UNITED STATES – ANTI-DUMPING MEASURES ON OIL COUNTRY TUBULAR GOODS (OCTG) FROM MEXICO
Document: Report of the Panel
Date: 20 June 2005
Document codes: WT/DS282/R
Complainant: Mexico
Respondent: U.S.
Third parties: Argentina, Canada, China, Taiwan, EU, Japan, Venezuela, Thailand
Dispute stage: Appellate Body
Agreements cited: Art. 1, 2, 3, 6, 11, 18  Anti-dumpingArt. VI, X  GATT 1994Art. XVI:4  Agreement Establishing the World Trade Organization

UNITED STATES – ANTI-DUMPING MEASURES ON OIL
COUNTRY TUBULAR GOODS (OCTG) FROM MEXICO

Report of the Panel

I. INTRODUCTION
1.1 On 18 February 2003, the Government of Mexico requested consultations 1 with the
Government of the United States of America (U nited States) pursuant to Article 4 of the
Understanding on Rules and Proce dures Governing the Settlement of Disputes (DSU), Article XXII:1
of the General Agreement on Tariffs and Tr ade 1994 (GATT 1994), and Article 17.3 of the
Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the
AD Agreement) regarding the final determinations of the United States Department of Commerce
(USDOC) and the United States International Trade Commission (USITC) in the sunset and fourth
administrative reviews of oil country tubular goods (OCTG) from Mexico, as well as certain
United States laws, regulations, procedures, administrative provisions and practice. Mexico and the
United States held consultations on 4 April 2003, but they failed to settle the dispute.
1.2 On 29 July 2003, Mexico requested the Disput e Settlement Body (DSB) to establish a panel
pursuant to Article XXIII of the GATT 1994, Ar ticle 6 of the DSU and Article 17 of the
AD Agreement.
2
1.3 At its meeting on 29 August 2003, the DSB established a Panel pursuant to the request by
Mexico in document , in accordance with Article 6 of the DSU. At that meeting, the
parties to the dispute also agreed that the Panel shoul d have standard terms of reference. The terms of
reference are, therefore, the following:
To examine, in the light of the relevant pr ovisions of the covered agreements cited by
Mexico in document , the matter referred to the DSB by Mexico in that
document, and to make such finding s as will assist the DSB in making the
recommendations or in giving the rulings provided for in those agreements.
1.4 On 11 February 2004, the parties agreed to the following composition of the Panel:
Chairman: Mr. Christer Manhusen
Members: Mr. Alistair James Stewart
1.5 Argentina, Canada, China, the European Comm unities, Japan, Chinese Taipei and Venezuela
reserved their third-party rights.
1.6 The Panel met with the parties on 25-26 May 20 04 and on 17-18 August 2004. It met with
the third parties on 26 May 2004. The Panel provi ded its interim report to the parties on 24 March
2005
II. FACTUAL ASPECTS
2.1 At issue in this dispute are a number of determinations by the USDOC and the USITC in
connection with reviews of anti-dumping duties on imports of OCTG from Mexico, as well as certain
laws, regulations, procedures, administrative pr ovisions and practice governing those reviews.
Specifically, Mexico challenges the determinations of both the USDOC and USITC in the sunset
review of the anti-dumping duty order, and the dete rmination of USDOC in the fourth administrative
review. In the sunset review, USDOC determined that the expiry of the anti-dumping duty would be

1 WT/DS282/1-G/L/605-G/ADP/D47/1.
2 WT/DS268/2 (Annex F).

likely to lead to continuation or recurrence of dumping,
3 and USITC determined that the expiry of the
anti-dumping duty would be likely to lead to continuation or recurrence of injury. 4 As a consequence,
the anti-dumping duty order on imports of OCTG fro m Mexico was continued. In the fourth
administrative review, USDOC determined that neith er of the two exporters of OCTG from Mexico
requesting the review qualified for revocation of the anti-dumping duty, and therefore declined to
terminate the measure.5
2.2 The anti-dumping investigation on OCTG from Me xico was initiated in 1994, and thus, in
accordance with Article 18.3 of the AD Agreement was not subject to the obligations set out in that
Agreement. Therefore, the original investiga tion was carried out under pre-WTO US laws and
regulations.
2.3 In the original investigation, USDOC calcula ted a dumping margin for the largest of the
Mexican OCTG producers, TAMSA, which accounted for about 60 per cent of the exports to the
United States during the period of investigation, 1 January 1994 through 30 June 1994. Three other
potential respondent companies were not individually investigated. Following investigation, USDOC
calculated a margin for TAMSA, based in part on facts available, of 23.79 per cent, 6 which was also
applied to exports from "all other" Mexican producer s, including Hylsa. Th e margin calculation for
TAMSA was based, inter alia , on a constructed normal value. In constructing the normal value,
USDOC chose not to rely on 1993 financial data provided by TAMSA, and instead used as facts
available 1994 financial data TA MSA had filed with the Mexican Securities and Exchange
Commission, concluding that it was more appropriate in light of the period of investigation. The
USITC carried out an investigation of injury, and concluded that OCTG from Mexico, and four other
countries (Argentina, Italy, Japan, and Korea), wa s causing material injury to the US domestic
industry. Subsequently, on 11 August 1995, US DOC issued the anti-dumping duty order on OCTG
from Mexico.
2.4 USDOC initiated administrative reviews in each year following imposition of the original
anti-dumping duty order. During the period rele vant to the first review, 11 August 1995 to
31 July 1996, there were no exports by the comp anies reviewed, including TAMSA and Hylsa, and
USDOC terminated the review. For the second period, 1 August 1996 to 31 July 1997, USDOC
calculated zero margins for both TAMSA and Hylsa, which became the effective deposit rate in
March 1999. For the third period, 1 August 1997 to 31 July 1998, both TAMSA and Hylsa again
requested review, and USDOC calculated a zero marg in for TAMSA. However, Hylsa withdrew its
request and USDOC terminated the review with resp ect to Hylsa, resulting in the collection of duties
in the amount of the original deposit rate. Both companies again requested review for the fourth
period, 1 August 1998 to 31 July 1999. For that review, USDOC again calculated a zero margin for
TAMSA, and calculated a margin of 0.79 per cent for Hylsa.
2.5 Concurrent with the fourth administrative review both TAMSA and Hylsa requested
revocation of the anti-dumping duty under relevant US legislation and regulati ons which provide that
USDOC may revoke an anti-dumping duty if it finds, inter alia, that there was no dumping for three
years, and that continued application of the an ti-dumping duty order is not otherwise necessary to
offset dumping. In response to the requests by TAMSA and Hylsa, USDOC determined that TAMSA

3 Oil Country Tubular Goods from Mexico; Final Resu lts of Sunset Review of Antidumping Duty
Order, 66 Fed. Reg. 14,131 (9 March 2001) (Exhibit MEX-19) (hereinafter "USDOC Sunset Determination").
4 Oil Country Tubular Goods from Argentina, Italy, Japan, Korea, and Mexico, USITC Pub. 3434, Inv.
Nos. 701-TA-364, 731-TA-711, and 713-716 (June 2001) (Exhibit MEX-20) (hereinafter "USITC Sunset
Determination").
5 Oil Country Tubular Goods from Mexico: Final Resu lts of Antidumping Duty Administrative Review
and Determination Not to Revoke in Part , 66 Fed. Reg. 15,832 (21 March 2001) (Exhibit MEX-9) (hereinafter
"USDOC Fourth Administrative Review Determination").
6 This margin was later amended to 21.70 per cent.

did not sell the subject OCTG in commercial quantities during the preceding three years, and there
was a dumping margin of 0.79 per cent calculated for Hylsa. Therefore, USDOC concluded that
neither company qualified for revocation, and denied the requests on 21 March 2001.
7
2.6 On 3 July 2000, while the fourth administ rative review was underway, USDOC initiated a
sunset review of the anti-dumping duty order on OCTG from Mexico. On 9 March 2001, USDOC
made a final determination, fo llowing a "full" sunset review 8, that there was a likelihood of
continuation or recurrence of dumping. USDOC re ported to the USITC that the magnitude of the
dumping margin likely to prevail was 21.70 per cent, the rate calculated in the original investigation
as amended, for all Mexican producers.
2.7 The USITC meanwhile had undertaken the investig ation of the injury side of the sunset
review. In its original determination, the US ITC had found that there were two US industries
producing two separate products "like" the im ports, and had made separate affirmative
determinations. On 10 July 2001, the USITC made a final determination that the revocation of the
anti-dumping duty orders on one of the relevant products, casing and tubing, from Mexico, and the
four other countries subject to the original order (Argentina, Italy, Japan, and Korea) was likely to
lead to continuation or recurrence of material in jury within a reasonably foreseeable time. With
respect to the other product, the ITC determined that revocation of the orders on drill pipe from
Mexico and Argentina was not likely to lead to con tinuation or recurrence of material injury within a
reasonably foreseeable time. Consequently, the an ti-dumping duty orders with respect to drill pipe
from Mexico and Argentina were revoked. This aspect of the USITC's determination is not at issue in
this dispute.
2.8 As a result of the determinations by USDOC and USITC, the anti-dumping duty order on
OCTG from Mexico was continued effective 25 July 2001.
III. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS
A. MEXICO
3.1 Mexico requests the Panel to find that:
• the statute (19 U.S.C. § 1675a(c)(1)), the Statement of Administrative Action (SAA)
(pages 889-890) and the Sunset Policy Bulle tin (SPB) (section II.A.3) as such violate
Article 11.3 of the AD Agreement because they establish a presumption that termination of
the anti-dumping duty would be likely to lead to continuation or recurrence of dumping,
which presumption is based on a reduction in import volumes or the mere existence of
dumping margins being given decisive weight , while the burden is placed on respondents
even to have USDOC consider any other factors;
• the statute (19 U.S.C. § 1675a(c)(1)), the SAA (pages 889-890) and the SPB (section II.A.3)
as such violate Article 11.3 of the AD Agreemen t because by requiring the USDOC to attach
decisive weight to the mere existence of dum ping margins and/or a decline in import volume,
these instruments establish a standard that is less than the "likely" or "probable" required by
Article 11.3;

7 USDOC Fourth Administrative Review Determination, supra note 5.
8 US law provides that "full" sunset reviews are conducted where the response to the notice of initiation
is adequate. USDOC normally will consider the response to the notice of initiation to be adequate if it receives
complete responses from a domestic interested party and respondent interested parties accounting on average for
more than 50 per cent of the total exports of subject merchandise.

• USDOC's consistent sunset review practice in applying the statute (19 U.S.C. § 1675a(c)(1)),
the SAA (pages 889-890) and the SPB (section II.A.3) not only further demonstrates the
WTO-inconsistent presumption that these instru ments embody, but also itself violates as such
Article 11.3 of the AD Agreement; and
• USDOC violated Article 11.3 of the AD Agreement because USDOC: (i) focused
exclusively on past import volumes to the exclusi on of other relevant factors; (ii) failed to
apply the "likely" standard required by Article 11.3; (iii) failed to conduct a prospective
analysis; and (iv) failed to make a determin ation of likelihood of dumping on the basis of
positive evidence;
• USITC's standard for determining whether term ination of the anti-dumping duty would be
likely to lead to continuation or recurrence of injury as such violates Article 11.3 of the
AD Agreement because the standard is something less than "likely" or "probable" as required
by Article 11.3;
• USITC violated Article 11.3 of the AD Agre ement because USITC applied a standard that
was less than the "likely" or "probable" standard required by Article 11.3;
• USITC violated Article 11.3 of the AD Agreement because USITC failed to base its
likelihood of injury determination on positive evidence;
• USITC violated Articles 3.1, 3.2, 3.4, and 3.5 of the AD Agreement, and violated 11.3 of the
Antidumping Agreement (independently of the appl ication of Article 3) by failing to conduct
an objective examination of the record and failing to base its likelihood of injury
determination on positive evidence. The USITC' s conclusions regarding the likely volume of
imports, the likely price effects, and the likely impact of imports on the domestic industry:
o cannot be considered objective when viewed in light of an impartial examination of
the information on the record;
o are not based on positive evidence of likely injury as required by Article 3.1 and by
Article 11.3 of the AD Agreement; and
o could not lead an objective and unbiased decision maker to the conclusion that
termination of the duty would be likely to lead to continuation or recurrence of injury;
• USITC violated Article 3.4 of the AD Agreem ent because USITC failed to evaluate all the
relevant economic factors and indices having a bearing on the state of the industry, including
those enumerated in Article 3.4 of AD Agreement;
• USITC violated Article 3.4 and Article 11.3 (inde pendently of the application of Article 3)
by: (i) relying on the margin likely to pr evail reported by USDOC to USITC for purposes of
the USITC's likelihood determination; or (ii) alternatively, failing to consider the magnitude
of the margin of dumping in determining that injury would be likely to continue or recur;
• USITC violated Article 3.5 of the AD Agreement because USITC failed to: (i) demonstrate a
causal relationship between the dumped imports and likely injury to the domestic industry;
(ii) separate and distinguish the effects of ot her factors causing the likely injury from the
effects of the dumping; and (iii) base its dete rmination on the effects of the dumping on the
domestic industry;
• independent of the applicability of Article 3. 5, USITC violated the causation requirements
inherent in Article VI of the GATT and Artic le 11.1 of the AD Agreement and thereby also

applicable to Article 11.3 injury determinations, when it determ ined that termination of the
duty would be likely to lead to continuation or recurrence of injury;
• USITC violated Articles 3.7 and 3.8 of the AD Agreement because USITC based its
likelihood of injury determina tion on conjecture and remote possibility and failed to satisfy
the special requirements of Articles 3.7 and 3.8 for making prospective injury determinations;
• USITC violated Articles 11.3 and 3.3 because these provisions preclude cumulation in
Article 11.3 reviews, and USITC cumulatively assessed the effects of OCTG imports from
Argentina, Italy, Japan, Korea, and Mexico to determine whether termination of the anti-
dumping duty on Mexican OCTG imports would be likely to lead to continuation or
recurrence of injury; and
• in the alternative, assuming arguendo, that a cumulative injury anal ysis is permitted in sunset
reviews, USITC violated Articles 11.3 and 3.3 because USITC failed to apply the
requirements of Article 3.3 in this case;
• irrespective of the applicability of Article 3.3 to Article 11.3, the USITC failed to satisfy the
requirements inherent in the conduct of any cumulative injury assessme nt; specifically, the
USITC failed to ensure that cumulation was appropriate in light of the conditions of
competition between imported OCTG, and be tween imported OCTG and the domestic like
product, which findings required a threshold finding that the imports would be simultaneously
present in the US market;
• 19 U.S.C. §§ 1675a(a)(1) and (5) as such violate Articles 3.1, 3.2, 3.4, 3.5, 3.7, 3.8, 11.1,
and 11.3 of the AD Agreement because they re quire that USITC determine whether injury
would be likely to continue or recur "within a reasonably foreseeable time" and that USITC
"shall consider that the effects of revocation or termination may not be imminent, but may
manifest themselves only over a longer period of time"; and
• USITC violated Articles 3.1, 3.2, 3.4, 3.5, 3.7, 3.8, 11.1, and 11.3 of the AD Agreement by
applying 19 U.S.C. §§ 1675a(a)(1) and (5) in the sunset review of OCTG from Mexico;
• USDOC violated Article 11.2 of the AD Ag reement because USDOC did not terminate the
anti-dumping duty immediately upon a showing that the continued application of the duty was
not "necessary to offset dumping";
• USDOC violated Articles 11.2, 2.4, and 2.4.2 of the AD Agreement because USDOC
"zeroed" Hylsa's negative margins and relied on the positive margin that resulted from this
unlawful methodology as justification for not revoking the anti-dumping duty on OCTG from
Mexico with respect to Hylsa;
• USDOC violated Article 11.2 of the AD Agreem ent because USDOC: (i) applied a standard
which required a demonstration that dumping was " not likely" in the future; (ii) arbitrarily
imposed a "commercial quantities" threshold test which has no basis in Article 11.2; and (iii)
it ignored positive evidence that demonstrated that the measure was no longer necessary to
offset dumping;
• USDOC violated Article X:2 of the GATT 1994 because USDOC imposed conditions on
TAMSA for the termination of the anti-dumping duty in advance of the official publication of
such conditions; and

• assuming arguendo that the Panel finds that the stat ute, the SAA and the Sunset Policy
Bulletin do not establish a WTO-inconsistent presumption that violates Article 11.3 of the
AD Agreement, then USDOC violated Article X:3(a) of the GATT 1994 by failing to
administer in an impartial and reasonabl e manner US anti-dumping laws, regulations,
decisions and rulings with respect to USDOC 's conduct of sunset reviews of anti-dumping
duty orders;
• the United States violated the provisions of Article VI of the GATT 1994, Articles 1 and 18
of the AD Agreement, and Article XVI:4 of the WTO Agreement because the United States
violated its obligations under the AD Agreement;
• the United States violated Article 18.4 of the AD Agreement by failing to ensure the
conformity with the above noted laws, regula tions and administrative procedures with its
WTO obligations; and
• the United States violated Article XVI:4 of the WTO Agreement by failing to ensure the
conformity with the above noted laws, regula tions and administrative procedures with its
WTO obligations.
3.2 Mexico also requests the Panel to:
• recommend the United States to bring its measu res into conformity with the covered
agreements (AD Agreement, GATT 1994, WTO);
• suggest that the United States implement its recommendation by immediately revoking the
anti-dumping duty on OCTG imports from Mexico.
B. T
HE UNITED STATES
3.3 The United States requests the Panel to reject Mexico's claims in their entirety. The
United States requests the Panel to find that the cl aim set forth in paragraph 3.1 regarding USDOC's
consistent sunset review practice violation as such of Article 11.3 of the AD Agreement is not within
the Panel's terms of reference. The United States also requests the Panel to rule that exhibit MEX-68
presented by Mexico in the context of the second s ubstantive meeting is inadmissible on the grounds
that it is contrary to paragraph 14 of the Working Procedures for the Panel.
IV. ARGUMENTS OF THE PARTIES
4.1 The arguments of the parties are set out in their written submissions and oral statements to the
Panel and their answers to questions. The execu tive summaries provided by the parties of their
submissions and oral statements, and their answers to questions, are attached to this Report as
Annexes (see List of Annexes, pages iii and iv).9
V. ARGUMENTS OF THE THIRD PARTIES
5.1 The arguments of the third parties, Argentin a, Canada, China, the European Communities,
Japan, Chinese Taipei and Venezuela are set out in their written submissions and oral statements to
the Panel and their answers to questions. The thir d parties' submissions and oral statements, or

9 The English and Spanish versions of Mexico's executive summaries are reproduced as submitted by
Mexico in their original language.

executive summaries thereof, and thei r answers to questions, are attached to this Report as Annexes
(see List of Annexes, pages iii and iv).10 11
VI. INTERIM REVIEW
6.1 In accordance with the timetabl e for these proceedings, both parties submitted comments on
the interim report, requesting review of precise aspec ts of the interim report on 4 April 2005. Neither
party requested a further meeting with the Panel. The United States submitted an unsolicited letter on
11 April 2005, bringing to the Panel's attention certa in aspects of an Appellate Body report issued
after the 4 April deadline for requests for review of the interim report. On 18 April 2005, the parties
submitted comments on each others' comments of 4 April. On 14 April 2005, Mexico submitted a
letter objecting to the US letter of 11 April. We address below the various comments of the parties.
6.2 Turning first to Mexico's request for review, we note that the first two aspects of Mexico's
request relate to the descriptive part of the Panel's report. First, Mexico requests that we include, as
annexes to the report, comments filed by the parties in response to a request from the Panel for their
views on the decision of the Appellate Body in United States – Sunset Reviews of Anti-Dumping
Measures on Oil Country Tubul ar Goods from Argentina ,12 and the parties' comments on the draft
descriptive part of the report. The United States did not comment on this aspect of Mexico's request.
6.3 With respect to the parties' comment s on the Appellate Body decision in US – Oil Country
Tubular Goods Sunset Reviews, as these were submitted in response to a specific request of the Panel,
and set forth substantive arguments regarding the clai ms at issue in this case, we have included them
as annexes to our final Report.
6.4 However, we decline the second part of Mexico 's request, regarding the parties' comments on
the draft descriptive part of the report. While it is well established that a panel's report in dispute
settlement proceedings will include a descriptive part, nothing in the DSU requires that such a
descriptive part exhaustively set forth all aspects of the parties' and third parties' arguments and
positions in the proceedings. In this case, the annexes to the report contain executive summaries of
the parties' and third parties' written and oral submissions, their answers to questions during the
proceedings, and the comments of the parties on the Appellate Body decision in US – Oil Country
Tubular Goods Sunset Review . We see no reason to also include the parties' comments on the draft
descriptive part. Of course, those comments are part of the record of this proceeding, and thus
available to the Appellate Body in the event of an appeal.
6.5 Mexico next requests 1) that the Panel amend pa ragraph 3.1 of the report to include requested
findings Mexico had previously asked to be incl uded in the descriptive part, in its comments on the
draft descriptive part of the report, and 2) that the Panel make the requested findings. The United
States objects to this request, asserting that the Pa nel has examined these arguments, and made the
necessary findings, simply not in Mexico's favour. We did not include the requested findings in the
descriptive part in response to Mexico's original comments, and decline to do so now. We note in this
regard that it is common for the requests for findings in the descriptive part of panel reports to be
drawn verbatim from parties' first submissions, whic h is what we originally did in this case.

10 At the third party session Chinese Taipei made a br ief statement referring the Panel to the arguments
in its written submission, but did not submit a written or electronic version of its statement.
11 The English and Spanish versions of Argentina' s executive summaries are reproduced as submitted
by Argentina in their original language.
 12 Appellate Body Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country
Tubular Goods from Argentina ("US – O il Country Tubular Goods Sunset Reviews "), WT/DS268/AB/R,
adopted 17 December 2004.

However, in response to the comments of the parti es, we also included specific requests for findings
that had been made in the parties' second written submissions. We did not include a number of
Mexico's purported "requests for findings" which we considered to be summaries or restatements of
arguments, and which we considered had not been clearly presented as requests for findings in the
first or second written submissions. This category includes the elements which Mexico now seeks to
have incorporated in the report. As a consequence of our decision, we make no additional findings.
6.6 Mexico notes that the interim report does not incl ude findings with respect to Mexico's claim
that the statute, the SAA, and the SPB establish a sta ndard that is less than "likely" in violation of
Article 11.3. Although it is not specified, Mexico apparently wishes the Panel to make the requested
finding. The United States comments that, in c oncluding that the statute and SAA do not attach
decisive weight to dumping margins and import volumes, but that USDOC perceived the SPB to do
so, the Panel has already addressed Mexico's argu ment regarding Article 11.3 and made findings
accordingly. We decline to make any changes in re sponse to this comment of Mexico. As the United
States notes, we have resolved the issue in dispute, Mexico's claim that the US statute, SAA, and SPB
are, per se, in violation of Article 11.3 of the AD Agreemen t. We do not consider that we are obliged
to make findings in this context with respect to each aspect of Mexico's arguments in support of its
claim.
6.7 The United States has requested that we amend the first sentence of paragraph 3.1 of the
report to reflect the fact that the requested findings listed therein were not all set out in Mexico's first
written submission. We have made the necessary change.
6.8 Mexico next asserts that paragraph 7.8 of th e interim report does not accurately reflect the
parties' position with respect to th e burden of proof. Mexico asks that the paragraph be redrafted to
"reflect accurately" the differing position of the parties on this issue, and that the Panel should
subsequently make a finding on it, explaining how it resolved the differences between the parties.
The United States has not responded specifically to th is comment. We decline to make any changes
in response to this request. Paragraph 7.8 is accurate as drafted. The fact that the Panel asked
questions concerning the burden of proof during the proceedings, to which the parties responded, does
not change the fact that burden of proof was not ra ised by the parties as an issue, and no findings are
necessary. We do not consider it necessary that, in our findings, we reflect all aspects of the parties'
arguments, and developments in those arguments, over the course of the proceedings, particularly
where, as here they concern questions as to whic h no findings are necessary to resolve the claims in
dispute.
6.9 We have corrected the error in paragraph 7.51 of the report identified by Mexico.
6.10 Mexico refers to paragraphs 7. 69 and 7.81 of the interim report, which refer to the fact that
USDOC's final sunset determination was based solely on import volumes, and requests amendment of
the report to "reflect the fact that Mexico rep eatedly explained in its Written Submissions and in
response to specific questions from the Panel the role that historic dumping margins played in the
USDOC's final sunset determination". The United St ates objects to this request. We decline to make
any changes in this regard. We have considered the references to submissions cited by Mexico, and in
our view, these show at most that Mexico asser ted that USDOC relied on historic dumping margins
in its sunset determination, but do not "explain" their role in the determination. In any event, we have
found that, in fact, historic dumping margins did not play a role in the determination, which was, as
also asserted by Mexico, based solely on the d ecline in import volumes following imposition of the
anti-dumping duty.
6.11 Mexico requests that we change paragraph 7.83 to delete the st atement that Mexico cited no
provision of the AD Agreement that requires "reporting" of a margin likely to prevail. The United
States objects to this request. We decline to make the requested change. We have considered the
references to submissions cited by Mexico, and wh ile they do set forth argument concerning alleged

errors in the margin reported by USDOC to the USITC, we can find no reference therein to any
provision of the AD Agreement which requires such reporting.
6.12 Mexico requests that the Panel make findings "with respect to the requirement that there be a
causal link between the likely dumping and likel y injury" and "address the specific comments made
be Mexico during the course of the proceedings." The United States objects to this request. We
decline to make changes to the report in this rega rd. As noted in the report, Mexico's arguments
regarding the USITC determination revolved principa lly around Article 3 of the AD Agreement.
While Mexico did make arguments concerning alleged failure to establish a causal link between likely
dumping and likely injury, these were, in our view , based on Article 3.5, which we found did not
apply in sunset reviews. Mexico did not explain or elaborate on its bare assertion that Article 11.1 of
the AD Agreement and Article VI of GATT 1994 establish "inherent" causation requirements, parallel
to but independent of those in Article 3.5. In the absence of any basis for such findings, we did not
consider it necessary to address this aspect of Mexico's argument.
6.13 The United States requests that we delete, from paragraph 3.1 of the report, the bullet point
describing this request for a finding, asserting that it was not made in any of Mexico's submissions to
the Panel. The requested finding at issue, the 12
th bullet point of paragraph 3.1, appears in paragraph
198 of Mexico's second written submission. As not ed above, unusually in this case, we included
findings requested in the parties' second submissi ons in the descriptive part of the report. We
therefore decline to make the requested change.
6.14 Mexico requests that we include findings on the USITC's "use of the margin likely to prevail
in its assessment of likely injury" and "address th e specific comments made by Mexico during the
course of the proceedings." The United States object s to any further findings in this regard, asserting
that Mexico did not set forth claims in its Panel request that the USITC's alleged reliance on the
margin likely to prevail was inconsistent with eith er Article 3.4 or Article 11.3, that the panel found
that Article 3.4 was not applicable in sunset reviews, and that the Panel found the USITC's
determination consistent with Ar ticle 11.3, making any further findings unnecessary. We decline to
make any changes to the report in this regard. We have concluded that Article 3.4 of the AD
Agreement does not apply in sunset reviews. That is the only provision of the AD Agreement which
refers to consideration of dumping margins in the analysis of injury. Moreover, we note that we
found that the AD Agreement does not obligate USDOC to report such a margin to the USITC, and
we can find no indication in the USITC's report that it in fact "used" the margin likely to prevail
reported to it by USDOC in its analysis of likelihood of continuation or recurrence of injury in this
case. We have found that the USITC's determina tion of the likelihood of injury issue was not
inconsistent with Article 11.3 of the AD Agreement. In the absence of any applicable requirement to
consider the margin likely to prevail, and the absen ce of any evidence that such a margin was in fact
considered, we can see no basis for any findings in this regard.
6.15 Mexico requests changes to the Panel's findings in paragraphs 7.93-7.98 with respect to the
Mexico's "as such" challenge to the standard employ ed by the USITC. Specifically, Mexico requests
that we elaborate on and address further the argume nts presented by Mexico in this regard. The
United States objects to this request. We decline to make any changes in this regard. As previously
noted, we do not consider it necessary that, in our fi ndings, we reflect all aspects of the parties'
arguments, and developments in those arguments, over the course of the proceedings. Moreover, with
respect to statements made in litigation in other fora, as discussed at paragraph 7.97, we do not
consider such statements relevant to the assessme nt whether the "likely" standard applied by the
USITC is per se inconsistent with Article 11.3 of the AD Ag reement. Therefore, we see no reason to
elaborate on Mexico's arguments in this regard.
6.16 Mexico requests that we change paragraph 7.111 of the report, arguing that the statement that
Mexico never argued that the time-frame was too far in the future is inaccu rate. The United States
considers that the Panel's statement is correct. We decline to make the requested change. We have

considered the references to submissions cited by Mexico, and in our view they express Mexico's
argument that the USITC failed to specify the time-fr ame it considered in making its determination of
likelihood of continuation or recurrence of injury, a position not consistent with the suggestion that
Mexico argued that the time-frame was too far in the future.
6.17 Mexico requests that we change paragraph 7. 122 of the interim report, asserting that the
statement concerning the crux of Mexico's claim is not "an accurate description of Mexico's position,
which included several levels of argumentation, a ll of which involved the substantive obligations of
Article 11.3". The United States objects to this requ est. As we have previously noted, we do not
consider it necessary that, in our findings, we reflect all aspects of the parties' arguments, including
various "levels" of argumentation. We consider our statement to be an accurate reflection of the
essence of Mexico's arguments – it does not purport to, nor need it, reflect all the nuances thereof, in
order to introduce our resolution of the claims at issue.
6.18 Mexico requests that we change paragraph 7.149 of the report, asserting that Mexico did not
misquote Article 11.3. The United States objects to th is request. We decline to make the requested
change. Our understanding of Mexico's argument is based on paragraph 254 of Mexico's First
Written Submission, which in both the original Span ish text, and the English translation provided by
Mexico, asserts that "the specific reference in th e text of Article 11.3 to "an anti-dumping duty" is
singular and not plural...".
13 Paragraph 176 of Mexico's S econd Written Submission, which addresses
an argument of the United States, does not alte r our view that Mexico's argument rests on a
misquotation of Article 11.3 of the AD Agreement.
6.19 Mexico requests that we make unspecified ch anges to the report, asserting that the Panel
"failed to address Mexico's third cumulation argument". In this context, Mexico maintains that the
Panel failed to make legal or factual findings re garding "inherent obligations" governing cumulation.
The United States objects to this request. We decline to make any changes in this regard. While it is
true that Mexico requested a finding in this regard , we found that Article 3.3 did not apply in sunset
reviews, and that the requirements regarding cumu lation in that provision therefore did not apply.
Mexico did not explain or elaborate on its ba re assertion that Article 11.3 somehow establishes
"inherent" obligations for cumulation independent of those in Article 3.3. In the absence of any basis
for such findings, we did not consider it necessary to address this aspect of Mexico's argument.
6.20 Mexico requests that we modify two allegedly inaccurate characterizations of Mexico's
position with respect to Article 11.2, in paragraphs 7.157 and 7.173 of the report. The United States
objects to this request. We decline to make th e requested modifications. We note first that
paragraph 7.157 contains a statement of the Panel's understanding of Article 11.2, and is not attributed
to Mexico. With respect to paragraph 7.173, th is paragraph reflects our understanding of Mexico's
argument, which repeatedly stressed the alleged lack of dumping for three consecutive years in
arguing that USDOC was required to revoke the anti-dumping duty order.
6.21 The United States notes that Mexico states in its comments on interim review that it did not
challenge US law as such with respect to Article 11.2. The United States recalls that Mexico had
listed, in a chart summarizing its claims and arguments submitted in response to a question by the
Panel, "as such claims related to Article 11.2"
14, and requests that, in view of Mexico's statement that
it makes no such claim, the Panel find that Mexico abandoned this claim. We decline to make the
requested finding. We did not rely on the chart in question for our understanding of Mexico's claims,
and indeed, never understood Mexico to have made "as such" claims in connection with Article 11.2.
Consequently, there is no basis for a finding that Mexico "abandoned" a claim it never made.

singular y no en plural…".
14 Mexico's answers to the Panel's questions following the second meeting, para. 21.

6.22 Mexico comments that it is "troubled by the l ack of response to its arguments regarding the
appropriate recommendation, suggestions, and findi ngs in the Interim Report." Mexico refers
specifically to its invocation of its rights as a developing country under Article 21.2 of the DSU, and
its requests that "the Panel consider and make a fi nding on this issue." The United States objects to
this request. We note that it is entirely unclear to us what "precise aspects" of the report Mexico
wishes to have reviewed in light of these remarks. To the extent Mexico is referring to its request for
a suggestion or recommendation concerning implementation, we denied that request at paragraph 8.18
of the report. With respect to Article 21.2 of the DS U, while it is true Mexico made reference to that
provision in support of its request that the Panel s uggest that the United Stat es immediately terminate
the anti-dumping duty, we fail to find any elaborati on of legal argument or request for findings under
that provision in Mexico's submissions. Our decision not to make any suggestion regarding
implementation, and specifically not to suggest imme diate termination of the measure, fully disposed
of Mexico's request, and no further findings are necessary.
6.23 Finally, Mexico has pointed out an inconsiste ncy between the English and Spanish texts of
the report in paragraph 8.5. We have made the necessary correction.
6.24 The United States requests that we review paragr aphs 7.52 to 7.64 of the report, arguing that
while paragraph 7.8 of the report correctly sets forth the burden of proof in this dispute, the Panel's
analysis of whether USDOC's Sunset Policy Bulle tin is consistent with Article 11.3 of the
AD Agreement is based on an incorrect allocation of that burden. The United States considers that
Mexico failed to make a prima facie case for its claim regarding the SPB, and that the Panel, by
undertaking a qualitative assessment of the evidence s ubmitted by Mexico improperly made Mexico's
prima facie case for it. In connection with its request , the United States asserts that the Panel's
analysis of the evidence contains several errors, which the United States considers result from the lack
of opportunity for rebuttal of the Panel's analysis. In further support of its position, the United States
submitted a letter drawing the Panel's attenti on to the report of the Appellate Body in United States –
Measures Affecting the Cross-Border Supply of Gambling and Betting Services (US – Gambling ),
WTO/DS285/AB/R, circulated 7 April 2005, which it argues has a direct bearing on the question of
whether a panel may conduct its own review of the evidence, allegedly relieving a complaining part of
the burden of making a prima facie case, and finds that a panel may not do so. Mexico objects to the
United States' request, and to the submission of the letter concerning the US - Gambling report.
6.25 We have carefully considered the US request , and have decided to make no substantive
changes to the report. We note that while the submission of the US letter addressing the Appellate
Body's report in the US - Gambling dispute came very late in the proceedings, it was made at the first
opportunity, very shortly after that report issued. Moreover, Mexico had an opportunity to respond to
the US letter, of which it availed itself. In any ev ent, we were not unaware of the report, and can see
no reason not to consider its import, if any, and th e parties' views in that connection, during interim
review. In these circumstances, we see no harm in accepting the US letter.
6.26 We do not agree with the basis of the US requ est, that in undertaking a qualitative analysis of
the evidence presented by Mexico in connection with its claim that the SPB is inconsistent with
Article 11.3 of the AD Agreement, we have impr operly allocated the burden of proof in this
proceeding, and undertaken improperly to establish a
prima facie case which Mexico failed to do on
its own. The claims and evidence with resp ect to the SPB in this dispute and in the United States –
Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina dispute
were substantially identical. We therefore delayed issuance of our own report until after the Appellate
Body had finished its consideration of the appeal in that dispute, and specifically requested the parties
to comment on the import of the Appellate Body's d ecision. We carefully considered the Appellate
Body's report, and concluded that it was necessary a nd appropriate for us to take guidance from it in
conducting our own analysis in this case. In that context, we note the statement of the Appellate
Body, in that very report, that:

following the Appellate Body's conclusions in earlier disputes is not only appropriate,
but is what would be expected from pa nels, especially where the issues are the
same.
15
6.27 In that report, the Appellate Body found error in the Panel's analysis of the evidence presented
by Argentina in support of its claim that the SPB was inconsistent with Article 11.3 of the AD
Agreement. Unlike the situation in US – Gambling , the Appellate Body did not find that Argentina
had failed to make a prima facie case of violation, which the Panel had then erroneously made for it.
Indeed, while the Appellate Body did not decide th e consistency of the SPB with Article 11.3, it
found that the evidence of the overall statistics, on which the Panel had relied, strongly suggested
inconsistency, but that a definitive conclusion was not possible without a "qualitative examination" of
the determinations represented in those statistics. 16 In the US - Gambling dispute, by contrast, the
Appellate Body faulted the Panel not for its evalua tion of the evidence presented by the parties in
assessing the claims, but for its review of the evid ence presented in order to identify the challenged
measures. Thus, the Appellate Body concluded that the Panel had improperly made Antigua's prima
facie case with respect to inconsistency of certain measures with Article XVI of the GATS. The
Appellate Body observed that the:
evidence and arguments underlying a prima facie case, therefore, must be sufficient
to identify the challenged 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.
17
6.28 In this dispute, we are satisfied that Mexico made out a prima facie case with respect to the
SPB. Mexico clearly identified the measure, the SPB, and its import, that is, how it operated,
identified the relevant WTO provision, Article 11.3, and the obligation therein, to make a reasoned
determination based on facts, and explained the basis for the claimed inconsistency, that the SPB gave
determinative or conclusive effect to the factor s of historical dumping margins and import volumes in
sunset reviews. The fact that our analysis of th e evidence presented by Mexico in support of its claim
was not structured along the lines of Mexico's ar gument, but rather follows the guidance of the
Appellate Body in United States- Oil Country Tubular Goods Sunset Reviews does not establish any
impropriety or need for changes in our report.
6.29 Finally, with respect to the asserted factual erro rs in our analysis of the evidence presented by
Mexico, we note first that the parties had ample opportunity, both originally, and in their comments
following the issuance of the Appellate Body report in United States- Oil Country Tubular Goods
Sunset Reviews, to address that evidence. While it is true they had no opportunity to respond to the
Panel's evaluation of the evidence until interim revi ew, that is not an unusual circumstance – parties
generally do not have an opportunity to respond to a panel's evaluation of their cases until interim
review. Mexico has responded to the US assertions of factual error, arguing that the assertions do not
survive scrutiny, and do not warrant any changes in th e report. We address the allegations of factual
error in our discussion of the USDOC sunset determinations in evidence below.
6.30 The US asserts that the Panel's statement in para graph 7.53 that "206 of those determinations
were in cases where the foreign respondent inter ested parties did not fully participate in the
proceedings, referred to by Mexico as expedited revi ews" is misleading, as it implies that there was
some level of participation by foreign respondents. We consider the statement to be factually
accurate. However, in order to make the situation clear, we have modified the paragraph to indicate

15 Appellate Body Report, United States- Oil Country Tubular Goods Sunset Reviews, para. 188.
16 Ibid., at para. 212.
17 Appellate Body Report, United States – Measures Affecting the Cross-Border Supply of Gambling
and Betting Services (US – Gambling), WTO/DS285/AB/R, circulated 7 April 2005, para. 141.

that in these 206 cases, foreign respondent interested par ties either did not fully participate, or did not
participate at all, in the proceedings. We note that , even if our original statement were considered
misleading in the manner suggested by the United States, this is irrelevant, as our conclusion
concerning the inconsistency of the SPB is not b ased on our review of these determinations. We
commented that a review of a sample of these determinations revealed that they were based on the
SPB scenarios, but this was not determinative of our analysis.
6.31 The United States also asserts that, in paragraph 7.57, the Panel was incorrect, with respect to
one of seven cases referred to, in stating that "there appears to have been no arguments or information
put before the USDOC concerning other factors wh ich might be relevant." In that one case 18, the
United States asserts that a domestic interested party offered argument and data regarding "other
factors" that was considered but not relied upon by USDOC. It appears the United States is referring
to the fact that a domestic interested party in that case argued that USDOC should report a more
recent margin as the margin likely to prevail, based on other factors including changes in exchange
rates. While the decision memorandum does use th e phrase "other factors", it is not in the context
with which we were concerned in our analysis of these determinations. In any event, this does not
change the conclusion drawn on the basis of our re view of the seven cases referred to in this
paragraph, that in each case, the final affirm ative determination was based on one of the three
affirmative SPB scenarios. Nonetheless, we have mo dified the paragraph to clarify that no arguments
or information concerning other factors was put before USDOC by respondent interested parties.
6.32 The United States also asserts that the Panel w as incorrect, with respect to two of five cases
referred to in paragraph 7.58 in st ating that respondent interested pa rties "appear to have made good
cause arguments concerning the relevance of the sc enarios and other evidence". We note that the
United States has misquoted paragraph 7.58, by including a reference to "good cause" before the word
"arguments" in the first sentence. In fact, pa ragraph 7.58 discusses five cases in which "respondent
foreign parties appear to have made arguments concerning the relevance of the scenarios and other
evidence, although they do not appear to have speci fically asserted that good cause existed to
consider other factors." (emphasis added) That is, these cases involved some argumentation by the
respondent foreign parties, but did not involve ar guments that good cause existed to consider other
factors. Thus, the United States' comments on this paragraph do not warrant any change, and we have
made none.
6.33 The United States asserts that the Panel's statem ent in paragraph 7.59, that in three cases,
respondent interested parties asserted "good cause" to consider other factors and that USDOC
ultimately "rejected the assertion of good cause", is misleading with respect to two of the cases. The
United States appears to be relying on the asser tion that USDOC explained why it rejected the good
cause arguments. Even assuming USDOC did explai n the rejection of good cause arguments, this
does not change our view of these cases, and their import. Our view of these cases was not
determined by the explanation given for the rejection, but rather the fact that USDOC concluded that
it had not been demonstrated that good cause existe d to consider other factors, and made an
affirmative final determination based on facts fitti ng one of the SPB scenarios. As we stated, the
consistent results in USDOC sunset reviews, including in these cases, demonstrated the "the
unwillingness of USDOC to actually undertake an anal ysis of evidence other than evidence of import
volumes and dumping margins submitted in sunset reviews".
6.34 The United States asserts that the statement in the last sentence of paragraph 7.60, indicating
that additional evidence was submitted in one case
19 is incorrect, and requests that we delete that
statement. That statement is based on our understanding of the USDOC Decision Memorandum
underlying the final determination, which stat es that USODC was "not convinced based on the

18 Exhibit MEX-62, Tab 13.
19 Exhibit MEX-62, Tab 165.

evidence on the record that responde nts' market share was maintained ". As it was on this point,
relative market share, that USDOC had, in its pr eliminary determination, indicated that it would
provide parties an opportunity to submit additional evidence, we understood the statement in the final
Decision Memorandum to be referring to such additi onal evidence supplied in the final proceedings.
As the United States presumably has a better knowledge of the facts than we can derive from the
published notice and unpublished decision memorandum , we have made the requested change. We
note that this does not affect our conclusions in any way.
6.35 The United States asserts that, in paragraph 7.62, the Panel erred in omitting alleged
additional bases for USDOC's affirmative likelihood determination in one case.
20 We have reviewed
the published decision and cannot agree with the US characterization of the basis of the USDOC
decision. While it is true that the decision discusse s several arguments made by the parties, in our
view, these are subsidiary to the conclusion reach ed, which was that dumping continued after the
imposition of the anti-dumping order, and therefor e, as suggested by SPB scenario (a), dumping
would continue or recur in the event the order we re revoked. We therefore decline to make any
changes in this regard.
6.36 Finally, the United States has noted an extrane ous word in paragraph 7.154. We have made
the necessary correction. We have also corrected a misstatement in paragraphs 7.96 and 7.97, in light
of comments by the United States.
VII. FINDINGS
A. RELEVANT PRINCIPLES REGARDING STANDARD OF REVIEW, BURDEN OF PROOF, AND
TREATY INTERPRETATION
1. Standard of review
7.1 Article 11 of the Dispute Settlement Understandi ng ("DSU") provides the standard of review
for WTO panels in general. Article 11 requires pa nels to make an objective assessment of both the
factual and the legal aspects of the case.
7.2 Article 17.6 of the AD Agreement sets forth a special standard of review that applies
specifically to panel proceedings dealing with th e application of that Agreement. Article 17.6
provides:
(i) in its assessment of the facts of the matter, the panel shall determine whether
the authorities' establishment of the facts was proper and whether their
evaluation of those facts was unbiased and objective. If the establishment of
the facts was proper and the evaluation was unbiased and objective, even
though the panel might have reached a different conclusion, the evaluation
shall not be overturned;
(ii) the panel shall interpret the rele vant provisions of the Agreement in
accordance with customary rules of interpretation of public international law.
Where the panel finds that a relevant provision of the Agreement admits of
more than one permissible interpretati on, the panel shall find the authorities'
measure to be in conformity with the Agreement if it rests upon one of those
permissible interpretations.

20 Exhibit MEX-62, Tab 261.

Taken together, Article 11 of the DSU and Article 17.6 of the AD Agreement establish the standard of
review this Panel must apply with respect to bot h the factual and the legal aspects of the present
dispute.
7.3 Pursuant to that standard of review, in c onducting our examination of the US measures at
issue, we will find them to be consistent w ith the WTO Agreements if we find that the
US investigating authorities established the fact s properly and evaluated them in an unbiased and
objective manner, and that the determinations are b ased on a permissible interpretation of the relevant
treaty provisions. In our assessment of the matter, we will limit our review to the "facts made
available in conformity with appropriate domes tic procedures to the authorities of the importing
Member", in accordance with Artic le 17.5(ii) of the AD Agreement, and will not undertake a de novo
review of the evidence in the record of the sunset review or the fourth administrative review, and will
not substitute our judgement for that of the US inv estigating authorities even if we might have made a
different determination were we examining the evidence in the record ourselves.
2. Relevant principles of treaty interpretation
7.4 With respect to the question of legal interpretation, Article 3.2 of the DSU provides that
Members recognise that the dispute settlement system serves to clarify the provisions of the covered
agreements "in accordance with customary rules of interpretation of publi c international law."
Article 31.1 of the Vienna Convention on th e Law of Treaties ("Vienna Convention") 21, which is
generally accepted as a such a customary rule, provides:
A treaty shall be interpreted in good faith in accordance with the ordinary meaning to
be given to the terms of the treaty in their context and in the light of its object and
purpose.
7.5 There is a considerable body of WTO case la w dealing with the application of these
provisions on treaty interpretation in dispute settlement in the WTO. It is clear that interpretation
must be based above all on the text of the treaty 22, but that the context of the treaty also plays a role in
certain circumstances. It is also well-established that these principles of interpretation "neither require
nor condone the imputation into a treaty of words that are not there or the importation into a treaty of
concepts that were not intended." 23 Furthermore, pane ls "must be guided by the rules of treaty
interpretation set out in the Vienna Convention, and must not add to or diminish rights and obligations
provided in the WTO Agreement."24
7.6 In the context of WTO disputes under the AD Agreement, the Appellate Body has stated that:
The first sentence of Article 17.6(ii), echoing closely Article 3.2 of the DSU, states
that panels 'shall' interpret the provisions of the Anti-Dumping Agreement 'in
accordance with customary rul es of interpretation of public international law.' Such
customary rules are embodied in Articles 31 and 32 of the Vienna Convention on the
Law of Treaties (' Vienna Convention' ). Clearly, this aspect of Article 17.6(ii)
involves no "conflict" with the DSU but, rather, confirms that the usual rules of treaty
interpretation under the DSU also apply to the Anti-Dumping Agreement. …

21 (1969) 8 International Legal Materials 679.
22 Appellate Body Report, Japan – Taxes on Alcoholic Beverages ("Japan – Alcoholic Beverages II "),
WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, 97, p. 11.
23 Appellate Body Report, India – Patent Protection for Pharmaceutical and Agricultural Chemical
Products ("India – Patents (US) "), WT/DS50/AB/R, adopted 16 January 1998, DSR 1998:I, 9, para. 45.
24 Ibid., para. 46.

The second sentence of Article 17.6(ii) … presupposes that application of the rules
of treaty interpretation in Articles 31 and 32 of the Vienna Convention could give
rise to, at least, two interpretations of some provisions of the Anti-Dumping
Agreement, which, under that Convention, would both be ' permissible
interpretations.' In that event, a measure is deemed to be in conformity with the Anti-
Dumping Agreement 'if it rests upon one of those permissible interpretations.'
25
7.7 Thus, it is clear that under the AD Agreement, we are to follow the same rules of treaty
interpretation as in any other dispute. The differenc e is that if we find more than one permissible
interpretation of a provision of the AD Agreement, we may uphold a measure that rests on one of
those interpretations.
3. Burden of proof
7.8 While the parties have not raised burden of pr oof as an issue, we have kept in mind the
general principles applicable to burden of proof in WTO dispute settlement, which require that a party
claiming a violation of a provision of a WTO Agreement by another Member must assert and prove
its claim.
26 In this dispute, Mexico, which has cha llenged the consistency of the United States'
measures, thus bears the burden of demonstrating that the measures are not consistent with the
relevant provisions of the releva nt Agreements. It is generally for each party asserting a fact to
provide proof thereof. 27 Therefore, it is also for the United States to provide evidence for the facts
which it asserts. We also note our understanding that a prima facie case is one which, in the absence
of effective refutation by the other party, requires a pa nel, as a matter of law, to rule in favour of the
party presenting the prima facie case.
B. ALLEGED INCONSISTENCIES IN THE USDOC SUNSET DETERMINATION
1. Alleged inconsistency of US statute, Stat ement of Administrative Action, and Sunset
Policy Bulletin as such
(a) Arguments of Mexico
7.9 Mexico challenges the US statute, the Statem ent of Administrative Action ("the SAA"), and
USDOC's Sunset Policy Bulletin ("the SPB") as such. Mexico considers that US law is inconsistent
with Article 11.3 of the AD Agreement because, taken together, the US statute, 19 U.S.C.
§1675a(c)(1), relevant passages of the SAA, and relevant passages of the SPB establish a presumption
that dumping is likely to continue or recur in certain factual situations. Mexico notes that the statute
requires USDOC to consider the weighted average du mping margins in the original investigation and
subsequent reviews, and the volume of imports before and after the issuance of the anti-dumping duty.
Mexico acknowledges that the statute does not instruct USDOC as to how to interpret these elements
in a particular case. However, Mexico maintains that the SAA and SPB provide further instruction on
this question in a manner which requires that th ese two factors, previously calculated dumping
margins and import volumes, are to be given decisi ve weight in all cases, and places a burden on
exporters to have USDOC even consider other f actors. Mexico then argues that "consistent
US practice" demonstrates the existence and ap plication of the inconsistent presumption, and
constitutes a violation of Article 11.3 itself.

25 Appellate Body Report, United States – Anti-Dumping Measures on Certain Hot-Rolled Steel Products
from Japan ("US – Hot-Rolled Steel "), WT/DS184/AB/R, adopted 23 August 2001, DSR 2001:X, 4697, para. 57.
26 Appellate Body Report, United States – Measure Affecting Imports of Woven Wool Shirts and
Blouses from India ("US – Wool Shirts and Blouses") , WT/DS33/AB/R and Corr. 1, adopted 23 May 1997,
DSR 1997:I, 323, p. 337.
27 Ibid.

7.10 Mexico claims that USDOC's practice in sunset reviews itself constitutes a violation of
Article 11.3 of the AD Agreement "as such". In th is regard, Mexico points to the statistics on the
outcomes of sunset reviews, and asserts that in no case has a respondent ever been able to overcome
the presumption.
(b) Arguments of the United States
7.11 The United States argues that that, as a matter of fact and law, the asserted "presumption" in
sunset reviews does not exist. The United States notes first that Article 11.3 contains only limited
guidance on the conduct of sunset reviews, and does not establish any particular methodology in
making the likelihood determination. The United States argues that Mexico cannot point to any
provisions of US statute that establish the asserted pr esumption. Nor, in the US view, does either the
SAA or the SPB establish the asserted presumption. Rather, the United States argues that these latter
two simply give indications of probable outcomes in certain factual circumstances, describing what
result will "normally" obtain in those circumstance s. However, the actual outcome depends on the
facts of each case. In this regard, the United St ates disputes Mexico's reliance on the outcomes of
US sunset reviews to support its argument that there is a presumption.
7.12 The United States maintains that neither the SPB nor USDOC practice constitute "measures"
which can be found to be inconsistent with Article 11.3 "as such". The US asserts that neither of
these authorizes USDOC to do anything, nor do they establish rules that bind USDOC's actions. The
United States considers the SPB to have essentially the same status as USDOC practice – that is, both
describe the outcomes in previous cases, but in any case, USDOC may depart from the SPB, or its
practice, provided it explains its reasons.
7.13 Finally, the United States argues that even if the SPB and USDOC practice were regarded as
"measures", they cannot be considered inconsistent "as such" because neither is mandatory – that is,
neither the SPB nor USDOC practice requires action inconsistent with the US' WTO obligations, and
neither precludes WTO-consistent action.
(c) Findings
(i) Is US practice a measure before the Panel in this dispute?
7.14 We note first that, although not addressed by either party at the outset, we had concerns with
Mexico's challenge to the USDOC practice as such, as it did not appear to us to be within the Panel's
terms of reference. We questione d Mexico concerning where, in th e request for establishment in this
dispute, such a claim was set out.
28 Mexico responded that
This claim is set forth explicitly in section VII.B of Mexico's First Submission, paras.
110-120. Mexico's claim is set out in section A.1 of the Panel Request:
The Department's 'likely' standard for determining whether
termination of the anti-dumping duty would be likely to lead to
continuation or recurrence of dumping , the
 Department's
determination in this regard , and the Department's calculation of the
'likely' margin of dumping reporte d to the USITC, are inconsistent ,

28 Panel's question 12 to Mexico following the first meeting.

both as such
 and as applied, with Articles 11.1, 11.3, 2.1, 2.2, 2.4,
6.1, 6.2, 6.4, 6.6, and 6.9 of the Anti-Dumping Agreement.29
7.15 Article 6.2 of the Understanding on Rules and Procedures Governing the Settlement of
Disputes (hereinafter "DSU") provides that the request for the establishment of a panel shall "identify
the specific measures at issue and provide a brief summary of the legal basis of the complaint sufficient
to present the problem clearly …"
7.16 In this case, Mexico contends that USDOC practice in sunset reviews is a measure in dispute,
and is inconsistent with Article 11.3. However, we cannot find any mention of USDOC practice in
this regard in the request for establishment. In our view, the cited passage from the request for
establishment does not, in fact, set out a claim with respect to USDOC practice in sunset reviews as
such. Indeed, even Mexico indi cates that the claim is set out "explicitly" in its first submission 30,
suggesting that the claim is not made explicitly in the request for establishment, as is required in
WTO dispute settlement.
7.17 Mexico elaborated arguments on its purporte d claim regarding alle gedly inconsistent
US practice in its first submission, and continued to do so throughout the proceedings. However, in
our view, a failure to state a claim in even the most minimal sense, by identifying the specific measure
at issue in the request for establishment, cannot be cured by presenting arguments in subsequent
submissions. In this regard, we note the statement of the Appellate Body in EC – Bananas:
Article 6.2 of the DSU requires that the claims, but not the arguments, must all be
specified sufficiently in the request for th e establishment of a panel in order to allow
the defending party and any third parties to know the legal basis of the complaint. If
a claim is not specified in the request for the establishment of a panel, then a faulty
request cannot be subsequently 'cured' by a complaining party's argumentation in its
first written submission to the panel or in any other submission or statement made
later in the panel proceeding.
31
Thus, the fact that Mexico may have fully elucid ated its position avails it nothing as a legal matter.
Failure to even mention in the request for establishm ent the measure it alleges is in violation of the
AD Agreement constitutes failure to state a claim regarding such measure at all.

7.18 Mexico implies that we should not dismiss the claim regarding USDOC practice, as the
United States responded to Mexico's "as such" clai ms regarding USDOC's "consistent practice", and
did not argue that Mexico's claim is not properly before the Panel on DSU Article 6.2 grounds.
32
7.19 In this regard, we note that the Appellate Body has stated:
panels have to address and dispose of certain issues of a fundamental nature, even if
the parties to the dispute remain silent on those issues. In this regard, we have
previously observed that '[t]he vesting of jurisdiction in a panel is a fundamental
prerequisite for lawful panel proceedings. 34 For this reason, panels cannot simply
ignore issues which go to the root of their jurisdiction – that is, to their authority to
deal with and dispose of matters. Rather, panels must deal with such issues – if

29 Mexico's answers to the Panel's question 12 following the first meeting, Annex E-1 (emphasis in
original).
30 Ibid.
31 Appellate Body Report, European Communities – Regime for the Importation, Sale and Distribution of
Bananas, WT/DS27/AB/R, adopted 25 September 1997, DSR 1997:II, 591, para. 143.
32 Mexico's opening statement at the second meeting of the Panel, para. 16.

necessary, on their own motion – in order to satisfy themselves that they have
authority to proceed.
34Appellate Body Report, United States – 1916 Act, supra, footnote 32, para. 54.33
7.20 Unlike the lack of prior consultations that was at issue before the Panel in the Mexico – Corn
Syrup (Article 21.5 – US) dispute, we consider this issue to be "a defect that, by its very nature,
deprives a panel of its authority to deal with and dispose of a matter , and that, accordingly, ... [it is]
one which a panel must examine even if both pa rties to the dispute remain silent thereon." 34
Therefore, while it is true that the United States did not make a preliminary objection on this matter,
we considered it appropriate, and indeed, necessar y, to raise this issue on our own motion and
resolve it.
7.21 We conclude that Mexico failed to set fort h a claim regarding USDOC practice in sunset
reviews in its request for establishment of a panel in this dispute. Therefore, that purported claim is
beyond the scope of our terms of refere nce, and we will make no findings on it.
35 However, this does
not, of course preclude Mexico from presenting argum ents referring to USDOC practice in support of
its other claims.
(ii) Issues relating to the status of the Sunset Policy Bulletin in this dispute
7.22 We turn next to the question whether the SPB is properly before us as a measure in this
dispute. The United States submits that the SPB doe s not constitute a measure that can be challenged
in WTO dispute settlement proceedings because it is not a measure that has a functional life of its own
under US law – it does not "do something concrete , independently of any other instruments." 36. The
United States further argues that even if the Pa nel considers the SPB as a measure, it does not
mandate WTO-inconsistent action, and therefore cannot be found inconsistent as such.
7.23 This question has been addressed by other Panels, and by the Appellate Body in US –
Corrosion-Resistant Steel Sunset Review. The Appellate Body has made it clear that the concept of a
"measure" that can be subject to a WTO challenge is very broad: "any act or omission attributable to
a WTO Member can be a measure of that Member for purposes of dispute settlement proceedings" 37
(footnote omitted). The Appellate Body further stated that any legal instrument under a WTO
Member's law could also be challenged as a measure before a WTO panel irrespective of the way in
which it operates in individual cases.
38 Given that the Appellate Body in US – Corrosion-Resistant
Steel Sunset Review was addressing precisely the issue of the SPB, it seemed clear that the Appellate
Body considers the SPB to be a measure that can be subject to WTO dispute settlement. Indeed, the
Appellate Body has recently made this explicit in its decision affirming the conclusion of the Panel to

33 Appellate Body Report, Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS)
from the United States, Recourse to Article 21.5 of the DSU by the United States ("Mexico – Corn Syrup (Article
21.5 – US)"), WT/DS132/AB/RW, adopted 21 November 2001, DSR 2001:XIII, 6675, para. 36.
34 Ibid., para. 64.
35 In view of our finding, we do not consider it n ecessary to address the question whether practice, as
such, constitutes a "measure" which can be challenged as such in WTO dispute settlement.
36 US first submission at para. 111, citing Panel Report, United States – Measures Treating Exports
Restraints as Subsidies ("US – Export Restraints "), WT/DS194/R and Corr.2, adopted 23 August 2001, DSR
2001:XI, 5767, para. 8.85
37 Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-
Resistant Carbon Steel Flat Products from Japan (" US – Corrosion-Resistant Steel Sunset Review "),
WT/DS244/AB/R, adopted 9 January 2004, para. 81.
38 Ibid., para. 82.

that effect in US – Oil Country Tubular Goods Sunset Reviews.
39 The Appellate Body stated in this
regard:
In our view, the SPB has normative value, as it provides administrative guidance and
creates expectations among th e public and among private actors. It is intended to
have general application, as it is to apply to all the sunset reviews conducted in the
United States. It is also intended to have prospective application, as it is intended to
apply to sunset reviews taking place after its issuance. Thus, we confirm – once
again – that the SPB, as such, is subject to WTO dispute settlement.
40
7.24 In light of the foregoing, we consider that the SPB is a measure subject to WTO dispute
settlement. We further conclude that we cannot ru le, in the abstract, on the mandatory/discretionary
distinction, but must consider the nature and meani ng of the relevant sections of the SPB on the basis
of the evidence submitted by Mexico in this case.
(iii) Alleged inconsistency of US statute, SAA, and SPB with Article 11.3
7.25 Before turning to our analysis of the alleged inc onsistency of US law, as set forth in statute,
the SAA, and the SPB, with Article 11.3, we consid er it important to establish what requirement of
Article 11.3 is allegedly violated by those provisi ons. The Appellate Body has made it clear that
Article 11.3 requires that a likelihood determination in a sunset review be made on a sufficient factual
basis, taking into consideration the circumstance s of the case at issue. It cannot be based on
presumptions that establish outcomes if certain facts exist, to the exclusion of a full examination of
the factual circumstances. In other words, a schem e that attributes a determinative/conclusive value
to certain factors in sunset determinations is likely to violate Article 11.3.
7.26 The Appellate Body in US – Corrosion-Resistant Steel Sunset Review pointed out that:
[A] firm evidentiary foundation is requi red in each case for a proper determination
under Article 11.3 of the likelihood of continuation or recurrence of dumping. Such a
determination cannot be based solely on the mechanistic application of presumptions.
We therefore consider that the consistenc y of Sections II.A.3 and 4 of the Sunset
Policy Bulletin with Article 11.3 of the Anti-Dumping Agreement hinges upon
whether those provisions instruct USDOC to treat dumping margins and/or import
volumes as determinative or conclusive , on the one hand, or merely indicative or
probative, on the other hand, of the likelihood of future dumping.

As we have found in other situations, the use of presumptions may be inconsistent
with an obligation to make a particul ar determination in each case using positive
evidence. Provisions that create 'irrebutta ble' presumptions, or 'predetermine' a

39 Appellate Body Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country
Tubular Goods from Argentina ("US – O il Country Tubular Goods Sunset Reviews "), WT/DS268/AB/R,
para. 189, adopted 17 December 2004, affirming finding of the Panel that the SPB is a "measure" subject to
WTO dispute settlement, Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil
Country Tubular Goods from Argentina ("US – Oil Country Tubular Goods Sunset Reviews "), WT/DS268/R, at
para. 7.136, adopted 17 December 2004 as modified by the Appellate Body Report, WT/DS268/AB/R.
40 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, supra note 39, para. 187.

particular result, run the risk of being found inconsistent with this type of
obligation.41 (footnote omitted, emphasis added)
7.27 Thus, the Appellate Body has made it clear that Article 11.3 requires that a likelihood
determination in a sunset review be based on a suffi cient factual basis, taking into consideration the
circumstances of the case at issue, and cannot be based on presumptions that establish a priori
conclusions in certain factual situation without th e possibility of consideration of all the facts and
circumstances. The Appellate Body distinguish ed provisions which create such irrebuttable
presumptions from those which establish that certa in facts are "merely indicative or probative." 42
Clearly, if certain evidentiary factors are treated as determinative or conclusive, we would conclude
that they create an irrebuttable presumption, and thus that the relevant provisions are inconsistent with
Article 11.3 of the AD Agreement. On the other ha nd, if we conclude that the factors required for
consideration under US law are probative and indicativ e, but not determinative, in the assessment of
likelihood of dumping, we may find no inconsistency with Article 11.3.
7.28 In this regard, we understand that Mexico, in arguing that the two factors of import volumes
and historical dumping margins are to be "given decisive weight" 43 is arguing that the challenged
provisions of the statute, SAA, and SPB do treat those factors as determinative or conclusive, and thus
that they establish the existence of an irrebuttable presumption of likelihood of continuation or
recurrence of dumping in US law. This is the relevant question we must address in this dispute.
7.29 We are in much the same position as the Panel was in the US – Oil Country Tubular Goods
Sunset Reviews when it addressed this same question. That Panel concluded that the statute,
interpreted in light of the SAA, did not establish an irrebuttable presumption of likelihood of
continuation or recurrence of dumping based on the factors of import volumes and historical dumping
margins.
44 The Panel further concluded that it was unclear from the text of the SPB itself whether it
established such a presumption.45 The Panel therefore, in order to resolve the issue of the consistency
of the SPB with Article 11.3 of the AD Agreement, turned to evidence presented by Argentina of
USDOC's application of the SPB in its determinations in sunset reviews. The Panel found that in each
of the sunset reviews in evidence, USDOC applie d the contested provisions of the SPB, and found
likelihood of continuation or recu rrence of dumping based on one of the three scenarios. The Panel
concluded that the evidence demonstrated that USDOC perceived the provisions of the SPB as
conclusive regarding the issue of likelihood of c ontinuation or recurrence of dumping. The Panel
considered this result contrary to the requirement of Article 11.3 to make determinations on a
sufficient factual basis, and therefore found the provisions of the SPB inconsistent with Article 11.3.
7.30 On review of the Panel's decision, the Appellate Body concluded that the Panel had correctly
stated the standard for determining whether section II.A.3 of the SPB is consistent with Article 11.3 of
the AD Agreement, approving the Panel's view that "the issue here is whether the SPB directs the
USDOC to treat the mentioned two factors, as presented in these three factual scenarios, as
determinative/conclusive or simply indicative. If we find that the SPB requires the USDOC to treat

41 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , supra note 37,
paras. 178, 191.
42 "We therefore consider that the consistency of Sections II.A.3 and 4 of the Sunset Policy
Bulletin with Article 11.3 of the Anti-Dumping Agreement hinges upon whether those
provisions instruct USDOC to treat dumping margins and/or import volumes as determinative
or conclusive, on the one hand, or merely indicative or probative, on the other hand, of the
likelihood of future dumping."
Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, supra note 37, para. 178.
44 Panel Report, US – Oil Country Tubular Goods Sunset Reviews , supra note 39, para. 7.151. The
Panel used the term "irrefutable", which we understand to mean the same as "irrebuttable" in this context.
45 Panel Report, US – Oil Country Tubular Goods Sunset Reviews, supra note 39, at para. 7.157.

them as conclusive it will follow that Section II.A.3 of the SPB is inconsistent with Article 11.3 of the
Agreement. Alternatively, if these factors are not conclusive but simply indicative we will find
Section II.A.3 to be consistent with Article 11.3."
46 Thus, we will apply that same standard in our
analysis in this case.
7.31 Following the pattern of the Panel in US – Oil Country Tubular Goods Sunset Reviews, and as
prescribed by the Appellate Body in US – Corrosion-Resistant Steel Sunset Review , we will begin
with an analysis of the text of the provisions. If that analysis does not enable us to reach a conclusion,
we will go on to evaluate the evidence submitted by Mexico concerning the application by the
USDOC of these provisions. We note that we have reviewed the arguments made to the US – Oil
Country Tubular Goods Sunset Reviews Panel, and the evidence presented, and consider that they are
very much the same as the arguments and evidence in this dispute. Consequently, we consider the
views of the Panel, and particularly of the Appellate Body, in its review of the Panel's decision, in
US – Oil Country Tubular Goods Sunset Reviews to be highly relevant with respect to the issues
before us. As is required under Ar ticle 11 of the DSU, we have carefully considered the arguments
made by the parties before us, and made an objective assessment of the facts of this case before
reaching our conclusions.
7.32 Mexico asserts that the alleged presumption of likelihood of continuation or recurrence of
dumping is established by the text of the statute, Section 752(c)(1) of the Tariff Act of 1930, as
amended (19 U.S.C. 1675a(c)(1)), and relevant pr ovisions of the SAA and the SPB, in particular
Section II.A.3. In light of the arguments made, we understand Mexico's claim to be that the statute,
read in conjunction with the relevant provisions of the SAA and SPB, establishes an irrebuttable
presumption of likelihood of continuation or recurrence of dumping in certain factual situations.
7.33 The relevant provisions of the US statute, 19 U.S.C. 1675a(c)(1), provide, in pertinent part,
that in determining whether revocation of an anti-dumping duty would be likely to lead to
continuation or recurrence of dumping, USDOC
shall consider—
 (A) the weighted average dumping marg ins determined in the investigation
and subsequent reviews, and
 (B) the volume of imports of the subject merchandise for the period before
and the period after the issuance of the anti-dumping duty order or
acceptance of the suspension agreement.
(2) Consideration of other factors
If good cause is shown, the administering au thority shall also consider such other
price, cost, market, or economic factors as it deems relevant.
47
7.34 The statute clearly establishes that USDOC mu st, in each sunset review, consider two
factors – historical dumping margins and import vol umes – in determining whether dumping is likely
to continue or recur in the case of revocation of th e order. The statute also provides that, if good
cause is shown, USDOC shall consider other factors. It is true the text does impose a threshold on the
consideration of other factors, requiring good cau se before such other factors are considered.
However, we do not consider this to demonstrate, as Mexico argues, that historical dumping margins

46 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , supra note 39, para. 197,
approving Panel Report, supra note 39, at para. 7.155.
47 19 U.S.C. § 1675a(c) (Exhibit MEX-24).

and import volumes have dete rminative or conclusive weight, since if that threshold is passed, other
factors must be considered.48
7.35 Mexico argues that the statute cannot be read in isolation, but must be understood in
conjunction with the SAA and SPB, which give instruc tion on the meaning of the statute. In this
regard, we note that, under US law, the SAA provides an authoritative interpretation of the statute. 49
Thus, it serves as an important tool in our understa nding of the statute. The relevant portion of the
SAA provides:
Under section 752(c)(1), Commerce will ex amine the relationship between dumping
margins, or the absence of margins, a nd the volume of imports of the subject
merchandise, comparing the periods before a nd after the issuance of an order or the
acceptance of a suspension agreement. For example, declining import volumes
accompanied by the continued existence of dumping margins after the issuance of an
order may provide a strong indication that, absent the order, dumping would be likely
to continue, because the evidence would indi cate that the exporter needs to dump to
sell at pre-order volumes. In contr ast, declining (or no) dumping margins
accompanied by steady or increasing imports may indicate that foreign companies do
not have to dump to maintain market share in the United States and that dumping is
less likely to continue or recur if the order were revoked.
The Administration believes that the existen ce of dumping margins after the order, or
the cessation of imports after the order, is highly probative of the likelihood of
continuation or recurrence of dumping. If companies continue to dump with the
discipline of the order in place, it is reasonable to assume that dumping would
continue if the discipline were removed. If imports cease after the order is issued, it
is reasonable to assume that the exporters could not sell in the United States without
dumping and that, to re-enter the US market, they would have to resume dumping.
New section 752(c)(2) provides that, fo r good cause shown, Commerce also will
consider other information regarding, price, cost, market or economic factors it deems
relevant. Such factors might include the market share of foreign producers subject to
the antidumping proceeding; changes in exch ange rates, inventor y levels, production
capacity, and capacity utilisation; any history of sales below cost of production;
changes in manufacturing technology of the industry; and prevailing prices in
relevant markets. In practice, this will permit interested parties to provide
information indicating that observed patte rns regarding dumping margins and import
volumes are not necessarily indicative of the likelihood of dumping. The list of
factors is illustrative, and the Administ ration intends that Commerce will analyze
such information on a case-by-case basis.
50 (emphasis added)
7.36 Consideration of the text of the SAA as an aid to understanding the statute does not change
our view that the statute does not assign conclusive or determinative weight to the two factors of
dumping margins and import volumes. The SAA states that certain fact patterns regarding dumping
margins and import volumes following the imposition of an anti-dumping order are "highly probative"

48 We note that Mexico does not challenge the "goo d cause" aspects of US law, unlike the complainant
in US – Corrosion-Resistant Steel Sunset Review.
49 SAA (Exhibit MEX-26) at 4040. Mexico's reques t for establishment appears to identify the SAA as
a measure in dispute. However, Mexico has made no independent claims concerning the SAA, and has not
presented arguments regarding violation of any provision of the AD Agreement by the SAA, separate from the
arguments regarding the overall alleged inconsistency of US law. We therefore do not address the question
whether the SAA is, standing alone, a measure in violation of any provision of the AD Agreement.
50 SAA (Exhibit MEX-26) at 4213-4214.

or may provide a "strong indication" of the likeliho od of continuation or recurrence of dumping in the
event of revocation of the order. To us, this la nguage clearly indicates that these factors are to be
treated as important indicators of the likelihood of continuation or recurrence of dumping, but not as
determinative or conclusive on that issue. Furthe r, the SAA supports our view, based on the text of
the statute, that the requirement to consider other factors if good cause is shown undermines the
argument that these two factors are determinative or conclusive. Thus, in our view, the SAA does not
support the view that the statute creates an irrebu ttable presumption of continuation or recurrence of
dumping based on these two factors.
7.37 The SAA itself sets out an illustrative list of such other factors, and the text points out that
this will permit interested parties to provide info rmation which would support a conclusion that the
evidence regarding dumping margins and import volumes "are not necessarily indicative" of
likelihood of continuation or recurrence of dumping. Again, this possibility supports the view that the
two factors are not determinative or conclusive. Moreover, the SAA makes clear that USDOC is to
"analyze such information on a case-by-case basis." We recall that the SAA constitutes authoritative
interpretation of US law. In our view, there would be no reason to establish a list of other factors, and
emphasize that they are to be analysed on a case-by -case basis, if information regarding such other
factors could in no case affect the outcome of a sunset review.
7.38 Thus, not only does the SAA contain nothing that would cause us to change our view of the
statute based on its text, but to the contrary, it confirms our view that the statute does not establish that
the factors of historical dumping margins and im port volumes have conclu sive or determinative
weight in USDOC determinations of likelihood of continuation or recurrence of dumping.
7.39 Turning next to the SPB, we observe that the SPB treats the two factors of historical dumping
margins and import volumes in a different manner from the statute itself. Unlike the statute, which
we have concluded does not establish any presumption based on these two factors, the SPB places
these factors in the context of factual scenarios, three of which will "normally" result in USDOC
making an affirmative finding of likelihood of continuation or recurrence of dumping.
7.40 We note at the outset that there are two aspects to our consideration of the SPB. The first is in
the context of our understanding of the US statute – th at is, as an interpretive tool. In this regard, we
note that, unlike the SAA, the SPB is not identified as an authoritative interpretation of the statute.
Indeed, by its own terms the SPB is subordinate to the statute. The SPB states, in relevant part:
The proposed policies are intended to co mplement the applicable statutory and
regulatory provisions by providing guidance on methodological or analytical issues
not explicitly addressed by the statute and regulations.
51
Thus, even assuming USDOC "complemented" the pr ovisions of the statute in the SPB in a manner
inconsistent with Article 11.3, th is could not, in our view, fundament ally change the meaning of the
statute, and thus does not change our understanding of the statute as discussed above.
7.41 The second aspect of our consideration is in the context of our review of the SPB as a
measure. In undertaking this analysis, we turn fi rst to the text of the SPB. The SPB provides in
pertinent part at section II.A.3:
[T]he Department normally will determine that revocation of an antidumping order or
termination of a suspended dumping investigati on is likely to lead to continuation or
recurrence of dumping where—

51 SPB (Exhibit MEX-32) at 18871.

(a) dumping continued at any level above de minimis after the issuance of the
order or the suspension agreement, as applicable;
(b) imports of the subject merchandise ceased after issuance of the order or the
suspension agreement, as applicable; or
(c) dumping was eliminated after the issuance of the order or the suspension
agreement, as applicable, and impor t volumes for the subject merchandise
declined significantly.
The Department recognizes that, in the context of a sunset review of a suspended
investigation, the data relevant to the cr iteria under paragraphs (a) through (c), above,
may not be conclusive with respect to like lihood. Therefore, the Department may be
more likely to entertain good cause argumen ts under paragraph II.C in a sunset
review of a suspended investigation.…
[T]he Department normally will determine that revocation of an antidumping order or
termination of a suspended dumping investiga tion is not likely to lead to continuation
or recurrence of dumping where dumping was eliminated after issuance of the order
or the suspension agreement, as applicable, and import volumes remained steady or
increased. Declining margins alone normally would not qualify because the
legislative history makes clear that continued margins at any level would lead to a
finding of likelihood. See section II.A.3, above. In analyzing whether import volumes
remained steady or increased, the Departme nt normally will consider companies'
relative market share. Such information s hould be provided to the Department by the
parties.
The Department recognizes that, in the context of a sunset review of a suspended
investigation, the elimination of dumpi ng coupled with steady or increasing import
volumes may not be conclusive with resp ect to no likelihood. Therefore, the
Department may be more likely to entertain good cause arguments under paragraph
II.C in a sunset review of a suspended investigation. ...
Section 752(c)(2) of the Act provides that, if the Department determines that good
cause is shown, the Department also will consider other price, cost, market or
economic factors in determining the likeli hood of continuation or recurrence of
dumping. The SAA at 890, states that such other factors might include,
the market share of foreign producers subject to the antidumping proceeding; changes in
exchange rates, inventory levels, production capacity, and capacity utilization; any history of
sales below cost of production; changes in manufacturing technology in the industry; and
prevailing prices in relevant markets.
The SAA at 890, also notes that the list of factors is illustrative, and that the
Department should analyze such information on a case-by-case basis.
Therefore, the Department will consider ot her factors in AD sunset reviews if the
Department determines that good cause to c onsider such other factors exists. The
burden is on an interested party to provide information or evidence that would
warrant consideration of the other factors in question. With respect to a sunset review
of a suspended investigation, where th e Department determines that good cause

exists, the Department normally will conduct the sunset review consistent with its
practice of examining likelihood under section 751(a) of the Act.
52
7.42 Thus, the SPB provides that the USDOC will "normally" make an affirmative likelihood
determination if it finds one of three factual scenar ios to exist. These factual scenarios are based on
the two factors that USDOC is required, by the statut e, to consider in each sunset review – that is,
historical dumping margins and import volumes. Ho wever, while the statute does not limit in any
way the possible outcomes that might result from that consideration, the SPB does appear to do so.
The SPB identifies patterns with respect to these two factors – the factual scenarios – and states that in
certain of these scenarios, USDOC will "normally" fi nd a likelihood of continuation or recurrence of
dumping.
7.43 The use of the word "normally" in the SPB could be understood to indicate that the SPB
envisages the possibility that likelihood of conti nuation or recurrence of dumping may not be found
even if the facts fit one of the three scenarios based on the pattern of import volumes and dumping
margins, thus suggesting these two factors are indicativ e, rather than determinative or conclusive – if
they were to be treated as determinative or c onclusive, one would not expect to see the word
normally. However, nothing in the SPB itself clarifi es whether normally should be understood in this
way.
7.44 In addition, the SPB states that, in the case of a sunset review of a suspended investigation,
the existence of facts fitting one of scenarios may not be conclusive.
The Department recognizes that, in the context of a sunset review of a suspended
investigator, the data relevant to the crit eria under paragraphs (a ) through (c), above,
may not be conclusive with respect to likelihood.53
That USDOC considered it necessary to include this additional statement in the SPB could be
understood to imply, a contrario, that the existence of facts fitting one of the factual scenarios will be
conclusive in USDOC's determination except in th e case of a suspended investigation. If the three
scenarios may not be conclusive in sunset reviews of su spended investigations, this suggests that
"normally", they may well be so.
7.45 However, in our view, it is not sufficiently clear from the text of the SPB whether
determinative or conclusive weight is attributed to the two factors of import volumes and historical
dumping margins. Therefore, we need to extend our analysis to consider what the evidence of
USDOC's application of the SPB reveals about USDO C's view of what the SPB envisions in sunset
reviews, as an aid to our understanding the SPB, in order to determine whether it attributes
determinative or conclusive wei ght to the two factors, historical dumping margins and import
volumes, or whether these two factors are merely indicative.
7.46 Mexico has proffered evidence concerning USDOC determinations in sunset reviews as an
aid to understanding how USDOC itself understands and applies the SPB, arguing that those
determinations demonstrate the dete rminative weight given to the two factors of historical dumping
margins and import volumes by USDOC. We note that this is fundamentally the same argument, and
largely the same evidence, as pr offered by Argentina in the US – Oil Country Tubular Goods Sunset
Reviews.
7.47 The Panel in that case had concluded, based on its review of the evidence concerning 291
sunset review determinations presented by Argentina, that "USDOC does in fact perceive the

52 SPB (Exhibit MEX-32) at 18872-18874.
53 Ibid., at 18872-18874.

provisions of Section II.A.3 of the SPB as conclusive." 54 The Panel stated that its analysis of the
evidence "demonstrate[d] that the USDOC applied the contested provisions of the SPB in each sunset
review and found likelihood of continuation or recu rrence in each one of these sunset reviews on the
basis of one of the three scenarios contained in Section II.A.3 of the SPB."
55 The Panel found the
SPB inconsistent with Article 11.3 of the AD Agreement.56
7.48 The Appellate Body reversed the Panel's decision.57 The Appellate Body faulted the Panel for
having reached its conclusion on USDOC's consistent application of the SPB relying "solely on the
overall statistics, or aggregate results", noting that the Panel "did not undertake a qualitative analysis
of at least some of the individual cases [presented in evidence] in order to see whether the USDOC's
determinations in those cases were objective and rested on a sufficient factual basis."58 The Appellate
Body observed that:
The fact that affirmative determinations were made in reliance on one of the three
scenarios in all the sunset reviews of anti-dumping duty orders where domestic
interested parties took part strongly suggest s that these scenarios are mechanistically
applied. However, without a qualitative ex amination of the reasons leading to such
determinations, it is not possible to concl ude definitively that these determinations
were based exclusively on these scenarios in disregard of other factors.
59
While the Appellate Body recognized the importance of the two factors, historical dumping margins
and import volumes, it stated: "our concern here is with the possible mechanistic application of the
three scenarios based on these factors, such that other factors that may be of equal importance are
disregarded."60 Finally, the Appellate Body emphasized th at it had not concluded that Section II.A.3
of the SPB is consistent with Article 11.3 of the AD Agreement. Thus, the Appellate Body stated that
its reasoning "does not exclude the possibility that it could be properly concluded that the three
scenarios in section II.A.3 of the SPB are regarded as determinative/conclusive of the likelihood of
continuation or recurrence of dumping. However, such a conclusion would need to be supported by a
rigorous analysis of the evidence regarding the manne r in which section II.A.3 of the SPB is applied
by the USDOC."61

7.49 Based on our understanding of the Appellate Body's decision in US – Oil Country Tubular
Goods Sunset Reviews it seems clear that we must undertak e a qualitative assessment of the evidence
concerning USDOC's sunset review determinations. The Appellate Body has given us guidance on
the nature of such an assessment, observing that the Panel in that case appeared:
not to have examined in how many cases th e foreign respondent parties participated
in the proceedings, in how many they in troduced other 'good cause' factors, and how
the USDOC dealt with those factors when they were introduced. Such an inquiry
would have enabled the Panel to identify and undertake a qualitative analysis of at
least some of those cases to see whether the affirmative determinations were made
solely on the basis of one of the scenarios to the exclusion of other factors.
62

54 Panel Report, US – Oil Country Tubular Goods Sunset Reviews, supra note 39, para. 7.165.
55 Ibid
56 Ibid., para. 7.166.
57 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , supra note 39, at
para. 215.
58 Ibid., para. 210.
59 Ibid., para. 212 (footnote omitted).
60 Ibid., para. 208.
61 Ibid., para. 215.
62 Ibid., para. para. 212.

The Appellate Body went on to explain that;

in order to objectively assess, as required by Article 11 of the DSU, whether the three
factual scenarios of Section II.A.3 of the SPB are regarded as
determinative/conclusive, it is essential to examine concrete examples of cases where
the likelihood determination of continua tion or recurrence of dumping was based
solely on one of the scenarios of Section II.A.3 of the SPB, even though the probative
value of other factors might have outweighed that of the identified scenario. Such an
examination requires a qualitative assessment of the likelihood determinations in
individual cases.
63
7.50 We cannot just look at the statistics to determin e if, as a matter of fact, the scenarios in the
SPB are consistently treated by USDOC as determina tive or conclusive, in order to assist us in
determining whether the SPB is, as such, consistent with Article 11.3 of the AD Agreement. In this
regard, we note the finding of the Appellate Body in US-Carbon Steel:
a responding Member's law will be treated as WTO-consistent until proven otherwise.
The party asserting that another party's munici pal law, as such, is inconsistent with
relevant treaty obligations bears the burde n of introducing evidence as to the scope
and meaning of such law to substantiate th at assertion. Such evidence will typically
be produced in the form of the text of the relevant legislation or legal instruments,
which may be supported, as appropriate, by evidence of the consistent application of
such laws, the pronouncements of domestic courts on the meaning of such laws, the
opinions of legal experts and the writings of recognized scholars. The nature and
extent of the evidence required to satisfy the burden of proof will vary from case to
case.64 (footnote omitted, emphasis added)
7.51 Therefore, it is not consistency in the outcomes of US sunset reviews, but rather consistency
in the process of decision-making, and the bases on which the decisions were reached, that are
relevant to our assessment. The fact that in each of 232 of the sunset review determinations put
before us in evidence, USDOC made an affirmativ e determination of likelihood of continuation or
recurrence of dumping is not sufficient in itself to demonstrate that the scenarios set out in the SPB
are determinative or conclusive. 65 While this fact may raise concerns as to whether USDOC has, as
required by Article 11.3, based its determination on a sufficient factual basis, taking into consideration
the circumstances of each case, it does not resolve the issue.
7.52 Turning then to the evidence, Mexico has put before us, in exhibits MEX-62 and 65, evidence
in the form of preliminary and final USDOC determin ations in 306 sunset reviews, including decision
memoranda setting out the analysis and recommenda tion underlying the determinations. Of those
306 determinations, 74 cases terminated in revoc ation of the anti-dumping duty, based on no
participation by the domestic industry. 66 Obviously, these have no rele vance to the question before
us.

63 Ibid., para. 209 (footnote omitted).
64 Appellate Body Report, United States – Countervailing Duties on Certain Corrosion-Resistant Carbon
Steel Flat Products from Germany ("US – Carbon Steel "), WT/DS213/AB/R and Corr.1, adopted
19 December 2002, para. 157. This finding was relied upon by the Appellate Body in its Report in US –
Corrosion-Resistant Steel Sunset Review, supra note 37, para. 168
65 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, supra note 39, para. 212.
66 We note that our grouping of these cases is that set out in the table provided by Mexico, Exhibit
MEX-62-Chart and MEX-65-Chart. As Mexico bears the bu rden of demonstrating the consistent application of
the SPB by USDOC, we considered it appropriate to use Mexico's own characterization of the evidence it
presented in support of its argument.

7.53 206 of those determinations were in cases where the foreign respondent parties either did not
participate at all, or did not full y participate in the proceedings, referred to by Mexico as "expedited"
reviews.67 In these cases, there may well have been othe r facts that might be relevant or probative,
but they were not before USDOC, and thus were not addressed. We have reviewed a sampling of
these decisions, and note that in each of t hose we considered, USDOC's final affirmative
determination of likelihood of continuation or r ecurrence of dumping was based on one of the three
affirmative scenarios.
7.54 We thus come to the remaining 26 determinations. These were made by USDOC in "full"
sunset reviews, in which foreign respondent par ties participated, at least in the preliminary
determination phase. Of these, we consider that the five determinations made in suspended
investigations do not shed light on the issue before us. While th ese investigations do involve the
participation of respondent foreign parties, the re levance and application of the scenarios in the SPB
in the case of suspended investigati ons is materially different, by the terms of the SPB itself, than in
sunset reviews of anti-dumping duties in force. I ndeed, it is in part because the SPB itself suggests
that the scenarios do not have conclusive or determin ative weight in suspended investigations that we
are addressing the question whether they do have such weight in other cases. Our task here is to
examine the evidence in order to assess whether there is consistent USDOC practice which can aid us
in understanding the situation with respect to reviews in cases other than suspended investigations.
7.55 Finally, we are left with 21 cases involving sunset reviews of anti-dumping duties in which
both domestic and foreign interested parties partic ipated. We have carefully read the published
USDOC determinations in these cases, and where th ey exist and were submitted in evidence, the
underlying decision memoranda, to assist us in determining, as a matter of fact, whether there is a
pattern of consistent application of the SPB which can aid us in deciding whether the factual scenarios
set out in the SPB are regarded as determinative or conclusive, or merely indicative. We emphasize
that these decisions are not before us for review on their own merits – that is, we are not reaching any
conclusions as to whether these decisions themselves were made consistently with the requirements of
the AD Agreement. Rather, we are looking to this evidence to assist us in interpreting the SPB in
light of its application by USDOC.
7.56 Looking at these 21 full reviews, we find that in 15 of these cases, 68 USDOC appears to have
considered that scenario (a) of the SPB applied – that is, dumping continue d after the imposition of
the order at a level above de minimis.
7.57 In seven of these 15 cases, there appears to have been no arguments or information put before
USDOC by respondent interested parties concerning ot her factors which might be relevant – there is,
in any event, no discussion of whether or not good cause exists to consider other factors. 69 In each of
these cases, the final affirmative determination of likelihood of continuation or recurrence of dumping
was based on one of the three affirmative SPB scenarios.
7.58 In five of these 15 cases, respondent foreign parties appear to have made arguments
concerning the relevance of the scenarios and other evidence, although they do not appear to have
specifically asserted that good cause existed to consider other factors. 70 These cases suggest that
USDOC may have considered the existence of facts f itting scenario (a) as determ inative. In at least

67 We note that the treatment of some cases as "exped ited" by USDOC is not at issue in this dispute, as
it was before the Panel in US – Oil Country Tubular Goods Sunset Reviews . Our understanding is that reviews
may be treated as "expedited" in several circumstances, including cases where inadequate responses are received
from foreign respondent parties as well as cases in which such parties elect not to participate.
68 Exhibit MEX-62 Tabs 13, 19, 25, 35, 62, 75, 78, 84, 89, 124, 146, 159, 163, 194, and 272.
69 Exhibit MEX-62 Tabs 13, 19, 146, 159, 163, 194, and 272.
70 Exhibit MEX-62 Tabs 25, 35, 62, 75, and 89.

one case,
71 USDOC, stated, in its preliminary determination, "[b]ecause we have based these
preliminary results on the continuation of dumping, we have not considered the interested parties'
arguments related to other factors." 72 Such statements are troubling, as they certainly do not indicate
an open-minded willingness to consider potentially relevant information and make an objective
evaluation based on the circumstances of each case.73
7.59 In three of these 15 cases, 74 respondent foreign parties did assert that there was good cause to
consider other factors, and submitted arguments concerning such other factors. In each of these cases,
USDOC rejected the assertion of good cause. In one of these cases,75 the respondent foreign party did
not submit evidence of good cause in a timely fashion under USDOC regulations, but USDOC
indicated that even if it had considered the othe r factors, the determination would still have been
based on the import volumes and dumping margins on th e record. In both of the other two cases,
USDOC concluded that it had not been demonstr ated that good cause existed to consider other
factors, and made an affirmative final determina tion based on facts fitting one of the SPB scenarios.
Again, the consistent results of these decisions are troubling, as is the unwillingness of USDOC to
actually undertake an analysis of evidence ot her than evidence of import volumes and dumping
margins submitted in sunset reviews.
7.60 In four of the 21 cases put before us,
76 USDOC appears to have considered that scenario (c) of
the SPB applied – that is, dumping was eliminat ed after the imposition of the duty, and import
volumes declined significantly. In two of these cases,77 respondent foreign parties specifically argued
that good cause existed to consider other factors, while in the other two cases, respondent foreign
parties presented arguments on the interpretation of the facts in light of the SPB. These arguments
were rejected by USDOC in each case. Again, the stated rationale for certain of the rejections is
circular and troubling: "Since we are basing our likelihood determination on the elimination of
dumping at the expense of exports, it is not necessary to consider other factors ..." 78 In another case,79
despite an asserted willingness in the preliminar y phase to consider additional evidence and
arguments,80 USDOC made a final affirmative determina tion of likelihood, relying on a decline in
import volumes, as set out in one of the SPB scenarios.
7.61 Overall, the consistency of the outcomes is troubling, and raises serious doubts about
USDOC's decision-making process. While we recogni ze that the USDOC itself has stated that the
SPB scenarios are not determinative in its decision-ma king, we consider it telling that even in those
cases, cases where facts are presented that might warrant a different outcome, the decisions conform
to "normal" results predicted by the SPB scenarios.
7.62 Finally, in two of the 21 full sunset reviews, 81 USDOC reached a preliminary determination
of no likelihood of continuation or recurrence of dumping. In one of these cases, 82 scenario (c)

71 Exhibit MEX-62 Tab 89.
72 Exhibit MEX-62 Tab 89, Issues and Decision Memorandum, Preliminary Results at p. 5. We note
that no briefs were submitted in the final phase of this case, and the final determination in this case was a
finding of likelihood of continuation or recurrence of dumping.
73 We note that the respondent foreign parties did not submit any further arguments in response to the
preliminary determination.
74 Exhibit MEX-62 Tabs 78, 84 and 124.
75 Exhibit MEX-62 Tab 78.
76 Exhibit MEX-62 Tabs 42, 165, 179 and 201.
77 Exhibit MEX-62 Tabs 165 and 201.
78 Exhibit MEX-62 Tab 201 Issues and Decision Memorandum, Preliminary Results at pp. 6-7.
79 Exhibit MEX-62 Tab 165.
80 Exhibit MEX-62 Tab 165 – Preliminary Results of Full Sunset Review, 65 Fed. Reg. 753, 754
(6 January 2000).
81 Exhibit MEX-62 Tabs 32 and 261.

appeared to be relevant – that is, dumping w as eliminated and imports declined – and USDOC
preliminarily concluded that other relevant information and argument indicated that it was unlikely
that the respondent foreign company would resume dumping. In the end, however, USDOC made an
affirmative final determination, relying on eviden ce fitting one of the SPB scenarios. In the second
case83, USDOC in the preliminary phase of the re view found no likelihood of continuation or
recurrence of dumping in light of facts that did no t fit any of the three affirmative SPB scenarios.
USDOC then took the unusual step of conducting a cost-of-production analysis, and calculated a
dumping margin, and made an affirmative determinat ion of likelihood, based on the conclusion that
dumping continued after the imposition of the order, as suggested by SPB scenario (a).
7.63 In summary, our qualitative analysis of USDOC de cisions reveals a clear picture. In almost
all cases, USDOC begins with a recitation of the SPB scenarios. In the simplest cases, the
determinations then recite facts fitting one of th e scenarios, and USDOC concludes that there is a
likelihood of continuation or recu rrence of dumping. In other cases, USDOC seems clearly to have
made its decision based exclusively on the SPB, wi thout giving consideration to other potentially
probative factors in evidence. We consider it telli ng that some of the determinations appear to
indicate that the USDOC perceives the SPB scenarios as conclusive or determinative to the extent of
obviating any necessity even to admit, let alone weigh, evidence as to other factors. 84 In a few cases,
USDOC appears at the outset willing to consider whet her other factors may be relevant or probative,
but does not ultimately rely on such factors, dismissing them summarily or not discussing them at all,
and basing its final determination on evidence fitting the SPB scenarios. We emphasize that we are
not focussing solely on the outcomes in these sunset reviews, but rather on our qualitative analysis of
the determinations, and what we can discern about USDOC's decision-making process underlying
those determinations. We therefore conclude that , despite the apparent recognition that it may do
otherwise, USDOC has consistently based its determ inations in sunset reviews exclusively on the
scenarios, to the disregard of other factors.
85 In our view, the actual determinations made, which in all
cases ultimately conform to the results predicted by the SPB scenarios, belie the conclusion that
USDOC does not consider them as conclusive or determinative in sunset reviews.
7.64 As discussed above, we have found that the US st atute, read in light of the SAA and the SPB,
is not as such inconsistent with Article 11.3 of the AD Agreement. With regard to the SPB itself, we
were unable to determine, based on its text, whether it gave determinative or conclusive weight to the
scenarios regarding historical dumping margins a nd import volumes. We thus looked to USDOC
decisions to see if consistent practice by USDOC under the SPB could shed light on the import of the
SPB in this regard. We recall that we undertook this analysis of the evidence put before us by Mexico
in order to aid us in understanding the SPB and assessing whether it is, as such, inconsistent with
Article 11.3 of the AD Agreement because it establis hes an irrebuttable presumption of likelihood of
continuation or recurrence of dumping. Based on our analysis, we consider that the SPB scenarios are
treated as conclusive or dete rminative in sunset reviews. 86 Thus, we conclude that the SPB

82 Exhibit MEX-62 Tab 32.
83 Exhibit MEX-62 Tab 261.
84 In this regard, we note that a mere recitation of evidence or arguments made by respondent foreign
parties cannot, in our view, support the conclusion that such evidence or arguments have been actually weighed,
in the absence of some analysis.
85 We emphasize that our analysis of the USDOC determinations is not to be understood as suggesting
that any particular decision was made consistently with US obligations under the AD Agreement. Indeed, we
have serious doubts about the consistency of some of the decisions reviewed, but as they are not themselves
before us in this dispute, we wish to be clear that we are not passing judgement on their consistency per se.
86 We do not dispute that USDOC might have reached the same conclusi ons in some cases even had it
not mechanistically applied the SPB scenar ios, but rather carried out an objectiv e analysis of the relevant facts.
However, the existence of some co rrect results does not undermine our conclusion that USDOC made its
determinations by applying the SPB scenarios, to the disregard of other potentially relevant and probative
information.

establishes an irrebuttable presumption in this regard, and consequently that Mexico has demonstrated
that the SPB is, as such, inconsistent with Article 11.3 of the AD Agreement.
7.65 As noted above, we have concluded that Mexi co's claim regarding USDOC practice, as such,
is not within our terms of reference, and we therefore make no findings on that claim.
7.66 Finally, we note that our conclusion regarding the inconsistency of the SPB has no effect on
our view of the consistency of the US statute. The SPB states, in relevant part:
The proposed policies are intended to co mplement the applicable statutory and
regulatory provisions by providing guidance on methodological or analytical issues
not explicitly addressed by the statute and regulations.
87
The fact that USDOC has "complemented" the provisi ons of the statute in the SPB in a way which is
inconsistent with Article 11.3 does not, in our vi ew, change the meaning of the statute, which we
have found to be not inconsistent with Article 11.3 in this regard.
7.67 Having found the SPB to be inconsistent w ith Article 11.3, we do not address Mexico's
alternative claim under Article X:3(a) of the GATT 1994.
2. Alleged inconsistency of US DOC determination of likelihood of continuation or
recurrence of dumping
(a) Arguments of Mexico
7.68 Mexico argues that the determination in this case is inconsistent with Articles 11.3 and 2 of
the AD Agreement. Mexico argues that USDOC's determination in the OCTG sunset review is
inconsistent with Article 11.3 of the AD Agreemen t because USDOC focused solely on a decline in
import volume, ignored relevant evidence, did not make its determination consistently with the
obligations of Article 2 of the AD Agreement, faile d to conduct a prospective analysis, failed to make
a determination of "likely" continuation or recurrence of dumping, and failed to base its determination
on positive evidence.
7.69 Mexico asserts that USDOC's determination was based solely on the fact that the volume of
imports of OCTG from Mexico declined followi ng the imposition of the anti-dumping duty order in
1995, and remained well below the pre-order levels during the period the order was in place. Mexico
asserts that USDOC ignored the evidence provided by the Mexican exporters concerning why import
volumes declined, and evidence concerning why the hi storical margins of dumping were not relevant
to the issue of likely dumping, and simply relied on historical information and the dumping margin
calculated in the original investigation. Moreover, Mexico asserts that the dumping margin calculated
for TAMSA in the original inves tigation was based on a unique set of circumstances arising from the
Mexican peso crisis in 1994, and thus was even less reliable as a consideration in the sunset review.
Mexico argues that USDOC ignored that zero dump ing margins had been calculated for TAMSA in
successive administrative reviews. With respect to Hylsa, Mexico argues that as it was not
investigated in the original investigation, and the only dumping margin calculated for it was below
2 per cent, Hylsa had never been determined to be dumping within the meaning of Article 2 of the
AD Agreement. Mexico also argues that by relyi ng on the dumping margin calculated in the original
investigation, USDOC violated Article 11.3 by not making a prospective determination, and by
denying Mexico the opportunity to present eviden ce and defend its interests, USDOC acted in
violation of Article 6 of the AD Agreement.

87 SPB (Exhibit MEX-32) at 18871.

7.70 Finally, Mexico also claims that the margin of dumping reported by USDOC to the USITC as
the "margin likely to prevail", which was the dumping margin calculated in the original investigation,
21.70 per cent, is inconsistent with Articles 2 and 6 of the AD Agreement.
(b) Arguments of the United States
7.71 With respect to the "as applied" aspect of Mexico's claim, the United States argues that
Mexico's claim amounts to disagreement with USDOC's weighing of the evidence. The United States
asserts that USDOC did not "rely" on the margin calcu lated in the original investigation in making its
determination of likelihood of cont inuation or recurrence of dumping, and that therefore there can be
no violation of Article 2. The United States asserts that USDOC fully considered all the record
evidence, including that of the completed second and third administrative reviews, but concluded that
in light of the low level of exports from TAMSA at the zero levels of dumping calculated, there was a
likelihood that dumping would continue or resume. The US notes that USDOC's determination is not,
and is not required to be, on the basis of evaluatio n of individual companies/exporters, but is with
respect to the anti-dumping duty order as a whole.
7.72 The United States notes that there is no obligatio n in the AD Agreement to "report" a margin
to the USITC, and maintains that therefore there can be no violation in reporting the margin as
USDOC did in this case. Moreover, the United St ates asserts that there is no obligation under the
AD Agreement for the USITC to consider the marg in of dumping in making its determination of
likelihood of continuation or recurrence of injury. Therefore, the US considers that the Panel need not
consider the manner in which USDOC identified the margin it reported to the USITC.
(c) Findings
7.73 Before turning to our assessment of the USDO C determination in dispute, we outline below
our understanding of the obligations established by Article 11.3 with respect to determinations of
likelihood of continuation or recurrence of dumping. Article 11.3 of the AD Agreement provides:
Notwithstanding the provisions of paragra phs 1 and 2, any definitive anti-dumping
duty shall be terminated on a date not la ter than five years from its imposition (or
from the date of the most recent review under paragraph 2 if that review has covered
both dumping and injury, or under this pa ragraph), unless the authorities determine,
in a review initiated before that da te on their own initiative or upon a duly
substantiated request made by or on be half of the domestic industry within a
reasonable period of time prior to that date, that the expiry of the duty would be likely
to lead to continuation or recurrence of dumping and injury. 22 The duty may remain
in force pending the outcome of such a review.

authority must act with an appropriate degree of diligence and arrive at a reasoned conclusion on the
basis of information gathered as part of a process of reconsideration and examination.
89 Moreover, an
investigating authority's determination that dumping is likely to continue or recur must be supported
by reasoned and adequate conclusions based on the facts before it.
7.75 In the case at hand, two Mexican exporters, TA MSA and Hylsa, participated fully in the
sunset review, and submitted arguments and informat ion in support of their position that there was no
likelihood of continuation or recurrence of dumping. Mexico argues that USDOC ignored relevant
evidence submitted by the two companies and instead, relied solely on the decline in import volumes
in making its determination. Specifically, Mexico asserts that USDOC ignored evidence presented by
TAMSA that the reason for the decline in import volumes was that it was not reasonable for it to
export significant amounts in light of the high dum ping margin and consequent deposit rate on sales
to the United States market. Mexico also asserts that USDOC ignored evidence that the reason for the
original dumping finding was the Mexican currency crisis of 1994, and the application of facts
available. The Mexican exporters argued that th e combination of circumstances in the original
investigation had changed, and was not likely to recur, and thus there was no likelihood of
continuation or recurrence of dumping. In this re gard, Mexico also argues that USDOC ignored the
fact that zero dumping margins had been cal culated for TAMSA in the second and third
administrative reviews, indicating that continuation or recurrence of dumping was not likely. Mexico
also asserts that USDOC ignored evidence submitted by Hylsa allegedly demonstrating that it was not
dumping and was not likely to dump in the future.
7.76 We have reviewed the USDOC decision memora ndum to establish whether, in fact, USDOC
ignored the evidence referred to by Mexico, or whether, as the United States contends, USDOC
considered all the evidence, but simply reached di fferent conclusions than those sought by Mexican
exporters. While USDOC's decision memorandum is not a model of thoroughness in its discussion of
the evidence presented, it seems clear to us that USDOC did address some evidence presented to it.
Thus, for instance, USDOC specifically addressed TAMSA's explanation for the decline in import
volumes:
The premise that the decline in TAMSA's e xport levels after the issuance of the order
was the result of a prudent and necessary business strategy, and the fact that TAMSA
was able to sell small amounts of OCTG without dumping in no way conflict with the
Department's inference. If it became 'prude nt and necessary' to make fewer sales at a
more fairly traded priced while the di scipline of the order was in place, it is
reasonable to infer that dumping would be likely to resume if such disciplines ceased
to exist and it was no longer 'necessary' for TAMSA and other Mexican exporter to
maintain the same business strategy.
90
Similarly, USDOC addressed arguments by Hylsa that a separate finding should be made for it, and
that the consideration of declining import volumes should have referred to volumes prior to initiation
and after imposition of the order, rather than volumes before and after imposition of the order.91

7.77 However, information was presented to USDOC by TAMSA concerning its financial
situation and the stability of the Mexican peso wh ich would appear relevant to the question of
likelihood of continuation or recurrence of dumping. In the original investigation, USDOC had relied
on a constructed normal value in calculating a dumpi ng margin for TAMSA, relying in part on facts
available. TAMSA asserted that its large dollar-denom inated debt, together wi th the significant peso

89 Our view in this regard is supported by the findings of the Appellate Body in US – Corrosion-
Resistant Steel Sunset Review, supra note 37, paras. 111-115.
90 USDOC Decision Memorandum (Exhibit MEX-19) page 4.
91 USDOC Decision Memorandum (Exhibit MEX-19) p. 4.

devaluation during the Mexican currency crisis, co mbined to dramatically increase the cost of
production component of the constructed normal va lue, resulting in sales not being used for
comparison purposes as being at less than the cost of production, and a con sequently high dumping
margin. TAMSA argued in its response to the initiati on of the sunset review, however, that the facts
demonstrated that TAMSA had much less debt, and therefore could not experience the type of foreign
exchange losses that had affected the original calculations, and the Mexican peso had stabilized, such
that large devaluations such as happened at the tim e of the original investigation were unlikely.
TAMSA argued that these facts, comb ined with the fact that it had been found not to be dumping in
(at the time the sunset review was initiated) two successive administrative reviews, demonstrated that
dumping was not likely to occur if the order were revoked as to it. 92
7.78 It is clear that USDOC made its determinati on of likelihood of continuation or recurrence of
dumping exclusively on the basis of a decline in import volumes, and did not rely on information
concerning historical dumping margins, including the information on dumping margins calculated in
administrative reviews during the period the measure was in place. Nor did USDOC otherwise
consider any evidence relating to the amount of dumping originally found, the basis of that
calculation, or whether changes in the underlying fi nancial situation might affect the question of
likelihood of continuation or recurre nce of dumping. Indeed, the United States has stated as much in
its submission in this dispute: "Commerce based its affirmative likelihood determination solely on the
depressed state of import volumes for OCTG from Mexico."
93 There is no indication on the face of
the decision memorandum that USDOC considered any of the information or arguments presented
concerning changes in TAMSA's financial situati on and overall economic cond itions in Mexico. We
stress that we express no opinion as to the outcome of such consideration. Our decision is based on
the failure to consider potentially relevant evidence, which is not consistent with the obligation to
make a reasoned analysis on the basis of relevant fa cts, and not on any views as to the result in this
case.
7.79 The United States argues that the inference th at dumping would continue or recur based on
declines in import volumes following the imposition of the anti-dumping order is "an exercise in
logic."94 We do not dispute that an investigating authority may draw inferences in support of its
conclusions, through the exercise of logic, b ased on the evidence presented. However, where
information is presented that suggests that the inference is not appropriate in a particular case, then the
investigating authority is obligated, under Article 11.3, to at least consider that information and take it
into account before making its determination. In our view, information regarding changes in the
financial circumstances of a company previously found to have been dumping, and changes in the
overall economic situation of the exporting country, would appear to be relevant to whether the
inference relied upon by USDOC is reasonable. This is particularly true where, as here, intervening
reviews had resulted in findings of zero dumping margin s. Thus, in our view, consideration of such
evidence is necessary in order to satisfy the require ments of Article 11.3. USDOC did not do so in
this case.
7.80 We therefore conclude that the sunset dete rmination at issue is not consistent with
Article 11.3 of the AD Agreement because USDOC's determination that dumping is likely to continue
or recur is not supported by reasoned and adequate conclusions based on the facts before it.
7.81 Given our determination, we do not consider it either necessary or appropriate to address
Mexico's claims regarding Article 2. We would note that, in any event, as it is clear that USDOC did
not rely on historical dumping margins in this case, but solely on import volumes, we would not have

92 Exhibit MEX-16, at 5.
93 US first submission, para. 132.
94 Ibid., para. 123.

made any findings concerning Article 2 even if we had reached a different conclusion on the
adequacy of USDOC's consideration of the evidence.
7.82 The Appellate Body in US – Corrosion-Resistant Steel Sunset Review stated that the
investigating authorities did not have to "calculate or rely on dumping margins in determining the
likelihood of continuation or recurrence of dump ing. However, should investigating authorities
choose to rely upon dumping margins in making thei r likelihood determination, the calculation of
these margins must conform to the disciplines of Article 2.4"
95 In a case such as this one, where the
United States acknowledges that USDOC explicitly re lied solely on import volumes in making its
determination, we consider that there can be no b asis for a finding of violation of Article 2 of the
AD Agreement.
7.83 Finally, with respect to Mexico's claims c oncerning the margin of dumping reported to the
USITC as the margin likely to prevail, we recall th at, as discussed above, USDOC did not rely on this
margin in making its determinati on of likelihood of continuation or recurrence of dumping. We can
find no provision of the AD Agreement, and Mexico has cited none, that requires such "reporting" of
a margin likely to prevail – this appears to be an element of US law that is not derived from any
element of the AD Agreement. Therefore, we do not consider it either necessary or appropriate to
address Mexico's claims under Articles 2 and 6 of the AD Agreement regarding the margin of
dumping reported to the USITC.
C. A
LLEGED INCONSISTENCY OF US LAW REGARDING THE DETERMINATION OF LIKELIHOOD OF
CONTINUATION OR RECURRENCE OF INJURY, AS SUCH AND AS APPLIED
1. Arguments of Mexico
7.84 Mexico asserts that the standard applied by the USITC, set forth in 19 U.S.C. § 1675a(a)(1),
for determining whether termination of the anti-dumping duty order is "likely" to lead to continuation
or recurrence of injury is inconsistent, as such, with Articles 11.1 and 11.3 of the AD Agreement.
7.85 Mexico further argues that, in the sunset review at issue, the USITC applied this inconsistent
standard, instead of the proper "likely" standard set out in Article 11.3. Mexico considers that since
the USITC did not apply the proper "likely" standard in this sunset review, it also failed to carry out
an objective examination, thereby acting inconsis tently with Articles 11.3, 3.1 and 3.2 of the
AD Agreement. In addition, Mexico argues that the USITC failed to base its determination of
likelihood of continuation or recurrence of inju ry on positive evidence, inconsistently with
Articles 11.3, 3.1 and 3.2 of the AD Agreement. Me xico asserts, in general, that the provisions of
Article 3 apply in sunset reviews. Mexico subm its that the USITC violated Article 3.4 of the
AD Agreement by failing to address some of the fifteen injury factors listed therein. Finally, Mexico
asserts that the USITC failed to analyse the cau sal link between likely dum ped imports and likely
injury, as Mexico contends is required by Article 3.5 of the AD Agreement, by failing to inquire
whether there would be other factors that would al so affect the domestic industry in the event of
revocation of the anti-dumping duty.
7.86 Mexico also claims, in conjunction with its ot her claims, that the USITC's determination is
inconsistent with Article 3.3 of the AD Agreement. Mexico submits that by undertaking a cumulative
assessment, the USITC acted inconsistently with Articles 11.3 and 3.3 of the AD Agreement.
Assuming that Articles 11.3 and 3.3 do not preclude cumulative assessment in sunset reviews, Mexico
submits that Article 3.3 establishes the conditions in which a cumulative assessment is permitted, and
that those conditions were not satisfied in this case, resulting in a violation of Article 3.3.

95 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, supra note 37, para. 127.

7.87 Finally, Mexico asserts that 19 U.S.C. §§ 1675a(a)(1) and (5), which establish a time-frame
for the USITC's consideration of whether injury is lik ely to continue or recur, are inconsistent with
Articles 11.1, 11.3, and 3 of the AD Agreement, both as such, and as applied in this case.
2. Arguments of the United States
7.88 The United States argues that US law governing the standard for USITC determinations of
likelihood of continuation or recurrence of injury in sunset reviews is consistent with Article 11.3 of
the AD Agreement. The United States submits that in the instant sunset re view the USITC applied
the standard provided for under Article 11.3, i.e., the "likely" standard.
7.89 Generally, the United States asserts that the USITC's establishment of the facts was proper,
and its evaluation of those facts was unbiased an d objective. The United States maintains that
Article 3 does not apply to sunset reviews, although some of the provisions of Article 3 may provide
guidance as to the type of information that may be re levant to the consideration of whether injury is
likely to continue or recur.
7.90 With regard to the claim concerning cumulative assessment, the United States maintains that
the AD Agreement does not prohibit cumulative assessme nt in sunset reviews. The United States
notes that Article 11.3 of the AD Agreement does no t mention cumulation, and that cumulation was a
widespread practice before the AD Agreement was adopted, suggesting that unless it is specifically
prohibited by the AD Agreement, it is permitted . Moreover, the United States contends that
Article 3.3 does not apply in sunset reviews generally, as it is limited, by its terms, to investigations.
7.91 Finally, the United States asserts that Article 11.3 does not specify a time-frame for the
determination of whether injury is likely to conti nue or recur, and that therefore the US statutory
provisions in this respect are not inconsistent with any obligations in the AD Agreement.
In particular, the United States considers that Artic les 3.7 and 3.8, which Mexico relies on in this
regard, only apply to original determinations of threat of material injury, and not to determinations in
sunset reviews.
3. Findings
(a) Introduction
7.92 The USITC's determination in the OCTG s unset review concerned five countries,
i.e., Argentina, Italy, Japan, Korea and Mexico. Th e USITC carried out a cumulative analysis with
respect to these five countries. 96 The USITC determined that material injury would be likely to
continue or recur if the order on OCTG from Argen tina, Italy, Japan, Korea and Mexico were to be
revoked.97 This same determination was challenged by Argentina in the US – Oil Country Tubular
Goods Sunset Reviews dispute. While the claims and argumen ts of Mexico in this dispute are not
identical to those of Argentina in the earlier dispute, there are strong similarities. We have therefore
carefully considered the reports of the Panel and of the Appellate Body in the US – Oil Country
Tubular Goods Sunset Reviews dispute, but have, of course, made our own determinations in
resolving Mexico's claims.
(b) Challenges to US law "as such"
7.93 Mexico raises two "as such" claims with respect to US law governing the USITC
determination of likelihood of conti nuation or recurrence of injury. The first asserts that the standard

96 USITC Sunset Determination, supra note 4, (Exhibit MEX-20) p. 14.
97 Ibid., pp. 16-17.

of "likelihood" in US law, as interpreted by the US ITC, is inconsistent with Article 11.3. The second
asserts that the provisions of US law establishing a time-frame for the determination in a sunset
review are inconsistent with Articles 11.1, 11.3, and 3 of the AD Agreement.
7.94 Turning to the first of these, we note that 19 U.S.C. § 1675a(a)(1) reads, in relevant part:
In general
...The Commission shall determine whether revo cation of an order, or termination of
a suspended investigation, would be likely to lead to continuation or recurrence of
material injury within a reasonably foreseeable time ...
98
In the instant case, the USITC final determination states, in pertinent part:
Based on the record in these five-year reviews, we determine under section 751(c) of
the Tariff Act of 1930, as amended ('the Ac t'), that revocation of the anti-dumping
duty orders on Oil Country Tubular Goods ('OCTG') othe r than drill pipe ('casing an
tubing') from Argentina, Italy, Japan, Korea, and Mexico and of the countervailing
duty order on casing and tubing from Italy woul d be likely to lead to continuation or
recurrence of material injury to an indus try in the United States within a reasonably
foreseeable time.
99
7.95 Thus, as Mexico acknowledges, 100 on its face, both the statute, and the USITC's
determination, refer to the proper standard as set out in Article 11.3.
7.96 However, Mexico argues that despite this, the USITC in fact interpreted the likely standard
inconsistently with the AD Agreem ent, and relied on that inconsistent interpretation in this case.
Mexico notes that the Appellate Body ruled, in US – Corrosion-Resistant Steel Sunset Review, that the
ordinary meaning of "likely" as used in Article 11.3 is "probable", 101 and asserts that the USITC
wrongly interpreted "likely" to mean "possible", thus necessarily applying an inconsistent standard in
making its determination. In supp ort of its view, Mexico points to statements made on behalf of the
USITC in other fora, and in NAFTA litigation involvi ng the determination at issue in this dispute,
which Mexico asserts demonstrate the inconsistent in terpretation of "likely" relied on by the USITC.
The United States maintains that si nce these statements were made , the US courts resolved the
interpretative question, concluding that "likely" was synonymous with "probable". Therefore, the
United States argues, the determination in dispute is consistent with the "likely" standard in
Article 11.3.
7.97 We do not consider statements ma de on behalf of the USITC in other fora or in litigation to
be relevant to our assessment whether the sta ndard of likelihood applied by the USITC was
consistent, as such, with Article 11.3.
102 On its face, the USITC determination refers to the proper
standard. While there may have been some questions as to the interpretation of the standard by the
USITC, it seems clear that this question has been resolved in the US courts. The United States has
represented that it

98 Exhibit MEX-24.
99 USITC Sunset Determination, supra note 4, (Exhibit MEX-20 at 1).
101 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, supra note 37, para. 111
102 We note that the Appellate Body has stated that it was "not unreasonable" for the Panel in US – Oil
Country Tubular Goods Sunset Reviews , to reach the same conclusi on. Appellate Body Report, US – Oil
Country Tubular Goods Sunset Reviews, supra note 39, para.312.

agrees that the term 'likely' as used in Artic le 11.3 can be equated with 'probable' in
the manner that the US courts understand the meaning of 'probable' and as 'probable'
has been explained by the Appellate Body.
103
7.98 In this circumstance, even assuming Mexico were correct that there was some difference in
views as to the meaning of "likely", we cannot look behind the standard which the USITC clearly
stated that it was applying in its determination and assess in the abstract whether it applied the correct
legal standard of likelihood. In our view, the only way for a reviewing panel to assess whether, in
fact, the proper standard was applied is to evaluate the determination actually made in light of that
standard.104 If, following that evaluation, we conclude that the USITC determination is consistent
with Article 11.3 and the "likely" standard, then, in our view, whatever statements may have been
made are irrelevant. If on the other hand, we conclude following our evaluation that the USITC
determination is inconsistent with Article 11.3 and the "likely" sta ndard, it will not be because of the
perceptions or understanding of the USITC or indivi dual Commissioners in the abstract, but rather
because the determination actually made could not have been made if the proper standard had been
applied. We address that question further below.
7.99 We next address Mexico's claim concerning th e time-frame for USITC determinations in
US law. 19 U.S.C. § 1675a(a)(5) provides, in relevant part:
(5) Basis for determination
The presence or absence of any factor whic h the Commission is required to consider
under this subsection shall not necessarily give decisive guidance with respect to the
Commission's determination of whether material injury is likely to continue or recur
within a reasonably foreseeable time if the order is revoked or the suspended
investigation is terminated. In making that determination, the Commission shall
consider that the effects of revocation or termination may not be imminent, but may
manifest themselves only over a longer period of time.
105 (emphasis added)
With reference to this provision the SAA provides:
A 'reasonably foreseeable time' will vary from case-to-case , but normally will
exceed the 'imminent' timeframe applicable in a threat of injury analysis. New
Section 752(a)(5) expressly states that the effects of revocation or termination may
manifest themselves only over a longer period of time. The Commission will
consider in this regard such factors as the fungibility or differentiation within the
product in question, the level of substituta bility between the imported and domestic
products, the channels of distribution used, the methods of contracting (such as spot
sales or long-term contracts), and lead times for delivery of goods, as well as other
factors that may only manifest themselves in the longer term , such as planned
investment and the shifting of production facilities.
106 (emphasis added)
7.100 Thus, US law establishes a time-frame for the USITC's determination of whether revocation
of the duty would be likely to lead to the conti nuation or recurrence of injury within a reasonably

103 US first submission at para. 225, citing Appellate Body Report, US – Corrosion Resistant Steel
104 We note that the Appellate Body has agreed with the very similar statement that "the only way for
the Panel to assess whether [the "likely"] standard wa s in fact applied was to evaluate whether the facts
supported that finding". Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , supra note
39, para. 311.
105 Exhibit MEX-24.
106 SAA (Exhibit MEX-26) 4211.

foreseeable time. Read together, the statute and th e SAA establish that this time frame will vary from
case-to-case, but may clearly be longer than "imminent".
7.101 Mexico argues that, under Article 11.3, the time -frame within which revocation of the order
would lead to continuation or recurrence of injury must be "as curtailed as possible", and indeed, the
determination should be based upon a finding of likely injury upon expiry of the order.
107 Thus,
Mexico maintains that US law is inconsistent by allowing a longer time-frame for the determination
than is consistent with Article 11.3. In additi on, Mexico points to the provisions of Articles 3.7
and 3.8, which relate to determinations of threat of material injury, and argues that these provisions
apply to "prospective injury determinations" 108, and that by allowing for a longer period of time than
those provisions, US law is inconsistent with Article s 3.7 and 3.8. Finally, Mexico argues that this
allegedly inconsistent time-frame is inconsistent with the "likely" sta ndard of Article 11.3, and allows
for determinations of likelihood of continuation or recurrence of injury not based on an objective
evaluation of positive evidence, inconsistently with Articles 3.1, 3.2, and 3.4 of the AD Agreement.
7.102 The United States argues that Article 11.3 does not specify a time-frame for sunset inquiries.
Moreover, the United States asserts that Article 11.3, by referring to a determination whether
revocation "would be likely to lead to continuation or recurrence of injury" contemplates some period
of time between the revocation a nd continuation or recurrence of injury. The United States maintains
that in the absence of any specification in the AD Agreement, Members remain free to establish a
relevant time frame in domestic law, and the time -frame in the US law is inherently reasonable.
Finally, the United States argues that Article 3 does not apply to sunset revi ews, and in particular,
Articles 3.7 and 3.8 pertain to threat of injury dete rminations in original in vestigations, but not to
sunset reviews.
7.103 It is clear to us that Article 11.3 does not establish any rules regarding the time-frame for a
determination concerning likelihood of continuation or recurrence of in jury. In particular, the text
does not set out a requirement that the investiga ting authorities specify when injury is likely to
continue or recur. Article 11.3 simply requires th at the investigating authorities make a determination
whether injury is likely to continue or recur shoul d the duty be revoked. Of course, as the Appellate
Body has stated, that determination must have a sufficient factual basis and be supported by
reasoning.109 However, we disagree with Mexico th at the time-frame for that determination
established by US law is, as such, inconsistent with Article 11.3. A determination based on that time-
frame might be found to be inconsistent, if it is found to be based on inadequate evidentiary grounds
or unreasonable, a question we address below. However, merely that US law establishes a standard of
"a reasonably foreseeable time" for such determin ations does not demonstrate inconsistency with
Article 11.3 of the AD Agreement.110
7.104 Moreover, we agree with the view of the Un ited States that Article 11.3 does not require a
finding that injury is likely upon expiry of an anti- dumping order. Such an interpretation would run
counter to the notion of likelihood that injury will r ecur, which implies that there is no injury at the
time the order is terminated, but will recur. It seems to us unreasonable to conclude that such
recurrence must be immediate – rather, it is in our view more appropriate to understand that there may
be some time between expiry of an order and likel y recurrence of injury. Certainly, upon revocation
of any anti-dumping order, some time might be exp ected to pass before expor ters or importers could

109 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , supra note 37, paras. 114-
115.
110 We note that the Appellate Body reached the same conclusion in US – Oil Country Tubular Goods
Sunset Reviews . Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , supra note 39,
para. 359.

book orders and ship product into the importing mark et, and some additional time might be expected
to pass before the effects of such imports might be felt by the domestic industry. Thus, we conclude
that 19 U.S.C. 1675a(a)(1) and (5), governing the time-frame in which the USITC must consider
whether injury is likely to continue or recur, are not inconsistent Article 11.3.
7.105 Mexico also contends that 19 U.S.C. 1675a(a)(1 ) and (5) are inconsistent with Articles 3.7
and 3.8 of the Agreement. As discussed below, the nature of the determinations at issue under
Articles 3.7 and 3.8 on the one hand, and Article 11.3 on the other, are different, and are properly
understood to entail different substantive elements.
7.106 Article 3 of the AD Agreement is entitled "Determi nation of Injury". Footnote 9 to Article 3
defines three types of injury – material injury to a domestic industry, threat of material injury to a
domestic industry, and material reta rdation of the establishment of a domestic industry. Articles 3.7
and 3.8 of the AD Agreement specifically relate to determinations of threat of material injury. 111
Article 11 is entitled "Duration a nd Review of Anti-Dumping Duties and Price Undertakings".
Article 11.3 specifically relates to, inter alia , the determination of likelihood of continuation or
recurrence of injury. As we discuss in more detail below, at paragraphs 7.115 - 7.118, the
determinations under Article 3, a nd under Article 11.3 are substantiv ely different from one another.
As the Appellate Body observed in US – Corrosion-Resistant Steel Sunset Review , investigations and
reviews are two distinct processes with different purposes. 112 It is therefore, in our view, entirely
reasonable that these two distinct processes with di fferent purposes are subject to different rules in
certain respects. Nothing in Mexico's argume nts persuades us that Articles 3.7 and 3.8 are
exceptional in this regard, such that they should be found to be directly applicable in sunset reviews.
There is certainly nothing in the text of those provisions, or in Article 11.3, that would establish any
such requirement – and indeed, Mexico has not asserted otherwise.
7.107 While it might be argued that the analysis of threat of injury in an original anti-dumping
investigation and the analysis of likelihood of continuation or recu rrence of injury determination in a
sunset review are similar, in that they both requi re prospective analysis, this is not sufficient to
persuade us of the conclusion sought by Mexico, th at the specific requirements of Articles 3.7 and 3.8
apply to sunset reviews. Indeed, in our view, there are important differences in fact between a
determination of threat of material injury and a determin ation that injury is likely to continue or recur.
The former determination presumes a conclusion that there is not material injury at the time of the
finding of threat of material injury. It seems logical to us that, in order to justify imposition of an
anti-dumping measure in such circumstances, Memb ers would have agreed that the change in
circumstances to a situation of material injury must be imminent, and therefore specified a time-frame
in the AD Agreement. The same considerati ons do not necessarily apply in the context of a
determination of likelihood of c ontinuation or recurrence of dumping, where the observed facts are
affected by the existence of the anti-dumping measu re, and it is not necessarily the case that there is
no injury at the time of the determination. Therefore, in our view, it is clear that the temporal
elements of Articles 3.7 and 3.8 are not directly applicable in sunset reviews.
 113

111 Other provisions of Article 3 are also relevant to determinations of threat of material injury, see
Panel Report, Mexico – Anti-Dumping Investiga tion of High Fructose Corn Syrup (HFCS) from the
United States ("Mexico – Corn Syrup "), WT/DS132/R and Corr.1, adopted 24 February 2000,
DSR 2000:III, 1345, but they are not at issue here.
112 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, supra note 37, paras. 106-
107.
113 We note that the Appellate Body in US – Oil Country Tubular Goods Sunset Reviews, reached
substantially the same conclusion. Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews,
supra note 39, para. 358.

7.108 On the basis of the above considerations, we find that 19 U.S.C. §§ 1675a(a)(1) and (5) are
not inconsistent with Articles 3.1, 3.2, 3.4, 3.7, 3.8, 11.1, and 11.3 of the AD Agreement.
114115
(c) Challenges to US law "as applied"
(i) Time-frame
7.109 Mexico submits that the application of 19 U.S. C. §§ 1675a(a)(1) and (5) in the instant sunset
review was inconsistent with Ar ticles 11.3 and 3 of the Agreement. According to Mexico, the
USITC's determination does not indicate what time period it considered to be a "reasonably
foreseeable time" in making its determination in th e instant sunset review. The United States argues
that because Article 11.3 is silent as to the time-fr ame relevant to sunset reviews and thus imposes no
obligations in this regard, the USITC's determina tion cannot be inconsistent with Articles 3 and 11.3
of the AD Agreement merely because it does not specify the time-frame on which it was based.
7.110 We recall our finding that the US statutory prov isions relating to the time-frame on the basis
of which the USITC makes its likelihood determinati ons in sunset reviews are not inconsistent with
Articles 11.1, 11.3, and 3 of the AD Agreement. Th erefore, it follows that their application in the
sunset review at issue is not necessarily inconsistent with Articles 11.3 and 3 of the AD Agreement.
7.111 Mexico argues that even assuming the US statutory provisions were consistent with the
AD Agreement, the USITC failed to apply these provi sions to the evidence be fore it in the instant
sunset review and failed to analyze any of the f actors relevant to defining the time it considered
reasonably foreseeable. At most, Mexico's argument might imply that the USITC failed to comply
with US law in this regard. In light of our conc lusion that Article 11.3 does not require investigating
authorities to specify the time-frame on which the determination of likeli hood of continuation or
recurrence of injury is based, we see no inconsis tency with the AD Agreement in the fact that the
USITC did not specifically identify the time-frame it considered in making its determination in this
case.
 In comments received after the issu ance of the Appellate Body Report in US – Oil Country
Tubular Goods Sunset Reviews, Mexico notes that the Appellate Body agreed with the Panel in that
case, that "an assessment regarding whether injury is likely to recur that focuses 'too far in the future
would be highly speculative.'" 116 Mexico goes on to argue that "the only way to assess whether the
law has been applied in a WTO-consistent way (i .e., whether the injury assessment has not focused
too far in the future) is by knowing the tim e frame used by the Commission in its assessment
regarding likelihood of injury". We have alread y found that there is no obligation on the USITC to
identify the time-frame it considered in making its de termination. Now, to the extent that Mexico
seems to imply that this time-frame was "too far in the future", we note that Mexico never made this
argument in its submissions and therefore it is not necessary for us to make a finding on this question.
7.112 In light of the above considerations, we conc lude that 19 U.S.C. §§ 1675a(a)(1) and (5) were
not applied inconsistently with Articles 11.3 a nd 3 of the AD Agreement in the OCTG sunset
review.117

114 We note that, while Mexico clai med that 19 U.S.C. §§ 1675a(a)(1) and (5) violated Articles 11.1,
3.1, 3.2, and 3.4 of the AD Agreement, it did not el aborate on these claims or make specific arguments
regarding them. Therefore, we have not discussed these provisions in our analysis.
115 We note that this is the conclusion reached on this same question by the Panel in US – Oil Country
Tubular Goods Sunset Reviews, supra note 39.
116 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, supra note 39, para. 360.
117 We note that this is the conclusion reached on this same question by the Panel in US – Oil Country
Tubular Goods Sunset Reviews, supra note 39.

(ii) Alleged violations of Articles 3.1, 3.2 and 11.3 of the AD Agreement in the determination of
likelihood of continuation or recurrence of injury
7.113 Mexico submits that the USITC failed to apply the "likely" standard of Article 11.3 in the
sunset review at issue. Mexico argues that in this sunset review, the USITC applied a "possibility"
standard instead of the proper likel y standard of Article 11.3, thus determining that injury would be
likely to continue or recur on the basis of facts that demonstrated that a certain outcome was possible,
rather than probable. Mexico also argues that th e USITC failed to carry out an objective examination
on the basis of positive evidence with respect to the volume, price effects, and impact of imports, as
required by Articles 3.1 and 3.2 of the AD Agreement, failed to address all the injury factors set out in
Article 3.4, failed to comply with the require ments of Article 3.5 regarding causal link and non-
attribution of injury caused by other factors, and act ed inconsistently with Articles 3.7 and 3.8. The
United States submits that in the instant sunset review the USITC applied the "likely" standard
provided for under Article 11.3. The United States generally argues that the specific provisions of
Article 3 – including Article 3.1 – do not apply to sunset reviews. The United States nevertheless
submits that the USITC's determination was based on an objective evaluation of positive evidence,
and was not otherwise inconsistent with the requirements of the AD Agreement.
7.114 Mexico's claims with regard to the USITC's determination in dispute are almost entirely
premised on the provisions of Article 3 of the AD Ag reement, either independently, or in conjunction
with Article 11.3. In this regard, Mexico relies mainly on the provisions of footnote 9 to Article 3,
which defines "injury". The United States, on the other hand, maintains that the provisions of
Article 3 are not directly applicable in sunset review s, because the nature of the inquiry is different in
original anti-dumping investigations under Article 3, and sunset reviews under Article 11.3. In the
US view, Article 3 applies to the determination of "injury" in an original anti-dumping investigation,
but does not apply to the determination of the "like lihood of continuation or recurrence of injury" in a
sunset review. We begin our evaluation by addr essing this central question of the relation between
Articles 3 and 11 of the AD Agreement.
7.115 Neither Article 11.3, nor any other paragraph of Article 11, specifically addresses whether the
provisions of Article 3 in general, or specific paragr aphs thereof, apply to sunset reviews. Nor does
any provision of Article 3 contain any references to sunset reviews or Article 11 in general. Some
elements of the text of Article 3 do suggest that it has broad application in anti-dumping cases. Thus,
the reference in Article 3.1 to "A determination of injury for purposes of Article VI of GATT 1994"
and footnote 9, which introduces the meaning of th e term "injury" with the phrase "[u]nder this
Agreement" both suggest that the concept of inju ry should be understood in the manner set out in
Article 3 throughout the Agreement. However, in our view, this is not sufficient to lead to the
conclusion that the specific requirements of Article 3 apply directly to the de termination of likelihood
of continuation or recurrence of injury under Article 11.3.
7.116 In this regard, we note in particular that the nature of the inquiries in investigations and sunset
reviews is significantly different. Regarding the differences between original investigations and
sunset reviews, Appellate Body in US – Corrosion-Resistant Steel Sunset Review observed:
In considering the nature of a likelihood determination in a sunset review under
Article 11.3, we recall our statement in US – Carbon Steel, in the context of the SCM
Agreement, that:
… original investigations and sunset reviews are distinct processes
with different purposes. The nature of the determination to be made
in a sunset review differs in certain essential respects from the nature
of the determination to be made in an original investigation.116

This observation applies also to original investigations and sunset reviews under the
Anti-Dumping Agreement. In an original anti-dumping investigation, investigating
authorities must determine whether dumping exists during the period of investigation.
In contrast, in a sunset review of an anti-dumping duty, investigating authorities must
determine whether the expiry of the duty th at was imposed at the conclusion of an
original investigation would be likely to lead to continuation or recurrence of
dumping.
116Appellate Body Report, US – Carbon Steel, para. 106.118
7.117 Although the Appellate Body was discussing the di fferences between original investigations
and sunset reviews with respect to the question of dumping, we consider that its reasoning applies
with equal force to the question of injury. A determination of injury in an original investigation is a
conclusion regarding the situation of the industry du ring the period investigated, based on historical
facts. A determination of likelihood of continua tion or recurrence of injury in a sunset review,
however, is a conclusion regarding the likely situation of the industry in the future, following
revocation of an anti-dumping measure that has been in place for five years. While such a
determination must, as the Appellate Body has stat ed, rest upon an adequate factual basis and be
supported by reasoning, there is, in our view, no doubt that the determinations are different in kind,
and that consequently, requirements relevant to a determination of injury are not necessarily relevant
to a determination of continuation or recurrence of injury. We note that the Appellate Body has stated
that an investigating authority is not required to make a dumping determination in a sunset review. 119
Similarly, we consider that an i nvestigating authority is not required to make an injury determination
in a sunset review. 120 It follows, then, that the obligations set out in Article 3 are not directly
applicable in sunset reviews.121
7.118 Our conclusion on this issue is the same as that reached by the Appellate Body in US – Oil
Country Tubular Goods Sunset Reviews. In that report the Appellate Body noted that:
[T]he Anti-Dumping Agreement distinguishes between 'determination[s] of injury',
addressed in Article 3, and determinations of likelihood of 'continuation or recurrence
... of injury', addressed in Article 11.3. In addition, Article 11.3 does not contain any
cross-reference to Article 3 to the effect that, in making the likelihood-of-injury
determination, all the provisions of Artic le 3—or any particular provisions of
Article 3— must be followed by investigating authorities. Nor does any provision of
Article 3 indicate that, wherever the term 'injury' appears in the Anti-Dumping
Agreement, a determination of injury must be made following the provisions of
Article 3.
122 (emphasis in the original)
Subsequently the Appellate Body went on to find, as we have done in this case, that:

118 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , supra note 37, paras. 106-
107.
119 Ibid., para. 123.
120 We note that this is the conclusion reached on this same question by the Panel in US – Oil Country
Tubular Goods Sunset Reviews, supra note 39.
121 If, however, an investigating authority were to make an injury determination in a sunset review,
such a determination would be subject to the requirements of Article 3. See Appellate Body Report, US –
Corrosion-Resistant Steel Sunset Review, supra note 37, paras. 126-130.
122 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, supra note 39, para. 278.

Given the absence of textual cross-referenc es, and given the different nature and
purpose of these two determinations, we are of the view that, for the 'review' of a
determination of injury that has already been established in accordance with Article 3,
Article 11.3 does not require that injury again be determined in accordance with
Article 3. We therefore conclude th at investigating authorities are not mandated to
follow the provisions of Article 3 when making a likelihood-of-injury
determination.123 (emphasis in the original)
7.119 However, our finding regarding applicability of the obligations in Article 3 to sunset reviews,
does not mean that Article 3 is irrelevant to our evaluation of the USITC's determinations in this
dispute. While Article 3 is entitled "Determination of Injury", and sets out various elements to be
considered in the analysis of ev idence underlying such a determination, footnote 9 to Article 3 does
establish the meaning of the term injury for the entire AD Agreement. Thus, in our view, throughout
the Agreement – including sunset reviews – the term injury should be understood and interpreted as
set out in footnote 9.
124 The provisions of Article 3 governing the determination of injury thus may
provide useful guidance in the context of the analysis in sunset reviews, and we will be mindful of this
in our evaluation.125
7.120 Turning then to Mexico's specific claims regarding the USITC determination at issue here, we
note first that, as discussed above, Mexico contends that the USITC did not apply the "likely"
standard set out in Article 11.3 in making its determination. Mexico points to the USITC's analysis of
the volume, price effects, and impact on the domes tic industry in support of its position, asserting its
findings rested on possible outcomes, rather than lik ely, or probable, outcomes. Mexico also argues
that the USITC did not base its determination on sufficient positive eviden ce because it considered
evidence from the original investigation, and th at the USITC did not undertake an objective
examination of the evidence it did consider.
7.121 Mexico's claims are made under Articles 3.1 and 3.2 of the AD Agreement, and Article 11.3.
To the extent that Mexico is asserting claims di rectly under Articles 3.1 and 3.2, these claims would
be cognizable only if the USITC had made a determina tion of injury in this case. However, it is clear
from the face of the USITC's determination that it made a determination re garding the likelihood of
continuation or recurrence of injury, rather than a determination of injury. 126 Indeed, Mexico does not
argue otherwise. Thus, we make no findings regarding Mexico's claims under Articles 3.1 and 3.2.
7.122 However, the crux of Mexico's arguments is that the USITC either did not establish facts
properly or did not evaluate them objectively or did not base them on a sufficient factual basis. The
USITC's conclusion that there was a likelihood of c ontinuation or recurrence of injury was based on
its consideration of the likely volume, price effe cts, and impact of imports We must therefore
consider these aspects of the USITC determination unde r the standard of review applicable in this
dispute. If we find that the USITC's establishment of facts was proper and its evaluation of those
facts was unbiased and objective, we will find no viola tion of Article 11.3, even if we might have
reached a different conclusion on the basis of the same facts.
Likely volume of imports

123 Ibid., para. 280.
124 We note the similar conclusion of the Appellate Body in US – Corrosion-Resistant Steel Sunset
Review regarding the definition of dumping set out in Article 2.1 of the Agreement. Appellate Body Report,
US – Corrosion-Resistant Steel Sunset Review, supra note 37, para. 126.
125 We note that this is the conclusion reached on this same question by the Panel in US – Oil Country
Tubular Goods Sunset Reviews, supra note 39.
126 See, for instance, pages 1, 16 and 33 of th e USITC Sunset Determination (Exhibit MEX-20), supra
note 4.

7.123 The USITC's determination sets out a detaile d discussion regarding the likely volume of
imports, starting with a description of the relevant findings in the original investigation, and then
addressing the evidence relevant to the period of application of the measure. The USITC
acknowledged that the foreign producers' capacity utilization rates were high, but concluded that these
producers had incentives to devote more of their productive capacity from other types of tubular
products to casing and tubing
127, and could do so because these two groups of products are produced
on the same production lines with the same machiner y. The USITC set out five reasons for this
conclusion, and determined that the likely volume of dumped imports would be significant, both in
absolute terms and relative to the US market, in the absence of the anti-dumping duty. Mexico take
issue with the USITC's conclusion, challenging each of the reasons cited in support of that conclusion.
Mexico argues that the USITC based its findings on speculation, rather th an positive evidence, and
disregarded positive evidence supporting the opposite c onclusion. Therefore, the issue we must
address is whether the USITC's determination that foreign producers could shift productive capacity
from other pipe and tube products to casing and tubing, and had incentives to do so in order to ship to
the US market, which would lead to likely incr eases in import volumes had a sufficient basis of
positive evidence.
7.124 The USITC determination reads, in pertinent part:
The recent *** capacity utilization rates repr esent a potentially important constraint
on the ability of these subject producers to increase shipments of casing and tubing to
the United States. Nevertheless, the r ecord indicates that these producers have
incentives to devote more of their productive capacity to producing and shipping
more casing and tubing to the US market.
First, Tenaris is the dominant supplier of OCTG products and related services to all of
the world's major oil and gas drilling regions except the Untied States. Tenaris states
that it is the only entity that can serve o il and gas companies on a global basis, and
that it seeks worldwide contracts with such companies. Many of Tenaris existing
customers are global oil and gas companies with operations in the United States.
While the Tenaris companies seek to downplay the importance of the US market
relative to the rest of the world, they ac knowledge that it is the largest market for
seamless casing and tubing in the world. Gi ven Tenaris' global focus, it likely would
have a strong incentive to have a significant presence in the US market, including the
supply of its global customers' OCTG requirements in the US market.
Second, casing and tubing are among the high est valued pipe and tube products,
generating among the highest profit margins. Thus, producers generally have an
incentive, where possible, to shift produc tion in favor of these products from other
pipe and tube products that are manufactured on the same production lines.
Third, the record in these reviews indicat es that prices for casing and tubing on the
world market are significantly lower than pr ices in the United States. Virtually all
purchasers report that, notwithstanding the di scipline imposed by the orders, subject
imports are nevermore expensive than the domestic like product and often less
expensive. One purchaser reported that if the orders are revoked, ***. We have
considered respondents' arguments that the domestic industry's claims of price
differences are exaggerated, but neverthel ess conclude that there is on average a

127 OCTG includes two different product sub-groups: "Casing and tubing" and "drill pipe". The like
product in the OCTG sunset review at issue included "casing and tubing", but not "drill pipe". See, USITC
Sunset Determination, supra note 4, (Exhibit MEX-20) pp. 1-4.

difference sufficient to creat e an incentive for subject pr oducers to seek to increase
their sales of casing and tubing to the United States.
Fourth, subject country producers also face import barriers in other countries, or on
related products. Argentine, Japanese, and Mexican producers are subject to
antidumping duty orders in the United States on seamless standard, line, and pressure
pipe, which are produced in the same production facilities as OCTG. Korean
producers are subject to import quotas on welded line pipe shipped to the
United States and US antidumping duty orders on circular, welded, non-alloy steel
pipe. Canada currently imposes 67 per cent antidumping duty margins on casing
from Korea.
Finally, we find that industries in *** of the subject countries are dependent on
exports for the majority of their sales. Japan and Korea in particul ar have very small
home markets and depend nearly exclusively on exports. The export orientation of
the industries in the subject countries indicates that they would seek to re-enter the
US market in significant quantities, as they did during the original investigations, if
the orders were revoked.
We therefore find that, in the absence of the orders, the likely volume of cumulated
subject imports, both in absolute terms a nd as a share of the US market, would be
significant.
128 (footnotes omitted)
7.125 Regarding the first point, Mexico argues that some of the companies in the Tenaris group
were not covered by the anti-dumping duty, and thus there was no incentive for companies subject to
the duty to export to the United States. Mexico notes the existence of long-term contractual
commitments, and argues that there was no eviden ce that producers would break these contracts.
However, evidence before the USITC indicated th at long-term contracts accounted for only about
55 per cent of Tenaris sales. 129 Moreover, evidence indicated that the Tenaris companies had
contracts with oil and gas companies covering their operations outside the United States, and wanted
to extend arrangements to include the United States, the world's largest market for OCTG. Moreover,
the mere fact that one of the Tenaris compani es was not covered by the anti-dumping duty does not
undermine the incentives for other companies in the group to ship to the United States, particularly in
light of evidence that this one company had no intention of increasing its exports to the
United States.
130 We cannot conclude that the USITC's an alysis in this regard was not based on
positive evidence.
7.126 With respect to the USITC's second reason, Mexico argues that the conclusion that "producers
generally have an incentive, where possible, to shift production in favour of" casing and tubing, which
are "among the highest valued pipe and tube pro ducts, generating among the highest profit margins"
is a "general assumption" and does not take account of the fact that Tenaris did not rely on the
US market and was therefore not motivated by such general incentives. However, Mexico does not
dispute the fact that the subject products are of rela tively high value, and that shifting product to the
relatively higher value products was possible.
 131 Thus, we cannot conclude that the USITC's analysis
in this regard was not based on positive evidence.

128 USITC Sunset Determination, supra note 4, (Exhibit MEX-20 at 19-20). The asterisks in the text
indicate confidential information deleted from the public version of the report.
129 USITC hearing transcript, paras. 200 and 205 (Exhibit US-24).
130 Post-Hearing Brief of TAMSA at 8 (Exhibit US-25).
131 In comments received after the issuance of the Appellate Body Report in US – Oil Country Tubular
Goods Sunset Reviews, Mexico asserts that unlike Argentina it does dispute that "shifting production was

7.127 Next, Mexico argues that the USITC's analysis concerning the price differences between the
US and the world markets was based on anecdotal a nd contested evidence, and did not relate to the
question whether producers had incentives despite th e existence of long-term contracts and sales
primarily to end-users. The USITC cited the testimony of three individuals in this sector in support of
the price differential, and Mexico has not referred to any contrary evidence.
132 The fact that there may
have been differing evidence as to the magnitude of the price difference does not affect the fact that a
price difference existed, and the USITC concluded th at "on average" the difference was sufficient to
create the incentive to sell in the US market, i ndicating that it took the conflicting evidence into
account. Moreover, the mere fact that the evidence was "anecdotal" in Mexico's terminology does not
remove its probative value. The AD Agreement does not establish any limits on the type of evidence
that may be relied upon by investigating authorities. Thus, we cannot conclude that the USITC's
analysis in this regard was not based on positive evidence.
7.128 Fourth, Mexico argues that, with respect to th e existence of trade barriers, only one of the
trade barriers was on the subject OCTG product, whil e others concerned related products that could
be produced on the same production lines as casing and tubing. Mexico argues that there was no
evidence that product shifting would occur, and therefore these trade barriers do not support the
USITC's conclusion. Given that it is undisputed that such shifting could occur, we see no reason to
conclude that it was unreasonable of the USITC to cons ider that the existence of barriers to trade in
related products provided an incentive to shift pr oduction to a higher value product for which the
revocation of the anti-dumping order would open a la rge market. Thus, we cannot conclude that the
USITC's analysis in this regard was not based on positive evidence.
7.129 Finally, Mexico disputes the USITC's finding that, because the industries in the countries
subject to the sunset review were "dependent on ex ports for the majority of their sales", they would
seek to re-enter the US market in significant quantit ies. Mexico argues that this "observation" of
export dependence served as the basis for the c onclusion that these producers were export oriented,
and this indicated that they would seek to re-enter the US market in significant quantities. It is
noteworthy that Mexico does not dispute the fact th at these companies were dependent on exports, or
that they had had a significant presence in the US market prior to the imposition of the anti-dumping
duty. Rather, Mexico seems to suggest a mere "observation that certain companies had been
successful in exporting", is insufficient to supp ort the conclusion that these companies had an
incentive to re-enter the market. In our view, this "observation" is an undisputed finding of fact, and
we see no reason to conclude that it was unreasonable of the USITC to draw the inferences it did.
7.130 While Mexico has attacked each of the el ements underlying the USITC's conclusion
regarding the likely volume of imports, it is important , in our view, to keep in mind that it is the
USITC's determination of likelihoo d of continuation or recurrence of injury which must be based on
sufficient positive evidence and supported by reasoning. As one element of that determination, the
USITC determined that certain producers had incentiv es to increase their exports to the United States
on the basis of its analysis of a variety of factors. While we might differ with the USITC's views as to
the relative importance of these factors on an indi vidual basis, overall, we find no support for a
conclusion that the USITC's conclusion regarding the likely volume of imports was not based on a
proper establishment of facts and an unbiased and objective evaluation of those facts.

'technically possible'". In support of this assertion Mexico points to paras. 202-210 of its first submission and
paras. 122-127 of its second submission. We have carefully reviewed the cited paragraphs, which we
understand to assert that product shifting would be an unlikely business decision, but not that it was technically
impossible. Thus, as Mexico did not argue that product shifting was not technically possible prior to the
decision of the Appellate Body, we decline to consider that assertion at this stage of the dispute.
132 USITC Sunset Determination, supra note 4, (Exhibit MEX-20) p. 21, footnote 128, Mexico's first
submission, para. 207.

Likely price effects of dumped imports
7.131 The USITC's determination also contains a detailed discussion regarding the likely price
effects of imports, again starting with a description of the relevant findings in the original
investigation, and then addressing th e evidence relevant to the period of application of the measure.
The USITC concluded:
Given the likely significant volume of subject imports, the high level of
substitutability between the subject imports and domestic like product, the importance
of price in domestic purchasing decision, the volatile nature of US demand, and the
underselling by the subject imports in the original investigation and during the current
review period, we find that in the absen ce of the orders, casing and tubing from
Argentina, Italy, Japan, Korea and Mexico likely would compete on the basis of price
in order to gain additional market share. We find that such price-based competition
by subject imports likely would have si gnificant depressing or suppressing effects on
the prices of the domestic like product.
133 (footnote omitted)
7.132 Mexico argues that the USITC's findings are uns upported by evidence on the record, and that
its key finding on underselling is based largely on evidence from the original investigation. Mexico
maintains that there was little ev idence of underselling by likely imports, and thus the USITC gave
greater weight to the evidence of underselling in the or iginal investigation. Mexico also asserts that
the USITC's ancillary findings concerning the volatil e nature of demand and the importance of price
in purchasing decisions are not based on positive evidence.
7.133 With respect to the analysis of price underselling, we note that the USITC did undertake a
comparison for the period in which the anti-dumping duty was in effect:
While direct selling comparisons are limited because the subject producers had a
limited presence in the US market during the period of review, the few direct
comparisons that can be made indicate that subject casing and tubing generally
undersold the domestic like pr oduct especially in 1999 and 2000.
134 (footnote
omitted)
7.134 The mere fact that there was only a limited number of comparisons does not, in our view,
demonstrate inconsistency with Article 11.3 of the AD Agreement. 135 There is no minimum number
of price comparisons that must be made, or instan ces of underselling that must be found, in order for
the evidence on price underselling to be taken into acc ount by an investigating authority in a sunset
review. Indeed, it may often be the case that imports decline during the period an anti-dumping duty
is in effect, thus limiting or even eliminating possible price comparisons. This would not preclude an
investigating authority from dr awing conclusions regarding price based on whatever evidence was
available to it. In this case, the USITC was able to make price comparisons, and explained the reason
for the limited number of those comparisons – the low volume of imports following the imposition of
the anti-dumping duty. Mexico makes no argument or allegations concerning the probative value of
the price comparisons actually undertaken.
7.135 Mexico does suggest that, in the absence of more price comparisons, the USITC "gave greater
weight" to information from the original invest igation, and that this "reliance on outdated

133 USITC Sunset Determination, supra note 4, (Exhibit MEX-20, at 21).
134 Ibid., p. 21.
135 We note that the Appellate Body in US – Oil Country Tubula r Goods Sunset Reviews , endorsed a
similar finding by the Panel in that case. Appellate Body Report, US – Oil Country Tubular Goods Sunset
Reviews, supra note 39, para. 346.

information" demonstrates that the USITC did not rely on positive evidence.
136 We do not agree with
Mexico's characterization of the USITC determinati on. While it is true that the USITC's conclusion
refers to "underselling by the subject imports in the original investigations", that reference is
immediately followed by the phrase "and during the current review period". 137 This does not suggest
any "greater weight" accorded the information regardin g the original investigat ion. In the absence of
any arguments regarding the price comparisons devel oped in the original investigation or the findings
of underselling, and given that the USITC did deve lop and refer to price comparison information in
the sunset review, we see no basis to find that the mere reference to evidence from the original
investigation demonstrates a lack of positive evidence or an unobjective or biased evaluation.
7.136 Mexico also argues that the USITC's "ancillary findings" are unsupported by positive
evidence, referring specifically to the volatile natu re of US demand and the importance of price in
purchasing decisions. With respect to the question of "volatile US demand", Mexico appears to argue
that the USITC failed to explain why this was impor tant, but does not dispute as a factual matter that
demand in the US market was volatile. 138 As this factual statement is merely one element of the
USITC's conclusion, we do not consider that it was necessary to demonstrate its importance per se.
7.137 Mexico also argues that the USITC's determination that price was an important factor in the
purchasing decisions in the US market was flaw ed because the evidence shows that purchasers
attached a similar importance to factors other than price. Purchasers were asked, during the sunset
review, to indicate the importance of various factors in their purchasing decisions, with 2 indicating
"very important", 1 indicating "important", and 0 indicating "not important". The staff report
accompanying the USITC's determination in this case shows that purchasers gave the factor of
"lowest price" an average rating of 1.8.
139 While it is true that other factors were also rated important,
we cannot see that this in any way diminishes th e importance of price in purchasing decisions. The
USITC did not find that price was the only important factor, or even the most important factor; it
found that it was an important factor. Mexico also asserts that purchasers cited quality and product
availability just as frequently as price as their "p rimary purchasing criterion". However, the staff
report indicates that no purchaser ranked product availa bility as the most important factor, while nine
purchasers ranked price as the most important factor.140 Thus, Mexico's argument does not undermine
the evidence supporting the USITC's conclusion.
7.138 We therefore conclude that the USITC's determ ination regarding the likely price effect of
dumped imports was based on an objective examination of positive evidence in the record.
Likely impact of dumped imports on the US industry
7.139 The USITC once again began by referring to the findings in the original investigation and
went on to consider the evidence relating to the pe riod of application of the anti-dumping duty. The
USITC clearly stated that the ev idence of the then-current condition of the domestic industry was
positive. However, on the basis of its earlier findi ngs regarding the likely volume of dumped imports
and their likely price effects, it nevertheless concluded that these imports are likely to have an adverse
impact on the US industry. The determination reads, in relevant parts:

137 USITC Sunset Determination, supra note 4, (Exhibit MEX-20) p. 21.
138 Mexico asserts that there was "no evidence for the proposition that demand for OCTG was
unusually volatile during the period examined." Mexico's first submission, para. 214. However, the USITC did
not find that demand was unusually volatile. Thus, we fail to see any relevance in Mexico's assertion.
139 Staff Report to USITC Sunset Determination, supra note 4, (Exhibit MEX-20 at II-19).
140 Ibid., p. II-17.

On balance, we find that the domestic industry's condition has improved since the
orders went into effect as reflected in most indicators over the period reviewed, and
we do not find the industry to be currently vulnerable.
We find, however, as discussed above, that revocation of the orders likely would lead
to a significant increase in the volume of subject imports which likely would
undersell the domestic like product and significantly depress or suppress the domestic
industry's prices. Moreover, in the origin al investigations, subject imports captured
market share and caused price effects d espite a significant increase in apparent
consumption in 1993 and 1994 as compared to 1992. In these reviews, we find that a
significant increase in subject imports is likely to have negative effects on both the
price and volume of the domestic producer s' shipments despite strong demand
conditions in the near term. We find th at these developments likely would have a
significant adverse impact on the production, shipments, sales, market share, and
revenues of the domestic industry. Th is reduction in the domestic industry's
production, shipments, sales, market share, and revenues would result in erosion of
the domestic industry's profitability as well as its ability to raise capital and make and
maintain necessary capital investments.
141
7.140 Mexico argues that the USITC's conclusions rega rding the likely impact of future imports on
the US industry were not based on an objective examin ation of the evidence in the record. According
to Mexico, the USITC "based its conclusion of what would be likely to happen" if the order were
revoked on what had occurred during the original period of investigation. 142 Moreover, Mexico
contends that the USITC's conclusion was "particularly egregious" given that the evidence showed the
domestic industry was "quite healthy". 143 Mexico argues that the evidence of good operating results
demonstrated that injury would not be likely, a nd that the USITC's conclusion regarding the likely
volume and price effects of dumped imports fatally a ffected its examination of the adverse impact of
such imports on the US industry.
7.141 While it is true that the USITC's determina tion references the findings in the original
investigation, it also clearly addresses the evidence of the condition of the industry during the period
the anti-dumping duty was in effect, and concludes th at despite the positive nature of the evidence on
the current condition of the industry, the likely vol ume and price effects of imports would have a
significant adverse impact on various aspects of the state of the US industry in the future. It is thus
clear to us that the determination is not, in fact, based on the findings in the original investigation.
7.142 Therefore, in our view, the issue is whether, given its findings regarding the likely volume of
dumped imports and their likely price effect, the USITC could conclude that there would be an
adverse impact on the US industry.
7.143 In our view, the USITC did not act inconsistent ly with Article 11.3 of the Agreement in its
determination regarding the likely impact of futu re dumped imports on the US industry. There is
nothing in Article 11.3 that requires an investig ating authority to follow a particular method in
considering the likelihood of continuation or recu rrence of injury. As long as the investigating
authority's determination rests on a sufficient b asis of positive evidence and reflects an objective
examination of these facts, it will meet the requirements of Article 11.3. In this case, the USITC
found that imports were likely to increase and to have a negative effect on the prices of the
US industry in the event of revocation of the measure at issue. As discussed above, we have found no
inconsistency with Article 11.3 in those conclusions. Then, the US ITC found that this likely increase

141 USITC Sunset Determination, supra note 4, (Exhibit MEX-20, at 22-23).
143 Ibid., para. 219.

in imports and their likely price effect would have a negative impact on the US industry. We do not
consider that an objective and unbiased investigating authority could not reach this conclusion in light
of the evidence cited. The mere fact that the evidence of the domestic industry's condition was
positive does not preclude a finding that increased import volumes which would likely have negative
effects on prices would likely have an adverse impact on the domestic industry.
144 Indeed, a desired
effect of an anti-dumping duty is improvement in the condition of the domestic industry. Moreover, if
a finding that imports would likely have an adver se impact an industry whose condition is generally
good were precluded, there would be no basis for continuation of an anti-dumping measure based on
likely "recurrence" of injury, which is specifically provided for in Article 11.3. We therefore
conclude that the USITC's determination regardi ng the likely impact of the likely dumped imports on
the US industry was not inconsistent with Article 11.3 of the AD Agreement. As discussed above, we
make no findings regarding Mexico's claims under Articles 3.1 and 3.2
(iii) Alleged violations of Articles 3.4, 3.5, 3.7, and 3.8 of the AD Agreement in the determination
of likelihood of continuation or recurrence of injury
7.144 As discussed above, we have concluded that Article 3 does not apply directly in sunset
reviews. Thus, Mexico's claims under Articles 3.4, 3.5, 3.7, and 3.8 of the AD Agreement would be
cognizable only if the USITC had made a determinati on of injury in this case. However, it is clear
from the face of the USITC's determination that it made a determination re garding the likelihood of
continuation or recurrence of injury, rather than a determination of injury. Indeed, Mexico does not
argue otherwise. Thus, we make no findings regard ing Mexico's claims under Articles 3.4, 3.5, 3.7,
and 3.8 of the AD Agreement.
(iv) Cumulation
7.145 Mexico argues that the USITC's use of the cumulation methodology in the sunset review in
dispute was inconsistent with Articles 11.3 and 3.3 of the Agreement. According to Mexico,
Article 11.3 requires a finding of the likelihood of continuation or recurrence of injury if the anti-
dumping duty on imports from Mexico were revoked, and in the absence of any specific provision
permitting cumulation in a sunset review, that met hodology is inconsistent w ith Article 11.3. In
addition, Mexico argues that Article 3.3 limits the u se of cumulation to investigations only. In the
alternative, Mexico argues that if cumulation is no t prohibited in sunset reviews, then the conditions
set forth in Article 3.3 regarding the use of cumu lation must be fulfilled. In this case, Mexico
maintains that the de minimis dumping and negligible import elem ents of Article 3.3 would have
precluded cumulation. The United States asserts that the AD Agreement does not prohibit cumulation
in sunset reviews. Therefore, WTO Members ar e generally free to use this methodology in such
reviews. According to the United States, the text of Articles 3.3 and 5.8 of the Agreement confirms
that the numerical criteria set out in Article 3.3 of the Agreement regarding the use of cumulation are
limited to investigations and do no t extend to sunset reviews. Thus, the United States argues that the
USITC did not act inconsistently with the Agreement by using cumulation in the instant sunset review
without taking into consideration the requirements of Article 3.3.
7.146 We begin our analysis with the text of the Agreement. Article 11.3 provides:
Notwithstanding the provisions of paragra phs 1 and 2, any definitive anti-dumping
duty shall be terminated on a date not la ter than five years from its imposition (or

144 We find support for our view in the Appellate Body Report in US – Oil Country Tubular Goods
Sunset Reviews . In examining the same issue, the Appellate Body observed that "[t]he positive state of the
domestic industry as of the date of the sunset review need not necessarily be dispositive of the future when other
adverse factors are present." Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, supra
note 39, para. 351.

from the date of the most recent review under paragraph 2 if that review has covered
both dumping and injury, or under this pa ragraph), unless the authorities determine,
in a review initiated before that da te on their own initiative or upon a duly
substantiated request made by or on be half of the domestic industry within a
reasonable period of time prior to that date, that the expiry of the duty would be likely
to lead to continuation or recurrence of dumping and injury.
22 The duty may remain
in force pending the outcome of such a review.
Article 3.3 of the AD Agreement provides:

Where imports of a product from more than one country are simultaneously subject to
anti-dumping investigations, the investigating authorities may cumulatively assess the
effects of such imports only if they determine that (a) the margin of dumping
established in relation to the imports from each country is more than de minimis as
defined in paragraph 8 of Ar ticle 5 and the volume of imports from each country is
not negligible and (b) a cumulative assessment of the effects of the imports is
appropriate in light of the conditions of competition between the imported products
and the conditions of competition between the imported products and the like
domestic product.
7.147 It is clear that the text of Article 11.3 does not mention cumulation at all. Thus, it does not
resolve the issue of whether the methodology may be u sed in sunset reviews. Nor is there any direct
guidance on this matter in other provisions of the Agreement – there are no cross-references between
Article 11 and Article 3.3, or an y other provision of Article 3. Mexico acknowledges these facts, but
argues that they demonstrate that cumulation is not pe rmitted in sunset reviews. In Mexico's view, to
allow cumulation in sunset reviews would be to c ondition Mexico's right to termination of the anti-
dumping duty on the actions of exporters from othe r WTO Members, which would be inconsistent
with the plain meaning and object and purpose of Article 11.3.
7.148 We do not agree. In our view, the sile nce of the AD Agreement on the question of
cumulation in sunset reviews is pr operly understood to mean that cu mulation is permitted in sunset
reviews. We note in this context the recent finding of the Appellate Body in US – Oil Country
Tubular Goods Sunset Reviews that Articles 3.3 and 11.3, on their own, are "not to be instructive on
the question of the permissibility of cumulation in sunset reviews." 145 The Appellate Body went on to
note that "[t]he silence of the text on this i ssue, however, cannot be understood to imply that
cumulation is prohibited in sunset reviews."146
7.149 We note that Article 11.3 contains almost no guidance on questions of methodology for
determinations of likelihood of continuation or recurrence of injury, unlike Article 3, which does
establish certain required elements of analysis for de terminations of injury. Thus, we consider it
unsurprising that Article 11.3 does not specifically provide for cumulative analysis. Mexico argues
that Article 11.3 refers to "an anti-dumping duty" in the singular, allegedly demonstrating that it refers
to the measure with respect to one country. However, we note that Mexico has misquoted

145 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, supra note 39, para. 294.
146 Ibid., para. 294.

Article 11.3, which refers to " any anti-dumping duty", not " an anti-dumping duty". "Any" has both
singular and plural meanings
147 and thus the text of Article 11.3 fails to support Mexico's position.
Moreover, we note that even with respect to one co untry, it might be argued that there is more than
one duty, as different exporters are subject to anti- dumping duties at differing rates, depending on the
calculation of the margin of dumping. We find no support for Mexico's assertion that the object and
purpose of the sunset provisions, or the AD Agr eement as a whole, suggests that cumulation is
prohibited. Even assuming Mexico were correct in asserting that the object and purpose of
Article 11.3 is to "ensure that anti-dumping measure s would not continue in perpetuity", a cumulative
analysis does not vitiate that object and purpose.
7.150 Turning to Mexico's alternative argument, we note first that, as we have already discussed, the
provisions of Article 3 do not apply directly to s unset reviews. With respect to Article 3.3 in
particular, we note that it is unique among the paragra phs of Article 3 in that it is the only paragraph
that contains the word "investigation":
Where imports of a product from more than one country are simultaneously subject
to anti-dumping investigations, ...
Thus, in our view, Article 3.3 of the Agreemen t on its face establishes conditions for the use of
cumulative analysis which apply only in original anti-dumping investigations.
 148 Therefore, the
USITC's use of cumulation in the instant sunset review cannot be found to be inconsistent with
Article 3.3 of the AD Agreement.
7.151 On the basis of the fore-going, we conclude that the USITC's determination in the sunset
review of OCTG is not inconsistent with Articl es 3.3 and 11.3 of the Agreement because it involved a
cumulative analysis.
D. ALLEGED INCONSISTENCY OF USDOC'S FOURTH ADMINISTRATIVE REVIEW DETERMINATION
1. Claims under Articles 11.2, 2.4 and 2.4.2 of the AD Agreement
(a) Arguments of Mexico
7.152 Mexico claims that the USDOC's Fourth Administrative Review Determination is
inconsistent with Article 11.2 of the Antidumping Agreement because USDOC did not terminate the
anti-dumping duty immediately upon a showing, by both Mexican producers participating in the
review, that the continued application of the duty was not "necessary to offset dumping". In addition,
and in support of its principal claim, Mexico also claims that USDOC's de termination not to revoke
the anti-dumping duty on OCTG from Mexico was not based on positive evidence that the continued
imposition of the duty was necessary to offset dumping. This claim is based on the arguments with
respect to the individual companies requesting reviews.
7.153 With respect to Hylsa, Mexi co argues the USDOC's determination not to revoke the duty
violated Articles 11.2, 2.4, and 2.4.2 of the AD Agreement because, in calculating a margin of
dumping for Hylsa, the USDOC failed to make a fair comparison between export price and normal
value, by "zeroing" Hylsa's negative margins. With respect to TAMSA, Mexico argues that USDOC's
determination not to revoke viol ated Article 11.2 of the AD Agreement because the Department:

147 New Shorter Oxford English Dictionary, Clarendon Press, Oxford, 1993 ("any – adj. 1 gen. As
sing., a -- , some -- , no matter which, or what. As pl., some – no matter which, or what kind, or how many")
(emphasis added).
148 We note that this was also the conclusion reached by the Panel in US – Corrosion-Resistant Steel
Sunset Review, supra note 75, para. 7.102, and by the Panel and Appellate Body in US – Oil Country Tubular
Goods Sunset Reviews, supra note 39, paras. 7.336 and 302, respectively.

(i) applied a standard which required a demonstrat ion that dumping was "not likely" in the future;
(ii) arbitrarily imposed a "commercial quantities" requi rement test which is inconsistent with, and has
no basis in, Article 11.2; and (iii) ignored positive evidence that demonstrated that the measure was
no longer necessary to offset dumping.
(b) Arguments of the United States
7.154 The United States notes that Mexico's claim rests on asserted obligations under Article 11.2
of the AD Agreement. The United States argues, however, that Article 11.2 of the AD Agreement
does not oblige a Member to terminate a measure with respect to individual companies. In the
United States' view, Article 11.2 requires a review of the continuing need for the anti-dumping "duty"
as a whole, not as applied to individual companies. The United States asserts that TAMSA and Hylsa,
the two Mexican companies which participated in the fourth administrative review, did not seek
revocation of the duty as a whole, which they coul d have done, either individually or collectively,
under governing US regulations. Rather, as pr ovided for under governing US regulations, each
company individually requested revo cation of the order, as to itself, on the basis that each company
had not dumped for three consecutive years. The United States argues that the possibility to seek
revocation, in the context of administrative review s, on a company-specific basis, is a provision of
governing US law which goes beyond the WTO oblig ations of the United States under Article 11 of
the AD Agreement in a manner that favours the exporter. Thus, the United States argues, the
provisions of Article 11.2 do not g overn the conduct of and determina tions made in such cases, and
therefore the Panel need not reach the issues of wh ether the individual determinations with respect to
TAMSA and Hylsa violated Articles 11.2, 2.4 and 2.4.2 of the AD Agreement respectively.
7.155 The United States further argues that even assuming arguendo that the Panel were to find that
Article 11.2 requires the United States to carry out revocation reviews on a company specific basis,
the terms of Article 11.2 would not compel the re vocations TAMSA and Hylsa sought in the fourth
administrative review.
(c) Findings
7.156 Mexico's claim rests on Article 11.2 of the AD Agreement, which provides:
The authorities shall review the need for the continued imposition of the duty, where
warranted, on their own initiative or, provi ded that a reasonable period of time has
elapsed since the imposition of the definitive anti-dumping duty, upon request by any
interested party which submits positive in formation substantiating the need for a
review.
21 Interested parties shall have the ri ght to request the authorities to examine
whether the continued imposition of the duty is necessary to offset dumping, whether
the injury would be likely to continue or r ecur if the duty were removed or varied, or
both. If, as a result of the review under this paragraph, the authorities determine that
the anti-dumping duty is no longer warranted, it shall be terminated immediately.

immediate termination of an anti-dumping duty merely because there is no dumping found at the time
of such a review.
149
7.158 The United States argues that company-specific re vocation reviews, such as those requested
by TAMSA and Hylsa in this case, are not required by Article 11.2 and therefore do not give rise to
any obligations under the AD Agreement with respect to the conduct of and determinations resulting
from these proceedings. The United States argues that the words "the duty" when read in the context
of Article 11.3 of the AD Agreement refer to the anti-dumping duty as a whole and not as applied to
individual companies. In support, the United Stat es refers to the report of the Appellate Body US –
Corrosion-Resistant Steel Sunset Review, which found that the word "duty" in Article 11.3, when read
in the light of Article 9.2, did not require aut horities to make their likelihood determination on a
company-specific basis.
150 Mexico, in response, argues that re ferences to "interested parties" and
"any interested party" in Article 11.2 must be in terpreted to include individual exporters, and the
absence of these terms in Article 11.3 distinguishes it from Article 11.2.
7.159 We need not, however, determine in this case whether or not Article 11.2 requires
investigating authorities to provide for company spec ific reviews. As discu ssed further below, our
understanding is that the United States system does, in fact, provide for such reviews, both under the
changed circumstances provision, and in the more limited circumstances of no dumping for three
years and sales in commercial quantities.
7.160 Before undertaking our analysis, we consider it important to have a clear understanding of the
US system of reviews. US law provides for a number of different types of reviews. 19 U.S.C.
§ 1675(a) provides for "periodic review of amount of duty" – commonly referred to as administrative
reviews. This is a form of duty assessment procedur e, as required by Articles 9.2 and 9.3, to ensure
that the US authorities do not collect duty in excess of the amount of dumping.
151 19 U.S.C.
§ 1675(b) provides for reviews based on changed ci rcumstances. 19 U.S.C. § 1675(c) provides for
sunset reviews. 19 U.S.C. § 1675(d)(1) provides for the revocation, in whole or in part , of an anti-
dumping duty. Such revocation may come after the completion of an administrative review in which
certain findings were made, or completion of a changed circumstances review.152
7.161 The USDOC regulations implementing these provi sions include 19 C.F.R. 351.222(b)(1),
which authorizes revocation of an anti-dumping or der following an administrative review when all
exporters and producers covered by the order at the time of revocation have sold the subject
merchandise at non-dumped prices for at least th ree consecutive years. 19 C.F.R. 351.222(b)(2)
authorizes revocation of an anti-dumping duty order, in whole or in part, following an administrative
review if one or more exporters or producers has sold the subject merchandise at non-dumped prices
for at least three consecutive years. A requ est for revocation under this provision must be
accompanied by, inter alia, a certification that there were sales in commercial quantities during the
three year period. 153 19 C.F.R. 351.222(g) authorizes revocation of an anti-dumping duty order, in
whole or in part , if, inter alia , USDOC determines there are changed circumstances sufficient to

149 Panel Report , United States – Anti-Dumping Duty on Dynamic Random Access Memory
Semiconductors (DRAMS) of One Megabit or Above from Korea ("US – DRAMS "), WT/DS99/R, adopted
19 March 1999, DSR 1999:II, 521, para. 6.34.
150 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, supra note 37, para.150.
151 The United States operates a duty assessment system on a retrospective basis, as provided for in
Article 9.3.1, of which the administra tive reviews are an integral part. Other Members have other mechanisms,
for instance refund mechanisms under Article 9.3.2. Mexico has made no claims in connection with the
US duty assessment system in general, or specifically under Article 9.
152 19 U.S.C. § 1675(d)(2) provides for the revocation of an anti-dumping duty after a sunset review.
(Exhibit MEX-24).
153 19 C.F.R. § 351.222(e)(1).

warrant revocation. A review may be requested by any interested party, including individual
companies, under each of these provisions.
154
7.162 Thus, our understanding of the US system is that an individual company may, in the context
of an administrative review begun after the order has been in place at least three years, request
revocation of an anti-dumping order as applied to its elf if it has not dumped for three years and made
sales in commercial quantities during that period. 155 It may also request revocation of an anti-
dumping order in whole, or as applied to itself, based on any relevant changed circumstances.
Essentially, the former possibility est ablishes an automatic right to revocation if the necessary factual
and procedural requirements are met, while the latt er establishes a right to request revocation on the
basis of any relevant evidence and arguments presented to the administering authority.
7.163 The reviews at issue in this dispute were requested by two Mexican exporters, TAMSA and
Hylsa, under section 351.222(b)(2) of the USDOC regulations. 156 Under that provision, USDOC may
revoke an anti-dumping duty with respect to the individual company making the request if, as a
threshold matter, it finds that the company has not made dumped sales for three years, and made sales
in commercial quantities during that period. USDOC in this case found that these threshold
requirements were not met – with respect to TAMS A, USDOC determined that it had not made sales
in commercial quantities, while with respect to Hy lsa, USDOC determined that it had made sales at
dumped prices during the relevant period.
157 The question before us, thus, is whether by deciding not
to revoke the anti-dumping order with respect to these two companies individually, because the
threshold requirements for revocation under the governing regulation had not been met, USDOC
acted inconsistently with Article 11.2 of the AD Agreement.
7.164 We have reviewed the relevant provisions of US law and USDOC regulations, and it is clear
to us that individual companies are entitled in the US system to request revocation of an anti-dumping
order either as a whole, or as applied to the partic ular company. Such requests can be based on the
general "changed circumstances" review provisions, or on the basis of no dumping for three years. In
the latter case, however, USDOC regulations impo se additional requirements on the company seeking
revocation, including the requirement that a company seeking revocation on the basis of no dumping
for three years have made sales in the US market in commercial quantities during that period.
7.165 As we understand the US system, a company which does not satisfy the additional
requirements for revocation on the basis of no du mping in section 351.222(b)(2) is nonetheless
entitled to seek revocation of the anti-dumping duty order as applied to it under the general changed
circumstances provision, providing it can provide in formation substantiating the need for review, as
provided for in Article 11.2. In our view, what the United States law and regulations do is establish
that certain information is in all cases suffici ent to warrant a review and possible revocation –
information demonstrating no dumping for three years and sales in commercial quantities during that
time. A company which submits such information is automatically entitled to a review to determine
whether continued application of the anti-dumping duty order with respect to that company is
warranted. However, a company which cannot s ubmit such information is nonetheless entitled to
seek a review to determine whether continued appli cation of the anti-dumping duty order with respect

154 Exhibit US-28
155 19 C.F.R. § 351.222 (f)(1) provides that a request for revo cation under section 351.222(1), will be
considered as including a request for administrative re view, and such a review will be conducted under the
applicable regulation, section 351.213.
156 Letter from White & Case LLP to USDOC requesting revocation with respect to TAMSA
(Exhibit MEX-10), Letter from Shearman & Sterling to USDOC requesting revocation with respect to Hylsa
(Exhibit MEX-11).
157 USDOC Fourth Administrative Review Determination, supra note 5, Decision Memorandum, pp. 9
and 21.

to that company is warranted, on the basis of any other information which it considers sufficient to
substantiate the need for review.
7.166 There does not appear to be any limitation on the evidence or arguments that might be
presented in support of a request under the genera l changed circumstances provision. Thus, an
exporter or foreign producer who is unable to satisfy the requireme nts under section 351.222(b)(2) is
not precluded from arguing, based on facts that might be insufficient to satisfy the requirements of
that section, that revocation is nonetheless warrant ed. Essentially, the company-specific revocation
provision establishes a presumption that, if the requis ite factual situation exists, application of the
anti-dumping duty as to that company is no longer warra nted. Given that this operates in favour of
foreign producers and exporters, and that a more general opportunity to request review exists, we see
no basis to conclude that USDOC acted inconsisten tly with Article 11.2 in the fourth administrative
review when it concluded that the Mexican exporters were not entitled to revocation as their situation
did not fit the required factual prerequisites.
7.167 The two Mexican exporters involved in the four th administrative review, TAMSA and Hylsa,
both requested revocation under the provisions entitling a company to a review and possible
revocation if it demonstrates no dumping for three years and sales in commercial quantities during
that time. However, USDOC determined that these factual prerequisites were not satisfied, and that
therefore neither company was entitled to the requ ested review and revocation. Neither company
sought review under the general changed circumstances provisions, or provided any other information
which might have substantiated the ne ed for review, either with respect to themselves, or with respect
to the order as a whole.
7.168 If a request based on three years of no dumping and sales in commercial quantities during that
time were the only avenue available to an interested party in the US system to obtain a review and
possible revocation of a duty, we might well conclude that application of those requirements, and a
refusal to consider other evidence, leads to a different conclusion regard ing the consistency of
USDOC's determination with Article 11.2. However, it is clear to us that this is not the case. The
decision not to consider revocation under the specific provision does not preclude a party from
seeking revocation under the more general changed circumstances provision. In this case, the
Mexican exporters did not avail themselves of this possibility.
7.169 Thus, even assuming Mexico is correct in arguing that Article 11.2 requires company-specific
revocation reviews, such reviews are provided for un der US law. Merely that USDOC has enacted a
regulation establishing an automatic revocation re view if certain factual prerequisites are
demonstrated does not detract from this right, and a decision under that regulation that the factual
prerequisites have not been demonstrated does not establish a violation of Article 11.2.
7.170 In this context, we note the views of the Panel in US – DRAMS.
 In that dispute, the Panel was
considering, inter alia, whether a requirement that exporters certify their agreement to their immediate
reinstatement in an anti-dumping order if they dum p subsequent to revocati on was inconsistent with
Article 11.2. The Panel concluded that "because of the existence of legislative avenues for
Article 11.2-type reviews that do not impose a cer tification requirement, and which have not been
found inconsistent with the WTO Agreement, we are precluded from finding that the
section 353.25(a)(2)(iii) certification requirement in and of itself amounts to a mandatory requirement
inconsistent with Article 11.2 of the AD Agreemen t." Mexico has not challenged the consistency
with Article 11.2, as such, of the regulatory provisions at issue here, but we consider that the principle
applies with equal force to the situation at hand.
7.171 Mexico contends that section 351.222(g), wh ich provides for revocation of an anti-dumping
duty order in whole or in part on the basis of a general changed circumstances review, is chiefly a
mechanism for revocation where the US industry is no longer interested in the continuation of the
anti-dumping order, not a means through which the USDOC examines whether continued imposition

of the duty is necessary to offset dumping with resp ect to one company. In support of its argument
Mexico submits Exhibit MEX-66 which contains a list of all changed circumstances reviews
(conducted from January 1995 to June 2004) and the stated basis for the decision on whether or not to
revoke the duty. Mexico draws two conclusions from this exhibit: first, the USDOC has never
revoked an anti-dumping duty on an order-wide basis where the domestic industry favours
continuation of the order, and second, the USDOC h as never made a determination in any of these
cases as to whether the continued imposition of the duty was necessary to offset dumping. Mexico
also asserts that a determination that an exporter has not made dumped sales in the US market in the
three consecutive years prior to requesting revocatio n demonstrates that the duty is not warranted and
that therefore revocation is required under Article 11.2.
7.172 We are of the view that the conclusions drawn by Mexico on the basis of Exhibit MEX-66 are
not relevant to the question of whether, in de nying TAMSA's and Hylsa's request for reviews to
determine whether continued application of the dut y was warranted with respect to those companies
individually the United States has violated its obligat ions under Article 11.2. Merely that revocation
has not been granted in the cases cited in the exhibi t does not in itself demonstrate that an individual
company may not seek and obtain revocation of th e duty as to itself under that provision. Indeed,
whether individual companies have availed themse lves of the opportunity to seek revocation of an
anti-dumping duty order, either in whole or in part, under the general changed circumstances
provision, simply has no bearing on our views con cerning the consistency with Article 11.2 of the
USDOC determinations at issue here. In any even t, Mexico has not challenged the general changed
circumstances regulation, either as such, or as applied – as of course, it could not, as no review was
requested by the Mexican exporters under that provision in this case.
7.173 Regarding Mexico's argument that three c onsecutive years without dumping should be
sufficient, in all cases, to demonstrate that an anti-dumping duty is not warranted, we find no basis for
such a conclusion in Article 11.2 While three years with no dumping might be sufficient to
demonstrate that continued imposition of an anti-du mping duty is not warranted in some cases, we
cannot accept that it is necessarily suffi cient in all cases. For instance, take an extreme example of an
anti-dumping order on sales of transistor radios. A sale of one radio per year at a non-dumped price
for three consecutive years might well be consid ered a mere token sale and not sufficient to
demonstrate that continued imposition of the anti- dumping order is no longer warranted. Moreover,
we note that, under the US system as we understand it, three years of no dumping could, in principle,
serve as the basis for a request for review under the general changed circumstances provision, an
option that was available in this case, but not take n by either Mexican exporter. In this case, the
Mexican exporters chose to seek review and revocati on under the more limited option provided for in
US law, which requires a demonstration of th ree years of no dumping and sales in commercial
quantities during that period in order to qualify for re view and revocation. Given the availability of
an alternative, we are not prepared to conclude that the USDOC determination at issue here is
inconsistent with Article 11.2.
7.174 In this regard, we note the findings of the Panel in US – DRAMS, where the Panel concluded
that Article 11.2 of the AD Agreement does not re quire revocation of an anti-dumping duty order as
soon as an exporter is found to have ceased dumping, and that the continuation of an anti-dumping
duty is not precluded a priori in any circumstances other than where there is present dumping.
158 We
also note footnote 22 of the AD Agreement, which provides "[w]hen the amount of the anti-dumping
duty is assessed on a retrospective basis [as is the case in the US system], a finding in the most recent
assessment proceeding under subparagr aph 3.1 of Article 9 that no duty is to be levied shall not by
itself require the authorities to terminate the defin itive duty." No duty is levied in a retrospective
system if no dumping is found. Merely because no dumping is found for three consecutive years does
not, in our view, necessarily require the conclusion that the anti-dumping duty is no longer warranted.

Such a conclusion might depend on additional f acts, which could be presented in a changed
circumstances review. By providing that, in certain circumstances, USDOC may revoke an anti-
dumping duty order based in part on three years of no dumping, we consider the United States has
gone beyond what is required by Article 11.2.
7.175 Mexico also argued that since TAMSA and Hyl sa were the only Mexican exporters, and each
individually requested review as to itself, these requests constituted a request for revocation under
Article 11.2 and should have been treated as su ch by USDOC. We do not agree. USDOC was
entitled to treat these parties' requests on the basis on which they were actually made. Each company
requested review and revocation of the anti-dumping order with respect to itself on the basis of a
provision in US regulation which requires a demo nstration that the requesting company had not
dumped for three years and made sales in the US mark et in commercial quantities during that period.
USDOC determined that they had failed to make the necessary factual demonstration. We can see no
provision in the AD Agreement that would require USDOC to disregard the actual basis of the
requests made and treat them under a different provision, and Mexico has cited none.
7.176 Mexico also refers to the report of the Panel in US-DRAMS, in which the Panel found the
US regulations governing reviews in consistent with Article 11.2 becau se they set out a standard for
determination inconsistent with the "likely" standard. Mexico argues that in that case, which involved
a request for review and revocation of the order as applied to one company, the United States did not
argue that the review at issue was not subject to the requirements of Article 11.2. Moreover, Mexico
asserts that in implementing the recommendation of the DSB to bring its measure into conformity
with its obligations under Article 11.2, the United States made changes to its provisions on company
specific revocation which demonstrated that the Unit ed States considered this provision to implement
its obligations under Article 11.2.
159 We do not find Mexico's argument persuasive. The question
whether the type of review involved in the US-DRAMS dispute was subject to the requirements of
Article 11.2 was simply not at issue before the Pane l in that case. The issue in that case was the
standard of determination applied by USDOC. Th us, when the Panel concluded that the standard
applied was inconsistent with US obligations under Article 11.2, it also concluded that there was no
WTO-consistent avenue for seeking revocation as required by Article 11.2. 160 While the
United States might have argued that the review at issue in US-DRAMS was not subject to
Article 11.2, as it did here, we do not consider that Members are limited in presenting their arguments
in a particular dispute by the arguments made, or not made, in previous disputes, even if those
previous disputes involved a similar or related topic
7.177 In light of our finding that the reviews undertaken by USDOC at the request of TAMSA and
Hylsa are not subject to the requirements of Article 11.2, we consider that it is not necessary for us to
make findings on Mexico's claims under Articles 11.2, 2.4 and 2.4.2 regarding the specific basis of
the USDOC determinations with respect to TAMSA and Hylsa.

159 In support of this argument, Mexico submitted, as exhibit MEX-68, a copy of an official WTO
document setting forth a status report by the United States on its implementation of the Panel's report in US –
DRAMS. The United States objected to the submission of this exhibit. As the document in question is a public
document relating to WTO dispute settlement, we see no ba sis for refusing to accept its submission. Of course,
merely that we do not reject the submission does not mean we found it to be pertinent or persuasive.
160 We note that we are reaching the opposite result in this dispute – that is, we have found that because
there is an alternative available, the consistency of whic h with US obligations under Article 11.2 is not at issue
in this dispute and must therefore be assumed, the United States is not precluded from providing for a more
limited option for review and possible revocation of an anti-dumping order.

2. Claim under Article X:2 of GATT 1994
(a) Arguments of Mexico
7.178 Mexico claims that USDOC violated Article X:2 of GATT 1994 because it imposed
conditions on TAMSA for the termination of th e anti-dumping duty in advance of the official
publication of such conditions. Mexico argues th at the use of the commercial quantities threshold
requirement constituted a change in the USDOC's pr actice and administration of the law that was not
notified to WTO Members in advance of its application, in violation of Article X:2 of GATT 1994.
(b) Arguments of the United States
7.179 The United States argues that the commercia l quantities requirement was set forth in
regulations published in 1997, prior to the date of the requests for the second, third, and fourth
administrative reviews with respect to OCTG impor ts from Mexico. The United States asserts that
Mexico's claim is not based on a change in the regulation itself, but on an asserted change in
US practice under the regulation. The United States argues that Mexico is incorrect in asserting that
there was a change in US practice under the regulati on. In any event, the United States argues that
"practice" is not a measure for purposes of WTO dispute settlement.
(c) Findings
7.180 Article X:2 of GATT 1994 provides:
No measure of general app lication taken by any contracting party effecting an
advance in a rate of duty or other charge on imports under an established and uniform
practice, or imposing a new or more burdensome requirement, restriction or
prohibition on imports, or on the transfer of payments therefore, shall be enforced
before such measure has been officially published.
7.181 Obviously, since Article X:2 precludes retroactive application of a measure, compliance with
this obligation, and thus questions of alleged violation, will depend on the timing of the publication of
a measure, and its enforcement in particular circumstances affecting the rights of WTO Members.
7.182 Mexico argues in this case that changes in USDOC practice regarding two elements of
USDOC's regulations were not published prior to be ing applied in the instant sunset review. The
regulations in question, sections 351.222(d)(1) and (e )(1)(ii) provide, respectively, that in order for
USDOC to grant revocation of a measure after three consecutive years of no dumping, sales during
that period must be made in commercial quantities, and that an exporter must certify that during the
three consecutive years of no dumping necessary for revocation, sales have been made at commercial
quantities. We will refer to these regulations as the "commercial quantities" requirement.
7.183 The United States submits that the commercia l quantities requirement was introduced in
USDOC's 1997 amendments to its governing regulations , and that the regulations in question were
published on 19 May 1997 in the Federal Register. Th e United States also submits that in that same
publication it was specified that the amendments to the regulation would only become effective for
administrative reviews initiated on the basis of requests made on or after 1 July 1997.
7.184 The 19 May 1997 Federal register does, in fact, set forth these regulations, and does specify
that the amendments in question would only become effective for administrative reviews initiated on
the basis of requests made on or after 1 July 1997.
161 We note that it is undisputed that the initiation

161 62 Fed. Reg. 27296, 27416-27417, 19 May 1997, (Exhibit US-1).

of each of the administrative reviews which served as the basis of Mexican exporters' claims of three
consecutive years of no dumping was based on requests made after 1 July 1997, the effective date for
the amendments to the regulation.
162 Therefore, it is clear that these regulations were, in fact,
published prior to being enforced in the administrative reviews in question.
7.185 Mexico acknowledges these facts, but argues th at the commercial quantities requirement was
not in practice applied by the USDOC until the four th administrative review on Mexican OCTG.
Mexico asserts that this was an "abrupt change in practice" of which the United States failed to give
notice to Mexican exporters. Putting aside the issue of whether "practice" is a measure of general
application which is covered by th e Article X:2 obligations, we find this argument to be without
merit. As stated above, the legal instrument that introduced the commercial quantities requirement
was duly published, and came into effect with respect to administ rative reviews initiated on the basis
of requests made more than one month subsequent to that publication. As of the date of publication,
notice had clearly been given of the substance of th e regulation, and of which cases would be affected
by the regulation. Thus, exporters, including the Mexican exporters involved in the administrative
reviews of OCTG, had notice as to the requirement s imposed by USDOC for requests for revocation
based on three years of no dumping, including the commercial quantities requirement. In support of
its argument, Mexico refers to a case in which the requirement was not applied, without noting that
the administrative review in question was initiated based on a request made prior to the effective date
of the regulation.163
7.186 On the above basis, we reject Mexico's claim that the application of the commercial quantities
requirement in the USDOC determination not to revoke the measure was in violation of Article X:2 of
GATT 1994.
E. ALLEGED INCONSISTENCY WITH ARTICLE VI OF GATT 1994, ARTICLES 1, 18.1 AND 18.4 OF
THE AD AGREEMENT, AND ARTICLE XVI OF THE WTO AGREEMENT
7.187 Mexico argues that any finding by the Panel that the United States acted inconsistently with
any of its obligations under the AD Agreement necess itates a consequential finding that it also acted
inconsistently with Articles 1, 18.1 and 18.4 of the AD Agreement, Article XVI:4 of the
WTO Agreement, and Article VI of the GATT 1994.
7.188 The United States argues that since the measures identified by Mexico with regard to its
substantive claims are not WTO-inconsistent, there can be no consequential violations of the kind
alleged by Mexico.
7.189 Mexico's claims under Articles 1, 18.1 and 18.4 of the AD Agreement, Article XVI:4 of the
WTO Agreement, and Article VI of the GATT 1994 are, as Mexico acknowledges, consequential
claims. That is, any finding of violation under these claims would rest entirely on the basis of a
finding of violation of one or another of the asserte d specific provisions of the AD Agreement. There
are no independent bases for these claims. Thus, addressing these consequential claims would
provide neither the parties nor other Members with additional guidance in te rms of understanding the
obligations established by the AD Agreement. Nor would it aid in implementation of any DSB
recommendation where a violation of one of those oblig ations has been found to exist. We therefore
do not consider it either necessary or appropriate to address these claims, and in the exercise of
judicial economy make no findings with respect to them.

162 The second administrative review was initiated on 25 September 1997 based on a request filed in
August 1997 (Exhibit MEX-4), the third administrative review was initiated on 23 September 1998 based on a
request filed in August 1998 (Exhibit MEX-6), and the fourth administrative review was initiated on
24 September 1999 based on a request filed on 31 August 1999 (Exhibit US-11).
163 Exhibit US-19.

VIII. CONCLUSIONS AND RECOMMENDATIONS
A. CONCLUSIONS
(a) Claims regarding USDOC's sunset review
8.1 With regard to claims regarding the alleged inconsistency of the US statute, 19 U.S.C.
§ 1675a(c)(1)), the Statement of Administrative Action (SAA) (pages 889-890) and the Sunset Policy
Bulletin (SPB) (section II.A.3), with Article 11.3 of the AD Agreement, we conclude the SPB, in
section II.A.3, establishes an irrebuttable presump tion that termination of the anti-dumping duty
would be likely to lead to continuation or recurren ce of dumping, and therefore is, in this respect,
inconsistent, as such, with the obligation set forth in Article 11.3 of the AD Agreement to determine
likelihood of continuation or recurrence of dumping.
8.2 With regard to the determination of USDOC in th e sunset review at issue in this dispute, we
conclude that USDOC acted inconsistently with Article 11.3 of the AD Agreement in that its
determination that dumping is likely to continue or recur is not supported by reasoned and adequate
conclusions based on the facts before it.
8.3 We make no findings concerning Mexico's claims under Articles 2 and 6 of the
AD Agreement in the context of the USDOC sunset review at issue in this dispute.
8.4 We conclude that claims regarding alleged in consistency of USDOC "practice" in sunset
reviews are not within the Panel's terms of reference.
(b) Claims regarding USITC's sunset review
8.5 We conclude that the standard applied by US ITC in determining whet her termination of the
anti-dumping duty would be likely to lead to continua tion or recurrence of injury, is not inconsistent
with Article 11.3 of the AD Agreement as such, or as applied in the sunset review at issue in this
dispute.
8.6 We conclude that the relevant provisions of US law, 19 U.S.C. §§ 1675a(a)(1) and (5)
regarding the temporal aspect of USITC determinatio ns of likelihood of continuation or recurrence of
injury are not, as such, or as applied in the sunset revi ew before us in this dispute, inconsistent with
Articles 3.1, 3.2, 3.4, 3.5, 3.7, 3.8, 11.1, and 11.3 of the AD Agreement.
8.7 We conclude that the USITC did not act inconsistently with Article 11.3 of the
AD Agreement in making its determination of likelihood of continuation or recurrence of injury in the
sunset review at issue in this dispute.
8.8 We conclude that the USITC's determination in the sunset review at issue in this dispute is not
inconsistent with Articles 3.3 and 11.3 of the Agreement because it involved a cumulative analysis.
8.9 We make no findings regarding the remaining asp ects of Mexico's claims under Articles 3.1,
3.2, 3.3, 3.4, 3.5, 3.7 and 3.8 of the AD Agreement.
(c) Claims regarding USDOC's fourth administrative review
8.10 We conclude that USDOC did not act inconsiste ntly with Article 11.2 of the AD Agreement
in determining not to revoke the anti-dumping duty in the fourth administrative review.

8.11 We further conclude that it is not necessary fo r us to address claims under Articles 11.2, 2.4,
and 2.4.2 of the AD Agreement with respect to the calculation of dumping margins in the fourth
administrative review.
8.12 We further conclude that USDOC did not act inconsistently with Article X:2 of the GATT
1994 in the conduct of the fourth administrative review in dispute before us.
(d) Other claims
8.13 We make no findings concerning alleged incons istency with of Article X:3(a) of the GATT
1994 in the administration of US anti-dumping laws, regulations, decisions and rulings with respect to
USDOC's conduct of sunset reviews of anti-dumping duty orders;
8.14 We make no findings concerning asserted subsidiary violations of the provisions of Article VI
of the GATT 1994, Articles 1 and 18 of the AD Agreement, and Article XVI:4 of the
WTO Agreement.
B. R
ECOMMENDATION AND REQUEST FOR SUGGESTION
8.15 Under Article 3.8 of the DSU, in cases where there is an infringement of the obligations
assumed under a covered agreement, the action is considered prima facie to constitute a case of
nullification or impairment of benefits under that ag reement. Accordingly, we conclude that, to the
extent the United States has acted inconsistently with the provisions of the AD Agreement, it has
nullified or impaired benefits accruing to Mexico under that agreement. We therefore recommend
that the Dispute Settlement Body request the United States to bring its measure into conformity with
its obligations under the WTO Agreement.
8.16 Mexico requests that the Panel suggest that the United States implement its recommendation
by immediately revoking the anti-dumping duty on OCTG imports from Mexico. The United States
objects to this request.
8.17 We note that Article 19.1 of the DSU states that WTO panels may suggest ways the Member
concerned could implement their recommendations:
Where a panel or the Appellate Body conclud es that a measure is inconsistent with a
covered agreement, it shall recommend that the Member concerned bring the measure
into conformity with that agreement. In addition to its recommendations, the panel or
Appellate Body may suggest ways in which the Member concerned could implement
the recommendations. (footnotes omitted, emphasis added).
8.18 In the circumstances of the present proceedings, we see no particular reason to make such a
suggestion and therefore decline Mexico's request.