Document: WT/DS331/R Page A-1 ANNEX A SUBMISSIONS OF GUATEMALA Table of contents Page Annex A-1 First Written Submission of  Guatemala – 7 July 2006 A-2 Annex A-2 First Written Submission of Mexico – 16 August 2006 A-14
Date: 7 July 2006
Document codes: WT/DS331/R
Complainant: Guatemala
Respondent: Mexico
Third parties: China, EU, Honduras, Japan, U.S.
Dispute stage: Panel
Agreements cited: Art. 5.2, 5.3, 5.8, 2.1, 2.4, 2.6, 3.1, 3.2, 3.4, 3.5, 3.6, 4.1, 5.4, 6.4, 6.9, 9.1, 9.3, 18.1, 6.6, 6.8, 6.13, 6.7, 6.7, 2.2, 6.2, 12.2, 6.5  Anti-dumpingArt. VI  GATT 1994Art. 1, 18.1  Anti-dumping

Page

G. CLAIMS RELATING TO PROCEDURAL ASPECTS 11
1. Economía failed to inform the Exporter of the essential facts under
consideration, contrary to Article 6.9 and Annex II, paragraph 6 of the Anti-
Dumping Agreement 11
2. The disclosure of Economía's findings and conclusions in its Preliminary and
Final Resolutions is inconsistent with the provisions of Article 12.2 of the Anti-
Dumping Agreement 12

3. Economía afforded confidential treatment to information from the Applicant
notwithstanding failure to show good cause or to furnish non-confidential
summaries, in violation of Article 6.5 of the Anti-Dumping Agreement 12
IV. REASONS FOR REQUESTING SUGGESTIONS CONCERNING
IMPLEMENTATION OF POSSIBLE RULINGS AND
RECOMMENDATIONS BY THE PANEL 13

V. REQUEST FOR RULINGS AND RECOMMENDATIONS 13

I. INTRODUCTION
1. This dispute between Guatemala and Mexico re lates to the investigation of and definitive
anti-dumping duties imposed on imports of steel pipes and tubes originating in Guatemala, classified
under tariff items 7306.30.01 and 7306.30.99 of the Tariff established under the General Import and
Export Duty Law ("TIGI") of Mexico. Guatemala considers that the anti-dumping duties in question
and various aspects of the investigation leading to their imposition are inconsistent with various
provisions of the Anti-Dumping Agreement, in particular Articles 1, 2.1, 2.2, 2.4, 2.6, 3.1, 3.2, 3.4,
3.5, 4.1, 5.2, 5.3, 5.4, 5.8, 6.2, 6.4, 6.5, 6.7, 6.8, 6.9, 6.13, 12.2, 18.1 and Annex II thereof.
II. FACTUAL BACKGROUND
2. Mexico's domestic industry for steel pipes and tubes, as identified by the Mexican Ministry of
the Economy ("Economía"), was made up of four ente rprises. The application for an investigation
was submitted by one of them (the "Applicant") on 22 May 2001, with the support of two others, and
made allegations against only one Guatemalan exporter (the "Exporter").
3. The applicant defined the product under consideration as standard galvanized pipes and tubes
and standard black pipes and tubes, produced under manufacturing standard ASTM A53, from hot-
rolled sheet , of ½ to 4 inches in diameter, which were importe d under tariff items 7306.30.01 and
7306.30.99, respectively, of the Mexican tariff classi fication. The Applicant also stated that, in
addition to the product investigated, galvanized structural pipes and tubes and conduit-type pipes and
tubes were also imported under tariff item 7306.30.01, as were black structural pipes and tubes under
tariff item 7306.30.99, thereby implying that such pipes and tubes were excluded from the
investigation.
4. The Applicant indicated that the dumping investigation period was from 1 July to
31 December 2000 and the injury analysis period from 1 January 1998 to 31 December 2000.
5. In its Initiating Resolution, Economía accepte d without any comment the relevant product
definition, the evidence of normal value and the i nvestigation period proposed by the Applicant.
Moreover, neither the Applicant nor Economía had in its possession evidence serving to distinguish
the product under consideration from the one that wa s not being investigated for the purposes of the
import volume analysis.
6. Subsequently, in its Preliminary Resolution, Ec onomía changed the definition of the product
under consideration, adding thereto standard (galvani zed and black) pipes and tubes of more than 4 to
6 inches in diameter, without providing any justification or requiring the Exporter to submit additional
information on the pipes and tubes thus included. In the Preliminary Resolution, Economía also
determined the existence of margins of price discr imination by the Exporter of 3.41 per cent in the
case of galvanized standard pipes and tubes and of 12.82 per cent in the case of black standard pipes
and tubes.
7. During the verification visit to the Exporter's facilities, staff of the enterprise provided access
to and disclosed all the information required by Ec onomía. There is nothing in the record to indicate
that the enterprise placed any obstacles in the way of the verification of information. The Exporter
also explained to Economía that it had detected some errors in the information supplied prior to the
visit and accordingly provided it with corrected info rmation, so that those shortcomings could be
remedied and the corrected information could be verified. Moreover, Economía found that some of
the information previously provided by the Exporter exhibited "insignificant discrepancies", such as
information relating to sales, evidence of comple teness of reported figures, indirect labour and
indirect manufacturing costs. Economía also found discrepancies with the information reported by
the Exporter in respect of freight, physical di fferences and credit notes, and for this reason the
Exporter made fresh calculations and supplied the information required by Economía.

8. At the public hearing, the Applicant for the firs t time clearly stated its intention to include
structural (black and galvanized) pipes and tubes with in the scope of the investigation. Subsequently,
Economía called on both the Applicant and the Exporter to submit "justifications" for the inclusion or
non-inclusion of structural pipes and tubes within the scope of the investigation. It did not require
either of the parties to submit information on prices in relation to pipes and tubes of this type. Their
responses were to be presented even after the dead line for the submission of final arguments and after
the lapse of the period for the submission of evidence in the investigation.
9. In its Final Resolution, Economía made a determ ination of dumping on the basis of the facts
available, inasmuch as it disregarded all the inform ation supplied by the Exporter, alleging that it was
incomplete, inaccurate and/or not drawn from the accounting records of the enterprise. As a
consequence, Economía based its determination of normal value for standard galvanized pipes and
tubes on a single sales invoice from a Guatemalan enterprise different from the Exporter, and for
standard black pipes and tubes on a single quotatio n by a Guatemalan enterprise presumably different
from the Exporter.
10. For its injury determination, Economía u sed outdated and incomplete information
corresponding to an investigation period which did not end as close as possible to the initiation of the
investigation, and referred solely to six-month periods within each of the years analysed. Economía
also made selective use of information from subset s of the domestic industry for its analysis of a
number of injury factors. Economía failed to expl ain how the selective use of that information could
constitute positive evidence for an objective examina tion of the effect of the dumped imports on the
state of the domestic industry. On the basis of its analysis, Economía concluded that the dumped
imports caused injury to the domestic industry.
11. Thus, Economía imposed a definitive anti-dumpi ng duty of 25.87 per cent on imports of
carbon steel pipes and tubes, with longitudinal seams, both galvanized and black, in the range of ½ to
6 inches in diameter. Economía makes no reference to "standard pipes and tubes", "conduit pipes and
tubes", the raw material (hot-rolled sheet) or the manufacturing standard (ASTM A53 or BS 1387) in
order to define the scope of the definitive measure, so that it could include any type of seamed steel
pipes and tubes, whether black or galvanized, that come within the specified range.
III. LEGAL BASIS
A. S
TANDARD OF REVIEW
12. Article 11 of the DSU and Article 17.6 of the Anti-Dumping Agreement preclude the
possibility for a panel to conduct a de novo review of the anti-dumping investigation or simply to
endorse the conclusions of the national authority. Accordingly, the Panel must base its report on "the
information contained in the record and the explanations given by the authority in " its published
report"; it cannot rely on ex post explanations provided by Economía regarding its actions. Similarly,
Article 17.6(i) of the Anti-Dumping Agreement requi res panels to confine themselves to examining
the manner of the investigating authority's "establishm ent" of the facts and to determining whether its
evaluation of those facts was "unbiased and objective".
B. CLAIMS RELATING TO THE INITIATION OF THE INVESTIGATION
1. Mexico initiated the investigation without su fficient evidence of dumping and injury, in
violation of Articles 5.2, 5.3 and 5.8 of the Anti-Dumping Agreement
13. The application in this case lacked sufficient evidence of dumping. In order to prove the
normal value of standard galvanized pipes and tubes and standard black pipes and tubes, the
Applicant presented an invoice and a price quotation, respectively. Both documents were issued by
enterprises other than the single exporter under investig ation, and they refer to two separate types of

product covered by the definition of the product u nder consideration. Moreover, these documents
were used to compare an individual transacti on with average prices over an entire period of
investigation, and this is not e nough to substantiate a dumping allegation. The only document that
substantiated the normal value for all standard bl ack pipes and tubes (the quotation) refers to a
potential sale and contains no information on the prices at which the product in question is sold, in
accordance with the provisions of Article 5.2(iii).
14. Nor did the application contain adequate and accurate information on the volume of imports
of the product under consideration. The Applicant acknowledged that it did not have this information,
and Economía made the unsupp orted and unexplained assumption that the information on all the
products imported under the tariff items in questi on could be representative of the information on
imports of the product under consideration (a subset of products under the tariff items concerned).
15. Consequently, the application did not satisfy the requirements of Article 5.2 of the Anti-
Dumping Agreement. Moreover, Economía failed to prove the insufficiency of the evidence
submitted by the Applicant, just as it failed to ma ke any effort to establis h that the evidence in
question contained accurate information. It simp ly accepted the evidence and failed to evaluate its
accuracy or relevance, in violation of Article 5. 3 of the Anti-Dumping Agreement. Thus, by not
rejecting the application and terminating the inv estigation promptly as soon as it was satisfied that
there was not sufficient evidence of dumping or in jury to justify the investigation procedure,
Economía acted in a manner inconsistent with Article 5.8 of the Anti-Dumping Agreement.
C. C
LAIMS RELATING TO THE PRODUCT UNDER CONSIDERATION/LIKE PRODUCT
1. Economía changed the definition of the product under consideration to include products
not subject to investigation, and this result ed in the imposition of definitive anti-
dumping duties in violation of Articles 1, 2.1, 2.4, 2.6, 3.1, 3.2, 3.4, 3.5, 4.1, 5.4, 6.4, 6.9
and 18.1 of the Anti-Dumping Agreement
16. While Article 2.6 of the Anti-Dumping Agreement refers to the concept of "like product", the
Anti-Dumping Agreement contains no definition or specific guidelines for the definition of the
"product under consideration". Presumably, how ever, an applicant and, more especially, the
investigating authority should define the product under consideration on the basis of the product
which is allegedly dumped within the meaning of Article 2 and which is causing or threatening to
cause injury, within the meaning of Article 3, to the domestic industry defined under Article 4.
Clearly, the way in which the investigating authority defines the product under consideration at the
beginning of the investigation is highly important for conferring legitimacy on the process as a whole,
and any subsequent change to that definition may have implications for every aspect of the
investigation and for the possible imposition of anti-dumping duties. Guatemala would point out that
it does not maintain that an investigating authority, in the course of an investigation, is not entitled to
make minor clarifications necessary to the defin ition of the product under c onsideration. Rather,
Guatemala maintains that, in doing so, the author ities must comply with all the relevant legal
formalities provided for in the Anti-Dumping Agreement, and in particular, that they must rely on
positive evidence and on an objective and unbiased evaluation of that evidence.
17. In US – Softwood Lumber V , the Panel stated that it was obvi ous that there must be identity
between the product subject to the anti-dumping duty and the product in respect of which
determinations of dumping and in jury are made. Moreover, as mentioned above, the Panel, in
assessing this claim, must determine whether Econom ía's establishment of the facts was proper and
whether its evaluation thereof was unbiased and objective.
18. Economía made two significant changes to the de finition of the product under consideration.
The first change was made by means of the Preliminary Resolution and consisted in the addition of
standard pipes and tubes of more than four to six inches in diameter. The second change was

introduced by the Final Resolution which, in addition to standard pipes and tubes, included galvanized
structural pipes and tubes and black structural pipes and tubes , of ½ to six inches in diameter. The
products added by each change in the definition of the product under considera tion had initially been
excluded from investigation by Economía, and at no point in the investigation did Economía require
information from the Exporter on these additional produc ts, particularly for calculating the margin of
dumping.
19. The situation described in the preceding paragraph led Economía not to base its dumping
determination on the product as a whole, in accordance with Artic le 2.1 of the Anti-Dumping
Agreement, as confirmed by the A ppellate Body in its jurisprudence. Moreover, as the Exporter had
no information on these products, Economía could not ha ve carried out a proper analysis in respect of
the export price or normal value. Thus, Economía's determination could not be consistent with the
provisions of Article 2.2 of the Anti-Dumping Agreement concerning the establishment of normal
value and Article 2.4 of the same Agreement, wh ich requires a fair comparison between the export
price and the normal value.
20. Furthermore, as it had no information on the additional products, Ec onomía could not have
conducted an investigation based on positive evidence and an objective examination of dumping,
injury and causation in respect of the product under inv estigation, in violation of Articles 3.1, 3.2, 3.4
and 3.5 of the Anti-Dumping Agreement.
21. Guatemala considers that Economía had the idea of including structural pipes and tubes
within the definition of the product under consideration as a result of the discussion held during the
public hearing in the investigation, on the same day that marked the end of the period for the
submission of evidence. Nevertheless, Economía simultaneously required information from the
Applicant and the Exporter on the "arguments" in support of the inclusion or non-inclusion of
structural pipes and tubes. At no time did Economía give the Exporter or any other interested party an
opportunity to prepare presentations, in accordance with Article 6.4, in respect of this new
information, and in fact, Economía did not even i ndicate that the inclusion of structural pipes and
tubes was one of the "essential facts" under consid eration which formed the basis for the decision to
apply definitive measures. Thus, Economía co ntravened not only Article 6.4 but also the
requirements of Article 6.9 of the Anti-Dumping Ag reement. Moreover, inasmuch as Articles 1 and
18.1 of the Anti-Dumping Agreement provide that anti-dumping measures may be applied only if they
are consistent with the Agreement, these provisi ons have also been breached as a result of the
violations referred to above.
22. In the light of the foregoing, Economía acted incons istently with Articles 1, 2.1, 2.4, 2.6, 3.1,
3.2, 3.4, 3.5, 4.1, 5.4, 6.4, 6.9 and 18.1 of the Anti-Dumping Agreement.
D. C
LAIMS RELATING TO DUMPING
1. Mexico's use of the facts available is inconsistent with Articles 6.2, 6.4, 6.7, 6.8, 6.9, 6.13
and Annex II of the Anti-Dumping Agreement
23. Article 6.8 allows the investigating authorit y to disregard information provided by the
exporter and to rely on the facts available in three ci rcumstances: when an interested party (a) refuses
access to necessary information; (b) fails to provide information within a reasonable period of time;
or (c) significantly impedes the investigation. A nnex II provides that the investigating authority may
not reject information which (a) is verifiable, is a ppropriately submitted so that it can be used in the
investigation without undue difficulties, is supplie d in a timely fashion and, where applicable,
supplied in a medium or computer language requested by the authorities (paragraph 3), or which
(b), although not ideal in all respects, has been provided by the interested party to the best of its ability
(paragraph 5).

24. In addition, paragraph 6 of Annex II provides that , if evidence or information is not accepted,
the supplying party should be informed forthwith of the reasons therefor, and should have an
opportunity to provide further explanations with in a reasonable period. Finally, according to
paragraph 7 of the same Annex, if the information is rejected and the authorities have to rely on
information from a secondary source, including th e information supplied in the application for the
initiation of the investigation, they should use that information with special circumspection.
25. In the investigation at issue, the Exporter presented all the information requested of it by
Economía and maintained a cooperative attitude th roughout the investigation. Nothing in the
administrative record indicates ot herwise. Despite this, Economía rejected all the information from
the Exporter. Thus, instead of relying on information from a primary source, Economía calculated the
margin entirely on the basis of the facts available, which in this case rested on the insufficient and
inaccurate information presented by the Applicant for the purpose of initiating the investigation.
26. The reasons adduced by Economía for using the facts available are mentioned in paragraph 80
of the Final Resolution. They are incorrect and ar e at variance with the facts on record in the public
investigation file, which shows that the Exporter corrected the information in which Economía had
found certain errors. Economía checked the new info rmation presented by the Exporter, and when it
found it to be correct, indicated that it would use it in place of the incorrect information. Economía
did not do so.
27. Moreover, although the results of the verifica tion visit point to discrepancies between the
information reported and that which was verified in relation to physical differences, assuming these
discrepancies to exist, there would be no justifia ble grounds for rejecting all the information provided
by the Exporter. In fact, Economía failed to explain how the inadequacy of the information relating to
physical differences made it impossible for it to use the remainder of the information which it had
verified and which was not affected by the inform ation rejected, in accordance with paragraphs 3 and
5 of Annex II to the Anti-Dumping Agreement.
28. Furthermore, in the event that Economía's reasons for rejec ting some of the information
provided by the Exporter were justified, Economía had no grounds for disregarding all the
information from the Exporter, particularly such information as satisfied the requirements of
paragraph 3 of Annex II to the Anti-Dumping Agreem ent, and the use of which was not affected by
the rejection of any other type of information. In addition, Economía does not properly explain how it
complied with paragraph 5 of Annex II to the An ti-Dumping Agreement, specifically as regards how,
even though the information provided might not have been ideal in all respects, this could have
provided justification for Economía to disregard it entirely, despite the fact that the Exporter had acted
to the best of its ability.
29. Economía's decision to rely on the facts available was not made known until the Final
Resolution was published. Thus, it was not during the course of the investigation, but at the end
thereof, that Economía satisfied itself as to the accuracy of the information presented by the parties, in
violation of Article 6.6 of the Anti-Dumping Agre ement. Moreover, by making that determination
only in the Final Resolution, Economía gave the Exporter no opportunity to provide further
explanations within a reasonable period, in violatio n of Article 6.8 and paragraph 6 of Annex II to the
Anti-Dumping Agreement.
30.
Furthermore, Economía simply used as facts available the information supplied by the
Applicant in relation to dumping margins, and made no attempt to examine the Applicant's
information in order to assess whether it was the most fitting or appropriate for making determinations
with regard to the Exporter. For these reasons, Econom ía's use of the facts available was inconsistent
with paragraph 7 of Annex II to the Anti-Dumping Agreement.

31. Because Economía took the decision to use the facts available at the time of concluding the
process, the Exporter was also deprived of any opportuni ty to review all of the information relevant to
the presentation of its case, to prepare presentations on the basis of such information, and to defend its
interests. This is inconsistent with the provi sions of Articles 6.2 and 6.4 of the Anti-Dumping
Agreement.
32. Economía also failed to make the results of th e investigation available to the Exporter, and
thus acted in a manner inconsistent with Articles 6.7 and 6.9 of the Anti-Dumping Agreement. In
addition, it should be mentioned that Economía al so failed to comply with the provisions of
Article 6.13 of the Anti-Dumping Agreement. For example, if Economía knew that the Exporter had
experienced difficulties in allocating production co sts for its own product codes, Economía should
have cooperated with the Exporter in order to develop a system acceptable (to Economía), so that such
costs could be appropriately allocated. For all of the above reasons, the dumping margin was also
calculated in a manner inconsistent with Articles 2.1 and 2.4 of the Anti-Dumping Agreement.
E. C
LAIMS RELATING TO INJURY
1. Economía's use of the outdated investigat ion period proposed by the Applicant is
inconsistent with Articles 3.1, 3.2, 3.4 and 3.5 of the Anti-Dumping Agreement
33. In accordance with Article 3.1 of the Anti-Dump ing Agreement, a determination of injury
must be based on an objective examination of positiv e evidence, and in this connection, the choice of
the investigation period determines the data that will form the basis for the assessment of dumping,
injury and the causal link. Moreover, anti-dumping m easures must be designed to offset or prevent
dumping that is currently causing injury to the domestic industry. Thus, in order to arrive at an
objective determination of current injury or threat of injury to the domestic industry, the investigation
period must be the most recent period possible.
34. However, in this case, Economía used for its investigation the period on which the Applicant's
claims of dumping and injury were based, with no re view of the relevance of that period. In the
circumstances, the investigation period was not the one as close as practicable to the date of initiation
of the investigation, and was too remote to provi de relevant, pertinent, reliable and trustworthy
information as a potential basis for an objective exam ination of injury. Before using that period,
Economía should have considered whether it was appropr iate to use such a remote period, whether it
was appropriate to use the period proposed by the Applicant and whether it was possible to update the
period. Moreover, Economía could have obtained data for the six-month period ending in June 2001.
However, Economía in this case made the same mistakes as in Mexico – Anti-Dumping Measures on
Beef and Rice, and for the same reasons the use of the inv estigation period in qu estion is inconsistent
with Articles 3.1, 3.2, 3.4 and 3.5 of the Anti-Dumping Agreement.
2. Economía limited its injury analysis to data relating to six-month periods in each year
under consideration in violation of Articles 3.1, 3.2, 3.4 and 3.5 of the Anti-Dumping
Agreement
35. Article 3.1 of the Anti-Dumping Agreement require s that a determination of injury should be
based on positive evidence and should involve an objective examination. In Mexico – Anti-Dumping
Measures on Beef and Rice , the Appellate Body upheld the Panel's finding that the selective use of
periods within each year of investigation does not constitute an objective examination within the
meaning of Article 3.1, unless the investigating aut hority provides justification for such use. In the
present case, Economía established that the period of investigation was the period between July and
December 2000. For the purposes of the injury inv estigation, Economía received information for six-
month periods from July to December of each of the three years from 1998 to 2000, and made no
attempt to compile information for the six-month periods from January to June of each of those years.

36. At the same time, Economía was aware of the fact that the consumption of pipes and tubes in
the domestic market had been subject to some fluc tuations in certain months owing to taxes.
According to the Appellate Body's interpretation, the selective use of data for only one part of the
year, covering the greatest import activity, or for different periods, is prima facie evidence that the use
of data by the investigating authority does not provide an unbiased and accurate overview of the
effects of allegedly dumped imports, the state of th e domestic industry, or the causal link between the
two.
37. Moreover, Economía received full-year informati on from the Applicant in respect of certain
factors, so that it used six-month periods as a basis for its analysis in some cases, and twelve-month
periods in others. Thus, Economía's use of data on different periods for the domestic industry and the
Exporter constitutes a further lack of objectivity in it s injury analysis. Consequently, Economía acted
in a manner inconsistent with Articles 3.1, 3.2, 3.4 and 3.5 of the Anti-Dumping Agreement.
3. Economía's selective use of information relatin g to the state of the domestic industry is
inconsistent with Articles 3.1, 3.2, 3.4, 3.5 and 4.1 of the Anti-Dumping Agreement
38. In principle, once the domestic industry has been defined, that definition must be used for the
determination of injury carried out under Article 3, which must be based on a coherent review of the
information relating to the domestic industry as a w hole. A "sectoral" review of injury may be
permissible only if the investigating authorities prov ide justification as to the reasons why it is not
necessary to examine the domestic industry as a whole. Consequently, in the absence of such
justification, the injury determination must relate to the domestic industry as a whole.
39. In this case, Economía examined various factors of injury based on different sets of
information from different companies or combina tions of companies within the domestic industry,
without providing an explanation of the need to pr oceed in this manner. The domestic industry was
defined as comprising four Mexican companies. However, Economía compiled information from
only three of them, and for its analysis of certain factors of injury it used only information from the
Applicant (among other combinations of different sets of information). This selective use of evidence
cannot contribute to an objective examination of injury based on positive evidence, in accordance
with Article 3.1 of the Anti-Dumping Agreement. In addition to the violation of Article 3.1,
Articles 3.2, 3.4, 3.5 and 4.1 of the Anti-Dumping Agreement are also violated by extension.
4. The analysis of the volume of the dumped im ports and the effect of the dumped imports
on prices in the domestic market for like pro ducts is inconsistent with Articles 3.1 and
3.2 of the Anti-Dumping Agreement
40. The Panel in Mexico – Anti-Dumping Measures on Beef and Rice found that the way in which
the investigating authorities established trends in the volume of imports under Article 3.2 of the Anti-
Dumping Agreement was inappropriate, inasmuch as their determination had been based on
unjustified hypotheses instead of positive evidence. In particular, in view of the fact that the dumped
imports were classified under the same tariff head ing as other products, Economía determined the
volume of dumped imports by assuming that all imports that fell within a particular price range
(which in principle characterized the product in question) were imports of the product under
consideration. The Panel made it clear that "[it did] not wish to imply by this that an authority is
never allowed to complete its analysis by drawi ng certain inferences, provided it offers a well
reasoned explanation".
41. In the present case, Economía based its analysis of imports from sources other than
Guatemala on a limited sample of half-year impor ts, even though it had ample access to information
possessed by the Mexican Government on all imports. On the basis of this sample, Economía used
unsubstantiated assumptions to determine the volum e and value of the investigated products from
sources other than Guatemala.

42. Economía proceeded as follows in this respec t: it compiled the Mexican Trade Information
System (SICMEX), containing information on a total of 673 import declarations ( pedimentos) from
countries not investigated for three different si x-month periods from July to December, which
constituted the period of investigation. These declarations covered 10, 16 and 48 per cent,
respectively, of total imports for each of the year s from 1998 to 2000. On the basis of this limited
number of declarations, Economía established a range of minimum and maximum prices for the
product under consideration. In the light of this price range, Economía apparently identified all the
imports under SICMEX that came within the range.
43. If Economía had access to 100 per cent of imports from Guatemala, it could also have had
access to 100 per cent of imports from countries not inv estigated, and it is therefore inappropriate for
Economía to have used a price range to determin e subject products from different sources, while for
the analysis of imports from Guatemala subject prod ucts were determined according to whether they
were covered by import declarations and related commercial documents.
44. Consequently, taking into account the fact that imports from non-investigated sources
constitute one of the components of domestic c onsumption, Economía's de termination of domestic
consumption is imprecise and, furthermore, its assessment as to whether there had been an increase in
dumped imports relative to consumption in the impo rting Member is inconsistent with Articles 3.1
and 3.2 of the Anti-Dumping Agreement.
F. C
LAIMS RELATING TO CAUSATION
1. Economía failed to analyse or verify the no n-attribution of injury to the domestic
industry caused by other known factors, in violation of Articles 3.1, 3.2, 3.4 and 3.5 of
the Anti-Dumping Agreement
45. Economía failed properly to examine factors other th an the subject imports which at the same
time were injuring the domestic industry. In pa rticular, Economía failed to take account of the
following factors:
(a) The decline in the Applicant's operating prof its during the period of investigation,
primarily as a result of an increase in costs, which was not explained in detail in
Economía's determinations;
(b) the decline in exports by the domestic industry during the period of investigation,
with a posted reduction of at least four pe r cent in domestic industry output, was not
explained by Economía as another determining factor of injury.
46. Furthermore, Economía failed to carry out any an alysis to ensure that the injury caused by
these factors was not attributed to the subject imports. Consequently, the causation analysis
conducted by Economía is inconsistent with Articles 3.1, 3.2, 3.4 and 3.5 of the Anti-Dumping
Agreement.
G. CLAIMS RELATING TO PROCEDURAL ASPECTS
1. Economía failed to inform the Exporter of the essential facts under consideration,
contrary to Article 6.9 and Annex II, paragraph 6 of the Anti-Dumping Agreement
47. In the instant case, there is simply no evid ence in the record to establish that Economía
disclosed the "essential facts" in accordance with Article 6.9 of th e Anti-Dumping Agreement. In
fact, a careful review of the record provides no b asis for the inference that Economía considered two
facts to be essential to its final determination, namely:

(a) That Economía used the facts available and that the price information furnished by
the Applicant was the primary basis for calculating the dumping margin;
(b) that despite the fact that no investigation was initiated in respect of structural pipes
and tubes and that Economía at no time re quired or compiled information on prices
for such pipes and tubes, the decision had b een taken to include structural pipes and
tubes in the definition of the product under consideration, and consequently, to apply
anti-dumping measures to such pipes and tubes also.
48. These facts became known to the Exporter only af ter publication of the Final Resolution.
Consequently, contrary to the provisions of Artic le 6.9 of the Anti-Dumping Agreement, Economía
failed to disclose to the interested parties the e ssential facts under consideration which formed the
basis for the decision to apply the definitive measure . Furthermore, Economía also failed to inform
the Exporter that the information on prices, particularly export prices, was unacceptable. This
omission also constitutes a violation of paragraph 6 of Annex II to the Anti-Dumping Agreement.
2. The disclosure of Economía's findings and conclusions in its Preliminary and Final
Resolutions is inconsistent with the provisions of Article 12.2 of the Anti-Dumping
Agreement
49. Neither Economía's Preliminary Resolution nor its Final Resolution meets the standards of
Article 12.2 of the Anti-Dumping Agreement. Neither of them contains an explanation of Economía's
decision to modify the definition of the product unde r consideration in order to include four to six
inch pipes and tubes or structural pipes and tubes.
50. Consequently, Guatemala considers that both the Preliminary Resolution and the Final
Resolution fail to meet the requirements of Article 12.2 of the Anti-Dumping Agreement, inasmuch as
they contain no explanation of Econom ía's determination with respect to the pipes and tubes that fell
within the scope of the definition of the product under consideration.
3. Economía afforded confidential treatm ent to information from the Applicant
notwithstanding failure to show good cause or to furnish non-confidential summaries, in
violation of Article 6.5 of the Anti-Dumping Agreement
51. In Guatemala – Cement II , the Panel confirmed that Article 6.5 distinguishes between two
types of confidential information: (1) "infor mation which is by nature confidential", and
(2) information "which is provided on a confiden tial basis". Article 6.5 then provides that the
provision of confidential treatment is conditional on "good cause" being shown, and the requirement
to show "good cause" appears to apply for both typ es of confidential information, such that even
information "which is by nature confidential" ca nnot be afforded confidential treatment unless "good
cause" has been shown. In that Panel's view, good cause must be shown by the interested party
submitting the confidential information at issue and not by the investigating authority, "since – with
respect to information that is not "by nature confid ential" in particular – the investigating authority
may not even know whether or why there is cause to provide confidential treatment".
52. In addition to the showing of "good cause", Article 6.5.1 provides that the authorities shall
require interested parties providing confidential information to furnish non-confidential summaries
thereof. In the event that the aforementioned requi rements cannot be met, Article 6.5.2 provides that,
if the supplier of the information is either unwilling to make the information public or to authorize its
disclosure in generalized or summary form, the au thorities may disregard such information unless it
can be demonstrated to their satisfaction from appropriate sources that the information is correct.
53.
In the present case, Economía: (i) failed to ev aluate the good cause shown by the Applicant
for the confidential treatment of information crucial to the main determinations; and (ii) failed to

assess whether the summaries provided were in "sufficient detail"; or alternatively, (iii) failed to
suggest that certain information be made public or to request authorization for its disclosure in
generalized or summary form. Guatemala therefor e considers that Economía failed to satisfy the
requirements laid down by Article 6.5 of the Anti-Dumping Agreement.
54. In its application, the Applicant requested confidential treatment for most of the information it
presented. However, Economía failed to assess whether "good cause" had been shown for the invoice
and the quotation, for example, to be given confidenti al treatment. Even if the Panel were to find that
good cause was shown for that information to be treat ed as confidential, Economía failed to require
the provision of non-confidential summaries thereof, thereby continuing to act inconsistently with
Article 6.5 of the Anti-Dumping Agreement. More over, Guatemala notes that, with regard to the
definition of the product under consideration, Econom ía also failed to comply with the provisions of
Article 6.5 of the Anti-Dumping Agreement. In response to Economía's subsequent requests for
information, the Applicant furnished certain repli es in a confidential form. Economía did not require
a showing of "good cause" or the submission of non-confidential summaries in order to treat that
information as confidential. It cannot be ignored that the definition of the scope of the investigation is
primarily based on the definition of the product. Thus, Economía acted inconsistently with Article 6.5
of the Anti-Dumping Agreement.
IV. REASONS FOR REQUESTING SUGGESTIONS CONCERNING
IMPLEMENTATION OF POSSIBLE RULINGS AND RECOMMENDATIONS BY
THE PANEL
55. If the Panel finds in favour of Guatemala in r espect of the claims set out above, Guatemala
requests the Panel to exercise its authority under Ar ticle 19.1 of the DSU to suggest ways in which
Mexico could implement the Panel's rulings and recommendations.
56. In order to implement the Panel's rulings a nd recommendations, Economía would have to re-
conduct the investigation, and for the new injury determination to be made in the future the
information relating to the period of investigation would be much more out of date than even the
information used for the injury determination in this dispute. Thus, the Exporter would also be
unfairly subjected to this entire procedure all over again.
57. Guatemala submits that, in this case, as in Argentina – Poultry Anti-Dumping Duties , the
Panel could consider that, given the nature and extent of the violati ons found in this case, there is no
conceivable way in which Mexico could properl y implement its recommendations "without revoking
the anti-dumping measure at issue"; this would lead to the suggestion that the definitive anti-dumping
measure at issue be repealed.
V. REQUEST FOR RULINGS AND RECOMMENDATIONS
58. In the light of the foregoing, Guatemala requ ests the Panel to find that, by imposing anti-
dumping duties on imports of steel pipes and tubes from Guatemala, Mexico – through Economía –
has acted inconsistently with its commitments under Artic les 1, 2.1, 2.2, 2.4, 2.6, 3.1, 3.2, 3.4, 3.5,
4.1, 5.2, 5.3, 5.4, 5.8, 6.2, 6.4, 6.5, 6.7. 6.8, 6.9, 6.13, 12.2 and 18.1 of the Anti-Dumping Agreement
and Annex II thereto.
59. Guatemala therefore requests the Panel to reco mmend that the DSB, pursuant to Article 19.1
of the DSU, request Mexico to bring its measure in to conformity with the relevant provisions of the
Anti-Dumping Agreement.

ANNEX A-2

FIRST WRITTEN SUBMISSION OF MEXICO

(16 August 2006)

CONTENTS

Page

I. MEXICO INITIATED THE INVESTIGATION WITH SUFFICIENT
EVIDENCE OF DUMPING AND INJURY, CONSISTENT WITH ARTICLE
5.2, 5.3 AND 5.8 OF THE ANTI-DUMPING AGREEMENT 15

II. ARGUMENT CONCERNING THE CLAIMS RELATING TO THE
PRODUCT UNDER INVESTIGATION AND THE LIKE PRODUCT 17
III. MEXICO APPLIED THE FACTS AVAILABLE IN CONFORMITY WITH
THE ANTI-DUMPING AGREEMENT 21
IV. CLAIMS RELATING TO THE DETERMINATION OF INJURY 22
V. GUATEMALA ERRONEOUSLY CLAIMS THAT THE SE FAILED TO
ANALYSE OR VERIFY THE NON-ATTRIBUTION OF INJURY CAUSED
BY OTHER KNOWN FACTORS 26

VI. ARGUMENTS WITH RESPECT TO CLAIMS RELATING TO
PROCEDURAL ASPECTS 28

I. MEXICO INITIATED THE INVESTIGATION WITH SUFFICIENT EVIDENCE OF
DUMPING AND INJURY, CONSISTENT WITH ARTICLE 5.2, 5.3 AND 5.8 OF THE
ANTI-DUMPING AGREEMENT
1. As recognized by the Appellate Body in pa ragraphs 61, 65 and 69 of its final report in
US – Carbon Steel , if a WTO Agreement remains silent on a particular subject, there is a reason for
such silence. It is not tenable that there shoul d be obligations in the Anti-Dumping Agreement that
are not indicated therein as Guatemala has maintained on several occasions.

2. Regarding the alleged lack of sufficient evidence in the request for initiation of the
investigation, we note that according to Article 5.2 of the Anti-Dumping Agreement, a request for
initiation shall include such evidence as is reasonably available to the applicant
 of dumping, injury,
and a corresponding causal link. At the same ti me, the Anti-Dumping Agreement makes no mention
of what is meant by "such evidence as is reasonabl y available to the applicant". Consequently, it is
the investigating authority that determines, accord ing to the particular circumstances of each specific
case, whether the evidence submitted with the application provides "reasonable" indications for the
initiation of an investigation.

3. At the same time, as stated in the final reports of the Panel in Mexico – Corn Syrup,
Guatemala – Cement II , and Argentina – Poultry Anti-Dumping Duties , it is clear that such evidence
does not necessarily
 have to be of the quality that would be necessary to support a preliminary or final
determination. It is also clear that such eviden ce need not be any more than data or information , a
review of which reveals that it is sufficient to determine that there is a well-founded likelihood of
dumping, injury, and causal link. In this case, th e investigating authority considered that the
application for initiation contained such informati on as was reasonably available and that it included
sufficient data.

4. Guatemala erroneously maintains that th e application for initiation lacked sufficient
information because the invoice and price quotation submitted by the applicant were not issued by
Tubac. This is not a valid reason for such a claim. Investigations are initiated by a country, and not
exclusively by an exporter. Th e applicant claimed that imports from Guatemala, and not from the
exporter Tubac, were being dumpe d. Consequently, domestic produ cers were under no obligation to
produce evidence of normal value with respect to Tubac specifically. Moreover, Article 5 of the Anti-
Dumping Agreement does not establish an obligation in the sense that Guatemala claims, so that its
argument is unfounded. Indeed, if there were an obligation to submit invoices issued by the exporters
mentioned in the application, for them to be able to be considered sufficient, this would mean
precluding the possibility of obtaining data on nor mal value in cases in which the exporters do not
produce the product under investigation, or do not se ll it in its market of origin, which is clearly
unacceptable. It would also be tantamount to main taining that the application has to contain evidence
of dumping of the quantity and qua lity that would be necessary to support a preliminary or final
determination, since the information for each exporter is needed to calculate their individual dumping
margin in such determinations. Once again, there is no foundation for this.

5. Furthermore, according to the final report of the Panel in US – Softwood Lumber , under
Article 5.2 of the Anti-Dumping Agreement, if the applicant has data reasonably available to it and
considers such data to be sufficient to support its claims, it is not required to provide all of the
information to which it has access.

6. Consequently, Mexico considers that even though the mentioned invoice was not issued by
the exporter under investigation, the evidence s ubmitted with the application for initiation was
sufficient to determine that initiation was appropriate (in this case with respect to the likelihood of
dumping, based on the documents relating to normal value).

7. As regards the price quotation used to determ ine normal value, we repeat that the applicant
was under no obligation to provide all of the inform ation reasonably available to it or all of the
information it could reasonably ha ve obtained, but only the informa tion that it considered relevant,
among all of the information reasonably available to it, to support its contentions.

8. At the same time, Article 5.1 of the Anti-D umping Agreement clearly states that the objective
of an investigation is to determine the existe nce, degree and effect of any alleged dumping
. If it were
necessary for the applicant to prod uce (and for the investigating aut hority to examine the sufficiency
of) evidence of dumping – and not of alleged dumpi ng – initiation would be practically impossible.
In fact, there would be no sense in conducting an in vestigation, since an assessment of the relevance
of the evidence submitted with the application w ould be enough to immediately impose anti-dumping
duties.

9. Although a price quotation is not evidence of actual sale, it does provide an indication of the
existence of "alleged dumping", since it is a suffi cient signal that there is a well-founded probability
that the sale will take place according to the terms of the price quotation. It is reasonable to suppose
that there are buyers that will accept the terms thus established and that the sales will take place
accordingly. Thus, the price quotation does constitu te a sufficient reason to believe that there is
"alleged dumping", and hence to initia te the investigation to determine whether such dumping in fact
exists. This is also supported by the final report of the Panel in US – Softwood Lumber.

10. Guatemala erroneously claims that the invoice and price quotation submitted in support of the
normal value concerned isolated transactions, and th at this was not enough to substantiate a dumping
allegation. It relies, in this connectio n, on the final report of the Panel in Argentina – Poultry
Anti-Dumping Duties . That determination does not apply to the case at issue, since in the case of
Argentina, it was found that Article 2.4 and 2.4.2 of the Anti-Dumping Agreement had been violated
through an incorrect calculation of the margins of du mping, while what Guatemala is claiming is that
there was not enough information to initiate the i nvestigation under Article 5.2 of the Anti-Dumping
Agreement.

11. At the same time, the invoice contains data on sales prices for an equivalent of 8,000 kg of the
investigated product, while according to the da ta provided by the Guatemalan exporter, the
transactions conducted in Guatemala during the inv estigation period averaged 1,790 kg. Thus, the
mere volume of the sale recorded in the invoice is sufficient for the invoice to be considered a solid
basis for determining that there was a well-founded likelihood of dumping.

12. Guatemala also erroneously argues that the a pplication did not contain sufficient evidence of
dumping for the product under investigation in its to tality, and that this violated the Anti-Dumping
Agreement. Mexico considers that although the ap plication did not contain many items of evidence,
what was produced was the information reasonably av ailable to the applicant, comprising elements
from which it was possible to infer the likelihood of dumping by Guatemalan exporters, in keeping
with the standard established in the Anti-Du mping Agreement itself and in the relevant
WTO jurisprudence (see Guatemala – Cement II , Mexico – Corn Syrup , and Argentina – Poultry
Anti-Dumping Duties, in which it was determined that the evidence submitted with the application did
not need to be of the same quality and quantity th at would be necessary to support a preliminary or
final resolution).

13. The Anti-Dumping Agreement contains no e xpress obligation to provide more information
than what was submitted by the applicant. In fact, Article 5.2 of the Anti-Dumping Agreement
establishes the applicable criterion, namely the "r easonableness" of the data in the application, a
criterion which, as stated above, was met in the application for initiation.

14. As regards the use of two tube sizes for the initiation of the investigation, according to the
final report of the Panel in US – Softwood Lumber it is not necessary, for the purposes of the initiation

of an investigation, to produce specific evidence for each category of the product under investigation.
In fact, in our view, such an obligation would be contrary to the reasonableness criterion established
in Article 5.2 of the Anti-Dumping Agreement and with the criteria governing the sufficiency of
information mentioned earlier.

15. The application did contain relevant info rmation to support possible injury caused by
allegedly dumped imports. With respect to the evol ution in the volume of imports, given the way in
which goods are classified under the Harmonized Syst em and in a system with more digits, it is
perfectly understandable that the description of the products classified under tariff lines 7306.30.01
and 7306.30.99 should not correspond entirely to the product subject to the anti-dumping
investigation. Moreover, the identification – wh ere applicable – of the product under investigation
requires documentation relating to import transactions with the relevant invoices, since in Mexico,
official statistics are recorded with the description of the tariff lines, and not by specific product.

16. This means that to require the applican t enterprise to provid e accurate information
 on the
volume of the allegedly dumped im ports would be to impose a standard that is practically
unattainable, which is in fact why a much lower standard is applied to evidence accompanying an
application than to the evidence required to make a determination. If Guatemala's claim had any
merit, the applicants would have to have all of the documentation on imports – information which is
not public, but belongs to the importing enterprises. This is practically impossible during the initial
stage of an investigation, not to mention the adde d difficulty of having to collect monthly data for a
period of at least three years.

17. The investigating authority therefore cons idered that the information provided by the
applicant on the behaviour of imports from Guat emala was the information that was reasonably
available to the applicant at the time of app lication for initiation of the investigation, and
appropriately reflected the evolution in the volume of allegedly dumped imports, bearing in mind that
the information on import volumes and trends referred to the most restrictive range of products that
includes the product under investigation.

18. Mexico properly examined the accuracy and ad equacy of the evidence of dumping and injury.
According to the final report of the Panel in EC – Bed Linen , if the evidence produced in the
application for initiation is sufficient to initiate an i nvestigation and the investigation has in fact been
initiated, it must be inferred that the investigati ng authority actually condu cted the accuracy and
adequacy examination.

19. Moreover, the SE did conduct a full examin ation of the accuracy and adequacy of the
evidence provided in the application. In fact, th at examination led the SE to issue a request for
additional information from the applicant (" prevención") to clarify and/or supplement various other
items of information.

II. ARGUMENT CONCERNING THE CLAIMS RELATING TO THE PRODUCT
UNDER INVESTIGATION AND THE LIKE PRODUCT
20. Mexico made two changes to the definition of the product under consideration, acting in
conformity with the Anti-Dumping Agreement. Firstly, the Preliminary Resolution included
diameters of pipes and tubes in addition to those considered in the Initiating Resolution. Secondly,
structural pipes and tubes were included.

21. We repeat that under Article 3.2 of the DSU and the report of the Appellate Body in
US - Carbon Steel, if a WTO agreement is silent on a particul ar matter, it is for a reason: when the
negotiators intended disciplines to apply in anot her context, they expressly said so. Guatemala
attempts to base its arguments on the determinati on of the product under inv estigation on obligations

that are non-existent in the Anti-Dumping Agreem ent, since that Agreement provides no guidance on
how the said determination should be made. Consequently, its arguments are without foundation.

22. Even if the Anti-Dumping Agreement did pr ovide guidance for determining the product under
investigation, it would be unreasonable not to be ab le to adjust the definition of the investigated
product provided at the initiation of an investig ation on the basis of evidence submitted by the
interested parties or obtained by the investigating authority.

23. Concerning the first change in the definition of the product under investigation, we note that it
is customary to describe the product case by case, considering its specific characteristics, from the
outset of the investigation. Since the investigating authority is not an expert with detailed knowledge
of all of the physical and technical characteristics of the product, in the Initiating Resolution it bases
its product description on data that has essentially b een provided by the applicant in accordance with
Article 5.2(ii) of the Anti-Dumping Agreement, whic h is what was done in this case. The Initiating
Resolution describes the numerous physical and techni cal characteristics which, together, must be
taken into account in describing the product under inv estigation. One of the characteristics alone, or
several of them, cannot be considered sufficient to describe the product.

24. Thus, the inclusion in the Preliminary Resolution of pipes and tubes of more than four and up
to six inches in diameter does not substantially alte r the description in the Initiating Resolution, and is
consistent with the Anti-Dumping Agreement for the following reasons:

(a) Although the Initiating Resolution sets out the main characteristics of the product
under investigation, this does not mean that the description is definitive. We note that
the Anti-Dumping Agreement contains no restrictions in this respect.
(b) An anti-dumping investigation "is a process where certainty on the existence of all the
elements necessary in order to adopt a measure is reached gradually as the
investigation moves forward". In other word s, even the investigation helps gradually
to complete the description of the product under investigation.
(c) The Initiating Resolution established that the diameter of the pipes and tubes
considered was basically
 in the range of one half to f our inches. Nowhere did it state
that this range was the only one that could enter the domestic market – this must be
assessed on the basis of commercial interchangeability.
(d) Only the diameter of the pipes and tu bes investigated changed. The other
characteristics indicated in the Initiating R esolution remained the same. An increase
in diameter does not signify a substantial alteration in the description of the product
under investigation, especially when the diameter is not the only relevant
characteristic used to describe it.
(e) In terms of the characteristics and uses of the pipes and tubes investigated, it would
be technically and commercially possible, for certain purposes, to substitute the
four inch pipes and tubes with pipes and tubes of up to six inches.
(f) Tubac had the opportunity to state its positi on with respect to this change. By not
doing so, it tacitly accepted that the product under investigation was the product
described in the Preliminary Resolution.
25. Guatemala asserts that the Ministry of the Economy (SE) failed to conduct an objective
examination based on positive evidence of dumping, injury, and causal link. However, the obligation
in Article 3.1 of the Anti-Dumping Agreement does not apply to the calculation of a dumping margin.
The standard mentioned by Guatemala is unacceptable.

26. The dumping, injury and causal link determinations in the Preliminary Resolution are
consistent with the Anti-Dumping Agreement. According to the Panel in US – Softwood Lumber CCI
and the Appellate Body in US – Hot-Rolled Steel, an investigating authority complies with Article 3.1
of the Anti-Dumping Agreement when: (a) it bases itself on affirmative, objective, verifiable and
credible evidence; and (b) it gathers and eval uates that evidence in good faith and fundamental
fairness. The investigating authority complied w ith all of these conditions: it conducted an objective
examination of the volume of imports, of their effect on the prices of like products, and the impact on
the domestic industry, based on positive evidence, and this was taken into consideration in imposing
the anti-dumping duties.

27. For the above reasons, Mexico requests the Pane l to dismiss Guatemala's arguments: indeed,
there are no specific guidelines for defining the product under investigation, the investigating
authority being entitled to do so as it deems appr opriate; the ranges included in the Preliminary
Resolution were commercially interchangeable with the ranges included in the Initiating Resolution;
the exporter expressed no objections to the change , and hence accepted it; and an analysis was
conducted of the specifications and technical charac teristics of the product under consideration in
order to define it properly.

28. Regarding the second change to the product unde r investigation, we repeat that "an anti-
dumping investigation is a process where certainty on the existence of all the elements necessary in
order to adopt a measure is reached gradually as th e investigation moves forward". Since there is
nothing in the Anti-Dumping Agreement to prevent it from doing so, in the Final Resolution the SE
described the product under investigation on the basi s of the facts available to it, including the
technical and commercial interchangeability of standard and structural pipes and tubes.

29. The applicant provided information specifying the main
 use of the pipes and tubes under
investigation (conduction of fluids, use linked to th e diameter and thickness of the pipes and tubes),
establishing that regardless of whether the pipes and tubes were made of hot- or cold-rolled sheet and
of the manufacturing specifications, pipes and tubes of certain diameters and thickness could be used
for conduction. Galvanized and black structural pip es and tubes one half to six inches in diameter of
certain wall thicknesses can be used for conduction, as established in the Final Resolution.

30. According to the information obtained by the SE, the same pipes and tubes could be used for
the conduction of fluids or for structural uses, even when they have been submitted to a "hydrostatic
test" (required by Standard ASTM A53). The fact that Tubac may not have known that this was the
case does not mean that it was not done in the Mexican market. As stated in the Final Resolution:
(a) black or galvanized structural pipes and tub es have wall thicknesses, physical characteristics and
compositions equivalent to standard pipes and tubes, and can therefore be used for conduction; (b) in
fact, standard pipes and tubes are purchased wit hout a hydrostatic test and with or without a
subsequent test they are marketed as pipes and t ubes for conduction; (c) certain enterprises import
structural pipes and tubes and market them as pipes and tubes for conduction.

31. Thus, the analysis of the arguments and ev idence submitted by the parties provided the SE
with the necessary elements to d escribe the pipes and tubes under investigation by their main use and
main characteristics for that use ra ther than in terms of standards or inputs or by the indications
"standard" or "structural", as stated in the Fi nal Resolution. In describing the product under
investigation in these terms, the SE proceeded corre ctly, bearing in mind the essential characteristics
of the products and in view of the fact that since - as recognized by Guatemala - there are no
guidelines for defining the product under investigation, it is up to the authority to do so and to carry
out an objective examination based on positive evidence in its injury analysis.

32. Thus, the SE merely specified what pipes and tubes were under investigation. The scope of
the product under investigation was not generically e xpanded to include "structural" pipes and tubes,
but merely pipes and tubes that were technically and commercially interchangeable with galvanized or

black pipes and tubes, half an inch to six inches in diameter and with a wall thickness from 0.075 up
to 0.28 inches, regardless of their in tended use (which is impossible to detect from a customs point of
view).

33. Contrary to what Guatemala has tried to de monstrate, these are not two different products –
they are one and the same. Pipes and tubes may be acquired for "structural" purposes, but used for the
conduction of fluids and even marketed as pip es and tubes for conduction, subject only to the
hydrostatic test. Consequently, a consumer that did not require the hydrostatic test could purchase
structural pipes and tubes and use them for the conduc tion of fluids. In other words, the two types of
pipes and tubes can be commercially interchangeable.

34. Regarding the disclosure of the essential facts, th is will be dealt with in the chapter containing
the responses to the claims relating to procedural aspects.

35. The investigation was conducted in an unbiased manner and involved an objective analysis
based on positive evidence. Throughout the proce dure, the interested parties were given the
opportunity to produce evidence, arguments and data to ensure a ruling consistent with the Anti-
Dumping Agreement. As indicated in the Fina l Resolution, there were several requests for
information, and the replies to these requests were ta ken into account by the investigating authority in
its determinations. Similarly, during the on-the-s pot investigation, Tubac could have exercised its
right to make any statements it deemed appropria te, but instead it was merely confirmed that the
information it had provided during the proceedings w as not sufficient to be considered. And Tubac
was given the same opportunity once again during the public hearing and the pleading stage.
Consequently, the basis for Guatemala's claim is not very clear, since the SE, in compliance with
Article 3 of the Anti-Dumping Agreement, conducte d an unbiased procedure comprising an objective
analysis based on positive evidence.

36. We repeat that Article 3.1 of the Anti-Dumping Agreement does not apply to the dumping
analysis, so that the standard that Guatemala would impose is unacceptable. The Final Resolution
reflects the analyses of dumping, injury and causal li nk. In its main determinations set forth in the
Final Resolution, with respect to injury and causal link the SE clearly relied on positive evidence that
it had analysed objectively.

37. Regarding the injury analysis, we insist th at according to the final report of the Panel in
US – Softwood Lumber and the report of the Appellate Body in US – Hot-Rolled Steel , the
investigating authority complies with Article 3.1 of the Anti-Dumping Agreement when: (a) it bases
itself on affirmative, objective, verifiable and credib le evidence; and (b) it gathers and evaluates that
evidence in good faith and fundamental fairness. Th e SE fulfilled those conditions by carrying out an
objective examination of the volume of imports, their effect on prices for like products, and the
impact on the domestic industry, all of which is reflected in the Final Resolution

38. Regarding paragraphs 94, 151, 158, 161 and 162 of Guatemala' s first written submission, the
Anti-Dumping Agreement does not require any partic ular methodology for making price comparisons
and evaluating price effects. In the absence of specific guidelines on the manner in which such
comparisons should be made, any WTO Member is free to conduct its analysis as it deems
appropriate, provided that it relies on positive evidence and makes an objective examination.

39. Thus, since the structural and standard pi pes and tubes were technically and commercially
interchangeable; since the exporter remained silent when it had the opportunity to make a statement;
since there are no guidelines for defining the product under investigation; and since an analysis was
conducted of the specifications and technical characte ristics of the product investigated in order to
define it correctly, Mexico acted in conformity with the Anti-Dumping Agreement.

40. The SE did provide explanations on the ma nner in which it conducted its analysis of
dumping, injury and causal link. Before examining this point, it should be noted that the SE provided
adequate justification of the coverage and descr iption of the product under investigation. Since
structural and conduction pipes and tubes are include d because they are mutually substitutable from a
technical and commercial point of view, the SE consid ered that the variables analysed applied to both
categories. In the Final Resolution, the SE clearly indicates the manner in which it conducted its
dumping, injury and causation analysis, and that it carried out an objective analysis based on positive
evidence. Consequently, in determining the defi nitive anti-dumping duties for Guatemalan pipes and
tubes, Mexico complied with the provisions of th e Anti-Dumping Agreement, and because it has been
demonstrated that the basic premise of the Guatemalan argument – that structural pipes and tubes
should not have been included in the product under investigation – is without foundation, it follows
that the entire argument is without foundation.

41. Mexico also considers that the comparis ons between export prices and normal value were
done fairly. Thus, it acted in conformity with Ar ticle 2.2 and 2.4 of the Anti-Dumping Agreement for
the reasons set out above.

42. The exporter had ample opportunity to present arguments in respect of the new information
submitted following the public hearing. As men tioned earlier, the description of the product under
investigation in the Final Resolution took account of the possible entry into the Mexican market of
structural pipes and tubes which had all of the re quired characteristics for use in the conduction of
fluids, since there was sufficient technical evidence to show that the two categories of pipes and tubes
were technically and commercially substitutable. We note that Guatemala fails to mention in its first
written submission the characteristics that distinguish standard from structural pipes and tubes.

43. The clarifications regarding the inclusion of st ructural pipes and tubes in the definition of the
product under investigation owing to its technical and commercial interchangeability with pipes and
tubes used for conduction could not be provided at the initiation of the investigation because there
was nothing in the record to indicate that their phys ical and chemical characteristics and the process
by which they were produced were the same, and th at the only difference resided in the "hydrostatic
test", nor was there anything to indicate that certa in consumers purchased "structural" pipes and tubes
ultimately to use them for the conduction of fluids.

44. When the SE learned of these facts, it gave T ubac the opportunity to submit data and evidence
concerning the technical and commercial substitutability of standard and structural pipes and tubes (it
sent out a request for information, to which Tubac rep lied). It should be stressed that the inclusion of
structural tubing was not an essential fact when it came to imposing definitive anti-dumping duties,
since for the purposes of the investigation, it was th e same product. We do not therefore believe that
there was any obligation to disclose the essential facts once again: they had already been disclosed in
the Preliminary Resolution and in the public hearing. Consequently, Mexico acted in conformity with
the Anti-Dumping Agreement.

III. MEXICO APPLIED THE FACTS AVAILABLE IN CONFORMITY WITH THE
ANTI-DUMPING AGREEMENT
45. Guatemala maintains that there was no reason fo r the SE to reject the information in respect
of which it did not encounter any problems during the verification visit, and that it did not notify the
exporter that it would be carrying out the final dete rmination on the basis of the facts available.
Mexico considers Guatemala's claims to be without foundation, since the investigating authority used
these facts in conformity
 with the Anti-Dumping Agreement itself.

46. According to Article 6.8 of the Anti- Dumping Agreement, the cases in which the
investigating authority may use the facts available ar e: (a) when an interested party refuses access to
necessary information; (b) when the said party does not provide such information within a reasonable

period; or (c) when it significantly impedes the investigation. And the Panel reports in Argentina –
Ceramic Tiles and Egypt - Steel Rebar establish that in order to remedy this lack of information it is
possible to resort to the facts available.

47. The Guatemalan exporter did not provide all
 the information necessary, and the information
submitted in the course of the investigation cannot be considered reliable, complete, accurate and
precise: indeed, when the AI conducted its on-the-spot investigation, it found so many
inconsistencies with the data prev iously provided by Tubac that it was practically impossible to use
the information.

48. Thus, in conformity with the Appellate Body report in US – Hot-Rolled Steel and with the
final report of the Panel in Argentina – Poultry Anti-Dumping Duties, finding that the data supplied by
the exporter could not be used (even if only part of the information was involved, as referred to by the
Appellate Body in EU – Hot-Rolled Steel), and in keeping with the Panel report in Egypt - Rebar, the
SE had to cure the lack of information by using the facts available. The SE could not consider
Tubac's data, since it was inconsistent, incomp lete and inaccurate, and was not drawn from the
company's accounting records (as Guatemala accept s with respect to the constructed value in
paragraphs 200-202 of its first written submission, with respect to normal value and export price
adjustment for freight in paragraph 204, with r espect to external freight to a third country in
paragraphs 207 and 208, and with respect to adjust ments for insurance and physical differences in
paragraph 212).

49. Thus, the exporter having failed to provide reliable information and to provide it within a
reasonable time, i.e. during the entire period prior to the on-the-spot investigation, and since it
therefore significantly impeded the anti-dumping i nvestigation, the SE dismissed the information
provided by the exporter and properly resorted to the facts available, in conformity with the Anti-
Dumping Agreement and in keeping with accepted WTO criteria. In fact, the investigating authority
was not only entitled to do this, it was obliged to do so in order to draft a resolution that was in
keeping with the Anti-Dumping Agreement.

50. At the same time, the resolutions issued by the SE set out in ample and sufficient detail the
considerations and conclusions r eached by the investigating author ity on dumping, injury and causal
link, and include all of the matters of fact a nd law that the SE deemed relevant, including the
determination of the margin of dumping based on th e facts available and the reasons which led to the
imposition of the definitive measure.

IV. CLAIMS RELATING TO THE DETERMINATION OF INJURY
51. In using the period 1 July to 31 December 2000 as the investigation period, the SE acted
consistently with the Anti-Dumping Agreement.

52. Guatemala states without the slightest evidence that the investigation period was not as close
as practicable. This does not amount to the estab lishment of a prima facie case of violation by
Mexico. In our view, it is not possible for a panel to rule in favour of a party that has not established
such a case.

53. Guatemala erroneously asserts that it is establishing the same prima facie case as the
United States established in Mexico – Rice . However, the rice dispute was based on different
considerations from those being analysed here. Since the assumptions are entirely different, and since
Guatemala has not provided any further arguments, its statement is without foundation. Indeed, in the
rice case, the time span between the end of th e investigation period and the initiation of the
investigation was 15 months, while in the present case, it was only eight months, so that it cannot be
said that the data from the investigation period w as no longer relevant. In this case, the SE conducted
a much fuller analysis of the information submitted in the application, as reflected in the request to the

applicant for additional technical information (in f act, that request and the reply thereto took up a
considerable portion of the eight months). And in the rice case the Appellate Body found that Mexico
had acted inconsistently with the Anti-Dumping Agre ement in that the investigation period proposed
by the applicant was accepted because it reflected the period of highest export penetration.

54. While the period investigated is supposed to be as close as practicable to the initiation, this
does not mean that the Anti-Dumping Agreement is violated if the period is not immediately prior to
the initiation. In Mexico, the initiation of an inv estigation using an inves tigation period immediately
prior to the initiation is not possible. Not only does it take time for the applicant to gather the required
information, but in this case that information did not meet what the investigating authority considered
to be the necessary requirements, so that it had to ask the applicant for additional information. In
other words, there will inevitably be a delay. So yes, the period investigated was as close as
practicable to the date of initiation. Moreover, the delay was not such as to cast doubt on the
relevance of the investigation period used. Conseque ntly, it is incorrect to say that the SE ostensibly
accepted the investigation period proposed by the a pplicant: rather than accepting it, the SE issued
the mentioned request for further information, a nd once it had received the reply, decided that
investigation could appropriately be initiated. In other words, the question of whether the
investigation period is as close as practicable to the initiation must be examined case by case.

55. In using the information from the period under investigation Mexico conducted an objective
examination based on positive evidence. Article 3.1 of the Anti-Dumping Agreement provides no
guidance on the remoteness of the investigation period per se , but on the acceptability of the data
used, in which respect the age of the said data is only one factor to be analysed. Moreover, if the
period investigated is as close as pr acticable to the date of initiation, the data from the said period are
relevant, and hence, should be cons idered in the investigation. Gu atemala itself accepted in its first
written submission that it cannot be determined a prio ri that the remoteness of an investigation period
is per se a cause of inconsistency with the Anti-Dumpi ng Agreement, but the scope of the data used
and their applicability should be examined.

56. Thus, given that the investigation period was as close as practicable, there is no obligation in
the Anti-Dumping Agreement to the effect that the investigating authority s hould gather more data.
According to the final report of the Panel in EC – Tube or Pipe Fittings , the purpose of using an
investigation period is to be able to rely on da ta that is not affected by the initiation of the
investigation or by any subsequent action by e xporters or importers. The Anti-Dumping Agreement
does not provide for changes in the situation duri ng the investigation period through information
updates in the course of the investigation, but th rough examination mechanisms, as stated in the
Appellate Body Report in the above case. Conseque ntly, if there are any major changes during a late
phase of the investigation period or after that period, those changes must be considered during a
subsequent examination in conformity with Articles 11 or 9 of the Anti-Dumping Agreement.

57. The SE acted consistently with the Anti-Dump ing Agreement by using six-month periods in
each year in its injury examinati on. Guatemala merely affirms that the use of six-month periods for
each year is prima facie evidence of Mexico's violation of the Anti-Dumping Agreement without
carrying its reasoning any further, which is unsustainable. Similarly, it relies on the Report of the
Appellate Body in Mexico – Rice – wrongly, since the assumptions of that case are totally different
from those of the case at issue.

58. At the same time, we repeat that if a WTO Agre ement is silent on a particular matter it is for a
reason. When the negotiators intended disciplines established in a particular provision to apply in
another context, they expressly said so. Since ther e is no indication in the text of the Anti-Dumping
Agreement of how an injury analysis should be condu cted with respect to the periods used, the use of
six-month periods in each year in no way violates that Agreement.

59. We nevertheless note that in the injury anal ysis, the periods from July to December of 2000,
1999 and 1998 were compared, irrespective of whether or not the situation was better or worse during
this period than during the six-month period from January to June. Thus, if the investigating authority
had found that the indicators from July to Decem ber of 1998, 1999 and 20 00 had shown a negative
situation in the domestic industry but were identical , it would not have determined that injury had
been caused, even if the period fro m July to December were less fa vourable for the domestic industry
than January to June. By comparing the same peri ods for each year, the structure is by definition the
same, and seasonal or cyclical tendencies or fluc tuations in the economic indicators (for example
price index or GDP) are avoided, besides which the six-month periods are consistent with the
investigation period.

60. Mexico acted correctly in considering some of the financial indicators on an annual basis.
The information regarding these indicators was obtai ned from financial statements that had been
submitted to an auditor, because audited statements are even more reliable. In accordance with
Mexico's accounting practices, the purpose of financ ial statements that have been submitted to an
auditor is to provide information on the financial situ ation at a certain date, and they are submitted for
the same dates as the financial information reporte d to the tax auditors on the situation of an
enterprise. Financial information regarding an enterprise is normally submitted for tax purposes on an
annual basis. Consequently, these financial fact ors must be analysed on the basis of annual
information, and not six-monthly information. Wi th respect to profits earned for the like product,
however, annual and six-monthly information was ava ilable, so that in the Final Resolution, that
information is analysed on an annual and six-monthly basis. It is therefore clear that affirmative,
objective, verifiable and credible evidence was used , and that the examination of that evidence was
objective, in conformity with Article 3 of the An ti-Dumping Agreement. Similarly, because it rests
on a permissible interpretation of the provisions of the Anti-Dumping Agreement, in conformity with
Article 17.6(ii) of that Agreement, the measure adopted by Mexico is consistent with Article 3 of the
Anti-Dumping Agreement.

61. Mexico acted consistently with the Anti-Du mping Agreement in analysing the factors of
injury to the domestic industry. According to Articles 4.1 and 5.4 of the Anti-Dumping Agreement, if
an application is submitted by a domestic producer that represents more than 50 per cent of total
domestic production expressing either support for or opposition to the ap plication, the investigation
shall be considered to have been requested by the domestic industry, and the examination can
therefore objectively focus on injury to that prod ucer. In this case, the applicant enterprise
represented 53 per cent of Mexico's total domestic production, so that the investigating authority
correctly based its analysis of the financial variables on information from the applicant. It is therefore
wrong to state that the analysis of the domestic industry was sectoral.

62. The investigating authority's analysis of the volume of imports from sources other than
Guatemala is consistent with the Anti-Dumping Agreement, since it uses all the available and relevant
information. It is common in anti-dumping investigations throughout the world that the product under
investigation should not necessarily correspond to th e descriptions in the import tariffs. Although the
description of tariff lines is as concise as possible, it is materially impossible for such descriptions to
cover the scope of anti-dumping investigations.

63. The authorities therefore gathered information through the interested parties participating in
the investigations and entities that are not interest ed parties. It is clear both in the Preliminary
Resolution and the Final Resolution that the SE tried at all times to obtain the best indicators. It must
not be thought, however, that the investigating author ity can always obtain all of the data it asks for,
since it does not
 always receive replies from the entities c oncerned. The investigating authority does
not have the power to require customs brokers or importers to provide the information it requests of
them; and the fact is that in practice, asking fo r information that is in the hands of the customs
authorities would lead to considerable delays wh ich would inevitably add to the time it takes to
complete the investigation, which is why the SE submits its requests for information to customs

brokers and importers. As regard s imports from countries other than Guatemala, the investigating
authority was unable to obtain all of the information th at it tried to obtain. Such practical difficulties
are common. Even the exporter, Tubac, omitted cer tain estimates of imports from Guatemala, and
pointed out that the SE could "estimate
" the volume of imports of the goods investigated on the basis
of information provided by "customs brokers and importing enterprises".

64. Mexico obtained 100 per cent of the docu mentation on imports from Guatemala because,
unlike imports from other sources, the volume of imports from Guatemala was not very high.
Contrary to what Guatemala claims, the SE did not obtain the import declarations ( pedimentos) from
the Mexican Trade Information System (SICMEX) . The system shows only a "list of import
declarations" (i.e. statistical information) and not the declarations themselves, which are in the hands
of the Ministry of Finance and Public Credit. The number of import transactions from sources other
than Guatemala under tariff heading 7306.30.01 and 7306.30.99 was 1,720 in 1998, 1,752 in 1999 and
2,456 in 2000. Consequently, given that the Anti-Dumping Agreement does not provide specific
guidance in this respect, the SE collected a samp le of import declarations reflecting significant
portions of the total volume imported and transactions by the leading importing enterprises. Thus, the
SE requested 745 import declarations with corres ponding invoices, of which 90 were from 1998, 106
from 1999 and 549 from 2000, i.e. 26 per cent, 22 per cent, and 57 per cent respectively of total
imports from countries other than Guatemala. It only saw a total of 673 import declarations.

65. Given the volumes covered by these declarations, and given that even the Guatemalan
exporter stated that it did not have the relevant data , the SE considered that th e available declarations
with the relevant invoices and the volumes covered by them represented a valid sample for estimating
the range within which the price of imports of th e subject product from other sources fluctuated. The
criterion used to estimate the subject product from other sources was the maximum and minimum
prices for the imports identified as the product u nder investigation from other countries. Clearly,
Mexico did not assume that the prices of imports from Guatemala and from the countries not
investigated were in all instances at the same level.

66. In evaluating the impact of the prices of Guatemalan imports on domestic prices, the
investigating authority in no way relied on a sample of 17 per cent of total imports from Guatemala
during the period from July to December 2000. The 17 per cent to which Guatemala refers is a
sample of imports from that country which was used to calculate the cost of transporting the product
from the port of entry into Mexico to the importe r's warehouse during the investigation period. It
bears no relation to the average prices of imports from Guatemala. Those average prices were
calculated on the basis of value and volume figures for total imports recorded in SICMEX and duly
adjusted.

67. Paragraph 7.115 of the final report of the Panel in Mexico – Rice (in which, according to
Guatemala, the Panel "observed that the declarati ons from Mexico contained all of the information on
the volume and value of the imports and could have provided a more accurate basis for an assessment
of the subject imports") is not applicable to th e case of Guatemalan pipes and tubes for the following
reasons:

 (a) In the rice case, what was being questioned was the way of separating dumped
imports from non-dumped imports, while in this case the totality of Guatemalan
imports were dumped;

 (b) in the rice case, not all of the import declarations and invoices from the country under
investigation were available, while in th is case, there were declarations "covering
practically 100 per cent of the volume imported from the Republic of Guatemala";

 (c) in the rice case, what was being questioned was the fact that a growth rate in dumped
imports from the US was assumed on the basis of the growth rate for total imports
from the US, something which was not done in this case;

 (d) in the rice case, the Panel established that the reason why there was a need to resort to
the declarations was that the alleged obliga tion to send a questionnaire to all of the
US exporters had not been complied with . However, the Appellate Body rejected the
suggestion that Mexico was under an oblig ation to send the questionnaire to all of the
US exporters. Thus, the final determinati on in paragraph 7.115 of the Panel report
does not apply, since the Appellate Body rejected the fundamental premise on which
it was based.

V. GUATEMALA ERRONEOUSLY CLAIMS THAT THE SE FAILED TO ANALYSE
OR VERIFY THE NON-ATTRIBUTION OF INJURY CAUSED BY OTHER KNOWN
FACTORS
68. Basically, Guatemala maintains that the inv estigating authority acted inconsistently with
Article 3 of the Anti-Dumping Agreement for the following reasons:

 (a) It argues that the SE failed to consider that the decline in th e applicant's operating
profits during the period of investigation was primarily the result of an increase in
costs, and that this was not explained in detail by the SE;

 (b) it maintains that the SE failed to explain as another determining factor of injury
the decline in exports by the domestic industry during the period of investigation,
with a posted reduction of at least 4 per cent in output.

69. As regards the first of these arguments, Gu atemala contradicts itself when it subsequently
points out that the alleged inconsistenc y on the part of the SE consists of not having evaluated the
injury caused by the increase in operating costs.

70. In fact, according to WTO jurisprudence (Appellate Body reports in US – Wool Shirts and
Blouses, EC – Hormones, and Japan – Agricultural Products II ), it is up to the party asserting a fact
to prove its claim. Thus, in dispute settlement proceedings it is for the complaining to establish a
prima facie case, after which the burden of proof shifts to the party complained against. The
suggestion that a mere assertion constitutes a proof of a claim in untenable.

71. In other words, it is up to Guatemala to make a prima facie case for its claims, and this cannot
validly be done through mere assertions. And yet, Guatemala plainly and categorically asserts,
without the slightest proof, that the decrease in th e applicant's profits was primarily the result of
increased costs. We therefore ask this Panel to dismiss its claim on the grounds that it has not
established a prima facie case of violation by Mexico as it contends, and that a panel cannot rule in
favour of a complaining party that has failed to prove such an assumption.

72. Moreover, contrary to what Guatemala has claimed, nowhere does the Final Resolution state
that there had been "an increase in operating co sts", so that we see no reason why, according to
Guatemala, the investigating authority should have had to explain the situation (in fact, we do not
know on what basis Guatemala asser ts that there was an increase in operating costs). Furthermore,
assuming, arguendo, that it should have done so, an increase in costs cannot be attributed to the injury
caused by dumped imports. In other words, the negative effects of the dumped imports, which are
finished products, cannot have an impact on the costs of a like product, which is another finished
product; so that it is impossible to carry out the analysis that Guatemala has called for.
Consequently, we ask this Panel to dismiss Guatemala's claim.

73. Nor does the Final Resolution contain any statem ent to the effect that the injury to domestic
production was exclusively the result of a decrease in sales revenue. On the contrary, what the Final
Resolution establishes is the structure of the analys is conducted in conformity with Article 3 of the
Anti-Dumping Agreement. Obviously, understanding the behaviour of producers' profits requires a
knowledge of the behaviour of other factors, namely sales revenue, selling costs and operating
expenses. In this context, the Final Resolution states that the behaviour of revenue and operating
expenses were the factors that influenced the downward trend in operating profits, which was the
factor to be evaluated.

74. As if that were not enough, in paragraph 223 of the Final Resolution, the SE continued to
analyse the elements which accordi ng to Guatemala were disregarded; and indeed, it was precisely
owing to the behaviour of costs that the decline in profits was less sharp, since the decrease in sales
revenue was greater than the recorded decrease in costs and expenses.

75. Moreover, the Final Resolution clearly stat es that the decrease in profits was a direct
consequence of the decrease in sales revenue and not of any identifiable adverse trend in sales costs.
This is precisely why there is no suggestion that th e injury recorded in the "profits" variable was
attributable to the behaviour of costs. In any case, what is mentioned in paragraph 224 is the 6 per
cent increase in operating expenses which is propo rtionally considerably less than the 19 per cent
decrease in sales revenue. Consequently, Guatemala's claims in this respect are without foundation.

76. Similarly, regarding Guatemala's argument th at Mexico acted inconsistently with the Anti-
Dumping Agreement by not providing an explanation to the effect that the d ecline in exports by the
domestic industry was another determ ining factor of injury, we note that in paragraph 304(b) of its
first written submission, what Guatemala appears to s uggest, rather, is that the decline in exports was
another determining factor of injury and that the SE did not make a determination to that effect.

77. In this connection, Mexico would like to repeat the arguments and points made in the
previous section concerning the obligation to establis h a prima facie case of violation attributable to
the party complained against.

78. At the same time, there is, in the Final R esolution, an explanation by the investigating
authority as to why the decline in the domestic i ndustry's exports was not a determining factor of
injury. According to this explanation, although to tal exports by the domestic industry of the product
under investigation decreased by 51 per cent duri ng 1999 and 25 per cent during the investigation
period, this does not per se constitute an indication that the decline was a determining factor of injury,
since in 1998 they represented 7 per cent of domest ic production, in 1999 3 per cent, and during the
investigation period 5 per cent. Thus, even if th e comparative percentages of exports are high, the
effect was practically negligible in view of the small volume of exports.

79. So, Guatemala has based its assertion that the SE favoured one factor of injury over another,
and that its examination cannot be considered objective, on an errone ous premise. It would appear
that Guatemala has assumed that the decline in domes tic sales has the same specific weight or impact
as the decline in exports, and that the SE should not therefore have considered one factor and
disregarded the other. What Guatemala fails to men tion is the vital element referred to above, namely
the volume of sales.

80. As mentioned, the reason why the decline in exports was not considered to be a determining
factor of injury was that it had a negligible imp act in view of the low volume of exports. Thus, the
reason why the decline in domestic sales was consider ed as a factor of injury, and not the decline in
exports, was that the latter was too small to justify the assumption that it was a determining factor of
injury. So Mexico did conduct an objective ex amination based on positive evidence of the factors
listed by Guatemala, and consequently, Guatemala's claims are without foundation.

81. For all of the reasons mentioned in this sec tion, we request this Panel to determine that
Mexico acted consistently with the Anti-Dumping Agreement and that Guatemala's claims are without
foundation.

VI. ARGUMENTS WITH RESPECT TO CLAIMS RELATING TO PROCEDURAL
ASPECTS
82. Concerning Guatemala's arguments with respect to Article 6.9 and paragraph 6 of Annex II of
the Anti-Dumping Agreement, it would appear that Gu atemala considers that the alleged violation of
Article 6.9 of the Anti-Dumping Agreement automa tically implies a violation of paragraph 6 of
Annex II of the Anti-Dumping Agreement. In Mexico's view, that paragraph is not applicable to the
disclosure of the essential facts.

83. Guatemala provides an incomplete quotation fro m paragraph 6.125 of the report of the Panel
in Argentina – Ceramic Tiles . In its totality, the paragraph derives its importance from the fact it
establishes clear guidelines on the disclosure of the essen tial facts: in the absence of any mention of
how the essential facts must be communicated , the investigating authority may do so, inter alia, by
issuing a special document, a verification report, a preliminary determination, etc. In this case, the SE
disclosed the facts both in the Preliminary Resolution and in the public hearing. In the light of the
above considerations, this is consistent with the Anti-Dumping Agreement.

84. Contrary to what Guatemala claims, Article 6.9 of the Anti-Dumping Agreement contains
two
 obligations: (a) to inform the interested parti es of the essential facts whic h form the basis for the
decision whether to apply definitive measures; and (b ) to provide this information in sufficient time
for the parties to defend their interests. The "essentiality" of those facts was notified in the Final
Resolution and in the public hearing. Consequently , it is wrong to assert that there is no indication in
any document that the essential facts were disclosed.

85. It is logical that if there are requests for information on the product under investigation as
such, that information should not be considered as essential. The investigating authority made a
request to Tubac, to which it received a reply that was sufficiently detailed for the information to be
used in the Final Determination (paragraph 67).

86. Similarly, Tubac is responsible for the f act that the information verified during the
on-the-spot investigation was not c onsistent with the information it submitted, so that in the light of
Article 6.8 of the Anti-Dumping Agreement, si nce Tubac's information was unreliable, the
investigating authority decided to resort to the f acts available. Tubac knew that its information was
flawed, so that it was predictable that it would be di smissed. We refer to Mexico's arguments in this
respect in part III of this submission.

87. As regards the disclosure of the essential facts through the contents of the record, we submit
that Tubac's rights were not affected: contrary to what Guatemala asserts, its defence did have access
to the information relating to the case, since in Mexico, confidential information may be consulted by
the legal representative of any of the interested parties. In fact, Tubac's legal representative did access
the confidential information in question, so that no prejudice was caused in this respect.

88. Regarding the second obligation of Article 6.9 of the Anti-Dumping Agreement, the SE gave
Tubac ample opportunity to defend its position in th e anti-dumping investigation and submit evidence
and arguments. The on-the-spot investigation re vealed that Tubac had not provided complete,
accurate and suitable information for the determinat ion of dumping, a circumstance that significantly
impeded the investigation. The investigating authority therefore had to resort to the facts available.

89. Concerning the complaint relating to Article 12.2 of the Anti-Dumping Agreement,
Guatemala states that the public notice or separate report must set forth in sufficient detail the findings

and conclusions reached on all issues of fact and law, that the SE failed to explain, in the Preliminary
Resolution, the decision to modify the definition of the product under consideration to include pipes
and tubes of up to six inches, and finally, that th e Preliminary and Final Resolutions are inconsistent
with Article 12.2 of the Anti-Dumping Agreement in that they contain no explanation of the diameters
included in the definition of the product investigated.

90. The Preliminary Resolution and the Final Resolution do set forth the required findings and
conclusions, and are therefore consistent with Ar ticle 12 of the Anti-Dumping Agreement. As is
evident from the considerando and resultando sections, the Final Resolution contains all relevant
information on the matters of fact and law which led to the imposition of the final measures.

91. Likewise, the investigating authority's dete rminations do contain a description of the product
which is sufficient for customs purposes; the marg ins of dumping established and a full explanation
of the reasons for the methodology used in the est ablishment and comparison of the export price and
the normal value under Article 2 of the Anti-Dumping Agreement; considerations relevant to injury
as set out in Article 3 of the Anti-Dumping Agreement; and the reasons leading to the determination.

92. Regarding the change in the product investigat ed, if the applicant suggests such a change and
the exporter expresses no objection thereto, it is normal that the investigating authority should have no
objection to making that change, the assumption being th at the interests of the parties are not affected
and that the parties in fact agree. Mexico re quests the Panel to dismiss the claim concerning the
change in the definition of the product investigated.

93. Concerning Article 6.5 of the Anti-Dumping Ag reement, it is not true that the exporter was
denied access to confidential information even th ough there were no non-confidential summaries.
Under Article 80 of the Foreign Trade Act (FTA), Mexico allows all of the interested parties access to
confidential information from the investigation provid ed they comply with certain requirements. In
declaring information to be confidential, the SE complied with that Article.

94. For information to be considered confidential, there must be a justification which, in the
absence of relevant guidelines in the Anti-Dumpi ng Agreement, is considered sufficient if the
investigating authority so determines. The inves tigating authority conducted the relevant analysis
which was set out in the administrative arrangement applicable to each application. We repeat that for
the reasons stated above, the fact that the do mestic producers did not provide non-confidential
summaries did not cause Tubac any pr ejudice. In fact, as pointed out in Folio 803 on the control of
requests and access to the record, Tubac's legal representative consulted, on 8 November 2002,
volumes 8, 9 and 10 of the confidential version of th e administrative record (Exhibit MEX-2), so that
Guatemala's claim of defencelessness in this respect is without foundation.

95. Regarding the requirement to provide public summaries of confidential information, the
second sentence of Article 6.5.1 of the Anti-Dump ing Agreement states that there are exceptional
circumstances in which it is possible that the info rmation cannot be summarized. In the case of tables
containing numbers, there is no way of summarizing them. Consequently, Mexico considers that it
acted appropriately by indicating the type of inform ation involved in order to inform the interested
parties that the information existed in confidential form and that they could therefore consult it.

96. For these reasons, Mexico considers it correc tly disclosed the "essential facts" on which its
Final Resolution was based; that the resolutions set out in sufficient detail the findings and
conclusions reached by the investiga ting authority on issues of fact a nd law; and that the information
from the applicant that was classified as confidentia l was correctly so marked, enabling the parties to
consult it at any time. Thus, Mexico respectfully requests the Panel to dismiss Guatemala's claims.