Document: WT/DS268/R Page A-1 ANNEX A FIRST WRITTEN SUBMISSIONS BY THE PARTIES Contents Page Annex A-1 First Written Submission of Argentina 1 A-2 Annex A-2 First Written Submission of the United States A-87
Date: 12 December 2003
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 A

FIRST WRITTEN SUBMISSIONS BY THE PARTIES

Contents Page
Annex A-1 First Written Submission of Argentina 1 A-2
Annex A-2 First Written Submission of the United States A-87
Annex A-3 Submission from Argentina on the Request by the United States for
 Preliminary Rulings under Article 6.2 of the DSU
A-175

B. BURDEN OF PROOF ....................................................................................................................27
C. SUBSTANTIVE OBLIGATIONS AT ISSUE IN THIS DISPUTE ...........................................................28
1. The primary obligation of Article 11.3 of the Anti-Dumping Agreement is
termination of anti-dumping measures.................................................................................28
2. The plain and ordinary meaning of the term “likely” in Article 11.3 is
“probable.” Hence, an anti-dumping duty can be maintained only if it is
probable that dumping and injury would continue or recur if the anti-dumping
measure were terminated .......................................................................................................3 0
3. The obligations in Articles 2, 3, 6 and 12 of the Anti-Dumping Agreement are
applicable to reviews conducted under Article 11.3 ............................................................31
VII. THE DEPARTMENT’S SUNSET DETERMINATION AND THE
DEPARTMENT’S DETERMINATION TO CONDUCT AN EXPEDITED
SUNSET REVIEW WERE INCONSISTENT WITH THE ANTI-DUMPING
AGREEMENT AND GATT 1994 .........................................................................................33
A. THE US SUNSET REVIEW WAIVER PROVISIONS, 19 USC. § 1675(C)(4) AND 19 C.F.R.
§ 351.218(D)(2)(III), ARE INCONSISTENT WITH THE ANTI-DUMPING AGREEMENT:
WHEN A RESPONDENT INTERESTED PARTY IS DEEMED TO HAVE “WAIVED” ITS RIGHT
TO PARTICIPATE IN A SUNSET REVIEW, THE WAIVER PROVISIONS PRECLUDE THE
DEPARTMENT FROM CONDUCTING A “REVIEW” AND MAKING A “DETERMINATION”
WHETHER EXPIRY OF THE DUTY WOULD BE LIKELY TO LEAD TO CONTINUATION OR
RECURRENCE OF DUMPING, AND INSTEAD MANDATE A FINDING OF LIKELY DUMPING
WITHOUT ANY ANALYSIS ..........................................................................................................35
1. The US Sunset Review Waiver Provisions, as such, violate the Anti-Dumping
Agreement because they prohibit the Department from conducting a “review”
and making a “determination” as required by Article 11.3. Instead, these
provisions mandate that the Department render a “likely” dumping
determination without any substantive, prospective analysis of the facts existing
at the time of the sunset review in order to make the determination required by
Article 11.3................................................................................................................... ............35

2. The US Sunset Review Waiver Provisions are inconsistent with Articles 11.3,
11.4, 6.1, and 6.2 of the Anti-Dumping Agreement..............................................................38
B. THE DEPARTMENT’S SUNSET DETERMINATION IS INCONSISTENT WITH ARTICLE 11.3
OF THE ANTI-DUMPING AGREEMENT BECAUSE IT WAS BASED ON AN IRREFUTABLE
PRESUMPTION UNDER US LAW AS SUCH THAT TERMINATION OF THE ANTI-DUMPING
MEASURE WOULD BE LIKELY TO LEAD TO CONTINUATION OR RECURRENCE OF
DUMPING ............................................................................................................................... ....39
1. The Department’s sunset review practice unequivocally demonstrates an
irrefutable presumption that dumping would be likely to continue or recur ...................39
2. The Statutory Provisions, 19 USC. §§ 1675(c) and 1675a(c), implementing the
US obligation under Article 11.3, cannot be interpreted independently from the
further instruction provided by the SAA and Sunset Policy Bulletin. Taken
together, the US Sunset Statutory Provisions, the SAA, and the Sunset Policy
Bulletin establish an irrefutable presumption that is inconsistent with Article
11.3 of the Anti-Dumping Agreement ...................................................................................43
C. THE DEPARTMENT’S DETERMINATION TO CONDUCT AND ITS CONDUCT OF AN
EXPEDITED SUNSET REVIEW OF OCTG FROM ARGENTINA, AND ITS APPLICATION OF

2. The Commission’s conclusions with respect to the volume of imports, price
effects on the domestic like product, and impact of imports on the domestic
industry demonstrate the Commission’s failure to conduct an objective
examination in violation of Articles 11.3, 3.1, and 3.2 of the Anti-Dumping
Agreement. The Commission’s findings were not based on “positive evidence”
of likely injury in the event of termination, in violation of Articles 11.3, 3.1, and
3.2 of the Anti-Dumping Agreement .....................................................................................67
3. The Commission failed to evaluate all relevant economic factors and indices
having a bearing on the state of the industry, including all of the factors
enumerated in Article 3.4 of the Anti-Dumping Agreement...............................................70

4. The Commission failed to analyse the issue of whether, if the anti-dumping
measure were revoked, the continuation or recurrence of injury to the domestic
industry would be caused by imports of Argentine OCTG, in violation of Article
11.3 and 3.5 of the Anti-Dumping Agreement......................................................................73
C. THE US STATUTORY REQUIREMENTS THAT THE COMMISSION DETERMINE WHETHER
INJURY WOULD BE LIKELY TO CONTINUE OR RECUR “WITHIN A REASONABLY
FORESEEABLE TIME” (19 USC. § 1675A(A)(1)) AND THAT THE COMMISSION “SHALL
CONSIDER THAT THE EFFECTS OF REVOCATION OR TERMINATION MAY NOT BE
IMMINENT, BUT MAY MANIFEST THEMSELVES ONLY OVER A LONGER PERIOD OF
TIME” (19 USC. § 1675A(A)(5)), ARE INCONSISTENT WITH ARTICLES 11.1, 11.3 AND 3
OF THE ANTI-DUMPING AGREEMENT .......................................................................................74
1. 19 USC. §§ 1675a(a)(1) and (5) are inconsistent as such with Articles 11.3 and 3
of the Anti-Dumping Agreement ...........................................................................................74
2. The Commission’s application of 19 USC. §§ 1675a(a)(1) and (5) in it the Sunset
Review of OCTG from Argentina was inconsistent with Articles 11.3 and 3 of
the Anti-Dumping Agreement ...............................................................................................76
D. THE COMMISSION’S APPLICATION OF A “CUMULATIVE” INJURY ANALYSIS IN THE
SUNSET REVIEW OF THE ANTI-DUMPING DUTY MEASURE ON OCTG WAS
INCONSISTENT WITH ARTICLES 11.3 AND 3.3 OF THE ANTI-DUMPING AGREEMENT................76
E. ASSUMING ARGUENDO THAT ARTICLES 3.3 AND 11.3 DO NOT PRECLUDE CUMULATION
IN ARTICLE 11.3 REVIEWS, THEN THE TERMS OF ARTICLE 3.3 APPLY TO ANY SUCH
CUMULATIVE ANALYSIS IN A SUNSET REVIEW. APPLICATION OF EITHER THE DE
MINIMIS OR NEGLIGIBILITY REQUIREMENTS (BOTH OF WHICH MUST BE SATISFIED)
WOULD HAVE PREVENTED CUMULATION IN THIS CASE. THE COMMISSION’S
CUMULATIVE INJURY ANALYSIS IN THE COMMISSION’S SUNSET DETERMINATION
FAILED TO SATISFY THE ARTICLE 3.3 REQUIREMENTS..............................................................78
F. THE COMMISSION’S USE OF A CUMULATED INJURY ANALYSIS IN THIS SUNSET
REVIEW WAS INCONSISTENT WITH ARTICLES 11.3 AND 3.1 OF THE ANTI-DUMPING
AGREEMENT BECAUSE IT PREVENTED THE COMMISSION FROM APPLYING A “LIKELY”
STANDARD, AND WAS NOT BASED ON POSITIVE EVIDENCE.......................................................79
IX. THE IDENTIFIED US MEASURES ARE INCONSISTENT WITH ARTICLE
VI OF THE GATT 1994, ARTICLES 1 AND 18 OF THE ANTI-DUMPING
AGREEMENT, AND ARTICLE XVI:4 OF THE WTO AGREEMENT .........................79
A. THE US MEASURES VIOLATE THE BASIC PRINCIPLES OF THE ANTI-DUMPING
AGREEMENT, AS PROVIDED IN ARTICLE 1 ................................................................................80
B. THE IDENTIFIED US MEASURES, WHICH CONSTITUTE A “SPECIFIC ACTION AGAINST
DUMPING,” VIOLATE ARTICLE 18.1 OF THE AGREEMENT .........................................................80

I. INTRODUCTION
A. ANTI-DUMPING DUTIES CANNOT EXIST IN PERPETUITY
1. This dispute raises an issue of fundamental importance to the integrity of the multilateral
trading system: whether WTO Members must respec t agreed WTO disciplines regarding the use of
anti-dumping measures.

2. During the Uruguay Round, the drafters of the Agreement on Implementation of Article VI of
the General Agreement on Tariffs and Trade 1994 (“Anti-Dumping Agreement”) agreed on rules that
struck a carefully calibrated balance between Me mbers’ rights and obligations concerning anti-
dumping measures. Members recognized the right of importing countries to use anti-dumping
measures in order to counteract injurious dumping. At the same time, they established rules to
prevent the abuse of anti-dumping measures. Members set out clear rules governing the imposition,
maintenance, and termination of anti-dumping duties. Indeed, this careful balance was a key element
of the overall package of rights and obligations accepted by Argentina, the United States, and other
WTO Members at the conclusion of the Round.

3. Among the most important disciplines regarding anti-dumping measures are those set out in
Article 11 of the Anti-Dumping Agre ement. Article 11.1 requires th at anti-dumping orders must be
limited in three significant respects: duration (“onl y as long as necessary”); magnitude (“only to the
extent necessary”); and purpose (“to counteract dumping which is causing injury”).

4. As one panel recently noted, Article 11.1 “contains a general, unambiguous and mandatory
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, the modalities of whic h are set forth in paragraphs 2 and 3.”
1 This general
principle is expressed substantively throughout Article 11, including in the “sunset review” provisions
of Article 11.3.

5. The general obligation set forth in Article 11.3 – that anti-dumping measures shall be
terminated after five years – established a clear te mporal limitation on the use of anti-dumping duties.
Thus, the drafters of the Uruguay Round agreements accepted that anti-dumping measures could not
exist in perpetuity but rather would be subject to strict time limitations unless specified requirements
could be satisfied to permit their continued maintenanc e. Specifically, Article 11.3 requires that the
authorities conduct a review and make a determination of whether termination of an anti-dumping
measure would be likely to lead to continuation or recurrence of dumping and injury. Any findings of
likely dumping and likely injury must be based on positive evidence.

6. Indeed, the Appellate Body made clear that “[i]f [a WTO Member] does not conduct a sunset
review, or, having conducted such a review, it does no t make such a positive determination, the duties
must be terminated.”
2

7. The United States has failed to respect these binding WTO disciplines on the application and
maintenance of anti-dumping measures. In general terms:

1 Panel Report, European Communities – Anti-Dumping duties on Malleable Cast Iron Tube or Pipe
Fittings from Brazil, WT/DS219/R, adopted 18 August 2003, para. 7.113 (“Pipe Fittings from Brazil”).
2 Appellate Body Report, United States – Countervailing Duties on Certain Corrosion-Resistant
Carbon Steel Flat Products from Germany , WT/DS213/AB/R, adopted 19 December 2002, para. 63 (“ Steel
from Germany”).

• The United States has not adequately implemente d the Article 11.3 disciplines into US law,
regulations, procedures, and practices.

• In the conduct of the “sunset review” of the anti-dumping measure on Oil Country Tubular
Goods (“OCTG”) from Argentina, the United St ates acted inconsistently with mandatory
preconditions for continuing the measure.

8. The Appellate Body recently adopted a strict construction of the sunset review provisions of
the Agreement on Subsidies and Countervailing Measur es (“SCM Agreement”), in part because of its
stated wish not to contravene “the requirements of Article 3.2, repeated in Article 19.2 of the Uruguay
Round Understanding on Rules and Procedures Gove rning the Settlement of Disputes (“DSU”), that
our findings and recommendations ‘cannot add to or diminish the rights and obligations provided in
the covered agreements’.”
3 It is important to stress that Article 3.2 of the DSU has two, equally
important components: rights and obligations. A prim ary right of Argentina under Article 11.3 of the
Anti-Dumping Agreement was to have the duties on OCTG terminated after five years.
Concomitantly, a primary obligation of the United States under the same provision was to terminate
the duties on OCTG from Argentina after five years. The United States could rely on the exception to
the primary obligation in Article 11.3 – continuati on of the anti-dumping measure – only with strict
compliance with the requirements under Article 11.3 to conduct a “review” and make a
“determination” based on “evidence” that “dumping” and “injury” would be “likely” to continue or
recur. As will be argued in this submission, the United States failed to satisfy the requirements for
continuing the measure, thereby infringing Argentina’s rights.

9. If the system of dispute resolution under the DSU leads to interpretations of provisions of the
Anti-Dumping Agreements that fail to give terms their common meaning, the system will fail to
preserve the careful balance of rights and obligations agreed by the Members. In this case, the
principal obligation/right created by Article 11.3 – termination of anti-dumping measures after five
years – must not be diminished. Otherwise, the limited exception for maintaining an anti-dumping
measure will supersede the principal obligation of Article 11.3. Failure to give the terms of
Article 11.3 their common meaning would undermine the principle of effectiv e treaty in terpretation
recognized under the DSU and expressed by the Appellate Body in United States – Gasoline.
4

10. Reduced to its core, Argentina’s position is that the United States must respect the limits on
the use and maintenance of anti-dumping measures, as well as the right of WTO Members to have
anti-dumping duties terminated and not exist in perpetuity.

B. HISTORY OF US TRADE REMEDY PROCEEDINGS AGAINST ARGENTINE OCTG
11. The Argentine OCTG producer and exporter, Siderca S.A.I.C. (“Siderca”), has had a long
experience with US trade remedy laws. This long experience provides important context for
evaluating the decision by the US Government to continue the anti-dumping measure on OCTG from
Argentina. Siderca’s experience can be summarized as follows:

12. 1984
: In 1984, the US industry filed anti-dump ing and countervailing duty petitions against
OCTG imports, including those from Argentina/Side rca. The anti-dumping in vestigation ended in a
finding of no injury. 5 At that time, US law imposed certain requirements on the practice of
cumulation, and the imports were not analyzed on a cumulative basis. The negative injury

3 Id. at para. 91.
4 Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline ,
WT/DS2/AB/R, adopted 20 May 1996, at 16-17, 23 (“United States – Gasoline”).
5 Oil Country Tubular Goods from Argentina and Spain , 50 Fed. Reg. 21,147 (Int’l Trade Comm’n
1985)(final injury determ.)(ARG-19).

determination, therefore, ended th e investigation without the issuance of an anti-dumping order.
However, because of transition pr ovisions of US law implementing the Tokyo Round Agreement on
Subsidies and Countervailing Measures, the United States did not extend an injury determination to
Argentina for the purposes of co untervailing duty investigations. The US Department of Commerce
(the “Department”) determined that Siderca enjoyed a subsidy equal to 0.90 per cent, slightly above
the de minimis level provided for under US law at the time (0.5 percent). Because the United States
did not extend the injury test to Argentina, th e Department imposed a countervailing duty (“CVD”)
order in the amount of 0.90 per cent on exports from Siderca.6

13. 1985 : After a change in US law regarding the cumulation provision, the US OCTG industry
re-filed the anti-dumping case that it had lost six months earlier. This prompted another full
investigation of imports from producers in several countries, including Siderca. Siderca again
participated fully in the investigation, and this time the Department issued a decision of no dumping. 7
Accordingly, this second attempt by the US industr y to have an anti-dumping order cover Siderca’s
exports also failed.

14. 1986-1994
: During this period, the Department conducted eight, separate CVD reviews of
the initial 0.90 per cent CVD order issued in 1984. 8 Each year, Siderca and the Government of
Argentina fully complied with the investigation. In nearly every year, the Department concluded that
there was no subsidy. In one year, the Department recalculated a subsidy of 0.83 per cent, again
slightly above the 0.5 de minimis level. 9 Despite these no or extremely small subsidy findings,
Siderca and the Argentine Government were forced to participate in these reviews year after year,
expending significant resources, both internal and external. Most importantly, because of the US
system of retrospective assessment, Siderca and the importers had to accept the commercial risk that
the duties might be increased retroactively at any time due to administrative decisions in the CVD
reviews. In 1997, this process of continuous an nual reviews finally ended when the US Government
recognized that it lacked the legal authority, retro active to 1991, to continue collecting countervailing
duties under orders imposed without conducting an injury test. Therefore, the US Government
revoked the countervailing duty orde r applicable to Argentine OCTG, ending the decade-old CVD
case.10

15. 1995 : The US industry filed two, simultaneou s new dumping cases involving Siderca, one
against OCTG (the one under consideration in this proceeding) and the other against small-diameter
seamless pipe. Siderca was not able to defend both cases simultaneously, and was forced to make a
business judgment about which case was more signif icant commercially. Therefore, Siderca notified

6 Oil Country Tubular Goods from Argentina , 49 Fed. Reg. 46,564 (Dep’t Comm. 1984)(final
countervailing determ.)(ARG-18).
7 Oil Country Tubular Goods from Argentina , 51 Fed. Reg. 20,240 (Dep’t Comm. 1986)(final anti-
dumping determ.)(ARG-20).
8 Oil Country Tubular Goods from Argentina , 52 Fed. Reg. 846 (Dep’t Comm. 1987)(final
countervailing admin. review for the period 1985)(ARG-21); Oil Country Tubular Goods from Argentina ,
56 Fed. Reg. 38,116 (Dep’t Comm. 1991)(final countervailing admin. reviews for the periods 1987 and
1988)(ARG-22); Oil Country Tubular Goods from Argentina , 56 Fed. Reg. 64,493 (Dep’t Comm. 1991)(final
countervailing admin. review for the period 1989) (ARG-23); Oil Country Tubular Goods from Argentina , 62
Fed. Reg. 55,589 (Dep’t Comm. 1997)(final countervailing admin. review for the period 1991)(ARG-33); Oil
Country Tubular Goods from Argentina , 62 Fed. Reg. 24,639 (Dep’t Comm. 1997)(final countervailing admin.
reviews and termination of admin. reviews)(ARG-30).
9 Oil Country Tubular Goods from Argentina , 56 Fed. Reg. 38,116 (Dep’t Comm. 1991)(final
countervailing admin. reviews)(recalculating a subsidy of 0.93 per cent for the period 1988)(ARG-22).
10 Oil Country Tubular Goods from Argentina, 62 Fed. Reg. 41,361 (Dep’t Comm. 1997)(revocation of
countervailing duty order)(ARG-31).

the Department that it was not able to defend the sm all-diameter seamless pipe case and, as a result,
the Department issued a punitive anti-dumping order in the amount of 108.13 per cent.
11

16. In the OCTG case, Siderca defended itself in the anti-dumping investigation as it had done in
1984 and 1985, and as it had done in the eight countervailing duty reviews. The Department issued a
negative preliminary determination; that is, it found that Siderca was not dumping OCTG in the
United States.12 This was consistent with the previous determination that Siderca was not engaging in
price discrimination. However, in the final dete rmination, the Department made an affirmative
finding of dumping, calculating an anti-dumping margin of 1.36 per cent, slightly above the 0.5
per cent de minimis level in effect at that time. 13 There was no substantive change in information that
led to the affirmative final determination compared to the negative preliminary determination.
Instead, the Department made a small adjustment in its analysis of third-country sales, raising the
price of those sales by approximately 6 per cent, which then artificially caused a small dumping
margin on certain of Siderca’s sales. 14 The effect of this adjustment was to cause small dumping
margins on certain of the sales. Combined with the US practice of zeroing out the negative dumping
margins, this small amount of dumping caused by th e adjustment was sufficient to raise the overall
anti-dumping margin above the de minimis level, specifically to 1.36 per cent. Ironically, the
differential on which the US authorities based the adju stment was the direct result of Siderca’s efforts
to abide by the US countervailing duty law.

17. This is the context leading up to the sunset de termination under review by this panel. It is a
context that shows near constant pressure by the US industry on Argentine OCTG exports, a near
constant need for the Argentine industry and Govern ment to defend itself in the US proceedings, a
long demonstrated history of fair trading by Siderca, and more than a decade of investigation by the
Department of the OCTG industry. During this en tire period, there were two negative determinations
of dumping, several no subsidy findings, with the only affirmative subsidy findings not exceeding one
per cent, and a small anti-dumping margin of 1.36 per cent that was issued on controversial grounds
resulting from Siderca’s effort to abide by US law. Throughout this period, Siderca had to participate,
and participated fully, in three anti-dumping inve stigations, one CVD investigation, several CVD
administrative reviews, and four anti-dumping administrative reviews
15 for the purpose of proving
that it did not ship to the United States.

11 Small Diameter Circular Seamless Carbon and Alloy Steel Standard, Line, and Pressure Pipe from
Argentina, 60 Fed. Reg. 31,953 (Dep’t Comm. 1995)(final anti-dumping determ.)(ARG-25).
12 Oil Country Tubular Goods from Argentina , 60 Fed. Reg. 13,119 (Dep’t Comm. 1995)(amended
prelim. anti-dumping determ.)(ARG-24).
13 Oil Country Tubular Goods from Argentina , 60 Fed. Reg. 33,539 (Dep’t Comm. 1995)(final anti-
dumping determ.)(ARG-26); Oil Country Tubular Goods from Argentina , 60 Fed. Reg. 41,055 (Dep’t Comm.
1995)(anti-dumping duty order)(ARG-27).
14The adjustment arose from a differential rebate level in the two relevant export markets (the United
States and China). At that time, the Argentine Government administered a program to rebate indirect taxes
incurred during the production and sales process. This practice was then, and continues to be, a legitimate fiscal
program under certain conditions. The level of rebate applicable to Siderca’s exports was 15 per cent.
However, because Siderca was subject to constant CVD reviews in the United States, and because of the
uncertainty of the retrospective review system, the Argentine Government agreed to reduce the level of export
rebates on shipments to the United States by 6.7 per cent. At the final stage of the anti-dumping investigation,
the Department made a “circumstance of sale” adjustment equal to the amount of the difference between the
rebates received on exports to the two markets.
15 Oil Country Tubular Goods from Argentina , 62 Fed. Reg. 18,747 (D ep’t Comm. 1997)(rescinded
admin. review)(ARG-29); Oil Country Tubular Goods from Argentina , 63 Fed. Reg. 49,089 (Dep’t Comm.
1998)(rescinded anti-dumping admin. review)(ARG-36); Oil Country Tubular Goods from Argentina , 64 Fed.
Reg. 4,069 (Dep’t Comm. 1999)(rescinded anti-dumping admin. review)(ARG-38); Oil Country Tubular Goods
from Argentina, 65 Fed. Reg. 8,948 (Dep’t Comm. 2000)(rescinded anti-dumping admin. review)(ARG-43).

II. FACTUAL BACKGROUND
A. THE ANTI-DUMPING INVESTIGATION GIVING RISE TO THE ANTI-DUMPING DUTY ORDER ON
ARGENTINE OCTG
18. The anti-dumping investigation giving rise to the US anti-dumping measure against Argentine
OCTG began in 1994 and was completed in 1995. The investigation was initiated prior to the entry
into force of the WTO Agreement, but the measure wa s issued eight months af ter the entry into force
of the WTO Agreement (August 1995). As such, under US law, the investigation was governed by
the pre-WTO laws and regulations.

19. The US industry’s petition in the original investigation identified Siderca as the only producer
and exporter of OCTG from Argentin a. The Department justified the initiation of an investigation of
Argentine OCTG based on the information related to Siderca that the petitioners provided in the
petition. Siderca was the only Argentine producer and exporter considered to be a mandatory
respondent for the investigation, and was the only party to which the Department issued a
questionnaire. The Department conducted a full in vestigation of Siderca and calculated a dumping
margin of 1.36 per cent for Siderca. 16 Even though this amount was below the 2 per cent de minimis
level established in Article 5.8 of the WTO Agr eement, the investigation was governed by pre-WTO
legislation, which established a de minimis level of 0.5 per cent. Therefore, the 1.36 per cent dumping
margin was considered sufficient to justify the issuance of an anti-dumping duty order.

20. Under the US retrospective system of assessing anti-dumping duties, the dumping margin
calculated in the original investigation serves as a deposit rate for future imports. Final assessment
then occurs after the opportunity for an administra tive review of any import s, the deposit rate is
adjusted to reflect the results of any review, and definitive duties are assessed in the amount
established in the review.

21. Following the imposition of the US anti-du mping measure on Argentine OCTG, Siderca
chose to stop exporting to the US market because of the difficulties and uncertainty presented by the
US system of administrative reviews and the retrosp ective system of assessment of duties. This was
demonstrated through a series of annual reviews initiated by the Department. Each August from
1996-1999 (covering the five-year period relevant to the sunset review that forms the basis of this
dispute), representatives of the US industry reques ted an annual review of shipments by Siderca.
Under US law and practice, the petitioners are requir ed to identify the exporter for which it requests a
review, and each time during this period, the US industry requested a review only of Siderca. For
example, the US industry’s letter requesting the second review states: “Review is requested of
Siderca because it is the only known producer of oil country tubular goods in Argentina . . . .”
17 As a
result of such requests, the Department initiated a review in each of the four years following the
issuance of the anti-dumping order on OCTG fr om Argentina, publishing an “initiation notice”
naming Siderca as the exporter to be reviewed. In certain of the reviews, the Department also issued
an anti-dumping questionnaire.18

16 Oil Country Tubular Goods from Argentina , 60 Fed. Reg. 33,539 (Dep’t Comm. 1995)(final anti-
dumping determ.)(ARG-26).
17 Letter from Schagrin Associates to the Honourable William M. Daley of 29 August 1997 (“Oil
Country Tubular Goods from Argentina: Request for Administrative Review”) at 2 (ARG-58).
18 Initiation of Anti-Dumping and Countervailing Duty Reviews , 61 Fed. Reg. 48,882 (Dep’t Comm.
1996)(initiating review for the period 11 August 1995, through 31 July 1996)(ARG-28); Initiation of Anti-
Dumping and Countervailing Duty Reviews , 62 Fed. Reg. 50,292 (Dep’t Comm. 1997)(initiating review for the
period 1 August 1996, through 31 July 1997)(ARG-32); Initiation of Anti-Dumping and Countervailing Duty
Reviews, 63 Fed. Reg. 51,893 (Dep’t Comm. 1998)(initiating review for the period 1 August 1997, through
31 July 1998)(ARG-37); Initiation of Anti-Dumping and Countervailing Duty Reviews , 64 Fed. Reg. 53,318
(Dep’t Comm. 1999)(initiating review for the period 1 August 1998, through 31 July 1999)(ARG-41).

22. In each of the four reviews requested of Siderca, Siderca replied by stating that it did not
export OCTG to the United States for consumption in the United States during the review period, and
as a result asked that the review be rescinded. In all cases, this “no shipment certification” led to
additional questions from the Department and additional comments from the US industry. In all
cases, the Department ultimately agreed with Si derca’s certification that it made no shipments and
therefore rescinded the annual reviews because there were no shipments to review.

B. S
UNSET REVIEW OF OCTG FROM ARGENTINA
23. On 3 July 2000, the Department automatically initiated a sunset review of the anti-dumping
duty order on OCTG from Argentina, in addition to the sunset reviews of OCTG from Italy, Japan,
Korea, and Mexico. 19 The Petitioners responded to the in itiation notice and filed substantive
responses as well as briefs arguing that revocation of the order would be likely to lead to recurrence or
continuation of dumping, and that the anti-dumping duty order should be continued.20

24. Siderca also responded to the initiation no tice and filed a complete substantive response
arguing that revocation of the order would not be lik ely to lead to continuation or recurrence of
dumping and that the Department should theref ore revoke the order on OCTG from Argentina.
21
Siderca was the only Argentine OCTG producer/exporter investigated by the Department in the
original anti-dumping investiga tion in 1994-95. In addition, Siderca was the only Argentine
producer/exporter for which annual reviews were requested for the years ending July 1996, 1997,
1998, and 1999, and conducted during the five-year period relevant to sunset proceedings conducted
by the Department and the US International Trade Commission (the “Commission”).

25. Siderca’s substantive response satisfied all of the requirements set forth in 19 C.F.R. §§
351.218(d)(3)(ii)(A)-(I) and 19 C.F.R. §§ 351.218(d)(3)(iii)(A)-(E) necessary for the submission to be
“complete.” In its response, Siderca stated that it did not export OCTG to the United States during the
five-year period examined in the sunset review. Si derca also stated that, consequently, there was no
finding of dumping other than the 1.36 per cent dumping margin calculated in the original
investigation.
22 However, on 22 August 2000, the Department determined that Siderca’s otherwise
complete substantive response to the Department’s notice of initiation of the sunset review was
“inadequate” solely on the following basis:

During 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
exports of the subject merchandise to the United States was significantly below
50 per cent. Because the respondent accounts for significantly less than the
50 per cent threshold that the Department normally will consider to be an adequate
foreign response (as provided in section 35 1.218(e)(1)(ii)(A)), we recommend that
you determine Siderca’s response to be in adequate and that we should conduct an

19 See Notice of Initiation of Five-Year (“Sunset”) Reviews , 65 Fed. Reg. 41,053 (Dep’t Comm. 2000)
(ARG-44). The ITC also initiated its sunset review on 3 July 2000. Oil Country Tubular Goods From
Argentina, Italy, Japan, Korea, and Mexico , 65 Fed. Reg. 41,088 (Int’l Trade Comm’n 2000)(notice of
institution of sunset reviews)(ARG-45).
20Issues and Decision Memorandum for the Sunset Reviews of the AD Orders on Oil Country Tubular
Goods from Argentina, Italy, Japan, and Korea (Dep’t Comm., 31 October 2000 )(final results) at 3-4 (ARG-
51).
21 See Substantive Response of Siderca to the Department’s Initiation of Sunset Review of the AD
Order on OCTG from Argentina (2 August 2000)(ARG-57).
22 Oil Country Tubular Goods from Argentina , 60 Fed. Reg. 33,539 (Dep’t Comm. 1995)(final anti-
dumping determ.)(ARG-26).

expedited (120 day) sunset review (as provi ded for at section 751(c)(3)(B) of the Act
and at section 351.218(e)(1)(ii)(C) of the Department’s regulations).23
26. In its Issues and Decision Memorandum , dated 31 October 2000 (and incorporated by
reference into the Department’s Sunset Determination), the Department stated:

Although the Department received a substantive response on behalf of Siderca, the
Department explained in its 22 August 2000 adequacy determination that because,
during the period 1995 to 1999, the average annual share of Siderca’s exports of the
subject merchandise vis-a-vis the total Arge ntine exports of the subject merchandise
during the same period was significantly below the fifty-per cent threshold provided
for in section 351.218(e)(1)(ii)(A) of the Sunset Regulations, the Department
determined Siderca’s substantive response to be inadequate.24
27. Based on its determination that Siderca’s response was inadequate, the Department stated
“[i]n 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 Su nset Regulations, this constitutes a
waiver of participation.”25

28. In its 7 November 2000 Final Determination in the sunset review (which incorporates the
Department’s Issues and Decision Memorandum ), the Department stated that revocation of the anti-
dumping duty on OCTG from Argentina would be likely to lead to continuation or recurrence of
dumping. The Department stated that the margin of likely dumping was 1.36 per cent, the same rate
as in the original investigation. The Department then reported this rate to the Commission as the
likely dumping margin to prevail in the event of termination. 26

29. In the Commission’s Sunset Determination, 27 the Commission conduc ted a cumulative injury
analysis. The Commission also distinguished its sunset findings on the basis of the type of OCTG
products under review.

30. With regard to casing and tubing, the Commission found that there was no likelihood that
subject imports of casing and tubing from Argentina, Italy, Japan, Korea, and Mexico would have no
discernible adverse impact on the domestic industry if the orders were revoked.
28 It based its
determination on the following factors: (1) despite declines in imports since imposition of the order,
producers in each of the subject countries continued to export to the United States, and had retained

23 Oil Country Tubular Goods from Argentina: Adequacy of Respondent Interested Party Response to
the Notice of Initiation, A-357-810 (Dep’t Comm., 22 August 2000) at 2 (ARG-50).
24 Issues and Decision Memorandum for the Sunset Reviews of the AD Orders on Oil Country Tubular
Goods from Argentina, Italy, Japan, and Korea (Dep’t Comm., 31 October 2000)(final results) at 3 (“Issues and
Decision Memorandum”) (ARG-51).
25 Id. at 5.
26Oil Country Tubular Goods from Argentina, Italy, Japan, and Korea , 65 Fed. Reg. 66,701 (Dep’t
Comm. 2002)(final results sunset review)(ARG-46).
27 Oil Country Tubular Goods from Argent ina, Italy, Japan, Korea, and Mexico , USITC Pub. 3434,
Inv. Nos. 701-TA-364, 731-TA-711, and 713-716 (June 2001) (“Commission’s Sunset Determination”) (ARG-
54).
28 In determining whether imports compete with each other and with the domestic like product, the
Commission considers the following factors: (1) the degree of fungibility between the imports from different
countries and between imports and the domestic like product; (2) the presence of sales or offers to sell in the
same geographical markets of imports from different countries and the domestic like product; (3) the existence
of common or similar channels of distribution for imports from different countries and the domestic like
product; and (4) whether the imports are simultaneously present in the market. See, e.g., Wieland Werke, AG v.
United States, 718 F. Supp. 50, 52 (CIT 1989)(ARG-9).

active channels of distribution in the United States ; (2) the importance of price considerations to
purchasers, along with other prevailing conditions of competition, and (3) the fact that foreign
producers produced other tubular products on the same machinery used to produce casing and tubing
and thus could easily shift production between the subject merchandise and other products.
29

31. The Commission also found a likelihood of a reasonable overlap of competition among
imports from the subject countries. First, it determined that the subject imports and the domestic like
product were fungible, in that they were made to the same specifications, including relevant API
certification requirements.30 It based this conclusion on questionnaire responses from US producers,
importers, and purchasers.

32. Second, it found that the subject imports and the domestic like product were sold through
similar channels of distribution, particularly to steel distributors.
31 In this regard, it discounted
evidence presented by Siderca that much of their production was sold to end-users, stating that,
notwithstanding this fact, the majority of subject imports were still sold to distributors.

33. Third, the Commission found that sales of subject imports and the domestic like product
occurred in the same geographic market.
32 It noted that both US distributors and importers reported
selling on a nationwide basis, and that sales of both imports and domestic casing and tubing were
concentrated in Texas and the Gulf region.

34. Finally, the Commission noted that subject casing and tubing imports and domestic casing
and tubing were simultaneously present in the mark et in each year during the investigation period
(1992-94), and there was no information on the record of the reviews that indicated that this situation
would change if the orders were to be revoked.
33

35. With respect to the likelihood analysis, th e Commission considered the likely volume, the
likely price effects, and the likely impact on the domestic industry. With regard to the volume of
subject imports, the Commission concluded: “[W]e find that the volume of subject imports is likely
to increase significantly in the event of revocation.” 34 The Commission made several findings in
order to buttress this conclusion. First, the Co mmission pointed to the existence of “substantial”
available capacity in the subject countries and concluded that, notwithstanding high capacity
utilization rates in those countries, “the record indicates that these producers have incentives to devote
more of their productive capacity to producing and shipping more casing and tubing to the US
market.” 35 In this respect, the Commission found that producers in the subject countries were
“export-oriented,” and that in particular, those producers would focus on the US market. 36 The
Commission emphasized that the “Tenaris alliance,” 37 with its global focus, would likely have a
strong incentive to have a significant presence in the US market. 38 Further, the Commission found

29 Commission’s Sunset Determination) at 10-11 (citing Staff Report at II-17, attached) (ARG-54).
30 Id. at 12 (citing Staff Report at I-18, II-17, attached).
31 Id. at 13 (citing Staff Report at I-20, II-1-II-3, attached).
32 Id. (citing Oil Country Tubular Goods from Argentina, Austria, Italy, Japan, Korea, Mexico, and
Spain, USITC Pub. 2911, Inv. Nos. 701-TA-363 and 364, and 731-TA-711-717 (August 1995) at I-22, and Staff
Report at II-4).
33 Id. at 14 (citing Oil Country Tubular Goods from Argentina, Austria, Italy, Japan, Korea, Mexico,
and Spain, USITC Pub. 2911, Inv. Nos. 701-TA-363 and 364, and 731-TA-711-717 (August 1995) at I-23).
34 Id. at 17.
35Id. at 19.
36 Id. at 20.
37 The Commission explained: “NKK, TAMSA, and Si derca are all members of the Tenaris alliance
which has long-term global contracts with large oil and gas companies with operations in the United States.” Id.
at 23, n.153.
38 Id. at 19.

that (1) there were significant differences between US and world-market prices for casing and tubing,
with US prices being consistently higher, and (2) foreign producers faced significant import barriers
in third-country markets.39

36. The Commission made several findings on the issue of the importance of price in purchasing
decisions. Responding purchasers ranked quality as their prime purchasing criterion just as frequently
as price, and product availability was considered as important to pu rchasers just as frequently as
price.40 The Commission acknowledged that there was no clear trend in responses to the question of
whether price differences or differences in factor s other than price were significant in competition
between US product and subject imports of casing and tubing. 41 The Commission disregarded data
that showed that purchasers ranked factors such as delivery time, delivery terms, availability, and
product quality as higher than pr ice in importance, and ranked factors such as discounts offered,
reliability of supply, and product consistency as equal in importance.42

37. With regard to the Commission’s analysis of the impact of imports on the domestic industry,
the Commission recited relevant factors in mere checklist form:

In these reviews, we find that a significant increase in subject imports is likely to
have negative effects on both the price and volume of the domestic producers’
shipments despite strong demand conditions in the near term. We find that these
developments likely would have a significant adverse impact on the production,
shipments, sales, market share, and revenues of the domestic industry. This reduction
in the domestic industry’s production, shipments, sales, market share, and revenues
would result in erosion of the domestic industry’s profitability as well as its ability to
raise capital and make and maintain necessary capital investments.
43
 The Commission determined that the revocati on of the anti-dumping duty order on OCTG
(other than drill pipe – i.e., casing and tubing) from Argentina and the other cumulated countries
would be likely to lead to continua tion or recurrence of material in jury to the US industry within a
reasonably foreseeable time.44

III. PROCEDURAL BACKGROUND
38. On 7 October 2002, Argentina requested cons ultations with the United States regarding
determinations of the Department and the Commis sion arising out of the sunset reviews of OCTG
from Argentina, as well as certain US laws, regula tions, procedures, and practices relating to sunset
reviews.45 Argentina indicated that it considered the identified measures to be inconsistent with
Articles 1, 2, 3, 6, 11, 12, 18, and Annex II of th e Anti-Dumping Agreement, Articles VI and X of the
GATT 1994, and Article XVI:4 of the WTO Agreement.

39. Consultations were held on 14 November 2002, and 17 December 2002. The consultations
failed to resolve the dispute.

39 Id. at 19-20.
40 Id. at II-17 (Staff Report).
41 Id. at II-18 n.71 (Staff Report).
42 Id. at II-19 (Staff Report).
43 Id. at 22-23.
44Id.
45United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from
Argentina: Request for Consultation by Argentina, WT/DS268/1 (7 October 2002).

40. On 3 April 2003, Argentina requested the establishment of a panel.
46 T h e P a n e l w a s
established by the Dispute Settlement Body on 19 May 2003. On 22 August 2003, Argentina
requested the Director General, pursuant to Articl e 8.7 of the DSU, to determine the composition of
the panel.47 On 4 September 2003, the Director General wr ote to the parties, communicating the final
composition of the panel, as follows:

 Chairman: Mr. Paul O’Connor
 Members: Mr. Bruce Cullen
 Dr. Faizullah Khilji. 48

IV. EXECUTIVE SUMMARY OF ARGENTINA’S CLAIMS
41. Argentina’s claims are summarized as follows:

A. CERTAIN US SUNSET REVIEW STATUTORY , REGULATORY, AND ADMINISTRATIVE PROVISIONS
ARE WTO-INCONSISTENT AS SUCH
• 19 USC. § 1675(c)(4) and 19 C.F.R. § 351.21 8(d)(2)(iii) (the “waiver provisions”) mandate
that the Department find likelihood of continuation or recurrence of dumping without the
conduct of a “review,” without any analysis and, hence, without the required “determination,”
in violation of Article 11.3 of the Anti-Du mping Agreement. Article 11.3 requires the
authority to conduct a review and make a determination regarding whether expiry of the duty
would be likely to lead to continuation or recurr ence of dumping and injury. In the absence of
such a review and determination by the auth ority, Article 11.3 mandates that anti-dumping
measures be terminated after five years (see section VII.A.1);

• 19 USC. § 1675(c)(4) and 19 C.F.R. § 351.218(d)(2)(iii) also violate US obligations under
Article 6 of the Anti-Dumping Agreement, which apply to sunset reviews by virtue of the
cross-reference contained in Article 11.4. Argentina submits that the waiver provisions violate
Article 6.1 because they preclude respondent inte rested parties from being able to present
evidence. The waiver provisions deny respondent interested parties the ability to defend their
interest in sunset reviews in violation of Article 6.2 (see section VII.A.2);

• The US statutory requirements that the Commis sion determine whether injury would be likely
to continue or recur “within a reasonably fore seeable time” (19 USC. § 1675a(a)(1)) and that
the Commission “shall consider that the effects of revocation or termination may not be
imminent, but may manifest themselves only over a longer period of time” (19 USC. §
1675a(a)(5)) are inconsistent with Articles 3.1, 3.2, 3.4, 3.5, 3.7, 3.8, 11.1 and 11.3 of the Anti-
Dumping Agreement. By adding the phrase “within a reasonably foreseeable time” and
including a time frame that is not “imminent” but rather relates to “a longer period of time,”
US law requires (“shall consider ”) speculation and an open ended analysis for possible future
injury. The Commission’s market forecasting and sheer speculation is inconsistent with WTO
requirements to assess whether termination of an anti-dumping duty order would be likely to
lead to recurrence of injury at the time of term ination – not at some distant, undefined point in

46United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from
Argentina: Request for Establishment of a Panel by Argentina, WT/DS268/2 (3 April 2003).
47 On 1 September, the Director General communicated the composition of the panel to Argentina and
the United States. However, one of the individuals nominated to serve on the panel informed the Secretariat that
she was a citizen of the United States. The Secretariat then met with the parties, and it was agreed that another
individual should be appointed in her place.
48 United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from
Argentina: Constitution of the Panel Established at the Request of Argentina, WT/DS268/3 (9 September 2003).

the future. Speculation about market conditions several years into the future is inconsistent
with the requirements of Article 11.3 and Ar ticle 3 of the Anti-Dumping Agreement (see
section VIII.C.1);

• The principal obligation of Article 11.3 of th e Anti-Dumping Agreement requires that anti-
dumping measures be terminated after five y ears of imposition, unless the authorities satisfy
the requirements for maintenance of the measur e. The Department’s consistent practice in
sunset review cases demonstrates an irrefutabl e presumption employed by the Department that
dumping is likely to continue or recur in the event of termination. This presumption violates
Article 11.3. To date there have been 217 su nset reviews conducted by the Department where
the domestic industry has participated in the sunset proceeding. The Statement of
Administrative Action (“SAA” ) and the Department’s Sunset Policy Bulletin establish the
irrefutable presumption employed by the Departme nt in these cases. In 100 per cent of the
Department’s sunset reviews in which the dome stic industry participated the Department
determined that dumping would be likely to continue or recur.
49 In these cases no respondent
has been able to overcome the criteria prescribed by the SAA and the Sunset Policy Bulletin
for termination50 (see section VII.B.);

B. THE DEPARTMENT’S SUNSET REVIEW WAS INCONSISTENT WITH US WTO OBLIGATIONS
• The Department’s determination to conduct an e xpedited sunset review, and its conduct of an
expedited review, on the basis that Siderca’s OCTG exports to the United States were less than
50 per cent of the total OCTG exports from Arge ntina to the United States, were inconsistent
with the requirements of Articles 11.3, 11.4, 6. 1, 6.2, 6.8, and Annex II of the Anti-Dumping
Agreement. Notwithstanding Siderca’s full co operation and submission of a complete
substantive response consistent with the Department’s regulatory requirements, the
Department deemed Siderca’s response to be inadequate solely on the basis of import data and,
hence, denied Siderca the opportunity to defend its interest (see section VII.C.1);

• The Department’s determination to conduct an e xpedited sunset review, and its conduct of an
expedited review, were inconsistent with US obligations under the Anti-Dumping Agreement.
The Department rendered a determination of likelihood of continuation or recurrence of
dumping without any analysis, in violation of Article 11.3 of the Anti-Dumping Agreement,
which requires the authority to conduct a review in order to make a determination of whether
termination of the duty would be likely to lead to continuation or recurrence of dumping and
injury. In the absence of the requisite analysis and a determination based on positive evidence,
the anti-dumping measure on OCTG from Argentina should have been terminated (see section
VII.C.2);

• The Department’s conduct of an expedited s unset review and applic ation of the waiver
provisions to Siderca: (1) violated Article 6.1 of the Agreement because the Department
precluded the opportunity for Siderca to present evidence; (2) violated Article 6.2 because the
Department denied Siderca its ability to defend its interest; and (3) resulted in the application
of facts available in violation of the requirements of Article 6.8 (see section VII.C.3);

• The Department’s determination to conduct an expedited sunset review, and the Department’s
Sunset Determination, which incorporated the Department’s Issues and Decision
Memorandum by reference, violated Articles 12.2 and 12.2.2 of the Anti-Dumping Agreement

49 US Department of Commerce Sunset Reviews (ARG-63).
50 Id.

because the Department failed to provide public notice and explanations in sufficient detail of
its findings on all issues of fact and law (see section VII.C.4);

• The Department’s Sunset Determination was in consistent with Article 11.3 of the Anti-
Dumping Agreement because the Department failed to apply the disciplines of Article 2, failed
to conduct a prospective analysis, failed to make a determination of “likely” (or “probable”)
dumping, and failed to base its determination on positive evidence. Indeed, the Department’s
reliance on the decline in Siderca’s exports in the wake of the anti-dumping measure as the
sole basis for its likelihood determination was inconsistent with Article 11.3 of the Anti-
Dumping Agreement. In addition, the Department’s reliance on the original margin of
dumping of 1.36 per cent, calculated using th e WTO-inconsistent practice of zeroing negative
margins for purposes of its likelihood decision, as well as its reporting of that margin to the
Commission, were inconsistent with Artic le 11.3 and Article 2 of the Anti-Dumping
Agreement (see section VII.D.);

• Separate and apart from whether US anti-dump ing laws and regulations regarding sunset
reviews are deemed to establish an unlawful presumption, or are otherwise found to be
consistent per se with US WTO obligations, and irrespective of whether the SAA and Sunset
Policy Bulletin are “measures” that can be subject to challenge, the data drawn from the
Department’s sunset review determinations demonstrate that the Department failed to
administer in an impartial and reasonable manner US anti-dumpin g laws, regulations,
decisions and rulings with respect to the Department’s conduct of sunset reviews of anti-
dumping duty orders, in violation of Article X:3(a) of the GATT 1994 (see section VII.E.).

C. T
HE COMMISSION’S SUNSET REVIEW WAS INCONSISTENT WITH US WTO OBLIGATIONS
• The Commission’s Sunset Determination that te rmination of the duty would be likely to lead
to continuation or recurrence of injury was inco nsistent with Article 11.3 of the Anti-Dumping
Agreement because the Commission’s standard for determining likely injury was inconsistent
with Article 11.3. The Commission applied a much lower standard for determining the
likelihood of injury than that which is required by Article 11.3 (see section VIII.A);

• The Commission’s Sunset Determination violated Ar ticles 3.1, 3.2, 3.4, 3.5, and 11.3 of the
Anti-Dumping Agreement because the Commission did not conduct an objective examination
of the record or base its determination on positive evidence. The Commission’s conclusions
regarding the likely volume of imports, the like ly price effects, and the likely impact of
imports on the domestic industry can in no way be considered to be objective when those
conclusions are viewed in light of a neutral examination of the info rmation on the record.
Moreover, the purported bases relied on by the Commission in support of its likely injury
finding simply do not constitute positive evid ence as required by Article 3.1 of the Anti-
Dumping Agreement (see sections VIII.B.1-3);

• In assessing the likelihood of continuation or recu rrence of injury to the domestic industry, the
Commission failed to evaluate all the relevant economic factors and indices having a bearing
on the state of the industry, including those enumerated in Article 3.4 of Anti-Dumping
Agreement, thereby violating that provision. The Commission also failed to satisfy the
causation requirements of Article 3.5 (see sections VIII.B.3 and 4);

• The Commission’s application of 19 USC. § 1675a(a)(1) and 19 USC. § 1675a(a)(5) in the
sunset review of OCTG from Argentina was incons istent with Articles 3.1, 3.2, 3.4, 3.5, 3.7,
3.8, 11.1 and 11.3 of the Anti-Dumping Agreement. By applying the standard “within a
reasonably foreseeable time” (19 USC. § 1675a(a)(1)) and using a time frame that is not

“imminent” but rather relates to “a longer pe riod of time” (19 USC. § 1675a(a)(5)), the
Commission speculated and conducted an open-ended analysis for possible future injury. The
Commission’s market forecasting and sheer speculation was inconsistent with WTO
requirements to assess whether termination of an anti-dumping duty order would be likely to
lead to recurrence of injury at the time of term ination – not at some distant, undefined point in
the future. Speculation about market conditions several years into the future was inconsistent
with the requirements of Articles 11.1, 11.3, 3.1, 3.2, 3.4, 3.5, 3.7, and 3.8 of the Anti-
Dumping Agreement (see section VIII.C.2);

• The Commission’s application of a cumulative in jury analysis of OCTG imports from Korea,
Italy, Japan, Mexico, and Argentina to dete rmine whether termination of the anti-dumping
duty on Argentine OCTG imports would be likely to lead to continuation or recurrence of
injury was inconsistent with Article 11.3 of the Anti-Dumping Agreement, which precludes
the use of a cumulative injury an alysis in sunset reviews. Alternatively, if cumulation is
permitted in sunset reviews, the Commission’s decision to cumulate in the instant case violated
Article 3.3 of the Anti-Dumping Agreement by fa iling to comply with th e explicit restrictions
on cumulation set forth therein. In addition, the Commission’s decision to cumulate was
inconsistent with the likely standard of Artic le 11.3 and with the evidentiary standards of
Article 3, as interpreted by the Appellate Body in Steel from Germany (see sections VIII.D, E,
and F).

D. CONSEQUENTIAL VIOLATIONS OF THE ANTI-DUMPING AGREEMENT, THE GATT 1994, AND
THE WTO AGREEMENT
• Because the United States violated its obligati ons under the Anti-Dumping Agreement, it also
violated the provisions of Article VI of the GATT 1994, Articles 1 and 18 of the Anti-
Dumping Agreement, and Article XVI:4 of the WTO Agreement (see section IX).

V. OVERVIEW OF US SUNSET REVIEW LAW
A. S
UNSET REVIEWS UNDER US LAW
1. Introduction
42. Following the Uruguay Round, US anti-dumping law was amended to provide for five-year
“sunset” reviews of anti-dumping orders. 51 Among other amendments to the Tariff Act of 1930, the
Uruguay Round Agreements Act (“URAA”) establishe d a mechanism for the automatic review of
certain anti-dumping duty orders, suspended anti- dumping duty investigations, and countervailing
duty orders.

43. As with the administration of US trade remedy laws genera lly, and the conduct of anti-
dumping and countervailing duty investigations, the responsibility for the conduct of sunset reviews is
bifurcated between the Department and the Commission. The Department determines whether
“revocation” of an an ti-dumping or counterva iling duty order, or termination of a suspended
investigation, would be likely to lead to continuation or recurrence of dumping or of a countervailable
subsidy. The Commission is required to determine whether revocation of an anti-dumping or
countervailing duty order, or termination of a susp ended investigation, would be likely to lead to
continuation or recurrence of injury.

44. Under US law, sunset reviews are initiated auto matically, rather than following substantiation
by the authorities, or based upon a request by an interested party. The regulations implementing the

51See 19 USC. § 1675(c)(ARG-1); 19 USC. § 1675a (ARG-1).

URAA provide for two kinds of sunset reviews: (i) “Expedited Review” and (ii) “Full Review.”
52 As
described below, in certain situations US law mandates a finding of likely dumping without a review.

2. Procedures for determining the type of sunset review conducted: Expedited review or
full review
45. Whether a domestic interested party has requested a review, as well as considerations
concerning the content and “adequacy” of the interested parties’ required submissions, dictate which
type of “review”
53 the Department and the Commission will conduct.

46. Within 15 days from the notice of initiatio n of the sunset review, the Department’s
regulations require domestic interested parties to file a notice of intent to participate in the sunset
review.54 If no domestic interested party expresses a de sire to participate, the Department will issue a
final determination revoking the order within 90 days. 55 However, if any domestic interested party
indicates an intent to participate, the Department will conduct a review. Submissions by respondent
interested parties to the notice of initiation of the sunset review that are deemed to be “inadequate”
trigger expedited reviews. If both sides submit “adequate” responses, the Department conducts a full
review.

47. In determining whether responses are “adequa te,” US law draws a sharp distinction between
domestic and respondent parties. Domestic intere sted parties will normally be considered to have
provided an adequate response if the Department determines that at least one domestic interested
party files a “complete substantive response.” 56 On the other hand, respondent interested parties are
normally considered to have provided an adequate response only if “complete substantive responses”
are filed by those accounting for more than 50 per cent of total exports of the subject merchandise
from that country (on a volume or value basis) to the United States over the five calendar years
preceding the initiation notice. 57 If the Department determines that a respondent interested party has
not satisfied its 50 per cent threshold it will norm ally conduct an expedited sunset review based on
“facts available,” without considering information submitted by such interested party and without
further investigation.
58

48. Within 30 days from the notice of initiation, all interested parties must file a complete
substantive response to the Department’s notice of initiation of the sunset review. 59 Respondent
parties, however, are required to report substantially more information than domestic parties.60

52 See 19 USC. §§ 1675(c)(3)-(5)(ARG-1).
53 Argentina’s description of US law is not intended to suggest that Argentina concedes that the
Department does in all circumstances conduct a “review” and make a “determination” as required by
Article 11.3 of the Anti-Dumping Agreement.
54 19 C.F.R. § 351.218(d)(ARG-3).
5519 USC. § 1675(c)(3)(A) provides that “[i]f no [domestic producer] interested party responds to the
notice of initiation under this subsection, the administering authority shall issue a final determination, within
90 days after the initiation of a review, revoking the order . . . .” (ARG-1).
5619 C.F.R. § 351.218(e)(1)(i)(A)(ARG-3).
5719 C.F.R. § 351.218(e)(1)(ii)(A)(ARG-3).
5819 C.F.R. § 351.218(e)(1)(ii)(C)(2)(ARG-3).
5919 C.F.R. §§ 351.218(d)(3)(i)(ARG-3). 19 C.F.R. § 351.218(d)(3)(ii)(A)-(I) sets forth the required
information that must be filed by all interested parties and the additional information that must be filed by
respondent interested parties in order for a response to be deemed complete. All parties are required to submit
contact information, statement of intent, and indication of willingness to participate, statement regarding the
likely effects of revocation, and any factual arguments regarding historical dumping margins or import volumes.
60 See 19 C.F.R. §§ 351.218(d)(3)(iii)(A)-(E)(ARG-3). The information burden imposed on respondent
parties – a burden not shared by US parties – includes the respondent parties’ weighted-averaged dumping rates,
the volume and value of the exporter’s shipments for the last five years, the volume and value of the exporter’s

3. Effect of conduct of expedited sunset review
49. The Department conducts an expedited review if a respondent interested party’s substantive
response is “inadequate,” or deemed by the Depa rtment to be “inadequate” based solely on the
percentage of the company’s US exports irrespective of the amount of information actually provided
by the defendant. 19 USC. § 1675(c)(3)(B) provid es that “if interested parties provide inadequate
responses to a notice of initiation, the administering authority, within 120 days after the initiation of
the review, or the Commission, within 150 days after such initiation, may issue, without further
investigation, a final determination based on the facts available . . . .”

4. Effect of a “waiver” determination by the Department in a sunset review
50. The US statute affords parties the option of not participating in the proceedings before both
the Department and the Commission. As indicated by the express terms in the provision, 19 USC. §
1675(c)(4)(A) pertains only to respondent interested parties:

An interested party described in section [ 1677(9)(A) or (B)] of this title may elect not
to participate in a review conducted by th e [Department] under this subsection and to
participate only in the review conducted by the Commission.
51. In addition to an “elective waiver” provi ded for by statute, the Department sometimes
employs a “deemed waiver” in practice. The “deemed waiver” rule also pertains only to respondent
interested parties. US parties are not similarly exposed to the jeopardy of a deemed waiver. The
effect of a waiver is clear:

In a review in which an interested party waives its participation pursuant to this
paragraph, the administering authority shall conclude that revocation of the order or
termination of the investigation would be lik ely to lead to continuation or recurrence
of dumping or a countervailable subsidy (as the case may be) with respect to that
interested party.
61
52. As noted, the statutory language is mandatory; the Department “shall” determine likely
dumping if it deems a respondent interested party to have waived its participation, whether by failing
to submit a response or by failing to have exports to the United States in the amount of 50 per cent or
more of the total exports of subject merchandise to the United States.62

53. In addition to the statutory waiver provisions , the Department’s regulations equate “waiver of
participation in a sunset review before the Departme nt” with “the failure by a respondent interested
party to file a complete substantive response to a notice of initiation.”63

5. Implementing US Uruguay Round obligations: The Statement of Administrative Action
(“SAA”)
54. The US Statement of Administrative Action, by its own terms, provides the authoritative
statement on how the United States will implem ent its obligations under the WTO Agreements,
including the GATT 1994 and the Anti-Dumping Agreement:

shipments in the year preceding the dumping investigation, the percentage of the respondent’s total exports to
the United States, and the volume and value of the exporter’s shipments for the two most recent fiscal quarters.
61 19 USC. § 1675(c)(4)(B)(ARG-1)(emphasis added).
62 19 C.F.R. § 351.218(d)(2)(iii) and 19 C.F.R. § 351.218(e)(1)(ii)(A)(ARG-3).
63 19 C.F.R. § 351.218(d)(2)(iii)(ARG-3).

[The SAA] represents an authoritative e xpression by the Administration concerning
its views regarding the interpretation and application of the Uruguay Round
agreements, both for purposes of US intern ational obligations and domestic law.
Furthermore, the Administration understands that it is the expectation of the Congress
that future Administrations will obser ve and apply the interpretation and
commitments set out in this Statement. Moreover, since this Statement will be
approved by the Congress at the time it implements the Uruguay Round agreements,
the interpretation of those agreements incl udes in this statement carry particular
authority.
64
55. US courts have recognized the unique status of the SAA in the legislative scheme. For
instance, in Micron Technology Corp., Inc. v. United States,65 the Federal Circuit based its decision on
a reading of both the language of the statute and the SAA. 66 While there is nothing unusual about a
court looking to the legislative hist ory of a statutory provision to assist in its interpretation, the court
in Micron evaluated the plain meaning of both the stat ute and the SAA, in a side-by-side exercise. 67
Indeed, the Court stated that “[t]he SAA, of course, is more than mere legislative history.” 68 T h e
Court also cited to the US law that provides that the SAA “‘shall be regarded as an authoritative
expression by the United States concerning the inte rpretation and application of the Uruguay Round
Agreements and this Act in any judicial procee ding in which a question arises concerning such
interpretation or application’.”69 Significantly, the Court interpreted the statute based on the mandate
of the SAA, and held that the meaning and effect of the statutory provision had changed,
notwithstanding statements in the House and Senate reports that the legislation did not change US law
on the point.
70

56. WTO panels such as the one in United States – Measures Treating Export Restraints as
Subsidies, have recognized this point, noting that:

The United States acknowledges “the stat us of the SAA as an authoritative
interpretive tool” . . . . While the United St ates indicates that the SAA cannot change
the meaning of, or override, the statute to which it relates, “[a]s a general proposition,
[] in terms of legislative history, the SAA ranks supreme” . . . . It is clear to us that
the [Uruguay Round Agreements Act] grants to the SAA unique legal status as an
authoritative interpretation of the URAA, which the US courts must take into account.
The text of the SAA confirms this by ch aracterising itself as “an authoritative
interpretation . . . both fo r purposes of US international obligations and domestic
law.” The SAA went through an approval process in Congress, and was in fact
approved by Congress at the same time as the URAA. The United States itself
acknowledges that ‘there is no disagreement between the parties about the status of
the SAA as an authoritative interpretive tool.” Finally, it is clear that no other form
of legislative history has higher authority than the SAA with regard to the meaning of
the statute. The United States indicates th at “If, hypothetically, on a particular

64US Statement of Administrative Action , accompanying the Uruguay Round Agreements Act, Pub. L.
No. 103-465, 108 stat. 4809 (1994), at 656, reprinted in 1994 USC.C.A.N. 4040 (“SAA”)(ARG-5).
65 243 F.3d 1301 (Fed. Cir. 2001)(ARG-7).
66 Id. at 1308.
67 Id. at 1308-09.
68 Id. at 1309.
69 Id.
70 Id. at 1310.

interpretive issue, the SAA said ‘X’ and some other document of legislative history
(e.g., a committee report) said ‘Y,’ the interpretation should be ‘X.’”71
57. The unique authority of the SAA has also been repeatedly recognized by courts in the United
States.72

6. The Department of Commerce Sunset Policy Bulletin
58. The Department’s Sunset Policy Bulletin73 adopts the standards of the SAA and states that the
Department “normally” will determine that dumping is likely to continue or recur where:

- dumping continued at any level above de minimis [(i.e., above 0.5 per cent)]
after the issuance of the order or the suspension agreement, as applicable;
- imports of the subject merchandise ceased after the issuance of the order or
the suspension agreement, as applicable, or
- dumping was eliminated after the issuance of the order or the suspension
agreement, as applicable, and import volumes for the subject merchandise
declined significantly.74
- In analyzing whether import volumes remained steady or increased, the
Department normally will consider companies’ relative market share.75
7. The Department’s “likelihood” determination
59. The SAA outlines the many instances in whic h the Department will determine that dumping
is likely to continue or recur.76 The SAA does not contain guidance as to particular circumstances that

71 Panel Report, United States – Measures Treating Export Restraints as Subsidies , WT/DS194/R,
adopted 23 August 2001, paras. 8.97-8.98 (“US Exports Restraints”) (footnotes omitted).
72 See e.g., SKF USA, Inc. v. United States , 263 F.3d 1369, 1373 n.3 (Fed. Cir. 2001) (“The SAA, of
course, is more than mere legislative history. Congre ss has instructed that ‘[t]he statement of administrative
action approved by the Congress . . . shall be regarded as an authoritative expression by the United States
concerning the interpretation and application of the Uruguay Round Agreements and this Act in any judicial
proceeding in which a question arises concerning such interpretation or application.’”); Micron Technology,
Inc., 243 F.3d at 1305 n.3 (ARG-7)(“[T]he SAA is ‘an authoritative expression by the United States concerning
the interpretation and application of the Uruguay Round Agreements and this Act in any judicial proceeding in
which a question arises concerning such interpretation or application.’”); AK Steel Corp. v. United States, 226
F.3d 1361, 1368 (Fed. Cir. 2000)(ARG-6) (“When confronted with a change in statutory language, we would
normally assume Congress intended to effect some change in the meaning of the statute. . . . Here, however,
the SAA prevents us from making such an assumption an d we have revised our opinion primarily to address the
authoritative weight given the SAA in the statute.”)(citations omitted); Allied Tube and Conduit Corp. v. United
States, 127 F. Supp. 2d 207, 217 (CIT 2000)(ARG-12) (“The Federal Circuit and this Court have recognized the
controlling nature of the SAA and have used it as an authoritative guide in interpreting the Uruguay Round
Agreements.”); Micron Technology, Inc. v. United States, 40 F. Supp. 2d 481, 484-485 (CIT 1999)(ARG-
11)(“In addition, the Court finds that, contrary to Micron's argument, the relevant language from the SAA
should not be dismissed as mere legislative history. As Commerce notes, Congress expressly approved the SAA
as the authoritative expression governing application of the URAA in judicial proceedings.”).
73 Policies Regarding the Conduct of Five-Year (“Sunset”) Reviews, 63 Fed. Reg. 18,871 (Dep’t
Comm., 1998)(“Sunset Policy Bulletin”)(ARG-35).
74 Id. at 18,872.
75 Id. at 18,873.
76 SAA at 889-890 (ARG-5).

would warrant the Department finding that dumping is not
 likely to continue or recur in a sunset
review.

60. As noted above, the Department is required by statute to conduct a review to determine
whether revocation of the anti-dumping duty order would be likely to lead to continuation or
recurrence of dumping.77

61. However, the making of such a determination is highly circumscribed by the SAA. The SAA
states that:

The determination called for in these types of [sunset] reviews is inherently predictive
and speculative. There may be more than one likely outcome following revocation or
termination. The possibility of other likely outcomes does not mean that a
determination that revocation or termination is likely to lead to continuation or
recurrence of dumping or countervailable subsidies, or injury, is erroneous, as long as
the determination of likelihood of continuation or recurrence is reasonable in light of
the facts of the case. In such situations, the order or suspended investigation will be
continued.
78
62. In the context of sunset reviews, the SAA outlines the many instances in which, under US
law, the Department will determine that dumping is likely to continue or recur:

[The Bill] establishes standards for dete rmining the likelihood of continuation or
recurrence of dumping. Under section 752(c)(1), Commerce will examine the
relationship between dumping margins, or the absence of margins, and the volume of
imports of the subject merchandise, comparing the periods before and after the
issuance of an order or the acceptance of a suspension agreement. For example,
declining import volumes accompanied by the continued existence of dumping
margins after the issuance of an order may provide a strong indication that, absent an
order, dumping would be likely to continue, because the evidence would indicate that
the exporter needs to dump to sell at pre-order volumes. . . .
The Administration believes that existence of dumping margins after the order, or the
cessation of imports after the order , is highly probative of the likelihood of
continuation or recurrence of dumping. If companies continue to dump with the
discipline of an order in place, it is reasonable to assume that dumping would
continue if the discipline were removed. . . .
[T]he existence of zero or de minimis dumping margins at any time while the order
was in effect shall not in itself require Commerce to determine that there is no
likelihood of continuation or recurrence of dumping. Exporters may have ceased
dumping because of the existence of an orde r or suspension agreement. Therefore,

77 19 USC. § 1675(c)(1)(ARG-1). 19 USC. §§1675a(c)(1)(A)-(B)(ARG-1) set forth additional
requirements with respect to the Department’s likelihood determination, including that in conducting the sunset
review, the Department “shall consider”:

the weighted average dumping margins determined in the investigation and subsequent
reviews, and

the volume of imports of the subject merchandise for the period before and the period after the
issuance of the anti-dumping duty order or acceptance of the suspension agreement.

78 SAA at 883 (ARG-5)(emphasis added).

the present absence of dumping is not necessarily indicative of how exporters would
behave in the absence of the order or agreement.79
8. The Commission’s “likelihood” determination
63. As noted above, the Commission is requir ed to conduct a review to determine whether
revocation of the anti-dumping duty order would be likely to lead to continuation or recurrence of
injury. 19 USC. §§1675a(a)(1)-(7) establish a dditional requirements with respect to the
Commission’s sunset review.

64. Subsections 1675a(a)(1)-(3) direct the Commission to consider whether any improvement in
the state of the domestic industry is due to the an ti-dumping duty order and whether the industry is
vulnerable to injury if the order were revoked. In addition, the statute directs the Commission to
consider additional factors, including whether the exporting country has actual or potential excess
capacity; whether the exporter has existing inventorie s of subject merchandise or likely increases in
subject merchandise; whether the exporter has the pote ntial for product-shifting; whether the exporter
faces barriers in importing the subject merchandis e to third countries; whether underselling by the
exporter is likely, compared to domestic products; and whether imports would depress or suppress the
price of like domestic goods.

65. Subsections 1675a(4)-(5) direct the Commissi on to consider certain factors bearing on the
impact on the domestic industry.
80

66. Importantly, however, the SAA provides sp ecific guidance on how the Commission should
evaluate the factors identified in the statute in the conduct of sunset review proceedings:

[T]he Commission must consider whether there has been any improvement in the
state of the domestic industry that is related to the imposition of the order or the
acceptance of a suspension agreement. The Commission should not determine that
there is no likelihood of continuation or recurrence of injury simply because the
industry has recovered after the imposition of an order or acceptance of a suspension
agreement, because one would expect that the imposition of an order or acceptance of
a suspension agreement would have some beneficial effect on the industry.
Moreover, an improvement in the state of the industry related to an order or
acceptance of a suspension agreement may suggest that the state of the industry is
likely to deteriorate if the order is revoked or the suspended investigation
terminated.
81
67. Subsection 1675a(a)(7) gives the Commission discretion to conduct a cumulative injury
analysis in sunset reviews:

For purposes of this subsection, the Commission may cumulatively assess the volume
and effect of imports of the subject merc handise from all countries with respect to
which reviews under section 1 675(b) or (c) of this title were initiated on the same
day, if such imports would be likely to compete with each other and with domestic
like products in the United States market. The Commission shall not cumulatively

79 Id. at 889-890 (emphasis added).
80 These include, but are not limited to, “(A) likely de clines in output, sales, market share, profits,
productivity, return on investments, and utilization of capacity, (B) likely negative effects on cash flow,
inventories, employment, wages, growth, ability to raise capital, and investment, and (C) likely negative effects
on the existing development and production efforts of the industry . . . .” 19 USC. §§ 1675a(4)(A)-(C)(ARG-1).
81 SAA at 884 (ARG-5)(emphasis added).

assess the volume and effects of imports of the subject merchandise in a case in
which it determines that such imports are likely to have no discernible adverse impact
on the domestic industry.
VI. STANDARD OF REVIEW, BURDEN OF PROOF, AND THE SUBSTANTIVE WTO
OBLIGATIONS AT ISSUE IN THIS DISPUTE
A. S
TANDARD OF REVIEW
68. The relevant provisions establishing the standard of review in this case are Article 11 of the
DSU and Article 17.6 of the Anti- Dumping Agreement. As the Appellate Body noted recently, “the
two provisions complement each other.”82

69. Article 11 of the DSU requires a panel to “m ake an objective assessment of the matter before
it, including an objective assessment of the facts of the case and the applicability of and conformity
with the relevant covered agreements.” Article 17.6 of the Anti-Dumping Agreement sets out a
special standard of review that complements Article 11 of the DSU.

70. Article 17.6(i) requires a panel to review th e investigating authorities’ “establishment” and
“evaluation” of the pertinent facts.
83 The Appellate Body has clarif ied the standard applicable to
factual review under the Anti-Dumping Agreement as follows:

Article 17.6(i) sets forth the approp riate standard to be applied by panels in
examining the WTO-consistency of the investigating authorities' establishment and
evaluation of the facts under other provi sions of the Anti-Dumping Agreement.
Thus, panels must assess if the establis hment of the facts by the investigating
authorities was proper and if the evaluation of those facts by those authorities was
unbiased and objective . If these broad standards have not been met, a panel must
hold the investigating authorities’ establis hment or evaluation of the facts to be
inconsistent with the Anti-Dumping Agreement.84
71. 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 Agreement.” 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.”85
72. Thus, in accordance with the guidance provide d by the Appellate Body, this Panel will need
to undertake an “active review or examination of th e pertinent facts” pertaining to the sunset review
determinations relating to OCTG from Argentina, and the decision by the US Government to continue

82 Appellate Body Report, European Communities – Anti-Dumping Duties on Imports of Cotton-Type
Bed Linen from India: Recourse to Article 21.5 of the DSU by India , WT/DS141/AB/RW, adopted
24 April 2003, para. 164 (“Bed Linen from India”).
83 See United States – Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan ,
WT/DS184/AB/R, adopted 23 August 2001, para. 55 (“Hot-Rolled Steel from Japan”).
84 Id. at para. 56.
85 Appellate Body Report, Recourse to Article 21.5, Bed Linen from India, para. 163.

the anti-dumping measure beyond the five year period prescribed by Article 11.3 of the Anti-
Dumping Agreement.

73. The second subparagraph of Article 17.6 applie s to a panel’s review of whether measures in
dispute rest upon a permissible interpretation of the Anti-Dumping Agreement.86

74. A panel’s objective assessment of whether the US measures identified by Argentina are
consistent with the Anti-Dumping Agreement and th e GATT 1994 is guided by its interpretation of
the relevant provisions of those agreements in ac cordance with customary rules of interpretation of
public international law, as codified in the Vienna Convention on the Law of Treaties .87 The general
rules of interpretation of the Vienna Convention require a panel to interpret treaty provisions in good
faith in accordance with their ordinary meaning, in their context, and in light of the treaty’s object and
purpose.88 Thus, the treaty language defines the extent of Members’ rights and obligations. One of
the corollaries of this general rule is that “interpr etation must give meaning and effect to all the terms
of a treaty. An interpreter is not free to adopt a r eading that would result in reducing whole clauses or
paragraphs of a treaty to redundancy or inutility.”89

75. Article 3.2 of the DSU reaffirms that the ro le of the WTO dispute settlement system is to
preserve the rights and obligation of Members under the covered agreements, and to “clarify the
existing provisions of those agreements in accordance with customary rules of interpretation of public
international law.” Article 17.6(ii) of the Anti-Dumping Agreement similarly provides that panels are
to interpret the relevant provisions of the Anti- Dumping Agreement “in accordance with customary
rules of interpretation of pu blic international law.” In Hot-Rolled Steel from Japan , the Appellate
Body explained that “a permissible interpretati on is one which is found to be appropriate after
application of the pertinent rules of the Vienna Convention.”90

76. In sum, under the applicable legal standa rd of review, a panel must make an objective
assessment of the legal provisions at issue and thei r applicability to the dispute. The panel must then
interpret the pertinent treaty provisions in accord ance with the customary rules of interpretation of
public international law and assess whether each m easure rests upon a permissible interpretation of
the Anti-Dumping Agreement and the GATT 1994.91

B. BURDEN OF PROOF
77. In WTO dispute settlement pr oceedings, the burden of proof re sts with the Member asserting
the particular claim or defense. As stated by the Appellate Body,

[T]he burden of proof rests upon the party, whether complaining or defending, who
asserts the affirmative of a particular claim or defence. If that party adduces evidence
sufficient to raise a presumption that what is claimed is true, the burden then shifts to

86 Appellate Body Report, Hot-Rolled Steel from Japan, para. 60.
87 Id. (referencing the Vienna Convention on the Law of Treaties, adopted 22 May 1969, 1155
U.N.T.S. 331)(“ Vienna Convention ”)). See Appellate Body Report , United States – Gasoline , at 16-17;
Appellate Body Report, Japan – Taxes on Alcoholic Beverages , WT/DS8/AB/R, WT/DS10/AB/R,
WT/DS11/AB/R, adopted 1 November 1996, at 104-06 (“ Appellate Body Report, Japanese Taxes on Alcoholic
Beverages”).
88 See Vienna Convention, Art. 31(ARG-59).
89 Appellate Body Report, United States – Gasoline, at 23.
90 Appellate Body Report, Hot-Rolled Steel from Japan, para. 60.
91 Id. at para. 62.

the other party, who will fail unless it ad duces sufficient evidence to rebut the
presumption.
92
78. In the context of this dispute, concerned w ith WTO compatibility of th e decision to continue
the definitive anti-dumping measur es applicable to OCTG from Argentina imposed by the United
States, Argentina bears the burden of presenting a prima facie case of violation of provisions of the
Anti-Dumping Agreement and the GATT 1994. A prima facie case is “one which, in the absence of
effective refutation by the defending party, requires a panel, as a matter of law, to rule in favour of the
complaining party presenting the prima facie case.”93 Thus, where Argentina presents a prima facie
case in respect of a claim, the burden then shifts to the United States to provide an “effective
refutation” of Argentina’s case.

C. S
UBSTANTIVE OBLIGATIONS AT ISSUE IN THIS DISPUTE
1. The primary obligation of Article 11.3 of the Anti-Dumping Agreement is termination of
anti-dumping measures
79. The matter before this Panel concerns the ap plication of definitive anti-dumping measures by
the United States pursuant to sunset reviews governed by Article 11.3 of the Anti-Dumping
Agreement. The Panel’s objective assessment of the matter will include an interpretation of
Article 11 of the Anti-Dumping Agreement, which provides in relevant part as follows:

Duration and Review of Anti-Dumping Duties and Price Undertakings
11.1 An anti-dumping duty shall remain in force only as long as and to the extent
necessary to counteract dumping which is causing injury.
…
11.3 Notwithstanding the provisions of paragraphs 1 and 2, any definitive anti-
dumping duty shall be terminated on a date not later than five years from its
imposition (or from the date of the most recent review under paragraph 2 if that
review has covered both dumping and injury, or under this paragraph), unless the
authorities determine, in a review initiated before that date on their own initiative or
upon a duly substantiated request made by or on behalf of the domestic industry
within a reasonable period of time prior to that date, that the expiry of the duty would
be likely to lead to continuation or recurrence of dumping and injury. The duty may
remain in force pending the outcome of such a review.
11.4 The provisions of Article 6 regarding evidence and procedure shall apply to
any review carried out under this Article. Any such review shall be carried out
expeditiously and shall normally be concluded within 12 months of the date of
initiation of the review.
80. Thus, the Anti-Dumping Agreement makes clear that anti-dumping duties are to be limited in
scope and duration, and that a continuation of th e order beyond five years requires strict compliance

92 Appellate Body Report, United States – Measure Affecting Imports of Woven Wool Shirts and
Blouses from India, WT/DS33/AB/R and Corr.1, adopted 23 May 1997, p. 14 (“Woven Shirts from India”).
93 Panel Report, Thailand – Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy
Steel and H-Beams from Poland , WT/DS122/AB/R, adopted 5 April 2001, para. 7.49 (“ H-Beams from
Poland”)(citing Appellate Body Report, European Communities – Measures Concerning Meat and Meat
Products, adopted 13 February 1998, WT/DS26 and 48/AB/R, para. 104 (“EC – Hormones”).

with the conditions set out in the Agreement. The panel in Pipe Fittings from Brazil , recently
recognized this point, stating that:

By virtue of Article 11.1 of the Anti-Dumping Agreement, an anti-dumping duty may
only continue to be imposed if it rema ins “necessary” to counteract injurious
dumping. Article 11.1 contains a general, unambiguous and mandatory requirement
that anti-dumping duties “shall remain in force only as long as and to the extent
necessary” to counteract injurious dumping . It furnishes the basis for the review
procedures contained in Article 11.2 (and 11.3) by stating a general and overarching
principle, the modalities of which are set forth in paragraph 2 (and 3) of that Article.94
81. The Appellate Body put the matter succinctly:

Article 11.1 of the Anti-Dumping Agreement is categorical that “[a]n anti-dumping
duty shall remain in force only as long as and to the extent ne cessary to counteract
dumping which is causing injury.”95
82. Similarly, in Steel from Germany , the Appellate Body interpreted Article 21.3 of the SCM
Agreement, which parallels Article 11.3 of the Anti-Dumping Agreement. 96 Article 21.3 of the SCM
Agreement and Article 11.3 of the Anti-Dumping Agreement are essentially identical provisions, save
the subject matter coverage.

83. The Appellate Body in Steel from Germany explained that the primary obligation of
Article 21.3 is termination of the measure after five years. Continuation of the measure is the
exception, and only if the requirements of the Agreement are strictly complied with:

[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 would ‘be likely to lead to continuation or
recurrence of subsidization and injury.’97
84. The Appellate Body affirmed the essence of the Article 21.3 obli gation: “Article 21.3
prohibits the continuation of countervailing duties un less a review is undertaken and the prescribed
determination, based on adequate evidence, is made.” 98 The Appellate Body emphasized that
continuation of a measure is permitted only when the specified conditions of Article 21.3 are satisfied:

Article 21.3 imposes an exp licit temporal limit on the ma intenance of countervailing
duties. For countervailing duties that have been in place for five years, the terms of
Article 21.3 require their termination unless certain specified conditions are met.
Specifically, a Member is permitted not to terminate such duties only if it conducts a
review and, in that review, determines that the prescribed conditions for the continued

94 Panel Report, Pipe Fittings from Brazil, para. 7.113.
95 Appellate Body Report, European Communities – Anti-Dumping Duties on Malleable Cast Iron
Tube or Pipe Fittings from Brazil , WT/DS219/AB/R, adopted 18 August 2003, para. 81 (“ Pipe Fittings from
Brazil”) (emphasis added).
96 Appellate Body Report, Steel from Germany, paras. 58-118.
98 Id. at para. 117.

application of the duty are satisfied. The pr escribed conditions are “that the expiry of
the duty would be likely to lead to contin uation or recurrence of subsidization and
injury”. If, in a sunset review, a Member makes an affirmative determination that
these conditions are satisfied, it may continue to apply countervailing duties beyond
the five-year period set forth in Article 21.3 . If it does not conduct a sunset review,
or, having conducted such a review, it does not make such a positive determination,
the duties must be terminated.
99
85. The Appellate Body also explained that the obligation contained in Article 21.3 must be
interpreted in its immediate context of Article 21, which places several conditions on the continuation
of countervailing duty measures:

Turning to the immediate context of Article 21.3, we observe the title to Article 21 of
the SCM Agreement reads ‘Duration and Review of Countervailing Duties and
Undertakings.’ The first paragraph of Article 21 stipulates that a countervailing duty
‘shall remain in force only as long as and to the extent necessary to counteract
subsidization which is causing injury.’ We see this as a general rule that, after the
imposition of a countervailing duty, the continued application of that duty is subject
to certain disciplines. Thes e disciplines relate to the duration of the countervailing
duty (‘only as long as necessary’), its magnitude (‘only to the extent necessary’), and
its purpose (‘to counteract subsidization which is causing injury’). Thus, the general
rule of Article 21.1 underlines the require ment for periodic review of countervailing
duties and highlights the factors that must inform such reviews.
100
86. This interpretation is directly relevant to the interpretation of the Anti-Dumping Agreement.
Article 11 of the Anti-Dumping Agreement, in parallel to that of Article 21 of the SCM Agreement, is
entitled “Duration and Review of An tidumping Duties and Price Undertakings.” The first paragraph
of Article 11 similarly stipulates that an anti-dump ing duty “shall remain in force only as long as and
to the extent necessary to counteract dumping which is causing injury.”

87. Thus, like the SCM Agreement, the Anti-Dump ing Agreement also incorporates disciplines
that prescribe clear limitations regarding the durat ion of the anti-dumping duty (“only as long as
necessary”), its magnitude (“only to the extent necessary”), and its purpose (”to counteract dumping
which is causing injury”).

88. To paraphrase the Appellate Body’s interpre tation of the SCM Agreement, the Anti-Dumping
Agreement is “aimed at striking a balance between the right to impose [anti-dumping] duties to
[counteract dumping] that is causing injury, and the obligations that Members must respect in order to
do so.” As Argentina sets out below, the United St ates ignored this balance, and failed to uphold its
obligations under the Anti-Dumping Agreement in its Sunset Determination on OCTG from
Argentina.

2. The plain and ordinary meaning of the term “likely” in Article 11.3 is “probable.”
Hence, an anti-dumping duty can be maintained only if it is probable that dumping and
injury would continue or recur if the anti-dumping measure were terminated
89. Pursuant to the customary rules of interpretati on of public international law, as codified under
the Vienna Convention , a treaty shall be interpreted in good faith in accordance with the ordinary
meaning of the terms of the treaty in their context, and in the light of its object and purpose. This

99 Id. at para. 63 (emphasis in original).
100 Id. at para. 70 (emphasis in original).

interpretive approach applies to all WTO provisions, including those under Article 11 of the Anti-
Dumping Agreement.

90. Article 11.3 provides that an existing order sh all be terminated unless “the expiry of the duty
would be likely to lead to continuation or recu rrence of dumping and injury.” The panel in DRAMS
From Korea commented on the ordinary meaning of the wo rd “likely” as used in Article 11.3, noting
“that ‘likelihood’ or ‘likely’ carries with it the ordinary meaning of ‘probable.’”101 Both the ordinary
meaning of the term “likely” and the context of Article 11.3 require the application of a “probability”
standard to the question of whether injury will conti nue or recur. In other words, the continuation or
recurrence of dumping and injury must be more likely than not.102

91. 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.’”
103 The United States declared this interpretation in
discussing the parallel provision of Article 11.3 in the SCM Agreement. The US statement thus bears
directly on the interpretation of Article 11.3 of the Anti-Dumping Agreement.

92. Both US and WTO jurisprudence make clear that “likely” does not have the same meaning as
“possible.” 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.
As will be demonstrated below, the “likely” standards applied by the Department and the Commission
conflict with the ordinary meaning of Article 11.3.

3. The obligations in Articles 2, 3, 6 and 12 of the Anti-Dumping Agreement are applicable
to reviews conducted under Article 11.3
94. In clarifying WTO Members’ rights and obligations under Article 11.3, the Vienna
Convention rules of treaty interpretation provide that a panel must give the terms of the provision their
ordinary meaning and must interpret them in their context – both the immediate context (i.e., the other
paragraphs of Article 11) and the broader context ( i.e., the other provisions of the Anti-Dumping
Agreement, and the WTO Agreements as a whole), in accordance with the object and purpose of the
specific provisions.

95. The terms of Article 11 mand ate compliance with the following provisions of the Anti-
Dumping Agreement:

101 Panel Report, United States – Anti-Dumping Duty on Dynamic Random Access Semiconductors
(DRAMs) of One Megabit or Above from Korea, WT/DS99/R, circulated 7 November 2000, para. 6.48 n.494
(“DRAMs from Korea”).
102 Similarly, the only decisions of the US Court of International Trade (two involving the same case)
to address the question are in accord that the term “likely” in the US anti-dumping statute as used in the sunset
review context should be given its ordinary meaning of “probable.” See Usinor Industeel, S.A. v. United States,
No. 01-00006, slip. op. 02-39 at 13 (CIT 29 April 2002) (“Usinor I”)(ARG-14); Usinor Industeel, S.A. v. United
States, No. 01-00006, slip. op. 02-152 at 2 (CIT 20 December 2002) (“ Usinor II)(ARG-16); and Nippon Steel
Corp. v. United States, No. 01-00103, slip. op. 02-153 at 7-8 (CIT 24 December 2002)(ARG-17). The grounds
for remand in Nippon Steel were essentially the same as those in the Usinor cases (i.e., the Commission failed to
apply the plain and ordinary meaning of the term “likely”).
103 Oral Statement of the United States at the First Meeting of the Panel, United States – Countervailing
Duties on Certain Corrosion-Resistant Carbon Steel Flat Products from Germany , WT/DS213 (29-
30 January 2002), para. 6.

• Article 2 (Dumping)
: Article 2.1 defines “dumping” “for the purposes of the Agreement.”
Thus, the definition of “dumping” applies for all purposes under the Anti-Dumping
Agreement, including sunset reviews under Article 11.

• Article 3 (Injury) : Article 3 of the Anti-Dumping Agreement applies to reviews conducted
under Article 11. The jurisprudence establishes that the broad scope of the definition of injury
in Article 3 (“under this agreement”) applies to “injury” for all purposes under the Agreement,
including Article 11.3. Footnote 9 to Article 3, “ Determination of Injury ,” provides “Under
this Agreement the term ‘injury’ shall, unless otherwise specified, be taken to mean material
injury to a domestic industry, threat of injury to a domestic industry or material retardation to
the establishment of such an industry and shall be interpreted in accordance with the
provisions of this Article.”104 The Appellate Body has held that “the obligations in Article 3.1
apply to all injury determinations undertaken by Members,” 105 and has reaffirmed this
proposition, stating “Article 3.1 is an overarc hing provision that sets forth a Member’s
fundamental, substantive obligation with respect to the injury determination.” 106 Given the
broad scope of the definition of injury in Artic le 3 (“under this agreement”), as recognized by
the Appellate Body, Article 3 applies to “injury” under Article 11.3. Moreover, the Panel in
the recent United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant
Carbon Steel Flat Products From Japan case stated that:

Article 3 is entitled “Injury.” This tit le is linked to footnote 9 of the
Anti-Dumping Agreement, which indicates that: “[u]nder this
Agreement the term ‘injury’ shall, unless otherwise specified, be
taken to mean material injury to a domestic industry, threat of
material injury to a domestic industry or material retardation of the
establishment of such an indust ry and shall be interpreted in
accordance with the provisions of this Article.” This seems to
demonstrate that the term “injury” as it appears throughout the Anti-
Dumping Agreement – including Article 11 – is to be construed in
accordance with this footnote, unless otherwise specified. This would
seem to support the view that the provisions of Article 3 concerning
injury may be generally applic able throughout the Anti-Dumping
Agreement and are not limited in application to investigations.
Article 11 does not seem to explicitly specify otherwise in the case of
sunset reviews.
There are other textual indications that the Article 3 injury obligations apply throughout the
Agreement. For example, the use of the language “for purposes of Article VI of GATT 1994”
in Article 3.1 also suggests that, in general, the obligations in Article 3 pertaining to injury
may apply throughout the Anti-Dumping Agr eement, i.e. they are not limited to
investigations.
107

104 Emphasis added. The report of the DRAMS from Korea panel provides the following support for
this proposition: “We note that, by virtue of note 9 of the AD Agreement, the term ‘injury’ in Article 11.2 ‘shall
be interpreted in accordance with the provisions of Article 3.’” Panel Report , DRAMS from Korea , para. 6.59
n.501. The panel’s ruling in DRAMS from Korea applies equally in this case with respect to Article 11.3.
105 Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes and Sections of Iron or
Non-Alloy Steel H-Beams from Poland , WT/DS122/AB/R, adopted 5 April 2001, para. 114 (emphasis added)
(“H-Beams from Poland”).
106 Appellate Body Report, Hot-Rolled Steel from Japan, para. 192 (quoting Appellate Body Report, H-
Beams from Poland, para. 106).
107 There was not a definitive ruling from the panel on this issue, since the panel said that this was “an
issue we need not and do not decide.” Panel Report, United States – Sunset Reviews of Anti-Dumping Duties on

• Article 6 (Evidence): Article 6 of the Anti-Dumping Agre ement applies to reviews conducted
under Article 11 as mandated by the explicit te rms of Article 11.4: “The provisions of Article
6 regarding evidence and procedure shall apply to any review carried out under this Article.”
Thus, all provisions of Article 6 apply to all reviews under Article 11.

• Article 12 (Notice): Article 12 of the Anti-Dumping Ag reement applies to reviews conducted
under Article 11 because Article 12.3 provides that “[t]he provisions of A[rticle 12] shall apply
mutatis mutandis108 to the initiation and completion of revi ews pursuant to Article 11 . . . .”
Article 12.3 applies all of the Article 12 disciplines regarding notice and the need for sufficient
explanations to sunset review proceedings under Article 11.

• Article 18 (Final Provisions) : Article 18.3 of the Anti-Dumping Agreement expressly
provides that “the provisions of this Agreement shall apply to investigations, and reviews of
existing measures initiated pursuant to applications made on or after the date of entry into
force of the WTO Agreement.” (Emphasis added.) Thus, the Anti-Dumping Agreement applies
to sunset reviews of anti-dumping measures imposed prior to the entry into force of the WTO
Agreement.

96. Through these provisions the United States had an obligation to (1) terminate the anti-
dumping measure on Argentine OCTG unless, (2) it conducted a substantive review and (3) made a
determination (4) based on evidence, that (5) dumping (in accordance with the requirements of
Article 2) and (6) injury (in accordance with the requirements of Article 3 requirements) would be (7)
“likely” (the common meaning of which is “probabl e”) to continue or recur if the anti-dumping
measure were terminated.

VII. THE DEPARTMENT’S SUNSET DETERMINATION AND THE DEPARTMENT’S
DETERMINATION TO CONDUCT AN EXPEDITED SUNSET REVIEW WERE
INCONSISTENT WITH THE ANTI-DUMPING AGREEMENT AND GATT 1994
97. While previous WTO panels and the Appellate Body have considered challenges to the
Department’s sunset review proceedings, this case is unique in several respects, including that it is the
first dispute in which a WTO panel is being asked to review the application of the sunset review
“waiver” and “expedited review” provisions of US sunset law and the Department’s regulations.

98. The key facts relevant to the Department’s Sunset Determination are recalled briefly as
follows. Siderca had not shipped any OCTG to the United States for consumption during the relevant
period for purposes of the sunset review. Siderc a stated this to the Department. (Siderca made
similar “no-shipment” representations during each of the relevant administrative review periods. The
Department conducted “non-shipment” reviews and in each instance verified Siderca’s claims that the
company had not exported OCTG to the United States.) The Department’s import data, however,
showed the existence of some Argentine OCTG imports to the United States. Because Siderca’s total
exports of OCTG to the United States (zero exports) were less than 50 per cent of total OCTG exports

Corrosion-Resistant Carbon Steel Flat Products from Japan , WT/DS244, circulated 14 August 2003,
paras. 7.99-7.101 (“Sunset Review of Steel from Japan”).
108 Black’s Law Dictionary provides the following definition of mutatis mutandis : “With necessary
changes in points of detail, meaning that matters or things are generally the same, but to be altered when
necessary, as to names, offices and the like.” In other words, mutatis mutandis provides for changes in detail
while preserving substance.

from Argentina to the United States, however, the Department determined Siderca’s response to be
“inadequate.”
109

99. The Department then determined that be cause Siderca’s response was deemed to be
“inadequate,” the company was similarly deemed to have “waived” its right to participate in the
sunset review.110 The Department deemed Argentina to have waived its right to participate because of
the “inadequate” response to the initiation notice. 111

100. It is difficult to discern the actual basis for the Department’s determination – whether the
Department relied on the “waiver” provision, 19 USC. § 1675(c)(4)(B)(“In a review in which an
interested party waives its participation pursuant to this paragraph, the administering authority shall
conclude that revocation of the order. . . . would be likely to lead to continuation or recurrence of
dumping . . .”), or the “facts available” provision , 19 USC. § 1675(c)(3)(B) (“If interested parties
provide inadequate responses to a notice of initia tion, the administering authority . . . may issue,
without further investigation, a final determination based on the facts available . . . ”). The
Department’s determination purports to rely on both provisions.
112 However, as explained below, the
basis for the simultaneous application of these provisions to a single respondent is unclear.

101. These provisions are mutually exclusive: a respond ent either waives its right to participate, or
it attempts to participate and the Department determ ines that the application of facts available is
necessary. Argentina submits that the application of either provision to the sunset review of OCTG
from Argentina violates the requirements of Article 11.3 of the Anti-Dumping Agreement.

109 Oil Country Tubular Goods From Argentina: Adequacy of Respondent Interested Party Response
to the Notice of Initiation, A-357-810 (Dep’t Comm., 22 August 2000)(ARG-50).
110 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.”).
111 The Department’s Issues and Decision Memorandum states:

As discussed in section II.A.3 of the Sunset Policy Bulletin , the SAA at 890, and the House
Report at 63-64, if companies continue dumping with the discipline of an order in place, the
Department may reasonably infer that dumping would continue if the discipline were
removed. We note that there have been above de minimis margins for the investigated
companies throughout the history of the orders , except for one company covered by the
order on Japan. Consistent with section 752(c) of the Act, the Department also considered the
volume of imports before and after issuance of the order. According to the import statistics
provided by domestic interested parties and, as confirmed by Census IM 145 reports statistics,
imports of subject merchandise decreased in 1995 and, since 1996, have significantly
decreased from their pre-order levels. Based on this analysis, the Department finds that the
existence of dumping margins after the issuance of the orders is highly probative of the
likelihood of continuation or recurrence of dumping. Therefore, given that dumping
continued after the issuance of the orders, average imports continued at levels far below
pre-order levels from 1995 to 1999, and resp ondent interested parties waived their right
to participate in these reviews or failed to submit adequate substa ntive responses, we
determine that dumping is likely to continue if the orders were revoked.

Issues and Decision Memorandum at 5 (ARG-51) (emphasis added).

112 This case is not the only case in which it is difficult to determine the basis for the Department’s
determination. Indeed, in 166 sunset reviews, the Department cited to both the “waiver” provision, 19 USC. §
1675(c)(4), and the “facts available” provision, 19 USC. § 1675(c)(3)(B) – two mutually exclusive provisions –
as the basis for its determination. See US Department of Commerce Sunset Reviews (ARG-63).

102. The operation of the waiver provision in this case precluded the Department from conducting
a review and making the determination required by Article 11.3 of the Anti-Dumping Agreement.
Instead, the waiver provision mandates a finding of likely dumping without any analysis.
Accordingly, Argentina believes that the US waiver provisions and the Department’s application of
those provisions violate US obligations under the Anti-Dumping Agreement as such and as applied in
this case.

103. Whether the Department based its determination on the “waiver” provision – 19 USC. §
1675(c)(4) – or the “facts available” provision – 19 USC. § 1675(c)(3)(B) – the Department failed in
either event to conduct a “review” and make a “determination” that expiry of the duty would be likely
to lead to continuation or recurrence of dumping, as required by Article 11.3 of the Anti-Dumping
Agreement. Furthermore, regardless of whether th e waiver provision was actually applied in this
case, the provision can be challenged as such. 19 USC. § 1675(c)(4)(B) mandates that the
Department forego a “review” and automatically find that dumping would be likely to continue or
recur when a company is deemed to have waived its right to participate in the sunset review. Such a
finding is required without a review and an analysis under the standard leading to a “determination”
as required by Article 11.3 of the Anti-Dumping Agreement.

104. Section A below describes Argentina’s ch allenge to the waiver provisions as being
inconsistent “as such” with Article 11.3, and Articles 6.1 and 6.2 of the Anti-Dumping Agreement.

105. Section B sets forth Argentina’s argu ment that US law, the SAA, and the Sunset Policy
Bulletin establish an irrefutable presumption that dumping is likely to occur, and that this irrefutable
presumption is demonstrated by the Department’s consistent sunset review practice.

106. Section C below describes Argentina’s cha llenge to the Department’s determination to
conduct, and its conduct of, an expedited sunset re view of OCTG from Argentina, and application of
the waiver provisions and/or facts available provisions in violation of Articles 11, 2, 6, and 12 of the
Anti-Dumping Agreement.

107. Section D sets forth the Argentina’s challenge to the Department’s likelihood determination,
as applied.

108. Section E demonstrates that, in the alternative, the United States is in violation of GATT
Article X:3(a).

A. T
HE US SUNSET REVIEW WAIVER PROVISIONS, 19 USC. § 1675(C)(4) AND 19 C.F.R. §
351.218(D)(2)(III), ARE INCONSISTENT WITH THE ANTI-DUMPING AGREEMENT: WHEN A
RESPONDENT INTERESTED PARTY IS DEEMED TO HAVE “WAIVED” ITS RIGHT TO PARTICIPATE
IN A SUNSET REVIEW , THE WAIVER PROVISIONS PRECLUDE THE DEPARTMENT FROM
CONDUCTING A “REVIEW” AND MAKING A “DETERMINATION” WHETHER EXPIRY OF THE DUTY
WOULD BE LIKELY TO LEAD TO CONTINUATION OR RECURRENCE OF DUMPING , AND INSTEAD
MANDATE A FINDING OF LIKELY DUMPING WITHOUT ANY ANALYSIS
1. The US Sunset Review Waiver Provisions, as such, violate the Anti-Dumping Agreement
because they prohibit the Department fr om conducting a “review” and making a
“determination” as required by Article 11.3. Instead, these provisions mandate that the
Department render a “likely” dumping de termination without any substantive,
prospective analysis of the facts existing at the time of the sunset review in order to
make the determination required by Article 11.3
109. The US sunset review waiver provisions, as such, violate the Anti-Dumping Agreement
because, pursuant to these provisions, the Depart ment neither conducts a “review” nor makes a

“determination” that expiry of the duty would be likely to lead to continuation or recurrence of
dumping, as required by Article 11.3. Instead, th ese provisions mandate that the Department render a
“likely” dumping determination without any analysis of the facts existing at the time of the sunset
review in violation of Article 11.3.

110. The use of the word “determine” in Article 11.3 indicates that the drafters contemplated
positive action by the authority to satisfy the obli gation set out in the provision. The plain and
ordinary meaning of “determine” is “to establish or ascertain definitely, as after consideration,
investigation, or calculation.”
113 The use of the term “determine” in Article 11.3 thus requires that the
authority take action in order to reach a conclusion. Indeed, there is nothing in the meaning of the
word “determine” or structure of Article 11.3 th at contemplates passivity on the part of the
administering authority in satisfying the obligation. This is consistent with the meaning ascribed by
the Section 301 panel to the term “determination,” albeit in a slightly different context, that of
interpreting Article 23.2(a) of th e DSU. The panel noted that some of the relevant dictionary
meanings of the word “determination" included “t he action of coming to a decision.” The panel
added that:

Without there being a need precisely to define what a “determination” in the sense of
Article 23.2(a) is, we consider that – give n its ordinary meaning – a “determination”
implies a high degree of firmness or immutability, i.e. a more or less final decision by
a Member in respect of the WTO consistency of a measure taken by another
Member.
114
111. The use of the term “determine” in Article 11.3 thus requires that the authority take action in
order to reach a conclusion. Passivity on the part of the administering authority cannot satisfy the
obligation under Article 11.3. The requirement of Article 11.3 is unambiguous: anti-dumping
measures must be terminated after five years, unless a “review” is conducted and the authority
“determines” that termination would be likely to lead to continuation or recurrence of dumping and
injury. As stated by the Sunset Review of Steel from Japan panel:

The text of Article 11.3 contains an obligation “to determine” likelihood of
continuation or recurrence of dumping. The requirement to make a “determination”
concerning likelihood therefore precludes an investigating authority from simply
assuming that likelihood exists. In order to continue the imposition of the measure
after the expiry of the five-year imposition period, it is clear that the investigating
authority has to determine, on the basis of positive evidence, that termination of the
duty is likely to lead to continuation or recurrence of dumping. An investigating
authority must have a sufficient factual basis to allow it to draw reasoned and
adequate conclusions concerning the likelihood of such continuation or recurrence.115
112. In Steel from Germany , the panel held that the “sufficien t factual basis” for the purposes of
sunset reviews “should rest on the evaluation of the evidence that it has gathered during the original
investigation, the intervening reviews and finally the sunset review.” 116 The panel further confirmed
that in sunset reviews, “an investigating authority should collect relevant facts and base its likelihood
analysis on those facts. . . . Such relevant fact s may be in the possession of either the investigating

113 The American Heritage Dictionary 388 (2d ed. 1982)(ARG-60).
114 Panel Report, United States – Sections 301-310 of the Trade Act of 1974, WT/DS152/R, adopted
27 January 2000, n.657 (“United States – Section 301”).
115 Panel Report, Sunset Review of Steel from Japan, para. 7.177.
116 Panel Report, United States – Countervailing Duties on Certain Corrosion-Resistant Carbon Steel
Flat Products from Germany, WT/DS213/R, adopted 19 December 2002, para. 8.96 (“Steel from Germany”).

authorities or the interested parties.”117 Even though the authorities make a prospective assessment in
sunset reviews, their determination nevertheless “mus t itself have an adequate basis in fact” at the
time of the review.118

113. In Steel from Germany, the panel stated that “one of the components of the likelihood analysis
in a sunset review under Article 21.3 is an assess ment of the likely rate of subsidization” (or under
Article 11.3 of the Anti-Dumping Agreement, the rate of dumping).119 The panel held as follows:
The facts necessary to assess the likelihood of subs idization in the event of revocation may well be
different from those which must be taken into account in an original investigation. Thus, in assessing
the likelihood of subsidiza tion in the event of revocation of the CVD, an investigating authority in a
sunset review may well consider, inter alia , the original level of subsidization, any changes in the
original subsidy programmes, any new subsidy programmes introduced after the imposition of the
original CVD, any changes in government policy, and any changes in relevant socio-economic and
political circumstances.120

114. Because the facts in the original investigation may differ from those existing at the time of the
sunset review, the investigating authority must gath er and evaluate updated facts during the sunset
review in order to make the substantive and meanin gful determination required under Article 11.3 of
the Anti-Dumping Agreement. As the panel in Steel from Germany stated:

Article 21.3 reflects the application of the ge neral rule set out in Article 21.1 – that a
CVD shall remain in place only as long as necessary – in the specific instance where
five years have elapsed since the imposition of a CVD. Article 21.2 reflects the same
general rule in a different circumstance, when a reasonable period has elapsed since
the imposition of the duty, and it is deemed necessary to review the need for the
continued imposition of the duty. We also note that one of the principal objects of the
SCM Agreement is to regulate the imposition of CVD measures. Article 21.3
effectuates that purpose by providing that after five years, a CVD should be
terminated unless the investigating authorities determine that there is a likelihood of
continuation or recurrence of subsidisation and injury.
121
115. Unless the administering authority considers a ll information presented by interested parties,
the establishment of the facts cannot be proper a nd the evaluation of the facts cannot be considered
unbiased and objective, as required by Article 17.6(i) of the Anti-Dumping Agreement.122

117 Id. at para. 8.95.
118 Id. at para. 8.96.
119 Id.
120 Id. at para. 8.96.
121 Id. at para. 8.91.
122 In Hot-Rolled Steel from Japan , the Appellate Body explained that Article 17.6(i) of the Anti-
Dumping Agreement requires panels to determine:

[F]irst, whether the investigating authorities' “ establishment of the facts was proper” and,
second, whether the authorities' “ evaluation of those facts was unbiased and
objective’”(emphasis added). Although the text of Article 17.6(i) is couched in terms of an
obligation on panels – panels “shall” make these determinations – the provision, at the same
time, in effect defines when investigating authorities can be considered to have acted
inconsistently with the Anti-Dumping Agreement in the course of their “establishment” and
“evaluation” of the relevant facts. In other words, Article 17.6(i) sets forth the appropriate
standard to be applied by panels in examining the WTO-consistency of the investigating
authorities' e stablishment and evaluation of the facts under other provisions of the Anti-
Dumping Agreement. Thus, panels must assess if the establishment of the facts by the
investigating authorities was proper and if the evaluation of those facts by those authorities

116. In order to comply with Article 11.3 of the Anti-Dumping Agreement, an investigating
authority would have to establish a “sufficient factual basis” for the determination required to be made
in sunset reviews. The investigating authorities’ de termination “should rest on the evaluation of the
evidence that it has gathered during the original in vestigation, the intervening reviews and finally the
sunset review.”
123 The investigating authorities must make a “fresh determination, based on credible
evidence.”124

117. In the case of the US waiver provisions, there simply is no “determination” or “review” and
the Article 11.3 requirements for continuation of the anti-dumping measure are not satisfied. To
paraphrase the Section 301 panel, there is no “action of coming to a decision.”

2. The US Sunset Review Waiver Provisions are inconsistent with Articles 11.3, 11.4, 6.1,
and 6.2 of the Anti-Dumping Agreement
118. The obligations of Article 6 are applicable to sunset reviews under Article 11.3 by virtue of
the cross-reference in Article 11.4 (“the provisi ons of Article 6 regarding evidence and procedure
shall apply to any review conducte d under this Article [Article 11]”). 125 In the present case, the
United States violated its obligations under Article 6, thereby consequently violating Article 11.4.

119. In European Communities – Anti-Dumping Duties on Malleable Cast Iron Tube or Pipe
Fittings from Brazil, the Appellate Body underscored “the im portance of the obligations contained in
Article 6,” of the Anti-Dumping Agreement, which it said established a “framework of procedural and
due process obligations.”126

120. Article 6.1 of the Anti-Dumping Agreement manda tes that “all interested parties in an anti-
dumping investigation shall be given . . . ample op portunity to present in writing all evidence which
they consider relevant in respect of the investig ation in question.” The Department’s regulations
regarding the “deemed waiver” of the right of a resp ondent party to participate in a sunset review
violate Article 6.1 because they foreclose the oppor tunity for interested parties to present evidence
regarding the likelihood of continuation or recurrence of dumping in order to inform the
determination that the Department must make in its sunset review. These parties hardly have an
“ample opportunity to present … evidence which they consider relevant” when the Department relies
on the waiver provisions and “deems” parties to have waived their right to participate in the review.
These provisions deny the parties any opportunity to present relevant evidence. The waiver
provisions of the Department cannot be reconciled with the obligations of the United States under
Article 6.1.

121. The waiver provisions similarly violate Artic le 6.2 of the Anti-Dumping Agreement because
it does not provide interested par ties with “a full opportunity for th e defense of their interests.”
Interested parties have no opportunity – let alone a full opportunity – to defend their interests because
the Department refuses to gather and consider info rmation that would enable it to determine whether

was unbiased and objective. If these broad standards have not been met, a panel must hold the
investigating authorities’ establishment or evaluation of the facts to be inconsistent with the
Anti-Dumping Agreement. Para. 56.
123 Panel Report, Steel from Germany, para. 8.95.
124 Appellate Body Report, Steel from Germany, para. 88.
125 The panel in Steel from Germany confirmed that “Article 12 of the [SCM] Agreement, which
governs, inter alia, the collection of evidence, is specifically incorporated into Article 21.” Panel Report , Steel
from Germany, para. 8.115.
126 Appellate Body Report, Pipe Fittings from Brazil, para. 138.

termination of an anti-dumping measure would be lik ely to lead to continuation or recurrence of
dumping.

122. Indeed, as the Panel in Sunset Review of Steel from Japan confirmed:

Articles 6.1 and 6.2 make it clear that interested parties have a broadly-defined right
to submit evidence to the investigating authority during a sunset review and are
entitled to a full opportunity for the defence of their interests.127
123. In sum, the waiver provisions violate US obligations under Article 6 of the Anti-Dumping
Agreement, by virtue of the cross-reference contai ned in Article 11.4, and therefore consequentially,
Articles 11.3 and 11.4. The waiver provisions vi olate Article 6.1 because they preclude respondent
interested parties from being able to present ev idence. The waiver provisions deny respondent
interested parties of an ability to defend their interest in sunset reviews in violation of Article 6.2.

B. THE DEPARTMENT’S SUNSET DETERMINATION IS INCONSISTENT WITH ARTICLE 11.3 OF THE
ANTI-DUMPING AGREEMENT BECAUSE IT WAS BASED ON AN IRREFUTABLE PRESUMPTION
UNDER US LAW AS SUCH THAT TERMINATION OF THE ANTI -DUMPING MEASURE WOULD BE
LIKELY TO LEAD TO CONTINUATION OR RECURRENCE OF DUMPING
1. The Department’s sunset review practice une quivocally demonstrates an irrefutable
presumption that dumping would be likely to continue or recur
124. The Department’s Sunset Determination is inconsistent with Article 11.3 of the Anti-
Dumping Agreement because it was based on an irrefutable presumption under US law that
termination of the anti-dumping measure would be lik ely to lead to continuation or recurrence of
dumping. The unlawful presumption in US law is evidenced by the consistent practice of the
Department in the conduct of sunset reviews.

125. 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, 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:

We are not persuaded that the conduct of a single sunset review can serve as
conclusive evidence of USDOC practice, and thereby, of the meaning of United
States law. This is particularly so in the absence of information as to the number of
sunset reviews that have been conducted, the methodology employed by USDOC in
other reviews, and the overall results of such reviews. . . . Accordingly, the
evidentiary foundation upon which the Eu ropean Communities sought to have the
Panel draw an inference from USDOC practice seem to us to have been a weak
one...
128
126. Argentina has undertaken a review of all of the Department’s sunset reviews in order to
provide empirical evidence in support of its claims. As of September 2003, the Department of
Commerce has 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 Argentina’s
Exhibit ARG 63, entitled, “US Department of Comme rce Sunset Reviews.” Specifically, for each
sunset proceeding, Argentina tr acked information falling under nine major categories: (1) “Title,”
(2) “Case Number,” (3) “Date,” (4) “Outcome in Sunset Reviews in Which Domestic Industry

127 Panel Report, Sunset Review of Steel from Japan, para. 7.255.
128 Appellate Body Report, Steel from Germany, para. 148 (footnote omitted).

Participated,” (5) “Domestic Industry Participation,” (6) “F oreign Interested Party Participation,”
(7) “Type of Proceeding,” (8) “Stated Basis for Like lihood Determination,” and (9) “Stated Basis for
Determination of Likely Margin.” Each of these categories is represented as a heading on the table.
129

127. For each of the sunset reviews in which the Department determined that dumping would be
likely to continue or recur, Argentina analyzed and recorded the stated basis (or bases) for the
Department’s determination, which included po tentially overlapping bases for the likelihood
determination: (a) the existence of continued dumping margins – whether from the original
investigation or an administrative review – as identified in the SAA and the Sunset Policy Bulletin ;
(b) a finding that imports ceased as identified in the SAA and the Sunset Policy Bulletin ; and (c) a
decline in the volume of imports as identified in the SAA and the Sunset Policy Bulletin.

128. The Department’s reliance on these three factors to the exclusion of the prospective analysis
required by Article 11.3 of the Anti-Dumping Agre ement is demonstrated by the Department’s
consistent practice in sunset reviews.130

129 (1) “ Title” simply refers to the title of the anti-dumping order that is the subject of the sunset
review. (2) “ Case Number” refers to the case number assigned to th e sunset review by the Department. (3)
“Date” refers to the date on which the Department issued its final results of the sunset review. (4) “ Outcome in
Sunset Reviews in Which Domestic Industry Participated ” records whether, in the sunset proceedings in
which the domestic industry participated, the Department issued a finding that dumping would be likely or not
likely to continue or recur. (5) “Domestic Industry Participation” records whether a domestic interested party:
(a) participated in the sunset review; (b) did not respond to the notice of the initiation of the sunset review; or (c)
responded to the notice of initiation, but later withdrew its participation from the sunset review. (6) “ Foreign
Interested Party Participation” records whether the foreign interested parties: (a) provided any response to the
notice of initiation of the sunset review; (b) provided an “adequate” response to the notice of initiation of the
sunset review pursuant to 19 C.F.R. § 351.218(e)(1)(ii)(A); (c) filed an affirmative statement of waiver,
declining to participate in the sunset review; or (d) filed a response to the notice of initiation of the sunset
review, but the Department considered its response to be “inadequate” by virtue of 19 C.F.R. §
351.218(e)(1)(ii)(A). (7) “Type of Proceeding”
 records whether the Departmen t: (a) revoked the order within
90 days; (b) conducted a “full” review pursuant to 19 C.F.R. § 351.218(e)(2); (c) conducted an “expedited”
review pursuant to 19 USC. § 1675(c)(3)(B) and 19 C.F.R. § 351.218(e)(1)(ii)(C)(2); or (d) issued a mandatory
likelihood determination pursuant to 19 USC. § 1675(c)(4)(B) and 19 C.F.R. § 351.218(d)(2). (Please note that
the Department frequently purports to conduct both an expedited review on the basis of the facts available and
to issue a likelihood determination pursuant to the statutory mandate. As a result, the occurrence rates of the
four different types of sunset proceedings do not add up to 100 per cent in Exhibit ARG 63, as would be
expected. (8) “ Stated Basis for Likelihood Determination
” records, for the sunset reviews in which the
Department determined that dumping would be likely to continue or recur, the stated basis (or bases) for its
determination. There are four potentially overlapping bases for the likelihood determination: (a) the existence
of continued dumping margins – whether from the original investigation or an administrative review – pursuant
to the SAA and the Sunset Policy Bulletin; (b) a finding that imports ceased pursuant to the SAA and the Sunset
Policy Bulletin; and (c) a decline in the volume of imports pursuant to the SAA and the Sunset Policy Bulletin.
The table also reflects a fourth category (d), which provides for a prospective analysis as required by
Article 11.3 of the Anti-Dumping Agreement. This category has no data because, it has never been undertaken
by the Department. (9) “ Stated Basis for Determination of Likely Margin
” records for the sunset reviews in
which the Department decided to continue the order, the stated basis for the Department’s “likely margin”
calculation. The possible sources from which to derive the likely dumping margin are: (a) the original
investigation and (b) an administrative review. The table also reflects third category, (c), fresh information
gathered during the course of the sunset review (i.e., a prospective analysis), as required by Article 11.3 of the
Anti-Dumping Agreement. There are no entries for this category as well.
130 See US Department of Commerce Sunset Reviews (ARG-63). Review of the 291 sunset reviews of
anti-dumping duty orders conducted by the Department reveals the following. In 217 of these reviews, at least
one domestic interested party participated in the proceeding; the Department concluded that dumping would
likely continue or recur in all of these reviews. The Department revoked the order 74 times. In 65 of these
revocations, the domestic industry declined to participate in the proceeding, and in the remaining 9, the domestic
industry responded to the notice of initiation of the sunset review, but later withdrew from the proceeding. In

129. The results of Argentina’s analysis demonstrate the irrefutable presumption:

• In 100 per cent of the sunset reviews in which a domestic interested party participated in the
proceeding, the Department determined that dumping was likely to continue or recur;

• In 100 per cent of the revocations issued by the Department, the domestic industry either did
not participate in the sunset proceeding or subsequently withdrew from the sunset proceeding;

• In 100 per cent of the sunset reviews for whic h the Department determined that dumping was
likely to continue or recur, the Department failed to conduct a prospective analysis, as required
by Article 11.3 of the Anti-Dumping Agreement;

• In 100 per cent of the sunset reviews for whic h the Department determined that dumping was
likely to continue or recur, the Department cited the authority of the SAA and the
Department’s Sunset Policy Bulletin;

• In 100 per cent of the sunset reviews for which the Department determined that dumping was
likely to continue or recur, no respondent wa s able to overcome the irrefutable presumption
that dumping would likely continue or recur established by the SAA and the Sunset Policy
Bulletin criteria (i.e., existence of continued dumping margins, cessation of imports, or decline
in volume).

130. In 166 sunset proceedings, or well over ha lf of all sunset reviews conducted by the
Department (57.4 per cent of the total number of sunset reviews), the Department applied the waiver
provisions, which mandate that the Department “s hall conclude that revocation of the order or
termination of the investigation would be likely to le ad to continuation or recurrence of dumping.”
Such determinations cannot be defended as being objective – indeed the outcome is mandated by
statute. Respondents cannot overc ome the presumption, because the statute precludes the possibility
of any analysis in such cases.

131. Argentina also analyzed and recorded the st ated basis for the Department’s “likely margin”
determined by the Department and reported to the Commission. The possible sources the Department
used to determine the likely dumping margin are: (a) the original investigation rate and (b) an
administrative review rate. The Department never us ed fresh information gathered during the course
of the sunset review ( i.e., a prospective analysis), as required by Article 11.3 of the Anti-Dumping
Agreement.

132. The evidence once again speaks for itself:

• In 100 per cent of the sunset reviews for whic h the Department determined that dumping was
likely to continue or recur, the Department failed to calculate a current dumping margin
derived from fresh information gathered during th e course of the sunset review (i.e., perform a
prospective analysis), as required by Article 11.3 of the Anti-Dumping Agreement; and

17 of the sunset reviews in which the Department concluded that dumping would likely continue or recur, the
Department declined to allow a foreign interested party to participate, despite the fact that the party submitted a
response to the notice of initiation. In 77 per cent of the sunset proceedings in which the domestic industry
participated (167 reviews), the Department indicated that it issued a finding that dumping would likely continue
or recur pursuant to the statutory mandate of 19 USC. § 1675(c)(4)(B)(“waiver provision”). In 88 per cent of
the sunset proceedings in which the domestic industry participated (191 reviews), the Department stated that it
conducted an expedited review on the basis of the facts available. The Department undertook a full review in
less than 10 per cent of the total sunset reviews it has conducted.

• In 100 per cent of the sunset reviews for whic h the Department determined that dumping was
likely to continue or recur, the Department relie d on the margin from the original investigation
or a previous administrative review as the basis for its determination of the “likely” margin.

133. In sum, to date there have been 217 suns et reviews conducted by the Department where the
domestic industry has participated in the Department’s sunset proceeding.
131 In 100 per cent of these
cases the Department determined that dumpin g would be likely to continue or recur. 132 Furthermore,
as the basis for its likelihood determination in th ese cases, the Department referenced the SAA and
Sunset Policy Bulletin in 100 per cent of these cases, and cited at least one of the three criteria
prescribed by the SAA and Sunset Policy Bulletin .133 Similarly, the Department relied on the SAA
and the Sunset Policy Bulletin in 100 per cent of the cases in determining the likely margin to prevail.

134. In the four cases (less than 2 per cent) wher e the Department did not cite one of the three
SAA/Sunset Policy Bulletin criteria as the sole basis for its likely dumping determination, it seemingly
did so only because none of the criteria were present – and therefore the anti-dumping measure should
have been terminated in those cases. 134 Nevertheless, in each of those instances, the Department
instead found “good cause” to consider other factors pursuant to 19 USC. § 1675a(c)(2) and 19 C.F.R.
§ 351.218(e)(2)(iii), and found alternative grounds for its determination that dumping would be likely
to continue or recur.
135 Consequently, it is clear from a review of the Department’s sunset practice
that the Department, in fact, does not conduct a review and make a determination of whether expiry of
the duty would be likely to lead to continuation or recurrence of dumping as required by Article 11.3.

135. A particularly egregious example of the Depart ment’s ritualistic and mechanical recitation of
the SAA and Sunset Policy Bulletin criteria to the exclusion of s ubstantive analysis of the actual
likelihood of continuation or recurrence of dumping is the case involving Industrial Nitrocellulose
from Yugoslavia. In that sunset review, the Department conducted an expedited review based on the
failure of the respondents to submit a response in the proceeding. Following its consistent practice,
the Department determined that revocation of the anti-dumping duty order would be likely to lead to
continuation or recurrence of dumping at th e margins found in the original investigation.
136 The
Department made no other factual inquiry during the review.

136. In the Commission’s sunset review in the same case, however, the Commission determined
that injury was not likely to continue or recur (despite the fact that the respondents also did not
participate in the Commission’s sunset review).
137 The Commission relied on the fact that the sole

131 For purposes of this discussion, Argentina does not consider the instances in which no domestic
interested party participated in the sunset proceeding to constitite a “review” because, in such circumstance, the
Department will simply terminate the anti-dumping order within ninety days of the notice of initiation without
conducting a sunset review. See 19 USC. § 1675(c)(3)(B)(ARG-1); 19 C.F.R. § 315.218(d)(1)(iii)(B)(ARG-3).
132 US Department of Commerce Sunset Reviews (ARG-63).
133 Id.
134 Issues and Decision Memorandum for the Sunset Review of the AD Order on Gray Portland Cement
and Cement Clinker from Venezuela (Dep’t Comm., 18 February 2000)(prelim. results) at 3-5 (ARG-47); Issues
and Decision Memorandum for the Sunset Review of the AD Order on Uranium from Russia (Dep’t Comm.,
27 June 2000)(final results) at 15-17 (ARG-48); Issues and Decision Memorandum for the Sunset Review of the
AD Order on Uranium from Uzbekistan (Dep’t Comm., 27 June 2000)(final results) at 9-11 (ARG-49); Sugar
and Syrups from Canada , 64 Fed. Reg. 48,362, 48,363-64 (Dep ’t Comm. 1999)(final results sunset
reviews)(ARG-40).
135 Id.
136 Industrial Nitrocellulose from Yugoslavia, 64 Fed. Reg. 57,852, 57,853-54 (Dep’t Comm.
1999)(final results sunset review)(ARG-42).
137 Industrial Nitrocellulose from Brazil, China, France, Germany, Japan, Korea, the United Kingdom,
and Yugoslavia, USITC Pub. 3342, Inv. Nos. 731-TA-96 and 439-445 (August 2000) at 11 (ARG-53).

Yugoslavian producer/exporter was no longer capable of exporting to the United States because the
company’s sole production facility was destroyed as a result of military action, and US trade sanctions
prohibited imports into the United States:

The record of these reviews indicates that the Yugoslav producer’s facilities were
destroyed or severely damaged as a result of military action and that the United States
has continuing sanctions against imports from Serbia . . . . We find, given the
destruction of the only known INC production facility in Yugoslavia and the lack of
any indication in the record of these reviews that Yugoslav INC production and
exports to the United States are likely to re sume in the reasonably foreseeable future,
that INC imports from Yugoslavia would be likely to have no discernible adverse
impact on the domestic industry.138
137. Accordingly, it is clear to Argentina that when the Sunset Policy Bulletin states that the
Department “normally”139 will find likely dumping when any one of the three criteria (continued
dumping margins; cessation of imports; or decline in import volume) are present, this more accurately
means that the Department will use any one of the three basic criteria 140 in order to justify its results-
oriented likelihood conclusion. At the same time, however, it is clear that where none of the SAA and
Sunset Policy Bulletin criteria can be met in order to make a finding of likely dumping, the
Department will nonetheless consider alternative information in orde r to justify a finding of likely
dumping. Thus, because it is the Department’s cons istent practice to employ in its sunset reviews an
irrefutable presumption of likely dumping, the United St ates is acting inconsistently with Article 11.3
of the Anti-Dumping Agreement.

2. The Statutory Provisions, 19 USC. §§ 167 5(c) and 1675a(c), implementing the US
obligation under Article 11.3, cannot be in terpreted independently from the further
instruction provided by the SAA and Sunset Policy Bulletin . Taken together, the US
Sunset Statutory Provisions, the SAA, and the Sunset Policy Bulletin establish an
irrefutable presumption that is inconsistent with Article 11.3 of the Anti-Dumping
Agreement
138. In deciding whether dumping would likely continue or recur upon termination of an anti-
dumping duty order, the Department’s determination is governed by 19 USC. §§ 1675(c) and
1675a(c), as well as the further inst ruction provided by the SAA and the Sunset Policy Bulletin. The
statutory provisions, 19 USC. §§ 1675(c) and 1675a(c), implementing the US obligation under
Article 11.3, cannot be interpreted independently from the further instruction provided by the SAA
and Sunset Policy Bulletin . Taken together, the US sunset statutory provisions, the SAA, and the
Sunset Policy Bulletin prescribe a standard that is inconsiste nt with Article 11.3 of the Anti-Dumping
Agreement.

139. Methodologies and practice that prescribe a standard can be subject to WTO challenge. In
United States – Countervailing Measures Concerning Certain Products from the European

138 Id.
139 The Sunset Policy Bulletin states that “the Department normally will determine that revocation of
an anti-dumping order or termination of a suspended dumping investigation is likely to lead to continuation or
recurrence of dumping where [any one of the three prescribed situations is found].” Sunset Policy Bulletin at
18,872 (ARG-35).
140 The three criteria are “(a) dumping continued at any level above de minimis after the issuance of the
order or the suspension agreement, as applicable; (b) imports of the subject merchandise ceased after issuance of
the order or suspension agreement, as applicable; or (c) dumping was eliminated after the issuance of the order
or the suspension agreement, as applicable, and import volumes for the subject merchandise declined
significantly.” Id.

Communities (“United States – CVDs on EC Products ”),
141 the Appellate Body upheld the Panel’s
finding that a certain US practice, “the same pers on methodology, was inconsistent with the SCM
Agreement,”142 both as such and as applied with respect to administrative and sunset reviews
conducted under Articles 21.2 and 21.3, respectively. As a result, the Appellate Body recommended
that the United States bring its administrative pract ice into conformity with its obligations under the
SCM Agreement.143 The Appellate Body also found that the administrative practice was inconsistent
with sunset review rules under Article 21.3 of the SCM Agreement.144

140. The administrative practice found to be WTO-inconsistent in United States – CVDs on EC
Products is similar in a key respect to the Department’s sunset review procedures and consistent
administrative practice at issue in OCTG from Argentin a. The Department’s consistent sunset review
practice, in combination with guidance from the SAA and the Sunset Policy Bulletin, is also contrary
to the obligation to conduct a “review” and ma ke a “determination” that is based on positive
information.

141. As noted above, the SAA provides the authoritative statement on how the United States will
implement its obligations under the WTO Agreemen ts, including the Anti-Dumping Agreement and
the GATT 1994.
145 Both US courts 146 and WTO panels have recognized this point. For example, the
WTO panel in US Export Restraints, stated the following regarding the SAA:

It is clear to us that the [Uruguay Round Agreements Act] grants to the SAA unique
legal status as an authoritative interpretation of the URAA, which the US courts must
take into account. The text of the SAA confirms this by characterising itself as “an
authoritative interpretation . . . both for pu rposes of US international obligations and
domestic law.”
 147
142. By outlining the instances in which the Department should determine that dumping is likely
to continue or recur, the SAA clarifies the standard the Department will apply in making its likelihood
decision pursuant to 19 USC. §§ 1675(c) and 1675a(c). The SAA states:

[19 USC. § 1675a(c)] establishes standards for determining the likelihood of
continuation or recurrence of dumping. Under [§ 1675(c)(1)], Commerce will
examine the relationship between dumping margins, or the absence of margins, and
the volume of imports of the subject merchandise, comparing the periods before and
after the issuance of an order or the acceptance of a suspension agreement. For

141 WT/DS212/AB/R, adopted on 8 January 2003.
142 Id. at para. 151 (emphasis in original).
143 Id. at para. 162.
144 Id. at para. 150.
145 “[The SAA] represents an authoritative expression by the Administration concerning its views
regarding the interpretation and application of the Uruguay Round agreements, both for purposes of US
international obligations and domestic law. Furthermore, the Administration understands that it is the
expectation of the Congress that future Administrations will observe and apply the interpretation and
commitments set out in this Statement. Moreover, since this Statement will be approved by the Congress at the
time it implements the Uruguay Round agreements, the interpretation of those agreements includes in this
Statement carry particular authority.” SAA at 656 (ARG-5).
146 See, e.g., SKF USA, Inc. v. United States , 263 F.3d 1369, 1373 n.3 (Fed. Cir. 2001)(ARG-8)(“The
SAA, of course, is more than mere legislative history. Congress has instructed that ‘[t]he statement of
administration actions approved by the Congress . . . shall be regarded as an authoritative expression by the
United States concerning the interpretation and application of the Uruguay Round Agreements and [the Uruguay
Round Agreements Act] in any judicial proceeding in which a question arises concerning such interpretation or
application.’”); Micron Technology, Inc. v. United States, 243 F.3d 1301, 1305 n.3 (Fed. Cir. 2001)(ARG-7).
147 Panel Report, US Export Restraints, paras. 8.97-8.98 (footnotes omitted).

example, declining import volumes acco mpanied by the continued existence of
dumping margins after the issuance of an order may provide a strong indication that,
absent an order, dumping would be likely to continue, because the evidence would
indicate that the exporter needs to dump to sell at pre-order volumes.

[E]xistence of dumping margins after the order, or the cessation of imports after the
order, is highly probative of the likel ihood of continuation or recurrence of
dumping.
148
143. In addition to the US statute and the SAA, the Sunset Policy Bulletin provides further
direction as to the methodology the Department will employ in deciding whether revocation of an
anti-dumping duty order would likely lead to continuance or recurrence of dumping. The US courts
and federal agencies view the Sunset Policy Bulletin as a distillation of, and similar in status to, the
SAA. The Department, for example, repeatedly describes the Sunset Policy Bulletin as flowing
directly from the legislative history surrounding the URAA, and, in particular, the SAA:

Drawing on the guidance provided in th e legislative history accompanying the
Uruguay Round Agreements Act (“URAA”), specifically the Statement of
Administrative Action (“the SAA”), H.R. Doc. No. 103-316, vol. 1 (1994), the House
Report, H.R. Rep. No. 103-826, pt. 1 (1994), and the Senate Report, S. Rep. No. 103-
412 (1994), the Department issued its Sunset Policy Bulletin providing guidance on
methodological and analytical issues, including the bases for likelihood
determinations.
149
144. Moreover, US courts have recognized that the Sunset Policy Bulletin is a direct distillation of
the SAA. For example, in the context of reviewing the Department’s sunset determination in a CVD
proceeding, the CIT in AG der Dillinger Huettenw erke v. United States 150 cited the Sunset Policy
Bulletin and noted that “[t]he Sunset Policy Bulletin parallels the language of the SAA.”151
With regard to the Department’s likelihoo d determination in a sunset review, the Sunset Policy
Bulletin instructs that:

[T]he Department normally will determine th at revocation of an anti-dumping order
or termination of a suspended dumping inves tigation is likely to lead to continuation
or recurrence of dumping where –
(a) dumping continued at any level above de minimis after the issuance of the order or
the suspension agreement, as applicable;
(b) imports of the subject merchandise ceased after issuance of the order or
suspension agreement, as applicable; or

148 SAA at 889-90.
149 E.g., Potassium Permanganate from the People’s Republic of China , 64 Fed. Reg. 16,907 (Dep’t
Comm. 1999)(final results sunset review)(ARG-39).
150 193 F. Supp. 2d 1339 (CIT 2002)(ARG-15a).
151 Id. at 1351-52, and n.18.

(c) dumping was eliminated after the issu ance of the order or the suspension
agreement, as applicable, and import volumes for the subject merchandise declined
significantly.
152
146. These criteria are not surprising as they are th e natural consequences of the imposition of an
anti-dumping measure. In contra st to these factors, however, Article 11.3 of the Anti-Dumping
Agreement directs that “any definitive anti-dumping duty shall be terminated on a date not later than
five years from its imposition” un less the requirements for continuation of measure are satisfied.
Article 11.3 establishes the principa l obligation that anti-dumping meas ures shall be terminated after
the requisite five-year period. 153 The United States fails to implement this obligation. As
demonstrated above, the irrefutable presumption established by the SAA and the Sunset Policy
Bulletin directs the Department to take an approach contrary to the requirements of Article 11.3.
Indeed, rather than undertake a substantive analysis of whether expiry of the duty would be likely to
lead to continuation or recurrence of dumping, th e SAA and Policy Bulletin direct the Department to
apply a simple checklist in deciding whether dumpi ng would likely continue or recur. Accordingly,
the Department considers whether there are dumping margins (whether they exist from the original
investigation or subsequent administrative review), whether imports of the subject merchandise
ceased, and whether import volumes of the subject merchandise declined. So long as the
Department finds that any one of these three basic circumstances exists, the Department will forego
analysis and simply conclude that dumping would be likely to continue or recur. Empirical evidence
demonstrates the ease of finding that at least one of these criteria is satisfied. Of the 217 sunset
reviews
154 that the Department has conducted to date, the Department found that at least one of these
three criteria was satisfied in 98.1 per cent of the cases.155

147. Consequently, the Department’s Sunset Determ ination was inconsistent with Article 11.3 of
the Anti-Dumping Agreement because it was based on an irrefutable presumption under US law that
termination of the anti-dumping measure would be lik ely to lead to continuation or recurrence of
dumping. The unlawful presumption in US law is evidenced by the consistent practice of the
Department in the conduct of sunset reviews.

C. T
HE DEPARTMENT’S DETERMINATION TO CONDUCT AND ITS CONDUCT OF AN EXPEDITED
SUNSET REVIEW OF OCTG FROM ARGENTINA, AND ITS APPLICATION OF THE WAIVER
PROVISIONS TO SIDERCA, WERE INCONSISTENT WITH ARTICLES 11, 2, 6, AND 12 OF THE ANTI-
DUMPING AGREEMENT
1. The Department’s determination to expedite the review of Argentina solely on the basis
that Siderca’s shipments to the United Stat es constituted less than 50 per cent of the
total exports from Argentina was inconsistent with the Anti-Dumping Agreement
148. In this case, the Department deemed Siderca to have provided an “inadequate” response
solely on the basis that the company’s OCTG export s to the United States were less than 50 per cent
of the total OCTG exports from Argentina during the relevant period. Accordingly, the Department
purportedly decided to conduct an expedited sunset review under US law and regulations. Argentina
contends that the decision to use the expedite d review procedures in this case precluded the

152 Sunset Policy Bulletin at 18,872 (ARG-35).
153 See Appellate Body Report, Steel from Germany, para. 88.
154 For purposes of this discussion, we do not consider the instances in which no domestic interested
party participated in the sunset proceeding to be a “review.” As explained above, in such instance, the
Department will simply terminate the anti-dumping order within ninety days of the notice of initiation without
conducting a sunset review. See 19 USC. § 1675(c)(3)(B)(ARG-1); 19 C.F.R. § 351.218(d)(1)(iii)(B)(3)(ARG-
3).
155 US Department of Commerce Sunset Reviews (ARG-63).

Department from actually conducting a “review” and making a “determination” as required by
Article 11.3. Pursuant to 19 C.F.R. § 351.218(e )(ii)(c)(2), if the Department determines that a
respondent interested party has not satisfied the 50 per cent exports threshold test, it will “normally”
conduct an expedited sunset review based on “f acts available” without considering information
submitted by such interested party and without further investigation.

149. 19 USC. § 1675(c)(3)(B) provides that “if interested parties provide inadequate responses to a
notice of initiation, the administering authority, w ithin 120 days after the initiation of the review, or
the Commission, within 150 days after such initiation, may issue, without further investigation, a final
determination based on the facts available . . . .”

150. In the Department’s determination to exped ite, it noted that “[d]uring the five-year period
from 1995 to 1999, the combined-average annual per centage of Siderca’s exports of OCTG to the
United States with respect to the total of exports of the subject merchandise to the United States was
significantly below 50 per cent.”
156 Since this fell below the 50 per cent threshold that the
Department “normally will consider to be an adequate foreign response,” the Department
recommended that Siderca’s response should be cons idered inadequate, and that an expedited review
should be conducted. The Department’s Issues and Decision Memorandum stated:

Without a substantive response from respondent interested parties in the cases of
Italy, Japan, and Korea, and an inadequate response in the case of Argentina, the
Department, pursuant to 19 CFR 351.218 (e)(1)(ii)(C), determined to conduct
expedited, 120-day reviews of these orders.157
151. The Department’s determination to expedite shows that it completely failed to conduct a
“review” and to make a “determination” as required by Article 11.3 of the Anti-Dumping Agreement.
In this sunset proceeding, Siderca was the only export er investigated in the original investigation, and
it was the only exporter for which the US industry had requested a review after imposition of the anti-
dumping order between 1995 and 1999 (see Sections I.B. and II.A., above). Yet the Department
merely assumed that its import statistics were co rrect, and that Siderca must necessarily fail the
“50 per cent threshold” test for adequacy. The Department did nothing to resolve the apparent
conflict in the data, but rather proceeded direct ly to an “expedited” review, and a “waiver”
determination. As explained above, these decisions led directly to an affirmative conclusion that
dumping would likely continue or recur, without any substantive “review” or “determination.”

152. Given the Department’s statement that it “did not receive an adequate response from
respondent interested parties” (aga in, the reference is to all of th em, without qualification), coupled
with the Department’s finding that Siderca did not submit an “adequate” response, the waiver
determination seems to have applied to all respondent parties.
 158

153. The Department’s analysis and conclusions seem to pertain to all of the respondent countries.
The Department refers to “companies ,” “imports of subject merchandise,” “orders” – all in the plural
without any other qualifying language. 159 In addition, the Department stated that “respondent
interested parties waived their right to particip ate in these reviews or failed to submit adequate

156 Oil Country Tubular Goods from Argentina: Adequacy of Respondent Interested Party Response to
the Notice of Initiation, A-357-810 (Dep’t Comm., 22 August 2000) at 2 (ARG-50).
157 Issues and Decision Memorandum at 3 (ARG-51).
158 See Issues and Decision Memorandum at 5(ARG-51)(“Therefore, given that dumping continued
after the issuance of the orders, average imports continue d at levels far below pre-order levels from 1995 to
1999, and respondent interested parties waived their right to participate in these reviews or failed to submit
adequate substantive responses, we determine that dumping is likely to continue if the orders were revoked.”).
159 Issues and Decision Memorandum at 5 (ARG-51).

substantive responses.” Then the Department refers, once again, to the failure of respondent
companies “to submit adequate substantive response s.” The Department’s discussion of Siderca’s
comments that immediately follows represents almost an afterthought that on its face did not affect
the Department’s determination “that dumping is likely to continue if the orders were revoked” for all
four countries.

154. The only reason for the Department’s additional discussion regarding the likely margin for
Siderca appears to be petitioners’ request that the Department use a higher rate than that from the
original determination. The petitioners wanted th e Department to use the petitioners’ suggested rate
from the petition.

155. As demonstrated below, the Department did not conduct a “review” or make a
“determination” as required under Article 11.3 of the Anti-Dumping Agreement. Moreover, the
Department’s determination to conduct an expedited sunset review, and its conduct of an expedited
review, solely on the basis of Siderca’s OCTG exports to the United States being less than 50 per cent
of the total OCTG exports from Argentina to th e United States, were inconsistent with the
requirements of Articles 11.3, 6, and Annex II of the Anti-Dumping Agreement. Notwithstanding
Siderca’s full cooperation and submission of a co mplete substantive response consistent with the
Department’s regulatory requirements, the Department deemed Siderca’s response to be inadequate
solely on the basis of the company’s exports and, th erefore, that Siderca waiv ed its participation.
Hence, the Department denied Siderca the opportunity to defend its interest.

2. In the Expedited Sunset Review of OCTG fr om Argentina, and the application of the
Waiver Provisions to Siderca, the Departmen t did not conduct a “review” or make a
“determination” as required under Article 11.3 of the Anti-Dumping Agreement
156. In the expedited sunset review of OCTG from Argentina, the Department’s determination of
likelihood of dumping, and the likely level of such dumping, was inconsistent with Article 11.3 and
Article 2 of the Agreement. As noted above, Artic le 11.3 requires a forward-looking analysis of the
likelihood of continuation or recurrence of dumping.

157. In order to be consistent with Articles 11.1 and 11.3, Members must ensure that anti-dumping
duties remain “in force only as long and to the extent necessary to counteract dumping which is
causing injury.” In order to fulfill this obligatio n, Members must conduct a substantive review of
current facts and make a meaningful, prospective, determination as required by the Anti-Dumping
Agreement.
160 In this case, the Department did not collect any new data to determine whether
termination would likely lead to continuation or recurrence of dumping. The Department determined
that Siderca’s response to the notice of initiation of a sunset review was inad equate because it did not
meet the 50 per cent test set out in the Department’s anti-dumping regulations. The Department
therefore conducted an expedited sunset review withou t gathering and analyzing the relevant facts, as
required by Article 11.3. In addition, the Department deemed Siderca to have waived its participation
in the sunset review, and therefore issued a statutorily mandated finding of likely dumping. Thus, the
Department did not fulfill its obligation to conduct a “review” make a “deter mination” pursuant to
Article 11.3.

158. In accordance with the mandate established by the SAA and the Sunset Policy Bulletin, during
the sunset review the Department used the rate of dumping established in the original investigation,
and did not gather or evaluate additional facts at the time of the sunset review. The conduct of the
expedited review regulation and the application of the waiver provisions thus violated Article 11.3

160 See discussion regarding reviews under the SCM Agreement in Appellate Body Report, United
States – Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Steel Products
Originating in the United Kingdom, WT/DS138/AB/R, adopted 7 June 2002, para. 53 (“Lead from UK”).

because the Department did not establish a “sufficient factual basis” for its determination in the sunset
reviews. The Department did not rest its determination “on the evaluation of the evidence that it ha[d]
gathered during the original investigation, the intervening reviews and finally the sunset review.” 161
In fact, the Department did not conduct an administrative review, and denied, by virtue of the waiver,
Siderca’s right to participate in the sunset review . The Department further violated Article 11.3
because it merely used the rate established in original investigations, rather than making a “fresh
determination, based on credible evidence.” 162 An investigating authority must have a “sufficient
factual basis” to allow it to draw “reasoned and adequate conclusions” concerning the likelihood of
continuation or recurrence of dumping.163

159. The Department did not use Si derca’s recent sales or cost data to calculate an up-to-date and
accurate anti-dumping margin. Instead, the Department used only findings from the original
investigation to “determine” whether termination of the order would likely l ead to a continuation or
recurrence of dumping.

160. The reasoning of the Appellate Body in Steel from Germany provides authoritative guidance
as to the nature of a sunset review where the rate of dumping at the time of the sunset review is very
low: “[t]here must be persuasive evidence that the revocation of the duty would nevertheless lead to
injury to the domestic industry. Mere reliance by the authorities on the injury determination made in
the original investigation will not be sufficient.”
164 Indeed, on the contrary, Article 11.3 of the Anti-
Dumping Agreement requires investigating authorities to determine 165 whether “the expiry of the duty
would be likely to lead to continuation or recurrence of dumping and injury.”

161. In Steel from Germany , the panel held that a “sufficient factual basis” for the purposes of
sunset reviews “should rest on the evaluation of the evidence that it has gathered during the original
investigation, the intervening reviews and finally the sunset review.” 166 The panel further confirmed
that in sunset reviews, “an investigating authority should collect relevant facts and base its likelihood
analysis on those facts . . . . Such relevant fact s may be in the possession of either the investigating
authorities or the interested parties.” 167 Even though the authorities must make a prospective
assessment, their determination “must itself have an adequate basis in fact” 168 at the time of the
review.

162. The panel stated in Steel from Germany that “one of the components of the likelihood analysis
in a sunset review under Article 21.3 is an assessmen t of the likely rate of subsidization” – or under
Article 11.3 of the Anti-Dumping Agreement, the rate of dumping. 169 In Steel from Germany , the
panel held as follows:

The facts necessary to assess the likelihood of subsidization in the event of revocation
may well be different from those which must be taken into account in an original
investigation. Thus, in as sessing the likelihood of subsidization in the event of
revocation of the CVD, an investigating authority in a sunset review may well
consider, inter alia , the original level of subsidization, any changes in the original
subsidy programmes, any new subsidy programmes introduced after the imposition of

161 Panel Report, Steel from Germany, para. 8.95.
162 Appellate Body Report, Steel from Germany, para. 88.
163 Panel Report, Sunset Review of Steel from Japan, para. 7.177.
164 Appellate Body Report, Steel from Germany, para. 88 (emphasis added).
165 See discussion in section VII.A.1 above.
166 Panel Report, Steel from Germany, para. 8.95.
167 Id. at para. 8.115.
168 Id. at para. 8.96.
169 Id.

the original CVD, any changes in government policy, and any changes in relevant
socio-economic and political circumstances.
170
163. As noted above, because the facts and circumstances in the original investigation may differ
from those existing at the time of the sunset re view, the investigating authority must gather and
evaluate updated facts and current information du ring the sunset review in order to make the
substantive and meaningful determination required under Article 11.3 of the Anti-Dumping
Agreement. The Appellate Body explained the obligations related to sunset provisions (albeit in the
context of the SCM Agreement):

Article 21.3 reflects the application of the ge neral rule set out in Article 21.1 – that a
CVD shall remain in place only as long as necessary – in the specific instance where
five years have elapsed since the imposition of a CVD. Article 21.2 reflects the same
general rule in a different circumstance, when a reasonable period has elapsed since
the imposition of the duty, and it is deemed necessary to review the need for the
continued imposition of the duty. We also note that one of the principal objects of the
SCM Agreement is to regula te the imposition of CVD measures. Article 21.3
effectuates that purpose by providing that after five years, a CVD should be
terminated unless the investigating authorities determine that there is a likelihood of
continuation or recurrence of subsidisation and injury.
171
164. The Department’s determination to conduct an expedited sunset review, its conduct of an
expedited review, and the application of the waiver pr ovisions to Siderca, were inconsistent with US
obligations under the Anti-Dumping Agreement. The Department rendered a determination of
likelihood of continuation or recurrence of dumping w ithout any analysis, in violation of Article 11.3
of the Anti-Dumping Agreement, which requires the au thority to conduct a review in order to make a
determination of whether termination of the duty would be likely to lead to continuation or recurrence
of dumping and injury. In the absence of the requ isite analysis and a determination based on positive
evidence, the anti-dumping measure on OCTG from Argentina should have been terminated.

165. Argentina recalls the Appellate Body’s statement in Steel from Germany : “If [a WTO
Member] does not conduct a sunset review, or, having conducted such a review, it does not make such
a positive determination, the duties must be terminated.”172

3. The Department’s Expedite d Sunset Review and the application of the Waiver
Provisions to Siderca were inconsistent with US obligations under Articles 11 and 6
166. Article 6.1 of the Anti-Dumping Agreement manda tes that “all interested parties in an anti-
dumping investigation shall be given . . . ample op portunity to present in writing all evidence which
they consider relevant in respect of the investigation in question.”

167. The conduct of the expedited review and the application of the waiver provisions to Siderca,
in the sunset review of OCTG from Argentina violated Article 6.1 because it prevented Siderca from
presenting evidence for meaningful consideration by the Department regarding the likelihood of
continuation or recurrence of dumping in order to inform its determination under Article 11.3. The
Department acknowledged that Siderca both filed a complete substantive response to the notice to
initiate a sunset review, and notifie d its willingness to participate fully in the instant sunset review.
173

170 Id.
171 Id. at para. 8.91.
172Appellate Body Report, Steel from Germany, para. 63.
173 Oil Country Tubular Goods from Argentina: Adequacy of Respondent Interested Party Response to
the Notice of Initiation, A-357-810 (Dep’t Comm., 22 August 2000)(ARG-50).

Nevertheless, the Department ignored the information presented by Siderca. Thus, the company
hardly had an “ample opportunity to present . . . ev idence which [it] consider[ed] relevant” when the
Department deemed Siderca to have waived its right to participate at all.

168. The conduct of the expedited review and the application of the waiver provisions to Siderca in
the sunset review of OCTG from Argentina also violated Article 6.2, because Siderca did not have a
full opportunity to defend its interests. In particular, Siderca could not defend its interests because the
Department deemed Siderca to have waived its right to participate.

169. Moreover, when the margin of dumping is small – as in the case when the margin is 1.36
per cent – the investigating authority must gather and evaluate “persuasive evidence” in order to
justify a determination that the revocation of the duty would lead to injury to the domestic industry,
and “mere reliance” by the authorities on determinations made in the original investigation will not be
sufficient.
174 The Department’s conduct of an expedited review and its application of the waiver
provisions violated both aspects of this standard. First, the Department did not collect any evidence –
to say nothing of “persuasive evidence” – that woul d justify a determination (ultimately, made by the
Commission) that the revocation of the duty would nevertheless lead to injury to the domestic
industry. Second, instead of conducting a fresh determination based on credible evidence, the
Department did exactly what has been ruled not to be sufficient: it relied exclusively on the
determination made in the original investigation.

170. The drafters of the Anti-Dumping Agreement provided for the use of “facts available” as a
last resort when investigating authorities are fa ced with recalcitrant and uncooperative parties.
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 significan tly impedes the investigation.” The Department’s
conduct of an expedited sunset review for OCTG from Argentina violated Article 6.8 of the Anti-
Dumping Agreement because the Department applie d facts available based on Siderca’s alleged
failure of the Department’s “50 per cent threshold” test. In doing so, the Department acted
inconsistently with Article 6.8 and Annex II, which do not permit the use of “facts available” in such
situations. Even worse, the Department did nothing to resort to facts available in a way consistent
with the Anti-Dumping Agreement. The Department constrained its determination to some specific
facts. In the instant case, it looked for the presence of any of the three criteria prescribed in the SAA
as “highly probative” of a likelihood of continuation or recurrence of dumping, and when it found one
of them, the Department made a final determinatio n of likelihood or recurrence of dumping on the
basis of this arbitrary criterion. As a result, in the sunset determin ation of OCTG from Argentina, the
Department decided not to comply with the principa l obligation in Article 11.3 (termination of the
measure) because: (1) the Department found as a fact available that Siderca had stopped shipping to
the US market after the imposition of the 1995 anti- dumping order, which is one of the criteria cited
in the SAA as “highly probative” of a likelihood of continuation or recurrence of dumping; and (2) the
Department resorted to another fact available in the file, the 1.36 per cent dumping margin calculated
for Siderca during the 1994/95 investigation, which the Department considered to be conclusive of the
likelihood of future dumping and the extent of the future dumping.

171. In sum, the conduct of the expedited review, and the application of the waiver provisions to
Siderca in the sunset review of OCTG from Argentin a violated US obligations under Article 6 of the
Anti-Dumping Agreement, by virtue of the cross-refe rence contained in Article 11.4. The conduct of
an expedited review and the application of the wa iver provisions violated Article 6.1 because it
precluded Siderca from being able to present eviden ce. The conduct of an expedited review and the
application of the waiver provisions denied Siderca the ability to defend its interest in sunset reviews
in violation of Article 6.2. Finally, the conduct of an expedited review resu lted in the application of

174 See Appellate Body Report, Steel from Germany, para. 88 (emphasis added)(footnote omitted).

facts available in a manner inconsistent with the requirements of Article 6.8 and Annex II of the
Agreement.

4. The Department’s Determination to Ex pedite and the Department’s Sunset
Determination in the Sunset Review of OCTG from Argentina were inconsistent with
Article 12 of the Anti-Dumping Agreement
172. Article 12.3 provides that the Article 12 discip lines on notice and explanations apply to sunset
review proceedings under Article 11: “The provisions of [Article 12] shall apply mutatis mutandis to
the initiation and completion of sunset reviews pursuant to Article 11 . . . .”

173. Article 12 of the Anti-Dumping Agreement requ ires the administering authority to provide
public notice and transparent explanations of its anti-dumping determinations, including both
preliminary and final determinations in a sunset review. Specifically, the requirements for these
determinations in a sunset review are set forth in Article 12.2, which states in relevant part that
“[public] notice shall set forth, or otherwise make available through a separate report, in sufficient
detail the findings and conclusions reached on all issu es of fact and law considered material by the
investigating authorities.” Article 12.2.2 further amplifies Article 12.2:

A public notice of conclusion . . . of an investigation in the case of an affirmative
determination providing for the imposition of a definitive duty . . . shall contain, or
otherwise make available through a separate report, all relevant information on the
matters of fact and law and reasons whic h have led to the imposition of final
measures . . . . In particular, the notic e or report shall contain the information
described in subparagraph 2.1. . . .
174. The Department provided public notice of it s sunset review of OCTG from Argentina in its
Department’s Determination to Expedite, and the Department’s Sunset Determination, which
incorporated the Department’s Issues and Decision Memorandum by reference. The Department’s
notice and explanations in these documents were inconsistent with the Department’s obligations under
Articles 12.2 and 12.2.2 in several respects.

175. Because Siderca’s total exports of OCTG to the United States (zero exports) were less than
50 per cent of total OCTG exports from Argentina to the United States, the Department determined
Siderca’s response to be “inadequate.” The Depa rtment then determined that because Siderca’s
response was inadequate, the company had “waived” its right to participate in the sunset review.
175
The Department deemed Argentina to have waived its right to participate either because of an
“inadequate” response to the initiation notice.176

176. The Department’s notice violat es the requirements of Article 12.2 because it is impossible to
discern the actual basis for the Department’s determination – whether on the “waiver” provision,
19 USC. § 1675(c)(4), or the “facts available” provision, 19 USC. § 1675(c)(3)(B). The Department’s
determination purports to rely on both. As explai ned above in the introduction to Section VII, these
provisions are mutually exclusive, and both ca nnot serve as the basis for the Department’s
determination to conduct an expedited review and to make the required determination under
Article 11.3.

177. The Department’s Sunset Determination also violated Article 12.2.

175 Oil Country Tubular Goods From Argentina: Adequacy of Respondent Interested Party Response
to the Notice of Initiation, A-357-810 (Dep’t Comm., 22 August 2000)(ARG-50).
176 Issues and Decision Memorandum at 4-5 (ARG-51).

178. First, the Department’s public notice does not transparently set forth its “conclusions reached
on . . . issues of fact and law” in contravention of its obligation under Article 12.2. In particular, the
actual basis for the Department’s affirmative likelihood determination is not discernible from its
public notice. As discussed above , the Department stated in its Issues and Decision Memorandum
that it considered Siderca’s inadequate respons e to constitute a waiver of participation under
19 C.F.R. § 351.218(d)(2), indicating that it is sued a determination of likelihood pursuant to the
mandate of 19 USC. § 1675(c)(4)(B). The Issues and Decision Memorandum also states, however,
that the Department made its likelihood determinatio n on the basis of the facts available pursuant to
19 C.F.R. § 351.218(e)(1)(ii)(C). Thus, the Departme nt’s public notice does not transparently explain
whether it issued its likelihood determination pursua nt to statutory mandate or made a determination
based on the facts available. 177 Accordingly, the Department violated Article 12.2 by not clearly
setting forth the basis for its likelihood determination in the public notice.

179. Second, the public notice of the sunset review of OCTG from Argentina does not contain “all
relevant information on the matters of fact . . . whic h have led to the imposition of final measures[,]”
as required by Article 12.2.2. As discussed previously, Article 11.3 requires the Department to collect
and evaluate current information during the sunset review. In its sunset review of OCTG from
Argentina, however, the Department relied complete ly on information obtained during the original
investigation. Thus, its public notice of the conc lusion of the sunset review did not contain “all
relevant information on the matters of fact.” For example, as the f actual basis for its likely margin
determination, the Department noted in its Issues and Decision Memorandum that Siderca’s dumping
margin had not decreased over the life of the anti- dumping order. The Depa rtment, however, had not
conducted any administrative reviews of OCTG from Argentina since issuance of the order, nor did it
gather fresh information during the course of the sunset proceeding in order to calculate a current
dumping margin for Siderca. Thus, the Department did not have any positive evidence to support its
finding that Siderca’s dumping margin had not decreased. Consequently, by not including any
relevant information to support its factual dete rmination that Siderca’s dumping margin had not
decreased in its public notice, the Department acted inconsistently with its obligations under
Article 12.2.2.

180. Finally, the Department violated Article 12 .2.2 by not including in its public notice the
“information described in subparagraph 2.1.” Among other information, subparagraph 2.1 of
Article 12 requires that public notice of a final de termination in a sunset review contain “the margins
of dumping established and a full explanation of the reasons for the methodology used in the
establishment and comparison of the export price and the normal value under Article 2
[(Determination of Dumping ).]” As noted above, however, during the course of its sunset review of
OCTG from Argentina, the Department did not undert ake a fresh analysis based on updated facts of
whether Siderca was currently dumping. Instead, as the Department explained in its Issues and
Decision Memorandum , it simply relied on the dumping margin found for Siderca in the original
investigation. As a result, the Department’s public notice of conclusion of the sunset review of
OCTG from Argentina is completely devoid of any information concerning the calculation of a
dumping margin under Article 2, contrary to the United States’s obligations under Article 12.2.2.

D. ARTICLE 11.3 ESTABLISHES PARAMETERS FOR THE ARTICLE 11.3 OBLIGATION : ARTICLE 2
DISCIPLINES APPLY ; REVIEWS ARE PROSPECTIVE IN NATURE AND THUS REQUIRE FRESH
INFORMATION; DUMPING MUST BE “PROBABLE;” REVIEWS ARE SUBJECT TO THE EVIDENTIARY
REQUIREMENTS OF ARTICLE 6; AND THE LIKELY DETERMINATION MUST BE BASED ON

177 Moreover, this implausible result was not limited to the sunset review of OCTG from Argentina. In
the public notifications of the final results of 166 sunset reviews, the Department indicated that it issued both an
expedited likelihood determination on the basis of the facts available and a likelihood determination pursuant to
statutory mandate, a result that is impossible on its face. See US Department of Commerce Sunset Reviews
(ARG-63).

POSITIVE EVIDENCE . THE DEPARTMENT FAILED TO SATISFY THESE OBLIGATIONS IN ITS
LIKELIHOOD DETERMINATION AND WITH REGARD TO THE LIKELY MARGIN REPORTED TO THE
COMMISSION
181. The Department’s reliance on the 1.36 per cent anti-dumping margin established in the
original investigation back in 1995 simply ca nnot serve as a legal basis for the Department’s
determination that dumping would be likely to continue o r re cu r . In d e ed , t h a t rate is less than the
2 per cent de minimis rate of the Anti-Dumping Agreement and, therefore, would not support a
finding in a new investigation. Furthermore, the 1.36 per cent margin – calculated on the basis of the
Department’s practice of “zeroing” negative dumping margins – results in a flawed dumping margin
that cannot serve as a legal basis for the Department’s likelihood determination. Nor can the fact that
Siderca stopped shipping to the United States fo llowing the imposition of the Antidumping measure –
one of the SAA/ Sunset Policy Bulletin checklist items – be considered positive evidence of likely
dumping in the event of termination of the anti-dumping measure, as required by Article 11.3.

1. The Department’s likelihood determination is inconsistent with the Anti-Dumping
Agreement
182. Article 11.3 establishes parameters for th e obligation of WTO Members to conduct a review
and make a determination of whether expiry of the duty would be likely to lead to continuation or
recurrence of dumping after the measure has been in place five years:

- First, the rules of Article 2 apply to reviews conducted under Article 11.3
because the Article 11.3 analysis en tails a determination of whether
“dumping” is likely. Article 2 makes clear that its rules regarding
determinations of dumping are esta blished “for the purpose of [the
Antidumping] Agreement,” which includes Article 11.3.
- Second, the Article 11.3 analysis is pr ospective in nature, which means that
the determination cannot be based on stale information, but rather must be
based on “fresh” data indicative of whether future dumping would be likely
in the event of termination.
- Third, the requirement in Article 11.3 that continuation or recurrence of
dumping must be “likely” in the event of termination means that the
continuation or recurrence of dumping must be “ probable.” Hence, it is not
sufficient that dumping would be “possible.” Dumping must be more
probable than not to satisfy the Article 11.3 standard.
- Finally, in addition to the above, an y such determination under Article 11.3
must be based on positive evidence and, pursuant to Article 11.4, must satisfy
“the provisions of Article 6 regarding evidence and procedure.”
183. First, Article 2 of the Anti-Dumping Agreement establishes the rules for dumping
determinations “for the purpose of this Agreement.” Article 2 sets forth the rules for determining
whether a company is or is not dumping. Therefore, in the conduct of a review conducted under
Article 11.3, the administering authority in satisfyi ng this obligation must resort to disciplines in
Article 2.

184. Second, the analysis required by Article 11.3 is prospective in nature. Therefore, the
authorities need to rely on current information to make a prospective analysis of whether dumping
would be likely to continue or recur. Exclusive reliance on 5 year old data from an original
investigation cannot satisfy this standard. In th e expedited sunset review of OCTG from Argentina,

the Department’s determination of likelihood of dumping and the likely level of such dumping
violated Article 11.3 and Article 2 of the AD Agreement because it was based upon past information
not determinative of future dumping. In accordance with US law, the Department did not collect new
data to determine whether termina tion would likely lead to continuation or recurrence of dumping. 178
Only by first requesting and then carefully reviewing current information could the Department
reliably assess, in a WTO-c onsistent manner, the “likelihood” of future dumping and the level of any
“likely” margin if the order were terminated. The Department’s reliance on stale information
necessarily resulted in speculation as to whether or not dumping would be likely to continue or recur
were the order to be revoked.

185. As the Panel in Sunset Review of Steel from Japan observed:

Indeed, this textual difference leads us to conclude that evidence relating to the
existence (or absence) of dumping that may be examined by an investigating
authority under Article 11.3 is not limited to
 a full-blown determination of dumping
made pursuant to Article 2. That Article 2 may inform the type of information that an
investigating authority may consider releva nt for the purposes of an Article 11.3
sunset review likelihood determination does not, in our view, impose an obligation
upon an investigating authority in a sunset review that relies upon evidence relating to
dumping since the impositio n of the order to rely only upon a determination of
dumping that fully conforms to the dictates of Article 2.
By this, we do not mean to say that the Anti-Dumping Agreement is devoid of any
obligation governing the requisite nature of a sunset review likelihood determination.
The text of Article 11.3 contains an obligation “to determine” likelihood of
continuation or recurrence of dumping. The requirement to make a “determination”
concerning likelihood therefore precludes an investigating authority from simply
assuming that likelihood exists. In order to continue the imposition of the measure
after the expiry of the five-year imposition period, it is clear that the investigating
authority has to determine, on the basis of positive evidence, that termination of the
duty is likely to lead to continuation or recurrence of dumping. An investigating
authority must have a sufficient factual basis to allow it to draw reasoned and
adequate conclusions concerning the likelihood of such continuation or recurrence.179
186. Third, the ordinary meaning of the term “likely” as used in Article 11.3 is “probable.” Both
the connotative and denotative meaning of the term “likely” are the same. Blacks Law Dictionary
defines the term “likely” as “[p]robable” and “[i]n all probability.”180 Webster’s Dictionary provides
a similar definition, equating the term “likely” to something being “probable” and having a “high
probability” of occurring or being true or being “very probable.”181 Consequently, in accordance with
the evaluation required by Article 11.3, if the eviden ce indicates that dumping is unlikely – or if the
evidence is inconclusive – upon the expiry of the order, the Department cannot conclude that dumping
would be “likely.” It is not sufficient that du mping would be “possible;” dumping must be more
probable than not to satisfy the Article 11.3 standard.

178 US law provides that when the Department issues an affirmative dumping determination in a sunset
review, the Department shall provide to the Commission a calculation of the magnitude of the dumping margin
likely to prevail if the anti-dumping order is revoked. See 19 USC. § 1675a(c)(3)(ARG-1). Instead of
calculating a dumping margin based on current information, the Department referenced information from its
original determination.
179 Panel Report, Sunset Review of Steel From Japan, paras. 7.176-7.177.
180 Black’s Law Dictionary 834 (5th ed. 1979)(ARG-61)(citing Horning v. Gerlach, 139 Cal. App. 470,
34 P.2d 504, 505 and Neely v. Chicago Great Western R. Co., Mo. App., 14 S.W.2d 972, 978).
181 Webster’s New Collegiate Dictionary 660 (1979)(ARG-62).

187. Finally, Article 11.4 states that “[t]he provisions of Article 6 regarding evidence and
procedure shall apply to any review carried out under this Article.” Any determination under
Article 11.3 must be based on po sitive evidence and be consistent with the evidentiary requirements
of Article 6. As set forth above in detail, the De partment’s determination that Siderca’s response was
inadequate and therefore the company had waived its pa rticipation in the sunset review is inconsistent
with the requirements of Article 6.

188. In sum, regarding the Department’s likelihood determination, the Department cannot rely on
the 1.36 per cent anti-dumping margin established (based on the practice of zeroing) in the original
investigation as the basis for a determination that du mping would be likely to continue or recur. How
does this determination apply Article 2 disciplines? How is it the result of a prospective analysis?
How can it possibly be considered to be “likel y”? And where is the evidence to support the
Department’s determination?

2. The likely margin of dumping of 1.36 per cent determined by the Department and
reported to the Commission
189. The Department determined that if the or der were revoked, the likely dumping margin to
prevail would be 1.36 per cent. This margin was calculated by the Department in the original
investigation based on its practice of “zeroing” negative dumping margins.
182 The margin was then
reported to the Commission for purposes of the Commission’s sunset review and its likelihood
determination. The Department’s calculation of this margin violated Article 11.3 and Article 2 of the
Agreement.

190. Article 2 of the Anti-Dumping Agreement applies to reviews conducted under Article 11
because Article 2.1 defines “dumping” “for the purpo ses of the Agreement.” Thus, the definition of
the term “dumping” for the purposes of Article 11 is established under Article 2, and the authorities
conducting a sunset review are required to comply with the disciplines se t out in Article 2.
Consequently, 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.

191. In Steel from Germany , the Appellate Body ruled that in a sunset review, “in order to
establish the continuing need for countervailing dutie s, an investigating authority will have to make a
finding on subsidization, i.e., whether or not the subsidy continue s to exist. If there is no longer a
subsidy, there would no longer be any need for a countervailing duty.” 183 The Appellate Body then
went on to evaluate the existence of a subsidy under the substantive provisions of the SCM
Agreement.

192. Similarly, in order to establish in a sunset review whether a need continues to continue anti-
dumping duties, an investigating authority will have to make a finding on dumping, i.e., whether or
not subject imports continue to be dumped, and, if so at what rate. This evaluation requires an
analysis that complies with the provisions of Articl e 2. This is particularly important in the instant
case when taking into account that the margin calculated in the original investigation was based on the
practice of zeroing negative margins, which has be en found to be inconsistent with WTO rules on
calculating dumping margins.

182 Dep’t Commerce Margin Calculations for Fi nal Determ. in OCTG from Argentina (A-357-
810)(ARG-52); see also Carbon Steel Flat Products from Korea , 63 Fed. Reg. 13,170, 13,174 (Dep’t Comm.
1998)(final admin. review)(stating th at, under the Department’s practi ce, “negative dumping margins are
systematically disregarded, because there is no basis in the anti-dumping law to use negative margins as an
offset or a ‘credit’ against positive margins.”)(ARG-34).
183 Appellate Body Report, Lead from the UK, para. 54.

193. The Department failed to respect the disciplines of Article 2 in its determination of a margin
of 1.36 per cent to report to the Commission as the likely margin to prevail in the event of
termination.

E. THE UNITED STATES FAILED TO ADMINISTER IN AN IMPARTIAL AND REASONABLE MANNER
US ANTI -DUMPING LAWS , REGULATIONS , DECISIONS AND RULINGS WITH RESPECT TO THE
DEPARTMENT’S SUNSET REVIEWS OF ANTI -DUMPING DUTY ORDERS , IN VIOLATION OF
ARTICLE X:3(A) OF THE GATT 1994
194. Argentina explains in sections VIII.B.1. and B.2., above, that the US law, the SAA, and the
Sunset Policy Bulletin establish an irrefutable presumption, as demonstrated by the Department’s
consistent practice, that is inconsistent with Article 11.3. If the panel does not agree that the SAA and
the Sunset Policy Bulletin are measures that can be challenged, then Argentina submits that the United
States failed to administer in an impartial an d reasonable manner US anti-dumping laws, regulations,
decisions and rulings with respect to the Department ’s sunset reviews of anti-dumping duty orders, in
violation of Article X:3(a) of the GATT 1994.

195. As explained above, this argument is whol ly separate and apart from Argentina’s claims
relating to whether certain aspects of US anti-dump ing laws and regulations regarding sunset reviews
are inconsistent per se with US WTO obligations. Moreover, whether the SAA and Sunset Policy
Bulletin constitute “measures” th at can be subject to challenge is not relevant to this claim. The
results of the Department’s sunset review determinations, drawn from the Department’s own records,
demonstrates that the Department failed to administer in an impartial and reasonable manner US anti-
dumping laws, regulations, decisions and rulings with respect to the Department’s conduct of sunset
reviews of anti-dumping duty orders, in violation of Article X:3(a) of the GATT 1994.

1. Sunset reviews of anti-dumping duty orders are subject to GATT Article X:3(a)
196. Article X:3(a) provides:

Each [Member] shall administer in a unifor m, impartial and reasonable manner all its
laws, regulations, decisions and rulings of the kind described in paragraph 1 of this
Article.
197. The “laws, regulations, decisions and rulings” are described in paragraph 1 of Article X as
follows:

Laws, regulations, judicial decisions and administrative rulings of general
application, made effective by any [Member], pertaining to . . . rates of duty, taxes or
other charges, or to requirements, restrictions or prohibitions on imports . . . .
198. Sunset reviews of anti-dumping duty orders clearly fall within the types of laws and
regulations enumerated in Article X:1. In United States – Anti-Dumping Measures on Stainless Steel
Plate in Coils and Stainless Steel Sheet and Strip from Korea, the Panel stated that “[t]here can be no
doubt that the US anti-dumping laws and regulations are ‘laws’ and ‘regulations’ of general
application ‘pertaining to . . . rates of duty, ta xes or other charges, or to other requirements,
restrictions or other prohibitions on imports or exports’ within the meaning of Article X:1 of GATT
1994.”184

184 Panel Report, United States – Anti-Dumping Measures on Stainless Steel Plate in Coils and
Stainless Steel Sheet and Strip from Korea , WT/DS179/R, adopted on 1 February 2001, para. 6.49 n.62
(emphasis added) (“Steel from Korea”).

199. Because sunset reviews of an ti-dumping orders fall within the types of laws and regulations
set out in Article X:1, they are subject to the disciplines of Article X:3(a).

200. Recent panel reports have suggested that “for a Member's action to violate Article X:3(a) that
action should have a significant impact on the overall administration of that Member's law and not
simply on the outcome of the single case in question.”
185 For example, the Panel in Hot-Rolled Steel
from Japan, in dismissing a claim under Article X:3(a), noted that “Japan has not even alleged, much
less established, a pattern of deci sion-making with respect to the specific matters it is raising which
would suggest a lack of uniform, impartial and re asonable administration of the US anti-dumping
law.” 186 By contrast, Argentina will establish a clear and undeniable “pattern of decision making” by
US authorities with respect to the participation of the domestic industry. In every instance in which
the domestic industry participated in the sunset review, the Department made an affirmative
determination of likely dumping.

201. Argentina would recall that the Bovine Hides Panel stated:

Article X:3(a) requires an examination of the real effect that a measure might have on
traders operating in the commercial world . This, of course, does not require a
showing of trade damage, as that is gene rally not a requirement with respect to
violations of the GATT 1994. But it can invo lve an examination of whether there is a
possible impact on the competitive situation due to alleged partiality,
unreasonableness or lack of uniformity in the application of customs rules,
regulations, decisions, etc.”187
202. The following section will show the “real effect on traders operating in the commercial
world” of the conduct of sunset reviews by the Department of Commerce.

2. The Department of Commerce sunset reviews violate GATT Article X:3(a)
203. From the entry into force of the WTO Agreement until the present (September 2003), the
Department of Commerce has conducted 291 sunset reviews of anti-dumping duty orders. As
discussed in Section VII.B.1. above, Argentina has analyzed all 291 of these sunset reviews and has
recorded the Department’s findings for each in Argentina’s Exhibit ARG-63, entitled, “US
Department of Commerce Sunset Reviews.”188

204. Argentina’s comprehensive analysis of all of the sunset reviews conducted by the Department
demonstrates a lack of impartiality and reasonableness on the part of the United States in its
administration of US anti-dumping laws, regulati ons, procedures, and pr actice relating to the
Department’s conduct of sunset reviews of anti-dumping duty orders.

205. According to the Department’s own records:

185 Panel Report, Sunset Review of Steel from Japan, para. 7.310.
186 Panel Report, United States – Anti-Dumping Measures on Certain Hot-Rolled Steel Products from
Japan, WT/DS184/R, adopted on 23 August 2001, para. 7.268 (“Hot-Rolled Steel from Japan”).
187 Panel Report, Argentina – Measures Affecting the Export of Bovine Hides and the Import of
Finished Leather , WT/DS155/R, adopted on 16 February 2001, para. 11.77 (“ Argentina – Bovine Hides ”)
(emphasis added).
188 See supra note 123 and accompanying text for an explanation of the methodology Argentina
employed to construct Exhibit ARG-63.

• In 100 per cent of the sunset reviews in which a domestic interested party participated in the
proceeding, the Department determined that dumping was likely to continue or recur;

• In 100 per cent of the revocations issued by the Department, the domestic industry either did
not participate in the sunset proceeding or subsequently withdrew from the sunset proceeding;

• In 100 per cent of the sunset reviews for whic h the Department determined that dumping was
likely to continue or recur, the Department failed to conduct a prospective analysis, as required
by Article 11.3 of the Anti-Dumping Agreement.

206. As noted above in Section VII.B.1., the sunset review of Industrial Nitrocellulose from
Yugoslavia is particularly illustrative of the unreasonable and biased nature of the Department’s
administration of its sunset review procedures.
189

207. Moreover, as further evidence of the unreason able administration of the Department’s sunset
review laws, regulations, pr ocedures and practices, in 19 sunset proceedings (including the review of
the order on OCTG from Argentina), the Department denied a foreign interested party’s attempt to
participate in the sunset proceeding on the sole basis that respondent’s total exports to the United
States were less than 50 per cent of the tota l exports shipped to the United States from the
respondent’s country during the five calendar years preceding the notice of initiation.

208. Such an arbitrary approach to making a determination as to whether even to permit a
respondent to defend its interests and participate in a sunset review cannot be regarded as reasonable.
That the 50 per cent rule applies only to responde nts highlights the failure to apply the rule in an
impartial manner.

209. An examination of this record shows the “real effect,” in this case the harmful effect, that the
Department’s sunset reviews have on foreign trader s “operating in the commercial world.” It is also
clear that the Department’s consistent violations of U.S obligations under Article X:3(a) impact on the
competitive position of such foreign traders, given th e clear systemic bias against foreign traders in
favor of US industry. This also demonstrates the partiality and unreasonableness in the application by
the Department of US sunset review laws.

210. In sum, separate and apart from whether US anti-dumping laws and regulations regarding
sunset reviews are deemed to be consistent per se with US WTO obligations, and irrespective of
whether the SAA and Sunset Policy Bulletin are “measures” that can be subject to challenge, the data
drawn from the Department’s own records demonstrates that the Department failed to administer in an
impartial and reasonable manner US anti-dumping laws, regulations , decisions and rulings with
respect to the Department’s conduct of sunset revi ews of anti-dumping duty orders, in violation of
Article X:3(a) of the GATT 1994.

189 Industrial Nitrocellulose from Yugoslavia , 64 Fed. Reg. 57,852 (Dep’t Comm. 1999)(final results
sunset reviews)(ARG-42); Industrial Nitrocellulose from Brazil, China, France, Germany, Japan, Korea, the
United Kingdom, and Yugoslavia , USITC Pub. No. 3342, Inv. Nos. 731-TA-96 and 439-445 (August 2000) at
11 (ARG-53).

VIII. THE COMMISSION’S SUNSET REVIEW WAS INCONSISTENT WITH THE ANTI-
DUMPING AGREEMENT AND THE GATT 1994
A. I
N THE SUNSET REVIEW OF OCTG FROM ARGENTINA, THE COMMISSION APPLIED AN
INCORRECT STANDARD FOR DETERMINING WHETHER TERMINATION OF THE ANTI -DUMPING
DUTY MEASURE WOULD BE “LIKELY TO LEAD TO CONTINUATION OR RECURRENCE OF . . .
INJURY” AND VIOLATED ARTICLES 11.3 AND 3.1 OF THE ANTI-DUMPING AGREEMENT
211. The Commission failed to apply the correct standard for determining whether termination of
the anti-dumping measure on OCTG from Argentina would be likely to lead to continuation or
recurrence of injury. The standard applied by the Commission led to an affirmative finding of injury
based on speculation about “possible” injury 190 or injury based on “a conc ept that falls in between
‘probable’ and ‘possible’ on a continuum of relative certainty.”191 The Commission failed to apply a
“ l i k e l y” s t a n d a r d i n t h e s u n s e t r e v i e w o f O C T G from Argentina in violation of Article 11.3 of the
Anti-Dumping Agreement.

212. The ordinary meaning of the term “likely” as used in Article 11.3 is “probable” and not
“possible” or any other standard less than “likely” (“probable”). Both the connotative and denotative
meaning of the term “likely” are the same. Black’s Law Dictionary defines the term “likely” as
“[p]robable” and “[i]n all probability.”
192 Webster’s Dictionary provides a similar definition, equating
the term “likely” to something being “probable” and having a “high probability” of occurring or being
true or being “very probable.” 193 Similarly, Black’s Law Dictionary defines the term “probable” as
“likely.”194

213. That the Commission generally applies a “possible” standard in all sunset reviews, including
in OCTG from Argentina, is based on the guidance in the SAA:

The determination called for in these types of [sunset] reviews is inherently predictive
and speculative. There may be more than one likely outcome following revocation or
termination. The possibility of other likely outcomes does not mean that a
determination that revocation or termination is likely to lead to continuation or
recurrence of dumping or countervailable subsidies, or injury is erroneous, as long as
the determination of likelihood of continuation or recurrence is reasonable in light of
the facts of the case. In such situations, the order or suspended investigation will be
continued.195
214. The standard applied by the Commission in the review of OCTG from Argentina for
determining whether revocation would be likely to lead to continuation or recurrence of injury
allowed for an affirmative finding of injury based simply on speculation about “possible” injury in the
absence of the anti-dumping measure. As establis hed above, Article 11.3 states unambiguously that
an anti-dumping duty order “shall be terminated” af ter five years unless such termination would be
“likely to lead to continuation or recurrence of dumping and injury.”

190 See SAA at 883 (ARG-5)(“There may be more than one likely outcome following revocation or
termination. The possibility of other likely outcomes does not mean that a determination that revocation or
termination is likely to lead to continuation or recurrence of dumping or countervailable subsidies, or injury is
erroneous…”).
191 Int’l Trade Comm’n Remand Determ. Pursuant to Usinor Industeel S.A., et al v. United States ,
No. 01-00006, July 2002) at 7 (“Unisor Remand Determinaton”)(ARG-56).
192 Black’s Law Dictionary 834 (5th ed. 1979)(ARG-61)(citing Horning v. Gerlach, 139 Cal. App. 470,
34 P.2d 504, 505 and Neely v. Chicago Great Western R. Co., Mo. App., 14 S.W.2d 972, 978).
193 Webster’s New Collegiate Dictionary 660 (1979)(ARG-62).
194 Black’s Law Dictionary 1081 (5th ed. 1979).
195 SAA at 883 (ARG-5)(emphasis added).

215. Based on the SAA guidance, the Commission interprets “likely” in this phrase to mean that
any determination – negative or affirmative – is permissible because either outcome is “possible.”
The Commission’s equation of “possible” with “likel y” cannot be reconciled with Article 11.3.
Under the standard articulated in the SAA and applied by the Commission in this case, however, anti-
dumping duty measures will be maintained as long as injury is merely “possible” in the absence of an
order.

216. In a relatively recent remand determination that the Commission issued pursuant to an order
by the United States Court of International Trade, the Commission confirmed that it has followed the
approach of not giving the term “likely” its ordinary meaning of “probable” in all of the sunset review
decisions that it had considered as of 1 July 2002, which would include the sunset review of OCTG
from Argentina. The Commission stated:

To comply with the Court’s remand determination, the Commission must apply a
fundamental term in the statute, ‘likely,’ as it pertains to five-year reviews. We have
applied the term “likely” in over 250 sunset reviews. We have looked to the SAA in
applying the term and have applied the term in a consistent manner.
196
217. In that remand determination, the Commission offered the explanation that:

In our view, the term “likely” captures a concept that falls in between “probable” and
“possible” on a continuum of relative certainty.
197
218. As is evident from the Commission’s statement, it concedes that in “over 250 sunset reviews”
(including the review of OCTG from Argentina), for purposes of its determination of whether material
injury was likely to recur, the Commission “did not equate ‘likely’ with ‘probable.” By its own
admission, the Commission’s consistent practice is not to apply a “probable” standard.

219. Through the SAA, the US Government directed the Commission to apply, and the
Commission applied, a standard for determining whether revocation of an order would likely lead to a
continuation or recurrence of dumping and injury that is inconsistent with the requirements of
Article 11.3 of the Anti-Dumping Agreement.

220. The SAA provides specific guidance on what the Commission should evaluate in sunset
review proceedings:

[T]he Commission must consider whether there has been any improvement in the
state of the domestic industry that is related to the imposition of the order or the
acceptance of a suspension agreement. The Commission should not determine that
there is no likelihood of continuation or recurrence of injury simply because the
industry has recovered after the imposition of an order or acceptance of a suspension
agreement, because one would expect that the imposition of an order or acceptance of
a suspension agreement would have some beneficial effect on the industry.
Moreover, an improvement in the state of the industry related to an order or
acceptance of a suspension agreement may suggest that the state of the industry is
likely to deteriorate if the order is revoked or the suspended investigation
terminated.
198

196 Usinor Remand Determination at 5 (ARG-56).
197 Id. at 7.
198 SAA at 884 (ARG-5)(emphasis added).

221. Based on the above, the Commission failed to apply the correct standard for determining
whether termination of the anti-dumping measure on OCTG from Argentina would be likely to lead to
continuation or recurrence of injury. The standard applied by the Commission led to an affirmative
finding of injury based on speculation about “possible” injury or injury based on “a concept that falls
in between ‘probable’ and ‘possible’ on a continuum of relative certainty.”
199 Irrespective of the
standard applied generally, it is cl ear that the Commission failed to ap ply the “likely” standard in the
sunset review of OCTG from Argentina in violation of Article 11.3 of the Anti-Dumping Agreement.

222. The Commission disagrees that the term “likel y” should be interpreted consistent with its
ordinary and WTO-consistent meaning as “probable.” Rather the Commission employs a “possible”
standard (as prescribed by the SAA) or, as the Commission also explains, “[i]n our view, the term
‘likely’ captures a concept that falls in between ‘probable’ and ‘possible’ on a continuum of relative
certainty.”
200

223. Article 11.3 does not allow the authority to base its determination on “possibilities” or on “a
continuum of relativ e certainty.” Article 11.3 of the Ag reement provides only two choices. The
Commission must decide simply whether or not inju ry would be likely to continue or recur if the
order were terminated.

224. Litigation in US courts over the Commission’s ap plication of the term “likely” in sunset cases
further demonstrates that the plain meaning of the term is “probable.” 201 The failure of the
Commission to equate “likely” with “probable” constituted remandable error under US law in the
Usinor case:

The Commission devotes a substantial portion of the Remand Determination to
arguing that “the term ‘likely’ captures a concept that falls in between ‘probable’ and
‘possible’ on a continuum of relative certainty . . . . The court rejects the
Commission’s attempt to diminish the cl ear statutory standard by adopting a
purposely ambiguous standard, a moving target somewhere between “possible” and
“probable,” in order to couch almost any affirmative determination as consistent with
the Uruguay Round Agreements Act . . . .202
225. Other decisions reveal that US courts are in accord in the interpretation of “likely” to mean
“probable,” and that the Commission does not apply a “likely” standard. In Nippon Steel Corp. v.
United States, the Court of International Trade also addr essed the issue of whether reading the term
“likely” to mean “probable” misstated the likelihood standard. The court found “that likely means
probable within the context of 19 USC. §§ 1675(c) and 1675a(a).” 203 Similarly, in AG Der Dillinger
Hüttenwerke, Eko v. United States , the court, in discussing “likely, ” stated “[t]his means more likely
so than not. It is not simply a toss-up.”204

226. In accordance with the evaluation required by Article 11.3, if the evidence does not
demonstrate the “likely” outcome upon the expiry of the order, the Commission cannot conclude that

199 Usinor Remand Determination at 5 (ARG-56).
200 Id.
201 See Usinor I at 13 (ARG-14 ); Usinor II at 2 (ARG-16); and Nippon Steel Corp. v. United States,
No. 01-00103, slip. op. 02-153 at 7-8 (CIT 24 December 2002)(ARG-17). The grounds for remand in Nippon
Steel were essentially the same as those in the Usinor cases (i.e., the Commission failed to apply the plain and
ordinary meaning of the term “likely”).
202 Usinor II at 4-6 (ARG-16).
203 Nippon Steel Corp., slip op. 02-153 at 7-8 (ARG-17).
204 AG Der Dillinger Hüttenwerke v. United States , No. 00-09-00437, slip. op. 02-107 at 18 n.14 (CIT
5 Sept. 2002)(Department of Commerce sunset review of countervailing duties)(ARG-15).

injury is “likely.” It is not sufficient that injury is “possible;” injury must be more probable than not
to satisfy the Article 11.3 standard. More spec ifically, the Anti-Dumping Agreement mandates that
investigating authorities must resolve whether the ev idence affirmatively demonstrates that volume is
“likely” to increase, that prices are “likely” to be suppressed or depressed, and that material injury is
“likely,” in the event of revocation.

227. As noted above, the panel in DRAMS From Korea commented on the ordinary meaning of the
word “likely” as used in Article 11:

We also note that “likelihood” or “likely” carries with it the ordinary meaning of
“probable”. That being so, it seems to us that a “likely standard” amounts to the view
that where recurrence of dumping is found to be probable as a consequence of
revocation of an anti-dumping duty, this pr obability would constitute a proper basis
for entitlement to maintain that anti-dumping duty in force.
205
228. In the context of a revocation review pursuant to section 751 of the Act, the DRAMS from
Korea panel concluded that the word “likely” when used with respect to the continuation or
recurrence of injury and dumping should be interp reted in accordance with its normal meaning of
“probable.” The panel found that “[a] finding that an event is ‘likely’ implies a greater degree of
certainty that the event will occur than a finding that the event is not ‘not likely.’” Similarly, in the
context of a sunset review, Article 11 requires the Commission to interpret the term “likely”
consistent with its ordinary meaning and usage as “probable” rather than merely as “possible.”206

229. The Commission’s interpretation in sunset review s of the term “likely” as something less than
“probable” contradicts the position taken by the United States in United States – Countervailing
Duties on Certain Corrosion Resistant Carbon Steel Flat Products from Germany where the United
States argued before the Panel that ‘likely’ as used in Article 21.3 of the SCM Agreement “carries
with it the ordinary meaning of probable.”
207

230. In applying the standard set forth in the SA A, the Commission ignored or discounted directly
relevant evidence as to whether revocation would likely lead to material injury.
208 The Commission’s
Sunset Determination makes clear that the Comm ission based its determinations on the mere

205 Panel Report, DRAMS from Korea, para. 6.48 n.494. The case involved a dispute as to the
appropriateness of the Department’s determination regarding whether to terminate an anti-dumping duty order
because dumping had not occurred for at least three years and dumping was not likely to recur in the future – the
Department invoked the a “not likely” standard (i.e., in its revocation review). Under the Department’s
regulations in effect at the time, the Department would revoke an order if it concluded, among other things, that
exporters or producers had sold the merchandise at not less than fair value for at least three years and it was “not
likely” that they would in the future sell the subject merchandise at less than normal value. See 19 C.F.R. §
353.25(a)(2)(ii) (1996)(ARG-4). The panel determined that the Department’s use of the term “not likely” in this
context was inconsistent with the United States obligations under the AD Agreement because it did not properly
enable the Department to determine whether “continued imposition of the duty is necessary to offset dumping,”
as required under Article 11.2 of the WTO Anti-Dumping Agreement. See Panel Report, DRAMS From Korea,
paras. 6.52-6.58.
206 See Appellate Body Report, United States – Gasoline, para. 23; Vienna Convention, Art. 31.
207 Oral Statement of the United States at the First Meeting of the Panel, United States – Countervailing
Duties on Certain Corrosion-Resistant Carbon Steel Flat Products from Germany , WT/DS213
(29-30 January 2002), para.6.
208 Indeed, the Commission determined subsequently in a separate OCTG anti-dumping duty
investigation that “there is no reasonable indication that an industry in the United States is materially injured or
threatened with material injury, or that the establishment of an industry is materially retarded, by reason of
imports of oil country tubular goods.” See Oil Country Tubular Goods From Austria, Brazil, China, France,
Germany, India, Indonesia, Romania, South Africa, Spain, Turkey, Ukraine, and Venezuela , Inv. Nos. 701-TA-
428, 731-TA-992-994 and 996-1005 (Int’l Trade Comm’n 2002)(prelim. determ.)(ARG-55).

“possibility” that termination of the anti-dumping me asure might result in material injury, rather than
the “probability” that it would so result.

231. On several occasions, the Commission engaged in the kind of predictive and speculative
analysis that is prescribed by the SAA and pr ohibited by Article 11.3 of the Anti-Dumping
Agreement.
209 For example, when discussing the question of whether Tenaris 210 would, in the event
the order on OCTG from Argentina were revoked, in crease its shipments to the United States market,
the Commission noted Tenaris’ global focus, then hypothesized that given that focus, it would likely
have a strong incentive to increase its shipments to the United States. 211 Such a finding is nothing
more than a finding that such shipments were conceivably possible , rather than a determination, based
upon hard evidence on the record, that such shipments were probable . The Commission concluded
that, inasmuch as many of Tenaris’ oil and gas company customers had operations in the United
States, it was possible that Tenaris would seek to s upply those operations. It did not, however, cite to
any evidence showing that those supply efforts were planned or ongoing. It would have been equally
possible, depending on current drilling patterns, fo r the Commission to determine that Tenaris would
seek to concentrate its sales to non-US markets.

232. Similarly, the Commission predicts that imports will cause price suppression in the US
market upon revocation of the orders primarily on th e basis of the facts that some imports undersold
the domestic product during the original investigations, that domestic and imported products are
highly substitutable, and that price is an important factor in purchasing decisions.
212 The leap from
these facts to the conclusion that, upon revocation of the orders, subject imports would suppress US
market prices for the subject merchandise is obviously speculative, inasmuch as it ignores the fact that
other conditions in the market (e.g., demand for the product) may have a significant role to play in
whether prices of the subject product rise or fall.

233. The Commission based its determination on the “possibility” that revocation might result in
material injury. The Commission thus failed to apply the “likely to recur” standard and simply
concluded that a finding of injury could be base d on the theoretical “possibility” of injury after
revocation of the subject orders. The Commission also violated Article 3.1 by conducting the
investigation so as to increase th e likelihood of or render inevitable its determining that the domestic
industry would be injured.

209 According to the SAA, “[t]he determination called for in these types of [sunset] reviews is
inherently predictive or speculative. There may be more than one likely outcome following revocation or
termination.” SAA at 883 (ARG-5).
210 The Commission refers interchangeable throughout its determination to “the Tenaris alliance,” the
“Tenaris group,” or simply “Tenaris,” as consisting of the following four companies: NKK (Japan), TAMSA
(Mexico), Dalmine (Italy), and Siderca (Argentina). See e.g., Commission’s Sunset Determination at 12 n.71
(“alliance”), 13 (“alliance”), 13 n.73 (“group”), 19 (“Tenaris”), 19 n.124 (“Tenaris”), and 23 n.153
(“alliance”)(ARG-54). The Commission focused its analysis on Tenaris and largely failed to undertake any
analysis specific to Siderca.
211 Id. at 19.
212 Id. at 21.

B. THE COMMISSION FAILED TO CONDUCT AN “OBJECTIVE EXAMINATION” OF THE RECORD AND
FAILED TO BASE ITS DETERMINATION ON “POSITIVE EVIDENCE ” REGARDING WHETHER
TERMINATION OF THE ANTI -DUMPING DUTY MEASURE WOULD BE LIKELY TO LEAD TO
CONTINUATION OR RECURRENCE OF INJURY IN VIOLATION OF THE ANTI-DUMPING
AGREEMENT
1. The requirements of Articles 3.1 apply to reviews conducted under Article 11.3
234. Article 3 of the Anti-Dumping Agreement app lies to reviews conducted under Article 11.
The WTO jurisprudence establishes that the broad scope of the definition of injury in Article 3 applies
to “injury” for all purposes under the Agreement. As explained above, footnote 9 to Article 3,
“Determination of Injury ,” provides “Under this Agreement the term ‘injury’ shall, unless otherwise
specified, be taken to mean material injury to a domestic industry, threat of injury to a domestic
industry or material retardation to the establishment of such an industry and shall be interpreted in
accordance with the provisions of this Article .”213 The Appellate Body has he ld that “the obligations
in Article 3.1 apply to all injury determinations undertaken by Members,” 214 and has reaffirmed this
proposition, stating “Article 3.1 is an overarching provision that sets forth a Member’s fundamental,
substantive obligation’ with respect to the injury determination.”215

235. The Panel in Sunset Review of Steel from Japan stated that:

Article 3 is entitled “Injury.” This title is linked to footnote 9 of the Anti-Dumping
Agreement, which indicates that: “[u]nder this Agreement the term ‘injury’ shall,
unless otherwise specified, be taken to mean material injury to a domestic industry,
threat of material injury to a domestic industry or material retardation of the
establishment of such an industry and sha ll be interpreted in accordance with the
provisions of this Article.” This seems to demonstrate that the term “injury” as it
appears throughout the Anti-Dumping Agreement – including Article 11 – is to be
construed in accordance with this footnote, unless otherwise specified. This would
seem to support the view that the provisio ns of Article 3 concerning injury may be
generally applicable throughou t the Anti-Dumping Agreement and are not limited in
application to investigations. Article 11 doe s not seem to explicitly specify otherwise
in the case of sunset reviews.

Other textual indications demonstrate that the Article 3 injury obligations apply
throughout the Agreement. For example, the use of the language “for purposes of
Article VI of GATT 1994” in Article 3.1 also suggests that, in general, the obligations
in Article 3 pertaining to injury may a pply throughout the Anti-Dumping Agreement,
i.e. they are not limited to investigations. 216
236. Article 3.1 provides:

A determination of injury for purposes of Article VI of the GATT 1994 shall be based
on positive evidence and involve an objective examination of both (a) the volume of
dumped imports and the effect of dumped imports on prices in the domestic market

213 Emphasis added.
214 Appellate Body Report, H-Beams from Poland, para. 114 (emphasis added).
215 Appellate Body Report, Hot-Rolled Steel from Japan, para. 192 (quoting Appellate Body Report, H-
Beams from Poland, para. 106).
216 Panel Report, Sunset Review of Steel from Japan, para. 7.99. There was not a definitive ruling from
the panel on this issue, since the panel said that this was “an issue we need not and do not decide.” Id. para.
7.101.

for like products, and (b) the consequent impact of these imports on domestic
producers of such products.
237. In Hot Rolled Steel from Japan , the Appellate Body reaffirmed that Article 3.1 of the Anti-
Dumping Agreement sets out clear requirements that must be followed by WTO Members in anti-
dumping proceedings:

[T]his general obligation “informs the more detailed obligations” in the remainder of
Article 3. The thrust of the investigating au thorities’ obligation, in Article 3.1, lies in
the requirement that they base their determination on “positive evidence” and conduct
an “objective examination.” The term “positive evidence” relates, in our view, to the
quality of the evidence that authorities may rely upon in making a determination. The
word “positive” means, to us, that the eviden ce must be of an affirmative, objective
and verifiable character, and that it must be credible.
The term “objective examination” aims at a different aspect of the investigating
authorities’ determination. While the term “positive evidence” focuses on the facts
underpinning and justifying the injury determination, the term “objective
examination” is concerned with the in vestigative process itself. The word
“examination” relates, in our view, to the way in which evidence is gathered, inquired
into and, subsequently, evaluated; that is, it relates to the conduct of the investigation
generally. The word “objective”, which qua lifies the word “examination” indicates
essentially that the “examination” process mu st conform to the dictates of the basic
principles of good faith and fundamental fairness.” In short, an “objective
examination” requires that the domestic in dustry, and the effects of dumped imports,
be investigated in an unbiased manner, without favoring the interests of any interested
party, or group of interested parties in the investigation.
217
238. The standards set out in Article 3.1 apply to determinations in sunset reviews. In HFCS from
the United States , the Panel stated, “Article 3.1 requires that a determination of injury, including
threat of injury, involve[s] an examination of the impact of imports.” 218 The Appellate Body in the
same HFCS case recognized the “close relationship between the various paragraphs of Article 3 of the
Anti-Dumping Agreement.” 219 Further, in H-Beams from Poland , the Appellate Body stated that
“Article 3.1 informs the more detailed obligations in succeeding paragraphs,” 220 and that “as in
Article 3.1, which overarches and informs it, it is the nature of the evidence that is being addressed in
Article 3.7.”221

239. More recently, the Panel in Sunset Review of Steel from Japan suggested (although it was not
required to decide the point) that “the provisions of Article 3 concerning injury may be generally
applicable throughout the Anti-Dumping Agreem ent and are not limited in application to
investigations. Article 11 does not seem to explicitly specify otherwise in the case of sunset reviews.”
Moreover, the Panel also observed:

217 Appellate Body Report, Hot-Rolled Steel from Japan, paras. 192-193 (footnotes omitted).
218 Panel Report, Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the
United States, WT/DS132/R, adopted on 24 February 2000, para. 7.131 (“HFCS from the United States”).
219 Appellate Body Report, Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS)
from the United States: Recourse to Article 21.5 of the DSU by the United States, WT/DS132/AB/RW, adopted
on 21 November 2001, para. 123 (“HFCS from the United States”).
220 Appellate Body Report, H-Beams from Poland, para. 106.
221 Id. at para. 108.

There are other textual indications that the Article 3 injury obligations may generally
apply throughout the Agreement. For example, the use of the language “for purposes
of Article VI of GATT 1994” in Article 3.1 also suggests that, in general, the
obligations pertaining to injury may apply throughout the Anti-Dumping Agreement,
i.e., they are not limited to investigations.222
240. In the OCTG sunset review, instead of cond ucting an “objective” examination of the record
and basing its determination of the likelihood of injury on “positive evidence” established on the
record, the Commission ignored, or improperly discounted, evidence directly relevant to whether
revocation would likely lead to material injury. In lieu of such directly ap plicable positive evidence,
the Commission based its determination on unsubsta ntiated assertions and speculation regarding the
“possibility” that termination might result in material injury. The Commission thus failed to apply the
“likely to recur” standard and simply concluded that a finding of injury could be based permissibly on
a theoretical “possibility” of injury after termination of the anti-dumping measure. As the Sunset
Review of Steel from Japan panel stated, “the requirement to make a ‘determination’ concerning
likelihood . . . precludes an investigating authority from simply assuming th at likelihood exists .”223
The “objective examination” mandated by the Agreement could not have been, and was not,
conducted by the Commission by virtue of the fact that the Commission does not apply a WTO-
consistent “likely” standard.

241. As Argentina has explained at the beginning of Section VIII.A., above, the guiding principle
established by the SAA and applied by the Commission in this case (t hat “[t]here may be more than
one likely outcome following revocation or termination”)
224 is a “possibility” standard, which is
inconsistent with the “probability” standard set forth in Article 11.3.

2. The Commission’s conclusions with respect to the volume of imports, price effects on the
domestic like product, and im pact of imports on the domestic industry demonstrate the
Commission’s failure to conduct an objective examination in violation of Articles 11.3,
3.1, and 3.2 of the Anti-Dumping Agreeme nt. The Commission’s findings were not
based on “positive evidence” of likely injury in the event of termination, in violation of
Articles 11.3, 3.1, and 3.2 of the Anti-Dumping Agreement
242. As demonstrated above, the provisions of Article 3 apply to the likelihood analysis.
Consequently, in a sunset review, Articles 3.1 and 3.2 require the Commission to conduct “an
objective examination” and base its determination on “positive evidence” after considering the volume
of the dumped imports, the effect of the dumped imports on prices in the domestic market for like
products, and the consequent impact of these imports on domestic producers of such products.

(a) The Commission’s findings on likely volume were not based on an objective examination of
the evidence and do not constitute positive evidence of likely injury volume of imports
243. With regard to the volume of subject imports, the Commission concluded “we find that the
volume of subject imports is likely to increase significantly in the event of revocation.” The
Commission made several findings in an attempt to support its conclusion. First, the Commission
pointed to the existence of “substantial” available capacity in the subject countries and concluded that,
notwithstanding high capacity utilization rates in thos e countries, “the record indicates that these
producers have incentives to devote more of their productive capacity to producing and shipping more
casing and tubing to the US market.” 225 Along those lines, the Commission alleged that producers in

222 Panel Report, Sunset Review of Steel from Japan, para. 7.100 (footnote omitted).
223 Id. at para.7.177.
224 SAA at 883 (ARG-5).
225 Commission’s Sunset Determination at 19 (ARG-54).

the subject countries were “export-oriented,” and that in particular, those producers would focus on
the US market.
226 The Commission emphasized that the “Tenaris Group,” with its global focus,
would likely have a strong incentive to ha ve a significant present in the US market. 227 Second, the
Commission found further that (1) there were significant differences between US and world-market
prices for casing and tubing, with US prices being consistently higher, and (2) foreign producers faced
significant import barriers in third-country markets.228

244. There are significant flaws in the Commission’s volume analysis such that its conclusion, that
subject imports would be likely to increase in the event of revocation, cannot be said to be the result
of an objective examination of the record. First, w ith regard to the “Tenaris Group,” there is simply
no evidence in the record that Tenaris could re-o rient production that is committed under existing
contracts. The only way subject producers could si gnificantly increase shipments would be to shift
production away from other pipe and tube products towards casing and tubing. 229 No “positive
evidence” demonstrated that the subject producers had an incentive to shift production. The “positive
evidence” provided by the subject producers in their questionnaire responses to the Commission
showed their existing production was committed by virtue of either long-term contracts or long-
standing relationships with customers that require d them to supply OCTG and other pipe and tube
products. The Commission did not cite any “positive evidence” that the so-called “incentive” to ship
to the United States would justify breaking long-term contracts and turning away long-term
customers. The subject producers also provided “positive evidence” in their questionnaire responses
that they focused on end-users in order to provide those end-users with service-related components for
other commodity pipe and tube products. The Co mmission ignored or summarily dismissed such
evidence.230 Thus, despite the alleged “export-orienta tion” of foreign producers, the Commission
failed to show that exports would enter the United States as opposed to other export markets.

245. Second, 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
imports from Korea. 231 The Commission could not cite an y third-country trade barriers facing
producers in the other four countr ies subject to investigation. Th is is hardly the “positive evidence”
required to support a conclusion that increased exports would be likely to enter the US market.

246. Finally, the Commission alleged that price differentials between the US and world markets
meant that foreign producers would seek to ship primarily to the United States. The Commission,
however, based its conclusion on anecdotal reports from its hearing and not on any independent
investigation.232 The Commission’s reliance on this anecdotal evidence does not constitute the kind
of “objective examination” that Article 3 requires.

(b) The Commission’s findings on likelihood of negative price effects were not based on an
objective examination of the evidence and do not constitute positive evidence of likely injury
247. The Commission’s key finding on negative price effects was that “increases in subject import
sales volume . . . would be ac hieved through lower prices.”
233 The Commission, however, failed to
reference any evidence (let alone “positive evidence”) to support this conclusion.

226 Id. at 20.
227 Id. at 19.
228 Id. at 19-20.
229 Id.
230 Id. at 19 n.126.
231 Id. at 20 and at IV-6 to IV-8 (Staff Report).
232 Id. at 19 n.128.
233 Id. at 21.

248. The Commission attempted to support its conclusion by alleging the following: (1) subject
imports generally undersold the domestic like produc t; (2) there was a high level of substitutability
between subject imports and the domestic like product; (3) price was an important factor in
purchasing decisions; (4) there would likely be a si gnificant volume of subject imports; and (5) US
demand for the subject product was volatile. 234 The majority of these findings are unsupported by the
evidence on the record.

249. As an initial point, because there were neg ligible Argentine OCTG exports, the Commission’s
analysis necessarily focused on the volume of shipments from Italy, Mexico, Japan, and Korea, and
their prices, in order to determine whether injury would likely continue or recur if the duty on
Argentine imports were terminated. Two additional points also deserve attention. First, as the
Commission acknowledged, its underselling analysis was based on a very limited set of
comparisons.
235 Moreover, the Commission failed to note that at the end of the period examined, in
2000, domestic prices increased markedly.236 It is completely illogical – and in no way objective – for
the Commission to conclude that, where prices are increasing toward the end of the period examined,
imports will enter at lower prices and cause injury . Second, the Commission points to the volatile
nature of US demand but fails to explain how this factor signifies that imports will enter the US
market at lower prices. At any rate, the Commission cites no evidence for the proposition that
demand for OCTG was unusually volatile during the period examined.

250. The Commission’s findings on the issue of the importance of price in purchasing decisions
are similarly not based on any “positive evidence.” Price is an important, although not determinative,
factor to purchasers. Responding purchasers ranked quality as their primary purchasing criterion just
as frequently as price, and produc t availability was considered as im portant to purchasers just as
frequently as price.
237 Commission staff acknowledged that there was no clear trend in responses to
the question of whether price differences or differences in factors other than price were significant in
competition between US product and su bject imports of casing and tubing. 238 The Commission also
ignored data that showed that purchasers ranke d factors such as delivery time, delivery terms,
availability, and product quality as higher than pr ice in importance, and ra nked factors such as
discounts offered, reliability of supply, and product consistency as equal in importance. 239 T h e
Commission’s selective interpretation of the r ecord before it clearly demonstrates that the
Commission did not undertake an “objective examination” of this issue.

251. Finally, as noted above, the Commission’s finding that, upon revocation, there would likely
be a significant increase in import volume, is not supported by the record evidence.

(c) The Commission’s findings on likelihood of adverse impact were not based on an objective
examination of the evidence and do not constitute positive evidence of likely injury
252. With regard to whether adverse impact on the domestic industry was likely in the event of
revocation, the Commission concluded that “a signifi cant increase in subject imports is likely to have
negative effects on both the price and volume of the domestic producers’ shipments despite strong

234 Id. at 20-21.
235 Id. at 21 (“While direct selling comparisons are limited because the subject producers had a limited
presence in the US market during the period of review, the few direct comparisons that can be made indicate
that subject casing and tubing generally
 undersold the domestic like product especially in 1999 and 2000”)
(emphasis added).
236 Id. at V-9 to V-11 (Staff Report).
237 Id. at II-17 (Staff Report).
238 Id. at II-18 n.71 (Staff Report).
239 Id. at II-19 (Staff Report).

demand conditions in the near term.”
240 The Commission’s findings on this score, however, compel
the opposite conclusion.

253. The Commission determined that domestic produc ers’ shipments were at their highest level in
calendar year 2000, the most recent period the Commission examined.241 The Commission also found
that domestic production capacity increased by 23 per cent, and production quantity by 39 per cent,
over the period the Commission examined. 242 Operating income, whic h was negative in 1999,
switched to a substantial profit in 2000. Although the domestic industry’s market share declined over
the period examined, the Commission noted that th e share was taken, not by the countries under
investigation, but by nonsubject imports. 243 Finally, the Commission concluded that demand
conditions were projected to be strong in the near term.244

254. Given these positive trends, the Commission noted only that during its original investigation,
there were adverse volume and price effect s of imports despite strong US demand. 245 The
Commission apparently assumed that if increased demand had coexisted with adverse volume and
price effects of imports during the original investigat ion, that must also be possible at the time of its
“determination.” The Commission, however, cites absolutely no evidence to support this assumption.
In the end, despite all of the above positive evidence demonstrating that injury would not be likely in
the event of termination of the anti-dumping me asure on OCTG, the Commission concluded that
termination of the measure would have an adverse impact because subject import volumes would
increase, and therefore prices would decline. As noted above, the Commission failed to substantiate
the basis for these conclusions. Consequently, th e Commission’s flawed analysis with regard to
volume and price effects fatally infected its analysis concerning the likely impact of subject imports.

3. The Commission failed to evaluate all relevant economic factors and indices having a
bearing on the state of the industry, including all of the factors enumerated in Article 3.4
of the Anti-Dumping Agreement
255. Article 3.4 of the Anti-Dumping Agreement requires an examination of actual and potential
decline in sales, profits, output, market share, prod uctivity, return on invest ments, or utilization of
capacity, factors affecting domestic prices, the magnitude of the margin of dumping, actual and
potential negative effects on cash flow, inventories, employment, wages, growth, and ability to raise
capital or investments.

256. The Appellate Body has affirmed that “Article 3.4 requires a mandatory evaluation of all of
the factors listed in that provision.”
246 Thus, the administering authority’s failure to evaluate even one
factor would constitute a violation of Article 3.4. Evaluation by the authority cannot be a
“mechanical exercise,” but must be “based on a thorough evaluation of the state of the industry and
. . . contain a persuasive explanation as to how the evaluation of relevant factors led to the
determination of injury.”247

240 Id. at 22-23.
241 Id. at 22.
242 Id. at 22-23.
243 Id. at 22.
244 Id. at 19.
245 Id. at 22.
246 Appellate Body Report, H-Beams from Poland, para. 128 (emphasis added).
247 Panel Report, H-Beams from Poland, para. 7.236 (emphasis added). The Appellate Body agreed
with the panel report in entirety. See Appellate Body Report, H-Beams from Poland, para. 125. Prior WTO
panels have determined that a WTO permissible evaluation of the required Article 3.4 factors must be more than
a mere recitation or listing of the mandatory factors. Rather a proper analysis must be based on positive record
evidence and entail an objective examination in accordance with Article 3.1. Panel Report, H-Beams from
Poland, para. 7.236.

257. The requirements imposed by Article 3.4 were recently summarized by the Panel in EC –
Pipe Fittings:

The Agreement requires that each listed Ar ticle 3.4 factor be addressed . . . . The
provision requires substantive, rather than purely formal, compliance . . . . The term
“evaluate” is defined as: “To work out the value of . . . ; To reckon up, ascertain the
amount of; to express in terms of the know n; To determine or fix the value of; To
determine the significance, worth of cond ition of usually by careful appraisal or
study.” These definitions reveal that an “evaluation” is a process of analysis and
assessment requiring the exercise of judgement on the part of the investigating
authority. It is not simply a matter of form, and the list of relevant factors to be
evaluated is not a mere checklist . As the relative weight or significance of a given
factor may naturally vary from investigation to investigation, the investigating
authority must therefore assess the role, rele vance and relative weight of each factor
in the particular investigation. Where the authority determines that certain factors
are not relevant or do not weigh significan tly in the determination, the authority may
not simply disregard such factors, but must explain their conclusion as to the lack of
relevance or significance of such factors .
 The assessment of the relevance or
materiality of certain factors, including those factors that are judged to be not central
to the decision, must therefore be at least implicitly apparent from the determination.
Silence on the relevance or irrelevance of a given factor would not suffice.248
258. The Commission’s determination did not addres s several of the mandatory issues, and several
were only addressed in conclusory form. Indeed, th e Commission’s discussion of the majority of the
Article 3.4 factors was limited to mere a recitation of them:

In these reviews, we find that a significant increase in subject imports is likely to
have negative effects on both the price and volume of the domestic producers’
shipments despite strong demand conditions in the near term. We find that these
developments likely would have a significant adverse impact on the production,
shipments, sales, market share, and revenues of the domestic industry. This reduction
in the domestic industry’s production, shipments, sales, market share, and revenues
would result in erosion of the domestic industry’s profitability as well as its ability to
raise capital and make and maintain necessary capital investments.
250
259. The Commission provided little more than a “mere checklist.” As the chart below indicates,
the Commission either failed to consider many factors or simply mentioned others. The
Commission’s approach to the Article 3.4 factors was a “purely formal, rather than substantive
compliance” – precisely the approach that the Pipe Fittings Panel found did not meet the requirements
of Article 3.4. The Commission failed to even identify several of the Article 3.4 factors in its
findings, let alone “evaluate” them.

FACTORS CONSIDERED UNDER ARTICLE 3.4

Factor Referenced Not Considered
Declines (actual or potential) in:
 Sales X 1
 Profits X 1
 Output X 1

248 Panel Report, Pipe Fittings from Brazil, paras. 7.310 and 7.314 (footnote omitted; emphasis added).
249 Commission’s Sunset Determination at 22 (ARG-54).

Factor Referenced Not Considered
 Market Share X
 Productivity X
 Return on
 Investments X
 Capacity Utilization X
Factors Affecting Domestic
Prices X
Margin of Dumping X
Actual and Potential Negative
Effects on:
 Cash Flow X
 Inventories X
 Employment X
 Wages X
 Growth X
 Ability to Raise
 Capital or Investments
X

 1 The Commission referenced these factors, but increases, not declines, were cited.

260. Thus the Commission’s failure to evaluate all of the fifteen factors in Article 3.4, and its
failure to adequately evaluate those factors that it purportedly relied upon, violated Articles 3.4. The
Commission provided substantive analysis of only four of the fifteen mandatory factors. The
remaining eleven factors were either ignored or subject to the kind of “mechanical exercise” that the
Appellate Body indicated would not
 be consistent with Article 3.4.

261. The panel in H-Beams from Poland panel also addressed how the Article 3.4 factors should
be analyzed as a whole consistent with the requirements of the AD Agreement:

[P]ositive movements in a number of factors would require a compelling
explanation
of why and how, in light of such apparent positive trends, the domestic industry was,
or remained, injured within the meaning of the Agreement. In particular, we consider
that such a situation would require a thorough and persuasive explanation as to
whether and how such positive movements we re outweighed by any other factors and
indices which might be moving in a negative direction during the I[nvestigative]
P[eriod].
251
262. The Commission failed to provide anything remotely approaching a “compelling . . . thorough
and persuasive explanation” of its determination regarding the likely impact of imports of OCTG
from Argentina on the domestic industry.

263. Because anti-dumping measures are intended to offset injury to a domestic industry, they
cannot be used to accelerate market expansion of an already healthy domestic industry. Thus, the
Commission’s examination of the likely impact of subject imports on the domestic industry was
inconsistent with Article 3.4.

264. As discussed above, a sunset review evaluates the likelihood of injury in the event of
termination. In this sense the analysis is prospect ive. A likelihood of future injury analysis thus

250 See Commission’s Sunset Determination at 22-23.
251 Panel Report, H-Beams from Poland, para. 7.249 (emphasis added).

entails elements of both Articles 3.4 and Article 3.7 of the Anti-Dumping Agreement. Injury
determinations under Article 3.7 mu st be “based on facts and not merely on allegation, conjecture or
remote possibility.” Moreover, Article 3.7 requir es the circumstances under which injury would
occur to be imminent. As discussed above, the Commission’s injury determination was not based on
“positive evidence,” but instead on evidence that, at best, showed injury to be merely speculative.
The Commission’s determination also was not base d on a finding that injury was “imminent,” but
rather that injury could occur “within a reasonably foreseeable time.” As di scussed in greater detail
below, this standard does not comply with Article 11.3 requirements.

265. The Commission’s failure to evaluate all of the fifteen factors in Article 3.4 is also
inconsistent with an analysis of threat of injury under Article 3.7. The panel in HFCS from the United
States confirmed that the factors in Article 3.4 must be considered whenever any determination of
injury is made, whether material injury or threat of material injury:

In our view, this language makes it clear that the listed factors in Article 3.4 must be
considered in all cases. There may be other relevant economic factors in the
circumstances of a particular case, consideration of which would also be required. In
a threat of injury case, for instance, the AD Agreement itself establishes that
consideration of the Article 3.7 factors is also required. But consideration of the
Article 3.4 factors is required in every case, even though such consideration may lead
the investigating authority to conclude that a particular factor is not probative in the
circumstances of a particular industry or a particular case, and therefore is not
relevant to the actual determination. Mor eover, the consideration of each of the
Article 3.4 factors must be apparent in th e final determination of the investigating
authority.
252
266. A WTO-permissible evaluation of each fact or must include an objective examination and
positive evidence in the record. The Appellate Body has reaffirmed that investigating authorities must
comply with this standard in threat of injury determinations as well as material injury ones. 253 As in a
threat determination, the analysis of injury in sunset reviews involves a prospective examination of
the likely impact of imports on the domestic indu stry. Under such circumstances, the Commission
must fully examine each of the fifteen factors ba sed on positive evidence. The Commission failed to
do so in the sunset review of the anti-dumping order on OCTG from Argentina.

4. The Commission failed to analyse the issue of whether, if the anti-dumping measure
were revoked, the continuation or recurren ce of injury to the domestic industry would
be caused by imports of Argentine OCTG, in violation of Article 11.3 and 3.5 of the
Anti-Dumping Agreement
267. Moreover, the Commission failed to analyze th e issue of whether, if the order on OCTG from
Argentina were revoked, the continuation or recurre nce of injury to the domestic industry would be
caused by imports of the subject merchandise. As noted above, the provisions of Article 3 apply to
sunset reviews conducted under Article 11.3. 254 Under Article 3.5 of th e Anti-Dumping Agreement,
an administering authority must demonstrate that “the dumped imports are, through the effects of
dumping, as set forth in paragraphs 2 and 4, causing injury within the meaning of this Agreement.”

268. The Appellate Body in Certain Hot-Rolled Steel from Japan laid out a framework within
which the Commission could have conducted such a causation analysis. That framework involved
the following obligations on the part of the Commission: (1) an identification of the factors that could

252 Panel Report, HFCS from the United States, para. 7.128.
253 Appellate Body Report, H-Beams from Poland, para. 108.
254 See discussion in section VIII.B.1. above.

be causing injury to the domestic industry; (2) a determination of whether these factors are operating
simultaneously; (3) a determination of whether these factors are having an injurious effect; (4) a
distinction between the injurious effects (if any) of dumped imports versus injurious effects of other
known factors; and (5) ensuring that domestic injury caused by other factors is not attributed to
dumped imports. With regard to (4) and (5), the Appellate Body held that the Commission had failed
to separate and distinguish the effects of dumped imports from the effects of other factors, and that
this failure directly contradicted the language in Article 3.5 of the Agreement.
255

269. In the review of OCTG from Argentina, the Commission similarly has failed to separate and
distinguish the potential injurious effects of othe r causal factors from the potential effects of the
dumped imports. Nowhere in the Commission’s opin ion is there any analysis of whether injury
would be caused by factors other than subject imports, were the anti-dumping order on OCTG from
Argentina to be revoked. In particular, in the section of the opinion discussing the likely impact on
the domestic industry of the revocation of the orders (pertaining to Argentina, Italy, Japan, Korea, and
Mexico), the Commission focuses solely on the likel y effects of alleged increases in imports, without
a thorough examination of other characteristics of the market (e.g., expected changes in demand) that
might affect the condition of the domestic industr y upon revocation of the orders. Hence, the
Commission’s approach violated Article 3.5 of the Agreement.

C. T
HE US STATUTORY REQUIREMENTS THAT THE COMMISSION DETERMINE WHETHER INJURY
WOULD BE LIKELY TO CONTINUE OR RECUR “WITHIN A REASONABLY FORESEEABLE TIME ”
(19 USC. § 1675A(A)(1)) AND THAT THE COMMISSION “SHALL CONSIDER THAT THE EFFECTS
OF REVOCATION OR TERMINATION MAY NOT BE IMMINENT , BUT MAY MANIFEST THEMSELVES
ONLY OVER A LONGER PERIOD OF TIME ” (19 USC. § 1675A(A)(5)), ARE INCONSISTENT WITH
ARTICLES 11.1, 11.3 AND 3 OF THE ANTI-DUMPING AGREEMENT
1. 19 USC. §§ 1675a(a)(1) and (5) are inconsistent as such with Articles 11.3 and 3 of the
Anti-Dumping Agreement
270. The US anti-dumping statute requires that in a sunset review the Commission must determine
whether injury would be likely to continue or recur “within a reasonably foreseeable time.” 256 The
statute further mandates that the Commission “sha ll consider that the effects of revocation or
termination may not be imminent, but may manifest themselves only over a longer period of time.” 257
The SAA reaffirms this statutory language and expl ains that the ‘reasonably foreseeable time’ . . .
normally will exceed the ‘imminent’ time frame applicable in a threat of injury analysis.”258 The SAA
further specifies that the Commission shall consider “factors that may only manifest themselves in the
longer term.”259

271. The absence of temporal limitations on the possibility of future injury, coupled with
speculation regarding future market conditions – th e central features of these statutory provisions –
are inconsistent with the standard under Article 11.3 of the Anti-Dumping Agreement. The
Commission’s market forecasting and speculation is inconsistent with WTO requirements to assess
whether termination of an anti-dumping duty order wo uld be likely to lead to recurrence of injury
upon revocation of the order . The term “imminent” is not defined in the statute. As applied in US

255 Appellate Body Report, Hot-Rolled Steel from Japan, paras. 222-223.
256 19 USC. § 1675a(a)(1)(ARG-1).
257 19 USC. § 1675a(a)(5)(ARG-1).
258 SAA at 887 (ARG-5).
259 Id.

law, however, the term “imminent” has been used to describe events potentially occurring several
years into the future.260

272. The US statutes defining a “reasonably foreseeable time,” as longer than an “imminent” time,
are inconsistent with the Anti-Dumping Agreement that requires the determination to be based upon
injury upon “expiry” of the order. 261 Footnote 9 to Article 3 defines the types of injury recognized
under Article 3 for purposes of the Anti-Dumping Agreement: material injury to a domestic industry,
threat of material injury to a domestic industry, or material retardation of the establishment of such an
industry. The US statutory provisions permit the Commission to find injury without support of
“positive evidence,” that is based on sheer speculation, and that is far less immediate than the time
frame contemplated by “threat of injury” as set forth in Article 3.7.

273. These provisions of US law are inconsistent with the obligations in Articles 3.7 and 3.8 of the
Anti-Dumping Agreement. A likelihood of future in jury analysis in accordance with Article 11.4
necessary entails elements of bot h Articles 3.4 and Article 3.7. Injury determinations under
Article 3.7 must be “based on facts and not merely on allegation, conjecture or remote possibility.”
Moreover, Article 3.7 requires the circumstan ces under which injury would occur to be imminent.
The Commission’s injury determination was not ba sed on “positive evidence” but rather conjecture
and speculation. Furthermore, such conjecture and speculation as to the factors causing likely injury
were not deemed to be “imminent” but rather might occur “within a reasonably foreseeable time.” US
law does not define, nor has the Commission articul ated, what constitutes “a reasonably foreseeable
time.”262 The virtually unbridled discretion of the Co mmission in making its determinations as to
whether injury is likely to continue or recur c onflicts with the requirements of the Anti-Dumping
Agreement. Speculation by an investigating author ity about market conditions several years into the
future is inconsistent with Article 11.3 and Article 3.

274. Similarly, US law imposes an obligation on the Commission inconsistent with the mandate of
Article 3.8, which provides that

With respect to cases where injury is threatened by dumped imports, the application
of anti-dumping measures shall be considered and decided with special care.
275. These provisions of US law operate to release the Commission from the constraints and
safeguards built into Articles 3.7 and 3.8 of the Anti-Dumping Agreement in cases involving future
injury. Article 3.8 requires that Members “considered and decided” with “special care” in the
application of anti-dumping measures based on future injury findings. By extending the period of
time outward (with no limitations) within which the Commission must consider whether domestic
producers might be injured, the statutory provisions fail to satisfy the “likely” analysis mandated by
Articles 11.3, 3.1, 3.2, 3.4, 3.7, and 3.8 of the Anti-Dumping Agreement.

260 See, e.g., Asociacion de Productores de Salmon y Trucha de Chile AG v. United States Int’l Trade
Comm’n, 180 F. Supp. 2d 1360, 1371-72 (CIT 2002)(ARG-13)(“Both the dictionary definition and case law
from the CIT demonstrate that the statutory term ‘imminent’ only means impending . . . [and not necessarily
immediate]”) (ARG-13); Goss Graphics Systems v. United States , 33 F. Supp. 2d 1082, 1102-04 (CIT
1998)(ARG-10)(basis for threat of injury finding was a decline in the industry’s market share that was projected
to manifest itself over two years into the future).
261 The Commission has never defined what constitutes a “reasonably foreseeable time.” The
Commission provides no parameters and simply makes such decisions on a case-by-case basis.
262 Commission’s Sunset Determination at 7-8 and n.41 (ARG-54).

2. The Commission’s application of 19 USC. §§ 1675a(a)(1) and (5) in it the Sunset Review
of OCTG from Argentina was inconsistent with Articles 11.3 and 3 of the Anti-Dumping
Agreement
276. As applied in this case, the Commission provides no clue as to what time period it considered
to be a “reasonably foreseeable time” in making it s decision that injury to the domestic industry
would be likely to continue or recur if the orders were revoked. It merely quotes the SAA, which
provides that “a ‘reasonably foreseeable time’ will vary from case-to-case, but normally will exceed
the ‘imminent’ time frame applicable in a threat of injury analysis . . . .”
263 Thus, the Commission
interprets the SAA language as giving it carte blanche to define the concept of “reasonably
foreseeable time” any way it wishes, depending on the circumstances of each investigation.

277. The Commission cites to certain factors enumerated in the SAA that it “should” consider in
defining what its “reasonably foreseeable time” sh ould be, in particular: (1) the fungibility or
differentiation within the product in question, (2) the level of substitutability between the imported
and domestic products, (3) the channels of distribution used, (4) the methods of contracting (e.g., spot
sales or long-term contracts), (5) lead times for delivery of goods, and (6) planned investment and the
shifting of production facilities.
264 In these reviews, however, the Commission (with one exception)
fails to analyze any of these factors in determin ing what length of time it considers reasonably
foreseeable.265 For example, the Commission alludes to the issues of fungibility and channels of
distribution in the section of its opinion discussing the likelihood of a reasonable overlap of
competition, but fails to link these analyses to any conclusions concerning the time frame within
which injury is likely to continue or recur.
266 Consequently, even if the statutory language were
consistent with the Anti-Dumping Agreement, the Commission failed to apply the statutory language
to the evidence before it to conclude that revocation of the orders would likely lead to continuation or
recurrence of injury.

D. THE COMMISSION’S APPLICATION OF A “CUMULATIVE” INJURY ANALYSIS IN THE SUNSET
REVIEW OF THE ANTI -DUMPING DUTY MEASURE ON OCTG WAS INCONSISTENT WITH
ARTICLES 11.3 AND 3.3 OF THE ANTI-DUMPING AGREEMENT
278. The Commission’s application of a cumulative injury analysis in the sunset review of OCTG
from Argentina violated Article 11.3 and Article 3.3.

279. Article 11.3 of the Anti-Dumping Agreement provides each WTO Member with the right to
have an anti-dumping measure affecting its export s removed after five years, unless doing so would
be likely to lead to continuation or recurrence of injury. The United States never made such a finding
in this case. The Commission never analyzed th e effect of removing the anti-dumping measure on
Argentine OCTG. Rather, the Commission performed a cumulative assessment, which essentially
conditioned Argentina’s right under Article 11.3 upon the actions of exporters from other WTO
Members, and the Commission’s interpretation of those actions.

280. There is no basis in the text of Article 11.3 to suggest that Argentina’s rights to have anti-
dumping measures expire were intended to be conditio ned 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-

263 Id.
264 Id. at n.40.
265 Commission Koplan defines “reasonably foreseeable time” as “the length of time it is likely to take
for the market to adjust to a revocation or termination.” Id. at 8 n.41. Even Commissioner Koplan, however,
although mentioning the enumerated factors in the SAA, does not provide any indication as to the parameters of
that time period.
266 Id. at 12-13.

dumping measure on Argentine OC TG (not all anti-dumping measures on OCTG from other
countries) would be likely to lead to a continuation or recurrence of injury.

281. The US position regarding cumulative assessment is inconsistent with the plain meaning of
Article 11.3, and the object and purpose of the sunset provision.

282. First, the specific reference in the text of Article 11.3 to “an anti-dumping duty” is singular
and not plural, which on its face refers to one measure, and not multiple anti-dumping measures.
Indeed, the United States takes the position that sunset reviews must be conducted on an order-wide
basis.267

283. Second, the text of Article 3.3 makes clear that cumulation is permitted only in investigations.
Moreover, there is no cross-reference in Article 3.3 to Article 11.3.

284. Third, there is no explicit cross-reference to either cumulation or to Article 3.3 in the
immediate context of Article 11 ( i.e., Articles 11.1, 11.2, 11.4, or 11.5) or in the broader context of
the Anti-Dumping Agreement. In Steel from Germany , the Appellate Body considered whether any
de minimis standard was intended to apply to sunset revi ews by “implication” with an analysis of the
text of Article 21.3 and Article 11.9. The Appellate Body found no such implication. The Appellate
Body examined the provisions of Article 21.4 and 21.5, which contain explic it cross-references to
other SCM Agreement provisions. The Appellate Body concluded that these explicit cross-references
to other provisions, combined with the absence of cross-referencing to the de minimis provision,
indicated that the drafters intended there to be no
 de minimis standard applicable to Article 21.3.

285. Fourth, neither an analysis of the object and purpose of the sunset provisions nor
consideration of the object and purpose of the Anti-Dumping Agreement su ggests that a cumulated
injury approach analysis is somehow implied in Article 11.3. In fact, the opposite is true: WTO
Members agreed to provisions that would ensure that anti-dumping measures would not continue in
perpetuity.

286. Fifth, the reasoning of the Appellate Body suggests that it understands that the injury analysis
in a sunset review is not conducted on a cumulated basis: “Thus, in our view, the terms
‘subsidization’ and ‘injury’ each have an independent meaning in the SCM Agreement which is not
derived by reference to the other. It is unlikely that very low levels of subsidization could be
demonstrated to cause ‘material’ injury.” Steel from Germany, para. 81 (italics in original). Such a
statement would be true only where the injury analysis is not conducted on a cumulated basis.

287. Finally, it is important to emphasize that this is an issue of first impression at the WTO.
Indeed, the Panel in Sunset Review of Steel from Japan confirmed that:

According to Japan, the logical consequence of the US proposition that the
quantitative criteria set out in Article 3.3 do not apply in sunset reviews is that the US
administering authorities cannot cumulate in sunset reviews. However, Japan
clarified that it is not arguing before us that cumulati on cannot be used at all in the
injury component of a sunset review. For this reason, we do not address the more
general issue of whether or not cumulation is permitted in sunset reviews.268

267 US First Written Submission, United States – Sunset Review of Anti-Dumping Duties on Corrosion-
Resistant Carbon Steel Flat Products from Japan, WT/DS244 (7 October 2002), para. 162.
268 Panel Report, Sunset Review of Steel from Japan , para. 7.104 (citing Second Oral Submission of
Japan, para. 51; Response of Japan to Question 22 from the Panel).

E. A
SSUMING ARGUENDO THAT ARTICLES 3.3 AND 11.3 DO NOT PRECLUDE CUMULATION IN
ARTICLE 11.3 REVIEWS, THEN THE TERMS OF ARTICLE 3.3 APPLY TO ANY SUCH CUMULATIVE
ANALYSIS IN A SUNSET REVIEW . APPLICATION OF EITHER THE DE MINIMIS OR NEGLIGIBILITY
REQUIREMENTS (BOTH OF WHICH MUST BE SATISFIED ) WOULD HAVE PREVENTED
CUMULATION IN THIS CASE . THE COMMISSION’S CUMULATIVE INJURY ANALYSIS IN THE
COMMISSION’S SUNSET DETERMINATION FAILED TO SATISFY THE ARTICLE 3.3
REQUIREMENTS
288. Assuming arguendo that Articles 3.3 and 11.3 do not preclude cumulation in Article 11.3
reviews, then the terms 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 cumula tion in this case. The Commission’s cumulative
injury analysis in the Commission’s Sunset Dete rmination thus failed to satisfy the Article 3.3
requirements.

289. Article 11.3’s use of the word “injury” in the mandate that the authorities determine whether
termination of the anti-dumping measure “would be likely to lead to continuation or recurrence of
dumping and injury” means, as explained above, that the requirements of Article 3 apply to such
determination.

290. In any event, as applied in this case, cumulation would have been prevented as a result of the
clear language of Article 3.3 of the Agreement. Article 3.3 provides, in relevant part, that:

Where imports of a product from more than one country are simultaneously subject to
anti-dumping investigations, the investigating authorities may cumulatively assess the
effects of such imports only if they determine that (a) the margin of dumping
established in relation to the imports from each country is
more than de minimis as
defined in paragraph 8 of Article 5 and the volume of imports from each country is
not negligible and (b) a cumulative assessment of the effects of the imports is
appropriate in light of the conditions of competition between the imported products
and the like domestic product.
291. For Argentina, the margin of dumping found by the Department of Commerce in its sunset
determination was only 1.36 per cent , far below the 2 per cent level that the Agreement establishes as
de minimis.
269 Moreover, the volume of imports from Argentina during the period examined never
exceeded 3 per cent of total imports, which is the standard for negligibility under the Anti-Dumping
Agreement.270 Accordingly, it was a clear violation of Articles 11.3 and 3.3 the Anti-Dumping
Agreement for the Commission to cumulate imports from Argentina with those from Italy, Japan,
Korea, and Mexico in these sunset reviews.

269 Commission’s Sunset Determination at I-14 (Staff Report)(ARG-54)(citing 65 Fed. Reg. 66,701,
7 November 2000). Paragraph 8 of Article 5 of the Agreement provides that “the margin of dumping shall be
considered to be de minimis if this margin is less than 2 per cent, expressed as a percentage of the export price.”
270 Commission’s Sunset Determination at IV-3, table IV-1 (Staff Report)(ARG-54). In 2000, by
quantity, imports from Argentina represented 2.9 per cent of total imports, and were less than 1.0 per cent of
such imports in each of the four preceding calendar years. These percentages are all below the 3 per cent
standard established by US law. 19 USC. § 1677(24)(A)(i)(ARG-2).

F. THE COMMISSION’S USE OF A CUMULATED INJURY ANALYSIS IN THIS SUNSET REVIEW WAS
INCONSISTENT WITH ARTICLES 11.3 AND 3.1 OF THE ANTI-DUMPING AGREEMENT BECAUSE IT
PREVENTED THE COMMISSION FROM APPLYING A “LIKELY” STANDARD, AND WAS NOT BASED
ON POSITIVE EVIDENCE
292. The Commission’s application in this case of the cumulation provision of the anti-dumping
statute is inconsistent with the Agreement in an other fundamental respect. Article 11.3 of the
Agreement provides that the administering aut hority shall terminate anti-dumping duties after
expiration of a five-year period unless the authority determines that removing the duty would be likely
to lead to continuation or recurrence of injury. As noted above, the Article 11.3 standard of likelihood
of continuation or recurrence of injury involves the probability that the result in question will occur.
However, in reaching its decision to cumulate in this case, the Commission considered whether
imports from each subject source have any possible
 discernible adverse impact on the domestic
industry.271 The Commission cumulated the imports because it did not find that the imports would
have no discernible adverse impact on the domestic industry.

293. Inasmuch as the language in the standard applied by the Commission is written in the form of
two negative clauses,
272 an equivalent reading of the language is that the Commission cumulated
imports of subject merchandise from sources that, considered individually, have any possible adverse
impact on the domestic industry. This low standard runs directly counter to the “likely” standard
established by Article 11.3. 273 While the Commission applied this low standard to the decision to
cumulate and not directly to its d ecision of likelihood of injury, it cannot be seriously argued that an
affirmative likelihood of injury determination could ha ve been made in this case without a decision to
cumulate the imports from the investigated countries.

294. 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. The Appellate Body stated “[i]t is unlikely that very low
levels of subsidization could be demonstrated to cause ‘material’ injury,”274 and it added 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.”275 As stated above,
Argentina believes that the practice of cumulation itself is inconsistent with Articles 11.3 and 3.3 of
the Agreement, and that it conflicts with the above- quoted reasoning of the Appellate Body. The low
“possibility” standard that the Commission used in deciding whether to cumulate in this case made
cumulation unavoidable, and allowed the Commission to make an affirmative “likelihood”
determination without the type of “persuasive evidence” required by the Appellate Body.

IX. THE IDENTIFIED US MEASURES ARE INCONSISTENT WITH ARTICLE VI OF
THE GATT 1994, ARTICLES 1 AND 18 OF THE ANTI-DUMPING AGREEMENT,
AND ARTICLE XVI:4 OF THE WTO AGREEMENT
295. The measures identified by Argentina in its Panel request, including the Department’s
determination to conduct an expedited review, the Department’s Sunset Determination, the

271 Commission’s Sunset Determination at 6, 10-16.
272 See 19 USC. § 1675a(a)(7) (“…The Commission shall not cumulatively assess the volume and
effects of imports of the subject merchandise in a case in which it determines that such imports are likely to
have no discernible adverse impact on the domestic industry.”)
273 See Panel Report, DRAMS From Korea at paras. 6.48, 6.52-6.58. The panel found that “[a] finding
that an event is ‘likely’ implies a greater degree of certainty that the event will occur than a finding that the
event is not ‘not likely.’”
274 Appellate Body Report, Steel from Germany, para. 81 (italics in original).
275 Id. at para. 88.

Commission’s Sunset Determination, the Department’s Determination to Continue the Order, and the
relevant US laws, regulations, policies and procedur es, are inconsistent with the obligations of the
United States with Article VI of the GATT 1994 , Articles 1, 18.1 and 18.4 of the Anti-Dumping
Agreement, as well as Article XVI:4 of the WTO Agreement.

A. T
HE US MEASURES VIOLATE THE BASIC PRINCIPLES OF THE ANTI-DUMPING AGREEMENT, AS
PROVIDED IN ARTICLE 1
296. Article 1 of the Anti-Dumping Agr eement (“Principles”) states that:

An anti-dumping measure shall be applied only under the circumstances provided for
in Article VI of GATT 1994 and pursuant to investigations initiated and conducted in
accordance with the provisions of this Agreement. The following provisions govern
the application of Article VI of GATT 1994 in so far as action is taken under anti-
dumping legislation or regulations. [footnote omitted]
297. Article 1 thus provides that anti-dumping measures, including those related to sunset reviews,
can be applied only under the circumstances provide d for in GATT Article VI . The application of
GATT Article VI, in turn, is governed by the provisio ns of the Anti-Dumping Agreement. Therefore,
any breach of a provision of the Agreement, by definition, entails a consequential violation of
Article 1.

298. As noted by the Panel in the 1916 Anti-Dumping Act dispute:

As far as Article 1 is concerned, we note that if we find a violation of other provisions
of the Anti-Dumping Agreement, it will be demonstrated that an anti-dumping
investigation under the 1916 Act is not “initiated or conducted in accordance with the
provisions of this Agreement” and a breach of Article 1 will be established.
276
299. Argentina has demonstrated in this submission that the identified US measures, both as such
as applied, violate the obligations of the Un ited States under the Anti-Dumping Agreement.
Therefore, the identified US measures also violate Article 1.

B. THE IDENTIFIED US MEASURES, WHICH CONSTITUTE A “SPECIFIC ACTION AGAINST DUMPING,”
VIOLATE ARTICLE 18.1 OF THE AGREEMENT
300. Article 18.1 states that:

No specific action against dumping of ex ports from another Me mber can be taken
except in accordance with the provisions of GATT 1994, as interpreted by this
Agreement. [footnote omitted]
301. The Appellate Body recently explained the tw o “conditions precedent” that must be met for
Article 18.1 to apply:

The first is that a measure must be “sp ecific” to dumping or subsidization. The
second is that a measure must be “against” dumping or subsidization. These two

276 United States – Anti-Dumping Act of 1916, Complaint by the European Communities, Report of the
Panel, para. 6.208. The Panel considering the complaint by Japan reached the same conclusion: see United
States – Anti-Dumping Act of 1916, Complaint by Japan, Report of the Panel, para. 6.264. The Appellate Body
upheld these findings regarding the violation of Article 1: Appellate Body Report, United States – Anti-
Dumping Act of 1916, paras. 134-135.

conditions operate together and complement each other . . . . If . . . it is established
that a measure meets these two conditions, and thus falls within the scope of the
prohibitions in [that provision], it would then be necessary to move to a further step
in the analysis and to determine whether the measure has been "taken in accordance
with the provisions of GATT 1994", as in terpreted by the Anti-Dumping Agreement.
. . . If it is determined that this is no t the case, the measure would be inconsistent
with Article 18.1 of the Anti-Dumping Agreement. . . . .277
302. A “specific action against dumping” of exports is an “action that is taken in response to
situations presenting the constituent elements of ‘dumping’.” 278 The “constituent elements of
dumping”, in turn, are “found in the definition of dumping in Article VI:1 of the GATT 1994, as
elaborated in Article 2 of the Anti-Dumping Agreement.”
279 A measure can be considered to have
been taken ‘against’ dumping wher e it creates “‘opposition’ to dumpin g . . . such that it dissuades
[this practice], or creates an incentive to terminate [it].” 280

303. It is uncontroversial that the US measures identified by Argentina are all “specific actions
against dumping of exports,” in this case exports of OCTG from Argentina. The US sunset review
laws, by their own terms, are predicated upon the ex istence of a dumping order, and can only operate
in such circumstances. The “constituent elements of dumping” clearly exist. The dumping order
against OCTG from Argentina, and the contin uation of this order following the Sunset
Determinations, were incontestably taken as measures “against” dumping. These threshold issues can
therefore be disposed of quickly.

304. Then Panel then needs to “move to a further st ep in the analysis,” as stated by the Appellate
Body, to “determine whether the measure has been ‘taken in accordance with the provisions of GATT
1994’, as interpreted by the Anti-Dumping Agreement.” Argentina’s submission has demonstrated
numerous violations of the Anti-Dumping Agreement by the United States. As such, by definition the
measures have not been taken in accordance GA TT Article VI, as interpreted by the Anti-Dumping
Agreement.

305. Moreover, DSU Article 3.8 provides in part that:

In cases where there is an infringement of the obligations assumed under a covered
agreement, the action is considered prima facie to constitute a case of nullification or
impairment.
306. The United States has infringed its obliga tions under the Anti-Dumping Agreement and the
GATT 1994, and as such has nullified or impaired the benefits accruing to Argentina under these
agreements.
281

277 Appellate Body Report, United States – Continued Dumping and Subsidy Act of 2000 ,
WT/DS217/AB/R, WT/DS234/AB/R, adopted on 27 January 2003, para. 236 (“ United States – Continued
Dumping and Subsidy Act”).
278 Appellate Body Report, United States – Anti-Dumping Act of 1916, para. 130.
279 Id. at paras.105-106 and 130; Appellate Body Report, United States – Continued Dumping and
Subsidy Act, para. 240.
280 Appellate Body Report, United States – Continued Dumping and Subsidy Act, para. 259.
281 In the Byrd Amendment case, the Appellate Body stated:

We conclude that, to the extent we have found that the CDSOA is inconsistent with
Article 18.1 of the Anti-Dumping Agreement and Article 32.1 of the SCM Agreement, the
[Byrd Amendment] nullifies or impairs benefits accruing to the appellees in this dispute under
those Agreements.

C. T
HE UNITED STATES HAS FAILED TO ENSURE CONFOR MITY OF ITS MEASURES WITH ITS WTO
OBLIGATIONS, IN VIOLATION OF ARTICLE 18.4 OF THE ANTI-DUMPING AGREEMENT AND
ARTICLE VI:4 OF THE WTO AGREEMENT
307. Article 18.4 of the Anti-Dumping Agreement provides that:

Each Member shall take all necessary steps, of a general or particular character, to
ensure, not later than the date of entry into force of the WTO Agreement for it, the
conformity of its laws, regulations and admi nistrative procedures with the provisions
of this Agreement as they may apply for the Member in question.
308. Any violation of any provision of the Anti-Dumping Agreement therefore triggers a
consequential violation of Article 18.4 of the Anti-Dumping Agreement.

309. Article XVI:4 of the WTO Agreement states:

Each Member shall ensure the conformity of its laws, regulations and administrative
procedures with its obligations as provided in the annexed Agreements.
310. Any violation of any provision of a covered agreement will similarly trigger a consequential
violation of Article 18.4 of Article XVI:4.

311. In the Byrd Amendment case the Appellate Body found that:

As a consequence of our finding that the Un ited States has acted inconsistently with
Article 18.1 of the Anti-Dumping Agreement and Article 32.1 of the SCM
Agreement, we uphold the Panel's finding that the United States has failed to comply
with Article 18.4 of the Anti-Dumping Agreement, Article 32.5 of the SCM
Agreement and Article XVI:4 of the WTO Agreement.282
312. Other cases have also followed this approach. For example, the Hot-Rolled Steel from Japan
Panel concluded that a certain US law was:

inconsistent with Article 9.4 of the AD Agreement, and . . . therefore the United
States has acted inconsistently with its obligations under Article 18.4 of the AD
Agreement and Article XVI:4 of the Marrakesh Agreement by failing to bring that
provision into conformity with its obligations under the AD Agreement.
283
313. Therefore, a finding by this Panel that the Un ited States has acted inconsistently with any of
its obligations under the Anti-Dumping Agreement will necessitate a finding that it has also acted
inconsistently with Article 18.4 of the Anti -Dumping Agreement and Article XVI:4 of the WTO
Agreement.

Appellate Body Report, United States – Continued Dumping and Subsidy Act, para. 304.

282 Id. at para. 302.
283 Panel Report, Hot-Rolled Steel from Japan, para. 8.1.

X. CONCLUSION
314. As demonstrated herein, Argentina respectfu lly requests that the panel find the following
violations by the United States of the Anti-Dumping Agreement, the GATT 1994, and the WTO
Agreement:

A. US SUNSET REVIEW STATUTORY , REGULATORY, AND ADMINISTRATIVE PROVISIONS AS SUCH
VIOLATE THE ANTI-DUMPING AGREEMENT AND THE WTO AGREEMENT
• By mandating that the Department issue a likelihood of dumping determination, without the
conduct of a review, without any substantive analysis, and without making the requisite
determination, 19 USC. § 1675(c)(4) and 19 C.F.R. § 218(d)(2)(iii) (the “waiver provisions”)
violate Article 11.3 of the Anti-Dumping Agreement;

• By precluding respondent interest parties the ability to provide information and to defend their
interest in a manner inconsistent with the requirements of the Anti-Dumping Agreement, 19
USC. § 1675(c)(4) and 19 C.F.R. § 218(d)(2)( iii) violate Articles 6.1 and 6.2 of the Anti-
Dumping Agreement;

• By requiring that the Commission determine whether injury would be likely to continue or
recur “within a reasonably foreseeable time” (19 USC. § 1675a(a)(1)) and that the
Commission “shall consider that the effects of revocation or termination may not be imminent,
but may manifest themselves only over a longer period of time” (19 USC. § 1675a(a)(5)),
these statutory provisions violate Articles 3.1, 3.2, 3.4, 3.5, 3.7, 3.8, 11.1, and 11.3 of the Anti-
Dumping Agreement;

• By establishing an irrefutable presumption that dumping is likely to continue or recur in the
event of termination of the anti-dumping measure, the SAA (pages 888-889) and the
Department’s Sunset Policy Bulletin (section II.A.3), as further demonstrated by the
Department’s consistent practice, violate Article 11.3 of the Agreement.

B. T
HE DEPARTMENT’S SUNSET REVIEW DETERMINATION VIOLATES THE ANTI-DUMPING
AGREEMENT AND THE GATT 1994
• By conducting an expedited sunset review on the basis of Siderca’s OCTG exports to the
United States being less than 50 per cent of the total OCTG exports from Argentina to the
United States, the Department violated Articles 6.1, 6.2, 6.8, and Annex II of the Anti-
Dumping Agreement;

• By conducting an expedited sunset review, th e Department rendered a determination of
likelihood of continuation or recurrence of du mping without any analysis, in violation of
Article 11.3 of the Anti-Dumping Agreement.

• By conducting an expedited review and applying the waiver provisions to Siderca, the
Department violated Articles 6.1, 6.2, 6.8, and Annex II of the Anti-Dumping Agreement;

• By failing to provide public notice and explanati ons in sufficient detail the findings of all
issues of fact and law in the Department’s de termination to conduct an expedited review, and
the Department’s Sunset Determination, which incorporated the Department’s Issues and
Decision Memorandum by reference, the Department violated Articles 12.2 and 12.2.2 of the
Anti-Dumping Agreement;

• By failing to apply the correct standard, by failing to conduct a prospective analysis, by failing
to make a determination of likelihood of dum ping on the basis of positive evidence, the
Department’s Sunset Determination is inconsis tent with Article 11.3 of the Anti-Dumping
Agreement;

• In the alternative, if the Pa nel finds that the SAA and the Sunset Policy Bulletin are not
measures which can be challenge d under the DSU (the finding requested by the fourth item in
Section A, above), then by failing to administer in an impartial and reasonable manner US
anti-dumping laws, regulations, decisions and rulings with respect to the Department’s conduct
of sunset reviews of anti-dumping duty orders, th e United States violated Article X:3(a) of the
GATT 1994.

C. T
HE COMMISSION’S SUNSET REVIEW DETERMINATION VIOLATES THE ANTI-DUMPING
AGREEMENT
• By failing to apply to a “likely” or “probable” standard, the Commission violated Articles 3.1
and 11.3 of the Anti-Dumping Agreement;

• By failing to conduct an objective examination of the record and to base its determination on
positive evidence, the Commission violated Articles 3.1, 3.2, 3.4, 3.5, and 11.3 of the Anti-
Dumping Agreement;

• By failing to evaluate all the relevant econo mic factors and indices having a bearing on the
state of the industry, including those enumerated in Article 3.4 of Anti-Dumping Agreement,
the Commission violated Article 3.4. By failin g to assess a causal relationship between the
dumped imports and the injury to the domestic industry, the Commission also failed to satisfy
the causation requirements of Article 3.5 of the Anti-Dumping Agreement;

• By cumulatively assessing the effects of OCTG imports from Korea, Italy, Japan, and Mexico
to determine whether termination of the anti-dumping duty on Argentine OCTG imports would
be likely to lead to continuation or recurren ce of injury, the Commission violated Articles 3.3
and 11.3 of the Anti-Dumping Agreement, which preclude the use of a cumulated injury
analysis in sunset reviews; and

• In the alternative, if a cumulated injury analys is is permitted in sunset reviews, by failing to
apply the de minimis and negligibility requirements of Article 3.3 to the review of OCTG from
Argentina, the Commission violated Articles 3. 3 and 11.3 of the Anti-Dumping Agreement, as
application of either of these provisions would have precluded the Commission from
conducting a cumulated injury analysis in the case of the sunset review of OCTG from
Argentina. Finally, the Commission’s use of a cumulated injury analysis violated the “likely”
standard of Article 11.3 and resulted in an injury determina tion that was not based on positive
evidence.

D. C
ONSEQUENTIAL VIOLATIONS BY THE UNITED STATES OF THE ANTI-DUMPING AGREEMENT,
THE GATT 1994, AND THE WTO AGREEMENT
• Because the United States violated its obligati ons under the Anti-Dumping Agreement, it also
violated the provisions of Article VI of the GATT 1994, Articles 1 and 18 of the Anti-
Dumping Agreement, and Article XVI:4 of the WTO Agreement.

• By failing to ensure the conformity with the above noted laws, regulations and administrative
procedures with its WTO obligations, the United States has violated Article 18.4 of the Anti-
Dumping Agreement; and

• By failing to ensure the conformity with the above noted laws, regulations and administrative
procedures with its WTO obligations, the Unite d States has violated Article XVI:4 of the
WTO Agreement.

XI. REQUEST FOR SUGGESTIONS FROM THE PANEL ON THE MANNER IN
WHICH THE UNITED STATES SHOULD IMPLEMENT THE PANEL’S
RECOMMENDATIONS
315. Article 19.1 of the DSU provides that where a panel concludes that a measure is inconsistent
with a covered agreement, it shall recommend that the Member concerned bring the measure into
conformity with that agreement.

316. DSU Article 19.1 also provides that in addition to its recommendations, the panel may
suggest ways in which the Member concerned could implement the recommendations. Argentina
would request the Panel to make such recommendations in the present case.

317. In light of the pervasive and fundamental violations by the United States of its WTO
obligations, as demonstrated in this submission, Argentina respectfully requests that the panel suggest
that the United States implement the recommendations by terminating the anti-dumping duties on
OCTG from Argentina, and by repealing its WTO-in consistent laws, regulations, and procedures or
by amending such laws, regulations, and procedures to eliminate the WTO-inconsistencies.

318. The following essential facts provide context for this request.

319. Pursuant to Article 11.3 of the Anti-Dumpin g Agreement, the United States had a clear and
unambiguous obligation to terminate the US anti-dumping measure on Argentine OCTG, unless the
United States determined that termination of the me asure would be likely to l ead to continuation or
recurrence of both dumping and injury. As Argentina has demonstrated, the United States failed to
make the requisite determinations regarding likelihood of dumping and injury. The Department did
not conduct the required review, nor did it make the required determination of likelihood of dumping.
Instead, the Department determined Siderca to ha ve submitted an inadequate response and therefore
to have waived its participation in the sunset review. The Commission also failed to make the
required determination of likelihood of injury. In its review, the Commission failed to respect the
disciplines of Article 3, failed to conduct an objective examination, and failed to base its decision on
positive evidence. Instead, the Commission examined the cumulative effects of OCTG exports from
other countries, and determined that termination of anti-dumping duties on Argentine OCTG could
possibly (not “probably” or “likely”) cause injury at some, undefined “ reasonably foreseeable time, ”
to the US industry in the event of termination.

320. The US anti-dumping measure on Argentine OCTG should have been terminated in 2000.
However, the duties were not terminated, and have remained in place for almost nine years since their
imposition. The nearly decade-long imposition of du ties coupled with the perv asive violations of the
Anti-Dumping Agreement associated with the US s unset proceedings highlights the importance that
the panel make a specific suggestion regarding the manner in which the United States should
implement its findings.

321. In light of the obligations in Article 11.3, the chance to renew the duties in the sunset review
determination arise only at the time of the expiry of the five year period of the duty. Such a review

can be conducted only once. Additionally, as stat ed in Article 11.1, which provides context for the
obligation in Article 11.3, the duty “shall remain in force only as long as and to the extent necessary
to counteract dumping which is causing injury.” If in this context, an authority failed to conduct the
review according to the Anti-Dumping Agreement, then there is no chan ce for that Member to cure in
a subsequent proceeding. Otherwise, the principal obligation of Article 11.3 ( i.e., termination of the
duties) will be defeated because Members would alwa ys be able to continue the measure and delay
any substantive analysis until after the dispute settlement process.

322. Argentina recalls the Appellate Body’s statement in Steel from Germany : “If [a WTO
Member] does not conduct a sunset review, or, having conducted such a review, it does not make such
a positive determination, the duties must be terminated.”
284

323. Accordingly, the United States had an obli gation to terminate the anti-dumping measure on
OCTG from Argentina in order to comply with its obligation under Article 11.3. Argentina
respectfully notes that the infringement of its right to have the measure terminated after five years
cannot be cured by subjecting Siderca to additional US reviews. Argentina sees no other way than
termination of the measure for the United States to comply with its obligations under Article 11.3.
Argentina respectfully requests that the panel, in addition to making specific findings of WTO
violations, suggest that the United States implemen t the panel’s recommendations by terminating the
anti-dumping duties on OCTG from Argentina, an d by repealing or amending WTO-inconsistent
laws, regulations, procedures, and administrative provisions.

284 Appellate Body Report, Steel from Germany, para. 63.

I. INTRODUCTION
1. A centrepiece of the first submission of Arge ntina in this dispute is Argentina’s purported
study of the sunset review practice of the US Department of Commerce (“Commerce”), in which
Argentina claims to have exhaustively researched all of Commerce’s sunset review determinations
and proven empirically that Commerce maintains an “irrefutable pres umption” that a continuation or
recurrence of dumping is likely, thereby generating an injustice in 100 per cent of the 217 cases that
Argentina considered relevant.1

2. As the United States will demonstrate, when on e takes a closer look at this “study,” what one
really finds is that in 87 per cent of the 291 s unset reviews considered by Argentina – 252 reviews –
the issue of likelihood of dumping was not contested by one side or the other. So why does Argentina
make the egregiously erroneous claim that 217 Commerce sunset reviews were decided improperly?

3. The United States suspects that the answer relates to the fact that Argentina has a very weak
case. With respect to its claims concerni ng inconsistencies with Article 11.3 of the Agreement on
Implementation of Article VI of the Ge neral Agreement on Tariffs and Trade 1994 (“AD
Agreement”), Argentina is handicapped by the fact that: (1) Article 11.3 is the only provision of the
AD Agreement that sets forth the substantive requi rements for determining whether an order should
be revoked five years after its imposition; and (2) the terms of Article 11.3 are very limited. It is hard
to establish an inconsistency with an obligation when the obligation does not exist. However, the
bulk of Argentina’s case involves an attempt to do precisely that.

4. With respect to the factual issues concerning the specific determinations by Commerce and
the US International Trade Commission (“ITC”) in their sunset reviews of oil country tubular goods
(“OCTG”) from Argentina, Argentina’s situation is no better. As will be se en, these determinations
are supported by the evidence of record, and Argentina’s attempts to impugn these determinations
border on the frivolous. For example, Argentina complains that Commerce denied an Argentine
producer/exporter its rights under Articles 6.1 and 6.2 of the AD Agreement to submit information
and argument in the sunset review on OCTG. Yet, as the United States will demonstrate, the record
clearly shows that the company in question declined to take advantage of the ample opportunities
provided under US law to submit such material, and instead chose to limit itself to a mere 4-page,
double-spaced submission.

5. These are but a few examples, but they are representative of the emptiness of Argentina’s
claims. Because facts like these pose problems for Argentina, it needs something like its study to
distract from the real issues in this case, and from the fact that the United States has not acted
inconsistently with any of its oblig ations under the AD Agreement, the Marrakesh Agreement
Establishing the World Trade Organization (“WTO Agreement”), or the General Agreement on
Tariffs and Trade 1994 (“GATT 1994").

6. In terms of the structure of this submission, in Section II, the United States discusses the
procedural background of this case, particularly as it relates to various claims by Argentina that are
not within the Panel’s terms of reference. In Se ction III, the United States sets forth the factual
background to this dispute, describing the US system of sunset reviews and the particular
determinations made in OCTG from Argentina. In Section IV, the United States sets forth its request
that the Panel make preliminary rulings that various claims by Argentina are not within the Panel’s
terms of reference. Finally, in Section V, the Un ited States responds to the substantive arguments
made by Argentina in its First Submission.

1 The “study” in question is contained in Exhibit ARG-63.

II. PROCEDURAL BACKGROUND
7. Although Commerce published its continuation of the anti-dumping duty order on OCTG
from Argentina on 25 July 2001, Argentina did not request consultations with the United States until
7 October 2002.
2 A first round of consultations took place in Geneva on 14 November 2002, and a
second round of consultations took place in Washington, D.C., on 17 December 2002.

8. On 3 April 2003, Argentina requested the establishment of a panel. 3 Upon receipt of the
request, the United States immediately identified th ree categories of defects in the request. In
Section IV, below, the United States is requesting preliminary rulings with respect to two of these
defects.4

9. The first category of defects has to do with Argentina’s failure to include in its panel request
“a brief summary of the legal basi s of the complaint sufficient to present the problem clearly” with
respect to a broad range of legislative and regul atory materials that Argentina purports to be
challenging. In order to fully appreciate the nature and degree of Argentina’s failure, it is necessary to
describe the structure of the panel request in some detail.

10. The panel request begins with several descri ptive paragraphs chronicling the determinations
made by US authorities and the consultations between the parties. This introductory material is then
followed by two sections – A and B – which in turn contain several numbered paragraphs. These
numbered paragraphs collectively appear to descri be the measures Argentina is challenging and the
claims made with respect to these measures.
5

11. Section A deals with the “dumping” side of a sunset review. Section A.1 contains an “as
such” complaint about 19 USC. § 1675(c)(4) – a US statutory provision dealing with sunset reviews –
and 19 C.F.R. § 351.218(e) – a provision of the Commerce regulations dealing with sunset reviews.
Sections A.2-A.5 contain “as applied” complaints about various aspects of the determination made,
and the procedures applied, by Commerce in its sunset review of the anti-dumping duty order on
OCTG from Argentina.

12. Section B of the panel request deals with the “injury” side of a sunset review. Section B.3
contains an “as such” complaint about 19 USC. §§ 1675a(a)(1) and 1675a(a)(5), both of which are US
statutory provisions dealing with sunset reviews. Sections B.1-B.2 and B.4 contain “as applied”
complaints about various aspects of the determinatio n made by the ITC in its sunset review of the
anti-dumping duty order on OCTG from Argentina.

2 WT/DS268/1 (10 October 2002).
3 WT/DS268/2 (4 April 2003).
4 The third category of defects relates to the fact that Argentina’s panel request purported to challenge
several items that do not constitute “measures.” As explained by the United States at the meeting of the Dispute
Settlement Body (“DSB”) on 15 April 2003, these items were: (1) the Statement of Administrative Action – or
“SAA” – accompanying the Uruguay Round Agreements Act; (2) Commerce’s Sunset Policy Bulletin ; and (3)
what Argentina characterized as Commerce’s “Determination to Expedite.” See WT/DSB/M/147 (1 July 2003),
para. 33 (copy attached as Exhibit US-1). To the extent that Argentina, in its first submission, persists in
treating these items as “measures,” the United States has dealt with this defect as a substantive issue rather than
as a subject of its request for preliminary rulings.
5 As discussed below, Argentina subsequently did confirm before the DSB that its claims were
contained in Sections A and B of the panel request. With one exception, the United States is not requesting
preliminary rulings on the consistency of Sections A and B with Article 6.2 of the DSU.

13. On page 4 of the panel request, however, Sec tions A and B are followed by the following two
paragraphs:6

Argentina also considers that certain aspects of the following US laws, regulations,
policies, and procedures related to the de terminations of the Department and the
Commission are inconsistent with US WTO obligations, to the extent that any of
these measures mandate action by the Depart ment or Commission that is inconsistent
with US WTO obligations or preclude the Department or Commission from
complying with US WTO obligations:
- Sections 751(c) and 752 of the Tariff Act of 1930, as amended,
codified at Title 19 of the United States Code §§ 1675(c) and 1675a;
and the US Statement of Administrative Action (regarding the
Agreement on Implementation of GATT Article VI) accompanying
the Uruguay Round Agreements Act (the SAA), H.R. Doc. No. 103-
316, vol. 1;
- The Department's Policies Regarding the Conduct of Five-year
("Sunset") Reviews of Anti-Dumping and Countervailing Duty
Orders; Policy Bulletin, 63 Federal Regi ster 18871 (16 April 1998)
(Sunset Policy Bulletin);
- The Department's sunset review regulations, codified at Title 19 of
the United States Code of Federal Regulations § 351.218; and the
Commission's sunset review regulat ions, codified at Title 19 of the
United States Code of Federal Regulations §§ 207.60-69 (Subpart F).
Argentina considers that the Department's Determination to Expedite, the
Department's Sunset Determination, the Commission's Sunset Determination, the
Department's Determination to Continue the Order and the above mentioned US laws,
regulations, policies and procedures are inc onsistent with the following provisions of
the Anti-Dumping Agreement, the GATT 1994, and the WTO Agreement:
- Articles 1, 2, 3, 6, 11, 12, 18 and Annex II of the Anti-Dumping
Agreement;
- Articles VI and X of the General Agreement on Tariffs and Trade
(GATT) 1994; and
- Article XVI:4 of the WTO Agreement.
 (Underscoring added).

14. In the first sentence of the first quoted paragr aph on page 4, Argentina uses the word “also.”
This suggests that the WTO inconsistencies alluded to on page 4 are in addition to, and different from,
the claims set forth in Sections A and B.

15. Argentina then proceeds to assert in the first sentence that “certain aspects” of the
subsequently named laws, regulations, etc., are inconsistent with US WTO obligations “as such,”
because they either mandate WTO- inconsistent behaviour or preclude WTO-consistent behaviour.

6 For ease of reference, the United States hereafter will refer to the quoted paragraphs as “Page 4" of
the panel request, notwithstanding that portions of other paragraphs are included on page 4.

However, Argentina provides absolutely no explana tion as to how any aspect (or aspects) of these
items is WTO-inconsistent. Instead, it simply lists the items, notwithstanding the fact that each of the
items is voluminous and contains multiple requiremen ts or statements. Then, on the next paragraph
on page 4, Argentina simply lists entire articles from the AD Agreement, the GATT 1994, and the
WTO Agreement. Unfortunately for anyone trying to discern the nature of Argentina’s problems,
almost all of these WTO provisions consist of multiple paragraphs and contain multiple obligations.
Argentina then merely asserts that all of the “measures” it has identified up to that point are
inconsistent with the cited articles.

16. Argentina makes no effort to link a particular article to a particular alleged measure, or to
otherwise describe the legal basis of the complaint in order to describe the problem. There is no
explanation of the facts and circumstances descri bing the substance of the dispute accompanying
these citations to entire articles. As a result, it is impossible to discern precisely what Argentina
purports to be complaining about on page 4.

17. A second set of defects appears in Sections B. 1, B.2, and B.3 of Argentina’s panel request,
which deal with the sunset review determination of the ITC. In Sections B.1 and B.2, Argentina
alleges an inconsistency with Article 6 of the AD Agre ement in its entirety. In section B.3, Argentina
alleges an inconsistency with Artic le 3 of the AD Agreement in its entirety. Both Articles 3 and 6,
however, consist of multiple paragraphs and contain multiple obligations, and it seems implausible
that Argentina is alleging that th e ITC’s determination or the relevant provisions of the US statute are
inconsistent with each one of those obligations.
7 Significantly, elsewhere in the request, Argentina
was able to identify with precision the particular paragraphs of Articles 3 and 6 with which the US
measures allegedly were inconsistent.

18. Because of the above-noted defects, Argent ina’s panel request failed to “provide a brief
summary of the legal basis of the complaint sufficient to present the problem clearly,” as required by
Article 6.2 of the DSU. At the meeting of the DSB on 15 April 2003, the United States noted these
defects, and suggested that Argentina withdraw its panel request and submit a new request that
complied with Article 6.2 of the DSU.8

19. Instead of correcting the defects in its pane l request, Argentina attempted to explain them
away by means of a statement it made at the DSB meeting of 19 May 2003. 9 In the case of the first
defect – the ambiguity concerning Argentina’s “as su ch” challenge on page 4 of the panel request –
Argentina stated as follows: “It was Argentina’s in tention (as the panel request clearly provided) to
set forth the particular claims in the paragraphs contained in Sections A and B of the document.”10

20. Unfortunately, this attempt at clarification by Argentina did not necessarily eliminate the
confusion concerning page 4 of the panel request. For example, on page 4, Argentina refers to the
ITC’s sunset regulations and asserts that “certain aspects” of these regulations are WTO-inconsistent.
However, nowhere in any of the paragraphs cont ained in Sections A or B – the true location,
according to Argentina, of its claims – is there any reference to the ITC’s regulations. If, as Argentina
asserted before the DSB, its claims are only contai ned in Sections A and B, does this mean that
Argentina is not making any claims regarding the ITC’s regulations? Or, if Argentina is making a
claim regarding these regulations, what is the nature of that claim and where is it described in the
panel request? Put differently, if Argentina has a problem with the ITC’s regulations, what is that
problem and why is that problem not presented clearly in the panel request?

7 Indeed, as will be discussed below, in the relevant portions of its first submission, Argentina does not
assert inconsistencies with Article 3 in its entirety, and does not assert any inconsistencies with Article 6.
8 WT/DSB/M/147 (1 July 2003), paras. 30-33 (copy attached as Exhibit US-1).
9 WT/DSB/M/150 (22 July 2003) (copy attached as Exhibit US-2).
10 Id., para. 32.

21. With respect to the second defect, Argentina did not attempt to argue that it was possible to
discern from the panel request the nature of Argentina’s problem. Instead, it argued that a US panel
request in an earlier dispute allegedly shared the same shortcomings as Argentina’s request. 11 In
addition, it argued that the questions presented by Argentina to the United States during the
consultations somehow should have informed the Unit ed States of the nature of the claims embodied
in Argentina’s general references to Articles 3 and 6 of the AD Agreement.

22. Because Argentina refused to correct the defi ciencies in its panel request, the DSB had no
choice under the negative consensus rule but to establish a panel on the basis of that request at its
19 May meeting.12

23. Argentina’s First Submission, submitted on 15 October 2003, added to the list of Argentina’s
procedural errors by raising matters that were not included in its panel request. These matters are as
follows:

− The claim in Section VII.B.1 of Argentina’s first submission that Commerce’s sunset review
practice, both as such and as applied, is inconsistent with Article 11.3 of the AD Agreement.

− The claim in Section VII.B.2 of Argentina’s first submission that, taken together, the US
sunset statutory provisions, the SAA, and the Sunset Policy Bulletin are, as such, inconsistent
with Article 11.3 of the AD Agreement.

− The claim in Section VII.E of Argentina’s first submission that Commerce sunset reviews
collectively – not the sunset review on OCTG fr om Argentina – are inconsistent with Article
X:3(a) of GATT 1994.

− The claim in Section VIII.C.2 of Argentina’s fi rst submission that the ITC’s application of
19 USC. §§ 1675a(a)(1) and (5) in the sunset review of OCTG from Argentina was
inconsistent with Articles 11.3 and 3 of the AD Agreement.

− The claim in Section IX of Argentina’s first submission that the US measures identified by
Argentina are inconsistent with Article VI of the GATT 1994, Articles 1 and 18 of the
AD Agreement, and Article XVI:4 of the WTO Agreement.

III. FACTUAL BACKGROUND
24. Some of Argentina’s claims purport to relate to the US sunset review system, as such, while
other claims relate to determinations made by Co mmerce and the ITC in the sunset review on OCTG
from Argentina. Other claims appear to relate to th e US sunset review system as applied generally.
In order to facilitate the Panel’s understanding of the issues raised, th e United States first will provide
an overview of how the United States conducts sunset reviews, followed by a discussion of the
specific sunset review determination involving OCTG from Argentina.

11 Id., para. 33.
12 Id., para. 38.

A. S
UNSET REVIEWS UNDER US LAW
1. The Statute13
25. In 1995, the United States amended its anti-d umping duty statute to include provisions for the
conduct of five-year, or so-called “sunset,” reviews of anti-dumping duty measures, including anti-
dumping duty orders. 14 Commerce and the ITC each conduct sunset reviews pursuant to
sections 751(c) and 752 of the Act. 15 Commerce has the responsibility for determining whether
revocation of an anti-dumping duty order would be likely to lead to continuation or recurrence of
dumping.16 The ITC conducts a review to determine whether revocation of an anti-dumping duty
order would be likely to lead to continuation or recurrence of material injury.

26. Under section 751(d)(2) of the Act, an anti-dumping duty order must be revoked after five
years unless Commerce and the ITC make affirmative determinations that dumping and injury would
be likely to continue or recur.17

(a) Statutory Provisions Related to Commerce’s Determination
27. Under the statute, Commerce automatically initiates a sunset review on its own initiative
within five years of the date of publication of an anti-dumping duty order. 18 Thereafter, a review can
follow one of three basic paths.

28. First, if no domestic interested party resp onds to the notice of initiation, Commerce will
revoke the order within 90 days after the initiation of the review.19

13 This section provides a general overview of the US statutory provisions relating to sunset reviews.
To be clear, however, the only provisions of the US statute that Argentina is challenging “as such” and that are
within the Panel’s terms of reference are sections 751(c)(4), 752(a)(1), and 752(a)(5) of the Tariff Act of 1930,
as amended.
14 The US anti-dumping duty and countervailing duty statute is found in title VII of the Tariff Act of
1930, as amended (“the Act”), 19 USC. 1671 et seq. Title II of the Uruguay Round Agreements Act (“URAA”),
Pub. L. No. 103-465, 108 Stat. 4809 (1994), amended title VII in order to bring it into conformity with US
WTO obligations. Concurrent with the passage of the URAA, Congress approved a “Statement of
Administrative Action” (or “SAA”). H.R. Doc. No. 316, 103d Cong., 2d Sess., Vol. 1 (1994). The United
States has attached as Exhibit US-11, the portions of the SAA dealing specifically with sunset reviews. The
SAA itself is not a statute or law, but instead is legislative history, albeit legislative history that provides
authoritative interpretative guidance in respect of the statute to which it relates. See United States - Measures
Treating Export Restraints as Subsidies , WT/DS194/R, Report of the Panel, adopted 23 August 2001, paras.
8.99-100 (discussing the status in US law of the SAA) [hereinafter “ Export Restraints ”]. As demonstrated
below, the SAA itself is not within the terms of reference of this Panel, but could properly be considered by the
Panel for purposes of interpreting, as a matter of fact, the meaning of those statutory provisions that Argentina is
challenging “as such” and that are within the Panel’s terms of reference; i.e., sections 751(c)(4), 752(a)(1), and
752(a)(5) of the Act.
The United States also notes that the term “anti-dumping duty order” is the US law equivalent of the
term “definitive duty” in the AD Agreement.
15 Sections 751(c) and 752 of the Act (Exhibit ARG-1).
16 Under the US anti-dumping duty law, the term “revocation” is equivalent to the concept of
“termination” and “expiry of the duty” as used in Article 11.3 of the AD Agreement.
17 Section 751(d)(2) of the Act (Exhibit ARG-1).
18 Sections 751(c)(1) and (2) of the Act (Exhibit ARG-1); see also 19 C.F.R. 351.218(c)(1) (Exhibit
ARG-1).
19 Section 751(c)(3)(A) of the Act (Exhibit ARG-1). The term “domestic interested parties” is a
shorthand expression for the interested parties defined in section 771(9)(C)-(G) of the Act. These are the types
of interested parties who are eligible to file a petition for the imposition of anti-dumping duties.

29. Second, if the responses to the notice of in itiation are “inadequate,” Commerce will conduct
an expedited sunset review and issue its final dete rmination within 120 days after the initiation of the
review.20

30. Third, if the responses to the notice of in itiation are adequate, Commerce will conduct a full
sunset review and issue its final determination wi thin 240 days after the initiation of the review. 21
Commerce normally will consider th e response to the notice of initiatio n to be adequate if it receives
complete responses from a domestic interested part y and respondent interested parties accounting on
average for more than 50 per cent of the total exports of subject merchandise.22

31. In both expedited and full sunset reviews, re spondent interested par ties may elect to waive
participation in the sunset review conducted by Commerce, without pr ejudice to their participation in
the sunset review conducted by the ITC.
23 The purpose of this procedure is to avoid forcing
respondent interested parties to in cur the time and expense of partic ipating in the Commerce side of a
sunset review when they wish only to contest the likelihood of continuation or recurrence of injury on
the ITC side.

32. As mentioned above, Commerce has the respons ibility of determining whether revocation of
an anti-dumping duty order would be likely to lead to continuation or recurrence of dumping. If
Commerce’s determination is negative – i.e., if Commerce finds that there is no such likelihood –
Commerce must revoke the order.
24 If Commerce’s determination is affirmative, however,
Commerce transmits its determination to the ITC, along with a determination regarding the magnitude
of the margin of dumping that is likely to prevail if the order is revoked.25

(b) Statutory Provisions Related to the ITC’s Determination
33. Section 751(c) of the Act requires the ITC to conduct a review no later than five years after
issuance of an order or the suspension of an inves tigation, or a prior review, and to determine whether
revocation of the order or termination of the su spended investigation would likely lead to the
continuation or recurrence of material injury. 26 Section 752(a)(1) of the Act specifically addresses
the ITC’s determination in a section 751(c) review . This provision states that “the ITC shall
determine whether revocation of an order, or term ination of a suspended investigation, would be
likely to lead to continuation or recurrence of mate rial injury within a reasonably foreseeable time.” 27
More generally, section 752(a) of the Act specifie s several factors for the ITC’s consideration in
making determinations in five-year reviews, including the likely volume, likely price effects and
likely impact of subject imports on the domestic industry if the anti-dumping duty order is revoked.

34. Section 752(a)(7) grants the ITC discretion to en gage in a cumulative analysis if: (1) reviews
are initiated on the same day; and (2) imports would be likely to compete with one another and with
the domestic like product in the United States mark et. It further provides that the ITC shall not
cumulate imports from a country if those imports are likely to have no discernible adverse impact.

20 Section 751(c)(3)(B) of the Act (Exhibit ARG-1).
21 Section 751(c)(5)(A) of the Act (Exhibit ARG-1).
22 19 C.F.R. 351.218(e)(1) (Exhibit ARG-3). The term “respondent interested parties” is a shorthand
expression for the interested parties defined in section 771(9)(A)-(B) of the Act. These parties typically consist
of foreign manufacturers, producers or exporters, or the US importer of subject merchandise, or an association
of such persons.
23 Section 751(c)(4)(A) of the Act (Exhibit ARG-1).
24 Section 751(d)(2) of the Act (Exhibit ARG-1).
25 Section 752(c) of the Act (Exhibit ARG-1).
26 Section 751(c) (Exhibit ARG-1).
27 Section 752(a)(1) (Exhibit ARG-1).

2. The Regulations
(a) Commerce Regulations
35. In 1997, following the enactment of the URAA, Commerce revised its anti-dumping and
countervailing duty regulations so as to bring them into conformity with the amended statute.
28 These
revised regulations contained substantive provisions with respect to anti-dumping proceedings, as
well as procedural provisions applicable to both anti-dumping and countervailing duty proceedings.
These regulations, however, contained minimal guidanc e with respect to sunset reviews, essentially
setting forth only the time frame for initiation and completion of such reviews.

36. In 1998, in anticipation of the over 300 pre -URAA orders (referred to as “transition orders”)
29
eligible for revocation by 1 January 2000, Commer ce issued additional regulations addressing in
greater detail the procedures for participation in, and conduct of, sunset reviews. 30 These Sunset
Regulations created a framework both to implement statutory requirements and to provide a clear,
transparent process. Inter alia, they specified the information to be provided by parties participating
in a sunset review31 and the deadlines for required submissions.32

37. The Sunset Regulations describe specifically th e information required to be provided by all
interested parties in a sunset review.
33 In addition, the regulations in vite parties to submit, with the
required information, “any other relevant info rmation or argument that the party would like
[Commerce] to consider.” 34 These regulations constitute the standard request for information in
sunset reviews and function as the standard questionnaire.

38. With respect to deadlines for required submissions, the Sunset Regulations provide that
substantive responses to a notice of initiation are due 30 days after the date of publication in the
Federal Register of the notice of initiation.
35 Rebuttals to substantive responses are due five days
after the date the substantive response is filed. 36 The regulations also state that Commerce normally
will not accept or consider any additional informatio n from a party after the time for filing rebuttals
has expired.37

39. Commerce’s regulations also provide for “expedited” sunset review procedures where the
domestic interest parties choose not to participate, or where substantive responses received from
respondent interested parties are inadequate for Commerce’s use in a full sunset proceeding.38 Where
domestic interested parties choose not to participate, the regula tions provide that Commerce will
make a negative likelihood determination and revoke the order.39 Where the foreign interested parties

28 Where, as in the case of the US anti-dumping duty law, Congress entrusts an administrative agency
with the administration of a statute, it is common for the agency to promulgate regulations that elaborate on, or
clarify, the statute. While regulations are subordinate to the statute, they typically have the force of law if
validly promulgated and consistent with the statute.
29 Section 751(c)(6)(C) of the Act (Exhibit ARG-1).
30 Procedures for Conducting Five-Year (“Sunset”) Reviews of Anti-Dumping and Countervailing
Duty Orders (“Sunset Regulations”), 63 FR 13516 (20 March 1998) (codified at 19 C.F.R. part 351) (Exhibit
US-3).
31 19 C.F.R. 351.218(d)(3) (Exhibit ARG-3).
32 19 C.F.R. 351.218(d)(3)-(4) (Exhibit ARG-3).
33 19 C.F.R. 351.218(d)(1)-(4) (Exhibit ARG-3).
34 19 C.F.R. 351.218(d)(3)(iv)(B) (Exhibit ARG-3).
35 19 C.F.R. 351.218(d)(3)(i) (Exhibit ARG-3).
36 19 C.F.R. 351.218(d)(4) (Exhibit ARG-3).
37 19 C.F.R. 351.218(d)(4) (Exhibit ARG-3).
38 19 C.F.R. 351.218(d)(2) (Exhibit ARG-3).
39 19 C.F.R. 351.218(d)(1)(iii) (Exhibit ARG-3).

fail to provide adequate resp onses, the regulations provide that Commerce will examine the
information on the record of the sunset review proceeding and normally will base its likelihood
determination on the basis of facts available prior to the determination to expedite the review – the
dumping margins from the original investigation and any administrative reviews, as well as any
information supplied by the interested parties.40

40. The purpose of the “expedited” procedures is to provide all interested parties the option of
concentrating their efforts on the ITC’s injury proceeding, should they believe that such an approach
would be in their best interests. Respondent interest ed parties may opt to file a formal waiver of their
right to participate in the proceeding or, alternatively, they simply may choose not to respond to the
notice of initiation. In addition, Commerce’s regu lations also provide the opportunity for interested
parties to comment on the adequ acy of the substantive and rebuttal responses and to address the
appropriateness of conducting an expedited sunset review.
41

(b) ITC Regulations
41. The ITC has its own set of regulations pertaining to sunset reviews, which are set forth at
19 C.F.R. 207.60-69.42 With respect to institution of a suns et review, under its regulations, the ITC
initially determines whether to conduct a full review (which would generally include a public hearing,
the issuance of questionnaires, and other procedures) or an expedited review. First, the ITC
determines whether individual responses to the noti ce of institution are ade quate. Second, based on
those responses deemed individually adequate, the ITC determines whether the collective responses
submitted by two groups of interested parties – dome stic interested parties (producers, unions, trade
associations, or worker groups), and respondent interested parties (importers, exporters, foreign
producers, trade associations, or country governments) – demonstrate a sufficient willingness among
each group to participate and provide information requested in a full review.
43 In its sunset review on
OCTG, the ITC conducted a full review.

42. As demonstrated below in connection with th e United States’ request for preliminary rulings,
even though Argentina refers to them cryptically in its panel request, the ITC regulations are not
within the Panel’s terms of reference, and Argentina does not advance any claims concerning them in
its First Submission.

3. Commerce’s Sunset Policy Bulletin
44
43. In April 1998, Commerce issued a po licy bulletin related to sunset reviews. 45 Commerce
issued the policy bulletin to appris e interested parties of its antici pated methodologies and to assist
Commerce staff in their conduct of sunset reviews. As described in the Bulletin, Commerce normally
will determine that revocation of an anti-dumping or der is likely to lead to continuation or recurrence
of dumping where (1) dumping continued at any level above de minimis after the issuance of the

40 19 C.F.R. 351.308(f) (Exhibit US-3).
41 19 C.F.R. 351.309(e) (Exhibit US-3).
42 A copy of the ITC’s sunset review regulations is attached as Exhibit US-4.
43 19 C.F.R. 207.62(a) (Exhibit US-4).
44 The United States would like to make it clear that the following discussion of the Sunset Policy
Bulletin is designed merely to provide the Panel with a complete picture of the US sunset review process. As
demonstrated below, the Bulletin is not within the Panel’s terms of reference, is not a “measure,” and, even if it
were considered a measure, is not a mandatory measure and, thus, cannot be challenged “as such.”
45 Policies Regarding the Conduct of Five-Year (“Sunset”) Reviews of Anti-Dumping and
Countervailing Duty Orders; Policy Bulletin (“Sunset Policy Bulletin”), 63 FR 18871 (16 April 1998) (Exhibit
ARG-35). Commerce and other administrative agencies will sometimes issue informal documents such as
policy bulletins when they wish to provide guidance to the public and agency staff, but are not yet in a position
to make such guidance binding and mandatory by promulgating regulations.

order; (2) imports of the subject merchandise ceased after issuance of the order; or (3) dumping was
eliminated after the issuance of the order and im port volumes for the subject merchandise declined
significantly.

44. The Bulletin also provides guidance as to how to determine the magnitude of the dumping
margin that would be likely to prevail if the anti- dumping order were revoked. Commerce normally
will select the margins from the investigation, becaus e these margins are the only calculated rates that
reflect the behaviour of exporters without the discipline of an order in place.
46 Commerce may select
a more recently calculated margin for a particul ar company if dumping margins declined or if
dumping was eliminated after the issuance of the order and import volumes remained steady or
increased.
47

45. The Sunset Policy Bulletin provides a sketch of what Commerce, given particular factual
scenarios, will “normally” do. It is not binding on either Commerce or private parties, but instead
describes how Commerce anticipated acting on a regular, standard or ordinary basis. The Sunset
Policy Bulletin does not suggest that Commerce will always find a likelihood of continuation or
recurrence given the factual scenarios above.

B. CERTAIN OCTG FROM ARGENTINA
1. The Anti-Dumping Duty Investigation Order
46. On 28 June 1995, Commerce published its fi nal affirmative anti-dumping duty determination
on OCTG from Argentina. 48 In its final determination, Commerce found that the Argentine producer
of OCTG that it had investigated – Siderca S. A.I.C. (“Siderca”) – was dumping the subject
merchandise in the United States. For Siderca, Commerce calculated a dumping margin of
1.36 per cent based on Siderca’s sales to the United States during the period of investigation. Also,
based on Siderca’s dumping margin, Commerce calculated an “all others” duty rate applicable to
OCTG from other Argentine sources of OCTG.
49

47. On 10 August 1995, the ITC published notice of its final affirmative injury determination
involving OCTG from Argentina. 50 On 11 August 1995, Commerce issued an anti-dumping duty
order on certain OCTG from Argentina.51

48. No administrative reviews of the anti-dumping duty order on certain OCTG from Argentina
were requested or conducted prior to the sunset review.

2. The Sunset Review and Determination
(a) Commerce’s Determination of Likelihood of Continuation or Recurrence of Dumping
49. On 3 July 2000, Commerce published its notice of initiation of the sunset review of the anti-
dumping duty order on certain OCTG from Argentina.
52 In the notice, Commerce, as is its normal

46 Sunset Policy Bulletin, 63 FR at 18873 (Exhibit ARG-35).
47 Id.
48 Final Determination of Sales At Less Than Fair Value: Oil Country Tubular Goods from Argentina,
60 Fed. Reg. 33539 (28 June 1995) (“Commerce Investigation Final”) (Exhibit ARG-26).
49 Id. at 33550.
50 60 Fed. Reg. 40855 (Exhibit US-5). The full version of the ITC’s opinion was published as a
separate document in USITC Pub. 2911 (August 1995).
51 Anti-Dumping Duty Order: Certain Oil Country Tubular Goods From Argentina, 60 Fed. Reg. 41055
(11 August 1995) (“Anti-Dumping Duty Order”) (Exhibit US-6).

practice, highlighted the deadline for filing a s ubstantive response in the sunset review and the
information that was required to be contained in the response. 53 Commerce also explicitly referred
parties to the applicable regulation concerning requests for an extension of filing deadlines.54

50. On 2 August 2000, Siderca and domestic interested parties 55 filed their substantive responses.

51. In its substantive response, Siderca did not state that it would not export OCTG to the United
States if the order were revoked, nor did it state th at it would not dump OCTG in the United States if
the order were revoked. 56 Instead, Siderca merely argued that the dumping margin from the original
investigation was not large enough to support a determ ination that dumping was likely to continue or
recur in the absence of the duty. Specifically, Siderca argued that its 1.36 per cent dumping margin
from the investigation wa s below the 2 per cent de minimis standard of Article 5.8 of the AD
Agreement, which Siderca assert ed applied to sunset reviews.
57 Siderca also stated that it believed
that it was the only producer of OCTG in Argentina. 58 It acknowledged that it did not export OCTG
to the United States during the five-year period pre ceding the sunset review, but did not assert that
there were no other exporters of OCTG from Argentina to the United States. 59 Siderca did not
provide any additional evidence or argument for Commerce’s consideration on the likelihood issue in
its substantive response. In addition, Commerce did not receive any subs tantive responses from
Argentine exporters of OCTG during the sunset review, nor did any other Argentine exporter supply
information for inclusion in Siderca’s substantive response.

52. On 7 August 2000, Commerce received rebuttal comments on behalf of domestic interested
parties in response to Siderca’s comments. Sider ca did not submit a substantive rebuttal brief or any
other factual information or legal argument in the sunset review.

53. On 22 August 2000, Commerce determined to conduct an expedited sunset review because it
had not received a complete substantive response from exporters accounting for more than 50 per cent
of Argentine exports to the United States during the relevant period.
60 Siderca did not comment on
Commerce’s determination to expedite the sunset review, notwithstanding that it had a right to do so
under Commerce’s regulations.61

52 Initiation of Five-year (“Sunset”) Reviews of Anti-Dumping and Countervailing Duty Orders or
Investigations of Oil Country Tubular Goods (“Sunset Initiation”), 65 FR 41053, 41054 (3 July 2000) (Exhibit
ARG-44).
53 Sunset Initiation . The information requirements concerning substantive responses to notices of
initiation of sunset reviews are set forth at 19 C.F.R. 351.218(d)(3) (Exhibit ARG-3).
54 Sunset Initiation. 19 C.F.R. 351.302(c) provides that a party may request an extension of a specific
time limit. 19 C.F.R. 351.302(b) provides that unless expressly precluded by statute, Commerce may, for good
cause, extend any time limit established by its regulations. The US anti-dumping duty statute does not contain
deadlines for submission of information in a sunset review. A copy of 19 C.F.R. 351.302 is attached as Exhibit
US-7.
55 The domestic interested parties consisted of Bethlehem Steel Corporation, IPSCO Tubulars, Inc.,
Lone Star Steel Company, Maverick Tube Corporation, Newport Steel and Koppel Steel Divisions of NS
Group, Grant-Prideco, North Star Steel Ohio, and US Steel Group, a unit of USX Corporation.
56 Exhibit ARG-57.
57 Exhibit ARG-57, page 3.
58 Id.
59 Id., page 4.
60 “Commerce Memorandum on Adequacy of Response to Notice of Initiation,” dated 22 August 2000
(Exhibit ARG-50); see also 19 C.F.R. 351.218(e)(1)(ii)(A)-(B) (Exhibit ARG-3).
61 19 C.F.R. 351.309(e) (Exhibit US-3).

54. On 7 November 2000, Commerce published its final expedited sunset determination, finding
that continuation or recurrence of dumping was likely.
62 Commerce found that dumping had
continued over the life of the order because there had been no administrative reviews and the
dumping margin from the original investigation was the only indicat or available to Commerce. Based
on its findings that there was no decline in dumping margins and that the volume of imports had
decreased after issuance of the order and remained at below pre-order levels, Commerce determined
that there was a likelihood of continuation or recurrence of dumping.63

55. As required under US law, Commerce also repo rted to the ITC the magnitude of the margin
of dumping likely to preva il if the order were revoked. 64 In deciding the magnitude of the margin
likely to prevail to report to the ITC, Commerce c onsidered the fact that import volumes had declined
over the period preceding the sunset review. Comme rce determined to report to the ITC the margins
of 1.36 per cent calculated in the original investigation for Siderca and “all others,” because they were
the only margins indicative of exporter behaviour without the discipline of an order in place.65

(b) The ITC’s Determination of Likelihood of Continuation or Recurrence of Injury
56. In its final determination in the original investigation, the ITC made separate injury
determinations for the two types of OCTG (casing and tubing and drill pipe), because it found these to
be separate domestic like products.66

57. On 3 June 2000, the ITC instituted sunset reviews, 67 and on 25 October 2000, decided to
conduct full reviews to determine whether revocatio n of the anti-dumping and countervailing orders
on casing and tubing from Argentina, Italy, Japan, Korea, and Mexico, and on drill pipe from
Argentina, Italy and Mexico would likely lead to continuation or recurrence of material injury.68

58. On 10 July 2001, the ITC published notice of its final determination in the sunset review, and
issued its full opinion in a separate publication. 69 The ITC determined that revocation of the order on
drill pipe from Japan was likely to lead to conti nuation of material injury within a reasonably
foreseeable time, but that revocation of the orde rs on drill pipe from Mexico and Argentina was not
likely to lead to continuation or recurrence of mate rial injury within a reasonably foreseeable time.
As a result, the anti-dumping duty orders on drill pipe from Mexico and Argentina were revoked.

59. With respect to casing and tubing, the ITC dete rmined to evaluate the effects of subject casing
and tubing imports from Mexico, Argentina, Italy, Japan and Korea on a cumulated basis.
70

60. The ITC identified a number of conditions of competition as relevant to its sunset review,
including (as most relevant to this dispute) that:

− The United States is the largest OCTG market in the world.71

62 Final Results of Expedited Sunset Reviews: Oil Country Tubular Goods From Argentina, et al.
(“Commerce Sunset Final ”), 65 FR 66701 (7 Nov. 2000) (Exhibit ARG-46), and accompanying Decision
Memorandum (“Commerce Sunset Final Decision Memorandum”) (Exhibit ARG-51).
63 Commerce Sunset Final Decision Memorandum, page 5 (Exhibit ARG-51)
64 Id., pages 6-7; see also section 752(c)(3) of the Act (Exhibit ARG-1).
65 Commerce Sunset Final Decision Memorandum, page 7 (Exhibit ARG-51).
66 See Exhibit US-5.
67 See Exhibit ARG-45.
68 65 Fed. Reg. 63889 (Exhibit US-8).
69 The ITC’s notice was published at 66 Fed. Reg. 35997 (Exhibit US-9), and its full opinion was
published as Oil Country Tubular Goods from Argentina, Italy, Japan, Korea, and Mexico , USITC Pub. 3434,
Inv. Nos. 701-TA-364, 731-TA-711, and 713-716 (June 2001) (Exhibit ARG-54) [hereinafter “ITC Report”].
70 ITC Report at 10-14.

− Based in part on rising oil and gas prices, which appeared to be driven by long-term factors,
the ITC found demand for casing and tubing to be currently strong and to be projected to
remain strong in the reasonably foreseeable future. The ITC noted, however, that the
volatility of the forces affecting oil and gas su pply and demand globally made such forecasts
difficult.72

− Production facilities in subject countries and in the United States produced a variety of
products in addition to OCTG. The ITC found that producers could easily shift production
away from other tubular products toward production of OCTG and vice versa. The ITC also
found that OCTG commanded among the highe st prices among tubular products, giving
producers an incentive to make as much OCTG as possible in relation to other products.73

− The ITC noted the consolidation of five foreign producers of seamless casing and tubing (four
of which were located in subject countries) in to the Tenaris Alliance. Tenaris operated as a
unit, submitting a single bid for OCTG contracts, and its customer base included large multi-
national oil and gas companies that had operations in the United States.74

61. Against that background, the ITC considered the evidence gathered in the reviews. It noted
that during the original period of investigation, subject imports of casing and tubing rose from 1992 to
1994. The ITC explained that after the orders went into effect subject imports decreased but remained
a factor in the US market. The ITC concluded that the current import volume and market share of
subject imports were substantially below the levels of the original investigation, but that this likely
reflected the restraining effects of the orders.
75

62. The ITC explained that the volume of subject imports would likely increase significantly if
the orders were revoked. Because it found that fo reign casing and tubing producers could shift with
relative ease between production of casing and tubi ng and production of other pipe and tube products,
the ITC considered foreign producers’ operations with respect to casing and tubing and with respect to
all pipe and tube products produced on the same machinery and equipment as casing and tubing.76

63. The ITC concluded that there was substantial available capacity in the subject countries for
increasing exports of casing and tubing to the United States. The ITC explained that producers had
incentives to devote more of their productive ca pacity to producing and shipping more casing and
tubing to the US market. The ITC considered Tenaris’ assertion that its preference to sell directly to
end-users would limit its participation in the US market if the orders were revoked. The ITC
explained that Tenaris was 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. It noted that Tenaris sought
worldwide contracts with oil and gas companies, and that many of Tenaris’ existing customers were
global oil and gas companies with operations in the United States. While the Tenaris companies
sought to downplay the importance of the US market, they acknowledged that it was the largest
market for seamless casing and tubing in the world. Given Tenaris’ global focus, the ITC found “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.”77

71 ITC Report at 15.
72 ITC Report at 15.
73 ITC Report at 16.
74 ITC Report at 16.
75 ITC Report at 17.
76 ITC Report at 17.
77 ITC Report at 18-19.

64. The ITC explained a second incentive for producers of the subject merchandise to devote
more capacity to producing casing and tubing for the US market. Casing and tubing were among the
highest valued pipe and tube products, generating among the highest profit margins. Accordingly,
producers generally had an incentive, where possibl e, to shift production in favor of these products
from other pipe and tube products that were manufactured on the same production lines.
78

65. A third incentive identified by the ITC was th at prices for casing and tubing on the world
market were significantly lower than prices in th e United States. The ITC considered respondents’
arguments that the domestic industry’s claims of price differences were exaggerated, but it concluded
that there was on average a difference sufficient to create an incentive for subject producers to seek to
increase their sales of casing and tubing to the United States.
79

66. The fourth incentive was that producers and exporters in the subject countries faced import
barriers in other countries and on other pipe products (produced in the same facilities) in the United
States. Finally, the ITC found that industries in at least some of the subject countries depended on
exports for the majority of their sales. Japan and Korea, in particular, had very small home markets
and depended nearly exclusively on exports.80

67. On these bases, the ITC concluded that, in the absence of the orders, the likely volume of
cumulated subject imports, both in absolute te rms and as a share of the US market, would be
significant.81

68. In evaluating potential price effects, the ITC first reviewed the price effects findings it made
in the original investigation, which reflected conditions before the orders were imposed. It found that
the domestic and imported products were generally substitutable and that price was one of the most
important factors in purchasing decisions. It concluded that, despite mixed evidence as to instances of
underselling and overselling, underselling by subject imports was significant.
82

69. The ITC also found in the original investigations that cumulated subject imports suppressed
domestic prices to a significant degree, despite the unclear trend in domestic and import prices. The
ITC found that the significant volumes of casing and tubing available from the cumulated subject
countries effectively prevented domestic producer s from raising prices, even though they were
experiencing high manufacturing costs. Because imported and domestic casing and tubing were
relatively close substitutes, changes in relative pri ces were likely to cause purchasers to shift among
supply sources. As the ITC noted, purchasers repeatedly stated that subject imports exerted
downward pressure on domestic prices.83

70. Turning to the evidence gathered in the reviews, the ITC found that the trend in prices of US-
made casing and tubing since 1995 had varied by pr oduct. It noted that for most products domestic
prices peaked in 1998, fell significantly in 1999, then rebounded in 2000. The ITC also found that
direct selling comparisons were limited, because the subject producers had a limited presence in the
US market during the period of review. Neverthele ss, it found that the few direct comparisons that
could be made indicated that subj ect casing and tubing generally undersold the domestic like product,
especially in 1999 and 2000.84

78 ITC Report at 19.
79 ITC Report at 19-20.
80 ITC Report at 20.
81 ITC Report at 20.
82 ITC Report at 20-21.
83 ITC Report at 21.
84 ITC Report at 21.

71. The ITC also noted that subject imports were highly substitutable for domestic casing and
tubing, and that price was a very important factor in purchasing decisions. Accordingly, the ITC
found that the increases in subject import sales vo lume that were likely to occur would be achieved
through lower prices.85

72. The ITC found that in the absence of the orders, casing and tubing from Mexico, Argentina,
Italy, Japan and Korea likely would compete on the ba sis of price in order to gain additional market
share. The ITC concluded that “such price-based competition by subject imports likely would have
significant depressing or suppressing effects on the prices of the domestic like product.”86

73. The ITC reviewed its impact findings from the original investigation, which reflected
conditions prior to the imposition of the orders. Th e adverse impact of the cumulated subject imports
in the original determinations was reflected in the poor operating performance of the domestic
industry (despite a sharp increase in US consumption) and in the decline in market share.
87

74. The ITC further found that the large volumes of cumulated subject imports, which purchasers
generally viewed as good substitutes for the domest ic product, were inhibiting the domestic industry
from increasing market share and from raising prices. The ITC thus found in the original
investigations that suppliers had to compete fo r market share and that the lowest price would
generally prevail. In addition, the ITC determin ed that the adverse imp act of cumulated subject
imports was reflected in the inability of the domestic industry to raise prices sufficiently to cover costs
between 1992 and 1994.
88

75. With regard to the evidence gathered during the reviews, the ITC noted that the current
condition of the domestic industry was positive, that the industry had recovered after the orders were
imposed, and that it appeared to have benefited from the discipline imposed by the orders. The ITC
also noted that the industry’s performance indicators rose and fell with the volatile swings in demand.
It found that, on balance, the domestic industry’s condition had improved since the orders went into
effect, as reflected in most indicators over the peri od reviewed, and it did not find the industry to be
currently vulnerable.89

76. The ITC further found, however, for the reas ons previously given, that revocation of the
orders likely would lead to a significant increase in the volume of subject imports, which likely would
undersell the domestic like product and significantl y depress or suppress the domestic industry's
prices. With regard to demand, the ITC noted that in the original investigations, subject imports
captured market share and caused price effects despite a significant increase in apparent consumption
in 1993 and 1994 as compared to 1992. In these reviews, it found that, despite strong demand
conditions in the near term, a si gnificant increase in subject im ports would likely have negative
effects on both the price and volume of the domes tic producers’ shipments. The ITC found further
that these developments likely would have a significant adverse impact on the production, shipments,
sales, market share, and revenues of the domestic i ndustry. As the ITC also found, this reduction in
the domestic industry's production, shipments, sales, market share, and revenues would result in the
erosion of the domestic industry's profitability, as well as its ability to raise capital and make and
maintain necessary capital investments.
90

85 ITC Report at 21.
86 ITC Report at 21.
87 ITC Report at 20-21.
88 ITC Report at 21-22.
89 ITC Report at 22.
90 ITC Report at 22.

77. On this basis, the ITC determined that revo cation of the anti-dumping and countervailing duty
orders on imports of casing and tubing from Mexi co, Argentina, Italy, Korea and Japan would be
likely to lead to the continuation or recurrence of material injury to the domestic industry in the
reasonably foreseeable future.
91

(c) Notice of Continuation of the Order
78. On 15 December 2000, the United States published notice of the continuation of the anti-
dumping duty order on certain oil country tubular goods from Argentina based on the determinations
by Commerce and the ITC finding likelihood of continuation or recurrence of dumping and injury,
respectively.92

IV. REQUEST FOR PRELIMINARY RULINGS
A. INTRODUCTION
79. The Appellate Body has stated that: “A de fending party is entitled to know what case it has
to answer, and what violations have been allege d so that it can begin preparing its defence.” 93
According to the Appellate Body: “This requirement of due process is fundamental to ensuring a fair
and orderly conduct of dispute settlement proceedings.”94

80. In this dispute, this fundamental due process requirement has been denied the United States
for several reasons. First, Argentina’s request for the establishment of a panel failed to comply with
the requirements of Article 6.2 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes (“DSU”). Specifically, with respect to a major portion of Argentina’s panel
request, Argentina failed to “provide a brief summary of the legal basis of the complaint sufficient to
present the problem clearly.” As a result, the United States could not discern from the panel request
“what case it has to answer, and what violations have been alleged,” and was unable to “begin
preparing its defence.”

81. As explained earlier, there are essentially two categories of defects in Argentina’s panel
request that made it impossible for the United States to discern the nature of Argentina’s problems.
The United States raised both of these defects before the DSB. With respect to the defect concerning
Sections B.1-B.3 of the panel request, Argentina simply refused to acknowledge that the defects
existed. The United States requests that the Panel find that the claims falling within this category are
not within the Panel’s terms of reference due to Arge ntina’s failure to comply with Article 6.2 of the
DSU.

82. In the case of the defects concerning page 4, Argentina did appear to acknowledge that there
was a problem, and offered before the DSB an interp retation of its panel request, stating essentially
that portions of its panel request should be disregarded. The United States, therefore, requests that the
Panel accept Argentina’s proposed clarification at face value and find that the claims falling within
this category are not within the Panel’s terms of reference due to Argentina’s failure to comply with
Article 6.2 of the DSU.

91 ITC Report at 22-23.
92 Continuation of Anti-Dumping and Countervailing Duty Orders on Oil Country Tubular Goods
From Argentina, Italy, Japan, Korea, and Mexico, and Partial Revocation of Those Orders from Argentina and
Mexico With Respect to Drill Pipe, 66 Fed. Reg. 38630 (25 July 2001) (Exhibit US-10).
93 Thailand - Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel H-
Beams from Poland , WT/DS122/AB/R, Report of the Appellate Body adopted 5 April 2001, para. 88 (“ Thai
Angles”).
94 Id.

83. An additional source of the denial of due process to which the United States is entitled is that
in its First Submission, Argentina has raised matters that were not within the scope of that portion of
its panel request that was in conf ormity with the requirements of Article 6.2. The United States
requests that the Panel find that these matters are not within its terms of reference.

B. BECAUSE PAGE 4 OF ARGENTINA’S PANEL REQUEST FAILS TO CONFORM TO THE
REQUIREMENTS OF ARTICLE 6.2 OF THE DSU, THE PANEL SHOULD FIND THAT THE CLAIMS
SET FORTH ON PAGE 4 ARE NOT WITHIN THE PANEL’S TERMS OF REFERENCE
84. Article 6.2 of the DSU provides , in pertinent part, as follows:

The request for the establishment of a panel shall . . . identify the specific measures at
issue and provide a brief summary of the le gal basis of the complaint sufficient to
present the problem clearly.
The Appellate Body recently summarized these requirements as follows:95
There are . . . two distinct require ments, namely identification of the specific
measures at issue , and the provision of a brief summary of the legal basis of the
complaint (or the claims). Together, they comprise the "matter referred to the DSB",
which forms the basis for a panel's terms of reference under Article 7.1 of the DSU.
The requirements of precision in the requ est for the establishment of a panel flow
from the two essential purposes of the term s of reference. First, the terms of
reference define the scope of the dispute. Secondly, the terms of reference, and the
request for the establishment of a pane l on which they are based, serve the due
process objective of notifying the parties an d third parties of the nature of a
complainant's case. When faced with an is sue relating to the scope of its terms of
reference, a panel must scrutinize carefully the request for establishment of a panel
"to ensure its compliance with both the letter and the spirit of Article 6.2 of the DSU."
As we have said previously, compliance with the requirements of Article 6.2 must be
demonstrated on the face of the request for the establishment of a panel. Defects in
the request for the establishment of a panel cannot be "cured" in the subsequent
submissions of the parties during the panel proceedings. Nevertheless, in considering
the sufficiency of a panel request, submissions and statements made during the course
of the panel proceedings, in particular th e first written submission of the complaining
party, may be consulted in order to conf irm the meaning of the words used in the
panel request and as part of the assessment of whether the ability of the respondent to
defend itself was prejudiced. Moreover, compliance with the requirements of Article
6.2 must be determined on the merits of each case, having considered the panel
request as a whole, and in the light of attendant circumstances.
85. The Appellate Body also has provided the fo llowing guidance concerning the requirement for
a summary:
96

95 United States - Countervailing Duties on Certain Corrosion-Resistant Carbon Steel Flat Products
from Germany, WT/DS213/AB/R and Corr. 1, Report of the Appellate Body adopted 19 December 2002, paras.
125-127 (footnotes omitted; italics in original) [hereinafter “US - German Steel”].
96 Korea - Definitive Safeguard Measure on Imports of Certain Dairy Products , WT/DS98/AB/R,
Report of the Appellate Body adopted 12 January 2000, para. 120 [hereinafter “Korea Dairy Safeguard”].

In its fourth requirement, Article 6.2 demands only a summary – and it may be a brief
one – of the legal basis of the complaint; but the summary must, in any event, be one
that is “sufficient to present the problem clearly”. It is not enough, in other words,
that “the legal basis of the complaint” is summarily identified; the identification must
“present the problem clearly”.
86. For the reasons set forth below, page 4 of Ar gentina’s panel request utterly fails to comply
with the requirement to “present the problem clearly.”

1. Page 4 of the Panel Request does not “present the problem clearly”
87. Three aspects of page 4 of Argentina’s panel request make it impossible to determine what
Argentina’s problems are. First, in the first para graph on page 4, while Argentina identifies five
discrete alleged “measures,” it asserts that it is challenging only “certain aspects” of those five
“measures,” and then fails to identif y what those “certain aspects” are.
97 Second, in the second
paragraph on page 4, Argentina indiscriminately lumps together various articles from three different
WTO agreements, almost all of which consist of multiple paragraphs and contain multiple obligations.
Finally, Argentina provides absolutely no narrativ e description on page 4 of the legal basis of the
complaint. As a result, it is impossible to discern the nature of Argentina’s problems.

88. With respect to the alleged “measures,” cons ider section 751(c), a provi sion of the Tariff Act
of 1930 cited on page 4 of the panel request. Sect ion 751(c) consists of six paragraphs, each of which
deals with a different aspect of sunset reviews and each of which contains different requirements.
98
Significantly, in Section A.1 of th e panel request, Argentina states that it is challenging paragraph (4)
of section 751(c) as such because it allegedl y precludes Commerce from making the type of
determination called for by the AD Agreement. 99 On page 4, however, Argentina states that it “also”
is complaining about “certain aspects” of section 751(c) as such. The use of the word “also” suggests
that the complaint on page 4 regarding section 751(c) involves something different from the
complaint described in Section A.1, but the use of the cryptic phrase “cer tain aspects” makes it
impossible to determine the precise portion of section 751(c) that Argentina is complaining about on
page 4. This ambiguity is puzzling, given that the references in Section A.1 to paragraph 4 of section
751(c) demonstrate that Argentina is capable of greater precision.

89. A similar problem exists with respect to the ot her “measures” referred to in the first paragraph
on page 4: section 752 of the Tariff Act of 1930,
100 the SAA, 101 the Sunset Policy Bulletin ,102 the

97 The United States places quotation marks around the word “measures,” because it does not agree that
all of the documents identified by Argentina constitute measures for purposes of WTO dispute settlement.
98 See Exhibit ARG-1.
99 In Section A.1, Argentina cites to 19 USC. §1675(c)(4), which is the US Code citation for
section 751(c)(4) of the Tariff Act of 1930.
100 Section 752 is included in Exhibit ARG-1. Section 752 – which deals with likelihood
determinations by Commerce and the ITC in sunset reviews and “changed circumstances” reviews – consists of
three subsections, which, in turn, cumulatively contain sixteen paragraphs. In Section B.3 of the panel request,
Argentina states that it is complaining about two specific statutory requirements that appear in paragraphs (1)
and (5), respectively, of subsection (a) of section 752. On page 4, however, Argentina shifts to ambiguity.
Again, the use of the word “also” indicates that Argentina is complaining about something in addition to what it
is complaining about in Section B.3, but the use of the phrase “certain aspects” makes it impossible to determine
precisely what that something is.
101 With respect to the SAA, Argentina does not even bother to provide the page number(s) on which
the alleged WTO inconsistency(ies) appears. The SAA contains eighty-nine pages of text dealing with the AD
Agreement. Even if one limits one’s search to the thirteen pages of text directly relating to sections 751(c) and
752, it is impossible to discern from the panel request the precise content of those thirteen pages that Argentina

Commerce regulations, 103 and the ITC regulations. 104 In essence, in the first paragraph on page 4,
Argentina does nothing more than identify six different “laws, regulations, policies and procedures”
and assert that “certain aspects” of these volumi nous materials are problematic, without providing a
clue as to what those problematic aspects are.

90. In addition to this vague description of the “measures,” in the second paragraph on page 4,
Argentina indiscriminately lists six articles and one annex of the AD Agreement, two articles of the
GATT 1994, and one article of the WTO Agreement. Because almost all of the articles consist of
multiple paragraphs and contain multiple obligations, the reader must guess at the identity of the
particular obligation(s) contained within an artic le with which a particular “measure” allegedly is
inconsistent.

91. More fundamentally, in view of the absence on page 4 of any narrative description of the
problem, or of any indication of how the obligatio ns in these listed articles are linked to the listed
measures, the reader is left to guess at how each measure allegedly breaches an obligation. It is
implausible to believe that Argentina is claiming that each of the “measures” is inconsistent with each
of the obligations contained in each of the articles cited. Yet, without any recitation of the facts and
circumstances describing the substance of these claims, the reader has no choice but to guess at the
identity of these claims. There is, quite simply, no “brief summary of the legal basis of the complaint
sufficient to present the problem clearly,” as required by Article 6.2 of the DSU.

considers to be WTO-inconsistent. The pages of the SAA dealing with sections 751(c) and 752 are attached as
Exhibit US-11.
102 The portion of the Bulletin dealing with sunset reviews in anti-dumping proceedings consists of
three major sections, with eleven subsections. Argentina does not indicate the subsection – or even the section –
it considers to be problematic, and it is impossible to discern from the panel request the precise content of the
Bulletin that Argentina considers to be WTO-inconsistent. The Sunset Policy Bulletin is included in Exhibit
ARG-35.
103 With respect to the Commerce regulations, on page 4 Argentina at least limits its challenge to one
section of the regulations, section 351.218. However, section 351.218 consists of six subsections – (a) through
(f) – that take up six pages in the US Code of Federa l Regulations and contain mu ltiple requirements. In
Section A.1 of the panel request, Argentina indicates that it is complaining about paragraph (e) of section
351.218, and Argentina identifies by paragraph the provisions of the AD Agreement with which paragraph (e)
allegedly is inconsistent. Again, however, the use of “also” suggests that on page 4 Argentina is complaining
about some aspect of section 351.218(e) other than what is complained about in Section A.1 of the panel
request, but the use of the phrase “certain aspects” makes it impossible to determine precisely what that
something is. A copy of section 351.218 is attached as Exhibit ARG-3.
In this regard, in its first submission, the focus of Argentina’s wrath is no longer section 351.218(e),
but section 351.218(d)(2)(iii). See Argentina's first submission, Section VII.A. This switch is misleading given
the express reference in the panel request to section 351.218(e), and the omission of any reference to section
351.218(d)(2)(iii). However, unlike page 4, Section A.1 of the panel request at least had a narrative explanation
indicating that Argentina had a problem with the concept of “waiver” under the US anti-dumping law. Thus,
while the ability of the United States to defend itself certainly was not helped by this particular “bait-and-
switch” gambit of Argentina, the United States is not asserting that the prejudice it experienced thereby was of
such a degree as to warrant a preliminary objection. It does, however, serve to highlight the problems the
United States encountered with respect to page 4 of the panel request, where there was no narrative explanation
to assist the United States in deciphering Argentina’s jumble of “measures” and obligations.
104 With respect to the ITC’s regulations, Argentina cites to ten different sections of those regulations.
These sections collectively establish a variety of mostly procedural requirements concerning sunset reviews.
Argentina does not indicate which section – let alone the subsection – of the regulations it is complaining about,
and it is implausible that Argentina is complaining about all ten sections. A copy of sections 207.60-69 of the
ITC’s regulations is attached as Exhibit US-4. As noted above, in its first submission, Argentina has not
pursued any claims regarding the ITC’s regulations.

92. The Appellate Body has found that “where the articles listed establish not one single, distinct
obligation, but rather multiple obligations . . . the lis ting of articles of an agreement, in and of itself,
may fall short of the standard of Article 6.2.”
105 Consistent with this finding, panels have found, for
example, that references to Article 6, Article 9, or Article 12 of the AD Agreement are not sufficiently
specific to satisfy the requirements of Article 6.2 of the DSU. 106 Although this type of defect can be
overcome if a panel request “also sets forth facts and circumstances describing the substance of the
dispute,”107 page 4 of Argentina’s panel request is devoid of any such explanatory material. To
paraphrase the Appellate Body, page 4 of “the request [does not] give any indication as to why or
how” the “measures” are inconsistent with US WTO obligations. 108 In short, page 4 of Argentina’s
panel request does not come anywhere close to satisf ying the Article 6.2 obligation to “present the
problem clearly.”

93. Moreover, Argentina has offered no explanation fo r its failure to comply with Article 6.2. In
Sections A and B of the request, Argentina demons trates that it is perfectly capable (in most
instances) of identifying with precision specific US statutory and regulatory provisions and linking
those provisions to specific paragraphs of WTO ag reements. In addition, Argentina had more than
one year in which to draft its panel request.

94. It is possible that Argentina may attempt to argue that the United States somehow knows from
the discussions at the consultations the nature of Argentina’s problems set forth on page 4 of the panel
request. Should Argentina make such an argume nt, the United States would have to vehemently
disagree. As a factual matter, the consultations were singularly unenlightening as to the nature of the
alleged WTO inconsistencies abou t which Argentina is complaining. For example, during the
consultations, Argentina never discussed the ITC’s regulations. More importantly, however, even if
the consultations had been more in formative as to the nature of Argentina’s problems, that would not
have absolved Argentina of its obligation to comply with Article 6.2 of the DSU. As one panel has
found:
109

Article 6.2 requires that a panel request pr ovide the necessary information, regardless
of whether the same information, or additional information, is already available to the
responding party through different channels, e.g., previous discussions between the
parties ... . [I]t is a corollary of the due process objective inherent in Article 6.2 that a
complaining party, as the party in control of the drafting of a panel request, should
bear the risk of any lack of precision in the panel request.
95. In summary, with respect to page 4 of Arge ntina’s panel request, because it is impossible to
discern what Argentina’s problems are, the requ est fails to comply with the requirements of
Article 6.2 of the DSU.

105 Korea Dairy Safeguard, para. 124.
106 European Communities - Anti-Dumping Duties on Malleable Cast Iron Tube or Pipe Fittings from
Brazil, WT/DS219/R, Report of the Panel, as modified by the Appellate Body, adopted 18 August 2003,
para. 7.14(7) (discussing Articles 6, 9 and 12 of the AD Agreement) [hereinafter “ EC - Pipe Fittings ”]; and
Thailand - Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel H-Beams from
Poland, WT/DS122/R, Report of the Panel, as modified by the Appellate Body, adopted 28 September 2000,
paras. 7.28-7.29 (discussing Article 6 of the AD Agreement) [hereinafter “Thai Angles (Panel)”].
107 Mexico - Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States ,
WT/DS132/R, Report of the Panel adopted 28 January 2000, para. 7.15 [hereinafter “Mexico HFCS”].
108 US - German Steel, para. 170 (italics in original).
109 Canada - Measures Relating to Exports of Wheat and Treatment of Imported Grain , WT/DS276/12,
Preliminary Ruling by the Panel issued 21 July 2003, para. 25 [hereinafter “Canada Wheat Exports”].

2. The United States has been prejudiced by Ar gentina’s failure to comply with Article 6.2
of the DSU
96. The United States has been prejudiced by Arge ntina’s failure to comply with Article 6.2 of
the DSU.110 With respect to the purpose underlying the requirements of Article 6.2 of the DSU, the
Appellate Body previously has explained that: “A defending party is entitled to know what case it has
to answer, and what violations have been alleged so that it can begin preparing its defence. [...] This
requirement of due process is fundamental to ensuring a fair and orderly conduct of dispute settlement
proceedings.”111

97. In the case of page 4 of Argentina’s panel request, the ability of the United States to begin
preparing its defence was delayed because, due to Argentina’s failure to comply with Article 6.2, the
United States did not “know what case it has to an swer.” As mentioned before, the United States did
not, for example, even know which section(s) of the ITC’s regulations Argentina is complaining about
or the specific WTO provision(s) with which the uni dentified section(s) alle gedly are inconsistent,
and it is unreasonable to expect the United States to have begun preparing defences against all the
possible combinations of measures/claims that Arge ntina might possibly set forth in its first written
submission.112 If this denial of a due process right th at the Appellate Body has characterized as
“fundamental” does not constitute prejudice, then nothing does.

98. Moreover, as noted above, it is apparent from Sections A and B of the panel request that
Argentina was capable of drafting its complaints with precision. The failure to employ similar
precision on page 4 leaves one with the unavoidabl e impression that the shift from precision to
extreme ambiguity was not inadvertent.

99. Finally, this is not a case where the resp ondent failed to object earlier in the proceeding. 113
The United States identified the defects in Argentina’s panel request at the first meeting of the DSB at
which the request was on the agenda, made it clear at that time that it did not understand the substance
of Argentina’s complaint, and requested that Argentina submit a new panel request that complied with
Article 6.2 of the DSU. Unfortunately, Argentina refused to remedy the defects in its panel request,
thereby leaving the United States with no choice but to seek redress from the Panel.

3. The Panel should find that the claims set fo rth on Page 4 of Argentina’s Panel Request
are not within the Panel’s Terms of Reference
100. Given Argentina’s failure to comply with Article 6.2 of the DSU, the Panel should find that
the claims set forth on page 4 of Argentina’s pa nel request are not within the Panel’s terms of
reference.

101. In fact, Argentina appears to have conceded as much at the DSB meeting of 19 May. To
recall, in response to the problems identified by th e United States with respect to page 4 of the panel

110 The United States assumes, for purposes of argument, that a failure to comply with Article 6.2 can
be excused by a finding that the respondent has not been prejudiced.
111 Thailand - Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel H-
Beams from Poland , WT/DS122/AB/R, Report of the Appellate Body adopted 28 September 2000, para. 88
[hereinafter “Thai Angles (AB)”].
112 Indeed, the United States still does not know the nature of Argentina’s problem with the ITC’s
regulations, because Argentina’s first submission does not discuss those regulations.
113 See United States - Safeguard Measures on Imports of Fresh, Chilled or Frozen Lamb Meat from
New Zealand and Australia , WT/DS177/R, WT/DS178/R, Report of the Panel, as modified by the Appellate
Body, adopted 21 December 2000, para. 5.42.

request, Argentina stated that: “It was Argentina’s intention (as the panel request clearly provided) to
set forth the particular claims in the paragraphs contained in Sections A and B of the document.”
114

102. The United States would take issue with Arge ntina’s assertion concerning the clarity of its
panel request. Nonetheless, if Argentina continues to abide by what it told the DSB, then it should
have no problem with a finding that its claims are limited to those set forth in Sections A and B. Such
a finding would remedy, at least somewhat, the prej udice to the United States. With one exception,
discussed below, the United States believes that it understood the nature of the Argentine claims set
forth in Sections A and B, and was able to begin preparing its defence with respect to those claims
prior to the receipt of Argentina’s First Submission. 115 Because these would be the only claims to
which the United States would have to respond, it no longer would be prejudiced by its inability to
begin preparing a defence in response to the claims – whatever they may be – included on page 4 of
the panel request.

C. BECAUSE SECTIONS B.1, B.2 AND B.3 OF ARGENTINA’S PANEL REQUEST DO NOT PRESENT
THE PROBLEM CLEARLY WITHIN THE MEANING OF ARTICLE 6.2 OF THE DSU, THE PANEL
SHOULD FIND THAT ARGENTINA’S CLAIMS IN THOSE SECTIONS ALLEGING INCONSISTENCIES
WITH ARTICLE 3 AND ARTICLE 6 OF THE AD AGREEMENT ARE NOT WITHIN THE PANEL’S
TERMS OF REFERENCE
103. The second category of defects in Argentina’ s panel request appear in Sections B.1, B.2 and
B.3 of the request, which read as follows:116

B. The Commission's Sunset Determin ation was inconsistent with the Anti-
Dumping Agreement and the GATT 1994:
1. The Commission's application of th e standard for determining whether the
termination of anti-dumping duty measure woul d be "likely to lead to continuation or
recurrence of ... injury" was inconsistent with Articles 11, 3 and 6 of the Anti-
Dumping Agreement. The Commission failed to apply the plain and ordinary
meaning of the term "likely" and instea d applied a lower standard in assessing
whether injury would continue or recur in the event of termination, in violation of
Articles 11.1, 11.3, 11.4, 3.1, 3.2, 3.3, 3.4, 3.5, and 6 of the Anti-Dumping
Agreement.
2. The Commission failed to conduct an "objective examination" of the record
and failed to base its determination on "positive evidence" regarding whether
termination of the anti-dumping duty measure "would be likely to lead to
continuation or recurrence" of injury. In particular, the Commission's conclusions
with respect to the volume of imports, price effects on domestic like products, and
impact of imports of the domestic industry demonstrate the Commission's failure to
conduct an objective examination in violat ion of Articles 11, 3, and 6. The
Commission's findings on these issues do not constitute "positive evidence" of likely
injury in the event of termination, in viol ation of Articles 11.1, 11.3, 11.4, 3.1, 3.2,
3.3, 3.4, 3.5, and 6 of the Anti-Dumping Agreement.

115 As discussed below, however, the United States objects to Argentina’s inclusion in its first
submission of matters not within the scope of Sections A and B of its panel request. In addition, the United
States reserves the right to object should Argentina’s future submissions also include claims that do not fall
within the scope of Sections A and B of its panel request.
116 WT/DS268/2 (4 April 2003), pages 3-4.

3. The US statutory requirements that the Commission determine whether injury
would be likely to continue or recur "wit hin a reasonably foreseeable time" (19 USC.
§ 1675a(a)(1)) and that the Commission "shall consider that the effects of revocation
or termination may not be imminent, but may manifest themselves only over a longer
period of time" (19 USC. § 1675a(a)(5)) are inconsistent with Articles 11.1, 11.3 and
3 of the Anti-Dumping Agreement.
104. The defect in these three paragraphs is that Sections B.1 and B.2 allege an inconsistency with
Article 6 of the AD Agreement in its entirety, while Section B.3 alleges an inconsistency with Article
3 of the AD Agreement in its entirety. These allegations do not comply with the Article 6.2
requirement to “present the problem clearly,” because Articles 3 and 6 each consist of multiple
paragraphs and contain multiple obligations. It is implausible that Argentina is claiming that the ITC
acted inconsistently with each one of these obligations. 117 Without more, however, it is impossible to
determine from the panel request the obligation(s) w ith which US law or the ITC’s actions allegedly
are inconsistent; i.e., it is impossible to discern the nature of Argentina’s problem.

105. The Appellate Body previously has clarified th at the consistency of panel requests with the
requirements of Article 6.2 must be analyzed on a case-by-case basis:
118

Identification of the treaty provisions claimed to have been violated by the respondent
is always necessary both for purposes of defining the terms of reference of a panel
and for informing the respondent and the third parties of the claims made by the
complainant; such identification is a minimu m prerequisite if th e legal basis of the
complaint is to be presented at all. But it may not always be enough. There may be
situations where the simple listing of the articles of the agreement or agreements
involved may, in the light of attendant circ umstances, suffice to meet the standard of
clarity in the statement of the legal basis of the complaint. However, there may also
be situations in which the circumstances are such that the mere listing of treaty
articles would not satisfy the standard of Article 6.2. This may be the case, for
instance, where the articles listed establish not one single, distinct obligation, but
rather multiple obligations. In such a situation, the listing of articles of an agreement,
in and of itself, may fall short of the standard of Article 6.2.
Consistent with the Appellate Body’s reasoning, prior panels have found that the
mere listing of entire articles of the AD Agreement fails to comply with Article 6.2 of
the DSU.
119
106. In this dispute, the circumstances are such that the mere listing of Article 3 or Article 6 does,
indeed, “fall short of the standard of Article 6.2.” This is demonstrated by the fact that elsewhere in
its panel request, Argentina was able to cite to spec ific paragraphs of Articles 3 and 6. In Sections
A.1-A.3, Argentina alleged incons istencies with Articles 6.1, 6.2, 6.6, 6.8, 6.9 and 6.10. In
Sections B.1-B.2 and B.4, Argentina alleged inconsistencies with Articles 3.1, 3.2, 3.3, 3.4 and 3.5.
Thus, Argentina’s failure to cite pa rticular paragraphs of Article 6 in Sections B.1 and B.2, and its

117 Indeed, based on its first submission, it appears that Argentina is not claiming that the United States
acted inconsistently with Articles 3 and 6 in their entirety. With respect to Section B.3 and Argentina’s claims
that US statutory requirements are inconsistent, as such, with Article 3, in its first submission Argentina has
claimed inconsistencies with Articles 3.1, 3.2, 3.4, 3.7 and 3.8. Argentina' s first submission, paras. 270-275.
With respect to Sections B.1 and B.2 and Argentina’s claims regarding the ITC’s application of the “likely”
standard and the ITC’s alleged failure to engage in an “objective examination” based on “positive evidence,” in
its first submission Argentina does not mention Article 6 at all. Id., Sections VIII.A and VIII.B.
118 Korea Dairy Safeguard, para. 124 (footnote omitted; italics in original).
119 EC - Pipe Fittings , para. 7.14(7) (discussing Articles 6, 9 and 12 of the AD Agreement); and Thai
Angles, paras. 7.28-7.29 (discussing Article 6 of the AD Agreement).

failure to cite particular paragraphs of Article 3 in Section B.3, must be due to the fact that: (1)
Argentina was unsure as to the claims it intended to make; or (2) it knew what claims it intended to
make, but wished to conceal that information fo r the time being. Neither motivation, however,
constitutes an excuse for failing to comply with Article 6.2 of the DSU.

107. Argentina’s suggestion to the DSB that the questions it posed at the consultations somehow
enabled the United States to discern the meaning of Argentina’s general references to Articles 3 and 6
is factually incorrect and legally irrelevant.
120 As a factual matter, the questions posed by Argentina
shed little light on the nature of Argentina’s complaints. In the cas e of Article 6, Argentina asked
only one question. Included under the rubric of “General Questions Regarding Substantive
Obligations of the Anti-Dumping Agreement Appli cable to Reviews Conducted Under Article 11.3",
this question was as follows: “Does the United States consider that the requirements of Article 6 of
the Anti-Dumping Agreement apply to reviews under Article 11.3? If so, what are the specific
requirements of Article 6 that apply to reviews conducted under Article 11.3?” 121 This question
provided absolutely no information about Argentina’s problem. It did not even ask about the sunset
review on OCTG from Argentina. Instead, it did nothing more than solicit the views of the United
States – not Argentina – on the general relati onship, in the abstract, between Article 6 and
Article 11.3.

108. Argentina’s questions concerning Article 3 were no more illuminating. Questions 49 and 50
of the 14 November questions asked about Article 3.3 and the concept of cumulation. 122 In the
second set of questions presented at the 17 December consultations, Questions 18-20 asked for US
views, in the abstract, concerning Article 3.3, Question 21 asked whether the provisions of Article 3
are mandatory or discretionary in anti-dumping i nvestigations, and Questions 22-23 and 33 asked
about the relationship, in the abstract, between Artic le 3 and Article 11.3. None of these questions
shed any light on the nature of the problem refl ected in Argentina’s reference to Article 3 in
Section B.3 of its panel request. To the extent that four of these nine questions related to Article 3.3
of the AD Agreement, one might conclude that Ar gentina had a concern about the use of cumulation
in sunset reviews. However, cumulation appears to be the subject of Section B.4 of the panel request,
not Section B.3.

109. In any event, it is legally irrelevant whether the questions posed by Argentina at consultations
were informative as to Argentina’s concerns at that time. The legally relevant question is whether
Argentina’s panel request complies with the requirements of Article 6.2 of the DSU. As noted above:
“Article 6.2 requires that a panel request provide th e necessary information, regardless of whether the
same information, or additional information, is already available to the responding party through
different channels, e.g., previous discussions between the parties.”
123

110. The United States has been prejudiced by this failure of Argentina to comply with the
requirements of Article 6.2. As in the case of pa ge 4 of Argentina’s panel request, the United States’
ability to begin preparing its defenc e has been impaired because, as a result of Argentina’s failure to
comply with Article 6.2, the United States did not “know what case it has to answer.”

120 Before the DSB, Argentina asserted that the 86 questions presented by Argentina at the
consultations enabled the United States to discern the nature of the problem underlying Argentina’s general
reference to Articles 3 and 6 in the disputed sections of the panel request. Exhibit US-2, para. 34.
121 This question was Question 5 of the questions posed by Argentina at the 14 November
consultations. A copy of these questions, along with the questions posed by Argentina at the 17 December
consultations, is attached as Exhibit US-12.
122 Id.
123 Canada Wheat Exports, para. 25.

111. Accordingly, the United States requests that the Panel find that the claims of inconsistency
with Article 6 of the AD Agreement set forth in Sections B.1 and B.2 of Argentina’s panel request,
and the claim of inconsistency with Article 3 of the AD Agreement set forth in Section B.3 of the
panel request, are not within the Panel’s terms of reference.

D. THE PANEL SHOULD FIND THAT CERTAIN MATTERS INCLUDED IN ARGENTINA’S FIRST
SUBMISSION ARE NOT WITHIN THE PANEL’S TERMS OF REFERENCE BECAUSE THOSE MATTERS
WERE NOT INCLUDED IN ARGENTINA’S PANEL REQUEST
112. The Panel was established with standard term s of reference, which means that the Panel’s
terms of reference are limited to the matters raised in Argentina’s panel request. 124 As the Appellate
Body has previously explained: “The jurisdiction of a panel is established by that panel’s terms of
reference, which are governed by Article 7 of the DS U. A panel may consider only those claims that
it has the authority to consider under its terms of re ference. A panel cannot assume jurisdiction that it
does not have.”125

113. In its first submission, Argentina has raised five matters that are not included in Section A or
B of its panel request.
126 These matters consist of the following:

1. Argentina’s claim that Commerce’s sunset review practice, both as such and
as applied, is inconsistent with Article 11.3 of the AD Agreement, because it is
allegedly based on an irrefutable presumption. This matter is discussed in Section
VII.B.1 of Argentina’s First Submission, at paras. 124-137.
2. Argentina’s claim that 19 USC. §§ 1675(c) and 1675(a)(c), the SAA, and the
Sunset Policy Bulletin , taken together, establish an irrefutable presumption that is
inconsistent with Article 11.3 of the AD Ag reement. This matter is discussed in
Section VII.B.2 of Argentina’s First Submission, at paras. 138-147.
3. Argentina’s claim that Commerce’s s unset review practice is inconsistent
with Article X:3(a) of the GATT 1994. This matter is discussed in Section VII.E of
Argentina’s First Submission, at paras. 194-210.
4. Argentina’s claim that the ITC’s app lication of 19 USC. §§ 1675a(a)(1) and
(5) in the sunset review of OCTG from Ar gentina is inconsistent with Articles 11.3
and 3 of the AD Agreement. This matter is discussed in Section VIII.C.2 of
Argentina’s First Submission, at paras. 276-277.
5. Argentina’s claim that the US measures it has identified are inconsistent with
Article VI of the GATT 1994, Articles 1 and 18 of the AD Agreement, and
Article XVI:4 of the WTO Agreement. This matter is discussed in Section IX of
Argentina’s First Submission, at paras. 295-313.
114. As explained below, none of these matters falls within the scope of Sections A or B of
Argentina’s panel request. Therefore, they are not within the Panel’s terms of reference.

124 Constitution of the Panel Established at the Request of Argentina; Note by the Secretariat,
WT/DS268/3 (9 September 2003).
125 India - Patent Protection for Pharmaceutical and Agricultural Chemical Products ,
WT/DS50/AB/R, Report of the Appellate Body adopted 16 November 1998, para. 92.
126 As demonstrated above, the matters covered by page 4 of the panel request – whatever they may be
– are not within the Panel’s terms of reference due to Argentina’s failure to comply with Article 6.2 of the DSU.
Accordingly, the United States addresses only the question of whether the new matters contained in Argentina’s
first submission fall within the scope of Sections A or B of the panel request.

1. Argentina’s claim that Commerce’s sunset review practice, both as such and as applied,
is inconsistent with Article 11.3 of the AD Agreement
115. In Section VII.B.1 of its First Submission, Ar gentina claims that Commerce’s sunset review
practice, both as such and as applied, is inconsistent with Article 11.3 of the AD Agreement.
127
According to Argentina: “[B]ecause it is the Department’s consistent practice to employ in its sunset
reviews an irrefutable presumption of likely dumping, the United States is acting inconsistently with
Article 11.3 of the Anti-Dumping Agreement.”128

116. The only portion of Argentina’s panel request that makes any reference at all to an
“irrefutable presumption” is Section A.4. However, Section A.4 does not contain an allegation that
Commerce practice, either as such or as applie d, is inconsistent with Article 11.3 of the
AD Agreement. Instead, the only action alleged to be inconsistent with Article 11.3 as a result of this
“irrefutable presumption” is the “Department’s Sunset Determination;” i.e., Commerce’s sunset
review determination in OCTG from Argentina.
129 Although Section A.4 contains a reference to
Commerce practice, Argentina cites this practice simply as evidence of the irrefutable presumption
that Commerce allegedly applied in the OCTG sunset review. Argentina makes no claim that the
practice itself is inconsistent with Article 11.3, eith er as such or as applied. Moreover, none of the
other paragraphs in Section A of the panel request can be construed as encompassing Argentina’s
claim concerning Commerce practice.

117. In addition, if Argentina actually is claiming that Commerce practice as applied in sunset
reviews other than the review on OCTG from Argen tina is inconsistent with Article 11.3, then the
United States also objects on the grounds that no Commerce sunset review determination other than
that involving OCTG from Argentina is enumerated in the panel request, and this matter was not the
subject of consultations between the United States and Argentina. Articles 4.3, 4.7 and 6.2 of the
DSU make it clear that there must be consultations on a matter before a panel can be requested.
However, the only specific Commer ce sunset review on which consultations occurred was the review
involving OCTG from Argentina.

2. Argentina’s claim that 19 USC. §§ 1675( c) and 1675(a)(c), the SAA, and the Sunset
Policy Bulletin, taken together, establish an irrefutable presumption that is inconsistent
with Article 11.3 of the AD Agreement
118. In Section VII.B.2 of its First Submission, Argentina claims that 19 USC. §§ 1675(c) and
1675a(a)(c), the SAA, and the Sunset Policy Bulletin , taken together, esta blish an irrefutable
presumption that is inconsistent with Article 11. 3 of the AD Agreement. According to Argentina:
“Taken together, the US sunset statutory provisions, the SAA, and the Sunset Policy Bulletin prescribe
a standard that is inconsistent with Article 11.3 of the Anti-Dumping Agreement.”
130

119. Again, the only portion of Argentina’s panel request that makes any reference at all to an
“irrefutable presumption” is Section A.4. However, Section A.4 does not contain an allegation that
the statute, the SAA, or the Bulletin – taken together or in isolation – is incons istent with Article 11.3
of the AD Agreement. Instead, the only action alleged to be inconsistent with Article 11.3 as a result

127 Argentina’s discussion of this particular matter is somewhat confused, and it is not entirely clear as
to whether Argentina is making both an “as such” and an “as applied” claim. In an excess of caution, the United
States assumes that Argentina is making both.
129 Specifically, in its panel request, Argentina asserts that: “The Department’s Sunset Determination
is inconsistent with Article 11.3 of the Anti-Dumping Agreement . . . because it was based on a virtually
irrefutable presumption ... .” WT/DS268/2, page 3.

of the alleged “irrefutable presumption” is the “Department’s Sunset Determination;” i.e.,
Commerce’s sunset review determ ination in OCTG from Argentina. 131 Although Section A.4
contains a reference to “US law” and “the Department’s Sunset Policy Bulletin ,” Argentina simply
cites these as the source of the presumption that Commerce allegedly applied in the OCTG sunset
review determination.132 Argentina makes no claim in Section A.4 that the statutory provisions, the
SAA and/or the Bulletin themselves are inconsistent w ith Article 11.3, either as such or as applied.
Moreover, none of the other paragraphs in Section A of the panel request can be construed as
encompassing such a claim.

120. Finally, other portions of Argentina’s pane l request make it clear that Argentina knows how
to formulate a claim challenging US law “as such.” In Section A.1 of the request, Argentina clearly
states its belief that: “US laws, regulations, and procedures regarding ‘expedited’ sunset reviews are
inconsistent with” the AD Agreement. Likewise, in Section B.3, Argentina states that: “The US
statutory requirements . . . are inconsistent with” the AD Agreement. The fact that Argentina did not
make a comparable claim in Section A.4 can only be due to the fact that no such claim was intended.
The inclusion of such a claim in Argentina’s first submission simply constitutes a belated and
impermissible attempt to expand the jurisdiction of the Panel.

3. Argentina’s claim that Commerce’s sunset review practice is inconsistent with
Article X:3(a) of the GATT 1994
121. In Section VII.E of its First Submission, Argentina claims that Commerce’s sunset review
practice, both as such and as applied, is inconsistent with Article X:3(a) of the GATT 1994.
133
According to Argentina: “[T]he data drawn from the Department’s own records demonstrates that the
Department failed to administer in an impartial and reasonable manner US anti-dumping laws,
regulations, decisions and rulings with respect to th e Department’s conduct of sunset reviews of anti-
dumping duty orders, in violation of Article X:3(a) of the GATT 1994.”134

122. The only portion of Argentina’s panel request th at makes any reference at all to Article X:3(a)
is Section A.4. However, Section A.4 does not co ntain an allegation that Commerce practice, either
as such or as applied, is inconsistent with Artic le X:3(a). Instead, the only action alleged to be
inconsistent with Article X:3(a) is th e “Department’s Sunset Determination;” i.e., Commerce’s sunset
review determination in OCTG from Argentina. 135 Although Section A.4 contains a reference to
Commerce practice “in sunset reviews,” Argentina cites this practice simply as evidence of the
alleged irrefutable presumption that was used in the review of OCTG from Argentina. Argentina
makes no claim that the practice itself is inconsistent with Article X:3(a), either as such or as applied.
Moreover, none of the other paragraphs in Section A of the panel request can be construed as
encompassing a claim concerning the consistency of Commerce practice with Article X:3(a).

131 Specifically, in its panel request, Argentina asserts that: “The Department’s Sunset Determination
is inconsistent with Article 11.3 of the Anti-Dumping Agreement . . . because it was based on a virtually
irrefutable presumption ... .” WT/DS268/2, page 3.
132 Neither Section A.4 nor any other portion of Section A mentions the SAA.
133 Here, too, Argentina’s discussion is somewhat confused, and it is not entirely clear as to whether
Argentina is making both an “as such” and an “as applied” claim. In an excess of caution, the United States
assumes that it is making both.
135 Specifically, in its panel request, Argentina asserts that: “The Department’s Sunset Determination is
inconsistent with . . . Article X:3(a) of the GATT 1994 because it was based on a virtually irrefutable
presumption ... .” WT/DS268/2, page 3.

4. Argentina’s claim that the ITC’s application of 19 USC. §§ 1675a(a)(1) and (5) in the
Sunset Review of OCTG from Argentina is in consistent with Articles 11.3 and 3 of the
AD Agreement
123. In Section VIII.C.2 of its First Submission, Argentina claims that the ITC’s application of
19 USC. §§ 1675a(a)(1) and (5) in the sunset review of OCTG from Argentina is inconsistent with
Articles 11.3 and 3 of the AD Agreem ent. According to Argentina: “[E]ven if the statutory language
were consistent with the Anti-Dumping Agreement, the ITC failed to apply the statutory language to
the evidence before it to conclude that revocation of the orders would likely lead to continuation or
recurrence of injury.”
136

124. Section 1675a(a)(1) requires the ITC to determ ine whether injury would be likely to continue
or recur “within a reasonably foreseeable time,” while section 1675a(a)(5) requires that the ITC “shall
consider that the effects of revocation or term ination may not be imminent, but may manifest
themselves only over a longer period of time.” The only portion of the panel request that refers to
these provisions – and the concepts they embody – is Section B.3. However, it is quite clear from the
text that the claim in Section B.3 relates to the statutory provisions “as such”, and not “as applied.” In
Section B.3, Argentina states that: “The US statut ory requirements . . . are inconsistent” with the AD
Agreement. Section B.3 contains no reference to the “application” of these statutory provisions,
either in general or in the sunset review of OCTG from Argentina.

125. Moreover, other portions of Argentina’s pane l request make it clear that Argentina knows
how to formulate a claim challenging US law “as applied.” In Section A.2, Argentina complains
about Commerce’s “application” of its expedited sunset review procedures in the OCTG review, and
in Section A.5, Argentina complains about Commerce’ s “application” of the “likely” standard. In
Section B.1, Argentina complains about the ITC’s “application” of the “lik ely” standard, and in
Section B.4 complains about the ITC’s “application” of a cumulative injury analysis. The fact that
Argentina did not make a comparable claim in S ection B.3 about the ITC’s “application” of the
standards in 19 USC. §§ 1675a(a)(1) and (5) can only be due to the fact that no such claim was
intended. Instead, the inclusion of such a claim in Argentina’s first submission again simply
constitutes a belated and impermissible attempt to expand the jurisdiction of the Panel.

5. Argentina’s claim that the US measures it has identified are inconsistent with Article VI
of the GATT 1994, Articles 1 and 18 of the AD Agreement, and Article XVI:4 of the
WTO Agreement
126. In Section IX of its First Submission, Argentin a claims that all of the “measures” it identified
in its panel request are inconsistent with Article VI of the GATT 1994, Articles 1 and 18 of the AD
Agreement, and Article XVI:4 of th e WTO Agreement. These claims are consequential claims in the
sense that they depend upon a finding that some ot her provision of the AD Agreement or GATT 1994
has been breached.

127. However, neither Section A nor Section B of Argentina’s panel request refers to these
provisions. Instead, the only portion of Argentina’ s panel request that makes any reference at all to
Article VI, Articles 1 and 18, and Article XVI:4 is page 4. As demonstrated above, however, the
claims set forth on page 4 are not within the Panel’s terms of reference.

128. These dependent claims also are not within th e Panel’s terms of refere nce to the extent that
they are dependent on a claim that itself is not within the Panel’s terms of reference.

E. CONCLUSION
129. The portions of the panel request to which the United States is not objecting demonstrate that
Argentina knows perfectly well how to file a panel request that conforms with the obligations of
Article 6.2 of the DSU. This only tends to highlight the clearly defective nature of the remainder of
Argentina’s panel request.

130. The requirements of Article 6.2 exist for a reason, a reason which the Appellate Body has
succinctly summarized as follows: “A defending pa rty is entitled to know what case it has to answer,
and what violations have been alleged so that it can begin preparing its defence.” 137 Here, Argentina
has denied the United States that to which it is entitled by Article 6.2.

V. GENERAL LEGAL PRINCIPLES
A. S
COPE AND STANDARD OF REVIEW
131. Articles 17.5 and 17.6 of the AD Agreement set forth standards concerning the scope and
standard of review in disputes involving anti-dumping measures to which panels must adhere. With
respect to the “scope” of review, Article 17.5(ii) of the AD Agreement directs a panel to limit its
review to the facts that were before the investiga ting authority when it made its determination. With
respect to the sunset review on OCTG from Arge ntina made by Commerce and the ITC, this means
the evidence contained in the administrative records of Commerce and the ITC, respectively.
138 This
concept is consistent with the fact that where a pa nel is reviewing the WTO-consistency of an action
taken by an administrative agency, a panel is not to act as a trier-of-fact in the first instance or to
otherwise engage in a de novo review of the evidence before the agencies.

132. With respect to the standard of review, Ar ticle 17.6(i) of the AD Agreement addresses a
panel’s review of the facts, providing as follows:

in its assessment of the facts of the matter, the panel shall determine whether the authorities'
establishment of the facts was proper and whether their evaluation of those facts was unbiased
and objective. If the estab lishment of the facts was proper and the evaluation was unbiased
and objective, even though the panel might have re ached a different conclusion, the
evaluation shall not be overturned. (Emphasis added.)

133. In other words, panels are not to conduct their own de novo evaluation of the facts if the
domestic investigating authority’s establishment of the facts was prop er and if its evaluation of the
facts was unbiased and objective. This applies even if the panel – had it stood in the shoes of that
authority originally – might have decided the matter differently.

134. Finally, with respect to the standard of review and a panel’s review of interpretative issues,
Article 17.6(ii) provides as follows:

 the panel shall interpret the relevant provisions of the Agreement in accordance with
customary rules of interpretation of public inte rnational law. Where the panel finds that a
relevant provision of the Agreem ent admits of more than one permissible interpretation, the
panel shall find the authorities' measure to be in conformity with the Agreement if it rests
upon one of those permissible interpretations.

137 Thai Angles (AB), para. 88.
138 See, e.g., Mexico - HFCS, para. 7.43 (“[W]e are required to consider this dispute on the basis of the
facts before the investigating authority, pursuant to Article 17.5(ii) of the AD Agreement.”).

135. This means, for example, that if dictionary de finitions reveal that a treaty term has more than
one ordinary meaning, an authority’s measure that is based on one of those meanings could be
permissible and in conformity with the AD Agreement.
139

B. BURDEN OF PROOF: ARGENTINA BEARS THE BURDEN OF PROVING ITS CLAIMS
136. It is well-established that the complaining party in a WTO dispute bears the burden of coming
forward with argument and evidence that establish a prima facie case of a violation. 140 If the balance
of evidence and argument is inconclusive with respect to a particular claim, the Panel must find that
the complaining party, Argentina, failed to establish that claim.141

137. For the reasons discussed below, the United States believes that Argentina has failed to meet
its burden to establish a prima facie case. In the event the Panel should find to the contrary, however,
Argentina's claims are also rebutted below.

VI. LEGAL ARGUMENT
A. SECTION 751(C)(4) OF THE ACT AND SECTION 351.218(D)(2)(III) OF COMMERCE’S SUNSET
REGULATIONS – THE “WAIVER” PROVISIONS – ARE NOT INCONSISTENT , AS SUCH , WITH THE
AD AGREEMENT
138. Argentina claims that section 751(c)(4) of the Act and section 351.218(d)(2)(iii) of
Commerce’s Sunset Regulations (the so-called “waiver” provisions) are inconsistent, as such, with the
AD Agreement. First, Argentina claims that thes e provisions preclude Commerce from conducting a
sunset review and making a determination as to whether the expiry of the duty would lead to the
continuation or recurrence of dumping, as required by Article 11.3 of AD Agreement. In particular,
Argentina contends that when a respondent interested party is found to have waived participation in a
sunset review, these provisions improperly require Co mmerce to find that the revocation of the order
would be likely to lead to the continuation or recurrence of dumping without requiring Commerce to
make any substantive likelihood determination. 142 Second, Argentina claims that these provisions are
inconsistent with Articles 6.1 and 6.2 of the AD Agreement because they foreclose opportunities for a
respondent interested party to present evidence or to defend its interests in a sunset review.143

139. As demonstrated below, Argentina’s claims are based on a misrepresentation of the purpose
and operation of the “waiver” provisions, and theref ore have no merit. An accurate understanding of
these provisions reveals that they do not mandate WTO-inconsistent behaviour or preclude WTO-
consistent behaviour.

139 Argentina - Definitive Anti-Dumping Duties on Poultry from Brazil , WT/DS241/R, Report of the
Panel adopted 19 May 2003, paras. 7.337-7.343 (Argentina did not act inconsistently with Article 4.1 of the AD
Agreement where its action was consistent with one, if not all, dictionary definitions of the phrase “major
proportion.”).
140 See, e.g., United States - Measures Affecting Imports of Woven Shirts and Blouses from India ,
WT/DS33/AB/R, Report of the Appellate Body, adopted 23 May 1997, page 14; EC Measures Concerning
Meat and Meat Products , WT/DS26/AB/R, WT/DS48/AB/R, Report of the Appellate Body adopted
13 February 1998, para. 104; and Korea – Definitive Safeguard Measure on Imports of Certain Dairy Products ,
WT/DS98/R, Report of the Panel, as modified by the Appellate Body, adopted 12 January 2000, para. 7.24.
141 See, e.g., India - Quantitative Restrictions on Imports of Agricultural, Textile and Industrial
Products, WT/DS90/R, Report of the Panel, as affirmed by the Appellate Body, adopted 22 September 1999,
para. 5.120.
142 Argentina's first submission, paras. 114-117.
143 Argentina's first submission, paras. 121-122.

140. Before turning to the provisions themselves, however, it is important to recognize the limited
extent to which the AD Agreement actually addresses sunset reviews. Indeed, the sole provision of
the AD Agreement generating the need to conduct s unset reviews is Article 11.3. Article 11.3
provides as follows:

Notwithstanding the provisions of paragraphs 1 and 2, any definitive anti-dumping
duty shall be terminated on a date not late r than five years from its imposition (or
from the date of the most r ecent review under paragraph 2 if that review has covered
both dumping and injury, or under this pa ragraph), unless the authorities determine,
in a review initiated before that date on their own initiative or upon a duly
substantiated request made by or on behalf of the domestic industry within a
reasonable period of time prior to that date, that the expiry of the duty would be likely
to lead to continuation or recu rrence of dumping and injury.
22 The duty may remain
in force pending the outcome of such a review.
 22 When the amount of the anti-dumping duty is assessed on a retrospective basis, a
finding in the most recent assessment procee ding under subparagraph 3.1 of Article 9
that no duty is to be levied shall not by itself require the authorities to terminate the
definitive duty.

141. Thus, Article 11.3 establishes the simple requirement that five years after an order’s
imposition, it must either be terminated or a review must be conducted to determine whether
termination of that order “would be likely to lead to continuation or recurrence of dumping and
injury.” Outside of this standard and the requirement to initiate a review or re voke the order, the text
of Article 11.3 contains no provisions governing the conduct of sunset reviews, the type of evidence
sufficient to satisfy the “likelihood test” or the methodologies or modes of analysis to be used in
reaching a sunset determination. As articulated succinctly by the panel in US – Japan Sunset:

Article 11.3 is silent as to how an authority should or must establish that dumping is
likely to continue or recur in a sunset re view. That provision itself prescribes no
parameters as to any methodological requirements that must be fulfilled by a
Member’s investigating authority in making such a “likelihood” determination.
144
142. To be sure, there are a few other provision s in the AD Agreement that reference sunset
reviews by referencing reviews in general. Article 11.4 explains that any review under Article 11
“shall be carried out expeditiously and shall normally be concluded within 12 months of the date of
initiation of the review” and that the provisions of Article 6 regarding “evid ence and procedure shall
apply to any review carried out under this Article.” Article 12.3 states that the transparency and
notice provisions of Article 12 apply “ mutatis mutandis to the initiation and completion of reviews
pursuant to Article 11.” Neither Article 6 nor Ar ticle 12, however, contains any provisions regarding
the methodologies or analysis to be employed in making the determination of whether dumping and
injury is likely to continue or recur. Attempts to read into Article 11.3 substantive obligations
allegedly contained in other provisions of th e AD Agreement have been soundly rejected. 145 In sum,
aside from the obligations contained in Article 11.3 and those provisions of Articles 6 and 12

144 See United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel
Flat Products from Japan , WT/DS244/R, Appeal Notified 15 September 2003, para. 7.166. [hereinafter US –
Japan Sunset].
145 In US - German Steel , para. 112, the Appellate Body found that Article 22.1 of the Agreement on
Subsidies and Countervailing Measures (“SCM Agreement”) – the counterpart to Article 12.1 of the
AD Agreement – did not create an evidentiary standard applicable to the initiation of sunset reviews. In US -
Japan Sunset , para. 7.33, the panel followed US - German Steel and found that Article 12.1 of the
AD Agreement likewise does not create an evidentiary standard applicable to the initiation of sunset reviews.

discussed above, the AD Agreement leaves the conduct of sunset reviews to the discretion of the
Member concerned.

1. The Waiver Provisions are not inconsistent with the obligation to conduct a “review”
and make a “determination” under Article 11.3 of the AD Agreement
143. Argentina claims that section 751(c)(4) of the Act and section 351.218(d)(2)(iii) of
Commerce’s Sunset Regulations “preclude” Commerce from making a “determination” and from
conducting a “review” in accordance with the obliga tions of Article 11.3. Argentina argues that
section 751(c)(4) and section 351.218(d) (2)(iii) of Commerce’s Sunset Regulations are inconsistent
with Article 11.3 because they (1) “preclude” Commerce from conducting sunset reviews, and (2)
require Commence to make an affirmative determination of likelihood without further inquiry in cases
where a respondent interested party fails to respon d to the notice of initiation in a sunset review
proceeding.
146 In order to understand why these claims are unfounded, it is first necessary to
understand what these US statutory and regulatory provisions provide and do not provide.

144. Section 751(c)(4)(A) provides that a responden t interested party may “waive” participation in
a sunset review proceeding. This allows, but does not require, a respondent interested party to
participate solely in the ITC’s portion of the sunset review concerning the likelihood of continuation
or recurrence of injury.
147 Should a respondent interested party explicitly choose to waive
participation in Commerce’s sunset review proceeding, section 751(c)(4)(B) directs Commerce to
conclude that revocation of the order would be li kely to lead to continuation or recurrence of
dumping.148

145. Section 351.218(d)(2) of Commerce’s Sunset Regulations provides: (1) the time, form and
content for an express waiver; (2) that failure to respond to a notice of initiation will be taken as an
implied waiver; and (3) that a waiver, whether express or implied, shall preclude acceptance of further
information from the waiving party. 149 Section 351.218(d) (2)(iii) – the specific provision that
Argentina complains of in its first submission – provides that where a respondent interested party fails
to respond to Commerce’s notice of initiation of a sunset review, the waiver of that respondent
interested party is presumed or implied.

146. Argentina’s claim fails in two significant respects. First, Argentina narrowly reads section
751(c)(4) and section 351.218(d)(2)(iii) in isolation from other statutory and non-statutory elements of
US laws and regulations governing the conduct of suns et reviews. As discussed in detail below, it is
clear that Section 751(c)(4) and section 351.218(d)(2)(iii) do not, in fact, preclude Commerce from
conducting a sunset review as required by Article 11.3, because, when a respondent interested party
fails to respond to Commerce’s notice of initiation of a sunset review, the affirmative likelihood
determination described in section 751(c)(4)(B) is limited to the party that failed to respond.
150

147. In addition, section 751(c)(4) does not alter or amend the requirements under other provisions
of US law for Commerce to in itiate and conduct sunset reviews generally in accordance with

146 Argentina's first submission, paras. 114-117.
147 19 USC. § 1675(c)(4)(A) (Exhibit ARG-1).
148 19 USC. § 1675(c)(4)(B) (Exhibit ARG-1).
149 19 C.F.R. § 351.218(d)(2) (Exhibit ARG-3).
150 See section 751(c)(4)(B) of the Act, providing that the affirmative likelihood determination
resulting from the waiver described in section 751(c)(4)(A) only applies “with respect to that party.” 19 USC. §
1675(c)(4)(B) (Exhibit ARG-1); see also, SAA at 881 (“If Commerce receives such a waiver, Commerce will
conclude that revocation or termination would be likely to lead to continuation or recurrence of dumping or
countervailable subsidies with respect to that submitter .”) (Emphasis added) (Exhibit US-11). The United
States notes that the portion of the SAA submitted by Argentina as Exhibit ARG-5 conveniently omits page 881.

Article 11.3. Principally, under section 751(c)(1) of the Act, Commerce remains obligated, five years
after an order’s imposition, to “conduct a review to determine . . . whether revocation of the . . . anti-
dumping duty order . . . would be likely to lead to continuation or recurrence of dumping ... .” 151 In
addition, section 75 1(c)(2) provides that “[n]ot later than 30 days before the fifth anniversary of the
date described in paragraph (1), the administering authority shall publish ... a notice of initiation of a
review.”152

148. Commerce regulations elaborate on these statutory obligations by providing details about the
timing of initiations, what is required to respond to a notice of initiation, and what information
Commerce requires from interested parties. 153 Section 751(c)(4) and s ection 351.218(d)(2)(iii) of
Commerce’s Sunset Regulations provide for a “waiver” where respondent interested parties do not
choose to participate in Commerce’s sunset review proceeding. The result of such a waiver is that,
with respect to the party waiving its right to part icipate, Commerce will conclude that revocation of
the order would be likely to lead to continuation or recurrence of dumping for that non-responding
party.154 Section 751(c)(4) is not a provision which precludes the conduct of a sunset review. Indeed,
regardless of whether a respondent interested part y affirmatively waives pa rticipation or Commerce
finds that the failure of the respondent interested party to file a substantive response or a complete
substantive response constitutes a waiver, Commer ce is still required by US law and its own
regulations to initiate and conduct the required sunset review.

149. Second, Argentina improperly reads Article 11.3 to require Commerce to conduct a full
sunset review proceeding even where the respondent interested parties have indicated – either by
means of an affirmative waiver or by a failure to re spond – that they have no interest in participating
in the review and where all existing evidence supports a determination that revocation would be likely
to lead to continuation or recurrence of dumping. Nothing in Article 11.3 specifically or the AD
Agreement generally requires authorities to engage in such a waste of their own resources and the
resources of private parties.155

150. Argentina argues that by concluding that revocation would be likely to lead to continuation or
recurrence of dumping in instances where a responde nt interested party waives its participation by
failing to respond to Commerce’s notice of initiation, Commerce somehow fails to “determine” –
within the meaning of Article 11.3 – whether dumping would be likely to continue or recur. 156 This
argument, however, fundamentally overlooks the practical consequences that waiver has on the
alternative conclusion. When viewed in light of these consequences, it is clear that section 751(c)(4)
and section 351.218(d)(2)(iii) are not obstacles to Commerce making the required likelihood
determination.

151. The consequence of a respondent interested pa rty’s decision not to participate in Commerce’s
review is the absence of information critical to the determination of whether dumping would be likely

151 19 USC. § 1675(c)(1) (Exhibit ARG-1).
152 19 USC. § 1675(c)(2) (Exhibit ARG-1). Section 751(c)(3) provides truncated time-lines for
completion of sunset reviews in instances where interested parties do not respond or provide inadequate
substantive responses to Commerce’s notice of initiation. 19 USC. § 1675(c)(3) (Exhibit ARG-1).
153 19 C.F.R. § 351.218(a)-(d) (Exhibit ARG-3).
154 19 USC. § 1675(c)(4)(B) (Exhibit ARG-1); 19 C.F.R. § 351.218(d)(2) (Exhibit ARG-3).
155 The SAA in discussing section 751(c)(3) states that this provision “is intended to eliminate needless
reviews. This section will promote administrative efficiency and ease the burden on agencies by eliminating
needless reviews while meeting the requirements of the [AD and SCM] Agreements. If parties provide no or
inadequate information in response to a notice of initiation, it is reasonable to conclude that they would not
provide adequate information if the agencies conducted a full-fledged review. However, where there is
sufficient willingness to participate and adequate indication that parties will submit information requested
throughout the proceeding, the agencies will conduct a full review.” SAA, at 880 (Exhibit US-11).

to continue or recur with respect to that non-res ponding party – specifically, information with respect
to that foreign producer’s or exporter’s (1) view as to the likely effect of revocation,
157 (2) volume and
value of exports of subject merchandise to the United States prior to the sunset review and the original
investigation,158 (3) percentage of the total exports of subject merchandise to the United States, 159 and
(4) position as to the existence of other information suggesting whether or not it is likely to continue
or resume dumping after revocation of the order. 160 Such information is within the control of foreign
producers and exporters and cannot generally be ob tained readily from other sources. Thus, an
affirmative statement from a foreign producer or e xporter that it will not participate in Commerce’s
review, or the failure of the resp ondent interested party to file a substantive response or a complete
substantive response, leaves Commerce in the posi tion of having to base its determination on the
views of domestic interested parties and informatio n already contained in the administrative record of
the sunset review proceeding. This information includes prior and current dumping margins,
Commerce’s original investigation determination, and any information provided by interested parties,
both the domestic and foreign interested partie s, in their substantive responses and rebuttal
responses.161

152. Under Commerce’s Sunset Regulations, domestic interested parties must notify their intent to
participate in Commerce’s review within 15 days of initiation (15 days prior to when respondent
interested parties are to submit th eir waivers, if any). A failure to do so results in automatic
revocation.
162 Thus, domestic interested parties who do not believe revocation would be likely to lead
to continuation or recurrence of dumping and, thus, no longer view continuation of the order as
necessary, will simply decline to state an intention to participate in the review and effectively agree to
the automatic revocation of the order.

153. In other words, it is to be expected that if domestic interested parties do submit substantive
responses, those responses inevitably will contain in formation that is supportive of, and not opposed
to, an affirmative finding of likelihood. Therefore, if a respondent interested party does not submit
information or argument in favor of revocation, th e only interested party information on the record
with respect to that respondent would be that of domestic interested parties in support of an
affirmative finding of likelihood and continuation of th e order. To the extent that other respondent
interested parties have submitted information for consideration in the sunset review proceeding,
Commerce also considers that information in making its final sunset determination.

154. It seems evident that Commerce could conduct a “review” and “determine” that revocation
would be likely to lead to continuation or recu rrence of dumping with respect to a particular
respondent interested party where that same party failed to file a complete substantive response to
Commerce’s notice of initiation of the sunset review. It is clear that the words “review” and
“determine” do not contain the broad substantive ru les suggested by Argentina. “Review” may be
defined as “a formal assessment of something with the intention of instituting change if necessary.”
163
“Determine” may be defined as to “[c]ome to a judicial decision; make or give a decision about
something ... [c]onclude from reas oning or investigation, deduce.” 164 “Deduce” is further defined as
to “[i]nfer, draw as a logical conclusion ( from something already known or assumed); derive by a

157 19 C.F.R. § 351.218(d)(3)(ii)(F) (Exhibit ARG-3).
158 19 C.F.R. § 351.218(d)(3)(iii)(B)-(C), (E) (Exhibit ARG-3).
159 19 C.F.R. § 351.218(d)(3)(iii)(D) (Exhibit ARG-3).
160 19 C.F.R. § 351.218(d)(3)(iv)(A)-(B) (Exhibit ARG-3).
161 See 19 C.F.R. § 351.308(f) (Exhibit US-3); and the SAA, at 879-880 (Exhibit US-11).
162 19 C.F.R. §§ 351.218(d)(1)(i) and 351.218(d)(iii)(B) (Exhibit ARG-3).
163 Concise Oxford English Dictionary (10th ed. 2001) (Exhibit US-24); see also New Shorter Oxford
English Dictionary 2582 (1993) (defining “review” as “[a]n inspection, an examination ... [a] general survey or
reconsideration of some subject or thing ... a retrospect, a survey of the past”).
164 New Shorter Oxford English Dictionary 651 (1993).

process of reasoning.” 165 Thus, while Article 11.3 – throug h the use of the words “review” and
“determine” – arguably requires Commerce to conduct a formal assessment of whether dumping is
likely to continue or recur that is supported by some type of reasoning and evidence, it does not
provide the procedures for conducting such an assessment or the analytical approach or evidence to be
employed in the assessment.

155. Where respondent interested parties have failed to respond to Commerce’s notice of initiation
of a sunset review, section 351.218(d)(2)(iii) pr ovides that these non-resp onding parties will be
considered to have waived their rights to participate in the proceeding. 166 Although the determination
to expedite a sunset review is made on a “cas e-by-case” basis, section 351.218(e)(1)(ii)(A) of
Commerce’s Sunset Regulations provides that Commerce normally will expedite the review where it
has not received substantive responses from foreign interested parties representing more than 50 per
cent of the total exports of the subject merchandise for the five-year period preceding the sunset
review.167 When Commerce has not received an adequate response from foreign interested parties (in
the aggregate), section 351.218(e)(1)(ii)(C) of Commerce’s Sunset Regulations provides that
Commerce will make its final likelihood determination on the basis of the facts available.168

156. Section 351.308(f) of Commerce’s Sunset Regulations provides that when Commerce makes
a likelihood determination on the basis of “facts available,” Commerce normally will rely on dumping
margins from the original investigation and any s ubsequent administrative reviews, as well as any
information submitted by interested pa rties in their substantive responses. 169 Thus, even in cases
where there is an inadequate response from foreign interested parties to th e notice of initiation,
Commerce will make the final like lihood determination on the evidence developed during the sunset
review proceeding to date.

157. Thus, with respect to the statutory instru ction in section 751(c)(4)(B) that Commerce
conclude that revocation would be likely to lead to continuation or recurrence of dumping with
respect to a waiving respondent interested party, this instruction merely reflects the extent and type of
information upon which Commerce would have to base its sunset determination in cases where a
respondent interested party waived participation. Section 351.218(d )(2)(iii) addresses this lack of
participation and the failure to supply the necessary information where a respondent interested party
fails to respond to the notice of initiation of a su nset review. As such, section 751(c)(4) and section
351218(d)(2)(iii) are not provisions that “precl ude” Commerce from cond ucting a “review” and
“determin[ing]” whether dumping is likely to continue or recur.

158. Argentina also fails to understand the role of these provisions in furthering compliance with
another important obligation of the AD Agreement relating to sunset re views. Article 11.4 instructs
as follows:

 “The provisions of Article 6 regarding ev idence and procedure shall apply to any
review carried out under this Article. Any such review shall be carried out
expeditiously ... .”
159. Article 6.14, in turn, provides as follows:

The procedures set out above are not intende d to prevent the auth orities of a Member
from proceeding expeditiously with regard to initiating an investigation, reaching

165 Id. at 613.
166 19 C.F.R. 351.218(d)(2)(iii) (Exhibit ARG-3).
167 19 C.F.R. 351.218(e)(1)(ii)(A) (Exhibit ARG-3).
168 19 C.F.R. 351.218(e)(1)(ii)(C) (Exhibit ARG-3).
169 19 C.F.R. 351.308(f) (Exhibit US-3).

preliminary or final determinations, whether affirmative or negative, or from applying
provisional or final measures, in accord ance with relevant provisions of this
Agreement.
160. “Expeditious” is defined as “promptly and efficiently.”
170 Thus, the AD Agreement should
not operate as a bar to the completion of reviews in as promptly and efficiently a manner as possible.
The waiver provisions of US law effectuate the expeditious completion of reviews by allowing a
determination to be made in a suns et review as soon as it becomes ev ident that a finding of likelihood
may be warranted. In other words, when a respondent interested party has chosen not to participate,
the statute instructs Commerce to make such an affirmative finding of likelihood because the evidence
before Commerce demonstrates that there is a likelihood of dumping with respect to the waiving party
if the order were to expire. Under these circumstances, a full-fledged sunset review would be fruitless
and a waste of administrative and party resources 171 – a result in direct contravention of the
instructions of Articles 6.14 and 11.4 of the AD Agreement.

2. Section 751(c)(4) of the Act and Sectio n 351.218(d)(2)(iii) of Commerce’s Sunset
Regulations are not inconsistent with Articles 6.1 and 6.2 of the AD Agreement
161. Argentina also claims that the provision in US law for expedited sunset reviews is
inconsistent with certain obligations in Article 6 of the AD Agreement regarding evidence and
procedure. Specifically, Argentina claims that section 751(c)(4) of the Act and
section 351.218(d)(2)(iii) of Commerce’s Sunset Regulations preclude Commerce, in expedited
sunset reviews, from observing the obligations containe d in: (1) Article 6.1 that all interested parties
have “ample opportunity to present in writing all ev idence which they consider relevant,” and (2)
Article 6.2 that all interest parties have a “full opportunity for the defence of their interests.”
172

162. As an initial matter, it is important to remember that any difference in the rules governing
evidence and procedure in expedited as compared to full reviews is not relevant to whether US laws
and regulations concerning expedited reviews mandate WTO-inconsistent action. Indeed, because the
evidentiary and procedural rules used in expedited re views are consistent with the obligations of the
AD Agreement, it is irrelevant that in so-called “ful l sunset reviews” the United States goes beyond
what is required of it under the AD Agreement. In other words, that the United States may afford
parties expanded opportunities to su bmit evidence and argument in a full sunset review is a matter of
US policy, not an obligation under the AD Agreement, and is not grounds to find fault with the
evidentiary and procedural rules governing expedited sunset reviews.

170 Merriam-Webster Online Dictionary (2002) (Exhibit US-25); see also New Shorter Oxford English
Dictionary 886 (1993) (defining “expeditious” as “[s]peedily performed or given; conducive to speedy
performance”).
171 Moreover, in light of the task before Commerce immediately following the entry into force of the
WTO Agreement – conducting reviews of 325 existing orders – prolonging reviews in cases where respondent
interested parties have waived participation would be an inefficient use of administrative resources, taking
resources away from those contested reviews involving large amounts of factual information and devoting them
to needlessly extended reviews involving little, if any, disagreement among the parties and a limited factual
record. Section 751(c)(4) is, thus, a means to allow Commerce to distribute its limited resources effectively to
the more contested and complicated of cases.
172 Argentina First Written Submission, paras. 120-122. Articles 6.1 and 6.2 apply to sunset reviews
by virtue of the cross-reference in Article 11.4 to Article 6.

(a) Section 751(c)(4) and Section 351.218(d)(iii)(2) Are Not Inconsistent with the Obligation
Under Article 6.1 to Provide Ample Opportunity to Submit Written Information
163. As to its substantive claims under Article 6, Argentina fails to demonstrate that either section
751(c)(4) or section 351.218(d)(4)(iii) impinges on any of the obligations it cites. Article 6.1 states as
follows:

All interested parties in an anti-dumping investigation shall be given notice of the
information which the authorities require and ample opportunity to present in writing
all evidence which they consider relevant in respect of the investigation in question.
164. Under US sunset laws and regulations, intere sted parties in expedited sunset reviews are
afforded “ample opportunity to present in writing all evidence which they consider relevant.”
Specifically, section 351.218(d)(3) of Commerce’s Sunset Regulations provides that interested parties
will have 30 days from the notice of initiation of the review to submit s ubstantive responses. In
addition to identifying information that is required of interested parties, 173
section 351.218(d)(3)(iv)(B) of Commerce’s Sunset Regulations provides that parties may provide
“any other relevant information or argument that the party would like [Commerce] to consider.” 174
Further, in section 351.218(d)(4) of Commerce’s Suns et Regulations, interested parties are afforded
the opportunity to rebut evidence and argument submitted in other parties’ substantive responses
within five days of their submission.175

165. Moreover, in cases where Commerce determines that the response to the notice of initiation
from the respondent interested parties is inad equate, section 351.309(e) of Commerce’s Sunset
Regulations affords interested parties the opportunity to comment on whether an expedited review is
appropriate.176 Thus, US law and Commerce’s regulations expressly provide parties with
opportunities to provide Commerce with any relevant information, to re but any relevant information
and argument submitted by other parties, and to co mment on the appropriateness of conducting an
expedited review in the first instance. Thus, Commerce’s Sunset Regulations fulfill the obligations of
Article 6.1 by informing the interested parties of the type of information that will be required in every
sunset review and by providing opportunities for submission of comments, rebuttal comments and any
other information the interested party believes is relevant to the proceeding.

166. Finally, it should be emphasized that the pr ovisions alleged by Argentina to be inconsistent
with Article 6.1 – section 751(c)(4) and section 3 51.218(d)(2)(iii) – are provisions that govern the
failure of a respondent interested party to particip ate in a sunset review proceeding in the first
instance. These provisions do not dictate the type or amount of information that respondent interested
parties may submit in a sunset review, but, instead, are relevant only when a respondent interested

173 Commerce regulations request that interested parties submit their contact information and that of
any legal counsel; the identification of the subject merchandise and country subject to review; the citation and
date of the notice of initiation; an expression of their willingness to participate and provide information in the
review; information and argument with respect to the likelihood of continuation or recurrence of dumping and
the likely dumping margin; and summaries of any findings of duty absorption, scope clarifications,
circumvention and/or changed circumstances. In addition, from respondent interested parties, Commerce asks
for the party’s individual weighted average dumping margin from the investigation and any subsequent reviews,
the party’s value and volume of exports of subject merchandise for the five years preceding the year of the
review’s initiation (including quarterly data for the last three years); the party’s value and volume of the party’s
exports of subject merchandise for the calendar year preceding the year of initiation of the original anti-dumping
investigation; and the party’s percentage of total exports of subject merchandise for the five calendar years
preceding the review’s initiation. 19 C.F.R. § 351.218(d)(3)(ii)-(iii) (Exhibit ARG-3).
174 19 C.F.R. § 351.218(d)(3)(iv)(B) (emphasis added) (Exhibit ARG-3).
175 19 C.F.R. § 351.218(d)(4) (Exhibit ARG-3).
176 19 C.F.R. § 351.309(e) (Exhibit US-3).

party has not responded to the notice of initiation of the sunset review by making the required first
submission, the substantive response. In other words, these provisions operate when a respondent
interested party has chosen not to avail itself of th e Article 6.1 rights that other provisions of the
regulations guarantee.

(b) Section 751(c)(4) of the Act and Sectio n 351.218(d)(2)(iii) of Commerce’s Sunset
Regulations Are Not Inconsistent with Article 6.2 of the AD Agreement
167. Article 6.2 addresses an interested party’s right to “a full opportunity for the defence of their
interests” and provides in relevant part:

Throughout the anti-dumping investigation all interested parties shall have a full
opportunity for the defence of their interests. To this end, the authorities shall, on
request, provide opportunities for all intere sted parties to meet those parties with
adverse interest, so that opposing view s may be present and rebuttal arguments
offered.
168. There is nothing in section 751(c)(4), section 351.218(d)(2)(iii), or any other provision of the
US statute or regulations governing sunset reviews that precludes or impedes this opportunity.
Indeed, as explained above, inte rested parties are given ample opportunity to submit written
information and argument, rebut information and argument submitted by other parties, and even
comment on the appropriateness of conducting an expedited review.

169. Furthermore, under Commerce’s Sunset Regulations, Commerce “normally” will conduct an
expedited review when the aggregate response from th e respondent interested parties is found to be
inadequate.
177 Thus, nothing in US sunset laws or regulations would preclude Commerce from
conducting a full sunset review, notwithstanding the lack of an adequate response from respondent
interested parties, were the circumstances found to warrant a full sunset review.

170. Regardless of whether an expedited or full re view is conducted, all interested parties are
afforded the right to fully defend their interests. The respondent interested party who submits a
substantive response in an expedited sunset review is afforded the same opportunity to have its
substantive response considered in the final likelihood determination, to rebut evidence and argument
submitted by other parties, and to comment on the appropriateness of an expedited review. Indeed,
section 351.308(f)(2) of Co mmerce’s Sunset Regulations provides that Commerce normally will
consider the substantive submissions of the intere sted parties in making the likelihood determination
in an expedited sunset review. Argentina has not demonstrated that simply because Commerce
conducts an expedited, rather than a full, suns et review, either section 751(c)(4) or section
351.218(d)(2)(iii) precludes respondent interested pa rties from having a full opportunity for the
defence of their interests.
178

177 19 C.F.R. § 351.218(e)(1)(ii)(c)(2) (Exhibit ARG-3).
178 Although the United States demonstrates below that all the foreign interested parties in the sunset
review of OCTG from Argentina were afforded their full rights of defence, assuming arguendo that this were
not the case, it would not be enough for a Member asserting an “as such” claim to establish that, in a particular
case, a full right of defence may have been lacking. To find a violation “as such,” Argentina would have to
establish that US sunset laws or regulations actually preclude the full right of defence. See United Sates -
Section 129(c)(1) of the Uruguay Round Agreements Act, WT/DS221/R, Report of the Panel adopted 30 August
2002, para. 6.22 [hereinafter “ US - Section 129 "], citing to United States - Anti-Dumping Act of 1916 ,
WT/DS136/AB/R, WT/DS162/AB/R, Report of the Appellate Body adopted 26 September 2000, paras. 88-89.

B. THE PANEL SHOULD REJECT ARGENTINA’S CLAIMS CONCERNING AN ALLEGED “IRREFUTABLE
PRESUMPTION” AND ITS INCONSISTENCY WITH ARTICLE 11.3 OF THE AD AGREEMENT
171. In Section VII. B of its First Submission, Argentina includes a series of claims that are
somewhat difficult to identify, but seem to amount to a recycled version of Argentina’s arguments in
Section VII.A that Commerce does not conduct a “review” or make a “determination.” As the United
States understands this section, the claims are based on the factual assertion that Commerce has a
practice in sunset reviews of making an irrefutabl e presumption of a likelih ood of continuation or
recurrence of dumping.179 Based on this factual assertion, Argentina claims that: (1) the practice and
the instruments on which it allegedly is based are inconsistent, as such, with Article 11.3 of the AD
Agreement;180 (2) the practice and the instruments on whic h it allegedly is based are inconsistent, as
applied generally, with Article 11.3 of the AD Agreement; 181 and (3) the Commerce determination in
the sunset review involving OCTG from Argentina is inconsistent with Article 11.3 to the extent that
it applied the alleged practice/presumption.182

172. As the United States has demonstrated above, the Panel need not consider claim (1), because
it is not within the Panel’s terms of reference. Ne vertheless, in this section, the United States will
respond to Argentina’s substantive arguments concerning all three claims. As demonstrated below,
Argentina’s claims must fail because: (1) the alle ged irrefutable presumption does not exist; (2) the
instruments that allegedly give raise to this ir refutable presumption do not constitute challengeable
measures for purposes of the DSU; and (3) even if the instruments we re subject to challenge, two of
them – the Sunset Policy Bulletin and Commerce practice – are not “mandatory” within the meaning
of the mandatory/discretionary distinction.

1. Argentina’s “irrefutable presumption” does not exist
173. As noted above, all of Argentina’s claims in Section VII.B of its first submission hinge upon
the existence of a Commerce “irrefutable presumpt ion” in sunset reviews that a continuation or
recurrence of dumping is likely. As the party a sserting this fact, Argentina bears the burden of
proving it. Argentina fails to satisfy this burden, because, in fact, the alleged irrefutable presumption
does not exist.

174. Significantly, Argentina cannot point to an y document that establishes its “irrefutable
presumption.” It does not allege that any US statutory provision establishes the presumption, nor
could it, because there is no such provision. Instead, it turns to three items: the SAA, the Sunset
Policy Bulletin, and supposed Commerce “practice.” Let us examine each of these items in turn.

175. With respect to the SAA, Argentina quotes the following passage as evidence of its alleged
“irrefutable presumption”:
183

[19 USC. § 1675a(c)] establishes standards for determining the likelihood of
continuation or recurrence of dumping. Under [§ 1675(c)(1)], Commerce will

179 Section VII.B itself is ambiguous as to the precise source of this alleged practice.
180 In its first submission, para. 138, Argentina asserts that: “Taken together, the US sunset statutory
provisions, the SAA, and the Sunset Policy Bulletin prescribe a standard that is inconsistent with Article 11.3 of
the Anti-Dumping Agreement.” This appears to be an “as such” claim.
181 In its first submission, para. 137, Argentina asserts that: “Thus, because it is the Department’s
consistent practice to employ in its sunset reviews an irrefutable presumption of likely dumping, the United
States is acting inconsistently with Article 11.3 of the Anti-Dumping Agreement.” This appears to be an “as
applied” claim concerning Commerce’s behaviour in sunset reviews in general, not just the review on OCTG
from Argentina.
182 See Argentina's first submission, paras. 124 and 147.
183 Argentina's first submission, para. 142, quoting from the SAA at 889-90 (underscoring added).

examine the relationship between dumping margins, or the absence of margins, and
the volume of imports of the subject merchandise, comparing the periods before and
after the issuance of an order or the acceptance of a suspension agreement. For
example, declining import volumes accompan ied by the continued existence of
dumping margins after the issuance of an order may provide a strong indication that,
absent an order, dumping would be likely to continue, because the evidence would
indicate that the exporter needs to dump to sell at pre-order volumes.

[E]xistence of dumping margins after the order, or the cessation of imports after the
order, is highly probative
 of the likelihood of continuation or recurrence of dumping.
176. “Irrefutable” means “[u]na ble to refute or disprove.” 184 The phrases in the above-quoted
passage like “For example,” “provide a strong indication,” and “highly probative” are not indicative
of a presumption that cannot be refuted or disproved, assuming they give rise to a presumption at all.
Thus, this passage from the SAA – the only passage on which Argentina relies – cannot be the source
of its alleged “irrefutable presumption.”

177. Another item cited by Argentina as a potential source for its “irrefutable presumption” is the
Sunset Policy Bulletin, from which Argentina quotes the following:
185

[T]he Department normally will determine that revocation of an anti-dumping order
or termination of a suspended dumping investigation is likely to lead to continuation
or recurrence of dumping where –
(a) dumping continued at any level above de minimis after the issuance of the
order or the suspension agreement, as applicable;
(b) imports of the subject merchandise ceased after issuance of the order or
suspension agreement, as applicable; or
(c) dumping was eliminated after the issuance of the order or the suspension
agreement, as applicable, and import volumes for the subject merchandise
declined significantly.
Argentina asserts that the three criteria id entified in quoted passage are “the natural
consequences of the imposition of an anti-dumping measure.” 186 The implication is
that because these consequences always will follow the imposition of an anti-
dumping measure, Commerce’s consideration of them gives rise to the “irrefutable
presumption;” i.e., because one or more of thes e consequences always will be
present, there can be no refutation of the presumption of likelihood.
178. There are at least two problems with this argument. First, the quoted passage clearly states
that Commerce “normally” will determine likelihood wh ere the described facts are present. The use
of “normally” is incompatible with the notion of an “irrefutable presumption.”

184 New Shorter Oxford English Dictionary (1993), page 1419.
185 Argentina's first submission, para. 145, quoting from the Sunset Policy Bulletin at 18,872
(underscoring added). Note that the term “suspension agreement” used in the quoted passage is the US term for
an “undertaking” within the meaning of Article 8 of the AD Agreement.
186 Id., para. 146.

179. Second, Argentina is wrong when it suggests that the criteria set forth in the quoted passage
are the “natural” or only consequences of the imposition of an anti-dumping measure. To the
contrary, these criteria are only indicia of the c onsequences of the imposition of an anti-dumping
measure with respect to fir ms that must dump in order to maintain a presence in the US market. 187 If
firms have to dump to remain competitive in the US market, one would not be surprised to see
“dumping continued at [a] level above de minimis after the issuance of the order or the suspension
agreement, as applicable.” Likewise, if firms have to dump to remain competitive in the US market,
one might expect to find that “imports of the subject merchandise ceased after issuance of the order or
suspension agreement, as applicable.” Finally, if firms must dump to be successful in the US market,
one likely consequence is that “dumping was eliminated after the issuance of the order or the
suspension agreement, as applicable, and import volumes for the subject merchandise declined
significantly.”

180. However, there is at least one other cons equence of the imposition of an anti-dumping
measure that is equally “natural” – to use Argentina’s terminology – at least for firms that are capable
of competing fairly. This consequence is that after the imposition of an anti-dumping measure,
dumping is eliminated and import volumes for the subject merchandise remain steady or increase. If
this scenario should take place – and the scenario do es not seem on its face to be implausible – it
would seem to be an indicator of no likelihood of a continuation or recurrence of dumping that
Commerce ought to take into account.

181. In fact, that is precisely what Commerce in the Sunset Policy Bulletin explains it normally
will do:
188

[T]he Department normally will determine th at revocation of an anti-dumping order
or termination of a suspended dumping investigation is not likely to lead to
continuation or recurrence of dumping where dumping was eliminated after issuance
of the order or the suspension agreement, as applicable, and import volumes remained
steady or increased.
 Notwithstanding that this statement appears on the same page and in the same column of the
Federal Register as the passage quoted by Argentina, Argentina avoids any reference to it, for
obvious reasons: it completely undermines Argentina’s case and rather spoils Argentina’s story. This
passage demonstrates that the Bulletin does nothing more than describe what Commerce “normally”
will do when presented with different factual sc enarios. Sometimes Commerce “normally” will
determine likelihood, and at other times it “normally” will not.

182. This is hardly evidence of an “irrefutable presumption” of likelihood. Moreover, Argentina
offers no evidence – let alone demonstrates – that it is impossible in all cases for firms subject to an
anti-dumping measure to maintain or increase their presence in the US market without dumping. Put
differently, Argentina offers no evidence that the only way for a firm to maintain its presence in the
US market is to dump.

183. The final piece of “evidence” offered by Argentina is its exhibit ARG-63, which purports to
exhaustively analyze Commerce’s practice in sunset reviews and demonstrate the existence of the
“irrefutable presumption.” In fact, Exhibit ARG-63 does nothing of the sort.

184. What Exhibit ARG-63 actually shows is that the overwhelming majority of Commerce sunset
reviews are uncontested by one side or the other. Of the 291 sunset reviews discussed in Exhibit

187 The United States says “indicia” because as demonstrated by the use of the word “normally,” the
criteria in the quoted passage are not dispositive.
188 Sunset Policy Bulletin at 18,872 (ARG-35).

ARG-63, 74 were reviews in which no domestic in dustry party participated and in which Commerce
revoked the anti-dumping order in question.
189 In addition, if one looks closely at Exhibit ARG-63,
one finds that there were 178 cases in which respon dent interested parties chose not to participate
either by not responding to Commerce’s notice of initiation, submitting an affirmative waiver in
response to the notice of initiation, or a combination of the two. 190 Thus, of the 291 sunset reviews
discussed in Exhibit ARG-63, 87 per cent of those reviews were uncontested. Even if one limits
oneself to the 217 reviews in which at least one domestic interested party expressed an interest,
82 per cent of those reviews were uncontested by respondent interested parties.

185. By the US count, this leaves 35 cases (only 13 per cent) where the parties may have contested
the existence of likelihood to some extent. In these cases, Commerce found likelihood, but that fact
does not establish the existence of an “irrefutable pr esumption.” Argentina appears to assert that the
fact that “no respondent was able to overcome th e irrefutable presumption that dumping would likely
continue or recur estab lished by the SAA and the Sunset Policy Bulletin criteria” proves that these
documents do, in fact, establish such a presumption.
191 This is nothing more than circular reasoning,
because it assumes the existence in these documen ts of an “irrefutable presumption.” As
demonstrated above, however, these documents do not establish an “irrefutable presumption.”

186. It may well be that in these 35 cases, the evidence presented a scenario that satisfied one or
more of the criteria that the Sunset Policy Bulletin identifies as indicia of likelihood. If so, the
respondent interested parties may have been unable to demonstrate that the facts of their case called
for a departure from the “normal” conclusion. It coul d be the case that one or more, or maybe all, of
these parties may have been in the situation where they were not capable of competing in the US
market without dumping. We simply do not know.

187. However, there is one case, the record of which is before the Panel, and which speaks
volumes about the emptiness of Argentina’s “analysis.” That case is the Commerce sunset review of
OCTG from Argentina and Siderca’s response to the Commerce noti ce of initiation, which Argentina
includes as Exhibit ARG-57 to its First Submission.

188. Notwithstanding the fact that Siderca had other opportunities to submit information and
argument, and notwithstanding Argentina’s claims of rampant inconsistencies with Article 6, Exhibit
ARG-57 represents the sum total of what Siderca had to say about the issue of likelihood of dumping.
This limited statement is revealing in many ways.

189. In Exhibit ARG-57, Siderca did not assert that it would not export subject merchandise to the
United States if the order were revoked. It did not even assert that it would not dump subject
merchandise in the United States if the order were revoked. Instead, all that it said was that:
“Revocation of the order would not result in anti-dumping margins above de minimis.”
192

190. If Exhibit ARG-57 is an example of the quality of the factual and legal submissions of
respondent interested parties in Commerce sunset revi ews, then it is small wonder that the percentage
of affirmative likelihood determinations is high in those few cases where likelihood is contested.

189 Argentina’s self-serving and unsubstantiated assertion in footnote 131 of its first submission that
these sunset reviews are not really “reviews” is just that: self-serving and unsubstantiated.
190 The cases break down as follows: (1) in 160 cases, no respondent interested party submitted a
response to Commerce’s notice of initiation; (2) in 5 cases, respondent interested parties submitted an
affirmative waiver of participation; and (3) in 13 cases, there was a combination of no responses and affirmative
waivers from the respondent interested parties.
191 Argentina's first submission, para. 129, fifth bullet.
192 Exhibit ARG-57, page 2. Siderca then goes on to refer to the de minimis standard for investigations
in Article 5.8 of the AD Agreement, a standard which does not even apply to sunset reviews under Article 11.3.

Assuming arguendo that a presumption even exists, Exhibit ARG-57 does not establish that the
presumption is irrefutable. Instead, it establishes that in at least one case, no serious attempt was
made to refute it.

191. The remainder of Argentina’s argument co ncerning the existence of its “irrefutable
presumption” is nothing more than a repetition of its arguments in Section VII.A of its first
submission concerning Commerce’ s alleged failure to conduct a “review” and “determine”
something.193 This has nothing to do with whether an “irrefutable presumption” exists.

192. In summary, Argentina fails to meet its burden of proof; i.e., it fails to establish the existence
of its alleged “irrefutable presumption.” As a result, all of its claims in Section VII.B must fail.

2. Assuming arguendo that a Commerce “irrefutable p resumption” actually exists, the
Sunset Policy Bulletin and Commerce “practice”, as such, cannot be found to be
inconsistent with Article 11.3 of the AD Agreement
193. Even if one assumed arguendo that a Commerce “irrefutable presumption” actually exists, the
Sunset Policy Bulletin and Commerce’s practice, as such, cannot be found to be inconsistent with
Article 11.3 of the AD Agreement. Neither th e Bulletin nor Commerce practice constitutes a
“measure,” and even if they we re considered measures, neither mandates WTO-inconsistent action
nor precludes WTO-consistent action.

194. For something to be a measure for purposes of the WTO, it must “constitute an instrument
with a functional life of its own” – i.e., it must “ do something concrete, independently of any other
instruments.”
194 Neither the Bulletin nor Commerce prac tice constitutes a legal instrument with a
functional life of its own under US law. Whatever authority Commerce has to act comes from the
statute and its regulations. Neither the Bulletin nor Commerce practice authorizes Commerce to do
anything.

195. With respect to the Bulletin, it has no independent legal status, but rather is comparable to
agency precedent. The purpose of the Bulletin is to provide guidance with respect to sunset reviews
and Commerce’s conduct of them, both in terms of the procedural and substantive issues that may
arise. However, Commerce is not bound by the Bulletin as it would be by the statute or its
regulations. Like agency precedent, Commerce may depart from the Bulletin in any particular case,
so long as it explains its reasons for doing so.

196. Therefore, it is not surprising that the panel in US - Japan Sunset found that the Bulletin did
not constitute a measure. According to that panel:
195

The Bulletin provides guidance on certain methodological issues regarding the
applicable statutory and regulator provisions. In our view . . . the Bulletin, in and of
itself, does not mandate any obligatory behaviour. On its face, the Bulletin clearly
states that sunset reviews are to be carried out in accordance with the provisions of
the Statute and the Regulations. Japan has pointed to no other provision in the US
legislation that would suggest that the Bulletin can in fact operate independently from
other legal instruments under US law in such a way as to mandate a particular course
of action.

193 See, e.g., Argentina's first submission, para. 131, in which Argentina complains about Commerce’s
failure to use “fresh information gathered during the course of the sunset review ( i.e., a prospective analysis), as
required by Article 11.3 of the Anti-Dumping Agreement.”
194 Export Restraints, para. 8.85 (italics in original).
195 US - Japan Sunset, paras. 7.125-7.126.

We therefore find that the Sunset Policy Bulletin , in and of itself, is not a legal
instrument that operates so as to mandate a course of action. It follows that the
Bulletin can not constitute a measure th at can be challenged in WTO dispute
settlement proceedings.
197. Argentina has not provided any evidence to support the notion that the Bulletin constitutes a
measure with an independent functional life of its own. The only piece of information Argentina has
provided is a quote from a US court decision which states that “[t]he Sunset Policy Bulletin parallels
the language of the SAA.”
196 However, this statement merely in dicates that the Bulletin’s language
parallels that of the SAA. It says nothing about the legal status of the Bulletin.

198. The same principles apply with respect to Co mmerce practice. It is well-established that
Commerce is not bound by its own administrative practice, but instead may depart from it as long as it
explains its reasons for doing so.
197 Therefore, it is not surprising that prior panels have found that
Commerce’s administrative practice does not constitute a measure for purposes of the WTO. As
explained by the panel in the India Steel Plate case:198

The practice India has challenged is not, on its face, within the scope of the measures
that may be challenged under Article 18.4 of the AD Agreement. In particular, we do
not agree with the notion that the practice is an “administrative procedure” in the
sense of Article 18.4 of the Agreement. It is not a pre-established rule for the conduct
of anti-dumping investigations. Rather, ... a practice is a repeated pattern of similar
responses to a set of circumstances – that is, it is the past decisions of the USDOC . . .
. India argues that at some point, repetition turns the practice into a “procedure”, and
hence into a measure. We do not agree. That a particular response to a particular set
of circumstances has been repeated, and may be predicted to be repeated in the future,
does not, in our view transform it into a measure. Such a conclusion would leave the
question of what is a measure vague and subject to dispute itself, which we consider
an unacceptable outcome. Moreover, we do not consider that merely by repetition, a
Member becomes obligated to follow its prac tice. If a Member were obligated to
abide by its practice, it might be possible to deem that practice a measure. The
United States, however, has asserted that under its governing laws, the USDOC may
change a practice provided it explains its decision.
 The panel in the US - Japan Sunset case also found that “practice as such can not be
challenged before a WTO panel.”
199

199. Even if the Bulletin and Commerce’s practice could be regarded as measures, they
nonetheless could not be considered WTO-inconsiste nt because neither “measure” is “mandatory;”
i.e., neither requires WTO-inconsistent actio n or precludes WTO-consistent action. 200 The Appellate
Body and several panels have explained the distinction between mandatory and discretionary
measures. A Member may challenge, and a WTO panel may find against, a measure “as such” only if

196 Argentina’s first submission, para. 144, quoting from AG Dillinger Huettenwerke v. United States ,
193 F. Supp. 2d 1339 (CIT 2002) (Exhibit ARG-15a).
197 See, e.g. , Rhodia, Inc. v. United States , 240 F. Supp. 2d 1247, 1253 (CIT 2002), in which
Commerce’s reviewing court, the US Court of International Trade, stated as follows: “As long as Commerce
properly explains its reasons, and its practice is reasonable and permitted by the statute, Commerce’s practice
can and should continue to change and evolve.”
198 United States – Anti-Dumping and Countervailing Measures on Steel Plate from India ,
WT/DS206/R, Report of the Panel adopted 29 July 2 002, para. 7.22 (citation omitted) [hereinafter “ US - India
Plate”].
199 US – Japan Sunset, para. 7.131.
200 Export Restraints, paras. 8.126-8.132.

the measure “mandates” action that is inconsistent with WTO obligations, or “precludes” action that is
WTO-consistent.201 In accordance with the normal WTO rules on the allocation of the burden of
proof, it is up to the complaining party to demonstrate that any challenged measure mandates WTO-
inconsistent action or precludes WTO-consistent action.202

200. Argentina has not provided any evidence whatsoever that Commerce is bound by either the
Bulletin or its administrative practice. This is no t surprising, because, as demonstrated above, as a
matter of US law, Commerce is not so bound. However, if Commerce is not bound by these
instruments, they cannot be said to mandate an y action by Commerce, let alone WTO-inconsistent
action.

201. While Argentina does not provide any evidence about the status of the Bulletin or Commerce
administrative practice under US law, it does cite US - Countervailing Measures for the proposition
that practice can be subject to WTO challenge.
203 However, Argentina’s reliance on US -
Countervailing Measures is misplaced.

202. In US - Countervailing Measures , the panel’s characterization of its findings relating to
Commerce’s “method” was not appealed, and the Appellate Body did no more than accept the panel’s
characterization. Moreover, at the panel stage, this issue was also not disputed; the EC was
challenging two Commerce privatization methodologies applied in twelve specific countervailing
duty investigations, and the United States focused its argumentation on the substantive issues. That
the panel referred to these methodologies in this manner, and the Appellate Body thereafter, thus
provides no guidance as to how either a panel or the Appellate Body would answer the question of
whether non-binding administrative precedent, or practice, can be independently challenged as a
measure, and whether, if it could be so challenged, it mandates a breach of a particular obligation. To
the contrary, when panels have been faced with this question, they have uniformly concluded that US
administrative practice cannot, as such, be challenged as a measure.
204

203. And, as mentioned before, even if administra tive practice could be ch allenged as a measure,
the Appellate Body has consistently applied the ma ndatory/discretionary distinction to find that
measures that do not mandate a breach of an obligation do not breach that obligation. Thus, the
findings in US-Countervailing Measures , as discussed above, do not support Argentina’s assertion
that either the Bulletin or Commerce practice can be challenged “as such.”205

201 United States - Anti-Dumping Act of 1916 (“1916 Act ”), WT/DS136/AB/R, WT/DS162/AB/R,
Report of the Appellate Body adopted 26 September 2000, paras. 88-89; United States - Section 211 Omnibus
Appropriations Act of 1998, WT/DS176/AB/R, Report of the Appellate Body adopted 2 February 2002, para.
259; see also Export Restraints, paras. 8.77-8.79; US - Section 129, para. 6.22.
202 Brazil – Export Financing Programme for Aircraft – Second Recourse by Canada to Article 21.5 of
the DSU, WT/DS46/RW//2, Report of the Panel, adopted 23 August 2001, paras. 5.49-5.50.
203 Argentina's first submission, para. 139, citing United States - Countervailing Measures Concerning
Certain Products from the European Communities , WT/DS212/AB/R, Report of the Appellate Body adopted 8
January 2003 [hereinafter US - Countervailing Measures].
204 E.g., US - India Plate, paras. 7.22-7.24; Export Restraints, paras. 8.126, 8.129-8.130.
205 With respect to the SAA, it is simply legislative history, albeit legislative history of an authoritative
nature. Under the US legal system, legislative history may be used to interpret a statute, but cannot change the
meaning of , or override, the statute to which it relates. As found by the panel in US Export Restraints , para.
8.99, the SAA does not have “an operational life or status independent of the statute such that it could, on its
own, give rise to a violation of WTO rules. Independent of the statute, the SAA does not do anything; rather it
interprets (i.e., informs the meaning of) the statute.” (Italics in original). Thus, the SAA, in principle, could be
taken into account for purposes of determining whether the US statute imposes the “irrefutable presumption”
alleged by Argentina. However, as demonstrated above, the SAA, in fact, does not contain an “irrefutable
presumption,” nor does it require the statute to be interpreted so as to impose one.

3. Assuming arguendo that a Commerce “irrefutable p resumption” actually exists, the
Sunset Policy Bulletin and Commerce “practice,” as applied generally, cannot be found
to be inconsistent with Article 11.3 of the AD Agreement
204. In paragraph 137 of its First Submission , Argentina alleges that “because it is the
Department’s consistent practice to employ in its sunset reviews an irrefutable presumption of likely
dumping, the United States is acting inconsis tently with Article 11.3 of the Anti-Dumping
Agreement.” This appears to be a claim that Commer ce practice, as applied gene rally, is inconsistent
with Article 11.3.

205. The United States is not certain what Argentina means by this claim of “practice, as applied
generally.” However, it appears to be nothing more than an attempt to get around the extensive body
of panel reports finding that “practice as such can not be challenged before a WTO panel.”
206

206. Argentina bears the burden of proof with respect to this claim. In the view of the United
States, Argentina has not satisfied its burden to present a prima facie case in that it has not explained
how a general practice can suddenly become subjec t to challenge if the label “as applied” is
substituted for the label “as such.” In addition, Ar gentina also has failed to demonstrate that the
“irrefutable presumption” on which this claim is based exists.

4. Commerce’s Sunset Determination in OCTG fr om Argentina was not inconsistent with
Article 11.3 because of an “irrefutable presumption”
207. Although most of Section VII.B of Argentina’s first submission seems to be devoted to an “as
such” claim regarding Commerce sunset review practice, the heading to Section VII.B and the very
last paragraph – paragraph 147 – do refer to th e Commerce sunset determination in OCTG from
Argentina.207 According to Argentina, this determination “was inconsistent with Article 11.3 of the
Anti-Dumping Agreement because it was based on an irrefutable presumption under US law ... .”208

208. This claim must be rejected because, as demonstrated above, Argentina has failed to prove
that there is an “irrefutable presumption” unde r US law. In addition, Argentina has failed to
demonstrate that an “irrefutable presumption” was applied in the OCTG case. To the contrary, the
United States has already demo nstrated that the one Argentine company that responded to
Commerce’s notice of initiation – Siderca – did not make any attempt to show that it would not dump
if the order were revoked. Instead, it merely asserted that any dumping margins would be de minimis
based on the standard applicable to initial anti-dumping investigations. Thus, assuming arguendo that
any sort of presumption exists at all, what Siderca’s response shows is not that the presumption is
“irrefutable,” but rather that it was “unrefuted” in the OCTG case.

C. C
OMMERCE’S SUNSET DETERMINATION IN OCTG FROM ARGENTINA IS NOT INCONSISTENT
WITH ARTICLES 11, 2, 6, OR 12 OF THE AD AGREEMENT
209. In Section VII.C of its First Submission, Arge ntina essentially recycles many of its “as such”
arguments regarding these procedures, this time in the context of the Commerce sunset determination
in OCTG from Argentina. As demonstrated ab ove, however, Commerce’s expedited sunset review
procedures are not inconsistent, as such, with US obligations under the AD Agreement. If these
procedures are not WTO-inconsistent “as such,” they do not automatically become WTO-inconsistent

206 US - Japan Sunset, para. 7.130.
207 As noted in Section IV, above, Argentina’s panel request claimed an inconsistency with Article 11.3
based on the use of an irrefutable presumption only in connection with the sunset review of OCTG from
Argentina.

when they are applied. Instead, Argentina must prove that the manner in which these procedures were
applied resulted in an inconsistency with one of the AD Agreement provisions that it cites. Argentina
fails to make such a showing.

1. Commerce’s Determination to “expedite” the Sunset Review of OCTG from Argentina
is not inconsistent with the AD Agreement
210. Argentina’s first claim with respect to Commer ce’s application of US expedited sunset laws,
regulations, and procedures is that “Siderca was deem ed to have waived its ri ght to participate in the
sunset review, despite its full cooperation with” Commerce and in violation of Articles 11 and 6 of the
AD Agreement.209

211. The facts, however, do not support Argentin a’s claim. Most importantly, Siderca was not
deemed to have waived its right to participate in the sunset review. Rather, in keeping with
section 351.218(d)(3) of Commerce’s Sunset Regulations, Commerce found that Siderca submitted a
complete substantive response to the notice of initiation. 210 Commerce also found, however, that no
other respondent interested part y submitted a complete substantiv e response and that the “combined-
average percentage of Siderca’s exports of OCTG to the United States with respect to the total exports
of the subject merchandise to the United St ates was significantly below 50 per cent.” 211 Thus, in
accordance with section 351.218(e)(1)(ii)(A) of Commerce’s Sunset Regulations, Commerce
determined to expedite the sunset review of the anti-dumping duty order on OCTG from Argentina.212

212. Additional evidence that Commerce did not deem Siderca to have waived participation in the
sunset review is Commerce’s own regulatory waiver provision. Section 351.218(d)(2) of
Commerce’s Sunset Regulations (“Waiver of response by a respondent interested party to a notice of
initiation”) reads:

(i) Filing a statement of waiver. A respondent interested party may waive
participation in a sunset review before the Department [of Commerce] under section
751(c)(4) of the Act by filing a statement of waiver ... .
(ii) Contents of statement of waiver. Every statement of waiver must include a
statement indicating that the respondent inte rested party waives participation in the
sunset review ...
(iii) No
 response from a respondent interested party. The Secretary [of
Commerce] will consider the failure by a respondent interested party to file a
complete substantive response to a notice of initiation under paragraph (d)(3) of this
section as a waiver of participation in a sunset review before the Department [of
Commerce].213
213. As these provisions make clear, there are two methods for a respondent interested party to
waive its right to participate in a sunset review: (1) submit a statement affirmatively waiving
participation; or (2) fail to submit a substantive response to Commerce’s notice of initiation and allow
Commerce to deem its non-response as a waiver of its right to participation. Importantly, with respect

209 Argentina's first submission, paras. 148-155.
210 Adequacy Memorandum, at 1-2 (Exhibit ARG-50).
211 Id. In fact, by its own admission, Siderca had zero exports of subject merchandise to the United
States in the five years preceding the initiation of the sunset review of OCTG from Argentina. See Exhibit
ARG-57.
212 Id.
213 19 C.F.R. § 351.218(d)(2)(iii) (emphasis added) (Exhibit ARG-3).

to the latter, Commerce’s waiver regulation provides that when a
 respondent interested party fails to
submit a substantive response, that failure will be deemed a waiver of that respondent interested
party’s participation in the sunset review. 214 As a general matter, Commerce is bound to follow its
own regulations.215 Consequently, Commerce would not have had the authority under its regulations
to “deem” Siderca to have waived its right to participate in the sunset review of OCTG from
Argentina because Siderca did not fail to file an adequate response but, rather, filed a complete
substantive response.216

214. Argentina also claims that Commerce’s expedite d sunset review resulted in the application of
facts available despite Siderca’s “full cooperation w ith [Commerce].” Argentina again misstates the
facts. In the sunset review of OCTG from Argentina, Commerce received only one complete
substantive response from a respondent interested pa rty – Siderca’s. Thus, as to the non-responding
respondent interested parties, Commerce was left in a position – consistent with Article 6.8 of the AD
Agreement – to apply facts available. Pursuant to the Sunset Regulations, Commerce used for the
final sunset determination as the facts available all the information on the record of the sunset review
up to that time: (1) the findings of dumping from the original investigation; and (2) the information
contained in the substantive responses of the intere sted parties, Siderca and the domestic interested
parties.
217 Therefore, although Commerce used the fa cts available to make the final sunset
determination of likelihood, Commerce did not apply facts available to the issue of whether there was
a likelihood that dumping would continue or recur if the order were revoked with respect to Siderca
specifically, because the sunset determination is ma de on an order-wide basis, not a company-specific
basis.218

2. Commerce conducted a sunset review for the anti-dumping order of OCTG from
Argentina and fully considered all record information in making the Final Sunset
Determination
215. Argentina argues that because Commerce conducted an expedited sunset review, it “did not in
fact conduct a ‘review’ within the meaning of Article 11.3” of the anti-dumping duty order on OCTG
from Argentina. 219 As explained above, US laws and regulations providing for the conduct of
expedited sunset reviews do not violate any of the provisions of the AD Agreement. As such, their
mere application in the instant review is not proof of an inconsistency with any provision of the AD

214 See 63 Fed. Reg. at 13518 (Exhibit US-3); see also SAA, at 881, discussing waiver provision in the
statute at section 751(c)(3) (Exhibit US-11).
215 See Oy v. United States, 61 F.3d 866, 871 (Fed. Cir. 1995) (“As a general rule, an agency is required
to comply with its own regulations.”); Paralyzed Veterans v. West, 138 F.3d 1434, 1436 (Fed. Cir. 1998) (“It is
axiomatic that an agency must act in accordance with applicable statutes and its regulations.”). The Federal
Circuit (“Fed. Cir”) is the Court of Appeals for challenges to Commerce and ITC determinations in anti-
dumping and countervailing duty cases.
216 Commerce’s Issues and Decision Memo states “[i]n 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 Sunset Decision Memorandum at 5 (Exhibit
ARG-51). Although based on this language it may appear that Commerce deemed all respondent interested
parties to have waived their participation in the OCTG sunset review, in fact, Commerce was only referring to
those respondent interested parties from which it received no substantive responses. Throughout its Issues and
Decision Memo, Commerce summarized and responded to arguments and evidence presented by Siderca in its
substantive response, indicating that it did not, in fact, treat Siderca as having waived its participation in the
review. See id.; see also 19 C.F.R. § 351.218(d)(2)(i) (stating that if a respondent interested party waives its
right to participate, Commerce “will not accept or consider any unsolicited submissions from that party during
the course of the review”). (Exhibit ARG-3).
217 19 C.F.R. § 351.308(f) (Exhibit US-3).
218 In this regard, in US - Japan Sunset , para. 8.1(e)(ii), the panel found that the analysis of likely
dumping on an “order-wide” basis was not inconsistent with Article 11.3.
219 Argentina's first submission, paras. 158-159.

Agreement. Commerce did conduct a “review” of the order on OCTG from Argentina within the
meaning of Article 11.3 of the AD Agreement.

216. In the sunset review of OCTG from Argent ina, Commerce received complete substantive
responses from several domestic interested parties and from Siderca, the sole respondent interested
party to submit a substantive response. 220 No Argentine producer or exporter of OCTG, other than
Siderca, submitted information or participated in any fashion in the sunset review, nor did any
respondent interested party supply information for submission in Siderca’s substantive response. 221
Based on these facts, Commerce determined that the non-responding respondent interested parties had
waived their rights to participate and, thus, Commerce expedited the sunset review.222

217. In an expedited sunset review, section 351.308(f) of the Sunset Regulations provides for the
use of facts available for the final sunset determination. As “facts available,” section 315.308(f) also
provides that Commerce normally will examine the findings of dumping from the original
investigation and any subsequent administrative reviews, and the information supplied by the
interested parties in their substa ntive responses. Commerce made its final likelihood determination
using this information.

218. Commerce considered both the fact that dumpin g was found in the original investigation and
the information supplied by the interested parties, including the information supplied by Siderca in its
substantive response. Commerce determined that dumping continued to exist throughout the history
of the order, that US imports of OCTG from Arge ntina had decreased significantly after imposition of
the order, and that imports had remained at this depressed level since the imposition of the anti-
dumping order.
223 Commerce also addressed the only commen t made by Siderca in its substantive
submission, which concerned the de minimis standard to be applied in a sunset review. 224
Consequently, Commerce determined that dumping was likely to continue or recur if the order were
to expire based on the information submitted by th e interested parties in the sunset review and the
results in the prior proceeding.225

219. Similarly, as explained above, Argentina ha s failed to establish that Commerce’s conduct of
an expedited sunset review “precluded” Commerce from being able to “determine” whether dumping
was likely to continue or recur. To the extent Argentina is suggesting that section 351.308(f) limits
Commerce’s ability to make the likelihood determination, section 351.308(f) merely provides that
Commerce normally will use the facts available criteria in making the likelihood determination, but
nothing in the Sunset Regulations or elsewhere in US law precludes Commerce from considering
other information, even where facts available are used. 226 Indeed, for example, Commerce used
import statistics generated by Comm erce’s Census Bureau to verify the import levels of OCTG from

220 Final Sunset Determination, 65 Fed. Reg. at 66701 (Exhibit ARG-46).
221 See generally, Siderca’s Substantive Response (Exhibit ARG- 57).
222 See Adequacy Memorandum, at 2 (Exhibit ARG-50).
223 Section 351.308(f) also provides that Commerce normally will consider dumping found in any
administrative reviews as “facts available” when making the likelihood determination in a sunset review.
Exhibit US-3. In the case of OCTG from Argentina, there were no administ rative reviews of the order for the
five-year period preceding the sunset review. See Decision Memorandum, at 5 (Exhibit ARG-51).
224 Decision Memorandum, at 5 (Exhibit ARG-51). In its substantive submission, Siderca, citing to
Article 5.8 of the AD Agreement, suggested that the de minimis standard of 2 per cent applicable to
investigations should be applied in sunset reviews. Exhibit ARG-57, at 2. In the Final Sunset Determination,
Commerce explained that the de minimis standard for sunset reviews is 0.5 per cent and that the record evidence
demonstrated that the likely margin was 1.36 per cent, above de minimis for a sunset review. Decision
Memorandum, at 5 (Exhibit ARG-51).
225 Decision Memorandum, at 5 (Exhibit ARG-51).
226 Section 351.308(f) (Exhibit US-3).

Argentina for the five-year period preceding the sunset review.
227 There was no other information in
this case, nor did any interested party supply ad ditional information for Commerce to consider in
making the likelihood determination. Therefore, the mere fact that Commerce conducted an
expedited sunset review of OCTG from Argentina doe s not result in a violation of Article 11.3 of the
AD Agreement.

3. Commerce complied with the evidentiary and procedural requirements of Article 11.3
and Article 6 in the OCTG Sunset Review
220. Article 11.4 of the AD Agreement establishes that for sunset reviews, the “provisions of
Article 6 regarding evidence and procedure shall apply ... .” Re lying on this cross-reference,
Argentina claims that Commerce’s determination to expedite was inconsistent with Articles 6.1, 6.2,
and 6.8, and Annex II of the AD Agreement. 228 None of these articles, however, includes provisions
that make Commerce’s determination to expedite in consistent with US WTO obligations. In fact,
Commerce fully complied with its Article 11.4 obligation in its determination to expedite.

221. Specifically, Commerce provided Siderca with the notice and opportunity to present evidence,
argument, and rebuttal required by Articles 6.1 a nd 6.2. In addition, Commerce did not apply “facts
available” with respect to Siderca’s participation when it expedited the sunset review. Consequently,
insofar as its treatment of Siderca in the sunset review proceeding is concerned, Commerce did not act
inconsistently with Article 6.8 or Annex II.

(a) Commerce Afforded Siderca the Notice and Opportunity Required by Article 6.1
222. Article 6.1 requires that interested parties “shall be given notice of the information which the
authorities require and ample opportunity to presen t in writing all evidence which they consider
relevant in respect of the investigation in questio n.” Article 6.1 thus establishes a general rule
regarding the notice and opportunity to participate that interested parties should enjoy. Through
Commerce’s notice of initiation of the sunset revi ew and Commerce’s Sunset Regulations, Siderca
was on notice regarding what information was required and what information Commerce considered
relevant to its determination to conduct an expedited review. More over, Siderca had opportunities to
present relevant evidence on this issue, and any other relevant issue, and Siderca availed itself of at
least one of these opportunities. Accordingly, Commerce complied with Article 6.1 of the AD
Agreement.

223. On 3 July 2000, Commerce initiated the sunset review and published a notice of initiation in
the Federal Register .
229 The notice of initiation identified the relevant statutory and regulatory
provisions at issue, as well as the Sunset Policy Bulletin. Moreover, the notice of initiation specified
the information initially required from interested partie s in their notices of intent to participate, as
described at section 351.218(d) of Commerce’s Sunset Regulations. The notice of intent to
participate provision requires, inter alia, that respondent interested partie s, provide “[f]or each of the
five calendar years (or fiscal years, if more appropriate) preceding the year of publication of the notice
of initiation, on a volume basis (or value basis, if more appropriate), that party’s percentage of the
total exports of subject merchandise . . . to the United States.”230

224. The Sunset Regulations make clear that the respondent intere sted parties’ percentage of total
exports is an important factor in determining whether Commerce conducts a full or expedited sunset

227 Decision Memorandum , at 4-5 (Exhibit ARG-51). In making the determination to expedite the
sunset review, Commerce used the USITC’s Trade Database. Adequacy Memorandum, at 2 (Exhibit ARG-50).
228 Argentina's first submission, paras. 166-171.
229 65 Fed. Reg. 41053 (Exhibit ARG-44).
230 19 C.F.R. § 351.218(d)(2)(iii)(D) (Exhibit ARG-3).

review. In particular, the regulations state that Commerce “normally will conclude that respondent
interested parties have provided adequate response to a notice of initiation where it receives complete
substantive responses . . . from respondent intere sted parties accounting on average for more than
50 per cent, on a volume basis (or value basis, if appropriate), of the to tal exports of subject
merchandise to the United States over the five calendar years preceding the year of publication of the
notice of initiation.”231

225. On notice and apprised of the information th at Commerce required for the sunset review,
Siderca took the opportunity to present in wr iting the evidence and argument that Siderca
(presumably) considered relevant regarding the sunset review, including information on its percentage
of total exports. On 2 August 2000, Siderca filed a complete and timely substantive response to the
notice of initiation.
232 In that response, Siderca asserted that it was the only Argentine producer of oil
country tubular goods, and noted that since it did not export subject merchandise to the United States
over the preceding five years, it had no share of the total exports to the United States.233

226. Siderca’s statement that it had a zero share of total US exports was supported by relevant
trade data.234 However, record evidence indicated that there were imports of OCTG from Argentina
during the five-year period preceding the sunset re view. According to the ITC Trade Database, there
were imports of the subject merchandise from Argentina in four of the five years preceding the
publication of the notice of initiation. 235 Based on this data and th e other evidence before it,
Commerce determined that Siderca’s percentage of total exports to the United States was significantly
below 50 per cent236 and that it was appropriate to conduct an expedited sunset review.237

227. In addition to explaining its share of total exports to the United States, the substantive
response Siderca submitted in the sunset review pr oceeding addressed only two substantive issues:
the likelihood determination generally and the de minimis standard it believed should be applied in a
sunset review. 238 Commerce considered Siderca’s comments on these issues and took those
comments into account when it issued the final sunset determination on OCTG from Argentina.239

228. Although Siderca chose not to make any other submissions during the course of the sunset
review beyond its 2 August 2000 substantive response, it is undisputed that Siderca had opportunities
to do so. During an expedited sunset review, th ere are several opportunities for participating parties
to make written submissions. In addition to the substantive resp onse to the notice of initiation,
participating parties may also file comments on Co mmerce’s initial determination of the adequacy of

231 19 C.F.R. § 351.218(e)(1)(ii)(A) (Exhibit ARG-3).
232 See Siderca Substantive Response (Exhibit ARG-57).
233 Siderca Substantive Response, at 3-4 (Exhibit ARG-57).
234 See Adequacy Memorandum, at 2 (Exhibit ARG-50).
235 See Adequacy Memorandum, at 2 (Exhibit ARG-50); and US Steel Group, Substantive Response, at
12 (2 August 2000); North Star Steel Ohio, Substantive Response, at 3, Attachment 1 (2 August 2000) (Exhibit
US-23).
236 It should be noted that Commerce’s examination of the respondent interested parties’ percentage of
total exports is consistent with the order-wide basis upon which Commerce conducts sunset reviews. Namely,
Commerce makes a likelihood determination with respect to all producers/exporters of a particular product from
a particular country, not just those that file substantive responses to the notice of initiation. US – Japan Sunset,
paras. 7.207-208, rejected a claim that Commerce’s order-wide approach was inconsistent with the AD
Agreement.
237 See Adequacy Memorandum, at 2 (Exhibit ARG-50).
238 Siderca Substantive Submission, at 2-3 (Exhibit ARG-57).
239 See Decision Memorandum, at 5 (Exhibit ARG-51).

the response
240 and may submit a rebuttal to any other party’s substantive response to the notice of
initiation.241

229. The fact that Siderca did not take advant age of these other opportunities, as well as
Commerce’s consideration of Siderca’s substantive response in the sunset review, belie any notion
that Siderca was prejudiced by the determination to expedite the sunset proceeding. In short, Siderca
had notice of the information Commerce considered relevant to the determination to expedite, and
Siderca had the opportunity on several occasions to present to Commerce whatever other information
and argument Siderca considered relevant. The text of Article 6.1 requires nothing more.

(b) Siderca Was Afforded An Opportunity For A Fu ll Defense of Its Interests in Accordance
With Article 6.2
230. Article 6.2 of the AD Agreement provides fo r the rights of interested parties to “a full
opportunity for the defence of their interests,” and states in relevant part:

Throughout the anti-dumping investigation all interested parties shall have a full
opportunity for the defence of their interests. To this end, the authorities shall, on
request, provide opportunities for all intere sted parties to meet those parties with
adverse interest, so that opposing view s may be present and rebuttal arguments
offered.
231. Argentina claims that Siderca was denied th e opportunity to fully defend its interests in
accordance with Article 6.2, because Commerce alle gedly applied the waiver provisions to Siderca
and deemed Siderca to have waived its righ ts to participate in the sunset review.
242 Again, as
demonstrated above in connection with Argentina’s “as such” claim, there is simply nothing in US
law, regulation, or procedure governing sunset reviews that precludes or impedes this opportunity. To
the contrary, interested parties are given ampl e opportunity to submit written information and
argument, rebut information and argument submitt ed by other parties, and to comment on the
appropriateness of conducting an expedited review.

232. Argentina makes no showing that in the OC TG sunset review, Commerce failed to act in
accordance with US law and regulation. Instead, the record is clear that in the OCTG sunset review,
Siderca chose to limit its participation to a 4-page, double-spaced presentation.243

233. Section 351.218(e)(1)(ii)(C) and section 35 1.308(f) of Commerce’s Sunset Regulations
provide for the use of facts available only in s ituations where interested parties fail to provide
information requested for Commerce’s sunset review determination. Specifically, these provisions
permit expedited sunset reviews on the basis of fact s available only in situations where interested
parties’ response to Commerce’s notice of initiation is inadequate.
244 An inadequate response is one
that lacks required information or is simply not submitted.245 Thus, only in situations where interested
parties fail to provide necessary information, do these provisions permit an expedited review
determination on the basis of facts available.

240 19 C.F.R. § 351.309(e) (Exhibit US-3).
241 19 C.F.R. § 351.218(d)(4) (Exhibit ARG-3).
243 See Exhibit ARG-57.
244 19 USC. § 1675(c)(3)(B) (Exhibit ARG-1).
245 19 C.F.R. § 351.218(e)(1)(ii) (“[T]he Secretary norm ally will conclude that respondent interested
parties have provided adequate response to a notice of initiation where it receives complete substantive
responses ... .”) (Exhibit ARG-3); see also 19 C.F.R. § 351.218(e)(i)(I)(“[T]he Secretary normally will conclude
that domestic interested parties have provided adequate response . . . where it receives a complete substantive
response ... .”) (Exhibit ARG-3).

Argentina attempts to confuse the issue by referring to Commerce’s adequacy test (the so-called
“50 per cent threshold” test) provided in s ection 351.218(e)(1)(ii)(A) of Commerce’s Sunset
Regulations.246 Section 351.218(e)(1)(ii)(A) provides that an adequate response from respondent
interested parties exists if Commerce receives substantive responses from “respondent interested
parties accounting on average for more than 50 per cent, on a volume basis (or value basis, if
appropriate), of the total exports of subject merchandise to the United States over the five calendar
years preceding the year of publication of the notice of initiation.” 247 Argentina argues that
section 351.218(e)(1)(ii)(A) has the effect of requiring an expedited sunset review and, in turn, the use
of facts available in this case where Siderca did not fail to submit necessary information in violation
of Article 6.8.248

235. Argentina misinterprets section 351.218(e)(1)( ii)(A) of Commerce’s Sunset Regulations. The
section is not a provision requiring the use of facts available. Rather, it serv es a ministerial function
of allowing Commerce to decide when the conduct of an expedited review is appropriate when the
number of respondent interested parties who provide a substantive response to the notice of initiation
is inadequate.
249 An “adequate” number of responses is normally required, because Commerce makes
its likelihood determinati on on an order-wide basis. 250 As such, Commerce must decide on an
aggregate basis whether the response from respondent interested parties, as a group, is adequate to
warrant a full sunset review. A determination that the aggregate response from respondent interested
parties is inadequate and, thus, th at a expedited review is warranted, is not a determination that an
individual respondent interested party, who supplied a complete substantive response, would be likely
to resume or continue dumping if the order were revoked.

236. In fact, Commerce regulations provide that, wh en resorting to facts available in an expedited
sunset review, Commerce should “normally” rely on dumping margins from prior determinations and
“information contained in parties’ substantive re sponses to the Notice of Initiation filed under §
351.218(d)(3).”
251 Section 351.218(d)(3) of Commerce’s Sunset Regulations provide for the
submission of information from both domestic and re spondent interested parties. In other words, in
using facts available in an expedited sunset review, Commerce does not disregard information
submitted by respondent interested parties who may have responded to the notice of initiation, but
who did not in the aggregate account for 50 per cent or more of subject exports. To the contrary,
Commerce considers this information as part of the facts available in making its likelihood
determination. This approach is in accordance with the obligations contained in Article 6.8 of the AD
Agreement.

237. In the sunset review of OCTG from Argentina, as discussed above, Siderca filed a complete
substantive response to the notice of initiation. In its substantive response, Siderca only raised two
issues. As previously noted, Siderca’s entire subs tantive response was a mere four pages of double-
spaced text.
252 Siderca did not file any additional informa tion on its own behalf or on behalf of the
Argentine exporters of OCTG, as allowed by s ection 351.218(d)(3)(iv) of Commerce’s Sunset
Regulations. In addition, Siderca did not file any comments on Commerce’s decision to expedite the

247 19 C.F.R. § 351.218(e)(2)(ii) (Exhibit ARG-3).
249 The sunset statute provides that when interested parties’ response to the notice of initiation is
inadequate, Commerce may conduct an expedited sunset review. The statute does not specify what to do in the
event that some, but not all, interested party responses to initiation are inadequate. Thus, Commerce, in its role
as the administering authority, determined that for respondent interested parties a response from such parties
accounting for 50 per cent or more of subject imports would be deemed an adequate response. See 19 USC. §
1675(c)(3)(B) (Exhibit ARG-1); 19 C.F.R. § 351.218(e)(1)(ii)(A) (Exhibit ARG-3).
250 See Sunset Policy Bulletin, 63 Fed. Reg. at 18872 (Exhibit ARG-35).
251 19 C.F.R. § 351.308(f)(2) (Exhibit US-3).
252 See Exhibit ARG-57.

sunset review, as allowed by section 351.309(e) of Commerce’s Sunset Regulations. In sum,
Argentina’s claims that Siderca did not have an ad equate opportunity to defend its interests because
the sunset review was expedited in this case ring ho llow, because Siderca did not avail itself of the
opportunities made available by the Sunset Regulations for such defence in an expedited sunset
review.

3. Commerce’s Final Sunset Determination in OC TG from Argentina is not inconsistent
with the obligation contained in Article 12 of the AD Agreement
238. Argentina claims that Commerce’s Final Sunset Determination and the accompanying
Decision Memorandum in OCTG from Argentina are inconsis tent with provisions of Article 12
because these documents allegedly fail to provide public notice and an adequate explanation of the
decisions made in the sunset review.
253 Specifically, Argentina claims that the Final Sunset
Determination and the Decision Memorandum are inconsistent with Article 12.2 because they fail to
adequately explain the bases for Co mmerce’s likelihood determination. 254 In addition, Argentina
claims that these documents are inconsistent with Article 12.2.2 because they do not contain all
relevant factual informa tion necessary to make th e likelihood determination.
255 As discussed below,
Argentina mischaracterizes Commerce’s factual and le gal conclusions. In addition, with regard to
Argentina’s claim under Article 12.2.2, Argentina is attempting to use that provision as a vehicle for
creating substantive standards for sunset reviews that simply cannot be found in the text of
Article 11.3.

239. Article 12 establishes the “investigating authorities’ obligations relating to public notice and
explanation of determinations throughout an investigation.”
256 Through Article 12.3, the provisions
of Article 12 apply “ mutatis mutandis to the initiation and completion of reviews pursuant to
Article 11 ... .”

240. Argentina’s first claim under Article 12 is th at because Argentina is unable to discern from
the Final Sunset Determination and the accompanying Decision Memorandum “the actual basis for
the Department’s affirmative likelihood determ ination,” Commerce acted inconsistently with
Article 12.2.257 Article 12.2 requires public notice of any determinations made in a sunset review and
mandates that “[e]ach such notice shall set forth, or otherwise make available through a separate
report, in sufficient detail the findings and conc lusions reached on all issues of fact and law
considered material by the investigating authorities.”

241. However, as discussed in detail above, Commerce did provide notice and detailed
explanations of its determinations in the Final Sunset Determination, the Decision Memorandum, and
the Adequacy Memorandum, all of which were publicly available. Nonetheless, Argentina claims that
it cannot discern the precise US statutory provision – section 751(c)(4) or section 751(c)(3)(B) – upon
which Commerce’s final affirmative sunset determina tion was based. In addition, Argentina alleges
that these US statutory provisions are somehow “mutually exclusive” and, thus, cannot both serve as a
basis for the Final Sunset Determination in OCTG from Argentina.

242. Here, Argentina simply continues to misstate the facts of the OCTG sunset review and the
meaning of US law. First, the cited statutory provisions are not mutually exclusive in their
application as alleged by Argentina. On the contrary, as explained above, they work in conjunction in
cases where a respondent interested party ch oose to waive participation in the Commerce-

256 US – Japan Sunset, para. 7.30.

administered portion of the sunset review proceeding. Section 751(c)(4) provides for a respondent
interested party to elect waiver of participation, while section 751(c)(3)(B) provides for the use of
facts available where the aggregate response from respondent interested parties is inadequate. A
determination that the aggregate response to the notic e of initiation is inadequate can be based on the
respondent interested parties electing waiver, or failing to respond, or in providing inadequate
substantive responses, or on any combination of these scenarios.258

243. Second, as a matter of fact and of law, Siderca did not waive its right to participate in the
sunset review nor did Commerce find that Siderca had done so. Argentina repeatedly attempts to
confuse the issue by alternatively referring to Siderca and Argentina as the respondent interested party
when addressing the waiver issue. The Final Sunset Determination, the Decision Memorandum, and
the Adequacy Memorandum , however, each clearly state that Siderca filed a complete substantive
response.259 Commerce’s Adequacy Memorandum and the Decision Memorandum also make clear
that Commerce’s decision to expedite the review was based on the failure of Argentine
producers/exporters of OCTG, other than Siderca, to respond to the notice of initiation. 260
Consequently, Commerce determined to expedite th e sunset review and to use facts available in
making the final sunset determination because the Article 11.3 likelihood determination is made on an
order-wide basis and Siderca represented zero exports to the United States of OCTG during the five-
year period preceding the sunset review.

244. Finally, as the Final Sunset Determination and the Decision Memorandum clearly explain,
Commerce used, as fact available in accordance with section 351.308(f) of Commerce’s Sunset
Regulations, margins from the original investigat ion and the information submitted in the sunset
review, including the information submitted by Side rca, as the bases for the affirmative likelihood
determination.261 The Decision Memorandum explains that Commerce found dumping throughout the
history of the OCTG order and that the existence of dumping margins after imposition of the duty is
highly probative of the likelihood of dumping in the absence of the duty. 262 In addition, Commerce
found that import volumes had decreased and re mained depressed since the order was issued,
indicating that the Argentine producers/exporters of OCTG may have had to dump to maintain market
share.263

245. In light of these facts and in the absence of any rebuttal evidence fr om respondent interested
parties – including Siderca – Commerce made an affirmative likelihood determination because it
determined that the Argentine producers/exporters c ould not sell OCTG in the United States without
dumping if the order were to be revoked. Alth ough Argentina may disagree with the outcome, the
Final Sunset Determination and the accompanying Decision Memorandum clearly explain the bases
for Commerce’s final affirmative likelihood determination and nothing in Article 12.2 requires more.
Consequently, Commerce’s Final Sunset Determination and the accompanying Decision
Memorandum fulfil the obligations to provide public notice under Article 12.2.

246. In addition to its public notice claim under Article 12.2, Argentina claims that Article 12.2.2
requires that “fresh information” be gathered and that a dumping margin be calculated in accordance

258 Argentina’s own study of Commerce sunset reviews shows that these scenarios can exist in
combination. For example, on page 1 of Exhibit ARG-63, the data for Case 7 (bearings from France) shows that
there were affirmative waivers of participation from some respondent interested parties, combined with no
responses from others.
259 Final Sunset Determination, 65 Fed. Reg. at 66701 (Exhibit ARG-46); Decision Memorandum, at 3
(Exhibit ARG-51); and Adequacy Memorandum, at 1 (Exhibit ARG-50).
260 Decision Memorandum, at 3 (Exhibit ARG-51); and Adequacy Memorandum, at 2 (Exhibit ARG-
50).
261 Decision Memorandum, at 4-5 (Exhibit ARG-51).
262 Decision Memorandum, at 5 (Exhibit ARG-51).
263 Decision Memorandum, at 5 (Exhibit ARG-51).

with Article 2.1 of the AD Ag reement in a sunset review.
264 Argentina is wrong, because Article
12.2.2 does not impose any such substantive obligations.

247. Article 12.2.2 is a notice and report provision that requires an authority to provide
explanations regarding matters of fact and law, the reasons or bases for any determinations, as well as
the reasons for the acceptance and rejection of argume nts and claims made in the proceeding. Article
12.2.2 does not contain substantive obligations for the conduct of, or for the methodologies to be
used, in a sunset review. Nothing in Article 12 ge nerally or Article 12.2.2 specifically contains any
substantive provisions regarding the methodologie s or analysis to be employed in making the
determination of whether dumping and injury is likely to continue or recur.

248. In the past, attempts to read substantive obligat ions into Article 11.3 on the basis of unrelated
requirements in Article 12 have been rejected.
265 The Panel should similarly reject Argentina’s
attempt to do so here.

D. COMMERCE’S ANALYSIS OF DUMPING IN THE CONTEXT OF THE LIKELIHOOD AND “MARGIN
LIKELY TO PREVAIL” DETERMINATIONS IN THE SUNSET REVIEW ON OCTG FROM ARGENTINA
WERE NOT INCONSISTENT WITH ARTICLE 11.3 OF THE AD AGREEMENT
249. Argentina claims that in the sunset review on OCTG from Argentina, Commerce was
obligated, under Articles 2, 6, and 11.3 of the AD Agreement, to calculate and base its likelihood
determination on a current and future amount of dumping. 266 As demonstrated below, Argentina is
wrong.

1. Article 11.3 does not require a quantification of dumping or the use of any particular
methodology for making the likelihood determination
250. Customary rules of interpretation of public international law dictate that the words of a treaty
form the starting point for the process of interpreta tion. The text of Article 11.3 provides that a
definitive anti-dumping duty must be terminated afte r five years unless the authorities determine that
“the expiry of the duty would be likely to lead to continuation or recurrence of dumping and injury.”
The focus of a sunset review under Article 11.3 is on future behaviour; i.e., whether dumping and
injury are likely to continue or recur in the event of expiry of the duty, not whether or to what extent
dumping or injury currently exists. Thus, neither the precise amount of dumping in any one year, nor
the precise amount of likely future dumping, is of central significance to the results of the review;
indeed, such precision is certainly not required.
267

251. Under Article 11.3, authorities are required to determine whether continuation or recurrence
of dumping is likely. Article 11.3 does not, however, set forth a methodology to be used in
performing this likelihood analysis. Nor does Article 11.3 require quantification of past or future
amounts of dumping. This is reinforced by note 22 of Article 11.3, which pr ovides that “[w]hen the

265 US - German Steel , para. 112 (finding that Article 22.1, the provision in the SCM Agreement
corresponding to Article 12.1 of the AD Agreement, does not establish evidentiary standards applicable to the
initiation of sunset reviews); and US - Japan Sunset , para. 7.33 (Article 12.1 does not establish evidentiary
standards applicable to the initiation of sunset reviews).
266 Argentina's first submission, paras. 181-196.
267 See, e.g., United States - Anti-Dumping Duty on Dynamic Random Access Semiconductors
(DRAMS) of One Megabit or Above from Korea , WT/DS99/R, Report of the Panel adopted 19 March 1999,
para. 6.43 [hereinafter Korea – DRAMS ] (discussing prospective analysis, albeit in the context of a different
type of review). Although there is no requirement to quantify the amount of dumping likely to continue or
recur, as discussed below, the United States does so under its domestic law. Commerce transmits this
information to the ITC.

amount of the anti-dumping duty is determined on a retrospective basis, a finding in the most recent
assessment proceeding ... that no duty is to be levied shall not by itself require the authorities to
terminate the definitive duty.” No specific amount of du mping – even the most current – is decisive
as to whether dumping is likely to continue or recur.

252. Argentina claims that the rules of Article 2 apply in their entirety to sunset reviews conducted
under Article 11.3 because Article 11.3 requires a determination whether "dumping" is likely. 268
While correct that the term "dumping" appear s in both Article 2 and Article 11.3, Argentina
incorrectly ascribes all of the obligations contained in Article 2 to sunset reviews under Article 11.3.

253. As its heading indicates, Article 2 sets fo rth obligations concerning the “Determination of
Dumping.” Within Article 2, Article 2.1 provides the general definition that a product is considered
to be “dumped” where the export price of that product is less than the comparable price in the
comparison market. The remaining provisions of Ar ticle 2 set forth, in significant detail, how the
margin of dumping, i.e. the amount of dumping, is to be calculated.

254. Article 11.3 requires that an authority determ ine whether “expiry of the duty would be likely
to lead to continuation or recurrence of dumping ... .” In other words, Article 11.3 requires a
determination whether dumping is likely to recur – dumping, as defined by Article 2.1, meaning
generally that the export price of a product is less than the normal value of that product. Article 11.3
does not require a determination that a particular amount of dumping is likely to continue or recur in
the future, i.e., if and when the duty is terminated – for the very reason that it would be impossible to
make such a determination.

255. A determination of dumping consiste nt with the Article 2 rules requires, inter alia, that actual
amounts of prices, costs, and profit be used in the proscribed calculation methodology. In a sunset
review, an authority is considering what will happen in the future. It is self-evident that there are no
values for prices, costs, and profits that have not yet occurred. Argentina’s claim, that the
requirements of Article 2 literally apply in a sunset review under Article 11.3, fails for this very
reason.

256. This is not to say that Article 2 has no implications or application in Article 11.3 sunset
reviews. As previously noted, Article 2.1 provid es that, for the purposes of the AD Agreement, a
product is considered to be “dumped” where the export price of that product is less than the
comparable price in the comparison market. Article 2, therefore, provides the general meaning of the
term “dumping” as it is used throughout the AD Agre ement, including in Article 11.3. The panel in
US – Japan Sunset reached this same conclusion.
269

257. In the instant review, Commerce considered evidence that dumping continued over the life of
the order and that import volumes declined significantly after the imposition of that order. As a result,
Commerce found that dumping was likely to contin ue or recur in the futu re if the order were
terminated. Nothing more is required under Article 11.3.

268 Argentina's first submission, paras. 182, 183.
269 US – Japan Sunset , para. 7.168 (“We thus do not believe that the substantive disciplines in
Article 2 governing the calculation of dumping margins in making a determination of dumping apply in making
a determination of likelihood of continuation or recurrence of dumping under Article 11.3.”). In so stating, the
panel was drawing the distinction between the obligation to calculate a margin of dumping in accordance with
the methodologies proscribed by Article 2 – i.e. to determine the magnitude
 of the margin of dumping – and the
obligation in a sunset review under Article 11.3 to make a determination of the likelihood that “dumping” – i.e.,
the mere existence of dumping – would be likely to continue or recur if the duty were to expire.

2. The margins determined in Commerce’s orig inal investigation, and the methodologies
used to derive them, cannot be challenged before this Panel
258. Argentina maintains that the margin calculations in the investigation, which were considered
by Commerce in making its sunset determinations, were performed in a manner that was inconsistent
with WTO requirements, particularly the requirements of Article 2. Those specific margins and the
methodologies used to derive them, however, cannot now be challenged before this Panel.

259. Article 18.3 of the AD Agreement provides that “the provisions of this Agreement shall apply
to investigations, and reviews of existing measures, initiated pursuant to applications which have been
made on or after the date of entry into force for a Member of the WTO Agreement.” The AD
Agreement thus applies only to investigations that were based on US dumping petitions filed after
1 January 1995, the date of entry into force of the WTO Agreement with respect to the United States.
The anti-dumping investigation in this case was initiated on the basis of a petition filed prior to
1 January 1995. Thus, the specific margins calculat ed by Commerce in the original investigation, and
the calculation methodologies used to derive them, cannot be challenged before this Panel.

260. An analogous situation was presented in Korea DRAMs . In that case, the United States
maintained that a WTO dispute arising out of the fina l results of the third administrative review of the
order did not provide an appropriate forum in whic h to challenge a product scope determination made
during the original investigation. The United States pointed out that (1) the product scope
determination had been made in an investigation pr ior to the creation of the WTO and the entry into
force of the AD Agreement, and (2) product scope issues were not revisited during the third
administrative review. The United States asserted, therefore, that claims regarding product scope
were inadmissible under Article 18.3 of the AD Agreement. Th e panel agreed with the United States,
finding that the AD Agreement applies only to those parts of a pre-WTO measure that “are included
in the scope of a post-WTO review.”
270 In the instant case, the specific amounts of the original
dumping margins were not revisited in the sunset review. Consequently, those margins, and the
methodologies used to derive them, cannot be challenged before this Panel.

3. Commerce fully complied with its obligations under the AD Agreement in making the
affirmative likelihood determination
261. Argentina claims that Commerce’s likelihood determination was not based on “positive
evidence” and that, as a result, Commerce’s sunset review proceeding on OCTG from Argentina
violated Article 6 obligations regarding evidence and procedure.
271 As discussed above, Argentina’s
Article 6 claims relating to Siderc a’s participation in the sunset re view are based on an incorrect
factual premise, because Commerce found that Siderca had filed a complete substantive response and
did not find that Siderca had waived its rights to participate in the sunset review. In addition,
Commerce afforded Siderca and the other Argentine producers/exporters opportunities to supply
whatever comment, argument, or information they wished in defence of their interests in the sunset
review of OCTG from Argentina in accordance with sections 351.218(d)(3)(ii)(G) and
351.218(d)(3)(iv)(B) of Commerce’s Sunset Regulations.272

262. Indeed, Commerce’s sunset qu estionnaire explicitly requests th at interested parties, which
would include Siderca and the Argentine OCTG exporters, provide “[a] statement regarding the likely

270 Korea DRAMs, para. 6.14.
272 19 C.F.R. § 351.218(d)(3)(ii)(G) (interested party is required to provide, in its substantive response,
factual information, argument, and reason concerning the dumping margin likely to prevail for that party if the
order is revoked); 19 C.F.R. § 351.218(d)(3)(iv)(B) (provides for submission of “any other relevant information
that the party would like [Commerce] to consider.”) (Exhibit ARG-3).

effects of revocation of the order . . . , which must include any factual information, argument, and
reason to support such statement.” 273 Commerce requested information from Siderca and the
Argentine exporters and the fact that Siderca failed to answer the questions in a more thorough
manner is not an error that can be ascribed to Commerce.

263. As detailed above, Commerce considered the margins from the original investigation and the
information submitted by the interested parties in the sunset review proceeding. Commerce
reasonably found that the existence of dumping margins and depressed import volumes since the
imposition of the duty indicated that it was likely that dumping of OCTG from Argentina would
continue or recur if the order were revoked. 274 There is no indication that the quality of the evidence
considered for the final sunset determination was compromised in any way. Thus, Commerce’s
examination of whether revocation of the order would be likely to lead to the continuation or
recurrence of dumping was based on credible and undisputed evidence, and the sunset review
proceeding in OCTG from Argentina complied with the obligation contained in Article 6.

264. Argentina makes a series of unsupported and unsubstantiated clai ms that Commerce’s
affirmative likelihood determination in the OCTG sunset review violated Articles 2 , 6 and 11.3 of the
AD agreement.
275 First, Argentina claims that Commerce cannot rely on “5 year old data from an
original investigation” because a likelihood determ ination under Article 11.3 requires “fresh” data
indicating the likelihood of future dumping. 276 Argentina does not explain what “fresh” data need be
collected or how this information may be indicative of future dumping. Indeed, nothing in
Article 11.3 dictates the information that an author ity must gather, or the methodologies that it must
employ, to determine the likelihood of continuation or recurrence of dumping.

265. Argentina also overlooks the fact that Co mmerce based its likelihood determination on
evidence concerning import volumes over the life of the order and the information supplied by the
interested parties, in addition to the dumping margin s found in the original investigation. Moreover,
“current information” is not the issue in a sunset review conducted pursuant to Article 11.3.
277 Rather,
the issue under Article 11.3 is whether dumping and in jury are likely to continue or recur in the event
of the expiry of the duty, an inherently forward-looking inquiry.

266. Argentina also claims that the evidence supporting an affirmative likelihood determination
made under Article 11.3 must indicate that dumping in the future is “probable,” not just “possible.”278
In this regard, Argentina appears to claim that Commerce’s likelihood determination is not supported
by evidence demonstrating that there is a probabilit y that dumping will continue or recur if the order
were revoked. In its written submission to this Panel, Argentina does not explain how Commerce’s
likelihood determination fails to meet this “standard.”
279 Nevertheless, as explained above,
Commerce found that the existence of dumping marg ins over the life of the order and the depressed
import volumes since the imposition of the duty were highly probative of the future behaviour of
Argentine exporters of OCTG. 280 Nothing submitted by the interested parties nor any other
information on the record of the sunset review of OCTG from Argentina contradicts these findings.

273 19 C.F.R. § 351.218(d)(3)(ii)(F) (Exhibit ARG-3).
274 Decision Memorandum, at 4-5 (Exhibit ARG-51).
275 Argentina's first submission, paras. 182-188.
277 See footnote 22, Article 11.3 of the AD Agreement, stating that “a finding in the most recent
assessment proceeding . . . that no duty is to be levied shall not by itself require the authorities to terminate the
definitive duty.”
279 See Argentina's first submission, paras. 182 and 187.
280 Decision Memorandum, at 5 (Exhibit ARG-51).

4. There is no obligation under Article 11.3 of th e AD Agreement to calculate or consider a
margin likely to prevail upon expiry of the duty
267. Under US law, Commerce is required to determine whether the expiry of the duty is likely to
lead to continuation or recurrence of dumping. If Commerce’s likelihood determination is
affirmative, it must report to the ITC the magnitude of the margin likely to prevail.
281 In making the
sunset injury determination, the ITC “may consider the magnitude of the margin of dumping.”282 The
fact that Commerce reports a margin to the ITC is a construct of US law, however, and not an
obligation imposed by the AD Agreement.

268. Argentina maintains that, pursuant to Article 2 and Article 11.3, as applied in the instant case,
the margins reported to the ITC as the rates of du mping likely to prevail in the event of revocation
were improperly identified by Commerce. 283 Argentina is wrong, because there simply is no
obligation under the AD Agreement to consider the magnitude of the margin likely to prevail in
determining likelihood of continuation or recurrence of injury in a sunset review under Article 11.3.
For this reason, the Panel should not and need not consider Argentina’s arguments concerning the
manner in which Commerce identified the margins that it reported to the ITC.

E. T
HE PANEL SHOULD REJECT ARGENTINA’S CLAIM UNDER ARTICLE X:3(A) OF GATT 1994
269. Having failed to demonstrate that US law and the application of that law are contrary to the
AD Agreement, in Section VII.E of its First Submissi on, Argentina attempts to recycle its claims one
last time by turning to Article X:3(a) of the GATT 1994. Argentina seems to allege that even if the
Panel finds that none of the “measures” identified by Argentina are inconsistent – either as such or as
applied – with any of the provisions of the AD Agre ement cited by Argentina, the Panel nonetheless
should find that these “measures” are inconsistent with the Article X:3(a) requirement that certain
laws, regulations, judicial decisions and administrative rulings of general application be administered
in a uniform, impartial, and reasonable manner.

270. At the outset, the United States reiterates that this claim is not within the Panel’s terms of
reference. In Section A.4 of Argentina’s panel requ est, the claim under Article X:3(a) is made with
respect to the specific Commerce sunset determin ation in OCTG from Argentina. Nevertheless,
Argentina fails to demonstrate that Commerce has not administered US sunset review laws and
regulations in a uniform, impartial and reasonable manner.

271. Focusing on the ordinary meaning of Article X:3(a)’s terms, “uniform” is defined as “[o]f one
unchanging form, character, or kind; that is or stays the same in different places or circumstances, or
at different times.”
284 Interpreting the same provision in a challenge to Argentina’s administration of
its customs laws, a panel explained that the term “uniform” means that the

laws should not vary, that every exporter and importer should be able to expect
treatment of the same kind, in the same ma nner both over time and in different places
and with respect to other persons. Unif orm administration requires that Members
ensure that their laws are applied consistently and predictably ... . This is a
requirement of uniform administration of .. . laws and procedures between individual

281 Section 752(c)(3) (Exhibit ARG-1).
282 Section 752(a)(6) (Exhibit ARG-1).
283 Argentina's first submission, paras. 189-193.
284 New Shorter Oxford English Dictionary 3488 (1993).

shippers and even with respect to the same person at different times and different
places.285
272. “Impartial” means “[n]ot partial; not favour ing one party or side more than another;
unprejudiced, unbiased; fair.” 286 Treatment in an unbiased and fair manner is distinguishable from
identical treatment. For example, the panel in US – Japan Sunset rejected Japan’s contention that
requiring foreign producers/exporters to provide more information than domestic produces in
Commerce’s sunset review resulted in the pa rtial administration of US sunset laws. 287 The panel
explained that because “foreign exporters will be the main source of information regarding dumping,
or likelihood of continuation or recurrence of du mping,” the quantity of information required from
foreign exporters will necessarily differ.288

273. “Reasonable” means “[i]n accordance with reason; not irrational or absurd.” 289 In
Argentina – Bovine Hides, the panel found the administration of Argentine customs law unreasonable
because there was “no reason” for allowing Argentinean hide buyers to see documents containing
their customers’ business confidential information.290

274. Taken together the terms of Article X:3(a) re quire, that in administer ing US sunset review
laws and regulations, Commerce must act in a manner th at is consistent, unbiased and not irrational or
absurd. As to the first of these requirements, one of Argentina’s principal claims is that the various
“measures” alleged by Argentina “establish an irrefutable presumption, as demonstrated by
[Commerce’s] consistent practice, that is inconsistent with Article 11.3.”
291 Needless to say, it strains
logic to understand how Argentina can sustain a clai m that Commerce has violated Article X:3(a)’s
demand for consistent application of sunset review laws and regulations when, at the same time,
Argentina complains about Commerce’s “consistent practice.”

275. With respect to the requirements for an impa rtial and reasonable administration of US sunset
laws and regulations, Argentina has provided no evid ence of bias or that Commerce has administered
US laws and regulations in an irrational or absu rd manner. As demonstrated above, Argentina’s
“irrefutable presumption” does not exist, and a de construction of Argentina’s “analysis” of 291
Commerce sunset reviews shows that in 87 per cent of the cases, the issue of likelihood of dumping
simply was not contested. In the 13 per cent of the cases where likelihood was contested, Argentina
provides no evidence – let alone proves – that those cases were decided in an impartial or
unreasonable manner.

285 Argentina – Measures Affecting the Export of Bovine Hides and the Import of Finished Leather ,
WT/DS155/R, Report of the Panel adopted 16 February 2001, para. 11.83 [hereinafter “ Argentina - Bovine
Hides”].
286 New Shorter Oxford English Dictionary 1318 (1993).
287 US – Japan Sunset, para. 7.306.
288 Id; see also Argentina – Bovine Hides Panel Report, paras 11.99-.101 (finding that in providing
private parties access to confidential business information of parties with conflicting commercial interests
constituted a partial administration of Argentine customs laws).
289 New Shorter Oxford English Dictionary 2496 (1993).
290 Argentina – Bovine Hides, paras. 11.87, 11.91-.92.

F. T
HE ITC APPLIED THE CORRECT STANDARD FOR DETERMINING WHETHER TERMINATION OF
THE ANTI -DUMPING DUTY ORDER WOULD BE LIKELY TO LEAD TO CONTINUATION OR
RECURRENCE OF INJURY , AND THE ITC’S DETERMINATION OF LIKELIHOOD IN THE SUNSET
REVIEW OF OCTG FROM ARGENTINA WAS CONSISTENT WITH ARTICLE 11. 3 AND
ARTICLE 3.1 OF THE AD AGREEMENT
276. Argentina argues that the ITC’s application of the standard for determining whether
revocation of the anti-dumping order would be likely to lead to continuation or recurrence of injury
was inconsistent with AD Agreem ent Article 11.3 because the IT C failed to apply the ordinary
meaning of the term “likely.” Arge ntina’s argument that the ITC misinterpreted the word “likely” in
Article 11.3 rests on two premises: first, that “lik ely” can only mean probable; and second, that the
ITC disregarded this meaning and interp reted “likely” to mean “possible.” 292 Neither of these
premises is correct. Argentina also asserts, inco rrectly, that the SAA directs the ITC to apply a
standard that is inconsistent with Article 11.3.

277. Before turning to the interpretation of the word “likely” itself, it is worth recalling the
fundamental nature of the inquiry called for by a sunset review. The determination of whether
revocation of an order "would be likely to lead to" continuation or recurrence of injury is an
inherently predictive inquiry. In this respect, as the Appellate Body has already recognized in the
context of countervailing duty proceedings, a suns et review is fundamentally different from an
original investigation:
293

We further observe that original investigations and sunset reviews are distinct
processes with different purposes. The nature of the determination to be made in a
sunset review differs in certain essential respects from the nature of the determination
to be made in an original investigation. For example, in a sunset review, the
authorities are called upon to focus their in quiry on what would happen if an existing
countervailing duty were to be removed. In contrast, in an original investigation, the
authorities must investigate the existence, de gree and effect of any alleged subsidy in
order to determine whether a subsidy exists and whether such subsidy is causing
injury to the domestic industry so as to warrant imposition of a countervailing duty.
278. The panel in US – Japan Sunset also explained:
294

[O]riginal investigations and sunset revi ews are distinct processes with different
purposes, and that the text of the Anti-Dumping Agreement distinguishes between
investigations and reviews. We base our view on several elements, not least that
under the text of the Anti-Dumping Agreement, the nature of the determination to be
made in a sunset review differs in certain fundamental respects from the nature of the
determination to be made in an original investigation.
279. Thus, a sunset review – whether of a countervailing duty or anti-dumping duty order –
necessarily involves less certainty and precision than would be attainable in an original investigation
based on a retrospective analysis. 295 For example, in an original anti-dumping investigation,
authorities examine the current condition of an indus try without the benefit of an order in place to

292 Argentina’s submission is confusing on this point. In some places it asserts that the ITC used a
standard based on injury being “possible.” Argentina's first submission, paras. 213, 214, 215, and 222.
Elsewhere, Argentina refers to the ITC’s application of a standard that “falls in between ‘probable’ and
‘possible’ on a continuum of relative certainty.” Argentina's first submission, paras. 211 and 221.
293 US – German Steel, para. 87.
294 US – Japan Sunset, para. 7.8.

determine whether dumped imports are causing, or th reatening to cause, material injury. In an
original investigation, the condition of the industry is determined, inter alia, on the basis of existing
evidence quantifying the domestic industry's sales, profits, output, operating income, market share,
productivity, return on investment, capacity utilization, inventories and employment rates.

280. In a sunset review, on the other hand, authorities, in deciding whether to revoke the order,
examine the likely volume of imports in the future that have been restrained by the discipline of the
order and the likely impact in the future of that volume on a domestic indus try that has enjoyed the
benefit of an anti-dumping order for the past five years. Because of the presence of the order, it may
be the case that at the time of a sunset review, du mped imports have ceased and the domestic industry
is no longer experiencing, or being threatened with, material injury. In a sunset review, the
investigating authority does not have the benefit of existing evidence regarding the future state of the
domestic industry. Rather, in a sunset review , the investigating authority must engage in
counterfactual analysis to determine whether a prospective change in the status quo – i.e., revocation
of the order – would be likely to lead to continuation or recurrence of injury. Thus, a determination of
likelihood inherently involves less certainty and exactn ess than in an original investigation. “In light
of the fundamental qualitative differences in the nature of these two distinct processes, . . . it [is] not
. . . surprising . . . that the textual obligations pertaining to each of the two processes may differ.”
296

281. In the sunset review on OCTG, the ITC applied the standard set out in both Article 11.3 and
US law. Specifically, the ITC determined whethe r revocation of the anti-dumping and countervailing
duty orders would be likely to lead to continuation or recurrence of material injury to an industry in
the United States within a reasonably foreseeable time. 297 As an aid to determining whether
revocation would be likely to lead to continuation or recurrence of injury, the US statute requires the
ITC to consider, inter alia , “the likely volume, price effect, and impact of imports of the subject
merchandise on the industry if the order is revoked ... .” 298 In this case, the ITC examined each of
these factors. For example, with respect to likely volume, the ITC found that the significant increases
in import volume during the original investigation, substantial excess capacity in several of the subject
countries, and a strong incentive on the part of producers in several of the subject countries to
establish a significant presence in the large, relatively higher-priced US market, among other things,
supported the conclusion that “in the absence of the orders, the likely volume of cumulated subject
imports, both in absolute terms and as a share of the US market, would be significant.” 299 In other
words, the text of the ITC analysis shows that it ex pected injury to recur if the anti-dumping orders
were to be revoked. The ITC did not find merely that injury was possible. Thus it is clear that the
ITC properly applied the standard se t out in Article 11.3. There is nothing in the determination to
indicate that the ITC applied any standard other than the Article 11.3 standard.

282. This brings us back to the meaning of the word “likely.” Argentina’s claim that the ITC
applied the wrong standard in its sunset review in the OCTG case is based on Argentina’s assertion
that the term “likely” must be interpreted to me an “probable.” Article 11.3 does not use the word
“probable.” It refers to “likely,” which is the term used in the US statute and the term used by the
ITC. It is incorrect to conclude that “likely” can only mean “probable.” Dictionaries define “likely”
in various ways.
300 Thus seeking a synonym for “likely” as Argentina does would not advance the
understanding of that term.

296 US – Japan Sunset, para. 7.8.
297 ITC Report at 1.
298 19 USC. §1675a(a) (Exhibit ARG-1).
299 ITC Report at 20.
300 See, e.g. , Ballentine’s Law Dictionary (3d ed. 1969) (“likely” is “not more than ‘probable’ and
sometimes less than ‘probable’ depending upon the context,” “the word ‘likely’ is used in the sense of
sometimes more than possible, and less than probable”) (Exhibit US-13); The Random House Dictionary of the
English Language (1966) (likely means “seeming to fulfil requ irements or expectations”) (Exhibit US-14); The

283. It is true that the US Court of Internationa l Trade, in interpreting “likely” under US law, has
found “probable” to be a synonym for “likely.”
301 However, contrary to Argentina’s suggestion that
“probable” entails a higher degree of certainty than employed by the ITC, the Court has stated that it
“has not interpreted ‘likely’ to imply any degree of certainty.” 302 Therefore, on remand from the
Court to apply the “likely” standard consistent with the Court’s articulation, the ITC’s determinations
did not change. 303 Moreover, the one ITC remand determination reviewed by the Court on this
question was affirmed.304

284. Argentina is also incorrect in arguing that , based on guidance from the SAA, the ITC applies
a standard in which any determination – af firmative or negative – is permissible. 305 The SAA simply
recognizes the inherently predictive nature of the inquiry involved in a sunset review, explaining that
“[t]here may be more than one likely outcome foll owing revocation.”306 The SAA explains further
that

[t]he possibility of other likely outcomes does not mean that a determination that
revocation . . . is likely to lead to continuation or recurrence of . . . injury . . . is
erroneous, as long as the determination of likelihood of continuation or recurrence is
reasonable in light of the facts of the case.307
285. The SAA thus does nothing more than explain that the “likely” standard in sunset reviews
does not mean that a continuation or recurrence of injury must be inevitable. The SAA simply
recognizes that there may be more than one possible outcome when projecting into the future.
Contrary to Argentina’s assertion, the SAA does no t direct the ITC to apply a standard that is
inconsistent with Article 11.3. Moreover, the ITC has never interpreted “likely” to mean “possible.”

286. For the foregoing reasons, the ITC applied the correct standard for determining whether
termination of the anti-dumping duty orders at i ssue would be likely to lead to continuation or
recurrence of injury, and the ITC’s determination wa s otherwise consistent with Article 11. 3 of the
AD Agreement.

G. A
RTICLE 3 DOES NOT APPLY TO SUNSET REVIEWS
287. Argentina asserts that Article 3 of the AD Ag reement applies in its entirety to sunset reviews
conducted under Article 11.3.308 Argentina also claims that in its sunset review in the OCTG case, the
ITC acted inconsistently with specific paragraphs of Article 3.

288. This series of claims by Argentina is premised on the notion that Article 3 does, in fact, apply
to sunset reviews under Article 11.3. In this secti on, the United States explains why this fundamental

American Heritage Dictionary of the English Language (3rd ed.) (likely means “[w]ithin the realm of credibility;
plausible”) (Exhibit US-15); Webster’s Third New Int’l Dictionary of the English Language (1981)
(unabridged) (likely means “having a better chance of occurring than not”) (Exhibit US-16).
301 Usinor Industeel v. United States , Slip Op. 02-70, at 43-44 (CIT 19 July 2002)
(Exhibit US-17).
302 Usinor Industeel v. United States , Slip Op. 02-152 at 6 (CIT 20 December 2002)
(Exhibit US-18).
303 Usinor Remand Determination at 14 (USITC July 2002) (Exhibit US-19).
304 Usinor Industeel v. United States, Slip Op. 02-152 at 24 (20 December 2002) (US-18).
306 SAA at 883 (emphasis added) (Exhibit US-11).
307 Id.

premise is wrong, and that Article 3 does not apply to sunset reviews. In subsequent sections, the
United States will address Argentina’s claims concerning specific paragraphs of Article 3.

289. The inapplicability of Article 3 to sunset reviews under Article 11.3 is clear based on an
analysis of the text of these treaty provisions. Fi rst, Article 3 addresses a “determination of injury,”
whereas Article 11.3 calls for a determination of “recurrence of injury.” The nature of the two
determinations are entirely different, as explained below. 309 Moreover, there are no cross-references
in Article 3 to Article 11, or in Article 11 to Article 3.

290. Argentina relies on footnote 9 to Article 3 to support its position that Article 3 applies to
sunset reviews.310 The language of footnote 9 proves just the opposite. Footnote 9 states:

Under this Agreement the term "injury" shall, unless otherwise spec ified, be taken to
mean material injury to a domestic industry, threat of material injury to a domestic
industry or material retardation of the esta blishment of such an industry and shall be
interpreted in accordance with the provisions of this Article.
291. The text of footnote 9 to Article 3 existed in its present form in the Tokyo Round Anti-
Dumping Code prior to the adoption of the Article 11.3 provision for sunset reviews at the conclusion
of the Uruguay Round, with the only exception that the prior text referred to the “Code,” whereas
footnote 9 refers to the “Agreement.” 311 Further, footnote 9, like its precursor in the Anti-Dumping
Code, is simply a drafting device that avoids unne cessary repetitions of the principle that actionable
injury can take any of three distinct forms: present injury, threat of material injury, or material
retardation of the establishment of an industry.

292. It is clear that (i) “material injury,” (ii) “threa t of material injury,” (iii) “material retardation of
the establishment of a domestic industry,” and (iv) the likelihood of “continuation or recurrence of . . .
injury” are each separate conditions , with separate elements, some of which are specified in the AD
Agreement and some of which are implied. The drafters of the AD Agreement had the option of
including the “likelihood of continuation or recurrence of injury” condition in footnote 9, but chose
not to do so.

293. Applying the definition of “injury” in foot note 9 to the determination of “recurrence of
injury” in Article 11.3 – as Argen tina would have it – would lead to absurd results. It would mean
that the inquiry in a sunset review would become whether expiry of the duty would be likely to lead to
continuation or recurrence of material injury to a domestic industry, threat of material injury to a
domestic industry or material retardation of the establishment of such an industry . Article 11.3 does
not contemplate determinations of a continuation or recurrence of threat or material retardation as a
basis for continuing to apply an anti-dumping duty after a sunset review.

294. Another textual indication that footnote 9 do es not apply to sunset reviews is the phrase
“unless otherwise specified” in the footnote. Article 11.3 does
 specify otherwise: it states that in a
sunset review investigating authorities are to dete rmine the likelihood of a continuation or recurrence
of injury, rather than engage in a “determination of injury” within the meaning of footnote 9 to
Article 3.

309 Cf. US – Japan Sunset , para. 7.167 (stating that there is a “substantial difference” between the
reference in Article 11.3 to a determination of likelihood of continuation or recurrence of dumping and the
reference in Article 2 to a determination of dumping).
311 In the AD Code, the footnote was footnote 2 to Article 3.

295. In addition, footnote 9 is attached to the heading of Article 3, which is “Determination of
Injury,” and Article 3.1 speaks of – presumably – th e same “injury” as a “determination of injury for
purposes of Article VI of GATT 1994.” Article VI of GATT 1994 does not mention sunset reviews,
thereby further reinforcing the conclusion that footnote 9 does not apply to sunset reviews.

296. The inapplicability of Article 3 to sunset reviews under Article 11.3 is further underscored by
the absence of any cross-references in Article 11.3 to Article 3. The existenc e of cross-references in
paragraphs 4 and 5 of Article 11 to other articles of the AD Agreem ent indicate that the drafters
would have been explicit had they intended to make the disciplines of Article 3 applicable to sunset
reviews.
312

297. The fact that Article 3 does not apply to sunset reviews is clear not only from the text of the
AD Agreement, but also in view of the nature of a sunset review. As mentioned previously, the focus
of a review under Article 11.3 differs from that of an original investigation under Article 3. As the
Appellate Body observed in the context of su nset reviews under the SCM Agreement: “original
investigations and sunset reviews are distinct processes with different purposes.”
313 The difference
between the nature and practicalities of the inquiry in an original investigation and of the inquiry in a
sunset review demonstrate that the tests for each cannot be identical.

298. In an original investigation, the investigati ng authorities examine the current condition of an
industry that has been exposed to the effects of unrestrained, dumped imports that are competing
without remedial measures in place. In doing so , the authorities must examine the volume, price
effects and impact of the unrestrained imports on a domestic industry that may be indicative of
present injury or threat of material injury.

299. Five years later, in an Article 11.3 sunset review, the investigating authorities must determine
whether “expiry of the duty would be likely to lead to continuation or recurrence of . . . injury.”
Under US law, the ITC examines the likely volume of imports in the future that have been restrained
for the last five years by the anti-dumping duty order, the likely price effects in the future of such
imports, and the likely impact of the imports in the future on the domestic industry that has been
operating in a market where the remedial order has been in place.

300. As a result of the order, dumped imports may have decreased or exited the market altogether
or, if they have maintained their presence in the ma rket, they may be priced higher than they were
during the original investigation, when they were entering the market unencumbered by any
additional duties. With the presence of the order, it would not be surprising that no injury or causal
link presently exist, a fact recognized by the standard of “continuation or recurrence of injury.”

301. Thus, the inquiry contemplated pursuant to Article 11.3 is counterfactual in nature, and entails
the application of a decidedly different analysis with respect to the volume, price and impact. Indeed,
there may no longer be either any subject imports or material injury once an anti-dumping order has
been in effect for five years. The authority must then decide the likely impact of a prospective change
in the status quo; i.e., the revocation of the anti-dumping du ty order and the elimination of its
restraining effects on volumes and prices of imports . The differences in the nature and practicalities

312 Cf. US – Japan Sunset , Panel Report para. 7.166 (stating that the existence of cross-references in
Articles 11.4 and 11.5 to other articles of the AD Agreement, and the absence of such a cross-reference in
Article 11.3 to Article 2, indicates that the disciplines of Article 2 are not applicable to sunset reviews); and US -
German Steel, para. 69 (stating that the existence of cross-references in the SCM Agreement suggests that when
the negotiators of the Agreement intended the disciplines of one provision to apply to another, they expressly
provided for such application).
313 US - German Steel, para. 87.

of the inquiry in an original investigation and in a sunset review demonstrate that the requirements for
the two inquiries cannot be identical.

302. Although Article 3 does not apply to sunset re views, the United States recognizes that some
of the provisions of Article 3 may provide guidance as to the type of information that may be relevant
to the examination in a sunset review of whether material injury is likely to continue or recur.314

H. THE PANEL SHOULD REJECT ARGENTINA’S CLAIMS UNDER ARTICLE 3.1 OF THE
AD AGREEMENT
303. In Section VIII.B of its First Submission, Argent ina claims that in its sunset review of OCTG
from Argentina, the ITC failed to conduct an “ objective examination” and failed to base its
determination on “positive evidence” as required by Article 3.1 of the AD Agreement. The Panel
should reject Argentina’s claims, because: (1) Article 3.1 does not apply to sunset review under
Article 11.3; and (2) assuming arguendo that Article 3.1 does apply to sunset reviews, the ITC did not
act inconsistently with Article 3.1.

1. Article 3.1 does not apply to sunset reviews
304. Argentina claims concerning Ar ticle 3.1 are premised on the notion that Article 3.1 applies to
sunset reviews. Article 3.1 provides as follows:

A determination of injury for purposes of Article VI of the GATT 1994 shall be based
on positive evidence and involve an objec tive examination of both (a) the volume of
dumped imports and the effect of dumped imports on prices in the domestic market
for like products, and (b) the consequent impact of these imports on domestic
producers of such products.
305. As explained above, the provisions of Article 3 are not applicable to sunset reviews. In
addition to the reasons given above, there are furthe r textual indications in Article 3.1 as to why it
specifically is not applicable to sunset reviews. In a sunset review, authorities are required to evaluate
the likelihood in the future of a continuation or recu rrence of injury if the dumping order is lifted.
Imports may not even be present in the market at the time of the sunset review, and they may not be
sold at dumped prices. How then can investigati ng authorities comply with Article 3.1 and examine
“the volume of dumped imports and the effect of dumped imports on prices?” It is apparent that the
requirements of Article 3.1 do not apply to sunset reviews because the dictates of Article 3.1 are
potentially incompatible with the nature of the inquiry in a sunset review.

306. The panel and Appellate Body reports that Argentina relies on are either not relevant or not
conclusive on the question of whether Article 3.1 applies to sunset reviews. Argentina quotes the
Appellate Body report in Thai Angles to the effect that “the obligations in Article 3.1 apply to all
injury determinations undertaken by Members.”
315 Argentina takes this statement out of context,
however. Thai Angles did not involve a sunset review, and thus the applicability of Article 3 to
Article 11.3 was not before the Ap pellate Body. The fact that Artic le 3.1 applies to all “injury”
determinations does not mean that it also app lies to all “continuation or recurrence of injury”
determinations.

314 Cf. US – Japan Sunset , paras. 7.174 and 7.176 (stating that, although Article 2 does not apply to
sunset reviews, it “provides guidance” as to, or “may inform,” the type of information that may be relevant to a
sunset review examination of the presence or absence of dumping since imposition of the order).
315 Argentina's first submission, para. 234, quoting from Thai Angles (AB), para. 114 (emphasis added
by Argentina).

307. Argentina relies also on US - Japan Sunset , but as Argentina itself acknowledges, the panel
made no definite finding in that report concerning the applicability of the provisions of Article 3 to
sunset reviews under Article 11.3.
316 Finally, Argentina relies on the Appellate Body report in Hot-
Rolled Steel from Japan. 317 This report discusses the relevan ce of Article 3.1 to the more detailed
obligations in the rest of Article 3, and it elabor ates on the meaning of the terms “positive evidence”
and “objective examination,” but it does not address the question of the applicability of the provisions
of Article 3 to Article 11 (nor coul d it as the dispute did not involve a sunset review). There is no
merit to Argentina’s suggestion that any of the cited WTO reports supports the applicability of
Article 3 disciplines to sunset reviews.

2. The ITC’s Sunset Determination was consistent with Article 3.1, because it was based on
a proper establishment of the relevant facts, an unbiased and objective evaluation of
those facts, and positive evidence
308. The United States recognizes that an authority’s establishment of the facts in a sunset review
must be “proper,” that the evaluation of those facts must be “unbiased and objective,” 318 and that the
determination of whether expiry of the duty would be likely to lead to con tinuation or recurrence of
injury should be based on positive evidence.319

309. Argentina argues that the ITC failed to conduc t an "objective examination" based on "positive
evidence” in accordance with Article 3.1. As explained above, Article 3.1 does not apply to sunset
reviews. Nonetheless, the ITC’s sunset determin ation was based on a proper establishment of the
relevant facts and an unbiased and objective evaluation of those facts, was based on positive evidence,
and, accordingly, effectively satisfies the requirements of Article 3.1, were that provision applicable.

310. The Appellate Body has explained that an objective examination is one that is made in “an
unbiased manner, without favouring the interests of any interested party, or group of interested
parties”320 and that "positive evidence" relates to the "quality of the evidence" such that it must be "of
an affirmative, objective and verifiable character, and that it must be credible." 321 As discussed
below, the ITC carefully reviewed an extensive array of factors and evidence relative to the likely
volume, price effect and impact of dumped imports on the domestic industry. Argentina has failed to
show that the ITC’s determination wa s biased in favour of any intere sted party or that the quality of
the evidence considered was compromised in any way.322

311. Indeed, the Argentine respondent’s arguments before the ITC in the sunset proceeding did not
involve claims of bias or any flaw in the quality of existing evidence. That the ITC may have
attributed a different weight or meaning to record evidence than the Argentine respondent would have
preferred, does not go to whether the ITC conduc ted an "objective" examination based on "positive"
evidence.
323

316 Argentina's first submission, paras. 235 and 239.
317 Argentina's first submission, paras 234 and 237, discussing US - Hot-Rolled Steel.
318 AD Agreement, Article 17.6(i).
319 US – Japan Sunset, para. 7.177.
322 Indeed, the ITC made a negative likelihood determination with respect to drill pipe, resulting in the
partial revocation of the anti-dumping duty order on OCTG from Argentina.
323 Cf. EC – Pipe Fittings , para. 128 (stating, in the context of whether the panel made an “objective”
and “unbiased” review pursuant to AD Agreement Article 17.6(i), that it is “not sufficient for [the complaining
party] simply to disagree with the Panel’s weighing of the evidence” and that a panel does not err in declining
“to accord the evidence the weight that one of the parties sought to have accorded to it”) (internal quotations and
footnotes omitted).

312. Argentina’s claims with regard to the likely volume of imports, likely price effects of imports,
and likely adverse impact of imports are discussed in turn below.

(a) The ITC’s Findings on the Likely Volume of Imports
313. Argentina challenges the ITC’s finding that the volume of imports of OCTG casing and
tubing would be likely to increase significantly in the event of revocation of the order. Before
addressing Argentina’s specific arguments, it may be useful to review the basis for the ITC’s finding.

314. The ITC first reviewed its findings as to the volume of imports in its original injury
determination. In that determination, the ITC fo und that the rate of increase in the volume of
cumulated subject imports was far greater than the overall increase in consumption between 1992 and
1994. The ITC also found that the market share of subject imports by both volume and value rose
significantly, nearly doubling from 1992 to 1994, an d that domestic producers' market share declined
substantially.

315. The ITC noted that after the anti-dumping dut y orders went into effect, subject imports
decreased, but remained a factor in the US market. The ITC found that while current import volume
and market share of subject imports was substantiall y below the levels of the original investigation,
current levels likely reflected the restraining effects of the orders.

316. The ITC considered foreign producers’ operatio ns not just with respect to OCTG casing and
tubing, but with respect to all pipe and tube products produced on the same machinery and equipment
as casing and tubing.
324 It did so because it had found that pipe and tube producers in the subject
countries produced a variety of other tubular produc ts in addition to OCTG (such as standard, line,
and pressure pipe, mechanical tubing, pressure tubing, and structural pipe and tubing) on the same
equipment in the same production facilities. These producers thus could easily shift production away
from other tubular products toward production of OCTG and vice versa. Argentina does not
challenge this finding. The ITC also found that of all the tubular products that could be produced in
these facilities, OCTG commanded among the highest prices in the market, and producers thus had an
incentive to make as much OCTG as possible in relation to other products.
325 Again, Argentina does
not challenge this finding.

317. The ITC found there to be substantial available capacity in the subject countries for increasing
exports of casing and tubing to the United States.

318. With respect to producers in Japan, the ITC noted that in the original investigations, the
import volume, market share, and production capac ity of casing and tubing from Japan were the
largest of the subject countries. During the origin al investigation, Japanese producers had reported
excess capacity. Only one of the four Japanese producers identified in the original investigation
participated in the sunset review. (The ITC noted that another of the four original producers, Nippon,
may have closed its OCTG plant). The particip ating producer, NKK, apparent ly represented a lesser
share of total Japanese production. The ITC note d the reported capacity of NKK, and taking into
account the fact that other Japanese producers chose not to provide the ITC with data, concluded that
there was significant available capacity among other Japanese producers.
326

319. With respect to producers in Korea, the ITC to ok note of their unused capacity and compared
it in size to total US consumption.327

324 ITC Report at 17.
325 ITC Report at 16.
326 ITC Report at 18.
327 ITC Report at 19.

320. With respect to producers in the other subject countries (Argentina, Italy and Mexico), the
ITC recognized that their “recent ... capacity utilization rates represent a potentially important
constraint on the ability of these subject producers to increase shipments of casing and tubing to the
United States.”
328

321. Despite the apparently high capacity utiliza tion rates of producers in Argentina, Italy and
Mexico, the ITC found that these producers, and th e producers in Japan an d Korea, would have
incentives to devote more of their productive ca pacity to producing and shipping more casing and
tubing to the US market, for the following reasons.

322. First, the ITC found that the alliance of five foreign producers known as Tenaris
329 would be
likely to have a strong incentive to expand its presence in the United States if the orders were revoked.
The ITC’s analysis of this issue is worth quoting in full:330

Tenaris is the dominant supplier of OCTG pr oducts and related services to all of the
world’s major oil and gas drilling regions except the United States. Tenaris states
that it is the only entity that can serve o il and gas companies on a global basis, and
that it seeks worldwide contracts with such companies. Many of Tenaris’ existing
customers are global oil and gas companies with operations in the United States. 124
While the Tenaris companies seek to down play the importance of the US market
relative to the rest of the world, they ack nowledge that it is the largest market for
seamless casing and tubing in the world. Given Tenaris’ global focus, it likely would
have a strong incentive to have a significant presence in the US market, including the
supply of its global customers’ OCTG requirements in the US market.126
United States represent only 12-14 per cent of US oil and gas rigs. TAMSA Posthearing Br.
Exhibit 3. The domestic industry asserts that these firms have a substantially greater US
presence. Domestic Producers’ Prehearing Br. at 46. We find that these global companies
have a significant US presence using either estimate.

 126 As described above, we do not find that Tenari s’ preference to sell directly to end users as
opposed to distributors is likely to limit significantly its participation in the US market.

323. The second reason that 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 is that casing and tubing
were among the highest valued pipe and tube products, generating among the highest profit
margins.331 The third factor (related to the second) that the ITC relied on is that prices for casing and
tubing on the world market were significantly lower than prices in the United States.332

328 ITC Report at 19.
329 The members of Tenaris are: Siderca in Argentina, Dalmine in Italy, TAMSA in Mexico, NKK in
Japan, and Algoma in Canada. The ITC found that the Tenaris companies operate as a unit, submitting a single
bid for contracts to supply OCTG products and related services; and that Tenaris’ customer base includes large
multi-national oil and gas companies, many of which have operations in the United States. ITC Report at 16.

330 ITC Report at 19.
331 ITC Report at 19.
332 ITC Report at 19-20.

324. Fourth, the ITC found that subject country pr oducers also faced import barriers in other
countries, or on related products. The ITC noted that: (i) Argentine, Japanese, and Mexican producers
were subject to anti-dumping duty orders in the Un ited States on seamless standard, line, and pressure
pipe (which are produced in the same production f acilities as OCTG); (ii) Korean producers were
subject to import quotas on welded line pipe shipped to the United States and US anti-dumping duty
orders on circular, welded, non-alloy steel pipes; and (iii) Canada imposed an anti-dumping duty of
67 per cent on casing from Korea.333

325. The fifth reason that the ITC found that the subject producers would have an incentive to
devote more of their capacity to shipping casing an d tubing to the US market is that industries in at
least some of the subject countries were heavily export-dependent. The ITC noted that Japan and
Korea in particular had very small home markets and depended nearly exclusively on exports.334

326. Argentina argues that the ITC’s analysis of the likely volume of imports is flawed in three
respects. None of Argentina’s arguments stand up to scrutiny.

327. First, Argentina argues that there was no evidence that Tenaris could re-orient to the United
States production that was co mmitted under existing contracts.
335 The record in the OCTG sunset
review, however, plainly supports the ITC's find ing. As an initial matter, the ITC found – and
Argentina does not dispute – that "Tenaris is the dominant supplier of OCTG products and related
services to all of the world's major oil and gas dr illing regions except the United States ."336 As the
only major market not already dominated by Tenaris, the United States represented the best growth
opportunity for the Tenaris producers. Given that th e United States was by far the largest market for
OCTG,337 Tenaris had a strong incentive to increase its share of the US market.338

328. Tenaris's current contracts with its customers also supported this conclusion. Tenaris
described itself as the only entity that could serve oi l and gas companies on a global basis, and stated
that it sought worldwide contracts with such companies. 339 In fact, the Tenaris producers already had
contracts with global oil and gas companies that covered all operations outside the United States. 340
Tenaris's own desire for worldwide contracts with its existing customers – which could be satisfied
only by contracts that covered the world's larg est market for OCTG – constituted a very strong
incentive to increase US shipments. 341 While Argentina claims that the ability of the subject

333 ITC Report at 20.
334 ITC Report at 20.
336 ITC Report at 19 (emphasis added).
337 Id. The director of one of the largest distributors of OCTG in the United States testified at the ITC
hearing that: "[t]he United States is half the world for the purposes of OCTG and I can guarantee you that none
of these producers has overlooked that fact." Transcript of US International Trade Commission Hearing (8 May
2001) ("Hearing Tr.") at 55 (Mr. Stewart, Hunting Vinson) (Exhibit US-20).
338 The chief executive officer of one of the world’s largest distributors of OCTG stated at the ITC
hearing: "I know that [Tenaris] had been pushing for more North American business and is especially eager to
get into Alaska. 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.”
Hearing Tr. at 56 (Mr. Chaddick, Sooner, Inc.) (Exhibit US-20).
339 ITC Report at 19.
340 The president and chief executive officer of one of the largest distributors of OCTG in the United
States testified at the ITC hearing that: "[m]any of these end users already have single source deals for
international supply and they very much want to extend these arrangements to the United States." Hearing Tr. at
59 (Mr. Ketchum, Red Man Pipe and Supply) (Exhibit US-20).
341 The director of one of the largest distributors of OCTG in the United States testified at the ITC
hearing that: "[t]hey [the Tenaris companies] are already positioning themselves to serve as global suppliers to
the major end users and they know that you just cannot do that if you are not in this market."). Hearing Tr. at 55
(Mr. Stewart, Hunting Vinson) (Exhibit US-20).

producers to increase shipments was limited by contra cts, many of those contracts were with the very
end users most eager to see subject imports enter the US market.
342 Indeed, testimony at the hearing
indicated that customers already buying OCTG from the subject producers would immediately import
the subject product if these orders were revoked.343

329. Perhaps most importantly, the record in the ITC’s review showed that "prices for casing and
tubing on the world market are significantly lower than prices in the United States." 344 Indeed, one
major distributor testified that Tenaris "could dram atically undersell the going price in the United
States and still get greater returns than they currently do from their international sales." 345 This price
gap represents a very strong incentive not only to in crease shipments to the United States, but to shift
sales from other markets to serve US customers.

330. Second, Argentina argues that the ITC could po int to only one trade barrier in third country
markets, the 67 per cent dumping duty in Canada against imports from Korea.
346 Argentina appears to
overlook the fact that the ITC examined import barr iers that the producers of casing and tubing faced
in other countries and on related products (lower-p riced products that were produced in the same
facilities as casing and tubing) in the United States . As detailed above, the ITC took into
consideration that OCTG producers in four of the fi ve countries subject to the sunset review at issue
(Argentina, Japan, Korea, and Mexico) faced import restrictions in the United States on a variety of
other pipe and tube products. 347 There was clearly ample “positive evidence” that the existence of
import barriers tended to support a conclusion that increased exports would be likely to enter the US
market.

331. Third, Argentina attacks the ITC’s finding th at foreign producers had an incentive to export
OCTG casing and tubing to the United States becaus e prices in the United States were significantly
higher than in other markets. Specifically, Argentina contends that the ITC's finding of a price
differential was based "on anecdotal reports from its hearing and not on any independent
investigation."
348 This statement completely misrepresents th e ITC's analysis of this issue. In fact,
the "anecdotal reports" in question were sworn stat ements by some of the largest OCTG distributors
in the world. 349 (Witnesses who testify at ITC hearings in sunset reviews must swear to the
truthfulness of their testimony and are subject to cr iminal prosecution for perjury.) Furthermore, the
ITC specifically stated that it considered – but was not persuaded by – the arguments of foreign
producers that these price differences were exaggerated. 350 In short, the evidence shows that the ITC

342 This director testified that "[m]ost of the major end users already purchase from these subject
producers internationally and the end users are unwavering in their desire to see the extremely low priced OCTG
that they get internationally extended to the US market." Id. (Exhibit US-20).
343 The president and chief executive officer of one of the largest distributors of OCTG in the United
States testified at the ITC hearing that: "I recently spoke with a major end use[r] who told me that he could get a
far lower price from his international supplier which happened to be one of the foreign producers subject to the
orders here. He also said that if these orders were revoked, he would immediately switch to the same foreign
producer to supply his needs." Hearing Tr. at 58 (Mr. Ketchum, Red Man Pipe and Supply) (Exhibit US-20).
344 ITC Report at 19 (emphasis added).
345 Hearing Tr. at 56 (Mr. Chaddick) (Exhibit US-20).
347 ITC Report page 20.
349 See, e.g. , Hearing Tr. at 54 (Mr. Stewart) ("International prices are significantly below those
prevailing in the United States; in most cases 20 to 25 per cent below.") (Exhibit US-20); id. at 56 (Mr.
Chaddick) ("{Tenaris's} prices in international {markets} have been as much as 40 per cent lower than United
States prices.").
350 ITC Report at 20. As noted above, the “positive evidence” standard does not preclude the existence
of any evidence that runs counter to an investigating authority’s conclusion. If it did, the standard of review for
panels in Article 17.6(i) of the AD Agreement would be superfluous.

did conduct an independent investigation of this issue by considering the relevant evidence submitted
by both parties – and that this evidence demonstrat ed the existence of a substantial price gap between
the United States and the rest of the world.

332. Together, the evidence concerning the import volume trends in the original investigation, the
importance of the US market, Tenaris's desire for global contracts, the desire of its end users to
purchase imports in this market, the evidence of import barriers on OCTG and related products, and
the price gap between world markets and the United States strongly supports the ITC's finding that
subject producers had strong incen tives to shift into this market and that the subject imports were
likely to increase in volume. Argentina's arguments to the contrary are without merit.

(b) The ITC’s Findings on the Likely Price Effects of Imports
333. Argentina challenges the ITC’s finding that revocation of the orders would likely result in
negative price effects.
351 Before addressing Argentina’s specific arguments, it may be useful to
review the basis for the ITC’s finding.

334. The ITC determined that "in the absence of the orders, casing and tubing from Argentina,
Italy, Japan, Korea, and Mexico likely would compete on the basis of price in order to gain additional
market share."
352 The ITC further determined that "such price-based co mpetition by subject imports
likely would have significant depressing or suppressing effects on the prices of the domestic like
product."353 These conclusions rested on a number of findings, including:

 – the likely significant volume of imports;
 – the high level of substitutability betwee n the subject imports and the domestic like
product;
 – the importance of price in purchasing decisions;
 – the volatile nature of US demand;
– the underselling by the subject imports in the original investigations and the current
review period.
354

335. Argentina has not seriously challenged any of these findings. As demonstrated above,
Argentina's contentions concerning the likely volume of imports are without merit. Argentina has not
even challenged the ITC's findings with respect to substitutability. Argentina's remaining arguments
are groundless and should be rejected.

336. With respect to the significance of price in purchasing decisions, Ar gentina contends that
"{p}rice is an important, although not determinative, factor to purchasers." 355 The ITC, however,
never found that price was a "deter minative" factor; it simply held that "price is a very important
factor in purchasing decisions." 356 Given that Argentina concedes that price is an "important" factor,
it would appear that Argentina has no basis to compla in about this finding. In any event, the record
plainly showed that purchasers identified "price" as the most important factor in purchasing decisions
far more often than any other factor except for "qua lity," and that price far outstripped quality among
purchasers ranking their second and third most important factors. 357 Furthermore, given that all

351 Argentina's first submission, paras. 247-251.
352 ITC Report at 21.
353 Id.
354 Id.
356 ITC Report at 21.
357 Id. at II-17.

parties agreed that subject casing and tubing wa s interchangeable with the domestic like product,
358
and that customers would accept any high-quality, API-certified product regardless of origin, 359 the
record demonstrates that quality would be less of an issue in purchasing decisions, increasing the
importance of price. These facts clearly support the ITC's finding on the importance of price.

337. As for the volatile nature of demand, Argentina contends that the ITC failed to explain why
this factor was significant, and that the ITC did not cite any evidence that demand for OCTG was
unusually volatile during the period examined. 360 These arguments are unavailing. Certain forecasts
showed that demand for OCTG was likely to remain strong in the near future. 361 Nevertheless, all
forecasts are by their nature imprecise and such forecasts are inherently suspect given the volatility of
the forces affecting oil and gas supply and demand globally.
362 Thus, as it considered the likely effect
of revoking these orders, the ITC could not assume that strong levels of demand would insulate
domestic producers from the negative price effects of subject imports.363

338. As for underselling by imports, Argentina's complaints relate solely to the ITC's discussion of
underselling during the current review period. 364 But the ITC itself placed little weight on this point,
as it recognized that the orders had significantly reduced the volume of subject imports. 365 What was
much more significant to the ITC – and what Argen tina completely ignores in its submission – is the
fact that underselling by subject imports during the original investigations drove down US prices. 366
This evidence, which Argentina has not refuted or even challenged, strongly supports the ITC's
finding on price effects, for it shows the effect of subject imports on US prices in the absence of anti-
dumping and countervailing duty orders.

339. Finally, Argentina maintains that the ITC failed to recognize that domestic prices increased at
the end of the period examined, and that it is "compl etely illogical" to conclude that, where prices are
increasing, imports will enter at lower prices and cause injury.
367 The record in the ITC’s review
refutes these claims. First, the ITC did recognize that domestic prices rose at the end of the period of
review – although they remained below 1998 levels. 368 Second, evidence from the original
investigation strongly supports a finding that imports can drive down domestic prices even during a
period of strong demand. 369 Thus, it was completely logical for the ITC to conclude that whatever
current prices may be, imports would drive down or suppress the price of the domestic like product if
the orders were revoked.

340. In conclusion, Argentina's criticisms of the ITC's findings with respect to price effects are
without merit. Assuming arguendo that Article 3.1 applies to sunset reviews under Article 11.3, the
ITC's findings on this point should be found to be consistent with the requirements of Article 3.1.

358 Id. at 12.
359 Id.
361 ITC Report at 15.
362 Id.
363 It should also be noted that there was no need for the ITC to demonstrate that the OCTG market had
been "unusually volatile"; the ITC made clear in its discussion of the point that OCTG market is always volatile.
Id.
365 ITC Report at 21.
366 Id. at 20-21.
368 ITC Report at 21 ("For most products, domestic prices peaked in 1998, fell significantly in 1999,
then rebounded in 2000.").
369 Id. at 22 ("{I}n 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.").

(c) The ITC’s Findings on the Likely Impact of Imports
341. Argentina challenges the ITC’s finding that revocation of the orders would likely result in an
adverse impact on the domestic industry.370

342. The ITC found that the condition of the domestic industry had improved since the anti-
dumping duty orders had been imposed, and that the current condition of the domestic industry was
“positive.”371 Nonetheless, the ITC found that revocation of the orders likely would lead to a
significant increase in the volume of subject imports , which likely would undersell the domestic like
product and significantly depress or suppress the domestic industry's prices, leading to a significant
adverse impact on the domestic industry. The ITC noted that in the original investigation, a
significant increase in demand had not precluded subject imports from gaining market share and
having adverse price effects.

343. Argentina argues essentially th at the ITC’s findings as to the likely impact of imports on the
domestic industry are flawed because of the alleged deficiencies in the findings regarding the likely
volume and price effects of imports, on which the IT C’s impact finding rests. Argentina’s arguments
concerning volume and price effects are without any merit, for the reasons discussed above, and its
claim regarding the adverse impact finding should be rejected for the same reasons.

I. T
HE ITC SUNSET DETERMINATION ON OCTG FROM ARGENTINA IS NOT INCONSISTENT WITH
ARTICLE 3.4 OF THE AD AGREEMENT
344. Argentina claims that the ITC acted inconsis tently with Article 3.4 of the AD Agreement by
failing to evaluate all of the economic factors enumerated therein in its OCTG sunset determination.372
Article 3.4 provides:

The examination of the impact of the dumped imports on the domestic industry
concerned shall include an evaluation of all relevant economic factors and indices
having a bearing on the state of the industry, including actual
 and potential decline in
sales, profits, output, market share, produc tivity, return on investments, or utilization
of capacity; factors affecting domestic pr ices; the magnitude of the margin of
dumping; actual and potential negative effects on cash flow, inventories,
employment, wages, growth, ability to raise ca pital or investments. This list is not
exhaustive, nor can one or several of these factors necessarily give decisive guidance.
 (Emphasis added).

345. As explained above, the provisions of Article 3 do not govern sunset reviews. Therefore, the
ITC sunset determination in OCTG from Argentin a cannot be found to be inconsistent with
Article 3.4.

370 Argentina's first submission, paras. 252-254.
371 ITC Report at 22. Argentina’s recitation of the evidence which the ITC reviewed in reaching this
conclusion is somewhat selective, and does not reveal the extreme volatility in the domestic industry’s
performance over the period that the ITC examined. For example, the ITC noted that domestic producers’
shipments fluctuated dramatically during the period of review, declining from 1,410,088 short tons in 1998 to
1,055,770 short tons in 1999, and rising again to 2,005,644 short tons in 2000. ITC Report at 22. Financial
results were similarly volatile: from 1995 to 1997 operating income increased from a loss of $0.6 million to a
profit of $174 million, before declining to a loss of $1 29 million in 1999, and then rising to a profit of $130
million in 2000. Id. Given this volatility in the domestic industry’s performance, it is inaccurate to speak of
“positive trends,” as Argentina does. Argentina's first submission, para. 254.
372 Argentina's first submission, paras. 255-266.

346. In addition to the reasons given above regardin g Article 3 in general, there are further textual
indications in Article 3.4 as to why it specifically is not applicable to sunset reviews. There may be
no “dumped imports” at the time of a sunset review, and consequently there may be no “impact” for
the investigating authority to examine. There also may not be any “actual and potential” declines
evident or reflected in the information before the investigating authority at the time of the sunset
review, by virtue of the absence of imports. In sh ort, the obligations descri bed in Article 3.4 cannot
practicably be applied to all sunset reviews, and certainly could not be applied to sunset reviews in the
same systematic and comprehens ive manner that has been required in original dumping
investigations.

347. Nevertheless, the United States notes that th e report of the ITC staff in the OCTG sunset
review, which is appended to the ITC published determination and which the ITC adopted,
373
presented detailed information concerning each of the Article 3.4 factors, as follows:

Factor (* indicates that the ITC discussed
this factor specifically)
Location in ITC Report
Declines (actual or potential) in
Sales * p. III-6, Table III-9
Profits * p. III-6, Table III-9
Output * p. III-1, Table III-1
Market Share * p. IV-3, Table IV-1
Productivity p. III-4, Table III-7
Return on Investments p. III-6, Table III-9
Capacity Utilization * p. III-1, Table III-1
Factors Affecting Domestic Prices Part V
Margin of Dumping p. V-1
Actual or Potential Negative Effects on:
Cash Flow p. III-6, Table III-9
Inventories p. III-4, Table III-5
Employment p. III-4, Table III-7
Wages p. III-4, Table III-7
Growth p. III-6, Table III-9
Ability to Raise Capital or
Investments *
p. III-13, Table III-32

J. THE ITC SUNSET DETERMINATION ON OCTG FROM ARGENTINA IS NOT INCONSISTENT WITH
ARTICLE 3.5 OF THE AD AGREEMENT
348. Argentina argues that the ITC failed to comply with the obligations of Article 3.5 to analyze
any causal link between subject imports and injury to the domestic industry, and that it failed to
“separate and distinguish the potentially injurious ef fects of other causal factors from the potential
effects of the dumped imports.”374

349. Article 3.5 provides:

It must be demonstrated that the dumped imports are , through the effects of dumping,
as set forth in paragraphs 2 and 4, causing injury within the meaning of this
Agreement. The demonstration of a causal relationship between the dumped imports
and the injury to the domestic industry shall be based on an examination of all

373 Transcript of 15 June 2001 ITC Meeting at 5 (Exhibit US-21).
374 Argentina's first submission, paras. 267-269.

relevant evidence before the authorities. The authorities shall also examine any
known factors other than the dumped imports which at the same time are injuring the
domestic industry, and the injuries caused by these other factors must not be
attributed to the dumped imports. Factor s which may be relevant in this respect
include, inter alia , the volume and prices of imports not sold at dumping prices,
contraction in demand or changes in the patterns of consumption, trade restrictive
practices of and compe tition between the foreign and domestic producers,
developments in technology and the export performance and productivity of the
domestic industry.
 (Emphasis added).

350. As explained above, the provisions of Article 3 are not applicable to sunset reviews. In
addition to the reasons given above, there are furthe r textual indications in Article 3.5 as to why it
specifically is not applicable to sunset reviews.

351. First, 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. As a result
of the order, such imports may have decreased or exited the market altogether, or if they have
maintained their presence in the market, they may be priced higher than they were during the original
investigation, when they were entering the market unencumbered by any additional duties.

352. Second, Article 3.5 refers to existing “injury” and describes an existing causal link between
dumped imports and that injury. However, in a su nset 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 duty order. This is implicit in the referenc e in Article 11.3 to the
“continuation or recurrence
 of injury.”

353. Third, Article 3.5 refers to “any known factors other than the dumped imports which at the
same time are injuring the domestic industry.” (Emphasis added). In a sunset review, where the
focus is on evaluating the likely effect of imports upon expiry of the duty ( i.e., at some point in the
future), other factors “which at the same time are injuring the domestic industry” will not be “known”
to the investigating authority.

354. In sum, it is clear from the text of Article 3.5 that the obligations contained in that article does
not extend to sunset reviews.

355. Furthermore, the United States notes that ev en if Article 3.5 were applicable, Argentina has
not identified which “other causal factors” the ITC should have considered. Argentina asserts that the
ITC failed to consider “other characteristics of the market ( e.g., expected changes in demand)” in the
section of the determination discussing the likely impact of revocation on the domestic industry.
375
The ITC described a number of c onditions of competition that informed its analysis in the sunset
review.376 These included a review of forecasts of future demand, which suggested that demand
would remain strong.377 Strong demand is, of course, not likely to be “another cause” of injury.

376 ITC Report, pages 14-16.
377 ITC Report, pages 15-16.

K. T
HE TIME FRAME IN WHICH INJURY WOULD BE LIKELY TO RECUR
1. The US Statutory Provisions as to the time frame in which injury would be likely to
recur are not inconsistent with Articles 11.3 and 3 of the AD Agreement
356. Argentina claims that the US statutory requirements contained in Sections 752(a)(1) and
752(a)(5) of the Tariff Act of 1930, as amended, are inconsistent “as such” with AD Agreement
Articles 11.3 and 3. 378 Sections 752(a)(1) and 752(a)(5) inst ruct the ITC in a sunset review to
determine whether injury 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."379

357. Argentina misconstrues Article 11.3. Article 11.3 does not specify the time frame relevant to
a sunset inquiry. Argentina’s suggestion that Me mbers are required to assess the likelihood of
recurrence “upon revocation of the order”380 or “upon expiry of the order” 381 are without any basis in
the text of the Agreement. Article 11.3 only re quires a determination of whether revocation "would
be likely to lead to continuation or recurrence of in jury." At most, the words “to lead to” suggest that
the recurrence of injury need not be immediate – that it need not occur “upon” revocation of the order.

258. In the absence of any specific provision in Article 11.3, Members remain free to determine
under their own laws and procedures the time frame re levant 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 peri od of time." The legislative history underlying
the US statutory provisions provides the ITC with guidance on the factors that it should consider in
deciding what the appropriate time-frame should be in any particular case.
382

359. Argentina also seeks to invoke provisions of Ar ticle 3 that do not apply to sunset reviews.
Both Article 3.7 and 3.8 by their terms pertain to threat determinations, not to sunset reviews,
(notwithstanding Argentina’s attempt to extend th e application of these pr ovisions to all “cases
involving future injury”).
383

360. In sum, the AD Agreement is silent on the question of the relevant time frame within which
injury would be likely to recur. This is left to the discretion of Members, and the standard adopted in
US law is reasonable. As such, it cannot be fou nd to be inconsistent with Article 11.3 or any
provision of Article 3 (assuming arguendo that Article 3 applies to sunset reviews).

378 Argentina's first submission, paras. 270-275. In the heading preceding paragraph 270 of its
submission (heading “C’) and in the Executive Summary of its claims (para. 41) Argentina asserts that these US
statutory provisions are also inconsistent with AD Agreement Article 11.1.
379 19 USC. §§ 1675a(a)(1), 1675a(a)(5) (Exhibit ARG-1).
382 The SAA, at 887, explains that the factors that the ITC should consider include “the fungibility or
differentiation within the product in question, the level of substitutability between the imported and domestic
products, the channels of distribution used, the methods of contracting (such as spot sales or long-term
contracts), and lead times for delivery of goods, as well as other factors that may only manifest themselves in
the longer term, such as planned investment and the shifting of production facilities.” (Exhibit US-11).

2. The ITC’s application of the Statutory Provis ions as to the time frame in which injury
would be likely to recur was not inconsistent with Articles 11.3 and 3 of the
AD Agreement
361. Argentina claims that the ITC‘s application of the US statutory requirements contained in
Sections 752(a)(1) and 752(a)(5) of the Tariff Act of 1930, as amended, in the sunset review on
OCTG from Argentina was inconsistent with AD Agreement Articles 11.3 and 3.384

362. As discussed above in Section IV, this claim is not with the Panel’s terms of reference.
Nonetheless, there is no substantive merit to Arge ntina’s claim. Because, as explained in the
preceding section, Article 11.3 is s ilent on the time frame relevant to a sunset review and imposes no
obligations in this respect, the ITC cannot be found to have acted inconsistently with Article 11.3 or
Article 3 by failing to specify the precise period that it considered relevant.

L. THE ITC DID NOT ACT INCONSISTENTLY WITH ANY PROVISION OF THE AD AGREEMENT BY
CONDUCTING A CUMULATIVE ANALYSIS IN THE OCTG SUNSET REVIEW
1. The AD Agreement does not prohibit cumulation in sunset reviews
363. Argentina argues that because cumulation is not expressly permitted in Article 11.3, the ITC
is prohibited from engaging in a cumulative analysis in a sunset review. 385 Argentina’s position turns
elementary principles of treaty interpretation on th eir head. The treaty interpreter is to interpret the
ordinary meaning of the terms of the treaty in th eir context and in light of its object and purpose. 386
Accordingly, the genesis of any obligation or righ t arising under the WTO Agreement is the text of
the relevant provision.387 Absent a textual basis, the rights of Members cannot be circumscribed.

364. Even if a prohibition on cumulation could some how be inferred from the text of Article 11.3,
such a prohibition would be illogical and run counte r to the overall object and purpose of the AD
Agreement (i.e., to provide a remedy to protect domestic industries from injury caused by dumped
imports). The Appellate Body explained the ra tionale behind the practice of cumulation in
investigations in its recent report in EC - Pipe Fittings:

A cumulative analysis logically is premis ed on a recognition that the domestic
industry faces the impact of the “dumped imports” as a whole and that it may be
injured by the total impact of the dumped imports, even though those imports
originate from various countries. If, for example, the dumped imports from some
countries are low in volume or are declining, an exclusively country-specific analysis
may not identify the causal relationship between the dumped imports from those
countries and the injury suffered by the dome stic industry. The outcome may then be
that, because imports from such countries could not individually be identified as
causing injury, the dumped imports from these countries would not be subject to anti-
dumping duties, even though they are in fact causing injury.
388

384 Argentina's first submission, paras. 276-277.
385 Argentina's first submission, paras. 278-287.
386 Vienna Convention on the Law of Treaties, art. 31(1); United States – Standards for Reformulated
and Conventional Gasoline, WT/DS2/AB/R, Report of the Appellate Body adopted 20 May 1996, Sec. III.B.
387 See United States - Import Prohibition of Certain Shrimp and Shrimp Products , WT/DS58/AB/R,
Report of the Appellate Body adopted 6 November 1998, para. 114; Japan - Taxes on Alcoholic Beverages ,
WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, Report of the Appellate Body adopted 1 November 1996,
Sec. G.
388 EC-Pipe Fittings, para. 116.

365. In light of the recognition that imports fr om a group of countries may cumulatively cause
injury even though imports from individual countr ies in this group do not, it would be illogical to
require that sunset reviews be conducted only on a country-specific basis. Such a requirement would
permit anti-dumping duties to expire even though the expiry of the duty would be likely to lead to
continuation or recurrence of injury.

366. Argentina’s arguments in support of its contention that cumulation is prohibited in sunset
reviews are unpersuasive. The one reference in the text of Article 11.3 to “the duty” in the singular is
not conclusive.
389

367. Argentina claims that cumulation is inconsistent with “the object and purpose of the sunset
provision,” which Argentina suggests is the expiry of dumping duties.
390 As a preliminary matter, we
note that the relevant principle of treaty interpretation goes to the object and purpose of the treaty, and
not particular treaty provisions.391 To the extent that the purpose of Article 11.3 is relevant, Argentina
simply misconstrues it. If that purpose were simply to rescind anti-dumping duties, there would be no
need to enquire as to whether expiry of the duty wo uld be likely to lead to continuation or recurrence
of dumping and injury.

368. Argentina seeks to bolster its argument that cumulation is not permitted in sunset reviews by
noting that there is no explicit cross-reference to cumulation or to Article 3.3 in the context of
Article 11.392 This argument has no merit. A cross-refe rence to an obligation is necessary where the
drafters seek to assert a broade r obligation. However, there is no need to cross-reference to a
permissive authority where a right exists absent its limitation in the Agreement.

369. Argentina’s reference to US - German Steel and its suggestion that the Appellate Body
“understands that the injury analysis in a suns et review is not conducted on a cumulated basis” 393 is
entirely unconvincing. The question of whether cu mulation was permitted in sunset reviews was not
before the Appellate Body. In fact, that dispute related entirely to the Commerce role in sunset
reviews.

370. Finally, Argentina overlooks the fact that cumulation in anti-dumping investigations was a
widespread practice among GATT c ontracting parties prior to the adoption of Article 3.3 in the
Uruguay Round, even though the Tokyo Round Anti-Dumping Code was silent on the subject.394

371. In sum, because Article 11.3 is silent on the subject of cumulation, a prohibition on
cumulation in sunset reviews should not be read into Article 11.3.

2. The ITC did not act inconsistently with Article 3.3 of the AD Agreement because
Article 3.3 does not apply to sunset reviews
372. Argentina argues that if Articles 3.3 and 11.3 do not preclude cumulation in sunset reviews,
then the obligations of Article 3.3 apply so as to render the ITC’s cumulative analysis in the Argentina

389 Contrary to Argentina’s assertion in paragraph 282 of its first submission, Article 11.3 does not
refer to “an anti-dumping duty.” Nor does Article 11.3 equate a “duty” with a “measure.”
391 Vienna Convention on the Law of Treaties, Art. 31(1).
394 See, e.g., the GATT Uruguay Round, A Negotiating History (1986-1992), (T. Stewart, Ed.) at 1475-
1478, 1594, and 1598 (Exhibit US-22).

OCTG case inconsistent with the terms of that provision. 395 Argentina’s attempts to read the
requirements of Article 3.3 into Article 11.3 should be rejected.

373. As explained above, the provisions of Article 3 are not applicable to sunset reviews.
Moreover, Argentina’s position is directly at odds with recent panel and Appellate Body reports
construing the meaning of Article 3.3.

374. As the panel in US – Japan Sunset concluded, while AD Agreement Article 3.3 establishes
certain prerequisites for the conduct of a cumulative injury analysis in anti-dumping investigations, it
does not apply to Article 11.3 reviews.396 Article 3.3 provides that:

Where imports of a product from more than one country are simultaneously subject to
anti-dumping investigations, the investigating authorities may cumulatively assess the
effects of such imports only if they determine that (a) the margin of dumping
established in relation to the imports from each country is more than de minimis as
defined in paragraph 8 of Article 5 and the volume of imports from each country is
not negligible and (b) a cumulative assessment of the effects of the imports is
appropriate in light of the conditions of competition between the imported products
and the conditions of competition between the imported products and the like
domestic product.
375. By the plain meaning of Article 3.3’s text – “subject to anti-dumping investigations” – the
limitations on cumulation there imposed apply only to investigations. 397 Article 11 contains no cross-
reference to Article 3 that would render it applicable to Article 11 reviews. Moreover, Article 3 does
not cross-reference Article 11. The lack of similar cross-references with respect to Articles 3 and 11
provide contextual support that Article 3's neglig ibility requirement is inap plicable to Article 11
reviews.398

376. The reference in Article 3.3 to Article 5.8 likewise makes clear that the requirements of
Article 3.3 are inapplicable to Article 11 reviews. The text of Article 5.8 limits its application to
anti-dumping investigations.
399 As the panel recently stated in US – Japan Sunset : “There is . . . no
textual indication in Article 5.8 that would suggest or require that the obligation in Article 5.8 also
applies to sunset reviews. Nor is there any such su ggestion or requirement in the other provisions of
Article 5.”400

377. Moreover, there is no reference in Article 11.3 to Article 5 (in contrast to Article 11’s
reference to Articles 6 and 8). In re versing a panel’s determination that the de minimis threshold
applicable to countervailing duty investigations applied to sunset reviews, the Appellate Body stated:

395 Argentina's first submission, paras. 288-291.
396 US – Japan Sunset, para. 7.102.
397 See US – Japan Sunset, paras. 7.97-7.98.
398 See US – Japan Sunset , paras. 7.95, 7.98; cf., id.. paras. 7.27, 7.68, 7.71 (noting that the lack of
cross-reference in AD Agreement Article 11 to the provisions of Article 5 indicate that the drafters did not
intend for the provision of Article 5 to apply to sunset reviews); US – German Steel , paras. 81 and 105 (noting
the same with respect to the parallel provisions in the SCM Agreement).
399 AD Agreement, Art. 5.8 (“An application under paragraph 1 shall be rejected and an investigation
shall be terminated promptly as soon as the authorities concerned are satisfied that there is not sufficient
evidence of either dumping or of injury to justify proceeding with the case. There shall be immediate
termination in cases where the authorities determine that the margin of dumping is de minimis , or that the
volume of dumped imports, actual or potential, or the injury, is negligible.”) (underline added).
400 US – Japan Sunset, paras. 7.70, 7.103.

[T]he technique of cross-referencing is frequently used in the SCM Agreement. ...
These cross-references suggest to us that, when the negotiators of the SCM
Agreement intended that the disciplines set forth in one provision be applied in
another context, they did so expressly. In light of the many express cross-references
made in the SCM Agreement, we attach significance to the absence of any textual
link between Article 21.3 reviews and the de minimis standard set forth in Article
11.9 [of the SCM Agreement].
401
378. More recently, the panel in US – Japan Sunset rejected Japan’s contention that the
negligibility standard of Article 5.8 applies to Article 11.3 reviews:

[A] textual interpretation of Article 3.3 al lows an examination consistent with our
examination relating to the alleged ap plication to sunset reviews of the de minimis
standard in Article 5.8. That is, on the ba sis of our textual analysis of Article 5 made
in reaching our finding that the de minimis standard of Article 5.8 does not apply to
sunset reviews (supra, para. 7.70), we consider that the text of Article 5 similarly fails
to support the proposition that the negligib ility standard of Article 5.8 applies to
sunset reviews.402
379. In addition, the application of Article 5.8’s negligibility thresholds would be unworkable in
the context of sunset reviews. In sunset revi ews, the investigating authorities are tasked with
determining likely import volumes not only at some point in the future, but also under different
conditions, namely a market without the discipline of an anti-dumping order. Precise numerical
thresholds appropriate for characterization of current import volumes in investigations of current
injury, or immediate threat thereof, are simply not workable for characterizing likely volumes of
dumped imports in determinations of whether injury will continue or recur in the future and under
different conditions. The predictive nature of sunset reviews suggests a need for a flexible standard
for cumulation, rather than the strict numerical negligibility threshold applied in the investigative
phase.

380. In sum, because of the express language of both Articles 3.3 and 5.8, the lack of any cross-
reference in Article 11.3 to Articles 3.3 or 5.8, findings in recent panel and Appellate Body reports,
and the impracticability of applying a strict numerical threshold to likely future import volumes, any
restrictions on cumulation contained in Articles 3. 3 and 5.8, which might arguably otherwise apply,
do not extend to sunset reviews.

M. N
ONE OF THE “MEASURES” IDENTIFIED BY ARGENTINA ARE INCONSISTENT WITH ARTICLE VI
OF THE GATT 1994, ARTICLES 1 OR 18 OF THE AD AGREEMENT, OR ARTICLE XVI:4 OF THE
WTO AGREEMENT
381. In Section IX of its First Submission, Arge ntina claims that the measures identified by
Argentina in its panel request are inconsistent with Article VI of the GATT 1994, Articles 1, 18.1 and
18.4 of the AD Agreement, and Ar ticle XVI:4 of the WTO Agreement. 403 As demonstrated in
Section IV.C.5, above, these dependent claims are not within the Panel’s terms of reference.

401 US – German Steel, AB Report, para. 69.
402 US – Japan Sunset, Panel Report, para. 7.103.
403 Specifically, Argentina refers to “[t]he measures identified . . . in its Panel request, including the
Department’s determination to conduct an expedited review, the Department’s Sunset Determination, the
Commission’s Sunset Determination, the Department’s Determination to Continue the Order, and the relevant
US laws, regulations, policies and procedures ... .” Argentina's first submission, para. 295.

382. In addition, these claims are all dependent claims in that they depend upon a finding of an
inconsistency with an obligation contained in some other provision of the AD Agreement. Because,
as demonstrated above, none of the “measures” identified by Argentina – either in its panel request or
in its first submission – are inconsistent with provisi ons of the AD Agreement, they are, by definition,
not inconsistent with the provisions making up Argentina’s dependent claims. Moreover, with respect
to Argentina’s “as such” claims, as discussed above, to the extent that the “measures” challenged by
Argentina are not “measures” at all or are not “mandatory” measures, there can be no violation of
Article 18.4 of the AD Agreement or Article XVI:4 of the WTO Agreement.

383. Finally, to the extent that any of Argentina’ s dependent claims are base d upon claims that, as
demonstrated in Section IV, above, are not within the Panel’s terms of reference, they must be
rejected.

384. Argentina’s discussion of its dependent claims , however, raises one additional issue; namely,
whether certain Commerce and ITC determinations identified by Argentina as “measures” actually
constitute measures for purposes of the AD Agreement and the DSU. One determination which is
particularly problematic is what Argentina has re ferred to as the “Department’s Determination to
Expedite.”
404 During the consultations, the United States explained to Argentina its position that
while this determination could be challenged in WTO dispute settlement as part of a challenge to a
bona fide measure, the Determination to Expedite itself did not constitute a separately challengeable
measure. When, in its panel request, Argentina pe rsisted in treating this interlocutory determination
as a discrete measure, the United States made its position on this issue clear by means of the following
statement to the DSB:405

This Determination to Expedite - which Arge ntina classified as a "measure" - was in
reality nothing more than a preliminary, interlocutory decision made by a Department
of Commerce official in the course of the sunset review on OCTG from Argentina.
Indeed, as indicated in Argentina's panel request, the so-called "measure" was nothing
more than an internal Commerce Departme nt memorandum deciding to conduct an
expedited review, as opposed to a full sunset review. As such, it was no different
than any of the myriad types of decisions made in the course of an anti-dumping
investigation or review, such as a decision to conduct onsite verification or not,
extend the deadline for a preliminary or final determination, limit the number of
exporters involved, etc., etc. Hundreds, perhaps thousands, of discrete preliminary
decisions went into what eventually became an anti-dumping measure. However,
paragraph 4 of Article 17 of the Anti-Du mping Agreement made clear that only
certain specified types of measures could be the subject of a panel proceeding. These
did not include preliminary decisions. Acco rdingly it was clear that Argentina could
not challenge this "Determination to Expedite" as a measure in its own right.
385. The United States continues to believe that th e Determination to Expedite may be challenged
as part of a challenge to a bona fide anti-dumping measure, but that it is not a measure in its own
right. In the view of the United States, a contrary position would be a recipe for chaos given the vast
number of interlocutory decisions that must be ma de in the course of an anti-dumping proceeding.
Therefore, in its findings, the Pa nel should make clear that the Determination to Expedite is not a
measure.

404 See, e.g., Argentina's first submission, Section VII.C.1, VII.C.4, and para. 295.
405 WT/DSB/M/147, para. 33 (Exhibit US-1).

VII. CONCLUSION
386. Based on the foregoing, the United States respectfully requests that the Panel reject
Argentina’s claims in their entirety.

387. In addition, based on the foregoing, the United States respectfully requests that the Panel
make the following preliminary rulings:

(a) Because page 4 of Argentina’ s panel request fails to conf orm to the requirements of
Article 6.2 of the DSU, the claims set forth on page 4 are not within the Panel’s terms
of reference.
(b) Because Sections B.1, B.2 and B.3 of Argentina’s panel request do not conform to the
requirements of Article 6.2 of the DSU, Argentina’s claims in those sections alleging
inconsistencies with Article 3 and Article 6 of the AD Agreement are not within the
Panel’s terms of reference.
(c) Because the following matters were not incl uded in Argentina’s panel request, they
are not within the Panel’s terms of reference:
(i) Argentina’s claim that Commerce’s sunset review practice, both as such and
as applied, is inconsistent with Article 11.3 of the AD Agreement;
(ii) Argentina’s claim that 19 USC. §§ 1675(c) and 1675(a)(c), the SAA, and the
Sunset Policy Bulletin , taken together, establish an irrefutable presumption
that is inconsistent with Article 11.3 of the AD Agreement
(iii) Argentina’s claim that Commerce’s sunset review practice is inconsistent
with Article X:3(a) of the GATT 1994
(iv) Argentina’s claim that the ITC’s application of 19 USC. §§ 1675a(a)(1) and
(5) in the sunset review of OCTG from Argentina is inconsistent with
Articles 11.3 and 3 of the AD Agreement
(v) Argentina’s claim that the US Measures it has identified are inconsistent with
Article VI of the GATT 1994, Articles 1 and 18 of the AD Agreement, and
Article XVI:4 of the WTO Agreement.

I. INTRODUCTION
1. Argentina regrets that the United States has s ought to divert the attention of the Panel from
the important substantive issues before it by making this unnecessary request for Preliminary Rulings.
Argentina’s Request for Establishment of a Panel
1 is detailed, specific and clear, and complies fully
with Article 6.2 of the DSU.

2. The fact that the United States has put such c onsiderable effort into th is procedural challenge
speaks volumes about the strength of the US case on the merits. The United States claimed in its first
submission that “Argentina has a very weak case.”2 If this were so, the United States would not have
put in such extensive – although unavailing – argumentation on the Panel’s terms of reference. The
United States seeks to eliminate some of Argentin a’s claims through procedural devices in order to
prevent the Panel from adjudicating on the merits. This submission will demonstrate that the US
procedural challenge is baseless and that the Panel should decide the case on the merits.

3. Argentina is also surprised that the United States has chosen this route, particularly in light of
its recent condemnation of such conduct in the Canada Wheat Board dispute. In that case, the United
States asserted before the Panel that:

What Canada is really asking is for this Panel to impose a new requirement on
complaining parties: namely, for the panel request to summarize the arguments to be
presented in the first submission. However, such a requirement is not included in
Article 6.2 of the DSU. Moreover, the Appellate Body in EC Bananas clearly
rejected this notion.
Also, [this idea], if adopted, would result in procedural disputes in each and every
case brought under the DSU. If the panel request has to summarize the complaining
party’s arguments, every subsequent submission of the complaining party would be
subject to challenge that one or more arguments, or sub-arguments, should be
disregarded as being inadequately summarized in the panel request. This process
would not result in any additional fairness or better reports. Instead, it would just
encourage preliminary motions and procedural disputes.
3
4. Argentina agrees fully with the United States that panel requests do not have to “summarize
the arguments to be presented in the first submission,” and shares the US concern that such a process
will not “result in any additional fairness or bett er reports” but will “just encourage preliminary
motions and procedural disputes.”

5. Argentina therefore remains puzzled that in th e present case, the United States has chosen to
disregard the sound advice it offered to the Canada Wheat Board Panel.

6. That said, Argentina will respond fully to th e allegations made by the United States in its
Request for Preliminary Rulings. Argentina w ill begin by briefly highlighting some of the

 1 Request for Establishment of a Panel by Argentina, United States – Sunset Reviews of Anti-Dumping
Measures on Oil Country Tubular Goods from Argentina , WT/DS268/2 (3 April 2003) (“Argentina’s Panel
Request”).
2 US first submission, para. 3.
 3 Oral Statement of the United States at the First Panel Meeting, Canada – Measures Relating to
Exports of Wheat and Treatment of Imported Grain , WT/DS276 (6 June 2003) paras. 3 and 4. Available from
the web site of the United States Trade Representative: www.ustr.gov.

jurisprudence that should guide the Panel in its in terpretation of Article 6.2. Argentina will then
respond specifically to the three categories of allegati ons 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 States asserts were not included in Argentina’s Panel Request.

7. Argentina also notes at the outset that the United States bears the burden of proving that
Argentina’s Panel Request does no t comply with DSU Article 6.2. 4 As Argentina will argue below,
the United States has failed to discharge this burden in the present case.

II. DSU ARTICLE 6.2
8. Article 6.2 of the DSU provides in part as follows:

The request for the establishment of a panel shall be made in writing. It shall indicate
whether consultations were held, identify the specific measures at issue and provide a
brief summary of the legal basis of the co mplaint sufficient to present the problem
clearly.
9. As noted by the Appellate Body in the Korea – Dairy case:

When parsed into its constituent parts, Article 6.2 may be seen to impose the
following requirements. The request must: (i) be in writing; (ii) indicate whether
consultations were held; (iii) identify the specific measures at issue; and (iv) provide
a brief summary of the legal basis of the complaint sufficient to present the problem
clearly.
5
10. The United States has challenged Argentina’s compliance with the thir d and fourth of these
requirements, i.e. to “identify the specific measures at issue,” and to “provide a brief summary of the
legal basis of the complaint sufficient to present the problem clearly.”

11. As noted in the US first submission, the Appellate Body recently summarized the purpose of
the terms of reference in WTO disputes. As it stated in the Steel from Germany appeal:

The requirements of precision in the requ est for the establishment of a panel flow
from the two essential purposes of the term s of reference. First, the terms of
reference define the scope of the dispute. Secondly, the terms of reference, and the
request for the establishment of a pane l on which they are based, serve the due

4 As the Appellate Body stated in Wool Shirts and Blouses:

[W]e find it difficult, indeed, to see how any system of judicial settlement could work if it
incorporated the proposition that the mere assertion of a claim might amount to proof. It is,
thus, hardly surprising that various international tribunals, including the International Court of
Justice, have generally and consistently accepted and applied the rule that the party who
asserts a fact, whether the claimant or the respondent, is responsible for providing proof
thereof. Also, it is a generally-accepted canon of evidence in civil law, common law and, in
fact, most jurisdictions, that the burden of proof rests upon the party, whether complaining or
defending, who asserts the affirmative of a particular claim or defence.

Appellate Body Report, United States – Measure Affecting Imports of Woven Wool Shirts and Blouses
from India, WT/DS33/AB/R, adopted 23 May 1997, p. 14.

5 Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of Certain Dairy
Products, WT/DS98/AB/R, adopted 12 January 2000, para. 120 (“Korea – Dairy”).

process objective of notifying the parties an d third parties of the nature of a
complainant's case.

Moreover, compliance with the requirements of Article 6.2 must be determined on
the merits of each case, having considered the panel request as a whole, and in the
light of attendant circumstances.
6
12. The jurisprudence has also made clear that the key “attendant circumstance” that must be
considered in determining whether the requirements of Article 6.2 have been met is whether the
defending party can demonstrate to the panel that it has suffered prejudice during the course of the
panel proceedings. This will be discussed in greater detail below.

13. Therefore, before proceeding to the more specif ic elements of Article 6.2, it is worthwhile to
summarize the general principles of Article 6.2 as enunciated by the Appellate Body:

the terms of reference serv e the due process objective of providing notice to the
defending party and the third parties of th e 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;
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; and
compliance must be assessed in the light of “attendant circumstances,” including
actual prejudice to the defendant during the course of the panel proceedings.
14. With these general observations in mind, Argentina now turns to the specific arguments
raised by the United States in the present case.

III. ARGENTINA’S “PAGE FOUR” CLAIMS ARE WITHIN THE PANEL’S TERMS OF
REFERENCE
A. US COMPLAINT
15. The United States first alleges that page four of Argentina’s Panel Request (“Page Four”) fails
(i) to identify the specific measures at issue, (ii) to identify the legal basis for the complaint, and
(iii) to provide a narrative description of the legal basis of the complaint. 7 As a result, the United
States argues, Page Four does not comply with the requirement under Article 6.2 of the DSU to
“present the problem clearly.”

 6 Appellate Body Report, United States – Countervailing Duties on Certain Corrosion-Resistant
Carbon Steel Flat Products from Germany , WT/DS213/AB/R, adopted 19 December 2002, paras. 126 and 127
(“Steel from Germany”).
7 US First Submission, para. 87. More specifically, with respect to the alleged failure to identify the
specific measures at issue, the United States argues that, “in the first paragraph on Page 4, while Argentina
identifies five discrete ‘measures,’ it asserts that it is challenging only ‘certain aspects’ of those five ‘measures,’
and then fails to identify what those ‘certain aspects’ are.” Id. With respect to the alleged failure to identify the
legal basis for the complaint, the United States argues that, “in the second paragraph on Page 4, Argentina
indiscriminately lumps together various articles from three different WTO agreements, almost all of which
consist of multiple paragraphs and contain multiple obligations.” Id.

B. RELEVANT WTO JURISPRUDENCE
1. Identification of measures
16. The Appellate Body made clear in the EC – Computer Equipment case that whether a panel
request adequately “identifies the specific measure at issue” depends on whether it satisfies the due
process requirements of Article 6.2. Argentina quotes the relevant portion of that decision below:

Whether these terms [(“LAN equipment” and “PCs with multimedia capacity,” which
were included in the Panel request)] are sufficiently precise to “identify the specific
measure at issue” under Article 6.2 of the DSU depends, in our view, upon whether
they satisfy the purposes of the requirements of that provision.
In European Communities – Bananas, we stated that:
It is important that a panel request be sufficiently precise for two
reasons: first, it often forms the basis for the terms of reference of
the panel pursuant to Article 7 of the DSU; and, second, it informs
the defending party and the third parties of the legal basis of the
complaint.
The European Communities argues that the lack of precision of the term, LAN
equipment, resulted in a violation of its ri ght to due process which is implicit in the
DSU . . . We . . . note that the term, LAN equipment, was used in the consultations
between the European Communities and the United States prior to the submission of
the request for the establishment of a panel . . . . We do not see how the alleged lack
of precision of the terms, LAN equipment and PCs with multimedia capability, in the
request for the establishment of a panel affected the rights of defence of the European
Communities in the course of the panel proceedings. As the ability of the European
Communities to defend itself was not prejudiced by a lack of knowing the measures
at issue, we do not believe that the fundamental rule of due process was violated by
the Panel.8
17. This ruling has been followed in a number of cases, including most recently, in the
Preliminary Ruling in the Canada Wheat Board case, where the Panel stated:

In considering whether a panel request can be said to have identified the specific, or
precise, measures at issue, we find releva nt the statement by the Appellate Body [in
the EC – Computer Equipment case] that whether the actual terms used in a panel
request to identify the measures at issu e are sufficiently precise to meet the
requirements of Article 6.2 “depends . . . upon whether they satisfy the purposes of
[those] requirements”. We also find relevant the statement by the Appellate Body
that “compliance with the requirements of Article 6.2 must be determined on the
merits of each case, having considered the panel request as a whole, and in the light
of attendant circumstances.”

8 Appellate Body Report, European Communities – Customs Classification of Certain Computer
Equipment, WT/DS62, 67, 68/AB/R, adopted 22 June 1998, paras. 68-70 (“ EC – Computer Equipment ”)(first
and third emphasis added). This has been followed in other cases, including Canada Aircraft II: Panel Report,
Canada – Export Credits and Loan Guarantees for Regional Aircraft, WT/DS222/R, adopted 19 February 2002.

Whether sufficient information is provided on the face of the panel request will
depend, as noted above, on whether the information provided serves the purposes of
Article 6.2, and in particul ar its due process objective, as well as the specific
circumstances of each case, including the type of measure that is at issue.
9
18. Thus, in assessing whether Argentina’s Pa nel Request adequately identified the specific
measures at issue, the Panel must evaluate the fundamental underlying issue of whether the request
satisfies the due process objective of Article 6.2. In this regard, the Panel must consider whether the
specific formulation used by Argentina on Page Four of its panel request, when that document is read
as a whole, caused actual prejudice to the United States during the course of the Panel proceedings.
This issue will be examined in greater detail below.

2. Identification of the legal basis of the complaint
(a) Claims versus Arguments
19. WTO jurisprudence establishes that a request for the establishment of a panel must set out
claims
, rather than the arguments in support of those claims. In EC – Bananas , the Appellate Body
upheld this principle in unambiguous terms:

We accept the Panel's view that it was suff icient for the Complaining Parties to list
the provisions of the specific agreements alleged to have been violated without
setting out detailed arguments as to which sp ecific aspects of the measures at issue
relate to which specific provisions of t hose agreements. In our view, there is a
significant difference between the claims identified in the request for the
establishment of a panel, which establish the panel's terms of reference under Article
7 of the DSU, and the arguments supporting those claims, which are set out and
progressively clarified in the first written submissions, the rebuttal submissions and
the first and second panel meetings with the parties.10
20. Thus, to comply with Article 6.2 of the DSU, a complaining party need only “list the
provisions of the specific agreements alleged to have been violated.” There is no obligation to set out
“detailed arguments as to which specific aspects of the measures at issue relate to which specific
provisions of those agreements.”
11 Argentina’s Panel Request provides the detail required by Article
6.2. As the United States is well aware, there is no need for Argentina to develop the arguments that
support the claims identified in its panel request.

(b) Minimum Requirements
21. The Appellate Body in the Korea – Dairy case affirmed this principle. Commenting on its
earlier ruling on this issue in EC – Bananas, the Appellate Body in Korea – Dairy noted that it:

[A]greed with the conclusion of the panel th at, in that case, the listing of the articles
of the agreements claimed to have been violated satisfied the minimum requirements
of Article 6.2 of the DSU. In view of all the circumstances surrounding that case, we

9 Canada – Measures Relating to Exports of Wheat and Treatment of Imported Grain: Preliminary
Ruling by the Panel, WT/DS276/12 (21 July 2003) paras. 17 and 20.
 10 Appellate Body Report, European Communities – Regime for the Importation, Sale and Distribution
of Bananas, WT/DS27/AB/R, adopted 25 September 1997, para. 141 (“ EC – Bananas ”). This test has been
applied in many subsequent WTO cases.
11 Id.

concurred with the panel that the European Communities had not been misled as to
what claims were in fact being asserted against it as respondent.12
22. The Appellate Body added, in a passage also quoted by the United States in its first
submission, that:

There may be situations where the simple lis ting of the articles of the agreement or
agreements involved may, in the light of attendant circumstances, suffice to meet the
standard of clarity in the statement of the legal ba sis of the complaint. However,
there may also be situations in which the circumstances are such that the mere listing
of treaty articles would not satisfy the standa rd of Article 6.2. This may be the case,
for instance, where the articles listed estab lish not one single, distinct obligation, but
rather multiple obligations. In such a situation, the listing of articles of an agreement,
in and of itself, may fall short of the standard of Article 6.2.
13
23. The Appellate Body in Korea – Dairy concluded that:

[W]hether the mere listing of the articles claimed to have been violated meets the
standard of Article 6.2 must be examined on a case-by-case basis. In resolving that
question, we take into account whether the ability of the respondent to defend itself
was prejudiced, given the actual course of the panel proceedings, by the fact that the
panel request simply listed the provisions claimed to have been violated.
 14
24. Therefore, even the “mere listing” of the provision claimed to have been violated can satisfy
the “minimum prerequisite” of Article 6.2. The “m ere listing” will be consider ed to be insufficient
only in cases where the defending party is able to demonstrate to the Panel that it has suffered actual
prejudice during the course of the panel proceedings. In this case, when Argentina’s Panel Request is
read as a whole, it is clear that Argentina did far more than merely list provisions.

(c) Prejudice to the Defending Party
25. Moreover, even if the Article cited in the panel request contains multiple obligations, the
mere listing of such an Article will still meet the requirem ents of Article 6.2, absent actual prejudice .
Even in the Korea – Dairy case, where the Appellate Body found that the EC panel request should
have been more detailed, it denied Korea’s request under Article 6.2:

Korea failed to demonstrate to us that the mere listing of the articles asserted to have
been violated has prejudiced its ability to defend itself in the course of the Panel
proceedings. Korea did assert that it had sustained prejudice, but offered no
supporting particulars in its appellant's submission nor at the oral hearing. We,
therefore, deny Korea's appeal relating to the consistency of the European
Communities’ request for the establishment of a panel with Article 6.2 of the DSU.
15

12 Appellate Body Report, Korea – Dairy, para. 123.
13 Id. at para. 124.
 15 Id. at para. 131 (emphasis added). The Korea – Dairy report is of particular relevance since the
complaining party in that case invoked Articles that had contained multiple obligations. As noted by the
Appellate Body:
[W]e note that the European Communities’ request for a panel, after identifying the Korean
safeguard measure at issue, listed Articles 2, 4, 5 and 12 of the Agreement on Safeguards and

26. The EC – Bed Linen panel summarized the WTO case law as follows:

It seems that even if the panel request is insufficient on its face, an allegation that the
requirements of Article 6.2 of the DSU are not met will not prevail where no
prejudice is established.
In essence, the Appellate Body seems to set a two-stage test to determine the
sufficiency of a panel request under Article 6.2 of the DSU: first, examination of the
text of the request for establishment itself, in light of the nature of the legal provisions
in question; second, an assessment of whether the respondent has been prejudiced by
the formulation of claims in the request for establishment, given the actual course of
the panel proceedings.
16
27. The requirement that the defending party must demonstrate actual prejudice has been upheld
in numerous cases, and is recognized by the United States. The US statement in the Canada Wheat
Board case asserted this point vigorously:

[T]he Appellate Body in EC – Bananas made clear that a panel request may
adequately state a claim if the request si mply cites the pertinent provision of the
WTO agreement.
The Appellate Body confirmed this construction in Korea – Dairy . The Appellate
Body did find a problem with the panel requ est: namely, the request cited too broadly
to the Agreement on Safeguards and Article XIX of the GATT 1994, so that it was
difficult to determine which ob ligations in those provisions were at issue. But, the
Appellate Body repeated the distinction, set forth in Bananas, between claims and
arguments. And, even though the panel request in Korea – Dairy was insufficiently
precise, the Appellate Body nonetheless did not dismiss the claims . . . .
[E]ven if a panel request is insufficiently detailed “to present the problem clearly,” the
panel is not automatically deprived of juri sdiction 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. In Korea – Dairy,

Article XIX of the GATT 1994. Article XIX of the GATT 1994 has three sections and a total
of five paragraphs, each of which has at least one distinct obligation. Articles 2, 4, 5 and 12 of
the Agreement on Safeguards also have multiple paragraphs, most of which have at least one
distinct obligation. The Agreement on Safeguards in fact addresses a complex multi-phased
process from the initiation of an investigation, through evaluation of a number of factors,
determination of serious injury and causation thereof, to the adoption of a definitive safeguard
measure.

 Id. at para. 129. The Panel request was nevertheless found to be consistent with DSU Article 6.2
because, as noted above, Korea could not establish actual prejudice. Id. at para. 131. The US – Lamb
Safeguards panel, commenting on the Appellate Body decision in Korea – Dairy , noted that: “the Appellate
Body identified these provisions [in the Safeguards Agreement] as an example of a situation in which the mere
listing of articles, in and of itself, may fall short of the standard of DSU Article 6.2 (which seems to imply that it
may suffice in other situations).” Panel Report, United States – Safeguard Measures on Imports of Fresh,
Chilled or Frozen Lamb Meat from New Zealand and Australia , WT/DS177,178/R, adopted 16 May 2001,
para. 5.27 (“US – Lamb Safeguards”).

 16 Panel Report, European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen
from India, WT/DS141/R, adopted 12 March 2001, paras. 6.25-6.26 (“EC – Bed Linen”)(emphasis added).

the Appellate Body found that even althou gh the panel request was inadequate, the
responding party had failed to show prejudice, and dismissal was not warranted.17
28. Thus, as the United States itself correctly recognizes, a defending party must demonstrate
actual prejudice during the course of the panel proceedings as a prerequisite to successfully challenge
a panel request under DSU Article 6.2.

29. Moreover, as the Party asserting the DSU Article 6.2 claim, the United States has the burden
of demonstrating that it suffered prejudice in this case because it was unable to defend its interest.
The United States has failed to discharge this burden.

3. Narrative description
30. Despite US claims to the contrary, Article 6.2 does not require a “narrative description.”
Rather, as noted above, Article 6. 2 requires identification of the me asure, as well as a brief summary
of the legal basis of the complaint, sufficient to present the problem clearly. Where the complaining
party included a narrative description in its pane l request, however, the panel has in some cases
considered that description to be relevant in determining whether a complaining party has met the
obligations covered by Article 6.2.

31. For example, the High Fructose Corn Syrup Panel considered the fact that the Panel request
set forth sufficient factual background as to the nature of the dispute:

The United States’ request for establishment in this case does not merely list the
articles alleged to have been violated. The request also sets forth facts and
circumstances describing the substance of the dispute. In our view, the request is
sufficiently detailed to set forth the legal ba sis of the complaint so as to inform the
defending Member, Mexico, and potential th ird parties of the claims made by the
United States.
We find that Mexico has not demonstrated to us that it was prejudiced in its ability to
defend its interests in the course of the proceedings in this dispute. Mexico asserts
that it had to wait until the first written submission of the United States, more than
four months after the request for establis hment, to have a clear idea of what the
United States’ arguments in support of its assertions were. Mexico argues that as a
result of the failure of the United States to present the problem clearly and specify the
factual and legal basis for the request, it was obliged to spend that time working “in
the dark”. In its comments on interim review, Mexico asserts that this resulted in the
expenditure or squandering of resources that could otherwise have been devoted to
preparing a timely defence.
In our view, the totality of the United States’ request for establishment sets out claims
with sufficient specificity to present the problem clearly and allow Mexico to defend
its interests. Mexico’s asser tions as to the effect of th e alleged inadequacies in the
request for establishment do not, in our view , rise to the level of demonstrating that
Mexico’s rights of defense in this panel proceeding were affected, given the actual
course of the panel proceedings.18

 17 Oral Statement of the United States at the First Panel Meeting, Canada – Measures Relating to
Exports of Wheat and Treatment of Imported Grain, WT/DS276 (6 June 2003), paras. 6-8.
 18 Panel Report, Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the
United States, WT/DS132/R, adopted 24 February 2000, paras. 7.15-7.17 (“High Fructose Corn Syrup”).

32. Thus, the complaining party may point to the existence of a narrative description in a panel
request to counter claims that a defending party has been prejudiced.

C. T
HE CHALLENGED MEASURES AND THE LEGAL BASIS OF ARGENTINA’S COMPLAINT HAVE
BEEN ADEQUATELY IDENTIFIED
33. As an initial observation, Argentina notes that the US laws, regulations, policies and
procedures identified in its panel request are limi ted, specific, and identified with precision.
Argentina has referred to the provisions of the US statutory, regulatory and administrative regime –
including the US practice – that deal with suns et reviews in antidumping cases, which together
represent a small subset of US trade remedy laws, regulations and administrative procedures.

34. With respect to the requirement to “identify the specific measure at issue,” the Canada Wheat
Board case is instructive, in that it sets out the stan dard as to when a measure will not be considered
as adequately identified. It is thus useful to consider Argentin a’s Panel Request in light of the
Canada Wheat Board standard.

35. In Canada Wheat Board , the US panel request used such formulations as “the laws,
regulations, and actions of the Government of Ca nada and the [Canadian Wheat Board] related to
exports of wheat.”
19 The Panel found that this formulation fe ll short of the standard set out in Article
6.2, since the US request, “by creating considerable uncertainty as to the identity, number and content
of the laws and regulations which it [was] challeng ing, [did] not provide adequate information on its
face to identify the specific measures at issue.” 20 Therefore, the US panel request left the defending
party “little choice . . . but to undertake legal research and exercise judgement in order to establish the
precise identity of the laws and regula tions implicated by the panel request.” 21 The Canada Wheat
Board Panel therefore concluded that, “taken as a whole, the United States’ panel request [did] not
sufficiently establish the identity of the ‘laws’ and ‘regulations’ at issue . . . .”22

36. In contrast to the vague references to “laws and regulations related to exports of wheat” that
were found to be insufficient in the Canada Wheat Board panel request, Page Four of Argentina’s
Panel Request precisely identifies the US measures at issue, specifically enumerating:

• Sections 751(c) and 752 of the Tariff Act of 1930, as amended, codified at
Title 19 of the United States Code §§ 1675(c) and 1675a; and the US Statement of
Administrative Action (regarding the Agreement on Implementation of GATT Article
VI) accompanying the Uruguay Round Agreem ents Act (the SAA), H.R. Doc. No.
103-316, vol. 1;
• The Department's Policies Regarding the Conduct of Five-year ("Sunset")
Reviews of Anti-Dumping and Countervailing Duty Orders ; Policy Bulletin, 63
Federal Register 18871 (16 April 1998) (Sunset Policy Bulletin);
• The Department's sunset re view regulations, codified at Title 19 of the United
States Code of Federal Regulations § 351.218; and the Commission's sunset review

19 Canada – Measures Relating to Exports of Wheat and Treatment of Imported Grain: Preliminary
Ruling by the Panel, WT/DS276/12 (21 July 2003), para. 7.
20 Id. at para. 24.
21 Id. Canada had argued that “any number of laws, regulations and actions may be related to the
export of wheat but have no relevance to the instant claim.” Id. at para. 8. It said that there were “dozens of
‘laws and regulations’ that could be the subject of the United States panel request as worded.” Id.
22 Id. at para. 28.

regulations, codified at Title 19 of the United States Code of Federal Regulations §§
207.60-69 (Subpart F).23
37. Given this degree of precision, one may safely conclude that the United States has no need to
“undertake legal research” or “exercise judgment” to establish the “precise identity of the laws and
regulations implicated by the panel request.”

38. Moreover, as noted above, the Appellate Body ha s made clear that the panel request has to be
read “as a whole.” The New Oxford Dictionary of English defines “whole” as “all of; entire.” This
means that the Panel needs to read “all of” Argentina’s Panel Request (i.e., the “entire” panel request),
and cannot focus exclusively on Page Four or on the use of the word “also.”

1. Argentina’s Panel Request must be read as a whole
39. Page Four of Argentina’s Pa nel Request cannot be read in isolation from the more specific
claims enumerated in Sections A and B. As th e United States acknowledged, Argentina made this
clear at the DSB meeting of 19 May 2003.
24

40. Instead of divorcing Page Four from the rest of the request, the panel needs to consider the
document in its entirety – the factual description, th e specific claims set out in Sections A and B, and
the concluding sections on Page Four. Together, they present the entirety of Argentina’s claims.
Read as a whole, Argentina’s Panel Request properly identifies the specific US measures at issue.

41. The US claim appears to hinge largely on the use of the word “also” on Page Four, which,
according to the United States, suggests that the WTO inconsistencies alluded to on Page Four are in
addition to, and different from, the claims set forth in Section A and B.25

42. Three points should be noted here. First, according to Webster’s Collegiate Dictionary, the
word “also” means, among other things, “likewise, ” which in turn means “in a like manner.” Put
more succinctly, the word “also” is synonymous with the term “moreover.” Thus, Argentina used the
word “also” on Page Four to convey that it was el aborating on previous pages, rather than, as the
United States alleges, describing something different than what was enumerated on the previous pages
of the panel request. 26 Second, it is important to consider the context in which the word “also”
appeared. The request said “Argentina also consid ers” that certain US laws are WTO-inconsistent,
not that Argentina considers that “certain US laws are also WTO-inconsistent.” In other words, even
if one accepted the US request to read Page Four in isolation of the rest of the panel request, the word
“also” (which means “likewise/moreover”) related to the views of Argentina, rather than to the
enumeration of a completely new set of measures. Third, Argentina’s reference to US laws in that
sentence was not completely open-ended, as the United States suggests, but rather was immediately
qualified by the term “related to the determinations of the Department and the Commission.”
Argentina describes the “determinations of the Department and the Commission” in detail throughout
the panel request – in the introductory factual section, in Sections A and B, and on Page Four.

23 Argentina’s Panel Request, Page Four.
24 US first submission, para. 101.
25 US first submission, para. 88 and at n.103.
26 Argentina confirmed this in its statement before the DSB at the 19 May 2003, meeting: “It was
Argentina’s intention (as the panel request clearly provided) to set forth the particular claims in the paragraphs
contained in Sections A and B of the document.” Dispute Settlement Body: Minutes of Meeting held on
19 May 2003, WT/DSB/M/150, para. 32. Thus, Sections A and B contain the essence of Argentina’s claims.
Because Argentina’s Panel Request must be read as a whole, however, Sections A and B cannot be interpreted
independently from Page Four. Accordingly, Page Four of the panel request elaborates on the claims provided
in Sections A and B, as indicated by the word “also.”

43. Read “as a whole,” Argentina’s Panel Request thus identified the US m easures at issue with
specificity, including those enumerated on Page Four.

44. Equally important, the United States has not sustained any prejudice. In fact, in crafting its
preliminary objection, the United States turns the principle of DSU Article 6.2 on its head. Indeed,
rather than reading Argentina’s Panel Request as a whole, as the Appellate Body indicated is a
requirement, the United States artificially severs Page Four of Argentina’s request, parses the isolated
language on Page Four, and then contends that in this context the United States cannot discern the
nature of the particular claims on Page Four. Th e US position is untenable. Considering the panel
request as a whole, it is quite clear which violat ions are being alleged by Argentina. Indeed,
Argentina has set out the WTO-inconsistencies with precision.

2. A full narrative description, while not required, has been provided
45. Argentina recalls that Article 6.2 does not specifically require a “narrative description.”
Nonetheless, as in High Fructose Corn Syrup , Argentina’s Panel Request, read as a whole, sets out
detailed factual background as to the nature of the di spute. The first part of the panel request sets out
the facts such as the conclusions from the original investigation, the conclusions of the sunset review,
the determination to expedite, and th e determination to continue the order. The request also includes
reference to determinations of the US Departme nt of Commerce and the US International Trade
Commission. Argentina’s request “does not merely list the articles alleged to have been violated. The
request also sets forth facts and circumstances describing the substance of the dispute. ”
27
Consequently, as in High Fructose Corn Syrup , the “request is sufficiently detailed to set forth the
legal basis of the complaint so as to inform the de fending Member . . . and potential third parties of
the claims made . . . .”28

3. The United States has not suffered prejudice during the course of the panel proceedings
46. Although the “no prejudice” issue first arises in the context of the US complaints about Page
Four, the failure of the United States to substantiate prejudice undermines all of its claims under
Article 6.2. Therefore, Argentina’s comments be low apply to all aspects of the US Preliminary
Request.

47. As noted above, the EC – Bed Linen panel provided a succinct summary of the requirement
under Article 6.2 to demonstrate prejudice: “an alle gation that the requirements of Article 6.2 of the
DSU are not met will not prevail where no prejudice is established.”
29

48. Moreover, it should be recalled that the test applied by the Appellate Body under Article 6.2
includes an assessment as to whether the responding pa rty was prejudiced “given the actual course of
the panel proceedings.” 30 The “panel proceedings” in the present case have barely begun – indeed,
the first meeting of the panel with the parties has not even taken place.

49. Prior Panels have rightly determined that whether there is prejudice during the panel
proceedings can only be determined at the end of such proceedings. For example, this was the
position taken by the Panel in Canada Aircraft:

27 Panel Report, High Fructose Corn Syrup, para. 7.15 (emphasis added).
28 Id.
29 Panel Report, EC – Bed Linen, para. 6.25 (emphasis added).
30 Id. at para. 6.26.

Canada asked the Panel to rule on th e consistency of Brazil’s request for
establishment with Article 6.2 of the DSU pr ior to the deadline for the parties’ first
written submissions. We recall our finding that there is no requirement in the DSU
for panels to rule on preliminary issues prio r to the parties’ first written submissions.
Nor is there any established practice to this effect, for there are numerous panel
reports where rulings on preliminary issues ha ve been reserved until the final report.
Furthermore, we have stated above that we will decide this preliminary issue by
determining whether any alleged imprecision in Brazil’s request for establishment
prejudiced Canada’s due process right of defence during the panel process. We can
necessarily only undertake such an analysis at the end of the panel process.31
50. A similar ruling was made by the Panel in Thailand H-Beams. In that case, Thailand raised
its Article 6.2 claim in its first written submission, just at the United States did in the present case. As
in Canada Aircraft, the Thailand H-Beams Panel said that it was too soon to determine whether the
defending party had suffered prejudice during the panel proceedings:

At the first substantive meeting, we denied Thailand’s request for an immediate
preliminary ruling . . . and indicated that we would issue our ruling and supporting
reasons in the Panel report. Referring to the Appellate Body report in Korea – Dairy,
we informed the parties that we would evaluate whether, given the actual course of
the Panel proceedings , Thailand was prejudiced in its ability to defend itself by the
alleged lack of specificity of the Panel request.32
51. Regardless of when any determination of prej udice should be made, the more important point
is that the United States has failed to substantiate any prejudice actually sustained by the
United States.

52. Indeed, it is striking that in the extremel y long US submission on the panel’s terms of
reference, the United States offers nothing more than a few curt statements that simply assert, but do
not substantiate, a claim of prejudice.

53. The United States is evidently aware that its inability to demonstrate actual prejudice is a
major – indeed fatal – weakness in its Article 6.2 re quest. The United States would seemingly prefer
that the Panel ignore or skim over the lack of prejudice in this case. Unfortunately for the US
position, the Appellate Body has made clear that ac tual prejudice is a prer equisite to a successful
challenge to a panel request under Article 6.2.

54. How has the United States “substantiated” its claim of prejudice? The United States argues
only that its “ability . . . to begin preparing its defense was delayed because, due to Argentina’s failure
to comply with Article 6.2, the United States did not ‘know what case it has to answer.’”
33

55. The cases have ruled that such asserti ons simply do not constitute demonstrated or
substantiated prejudice for the purposes of DSU Article 6.2. For example, as the High Fructose Corn
Syrup decision stated, complaints about having to “spend time working in the dark” are insufficient to
establish a violation of DSU Article 6.2. 34 Instead, the actual prejudice that must be shown must rise

 31 Panel Report, Canada – Measures Affecting the Export of Civilian Aircraft , WT/DS70/R, adopted
20 August 1999, para. 9.33 (emphasis added).
 32 Panel Report, Thailand – Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy
Steel and H-Beams from Poland , WT/DS122/R, adopted 5 April 2001, paragraph 7.1 (“ Thailand – H-Beams ”)
(second emphasis added).
33 US First Submission, paras. 97 and 110.
34 Panel Report, High Fructose Corn Syrup, para. 7.16.

to the level of a violation of due process rights , as the Appellate Body in EC – Computer Equipment
made clear.
35

56. Moreover, a review of the US first submission confirms that in no way have the “due process
rights” of the United States been violated. Th e United States has provided detailed (albeit
unconvincing) argumentation on the full range of clai ms, demonstrating clearly that the United States
is fully aware of Argentina’s claims, and has responded substantively to them.

57. Prior panels have found that such substantive submissions fully refute any claim that the
defending party was “prejudiced.” In US – Lamb Safeguards, the Panel found that:

[T]he US first written submission and its oral statement at the first substantive
meeting contain detailed and comprehensive arguments rebutting the complainants'
arguments on all claims . . . .

In its answers to questions and in its re buttal submission, the United States again
provided very detailed and comprehensive arguments on the claims before us.
In light of the foregoing, therefore, we do not believe that the United States has
submitted sufficient “supporting particulars” to persuade us of its assertion that it has
been prejudiced in its ability to defend itself in the actual course of the proceedings in
this dispute. As noted above, as a matter of fact, the US submissions have been very
thorough and detailed. . . . Our conclusion that the United States has not submitted
sufficient supporting particulars to establish that it suffered prejudice in its ability to
defend itself in the actual course of this proceeding confirms our above consideration
that the panel requests in this case were sufficiently specific to meet the requirements
of DSU Article 6.2.36
58. The Korea Beef Panel reached a similar conclusion:

After reviewing Korea’s submissions, its an swers to the parties’ as well as to the
Panel’s questions during the course of the present proceedings, the Panel remains of
the opinion that Korea clearly understood the matter at issue. The Panel considers
that Korea was not misled by the requests for establishment of panels . . . .37
59. As in US – Lamb Safeguards , the United States in the present case has provided “very
detailed and comprehensive arguments” to respond to Argentina’s claims. As with the submissions in
Korea Beef , the US first submission in this case also shows that the United States has “clearly
understood the matters at issue” and it has “not been misled” by Argentina’s Panel Request.

60. The “thorough and detailed” substantive response submitted by the United States in its first
submission negates any notion of actual prejudice to the United States. The Panel should have little
difficulty concluding that the United States has not demonstrated sufficient “supporting particulars” to
prove its assertion that it has been prejudiced in its ability to defend itself.

35 Appellate Body Report, EC – Computer Equipment, para. 70.
 36 Panel Report, US – Lamb Safeguards, paras. 5.51-5.53.
 37 Panel Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef ,
WT/DS161,169/R, adopted 10 January 2001, para. 816 (“Korea – Beef”).

61. 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. For example, in Thailand H-
Beams, the Appellate Body said that “those Members of the WTO who intend to participate as third
parties in panel proceedings must be inform ed of the legal basis of the complaint.” 38 Similarly, in EC
– Bed Linen , the Panel found that the fact that the th ird parties were able to make substantive
submissions on the issues “suggests a lack of prejudice to third parties’ interests in this dispute.” 39

62. In the present case, none of the Third Parties raised any concerns about any aspects of
Argentina’s claims. Indeed, the European Communities, 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 to consider page 4 . . . in isolation from the rest of the request. Rather, in
order to establish whether the cond itions of Article 6.2 DSU are met, the Panel should consider the
request as a whole.”40 Thus, to paraphrase the Appellate Body in Thailand H-Beams, the EC, which
is participating as a third party in the panel proceedings, obviously was informed of the legal basis of
Argentina’s complaint.

63. Argentina also notes that this case is just one of a series of challenges made by various WTO
Members to the “sunset review” provisions of US law. Argentina does not assert that these other
disputes can be used to determine whether the current panel request complies with Article 6.2. But it
does raise a broad and important point: the United States has been engaged in a series of WTO
disputes over its sunset review laws, and is intimately familiar with all lines of challenge, and all lines
of defense. To accept that the United States wa s “working in the dark” while waiting for Argentina’s
submission is simply not credible.

64. In summary, the United States has “assert[ed] that it had sustained prejudice, but [has] offered
no supporting particulars . . . .”
41 Consequently, the US request fails to demonstrate any prejudice, let
alone prejudice that has violated the due process rights of the United States in these proceedings.

38 Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes and Sections of Iron or
Non-Alloy Steel and H-Beams from Poland, WT/DS122/AB/R, adopted 5 April 2001, para. 88 (“Thailand – H-
Beams”).
 39 Panel Report, EC – Bed Linen, para. 6.28:
We therefore turn next to the question whether the European Communities, or any of the third
parties, has been prejudiced by this lack of sufficient clarity, “given the actual course of the
panel proceedings”. . . . [W]hile it is possible that potential third parties were not alerted to
the fact that India intended to pursue the issue of consideration of all imports as dumped under
Article 3.4 of the AD Agreement, it was clear from the face of the request for establishment
that India was pursuing this issue under Article 3.5 of that Agreement. Moreover, all three
third parties did address the issue of whether the European Communities acted inconsistently
with the AD Agreement in considering all imports as dumped. In our view, this suggests a
lack of prejudice to third parties’ interests in this dispute. While it is not clear whether
potential third parties understood the claim to be asserted under Article 3.4 or Article 3.5, the
substance of the issue was clearly apparent to them, and was addressed by those Members that
participated as third parties. The specific provision of the AD Agreement alleged to have
been violated is, in our view, of less importance than the question whether the particular
practice, consideration of all imports as dumped, is permitted by the AD Agreement or not,
and that question has clearly been addressed by all parties and third parties in this dispute, and
was clearly put before us by the request for establishment.

40 Third Party Submission of the European Communities, WT/DS268 (14 November 2003), Section 2.
41 Appellate Body Report, Korea – Dairy, para. 131.

65. The inability of the United States to prove actual prejudice during the course of the panel
proceedings vitiates the legal basis for all
 of the claims made by the United States under Article 6.2.

IV. SECTIONS B.1, B.2 AND B.3 OF ARGENTINA’S CLAIMS ARE WITHIN THE
PANEL’S TERMS OF REFERENCE
A. US
 COMPLAINT
66. According to paragraph 104 of the US first submission, the “defect” in Sections B.1, B.2 and
B.3 is that “Sections B.1 and B.2 allege an incons istency with Article 6 of the AD Agreement in its
entirety, while Section B.3 alleges an inconsiste ncy with Article 3 of the AD Agreement in its
entirety.” Articles 3 and 6 each consist of multip le paragraphs and contain multiple obligations.
Consequently, the United States argues, Sections B.1, B.2, and B.3 do not comply with the Article 6.2
requirement to “present the problem clearly,” because “it is impossible to determine from the panel
request the obligation(s) with which US law or the ITC’s actions allegedly are inconsistent . . . .”42

B. RELEVANT WTO JURISPRUDENCE
67. The relevant WTO case law applicable to this issue has been set out above, in Section III.B.
For the purposes of the complaints that have been made by the United States regarding Sections B.1,
B.2 and B.3, that jurisprudence may be summarized briefly as follows:

a request for the establishment of a panel must set out claims , but not the arguments
in support of those claims;
the listing of the articles of the agreements claimed to have been violated satisfied the
minimum requirements of Article 6.2 of the DSU;
in assessing the consistency of the panel reque st with Article 6.2, the Panel must take
into account whether the ability of the respondent to defend itself was prejudiced,
given the actual course of the panel procee dings, by the fact that the panel request
simply listed the provisions claimed to have been violated; and
as a related point, even if the Article cited in the panel request contains multiple
obligations, the mere listing of such an Article will still meet the requirements of
Article 6.2, absent actual prejudice.
C. ARGENTINA’S POSITION
68. With respect to Article 6, Argentina in itially notes that it has challenged the WTO-
consistency of a sunset review conducted by the United States. Sunset reviews are governed by
Article 11 of the Agreement. As the United States is well aware, Article 11.4 provides in part that:
“The provisions of Article 6 regarding evidence an d procedure shall apply to any review carried out
under this Article.”

69. The reference in Article 11.4 to “the provisio ns of Article 6” make clear that the drafters
intended Article 6 to apply – to quote the US comp laint – “in its entirety” to sunset reviews. By
listing Article 11 – and indeed, Article 11.4 – in sections B.1 and B.2, Argentina put the United States
on notice that it would be making claims under Article 6. Yet the United States made no objection to

42 US First Submission, para. 104.

Argentina’s references to Article 11, or even to Article 11.4. 43 In addition, to provide even greater
precision, Argentina listed Article 6 itself in sections B.1 and B.2. Thus, Argentina has stated its
Article 6 claim clearly and unambiguously.

70. With respect to Article 3, Argentina’s claim B.3 challenges specific provisions of US sunset
law which, by their terms, relate to the temp oral period in which the United States makes its
likelihood of injury determination. In this regard, the panel request references not only Articles 11.1
and 11.3, but also Article 3. Argentina alleged violations of Article 3 provisions given the general
application of Article 3 to review s conducted under Article 11.3, and the role of these provisions in
framing the time period for the injury determination in a sunset review. There is no doubt that these
provisions are directly relevant to the issue of the temporal element as to when injury could be
considered as “likely” to continue or recur.

71. Argentina also notes that its Article 3 claims on this issue were first raised with the United
States over a year ago. Indeed, the wording of Section B.3 of Argentina’s consultations request is
virtually identical to Section B.3 of its panel requ est. Section B.3 of Argentina’s October 10, 2002,
request for consultations states:

The US statutory requirements that the Commission determine whether injury would
be likely to continue or recur “within a reasonably foreseeable time” (19 USC. §
1675a(a)(1)) and that the Commission “shall consider that the effects of revocation or
termination may not be imminent, but may manifest themselves only over a longer
period of time” (19 USC. § 1675a(a)(5)) are inconsistent with Articles 11.3 and 3 of
the Anti-dumping Agreement.44
72. Section B.3 of Argentina’s Panel Request states:

The US statutory requirements that the Commission determine whether injury would
be likely to continue or recur “within a reasonably foreseeable time” (19 USC. §
1675a(a)(1)) and that the Commission “shall consider that the effects of revocation or
termination may not be imminent, but may manifest themselves only over a longer
period of time” (19 USC. § 1675a(a)(5)) are inconsistent with Articles 11.1, 11.3 and
3 of the Anti-Dumping Agreement.
73. As set forth above, the United States has been on notice for over a year that Argentina
considered this statutory provision to be incons istent with “Article 3” of the Anti-Dumping
Agreement. Indeed, the extensive and detailed ques tions presented by Argentina to the United States
prior to the WTO consultations on 14 November and 17 December 2002, provide additional evidence
that the United States was “aware of the claims pr esented by [Argentina], sufficient to allow it to
defend itself.”

74. Argentina provided 86 written questions to th e United States during the consultations, with
about ten questions relating to the Article 3/Ar ticle 11.3 relationship and/or the US statutory
provisions at issue. The United States did not provide a written response to Argentina’s questions and

43 The only other sentence in Article 11.4 states: “Any such review shall be carried out expeditiously
and shall normally be concluded within 12 months of the date of initiation of the review.” The Commission’s
Sunset Determination, which is at issue in Sections B.1 and B.2, was commenced in July 2000 and completed in
June 2001, i.e., within twelve months. This renders the second sentence of Article 11.4 obviously inapplicable
in this dispute. Consequently, the only provision of Article 11.4 which could possibly be relevant is the first
sentence, which, as noted above, incorporates by reference Article 6 “in its entirety.”
44 Request for Consultations by Argentina, United States – Sunset Reviews of Anti-Dumping Measures
on Oil Country Tubular Goods from Argentina, WT/DS268/1 (10 October 2002).

the United States declined to provide substantive responses during consultations. Nor did the United
States provide notice to Argentina that it did not understand the nature of the questions posed by
Argentina in this regard.

75. Argentina is surprised that the United States has annexed these questions to its submission
(US-12), given its previously-expressed concerns ab out protecting the confidentiality and integrity of
consultations. The US – Lamb Safeguards Panel noted that: “The United States . . . seriously
question[s] the admissibility and the relevance to panel proceedings of information from bilateral,
confidential consultations – for which usually no neutral witnesses or written records exist – when
ascertaining whether the specificity requirements stipulated by DSU Article 6.2 for panel requests are
met.”
45 Evidently, the United States has set aside its earlier qualms that “reliance in contentious panel
proceedings on information from consultations could jeopardise their very purpose.”46

76. In any event, as Exhibit US-12 indicates, Argentina’s 86 detailed written questions to the
United States during the consultations period s how clearly that the full nature and scope of
Argentina’s claims were set out in detail for th e United States. Regardless of the number of
individual questions on Articles 3 or 6, the large nu mber of detailed questions further supports the
conclusion that the United States was well aware of the nature of Argentina’s claims.

77. Since the United States has put Argentina’s wr itten questions before the panel, it is important
to emphasize, as Argentina indicated to the DSB on 19 May, that the United States did not express
any concern or confusion as to the nature of any of Argentina’s claims under Article 3 or 6 at any
point during the two rounds of consultations. Once Argentina requested a panel, however, the United
States raised hitherto unexpressed concerns that it “could not discern the legal basis of Argentina’s
complaint . . . .” 47 Argentina questions this sudden and convenient “lack of understanding” by the
United States.

78. Moreover, as the United States notes, Argentin a’s first submission argues that the statutory
provisions related to determining injury “within a reasonably foreseeable time” violate US obligations
under Articles 3.1, 3.2, 3.4, 3.7 and 3.8.

79. This leaves out only Articles 3.3, 3.5 and 3.6. While violations of these provisions in
connection with the statutory provisions at issue in claim B.3 are not developed in Argentina’s first
submission, there can be little doubt that these pr ovisions too have a bearing on the issue of the
temporal element as to when injury could be considered as “likely” to continue or recur. Article 3.3
relates to conducting a cumulative injury analysis, Article 3.5 deals with causation – another clearly
relevant provision on the temporal element wh ile Article 3.6 provides rules regarding the
determination of injury in relation to the domestic production of the like product.

80. Moreover, in considering whether a reference to Article 3 of the Antidumping Agreement is
sufficient for purposes of DSU Article 6.2, paragraph 93 of the Appellate Body report in Thailand H-
Beams is relevant. This paragraph dealt with Arti cle 5 of the Antidumping Agreement, but raised
concepts that are directly relevant to Article 3:

With respect to Article 5, Poland stated that “Thai authorities initiated and conducted
this investigation in violation of the proce dural . . . requirements of Article VI of
GATT 1994 and Article 5 . . . of the Antidumping Agreement.” Article 5 sets out
various but closely related procedural steps that investigating authorities must comply
with in initiating and conducting an anti dumping investigation. In view of the

 45 Panel Report, US – Lamb Safeguards, para. 5.39.
46 Id. at para. 5.40.
47 Dispute Settlement Body: Minutes of Meeting held on 15 April 2003, WT/DSB/M/147, para. 32.

interlinked nature of the obliga tions in Article 5, we are of the view that, in the facts
and circumstances of this case, Poland's reference to “the procedural . . .
requirements” of Article 5 was sufficient to meet the minimum requirements of
Article 6.2 of the DSU.48
81. As with Article 5, Article 3 also has “inter linked obligations.” Artic le 3.1 provides that a
determination of injury must be based on “positive evidence” and involve an “objective examination”
of the volume of the dumped imports, the effect of dumped imports on prices, and the consequent
impact of the dumped imports on the domestic industry. Article 3.2 provides greater precision
regarding the disciplines applicable to Members in determining the volume of the dumped imports,
the effect of the dumped imports on prices, and the consequent impact of these dumped imports on the
domestic producers. Article 3.4 sets out the factors that must be evaluated when considering the
impact of the dumped imports on the domestic indu stry. Article 3.5 requires that there must be a
causal relationship between the dumped imports and the injury. Article 3.7 enumerates when a threat
of material injury may be determined. This is not intended as an exhaustive list, but it does illustrate
quite clearly that – as with Article 5 – Article 3 se ts out the “interlinked obligations” that have been
imposed on Members.

82. Therefore, Argentina’s reference to “Article 3” in Section B.3 also met the standards set out
in DSU Article 6.2.

83. More generally, Argentina’s Panel Request was required to, and did, set out its claims
 under
Articles 3 and 6. Argentina was not required to set out its arguments in support of its Articles 3 and 6
claims. The listing of Articles 3 and 6 in Sections B.1, B.2, and B.3 satisfied the “minimum
requirements” of Article 6.2 of the DSU.49

84. As Argentina’s Panel Request meets the “m inimum requirements” under Article 6.2, the
United States must demonstrate that it sustained actual prejudice during the course of the panel
proceedings. In its challenge to the “Page Four” claims, the United States was only able to offer a few
brief paragraphs as to why it ostensibly suffered pr ejudice. For its challenge to Sections B.1, B.2 and
B.3, the US first submission has put forward only one sentence: “As in the case of Page 4 of
Argentina’s panel request, the United States’ ability to begin preparing its defense has been impaired
because, as a result of Argentina’s failure to comply with Article 6.2, the United States did not ‘know
what case it has to answer.’”50

85. This does not constitute “prejudice,” rising to the level of a violation of due process rights, for
the purpose of DSU Article 6.2. Argentina has shown above, in Section III.C.3, that the United States
has not suffered any actual prejudice during the cour se of the panel proceedings. Argentina will not
repeat these arguments, but it incorporates them by reference into the current section.

86. The US claims under Sections B.1, B.2 and B.3 should be dismissed, because Argentina’s
Panel Request presents the problem clearly, an d the United States failed to demonstrate actual
prejudice.

48 Id. at para. 93.
49 See Appellate Body Report, Korea – Dairy, para. 123.
50 US First Submission, para. 110.

V. THE “CERTAIN MATTERS” REFERRED TO BY THE UNITED STATES ARE ALL
WITHIN THE PANEL’S TERMS OF REFERENCE
A. US
 COMPLAINT
87. The United States asserts that the following matters were not included in Argentina’s Panel
Request and therefore are not within the Panel’s terms of reference:

(i) Argentina’s claim that Commerce’s sunset review practice, both as such and
as applied, is inconsistent with Article 11.3 of the AD Agreement;
(ii) Argentina’s claim that 19 USC. §§ 1675(c) and 1675a(c), the SAA, and the
Sunset Policy Bulletin , taken together, establish an irrefutable presumption that is
inconsistent with Article 11.3 of the AD Agreement;
(iii) Argentina’s claim that Commerce’s s unset review practice is inconsistent
with Article X:3(a) of the GATT 1994;
(iv) Argentina’s claim that the Comm ission’s application of 19 USC. §§
1675a(a)(1) and (5) in the sunset review of OCTG from Argentina is inconsistent
with Articles 11.3 and 3 of the AD Agreement; and
(v) Argentina’s claim that the US Measures it has identified are inconsistent with
Article VI of the GATT 1994, Articles 1 and 18 of the AD Agreement, and
Article XVI:4 of the WTO Agreement.51
B. ARGENTINA’S POSITION
88. At the outset, Argentina notes that the United States has not claimed that it has suffered any
prejudice as a result of the five matters that were allegedly “not included” in Sections A and B of
Argentina’s Panel Request. Although the United States did proffer a tepid assertion of prejudice with
respect to its “Page Four” and “Sections B.1, B.2, and B.3” claims, here it has not asserted any
prejudice at all.

89. For this reason alone, the Panel can summarily dismiss the US Article 6.2 claims under this
section. As noted above, any successful applicat ion under Article 6.2 requires the defending party to
“substantiate” a claim of prejudice. In the sect ion on the alleged five additional claims, the United
States has not even raised, let alone substantiated, a claim of prejudice. Its Article 6.2 claims are
therefore defective and must be dismissed.

90. The United States has not made any claim of prejudice because it has not sustained any
prejudice. Once again, Argentina incorporates by reference into this section the “no prejudice”
arguments discussed in Section III.C.3, above.

91. Even as a matter of textual interpretation, howeve r, the United States is incorrect to assert that
these are five “new” claims not included in Arge ntina’s Panel Request. To recall two fundamental
principles under Article 6.2:

- a panel request need only set out claims, but not the arguments in support of those
claims; and

51 US First Submission, paras. 112-114.

- a panel request must be read “as a whole,” i.e., in its entirety.
92. Turning to the spec ific US allegations:

(i) Argentina’s claim that Commerce’s sunset review practice, both as such and as applied, is
inconsistent with Article 11.3 of the AD Agreement

93. The United States is apparently alleging here that Argentina’s Panel Request does not present
a claim challenging the Department’s sunset review practice as being inconsistent with Article 11.3,
either “as such” or “as applied.” Although the Un ited States focuses on Section A.4 of Argentina’s
Panel Request in making this claim, the US arguments are undermined by the very paragraph they
reference.

94. Section A.4 of Argentina’s Panel Request states:

The Department’s Sunset Determination is inconsistent with Article 11.3 of the Anti-
Dumping Agreement . . . because it was base d on a virtually irrefutable presumption
under US law as such
 that termination of the anti-dumping duty measure would be
likely to lead to continuation or recurrence of dumping. This unlawful presumption is
evidenced by the consistent practice of the Department in sunset reviews (which
practice is based on US law and the Department’s Sunset Policy Bulletin). (Emphasis
added.)
95. The United States reads Section A.4 to raise a claim only with respect to the Department’s
sunset determination in OCTG from Argentina. 52 Section A.4 clearly states, however, that the
Department’s sunset determination was inconsiste nt with Article 11.3 because it was based on an
irrefutable presumption, which was establishe d by “US law as such” and evidenced by the
Department’s “consistent practice.” It is axiomatic that in order for the Department’s sunset
determination to be inconsistent with Article 11.3 as described in Section A.4, that US law
establishing the irrefutable presumption “as such” must also be inconsistent with Article 11.3.
Consequently, Section A.4 makes cl ear that Argentina is challenging the irrefutable presumption in
US law “as such.” Moreover, because Section A.4 states expressly that the Department employed its
consistent practice in the sunset determination of OCTG from Argentina, the panel request thus also
makes clear that Argentina is challenging the Depart ment’s consistent practice “as applied” generally
in sunset reviews. Therefore, even looking at Section A.4 in isolation, the panel request presents the
problem with regard to the Department’s consistent practice clearly.

96. As noted above, however, the panel request mu st be read as a whole. Reading the panel
request as a whole provides further support for the conclusion that Argentina presented the problem
with respect the Department’s consistent practice clearly.

97. Regarding Argentina’s challenge of the Depa rtment’s consistent practice “as such,” the
paragraph immediately preceding Section A states that “certain aspects of . . . policies and procedures
related to the administration of sunset reviews are inconsistent with US WTO obligations.” In
addition, the first sentence of Section A.1 allege s that “US . . . procedures regarding ‘expedited’
sunset reviews are inconsistent” with, inter alia, Ar ticle 11. Finally, Page Fo ur similarly refers to
“policies[] and procedures related to the determinations of the Department” as being inconsistent with
US WTO obligations, including Article 11.3.

98. While Section A.4 of the panel request clea rly identifies the “as such” challenge to the
unlawful presumption and the “as applied” challenged to the Department’s consistent sunset practice,

52 US First Submission, para. 116.

portions other than Section A.4 of the panel request also refer to Argentina’s “as applied” challenge to
US sunset review practice under Article 11.3. For ex ample, the first sentence of Section A.2 refers to
“[t]he Department’s application
 of the expedited sunset review pr ocedures in the sunset review of
OCTG from Argentina” as being inconsistent with , inter alia, Article 11. (Emphasis added.)
Additionally, the first sentence of Section A. 5 states, “The Department’s application of the standard
for determining whether termination of anti-dumping measure would be ‘likely to lead to continuation
or recurrence of dumping’ is inconsistent” with, inter alia, Article 11.3. (Emphasis added.)

99. The United States thus cannot credibly assert that from the terms of the panel request it had
no notice that Argentina was challenging the Department’s practice.

100. Moreover, as explained above, during the consultations Argentina presented written questions
to the United States on a broad set of issues being ra ised by Argentina, including issues related to the
Department’s general sunset practice and the irrefutable presumption established by US law.
53 For
example, in question 13, Argentina asked, “Is there a presumption under US law or practice that
revocation of an antidumping order would likely lead to a continuation or recurrence of dumping?” 54
It is clear that even before Argentina submitted its panel request, the United States had notice that
Argentina was challenging the Department’s consiste nt practice. Consequently, the United States
cannot credibly assert that it suffered actual prejudice during the course of the panel proceedings.

(ii) Argentina’s claim that 19 USC. §§ 1675(c) and 1675a(c), the SAA, and the Sunset Policy
Bulletin, taken together, establish an irrefutable presumption that is inconsistent with
Article 11.3 of the AD Agreement

101. The United States argues that Argentina’s Panel Request does not present the problem clearly
with respect to the irrefutable presumption established by 19 USC. §§ 1675(c) and 1675a(c), the SAA,
and the Sunset Policy Bulletin, taken together. In making this argument, the United States again
limits its focus to Section A.4, rather than considering the panel request as a whole.

102. Read as a whole, Argentina’s Panel Request presents the problem clearly. First, as noted
above, Section A.4 states that the “Department’ s Sunset Determination is inconsistent with
Article 11.3 of the Anti-Dumping Agreement . . . because it was based on a virtually irrefutable
presumption under US law as such
 that termination of the anti-dumping duty measure would be likely
to lead to continuation or recurrence of dumpin g.” (Emphasis added.) Accordingly, Argentina’s
claim that the Department’s Sunset Determination was inconsistent with Article 11.3 relies on the
premise that US law as such establishes an irrefu table presumption of likely dumping. Consequently,
Section A.4 makes clear that Argentina is alleging that US law establishes an irrefutable presumption
of likely dumping that is inconsistent with Article 11.3. Meanwhile, Page Four of the panel request
(on which Argentina has already provided argumenta tion) indicates that “US law” in this context
comprises 19 USC. §§ 1675(c), 1675a, the SAA, and the Sunset Policy Bulletin , and that these
measures violate, inter alia, Article 11.

103. Argentina has thus adequately set out its clai ms and presented the problem clearly. Indeed,
Argentina’s Panel Request exceeded the minimum requirements of Article 6.2 of the DSU, because it
did much more than simply cite Article 11 of the Antidumping Agreement.

104. In addition, during consultations Argentina su bmitted detailed questions that clearly set forth
its claim that the statute, SAA, and Sunset Policy Bulletin establish a presumption that is inconsistent

53 See Written Questions Presented by Argentina for the Consultations on 14 November 2002 (Exhibit
US-12), questions 13, 26, 28-31.
54 Id. at question 13 (emphasis added).

with Article 11.3. 55 For example, question 28 states, “Does the United States consider that the US
antidumping statute, the Statement of Administra tive Action, and the Department’s Sunset Review
Policy Bulletin, establish a presumption in favo r of maintaining an antidumping duty order?” 56
Therefore, the United States cannot credibly assert that it had no notice that Argentina was alleging
that these measures – taken together – establish a pr esumption that is inconsistent with Article 11.3,
and that it was prejudiced as a result.

(iii) Argentina’s claim that Commerce’s suns et review practice is inconsistent with
Article X:3(a) of the GATT 1994

105. The United States alleges that Argentin a’s Panel Request does not clearly challenge
Commerce’s sunset review “practice,” either “as su ch” or “as applied,” as being inconsistent with
GATT Article X:3(a). To the contrary, Argentina’s Panel Request clearly presented the nature of its
claim with respect to Article X:3(a).

106. Section A.4 of the panel request states that “[t]he Department’s Sunset Determination is
inconsistent with . . . Article X:3(a) of the GATT 1994
 because it was based on a virtually irrefutable
presumption under US law as such” that “is evidenced by the consistent practice of the Department in
sunset reviews . . . .” (Emphasis added.)

107. Article X:3(a) of the GATT 1994 states, “E ach contracting party shall administer in a
uniform, impartial and reasonable manner all its laws, regulations, decisions and rulings of the kind
described in paragraph 1 of this article.” Paragra ph 1 of Article X, in turn , refers to the “[l]aws,
regulations, judicial decisions and administrative rulings of general application, made effective by any
[Member], pertaining to . . . rates of duty, taxes, or other charges, or to requirements, restrictions or
prohibitions on imports . . . .”

108. Argentina’s Panel Request is thus clear. Se ction A.4 cites Article X:3(a), and the text of
Article X:3(a) unambiguously expresses each impor ting Member’s obligation to administer its laws,
regulations, decisions and rulings impartially and fairly. Further, Section A.4 provides that the
Department’s violation of Article X:3(a) is evid enced by the Department’s consistent practice in
sunset reviews. The United States therefore has no credible basis to assert that it did not understand
that Argentina was alleging that th e Department’s consistent practice in sunset reviews violates
Article X:3(a).

109. In addition to Section A.4, Page Four of the panel request states that US “policies and
procedures” are inconsistent with Article X of the GATT 1994.

(iv) Argentina’s claim that the ITC’s application of 19 USC. §§ 1675a(a)(1) and (5) in the
sunset review of OCTG from Argentina is inconsistent with Articles 11.3 and 3 of the AD
Agreement”

110. The United States alleges that Argentina’ s Panel Request only challenges 19 USC. §§
1675a(a)(1) and (5) as such, rather than as applied in the sunset determination of OCTG from
Argentina.

111. The United States again fails to consider the panel request “as a whole.” The United States
reads Section B.3 of the panel request in isolation fr om the rest of the text. The heading to Section B
states that “[t]he Commission’s Sunset Determ ination was inconsistent with the Anti-Dumping

55 See Written Questions Presented by Argentina for the Consultations on 14 November 2002, and
17 December 2002 (Exhibit US-12), questions 13, 26, 28-31.
56 Id. at question 28.

Agreement and the GATT 1994.” The heading to Section B applies to each of the subheadings listed
below it, including Section B.3. Thus, the panel request unambiguously indicates that Argentina is
challenging 19 USC. §§ 1675a(a)(1) and (5) both as such and
 as applied in the Commission’s sunset
determination of OCTG from Argentina.

112. In addition, Argentina’s Panel Request contains the factual background to this dispute,
indicating that the Commission determined in its su nset review of Argentine OCTG that injury would
be likely to continue or recur “within a reasonably foreseeable time,” as required by 19 USC. §
1675a(a)(1). This statement provides further indication of Argentina’s intent to challenge the
application of 19 USC. §§ 1675a(a)(1) and (5) in the Commission’s sunset determination of OCTG
from Argentina.

(v) Argentina’s claim that the US Measures it has identified are inconsistent with Article VI
of the GATT 1994, Articles 1 and 18 of the AD Agreement, and Artic le XVI:4 of the WTO
Agreement

113. Page Four of the panel request specificall y references Article VI of the GATT 1994,
Articles 1 and 18 of the Antidumping Agreement, an d Article XVI:4 of the WT O Agreement. In the
context of this dispute, these articles could not ha ve operated in any way other than as consequential
violations. Argentina’s claims under Article VI of the GATT 1994, Articles 1, 18.1, and 18.4 of the
Antidumping Agreement depend upon a breach of substantive provisions of the Antidumping
Agreement. Similarly, Argentina’s claim of a violation of Article XVI:4 of the WTO Agreement
depends upon a breach of a provision of a covered agreement. Therefore, the mere listing of these
provisions in the panel request – which already sa tisfied the minimum requirements of Article 6.2 –
was sufficient to set forth the problem clearly. Ind eed, the US argument on this point indicates that it
understands quite well the purpose – indeed, the only
 purpose – of these dependent provisions.57

114. Before concluding its submission, Argentina is compelled to comment upon the unwarranted
allegations of bad faith in the US first submission with respect to Argentina’s Panel Request:

paragraph 98 of the US first submission st ates the failure of Argentina to draft Page
Four with “similar precision” to the drafting used in Sections A and B “leaves one
with the unavoidable impression that the shift from precision to extreme ambiguity
was not inadverent”;
paragraph 106 suggests that Argentina “knew what claims it intended to make” with
respect to Sections B.1, B.2 and B.3, but that it “wished to conceal that information
for the time being”; and
footnote 103 accuses Argentina of employing a “bait-and-switch gambit.”
115. With such allegations, the United States has essentially accused Argentina, when drafting its
panel request, of deliberately attemp ting to conceal the nature of its claim from the United States, the
third parties, the panel, and DSB. Moreover, su ch an allegation would imply that Argentina has
violated its obligation under DSU to “engage in [dis pute settlement] procedures in good faith in an
effort to resolve the dispute.”

116. To the contrary, Argentina has at all times conduc ted itself consistent with the letter and spirit
of the rules governing WTO dispute settlement. Indeed, throughout the course of consultations, and
in drafting its panel request, Argentina has clearl y identified its claims. Moreover, Argentina had

57 US First Submission, para. 126 (“These claims are consequential claims in the sense that they
depend upon a finding that some other provision of the AD Agreement or GATT 1994 has been breached.”).

hoped to resolve this dispute without the need to resort to the panel process. As noted above,
Argentina provided 86 written questions to the United States (to which it received no written
responses), participated in two rounds of consulta tions, and has always acted in good faith in these
proceedings. For the United States to assert othe rwise is perplexing and completely inconsistent with
the record of this proceeding. Argentina rejects these accusations by the United States.

VI. CONCLUSION
117. The US request for preliminary rulings fails bo th prongs of the two-part test set out by the
Appellate Body for determining whether a panel requ est 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 Argentin a’s claims. Second, the United States has utterly
failed to substantiate its claim that it was alle gedly 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.

118. In light of the attendant circumstances in this case, the United States cannot credibly assert
that it was not aware of Argentina’s claims, “sufficient to allow it to defend itself.”

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

Geneva, 4 December 2003