UNITED STATES - SUNSET REVIEWS OF ANTI-DUMPING MEASURES ON OIL COUNTRY TUBULAR GOODS FROM ARGENTINA (DS268)
Document: Report of the Panel
Date: 16 July 2004
Document codes: WT/DS268/R
Complainant: Argentina
Respondent: U.S.
Third parties: China, EU, Japan, South Korea, Mexico, Taiwan
Dispute stage: Implementation & Compliance
Agreements cited: Art. 1, 2, 3, 6, 11, 12, 18, Annex II  Anti-dumpingArt. VI, X  GATT 1994Art. XVI:4  Agreement Establishing the World Trade Organization

UNITED STATES - SUNSET REVIEWS OF ANTI-DUMPING
 MEASURES ON OIL COUNTRY TUBULAR GOODS FROM
ARGENTINA (DS268)

Report of the Panel

I. INTRODUCTION
1.1 On 7 October 2002, the Government of the Re public of Argentina requested consultations
with the Government of the United States of Am erica pursuant to Article 4 of the Understanding on
Rules and Procedures Governing the Settlement of Disputes ("the DSU"), Article XXII:1 of the
General Agreement on Tariffs and Trade 1994 ("the GATT 1994"), and Article 17.3 of the Agreement
on Implementation of Article VI of GATT 1994 ("the Anti-Dumping Agreement") concerning, inter
alia, the determinations of the United States Department of Commerce ("the USDOC") and the
United States International Trade Commission ("the USITC") in the sunset reviews of anti-dumping
duty measure on oil country tubular goods ("OCTG") from Argentina. 4 The United States and
Argentina consulted on 14 November and 17 December 2002, but failed to settle the dispute.
1.2 On 3 April 2003, Argentina requested the Dispute Settlement Body ("the DSB") to establish a
panel pursuant to Article XXIII of the GATT 1994, Article 6 of the DSU and Article 17 of the Anti-
Dumping Agreement.5
1.3 At its meeting on 19 May 2003, the DSB establis hed a panel in accordance with Article 6 of
the DSU to examine the matter referred to the DSB by Argentina in document At that
meeting, the parties to the dispute also agreed that the Panel should have standa rd terms of reference.
The terms of reference are, therefore, the following:
"To examine, in the light of the relevant provisions of the covered agreements cited
by Argentina in document , the matter referred to the DSB by Argentina
in that document and to make such findings as will assist the DSB in making the
recommendations or in giving the rulings provided for in those agreements."
1.4 On 22 August 2003, Argentina requested the Di rector-General to determine the composition
of the Panel, pursuant to paragraph 7 of Article 8 of the DSU. On 4 September 2003, the Director-
General accordingly composed the Panel as follows:
Chairman: Mr. Paul O'Connor
Members: Mr. Bruce Cullen
 Dr. Faizullah Khilji

1.5 The European Communities, Japan, Korea, Mexico and the Separate Customs Territory of
Taiwan, Penghu, Kinmen and Matsu reserved their third-party rights.
1.6 The Panel met with the parties on 9-10 December 2003 and on 3 February 2004. It met with
the third parties on 10 December 2003.
II. FACTUAL ASPECTS
2.1 This dispute concerns certain aspects of US s unset reviews laws, regulations, and procedures
as well as their application in the sunset review of the anti-dumping duty on OCTG from Argentina.
The original anti-dumping investigation on OCTG from Argentina that gave rise to the sunset review
at issue in these dispute settlement proceedings was initiated in 1994, i.e. before the establishment of
the World Trade Organization ("the WTO") and was co mpleted in 1995, i.e. following the entry into
force of the Marrakesh Agreement Establishing the WTO. Therefore, the investigation was carried
out under pre-WTO US laws and regulations.

4 WT/DS268/1.
5 WT/DS268/2.

2.2 The only exporter from Argentina that was party to the original investigation was Siderca.
The dumping margin calculated for Siderca was 1.36 pe r cent, which also established the basis for the
anti-dumping duty imposed. The USDOC calculate d a residual duty at the same rate, i.e.
1.36 per cent for other Argentine exporters.
2.3 Following the imposition of the duty, Siderca stopped exporting OCTG into the US market.
2.4 During the five-year lifespan of the anti-dum ping duty, four administrative reviews were
initiated by the USDOC at the request of the domes tic producers of OCTG in the United States. In
these administrative reviews, Siderca stated that it had not made any shipment for consumption in the
United States and, following its analysis, the USDOC agreed with Siderca and rescinded the
administrative review.
2.5 On 3 July 2000, the USDOC initiated, on its own initiative, a sunset review of the anti-
dumping duty on OCTG from Argentina. The US producers, petitioners in the sunset review,
participated in the sunset review and filed substantive responses to the USDOC. Siderca also
participated and filed a substantive response on 2 August 2000. On 22 August 2000, the USDOC
decided to conduct an expedited sunset review under US law because Siderca was the lone respondent
and accounted for significantly less than the threshold provided for in the Regulations of 50 per cent
of total imports of OCTG from Argentina to the United States in the 1995-1999 period.
2.6 In its final determination, the USDOC determin ed that dumping was likely to continue or
recur at 1.36 per cent should the duty on OCTG fr om Argentina be revoked and reported that to the
USITC as the likely margin of dumping.
2.7 The USDOC's final likelihood of continuation or recurrence of dumping determination, in
which it found that dumping was likely to continue or recur, was published on 7 November 2000. In
June 2001, the USITC published its final injury dete rmination in which it also found a likelihood of
continuation or recurrence of material injury. On 25 July 2001, the USDOC published the notice of
continuation of the anti-dumping duty on OCTG from Argentina.
III. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS
A. A
RGENTINA
3.1 Argentina requests the Panel:
1. To find that 19 U.S.C. § 1675(c)(4) of the Tariff Act of 1930 and 19 C.F.R. §
351.218(d)(2)(iii) of the USDOC's Sunset Regulations (the “waiver provisions”) violate:
_ Article 11.3 of the Anti-Dumping Agreement be cause the waiver provisions mandate that
the USDOC find likelihood of continuation or recurrence of dumping without the conduct
of a “review,” without any analysis and, henc e, without the required “determination” of
Article 11.3;
_ Article 6.1 of the Anti-Dump ing Agreement because the waiver provisions preclude
respondent interested parties from being able to present evidence in sunset reviews;
_ Article 6.2 of the Anti-Dumping Agreement because the waiver provisions deny
respondent interested parties the ability to defend their interest in sunset reviews;
2. To find that the provisions of 19 U.S.C. § 1675a(a)(1) and (5) of the Tariff Act of 1930
are inconsistent with Articles 3.1, 3.2, 3.4, 3.5, 3.7, 3.8, 11.1 and 11.3 of the Anti-
Dumping Agreement because these statutory requirements provide for an open-ended

analysis for possible future injury by requiring that the USITC determine whether injury
would be likely to continue or recur “within a reasonably foreseeable time” and that the
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”;
3. To find that the irrefutable presumption embodied in Sections 751(c) and 752(c) of the
Tariff Act of 1930, the provisions of Stat ement of Administrative Action (“the SAA”)
relating to sunset reviews, and Section II.A. 3 of the Sunset Policy Bulletin (“the SPB”)
and demonstrated in the USDOC's consiste nt practice in sunset reviews violates
Article 11.3 because the pr incipal obligation of Article 11.3 of the Anti-Dumping
Agreement requires that anti-dumping measures be terminated after five years of
imposition, unless the authorities satisfy th e requirements for maintenance of the
measure;
4. To find that The USDOC’s determination to conduct an expedited sunset review and its
conduct of an expedited review, on the basi s that Siderca’s OCTG exports to the United
States were less than 50 per cent of the total OCTG exports from Argentina to the United
States, and the application of waivers provisions were inconsistent:
_ with the requirements of Artic les 11.3, 11.4, 6.1, 6.2, 6.8, 6.9 and Annex II of the Anti-
Dumping Agreement because notwithstanding Siderca’s full cooperation and submission
of a complete substantive response c onsistent with the USDOC’s regulatory
requirements, the USDOC deemed Siderca’s response to be inadequate solely on the basis
of import data and, hence, denied Siderca the opportunity to defend its interest;
_ with Article 11.3 of the Anti-Dumping Agreement because the USDOC rendered a
determination of likelihood of continuation or recurrence of dumping without any
analysis;
_ with Article 6.1 of the Anti-Dumping Agre ement because the USDOC failed to give
Siderca the opportunity to present evidence;
_ with Article 6.2 because the USDOC denied Siderca the right to defend its interests;
_ with Article 6.8 and Annex II of the An ti-Dumping Agreement because the USDOC did
not comply with these provisions in its use of facts available;
5. To find that the USDOC's determination to conduct an expedited sunset review and the
USDOC's sunset determination, which incorporated the USDOC's Issues and Decision
Memorandum by reference, violated Articles 12.2 and 12.2.2 of the Anti-Dumping
Agreement because the USDOC failed to provide public notice and explanations in
sufficient detail of its findings on all issues of fact and law;
6. To find that The USDOC's sunset determinatio n was inconsistent with Article 11.3 of the
Anti-Dumping Agreement because:
_ the USDOC failed to apply the disciplines of Article 2;
_ the USDOC failed to conduct a prospective analysis;
_ the USDOC failed to make a determination of “likely” (or “probable”) dumping;
_ the USDOC failed to base its determination on positive evidence;

_ the USDOC's reliance on the cessation of Side rca’s exports into the United States in the
wake of the anti-dumping measure as the sole basis for its likelihood determination was
inconsistent with Article 11.3 of the Anti-Dumping Agreement;
_ the USDOC's reliance on the original margin of dumping of 1.36 per cent, calculated
using the WTO-inconsistent practice of zero ing negative margins for purposes of its
likelihood decision, as well as its reporting of that margin to the USITC was inconsistent
with Article 11.3 and Article 2 of the Anti-Dumping Agreement;
7. Separate and apart from whether US anti-dumping laws and regulations regarding sunset
reviews are deemed to establish an unlawful presumption, or are otherwise found to be
consistent on their face per se with the US WTO obligations, and irrespective of whether
the SAA and SPB are “measures” that can be subject to challenge, to find that the
USDOC failed to administer in an impartial an d reasonable manner the US sunset review
laws, regulations, decisions and rulings in violation of Article X:3(a) of the GATT 1994;
8. To find that, in its determination of the likelihood of continuation or recurrence of injury
in the instant sunset review, the USITC applied a lower standard than that which is
required by Article 11.3 of the Anti-Dumping Agreement;
9. To find that the USITC's sunset determination violated:
_ Articles 3.1, 3.2, 3.4, 3.5, and 11.3 of the Anti-Dumping Agreement because the USITC
did not conduct an objective examination of the record or base its determination on
positive evidence regarding its conclusions concerning the likely volume of imports, the
likely price effects, and the likely impact of imports on the domestic industry;
_ Article 3.4 of the Anti-Dumping Agreement because in assessing the likelihood of
continuation or recurrence of injury to the domestic industry, the USITC failed to
evaluate all the relevant economic factors and indices having a bearing on the state of the
industry, including those enumerated in the mentioned article;
_ Article 3.5 of the Anti-Dump ing Agreement because the USITC failed to respect the
causation provisions of this article;
10. To find that the USITC's application of 19 U.S.C. § 1675a(a)(1) and (5) of the Tariff Act
of 1930 in the sunset review of OCTG from Ar gentina was inconsistent with Articles 3.1,
3.2, 3.4, 3.5, 3.7, 3.8, 11.1 and 11.3 of the Anti-Dumping Agreement because by applying
the “within a reasonably foreseeable time” standard and by using a time frame that is not
“imminent” but which rather relates to “a longer period of time”, the USITC speculated
and conducted an open-ended analysis for possible future injury;
11. To find that the USITC's use of cumulation in its likelihood of continuation or recurrence
of injury determinations in the OCTG sunset review was inconsistent with Article 11.3 of
the Anti-Dumping Agreement, which precludes the use of a cumulative injury analysis in
sunset reviews; or, if cumulation is permitted in sunset reviews, to find in the alternative
that the USITC's decision to cumulate in the OCTG sunset review violated Article 3.3 of
the Anti-Dumping Agreement because the USIT C failed to comply with the conditions
set out in the mentioned article for the use of cumulation; in addition, to find that the
USITC's use of cumulation also conflicted with the "likely" standard of Article 11.3;
12. To find that because the United States violated its obligations under the Anti-Dumping
Agreement, it also violated the provisions of Article VI of the GATT 1994, Articles 1 and
18 of the Anti-Dumping Agreement, and Article XVI:4 of the WTO Agreement;

13. To suggest that the United States implement the Panel's recommendations by terminating
the anti-dumping duty on OCTG from Argentin a and by repealing its WTO-inconsistent
laws, regulations, and procedures or by amending such laws, regulations, and procedures
to eliminate the WTO-inconsistencies.
B. UNITED STATES
3.2 The United States requests the Panel to reject Ar gentina's claims in their entirety. The United
States requests the Panel to find that the claims set forth in paragraph 3.1 beyond those found in
Argentina’s panel request are not within the Panel’s terms of reference.
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 parties' submissions, oral statements and their answers to
questions are attached to this Report as Annexes (see List of Annexes, pages viii and ix).
V. ARGUMENTS OF THE THIRD PARTIES
5.1 The arguments of the third parties, the Europe an Communities, Japan, Korea, Mexico and the
Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu are set out in their written
submissions and oral statements to the Panel and their answers to questions . The third parties'
submissions, oral statements and their answers to questions are attached to this Report as Annexes
(see List of Annexes, pages viii and ix).
VI. INTERIM REVIEW
6.1 On 7 May 2004, we submitted the interim report to the parties. Both parties submitted written
requests for the review of precise aspects of th e interim report. Parties also submitted written
comments on the other party's comments. Neither party requested an interim review meeting.
6.2 We have outlined our treatment of the parties' requests below. Where necessary, we have also
made certain technical revisions to our report.
A. REQUEST OF ARGENTINA
6.3 Argentina submits that the Panel should make a legal finding that the violations committed
by the United States of its WTO obligations cons titute nullification or impairment of Argentina's
rights under WTO agreements within the meaning of Article 3.8 of the DSU.
6.4 The United States opines that since Argentina has not proved that it suffered actual harm due
to the violations found by the Panel, the latter shou ld refrain from finding that these violations lead to
a nullification or impairment of Argentina's rights under WTO agreements.
6.5 We note that Article 3.8 of the DSU sets out the presumption that in cases where there is an
infringement of the obligations assumed under a covered agreement, the action is considered prima
facie to constitute a case of nullification or impairme nt of benefits under that agreement. The cited
article does not require that the co mplaining party prove actual harm for the Panel to find that an
infringement of a WTO obligation also constitutes nullification or impairment of the complaining
party's WTO rights. We therefore made a modification to paragraph 8.2 of our report to
accommodate Argentina's comment.

6.6 Second, Argentina argues that the Panel should make findings regarding Argentina's claim
concerning the use by the USDOC of the original dumping margin, which, in Argentina's view, had
been calculated on the basis of the so-called methodology of zeroing.
6.7 The United States submits that the Panel should exercise judicial economy and not make any
findings regarding this aspect of Argentina's claim.
6.8 We note that in paragraph 7.219 below we found that the USDOC erred in basing its factual
finding that dumping had continued over the life of the measure on the existence of the margin of
dumping from the original invest igation. We therefore concluded that the factual basis of the
USDOC's determination that dumping had continued over the life of the measure was improper. In
paragraph 7.223, we stated that, having found that the USDOC erred in relying on this original
dumping margin, we did not analyse the issue of whether that margin had been calculated through
zeroing. We therefore decline to make additional findings in this regard.
6.9 Third, Argentina submits that the Panel should make findings regarding the USDOC's
reliance on the post-order decline in the volume of imports of OCTG from Argentina.
6.10 The United States argues that the Panel should exercise judicial economy and not make any
findings regarding this aspect of Argentina's claim.
6.11 We note that in paragraphs 7.201-7.206 belo w, we made the relevant factual findings
regarding Argentina's claim challenging the USDOC's de terminations in the OCTG sunset review. In
particular, in paragraph 7.202, we observed as a matter of fact that the USDOC had based its
likelihood determination on the facts that dumping had continued over the life of the measure and that
import volumes of the subject product had declined. It is, therefore, clear that we have made relevant
factual findings in this regard. As far as legal fi ndings are concerned, we note that we have decided
Argentina's claim regarding the USDOC's likelihood determinations in the OCTG sunset review. We
have found that the USDOC's reliance on the existence of the original dumping margin was
inconsistent with Article 11.3 of the Anti-Dumping Agreement. We therefore did not need to address
whether the USDOC's reliance on declined import volumes was yet another action inconsistent with
that article. Argentina argues that we should make a finding in this regard in case our decision is
appealed and the Appellate Body finds that the USDOC's reliance on the original dumping margin
was in fact consistent with Article 11.3. We do no t consider, however, that it would be appropriate to
make an additional legal finding based on the hypoth etical situation Argentina posits. We therefore
decline to make additional findings in this regard.
6.12 Fourth, Argentina submits that it put forward sufficie nt argumentation to support its claim
under Article 6.9 of the Anti-Dumping Agreement and therefore the Panel should make findings in
this regard.
6.13 The United States agrees with the Panel's view that Argentina did not develop sufficient
argumentation to make a claim under Article 6.9 and submits that the Panel should not make any
finding in this regard.
6.14 We consider that Argentina did not develop arguments sufficient to make a claim under
Article 6.9. We added paragraphs 7.243-7.244 to our report in order to further clarify the reasons why
we decline to make any finding under Article 6.9 of the Agreement.
6

6 We note that the United States requested to be given a new comment period in case the Panel decided
to make a finding under Article 6.9. Given that our additional discussion in paragraphs 7.243-7.244 of our
report is intended to clarify why we declined to make a finding regarding Argentina's argumentation under

6.15 Fifth, Argentina disagrees with the Panel's characteri zation of Argentina's claim regarding
the USITC's failure to apply the "likely" standard of Article 11.3 of the Anti-Dumping Agreement in
the OCTG sunset review. In particular, Argentina disagrees with the Panel' s statement in paragraph
7.280 that "... the crux of Argentina's claim is..." and the statement in paragraph 7.285 that "...the
essence of Argentina's claim is not..."
6.16 The United States did not specifically respond to this comment.
6.17 We note that Argentina's main argument in this regard, i.e. the USITC failed to apply the
"likely" standard of Article 11.3 in the OCTG revi ew, is correctly identified and then discussed by the
Panel in paragraphs 7.284-7.285 below. The stat ement in paragraph 7.280 is intended to draw
attention to the similarity between the texts of Articles 3.1 and 3.2 of the Anti-Dumping Agreement
on the one hand and the Panel's standard of review in the present proceedings on the other. As such,
this statement does not determine the Panel's main li ne of approach with respect to this claim. The
statement in paragraph 7.285 is intended to link Ar gentina's claim regarding the USITC's failure to
apply the "likely" standard to the three arguments raised by Argentina regarding the USITC's
determinations in the OCTG sunset review, i.e. volume, price effect and consequent impact of likely
dumped imports. Similarly, this statement does not undermine, nor change, the nature of Argentina's
claim.
6.18 We therefore decline to make any modification to our findings in this regard.
6.19 Sixth, Argentina disagrees with the Panel's characteri zation of Argentina's claim regarding
cumulation. In this context, Argentina argues that the Panel has failed to discuss Argentina's
arguments that Articles 11.3 and 3.3 of the Agreem ent prohibit cumulation in sunset reviews and that
the USITC's use of cumulation in the OCTG sunset review led to a failure to apply the "likely"
standard of Article 11.3.
6.20 The United States generally disagrees with Argentina an d submits that the report adequately
discusses Argentina's argument that Articles 11.3 and 3.3 prohibit cumulation in sunset reviews.
6.21 We note that in paragraphs 7.325 and 7.326 belo w we have addressed Argentina's argument
that Article 3.3 limits the use of cumulation to inves tigations. This, in our view, is equivalent to the
proposition that Article 3.3 prohibits the use of cumula tion in sunset reviews. We have nevertheless
added paragraph 7.334 to discuss Argentina's argument regarding the use of the word "duty" in the
singular, as opposed to the plural, in Articles 11.1 and 11.3 of the Agreement in connection with the
present claim.
7
6.22 Regarding Argentina's claim that the USITC failed to apply the "likely" standard of
Article 11.3 by using cumulation in the OCTG sunset review, we note that we have discussed this
particular issue in paragraph 7.337 below. We therefore decline to make any modification to our
findings in this regard.
6.23 We have made a modification to paragraph 7.239 at the request of Argentina.

Article 6.9, rather than constituting a finding, we do not find it necessary to give the United States another
opportunity to make comments in this regard.
7 We note that the United States requested to be given a new comment period in case the Panel decided
to engage in an additional discussion of Argentina's arguments under this claim. Given that our discussion of
Argentina's argument regarding the word "duty" does not change our conclusion with respect to this claim and
that the United States has already expressed its views on this particular issue (see, for instance, First Written
Submission of the United States, para. 366), we do not find it necessary to give the United States another
opportunity to make comments in this regard.

B. R
EQUEST OF THE UNITED STATES
6.24 The United States requests the Panel to make certain mo difications to paragraphs 7.85 and
7.91 to prevent a potential misunderstanding regarding the legal basis of the provisions of US law
governing affirmative and deemed waivers. More particularly, the United States argues that under US
law the provisions that apply to deemed waivers ar e found exclusively in the Regulations, not the
Statute. The modifications that the United states is suggesting are aimed at clarifying this issue.
6.25 Argentina disagrees with the United States with re spect to both paragraphs and opines that
although the provision that creates the deemed waiver category is found in the Regulations, the
Statute is also relevant with respect to the provisio ns applicable to deemed waivers in that it is the
Statute, and not the Regulations, that sets out the legal consequence of deemed waivers.
6.26 We note that, as stated in the two paragraphs cited by the United States, under US law it is the
USDOC's Regulations, and not the Statute, which creates the deemed waivers category.
Section 751(c)(4)(A) of the Tariff Act provides that interested parties may elect to waive participation
in the USDOC part of a sunset review and lim it their participation to the USITC part.
Section 351.218(d)(2)(iii) of the USDOC's Regulations, however, describes the situations in which
waivers may arise. One of the situ ations described in this section is the deemed waivers category.
The legal consequence of waivers, regardless of the situation in which they arise, is set out in
Section 751(c)(4)(B) of the Tariff Act, i.e. an affi rmative finding of likelihood. We cannot, therefore,
accept the US comment, which suggests that the Statute has no effect with respect to deemed waivers.
6.27 Second, the United States requests that the Panel make certain modifications to paragraphs
7.156 and 7.158 of the report to reflect the fact that the SPB has no authority to request the USDOC to
do anything and similarly no authority to give the USDOC the discretion to do anything.
6.28 Argentina opines that the modifications requested by the United States are aimed at re-
litigating certain substantive issues that have been decided by the Panel and therefore the Panel should
reject them.
6.29 We note that the basis on which the United States builds its comments at issue are closely
related to the substance of the claims raised by th e parties and discussed by the Panel in the present
proceedings. We have already made a decision regarding the US' view that the SBP as such cannot
give rise to a WTO violation because it is not bindi ng under US law. We therefore decline to revisit
our substantive finding in that regard. We have nevertheless made certain modifications to the
descriptive portions of paragraphs 7.156 and 7.158 to accommodate the concern raised by the United
States regarding the binding effect of the SPB on the USDOC.
6.30 Third, the United States requests the Panel to add to the recitation of facts in paragraph 7.203
of the report the fact that no Argentine exporter other than Siderca responded to the notice of
initiation.
6.31 Argentina requests that the preceding four sentences of this paragraph be maintained should
the Panel decide to make any modification to this paragraph.
6.32 We note that the two paragraphs that follow pa ragraph 7.203 make clear that no Argentine
exporter other than Siderca filed a substantive response to the notice of initiation in the OCTG sunset
review. We therefore decline to make any modification to paragraph 7.203 in this regard.
6.33 Fourth, the United States submits that either the Panel should point to relevant evidence that
demonstrates that Siderca requested a hearing in the OCTG sunset review and was declined or
paragraphs 7.232 through 7.236 should be deleted.

6.34 Argentina disagrees with the United States and submits that the Panel should reject the US
comment because the application of waiver provisions and the conduct of an expedited sunset review
in the OCTG sunset review precluded Siderca from having the opportunity to request a hearing.
6.35 We note our factual finding in paragraph 7.235 that in the OCTG sunset review, which took
the form of an expedited sunset review under US law, Siderca did not have an opportunity to request a
hearing because US law precluded such an opportunity . This is, in our view, enough ground to make
a decision as to the WTO-consistency of the proced ural rights provided to interested parties in the
OCTG sunset review. In other words, we disagree wi th the view that in order to be able to challenge
the US investigating authorities' failure to provide an opportunity for a hearing in the OCTG sunset
review, Siderca had to make such a request and have it denied even though it was evident that such a
request would not be granted as a matter of US la w. We therefore decline to make any modification
to our report in this regard.
6.36 We have deleted four paragraphs from the part of our report dealing with the United States'
request for preliminary rulings at the request of the United States. We have also made the
modifications requested by the United States to paragraphs 7.11, 7.74 and 7.106.
6.37 Finally, we have made some typographical a nd style-related improvements to the interim
report.
VII. FINDINGS
A. G
ENERAL ISSUES
1. Standard of Review
7.1 In light of the claims and arguments made by the parties in the course of these Panel
proceedings, we recall, at the outset of our examina tion, the standard of review we must apply to the
matter before us.
7.2 Article 11 of the DSU 8, in isolation, sets forth the appropriate standard of review for panels
for all covered agreements except the Anti-Dumping Agreement. Article 11 imposes upon panels a
comprehensive obligation to make an "objective as sessment of the matter", an obligation which
embraces all aspects of a panel's examination of the "matter", both factual and legal.
7.3 Article 17.6 of the Anti-Dumping Agreement sets forth the special standard of review
applicable to anti-dumping disputes. It provides:
“(i) in its assessment of the facts of th e 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 interpreta tion of public international law. Where
the panel finds that a relevant provision of the Agreement admits of more than one

8 Article 11 of the DSU, entitled "Function of Panels", states: "The function of panels is to assist the
DSB in discharging its responsibilities under this Understanding and the covered agreements. Accordingly, a
panel should make an objective assessment of the matter before it, including an objective assessment of the facts
of the case and the applicability of and conformity with the relevant covered agreements, and make such other
findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the
covered agreements…"

permissible interpretation, the panel shall find the authorities’ measure to be in
conformity with the Agreement if it rests upon one of those permissible
interpretations.”
7.4 Thus, together, Article 11 of the DSU and Article 17.6 of the Anti-Dumping Agreement set
out the standard of review we must apply with respect to both the factual and legal aspects of our
examination of the claims and arguments raised by the parties.
9
7.5 In light of this standard of review, in examining the claims under the Anti-Dumping
Agreement in the matter referred to us, we must ev aluate whether the United States measures at issue
are consistent with relevant provisions of the Anti-Dumping Agreement. We may and must find them
consistent if we find that the United States investigating authorities have properly established the facts
and evaluated them in an unbiased and objective manner, and that the determinations rest upon a
"permissible" interpretation of the relevant provisions. Our task is not to perform a de novo review of
the information and evidence on the record of the underlying sunset review, nor to substitute our
judgment for that of the US authorities, even though we might have arrived at a different
determination were we examining the record ourselves.
2. Burden of Proof
7.6 We recall that the general principles applicable to burden of proof in WTO dispute settlement
require that a party claiming a violation of a provision of the WTO Agreement by another Member
must assert and prove its claim. 10 In these Panel proceedings, Argentina, which has challenged the
consistency of the United States' measures, thus be ars the burden of demonstrating that the measures
are not consistent with the relevant provisions of the Agreement. Argentina also bears the burden of
establishing that its claims are properly before us . We also note that it is generally for each party
asserting a fact to provide proof thereof. 11 In this respect, therefore, it is also for the United States to
provide evidence for the facts which it asserts. We also recall that a prima facie case is one which, in
the absence of effective refutation by the other party, requires a panel, as a matter of law, to rule in
favour of the party presenting the prima facie case.
B. UNITED STATES' REQUEST FOR PRELIMINARY RULINGS
7.7 In its first written submission, the United States made a request for preliminary rulings by the
Panel.12 From an analytical point of view, the bases of the United States' request for preliminary
rulings can be divided into two groups. First, the United States asserts that Argentina's panel request
is vague in two respects. The United States subm its that, inconsistently with Article 6.2 of the DSU,
the claims raised by Argentina on page 4 of its panel request do not present the problem clearly.
Along the same line, the United States argues that references to Articles 6 and 3 of the Anti-Dumping
Agreement in sections B.1, B.2 and B.3 of Argentina's panel request do not present the problem
clearly, because these articles are being referre d to generally in their entirety, without any
specification of the relevant sub-paragraphs.

9 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, paras. 54-62.
10 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.
11 Ibid.
12 The US request for preliminary rulings is premised solely on the allegation that Argentina has failed
to provide a brief summary of the legal basis of some of its claims sufficient to present the problem clearly,
inconsistently with Article 6.2 of the DSU. The United States has not alleged a failure to identify the specific
measure at issue. See, Response of the United States to Question 21 from the Panel Following the Second
Meeting.

7.8 Second, the United States contends that certa in claims presented in Argentina's first
submission are not within our terms of reference be cause they were not raised in Argentina's panel
request. These are:
• Argentina's claim challenging the US practice as such and as applied in the instant sunset
 review regarding the alleged irrefutable presumption in sunset reviews,
• Argentina's claim regarding the alleged irrefutable presumption under US law as such,
• Argentina's claim under Article X:3(a) of the GATT 1994,
• Argentina's claim regarding the USITC's sunset determinations in the instant sunset review,
• Argentina's consequential claims under Article s 1 and 18 of the Anti-Dumping Agreement,
 Article VI of the GATT 1994 and Ar ticle XVI:4 of the WTO Agreement.
7.9 In response to the United States' request for pr eliminary rulings on the basis of Article 6.2 of
the DSU, Argentina generally submits that the United States can not prevail because it has failed to
demonstrate to the Panel that it has suffered prejud ice as a result of the alleged deficiencies in
Argentina's panel request. In addition to this general observation, Argentina also puts forward
counter-arguments to the US allegations with rega rd to each aspect of the latter's request for
preliminary rulings.
1. Alleged Vagueness of Argentina's Request for Establishment
7.10 The United States requests that we dismiss certain clai ms raised by Argentina in its panel
request on the grounds that, inconsistently w ith the requirements of Article 6.2 of the DSU, these
claims were identified vaguely. In this context, the United States takes issue with the claims raised on
page four and those raised in sections B.1 through B.3 of Argentina's panel request.
(a) Claims raised on page 4 of Argentina's panel request 13
7.11 The United States argues that Argentina failed to prov ide a brief summary of the legal basis
of the claims raised on page four of its panel reque st. According to the United States, inconsistently
with Article 6.2 of the DSU, the claims raised by Argentina on page 4 of its panel request fail to
present the problem clearly and are therefore outside our terms of reference. The United States
submits that Argentina's reference to various arti cles from WTO agreements that contain multiple
obligations fell short of the requirements of Article 6.2 of the DSU. The United States also asserts
that the absence of a brief summary of the legal basi s of the claims raised on page four renders this
portion of the panel request inconsistent with Article 6.2 of the DSU.
7.12 Argentina argues that the Panel has to read Argenti na's panel request as a whole in deciding
whether it meets the requirements of Article 6.2 of the DSU. Argentina submits that the minimum
requirement to clarify the legal basis of a claim in WTO dispute settlement proceedings is the citation
of the treaty articles alleged to have been violated. According to Argentina, claims on page four of its
panel request met this standard. Argentina contends that, although Article 6.2 does not require the
inclusion of a narrative description of the legal basis of a claim, Argentina did provide such a
description in relation to its page four claims. Arge ntina states that page four of its panel request is

13 We note that page four of Argentina's panel request is not limited to the part that the United States is
challenging on the grounds of vagueness. The United States is taking issue with the portion of page four of
Argentina's panel request that is found between the paragraph numbered four and the concluding paragraph that
starts with "Accordingly, Argentina respectfully requests that..." Given that both parties refer to this portion of
Argentina's panel request as "page four", we have also used the same characterization for ease of reference.

not intended to set out additional claims that are not found elsewhere in the request. According to
Argentina, therefore, even if page four is severed from the rest of its panel request, the effect would be
minimal.
14
7.13 We note that, under Article 7 of the DSU, it is Argentina's panel re quest that determines our
terms of reference in these proceedings. Article 6.2 of the DSU, which sets out the requirements
applicable to the requests for the establishment of a panel, provides:
The request for the establishment of a panel shall be made in writing. It shall indicate
whether consultations were held, identify th e specific measures at issue and provide a
brief summary of the legal basis of the co mplaint sufficient to present the problem
clearly. In case the applicant requests the establishment of a panel with other than
standard terms of reference, the written request shall include the proposed text of
special terms of reference.
7.14 According to Article 6. 2, therefore, a panel request must identify the specific measures at
issue and must provide a brief summary of the legal basis of the complaint . Together, these two
elements comprise the "matter referred to the DSB", which forms the basis for a panel's terms of
reference under Article 7.1 of the DSU. It is important that the panel request be sufficiently clear for
two reasons: First, it defines the scope of the dispute. Second, it serves the due process objective of
notifying the parties and third parties of the natu re of a complainant's case. We must therefore
scrutinize carefully Argentina's panel request "to ensure its compliance with both the letter and the
spirit of Article 6.2 of the DSU." In doing that, we shall consider Argentina's panel request as a whole
and take into account the circumstances of the present proceedings.
15
7.15 With these considerations in mind, we now turn to the text of Argentina's panel request to
decide whether it conforms to the requirements of that article. The portion of page four of Argentina's
panel request contested by the United States reads:
Argentina also considers that certain aspects of the following US laws, regulations,
policies, and procedures related to the de terminations of the Department and the
Commission are inconsistent with US WTO obligations, to the extent that any of
these measures mandate action by the Depart ment or Commission that is inconsistent
with US WTO obligations or preclude the Department or Commission from
complying with US WTO obligations:
• Sections 751(c) and 752 of the Tariff Act of 1930, as amended, codified at
Title 19 of the United States Code §§ 1675(c) and 1675a; and the US
Statement of Administrative Action (regarding the Agreement on
Implementation of GATT Article VI) accompanying the Uruguay Round
Agreements Act (the SAA), H.R. Doc. No. 103-316, vol. 1;
• The Department's Policies Regarding the Conduct of Five-year ("Sunset")
Reviews of Anti-Dumping and Countervailing Duty Orders ; Policy Bulletin,
63 Federal Register 18871 (16 April 1998) (Sunset Policy Bulletin);

14 Argentina’s Comments on the US Closing Statement at the Second Substantive Meeting of the Panel,
and US Answers to Questions from the Panel and Argentina in Connection with the Second Substantive Meeting,
para. 49.
15 We find support for our approach in the Appellate Body decision in US – Carbon Steel . See,
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,
paras. 125-127.

• The Department's sunset review regulations, codified at Title 19 of the United
States Code of Federal Regulations § 351.218; and the Commission's sunset
review regulations, codified at Title 19 of the United States Code of Federal
Regulations §§ 207.60-69 (Subpart F).
Argentina considers that the Department's Determination to Expedite, the
Department's Sunset Determination, the Commission's Sunset Determination, the
Department's Determination to Continue the Order and the above mentioned US laws,
regulations, policies and procedures are inconsistent with the following provisions of
the Anti-Dumping Agreement, the GATT 1994, and the WTO Agreement:
• Articles 1, 2, 3, 6, 11, 12, 18 and Annex II of the Anti-Dumping Agreement;
• Articles VI and X of the General Agreement on Tariffs and Trade (GATT)
1994; and
• Article XVI:4 of the WTO Agreement.
16
7.16 We note that on page four, Argentina invokes various articles of the Anti-Dumping
Agreement and other WTO agreements in their entirety, many of which contain multiple obligations,
such as Articles 2, 3 and 6 of the Anti-Dumping Agreement. However, as we stated above, we shall
not read page four of Argentina's panel request in is olation. Argentina's panel request consists of four
pages altogether. We have to scrutinize the text of the panel request as a whole in inquiring whether it
conforms to the requirements of Article 6.2.
7.17 The crux of the US allegation regarding page four of Argentina's panel request is that page
four is vague in the sense of being overly broad. The United States argues that since page four is not
sufficiently clear, it is not possible to discern the na ture of the claims raised in this part of the panel
request.
7.18 In our view, the task before us is not to decide, in the abstract, whether Argentina's panel
request conforms to the requirements of Article 6.2 of the DSU. Rather, the issue is whether Argentina
has, during the course of these proceedings, asked us to address claims which are not identified with
sufficient clarity in its panel request to satisfy the terms of Article 6.2 and thus could not be foreseen
by the defendant and the third parties. To that end, we invited the United States to identify, in
concrete terms, which claims in Argentina's submi ssions to the Panel were based exclusively on page
four of the panel request and therefore should, in the United States' view, be found to be outside our
terms of reference. In response to our question, the United States identified a number of claims raised
by Argentina in its first and second submissions that it considered to fall in this category. In response
to the US allegation, Argentina generally argued th at the United States was attempting to recast
Argentina's claims, and asked the Panel to reject the US allegations in this regard in their entirety.
7.19 The claims that are alleged by the United States to be outside our terms of reference because
of the alleged vagueness on page four of Argentina's panel request 17 and our analysis with regard to
each one of them are as follows:
(i) Section VII.A of Argentina's first written subm ission and section III.A of its second written
submission
7.20 The United States asserts that although section A of Ar gentina’s panel request refers only to
Section 351.218(e) of the USDOC's Regulations, in section VII.A of its first written submission and

16 WT/DS268/2, p.4.
17 See, Response of the United States to Question 22 from the Panel Following the Second Meeting.

section III.A of its second written submission, Arge ntina extends the scope of this claim to Section
351.218(d)(2)(iii) of the Regulations. Argentina submits that the Panel should reject the US
allegation.
7.21 We note that section A.1 of Argentina's panel request reads, in relevant part:
...In particular, 19 U.S.C. § 1675(c)(4) and 19 C.F.R. § 351.218(e) operate in certain
instances to preclude the Department from conducting a sunset review and making a
determination as to whether termination of an anti-dumping duty measure would be
likely to lead to continuation or recurrence of dumping, in violation of Articles 11.1,
11.3...of the Anti-Dumping Agreement. When a respondent interested party is
deemed
 by the Department to have "waived" participation in the Department sunset
review, US law mandates that the Department find that termination of the order
would be likely to lead to continuation or recurrence of dumping, without requiring
the Department to conduct a substantive review and to make a determination based on
the substantive review. (emphasis added)
7.22 We note that, as the United States also concedes 18, the narrative part of section A.1 clearly
refers to US law's provisions relating to deemed waivers and asserts that the USDOC is precluded
from making the requisite determination in these ca ses. We therefore consider that the text of
Argentina's panel request makes it sufficiently clea r that Argentina could pursue a claim challenging
Section 351.218(d)(iii) of the Regulations, which contains the provision that creates the deemed
waivers category under US law.
7.23 Furthermore, we note that the United States also acknowledges that this alleged extension of
Argentina's claim did not cause any prejudice to the United States.19
7.24 We therefore decline the US request for a preliminary ruling in this regard.
(ii) Section VII.B.2 of Argentina's first written submission
7.25 The United States argues that section VII.B.2 of Argentina's first written submission contains
claims regarding 19 U.S.C. 1675(c) and 1675a(c), th e SAA, and the SPB. However, section A of the
panel request refers to 19 U.S.C. 1675(c)(4) only and does not refer to the other provisions of 19
U.S.C. 1675(c), 19 U.S.C. 1675a(c), the SAA, or th e SPB. According to the United States, therefore,
these portions of Argentina's claims are outside the Panel's terms of reference and have to be
disregarded by the Panel. Argentina submits that the Panel should reject the US allegation.
7.26 We note that Section A.4 of Argentina's panel request provides:
The Department's Sunset Determination is in consistent with Article 11.3 of the Anti-
Dumping Agreement, and Article X:3(a) of the GATT 1994 because it was based on
a virtually irrefutable presumption under US law
 as such that termination of the
anti-dumping duty measure would be likely to lead to continuation or recurrence of
dumping. This unlawful presumption is evidenced by the consistent practice of the
Department in sunset reviews (which practice is based on US law and the
Department's Sunset Policy Bulletin). (emphasis added)

18 Footnote 26 to the Response of the United States to Question 22 from the Panel Following the
Second Meeting.
19 First Written Submission of the United States, footnote 103; footnote 26 to the Response of the
United States to Question 22 from the Panel Following the Second Meeting.

7.27 We note that section A.4 of Argentina's panel request takes issue with US law's provisions
relating to the likelihood of continuation or recurrence of dumping determinations. In addition to this
general reference, the mentioned section also cites the SPB and the USDOC's pr actice in this regard.
In our view, this section is sufficiently clear to inform the United States that Argentina may pursue a
claim to challenge the provisions of US law rega rding the alleged irrefutable presumption under US
law concerning the likelihood of continuation or recurrence of dumping dete rminations in sunset
reviews. We consider that the references to 19 U.S.C. 1675(c), 19 U.S.C. 1675a(c) and the SAA on
page four of the panel request, viewed in conjunc tion with section A.4, further clarify that Argentina
can invoke these provisions of US law in its first written submission to the Panel.
(iii) Section VII.E.1 of Argentina's first written submission
7.28 The United States argues that section VII.E.1 of Argent ina's first written submission raises a
claim regarding the United States' administration of its laws, regulations, decisions, and rulings with
respect to sunset reviews in violation of Article X: 3(a) of the GATT 1994. However, section A.4 of
the panel request only challenges the OCTG sunset determination in this rega rd, rather than all US
laws, regulations, decisions, and rulings with respect to all sunset reviews. Argentina submits that
the Panel should reject the US allegation.
7.29 We need not, and do not, address this aspect of the US request for a preliminary ruling here
given that this claim was submitted by Argentina as an alternative to its claim regarding the alleged
irrefutable presumption under US law regarding th e likelihood of continuation or recurrence of
dumping determinations and that we did not address it20.
(iv) Section VIII.C.2 of Argentina's first written submission and section III.D.2 of its second
written submission
7.30 The United States argues that section VIII.C.2 of Ar gentina's first written submission and
section III.D.2 of its second written submission contains a claim regarding the USITC’s application of
19 U.S.C. 1675a(a)(1) and (5) in the instant suns et review even though section B.3 of the panel
request is limited to US law "as such" and makes no reference to the instant sunset review.
Argentina submits that the Panel should reject the US allegation.
7.31 We note that section B of Argentina's panel request reads, in relevant part:
B. The Commission's Sunset Determination was inconsistent with the Anti-
Dumping Agreement and the GATT 1994:

3. The US statutory requirements that the Commission determine whether injury
would be likely to continue or recur "within a reasonably foreseeable time"
(19 U.S.C. § 1675a(a)(1)) and that the Commission "shall consider that the effects of
revocation or termination may not be imminent, but may manifest themselves only
over a longer period of time" (19 U.S.C. § 1675a(a)(5)) are inconsistent with
Articles 11.1, 11.3 and 3 of the Anti-Dumping Agreement. (emphasis added)
7.32 On its face, section B.3 of Argentina's panel re quest seems to be limited to the US statutory
provisions and does not refer to the USITC's applic ation of these statutory provisions in the sunset
review at issue. However, the heading of section B refers to the USITC's determinations in this sunset
review. Therefore, we consider that the text of section B, including the heading, is sufficiently clear

20 See, infra para. 7.169.

to inform the United States that Argentina may challenge the application of the cited statutory
provisions in the sunset review at issue.
(v) Section IX of Argentina's first written submission and section V of its second written
submission
7.33 The United States argues that Article VI of the GATT 1994, Articles 1 and 18 of the Anti-
Dumping Agreement and Article XVI: 4 of the WTO Agreement that are being raised in section IX of
Argentina's first written submission and section V of its second written submission only appear on
page four of Argentina's panel request. According to the United States, therefore, these claims are
outside our terms of reference. Argentina submits that the Panel should reject the US allegation.
7.34 We note that we exercised judicial economy with respect to these consequential claims raised
by Argentina and did not rule on them
21. We therefore need not, and do not, rule on this aspect of the
US request for a preliminary ruling either.
(vi) Section X of Argentina's first written submission
7.35 The United States takes issue with the phrase “US sunset review, statutory, regulatory, and
administrative provisions as such violate the Anti-Dumping Agreement and the WTO Agreement” in
the conclusion part of Argentina's first written subm ission and argues that the only basis for this
general assertion is page four of Argentina's panel request. Argentina submits that the Panel should
reject the US allegation.
7.36 We note that the phrase cited by the United States is heading A under the "Conclusion"
section of Argentina's first written submission. As evidenced by its name, rather than introducing
new claims, the conclusion is intended to, and does in fact, repeat the claims already raised by
Argentina throughout its first submission. Given that we have not made substantive rulings regarding
the "Conclusion" section of Argentina's first written su bmission, we need not, and do not, address this
aspect of the US request for a preliminary ruling.
(vii) Section III.B of Argentina's second written submission
7.37 Regarding the alleged irre futable presumption, the United States argues that the claim raised
in section III.B of Argentina's second written submission regarding certain provisions of the US
Statute, the SAA and the SPB are outside our terms of reference because section A.4 of Argentina's
panel request only contains a claim aimed agai nst the application of an alleged irrefutable
presumption in the instant sunset review. Argentina submits that the Panel should reject the US
allegation.
7.38 We note once again that section A.4 of Argentina's panel requests provides:
The Department's Sunset Determination is in consistent with Article 11.3 of the Anti-
Dumping Agreement, and Article X:3(a) of the GATT 1994 because it was based on
a virtually irrefutable presumption under US law
 as such that termination of the
anti-dumping duty measure would be likely to lead to continuation or recurrence of
dumping. This unlawful presumption is evidenced by the consistent practice of the
Department in sunset reviews (which practice is based on US law and the
Department's Sunset Policy Bulletin). (emphasis added)
7.39 Given the two clear references in this sectio n to US law regarding the alleged irrefutable
presumption, we consider that Argentina's panel requ est made it sufficiently clear to the United States

21 See, infra para. 7.342.

that Argentina could be raising a claim aimed ag ainst US law as such concerning this alleged
irrefutable presumption.
(viii) Conclusion
7.40 In conclusion, we decline the US request fo r preliminary rulings relating to the alleged
vagueness of the claims set forth on page four of Argentina's panel request.
(b) References to Articles 6 or 3 of the Anti-Dumpi ng Agreement in sections B.1, B.2 and B.3 of
the panel request
7.41 The United States argues that Argentina's references to Article 6 of the Anti-Dumping
Agreement in sections B.1 and B.2, and to Article 3 in section B.3, of its panel request in their entirety
fail to present the problem clearly. According to the United States, since Articles 3 and 6 of the Anti-
Dumping Agreement both contain multiple obligations, the mere listing of these articles in their
entirety makes it impossible to discern the nature of Argentina's problem, inconsistently with
Article 6.2 of the DSU. The United States also claims to have suffered prejudice due to these
deficiencies in sections B.1, B.2 and B.3 of Arge ntina's panel request because it did not know what
case to answer. Therefore, the United States requires us to find that the claims of inconsistency with
Article 6 in sections B.1 and B.2 and the claim of inconsistency with Article 3 in section B.3 of
Argentina's panel request are not within our terms of reference.
7.42 Regarding the references to Article 6, Argentina submits that these references present the
problem clearly because Article 6 is relevant to suns et reviews in its entirety. With regard to the
reference to Article 3, Argentina similarly argues that given that Article 3 is generally applicable to
sunset reviews and that it is particularly relevant to the issue of the time-frame on the basis of which
sunset determinations have to be made, this refe rence also presents the problem clearly. Argentina
argues that Article 6.2 requires that claims – not ar guments – be set out in the panel request and that
its panel request sets out its claims under Articles 3 and 6 with sufficient clarity. Finally, Argentina
asserts that we should decline the US request becaus e the United States has not been prejudiced in its
right to defend itself due to the alleged inconsistenc y with Article 6.2 of sections B.1, B.2 and B.3 of
its panel request.
7.43 We note that the contested sections B.1 through B.3 of Argentina's panel request read:
The Commission's Sunset Determination was inconsistent with the Anti-
Dumping Agreement and the GATT 1994:
1. The Commission's application of th e standard for determining whether the
termination of anti-dumping duty measure woul d be "likely to lead to continuation or
recurrence of ... injury" was inconsistent with Articles 11, 3 and 6 of the Anti-
Dumping Agreement. The Commission failed to apply the plain and ordinary
meaning of the term "likely" and instea d applied a lower standard in assessing
whether injury would continue or recur in the event of termination, in violation of
Articles 11.1, 11.3, 11.4, 3.1, 3.2, 3.3, 3.4, 3.5, and 6 of the Anti-Dumping
Agreement.
2. The Commission failed to conduct an "objective examination" of the record
and failed to base its determination on "positive evidence" regarding whether
termination of the anti-dumping duty measure "would be likely to lead to
continuation or recurrence" of injury. In particular, the Commission's conclusions
with respect to the volume of imports, price effects on domestic like products, and
impact of imports of the domestic industry demonstrate the Commission's failure to
conduct an objective examination in violation of Articles 11, 3, and 6. The

Commission's findings on these issues do not constitute "positive evidence" of likely
injury in the event of termination, in viol ation of Articles 11.1, 11.3, 11.4, 3.1, 3.2,
3.3, 3.4, 3.5, and 6 of the Anti-Dumping Agreement.
3. The US statutory requirements that the Commission determine whether injury
would be likely to continue or recur "within a reasonably foreseeable time"
(19 U.S.C. § 1675a(a)(1)) and that the Commission "shall consider that the effects of
revocation or termination may not be imminent, but may manifest themselves only
over a longer period of time" (19 U.S.C. § 1675a(a)(5)) are inconsistent with
Articles 11.1, 11.3 and 3 of the Anti-Dumping Agreement.
7.44 We note that sections B.1 and B.2 contain a numb er of references to specific paragraphs of
Articles 11 and 3 of the Anti-Dumping Agreement and a general reference to Article 6. Section B.1
contains Argentina's claim regarding the standard ap plied by the USITC in the instant sunset review,
whereas section B.2 deals with the USITC's alleged failure to carry out an objective examination. We
note, however, that with respect to both claims, Argentina has not invoked Article 6 in its submissions
to the Panel during these proceedings. Consequently, in our report, we have not made any findings
with regard to Article 6 under these two claims. We therefore need not, and do not, rule on the US
request for a preliminary ruling concerning the gene ral references to Article 6 of the Anti-Dumping
Agreement in sections B.1 and B.2 of Argentina's panel request.
7.45 Turning to section B.3, we note th at this section contains a gene ral reference to Article 3, as
well as specific references to two individual paragraphs of Article 11 of the Anti-Dumping
Agreement. We also note that in its submissions to the Panel, although Argentina cited various
subparagraphs of Article 3 in support of its claim challenging US law's provisions regarding the time-
frame on the basis of which the USITC carries out its likelihood determinations, it only developed
arguments under paragraphs 7 and 8 thereof. Therefore, the issue is whether section B.3 of
Argentina's panel request was sufficiently clear to inform the United States that Argentina could
invoke Articles 3.7 and 3.8 as part of this claim.
7.46 As we have already stated, Article 3 contains, in its various paragraphs, detailed rules dealing
with injury determinations in anti-dumping investig ations. These provisions govern different aspects
of injury determinations. Paragraphs 7 and 8, in their turn, deal with threat of material injury
determinations in anti-dumping inves tigations. Article 3 sets out certa in factors to be considered in
threat of material injury determinations whereas Article 3.8 requires that special care be exercised in
the application of anti-dumping meas ures on the basis of a threat of material injury. Among other
things, Article 3.7 also contains provisions regarding the timing aspect of threat of material injury
determinations. In this context, we note that the chapeau of Article 3.7 reads in the relevant part:
A determination of a threat of material inju ry shall be based on facts and not merely
on allegation, conjecture or remote possibility
. The change in circumstances which
would create a situation in which the dump ing would cause injury must be clearly
foreseen and imminent10....

"imminent", "within a reasonably fore seeable time" and "over a longer period of time" in section B.3
of Argentina's panel request demonstrates that the panel request was sufficiently clear to allow the
United States to expect that Argentina could be relying on Articles 3.7 and 3.8 in its submissions to
the Panel in this regard. We th erefore conclude that although Article 3 of the Agreement contains
multiple obligations that apply to different aspects of injury determinations, in the circumstances of
the present proceedings, section B.3 of Argentina's panel request was sufficiently clear to inform the
United States about the nature of the claim that could be pursued by Argentina.
(i) Conclusion
7.48 In conclusion, we decline the US request for preliminary rulings regarding the citation of
Articles 6 and 3 of the Anti-Dumping Agreement in their entirety in sections B.1 through B.3 of
Argentina's panel request.
2. Certain Claims That Have Allegedly Not Been Raised in Argentina's Panel Request
7.49 The United States asserts that certain claims that appear in Argentina's first written
submission are not within our terms of reference because these claims have not been raised in
Argentina's panel request.
7.50 Argentina argues that none of the matters referred to by the United States in this context are
new because they are all found in Argentina's panel request. Further, Argentina submits that in order
for an allegation of inconsistency with Article 6.2 to prevail, the defending party has to prove actual
prejudice resulting from the alleged deficiency, whic h, according to Argentina, the United States has
not done so far.
7.51 Claims which, in the United States' view, are outside our terms of reference and our analysis
with respect to each of them are as follows:
(a) Argentina's claim challenging the US practice as such and as applied in the instant sunset
review regarding the alleged irrefutable presumption in sunset reviews
7.52 The United States submits that Argentina's claim challenging the US practice as such and as
applied in the instant sunset review regarding the a lleged irrefutable presumption in sunset reviews is
not included in its panel request and therefore the Panel should find these claims to be outside its
terms of reference.
7.53 Argentina argues that section A.4 of its panel reque st contains both an "as such" and an "as
applied" claim regarding the US practice concerning the alleged irrefutable presumption in sunset
reviews.
7.54 We note that section A.4 of Argentina's panel request reads:
4. The Department's Sunset Determination
 is inconsistent with Article 11.3 of
the Anti-Dumping Agreement, and Article X:3(a) of the GATT 1994 because it was
based on a virtually irrefutable presumption under US law as such that termination of
the anti-dumping duty measure would be likely to lead to continuation or recurrence
of dumping. This unlawful presumption is evidenced by the consistent practice of the
Department in sunset reviews (which practice i s b a s e d o n U S l a w and the
Department's Sunset Policy Bulletin). (emphasis added)

7.55 We also note that we did not rule on Arge ntina's claim regarding the USDOC's practice as
such in this regard.
22 We therefore need not, and do not, rule on this aspect of the US request for a
preliminary ruling.
7.56 In our view, however, it is nevertheless clear that section A.4 takes issue with an alleged
irrefutable presumption in the context of sunset review s. Further, the first sentence links this alleged
presumption to the USDOC's determination in the instant sunset review whereas the second sentence
links it to the USDOC's practice.
(b) Argentina's claim regarding the alleged irrefutable presumption under US law as such
7.57 The United States asserts that Argentina's claim that 19 USC. §§ 1675(c) and 1675(a)(c), the
SAA, and the SPB, taken together, establish an irre futable presumption that is inconsistent with
Article 11.3 of the Anti-Dumping Agreement is not within our terms of reference because this claim is
not set out in Argentina's panel request. The United St ates argues that section A.4, which is the only
place where Argentina is raising its claim regardi ng this alleged presumption, is limited to the
USDOC's determinations in this sunset review and thus does not challenge the US law.
7.58 Argentina submits that section A.4 of its panel reque st clearly states that Argentina's claim
regarding the irrefutable presumption is premised on Argentina's allegation that the US law contains
such a presumption. Therefore, this claim is within the Panel's terms of reference.
7.59 We note once again that section A.4 of Argentina's panel request reads:
4. The Department's Sunset Determination is inconsistent with Article 11.3 of
the Anti-Dumping Agreement, and Article X:3(a) of the GATT 1994 because it was
based on a virtually irrefutable presumption under US law as such that termination of
the anti-dumping duty measure would be likely to lead to continuation or recurrence
of dumping. This unlawful presumption is evidenced by the consistent practice of the
Department in sunset reviews (whi ch practice is based on US law
 and the
Department's Sunset Policy Bulletin). (emphasis added)
7.60 We note that section A.4 of the panel request contains the phrases "irrefutable presumption
under US law as such" and "practice is based on US law and the Department's Sunset Policy
Bulletin". Thus, we consider that the text of this section is sufficiently clear to put the United States
on notice that Argentina may pursue a claim against US law as such regarding the alleged irrefutable
presumption.
(c) Argentina's claim under Article X:3(a) of the GATT 1994
7.61 The United States argues that section VII.E of Argentina's first written submission introduces
a claim of inconsistency with Article X:3(a) of th e GATT 1994 regarding the US practice as such and
as applied in the instant sunset review. However, in the view of the United States, section A.4 of
Argentina's panel request challenges only the USDO C's sunset determination in the instant sunset
review, not the US practice as such.
7.62 Argentina argues that section A.4 of its panel request clearly contains a claim under
Article X:3(a) of the GATT 1994 regarding the US practice as such and as applied in the instant
sunset review.

22 See, infra, para. 7.168.

7.63 We note that this aspect of the US request for a preliminary ruling is the same as the one the
United States raised in the context of its challenge regarding page four of Argentina's panel request.
Therefore, on the basis of our above analysis (supra, para. 7.29) we decline the US request here.
(d) Argentina's claim regarding the USITC's sunset determinations in the instant sunset review
7.64 The United States contends that section VIII.C.2 of Argentina's first written submission
contains a claim regarding the USITC’s application of 19 U.S.C. 1675a(a)(1) and (5) in the instant
sunset review. According to the United States, ho wever, the relevant portion of Argentina's panel
request, section B.3, is limited to the US statutor y provisions "as such" and makes no reference to the
instant sunset review.
7.65 Argentina asserts that the heading of section B of its panel request clearly states that
Argentina is also challenging the application of the US statutory provisions by the USITC in the
instant sunset review.
7.66 We note that this aspect of the US request for a preliminary ruling is the same as the one the
United States raised in the context of its challenge regarding page four of Argentina's panel request.
Therefore, on the basis of our above analysis (supra, paras. 7.31-7.32) we decline the US request here.
(e) Argentina's consequential claims under Article s 1 and 18 of the Anti-Dumping Agreement,
Article VI of the GATT 1994 and Article XVI:4 of the WTO Agreement
7.67 The United States submits that Article VI of the GATT 1994, Articles 1 and 18 of the Anti-
Dumping Agreement and Article XVI: 4 of the WTO Agreement that are being raised in section IX of
Argentina's first written submission only appear on pa ge four of Argentina's panel request. Given the
US assertion that page four is not within our term s of reference, the United States argues that we
should find these claims to be outside our terms of reference.
7.68 Argentina argues that given that these provisions are cited as consequential claims, their
mere citation on page four of Argentina's panel reque st is sufficient to present the problem clearly in
conformity with Article 6.2 of the DSU.
7.69 We note that this aspect of the US request for a preliminary ruling is the same as the one the
United States raised in the context of its challenge regarding page four of Argentina's panel request.
Therefore, on the basis of our above analysis (supra, para. 7.34) we decline to rule on the US request.
(f) Conclusion
7.70 In conclusion, we decline the US request for preliminary rulings regarding certain matters that
are allegedly not raised in Argentina's panel request.
3. The Issue of Prejudice
7.71 Finally, we note that as our analysis with resp ect to the totality of the United States' request
for preliminary rulings was based on a textual analys is of Argentina's panel request, we did not need
to inquire into the issue of whether the United States had been prejudiced in its right to defend itself in
the present proceedings due to the alleged inconsiste ncies in the panel request. We nevertheless note
that the United States has not shown to the Panel that it had been prejudiced in its right to defend itself
in these proceedings due to these alleged inconsistencies in Argentina's panel request. In several
instances, the United States argued that it did not know what case it had to answer because of the lack

of precision with respect to certain parts of Argentina's panel request.
23 However, we consider that
without supporting arguments, this simple allegation can not be taken to establish prejudice.24
C. CLAIMS REGARDING US LAW25 AS SUCH
1. Waiver Provisions under US Law
(a) Arguments of parties
(i) Argentina
7.72 Argentina argues that Section 751(c)(4) of the Tariff Act and Section 351.218(d)(2)(iii) of the
Regulations ("hereinafter "waiver provisions"), which relate to the circumstances in which an exporter
waives its right to participate in a sunset review, ar e inconsistent with Article 11.3 of the Agreement.
Argentina submits that these waiver provisions, un der certain circumstances, direct the USDOC to
find likelihood of continuation or recurrence of du mping without carrying out a substantive review as
required under Article 11.3. Argentina contends that Article 11.3 requires th e investigating authority
to take an active role in sunset reviews. In order to make the required determination under
Article 11.3, the investigating authority has to gather and evaluate relevant facts. It can not passively
assume that dumping is likely to continue or recur.
7.73 According to Argentina, the US waiver prov isions also violate Articles 6.1, 6.2 and
consequently 11.4 of the Agreement because they de ny exporters involved in a sunset review the
opportunity to submit evidence to the investigating authority and to defend themselves in sunset
reviews.
(ii) United States
7.74 According to the United States, apart from th e cross-references in Articles 11.4 and 12.3,
Article 11.3 is the only provision in the Agreement that sets out the rules that govern sunset reviews.
Aside from the obligations set out in these provisions, the Agreement leaves the conduct of sunset
reviews to the discretion of the investigati ng authorities. Article 11.3 does not require the
investigating authorities to conduct a full sunset re view, as defined under US law, in all cases.
Investigating authorities would have wasted their an d some private parties' resources had they been
required to conduct a full sunset review in all ca ses. The United States argues that the waiver
provisions simply determine the factual ba sis upon which the USDOC will make sunset
determinations and in no way prevent the USDOC from making the requisite likelihood determination
under Article 11.3. The waiver provisions effectua te the expeditious completion of sunset reviews
vis-à-vis interested parties that fail to submit substant ive responses to the notice of initiation of a
sunset review, as allowed under Article 6.14 of the Agreement.
7.75 The United States also contends that the waiver provisions do not contradict Articles 6.1 and
6.2 of the Agreement. The United States argues th at US law provides interested parties in sunset
reviews with ample opportunity to submit evidence and to defend their interests as required in these
provisions. According to the United States, sinc e the evidentiary standards for expedited sunset

23 See, for instance, First Written Submission of the United States, para. 110; Second Oral Submission
24 We find support for this approach in the Appellate Body decision in Korea-Dairy and the panel
decision in HFCS. See, Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of Certain
Dairy Products ("Korea – Dairy "), WT/DS98/AB/R, adopted 12 January 2000, DSR 2000:I, 3, para. 131; Panel
Report, Mexico – Anti-Dumping Investigation 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, para. 7.17.
25 Throughout this report, we use the term "US law" to refer to the relevant statutory provisions, the
Regulations and other legal instruments in the US legal system, such as the SAA and the SPB.

reviews provided for under US law are consistent w ith Article 6, the fact that the United States
provides interested parties in full sunset review s with extended opportunities to submit evidence can
not render US law WTO-inconsistent.
(b) Arguments of third parties
(i) European Communities
7.76 The European Communities criticises the SAA' s mere concentration on the issue of the
extraordinary administrative burden on the agency resources and on achieving administrative
efficiency. Though acknowledging the importance of such objective, the European Communities
submits that, as a matter of WTO law, resource allo cation issues could never justify the disregard of
Article 11.3 in sunset reviews.
(ii) Japan
7.77 Japan agrees with Argentina that the waiver provisions of US law are inconsistent with
Articles 6, 11.3 and 18.4 of the Anti-Dumping Agreement and Article XVI:4 of the WTO Agreement.
(iii) Korea
7.78 Korea submits that all interested parties have to be given the opportunity to present evidence
and to defend their interests. In Korea’s view, expedited sunset reviews – whether on the basis of
waiver or inadequacy – conflict with Articles 6.1 and 6.2. Korea also argues that the USDOC's
practice does not comply with the provisions of Ar ticle 6.8 and Annex II of the Agreement governing
the use of facts available.
(iv) Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu
7.79 According to the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu,
although the conduct of an expedited sunset review in and of itself is not WTO-inconsistent, the
provisions that direct the USDOC to make a likelihood determination in cases where interested parties
waive their right to participate are inconsistent with Article 11.3 of the Agreement.
(c) Evaluation by the Panel
(i) Alleged Violations of Article 11.3 of the Agreement
Measures at issue
7.80 Argentina challenges the waiver provisions of US law as such. 26 Specifically, Argentina's
claim relates to Section 751(c)(4) of the Tariff Act and Section 351.218(d)(2)(iii) of the Regulations.
Argentina does not challenge Secti on 351.218(d)(2)(i) of the Regulations. We did, however, refer to
Section 351.218(d)(2)(i) of the Regulations as context for analysis below.
7.81 Section 751(c)(4) of the Tariff Act of 1930 provides, in relevant part:
(4) Waiver of participation by certain interested parties
(A) In general

26 Argentina is not challenging the provisions of US law regarding expedited sunset reviews as such.
See, Response of Argentina to Question 1 from the Panel Following the Second Meeting.

An interested party described in section 16 77(9)(A) or (B) of this title may elect not
to participate in a review conducted by the administering authority under this
subsection and to participate only in the review conducted by the Commission under
this subsection.
(B) Effect of waiver
In a review in which an interested party waives its participation pursuant to this
paragraph, the administering authority shall conclude
 that revocation of the order or
termination of the inves tigation would be likely to lead to continuation or recurrence
of dumping or a countervailable subsidy (as the case may be) with respect to that
interested party.27 (emphasis added)
7.82 Next, we turn to Section 351.218(d)(2) of the USDOC's Sunset Regulations, which provides
in relevant part:
(2) Waiver of response by a respondent interested party to a notice of initiation–
(i) Filing a Statement of Waiver. A re spondent interested party may waive
participation in a sunset review before the Department under Section 751(c)(4) of the
Act by filing a Statement of Waiver with th e Department, not later than 30 days after
the date of publication in the Federal Re gister of the notice of initiation. If a
respondent interested party waives partic ipation in a sunset review before the
Department, the Secretary will not accept or consider any unsolicited submissions
from that party during the course of the review. Waiving participation in a sunset
review before the Department will not affect a party's opportunity to participate in the
sunset review conducted by the International Trade Commission. (emphasis added)

(iii) No response from an interested party. The Secretary will consider the failure
 by a
respondent interested party to file a comp lete substantive response to a notice of
initiation under paragraph (d)(3) of this section as a waiver of participation in a sunset
review before the Department.28 (emphasis added)
7.83 We note that Section 751(c)(4)(A) of the Tariff Act provides that an interested party may
elect to waive its participation in sunset review proceedings conducted by the USDOC and participate
only in sunset review proceedings conducted by the USITC. Section 351.218(d)(2)(i) of the
Regulations provides that an inte rested party may waive participatio n by filing a statement of waiver
with the USDOC. We will refer to this as an "explicit" or "affirmative" waiver. Further, according to
Section 351.218(d)(2)( iii) of the Regulations, the USDOC will c onsider the failure of an interested
party to submit a complete substantive response to the notice of initiation of a sunset review to
constitute a waiver of participation in the USDOC's sunset review proceedings. We will refer to this
as an "implicit" or "deemed" waiver.
7.84 On the basis of the above-cited provisions of US law, we understand the operation of the
waiver provisions to be as follows: Following the publication of the notice of initiation of a sunset
review, foreign exporters (referred to as "respondent interested parties" under US law) which desire to
participate in the sunset review proceedings befo re the USDOC must submit a complete substantive
response to the USDOC. For the substantive response to be complete, it has to contain all of the items
listed in Section 351.218(d)(3) of the Regulations. According to Section 751(c)(4)(A) of the Tariff

27 Codified in 19 U.S.C. § 1675(c)(4) (Exhibit ARG-1 at 1152).
28 Codified in 19 C.F.R. § 351.218(d)(2) (Exhibit ARG-3).

Act, an interested party in a sunset review may el ect to waive its right to participate in the USDOC
part of a sunset review. Section 351.218(d)(2)(i) of the Regulations provides that interested exporters
who wish to waive participation may do so by submitting a statement of waiver to the USDOC.
Under Section 351.218(d)(2)(iii) of the Regulations, an exporter's failure to submit a complete
substantive response to the notice of initiation is deemed to constitute a waiver of its right to
participate in the USDOC proceedings. In either case, the application of Section 1675(c)(4) of the
Tariff Act leads to the same result: The USDOC "s hall" find likelihood of continuation or recurrence
of dumping with respect to an exporter which waives its right to participate.
7.85 We consider it important to note that the dis tinction between affirmative and deemed waivers
stems from Section 351.218(d)(2)(iii) of the Regulations, not the Tariff Act. The Tariff Act simply
provides that interested parties ma y choose not to participate in the USDOC part of a sunset review,
and that the effect of a waiver is an affi rmative finding of likelihood by the USDOC.
Section 351.218(d)(2)(iii) of the Regulations, howev er, creates the deemed waiver category by
stipulating that submission of an incomplete, or no, response to the notice of initiation also constitutes
a waiver. Therefore, our findings regarding affirmative waivers will have implications on the Tariff
Act whereas those relating to deemed waivers will only affect Section 351.218(d)(2)(iii) of the
Regulations.
Nature of the obligations in Article 11.3
7.86 Argentina contends that the above-cited waiver provisions of US law are inconsistent with the
investigating authorities' obligation to determine li kelihood of continuation or recurrence of dumping
under Article 11.3 of the Agreement.
7.87 Article 11.3 of the Anti-Dumping Agreement reads:
Notwithstanding the provisions of paragraphs 1 and 2, any definitive anti-dumping
duty shall be terminated on a date not late r than five years from its imposition (or
from the date of the most r ecent review under paragraph 2 if that review has covered
both dumping and injury, or under this pa ragraph), unless the authorities determine,
in a review initiated before that date on their own initiative or upon a duly
substantiated request made by or on behalf of the domestic industry within a
reasonable period of time prior to that date, that the expiry of the duty would be likely
to lead to continuation or recurrence of dumping and injury. 22 The duty may remain
in force pending the outcome of such a review.

of positive evidence that dumping is likely to con tinue or recur should the measure be revoked. The
obligation to make such a determination precludes an investigating authority from simply assuming
that likelihood exists. The authority must act with an appropriate degree of diligence and arrive at a
reasoned conclusion on the basis of information gather ed as part of a process of reconsideration and
examination.
30
7.89 Accordingly, we consider that Article 11.3 requires that 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 in a sunset review. We will therefore consider whether the
waiver provisions of US law prevent the USDOC fr om making such a determination in situations
where an interested party has waived its right to participate in a sunset review .31
Examination of the consistency of the waiver provisions
7.90 In the context of its claim under Article 11.3 of the Agreement, Argentina is challenging the
provisions of US law relating to both affirmative and deemed waivers. 32 We will, therefore, analyse
both of these two types of waivers in light of th e investigating authorities' obligation to determine
likelihood of continuation or recurrence of dumping under Article 11.3.
Deemed waivers
7.91 We recall that under 351.218(d)(2)(iii) of the USDOC's Regulations, there will be a deemed
waiver in cases where an exporter submits an incomp lete – or no – substantive response to the notice
of initiation of a sunset review. Pursuant to S ection 751(c)(4)(B) of the Tariff Act, which makes no
distinction between affirmative an d deemed waivers, the consequence of a waiver is a finding of
likelihood of continuation or recurrence of dumping by the USDOC with respect to that exporter.
7.92 The first factual situation that leads to a deemed waiver is the submission by an exporter of an
incomplete substantive response to the notice of initiation of a sunset review. In this case, the
exporter intends to participate in the sunset review and submits information to the USDOC. However,
the submission is not complete, i.e. it does not cont ain all the information that US law requires to be
submitted in a substantive response to the notice of initiation of a sunset review. US law mandates a
finding of likelihood in this case.
7.93 In our view, where the foreign exporter submit s information to the USDOC, the obligation to
make a reasoned determination of likelihood unde r Article 11.3 of the Agreement requires the
USDOC to take that information into consideration in its sunset determination. 33 Taken together,
however, Section 751(c)(4)(B) of the Tariff Act and Section 351.21 8(d)(2)(iii) direct the USDOC to
find that likelihood exists with respect to a give n exporter simply because the exporter's substantive
response to the notice of initiation does not contain so me of the information prescribed under US law.

30 We find support for this approach in the Appellate Body decision in US – Corrosion-Resistant Steel
Sunset Review . See, 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, 15 December 2003, paras. 111-115.
31 We note that it is clear, and United States has not argued to the contrary, that waiver provisions bind
the USDOC. Therefore, in the context of Argentina's present claim, we do not need to address the applicability
of the mandatory/discretionary distinction. The only issue in this context is whether or not the content of the
waiver provisions is WTO-inconsistent.
32 Response of Argentina to Question 1 from the Panel Following the Second Meeting.
33 Except, of course, to the extent it was entitled to disregard such information pursuant to Article 6.8
and Annex II of the Agreement. The United States has not, however, argued that US law regarding waiver
provisions can be justified under those provisions. This does not of course prejudge the credibility and relevance
of, and weight to be given to, the information submitted by an exporter, which will vary from case to case. The
waiver provisions of US law, however, preclude the USDOC from considering these matters.

Thus, the USDOC is precluded from taking into consid eration, in its determin ation with respect to a
given exporter, the facts submitted by that exporter (o r any other facts before it that might be relevant
to its determination), and it is further precluded from receiving, much less considering, any other facts
relevant to this question. To the contrary, it is required to make an affirmative determination on the
basis of one fact alone: the failure of the exporter to submit a complete substantive response to the
notice of initiation of a sunset review. 34 In our view, this can not be a determination supported by
reasoned and adequate conclusions based on the facts before an investigating authority.
7.94 The second situation that may lead to a deemed waiver is failure to respond at all to the notice
of initiation of a sunset review. In this case, the exporter concerned neither explicitly waives its right
to participate nor submits any information to the USDOC. Under Section 351.218(d)(2)(iii) of the
Regulations, this situation is also deemed to constitute a waiver of participation.
35 Pursuant to
Section 751(c)(4)(B) of the Tariff Act, the USDOC is required to find likelihood with respect to the
exporter that remains silent following the publication of the notice of initiation.
7.95 We recall our view that Article 11.3 requires that an investigating authority's determination
that dumping is likely to continue or recur be supported by reasoned and adequate conclusions based
on the facts before the authority in a sunset review. In the factual situation we are now analyzing, the
failure of the exporter to put any information before the USDOC may mean that the USDOC has little
or no information before it that is relevant to whether dumping by that exporter is likely to continue or
recur (although some relevant evidence, such as the results of administrative reviews, may
nevertheless be available). Such non-cooperation clearly is not without consequences for the
exporter. Under these circumstances, the USDOC may, consistent with the terms of Article 6.8 and
Annex II of the Agreement, resort to the use of the facts available, including information from
secondary sources. As Annex II clearly indicates, "this situation could lead to a result which is less
favourable to the party than if the party did cooperate" . It is clear to us that in this context, the
USDOC may have no choice but to make its determ ination on the basis of a more limited and less
robust record than would exist had the exporter co-o perated. This does not, however, mean that the
USDOC may be automatically authorized, and indeed required, to make an affirmative finding that
the continuation or recurrence of dumping by the exporter is likely, without any further inquiry and
irrespective of any rele vant evidence before it.
36 In our view, an affirmative determination based
exclusively upon the fact that the exporter did not respond to a notice of initiation, and which
disregards entirely even the possibility that other re levant information might be in the record, is not
supported by reasoned and adequate conclusions based on the facts before an investigating authority,
inconsistently with Article 11.3.
37

34 We note that Section 351.218(d)(2)(iii) of the USDOC's Regulations does not take account of the
amount of the missing information in a substantive response to the notice of initiation when declaring that
response to be "incomplete". In other words, this section provides on its face that no matter how minimal the
quantity or the quality of the missing information is, if the response to the notice of initiation is incomplete the
result will be an automatic finding of likelihood of continuation or recurrence of dumping by the USDOC.
35 The United States confirmed that under US law failure to respond at all to the notice of initiation of a
sunset review is equal to the submission of an incomplete substantive response. Response of the United States
to Question 8 from the Panel Following the First Meeting.
36 As previously noted (supra, note 33), the United States does not argue that its waiver provisions may
be justified under Article 6.8 and Annex II of the Agreement.
37 We note that this approach to non-cooperation in a sunset review is no different from the approach
that an investigating authority takes in an original investigation. If an exporter fails to respond to a
questionnaire or otherwise to participate in an investigation, the investigating authority may resort to the facts
available. While it is likely, and perhaps highly probable, that the investigating authority's determination based
on facts available will be unfavourable to the exporter, this would not exclude the investigating authority from
the obligation to make a determination based on such information as was available to it pursuant to the rules set
forth in Article 6.8 and Annex II of the Agreement.

Affirmative waivers
7.96 Under Section 751(c)(4)(A) of the Tariff Act an d Section 351.218(d)(2)(i) of the Regulations,
an exporter may file a statement of waiver declarin g that it will not participate in the USDOC portion
of a sunset review. In this situation, Section 751( c)(4)(B) directs the USDOC to make an affirmative
finding of likelihood with regard to the exporter that explicitly waives its right to participate in the
USDOC part of the sunset review.
7.97 Argentina asserts that Section 751(c)(4)(B) of the Tariff Act requires a finding of likelihood
for an exporter that explicitly waives its right to pa rticipate in a sunset review and is inconsistent with
the obligation to determine set out in Article 11.3 of the Agreement. According to Argentina, the
investigating authority has the obligation to carry out an examination on the basis of positive evidence
to make a reasoned determination even in a case of an affirmative waiver. It can not simply assume
that dumping is likely to continue or recur without any analysis.
38
7.98 We note that in a sunset review where an exporter explicitly states that it intends not to
participate in the review, it is likely to be much ea sier for the investigating authority to discharge its
obligation to determine likelihood with respect to that particular exporter, compared with an exporter
that fully cooperates with the investigating authority. This is because in most cases the bulk of the
information concerning the issue of whether an exporter is likely to continue or recur to dump in the
event of revocation of the order will be submitted by the exporter concerned.
7.99 We nevertheless consider that even in a case of affirmative waiver, the investigating
authority's obligation to make a determination supported by reasoned and adequate conclusions based
on the facts before it continues to apply. The investigating authority can not simply assume, without
further inquiry, that dumping is likely to con tinue or recur because the exporter chose not to
participate in the review. In this respect, we incorporate our above analysis ( supra, paras. 7.94-7.95)
regarding deemed waivers in cases where the exporter remains sile nt following the initiation of the
sunset review. In our view, therefore, the provis ions of US law relating to affirmative waivers are
also inconsistent with the obligation to determine likelihood of continuation or recurrence of dumping
under Article 11.3 of the Agreement.
Company-specific vs. order-wide sunset determinations

7.100 The United States submits that, under US law, the final likelihood determination in a sunset
review is made on an order-wide basis for a co untry. Although US law mandates an affirmative
finding of likelihood with respect to exporters that have waived their right to participate in a sunset
review, it does not do so with respect to the order-wide determination. 39 Therefore, depending on
whether there are exporters that have waived their right to participate, a US sunset review may include
two steps: If no exporter has waived its right to participate, there will only be one sunset
determination, which will be made on an order-wide basis. If, howe ver, some exporters have waived
their right to participate, then the USDOC will ma ke an affirmative likelihood determination with
respect to these exporters. The USDOC will then make a final order-wide s unset determination for
the country.40 Depending on the share of the exporters that have submitted a complete substantive

38 Response of Argentina to Question 1 from the Panel Following the Second Meeting.
39 Response of the United States to Questions 4(c) and 5(d) from the Panel Following the First
Meeting; Second Written Submission of the United States, para. 21.
40 Under US law, in cases where the respondent interested parties submitting a complete substantive
response to the notice of initiation account for less than 50 per cent of the total exports of the subject product
into the United States over the five-year period preceding the initiation of the sunset review, their complete
substantive responses will be considered to be inadequate under Section 351.218(e)(1)(ii)(A) of the Regulations.
According to Section 751(c)(3 )(B) of the Tariff Act and Section 351.218( e)(1)(ii)(C)(2) of th e Regulations, in
case of an inadequate substantive response, the USDOC will conduct an expedited sunset review and will,
"without further investigation", make its sunset determinations on the basis of facts available.

response to the notice of initiation, that final dete rmination will be made either through a full or an
expedited sunset review. The United States, therefore, submits that the waiver provisions do not
violate Article 11.3 of the Agreement because they do not determine, in and of themselves, the final
outcome of a sunset review; they only determine the outcome of the first step.41
7.101 Even focusing on the final order-wide determin ation, we find the US argument unconvincing.
As explained above, Article 11.3 requires that an investigating authority's determination that
continuation or recurrence of dumping is likely must be supported by reasoned and adequate
conclusions based on the facts before it. The United States concedes that company-specific likelihood
determinations are "considered" when making an order-wide likelihood determination, and argues
only that they do not determine, in and of themselves, the order-wide result. 42 To the extent that the
order-wide determination of likelihood is based in whole or in part upon a company-specific
determination that was improperly established, we do not see how the order-wide determination can
be supported by reasoned and adequate conclusions based on the facts before the investigating
authority.
7.102 We note in this regard that a company-specific determination of likelihood may have a
significant, if not conclusive, impact on an order-wide determination. Where, for example, the
exporter that has waived participa tion is the only exporter, the company-specific result is likely to be
conclusive. In fact, we asked the United States whether the USDOC had ever made an affirmative
likelihood determination with respect to some exporters that had waived their right to participate, and
then found no likelihood on an order-wide basis. The United States responded in the negative.
43 Nor
has the United States cited a provision of US la w that clearly states that the order-wide sunset
determinations are independent from the company-sp ecific determinations made pursuant to the
waiver provisions.
Conclusion
7.103 In conclusion, we find that both affirmative a nd deemed waivers provisio ns of US law, i.e.
Section 751(c)(4)(B) of the Tariff Act and Section 351.218(d)(2)(iii) of the USDOC's Regulations, are
inconsistent with the investigating authorities' ob ligation to determine likelihood of continuation or
recurrence of dumping under Article 11.3 of the Anti-Dumping Agreement.
(ii) Alleged Violations of Articles 6.1 and 6.2 of the Agreement
7.104 Argentina argues that deemed waivers provisions of US law, i.e. Section 351.218(d)(2)(iii)
of the Regulations, violate Articles 6.1 and 6.2 of the Agreement because by precluding the USDOC

41 See, for example, Second Written Submission of th e United States, para. 21; Response of the United
States to Question 2 from the Panel Following the First Meeting.
In this context, we note that, as the United States asserts, both the SAA and the SPB clearly provide
that the USDOC will make its sunset determinations on an order-wide basis. The SAA (Exhibit US-11 at 879);
the SPB (Exhibit ARG-35 at 18872). We also note the Appellate Body's ruling in US – Corrosion-Resistant
Steel Sunset Review that sunset determinations can be made on an order-wide basis. Appellate Body Report, US
– Corrosion-Resistant Steel Sunset Review, supra, note 30, para. 155.
42 In this respect, the United States stated:
The United States has not argued that a waiver “does not affect” the final order-wide
likelihood determination. While the individual affirmative likelihood determinations may
affect the order-wide likelihood determination, they do not determine, in and of themselves,
the ultimate outcome of the order-wide analysis. Commerce considers all the information on
the administrative record, including prior agency determinations and the information
submitted by the interested parties or collected by Commerce, as well as any individual
affirmative likelihood determinations, when making the order-wide likelihood determination.
Response of the United States to Question 4(b) from the Panel Following the Second Meeting.
43 Response of the United States to Question 4(a) from the Panel Following the Second Meeting.

from making the required likelihood determinatio n under Article 11.3, these provisions deprive
interested parties of their right to submit evidence and to defend thei r interests, inconsistently with
Articles 6.1 and 6.2, respectively.
7.105 The United States asserts that no provision of US law prevents interested parties from
submitting evidence to the investigating authority and from defending their interests in sunset reviews
in conformity with Articles 6.1 and 6.2 of the Agreement.
7.106 We note that in the context of the present claim regarding US law, Argentina does not
challenge affirmative waivers provisions and limits its claim to the deemed waivers provisions. We
shall, therefore, base our analysis exclusively on the deemed waivers provisions.
Applicability of Articles 6.1 and 6.2 to Sunset Reviews

7.107 We note that Argentina's claim here is based on the assumption that Articles 6.1 and 6.2 of the
Agreement apply to sunset reviews. According to Argentina, these provisions apply to sunset reviews
by virtue of the cross-reference in Article 11.4. The United States contends that this cross-reference
incorporates into sunset reviews only those provis ions of Article 6 that deal with evidence and
procedure, but does not specifically dispute that Articles 6.1 and 6.2 fall within this category.44
7.108 The first issue before us is, therefore, whether the provisions of Articles 6.1 and 6.2 apply to
sunset reviews.
7.109 Article 11.4 of the Anti-Dumping Agreement reads:
The provisions of Article 6 rega rding evidence and procedure shall apply to any
review carried out under this Article. Any such review shall be carried out
expeditiously and shall normally be concluded within 12 months of the date of
initiation of the review. (emphasis added)
7.110 We note that the cross-reference in Article 11.4 of the Agreement makes the provisions of
Article 6 regarding evidence and procedure applicable to sunset reviews. We also note, however, that
the cross-reference in Article 11.4 to Article 6 is qualified by the language "regarding evidence and
procedure". Considering that the drafters often did not qualify the cross-refere nces in other parts of
the Agreement, we have to address the significance of this language with regard to the applicability in
sunset reviews of paragraphs 1 and 2 of Article 6 cited by Argentina.
7.111 In our view, two possible approaches can be ta ken regarding the meaning and effect of this
qualifying language in Article 11.4: First, it can be argued that on its face this language suggests that
there may be provisions in Article 6 that deal w ith matters other than "evidence and procedure".
Otherwise, the drafters would not have inserted th is qualifying language in Article 11.4. Therefore,
when faced with the question of whether certain individual paragraphs/provisions of Article 6 apply to
sunset reviews, the treaty interpreter has to analys e the provision at issue with the qualifying language
in Article 11.4 in mind to decide whether or not that provision deals with "evidence and procedure".
The second approach could be that this language in Article 11.4 does not qualify the cross-reference
to Article 6; it simply reiterates the fact that Ar ticle 6 contains rules that deal with "evidence and
procedure". This is evidenced in the title of Article 6, which reads "Evidence".
7.112 In our view, Articles 6.1 and 6.2 deal with "e vidence and procedure". Article 6.1 of the
Agreement sets out rules regarding interested part ies' right to be given notice of the information
required by the investigating authority and an ample opportunity to submit evidence to the
investigating authority. Article 6.2 provides that inte rested parties shall be given a full opportunity to

44 Response of the United States to Question 10(a) from the Panel Following the First Meeting.

defend their interests. Therefore, no matter which one of the above-cited tw o approaches is followed
regarding the meaning of the qualifying language in Article 11.4, we consider that Articles 6.1 and 6.2
apply to sunset reviews.
Nature of obligations under Articles 6.1 and 6.2 of the Agreement
7.113 Having concluded that the provisions of Articles 6.1 and 6.2 of the Agreement apply to sunset
reviews, we now turn to the provisions of these two articles.
7.114 Article 6.1 provides, in relevant part that:
All interested parties in an anti-dumping investigation shall be given notice of the
information which the authorities require and ample opportunity to present in writing
all evidence which they consider relevant in respect of the investigation in question.
7.115 We note that Article 6.1 stipulates generally that an investigating authority in a sunset review
must give notice of the information that it requires from interested parties and allow interested parties
ample opportunity to present in writing all evidence that the interested parties themselves deem
relevant to the defence of their position in that su nset review. In its subparagraphs, Article 6.1 sets
forth more specific procedural rights relating, inter alia, to questionnaires.
7.116 Article 6.2 provides:
Throughout the anti-dumping investigation all interested parties shall have a full
opportunity for the defence of their interests. To this end, the authorities shall, on
request, provide opportunities for all intere sted parties to meet those parties with
adverse interests, so that opposing view s may be presented and rebuttal arguments
offered. Provision of such opportunities mu st take account of the need to preserve
confidentiality and of the convenience to th e parties. There shall be no obligation on
any party to attend a meeting, and failure to do so shall not be prejudicial to that
party's case. Interested parties shall also have the right, on justification, to present
other information orally.
7.117 Article 6.2 generally deals with th e right of interested parties to defend their interests in an
investigation and, by operation of Article 11.4, in a sunset review. More specifically, it provides that
the investigating authority must provide, on request , interested parties an opportunity to meet other
interested parties in the proceeding to hear their views and to make their own views known to them.
In other words, Article 6.2 grants interested parties a right to participate in a hearing or otherwise to
confront those parties with adve rse interests. Further, it gives interested parties the right, on
justification, to present other information orally.
Examination of the consistency of the deemed waivers provisions
7.118 Turning to the provisions of US law challenged by Argentina, i.e. those dealing with deemed
waivers, we recall that the provision of US law that creates the deemed waiver category is
Section 351.218(d)(2)(iii) of the USDOC's Regulations . This section considers exporters submitting
incomplete responses to the notice of initiation of a sunset review and those that submit no response at
all to have waived their right to participate in a sunset review. The consequence of having been
deemed to waive the right to participate in a sunset review is the same as in the case of an affirmative
waiver: an affirmative finding of likelihood of continuation or recurrence of dumping by the USDOC,
as mandated by Section 751(c)(4)(B) of the Tariff Act. In this respect, the Statute does not distinguish
between affirmative and deemed waivers.

7.119 In order to evaluate whether the provisions of US law regarding deemed waivers fall foul of
Articles 6.1 and 6.2, we must first examine the pr ecise implications of a deemed waiver on an
exporter's ability to participate in a sunset revi ew. We shall then analyse separately two factual
situations that lead to a deemed waiver, i.e. failu re to submit a complete response to the notice of
initiation and failure to respond at all.
7.120 We recall that Section 751(c)(4)(B) of the Ta riff Act requires the USDOC to make an
affirmative finding of likelihood with respect to th e exporter that has elected to waive its right to
participate. Section 351.218(d)(2)(iii) of the USDOC' s Regulations provides that an exporter that has
not filed a complete substantive resp onse to the notice of initiation of a sunset review is deemed to
have waived its right to participate. As a result, that exporter will also be subject to an affirmative
finding of likelihood by the USDOC.
7.121 We note that in a deemed waiver situation, US law does not allow the USDOC to take into
account evidence submitted by an exporter in its incomplete submission when making its likelihood
determination in respect of that exporter.
45 Further, it is clear that an exporter who has submitted an
incomplete response is precluded from presenting any further evidence to the USDOC (and in any
event, the USDOC would be precluded from taking it into account when making its likelihood
determination with respect to that exporter). It is also clear that the exporter would not be permitted
to participate in hearings or other proced ures to confront other interested parties.
46 In fact, these
conclusions flow naturally from the fact that the ex porter is deemed to have waived participation in
the review, and are not disputed by the United States.
7.122 The first situation that may lead to a deemed wa iver is the submission by an exporter of an
incomplete response to the notice of initiation. We recall that under US law, an exporter that is
deemed to have waived its right to participate by submitting an incomplete response can not submit
further evidence to the USDOC. Further, we also recall that the USDOC is required to reach an
affirmative likelihood determination with respect to this exporter without considering evidence
submitted in the exporter's incomplete response. It fo llows that the exporter is deprived of its right to
submit evidence to the USDOC. This obviously runs foul of Article 6.1 of the Agreement, which
requires that interested parties be given an am ple opportunity to submit information to the
investigating authority. We see no provision in the Agreement that allows such denial of the
procedural rights provided for in Article 6.1 on the grounds that the exporter made an incomplete
submission to the notice of initiation.
7.123 We also find US law to be inconsistent with Ar ticle 6.2 of the Agreement in that it denies an
exporter that is deemed to have waived its right to participate in a sunset review by submitting an
incomplete response to the notice of initiation of a sunset review the right to participate in a hearing or
otherwise to confront thos e parties with adverse interests. We find no justification in the Agreement
that would allow such a departure from the provisions of Article 6.2 on the grounds that that exporter
has submitted an incomplete response to the notice of initiation.
7.124 The United States argues that the information contained in an incomplete submission of an
exporter which is deemed to have waived its ri ght to participate is nevertheless taken into

45 Section 751(c)(4)(B) of the Tariff Act, codified in 19 U.S.C. § 1675(c)(4)(B) (Exhibit ARG-1 at
1152).
46 In this respect, we note the following statement of the United States:
If an exporter in fact submitted an incomplete substantive response – a hypothetical situation –
that exporter would be deemed to have waived its right to participate in the sunset review,
pursuant to Section 351.218(d)(2)(iii). Therefore, the exporter would not have the right to
submit additional evidence or request a hearing.
Response of the United States to Question 2(e) from the Panel to the United States Following the First
Meeting. We note that the United States made a similar statement in its second written submission. See,
Second Written Submission of the Unites States, para. 25.

consideration by the USDOC in its order-wide analysis for the country as a whole.47 According to the
United States, therefore, deemed waivers provisio ns of US law are not inconsistent with the
provisions of Article 6.1 of the Agreement.
7.125 In our view, to the extent that the order-wide determination of likelihood is based in whole or
in part upon a company-specific determination that was established inconsistently with Articles 6.1
and 6.2 of the Agreement, we do not see how the order-wide determination can be interpreted as being
consistent with these two provisions. We consider that the violations of Articles 6.1 and 6.2 at the
company-specific level would necessarily taint the USDOC's order-wide determination. Assuming
arguendo that the USDOC does evaluate this informati on in its order-wide analysis consistently with
the requirements of Articles 6.1 and 6.2, that ca n not cure the inconsistency stemming from the
USDOC's failure to consider that information in the company-specific determination relating to the
exporter submitting the information.
7.126 Further, the United States has not clarified to us in what ways and for what purpose
information submitted by an exporter that is not being used in the company-specific determination
conducted for that particular ex porter can be used in the order-w ide sunset determination for the
country subject to the sunset review. For instance, in a sunset review where all exporters either failed
to respond at all or submitted incomplete responses, the USDOC would have to make an affirmative
likelihood determination with respect to all exporters by virtue of Section 751(c)(4)(B) of the Tariff
Act, without taking into account the informa tion contained in these exporters' incomplete
submissions. Yet, according to the US argument, the USDOC would conduct another order-wide
analysis for the country as a whole in which it would consider the information contained in the
incomplete submissions of these exporters. We do not understand how usefully this information
could be considered for the country as a whole, given that it would not be used with respect to the
individual exporter submitting it. As we stated above ( supra, para. 7.102), there has never been a
sunset review in which the USDOC found no like lihood in the order-wide analysis where it had
already found likelihood for some exporters under the waiver provisions. This supports our view that
the US explanation regarding the consideration of the evidence submitted in the incomplete responses
of some exporters does not reflect the US practice and is far from convincing.
7.127 The second situation that can lead to a deemed waiver is an exporter's failure to respond,
within the specified time period, to a notice of initiation. Under US law, exporters that do not submit
a timely substantive response to the notice of initiation of a sunset review are precluded from
submitting any further evidence to the USDOC and from requesting, or particip ating in, hearings. In
our view, the fact that an exporter failed to submit a substantive response to the notice of initiation at
the outset of a sunset review can not justify depriv ing that exporter of its procedural rights under
Articles 6.1 and 6.2 of the Agreement for the rest of the sunset review. We recognize that in many
such cases the USDOC will be entitled to resort to facts available under Article 6.8 and Annex II of
the Agreement, which, in turn, may lead to an un favourable determination w ith respect to such an
exporter. In that regard, the USDOC may decline, on a case-by-case basis, to take into consideration
evidence submitted by that exporter if the submission is not made within a reasonable time.
48 Article
6.8 and Annex II do not, however, allow the USDOC to disregard all evidence submitted by an
exporter in the period following the deadline for the submission of a substantive response to the notice
of initiation on the ground that the exporter failed to make such a submission in the first place. The
USDOC can only disregard information submitted by an exporter on the grounds, and by following
the procedure, provided for in Article 6.8 and Annex II. It follows that the deemed waivers provisions
of US law violate Articles 6.1 and 6.2 of the Agreement in this second factual situation too.

47 Response of the United States to Questions 2(e) and 7(b) from the Panel Following the First
Meeting; Second Written Submission of the United States, para. 24.
48 We find support for this proposition in the Appellate Body Report in US – Hot-Rolled Steel . See,
Appellate Body Report, US – Hot-Rolled Steel, supra, note 9, paras. 80-82.

Conclusion

7.128 In conclusion, we find Section 351.218(d)(2)( iii) of the USDOC's Regulations relating to
deemed waivers to be inconsistent with Articles 6.1 and 6.2 of the Agreement.49
2. Alleged Irrefutable Presumption of Likelihood Under US Law/Practice
(a) Arguments of parties
(i) Argentina
7.129 Argentina asserts that US law as such is incons istent with Article 11.3 because it contains an
irrefutable presumption of likelihood of continua tion or recurrence of dumping in sunset reviews
where certain factual scenarios are met. According to Argentina, US law in this respect consists of
Sections 751(c) and 752(c) of the Tariff Act of 1930, the provisions of the SAA relating to sunset
reviews, and Section II.A.3 of the SPB. Argentina considers that the statutory provisions cannot be
analysed in isolation from the SAA and the SPB. Argentina points out that the SAA and the SPB
provide the USDOC with a simple checklist as the basis for the latter's decision as to whether there is
a likelihood of continuation or recurrence of dumping. The SPB contains three basic factual scenarios
that would support a finding of likelihood of cont inuation or recurrence of dumping in a sunset
review. Therefore, rather than carrying out a pros pective analysis as required under Article 11.3 of
the Agreement, the USDOC simply checks whether one of these three scenarios is present, and if so,
concludes that there is a likelihood of continuation or recurrence of dumping should the measure be
lifted. Argentina argues that USDOC has a consistent practi ce which demonstrates that the USDOC
attributes a decisive relevance to the factual scenarios set out in the SPB.
7.130 Independently from its challe nge to US law, Argentina also argues that the USDOC's
consistent practice as such is inconsistent with Ar ticle 11.3 of the Agreement because it embodies the
WTO-inconsistent irrefutable presumption regarding the likelihood of continua tion or recurrence of
dumping determinations in sunset reviews. For instance, according to Argentina, in all sunset reviews
in which a domestic interested party participat ed the USDOC found likelihood of continuation or
recurrence of dumping. According to Argentina, "practice that prescribe[s] a standard can be subject
to WTO challenge."
50 Therefore, this practice is also susceptible to a WTO challenge.
7.131 If the Panel rejects Argentina's claim regarding the alleged irrefutable presumption under US
law/practice, Argentina requires the Panel to find that the United States failed to administer its sunset
review laws and regulations in a manner consistent with Article X:3(a) of the GATT 1994.
(ii) United States
7.132 The United States asserts that neither the SPB nor the SAA contains an irrefutable
presumption regarding the likelihood of continuation or recurrence of dumping determinations in
sunset reviews.
51 Even if they did, the United States contends that these two instruments do not

49 We note that Argentina also argues that violations of Articles 6.1 and 6.2 lead to consequential
violations of Articles 11.3 and 11.4 of the Agreement. Given that these are purely consequential claims, we
exercise judicial economy and do not rule on them.
50 First Written Submission of Argentina, para. 139.
51 Regarding Argentina's challenge against the Tariff Act in the context of this claim, the United States
pointed out that:
[Argentina] does not allege that any US statutory provision establishes the presumption, nor
could it, because there is no such provision. Instead, it turns to three items: the SAA, the
Sunset Policy Bulletin, and supposed Commerce “practice.”
First Written Submission of the United States, para. 174.

constitute "measures" for purposes of WTO dispute settlement proceedings, nor are they binding legal
instruments under US law. They therefore can not be challenged in the WTO. Similarly, the United
States submits that the USDOC's practice concerni ng sunset reviews cannot be challenged under
WTO law because practice as such is not a measure.
(b) Arguments of third parties
(i) Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu
7.133 Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu submits that the SAA and
the SPB are not binding legal instruments under US law. Therefore, there does not seem to be an
irrefutable presumption of likelihood of continua tion or recurrence of dumping under US law.
Separate Customs Territory of Ta iwan, Penghu, Kinmen and Matsu contends that no conclusive
inference can be drawn from the USDOC's practice in sunset reviews.
(c) Evaluation by the Panel
(i) Status of the Sunset Policy Bulletin
7.134 Argentina submits that US law is inconsistent with Article 11.3 of the Agreement in that it
contains an irrefutable presumption regarding the likelihood of continuation or recurrence of dumping
determinations in sunset reviews. In this respect, Argentina c onsiders that US law consists of
Sections 751(c) and 752(c) of the Tariff Act of 1930, the provisions of the SAA relating to sunset
reviews, and Section II.A.3 of the SPB. In Argent ina's view, to discern the meaning and operation of
US law regarding this alleged presumption, the re levant provisions of these three legal instruments
should be read and analysed in conjunction with one another.
7.135 As an initial matter, the United States submits that the SPB does 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. The United States further argues that even if the Panel
considers the SPB as a measure, it does not mandate WTO-inconsistent action because it is not a
mandatory measure. We understand the United States to argue that the SPB can not possibly violate a
WTO obligation because it is either not a measure at all, or because in any event it is not a mandatory
measure.
7.136 Turning first to the US argument that the SPB is not a measure of the type that may be subject
to dispute settlement challenge, we note that the Appellate Body in US – Corrosion-Resistant Steel
Sunset Review has made it clear that the concept of a "measure" that can be subject to a WTO
challenge is very broad. According to the Appella te Body, "any act or omission attributable to a
WTO Member can be a measure of that Member fo r purposes of dispute settlement proceedings"
52
(footnote omitted). The Appellate Body further stated that any legal instrument under a WTO
Member's law could also be challenged as a measur e before a WTO panel irrespective of the way in
which it operates in individual cases. 53 Given that the Appellate Body in US – Corrosion-Resistant
Steel Sunset Review was addressing precisely the issue of the SPB, there can be no doubt that the
Appellate Body considers the SPB to be a measure that can be subject to WTO dispute settlement, and
we will proceed accordingly.
7.137 We next turn to the US contention that the SPB in any event cannot be found to be
inconsistent with the WTO Agreement because it is not a mandatory measure. In advancing this
argument, the United States is relying upon a series of GATT and WTO dispute settlement panels that
have found that only those provisions of a Member's law that mandate GATT/WTO-inconsistent

52 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, supra, note 30, para. 81.
53 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, supra, note 30, para. 82.

action or preclude GATT/WTO-consistent action can be found to be GATT/WTO-inconsistent.
54
Under this approach, if the challenged provision pr ovides the executive branch with discretion, rather
than requiring it to follow a certain course of action, then that provision can not be found to be
inconsistent as such.55 Similarly, if the challenged provision does not have legal force, it could not be
found to require WTO-inconsistent action. Of course, the application of that provision could
nevertheless be found to be inconsistent if the di scretion inherent in the provision is exercised in a
WTO-inconsistent manner.
7.138 We note that the Appellate Body has so far no t pronounced its views about the status of the
mandatory/discretionary test that has been applie d by WTO panels. To the contrary, the Appellate
Body has to date made clear, even in cases where th e mandatory/discretionary test was at issue, that it
was not ruling on the validity of the test. 56 It has, however, reviewed the "application" of that test by
WTO panels. In its decision in US – Corrosion-Resistant Steel Sunset Review , the Appellate Body
disagreed with the panel's finding that "the Sunset Policy Bulletin is not a mandatory legal instrument
obligating a certain course of conduct and thus can not, in and of itself, give rise to a WTO
violation".57 In this context, although the Appellate Bo dy did not consider that the appeal in that
dispute required it to "undertake a comprehensiv e examination" of the mandatory/discretionary

54 The reason mandatory legislation mandating GATT-inconsistent behaviour must be challengeable
was first explained by the GATT panel in US – Superfund . See, Panel Report, United States – Taxes on
Petroleum and Certain Imported Substances (" US – Superfund "), adopted 17 June 1987, BISD 34S/136,
para. 5.2.2. The mandatory/discretionary distinction continued to be applied by other GATT and WTO panels.
Regarding the application of this distinction by other GATT panels, see, Panel Report, European
Economic Community – Regulation on Imports of Parts and Components ("EEC – Parts and Components "),
adopted 16 May 1990, BISD 37S/132, pp. 198-199; Panel Report, Thailand – Restrictions on Importation of and
Internal Taxes on Cigarettes ("Thailand – Cigarettes "), adopted 7 November 1990, BISD 37S/200, pp. 227-228;
Panel Report, United States – Measures Affecting Alcoholic and Malt Beverages (" US – Malt Beverages "),
adopted 19 June 1992, BISD 39S/206, pp. 281-282 and 289-290; Panel Report, United States – Denial of Most-
Favoured Nation Treatment as to Non-Rubber Footwear from Brazil , adopted 19 June 1992, BISD 39S/128,
p. 152.
Regarding the application of this test by WTO panels, see, for instance, Panel Report, United States –
Measures Treating Exports Restraints as Subsidies ("US – Export Restraints"), WT/DS194/R and Corr. 2,
adopted 23 August 2001, para. 8.131; Panel Report, United States – Anti-Dumping Act of 1916, Complaint by
Japan ("US – 1916 Act (Japan) "), WT/DS162/R and Add.1, adopted 26 September 2000, as upheld by the
Appellate Body Report, WT/DS136/AB/R, WT/DS162/AB/ R, DSR 2000:X, 4831, para. 6.192; Panel Report,
United States – Section 129(c)(1) of the Uruguay Round Agreements Act ("US – Section 129(c)(1) URAA "),
55 See, for example, Panel Report, US – Export Restraints, supra, note 54, para. 8.131.
56 In this regard, footnote 94 of the Appellate Body report in US – Corrosion-Resistant Steel Sunset
Review provides:
In our Report in US – 1916 Act , we examined the challenged legislation and found that the
alleged "discretionary" elements of that legislation were not of a type that , even under the
mandatory/discretionary distinction , would have led to the measure being classified as
"discretionary" and therefore consistent with the Anti-Dumping Agreement. In other words,
we assumed that the distinction could be applied because it did not, in any event, affect the
outcome of our analysis. We specifically indicated that it was not necessary, in that appeal,
for us to answer "the question of the continuing relevance of the distinction between
mandatory and discretionary legislation for claims brought under the Anti-Dumping
Agreement". (Appellate Body Report, US – 1916 Act , para. 99). We also expressly declined
to answer this question in footnote 334 to paragraph 159 of our Report in US – Countervailing
Measures on Certain EC Products . Furthermore, the appeal in US – Section 211
Appropriations Act
 presented a unique set of circumstances. In that case, in defending the
measure challenged by the European Communities, the United States unsuccessfully argued
that discretionary regulations, issued under a separate law, cured the discriminatory aspects of
the measure at issue.
Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, supra, note 30, para. 93.
57 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, supra, note 30, para. 100.

distinction, it observed that the import of the di stinction could vary from case to case, and cautioned
against the application of the distinction in a "mechanistic fashion".58
7.139 Having reversed the finding of the panel in US – Corrosion-Resistant Steel Sunset Review, the
Appellate Body, in Section VI.E of its report, cons idered whether it could itself complete the analysis
and rule on the claim in question, which was essentially the same claim now being pursued by
Argentina.59 It explained that a panel's analysis regarding a claim aimed at a WTO Member's law as
such must start with the text of the challenged measure. If the text alone fails to clarify the issue, then
the panel can look to other evidence. In this contex t, the Appellate Body recalled its earlier finding in
US-Carbon Steel that in such cases evidence about the consistent application of the challenged
measure can be taken into account by panels. 60 The Appellate Body discussed in some detail the
issues it would have to resolve and the factual findin gs by the panel that would be required in order
for it to rule on the claim in question. The Appella te Body concluded that the panel had not examined
the nature and meaning of the relevant section of the SPB, nor had it considered evidence submitted
by the complainant seeking to establish the consistent application of that section. The Appellate Body
concluded that it was unable to rule on that claim because of the absence of relevant factual findings
by the panel.
61
7.140 We note that the Appellate Body's findings and its underlying reasoning appear to represent a
significant shift from the mandatory/discretionary distinction previously applied by a number of
GATT/WTO panels. The Appellate Body did not, however, clearly state whether this decision meant
that the mandatory/discretionary test has from now on to be applied in a different manner. We are
therefore left with a certain degree of uncertainty regarding the content and the applicability of this
test in WTO dispute settlement proceedings. It is , however, clear to us from Section VI.E of the
Appellate Body's Report that we must analyse the substance of Argentina's claim on the basis of the
provisions of the SPB cited by Argentina. It is only as part of our substantive analysis of the SPB that
we may decide whether it mandates WTO-inconsistent behaviour or precludes WTO-consistent
behaviour. We shall refrain from applying the mandatory/discretionary test in the abstract to
determine whether the SPB can give rise to a WTO violation or not. In the words of the Appellate
Body, this would amount to applying the mentioned test in a "mechanistic fashion" and would not be
acceptable.
62
(ii) Standard regarding presumptions
7.141 Regarding the WTO-consistency of a legal instru ment that contains presumptions concerning
likelihood determinations in sunset reviews, the Appellate Body in US – Corrosion-Resistant Steel
Sunset Review pointed out that:
[A] firm evidentiary foundati on is required 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.63 (emphasis added)

58 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, supra, note 30, para. 93.
59 The complainant argued that Section II.A.3 of the SPB was inconsistent with Article 11.3 "because it
requires USDOC to make an affirmative likelihood determination in every case in which one of three scenarios
exists". Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , supra, note 30, para. 164.
Unlike the complainant in that case, however, Argentina does not challenge the consistency of the "good cause"
requirements of US law with respect to the submission of other evidence to the USDOC in these proceedings.
60 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, supra, note 30, para. 168.
61 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, supra, note 30, para. 190.
62 Supra, note 58.
63 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, supra, note 30, para. 178.

As we have found in other situations, the use of presumptions may be inconsistent

with an obligation to make a particular determination in each case using positive
evidence. Provisions that create "irrebuttable" presumptions, or "predetermine" a
particular result, run the risk of being found inconsistent with this type of
obligation.64 (footnote omitted, emphasis added)
7.142 The Appellate Body then went on and opined that legal provisions that give a determinative,
rather than probative, value to certain factors w ould be inconsistent with Article 11.3 of the
Agreement.65 In this regard, the Appellate Body stated:
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.66 (emphasis added)
7.143 The Appellate Body has made it clear that Article 11.3 requires that a likelihood
determination in a sunset review be based on a suffic ient factual basis, taking into consideration the
circumstances of the case at issue. It can not be based on presumptions that contain pre-determined
conclusions for certain factual scenarios. In other words, a scheme that attributes a
determinative/conclusive value to certain factors in sunset determinations is likely to violate
Article 11.3.
7.144 With these considerations in mind, we will analyse the provisions of US law cited by
Argentina to decide whether they, either individually or in conjunction with one another, give rise to
the presumption alleged by Argentina. We shall commence our analysis with the legal provisions
cited by Argentina. If the text of the legal provisi ons cited by Argentina does not allow us to reach a
conclusion, then we shall also evaluate eviden ce that Argentina submitted regarding the alleged
consistent application by the USDOC of these provisions of US law.
(iii) Examination of the Measures Cited by Argentina
7.145 Argentina generally argues that the alleged irre futable presumption under US law consists of
the provisions of the Tariff Act, the SAA and the SPB. As far as the Tariff Act is concerned,
Argentina cited Sections 751(c) and 752(c) in its first wr itten submission whereas it only cited 752(c)
in its second submission. We note that although Ar gentina argues that the Panel should analyse these
three legal instruments in conjunction with one another in deciding whether this irrefutable
presumption exists under US law, it mainly focuses on the provisions of the SAA and the SPB in
developing its arguments. 67 We nevertheless commence our analysis with the relevant provisions of
the Tariff Act and then analyse the SAA and the SPB. In doing so, we shall evaluate the relevant
provisions of these three measures individually and in conjunction with one another in deciding
whether the alleged presumption exists.
The Statute and the Statement of Administrative Action
7.146 The provisions of the Tariff Act that are re levant to the present claim are found in
Section 752(c), which provides in relevant parts:

64 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, supra, note 30, para. 191.
65 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, supra, note 30, para. 178.
66 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, supra, note 30, para. 178.
67 In fact, in the "Conclusion" section of its first written submission, Argentina submits that the Panel
should find the SAA and Section II.A.3 of the SPB are inconsistent with Article 11.3 of the Agreement with
respect to the alleged irrefutable presumption. Argentina has not requested that a particular provision of the
Tariff Act be found to be WTO-inconsistent in this regard.

(c) Determination of likelihood of continuation or recurrence of dumping
(1) In general
In a review conducted under section 1675(c) of this title, the administering authority
shall determine whether revocation of an antidumping duty order or termination of a
suspended investigation under section 1673c of this title would be likely to lead to
continuation or recurrence of sales of the s ubject merchandise at less than fair value.
The administering authority 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 antidumping duty order or acceptance
of the suspension agreement.
(2) Consideration of other factors
If good cause is shown, the administering authority shall also consider
 such other
price, cost, market, or economic factors as it deems relevant.68 (emphasis added)
7.147 We note that the Statute provides that in determining whether dumping is likely to continue or
recur in the case of revocation of the order, the USDOC has to consider two factors: "historical
dumping margins" and "import volumes". The Statute also states that, where good cause is shown,
the USDOC may – and in fact "shall" – consider ot her factors. Although these provisions seem to
limit the factual basis of the USDOC's likelihood de terminations, in the sense that they require a
showing of good cause in order for other information to be considered, in our view they fall short of
attaching a conclusive value to these two factors. 69 The Statute does not stipulate that the USDOC is
required to limit the factual scope of its analysis to these two factors in all cases. To the contrary, it
specifically states that if good cause is shown factors other than dumping margins and import volumes
shall also be considered by the USDOC.
7.148 We note that the premise of Argentina's claim is that US law contains certain scenarios, the
satisfaction of which would lead to an affi rmative likelihood determ ination by the USDOC per se .
The three scenarios that Argentina cites are found in Section II.A.3 of the SPB, as we discuss below
(infra, paras. 7.152-7.154). We also note that these scenarios are premised on the same two factors
that are mentioned in Section 752(c) of the Tari ff Act of 1930, i.e. "import volumes" and "dumping
margins". However, it is important to note that th e manner in which these two factors are being used
in the SPB's factual scenarios diffe rs from the way Section 752(c) of the Tariff Act of 1930 treats
them. The Statute directs the USDOC to evaluate th ese two factors in each sunset review. On its
face, however, it does not require the USDOC to attach a decisive weight to them with respect to the
likelihood determination. In fact, apart from the fact that it requires the USDOC to consider these two
factors in its likelihood determinations, the Statute does not mention any factual scenario in which
these two factors would play a certain role such that it would ultimately lead to an affirmative
likelihood determination. In our view, therefore, the Statute on its face not only does not support
Argentina's allegations regarding an irrefutable presumption of likelihood, but to the contrary seems
to indicate that no such irrefutable presumption exists.

68 19 U.S.C. § 1675a(c) (Exhibit ARG-1 at 1157).
69 We do not understand Argentina to challenge the "good cause" provision of the Statute per se. We
therefore do not discuss the implications of these provisions in the context of Argentina's claim.

7.149 We note that, under US law, the SAA provides an authoritative interpretation of the Statute.
70
Therefore, in order to interpret the above statutor y provisions we shall take into consideration the
following relevant provisions of the SAA:
(3) Likelihood of Dumping
Section 221 of the bill adds section 752(c) which establishes standards for
determining the likelihood of continuation or recurrence of dumping. Under
section 752(c)(1), Commerce will examine the relationship between dumping
margins, or the absence of margins, and the volume of imports of the subject
merchandise, comparing the periods before an d 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 indicate that the exporter needs to dump to
sell at pre-order volumes. In contrast, 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 existenc e 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 U.S. market, they would have to resume dumping.
New section 752(c)(2) provides that, for good cause shown , Commerce also will
consider other information regarding, price, cost, market or economic factors it deems
relevant. Such factors might include the ma rket share of foreign producers subject to
the antidumping proceeding; changes in exch ange rates, inventory levels, production
capacity, and capacity utilisation; any hist ory of sales below cost of production;
changes in manufacturing technology of the industry; and prevailing prices in
relevant markets. In practice, this w ill 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 Administration intends that Commerce will analyze
such information on a case-by-case basis.71 (emphasis added)
7.150 We note that the SAA also provides that certain patterns in dumping margins and import
volumes following the imposition of the measure are "highly probative" or provide a "strong
indication" of the likelihood of co ntinuation or recurrence of dumpin g in the event of revocation of
the order. This language suggests that these fact ors are important but not necessarily determinative.
Further, the SAA also makes it clear that other factors can also be considered by the USDOC if good
cause is shown by the exporters involved in the sunset review as to why that other factor is relevant to
the USDOC's likelihood determination. The SAA ev en provides an illustrati ve list of such other
factors, which includes changes in exchange rates, inventory levels and production capacity. The
SAA specifically states that this will permit intere sted parties to provide information indicating that
observed patterns regarding dumping margins and impo rt volumes "are not nece ssarily indicative" of
likelihood, and indicates that the USDOC "will anal yze such information on a case-by-case basis".

70 The SAA (Exhibit ARG-5 at 4040).
71 The SAA (Exhibit ARG-5 at 4213-4214).

Thus, not only does the SAA contain nothing that would cause us to disregard the plain meaning of
the Statute, but to the contrary the SAA confirms th at the Statute does not provide for the irrefutable
presumption alleged by Argentina. It follows th at our analysis concerning the Statute (read in
conjunction with the SAA) ends on the basis of its text. We therefore do not need to go further to
evaluate other factors, such as the alleged consistent application of the Statute, in order to complete
our analysis regarding the Statute.
Conclusion
7.151 The Tariff Act of 1930, interpreted in light of the SAA, does not contain an irrefutable
presumption of likelihood for purposes of USDOC's sunset determinations.
The Sunset Policy Bulletin

Relevant provisions of the Sunset Policy Bulletin
7.152 Finally, we note the following provisions of the SPB:
II Sunset Reviews in Antidumping Proceedings
A. Determination of Likelihood of Continuation or Recurrence of Dumping

3. Likelihood of Continuation or Recurrence of Dumping
…
[T]he Department normally will determine
 that revocation of an antidumping order or
termination of a suspended dumping investiga tion is likely to lead to continuation or
recurrence of dumping where—
(a) dumping continued at any level above de minimis after the issuance of the
order or the suspension agreement, as applicable;
(b) imports of the subject merchandise cea sed after issuance of the order or the
suspension agreement, as applicable; or
(c) dumping was eliminated after the issuance of the order or the suspension
agreement, as applicable, and import volum es 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 arguments under paragraph II.C in a sunset
review of a suspended investigation.
4. No Likelihood of Continuation or Recurrence of Dumping
…
[T]he Department normally will determine that revocation of an antidumping order or
termination of a suspended dumping investigation is not likely to lead to continuation

or recurrence of dumping where dumping wa s eliminated after issuance of the order
or the suspension agreement, as applicab le, and import volumes remained steady or
increased. Declining margins alone no rmally would not qualify because the
legislative history makes clear that conti nued 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 Depart ment normally will consider companies'
relative market share. Such information should be provided to the Department by the
parties.
The Department recognizes that, in the context of a sunset review of a suspended
investigation, the elimination of dumping coupled with steady or increasing import
volumes may not be conclusive with re spect to no likelihood. Therefore, the
Department may be more likely to entert ain good cause arguments under paragraph
II.C in a sunset review of a suspended investigation.

C. Consideration of Other Factors
Section 752(c)(2) of the Act provides that, if the Department determines that good
cause is shown, the Departme nt also will consider other price, cost, market or
economic factors in determining the likelihood of continuation or recurrence of
dumping. The SAA at 890, states that such other factors might include,
the market share of foreign 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 other factors in AD sunset reviews if the
Department determines that good cause to consider such other factors exists. The
burden is on an interested party to provide information or evidence that would
warrant consideration of the other factors in question. With respect to a sunset review
of a suspended investigation, where the Department determines that good cause
exists, the Department normally will conduct the sunset review consistent with its
practice of examining likelihood under section 751(a) of the Act.
72 (emphasis added)
7.153 We note that Section II.A.3 of the SPB prov ides that the USDOC will "normally" make an
affirmative likelihood determination in cases where one of three factual scenarios is present. These
factual scenarios are based on the same two factors that the Tariff Act, as interpreted by the SAA,
directs the USDOC to consider in each sunset revi ew, i.e. "dumping margins" and "import volumes".
We note, however, that these factors are being trea ted by the SPB in a manner that differs from the
framework within which the Tariff Act treats them. As we stated above, although Section 752(c) of
the Act requires that the USDOC consider these two factors in all sunset reviews, in no way does it
establish a presumption whereby the existence of thes e factors would lead to an affirmative likelihood
determination per se. The SPB, however, presents these two factors in three different factual settings,
which will "normally" lead to an affirmative finding of likelihood.

72 Sunset Policy Bulletin (Exhibit ARG-35 at 18872-18874).

7.154 Section II.A.3 of the SPB contains three scenarios. First is the existence of a dumping margin
above de minimis; the second one relates to the case where imports cease following the imposition of
the measure; and the third is where dumping disappears but import volumes decline following
imposition. On its face, Section II.A.3 seems to contain a presumption of likelihood in cases where
one of these factual scenarios is present.
7.155 According to the standard that we outlined above (supra, paras. 7.141-7.144), 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 si mply indicative. If we find that the SPB requires
the USDOC to treat them as conclusive it will follow that Section II.A.3 of the SPB is inconsistent
with Article 11.3 of the Agreement. Alternativel y, if these factors are not conclusive but simply
indicative we will find Section II.A.3 to be consistent with Article 11.3.
7.156 In this context, we note that the word "normally" in the chapeau of Section II.A.3 qualifies the
provisions of this section. It provides that in cases where one of these three factual scenarios is
present the USDOC will "normally " find likelihood. The existence of "normally" suggests that the
SPB envisions that there may be situations where likelihood may not be found even if one of these
three scenarios is present. The United States assert s that the use of "normally" is incompatible with
the notion of an irrefutable presumption.
73 However, we find no cl arification in the SPB which
supports the proposition that the word "normally" provides the USDOC with such discretion. To the
contrary, we note that Section II.A.3 indicates that in certain circumstances its provisions relating to
these three factual scenarios may not be conclusive. In this respect, Section II.A.3 provides:
The Department recognizes that, in the context of a sunset review of a suspended
investigation, the data relevant to the criteria unde r paragraphs (a) through (c), above,
[dumping margins and import volumes] may not be conclusive with respect to
likelihood.74 (emphasis added)
7.157 This portion of Section II.A.3 indicates that the provisions relating to the three factual
scenarios may not be conclusive in the context of the sunset reviews of a suspended investigation, and
arguably it is for this reason that the term "normally" was in Section II.A.3. This further suggests that
these scenarios may be conclusive in the context of the sunset reviews of final anti-dumping duties.
Yet, in our view, the SPB is not sufficiently clear as to whether the provisions of Section II.A.3
relating to the three factual scenarios are determinative for purposes of the USDOC's likelihood
determinations.
75 Given our finding above that neither the Tariff Act nor the SAA contains any
presumption regarding the USDOC likelihood determ inations, we have not found any provision in
these two measures that would clarify this point either.
Consistent application of the Sunset Policy Bulletin
7.158 Given that neither the SPB itself nor the Tariff Act or the SAA resolves the issue of whether
Section II.A.3 of the SPB envisions that dumping margins and import volumes should be treated as
conclusive in sunset reviews, we shall analyse evidence submitted by Argentina regarding the manner
in which the provisions of the mentioned section have so far been implemented by the USDOC. In
exhibits ARG-63 and ARG-64, Argentina submitted empirical evidence regarding the USDOC's
consistent application of Section II.A.3 of the SPB. ARG-63 covers the sunset reviews carried out by
the USDOC until September 2003, whereas ARG-64 covers the period Oct ober-December 2003.

73 First Written Submission of the United States, para. 178.
74 Sunset Policy Bulletin (Exhibit ARG-35 at 18872). A similar sentence is contained in
Section II.A.4 of the Sunset Policy Bulletin (Exhibit ARG-35 at 18872-18873).
75 We find support for this proposition in the Appellate Body decision in US – Corrosion-Resistant
Steel Sunset Review. See, Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , supra, note
30, para. 179.

Argentina asserts that these statistics demonstrat e that the USDOC has relied on one of the three
factual scenarios set out in Section II.A.3 of th e SPB in every sunset review in which it found
likelihood. The United States contends that these statistics fail to demonstrat e the alleged irrefutable
presumption. According to the United States, if at all, only statistics relating to the sunset reviews in
which the interested parties contested the existenc e of likelihood can provide guidance. The United
States argues that out of the 291 sunset reviews cited in ARG-63 only 35 were in this category. The
United States acknowledges that the USDOC found lik elihood in all of these 35 sunset reviews but
contends that that fact alone does not prove the i rrefutable presumption alleged by Argentina. More
specifically, the United States submits:
It may well be that in these 35 cases, the evidence presented a scenario that satisfied
one or more of the criteria that the Suns et Policy Bulletin identifies as indicia of
likelihood. If so, the respondent interested parties may have been unable to
demonstrate that the facts of their case called for a departure from the “normal”
conclusion. It could be the case that one or more, or maybe all, of these parties may
have been in the situation where they were not capable of competing in the US
market without dumping. We simply do not know.
76
7.159 Argentina disagrees with the US view that only sunset reviews in which interested parties
contested the existence of likelihood can be taken into account. Ac cording to Argentina, interested
parties' participation is immaterial regarding th e investigating authority's obligation to determine
likelihood under Article 11.3. Argen tina argues, however, that even accepting the US position in this
respect, the fact that the USDOC found likelihood in these 35 sunset reviews on the basis of the
factual scenarios of the SPB still proves Argentina's claim.
77
7.160 We asked the United States to explain its views as to whether the statistics provided by
Argentina in ARG-63 and ARG-64 were factually correct. The United States submitted the following
response:
The United States has not examined each and every sunset review cited by Argentina
in Exhibit ARG-63 and Exhibit ARG-64. To the extent that the United States has
addressed these exhibits in its written submissions, the United States has no reason to
believe that the overall total of sunset reviews conducted and the ultimate outcomes
in those sunset reviews as alleged by Argentina is significantly flawed .78 (emphasis
added)
7.161 In response to questioning from the Panel, the United States stated that these statistics were
irrelevant to the question of whether the USDOC perceived Section II.A.3 of the SPB as conclusive in
its sunset determinations. According to the United States, these statistics can at best indicate a
repeated pattern of similar responses to a set of ci rcumstances, which, according to the United States
and as found by a WTO panel, can not be challenged as such in WT O dispute settlement proceedings.
The United States also contends that the data submitted by Argentina focuses only on the results of
individual sunset reviews conducted by the USDOC an d ignores the particular circumstances of each
review.
79
7.162 Regarding the issue of whether the consistent application of a Member's law can be taken into
account by WTO panels in cases dealing with an alleged WTO-inconsistency of that law, we find
support in the following finding of the Appellate Body in US-Carbon Steel:

76 First Written Submission of the United States, para. 186.
77 Second Written Submission of Argentina, paras. 83-84.
78 Response of the United States to Question 14(a) from the Panel Following the Second Meeting.
79 Response of the United States to Question 14(b) from the Panel Following the Second Meeting.

Thus, a responding Member's law will be treated as WTO- consistent until proven
otherwise. The party asser ting that another party's mu nicipal law, as such, is
inconsistent with relevant treaty obligati ons bears the burden of introducing evidence
as to the scope and meaning of such law to substantiate that assertion. Such evidence
will typically be produced in the form of th e 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 ev idence required to satisfy the burden of proof will vary
from case to case.80 (footnote omitted, emphasis added)
This finding was also cited and confirmed by the Appellate Body in US – Corrosion-Resistant Steel
Sunset Review.81
7.163 Therefore, given that the text of the SPB, or the other legal instruments challenged by
Argentina, does not answer the question of whether Section II.A.3 of the SPB directs the USDOC to
treat evidence concerning "dumping margins" and "import volumes" as conclusive in its likelihood
determinations, we consider it appropriate to anal yse evidence submitted by Argentina regarding the
consistent application of these provisions in deciding whether Section II.A.3 of the SPB is
inconsistent with Article 11.3 of the Agreement.
7.164 We note that ARG-63 and ARG-64 contain, inter alia, data on the name of the sunset review,
the date of the USDOC's determination, whether domes tic interested parties or exporters participated
in the review, the type of sunset review conducted, the outcome of the review and the legal basis of
the determination. In addition, Argentina also provided the texts of the individual determinations in
these sunset reviews.
7.165 At the outset, it should be noted that we based our analysis on the statistics regarding the
determinations made before the date of initiation of these panel proceedings, i.e. Argentina's request
for consultations.82 An analysis of the statistics provided by Argentina demonstrates that the USDOC
applied the contested provisions of the SPB in each sunset review and found likelihood of
continuation or recurrence in each one of these sunset reviews on the basis of one of the three
scenarios contained in Section II.A.3 of the SPB. We recall that the United States neither challenged
nor disproved the factual correctness of these statistics. We therefore find that the evidence submitted
by Argentina in exhibit ARG-63 demonstrates that the USDOC does in fact perceive the provisions of
Section II.A.3 of the SPB as conclusive regarding the issue of likelihood of continuation or recurrence
of dumping in the case of revocation of an order. As explained above, this runs counter to the
requirement of Article 11.3 to car ry out a rigorous examination and to base its determinations on a
sufficient factual basis.
Conclusion
7.166 On the basis of the above considerations, we find the provisions of Section II.A.3 of the SPB
to be inconsistent with Article 11.3 of the Agreement.
7.167 We find it important to mention that although our finding of inconsistency is based on the
evidence stemming from the consistent applicat ion of Section II.A.3 of the SPB, it does not
necessarily mean that the complain ing party has to produce statistical evidence that demonstrates a

80 Appellate Body Report, US – Carbon Steel, supra, note 15, para. 157.
81 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, supra, note 30, para. 168.
82 We note, however, that the statistics pertaining to the rest of the period, i.e. until the end of
December 2003, follow the same pattern that we have observed on the basis of the period ending as of
Argentina's request for consultations.

particular pattern of behaviour in a certain number or percentage of cases. As the Appellate Body
stated, "[t]he nature and extent of the evidence requ ired to satisfy the burden of proof will vary from
case to case".
83 We find that in the circumstances of the present proceedings the evidence submitted
by Argentina in ARG-63 is sufficient to demonstr ate that Section II.A.3 of the SPB directs the
USDOC to treat evidence with respect to "import vo lumes" and "dumping margins" as conclusive for
purposes of the latter's sunset determinations.
7.168 Having found Section II.A.3 of the SPB to be inc onsistent with Article 11.3, we need not, and
do not, consider it necessary to rule on Argentina's claim that the US practice in this respect is also
inconsistent with Article 11.3 for the same reasons.
7.169 Similarly, having found Section II.A.3 of the SPB to be WTO-inconsistent in this respect, we
do not address Argentina's alternative claim under Article X:3(a) of the GATT 1994.
Impact of the finding regarding the Sunset Policy Bulletin on the consistency of the Statute
7.170 We find it necessary to address the issue of wh ether our finding of inconsistency with respect
to the SPB has any impact on the status of the Ta riff Act in this regard. We recall that Argentina
requested that the Panel analyse the provisions of the Tariff Act, the SAA a nd the SPB in conjunction
with one another with respect to the present claim. We also recall our finding above that Section
752(c) of the Tariff Act, interpreted in light of the relevant provisions of the SAA, does not contain
any presumption with regard to the USDOC's likeli hood determinations. To the contrary, we found
that both the Tariff Act and the SAA state clearly that the USDOC can, and in fact "shall", take into
account other relevant factors upon good cause shown.
7.171 In our view, the SPB does not purport to interpret the provisions of the Tariff Act. This is
evidenced in the preamble of the SPB, which reads 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.84 (emphasis added)
7.172 The preamble states that the SPB is designed to complement, not interpret, the provisions of
the Tariff Act. Therefore, the provisions of the SPB in general, and those of Section II.A.3 in
particular, can not change the meaning of the rele vant provisions of the Tariff Act, including
Section 752(c) that we analysed and found to be co nsistent with Article 11.3 of the Agreement for
purposes of the present claim.
7.173 Assuming arguendo that the SPB did purport to interpret the provisions of the Tariff Act, our
conclusion would not change. We found above ( supra, para. 7.148) that the relevant provision of the
Tariff Act, i.e. Section 752(c), does not contain an y presumption and in fact explicitly provides that
the USDOC shall consider factors other than import volumes and dumping margins in its likelihood
determinations where good cause is shown. This demonstrates that the Statute contains an explicit
provision as to the factors that the USDOC has to co nsider in its likelihood determinations. It follows
that the SPB's provisions can not in any event change the plain meaning of the Tariff Act in this
regard.

83 Appellate Body Report, US – Carbon Steel, supra, note 15, para. 157.
84 Sunset Policy Bulletin (Exhibit ARG-35 at 18871).

3. US Law's Standard for the Likelihood of Continuation or Recurrence of Injury
Determinations in Sunset Reviews
(a) Arguments of parties
(i) Argentina
7.174 Argentina submits that Sections 752(a)(1) and (5) of the Tariff Act violate Articles 11.1, 11.3,
3.1, 3.2, 3.4, 3.7 and 3.8 of the Agreement because these provisions require the USITC to determine
whether there would be a likelihood of continuation or recurrence of injury "within a reasonably
foreseeable time" and they stipulate that the effects of the revocation of the duty may not be imminent
but may manifest themselves over a longer period of time. According to Argentina, this standard goes
too far into the future compared with the proper "likely" standard set out in Article 11.3.
(ii) United States
7.175 The United States contends that the statutory provisions under US law regarding the standard
by which the USITC has to determine likelihood of continuation or recurrence of injury in sunset
reviews are consistent with Article 11.3 of th e Agreement. According to the United States,
Article 11.3 does not impose a time-frame within wh ich likelihood determinations in a sunset review
have to be made.
(b) Arguments of third parties
(i) Korea
7.176 Korea argues that the meaning of the term "likely" under Article 11.3 is "probable".
However, the standard established by the US Statute and the SAA fails to meet this standard.
(ii) Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu
7.177 Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu contends that the
provisions of Article 3 of the Anti-Dumping Agr eement apply in the contex t of sunset reviews.
Although Article 11.3 is silent as to the standa rd and methodologies which Members must follow in
sunset reviews, it was not the drafters' intention to leave this matter to the complete discretion of the
investigating authorities.
(c) Evaluation by the Panel
7.178 Argentina bases its claim on the Tariff Act and the SAA. As stated above ( supra, para.
7.149), we shall analyze the provisions of the Tariff Act in light of the provisions of the SAA because
of the SAA's relevance under US law as the authoritative tool for the interpretation of the Statute.
7.179 Section 752(a)(1) of the Tariff Act reads, in relevant part:
(1) In general
...The Commission shall determine whether revocation 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...85 (emphasis added)
7.180 Section 752(a)(5) of the Tariff Act reads, in relevant part:

85 19 U.S.C. § 1675a(a)(1) (Exhibit ARG-1 at 1155).

(5) Basis for determination
The presence or absence of any factor which 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 revocatio n or termination may not be imminent , but may
manifest themselves only over a longer period of time.86 (emphasis added)
7.181 The SAA provides, in relevant part:
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 substitut ability 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.87 (emphasis added)
7.182 At the outset, we note that on its face Sec tion 752(a)(1) of the Tariff Act provides for the
"likely" standard for the USITC's likelihood determin ations. However, compared with the provisions
of Article 11.3, the Tariff Act goes one step fu rther and requires the USITC to inquire whether
revocation of the duty would be likely to lead to th e continuation or recurrence of injury within a
reasonably foreseeable time. In other words, the Statute specifies the temporal aspect of the USITC's
likelihood determinations in sunset reviews. Sect ion 752(a)(5), read in conjunction with the above-
quoted portion of the SAA, provides that although the meaning to be given to the concept of
"reasonably foreseeable time" will vary from case-to-cas e, it is clear that this standard means a longer
period of time than the imminence standard of Article 3.7 of the Agreement, which applies to threat of
material injury determinations in investigations.
7.183 The issue is, therefore, whether this additional provision of US law regarding the temporal
aspect of the USITC's sunset determinations changes the likely standard into a more flexible one,
which renders that law inconsistent with Article 11 .3, or the other provisions of the Agreement cited
by Argentina.
7.184 We note that Article 11.3, the provision that co ntains the main substantive requirements that
apply to sunset reviews, does not mention th e time-frame on which the investigating authorities
should base their sunset review determinations. Nor does Article 11.3 require the investigating
authorities to specify the time-frame on which thei r likelihood determination is based. All that
Article 11.3 requires is that the investigating au thority determine on a sufficient factual basis that
injury is likely to continue or recur should the duty be revoked. We are of the view, therefore, that the
US Statute that requires the USITC to determine whet her injury is likely to continue or recur within a
reasonably foreseeable time does not conflict with the "likely" standard of Article 11.3.
7.185 That does not mean, however, that there is no limitation in terms of the temporal aspect of
sunset determinations. Arguably, there is at leas t a logical limitation that would make it impossible
for an investigating authority to base its sunset de terminations on an unreasonably long period of time

86 19 U.S.C. § 1675a(a)(5) (Exhibit ARG-1 at 1156).
87 The SAA (Exhibit ARG-5 at 4211).

into the future. We note in this regard that an assessment regarding whether injury is likely to
continue or recur that focuses too far in the future would be highly speculative, and that it might be
very difficult to make a properly reasoned and su pported determination in this regard. The issue,
however, is whether the standard provided for under US law is inconsistent with that standard, and we
see no reason to believe that the "reasonably fores eeable time" standard adopted by the United States
would pose such difficulties.
7.186 Argentina submits that Article 11.3 requires an investigating authority to determine whether
termination of a measure would be likely to lead to the continuation or recurrence of injury upon
expiry of the measure. According to Argentina, by defining the "reasonably foreseeable time" as
longer than "imminent" the US statutory provisi ons run counter to the "likely" standard of
Article 11.3.88 We understand Argentina to argue that the likelihood determination must be based on
the circumstances as of the date of the proposed revocation of the measure.
7.187 We do not agree with the proposition that Article 11.3 necessarily requires that the
investigating authority base its likelihood of contin uation or recurrence of injury determination upon
the expiry of the duty. As we already stated, Artic le 11.3 does not impose a pa rticular time-frame on
which the investigating authority has to base its li kelihood determination. Further, in our view, the
investigating authority does not have to base its likelihood determination on a uniform time-frame
with respect to each injury factor that it takes into consideration. The time-frame regarding different
injury factors may be different from one anothe r depending on the circumstances of each sunset
review. For instance, in a case where the export ers have excessive inventories, the investigating
authority's evaluation of likely volume of dumped imports can be based on a relatively short time-
frame. On the other hand, an analysis regarding the cash flows or productivity of the domestic
industry may necessarily have to be based on a longer time-frame.
7.188 Argentina also contends that the cited provisi ons of the Tariff Act are inconsistent with
Articles 3.7 and 3.8 of the Agreement. We unders tand Argentina to argue that because Articles 3.7
and 3.8 of the Agreement contain provisions about fu ture injury determinations, they are relevant to
likelihood of continuation or recurrence of injury de terminations in sunset reviews. It follows that
these two provisions impose additional obligations on the investigating authorities in their sunset
determinations.
7.189 We note that there is a certain similarity between a threat of injury analysis in an anti-
dumping investigation and a likelihood of continuatio n or recurrence of injury determination in a
sunset review in that they both require prospective analysis. Hence, it could be argued that Article 3.7
provides context for the interpretation of Article 11 .3. In our view, however, the textual differences
outlined below preclude the importation of a comp letely different test from Article 3.7 into
Article 11.3.
7.190 Article 3 is titled "Determination of Injury". Fo otnote 9 to Article 3 sets out three types of
injury that can establish the basis of investigating authorities' injury determinations in anti-dumping
investigations.89 One of these is "threat of material injury", which is governed by the provisions of
Articles 3.7 and 3.8 of the Agreement. Article 11 is titled "Duration and Review of Anti-Dumping
Duties and Price Undertakings". More specifically, Article 11.3 sets out rules that apply to likelihood
of continuation or recurrence of injury determinatio ns in sunset reviews. The determinations set out
in Articles 3.7 and 11.3 are substantively different from one another. In this regard, we also

88 Second Written Submission of Argentina, para. 202.
89 Footnote 9 reads:
Under this Agreement the term "injury" shall, unless otherwise specified, be taken to mean
material injury to a domestic industry, threat of material injury to a domestic industry or
material retardation of the establishment of such an industry and shall be interpreted in
accordance with the provisions of this Article.

incorporate our analysis regarding the appl icability of Article 3 in sunset reviews ( infra, section
VII.E.3(c)(i)). We therefore consider that on the basis of a textual analysis of Articles 3.7 and 3.8 on
the one hand and Article 11.3 on the other, it becomes clear that they operate in highly distinct factual
situations. It follows that the provisions of Articles 3.7 and 3.8 do not apply to sunset reviews.
90
7.191 We note that our analysis based on the text of the Agreement is supported by the Appellate
Body's ruling in US – Corrosion-Resistant Steel Sunset Review , in which the differences between an
anti-dumping investigation and a sunset review were highlighted. The Appellate Body stated that
investigations and reviews are two distin ct processes with different purposes. 91 It follows that it is
normal that they may be subject to different rule s and disciplines where circ umstances so dictate.
This is not to suggest that no provision of the Ag reement that applies to i nvestigations can apply to
sunset reviews. Indeed, the Appellate Body has decided with respect to some of the provisions of the
Agreement that they also apply to sunset reviews. 92 Similarly, in this report, we have found that
certain provisions of Article 6 of the Agreement also apply to sunset reviews. 93 However, we do not
see any reason to reach the same conclusion with respect to Articles 3.7 and 3.8.
7.192 The overall scheme in which threat of mate rial injury determinations are made in
investigations is remarkably diff erent from that of a sunset review . The focus of the inquiry in a
sunset review is the likelihood of continuation or re currence of injury in the event of revocation of the
order, while in the case of an original inves tigation imports are not subject to an anti-dumping
measures at the time the analysis is performed. In an investigation, the investigating authority
engages in a threat of material injury analysis only if there is no present material injury. In a sunset
review, however, factors giving rise to material inju ry may be present as of the date of the proposed
revocation of the measure. In other words, in a s unset review, there is a history of injury in the
records of the investigatin g authority. In our view, therefore, it is entirely sensible that threat of
material injury determinations in investigations an d likelihood of continuation or recurrence of injury
determinations in sunset reviews be governed by different rules.
(i) Conclusion
7.193 On the basis of the above considerations, we find that Sections 752(a)(1) and (5) of the Tariff
Act are not WTO-inconsistent in respect of the "wit hin a reasonably foreseeable" time-frame that they
contain regarding the USITC's likelihood determinations in sunset reviews.
D. CLAIMS RELATING TO THE USDOC'S LIKELIHOOD DETERMINATION IN THE OCTG SUNSET
REVIEW
1. Arguments of Parties
(a) Argentina
7.194 Argentina argues that the USDOC's decision to conduct an expedited sunset review and the
application of the waiver provisions of US law in the case of OCTG from Argentina violated

90 We note the US statement that the obligation to determine likelihood of continuation or recurrence of
injury under Article 11.3 is a fourth type of determination regarding injury, separate from the three other types
of injury determinations set out in footnote 9 of the Agreement. See, Response of the United States to
Question 20(a) from the Panel Following the Second Meeting. We disagree with the United States on this issue.
By concluding that Articles 3.7 and 3.8 do not apply to sunset reviews, we are by no means implying that
Article 11.3 contains such a fourth category of injury determination.
91 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , supra, note 30, paras. 106-
107.
92 See, for instance, Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , supra,
note 30, paras. 109, 151 and 158.
93 See, for instance, supra, paras. 7.108-7.112.

Article 11.3 because the USDOC fail ed to conduct a review and to ma ke a likelihood determination.
According to Argentina, the USDOC failed to base its determinations on fresh facts gathered during
the sunset review. Rather, inconsistently with Articles 2 and 11.3, it relied on the dumping margin
obtained in the original investigation and reported that margin to the USITC as the likely dumping
margin at which dumping was found to be likely to c ontinue or recur. The fact that this original
dumping margin was calculated through the practice of "zeroing" also made the USDOC's reliance on
that margin in this sunset review inconsistent with Article 11.3.
7.195 Argentina contends that the conduct of an exped ited sunset review and the application of the
waiver provisions violated Articles 6.1 and 6.2 be cause Siderca, the only Argentine exporter that
submitted a substantive response to the notice of initia tion of the sunset review at issue, was denied a
full opportunity to submit evidence and to defend its interests in this sunset review. Argentina also
argues that the USDOC did not take the provisions of Article 6.8 and Annex II of the Agreement into
account in its decision to use facts available.
7.196 Finally, Argentina submits that in this sunset review the USDOC also violated Articles 12.2
and 12.2.2 because it is impossible to discern the basis of the USDOC's decision to conduct an
expedited review. In particular, Argentina argues that the public notice does not contain information
about dumping determinations in this sunset review and that it is not clear whether the basis for the
USDOC's decision to expedite was the “waiver” provision under Section 751(c)(4), or the “facts
available” provision under Section 751(c)(3)(B) of the Tariff Act.
(b) United States
7.197 The United States argues that the USDOC carried out a WTO-consistent sunset review in this
case. The United States submits that the USDOC did not determine that Siderca had waived its right
to participate in the instant sunset review. The USDOC decided to conduct an expedited sunset
review because the respondents' share in the total imports of the subject product into the United States
was significantly less than 50 per cent. The United States contends that the USDOC based its
determinations in this sunset review on the in formation from the original investigation and the
information submitted by interested parties in their substantive responses to the notice of initiation in
this sunset review.
7.198 The United States asserts that Siderca was given notice of the information required and a full
opportunity to submit evidence and to defend its intere sts in the sunset review at issue, but it did not
avail itself of some of these opportunities to subm it information. In its sunset determinations the
USDOC considered the information Siderca submitted in its substantive response to the questionnaire.
Therefore, the USDOC did not act inconsistently with Articles 6.1 and 6.2.
7.199 The United States contends that the Final Sunset Determination and the accompanying
Decision Memorandum explain the bases for the USDOC's sunset determinations in this sunset
review and therefore the USDOC did not act inconsistently with Article 12.2.
2. Arguments of Third Parties
(a) European Communities
7.200 The European Communities cont ends that the USDOC's decisi on to conduct an expedited
sunset review simply because of Siderca's share in the volume of total imports of the subject product
into the United States was inconsistent with Articl e 11.3 of the Agreement. Since this decision also
resulted in the exclusion of relevant evidence it also violated Articles 6.1 and 6.2.

3. Evaluation by the Panel
(a) Relevant facts
7.201 In addition to Argentina, three other countrie s were subject to the USDOC part of the OCTG
sunset review.
94 With respect to all four countries, th e USDOC concluded that the revocation of the
orders would likely lead to the continuation or recurrence of dumping.
7.202 With regard to all of these four countries, the USDOC's likelihood determination was based
on the existence of dumping margins and reduced import volumes following the imposition of the
original anti-dumping duties. 95 The USDOC decided that since dumping had continued over the life
of the orders and import volumes had dropped signi ficantly as compared to the pre-order levels,
dumping was likely to continue or recur in the event of revocation.
7.203 There were no affirmative waivers with respect to Argentine exporters subject to this sunset
review. In other words, no Argentine exporter expl icitly waived participatio n. The only Argentine
exporter that cooperated with the USDOC and for which an individual dumping margin was
calculated in the original investigation was Siderc a. Following the imposition of the order Siderca
stopped exporting OCTG to the United States. However, the USDOC determined that other
Argentine exporter(s) had exported the subject product to the United States during the period of
application of the measure. The USDOC did not iden tify these exporter(s) in its final determination,
nor did it point to evidence in the record establishing the identity of these exporter(s).96
7.204 Since these other Argentine exporter(s) did not submit a response to the notice of initiation of
this sunset review, they were deemed to ha ve waived their right to participate under
Section 351.218(d)(2)(iii) of the USDOC's Regulations. It is therefore factually undisputed that
deemed waivers provisions of US law were applied in this sunset review with respect to one or more
Argentine exporter(s) other than Siderca.
7.205 Following the initiation of the sunset review at is sue, Siderca was the only Argentine exporter
that submitted a substantive response to the notic e of initiation. We recall that according to
Section 351.218(e)(1)(ii)(A) of the USDOC's Regu lations, in cases where the exporters from a
particular country that submit a complete substantiv e response to the notice of initiation of a sunset
review altogether account for less than 50 per cent of the total exports of the subject product from that
country during the five-year period of application of the measure concerned, that aggregate response
is deemed to be inadequate. An inadequate res ponse triggers the conduct of an expedited – as
opposed to full - sunset review. Accordingly, although Siderca's substantive response to the notice of
initiation was complete, i.e. it contained all the info rmation the US law required, since Siderca's share
in the total exports of OCTG from Argentina during the five-year period of application of the measure
at issue was below 50 per cent, the USDOC conducted an expedited sunset review. Following the
submission of its substantive response to the noti ce of initiation, Siderca did not make any further
submissions to the USDOC.
7.206 In its sunset determination with regard to Ar gentina, the USDOC considered the information
submitted in Siderca's complete substantive response to the notice of initiation as well as some other
evidence from other sources, such as import statistics. Having found that dumping continued over the
life of the measure and that import volumes declin ed significantly, in its order-wide determination

94 The other countries were Italy, Japan and Korea. See, Issues and Decision Memorandum (Exhibit
ARG-51 at 1).
95 Issues and Decision Memorandum (Exhibit ARG-51 at 5).
96 However, the United States stated that a company called Acindar, which was subject to an
administrative review following the completion of the sunset review at issue, might have shipped the subject
product to the United States during the initial period of application of the anti-dumping duty at issue. See,
Response of the United States to Questions 12(a) and 13(a) from the Panel Following the First Meeting.

with respect to Argentina, the US DOC determined that dumping would be likely to continue or recur
should the duty be revoked.
(b) Alleged violations of Articles 11.3 and 2 of the Agreement
7.207 As an initial matter, we note Argentina's as sertion that the application of the waiver
provisions and the conduct of an expedited sunset review violated Article 11.3 of the Agreement
because the USDOC did not make the requisite lik elihood determination of Article 11.3 when
concluding that dumping was likely to continue or recur should the duty be revoked.97
7.208 Regarding the issue of whether or not the US DOC made a likelihood de termination in this
sunset review, we note that the contents of the USDOC's Issues and Decision Memorandum clearly
reveals that such a determination was made. Therefore, there is no doubt that the USDOC made a
determination as such. The question is whether that determination conformed to the provisions of the
Agreement. With that in mind, we now turn to the various aspects of the USDOC's sunset
determination that are being challenged by Argentina.
7.209 Argentina contends that in the instant sunset review, the USDOC based its likelihood of
continuation or recurrence of dumping determinations on past data. It did not gather fresh evidence
that would support a forward-looking likelihood analysis. Instead, the USDOC merely relied on the
dumping margin from the original investigation as the basis of its likelihood determination in the
instant sunset review.
7.210 The United States submits that in its likelihood determination in the instant sunset review, the
USDOC relied on the dumping margins found in th e original investigation, the depressed import
volumes and the information submitted by the intere sted parties. According to the United States,
Article 11.3 of the Agreement requires nothing more.
7.211 The issue is whether the USDOC's likelihood determ ination in this sunset review rested on a
sufficient factual basis.98 In this respect, we recall our finding above that on its face Article 11.3 does
not impose a particular methodology to follow in sunset determinations. However, as we stated
above, the Article 11.3 obligation to “determine ” the likelihood of continuation or recurrence of
dumping requires the inve stigating authority to make a reasoned finding on the basis of positive
evidence that dumping is likely to continue or recur should the measure be revoked.
7.212 With that in mind, we turn to the USDOC's Issues and Decision Memorandum which reads in
relevant parts:
[T]he Department indicated that normally it will determine that revocation of an
antidumping order is likely to lead to co ntinuation or recurrence of dumping where
(a) dumping continued at any level above de minimis after the issuance of the order,
(b) imports of the subject merchandise ceased after the issuance of the order, (c)

97 First Written Submission of Argentina, paras. 148 and 155.
98 We note that, regarding the sufficiency of the factual basis of an investigating authority's likelihood
determination in sunset reviews, the Appellate Body in US – Corrosion-Resistant Steel Sunset Review endorsed
the following findings of that panel:
In order to continue the imposition of the measure after the expiry of the five-year application
period, it is clear that the investigating authority has to determine, on the basis of positive
evidence, that termination of the duty is likely to lead to continuation or recurrence of
dumping and injury. An investigating authority must have a sufficient factual basis to allow it
to draw reasoned and adequate conclusions concerning the likelihood of such continuation or
recurrence. (footnote omitted, emphasis added)
Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, supra, note 30, para. 114.

dumping was eliminated after the issuan ce of the order and import volumes for
subject merchandise declined significantly.
99 (emphasis added)

We note that there have been above de minimis margins for the investigated
companies throughout the history of the orders, except for one company covered by
the order on Japan.100 (emphasis added)

Based on this analysis, the Department find s that the existence of dumping margins
after the issuance of the orders is highly pr obative of the likelihood of continuation or
recurrence of dumping. Therefore, given that dumping continued after the issuance
of the orders, average imports continued at levels far below pre-order levels from
1995 through 1999, and respondent interested parties waived their right to participate
in these reviews or failed to submit adequate substantive responses, we determine that
dumping is likely to continue if the orders were revoked.
101 (emphasis added)

In the Argentine case, there has been no decline in dumping margins coupled with an
increase in imports. Rather, absent an administrative review, the dumping margin
from the original investigation is the only indicator available to the Department with
respect to the level of dumping. Because 1.27 [sic] per cent is above the 0.5 per cent
de minimis standard applied in sunset reviews, we find that dumping has continued
over the life of the Argentine order and is likely to continue if the order were revoked.
102 (emphasis added)
7.213 We note that the USDOC's likelihood determinati on in the instant sunset review is premised
on two findings: (a) that dumping continued above de minimis levels over the life of the order, and
(b) that import volumes declined following the imposition of the order.
7.214 Argentina asserts that the USDOC's finding that dumping had continued over the life of the
order was devoid of factual support because Siderca had not made any consumption shipments to the
United States during this period and no administrative reviews were carried out to determine whether
shipments made by other Argentine exporters were dumped. Therefore, the USDOC could not
reasonably conclude that dumping continued over the life of the order.
7.215 The United States contends that the USDOC did not use the original dumping margin as the
basis of its sunset determination in the instant sunset review. The USDOC made its likelihood
determination on the basis of the existence of dumping during the life-span of the measure at issue.
Following that likelihood determination, the USDOC sent the original dumping margin to the USITC
as the margin that was likely to continue or recur.
7.216 In order to clarify the basis of the USDOC's determination that dumping had continued over
the life of the measure, we put the following question to the United States following our first meeting
with the parties:

99 Issues and Decision Memorandum (Exhibit ARG-51 at 4).
100 Issues and Decision Memorandum (Exhibit ARG-51 at 5).
101 Issues and Decision Memorandum (Exhibit ARG-51 at 5).
102 Issues and Decision Memorandum (Exhibit ARG-51 at 5).

The Panel notes that the USDOC's Issues and Decision Memorandum in the instant
sunset review mentions that it was determined that dumping continued over the life of
the measure in question and that the margin of dumping did not decline in the same
period. Please explain the factual basis of that determination, in particular, please
indicate whether the USDOC calculated a dumping margin for Siderca or any other
Argentine exporter after the imposition of the original measure.103
7.217 The United States responded as follows:
In the sunset review, Commerce found that dumping continued to exist during the
five years preceding the sunset review be cause there were shipments of Argentine
OCTG during four of those five years and dumping duties were assessed on those
same imports.104 (footnote omitted)
7.218 We note that parties' views differ as to wh at was the basis of the USDOC's finding that
dumping continued over the life of the measure. Argentina argues that the USDOC's likelihood
determination was based on the 1.36 per cent margin of dumping from the original investigation
whereas the United States submits that it was based on the existence of the shipments of the subject
product to the United States and the continued collec tion of the duty, not the margin from the original
investigation per se.
7.219 In our view, the above-quoted parts of the USDOC's Issues and Decision Memorandum
demonstrate that the USDOC relied on the existence of the original dumping margin when concluding
that dumping continued over the life of the order. The issue therefore is whether the existence of a
dumping margin from the original investigation can be interpreted to mean that dumping continued
over the life of the measure. In our view, it can not. The original dumping margin reflects the result
of the dumping margin calculations in the original investigation, which establish the basis for the anti-
dumping measure to be imposed in that investigatio n. The existence of the original dumping margin
can not be the basis of a factual determination that dumping continued over the life of the measure.
Exporters subject to the measure might have changed their export or home market prices, or, their cost
of production might have changed. Thus, if an in vestigating authority relies upon the existence of
dumping over the life of the measure as part of its sunset determination, it has to have an adequate
factual basis for so concluding. This can be, inter alia , a determination made as part of a duty
assessment process carried out under Article 9 of th e Agreement, or a review under Article 11.2. In
our view however, the original determination of dumping by itself cannot represent a sufficient factual
basis for concluding that dumping continued during the life of the measure, let alone representing an
adequate factual basis to conclude that dumping is likely to continue or recur after the expiry of the
order. 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.
7.220 Assuming arguendo that the basis of the USDOC's finding that dumping continued over the
life of the measure was, as the United States asse rts, the continued shipments of the subject product
and the continued collection of the duty, rather than the existence of the original dumping margin per
se, our analysis would not change. In our view, the fact that some imports of the subject product
continued to be shipped from Argentina to the United States and that anti-dumping duties continued to
be collected on these shipments over the life of the order does not represent an adequate factual basis
for the proposition that dumping continued in that period.
 105

103 Question 23 from the Panel Following the First Meeting.
104 Response of the United States to Question 23 from the Panel Following the First Meeting.
105 We note that Argentine exporters subject to the anti-dumping duty at issue could request an
administrative review in order to have their dumping margins calculated by the USDOC and have the duties

(i) Conclusion
7.221 We recall that the USDOC's likelihood determina tion in this sunset review was based on two
factual findings, i.e. first dumping continued over the life of the measure and second import volumes
declined following the imposition. We have found that the factual basis of the first one is not proper.
We therefore conclude that the USDOC's likelihood determination in the instant sunset review was
inconsistent with Article 11.3 of the Anti-Dumping Agreement.
7.222 We recall that in the OCTG sunset review, deemed waivers provisions of US law were
applied to Argentine exporter(s) other than Siderca. The implication of this is that the USDOC was
required to make an affirmative likelihood determinat ion with respect to these exporter(s). We recall
that we found deemed waivers provisions to be inconsistent with the investigating authorities'
obligation to determine likelihood of continuation or recurrence of dumping under Article 11.3.
Although the USDOC's final determination does not refer to these company-specific determinations,
logically these determinations must be a relevant part of the factual basi s of the USDOC's overall
country-wide likelihood determination in the OCTG sunset review. In our view, the application of
deemed waivers provisions to Argentine exporters ot her than Siderca invalidated the factual basis of
the overall country-wide determination. Therefore, in addition to our above-stated considerations, we
also find that the application of these provisions in the OCTG sunset review was inconsistent with
Article 11.3 of the Agreement.
7.223 We note that Argentina also asserts that the dumping margin from the original investigation
was calculated through the so-called methodology of zeroing and therefore could not be relied upon
by the USDOC in its likelihood determination in this sunset review. It follows, in Argentina's view,
that the USDOC violated Articles 2.4 and 11.3 of the Agreement by relying on this margin in its
likelihood determinations. Having found that the US DOC erred in this sunset review by relying on
the existence of this dumping margin in its determ ination that dumping continued over the life of the
measure, we need not, and do not, evaluate various aspects of the methodology through which that
original dumping margin was obtained.
(c) Alleged violations of Article 6 of the Agreement
(i) Nature of the obligations in Articles 6.1, 6.2, 6.8 and Annex II of the Agreement and their
applicability in sunset reviews
7.224 Argentina contends that the application of waiv er provisions and the conduct of an expedited
sunset review in the OCTG sunset review violated Articles 6.1 and 6.2 of the Agreement. According
to Argentina, the conduct of an expedited review also violated Article 6.8 and Annex II of the
Agreement.
7.225 We note that Argentina's claims here are based on the assumption that Articles 6.1, 6.2
and 6.8 and Annex II of the Agreement apply to sunset reviews. According to Argentina, these
provisions apply to sunset reviews by virtue of th e cross-reference in Article 11.4. The United States,
however, argues that this cross-reference incorporat es into sunset reviews only those provisions of
Article 6 that deal with evidence and procedure. According to the United States, the same holds true
for the provisions of Annex II; they also apply to sunset reviews to the extent they concern evidence
and procedure.

paid refunded, if necessary. In our view, however, given the low dumping margin (1.36 per cent) and the low
volume of imports made during the period of application of the measure at issue, the fact that no Argentine
exporter requested the initiation of an administrative review could by no means be conclusive as to whether or
not these sales in question were dumped.

7.226 Therefore, the initial issue that we need to resolve is whether Articles 6.1, 6.2 and 6.8 and
Annex II apply to sunset reviews. In this context, we recall our above observation regarding the
nature of the obligations set out in Articles 6.1 and 6.2 of the Agreement ( supra, paras. 7.113-7.117).
We also recall our finding that these two articles apply to sunset reviews because they contain rules
that deal with evidence and procedure as set out in Article 11.4 of the Agreement. In addition to
Articles 6.1 and 6.2, we consider that Article 6.8 and Annex II also apply to sunset reviews because
their provisions concern "evidence and procedure". Article 6.8 explains under what circumstances an
investigating authority is allowed to base its determ inations on the facts available. Annex II contains
detailed provisions to be followed by investigating authorities when resorting to facts available under
Article 6.8.
(ii) Examination of the consistency of the USDOC's determination with Articles 6.1 and 6.2 of the
Agreement
7.227 Argentina argues that Article 6.1 was violated by the USDOC because the conduct of an
expedited review and the applic ation of the waiver provisions prevented Siderca from submitting
evidence to the USDOC. According to Argentina, the USDOC ignored the information submitted by
Siderca.106
7.228 We recall that in the OCTG sunset review, waiv er provisions of US law were not applied to
Siderca. Certainly Siderca did not explicitly waive it s right to participate. Nor was it deemed by the
USDOC to have waived participation because it su bmitted a complete substantive response to the
notice of initiation. Although Argentine exporters other than Siderca were deemed to have waived
their right to participate, that did not, and in f act could not possibly, have an effect on Siderca's
procedural rights under Article 6.1 in this sunset review. Therefore, we di sagree with Argentina's
statement that the application of waiver provisions deprived Siderca from su bmitting evidence to the
USDOC.
7.229 It is factually correct that in the OCTG sunset review the USDOC carried out an expedited
review. The issue therefore is what effect the conduct of an expedited sunset review had on Siderca's
procedural rights under Article 6.1.
7.230 We note that the USDOC's final Issues and Decision Memorandum clearly demonstrates that
the information Siderca submitted in its substantive response to the notice of initiation was considered
by the USDOC.
107 Argentina has not directed our attention to any fact which demonstrates that the
USDOC prevented Siderca from su bmitting evidence or that the information submitted by Siderca
was not taken into consideration by the USDOC.
7.231 We also note that in addition to its substantive response to the notice of initiation, Siderca had
the opportunity to submit a rebuttal brief to the USDOC, which it did not. 108 Siderca could also

106 First Written Submission of Argentina, para. 167.
107 In this regard, we note the following parts of the USDOC's Memorandum:
With respect to the Argentine order, Siderca argues that revocation of the order would not
result in antidumping margins above de minimis. It states that Siderca's margin is less than the
WTO's standard for de minimis in the antidumping agreement at Article 5.8, and, therefore,
there is no basis to conclude that dumping is likely to recur under the standard in Article 11.

In response to Siderca's comments in the Argentine case, the SAA and the Sunset Policy
Bulletin provide that declining or no dumping margins accompanied by steady or increasing
imports may indicate that a company does not have to dump in order to maintain market
share...
Issues and Decision Memorandum (Exhibit ARG-51at 4-5).
108 In this regard, Section 351.218(d)(4) of the Regulations provides:

submit its views to the USDOC as to the USDOC' s adequacy determination and the appropriateness
of conducting an expedited sunset review in this case, which it chose not to.
109 We do not know
whether it would have been enough to satisfy the requirements of Article 6.1 had Siderca used these
other opportunities to submit information to the USDOC. However, the fact is that it did not.
7.232 Argentina also submits that the application of waiver provisions and the conduct of an
expedited sunset review in the OCTG sunset review violated Article 6.2 of the Agreement because
this precluded Siderca from defending its interests as set out in Article 6.2.
7.233 We recall that Article 6.2 provides:
Throughout the anti-dumping investigation all interested parties shall have a full
opportunity for the defence of their interests. To this end, the authorities shall, on
request, provide opportunities for all intere sted parties to meet those parties with
adverse interests , so that opposing views may be presented and rebuttal arguments
offered. Provision of such opportunities mu st take account of the need to preserve
confidentiality and of the convenience to th e parties. There shall be no obligation on
any party to attend a meeting, and failure to do so shall not be prejudicial to that
party's case. Interested parties shall also have the right, on justification, to present
other information orally. (emphasis added)
7.234 Article 6.2 generally deals with th e right of interested parties to defend their interests in an
investigation and, by operation of Article 11.4, in a sunset review. More specifically, it provides that
the investigating authority, if so requested, must provide interested parties an opportunity to meet
those parties with adverse interests, so that opposing views may be presented and rebuttal arguments
offered.
7.235 In response to questioning from the Panel regarding the procedural rights conferred upon
interested parties in expedited s unset reviews, the United States stated that hearings were not
generally held in expedited sunset reviews. 110 Given the explicit provision of Article 6.2 that hearings
have to be arranged when so requested by interested parties, it becomes clear that in the OCTG sunset
review Siderca was subjected to a procedure that fe ll short of the requirements of Article 6.2 of the
Agreement in respect of hearings. The reason why the USDOC carried out an expedited sunset
review was Siderca's share in the total imports of th e subject product. In other words, had exporters
that had exported the subject product to the United Stat es in the five-year period of application of this
measure made a complete submission in response to the notice of initiation Siderca would have had
the right to require that the USDOC arrange a heari ng to allow interested parties to exchange their
views with others. In our view, the fact that certain exporters do not participate in a sunset review can
not justify depriving cooperating exporters of their procedural rights under Article 6.2.

(4)Rebuttal to substantive response to a notice of initiation . Any interested party that files a
substantive response to a notice of initiation under paragraph (d)(3) of this section may file a
rebuttal to any other party's substantive response to a notice of initiation not later than five
days after the date the substantive response is filed with the Department. (Exhibit US-3 at
13522).
109 In this regard, Section 351.309(e) of the Regulations provides:
(e) Comments on adequacy of response and appropriateness of expedited sunset review. (i) in
general. Where the Secretary determines that respondent interested parties provided
inadequate response to a Notice of Initiation ... interested parties...that submitted a complete
substantive response to the Notice of Initiation ... may file comments on whether an expedited
sunset review ... is appropriate based on the adequacy of response to the notice of initiation.
(Exhibit US-3 at 13524).
110 Response of the United States to Question 2(d) from the Panel Following the First Meeting.

Conclusion
7.236 We therefore find that the USDOC acted consiste ntly with Article 6.1 of the Agreement, but
inconsistently with Article 6.2 in the OCTG sunset review.
(iii) Alleged violations of Article 6.8 and Annex II of the Agreement in the OCTG review
7.237 Argentina contends that the USDOC's conduct of an expedited sunset review violated
Article 6.8 and Annex II of the Agreement because the USDOC applied facts available to Siderca on
the grounds that Siderca had failed the adequacy test of US law that triggered the expedited sunset
review. According to Argentina, Article 6.8 doe s not permit the use of facts available on such
grounds. Siderca fully cooperated with the US DOC, thus the USDOC could not possibly use facts
available against Siderca. Argentina also asserts that the USDOC did not use facts available in the
manner set out in Article 6.8 and Annex II.
7.238 The United States submits that the USDOC did not apply facts available with respect to
Siderca. Rather, it applied facts available in the context of its order-wide likelihood determination.
The United States also contends that as part of facts available the USDOC used the information
Siderca submitted in its substantive response to the notice of initiation. According to the United
States, therefore, the USDOC did not act incons istently with Article 6.8 or Annex II of the
Agreement.111
7.239 We note that in the OCTG sunset review, because of Siderca's zero per cent share in the total
imports of the subject product, the USDOC carried out an expedited sunset review in which it based
its determinations on facts available. We al so note that Section 351.308(f) of the USDOC's
Regulations, the provision of US law regarding th e information to be used by the USDOC in an
expedited sunset review where facts available are used, confirms the US assertion that the USDOC
applied facts available vis-à-vis Argentina, and not Siderca.112 It is therefore factually clear that in the
instant sunset review the USDOC applied facts available on an order-wide basis and not vis-à-vis
Siderca. We have seen nothing in the record of this sunset review that would suggest the contrary.
We finally note that the USDOC's Issues and Decision Memorandum states that as part of facts
available, information submitted by Siderca was considered by the USDOC in its determinations.113

111 First Written Submission of the United States, paras. 214 and 221.
In this context, we note the following statement of the United States:
The Final Sunset Determination , the Decision Memorandum , and the Adequacy
Memorandum, however, each clearly state that Siderca filed a complete substantive response.
Commerce’s Adequacy Memorandum and the Decision Memorandum also make clear that
Commerce’s decision to expedite the review was based on the failure of Argentine
producers/exporters of OCTG, other than Siderca, to respond to the notice of initiation.
Consequently, Commerce determined to expedite the sunset review and to use facts available
in making the final sunset determination because the Article 11.3 likelihood determination is
made on an order-wide basis and Siderca represented zero exports to the United States of
OCTG during the five-year period preceding the sunset review. (footnotes omitted)
First Written Submission of the United States, para. 243.
112 Section 351.308(f) of the USDOC's Regulations reads in relevant part:
(f) Use of facts available in a sunset review . Where the Secretary determines to issue final
results of sunset review on the basis of facts available, the Secretary will normally rely on:
(1) Calculated countervailing duty rates or dumping margins, as applicable, from prior
Department determinations; and
(2) Information contained in parties' substantive responses to the Notice of Initiation filed
under § 351.218(d)(3), consistent with section 752(b) or 752(c) of the Act, as applicable.
(emphasis added)
19 C.F.R. § 351.308(f) (Exhibit US-3 at 13524).
113 See, supra, note 107.

7.240 Therefore, the issue is whether the USDOC viol ated Article 6.8 and therefore Annex II of the
Agreement in its use of facts available on an orde r-wide basis in the OCTG sunset review. In our
view, it did not.
7.241 We note that the USDOC used facts available in its likelihood determination for Argentina.
This was a determination that cove red, in addition to Siderca, othe r Argentina exporter(s) that had
exported the subject product to the United States during the period of application of this measure. In
our view, the impact of facts available, if any, was on these other Argentina exporters who did not
cooperate with the USDOC.
114 This is because by using facts available, the USDOC reached a
likelihood determination for all Argentine exporter s. Since these other exporters had not made
themselves known to the USDOC, the USDOC used the information submitted by Siderca and other
information in the record in reaching a conclusion with respect to these exporters.
7.242 We see no harm caused to Siderca because of the USDOC's use of facts available. The
information submitted in Siderca's only submission to the USDOC, i.e. its subs tantive response to the
notice of initiation, was considered by the USDOC. Further, as we noted above, Siderca chose not to
use two additional opportunities that were available under US law to submit information, or make
comments, to the USDOC.
7.243 We note that as part of this claim Argentina also argues that the US DOC acted inconsistently
with Article 6.9 of the Agreement. The nature of Argentina's argument in connection with this article
is not, however, entirely clear. In its second written submission, Argentina asserted that the USDOC's
determination based on facts available violated , among others, Article 6.9 of the Agreement.
115 In its
first oral submission, Argentina submitted that the USDOC violated Article 6.9 by not disclosing the
essential facts forming the basis of the USDOC's decision to carry out an expedited sunset review.116
7.244 We consider that Argentina's argumentation in this regard has not been developed such that it
would allow us to address and resolve it as an independent claim. Even if it had been sufficiently
substantiated by Argentina, resolving such a claim would not, in our view, have a significant
contribution to the resolution of the dispute at issu e generally. We note that we have found certain
substantive inconsistencies in the USDOC's determinations in the OCTG sunset review. Having made
these findings of inconsistency regarding the substance of the USDOC's determinations, entertaining
another claim under Article 6.9 of the Agreement, which is purely procedural, would not have any
significant value added with respect to the United Stat es' bringing its measure into conformity with its
WTO obligations. We therefore decline to make any ruling in this regard.
Conclusion
7.245 Under these circumstances, therefore, we find th at the USDOC did not act inconsistently with
Article 6.8 and Annex II of the Agreement in its use of facts available.
(d) Alleged violations of Article 12 of the Agreement
7.246 Argentina asserts that the USDOC violated Article 12.2 of the Agreement by failing to
explain the basis of its sunset determinations in its final determination. Firs t, Argentina submits that
the USDOC did not explain whether the basis of its determinations was the waiver provisions of US
law or the provisions relating to facts available. Second, Argentina submits that the USDOC acted

114 Argentina is not arguing that the USDOC's use of facts available in this sunset review violated these
other Argentine exporters' rights under Article 6.8. In any event, in our view, the use of facts available could
not possibly lead to a violation of Article 6.8 with respect to these exporters given that they did not cooperate
with the USDOC.
115 Second Written Submission of Argentina, paras. 123-125.
116 First Oral Submission of Argentina, para. 63.

inconsistently with Articles 12.2.1 and 12.2.2 by failing to include in its final determination fresh
information collected during the sunset review regarding Siderca's dumping margins.
7.247 The United States submits that the USDOC's final determination contains the bases for the
USDOC's likelihood determination. According to th e United States, Article 12.2.2 does not impose
any substantive obligation on the investigating authorities in sunset reviews.
7.248 We note that Article 12 is entitled "Public Notice and Explanation of Determinations". It sets
forth the investigating authorities' obligation to give public notice of certain decisions/determinations
made at various stages of an investigation. Paragrap h 3 of Article 12 states that the provisions of that
Article apply mutatis mutandis to reviews under Article 11. Ther efore, the provisions of Article 12
apply to sunset reviews with necessary changes that the nature of sunset reviews may necessitate.
7.249 With that in mind, we now turn to Argentina's fi rst argument, that it is impossible to discern
the basis for the USDOC's determination. We not e that regarding the content of public notices,
Article 12.2 of the Agreement that Argentina cites in this context provides in relevant part:
Each such notice shall set forth, or othe rwise make available through a separate
report, in sufficient detail the findings and conclusions reached on all issues of fact
and law considered material by the investigating authorities.
7.250 In light of the obligation set forth in Article 12.2, we shall inquire whether the USDOC's final
determination in the instant sunset review cont ained sufficient information as to the USDOC's
findings and conclusions on the relevant issues of fact and law in the instant sunset review. In this
context, we note the following portions of the USDOC's Issues and Decision Memorandum:
Although the Department received a substantive response on behalf of Siderca, the
Department explained in it s August 22, 2000 adequacy determination that because,
during the period 1995 to 1999, the average annual share of Siderca's exports of the
subject merchandise vis-à-vis the total Argentine exports of the subject merchandise
during the same period was significantl y below the fifty-per cent threshold...the
Department determined Siderca's substantive response to be inadequate.117
In the instant sunset reviews, the Departme nt did not receive an adequate response
from respondent interested parties. Pursua nt to Section 351.218(d)(2)(iii) of the
Sunset Regulations, this constitutes a waiver of participation.118
Therefore, given that dumping continued after the issuance of the orders, average
imports continued at levels far below pre- order levels from 1995 through 1999, and
respondent interested parties waived their ri ght to participate in these review or failed
to submit adequate substantive responses, we determine that dumping is likely to
continue if the orders were revoked.119
In the Argentine case, however, the Department determined to conduct an expedited
review because of its finding that Siderca did not provide adequate substantive
responses.120 (emphasis added)
7.251 We note that the memorandum generally provides that Argentina was treated differently from
the other countries subject to the sunset review by stating that Siderca did not provide an adequate

117 Issues and Decision Memorandum (Exhibit ARG-51 at 3).
118 Issues and Decision Memorandum (Exhibit ARG-51 at 5).
119 Issues and Decision Memorandum (Exhibit ARG-51 at 5).
120 Issues and Decision Memorandum (Exhibit ARG-51 at 7).

substantive response to the notice of initiation, wh ereas the respondents in other countries waived
their right to participate in the sunset review by failing to file a complete
 substantive response.
However, in the second paragraph quoted above, the USDOC seems to state that all interested parties
waived their right to participate in this sunset review by not su bmitting an adequate substantive
response. This seems to be at odds with the ab ove-outlined structure of US law regarding waivers
(supra, para. 7.84) and the submission of an adequate response to the notice of initiation in sunset
reviews (supra, note 40). In response to questioning from the Panel, the United States pointed out
that the phrase "this constitutes a waiver of participat ion" refers to the interested parties that failed to
submit a substantive response to the notice of initia tion whereas Siderca, as an interested party that
did submit such a response, was not deemed to have waived its right.
7.252 In light of the above, we are of the view that the existence of this inconsistent statement
regarding the legal basis under US law on which Siderca was treated by the USDOC does not render
this determination inconsistent with Article 12. 2 of the Agreement because when viewed in its
entirety the memorandum states that Siderca and th e other respondents were treated differently and
that Siderca had not waived its right to participate in this sunset review.
7.253 Regarding the second argument raised by Arge ntina, that the USDOC failed to comply with
Article 12.2.2 because its final determination did not contain fresh evidence regarding its likelihood of
continuation or recurrence of dumping determinations, we note that Argentina is implying that
Article 12.2 imposes certa in substantive obligations on invest igating authorities. However, neither
Article 12.2 nor the other paragraphs of Article 12 contain substantive obligations regarding the
conduct of sunset reviews. The substantive requir ements of the Agreement regarding sunset reviews
have to be found in the substantive provisions such as Article 11.3 and the treaty interpreter should
refrain from interpreting procedural provisions of the Agreement, such as Articles 12 and 6, in a way
to impose additional substantive obligations on i nvestigating authorities. In this context, we find
useful the following finding of the panel in US – Corrosion-Resistant Steel Sunset Review:
In other words, by finding that the provisions of Article 6.10 may contain evidentiary
and procedural obligations that are, in gene ral, applicable in sunset reviews, we do
not (and cannot) find that Article 6.10, by virtue of the cross-reference in
Article 11.4, operates so as to super-impose an additional substantive requirement of
re-calculation of the likely dumping margin in sunset reviews, a requirement that not
even Japan argues is found in the text of Artic le 11.3, or elsewhere in the text of the
Anti-Dumping Agreement. We, as a treaty interpreter, are not allowed to derive
substantive obligations out of the appli cation of the evidentiary and procedural
provisions of Article 6.121 (footnote omitted)
We note that the panel's view on this issue was also upheld by the Appellate Body.122
(i) Conclusion
7.254 We therefore decline to sustain Argentina's claim under Article 12 of the Agreement.

121 Panel 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/R,
adopted 9 January 2004, as modified by the Appellate Body Report, WT/DS244/AB/R, para. 7.206.
122 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, supra, note 30, para. 155.

E. CLAIMS RELATING TO THE USITC'S LIKELIHOOD DETERMINATION IN THE OCTG SUNSET
REVIEW
1. Introduction
7.255 The USITC part of the OCTG sunset review conc erned five countries, i.e. Argentina, Italy,
Japan, Korea and Mexico. Because both the dome stic industry and the respondent interested party
groups submitted adequate responses, the USITC carried out a full sunset review. 123 The USITC
carried out a cumulative analysis with respect to these five countries. 124 The USITC determined that
material injury would be likely to continue or recur in the case of revocation of the order on OCTG
from Argentina, Italy, Japan, Korea and Mexico.125
2. Temporal Aspect of the USITC's Likelihood Determination
(a) Arguments of parties
(i) Argentina
7.256 Argentina submits that the application of Secti ons 752(a)(1) and (5) of the Tariff Act in the
instant sunset review was inconsistent with Artic les 11.3 and 3 of the Agreement. According to
Argentina, the USITC's determination merely cite s the relevant provisions of the Act and the SAA
and does not specify what "reasonably foreseeable time" means for purposes of the instant sunset
review.
(ii) United States
7.257 The United States argues that because Article 11.3 is silent as to the time-frame relevant to
sunset reviews, the USITC's determination can not be inconsistent with Articles 3 and 11.3 of the
Agreement on the grounds that it did not specify the time-frame on which it was based.
(b) Evaluation by the Panel
7.258 Argentina argues in the first place that the fact that the USITC applied Sections 752(a)(1) and
(5) of the Tariff Act in the instant sunset review made its determinations WTO-inconsistent. We
recall, however, our above finding that the US stat utory provisions relating to the time-frame on the
basis of which the USITC makes its likelihood de terminations in sunset reviews are not WTO-
inconsistent ( supra, para. 7.193). We can not, therefore, find that their application in the OCTG
sunset review were necessarily WTO-inconsistent.
7.259 Argentina argues that even if the US statutory provisions containing this standard are WTO-
consistent, the USITC failed to apply these provisions properly to the evidence before it in the instant
sunset review. Argentina asserts that the USITC acted inconsistently with Article 11.3 of the
Agreement by failing to explain the parameters of th e reasonably foreseeable period of time on the
basis of which it found injury to be likely to continue or recur.
126 We recall our analysis that
Article 11.3 does not require investigating authoriti es to specify the time-frame on which they are
basing their likelihood of continuation or recurrence of injury determinations ( supra, para. 7.184).
Article 11.3 provides that the investigating authority must establish on the basis of a sufficient factual

123 Although the USITC found that the Japanese exporters' response was not adequate, it nevertheless
decided to conduct a full sunset review as to Japan for reasons of administrative efficiency. USITC's Sunset
Determination (Exhibit ARG-54 at 2).
124 USITC's Sunset Determination (Exhibit ARG-54 at 14).
125 USITC's Sunset Determination (Exhibit ARG-54 at 16-17).
126 First Written Submission of Argentina, paras. 277-278; Second Written Submission of Argentina,
para. 206.

basis that there is a likelihood of continuation or recurrence of injury. We therefore see no WTO-
inconsistency in the USITC's failure to specify th e time period that it considered to be reasonably
foreseeable for purposes of its likelihood determinations in the instant sunset review.
(i) Conclusion
7.260 In light of the above considerations, we decline Argentina's claim regarding the application by
the USITC of Sections 752(a)(1) and (5) of the Tariff Act in the OCTG sunset review.
3. Standard Applied by the USITC
(a) Arguments of parties
(i) Argentina
7.261 Argentina submits that the USITC failed to apply the "likely" standard of Article 11.3 in the
sunset review at issue. According to Argentina, although the relevant provision of the US Statute and
the USITC's determination in the instant sunset review contains the word "likely", the USITC in fact
applied a different standard in th e instant sunset review. According to Argentina, "likely" means
"probable". In this sunset review, however, the US ITC applied a "possibility" standard instead of the
proper likely standard of Article 11.3 in respect of its determinatio ns regarding the likely volume of
dumped imports, the likely price effect of such imports and their likely impact on the US domestic
industry. Thus, the USITC determined 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. Argentina also
argues that regarding these three aspects, the USIT C failed to carry out an objective examination on
the basis of positive evidence, inconsistently with Articles 11.3, 3.1 and 3.2 of the Agreement.
7.262 Argentina also alleges violations of Articles 3.4 and 3.5 of the Agreement in the instant sunset
review.
(ii) United States
7.263 The United States submits that in the instant sunset review the USITC applied the "likely"
standard provided for under Article 11.3. The Unite d States disagrees with Argentina's view that
likely only means probable. According to the United States, Article 11.3 of the Agreement uses the
word "likely", and not "probable", hence finding a decisive synonym for likely would not shed more
light on the meaning of that term.
7.264 The United States also disputes Argentina's allegations regarding the standard applied with
respect to the three aspects of the USITC's sunset determination in this case, the likely volume of
dumped imports, the likely price effect of such imports and their likely impact on the US domestic
industry. The United States generally argues that Article 3 – including Article 3.1 – does not apply to
sunset reviews. According to the United States, the dictates of Article 3.1 are potentially
incompatible with the nature of sunset determin ations under Article 11.3. The United States
nevertheless submits that the violations alleged by Argentina with regard to Article 3.1 are groundless
because the USITC's determinations demonstrate that it did not act inconsistently with these
provisions.
7.265 The United States also disputes Argentina's claims regarding Articles 3.4 and 3.5.

(b) Arguments of third parties
(i) European Communities
7.266 The European Communities agrees with Arge ntina that the provisions of Article 3 of the
Anti-Dumping Agreement apply mutatis mutandis in the context of sunset reviews. According to the
European Communities, given the introductory word ing of Article 3.1, the absence of an explicit
cross-reference in Article 11.3 to Article 3 is i rrelevant. The European Communities also agrees with
Argentina that the required standard in sunset determinations is “likely”, not “possible”. According to
the European Communities, the USITC did not correct ly apply the “likely” standard in the instant
sunset review.
(ii) Japan
7.267 Japan argues that the provisions of Article 3 ap ply to injury determinations in sunset reviews
under Article 11.3. Therefore, the requirements of Ar ticles 3.1, 3.2, 3.4 and 3.5 have to be fulfilled in
such reviews.
(c) Evaluation by the Panel
(i) Applicability of Article 3 in sunset reviews
7.268 We note that the majority of Argentina's claims challenging the USITC's determinations in
the OCTG sunset review are premised on various paragraphs of Article 3 of the Agreement, solely or
together with Article 11.3. Par ties' views as to the applicability of Article 3 in sunset reviews,
however, diverge. Argentina submits generally that Article 3 of the Agreem ent applies to sunset
reviews. In this regard, Argentina relies mainly on the provisions of footnote 9 of the Agreement that
specifies the three types of inju ry, and on previous Appellate Body decisions. According to the
United States, however, Article 3 does not apply to sunset reviews carried out under Article 11.3
because the nature of the inquiry is different und er these two provisions. Article 3 applies to a
determination of "injury" whereas the focus of the i nquiry in a sunset review is a determination of the
"likelihood of continuation or recurrence of injury".
7.269 Given the central role of Article 3 in Argentina's arguments raised in support of its claims
relating to the USITC's actions in the OCTG sunset review and the divergence between parties' views
on this matter, we find it useful to outline at this juncture our views regarding the applicability of
Article 3 in sunset reviews.
7.270 We note that neither Article 11.3 nor any other paragraph of Article 11 contains any provision
as to whether the provisions of Article 3 in general, or those of certain specific paragraphs thereof in
particular, apply to sunset reviews. Nor does Artic le 3 contain any cross-reference to that effect.
However, there are textual indications in Article 3 that may suggest that its provisions define the
scope of injury determinations throughout the Agr eement. For instance, the introductory phrase in
Article 3.1 ("for purposes of Article VI of GATT 1994") and the phrase "[u]nder this Agreement" in
footnote 9 indicate that the concept of injury should be understood in the manner set out in Article 3
throughout the Agreement. In this context, we also incorporate our above analysis regarding the
textual analysis of Articles 3 and 11.3 of the Agreement (supra, paras. 7.184-7.191).
7.271 We note that the panel in US – Corrosion-Resistant Steel Sunset Review
 also opined that the
term injury should be understood in the manner described in Article 3. However, that panel
concluded that these phrases indicated that Artic le 3's scope of application was not limited to

investigations, hence it also generally applied to sunset reviews.
127 That panel then went on and
analysed whether a particular paragraph of Article 3, namely paragraph 3, was applicable in sunset
reviews and decided that because of its text Artic le 3.3 was an exception to its general observation
and hence it did not apply to sunset reviews.
7.272 To the extent that that panel found that the above-cited phrases found in Article 3 and
footnote 9 thereto make the provisions of Article 3 generally applicable to sunset reviews, we
disagree. We note that the nature of the inquiries in investigations and sunset reviews is significantly
different. Regarding the difference s between original investigations and sunset reviews, we note the
following observation of the Appellate Body in US – Corrosion-Resistant Steel Sunset Review:
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.
128
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 an ti-dumping duty, investigating authorities must
determine whether the expiry of the duty that was imposed at the conclusion of an
original investigation would be likely to lead to continuation or recurrence of
dumping.129
7.273 In our view, the Appellate Body's reasoning regarding the differences between original
investigations and sunset reviews pertaining to dumping determinations equally applies to the injury
side of investigations and sunset reviews. The focus of the injury determinations in investigations is
to determine the existence of injury during the pe riod of investigation whereas sunset reviews are
about the likelihood of continuation or recurrence of injury in the event of revocation of an order that

127 In this regard, we note the following statements of the panel in US – Corrosion-Resistant Steel
Sunset Review:
First, Article 3 is entitled "Injury". This title is linked to footnote 9 of the Anti-Dumping
Agreement, which indicates that: "[u]nder this Agreement the term "injury" shall, unless
otherwise specified, be taken to mean material injury to a domestic industry, threat of material
injury to a domestic industry or material retardation of the establishment of such an industry
and shall be interpreted in accordance with the provisions of this Article." This seems to
demonstrate that the term "injury" as it appears throughout the Anti-Dumping Agreement –
including Article 11 – is to be construed in accordance with this footnote, unless otherwise
specified. This would seem to support the view that the provisions of Article 3 concerning
injury may be generally applicable throughout the Anti-Dumping Agreement and are not
limited in application to investigations. Article 11 does not seem to explicitly specify
otherwise in the case of sunset reviews.
There are other textual indications that the Article 3 injury obligations may generally apply
throughout the Agreement. For example, the use of the language "for purposes of Article VI
of GATT 1994" in Article 3.1 also suggests that, in general, the obligations in Article 3
pertaining to injury may apply throughout the Anti-Dumping Agreement , i.e. they are not
limited to investigations. (footnote omitted)
Panel Report, US – Corrosion-Resistant Steel Sunset Review, supra, note 121, paras. 7.99-7.100.
128 (original footnote) Appellate Body Report, US – Carbon Steel, para. 106.
129 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , supra, note 30, paras. 106-
107.

has already been in place for up to five years. Just as the Appellate Body stated that an investigating
authority is not required to make a dumping determination in a sunset review 130, we consider that an
investigating authority is not required to make an in jury determination in a sunset review. It follows,
then, that the obligations set out in Article 3 do not normally apply to sunset reviews.
7.274 If, however, an investigating authority decides to conduct an injury determination in a sunset
review, or if it uses a past injury determination as part of its sunset dete rmination, it is under the
obligation to make sure that its injury determinat ion or the past injury determination it is using
conforms to the relevant provisions of Article 3. 131 For instance, Article 11.3 does not mention
whether an investigating authority is required to calculate the price effect of future dumped imports on
the prices of the domestic industry. In our view, this means that an investigating authority is not
necessarily required to carry out that calculation in a sunset review. However, if the investigating
authority decides to do such a calculation, then it would be bound by the relevant provisions of
Article 3 of the Agreement. Similarly, if, in its sunset injury determinations, an investigating
authority uses a price effect calculation made in the original investigation or in the intervening
reviews, it has to assure the consistency of that calculation with the existing provisions of Article 3.
7.275 However, this does not mean that we will disreg ard the provisions of Article 3 in our analysis
regarding the USITC's determinations in the instant review. Just as the Appellate Body in US –
Corrosion-Resistant Steel Sunset Review pointed out regarding the definition of dumping set out in
Article 2.1 of the Agreement 132, we consider that throughout the Agreement – including sunset
reviews – the term injury should be understood and interpreted as set out in Article 3 of the
Agreement, including footnote 9 thereto. The Agreement contains no other definition of injury made
for purposes of sunset reviews. Therefore, although we find that the provisions of various paragraphs
of Article 3 do not necessarily apply in sunset revi ews, we shall in our analysis be mindful of the
definition of injury set out in footnote 9 and the para meters of injury determin ations as generally set
out in Article 3. We shall find guidance in Article 3 where appropriate.
7.276 It follows from the above-outlined analysis that we will entertain Argentina's claims under
Article 3 only to the extent the USITC made an inju ry determination – as opposed to a likelihood of
continuation or recurrence of injury – in the OCTG sunset review, or in cases where the USITC used
an injury determination from the original OCTG investigation or the intervening reviews and
Argentina alleges that the USITC failed to make th e necessary corrections to these original injury
determinations to make them consistent with the current provisions of Article 3.
(ii) Claims relating to the USITC's determinations regarding the likely volume of dumped
imports, their likely price effect and their likely impact on the US domestic industry
7.277 Argentina contends that the USITC applied a standard different from the "likely" standard of
Article 11.3 in the instant sunset review. Accordin g to Argentina, the USITC applied a "possibility"
standard instead of the "likely" standard of Article 11.3 of the Agreement which according to
Argentina means "probable". In the view of Argentina, the fact that the USITC did not apply the
likely standard can be seen through an analysis of its determinations relating to the likely volume of
dumped imports, their likely price effect and their likely impact of the US domestic industry.
Argentina also asserts that the USITC violated Articles 3.1 and 3.2 of the Agreement in its
determinations relating to these three factors because it failed to carry out an objective examination on
the basis of positive evidence. Ar gentina concedes, however, that the US Statute and the USITC's
sunset determination contains the word "likely".

130 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, supra, note 30, para. 123.
131 We find support for this proposition in the Appellate Body's findings in US – Corrosion-Resistant
Steel Sunset Review . See, Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , supra, note
30, paras. 126-130.
132 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, supra, note 30, para. 126.

7.278 We note that Argentina's claim regarding the USITC's injury analysis with respect to the
likely volume of dumped imports, the likely price effect of such imports and their likely impact of the
US domestic industry is two-fold. First, Argentina asserts that with regard to each one of these three
factors the USITC failed to apply the likely standa rd of Article 11.3. Second, Argentina contends
with respect to the same three aspects of the USIT C's determinations that the USITC failed to conduct
an objective examination on the basis of positive ev idence, inconsistently with Articles 3.1 and 3.2.
Hence, in the context of this claim Argentina claims violations of Article 11.3 as well as Articles 3.1
and 3.2 of the Agreement.
7.279 In accordance with our above-framed approach re garding the applicability of Article 3 of the
Agreement to sunset reviews, we find it usef ul to first inquire whether the USITC made a
determination of injury or a determination of the li kelihood of continuation or recurrence of injury in
the instant sunset review. We note that the USITC' s determination makes clea r that it is about the
likelihood of continuation or recurrence of in jury, rather than a de termination of injury.
133 Nor does
Argentina argue that what the USITC did in this case was a determination of injury. Similarly,
Argentina does not assert that in the OCTG review the USITC used an injury determination from the
original OCTG investigation that is now inconsistent with the provisions of Article 3 of the
Agreement. We will therefore only entertain Artic le 11.3 aspects of Argentina's claim and decline
those relating to Article 3.
7.280 However, we note that the crux of Argentina's claim 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.
We recall that the above-described standard of review ( supra, paras. 7.1-7.5) applicable to the present
proceedings provides that we should find that the USITC acted in a WTO-consistent way if it
established the facts properly and evaluated them in an objective and unbiased manner. It follows that
the substance of Argentina's claim under Articles 3.1 and 3.2, the alleged failure to carry out an
objective examination on the basis of positive eviden ce, directly overlaps with the standard of review
that we shall apply in this case. For the purposes of the present claim, the fact that we will not
consider Article 3 aspects of Argentina's claim he re will not bring about any practical difference in
terms of the outcome of our analysis.
7.281 We will apply, therefore, the above-described st andard of review in determining whether the
USITC acted consistently with the Agreement regard ing these three aspects of its determinations in
the instant sunset review. If we find that the USITC's establishment of facts was proper and that these
facts were evaluated in an unbiased and objective manner, we will not find an inconsistency even if
we might have reached a different conclusion on the basis of the same facts. Given that the issue is
whether the USITC's likelihood determination was based on a proper establishment of facts and on an
unbiased and objective evaluation thereof, in case we find that either one of these criteria is not met
we will find a violation of Article 11.3, not 3.1 or 3.2.
7.282 Having set out our approach with regard to Argentina's present claim, we now turn to the
legal arguments Argentina raised in this context.
7.283 We recall our above observation that Argentina concedes that on its face the USITC's
determination in the OCTG suns et review contains the word "likely". The USITC's final
determination reads, in relevant part:
Based on the record in these five-year revi ews, we determine under section 751(c) of
the Tariff Act of 1930, as amended ("the Act"), that revocation of the antidumping
duty orders on Oil Country Tubular Goods ("OCTG") other than drill pipe ("casing
and tubing") from Argentina, Italy, Japan, Korea, and Mexico and of the
countervailing duty order on casing and tubing from Italy would be likely to lead to

133 See, for instance, pages 1, 16 and 33 of the USITC's Sunset Determination (Exhibit ARG-54).

continuation or recurrence of material injury to an industry in the United States within
a reasonably foreseeable time.134 (emphasis added)
We note that, as Argentina agrees, on its face the USITC's determination references the likely
standard of Article 11.3.
7.284 However, Argentina puts forward other arguments in its effort to prove that notwithstanding
the standard spelled out in its final determination, the USITC did in fact use a different standard in the
sunset review at issue. In this respect, Argentina first asserts that the USITC's statements in different
fora reveals the fact that it interprets "likely" to mean "possible" rather than "probable". One such
alleged admission relates to the US ITC's statement before a US court that "likely" does not mean
"probable", but something else. The second relate s to the USITC's views expressed before a NAFTA
panel in which the USITC allegedly stated that "likely" does not necessarily mean "probable".
7.285 We note that the standard set out in Article 11.3 of the Agreement for the investigating
authorities' sunset determinations is "likely". This standard applies to the likelihood of continuation
or recurrence of dumping as well as injury determinatio ns in sunset reviews, and this is precisely the
standard that the USITC applied. It seems to us th at the essence of Argentina's claim is not that the
USITC applied the wrong standard, but that it erred in determining that the likely standard was met.
Our task is to reach a decision on Argentina's alle gation that the USITC erre d in the instant sunset
review in the application of the likely standard of Article 11.3. Hence, the USITC's statements before
US courts or before a NAFTA pane l regarding the meaning of likely as used in Article 11.3 of the
Agreement are not relevant to our consideration as to whether the USITC's determination in this
sunset review present proceedings satisfied Article 11.3's likely standard.
7.286 We therefore turn to the specific aspects of th e USITC's determination in the instant sunset
review, regarding which Argentina alleges that th e USITC failed to apply Article 11.3's likely
standard.
Likely volume of dumped imports
7.287 Argentina submits that the USITC's analysis of the likely volume of dumped imports was not
based on an objective examination of the evidence in the record.
7.288 We note that the USITC's analysis of the likely volume of dumped imports is found on pages
17-20 of the USITC's Sunset Determination. This part of the determination contains a detailed
discussion of the issues relating to the likely volume of dumped imports. On page 17, the USITC
starts its analysis with the relevant findings in the original investigation and then discusses the
developments during the period of application of the measure. In the following pages, the USITC
provides supporting arguments for its conclusion th at there will be a significant volume of dumped
imports in the event of revocation. Regarding capacity utilization, although the USITC acknowledges
that the exporters' capacity utilization rates were high, it concludes that these foreign producers can
devote more of their productive capacity from ot her types of tubular products to casing and tubing 135
because these two groups of products are produced in the same production lines with the same
machinery. The USITC then explains the reasons on the basis of which it made this determination. In
this context, the USITC mentions five reasons.
7.289 Argentina challenges the USITC's reasoning on three grounds and asserts therefore that the
USITC's determination was not based on an objective examination of the evidence in the record.

134 USITC's Sunset Determination (Exhibit ARG-54 at 1).
135 OCTG includes two different product sub-groups: "Casing and tubing" and "drill pipe". The like
product definition in the OCTG sunset review at issue included "casing and tubing", but not "drill pipe". See,
USITC's Sunset Determination (Exhibit ARG-54 at 1-4).

7.290 The main argument that Argentina raises in th is respect relates to th e USITC's finding that
Tenaris
136 could re-orient more of its production capacity to the US market. Argentina does not
dispute the fact that Tenaris could shift its production capacity used in the production of other types of
pipe and tube products to casing and tubing. Indeed , Argentina states that the only way for Tenaris to
increase its exports of casing and tubing into the Un ited States would be through shifting more of its
capacity to the produc tion of this product. 137 Argentina asserts, however, that there was no positive
evidence in the record of the OCTG sunset review that would support the USITC's finding that
Tenaris had an incentive to shift its production in such a way. Therefore, the issue is whether the
USITC's determination that Tenaris could shift its productive capacity from other pipe and tube
products to casing and tubing had a sufficient factual basis in the record.
7.291 We note that the USITC identified five supporting arguments for its determination that
subject producers, including Tenaris, could devo te more of their productive capacity to the US
market. The USITC's determination reads, in relevant 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 record indicates that these producers have
incentives to devote more of their prod uctive capacity to producing and shipping
more casing and tubing to the U.S. market.
First, ... While the Tenaris companies seek to downplay the importance of the U.S.
market relative to the rest of the world, th ey acknowledge that it is the largest market
for seamless casing and tubing in the world. Given Tenaris' global focus, it likely
would have a strong incentive to have a significant presence in the U.S. market,
including the supply of its global customers' OCTG requirements in the U.S. market.
Second, casing and tubing are among the highest valued pipe and tube products,
generating among the highest profit margins....
Third, the record in these reviews indicates that prices for casing and tubing on the
world market are significantly lower than prices in the United States...We have
considered respondents' arguments that the domestic industry's claims of price
differences are exaggerated, but nevertheless conclude that there is on average a
difference sufficient to create an incentiv e for subject producers to seek to increase
their sales of casing and tubing to the United States.
Fourth, subject country producers also face import barriers in other countries, or on
related products...
Finally, we find that industries in * **of the subject countries are dependent on
exports for the majority of their sales...
We therefore find that, in the absence of the orders, the likely volume of cumulated
subject imports, both in absolute terms and as a share of the U.S. market, would be
significant.
138 (footnotes omitted)
7.292 We note that Argentina challenges two of these five points highlighted by the USITC.
Therefore, we shall first entertai n Argentina's arguments regarding these two points before reaching

136 Tenaris is the name of a group of companies including Siderca. See, First Written Submission of
Argentina, footnote 37. Therefore, for purposes of our analysis, we consider that Tenaris refers to Siderca.
137 First Written Submission of Argentina, para. 244.
138 USITC's Sunset Determination (Exhibit ARG-54 at 19-20).

our conclusion regarding Argentina's main claim th at the USITC's determina tion regarding the likely
volume of dumped imports was not based on an objective examination of the evidence in the record.
7.293 Argentina first contends that the USITC's findin g regarding the existence of trade barriers in
third-country markets was only based on an antidumping order imposed by Canada against Korea.
Since the USITC could not cite any other trade barrier against the other four c ountries subject to this
sunset review, Argentina asserts that this finding was not based on positive evidence.
7.294 The USITC's determination reads, in relevant part:
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 U.S. antidumping duty orders on circular, welded, non-alloy steel pipe.
Canada currently imposes 67 per cent antidumping duty margins on casing from
Korea.139 (footnotes omitted)
7.295 We note that the USITC referred to a number of trade barriers. However, of these barriers
only one related to the subject product, i.e. Canadian anti-dumping measure on casing and tubing
from Korea. Others concerned related products, i. e. products that could be produced in the same
production lines as casing and tubing. The issue th erefore is whether the USITC erred in considering
that certain exporters that were subject to trade ba rriers with respect to certain product types, which
could be produced in the same production lines as casing and tubing, might shift their production to
casing and tubing, which could enter the US market free of the anti-dumping measure at issue in these
proceedings. Given that it is undisputed betwee n the parties that such shifting was technically
possible, we see no reason why the USITC could not make such an inference in the circumstances of
the instant sunset review. It is only normal to expect a producer to seek to maximize its profits,
which, in this case, would be possible through shifting production to casing and tubing in order to
enter the US market free of the anti-dumping duty at issue had it been revoked. We therefore consider
that this aspect of the USITC's conclusion was reasoned in light of the evidence in the record.
7.296 Next, Argentina submits that the USITC's analysis concerning the price differences between
the US and the world markets was based on anecdotal evidence rather than independent reports. We
note that the USITC's report cites th e testimony of three individuals in this sector as evidence of this
price differentiation and it cites no objection ra ised by interested parties in this respect.
140 Argentina
is not raising any argument as to the correctness of the substance of this testimony. Nor has it brought
to our attention another piece of evidence that might support the opposite finding in this regard.
Argentina's claim in this regard therefore is limi ted to the kind of evidence the USITC relied upon.
Keeping in mind our standard of review with resp ect to factual determinations by an investigating
authority, and conscious that there are no rules in the Anti-Dumping Agreement as to the type of
evidence that can support an investigating authority 's findings, we are of the view that the USITC's
reference to the testimonies of individuals who are knowledgeable in the relevant sector was proper.
7.297 Argentina also argues that the fact that the producers forming Tenaris already had long-term
contracts with their customers indicated to the USITC that Tenaris was not likely to increase its
exports to the United States in the event of revocation. This is because these producers would not turn
away their long-term customers for the sake of increasing their exports to the United States. The
United States asserts, and the USITC's Final Determ ination states, that given the difference between
the US and world market prices, the United States' being the world's largest OCTG market and casing

139 USITC's Sunset Determination (Exhibit ARG-54 at 20).
140 USITC's Sunset Determination (Exhibit ARG-54 at 21, footnote 128).

and tubing's being the highest valued pipe and tube product, the USITC was justified in concluding
that Tenaris had a strong incentive to increase exports to the United States. We find it reasonable to
conclude from these facts that Tenaris had an ince ntive to increase its exports to the United States
should the measure be revoked. In our view, a dete rmination that certain producers have an incentive
to increase their exports towards a certain market is one that can be made on the basis of an analysis
of various factors, such as the size of the targ et market, differences betw een prices and qualities and
other costs associated with the sh ipment of the subject product. In the circumstances of the instant
sunset review, we see no element in the USIT C's Final Determination which would support the
assertion that the USITC's determination on this matter was based on an improper establishment of
facts or a biased or unobjective evaluation thereof.
Conclusion
7.298 In light of the above considerations, we conclude that Argentina has failed to prove that the
USITC's determinations concerning the likely volume of dumped imports were WTO-inconsistent and
therefore decline this aspect of Argentina's claim.
Likely price effects of dumped imports

7.299 The USITC's discussion of the issues relating to the likely price effect of dumped imports is
found on pages 20 and 21 of its Final Determination. Here too, the USITC starts its analysis by citing
the relevant findings in the original investigation. It then discusses the determinations made during
the period of application of the order and mentions that price underselling continued over the life of
the measure. The USITC then concludes:
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, th e volatile nature of U.S. demand, and the
underselling by the subject imports in the original investigation and during the current
review period, we find that in the absence of the orders, casing and tubing from
Argentina, Italy, Japan, Korea and Mexico likely would compete on the basis of price
in order to gain additional market share. We find that such price-based competition
by subject imports likely would have significant depressing or suppressing effects on
the prices of the domestic like product.141 (footnote omitted)
7.300 Argentina argues that the USITC's findings regarding the likely price effects of dumped
imports were not based on an objec tive examination of the evidence in the record. First, according to
Argentina, the USITC's price underselling analysis was based on a limited set of comparisons.
7.301 We note the following part of the USITC's determination in this regard:
While direct selling comparisons are limi ted because the subject producers had a
limited presence in the U.S. market during the period of review, the few direct
comparisons that can be made indicate that subject casing and tubing generally
undersold the domestic like product especially in 1999 and 2000. 142 ( f o o t n o t e
omitted)
7.302 Argentina does not dispute the fact that th e USITC did carry out some sort of price
comparison. According to Argentina, however, the ba se of this comparison was not adequate because
of the limited number of comparisons involved.

141 USITC's Sunset Determination (Exhibit ARG-54 at 21).
142 USITC's Sunset Determination (Exhibit ARG-54 at 21).

7.303 In our view, a price comparison made as part of a sunset determination does not necessarily
require a threshold in terms of the number of comparis ons used. In fact, in sunset reviews, depending
on the volume of imports following the imposition of the measure the number of such comparisons
may inevitably be limited. It may even be impo ssible to do any comparison in cases where imports
completely cease following the imposition. In this case, the USITC carried out a number of price
comparisons as part of its price effect analysis. The USITC's determination explains that the reason
for the limited number of price comparisons was the low volume of imports following the imposition
of the measure at issue. Argentina does not dis pute this fact. Argentina does not contend that the
USITC, for instance, acted selectively in making th ese comparisons or that the methodology used was
biased or otherwise improper. The simple fact that the number of price comparisons was limited does
not make this aspect of the USITC's determination inconsistent with Article 11.3 of the Agreement.
We therefore consider that under the circumstance s of this case the USITC's calculations were
adequate because the volume of export sales into the US market were limited in the period of
application of the measure.
7.304 Argentina also argues that the USITC's determination that price was an important factor in the
purchasing decisions in the US market was flawed because the documents in the record show that
purchasers attached a similar importance to factors ot her than price. We note that the staff report that
accompanied the USITC's determination in the instant sunset review demonstrates that purchasers in
the US market ranked eight factors between 1.8 and 2.0 on a scale of importance from 0 to 2.0. Price,
being one of such factors, was ranked 1.8.
143 In our view, the fact that other factors are also important
does not diminish the importance of price in purchasing decisions. The USITC did not state that price
was the only
 important factor, or even the most important factor; it just stated that it was an important
factor.
7.305 In light of these circumstances, we do not consider that the USITC erred in relying on this
fact in its determinations merely because of the fact that some other factors were also ranked similarly
to price. This alone does not suffice to prove that the USITC's likely price effects analysis was not
based on an objective examination of the evidence in the record, as Argentina asserts.
Conclusion
7.306 On the basis of the above, we are of the view that the USITC's determination regarding the
likely price effect of dumped imports was based on an objective examination of the evidence in the
record.
Likely impact of dumped imports on the US industry

7.307 Argentina argues that the USITC's determinations regarding the likely impact of future
imports on the US industry were not based on an ob jective examination of the evidence in the record.
According to Argentina, the USITC's flawed dete rmination regarding the likely volume and price
effects of dumped imports fatally affected its exam ination of the adverse impact of such imports on
the US industry.
7.308 In the relevant part of its determination, the USITC once again commences its analysis by
citing its relevant findings in the original investig ation and continues with the findings made during
the period of application of the measure. The US ITC clearly finds that th e state of the domestic
industry as of the date of the sunset review at issue is positive. However, on the basis of its earlier
findings regarding the likely volume of dumped imports and their likely price effects, it nevertheless
concludes that these imports are likely to have an adverse impact on the US industry. The
determination reads, in relevant parts:

143 Staff Report Annexed to USITC's Sunset Determination (Exhibit ARG-54 at II-19).

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 original investigations
, subject imports captured
market share and caused price effects despite a significant increase in apparent
consumption in 1993 and 1994 as compared to 1992. In these reviews , we find that a
significant increase in subject imports is likely to have negative effects on both the
price and volume of the domestic producers' shipments despite strong demand
conditions in the near term. We find that these developments
 likely would have a
significant adverse impact on the production, shipments, sales, market share, and
revenues of the domestic industry. This reduction in the domestic industry's
production, shipments, sales, market share, and revenues would result in erosion of
the domestic industry's profitability as well as its ability to raise capital and make and
maintain necessary capital investments.
144 (emphasis added)
7.309 Argentina contends that given the positive trends in the state of the domestic industry as of
the date of the determination, the USITC should have made the opposite conclusion. According to
Argentina, given the positive state of the US indus try, the USITC must have made its conclusion on
the basis of its findings in the original investigation.
7.310 We note that the USITC's determination references the USITC's findings in the original
investigation as well as its determinations in the instant sunset review regarding the likely volume and
prices effect of dumped imports and concludes that these developments would have a significant
adverse impact on various aspects of the state of the US industry in the future. It is therefore not
linked solely to the findings in the original investigat ion. Therefore, the issue here is whether, given
its findings in the original investigation and those in the instant sunset review regarding the likely
volume of dumped imports and their likely price effect, the USITC could conclude that the likely
imports would have an adverse impact on the US industry.
7.311 In our view, the USITC did not act inconsistently with Article 11.3 of the Agreement in its
determination regarding the likely impact of future dumped imports on the US industry. In this
context, we recall our above analysis regarding th e nature of the inquiry under Article 11.3 of the
Agreement ( supra, para. 7.211). Just as on the dumping side of sunset determinations, there is
nothing in Article 11.3 that requires an investiga ting authority to follow a particular method in the
likelihood of continuation or recu rrence of injury determinations. As long as the investigating
authority's determination is based on a sufficient factual basis and it reflects an objective examination
of these facts, it will meet the requirements of Article 11.3. In this case, the USITC found that
imports were likely to increase and to have a negative effect on the prices of the US industry in the
event of revocation of the measure at issue. Then, the USITC found that this likely increase in
imports and their likely price effect would have a negative impact on the US industry. In the
circumstances of the case at hand, we find it proper to conclude that the likely increased volume and
negative price effect of dumped imports would also have a negative impact on the state of the US
industry. Further, in our view, the USITC's observations regarding the state of the US industry as of
the date of the sunset review at issue do not precl ude it from nevertheless finding that the US industry
is likely to be affected by the increase in the volume and the negative effect of the prices of the likely
dumped imports.

144 USITC's Sunset Determination (Exhibit ARG-54 at 22-23).

Conclusion
7.312 On the basis of the above explanations, we find that under the circumstances of this sunset
review, the USITC's determinations regarding the li kely consequent impact of the likely dumped
imports on the US industry was not inconsistent with Article 11.3 of the Agreement.
4. Alleged violation of Article 3.4 of the Agreement
(a) Arguments of parties
(i) Argentina
7.313 Argentina submits that in this sunset review the USITC violated Article 3.4 of the Agreement
by failing to address some of the fifteen injury factors listed therein.
(ii) United States
7.314 Regarding Argentina's arguments under various paragraphs of Article 3, the United States
generally argues that Article 3 does not apply to sunset reviews. The United States nevertheless
submits that the violations alleged by Argentina with regard to Article 3.4 are groundless because the
USITC's determinations demonstrate that it did not act inconsistently with these provisions.
(b) Arguments of third parties
(i) European Communities
7.315 The European Communities agre es with Argentina that the provisions of Article 3 of the
Anti-Dumping Agreement apply mutatis mutandis in the context of sunset reviews. According to the
European Communities, given the introductory word ing of Article 3.1, the absence of an explicit
cross-reference in Article 11.3 to Article 3 is i rrelevant. The European Comm unities also agrees with
Argentina that the required standard in sunset determinations is “likely”, not “possible”. According to
the European Communities, in the instant sunset review the USITC did not apply the “likely” standard
correctly.
(ii) Japan
7.316 Japan argues that the provisions of Article 3 ap ply to injury determinations in sunset reviews
under Article 11.3. Therefore, the requirements of Artic les 3.1, 3.2, 3.4 and 3.5 have to be fulfilled in
such reviews.
(c) Evaluation and conclusion by the Panel
7.317 We note that Argentina's claim here is based sole ly on Article 3.4 of the Agreement. In line
with our above analysis regarding the applicability of Article 3 to sunset reviews (supra, paras. 7.268-
7.276), we decline Argentina's claim.

5. Alleged violation of Article 3.5 of the Agreement
(a) Arguments of parties
(i) Argentina
7.318 According to Argentina, the USITC failed to conduct the causal link analysis required under
Article 3.5 of the Agreement because it failed to inquire whether there would be other factors that
would also affect the domestic industry in the event of revocation of the anti-dumping duty.
(ii) United States
7.319 The United States generally argues that Article 3 does not apply to sunset reviews. The
United States nevertheless submits that the violations alleged by Argentina with regard to Article 3.5
are groundless because the USITC's determinations de monstrate that it did not act inconsistently with
these provisions.
(b) Arguments of third parties
(i) European Communities
7.320 The European Communities agre es with Argentina that the provisions of Article 3 of the
Anti-Dumping Agreement apply mutatis mutandis in the context of sunset reviews. According to the
European Communities, given the introductory word ing of Article 3.1, the absence of an explicit
cross-reference in Article 11.3 to Article 3 is i rrelevant. The European Comm unities also agrees with
Argentina that the required standard in sunset determinations is “likely”, not “possible”. According to
the European Communities, in the instant sunset review, the USITC did not correctly apply the
“likely” standard.
(ii) Japan
7.321 Japan argues that the provisions of Article 3 ap ply to injury determinations in sunset reviews
under Article 11.3. Therefore, the requirements of Artic les 3.1, 3.2, 3.4 and 3.5 have to be fulfilled in
such reviews.
(c) Evaluation and conclusion by the Panel
7.322 We note that Argentina's claim here is based sole ly on Article 3.5 of the Agreement. In line
with our above analysis regarding the applicability of Article 3 to sunset reviews (supra, paras. 7.268-
7.276), we decline Argentina's claim.
6. Cumulation
(a) Arguments of parties
(i) Argentina
7.323 Argentina argues that the USITC's use of the cumulation methodology in its sunset
determinations in the instant sunset review wa s inconsistent with Articles 11.3 and 3.3 of the
Agreement. According to Argentina, Article 3.3 li mits the use of cumulation to investigations.
Therefore, investigating authorities can not use cumula tion in sunset reviews. In the alternative,
Argentina argues that if cumulation can be used in sunset reviews, then the conditions set forth in
Article 3.3 regarding the use of cumulation must be fulfilled. In this case, since the USITC used
cumulation without respecting these conditions, it acted inconsistently with Articles 11.3 and 3.3.

Argentina also submits that the low "possibility" standard used by the USITC in order to resort to
cumulation also conflicted with the "likely" standard of Article 11.3. This is because in the absence
of cumulation, the USITC would not be able to find likelihood of continuation or recurrence of injury
with respect to Argentina. By using a low stan dard to resort to cumulation, the USITC also
disregarded the more general "likely" standard of Article 11.3.
(ii) United States
7.324 The United States submits that there is no provision in the Agreement that prohibits the use of
cumulation in sunset reviews. Therefore, WTO Members are generally free to use this methodology
in such reviews. According to the United States, the texts of Articles 3.3 and 5.8 of the Agreement
confirm that the numerical criteria set out in Article 3.3 of the Agreement regarding the use of
cumulation are limited to investigations and do not ex tend 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.
(b) Evaluation by the Panel
7.325 Argentina asserts in the first place that cumulation can not be used at all in sunset reviews. In
the alternative, Argentina submits that if the Ag reement does not disallow the use of cumulation in
sunset reviews, then the investigating authorities in sunset reviews have to take into account the
requirements of Article 3.3 where they decide to use cumulation.
7.326 Argentina argues that according to Article 3.3 cumulation can only be used in investigations.
Argentina bases its argument on the text of the Agreement and submits that there is no cross-reference
either in Article 11 or in Article 3.3 that would allow the use of cumulation in sunset reviews.
According to Argentina, the object and purpose of Article 11 or the other provisions of the Agreement
can not support the view that cumulation can be used in sunset reviews either.
7.327 We note that Article 31.1 of the Vienna Convention provides that a treaty should be
interpreted on the basis of its text, read in cont ext and in the light of its object and purpose. 145 With
that in mind, we turn once again to the text of Article 11.3, which provides:
Notwithstanding the provisions of paragraphs 1 and 2, any definitive anti-dumping
duty shall be terminated on a date not late r than five years from its imposition (or
from the date of the most r ecent review under paragraph 2 if that review has covered
both dumping and injury, or under this pa ragraph), unless the authorities determine,
in a review initiated before that date on their own initiative or upon a duly
substantiated request made by or on behalf of the domestic industry within a
reasonable period of time prior to that date, that the expiry of the duty would be likely
to lead to continuation or recurrence of dumping and injury.
22 The duty may remain
in force pending the outcome of such a review.
Article 3.2 of the DSU, reads as follows:
"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."
(1969) 8 International Legal Materials 679.

that no duty is to be levied shall not by itself require the authorities to terminate the
definitive duty.
7.328 The text of Article 11.3 does not mention whether cumulation can or can not be used in sunset
reviews. Nor can one find any direct guidance on this matter in the other provisions of the
Agreement. Unlike the cross-references in Article s 11.4 and 12.3 that make certain provisions of
Articles 6 and 12, respectively, applicable in the c ontext of sunset reviews, no such cross-reference
can be found to shed light on the issue of whether or not cumulation can be used in sunset reviews.
7.329 Article 3.3 of the 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 Article 5 and the volume of imports from each country is
not negligible and (b) a cumulative assessment of the effects of the imports is
appropriate in light of the conditions of competition between the imported products
and the conditions of competition between the imported products and the like
domestic product.
7.330 We note that Article 3.3 does not answer th e question of whether cumulation is allowed
generally throughout the Anti-Dumping Agreement. It sets forth certain conditions for the use of
cumulation. Parties, however, disagree as to whet her these conditions are limited to investigations, or
whether they also apply to sunset reviews.
7.331 The first issue therefore is whether the lack of clear language specifically allowing the use of
cumulation in sunset reviews means that it can not be used in such reviews. Put differently, the issue
is whether Article 3.3 is an authorization for cu mulation or whether it establishes conditions for the
use of cumulation in investigations. If Article 3.3 were considered as authorizing cumulation, it might
be concluded that it is only allowed under the circumstances described therein, i.e. it can not be used
in sunset reviews. If, however, Article 3.3 were considered as a provision that establishes conditions
for the use of cumulation in inves tigations, then it might be conclu ded that cumulation is generally
permitted, including in sunset reviews, but is subject to certain restraints in investigations, as set out in
Article 3.3. In this case, cumulation in sunset reviews would not be inconsistent with the Agreement.
7.332 We interpret the lack of a clear provision in the Agreement as to whether cumulation is
generally allowed to mean that cumulation is permitted in sunset reviews.
7.333 We note, in addition, that all paragraphs of Ar ticle 3 of the Agreement, except paragraph 3,
contain the term "dumped imports".
146 The same term can also be found in other instances such as in
Articles 4.1, 5.2, 5.8, 8.5, 10.2 and 10.6 of the Agreement. In our view, the use of "dumped imports"
without any specification of the country in which these imports originate, such as "dumped imports
originating in an exporting country" or a similar limiting language, suggests that the drafters foresaw
that the investigating authorities would generally ba se their injury determinations on dumped imports
from all countries subject to the investigation. It follows that the Agreement generally allows the use
of cumulation and that Article 3.3 is not an auth orization for cumulation. Rather, it sets out the
conditions that must be fulfilled when cumulation is used in investigations.

146 Paragraph 3 of Article 3 contains the phrase "imports of a product from more than one country". In
our view, the reason why Article 3.3, unlike other paragraphs of Article 3, does not mention "dumped imports"
is because it is designed to set out what needs to be done before cumulation can be used in investigations. It is
therefore bound to mention imports from more than one country.

7.334 Argentina argues that the use of the word "duty" in the singular, as opposed to the plural, in
Articles 11.1 and 11.3 indicates the drafters' inte ntion not to allow cumulation in sunset reviews. 147
Argentina has not, however, specified precisely why the use of "duty" in the singular had to be
interpreted as precluding cumulation in sunset revi ews. We understand Argentina to argue that had
drafters intended to allow cumulation in sunset reviews, they would have used the word "duties"
instead of "duty". We find it difficult to agree with a view that attempts to derive such a far-reaching
substantive meaning from the use of a word in the singular rather than the plural, or vice versa. We
note, for instance, that the title of Article 11 contai ns the word "duties" and not "duty". This, in our
view, further indicates that the drafters did not intend to convey their message as to the use of
cumulation in sunset reviews by the use of the word "duty" in the singular or the plural. Had they had
such an intention they would have done it clearly. We therefore decline to accept Argentina's
argument in this regard.
7.335 Having concluded that cumulation is generally allowed throughout the Agreement, including
sunset reviews, the next issue we have to addre ss is whether the conditions for the use of cumulation
set out in Article 3.3 also apply to sunset reviews. Argentina conte nds that if the Panel finds that
cumulation is allowed in sunset reviews, then it s hould also find that the conditions of Article 3.3
regarding the use of cumulation apply to sunset reviews. We disagree.
7.336 We note that paragraph 3 of Article 3 is the only paragraph that contains the word
"investigation" under Article 3. In our view, therefor e, by its own terms Article 3.3 limits its scope of
application to investigations. In this respect, we no te that this particular issue was also raised in US –
Corrosion-Resistant Steel Sunset Review and that panel opined:
As stated above, even if the provisions of Article 3, including the definition of injury
in footnote 9, are generall y applicable throughout the Anti-Dumping Agreement ,
paragraph 3 of Article 3 is ex ceptional, in that it alone explicitly refers to the term
"investigations". Nowhere else in the text of any other paragraph of Article 3 is the
word "investigation" mentioned. Therefore we are of the view that Article 3.3, by its
own terms, is limited in application to investigations and does not apply to sunset
reviews. It follows that the cross-reference in Article 3.3 to the negligibility standard
in Article 5.8 does not apply to sunset reviews.
148
We agree with this view, and therefore find that th e conditions set forth in Article 3.3 do not apply in
sunset reviews.
7.337 Finally, we note Argentina's argument that the low standard applied by the USITC in its
recourse to cumulation in this sunset review also co nflicted with the "likely" standard of Article 11.3.
We note that Argentina challenged the standard applied by the USITC in the instant sunset review as a
separate claim under which it raised detailed argument s. In our view, therefore, it is not proper to
interpret Article 3.3 of the Agreement in a manner that would create extra substantive obligations for
investigating authorities in terms of the standard they apply in thei r substantive determinations in
sunset reviews.
(i) Conclusion
7.338 We therefore reject Argentina's claim that th e USITC acted inconsistently with Articles 3.3
and 11.3 of the Agreement in its use of cumulation in the instant sunset review.

147 First Written Submission of Argentina, para. 282; Second Written Submission of Argentina,
para. 189.
148 Panel Report, US – Corrosion-Resistant Steel Sunset Review, supra, note 121, para. 7.102.

F. C
ONSEQUENTIAL CLAIMS UNDER THE ANTI-DUMPING AGREEMENT, THE WTO AGREEMENT
AND THE GATT
1. Arguments of Parties
(a) Argentina
7.339 Argentina submits that US law as such and as applied in this sunset review also violated
Articles 1, 18.1 and 18.4 of the Anti-Dumping Ag reement, Article XVI:4 of the WTO Agreement and
Article VI of the GATT 1994.
7.340 Argentina is submitting these clai ms as consequential claims. In other words, in Argentina's
view, any violation of the Agreement would also lead to the violation of one or more of these
provisions.149
(b) United States
7.341 The United States argues that since the measures identified by Argentina with regard to its
substantive claims are not WTO-inconsistent, there may be no consequential violations of the kind
alleged by Argentina.
2. Evaluation and conclusion by the Panel
7.342 We note that the only basis for Argentina's cons equential claims flows out of a violation with
regard to Argentina's substantive claims raised in these proceedings. Therefore, addressing these
consequential claims will provide no further guidance in terms of the implementation of our findings.
We therefore exercise judicial economy with respect to Argentina's consequential claims and do not
make any ruling on them.
VIII. CONCLUSIONS AND RECOMMENDATIONS
8.1 In conclusion, we find that:
(a) In respect of waiver provisions of US law:
(i) The provisions of Section 751(c)(4)(B) of the Tariff Act relating to
affirmative waivers are inconsistent with the investigating authorities'
obligation to determine likelihood of continuation or recurrence of dumping
under Article 11.3 of the Anti-Dumping Agreement,
(ii) The provisions of Section 351.218(d )(2)(iii) of the USDOC's Regulations
relating to deemed waivers are inconsistent with the investigating authorities'
obligation to determine likelihood of continuation or recurrence of dumping
under Article 11.3 of the Anti-Dumping Agreement,
(iii) The provisions of Section 351.218(d )(2)(iii) of the USDOC's Regulations
relating to deemed waivers are inconsistent with Articles 6.1 and 6.2 of the
Anti-Dumping Agreement,
(b) In respect of the alleged irrefutable pr esumption of likelihood under US law, the
provisions of Section II.A.3 of the SPB are as such inconsistent with the investigating

149 We note that the title of Section V in which Argentina presented these claims in its second written
submission reads "Consequential Violations Under Article VI of the GATT 1994, Articles 1 and 18 of the
Antidumping Agreement, and Article XVI:4 of the WTO Agreement".

authorities' obligation to determine likelih ood of continuation or recurrence of
dumping under Article 11.3 of the Agreement,
(c) In respect of US law's standard for the likelihood of continuation or recurrence of
injury determinations in sunset reviews, Sections 752(a)(1) and (5) of the Tariff Act
are not inconsistent with Article 11.3 of the Anti-Dumping Agreement,
(d) In respect of the USDOC's determinations in the OCTG sunset review:
(i) The USDOC acted inconsistently with Articles 11.3 and 6.2 of the Anti-
Dumping Agreement,
(ii) The USDOC did not act inconsistently with Articles 12, 6.1, 6.8 and Annex II
of the Anti-Dumping Agreement,
(e) In respect of the USITC's determinations in the OCTG sunset review:
(i) The USITC did not act inconsistently w ith Article 11.3 of the Anti-Dumping
Agreement in its application of Sections 752(a)(1) and (5) of the Tariff Act,
(ii) The USITC did not act inconsistently w ith Article 11.3 of the Anti-Dumping
Agreement in respect of its determinations relating to the likely volume of
dumped imports, their likely price effect and their likely impact on the US
domestic industry,
(iii) The USITC did not act inconsistently with Articles 11.3 and 3.3 of the Anti-
Dumping Agreement in its use of cumulation.
8.2 Under Article 3.8 of the DSU, in cases where there is an infringement of the obligations
assumed under a covered agreemen t, 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 Anti-Dumping Agreement,
it has nullified or impaired benefits accruing to Argentina under that agre ement. We therefore
recommend that the Dispute Settlement Body reque st the United States to bring its measures
mentioned in paragraph 8. 1(a)(i), (ii), (iii), 8.1(b) and 8.1(d) (i) above into conformity with its
obligations under the WTO Agreement.
8.3 Argentina requests that the Panel suggest that the United States bring its measures into
conformity with its WTO obligations by revoking the anti-dumping order and repealing or amending
the laws and regulations at issue.
8.4 The United States has not made a specific argu ment regarding this claim of Argentina. The
United States requests the Panel to reject Argentina's claims in their totality.

8.5 We note that Article 19.1 of the DSU states that WTO panels may suggest ways the Member
concerned could implement their recommendations.
150 In the circumstances of the present
proceedings, however, we see no particular reason to make such a suggestion and therefore decline
Argentina's request.

Where a panel or the Appellate Body concludes that a measure is inconsistent with a covered
agreement, it shall recommend that the Member concerned bring the measure into conformity
with that agreement. In addition to its recommendations, the panel or Appellate Body may
suggest ways in which the Member concerned could implement the recommendations.
(footnotes omitted).