Document: WT/DS268/R Page D-1 ANNEX D ORAL STATEMENTS, FIRST AND SECOND MEETINGS Contents Page Annex D-1 Opening and Closing Oral Statements of Argentina – First Meeting D-2 Annex D-2 Oral Statement of the United States – First Meeting D-38
Document codes: WT/DS268/R
Complainant: Argentina
Respondent: U.S.
Third parties: China, EU, Japan, South Korea, Mexico, Taiwan
Dispute stage: Implementation & Compliance
Agreements cited: Art. 1, 2, 3, 6, 11, 12, 18, Annex II  Anti-dumpingArt. VI, X  GATT 1994Art. XVI:4  Agreement Establishing the World Trade Organization

ANNEX D

ORAL STATEMENTS, FIRST AND SECOND MEETINGS

Contents Page
Annex D-1 Opening and Closing Oral Statements of Argentina – First Meeting D-2
Annex D-2 Oral Statement of the United States – First Meeting D-38
Annex D-3 Third Party Oral Statement of the European Communities D-46
Annex D-4 Third Party Oral Statement of Japan D-53
Annex D-5 Third Party Oral Statement of Mexico D-59
Annex D-6 Third Party Oral Statement of the Separate Customs Territory of
 Taiwan, Penghu, Kinmen and Matsu
D-60
Annex D-7 Opening and Closing Oral Statements of Argentina –
 Second Meeting
D-62
Annex D-8 Opening and Closing Oral St atements of the United States –
 Second Meeting
D-86

ANNEX D-1

OPENING AND CLOSING ORAL STATEMENTS OF ARGENTINA –
FIRST MEETING

Opening Statement – 9 December 2003

I. INTRODUCTION
1. At the heart of this dispute is a fundamenta l disagreement between the United States and the
rest of the WTO constituency rega rding the sunset obligation of Article 11.3 of the Anti-Dumping
Agreement. For the United States, Article 11.3 is practically devoid of obligations. 1 For the United
States, anti-dumping measures can be continued indefin itely and on almost any basis. For the rest of
the WTO constituency, 2 including Argentina, Article 11.3 es tablishes a fundamental obligation to
terminate an anti-dumping measure five years after its imposition. Reliance on the limited exception
to this obligation requires a Member to make specific findings that are based on evidence and that
comply with the substantive standards established in the Anti-Dumping Agreement.

2. In this case, the United States did not terminate the measure applicable to Argentine OCTG,
but rather invoked the exception and continued the orde r for an additional 5 years, at least. However,
the United States did not make the findings required by Article 11.3, as Argentina explains in its First
Submission and elaborates today.

3. The United States accuses Argentina of having a weak case and of distorting facts. Argentina
does not believe such accusations are helpful. In stead, Argentina will present its arguments with a
focus on the Anti-Dumping Agreement obligation s, on the record of the underlying sunset
proceedings, and on the practice of the United Stat es. In doing so, Argentina will leave it for the
Panel to evaluate the merits of the case.

4. The underlying facts are not complicated. The only Argentine exporter ever investigated in
this case, Siderca, was found to have been dumping in 1994, based on the practice of zeroing negative
margins, at a level of 1.36 per cent. Thereafter, the exporter stopped shipping to the United States,
and the US Government conducted several reviews to confirm that it had stopped shipping. In the so-
called sunset review proceedings five years later, the Department determined that dumping was likely
to continue and the Commission determined that inju ry was likely to continue or recur. These are the
essential facts.

5. This simple fact pattern may seem more complicated by the various types of procedures set
up by the United States to implement its Article 11.3 obligations, the various levels of participation
that are possible in these proceedings, and the conse quences that the US system attaches to each level
of participation. This is especially true with respect to the likely dump ing determination by the
Department of Commerce, whose sunset determinations have little to do with a substantive analysis of
whether dumping is likely, and instead focus on the application of presumptions that lead to the
inevitable conclusion that dumping is likely to continue or recur.

6. In its First Submission, the United States denies that there are any presumptions at work, and
it defends its sunset laws, its sunset practice, and its su nset determinations in this case. As part of its

1 According to the United States, Article 11.3 is “very limited” and sets virtually no restraints or
limitations on a Member’s ability to maintain anti-dumping measures. (See US First Submission, para. 3.).
2 See Third Parties submissions of Japan, European Communities, Chinese Taipei, and Korea.

presentation today, Argentina will demonstrate certain contradictions that arise from a comparison of
the US sunset determinations challenged by Argentina and the arguments advanced by the United
States in its First Submission. Indeed, Argentina will highlight several instances where the words of
the sunset determination contradict the position assert ed by the United States in its First Submission.
The US First Submission also has a number of irr econcilable internal contradictions. Let me just
review some of these examples, which we have placed on Chart 1 for ease of reference.

7. Chart 1 lists four issues related to the likel y dumping determination which were key to the US
decision not to terminate the measure. They go to the very heart of the issue of whether the United
States made the type of determ ination required in order to invoke the exception provided for in
Article 11.3. Yet on these key issues, the United States takes a very different position in its First
Submission than it did in its sunset determination.

• With respect to waiver, the Department unambigu ously stated in its sunset determination that
the respondents waived their right to participat e in the review. In its First Submission, the
United States says that the Department did not deem Siderca to have waived its participation.

• With respect to Siderca’s response, the Departme nt clearly stated in its sunset determination
that Siderca’s response was inadequate.3 In its First Submission (para. 213), the United States
says the exact opposite – “Siderca did not fail to file an adequate response but, rather, filed a
complete substantive response.” Moreover, elsewhere in the First Submission (para. 233), the
United States asserts that: “An inadequate response is one that lacks required information or is
simply not submitted.”

• Notwithstanding the application of the waiver provisions to Side rca, the Department also cites
in its final determination the provision for the conduct of an expedited review and application
of “facts available,” which is the euphemism fo r adverse inferences. In its First Submission
(para. 214), the United States denies that it applied facts available to Siderca and explains that
it applied facts available to the “non-responding respondents” from Argentina. This
explanation not only contradicts the references in the sunset determination, but also contradicts
the United States’ explanation that any such “non-responding respondents” waived their right
to participate, which mandates a finding of likely dumping.

• Finally, with respect to these “non-responding respondents,” the Department never mentioned
such a term in the sunset determination or in the WTO consultations prior to this panel
proceeding. Yet Argentina learns through the First Submission filed by the United States that
these “non-responding respondents” triggered th e application of the waiver provisions, the
inadequacy determination, and the decision to conduct an expedited review.

8. In addition to these contra dictions relating to the purported basis for the Department’s
likelihood of dumping determination, the contrast between the treatment of Siderca’s lack of
shipments for the dumping and injury determinations is striking. For the likelihood of dumping, the
lack of shipments was the key factor leading to wa iver. For the likelihood of injury determination,
Argentina’s shipments were irrelevant because the Commission relied on speculation regarding non-
Argentine imports, all of which were considered on a cumulated basis.

3 See ARG-46 (Department’s Sunset Determination at 66,701) (“On the basis of … inadequate
responses… from respondent interested parties, the Department determined to conduct expedited reviews);
ARG-50 (Department’s Determination to Expedite at 2) (“…we recommend that you determine Siderca’s
response to be inadequate and that we should conduct an expedited (120 day) sunset review…); ARG-51 ( Issues
and Decision Memorandum at 3, 7) (“the Department determined Siderca’s substantive response to be
inadequate;” and “Siderca did not provide adequate substantive responses.”).

9. This case will challenge the Panel in severa l ways, especially because of the procedures
established in US law to implement the Article 11 .3 obligation, and the contradictions between the
sunset determination and the US First Submission. Yet, underneath all the discussion of the
procedures in the First Submission, there is only one factor that matters for the likelihood of dumping
determination: has the US industry participated in the sunset review? In the 217 cases in which the
US industry has expressed an interest in continuing the anti-dumping measure, the Department has
found a likelihood of a continuation or recurrence of dumping in each case. The US industry has
217 wins and 0 losses on the issue of likely dumping.

10. For the Commission’s sunset determination, th e picture is equally troubling. An analysis of
the Commission’s determination in this case shows that the Commission is not engaged in an analysis
of whether injury is “likely” to continue or recur, but rather makes its determination based on isolated
factors that cannot satisfy the common meaning of th e term “likely.” Further, the Commission makes
its determination on a cumulated basis of all countrie s subject to the measure, which has the effect of
negating the rights of individual Members who have the misfortune of being caught in the cumulated
analysis.

11. Argentina will not repeat all of the arguments set forth in its First Submission and notes that
this oral statement should not be viewed as exhaus tive of Argentina’s arguments. Argentina proposes
to present its case in the following manner. First, Argentina will review the nature of the Article 11.3
obligation, which is fundamental to this ca se. Second, Argentina will explain the WTO-
inconsistencies of the “likely” dumping determination by the Department. Third, Argentina will
demonstrate the violations of the Agreement by the “likely” injury determination by the Commission.
Fourth, Argentina will address briefly the preliminary objections that the United States has raised, and
which Argentina rebutted in full in its submission of 4 December. Finally, Argentina will draw
conclusions that place this case in the proper and necessary context.

II. THE ARTICLE 11.3 OBLIGATION
A. I
NTERPRETING ARTICLE 11.3 AND DEFINING THE SUNSET OBLIGATION IN PROPER CONTEXT
12. The only way to interpret the terms of Article 11.3 is to give the words their ordinary meaning
and to interpret the words in their context – both the immediate context (i.e., the other paragraphs of
Article 11) and the broader context (i.e., the othe r provisions of the Anti-Dumping Agreement, and
the WTO Agreements as a whole), in accordance with their object and purpose.

13. Article 11.3 must be read in the context of the overarching obligation set out in Article 11.1.
Article 11.1 fundamentally limits the use of anti-dumping duties in three significant respects:
duration (“only as long as necessary”); magnitude (“ only to the extent necessary”); and purpose (“to
counteract dumping which is causing injury”).

14. The panel in EC – Pipe Fittings recently reaffirmed the clear mandate of Article 11.1, noting
that it “contains a general, unambiguous and manda tory requirement that anti-dumping duties ‘shall
remain in force only as long as and to the extent necessary’ to counteract injurious dumping.” The
Panel added that Article 11.1 states “a general and overarching principle.” (DS219, para. 7.113) This
general principle is expressed substantively throughout the Anti-Dumping Agreement, including in
the “sunset review” provisions of Article 11.3. To put it simply, and to paraphrase the Appellate
Body’s statement in Steel from Germany , if there is no determination of likely continuation or
recurrence of injurious dumping, the measure must be terminated.

15. The United States would prefer to have th is Panel focus its attention exclusively on
Article 11.3, and ignore both the immediate context of Article 11, and the broader context of the Anti-
Dumping Agreement. The Vienna Convention does not permit such an approach. The United States
cannot assert that the Panel should base an inte rpretation of Article 11.3 of the Anti-Dumping

Agreement (as the United States does), entirely on the words used in that one provision; especially
when the words used in that provision are defined elsewhere in the Agreement. Rather, it is necessary
to interpret Article 11.3 by exam ining the ordinary meaning of all the provisions that together
prescribe the relevant obligations of Article 11. Th en the proper interpretation of the provisions must
be applied to the facts of the case.

16. To summarize, the United States asserts that Article 11.3 is an “empty shell.” Argentina and
the Third Parties participating in this case disagr ee, and contend that Article 11.3 incorporates the
substantive standards of Articles 2, 3, 6, and 12. As we will see later, th is fundamental difference
regarding the meaning of Article 11.3 is the basis of this dispute.

B. T
HE PRIMARY OBLIGATION OF ARTICLE 11.3 IS TERMINATION OF THE MEASURE
17. The Appellate Body in Steel from Germany explained that the primary obligation of
Article 21.3 – which parallels Article 11 .3 of the Anti-Dumping Agreement – is termination of the
measure after five years. Continuation of the measur e is the exception, and only if the there is strict
adherence to the requirements of the Agreement. The Appellate Body has stated:

[W]e wish to underline the thrust of Article 21.3 of the SCM Agreement. An
automatic time-bound termination of countervailing duties that have been in place for
five years from the original investigation or a subsequent comprehensive review is at
the heart of this provision . Termination of a countervailing duty is the rule and its
continuation is the exception. The continuation of a countervailing duty must
therefore be based on a properly conducted review and a positive determination that
the revocation of the countervailing duty w ould “be likely to lead to continuation or
recurrence of subsidization and injury.” (para. 88, emphasis added).
18. Article 11.3’s requirement to conduct a “rev iew” and make a “determination” precludes the
authority from assuming that dumping and injury would likely continue or recur. ( See Panel Report,
Sunset Reviews of Steel from Japan , DS244, para. 7.177.) The authority must take action and ground
its determination on a “sufficient factual basis” to allow it to “draw reasoned and adequate
conclusions concerning the likelihood” of continuation or recurrence. ( Id.) In this regard, the
authority’s determination cannot be based solely on outdated information, but rather “should rest on
the evaluation of the evidence that it has gathered during the original investigation, the intervening
reviews and finally the sunset review .” (Id.) The authority must make a “fresh determination” that is
forward-looking and “based on credible evidence.” (Appellate Body Report, Steel from Germany ,
para. 88.)

19. The Appellate Body plainly stated the consequences where a WTO Member fails to conduct a
sunset review or fails to make the required dete rmination under Article 11.3: “If [a WTO Member]
does not conduct a sunset review, or, having cond ucted such a review, it does not make such a
positive determination, the duties must be terminated.” (Steel from Germany, para. 63).

C. O
THER PROVISIONS OF THE ANTI-DUMPING AGREEMENT APPLY TO ARTICLE 11.3 REVIEWS
20. The terms of Article 11 mandate complian ce with other provisions of the Anti-Dumping
Agreement, including Article 2 (which defines “dumping” “for the purposes of the Anti-Dumping
Agreement,” including sunset reviews), Article 3 (w hich defines the meaning of “injury” under the
Anti-Dumping Agreement, including its use in the Article 11.3), and Article 6 (which applies to
reviews conducted under Article 11 by virtue of th e cross-reference contained in Article 11.4), and
Article 12. The textual analysis of the Appellate Body in Steel from Germany and the Panel Report in

DRAMS from Korea confirms that key substantive provisi ons of the Anti-Dumping Agreement apply
to Article 11.3 reviews.
4

21. The Third Parties agree that key substan tive provisions of the Anti-Dumping Agreement
(including Articles 2, 3, and 6) apply to reviews conducted under Article 11.3.5

D. THE US AUTHORITIES APPLIED THE WRONG STANDARD : THE ORDINARY MEANING OF
“LIKELY” IN ARTICLE 11.3 IS “PROBABLE” AND NOT “POSSIBLE”
22. Article 11.3 requires the authorities to determin e whether the expiry of the measures would be
likely to lead to continuation or re currence of dumping and injury. The US authorities failed to give
the term “likely” its ordinary meaning.

23. Both WTO and US jurisprudence make clear that “likely” does not have the same meaning as
“possible.”

24. Both the ordinary meaning of the term “likel y” and the context of Article 11.3 require the
application of a “probable” standard to the questio n of whether dumping and injury will continue or
recur. In other words, the continuation or recurrence of dumping and injury must be more likely than
not. Indeed, the United States itself has asserted before the WTO that the term “likely” means
“probable.” In Steel from Germany, the United States expressly stated that “[t]he word ‘likely’ carries
with it the ordinary meaning of ‘probable.’” (US Oral Statement at the First Meeting of the Panel,
WT/DS213, 29-30 January 2002, para. 6).

25. Hence, in order to make a determination that is consistent with Article 11.3, the Department
and the Commission must find that it is “likely” ( i.e., more probable than not) that termination of the
anti-dumping measure will lead to the continuance or recurrence of dumping and injury, respectively.

E. S
UMMING UP THE ARTICLE 11.3 OBLIGATIONS IN THIS CASE
26. The United States submits that it can invo ke the exception of Article 11.3 by initiating a
review and making a determination. The rest – the very substance of the determination – is not
subject to any disciplines, according to the United States. Argentina and th e Third Parties see it
differently. Reading Article 11.3 within its context re veals that it is full of s ubstantive obligations. If
a Member wishes to invoke the exception and continue a measure beyond the 5 year limit established
in Article 11.3, it is subject to specific disciplines that are common in the Anti-Dumping Agreement:

• It must conduct a review and make determinatio ns within a specified time if it wishes to
maintain the measure (required by Article 11.3);

• The conduct of the review and the determin ations must satisfy the requirements of
Article 6 and must be based on positive evidence;

• The authorities must find that dumping (within the meaning of Article 2) is “likely” to
continue or recur (dumping must be more probable than not); and

• The authorities must find that injury (within the meaning of Article 3) is “likely” to
continue or recur (injury must be more probable than not).

4 Appellate Body Report, Steel from Germany , paras. 69 n.59, 79-81; Panel Report DRAMs from
Korea, para. 6.59 n.501.
5 Third Party Submissions of European Communiti es (paras. 89-96, 123-127), Japan (paras. 3-21),
Korea (paras. 9-24), and Chinese Taipei (paras. 7-13).

 The United States failed to satisfy its ob ligations in this case in every respect.

III. THE DEPARTMENT’S SUNSET REVIEW OF OCTG FROM ARGENTINA
27. Let us turn now to the Department’s determin ation of whether dumping is likely to continue
or recur. Throughout this oral presentation, Argentina will focus on the application of the US
obligations in this specific case. However, such an exercise leads directly to laws and regulations
developed by the United States, the instruments th at inform those laws and regulations, and the
Department’s consistent practice in sunset reviews. Let us look briefly at the system that the United
States established to implement its 11.3 obligation (s ection A), then let us look at the application of
this system to Argentina in this case (section B), and finally we will look at the Argentine case in the
context of the other cases the United States has decided (Section C).

A. US SUNSET PROCEEDINGS
28. There is only one variable that matters in the whole of the US sunset regime governing
Department sunset reviews: whether the domestic industry participates in the sunset review. In
all 217 sunset reviews (including Argentina’s review) in which at least one domestic interested party
participated, the Department determined that termin ation of the measure would be likely to lead to
continuation or recurrence of dumping.

29. The basis for the Department’s determinat ion of likely dumping in each of these
217 sunset reviews was either: (1) application of the waiver provisions; or (2) resort to the three
“checklist” criteria established by the Statement of Administrative Action and the Sunset Policy
Bulletin.

30. The Department applied the waiver provisions in 167 sunset reviews, 77 per cent of the
sunset reviews in which the domestic industry participated. In all of these cases, the Department
issued a finding that dumping would likely continue or recur pursuant to the statutory mandate.
Illustrative of the swift – and to use the US de scription – “efficient” operation of the waiver
mechanism is the sunset review of antifriction bearings from Sweden, where the Department stated,
“[G]iven that . . . respondent interested parties have waived their right to participate in this review
before the Department, we determine that dumping is likely to continue if the orders were revoked.”
(Antifriction Bearings from Sweden (found in Tab 6 of ARG-63)). The Department made a similar
statement in the case being reviewed by the panel in this case: The Issues and Decision Memorandum
at 4-5 (ARG-51)(“In the instant reviews, the Depa rtment did not receive an adequate response from
respondent interested parties. Pursuant to section 351.218(d)(2)(iii) of the Sunset Regulations, this
constitutes a waiver of participation.”).

31. The US waiver provisions violate Article 11.3 because they mandate a finding of likely
dumping. Article 11.3’s requirement to conduct a “review” and make a “determination” precludes a
WTO Member from statutorily mandating an affirmative finding of likely dumping. To do otherwise
would be to reduce Article 11.3 to a nullity, some thing a treaty interpreter may not do. If a WTO
Member wishes to invoke the exception and continue an anti-dumping measure, it simply does not
have the option of doing nothing, or of passively assuming that dumping and injury would be likely to
continue or recur.

32. Resort to the checklist criteria of the SAA/ Sunset Policy Bulletin. In those cases in which
the Department does not apply the waiver provisions, the Department instead uses its other tool: the
checklist criteria in the SAA and the Sunset Policy Bulletin . These US instruments limit the
Department’s so-called likelihood “analysis” solely to a consideration of: (1) the existence of
dumping margins from the original investigation and subsequent administrative reviews; (2) whether
imports of the subject merchandise ceased after issuance of the order; and (3) whether dumping was
eliminated after imposition of the order and import volumes declined significantly.

33. The United States has not, and cannot, point to a single case in which the domestic industry
participated in a DOC sunset review and the Department determined that dumping would not be
likely. The facts of the DOC sunset reviews speak for themselves: In 100 per cent of the sunset
reviews in which a domestic interested party pa rticipated in the proceeding, the Department
determined that dumping was likely to continue or r ecur; and in 100 per cent of the sunset reviews for
which the Department determined that dumping was li kely to continue or recur, the Department relied
on the directives of the SAA and the Department’s Sunset Policy Bulletin.

34. For ease of reference Argentina has prepared Chart 2, which depicts the DOC sunset review
system.

35. The first page demonstrates that there is only one dispositive factor in DOC sunset reviews.
That is, whether the domestic industry participates. As the chart shows, in 100 per cent (all 217) cases
in which the domestic industry participated, the Department determined that dumping would be likely.
In those cases in which the US industry did not participate (74), the Department terminated the order.

36. Page 2 of the Chart shows the two tools us ed by the Department that give rise to the
remarkable winning percentage of the US industry . The Department reaches the likely dumping
determination either thro ugh the application of the mandatory waiver provisions or reliance on the
SAA/Sunset Policy Bulletin checklist criteria. Together these two tools enable the Department to find
likely dumping in any case in which the domestic indus try is interested. At the end of the day, the
waiver provisions and presumption under US law created by the SAA and Sunset Policy Bulletin
simply preclude the Department from conducting a review and making the determination required by
Article 11.3.

37. Page 3 of the Chart depicts the “deemed wa iver” mechanism in US law, where a respondent
interested party that attempts to participate in a DOC sunset review is “deemed” by the Department to
have waived its right to participate by virtue of either an “incomplete” or “inadequate” substantive
response. A party’s response can be deemed inadequate solely on the basis that its imports are less
than 50 per cent of the total exports to the United St ates from that party’s country. This is precisely
what happened to Siderca in this case.

38. Finally, as Page 4 of the Chart shows, no ma tter what type of review, and irrespective of the
Department’s adequacy determination, at the e nd of the day all roads lead to a likely dumping
determination, whether through application of the mandatory waiver provisions or the presumption
established by checklist criteria of the SAA and Sunset Policy Bulletin.

39. The evidence speaks for itself. The United States has implemented a complicated sunset
review scheme. Yet, from a results standpoint, it does not really matter whether the Department
issues a likelihood determination pursuant to applic ation of the waiver provisions, or through the
application of the checklist criteria (whether in an expe dited or full sunset review). It does not matter
that under the regulations a substantive response may contain “any other relevant information or
argument that the party would like the [Department] to consider.” And it does not matter that
respondent parties are afforded opportunities to su bmit comments. Despite the US assertions to the
contrary, there simply is no meaningful opportunity for respondents to participate in sunset reviews.

40. In addition to the inflexible application of the waiver provisions, Argentina’s review of the
Department’s sunset determinations leads to the conclusion that the Department applies a presumption
in favour of finding likely dumping that no party has ever overcome. The Appellate Body in Steel
from Germany explained that while it would be difficult for a single case to serve as conclusive
evidence of the Department’s practice as such violating US WTO obligations, a comprehensive
examination of all US sunset reviews and an analys is of the methodology used by the Department in
those reviews might provide such an evidentiary basis. (Appellate Body Report, Steel from Germany,

para. 148.) The Appellate Body fu rther explained that a violation might be established by “evidence
of the consistent application of such laws” and that “the nature and the evidence required to satisfy the
burden of proof will vary from case to case.” (para. 157).

41. ARG-63 embodies the results of Argentina’s revi ew of all of the Department’s sunset reviews
that were undertaken in order to provide empirical evidence in support of its claims. As of September
2003, the Department of Commerce had conducted 291 sunset reviews of anti-dumping duty orders.
Argentina has analyzed all 291 of these sunset reviews and has recorded the Department’s findings for
each in ARG-63. A perfect record of likely dumpi ng in all cases in which the US industry has shown
the slightest interest can in no way be considered to constitute a meaningful – or WTO-consistent –
“determination” for the purposes of Article 11.3.

B. T
HE DEPARTMENT’S SUNSET REVIEW OF OCTG FROM ARGENTINA
42. Key facts. The only Argentine exporter ever investigated in the case was the company,
Siderca. Siderca was the only expo rter investigated in the original 1994 investigation (as it was the
only investigated party also in 1984 and 1985 anti-dumping investigations, and in several
administrative reviews under US countervailing duty law). Siderca had not shipped any OCTG to the
United States for consumption during the relevant peri od for purposes of the sunset review. Siderca
stated this to the Department in its substantive response in the Department’s sunset procedure.
Siderca made similar “no-shipment” representations during each of the relevant administrative review
periods. The Department conducted “no-shipment” reviews and in each instance verified Siderca’s
claims that the company had not exported OCTG to the United States. Curiously, the US First
Submission states that “No administrative review s of the anti-dumping duty order on certain OCTG
from Argentina were requested or conducted prior to the sunset revi ew” (para. 48). However, four
reviews were requested, even though they were resc inded when the Department verified the lack of
consumption imports from Siderca.
6

43. However, in the sunset review, the Department ’s import data showed the existence of some
Argentine OCTG imports to the United States. Be cause Siderca’s total exports of OCTG to the
United States (zero exports) were less than 50 per cent of what was presumed to be OCTG exports
from Argentina to the United States, the Depa rtment determined Siderca’s response to be
“inadequate.” (ARG-50). In this sense, Argentina’s treatment in the sunset review depended entirely
on the assumption that the US statistics were correc t, that there were other exports from Argentina,
and that these alleged other exports were relevant enough to trigger a waiver and/or expedited review
under the US law and regulations. In fact, the US industry never alleged the existence of other
Argentine exporters, the Department never reviewed or investigated other Argentine exporters, and
the Department discovered through its own review that the statistics in fact had incorrectly recorded
non-consumption entries as consumption entries.

44. Application of Waiver Provision to Siderca. The Department then determined that because
Siderca’s response was deemed to be “inadequate,” the company was similarly deemed to have
“waived” its right to participate in the sunset review. I quote from the Issues and Decision
Memorandum at 4-5 (ARG-51)(“In the instant reviews, the Department did not receive an adequate
response from respondent interested parties. Pursuant to section 351.218(d)(2)(iii) of the Sunset
Regulations, this constitutes a waiver of participation.”). (See Chart 1)

45. Now let’s look at what the United States has sa id in its First Submission to this panel. The
United States argues that the Department did not deem Siderca to have waived its participation in the
sunset review of OCTG from Argentina (US First Submission, paras. 211- 213). Buried in
footnote 216, the United States does concede ambiguity: it states that “although based on this

6 See Exhibits ARG-28, ARG-32, ARG-37, and ARG-41 for the reviews. See also ARG-29, ARG-36,
ARG-38, and ARG-43 for the outcomes.

language it may appear that Commerce deemed all res pondents interested parties to have waived their
participation in the OCTG sunset review…” The United States says instead that there were other

Argentine exporters who did not respond at all to the notice of initiation. In paragraph 146, the
United States tells us that such a failure to respon d has the consequence of a waiver, which, under the
statute mandates an affirmative determination of continuation or recurrence of dumping. Let us return
to Chart 2, where we see that a failure to respond leads directly to waiver of participation, for which
the statute then mandates an affirmative likelihood determination, without any substantive review.

46. Thus, under the theory expressed in this part of the US First Submission (which is different
than what the United States says in another part), the exporters considered to account for all exports of
Argentine OCTG to the United States waived their pa rticipation by failing to respond to the notice of
initiation, and the Department therefore had no choi ce but to follow the statutory mandate to make an
affirmative finding of likely dumping in this case. If this is true, how can the United States now
contend that the waiver provision did not affect Side rca, or that it did not diminish Argentina’s rights
under Article 11.3?

47. Why waiver violates Article 11.3. The US waiver provisions violate Article 11.3 because
they mandate a finding of likely dumping. Articl e 11.3’s requirement to conduct a “review” and
make a “determination” precludes the authority from mandating statutorily an affirmative finding of
likely dumping. If the WTO Member wishes to invoke the exception and continue the measure, it
simply does not have the choice of doing nothing, or of passively assuming that dumping and injury
would likely continue or recur. ( See Panel Report, Sunset Reviews of Steel from Japan , DS244,
para. 7.177.) The authority must take action and ground its determination on a “sufficient factual
basis” to allow it to “draw reasoned and adequate conclusions concerning the likelihood” of
continuation or recurrence. (Id.) The authority mu st make a “fresh determination” that is forward-
looking and “based on credible evidence.” (Appellate Body Report, Steel from Germany, para. 88.)

48. Additionally, waiver violates Articles 6.1 and 6.2. The application of the waiver provisions
in the Argentine case violated Article 6.1 becaus e it prevented the only known Argentine exporter,
Siderca, from presenting evidence for meaningful consideration. Siderca had notified the Department
of its desire to participate in the sunset review and its willingness to cooperate fully by filing a
complete substantive response to the Department’s notice of initiation. Neve rtheless, the Department
deemed Siderca to have waived its participation and thus issued a determination that dumping was
likely pursuant to the statutory mandate of 19 USC. § 1675(c)(4)(B). Accordingly, by issuing a
determination of likelihood without any analysis and without meaningful consideration of the
information submitted by Siderca, the Department de nied Siderca an “ample opportunity to present . .
. evidence which [it] considered relevant . . . .”

49. The United States attempts to cast the waiver provisions as an “efficiency” mechanism that
enables the Department to save resources where respondent interested parties choose not to participate
in the Department’s sunset review. (US First Submission, paras. 148-49) Casting the function of the
waiver provisions as a vehicle for saving resources is not persuasive. Purported efforts to save
administrative resources can in no way negate a Member’s obligations under the Agreement.

50. The point is that Article 11.3 imposes an obligation on the Member maintaining an anti-
dumping measure to conduct a review and make a determination of both li kely dumping and likely
injury in order for it to maintain that measure. If the national authorities are not willing to expend the
resources necessary to satisfy their obligation to make a WTO-consistent “determination,” then they
must terminate the measure. Also, it must be noted that the Anti-Dumping Agreement provides only
one mechanism for the treatment of respondents who do not participate or who are not cooperative:
Article 6.8 and Annex II provide the limited circumstances in which a Member may make a decision
based on facts available for such parties. Thus, an additional so-called efficiency mechanism, that
statutorily mandates a finding of a likelihood of a continuation or recurrence of dumping, is not
permitted.

51. Finally, it must be stated that, in the name of “efficiency,” the United States has applied the
waiver provision in 167 of its 291 sunset reviews. In Argentina’s view, this is something other than
efficiency.

1. The Department’s decision to conduct an expedited review
52. The Department’s determination cites both the “waiver” provisions (19 USC. § 1675(c)(4)(B)
and 19 C.F.R. 351.218(d)(2)(iii)) and the “facts available” provision (19 C.F.R. §
351.218(e)(1)(ii)(C)). The Department’s determination purports to rely on both provisions. However,
there is no basis under US law for the simultaneous application of these provisions to a single
respondent. Indeed, these provisions are mutually exclusive. ( See discussion in Argentina’s First
Submission, para. 100).

53. Putting aside the unambiguous language that the Department deemed Siderca’s inadequate
response to constitute “wai ver” of participation ( Issues and Decision Memorandum , ARG-51 at 5),
and despite language in its determ inations regarding the application of facts available (ARG-51 at 3),
the United States asserts that the Department did not apply facts available against Siderca. (US First
Submission, paras. 214, 221, 234-36.) Again, the answer that the United States provides in its First
Submission lies in the so-called “non-responding Argentine respondents;” that is, companies other
than Siderca who never responded to the invitation to file a substantive response.

54. Here, the United States enters into a series of contradictions. First, the US assertion runs
counter to the language in the Department’s determination. In the Department’s determination to
conduct an expedited review, it noted that “[d]uring the five-year period from 1995 to 1999, the
combined-average annual percentage of Siderca’s exports of OCTG to the United States with respect
to the total of exports of the subject merchand ise to the United States was significantly below
50 per cent.” (ARG-50) Based on this finding, the Department determined Siderca’s substantive
response to be “inadequate” under 19 C.F.R. § 351. 218(e)(1)(A)(i) and thus conducted an expedited
review pursuant to 19 C.F.R. § 351.218(e)(1)(C)(2). (ARG-51) (Issues and Decision Memorandum at
3, 7) (“the Department determined Siderca’s substantive response to be inadequate;” and “Siderca did
not provide adequate substantive responses.”); Determination to Expedite at 2 (ARG-50)(“we
recommend that you determine Siderca’s response to be inadequate”). Based on such statements in
the key documents explaining the Department’s actions, it is hard to understand how the United States
can say in its First Written Submission that Siderca’s response was not inadequate (para. 225, 237),
and that it did not apply facts available to Siderca.

55. Second, according to the Department’s sunset re gulations, if the respondent interested parties
have provided an inadequate response, the Department will normally conduct an expedited review and
issue its final results “based on the facts available[.]” (19 C.F.R. § 351.218(e)(1)(ii)(C); see also
19 USC. § 1675(c)(3)(B).) Section 351.208(f)(2) provides that the “facts available” consist of
dumping margins from prior determinations and information contained in parties’ substantive
responses. Again, this is precisely what the Department’s Issues and Decision Memorandum says that
it did, but which the United States now says that it did not do.

56. Third, the US explanation in its First Written Submission at paragraphs 214, 216, and 233 that
facts available was applied to th e “non-responding respondents” is flatly inconsistent with its
explanation in paragraph 146 that the waiver provisions applied to the “non-responding respondents.”
If the waiver provisions applied, then there was no need to apply facts available.

57. The Panel and Argentina deserve a straight answer from the United States to two critical
questions: (1) was Siderca’s response adequate (in the proceeding, the United States expressly said
no, and now it says yes); and (2) what happens when non-responding respondents do not respond to
the notice of initiation (the United States says in paragraph 146 that the waiver provisions apply,

resulting in a mandatory affirmative finding, and the United States asserts in paragraphs 214, 216, 233
that they apply facts available to these companies).

58. Argentina submits that the Panel must review the decisions taken by the authorities, as
explained by the authorities at the time they took the decision, and not as they later attempt to justify
these decisions. Based on the statements in the Department’s determinations, there can be no serious
dispute that the Department: (1) determined Side rca’s response to be inadequate; (2) applied the
waiver provisions to Argentina; and (3) made the lik ely dumping determination, at least in part, based
on the conduct of a expedited review and application of facts available. These actions by the United
States were unjustified by the facts and objectivel y unreasonable, and in substance they violated
Articles 11.3, 2, 6.8, 6.1 and 6.2, and Annex II.

59. With respect to the facts, there was no reasonable basis for the Department to have considered
that there were other Argentine producers/e xporters, and that the failure of these other
producers/exporters to respond justified the decision to expedite the review and resort to “facts
available.”

(a) Siderca was the only Argentine producer/exporter investigated in the original
investigation, and it was the only producer /exporter named in the subsequent reviews
requested by the US industry. During the five-year period after imposition of the
order, the domestic industry requested four administrative reviews, naming Siderca as
the only exporter each time. (ARG-28; ARG-32; ARG-37; ARG-41.) In at least one
case, the representatives of the US indust ry identified Siderca as “the only know[n]
producer” of the subject merchandise. (ARG-58). The Department initiated an
administrative review in each year, but ultimately rescinded the reviews because there
were no shipments to evaluate. (ARG-29; ARG-36; ARG-38; ARG-43.) In all of
these instances, however, Siderca’s “no sh ipment certifications” led to additional
questions from the Department and additional comments from the US industry. In all
cases, Siderca explained that it was shipping to the United States, but that all of its
shipments were either non-subject mercha ndise, or were not entering the United
States for consumption in the United States . In all cases, the Department ultimately
agreed with Siderca’s certification that it made no shipments for consumption in the
United States of subject merchandise, and therefore rescinded the annual reviews.
(b) Further, the record developed in the Depa rtment’s sunset review indicated that
Siderca was the only producer/exporter of the subject merchandise. In its substantive
response, Siderca indicated that it was the only producer of seamless OCTG, and, to
its knowledge, it was the only producer/exporter of Argentine OCTG. The
Department acknowledged these statements (while misstating them slightly) by
stating that “Siderca asserts that it is the onl y producer of OCTG in Argentina, and to
its knowledge, there is no other producer of OCTG in Argentina.” (ARG-50 at 2).
Thus, at the very least, the record developed by the Department casts doubt on the
statistics relied upon by the Department for the adequacy determination. It is not
clear why the Department chose to believe the statistics, instead of its understanding
of Siderca’s position.
(c) The Department had reason to doubt its data. On previous occasions, the Department
concluded that the official statistics contained errors, in one case incorrectly
classifying non-consumption entries as consumption entries (ARG-36 at 40,090), and
in another case misclassifying mechanical pipe as OCTG (ARG-43 at 8949).
60. From this record, it is not reasonable for th e Department to have assumed that there were
other Argentine producers/exporter s who should have responded to the initiation notice, and whose
failure would have such consequences for Argentina’s rights under Article 11.3. This unfounded

assumption had dire consequences fo r Argentina as it resulted in the deemed waiver of Siderca. In
any event, whether the determination is based on waiver, or is made on the basis of the checklist
criteria (whether in an expedited or full review), the outcome is the same – a determination of likely
dumping.

61. The Department’s conduct of an expedited re view, its application of the checklist
criteria, and its reliance on facts available violated Article 6.8 and Annex II. “Facts available”
can be used only as a last resort when investigating authorities are faced with recalcitrant and
uncooperative parties. Accordingly, Article 6.8 and Annex II permit an investigating authority to
make determinations based on “facts available” only when an interested party “refuses access to, or
otherwise does not provide, necessary information within a reasonable period or significantly impedes
the investigation.” In this case, however, Si derca provided all information required by the
Department’s sunset regulations in its substantive response to the no tice of initiation. Thus, Siderca
was not an uncooperative party. Nevertheless, the Department considered Siderca’s complete
substantive response to be inadequate based on the 50 per cent test and thus determined to conduct an
expedited review on the basis of the facts available pursuant to the statute and regulation. In doing so,
the Department violated Article 6.8 and Annex II, because these provisions do not permit the
application of facts available to a cooperative respondent. Even worse, there was no determination
that Siderca failed to co operate. Moreover, the Department faile d to notify the parties of “essential
facts” forming the basis of its decision, as required by Article 6.9.

62. As for the US argument in its First Submission that it used facts available only for the non-
responding Argentine respondents, there is no support for this statement in the sunset determination.
The concept of non-responding Argentine respondents is never even mentioned directly in the sunset
determination. Even if they had been mentioned, it was not a reasonable and objective assessment of
the facts to consider that such parties existed and to condition Argentina’s rights in this way without
further investigation.

63. The Department’s conduct of an expedite d review and reliance on facts available
violated Articles 6.1 and 6.2. Argentina was surprised by the Department’s adequacy determination,
and the resulting determination to conduct an expedited review based on facts available. The only
investigated Argentine exporter had filed a complete substantive response, and had indicated that it
would cooperate fully in the Department’s review. Further, the Department had direct knowledge that
official statistics had been demonstrated to be incorrect in the past. Again, the Department’s failure to
provide notice of the “essential facts” forming the basi s of its decision to conduct an expedite review
based on facts available was inconsistent with Article 6.9.

64. The United States argues that, by limiting its substantive response to a “mere” four pages in
length and not taking advantage of other opportunities to submit comments, Siderca failed to fully
avail itself of the opportunities granted by the sunset regulations for the presentation of evidence. (US
First Submission, paras. 228-29, 237). In addition to the substantive response to the notice of
initiation, the United States explains, Siderca coul d have submitted comments on the Department’s
adequacy determination (19 C.F.R. § 351.309(e)) and rebuttal comments to any other party’s
substantive response (19 C.F.R. § 351.218(d)(4)). Therefore, the United States concludes, the
Department’s sunset review of Argentine OCTG was not inconsistent with Articles 6.1 and 6.2.

65. The US argument fails for several reasons. First, contrary to the US assertion, Siderca did not
fail to take the opportunity to present evidence. As the United States repeatedly recognizes, Siderca’s
response to the notice of initiation was a “compl ete substantive response” that met all of the
Department’s regulatory requirements. (US First Submission, paras. 211, 213, 214, and 216). The
Department thus received what it considered to be the requisite information to make the likelihood
determination. Having submitted a “complete substantive response” and having offered to cooperate
fully, Siderca could not have been expected to know that something more was necessary in order to
have the Department undertake a substantive evaluation of whether dumping would be likely to

continue or recur. Under Annex II, it was the Department’s obligation to “specify in detail the
information required” from Siderca.

66. Second, regarding the Department’s adequacy determination, the regulation provides that
submitted “comments may not include any new factual information or evidence
 (such as
supplementation of a substantive response to the notice of initiation) and are limited to five pages.”
(19 C.F.R. § 351.309(e) (emphasis added). Thus , the regulation precluded Siderca from submitting
any new evidence with respect to the Department’s determination that Siderca’s response was
inadequate.

67. Third, by the time that the Argentine s unset review began, it was well-known that the
Department had designed and implemented a syst em which avoided any type of substantive
determination. Hence, respondent participation was widely considered to be futile. The analysis done
by Argentina for the purposes of this panel proceeding confirms the widely-held perceptions at the
time: in every sunset review in which the domestic industry participated, the Department limited its
“analysis” to the SAA and Sunset Policy Bulletin checklist criteria and found a likelihood of dumping.
Consequently, it would not have mattered wh ether Siderca had submitted comments to the
Department’s adequacy determination, rebuttal comments, or had been granted a full review. By not
truly considering all evidence submitted, the Departme nt denies foreign interested parties an ample
opportunity to present evidence and fully defend thei r interests, contrary to the obligations established
by Articles 6.1 and 6.2. Despite US protestations to the contrary, the United States is well aware of
the fact that even if Siderca availed itself of other opportunities to submit comments, the outcome
would have been the same. The United States cannot credibly argue that a more active intervention
by Siderca would suddenly have tilted the record from 217/0 to 216/1.

2. The substantive basis for the Department’s Likelihood of Dumping Determination
violated Article 11.3
68. Let us now turn to the stated substantive basis of the Department’s likelihood of dumping
determination. As noted above, the Department did no t gather or evaluate additional facts at the time
of the sunset review, but instead based its decision that dumping would likely continue or recur only
on the following facts available: (1) the 1.36 per cent dumping margin calculated for Siderca in the
original investigation, and (2) the fact that Siderca had ceased to ship OCTG to the United States. (See
Issues and Decision Memorandum at 5 (ARG-51). This is the sum total of what the European
Community aptly characterized in their Third Part y Submission as the “meagre crumb” of evidence
supporting this likely dumping determination.

69. This does not constitute the “sufficient fact ual basis” for the substantive and meaningful
determination required by Article 11.3. For se veral reasons, the Department’s reliance on the
1.36 per cent dumping margin established in the original investigation in 1995 cannot serve as a basis
for the Department’s determination that dumping would be likely to continue or recur.

• First, the rate is historic, with no relationshi p whatsoever to the forward-looking determination
required to invoke the exception of Article 11.3 and continue the measure. The United States
has still never offered a logical explanation of wh at this rate says abou t future dumping, let
alone the likelihood of future dumping.

• Second, in the original investigation, the Department calculated the 1.36 per cent margin based
on the practice of zeroing negative margins. In fact, without the zeroing practice, there would
have been no dumping margin at all, and th ere would have been no measure to review.
7 The
Appellate Body has held that zeroing negative ma rgins is inconsistent with Article 2.4.2 of the

7 See on that issue, the Third Party Submissions of European Communities (paras. 79-89) and Japan
(paras. 22-28).

Anti-Dumping Agreement. ( See Appellate Body Report, Bed Linen from India , para. 55.)
Accordingly, the Department cannot rely on a WTO-inconsistent margin as a basis for a
determination of likelihood of dumping under Article 11.3.

70. In order to establish in a sunset review wh ether it is necessary to maintain an anti-dumping
measure, the authority will have to make a finding of likely dumping. To know whether dumping
would likely “continue” or “recur” under Article 11. 3, an authority must have current information
about dumping. 8 In other words, it becomes necessary to determine if dumping exists in order to
assess its probable continuation. Alternatively, it becomes necessary to determine the absence of
dumping in order to asses prospectively the probability of recurrence. The Department’s reliance on
the 1.36 margin from the original investigation cann ot satisfy either possibility. The United States
argues that the Department determined that “dumping continued to exist throughout the history of the
order . . . .” (US First Submission, para. 218.) The Department, however, had rescinded each of the
four administrative reviews of Siderca following the order, and thus did not have evidence of
dumping margins throughout the history of the order. All it had was the five year-old margin from the
original investigation – with a razor thin dumping margin, calculated on the basis of a WTO-
inconsistent zeroing practice. There was no evidence that dumping continued after the issuance of the
order and, consequently, the five-year old dumping margin could not provide the basis for a
determination that dumping would be likely to “continue.”

71. Indeed, particularly in the facts of this ca se, where the Department relied on Siderca’s small
dumping margin of only 1.36 percent, the Department had an obligation to gather and evaluate
“persuasive evidence” in order to justify its determination of likelihood of dumping. As the Appellate
Body has ruled, “mere reliance” on the determination made in the original investigation is not enough.
(See Appellate Body Report, Steel from Germany, para. 88.). This reinforces Argentina’s view of the
extreme and unfair situation presented in this case.

72. The likely margin of dumping of 1.36 per cent determined by the Department and
reported to the Commission violated Articles 2 and 11.3. The Department determined that if the
order were revoked, the likely dumping margin to prevail would be 1.36 per cent. The Department
reported this margin to the Commission for purposes of the Commission’s sunset review and its
likelihood of injury determination. Because the 1.36 per cent was inconsistent with Article 2 (because
it was based on the WTO-inconsistent practice of zeroing negative margins), and additionally
constructed on the basis of the Department’s “circumstance of sale” adjustment
9, the Department’s
determination that this margin constituted the likely margin to prevail violated Articles 11.3 and 2.

73. The United States notes that the Departme nt’s reporting of the likely margin to the
Commission in a sunset review is a construct of US law, rather than a requirement of Article 11.3.
(See First Submission by the United States at para. 267.) Consequently, the United States argues, the
Department’s reporting of the 1.36 per cent margin to the Commission was not inconsistent with
Article 11.3. This argument cannot be accepted. Once a Member undertakes either to calculate a
dumping margin or to rely on a dumping margin , that margin must be consistent with the
requirements of Article 2. In the case at hand, since the United States did not make a WTO-consistent
determination that dumping would be likely to cont inue or recur, it was requi red to have terminated
the measure.

8 See also Third Party Submission of the European Communities (para. 12).
9 See Argentina’s First Submission, footnote 14.

C. S
IDERCA’S CASE CONSIDERED IN THE OVERALL CONTEXT OF THE IMPLEMENTATION OF
ARTICLE 11.3 BY THE UNITED STATES AND THE DEPARTMENT’S CONSISTENT SUNSET
PRACTICE
74. As is evident from the foregoing, the Department’s sunset determination did not come close
to satisfying the requirements of Article 11.3 and the substantive standards incorporated therein. The
sunset review of OCTG from Argentina is not unique in this respect. Viewed in the context of
consistent US practice in sunset reviews by the Department, the Argentine experience is,
unfortunately, all too predictable and consistent.

75. First, as noted previously, the Department applied the waiver provisions in 167 sunset
reviews, 77 per cent of the sunset reviews in which the domestic industry participated. In all of these
cases, the Department issued a finding that dumping would likely continue or recur pursuant to the
statutory mandate (See ARG-63).
10

76. In all 217 sunset reviews in which at least one domestic interested party participated, the
Department rendered an affirmative likelihood determ ination. Domestic indust ry participation is the
only determinative factor in a Department sunset review. No matter what type of sunset proceeding is
undertaken by the Department, the Department does not conduct the “review” and “determination”
required by Article 11.3. The results are pre-ordained when the US in dustry participates. Indeed, the
Department found that termination of the order wo uld be likely to lead to continuation of dumping
even where the producer could no longer export to the United States because its sole production
facility was destroyed as a result of military acti on and, in any event, tr ade sanctions prevented
imports into the United States.11

77. The Department’s rigid adherence to the mandate of the SAA and the Sunset Policy Bulletin
limits its likelihood “analysis” solely to a mechanical review of: (1) the existence of dumping
margins from the original investigation or subseque nt administrative reviews; (2) whether imports of
the subject merchandise ceased after issuance of the order; and (3) whether dumping was eliminated
after imposition of the order and import volumes declined significantly.

78. The Department’s “consistent application of ” these checklist criteria in the SAA and the
Sunset Policy Bulletin in its reviews demonstrates the mandatory nature of these instruments.
Nevertheless, the United States ta kes the position that there is no i rrefutable presumption of likely
dumping in the Department’s practice. (Para. 172.)

79. As noted previously, the United States has not cited a single case in which the domestic
industry participated in a DOC sunset review and the Department determined that dumping would not
be likely.

80. The United States argues that there were only 35 “contested cases.” (Para.151.) The US
argument again misses the point.

10 See, e.g., Antifriction Bearings from Sweden , 64 Fed. Reg. 60,282, 60,284 (1999)(ARG-63, Tab 6);
Ball Bearings from Singapore , 64 Fed. Reg. 60,287, 60,289 (1999)(ARG-63, Tab 11); Aspirin from Turkey, 64
Fed. Reg. 36,328, 36,330 (1999)(ARG-63, Tab 14)). For ex ample, in the final results of the sunset review of
antifriction bearings from Sweden, the Department stated, “[G]iven that . . . respondent interested parties have
waived their right to participate in this review before the Department, we determine that dumping is likely to
continue if the orders were revoked.” ( Antifriction Bearings from Sweden , 64 Fed. Reg. 60,282, 60,284
(1999)(ARG-63, Tab 6).
11 Industrial Nitrocellulose from Yugoslavia, 64 Fed. Reg. 57,852 (Dep’t Comm. 1999)(final results
sunset review) (ARG-42).

81. First, the premise of the US argument is fundamentally flawed because participation by
respondents is an irrelevant factor given the SAA/ SPB checklist criteria and the presumption that has
never been refuted in the Department’s sunset reviews when the domestic industry was interested.

82. Moreover, the substantive rights of WTO Me mbers under Article 11.3 cannot be conditioned
upon the actions of private sector exporters. Ar ticle 11.3 places an affirmative obligation upon a
Member to terminate anti-dumping measures in five years unless that Member makes specific
findings based on positive evidence. In the event that a company fails to cooperate, then Members
would be subject to the disciplines of Article 6.8 and Annex II.

83. More importantly, however, even using the US erroneous figures,
12 35 out of 35 still proves
Argentina’s claim. These are still “unbeatable odds .” Moreover, of these, the Department has
conducted 28 full sunset reviews. In each case, the Department found that dumping would likely
continue or recur upon expiry of the order. Argentina has satisfied its burden of establishing a prima
facie case demonstrating the presumption employed by the Department in sunset reviews has never
been refuted in cases in which the domestic industry participates.

84. Underneath the clutter. It is easy to get lost in the procedural rules the United States has
created in its law. Yet, from a results standpoint, the framework does not matter. Through the waiver
provisions or application of the ch ecklist criteria (whether in an expe dited or full sunset review), the
Department issues a determination that dumpi ng would be likely to continue or recur. At the end of
the day, there is only one variable that matters in the whole of the US sunset regime governing
Department sunset reviews: whether the domestic industry participates in the sunset review. In
all 217 sunset reviews (including Argentina’s review) in which at least one domestic interested party
participated, the Department rendered an affirmative likelihood determination.

85. That domestic industry participation is the only determinative factor in a Department sunset
review demonstrates that – despite the statut e, regulations, and the Department’s purported
consideration of parties’ arguments – the Department does not truly engage in a meaningful analysis
based on adequate evidence of whether dumping would likely continue or recur upon termination of
the order. No matter what type of sunset proc eeding conducted by the Department, the Department
does not conduct the “review” and make the “det ermination” required by Article 11.3 and the
substantive provisions of the Anti-Dumping Agreement.

IV. THE COMMISSION’S SUNSET REVIEW
86. We now turn, Mr. Chairman, to the aspect of the case involving injury. Let us recall that
injury is a common term in the implementation of GATT Article VI. Injury retains this essential
meaning in Article 11 of the Anti-Dumping Agreemen t. In Article 11.3, injury is a fundamental
precondition to the continuation of the order. That is, a Member must find a likelihood that injury
will continue or recur before it can continue a measure beyond 5 years.

87. Article 11.3 requires a finding of likely injury based on an objective examination of positive
evidence, and the obligation in Article 11.3 cannot be satisfied by a finding that recurrence of injury is

12 In any event, there were actually 43 cases in which the likelihood of dumping determination was –
using the US term – “contested.” Argentina’s Exhibit ARG-63 shows that the response from foreign interested
parties was deemed adequate in 28 cases and inadequate (based on a foreign party’s attempt to participate) in
17 cases. Thus, foreign interested parties attempted to participate in 45 Department sunset reviews. In 2 of
these cases, however, the domestic industry withdrew from the proceeding. Thus, the foreign and domestic
parties “contested” the likelihood determination in 43 sunset reviews.

one of several possibilities, without reaching the point of being “likely”. That is precisely what
happened in this case.

A. T
HE COMMISSION GENERALLY DOES NOT APPLY THE “LIKELY” STANDARD REQUIRED BY
ARTICLE 11.3
88. Let us first turn to the likely standard.

89. At the outset, Argentina submits that the United States should not be surprised that its trading
partners are challenging the Commission’s interpre tation of the word “likely,” or the Commission’s
implementation of this aspect of the Article 11.3 obligation. The Commission has been subject to
criticism and has been challenged in US courts for its incorrect interp retation of the term “likely.”
There have been several challenges to the Commission’s “likely” standard in the US courts, and the
decisions have been consistent: in none of these cases was the Commission’s original sunset decision
upheld as correctly applying a “likely” standard.

90. The United States takes the position before th is panel that the Commission applied a correct
standard in the sunset determination of Argent ine OCTG. The United States contends that the
Commission is applying the correct standard, noting that US law uses the same term – “likely” – that
appears in Article 11.3 (para. 282). The United States contends that “[i]t is incorrect to conclude that
‘likely’ can only mean ‘probable’ and cites secondary definitions of “ likely” that appear to convey a
degree of certainty that is less than “probable” but more than “possible.” (US First Submission,
para. 282 n.300) Moreover, the Commission has argued be fore US courts that “likely” does not carry
its ordinary meaning of probable and that “the term ‘likely’ captures a concept that falls in between
‘probable’ and ‘possible’ on a continuum of relative certainty.”
13

91. Argentina recognizes that US law uses th e same term “likely” as in the Anti-Dumping
Agreement. However, the similarities stop there. The application of the likely standard to the facts of
this case demonstrates the violation of Articles 3 an d 11.3. Argentina will re view the application of
the standard to the facts of this case later in our presentation.

92. However, with respect the standard, we have to recognize that the US position as to the
meaning of the term “likely” has changed again. In Steel from Germany and DRAMS from Korea the
United States accepted that “likely” means “probable.” The distinctions that the United States now
tries to draw between the meaning of the terms likely and probable is inconsistent with the position
the United States has taken in the WTO and is not tenable.

93. The United States tries to diminish the impor tance of these shifting positions in the sunset
reviews, the US courts, and the WTO. This is so especially regarding the US litigation of the one case
which has completed the first stage of judicial review, where the United States contends that the court
ultimately approved the Commission’s sunset determ ination, and that the result did not change from
the original determination. But this argument mi sses the point. This acceptance of the Commission’s
finding was possible only after
 the court insisted that the term likely means probable, and that the
Commission had to change its analysis to apply a lik ely, or probable, standard. Far from helping the
US position, the affirmance of the remand determination only serves to emphasize the point that the
Commission applied the wrong standard and that the result could only be sustained after the
Commission fixed its decision.

13 See Usinor Industeel, S.A. v. United States , No. 01-00006, slip op. 02-152 at 4-6 (CIT
20 Dec. 2002)(ARG-16); Nippon Steel Corp. v. United States , No. 01-00103, slip op. 02-153 at 6-7 (CIT
24 Dec. 2002).

B. ARTICLE 3 OF THE ANTI-DUMPING AGREEMENT APPLIES TO ARTICLE 11.3 REVIEWS
94. With this background, we turn to the question of what must be “likely.” For Argentina and
the other trading partners involved in this proceeding, the answer is clear: the answer is “injury,”
which can only be injury as defined under the te rms of the Anti-Dumping Agreement. For the United
States, the issue is not so clear, and injury in Artic le 11.3 has a unique meaning, which is something
different than injury as defined in Article 3.

95. Article 3 defines “injury” as that term is used throughout the Anti-Dumping Agreement.
Thus, an authority’s determination under Article 11.3 of whether “injury” would be likely to continue
or recur must satisfy the requirements of Article 3.

96. Footnote 9 states: “Under this Agreement
 the term ‘injury’ shall, unless otherwise specified,
be taken to mean material injury to a domestic in dustry, threat of material injury to a domestic
industry or a material retardation of the establishmen t of such an industry and shall be interpreted in
accordance with the provisions of this Article .” The Appellate Body used the SCM equivalent of this
very footnote as an illustration of how the injury concept applies throughout the Agreement, including
in sunset reviews. (See Appellate Body Report, Steel from Germany, para. 69, n.59.)

97. The US contention that Footnote 9 is a mere “drafting device” designed to avoid the need to
recite each of the three distinct forms of injury th roughout the agreement is unpersuasive. The Panel
in DRAMs from Korea noted “that, by virtue of note 9 of the [Anti-Dumping] Agreement, the term
‘injury’ in Article 11.2 ‘shall be interpreted in accordance with the pr ovisions of Article 3.” (Panel
Report, DRAMs from Korea , Para. 6.59 n.501; see also Panel Report, Sunset Review of Steel from
Japan, para. 7.99). The United States has not offered any reasons for why injury for purposes of
Article 11.2 should be treated differently than injury for purposes of Article 11.3.

98. Nor does the United States attempt to explai n how injury in Article 11.1 could possibly be
different from injury in Article 3. Article 11.1 states that “An anti-dumping duty shall remain in force
only as long as and to the extent necessary to count eract dumping that is causing injury.” There is no
suggestion that the drafters of the Agreement intended in Article 11.1 anything other than injury as
defined in Article 3 and specified in footnote 9. And there can be no question that the overarching
principles of Article 11.1 provide the immediate cont ext of Article 11.3. Is the United States saying
that injury for the purposes of Article 11.3 is different than injury as referenced in Article 11.1?

99. The Panel in DS244 (another case involving Article 11.3) stated that:

The term ‘injury’ as it appears throughout the Anti-Dumping Agreement – including
Article 11 – is to be construed in accord ance with this footnote, unless otherwise
specified. This would seem to support th e view that the provisions of Article 3
concerning injury may be generally applicable throughout the Anti-Dumping
Agreement and are not limited in application to investigations. Article 11 does not
seem to explicitly specify otherwise in the case of sunset reviews.”
100. It is difficult to understand, and runs counter to logic, that negotiators who demonstrated care
in choosing their words throughout the Agreemen t would define a term with such precision in
footnote 9, specify that it applies throughout the Agreement, and then change the meaning of the term
in Article 11.3 without being clear that the negotiators were doing so.

101. The US also raises the distinction between the “determination of injury” in an original
investigation and a “determination of the likely cont inuation or recurrence of injury” in a sunset
review. To the United States, the drafters intended a different kind of injury in Article 11.3. Again,
missing from the United States argument is any re ference to Article 11.1, which establishes the
overarching general principle limiting the duration of an anti-dumping duty, and linking the duration

to the same injury that was required in order to impose the duty. Article 11.3 does nothing more than
implement the principle of Article 11.1 in the specific context of a five-year review, and there is no
indication that a different concept of injury was intended by the drafters or accepted by the Members.

102. Thus, an authority’s determination of whether “injury” would be likely to continue or recur
under Article 11.3 must meet the requirements of Ar ticle 3. Article 3.1 mandates that the authority’s
“determination of injury” be based on “positive evidence” and “an objective examination” of the
likely volume of dumped imports and the effect of su ch imports on prices in the domestic market for
like products, and the likely impact of these impo rts on domestic producers of such products.
Articles 3.4, 3.5, 3.7, and 3.8 impose further obligat ions related to consideration of specific economic
factors and indices having a bearing on the state of the domestic industry, causation, and special rules
related to any future injury determinations.

103. In sum, Argentina views the issue as one of the fundamental disagreements between the
United States and other WTO Members involved in this proceeding. Does “injury” as used in
Article 11.3 differ from the meaning of “injury” as defined under the Agreement in footnote 9, and do
the substantive and procedural standards for eval uating injury contained in Article 3 apply to
determinations made under Article 11.3? Under the Agreement, the clear answer to both of these
questions is “yes.” Moreover, this is not merely Argentina’s view – the Third Parties similarly agree
that this interpretation is mandated by the Agreement.

C. T
HE COMMISSION’S APPLICATION OF A “CUMULATIVE” INJURY ANALYSIS IN THE SUNSET
REVIEW OF THE ANTI -DUMPING DUTY MEASURE ON ARGENTINE OCTG WAS INCONSISTENT
WITH ARTICLES 11.3 AND 3.3
104. Article 11.3 does not permit cumulation. A cumulative injury analysis under Article 11.3
would require an assessment of the combined lik ely effects of terminating multiple anti-dumping
measures. Article 11.3, however, pertains only to individual anti-dumping measures. This is clear
from the textual analysis of the provision and the object and purpose of the provision.

105. Pursuant to its terms, Article 11.3 applies to “any definitive anti-dumping duty” and requires
the “expiry of the duty.” In each reference, the drafters have chosen the singular and have avoided the
plural. In addition, the context of Article 11.3 re inforces the clear text that Article 11.3 prohibits
cumulation. Article 11.3 is an implementing provis ion of Article 11. Article 11.1, the umbrella
provision of Article 11.3, directs that “[a]n anti-dumping duty
 shall remain in force only as long as
and to the extent necessary to counteract dumping wh ich is causing injury.” Again, the drafters have
used the singular. Thus, on its face and interpreted within its context, Article 11.3 does not permit a
cumulative analysis of the likely injurious effects of multiple anti-dumping orders.

106. Through Article 3.3, the Anti-Dumping Agreement limits the use of a cumulative injury
analysis to “investigations,” and even then only where certain conditions are met. The fact that
Article 3.3 provides for the conditioned use of cu mulation in “investigations” but not in “reviews”
indicates that a cumulative injury analysis is not permitted in the likelihood of injury determination
made in an Article 11.3 review. It is difficu lt to understand why a textual limitation permitting
cumulation only in investigation should be interpreted differently that the concept of de minimis
which, according to the Appellate Body’s inte rpretation, applies only to investigations. 14 Indeed, the
United States embraced the Appellate Body’s rationale on this point.

107. The US violation of Article 11.3 is even more evident when one considers the extent to which
cumulation undermined Argentina’s rights under Article 11.3 in this case. Argentina, and each WTO
Member, negotiated for the right to have an anti-du mping measure affecting its exports removed after
five years, unless doing so would be likely to lead to continuation or recurrence of injury. Yet, the

14 See Appellate Body Report, Steel from Germany, paras. 68-69, 91-92.

United States never made such a finding in this case. The Commission never analyzed the effect of
removing the anti-dumping measure on Argentin e OCTG. Rather, the Commission performed a
cumulative assessment, which essen tially conditioned Argentina’s right under Article 11.3 upon the
actions of exporters from other WTO Members, and th e Commission’s interpretation of those actions.
There is no basis in the text of Article 11.3 or of the object and purpose of the provision to suggest
that Argentina’s right to have the anti-dumping measure expire was intended to be conditioned in this
way. Instead, Argentina has a right to expect termination, unless there is a finding based on positive
evidence that termination of the anti-dumping measure on Argentine OCTG (not all anti-dumping
measures on OCTG from other countries) would be likely to lead to a continuation or recurrence of
injury.

108. Finally, assuming arguendo that Articles 3.3 and 11.3 do not preclude cumulation in
Article 11.3 reviews, then the term s of Article 3.3 must be applied to any such cumulative analysis in
a sunset review. Indeed, the application of either the de minimis or negligibility requirements (both of
which must be satisfied) would have prevented cumu lation in the Commission’s sunset determination
of Argentine OCTG. The US rebuttal to Argentina’ s alternative argument relies on the premise that
Article 3 does not apply to sunset reviews under Ar ticle 11.3. As Argentina has noted, footnote 9
provides that “injury” under the Anti-Dumping Ag reement “shall be interpreted in accordance with
the provisions of … Article [3].”

109. The Commission’s use of a cumulated injury an alysis in the sunset review of OCTG from
Argentina was also inconsistent with Article 11.3, because it prevented the Commission from
applying the correct “likely” standard. In reach ing its decision to cumulate in this case, the
Commission considered whether imports fr om each subject source had any possible
 discernible
adverse impact on the domestic industry. ( Commission’s Sunset Determination at 6, 10-16.) The
Commission included the imports from Argentina in the cumulated injury analysis because it did not
find that the Argentine imports would have no discernible adverse impact on the domestic industry.
In other words, the Commission cumulated imports from Argentina on the basis of a finding that these
imports could have any possible adverse impact on the domestic industry. This low standard, cast in a
double-negative, runs directly counter to the “likely” standard established by Article 11.3. The United
States does not respond to this argument.

110. This use of a double negative formulation is contrary to the panel’s decision in DRAMS from
Korea. “Not unlikely” does not set the same standard as “likely.” Worse still, “no” discernible
adverse impact establishes a standard that is directly contrary to a “likely” standard. Under this
formulation, finding any discernible impact leads to cumulation, which as we see in this case can lead
to a finding of “likely” injury without regard to an y “positive evidence” relating to probable imports
from individual countries.

111. The Commission’s use of a “possibility” standard for cumulation also conflicts with the
reasoning of the Appellate Body in Steel from Germany , and the evidentiary requirements of
Article 3.1 of the Anti-Dumping Agreement. ( See Appellate Body Report, Steel from Germany ,
para. 81 (stating that “[i]t is unlikely that very low levels of subsidization could be demonstrated to
cause ‘material’ injury,” and that “[w]here the level of subsidization at the time of the review is very
low, there must be persuasive evidence that revocation of the duty would nevertheless lead to injury to
the domestic industry.”) Such a statement only ma kes sense if one presumes that cumulation is not
possible under Article 11.3.

112. As with the Commission’s failure to apply th e correct “likely” standard under Article 11.3,
the Commission’s decision to conduct a cumulative injury analysis demonstrates that the Commission
did not support its determination that injury would likely continue or recur upon termination of the
order on Argentine OCTG with a sufficient factual basis. It cannot seriously be argued that an
affirmative likelihood of injury determination co uld have been made with respect to Argentina
without a decision to cumulate the imports from several countries.

D. T
HE COMMISSION’S KEY FINDINGS DEMONSTRATE ITS FAILURE TO APPLY THE LIKELY
STANDARD
113. In order to determine whether the Commission satisfied the standards of Article 11.3, the
panel must consider whether the facts were properly established and whether the assessment of the
facts was objective.

114. In the recent compliance panel appeal in the Bed Linens case, the Appellate Body provided
additional guidance on the applicable standard under Article 17.6(i):

In US – Hot-Rolled Steel , we stated that “[a]lthough the text of Article 17.6(i) is
couched in terms of an obligation on panels . . . the provision, at the same time, in
effect defines when investigating authorities can be considered to have acted
inconsistently with the Anti-Dumping Agr eement.” We further explained that the
text of Article 17.6(i) of the Anti-Dumping Agreement, as well as that of Article 11
of the DSU, “requires panels to ‘assess’ the facts and this . . . clearly necessitates an
active review or examination of the pertinent facts.
”15
115. To do this, the panel will have to review the written submissions of the parties in detail. We
will not recount all of that evidence here.

116. Instead, we will focus on the volume findings in the Commission’s determination because
these findings appear to drive the Commission’s overall conclusion, and b ecause the Commission’s
analysis with respect to “likely volume” best illust rates what Argentina considers to be the problem
with the Commission’s analysis – that is, it relies on isolated factors that indicated that certain
outcomes were possible, rather than relying on posit ive evidence that certain events were likely to
continue or recur.

117. The Commission concluded “that the volume of subject imports [was] likely to increase
significantly in the event of revocation.” ( See Commission’s Sunset Determination at 19-20 (ARG-
54). The Commission made this conclusion de spite its recognition that the subject producers’
“capacity utilization rates represen t a potentially important constraint on the ability of these subject
producers to increase shipments of casing and tubing to the United States.” ( Id.) Despite the
existence of capacity constraints, the Commis sion determined that the subject producers had
“incentives to devote more of their productive capacity to producing and shipping more casing and
tubing to the US market.” ( Id.) The Commission based its conclusion that the subject producers had
“incentives” to ship more OCTG to the United States in the absence of the dumping measures on five
findings. Let’s review each of them.

118. Again, Argentina has prepared a summary char t (Chart 3) for ease of reference. Chart 3
summarizes each of the five so-called incentives that the Commission cited, and explains why these
“incentives” cannot defeat the positive evidence of ca pacity restraints, and cannot support a finding
that injury is likely to continue or recur.

119. First, the Commission found that, “[g]iven Tenaris’ global focus, it likely would have a strong
incentive to have a significant presence in the US market, including the supply of its global
customers’ OCTG requirements in the US market.” (Id. at 19.)

- With respect to Tenaris, the Commission only examines “half” the story.
Indeed, some of the companies forming the so-called Tenaris alliance were

 15 Appellate Body Report, Recourse to Article 21.5, Bed Linen from India, para. 163.

outside of the anti-dumping duty orders under review. Thus, there was no
incentive for the companies subject to the order to ship, given the existence
of members of the alliance outside of the order. Moreover, other companies
in the Tenaris alliance, such as Algoma, were not subject to an order and did
not ship to the United States.
- The Commission characterized Tenaris as the “dominant supplier of OCTG
products and related services to all of the world’s major oil and gas drilling
regions except the United States.” (Id.)
- Siderca, put forth positive evidence indicating that the subject producers’
output was committed in long-term contracts, and that it and its affiliates sold
primarily to end users. (Hearing Tr. At 5 (Testimony of German Cura))
- Yet the Commission concluded that th e companies referred to as Tenaris
would act according to this incentive and ship OCTG to the United States,
apparently regardless of the long-term commitments maintained by Siderca
and the other affiliated producers. The United States adds in its written
submission that “many of those contracts were with the very end users most
eager to see subject imports enter the US market.” (US First Submission,
para. 328.)
- In making this assertion, the United States ignores the record evidence
indicating that Tenaris, the dominant global supplier, had global contracts
with companies that represented “only 12-14 per cent of US oil and gas rigs.”
(Commission Sunset Determination at 19 n.124.) Moreover, the United
States asserts that “testimony at the hearing indicated that customers already
buying OCTG from the subject producers would immediately import the
subject product if these or ders were revoked.” ( Id.) Yet in support of this
assertion, the United States could only point to a second-hand statement that
one customer had expressed such a desire. (Id. (citing Hearing Tr. At 58 (Mr.
Ketchum, Red Man Pipe and Supply)(Exhibit US-20).)
- In concluding that Tenaris had a strong incentive to ship OCTG to the United
States, the Commission failed to cite positive evidence that this so-called
“incentive” would justify breaking long-term contracts and turning away
long-term customers, for which positive ev idence existed. It is a matter of
common-sense that one does not become a “dominant” (Argentina prefers
“leading”) supplier by breaking long-term contracts.
- The Commission’s finding that Tenaris had a strong incentive to ship OCTG
to the US market was thus based on a mere possibility, rather than on positive
evidence indicating that such shipments would be likely.
120. Second, the Commission found that, because “ casing and tubing are among the highest valued
pipe and tube products, . . . producers generally have an incentive, where possible, to shift production
in favour of these products from other pipe and tu be products that are manufactured on the same
production lines.” (Id.)

- On its face, this statement is a gene ral assumption rather than positive
evidence. The statement that “producers generally have an incentive” is not
enough support for establishing that something is likely to occur.

- In addition, this again contradicts th e notion – based on positive evidence
developed during the review – that a company would disregard long-term
contracts to shift production.
- The Commission’s statement also fails to recognize that Siderca (and even
Tenaris) had established its position as the dominant world supplier without
the US market. This suggests that the company had developed a strategy that
did not rely on the US market and was not, in fact, motivated by these
purported “general incentives.”
- In sum, it is clear that the so-called incentive to shift production is not based
in any way on positive evidence, but rather only on conjecture and
speculation.
121. Third, the Commission found that “prices for casing and tubing on the world market are
significantly lower than prices in the United States ,” and that this price differential created “an
incentive for subject producers to seek to increase their sales of casing and tubing to the United
States.” (Id. at 19-20.)

- The Commission relied on anecdotal evidence with respect to its efforts to
discern the so-called international prices.
- There is, as the Commission recognizes, contradictory evidence as to the
magnitude of the price differential.
- Moreover, this anecdotal and contested evidence related to the supposed price
differential, and did not relate to the ultimate proposition relied on by the
Commission – that the Argentine produ cer would react to this incentive
despite its long-term contracts and it was selling to end users.
- Notwithstanding the above points, the Commission embraces the evidence
submitted by the US industry and once ag ain accepted what can be described
as a general assumption that exporters will ship to the US market in quantities
sufficient to cause injury.
- Even accepting arguendo the possibility of competing record evidence on
this point, the evidence ultimately relied on by the Commission does not
establish a likelihood that any export ers would act in accordance with this
general incentive.
122. Fourth, the Commission found that “subject co untry producers also face[d] import barriers in
other countries, or on related products.” (Id. at 20.)

- With regard to trade barriers in thir d-country markets, the Commission could
point to only one outstanding order on the subject merchandise: an anti-
dumping order in Canada against import s from Korea. (Id. at 20.) This is
hardly the “positive evidence” required to support a conclusion that increased
exports would be likely to enter the US market.
- Moreover, the underlying premise supporting the Commission’s reliance on
the existence of other anti-dumping orders one is the so-called incentive to
shift production. As noted above, there was no evidence of product-shifting,
it ignored evidence that product shifti ng would not occur, and in the end
amounted to conjecture and speculation.

123. Finally, the Commission concluded that the industries in the subject countries were
“dependent on exports for the majority of their sales.” From this, the Commission classified these
producers as “export-oriented.” In turn, from this, it then stated that “the export orientation of the
industries in the subject countries indicates that they would seek to re-enter the US market in
significant quantities, as they did in the original investigation.” This st atement deserves some
analysis. In essence, from the observation that certain companies have been successful in exporting,
the Commission reaches the conclusion that these companies will: 1) increase exports to the US
market; 2) in significant quantities; and 3) in similar proportion as in 1994-95. This is the basis of the
Commission’s so-called incentive. Argentina submit s that this is pure conjecture, built upon several
layers of speculation that does not even approach the standard required by Article 11.3.

124. Moreover, it must be noted that in connection with the Commission’s analysis of the so-called
“incentives,” the Commission never considered how these incentives would operate with regard to
producers and exporters in Argentina. Argentina finds it hard to accept that its right to termination
under Article 11.3 can be completely disregarded without an examination of that focuses on Argentine
producers and Argentine OCTG exports.

125. Argentina further recalls that these five factors were centra l to the Commission’s
determination with respect to its finding that the lik ely volume would increase. In the end, what did
the Commission do? The Commission determined that “the ability to achieve high levels of overall
capacity utilization depends on mainta ining high levels of casing an d tubing production . . . capacity
utilization rates represent a potentially important constraint on the ability of these subject producers to
increase shipments of casing and tubing to the Unit ed States.” The natural conclusion flowing from
this positive evidence is that there would not be an increase in volume. However, instead, the
Commission invented “incentives,” based on conj ecture and speculation, and then the Commission
substituted these incentives to overcome the positive evidence of capacity constraints.

126. Similar short-comings exist with respect to the Commission’s price analysis and its impact
analysis. Argentina invites the panel to ke ep this in mind as it reviews the Commission’s
determination in evaluating whether the Commission satisfied the likely standard of Article 11.3.

V. COMMENT ON US REQUEST FOR PRELIMINARY RULINGS
127. Before concluding, Mr. Chairman, Argentina w ould like to turn briefly to the US request for
preliminary rulings.

128. Argentina’s 4 December submission responds fully to the allegations made by the United
States in its Request for Preliminary Rulings. Howeve r, Argentina here briefly highlights some of the
WTO case law that should guide the Panel in asse ssing its interpretation of DSU Article 6.2.
Argentina’s submission responds specifically to the three categories of allegations made by the
United States: (i) the so-called “Page Four” claims; (ii) the claims under Sections B.1, B.2 and B.3;
and (iii) the “certain matters” that the United Stat es asserts were not incl uded in Argentina’s Panel
request.

129. Argentina first recalls the general principles enunciated by the Appellate Body:

- the terms of reference serve the due pr ocess objective of providing notice to
the defending party and the third parties of the nature of the complainant’s
case. Any finding that Article 6.2 has been violated is tantamount to a
finding that due process rights
 have been violated;16

16 Appellate Body Report, Steel from Germany, para. 126.

- compliance with the requirements of Article 6.2 must be determined by
considering the panel request as a whole
, and not simply on the basis of
isolated portions;17 and
- compliance must be assessed in the light of “attendant circumstances,”
including actual prejudice to the defendant during the course of the panel
proceedings.18
130. First, Argentina’s panel request must be read as a whole. In crafting its preliminary objection,
the United States turns the principle of DSU Article 6.2 on its head. Indeed, rather than read
Argentina’s panel request as a whole, the United States artificially severs the re quest, parses isolated
language, and then contends that in this context th e United States cannot discern the particular claims
of Argentina. The US position is untenable. Considering the panel request as a whole, it is quite clear
which violations are being alleged by Argentina. Indeed, Argentina has set out the WTO-
inconsistencies with precision.

131. Second, the United States has not satisfied its burden of demonstrating it suffered actual
prejudice during the course of the panel proceedings (which have only just begun). This is a critical
flaw in the US complaint. A review of the US First Submission confirms that in no way have the
“due process rights” of the United States been vi olated. The United States has provided detailed
(albeit unconvincing) argumentation on the full rang e of claims, demonstrating clearly that the United
States is fully aware of Argentina’s claims, and has responded substantively to them. It should also be
noted that previous panels examining the issue of “prejudice” under DSU Article 6.2 have also
considered, as a highly relevant factor, whether there was any prejudice to the interests of third parties
by any alleged deficiencies in the panel request. In Bed Linens, for example, the Panel found that the
fact that the third parties were able to make su bstantive submission on the issues “suggests a lack of
prejudice to third parties' interests in this dispute.”
 19

132. In the present case, none of the Third Parties have raised any concerns about any aspects of
Argentina’s claims. Indeed, the European Communit ies, far from expressing any concerns about the
alleged lack of clarity of Argentina’s request, stated to the contrary that the “Panel should not follow
the United States suggestion … Rather, in order to establish whether the co nditions of Article 6.2
DSU are met, the Panel should consider the request as a whole.”
20

133. In summary, the US request for preliminary ru lings fails both prongs of the two-part test set
out by the Appellate Body for determining whet her a panel request meets the requirements of
Article 6.2 of the DSU. First, an examination of Argentina’s panel request, read as a whole, indicates
that it is detailed, clear and specific, fully setting out Argentina’s claims. Second, the United States
has utterly failed to substantiate its claim that it was allegedly prejudiced during the course of the
Panel proceedings. In any event, as indicated above, the United States has been well aware of the full
nature and extent of Argentina’s claims for over a year. In light of the attendant circumstances in this
case, the United States cannot credibly claim that it was not aware of Argentina’s claims, “sufficient
to allow it to defend itself.”

134. Accordingly, Argentina respectfully request s the panel to dismiss the US request for
preliminary rulings in their entirety.

17 Id. at para. 127.
18 Appellate Body Report, Korea Dairy, para. 127.
19 Panel Report, European Communities - Anti-Dumping Duties on Imports Of Cotton-Type Bed Linen
from India, WT/DS141/R, adopted 12 March 2001, paragraph 6.28.
20 Third Party Submission of the European Communities, 14 November 2003, Section 2.

VI. CONCLUSION
135. Let us conclude, Mr. Chairman. Argentina is confident that the Panel appreciates the extreme
nature of this case, and the extreme nature of th e conflict of the Departme nt’s and the Commission’s
determinations with the obligations of Article 11.3. Here we are, nearly a decade after a 1.36 per cent
margin was calculated for Argentina’s only investigated exporter. This margin, everyone concedes,
was calculated on the basis of zeroing, and is below what is today a de minimis margin. Injury was
determined originally on the basis of cumulated imports, as it was once again in the US sunset
proceeding.

136. Despite these defects, this measure continues, and it is very likely to continue to exist well
into the future if nothing is done. How is this possible in light of the fact that WTO Members
included in the Uruguay Round a specific provision that requires termination of an anti-dumping
measure unless specific conditions are met?

137. Argentina has presented to this Panel and to the WTO Members its view of how this troubling
result has occurred.

138. With respect to likely dumping, the United St ates has arranged three different procedures to
implement its Article 11.3 obligation, each depending on the perceived level of participation in the
process. In the end, it does not matter
 which procedure the United States uses. All roads lead to the
application of mandatory criteria which prevent preci sely the type of factual and legal review that
Article 11.3 requires in order to in voke the exception to termination. This can be seen plainly in this
case, and in all the other cases in which the US industry has expressed an interest. There is no
analysis, no positive evidence from which to infer likely behavior; in the end, no review.

139. With respect to likely injury, although the Commission does develop evidence, in the end it
fails to apply the correct legal standard – a “likel y” standard. It explains how there are several
possibilities supporting injury. This case is a clear ex ample of the varied uses of “possible” scenarios
to support a finding of “likely” injury.

140. Argentina cannot conclude without noting the stark contradiction in the approach of the
Department and the Commission in their respective sunset reviews. For its part, the Department
considered Argentina’s only inves tigated exporter to be irrelevant and therefore concluded that the
Argentine exporter had “waived” its participation in the review. For its part, the Commission based
its determination on speculation about the Tenaris alliance and on a cumulative assessment of exports
from other countries, both subject to, and not subject to, the measure. In other words, the
Commission’s analysis is anything but an order-wi de analysis, but rather conditions each Member’s
rights upon the actions of other companies from other Members. In the end, neither the approach of
the Department or of the Commission is consistent with Article 11.3. There is one principal
obligation under Article 11.3. Argentina had the right under Article 11.3 to have the anti-dumping
measure on OCTG terminated unless the specified requ irements of Article 11.3 have been satisfied to
invoke the exception to maintain the measure. Argentina’s righ ts have been violated by the
exceedingly limited approach of the Department and by the overly expansive approach of the
Commission.

141. Argentina respectfully requests the Panel:

- to find that in this case the US measur es identified by Argentina, as such and
as applied, violate US WTO obligations;
- to recommend that the United States brings its measures found to be
inconsistent with the covered agreements into conformity with its WTO
obligations; and

- to suggest, pursuant to DSU Article 19.1, that the only way for the United
States to comply with these recommendations is through the immediate
termination of the measure.
142. Argentina recalls that DSU Article 3.7 provid es that the “first objective” of the dispute
settlement mechanism is usually to “secure the withdr awal” of the WTO-inconsistent measure. This
is particularly appropriate in the present case. Indeed, immediate termination of the anti-dumping
duty is the only possible remedy, given the pervasive violations committed by the United States in this
case. Article 11.3 requires termination after five years unless certain findings have been made within
the specified time on the basis of evidence. Here, the United States did not make these findings and
cannot now “cure” the multiple defects through another review or any action other than the immediate
termination of the anti-dumping duty.

143. Unless the panel recommends termination in this case, this story will repeat into the future,
not only for Argentina but for all the trading partners affected by US anti-dumping measures.

CHART 1: Contradictions in US Position

Issue

In Sunset Determination In First Submission
Waiver The Department deemed respondent interested
parties to have waived participation
ARG 51 (Issues & Decisions Memorandum at 5)

Siderca was not deemed to have waived participation
(paras. 211-213)
Siderca’s Response Inadequate
ARG 51 (Issues & Decision Memorandum at 3, 7)
ARG 50 (Adequacy Determination at 2)
ARG 46 (DOC Sunset Determination at 66,701)

Adequate
(para. 213, 216, 233, 234)
Facts Available Applied to Siderca
ARG 51 (Issues & Decision Memorandum at 3)

Not applied to Siderca
(paras. 214, 221)
Significance of “Non-responding
Respondents”
Never mentioned The reason for waiver, inadequacy, expedited review
and “facts available”
(paras. 214, 216)

CHART 2CHART 2
DepartmentDepartment SunsetSunset Review (Dumping)Review (Dumping)
US US Domestic Domestic
Industry Industry
ParticipationParticipation
Termination of Termination of
MeasureMeasure
= = 7474 casescases
LikelyLikely DumpingDumping
217 cases (100%)217 cases (100%)
NONO
YESYES

DepartmentDepartment SunsetSunset Review (Dumping)Review (Dumping)
US US Domestic Domestic
Industry Industry
ParticipationParticipation
Termination of Termination of
Measure Measure
= = 7474 casescases
LikelyLikely DumpingDumping
217 cases (100%)217 cases (100%)
NONO
YESYES
SAA/SPBSAA/SPB
“Checklist”“Checklist”
CriteriaCriteria
WaiverWaiver
Review

Department SunsetDepartment Sunset Review (Dumping)Review (Dumping)
US US Domestic Domestic
Industry Industry
ParticipationParticipation
Termination of Termination of
Measure Measure
= = 7474 casescases
LikelyLikely DumpingDumping
217 cases (100%)217 cases (100%)
NONO
YESYES
Deemed
Waiver
SAA/SPBSAA/SPB
“Checklist”“Checklist”
CriteriaCriteria
Review
WaiverWaiver

DepartmentDepartment SunsetSunset Review (Dumping)Review (Dumping)
US US Domestic Domestic
Industry Industry
ParticipationParticipation
Termination of Termination of
Measure Measure
= = 7474 casescases
LikelyLikely DumpingDumping
217 cases (100%)217 cases (100%)
NONO
YESYES
SAA/SPBSAA/SPB
“Checklist”“Checklist”
CriteriaCriteria
WaiverWaiver
Complete?Complete?
ExpediteExpedite
ForeignForeign ProducerProducer
Response Response to to
NoticeNotice ofof
InitiationInitiation
AdequateAdequate?? FullFull
YESYES
NONO
NONO NONO
Deemed
Waiver

CHART 3: The Commission’s “5-Incentive” Analysis

Factors relied on as “incentives” by the Commission . . . are not “likely” because:
1) Global Focus
Tenaris has a Global Focus
Tenaris has a strong incentive to have a
significant presence in the U.S.
• Evidence on the record does not support
the “strong incentive” argument.
• Tenaris mills from non-subject countries
could have, but did not, access the U.S.
market.
• Tenaris developed its leading position
without relying on the U.S. market

2) OCTG Pricing
Casing and tubing are among the highest valued
pipe and tube products generating among the
highest profit margin
There is an incentive to shift production to OCTG
and to ship more OCTG to the U.S.
There was positive evidence regarding products
other than casing & tubing products that were part
of Tenaris’ overall strategy, associated with
service to the oil and gas industry. Therefore, the
ITC’s “product shifting” is not possible for a
leading, full range supplier.

3) U.S. OCTG Pricing
Casing and tubing prices in the U.S. are higher than
prices on the world market

There is an incentive to focus on the U.S. market
for OCTG products

• Evidence regarding price differentials was
disputed
• Several producers had commitments to
supply other markets

4) Trade Remedies
There was one antidumping order in Canada against
Korean OCTG

Exporters faced barriers in other countries or in
related products, which would lead the exporters
to ship more OCTG to the U.S.

There are no barriers against Argentine OCTG or
related products

5) Export Orientation
Producers are dependent on exports for the majority
of their sales

Producers are export-oriented, and therefore
shipments to the U.S. would be increased

There’s a strong commitment to long-term
contracts with overseas multinational companies.
It is not logical to risk those contracts for spot
sales in the US market

Closing Statement – 10 December 2003

1. Mr. Chairman, Members of the Panel: on one level, this case may seem very complex. There
are many US laws, regulations and practices, including some of which even the US delegation
characterized as “inartfully” drafted.

2. Yet underneath all the complexity of the US lega l system lies a very simple truth: if the US
industry wants a dumping order to be continued, the Department will find that dumping is likely to
continue or recur. It’s as simple as that. Even a quick review of Argentina’s Exhibit 63 will indicate
how clear and straightforward this case really is.

3. Argentina is confident that the Panel realizes full well the mechanical, pre-ordained nature of
US sunset “determinations.” This approach is at odds with the requirements of the Agreement.

4. Mr. Chairman, let us consider briefly what we heard yesterday from the United States on
“likely” dumping. With respect to waiver – an d this is directly the Chairman’s questions to the
United States and the US response to that question – the United States asserts on the one hand that
waiver is applied on a company-specific basis. On the other hand, the United States indicated several
times that the sunset determination is conducted on an order-wide basis, and that it never makes a
likelihood of dumping determination on a company-sp ecific basis. Yet the mandatory provisions of
the statute unambiguously state that, in the event of “waiver,” the Department shall conclude that
dumping is likely to continue or recur. What precisely does the statute mean? And, furthermore,
what precisely did the Department mean when it said in its Issues and Decision Memorandum that,
and I quote, “[S]ection 751(c)(4)(B) of the Act prov ides that the Department shall determine that
revocation of an order is likely to lead to continuation or recurrence of dumping where a respondent
interested party waives its participation in the suns et review. In the instant reviews, the Department
did not receive an adequate response from respondent interested parties. Pursuant to
section 351.218(d)(2)(iii) of the Sunset Regulations, this constitutes waiver of participation.”

5. In response to a panel question yesterday, the United States spoke of “inartful” drafting with
regard to the Department’s waiver regulation. The United States also declared “inartful” the drafting
of certain aspects of the Department’s decisions. Argentina agrees with these characterizations of
“inartful” drafting, but this explanation cannot excu se the US failure to comply with its obligations
under Article 11.3.

6. But, as I stressed before, in the end, it does not matter
 which procedure the United States uses,
and Argentina has demonstrated this through its empirical analysis provided in ARG-63. In the end,
the US will apply its mandatory cr iteria, which prevent the type of factual and legal review that
Article 11.3 requires in order to maintain the order. This can be seen plainly in this case, and in all
the other cases in which the US industry has expressed an interest. There is no analysis, no positive
evidence from which to infer likely behaviour; in the end, no review.

7. After some of the US statements yesterday, th is result is not surprising to Argentina. The
United States recited criteria from the Sunset Policy Bulletin . To paraphrase the US assertions, if a
company dumped in the past it is reasonable to assume that it will dump in the future. If a company
stopped shipping after the imposition of an anti-du mping duty order, it is reasonable to assume that
the company cannot export without dumping. If a company’s volume has declined, it is reasonable to
assume that the company will dump again if the order is lifted. These statements are the criteria
established by the statute, SAA and the Sunset Policy Bulletin . These statements speak for
themselves. These are in fact the sole criteria re lied upon to make the likely dumping finding.
Assumptions based on speculation cannot, however, satisfy the Article 11.3 standard.

8. With respect to the Commission’s likely injury determination, the Commission confirmed that
it did not consider the impact of likely Argentine OCTG imports on the United States industry; rather,
it considered the impact of cumulated imports from 5 countries. Argentina cannot accept that such an
approach is consistent with Article 11.3. If it we re, Argentina’s right to have measures terminated
after 5 years is severely limited, and is something very different from what the text of Article 11.3
says that it is.

9. We also heard yesterday that the cumulated approach was essential in this case because of the
“Tenaris” alliance. Yet, we also heard yesterday that the Commission did not consider the fact that
the Tenaris Alliance had members outside of the order, free to export to the United States without any
restrictions, but in fact did not do so. If Tenaris were motivated to act as the Commission presumes,
why was it not shipping to the United States through its Tenaris Alliance member in Canada? Is this
not positive evidence supporting the notion that these producers would not significantly increase their
volume to the United States? It is, and it is essentially ignored by the Commission.

10. On the procedural issues, Mr. Chairman, I can be brief. As I said yesterday, we welcome the
admission by the United States that Argentina’s panel request has identified the specific measures at
issue. This confirms what Argentina has said all along – that the US measures that Argentina are
challenging are limited, specific, and have been identified with precision in our Panel request.

11. This concession by the United States also means that there now only remains one single
Article 6.2 issue before the Panel: did Argentina fa il to “present the problem clearly,” such that the
United States has suffered actual prejudice during the course of the panel proceedings?

12. Mr. Chairman, I will not repeat what is set out in our 4 December submission, which
demonstrated the Argentina has complied fully with the Article 6.2 requirement to “present the
problem clearly.”

13. With respect to the alleged prej udice to the United States: as the Canada Aircraft decision
stated, a Panel cannot assess prejudice during the panel process until the end
 of the panel process. In
this regard, we recall what the statement with wh ich the United States opened this proceeding
yesterday, and I quote: “for anyone who follows WTO dispute settlement, most of the issues in this
dispute should sound very familiar.” Since the United States is “very familiar” with the issues, it
seems highly unlikely that it, or any of the “potentia l” third parties, suffered any prejudice from the
alleged lack of clarity in the claims set out in Arge ntina’s Panel Request. I have to add that Argentina
was quite surprised yesterday to hear the US delegation argue that actual prejudice may not be a
fundamental prerequisite under Article 6.2. This is a complete contradiction of what the United States
argued before the Canada Wheat Board, where it asserted, and I quote:

even if a panel request is insufficiently detailed “to present the problem clearly,” the
panel is not automatically deprived of ju risdiction over the matter. Rather, the panel
must examine, based on the “particular circumstances of the case,” whether the defect
has prejudiced the ability of the responding party to defend itself [original emphasis].
14. There is much more I could say on these issues, particularly in light of the US oral statement
of yesterday. We will respond fully to the US 9 December oral statement regarding Article 6.2
objections in our Second Written Submission.

15. Mr. Chairman, we would respectfully request that the Panel continue to bear in mind one
fundamental point. At the end of the Uruguay Ro und, the drafters of the Anti-Dumping Agreement
agreed that dumping orders would not, and could not, exist in perpetuity. Argentina and other WTO
members negotiated – and paid for – the right to have orders terminated after five years, unless very
stringent conditions were met. These conditions patently have not been met in this case.

16. Argentina respectfully requests the Panel:

- to find that in this case the US measur es identified by Argentina, as such and
as applied, violate US WTO obligations;
- to recommend that the United States brings its measures found to be
inconsistent with the covered agreements into conformity with its WTO
obligations; and
- to suggest, pursuant to DSU Article 19.1, that the only way for the United
States to comply with these recommendations is through the immediate
termination of the measure. This is th e only remedy that can restore the right
Argentina obtained in Article 11.3 to have measures applicable to its exports
terminated after 5 years.
17. Argentina thanks the Panel for the opportunity to present its case.

ANNEX D-2

ORAL STATEMENT OF THE UNITED STATES – FIRST MEETING

9 December 2003

Mr. Chairman, members of the Panel:

1. On behalf of the United States delegation, I would like to thank you for agreeing to serve on
this Panel.

2. Today, it is our pleasure to present the views of the United States concerning the issues in this
dispute. Organizationally, we will first talk about so me of the substantive issues, and then turn to the
procedural issues.

3. With respect to the substantive issues, in ou r First Written Submission, we fully addressed the
Argentine arguments made to date. Today, we will focus on what we consider to be the central issues.
We will begin with a discussion of some of the issues concerning "dumping," and then turn to some of
the issues relating to "injury."

Issues concerning the likelihood of continuation or recurrence of dumping

4. Mr. Chairman, for anyone who follows WTO dispute settlement, most of the issues in this
dispute should sound very familiar. Indeed, Argentina’s "as such" claims largely raise issues that
either have been directly addressed in other disputes or that are closely rela ted to those addressed in
other disputes. In either case, the Panel faces a straightforward task. It should apply the WTO
obligations in question based on the approaches taken in recent panel and Appellate Body reports.

5. For example, Argentina claims that an "irrefutable presumption" exists simply because
Commerce has found likelihood in a particular number of sunset reviews. However, as a series of
panels have found – including those in US – Export Restraints , US – India Plate , and US – Japan
Sunset – the frequency of a particular outcome does not transform that outcome into a "measure" that
may be challenged independently for its alleged WTO inconsistency.

6. With respect to Commerce’s expedited s unset review regulations, Argentina has not
demonstrated how these regulations breach Article 11.3 or any other obligation of the AD Agreement.
This is not surprising given that, as the US – Japan Sunset panel observed, Article 11.3 does not
prescribe how a Member should go about making a likelihood determination in a sunset review.

7. Argentina’s claim that Commerce’s reported "m argin likely to prevail" is WTO-inconsistent
rings hollow because Argentina has not demonstrated that any obligation exists to quantify dumping
in a sunset review. In US – German Steel , the Appellate Body addressed Article 21.3 of the SCM
Agreement – the counterpart to Ar ticle 11.3 – and found that there is no obligation to apply any de
minimis threshold in a sunset review because Article 21.3 does not explicitly or implicitly contain
such an obligation. The same holds true for Article 11.3 and the obligation to calculate a margin of
dumping to determine likelihood. Indeed, given that almost identical language is found in both
Article 21.3 of the SCM Agreement and Article 11.3 of the AD Agreement, the analysis applied by
the Appellate Body for Article 21.3 is equally persuasive with respect to Article 11.3.

8. In this regard, there is also no basis in the AD Agreement for Argentina’s claim that a
determination of likelihood of continuation or recu rrence of dumping under Article 11.3 of the AD
Agreement must be made by determining a current level of dumping in a sunset review. To the

contrary, footnote 22 of the AD Agreement makes cl ear that a current level of dumping determined
immediately prior to a sunset review is not determinative of the issue of likelihood in a sunset review.

9. Finally, Commerce’s Sunset Policy Bulletin is not a legal instrument with independent status
under US law – it is not a "measure." Nor is it "mandatory" within th e meaning of the well-
established mandatory/discretionary distinction.

10. Turning to Argentina’s "as applied" claims, Argentina has based these claims either on an
inaccurate understanding of the facts on the record or upon facts that Argentina failed to put in the
record.

11. For example, Argentina claims that Siderca was found to have provided an inadequate
submission in the sunset review proceeding and th at this alleged finding resulted in an expedited
review. This statement is disproved by a simple re view of the record, and Argentina has not cited one
instance in the administrative record of the OCTG review where Commerce made this alleged finding.
In fact, in each of the three separate document s – the Final Sunset Determination, the Decision
Memorandum, and the Adequacy Memorandum – Commerce clearly stated that Siderca had fully
cooperated in the sunset review and had filed a complete substantive response. Notwithstanding
Argentina’s claims to the contrary, Commerce also clearly articulated in the Decision Memorandum
and the Adequacy Memorandum that it had determined to expedite th e review because none of the
firms that had actually exported Argentine OCTG to th e United States were participating in the sunset
review proceeding.

12. Similarly, Argentina’s claims that the e xpedited review process denied Siderca a full
opportunity for submission of evidence and defence of its interests are belied by a simple examination
of the facts. Notwithstanding the expedited nature of the review, Siderca had the right to file a
complete substantive response, but chose to comment on only two issues and its treatment of those
issues amounted to two pages of text. Siderca also chose not to exercise its right to file a rebuttal
response. Siderca did not submit "any additional info rmation" on its own behalf or on the behalf of
the Argentine exporters, as permitted by sec tion 351.218(d)(3)(iv) of Commerce’s Sunset
Regulations. In addition, no other Argentine intere sted party submitted any information or requested
to participate in the proceeding. Given that Siderca and the Argentine exporters did not avail
themselves of the existing opportunities for par ticipation and defence of their interests, it is
disingenuous for Argentina to now claim that the e xpedited nature of the proceeding resulted in a
denial of opportunities to participate in contravent ion of Article 6. Moreover, the opportunities for
defence and participation in an expedited review provide all that is required by Article 6.

13. Finally, Argentina claims that Commerce’s re port of the "margin likely to prevail" in the
absence of the anti-dumping duty order breaches Articles 2 and 11.3, as applied in this case, because
it objects to the calculation methodology used in the or iginal investigation to derive the margin. First,
as previously noted, there is no WTO obligation to quantify any margin for the dumping that is likely
to continue or recur for purposes of a sunset revi ew under Article 11.3 of the AD Agreement. Nor is
there any WTO obligation to consider particular ma rgins in a sunset injury analysis. Second, the
measure at issue in this dispute is the sunset revi ew, not the original investigation. If Argentina
intended to make claims concerning that distinct me asure, it has failed to properly do so. Finally, we
note that Argentina has made no claim that, if th e allegedly problematic methodology were modified,
the margin likely to prevail would be affected or that there would be any change in the margin that
would be meaningful for the US International Trade Commission’s ("ITC") analysis.

Issues concerning the likelihood of continuation or recurrence of injury

14. Argentina has raised a number of issues regarding the ITC’ s determination of likelihood of
continuation or recurrence of injury in the OCTG sunset review. We will focus today on four of those
issues: first, whether the ITC applied the correct standard for determining whether termination of the

anti-dumping duty orders would be likely to lead to continuation or recurrence of injury; second,
whether the obligations of Article 3 of the AD Agr eement apply to sunset reviews; third, whether the
ITC’s determination was consistent with the evidentiary standards of Article 3.1; and fourth, whether
the time frame provided for under US law for the likely recurrence of injury is consistent with
Article 11.3 of the AD Agreement.

The ITC applied the correct standard for determining whether termination of the anti-dumping
duty orders would be likely to lead to continuation or recurrence of injury

15. Argentina argues that the ITC misinterpreted th e term "likely" in Article 11.3. Essentially,
Argentina maintains that "likely" can only mean "probable," and that the ITC disregarded this
meaning and interpreted "likely" to mean "possible." Both of these arguments are incorrect.

16. Trying to pin down the meaning of "likely" by seeking a synonym for that word – such as
"probable" – is not helpful. The drafters did not use a synonym; they used "likely." Moreover,
dictionaries define "likel y" in various ways. And even if only one synonym were applicable, this
would merely beg the question of how that synonym should be interpreted.

17. To properly define "likely," one must bear in mind the context in which it is used. In
particular, one must consider the fundamental nature of the inquiry called for by sunset reviews.
Sunset reviews inherently involve less certainty and precision than original investigations.

18. Contrary to Argentina’s assertion, the ITC did not find that the recurrence of injury was
merely possible. It examined the likely volume, price effects, and impact of imports if the orders
were revoked. It examined each of these factors closely. For example, with respect to likely volume,
the ITC found that the significant increases in im port volume during the original investigation,
substantial excess capacity in several of the subject countries, and a strong incentive on the part of
foreign producers to establish a presence in the la rge, relatively higher-priced US market, supported
the conclusion that the likely volume of imports would be significant if the orders were revoked.

Article 3 does not apply to sunset reviews

19. Argentina claims that Article 3 of the AD Agre ement applies in its entirety to sunset reviews.
But, there are numerous textual indications that this is not the case. For example, there are no cross-
references in Article 3 to Article 11, or in Article 11 to Article 3.

20. Moreover, a determination of injury under Ar ticle 3 and a determination of likely recurrence
of injury under Article 11.3 are entir ely different animals. This is underscored by the fact that many
of the obligations described in Article 3 simply cannot be applied in sunset reviews. For example,
Article 3.1 specifies that a determination of injury shall involve an examination of the "volume of the
dumped imports and the effect of the dumped imports on prices." Yet, in a sunset review imports may
not even be present in the market at the time of that review, and they may not be sold at dumped
prices.

21. Another example of the incompatibility between the provisions of Article 3 and the inquiry
involved in a sunset review can be found in Article 3.5. Article 3.5 refers to the "dumped imports"
and speaks of such imports in the present tense as "causing injury." However, in a sunset review there
may be no dumped imports. Article 3.5 refers al so to existing "injury" and describes an existing
causal link between dumped imports and that injury. Again, in a sunset review, with an anti-dumping
order in place, there may be no current injury or causal link. Indeed, it would be surprising if there
were given the remedial effect of an anti-dumping measure.

22. In sum, it is clear from these textual provisions, and others described in our First Submission,
that the obligations of Article 3 do not extend to sunset reviews.

The ITC’s Sunset Determination was consistent with Article 3.1

23. Even though Article 3.1 does not apply to sunset reviews, the ITC’s sunset determination
effectively satisfies the Article 3.1 requirements. The ITC’s determination was based on a proper
establishment of the relevant facts and an unbiased and objective evaluation of those facts – as
required by Article 17.6(i) of the AD Agreement – and was based on positive evidence.

24. As is clear from its report, the ITC carefully reviewed an extensive array of factors and
evidence relative to the likely volume, price effect and impact of imports on the domestic industry.
We will focus in this statement only on the ITC’s findings with regard to the likely volume of imports,
as it is representative of the ITC’s approach.

25. The ITC first reviewed the volume of imports in its original injury investigation, to see how
imports developed in the absence of dumping measur es. The original investigation showed that the
rate of increase in imports was far greater than the increase in demand at that time, and that the market
share of subject imports rose significantly, at the expense of that of the domestic industry. After the
anti-dumping duty orders went into effect, imports fell but remained a factor in the US market.

26. Turning to the likely volume of imports if the dumping orders were revoked, the ITC found
that producers in the five countries involved had both the capacity and the incentive to increase their
exports to the United States. The ITC gave five reasons for this.

27. First, the ITC found that the Tenaris alliance of OCTG producers (which has members in four
of the five countries at issue here) with its global focus would have a strong incentive to gain a
significant presence in the US market. Second, the ITC found that the subject producers would have
an incentive to devote more of their capacity to shipping casing and tubing to the US market in that
casing and tubing were among the highest valued pipe and tube products. Third, the ITC found that
prices for casing and tubing on the world market we re significantly lower th an prices in the United
States. Fourth, the ITC found that the subject produce rs faced import barriers on casing and tubing in
other countries or on related products in the United States. Finally, the ITC found that the OCTG
industries in at least some of the subject countries, especially Japan and Korea, were heavily
export-dependent.

28. Argentina takes issue with only three of the ITC’s reasons. First, it questions whether the
Tenaris producers could re-orient to the United St ates production that was committed under existing
contracts. But the evidence before the ITC plainly supports its finding. Tenaris is the dominant
supplier of OCTG products and related services to all of the world's major oil and gas drilling regions
except the United States. The United States repres ented the best growth opportunity for the Tenaris
producers. The chief executive officer of one of the world’s largest distributors of OCTG, in sworn
testimony, told the ITC that: "It is simply not imaginable that [Tenaris] or the other subject
companies would stay out of the United States which buys as much OCTG as the rest of the world
combined and has the highest prices."
1

29. Argentina’s second reason for challenging the IT C’s volume finding is that there is only one
trade barrier in third country markets facing casing and tubing. Argentina quite clearly overlooks the
fact that the ITC examined not only import barriers on casing and tubing in third country markets but
also barriers on related products in the United St ates – that is, lower-priced products that were
produced in the same facilities as casing and tubing.

 1 See Exhibit US-20.

30. Finally, Argentina takes issue with the ITC’ s finding that foreign producers had an incentive
to export casing and tubing to the United States beca use prices in the United States were higher than
in other markets. As explained more fully in our First Submission, Argentina inaccurately
characterizes both the evidence on which the ITC re lied and the ITC's analysis of this issue. The
evidence shows that the ITC did conduct an independent investigation of this issue by considering the
relevant evidence submitted by both parties – and that this evidence demonstr ated the existence of a
substantial price gap between the United States and the rest of the world.

31. In sum, the ITC had ample evidence to support its finding that subject producers had strong
incentives to shift into the US market and that the subject imports were likely to increase in volume.

The time frame in which injury would be likely to recur

32. Argentina claims that the provisions of US la w regarding the time frame within which injury
would be likely to recur are inconsistent with Ar ticles 3 and 11.3 of the AD Agreement. These
provisions instruct the ITC to determine whether inju ry would be likely to continue or recur "within a
reasonably foreseeable time" and to "consider that the effects of revocation or termination may not be
imminent, but may manifest themselves only over a longer period of time."

33. Argentina misconstrues Article 11.3, which do es not specify the time frame relevant to a
sunset inquiry. In the absence of any specific provision in Article 11.3, Members remain free to
determine under their own laws and procedures the ti me frame relevant in sunset inquiries. It is
inherently reasonable for the United States to consider the likelihood of continuation or recurrence
"within a reasonably foreseeable time" and that the "effects of revocation or termination may not be
imminent, but may manifest themselves only over a longer period of time."

Procedural issues

34. Turning to the procedural issues, in its submission of 4 December,
2 Argentina fails to rebut
the US case that portions of Ar gentina’s panel request fail to co mply with the requirements of
Article 6.2 of the DSU and that certain claims asse rted by Argentina in its First Submission are not
within the Panel’s terms of reference. To a large extent, Argentin a’s submission of 4 December fails
to respond to US arguments at all, responding instead to arguments that the United States never made.

35. For example, Argentina asserts that the United States has alleged an inconsistency with the
third requirement of Article 6.2 of the DSU – the re quirement to "identify the specific measures at
issue." This assertion is simply wrong. Nowhere in the US First Submission is there an allegation
that Argentina’s panel request is inconsistent with that requirement. Instead, the United States has
complained about Argentina’s failure to comply w ith the fourth requirement of Article 6.2 – the
requirement to "present the problem clearly." T hus, paragraphs 25-28 and 33-38 of the 4 December
submission contain responses to arguments the United States never made.

36. Similarly, notwithstanding Argentina’s asse rtions to the contrary, the United States has not
argued that a panel request must include arguments or that it must include narrative descriptions of
claims. Thus, the Panel can ignore Argentina’s argumentation on these points, as well.

37. What the United States has argued is that Article 6.2 requires that a panel request contain a
"brief summary of the legal basis of the complaint sufficient to present the problem clearly." Where,
as here, a "measure" is described ambiguously (such as by the phrase "certain aspects"), where the
treaty provision in question is described ambiguously (such as by a reference to an entire article with

 2 Submission from Argentina on the Request by the United States for Preliminary Rulings Under
Article 6.2 of the DSU, 4 December 2003 [hereinafter "4 December Submission"].

multiple paragraphs and obligations), and where ther e is no accompanying narrative description or
argument, the problem will not be presented clearly.3

38. Turning to the specific defects in the panel re quest, let us begin with what we have called
"Page 4." Regarding Page 4, Argentina’s assertion that the United States did not consider the panel
request as a whole is simply wrong. In paragraphs 88-89 of the US First Submission, the United
States explained how it looked at Sections A and B of the panel request to try and figure out the
nature of the problems set forth on Page 4, and how it concluded – as would any reasonable and
objective person – that the problems complained about on Page 4 were different from the problems
complained about in Sections A and B. For exam ple, when Argentina makes "as such" claims in
Sections A and B regarding section 751(c)(4) and s ections 752(a)(1) and (5) of the US Tariff Act of
1930, and then on Page 4 says that it "also" considers certain aspects of sections 751(c) and 752 to be
WTO-inconsistent, a reasonable and objective person would conclude that Argentina was asserting
new claims and not merely repeating the claims in Sections A and B.

39. Argentina’s arguments appear now to have switc hed. Argentina told the DSB that Sections A
and B of the panel request contain Argentina’s "particular claims." Now, Argentina says "the essence
of Argentina’s claims" – whatever "essence" means – are contained in Sections A and B.
4 This is just
inaccurate. For example, Page 4 identifies the ITC’s sunset regulations as a source of some
(unidentified) problem, but where in Sections A or B is the "essence" of Argentina’s "claim" set
forth? The answer is: nowhere.

40. Finally, Argentina claims to have provided a narrative description in the first part of the panel
request that remedies the deficiencies that otherwise exist with respect to Page 4. 5 However, this
narrative is little more than a chronology of events , which concludes, on page 2 of the panel request,
with the same ambiguous assertion that appears on Page 4; namely, that "certain aspects of US laws,
regulations, policies and procedures related to the ad ministration of sunset reviews are inconsistent
with US WTO obligations."

Sections B.1, B.2 and B.3

41. Turning to the defects in Sections B.1, B. 2 and B.3 of the panel request, we recall that these
defects involve instances in which Argentina alleges inconsistencies with Articles 3 and 6 of the AD
Agreement in their entirety. What is most interest ing about Argentina’s justification for these defects
is what Argentina does not argue. Argentina does not take issue with the findings of prior panels that
citations to entire articles of the AD Agreement – including Article 6 – can fail to satisfy the
requirements of Article 6.2 of the DSU.
6 Argentina also never explains why, in other portions of its
panel request, it was able to identify with precisio n the particular paragraphs of Articles 3 and 6 of
concern to it.7 Given Argentina’s insistence that the entire panel request be considered, this omission
on its part is especially curious.

42. With respect to the arguments that Argentin a does make, they are unavailing. Argentina’s
main argument is that the United States someho w knew from the consultations what Argentina’s
problems were.8 However, as the panel in the Canada Wheat dispute found, this type of argument is

 3 See First Submission by the United States of America, 7 November 2003, para. 87 [hereinafter "US
First Submission"].
 4 4 December submission, note 26.
 5 Id., para. 45.
 7 Id., para. 106.
 8 4 December submission, paras. 71-77.

legally irrelevant for purposes of determining whether a panel request complies with Article 6.2 of the
DSU.
9 Moreover, as a factual matter, Argentina’s argument fails, because the United States already
has demonstrated how the consultations failed to shed light on the nature of Argentina’s problems.10

43. Interestingly, Argentina seems to object to the US discussion of Argentina’s questions at
consultations.11 This is a curious objection, given that it was Argentina that first cited these questions,
arguing to the DSB that they somehow made up for any deficiencies in Argentina’s panel request.

"Certain matters"

44. Finally, there are the "certain matters" that are not within the Panel’ s terms of reference,
discussed in Section IV.D of the US First Submis sion. Because these matters are not within the
Panel’s terms of reference, the United States does not need to demonstrate prejudice as part of its
analysis in this case. However, to be clear, the United States was, in fact, prejudiced by the inclusion
in Argentina’s First Submission of matters that were not included in Argentina’s panel request.

45. In the interests of time, the United States will not comment on Argentina’s defence of each
one of these "matters," but instead will limit itself to one example that should suffice to demonstrate
the fatal flaws in Argentina’s arguments.

46. The United States has asserted that the claims set forth in Section VIII.C.2 of the Argentina
First Submission are not within the Panel’s terms of reference.
12 This section contains an "as applied"
claim regarding the time period considered by the ITC. However, the only portion of the panel
request dealing with the time period considered by th e ITC is Section B.3, which clearly is limited to
an "as such" claim regarding the relevant statutory provisions.

47. Argentina argues that an "as applied" claim should be read into Section B.3 because the
heading of Section B refers to the "Commission’s Sunset Determination." 13 The problem, though, is
that Section A of the panel request also has a head ing that refers to Commerce’s determinations, but
the individual paragraphs of Section A clearly dis tinguish between "as such" and "as applied" claims.
Section A.1 makes an "as such" claim with respec t to Commerce’s expedited review regime, while
Sections A.2 and A.3 clearly make "as applied" claims regarding certain aspects of the expedited
review regime as applied in the sunset review of OCTG from Argentina.

48. Thus, anyone reading the panel request as a whole – as Argentina says one must – would
conclude that Argentina deliberately limited its clai ms regarding the time period considered by the
ITC to an "as such" claim regarding the relevant statutory provisions. If Argentina had intended
otherwise, it would have distinguis hed between the "as such" and the "a s applied" claims as it did in
Section A with respect to Commerce ’s expedited review system.

 10 Id., paras. 107-108.
 11 4 December submission, para. 75.
 12 US First Submission, paras. 123-125.
 13 4 December submission, para. 111.

The United States has been prejudiced

49. Argentina’s attempts to demonstrate complia nce with Articles 6.2 and 7 of the DSU simply
highlight the deficiencies in its panel request and its First Submission. The forced interpretive efforts
in which Argentina engages to try to demonstrat e the "clarity" of its panel request speak for
themselves.

50. Thus, Argentina is really left with nothing other than the baseless assertions that: (1) the
United States is afraid to engage on the substantive issues; 14 and (2) the United States has not been
prejudiced.

51. Concerning the first argument, the United States simply notes that we could have been spared
this debate if Argentina simply had withdrawn its panel request and submitted a proper one after the
United States expressed its concerns. Argentina waited over a year before even requesting
consultations, so it is difficult to understand why Argentina refused to take approximately one more
month for panel establishment in order to comply with the requirements of the DSU.

52. On the topic of prejudice, although this shou ld not be relevant where – as here – there is a
clear failure by Argentina to comply with the DS U, nonetheless the United States and potential third
parties were prejudiced by Argentina’s failure to comply with the requirements of the DSU. Members
were unable to know the matter being referred to th e Panel until well after panel establishment, and
the United States was prejudiced in its ability to prepare its defence.

53. Moreover, it is appropriate to take into acc ount not only the disadvantage experienced by the
United States, but the utter lack of any justificatio n by Argentina for the de ficiencies in its panel
request. For example, Sections A and B of the pa nel request show that Argentina is capable of
drafting claims with precision, but yet Argentina offers no plausible explanation for the ambiguity on
Page 4.

54. In summary, this Panel should follow the precedent set by the panel in the Canada Wheat
dispute. Although in that case the panel found a failure to comply with the third requirement of
Article 6.2 of the DSU – the requirement to identif y the specific measures at issue – the panel’s
reasoning applies with equal force to Argentina’s failure to "present the problem clearly." As that
panel made clear, the due process objective of Arti cle 6.2 requires that a panel request provide the
respondent with the information necessary to begi n preparing its case. The panel found that the US
failure to comply with Article 6.2 "creates signific ant uncertainty regarding the identity of the precise
measures at issue and thus impairs Canada’s ability to ‘begin preparing its defence’ in a meaningful
way."
15

55. In this case, Argentina’s failure to comply with Article 6.2 created significant uncertainty
regarding the matters at issue, thereby impairing – i.e., prejudicing – the United States’ ability to
begin preparing its defence in a meaningful way.

56. Mr. Chairman, that concludes the opening stat ement of the United States. The US delegation
looks forward to your questions and engaging in a constructive dialogue with the Panel.

 14 4 December submission, para. 2.
 15 Canada – Wheat, para. 28.

Thank you Chairman and Members of the Panel.

1. Introduction
1. The European Communities intervenes as a thir d party in this case because of its systemic
interest in the correct interpretation of the AD Agreement.

2. Summary of written submission
2. Our written submission contained observations on six points.

3. First, with respect to the preliminary objecti on raised by the United States, we consider that
the Panel should assess Argentina’s Panel Request as a whole, and not one specific part of it in
isolation from the rest.

4. Second, with respect to the inadequacy determination, we consider that the cumulative effect
of the relevant provisions in this case led to a situation in which the investigating authority was
essentially relieved from any obligat ion to investigate, in a manner that is inconsistent with the AD
Agreement.

5. Third, with respect to the likelihood determina tion, we consider that it was inconsistent with
Article 11.3 AD Agreement, being based on ou t-of-date data together with a prospective
determination.

6. Fourth, with respect to the Sunset Policy Bulletin , we consider it to be a measure subject to
challenge under the WTO Agreement and “as such” inconsistent with Article 11 of the AD
Agreement.

7. Fifth, with respect to zeroing, we agree that the United States was not entitled to use, for the
purposes of a sunset review investigation under Article 11.3 AD Agreement, a dumping determination
made using a zeroing methodology inconsistent with Article 2 AD Agreement.

8. Sixth, with respect to injury, we consider that the provisions of Article 3 of the AD
Agreement also apply in the context of a sunset review investigation and determination.

9. To these observations we would like to add the following, concerning : the inadequacy
determination; the United States proposition that Ar ticle 11.3 AD Agreement must be interpreted in
isolation from all other substantive provisions of the Agreement; the likeliho od determination; and
zeroing.

3. Inadequacy Determination and Waiver of Participation
10. Under DOC’s regulations,
1 DOC will consider a response to be ‘adequate’ only if respondent
interested parties account for more than 50 per cen t of total exports to the United States. If the
response is considered inadequate, DOC will decide to expedite the review, and decide on the basis of
“facts available”.2 Since Siderca had not exported to the United States during the period under
review, and even though DOC found that it had filed a complete substantive response, DOC
considered that its response was inadequate, and therefore decided to expedite the review.

1 Section 351.218(e)(1)(ii)(A).
2 Section 351.218(e)(1)(ii)(C).

11. As Korea has rightly stated, the 50 per ce nt threshold for determining the adequacy of
responses of respondent interested pa rties has no basis in the AD Agreement.
3 Panels have
consistently held that an investigating authority may decide on the basis of “facts available” only
under the specific conditions of Article 6.8 AD Agreement.4

12. Article 6.8 AD Agreement permits the authority to decide on the basis of facts available only
in cases “in which any interested party refuses access to, or otherwise does not provide, necessary
information within a reasonable period or signific antly impedes the investigation”. Article 6.8 does
not permit an authority to resort to facts available merely because a respondent interested party, which
has filed a complete substantive re sponse, does not meet certain qu antitative requirements regarding
its import share.

13. The decision to expedite the review may lead to the exclusion of relevant evidence from the
sunset review investigation, in a manne r inconsistent with Article 6.1 and 6.2 AD Agreement.
Moreover, it has the additional effect of largely relie ving the investigating authority of the obligation
to investigate imposed on it by Article 11.3 AD Agreement. The European Communities therefore
considers that DOC’s regulations, as well as the deci sion to expedite the review in the present case,
are incompatible with Articles 11.3 and 6.1, 6.2, and 6.8 AD Agreement.

14. Argentina has also challenged the provisions of United States law which provide that in
certain cases, a respondent interested party is deemed to have waived participation in the
proceedings.
5 The European Communities notes that the United States has responded that DOC did
not apply the waiver provision in the proceedings concerning Siderca.6

15. This notwithstanding, the European Commun ities considers that the provisions of United
States law as such are incompatible with the AD Agreement. DOC’s regulations provide that failure
by a respondent interested party to file a complete substantive response will be considered as a waiver
of participation in the sunset review. 7 Under United States law, the waiver has the effect that the
administering authority shall conclude that revocation of the order or termination of the investigation
would be likely to lead to continuation or recurrence of dumping with respect to that interested party.8

16. If a respondent interested party fails to pr ovide necessary information, Article 6.8 AD
Agreement provides that the investigating authority may decide on the basis of the facts available.
However, no provision of the AD Agreement allows the investigating authority to simply assume that
dumping is likely to continue or recur. By provid ing that, in the absence of a complete substantive
response, the investigating authority will conclude , without further investigation, that dumping is
likely to continue or recur, United States law is establishing a presumption which has no basis in the
AD Agreement. The waiver provisions as such are ther efore incompatible with Articles 11.3 and 6.8
AD Agreement.

4. United States interpretation of Article 11.3 of the AD Agreement in isolation from the
rest of the AD Agreement
17. The foundation of the United States’ defence is its assertion9 that:

4 Panel Report, Argentina – Floor Tiles para. 6.20; Panel Report, Egypt – Steel Rebar, para. 7.147.
5 Argentina's First Written Submission, para. 109 and following.
7 Section 351.218(d)(2)(iii).
8 19 USC § 1675(c)(4)(B).

“Article 11.3 is the only provision of the AD Agreement that sets forth the
substantive requirements for determining whether an order should be revoked five
years after its imposition.” (emphasis added)
18. Thus, according to the United States, procedural provisions aside, an investigating authority is
free to ignore all other provisions of the AD Agreemen t when applying and interpreting Article 11.3.
As the United States puts it10:

“In sum, aside from the obligations containe d in Article 11.3 and those provisions of
Articles 6 and 12 discussed above, the AD Agreement leaves the conduct of sunset
reviews to the discretion of the Member concerned.” (emphasis added)
19. The European Communities does not agree with that assertion. We identify (non-
exhaustively) at least six provisions of the AD Ag reement that include requirements that are more
than merely procedural, and which an investigati ng authority may not ignore in a sunset review
investigation and determination. They are: Article 1; Article 2; Artic le 3; Article 4; Article 9; and
Article 11.1.

20. The European Communities considers that it cannot be said that Article 1 of the AD
Agreement is wholly irrelevant to the applicatio n and interpretation of Article 11.3. Article 1 is
entitled “Principles”. It refers to the rules set out in Article VI GATT 1994. It twice refers to the
“provisions” of the AD Agreement, without qualification or restriction – that is, to all of them,
including Article 11.3. An investigating authority ca nnot therefore ignore the principles set out in
Article 1 of the AD Agreement when applying an d interpreting Article 11.3 , any more than it can
ignore Article VI GATT 1994.

21. Similarly, the European Communities does not ag ree with the United States when it asserts, in
the above quotation, that an investigating authorit y is free to ignore Article 2 of the AD Agreement
when applying and interpreting Article 11.3. Indeed, th is bare assertion is not one that, ultimately, the
United States is able to sustain, itself admitting that :

“Article 2, therefore, provides the general meaning
 of the term “dumping” as it is
used throughout the AD Agreement, including in Article 11.3.”11 (emphasis added)
22. The same comments apply with respect to Ar ticle 3 of the AD Agreement, concerning the
determination of injury. Article 11.3 does not “othe rwise specify” – so, in accordance with the terms
of footnote 9 of the AD Agreement, the term “injur y” in Article 11.3 must be taken to mean what is
set out in the definition. The defined term in footnote 9 is “injury” not, as the United States would
have it, “determination of injury”, which is simply the title of Article 3.
12 It may be that the United
States wishes that the title of Article 3 would have b een used in the definition in footnote 9, instead of
the term “injury”. That is not, however, what the text of the AD Agreement provides for.

23. The European Communities further notes that Article 11.3 of the Agreement contains the
words “domestic industry”. Article 4 of the Agreement contains the “definition of domestic industry”.
The European Communities does not therefore agr ee that an investigating authority can ignore
Article 4 of the AD Agreement when applying and interpreting Article 11.3.

24. Similar comments may be made with rega rd to Article 9 of the AD Agreement, which
concerns not only the collection of anti-dumping du ties, but also their “imposition”. Article 11.3 of
the AD Agreement expressly refers to five years from the “impositio n” of the duty; it also refers to

12 US First Written Submission, paras. 289 to 292.

“the expiry of the duty”, meaning the expiry of the imposition of the duty; and to the rule that “[t]he
duty may remain in force” meaning the imposition of the duty may remain in force. Thus, a decision
under Article 11.3 not to terminate the duty is a decision to impose the duty for a further period of up
to five years. The European Communities does not therefore agree that an investigating authority is
entitled to proceed without any rega rd whatsoever to Article 9 of the AD Agreement when applying
and interpreting Article 11.3.

25. As outlined in our written submission, Article 11.1 of the AD Agreement also applies to
sunset review investigations and determinations, as the Appellate Body has confirmed.
13 T h e
European Communities does not therefore agree w ith the United States when it asserts that an
investigating authority is free to ignore Article 11.1 of the AD Agreement when applying and
interpreting Article 11.3.

26. We conclude that the foundation of the Unit ed States’ defence in this case is manifestly
erroneous.

5. Likely continuation of dumping
27. We would now like to make some comments in relation to the determination of likely
continuation of dumping.

28. First, responding to certain assertions made by the United States, 14 we would like to comment
on the precise nature of the determination in this case. It is in the issues and decisions memorandum, 15
Section 1, the sub-sectio n entitled “Department’s Position”, final paragraph, final sentence, which
states that DOC finds that dumping has continued over the life of the Argentine order. The only
reason given for that finding is the dumping margin calculated in relation to the original period of
investigation (1 January to 30 June 1994).

29. We conclude that the finding is one of continuation of dumping and that the sole basis for that
finding was the original dumping margin calculated by reference to the period 1 January to
30 June 1994. Thus the determination was based on out-of-date data together with the prospective
determination.

30. Second, we would like to re-iterate the im portance of Article 11.1 of the AD Agreement,
which the Appellate Body has correc tly confirmed is releva nt to the interpretation of Article 11.3.
16
The text of Article 11.1 AD Agreement, and particul arly its use of the present tense, clearly confirms,
in the opinion of the European Communities, that there must be a minimum temporal relationship
between a finding of dumping and the imposition of a duty. A dumping determination has a shelf-life.
It is not forever. Thus, once the relevance of Ar ticle 11.1 of the AD Agreement is acknowledged – a
relevance erroneously denied by the United States – the inevitable outcome of the analysis becomes
clear.

31. Third, the European Communities does not agr ee with the unqualified assertion made by the
United States that in a sunset review investigation “an authority is considering what will happen in the
future”.17 The investigating authority must also consider what happened in the past. The United

13 Appellate Body Report, US – Carbon Steel from Germany , para. 70; Panel Report, EC-Tube and
Pipe, para. 7.113.
15 Exhibit ARG-51.
16 Appellate Body Report, US – Carbon Steel from Germany , para. 70; Panel Report, EC – Tube and
Pipe, para. 7.113.

States admits this in paragraph 151 of its First Wr itten Submission, when it admits that the authority
will consider information about “prior and current dumping margins”.

32. Fourth, the European Commun ities does not agree with the distinction drawn by the United
States between “the existence of a dumping margin” and “the magnitude of a dumping margin”, 18 at
least for the purposes of the present case, which concerns the continuation of an alleged margin of just
1.36 per cent. Given such a small alleged margin, it is impossible to be certain whether or not it exists
“in general terms”, without calculating its magnitud e (and sign) in a meaningful and mathematical
way by reference to the rules in Article 2 AD Agre ement. Furthermore, if the only known previous
measurement was made (years earlier) using rule s now known to have influenced the outcome
decisively one way rather than the other, it is imposs ible to rely on that earlier measurement in order
to assert that, in general terms, the margin still ex ists, without in fact investigating and determining its
current magnitude and sign. And it is doubly problematic to proceed in that way when what is
asserted is the existence of a continued margin, and when the means of measuring that margin have, in
the intervening period, changed as a matter of law.

33. Fifth, the United States makes much of its as sertions that Siderca had ample opportunity to
submit information to the investigating authority; and insists that the relevant factual information is
that “… contained in the administrative records of Commerce and the ITC …”.
19 So be it. The factual
information on the basis of which Siderca’s dumping margin, if any, during the period from 1 January
to 30 June 1994, was calculated and could again be calculated is in DOC’s administrative records. All
DOC would have needed to have done would have been to run the data through a standard computer
programme - little more than the push of a button . Unnecessary, says the United States, because in
general terms there is du mping as defined by Article 2 AD Agreement ( I know a dumping margin
when I see one ) and it is certain that if I make a specif ic measurement the presence of dumping will
be confirmed. But in circumstances where it is in fa ct certain that specific measurement will reveal no
dumping at all, and all the data is already in the ha nds of the investigating authority, in the opinion of
the European Communities, such an approach is not consistent with the requirement that an authority
conduct an unbiased and objective investigation.

34. Sixth, in US-DRAMs, the Panel concluded :

“… the scope of application of the AD Agre ement is determined by the scope of the
post-WTO review. Any aspects of a pre-WTO measure that are not covered by the
scope of the post WTO-review do not become subject to the AD Agreement by virtue
of Article 18.3 of the AD Agreement. By way of example, a pre-WTO injury
determination does not become subject to the AD Agreement merely because a post-
WTO review is concluded relating to the pre-WTO determination of the margin of
dumping.”
20
35. Assuming, for the sake of argument, that this is correct, it follows that any aspect of a pre-
WTO measure that is covered by the scope of the post WTO-review does become subject to the AD
Agreement. The critical question then becomes whet her or not, if there woul d be a post-WTO review
covering the aspect of dumping, in which reliance would be made on a post-WTO dumping
determination inconsistent with the Agreement, th e review determination co uld be attacked on the
grounds that the original determination is flawed. If the answer to this question is in the affirmative,
then it follows from the above quotation, cited with approval by the United States, 21 that, by virtue of
Article 18.3 of the AD Agreement, the same would apply when, as in the present case, the original
dumping determination was made under the Tokyo Round Agreement. The Panel must answer this

critical question in the affirmative, because the United States itself affirms that if, in the original
determination, there is some brea ch of Article 2 of the AD Agreemen t “in general terms”, the review
determination will also be vitiated.
22 US – DRAMs therefore confirms that the fact that the original
determination was made under the Tokyo Round Agreement offers no valid defence for the United
States. The United States cannot escape this conclusion in this case particularly because it made a
single determination of continuation of dumping, spanning the original investigation period, the life of
the order, and stretching into the future.

6. Zeroing

36. With respect to zeroing, we would like to ta ke this opportunity to re-iterate our agreement
with the arguments presented not only by Argentina, bu t also by Korea, at pages 2 to 7, 12 and 14 of
its written submission; by Japan, at pages 1 to 3, 5 to 8 and 19 of its written submission ; and by the
Separate Customs Territory of Ta iwan, Penghu, Kinmen and Matsu, at pages 2 to 4 of its written
submission. The relationship between Articles 2 and 11 of the AD Agreement is such that the United
States was not entitled to use, in the contested sunset determination, the original dumping
determination made in respect of the period 1 January to 30 June 1994 – a determination that involved
zeroing inconsistent with Article 2 of the Agreement – as the sole basis for its determination of
continuation of dumping.

 Thank you for your attention.

I. INTRODUCTION
1. Mr. Chairman and distinguished Members of the panel, on behalf of the Government of
Japan, I thank you for your attention to this import ant matter. This morning, we will not repeat our
arguments in our written submission. Rather, we wo uld like to focus on certain arguments presented
by parties that we did not address in detail in our written submission. Before discussing specific
issues, Japan would like to note that the panel report in US – Carbon Steel from Japan
1 is currently
pending before the Appellate Body. It is regretta ble that the schedule of this panel meeting does not
allow us to offer an argument based on the Appell ate Body report. Japan believes that the Appellate
Body will accept our arguments and respectfully requests this Panel to carefully review its analysis.

2. First of all, we would like to briefly touch upon the request by the US for preliminary ruling
under Article 6.2 of the DSU. We don’t intend to make a detailed argument on this matter. We
confine ourselves to saying that we have had no particular problem with the panel request of
Argentina, when drafting our third party submission.

II. ARGUMENT
A. D
UMPING DETERMINATIONS IN SUNSET REVIEWS
1. The US arguments on requirements for “dumpi ng” determination in sunset reviews are
incorrect
3. The United States confuses the determination of “dumping” with the precise calculation of
future dumping margins, and then attempts to rej ect the application of Article 2 to Article 11.3. 2
These arguments must be rejected.

4. The US argument does not recognize th e significance of the terms “continuation or
recurrence” in Article 11.3. The words “determine” and “continuation or recurrence” in Article 11.3
require the authorities to determine whether the dumping currently exists at the time of a sunset
review and how the current state is likely to continue or change at a point in the future. Focusing only
on the future event, the US fails to give any meaning to these explicit terms in Article 11.3.

5. Contrary to the US argument, Article 2 does not require the US authority to calculate
precisely future dumping margins. The authoriti es’ discretion, however, is not unlimited. As
discussed in our third party submission, the aut horities must base its determination on credible
evidence in accordance with Articles 2 and 11.3. To determinate the current state of dumping, the
authorities must have the credible evidence show ing a positive margin of dumping, which may be
calculated in the sunset review, or in some case s, in the most recent administrative review. To
determinate that the dumping is likely to continue or recur, the authorities must have the credible
evidence showing the projection of the export price and the normal value of the product at a point in
the future. In both determinations , precise calculation of dumping margin is not the requisite. Thus,
US argument should be rejected.

1 Panel Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon
Steel Flat Products from Japan, (“US – Carbon Steel from Japan”), WT/DS244/R (14 August 2003).

2. Dumping determination based on margins ca lculated in a pre-WTO proceeding using
the zeroing methodology is WTO-inconsistent
6. The United States argues that Article 18.3 prevents Argentina from challenging the validity of
the dumping margin calculated in the pre-WTO proceeding.3 We disagree.

7. Contrary to the US argument, Article 18.3 exp licitly sets forth that the provisions of the AD
Agreement shall apply to “reviews of existing measures .” This clarifies that the entire process of the
sunset review of this OCTG case is subject to th e current AD Agreement, including the establishment
and evaluation of evidence. The panel report in US – DRAMs further clarified that the dumping
margins in the original investigation, when it is us ed as the evidence in a sunset review, must be
consistent with the provisions of the AD Agreemen t. The panel has specifically stated “the AD
Agreement applies to those parts of a pre-WTO measures that are included in the scope of a post-
WTO review.”4 The scope of a post-WTO review, a sunset review in this case, is not limited to the
determination itself, but extends to evidence, on which the determination of the sunset review is
based. The authorities cannot make a WTO-consistent determination, if its evidentiary basis is WTO-
inconsistent. Therefore, the determination base d on the margin of dumping calculated in a pre-WTO
proceeding using the zeroing methodology, which is in consistent with Article 2, is inconsistent with
Articles 2 and 11.3 of the AD Agreement.

B. INJURY DETERMINATIONS IN SUNSET REVIEWS
8. The US argument on footnote 9 5 of the AD Agreement is not based on the interpretation of its
ordinary meaning, and thus must be rejected. As discussed in our third party submission, the first
phrase of footnote 9 “{u}nder this Agreement” clar ifies that the term “injury” throughout the whole
AD Agreement, including the term in Article 11.3 shall be understood in accordance with footnote 9.

9. The phrase in the said footnote “shall be interp reted in accordance with the provisions of this
Article”6 further clarifies application of substantive ru les in Article 3 to Article 11.3. The phrase
“likely to lead to continuation or recurrence” in Article 11.3 does not change the core concept of
“injury”. To find a “recurrence” of injury, for example, the authorities must first find that injury
through the effects of dumping ceased, and then must find that the injury will recur at a point in the
future. These analyses do not aff ect the substantive requirement that the authorities must find injury
based on positive evidence and on objective examinati on of the effect of dumped imports on prices
and the volume of dumped imports. In the same ve in, the requirement for evaluating economic factors
listed in Article 3.4 as well as the causation and non-attribution requirements under Article 3.5 must
be satisfied under the sunset review proceeding.

10. The United States argues that likelihood of injury as defined in Article 11.3 requires
“decidedly different analysis”7 from that for the injury analysis in the original investigation. Contrary
to the US argument, Article 3 expects prospective analysis even in the original investigation.
Footnote 9 and the provisions of Article 3 clarify that all the provisions of Article 3 apply to the
determination of the threat of material injury. Ar ticle 3.7 then sets forth that the authorities must
examine a situation at a point in the future, at which the effects of dumping will cause material injury
to the domestic industry. In a threat case, therefore, the examination of economic factors and
causations under Articles 3.4 and 3.5 also must be made at the point in the future. The analysis of

3 See US First Submission, paras. 258-260.
4 Panel Report, United States – Anti-Dumping Duties on Dynamic Random Access Memory
Semiconductors (DRAMs) of One Megabits or Above from Korea (“US – DRAMs”), WT/DS99/R
(29 January 1999), para. 6.14.
5 See US First Submission, paras. 290-296.
6 Ibid.
7 US First Submission, para. 301.

“injury” in sunset reviews is quite analogous to th e analysis required in Article 3 for the threat of
material injury. As such, Article 3 contemplates the prospective injury analysis, as Article 11.3
requires. The US argument thus has no merits.

11. In this OCTG case, the ITC failed to evaluate individual factors as listed in Article 3.4. The
ITC also failed to separate and distinguish the effects of known factors, which the ITC knew at the
time of the sunset review, from effects of dumpin g. The ITC’s injury dete rmination in the sunset
review, therefore, was inconsistent with Articles 3.4 and 3.5.

C. WTO-
INCONSISTENCY OF WAIVER PROVISIONS AS SUCH
1. Inconsistency of Waiver Provisions with Article 11.3 as such
12. As discussed in our third party submission, the Waiver Provisions are inconsistent with
Article 11.3 because they require DOC to make an affirmative dumping determination in a sunset
review without reviewing any evidence on the record or considering likelihood of continuation or
recurrence of dumping, where a responding party fails to submit its substantive response.

13. Japan would like to note that the US argument that “the affirmative likelihood determination
described in section 751(c)(4)(B) is lim ited to the party that failed to respond”
8 appears to contradict
with its own argument that a “dumping” determination in a sunset review must be made on an “order-
wide” basis.9 If an affirmative finding for a non-responding party pursuant to the Waiver Provisions
would be a basis of the overall order-wide dete rmination, then the af firmative finding would
necessarily affect adversely other parties. The United States should clarify this apparent discrepancy.

2. Failure of US arguments based on Article 6
14. The United States also attempted to justify its Waiver Provisions upon assumption that an
exporter is obliged to submit information within 30 days after the initiation of a sunset review.
10 Lack
of a response from a responding party, however, doe s not provide justification for the authorities to
make an affirmative dumping determination without any positive evidence. As discussed in our third
party submission, the authorities have the serious primary burden to demonstrate the likelihood of
continuation or recurrence of dumping. The bu rden cannot be shifted until the authorities establish
the prima facie case based on positive evidence.

15. In addition, it appears that the United States considers that a public
 notice of the initiation in
the Federal Register constitutes the questionnaire, and thus se rves as notice to responding parties
under Article 6.1.11 We disagree.

16. This requirement under Article 6.1 must be understood in the context of Article 6.1.1 and
Annex II. Article 6.1.1 requires that the responding parties shall be given at least 30 days for reply
after “receiving questionnaires.” Thus, the requirements of Article 6.1 is based on the action of the
authorities’ delivering questionnaires. In this case, DOC did not even issue questionnaires to
respondents. DOC stated in the Federal Resister only that interested parties may “respond to the
notice of initiation.” DOC cannot passively sit by and hope that all the relevant information will
simply appear, nor can DOC fault an interested party for not providing information that was not
specifically requested.

8 US First Submission, para. 146.
9 US First Submission, para. 214 (“the sunset determination is made on an order-wide basis, not a
company-specific basis.”)
11 See US First Submission, paras. 222-223.

17. Further, paragraph 1 of Annex II provides that the authorities shall “ensure that the party is
aware that if information is not supplied within a reasonable time , the authorities will be free to make
determinations on the basis of the facts available. ” A public notice in the territory of a Member
cannot be a sufficient method to “ensure” that the party, which may be on the other side of the earth,
is aware that DOC will be free to determine on the ba sis of the facts available, if the party fails to
submit its response. DOC’s public notice, theref ore, does not satisfy the notice requirements under
Article 6.1.

3. Expedite review procedures are also inconsistent with Article 6.2
18. Japan notes that the rationale on the inconsistency with Articles 6.2 and 6.9 of the Waiver
Provisions discussed in our third party submission also may apply to DOC’s expedited review
procedures. DOC regulations on the expedite reviews provide that DOC does not make a preliminary
determination,12 and accordingly does not disclose to res ponding parties essential facts under Article
6.9, nor does DOC provide interested parties any opportunity to comment on these essential facts
under Article 6.2. Thus, DOC’s expedited review pr ocedures are also inconsistent with Articles 6.2
and 6.9.

D. WTO-
INCONSISTENCY OF THREE SCENARIOS IN SUNSET POLICY BULLETIN AS SUCH
19. The United States argues that the Sunset Policy Bulletin must have “functional life of its own”
and must be “mandatory” under its domestic jurisprudence to be WTO-inconsistent as such. 13 The
alleged criteria, however, are not provided in an y provision of WTO Agreements nor have been
confirmed by the Appellate Body.

20. Even assuming that the criteria of “functional life of its own” and “mandatory” nature of the
instruments are relevant, the manner to establish th at an instrument meets the criteria should not be
limited to the mere language of the instrument. The Appellate Body in US – Carbon Steel has
explained that a legal instrument is reviewable “as such” upon showing “consistent application” of the
instrument, among other evidence.14

21. In this dispute, Argentina demonstrated that DOC applied the three scenarios in the Sunset
Policy Bulletin consistently to all sunset reviews. Th e United States argues that DOC “may” depart
from the Sunset Policy Bulletin , and that “Sometimes Commerce ‘normally’ will determine
likelihood, and at other time it ‘normally’ will not”.15 The evidence, however, points to the contrary.
DOC has strictly followed the three scenarios in all sunset reviews, and has never departed.
Moreover, the mere language of “normally,” inserted immediately preceding the mandatory term
“will,” does not relieve a Member from WTO-inconsis tency inquiry as such. The three scenarios are
therefore reviewable administrative procedures under Article 18.4.

12 See Appendix VIII-B-Schedule for Expedited Sunset reviews in DOC sunset regulations, 63 Fed. Reg.
13516, 13525 (20 March 1998) (Exhibit US-3)
13 See US First Submission, paras. 194 and 200.
14 See Appellate Body Report, US – Carbon Steel, para 154.
15 US First Submission, para. 181.

III. CONCLUSION
22. For the foregoing reasons, Japan respectfully requests this Panel to clarify that the United
States acted inconsistently with Ar ticles 2.1, 2.4, 3.1, 3.4, 3.5, 6.1, 6.2, 11.3, and 18.4 of the AD
Agreement and Article XVI:4 of the WTO Agreement.

ANNEX D-5

THIRD PARTY ORAL STATEMENT OF MEXICO

10 December 2003

Distinguished Members of the Panel

1. The main point of this dispute is compliance by the United States with its obligations under
Article 11.3 of the Anti-Dumping Ag reement. The obligation consists in terminating definitive anti-
dumping duties after they have been in force for five years, unless it can be established that the
requirements in the same article for maintaining them in force are met. Those requirements are that,
in a review conducted under the terms of Article 11.3 of the Agreement, and other articles that are
also applicable, it is determined that the expiry of the duty would be likely to lead to continuation or
recurrence of dumping and injury.

2. The main point of this submission is to emph asize that, regardless of the procedural method
used by the United States Department of Commerce, whenever any interested party of the industry in
that country has requested the continuation of anti-dumping measures, the Department of Commerce
has unfailingly found a justification to arrive at a po sitive determination of continuation or recurrence
of dumping and injury.

3. Argentina has demonstrated in its submission the existence of a presumption, which operates
without exception and without analysis in every case. The case of oil country tubular goods from
Mexico, another case appearing in the same group of measures imposed in 1995 and included as
Tab 179 in Exhibit 63 of Argentina's submission, is another very clear example. In this case the
Department of Commerce decided to conduct a five-year review or sunset review. The background to
that review was four annual reviews in which TAMSA, the main Mexican export firm, which
participated in all of them, had had a dumping marg in of ZERO in the last three reviews. YES, I
repeat, the Mexican firm had a dumping margin of zero in three consecutive reviews.

4. Despite this, and on the basis of the pattern of irrefutable presumption established by the SAA
and the SPB, the Department of Commerce arrived at a positive determination of continuation or
recurrence of dumping without making any positive an alysis or conducting a review based on actual
evidence to substantiate its decision. This clearly shows that, over and above the arguments to try and
"dress up" each case, the slightest participation by United States industry automatically leads to a
positive determination by the Department of Commerce, something that has occurred in 100 per cent
of the cases of five-year reviews or sunset reviews conducted to date.

5. Lastly, allow me to refer to the preliminary objections to Argentina's request to establish a
Panel. In this connection, the Government of Me xico considers that the request fully complies with
DSU Article 6.2 and that it is a delaying tactic by the United States Government to hold back an
analysis by this Panel of the merits of the case. Should the Panel decide to adopt an additional
procedure to meet those objections, Mexico respectfull y requests that its rights as a third party to the
dispute be respected.

ANNEX D-6

THIRD PARTY ORAL STATEMENT OF THE SEPARATE CUSTOMS
TERRITORY OF TAIWAN, PENGHU, KINMEN AND MATSU

10 December 2003

 Thank you, Mr. Chairman and members of the Panel. We would also like to thank the
delegations of Argentina and the United States for a llowing us the time to express our views in this
dispute as a third party.

 Pursuant to our strong systemic interest in the proper interpretation of relevant WTO
provisions dealing with sunset reviews, we presen ted in our third party submission what we consider
to be the correct reading of Article 11.3 of th e Anti-Dumping Agreement. We made three main
points:

 First, we believe that Articles 2 and 3 of the Anti-Dumping Agreement should be taken into
account during sunset reviews. The text of Article 11.3 is unambiguous with regard to the
requirements that authorities must meet in order to apply an anti-dumping order beyond five years: the
authorities are obliged to “determine, in a review…that the expiry of the duty would be likely to lead
to continuation or recurrence of dumping and injury [emphasis added].” While we recognize that
the nature of a sunset review may differ from an original investigation because of the prospective
element indicated by the words “likely to lead to continuation and recurrence”, the underlying
determination to be made by the authorities, nevertheless, relates directly to dumping and injury.

 Article 2 and Article 3 of the Anti-Dumpin g Agreement govern the “Determination of
Dumping” and the “Determination of Injury.” These two articles inform Members as to the principles
to be applied in determining what constitutes dumpin g, and what constitutes injury. Be it current or
prospective, original or sunset review, the authorities, in making any determination on dumping and
injury, cannot avoid referencing Article 2 and 3 because the two articles are the only articles in the
Anti-Dumping Agreement that deals with the question of what constitute dumping and injury.
Therefore, Article 11.3, by instru cting the authorities to make a de termination on the likelihood of
continuation or recurrence of dumping and injury, mu st necessarily be also instructing the authorities
to apply, wherever appropriate, Article 2 and 3.

 Moreover, we believe that the text of Article 11.3 includes an obligation to make a positive
determination that takes into account information re levant to the determination at hand, namely the
likelihood of continuation or recurrence of dumping and injury. This determination should be
separate from the original investigation. Past determination of dumping does not inform as to the
likelihood of future dumping. Similarly, past injury based on past dumping margin does nothing to
show the likelihood of future injury caused by dumping. Therefore, data and information from the
original investigation must be updated and made relevant to the specific determination for sunset
review.

 In making that positive sunset determination, authorities cannot completely discard the
disciplines outlined by Articles 2 and 3. Article 11.1 provides that “an anti-dumping duty shall
remain in force only as long as and to the extent necessary to counteract dumping which is causing
injury [emphasis adde d].” The Panel in EC – Pipe Fittings from Brazil explained that Article 11.1
contains “a general and overarching principle, the modalities of which are set forth in paragraphs 2
(and 3) of that Article.” Article 11.1 thus informs Members of the purpose behind Article 11.3, which
is the termination of the anti-dumping order within fi ve years, except under limited circumstances. In

order for Article 11.3 to achieve that purpose, the su nset determination must follow the disciplines of
Articles 2 and 3. Otherwise, Members would be ab le to conduct a cursory sunset review and extend
the anti-dumping duty indefinitely, rendering Article 11.1 and 11.3 meaningless.

 Second, we stated in our third party submi ssion that in our view, the expedited review
procedure resulting from a waiver determination, pur suant to 19 USC §1675(c)(4)(B), is inconsistent
with Article 11.3. As we have already stated above, we consider the text of Article 11.3 to require the
authorities to make a positive determination on th e likelihood of continuation or recurrence of
dumping and injury. On its face, 19 USC §1675(c)(4)( B) does not allow such a determination by the
authorities once a foreign interested party is deemed to have waived its participation. Instead, the
Department of Commerce is directed automatically to conclude, once participation is deemed waived,
that the termination of the order would likely lead to continuation or recurrence of dumping. In our
view, a review with the finding already mandated by statute can hardly be considered a
“determination” within the meaning of Article 11.3. Therefore, 19 USC §1675(c)(4)(B) is
inconsistent with Article 11.3.

 Third, with regard to the issue of irrefutable presumption, we disagree with Argentina that an
irrefutable presumption of likely dumping based on the Statement of Administrative Action and the
Sunset Policy Bulletin can be inferred from the statistics on US sunset review determinations
compiled by Argentina. We do believe, however, that the statistics raise a serious doubt as to the
objectivity of the authorities in conducting sunset reviews. Therefore, we see the fact that dumping
was found likely to continue or recur in 100 pe r cent of the sunset reviews in which a domestic
interested party participated in the proceeding s as strong evidence in establishing Argentina’s prima
facie case of a violation of Article 3.1 of the Anti -Dumping Agreement. Furthermore, in failing to
make an objective examination with regard to injury, the authorities did not properly conduct its
sunset review, thus violating Article 11.3.

 Finally, with regard to the preliminary issue, we consider it unnecessary in this case for us, as
a third party, to make substantial comments on a purely procedural question. However, we would just
like to state that we did not encounter any difficulties related to DSU Article 6.2 in preparing our third
party submission and oral statement.

 Members of the Panel, in sum, we believe th at Articles 2 and 3 apply to sunset reviews and
that the United States has acted inconsistently w ith Article 11.3 of the Anti-Dumping Agreement.
The Panel should make its finding accordingly.

 Thank you.

ANNEX D-7

OPENING AND CLOSING ORAL STATEMENTS OF ARGENTINA –
SECOND MEETING

Opening Statement – 3 February 2004

I. INTRODUCTION
1. Mr. Chairman, members of the Panel, on 9 January 2004, the DSB adopted the report of the
Appellate Body in Sunset Review of Steel from Japan . This decision expressly confirms the positions
that Argentina has taken throughout this dispute about the obligations imposed on investigating
authorities during sunset reviews.

2. The Appellate Body made clear that Artic le 11.3 imposes significant and substantive
obligations on any WTO Member seeking to maintain an anti-dumping order beyond its scheduled
expiration date. Indeed, the Appellate Body em phasized the “exacting nature” of the commitments
under Article 11.3 (para. 113), and stated that authorities conducting a sunset review “must act with
an appropriate degree of dilig ence” before arriving at a “reasoned conclusion on the basis of
information gathered as part of a process of rec onsideration and examination.” (para. 111) Nowhere
in the Appellate Body decision is there an endors ement of “passivity” and “presumptions.” To the
contrary, the Appellate Body stressed that “Artic le 11.3 assigns an active rather than a passive
decision-making role to the authorities.”

3. Even prior to the Appellate Body decision, the US position in the current dispute lacked
credibility. Now, however, the US position has become completely untenable.

4. The US Second Submission provides scant reference to the Appellate Body decision.
Moreover, when the decision was adopted by the DSB on 9 January, the US statement – incredibly –
made no mention at all of Article 11.3. Unfortunately for th e United States, the Appellate Body’s
decision in Sunset Review of Steel from Japan is dispositive on many of the issues currently before
this Panel. Argentina highlighted the importance of the decision in its Second Submission, and will
do so again this morning.

5. In the First Meeting of the Parties, Argentina explained the simple facts giving rise to this
dispute. These facts led to several claims that US law, both as such and as applied, violates the
substantive obligations of the Unite d States. Argentina stands firmly behind all of its claims, which
find significant support from the Appellate Body’s most recent articulation of the sunset obligation in
Sunset Review of Steel from Japan.

6. In Argentina’s view, there is no basis to as sert that the US Department of Commerce’s (the
“Department”) sunset review of Argentine OCTG was decided by an analysis of the facts. Rather, the
Department’s determinations make clear that the outcome of the case was the result of the application
of the waiver provisions. Argentina respectfully as ks that the Panel look to the Department’s written
determination as the only valid explanation of what happened to Siderca/Argentina in the sunset
review of Argentine OCTG. Indeed, the Department’s application of the waiver provisions to Siderca
(or, at a minimum, to Argentina) is plainly indicated in the Department’s Issues and Decision
Memorandum. (ARG-51 at 5) It is telling that the United States resorts to: (1) ex post facto
rationalizations in efforts to expl ain that its sunset determinations do not mean what the words in
those determinations indicate; and (2) argumentatio n that any confusion resulting from the language
of the Department’s determinations is simply the result of “inartful” drafting.

7. Nevertheless, even when giving the United States the benefit of the doubt that the Department
actually engaged in an analysis of facts, the US position on the core issue is unsustainable. Put
simply, the legal and factual basis for the United States’ decision to invoke the exception in
Article 11.3 is in direct conflict with the “ex acting” obligations of Article 11.3. Indeed, a
1.36 per cent dumping margin from the original investigation (calculated using the WTO-inconsistent
practice of zeroing negative margins) and a declin e in import volume – and nothing more – whether
taken together or considered alone are an insuffic ient basis for the Department’s determination of
likely dumping under Article 11.3. This is cl ear after the Appellate Body’s decisions in Steel from
Germany, and Sunset Review of Steel from Japan.

8. It is also clear that when the domestic industry is interested in maintaining the measure, no
respondent interested party has ever overcome the WTO-inconsistent presumption of likely dumping
embodied in the US statute, the Statement of Administrative Action (“SAA”), and the Sunset Policy
Bulletin, and as evidenced by the Department’s consistent practice. The US industry has 223 wins
and 0 losses on the issue of likely dumping. (See ARG-63 and ARG-64).

9. As for the likelihood of injury determina tion, analysis of the US International Trade
Commission’s (the “Commission”) sunset determination in this case shows that the Commission,
consistent with its practice, did not engage in any me aningful analysis of whether injury is “likely” to
continue or recur, but rather based its determination on isolated factors grounded in speculation that
cannot satisfy the meaning of the term “likely” – wh ich, as the Appellate Body stated in December,
means “probable.” Further, the Commission made its determination on a cumulated basis of all
countries subject to the measure, which has the effe ct of negating the rights of individual Members
who are subject to a cumulated analysis.

10. Argentina will not repeat all of the arguments set forth in its First and Second submissions,
and in its first oral statement. Today, Argentina will first review the natu re of the Article 11.3
obligation in light of the Sunset Review of Steel from Japan case. Second, Argentina will demonstrate
that the purported factual basis for the Department ’s determination of likely dumping is patently
inconsistent with the requirements of Article 11.3. Third, Argentina will highlight the contradictions
that continue in the US position, noting several in stances where the US asks the Panel not to read
literally the words used in the sunset determination. Fourth, Argentina will demonstrate that none of
the US arguments is credible in light of the WTO- inconsistent presumption that is applied in all
Department sunset reviews in which the domestic industry is interested. Fifth, Argentina will
demonstrate the Commission’s violations of the Anti-Dumping Agreement. Sixth, Argentina will
briefly comment on the preliminary objections that the United States has ra ised, that Argentina has
rebutted, and that now seem to be abandoned. Finally, Argentina will offer its conclusions.

II. TERMINATION OF THE MEASURE IS THE RULE; THE EXCEPTION CAN BE
INVOKED ONLY THROUGH A “REVIEW” INVOLVING A “RIGOROUS
EXAMINATION” LEADING TO THE REQUISITE “DETERMINATION” UNDER
ARTICLE 11.3
11. The United States attempts to recast the Article 11.3 obligation as merely an obligation to
afford parties the opportunity to participate in su nset reviews. In paragraph 31 of its Second
Submission, the United States says: “the question in this dispute essentially is whether Argentina has
demonstrated that Commerce did not provide resp ondent interested parties the opportunity to
participate in the review and present evidence.” Argentina could not disagree more; this case is about
substantive obligations also. The United States cannot evade the “exacting” obligations under
Article 11.3 by shifting the burden from the administering authority to respondent interested parties.

12. The United States completely ignores the unamb iguous statements of the Appellate Body in
Sunset Review of Steel from Japan about the significant and substantive obligations imposed by

Article 11.3, including the following: termination is the rule; continuation is the exception
(para. 104); the nature of the obligations to conduct a “review” and make a “determination”
Article 11.3 contains “exacting” obligations an d requires a “rigorous examination” (para. 113);
“dumping” as used in Article 11.3 means “dumping” in Article 2 (para. 109); the term “likely” in
Article 11.3 means “probable” (paras. 110-111); that the Sunset Policy Bulletin is a measure that is
subject to WTO-challenge (paras. 99, 101); that the Sunset Policy Bulletin might be shown – with
evidence of the Department’s consistent applica tion – to establish WTO-inconsistent presumptions
(paras. 177-178). The rights and obligations flowin g from Article 11.3 can hardly be characterized as
simply “procedural.”

13. As Argentina has repeatedly stressed – and as the Appellate Body has made clear – the
primary obligation of Article 11.3 is terminatio n of anti-dumping duties after five years. The
Appellate Body in Sunset Review of Steel from Japan reaffirmed the principle it first articulated in
Steel from Germany . Continuation of the measure is the ex ception, and is only permissible if the
authorities conduct a “review,” undertake a “rigorous examination” of the facts, and “determine” that
termination of the anti-dumping measure would be “lik ely” to lead to continuation or recurrence of
injurious dumping. (Appellate Body Report, Sunset Review of Steel from Japan, paras. 104, 114) The
Appellate Body also reaffirmed that, “[i]f any one of these conditions is not satisfied, the duty must be
terminated.” (Id. at para. 104)

14. As noted above, in interpreting the mean ing of the words “review” and “determine” in
Article 11.3, the Appellate Body noted the “investigatory and adjudicatory aspects” of Article 11.3
reviews and that “authorities conducting a sunset review must act with an appropriate degree of
diligence and arrive at a reasoned conclusion on the basis of information gathered as part of a process
of reconsideration and examination.” (Id. at para. 111)

15. With respect to the evidentiary basis for th e likelihood determination, the Appellate Body
affirmed the Panel’s statement that the authority must ground its determination on a “sufficient factual
basis.” (Id., paras. 114-115 (citing Panel Re port, para. 7.271)) In addition, the Appellate Body has
held that the authority must make a “fresh determin ation” in a sunset review that is forward-looking
and “based on credible evidence.” (Appellate Body Report, Steel from Germany, para. 88)

16. Despite the clear findings of the Appellate Body, the United States continues to argue that
Article 11.3 imposes only “limited requirements ” on Members. (US Response to Panel Questions,
para. 22) By focusing on procedure over substance, the United States seeks to shift the burden of the
obligation under Article 11.3 completely to respondent interested parties. In so doing, the United
States essentially ignores the “exacting nature ” of the obligation Article 11.3 imposes on the
importing Member in order to invoke the exception and justify the maintenance of an anti-dumping
measure beyond five years: that is, the obligation to “determine” in a “review” that termination of the
measure would likely lead to continuation or recurrence of dumping and injury.

III. THE LIKELIHOOD OF DUMPING
A. T
HE ALLEGED SUBSTANTIVE BASIS FOR THE DEPARTMENT’S LIKELIHOOD DETERMINATION
VIOLATES US WTO OBLIGATIONS
1. The Department’s reliance on the decline in import volume, and on the 1.36 per cent
margin from the original investigation and th e related deposit rate is legally insufficient
under Article 11.3
17. The US Second Submission argues that the Department’s likelihood determination was based
solely on two factors: “Commerce found that dumping duties were levied and collected, at the
dumping margins assigned in the or iginal investigation, against Argentine OCTG imported into the

United States during the five-year period preceding th e sunset review. Commerce also . . . found that
US imports of Argentine OCTG ha d declined substantially immediately after the order was imposed
and remained at depressed levels for the entire five-year period prior to the sunset review.” (US
Second Submission, para. 34)

18. A decline in import volume alone is a le gally insufficient basis for a Likelihood
Determination under Article 11.3. Following the imposition of the US anti-dumping measure on
Argentine OCTG, Siderca chose to stop exporting to the US market. The Appellate Body has
explained that declines in import volumes followi ng the imposition of anti-dumping duties can result
from many factors apart from the duties: “The cessation of imports . . . and the decline in import
volumes . . . could well have been caused or rein forced by changes in the competitive conditions of
the market-place or strategies of exporters, rather than by the imposition of the duty alone. Therefore,
a case-specific analysis of the factors behind a cessation of imports or a decline in import volumes
(when dumping is elimin ated) will be necessary
 to determine that dumping will recur if the duty is
terminated.” (Appellate Body Report, Sunset Review of Steel from Japan , para. 177 (emphasis
added)) Despite the fact that Siderca had developed a successful business strategy without relying on
the US market, the Department presumed that declining import volumes indicated that dumping
would be likely to continue or recur upon termination of the order. In doing so, it was following the
direction of the SAA and SPB.

19. The Department did not analyze the factor s behind the decline in imports of Argentine
OCTG. Nor did it request additional information from Siderca, which had pledged to cooperate fully.

20. The 1.36 per cent margin from the original in vestigation and the existence of a deposit
rate are not evidence of continued dumping and cannot serve as the basis for the Department’s
Likelihood of Dumping Determination. The United States explains a new theory in its Second
Submission regarding the continuation of dumping. It goes like this: a minimal quantity of OCTG
was imported into the United States in the 5 years following the imposition of the measure, the US
importer must have paid the 1.36 per cent deposit on the imports, and, because the importer did not
request a review, the deposits were converted into definitive anti-dumping duties, thereby proving that
dumping “continued.” The argument has major flaws.

• First , there is no mention of any of this on the record of the sunset review. The Department
simply stated that “there have been above de minimis margins for the investigated companies
throughout the history of the orders,” and therefore “dumping continued after the issuance of the
orders[.]” (Issues and Decision Memorandum at 5 (ARG-51)). There is no reference to the payment
of anti-dumping deposits constituting evidence of continued dumping.

• Second , the explanation given in the Issues and Decision Memorandum actually contradicts
the new explanation by the United States. Who are the “investigated companies” from Argentina to
which the Department refers? Everyone concedes that the only company ever investigated was
Siderca (a seamless pipe producer), and the Departme nt determined several times that Siderca did not
ship OCTG to the US for consumption in the US If Siderca, the only “investigated company,” did not
ship, how can there be “above de minimis margins for the investigated companies throughout the life
of the history of the orders.” Clearly, the statemen ts are simply wrong with respect to Argentina, and
just as clearly they contradict the new explanation that the importation of OCTG from other, non-
investigated, non-reviewed exporters constitutes the evidence of continued dumping.

• Third
, the Department keeps talking about the “entri es,” as if it had evidence on the record of
many entries of Argentine OCTG during the releva nt period. In fact, the Department had made
several findings in annual reviews that any entries, if they existed, were extremely isolated, and were
not explained on the record. To clarify th is issue, Argentina refers the Panel to Chart 4 (Exhibit
ARG-69), which summarizes the Department’s finding s with respect to import volume in the four
annual reviews that it had completed by the time of its sunset review determination. In the end, the

record show possibly two entries, both welded, one of which was 154 tons and the other of an
undetermined amount. We also know that the statistics used as the basis of the alleged volume of
imports in each review contained several errors ra nging from the misclassification of products to the
inclusion of non-consumption entries. Chart 4 also contains references to the Exhibit number so that
the Panel can review this evidence.

• Fourth
, the new explanation offered by the United States makes no sense. The fact that an
importer is required to pay a small anti-dumping duty deposit upon importation, and that the
Department does not conduct a review of the import s made by the importer, says absolutely nothing
about whether the imports are dumped or whether dumping has continued. Article 2 of the WTO
Anti-Dumping Agreement defines dumping in terms of a substantive analysis of export price and
normal value. Nothing in Article 2 provides that payment of a required deposit can subsequently be
“deemed” to be an admission of dumping either fo r Article 2 and certainly not for Article 11.3. The
United States cannot credibly argue that it has ever conducted such an analysis since the imposition of
the measure in August 1995. It is surprising that th e United States even offers this justification. The
United States often explains to its trading partners that the deposits required as part of its retrospective
assessment system are not evidence of dumping, and that it cannot determine whether dumping has
occurred until it performs a substantive review of the actual imports during the relevant period. ( See
Panel Report, US – Section 129(c)(1) , DS221, paras. 2.6-2.8), emphasizing the need for a substantive
analysis in an anti-dumping review in order to de termine whether dumping exists in a retrospective
system). The explanation in the Second Submission that these deposits prove the continuation of
dumping is simply wrong. Any duties that might have been collected resulted from the lack
 of an
administrative review, so that entries were liquidated without any substantive analysis of dumping.

21. For these reasons, the Panel must conclude that the United States had no evidence of
continued dumping at the time of the sunset determination, and that the new theory offered now by
the United States is nothing more than an ex post facto justification that the Panel must not consider.
Such justifications ca nnot be accepted. ( See Panel Report, Poultry from Brazil , DS241, para. 7.49
(“[W]e do not believe that, as a panel reviewing the evaluation of an investigating authority, we are to
take into consideration any arguments and reasons th at are not demonstrated to have formed part of
the evaluation process of the inve stigating authority); Panel Report, Argentina – Ceramic Tiles ,

22. Also, the United States still has never offered a logical explanation of what the 1.36 per cent
rate says about future dumping, let alone the likelihoo d of future dumping. The rate is historic, with
no relationship whatsoever to the forward-lookin g determination required to invoke the exception of
Article 11.3 and continue the me asure. As the Appellate Body made clear, “the likelihood
determination is a prospective determination. In other words, the authorities must undertake a
forward-looking analysis and seek to resolve the issue of what would be likely to occur if the duty
were terminated.” (Appellate Body Report, Sunset Review of Steel from Japan , para. 105). The
Appellate Body ruled that “mere reliance” on the de termination made in the original investigation is
not enough. (See Appellate Body Report, Steel from Germany, para. 88.) The Appellate Body rulings
reinforce Argentina’s view of the extreme and unfair situation presented in this case.

23. The Department’s reliance on the 1.36 margin from the original investigation and the decline
in imports cannot satisfy the obligation under Article 11.3.

2. Decisive reliance by the Department on a WTO-inconsistent margin as the basis for the
Likelihood Determination is inconsistent with Article 11.3
24. The United States claims that during sunset reviews “Members are not obligated to calculate
‘new’ dumping margins. They are merely obligat ed to provide respondent interested parties
opportunities to offer evidence in support of nega tive likelihood determination. Therefore, the
magnitude
 of dumping is not pertinent to making a determination with regard to likelihood of

dumping.” (US Second Submission, para. 37, footnotes omitted). This answer demonstrates how the
United States is attempting to recast the obligations under Article 11.3 and erroneously shift
responsibility from the administering authority (which holds the substantive obligations under
Article 11.3) to the exporters of the Member holding the right of termination under Article 11.3.

25. Argentina has not argued, and is not arguing, that Members are obligated to calculate a new
dumping margin in connection with a review conduc ted under Article 11.3. However, the Appellate
Body has made clear that reliance on a WTO-inconsis tent margin – such as a margin calculated using
the practice of zeroing – “taints” the likelihood de termination under Article 11.3. Specifically, the
Appellate Body found that “if a likelihood determination is based on a dumping margin calculated
using a methodology inconsistent with Article 2.4, th en this defect taints the likelihood determination
too.” (Appellate Body Report, Sunset Review of Steel from Japan, para. 130)

26. In this case, there can be no doubt that the 1. 36 per cent margin that the Department relied on
as the basis for its likelihood of dumping determination was based on a calculation method that is
inconsistent with Article 2.4. To calculate the 1.36 per cent margin, the Department applied “zeroing”
by setting all negative margins to zero, and summed the remaining positive margins. The effect was
to disregard the existence and magnitude of the negative margins in determining the amount of
“dumping” arising from the sales under review. Th is can be seen clearly in Exhibit ARG-52 to
Argentina’s First Submission and in Exhibit AR G-66 to Argentina’s Se cond Submission. ( See
Argentina’s Second Submission, paras. 43- 48). Th ese Exhibits demonstrate that there would have
been no dumping margin in this case without zeroing. In fact, without zeroing the margin would have
been negative 4.35 per cent

27. The Appellate Body recognized in Sunset Review of Steel from Japan that zeroing is not
consistent with Article 2.4. ( See paras. 134-135.) It does not yield a “fair comparison,” and it does
not accurately reflect whether the product, as a whole, is being sold at less than normal value. The
Appellate Body ruled that when a Member relies on a dumping margin in making a determination in
an Article 11.3 review, that margin must be WTO-consistent. ( See Appellate Body Report, Sunset
Review of Steel from Japan , para. 127) The Appellate Body explained that zeroing (whether in the
original investigation or otherwise) not only distorts the magnitude of the dumping margin, but may
also result in a positive margin that otherwise would not exist:

When investigating authorities use a zeroing methodology such as that examined in
EC – Bed Linen to calculate a dumping margin, whether in an original investigation
or otherwise, that methodology will tend to inflate the margins calculated. Apart
from inflating the margins, such a methodology could, in some instances, turn a
negative margin of dumping into a positive margin of dumping. As the Panel itself
recognized in the present dispute, “zeroing . . . may lead to an affirmative
determination that dumping exists where no dumping would have been established in
the absence of zeroing.” Thus, the inherent bias in a zeroing methodology of this
kind may distort not only the magnitude of a dumping margin, but also a finding of
the very existence of dumping. This conclusion led the Appellate Body to “reverse
the Panel’s consequential finding . . . that the United States did not act inconsistently
with Article 2.4 of the Anti-Dumping Agreement in the CRS sunset review by relying
on dumping margins alleged by Japan to have been calculated in a manner
inconsistent with Article 2.4.” ( See Appellate Body Report, Sunset Review of Steel
from Japan, para. 128)
28. To be clear, Argentina is not claiming that the original dumping determination violated US
WTO obligations because it was calculated based on the practice of zeroing negative margins.
Rather, Argentina challe nges the Department’s reliance on that margin as the basis for its
determination that dumping would be likely to continue under Article 11.3. The Appellate Body has

clarified that the Department may not rely on a dumping margin which is inconsistent with the
substantive standard of Article 2.4 as the basis for its likelihood determination under Article 11.3.

29. In Sunset Review of Steel from Japan , the Appellate Body clarified the application of these
principles in an Article 11.3 review, but ultimately did not find a violation by the United States. The
only reason that it did not do so was the fact that the Panel had not considered the evidence and had
not made a finding primarily because it decided that the disciplines of Article 2.1 did not apply to
Article 11 reviews. That view has been discre dited by the Appellate Body, and there can be no
question that reliance on margins calculated in a manner inconsistent with the substantive standards of
Article 2 may not serve as the basis for a likelihoo d determination under Article 11.3. The evidence
of zeroing in this case is square ly before this Panel. Argentina respectfully submits that the Panel
must consider this evidence and make the finding that was lacking in the panel decision before the
Appellate Body in Sunset Review of Steel from Japan.

3. The Department’s alleged application of facts available was inconsistent with
Articles 11.3, 6.1, 6.2, 6.8, 6.9, and Annex II
30. Assuming arguendo that the waiver provisions were not the basis for the Department’s sunset
determination in OCTG from Argentina, then the Department’s resort to the limited set of facts
available – the 1.36 per cent margin and the decline in import volumes – was inconsistent with
Articles 11.3, 6.1, 6.2, 6.8, 6.9, and Annex II. (See Argentina’s Second Submission, Section III.C.2)

31. The Panel need not search further than the Department’s own regulations to observe the
severe consequences of the decision to conduct an expe dited review in a case such as Argentina. It is
not, as the United States says, an issue of only ti me frame. For example, section 351.218(e)(2)(i)
virtually ensures that the only basis for the Depart ment’s likelihood determination will be the margin
from the prior determinations, which in this case is limited to the original investigation. The
regulation states that the Department will “rely” on the that margin except “under the most
extraordinary circumstances” in a full review
. Therefore, respondents in an expedited review such as
this have no chance of escaping the Department ’s “reliance” on the margin from the original
investigation, which by definition always will be a positive margin.

32. Articles 6.8 and Annex II permit an investigating authority to make determinations based on
“facts available” only where an interested party “does not provide[] necessary information within a
reasonable period or significantly impedes the inve stigation . . . .” Siderca, however, submitted a
complete substantive response to the Department’s notice of initiation and agreed to cooperate fully in
the investigation, and the Department never foun d that Siderca failed to cooperate. Thus, the
application of facts available against Siderca was inconsistent with Articles 6.8 and Annex II, and the
failure to disclose the essential facts infringed the substantive requirements in Article 6.9.

33. The United States apparently recognizes that the application of facts available to Siderca
would have been inconsistent with the Anti-Dumping Agreement, and for this reason argues that the
Department did not apply facts available to Siderca. ( See US First Submission, paras. 214, 221, 234-
236) According to the United States, the Department applied facts available to the “non-responding
respondents,” rather than to Siderca. (See id. para. 214) Again, the US assertion is flatly contradicted
by the Department’s Issues and Decision Memorandum (ARG-51 at 3) which does not mention any
non-responding respondents. The US assertion is yet another ex post facto rationalization. Moreover,
the US assertion is inconsistent with its previous explanation that the Department applied waiver to
the non-responding respondents. (US First Submission, para. 216)

34. Even if the Department had applied facts avai lable, whether to Siderca or to the so-called
non-responding respondents, the outcome is the same. Under the relevant provision, expedited sunset
reviews are conducted “without further investigation” on the basis of “the facts available.” (19 C.F.R.
§ 351.218(e)(1)(ii)(C)) Consequently, the Department ’s conduct of an expedited review in this case

precluded the Department from making the substantive and fresh “determination” required by
Article 11.3, and denied Siderca the full opportun ity to present evidence an d defend its interest, in
violation of Articles 6.1 and 6.2.

B. THE US ATTEMPT TO EXPLAIN THE DEPARTMENT’S SUNSET DETERMINATION AND ITS
SUNSET PROCEDURES CANNOT CURE US VIOLATIONS OF ARTICLE 11.3
1. The Waiver Provisions as applied in th e Department’s Sunset Review of Argentine
OCTG violates US obligations
35. As explained above, the Department’s affirm ative likelihood determination was not grounded
on a sufficient factual basis. In fact, Argentin a submits that the Department’s description of its
decision demonstrates that it deemed Siderca to have waived participation in the sunset review and
thus never engaged in any analysis in this case.

36. The Panel can disregard this set of US contradictory statements and ex post facto
justifications and simply look at the wo rds used by the Department itself in its Issues and Decision
Memorandum states: “In the instant reviews, the Department did not receive an adequate response
from respondent interested parties . Pursuant to section 351.218(d )(2)(iii) of the Sunset Regulations,
this constitutes a waiver of par ticipation.” (at 5 (ARG-51)(emphasi s added)) As with the aggregate
responses from Italy, Japan, and Korea, the Depa rtment found that Siderca’s complete substantive
response was “inadequate.” ( See Determination to Expedite at 2 (ARG-50); Issues and Decision
Memorandum at 3, 7 (ARG-51)) Therefore, the statement in the Issues and Decision Memorandum
that “the Department did not receive an adequate response from respondent interested parties” and
that “this constitutes a waiver of participation” leads to one incontrovertible conclusion: The
Department applied waiver to all respondent interested parties, including Siderca.

37. The Department’s application of waiver to Siderca precluded the Department from
conducting the “review” and making the “determination” required by Article 11.3, and denied Siderca
the opportunity to present evidence and defend it s interest. The Department’s sunset review of
Argentine OCTG was thus inconsistent with Articles 11.3, 6.1, and 6.2.

38. The United States has argued that the Department did not deem Siderca to have waived
participation in the sunset proceeding. (See US First Submission, paras. 211-213, 216; US Answers to
First Set of Panel Questions, para. 51) The US argume nt is not persuasive for two reasons. First, as
Argentina has just shown, the express wording of the Issues and Decision Memorandum flatly
contradicts the US assertion. Indeed, the United Stat es itself has recognized in these proceedings that
the language of the Issues and Decision Memorandum appears to indicate that the Department
deemed Siderca to have waived participation. (See US First Submission, n.216) For this reason, in its
answer to Panel Question 11, the United States essen tially asks the Panel to not read words that are
actually written and instead to replace the phrase “did not receive an adequate response” that is
unambiguously set forth in the Issues and Decision Memorandum with the phrase “did not receive a
complete substantive response” that the United States now asserts is what it meant to say. Similarly,
the United States asks the Panel to read “respondents from Japan, Korea, and Italy” when it wrote
“respondent interested parties.” ( See US Answers to First Set of Pa nel Questions, paras. 51-52)
Thus, the US argument is not simply an ex post facto rationalization, but rather a blatant attempt to
change the unambiguous language in the Issues and Decision Memorandum to other words that
comport with the explanation of the sunset syst em now offered by the United States in these
proceedings.

39. Second, even accepting the US explanation th at it applied “waiver” to the “non-responding”
respondents, and that waiver is only applied at the “company-specific” level, no one can dispute that
the application of the waiver provisions in this case led directly to an “order-wide” likelihood

determination. The “waived” companies were assumed to account for 100 per cent of the exports.
Siderca, with no exports, had no chance to influence the Department’s final determination.

40. Finally, if true, the US assertion that th e Department deemed so-called “non-responding
respondents” to have waived partic ipation in this case further demons trates the utterly passive nature
with which the Department conducts sunset reviews. This also highlights the illogical nature of the
Department’s approach to determining “adequacy” – even accepting the US description of how it
makes the adequacy determination. The Department is never in a position to know (and did not know
in sunset proceeding involving Argentine OCTG) how many exporters have not responded – i.e., it
could be none, one, ten, or more. Given the severe consequences flowing from the adequacy
determination, the Department should have attempted to understand this basic fact.

41. The US reliance on the minimal level of al leged OCTG exports during the period of
review had severe consequences for Argentina. The United States responds to a question from the
panel by noting that the amount of exports averaged less than 900 tons in each year during the five-
year period following imposition of the measure, declinin g from a level of 45,000 net tons prior to the
initiation of the original investigation. According to the United States, the domestic interested parties
provided the import statistics, and the Department verified the data by consulting the ITC Trade
Database and the Department’s Census Bureau IM-145 import data.

42. The US response highlights the flaws with the Department’s reliance on these import
statistics. Siderca participated in four “no shipme nt reviews” which revealed serious flaws with the
statistics. The US attempts to down play those flaw s, but Argentina insists th at they are important.
For this reason, we have prepared in Chart 4 a chart summarizing the findings in the “no shipment
reviews.” It is no wonder that the United States did not precisely answer question 13a from the panel.
To this day, the Department has no idea of the volum e of imports entering during the relevant period.
This is a significant problem beca use those statistics led directly to: (1) the determination that
Siderca’s complete substantive response was “inadequate”; (2) the application of waiver to Siderca or
to Argentina; (3) the finding that dumping continued over the life of the order; and (4) the ultimate
determination that dumping would be likely to contin ue or recur. Yet, despite the importance of the
import statistics, the Department never disclosed to the parties the exact export figures, and the United
States failed to respond to the Panel’s specific question on this point. For these reasons, the
Department violated Articles 11.3, 6.1, 6.8, 6.9, and Annex II.

43. The United States now contends that, “through administrative review procedures, the United
States has identified Acindar as another Argentine producer of OCTG, and one that may have shipped
OCTG to the United States during the period of re view . . . .” (US Response to Panel Questions,
para. 64) In carefully phrasing this response, the Un ited States fails to note that the administrative
review to which it refers occurred years after the sunset review. Nor does the United States contend
that the Department identified Acindar as anothe r Argentine OCTG exporter in the instant sunset
review. This is because there was no evidence in the record before the Department in either the sunset
review or the four “no shipment reviews” that Ac indar was a producer and exporter of OCTG during
the relevant period.

44. If the Department had Acindar in mind, then the Department never disclosed these “essential
facts” as required by Article 6.9. On the contrary, the only evidence that existed was Siderca’s
statement that, to its knowledge, it was the only Argentine producer and exporter of the subject
products. ( See Siderca’s Substantive Response , para. 6 (ARG-57)) The Department cited this
statement, but gave no explanation of why it, as the investigating authority, did not at least attempt to
clarify this issue. This was consistent with statem ents by the US industry to the Department in the
annual reviews, where the US industry only requested reviews of Siderca, and for the second
requested review (for the period 8.1.96 – 7.31.97) stated: “Review is requested of Siderca because it
is the only known producer of oil country tubular goods in Argentina . . . .” (ARG-58 at 2). In
addition, the petitioners also stated during the cour se of these “no shipment” reviews that Siderca was

the “sole producer of OCTG in Argentina.” (ARG-36, at 49090) Therefore, the record evidence
indicates that there was no reasonable basis for the Department to have considered that there were
other Argentine producers/exporters that failed to respond to the notice of initiation and who were
thus the true subjects of the application of the waiver provisions.

45. Consequently, the casual refere nce to Acindar as an Argentine OCTG exporter in its answers
to the Panel’s questions is another ex post facto justification by the United States to support its
determination. Argentina respectfully requests the Pa nel to consider only issues and facts reflected in
the record. Nevertheless, this reference further highlights the decisive weight the authorities assigned
to the non-investigated, “non-respondent respondents” accounting for 100 per cent of Argentine
OCTG imports that were deemed to have waived participation in the sunset review, thus leading to the
statutorily mandated determination of “likely” dumping. The United States also suggests in its
Second Submission that the Argentine Government’s failure to participate in the sunset review
contributed to “Argentina’s ‘treatment in the sunset review.’” (para.39) Argentina is surprised by this
statement, as the United States never made this po int in any of its written sunset determinations, or
indicated that this consideration supported the Depa rtment’s likelihood of dumping determination.
This is the first time that Argentina has heard the Department put forth this rationale, as it was not
raised in the underlying sunset proceeding, or at any stage of this dispute – not in the consultations, in
the US First Submission, or in the US Opening Statement.

2. The US Waiver Provisions are inconsistent as such with Articles 11.3, 6.1, and 6.2
46. Throughout these Panel proceedings, Argentin a has consistently argued that the US waiver
provisions are inconsistent as such with Article 11.3 of the Anti-Dumping Agreement, because they
preclude the Department from undertaking the rigorous “review” and making the substantive
“determination” required by this Article. The automatic judgments mandated by the US waiver
provisions are patently inconsistent with the “exacting nature of the obligations imposed on
authorities under Article 11.3 .” (Appellate Body Report, Sunset Review of Steel from Japan ,
para. 113)

47. In its Second Submission and responses to the Panel’s first set of questions, the United States
asserts that the waiver provisions are not inconsiste nt with Article 11.3 as such because they do not
mandate that the Department render an affirmative likelihood determination for the order as a whole.
(See US Second Submission, paras. 19-21; US Answers to First Set of Panel Questions, paras. 3, 19,
20, 23, 24, 28, 29, 30) Instead, the United States emphasizes, these provisions mandate a likelihood
of dumping determination only with respect to the specific company that waived – or was deemed to
have waived – participation in the sunset review. (See id.)

48. In making this argument, however, the United States never explains precisely how a
company-specific waiver determination is made in the context of its so-called order-wide analysis.
Nor does the United States explain why the statutory mandate of the waiver provisions – that the
Department “shall” determine that the waiving company would be likely to dump – does not affect the
order-wide determination. The simple reason fo r this is because the United States cannot do so;
otherwise, the words of the US statute would be meaningless.

49. The United States thus refuses to acknowledge the impact of the waiver provisions on the
Department’s final likelihood determination. Even where applied to only one of multiple respondents,
the waiver provision necessarily ta ints the final likelihood determinat ion. Article 11.3 simply does
not permit the authority to make automatic judgments regarding the likelihood of dumping, even if
limited to a particular respondent. Rather, the auth ority’s review must be “rigorous” and its ultimate
determination must be based on positive evidence. ( See Appellate Body Report, Sunset Review of
Steel from Japan , paras. 113-115) Article 11.3 does not permit the administering authority to
conclude – without any basis in fact – that any pa rticular respondent would be likely to dump upon
termination of the measure. The Appellate Body confirmed that there is no place for the use of

“presumptions” in sunset reviews in place of the obligations set out in Article 11.3. ( See id. ,
para. 191)

50. The US defence of the waiver provisions also fails to account for the numerous sunset
reviews in which the Department did not receive a substantive response from any
 respondent
interested party. (See US Department of Commerce Sunset Reviews (ARG-63 and ARG-64)) In such
instance, the waiver provisions necessarily mandat e an affirmative likelihood determination at the
order-wide level. Such an automatic judgment is patently inconsistent with the Article 11.3
obligation.

51. The United States suggests that the waiver prov isions are not inconsistent as such with the
Anti-Dumping Agreement, because, “[i]n making the order-wide final sunset determination in an
expedited sunset review, Commerce will rely on all information on the administrative record of the
sunset proceeding, including information in the su bstantive responses and rebuttal responses of the
domestic interested parties, pr ior agency determinations, as we ll as the information submitted by
respondent interested parties in their substantive and rebuttal responses.” (US Second Submission,
para. 25; see also US Answers to First Set of Panel Questions, paras. 10, 16, 17, 22, 25, 32, 39, 42,
61) As we have just shown, however, this argument does not alter the fact that the waiver provisions
require the Department to make automatic judgments without any basis in fact. In addition, the US
assertion is wrong on two levels.

52. First, the waiver provisions preclude the Department from considering company-specific
information submitted by a respondent to which waiver has been applie d. The United States
acknowledges that a respondent that submits an in complete substantive response will be “deemed” to
have waived participation. ( See US Answers to First Set of Panel Questions, para. 42) The statute
thus mandates that the Department conclude that this respondent would be likely to dump upon
termination of the anti-dumping measure, and, as a result, the Department must disregard any
company-specific information contained in that respondent’s substantive response. Any other
interpretation would render the plain language of th e statute meaningless. The consequences of the
“deemed” waiver – the denial of the opportunity to present evidence and defend one’s interest – also
demonstrate that the US waiver provisions are inconsistent with Articles 6.1 and 6.2.

53. Second, the US sunset provisions as a whole restrict the Department’s “analysis” to the three
scenarios prescribed in the SAA and the Sunset Policy Bulletin . ( See 19 USC. § 1675a(c)(2); 19
C.F.R. §§ 351.218(d)(3)(iv)(A) and (e )(2)(iii); 19 C.F.R. § 351.308(f)(2); Sunset Policy Bulletin ,
Sections II.A.3 and II.C). Therefor e, it is irrelevant that the Depa rtment’s regulations provide that
respondent interested parties may include in th eir substantive responses “any other relevant
information or argument that the party would like the [Department] to consider[,]” (19 C.F.R. §
351.218(d)(3)(iv)(B)). Also, the US regulations unreasonably restrict consideration of other
information to “full reviews.” (See 19 C.F.R. § 351.218(e)(2)(iii))

54. As the preceding discussion has shown, in a ttempting to defend the Department’s likelihood
determination in the sunset review of Argentine OCTG, the United States has made assertions that not
only contradict the Department’s published determinations, but also contradict the United States’ own
arguments. And then after the Panel pursued cert ain contradictions further, the United States was
forced to concede that it made mistakes not only in the written sunset determination, but also in its
First Submission. (See US Response to Question 9(a) from the Panel)

55. In its First Oral Statement, Argentina presented in Chart 1 a list of significant contradictions
between the Department’s sunset determination and its First Submissi on. The United St ates has tried
to cure several contradictions with new arguments, which were never stated at the time of the sunset
decision, and therefore are ex post facto rationalizations which cannot be considered by the Panel.
For the Panel’s convenience and further review, we have organized the contradictions into two charts:
Chart 5 (Exhibit ARG-70) contains the
ex post facto rationalizations, and Chart 6 (Exhibit ARG-71)

contains the unresolved contradicti ons. If the Panel decides that so me of the propositions advanced
by the United States can be considered despite the fact that they are ex post facto rationalizations, then
the Panel will confront a new problem: it will have to pick and choos e between contradictory
positions (i.e. adequate or inadequate response from Siderca, waiver, and application of facts available
to Siderca, Argentina, and/or the “non-responding respondents,” etc.).

56. That the United States has been unable to ar ticulate a consistent and coherent story over the
course of these proceedings and to link that explanation with its discussion in the Issues and Decision
Memorandum manifests its failure to reconcile the Department’s likelihood determination with
Article 11.3. No matter the argument put forth by the United States, only one conclusion can be
drawn: The Department failed to conduct the suns et review of OCTG from Argentina in a manner
that is consistent with Article 11.3. Indeed, as Argentina has demonstrated previously, even when
viewed in the light most favourable to the Unite d States, the Department’s likelihood determination
simply was not grounded on a sufficient factual ba sis to invoke the exceptio n of Article 11.3 and
continue the anti-dumping measure.

C. N
ONE OF THE US ARGUMENTS ARE CREDIBLE IN LIGHT OF THE WTO-INCONSISTENT
PRESUMPTION IN ALL SUNSET CASES
57. In Sunset Review of Steel from Japan , the Appellate Body declared that “[p]rovisions that
create ‘irrebuttable’ presumptions, or ‘predetermine’ a particular resu lt, run the risk of being found
inconsistent” with the “obligation of investigating authorities, in a sunset review, to determine , on the
basis of all relevant evidence, whether the expiry of the duty would be likely to lead to continuation or
recurrence of dumping.” (Appellate Body Report, Sunset Review of Steel from Japan ,
para. 191)(emphasis added)

58. Operating together, the statute, the SAA, and the Sunset Policy Bulletin establish a WTO-
inconsistent presumption of likely dumping in Depa rtment of Commerce sunset reviews. The statute
provides the starting point for the Department’s likelihood determination by enumerating the two
elements that the Department must consider in every sunset review: (1) historical dumping margins
and (2) past import volumes. The SAA further clarifies the likelihood of dumping standard under US
law by instructing how these two factors should be interpreted. The SAA provides that any of the
following three scenarios are “highly probative” of likely dumping: (1) continued dumping margins,
(2) the cessation of imports, and (3) declining import volumes accompanied by the continued
existence of dumping margins. ( See SAA at 889-890 (ARG-5)) Finally, Section II.A.3 of the Sunset
Policy Bulletin directs the Department to determine that continuation or recurrence of dumping would
be likely whenever at least one of the three criteria set forth in the SAA is satisfied. ( See Sunset
Policy Bulletin at 18,872 (ARG-35))

59. Ultimately, then, the US likelihood standa rd is expressed in Section II.A.3 of the Sunset
Policy Bulletin. As the Appellate Body ruled in Sunset Review of Steel from Japan , the Sunset Policy
Bulletin is a measure that may be challenged in WTO dispute settlement. (See paras. 99-100)

60. The Appellate Body also addressed the very issue raised in this dispute: whether
Section II.A.3 of the Sunset Policy Bulletin is inconsistent as such with Article 11.3. In examining
this issue, the Appellate Body determined that, if Section II.A.3 directs the Department to consider
continued dumping margins and declining import vo lumes (i.e., satisfaction of any of the three
prescribed criteria) as “determinative or conclusiv e” of the likelihood of future dumping, then the
measure would be inconsistent with Article 11.3 as such. (Appellate Body Report, Sunset Review of
Steel from Japan , DS244, para. 178) The Appellate Body thus confirmed that the likelihood
determination required by Article 11.3 must be based on “all relevant evidence,” not on “the
mechanistic application of presumptions.” (Id. at paras. 178, 191)

61. In the end, the Appellate Body did not decide whether Section II.A.3 of the Sunset Policy
Bulletin is inconsistent as such with Article 11.3, because it lacked the factual basis to do so (the
Panel had failed to make factual findings as to the “consistent application” of Section II.A.3).

62. This Panel is not similarly constrained in th e instant case. Argentina has submitted extensive
evidence of the Department’s “consistent application” of Section II.A.3 of the Sunset Policy Bulletin
in all sunset reviews in which the domestic indust ry participates. Argentina’s Exhibits ARG-63 and
ARG-64 show that the Department follows the instruct ion of Section II.A.3 in every sunset review in
which the domestic industry is intere sted, and every time it finds that at least one of the three criteria
is satisfied, the Department makes an affirmativ e finding of likely dumping without considering
additional factors. These facts are beyond disput e and the United States has not attempted to rebut
these facts. The Department’s consistent application of Section II.A.3 thus demonstrates its meaning:
Section II.A.3 of the Sunset Policy Bulletin directs the Department to attach decisive weight to
historical dumping margins and declining import volum es (or the cessation of imports altogether) in
every case. Therefore, Section II.A.3 is inconsistent wi th the Article 11.3 obligation to determine “on
the basis of all relevant evidence” whether termina tion of the anti-dumping duty would be likely to
lead to continuation or recurrence of dumping. ( See Appellate Body Report, Sunset Review of Steel
from Japan, paras. 178, 191)

63. By directing the Department to give decisi ve weight to the three prescribed criteria as
conclusive of likely dumping, Section II.A.3 esta blishes a WTO-inconsistent presumption of likely
dumping and predetermines the outcome of the Article 11.3 review. Argentina’s extensive evidence
of the Department’s consistent application of the Sunset Policy Bulletin again speaks for itself: In 100
per cent of the sunset reviews in which the dome stic industry participated, the Department followed
the mandate of Section II.A.3, and in each case, the Department rendered an affirmative likelihood
determination. ( See US Department of Commerce Sunset Reviews, ARG-63 and ARG-64) The
United States cannot dispute these facts. Therefore, because Section II.A.3 of the Sunset Policy
Bulletin directs the Department to apply a WTO-inconsistent presumption of likely dumping, the
measure is inconsistent with Article 11.3. ( See Appellate Body Report, Sunset Review of Steel from
Japan, paras. 178, 191)

64. The role that the sunset regulations play in this overall framework reinforces the mechanics of
the WTO-inconsistent presumption. Consistent with the WTO-inconsistent presumption of likelihood
established by US law, the sunset regulations limit the substantive information that the Department is
required to solicit to historical dumping margins and past import volumes. ( See 19 C.F.R. §
351.218(d)(3)(iii)) Although – as the United States repeatedly highlights – the Department’s
regulations provide that respondent interested par ties may include in their substantive responses “any
other relevant information or argument that the part y would like the [Department] to consider[,]” (19
C.F.R. § 351.218(d)(3)(iv)(B)), the provision is holl ow because the US sunset provisions as a whole
restrict the Department’s “analysis” to the three cr iteria forming the presumption of likely dumping.
(See 19 USC. § 1675a(c)(2); 19 C.F.R. §§ 351.218(d)(3)(iv)(A) and (e)(2)(iii), § 351.308(f)(2); Sunset
Policy Bulletin, Section II.C)

65. In this regard, the US reliance on 19 C.F.R. § 351.308(f)(2) for the proposition that the
Department considers all information provided in the substantive responses in expedited reviews is
unavailing. By virtue of the cross reference contai ned in this regulation to section 1675a(c) of the
statute, the true meaning of section 351.308(f) is that the Department will consider information other
than historical dumping margins and past import volumes only where “good cause” is shown. ( See
also 19 C.F.R. §§ 351.218(d)(3)(iv) an d (e)(2)(iii); Section II.C of the Sunset Policy Bulletin ) As
demonstrated by Exhibits ARG-63 and ARG-64, th e Department has never considered “good cause”
information in determining that dumping would not be likely to continue or recur .
Subsection 351.218(e)(2)(iii) further restricts such consideration to “full reviews.”

66. Instead, the Department has always treated satisfaction of any one of the three criteria
prescribed by the Sunset Policy Bulletin as decisive in render ing affirmative likelihood
determinations. Indeed, even in the context of a full review, the US sunset provisions limit the
Department’s analysis to a consideration of the three criteria prescribed by the SAA and Sunset Policy
Bulletin. ( See 19 USC. § 1675a(c)(2); 19 C.F.R. §§ 351.218(d)(3)(iv)(A) and (e)(2)(iii); Sunset
Policy Bulletin , Section II.C) As Mexico, a Third Party Participant in this case, explained in its
response to a question posed during these proceeding s, the US sunset review of OCTG from Mexico
was a “full review” and these SAA/Sunset Policy Bulletin criteria were applied and served as the basis
for the Department’s affirmative likelihood of dumping determination in that case.

67. In sum, regardless of whether the Departme nt conducts an expedited or full review, and
regardless of the nature of the information prov ided by respondents, the application of the WTO-
inconsistent presumption established by US law lead s to the same outcome in every sunset review in
which the domestic industry participates: likel y dumping. Ultimately, the WTO-inconsistent
presumption is best summarized by the United Stat es in its own words in its response to a panel
question during the first meeting of the Panel with the Parties: It is reasonable to assume that a
company that has dumped in the past is likely to dump in the future. This is not surprising as that is
what the SAA and Sunset Policy Bulletin direct the Department to do in every
 case. ( See US
Department of Commerce Sunset Reviews, ARG-63 and ARG-64) Therefore, consistent with the
Appellate Body’s guidance in Sunset Review of Steel from Japan , the Panel must find that the
Department’s sunset review of Argentine OCTG was inconsistent with Article 11.3.

IV. THE LIKELIHOOD OF INJURY
A. ARTICLE 3 OF THE ANTI-DUMPING AGREEMENT APPLIES TO SUNSET REVIEWS CONDUCTED
UNDER ARTICLE 11.3
68. The reasoning of Appellate Body’s recent decision in Sunset Review of Steel from Japan
should silence any lingering debate as to whet her Article 3 applies to sunset reviews under
Article 11.3.

69. The Appellate Body found that the definition of “dumping” applied for the purpose of the
entire Agreement, including for sunset reviews, in light of the specific wording of Article 2.1.

70. Similarly, Footnote 9 of the Anti-Dumping Agreement provides that, “[u]nder this
Agreement, the term ‘injury’ shall, unless otherwise specif ied, be taken to mean material injury to a
domestic industry, threat of material injury to a domestic industry or the material retardation of the
establishment of such an industr y and shall be interpreted in accordance with the provisions of
[Article 3].” (Emphasis added.) Accordingly, the Appellate Body’s reasoning in Sunset Review of
Steel from Japan requires the parallel finding that “injury” for purposes of Article 11.3 is subject to
the disciplines of Article 3.

71. Ignoring the clear implication of Sunset Review of Steel from Japan , the United States
continues to assert that Article 3 does not apply to Article 11.3 sunset reviews. ( See US Second
Submission, paras. 43-55) First, the United States asserts that “injury” under Articles 3 and 11.1 does
not have the same meaning as in Article 11.3. (US Second Submission, para. 43) According to the
United States, the analysis required by Articles 3 and 11.1, which speak of existing injury, is
“fundamentally different” from that required by Article 11.3, wh ich speaks of the likelihood of
continuation or recurrence of injury. (Id.)

72. The distinction between the determination of injury in an original investigation and the
determination of the likelihood of continuation or recurrence of injury in a sunset review, however,
does not alter the Anti-Dumping Agreement’s clear instruction that the core focus of each
determination – “injury” – “shall be interpreted in accordance with th e provisions of [Article 3].”

Further, the premise for the US argument – that Articles 3 and 11.1 speak of “existing injury,” rather
than the likelihood of future injury – is flawed. Artic le 3 clearly pertains also to the threat of injury,
i.e., to an analysis of future injury, not just to an analysis of existing injury.

73. Second, the United States argues that, “if Article 11.1 is read as providi ng specific content to
Members’ obligations under Article 11.3, it would make a nullity of that part of Article 11.3 that
permits the continuation of a duty when injury is likely to recur.” (US Second Submission, para. 44)

74. Argentina does not argue, however, that Article 11.1 sets out the specific obligation contained
in Article 11.3. Rather, Article 11.1 is an umbre lla provision that states “a general and overarching
principle, the modalities of which are set fort h in paragraphs 2 and 3.” (Panel Report, Pipe Fittings
from Brazil, DS219, para. 7.113) In this light, “injury” as used in Article 11.1 cannot be interpreted
differently in Article 11.3. In its second submissi on, the United States appears to agree that “injury”
in Article 11.1 is subject to the provisions of Article 3. Yet the United States has failed to
demonstrate that Article 3 does not similarly apply to Article 11.3.

75. There is no textual support for the position that the term “injury” as used in Article 11.1 is
different than the term “injury” as used in Article 11.3

B. T
HE COMMISSION APPLIED THE WRONG STANDARD – “LIKELY” MEANS “PROBABLE”
76. The Appellate Body in Sunset Review of Steel from Japan also ended the debate over the
meaning of likely. “Likely” means “probable.” (Para. 111)

77. Throughout these proceedings, the United States has consistently argued that “likely” as used
in Article 11.3 does not mean “probable.” More significantly, the Commission expressly stated
before a NAFTA panel that it did not interpret “likel y” to mean “probable” in the very same sunset
determination at issue in this dispute . ( See ITC Brief included in ARG-67). Therefore, there can be
no doubt that the Commission failed to apply the correct standard in this case. As we will discuss
next, the Commission’s evidentiary findings with respect to the likely volume, price effects, and
impact in the instant sunset review confirm this conclusion.

C. T
HE COMMISSION FAILED TO RELY ON POSITIVE EVIDENCE THAT INJURY WOULD BE LIKELY
TO CONTINUE TO OR RECUR IN THE EVENT OF TERMINATION
78. Article 3.1 and Article 11.3 require positive evid ence that injury is “likely” to continue or
recur in order for the measure to be continued. The Commission’s conclusions with respect to
volume, price, and impact in this case fall short of meeting the substantive and evidentiary standard.

79. First, with respect to volume, the Commission concluded that, “in the absence of the orders,
the likely volume of cumulated subject im ports . . . would be significant.” ( Commission's Sunset
Determination at 20 (ARG-54)) In making this conclusi on, the Commission recognized that most of
the subject producers faced capacity constraints ( Id. at 19), and thus, positive evidence that these
subject producers would not likely increase their shipments of OCTG to the United States. ( Id. at 19)
To overcome this positive evidence, the Comm ission found that these subject producers had
“incentives” to shift “their productive capacity to producing and shipping more [OCTG] to the US
market.” (Id.) As Argentina has demonstrated in previous submissions, however, each one of these
findings was based on speculation and conjecture, rather than on positive evidence of likelihood.
Therefore, the Commission failed to determine, based on positive evidence, that the volume of subject
imports would likely be significant upon termination of the orders.

80. The above discussion regarding capacity and the so-called incentives highlights that
cumulation was wholly inappropriate in the sunset review of Argentine OCTG because: (1) it
undermined Argentina’s individual right to termination of the anti-dumping measure under

Article 11.3; and (2) the basis for the Commission’s decision to cumulate was inconsistent with the
“likely” standard of Article 11.3 because the Co mmission simply presumed that since there was
competition between imports in the original investigation, it was likely that there would be such
competition in the event of termination. Finally, it should be noted that if the positive evidence of
capacity constraints were not significant, the Commission would not have devoted so much of its
determination to a discussion of the subject producer s’ “incentives” to shift productive capacity for
sale to the United States. Simply put, the Commission’s conclusion that the volume of the subject
imports would likely be significant relied on its findings of incentives.

81. In its Second Submission, the United States also attempts to bolster the Commission’s
findings of incentives, either by citing to additional record facts or by simply restating the
Commission’s finding. (See id. at paras. 66-77) Nevertheless, the United States fails to show how the
Commission’s findings were based on positive eviden ce of likelihood, as opposed to conjecture and
speculation. Further, the United States is unable to account for th e Commission’s frequent disregard
of positive evidence that undermined its incentive findings.

82. For example, the United States points out that , in a previous sunset review of OCTG from
Canada, counsel for Siderca assured the Commissi on that the predecessor organization to Tenaris
“had no intention of using the Algoma facilit y to ship OCTG to the United States.” ( Id.) Based on
this evidence, the United States concludes, “Tenaris’ commitment
 not to ship OCTG from Canada
completely undermines Argentina’s argument that Tenaris could use Algoma to serve this market.”
(Id.)(emphasis added) As evidence that Tenaris had “committed” not to ship OCTG from Canada, the
United States cites footnote 310 of the Commissi on’s determination in the review of OCTG from
Canada. (See id. (citing USITC Pub. 3316 (July 2000) at 51. n.310 (US-29)) This footnote, however,
does not indicate that Tenaris had committed not to ship OCTG to the United States from Canada.
Rather, it states, “We also note Siderca’s sworn testimony that exports to the United States are not
part of its business plan for the Algoma facility .” (USITC Pub. 3316 (July 2000) at 51. n.310 (US-
29)(emphasis added)) Algoma gave no “commitment,” but rather stated that exports to the United
States were not part of its business plan, just as Siderca explained that exports to the United States
were not an important part of its business plan in this sunset review. Why the explanation of the
Tenaris business plan was considered credible in the Canadian case, and not credible in the Argentine
case, remains a mystery. These facts also expose the speculation in which the Commission engaged
in this case: rather than consider Tenaris’ actions in Canada to be positive evidence that the Tenaris
Group was not likely to export significant quantitie s to the United States if the measures were
removed, the Commission ignored the evidence and relied on its “incentive” analysis. The
Commission never even acknowledged that a Tenari s company, Algoma, could have shipped to the
United States but did not.

83. In sum, despite the extensive record asse mbled by the Commission in the instant sunset
review, the Commission simply failed to determin e, based on positive evidence, that the volume of
subject imports would likely be significant in the absence of the orders.

84. With respect to price, the Commission’s finding with respect to the likely price effects of the
subject imports was also based on conjecture, rath er than positive evidence of likelihood. As
Argentina demonstrated in its Second Submission, in making its price findings, the Commission
placed great weight on information developed five years earlier in the original investigation. ( See
Argentina’s Second Submission, paras. 172-173)

85. The United States makes a similar admission it attempts to refute Argentina’s arguments that
the United States gave undue weight to the fact that domestic prices were increasing at the end of the
period examined. The United States claims that “evidence from the original investigation strongly
supports a finding that imports can
 drive down domestic prices even during a period of strong
demand” and that this means therefore that “imports would drive down or suppress the price of the
domestic like product if the orders were revoked.” (US First Submission, para. 339)

86. It is striking that from a find ing in the origin al investigation
 that imports “can ” drive down
domestic prices, the Commission concludes in the sunset review that imports “would” drive down or
suppress the price of domestic like products if the or der were revoked. In ot her words, because it is
possible (as demonstrated five years earlier), the Commission concludes it must be “likely” to occur if
the orders are revoked. This is not the standard se t forth by Article 11.3. Further, this type of
reasoning demonstrates that the Commission is not applying a “likely” standard, and that the decision
in this case is not based on positive evidence of likely price effects.

87. Finally, with regard to impact , the Commission stated, “in the original investigations ,
subject imports captured market share and caused price effects despite a significant increase in
apparent consumption in 1993 and 1994 as compared to 1992.” ( Commission's Sunset Determination
at 22) (ARG-54) (emphasis added) On this basi s, the Commission concluded that, “despite strong
demand conditions in the near term[,]” the subject imports would be likely to have a negative impact
on the domestic industry in absence of the orders. ( Id.) Thus, once again, the Commission based its
conclusion of what is likely to occur on what occurr ed in the original investigation, five years in the
past. In other words, the Commission determined on the basis of possibility (as demonstrated by
events five years earlier) that an outcome is “lik ely.” Again, such reasoning is unacceptable under
Article 11.3 and shows that the Commission did not apply the “likely” standard in this case.

88. In its defence against Argentina’s argument w ith respect to the impact analysis, the United
States offers the following sentence: “The ITC note d that in the original investigation, a significant
increase in demand had not precluded subject import s from gaining market share and having adverse
price effects.” (US First Submission, para. 342, emphasis added)

89. Once again, we see that the conclusion of what is likely to occur in the future depends wholly
on the fact that it occurred in the original investigation, five years in the past. In this particular
instance, the problem is compounded because the Co mmission is reduced to saying that increased
demand in the past had not precluded subject imports from gaining market share and having adverse
price effects, and drawing the inference from this observation that likely imports were likely to have
the same impact. Argentina wonders how an exporter could ever meet this standard given that, by
definition, most anti-dumping measures in place in the United States had some evidence of adverse
impact supporting the initial decision.

90. For these reasons, the Commission’s sunset determination in this case was inconsistent with
Articles 3.1 and 11.3. Additionally, the United States has failed to rebut Argentina’s claim that the
Commission’s sunset determinatio n was inconsistent with Article s 3.4 and 11.3, because it cannot
show on the record that the Commission properly ev aluated the relevant economic factors prescribed
by that provision. ( See Panel Report, Egypt – Steel Rebar , DS211, para. 7.42, 7.49) As noted by
Argentina, the Commission’s consideration of the WTO-inconsistent margin of 1.36 per cent
(calculated using the practice of zer oing) that was reported by the Department to the Commission for
purposes of the Commission’s sunset review was also inconsistent with US WTO obligations. If the
Commission relied on this WTO-inconsistent marg in in its determination, the determination was
“tainted;” if not, then the Commission failed to comply with its obligations under Articles 3.4 and
11.3. (See Argentina’s First Submission, paras. 189-193; Argentina’s Second Submission, paras. 151-
152) Finally, the Commission’s sunset determinatio n was inconsistent with Article 3.5, because the
Commission failed to distinguish the potential injurious effects of other causal factors from the
potential effects of the dumped imports.

D. THE COMMISSION’S CUMULATIVE INJURY ANALYSIS IN THE SUNSET REVIEW OF OCTG FROM
ARGENTINA VIOLATES THE ANTI-DUMPING AGREEMENT
1. Contrary to US assertions, Argentina has the individual right to termination of the anti-
dumping measure on OCTG from Argentina pursuant to Article 11.3 of the Anti-
Dumping Agreement
91. As Argentina has maintained throughout the course of these proceedings, every WTO
Member has the right to have anti-dumping duties terminated after five years. The United States,
however, expressly denies the existence of such a right. The United States takes the position in
response to Argentina’s third question that: “The United States does not consider that Argentina has
the right to termination under Article 11.3 prem ised on the examination only of whether the
revocation of the anti-dumping duty order relating to subject imports from Argentina will lead to a
continuation or recurrence of injury.”

92. Argentina could not disagree more on this point. Argentina’s position that it has a right to
termination is based directly on the text of Article 11.3. Nowhere in Article 11.3 is Argentina’s right
to termination conditioned on the export practices of private companies of other WTO Members. The
United States has no textual argument to support its view, but rather relies on its unilateral assertion
contradicting the common intention of the WT O Members, as reflected in the text. ( See EC-LAN
Equipment at para. 84) Indeed, no WTO Member can unilaterally deny a right conferred to another
Member by the WTO Agreements. Permitting Memb ers to disregard conferred WTO rights would
undermine the careful balance of rights and oblig ations achieved in multilateral negotiations.
Argentina respectfully asks the Panel to keep the United States’ extraordinary statement in mind when
considering whether cumulation is permitted in sunset reviews. In this case, without cumulating the
effect of imports, the Commission could not have found that Argentine OCTG imports would likely
injure the US market.

2. Articles 11.3 and 3.3 preclude cumulation in the sunset reviews
93. Argentina submits that the Comm ission’s cumulative injury analysis in the sunset review of
OCTG was inconsistent with Articles 11.3 and 3.3 of the Anti-Dumping Agreement.

94. First, with respect to the text of Article 11.3 , the United States argues that references to “any
definitive anti-dumping duty” and “the duty” are not evidence that the drafters intended to prohibit
cumulation in sunset reviews. ( See US Second Submission, para. 56) The US argument, however, is
inconsistent with the position it took in Sunset Review of Steel from Japan. In that dispute, the United
States argued that “duty” as used in Article 11 .3 is defined by Article 9.2 of the Anti-Dumping
Agreement, “which ‘makes clear that the definitive duty is imposed on a produc t-specific (i.e., order-
wide) basis, not a company-specific basis.” (Appellate Body Report, Sunset Review of Steel from
Japan, para. 150) In other words, the United States re lied on the significance of the word “duty” and
that it applies to one order (rather than to one company) to prove its point. The Appellate Body
agreed with the United States that Article 9.2 info rms the interpretation of “duty” in Article 11.3.
(Id.) The Appellate Body therefore confirmed that the use of “duty” in the singular means that the
authority must determine whether the termination of a single anti-dumping order – and not multiple
orders – would be likely to lead to injury.

95. The United States also contends that it is in correct for Argentina to refer to the “object and
purpose” of Article 11.3. (US Second Submissi on, para. 57) According to the United States,
“Article 11.3 is clear that expiry of such duties is only appropriate where it is not likely
 that this
would lead to the continuation or recurrence of dumping and injury.” ( Id.) The Appellate Body,
however, has confirmed Argentina’s interpretation of the principal obligation of Article 11.3:
termination of the anti-dumping duty after five year s is the rule, and maintenance is the exception.
(Appellate Body Report, Sunset Review of Steel from Japan, DS244, para. 104) The US interpretation

turns the Article 11.3 obligation on its head, making continuation of anti-dumping measures the rule
and termination the exception. In addition, the US endorsement of a “not likely” standard
 is
inconsistent with Article 11.3. In DRAMs from Korea, the Panel clearly stated “that a failure to find
that an event is ‘not likely’ is not equivalent to a finding that the event is ‘likely.’” (DS99, para. 6.45)

96. Second, the United States argues that Argentina’ s alternative argument – that if cumulation is
permitted in sunset reviews, the limitations on cumulation in Article 3.3 would have prevented
cumulation in this case – is directly at odds with the Appellate Body’s findings in Steel from
Germany. (See US Second Submission, para. 59, citing Appellate Body Report, Steel from Germany,
paras. 58-97) In Steel from Germany , the Appellate Body merely held that the de minimis rule of
Article 11.9 of the SCM Agreement – the paralle l provision to Article 5.8 of the Anti-Dumping
Agreement – does not independently apply to Article 21.3 – which is parallel to Article 11.3 of the
Anti-Dumping Agreement. The Appellate Body did not address whether the de minimis rule of
Article 11.9 applies to Article 21.3 in the context of applying a cumulative injury analysis by virtue of
the cross-reference contained in Article 15.3, the parallel provision to Article 3.3 of the Anti-Dumping
Agreement. (Appellate Body Report, Steel from Germany , para. 92) To the contrary, the Appellate
Body’s decision in Steel from Germany suggests that it understands that the injury analysis in a sunset
review is not conducted on a cumulated basis. (Id. at para. 81)

97. Finally, the United States addressed Arge ntina’s argument that the standards that the
Commission applies in deciding whether to cumulate run directly counter to the “likely” standard
established by Article 11.3. ( See US Second Submission, para. 60) According to the United States,
Argentina confuses the standard for deciding whether cumulation in a sunset review is appropriate
with the standard for determining whether expiry of the duty would be likely to lead to continuation or
recurrence of injury. ( See id.) Because the “Anti-Dumping Agreement is silent on the former
question,” the United States argues, “the standard s that the ITC applied in deciding whether to
cumulate cannot violate Article 11.3.” (Id.)

98. Argentina has not confused the two questions. Rather, Argentina submits that the threshold
inquiry for cumulating – i.e., whether imports from each subject source had any possible discernible
adverse impact – taints the likelihood determination in a sunset review. ( See Argentina’s First
Submission, paras. 292-294; Argentina’s Second Submission, paras. 199-200) For example, in the
sunset review of Argentine OCTG, it cannot credibly be argued that the Commission could have
determined that injury would likely continue or re cur without having conducted a cumulated analysis.
Consequently, the conduct of a cumulated injury analysis is not consistent with Article 11.3.

E. T
HE COMMISSION’S OVERALL APPROACH IN THE SUNSET REVIEW OF ARGENTINE OCTG IS
FLAWED
99. As explained above, the Commission’s likelihood of injury determination is flawed because it
rests on several possible outcomes. The flaws with the Commission’s likelihood of injury
determination are further compounded because of the Commission’s use of a cumulative analysis.

100. First, in reaching its decision to cumulate in this case, the Commission initially considered
whether imports from each subject source would have any possible discernible adverse impact on the
domestic industry. The Commission cumulated the imports because it did not find that the imports
would have no discernible adverse impact on the domestic industry. ( See 19 USC. § 1675a(a)(7))
The language applied by the Commission (written with two negative clauses) meant that the
Commission could cumulate imports that, considered individually, have any possible adverse impact
on the domestic industry. ( See 19 USC. § 1675a(a)(7)) This standard is directly counter to the
“likely” standard established by Article 11.3. ( See Appellate Body Report, Sunset Review of Steel
from Japan, para. 110; Panel Report, DRAMS from Korea at paras. 6.48, 6.52-6.58) With respect to
the second part of the Commission’s analysis as to whether to cumulate, the Commission considered
whether the “imports would be likely to compete with each other.” ( See 19 USC. § 1675a(a)(7))

Again, just as the Commission failed to apply the “likely” or “probable” standard throughout its
analysis (see, e.g., Argentina’s Second Submission, para. 159), it failed to apply that standard to the
threshold question of whether to cumulate for purposes of the conduct of the Article 11.3 review.

101. Second, as Argentina demonstrated in it s written submissions, the Commission’s finding of
likelihood of injury hinges on su pposed future occurrences – whic h while possible, do not constitute
positive evidence of likelihood. Indeed, for many of its findings, the Commission simply presumed
such events would occur simply because they were noted in the original investigation ( See, e.g.,
Argentina’s Second Submission, paras. 172-177). Thus, the flaws with the individual pieces of
information relied on by the Commission are evident. Basic logic dictates that one cannot simply take
the sum of purported possible scenarios to reach a “likely” outcome. In fact, when more future
“variables” are relied upon to support the likelihood of a particular occurrence happening (in this case
injury), this actually leads one to the conc lusion that such an occurrence is less likely
 to happen. Yet,
this same reasoning underpins the Commission’s analysis.

V. THE UNITED STATES HAS FAILED TO DISCHARGE ITS BURDEN UNDER
ARTICLE 6.2 OF THE DSU: THE US PRELIMINARY OBJECTIONS MUST FAIL
102. Finally, Argentina will now take a moment to offer some brief observations with respect to
the terms of reference. Such observations may not be necessary, as the United States seems to have
all but abandoned its DSU Article 6.2 claim. Inde ed, the US Second Submission makes no reference
whatsoever to DSU Article 6.2.

103. Argentina reiterates that from the text of the panel request, it is clear that the so-called “Page
Four” claims and the “B1/B2 and B3” claims all complied fully with DSU Article 6.2 Moreover, the
five “certain matters” were all set forth in Argent ina’s panel request and also complied fully with
DSU Article 6.2. The United States has not rebutted any
 of Argentina’s textual arguments on these
points. The United States has thus demonstrably failed to discharge its burden to prove that
Argentina’s Panel request did not comply with Article 6.2.

104. Moreover, the Appellate Body has made clear that prejudice must be demonstrated for an
Article 6.2 claim to succeed. The Appellate Body has also made clear ( Wool Shirts) that “the burden
of proof rests upon the party. . . who asserts the affi rmative of a particular claim.” The United States
has asserted prejudice, but has failed to discharge its burden to demonstrate it.

105. The Panel asked the United States to expl ain how it was “prejudiced with respect to each

alleged inconsistency that the United States is ra ising in its request for preliminary rulings.” The
United States failed to reply to the Panel’s dire ct question about “each alleged inconsistency,”
presumably because it could not muster any credible arguments to this effect. The United States
contented itself instead with a general complaint that “the United States has not been afforded the full
measure of due process required under the DSU, co mpromising its ability to research the issues at
hand, assign personnel, etc.”

106. As Argentina has stressed before, vague assertions about having to wait for the complainant’s
First Submission have been rejected by previous panels as insufficient to rise to the level of violation
of due process rights. The Panel should follow this sound precedent in the present case.

107. In summary, the United States has failed to re but Argentina’s textual arguments that all of the
disputed claims are properly set forth in Argentina’s panel request consistent with the requirements of
Article 6.2. In addition, the United States ha s simply asserted, but has not demonstrated, any
prejudice. Its Article 6.2 claims must therefore fail. Although Argentina has an exceptionally strong
case on prejudice (or lack thereof), its Article 6.2 defence by no means is limited to the “no prejudice”
point alone. Argentina affirms its earlier detailed stat ements that – on a purely textual analysis – the

US Article 6.2 claims are groundless. Argentina th erefore respectfully reque sts the Panel to dismiss
the US Article 6.2 requests in their entirety.

VI. BASED ON THE PERVASIVE AND FUNDAMENTAL US VIOLATIONS, THE
PANEL SHOULD SUGGEST THAT THE MEASURE BE TERMINATED
108. In concluding today, Argentina refers the Panel to the specific requests it made of the Panel in
paragraphs 314-323 of Argentina’s First Submission, and paragraphs 269-276 of Argentina’s Second
Submission. Argentina incorporates those requests in full. In sum, Argentina respectfully requests
the Panel:

• to find that in this case the US measures identified by Argentina, as such and as applied,
violate US WTO obligations;

• to recommend that the United States brings its measures found to be inconsistent with the
covered agreements into conformity with its WTO obligations; and

• to suggest, pursuant to DSU Article 19.1, that the only way for the United States to comply
with these recommendations is th rough the immediate termination of the anti-dumping measure on
OCTG from Argentina.

109. Argentina would like to take this opportunity to revisit the implications of DSU Article 3.2.
(See Argentina’s First Submission, para. 8; Argentina’s Second Submission, para. 276) In its closing
statement at the First Substantive Meeting, the United States warned of the dangers of creating
additional obligations through disp ute settlement. Such an approach, the United States admonished,
would violate the rule in DSU Article 3.2 that panel rulings cannot add to the Members’ obligations.

110. Argentina agrees that Panels should not – indeed cannot – add to the obligations of Members
under the WTO Agreements. Yet, Argentina is by no means seeking to “add to” the obligations of the
United States under the Anti-Dumping Agreement. To the contrary, Argentina is simply asking that
the United States abide by the binding commitments that it accepted at the end of the Uruguay Round
– nothing more, nothing less.

111. Moreover, the United States focuses on only half of the story. The very same sentence also
states the proposition that “rulings of the DSB cannot . . . diminish the rights . . . provided in the
covered agreements.” Such “rights provided in th e covered agreements” include Argentina’s rights
under the Anti-Dumping Agreement, including Argentina’s rights under Article 11.3. The Appellate
Body has contributed importantly to clarifying the meaning of the rights and obligations comprised in
Article 11.3. Argentina had a right to terminatio n of the anti-dumping order on OCTG after five
years. The United States could continue the measure only by making findings consistent with
Articles 11.3, 2, 3, 6, and 12 of the Anti-Dumping Agreement. As Argentina has amply
demonstrated, the United States failed to comply with these critical obligations. As a result, the DSB
must restore the right conferred to Argentina under Article 11.3, which is termination of the measure.

112. Argentina respectfully urges the Panel to make the necessary suggestion that the measure be
terminated in this case. Not to do so would invite the United States to extend the measure beyond the
expressly prescribed period in Article 11.3. ( See Appellate Body Report, Sunset Review of Steel from
Japan, para. 113) The suggestion in this case is neces sary to give meaning to the rights of Argentina
in this case.

113. Argentina thanks you for your time and atten tion today, and would be pleased to respond to
any questions the Panel may have.

Closing Statement – 3 February 2004

1. Mr. Chairman, members of the Panel: Argentina will not repeat all of its arguments here. At
this point, we will limit ourselves to three broad points.

2. First, it is critically important that all WT O Members, including the United States, respect the
careful balance of rights and obligations embodied in the Anti-Dumping Agreement.

3. Participants in the Uruguay Round reached ag reement on a package of disciplines applicable
to anti-dumping measures. The Agreement recognizes the rights of importing countries to use anti-
dumping measures to counteract injurious dumping. However, the right to invoke such measures is
predicated upon the strict compliance with the substantive obligations of the Agreement.

4. Among the most important obligations in th e Agreement are those applicable to sunset
reviews. Article 11.1 makes clear that anti-dumping measures are limited in duration (“only as long
as necessary”), magnitude (“only to the extent necessary”), and purpose (“to counteract dumping
which is causing injury”). Article 11.3 gives sp ecific content to these overarching principles by
requiring termination of anti-dumping orders after five years.

5. These obligations were a critical element of the overall, carefully calibrated equilibrium of
rights and obligations accepted by Argentina, the United States, and other Members at the end of the
Round. It is essential that this Panel give the full, substantive content to these rights.

6. In accepting the Uruguay Round package, participants thus agreed to meaningful disciplines
on the use of anti-dumping measures. We did not agree to the mechanical application of
presumptions. We did not agree to immutable practices that stack the deck against importers. We did
not agree to rules that lead inflexibly to a pre-or dained result as soon as the US industry shows the
slightest interest in maintaining the order. We did not agree to 223 to 0.

7. Argentina notes that the Panel asked the United States questions today regarding the
automatic application of the waiver provisions and the resulting automatic judgment. The United
States tries to give the impression that these provisions do not result in automatic judgments.
Argentina respectfully reminds the panel that Argentin a has challenged the waiver provisions as such.
The statute requires that the Department “shall” ma ke an affirmative determination of likelihood of
dumping with respect to the company that is waived.

8. We therefore ask this Panel to ensure that the United States respects and implements fully the
obligations that it accepted when it accepted the Anti-Dumping Agreement – nothing more, nothing
less.

9. Second, in a related point, we would ask this Panel to be guided by the authoritative and
unambiguous guidance it has received from the Appellate Body, most notably in the Sunset Review of
Steel from Japan case. As Argentina has emphasized, the rulings of the Appellate Body provide a
definitive disposition of many of the issues facing th e Panel, including the obli gation on investigating
authorities to play an active role in the investigation.

10. At the beginning of this proceeding, the Unite d States argued that Article 11.3 was essentially
an empty shell. According to the United States, Artic le 11.3 provided few, if any, restraints on US
authorities as they raced to placate the wishes of their domestic industry.

11. The Appellate Body decision has completely undermined the US position, and has confirmed
what Argentina has maintained from the beginning – that the US measure against OCTG from

Argentina was without legal basis under the Anti- Dumping Agreement. As the Appellate Body
emphasized, Article 11.3 is no empty shell – it is replete with significant and highly substantive
obligations. The Appellate Body could not have been any clearer on the key point that
“presumptions” and “passivity” have no role in suns et reviews. As the Appellate Body explained,
“[p]rovisions that create ‘irrebuttable’ presumptions, or ‘predetermine’ a particular result, run the risk
of being found inconsistent with this type of obligation.”

12. We would also emphasize that although the Appellate Body lacked the certain factual data
upon which it could draw the necessary conclusions, the present Panel is not similarly constrained.
Argentina has placed before this Panel all
 the factual basis it requires.

13. Argentina is thus confident that this Panel w ill render a decision that is consistent with the
explicit direction of the Appellate Body. The Ap pellate Body has told Members that the sunset
review is an “exacting” process that requir es a “forward-looking analysis” and a “rigorous
examination.” We also know that “likely dumping” means “probable” dumping, and that “likely
injury” means “probable injury.”

14. In Argentina’s view, it is necessary for this Pa nel to apply these clear standards to the facts of
this case. This will be a straightforward exercise . Argentina is also confident that once the Panel
applies the Appellate Body’s gu idance, there can be no other outcome than a finding of WTO-
inconsistency.

15. Third, we would ask the Panel, during its de liberations, to give special attention to the
particularly egregious facts of this case. For ex ample, the Department’s determination that dumping
was likely relied on nothing more than a 1.36 marg in from the original investigation, calculated
through the use of zeroing, and a decline in im port volume. As Argentina has emphasized, the
Appellate Body in the Sunset Review of Steel from Japan case found that neither factor, either
independently or together, could support a determin ation under Article 11.3 th at dumping is likely to
continue. If this is the basis on which the Department could uphold a determination that dumping was
“probable”, then the disciplines of Article 11.3 would be rendered essentially meaningless.

16. Thus, the Panel’s task in the present case is significantly simplified by the untenable factual
basis upon which the United States seeks to justify its actions.

17. With respect to the preliminary issues raised by the United States, Argentina would make
three comments. First, as Argentina has stressed repeatedly, and as the Appellate Body has made
clear, a Panel request must be read as a whole . The Panel must reject the US attempt to narrowly
interpret different portions of the document in isolat ion. Second, the United States said this morning
that “nothing in the WTO agreements explicitly states that a lack of prejudice cures a violation of
DSU Article 6.2.” However, this is not, and ne ver has been, Argentina’s position. Rather, the
Appellate Body has stated repeatedly that a violation of Article 6.2 never arises at all unless prejudice
has been established. Moreover, prejudice must rise to the level of a violation of due process rights.
However, even at this very late stage in the procee dings, the United States merely asserts, but has not
established, actual prejudice. Third, Argentina wo uld respectfully remind the Panel that the United
States has never rebutted the textual arguments advanced by Argentina demonstrating that all
 of
Argentina’s claims are in fact set forth in Argentina’s panel request and are therefore properly before
the panel.

18. Finally, with respect to Argentina’s re quest for a suggestion by the Panel under DSU
Article 19.1, Argentina does not agree that GATT and WTO practice has been exclusively for Panels
simply to recommend that the measure be brought into conformity, without making any suggestions
on how to do so. There are many examples where Pa nels have made such suggestions. Moreover,
given the facts of this dispute, such a suggestion would be particularly appropriate.

19. The Panel has all of the legal and factua l elements it needs to draw the inescapable
conclusions about the WTO-inconsistency of the US measures. Your decision will be of vital
importance not just for Argentina, but for the integrity of the multilateral trading system.

20. We thank you again for the time and attention that you have given to this dispute.

ANNEX D-8

OPENING AND CLOSING ORAL STATEMENTS OF THE
UNITED STATES – SECOND MEETING

Opening Statement – 3 February 2004

Mr. Chairman, members of the Panel:

1. The United States appreciates this opportun ity to comment on the issues raised in this
proceeding.

2. This dispute is not complicated. It involves three overarching questions, some of which the
Appellate Body has already explored at length. First, what does the Anti-Dumping Agreement
require with regard to sunset reviews? Second, ha s Argentina demonstrated that US law fails to meet
those requirements? Third, has Argentina demonstrated that the US application of its law also fails to
meet those requirements?

3. Consistent with principles of treaty in terpretation reflected in Article 31 of the Vienna
Convention, an analysis of rights and obligations must begin with the text of the agreement being
interpreted. Article 11.3 of the Anti-Dumping Agreement provides that an anti-dumping duty must be
terminated unless a Member makes a finding of like lihood of continuation or recurrence of dumping
and injury. Article 11.4 makes clear that the rule s of Article 6 regarding ev idence and procedure are
applicable in these sunset reviews. Therefore, a Member must make a determination of likelihood
with regard to dumping and injury and must afford interested parties the opportunity to participate and
present evidence. In addition, Ar ticle 17.6(i) of the Anti-Dumping Agreement provides that a panel’s
examination of the facts is limited to whether those facts were properly established before and
examined by the domestic investigating authority in a manner that is unbiased and objective, not
whether the facts established at the time – or ne w ones impermissibly introduced here – might have
led to a different conclusion.

4. We will first address issues concerning the Department of Commerce’s determination
regarding the likelihood of dumping, followed by the US International Trade Commission’s
determination regarding the likelihoo d of injury. In doing so, the United States will again confirm
that US law – as such and as applied – is not inco nsistent with the obligations contained in the Anti-
Dumping Agreement. We will then conclude with some remarks on the procedural issues in this
dispute.

Issues Concerning the Likelihood of Continuation or Recurrence of Dumping

5. Mr. Chairman, Argentina’s claims in this dispute fail because they rely on obligations not
found in Article 11.3 or anywhere else in the Anti-Dumping Agreement.

6. Consistent with DSU Article 3.2 and previous panel and Appellate Body findings, the United
States has argued that the Panel should interpret the text of the Anti-Dumping Agreement, and in
particular Articles 11.3 and 6, in accordance with the ordinary meaning of the terms of the Agreement
in their context and in light of the Agreement’s object and purpose.

7. Simply put, Article 11.3 provides that a de finitive anti-dumping duty must be terminated
unless the requisite finding – likelihood of continuation or recurrence of dumping and injury – is
made. As the Appellate Body in United States - Corrosion-Resistant Carbon Steel Flat Products

from Japan recently upheld, the Anti-Dumping Agreement does not prescribe the means a Member
must employ in determining whether dumping and injury are likely to continue or recur in a sunset
review.1

8. There is also no requirement in Article 11.3 or elsewhere in the Anti-Dumping Agreement to
calculate or consider the magnitude of current du mping in making the likelihood of continuation or
recurrence of dumping determination. Nor is there a requir ement to calculate or consider past,
present, or future dumping margins in making the likelihood of continuation or recurrence of injury
determination. Furthermore, there is no requir ement in Article 11.3 or elsewhere in the Anti-
Dumping Agreement to make likelihood of dumping determinations on a company-specific basis.
The Appellate Body in Japan Sunset has confirmed these points as well, recognizing that (1)
"Article 11.3 neither explicitly requires authorities in a sunset review to calculate fresh dumping
margins, nor explicitly prohibits them from rely ing on dumping margins calculated in the past" 2 and
(2) that "dumping margins may well be relevant to, but they will not necessarily be conclusive of,
whether the expiry of the duty would be likely to lead to continuation or recurrence of dumping".3

9. Argentina claims that Commerce’s expedite d sunset procedures preclude Commerce from
making a "determination" or conducting a "review." We have demonstrated, however, that US sunset
procedures provide for participat ion by interested parties, incl uding the submission of factual
information and argument, as well as rebuttal to such information and argument. We have also
demonstrated that Commerce makes its likelihood determination based on a ll the evidence on the
administrative record, including the evidence submitted by the interested parties during the sunset
review. Commerce thus arrives at, in the words of the Appellate Body, a "reasoned conclusion on the
basis of information gathered as part of a process of reconsideration and examination."
4 Commerce’s
procedures therefore are not inconsistent with the limited obligations of Article 11.3.

10. Argentina’s statistics, which purportedly dem onstrate an alleged lack of impartiality on the
part of the United States, are irrelevant in light of these procedures. Argentina argues that Commerce
relies solely on the participation of the domestic i ndustry to determine whether dumping is likely to
continue or recur, but here again Argentina miss es the point: Where the domestic industry has,
selectively, chosen to participate, it has placed ev idence on the record that respondents have failed to
rebut persuasively. The fact that the United States does not make affirmative determinations where
the domestic industry fails to participat e demonstrates that the United States does not simply continue
every order without regard to the factual circumstan ces of each case. Thus, Argentina has failed to
prove its claim regarding GATT Article X:3(a) and Article 11.3 of the Anti-Dumping Agreement.

11. In addition to these general legal issues, Argentina has made case-specific claims regarding
Commerce’s sunset determination involving oil c ountry tubular goods from Argentina. Commerce’s
determination, however – that the expiry of the anti -dumping duty order would be likely to lead to the
continuation or recurrence of dumping – is based on evidence regarding the existence of dumping and
the depressed import volumes over the life of the order.

12. After providing all interested parties with ample opportunity to submit for the record their
views, including any information they deemed rele vant, Commerce reasonably concluded that, in the
event of revocation, dumping is likely to continue or recur. Notably, respondent interested parties
failed to provide evidence, either through the substantive responses to the notice of initiation or in
rebuttal to the substantive response of the domestic industry, to persuade Commerce to find otherwise.
This, in spite of the fact that, according to the Appellate Body, the Anti-Dumping Agreement assigns
a "prominent role to interested parties . . . and contemplates that they will be a primary source of

1 WT/DS244/AB/R, AB-20003-5, 15 December 2003, para. 123.
2 Id., para. 123.
3 Id., para. 124.
4 Id., para. 111.

information in all proceedings conducted under that agreement," especially with regard to company-
specific data.
5

13. Indeed, the only respondent interested party to file a substantive response, Siderca, filed no
rebuttal at all in response to the evidence placed on the record by the domestic industry. Argentina
claims that Siderca was simply discouraged from filing responses because of the arguable perception
that participation is "futile";6 if so, why did Siderca file a substantive response at all? Why participate
half-way? Contrary to Argentina’s complaints, Commerce did conduct a review and made a
determination based on record eviden ce; if Argentina wishes to assign blame for the contents of the
record, it need only look as far as its own producers.

14. Argentina also claims that the expedited sunset procedures denied respondent interested
parties an opportunity to defend their interests and to submit evidence, in violation of the obligations
in Articles 6.1 and 6.2. As we have demonstr ated at length in our written submissions, Commerce
provides parties with ample opportunity to submit f acts and arguments. Argentina has failed to show
one instance where Siderca was denied an opportunity to defend its interests in this case. Instead, the
record shows that Siderca, Argentina, and any othe r respondent interested party simply did not take
advantage of the opportunities afforded them.

15. Finally, Argentina attempts to make much of the dumping margin calculated for Siderca in
the original investigation. Argentina’s only claim in this regard is that Commerce reported a dumping
margin likely to prevail to the ITC that Argentin a believes was based on a calculation methodology
not in accordance with the Anti-Dumping Agreemen t. First, neither the ITC nor Commerce relied on
the reported dumping margins in making their re spective determinations. In addition, the only
calculation methodology found not to be in acco rdance with the Anti-Dumping Agreement is the
methodology in EC – Bed Linens . The methodology used by Commerce is not the same as the
methodology in EC – Bed Linens.

Issues Concerning the Likelihood of Continuation or Recurrence of Injury

16. Argentina’s grievances with the ITC’s lik elihood determination ge nerally fall into two
categories: Issues concerning the applicability of certain articles of the Anti-Dumping Agreement
with respect to sunset reviews and issues concerning the ITC’s analysis in this review.

17. The United States would first like to address two of the larger interpretative issues with regard
to the Anti-Dumping Agreement and sunset reviews: The relevance of Article 3 and the availability
of cumulation.

18. We explained in our submissions that original injury investigations and sunset reviews are
fundamentally different inquiries with different purposes. We also pointed to very specific and
fundamental obligations in Articles 3.1, 3.4 and 3.5 that just do not make sense in the context of
sunset reviews.

19. Argentina’s response on these points is telling. Essentially, Argentina sidesteps the issues.
For example, we explained that the instruction in Article 3.1 to examine the volume of dumped
imports and their effect on prices will often not be appropriate in a sunset review because imports may
not be present in significant volumes, and they may not be sold at dumped prices.
7 In response,
Argentina does not explain how the volume and price effects analysis mandated by Article 3.1 will be
relevant in a sunset review. Instead, Argentina es sentially says that Article 3.1 applies to sunset

5 Id., para. 199.
7 First Submission of the United States, para. 305.

reviews because all of Article 3 applies to these reviews. 8 Argentina is answering the question by
merely asserting the answer, without argumentation.

20. Another example of specific obligations in Artic le 3 that make no sense in sunset reviews can
be found in Article 3.5. We explained that the obligation to demonstrate that "dumped imports are . . .
causing injury" often cannot be complied with in the context of a sunset review (again, because
imports may not be present in significant volumes, may not be sold at dumped prices, and may not be
causing present injury).9 Argentina responds by characterizing this as some sort of an attempt by the
United States "to demonstrate that each and every word of Article 3.5 cannot practicably apply to
sunset reviews."10 But, we are not talking about a few stray words here; we are talking about the core
of the obligation in Article 3.5 – to demonstrate "that the dumped imports are . . . causing injury."

21. Argentina’s discussion of the requirements of Article 3.5 is a good example of how Argentina
is attempting to improperly expand the obligations on Members in sunset reviews. Article 3.5
instructs investigating authorities to examine "any known factors other than the dumped imports
which at the same time are injuring the domestic industry." (The word "known" was added to this
provision in the Uruguay Round and can only be construed as having narrowed the obligation under
the Tokyo Round Anti-Dumping Agreement, which wa s not confined to an examination of "known"
factors.) Yet, Argentina asserts that Article 3.5 required that the ITC "distinguish the potential
injurious effects of other causal factors from the effects of the dumped imports," despite Article 3.5's
limitation of the obligation to "known factors" causing injury.
11

22. Argentina argues that the logic behind the Appellate Body’s finding in Japan Sunset
regarding the applicability of Article 2 to sunset reviews "requires the parallel finding that "injury" for
purposes of Article 11.3 is subject to the disciplines of Article 3."
12 In fact, the Appellate Body’s
report stands for just the opposite conclusion.

23. In Japan Sunset, the Appellate Body reiterated its earlie r finding that "original investigations
and sunset reviews are distinct processes with different purposes." 13 The Appellate Body then found
that investigating authorities are under no obligation to calculate or rely on dumping margins when
they make their likelihood of dumping determination in a sunset review. 14 (The Appellate Body
explained that "it is consistent with the different nature and purpose of original investigations, on the
one hand, and sunset reviews, on the other ha nd, to interpret the An ti-Dumping Agreement as
requiring investigating authorities to calculate dumping margins in an original investigation, but not in
a sunset review.") 15 The Appellate Body then concluded that if – and only if – investigating
authorities choose to rely on dumping margins in making their likelihood determination, they are
required to observe the disciplines of Article 2.4. In this case, neither Commerce nor the ITC relied
on any particular dumping margins in making their likelihood determinations.

24. So what does Japan Sunset teach us? The parallel finding with respect to the likelihood of
continuation or recurrence of in jury determination is that investigating authorities are under no
obligation in a sunset review to make a new "injury" determination, as defined in Article 3, but that if
they do, they should observe the disciplines of Artic le 3. In this case, the ITC did not make a new
"injury" determination as part of its sunset review; it assessed whether injury was likely to continue or
recur, and the obligations of Article 3 do not apply.

9 First Submission of the United States, para. 351.
13 Japan Sunset, para. 106 (quoting from US-Carbon Steel, AB Report, para. 87).
14 Japan Sunset, para. 123 and 126.
15 Japan Sunset, para. 124.

25. Argentina also argues that the Anti-Dumping Agreement prohibits use of cumulation in
sunset reviews. It should be noted first that neither Article 11.3 nor any other provision in the Anti-
Dumping Agreement prohibits cumulation. Arge ntina’s argument that Article 11.3 expressly
prohibits cumulation because it speaks of "duty" in the singular is unconvincing. One of the two
supposed uses of the singular – the reference to "any definitive anti-dumping duty" – could just as
well state the plural. And the reference to "the du ty" is merely descriptive. If the drafters of
Article 11.3 had intended to prohibit cumulation in sunset reviews, they surely would have found a
more explicit way of doing so.

26. Argentina also relies on the Appellate Body’s finding in Japan Sunset that Articles 11.3 and
9.2 do not require authorities to make their lik elihood determinations on a company-specific basis.
16
We fail to see how this has any relevance to the question of whether cumulation is permitted. If
anything, Article 9.2 suggests that "an anti-dumping duty" is not limited to a single country because
that article envisions that "an anti-dumping" duty might be applied to "all the supplying countries
involved."

27. With regard to the ITC’s analysis in the su nset review of OCTG from Argentina, two of
Argentina’s arguments merit special attention here: The ITC’s pricing analysis and the application of
the "likely" standard.

28. At the outset of this discussion, it bears re peating: Article 17.6(i) makes clear that the
availability of an alternative interpretation of ev idence on the record is not sufficient to find a
determination inconsistent with the Anti-Dumping Ag reement. Argentina must prove that the ITC’s
examination of facts was not unbiased and objective. Argentina’s arguments, which are based on a
misapprehension of the ITC’s analysis, do not indica te that the ITC’s examination was biased and
unobjective.

29. With regard to pricing, Argentina focuses on the evidence of underselling, and asserts that
authorities should not be permitted to rely on pricing information from the original investigation to the
exclusion of more current data.
17 However, the ITC did not rely exclusively on the evidence of
underselling from the original investigation. There was evidence of more recent underselling, but the
scope of this underselling was limited because subject imports had a limited presence in the US
market in the period of review. 18 Moreover, current pricing data may be limited in a sunset review if
imports have declined as a result of the imposition of the order. Argentina’s suggestion that a finding
of likely underselling must be based exclusively on current pricing data should be rejected.

30. With regard to the ITC’s overall determinati on, Argentina repeatedly claims that the ITC
construed "likely" to mean "possible" in the underlying review. This is untrue, and there is no
evidence to support it. Argentina also makes mu ch of the question of whether "likely" means
"probable." But Article 11.3 does not use the word "probable." As we have already stated, moreover,
a debate about synonyms for "likely" does not advance this inquiry. The word "probable" itself has a
variety of meanings and does not connote a specific degree of probability. For example, some would
interpret the word to mean "more likely than not."

31. Rather than debating synonyms, the United States believes it is more useful to examine the
details of the ITC’s analysis, as explained fully in our submissions.
19 It is also worth noting that the

17 Second Submission of Argentina, paras. 172-173.
18 ITC Report, p. 21.
19 First Submission of the United States, paras. 313-43; Second Submission of the United States,
paras. 61-78.

ITC, using the "likely" standard, has made negative likelihood of injury determinations, leading to the
revocation of anti-dumping measures, in over one-third of the first set of sunset reviews it conducted.

32. Argentina attempts to portray the ITC’s determination as speculative and not based on record
evidence. It generally does this by focusing on selected individual factors that the ITC considered and
claiming that the ITC’s conclusion was not based on em pirical certainty. We urge the Panel to reject
this piecemeal analysis and to look at all of the evidence that the ITC considered and the entirety of its
determination.

33. Finally, contrary to Argentina’s suggestion, 20 the ITC did not use a double-negative "no
discernible adverse impact" standard in lieu of the "likely" standard of Article 11.3. The question of
whether imports from each subject country have a di scernible adverse impact is part of the ITC’s
cumulation analysis under US domestic law. It has nothing to do with the application of the "likely"
standard in sunset reviews.

Procedural Issues

34. Finally, we turn to the procedural issues briefl y. First, with regard to Argentina’s requests for
specific remedies in section XI of its First Su bmission, the United States notes that GATT and WTO
practice with respect to remedies has been to urge the respondent, where the panel rules against it, to
bring the inconsistent measure into conformity wi th that Member’s WTO obligations. Therefore,
should this Panel agree with Argentina on the me rits, it should nonetheless reject Argentina’s
requested specific remedy.

35. As for the other issues the United States described in its request for preliminary rulings, it
remains perplexing that Argentina has chosen to de vote resources to vigorously debate issues that
would not exist had Argentina simply withdrawn its or iginal panel request and drafted a proper one.
Nevertheless, the United States has proven its clai ms. Nothing in Argentina’s submissions refutes the
arguments the United States has advanced. To the contrary, these arguments confirm that Argentina’s
panel request was inconsistent with Article 6.2 of the DSU.

36. More specifically, confusion persists with rega rd to the relevance of the "claims" on Page
Four of Argentina’s Panel Request. Argentina seems to believe that the placement of the word "also"
in the first sentence of its Page Four "claims" and that quoting the dictionary meaning of "also"
resolve the ambiguity as to whether these claims duplicate those in Sections A and B or are in
addition to them.
21 With all due respect, simply defining "also" does not clarify the meaning of the
sentence with respect to the rest of the panel request. In addition, Argentina’s insistence that the panel
request be read "as a whole" provides no clarification on this point. The fact that this issue continues
to be debated is itself evidence that the request was not clear.

37. It should also be noted that Page Four – in stark contrast to the other portions of the request –
does not provide a "brief summary" of the legal basis of the claim, as required by Article 6.2 of the
DSU, regardless of Argentina’s assertions to the contrary. In Sections A and B, Argentina provided a
description of the measures being challenged. On Page Four, Argentina did not. There is no
discussion between the relationship of the articles alleged to have been violated and the legal
references on Page Four. There is no summary of the legal basis of the claims – whatever they may
be.

38. Argentina’s argument that third parties found th e claim to be "clear" is, frankly, not relevant;
the third parties are not defending their laws, an d what may be "clear" enough for purposes of

21 Submission of Argentina on US Preliminary Request, para. 42.

determining third-party participation in a dispute is not necessarily clear enough for the party forced
to respond with precision to the claims being made.
22

39. Argentina makes an even more striking argu ment in connection with the US' concerns that
Argentina’s First Submission contains claims that are outside the terms of reference of the panel
request. According to Argentina, the United States must show that it suffered prejudice in order for
the Panel to find these matters outside the terms of reference.23 There is no such requirement, and, not
surprisingly, Argentina cites no support for this argument.

40. Argentina’s prejudice argument implies that pa nel requests need only be drafted clearly if
failure to do so would prejudice the respondent, and that these panel requests only form the terms of
reference if failure to do so would prejudice the re spondent. In other words, panel requests and the
due process considerations of the DSU are mean ingless unless the respondent loses the case.
Needless to say, such a results-oriented approach to due process vitiates the procedural protections of
the DSU.

41. Nonetheless, while nothing in the WTO agreem ents states that lack of prejudice cures a
violation of DSU Article 6.2, the United States was in fact prejudiced by Argentina’s deficient panel
request in this dispute. As we noted at the first substantive meeting of the Panel, Argentina’s vague
panel request resulted in the United States being un able to prepare its defence from the start. One
consequence of this is that we were rushed to complete our Firs t Submission, which caused us to
neglect to address until the first Panel meeting Argentina’s improper request for a specific remedy
from the Panel, as noted above.

42. Finally, Argentina’s argument that the United States has not ma de its case with respect to its
preliminary ruling request, and thus the Panel should simply disregard some of the US claims now,
24
is without merit. The United States has in fact made its case; Argentina has not rebutted these claims.

43. In closing, the United States urges the Panel to be mindful of two things in evaluating
Argentina’s claims: First, the obligations under Ar ticle 11.3 of the Anti-Dumping Agreement extend
primarily to due process considerations. Article 11.3 does not establish substantive requirements with
regard to the methodology a Member employs in conducting a sunset review. Second, with regard to
the analysis underpinning the Commerce and ITC determinations, Article 17.6(i) provides that a panel
may not overturn these determinations simply because another conclusion could have been drawn; if
the Member establishes facts in a proper manner and examines those facts in a manner that is
unbiased and objective, then the Member has met its obligations.

44. In this case, the United States afforded resp ondent interested parties the opportunity to place
facts and arguments on the record. The United States evaluated those facts and arguments in an
unbiased and objective manner. Argentina’s claims must therefore be rejected.

45. Mr. Chairman, that concludes the opening statement of the United States for this second
meeting of the Panel. The US delegation looks forward to your questions.

23 Submission of Argentina on US Preliminary Request, para. 88.

Closing Statement – 3 February 2004

1. Thank you very much. We have a few points to make in closing, touching on a few key
issues.

Issues Concerning the Likelihood of Continuation or Recurrence of Dumping

2. The United States is still of the view that the Sunset Policy Bulletin is not a mandatory
measure that can be challenged in WTO dispute settlement. Although the Appellate Body reversed
the panel on this issue in Japan Sunset because it believed that the panel had not fully considered the
relevant arguments, we are confident that this Panel, in properly considering all the relevant factors,
would reach the same conclusion as the Japan Sunset panel. Under US law, the Sunset Policy
Bulletin has no independent legal status; it is not a measure challengeable under WTO dispute
settlement. Nor does the Bulletin mandate any behaviour whatsoever. This is true as a matter of fact,
and any conclusion to the contrary would simply mischaracterize US law.

3. Also, contrary to Argentina’s arguments, the statute, SAA, and the Sunset Policy Bulletin –
whether considered individually or on their own – do not presume an affirmative likelihood
determination in every sunset review. As explaine d in significant detail in the US First Submission,
paras. 173-186, as the party asserting this fact, Argentina bears the burden of proving it; Argentina has
failed to do so.

4. With respect to the Sunset Policy Bulletin and Section III.A.3, in particular, Argentina has
failed to demonstrate that Commerce’s consideration of dumping and import volumes is determinative
– as opposed to probative – with respect to likelihood. In Japan Sunset, the Appellate Body itself
recognized that Section III.A.3 does not necessarily instruct Commerce to treat these two factors as
conclusive in every case (para. 181). Nor do Argentina’s Exhibits 63 or 64 shed any light on the
nature of the Policy Bulletin. These charts contain no information concerning WHAT evidence was
on the record in the sunset review and how Commer ce considered that evidence. In Japan Sunset, the
Appellate Body stated that the "probative value of the two factors for a likelihood determination in a
sunset review will necessarily vary from case to case." (Para. 176.) Argentina’s Exhibits 63 and 64
provide no insights into the facts of those cases with respect to informatio n on dumping and import
volumes; nor do they indicate whether interested parties – domestic or respondent – provided any
other information for Commerce’s consideration. These charts, therefore, are meaningless.

5. In contrast, the facts in this case are enligh tening. Siderca knew a bout the initiation of the
sunset review and the required content of the subs tantive response, but did not take advantage of its
opportunities to submit explanatory information on its likely dumping beha viour or its import
volumes. As the Appellate Body stated in Japan Sunset, "The Anti-Dumping Agreement assigns a
prominent role to interested parties ... and cont emplates that they will be a primary source of
information . . . . Company-specific data relevant to a likelihood determination under Article 11.3 can
often be provided only by the companies themselves. . . . [I]t is the exporters or producers themselves
who often possess the best evidence of their likely future pricing behaviour – a key element in the
likelihood of future dumping." (Para. 199) Neither Siderca, nor any other Argentine exporter or
producer, provided such data. The evidence that was provided led to Commerce’s affirmative
likelihood determination, not any "irrefutab le presumption" allegedly contained in the Sunset Policy
Bulletin.

6. In presenting questions on the dumping methodology, Argentina characterized the Japan
Sunset report as interpreting the AD Agreement to require administering authorities to ensure that any
margin on which they rely was calculated consistent with Article 2. We note again that Commerce
did not rely on the magnitude of the dumping margin, but rather just the existence of continued

dumping throughout the existe nce of the order. We also note that nothing in the Japan Sunset report
shifts the burden of proof for making a prima facie case of a claim from the complainant to the
respondent, as suggested by Argentina.

7. We further note that Japan Sunset found that there was no obligation to calculate a dumping
margin in a sunset review and, in this case, th e United States did not calculate a dumping margin.
While Japan Sunset did allow that claims under Article 2 could be reached in a sunset review, that
finding does not alter the application of Article 17 of the AD Agreement – that a panel examine a
matter based upon the facts made av ailable in conformity with appr opriate domestic procedures and
whether the establishment of the facts was proper an d whether the evaluation of the facts was proper,
unbiased, and objective.

8. While Argentina is not barred from raising its Article 2 claims before this Panel, the factual
basis for that claim must be the Commerce record and here, Argentina has failed to establish that the
record facts provide a basis for its claims. As we noted in response to questions, and as Argentina
agreed in paragraph 21 of its statement this morning, the Panel must limit its review to the record that
was before the administering authority. The Commerce record does not contain any calculation
methodology – rather, it contains the final determ ination of Commerce from the investigation.
Argentina’s Exhibits 52 and 66A and B were not part of the record before Commerce and are not
properly before this Panel. In addition, even if the Panel were to consider Argentina’s exhibits, those
exhibits, if anything, only confirm that the United States used a calculation methodology distinct from
that considered in EC – Bed Linen. Argentina has advanced no independent legal theory to support its
Article 2 claim. Thus, even if the principles of EC – Bed Linen were applicable as stare decisis ,
which they are not, Argentina’s claim would fail.

9. Argentina also argues that Commerce does not seek out relevant information in sunset
reviews or evaluate information in an objective manner. Even a cursory review of the facts of this
case belies Argentina’s view. Commerce takes an ac tive role in every sunset review, whether full or
expedited. Commerce informs the foreign government of an impending initiation of a sunset review
and encourages that government’s participation in the sunset review. Commerce publishes a notice of
initiation of the sunset review. Commerce has published its Sunset Regulations containing the
questionnaire. These same regulations invite intere sted parties to submit any factual information or
argument they wish Commerce to consider in the sunset review. Far from being passive, Commerce
actively seeks factual information and argument relevant to the likelihood dumping determination.

10. As we noted earlier, Argentina fails to fully acknowledge the prominent role the AD
Agreement assigns to interested parties. In this case, neither Siderca nor any other foreign interested
party provided any additional factual information in the sunset review of OCTG from Argentina.

11. For those foreign interested pa rties who failed to respond to the notice of initiation, they were
deemed to have waived their rights to participat ion. Argentina faults Commerce for not identifying
the recalcitrant interested parties, rather than these parties themselves, despite the observation in Japan
Sunset that company-specific data relevant to a li kelihood determination can often be provided only
by the companies themselves. Nothing in Article 11.3 or the AD Agreement requires the
investigating authority to extract or divine inform ation that an interested party does not wish to
submit. Thus, any fault for the absence of informat ion on the administrative record of the sunset
review of OCTG from Argentina can only be assign ed to Siderca and the non-responding respondents
themselves.

Issues Concerning the Likelihood of Continuation or Recurrence of Injury

12. We would also like to respond to just two points that Argentina made this morning
concerning the injury part of this case.

13. Our first point relates to Argentina’s statemen t that "when more future ‘variables’ are relied
upon to support the likelihood of a particular occurrence happening . . . this actually leads one to the
conclusion that such an occurrence is less likely to happen." (Argentina oral statement, para. 101.)
What is Argentina suggesting? That the United States should simplify its sunset review analysis, and
consider fewer "future variables"? Surely, this would run counter to the Appellate Body’s finding that
authorities should conduct a "rigorous examination" in sunset reviews.

14. Second, Argentina questions how an exporter ca n ever meet the ITC’s standard, given that the
ITC will consider evidence of adverse impact from th e original injury investigation. (Argentina oral
statement, para. 89.) The answer to this question lies close at hand – in the same ITC report that we
are considering, the ITC made a negative likelih ood-of-injury determination for drill pipe from
Argentina and Mexico, leading to the revocation of those anti-dumping measures. The answer also
lies in the more than one third of the reviews in which the ITC made negative likelihood of injury
determinations. We ask the Panel to reject Argentina’s suggestion that the ITC imposes a standard
that cannot be met.

Procedural Issues

15. With respect to Argentina’s request that th e Panel suggest "that the only way for the United
States to comply with" any adverse "recommendations is through the immediate termination of the
anti-dumping measure on OCTG from Argentina," in addition to our statements at the first Panel
meeting and in our opening statement this morning, the United States notes that Article 19.1 of the
DSU provides first and foremost that, "[w]here a panel or the Appellate Body concludes that a
measure is inconsistent with a covered agreement, it shall recommend that the Member concerned
bring the measure into conformity with that agr eement." This facilitates the goal of encouraging
parties to reach mutually satisfactory solutions. It also recognizes that a Member generally has many
options available to it to bring a measure into co mpliance. And although Article 19.1 also provides
that, "[i]n addition to its recommendations, the pane l or Appellate Body may suggest ways in which
the Member concerned could implement the recommend ations," most panels appropriately exercise
their discretion to not provide such suggestions. We believe that, since the US measures at issue
already conform to the WTO agreements, there is no need for either a recommendation or a
suggestion. Nonetheless, should the Panel determin e otherwise, we believe that the Panel in this
dispute should also decline to make any suggestions in this regard.

16. With respect to prejudice, the United States has already responded to this issue in our First
Submission (paras. 96-99) and our answers to the Pane l’s first set of questions (paras. 93-94). While
Argentina may not agree with our responses, we neve rtheless believe that our showing of prejudice is
sufficient and valid. Indeed, previous panels such as the panel in the Canada Wheat Board dispute
have relied on these very reasons, and we believe that this Panel should also follow suit.

17. Further, the United States has not abandoned its claims concerning the preliminary rulings by
failing to address them in its second substantive response. For the record, parties only abandon claims
by doing so affirmatively. In this instance, havi ng made its case, and having reviewed Argentina's
detailed but unconvincing response to the US' clai ms, the United States made the decision to devote
its resources to answering the panel's questions an d rebutting erroneous and mi sleading assertions in
Argentina's oral presentation to the Panel in the fi rst substantive meeting. Had Argentina's claims not
been continually evolving and had Argentina presen ted the problem clearly at the beginning of this
process, the United States could have afforded to de vote the time and energy to rebutting each line of
Argentina's response. If Argentina believes the Unit ed States has "abandoned" its due process claims

as a result of this supposed omission, then Argentin a has itself provided evidence of the prejudice the
United States has suffered in these proceedings.

18. Regardless, Argentina's argument that it may rely on the headings in the panel request to
establish the claims in its panel request only confuses the issues further. There are two headings in
the panel request. There are apparently three sets of claims (including Page Four, if those are claims).
The two headings refer to " the" determination. Neither refers to the "as such" claims. Therefore, the
headings do not clarify the claims within them.

19. In some cases, Argentina refers to the factua l background portion of the request to expand the
claims contained therein. Yet the last se ntence of that section states that the " specific claims" are set
forth below.

20. This concludes our closing statement. We w ould of course be happy to elaborate further on
any of the issues raised today, should the Panel wish to ask additional questions. Thank you again for
your time and attention.