting was technically possible, we
see no reason why the USITC could not make such an inference in
the circumstances of the instant sunset review. It is only normal to
expect a producer to seek to maximize its profits, which, in this case,
would be possible through shifting production to casing and tubing in
order to enter the US market free of the anti-dumping duty at issue
had it been revoked. We therefore consider that this aspect of the
USITC's conclusion was reasoned in light of the evidence in the
record.
524

523Argentina's other appellant's submission, para. 94. See also, ibid., para. 83 ("sheer speculation");
were based on speculation, rather than on positive evidence"); para. 90 ("This is simply unfounded
speculation"); and para. 98 ("the [USITC] based its determination on speculation").
524Panel Report, para. 7.295.

337. We see no reason to disagree with the Panel that th e fourth factor had a factual basis, namely,
that shifting production was technically possible. In deed, Argentina does not dispute this. Therefore,
we find no error in the Panel's conclusion that the f ourth factor "was reasoned in light of the evidence
in the record".
525
338. With respect to price differences between the United States and the world market (the third
factor), the Panel made the following statement:
Next, Argentina submits that the USITC's analysis concerning the
price differences between the US and the world markets was based
on anecdotal evidence rather than independent reports. We note that
the USITC's report cites the testimony of three individuals in this
sector as evidence of this price differentiation and it cites no
objection raised by interested parties in this respect. Argentina is not
raising any argument as to the correctness of the substance of this
testimony. Nor has it brought to our attention another piece of
evidence that might support the opposite finding in this regard.
Argentina's claim in this regard therefore is limited to the kind of
evidence the USITC relied upon. Keeping in mind our standard of
review with respect to factual determinations by an investigating
authority, and conscious that there are no rules in the Anti-Dumping
Agreement as to the type of evidence that can support an
investigating authority's findings, we are of the view that the
USITC's reference to the testimonies of individuals who are
knowledgeable in the relevant sector was proper.
526 (footnote
omitted)
339. The factual basis of the third factor identif ied by the Panel was the testimony of three
individuals knowledgeable in the sector. On appeal , Argentina does not challenge that the factual
basis of the third factor was the testimonies, or that these testimonies constitute positive evidence.
We, therefore, find no fault with the conclusion of the Panel that "the USITC's reference to the
testimonies of individuals who are knowledgeable in the relevant sector was proper".527
340. We observe that most of the arguments put fo rward by Argentina on appeal with respect to
the application by the USITC of the standard of likel ihood is centred on the premise that some of the
factors presented by the USITC are speculative. In particular, Argentina seems to assume that
positive evidence requires absolute certainty on what is likely to occur in the future. We have some
difficulty with this line of reasoning. Of course, we agree with Argentina that the investigating

525Panel Report, para. 7.295.
526Ibid., para. 7.296.
527Ibid.

authority's likelihood determinations under Article 11.3 must be based on "positive evidence". As the
Appellate Body stated in US – Hot-Rolled Steel:
The term "positive evidence" relates ... to the quality of the evidence
that authorities may rely upon in making a determination. The word
"positive" means ... that the evidence must be of an affirmative,
objective and verifiable character, and that it must be credible.528
341. The requirements of "positive evidence" must, ho wever, be seen in the context that the
determinations to be made under Article 11.3 are prospective in nature and that they involve a
"forward-looking analysis". 529 Such an analysis may inevitably entail assumptions about or
projections into the future. Unavoidably, theref ore, the inferences drawn from the evidence in the
record will be, to a certain extent, speculative. In our view, that some of the inferences drawn from
the evidence on record are projections into the future does not necessarily suggest that such inferences
are not based on "positive evidence". The Panel cons idered that the five factors addressed by the
USITC were supported by positive evidence in the USIT C's record and, as we have explained, we see
no reason to disagree with the Panel.
342. Accordingly, we uphold the Panel's finding, in paragra ph 7.298 of the Panel Report, that
"Argentina has failed to prove that the USITC's determinations concerning the likely volume of
dumped imports were WTO-inconsistent".
D. Likely Price Effects of Dumped Imports
343. The USITC determined that, in the absence of the anti-dumping orders, casing and tubing
from the subject producers "would compete on the basis of price in order to gain additional market
share" and "that such price-based competition by subject imports likely would have significant
depressing or suppressing effects on the prices of the domestic like product".
 530 The USITC based
this determination on five factors: (1) the likely significant volume of subject imports; (2) the high
level of substitutability between the subject impor ts and the domestic like products; (3) the
importance of price in purchasing decisions; (4) the volatile nature of United States demand; and (5)
the underselling by the subject imports in the origin al investigations and during the current review
period.

528Appellate Body Report, US – Hot-Rolled Steel, para. 192.
529Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 105.
530USITC Report, p. 21.

344. The Panel concluded that "the USITC's determin ation regarding the likely price effect of
dumped imports was based on an objective examination of the evidence in the record."
 531 I n i t s
reasoning, the Panel rejected Argentina's argument that the USITC's determination did not result from
an objective examination of the evidence in th e record because the USITC's price-underselling
analysis was based on a limited set of comparisons. 532 For the Panel, "a price comparison made as
part of a sunset determination does not necessarily require a threshold in terms of the number of
comparisons used." 533 The Panel considered that "under the circumstances of this case the USITC's
calculations were adequate because the volume of export sales into the US market [was] limited in the
period of application of the measure." 534 Also, the Panel rejected Argentina's contention that "the
USITC's determination that price was an important factor in the purchasing decisions in the US
market was flawed because the documents in the record show that purchasers attached a similar
importance to factors other than price." 535 The Panel noted that "[t]he USITC did not state that price
was the only important factor, or even the most important factor; it just stated that it was an important
factor." 536 For the Panel, such a statement was consistent with the evidence in the record.537
345. On appeal, Argentina argues that in endorsing a price-underselling analysis based on a limited
set of comparisons, and in finding that the USITC stated that price was an important factor among
others, the Panel failed to apply the "likely" st andard when it considered the issue of pricing. 538 In
addition, Argentina refers to a series of speci fic passages from the USITC's determination, and
submits that they are not based on positive evidence.539
346. We see no reason to interfere in the Panel's conclusion that the price comparisons made by the
USITC were adequate and supported its price-underselling analysis. We agree with the Panel that the
small volume of export sales into the United St ates market following the imposition of the anti-
dumping orders limited the number of comparisons the USITC could make. On appeal, Argentina
seems to suggest that, merely because the price comparisons made by the USITC represented a

531Panel Report, para. 7.306.
532Ibid., para. 7.300.
533Ibid., para. 7.303.
534Ibid.
535Ibid., para. 7.304.
536Ibid. (original underlining)
537Ibid. The Panel referred to the staff report that accompanied the USITC's determination. The Panel
indicated that the staff report showed that purchasers ranked eight factors between 1.8 and 2.0, and that price
was ranked 1.8.
538Argentina's other appellant's submission, paras. 99-104.
539Ibid., paras. 105-114.

"limited basis of information", they cannot be viewed as "positive evidence". 540 We disagree. We
endorse the Panel's view that "[t]he simple fact that the number of price comparisons was limited does
not make this aspect of the USITC's determina tion inconsistent with Article 11.3 of the [ Anti-
Dumping Agreement]." 541
347. The Panel also addressed, in its reasoning, the question whether the USITC's statement that
price was an important factor rested on a sufficient factual basis. The Panel pointed out that this
statement was supported by a study on the percep tions of purchasers in the United States market,
which was presented in the staff report that accompanied the USITC's determination. 542 W e f i n d
nothing in Argentina's arguments to suggest that such study could not constitute a sufficient factual
basis for the USITC's position that price is an impor tant factor in the purchasing decisions in the
United States market.
348. Argentina has failed to show that the Panel erre d in its analysis of the USITC's determination
on the likely price effects of dumped imports. Therefore, we uphold the Panel's finding, in
paragraph 7.306 of the Panel Report, that "the USIT C's determination regarding the likely price effect
of dumped imports was based on an objective examination of the evidence in the record." 543
E. Likely Impact of Dumped Imports on the United States' Industry
349. The Panel was of the view that the USITC's de termination regarding the likely impact of
dumped imports on the United States' industry me t the requirements of Article 11.3 of the Anti-
Dumping Agreement, as it rested upon a sufficient factual basis and reflected an objective examination
of the facts. In this respect, the Panel made the following statement:

540Argentina's other appellant's submission, para. 109.
541Panel Report, para. 7.303.
542See supra, footnote 537.
543Panel Report, para. 7.306.

As long as the investigating authority 's determination is based on a
sufficient factual basis and it reflects an objective examination of
these facts, it will meet the requirements of Article 11.3. In this case,
the USITC found that imports were likely to increase and to have a
negative effect on the prices of th e US industry in the event of
revocation of the measure at issue. Then, the USITC found that this
likely increase in imports and their likely price effect would have a
negative impact on the US industry. In the circumstances of the case
at hand, we find it proper to c onclude that the likely increased
volume and negative price effect of dumped imports would also have
a negative impact on the state of the US industry. Further, in our
view, the USITC's observations regarding the state of the US industry
as of the date of the sunset review at issue do not preclude it from
nevertheless finding that the US industry is likely to be affected by
the increase in the volume and the negative effect of the prices of the
likely dumped imports.
544
350. On appeal, Argentina argues that, given the positiv e state of the domestic industry at the date
of the sunset review, the Panel should have conclu ded that an adverse impact was not probable.
Argentina submits that the findings of the USIT C "disregard positive ev idence that injury was not
probable".545
351. Argentina has not persuaded us that the Panel made an error in its analysis. It appears to us
that the Panel was correct in its reasoning that th e USITC had a sufficient factual basis to conclude
that adverse impact on the domestic industry was likely from a likely increase in the volume of
dumped imports and their likely negative price effe ct. The positive state of the domestic industry as
of the date of the sunset review need not necessarily be dispositive of the future when other adverse
factors are present. Also, Argentina does not expl ain, on appeal, why the Panel could not properly
find a relationship of cause and effect between, on th e one hand, the USITC's determinations of likely
increase in the volume of dumped imports and of lik ely negative price effect of dumped imports, and,
on the other hand, likely adverse impact on the domestic industry.
352. Argentina has failed to show that the Panel erre d in its analysis of the USITC's determination
on the likely impact of dumped imports on the domestic industry. Therefore, we uphold the Panel's
finding, in paragraph 7.312 of the Panel Report, that "under the circumstances of this sunset review,
the USITC's determinations regarding the likely co nsequent impact of the likely dumped imports on
the US industry [were] not inconsistent with Article 11.3 of the [Anti-Dumping Agreement]." 546

544Panel Report, para. 7.311.
545Argentina's other appellant's submission, para. 121. (original emphasis)
546Panel Report, para. 7.312.

XI. The Timeframe in a Likelihood-of-Injury Determination
353. We consider next the legal issues relating to the timeframe of the likelihood-of-injury
determination. First, we assess whether the Panel e rred in finding that the standard of continuation or
recurrence of injury "within a reasonably foreseeab le time", as provided in Sections 752(a)(1) and
752(a)(5) of the Tariff Act of 1930, is not inconsistent with Article 11.3 of the Anti-Dumping
Agreement. Secondly, we address the issue of whether the Panel erred in finding that the application
of the standard of continuation or recurrence of injury within a reasonably foreseeable time in the
sunset review at issue is not inconsistent with Article 11.3 of the Anti-Dumping Agreement.
A. Standard of Continuation or Recurrence of Injury Within a Reasonably Foreseeable
Time
354. Section 752(a)(1) of the Tariff Act of 1930 reads, in relevant part:
(1) In general
... the Commission shall determine whether revocation of an order, or
termination of a suspended investiga tion, would be likely to lead to
continuation or recurrence of material injury within a reasonably
foreseeable time.547 (emphasis added)
355. Section 752(a)(5) of the Tariff Act of 1930 reads, in relevant part:
(5) Basis for determination
The presence or absence of any factor which the Commission is
required to consider under this s ubsection shall not necessarily give
decisive guidance with respect to the Commission's determination of
whether material injury is likely to continue or recur within a
reasonably foreseeable time if the order is revoked or the suspended
investigation is terminated. In making that determination, 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.
548 (emphasis added)
356. The Panel noted that Article 11.3 of the Anti-Dumping Agreement does not prescribe any
timeframe for likelihood of continuation or recurren ce of injury; nor does it require investigating
authorities to specify the timeframe on which thei r likelihood determination is based. The Panel

547Codified in Title 19, Section 1675(a)(1) of the United States Code (Exhibit ARG-1 submitted by
Argentina to the Panel).
548Codified in Title 19, Section 1675(a)(5) of the United States Code (Exhibit ARG-1 submitted by
Argentina to the Panel).

consequently concluded that the standard of the "reasonably foreseeable time", set out in Sections
752(a)(1) and 752(a)(5), does not conflict with Article 11.3 of the Anti-Dumping Agreement.
549
357. Argentina contends that this finding is in error. According to Argentina, Article 11.3 contains
a temporal limitation on the timeframe within which injury must be determined to be likely to
continue or recur. This temporal limitation, argues Argentina, flows from Article 3.7 of the Anti-
Dumping Agreement, which relates to the notion of threat of material injury and provides that "[t]he
change in circumstances which would create a s ituation in which the dumping would cause injury
must be clearly foreseen and imminent." 550 For Argentina, an authority making an injury
determination pursuant to Article 11.3 must base its findings on positive evidence that injury would
be likely to continue or recur within the period of time beginning with the expiry of the order, but not
exceeding circumstances deemed to be "immi nent" within the meaning of Article 3.7. 551 Argentina
posits that under the Tariff Act of 1930, a "reas onably foreseeable time" corresponds to a period that
might exceed the "imminent" timeframe appli cable in a threat of injury analysis. 552 Argentina adds
that the standard of the "reasonably foreseeable time" would create an "impermissible gap" during
which an anti-dumping duty would remain in effect without the existence of present or threatened
material injury.
553
358. The thrust of Argentina's argumentation on appeal is centred on footnote 9 of the Anti-
Dumping Agreement, which provides, inter alia, that "[u]nder this Agreement the term 'injury' ... shall
be interpreted in accordance with the provisions of ... Article [3]." A ccording to Argentina, by virtue
of footnote 9, Article 3 of the Anti-Dumping Agreement applies to determinati ons relating to injury
in sunset reviews. In particular, the requirement set out in Article 3.7 that the threat of material injury
be "imminent" is, Argentina argues, imported into Ar ticle 11.3 in the form of a temporal limitation on
the timeframe within which "injury" must be determined to continue or recur. In Section VII of this
Report, we have addressed the issue of whether Article 3 is applicable to sunset reviews and
concluded that sunset reviews are not subject to the detailed disciplines of Article 3, which include the
specific requirement of Article 3.7.554

549Panel Report, para. 7.193.
550Anti-Dumping Agreement, Article 3.7, second sentence. (footnote omitted)
551Argentina's other appellant's submission, para. 221.
552Ibid., para. 223.
553Ibid., paras. 237-239.
554See supra, paras. 276-283.

359. As to the "impermissible gap" alluded to by Ar gentina, in our view, this argument is nothing
more than a theoretical possibility, which Argentin a builds from an abstract comparison between, on
the one hand, the "imminent" manifestation of inju ry in the context of an original anti-dumping
investigation and, on the other hand, the manifest ation of injury within a "reasonably foreseeable
time" in the context of a sunset review. The th eoretical possibility of a "gap" would necessarily apply
only to the situation of likelihood of "recurrence" of injury in the future, and not to the situation of
"continuation" of injury. This mere theoretical possibility cannot justify the importation into
Article 11.3 of an "imminent" standard for like lihood of recurrence of injury. Moreover, as the
Appellate Body indicated in US – Corrosion-Resistant Steel Sunset Review , original investigations
and sunset reviews are distinct processes with different purposes. 555 The disciplines applicable to
original investigations cannot, therefore, be automatically imported into review processes.
360. In our view, the Panel correctly analyzed the tim eframe issue. We agree with the Panel that
an assessment regarding whether injury is likely to recur that focuses "too far in the future would be
highly speculative" 556, and that it might be very difficult to justify such an assessment. However, like
the Panel, we have no reason to believe that the standard of a "reasonably foreseeable time" set out in
the United States statute is inconsistent with the requirements of Article 11.3.
361. In the light of these considerations, we uphold the Panel's findings, in paragraphs 7.193 and
8.1(c) of the Panel Report, that the standard of continuation or recurrence of injury "within a
reasonably foreseeable time", as provided in Sectio ns 752(a)(1) and 752(a)(5) of the Tariff Act of
1930, is not inconsistent with Article 11.3 of the Anti-Dumping Agreement.
B. Application of the Standard of Continuation or Recurrence of Injury Within a
Reasonably Foreseeable Time
362. The Panel found that the USITC did not act inconsistently with Article 11.3 of the Anti-
Dumping Agreement in its application of Sections 752(a)(1) and 752(a)(5) of the Tariff Act of
1930.557 For the Panel, this conclusion results from th e "finding that the US statutory provisions
relating to the time-frame on the basis of which the USITC makes its likelihood determinations in
sunset reviews are not WTO-inconsistent". 558 In addition, the Panel rejected Argentina's argument
that the USITC failed to apply Sections 752(a)(1) and 752(a)(5) of the Tariff Act of 1930 in a WTO-

555Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , paras. 106-107; Appellate
Body Report, US – Carbon Steel, para. 87.
556Panel Report, para. 7.185.
557Ibid., paras. 7.259-7.260 and 8.1(e)(i).
558Ibid., para. 7.258.

consistent manner because it did not specify the timeframe that it considered to be reasonably
foreseeable for purposes of its likelihood determination in this sunset review.
559
363. On appeal, Argentina argues that, even assuming, arguendo, that the standard in Sections
752(a)(1) and 752(a)(5) of the Tariff Act of 19 30 is WTO-consistent, it is nevertheless WTO-
inconsistent as applied. According to Argentina, the USITC erred in the application of the legal
standard because it did not indicate the timefra me that it considered to be applicable. 560 Argentina
submits that a determination that does not specify th e relevant timeframe for the injury determination
is not a "properly reasoned and supported determination" 561 and does not have a "firm evidentiary
foundation".562
364. As we have noted above 563, the text of Article 11.3 does not establish any requirement for the
investigating authority to specify the timeframe on which it bases its determination regarding injury.
Thus, the mere fact that the timeframe of the inju ry analysis is not presented in a sunset review
determination is not sufficient to undermine that determination. Article 11.3 requires that a
determination of likelihood of cont inuation or recurrence of injury r est on a sufficient factual basis to
allow the investigating authority to draw reasone d and adequate conclusions . A determination of
injury can be properly reasoned and rest on a sufficient factual basis even though the timeframe for
the injury determination is not explicitly mentione d. In this case, the Panel concluded that the
USITC's determination with respect to injury rested on a sufficient factual basis. The Panel reached
this conclusion in the absence of any reference to the timeframe for the injury analysis in the USITC's
determination. As we explained in Section X of this Report, we see no reason to disagree with the
Panel's conclusion that the USITC's determination rested on a sufficient factual basis. Therefore, we
uphold the Panel's findings, in paragraphs 7.260 and 8.1(e)(i) of the Panel Report, that the USITC did
not act inconsistently with Article 11.3 of the Anti-Dumping Agreement in its application of Sections
752(a)(1) and 752(a)(5) of the Tariff Act of 1930.

559Panel Report, para. 7.259.
560Argentina's other appellant's submission, para. 242.
561Ibid. (quoting Panel Report, para. 7.185).
562Ibid., para. 241 (quoting Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review ,
para. 178).
563Supra, paras. 358-359.

XII. Findings and Conclusions
365. For the reasons set out in this Report, the Appellate Body:
(a) as regards the Panel's terms of reference:
(i) upholds the Panel's finding, in paragraph 7.27 of the Panel Report, that
Section A.4 of Argentina's panel requ est, in accordance with Article 6.2 of
the DSU, sets out with sufficient clarity Argentina's claims that Sections
751(c) and 752(c) of the Tariff Act of 1930, the SAA, and the SPB, are
inconsistent, as such, with Article 11.3 of the Anti-Dumping Agreement, by
virtue of the alleged "irrefutable presumption" contained in those provisions;
(ii) does not need
 to make a finding on the United States' "contingent" challenge
under Article 6.2 of the DSU, with respect to Argentina's claims under
Articles 3.7 and 3.8 of the Anti-Dumping Agreement , because Argentina
does not appeal the Panel's findings on those claims; and
(iii) does not need
 to make findings on the United States' challenges under Article
6.2 of the DSU to Argentina's conditio nal appeals (1) under Article 11.3 of
the Anti-Dumping Agreement, challenging the USDOC "practice" relating to
likelihood-of-dumping determinations in sunset reviews, and (2) under
Article X:3(a) of the GATT 1994, challenging the USDOC's administration
of United States anti-dumping laws, re gulations, decisions, and rulings
relating to the conduct of sunset reviews;
(b) as regards the SPB:
(i) upholds the Panel's finding, in paragraph 7.136 of the Panel Report, that the
SPB is a "measure" subject to WTO dispute settlement; and
(ii) finds that the Panel did not "make an objective assessment of the matter",
as required by Article 11 of the DSU, in reaching, on the sole basis of
the overall statistics in Exhibit ARG- 63, the conclusion that the three
scenarios in Section II.A.3 of the SPB are perceived by the USDOC to be
determinative/conclusive of the like lihood of continuation or recurrence of
dumping. Consequently, the Appellate Body reverses
 the Panel's findings, in
paragraphs 7.166 and 8.1(b) of the Pane l Report, that Section II.A.3 of the

SPB is inconsistent, as such, with Article 11.3 of the Anti-Dumping
Agreement;
(c) as regards the waiver provisions of United States laws and regulations:
(i) upholds
 the Panel's findings, in paragraphs 7.103, 8.1(a)(i), and 8.1(a)(ii) of
the Panel Report, that Section 751(c)(4)(B) of the Tariff Act of 1930 and
Section 351.218(d)(2)(iii) of the USDO C Regulations are inconsistent, as
such, with Article 11.3 of the Anti-Dumping Agreement;
(ii) upholds
 the Panel's findings, in paragraphs 7.128 and 8.1(a)(iii) of the Panel
Report, that Section 351.218(d)(2)(iii) of the USDOC Regulations is
inconsistent, as such, with Articles 6.1 and 6.2 of the Anti-Dumping
Agreement, with respect to respondents that file incomplete submissions in
response to the USDOC's notice of initiation of a sunset review; but does not
agree with the Panel that, with respect to respondents that file no submission,
the failure to accord them the rights detailed in Articles 6.1 and 6.2 renders
Section 351.218(d)(2)(iii) of the USDOC Regulations inconsistent, as such,
with those provisions; and
(iii) finds
 that the Panel did not fail to "make an objective assessment of the
matter before it, including an objective assessment of the facts of the case", as
required by Article 11 of the DSU, in ascertaining the relationship between
company-specific and order-wide determinations and in examining the basis
on which the USDOC concludes that a respondent's submission constitutes a
"complete substantive response";
(d) as regards the factors that an investigati ng authority is required to examine in a
likelihood-of-injury determination:
(i) upholds
 the Panel's finding, in paragraph 7.273 of the Panel Report, that the
obligations set out in Article 3 do not apply to likelihood-of-injury
determinations in sunset reviews. Consequently, the Appellate Body does
not need to "complete the analysis" and make findings with respect to
Argentina's claims that the USITC acted inconsistently with Articles 3.1, 3.2,
3.4, and 3.5 of the Anti-Dumping Agreement; and

(ii) finds that the Panel did not err in its interpretation of the term "injury" in
Article 11.3 of the Anti-Dumping Agreement, or in its analysis with respect
to the factors that an investigating authority is required to examine in a
likelihood-of-injury determination;
(e) as regards cumulation of the effects of dumped imports:
(i) upholds the Panel's findings, in paragra phs 7.334 and 7.335 of the Panel
Report, that Article 11.3 of the Anti-Dumping Agreement does not preclude
investigating authorities from cumula ting the effects of likely dumped
imports in the course of their likelihood-of-injury determinations;
(ii) upholds the Panel's finding, in paragraph 7.336 of the Panel Report, that the
conditions of Article 3.3 of the Anti-Dumping Agreement do not apply in the
context of sunset reviews;
(f) as regards the interpretation of the term "likely" in Article 11.3 of the Anti-Dumping
Agreement, finds that the Panel did not err in its interpretation;
(g) as regards the USITC's determination on likelihood of injury:
(i) finds that the Panel did not err in not finding that the USITC's decision to
cumulate the dumped imports was based on an insufficient factual basis, and
in not finding that the USITC's decision on cumulation was inconsistent with
Article 11.3 of the Anti-Dumping Agreement;
(ii) upholds
 the Panel's finding, in paragraph 7.298 of the Panel Report, that
"Argentina has failed to prove that the USITC's determinations concerning
the likely volume of dumped imports were WTO-inconsistent";
(iii) upholds
 the Panel's finding, in paragraph 7. 306 of the Panel Report, that "the
USITC's determination regarding the li kely price effect of dumped imports
was based on an objective examination of the evidence in the record"; and
(iv) upholds the Panel's finding, in paragraph 7.312 of the Panel Report, that
"under the circumstances of this sunset review, the USITC's determinations
regarding the likely consequent impact of the likely dumped imports on the
US industry [were] not inconsistent with Article 11.3 of the Agreement";

(h) as regards the timeframe used by the USITC in its likelihood-of-injury determination:
(i) upholds
 the Panel's findings, in paragra phs 7.193 and 8.1(c) of the Panel
Report, that the standard of continuation or recurrence of injury "within a
reasonably foreseeable time", as provided in Sections 752(a)(1) and 752(a)(5)
of the Tariff Act of 1930, is not inconsistent with Article 11.3 of the Anti-
Dumping Agreement; and
(ii) upholds the Panel's findings, in paragraphs 7.260 and 8.1(e)(i) of the Panel
Report, that the USITC did not act inconsistently with Article 11.3 of the
Anti-Dumping Agreement in its application of Sections 752(a)(1) and
752(a)(5) of the Tariff Act of 1930;
(i) as regards the conditional appeals of Argentina:
(i) even assuming arguendo that a "practice" may be challenged as a "measure"
in WTO dispute settlement, finds
 that the record does not allow it to complete
the analysis with respect to Argentina's challenge, under Article 11.3 of the
Anti-Dumping Agreement , to the "practice" of the USDOC regarding the
likelihood determination in sunset reviews; and
(ii) finds
 that the record does not allow it to co mplete the analysis with respect to
Argentina's conditional appeal with respect to Article X:3(a) of the
GATT 1994.
366. The Appellate Body recommends
 that the Dispute Settlement Bo dy request the United States
to bring its measures found in the Panel Report, as modified by this Report, to be inconsistent with the
Anti-Dumping Agreement, into conformity with its obligations under that Agreement.

Signed in the original at Geneva this 12th day of November 2004 by:

 Yasuhei Taniguchi
 Presiding Member

 Georges Abi-Saab A.V. Ganesan
 Member Member

ANNEX I

31 August 2004
 (04-3624)
 Original: English

Notification of an Appeal by the United States
under paragraph 4 of Article 16 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes ("DSU")

 The following notification, dated 31 August 2004, from the Delegation of the United States, is being
circulated to Members.

 Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the Settlement of
Disputes ("DSU") and Rule 20 of the Working Procedures for Appellate Review, the United States hereby
notifies its decision to appeal to the Appellate Body certain issues of law covered in the Report of the Panel on
United States – Sunset Reviews of Anti-Dumping Meas ures on Oil Country Tubular Goods from Argentina
(WT/DS268R) and certain legal interpretations developed by the Panel in this dispute.

1. The United States seeks review by the Appellate Body of the Panel's legal conclusion that the
provisions of section 751(c)(4)(B) of the Tariff Act re lating to "affirmative" waivers are inconsistent with
Article 11.3 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade
1994 ("Anti-Dumping Agreement"). This finding is in error and is based on erroneous findings on issues of law
and related legal interpretations, including, for example, that U.S. law, including section 751(c)(4)(B) of the
Tariff Act and section 351.218(d)(2)(iii) of the Department of Commerce's regulations, precludes the
Department of Commerce from making an order-wide determination of likelihood of continuation or recurrence
of dumping, supported by reasoned and adequate conclusions based on the facts before the agency, where an
interested party elects not to participate in the sunset review at the Department of Commerce;
1

2. The United States seeks review by the Appellate Body of the Panel's legal conclusion that the
provisions of section 351.218(d)(2)(iii) of the Department of Commerce's regulations relating to "deemed"
waivers are inconsistent with Article 11.3 of the Anti-Dumping Agreement. This finding is in error and is based
on erroneous findings on issues of law and related legal in terpretations, including, for example, that U.S. law,
including section 751(c)(4)(B) of the Tariff Act and section 351.218(d)(2)(iii) of the Department of Commerce's
regulations, precludes the Department of Commerce from making an order-wide determination of likelihood of
continuation or recurrence of dumping, supported by reasoned and adequate conclusions based on the facts
before the agency, where an interested party elects not to participate in the sunset review at the Department of
Commerce;
2

1See Panel Report, paras. 7.80-7.103, 8.1(a)(i)-(ii).
2See id.

3. The United States seeks review by the Appellate Body of the Panel's legal conclusion that provisions of
section 351.218(d)(2)(iii) of the Department of Comme rce's regulations relating to "deemed" waivers are
inconsistent with Articles 6.1 and 6.2 of the Anti-Dump ing Agreement. These findings are in error and are
based on erroneous findings on issues of law and related legal interpretations, including, for example, that under
U.S. law, including section 751(c)(4)(B) of the Tariff Act and section 351.218(d)(2)(iii) of the Department of
Commerce's regulations, an exporter that fails to file a complete response to the notice of initiation has been
deprived of ample opportunity to submit information in accordance with Article 6.1 or to confront parties with
adverse interests under Article 6.2, and which also rend ers the order-wide likelihood determination inconsistent
with Articles 6.1 and 6.2;
3

4. The United States seeks review by the Appellate Body of the Panel's legal conclusion that provisions of
section II.A.3 of the Sunset Policy Bulletin are inconsistent with Article 11 .3 of the Anti-Dumping Agreement,
and, to the extent that the Panel's conclusion is prem ised on an erroneous assessm ent of the facts, the United
States seeks review of that assessment pursuant to Article 11 of the DSU. This finding is in error and is based
on erroneous findings on issues of law and related legal interpretations, including, for example: the Panel's
conclusion that the Sunset Policy Bulletin is a measure, based solely on its conclusion that the Appellate Body
found this in another dispute; the Panel's failure to rely on the meaning of the Sunset Policy Bulletin under U.S.
municipal law in assessing whether the Sunset Policy Bulletin mandates a breach; and the Panel's reliance on
the "consistent application" of the Sunset Policy Bulletin to conclude that the Sunset Policy Bulletin mandates a
breach;4

5. The United States seeks review by the Appellate Body of the Panel's factual findings regarding U.S.
law. These findings are in error and do not represen t an objective assessment of the facts as required by
Article 11 of the DSU;5

6. The United States seeks review by the Appellate B ody of the Panel's legal conclusion that Argentina's
Panel Request was not inconsistent with Article 6.2 of the DSU. This fi nding is in error and is based on
erroneous findings on issues of law and related legal interpretations, including, for example: the Panel's
conclusion that Argentina's panel request was suff iciently clear and presen ted the problem clearly,
6 the Panel's
conclusion that certain claims were within the terms of reference, 7 and the Panel's conclusion that the United
States did not establish prejudice.8

3See id., paras. 7.107-7.128, 8.1(a)(iii).
4See id., paras. 7.134-7.144, 7.152-7.173, 8.1(b).
5See id., paras. 7.80-7.128.
6See id., paras. 7.10-7.48.
7See id., paras. 7.49-7.70.
8See id., para. 7.71.

ANNEX II

4 April 2003
 (03-1912)
 Original: English

Request for the Establishment of a Panel by Argentina

 The following communication, dated 3 April 2003, from the Permanent Mission of Argentina to the
Chairman of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.

 On 7 October 2002, the Government of the Republic of Argentina requested consultations with the
Government of the United States of America pursuant to Article 4 of the World Trade Organization (WTO)
Understanding on Rules and Procedures Governing the Se ttlement of Disputes (DSU), Article XXII:1 of the
General Agreement on Tariffs and Trade 1994 (GATT 1994), and Article 17.3 of the Agreement on
Implementation of Article VI of GATT 1994 (the Anti-Dumping Agreement) regarding the determinations of
the US Department of Commerce (Department) and th e US International Trade Commission (Commission) in
the sunset reviews of the anti-dumping duty measure on oil country tubular goods (OCTG) from Argentina.

 The first consultation was held in Geneva, Switzerland, on 14 November 2002. A second consultation
was held in Washington, D.C., on 17 December 2002. While the consultations enabled the parties to gain a
better understanding of their respective positions, unfortunately the consultations failed to produce a mutually
agreeable solution.

 In the original anti-dumping duty investigation of OCTG from Argentina covering the period 1 January
1994 through 30 June 1994, the Department determined that Siderca S.A.I.C. (Siderca), an Argentine producer
and exporter of OCTG, was dumping at a margin of 1.36 percent.
1 The Department did not conduct a
substantive administrative review of the anti-dumping duty measure on OCTG from Argentina in the five years
following its imposition.

 On 3 July 2000, the Commission and the Department initiated sunset reviews of the anti-dumping
measures on OCTG from Argentina, Italy, Japan, Korea, and Mexico.
2 Based on the Department's
determination that the responses submitted by Argentine respondent parties to the initiation notice were
"inadequate", the Department conducted an "expedited" sunset review of the anti-dumping duty measure

1 Final Determination of Investigation of Sales at Less Than Fair Value of Oil Country Tubular Goods
From Argentina, 60 Federal Register 33539 (28 June 1995). The 1.36 percent margin was calculated on the
basis of the Department's practice of "zeroing" negative dumping margins.
2 Notice of Initiation of Five-Year ("Sunset") Reviews , 65 Federal Register 41053 (3 July 2000)
(Department's notice); Oil Country Tubular Goods From Argentina, Italy, Japan, Korea, and Mexico, 65 Federal
Register 41088 (3 July 2000) (Commission's notice).

applicable to OCTG from Argentina (Department's Determination to Expedite).
3 On the basis of the
"expedited" review, the Department determined that termination 4 of the anti-dumping duty measure on OCTG
from Argentina would be likely to lead to continuation or recurrence of dumping at 1.36 percent (Department's
Sunset Determination).5

 The Commission determined that termination of the anti-dumping duty measure on OCTG (other than
drill pipe – i.e., casing and tubing) from Argentina, Italy, Japan, Korea, and Mexico would be likely to lead to
continuation or recurrence of material injury to an industry in the United St ates within a reasonably foreseeable
time (Commission's Sunset Determination).
6 The Commission also determined that termination of the
anti-dumping duty measure on drill pipe from Japan would be likely to lead to continuation or recurrence of
material injury to an industry in th e United States within a r easonably foreseeable time. On 25 July 2001, the
Department issued a determination to continue the anti-dumping duty measure on OCTG from Argentina
(Department's Determination to Continue the Order).7

 The Republic of Argentina considers that th e Department's Determination to Expedite, the
Department's Sunset Determination, the Commission's Sunset Determination, and the Department's
Determination to Continue the Order are inconsistent w ith US WTO obligations, and that certain aspects of US
laws, regulations, policies and procedures related to the administration of sunset reviews are inconsistent with
US WTO obligations. The Republic of Argentina reque sts that a panel be established in accordance with
Articles 4.7 and 6 of the DSU to address the specific clai ms related to the US sunset reviews of anti-dumping
duty measure on OCTG from Argentina as set forth below.

A. The Department's Determination to Expedite and the Department's Sunset Determination are
inconsistent with the Anti-Dumping Agreement and the GATT 1994:

1. US laws, regulations, and procedures regarding "expedited" sunset reviews are inconsistent with
Articles 11, 2, 6 and 12 of the Anti-Dumping Agreement. In particular, 19 U.S.C. § 1675(c)(4) and 19 C.F.R. §
351.218(e) operate in certain instances to preclude the Department from conducting a sunset review and making
a determination as to whether termination of an anti-dumping duty measure would be likely to lead to
continuation or recurrence of dumping, in violation of Articles 11.1, 11.3, 11.4, 2.1, 2.2, 2.4, 6.1, 6.2, 6.6, 6.8,
6.9, 6.10, 12.2, 12.3, and Annex II of the Anti-Dumping Agreement. When a respondent interested party is
deemed by the Department to have "waived" participation in the Department's sunset review, US law mandates
that the Department find that termination of the order would be likely to lead to continuation or recurrence of
dumping, without requiring the Department to conduct a substantive review and to make a determination based
on the substantive review.

3 Oil Country Tubular Goods From Argentina: Adequacy of Respondent Interested Party Responses to
the Notice of Initiation, Department of Commerce Memo randum For J. May from E. Cho, No. A-357-810
(22 Aug. 2000).
4 Referred to as "revocation" under US law.
5 Final Results of Expedited Sunset Reviews: Oil Country Tubular Goods From Argentina, Italy,
Japan, and Korea , 65 Fed. Reg. 66701 (7 Nov. 2000) (together with the Department of Commerce Issues and
Decision Memorandum for the Expedited Sunset Reviews of the Antidumping Duty Orders on Oil Country
Tubular Goods From Argentina, Italy, Japan, and Korea, dated 31 October 2000, and incorporated by reference
into the Department's Sunset Determination).
6 Oil Country Tubular Goods From Argentina, Italy, Japan, Korea, and Mexico , Inv. Nos. 701-TA-364
(Review), 731-TA-711, and 713-716 (Review), USITC Pub. 3434 (June 2001); 66 Federal Register 35997
(10 July 2001).
7 Continuation of Countervailing and Antidumping 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).

2. The Department's application of the expedited sunset review procedures in the sunset review of OCTG
from Argentina was inconsistent with Articles 11, 2, 6 and 12 of the Anti-Dumpi ng Agreement because: (1)
Siderca was deemed to have waived its right to participat e in the sunset review, despite its full cooperation with
the Department, in violation of Articles 11.1, 11.3, 11.4, 2.1, 2.2, 2.4, 6.1, 6.2, 6.6, 6.8, 6.9, 6.10, 12.2, 12.3 and
Annex II; (2) the Department did not in fact conduct a "review" within the meaning of Article 11.3; and the (3)
the Department failed to "determine" – as required by Article 11.3 – whether termination of the anti-dumping
order would be likely to lead to continuation or recurrence of dumping.

3. 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 percent of the total exports from Argentina was
inconsistent with Articles 11.1, 11.3, 11.4, 2.1, 2.2, 2.4, 6.1, 6.2, 6.6, 6.8, 6.9, 6.10, 12.2, 12.3 and Annex II of
the Anti-Dumping Agreement.

4. The Department's Sunset Determination is inconsistent with Article 11.3 of the Anti-Dumping
Agreement, and Article X:3(a) of the GATT 1994 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 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).

5. 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 Articles 11.1,
11.3, 2.1, 2.2, and 2.4 of the Anti-Dumping Agreement. The Department's finding in this case that dumping was
likely to recur in the event of termination, and that the likely margin of dumping would be 1.36 percent, is
inconsistent with the standard established by Article 11.3 of the Anti-Dumping Agreement. The Department's
reliance on the 1.36 percent margin from the original investigation cannot support a determination that dumping
would be likely to continue or recur under Article 11.3. In addition, the 1.36 percent margin – calculated on the
basis of the Department's practice of "zeroing" negative dumping margins – cannot support the Department's
Sunset Determination or the Department's Determination to Continue the Order.

B. The Commission's Sunset Determination was inconsistent with th e Anti-Dumping Agreement
and the GATT 1994:

1. The Commission's application of the standard for determining whether the termination of anti-dumping
duty measure would 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 instead 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 examinati on" 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 in jury. 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 violation of Articles 11,
3, and 6. The Commission's findings on these issues do not constitute "positive evidence" of likely injury 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.

3. The US statutory requirements that the Commission determine whether injury would be likely to
continue or recur "within a reasonably foreseeable ti me" (19 U.S.C. § 1675a(a)(1 )) and that the Commission
"shall consider that the effects of revocation or termin ation may not be imminent, but may manifest themselves
only over a longer period of time" (19 U.S.C. § 1675a(a)(5)) are inconsistent with Articles 11.1, 11.3 and 3 of
the Anti-Dumping Agreement.

4. The Commission's application of a "cumulative" injury analysis in the sunset review of the
anti-dumping duty measures on OCTG from Argentina was inconsistent with Articles 11.1, 11.3, 3.1, 3.2, 3.3,
3.4 and 3.5 of the Anti-Dumping Agreement. There is no textual basis in the Anti-Dumping Agreement for
conducting a cumulative injury analysis in an Article 11.3 review. Assuming arguendo that cumulation is
permitted in Article 11.3 reviews, then the Commissi on was required to adhere to the requirements of
Article 3.3 (including those related to de minimis margins and negligible imports) in the Commission's Sunset
Determination. The Commission's cumulative injury analysis in the Commission's Sunset Determination failed
to satisfy the Article 3.3 requirements.

 Argentina also considers that certain aspects of the following US laws, regulations, policies, and
procedures related to the determinations of the Department and the Commission are inconsistent with US WTO
obligations, to the extent that any of these measures mandate action by the Department 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 Implementati on 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 Fi ve-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 review regulations, codified at Title 19 of the United States Code of
Federal Regulations § 351.218; and the Commission's sunset review regulations, 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 the Order
and the above mentioned US laws, regulations, policies and procedures are inconsistent 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.

 Accordingly, Argentina respectfully requests that, pursuant to Article XXIII of the GATT 1994,
Article 6 of the DSU, and Article 17 of the Anti-Dumping Agreement, a panel with standard terms of reference
be established at the next meeting of the Dispute Sett lement Body to examine and find that the measures
identified herein are inconsistent with US obligations under the Anti-Dumping Agreement, the GATT 1994, and
the WTO Agreement. To that end, I would be grateful if this request could be included in the agenda of the
Dispute Settlement Body scheduled for 15 April 2003.

 The above text describes the legal basis of the claims. It does not restrict the arguments that Argentina
may develop before the panel.