Document: WT/DS268/RW Page C-1 ANNEX C SECOND WRITTEN SUBMISSIONS OF PARTIES Contents Page Annex C-1 Second Written Submission of Argentina C-2
Document codes: WT/DS268/RW
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

ANNEX C

SECOND WRITTEN SUBMISSIONS OF PARTIES

Contents Page
Annex C-1 Second Written Submission of Argentina C-2
Annex C-2 Second Written Submission of the United States C-47

I. INTRODUCTION

1. In its First Submission, the United States repeats some familiar themes from the original
Panel proceeding to defend its position that it is now in compliance with its WTO obligations. The
United States ascribes no particular importance to th e temporal obligations of Articles 11.3 and 11.4
of the Anti-Dumping Agreement. Essentially, the US position is that if the US Department of
Commerce ("USDOC") did not get it right the first time, it can simply try again and again. It can
even develop a new evidentiary basis in 2005 to jus tify its 2001 decision to continue the measure; and
it can repeat this process, ad infinitum if necessary.

2. Also, as it did in the Panel proceeding, the Un ited States reminds the Panel several times that
Article 11.3 "prescribes no particular methodology" in making a likelihood of dumping determination.
The United States then clarifies that USDOC came up with a new methodology in the Section 129
Determination: it developed in formation purporting to show "likely past dumping," which USDOC
then used to infer likely dumping in the event of expiry of the measure. The Panel is told not to worry
about the provisions of Article 2 of the Anti-Du mping Agreement and the definition of "dumping"
because the USDOC did not make a dumping determina tion; it considered it "likely" that "dumping"
had occurred in the past.

3. As to procedure and due process rights, the Un ited States agrees that they are important, and
it does not disagree with Argentina's assertion that the disciplines of Article 6 of the Anti-Dumping
Agreement apply to the 2005 Section 129 Determinati on. However, the United States complains that
there was no time to comply fully with these obligations, and blames Argentina for asking the
DSU Article 21.3 Arbitrator to give the United Stat es less than the 15 months that it needed in order
to fulfil all of its obligations, including those of Article 6.

4. With respect to the "as such" violations, th e United States claims that the offending provision
of the statute is now inoperative, and that the USDOC achieved this by writing a regulation that would
require any interested party invoking the statutory wa iver right to confess that it would be likely to
dump in the future. The statute would still mandate a company-specific likelihood of dumping
determination, and that company-specific de termination would still affect the country-wide
determination, but this would not be a problem because the provision could only be invoked by self-
proclaimed likely dumpers.

5. Finally, with respect to Argentina's requ est that the Panel make a suggestion that the
United States terminate the measure, the United States maintains the position from the Panel
proceeding that Argentina is confusing the te rms "recommendation" with "suggestion." Without
addressing the points raised in Argentina's First S ubmission on this point, the United States is sure
that the Panel should not suggest anything.

6. After reviewing the First Submission of the Un ited States, it is clear that this Panel cannot
find the United States to be in compliance with its obligations. In order to find the United States in
compliance, the Panel would have to ignore the te mporal aspects of the Article 11.3 and Article 11.4
obligations. It would also have to condone reliance on a new concept of "likely past dumping." It
would also have to accept the notion that the Arti cle 6 obligations can be overlooked if there is
insufficient time. The Panel would also have to accept that the statutorily-mandated likelihood
finding – as abhorrent as it is to the nature of the Article 11.3 inquiry – will simply remain part of the
law, and that the USDOC's regulation will prevent the law from having any WTO-inconsistent effects.

7. Below, Argentina explains in detail why th e Panel cannot find the United States to be in
compliance with its obligations.

II. THE SECTION 129 DETERMI NATION IS INCONSISTENT WITH ARTICLES 11.3
AND 11.4 OF THE ANTI-DUMPING AGREEMENT BECAUSE USDOC RELIED ON
AN EVIDENTIARY BASIS FIRST DEVELOPED IN 2005

A. CONTRARY TO THE US ARGUMENTS, TH ERE IS TEXTUAL SUPPORT IN THE ANTI-
DUMPING AGREEMENT FOR ARGENTINA'S POSITION THAT USDOC'S DETERMINATION
OF LIKELY DUMPING MUST RELY ON AN EVIDENTIARY BASIS DEVELOPED DURING
THE 2000 REVIEW

8. The United States argues that "Argentina provid es no textual support for the proposition that a
Member is prohibited from collecting new informati on in the course of coming into compliance with
DSB recommendations and rulings."1 It also claims that Argentina's position, distinguishing between
"new" and "clarifying" information, is not clear. 2 The United States then cites to the compliance
panel proceeding, United States – Countervailing Measures C oncerning Certain Products from the
European Communities – Recourse to Article 21. 5 of the DSU by the European Communities ), as
supporting the notion that USDOC's actions in this case are permissible.3

9. The US argument is not tenable, and the United States has not characterized Argentina's
position accurately. Argentina's position is that the United States cannot, in this case, justify its 2001
decision to continue the measure by relying on an evidentiary basis first developed in 2005. For the
reasons discussed below, the Panel can agree with Argentina in this case without resolving the broad
issue that the United States wrongly attributes to Argentina.

10. The facts of this case demonstrate why the actions of the United States are inconsistent with
the text of Articles 11.3 and 11.4. It should be undisputed at this point in the proceeding that the
USDOC could only extend the anti-dumping measure beyond August 2000 if it initiated a review
prior to that time, and if that review had the fo llowing characteristics: US DOC took an active rather
than a passive role; USDOC properly established the facts; USDOC based its determination on
positive evidence that dumping would be likely to c ontinue or recur; USDOC assessed the evidence
objectively and had a sufficient factual basis to a llow it to draw reasoned and adequate conclusions
concerning the likelihood that dumping would continue or recur upon expiry.
4 The USDOC also
could not rely on speculation or conjecture. 5 Under the explicit terms of the Agreement, such a
review and determination is a condition precedent to continuing the measure.6

11. This Panel already has established that the United States did not comply with these
requirements in 2000. As the Panel stated: "[t]he purpose of a sunset review is to examine whether
the facts continue to justify the imposition of an anti-dumping measure. The USDOC, however, did
not engage in that inquiry because it simply relie d on the existence of the dumping margin from the
original investigation."
7 Thus, the Panel accurately observed that the violation in this case is more

1 US First Submission, para. 28.
2 US First Submission, para. 29.
3 US First Submission, para. 28.
4 See Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-
Resistant Carbon Steel Flat Products from Japan, WT/DS244/AB/R, adopted 9 January 1994, paras, 104-105,
111, 113-114 ("US – Corrosion-Resistant Steel Sunset Review").
5 Appellate Body Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country
Tubular Goods from Argentina , WT/DS268/AB/R, adopted 17 December 2004, para. 180 (" US – Oil Country
Tubular Goods Sunset Reviews").
6 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 104.
7 Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular
Goods from Argentina, WT/DS268/AB/R, adopted 17 December 2004, para. 7.219 (" US – Oil Country Tubular
Goods Sunset Reviews "). The Panel also observed that the USDOC relied on a finding "that import volumes
declined following the imposition of the order." Id. at paras. 7.213, 7.221.

than simply reaching a decision that is not reasoned or adequately supported by facts: the facts and
the evidentiary basis were not developed by the USDOC – "it did not engage in that inquiry" – and
USDOC chose to "simply rel[y]" on the existence of the dumping margin from the original
investigation."
8

12. The manner in which USDOC conducted the 2000 review affects what the United States can
do to bring itself into compliance with its obliga tions in 2005. If USDOC had been active, had
properly established a sufficient evidentiary basis, bu t had failed to explain adequately its decision, it
might have been able to bring itself into complianc e with its obligations in 2005 by clarifying that
information, or further explaining its reasoning. In such a case, the authority would have satisfied its
obligation to be active rather than passive, and its obligation to develop a sufficient evidentiary basis
in the review that preceded the continuation of the measure. In other words, the subsequent act of
clarifying the evidence or the reasoning that formed the basis of the determination might not affect the
substance of the authority's obligation.

13. Manifestly, that is not what occurred in this case. The USDOC was passive in its 2000 sunset
review, and "it did not engage in" the type of in quiry required by Article 11.3. The USDOC only
became active in 2005. In doing so, the USDOC found that in 2000 it had developed an insufficient
evidentiary basis for continuing the measure, so no amount of clarification in 2005 of the evidentiary
basis existing in 2000 would have brought the Un ited States into compliance with Articles 11.3 and
11.4 of the Anti-Dumping Agreement.

14. The United States purports not to understand this distinction, as it states: "Argentina does not
explain what it means by a 'new and different fact ual basis,' which is, for Argentina, apparently,
impermissible, and how that is to be distinguished from 'clarifying information it had developed in the
2000 proceeding,' which is, for Argentina, apparently, permissible."
9 For Argentina, the distinction is
clear in this case. In the original sunset proceeding, th e only substantive information that USDOC
developed was (1) pre- and post- order import volum e data, and (2) historical dumping margins. On
this evidentiary basis, USDOC concluded that dumping continued, and it inferred that dumping would
be likely to continue or recur in the future.

15. In 2005, with the USDOC Section 129 Determ ination, the USDOC sought to, and developed
a different evidentiary basis:

• financial statements for the Argentine producers for the period 1995-2000;
• cost information for ten categories of OCTG products;
• a description of each company's sales and marketing processes;
• a statement as to whether the company e xported OCTG to the United States during
the 1995-2000 period;
• confidential import statistics from the US Customs authorities ("CBP");

8 The United States criticizes Argentina's statement that the original Panel found that there was "no
basis for a WTO-consistent determination that dumping would be likely to continue or recur." US First
Submission, para. 22. The United States distinguishes between "no basis" for a WTO-consistent determination,
and an "inadequate factual basis" for a WTO-consistent determination. If there is a distinction between these
phrases, it is not very apparent or meaningful to the resolution of this dispute. The USDOC had an obligation
under Article 11.3 to terminate the anti-dumping measure unless it determined, based on an adequate factual
basis, that dumping would be likely. The Panel found that it did not do that, and therefore, there was no basis
for a WTO-consistent determination to maintain the measure.
9 US First Submission, para. 29.

• observed OCTG selling prices in the US market during the 1995-2000 period from an
industry publication;
• financial statements of US producers; and
• data from Argentine export statistics.

16. There can be no doubt that the evidentia ry basis developed by USDOC in the 2005
Section 129 Determination is "n ew and different" compared with the evidentiary basis that it
developed in the 2000 review. Nor was this ne wly-developed information "clarifying" the
information developed in the 2000 review. USDOC's factual basis for inferring likely dumping in the
2000 review was the 1.36 per cent dumping margin calcu lated in the original investigation, and the
collection of those duties on some imports into the United States. The USDOC Section 129
Determination from 2005 never even mentions the or iginal 1.36 per cent dumping margin. In fact,
USDOC introduces a new theory – one of "likely past dumping" – and uses this new basis to infer that
dumping would have been likely to continue or recu r if the measure had been terminated effective
August 2000.

17. The USDOC could have, in the 2000 review, developed the evidentiary basis it developed in
2005, as it readily admits. All of the information that USDOC developed in 2005 to construct its
evidentiary basis of "likely past dumping" for th e Section 129 Determination (the CBP information,
the US market price information, and all of the financial statements) was available to it during the
2000 review. In fact, the CBP data came from the US Customs authorities, who provided the
information in 2005 in response to a simple requ est from USDOC. But USDOC did none of this in
the 2000 review. The US position befo re this Panel is that it does not matter that the USDOC did not
develop this evidentiary basis in the 2000 review: as long as the USDOC eventually is active rather
than passive in conducting a review, and as long as it eventually develops an evidentiary basis that
contains more than the original dumping margin and the annual export volumes, it has complied with
Articles 11.3 and 11.4.

18. Argentina submits that the USDOC's actions in this case cannot be accepted as being
consistent with the terms of Artic les 11.3 and 11.4. If the substan tive and temporal requirements of
Articles 11.3 and 11.4 are to have any meaning, Me mbers cannot simply choose to do a lax review at
year five, and a different review eventually, if another Member complains.

19. The Panel's decision in US – Countervailing Measures on Certain EC Products
(Article 21.5 – EC) is not inconsistent with the Ar gentina's position before this Panel.
10 A review of
that decision reveals that no party raised the issu e that is now before this Panel: whether it is
appropriate for an administering authority to develop new evidence that it had not previously
developed in the original sunset proceeding and to rely upon that new eviden ce as the basis to justify
the authority's original determination to extend th e measure. For whatever reason, the European
Communities did not argue that such action by USDOC would be inconsistent with the substantive
and temporal requirements of Articles 21.3 and 21.4, the analogous provisions in the Agreement on
Subsidies and Countervailing Measures to Articles 11.3 and 11.4 of the Anti-Dumping Agreement.
The failure to challenge this basis meant th at the European Commun ities accepted that the
continuation of the countervailing du ty measure beyond five years could be justified at a later time,
and with an evidentiary basis that the authorities di d not develop at the time to invoke the "exception"
to continue the measure. In contrast, Argentin a does not accept this view of the substantive and

10 Panel Report, United States – Countervailing Measures Concerning Certain Products from the
European Communities – Recourse to Article 21 .5 of the DSU by the European Communities , WT/DS212/RW,
adopted 27 September 2005 ("US – Countervailing Measures on Certain EC Products (Article 21.5 – EC)").

temporal requirements of Articles 11.3 and 11.4 of the Anti-Dumping Agreement, as applied to this
particular sunset review.

20. In US – Countervailing Measures on Cert ain EC Products (Article 21.5 – EC ), the new
information was offered by the respondent parties, a nd the Panel limited itself to the issue of whether
the authorities had an obligation to consider factual evidence provided to it.
11 Finding that the
authority has an obligation to consider evidence provi ded by the parties is not the same as saying that
the authority has the right to deve lop the requisite evidentiary basis at any time, regardless of what it
did in the original sunset review, and irrespective of the obligations of Articles 11.3 and 11.4.

21. The USDOC did not develop the requisite factua l basis to conclude that dumping continued in
the original sunset proceeding. Rather, it inferred from the original dumping margin and the payment
of a small amount of dumping deposits that dumping had continued, and it inferred from that
inference that dumping was likely to continue or recur upon expiry.
12 It failed completely at the time
of the original sunset determination to create an evidentiary basis to demonstrate continued dumping,
and therefore had no basis for its inference that dumping would continue or recur in the future.

22. Finally, the assertion that USDOC's actions we re somehow approved by the Arbitrator in the
DSU Article 21.3 proceeding is wrong. The United States argues, without citation, that "[t]he
Arbitrator sought to ensure that Commerce would conf ine its collection of information to the original
period of review – not that Commerce would be prevented from collecting new information about that
period."
13 The Report from that proceeding shows that the Arbitrator questioned the United States
about its assertion that it had to proceed in seriatim with the implementation processes to address the
"as such" and "as applied" violations. The Arb itrator's Report indicates that there was a line of
questioning regarding "the process of reassessing th e evidence on record for a factual determination
by the USDOC to remedy the 'as applied' violation." At the end of that discussion, the Arbitrator's
Report notes that "[t]he United States emphasizes that this does not, however, mean that the USDOC
would engage in a de novo sunset review determination."14 The United States appears to take the view
that it avoided such a de novo sunset review simply by restricting the period to certain years
(1995-2000). But this is only the view of the United States, and nothing in the Arbitrator's decision
suggests that the Arbitrator endorsed or agreed with the US position.

B. ARTICLES 11.3 AND 11.4 MUST NOT BE INTERPRETED IN A MANNER THAT WOULD
LEAD TO AN ABSURDITY

23. The Panel will need to interpret Articles 11. 3 and 11.4 of the Anti-Dumping Agreement in
order to determine whether the United States has achieved compliance through the 2005 Section 129
Determination and the evidentiary basis developed in 2005. Argentina respectfully submits that
Articles 11.3 and 11.4 must be interpreted so th at these provisions have meaning, and that the
meaning does not lead to absurd results.

24. Article 3.2 of the DSU reaffirms that the ro le of the WTO dispute settlement system is to
"clarify the existing provisions of those agre ements in accordance with customary rules of

11 Panel Report, US – Countervailing Measures on Certain EC Products (Article 21.5 – EC) ,
para. 7.254.
12 To be precise, this was the explanation provided by the United States in the Panel proceedings. In
fact, there was no reference in DOC's 2000 decision to the collection of anti-dumping deposits as the basis for
the USDOC's conclusion that dumping had continued. See USDOC Issues and Decision Memorandum for the
Sunset Reviews of the AD Orders on Oil Country Tubular Goods from Argentina, Italy, Japan, and Korea
(31 Oct. 2000) (ARG-8).
13 US First Submission, para. 30 (emphasis in original).
14 See Award of the Arbitrator, United States – Sunset Reviews of Anti-Dumping Measures on Oil
Country Tubular Goods from Argentina, WT/DS268/12, ARB-2005-1/18, 7 June 2005, para. 38.

interpretation of public international law." The general rules of interpretation of the Vienna
Convention require a panel to interpret treaty provis ions in good faith in accordance with their
ordinary meaning, in their context, and in light of the treaty's object and purpose. 15 The treaty
language defines the extent of Members' rights and obligations, and a central tenet of treaty
interpretation is that "interpretation must give mean ing and effect to all the terms of a treaty. An
interpreter is not free to adopt a reading that would result in reducing whole clauses or paragraphs of a
treaty to redundancy or inutility."16

25. Based on the text of Articles 11.3 and 11.4, as clarified by the Appellate Body, Argentina had
a right to termination of the anti-dumping order on OCTG from Argentina. The United States could
continue the measure only by making findings cons istent with Article 11.3 of the Anti-Dumping
Agreement. The temporal limitations contained in Articles 11.3 and 11.4 would indeed be rendered
meaningless if a Member has limitless opportunities to satisfy the obligations to develop the necessary
evidentiary basis to make these findings.

26. The Panel can avoid this situation by properl y interpreting the terms of Articles 11.3 and 11.4
so that the substantive and temporal requirements therein have meaning. The Panel should find that,
on the facts of this case, the United States acted inc onsistently with its obligations under Article 11.3
and 11.4 by basing its 2005 likelihood determinatio n on factual evidence that USDOC developed in
2005, and which was not developed during the original sunset review in 2000. Similarly, as for the
USDOC's statement that it also relied on its position from the original sunset review that the post-
order volume decline created a basis for inferring that dumping would be likely to continue or recur,
this was an insufficient basis to support the 2000 likelihood determination and also cannot support the
2005 likelihood determination in violation of Article 11.3.

27. The Panel also can assist in the resolution of this disput e by exercising the discretion
conferred by the Agreement to issue a suggestion that the United States terminate the measure at issue
in this case, which Argentina addresses in section VII of this Second Submission.

III. ASSUMING ARGUENDO THAT USDOC CAN RELY ON AN EVIDENTIARY BASIS
FIRST DEVELOPED IN 2005, THE US DOC SECTION 129 DETERMINATION
FAILED TO BRING THE UNITED STATES INTO COMPLIANCE WITH THE
RULINGS OF THE DSB AND IS ALSO INCONSISTENT WITH US WTO
OBLIGATIONS

28. Assuming arguendo that USDOC can rely on an evidentiary basis first developed in 2005 to
satisfy the Article 11.3 obligation, the USDOC Section 129 Determination failed to bring the
United States into compliance with the rulings of the DSB, and it is also inconsistent with US WTO
obligations for the reasons set forth below.

15 Vienna Convention on the Law of Treaties, Art. 31, adopted 22 May 1999, 1555 U.N.T.S. 331.
16 Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline ,
WT/DS2/AB/R, adopted 20 May 1996, at 23; Appellate Body Report, United States – Import Prohibition of
Certain Shrimp and Shrimp Products, WT/DS58/AB/R, adopted 6 November 1998, para. 121.

A. THE STATED BASES FOR THE USDOC SECT ION 129 DETERMINATION AND THE PANEL'S
STANDARD OF REVIEW

29. The United States asserts that the Section 129 Determination "was based on the Argentine
respondents' submissions, their financial stat ements, and on independe nt sources of data." 17 The US
First Submission states that USDOC's "country-wide" likelihood determination in 2005 rests on the
following:

• a finding that Acindar, a minor Argentine producer was "likely dumping during the
sunset period," from which USDOC inferred that Acindar would likely dump in the
future if the order were revoked;
18
• a lack of any findings whatsoever regarding Siderca19, the dominant Argentine OCTG
producer, the only company ever investigated during the sunset period, and the only
company for which a dumping margin (the ma rgin from the original investigation)
was calculated; and
• an inference that dumping would be likely to continue or recur based on the post-
order decline in OCTG imports to the United States.
20

The United States repeats several times in its Firs t Submission that "Article 11.3 'does not expressly
prescribe any specific methodology for investigat ing authorities to use in making a likelihood
determination in a sunset review.'"21

30. This Panel must determine whether the USDOC Section 129 Determination based on these
findings and the underlying analysis brings the United States into compliance with its WTO
obligations. In doing so, the Pa nel must conduct a thorough and searching review of the USDOC's
analysis and findings. This is so not only because of the Panel's general ob ligations under Article 11
of the DSU, but also because of the nature of the Ar ticle 11.3 obligation. As stated by the Appellate
Body in its recent report:

The standard of review to be applied in a given case is also a function of the
substantive provisions of the specific covere d agreements that are at issue in the
dispute.
22
31. This Appellate Body clarifica tion of the relevant standard of review, made in the context of
an appeal arising from an Article 21.5 Panel's d ecision affirming a US Section 129 Determination,
specifically spoke to the considerations when assess ing the authorities' determinations "as to likely
future occurrences." 23 As is clear from the text of Article 11.3, the question of "likely future
occurrences" is similarly at the heart of the Ar ticle 11.3 determination. Also, the Section 129
Determination under review relies heavily on inferen ces regarding future occurrences. These factors

17 US First Submission, para. 26.
18 See US First Submission, paras. 40-42; see also Section 129 Determination: Final Results of Sunset
Review, Oil Country Tubular Goods from Argentina, A-357-810 (16 Dec. 2005) ("USDOC Section 129
Determination") at 7, 8, 10 (ARG-16).
19 US First Submission, paras. 2, 44, 74, 82.
20 USDOC Section 129 Determination at 11 (ARG-16).
21 US First Submission, para. 36 (citing Appellate Body Report, US – Corrosion-Resistant Steel Sunset
Review, para. 123); see also US First Submission, paras. 40, 46.
22 Appellate Body Report, United States – Investigation of the International Trade Commission in
Softwood Lumber from Canada, Recourse to Article 21.5 of the DSU , WT/DS277/AB/RW, circulated on
13 April 2006, para 95 ("US – Lumber ITC Investigation (Article 21.5 – Canada)").
23 Appellate Body Report, US – Lumber ITC Investigation (Article 21.5 – Canada), para. 96.

require the Panel to be especially careful in revi ewing the establishment of the facts in this case,
USDOC's assessment of those facts, and the inferences from the facts.

32. As the Appellate Body summarized in US – Lumber ITC Investigation (Article 21.5 –
Canada), a panel reviewing a determination of "likel y future occurrences" must determine whether
the investigating authority has provided "a reasoned and adequate explanation" of: (a) how individual
pieces of evidence can be reasonably relied on in support of particular in ferences, and how the
evidence in the record supports its factual findings; (b) how the facts in the record, rather than
allegation, conjecture, or remote possibility, support and provide a basis for the overall threat of injury
determination; (c) how its projections and assump tions support a showing of likelihood; and (d) how
it examined alternative explanations and interpretations of the eviden ce and why it chose to reject or
discount such alternatives in coming to its conclusions.
24

33. Finally, the Appellate Body observed that:

[T]he injunction that panels should not subs titute their own conclusions for those of
the competent authorities does not mean that all a panel needs to do in order to
comply with its duties when reviewing a de termination is to consider whether the
investigating authority's findings or conc lusions appear to be "reasonable" or
"plausible" in the abstract. To the contra ry, a panel can assess whether an authority's
explanation for its determina tion is reasoned and adequate only if the panel critically
examines that explanation in the light of the facts and the alternative explanations that
were before that authority.
25
34. As is explained in sections B-D below, the USDOC Section 129 Determination cannot be
upheld under this standard of review. Also, the United States seeks to insulate the volume basis from
challenge in this compliance proceeding by asserti ng that "Argentina has offered no argument as to
why the finding regarding import volumes, which is an incorporation of an element of the original
determination, is a measure taken to comply." 26 This argument is baseless and is addressed in
Section D.2 below.

B. USDOC'S FINDINGS REGARDING ACINDAR ARE INCONSISTENT WITH US WTO
OBLIGATIONS

35. In the Section 129 Determination, the USDOC stated that "we find that Acindar likely was
dumping subject OCTG during the original sunset period." 27 The US First Submission confirms that
on this basis, the USDOC concluded that Acindar was likely to dump if the order were revoked.28

36. There are serious flaws with the USDOC's an alysis and conclusions regarding Acindar, and
the arguments advanced by the United States in suppor t of the determination are without any merit.
First, the USDOC employed a legally deficient standard in reaching its conclusions that is inconsistent
with requirements of the Anti-Dumping Agreement. Such speculation about the past sales is not
permissible. Second, none of the USDOC's analys is and conclusions constitute positive evidence of
"likely" dumping, whether in the past or in the future. Third, the conclusions reached by USDOC
cannot be considered unbiased and objective.

24 Appellate Body Report, US – Lumber ITC Investigation (Article 21.5 – Canada), para. 98.
25 Appellate Body Report, US – Lumber ITC Investigation (Article 21.5 – Canada), para. 99.
26 US First Submission, para. 34.
27 USDOC Section 129 Determination at 7 (ARG-16).
28 US First Submission, para. 48.

1. USDOC "Likelihood" Determination Based on a "Likelihood" of Dumping Finding
Regarding Past Sales Was Inconsistent With Article 11.3 of the Anti-dumping
Agreement

37. In its First Submission, Argentina explaine d that the USDOC employed an incorrect legal
standard in assessing information regarding Acindar. The US First Submission concedes, as it must,
that its finding regarding Acindar was one of lik ely past dumping: "that Acindar likely was dumping
during the [original sunset review] period."
29

38. Also, the US First Submission reveals that this attempt to establish likely past dumping was
the objective of requesting cost data from the par ties. Referring to the purported unreliability of
Siderca's data, the United States explained that th e data problems frustrated the attempts to make
"findings regarding specific instances of likely dumpi ng by Siderca during the original sunset review
period."
30

39. Thus, it could not be clearer that USDOC ma de findings about what was "likely" to have
happened during the sunset review period (1995 to 2000), and then inferred likely dumping from what
was likely to have happened. As the US First Submission explains:

Commerce examined whether [the Argentine exporters ] would likely dump in the future using past
data as a predictor. . . . If Acindar was likely dumping while an order was in place, then, in the
absence of evidence to the contrary, it would likely continue to do so if the order were revoked.
31

40. This is very different from the Appellate B ody's recognition in previous cases that dumping
margins could be relevant and coul d have probative value for purpose of a determination under
Article 11.3.
32 There is a material difference between actual dumping in the past and the concept the
United States describes as " likely" past dumping. The former is subject to the disciplines of Article 2
and Article 9 (in the event of an administrative review). The latter does not even exist under the Anti-
Dumping Agreement.

41. Despite the frequent repetition by the Unite d States that "no methodology is prescribed" in
Article 11.3 reviews,
33 Article 11.3 is not without disciplines. The word "dumping" has a specific
meaning in Article VI of the GATT 1994 and in the Anti-Dumping Agreement, and the Appellate
Body already has clarified that the meaning of "dum ping" in Article 11.3 is the same as the meaning
of the term in Article 2:

[T]he words "[f]or the purpose of this Agre ement" in Article 2.1 indicate that this
provision describes the circumstances in which a product is to be considered as being
dumped for purposes of the entire Anti-Dumping Agreement, including Article 11.3.
This interpretation is supported by the fact that Article 11.3 does not indicate, either
expressly or by implication, that "dumping" has a different meaning in the context of
sunset reviews than in the rest of th e Anti-Dumping Agreement. Therefore,
Article 2.1 of the Anti-Dumping Agreement and Article VI:1 of the GATT 1994
suggest that the question for investigating authorities, in making a likelihood
determination in a sunset review pursuant to Article 11.3, is whether the expiry of the
duty would be likely to lead to continuation or recurrence of dumping of the product

29 US First Submission, para. 41.
30 USDOC Section 129 Determination at 9 (ARG-16).
31 US First Submission, para. 42.
32 See, e.g., Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 208.
33 US First Submission, paras. 36, 40, 46.

subject to the duty (that is, to the introdu ction of that product into the commerce of
the importing country at less than its normal value).34
42. Consequently, if USDOC is going to infer likely "dumping" from some past action, that past
action must be probative of "dumping," which is a defined term under the Anti-Dumping Agreement.

43. The United States, aware of past cases in which it has been reminded of the consistent
meaning of "dumping" throughout the Anti-Dumping Agreement, stresses that it is not calculating a
dumping margin.
35 The Panel should reject this position firmly . It is clear what the USDOC is doing
here: knowing that it has no evidence of actual dumping, and knowing that it cannot calculate a
margin consistently with Article 2, it seeks to co mply with Article 11.3 by doing another type of
comparison (a comparison of export prices to observed market prices in the country of destination) to
conclude that that comparison is sufficient to show "likely past dumping," and then repeat the
statement that Article 11.3 prescribes no methodology. The flaw is that the approach disregards the
meaning of the term "dumping" for purposes of the Anti-Dumping Agreement.

44. Also, the flimsy nature of the likely p ast dumping finding invalidates the inferences that
USDOC draws from the finding. In US – Corrosion-Resistant Steel Sunset Review , the Appellate
Body explained that that "[i]n view of the use of the word 'likely' in Article 11.3, an affirmative
likelihood determination may be made only if the evidence demonstrates that dumping would be
probable if the duty were terminated – and not simply if the evidence suggests that such a result might
be possible or plausible."
36

45. The Appellate Body endorsed the view that "[t]he requirement to make a 'determination'
concerning likelihood therefore precludes an investigating authority from simply assuming that
likelihood exists."
37 In conducting this inquiry, "an investig ating authority must have a sufficient
factual basis to allow it to draw reasoned and ade quate conclusions concerning the likelihood of such
continuation or recurrence. 38 The Section 129 Determination does not satisfy the standards of
Article 11.3.

46. The United States also claims, incorrectly, that "there were no administrative reviews
conducted" in the case, so that "Commerce had to use available data gathered during the Section 129
proceeding to determine whether dumping likely occurred during the period . . . ."
39 The statement is
factually incorrect because, as the Panel knows, successive reviews of Siderca were initiated, but none
led to a dumping calculation because Siderca dem onstrated that it did not export OCTG to the
United States during the relevant period. 40 This passage also demonstr ates the flawed approach to
Article 11.3: rather than inferring from the absen ce of reviewable shipments that there may be no
positive evidence of dumping or likely dumping, the United States explains that USDOC "had to use
available data" to determine whether dumping occurred.

47. The United States finds it "telling that Argentina never argues that Acindar did not dump its
product during the period, only that there had not yet been a review of Acindar . . . ."
41 There is

34 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 109.
35 US First Submission, para. 46.
36 Appellate Body Report, US - Corrosion-Resistant Steel Sunset Review, para. 11.
37 Appellate Body Report, US - Corrosion-Resistant Steel Sunset Review, para. 114. After quoting this
passage, the Appellate Body stated tha t: "The Panel's description of the ob ligations of investigating authorities
in conducting a sunset review closely resembles our own, and we agree with it." Id., para. 115.
38 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 114.
39 US First Submission, para. 47.
40 See Argentina's first written submi ssion (15 Oct. 2003) from the or iginal panel proceeding at
paragraphs 21-22.
41 US First Submission, para. 48.

nothing "telling" at all. Argentina understands that "dumping" is a defined term under the Anti-
Dumping Agreement, and that no Member can say whether a company was dumping or not during a
particular period without determining whether the essential elements of that term have been satisfied.
The fact remains; there was no evidence of "dumping" by Acindar during the sunset period.

2. The Evidence Developed By USDOC Does No t Constitute Positive Evidence of Likely
Dumping and USDOC's Conclusions Cannot Be Considered Unbiased or Objective

48. Argentina explained in detail the flaws w ith USDOC's approach in its First Submission.
42
The USDOC relied on specific import prices of Acindar's OCTG based on US Customs and Border
Protection data. These prices were considered by the USDOC to be too low when compared to
observed selling prices in the US market, as reported in a publication known as Preston Pipe & Tube
Report.
43

49. The USDOC's comparison of FOB export pri ces to US market selling prices for groupings of
OCTG does not constitute an objective examination of whether dumping occurred, and is not positive
evidence to support a WTO-consistent determination that dumping would be likely to continue or
recur in the future.

50. The USDOC's approach in this regard is not in accord with determinations of "dumping"
under Article 2. As Argentina explained in its Fi rst Submission, and which points the United States
failed to rebut:

First
, Article 2 does not define dumping in terms of a comparison between export
prices and market prices prevailing in the market of the importing country . It is a
basic principle of Article 2 – and Article VI of GATT 1994 – that dumping is defined
by the comparison of the export price to a normal value in the country of export (or to
another export price, or to a constr ucted value). The USDOC provides no
explanation why it is probative evidence of "likely" dumping.
Second, USDOC's comparison of Acindar's US shipments to prevailing US market
prices did not involve any product-speci fic comparison. Rather, the USDOC
compared prices for specific Acindar transactions to prices of "carbon casing,
welded" as reported by Preston Pipe & Tube Reports. However, that publication does
not report prices by specific size of pipe, and it does not discriminate between plain
end and casing that is threaded and coupled. As Siderca explained in its responses,
these variables affect cost and price, a nd any comparison that does not account for
these differences is suspect and there was no control for any of the physical
characteristics of the products being compared which (as explained in submissions by
Siderca) affect the price and cost of OCTG products.
Also, the prices reported in Preston Pipe & Tube Report are prices to the final
customers in the United States; that is, they are prices reported on the basis of a
specified delivery point in the United Stat es. The prices that USDOC obtained from
USCBP presumably are stated on a different basis; most likely, FOB port of export,
which in the case of Acindar would be Arge ntina. The record of the Section 129
proceeding contains no indication that US DOC exercised any care to eliminate the
obvious distortion that would be implicit in any such comparison.
44

42 Argentina's First Submission, paras. 110-117.
43 USDOC Section 129 Determination at 7 (ARG-16).
44 Argentina's First Submission, paras. 112-114.

The United States does not answer these specific arguments.

51. Given the importance assigned by the United St ates to this comparison performed by the
USDOC – it is the basis for the conclusion that Aci ndar "likely" had dumped, which the United States
explains was one of the bases for the country-wid e determination of likely dumping – the Panel will
have to review the comparison in detail. Argen tina has not seen the details of this comparison
because it is contained in documents that the USDO C has designated as confidential under its system.
Thus, the documents are available only to the au thorized legal representatives involved in the
proceeding, and to the officials of the United Stat es Government. As the United States continues to
rely on this comparison as a basis for its conclusi on that Acindar likely was dumping, Argentina will
ask that the Panel request under Article 13 of the DSU that the United States provide the necessary
documents for review by the Panel and Argentina.
45

52. In US – Lead and Bismuth II , the Panel affirmed that it had the right to seek, and the
United States had an obligation to provide, data designated as business proprietary information in a
proceeding before the US Department of Commerce. Although (based on the facts of that particular
case) the Panel found that it did not need to request this information, it left no doubt about the law on
this issue:

…the United States asserted that such information "was submitted … as business
proprietary information, and USDOC is therefore precluded by US law from
divulging it."
We note that, by virtue of Article 13 of the DSU, a panel has authority to seek
information and technical advice from "any individual or body" it may consider
appropriate, or from "any relevant source." The "comprehensive nature" of this
authority was emphasized by the Appellate Body in United States - Shrimp . In
Canada - Measures Affecting the Export of Civilian Aircraft , the Appellate Body
explicitly stated that a panel has the authority to seek information from "any Member,
including a fortiori a Member who is a party to a dispute before a panel."
Thus, if we consider it appropriate, there is no doubt that we have the authority to
request information…from the United States. In particular, we are not persuaded that
the proprietary nature of the informa tion precludes us from requesting (or the
United States from submitting) the informa tion, since it is open to the Panel to
implement special procedures to protect proprietary information.
46
53. Moreover, there was no factual basis for inferring that Acindar was "likely dumping" during
the original sunset period. Acindar was never inv estigated during the original investigation, and the
company had no prior history of dumping. As Acindar explained, it is principally a producer of steel
long products (e.g., bars, wire rod, structural steels), and the company did not even produce any
OCTG until 1998, more than half-way through the sunset review period. 47 Acindar was never a

45 The relevant documents are provided in non-confidential summary form as ARG-18 and ARG-23.
Argentina and the United States atte mpted to reach an agreement that would allow these documents to be
provided to the Panel without resort to DSU Article 13 , but the parties could not reach agreement. Argentina
stresses the importance of the need for th e Panel to review these documents. This is necessary in order to avoid
questions later as to whether the Panel fulfilled its obliga tions under DSU Article 11. Argentina also intends to
file under separate cover its request that the Panel reque st, pursuant to its authority under DSU Article 13, that
the United States provide these documents to the Panel.
46 Panel Report, United States – Imposition of Countervailing Duties on Certain Hot-Rolled Lead and
Bismuth Carbon Steel Products Originating in the United Kingdom , WT/DS138/R and Corr.2, adopted
7 June 2000, as upheld by the Appellate Body Report, WT/DS138/AB/R, paras. 6.4-6.7 (emphasis added).
47 Acindar's Response to Questionnaire (30 Nov. 2005) at 1 (ARG-14).

significant producer of OCTG, and its OCTG pr oduction was inconsequential in terms of the
company's total production, representing less than one per cent of Acindar's total production during
this time. USDOC gave no consideration to these factual statements.

54. Finally, the United States completely distorts Argentina's position with respect to its use of
financial statements in the Section 129 Determinati on, attributing to Argentina the view that the
financial statements should not be used "because th ey are not probative of the state of the OCTG
industry."
48 Financial statements, of course, are st andard fare in anti-dumping cases, and Argentina
has no reason to oppose the legitimate use of financial statements. But, as explained in Argentina's
First Submission, the USDOC has distorted and misused the information from the financial
statements in this case. USDOC attributes statem ents about Acindar's gene ral financial performance
to a product, OCTG, that never comprised mo re than 0.005 of the company's operations. 49 USDOC
ignores information from Acindar's financial statem ents that showed a profitable tubular products
division50, considering only the financial statements from the years corresponding to low profits in the
OCTG industry, while ignoring the financial statem ent at the end of the period that specifically
discusses the turnaround in the sector that USDOC says does not exist. 51 USDOC also ignores
Siderca's discussion of the financial statements to explain the volume decrease and the reasons why
dumping was not likely to continue or recur. 52 This is not an objective assessment of the information
provided in the companies' financial statements.

3. USDOC's Reference to Acindar's 60 per cent Margin

55. The United States claims in the first paragra ph of its First Submission that its decision must
be in conformity with its WTO obligations; after all, Acindar was found to be dumping in the review
examining the sixth year after the imposition of the measure.
53 There are a number of problems with
this statement, and the underlying logic demonstr ates that the United States still does not understand
its Article 11.3 obligations.

56. First, there is no reference to the review of Acinda r's post-sunset period shipments in the
Section 129 Determination . The importance of this point ca nnot be overstated: even though the
USDOC developed a new and different evidentiary b asis in 2005 for its Section 129 Determination, it
did not even mention its review of Acindar. And, of course, the fact was never mentioned in the
original 2000 sunset review, because the ev ent had not even occurred until March 2003.
54 Under no
possible view of the record is this alleged evidence part of the "measure taken to comply."

57. The United States knows all of this, which pr esumably is why the references in its First
Submission are not tied to the record of the Section 129 proceeding. The United States hopelessly
contradicts itself. It tells the Panel that it unde rstood that it had to confine itself to the 1995-2000
period
55, and it, in fact, did confine its fact-finding to th is period. Then the United States justifies its
decision to this Panel by referring to this event, which unquestionably occurred after the established
period.

58. It is also wrong to say that this 2003 ev ent establishes that Acindar was "dumping" for the
purposes of a sunset review. As stated by the A ppellate Body, an authority relying on a dumping

48 US First Submission, para. 49.
49 Argentina's First Submission, paras. 116, 119; see also ARG-28 (Letter from Acindar to USDOC).
51 Argentina's First Submission, paras. 99, 101.
52 Argentina's First Submission, paras. 102 – 106; see also discussion in Section III.C.
53 US First Submission, paras. 1, 41.
54 Oil Country Tubular Goods Other Than Drill Pipe, 68 Fed. Reg. 13,262 (19 Mar. 2003) (US-3).
55 US First Submission, para. 30.

margin in an Article 11.3 review must ensure that the dumping margin complies with Article 2. 56
Even the most cursory review of the 2003 decision shows that the United States would not be able to
show conformity with Article 2. The USDOC cal culated Acindar's constructed value by adding
Siderca's profit margin to Acindar's cost, in clear violation of Article 2.2.1. Also, as the European
Communities points out in its Third Party Submissi on, the calculation may have used impermissible
"zeroing".
57

59. In fact, the US decision to resort to this tactic highlights the lack of positive evidence
supporting its determination to continue the measu re. Accepting the US view would mean that a
Member could determine that dumping is likely to con tinue or recur without an evidentiary basis, and
then "comply" with its obligations by making a subsequent finding that dumping occurred. That
cannot be the meaning of Article 11.3.

60. Finally, if USDOC were to use post-2000 info rmation, principles of objectivity and fairness
would require it to use all post-2000 information related to Acindar. The record contains unrebutted
information that Acindar stopped producing OCTG in 2001. If USDOC is going to use post-2000
information for its determination, the fact that Acindar no longer produced OCTG after 2001 is
positive, probative information that the USDOC would have to consider in making its determination
whether the expiry of the duty would be likely to lead to continuation or recurrence of dumping.

C. USDOC'S FINDINGS REGARDING SIDERCA ARE INCONSISTENT WITH US WTO
OBLIGATIONS

61. With respect to the information submitted by Siderca, the United States answers that it was
"not germane to the ultimate determination" and im plies that it therefore could not be inconsistent
with Article 11.3. 58 The US statement is based on two stated reasons: 1) that USDOC made no
findings regarding Siderca; and 2) because an Ar ticle 11.3 determination is made on "an order-wide
basis," the United States implies that it alread y had a sufficient basis for its "country-wide"
determination (the finding regarding Acindar's likely past dumping, and the inference arising from the
volume decline) so that it was free to disregard Siderca's information.59

62. These explanations are not convi ncing, and should not be accepte d by the Panel. First, the
information provided by Siderca certainly was "g ermane" to the Article 11.3 determination.
Information provided by the major producer in the country is, by definition, germane to a "country-
wide" determination of whether future exports are likely to be dumped.60

63. Argentina invites the Panel to look closely at the information that Siderca submitted to the
USDOC in response to the questionnaire. 61 Siderca provided two types of information: 1) the cost

56 Appellate Body Report, US – Corrosion Resistant Steel Sunset Review, paras. 109, 127.
57 See Written Observations by the European Communities, 26 April 2006, para. 18.
58 US First Submission at 44.
59 US First Submission at 44.
60 The factual record developed by USDOC shows without a doubt that Siderca was the major OCTG
producer. The Argentine Steel Chambre indicated that the only OCTG producer it could confirm during the
period was Siderca. See ARG-18, Appendix 1 (Letter from Embassy of Argentina to USDOC). Siderca's
response indicated that it sold appr oximately 300,000 metric tons of OC TG each year during the five year
period, while Acindar explained that it had not produced any OCTG until 1998, that it produced OCTG for only
a brief period and only a small quantity specific products neve r amounting to more than 5,000 metric tons a
year, and that it ceased pr oduction of OCTG in 2001. See ARG-14 and ARG-28. This is consistent with, and
provides relevant context for, Siderca's statement in th e 2000 review that "[t]o Siderca's knowledge, there is no
other producer of OCTG in Argentina." Substantive Response of Siderca to USDOC's Initiation of Sunset
Review of the AD Order on OCTG from Argentina (2 Aug. 2000), at 3 (ARG-9).
61 Siderca's Response to Questionnaire (ARG-15).

information in response to the USDOC's questions; and 2) information regarding its commercial and
production operations from its financial statements. The cost data was germane because it is the
information that the USDOC chose to develop; that is, it is part of the evidentiary basis that the
USDOC chose to develop to make its Section 129 Determination. Argentina agrees that it was not the
best line of inquiry for the USDOC to follow, or the best evidentiary basis for what is required to be a
prospective determination of likely dumping. The United States explains that it was trying to
determine whether dumping occurred in the past, duri ng the original sunset period. However, as
Argentina and several of the Third Parties have pointed out, the USDOC asked the exporters for
information that was only indirectly relevant to a de termination of "dumping" as that term is defined
in the Anti-Dumping Agreement.
62

64. The cost data is the information requested by the USDOC and Siderca provided information
to the best of its ability, a fact which has not been disputed. 63 In addition, Siderca explained to the
USDOC that the data supported the view that Sider ca would not be likely to dump in the future, as it
showed that Siderca had achieved certain efficienci es even in difficult market times and was able to
sell its products at above its cost of production. 64 In other words, this was positive evidence that the
major Argentine producer was able to sell at prices that exceeded its costs, and that its production
efficiency had increased throughout the sunset peri od. The evidence tended to disprove the notion
urged by the US industry in the Section 129 determination that Siderca was a "global dumper".65

65. Simply because the information is not what th e authority expected does not mean that it can
be disregarded, or that it is not germane to the aut hority's determination. Of course, if the information
is inaccurate, an authority could be excused from considering the information. But, inaccuracy of the
data is something that needs to be demonstrated. As Argentina pointed out in its First Submission,
there were several problems with USDOC's c onclusions that Siderca's data was flawed.
66 T h e
United States responds to none of these in its First Submission. Its only defence is offered in response
to Argentina's claim that the Unite d States also violated Article 6.6, where it explains that it had
sufficiently explained in the three paragraphs of the Section 129 determination its basis for finding the
flaws in Siderca's data. But this is not an answer to the specific deficiencies raised in Argentina's First
Submission. It is simply a dodge, and a restatement of what the USDOC has already said.67

62 See Third Party Submission of China, paras. 22-25; Third Party Submission of Mexico, paras. 4-5;
Written Observations by the European Communities, para. 17.
63 The United States claims in its First Submission that "none of the Argentine respondents provided
Commerce with actual cost data for the period of review, stating that they had not retained it. Siderca had
provided estimated data by using one month's worth of its costs of production for October 2005 and extrapolated
what costs during the five year period would have been." US First Submission, para. 39. This is not an accurate
description of what the major producer, Siderca, did in the Section 129 proceeding. As explained it Siderca's
response to USDOC's questionnaire (ARG-15), which included as Attachment 4 a detailed description of
Siderca's cost methodology. Siderca provided actual cost data for the 1995- 2000 period. This actual cost data
was based on: (1) Operational Cost Reports for the major production lines involved in OCTG production for
June 1995 / 1996 / 1997 / 1998 / 1999 /2000 (as Siderca explained, June is the last month in the company's cost
budgeting period, so that the June reports contained cumu lative cost data for an entire year); (2) all fixed costs
that were taken directly from the audited financial stat ements for each year; (3) a ll general and administrative
expenses were taken directly from the audited financial statements for each year; and (4) all financial expenses
were taken directly from the audited financial statements for each year. It is simp ly incorrect for the United
States to state that Siderca did not provide "actual cost data for the period of review." See Siderca's Response to
Questionnaire, at pages 2-6 and Attachments 2 and 4 (ARG-15).
64 Siderca's Response to Questionnaire at pages 2-10 (ARG-15).
65 Letter from Skadden, Arps, Slat e, Meagher & Flom LLP to USDO C, 2 Dec. 2005, at 4 (Public
Version) (ARG-27).
66 Argentina's First Submission, paras. 75-95.
67 The relevant document is provided in non-confidential summary form as ARG-21. As noted above,
Argentina and the United States could not reach an agreem ent that would allow these documents to be provided
to the Panel without resort to DSU Article 13. Argentina stresses the importance of the Panel to review these

66. With respect to the other information th at Siderca provided (commercial and production
information based on its financial statements), th e United States repeats the approach of the USDOC
Section 129 Determination. It says nothing. Argentin a also explained that certain of that information
contradicted the USDOC's finding that the record contained no in formation of a turnaround in the
OCTG market.68 Again, the US First Submission offers no response. It is incomprehensible that such
statements and information could be deemed "not germane" to a country-wide analysis of whether
dumping is likely to continue or recur.

67. The Panel should also be concerned with the abu se of the "country-wide" concept. It is clear
from the Section 129 Determination and the US Firs t Submission that the "country-wide" nature of
the Article 11.3 determination is being used as an excuse to avoid doing a substantive analysis of the
data. According to the United States, it need not consider the information provided by the major
producer of OCTG in Argentina because it has devel oped, in its view, an evidentiary basis that a
marginal OCTG producer "was likely to have dumped during the period," a determination which is, at
best, a "back-of-the-envelope" guess, based on genera l data. Also, the inference that the USDOC
draws from the volume decrease is used to support the "country-wide" determination and to exclude
the information related to the principal produ cer, Siderca, even though that information was
submitted, in part, to explain the reasons for the decrease in volume. The US position simply does
not add up, and it must be rejected by this Panel.

68. In the end, the United States essentially ta kes the position that there is no positive evidence
that Siderca, the major Argentine OCTG producer, was dumping or would be likely to dump. In the
event that the authority can find no positive evidence with respect to the dominant and only relevant
producer, the obligation of Article 11.3 is not satisfied when the authority simply asserts that it will
make "no finding." In such a case, Article 11.3 requires termination of the measure because the
conditions necessary for continuing the measure on the basis of a determination supported by positive
evidence have not been satisfied.

D. USDOC'S INFERENCE REGARDING LIKELIHOOD OF DUMPING BASED ON THE POST-
ORDER VOLUME DECLINE IS INCONSISTENT WITH US WTO OBLIGATIONS

1. The USDOC Failed in 2000, and Again in 2005, to Examine the Reason for the Post-
Order Volume Decline So as to Support its Inference Regarding Likelihood of Dumping

69. Apart from the finding of likely past dumping for Acindar, the only other basis for the Section
129 Determination is USDOC's restatement of th e inference it drew in 2000 from the post-order
decrease in Argentine exports. USDOC's Secti on 129 Determination contains the following two
statements regarding volume:

[W]e solicited and considered inform ation and argument from domestic and
respondent interested parties for the same period at issue in our original sunset
review, 1995 – 2000. Based upon this information and argument, as well as findings
on import volumes during the 1995 – 2000 from the original sunset review, we

documents in order to avoid questions later whether the Panel fulfilled its obligations under DSU Article 11.
Argentina also intends to file under separate cover its re quest that the Panel request, pursuant to its authority
under DSU Article 13, that the United States provide these documents to the Panel.
68 Argentina's First Submission, para. 99 (referring to USDOC Section 129 Determination (ARG-16)
at 9-10).

continue to find that revocation of the order would be likely to lead to continuation or
recurrence of dumping.
69

In assessing likelihood, we also rely on our previous finding regarding the volume of
imports of subject merchandise for the peri od before and the period after the issuance
of the anti-dumping duty order. In the orig inal sunset review, we found that after
imposition of the order, import volumes significantly decreased from pre-order levels.
[citations omitted]. Declining import volumes after, and apparently resulting from,
imposition of an anti-dumping duty order indi cate that exporters would need to dump
to sell at pre-order levels.
70
70. This is the extent of the development of the basis for USDOC's reliance on volume as a basis
for the USDOC Section 129 Determination. Both passages demonstrate that USDOC's inference
based on the volume decline is part of the Section 129 Determination. With each reference to the
volume, USDOC specifically states that the USDOC is relying on the "previous finding" (i.e., in the
2000 sunset review). These passages leave no doub t that the USDOC did not develop any further
factual bases for its inference.

71. To underscore this point, the United States asser ts in its First Submission that it was under no
obligation to examine the reason for the decline in volume:

[T]he Panel expressly declined to make any fi ndings regarding the decline in volume.
Therefore, Commerce was under no obligation to develop further facts, or further
justify, the finding it made with regard to the volume decrease.
71
72. This view is also explicit in the USDOC S ection 129 Determination, which seeks to insulate
the volume inference from review in the complian ce proceeding based on this Panel's decision to
refrain from deciding the issue in its first review.72 Thus, in 2005 as in 2000, the USDOC again failed
to go behind the volume decline and examine furthe r the reasons for the reduction in OCTG import
volume after the imposition of the order.

73. As an initial matter, the fact that the Pane l may have exercised judicial economy on an issue
does not mean that the USDOC's finding was WT O-consistent. Indeed, the Appellate Body
jurisprudence existing at the time showed the cont rary – it was legally insufficient under Article 11.3
for the USDOC to have simply presumed likelihood based on the post-order volume decline.
73

74. With respect to the probative value of declining import volumes for the purposes of an
Article 11.3 determination, the A ppellate Body has made clear that the authority must undertake "a
case specific analysis of the factors behind a cessation of imports or a decline in import volumes":

[T]he second and third scenarios in Section II.A.3 [of the Sunset Policy Bulletin]
relate to the situation where there is no dumping (either because imports ceased or
because dumping was eliminated after th e duty was imposed). The cessation of
imports in the second scenario and the decline in import volumes in the third scenario
could well have been caused or reinforced by changes in the competitive conditions

69 USDOC Section 129 Determination at 1 (ARG-16).
70 USDOC Section 129 Determination at 11 (ARG-16).
71 US First Submission, para. 33.
72 USDOC Section 129 Determination at 2 n.4 and 6 n.12 (ARG-16).
73 Appellate Body Report, US - Corrosion-Resistant Steel Sunset Review, para. 177.

of the market-place or strategies of exporters, rather than by the imposition of the
duty alone. Therefore, a case-specific analysis of the factors behind a cessation of
imports or a decline in import volum es (when dumping is eliminated) will be
necessary to determine that dumping will recur if the duty is terminated.74
75. The Appellate Body reaffirmed in US - OCTG from Mexico that in the context of declining
volumes, it is insufficient to rely on presumptions or conjecture as to a company's ability to ship to the
US market without dumping:

[I]f the dumping had ceased soon after the is suance of the order, and there was no
dumping or there were no imports for a subs tantial period before the sunset review,
the investigating authority will need credible evidence to come to the conclusion that
dumping will "recur" if the anti-dumping duty order is revoked. A respondent party
may have the responsibility to introduce relevant evidence in its favour, but the
investigating authority also has a duty to seek information to ensure that its
determination rests on a sufficient ev identiary foundation. An affirmative
determination cannot rest merely on a presumption, as envisaged under scenario
(b) or (c), that the cessation of dumping or of imports was due solely to the anti-
dumping duty order.
75
76. The failure of USDOC to analyze the info rmation relating to the volume decline simply
cannot be reconciled with the Appellate Body's ad monishment that "a case-specific analysis of the
factors behind a cessation of imports or a decline in import volumes (when dumping is eliminated)
will be necessary to determine that dumpi ng will recur if the duty is terminated." 76 The Appellate
Body in Mexico OCTG reaffirmed this point expressly and again cautioned against the "mechanistic"
use of presumptions:

The underlying presumption in scenario (c) is that, if import volumes had declined
significantly, it was due solely to the anti-dumping duty order, and that, if the order
were revoked, the company concerned would resort to dumping to increase its import
volumes. Such a presumption cannot be the sole basis for a determination of
"recurrence" of dumping. A company's strate gy and ability to increase or decrease its
exports to particular markets depend on a variety of market conditions, such as, in
particular, the opportunities available in different markets and the competitive
conditions in the market place. Therefore, unless all relevant factors are taken into
account, there may not be an objective eval uation in such cases of the causes of the
variations in import volumes in the importing Member's market.
Thus, the factual scenarios of the SPB must not be mechanistically applied. The
responding parties do have a responsibility to submit information and evidence in
their favour, particularly about their pric ing behaviour, import volumes, and dumping
margins. But the investigating authorit y has a duty to seek out information on
relevant factors and evaluate their proba tive value in order to ensure that its
determination is based not on presumptions, but on a sufficient factual basis.
77
77. The USDOC Section 129 Determination states: "Declining import volumes after, and
apparently resulting from, imposition of an anti-dumping duty order indicate that exporters would

74 Appellate Body Report, US - Corrosion-Resistant Steel Sunset Review, para. 177.
75 Appellate Body Report, United States – Anti-Dumping Measures on Oil Country Tubular Goods
(OCTG) from Mexico, WT/DS282/AB/R. adopted 28 November 2005, para. 199 ("US – OCTG from Mexico").
76 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 177.
77 Appellate Body Report, US – OCTG from Mexico, paras. 200-201.

need to dump to sell at pre-order levels."
78 The statement shows that the USDOC is still making
assumptions rather than reasoned decisions based on positive evidence. There is no factual basis for
the US assumption, either in the 2000 Sunset Determination or in the 2005 Section 129
Determination. Instead, the USDOC relies on what "apparently" is the case, and what an exporter
"would need" to do. This type of conjecture, without f actual basis, does not satisfy the requirements
of Article 11.3.

78. Compounding this failure, during the S ection 129 proceeding the dominant Argentine
producer had offered explanations and evidence that explained the reasons for the volume decline.
This information demonstrated that the decline in volume was not related to the inability of the
company to participate in the US market without dumping. The Argentine exporters explained the
reason for the volume decline during the sunset period of review, established that Acindar was only a
minor producer, and demonstrated that Siderca had diversified its export ma rkets after the imposition
of the order and that the company performed quite well without exporting to the US market.
79 The
USDOC's 2005 likelihood determination does not even address these arguments, which explained the
reason for the reduction in Argentine OCTG imports into the United States.

79. The USDOC relied on the decline in import volumes to disregard pos itive evidence and to
make its affirmative likelihood dete rmination. USDOC's reliance on the decline in import volume as
a basis for its 2005 likelihood determination violated Article 11.3 of the Anti-Dumping Agreement,
and failed to bring the United States into complia nce with the rulings and recommendations of the
DSB. In relying on the post-order volume declin e to the exclusion of positive evidence, the USDOC
did not conduct a case-specific analysis of the fa ctors behind the decline, did not properly establish
the facts relevant to the likelihood determination, and did not objectively evaluate the matter.

80. Finally, the United States is incorrect that Argentina's position regarding USDOC's inference
based on the volume decline is inconsistent with its position regarding USDOC's development of a
new and different evidentiary basis.
80 Because the USDOC developed some facts related to the
volume decline in the 2000 review, it was part of the "review" and "determination" required by
Article 11.3. Thus, the USDOC c ould have developed further inform ation regarding the basis for the
volume decline to clarify or explain the inference that it drew in 2000. In fact, it had an obligation to
do so, as the Appellate Body made clear that a s ubstantive analysis of the reasons for the volume
decline would be necessary to support an inference that dumping is likely to continue or recur. Thus,
it is clear that the Section 129 Determination is defi cient on this point, and that USDOC's Section 129
Determination does not comply with Article 11.3.

2. The USDOC's Section 129 Determinatio n is A "Measure Taken To Comply" and
USDOC's Findings Regarding Volume Are Part of That Determination

81. The US First Submission offers the puzz ling suggestion that "Argentina has offered no
argument as to why the finding regarding import volumes, which is an incorporation of an element of
the original determination, is a measure taken to comply."
81

82. This argument can be dismissed by the Pa nel. First, the Section 129 Determination is
unquestionably a "measure taken to comply" for the purposes of DSU Article 21.5. Second, the
Section 129 Determination specifically relied on the USDOC findings on import volumes from the
original sunset review. Therefore, the findings on volume are an integral part of the "measures taken
to comply" for the purposes of Article 21.5. Third, WTO jurisprudence on the scope of Article 21.5

78 USDOC Section 129 Determination at 11 (ARG-16) (emphasis added).
79 See Siderca's Response to Questionnaire (30 Nov. 2005) at 7-10 (ARG-15).
80 US First Submission, para. 33.
81 US First Submission, para. 34.

supports the proposition that the findings on volum e are part of the US implementing measure.
Argentina's position is set forth below.

83. It is not disputed by the United States that the Section 129 Determination is a "measure taken
to comply." Indeed, the express purpose of Secti on 129 of the Uruguay Round Agreements Act is to
enable the United States to bring itself into conformity with its obligations under, inter alia, the Anti-
Dumping Agreement. In the compliance proceeding in US – Lumber ITC Investigation (Article 21.5 –
Canada), the Appellate Body confirmed that a US Section 129 Determination constitutes a "measure
taken to comply." The Appellate Body stated: "We must review the Panel's assessment of the
Section 129 Determination because that is the 'meas ure taken to comply' with the recommendations
and rulings of the DSB."
82 As the Panel noted in US – Countervailing Measures on Certain EC
Products (Article 21.5 – EC) , "Section 129 is the US procedure aimed at rendering an administering
authority's action, which was previously found WTO-inconsistent by the DSB, " not inconsistent with
the findings of the panel or the Appellate Body."83

84. As noted above, in making its Section 129 De termination, the USDOC relied on its findings
on volume from the original sunset review. Ind eed, the very first paragraph of the Section 129
Determination states in part that:

[W]e solicited and considered inform ation and argument from domestic and
respondent parties for the same period at issue in our original sunset review, 1995-
2000. Based upon this information and argument, as well as findings on import
volumes during 1995-2000 from the original sunset review , we continue to find that
revocation of the order would be likely to lead to continuation or recurrence of
dumping.
84
85. Thus, the USDOC states clearly that its "mea sure taken to comply" is based on information
and argument from domestic and respondent parties and the USDOC findings on import volumes
during 1995-2000 from the original sunset review. Also, as noted above, any possible doubt on this
issue is removed by the USDOC's own declarations in the Section 129 Determination that it "relied on
our previous finding regarding the volume of imports."
85 The USDOC stated unequivocally, the
findings on volume from the original sunset review were specifically "relied upon" by the
Department. The USDOC findings on import volumes from the original review are thus a
fundamental part of the US "measures taken to comply."

86. In addition, the record established that Side rca is the major Argentine producer of OCTG,
and, as the United States repeats often, USDOC ma de a "country-wide" determination. Thus, any
finding with respect to the Argentine OCTG industry necessarily is a finding with respect to Siderca.
More specifically, the finding that volume decreased after impositi on of the measure can only be a
finding "with respect to Siderca," as the record shows that Siderca was the only exporter prior to the
imposition of the measure, and that the marginal OCTG producer, Acindar, did not even produce
OCTG until 1998 – i.e., three years after imposition of the measure. The fact is that the USDOC

82 See Appellate Body Report, US – Lumber ITC Investigation (Article 21.5 – Canada), para. 90.
83 Panel Report, US – Countervailing Measures on Certain EC Products (Article 21.5 – EC), para. 7.12
(original emphasis).
84 USDOC Section 129 Determination at 1 (emphasis added) (ARG-16).
85 USDOC Section 129 Determination at 6 (ARG-16) ("In making our likelihood determination, we
also relied on our previous finding regarding the volume of imports of subject merchandise for the period
before and the period after the issuance of the anti-dumping duty order….") (emphasis added); see also USDOC
Section 129 Determination at 11 ("Based upon this information and argument, as well as findings on import
volumes during 1995-2000 from the original sunset review , we continue to find that revocation of the order
would be likely to lead to continuation or recurrence of dumping.") (emphasis added).

purports to make a count ry-wide determination despite the information provided by Siderca, and then
disregards Siderca's explanations of the volume declin e. Thus, it is simply incorrect, with respect to
the volume decline, for the United States to assert that USDOC made no findings with respect to
Siderca
.86

3. Prior WTO Jurisprudence Confirms that USDOC's Findings on Volume Are Part of
The Measures Taken to Comply

87. Accepting the US argument – that the findings on volume are not part of the "measures taken
to comply" – would breach two important principles est ablished by the jurisprudence. First, it is not
up to the implementing party to decide the scope of jurisdiction of an Article 21.5 panel. As the
Appellate Body stressed in US – Softwood Lumber IV (Article 21.5 – Canada):

A number of previous proceedings have raised the issue of what measures fall within
the scope of jurisdiction of a panel acting pursuant to Article 21.5. Panels and the
Appellate Body alike have found that what is a "measure taken to comply" in a given
case is not determined exclusively by the implementing Member. A Member's
designation of a measure as one taken "to comply ", or not, is relevant to this inquiry,
but it cannot be conclusive. Conversely, nor is it up to the complaining Member alone
to determine what constitutes the measure take n to comply. It is rather for the Panel
itself to determine the ambit of its jurisdiction.
87
88. After having stated expressly in its implem enting measure that it relied on its prior findings
on volume, the United States cannot now declare that this portion of the Section 129 Determination is
somehow excluded from the scope of "measures take n to comply." Otherwise, the United States
would be determining unilaterally which parts of its measures can be examined by an Article 21.5
panel.

89. Second, if the US position were to prevail, the Panel would be impaired in its ability to
determine the WTO-consistency of the US impl ementing measures, base d on Argentina's panel
request. The Panel in Australia – Automotive Leather II (Article 21.5 – US) rejected a similar attempt
by Australia to exclude a certain measure from its terms of reference:

In our view, the 1999 loan cannot be ex cluded from our consideration without
severely limiting our ability to judge, on the basis of the Unit ed States' request,
whether Australia has taken measures to comply with the DSB's ruling. In the
absence of any compelling reason to do so, we decline to conclude that a measure
specifically identified in the request for establishment is not within our terms of
reference.
88
90. The principles enunciated by the Panel in Australia – Automotive Leather II apply readily in
the present case. First, the present Panel would be severely limited in its ability to judge the WTO-
consistency of the US implementing measure if it were artificially to exclude from its terms of
reference one of the two grounds on which the United States contends serves as the basis for the
USDOC Section 129 Determination. Second, Ar gentina's panel request in the present case

86 US First Submission, para. 14 (emphasis in original).
87 Appellate Body Report, United States – Final Countervailing Duty Determination with Respect to
Certain Softwood Lumber from Canada – Recourse by Canada to Article 21.5 of the DSU , WT/DS257/AB/RW,
adopted 20 December 2005, para. 73 ("US – Softwood Lumber IV (Article 21.5 – Canada)").
88 Panel Report, Australia – Subsidies Provided to Produce rs and Exporters of Automotive Leather –
Recourse to Article 21.5 of the DSU by the United States, WT/DS126/RW and Corr.1, adopted 11 February 2000,
DSR 2000:III, 1189, para. 6.5 ("Australia – Automotive Leather II (Article 21.5 – US)").

"specifically identified" both the Section 129 Determination and the finding on volume relied upon by
the USDOC.89 There is no reason, let alone a "compelling reason" to exclude this reliance from the
Panel's terms of reference, as established by Argentina's panel request.

91. The Panel in Australia – Automotive Leather II (Article 21.5 – US) also referred to a measure
that was "inextricably linked" to the steps taken by the implementing party in response to the DSB
rulings in that dispute.
90 The Panel in Australia – Salmon (Article 21.5 – Canada) used a very similar
test:

[W]e note that an Article 21.5 panel cannot leave it to the full discretion of the
implementing Member to decide whether a measure is one "taken to comply". If one
were to allow that, an implementing Member could simply avoid any scrutiny of
certain measures by a compliance panel, even where such measures would be so
clearly connected to the panel and Appella te Body reports concerned, both in time
and in respect of the subject-matter, that any impartial observer would consider them
to be measures "taken to comply".
91
92. These tests were endorsed by the Appellate Body in US – Softwood Lumber IV (Article 21.5 –
Canada):

Turning to examine the legal standard articulated by the Article 21.5 Panel in this
case, we note that the Panel stated, first, that it would be "guided by dispute
settlement decisions regarding the scope of DSU Article 21.5". The Panel observed
that "Article 21.5 proceedings are not rest ricted to measures formally, or explicitly,
taken by Members to implement DSB rulings and recommendations." The Panel then
went on to examine the panel reports in Australia – Salmon (Article 21.5 – Canada)
and Australia – Automotive Leather II (Article 21.5 – US) . The Panel observed that,
in this case, there was no dispute that th e Section 129 Determination fell within the
scope of the Article 21.5 proceedings.
…

[I]t is clear from the previous panel report s the Panel cited, and from the language it
used ("clearly connected" and "inextricably linked"), that the Panel employed a
nexus-based test similar to the ones articulated in Australia – Automotive Leather II
(Article 21.5 – US) and Australia – Salmon (Article 21.5 – Canada) to determine
whether the First Assessment Review fell with in the scope of its jurisdiction. We see
no error in the Panel's adoption of such a standard, which accords with our own
interpretation of Article 21.5.
92
93. This "nexus-based" test applies equally to the present dispute. The USDOC findings on
volume are "clearly connected" and "inextricably lin ked" to the DSB rulings in the present case, in
that (1) the Section 129 Determination was adopt ed to implement the DSB rulings; and (2) the
USDOC findings on volume are an integral part of the Section 129 Determination. As noted above,
the Panel cannot sever from its jurisdiction one of the factors expressly relied upon by the USDOC
when it adopted its "measure taken to comply."

89 See Argentina's Panel Request at pages 3-4.
90 Panel Report, Australia – Automotive Leather II (Article 21.5 – US), para. 6.5.
91 Panel Report, Australia – Measures Affecting Importation of Salmon – Recourse to Article 21.5 of
the DSU by Canada, WT/DS18/RW, adopted 20 March 2000, DSR 2000:IV, 2031, para. 7.10, subparagraph 22
("Australia –Salmon (Article 21.5 – Canada)).
92 Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada), paras 78-79.

94. Finally, the US reliance on EC – Bed Linen (Article 21.5 – India) is inapposite. In that case,
India made a particular claim (that the EC viol ated Article 3.5 of the Anti-Dumping Agreement by
failing to ensure that injuries caused by "other fact ors" was not attributed to the dumped imports) that
was dismissed because India failed to make a prima facie case. India did not appeal that finding.
When the EC implemented the DSB rulings, it did not revise the analysis of "other factors" made in
the original determination.
93 As noted by the Panel, "[t]he EC did not … undertake a reconsideration
of the "other factors' identified by India. Rather, it referred to and confirmed its original consideration
of these factors."94

95. An examination of the EC implementing regulation in Bed Linen demonstrates that the
Council indeed simply confirmed its initial determination, rather than rely on such findings for the
purpose of its "measure taken to comply." Each of the sections dealing with "Effects of other factors"
consist of a single sentence. The section on "Imports from third countries" states simply that: "[t]he
findings in recitals 100 and 101 of the provisional Regulation remain unaffected."
95

96. Similarly, the section on "Competition fro m non-compliant producers in the Community"
states only that: "[t]he findings in recitals 107 and 108 of the provisional Regulation remain
unaffected."96 And once again, the section on "Increase in raw cotton prices" repeated the same
statement that: "[t]he findings set out in recitals 102 and 103 of the provisional Regulation remain
unaffected."97

97. Thus, as these sections demonstrate, the portion of the EC Regulation dealing with "Effects of
other factors" consisted of nothing more than a pro forma affirmation that its original consideration
was "confirmed" or remained "unaffected."98

98. By contrast, in the present dispute, the USDOC did not simply confirm its "original
consideration" of the finding on volume. Rather, it relied on this finding for the separate and
independent purpose of its implementing measure , i.e., the Section 129 Determination. Instead of
indicating that a finding in the past "remained una ffected", the USDOC relied on this finding as one
of the two bases for its implementing measure. For this reason, the USDOC finding on volume is
demonstrably part of the "measures taken to comply." Thus, EC – Bed Linen (Article 21.5 – India) is
simply irrelevant in the present context.

93 Appellate Body Report, European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed
Linen from India – Recourse to Article 21.5 of the DSU by India, WT/DS141/AB/RW, adopted 24 April 2003,
DSR 2003:III, 965, para. 72 ("EC – Bed Linen (Article 21.5 – India)").
94 Panel Report, European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen
from India – Recourse to Article 21.5 of the DSU by India, WT/DS141/RW, adopted 24 April 2003, as modified by
Appellate Body Report, WT/DS141/AB/RW, DSR 2003:IV, 1269, para. 6.42 (original emphasis) (" EC – Bed
Linen (Article 21.5 – India)").
95 Council Regulation (EC) No 1644/2001, 7 August 2001, amending Council Regulation (EC)
No 2398/97, imposing a definitive anti-dumping duty on imports of cotton-type bed linen originating in Egypt,
India, and Pakistan and suspending its application with regard to imports originating in India, published in the
Official Journal of the European Communities, 14 August 2001, L-series, No. 219, para. 63.
96 Official Journal of the European Communities, 14 August 2001, L-series, No. 219, para. 64.
97 Official Journal of the European Communities, 14 August 2001, L-series, No. 219, para. 60.
98 For the sake of completeness, Argentina notes that there is a slightly expanded discussion on
"Development of Community Consumption" in the EC Regulation. However, as the Article 21.5 Panel noted:
"The EC confirmed the findings set out in the original determination, and expanded on them in respect of one
element, the development of consumption of bed linen in th e EC, in order to take into account slightly different
figures on domestic industry sales. Regulation 1644/2001, at paras. 59 – 64. India's claim in this proceeding
does not rely on this minor change." Panel Report, EC – Bed Linen (Article 21.5 – India) n. 75.

IV. THE UNITED STATES VIOLATED THE SPECIFIED OBLIGATIONS OF
ARTICLE 6 OF THE ANTI-DUMPING AGREEMENT

A. ARTICLE 6 OF THE ANTI-DUMPING AGREEMENT APPLIED TO THE USDOC SECTION 129
DETERMINATION

99. The Panel can quickly dispose of a threshold ma tter that is not in dispute: Article 6 of the
Anti-Dumping Agreement applied to the USDOC Section 129 Determination in the present case. The
United States has not asserted otherwise.

100. As noted in Argentina's First Submission, Ar ticle 11.4 of the Agreement provides that "[t]he
provisions of Article 6 regarding evidence and pro cedure shall apply to any review carried out under
this Article."
99 The Section 129 Determination is a re view carried out under Article 11, as it
purported to supplant or modify the USDOC 2000 like lihood of dumping determin ation in the sunset
review for OCTG from Argentina.

101. The US First Submission acknowledges the applicability of Article 6, stating that
"Article 11.4 of the AD Agreement establishes that fo r sunset reviews, the 'provisions of Article 6
regarding evidence and procedure shall apply…."
100 The United States then asserts that "[e]ven with
the short period of time that Commerce was given, it satisfied all of the procedural obligations of
Article 6."101 For the reasons discussed be low, this assertion of US compliance with the requirements
of Article is untenable.

B. THE USDOC FAILED TO PROVIDE TO IN TERESTED PARTIES AMPLE OPPORTUNITY TO
PRESENT IN WRITING ALL EVIDENCE WH ICH THEY CONSIDERED RELEVANT, IN
VIOLATION OF ARTICLE 6.1, AND FAILED TO PROVIDE INTERESTED PARTIES A FULL
OPPORTUNITY FOR THE DEFENCE OF THEIR INTERESTS, IN VIOLATION OF ARTICLE 6.2

102. In its First Submission, Argentina summa rized the relevant WTO jurisprudence on
Articles 6.1 and 6.2 of the Anti-Dumping Agreement. It will not repeat that discussion here, other
than to note that both WTO Panels and the Appellate Body have consistently rejected efforts to read
these provisions in a narrow, pro forma manner. Instead, the cases have made clear that these
provisions set out "fundamental due process rights" to which interested parties are entitled during
reviews.
102 There must be "liberal opportunities" for respondents to defend their interests. 103
Moreover, as the Appellate Body has stressed, "[t]hi s due process obligation—that an interested party
be permitted to present all the evidence it c onsiders relevant—concomitantly requires the
investigating authority, where appropriate, to ta ke into account the information submitted by an
interested party."104

103. The United States claims to have complied with Article 6.1 in part because the responding
parties "timely filed substantive responses to Co mmerce's requests for information", and provided
rebuttal comments to submissions made by other interested parties.
105 Therefore, according to the

100 US First Submission, para. 51.
101 US First Submission, para. 53.
102 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 241.
103 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 241.
104 Appellate Body Report, Mexico - Definitive An ti-Dumping Measures on Beef and Rice ,
WT/DS295/AB/R, adopted on 20 December 2005, para. 292 (" Mexico – Anti-Dumping Measures on Beef and
Rice").
105 US First Submission, para. 56.

United States, the respondents had "not one but tw o opportunities to present in writing the evidence
they considered relevant."
106

104. Yet a review of the responses filed by the r esponding parties in the Section 129 Determination
confirms that they were denied the ample opport unity to which they were entitled to present the
evidence that they considered relevant. Th e 7 December 2005 letter from Siderca to the USDOC
made clear that the allegations by the Petitione rs regarding Siderca's cost data were wrong.
107 The
letter provided a detailed review of the problems with the Petitioners' approach, its use of facts, and its
conclusions. The letter also pointed out that there had been no communication from the USDOC as to
how it would use the information solicited, what procedures would be used to analyze the
information, the timing of any hearing, or how th e parties would be permitted to have access to and
comment on the essential facts being used by the USDOC to make its determination. 108 It also
pointed out that the allegations by the Petitioners re garding Acindar were wrong, and did not form an
adequate basis for a country-wide determination.109

105. The USDOC did not respond to Siderca's 7 December letter. The parties only found out on
16 December that there would be no additional procedur es, and that the final results had been issued.
This falls far short of the US obligation to provide "liberal opportunities" to the responding parties to
defend their interests. Similarly, by simply ignoring Si derca's 7 December letter, the USDOC
breached its obligation to "take into account the information submitted by an interested party."

106. As noted in Argentina's First Submission, during the Article 21.3(c) arbitration on the
reasonable period of time for compliance, the United States set out an extensive list of procedural
steps that it intended to take during the Section 129 proceeding. It now claims that such procedural
safeguards as supplemental questionnaires, a prelimin ary determination, a hearing or a schedule for
comments are not required by Article 6.1.
110 In Argentina's view, while these steps may not be
specifically mentioned in Article 6.1, they provide means through which an investigating authority
may fulfil its obligations under this key provision. The US approach – to deny that any of these steps
are required under Article 6.1 – essentially strips th is provision of any substantive meaning, and
would reduce it to a pro forma requirement. As noted above, the ju risprudence has rejected such an
approach.

107. This Panel need not provide an exhaustive listing of the measures that are, or are not, required
by Article 6.1. Instead, it has to address one core issue: whether the USDOC actions in this case fell
short of the requirements of Article 6.1. For the reasons specified above, it is clear that the United
States breached its obligations under this provision. By totally disregarding the legitimate concerns
raised by Siderca in its 7 December letter, and then simply issuing the final determination, the
USDOC hardly provided this respondent with "liberal opportunities" to defend its interests.
111

106 US First Submission, para. 56.
107 Letter from Siderca to USDOC, 7 December 2005 at 4-8 (public version) (ARG-19).
108 Letter from Siderca to USDOC, 7 December 2005 at 3 (public version) (ARG-19).
109 Letter from Siderca to USDOC, 7 December 2005 at 8 (public version) (ARG-19).
110 US First Submission, paras. 57-59.
111 As Argentina noted in its First Submission, the Panel in Guatemala – Cement II stressed that
"Article 6.1…requires that interested parties shall have 'ample' opportun ity to present evidence and 'full'
opportunity to defend their interests." Panel Report, Guatemala – Definitive Anti-Dumping Measures on Grey
Portland Cement from Mexico , WT/DS156/R, adopted 17 November 2000, para. 8.119 (" Guatemala –
Cement II"); Argentina's First Submission, para. 141. The United States considers it "curious" that Argentina
has cited this precedent, because that Panel stated that Article 6.1 does not require investigating authorities to set
time-limits for the presentation of arguments and evidence during the final stage of the investigation. US First
Submission, para. 60. The United States omits the key part of the Panel's reasoning on this issue, found in the
paragraph subsequent to the one cited by the United States: " What counts is whether, in practice, sufficient
opportunity was provided, not whether time limits for the submission of evidence were set [emphasis added]."

108. Turning to Article 6.2, Argentina notes that the United States has not challenged the
proposition that the lack of a hearing will violate the specific obligation to allow interested parties to
"meet" parties with adverse interests and to "present…information orally." 112 Instead, the United
States has confined its defence to a single argument, that no interested party requested a hearing.113

109. Yet, as noted above, the United States had alr eady told Argentina and the Arbitrator that it
intended to follow specific procedures, which included a hearing. Also, one of the interested parties,
Siderca, specifically asked the USDOC to provid e more information regarding the timing of the
hearing, and the USDOC offered no response. All of this occurred within the context of this specific
case, in which one of the specific violations th e Panel found with the USDOC's 2000 review was a
violation of Article 6.2 and the lack of a hearing. 114 If the USDOC had changed its mind about
providing a hearing, it should have advised the par ties, especially in light of Siderca's expressed
concern with the lack of information regarding the procedures generally, and the hearing specifically.

110. While the lack of a hearing will breach Article 6.2 in circumstances such as in this case, that
is not exhaustive of the actions that may be incons istent with Article 6.2. The opening sentence of
Article 6.2 establishes a general obligation: "Thr oughout the anti-dumping investigation all interested
parties shall have a full opportunity for the defence of their interests." In EC – Tube or Pipe Fittings,
the Appellate Body found that the EC breached its obligations under Article 6.2 for failing to disclose
to the interested parties during an anti-dumping investigation certain information on injury factors.115

111. In the present case, by remaining silent afte r Siderca asked for essential clarification with
respect to the erroneous allegations of the Petitio ners and with respect to the procedures, the
United States deprived the respondents the "full oppor tunity for the defence of their interests", in
breach of Article 6.2.

C. THE USDOC FAILED TO PROVIDE TIMELY OPPORTUNITIES FOR INTERESTED PARTIES
TO SEE ALL OF THE INFORMATION THAT IS RELEVANT TO THE PRESENTATION OF
THEIR CASES, IN VIOLATION OF ARTICLE 6.4

112. As the Appellate Body made clear in EC – Tube or Pipe Fittings , Article 6.4 requires that,
whenever practicable, investigating authorities must provide timely opportunities for all interested
parties to see and prepare presentations on the basis of "all information" that (a) is relevant to the
presentation of the cases of the interested parties; (b) is not confidential as defined in Article 6.5;
and (c) is used by the authorities in an anti-dumping investigation.116

113. As a threshold matter, the Panel can readily dismiss the half-hearted US claim that Argentina
has "not met the burden of making a prima facie case with respect to this claim" ostensibly because
"Argentina's discussion of the info rmation that was purportedly not put on the record is murky."
117
Argentina clearly identified in its First Submission – and attached as exhibits – all of the relevant
USDOC memoranda to file. To reiterate, the Sec tion 129 Determination included six memoranda to

Panel Report, Guatemala – Cement II , para. 8.119. As noted above, in the Section 129 Determination, an
"ample" opportunity to present evidence and a "full" opportunity to defend their interests was not provided to
the respondents. To apply the test set out by the Panel in Guatemala – Cement II, this is what "counts."
113 US First Submission, para. 63.
114 Panel Report, US – Oil Country Tubular Goods Sunset Reviews, paras. 7.235, 8.1(d)(i).
115 Appellate Body Report, European Communities – Anti-Dumping Duties on Malleable Cast Iron Tube
or Pipe Fittings from Brazil, WT/DS219/AB/R, adopted 18 August 2003, ("EC – Tube or Pipe Fittings ").
116 Appellate Body Report, EC – Tube or Pipe Fittings , para. 142; Argentina's First Submission,
para. 154.
117 US First Submission, para. 66.

file, five of which are dated 16 December 2005, the day of the release of the Section 129
Determination. The six memoranda were discu ssed in Section IV.D.3 of Argentina's First
Submission, and were attached as:

• Exhibit ARG-18 (22 November 2005 USDOC Memorandum to file from Fred Baker
(public version));
• Exhibit ARG-21 (16 December 2005 USDOC Memorandum to file from Mark
Flessner regarding "Inconsistencies in data reported by Siderca" (public version));
• Exhibit ARG-22 (16 December 2005 USDOC Memorandum to file from Mark
Flessner regarding "Information from Preston Publishing Company");
• Exhibit ARG-23 (16 December 2005 USDOC Memorandum to file from Mark
Flessner regarding "Inconsistencies in data reported by Acindar" (public version));
• Exhibit ARG-24 (16 December 2005 USDOC Memorandum to file from Mark
Flessner regarding "Securities and Exchange Commission Filings of Domestic OCTG
Producers"); and
• Exhibit ARG-25 (16 December 2005 USDOC Memorandum to file from Fred Baker
regarding "Information for the Record").
114. Argentina's First Submission also indicated that three of these six memoranda were public
documents, and therefore met all of the criteria established in EC – Tube or Pipe Fittings .
118 I n
addition, as stated in Argentina's First Submission 119, although three of the memoranda were
confidential documents, the USDOC had created pub lic versions ("not confidential as defined in
Article 6.5"), such that the "public versions" of these documents would also be subject to the
disciplines of Article 6.4:

• Exhibit ARG-18 (22 November 2005 USDOC Memorandum to file from Fred Baker
(public version));
• Exhibit ARG-21 (16 December 2005 USDOC Memorandum to file from Mark
Flessner regarding "Inconsistencies in data reported by Siderca" (public version));
and
• Exhibit ARG-23 (16 December 2005 USDOC Memorandum to file from Mark
Flessner regarding "Inconsistencies in data reported by Acindar" (public version));

115. In US – Gambling, the Appellate Body stated that "[t]he evidence and arguments underlying a
prima facie case…must be sufficient to identify the cha llenged measure and its basic import, identify
the relevant WTO provision and obligation contained therein, and explain the basis for the claimed
inconsistency of the measure with that provision."
120 Argentina has amply met this burden. It
identified and attached as exhibits the six USDOC memoranda to file, and their "basic import", i.e.,
their role in denying the rights of the respondent companies. Argentina's First Submission clearly
identified Article 6.4 of the Anti-Dumping Agreem ent and the obligation imposed on investigating
authorities to provide timely opport unities for all interested parties to see all information that is
relevant to the presentation of their cases. Arge ntina also explained the basis for the claimed
inconsistency with Article 6.4, including the fact th at this information was used by the USDOC in the

119 Argentina's First Submission, paras. 157 and 160.
120 Appellate Body Report, United States – Measures Affecting the Cross-Border Supply of Gambling
and Betting Services, WT/DS285/AB/R, adopted 20 April 2005, para. 141 ("US – Gambling").

Section 129 proceeding, and yet the Argentine e xporters were never provided with a sufficient
opportunity to "prepare presentations on the basis of this information."121

116. Before leaving this threshold issue, Argentin a notes that within days of the release of the
Section 129 Determination, Siderca wrote directly to the USDOC to express its dismay that the
USDOC relied on this information without disclosing it to the parties. Siderca's letter – attached as
Exhibit ARG-26 – is as clear and unambiguous as Argentina's First Submission. Therefore, for the
United States to assert that Argentina's claim is in any way "murky" is simply not believable.
Argentina recalls the admonition of the Appellate Bo dy that "[t]he procedural rules of WTO dispute
settlement are designed to promote, not the developm ent of litigation techniques, but simply the fair,
prompt and effective resolution of trade disputes."122

117. Turning to the substance of Argentina's clai m, Argentina notes that the US First Submission
lacks any explanation as to why these USDOC memoranda to file could not have been provided to the
interested parties in some form in advance of the release of the Section 129 Determination.
Obviously, these documents must have been produced before 16 December, and the United States has
not claimed otherwise. The Panel can reasonably assume that they had been drafted, reviewed and
modified concurrently with the preparation of the Section 129 Determination. Indeed, this is clear
from the references in the memoranda to matters su ch as "inconsistencies in data." Yet while the
USDOC conducted this analysis, and drafted its Determination, the interested parties were unaware of
the analysis that was being performed, and were not provided with any opportunity to comment.
There was never any attempt by the Department to r econcile such alleged "inc onsistencies in data."
The respondents were not provided with any op portunities – let alone timely ones – to see such
information which was clearly being used by the USDOC in its Determination.

118. In response to Argentina's claims, the United States has offered only one argument. The US
First Submission claims that because the Article 21.3(c) Arbitrator granted the United States twelve
rather than fifteen months as the reasonable pe riod of time for compliance, it was therefore not
"practicable" for the United States to comply with its binding obligations under Article 6.4. The
Panel should be greatly concerned by this line of reasoning.

119. As the United States is well aware, all WTO obligations apply on a concurrent and
overlapping basis. Members are required to comply with all of their WTO obligations at the same
time. Under Article 21.3(c), the United States was required to bring its measures into conformity with
its WTO obligations in the shortest period of time possible, which the Arbitrator determined to be
twelve months. At the same time, the United St ates was required to comply with its due process
obligations under Article 6.4 of the Anti-Dump ing Agreement. US compliance with the DSU
Article 21.3(c) in no way excused the United States from compliance with any of its other WTO
obligations. The Panel in EC – Trademarks and Geographical Indications (US) made clear that all
WTO obligations apply concurrently:

The Panel notes that there is no hierarchy between the TRIPS Agreement and GATT
1994, which appear in separate annexes to the WTO Agreement. The ordinary
meaning of the texts of the TRIPS Agreement and GATT 1994, as well as Article II:2
of the WTO Agreement, taken together, indicates that obligations under the TRIPS
Agreement and GATT 1994 can co-exist and that one does not override the other.
This is analogous to the finding of the Panel in Canada – Periodicals, with which the
Appellate Body agreed, concerning the respective scopes of GATS and GATT 1994.
Further, a "harmonious interpretation" does not require an interpretation of one that

122 Appellate Body Report, United States – Tax Treatment for "Foreign Sales Corporations" ,
WT/DS108/AB/R, adopted 20 March 2000, para. 166.

shadows the contours of the other. It is we ll established that the covered agreements
apply cumulatively and that consistenc y with one does not necessarily imply
consistency with them all.
123
120. Similarly, there is no "hierarchy" between DS U Article 21.3(c) and Article 6.4 of the Anti-
Dumping Agreement. The obligations under DSU Article 21.3(c) and Article 6.4 of the Anti-
Dumping Agreement "co-exist and…one does not ove rride the other." Moreover, a "harmonious
interpretation" does not require that DSU Article 21. 3(c) "shadows the contours" of the obligations of
Article 6.4 of the Anti-Dumping Agreement. Th e obligations of the United States under these two
provisions apply cumulatively, and the Panel should dismiss the US line of argument.

121. Also, to assert that the length of the implem entation period excuses the United States from the
obligation to comply with Article 6.4 is to say th at the Arbitrator's decision is incorrect. The
Arbitrator's finding was based on the notion that 12 months was the shortest possible time under the
US system in which the United States could bring itsel f into conformity with all of its obligations, not
just some of the obligations. And, the Arbitrator knew precisely what the United States intended to do
to comply with its Article 6 obligations, because the United States explained the procedures in detail.

122. In fact, the United States had ample time to pr ovide the interested parties with the information
that was going to be used by the USDOC in its de termination. The United States had a full year to
comply, which was close to the fifteen month peri od requested by the United States. The United
States was also under the obligation to advance in parallel its efforts to remedy the "as such" and "as
applied" violations, and it in fact began the procedures relating to the "as applied" violation before it
finished its procedures relating to the "as such" violations.
124 As Argentina demonstrated to the
Arbitrator in the Article 21.3 proceedings, the USDOC routinely responds to decisions by other
bodies (US courts and NAFTA Pane ls) within 30 or 60 days, and USDOC typically issues a draft
determination in order to allow the parties to comment on the new analysis.125

D. THE USDOC FAILED TO REQUIRE CERTAIN INTERESTED PARTIES TO SUBMIT NON-
CONFIDENTIAL SUMMARIES OF THEIR WRI TTEN SUBMISSIONS IN THE SECTION 129
PROCEEDING IN A MANNER SO AS TO PERMIT THE ARGENTINE EXPORTERS TO HAVE A
REASONABLE UNDERSTANDING OF THE SUBSTANCE OF THE CONFIDENTIAL
INFORMATION SUBMITTED, IN VIOLATION OF ARTICLE 6.5 AND 6.5.1

123. Under Article 6.5.1, the USDOC was under an obligation to require interested parties
providing confidential information to furnish non-c onfidential summaries. The US First Submission
argues that the United States complied with this obligation because "Commerce…has established a
system whereby counsel for interested parties can have direct access to confidential information and
therefore may directly address the evidence provided."126

123 Panel Report, European Communities – Protection of Trademarks and Geographical Indications for
Agricultural Products and Foodstuffs, Complaint by the United States , WT/DS174/R, adopted 20 April 2005,
para. 7.208.
124 See Award of the Arbitrator, US – Oil Country Tubula r Goods Sunset Reviews , paras. 38-39. The
United States asserted that "The 129 proceeding could not commence until the regulation was amended." US
First Submission, para. 53. Yet, the United States in fact began the Section 129 proceeding on 14 October, with
the issuance of the letter to the Argentine Embassy in the United States. See Letter from USDOC to Embassy of
Argentina, Washington, D.C., 14 October 2005 (ARG-1 7). This was two weeks before the publication of
USDOC's amended waiver regulation on 28 October 2005. Accordingly, there was no reason why USDOC
could not have issued the questionnaires even earlier, thus starting the process sooner and giving the
United States the additional time it claims to have needed to comply with its Article 6 due process obligations.
125 See Award of the Arbitrator, US – Oil Country Tubular Goods Sunset Reviews, para. 45.
126 US First Submission, para. 70 (original emphasis).

124. However, a number of key doc uments used by the USDOC, particularly the memoranda to
file discussed above, were released concurrently with the USDOC Section 129 Determination. As
noted in Argentina's First Submission, although Si derca's legal counsel di d obtain copies of the
proprietary documents identified in the Sec tion 129 Determination, this only occurred after the
Determination had been issued. Providing coun sel access to confidential information in this ex post
facto manner serves no purpose, and obviously renders meaningless the due process intent of
Article 6.5.1. As Article 6.5.1 makes clear, the pur pose of this provision is to enable the parties to
have a "reasonable understanding of the substance of the information submitted in confidence", and
thereby to defend their interests. Once the Determ ination has been made, the documents used by the
USDOC have little more than historical interest, a nd access by counsel at that point in no way fulfils
the due process requirements of Article 6.5.1. Fu rther, it is unclear whether Acindar even was
represented by its own counsel. The fact that Aci ndar may not have engaged counsel for purposes of
this proceeding would not be surprising, given that the company explained that, at the time of the
Section 129 proceeding, it had been out of the OCTG business for four years. In any event, it is
unreasonable, unfair, and a violation of Article 6.5 for the USDOC to ignore a specific request by an
interested party to be advised of the allegations be ing made against it. In its 6 December 2005 letter,
Acindar did exactly that, and also questioned whet her the US industry's letters had properly claimed
confidential treatment for the undisclosed information. 127 USDOC did not respond to the company's
request.

125. The evidence placed before this Panel by Argen tina confirms this denial of due process rights.
The 21 December 2005 letter from Counsel for Sider ca – sent five days after the Section 129
Determination had been released – indicated th at even the lawyers with access to the APO
information had not seen the propriety versions of the documents used by the USDOC, and that the
public versions conveyed very little substance.
128

126. There were several unsuccessf ul attempts by the responding parties to convince the USDOC
to issue more meaningful summaries of the docum ents issued by the Petitioners, as well as the
documents issued by the Department. As noted in Argentina's First Submission, the
6 December 2005 letter from Acindar to the USDOC stat ed in part that "the Department must require
US Steel to re-submit its letter in a form that is consistent with the regula tions, and which will allow
Acindar to at least understand the nature of the al legation being made so that it can defend itself." 129
Similarly, the 14 December 2005 letter from Siderca to USDOC argued that:

It is unclear why IPSCO is claiming th at the information in the brackets is
confidential. Most of the information is a narrative description that Siderca provided
as public information. In addition, the para graph in IPSCO's lett er contains general
arguments relating to the sufficiency of data. There does not seem to be any reason to
claim proprietary treatment fo r this passage. IPSCO shoul d refile its letter so that
Siderca officials can review the substa nce and provide additional comments, if
necessary.130
127. These requests were ignored, and the USDOC issued its Determination on 16 December.
Even after the release of the Determination, the respondents continued to seek meaningful non-
confidential summaries. The 21 December 2005 letter from Counsel for Siderca "respectfully
request[ed] that the Department revise its bracketing and reissue the public versions." 131 This request
was also disregarded. Thus, the USDOC evidently considered its obligations under Article 6.5.1 as an

127 See Letter from Acindar to USDOC, 6 Dec. 2005 (ARG-28).
128 See Letter from Siderca to USDOC, 21 Dec. 2005 (ARG-26).
129 See Letter from Acindar to USDOC, 6 Dec. 2005 (ARG-28).
130 See Letter from Siderca to USDOC, 14 Dec. 2005, at n. 7 (ARG-29).
131 See Letter from Siderca to USDOC, 21 Dec. 2005 (ARG-26).

inconvenience to be ignored both during and after the process of making its Section 129
Determination.

128. The United States asserts that the Panel in Guatemala – Cement II "expressly state[d] that it
was not addressing Article 6.5.1…."
132 Yet the Panel in Guatemala – Cement II not only addressed
Article 6.5.1, it made a ruling that Guatemala violated this provision. The Panel found that
Guatemala violated this provision because it failed to require the Petitioners in that case to provide a
statement of the reasons why summarization of the relevant information was not possible. 133
Similarly, the USDOC violated Article 6.5.1 because it failed to require the Petitioners in the present
case to provide non-confidential summaries that "permit[ted] a reasonable understanding of the
substance of the information", or to provide a st atement as to why, in "exceptional circumstances"
summarization of the relevant information was not po ssible. The USDOC is thus in clear breach of
this provision.

E. THE USDOC FAILED TO SATISFY ITSELF AS TO THE ACCURA CY OF SIDERCA'S
SUBMITTED COST INFORMATION FOR THE PURPOSES OF ITS FINDINGS, IN VIOLATION
OF ARTICLE 6.6

129. The USDOC failed to provide sufficient justif ication for its assertion that it was "unable to
rely" on Siderca's reported information.

130. The United States argued in its First Submission that the cost data was not information "upon
which…findings are based" within the meaning of Article 6.6, because the USDOC did not make
findings regarding specific instances of likely dumping by Siderca during the original sunset review
period.
134 The Panel should reject this attempt by the United States to define the term "upon
which…findings are based" to cover only info rmation that allegedly supports the USDOC's
conclusions, but not to information that contradi cts or detracts from its conclusions. Such an
interpretation would allow an investigating auth ority to determine for itself which pieces of
information will, or will not, benefit from the due process protections provided by Article 6.6. The

132 US First Submission, para. 72.
133 The Panel stated that:
Article 6.5.1 generally obliges investigating authorities to require interested parties
providing confidential information to furn ish non-confidential summaries thereof.
However, such non-confidential summaries need not be furnished when, "in exceptional
circumstances", the information "is not susc eptible of summary". In such cases, "a
statement of the reasons why summarization is not possible must be provided". Although
Article 6.5.1 does not explicitly provide that "the authorities shall require" interested
parties to provide a statement of the reasons why summarization is not possible, any
meaningful interpretation of Article 6.5.1 must impose such an obligation on the
investigating authorities. It is certainly not possible to conclude that the obligation
concerning the need to provide a statement of reasons is an obligation imposed exclusively
on the interested party submitting the information, and not the investigating authority,
since the AD Agreement is not addressed at interested parties. The AD Agreement imposes
obligations on WTO Members and their investigating authorities. Accordingly, in our view
Article 6.5.1 imposes an obligation on inves tigating authorities to require parties that
indicate that information is not susceptible of summary to provide a statement of the
reasons why summarization is not possible. Guatemala has failed to adduce any evidence
that the requisite statement of reasons was provided by Cementos Progreso, or that the
Ministry even required Ceme ntos Progreso to provide such a statement of reasons. We
therefore find that the Ministry violated Article 6.5.1 of the AD Agreement by failing to
require Cementos Progreso to provide a statement of the reasons why summarization of
the relevant information was not possible.
 Panel Report, Guatemala – Cement II, para. 8.213 (emphasis added).
134 US First Submission, para 74.

US characterization of Siderca's cost information as outside the scope of information "upon
which…findings are based" is premised on the erroneous assumption that this data was flawed.

131. The United States has not offered any subs tantive defence to Argentina's claims under
Article 6.6, other than to argue that "[t]hree pa ragraphs of discussion do not constitute a conclusory
statement" about Siderca's information.
135 In Argentina's view, thr ee paragraphs in an extended
Section 129 Determination are, in fact, conclusory. However, it is not the task of this Panel to count
the number of paragraphs to determine if the US conclusions were based on positive evidence. As
noted above, the role of the Panel was explained by in the April 2006 decision of the Appellate Body
in US – Lumber ITC Investigation (Article 21.5 – Canada):

A panel's examination of those conclusions must be critical and searching, and be
based on the information contained in the r ecord and the explanations given by the
authority in its published report. A panel mu st examine whether, in the light of the
evidence on the record, the conclusions r eached by the investigating authority are
reasoned and adequate. What is "adequate" will inevitably depend on the facts and
circumstances of the case and the particular claims made, but several general lines of
inquiry are likely to be relevant. The panel's scrutiny should test whether the
reasoning of the authority is coherent a nd internally consistent. The panel must
undertake an in-depth examination of whet her the explanations given disclose how
the investigating authority treated the fact s and evidence in the record and whether
there was positive evidence before it to s upport the inferences made and conclusions
reached by it. The panel must examine whether the explanations provided
demonstrate that the investigating authority took proper account of the complexities
of the data before it, and that it explaine d why it rejected or discounted alternative
explanations and interpretations of the reco rd evidence. A panel must be open to the
possibility that the explanations given by the authority are not reasoned or adequate in
the light of other plausible alternative expl anations, and must take care not to assume
itself the role of initial trier of facts, nor to be passive by "simply accept[ing] the
conclusions of the competent authorities".136
132. Thus, rather than "simply accepting" the asser tions of the USDOC, this Panel needs to
conduct a critical and searching examination to de termine if the USDOC's decision to disregard
Siderca's information was reasoned and adequate. For the reasons discussed in Argentina's First
Submission, the USDOC's decision on this issu e was unsupported by any positive evidence, and
cannot be regarded as either reasoned or adequate.

133. There is nothing on the record in the Sec tion 129 Determination – or in the US First
Submission – of whether and how the USDOC satisfied itself as to the accuracy of the information
provided by Siderca. If the USDOC considers that it was "unable to rely" on such information, it
should provide the necessary confidential informa tion to the Panel to demonstrate the "positive
evidence" upon which this conclusion was based.

134. Finally, for the reasons stated above, the US DOC also violated Articles 6.1 and 6.2 of the
Agreement. The interested parties had no opportuni ty – let alone "ample" opportunity – to present in
writing all evidence that they considered to be re levant to challenging USDOC's decision not to use
Siderca's costs information for purposes of USDOC's Section 129 Determination. Similarly, for these
reasons, Siderca did not have a "full opportunity" for the defence of its interests in this regard, in
violation of Article 6.2.

135 US First Submission, para 75.
136 Appellate Body Report, US – Lumber ITC Investigation (Article 21.5 – Canada), para. 93.

F. THE USDOC FAILED TO FOLLOW THE RE QUIREMENTS OF ARTICLE 6.8 AND ANNEX II
OF THE ANTI-DUMPING AGREEMENT

135. As noted in Argentina's First Submission, the Appellate Body has made clear that recourse to
"facts available" by an investigating authority is s ubject to the strict discip lines of the Agreement.
While Argentina will not repeat all of the points set out in section IV.D.6 of its First Submission, it is
important for the Panel to note the key ruling of the Appellate Body in Mexico – Anti-Dumping
Measures on Beef and Rice that "assuming a respondent acted to the best of its ability, an agency must
generally use, in the first instance, the information the respondent did provide, if any."137

136. As a threshold matter, the Panel should reject the US attempt to lim it the disciplines imposed
by Article 6.8 and Annex II when used in a sunset review. 138 As noted above, Article 11.4 provides
plainly that "[t]he provisions of Article 6 regarding evidence and pro cedure shall apply to any review
carried out under this Article." Article 6.8 and An nex II (which is incorporated by reference into
Article 6.8) are "provisions of Article 6 regarding evidence and procedure." The Section 129
procedure was a "review carried out" under Article 11. Therefore, the strict disciplines of Article 6.8
and Annex II, as interpreted by the Appellate Body, applied to the Section 129 Determination.

137. The Panel should also reject the US assertion th at the USDOC did not resort to facts available
with respect to Siderca because "the result of Commerce's analysis of Siderca's estimated cost
information was no company-specific finding regarding Siderca."
139 The US assertion is premised on
the erroneous assumption that these obligations apply only to information that supports the
conclusions of the investigating authority, an assu mption that has no support in the treaty text. The
obligations of Article 6.8 and A nnex II apply to all information, including what the investigating
authority may consider to be exculpatory information.

138. Although the USDOC did not use the term "facts available" in the Section 129 Determination,
this cannot be conclusive – if it were, investig ating authorities could shield themselves from the
disciplines of Article 6.8 and Annex II by simply a voiding that term. This would elevate form over
substance and would permit investigating authorities, not WTO Panels, to determine when Article 6.8
and Annex II applied, and when it had been breach ed. In the present case, the USDOC asked both
Acindar and Siderca for information that they did not have.
140 Siderca explained that the company
was unable to provide the information requested by USDOC because it did not retain product-specific
costs from the period requested.141 Acindar explained that it no longer produces OCTG, that it did not
have the product-specific cost information in the form requested by the Department, and that it was
not required to have retained such information under Argentine law.142 When the companies indicated
that they did not have it, the USDOC resorted to other information, without complying with
Article 6.8 and Annex II. This is recourse to "fact s available", whether the USDOC used that term or
not.

139. The specific allegations raised by Argentina in its First Submission have not been answered
by the United States. As Argentina emphasized, Arti cle 6.8 does not apply at all unless an interested
party "refuses access to, or otherwise does not pr ovide, necessary information within a reasonable
period or significantly impedes the investigation" . There is no evidence on the record of the
Section 129 proceeding that these essential preconditi ons had been met, and the United States has

137 Appellate Body Report, Mexico – Anti-Dumping Measures on Beef and Rice , para. 288; see also
138 US First Submission, paras. 80-81.
139 US First Submission, para. 82.
140 USDOC Questionnaire to Acindar, Tubhier and Siderca (31 Oct. 2005) (ARG-13).
141 Siderca's Response to Questionnaire (30 Nov. 2005) at 2 and Attachment 2 (ARG-15).
142 Acindar's Response to Questionnaire (30 Nov. 2005) (ARG-14).

never claimed that either company behaved in this recalcitrant manner. Indeed, the USDOC
Section 129 Determination itself found that Siderc a "attempted to cooperate with the Department's
request for information."143

140. In its First Submission, Argentina also enum erated the reasons why the United States failed to
comply with the obligations of the USDOC under An nex II of the Agreement. The United States has
not even attempted to rebut these claims.

G. THE USDOC FAILED TO INFORM INTER ESTED PARTIES OF THE ESSENTIAL FACTS
UNDER CONSIDERATION WHICH FORMED THE BASIS FOR THE SECTION 129
DETERMINATION, IN VIOLATION OF ARTICLE 6.9

141. The due process obligations of Article 6.9 are pl aced in an important temporal context. It
requires investigating authorities, "before a determinati on is made", to inform all interested parties of
the essential facts under consideration which form the basis for their decision. This provision adds
that such disclosure "should take place in sufficient tim e for the parties to defend their interests." The
Korea – Paper AD Duties Panel made clear that Article 6.9 re quires "a one-time disclosure…before a
final determination is made…." 144 As Argentina argued in its First Submission, the USDOC did not
inform the interested parties of the essential fact s under consideration that formed the basis of its
decision. The Section 129 Determination referred to memoranda to file that had never been disclosed
to the parties. Moreover, even the public versi ons of these documents were not made in sufficient
time for the parties to defend their interests, beca use they were released contemporaneously with the
Section 129 Determination.

142. The US First Submission offers no substantive re ply to Argentina's claim, other than to make
the unsubstantiated assertion that somehow these me moranda might not have been part of the
"essential facts under consideration which form the basis for the decision." 145 The memoranda were
clearly part of the "essential facts under considera tion", and were treated as such by the Section 129
Determination. In Argentina – Ceramic Tiles , the Panel found a violation of Article 6.9 on the
grounds that:

[The exporters were unable to defend their interests within the meaning of Article 6.9,
for example, by giving reasons why their responses should not be rejected and by
suggesting alternative sources for facts ava ilable if their responses were nonetheless
disregarded. Under these circumstances, we find that the [Argentine investigating
authority] did not, by referring the exporters to the complete file of the investigation,
fulfil its obligation under Artic le 6.9 to inform the exporters of the "essential facts
under consideration which form the basis fo r the decision whether to apply definitive
measures".
146
143. In the present case, the Argentine respondents could not defend their interests by addressing
what the USDOC perceived to be "i nconsistencies in data." As in Argentina – Ceramic Tiles , the
companies in the present case were "were unable to defend their interests within the meaning of
Article 6.9, for example, by giving reasons wh y their responses should not be rejected and by
suggesting alternative sources for facts available if their responses were nonetheless disregarded."

143 USDOC Section 129 Determination at 8 (ARG-16); see also Argentina's First Submission,
para. 182.
144 Panel Report, Korea – Anti-Dumping Duties on Imports of Certain Paper from Indonesia,
WT/DS312/R, adopted 28 November 2005, para. 7.204 ("Korea – Paper AD Duties").
145 US First Submission, para. 77.
146 Panel Report, Argentina – Definitive Anti-Dumping Measures on Imports of Ceramic Floor Tiles from
Italy, WT/DS189/R, adopted 5 November 2001, DSR 2001:XII, 6241, para. 6.129.

144. Argentina would emphasize that the drafters of Article 6.9 framed the discipline of this
provision to cover not just "essential facts", but also to ensure that responding parties had the ability
to "defend their interests." Any references in the USDOC memoranda to "inconsistencies in data"
meant, by definition, that these respondents had interests to defend. However, the USDOC failed to
disclose these essential facts, in clear breach of Article 6.9.

145. Finally, the United States argues that it could have issued a preliminary ruling if it had been
given 15 months, rather than 12 months, to impl ement the DSB rulings. Argentina recalls its
argument above that all US WTO obligations apply on a concurrent and overlapping basis, and the
"shortest period of time" determined by an Arbitrator under Article 21.3(c) is entirely irrelevant to the
issue of US compliance with its other WTO oblig ations, including under Article 6.9 of the Anti-
Dumping Agreement. As noted above, the Panel in Korea – Paper AD Duties stressed that Article 6.9
requires "a one-time disclosure…before a final determ ination is made." The Panel did not qualify this
statement in any way, such as "time permitting" or "if convenient." In any event, the USDOC made
no disclosure before the Section 129 Determination was made.

V. ARGENTINA HAD A GOOD FAITH BASIS FOR ITS CLAIM THAT THE UNITED
STATES HAD VIOLATED ARTICLE 13 OF THE ANTI-DUMPING AGREEMENT

146. The United States asserts that "there is no basis for Argentina's claim," based on "the
supposed US failure" to implement the determin ation. The United States explains that the
determination had been implemented before the Panel was established.
147

147. Argentina agrees that there is no basis now to proceed with the Article 13 claim because the
United States has now implemented. However, Argen tina would like to assure the Panel that it acted
in good faith in bringing the claim.

148. Argentina brought the claim only after the United States indicated in consultations that it had
not implemented the decision for purposes of US law, that it had no intention of doing so, and, as a
result, that the USDOC Section 129 Determination was not subject to judicial review in the US courts.
Argentina even asked for a clarification of this position in the second consultation, and the United
States simply reaffirmed its position. This led Argentina to include the claim.

149. The "implementation notice" appeared in the Federal Register two days before the
United States filed its First Submission. According to the Federal Register notice, USTR instructed
USDOC to implement the decision more than a month earlier on 16 March, the day before the DSB
meeting leading to the formation of this Panel. This is the basis for the US statement that it had
"implemented" the decision "before the Panel was established."

VI. THE UNITED STATES HAS FAILED TO BRING THE STATUTORY AND
REGULATORY WAIVER PROVISIONS INTO COMPLIANCE WITH THE
RULINGS OF THE DSB AND WITH US WTO OBLIGATIONS

150. The thrust of the US argument is that it was the operation of the statutory waiver provision in
combination with the regulatory waiver provision that resulted in the violation of Article 11.3 of the
Anti-Dumping Agreement.
148 The United States reasons as follows:

[T]he Panel and the Appellate Body analyzed the waiver provisions – the statute and
the regulations – collectively. Thus, the United States never had to amend both the
statute and the regulations – rather, it needed to ensure that the collective impact of

147 US First Submission, para. 84.
148 US First Submission, para. 16.

the two was consistent with the DSB r ecommendations and rulings. The statute and
the regulations now no longer create the inconsistency in question.149
151. Section 751(c)(4)(B) of the Tariff Act was neith er repealed nor modified. Nor can there be
any dispute that once this statutory provision is invoked, it requires USDOC to make a determination
that dumping would be likely to continue or recur with respect to the respondent party for which the
statute has been invoked.

152. The United States asserts that by changing th e regulation, or the purported "trigger" for the
application of the statute, the United States has corrected or neutralized the WTO-inconsistency.
150
The United States contends there is no longer a WTO-inconsistency because, in the wake of the
changes to the waiver regulation, the statute w ill now only lead to a mandated finding of likely
dumping if that party admits that it is likely to dump. The United States further maintains that such an
admission is sufficient "evidence" of likelihood.151

153. The premise for the US argument is that USDO C controls the "trigger" of the application of
the statute and, therefore, controls the effect or impact that the statutory waiver provision has on the
order-wide likelihood determination. The United St ates maintains that the waiver provisions can no
longer result in the kind of decision that the origin al Panel and the Appellate Body determined was
inconsistent with US obligations under Article 11.3 (i.e., a decision that is based in part on
"assumptions" and one that is made without the US DOC arriving at a reasoned determination on the
basis of positive evidence).
152

154. The Appellate Body found that Section 751( c)(4)(B) and its implementing regulation were
inconsistent, as such, with US obligations under Article 11.3 of the Anti-Dumping Agreement:

Because the waiver provisions require the USDOC to arrive at affirmative company-
specific determinations without rega rd to any evidence on record, these
determinations are merely assumptions made by the agency, rather than findings
supported by evidence…. [E]ven assuming that the USDOC takes into account the
totality of record evidence in making its 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 obliga tion of an investigating authority under
Article 11.3 to "arrive at a reasoned conclusion" on the basis of "positive evidence".
Therefore, we uphold the Panel's findings...that Section 751(c)(4)(B) of the Tariff Act
of 1930 and Section 351.218(d)(2)(iii) of the USDOC Regulations are inconsistent, as
such, with Article 11.3 of the Anti-Dumping Agreement. 153
155. The position of the United States is that the WTO-inconsistencies identified by the Appellate
Body were remedied by amendment of the waiver re gulation and that there was no need to repeal or
amend the statutory provision. Yet, despite th e regulatory modification undertaken by the United
States, the operation of the statutory and regulator y waiver provisions will continue to lead to
determinations that are based on a statutorily- mandated "assumption" that is contrary to US
obligations under Article 11.3.

149 US First Submission, para. 16.
150 US First Submission, para. 15.
151 See US First Submission, paras. 17-21.
152 See US First Submission, paras. 17-21.
153 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, paras. 234-235.

156. The US statutory and regulatory waiver provi sions continue to be inconsistent with US
obligations under Article 11.3 under either of th e scenarios that now exist under USDOC's revised
waiver regulation:

• Cases where a respondent party elects not to participate in USDOC's sunset review,
but also does not file an affirmative statement of waiver and an admission that it is
likely to dump; and
• Cases where a respondent party files an affirmative statement of waiver and
admission that it is likely to dump.
A. NON-PARTICIPATION IN USDOC SUNSET REVIEW BUT NO AFFIRMATIVE STATEMENT
OF WAIVER

157. At the outset, Argentina would emphasize that it is up to this Panel to determine how the
regulatory and statutory waiver provision will operate in order to determine whether the United States
has complied with its obligations. The US descrip tion of how the waiver operates is by no means
conclusive. As the Panel stated in US – 1916 Act (EC):

[P]anels need not accept at face value the characterization that the respondent
attaches to its law. A panel may analyze the operation of the domestic legislation and
determine whether the description of the functioning of the law, as made by the
respondent, is consistent with the legal stru cture of that Member. This way, it will be
able to determine whether or not the la w as applied is in conformity with the
obligations of the Member concerned under the WTO Agreement.
154
158. The first situation is where a respondent party does not participate in a sunset review, but also
does not provide an "affirmative" statement of waiv er and "admission" that it will likely dump in the
future. This would seem to be the more likel y occurrence in cases where a party elects not to
participate in a sunset review, given the consequences of making the statement against self-interests.

159. In such a case, the United States ma intains that USDOC would not invoke
Section 751(c)(4)(B), the statutory wavier provision. The United States argues that it eliminated so-
called "deemed waivers."
155 The implementing Federal Register no tice explains that "the Department
will no longer make company-specific findings for comp anies that fail to file a statement of waiver
and fail to file a substantive re sponse to the notice of initiation." 156 The implementing notice further
indicates that "Section 751(c)(4)(B) of the Act only mandates an affirmative company-specific
likelihood finding as a consequence of a party elec ting to waive its participation in the sunset
review."
157

160. The express terms of the statute demonstrate, how ever, that this is not in fact how the statute
would operate in such circumstances. The statute mandates a company-specific likelihood
determination for any company that elects " not to participate " in a USDOC sunset review.
Section 751(c)(4) of the Tariff Act provides as follows:

154 Panel Report, United States – Anti-Dumping Act of 1916, Complaint by the European Communities,
WT/DS136/R and Corr.1, adopted 26 September 2000, as upheld by Appellate Body Report, WT/DS136/AB/R,
WT/DS162/AB/R, DSR 2000:X, 4593, para. 6.51.
155 US First Submission, para. 14.
156 Procedures for Conducting Five-Year ("Sunset ") Reviews for Anti-dumping and Countervailing
Duty Orders: Final Rule, 70 Fed. Reg. 62,061, 62,062 (28 Oct. 2005) (ARG-12).
157 70 Fed. Reg. at 62,063 (ARG-12).

(4) Waiver of participation by certain interested parties

(A) In General

An interested party described in section 1677(9)(A) or (B) of this title may elect not
to participate in a review conducted by the administering authority under this
subsection and to participate only in th e review conducted by the Commission under
this subsection.
(B) Effect of Waiver

In a review in which an interested part y waives its participation pursuant to this
paragraph, the administering authority shall conclude that revocation of the order or
termination of the investigation would be lik ely to lead to continuation or recurrence
of dumping or a countervailable subsidy (as the case may be) with respect to that
interested party.
158
161. Subsection (A) establishes an option that is available for USDOC sunset reviews (i.e., that a
party may "elect not to participate"). This sub section also establishes who can make such an election
(i.e., respondent interested parties). 159 Subsection (B) then establis hes what is the "effect" or
consequence of a waiver (i.e., non-participation) by a respondent interested party. The consequence is
a statutorily-mandated finding of likely dumping for that company. The terms of the statute thus
direct a company-specific finding of likelihood for any respondent interested party that elects not to
participate in the USDOC sunset review.

162. Consequently, in the circumstance where a r espondent party does not participate in a sunset
review, but also does not provide an "affirmative" statement of waiver, the terms of Section 751(c)(4)
mandate that USDOC make a finding that dumping would be likely for that party.

163. The fact that Section 751(c)(4)(A) refers to an "elect[ion] not to participate" and does not use
the same phrase as in Section 751(c)(4)(B) ("a revi ew in which an interested party waives its
participation"), does not change the analysis. The title of the Section 751(c)(4) is "Waiver of
participation by certain interested parties." Sub sections (A) and (B) are both integral to the operation
of Section 751(c)(4) and these subsections must be read together in determining how
Section 751(c)(4) operates. Subsection (A) must be read so as to have some meaning.
160

164. Under US law, a US statute will prevail over a US regulation where the two measures are
inconsistent.
161 In addition, although an agency such as the USDOC may promulgate regulations

158 Section 751(c)(4) of the Tariff Act of 1930, codified at 19 U.S.C. § 1675(c)(4) (ARG-33).
159 This is the meaning of the phrase to "An interested party described in section 1677(9)(A) or (B)."
160 See Shoshone Indian Tribe v. United States, 364 F.3d 1339, 1349 (Fed. Cir. 2004) ("[a]ccepted rules
of statutory construction suggest that we should attribute meaning to all of the words in the Act if possible");
Texas State Comm'n for the Blind v. United States , 796 F.2d 400, 419 (Fed. Cir. 1986) ("Basic principles of
statutory construction require that effect should be given to every word of the statute so that no part will be
rendered meaningless.") see also Norman J. Singer, Sutherland on Statutory Construction, Section 46:06 (6
th ed.
2000) ("A statute should be construed so that effect is given to all its provisions, so that no part will be
inoperative or superfluous, void or insignificant . . . .").
161 Aerolineas Argentinas v. United States , 77 F.3d 1564, 1575 (Fed. Cir. 1996) (holding that "a
regulation cannot override a clearly stated statutory enactment" (citing Brush v. Office of Personnel
Management, 982 F.2d 1554, 1560 (Fed. Cir. 1992) (noting that a "regulation must be held to be invalid since it
does not comport with the clear statutory mandate")); see also United States v. Larionoff , 431 US 864, 873
(1977) (concluding that a regulation is valid only if it is consistent with the statute under which it was
promulgated).

pursuant to authority granted by Congress, that ag ency cannot through rule making confer on itself
any greater authority than that conferred under the governing statute.
162 Accordingly, where, as is the
case, the statute mandates that when a party elects not to participate in a USDOC sunset review, the
USDOC shall conclude that dumping is likely for that company, the Congressional mandate of the
statute cannot be overridden by USDOC's modification of the regulation so that the statutory mandate
becomes less broad.

165. In other words, under US law, USDOC cannot contravene the clear intent of Congress as
expressed in the statute (which intent mandates a company-specific likelihood determination for any
company that elects not to participate in a USDOC sunset review), by modifying the implementing
regulation in a manner that reduces the reach of the statute to include only a subclass of parties that
elect not to participate in sunset reviews (i.e., those that file affirmative statements of waiver).

166. Consequently, notwithstanding an expression of how USDOC would implement the waiver
provisions or regulatory text to the contrary, the operation of the statute nonetheless continues to
operate in a manner inconsistent with US WTO obl igations. Section 751(c)(4)(B) directs a company-
specific finding of likelihood for any respondent interested party that elects not to participate in the
USDOC sunset review, and is therefore incons istent with Article 11.3 of the Anti-Dumping
Agreement.

B. CASES THAT INVOLVE MULTIPLE EXPOR TERS, WHERE SOME MAY FILE AFFIRMATIVE
STATEMENTS OF WAIVER (AND ADMIT THAT THEY ARE LIKELY TO DUMP), WHILE
OTHER EXPORTERS PARTICIPATE AND TRY TO PROVE THAT DUMPING WOULD NOT BE
LIKELY

167. It is clear that the statute mandates a finding of likely dumping with respect to a respondent
party that files an affirmative statement of waiver and an admission that it is likely to dump. The
statute mandates such a finding, and the United States takes the position that this is consistent with US
WTO obligations because the compan y's admission constitutes positive evidence regarding what it is
likely to do if the order were revoked.
163

168. The question for this Panel, however, is whether under such a circ umstance, the USDOC's
order-wide (i.e., country-wide) determination wo uld be affected by the statutorily-mandated
company-specific finding of likely dumping.

169. Article 11.3 permits a WTO Member to c ontinue an anti-dumping duty beyond five years
only when certain strict requirements have been satis fied. The administering authority is required to
conduct a "review" and to make a "determina tion" that both dumping and injury would be
likely/probable in the event of termination of th e duty. The review and determination required to
extend the anti-dumping duties beyond five years must be forward-looking, based on positive
evidence, and must be the result of a rigorous examination of the evidence adduced by the
authorities.
164 Compliance with the strict requirements of Article 11.3, as those obligations have been
clarified by the Appellate Body, necessitates that a WTO Member adhere to certain minimum
disciplines in making a sunset determination. In the absence of compliance, the duty must be
terminated.

162 Killip v. Office of Personnel Management , 991 F.2d 1564, 1569 (Fed. Cir. 1993) (holding that
"[t]hough an agency may promulgate . . . regulations pursuant to authority granted by Congress, no such . . .
regulation can confer on th e agency any greater author ity than that conferred under the governing statute")
(citing Bowen v. Georgetown Univ. Hosp. , 488 US 204, 208 (1988); Ernst & Ernst v. Hochfelder , 425 US 185,
213-14 (1976)).
163 See US First Submission, paras. 17-21.
164 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, paras. 105, 111-115.

170. When a party affirmatively waives its partic ipation, the regulation prevents the USDOC from
developing the requisite factual information. Even assuming arguendo that an admission of likely
dumping could constitute positive evidence, USDOC is still required to conduc t a "review" and to
make a "determination" that dumping would be likely/probable in the event of termination of the duty.
The review and determination required to extend the anti-dumping duties beyond five years must be
forward-looking, based on positive evidence, and must be the result of a rigorous examination of the
evidence adduced. 165 That determination cannot be based on "assumptions" based on a statutorily-
mandated finding of likelihood and rema in consistent with the requirements of Article 11.3. In a case
where other evidence adduced conflicts with an "a dmission of likely dumping", the authority would
not have the discretion to weigh that evidence against the admission made by the waiving party.

171. The probative value that should be assigned to an "admission," like any piece of evidence,
could vary significantly from c ase to case depending upon the circumstances in which the admission
is made and competing evidence. Therefore, an evaluation of the assessment of this evidence will
always be necessary before reaching a conclusion. The statutory waiver provision would permit no
such assessment and would require a finding of likely dumping for that company. And as the
Appellate Body has already ruled, a statutorily-mandated, company-specific finding will always have
an affect on USDOC's country-wide determination.

172. In the end, the US choice of implementation is curious. The problem is quite clear:
statutorily-mandated findings of likelihood are inconsis tent with the obligations of Article 11.3. The
United States should have eliminated the provision. As long as it is there, USDOC will be required to
make statutorily-mandate findings in cases where co mpanies have "admitted" that they would likely
dump, and that finding will affect the country-wide determination. Also, USDOC may have to make
such findings for companies who invoke their statutory right without filing an affirmative statement of
waiver. There is no basis for this Panel to find that this constitutes compliance with US obligations.

VII. THE UNITED STATES PROVIDES NO REASON WHY THIS PANEL SHOULD
NOT EXERCISE ITS DISCRETION AND SUGGEST THAT THE UNITED STATES
REVOKE THE ANTI-DUMPING MEASURE

173. The United States offers a short and formalistic response to Argentina's request that the Panel
exercise its discretion in this case and suggest th at the measure be terminated. The United States
asserts that it is unclear whether Argentina is ask ing for a recommendation or a suggestion, but that,
either way, the Appellate Body has already ruled that there is no right to termination.
166

174. Argentina is surprised by the US claim of c onfusion. Argentina has raised the issue of its
right to termination of the anti-dumping measure on OCTG from Argentina throughout the course of
this proceeding. Argentina requested that the original Panel exercise its discretion under DSU
Article 19.1 and suggest that the measure be terminated,
167 and made a similar request to the
Appellate Body in the subsequent appeal. 168 Argentina's position that it had a right to termination of
the anti-dumping measure also figured prominently in the consultations between the parties prior to
the establishment of the original panel, and prior to the establishment of the compliance panel.

175. The primary issue before this Panel is to determine whether the United States is now in
compliance with its obligations under Article 11.3 a nd Article 6.2. For the reasons explained by
Argentina, the United States is not in compliance. Also, given the manner in which the United States
attempted to bring itself into compliance, the United States violated Article 6. Argentina respectfully

165 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, paras. 105, 111-115.
166 US First Submission, paras. 85-86.
167 See Argentina's First Submission (before the original panel), 15 October 2003, paras. 315-323.
168 See Other Appellant's Submission of Argentina, 15 September 2004, paras. 300-307.

requests that this panel make specific rulings that establish the failure of th e United States to bring
itself into compliance. These are set forth in paragraph 225 of Argentina's First Submission.

176. In addition, Argentina also is asking that th is Panel suggest that the anti-dumping duty order
on OCTG from Argentina be terminated. The reas ons are explained clearly in Argentina's First
Submission.
169 The Panel declined in the first instance because it saw "no particular reason" for such
a suggestion. 170 The US purported attempts to implem ent the recommendations and rulings of the
DSB provide all the particular reasons necessary why a suggestion is appropriate in this case.

177. The US citation to the Appellate Body decision in US – OCTG From Mexico does not settle
the issue. The Appellate Body has made several stat ements relevant to the nature of the obligations
under Articles 11.3 and 11.4 of the Anti-Dumping Agreement, including that:

Article 11.3 imposes a temporal limita tion on the maintenance of anti-dumping
duties. It lays down a mandatory rule with an exception. Specifically, Members are
required to terminate an anti-dumping duty within five years of its imposition
"unless" the following conditions are satisfied: firs t, that a review be initiated before
the expiry of five years from the date of the imposition of the duty; second, that in the
review the authorities determine that the expiry of the duty would be likely to lead to
continuation or recurrence of dumping; and third, that in the review the authorities
determine that the expiry of the duty woul d be likely to lead to continuation or
recurrence of injury. If any one of these conditions is not satisfied, the duty must be
terminated.
 171
178. In conducting the requisite "review" and "d etermination" under Article 11.3, the Appellate
Body's clarifications of these obligations confirm that USDOC was required to:

• make a prospective determination, requiring a forward-looking analysis;
• take an active rather than a passive role in developing and assessing the information;
• act with an appropriate degree of diligence and arrive at a reasoned conclusion on the
basis of information gathered as part of a process of reconsideration and examination;
• not simply assume that likelihood exists; and
• assess the information before it objectively and to have a sufficient factual basis to
allow it to draw reasoned and adequate conclusions concerning such likelihood.
172

179. These clarifications by the Appellate Bo dy are consistent with its statement in US – OCTG
from Mexico , and do not preclude a suggestion by this Pa nel that the United States terminate the
measure. Rather, the Appellate Body stated that a WTO-inconsiste nt determination under
Article 11.3 would not necessarily lead to termination immediately.

The fact that the USDOC acted inconsistently with the requirements of Article 11.3 in its likelihood-
of-dumping determination does not necessarily imply that the underlying anti-dumping duties must be
terminated immediately. The mere fact that Article 11.3 sets a temporal limit for termination of an
anti-dumping duty, in the absence of a review leadin g to a WTO-consistent determination under that

169 See Argentina's First Submission, paras. 210-224.
170 Panel Report, US – Oil Country Tubular Goods Sunset Review, para. 8.5.
171 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , paras. 104-105 (emphasis
added).
172 See Argentina's First Submission, paras. 43-49.

Article for its continuation, does not affect the other provisions of the DSU governing the
implementation of the recommendations and rulings of the DSB, including, inter alia, the means of
implementation and the reasonable period of time accorded to the implementing Member for
implementation.
173

180. Argentina believes that the Appellate Body re ferences to the DSU indicate that the Appellate
Body was reacting to the notion that immediate termination would undermine the Member's ability to
reach its own conclusions – in light of the DSB rulings. This does not mean, however, that the
Appellate Body meant to retreat from its earlier statements that, in the absence of compliance with the
strict requirements of Article 11.3, the measure mu st be terminated. Rather, the Appellate Body
simply recognized that the defending Member has a right to reach that conclusion on its own, and that,
in some cases, it might not be necessary to make the suggestion to terminate.

181. In this case, it is necessary. The US DOC has now made insufficient likelihood
determinations twice. The United States h as continued the anti-dumping measure on OCTG from
Argentina without ever engaging in the "review" and making the "determination" required by
Article 11.3.

182. This Panel enjoys discretion under DSU Article 19.1, and it should exercise that discretion in
this case. Argentina notes that there have been many instances in which Panels have exercised their
discretion to make a suggestion regarding implementation. Examples include:

• the Panels in both EC – Export Subsidies on Sugar
174 and EC – Trademarks and
Geographical Indications (US) 175 made suggestions on how the EC could bring its
measures into conformity with its WTO obligations;
• in the Argentina Poultry case, the Panel suggested that Argentina repeal the measure
imposing definitive anti-dumping measures on poultry from Brazil;176
• in the "Byrd Amendment" case, the Pa nel called for the repeal of the WTO-
inconsistent US statute;177
• in the US – Textiles from Pakistan case, the Panel called for the prompt removal of
the import restriction;178
• in the Guatemala Cement dispute, the Panel recommended the revocation of the anti-
dumping measure;179; and
• in the Lead Bars case, the Panel called for a revision of US administrative
practices.180

173 Appellate Body Report, US – OCTG from Mexico, para. 187 (emphasis added).
174 Panel Report, European Communities – Export Subsidies on Sugar, Complaint by Australia ,
WT/DS265/R, adopted 19 May 2005, as modified by Appellate Body Report, WT/DS265/AB/R,
WT/DS266/AB/R, WT/DS283/AB/R.
175 Panel Report, European Communities – Protection of Trademarks and Geographical Indications for
Agricultural Products and Foodstuffs, Complaint by the United States , WT/DS174/R, adopted 20 April 2005,
para. 7.208.
176 Panel Report, Argentina – Definitive Anti-Dumping Duties on Poultry from Brazil , WT/DS241/R,
adopted 19 May 2003, para. 8.7.
177 Panel Report, United States – Continued Dumping and Subsidy Offset Act of 2000 ,
178 Panel Report, United States – Transitional Safeguard Measure on Combed Cotton Yarn from
Pakistan, WT/DS192/R, adopted 5 May 2001, para. 8.5.
179 Panel Report, Guatemala – Definitive Anti-Dumping Measures on Gray Portland Cement from
Mexico, WT/DS156/R, adopted 17 November 2000, para. 9.6.

183. This is a non-exhaustive list. Previous pa nels have recognized that suggestions under DSU
Article 19.1 would be appropriate to help promote the resolution of the dispute, particularly in the
present case, where a suggestion is necessary to e nd a "never-ending cycle" of continuous WTO
violations followed by non-compliance in implemen tation. As the Appellate Body in the found in
US – FSC (Article 21.5 – EC II) , given the possibility that complian ce proceedings can be abused and
undermine the underlying rights and obligations of the parties, compliance proceedings should not
"lead to a potentially 'never-ending cycle' of disput e settlement proceedings and inordinate delays in
the implementation."
181 The US "implementing" measures in the present case have created the
prospect of such an interminable cycle.

184. There is very little chance that the Appellate Body would disturb a decision by the Panel to
make a suggestion in this case, just as it did not dist urb this and other Panel decisions not to exercise
its discretion on previous occasions given the au thority explicitly provide d to Panels by DSU
Article 19.1. The issuance of a suggestion would not abuse the discretion afforded by the DSU, and
in this case it is vital to preserve Argentina's right s, and it is necessary to give meaning to the rights
and obligations in Articles 11.3 and 11.4 of the Anti-Dumping Agreement.

VIII. CONCLUSION

185. For the foregoing reasons, Argentina respectfu lly requests that the Panel reject the US
arguments in their entirety and find that the United States has failed to implement the
recommendations and rulings of the DSB, and rema ins in violation of its WTO obligations. In
particular, Argentina requests that the Panel ma ke the findings as requested in paragraph 225 of
Argentina's First Submission.

180 Panel Report, United States – Imposition of Countervailing Duties on Certain Hot-Rolled Lead and
Bismuth Carbon Steel Products Originating in the United Kingdom , WT/DS138/R, adopted 7 June 2000,
para. 8.2.
181 Appellate Body Report, United States – Tax Treatment For "Foreign Sales Corporations" Second
Recourse To Article 21.5 Of The DSU By The European Communities , WT/DS108/AB/RW2, adopted
14 March 2006, para. 86 ("US – FSC (Article 21.5 – EC II)").

Table of Reports Cited

Short Form Full Citation
Argentina – Poultry Panel Report, Argentina – Definitive Anti-Dumping Duties on
Poultry from Brazil, WT/DS241/R, adopted 19 May 2003

Argentina – Tiles
Panel Report, Argentina – Definitive Anti-Dumping Measures
on Imports of Ceramic Floor Tiles from Italy , WT/DS189/R,
adopted 5 November 2001

Guatemala – Cement II (Panel)
Panel Report, Guatemala – Definitive Anti-Dumping
Measures on Grey Portland Cement from Mexico ,
WT/DS156/R, adopted 17 November 2000

US – OCTG (Argentina) (AB)
Appellate Body Report, United States – Sunset Reviews of
Anti-Dumping Measures on O il Country Tubular Goods from
Argentina, WT/DS268/AB/R, adopted 17 December 2004

US – OCTG (Argentina) (Panel)
Panel Report, United States – Sunset Reviews of
Anti-Dumping Measures on O il Country Tubular Goods from
Argentina, WT/DS268/R and Corr.1, adopted
17 December 2004, as modified by the Appellate Body
Report, WT/DS268/AB/R

US – OCTG (Mexico) (AB)
Appellate Body Report, United States – Anti-Dumping
Measures on Oil Country T ubular Goods from Mexico ,
WT/DS282/AB/R, adopted 28 November 2005

US – Corrosion Resistant (AB)
Appellate Body Report, United States – Sunset Review of
Anti-Dumping Duties on Corrosion-Resistant Carbon Steel
Flat Products from Japan,, WT/DS244/AB/R, adopted
9 January 2004

US – Privatization (21.5)
Panel Report, United States – Countervailing Duty Measures
Concerning Certain Products from the European
Communities: Recourse to Article 21.5 by the European
Communities, WT/DS212/RW, adopted 27 September 2005

EC – Bed Linen (21.5) (AB)
Appellate Body Report, European Communities –
Anti-Dumping Duties on Imports of Cotton-Type Bed Linen
from India: Recourse to Article 21.5 of the DSU by India ,
WT/DS141/AB/RW, adopted 24 April 2003

EC – Bed Linen (21.5) (Panel)
Panel Report, European Communities – Anti-Dumping Duties
on Imports of Cotton-Type Bed Li nen from India: Recourse to
Article 21.5 of the DSU by India , WT/DS141/RW, adopted
24 April 2003, as modified by the Appellate Body Report,

US – Shrimp (21.5) (AB)
Appellate Body Report, United States – Import Prohibition of
Certain Shrimp and Shrimp Products: Recourse to
Article 21.5 of the DSU by Malaysia , WT/DS58/AB/RW,
adopted 21 November 2001

US – Zeroing (EC) (AB)
Appellate Body Report, United States – Laws, Regulations
and Methodology for Calculating Dumping Margins
("Zeroing"), WT/DS294/AB/R, adopted 9 May 2006

Exhibit List

Number Document

US-7 Mexican Secretariat of Trade and Indus trial Development, Revised Final Resolution
in the Anti-duping Investigation of High Fructose Corn Syrup, 20 September 2000.

US-8 Small Diameter Circular Seamless Carbon and Alloy Steel Standard, Line, and
Pressure Pipe From Argentina, 60 Fe d. Reg. 31,953 (19 June 1995) (final
determination of sales at less than fair value).

US-9 US Department of Commerce, Public Service List, Section 129 Determination, Oil
Country Tubular Goods from Argentina.

I. INTRODUCTION

1. The United States complied with the DSB recommend ations and rulings in this dispute. First,
the United States amended its regulations to elim inate the possibility that Commerce's order-wide
determinations would be based on assumptions about likelihood or recurrence of dumping.

2. The United States also revised its sunset de termination to remedy its consideration of the
payment of cash deposits (based on a finding of dumping in the original investigation) at the rate of
the original investigation as evidence that dumping ha d continued over the life of the order. Rather
than relying on that information as evidence of a producer's dumping behaviour, Commerce solicited
additional information from the companies identifie d by Argentina as OCTG producers. Neither
company was able to provide cost data from the actual period of review; Siderca provided estimated
data instead. After carefully reviewing the estimat ed data, Commerce considered the information to
be unreliable and made no finding as to whether Si derca had likely dumped over the period of review.
With respect to Acindar, Commerce reviewed data from secondary independent sources and
concluded that Acindar had likely dumped during th e period of review. Therefore, Commerce cured
the flaw identified by the original Panel.

3. Argentina contends that Commerce erred in collecting new information. The United States is
unaware of any other dispute in which a complaining party took issue with an investigating authority's
collection of new and relevant information in taking a measure to comply with DSB recommendations
and rulings. As discussed further below, the Unite d States has collected new information in the past;
so has Mexico, for example. Even the arbitrat or establishing the reasonable period of time under
Article 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of Disputes
("DSU") understood that Commerce would collect new information, only inquiring to confirm that
such information would be confined to the original review period.

4. Indeed, a recurring theme of this dispute is th e Argentine respondents' persistent reluctance to
fulfil their obligation to provide the US Departme nt of Commerce ("Commerce") with information,
information that Argentina in this proceeding has asserted was necessary for Commerce to make an
affirmative determination. While Argentina empha sizes Commerce's obligation to be "active" rather
than "passive" – without explaining just what th at means – Argentina ignores the Appellate Body's
recognition of the fact that exporters often possess the best evidence of their likely future pricing
behaviour.
1 In the original review, Siderca filed the thinnest of submissions and purported not to
know the identity of the lone shipper of Ar gentinean OCTG during the period of review. 2 T h a t
shipper turned out to be Acindar – which never iden tified itself, preferring not to participate in the
sunset review at all.

5. Having persuaded this Panel that the info rmation upon which Commerce relied in concluding
that dumping continued over the life of the orde r was insufficient, Argentina now complains that
Commerce has collected information to remedy the defi ciency in the review record attributable to the
refusal to participate by the longer shipper of Arge ntina OCTG at that time. The record reveals why
Argentina has adopted this argument: the Argentine respondents did not provide key information that
Commerce requested into seeking to comply with the DSB recommendations and rulings. Siderca
elected to provide estimated cost data that was five to ten years out of date; Acindar provided no cost
data at all.

6. In spite of all of this, Argentina attempts to lay blame for any evidentiary deficiencies on
Commerce. Argentina goes further, advancing claims under Article 6 of the Agreement on
Implementation of Article VI of the Ge neral Agreement on Tariffs and Trade 1994 ("AD Agreement")

2 Siderca 2 August 2000 Submission, at 3 (Exhibit ARG-25)

are simply unwarranted. Argentina acts as though it has obtained an "admission" from the United
States that those aspects of Article 6 relating to ev idence and procedure are applicable to the measure
taken to comply. But the United States has never said anything to the contrary.

7. The United States takes its Article 6 obliga tions seriously. Indeed, Commerce went beyond
the actual recommendations and rulings of this dispute, amending its regulations in order to make it as
clear as possible that respondent interested partie s may request a hearing. Argentina's response:
Commerce is in breach because respondents did not requ est a hearing. Similarly, one of Argentina's
Article 6 claims is based on Commerce's "late" placement on the record of the following background
information:

 About Preston Price Publishing
 Preston Publishing is the "scorekeeper" in today 's ever-changing pipe & tube market. We do
not buy, sell, manufacture or distribute pipe & tube.
 Preston Publishing Company, Inc. Was created in 1980 by Douglass P. Yadon, to track the
world's shipment and consumption of steel pipe & tube.
 His 40 years of experience in the pipe and tube business has included both marketing and
operations, and he has served as a consultant to the industry, as well as US and foreign
governments.

8. The actual price information had been put on the record on 22 November 2005. Thus,
Argentina takes issue not with the time when the actual price data were placed on the record, but
rather with the time when purely descriptive information about the company that was the source of the
price data was placed on the record. This is just one example of what Argentina holds up as a breach
of Article 6 that should subject the United States to suspension of concessions for failing to comply in
this dispute.

9. More perplexing still, Argentina takes the unusual position of advancing an argument that
squarely contradicts findings the Panel made in the original pr oceeding. Unable to demonstrate that
an exporter's admission of likely dumping is anything but positive evidence, and unable to
demonstrate that any information would be more probative in connection with a company-specific
finding than that admission, Argentina now in sists that Commerce erred by amending only the
regulations to come into compliance with the Panel's findings regarding "deemed waivers." However,
Argentina's argument requires the Panel to conclude that it erred when it expressly found that the
"deemed waiver" category was a creation of the regulations, rather than the statute. The United States
is not aware of any Article 21.5 proceeding in which a panel declared itself to have made an erroneous
finding – and then found that the responding party fa iled to comply on the basis of the panel's own
alleged error. That approach seems to turn the purpose of compliance proceedings on their head.
3

10. Argentina has sought to bury these proceedings in an avalanche of claims that it cannot
substantiate. The measures taken to comply we re consistent with th e DSB recommendations and
rulings. Argentina is not concerned with whet her the United States actually complied with those
recommendations and rulings; rather, Argentina want s an adverse finding of any kind, no matter how
tenuous the claim. The United States respectfully requests that the Panel d ecline to indulge that
request.

3 See, e.g., US – Shrimp (21.5) (AB), para. 97.

II. THE WAIVER PROVISIONS

11. In its first submission, Argentina asserted that the statutory a nd regulatory provisions
allowing respondents to waive participation in th e Commerce portion of a sunset review are WTO-
inconsistent in situations involving "affirmative waivers," i.e., a situation in which a respondent files a
statement of waiver, which includes an admission that it is likely to dump. Argentina now also asserts
that the waiver provisions are inconsistent in situ ations involving respondent parties who do not file
an affirmative statement of waiver.
4 Both of these arguments are without merit; indeed, the latter
squarely contradicts findings made by the original Panel.

A. AFFIRMATIVE WAIVER

12. In its first submission, Argentina asserted that the waiver statute is WTO-inconsistent because
it had not been repealed, and the amendment to the regulations could not render the statute
"inoperative."
5 The United States rebutted these asser tions by noting that nothing in the
recommendations and rulings required the United St ates to repeal, amend, or render the statute
inoperative. Argentina has not responded to that argument.

13. Argentina deviates from its original argumen t that waiver provisions are inconsistent
whenever a respondent files a statement of waiver. It now contends that the waiver provisions are
inconsistent in a scenario with multiple respondents, some of whom affirmatively waive
participation.
6 Argentina asserts that the waiver provisions prevent Commerce from conducting a
review, as required by Article 11.3, because "other evidence" adducing "conflicts" would not be
weighed against these admissions of likelihood of dumping.7

14. Argentina made the same argument in its first submission. The United States responded:

Argentina fails to specify what factual information is not being developed with
respect to that company, and why that mystery factual information would be more
probative than the company's own admission. It is worth noting that a sunset review
is a prospective and counterfactual inquiry, a nd it is difficult to conceive of evidence
that would establish that a company is not likely to dump in the future when the
company has itself stated that it will.
8
15. Argentina has no response for this argument. Rather, Argentina alters the factual scenario
and then simply continues with the same vague a ssertions about how such a finding would prevent
Commerce from conducting a "review." 9 Regardless of the number of participants in a proceeding,

4 Argentina Second Submission, para. 156.
5 Argentina First Submission, paras. 203-204.
6 Argentina Second Submission, para. 170. Argentina conditions its argument on an " arguendo"
assumption that a statement of likely dumping by an exporter is positive evidence. The United States would
simply note that Argentina has offered no argument that such a statement is not positive evidence.
7 Argentina Second Submission, para. 170.
8 US First Submission, para. 18.
9 Japan suggests that importers could file statements that they will not import dumped merchandise.
Japan Third Party Statement, para. 24. However, Japan's assertion here is belied by the Appellate Body's
reasoning (and Japan's own arguments) in US - Zeroing (EC) . In that dispute, Japan took the position that
margins of dumping must be calculated on an exporter-specific basis for all of the exporter's transactions over
the period of review ( US – Zeroing (EC) (AB) , para. 84), and the A ppellate Body agreed. US – Zeroing (EC)
(AB), para. 128. The Appellate Body's analysis means that the margin of dumping must be calculated not on a
transaction-specific basis at the time of importation but ra ther only after the period of review is complete (so
that "all" the exporter's transactions can be taken into account, as Japan and the Appellate Body insist is
required). Therefore, because the margin of dumping cannot be calculated until after the importations have

there is nothing WTO-inconsistent about a company-specific finding of likelihood based on that
company's admission that it is likely to dump. Argentina has not proven the contrary.10

B. "DEEMED" WAIVERS

16. In its second submission, Argentina stretches its arguments even further, arguing that the
statute is WTO-inconsistent because it allegedly mandates a finding of likelihood with respect to
companies that do not participate and do not file a st atement of waiver. Argentina's argument runs
contrary to the express findings this Panel made with regard to the statute.
11

17. The United States recalls the Panel's descrip tion of the operation of the waiver provisions:

According to Section 751(c)(4)(A) of the Tari ff Act, an interested party in a sunset
review may elect to waive its right to pa rticipate in the USDOC part of a sunset
review. Section 351.218(d)(2)(i) of the Regul ations provides that interested exporters
who wish to waive participation may do so by submitting a statement of waiver to the
USDOC. Under Section 351.218(d)(2)(iii) of the Regulations, an exporter's failure to
submit a complete substantive response to the notice of initiation is deemed to
constitute a waiver of its right to participate in the USDOC proceedings. In either
case, the application of Section 1675(c)(4) of the Tariff Act leads to the same result:
The USDOC "shall" find likelihood of continuation or recurrence of dumping with
respect to an exporter which waives its right to participate.
We consider it important to note that the distinction between affirmative and deemed
waivers stems from Section 351.218(d)(2)(iii) of the Regulations, not the Tariff Act .
The Tariff Act simply provides that interested parties may choose not to participate in
the USDOC part of a sunset review, and that the effect of a waiver is an affirmative
finding of likelihood by the USDOC. Sec tion 351.218(d)(2)(iii) of the Regulations,
however, creates the deemed waiver category by stipulating that submission of an
incomplete, or no, response to the notice of initiation also constitutes a waiver.
Therefore, our findings regarding affirmative waivers will have implications on the
Tariff Act whereas those relating to deemed waivers will only affect
Section 351.218(d)(2)(iii) of the Regulations.
12

been made, and cannot be calculated at the time of importation, the importer will have no way of knowing at the
time of importation whether it was importing dumped merchandise into the United States. The importer will not
know until after the period of review is complete, at some later date. Thus, Japan is suggesting that the importer
file a statement that of necessity would be speculative; as a result, the probative value of such a statement could
not possibly outweigh the exporter's own statement that it is likely to dump.
10 Argentina casually, and without citation, states th at "statutorily-mandated findings of likelihood are
inconsistent with the obligations of Article 11.3." See, Argentina Second Submission, para. 172. That is simply
not correct. The Appellate Body cons idered that a statutorily-mandated assumption of company-specific
likelihood was not WTO-inconsistent. See, e.g. , US – OCTG (Argentina) (AB) , para. 232. (The phrase
"statutorily-mandated" does not appear in the original Pa nel's report; rather, the original Panel stated that an
investigating authority simply cannot assume, without further inquiry, that a company is likely to continue
dumping simply because it did not participate in a review. See US – OCTG (Argentina) (Panel) , para. 7.107.)
As the United States has noted, any "statutorily-manda ted" finding is no longer based on an assumption but
rather on evidence provided by the respondent itself. Argentina has failed to explain how a respondent's
statement that it is likely to dump would not constitute "positive" evidence.
11 While Argentina states in Section VI.A of its second submission that the statute requires such a
finding, Argentina later is less definitive, stating that "USDOC may have to make" a company-specific
likelihood determination for companies that do not file an affirmative statement of waiver. See Argentina
Second Submission, para. 172.
12 US – OCTG (Argentina) (Panel), para. 7.84-7.85 (emphasis added).

The Appellate Body did not disturb these findings.

18. The circumstance Argentina d escribes – where a respondent do es not participate but does not
file a statement of waiver – is precisely what the Panel had called a "deemed waiver":

according to Section 351.218(d)(2)(iii) of the Regulations, the USDOC will consider
the failure of an interested party to su bmit a complete substantive response to the
notice of initiation of a sunset review to c onstitute a waiver of participation in the
USDOC's sunset review proceedings. We will refer to this as an "implicit " or
"deemed" waiver.
13
19. Commerce repealed Section 351.218(d)(2)(iii) and thus eliminated the deemed waiver
provision, and Argentina does not argue to the contrary. Rather, Argentina now argues that the statute
requires Commerce make an affirmative finding with respect to companies that do not file a statement
of waiver and do not participate. But that argument runs counter to the Panel's own findings in the
original proceeding. The Panel could not have made it clearer that the "deemed waiver" findings had
no implications for the statute, but only for the regulati ons. Therefore, the United States came into
compliance by amending only the regulations.

III. THE SECTION 129 DETERMINATION

20. Argentina continues to assert that Commerce w as not entitled to collect new information, and
that in any event Commerce's new determinati on is inconsistent with Article 11.3 of the
AD Agreement.

A. COMMERCE'S USE OF "N EW FACTUAL INFORMATION

21. Argentina advances a position regarding the u se of "new factual information" that is found
nowhere in the text of the DSU, nor has it ever b een referred to by a panel or the Appellate Body.
Argentina asserts that Commerce could only have lo oked at "new" factual information (as opposed to
"clarifying" information)14 if the DSB had upheld the evidentia ry basis for Commerce's decision but
found that Commerce had "failed to explain adequately its decision."15

22. Argentina's argument would ha ve the curious consequence of permitting authorities to collect
new information only where that information is unnecessary. If a Member's decision were found to
have a "sufficient evidentiary basis," it would not, by definition, be necess ary to gather additional
evidence. Therefore, Argentina's argument eff ectively would prevent Members from ever collecting
new information when doing so would be necessary.

23. Argentina argues that the textual basi s for its position is found in Article 11.3.
16 However,
Article 11.3 says nothing about when new information can or cannot be collected. The only
"temporal limitation" in Article 11. 3 is that the review must be initiated before the five year

14 Argentina has failed to explain why the information Commerce collected does not fall within the
category of "clarifying" information. In response to the US argument that Argentina failed to explain the
distinction between "new" information and "clarifying" information, Argentina simply states that, "[f]or
Argentina, the distinction is clear in this case ." Argentina Second Submission, para. 14 (emphasis in the
original). Argentina simply asserts that the collected information was not "clarifying." Argentina Second
Submission, para. 16. Again, Argentina fails to explain what that means.
15 Argentina Second Submission, para. 12.
16 Argentina Second Submission, para. 10.

anniversary of the imposition of the order. Further, while Argentina suggests that its argument about
"temporal limitations" and its effect on a Member's ab ility to collect new information is restricted to
the facts of "this case," it is difficult to see how that is so. In particular, the United States does not see
why that reasoning would not be equally applicable to, for example, a Member's measure taken to
comply in connection with investigations. Under Article 5.10, investigations are subject to even
stricter "temporal limitations": they must be concluded within 18 months. According to Argentina's
theory, a Member that has to bring an investiga tion into compliance with WTO obligations would not
be permitted to collect new information.

24. That theory runs counter to Members' conduc t in past proceedings. As the United States
noted in its first submission, the panel in US – Privatization (21.5) concluded that the United States
was obliged to look at new information to come into compliance.
17 Argentina attempts to distinguish
that report by contending that, "[f]inding that the authority has an obligation to consider evidence
provided by the parties is not the same as saying that the authority has the right to develop the
requisite evidentiary basis at any time . . ." 18 Thus, Argentina offers the view that if respondents, of
their own accord, asked Commerce to consider additional facts, Commerce must do so; but
Commerce cannot ask producers for that same inform ation. The United States is unable to see the
logic in such a proposition, which also has no basis in the text of the DSU.

25. Moreover, the United States is not the only Member to take the view that Members may
collect new information. For example, in Mexico – Anti-Dumping Investigation of High-Fructose
Corn Syrup (HFCS) from the United States (WT/DS132), Mexico sought to bring its measure into
compliance inter alia by soliciting new information rega rding its injury determination.
19 Therefore,
the United States is not alone in its view that the collection of new information for purposes of
coming into compliance is permissible.

26. Further, in its first submission, the United States noted that the arbitrator in the proceeding
under Article 21.3(c) of the DSU understood that Commerce would be collecting new information
(e.g., through the questionnaires iden tified in the US submission)
20 as part of its efforts to bring the
measure into compliance – additional evidence that Ar gentina's position in this dispute is untenable.
In response, Argentina argues that the arbitrati on report does not reflect the discussion as to whether
Commerce's collection of new information would be confined to the original period of review.
Notably, Argentina does not deny that the dialogue in question occurred. In any event, the United
States merely made the point about the discussion of the collection of new information during the
arbitration proceeding to highlight the general understa nding, apparently shared by the arbitrator, that
Members may collect such information as part of their efforts to come into compliance.

27. Finally, Argentina repeats its assertion that it had a "right" to termination of the order. 21 In its
first submission, the United States pointed out that the Appellate Body has rejected this view. 22
Argentina fails to explain how it can continue to argue that it had a right to termination under
Article 11.3 when that theory has been dismissed.

17 US – Privatization (21.5), paras. 7.252-7.253.
18 Argentina Second Submission, para. 20.
19 Mexican Secretariat of Trade and Industrial Development, Revised Final Resolution in the
Anti- Dumping Investigation of High Fructose Corn Syrup, 20 September 2000, para. 11 (Exhibit US-7).
20 US Submission under Article 21.3(c), US – OCTG (Argentina), p. 3.
21 Argentina Second Submission, para. 25.
22 US First Submission, para. 85.

B. THE FINDING THAT DUMPING WAS LIKELY TO CONTINUE OR RECUR

1. Significant Decreases in Import Volumes

28. The United States explained in its first submis sion that Argentina has not demonstrated that
the volume finding is a measure taken to comply. As the United States pointed out in its first
submission, the Appellate Body has already reasoned that "we do not see why that part of a
redetermination that merely incorporates elements of the original determination . . . would constitute
an inseparable element of the measure taken to comply with the DSB rulings in the original dispute."
23
Argentina itself noted that the volume finding in the Section 129 determination was simply a
"restatement of the inference" Commerce drew in 2000. Therefore, Argentina effectively
acknowledges that Commerce simply did what the EC did in EC – Bed Linen : incorporate into a
redetermination a finding from the original determina tion that it did not change, and did not have to
change, to come into compliance.

29. In response, Argentina attempts to disti nguish the present situation, arguing that here,
Commerce "relied" on this finding for the "separ ate and independent purpose of its implementing
measure."
24 But Argentina fails to explain how Comm erce "relied" on the volume finding any more
than the EC relied on its "other factors" analysis.

30. The United States considers it useful to recall the panel's reasoning in EC – Bed Linen (21.5).
The panel recognized the difference between an original proceeding and a proceeding under
Article 21.5. Under an original proceeding, a Memb er has an opportunity to bring its measure into
compliance within a reasonable period of time. Under an Article 21.5 proceeding, a Member found to
have acted inconsistently with its WTO obligatio ns does not have a reasonable period of time to
comply; rather, the complaining party may pro ceed with a request for – and perhaps obtain –
authorization to suspend concessions or other obligations.
25 The panel further noted that parts of
panel reports that are not appealed must be considered final.26

31. Those discussions are directly relevant to th e situation here. The original Panel made no
finding that the United States had acted inconsistently with its WTO obligations in connection with its
volume analysis. Argentina did not appeal the orig inal Panel's decision not to make a finding. It
would be unfair for the United States, which was unde r no obligation to take an action with respect to
the volume analysis, to find out for the first time in an Article 21.5 proceeding that the Panel
considers that analysis deficient. The United States could then be faced with a request for
authorization to suspend concessions, with no reasona ble period of time to bring the measure into
compliance.

32. Argentina suggests that the United States was obliged to reconduct its volume analysis under
the theory that the "jurisprudence at the time" implied that Commerce's volume finding would be
WTO-inconsistent. It bears repeating that the Unite d States is obliged come into compliance with the
DSB recommendations and rulings in this dispute, not on alleged "jurisprudence" in other disputes.
The DSB made no such recommendation or ruling in th is dispute. Further, the Appellate Body has
explained that rulings in other disputes cannot "in and of themselves" establish WTO-inconsistency in
a separate dispute.
27 Indeed, Argentina is not even arguing that rulings in other disputes form the
"jurisprudence" in question; rather, Argentina seeks to rely on dicta that did not even result in an
adverse finding.

24 Argentina Second Submission, para. 98.

33. Argentina also argues that Commerce "ignored " information Siderca placed on the record
explaining the decline in import volumes. Commerce did not "ignore" the information. The
information was not germane to the question at hand. As the Panel may recall, Commerce was faulted
in the original proceeding for basing its conclusion about the Argentine producers' dumping behaviour
over the life of the order on the fact that an importe r had paid cash deposits at the rate of the margin
from the original investigation. To remedy that flaw, Commerce solicited information as to
respondents' behaviour. That included a request for raw data on shipments made during the period of
review; if a respondent had not shipped during the period of review, then Commerce would take that
fact into account in evaluating what the respondent's dumping profile had been over the life of the
order. That is precisely what Commerce did with respect to Siderca, concluding that the absence of
shipments, together with the unusable cost data, me ant that no finding would be made with respect to
Siderca.
28

2. Acindar

34. With respect to the likelihood that Acindar wa s dumping over the life of the order, Argentina
argues that Commerce can only rely on actual determinations of dumping, 29 rather than a finding that
dumping had likely occurred over the life of the orde r. Argentina's argument ignores the fact that
Article 11.3 provides no methodology for making a sun set determination, and in particular does not
require a Member to make an actual determination of dumping. But it also has a more pernicious
implication: it would enable respondents to manipulat e the system by first depriving the investigating
authority of information and then asserting that the lack of information prevents the investigating
authority from continuing the order.

35. First, the Appellate Body has confirmed th at Members are not obliged to calculate dumping
margins in sunset reviews. Indeed, the existe nce of dumping itself is not a prerequisite to
continuation of an order: Footnote 22 of the AD Agreement expressly provides that even if dumping
has ceased over the life of the order, the order ne ed not necessarily be terminated. Thus, if it is
acceptable to continue an order when dumping h as ceased, there is no reason why it cannot be
acceptable to continue an order when the existence of dumping over the life of the order was likely.

36. Second, the paucity of information on the r ecord as to whether Acindar dumped over the life
of the order is due entirely to Aci ndar's own choices. Acindar declined to participate in the original
sunset review and, therefore, provided no information on which Commerce could base its
determination. Moreover, in the Section 129 proc eeding, Acindar declined to provide any cost
information from which Commerce could evaluate whether Acindar had likely dumped over the life
of the order.
30 Indeed, Article 11.3 makes it clear that even if dumping had not continued, the order
would not necessarily have to be revoked. Therefor e, it stands to reason that if there is no evidence
from which to deduce whether dumping did or did not occur, the investigating authority may deduce
whether it was likely that dumping occurred over the life of the order. If not, then a respondent would
have the incentive to withhold evidence from the record in order to secure termination of the order.

37. Argentina asserts that Commerce's finding that Acindar was likely dumping during the period
does not meet the requirements of actual dumping unde r Article 2 and should not be part of the basis
for Commerce's likelihood determination.
31 However, Article 11.3 has no requirement that any

28 Section 129 Determination, p. 9.
29 Argentina Second Submission, para. 40.
30 Indeed, it is curious that Acindar did not, like Siderca, attempt to provide any cost information, even
cost information from a timeframe after the period of re view. The United States recalls that Acindar had been
found to have dumped during the period immediately after the review.
31 Argentina Second Submission, para. 43.

finding of past dumping be made. In fact, Article 11.3 does not specify any criteria that must form the
basis for a likelihood determination. Simply because the Appellate Body has recognized that
Article 2 determinations of dum ping during the period are a sufficient basis for likelihood does not
mean that other types of evidence cannot also be a su fficient basis for a likelihood determination. In
fact, the Appellate Body explained that:

the Panel correctly noted that Article 11 .3 does not expressly prescribe any specific
methodology for investigating authorities to use in making a likelihood determination
in a sunset review. Nor does Article 11. 3 identify any particular factors that
authorities must take into account in making such a determination. Thus, Article 11.3
neither explicitly requires authorities in a s unset review to calculate fresh dumping
margins, nor explicitly prohibits them from relying on dumping margins calculated in
the past. This silence in the text of Article 11.3 suggests that no obligation is
imposed on investigating authorities to calculate or rely on dumping margins in a
sunset review.
32
Argentina provides no textual or legal support rebutting the US position that, in the absence of
previous Article 2 determinations of dumping, a Member can rely upon findings that a party was
likely dumping during the period and thus, would likely dump should the order be revoked.

38. Argentina argues that the United States should no t have referred to the fact that Acindar was
dumping at a 60.73 per cent margin in its first submission to this panel.
33 Argentina is correct that
this finding did not occur until after the original s unset review was conducted. In its Section 129
Determination, Commerce did not rely on this finding that Acindar was dumping because the finding
was not published until after the original sunset determination was issued. Commerce only relied
upon information available to it at the time of th e original sunset review for its Section 129
Determination. The United States cited to this findi ng of Acindar's dumping in its first submission to
demonstrate that its conclusions of likelihood were, in fact, accurate.

39. Argentina asserts that Commerce should have controlled for various factors that would have
had an impact on the price comparisons between Ac indar's sales and US average prices. Specifically,
Argentina argues that because the Preston Pipe & Tube Report does not report prices by specific size
of pipe, and does not discriminate between plain end casing and casing that is threaded and coupled,
Commerce did not control for the physical char acteristics of the products being compared.
34
Argentina also argues that Commer ce should have adjusted for diffe rent delivery terms between the
Preston Pipe & Tube Report ( i.e. US average unit values) and Acindar's sales data gathered from
CBP.35

40. Though these factors could have affected the price comparisons, Commerce had to rely on the
available data to make its comparisons. The Pr eston Pipe & Tube Report did separate products by
type of OCTG, whether welded or seamless, and whet her carbon or alloy. These distinctions are the
most critical for price comparisons. Its segregation of carbon welded tubing from carbon welded
casing (the products that Acindar sold in the Unite d States) does address much of the size concern
Argentina raises as tubing is a small tubular product in limited sizes, and casing is larger size material.
Additionally, though the report does not distinguish between end finish (e.g. plain vs. threaded and
coupled), the universe of material included in the carbon welded tubing and carbon welded casing
groups does include both plain and threaded and coupl ed material, diminishing any impact this may
have on price comparisons. There was also insuffici ent data regarding Acindar's movement expenses

33 Argentina Second Submission, paras. 55-60.
34 Argentina Second Submission, para. 50.
35 Argentina Second Submission, para. 50.

to allow for adjustments to account for different de livery terms. Even had Commerce been able to
adjust for these factors, Acindar's sales prices were so far below the US average prices that the end
result would likely have not changed.

41. Argentina then argues that the United States should have taken into account the fact that
Acindar: was not investigated during the original investigation; principally produced steel long
products; began producing OCTG in 1998; and was not a significant producer of OCTG.
36 None of
these "facts" have any bearing on a likelihood determin ation. The only relevant facts are that Acindar
exported subject OCTG to the United States during the period and was the only Argentine exporter,
since the other exporter, Siderca, diverted its sh ipments to other export markets after the order was
imposed. The size of Acindar's exports or its production mix is irrele vant. Commerce properly
focused its likelihood determination on Acindar's act ual export prices of OCTG to the United States.
The other arguments listed by Argentina do not invalidate Commerce's finding that Acindar was
likely dumping subject merchandise during the period a nd would likely continue to dump if the order
was revoked.

42. Argentina next argues that Commerce "dis torted and misused the information from the
financial statements in this case." 37 This contention is unfounded. Information from Acindar's
financial statements demonstrated that its "strateg y has been and will continue to be to focus on the
Argentine market while using the export market to stabilize its overall sales volume during periods of
slowdown in domestic economic activity ."38 In the Section 129 Determination, Commerce explained
that, in "other words, Acindar planned to con tinue export sales in order to maintain its sales
volume."39 In light of the information gathered from Acindar's financial statements that it had
decreasing sales and operating income, increasing cost s, and overall losses, Commerce concluded that
Acindar would likely export OCTG to the United States. Consequently, considering the depressed US
OCTG market, and the fact that Acindar's selling pr ices "were substantially lower than prevailing US
market prices," Commerce concluded that it was lik ely that Acindar was dumping during the period
and would continue to do so if the order was revoked.40

43. Argentina argues that the information Commerce relied upon from Acindar's financial
statements was not relevant to OCTG because OC TG was only a small percentage of Acindar's
overall sales.
41 But the percentage of Acindar's overa ll sales represented by OCTG was itself not a
not a relevant fact. The relevant point was that Acindar stated it would use exports to stabilize its
overall sales volume, and this was confirmed by th e fact that Acindar had been exporting OCTG
during the period it was experiencing financial difficulti es. Furthermore, the fact that its tube and
structural division, of which OCTG is included, was profitable supports the conclusion that Acindar
will continue to rely on this division to improve its overall situation. Acindar's financial statement
provided affirmative evidence of the likelihood that it would continue to export to the US market.

3. Siderca

44. Argentina continues to argue that Commerce e rred in declining to make any finding regarding
Siderca. Specifically, Argentina asserts that "in the event that the authority can find no positive

36 Argentina Second Submission, para. 53.
37 Argentina Second Submission, para. 54.
38 Section 129 Determination, at 10-11 ( quoting Acindar's 2000 financial statement, at 12) (emphasis
added) (Exhibit ARG-16).
39 Section 129 Determination, at 11 (Exhibit ARG-16).
40 Section 129 Determination, at 7-8 (Exhibit ARG-16).
41 Argentina Second Submission, para. 54.

evidence with respect to the dominant and only relevant producer, the obligation of Article 11.3 is not
satisfied when the authority simply asserts that it will make 'no finding.'"
42

45. Argentina makes this statement yet provides no textual support for this proposition. In fact,
Article 11.3 does not require that a likelihood finding be made as to individual producers, a point
underscored in the Panel Report itself. More over, as Commerce noted in the Section 129
determination, Siderca stated in its questionnaire response that it shipped no subject merchandise to
the United States. Therefore, Commerce can hard ly be faulted for not making a dumping finding
regarding a company that had no exports. Indeed, at the time of the sunset review, there was only one
exporter – Acindar. Argentina's assertion that Siderca was the "only relevant producer" is simply
wrong. The United States correctly relied upon a likelihood finding as to the sole exporter of OCTG
to the United States during the period of review.

46. Notwithstanding that Commerce made no finding regarding Siderca, Argentina continues to
quibble with Commerce's assessment of Siderca's cost information. As noted before, Siderca did not
provide Commerce with actual costs for the period. Instead, Siderca used its costs for October 2005
and extrapolated what the costs would be for 1995 -2000. It is curious that Argentina considers
information five to ten years after the period of re view to be probative, when Commerce preferred to
use contemporaneous data;
43 but at the same time, Argentina contends information from 2001 is not
relevant.44

47. It should be noted that Siderca's informa tion was not reliable for several reasons. For
example, the base for extrapolation, i.e., the October 2005 data, did not account for the fact that
Siderca had been significantly lowering its costs of production. 45 Moreover, as discussed further
below, when comparing cost data between ty pes of OCTG products, Co mmerce discovered that
Siderca "reported lower costs for certain products that do not require such additional materials,
processing, and testing." 46 Because of these problems in the cost data, coupled with the fact that
Siderca made no sales during the period, Commerce pr operly determined not to use Siderca's cost of
production data and did not make any findings re garding Siderca's likelihood of dumping during the
sunset review period.

48. As seen in Commerce's memorandum, for each year Commerce combined costs for carbon
casings and compared it with alloy casings for those same years and discovered that Siderca reported
lower costs for the products that required additional materials, processing, and testing.
47 Argentina
argues that Commerce's analysis of Siderca's cost data was not an "objective assessment" of the data
and Commerce should have used direct comparisons instead of aggregating and weight averaging it
into broader carbon and alloy categories. 48 Argentina makes these broad assertions, yet fails to
substantiate them.

42 Argentina Second Submission, para. 68.
43 Indeed, Commerce's use of contemporaneous data is consistent with the arbitrator's view that the
information pertain to the original review period.
44 Argentina Second Submission, paras. 55-60. Arge ntina criticizes the United States for referring to
the fact that Acindar was found to have a dumping margin of over 60 per cent in 2001. Argentina recognizes
that Commerce did not consider that information in the Section 129 determination. Argentina Second
Submission, para. 56.
45 Argentina First Submission, para. 130.
46 Section 129 Determination, at 8 (Exhibit ARG-16).
47 Memo. Re: Inconsistencies in Siderca's Data, at 1 (Exhibit ARG-21); Section 129 Determination,
at 8. Siderca had reported the data as carbon casings, plain end; carbon casings, th readed and coupled; alloy
casings, plain end; and alloy casings, threaded and coupled.

49. Argentina argues that it and the United States could not come to agreement as to releasing
Siderca's cost data to the Panel. 49 That is simply not correct. The United States explained that
Siderca and Acindar were free to release their own data, and Argentina did not disagree. 50 B y
contrast, Commerce's ability to release that same in formation is constrained by Article 6.5 of the
Antidumping Agreement, which requires permission of the party submitting the information before
such information can be released.

50. Argentina also asserts that Commerce "manipul ated the data by weight-averaging the costs of
finished and plain end pipes, skewing the comparis ons so that they demonstrated the differences
caused by the type of steel and the type of end finish."
51 Argentina's assertion is unfounded.
Commerce grouped those items in that manner becau se the available public information grouped the
products in that manner. 52 Siderca's cost data, if usable, would have been compared with this US
sales data to see if Siderca could have made sales in the United States above its costs.

51. Commerce also explained that "Siderca's cost calculations for non-OCTG products are
problematic because their costs si gnificantly exceed OCTG costs."
53 Argentina challenges
Commerce's statement that costs for line pipe, standard pipe, structural tubing, mechanical tubing, and
pressure pipe (i.e. non-OCTG) should not exceed the costs for OCTG because "the majority of tubular
demand is in the lower value products . . ."
54 This is the common understanding in the industry and
Argentina never argues it is not accurate – it only argues that there was no explicit evidence
supporting this claim. In fact, Siderca is a signifi cant producer of standard seamless pressure and line
pipe ( i.e. lower value pipe) and was a mandatory resp ondent in a seamless pipe investigation
involving these products at the same time it was investigated in the OCTG case. 55 Therefore, because
Siderca has such significant production of these produc ts, this should have meant its non-OCTG costs
were lower than its OCTG costs, yet the extrapolated costs did not reflect this.

52. Argentina also asserts that "Siderca reported the actual cost of the production lines used for
producing the products for which the USDOC requested information." 56 Significantly, Siderca does
not claim that it accurately captured all of the cost s for production. In fact, it concedes that "Siderca
cannot provide the information in the form requested by the Department, [and has] endeavoured to
reconstruct some data to the best of [its] ability." 57 Siderca never argued it was an accurate reflection
of actual costs – only that the extrapolated data reflect ed its guess as to what the costs might have
been. Also, Siderca compared its average per unit costs for a production line for October 2005 to
each of the intervening years in the period, 1995-20 00, without indicating that it adjusted for product
mix, which would have significantly affected these average costs. Nothing in Article 11.3 requires
Commerce to use such speculative data.

50 It should be noted that Argentina originally ra ised the question of confidential information during
discussions before the panel organizational meeting. At that time, Argentina advised the United States that it
wished to submit its own companies' confidential information and that procedures might be necessary in order to
ensure that third parties (not the United States) were adequately bound to protect the confidentiality of that
information. Argentina contacted th e United States again about the same issue and was advised again that
Siderca and Acindar were free to release their own data, and that Commerce did not have to authorize the
release of Siderca's and Acindar's data.
52 Memo Re: Information for the Record, at Att. III (Exhibit ARG-18).
53 Section 129 Determination, at 8 (Exhibit ARG-16).
54 Section 129 Determination, at 8 (Exhibit ARG-16).
55 Small Diameter Circular Seamless Carbon and Alloy Steel Standard, Line, and Pressure Pipe From
Argentina, 60 Fed. Reg. 31,953 (19 June 1995) (final determination of sales at less than fair value) (Exhibit
US-8).
56 Argentina First Submission, para. 94.
57 Siderca's Questionnaire Resp., Att. 2 (Exhibit ARG-15).

53. Argentina then argues that the United Stat es failed to address the information provided in
Siderca's financial statement.
58 This argument is erroneous. The United States relied upon these
financial statements as an indicator of the depressed OCTG market. 59 Specifically, Siderca's financial
statement explains that its "sales for fiscal year 2000 were 25 per cent lower than during the previous
fiscal year, reflecting the effects of the drastic fall in world demand for tubes for the oil industry."60
Oil country tubular goods (OCTG) are only used by the oil industry. If demand for tubular products is
down in the oil industry, then shipments of OCTG will drop. The reduction in OCTG demand was so
great that it caused at least a 25 per cent drop in Siderca's total sales. In fact, because Siderca
produces for other industries as well, the impact on its OCTG sales would likely have been greater
than 25 per cent for it to cause a 25 per cent reducti on in Siderca's total sales. Thus, Siderca's own
financial statements supported the conclusion that the OCTG market was depressed.

54. Argentina argues that Commerce should have used Siderca's quarterly April-June 2000
statement as evidence that the downturn in the OCTG market had subsided.
61 However, the data for
the previous few years reflected a downward tre nd and one quarter of positive results would not
necessarily indicate a turn in the market. Furthermore, Commerce had requested full-year data for the
five year period and comparing a three month interim statement would not be an accurate comparison.
In fact, Commerce was using Siderca's fiscal year 2000 statement – the latest completed fiscal year at
the time of the original sunset review. Finally, the quarterly statements are not audited and are thus,
not as reliable as audited full year statements. Th erefore, Commerce properly did not conclude that
one quarter's worth of sales outweighed several years of trend data.

55. Before reaching its conclusion not to ma ke a likelihood finding as to Siderca, Commerce
thoroughly analyzed all cost data placed on the re cord and determined it wa s not reliable. Because
Siderca had stopped exporting to the United States once the order was imposed, there was no sales
data to use in the analysis. Without reliable co st or sales data on the record, Commerce's neutral
decision as to Siderca is not inconsistent with Article 11.3.

C. EVIDENTIARY AND PROCEDURAL REQUIREMENTS OF ARTICLE 11.3 AND ARTICLE 6

56. A previous panel has explained that Article 6 of the AD Agreemen t imposes substantive
obligations without dictating any specific actions th rough which those obligations must be met. In
Guatemala – Cement II, the panel recognized in the context of a discussion on Article 6.1 that:

these provisions impose substantive obligati ons, without requiring those obligations
to be met through any particular form [e xcept as explicitly provided for]. What
counts is whether, in practice, sufficient opportunity was provided . . .62
Though that dispute specifically discussed Article 6.1 obligations, this same framework of analysis is
applicable to the remainder of the substantive oblig ations of Article 6. Argentina improperly asserts
Commerce was required to take specific actions, rather than addressing whether Commerce through
its actions met the substantive obligations at issue.

58 Argentina Second Submission, para. 66.
59 Section 129 Determination, at 9-10 (Exhibit ARG-16).
60 Section 129 Determination, at 9 (emphasis added) (Exhibit ARG-16).
61 Argentina Second Submission, para. 66.

1. Article 6.1

57. Argentina argues that the United States did not act consistently with Article 6.1 of the
AD Agreement because it did not "respond" to a letter that Siderca submitted only a week before the
final determination was issued. 63 First, there is no obligation under Article 6.1 for a Member to
respond to a letter. Article 6.1 requires Members to provide parties with the opportunity to provide
evidence and argument. Second, Argentina's asserti on is simply false. Commerce responded to the
comments made in that letter in its Section 129 Determination. 64 Finally, Argentina was aware that
the reasonable period of time expired on 17 December 2005. Therefore, the statement that the parties
only discovered on 16 December that there would be no additional procedures simply rings hollow,
inasmuch as the parties were aware that the reasonable period of time was imminently expiring.65

58. Argentina returns to its claim that the Sec tion 129 Determination was not consistent with
Article 6.1 because Commerce did not issue suppl emental questionnaires, publish a preliminary
determination, hold a hearing, or issue a schedule for comments.
66 Yet, as the United States explained
in its first submission, none of these are required by Article 6.1. The United States met the
substantive obligations of Article 6.1, giving the Argentine respondents several opportunities to
submit evidence and legal argument. Argentina c ontends that the absence of these procedures strips
Article 6.1 of any substantive meaning. That is incorrect. Argentina fails to recognize that there
comes a point in every proceeding where an investigating authority must make its decision and cannot
offer unlimited opportunities for pa rties to submit comments and re buttals. In this proceeding,
Commerce received argumentation from the respondent s until two days before the determination was
made, and three days before the reasonable period of time expired. There are no specific actions
required to satisfy the Article 6.1 requirements. Rather, Members have a variety of options for
meeting the substantive obligations of Article 6.1. Thus, Commerce provided the substantive rights
that are required by Article 6.1.

2. Article 6.2

59. Rather than addressing the text of Article 6. 2 of the AD Agreement, which plainly requires a
hearing only on request, Argentina contends that the United States should have provided "more
information regarding the timing of the hearing."67 Any of the interested parties could have submitted
requests for a hearing and chose not to do so. Co mmerce did not breach Article 6.2 by failing to hold
a hearing that was never requested, nor does Article 6.2 require the provision of "more information"
regarding the timing of a hearing that was never requested.

60. Ignoring the text of Article 6.2, Argentin a argues that the United States suggested in its
arbitration submission that it would hold a hearing.
68 Argentina seems to be suggesting that its claim
is not that the United States breached Article 6.2, but that it breached the US arbitration submission.
Of course nothing in the DSU provides for such an argument. Moreover, the United States did not
state that it would hold a hearing but rather included a hearing in its projected timeline, in case a party
requested a hearing.

61. Argentina also argues that the United States breached Article 6.2 because Commerce
"remain[ed] silent after Siderca asked for essential clarification with respect to the erroneous

63 Argentina Second Submission, para. 105.
64 Section 129 Determination, at 3, 4-6 (Exhibit ARG-16).
65 Siderca's counsel in the underlying proceeding acts as Argentina's counsel in this dispute.
66 Argentina Second Submission, para. 106.
67 Argentina Second Submission, para. 109.
68 Argentina Second Submission, para. 109.

allegations of the Petitioners and w ith respect to the procedures . . ."
69 Argentina neither cites to the
submission it is referencing, nor provides an expl anation as to how this prevented the Argentine
respondents from defending their interests. Commer ce allowed all parties to submit comments and
rebuttal comments and then responded to all of the in terested parties' comments in its Section 129
Determination. Therefore, the United States met its obligations with respect to Article 6.2.

3. Procedural Requirements in Articles 6.4, 6.5.1, 6.6, and 6.9

(a) Article 6.4

62. Argentina continues to pursue its claim under Ar ticle 6.4 of the AD Agreement. In doing so,
Argentina misrepresents the US argument about the relevance of the arbitration proceeding. The
United States did not argue that there is a "hierarchy" between the arbitration report and Article 6.4.
Rather, the United States noted that the obligations under Article 6.4 are, as specified in the text,
applicable only whenever release of such informatio n is practicable. The reas onable period of time is
directly relevant to whether release of the information in question is practicable. A brief review of the
proceeding will illustrate that Commerce did, whenever practicable, release all information subject to
Article 6.4.

63. As the Panel may recall, Commerce was obliged to amend the waiver regulations because the
"deemed waiver" exercised in the original sunset review had "tainted" the final determination.
Commerce could not begin its Section 129 Determina tion until those regulations became effective.
The regulations became effective 31 October 2005, and Commerce sent out questionnaires that same
day. The timeline was as follows:
• 22 November 2005: Commerce places CBP a nd Preston Price data on the record
• 30 November 2005: Respondent inter ested parties provide questionnaire
responses US Steel provides response
• 8 December 2005: Domestic interested parties provide rebuttal submissions
• 14 December 2005: Respondent interested parties provide rebuttal submissions
• 16 December 2005: Commerce issues Section 129 determination
64. It is evident from the timeline that this pr oceeding had considerably greater time constraints
than an original sunset review. Nevertheless, Co mmerce disclosed all information, and did so as soon
as practicable. In particular, the United States notes that the memoranda placed in the file on
16 December 2005, were so placed only two days af ter respondents filed their rebuttal submissions.
Argentina has not proven that it was practicable for Commerce to place those memoranda on the
record any earlier.

65. Moreover, Argentina can only discharge its burden of proof by identifying each memorandum
at issue and explaining why each memorandum met th e criteria of Article 6.4, including what the
information in question is, why it is relevant to th e presentation of the respondent interested party's
case, that it is not confidential, and that it was used by the authorities in the proceeding. Argentina
appears to place the burden on the Panel – or the Un ited States – to examine the memoranda in this
fashion. Argentina simply states that some of the memoranda are public and, therefore, meet the
criteria of Article 6.4. It is evident that Argen tina wishes the Panel to consider these documents in
lump form, and a closer examination of the docume nts reveals why: the information in question was
either provided to the parties as early as 22 Novemb er 2005, was confidential, was not relevant to the

69 Argentina Second Submission, para. 111.

presentation of the respondent interested party's case, or was not used by the authorities in the
proceeding.

Non-Confidential Versions of Confidential Memoranda

66. At the outset, it should be noted that Article 6.4 only applies to non-confidential information.
Therefore, the memoranda containing confidenti al information are not subject to Argentina's
Article 6.4 claim. As a result, Article 6.4 is not applicable to the confidential information in Exhibit
ARG-18 (the price and CBP data), Exhibit ARG- 21 (containing confidential Siderca information),
and Exhibit ARG-23 (containing confidential Acinda r information). Argentina argues that the non-
confidential versions of these memoranda are subject to Article 6.4. There are several problems with
this argument.

67. First, Argentina has failed to explain wh y Commerce's placement of the CBP and Preston
Price data in the file on 22 November 2005, was inconsistent with Article 6.4.

68. Second, the United States recalls that the st ated purpose of Article 6.4 is to enable those
parties to "see all information that is relevant to the presentation of their cases . . . and to prepare
presentations" on the basis of that information – the stated purpose of Article 6.4.
70 Argentina has
failed to explain how placing the non-confidential versions of memoranda on the record would permit
respondent interested parties to prepare presentations when respondents had access to the confidential
versions.

Public Documents

69. The three remaining memoranda were, in fact , public documents, rather than non-confidential
versions of confidential documents. However, even with respect to these documents, Argentina's
claim fails.

• Exhibit ARG-22 (16 December 2005, USDOC Memorandum to file from Mark
Flessner regarding "Information from Prest on Price Publishing.") This memorandum
contains pages providing descriptive information about Preston Price Publishing – the
source of data placed on the record on 22 Nove mber 2005. (That information is also
available on the web.) Article 6.4 only concer ns information that is relevant to the
presentation of a party's case. While the data are relevant, and were placed on the
record on 22 November 2005, the descr iptive information about the company
providing the data is not. Therefore, pl acing this memorandum in the file on
16 December 2005, is not inconsistent with Article 6.4.

• Exhibit ARG-24 (16 December 2005, USDOC Memorandum to file from Mark
Flessner regarding "Securities and Exchange Commission Filings of Domestic OCTG
Producers.") These are simply the financial statements of domestic OCTG producers.
These statements were cited in the determination
71 to support assertions made by the
respondents, including Siderca's assertion that the OCTG market was depressed, 72 as
well as its assertion that the United States is the world's largest market for OCTG. 73

70 Argentina is not arguing that the non-confidentia l versions were created or filed later than the
confidential versions. Both the confidential and non- confidential memoranda have the same date and were
placed in the file on the same date. As a result, Ar gentina is essentially advancing a claim regarding the
confidential memoranda, when Article 6.4 expressly limits itself to non-confidential information.
71 See Section 129 Determination, pp. 7, 11;
72 Siderca's 7 December 2005 submission, p. 7 (Exhibit ARG-19).
73 US – OCTG (Argentina) (Panel), paras. 7.291 and 7.297.

Argentina has failed to explain why these docum ents were "relevant" to respondents'
ability to "present their cases," inas much as the documents actually confirmed
assertions respondents themselves made.

• Exhibit ARG-25 (16 December 2005 USDOC Memorandum to file from Fred Baker
regarding "Information for the Record."). This information cons ists of respondent
and domestic interested parties' submissions in the original sunset review. Argentina
has had access to the public file containi ng the same information since the original
sunset review.

(b) Article 6.5.1

70. Argentina continues to assert that Commerce failed to require non-confidential summaries of
confidential information. This is not correct. Commerce required interested parties to provide non-
confidential versions of their confidential documen ts; as the United States explained in its first
submission, the non-confidential versions themsel ves contained summaries of the confidential
information that was bracketed.
74

71. Rather than addressing this point, Argen tina engages in an imprecise discussion of the
timeliness of the receipt of unspecified confidential documents issued concurrently with the Section
129 determination. The United States recalls that Ar gentina's claim in connection with Article 6.5.1
of the AD Agreement was with respect to US Steel's submission
75 – the public version of which was
filed on 2 December 2005, not concurrently with the Section 129 determination. Therefore,
Argentina's discussion is irrelevant to its Article 6.5.1 claim.

72. Finally, Argentina contends that it is not clear that Acindar was represented by its own
counsel.
76 Attached is a copy of the service list indica ting that Acindar, in fact, was represented by
counsel.77 78

(c) Article 6.6

73. Article 6.6 of the AD Agreement requires administering authorities to satisfy themselves as to
the accuracy of the information upon which they rely in making their findings. As the United States
pointed out in its first submission, the cost data submitted by Siderca were per se not accurate because
they were self-described estimates, using 2005 data to estimate costs for the period 1995 to 2000, five
to ten years earlier. Argentina fails to address this argument. Moreover, Commerce explained
carefully why the data were not reliable. Co mmerce explained how Siderca's estimated production
cost data was inconsistent with other cost data for steel products in the Section 129 Determination.
79

74. Further, the United States noted that the co st information was not information "upon which
. . . findings are based," and Article 6.6 is therefor e not applicable. Argentina has failed to explain

74 US First Submission, para. 71.
75 Argentina First Submission, para. 169.
76 Argentina Second Submission, para. 124.
77 US Department of Commerce Public Service List , Section 129 Determination, Oil Country Tubular
Goods from Argentina (Exhibit US-9).
78 Argentina also asserts that "it is unreasonable, unfair, and a violation of Article 6.5 for the USDOC
to ignore a specific request by an interested party to be advised of the allegations made against it." Argentina
Second Submission, para. 124. Article 6.5 requires invest igating authorities to treat confidential information as
confidential and prohibits disclosure of such information without the permission of the party submitting it. It
does not require USDOC to inform an interested party of the allegations made against it.
79 Section 129 Determination, at 8-9 (Exhibit ARG-16). See also , Memo Re: Inconsistencies in
Siderca's Cost Data (Exhibit ARG-21).

why the lack of a decision constitutes a finding. Argentina states that the US view that it has not acted
inconsistently with Article 6.6 is premised on the assumption that the data were flawed. That is
incorrect; the US view is premised on the plain language of Article 6.6, which is limited to
information upon which findings are based.

(d) Article 6.9

75. Article 6.9 requires authorities, before a final determination is made, to inform all interested
parties of the essential facts under consideration that form the basis for the decision to apply definitive
measures. As the United States noted, Argentina, as the complaining party, bears the burden of
proving its claim, including proving that the information in question consists of "essential facts."

76. First, it should be noted that Argentina's re buttal is limited to the two memoranda in which
Commerce describes the inconsistencies in the Argentine companies' data.
80 Therefore, the United
States understands Argentina's claim to be limited to those memoranda.

77. Second, Argentina still fails to explain why those memoranda contain "essential facts", or how
those essential facts formed the basis for the decision to apply defin itive measures. Argentina simply
offers the statement that the "memoranda were clear ly part of the 'essential facts under consideration,'
and were treated as such by the Section 129 Determination." 81 Therefore, Argentina still has not met
its burden of proof with regard to these memoranda.

78. Moreover, Argentina cannot meet its burden of proof. The essential facts that formed the
basis of the decision to continue the order were provi ded weeks in advance of the final determination.
On 22 November 2005, Commerce pla ced the CBP data (Acindar's sales) and the Preston Publishing
data (US average unit values) on the record. 82 Those data formed part of the basis for the decision to
continue the order and were the "essential facts." Commerce's identification of inconsistencies in the
Argentine respondents' data are not "facts;" rather , they constitute reasoning by the investigating
authority. Further, they are not the basis for the continuation of the order because the data were not
used in making the final decision.

79. In this regard, the United Stat es recalls the panel's analysis in Argentina – Poultry , where
Argentina successfully defended an Article 6.9 claim under analogous circumstances. Argentina's
investigating authority had disregarded certain no rmal value and export price data reported by
Brazilian exporters. Brazil alleged that Argentina fa iled to disclose its rejection of data, in violation
of Article 6.9.

80. The panel rejected Brazil's claim for two reas ons. First, the panel rightly concluded that the
reasons why data are rejected are not facts.
83

In our view . . . the failure to inform an interested party of a reason does not equate to
failure to inform an interested party of an essential fact.84

80 Argentina Second Submission, para. 143 ("In the present case, the Argentina respondents could not
defend their interests by addressing what the USDOC perceived to be 'inconsistencies in data.'")
81 Argentina Second Submission, para. 142.
82 Memo Re: Information for the Record (Exhibit ARG-18).
83 Argentina – Poultry, para. 7.225.
84 Argentina – Poultry, para. 7.225.

Commerce's identification of inconsistencies in the Argentine respondents' data was a reason why the
data were rejected and was not, itself, a fact. Therefore, the United States did not breach Article 6.9
with respect to those memoranda.

81. The Argentina – Poultry panel also explained that Argentina's rejection of certain data did not
form the basis for the decision whether to apply definitive measures, and therefore, for a second
reason, did not fall within the ambit of Article 6.9.
85 More specifically, the panel noted:

In our view, however, the fact that certai n normal value or export price data is not
going to be relied on in making a final dete rmination is not a fact which forms the
basis for the decision whether to apply definitive measures . While we accept that the
normal value and export pri ce data ultimately used in the final determination are
essential facts which form the basis for th e decision whether to apply definitive
measures, the fact that certain normal value and export price data is not going to be
used is not.86
82. Thus, data not used cannot form the basis for the decision whether to apply definitive
measures.

83. Rather than referring to Argentina – Poultry , which addresses a situation squarely analogous
to the one in this dispute, Argentina relies on Argentina – Tiles for the proposition that the United
States has acted inconsistently with Article 6.9.
87 Argentina – Tiles involved a different scenario from
the one here. In that disput e, Argentina defended the Article 6.9 claim by asserting that the
respondent interested parties had the opportunity to view the public file, which contained all of the
essential facts. Those facts were simply questionna ire responses and other information provided by
the interested parties.88 By contrast, Commerce did not merely in vite the interested parties to review
the public file. Instead, Commerce – not the domestic interested parties – placed the Preston price and
CBP data on the record and provided the Argen tine respondents with both public and confidential
versions of that information. Commerce did so on 22 November 2005, three weeks before the Section
129 determination was issued. Therefore, the Arge ntine respondents had the opportunity to address
whether Commerce should have used the information. Argentina – Tiles, therefore, is inapposite to
Argentina's Article 6.9 claim in this dispute.

84. Indeed, the panel in Argentina – Poultry expressly addressed Argentina – Tiles , stating that
"our conclusion is entirely compatible with the finding of the Argentina – Ceramic Tiles panel. In our
view, that panel concluded that factual information
 – rather than reasoning – represents the 'essential
facts' . . . ."89 As noted above, Commerce disclosed the essential facts on 22 November 2005.

85. Finally, the gravamen of Argentina's claim a ppears to be the lack of opportunity to explain
why the responses should not be rejected and to suggest alternative sources for facts available, rather
than a failure to disclose essential facts formi ng the basis for the continuation of the order. 90 As the
Argentina – Poultry panel noted, "we agree . . . that an investigating authority must inform interested
parties why certain information is disregarded. Howe ver . . . that obligation is found in Article 6.8 . .
and not in Article 6.9."91 The United States addresses that claim next.

85 Argentina – Poultry, para. 7.223.
86 Argentina – Poultry, para. 7.224.
87 Argentina Second Submission, para. 142.
88 Argentina – Tiles, para. 4.966.
89 Argentina – Poultry, para. 7.228.
90 Argentina Second Submission, para. 144.
91 Argentina – Poultry, para. 7.227.

4. Article 6.8 and Annex II

86. Argentina persists in its assertion that Co mmerce applied "facts available" to Siderca and
Acindar in violation of Article 6.8 and Annex II of the Agreement.

87. With regard to Siderca, Argentina asks the Panel to "reject the US assertion that the USDOC
did not resort to facts available with respect to Siderca because 'the result of Commerce's analysis
of Siderca's estimated cost information was no company-specific finding regarding Siderca.'" 92
Argentina goes on to state that the "US assertion is premised on the erroneous assumption
that these obligations apply only to information th at supports the conclusions of the investigating
authority . . . ."
93 Argentina is mistaken. The US assertion is much simpler than that.

88. Article 6.8 states the circumstances under whic h a Member may make a determination "on the
basis of facts available." The United States did not use other facts in lieu of the data provided by
Siderca; the United States simply made no finding with respect to Siderca. Thus, Commerce did not
use the "facts available" but rather declined to make any finding with respect to Siderca and used no
facts in that respect. The United States was not required to make a company-specific finding in the
course of making its determination. In other word s, the question is quite simple: With respect to
Siderca, which "facts available" did Commerce use?

89. Argentina appears to be referring to "facts av ailable" not as the term is actually used in
Article 6.8, but rather interchangeably with the decision by an investiga ting authority to reject
information that has been provided. The plain language of Article 6.8 indicates that its applicability is
triggered not by the rejection of the information, but by the use of facts available. Article 6.8 sets out
conditions precedent to the use of facts available – "cases in which any interested party refuses access
to, or otherwise does not provide, necessary inform ation within a reasonable period of time or
significantly impedes the investigation . . . ." If f acts available have not been used, then there is no
need to examine the conditions precedent to the use of facts available. That is the situation here: facts
available were not used with respect to Siderca, a nd as a result, the obligations further to Article 6.8
have not been triggered.

90. Argentina does not appear to deny that Si derca and Acindar did not provide the requested
information. Rather, Argentina provides excuses as to why that information was not provided. Thus,
"USDOC asked both Acindar and Siderca for informa tion they did not have." "Siderca . . . did not
retain product-specific costs from the period requested ." "Acindar . . . no longer produces OCTG, . . .
it did not have the product-specific cost information in the form requested by the Department, and . . .
it was not required to have retained such information under Argentine law."
94

91. Argentina seems to believe that Article 6. 8 requires authorities to establish that respondents
are "recalcitrant." However, Article 6.8 provides th at an authority may use facts available not only
when an interested party "refuses access to" information, but also when an interested party "otherwise
does not provide" necessary information. 95 Argentina's interpretation would read the latter phrase out
of Article 6.8. Argentina appears to assume that Ar ticle 6.8 is punitive. Article 6.8 is not punitive: it
simply establishes that where inte rested parties do not provide necess ary information, investigating
authorities may use other information.

92 Argentina Second Submission, para. 137.
93 Argentina Second Submission, para. 137.
94 Argentina Second Submission, para. 138.
95 For purposes of this discussion, the United States is assuming arguendo that the information in
question is "necessary information" for purposes of Article 6.8.

92. Argentina argues that the United States has fa iled to address its specific allegations regarding
Annex II. Argentina ignores the fact that the Unite d States pointed out that no facts available were
used with respect to Siderca. Annex II is only applicable when Article 6.8 is applicable. The majority
of Argentina's arguments regarding Annex II concern Siderca and are simply inapplicable.
96

93. With respect to Acindar, Argentina asserts that there is:

no indication whatsoever that the USDOC acte d with 'special circumspection' within
the meaning of paragraph 7. There is nothing in the Section 129 Determination
demonstrating that the USDOC 'check[ed] the information from other independent
sources at [its] disposal.' DOC never even asked Acindar to explain the general
reference in its 2000 financial statement.97
As the United States noted, Acindar did not provide any cost information. Commerce therefore used
alternate information from secondary sources. Ar gentina cannot credibly assert that Commerce failed
to exercise "special circumspection" when Acinda r gave Commerce no choice but to use information
from independent sources.

94. It is more puzzling that Argentina asserts that Commerce failed to check information from
other independent sources at its disposal. Paragra ph 7 of Annex II provides examples of independent
sources, and they are the same sources that Co mmerce used: "published price lists" and "official
import statistics."

95. Finally, Argentina seems to read paragraph 6 of Annex II as requiring a Member to inform all
respondents when information provided by only one of them is not accepted.
98 However, paragraph 6
provides that if "evidence or information is not accepted, the supplying party should be informed
forthwith . . . ." Therefore, there was no obligatio n to inform Acindar that Siderca's information was
being rejected. As the United States noted in its first submission, Commerce made no finding
regarding Siderca and did not use facts available re garding Siderca; therefore, the obligations under
Annex II are simply not applicable with respect to Siderca.

IV. ARGENTINA'S REQUEST FOR A SUGGESTION

96. Argentina persists in asserting that it has a "right" to termination.
99 Argentina also persists in
its assertion that the Panel should make a "s uggestion" that the order be terminated. 100 Argentina has
failed to explain just how a "suggestion" from the Panel would fulfil Argentin a's alleged "right" to
termination, or how it would prevent a "never-ending cycle" of litigation.101

97. Argentina believes its right to termination flow s from the temporal limitations of Article 11.3.
If that were true, then it is unclear why a suggestion would be necessary, inasmuch as there would
purportedly be an inconsistency per se with Article 11.3. That is precisely the interpretation the
Appellate Body rejected in US – OCTG (Mexico). Mexico argued that the panel, and the Appellate
Body, should make a finding that the United States ha d "no legal basis to continue its . . . measure
beyond . . . five years . . . ."
102 The Appellate Body refused to make such a finding, or to overturn the
panel's refusal to make such a finding.

96 Argentina First Submission, para. 184.
97 Argentina First Submission, para. 184.
98 Argentina First Submission, para. 184.
99 Argentina Second Submission, para. 174.
100 Argentina Second Submission, para. 176.
101 Argentina Second Submission, para. 183.

98. Argentina distorts the Appellate Body's anal ysis, concluding that the Appellate Body simply
meant that the order did not have to be terminated "immediately," as if to imply that the order in fact
had to be terminated, but at some later date. 103 That is simply not correct. The Appellate Body
rejected Mexico's interpretati on not only because the DSU provides Members a reasonable period of
time to implement, but because it also accords to Members "the means of implementation." 104 The
means of implementation in this dispute include the decision to terminate – or to correct the flaws in
the determination, which is what the United States did. 105

V. CONCLUSION

For the foregoing reasons, the United States respectfu lly requests that the Panel reject Argentina's
claims.

103 Argentina Second Submission, para. 180 (emphasis in original).
105 Argentina references a number of disputes in which suggestions have been made. Not one of those
concerns an Article 21.5 proceeding.