Document: WT/DS268/RW Page B-1 ANNEX B WRITTEN SUBMISSIONS OF THIRD PARTIES Contents Page Annex B-1 Third Party Written Submission of China, People's Republic of B-2 Annex B-2 Third Party Written Submissi on of the European Communities B-10 Annex B-3 Third Party Written Submission of Japan B-16 Annex B-4 Third Party Written Submi ssion of Korea, Republic of B-23
Document codes: WT/DS268/RW
Complainant: Argentina
Respondent: U.S.
Third parties: China, EU, Japan, South Korea, Mexico, Taiwan
Dispute stage: Implementation & Compliance
Agreements cited: Art. 1, 2, 3, 6, 11, 12, 18, Annex II  Anti-dumpingArt. VI, X  GATT 1994Art. XVI:4  Agreement Establishing the World Trade Organization

ANNEX B

WRITTEN SUBMISSIONS OF THIRD PARTIES

Contents Page
Annex B-1 Third Party Written Submission of China, People's Republic of B-2
Annex B-2 Third Party Written Submissi on of the European Communities B-10
Annex B-3 Third Party Written Submission of Japan B-16
Annex B-4 Third Party Written Submi ssion of Korea, Republic of B-23
Annex B-5 Third Party Written Submission of Mexico B-30

ANNEX B-1

THIRD PARTY WRITTEN SUBMISSION OF THE
PEOPLE’S REPUBLIC OF CHINA

Page

I. INTRODUCTION ................................................................................................................. 2
II. CHINA’S VIEWS ON ARTICLE 11.3 OF THE AD AGREEMENT................................ 3
III. COLLECTING NEW INFORMATION IN A REVISED SUNSET REVIEW ............... 3
IV. THE LIKELIHOOD DETERMINATION IN THE SECTION 129
DETERMINATION .............................................................................................................. 5
A. THE USDOC’S REASONING IN TH E SECTION 129 DETERMINATION.....................................5
B. THE USDOC’S FINDING OF LIKELY DUMPING...........................................................................5
C. THE USDOC’S FINDING OF DECLINING OCTG IMPORT VOLUMES .......................................6
D. THE USDOC’S CONSIDERATION OF THE FACTUAL FACTORS AND
CONCLUSION ON LIKELIHOOD OF DUMPING............................................................................7
V. CONCLUSION .................................................................................................................. .... 9

I. INTRODUCTION

1. China welcomes the opportunity to present its views in these proceedings on the dispute
between Argentina and the United States ("US") with respect to the implementation by the US of the
recommendations and rulings of the Dispute Settlement Body ("DSB") on United States – Sunset
Reviews of Anti-Dumping Measures on Oil Country Tubular Goods From Argentina.

2. In this submission, China will fo cus on the following four questions:

 (1) Whether the US Department of Commer ce ("USDOC") is permitted by Article 11.3
of the Agreement on Implementation of Article VI of the General Agreement on
Tariffs and Trade 1994 ("AD Agreement") to rely on the facts newly developed in its
2005 Section 129 proceeding and covering the original sunset review period;

 (2) Whether the finding in the Section 129 Determination that Acindar likely was
dumping during the sunset review period was properly made in line with the
requirement of Article 11.3 of the AD Agreement;

 (3) Whether the finding in the Section 129 De termination that declining import volumes
were apparently resulted from the impos ition of an anti-dumping dumping order
constitutes a reasoned and adequate conclu sion as required by Article 11.3 of the
AD Agreement;

 (4) Whether the USDOC’s consideration of the factual findings and conclusion of
likelihood of dumping were made in a r easoned way as required by Article 11.3 of
the AD Agreement.

3. In China’s view, these issues are closely relate d to this Panel’s assessment on whether the US
has implemented the DSB recommendations and rulings and therefore deserve the attention by the
Panel.

II. CHINA’S VIEWS ON ARTICLE 11.3 OF THE AD AGREEMENT

4. As the issues discussed in this submissi on mainly relate to Article 11.3 of the AD Agreement,
China would like to firstly present its understandi ng of the obligations imposed on investigating
authorities in sunset reviews on the basis of the said provision and WTO jurisprudence.

5. First
, the structure of Article 11.3 indicates that generally the definitive anti-dumping duty
shall be terminated no later than five years. The only exception to this general rule is the case where
the authorities, by means of sunset review, determin e that the expiry of the duty would be likely to
lead to continuation or recurrence of dumping and injury. As observed by the Appellate Body in
US Corrosion-Resistant Steel Sunset Review , Article 11.3 imposes a temporal limitation on the
maintenance of anti-dumping duties and lays down a mandatory rule with an exception.1

6. Second, in a sunset review, the authorities shall play an active rather than a passive decision-
making role with appropriate degree of diligence to arrive at a reasoned conclusion that dumping
would be probable if the duty were terminated. 2 In other words, the investigating authorities must
have a sufficient factual basis to allow it to draw reasoned and adequate conclusions concerning the
likelihood of continuation or recurrence of dumping.3

7. Third, in sunset reviews, the evidence is essential for an affirmative determination though the
nature and extent of the evidence required for the pr oof of likelihood of continuation or recurrence of
dumping and injury will vary with the facts and circumstances of the case under review.4

III. COLLECTING NEW INFORMATION IN A REVISED SUNSET REVIEW

8. Argentina argues that in the 2005 Sec tion 129 Determination, the USDOC acted
inconsistently with Articles 11.3 and 11.4 of the AD Agreement by developing new factual
information to support its 2001 Sunset Review Determ ination. According to Argentina, information
on two of the key factual findings were developed in the 2005 Section 129 proceeding rather than in
the review initiated "at that time" before the expi ration of the original anti-dumping measure. In
Argentina’s view, in relying on new informati on developed in 2005, the USDOC did not render a
decision that brings the US into compliance with its obligations under Article 11.3 and 11.4.5

9. With respect to this issue, China submits the following views for the consideration of this
Panel.

1 Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion -
Resistant Carbon Steel Flat Products from Japan , WT/DS244/AB/R, para. 104 (adopted 9 January 2004)
("US －- Corrosion-Resistant Steel Sunset Review (AB)").
2 Ibid, para. 111.
3 Ibid, para. 114.
4 Appellate Body Report, United States – Anti-Dumping Measures on Oil Country Tubular Goods
(OCTG) from Mexico, WT/DS282/AB/R, adopted 28 November 2005, para. 123 ("US – OCTG from Mexico").
5 Argentina First Submission, para. 57.

10. First
, China notes that neither Article 11.3 of the AD Agreement by itself nor the DSU
prohibits the investigating authorities from collect ing new factual information in the proceedings
intended to bring its WTO-inconsistent measure in to conformity with the DSB recommendations and
rulings.

11. Second
, China notes that the panel in US Countervailing Measures on Certain EC Products
(21.5－EC) made a relevant observation in this respect. In that dispute, the USDOC, in a Section 129
proceeding, refused to consider the additiona l evidence submitted by the respondents in the
proceeding.6 The panel noted that "an investigating authority has the obligation to consider all
evidence placed on the record in making a likelihoo d of continuation or recurrence of subsidization
re-determination. Without so doing, the investigating authority could not ensure that the new
measure, that is, the likelihood-of-subsidizati on re-determination set out in the Section 129
determination, is based on a sufficient factual re cord and therefore satisfies the requirements of
Article 21.3 of the SCM Agreement"7. The panel concluded that, with respect to "evidence provided
for the first time by the interested parties during the Section 129 proceedings. . . . Article 21.3 of the
SCM Agreement imposes an obligation on the investigati ng authority during sunset review or revised
sunset review proceedings to take into account all the evidence placed on its record in making its
determination of likelihood of continuation or recurrence of subsidization".8

12. Therefore, the panel finds that the refusal to consider new evidence presented during the
Section 129 proceedings is inconsistent with the requirement of Article 21.3 of the SCM Agreement.9

13. China submits that the above panel’s ru ling in respect of Article 21.3 of the SCM Agreement
also applies to Article 11.3 of the AD Agreement in this case. The Appellate Body in US Corrosion-
Resistant Steel Sunset Review has noted that Article 11.3 of the AD Agreement is textually identical to
Article 21.3 of the SCM Agreement, except that, in Article 21.3, the word "countervailing" is used in
place of the word "anti-dumping" and the word "s ubsidization" is used in place of the word
"dumping".
10 Consequently, Article 11.3 of the AD Agreement also imposes an obligation on the
investigating authority during revised sunset review proceedings to take into account all the evidence
in record, including newly submitted evidence, in making its determination of likelihood of
continuation or recurrence of dumping.

14. Third
, in this dispute, when finding the inconsistency of the anti-dumping measure at issue
with Article 11.3 of the AD Agreement, the original panel held that such inconsistency stems from two
aspects: (i) the USDOC’s reliance of its finding of continued dumping on the dumping margin found
in the original investigation; (ii) the applica tion of the WTO-inconsistent waivers provisions. In
China’s view, these deficiencies are assumptions that lack in sufficient factual basis. In the attempt to
remedy such deficiencies, the USDOC inevitably n eeds to solicit new factual information and make
objective assessment on such information. If the US DOC is not permitted to seek new information to
adapt its measure, the lack of information would leave the USDOC with no choice but to continue to
apply the methodology found inconsis tent with Article 11.3 of the AD Agreement – making
assumptions.

15. In summary, China holds the view that, in order to bring its measure into compliance with
DSB recommendations and rulings, the USDOC is pe rmitted to solicit and collect relevant factual

6 Panel Report, United States – Countervailing Measures Concerning Certain Products from the
European Communities (21.5 －EC), WT/DS212/RW, para. 7.68 (adopted 17 August 2005)
("US – Countervailing Measures on Certain EC Products").
7 Ibid, para. 7.238. (emphasis added)
8 Ibid, paras. 7.252-7.253. (emphasis added)
9 Ibid, para. 7.255.
10 Appellate Body Report, US Corrosion-Resistant Steel Sunset Review, footnote 114.

information so as to make its determination on a sufficient factual basis. Notwithstanding, China does
not consider that this position necessarily mean s the USDOC’s Section 129 Determination is a
reasoned and adequate conclusion based upon positive evidence.

IV THE LIKELIHOOD DETERMINATION IN THE SECTION 129 DETERMINATION

A. THE USDOC’S REASONING IN THE SECTION 129 DETERMINATION

16. China notes that, during the Section 129 pro ceeding, the USDOC requested information from
three Argentine producers, i.e., Tubhier, Siderca a nd Acindar, none of which filed the statement of
waiver including a statement that the respondent in terested party is likely to dump if the order is
revoked. Therefore, in accordance with the newl y amended US regulations, no producer waived to
participate in the proceedings and thus the USDO C simply made one likelihood determination on an
order-wide basis.

17. During the Section 129 proceeding, it was repor ted by Tubhier and confirmed by the USDOC
that Tubhier did not ship OCTG to the US during the sunset review period and did not intend to ship
to the US in the future. Thus, the USDOC did not make any finding on whether Tubhier had dumped
during the sunset review period.

18. With respect to Siderca, since the USDOC considered the estimated cost information
provided by Siderca was unreliable and Siderca had no US sales of OCTG during the original sunset
review period, the USDOC made "no findings regarding specific instances of likely dumping by
Siderca during the original sunset review period".
11

19. With respect to Acindar, due to its failure to provide data adequate to calculate costs for the
subject merchandise, the USDOC was unable to calculate the costs for Acindar. For that reason, the
USDOC compared Acindar’s US selling prices durin g the original sunset review period with
prevailing US market prices during that same period and found that the former prices were
substantially lower than the latter. In additio n, the USDOC also found supports from the depression
in the OCTG market as indicated by the losses shown by Acindar and other significant OCTG
producers. On such basis, th e USDOC reached the conclusion that Acindar likely was dumping
significantly in the US market.
 12

20, Before reaching its conclusi on on likelihood of dumping, the USDOC referred to its previous
finding regarding the declining import volumes of the subject merchandise for the period before and
the period after the issuance of the anti-dumping duty order. The USDOC concluded that such
declining volumes were "apparently resulting from" the imposition of the anti-dumping measure.

21. On the above basis, the USDOC found that th ere was likelihood of continuation or recurrence
of dumping had the anti-dumping duty order on OCTG from Argentina been revoked in 2000, i.e., at
the end of the original sunset review period.

B. THE USDOC’S FINDING OF LIKELY DUMPING

22. In the Section 129 Determination, USDOC co mpared the export price of Acindar with the
prevailing US market price in reaching its finding of likely dumping in the sunset review period.
Such an approach obviously contradicts with the b asic concept of "dumping" in Article 2.1 of the
AD Agreement which is also applicable to the word "dumping" in Article 11.3.

11 US Section 129 Determination, p. 9.
12 US Section 129 Determination, p. 8-10.

23. In US Corrosion-Resistant Steel Sunset Review, the Appellate Body noted that:

 However, as we have already observed, the opening words of Article 2.1
("[f]or the purpose of this Agreement") go beyond a cross-reference and
indicate that Article 2.1 applies to the entire Anti-Dumping Agreement.
By virtue of these words, the word "dumping" as used in Article 11.3 has
the meaning described in Article 2.1. [footnote omitted]
13

24. Article 2.1 of the AD Agreement clearly provides for a definition of "dumping" which reads as
follows:

 For the purpose of this Agreement, a product is to be considered as being
dumped, i.e. introduced into the commer ce of another country at less than its
normal value, if the export price of the product exported from one country to
another is less than the comparable price, in the ordinary course of trade, for the
like product when destined for consumption in the exporting country.

In addition, Article 2.2 further provides that norma l value can be determined on the basis of export
price to third country or so-called constructed va lue under certain specified circumstances. It is
surprising to note that the US goes so far as to alle ge that "Article 2 does not contain a ‘notion’ of
dumping but rather a methodology for calculating an actual dumping margin"
14. The underlying logic
of the US argument is that given the fact that the US is not calculating a dumping margin, it can then
ignore the concept of dumping and determine "likely dum ping" with whatever criteria it deems fit. In
China’s view, if one does not have a clear view of the concept of dumping or denies the existence of
such a concept, he cannot reasonably make a finding of likely dumping.

25. Thus, the USDOC should have compared Aci ndar’s export price with its domestic sale price
in Argentina (or third-country export prices / c onstructed value) to determine whether Acindar
dumped during the sunset review period. The im proper comparison with the prevailing US market
price led to a flawed finding of "likely dumping" which may not meet the requirement of making a
reasoned and adequate dete rmination on a sufficient factual basis as required by Article 11.3 of the
AD Agreement.

C. THE USDOC’S FINDING OF DECLINING OCTG IMPORT VOLUMES

26. When making the Section 129 Determination, the USDOC also relied on its previous finding
in 2000 sunset review regarding the import volume of the subject merchandise for the period before
and the period after the issuance of the anti-dumping duty order.15

27. China submits that such reliance seems to be inconsistent with Article 11.3 of the
AD Agreement for the following reasons.

28. First
, the US argues that the USDOC can legitim ately rely on its previous finding of
declining import volumes in 2000 in that the origin al panel found no WTO-inconsistency with respect
to such finding.16

29. China does not agree. China r ecalls that in the original dispute, the original panel found that
the USDOC's reliance on the existence of the or iginal dumping margin was inconsistent with

13 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para 126.
14 US First Submission, para. 46.
15 US Section 129 Determination, at pages 4 and 6.
16 US First Submission, para 23.

Article 11.3 of the AD Agreement , and therefore did not need to continue to address whether, as the
second factual basis, the USDOC's reliance on declining import volumes was yet another action
inconsistent with that article.
17 China does not believe the position he ld by the original panel can be
understood to provide a safe haven to the US with resp ect to the said finding. Therefore, the original
panel’s lack of analysis on the issue of declin ing import volumes simply cannot be a valid defending
argument for the US in this proceeding.

30. Second
, China notes that in the Section 129 De termination, the USDOC simply stated,
without any reasoning, that "[d]eclining import volumes after, and apparently resulting from,
imposition of an anti-dumping order indicate that e xporters would need to dump to sell at pre-order
levels".18 The USDOC did not explain why such decline of import volumes is attributable to the
imposition of the order. The word "apparently" indicates that the USDOC reached this conclusion by
assumption instead of reasoning.

31. China submits the USDOC erred in assuming such conclusion, in that the Appellate Body in
US Corrosion-Resistant Steel Sunset Review has clearly pointed out that assumptions are not enough
to support a determination under Article 11.3, and the decline in import volumes could well have been
caused or reinforced by changes in the competitive conditions of the market-place or strategies of
exporters, rather than by the imposition of the duty alone.
19

32. Therefore, the USDOC should have conducted a case-specific analysis of the factors behind
the decline in import volumes in order to determine that dumping will continue or recur if the duty is
terminated. A simple assumption of such causati on is not such positive evidence as to enable the
USDOC to draw a reasoned and adequate affirm ative likelihood determination as required by
Article 11.3 of the AD Agreement.

D. THE USDOC’S CONSIDERATION OF THE FACTUAL FACTORS AND CONCLUSION ON
LIKELIHOOD OF DUMPING

33. In the Section 129 Determination, the ma jor factual bases that the USDOC relied on in
making an affirmative likelihood-of-dumping determin ation are: (i) no findings regarding specific
instances of likely dumping by Siderca during the original sunset review period; (ii) the finding of
likely dumping by Acindar during the original sunset review period; and (iii) the previous finding
regarding the import volumes of the subject merchand ise for the period before and the period after the
issuance of the anti-dumping duty order.

34. Even assuming, for the sake of argument, th at the USDOC properly made a finding of likely
dumping with respect to Acindar by the compar ison between Acindar’s export prices and the
prevailing US market prices, such a finding, in combination with the finding of declining import
volumes, cannot sufficiently support an affirmativ e determination of likelihood of dumping. The
reasons are detailed below.

35. At the outset
, in China’s view, it should be distinguished between "likelihood of continuation
or recurrence of dumping if the anti-dumping duty or der is terminated" and "likelihood of dumping
during the sunset review period". These two concep ts respectively address events that will occur in
the future and events that have occurred in the past.

17 Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular
Goods from Argentina, WT/DS268/R, paras. 6.11 and 7.221 (adopted 16 July 2004) ( US – Oil Country Tubular
Goods Sunset Reviews).
18 US Section 129 Determination, page 11.
19 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 177.

36. According to Article 11.3 of the AD Agreement, the conclusion on likelihood of continuation
or recurrence of dumping is one on future events that should be drawn from the past facts supported
by positive evidence. In US
－ Corrosion-Resistant Steel Sunset Review , the Appellate Body
explained that "the likelihood dete rmination is a prospective determ ination. In other words, the
authorities must undertake a forward-looking analysis a nd seek to resolve the is sue of what would be
likely to occur if the duty were terminated."20

37. On the other hand, the conclusion on likely dumping in the sunset review period is a
speculation of the past facts. At the time of making the review determination, the sales by the
respondent to the US market had been made and whether it had dumped the subject merchandise in
the US was a matter of fact, rather than a possibilit y or likelihood of events that will occur. If the
USDOC decides to rely on such a factual point, it h as to make sure that the fact is supported by
sufficient factual information. In other words, the USDOC can only draw a conclusion of "yes" or
"no" instead of "likely yes". If the USDOC cannot satisfy itself with sufficient evidence that Acindar
was dumping during the sunset review period, then it should not draw any conclusion on it at all.

38. Second
, it is further noted that in its First Written Submission, the US submits that "[n]othing
in Article 11.3 prevents authorities from looking at evidence of past behaviour, or past likely
behaviour where respondents are unable to provide evidence of actual past behaviour". 21 The logic
behind such an argument seems to be that if the respondents fail to provide specific evidence of actual
past behaviour, then the authorities are free to look at evidence of likely past behaviour. But what the
USDOC has done is not just "looking at". Rather, it relied on the finding of likely dumping in
reaching its affirmative conclusion on likelihood of continuation or recurrence of dumping.

39. As articulated by the Appellate Body, under Article 11.3 of the AD Agreement, the authorities
bear the treaty obligations to "arrive at a reasone d conclusion" on the basis of "positive evidence".
The failure by the respondents to provide n ecessary information cannot simply discharge the
authorities of such duties. Instead, under such circumstances, the authorities should follow an
appropriate methodology and rely on positive ev idence on the record to see if it can draw a
permissible conclusion on the likelihood of continuation or recurrence of dumping.

49. Third
, it is noted that in US - Corrosion-Resistant Steel Sunset Review , the Appellate Body
held that,
 We would have difficulty accepting that dumping margins and import
volumes are always "highly probative" in a sunset review by USDOC if
this means that either or both of these factors are presumed, by
themselves, to constitute sufficient evidence that the expiry of the duty
would be likely to lead to continuation or recurrence of dumping. Such a
presumption might have some validity when dumping has continued
since the duty was imposed (as in the first scenario identified in
Section II.A.3 of the Sunset Policy Bulletin), particularly when such
dumping has continued with significant margins and import volumes.
22
[emphasis added]

Therefore, in the view of the Appellate Body, even if dumping has continued with significant
margins and import volumes after the imposition of anti-dumping measure, such facts might only
have some validity in forming an affirmative likelihood conclusion. In this case, the findings made by
the USDOC are far from reaching such a level of cer tainty. The USDOC was only able to conclude
that Acindar was likely dumping during the sunset re view period and it is not even clear whether the

20 Ibid., para. 105.
21 US First Submission, para 46.
22 Ibid, para. 177.

import volume, after the declining following the im position of the anti-dumping duty order, was still
significant. Therefore, it is hard to accept that the likely dumping finding made on Acindar and the
finding of declining import volum es, taken together, could permissibly form the factual bases upon
which the USDOC relied in making a WTO-consistent and corrected sunset review determination.

41. In summary, China submits that the finding of likely dumping and that of declining import
volumes do not seem to form a sufficient factual basis to reach an affirmative conclusion on
likelihood of dumping.

V. CONCLUSION

42. In conclusion, China is of the follo wing views on the key issues discussed above:

 (i) In the revised sunset review, the aut horities are permitted to collect new information
so as to bring its measure into conformity with DSB recommendations and rulings;

 (ii) The US’s finding of likely dumping with respect to Acindar contradicts with the
concept of dumping as provided for by Article 2 and therefore seems to fail to meet
the requirement of making a reasoned and adequate determination on sufficient
factual basis as required by Article 11.3 of the AD Agreement;

 (iii) The USDOC assumed that the declining import volumes were due to the imposition
of the anti-dumping duty order which does not seem consistent with Article 11.3;

 (iv) The findings in respect of likely dumping and declining import volumes do not seem
to constitute a sufficient factual basis for an affirmative determination.

the Anti-Dumping Agreement following the Uruguay Round of negotiations in effect changed nothing,
which would be to reduce the provision to redundancy, which would not be a permissible
interpretation.

4. The European Communities would go further, agreeing with the Appellate Body that the
centre of gravity of that balance lies with terminat ion, rather than continuation. The termination
obligation is in the nature of a general rule; continuation rather in the nature of an exception.
2

5. Because the required determination is partly prospective in nature, investigating authorities
inevitably have a certain leeway when assessing the facts. That cannot, however, render the provision
endlessly elastic, since that would destroy the balance clear ly enough enshrined within the provision.
In fact, precisely the opposite is true. It is pr ecisely because the determination is partly prospective
that investigating authorities must exercise special care when making it. That is, they must be certain
that they have a solid factual basis on which to proceed, and that no stone has been left unturned in the
search for an objective finding. In this respect, Article 3.8 of the Anti-Dumping Agreement provides
relevant context, confirming that when a prospective determination is to be made (in that case, threat
of injury) "the application of anti-dumping me asures shall be considered and decided with special
care". Such determinations are not to be based on mere "allegation, conjecture or remote
possibility"
3, still less on "intuition"4 or "expectation".5 In short, there is ample authority for the view
that the standard of review to be applied by a panel in a given case is a function of the substantive
provisions of the specific covered agreements that are at issue in the dispute; and ample support for
the proposition that, in the case of a provision such as Article 11.3, a panel’s review should be
particularly searching and probative.6

III. ARTICLE 11.3 IN THE CONTEXT OF THE ANTI-DUMPING AGREEMENT:
CONSEQUENCES OF TERMINATION AND CONSEQUENCES OF
CONTINUATION

6. As we indicated in our submissions to the original panel, interpreting Article 11.3 in a
balanced manner requires consideration of that provision in the context of the Anti-Dumping
Agreement as a whole.

7. In this respect, it is relevant to take into consideration what the consequences of termination
may be, and particularly how quickly a new measu re could be put in place, should that prove
necessary.

8. In that regard, the EC notes that there is no time requirement governing the filing of an
application under Article 5.1: as soon as dumpi ng occurs an application may be filed, where
necessary based on a submission of threat of injury under Article 3.7 of the Anti-Dumping Agreement.
Initiation of an original investigation may proceed forthwith, with measures being imposed 60 days

2 Appellate Body Report, US – Carbon Steel , para 88: "An automatic time-bound termination of
countervailing duties that have been in place for five years from the original investigation or a subsequent
comprehensive review is at the heart of this provision. Termination of a countervailing duty is the rule and its
continuation is the exception."
3 Anti-Dumping Agreement, Article 3.7: "A determination of threat of material injury shall be based on
facts and not merely on allegation, conjecture or remote possibility".
4 Article 11.3 re-determination, page 8, fourth para , rejecting Siderca's data on the grounds that it is
"counter-intuitive".
5 Article 11.3 re-determination, page 8, fourth para, rejecting Siderca's data on the grounds that it is not
what "we would expect".
6 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada), paras 95 and 96.

later
7, or even, if there is a history of dumping, from the date of initiation. 8 Thus, if appropriate, anti-
dumping measures can be imposed at very short notice indeed.

9. It is also relevant to take into consider ation what the consequences of continuation of the
measure are. In this respect, the EC recalls th at the US operates a system of duty collection under
Article 9.3.1 of the Anti-Dumping Agreement in which, at least according to the US, final liability for
payment of anti-dumping duties can actually increase retrospectively. This means that, at the time of
import, the exporter and importer w ill not know what the final liability might be, there being no cap,
in place at the time of import, limiting such final lia bility. Given the comple xity of the anti-dumping
rules and thus the very many aspects of an inve stigation in which an authority may exercise
discretion, and given the difficulty of ensuring effective judicial protection, there is no doubt that this
has a substantial chilling effect. In fact, an exporter may be hard pushed to find any importer willing
to take the risk of importing under the shadow of an uncertain and potentially very much increased
liability; or indeed prepared to take such risk itself via a related importer.

10. Taking these matters fairly in to consideration, one can perf ectly understand why an exporter
that has not dumped for five years or more might reasonably hope and expect to have the "sword of
Damocles" lifted from its head, and be given anothe r chance to play by the rules – particularly an
exporter whose original offence was to "dump" by a mere 1.36 per cent.
9

11. On the other hand, it is something of a puzzle to understand why an investigating authority,
which is under an obligation to conduct an objective and even-handed enquiry, might seek to maintain
a measure in place at all costs and on the basis of the most brief and tenuous analysis, unless, of
course, it were driven by purely protectionist considerations.

IV. RELIANCE ON ORIGINAL DUMPING MARGIN AND DECLINE IN IMPORTS
INSUFFICIENT

12. As stated in our submissions to the origin al panel, the EC draws a distinction between
continued dumping and recurrent dumping, the latter being a phenomenon necessarily interrupted at
some point. Further, the EC takes the view that this is now a case of a determination of likely
recurrent dumping. The only "dumping" determination that has ever been made is that made in the
original investigation. There is no dumping dete rmination made in relation to the sunset review
period (1995 to 2000). Further, there is no objective attempt to gather all the information necessary to
make any such determination, the USDOC questio nnaires not covering all the matters set out in
Article 2 of the Anti-Dumping Agreement .
10 The US appears to have simply made a prospective
determination about what "will" happen after 7 No vember 2000 (a somewhat surreal finding, given
that some 5 years have since passed), based only on other data from the years 1995 to 2000. Thus,
there is simply no basis for a determination of likely continuation of dumping; or of likely recurrent
dumping after 2 November 2005.

13. The EC agrees with Argentina that it is re markable that the Artic le 11.3 re-determination
makes no express reference at all to the original 1.36 per cent "dumping" determination from the

7 Anti-Dumping Agreement , Article 7.3: "Provisional measures shall not be applied sooner than
60 days from the date of initiation of the investigation.".
8 Anti-Dumping Agreement, Article 10.6: "A definitive anti-dumping duty may be levied on products
which were entered for consumption not more than 90 days prior to the date of application of provisional
measures, when the authorities determine …".
9 A percentage that is act ually less than the current de minimis rule of 2 per cent in Article 5.8 of the
Anti-Dumping Agreement.
10 See USDOC questionnaires to Acindar, Tubhier and Siderca, at Exhibit ARG-13.

original proceeding; and that th is renders the countrywide determ ination of likely recurrence of
dumping based only on the unsubstantiated assertion th at a marginal producer and exporter (Acindar)
was "likely" dumping during the sunset review period tenuous in the extreme.

14. However, consistent with its submissions to the original panel, the EC remains of the view
that, even if in a sunset review an investiga ting authority does not re-determine the dumping finding
made in the original investigation, neverthel ess it cannot avoid but "rely" on such original
determination. This is so whether or not the or iginal determination is expressly mentioned in the
sunset review determination. That this is so results directly from the use of the words "continuation or
recurrence", both of which necessarily incorporate some historical element. If there is nothing in the
past, then there is nothing that can continue or recu r in the future. This may be seen most clearly if
one would simply eliminate the original "dumping" determination, for example by assuming that it
would never have been made, or by assuming that it would have been invalidated following judicial
review. In such a case, there could simply be no sunset review. One cannot have a valid sunset
review without at the very least having a valid determ ination of dumping in an original investigation.
The EC concludes that, even if the US has studious ly avoided any express reference to the original
dumping determination, the fact remains it is a necessary pre-requisite for the Article 11.3
re-determination.

15. Consistent with its submissions to the original panel, the EC remains of the view that reliance
on the original dumping margin and decline in impo rts (effectively the line taken in the Article 11.3
re-determination) is not sufficient to justify cont inuation of the measure. The minimum meaning of
Article 11.3 of the Anti-Dumping Agreement is that some determination of dumping more recent than
that made in the original proceeding is necessary in order to continue the measure.
11

V. ZEROING

16. Consistent with its submissions to the orig inal panel, the EC takes the view that it is
impossible to conduct a sunset review, and make a finding of likely continuance or recurrence of
dumping, without having in place and relying on as a basic foundation an historical determination of
dumping. In this case that foundation is the 1.36 pe r cent calculated in the original proceeding.
However, the EC recalls that it is not in dispute that that "dumping" determination was based on the
use of zeroing, a methodology that the Appellate Body has repeatedly held to be inconsistent with the
Anti-Dumping Agreement and with Article VI of the GATT 1994.12 The Appellate Body has also held
that if a sunset review is based on a past dumpi ng determination that is inconsistent with the Anti-
Dumping Agreement, the sunset review is itself also vitiated. 13 The original panel exercised judicial
economy on this point because it found an inconsistency with Article 11.3. 14 However, to the extent
that the US now alleges that it h as complied with Article 11.3, this panel may now need to reconsider
the zeroing issue.

17. As outlined in its submissions to the original panel, the EC considers that the fact that the
original determination was made under the Tokyo Round Code affords no defence to the US, for two
reasons. First, the Appellate Body has now made it clear that zeroing is and in fact was always
inconsistent with Article VI of the GATT 1994, whic h is identical in this respect to the GATT 1947.

11 Appellate Body Report, US – Carbon Steel, para. 88: "Mere reliance by the authorities on the injury
determination made in the original investigation will not be sufficient."
12 Appellate Body Report, US – Zeroing, paras 123 to 135.
13 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 127: "should
investigating authorities choose to rely upon dumping margins in making their likelihood determination, the
calculation of these margins must conform to the disciplines of Article 2.4."
14 Panel Report, para. 7.223.

It is thus not the case that the original determ ination was consistent with the GATT or the Tokyo
Round Code. Second, in any event, in the present case, the investigating authority is charged with
making a determination about likely future dumping as that term is defined under the Uruguay Round
Anti-Dumping Agreement , that is, without zeroing. The most that USDOC might be said to have
demonstrated, even on its own logic, is that the phenomenon that arose in the original investigation
period might again arise in the future. However, that phenomenon is simply not "dumping" within the
meaning of Article 11.3 of the Anti-Dumping Agreement.

18. Finally, the EC is perplexed by the US refere nce to the results of the Acindar review for the
2000 to 2001 period.
15 First, this is not mentioned anywhe re in the Article 11.3 re-determination.
Second, this information falls outside the 1995 to 2000 investigation period fixed by USDOC for the
purposes of its sunset review re-determination. The US thus appears to be "cherry picking" –
erroneously ignoring vast amounts of data from the last 5 years 16, but nevertheless selecting particular
data considered prejudicial to the interests of th e exporters. These are not the actions of an even-
handed investigating authority conduc ting an objective examination. Third, as the US perfectly well
knows, that 2000 to 2001 determination for Acindar was itself vitiated by zeroing, a methodology that
the Appellate Body has repeatedly he ld to be inconsistent with the Anti-Dumping Agreement and the
GATT 1994. It could not therefore lawfully be relied on by the US for the purposes of the present
sunset review re-determination.

VI. AUTOMATIC DUMPING IN A DEPRESSED MARKET CYCLE

19. One further aspect of the logic underlying the Article 11.3 re-determination appears to the EC
to be at odds with the Anti-Dumping Agreement. That is the apparent assumption by the investigating
authority that at a stage of the market cycle where global prices are relatively depressed, all producers,
in Argentina, the US and elsewhere, will be selling be low cost, with the consequence that there is an
automatic assumption that dumping is occurring. This seems to explain why the investigating
authority did not even attempt to examine domestic prices in Argentina, or the prices at which
producers in Argentina may have been exporting to third countries.
17

20. The problem with this approach is that it turns the Anti-Dumping Agreement from an
instrument designed to respond to specific unfair prac tices by exporters, into a general protection for
US industry whenever "times are bad". When times are good, everyone does well, and competition
between producers is likely to be effectively reduced or even non-existent. It is precisely when times
are bad that competition really bites and plays its necessary role in regulating market efficiency.

21. The key to this issue lies in the concept of th e "extended period of time" in Article 2.2.1 of the
Anti-Dumping Agreement. In a cyclical industry, such as that at issue in the present case, such period
of time must be sufficient to cover at least one full cycle.
18 Otherwise, by simply focussing on a
depressed part of the cycle, investigating authoriti es will always be in a position to find dumping, or
assume that dumping will automatically occur, even if , in the longer term, pricing is above cost, and
export prices not below normal value. It appears to the EC that the reasoning in the Article 11.3 re-

15 US First Written Submission, para. 41, final sentence.
16 Appellate Body Report, Mexico – Beef and Rice, paras 165 and 166.
17 See USDOC questionnaires to Acindar, Tubhier and Siderca, at Exhibit ARG-13.
18Appellate Body Report, EC – Tube or Pipe Fittings , para. 80: "… we understand a POI to provide
data collected over a sustained period of time, which period can allow the investigating authority to make a
dumping determination that is less likely to be subject to market fluctuations or other vagaries that may distort a
proper evaluation."

determination is vitiated by just such an assumption. 19 In fact, ironically, it appears to the EC that the
depressed market situation could just as well explai n the lack of exports during the sunset review
period, as could the imposition of the original measures. Thus, all the indications are that this is an
investigation in which the authority has arranged the facts to suit a pre-determined conclusion, rather
than conduct an objective and even-handed analysis.

VII. CONCLUSION

22. In the light of the preceding observations, the EC invites the panel to agree with Argentina,
and to conclude that the US has failed to comp ly with its obligations under Article 11.3 of the Anti-
Dumping Agreement, and failed to take measures that comp ly with the findings and recommendations
of the DSB in the original dispute.

19 Article 11.3 re-determination, page 7: "… the financial statements of other significant OCTG
producers … also were showing losses … These losses are an indication that the OCTG market was depressed."

2. Japan has a systemic interest in the interp retation and application of the AD Agreement with
regard to sunset reviews. Also , Japan has a systemic interest in ensuring the proper compliance with
the DSB recommendations. As a third party, Japan would like to address the following legal issues
raised by Argentina’s First Written Submission:

– Inconsistency of the US Department of Commerce (the "DOC")’s determination pursuant
to Section 129 of the URAA ("Section 129 Determination") with its obligations under
Article 11.3 of the AD Agreement;
– Inconsistency of the DOC's Section 129 Determination with its obligations under Article 6
of the AD Agreement;
– Inconsistency of the Section 751(c)(4)(B) of the Customs Act of 1930, and the amended
Section 351.218(d)(2) of the DOC Regulations under Article 11.3 of the AD Agreement.
II. ARGUMENTS

A. THE DOC’S SECTION 129 DETERMINATION IS INCONSISTENT WITH ARTICLE 11.3 OF
THE AD AGREEMENT AS APPLIED

1. Article 11.3 of the AD Agreement app lies to proceedings under Section 129 of the
URAA.

3. It is clear that Article 11.3 applies to pr ocedures and determinations under Section 129. In
order to comply with DSB recommendations and rulings, a respondent Member must abide by the
provisions of the covered agreement, in th is case the AD Agreement. The Panel in US – EC Product
(21.5) reasoned as follows:

7.237 From the review of the findings of the Appellate Body and the panels in relevant
previous cases, it is clear that under Article 21.3 of the SCM Agreement, the investigating
authority has an obligation in sunset review pr oceedings to consider all evidence placed on its
record to make a likelihood of subsidization and likelihood of injury determination. The Panel
considers that the same obligation also app lies to the Section 129 proceedings regarding the
UK in the present dispute since it was designed to make revised sunset review determinations.

7.238 The Panel therefore concludes that an investigating authority has the obligation to
consider all evidence placed on the record in making a likelihood of continuation or recurrence
of subsidization re-determination. Without so doing, the investigating authority could not
ensure that the new measure, that is, the like lihood-of-subsidization re-determination set out in
the Section 129 determination, is based on a sufficient factual record and therefore satisfies the
requirements of Article 21.3 of the SCM Agreement.1

References here to Article 21.3 of the SCM Ag reement apply equally to Article 11.3 of the
AD Agreement, in view of the Ministerial Decl aration on Dispute Settlement Pursuant to the
Agreement on Implementation of Article VI of th e General Agreement on Tariffs and Trade 1994 and
Part V of the Agreement on Subsidies and Countervailing Measures.
2

1 Panel Report, United States – Countervailing Measures Concerning Certain Products from the
European Communities - Recourse to Article 21.5 of the DSU by the European Communities ,WT/DS212/RW,
adopted on 27 September 2005, paras. 7.237 and 7.238 (emphasis added).
2 Ibid., para. 7.81.

4. Japan also recalls that an Article 21.5 proceedi ng is not confined to the claims of the original
dispute. Because the Member subject to the DS B recommendations and rulings must make its re-
determination in compliance with the WTO Agreements
3, the complaining Member may raise new
claims if the re-determination does not comply with provisions of the WTO Agreements. The
Appellate Body confirmed this aspect, stating "a complainant in Article 21.5 proceedings may well
raise new claims, arguments, and factual circumstances different from those raised in the original
proceedings, because a ‘measure taken to comply’ may be inconsistent with WTO obligations in
ways different from the original measure".
4

5. Therefore, in order to determine whether th e re-determination of the likelihood of dumping is
consistent with the AD Agreement, the Panel is required to review whether the re-determination
satisfies all requirements for the determination und er Article 11.3 and other relevant requirements
under the AD Agreement.

2. The DOC’s determination of the likelihood of dumping is inconsistent with Article 11.3,
due to the lack of an objective examination of positive evidence

6. Japan respectfully requests th at the Panel carefully review whether the DOC’s reliance on the
"previous finding" in re-determining the likelihood of dumping is consistent with Article 11.3 of the
AD Agreement. As shown by the US’s First Wr itten Submission, the DOC determined the order-
wide likelihood of dumping on the basis of two findings : first, that Acindar is likely to dump, and
second, that the decline in import volumes indi cates the likelihood of dumping if the duty were
revoked.
5 The Unites States argues that the DOC’s finding also referenced "its finding from the
original proceeding that the decline in import vol umes was evidence of likelihood of continuation or
recurrence of dumping".6

7. As mentioned above, the Member subject to the DSB recommendations and rulings is
required to make its re-determination in complian ce with the WTO Agreement, including issues that
were not raised in the original Panel. The aut horities of the anti-dumping proceeding are required to
review all the evidence on the record objectively 7, and reach a reasoned conclusion. 8 I n i t s
Section 129 proceeding, the DOC collected several kinds of new information. The evidence on the
record of the proceeding, therefore, is different fro m the evidence on the record of the original sunset
review. The DOC is therefore required to make its-determination based on the objective evaluation of
all evidence on the record of the Section 129 proceed ing, including newly collected information, so
that it will be in compliance with the WTO Agreement.9

3 Article 21.5 of DSU provides that an Article 21.5 proceeding covers "the existence or consistency
with a covered agreement of measures taken to comply with the recommendations and rulings" (emphasis
added).
4 The Appellate Body Report, European Communities － Anti-Dumping Duties on Imports of Cotton-
Type Bed Linen from India - Recourse to Article 21.5 of the DSU by India , WT/DS141/AB/RW, adopted on
24 April 2003, para. 79.
5 Decision Memorandum of the Section 129 Determination, at 11; US First Written Submission,
paras. 42, 46-48.
7 Panel Report, para. 7.211.
8 The Appellate Body confirmed this obligation of the authorities, stating "authorities conducting a
sunset review must act with an appropriate degree of diligence and arrive at a reasoned conclusion on the basis
of information gathered as part of a process of reconsideration and examination." The Appellate Body Report,
United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products from
Japan, WT/DS244/AB/R, adopted on 9 January 2004, para. 111.
9 Japan makes this statement without prejudice to the primary argument made by Argentina in
paragraph 39 of Argentina's First Written Submission.

8. The lack of a specific finding by the original Panel on the inconsistency of the DOC’s finding
on the decline in import volumes in the original sunset review cannot be a ground for arguing that the
DOC has no obligation to review the original finding in light of evidence on the record of the Section
129 proceeding, as the DOC appears to argue in the Decision Memorandum of Section 129
Determination.
10 Since Japan takes part in this proceed ing based on a systemic interest in the
interpretation and application of the AD Agreemen t, Japan does not take any specific position on the
factual aspect of this issue. Japan respectfully re quests the Panel to review carefully whether the
DOC objectively found the fact of the decline in volume and reasonably reached its conclusions
in the re-determination, giving due considerations to all evidence on the record of the Section 129
proceeding.

B. THE DOC’S SECTION 129 D ETERMINATION IS INCONSISTE NT WITH ARTICLE 6 OF THE
AD AGREEMENT AS APPLIED

1. Article 6 of the AD Agreement applies to the proceedings under Section 129 of the
URAA

9. The logic for the application of Article 11. 3 in conducting the Section 129 procedure, as
discussed above (in paragraphs 3-4), applies equa lly to the application of Article 6 of the
AD Agreement.

10. In this case, the original Panel and Appellate Body found that the DOC’s determination in the
sunset review is inconsistent w ith Article 6.2 of the AD Agreement. The original Panel found that
"the fact that certain exporters do not participat e in a sunset review can not justify depriving
cooperating exporters of their procedural rights under Article 6.2", in respect of hearings.
11 The Panel
accordingly found that the DOC acted inconsistently with Article 6.2. The Appellate Body also stated
that "in respect of respondents to which [waive r] provisions cannot be applied, the USDOC will
continue to make automatically an affirmative co mpany-specific determination and to deny the rights
afforded by Articles 6.1 and 6.2 of the Anti-Dumping Agreement" in respect of waiver provisions.12

11. Article 6.2 guarantees the fundamental due process of the anti-dumping proceedings. 13 This
general due process requirement is an overarchi ng provision, which includes specific due process
requirements in other paragraphs of Article 6. These specific requirements include, among other
requirements, a timely opportunity to see all informat ion in Article 6.4, and the disclosure of essential
facts under Article 6.9.

12. In the implementation procedures, therefore, the US must give "a full opportunity" to
interested parties to present their views in accordan ce with Article 6.2, including specific due process
requirements, take the views presented into account , and reach a reasoned conclusion. Without these
procedures, any re-determination would not be consis tent with the requirements for a sunset review
determination.

10 Decision Memorandum; Section 129 Determination: Final Results of Sunset Review, Oil Country
Tubular Goods from Argentina (16 December 2005) ("Decision Memorandum") (Exhibit ARG-16), pages 2
[fn.4] and 6 [fn.12]; see Argentina's First Written Submission, para. 60.
11 Panel Report, para. 7.235.
12 Appellate Body Report, para. 269.
13 The Panel in Guatemala - Cement II similarly stated that "We interpret the first sentence of
Article 6.2 of the AD Agreement as a fundamental due process provision." Guatemala – Definitive Anti-
Dumping Measures on Grey Portland Cement from Mexico (" Guatemala – Cement II "), WT/DS156/R,
17 November 2000, para. 8.179.

13. It should be noted, however, that compliance with the due process requirements did not
require the DOC to conduct another full sunset revi ew in the Section 129 proceeding. The DOC had
to ensure due process to the extent it made a re-d etermination pursuant to Section 129 to implement
the DSB recommendations and rulings.

2. The DOC’s determination of the likelihood of dumping is inconsistent with Article 6 of
the AD Agreement, due to inadequacies in due process procedures

14. Argentina argues that the DOC failed to disclo se the essential facts which formed the basis of
the re-determination.
14 Article 6.9 of the AD Agreement requires that the authorities must disclose
the essential facts to interested part ies before the final determinati on. It also requires that the
disclosure must take place in sufficient time for the parties to defend their interests. These explicit
provisions recognize that the disclosure of the essen tial facts is an indispen sable element to ensure
that interested parties have a full opportunity for defence of their interests under Article 6.2.

15. As discussed above, it is clear that the DOC must conduct the present Section 129 proceeding
in accordance with the requirements of Article 6. It appears that the DOC did not make a disclosure
of essential facts in accordance with Article 6.9. Th e US, therefore, appears to have failed to provide
a full opportunity to responding parties in the pro ceeding, and thus acted inconsistently with
Article 6.9, and consequently with Article 6.2.

16. Argentina also argues that the DOC failed to make certain information available to
responding parties during the re-determination process. 15 Article 6.4 of the AD Agreement requires
that the authorities provide "timely opportunities for all interested parties to see all information that is
relevant to the presentation of these cases". As discussed above, this procedural requirement is part of
the fundamental due process requirement under Article 6.2. Thus, any proceeding inconsistent with
Article 6.4, therefore, is also inconsistent with Article 6.2.

17. Japan does not take any specific position whet her the memoranda cited by Argentina in its
First Written Submission
16 in fact contain information that was not made available to responding
parties. Japan respectfully requests that this Panel closely review these memoranda in deciding
whether DOC made all information available to r esponding parties in compliance with Articles 6.2
and 6.4.

18. Argentina also made the following arguments : DOC’s failure to provide explanation of
reasons in rejecting evidence subm itted by the interested parties
17 and DOC’s recourse to the facts
available are inconsistent with Article 6.8 and Annex II. 18 Again, Japan does not take any specific
position on the actual facts in this proceeding. Jap an, however, respectfully request that the Panel
carefully review the facts of the 129 proceeding relating to the DOC’s compliance with the due
process requirements under Article 6.2 and its subsequent provisions.

19. The US’s attempts to justify such failures in its First Written Submission do not constitute a
removal of defects made in the course of Sec tion 129 procedures. The arbitrator has set the
reasonable period of time for the implementation, upon reviewing all necessary elements for the
implementation argued by the US. Members have an obligation to respect and abide by the

14 Argentina's First Written Submission, paras. 187-193.
15 Ibid., paras. 153-163.
16 Ibid., paras.157-163.
17 Ibid., paras. 171-173.
18 Ibid., paras. 174-186.

arbitrator’s decision. A Member should not be allowed to disregard the timeframe set by the
arbitrator, because its argument was not fully accepted by the arbitrator.19

20. In addition, a failure to let the interested parties know the availability of a hearing constitutes
another procedural defect in this particular case. The US argued that there was no request for a
hearing. Upon simple reading of provisions of Article 6.2, the argument by the US might appear
correct. What is problematic, however, is the failu re of the DOC to provide interested parties an
opportunity for requesting a hearing. As the original Panel explained in para graph 7.235 of the Panel
Report, it is the general practice of the DOC not to ho ld hearings in expedited sunset reviews; and the
original Panel found such practice inconsistent with Article 6.2. With this practice, the interested
parties may well be made unaware of their rights and the administrative procedures under US laws to
request hearings in the course of the Section 129 pr oceeding. Considering that the Panel specifically
found the DOC’s failure to hold a hearing inconsistent with Article 6.2, the DOC should have notified
the interested parties their right of and the proce dures necessary to request a hearing. Under this
particular situation, the fault is not the inaction of the interested parties but inaction of the DOC that
made the present Section 129 proceeding short of meeting the due process requirement. Therefore,
Japan supports the argument made by Argentina in Sec tion IV.D.2, in particular paragraph 151, in its
First Submission.

C. THE IMPLEMENTATION BY THE UNITED STATES OF THE WAIVER PROVISIONS
REMAINS INCONSISTENT WITH ARTICLE 11.3 OF THE AD AGREEMENT AS SUCH

21. The original Appellate Body found that "S ection 751(c)(4)(B) of the Tariff Act of 1930 and
Section 351.218(d)(2)(iii) of the USDOC Regulations are inconsistent, as such, with Article 11.3 of
the Anti-Dumping Agreement ".20 This finding was made because the "statutorily-mandated
assumption about a company's likelihood of dumping…is inconsistent with the obligation of an
investigating authority under Article 11.3 to ‘arrive at a reasoned conclusion’ on the basis of positive
evidence"21 (emphasis in original).

22. To comply with the DSB’s recommendations and rulings, the US amended
Section 351.218(d)(2)(iii) of the DOC regulation. The amended Section 351.218(d)(2)(iii) of the
DOC Regulation requires the respondent who applies for a waiver to submit a statement that such
respondent is likely to dump. When submitted, these provisions oblige the DOC to determine the
likelihood of dumping with respect to the exporter.

23. The implementation by the US does not comply fu lly with Article 11.3 of the AD Agreement.
While the waiver statement would have certain probative value in many cases as argued by the US
22,
the authorities can assess the value of such evidence only after examination of all other evidence on
the record of the individual proceeding. S ection 751(c)(4)(B) of the Tariff Act of 1930 and the
amended Section 351.218(d)(2)(iii) leave no room for the DOC to review any other evidence that
reaches a different conclusion, even if the ot her evidence have more probative value than the
exporter’s statement. For example, even where im porters effectively demonstrate that they will not
import any dumped products in the future, the DOC is still obliged to find that the dumping is likely
to occur with respect to the exporter.

24. As stated above, the Appellate Body explicitly stated that the affirmative waiver provision is
"inconsistent with the obligation of an investig ating authority under Article 11.3 to ‘arrive at a

19 See e.g., US First Written Submission, paras. 53, 65 and 78.
20 Appellate Body Report, para. 235.
21 Ibid., para. 234.
22 US Submission, paras. 17-19.

reasoned conclusion’ on the basis of 'positive evidence'".
23 The Appellate Body’s statement is based
on the fundamental obligation of the authorities to make its determination on objective assessment of
all evidence on the record under Article 11.3. In connection with this presumption, the Appellate
Body clarified that "[p]rovisions that create ‘irrebuttable’ presumptions, or ‘predetermine’ a particular
result, run the risk of being found incons istent with this type of obligation". 24 These statements
clarify the fact that the predetermined result b ased on single evidence without examination of any
other evidence on the record would be inconsistent with Article 11.3.

25. Japan, therefore, respectfully submit that Section 751(c)(4)(B) of the Tariff Act of 1930, in
combination with the amended Section 351.218(d)(2)(iii) of the DOC Regulation, is inconsistent with
Article 11.3 of the AD Agreement.
25 Japan accordingly supports the argument made by Argentina in
Section V.B, in particular paragraphs 203 and 207, of its First Written Submission.

III. CONCLUSION

26. For the foregoing reasons, Japan respectfully requests the Pane l to find that the US acted
inconsistently with Articles 6 and 11.3 of the AD Agreement.

23 Appellate Body Report, para. 234.
24 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 191.
25 This does not assume these two provisions are necessarily "taken together" as argued by the US.

found that "revocation of the anti-dumping duty orde r would be likely to lead to continuation or
recurrence of the dumping".
1

4. In Korea’s view, however, the new determin ation still fails to abide by the terms and
conditions of Article 11.3 of the AD Agreement. Setting aside the "timing" issue being vehemently
challenged by Argentina in its first submission, wh ere it points out that the determination was issued
more than five years after the date when the orde r was supposed to expire and nearly eleven years
after the imposition of the original order, Korea notes that the United States continues to fail to prove
that its OCTG anti-dumping sunset review is s upported by positive evidence and sufficient factual
bases as provided in Article 11.3 of the AD Agreement. Korea also shares the view of Argentina that
the 129 determination constitutes violation of various provisions of Article 6 of the AD Agreement

5. Article 11.3 of the AD Agreement unequivocally states that the unambiguous intent of the
drafters at the Uruguay Round was to impose a five-y ear temporal period on any anti-dumping order.
In Korea’s opinion, the 2005 US attempt to "compl y" with its Article 11.3 obligations in this case by
resorting to information which could never have been possibly available to it during the original
sunset review in 2000 would render a nullity the temporal limitation on anti-dumping orders. If this is
allowed, an investigating authority could arbitrar ily justify an otherwise illegitimate extension of
existing anti-dumping orders. This would constitute di rect violation of the principle of "effective"
interpretation which has been consistently adopted and applied by the Appellate Body.
2

6. Simply put, Korea reiterates the obvious: (i) if, as in this case, the likelihood of dumping
determination undertaken at the required time wa s not supported by positive evidence, then the
Member has no right to extend the measure, and (ii) if the Member cannot justify its original sunset
review determination based on information and data reasonably available at that time, the only way to
remedy its WTO-inconsistent sunset review is to terminate the underlying anti-dumping order as soon
as possible.

7. Korea therefore generally supports the arguments raised by Argentina in its first submission.
Rather than covering all the arguments, however, Korea will address in this submission certain critical
issues.

II. LEGAL ARGUMENTS

A. USDOC’S SECTION 129 DETERMINATION STILL FAILS TO IMPLEMENT THE
RECOMMENDATIONS AND RULINGS OF THE DSB AND THE COMPLIANCE CAN BE ONLY
ACHIEVED THROUGH REVOCATION OF THE ORDER

8. Neither the USDOC’s sunset review determin ation on Argentine OCTG in 2000 nor its 2005
re-determination complies with Article 11.3 of the AD Agreement.

9. In Korea’s view, in making the 2005 Secti on 129 determination the USDOC did not establish
a sufficient factual basis of positiv e evidence necessary to support a WTO-consistent finding of likely
dumping. Nor did the USDOC objectively assess the information collected in this regard. Its

1 United States Department of Commerce, Issues and Decision Memorandum, Section 129
Determination: Final Results of Sunset Revi ew, Oil Country Tubular Goods from Argentina , A-357-810
(16 Dec. 2005).
2 For example, the Appellate Body applied this princi ple by stating that an interpretation that renders
"inutile" a provision of a covered agreement would be "a bhorrent to the principles of interpretation we are
bound to apply." United States – Import Prohibition of Certain Shrimp and Shrimp Products , WT/DS58/AB/R,
adopted 6 November 1998, para. 121.

conclusions, therefore, are not reasoned, and the evidence it developed does not support a WTO-
consistent determination that dumping would be likely.

10. Article 11.3 of the AD Agreement provides as follows:

 Notwithstanding the provisions of paragraphs 1 and 2, any definitive
anti-dumping duty shall be terminated on a date not later than five years
from its imposition (or from the date of the most recent review under
paragraph 2 if that review has c overed both dumping and injury, or under
this paragraph), unless the authorities dete rmine, in a review initiated before
that date on their own initiative or upon a duly substantiated request made by
or on behalf of the domestic industry within a reasonable period of time prior
to that date, that the expiry of the duty would be likely to lead to continuation
or recurrence of dumping and injury. The duty may remain in force pending
the outcome of such a review.
On the other hand, Article 11.4 of the AD Agreement provides that:
 The review conducted under Article 11. 3 shall be carried out expeditiously
and shall normally be concluded within 12 months of the date of initiation of
the review.
As such, these two provisions show the following: Article 11.3 provides that, notwithstanding the
provisions of Articles 11.1 and 11.2, Members "shall" terminate an anti-dumping duty order "unless"
the authorities make an affirmative likelihood dete rmination in a sunset review; and Article 11.4
contemplates that the sunset review process may take up to one year.

11. These phrases in the Articles have been inte rpreted by the Appellate Body as follows:

 The text of Article 11.3 contains an obligation "to determine" likelihood
continuation or recurrence of dumping and injury….[I]t is clear that the
investigating authority has to determine, on the basis of positive evidence, that
termination of the duty is likely to lead to continuation or recurrence of dumping
and injury. An investigating authority must have a sufficient factual basis to
allow it to draw reasoned and adequate c onclusions concerning the likelihood of
such continuation or recurrence
.3

In fact, this principle was reaffirmed by the Appellate Body in the present dispute, where it stated that:

The plain meaning of the terms "review" and "determine" in Article 11.3,
therefore, compel an investigating authority in a sunset review to undertake an
examination, on the basis of positive evidence, of the likelihood of continuation
or recurrence of dumping and injury. In drawing conclusions from that
examination, the investigating authority must arrive at a reasoned determination
resting on a sufficient factual basis; it may not rely on assumptions or
conjecture.
4

3 United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat
Products From Japan, WT/DS244/AB/R, adopted 9 January 2004, para. 114 (emphasis added).
4 United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from
Argentina, WT/DS268/AB/R, adopted 17 December 2004, pa ra. 180 (emphasis adde d) ("US-OCTG from
Argentina (AB)").

Korea notes that the decisions of the Appellate Body use the terms "has to" and "compel" in
describing the nature of obligations imposed on Memb ers’ investigating authorities engaged in sunset
reviews. As such, an investigating authorit y "must" conduct a sunset review based on positive
evidence and sufficient factual information. In othe r words, any sunset review determination derived
from assumption or conjecture must fail.

12. Korea brings the Panel’s attention to the fo llowing underlying facts. In the original 2000
sunset review proceeding, the USDOC sent out no questionnaires and limited itself to a review of the
information submitted by the parties. The USDOC si mply remained as a passive regulator rather than
active investigator/adjudicator as contemplated by Article 11.3. This inadequate information
gathering/analysis process was one of the key cons ideration factors of the original panel when it
ultimately concluded that:

The purpose of a sunset review is to examine whether the facts continue to justify
the imposition of an anti-dumping measure. The USDOC, however, did not
engage in that inquiry because it simply relied on the existence of the dumping
margin from the original investigation.
5
In short, the panel’s finding was simply that the USDOC continued the anti-dumping measure in 2001
without having engage[d] in [the] inquiry required by Article 11.3. This could be characterized as an
incident of sunset review based on "assumption and conjecture."

13. In Korea’s view, the USDOC repeats its error yet again in the 2005 Section 129 determination
by simply relying on its earlier findings. Excluding information that would not have been reasonably
available to it in 2000, the USDOC did not add an ything concrete to overcome the concern of the
original panel. One could argue, therefore, that the 2005 determination simply constitutes
continuation of the existing e rrors. The new determination is still based on "assumption and
conjecture" which the Appellate Body has warned ag ainst. Such being the case, Korea stresses that
the United States has failed to implement the reco mmendations and rulings of the DSB. Under the
circumstances, the only alternativ e for the USDOC to bring its sunset determination on the Argentine
OCTG into conformity with relevant provisions of the AD Agreement would be to revoke the anti-
dumping order.

14. In this respect, Korea also requests the Panel to take into consideration the fact that the United
States was given a 12-month implementation period in this dispute. During the arbitration under DSU
Article 21.3(c) on the reasonable period of time fo r the implementation, the United States offered an
extensive list of procedural steps to develop and re fine relevant information. Given the information
and data contained in the 129 determination, howe ver, Korea has serious reservation whether such
proposed procedures have been duly taken by the US DOC. For instance, unlike its original proposal
in the 21.3 arbitration, the USDOC did not issue any draft or preliminary determination, as it routinely
does in other Section 129 procedures.

B. USDOC’S SECTION 129 DETERMINATION VIOLATES VARIOUS "DUE PROCESS"
PROVISIONS CONTAINED IN ARTICLE 6 OF THE AD AGREEMENT

15. Furthermore, the way the Section 129 proceeding was implemented by the USDOC
constitutes a violation by the United States of various provisions of Article 6 of the AD Agreement.

5 United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from
Argentina, WT/DS268/AB/R, adopted 17 December 2004, para. 7.219 (emphasis added).

16. It is uncontested that the obligations of Ar ticle 6 of the AD Agreement also apply to sunset
reviews. Article 11.4 of the AD Agreement provides that "[t]he provisions of Article 6 regarding
evidence and procedure shall apply to any review carried out under this Article". The Appellate Body
has also confirmed that "claims under Article 6 may be made in relation to sunset review
determinations on the basis of the cross-re ference to Article 6 found in Article 11.4". 6 Accordingly,
the obligations of Article 6 of the AD Agreemen t apply to the Section 129 determination in the
Argentine OCTG sunset review.

17. Korea notes that various aspects of the US DOC’s 129 proceeding constitute violation of
provisions of Article 6. First, the USDOC failed to provide the interested parties with meaningful
opportunities to present in writing all evidence whic h they considered rele vant, which constitutes
violation of Article 6.1; the USDOC also failed to provide interested parties with a full opportunity for
the defense of their interests, which in turn constitu tes violation of Article 6.2; the USDOC also failed
to provide timely opportunities for interested parties to review all information that was relevant to the
presentation of their cases, which constitutes violation of Article 6.4; the USDOC also failed to satisfy
the requirements of Article 6.5.1 regarding th e provision of non-confidential summaries of
confidential information; the USDOC failed to satisfy the requirements of Article 6.6 by not ensuring
the accuracy of information that was relied on to the exclusion of other more probative evidence; the
USDOC also failed to follow the requirements of Ar ticle 6.8; and the USDOC also failed to inform
interested parties of the essential facts under consid eration that formed the basis for the decision,
which constitutes violation of Article 6.9. As to the specific factual background for these claims,
Korea requests the Panel to refer to the first submission of Argentina.

18. All these obligations contained in Article 6 collectively stand for the proposition that
fundamental due process rights must be ensured at all times in an anti-dumping order sunset review.
 7
Yet, the USDOC did not conduct the Section 129 proceeding in a manner consistent with the
requirements of Article 6. As such, Korea believe s that the United States still fails to implement the
recommendations and rulings of the DSB, and the only way to bring the measure into conformity with
relevant provisions of the covered agreements is to revoke it.

C. THE UNITED STATES HAS FAILED TO IMPLEMENT THE DSB RECOMMENDATIONS AND
RULINGS WITH RESPECT TO THE "AS SUCH" VIOLATIONS OF SECTION 751(C)(4)(B) AND
SECTION 351.218.

19. Section 751(c)(4)(B) of the Tariff Act of 1930 as amended provides as follows:

(B) Effect of waiver
In a review in which an interested part y waives its participation pursuant to this
paragraph, the administering authority shall conclude that revocation of the order or
termination of the investigation would be lik ely to lead to continuation or recurrence
of dumping or a countervailable subsidy (as the case may be) with respect to that
interested party.
8

6 US – OCTG from Argentina (AB), para. 239.
7 US – OCTG from Argentina (AB), para. 241; Guatemala – Definitive Anti-Dumping Measures on Grey
Portland Cement from Mexico, WT/DS156/R, adopted 17 November 2000, para. 8.119; United States – Sunset
Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan , WT/DS244/R,
adopted 9 January 2004, para. 7.255.
8 19 USC. § 1675(c)(4)(B).

In the underlying dispute, the Appellate B ody found that Section 751(c)(4)(B) and its
implementing regulation were inconsistent, as such, with US obligations under Article 11.3 of
the AD Agreement. The Appellate Body noted that:
Because the waiver provisions require the USDOC to arrive at affirmative company-
specific determinations without rega rd to any evidence on record, these
determinations are merely assumptions made by the agency, rather than findings
supported by evidence…. [E]ven assuming that the USDOC takes into account the
totality of record evidence in making its order-wide determination, it is clear that, as a
result of the operation of the waiver provisions, certain order-wide likelihood
determinations made by the USDOC will be based, at least in part, on statutorily-
mandated assumptions about a company's likelihood of dumping. In our view, this
result is inconsistent with the obliga tion of an investigating authority under
Article 11.3 to "arrive at a reasoned conclusion" on the basis of "positive evidence."
Therefore, we uphold the Panel's findings...that Section 751(c)(4)(B) of the Tariff Act
of 1930 and Section 351.218(d)(2)(iii) of the USDOC Regulations are inconsistent, as
such, with Article 11.3 of the Anti-Dumping Agreement.
 9
20. Therefore, the Appellate Body was clear and unambiguous as to the WTO-inconsistency of
Section 751(c)(4)(B) and its implementing regulatio n. Despite the unambiguous conclusion of the
Appellate Body, however, it is uncontested that Se ction 751(c)(4)(B) of the Tariff Act has neither
been repealed nor amended. Therefore, Korea is of the opinion that the United States has failed to
bring Section 751(c)(4)(B) into conformity with the recommendations and rulings of the DSB and
with US obligations under Articles 11.1 and 11.3 of the AD Agreement and Article XVI:4 of the
WTO Agreement.

21. In addition, Korea further notes that Secti on 351.218 of the Regulation of the USDOC, as
amended, is WTO-inconsistent. Section 351.218 of the Regulation, as amended, requires respondent
interested parties that waive their right to par ticipate in a USDOC sunset review to make an
affirmative statement that it is likely to dump if the order is revoked. The amended Regulations
provide in part as follows:

Contents of statement of waiver. Every st atement of waiver must include a statement
indicating that the respondent interested party waives participation in the sunset
review before the Department; a statement that the respondent interested party is
likely to dump or benefit from a countervailable subsidy (as the case may be) if the
order is revoked or the investigation is terminated; in the case of a foreign
government in a CVD sunset review, a stat ement that the government is likely to
provide a countervailable subsidy if the or der is revoked or the investigation is
terminated; and the following information….
10
22. Korea requests the Panel to focus on what w ould actually happen under this provision. When
a party affirmatively waives its participation in a sunset review, the Regulation basically prevents the
USDOC from developing the requisite factual inform ation. The systematic inability of USDOC to
gather the necessary information therefore is "as su ch" inconsistent with the obligation of the United
States to conduct a sunset review and the need to ma ke the requisite determination under Article 11.3.
Under the revised Regulation, therefore, it is si mply impossible for the USDOC to carry out its
obligation under Article 11.3 to "arrive at a reasoned conclusion" on the basis of "positive evidence".

9 US – OCTG from Argentina (AB), paras. 234-235.
10 Procedures for Conducting Five-Year ("Sunset") Reviews for Anti-Dumping and Countervailing
Duty Orders: Final Rule, 70 Fed. Reg. 62,061, 62,064 (28 Oct. 2005).

23. Korea thus points out that Section 351.218 of the Regulation, as amended, remains
inconsistent with US obligations under Article 11.3 of the AD Agreement.

III. CONCLUSION

24. For the foregoing reasons, Korea respectfully submits that the Panel finds that the
United States has failed to implement the recommend ations and rulings of the DSB, and remains in
violation of its WTO obligations. Korea appreciates this opportunity to present its view to the Panel.

ANNEX B-5

THIRD PARTY WRITTEN SUBMISSION OF MEXICO

26 April 2006

Page

I. INTRODUCTION ............................................................................................................... 3 0
II. THE SECTION 129 DETERMINAT ION IS INCONSISTENT WITH
WTO OBLIGATIONS AND DOES NOT IMPLEMENT THE DSB
RECOMMENDATIONS..................................................................................................... 30
A. THE USDOC'S DUMPING DETERMI NATION RELIED ON A STANDARD
THAT WAS INCONSISTENT WITH ARTICLE 11.3 AND ON A DUMPING SCENARIO
WHICH IS NOT PROVIDED FOR IN THE ANTI-DUMPING AGREEMENT ...............................31
B. ALTHOUGH THE USDOC BASED ITS D ETERMINATION ON A DECLINE IN THE
VOLUME OF EXPORTS, THE UNITED STATES ERRONEOUSLY SUBMITS THAT THE
PANEL SHOULD NOT ANALYSE THIS FACT ..............................................................................31
III. CONC LUSION ................................................................................................................ .... 32

I. INTRODUCTION

1. Mexico welcomes this opportunity to submit its paper on the implementation of the rulings
and recommendations of the DSB and to present to the Panel its views on the facts and legal aspects
of United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from
Argentina (WT/DS268) – Recourse to Article 21.5 of the DSU. This case once again concerns the
improper implementation by the United States of the ob ligations established in Articles 2, 6 and 11 of
the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994
(Anti-Dumping Agreement).

2. Mexico considers that the United States h as failed to implement the DSB's rulings and
recommendations in this dispute. The United Stat es maintains in force an anti-dumping order against
Argentine products even though the DSB established that the measure was inconsistent with WTO
legislation. It has been more than five years since the United States extended the anti-dumping duties.
Although it has had sufficient time and a fresh opportunity to comply, the United States still refuses to
bring its measure into conformity.

II. THE SECTION 129 DETERMINATIO N IS INCONSISTENT WITH WTO
OBLIGATIONS AND DOES NOT IMPLEMENT THE DSB RECOMMENDATIONS

3. Let us turn to certain worrying aspects of th e determination by the United States Department
of Commerce (USDOC). We repeat that Mexico reserves its right to elaborate on these comments or
to submit new comments on this determination.

A. THE USDOC'S DUMPING DETERMINATION RELIED ON A STANDARD THAT WAS
INCONSISTENT WITH ARTICLE 11.3 AND ON A DUMPING SCENARIO WHICH IS NOT
PROVIDED FOR IN THE ANTI-DUMPING AGREEMENT

4. The United States based its determination of continuation or recurrence of dumping on the
following reasoning: it is probable that one of th e Argentine exporters engaged in dumping in the
past, and it is therefore also probable that the said exporter will engage in dumping in the future if the
anti-dumping order is revoked. The above premis e (that it is probable that Acindar engaged in
dumping in the past) is itself based on the alleged f act that Acindar exported to the United States
during the investigation period at prices lower than United States domestic market value.

5. In other words, the only fact that has been proven by the USDOC (assuming that the prices
published by Preston Pipes accurately reflect the United States domestic market prices for the product
in question) is that Acindar's export prices were lo wer than the United States domestic market prices.
Mexico would therefore like to express its concern at the USDOC's approach, in particular:
- At the fact that, as in the case of the measure applied against Mexico, the
United States did not base its determination on what was "likely" to happen. This is
clearly inconsistent with the standard set forth in Article 11.3 of the Anti-Dumping
Agreement;
- at the fact that the United States relied on a dumping scenario that is not provided for
in Article 2 of the Anti-Dumping Agreement.
B. ALTHOUGH THE USDOC BASED ITS DETERMI NATION ON A DECLINE IN THE VOLUME
OF EXPORTS, THE UNITED STATES ERRONEOUSLY SUBMITS THAT THE PANEL SHOULD
NOT ANALYSE THIS FACT

6. During the Panel proceedings, Mexico pointed out to the Panel the decisive weight attached
by the USDOC in the Sunset reviews to volum es exported following the imposition of the anti-
dumping order. Much has happened in this respect since Mexico's third party submission. The Panel
and the Appellate Body in United States – Anti-Dumping Measures on Oil Country Tubular Goods
(OCTG) from Mexico (DS282) determined that the USDOC had relied solely on the decline in volume
to justify the continuation of the measure for oil country tubular goods from Mexico. The Panel
pointed out that the use by the USDOC of the decline in volume to the exclusion of other evidence
violated Article 11.3 of the Anti-Dumping Agreement, while the Appellate Body determined that the
investigating authority must analyse the causes of th e decline in volume rather than simply inferring
the likelihood of dumping.1

1 Mexico would like to recall what was said by the Panel United States – Anti-Dumping Measures on
Oil Country Tubular Goods (OCTG) from Mexico (DS282):
"The United States argues that the inference that dumping would continue or recur based on
declines in import volumes following the imposition of the anti-dumping order is "an exercise
in logic."1 We do not dispute that an investigating authority may draw inferences in support
of its conclusions, through the exercise of logic, based 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 acco unt 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 particular ly true where, as here, intervening reviews had resulted in
findings of zero dumping margins. Thus, in our view, consideration of such evidence is

7. Argentina clearly explained this in its firs t submission. The United States, for its part,
responded with its only argument by asking the Pane l to refrain from considering the volume element
as a measure taken to comply. However, the United States expressly states in its Section 129
determination that it relied on the decline in volum e to support the likelihood of dumping: "[t]he
Section 129 Determination was based on the findings of likely dumping by Acindar and the decreased
volumes".

8. The United States cannot purport, on the one ha nd, to base its determination on what it has
inferred from the volume, and at the same time state that Argentina "has offered no argument as to
why the finding regarding import volumes, which is an incorporation of an element of the original
determination, is a measure taken to comply". Th e decline in the volume of imports is a fundamental
part of the determination. In this connection, Mexico would respectfully draw the attention of the
panel to two facts in particular:

- The record in the determination does not c ontain any analysis or explanation of the
causes of the decline in volumes;
- The USDOC should have considered th e evidence voluntarily submitted by the
exporters explaining the causes of the decline in volume.
III. CONCLUSION

9. Under Article 19.1 of the DSU, the Panel has the authority to suggest to the United States
ways in which it could implement the DSB's recomme ndations in this dispute. When there are WTO
obligations with a time element, as is the case here , a Member's options for bringing its measure into
conformity with its WTO obligations are naturally limited.

10. Mexico agrees with and suppor ts Argentina in its request to the Panel that "the measure be
revoked", and asks the Panel to "suggest" to the Unite d States that it revoke the measure. This is
based on the fact that anti-dumping measures cannot last longer than five years unless, according to
the interpretation of several panels, the authority applying the measure "determines" on the basis of
"objective facts" that the dumping is likely to recu r or continue, something which the United States
did not do either in the original Sunset review of 2000, or in the new determination. This is why
Argentina is justified in asking that the measure which the United States has applied in an inconsistent
manner for the past five years be terminated.

necessary in order to satisfy the requirements of Article 11.3. USDOC did not do so in this
case." (Paragraph 7.79)