Document: WT/DS268/RW Page A-1 ANNEX A FIRST WRITTEN SUBMISSIONS OF PARTIES Contents Page Annex A-1 First Written Submission of Argentina A-2 Annex A-2 First Written Submission of the United States A-58
Document codes: WT/DS268/RW
Complainant: Argentina
Respondent: U.S.
Third parties: China, EU, Japan, South Korea, Mexico, Taiwan
Dispute stage: Implementation & Compliance
Agreements cited: Art. 1, 2, 3, 6, 11, 12, 18, Annex II  Anti-dumpingArt. VI, X  GATT 1994Art. XVI:4  Agreement Establishing the World Trade Organization

ANNEX A

FIRST WRITTEN SUBMISSIONS OF PARTIES

Contents Page
Annex A-1 First Written Submission of Argentina A-2
Annex A-2 First Written Submission of the United States A-58

I. INTRODUCTION

1. This dispute raises fundamental questions a bout the enforceability of a key discipline of the
Anti-Dumping Agreement: the "sunset review" provisions of Articles 11.3 and 11.4.

2. During the Uruguay Round, negotiators agreed that "any definitive anti-dumping duty shall
be terminated on a date not later than five years from its imposition, " absent compliance with a
number of strict conditions. Investigating author ities seeking to extend the order beyond this expiry
date have to conduct a "review" be fore that date and make a "determination" that the expiry of the
duty would be likely to lead to continuation or recurrence of dumping and injury.

3. The original Panel in this dispute found that the United States violated its obligations under
Article 11.3 when it extended the anti-dumping dut y order on oil country tubular goods (OCTG) from
Argentina. The United States did not appeal that finding. The United States now claims to have
complied with the DSB rulings, in part by c onducting proceedings under Section 129 of the Uruguay
Round Agreements Act, the statutory authority used by the United States to implement adverse WTO
rulings. The resulting Section 129 Determinati on was issued in December 2005, which is more than
five years after the date when the order was require d to expire in the absence of a WTO-consistent
likelihood of dumping determination.

4. Article 11.3 embodies the carefully calibrated ba lance that was agreed to during the Uruguay
Round. Anti-dumping orders are permitted under the Agreement to remain in force for five years, and
can be extended beyond this period only under the exceptional circumstances enumerated in
Article 11.3. The explicit temporal limitations of Articles 11.3 and 11.4 would be rendered a nullity if
a WTO Member could satisfy those obligations subsequent to the time periods specified in
Articles 11.3 and 11.4. Thus, if, as in this case, the likelihood of dumping determination undertaken
at the required time was not supported by positive evidence, then the Member has no right to extend
the measure.

5. Argentina respectfully submits that to pe rmit the United States to "comply" with its
Article 11.3 obligations in this case with a post hoc sunset proceeding – nearly eleven years after the
imposition of the order, and five years after its scheduled expiration – would render a nullity the
temporal limitation on anti-dumping orders, contrary to the unambiguous intent of the drafters. This
would be contrary to the clear admonition of the Appellate Body that an in terpretation that renders
inutile a provision of a covered agreement would be "a bhorrent to the principles of interpretation we
are bound to apply".
1

6. The facts of this case demonstrate that th e Section 129 Determination did not bring the
United States into conformity with its obligations under Article 11.3 of the Anti-Dumping Agreement,
nor into compliance with the rulings of the DSB. The United States developed, in 2005, a different
factual basis to support its 2000 likely dumping dete rmination in a manner inconsistent with the
requirements of Article 11.3.

7. Wholly separate and apart from USDOC's illegal development of a new factual basis in 2005
to support the 2000 likelihood of dumping determination, the new factual basis for the Section 129
Determination is itself WTO-inconsistent. In addition, USDOC's conduct of the Section 129
proceeding in developing this new information was also inconsistent with US WTO obligations. The
new factual basis developed for the 2005 likelihood of dumping determination falls far short of the
positive evidence required under Article 11.3 to support a WTO-consistent determination that
dumping was likely to continue or recur, and significant aspects of the procedures employed by

1 Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products ,
WT/DS58/AB/R, adopted 6 November 1998, para. 121.

USDOC in the Section 129 proceeding were patently inconsistent with the provisions of Article 6 of
the Anti-Dumping Agreement.

8. Finally, the United States failed to bring the US statutory and regulatory waiver provisions
into conformity with US WTO obligations and with the rulings of the DSB.

II. PROCEDURAL BACKGROUND

9. On 17 December 2004, the DSB adopted the Appellate Body Report and the Panel Report, as
modified by the Appellate Body, in this disput e. The resulting DSB rulings encompassed both "as
applied" violations related to USDOC's November 2000 likelihood of dumping determination in the
sunset review for OCTG from Argentina and "as such" violations related to the "waiver" provisions of
United States law and regulations.

10. The Panel found that the USDOC likelihood of dumping determination was inconsistent with
Articles 11.3 and 6.2 of the Anti-Dumping Agreement. 2 These findings were not appealed by the
United States.

11. The Panel determined that the USDOC 's likelihood of dumping determination was
inconsistent with Article 11.3 of the Anti-Dump ing Agreement for two separate and independent
reasons. First, the Panel determined that there wa s no legal or evidentiary basis for USDOC to have
considered that dumping had continued over the life of the order, and thus that there was no basis for
a determination that dumping would be likely to continue or recur. 3 Second, the Panel determined
that the application of the waiver provisions inva lidated the factual basis for USDOC's likelihood of
dumping determination. 4 The Panel also found that the USDOC's likelihood of dumping
determination was inconsistent with Article 6. 2 of the Anti-Dumping Agreement because "Siderca
was subjected to a procedure that fell short of th e requirements of Article 6.2 of the Agreement in
respect of hearings."5

12. With respect to the "waiver" provisions, th e Appellate Body upheld the Panel findings that:
• Section 751(c)(4)(B) of the Tariff Act of 1930 and Section 351.218(d)(2)(iii) of the
US Department of Commerce (USDOC) Regulations are inconsistent, as such, with
Article 11.3; and
• Section 351.218(d)(2)(iii) of the USDOC Regulations is inconsistent, as such, with
Articles 6.1 and 6.2 with respect to respondents that file incomplete submissions in
response to the USDOC's notice of initiation of a sunset review.
 6

13. The DSB recommended that the United States br ing its measures into conformity with US
WTO obligations. On 14 January 2005, the Unite d States informed the DSB that it intended to
implement the recommendations and rulings of the DSB in a manner that respected US WTO
obligations.7

2 Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular
Goods from Argentina, WT/DS268/R, adopted 17 December 2004, para. 8.1(d)(i) ("Panel Report").
5 Panel Report, US – Oil Country Tubular Go ods Steel Sunset Reviews , paras. 7.235; see also
para. 8(1)(d)(i).
6 Appellate Body Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country
Tubular Goods from Argentina, WT/DS268/AB/R, adopted 17 December 2004, para. 365(c)(i) and (ii).
7 Minutes of DSB Meeting, WT/DSB/M/181, 14 January 2005, para. 10.

14. During the subsequent arbitration under DSU Article 21.3(c) to determine the "reasonable
period of time" for compliance, the United States argu ed that it needed 15 months, in part to comply
with the extensive due process requirements of Ar ticle 6 of the Anti-Dumping Agreement. The
Award of the Arbitrator noted the US position as follows:

The United States argues that the time required to carry out these procedural steps in
the two phases of implementation demonstrates the need for a 15-month
implementation period in this dispute…. In the second phase, the USDOC also needs
sufficient time to ensure that it complies with its obligations of transparency and due
process under Articles 6 and 12 of the Agreement on Implementation of Article IV of
the General Agreement on Tariffs and Trade 1994 (the " Anti-dumping Agreement").
The United States argues that, in accordance w ith previous arbitration awards, this
should include time to obtain and analyze in formation from interested parties, even
though this is not expressly required by statute or regulation.
8

15. On 7 June 2005, the Arbitrator determined that the "reasonable period of time" for the
United States to implement the DSB recommendations and rulings would be 12 months from the date
of adoption of the Panel and Appellate Body Reports, i.e., by 17 December 2005.9

16. On 28 October 2005, the United States published in the Federal Register a notice of
amendment of section 351.218(d)(2) of the USDOC regulations.
10 The Federal Register notice stated
that the USDOC was "amending its regulations rela ting to sunset reviews to conform the existing
regulation to the United States' obligations under Articles 6.1, 6.2, and 11.3" of the Anti-Dumping
Agreement.11 The United States made no changes to Section 751(c)(4)(B) of the Tariff Act of 1930,
the section of US law that the DSB ruled to be inconsistent with Article 11.3.

17. On 2 November 2005, the USDOC initiated a Section 129 proceeding to address the Panel's
findings concerning the USDOC's likelihood determin ation. On 31 October 2005, USDOC requested
information from Argentine OCTG producers Tubhier, Acindar, and Siderca S.A.I.C. (Siderca).
12 For
the period 1995-2000 (the period of the original suns et review), the USDOC requested certain cost of
production information for OCTG, as well as production and shipment volumes. Acindar and Siderca
submitted their responses on 30 November 2005.13

18. The USDOC did not issue any supplemental questionnaires, or provide a briefing schedule as
to the timing for written argument or a public hearing. Nor did the USDOC conduct a public hearing.
On 16 December 2005, the USDOC issued its Secti on 129 Determination, finding that "we find there
is likelihood of continuation or recurrence of dumping had the antidumping duty order on OCTG from
Argentina been revoked in 2000, i.e., at the end of the original sunset period".
14 The Section 129

8 Award of the Arbitrator, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country
Tubular Goods from Argentina, Arbitration under Article 21.3(c) of the DSU, WT/DS268/12, 7 June 2005,
para. 10.
9 Award of the Arbitrator, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country
Tubular Goods from Argentina, Arbitration under Article 21.3(c) of the DSU, WT/DS268/12, circulated
7 June 2005, para. 53.
10 Procedures for Conducting Five-Year ("Sunset") Reviews for Antidumping and Countervailing Duty
Orders: Final Rule, 70 Fed. Reg. 62,061 (28 Oct. 2005) (ARG-12).
11 Procedures for Conducting Five-Year ("Sunset") Reviews for Antidumping and Countervailing Duty
Orders: Final Rule, 70 Fed. Reg. 62,061 (28 Oct. 2005) (ARG-12).
12 USDOC Questionnaire to Acindar, Tubhier and Siderca (31 Oct. 2005) (ARG-12).
13 Acindar's Response to Questionnaire (30 Nov. 2005) (ARG-14).
14 Section 129 Determination: Final Results of Sunset Review, Oil Country Tubular Goods from
Argentina, A-357-810 (16 Dec. 2005) ("USDOC Section 129 Determination") (ARG-16).

Determination references and relies in part on several USDOC internal file memoranda that are dated
16 December 2005 – the same date as the Section 129 Determination.

19. On 20 December 2005, the United States asserted to the DSB that it had "implemented the
recommendations and rulings of the DSB in [this] dispute".15 Argentina does not agree. Accordingly,
there is "disagreement as to the existence or consistency with a covered agreement of measures taken
to comply with the recommendations and rulings" of the DSB within the meaning of Article 21.5 of
the DSU."
16

20. On 26 January 2006, Argentina requested consu ltations with the United States. Consultations
between the parties were held on 7 February 2006, in Washington, D.C., and by teleconference on
22 February 2006. The consultati ons failed to settle the dispute. On 6 March 2006, Argentina
requested the establishment of a Panel. The Panel was established by the DSB on 17 March 2006,
and it was composed on 20 March 2006.

III. FACTUAL BACKGROUND FOR USDOC'S SECTION 129 DETERMINATION OF
LIKELIHOOD OF DUMPING

A. USDOC'S ORIGINAL ANTI-DUMPING INVESTIGATION OF OCTG FROM ARGENTINA IN
1994

21. The anti-dumping investigation that gave rise to the US anti-dumping duty order on Argentine
OCTG began in 1994 and was co mpleted in 1995. The US industry's petition in the original
investigation identified Siderca as the only produ cer and exporter of OCTG from Argentina. The
USDOC justified the initiation of an investiga tion of Argentine OCTG based on the information
related to Siderca that the petitioners provided. Siderca was the only Argentine producer and exporter
considered to be a mandatory respondent for the investigation, and was the only party to which
USDOC issued a questionnaire. The USDOC conducted a full investigation of Siderca and calculated
a dumping margin of 1.36 per cent for Siderca, which was also used as the "all others" rate that would
apply to any other Argentine exporter.
17

22. Siderca had not shipped any OCTG to the Un ited States for consumption during the relevant
sunset review period. Siderca was the only Ar gentine producer/exporter for which annual reviews
were requested for the years ending July 1996, 1 997, 1998, and 1999, and c onducted during the five-
year period relevant to sunset proceedings c onducted by USDOC and the US International Trade
Commission (USITC). USDOC conducted "no-shipme nt" reviews during the sunset review period
and, in each instance, upheld Siderca's claims that the company had not exported OCTG to the
United States.
18 In all cases, USDOC ultimately agreed w ith Siderca's certification that it made no
shipments and therefore rescinded the annual reviews because there were no shipments to review.

15 Statements by the United States at the December 20th Meeting of the WTO Dispute Settlement Body ,
available at http://www.us-mission.ch/Press2005/1221DSBmeeting.html.
16 On 5 January 2006, Argentina and the United States concluded an agreement on procedures under
Articles 21 and 22 of the DSU that apply to this dispute: Agreed Procedures under Articles 21 and 22 of the
Dispute Settlement Understanding Applicable to the WTO Dispute United States – Sunset Reviews of the Anti-
Dumping Duties on Oil Country Tubular Goods from Argentina, WT/DS268/14, 5 January 2005.
17 Oil Country Tubular Goods from Argentina , 60 Fed. Reg. 33,539 (Dep't Comm. 1995)(final anti-
dumping determ.)(ARG-1). Even though this amount was below the 2 per cent de minimis level established in
Article 5.8 of the Anti-Dumping Agreement, the inves tigation 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.
18 Oil Country Tubular Goods from Argentina , 62 Fed. Reg. 18,747 (Dep't Comm. 1997) (rescinded
admin. Review) (ARG-2); Oil Country Tubular Goods from Argentina , 63 Fed. Reg. 49,089 (Dep't Comm.
1998) (rescinded admin. Review) (ARG-3); Oil Country Tubular Goods from Argentina , 64 Fed. Reg. 4,069

B. USDOC'S 2000 LIKELIHOOD OF DUMPING DETERMINATION

23. On 3 July 2000, the USDOC initiated a sunset review of the anti-dumping duty order on
OCTG from Argentina. 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 noti ce and filed a complete substantive response,
arguing that revocation of the order would not be likely to lead to continuation or recurrence of
dumping and that USDOC should therefore revoke the order on OCTG from Argentina. 21 I n i t s
response, Siderca stated that it did not export OCTG to the United States during the five-year period
examined in the sunset review. Siderca 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

25. On 22 August 2000, USDOC determined that Siderca's otherwise complete substantive
response to USDOC's notice of initiation of the sunset review was "inadequate" because the
company's exports fell below the Department's deemed threshold level:

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 351.218(e)(1)(ii)(A)), we recommend that
you determine Siderca's response to be inad equate and that we should conduct an
expedited (120 day) sunset review (as provided 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 USDOC's Sunset Determination), USDOC stated:

Although the Department received a substan tive response on behalf of Siderca, the
Department explained in its August 22, 2000 adequacy determination that because,
during the period 1995 to 1999, the average annual share of Siderca's exports of the
subject merchandise vis-a-vis the total Argentine exports of the subject merchandise
during the same period was significantly below the fifty-per cent threshold provided

(Dep't Comm. 1999) (rescinded admin. review) (ARG-4); Oil Country Tubular Goods from Argentina , 65 Fed.
Reg. 8,948 (Dep't Comm. 2000) (rescinded admin review) (ARG-5).
19 See Notice of Initiation of Five-Year ("Sunset") Reviews , 65 Fed. Reg. 41,053 (Dep't Comm. 2000)
(ARG-6). 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-7).
20 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 Oct. 2000)(final results) at 3-4 (" Issues and
Decision Memorandum") (ARG-8).
21 See Substantive Response of Siderca to the Department's Initiation of Sunset Review of the
AD Order on OCTG from Argentina (2 Aug. 2000)(ARG-9).
22 See Substantive Response of Siderca to the Department's Initiation of Sunset Review of the
AD Order on OCTG from Argentina (2 Aug. 2000) at 3 (ARG-9).
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 Aug. 2000) at 2 (ARG-10)

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 r esponse was inadequate, USDOC 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 th e Sunset Regulations, this constitutes a waiver of
participation".25

28. In its 7 November 2000 Final Determination in the sunset review (which incorporated
USDOC'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 th at the margin of likely dumping was 1.36 per cent, the same rate
as in the original investigation. The Department reported this rate to the USITC as the likely dumping
margin to prevail in the event of termination. 26

C. USDOC'S 2000 LIKELIHOOD OF DUMPING DETERMINATION FOUND TO BE
INCONSISTENT WITH ARTICLES 6.2 AND 11.3 OF THE ANTI-DUMPING AGREEMENT

29. The original Panel found that USDOC's likelihood of dumping determination was
inconsistent with Article 11.3 because (1) there was no legal or evidentiary basis for the USDOC to
have considered that dumping had continued over th e life of the order, and thus that there was no
basis for a WTO-consistent determination that dumping would be likely to continue or recur
27; and
(2) the application of the waiver provisions invalid ated the factual basis for the USDOC's likelihood
of dumping determination.28

30. Specifically, the original Panel stated:

USDOC's Issues and Decision Memorandum de monstrate that the USDOC relied on
the existence of the original dumping margin when concluding that dumping
continued over the life of the order. The i ssue therefore is whether the existence of a
dumping margin from the original investiga tion can be interpreted to mean that
dumping continued over the life of the measure. In our view, it cannot. The original
dumping margin reflects the result of the dumping margin calculations in the original
investigation, which establish the basis fo r the anti-dumping measure to be imposed
in that investigation. The existence of the original dumping margin cannot be the
basis of a factual determination that dump ing continued over the life of the measure.
Exporters subject to the measure might ha ve changed their export or home market
prices, or, their cost of production might have changed. Thus, if an investigating
authority relies upon the existence of dumping over the life of the measure as part of
its sunset determination, it has to have an adequate factual basis for so concluding …
The existence of the original dumping ma rgin cannot be the basis of a factual
determination that dumping continued over the life of the measure …. In our view …
the original determination of dumping by itself cannot represent a sufficient factual
basis for concluding that dumping continued during the life of the measure, let alone
representing an adequate factual basis to c onclude that dumping is likely to continue
or recur after the expiry of the order. The purpose of a sunset review is to examine

24 Issues and Decision Memorandum at 3 (ARG-8).
25 Issues and Decision Memorandum at 5 (ARG-8).
26 Oil Country Tubular Goods from Argentina, Italy, Japan, and Korea , 65 Fed. Reg. 66,701
(Dep't Comm. 2000)(final results sunset review)(ARG-11).

whether the facts continue to justify the imposition of an anti-dumping measure. The
USDOC, however, did not engage in that inquiry because it simply relied on the
existence of the dumping margin from the original investigation.
Assuming arguendo that the basis of the USDOC's finding that dumping continued
over the life of the measure was, as the United States asserts, the continued shipments
of the subject product and the continued collection of the duty, rather than the
existence of the original dumping margin per se, our analysis would not change ….
In our view, the fact that some imports of the subject product continued to be shipped
from Argentina to the United States and th at anti-dumping duties continued to be
collected on these shipments over the life of the order does not represent an adequate
factual basis for the proposition that dumping continued in that period.
We recall that the USDOC's likelihood determination in this sunset review was based
on two factual findings, i.e. first dumping continued over the life of the measure and
second import volumes declined following the imposition. We have found that the
factual basis of the first one is not proper . We therefore conclude that the USDOC's
likelihood determination in the instant sunset review was inconsistent with
Article 11.3 of the Anti-Dumping Agreement.
… Although the USDOC's final determinati on does not refer to … company-specific
determinations, logically these determinations must be a relevant part of the factual
basis of the USDOC's overall country-wide likelihood determination in the OCTG
sunset review. In our view, the application of deemed waivers provisions to
Argentine exporters other than Siderca inva lidated the factual basis of the overall
country-wide determination. Therefor e, in addition to our above-stated
considerations, we also find that the application of these provisions in the OCTG
sunset review was inconsistent with Article 11.3 of the Agreement.
29

31. The Panel also found that USDOC had violat ed Article 6.2 of the Anti-Dumping Agreement
because the USDOC's sunset review had "depriv[ed] cooperating exporters of their procedural rights":

Given the explicit provision of Article 6.2 that hearings have to be arranged when so
requested by interested parties, it becomes clear that in the OCTG sunset review
Siderca was subjected to a procedure that fell short of the requirements of Article 6.2 of
the Agreement in respect of hearings…. In our view, the fact that certain exporters do
not participate in a sunset review cannot justify depriving cooperating exporters of their
procedural rights under Article 6.2.
30

D. USDOC'S 2005 LIKELIHOOD OF DUMPING DETERMINATION

32. Prior to formally commencing the Sec tion 129 proceeding, USDOC requested the
Government of Argentina to assist USDOC in iden tifying all Argentine producers of OCTG within
the period 1995-2000, including dr ill pipe and casing and tubing. 31 The USDOC's 14 October 2005
communication stated in part as follows:

In that [original] investigation [the US DOC] determined that Argentine producers of
OCTG had sold OCTG in the United States at less-than-fair value prices. In this

29 Panel Report, paras. 7.219-7.222 (footnotes omitted).
30 Panel Report, para. 7.235.
31 Letter from USDOC to Embassy of Argentina, Washington, D.C., 14 October 2005 (ARG-17).

sunset proceeding, the Department seeks to determine whether dumping of OCTG in
the United States by Argentina producers (most of whom had ceased exporting
OCTG to the United States following imposition of the antidumping duty order)
would continue or recur if the anti dumping duty order had been revoked in
August 2000.
32
33. In providing the information requested by the USDOC, the Government of Argentina pointed
out several inaccuracies in the Department's request , including that "the public documents clearly
establish, the 1994/95 investigation did not involve producer
s; it involved a single producer, Siderca.
The Department never identified any other Argentine producer, it never sought to investigate any
other producer, and there was no determination that 'Argentine producers' sold OCTG in the
United States at less-than-fair value. The only finding was related to Siderca, which was the only
producer identified and investigated by the Department."
33

34. Argentina further explained that there w as no factual basis for the USDOC assertion that
"most" of the "producers" "had ceased exporting OCTG to the United States following imposition of
the antidumping duty order". Argentina then stat ed that there was no information on the USDOC
record establishing that any producer other than Si derca had exported before the order, and so it was
meaningless to reference "most" of the producers ceasing their exports after the imposition of the
order.34

35. After identifying USDOC's factual inaccuraci es regarding its description of the original
investigation and sunset review, Argentina identified Siderca as a producer of OCTG during the
relevant period. The Government of Argentina added that "[b]ased on the information mainly
developed by the USITC, it appears that other Ar gentine steel producers such as Tubhier and Acindar
have had, at different points of time, the cap ability to produce OCTG, although no information
available to the Government of Argentina indicat es that those companies produced any OCTG during
the relevant period".35

36. On 31 October 2005, USDOC requested in formation from Argentine OCTG producers
Tubhier, Acindar, and Siderca. 36 For the period 1995-2000, the USDOC requested certain cost of
production information for OCTG, as well as production and shipment volumes. As Siderca
specifically advised, the USDOC did not explain how it would use the information solicited, "what
procedures [would] be followed to analyze the information, the timing of any hearing, and how the
parties [would] be permitted to have access to and comment on the essential facts being used by the
Department to make its determination".
37 All three Argentine producers – Tubhier, Acindar, and
Siderca – responded to USDOC's request for information. 38 USDOC did not issue any supplemental
questionnaires to any of the Argentine exporters, or provide a briefing schedule as to the timing, if
any, for rebuttal and reply comments. Nor did the USDOC conduct a public hearing.

32 Letter from USDOC to Embassy of Argentina, Washington, D.C., 14 October 2005 (ARG-17).
33 Letter from Embassy of Argentina, Washington, D.C., to USDOC, 28 October 2005, at 2
(Appendix I to USDOC Memorandum to the File from Fred Baker, Analyst, through Robert James, Program
Manager, and Mike Heaney, Team Leader, Information for the Record (22 Nov. 2005)) (ARG-18).
34 Id.
35 Letter from Embassy of Argentina, Washington, D.C. to US Department of Commerce,
28 October 2005, at 3 (Appendix I to USDOC Memorandum to the File from Fred Baker Analyst, through
Robert James, Program Manager, and Mike Heaney, Team Leader, Information for the Record (22 Nov. 2005))
(ARG-25).
36 USDOC Questionnaire to Acindar, Tubhier, and Siderca (31 Oct. 2005) (ARG-13).
37 Letter from Siderca to USDOC, 7 December 2005, at 3 (ARG-19).
38 Letter from Embassy of Argentina, Washington, D.C., to USDOC, 30 Nov. 2005 (transmitting
Tubhier's Response to Questionnaire (23 Nov. 2005)) (ARG-20); Acindar's Response to Questionnaire
(30 Nov. 2005) (ARG-14); Siderca's Response to Questionnaire (30 Nov. 2005) (ARG-15).

37. The USDOC's Section 129 Determination was issued on 16 December 2005. The Department
stated "we find there is likelihood of continuation or recurrence of dumping had the antidumping duty
order on OCTG from Argentina been revoked in 2000, i.e., at the end of the original sunset period". 39
The USDOC 2005 affirmative likelihood determina tion was based on: (1) inferences drawn from
selected excerpts of the Argentine exporters' financial statements 40; (2) the use of certain limited
pricing data regarding certain of Acindar's shipments and observed market prices in the United
States41; and (3) the inference that dumping would be likely, based on the decline in volume of
Argentine OCTG following the imposition of the anti-dumping order. 42 These inferences are
discussed further below.

IV. USDOC'S SECTION 129 DETERMINATION IS INCONSISTENT WITH US WTO
OBLIGATIONS AND FAILED TO IMP LEMENT THE RECOMMENDATIONS AND
RULINGS OF THE DSB

38. The United States offers as "compliance" w ith its Article 11.3 obligation a likely dumping
determination made in December 2005, ten-and-one-half years after imposition of the duties, and
nearly five years after it continued the duties. In Argentina's view, the 2005 likelihood determination
did not bring the United States into conformity with US obligations under Article 11.3 of the Anti-
Dumping Agreement or into compliance with the re commendations and rulings of the DSB. In this
regard, USDOC's 2005 likelihood determination in no way justifies USDOC's continuation of anti-
dumping duties on Argentine OCTG in 2001.

39. First, in the 2005 Section 129 proceeding, the USDOC developed a new factual basis to
support the WTO-inconsistent determ ination it made in 2000. The USDOC acted inconsistently with
Articles 11.3 and 11.4 of the Anti-Dumping Agreem ent by developing new factual information to
support its 2000 likelihood of dumping determination, where none of the evidence required to support
such a determination was developed in 2000, the time when USDOC was obliged to conduct the
requisite "review" and gather the necessary posit ive evidence in order to make the requisite
"determination" required by Articles 11.3 and 11.4 of the Anti-Dumping Agreement.

40. At the same time, in its 2005 Section 129 proceeding USDOC chose not to ask the Argentine
exporters any questions relating to the causes for the post-order volume decline, which was the only
factor for which USDOC developed a factual basis in the review conducted in 2000. Information
provided by the Argentine exporters to USDOC regarding the causes for the volume decline was
ignored without even being mentioned in USDOC's Section 129 Determination. USDOC simply
remained content with its assumption from 2000, d espite the admonitions from the Appellate Body.
This cannot satisfy the obligations of the Unite d States to conduct a "review" and to make a
"determination" prior to continuing the anti-dum ping measure beyond five years, which is the
unequivocal requirement of Articles 11.3 and 11.4.

41. Second, and in the alternative, even assuming arguendo that the USDOC were permitted to
develop the requisite factual information in 20 05 to support its 2000 likelihood determination, the
2005 Section 129 Determination nevertheless failed to satisfy the requirements of Article 11.3 of the
Anti-Dumping Agreement and the United States did not bring itself into compliance with the rulings
and recommendations of the DSB. The USDOC did not establish a sufficient factual basis of positive
evidence necessary to support a WTO-consistent finding of likely dumping. It did not objectively
assess the information that it had. The USDOC's conclusions are not reasoned, and the evidence it

39 USDOC Section 129 Determination at 11 (ARG-16).
40 USDOC Section 129 Determination at 9-10 (ARG-16).
41 USDOC Section 129 Determination at 6-8 (ARG-16).
42 USDOC Section 129 Determination at 11 (ARG-16).

developed does not support a WTO-consistent de termination that dumping would be likely.
Moreover, USDOC's conduct of the Section 129 proceeding was also inconsistent with several
US obligations under the provisions of Article 6 of the Anti-Dumping Agreement. Separately, the
United States violated its obligations under Artic le 13 of the Anti-Dumping Agreement by failing to
implement the Section 129 Determination so as to affo rd judicial review of that determination in a
US court.

42. Subsection A describes the requirements of Articles 11.3 and 11.4 of the Anti-Dumping
Agreement and the relevant WTO jurisprudence clarifying the Agreement's sunset provisions.
Subsection B explains why USDOC acted inconsistent ly with Article 11.3 by: (i) seeking to develop
new factual information in 2005 to support its 2000 likelihood of dumping determination, where none
of the evidence that was required to support such a determination was developed in 2000; and
(ii) relying in 2005 on its inference from 2000 of likely dumping based on the post-order decline in
Argentine OCTG imports, where USDOC made no e ffort (either in 2000 or 2005) to support its
assumption and determine the reason for the decline. Subsections C and D present an alternative
argument, in which even assuming arguendo that the USDOC were permitted to develop the
requisite factual information in 2005 to support its 2000 likelihood determination, the 2005 USDOC
Section 129 Determination neverthele ss failed to satisfy US obligati ons under Articles 6.1, 6.2, 6.4,
6.5.1, 6.6, 6.8, 6.9, 11.1, 11.3 and Annex II of the Anti-Dumping Agreement, and did not bring the
United States into compliance with the rulings and recommendations of the DSB. Finally, subsection
E explains that the United States' failure to implement USDOC's Section 129 Determination
precluded the opportunity for the Argentine respondents to seek judicial review in a US court, in
violation of Article 13 of the Anti-Dumping Agreement.

A. THE REQUIREMENTS OF ARTICLES 11.3 AND 11.4 OF THE ANTI-DUMPING AGREEMENT

43. Article 11.3 provides as follows:

Notwithstanding the provisions of paragra phs 1 and 2, any definitive anti-dumping
duty shall be terminated on a date not la ter 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 pa ragraph), unless the authorities determine,
in a review initiated before that da te on their own initiative or upon a duly
substantiated request made by or on be half 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.
44. In US – Corrosion-Resistant Steel Sunset Review , the Appellate Body provided authoritative
guidance on the obligations imposed on Members during a sunset review by Article 11.3. It began by
noting that:

Article 11.3 imposes a temporal limitation on the maintenance of anti-dumping duties.
It lays down a mandatory rule with an excep tion. Specifically, Members are required to
terminate an anti-dumping duty within five years of its imposition " unless" the
following conditions are satisfied: first, that a review be initiated before the expiry of
five years from the date of the imposition of the duty; second, that in the review the
authorities determine that the expiry of the duty would be likely to lead to continuation
or recurrence of dumping; and third, that in the review the authorities determine that the

expiry of the duty would be likely to lead to continuation or recurrence of injury. If any
one of these conditions is not satisfied, the duty must be terminated. 43

45. The Appellate Body explained that "the likelihood determination is a prospective
determination. In other words, the authorities must undertake a forward-looking analysis and seek to
resolve the issue of what would be likely to occur if the duty were terminated". 44 The Appellate Body
went on to stress the diligence and rigor required by the authorities under Article 11.3:

[The] language in Article 11.3 makes clear that it envisages a process combining both
investigatory and adjudicatory aspects. In ot her words, Article 11.3 assigns an active
rather than a passive decision-making role to the authorities. The words "review" and
"determine" in Article 11.3 suggest that authorities conducting a sunset review must act
with an appropriate degree of diligence and arrive at a reasoned conclusion on the basis
of information gathered as part of a process of reconsideration and examination. In
view of the use of the word "likely" in Article 11.3, an affirmative likelihood
determination may be made only if the ev idence demonstrates that dumping would be
probable if the duty were terminated – and not simply if the evidence suggests that such
a result might be possible or plausible.
45

46. Article 11.4 of the Anti-Dumping Agreemen t provides that the review conducted under
Article 11.3 "shall be carried out e xpeditiously and shall normally be concluded within 12 months of
the date of initiation of the review." In clarifying Article 11.4 of the Agreement, the Appellate Body
expressly recognized that the ability to keep an order in place for up to one more year was an
"additional exception" – and in effect, the sole exception – to the requirement that anti-dumping duties
will be terminated after five years:

Article 11.3 states that, notwithstanding the provisions of Articles 11.1 and 11.2,
Members "shall" terminate an anti-dumping duty "unless" the authorities make an
affirmative likelihood determination in a s unset review. This confirms that the
mandatory rule in Article 11.3 applies in addition to, and irrespective of, the obligations
set out in the first two paragraphs of Article 11. This also suggests to us that authorities
must conduct a rigorous examination in a sunset review before the exception (namely,
the continuation of the duty) can apply. In addition, our view of the exacting nature of
the obligations imposed on authorities under Article 11.3 is supported by a
consideration of the implications of initiati ng a sunset review. The last sentence of
Article 11.3 allows the relevant duty to c ontinue while the review is underway, and
Article 11.4 contemplates that the review process may take up to one year. These
provisions create an additional exception to the requirement that anti-dumping duties
will be terminated after five years, permitting a Member to maintain the duty for the
period during which the review is ongoing, regardless of the outcome of that review.
This, too, suggests that the drafters of the Anti-Dumping Agreement saw the sunset
review as a rigorous process that can take up to one year, involving a number of
procedural steps, and requiring an appropria te degree of diligence on the part of the
national authorities.
46

43 Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-
Resistant Carbon Steel Flat Products from Japan, WT/DS244/AB/R, adopted 9 January 1994, paras. 104-105
(original emphasis) ("US – Corrosion-Resistant Steel Sunset Review").
44 Appellate Body Report, US - Corrosion-Resistant Steel Sunset Review, paras. 104-105 (original
emphasis).
45 Appellate Body Report, US - Corrosion-Resistant Steel Sunset Review, para. 111 (original emphasis).
46 Appellate Body Report, US - Corrosion-Resistant Steel Sunset Review, para. 113.

47. As noted above, the Appellate Body then e ndorsed the view of the Panel in that case on the
obligations imposed by Article 11.3 on investigating authorities in a sunset review:

The text of Article 11.3 contains an obligation "to determine" likelihood of continuation
or recurrence of dumping and injury…. 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 application period, it is clear that the investigating
authority has to determine, on the basis of positive evidence, that termination of the
duty is likely to lead to continuation or recurrence of dumping and injury. An
investigating authority must have a sufficient factual basis to allow it to draw reasoned
and adequate conclusions concerning the likelihood of such continuation or
recurrence.
47

48. The Appellate Body in the present dispute reaffirmed the meaning of "review" and
"determination" in the obligations imposed by Article 11.3:

The plain meaning of the terms "review" a nd "determine" in Article 11.3, therefore,
compel an investigating authority in a sun set review to undertake an examination, on
the basis of positive evidence, of the lik elihood of continuation or recurrence of
dumping and injury. In drawing conclusions from that examination, the investigating
authority must arrive at a r easoned determination resting on a sufficient factual basis; it
may not rely on assumptions or conjecture.48

49. In US – OCTG from Mexico, the Appellate Body affirmed that:

…what is essential for an affirmative dete rmination under Article 11.3 is proof of
likelihood of continuation or recurrence of dumping and injury, if the duty expires. The
nature and extent of the evidence required for such proof will vary with the facts and
circumstances of the case under review. Furthermore, as the Appellate Body has
emphasized previously, determinations under Article 11.3 must rest on a "sufficient
factual basis" that allows the investigating authority to draw "reasoned and adequate
conclusions."
49

47 Appellate Body Report, US - Corrosion-Resistant Steel Sunset Review , para. 114 (emphasis added).
After quoting this passage, the Appellate Body stated that: "The Panel's description of the obligations of
investigating authorities in conducting a sunset review closely resembles our own, and we agree with it."
Id., para. 115.
48 Appellate Body Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country
Tubular Goods from Argentina , WT/DS268/AB/R, adopted 17 December 2004, para. 180 (" US - Oil Country
Tubular Goods Sunset Reviews").
49 Appellate Body Report, United States – Anti-Dumping Measures on Oil Country Tubular Goods
(OCTG) from Mexico, WT/DS282/AB/R, adopted 28 November 2005, para. 123 ("US - OCTG from Mexico").

B. THE SECTION 129 DETERMINATION DID NOT BRING THE UNITED STATES INTO
CONFORMITY WITH US OBLIGATIONS UNDER ARTICLES 11.3 AND 11.4 OF THE
ANTI-DUMPING AGREEMENT AND DID NOT ACHIEVE COMPLIANCE WITH THE
RULINGS OF THE DSB

50. In considering whether the United States is now in compliance with its Article 11.3
obligation, Argentina asks this panel to apply the terms of Articles 11.3 and 11.4 of the Anti-Dumping
Agreement. Applying the text of these provisions, as clarified by the Appellate Body, to the
circumstances of this dispute leads to the followi ng requirements, which Arge ntina considers to be
beyond dispute:

First, because the anti-dumping duty order on OCTG from Argentina was imposed in
August 1995, the United States had an obligation to terminate the measure before
August 2000 unless it adhered to the requirements for invoking the exception (continuation of
the measure), as set forth in Articles 11.3 and 11.4;

Second, in order to invoke the exception and to extend the measure beyond August 2000, the
US authorities were required to initiate a "review" before "that date," (i.e., August 2000) and
to "determine" that "expiry of the duty would be likely to lead to continuation or recurrence of
dumping";

Third, the "review" and "determination" in this regard must have had the following
characteristics:

• It needed to be a prospective determination, requiring a forward-looking analysis;
• USDOC needed to take an active rather than a passive role in developing and
assessing the information;
• USDOC was required to act with an appropr iate degree of diligence and arrive at a
reasoned conclusion on the basis of inform ation gathered as part of a process of
reconsideration and examination;
• The requirement to make a "determinati on" concerning likelihood precluded USDOC
from simply assuming that likelihood exists; and
• USDOC was required to assess the information before it objectively and to have a
sufficient factual basis to allow it to draw reasoned and adequate conclusions
concerning such likelihood.

51. The USDOC Section 129 Determination does not bring the United States into compliance
with the obligation of Articles 11.3 and 11.4 as they apply to this case for several reasons.

52. First, the USDOC chose to develop a new a nd different factual basis for its Section 129
Determination. This informati on, first developed in 2005, cannot justify the 2001 decision by
USDOC to invoke the exception of Article 11.3 and to extend the measures beyond August 2000.
This is not a case of the national authorities seeking to clarify information that it had developed in the
2000 proceeding (that is, in the review initiated "at that time"); rather, it is a case in which the
authority takes a second, different approach to the issue, creating a new factual basis in 2005 to justify
its 2001 decision to extend the measure.

53. The difference between the factual bases of the 2005 and 2000 proceeding are clear. In the
original 2000 proceeding, USDOC sent out no ques tionnaires and limited itself to a review of the
information submitted by the parties. After stating that the issue is "whether the USDOC's likelihood

determination in this sunset review rested on a sufficient factual basis", 50 the Panel went on to state
and conclude that:

The purpose of a sunset review is to examine whether the facts continue to justify the
imposition of an anti-dumping measure. The USDOC, however, did not engage in that
inquiry because it simply relied on the ex istence of the dumping margin from the
original investigation.51

The Panel's finding could not be clearer: the Un ited States continued the anti-dumping measure in
2001 without having "engage[d] in [the] inquiry" required by Article 11.3.

54. In the 2005 Section 129 proceeding, the USDO C takes a different approach, requesting from
all the identified potential producers: 1) financia l statements for the period 1995-2000; 2) cost
information for ten categories of OCTG products; 3) a description of each company's sales and
marketing processes; and 4) a statement as to whether the company exported OCTG to the
United States during the 1995-2000 period.
52 Only this last question was related to the information
that USDOC developed in its 2000 review. All of the other information (and presumably more) was
available to the USDOC in 2000, but the USDOC decided to invoke the exception of Article 11.3 and
continue the anti-dumping measure without developi ng any additional information. In fact, USDOC
even chose to conduct the 2000 review under the so- called "expedited review" procedures, which, by
its nature, limited the development of information and argument in the review. The fact that USDOC
had to develop this information for the first time in 2005 demonstrates that this information was never
part of the factual basis that the USDOC developed to support its 2001 decision to continue the anti-
dumping measure.

55. Second, the newly-developed information appare ntly played a key role in the Department's
affirmative determination in the 2005 Section 129 determination. Specifically, the Department based
its 2005 Section 129 determination on: 1) infere nces drawn from statements in Siderca's and
Acindar's financial statements during the original sunset period; 2) US import prices for Acindar's
shipments compared to observed US market prices ; and 3) the inference that the decrease in
Argentine OCTG exported to the US market afte r the imposition of the order demonstrated that
dumping would be likely to continue or recur in the absence of the order.53

56. There can be no dispute that the factual basis for the first two points were developed for the
first time in the 2005 Section 129 proceeding:
• Financial Statements: USDOC never requested the companies' financial statements in
the original sunset proceeding, even though these documents must have been
available to the Department at that time. There is no reference to financial statements
in the record developed by the USDOC prior to extending the anti-dumping measure,
and DOC's 2000 decision does not mention the producers' financial statement. In fact,
USDOC had not even bothered in the 2000 s unset proceeding to take the rudimentary
step of identifying the relevant Argentine producers, choosing instead to assume the
existence of other producers and invoke th e "waiver" provisions of US law. The
USDOC sought and obtained financial statements for the first time in 2005.
• Customs data: The customs data relied on by USDOC in the Section 129 proceeding
was never developed at the time of the 2000 sunset review. Such information

50 Panel Decision, para. 7.211.
51 Panel Decision, paras. 7.219. The Panel also observed that the USDOC relied on a finding "that
import volumes declined following the imposition of the order." Id. at paras. 7.213, 7.221.
52 USDOC Questionnaire (31 Oct. 2005) (ARG-13).
53 USDOC Section 129 Determination at 6-11 (ARG-16).

certainly could have been developed at the time, but it was not. The fact that USDOC
developed this information in conjunction with another US government agency shows
that USDOC could have done this had it applied the appropriate degree of diligence
and taken an active, not passive, role in the original sunset determination in 2000.

57. In relying on information developed for th e first time in 2005, the USDOC did not render a
decision that brings the United States into compliance with its obligations under Article 11.3 and 11.4.
Those obligations require a substantive, reasoned "d etermination" in a review initiated "at that time"
in order to continue the anti-dumping measure bey ond the five-year deadline, which expired in this
case in August 2000. There is no possibility that the United States can justify its 2001 decision to
continue the anti-dumping measure on the basis of new factual information that developed only in
2005.

58. The only other basis for the 2005 Section 129 Determination is USDOC's restatement of the
inference it drew in 2000 from the decrease in Argentine exports after the 1995 imposition of the anti-
dumping order. The only references in USDOC's Section 129 Determination with respect to the
volume issue are the following:

[W]e solicited and considered information and argument from domestic and respondent
interested parties for the same period at issue in our original sunset review, 1995 – 2000.
Based upon this information and argument, as well as findings on import volumes during the
1995 – 2000 from the original sunset review, we continue to find that revocation of the order
would be likely to lead to continuation or recurrence of dumping.
54

In assessing likelihood, we also rely on our prev ious finding regarding the volume of imports
of subject merchandise for the period before and the period after the issuance of the
antidumping duty order. In the original sunset review, we found that after imposition of the
order, import volumes significantly decreased from pre-order levels. [citations omitted].
Declining import volumes after, and apparently resulting from, imposition of an antidumping
duty order indicate that exporters would need to dump to sell at pre-order levels.
55

59. This is the sum total of the discussion of the volume issue in the 2005 Section 129
Determination: one reference in the introduction on page 1, and one reference immediately before the
conclusion on page 11. Both refe rences specifically state that the USDOC is relying on the "previous
finding" (i.e. in the 2000 sunset review), and ma ke clear that the USDOC did not develop further
factual basis for its inference.

60. By treating the volume issue in this manner , the USDOC has sent an unequivocal message to
Argentina and to this Panel: it can rely on th e inference arising from declining import volumes
without an analysis of the cause for the decrease. The USDOC even reminds the reader, twice, that
this was the position it took initially, and that this Panel decided to refrain from deciding the issue in
its first review.56

61. Clearly, the United States has taken advantage of this Panel's decision to leave this issue
unresolved. As a preliminary, but extraordinaril y important matter, Argentina asks that the Panel
decide the issue in this Article 21.5 proceeding so that the dispute may now be resolved.

54 USDOC Section 129 Determination at 1 (ARG-16).
55 USDOC Section 129 Determination at 11 (ARG-16).
56 USDOC Section 129 Determination at 2 n.4 and 6 n.12 (ARG-16).

62. In Argentina's view, the USDOC's treatment of the volume issue in the 2005 Section 129
Determination (which expressly incorporates the treatment of the issue in the 2000 Sunset
Determination) is deficient and must be reject ed by the Panel. USDOC does nothing more than
merely restate its reliance on this factor. Its disinterest in doing anything other than relying on its
assumption is clear from its short discussion on pa ge 11: "Declining import volumes after, and
apparently resulting from, imposition of an antidumping duty order indicate that exporters would need
to dump to sell at pre-order levels." (Emphasis added) . There is no factual basis for this assumption,
either in the 2000 Sunset Determination or in the 2005 Section 129 Determination, where the
Department is content to say what "apparently" is the case, and what an exporter "would need" to do.
This type of conjecture, without factual basis, does not satisfy the requirements of Article 11.3.

63. Also, it should be recalled that the 2000 Sun set Determination was one that was conducted on
an "expedited" basis, a procedure which the Pane l found to violate Article 6.2 of the Anti-Dumping
Agreement on the facts of this case. USDOC, apparen tly confident in its inference, continues to rely
on the findings made in that proceeding, without even asking any questions or otherwise developing
information regarding the causes for the volume decline.

64. The Appellate Body has made clear that assumptions are not enough to support a
determination under Article 11.3, and that "a case-specific analysis of the factors behind a cessation of
imports or a decline in import volumes (when dumping is eliminated) will be necessary to determine
that dumping will recur if the duty is terminated". 57 The Appellate Body stated that it did not believe
that historical dumping margins or import volumes could always be presumed to constitute sufficient
evidence of likely dumping:

We would have difficulty accepting that dumping margins and import volumes are
always 'highly probative' in a sunset review by USDOC if this means that either or both
of these factors are presumed, by themselves, to constitute sufficient evidence that the
expiry of the duty would be likely to lead to continuation or recurrence of dumping.58

65. The Appellate Body subsequently reaffirmed in US - OCTG from Mexico that in the context
of declining volumes, it is insufficient to rely on presumptions or conjecture as to a company's ability
to ship to the US market without dumping:

if the dumping had ceased soon after the i ssuance of the order, and there was no
dumping or there were no imports for a substa ntial period before the sunset review, the
investigating authority will need credible evidence to come to the conclusion that
dumping will "recur" if the anti-dumping duty order is revoked. A respondent party
may have the responsibility to introduce relevant evidence in its favour, but the
investigating authority also has a duty to seek information to ensure that its
determination rests on a sufficient evidentiary foundation. An affirmative determination
cannot rest merely on a presumption, as envisaged under scenario (b) or (c), that the
cessation of dumping or of imports was due solely to the anti-dumping duty order.
59

66. USDOC ignored this requirement in the 2000 Su nset Determination, and then repeated its
error by simply relying on its earlier finding in the 2005 Section 129 Determination.

67. In summary, the 2005 Section 129 Determina tion did not bring the United States into
compliance with its Article 11.3 and Article 11.4 obligations. USDOC chose not to develop further
any of the information relating to the post-order volume decrease, which was the only factor for which

57 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 177.
58 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 177.
59 Appellate Body Report, US - OCTG from Mexico, para. 199.

it developed a factual basis in the review conducted in 2000 that led to its 2001 decision to continue
the measure. It simply remained content with its assumption from 2000, despite the admonitions from
the Appellate Body. At the same time, USDOC al so chose to develop new and different factual
information that demonstrably was not considered in the review conducted prior to the 2001 decision
to continue the anti-dumping measure. That information – developed in November and
December 2005 – cannot satisfy the obligations of the United States to conduct a "review" and to
make a "determination" prior to continuing th e anti-dumping measure, which is the unequivocal
requirement of Articles 11.3 and 11.4.

C. IN THE ALTERNATIVE, EVEN ASSUMING ARGUENDO THAT THE USDOC WERE
PERMITTED TO DEVELOP THE REQUISITE FACTUAL INFORMATION IN 2005 TO SUPPORT
ITS 2000 LIKELIHOOD DETERMINATION, TH E 2005 SECTION 129 DETERMINATION
NEVERTHELESS FAILED TO SATISFY THE REQUIREMENTS OF ARTICLE 11.3 OF THE
ANTI-DUMPING AGREEMENT

68. Aside from the question whether any review conducted by the United States in 2005 could
justify its 2001 decision to continue the duties, or whether a review based on a completely different
factual basis can do so, there are other reasons why the 2005 determination does not bring the
United States into compliance with its obligatio ns. First, the USDOC 2005 determination does not
comply with the requirements of Article 11.3 of the Anti-Dumping Agreement to demonstrate that
dumping is likely to continue to recur in the event of expiry of the order. Second, the USDOC 2005
determination violated several provisions of Article 6 of the Anti-Dumping Agreement, which the
United States acknowledged as being applicable to its 2005 determination.

1. USDOC's 2005 Determination Does Not Properl y Establish that Dumping was Likely to
Continue or Recur in 2000

69. For its 2005 determination, the USDOC s ought to develop new in formation related to
production costs and the selling process of OCTG from Argentina for the period 1995-2000. Each of
the three Argentine companies identified by USDOC responded to USDOC's questionnaire. 60 Each
company said that it no longer maintained the requested information because it was outdated, and that
Argentine law did not require the retention of this information. Tubhier added that it had never
exported OCTG. Tubhier and Acindar advised that they were not relevant OCTG producers. Siderca
provided reconstructed cost information to the best of its ability and provided other positive evidence
regarding the reasons for its absence from the US market, its exports to other markets, and the
evolution of its production and sales processes since the imposition of the order in 1995.

70. In making its affirmative likelihood of dum ping determination in December 2005, USDOC
relied on the following:

1. Statements from Siderca's and Acindar's financial statements;
2. US import prices for Acindar's shipments compared to US market prices; and
3. The inference made in 2000 that the d ecrease in Argentine OCTG exported to the
US market after the imposition of the order in 1995 demonstrated that dumping
would be likely to continue or recur in the absence of the order.

71. In addition, the USDOC stated that it was "convinced" that Siderca's cost information was
flawed, and therefore it disregarded the cost information that it had previously requested.

60 See Siderca's Response to Questionnaire (30 No v. 2005) (ARG-15); Acindar's Response to
Questionnaire (30 Nov. 2005) (ARG-14); Letter from Embassy of Argentina, Washington, D.C., to USDOC,
30 Nov. 2005 (transmitting Tubhier's Response to Questionnaire (23 Nov. 2005)) (ARG-20).

72. As demonstrated below, the USDOC did not properly establish a factual basis necessary to
support a likely dumping finding, it did not objectively assess the information, its conclusions are not
reasoned, and the evidence developed does not show that dumping would be likely.

(a) USDOC's Conclusions Regarding Siderca Are Inconsistent With Article 11.3

73. The USDOC decided not to use any of Siderc a's cost information in its likelihood analysis,
stating "Given the unreliability of the cost informat ion provided by Siderca and the fact that Siderca
made no US sales of OCTG during the original sunset review period, we make no findings regarding
specific instances of likely dumping by Siderca during the original sunset review." 61 The conclusion
that the data was "unreliable" was based on three subsidiary findings: 1) that the OCTG cost data was
"inconsistent with other product cost data for steel products" and "counter-intuitive" 62; 2) that
"Siderca's cost calculations for non-OCTG products are problematic because their costs significantly
exceed OCTG costs"
63; and 3) that "methodological discrepancies" make it "unclear exactly how
broad a product category Siderca has used in estimating its costs data".64

74. As a preliminary matter, these statements demonstrate a new, and flawed approach by
USDOC to its Article 11.3 determination. No where does the Anti-Dumping Agreement discuss the
concept of "likely" dumping that occurred in the past. Article 11.3 uses the phrase "likely" to
describe the prospective, counterfactual determinati on that must be made if a WTO Member intends
to extend an anti-dumping measure beyond five years: it must find "that the expiry of the duty would
be likely to lead to continuation or recurrence of dumping and injury". The determination of whether
dumping existed in a past period is governed by Articles 2 and 9 (Article 9 incorporates the
substantive rules of Article 2), neither of which men tions the possibility of a determination of "likely"
dumping with respect to past sales. Yet, this appa rently is what the USDOC intended to establish by
requesting cost information from Siderca: the pu rported unreliability of that data frustrated the
Department's attempts to make "findings regard ing specific instances of likely dumping by Siderca
during the original sunset review period".
65

75. In addition, as will be explained in more detail below, there is no basis for USDOC's
conclusion that Siderca's data was unreliable. Rather, the three arguments relied on by the
Department to support the purporte d unreliability show that the Department failed to properly
establish the fact, did not conduct an objective assessment of the facts, and did not reach reasoned
conclusions supported by positive evidence.

 (i) USDOC manipulated Siderca's cost data to create the purported "inconsistencies" and
counter-intuitive conclusions.

61 USDOC Section 129 Determination at 9 (ARG-16).
62 USDOC Section 129 Determination at 8 (ARG-16).
63 Id.
64 Id. at 9.
65 Id. at 9.

76. The USDOC stated that:

[W]e find that the estimated product cost da ta Siderca submitted are inconsistent with
other product cost data for steel products. Sp ecifically, in comparing similar types of
OCTG, Siderca has reported lower costs for certain products that require additional
materials, processing, and testing, as compared to costs for products that do not require
such additional materials, processing, and testing. A complete discussion of these
discrepancies necessitates discussion of Siderca's business proprietary information;
for specific examples, see the Department's Memorandum to the File dated
16 December 2005.
66

77. The "complete discussion of these discrepancies" cited by USDOC to justify its decision to
disregard the company's cost data is a four-line chart in a memorandum dated 16 December 2005 (the
same date as USDOC's final determination). 67 In this chart, the USDOC makes an observation
regarding certain of the average costs reported by Si derca, and states that it is "convinced" that the
reporting must be wrong based on its understanding of what it supposes the cost relationship should
be between these product groupings. As the chart show s, the perceived problem is in the reporting of
the relative costs of carbon and alloy casing.

78. In fact, the chart serves only to demonstrate – clearly and unambiguously – USDOC's lack of
an objective assessment of the facts and its result-orie nted approach. Contrary to its statement, the
data submitted by Siderca did not show the in consistency claimed by the USDOC; the USDOC
created the appearance of a discrepancy by manipulating Siderca's data.

79. To see this clearly, we start with a comparison of the product categories requested in
USDOC's questionnaire and Siderca's cost response with the product categories in USDOC's
memorandum:

Item # Product Groupings Requested by
USDOC and reported by Siderca
Product Groupings in
USDOC's Memorandum
1 Casing, carbon, plain end Casing, carbon
2 Casing, carbon, threaded and coupled
3 Casing, alloy, plain end Casing, alloy
4 Casing, alloy, threaded and coupled

As can be seen, USDOC did not compare the data provided in the form requested and provided by
Siderca: that is, it did not compare the costs of casing, carbon, plain end (item 1 above) with the
costs of casing, alloy, plain end (item 3), which would have been the reasonable comparison to do if
one wanted to compare the cost di fference associated with the type of steel used (carbon or alloy).
Instead, DOC first calculated a weighted-average of the cost of casing, carbon, plain end (item 1) with
the cost of casing, carbon, threaded and coupled (i tem 2) in order to invent a new, more general
category, "casing, carbon". It then calculated a si milar weighted average for the cost of the two
different alloy product groupings (items 3 and 4), and then compared the two weighted averages.

66 USDOC Section 129 Determination, at 8 (ARG-16).
67 USDOC Memorandum to the File from Mark Flessner, Case Analyst, Re: In the Matter of
Section 129 Determination With Respect to Oil Country Tubular Goods from Argentina, Inconsistencies in data
reported by Siderca, S.A.I.C. (ARG-21).

80. What did the USDOC achieve by this manipulation? Several things. First, it was able to
obscure the fact that the direct comparison using Siderca's actual data disproved their theory that an
inconsistency existed. That is, using Siderca's data for each product grouping requested (item 1 vs. 3;
item 2 vs. 4) showed that the cost of the alloy product was always higher than the cost of the carbon
product, in each of the five years requested . The contrary conclusion can only be reached by
manipulating the data as USDOC did in its memorandum.

81. Second, the manipulation uses two other variab les to create the apparent discrepancy: the
additional cost of threading and the relative volumes. The first is obvious: it will always cost more to
put a specific type of end finishing on a pipe (such as threading and coupling) than to have no end
finishing ("plain end"). By averaging together the costs of two product groupings having different
end finishing, the cost differences between the other distinguishing factor – steel type (carbon versus
alloy) – becomes less apparent. The second factor is more subtle, but equally apparent from Siderca's
reported data: most carbon casing is threaded and coupled (implying the additional cost of the end
finishing), while alloy casing is more evenly divided between plain end and threaded and coupled.
Thus, by calculating a weighted average (using volum e as the weighting factor), the results will tend
to raise the weighted average cost of carbon casing (reflecting the fact that most products in this
grouping are threaded and coupled) relative to alloy casing.

82. Argentina would like to stress that the calc ulation of the weighted average was unnecessary.
The form in which Siderca provided the informati on to USDOC was consistent with the form in
which USDOC requested the information, and it permitted a direct comparison of the product
groupings in order to isolate the impact on costs of using alloy steel instead of carbon steel.
Analyzing the data in this form contradicted USDOC's conclusion. USDOC then manipulated the
data by weight-averaging the costs of finished and plain end pipes, skewing the comparisons so that
they demonstrated the difference s caused by the type of steel and the type of end finish. USDOC
used the data resulting from these skewed comparisons to reach the conclusion that Siderca's cost
information was plagued by "discrepancies," and that USDOC was "convinced" of these problems.

83. USDOC's treatment of Siderca's cost information raises several problems. First, it is a clear
example of the USDOC's lack of objective assessment of the facts. The information provided by
Siderca in response to the product groupings demons trated that Siderca's cost information was
consistent with USDOC's understanding that alloy products should cost more to produce than carbon
products. It is simply not an objective assessme nt to claim that the data prove the opposite,
a conclusion that can only be reached by manipulating the data so that the cost of the end-
finishing raises the cost of the carbon product relative to the alloy product.

84. Second, DOC did not properly establish the facts necessary to reach reasoned conclusions
regarding Siderca's data. If it had any questions about the relative costs of producing carbon and alloy
casing, USDOC had an obligation to reveal these concerns to Siderca and ask supplemental questions.
USDOC cannot simply remain silent until the day of the final decision and reveal the results of its
analysis. As explained in section IV.D below, such an approach also violates several obligations of
Article 6.

85. Third, the effect of USDOC's manipulation of the data was to exclude positive evidence
submitted by Siderca to show that dumping was not likely to continue or recur. As Siderca explained:
"The [cost] data . . . accurately reflect the increasing production efficiencies achieved by Siderca
through this period," with significant gains in productivity in its rolling mill (17.8 per cent) and labour
(10.5 per cent).
68 Siderca added: "The cost data (even with the limitations explained above) supports
Siderca's position: Siderca is a cost-efficient producer of OCTG and could have shipped OCTG

68 Siderca's Response to Questionnaire (30 Nov. 2005) at 2 (ARG-15).

products profitably to the United States." 69 DOC rejected this evidence without further questions or
attempts to clarify any concerns.

 (ii) USDOC's analysis does not establish that Siderca's reported costs of non-OCTG are
"problematic".

86. As the second reason for its conclusion that Siderca's cost information was unreliable,
USDOC stated:

In addition, Siderca's cost calculations for non-OCTG products are problematic because
their costs significantly exceed OCTG costs. The products included in this product
grouping are line pipe, standard pipe, structural tubing, mechanical tubing, and pressure
pipe. The costs for the specific products in this group can vary greatly but, in
aggregate, we would expect that they not exceed the costs for the specific noted OCTG
product groupings because the majority of tubular demand is in the lower value
products such as line pipe, standard pipe, and structural tubing.
70

87. On its face, the passage relies on what USDO C "would expect" to be the relative costs of
OCTG and non-OCTG. But, nowhere in the record is there any factual basis for these expectations,
nor was the USDOC's interest in such comparisons re vealed to the parties so that they could provide
meaningful comment. In fact, the USDOC's reason ing shows that the failure to develop a factual
basis for this conclusion and to solicit comments from the parties precluded the USDOC from
reaching a reasoned conclusion.

88. The USDOC conclusion that the costs are problematic depend upon: 1) its assumptions
regarding what other products Siderca produces; 2) its implicit assumptions regarding the relative
quantities of the different products that Siderca pr oduced ("product mix") during the period; and
3) its assumptions regarding the relative costs of the products, both among OCTG and the non-OCTG
groups, and implicitly among the types of non-OCTG. Without these assumptions, USDOC would
not have any basis to conclude that Siderca's aggregate cost of OCTG should be higher or lower than
non-OCTG. Yet, none of these facts appear on the r ecord. The Department never asked Siderca for
this information, and it did not develop these facts on its own and place them on the record.

89. The USDOC's logic also is dubious. Explaini ng why the cost of non-OCTG should be lower
than the cost of OCTG, the USDOC says that this is true "because the majority of tubular demand is
in the lower value products such as line pipe, stan dard pipe, and structural tubing". The statement
itself is ambiguous: the logical connection betwee n the relative demand for different types of non-
OCTG pipe and the cost of those types of pipe is not immediately clear. A product that is in great
demand could have either a high cost or a low cost. Price will reflect demand, but cost may not. It is
simply not clear what the USDOC means by its statement.

90. Also, the premise of the statement – that OCTG has a higher cost than non-OCTG – simply is
not true. Had the USDOC requested such information, Siderca could have shown that the unit cost of
producing certain types of seamless non-OCTG (e.g., some mechanical, pre ssure, and cold-drawn
pipe) significantly exceeds the unit cost of OCTG. The Department did not establish the facts
necessary to make these statements, either by ask ing the parties or by doing its own research and
disclosing that research to the parties.

91. Finally, the statement that "the majority of tubular demand is in the lower value products" is
also highly suspect, and of questionable relevance, as it applies to Siderca's production. First, again,

69 Id. at 10.
70 USDOC Section 129 Determination at 8 (ARG-16).

there is no factual support for the statement in the record. USDOC did not seek or otherwise establish
this information. Second, while the statement may be true if one considers all tubular products, both
welded and seamless, it is not true with respect to seamless tubular products, which are the products
that Siderca produces. The USDOC must know – or could have learned had it asked the question
before making the assumption – the demand for seamle ss pipe (structural and standard) is miniscule
compared to the same types of pipe in welded form.
71 The USDOC's failure to distinguish Siderca's
production (which is exclusively of seamless t ubular products) from general assumptions about the
total tubular market (which is primarily a we lded products market) significantly undermines the
USDOC's attempted analysis. In summary, there is no basis for USDOC's conclusion that the
comparison of Siderca's cost of OCTG and non-OC TG was "problematic". USDOC did not establish
the factual basis necessary to support such a conclusion, it did not objectively assess the information
that was present, and it did not reach a reasoned conclusion from the information.

 (iii) USDOC had no factual basis for concluding that there were "methodological
discrepancies" that rendered the cost data unreliable.

92. As the third reason for its conclusion that Si derca's cost information was unreliable, USDOC
stated:

We also find methodological discrepancies with the estimates submitted by Siderca.
The estimates for all years were based on Siderca's "operational cost reports".... As
Siderca acknowledges, these cost reports we re not product-specific. Rather, these
reports provide only a summary detail of "t he operational costs of the major product
[sic] lines of the plant on which the producti on occurs"…. From this statement it is
unclear exactly how broad a product category Siderca has used in estimating its cost
data. As a result, we are unable to rely on the data for a likelihood analysis regarding
OCTG.
72

93. The statement demonstrates that the USDOC did not understand what Siderca was trying to
say: "it is unclear . . . ," the USDOC stated. But, rather than ask a follow-up question to clarify the
information, USDOC simply resolved the purported am biguity against Siderca: "As a result, we are
unable to rely on the data for a likelihood anal ysis regarding OCTG." This language, and the
USDOC's failure even to attempt to clarify the information, speaks for itself. It also demonstrates that
the USDOC did not engage in the type of active revi ew that the Article 11.3 requires, as the Appellate
Body has clarified.

94. In fact, the methodology was not unclear. The description of the methodology appeared in
Attachment 4 to Siderca's 30 November 2005 res ponse to USDOC's questionnaire, which appears as
ARG-15. The four-page description explains the methodology in narrative form and provides
examples to demonstrate each stage of the calcu lation. USDOC created its own ambiguity by
misquoting Siderca's description. While Siderca expl ained that its operational cost reports "report the
operational costs of the major production lines of the plant on which the production occurs", USDOC
confused the phrase "production lines" with "product lines" and stated:

71 For example, the Argentine industry informs the Government that the Preston Pipe & Tube Report (a
publication the USDOC cited for other purposes in its 129 Determination) from March 2000 shows the dramatic
difference: total supply of tubular products is dominated by welded products. For 1999, total supply exceeded
12 million tons, but less than 2 million tons (approximately 15 per cent) were seamless. Standard pipe (one of
the lowest-valued tubular products) accounted for approximately 20 per cent of the total supply. But, only
14 per cent of all standard pipe supplied to the US market was seamless, while 86 per cent was the welded
product that Siderca does not produce. Seamless standard pipe simply is not a high-demand product and does
not fit the USDOC's theory.
72 USDOC Section 129 Determination at 9 (ARG-16).

these reports provide only a summary detail of "the operational costs of the major
product lines of the plant on which the production occurs"…. From this statement it is
unclear exactly how broad a product category Siderca has used in estimating its cost
data. As a result, we are unable to rely on the data for a likelihood analysis regarding
OCTG.73

In misquoting Siderca, the USDOC did more than miss a few letters at the end of the word "product",
it missed the concept. Siderca reported the actual cost of the production lines used for producing the
products for which the USDOC requested informati on. If there is any ambiguity, then, USDOC's
carelessness in interpreting the information provided by the exporter is at least partially to blame.

95. Even if the description of the methodolog y were somehow unclear – which it was not –
USDOC had an obligation to attempt to clarify its doubts rather than simply assume that there is a
mistake or that the methodology is otherwise defec tive. Again, the USDOC did not conduct an active
review, did not establish the factual basis necessary to support its conclusion, it did not objectively
assess the information that was present, and did not reach a reasoned conclusion from the information.

 (iv) USDOC's interpretation of comments from Siderca's financial statements is flawed
and does not support a finding of likely dumping.

96. After disregarding Siderca's cost informati on as not credible, the USDOC then pointed to
statements in both Siderca's and Acindar's financial statements reflecting the worldwide depression of
the OCTG market in 1999/2000, and asserted that th ere was no evidence suggesting that this would
change. Specifically, the USDOC made the follo wing observations regarding Siderca's financial
statements:
• "Sales for fiscal 2000 were 25 per cent lowe r than during the previous fiscal year,
reflecting the effects of the drastic fall in world demand for tubes for the oil industry;"
• "Operating results were a loss of $27 milli on in fiscal 2000, constituting six per cent
of sales revenue for the year. The prior year Siderca had recorded a profit of
$28 million"; and
• "During fiscal 2000 Siderca ended with a loss of $39 million, compared to a profit of
$86 million the previous year."
 74

Based on these isolated observations, the USDOC conc luded that: "Given the weakened condition of
Siderca at the end of the original sunset review period, we consider that there was no valid indication
that a sudden turn-around in the OCTG market was likely."
75

97. The USDOC's conclusions regarding Siderca's financial statements are flawed. There are
several reasons why the Department's establishment and assessment of this evidence fell short of the
Agreement's standard that determinations must be based on the "objective assessment" of "positive
evidence."

98. First, the probative value of USDOC's obser vations is dubious. "Dumping" has a specific
meaning under the Anti-Dumping Agreement, and that meaning is contained in Article 2. Even
though the USDOC is not required to calculate a dumping margin in an Article 11.3 review, the
requisite likelihood of dumping dete rmination must be related to the concept of "dumping" that is

73 USDOC Section 129 Determination at 9 (ARG-16)(emphasis added).
74 USDOC Section 129 Determination at 9 (ARG-16).
75 USDOC Section 129 Determination at 9 (ARG-16).

defined in Article 2. The specific financial statemen ts cited by USDOC, by their nature, relate to the
total operations of multi-product companies, and USDOC did not even attempt to tie such statements
to OCTG that might be exported to the United Stat es. The USDOC's observations are not related to
"dumping", and they certainly do not constitute evid ence of likely or probable dumping of OCTG to
the United States.

99. Second, USDOC's conclusion that there is " no valid indication that a sudden turn-around in
the OCTG market was likely" is demonstrably contrary to the evidence. Siderca specifically provided
an interim financial statement fo r the April–June 2000 period, and brought to USDOC's attention the
portions that showed that such a recovery was not only likely, but that it had started to occur. 76 The
USDOC ignores this information, and offered no ju stification for closing its eyes to Siderca's
information. Also, the USITC had already documen ted the recovery in the OCTG market in its
likelihood of injury determination. The conditions had improved to the extent that the US industry
was not even considered to be vulnerable to in jury. The USDOC cites to other findings by the
USITC, but conveniently ignores the portions of the USITC record indicating the rebound in the
OCTG market that the USDOC says is nowhere on the horizon. This is not characteristic of an
objective analysis.

100. Third, positive evidence demonstrated that Side rca had reacted to the lean years within the
period by achieving production efficiencies and trimming its costs. As Siderca explained to USDOC,
"The [cost] data . . . accurately reflect the increasing production efficiencies achieved by Siderca
through this period", with significant gains in productivity in its rolling mill (17.8 per cent) and labour
(10.5 per cent).77 Siderca added: "The cost data (even with the limitations explained above) supports
Siderca's position: Siderca is a cost-efficient producer of OCTG and could have shipped OCTG
products profitably to the United States". 78 USDOC rejected this evidence without further questions
or attempts to clarify any concerns.

101. Fourth, the USDOC's treatment of information from the financial statements is one-sided and
not objective. The April–June 2000 financial stat ements submitted by Siderca showed a profit of
$27,413,771 in one quarter, demonstrating the recove ry that had already begun and the benefits
reaped by Siderca's increasing efficiency. 79 Also, sales volume increased to 185,882 metric tons (a
48 per cent increase over the same period in the prev ious year) and total production volume increased
to 195,132 metric tons (a 66 per cent increas e over the same period in the previous year). 80 USDOC
does not even mention this information, but instead relies on the data from previous periods as
probative information of what is likely to occur in the future.

102. Finally, Siderca provided evidence that was probative of the absence of a likelihood of
dumping. But USDOC did not mention this evidence in its 2005 likelihood determination, let alone
analyze it. In the Section 129 proceeding, Siderca offered evidence regarding the diversification of its
OCTG export markets following the imposition of the US order. 81 This evidence demonstrated that
Siderca had diversified its export markets and that the company was not subject to any other anti-
dumping measures, and that if the US order were revoked, dumping would not be likely to recur in the
United States. Siderca noted that its "sales processes underwent significant changes during the 1995 –

76 Letter from Siderca to USDOC, 7 December 2005, at 7 (ARG-19).
77 Siderca's Response to Questionnaire (30 Nov. 2005) at 2 (ARG-15).
78 Id. at 10.
79 Siderca's Response to Questionnaire (30 Nov. 2005) (Attachment 1, Siderca S.A.I.C., Financial
Statements at 30 June 2000, at 1) (ARG-15).
80 Siderca's Response to Questionnaire (30 Nov. 2005) (Attachment 1, Siderca S.A.I.C., Financial
Statements at 30 June 2000, at 2) (ARG-15).
81 Siderca's Response to Questionnaire (30 Nov. 2005) at 7-10 (ARG-15).

2000 period, reflecting the further diversification of Siderca's export markets and its strategy of
providing higher-value products and services to its customers throughout the world." 82

103. Siderca supported this statement with add itional positive evidence, highlighting that the
company had "developed an extensive network of international sales offices, and implemented a
strategy to strengthen and maintain its interna tional presence" and this included "a distribution
network with more than 20 offices around the world". 83 It also informed the USDOC of the
establishment of a series of long-term agreements wi th customers and international finishing plants"
from around the world.84

104. Siderca further explained that it had conso lidated the company's strategic positioning in
international markets during subsequent years, including by expanding from its traditional base in
Latin America, and increasing significantly its shipments to Africa and Russia, in 1996 in particular. 85
Siderca also noted how it "reacted to the economic and financial crises in the emerging markets of
Southeast Asia and Latin America by introd ucing flexible production programmes and the
development of made-to-order produc ts and services for its internati onal clients", and identified the
new stocking programs that the company had entere d into in Venezuela, Nigeria, Canada, Bolivia,
Thailand, Azerbaijan, Malaysia, and Ecuador.86

105. With respect to the Argentine market, Side rca explained that the company had introduced
regional stocking programs and "just- in-time" inventory management ag reements with several of its
Argentine customers, developing regional storage facilities in Las Heras, Barranquilla and Desfiladero
Bayo.87 The measures significantly reduced order and transport time for local customers, and
increased Siderca's ability to provide value added servi ces at the site of the oil and gas production.
Siderca explained that these agreements "proved to be important to Siderca and its customers during
the crisis in the oil market in 1998/99, allowing customers to increase efficiency and reduce costs". 88
Siderca summarized its evidence as follows:

As can be seen through this summary (and the discussion in the cited annual reports),
Siderca continued and intensified the pro cess of diversifying products, services, and
markets during the 1995-2000 period. By the end of the period under analysis, Siderca
exported its OCTG to approximately 60 countr ies. In some regions, such as Canada
and Africa, the increase in OCTG exports over this period was significant. During this
period, no other countries maintained anti- dumping measures against Siderca, nor has
Siderca been accused of dumping or other unfair trade practice during or after this
period.
89

106. This evidence is clearly probative of whether dumping would be likely to continue or recur.
Yet, there was no analysis by USDOC of this evidence. Indeed, these issues are not mentioned
anywhere in the 2005 likelihood determination. This is all the more striking given the Appellate
Body's admonishment that "a case-specific analysis of the factors behind a cessation of imports or a
decline in import volumes (when dumping is eliminat ed) will be necessary to determine that dumping
will recur if the duty is terminated".
90

82 Siderca's Response to Questionnaire (30 Nov. 2005) at 7 (ARG-15).
83 Id. at 7.
84 Siderca's Response to Questionnaire (30 Nov. 2005) at 7-8 (ARG-15).
85 See id. at 8.
86 Siderca's Response to Questionnaire (30 Nov. 2005) at 8 (ARG-15).
87 See id. at 8.
88 Siderca's Response to Questionnaire (30 Nov. 2005) at 8-9 (ARG-15).
89 Siderca's Response to Questionnaire (30 Nov. 2005) at 9 (ARG-15).
90 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 177.

107. Thus, the USDOC's analysis fell far short of the standards of the Agreement. In the end, there
was nothing in USDOC's 2005 likelihood determinati on relating to Siderca that constituted positive
evidence that revocation would be likely to lead to recurrence of dumping.

(b) USDOC's Conclusion That Acindar Would Be Likely to Dump Was Inconsistent with
Article 11.3

108. As a preliminary matter, the USDOC's findings regarding Acindar are completely at odds
with the standard established by Article 11.3 of the Anti-Dumping Agreement. The USDOC made
what seems to be a prospective ("likelihood") determination about past sales. That is USDOC
made findings about what was "likely" to have ha ppened during the sunset review period (1995 to
2000). This is not the standard that is established by Article 11.3. That USDOC used the wrong
standard is plainly evident from the statements in USDOC's Section 129 Determination:
• "…we find that Acindar likely was dumping subject OCTG during the original sunset
period."
91
• "The combination of Acindar selling in the United States at below market prices at
the end of the sunset period and the depr essed OCTG market indicates that Acindar
likely was dumping significantly in the US market."
92
• "… we find it likely that Acindar's US sales of OCTG during the original sunset
review were at dumped prices."
93

109. These statements demonstrate the flawed approach by USDOC to its Article 11.3
determination. As noted above, nowhere does the Anti-Dumping Agreement discuss the concept of
"likely" dumping that occurred in the past. Article 11.3 uses the phrase "likely" to describe the
prospective, counterfactual determination that must be made if a WTO Member intends to extend an
anti-dumping measure beyond five years: it must find "that the expiry of the duty would be likely to
lead to continuation or recurrence of dumping and injury." The determination of whether dumping
existed in a past period is governed by Articles 2 and 9 (which incorporates the substantive rules of
Article 2), neither of which mentions the possib ility of a determination of "likely" dumping with
respect to past sales.

110. The Department noted that Acindar's submi ssion "failed to include any data adequate to
calculate costs for the subject merchandise," 94 and concluded that "it did not have usable cost data for
Acindar."95

111. The Department thus relied on "usable price data" for Acindar. The specific import prices of
Acindar's OCTG were based on US Customs and Border Protection (CBP) data. These prices were
considered by the USDOC to be too low when comp ared to observed selling prices in the US market,
as reported in a publication known as Preston Pipe & Tube Report.
96 The Department concluded:
"Our analysis indicates that Acindar's US selling pr ices during the sunset period were substantially
lower than prevailing US market prices for the corresponding OCTG products." 97

91 USDOC Section 129 Determination at 7 (ARG-16).
92 USDOC Section 129 Determination at 7-8 (ARG-16).
93 USDOC Section 129 Determination at 10 (ARG-16).
94 USDOC Section 129 Determination at 6 (ARG-16).
95 USDOC Section 129 Determination at 7 (ARG-16).
96 USDOC Section 129 Determination at 7 (ARG-16).
97 USDOC Section 129 Determination at 7 (ARG-16).

112. The USDOC's comparison of pricing da ta based on a commercial publication does not
constitute an objective examination of informati on and is not positive evidence to support a WTO-
consistent determination th at dumping would be likely to continue or recur. First, Article 2 does not
define dumping in terms of a comparison between export prices and market prices prevailing in the
market of the importing country . It is a basic principle of Article 2 – and Article VI of GATT 1994
– that dumping is defined by the comparison of the export price to a normal value in the country of
export (or to another export price, or to a constructed value). The USDOC provides no explanation
why it is probative evidence of "likely" dumping.

113. Second, USDOC's comparison of Acindar's US shipments to prevailing US market prices did
not involve any product-specific comparison. Rather, the USDOC compared prices for specific
Acindar transactions to prices of "carbon casing, welded" as reported by Preston Pipe & Tube
Reports. However, that publication does not repor t prices by specific size of pipe, and it does not
discriminate between plain end and casing that is thr eaded and coupled. As Siderca explained in its
responses, these variables affect cost and price, and any comparison that does not account for these
differences is suspect. These facts are well known to USDOC. There was no control for any of the
physical characteristics of the products being co mpared which (as explained in submissions by
Siderca) affect the price and cost of OCTG products.98

114. Also, the prices reported in Preston Pipe & Tube Report are prices to the final customers in
the United States; that is, they are prices reported on the basis of a specified delivery point in the
United States. The prices that USDOC obtained from USCBP presumably are stated on a different
basis; most likely, FOB port of export, which in the case of Acindar would be Argentina. The record
of the Section 129 proceeding contains no indication that USDOC exercised any care to eliminate the
obvious distortion that would be implicit in any such comparison.

115. In short, the comparison described by the Department as supporting its determination of
"likely" dumping does not even resemble the notion of "dumping" under Article 2. The record does
not reveal any attempt by USDOC to ensure that the prices it reviewed related to the same products
within the specific categories, or that basic diffe rences in points of sale and transportation were the
same. The USDOC never even asked Acindar any qu estions about the observed prices, either of its
exports or the average US prices of the OCTG product groupings.

116. Moreover, there was no factual basis for inferring that Acindar was "likely dumping" during
the original sunset period. Acindar was never investigated during the original investigation, and the
company had no prior history of dumping. As Acindar explained, it is principally a producer of steel
long products (e.g., bars, wire rod, structural steels), and the company did not even produce any
OCTG until 1998, more than half-way through the sunset review period.
99 Acindar was never a
significant producer of OCTG, and its OCTG pr oduction was inconsequential in terms of the
company's total production, representing less than one per cent of Acindar's total production during
this time.

117. The USDOC also relied on the losses shown on Acindar's financial statements, and an
ambiguous statement in the financial statemen ts which the USDOC cited as support for the
proposition that Acindar was willing to dump its produc ts on export markets in order to stabilize its
production. The USDOC quoted the following from Acindar's 2000 financial statement regarding the
company's marketing strategy: "Acindar's strategy has been and will continue to be to focus on the
Argentine market while using the export market to stabilize its overall sales volume during periods of

98 See Siderca's Response to Questionnaire (30 Nov. 2005) at 4 (ARG-15) ("While Siderca has reported
the cost data for the product categories defined by the Department, Siderca would like to stress that the data for
such broad product groupings is of limited value from a cost and commercial point of view.").
99 Acindar's Response to Questionnaire (30 Nov. 2005) at 1 (ARG-14).

slowdown in domestic economic activity." 100 Using export markets to "stabilize overall sales" during
periods of slowdown is hardly tantamount to dumping.

118. The USDOC makes the following other points based on Acindar's fiscal year 2000 financial
statements:
• "Fiscal 1999 net sales were 16.8 per cent lower than fiscal 1998; sales for fiscal 2000
fell another 11.8 per cent from fiscal 1999;"
• "Cost of sales, administrative and selling expenses, and depreciation and
amortization, as a percentage of net sales, all increased in fiscal 1999 compared to
fiscal 1998 levels, and increased again in fiscal 2000 from 1999 levels;"
• "Operating income decreased from 12.5 per cent in fiscal 1998 to 3.8 per cent in
1999, and to 0.3 per cent in 2000;" and
• "Acindar suffered losses of Argentine pesos (Ps.) 28.3 million in fiscal 1999, and of
Ps. 96.9 million in fiscal 2000. These losses contrast markedly with the Ps. 38 million
profit Acindar reported for fiscal 1998."101

119. As noted above, Acindar is principally a producer of steel long products. Acindar's OCTG
production was inconsequential in terms of the comp any's total production, representing less than one
per cent of Acindar's total production during this tim e. Therefore, Acindar's financial statements
cannot be considered as positive evidence to suppor t USDOC's determination that Acindar would be
likely to dump OCTG in the US market in the event of revocation of the order.

120. In addition, the USDOC either missed or c hose to ignore information on the record that
suggested that the inferences that it drew from the financial statements as a whole were not
representative of the pipe and structural division of Acindar. As demonstrated in the financial
statements placed in the record, this division posted results that were considerably different from the
company as a whole. While the company financial statements showed a loss of $28.3 million in 1999,
the tube and structural division showed positive net income of $21.3 million. The same is true for
2000, when the net income of $17.8 million from this division compared favourable to the overall
company loss of $96.8 million.
102

121. In summary, the USDOC's treatment of Acinda r's information reveals a rush to judgment
rather than an objective assessment of positiv e evidence and reasoned decision making. The
determination of likely dumping is not consistent with the standards set forth in Article 11.3.

100 USDOC Section 129 Determination at 10-11 (ARG-16) (quoting Acindar's 2000 financial statement
at 12).
101 USDOC Section 129 Determination at 10 (ARG-16).
102 See Letter from Skadden, Arps, Slate, Meagher & Flom LLP to USDOC, 2 Dec. 2005, Exhibit 5 at
F-75 and F-75 (Acindar Consolidated Financial Statements) (ARG-27).

2. The USDOC's Inference That Dumping Would Be Likely In the Event of Revocation of
the Order Because of the Volume Decline is Inconsistent With Article 11.3

122. As it had in 2000, in 2005 the USDOC again relied on the inference that dumping would be
likely to continue based on the decrease of import volumes after the imposition of the order. The
USDOC asserted that the original WTO Panel in this dispute never made any finding with respect to
USDOC's inference relating to low volume. 103 The Section 129 Determination confirmed the lack of
any analysis on the issue of volume, and highlight s that the USDOC simply returned to the same
inference from its 2000 sunset determination:

In assessing likelihood, we also rely on our previous finding regarding the volume of
imports of subject merchandise for the period before and after the issuance of the
antidumping duty order. In the original s unset review, we found that after imposition
of the order, import volumes significantly decreased from pre-order levels. Declining
import volumes after, and apparently resulting from, imposition of an antidumping duty
order, indicate that exporters would need to dump to sell at pre-order levels.
104

123. The Appellate Body has reaffirmed that the administering authority cannot rely on the
cessation of imports or on a volume decline as a ba sis for a WTO-consistent likelihood determination
without "a case-specific analysis of the factors behind a cessation of imports or a decline in import
volumes".
105 As the Appellate Body has stated, there are many factors that can reasonably explain a
volume decline or the cessation of imports in the wake of anti-dumping measure:

The cessation of imports in the second scenar io and the decline in import volumes in
the third scenario could well have been cau sed or reinforced by changes in the
competitive conditions of the market-place or st rategies of exporters, rather than by the
imposition of the duty alone. Therefore, a case-specific analysis of the factors behind a
cessation of imports or a decline in import volumes (when dumping is eliminated) will
be necessary to determine that dumping will recur if the duty is terminated.
106

124. During the Section 129 proceed ing, the Argentine exporters (1) explained the reason for the
volume decline during the sunset period of review, (2) established that Acindar was only a minor
producer, and (3) showed that Siderca had diversif ied its export markets after the imposition of the
order and that the company performed quite well without exporting to the US market. 107 T h e
USDOC's 2005 likelihood determination does not even address these arguments, which explained the
reason for the reduction in Argentine OCTG imports into the United States.

125. As stated above, the Appellate Body reaffirmed in US - OCTG from Mexico that in the
context of declining volumes, it is insufficient to rely on presumptions or conjecture as to a company's
ability to ship to the US market without dumping:

If the dumping had ceased soon after the issuance of the order, and there was no
dumping or there were no imports for a substa ntial period before the sunset review, the
investigating authority will need credible evidence to come to the conclusion that
dumping will "recur" if the anti-dumping duty order is revoked. A respondent party
may have the responsibility to introduce relevant evidence in its favour, but the
investigating authority also has a duty to seek information to ensure that its

103 USDOC Section 129 Determination at 2 n.4 (ARG-16).
104 USDOC Section 129 Determination at 11 (ARG-16).
105 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 177.
106 Appellate Body Report, US - Corrosion-Resistant Steel Sunset Review, para. 177.
107 See Siderca's Response to Questionnaire (30 Nov. 2005) at 7-10 (ARG-15)

determination rests on a sufficient evidentiary foundation. An affirmative determination
cannot rest merely on a presumption, as envisaged under scenario (b) or (c), that the
cessation of dumping or of imports was due solely to the anti-dumping duty order.108

126. Yet, the USDOC did nothing to explore the r eason for the volume decline, or to address the
Argentine producers' comments regarding volume. In stead, contrary to the rulings of the Appellate
Body, the USDOC simply presumed that a volume decline after the imposition of an order is the
result of a company's inability to participate in the US market without dumping.

127. As stated earlier, the Appellate Body stated that it did not believe that historical dumping
margins or import volumes could always be presumed to constitute sufficient evidence of likely
dumping:

We would have difficulty accepting that dumping margins and import volumes are
always 'highly probative' in a sunset review by USDOC if this means that either or both
of these factors are presumed, by themselves, to constitute sufficient evidence that the
expiry of the duty would be likely to lead to continuation or recurrence of dumping.109

128. The Appellate Body distinguished evidence of continued dumping margins – which, it noted,
might in certain instances be sufficient evidence of likely dumping – from import volumes:

Such a presumption might have some validity when dumping has continued since the
duty was imposed (as in the first scenario id entified in Section II.A.3 of the Sunset
Policy Bulletin), particularly when such dumping has continued with significant
margins and import volumes. However, the second and third scenarios in Section
II.A.3 relate to the situation where there is no dumping (either because imports ceased
or because dumping was eliminated after the duty was imposed). The cessation of
imports in the second scenario and the dec line in import volumes in the third scenario
could well have been caused or reinforced by changes in the competitive conditions of
the market-place or strategies of exporters, rather than by the imposition of the duty
alone. Therefore, a case-specific analysis of the factors behind a cessation of imports
or a decline in import volumes (when dumping is eliminated) will be necessary to
determine that dumping will recur if the duty is terminated.
110

129. The Appellate Body thus confirmed that the cessation or decline of imports alone would not
be sufficient to support an affirmative likelihood de termination, without an analysis of the causes
behind the cessation or decline in imports. Moreover, with respect to continued dumping margins, the
Appellate Body's statement is in the context of "significant margins and import volumes".

130. As noted above, however, Siderca provide d evidence showing that the company had
diversified its markets following the imposition of th e order, and that this explained the reduction in
Argentine OCTG imports into the United States. Siderca observed that by the end of the sunset
period, the company "exported its OCTG to approximately 60 countries. In some regions, such as
Canada and Africa, the increase in OCTG exports over this period was significant. During this period,
no other countries maintained anti-dumping measures against Siderca, nor has Siderca been accused
of dumping or other unfair trade practice during or after this period".
111

108 Appellate Body Report, US - OCTG from Mexico, para. 199.
109 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 177.
110 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 177.
111 Siderca's Response to Questionnaire (30 Nov. 2005) at 9 (ARG-15).

131. There is no analysis of this anywhere in the 2005 likelihood determinati on. This is all the
more striking given the Appellate Body's admonishment that "a case-specific analysis of the factors
behind a cessation of imports or a decline in im port volumes (when dumping is eliminated) will be
necessary to determine that dumping will recur if the duty is terminated". 112 As the Appellate Body in
Mexico OCTG explained:

Likewise, scenario (c) also could have many variations within it. This scenario deals
with situations where imports continue, but without dumping, and an affirmative
determination under this scenario is therefore a determination that dumping will "recur"
if the anti-dumping duty order is revoked. The underlying presumption in scenario
(c) is that, if import volumes had declined si gnificantly, it was due solely to the anti-
dumping duty order, and that, if the order were revoked, the company concerned would
resort to dumping to increase its import volumes. Such a presumption cannot be the
sole basis for a determination of "recurren ce" of dumping. A company's strategy and
ability to increase or decrease its exports to particular markets depend on a variety of
market conditions, such as, in particular, the opportunities available in different markets
and the competitive conditions in the market place. Therefore, unless all relevant
factors are taken into account, there may not be an objective evaluation in such cases of
the causes of the variations in import volumes in the importing Member's market.

Thus, the factual scenarios of the SPB must not be mechanistically applied. The
responding parties do have a responsibility to submit information and evidence in their
favour, particularly about their prici ng behaviour, import volumes, and dumping
margins. But the investigating authority h as a duty to seek out information on relevant
factors and evaluate their probative value in order to ensure that its determination is
based not on presumptions, but on a sufficient factual basis.113

132. USDOC's reliance on the decline in im port volume as a basis for its 2005 likelihood
determination violated Article 11.3 of the An ti-Dumping Agreement, and failed to bring the
United States into compliance with the rulings and recommendations of the DSB. The USDOC relied
on the decline in import volumes to disregard positiv e evidence and to make its affirmative likelihood
determination. In relying on the lower volume to the exclusion of the positive evidence, the USDOC
did not conduct a case-specific analysis of the fa ctors behind the decline, did not properly establish
the facts relevant to the likelihood determination, and did not objectively evaluate the matter.

D. THE USDOC'S SECTION 129 DETERMINATION WAS INCONSISTENT WITH ARTICLES 6.1,
6.2, 6.4, 6.5.1, 6.6, 6.8, 6.9 AND ANNEX II OF THE ANTI-DUMPING AGREEMENT

133. The conduct of the Section 129 proceeding, and the resulting determination, are inconsistent
with the obligations of the United States under the Anti-Dumping Agreement. The USDOC:

• failed to provide to the interested parties ample opportunity to present in writing all
evidence which they considered relevant, in violation of US obligations under
Article 6.1;
• failed to provide to interested parties a full opportunity for the defence of their
interests, in violation of US obligations under Article 6.2;

112 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 177.
113 Appellate Body Report, US - OCTG from Mexico, paras. 200-201.

• failed to provide timely opportunities for inter ested parties to see all information that
was relevant to the presentation of their case s, in violation of US obligations under
Article 6.4;
• failed to satisfy the requirements of Ar ticle 6.5.1 regarding the provision of non-
confidential summaries of confidential information;
• failed to satisfy the requirements of Artic le 6.6 by not ensuring the accuracy of
information that was relied on to the exclusion of other more probative evidence;
• failed to follow the requirements of Article 6.8 and Annex II; and
• failed to inform interested parties of the essential facts under consideration that
formed the basis for the decision, in violation of US obligations under Article 6.9.

134. The obligations of Article 6 apply to sunset reviews. Article 11.4 of the Agreement provides
in part that "[t]he provisions of Article 6 regarding evidence and pr ocedure shall apply to any review
carried out under this Article." The Appellate Body has also confirmed that "claims under Article 6
may be made in relation to sunset review determ inations on the basis of the cross-reference to
Article 6 found in Article 11.4."114

135. Accordingly, the obligations of Article 6 of the Agreement applied to the USDOC
Section 129 Determination in this case.

136. The US violations of Article 6 are particularly egregious in light of the representations made
by the United States to the Article 21.3(c) Arbitr ator regarding the time it said it required to
implement the DSB rulings. The Arbitral Award noted that:

The United States argues that the time required to carry out these procedural steps in
the two phases of implementation demonstrates the need for a 15-month
implementation period in this dispute…. In the second phase, the USDOC also needs
sufficient time to ensure that it complies with its obligations of transparency and due
process under Articles 6 and 12 of the Agreement on Implementation of Article VI of
the General Agreement on Tariffs and Trade 1994 (the "Anti-Dumping Agreement").
The United States argues that, in accordance w ith previous arbitration awards, this
should include time to obtain and analyze in formation from interested parties, even
though this is not expressly required by statute or regulation.
115

137. Thus, after having represented to a WTO Arbitrat or that it needed "sufficient time to ensure
that it complies with its obligations of transparen cy and due process", the United States proceeded to
ignore these obligations, as discussed below.

114 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 239.
115 Award of the Arbitrator, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country
Tubular Goods from Argentina, Arbitration under Article 21.3(c) of the DSU, WT/DS268/12, 7 June 2005,
para. 10.

1. The USDOC failed to provide to intereste d parties ample opportunity to present in
writing all evidence which they considered relev ant, in violation of US obligations under
Article 6.1

138. Article 6.1 of the Anti-Dumping Agreement provides that:

(a) All interested parties in an anti-dumping investigation shall be given notice of the
information that the authorities require and ample opportunity to present in writing all
evidence that they consider relevant in respect of the investigation in question.

139. This obligation has been read broadly by the Appellate Body to provide fundamental due
process rights to responding parties. Indeed, referring to Articles 6.1 and 6.2 in the context of the
present dispute, the Appellate Body stated that:

(b) These provisions set out the fundamental due process rights to which interested
parties are entitled in anti-dumping investiga tions and reviews. Articles 6.1 and 6.2
require that the opportunities afforded inter ested parties for presentation of evidence
and defence of their interests be "ample" and "full", respectively. In the context of
these provisions, these two adjectives suggest there should be liberal opportunities for
respondents to defend their interests.
 116

140. In the recent case of Mexico – Rice , the Appellate Body interpreted the parallel provision in
the SCM Agreement in a similar manner:

(c) [W]e are of the view that, like Article 6 of the Anti-Dumping Agreement, Article 12
of the SCM Agreement as a whole "set[s] out evidentiary rules that apply throughout
the course of the … investigation, and provi de[s] also for due process rights that are
enjoyed by 'interested parties' throughout … an investigation" … This due process
obligation—that an interested party be permitted to present all the evidence it
considers relevant—concomitantly requir es the investigating authority, where
appropriate, to take into account the information submitted by an interested party.117

141. The Panel in Guatemala – Cement II stressed that "Article 6.1…requires that interested
parties shall have 'ample' opportunity to present evidence and 'full' opportunity to defend their
interests."
118 The Panel in US – Corrosion-Resistant Steel Sunset Review summarized the law
succinctly: "Articles 6.1 and 6.2 make it clear that interested parties have a broadly-defined right to
submit evidence to the investigating authority dur ing a sunset review and are entitled to a full
opportunity for the defence of their interests."
119

142. It is important to note that Article 6.1 must be read in a conjunctive and cumulative manner:
all interested parties must be given notice of the information which the authorities require and ample
opportunity to present in writing all evidence which they consider relevant. A breach of either of
these rights will establish a violation of Article 6.1.

116 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 241.
117 Appellate Body Report, Mexico - Definitive An ti-Dumping Measures on Beef and Rice ,
WT/DS295/AB/R, adopted on 20 December 2005, para. 292 ("Mexico Rice") (original emphasis).
118 Panel Report, Guatemala – Definitive Anti-Dumping Measures on Grey Portland Cement from
Mexico, WT/DS156/R, adopted 17 November 2000, para. 8.119 ("Guatemala – Cement II").
119 Panel Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant
Carbon Steel Flat Products from Japan , WT/DS244/R, adopted 9 January 2004, para. 7.255 (" US - Corrosion-
Resistant Steel Sunset Review").

143. During the arbitration under DSU Article 21.3(c) on the reasonable period of time for the
United States to implement the DSB rulings in this dispute, the United States enumerated an extensive
– and non-exhaustive – list of procedural steps that it would be required to undertake, including the
following:

(d) During this 15-month period, the Office of the United States Trade Representative
("USTR") and Commerce expect to take – a nd have taken – steps, as detailed below,
that include:

(e) … Phase 2 - Issuance by Commerce of a New Determination of Likelihood of
Continuation or Recurrence of Dumping

(f) … approximately two months for Commerce to consider what information is needed
from parties; draft and send questionnaires, if appropriate; provide for extensions, if
requested; draft and send supplemental questi onnaires, if necessary; review, analyze,
and respond to responses; verify information from respondents, if appropriate; issue a
preliminary redetermination;

(g) approximately one month to allow interested parties to submit comments to
Commerce, including through a hearing, on preliminary redetermination;

(h) one month for Commerce to review, analy ze, and respond to comments and make any
appropriate changes to its analysis before issuance of final redetermination…. 120

144. Despite this US assertion to the WTO of the due process rights of the responding parties, none
of these steps ever took place except for the initial questionnaire. Specifically, USDOC:
• failed to issue supplemental questionnaires, despite the fact that it had some questions
about the information submitted;
• failed to issue a preliminary redetermination;
• failed to establish a schedule to allow interested parties to submit comments,
including rebuttal comments, to USDOC;
• failed to request clarification or addi tional documentation from the responding
parties; and
• failed to hold a hearing.

145. The interested parties thus had little opportunity – let alone "ample" or "full" opportunity – to
present in writing all evidence that they considered to be relevant for the Section 129 Determination.
The United States represented to Argentina in the Artic le 21.3 arbitration that it would engage in a
multi-stage process in which information would be developed, refined, a nd debated through written
and oral argument. Instead, the USDOC provided a "black box" – information entered, and a decision
came out. No argument; not even notice that its plan s had changed and that parties would not have an
opportunity to provide written and oral argument. The failure of the United States to accord basic due
process rights to the interested parties fell far short of the requirements of Article 6.1.

120 United States – Sunset Reviews of Anti-dumping Measures on Oil Country Tubular Goods from
Argentina (WT/DS268): Arbitration Under Article 21.3(c) of the DSU , Submission of the United States,
22 April 2005, para. 4. Available from the Web site of the United States Trade Representative: www.ustr.gov.

2. The USDOC failed to provide to interested parties a full opportunity for the defence of
their interests, in violation of US obligations under Article 6.2

146. Article 6.2 of the Anti-Dumping Agreement provides in part that:

(a) 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 interest ed parties to meet those parties with
adverse interests, so that opposing views may be presented and rebuttal arguments
offered…. Interested parties shall also have the right, on justification, to present other
information orally.

147. As noted above, the Appellate Body has char acterized Article 6.2 as one of the "fundamental
due process rights" of the Anti-Dumping Agreement, which requires interested parties to be given a
"full" opportunity for the defence of their interests.

148. The lack of a hearing will violate the specific obligation in Article 6.2 to allow interested
parties to "meet" parties with adverse interests, and to "present … information orally." Indeed, in the
present dispute, the lack of a hearing was one of the bases on which the Appellate Body invalidated
the waiver provisions:

(b) [T]he respondent will … be denied any opportunity to confront parties with adverse
interests in a hearing, notwithstanding this respondent's clear expression of interest in
participating in the sunset review. As a result, this respondent is denied its rights,
pursuant to Article 6.2, to the "full opportunity for the defence of [its] interests.
121

149. In addition, the original Panel also f ound that the USDOC's likelihood of dumping
determination was inconsistent with Article 6.2 because "Siderca was subjected to a procedure that
fell short of the requirements of Article 6.2 of the Agreement in respect of hearings."
122

150. The Panel in this dispute referred to the "the explicit provision of Article 6.2 that hearings
have to be arranged when so requested by interested parties…". 123 Thus, the lack of a hearing in a
sunset review will breach Article 6.2.

151. As noted above, the procedural defects in the conduct of the Section 129 proceeding
established a violation of Article 6.1. In the contex t of this case, the defects also establish a violation
of Article 6.2, in that the interested parties were by no means provided with a "full" opportunity to
defend their interests. The lack of a hearing duri ng the Section 129 proceeding violated the specific
obligation in Article 6.2 to allow interested parti es to "meet" parties with adverse interests, and to
"present … information orally".

152. Thus, USDOC violated both the general and speci fic obligations of Article 6.2. It breached
the general obligation to provide interested parties with a full opportunity to defend their interests, and
the specific obligation to provide a hearing.

121 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 246.
122 Panel Report, US – Oil Country Tubular Goods Steel Sunset Reviews , paras. 7.235; see also
para.8(1)(d)(i).
123 Panel Report, US – Oil Country Tubular Goods Sunset Reviews, para. 7.235.

3. USDOC failed to provide timely opport unities for interested parties to see all
information that is relevant to the presentation of their cases, in violation of US
obligations under Article 6.4

153. Article 6.4 of the Anti-Dumping Agreement provides that:

(a) The authorities shall whenever practicable provide timely opportunities for all
interested parties to see all information that is relevant to the presentation of their
cases, that is not confidential as defined in paragraph 5, and that is used by the
authorities in an anti-dumping investigation, and to prepare presentations on the basis
of this information.

154. In EC – Pipe Fittings , the Appellate Body discussed the sc ope of the obligations imposed by
Article 6.4:

(b) Article 6.4 requires that, "whenever prac ticable", investigating authorities provide
timely opportunities for all interested parties to see and prepare presentations on the
basis of "all information" that meets the following criteria:
(c) the information is relevant to the pr esentation of the interested parties' cases;
(d) the information is not confidential as defined in Article 6.5; and
(e) the information is used by the aut horities in an anti-dumping investigation.124

155. The Appellate Body made clear that whether or not the information is "relevant" is to be
determined from the perspective of the inter ested parties, not the investigating authority. 125 It also
stated that:

One of the stated objectives of the disclosure of information required under Article 6.4
is to allow interested parties "to prepare pr esentations on the basis of this information".
The "presentations" referred to in Article 6.4, whether written or oral, logically are the
principal mechanisms through which an exporter subject to an anti-dumping
investigation can defend its interests.
 126

156. Yet, the Department did not conduct the Sec tion 129 proceeding in a manner consistent with
the requirements of Article 6.4. It clearly was "practicable" for the USDOC to allow the parties to see
all the information relevant to the presentation of their case. As discussed above, during the
arbitration to establish a reasonable period of time for US implementation, the United States asserted
that the requested 15 months was needed, in part, so that the United States could comply with the
procedural requirements of Article 6 of the Anti-Dumping Agreement.
127 Yet, the United States failed
to "provide timely opportunities for parties to see all information that is relevant to the presentation of
their cases." This information was used by USDOC in the Section 129 proceeding. The Argentine
exporters were not given a sufficient opportunity "to prepare presentations on the basis of this
information."

124 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. 142 ("EC - Pipe Fittings").
125 Appellate Body Report, EC - Pipe Fittings, para. 145.
126 Appellate Body Report, EC - Pipe Fittings, para. 149.
127 Award of the Arbitrator, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country
Tubular Goods from Argentina, Arbitration under 21.3(c) of the DSU, WT/DS268/12, 7 June 2005, para. 10.

157. Indeed, in USDOC's Section 129 Determination, there are several references to additional
USDOC memoranda to the file 128, several of which are memoranda dated 16 December 2005 ( i.e., the
same date as the Section 129 Determination). Th ree of the memoranda are public documents, and
three of these memoranda are proprietary documents with public summaries or redactions. The public
versions of the proprietary documents indicate that the vast majority of the content is "not susceptible
to bracketing".129

158. Four of the five memoranda are styled as "Memorandum to The File From Mark Flessner,
Case Analyst, Re: In the Matter of the S ection 129 Determination on the Antidumping Duty
Determination With Respect to Oil Country Tubul ar Goods (OCTG) from Argentina, pursuant to
WTO Appellate Body Report WT/DS268/ADR (2004) and Section 129(b) of the Uruguay Round
Agreements Act" and, specifically, relate to (1 ) "Information from Preston Publishing Company,
Inc."; (ARG-22) (2) "Inconsistencies in data re ported by Acindar" (public version of proprietary
document) (ARG-23); (3) "Inconsistencies in data reported by Siderca S.A.I.C." (public version of
proprietary document) (ARG-21); and (4) "Securiti es and Exchange Commission Filings of Domestic
OCTG Producers (ARG-24)". The fifth memorandum is entitled, Memorandum to The File From
Fred Baker, Case Analyst, Through Mike Heaney, Te am Leader, Robert James, Program Manager, In
the Matter of the Section 129 Determination on the Antidumping Duty Determination With Respect to
Oil Country Tubular Goods (OCTG) from Argent ina, pursuant to WTO Appellate Body Report
WT/DS268/ADR (2004) and Section 129(b) of the Uruguay Round Agreements Act: Information for
the Record (ARG-25)".

159. These documents, or the underlying analysis, must have been prepared prior to 16 December,
yet the parties were never advised of their existence. 130 Nor did the Department offer any opportunity
to the parties during the course of the proceeding to review this information or provide comments on
the accuracy or relevance of the information and argument.
131

160. With respect to the EC – Pipe Fittings criteria, each of the five USDOC file memoranda
contained information that was used by USDOC in the Section 129 proceeding and that served as the
basis for its Section 129 Determination. As indicat ed above, at least three of the memoranda clearly
satisfy the criteria established by the EC – Pipe Fittings panel: (a) the information is directly relevant
to the presentation of the Argentine interested parties' cases; (b) the information is not confidential as
defined in Article 6.5; and (c) the information was used by USDOC in the Section 129 proceeding and
was identified in USDOC's Section 129 Determination.

128 Section 129 Determination at 4-5, n. 10 (referencing Memorandum to File, dated
16 December 2005); at 7 ("This compar ison, which includes Acindar's busine ss proprietary information, is set
forth in the memorandum to the file dated 16 December 2005"); at 8 ("A complete discussion of these
discrepancies necessitates discussion of Siderca's business proprietary information; for specific examples, see,
the Department's Memorandum to the File dates 16 December 2005); and at 11 (referencing financial statements
of Lone Star, Maverick, and North St ar as set forth in the memorandum to the file dated 16 December 2005)
(ARG-16).
129 See, e.g., ARG-18, Appendix II; ARG-21; ARG-23, Appendix I.
130 Letter from Siderca to USDOC, 21 December 2005 (ARG-26) ("We are dismayed that the
Department relied on this information without first disc losing it to the parties. These documents, or the
underlying analysis, must have been prepared prior to 16 December, yet the parties were never advised of their
existence.").
131 Under the US system, information classified as "business proprietar y" is released to authorized
representatives of the parties (typically lawyers or cons ultants) under the terms of an "Administrative Protective
Order" ("APO"). Thus, the US system is not one in which proprietary or confidential information is exempt
from disclosure within the terms of Article 6.4 of th e Anti-Dumping Agreement. Authorized representatives
have a right to, and in fact do, receive confidential information in the US system.

161. Although Siderca's legal counsel ultimately obtained copies of the proprietary documents
identified in USDOC's Section 129 Determination, it was only after USDOC issued the determination
in December 2005. In accordance with the terms of the administrative protective order ("APO") that
was in place for the entire Section 129 proceedin g, Siderca's counsel was entitled to access to
proprietary documents released under the APO. Nevertheless, prior to its request for disclosure of the
proprietary documents that formed the basis for USDOC's 2005 likelihood determination, the
information had not been provided to the parties.

162. Moreover, the unsolicited comments filed by the Petitioners in the Section 129 proceeding
further compounded the impact of the US breach of Article 6.4. The USDOC did not request any
comments or information from Petitioners, yet the Petitioners filed a letter dated 30 November 2005
(the same response date as the deadline for the responses of the Argentine exporters who were
responding to the USDOC questionnaire that was dir ected to them) in which data are suggested for
price comparisons that would then be used to support a conclusion regarding likely dumping.
Petitioners' letter concludes – without ever seeing the cost data that was being filed the same day –
that "it is almost a certitude that a comparison of the AUVs with Siderca's costs will show that Siderca
was engaging in dumping OCTG on a global basis during the POR".
132 Furthermore, the Petitioner's
letter references confidential data provided to them by the USDOC; the same confidential data that
was made available to Siderca only on 28 November, two days before the Pe titioners letter in which
its conclusions are stated so emphatically. All of this occurs without any communication from the
USDOC as to how it will use the information solicited by Siderca, what procedures will be followed
to analyze the information, and how the parties w ill be permitted to have access to and comment on
the essential facts being used by the USDOC to make its determination.

163. In the midst of this uncertainty, Siderca provided comments to demonstrate that Petitioners'
analysis was without merit and did not establish any positive evidence that dumping would be likely
to continue or recur.133 In the end, however, Petitioners' appr oach was no different from the approach
the Department took in the original sunset review, and the approach that it took in the Section 129
proceeding.

4. The USDOC failed to require certain int erested parties to submit non-confidential
summaries of their written submissions in the Section 129 proceeding in a manner so as
to permit the Argentine exporters to have a reasonable understanding of the substance
of the confidential information submitted, in violation of US obligations under
Article 6.5, and 6.5.1

164. Article 6.5.1 provides:

The authorities shall require interested parties providing confidential information to
furnish non-confidential summaries thereof. These summaries shall be in sufficient
detail to permit a reasonable understanding of the substance of the information
submitted in confidence. In exceptional circ umstances, such parties may indicate that

132 Letter from Skadden, Arps, Slate, Meagher & Flom LLP to the USDOC, 2 Dec. 2005 (Public
Version) at 4 (ARG-27). Despite having a 30 Novemb er 2005 date, Petitioner's letter was not served until
1 December, as accurately stated in the certificate of service. US Steel also availed itself of the rule allowing for
the public version to be filed and served one day later, so that a public version of the letter was not received until
late in the day on Friday, 2 December. Siderca's counse l sent the text of the public version immediately to
Siderca for review by company officials, with the entire submission sent by express courier to Argentina. Also,
public Annexes 2 and 3 were sent by facsimile on 5 December when it became apparent that the express
delivery had not yet arrived. Company officials analyzed the comments, developed and checked the information
being provided in this rebuttal, and reviewed this text for accuracy as quickly as possible.
133 Letter from Siderca to USDOC, 7 December 2005 (ARG-19).

such information is not susceptible of summary. In such exceptional circumstances, a
statement of the reasons why summarization is not possible must be provided.

165. The Panel in Korea – Paper AD Duties, concluded that "the KTC acted inconsistently with
Article 6.5 in the investigation at issue by not re quiring that good cause be shown with respect to the
information submitted in the applicati on which was by nature confidential".
134 S i m i l a r l y , i n
Guatemala-Cement II, the Panel found that Guatemala violat ed Article 6.5 by granting confidential
treatment to submissions by the petitioner even though Guatemala could present no evidence that the
petitioner had even requested confidential treatment.135

166. Here, the same problems exist. In this regard, the USDOC recognized that the Argentine
exporters viewed this as problematic. USDOC ack nowledged that "Siderca and Acindar also argue
that US Steel and IPSCO's treatment of information as business proprietary information hindered their
ability to respond effectively".136

167. With respect to Article 6.5.1, in particular, the Panel in Guatemala-Cement II found a
violation of that provision because there was no evidence demonstrating either that petitioner
provided a statement of reasons as to why summarization was not possible or that the Ministry even
requested such a statement.
137

168. During the Section 129 proceeding, Ar gentine exporter Acindar explained that:

At the outset, Acindar is concerned that its basic right to defend itself from the
allegations being made are being impaired by the manner in which the information is
being developed in this proceed ing. In US Steel's submission, claims for confidential
treatment appear to be so broad (either because of the Department's designation of
confidential treatment, or that by US Steel 's attorneys) that Acindar cannot even
understand the nature of the allegations. For example, on page 9, point B, US Steel's
letter states: "First, during 1999 and 2000, [ ]". It is difficult to
believe that no other information can be given regarding the allegedly confidential
information that follows the comma that would allow Acindar to understand the basic
nature of the allegation so that it ca n defend itself. US Steel provides no non-
confidential summary in sufficient detail so as to permit a reas onable understanding of
the substance of the information submitte d in confidence, nor does it provide any
justification for excluding completely this allegedly confidential information, which,
after all, relates to information that is now more than 5 – 6 years old. Therefore, the
Department must require US Steel to re-subm it its letter in a form that is consistent
with the regulations, and which will allow Acindar to at least understand the nature of
the allegation being made so that it can defend itself.
138

169. There was no response by USDOC to Acinda r's request. Thus, Acindar necessarily had to
confine its arguments to the public versions of the US industry's comments. Petitioners' comments
did not provide, in the words of Article 6.5.1, "sufficient detail to permit a reasonable understanding
of the substance of the information submitted in co nfidence". Moreover, there was no explanation as

134 Panel Report, Korea – Anti-Dumping Duties on Imports of Certain Paper from Indonesia ,
WT/DS312/R, adopted 28 November 2005, paras. 7.329-335, ("Korea – Paper AD Duties").
135 Panel Report, Guatemala - Cement II, paras. 8.207-223.
136 USDOC Section 129 Determination at 6 (ARG-16).
137 Panel Report, Guatemala - Cement II, paras. 8.207-223.
138 Letter from Acindar to USDOC, 6 December 2005 at 1 (ARG-28); see also Letter from Siderca to
USDOC, 14 December 2005 at 4 ("As a preliminary matter, IPSCO places its comments in brackets, depriving
Siderca officials of the ability to review the substance of the comments.") (ARG-29).

to why greater clarification could not be provid ed nor was it demonstrated that this was an
"exceptional circumstance" where the "information [was] not susceptible of summary".

170. Thus, as the Panel found in Guatemala-Cement II , in this case, the USDOC violated
Article 6.5.1 because there is no evidence demonstra ting either that petitioner provided a statement of
reasons as to why summarization was not possibl e or that the USDOC ev en requested such a
statement.139

5. The USDOC did not rely on Siderca's subm itted cost information, but USDOC first
failed to satisfy itself as to the accuracy of that information for purposes of their
findings, in violation of US obligations under Article 6.6

171. Article 6.6 provides:

Except in circumstances provided for in para graph 8, the authorities shall during the
course of an investigation satisfy themselve s as to the accuracy of the information
supplied by interested parties upon which their findings are based.

172. The obligation in Article 6.6 requires the administering authority to satisfy itself as to the
accuracy of the information upon which it relies to ma ke its findings. In this case, USDOC violated
this obligation. USDOC erroneously disregarde d information supplied by Siderca regarding the
company's cost of production for OCTG for the suns et period examined by the Department. USDOC
failed to act with a sufficient degree of diligence to satisfy itself that Siderca's information was not
probative for the likelihood inquiry. Regarding th e cost information submitted by Siderca, USDOC
merely offers a conclusory statement that it is "una ble to rely on the data for a likelihood analysis for
OCTG".
140 An authority acts inconsistently with th e requirements of Article 6.6 when it rejects
information and does not satisfy itself as to the accu racy of that information – especially when that
information has been offered to counter unsubstantiated inferences re lied on by the authority, and is
otherwise more probative of the likelihood of dump ing than the unsubstantiated inferences on which
the authority is basing its determination.

173. While the Panel in US - DRAMS observed that Article 6.6 does not require verification of all
information upon which the authority relies, and that there are many ways to "satisfy" oneself as to
the accuracy of information 141, one such way cannot be to simply assert, without sufficient
justification, that an authority will not rely on probative information in making a determination.
USDOC did not provide sufficient justification fo r its assertion that Siderca's reported information
was unreliable.

6. The USDOC failed to follow the requirements of Article 6.8 and Annex II of the Anti-
Dumping Agreement

174. Article 6.8 of the Anti-Dumping Agreement provides that:

In cases in which any interested party refuses access to, or otherwise does not
provide, necessary information within a reas onable period or significantly impedes
the investigation, preliminary and final de terminations, affirmative or negative, may

139 See Panel Report, Guatemala - Cement II, paras. 8.207-223.
140 USDOC Section 129 Determination at 9 (ARG-16).
141 Panel Report, United States – Anti-Dumping Duty on Dynamic Random Access Memory
Semiconductors (DRAMS) of One Megabit or Above from Korea, WT/DS99/R, adopted 19 March 1999,
paras. 6.74 – 6.82.

be made on the basis of the facts available. The provisions of Annex II shall be
observed in the application of this paragraph.

175. The provisions of Annex II, which must be observed in the application of Article 6.8, include
the following:

All information which is verifiable, which is appropriately submitted so that it can be
used in the investigation without undue difficulties, [and] which is supplied in a
timely fashion … should be taken into account when determinations are made….

….

[Paragraph 3]

Even though the information provided may not be ideal in all respects, this should not
justify the authorities from disregarding it, provided the interested party has acted to
the best of its ability.

….

[Paragraph 5]

If evidence or information is not accepted, the supplying party should be informed
forthwith of the reasons therefore, and s hould have an opportunity to provide further
explanations within a reasonable period, due account being taken of the time-limits of
the investigation. If the explanations ar e considered by the authorities as not being
satisfactory, the reasons for the rejection of such evidence or information should be
given in any published determinations.

….

[Paragraph 6]

If the authorities have to base their findings , including those with respect to normal
value, on information from a secondary source, including the information supplied in
the application for the initiation of the investigation, they should do so with special
circumspection. In such cases, the authorities should, where practicable, check the
information from other independent sources at their disposal, such as published price
lists, official import statistics and customs returns, and from the information obtained
from other interested parties during the investigation. It is clear, however, that if an
interested party does not cooperate and thus relevant information is being withheld
from the authorities, this situation could l ead to a result which is less favourable to
the party than if the party did cooperate.

[Paragraph 7]

176. In Mexico – Rice , the Appellate Body stressed that recourse to facts available is subject to
strict compliance with the conditions set out in Article 6.8 and Annex II. It began by noting that:

Article 6.8 provides that an investigating authority may base its determinations on the
basis of facts available where, inter alia , a respondent "does not provide … necessary
information within a reasonable period", subj ect to the conditions set out in Annex II,
entitled "Best Information Available in Term s of Paragraph 8 of Article 6". Among
these conditions is the obligation in paragra ph 1 of Annex II to inform the relevant
respondent that, if it fails to provide the necessary information, the agency will resort to
use of facts available. Paragraph 3 obliges an investigating authority to "take[] into
account" the information supplied by a respondent, even if other information requested
has not been provided by the respondent and will need to be supplemented by facts
available. Similarly, paragraph 5 prevents an investigating authority from rejecting the
information supplied by a respondent, even if incomplete, where the respondent "acted
to the best of its ability". Finally, paragraph 7 mandates, where an investigating
authority relies on data from a secondary source to fill in gaps resulting from a
respondent's failure to provide requested info rmation, that the investigating authority
examine such data "with special circumspection."
142

177. The Appellate Body then stressed that:

From these obligations, we understand that an investigating authority in an anti-
dumping investigation may rely on the fact s available to calculate margins for a
respondent that failed to provide some or a ll of the necessary information requested by
the agency. In so doing, however, the agency must first have made the respondent
aware that it may be subject to a margin calculated on the basis of the facts available
because of the respondent's failure to provide necessary information. Furthermore,
assuming a respondent acted to the best of its ability, an agency must generally use, in
the first instance, the information the respondent did provide, if any.

With respect to the facts that an agency may use when faced with missing information,
the agency's discretion is not unlimited. First, the facts to be empl oyed are expected to
be the "best information available". In this respect, we agree with the Panel's
explanation:

The use of the term " best information" means that information has to be not
simply correct or useful per se , but the most fitting or "most appropriate"
information available in the case at hand . Determining that something is "best"
inevitably requires, in our view, an evaluative, comparative assessment as the
term "best" can only be properly applie d where an unambiguously superlative
status obtains. It means that, for the conditions of Article 6.8 of the
AD Agreement and Annex II to be co mplied with, there can be no better
information available to be used in th e particular circumstances. Clearly, an
investigating authority can only be in a position to make that judgement
correctly if it has made an inherently comparative evaluation of the "evidence
available".

Secondly, when culling necessary information from secondary sources, the
agency should ascertain for itself th e reliability and accuracy of such
information by checking it, where practicab le, against information contained in
other independent sources at its dis posal, including material submitted by

142 Appellate Body Report, Mexico - Rice, para. 287 (original emphasis).

interested parties. Such an active appr oach is compelled by the obligation to
treat data obtained from secondary sources "with special circumspection".143

178. As noted below, the Section 129 Determina tion fell far short of these rigorous standards.

179. In its Section 129 Determination, the USDOC disregarded information submitted by Siderca,
and used instead "facts available" (although the Section 129 Determination did not use this term).

180. According to the USDOC, Acindar's submission "failed to include any data adequate to
calculate costs for the subject merchandise". 144 Therefore, the Department resorted to what it called
"usable price data" and compared "Acindar's US selling prices during the original sunset review
period with prevailing market prices in the United States during that same period".
145 Based on this
comparison, USDOC found that "Acindar likely w as dumping subject OCTG during the original
sunset review period".146

181. This treatment of Acindar is not consistent with the disciplines of Article 6.8 and Annex II of
the Agreement. Acindar explained that it did not have the requested information for two reasons.
First, it did not have any legal obligation as an Argentine company to reta in product-specific cost
information for such a long period of time. S econd, because it was never a significant producer of
OCTG and it was not currently (at the time of USDOC's request) an OCTG producer, it had not
retained the product-specific cost information a nd did not have a basis to reconstruct it. In
Argentina's view, these are reasonable explanations in light of the nature of the information requested
by USDOC, which, by any objective measure, pushe d the limits of reasonableness. Rather than
follow up with the company by trying to develo p other information, the USDOC resorted to a
comparison of questionable legitimacy, and drew conclusions in final form without the benefit of any
further comment.

182. With respect to Siderca, the USDOC stated th at this company "attempted to cooperate with
the Department's request for information". 147 However, the Department claimed to have "significant
problems with [Siderca's] allocation of costs, w ith respect to both OCTG production and all tubular
production" as well as "methodological discrepancies with the estimates submitted by Siderca". 148
Therefore, the USDOC stated that:

[F]or both Siderca and Acindar, we have fina ncial statements from the original sunset
review period that provide information on th e financial statuses of these companies.
This information establishes that the gl obal OCTG market was depressed during a
significant portion of the original sunset review period which suggests that prices
would continue to be low after the sunset period.

….

Given the weakened condition of Acindar during the original sunset review period,
including substantial losses during fiscal 1999 and 2000, we find it likely that Acindar's
US sales of OCTG during the original sunset review period were at dumped prices….
[W]e find (contrary to the implications of Siderca's argument) that Acindar was likely
to continue selling in the United States at dumped prices if the order were revoked.

143 Appellate Body Report, Mexico - Rice, paras. 288-289 (footnote omitted).
144 USDOC Section 129 Determination at 6 (ARG-16).
145 Id. at 7.
146 Id. at 7.
147 USDOC Section 129 Determination at 8 (ARG-16).
148 Id. at 8-9.

We find additional support for this conc lusion from a statement in Acindar's 2000
financial statement regarding its marketing strategy. Acindar states, "Acindar's strategy
has been and will continue to be to focus on the Argentine market while using the
export market to stabilize its overall sales volume during periods of slowdown in
domestic economic activity".149 [emphasis added by USDOC]

183. Yet the USDOC did not comply with the conditions set out in Article 6.8 and Annex II for
recourse to "facts available". Neither Acindar nor Siderca refused access to necessary information.
Moreover, neither company "significantly impeded the investigation," and the USDOC has not
claimed otherwise. Both companies explained why they could not provide information requested, and
there was no indication from USDOC that it did not accept those explanations. Siderca's and
Acindar's explanations are objectively reasonable. In fact, they are consistent with the guidelines
national authorities should consider when developing information. As the Committee on
Antidumping Practices has stated:

In establishing the specific periods of data collection in a particular investigation,
investigating authorities may, if possible, c onsider practices of firms from which data
will be sought concerning financ ial reporting and the effect that this may have on the
availability of accounting data . . . .150

184. Similarly, the USDOC failed to comply with the obligations of Annex II:

• The information provided by Siderca was verifiable, and was appropriately submitted.
It could readily have been used by the USDOC in the Section 129 proceeding without
"undue difficulties." The Department was therefore required un der paragraph 3 of
Annex II to take such information into account in its Section 129 determination, but it
failed to do so.
• Even if, arguendo, the information provided by Siderca was not "ideal in all
respects", paragraph 5 of Annex II makes clear that this did not justify disregarding it,
provided the interested parties acted to th e best of their ability. The USDOC has not
claimed that either company failed to act to the best of its ability. Indeed, as noted
above, the Department expressly recognized that Siderca "attempted to cooperate
with the Department's request for information".151
• Some of the information sought by USDOC was 5-10 years old. The USDOC never
suggested that it was in any way unreasonable for Siderca not to have all of this data.
• Although some of the information submitted by Siderca was not accepted by the
USDOC, neither Siderca nor Acindar was "informed forthwith of the reasons
therefore" or given "an opportunity to provide further explanations within a
reasonable period…". Instead, the first time that these interested parties ascertained
that the USDOC was dissatisfied with th e information they provided was in the
Section 129 Determination itself, when it was too late to "provide further
explanations". The Department therefor e breached its obligations under paragraph 6
of Annex II.

149 USDOC Section 129 Determination at 9-10 (ARG-16).
150 Committee on Anti-dumping Practices, "Recommendation Concerning the Periods of Data
Collection for Antidumping Investigations," adopted 5 May 2000, G/ADP/6.
151 USDOC Section 129 Determination at 8 (ARG-16).

• There is no indication whatsoever th at the USDOC acted with "special
circumspection" within the meaning of paragraph 7. There is nothing in the
Section 129 Determination demonstra ting that the USDOC "check[ed] the
information from other independent sources at [its] disposal." DOC never even asked
Acindar to explain the general reference in its 2000 financial statement. Instead, it
assumed that it must be consistent with the notion that Acindar was likely to dump
OCTG in the US in the event of expiry of the measure.

185. Finally, the USDOC ignored the requirement to use the "best" information available. The
recourse to financial statements – and ambiguous asser tions taken out of context in those financial
statements – can in no way be considered as the "most fitting" or "most appropriate" information
available to the Department.

186. The USDOC therefore breached its obligations under Article 6.8 and Annex II.

7. The USDOC failed to inform interested part ies of the essential facts under consideration
which formed the basis for the Section 129 determination, in violation of US obligations
under Article 6.9 of the Anti-Dumping Agreement

187. Article 6.9 of the Anti-Dumping Agreement provides that:

The authorities shall, before a final determina tion is made, inform all interested parties
of the essential facts under consideration whic h form the basis for the decision whether
to apply definitive measures. Such disclosu re should take place in sufficient time for
the parties to defend their interests.

188. The importance of this provision was emphasized by the Panel in Argentina – Ceramic Tiles:

Article 6.9 anticipates that a final determin ation will be made and that the authorities
have identified and are considering the essential facts on which that decision is to be
made. Under Article 6.9, these facts must be disclosed so that parties can defend their
interests, for example by commenting on the completeness of the essential facts under
consideration.
152

189. The Panel in Korea – Paper AD Duties stressed that this disclosure had to be made before the
investigating authority had made its determination:

[T]he obligation under Article 6.9 is one th at requires the IA to make a one-time
disclosure and that is before a final dete rmination is made as to whether or not a
definitive measure will be applied.153

190. The USDOC did not inform the interested pa rties of the essential facts under consideration
that formed the basis for its decision. The S ection 129 Determination refe rs to additional USDOC
memoranda to file, several of which are dated December 16, 2005, the same date as the Determination
itself.
154 Two of the memoranda are public versions of proprietary documents, in which it is indicated

152 Panel Report, Argentina – Definitive Anti-Dumping Measures on Imports of Ceramic Floor Tiles from
Italy, WT/DS189/R, adopted 5 November 2001, para. 6.125.
153 Panel Report, Korea - Paper AD Duties, WT/DS312/R, adopted 28 November 2005, para. 7.204.
154 See USDOC Memoranda to the File from Mark Fles sner, Case Analyst, Re: In the Matter of the
Section 129 Determination on the Antidumping Duty Determination With Respect to OCTG from Argentina
(16 Dec. 2005): (1) Inconsistencies in data reported by Siderca, S.A.I.C. (ARG-21); (2) Information from
Preston Publishing Company (ARG-22); (3) Inconsiste ncies in data reported by Acindar (ARG-23); (4)

that the vast majority of the content is "not su sceptible to bracketing." Such documents were not
disclosed to the interested parties during the Section 129 proceeding.

191. Even if the public versions of these documents could be considered as sufficient to inform the
interested parties of the essen tial facts under consideration, quod non, the disclosure of the public
versions were not made "in sufficient time for the parties to defend their interests". As noted above,
five of these memoranda are dated December 16, 2005, the same date as the Section 129
Determination, even though they obviously must have been prepared in advance of that date. As
these documents were disclosed contemporaneously w ith the Section 129 Determination itself, they
were not provided to the interested parties before a final determination was made in the Section 129
proceeding.

192. Also, the USDOC did not issue any draft or preliminary determination, as it routinely does in
other Section 129 cases and as it said it would do in the arbitration pursuant to Article 21.3 of the
DSU. To apply the test set out in Korea – Paper AD Duties, such a preliminary determination would
have enabled the United States to "make a one-time disclosure … before a final determination is
made…". Instead, the United States made
no disclosure before the Section 129 final determination
was made. Moreover, the Departme nt provided no indication of what – if any – analysis it performed
on Siderca's information.

193. The United States thus violated its obligations under Article 6.9 to inform all interested
parties of the essential facts under consideration.

E. THE FAILURE OF THE UNITED STATES TO IMPLEMENT USDOC'S SECTION 129
DETERMINATION PRECLUDED THE OPPORTUNITY FOR THE ARGENTINE RESPONDENTS
TO SEEK JUDICIAL REVIEW IN US COURTS , IN VIOLATION OF US OBLIGATIONS UNDER
ARTICLE 13 OF THE ANTI-DUMPING AGREEMENT.

194. Article 13 of the Anti-Dumping Agreement provides that:

Each Member whose national legislation contains provisions on anti-dumping measures
shall maintain judicial, arbitral or administrative tribunals or procedures for the
purpose, inter alia, of the prompt review of administrative actions relating to final
determinations and reviews of determinations within the me aning of Article 11. Such
tribunals shall be independent of the aut horities responsible for the determination or
review in question.

195. The failure of the United States to implem ent USDOC's Section 129 Determination precluded
the opportunity for the Argentine r espondents to seek judicial review in US courts, in violation of
US obligations under Article 13 of the Anti-Dumping Agreement.

196. Section 129(b) of the Uruguay Round Agreements Act ("URAA") is the provision of US law
that governs US implementation of adverse WTO rulings in cases in which a determination by the
USDOC has been found to be WTO-inconsistent.
155 URAA Section 129(b) requires the USDOC,
pursuant to a written request from the US Trade Re presentative ("USTR"), to issue a determination
that would render USDOC's earlier action "not incons istent" with the findings of the WTO Panel or
the Appellate Body. Section 129(b)(1) provides that USTR "shall" consult with the USDOC and

Securities and Exchange Commission Filings of Dome stic OCTG Producers (ARG-24); USDOC Memorandum
to the File from Fred Baker, Case Analyst, through Mike Heaney, Team Leader, and Robert James, Program
Manager, In the Matter of the Section 129 Determination on the Antidumping Duty Determination With Respect
to OCTG from Argentina, Information for the Record (16 Dec. 2005) (ARG-25).
155 See 19 U.S.C.. § 3538(b) (ARG-30).

certain Congressional committees "[p]romptly after a report by a dispute settlement panel or the
Appellate Body is issued that contains findings that an action by the administering authority in a
proceeding under Title VII of the Tariff Act of 1930 is not in conformity with the obligations of the
United States under the Anti-Dumping Agreement…".
156

197. The US Statement of Administrative Action ("SAA") explains that the requirement to
promptly consult "is intended to ensure that the Trade Representative benefits from Commerce's
administrative and substantive expertise in the evaluation of a panel's findings and the development of
implementing action, if any".
157 The SAA continues:

The Administration expects that Commerce would provide the Trade Representative
advice on: (1) whether implementation of the findings is permissible under the
antidumping or countervailing duty law; (2) the implications for the administration of
the antidumping and countervailing duty laws of implementing the findings;
and (3) the most desirable method of impl ementing the findings and the time required
to do so.
158

198. Thus, the process of "implementing" a Section 129 determination under US law involves two
steps. First, USTR must direct USDOC to make a new determination. Once directed, USDOC must
issue a new determination. Second, USTR "may" (but is not required to) direct USDOC to implement
that determination:

The Trade Representative may, after consultin g with the administering authority and
the congressional committees under paragraph (3), direct the administering authority to
implement, in whole or in part, the determination made under paragraph (2).159

The provisions of Section 129(b) thus vest USTR with discretion as to whether the USDOC's
Section 129 determinations will be "implemented" within the meaning of US law. The URAA then
provides that the USDOC or USTR "shall pub lish in the Federal Register notice of the
implementation of any determin ation made under" Section 129.
160 The statute requires that "prior to
issuing a determination under this section, the De partment or the Commission, as the case may be,
shall provide interested parties with an opportunity to submit written comments and, in appropriate
cases, may hold a hearing, with respect to the determination".161

199. In turn, under the applicable provisions of the Tariff Act of 1930, as amended, governing
judicial review of antidumping and countervailing duty determinations, an interested party may
challenge a determination issued by the USDOC in accordance with section 129(b) of the URAA only
if that determination has been "implemented" as opposed to merely issued. 162 The SAA confirms that
Section 129(b) determinations that have not been implemented are not subject to judicial review,
"because such determinations will not have any effect under domestic law".163

200. The United States did not implement USDOC's Section 129 Determination. By failing to
implement the Section 129 Determination, the Unite d States violated its obligations under Article 13

156 19 U.S.C. § 3538(b)(1) (ARG-30).
157 US Statement of Administrative Action, accomp anying the Uruguay Round Agreements Act, Pub.
L. No. 103-465, 108 Stat. 4809 (1994), reprinted in H.R. Doc. No. 103-316, Vol. 1 at 1025 ("SAA") (ARG-31).
158 SAA at 1025 (ARG-31).
159 19 U.S.C. § 3538(b)(4) (ARG-30).
160 19 U.S.C. § 3538(c)(2)(ARG-30).
161 19 U.S.C. § 3538(d) (ARG-30).
162 See 19 U.S.C. § 1516a(a)(2)(A)(i)(I) and § 1516a(a)(2)(B)(vii) (ARG-32).
163 SAA at 1026 (ARG-31).

of the Agreement, because it precluded the opportunity for the Argentine respondents to seek judicial
review in the US courts.

V. THE UNITED STATES HAS FAILED TO IMPLEMENT THE DSB
RECOMMENDATIONS AND RULINGS WITH RESPECT TO THE "AS SUCH"
VIOLATIONS

A. SECTIONS 751(C)(4)(A) &(B) OF THE TARIFF ACT ARE WTO-INCONSISTENT

1. DSB Rulings on Section 751(c)(4)(B)

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

(B) Effect of waiver

In a review in which an interested part y waives its participation pursuant to this
paragraph, the administering authority shall conclude that revocation of the order or
termination of the investigation would be likely to lead to continuation or recurrence of
dumping or a countervailable subsidy (as the case may be) with respect to that
interested party.
164

202. The Appellate Body found that Section 751( c)(4)(B) and its implementing regulation were
inconsistent, as such, with US obligations under Article 11.3 of the Anti-Dumping Agreement:

Because the waiver provisions require the USDOC to arrive at affirmative company-
specific determinations without regard to any evidence on record, these determinations
are merely assumptions made by the agency, rather than findings supported by
evidence…. [E]ven assuming th at the USDOC takes into account the totality of record
evidence in making its order-wide determina tion, it is clear that, as a result of the
operation of the waiver provisions, certain order-wide likelihood determinations made
by the USDOC will be based, at leas t in part, on statutorily-mandated assumptions
about a company's likelihood of dumping. In ou r view, this result is inconsistent with
the obligation of an investigating authorit y under Article 11.3 to "arrive at a reasoned
conclusion" on the basis of "positive evidence".

Therefore, we uphold the Panel's findings...that Section 751(c)(4)(B) of the Tariff Act
of 1930 and Section 351.218(d)(2)(iii) of the USDOC Regulations are inconsistent, as
such, with Article 11.3 of the Anti-Dumping Agreement. 165

2. Section 751(c)(4)(B) of the Tariff Act has not been repealed or amended

203. It is uncontested that Section 751(c)(4)(B) of the Tariff Act has neither been repealed nor
amended. Therefore, this measure remains extant , and remains WTO-inconsistent. Furthermore, the
amendments to the USDOC Regulations could not eliminate, and have not eliminated, the WTO-
inconsistency of this statutory provision operating in conjunction with the revised regulation and
Section 751(c)(4)(A) of the Tariff Act. The United States has therefore failed to bring
Section 751(c)(4)(B) into conformity with the r ecommendations and rulings of the DSB and with
US obligations under Articles 11.1 and 11.3 of th e Anti-Dumping Agreement and Article XVI:4 of
the WTO Agreement.

164 19 U.S.C. § 1675(c)(4)(B) (ARG-33).
165 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, paras. 234-235.

204. Moreover, Section 751(c)(4)(B) is a statutory provision enacted by the US Congress. It can
only be repealed or amended through an actus contrarius of the same authority, the US Congress. It
cannot be rendered "inoperative" through regulatory means. 166

B. SECTION 351.218 OF THE REGULATIONS, AS AMENDED, IS WTO-INCONSISTENT

205. Section 351.218 of the Regulations, as amended, requires respondent interested parties that
waive their right to participate in a USDOC sunset re view to make an affirmative statement that it is
likely to dump if the order is revoked. The amended Regulations provide in part as follows:

Contents of statement of waiver. Every st atement of waiver must include a statement
indicating that the respondent interested part y waives participation in the sunset review
before the Department; a statement that the respondent interested party is likely to
dump or benefit from a countervailable subs idy (as the case may be) if the order is
revoked or the investigation is terminated; in the case of a foreign government in a
CVD sunset review, a statement that the government is likely to provide a
countervailable subsidy if the order is revoked or the investigation is terminated; and
the following information….
167

206. Article 11.3 of the Anti-Dumping Agreement permits a WTO Member to continue an anti-
dumping duty beyond five years only when certain st rict requirements have been satisfied. The
administering authority is required to conduct a "r eview" and to make a "determination" that both
dumping and injury would be likely/probable in the ev ent of termination of the duty. The review and
determination required to extend th e anti-dumping duties beyond five years must be forward-looking,
based on positive evidence, and must be the result of a rigorous examination of the evidence adduced
by the authorities. 168 Compliance with the strict requirement s of Article 11.3, as those obligations
have been clarified by the Appellate Body, necessitates that a WTO Member adhere to certain
minimum disciplines in making a sunset determination. In the absence of comp liance, the duty must
be terminated.

207. When a party affirmatively waives its partic ipation, the regulation prevents the USDOC from
developing the requisite factual information. The inability of USDOC to gather the necessary
information is inconsistent with the obligation of the United States to conduct a sunset "review" and
the need to make the requisite "determination" under Article 11.3. The revised regulation is
inconsistent with the obligation of the USDOC under Article 11.3 to "arrive at a reasoned conclusion"
on the basis of "positive evidence".

208. As noted above, the Appellate Body has str essed that an investigating authority assumes both
investigatory and adjudicatory functions under Article 11.3. The provision "assigns an active rather
than a passive decision-making role to the authorities" that they must discharge "with an appropriate
degree of diligence."
169 By requiring an admission of dumping – which, as argued above, will rarely
be forthcoming – the United States has abdicated its responsibilities under Article 11.3. Indeed, the

166In Lagardère SCA – Canal + SA , the European Court of First Instance stated that "in accordance
with a general principle of law…a body which has power to adopt a particular legal measure also has power to
abrogate or amend it by adopting an actus contrarius, unless such power is expressly conferred upon another
body…." Judgment of the Court of First Instance, Lagardère SCA – Canal + SA, Case T-251/00,
20 November 2002, paras. 128, 130. Obviously, the power of the US Congress to abrogate or amend the Tariff
Act has not been conferred on any another body, including the USDOC.

167 Procedures for Conducting Five-Year ("Sunset") Reviews for Anti-Dumping and Countervailing
Duty Orders: Final Rule, 70 Fed. Reg. 62,061, 62,064 (28 Oct. 2005) (ARG-12).
168 Appellate Body Report, US – Corrosion-Resistant Carbon Steel Sunset Review, paras. 105, 111-115.
169 Appellate Body Report, US - Corrosion-Resistant Steel Sunset Review, para. 111.

Regulation, as amended, assigns a "passive rather than active" decision-making role to the USDOC,
despite the Appellate Body's clear admonitions to the contrary.

209. Section 351.218 of the Regulations, as amende d, therefore remains inconsistent with
US obligations under Article 11.3.

VI. ARGENTINA REQUESTS THAT THE PANEL SUGGEST THAT THE
UNITED STATES REVOKE THE ANTI-DUMPING DUTY ORDER ON OCTG
FROM ARGENTINA

210. In this dispute, Argentina requested both the original Panel and the Appellate Body to
exercise their discretion under DSU Article 19.1 and to suggest that the United States terminate the
anti-dumping measure on OCTG from Argentina. The Panel declined this request, stating "[w]e note
that Article 19.1 of the DSU states that WTO pane ls may suggest ways the Member concerned could
implement their recommendations. In the circum stances of the present proceedings, however, we see
no particular reason to make such a suggesti on and therefore decline Argentina's request". 170 T h e
Appellate Body similarly declined to make any such suggestion.

211. There is now, given the sequence of events, "a particular reason to make such a suggestion".
By failing to revoke the anti-dumping duty order on OCTG from Argentina before the expiration of
the reasonable period of time for implementation, the United States violated the requirements of
Articles 11.3 and 11.4 of the Anti-Dumping Agreemen t, and thereby failed to implement the rulings
and recommendations of the DSB. The US violatio n continues to nullify and impair the rights of
Argentina under these same provisions.

212. The nature of a Member's obligation under Articles 11.3 and 11.4 necessarily limits the
infringing WTO Member's options to bring itsel f into compliance. Argentina's rights under
Article 11.3 have been undermined completely by US implementation in this case. Several provisions
in the DSU emphasize that the WTO dispute settlement system should not diminish the rights of
WTO Members. Allowing a Member repeated a ttempts to comply with its obligations under
Article 11.3 obligations, long after the expiration of the five-year period and on the basis of an ever-
changing factual record, would render the provision of Article 11.3 inutile. In this case, permitting
this would deny Argentina its right under that provi sion to termination of the measure in the absence
of US compliance with the requirements for continuation.

213. In this regard, Article 3.2 of the DSU provides that:

The dispute settlement system of the WTO is the central element in providing security
and predictability to the multilateral trading system. The Members recognize that it
serves to preserve the rights and obligations 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. Recommendations and rulings of the
DSB cannot add to or diminish the rights and obligations provided in the covered
agreements.

214. Article 3.2 of the DSU reaffirms that the role of the WTO dispute settlement system is to
"clarify the existing provisions of those agreements in accordance with customary rules of
interpretation of public international law". The general rules of interpretation of the Vienna
Convention require a panel to interpret treaty provis ions in good faith in accordance with their
ordinary meaning, in their context, and in light of the treaty's object and purpose.
171 Thus, the treaty

171 Vienna Convention on the Law of Treaties, Art. 31, adopted 22 May 1999, 1555 U.N.T.S. 331.

language defines the extent of Members' rights and ob ligations. One of the corollaries of this general
rule is that "interpretation must give meaning and eff ect to all the terms of a treaty. An interpreter is
not free to adopt a reading that would result in re ducing whole clauses or paragraphs of a treaty to
redundancy or inutility".172

215. As set out above, the Appellate Body has cont ributed importantly to clarifying the meaning of
the rights and obligations comprised in Article 11.3. Argentina submits that it had a right to
termination of this measure and that the United States could continue the measure only by making
findings consistent with Article 11.3 of the Anti-Du mping Agreement. The United States failed to do
so in 2000, and has again failed in 2005. Thus, the anti-dumping order on Argentine OCTG was not
terminated in 2000, as required by Article 11.3, a nd a WTO-inconsistent determination continues to
serve as the US justification for the imposition of anti-dumping duties in violation of US WTO
obligations.

216. Article 3.7 of the DSU provides that "[t]he aim of the dispute settlement mechanism is to
secure a positive solution to a dispute… In the absence of a mutually agreed solution, the first
objective of the dispute settlement mechanism is usually to secure withdrawal of the measures
concerned if they are found to be inconsistent with the provisions of any of the covered agreements."
This is particularly relevant when, as is the case he re, the nature of the obligation itself requires that
the measure "expire" – i.e., be withdrawn at the end of five years in the absence of strict compliance
with the substantive requirements. Yet, the Unite d States has not yet withdrawn the measure, despite
an obligation to do so in 2000 in the absence of the requisite findings. Nor did the United States
revoke the anti-dumping order before the expiration of reasonable period of time for implementation
in this case (by 17 December 2005). At a minimum, the United States should have brought itself into
conformity with its WTO obligations at this time.

217. As the foregoing demonstrates, the 2005 like lihood determination was the result of USDOC
undertaking in 2005 to develop a new factual basi s to support its WTO-inconsistent 2000 likelihood
determination – conduct that is patently inconsistent with the requirements of Article 11.3 and 11.4 of
the Anti-Dumping Agreement. Moreover, even if USDOC could have developed a new factual basis,
the Section 129 Determination did not bring the United States into conformity with the rulings of the
DSB and it in no way satisfies US obligations under Article 11.3 of the Anti-Dumping Agreement.

218. Article 19.2 of the DSU adds that "[i]n accord ance with paragraph 2 of Article 3, in their
findings and recommendations, the Panel and Appellate Body cannot add to or diminish the rights and
obligations provided in the covered agreements." Ye t, any rulings by this Panel in this compliance
proceeding that would give the United States, now in 2006, the opportunity to conduct yet another
Section 129 proceeding in order to comply with the ob ligations that first attached in 2000, and which
the United States once again failed to discharge in 2005, would violate both aspects of DSU
Article 19.2.

219. First, any such ruling would serve only to fu rther erode Argentina's already impaired rights
under Article 11.3 to termination of the measure after five years in the absence of compliance with the
requirements of Articles 11.3 and 11.4. Second, giving the United States yet another opportunity to
make a WTO-consistent determination would constitute an addition to the limited US right under
Article 11.3 to invoke the provision's exception to the prin cipal obligation to terminate the measure
(and thereby continue anti-dumping duties on OCTG from Argentina) only if it had first complied
with the substantive obligations of Articles 11.3 and 11.4 of the Anti-Dumping Agreement . The
United States cannot now have a
third opportunity in 2006 to satisfy the obligations of Article 11.3
that attached in 2000.

172 Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline ,
WT/DS2/AB/R, adopted 20 May 1996, at 23.

220. Argentina finds additional support for a sugges tion pursuant to DSU Article 19.1 in this case
for the following reasons.

221. First, the temporal limitations containe d in Articles 11.3 and 11.4 are meaningless if a
Member can expect limitless opportunities to satisfy the obligations. This is the context for Argentina
in this case. For Argentina, in very real terms, there is no meaningful sunset provision applicable to
the US antidumping duty order on Argentine OCTG. The Appellate Body recently recognized the
harm to the dispute settlement system that could result from allowing an implementing Member to
abuse its implementation rights under the DSU, at the expense of the rights of the complaining
Member. The Appellate Body in the sec ond recourse to DSU Article 21.5 in the FSC case
admonished that Panel rulings in compliance proceedings should not "lead to a potentially 'never-
ending cycle' of dispute settlement proceedings and inordinate delays in the implementation…".
173

222. Here, Argentina has already had its Article 11.3 right denied twice – in 2001 (following the
failure of the United States to terminate the orde r in the absence of compliance with Article 11.3
requirements) and in 2005 (at the conclusion of the RPT, where again the United States failed to
comply with Article 11.3 and did not bring itself into compliance with the rulings of the DSB). In the
absence of a suggestion that the United States revoke the anti-dumping order, Argentina stands on the
brink of yet another Section 129 proceeding and a "never-ending cycle" of non-compliance.

223. Second, a suggestion is all the more compelling given the facts of this case, where the second
sunset review of the order on OCTG from Argentina is fast approaching, i.e., June 2006. Thus,
Argentina faces the potential absurd ity – yet very real prospect – of facing the second sunset review
of the Argentine anti-dumping duty order in this case in June 2006, when the DSB has already
ruled that the initial sunset review from August 2000 was inconsistent with US obligations
under Article 11.3.

224. Finally, Argentina recalls Article 21.7 of the DSU, which also recognizes that "[i]f the matter
is one which has been raised by a developing country Member, the DSB shall consider what further
action it might take which would be appropriate in the circumstances". In this case, such further
action would be the recommendation that the United States terminate the anti-dumping duty order on
OCTG from Argentina. Consequently, the Panel should make this recommendation so as to prevent
the "never-ending cycle" of US violation and subsequent Section 129 proceedings. In such an endless
loop, there will never be US implementation of the DSB rulings and recommendations in this case.

VII. CONCLUSION

225. For the foregoing reasons, Argentina respectfully requests the Panel to find that the
United States has failed to implement the recommend ations and rulings of the DSB, and remains in
violation of its WTO obligations. In particular, Argentina requests that the Panel make the following
findings:

Section 129 Determination

1. USDOC's Section 129 likelihood of dumping determination is inconsistent with
Article 11.3 because:

173 Appellate Body Report, United States – Tax Treatment For "Foreign Sales Corporations" Second
Recourse To Article 21.5 Of The DSU By The European Communities , WT/DS108/AB/RW2, adopted
14 March 2006, para. 86.

a. USDOC based its 2005 likelihood dete rmination on factual evidence that
USDOC developed in 2005, and which was not developed during the original
sunset review in 2000, and therefore, the United States violated the
requirements of Articles 11.3 and 11.4 of the Anti-Dumping Agreement.

b. As for the USDOC's statement that it also relied on its position from the
original sunset review that the post-order volume decline created a basis for
inferring that dumping would be likely to continue or recur, this was an
insufficient basis to support the 200 0 likelihood determination and also
cannot support the 2005 likelihood determination in violation of Article 11.3.

2. Alternatively, assuming that USDOC could, consistently with US WTO obligations,
conduct a proceeding in 2005 to justify USDOC's 2001 continuation of the
antidumping duty order on Argentine OCTG, then USDOC's Section 129 likelihood
of dumping determination is inconsistent with Article 11.3 because:

a. The USDOC did not properly establis h a sufficient factual basis, did not
objectively assess the facts, and did not reach a reasoned conclusion
supported by positive evidence that expiry of the order would be likely to
lead to continuation or recurrence of dumping.

i. The USDOC determination with respect to the Argentine exporters is
inconsistent with Article 11.3 of the Anti-Dumping Agreement.

ii. As for the USDOC's statement that it also relied on its position from
the original sunset review that the post-order volume decline created
a basis for inferring that dumping would be likely to continue or
recur, this was an insufficient basis to support the 2000 likelihood
determination and also ca nnot support the 2005 likelihood
determination in violation of Article 11.3 of the Anti-Dumping
Agreement.

b. The USDOC's conduct of the Section 129 proceeding was also inconsistent
with Articles 6.1, 6.2, 6.4, 6.5.1, 6.6, 6.8, 6.9, and Annex II of the Anti-
Dumping Agreement:

i. The USDOC's failure to provide the parties notice regarding the
procedures it would follow to make its determination and to notify
the parties of the essential facts unde r consideration that formed the
basis for the Section 129 Determina tion, including, when necessary,
by providing reasonable summaries of confidential information, was
inconsistent with US obligations u nder Articles 6.1, 6.4, 6.5, 6.5.1,
and 6.9 of the Anti-Dumping Agreement.

ii. The USDOC's failure to hold a hearing in the Section 129 proceeding
and to provide to interested parties a full opportunity for the defence
of their interests was inconsistent with US obligations under Article
6.2 of the Anti-Dumping Agreement.

iii. The USDOC's failure to require interested parties to submit non-
confidential summaries of their written submissions in the Section
129 proceeding in such a manner as to permit a reasonable
understanding of the substance of the confidential information

submitted violated US obligations under Articles 6.1, 6.2, 6.5, 6.5.1
of the Anti-Dumping Agreement.

iv. The USDOC's characterization of Siderca's submitted cost
information as unreliable without a reasonable basis for doing so and
without following the requirements of the Anti-Dumping Agreement
was in violation of US obligations under Articles 6.1, 6.2, 6.4, 6.6,
6.8 and Annex II of the Anti-Dumping Agreement.

3. The failure of the United States to "implement" the Section 129 Determination,
pursuant to Section 129(b)(4) of the Uruguay Round Agreements Act , was inconsistent with
US obligations under Article 13 of the Anti-Dumping Agreement.

Failure of the United States to Repeal or Amend the Tariff Act

4. The failure of the United States either to re peal Section 751(c)(4)(B) of the Tariff Act of
1930, or to amend this provision to remove th e WTO-inconsistency, failed to implement the
recommendations and rulings of the DSB and was inconsistent with US obligations under Article 11.3
of the Anti-Dumping Agreement and Article XVI:4 of the WTO Agreement.

US Amendment of Section 351.218(d)(2) of USDOC Regulations

5. The amendment by the United States of Section 351.218(d)(2) of the USDOC Regulations
failed to implement the recommendations and ruli ngs of the DSB and was inconsistent with
US obligations under Articles 6.1, 6.2, 6.6, 11. 1, and 11.3 of the Anti-Dumping Agreement and
Article XVI:4 of the WTO Agreement.

226. In accordance with DSU Article 19.1, Argentin a further requests that the Panel suggest that
the United States bring its measures into conformi ty with its WTO obligations, including through
immediate revocation of the order on OCTG from Argentina.

I. INTRODUCTION

1. Argentina asks the Panel to conclude that Commerce was wrong in determining that dumping
was likely to continue or recur if the order on OCTG from Argentina were revoked. Argentina does
so, even though Commerce was ultimately proven right: One of the Argentine exporters was found to
be dumping after the continuation of the order.

2. The majority of Argentina's grievances are grounded in the flawed assumption that the
exporter of a product subject to a sunset review bears no responsibility for supplying an administering
authority with sufficient, or accurate, information to make a determination. Indeed, Argentina's
position goes even further – an exporter may refrain from participating in a review, deprive the
administering authority of information, complain to the WTO about the lack of information, and then
complain again about having to supply that information, even as the administering authority
undertakes to come into complian ce. Neither Argentine respondent provided any actual cost
information, and when Siderca provided estimates, coupled with the fact that it was no longer
exporting to the United States, Commerce simply declined to make any specific finding as to whether
Siderca dumped over the life of the order. Still, Argentina complains.

3. Argentina's grievances extend to the manner in which the US implemented the
recommendations and rulings of the Dispute Settleme nt Body ("DSB") pertaining to the so-called
"waiver provisions." Argentina's argument rests on a misguided understanding of the text of the
Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994
("Anti-Dumping Agreement"), as well as of the recommendations and rulings in this dispute. The
United States is not obligated to provide respondent s with an option to waive participation in the
likelihood of dumping aspect of the sunset review. The Panel made clear that where the United States
does so, the waiver must not "taint" the overall de termination by requiring an assumption that the
waiving respondent is likely to dump absent evidence that it is, in fact, likely to dump.

4. Argentina's argument boils down to this: th e respondent's own admission that it is likely to
dump is somehow not "positive evidence" of what the respondent is likely to do. This is odd indeed,
because Argentina's position in the underlying dis pute was that the deemed waiver provisions
required Commerce to make dete rminations about likely beha viour without the respondent's
participation.1 Now Argentina is criticizing Commerce fo r doing just the opposite – relying on the
respondent's own admissions made in the course of participating in the proceeding. Still more
confusing, Argentina complains that the Unite d States violated Articles 6.6 and 6.8 by not relying on
the respondent's statement as to costs (which th e respondent itself described as "estimated"); yet
Commerce is to be faulted for relying on a respondent's statement as to its own future behaviour.
Argentina's analysis is simply results-driven.

5. With respect to the waiver statute, Argentin a insists that the statute had to be amended, as
opposed to the regulations alone. First, the Panel, and subsequently the Appellate Body, made it clear
that the statute and the regulations operated together, and as they operated together, they were
inconsistent with Article 11.3 – he nce the term "waiver provisions". There is nothing in either report
to suggest that correcting the regulations would be in sufficient to remedy concerns about the statute.
Second, it is well established that the Member charged with implementing a recommendation and
ruling is in the best position to decide how to bring its measure into compliance. Here, the
United States amended its regulations in such a wa y that no amendment to the statute was necessary,
and in doing so implemented the recommendations and rulings as expeditiously as possible.

6. In that vein, Argentina's arguments to the arbitrator during the Article 21.3(c) proceedings are
difficult to reconcile with the arguments it makes he re. Before the arbitrator, Argentina argued that

1 See, e.g., Argentina First Submission in the original proceeding, para. 120.

the United States could come into compliance in a mere seven months. Given that Argentina is
insisting that a statutory change was necessary, that time frame was particularly abbreviated; indeed,
it took Argentina more than 15 months simply to come into compliance w ith DSB recommendations
and rulings regarding a single investigation, with no statutory or regulatory amendments. 2 Moreover,
in spite of requesting such a brief period of time, Argentina now contends that the United States
violated a host of procedural obligations under Article 6. Argentina's argument is ironic, given that
the United States insisted that 15 months would be necessary in order to come into compliance while
observing the procedural obligations found in Article 6, as well as to provide additional procedural
steps, including a preliminary determination, that Argentina now wishes its companies had enjoyed.
Argentina is trying to have it both ways – first demanding an unreasonable period of time for
implementation, and then asserting WTO-inconsistenci es relating to a host of procedural steps that
would have required even more time. Despite the abbreviated reasonabl e period of time, the
United States has not acted inconsistently with the obligations of Article 6.

II. PROCEDURAL HISTORY

7. The DSB adopted the Panel and Appella te Body reports 17 December 2004. On
14 January 2005, the United States notified th e DSB of its intention to implement those
recommendations and rulings. The United States re quested 15 months to bring its measure into
compliance with the DSB recommendations and ru lings, while Argentina insisted on only seven
months.3 On 7 June 2005 an arbitrator appoint ed pursuant to Article 21.3(c) of the Understanding on
Rules and Procedures Governing the Settlement of Disputes ("DSU") determined that a "reasonable
period of time" for the United States to implement the recommendations and rulings of the DSB
would be 12 months from the date on which the DS B adopted the Panel and Appellate Body Reports,
or 17 December 2005.4

8. On 15 August 2005, Commerce published in the Federal Register a notice proposing to
amend its sunset regulations and soliciting public comment on the proposed amendments. 5 T h e
Federal Register notice stated that Commerce was "amending its regulations relating to sunset
reviews to conform the existing regulation to the United States' obligations under Articles 6.1, 6.2,
and 11.3" of the AD Agreement.6

9. On 28 October 2005, the United States publishe d amendments to sections 351.218(d)(2)(iii)
and 351.309(c) of Commerce's regulations. Th ese amendments became effective 31 October 2005. 7
That same day, the US Trade Re presentative ("USTR") transmitted a request for Commerce to issue a
determination with respect to the sunset review so as to render that determination not inconsistent
with the findings of the DSB in this dispute.

10. On 2 November 2005, Commerce initiated a proceeding pursuant to section 129 of the
Uruguay Round Agreements Act to address the Pane l findings regarding the likelihood determination
in the sunset review of OCTG from Argentin a. Commerce requested information from the
Government of Argentina, Acindar, Siderca, and Tubhier. No public hearing was requested.

2 WT/DS189/8
3 See Submission of the United States pursuant to DSU Article 21.3.
4 United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from
Argentina: Award of the Arbitrator, WT/DS268/12, para. 53 (7 June 2005).
5 Procedures for Conducting Five-Year Reviews of Anti-Dumping and Countervailing Duty Orders:
Proposed rule, 70 Fed. Reg. 47738 (15 August 2005) (Exhibit US-1).
6 Id.
7 Procedures for Conducting Five-Year ("Sunset") Reviews of Anti-Dumping and Countervailing Duty
Orders: Final Rule (Exhibit ARG-12)

11. On 16 December 2005, Commerce issued its Section 129 Determination. 8 After analysis of
all the factual information on the record and argum ents made by the interested parties, Commerce
found that "there is a likelihood of continuation or recurrence of dumping had the anti-dumping duty
order on OCTG from Argentina been revoked in 2000, i.e. at the end of the original sunset period". 9
On 16 March 2006, USTR directed Commerce to im plement the Section 129 Determination, and on
18 April 2006, Commerce implemented that determination.10

III. THE WAIVER PROVISIONS

12. The Panel considered the affirmative waiver provisions to be inconsistent with Article 11.3
because the "investigating authority can not simply assume, without further enquiry, that dumping is
likely to continue or recur because the exporte r chose not to participate in the review". 11 With respect
to affirmative waivers, the Panel's analysis invol ved consideration of the statutory and regulatory
provisions collectively, rather than individually. 12 The Panel ultimately concluded that "the
provisions of US law relating to affirmative waivers" are inconsistent with Article 11.3.13

13. The Appellate Body agreed:
[b]ecause the waiver provisions require the USDOC to arrive at affirmative company-
specific determinations without rega rd to any evidence on record, these
determinations are merely assumptions made by the agency, rather than findings
supported by evidence . . . .14

Therefore, the waiver provisions, as they operated together, were found to be in violation of
Article 11.3 because they required an assumption wit hout regard to the underlying evidence, if any.
As discussed below, Commerce ame nded the regulations such that a waiver occurs only with respect
to a respondent that states that it is likely to dump in the future. Commerce therefore no longer makes
its company-specific finding based on an "assumpti on" but rather on evidence. As a result, the
United States has brought its measures into compliance with the DSB rulings and recommendations.

14. With respect to the statute, the Panel noted th at it "simply provides that interested parties may
choose not to participate in the USDOC part of a sunset review". 15 The requirements for what
constitutes a waiver are only found in the regulations. (For example, the Panel recognized in the
original proceeding that the regulations went so far as to create an entirely new category of waiver,
the "deemed" waiver.)16 Consistent with the DSB recommendations and rulings, Commerce amended
the waiver provisions to delete the "deemed" waiver, and to require the following in the case of what
the Panel has referred to as an affirmative waiver:
Every statement of waiver must include a statement indicating that the
respondent interested party waives particip ation in the sunset review before the
Department; a statement that the respondent interested party is likely to dump

8 Decision Memorandum; Section 129 Determination: Final Results of Sunset Review, Oil Country
Tubular Goods from Argentina (16 December 2005) ("Decision Memorandum") (Exhibit ARG-16).
9 Decision Memorandum at 11 (Exhibit ARG-16).
10 Notice of Implementation under Section 129 of th e Uruguay Round Agreements Act; Anti-Dumping
Measures Concerning Oil Country Tubular Goods from Argentina, 71 Fed. Reg. 19873 (18 April 2006)
(Exhibit US-2).
11 Panel Report, para. 7.99.
12 Panel Report, para. 7.85.
13 Panel Report, para. 7.99.
14 Appellate Body Report, para. 234 (emphasis in original).
15 Panel Report, para. 7.85.
16 Panel Report, para. 7.83.

or benefit from a countervailable subsidy (as the case may be) if the order is
revoked or the investigation is terminated; . . . 17

15. Therefore, as noted above, because the waiver provisions are triggered only when a
respondent provides a statement that it is likel y to dump, these provisions also eliminate any
"assumptions" about what an individual company waiv ing participation is likely to do if the order is
revoked.

16. Argentina complains that the United States h as failed to bring the statute into compliance
because it has been neither repealed nor amended; Argentina further complains that the amendments
to Commerce's regulations are insufficient. 18 However, Argentina ignores the fact that the Panel and
the Appellate Body analyzed the waiver provisions – the statute and the regulations – collectively.
Thus, the United States never had to amend both the statute and the regulations – rather, it needed to
ensure that the collective impact of the two was consistent with the DSB recommendations and
rulings. The statute and the regulations now no longer create the inconsistency in question.
Therefore, Argentina has failed to substantiate its assertion that the United States was obliged to
amend the statute in order to comply with the DSB recommendations and rulings.

17. Argentina also takes issue with the amendment to the regulations. Argentina asserts that
when "a party affirmatively waives its particip ation, the regulation prevents the USDOC from
developing the requisite factual information" a nd that it prevents USDOC from arriving a "reasoned
conclusion" on the basis of "positive evidence".
19 Therefore, Argentina takes the counterintuitive
position that the respondent's admission is not po sitive evidence. That argument is plainly
inconsistent with the underlying reports. The United States recalls that the Panel expressly noted that
in most cases it is the exporter who will be in possession of the "bulk of the information" as to
whether that particular exporter is likely to dump. The Appellate Body echoed the Panel's views by
noting the negative consequences likely to inure to an exporter who does not participate in a review. 20
Argentina's view is that an exporter may waive part icipation, provide an admission of likely dumping,
and affirmatively decline to provide any other information – yet somehow the administering
authority's company-specific affirmative finding is not "reasoned" or based on "positive evidence." In
a theme that will be repeated in its discussion of the Section 129 Determination, Argentina's approach
deprives the respondent of any responsibility for the r ecord before the administering authority, even
though, as the Appellate Body has noted, "the expor ters or producers themselves . . . often possess the
best evidence of their likely future pricing behaviour – a key element in the likelihood of future
dumping."

18. In addition, Argentina's assertion that the amended regulation prevents Commerce from
developing the requisite factual information is simply wrong. First, it should be noted that Argentina
fails to specify what factual information is not being developed with respect to that company, and why
that mystery factual information would be more probative than the company's own admission. It is
worth noting that a sunset review is a prospective and counterfactual enquiry, and it is difficult to

17 Id. (emphasis added).
18 Argentina First Submission, paras. 201-204. At n. 166, Argentina somewhat puzzlingly cites
European Community law for the prin ciple that a European statute cannot be rendered "inoperative" through
regulatory means. The passage quoted however does not stand for the principle cited by Argentina – the
passage quoted states that a body that has the authority to adopt a measure also has authority to repeal or amend
it, absent some provision to the contrary. In any event, as the United States is not a member of the European
Communities, European Community law has no relevance to the relationship between US statutes and
regulations. Argentina's argument also overlooks the fact that to comply with the recommendations and rulings,
the United States was not required to make the statute "inoperative," but rather to ensure that the company-
specific finding was not based on mere "assumptions".
19 Argentina First Submission, para. 207.
20 Appellate Body Report, para. 234.

conceive of evidence that would establish that a comp any is not likely to dump in the future when the
company has itself stated that it will.

19. Second, it is not the regulation that "prevents" Commerce from developing factual
information; rather, the exporter is providing the statement as to its likely future behaviour in lieu of
providing other information. Therefore, the absence of further factual information is attributable
entirely to the respondent's exercise of choice, rather than to any "requirement" in the regulations.

20. Argentina further states that the regulations require an admission of dumping. 21 T h a t i s
simply incorrect. No exporter is obliged to make any admission of dumping. However, an exporter
who wishes to decline to participate in the Commerce portion of the sunset review may do so by filing
a statement of waiver, which includes a statement that it is likely to dump if the order is revoked.
Further, given Commerce's deletion of the deemed wa iver provision, an exporter may also decline to
participate without filing such a waiver, with the potential negative consequences that the Panel
identified in its report: "non-cooperation clearly is not without consequences for the exporter. Under
these circumstances, the USDOC may, consistent with the terms of Article 6.8 and Annex II of the
Agreement, resort to the use of the facts available . . . ."
22

21. By amending its sunset regulation, Commerc e bases its company-specific findings for those
waiving participation on "positive" evidence, el iminating reliance on "assumptions". In doing so,
Commerce brought both the statute and the regulation into compliance with its WTO obligations. No
repeal or amendment of the statute is required, nor are any further amendments of the regulations
necessary.

IV. THE SECTION 129 DETERMINATION

22. Argentina asserts that in the original proceed ing, the Panel concluded that there was "no basis
for a WTO-consistent determination that dumping would be likely to continue or recur". 23 T h a t i s
incorrect. What the Panel actually stated was that "the original determination of dumping by itself
cannot represent a sufficient factual basis for concluding that dumping continued during the life of the
measure, let alone representing an adequate fact ual basis to conclude that dumping is likely to
continue or recur after the expiry of the order." 24 Therefore, the Panel did not conclude that there
was no basis, but rather an inadequate basis.

23. Further, the Panel recognized that there were two factual bases for the determination. 25 The
Panel did not make any findings with regard to the second basis – Commerce's conclusion that the
decline of import volumes was probative of likeli hood – as Argentina well knows, because during the
interim review Argentina asked the Panel to make such a finding.26 The Panel declined to do so.27

24. Finally, the Panel concluded that application of the "deemed waiver" provisions to Argentine
exporters other than Siderca "invalidated' the De partment's order-wide likelihood determination.
28
The Appellate Body agreed with the Panel regarding the waiver provisions.

21 Argentina First Submission, para. 208.
22 Panel Report, para. 7.95.
23 Argentina First Submission, para. 29.
24 Panel Report, para. 7.219.
25 Panel Report, para. 7.221.
26 Panel Report, para. 6.9.
27 Panel Report, para. 6.11.
28 Panel Report, para. 7.222.

25. Once the revisions to the regulation to remove "deemed waivers" and to require an affirmative
statement of likelihood of dumping for an affirmat ive waiver were effective, Commerce began its
Section 129 proceeding. Commerce responded to the DSB recommendations and rulings by gathering
additional information, conduc ting a thorough analysis, and providing detailed and reasoned
explanations for its findings. 29 In addition to using the evidence gathered in the original sunset
proceeding, Commerce sent questionnaires to all known Argentine exporters/producers of OCTG.
Commerce also gathered statistical import data from US Customs and Border Protection ("CBP"), as
well as from other independent sources. Commerce evaluated the accuracy and reliability of the
evidence and based its decision on the most reliable information.

26. On the basis of its analysis of the record evidence, Commerce made the determination that
dumping was likely to continue or recur if the order were revoked.30 This determination was based on
the Argentine respondents' submissions, their financial statements, and on independent sources of
data. Argentina's contention that the Section 129 Determination is inc onsistent with the Anti-
Dumping Agreement cannot be substantiated.

A. COMMERCE'S USE OF "NEW FACTUAL INFORMATION"

27. Argentina argues that Commerce should be precluded from developing a new factual record
in the Section 129 proceeding. Argentina contends that the United States failed to bring its
determination into compliance because "USDOC cho se to develop a new and different factual basis
for its Section 129 Determination".
31 Argentina distinguishes Commerce's approach from that in
which "national authorities seek [] to clarify information that it had developed in the 2000
proceeding".32

28. As an initial matter, Argentina provides no textual support for the proposition that a Member
is prohibited from collecting new information in the course of coming into compliance with DSB
recommendations and rulings. Argentina simply offers the conclusory statement that new information
cannot satisfy the requirements under Article 11.3 and 11.4 to "conduct a 'review' and to make a
'determination' prior to contin uing the anti-dumping measure". 33 Indeed, the panel in
US – Countervailing Measures on Certain EC Products came to the opposite conclusion in the
parallel sunset review provision of the Agreement on Subsidies and Countervailing Measures:

Regarding the second category of evidence, namely, evidence provided for the first
time by the interested parties during the Section 129 proceedings, the Panel notes that
Corus and the GOUK provided new evidence during the Section 129 proceedings . . .
The Panel recalls its previous findings in paragraph 7.238 above that Article 21.3 of
the SCM Agreement imposes an obligation on the investigating authority during
sunset review or revised sunset review proceedings to take into account all the
evidence placed on its record in maki ng its determination of likelihood of
continuation or recurrence of subsidization.
34

29 See generally, Decision Memorandum (Exhibit ARG-16).
30 The evidence in Commerce's Section 129 proceeding incorporates the record in Co mmerce's original
sunset review of OCTG from Argentina, the Panel a nd Appellate Body reports, and additional information
gathered in and comments submitted during Commerce's Section 129 proceeding.
31 Argentina First Submission, para. 52.
32 Argentina First Submission, para. 52.
33 Argentina First Submission, para. 67.
34 Panel Report, United States – Countervailing Measures Concerning Certain Products from the
European Communities , WT/DS212/R, paras. 7.252-7.253 (adopted 8 January 2003, as modified by the
Appellate Body Report) ("US – Countervailing Measures on Certain EC Products").

29. Further, Argentina does not explain what it means by a "new and different factual basis",
which is, for Argentina, apparently, impermissibl e, and how that is to be distinguished from
"clarifying information it had developed in the 2000 proceeding", wh ich is, for Argentina, apparently,
permissible. It seems that Argentina does not disagree with the collection of new information per se,
but rather new information that leads to a "new and different factual basis", which is the basis for the
Member's coming into compliance. However, Argentina's position cannot be correct – the logical
extension of that argument is that a Member could never comply with a narrow DSB recommendation
or ruling that the factual basis for a measure is inadequate.

30. Moreover, the question of the collection of new information was discussed during the
Article 21.3 arbitration proceeding. The Arbitrator sought to ensure that Commerce would confine its
collection of information to the original period of review – not that Commerce would be prevented
from collecting new information about that period.

31. With regard to this particular sunset re view, the Panel rejected Commerce's finding that
dumping had continued over the life of the order because it was based on Acindar's payment of cash
deposits, which in turn was based on the margin from the original investigation. Acindar did not
identify itself during the review proceeding, nor did Siderca identify Acindar as the then-unidentified
exporter. In any event, in its Section 129 pro ceeding, Commerce requested information from the
Argentine respondents to ascertain whether dumping had continued over the life of the order.
Argentina concedes that all of this additional evid ence was specific to the period of review and was
available at the time of the original review.
35

32. Argentina's position would reward Acindar for failing to participate in the original sunset
review, and for failing to provide Commerce with the information it would have needed to make a
finding, based on positive evidence. Argentina's position finds no basis in the text of the Anti-
Dumping Agreement; rather, it is clear that Argentin a simply wishes to achieve a particular result by
whatever means necessary.

33. Argentina also takes issue with Commerce' s finding on the post-order volume decrease.
According to Argentina "Commerce chose not to de velop further any of the information relating to
the post-order volume decrease, which was the only factor for which it developed a factual basis in
the review conducted in 2000 . . . .".
36 Argentina's position with respect to the volume issue cannot be
reconciled with its position with respect to th e continuation of dumping issue – Argentina is
criticizing Commerce for not developing more information on the volume question while criticizing
Commerce for developing more information on the dumping question. In any event, the Panel
expressly declined to make any findings regarding the decline in volume. Therefore, Commerce was
under no obligation to develop further facts, or furthe r justify, the finding it made with regard to the
volume decrease.

34. The United States also notes that the Appellate Body stated in EC – Bed Linen (Article 21.5 –
India), "we do not see why that part of a redetermina tion that merely incorporates elements of the
original determination . . . would constitute an in separable element of the measure taken to comply

35 Argentina First Submission, para. 54.
36 Argentina First Submission, para. 67. What Argentina means by "factual basis" is unclear, but in any
event, that statement is incorrect. In the original sunset determination, Commerce did develop factual
information on more than the post -order volume decrease; Commerce developed information as to whether
dumping had continued over the life of the order – and did so to the best of its ability, given that the exporter
who continued to ship during the period of review declin ed to identify itself or participate in the proceeding.
Simply, the Panel considered that factual basis to be insufficient.

with the DSB rulings in the original dispute." 37 Further, in that dispute, "India [sought] to challenge
an aspect of the original measure which has not changed, and which the European Communities did
not have to change, in order to comply with the DSB recommendations and rulings to make that
measure consistent . . . ".38 Argentina has offered no argument as to why the finding regarding import
volumes, which is an incorporation of an element of the original determination, is a measure taken to
comply.

B. THE FINDING THAT DUMPING WAS LIKELY TO OR RECUR

35. The Panel found that the fact that dumping duties continued to be collected on imports over
the life of the order did not represent "an adequate factual basis for the proposition that dumping
continued" during the period 1995-2000. 39 Therefore, Commerce collected additional evidence on
this matter. As discussed below, relying upon Arge ntine exporters' data and certain independent data,
Commerce properly determined in its Section 129 pr oceeding that revocation of the order was likely
to result in continued dumping.

36. As an initial matter, Article 11.3 "does not expressly prescribe any specific methodology for
investigating authorities to use in making a likelihood determination in a sunset review". 40 Therefore,
it is within the authorities' discretion to decide how to make the determination in question. The only
question is whether dumping would be likely to continue or recur if the order were revoked.

37. In this context, Argentina's arguments about the Section 129 Determination lack merit.
Argentina takes exception to Commerce's use of the Argentine companies' data, as well as
Commerce's effort to evaluate whether dumping likely occurred during the period of review.

38. Commerce sought to evaluate whether dumping continued over the life of the order. To do
so, Commerce issued questionnaires to the known Argentine producers of OCTG to gather
information on their costs of production for the interv ening five years. With a very abbreviated time
within which to conduct the Section 129 proceedi ng, Commerce gathered information from the
interested parties and sought additional sources for the information (e.g ., CBP data and Preston
Publishing data).

39. None of the Argentine respondents provided Co mmerce with actual cost data for the period of
review, stating that they had not retained it. Si derca had provided estimated cost data by using one
month's worth of its costs of production for October 2005 and extrapolated what costs during the five
year period would have been. However, these data were unusable for several reasons, explained in
detail below. The only company that had exported to the United States during the period, Acindar,
was unable to provide any cost data. Therefore, Commerce relied on the available information that
was reliable (i.e., audited financial statements, CBP data, and Preston Publishing data).

40. Given the lack of actual cost informati on, it was impossible for Commerce to evaluate
whether dumping had in fact continued over the life of the order. However, it is not necessary in an
Article 11.3 review to determine whether dumping conti nued over the life of the order, or to calculate
a particular margin. As noted above, no methodology is prescribed. Therefore, Commerce proceeded

37 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, para. 86
(adopted 24 April 2003) ("EC – Bed Linen (21.5) (AB)").
39 Panel Report, para. 7.220.
40 Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on
Corrosion-Resistant Carbon Steel Flat Products from Japan , WT/DS244/AB/R, para. 123 (adopted
9 January 2004) ("US – Corrosion-Resistant Steel Sunset Review (AB)").

to evaluate whether it was likely that dumping had continued over the life of the order, as part of its
overall assessment of whether it was likely that dump ing would continue or recur if the order were
revoked.

41. Commerce compared prices of Argentine OCTG imports (CBP data that reflected Acindar's
US sales) with US sales data (Preston Publishi ng data) and found that Acindar's prices "were
substantially lower than prevailing US market prices for the corresponding OCTG products". 41 That
fact, coupled with the fact that there was a depressed OCTG market, led Commerce to conclude that
Acindar was likely dumping during the period. This finding was proved to be accurate: Acindar was
reviewed for the 2000-01 period and was found to be dumping at a very high 60.73 per cent margin.42

42. Argentina asserts that Commerce applied the wrong standard by assessing whether Argentine
respondents were likely dumping during the period instead of determining whether they would likely
dump in the future if the order was revoked.
43 Argentina is incorrect. Commerce examined whether
they would likely dump in the future using past da ta as a predictor. Given that Article 11.3 requires
Members to make a conclusion about events that ha ve not yet occurred, the only data available are
past data. Although Acindar did not retain its actual cost data, Commerce nevertheless sought to
determine whether dumping had likely occurred. If Acindar was likely dumping while an order was
in place, then, in the absence of evidence to the contrary, it would likely continue to do so if the order
were revoked. It should also be noted that Acindar's likely dumping was just one of two findings that
supported the determination, the other being the dec line in import volumes. Therefore, there was an
additional basis for continuing the order.

43. The logical extension of Argentina's argument is that a Member cannot possibly make an
affirmative determination if the respondents provi de no cost data. That simply is not what
Article 11.3 provides. Argentina's arguments specifi c to Siderca, Acindar, and the use of financial
statements are addressed below.

1. Siderca

44. Argentina contends that Commerce's failure to use Siderca's cost data led to conclusions"
"inconsistent with Article 11.3". 44 According to Argentina, "the effect of USDOC's manipulation of
the data was to exclude positive evidence submitted by Siderca to show that dumping was not likely
to continue or recur". 45 F i r s t , C o m m e r c e m a d e no findings regarding Siderca. Second, because
Commerce makes its determinations on an order-wide b asis, all Siderca might have been able to show
was that it was not likely to dump. Commerce found th at Acindar was likely to dump. Commerce
also referenced its finding from the original proceeding that the decline in import volumes was
evidence of likelihood of continuation or recurrence of dumping. Therefore, Commerce's treatment of
the facts concerning Siderca was simply not germane to the ultimate determination and was not
inconsistent with Article 11.3.

45. Finally, it is curious that Argentina fau lts Commerce for undertaking a thorough examination
of the data presented. Argentina on the one hand considers that Commerce has been too active – but
additionally argues that Commerce has no right to be "passive". 46 Again, Argentina's views seem to

41 Decision Memorandum, 7 (Exhibit ARG-16).
42 Oil Country Tubular Goods Other than Drill Pipe , 68 Fed. Reg. 13,262 (19 Mar. 2003) (final
results and rescission in part of anti-dumping duty administrative review) (Exhibit US-3).
43 Argentina First Submission, paras. 74, 108.
44 Argentina First Submission, para. 76.
45 Argentina First Submission, para. 85.
46 See, e.g., Argentina First Submission, para. 50.

be driven by the results it seeks to achieve, rather than an unbiased analysis of the obligations in
question.

2. Acindar

46. Argentina asserts that Commerce erred in fi nding that Acindar was likely to dump based on
past data. 47 Article 11.3 does not prescribe a particular methodology. Nothing in Article 11.3
prevents authorities from looking at evidence of past behaviour, or past likely behaviour where
respondents are unable to provide evidence of actual past behaviour. Argentina argues that "the
comparison described by the Department as supporti ng its determination of 'likely' dumping does not
even resemble the notion of 'dumping' under Article 2". 48 Argentina ignores the fact that Commerce
was not calculating a dumping margin. Article 2 doe s not contain a "notion" of dumping but rather a
methodology for calculating an actual dumping margin.

47. Had there been administrative reviews of the order, Commerce coul d have relied upon those
findings of dumping during the period as evidence c oncerning likelihood if the order were revoked.
However, there were no administrative reviews c onducted, so Commerce had to use available data
gathered during the Section 129 proceeding to determine whether dumping likely occurred during the
period and thus, is indicative that dumping is likely to continue or recur if the order were revoked.
Acindar provided no cost information. Therefore, Commerce used other information in making its
finding.

48. Argentina also contends that Commerce had "no factual basis for inferring that Acindar was
'likely dumping'" because it "was never investigated during the original investigation, and the
company had no prior history of dumping".49 It is telling that Argentina never argues that Acindar did
not dump its product during the period, only that there had not yet been a review of Acindar to find
that it had dumped during the period. Simply because no review had been conducted for Acindar
does not mean that Commerce is precluded from cons idering Acindar in a sunset review. Commerce
reviewed the relevant data and determined that Acindar was likely to dump if the order were revoked.
Commerce's analysis of Acindar's sales data, as co mpared to US sales, provided sufficient evidence
for its likelihood determination and is consistent with Article 11.3.

3. Financial Statements

49. Argentina argues that Commerce should not have relied upon claims made in either Siderca's
or Acindar's financial statements because they are not probative of the state of the OCTG industry. 50
This is a perplexing argument because Argentina wants Commerce to accept Siderca's extrapolated
cost data, yet reject financial statements that refl ect the companies' actual financial situation during
the period. In fact, audited financial statements such as these represent the type of affirmative
evidence the Appellate Body said was lacking in the original sunset determination. Relying on these
financial statements and other evidence, Commerce determined whether Argentine producers would
be likely to dump if the order were revoked.

47 Argentina states that "USDOC made what seems to be a prospective (‘likelihood') determination
about past sales. That is USDOC made findings about what was ‘likely' to have happened during the sunset
review period . . . ." Argentina First Submission, para. 108. Argentina equates "lik ely" with "prospective."
But that is not so – it is possible for something to have "likely" happened in the past. What makes a sunset
review prospective is not the use of the term "likely," but the fact that, under Artic le 11.3, an administering
authority is examining whether the "expiry of the duty would be likely to lead to continuation or recurrence of
dumping and injury." The verb "would be" is what makes the determination prospective. Therefore, the
premise of Argentina's argument is simply wrong.
48 Argentina First Submission, para. 115.
49 Argentina First Submission, para. 116.
50 Argentina First Submission, paras. 98, 119.

50. The financial statements provided affirmativ e evidence of the condition of the US industry,
the condition of the Argentine OCTG producers, and the likelihood that they would continue to export
to the US market. This information provi ded affirmative evidence to support Commerce's
Article 11.3 determination and is consistent with the DSB findings.

C. EVIDENTIARY AND PROCEDURAL REQUIREMENTS OF ARTICLE 11.3 AND ARTICLE 6

51. Article 11.4 of the AD Agreement establishes that for sunset reviews, the "provisions of
Article 6 regarding evidence and procedure shall a pply ...". Relying on this cross-reference,
Argentina claims that Commerce's Section 129 Pro ceeding was inconsistent with Articles 6.1, 6.2,
6.4, 6.5.1, 6.6, 6.8, 6.9, and Annex II of the AD Agreement.51

52. Commerce provided all interested parties, in cluding the Government of Argentina, Acindar,
Siderca, and Tubhier with the notice and opportunity to present evidence, argument, and rebuttal
required by Articles 6.1 and 6.2.52 All information was made available to the parties and their lawyers
were granted access to business proprietary information under the administrative protective order
("APO") so they could view all information on the reco rd. No party requested a hearing. In addition,
Commerce did not apply Article 6.8 or Annex II "facts available" with respect to any aspect of the
likelihood determination in the S ection 129 Determination with respect to the determination in this
dispute. Instead, Commerce objectively examined a ll the evidence on the record of the Section 129
proceeding and made its likelihood determination based on an analysis of the relevant data submitted
to or obtained by Commerce during the proceeding.

53. Commerce satisfied all of its obligations under Article 6 despite the fact that it was only given
12 months to both amend the regulations and c onduct the Section 129 proceeding when it had
explained 15 months would be re quired to give all parties, including Commerce, sufficient time to
develop the record and submit argument. For exam ple, a full sunset review takes 240 days, and an
additional 90 days if it is extraordinarily complicated. 53 Therefore, a full sunset review would take
from 240 - 330 days. Yet, Commerce only had 365 da ys to both amend its regulation and conduct the
full sunset proceeding. The 129 proceeding could not commence until the regulation was amended.
Amending a regulation is an involved process, requiring notice and comment, as well as approval
within many levels of the government. The am ended regulation was effective 31 October 2005, and
Commerce sent questionnaires to the Argentine res pondents on that same day. Even with the short
period of time that Commerce was given, it satisfied all of the procedural obligations of Article 6.

1. Article 6.1

54. Article 6.1 requires that interested parties "s hall 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 ques tion". All of the interested parties had ample
opportunity to present in writing all evidence they considered relevant.

55. On 31 October 2005, Commerce initiated the Section 129 proceeding and sent specific and
detailed requests for information to the three Argentine OCTG compan ies identified by the
Government of Argentina as producers of OCTG dur ing the five-year sunset review period (1995-

51 Argentina First Submission, paras. 166-171.
52 Decision Memorandum, 2-3 (Exhibit ARG-16).
53 19 C.F.R. 351.218(f)(3) (an additional 90 day extension is also permitted for sunset reviews that are
extraordinarily complicated) (Exhibit US-4). See also, Section 751(c)(5) of the Act (Exhibit ARG-33).

2000).54 On notice and apprised of the information that Commerce required for the Section 129
proceeding, Acindar and Siderca took the opportunity to present in writing the evidence and argument
that these interested parties considered relevant regarding the Section 129 proceeding.55

56. Both Acindar and Siderca timely filed s ubstantive responses to Commerce's requests for
information.56 In addition, both Acindar and Siderca provided substantive rebuttal comments to
submissions made by other interested parties. 57 Therefore, the respondents had not one but two
opportunities to present in writing the evidence they considered relevant.

57. Regardless, Argentina contends that the United States acted inconsistently with Article 6.1 in
the following ways. First, Argentina argu es that Commerce failed to issue supplemental
questionnaires. Article 6.1 makes no mention of supplemental questionnaires. Article 6.1 requires
only that "notice of the information the authorities require" be given to the interested parties.
Commerce sent inquiries to all three Argentine companies and the Government of Argentina
regarding the information it believed was necessary to the conduct of the section 129 proceeding.

58. Second, Argentina contends that Commerce failed to issue a preliminary determination. 58
Again, Article 6.1 does not require the issuance of a preliminary determination.

59. Third, Argentina contends that no hearing was held, and therefore the United States acted
inconsistently with Article 6.1. Again, Article 6.1 does not require a hearing. Argentina advances the
same argument in connection with Article 6.2, which will be addressed below. However, it should be
noted that no hearing was requested.

60. Finally, Argentina contends that Commerce failed to issue a schedule for the Section 129
proceeding that would have allowed interested parties to submit comments. 59 Article 6.1 does not
require that a schedule be issued, nor has Argentin a cited to any specific requirement of Article 6.1
containing such an obligation. Indeed, it is curious that Argentina cites to Guatemala – Cement II,
because the panel in that dispute expressly concluded:

Article 6.1 of the AD Agreement does not require investigating authorities to set
time-limits for the presentation of arguments and evidence during the final stage of
the investigation. The only time-limit provide d for in Article 6.1 is that contained in
Article 6.1.1 . . . .
60

54 Letter from US Department of Commerce to Embassy of Argentina (14 October 2005)
(Exhibit US-5). In anticipation of the limited time available to conduct the Section 129 sunset review
proceeding, Commerce requested on 10 October 2005, from the Government of Argentina a comprehensive list
of all Argentine OCTG producers who had exports to the United States during the five-year sunset review
period. The Argentine Embassy identified Acindar Industria Argentina de Aceros S.A., Siderca SAIC, and
Tubhier S.A.
55 Tubhier responded to Commerce's request for information by explaining that it had never exported
OCTG to the United states and had no plans to ever do so, and that its production of OCTG-class goods was
irregular and an insignificant portion of it overall production. See Embassy/Tubhier Submission
(Exhibit ARG-20).
56 See Acindar Substantive Response (Exhibit AR G-14); and Siderca Substantive Response
(Exhibit ARG-15).
57 See Acindar Reply (Exhibit US-6); and Siderca Reply (Exhibits ARG-19, 29) .
58 Argentina First Submission, para. 144.
59 Argentina First Submission, para. 144.
60 Panel Report, Guatemala – Definitive Anti-Dumping Measures on Grey Portland Cement from
Mexico, WT/DS156/R, para. 8.118 (adopted 17 November 2000) ("Guatemala – Cement II").

61. The panel's reasoning is correct, and is equally applicable here. As that panel noted, what
counts is whether the substantive obligation of Article 6.1 has been met. 61 In this case, Acindar,
Siderca, Tubhier, and the Government of Ar gentina all submitted factual information and
comments.62 Both Acindar and Siderca submitted rebuttal comments to the domestic industry's
submission, and in fact, Siderca filed rebuttal comments on two separate occasions. 63 Thus, the
substantive obligation contained in Article 6.1 – "ample opportunity" – has been met, and Argentina's
argument is without merit.

2. Article 6.2

62. Article 6.2 of the AD Agreement provides for the rights of interested parties to "a full
opportunity for the defence of their interests", and, inter alia, provides that:

the authorities shall, on request, provide opportunities for all interested parties to
meet those parties with adverse interests, so that opposing views may be presented
and rebuttal arguments offered. (emphasis added).

63. Argentina argues that the United States acted inconsistently with Article 6.2 because
Commerce failed to hold a hearing. 64 However, Article 6.2 does not require a Member to hold a
hearing. Article 6.2 requires a Member to hold a hearing on request. No interested party requested a
hearing.

3. Procedural Requirements in Articles 6.4, 6.5.1, 6.6, and 6.9

64. Argentina makes a series of claims regarding Commerce's treatment of the information
submitted in the course of the Section 129 proceeding.

(a) Article 6.4

65. Article 6.4 provides that the administeri ng authority will provide interested parties
opportunities to see information relevant to the case "w henever practicable". Argentina contends that
Commerce failed to provide timely opportunities for in terested parties to see all information that was
relevant in the sunset review in violation of Article 6.4 of the AD Agreement. 65 It should be noted at
the outset that this Section 129 proceeding was a measure taken to comply. The usual time frame for
conducting a full sunset review – at least 240 days – was not available. While the United States had
requested 15 months, in part to ensure that ade quate time was available for such procedures as a
preliminary determination, Argentina vehemently opposed this time frame, and the United States was
given only 12 months. This abbrevia ted time frame is directly releva nt to what is "practicable" under
Article 6.4.

66. With regard to specifics, Ar gentina's discussion of the information that was purportedly not
put on the record is murky. Argentina initially argues that there were six memos (three plus three), 66
then mentions just five 67, and just four of those five 68, and then finally just three. 69 In doing so,

61 Guatemala – Cement II, para. 8.119.
62 See Acindar Substantive Response, p. 1 (Exhibit ARG-14); Siderca Substantive Response, p. 3
(Exhibit ARG-15); and Tubhier Substantive response, p. 1 (Exhibit ARG-20).
63 See Siderca Reply (Exhibits ARG-19, 29).
64 Argentina First Submission, para. 152.
65 Argentina First Submission, para. 156.
66 Argentina First Submission, para. 157.
67 Argentina First Submission, para. 158.
68 Argentina First Submission, para. 158.

Argentina simply asserts that "at least three of th e memoranda clearly satisfy the criteria established
by the EC – Pipe Fittings panel".70 However, Argentina does not id entify which three. Therefore,
Argentina has not met the burden of making a prima facie case with respect to this claim.

67. Regardless, it should be noted that notwith standing the limited time available, Commerce
made available to all parties participating in the proceeding all the information submitted to or
obtained by the agency in the Section 129 proceeding to the extent "practicable", as required by
Article 6.4. For example, Commerce disclosed to all interested parties information obtained from
CBP regarding the entries of Acindar-produced OCTG from Argentina made during the five-year
period preceding the original sunset review.
71 In addition, all submissions made during the
section 129 proceeding were served on all othe r interested parties to the proceeding. 72 Therefore,
Argentina's assertion that Commerce failed to provide timely opportunities for interested parties to see
all relevant information, "whenever practicable", is without basis.

68. Argentina also argues that Commerce's "v iolations" of Article 6.4 were "compounded"
because the US OCTG industry submitted factual information and comments without any request
from Commerce that it do so.
73 Having just argued that Article 6.1 requires administering authorities
to provide ample opportunity to present evidence in writing, Argentina then seeks to deny that right to
domestic interested parties. Article 6.1 does not apply simply to respondent interested parties, but to
all interested parties, including domestic interested parties. Argentina cannot mean to argue that the
United States violated its obligations under Article 6.4 by complying with its obligations under
Article 6.1. In any event, Argentine respondent s obviously saw the letter, inasmuch as Argentina
admits that Siderca responded to it.
74 Therefore, Argentina admits there was no violation.

(b) Article 6.5.1

69. Article 6.5.1 provides for administering authorities to require interested parties providing
confidential information to furnish non-confidential summaries thereof. Argentina argues that
Commerce failed to require interested parties to submit non-confidential summaries in their written
submissions in a manner to perm it a reasonable understanding of the substance of the confidential
information in violation of Article 6.5.1 of the AD Agreement.
75

70. At the outset, it should be noted that Articles 6.4 and 6.5 contemplate that the parties will not
see confidential information provided by other par ties. Under those circumstances, the summary of
the confidential information is the only basis on which opposing parties can attempt to address the
confidential information provided. Commerce, however, has established a system whereby counsel
for interested parties can have direct access to confidential information and therefore may directly
address the evidence provided. Therefore, the Argentine respondents had the option of accessing
confidential information through counsel. As a r esult, the assertion that Acindar "necessarily" had to
confine its arguments to the public version of the US Steel letter
76 is simply false. Acindar's counsel
had the option of requesting confidential informa tion pursuant to the administrative protective order

69 Argentina First Submission, para. 160.
70 Argentina First Submission, para. 160. The United States does not consider that the EC – Pipe
Fittings panel established criteria, but rather simply identified the relevant elements of Article 6.4.
71 Memo Re: Information for the Record (Exhibit ARG-18). This information was disclosed
approximately three weeks before the decision was made.
72 See e.g ., Certificates of Service in US Steel Fact ual Submission (Exhibit ARG-27); and Siderca
Questionnaire Response (Exhibit ARG-15).
73 Argentina First Submission, para. 162.
74 Argentina First Submission, para. 163.
75 Argentina First Submission, para. 169.
76 Argentina First Submission, para. 169.

that seeks to ensure the confidential information will not be released. It was Acindar's choice not to
access that information.

71. In any event, it is not clear to what "c onfidential" information Argentina refers. The
comments by the US industry that contained "conf idential information" were in reference to
information submitted as confidential by Siderca or gathered through CBP, which Commerce released
under APO. The domestic interested parties summari zed the confidential information in the text of
the letter itself; more detailed summaries were not possible because the domestic interested parties
risked divulging information designated business pr oprietary, in violation of the administrative
protective order. Therefore, the summaries were as detailed as possible, particularly in light of the
fact that respondent interested parties' counsel has direct access to the bracketed information.77

72. Finally, Argentina stated that the panel report in Guatemala – Cement II supports the
argument that the United States acted inconsistently with Article 6.5.1. Not only did that panel
expressly state that it was not addressing Article 6.5. 1, but that dispute involved a situation in which
the administering authority on its own initiative classified information as confidential. 78 Therefore,
the United States finds no support for Argentina's statement that "as the Panel found in Guatemala –
Cement II, in this case, the USDOC violated Article 6. 5.1 because there is no evidence demonstrating
either that petitioner provided a statement of reasons as to why summarization was not possible or that
the USDOC even requested such a statement."
79

(c) Article 6.6

73. Article 6.6 requires administering authorities to satisfy themselves as to the accuracy of the
information upon which they rely in making thei r findings. Argentina asserts that Commerce
erroneously disregarded cost information submitted by Siderca without satisfying itself as to the
accuracy of that information.

74. First, Commerce requested cost informa tion from the Argentina respondents to examine
whether the respondents had dumped during the period of review. Commerce expressly stated that
"we make no findings regarding specific instances of likely dumping by Siderca during the original
sunset review period". 80 Therefore, the cost information was not information "upon which . . .
findings are based," and Article 6.6 is not applicable.

75. Second, Siderca argued that it did not have any of the actual cost information from the period
of review and therefore offered extrapolated data based on the month of October 2005 (the period of
review was 1995-2000). By its own admission, Siderca was providing estimated cost data rather than
the actual data requested and therefore the information was, on its face, not what Commerce
requested. Commerce did not, however, reject th e information on that basis. Rather, although
Argentina contends that Commerce "merely offers a conclusory statement that it is 'unable to rely on
the data'," Commerce explained, at length, how Siderca's estimated production cost data was
inconsistent with other cost data for steel products in the Section 129 Determination.
81 T h r e e
paragraphs of discussion do not cons titute a conclusory statement. For all of these reasons, the
United States did not act inconsistently with Article 6.6.

77 See e.g. Memo Re: Information for the Record, App. II (CPB entries of ARG OCTG)
(Exhibit ARG-18).
78 Guatemala – Cement II, para. 8.221.
79 Argentina First Submission, para. 170.
80 Decision Memorandum, p. 9 (Exhibit ARG-16).
81 Decision Memorandum, p. 8-9 (Exhibit ARG-16). See also Memo Re: Inconsistencies in Siderca's
Cost Data (Exhibit ARG-21).

(d) Article 6.9

76. Article 6.9 requires authorities, before a final determination is made, to inform all interested
parties of the essential facts under consideration wh ich form the basis for the decision whether to
apply definitive measures. Argentina argues that the United States did not comply with its obligations
under this provision. Specifically, Argentina ar gues that memoranda accompanying the Section 129
Determination "were not made 'in sufficient time for parties to defend their interests'".82

77. As with its arguments regarding Article 6.4, Argentina simply asserts that memoranda were
placed in the file the same day as the determination was issued, as if that alone satisfies Argentina's
burden of proving its claim. Argentina fails even to discuss whether those memoranda contain
essential facts forming the basis for the decision, the elemental aspects of proving an Article 6.9
claim.
83 As a result, Argentina has not made a prima facie case of a violation of Article 6.9.84

78. Argentina also states that the United States did not issue a draft or preliminary determination
"as it said it would do in the arbitration pursuant to Article 21.3 of the DSU".
85 Once again, the
United States said it would issue a preliminary determination if it were given 15 months to implement
the DSB recommendations and rulings. That Argentina continues to reference the US submission to
the arbitrator simply reinforces the US argumen t that it needed 15 months to implement the
recommendations and rulings in order to provide th e additional procedural steps not required by
Article 6 but that Commerce routinely offers, su ch as a preliminary determination, and which
Argentina's companies apparently would have preferred.

4. Article 6.8 and Annex II

79. Article 6.8 provides that in cases in which a ny interested party refuses access to or otherwise
does not provide necessary information, the determ ination may be made on the basis of the facts
available. Argentina argues that Commerce "did not comply with the conditions set out in Article 6.8
and Annex II for recourse to 'facts available'".86

80. The United States recalls that an Article 11.3 determination of likelihood in a sunset
proceeding is different from an Article 2 determin ation of dumping in an investigation or an
assessment review. In those latter proceedings, it is necessary to have the respondent's data in order
to calculate its individual margin. The rules in Articles 2 and 9 establish a presumption for
investigations and assessment reviews that the Memb er will use that company's data to calculate a
margin. For example, Article 2.1.1. states that "costs shall normally be calculated on the basis of
records kept by the exporter or producer under inv estigation . .". Without the data, substitute data
may be necessary to calculate a margin.

81. In contrast, a sunset review has no such requirement to determine likelihood based on the
actual data of the foreign producers and exporters. The Appellate Body conf irmed that Article 11.3

82 Argentina First Submission, para. 191.
83 See, e.g., Panel Report, Argentina – Definitive Anti-Dumping Duties on Poultry from Brazil ,
WT/DS241/R, para. 7.223 (adopted 19 May 2003) ("Argentina – Poultry").
84 Indeed, the danger in making such vague and unsubstantiated assertions is revealed by examining
just one of the memoranda Argentina identifies in support of its Article 6.9 claim – it consists simply of pages
from a website identifying the source of information disclosed earlier, on 22 November 2005. See Memo
Re: Preston Publishing Website Information (Exhibit ARG-22).
85 Argentina First Submission, para. 192.
86 Argentina First Submission, para. 183.

does not "identify any particular factors that authorities must take into account in making such a
determination".87

82. In this context, Argentina's claim is exposed as being without merit. First, with respect to
Siderca, the result of Commerce's analysis of Siderca's estimated cost information was no company-
specific finding regarding Siderca. The Section 129 Determination was based on the findings of
likely dumping by Acindar and the decreased volumes. Therefore, there was no use of "facts
available" and no violation of either Article 6.8 or Annex II.

83. With respect to Acindar, Acindar provided no cost information, so there was no information
to reject.88 As a result, there is no violation of either Article 6.8 or Annex II.

D. ARTICLE 13

84. As the United States noted at the DSB meeti ng at which the Panel was established, USTR
directed Commerce to implement the Section 129 De termination on 16 March 2006. As Section 129
makes clear, implementation is effective as of the date on which USTR directs implementation. 89 The
basis for Argentina's Article 13 clai m is the supposed US failure to implement the determination, but
that determination had been implem ented before the Panel was established. Therefore, there is no
basis for Argentina's claim.

V. ARGENTINA'S REQUEST FOR A SUGGESTION

85. Argentina "submits that it had a right to termination of this measure" 90 and asks the Panel to
"suggest" that the United States terminate the measure. 91 That assertion is plainly incorrect. No such
right is found in the text of the DSU or the Anti-Dumping Agreement, as the Appellate Body has
recognized in its reasoning in US – Mexico OCTG, where it stated:

The fact that the USDOC acted inconsistently with the requirements of Article 11.3 in
its likelihood-of-dumping determina tion does not necessarily imply that the
underlying anti-dumping duties must be terminated immediately.92
86. Nor is there any basis for making such a suggestion. A Member retains the right to determine
the manner of implementing DSB recommendations and rulings. While Argentina may prefer to have
the measure terminated, the question in this proceedi ng is the existence or consistency of the measure
taken to comply. In addition, under Article 19.1 of the DSU, any "suggestion" by a panel is "in
addition" to any recommendations. It is unclear that Argentina is asking the Panel to make a
recommendation in this proceeding. Argentina appe ars to explicitly request that the Panel make no
recommendation
93 but then switches from requesti ng a "suggestion" to requesting a

87 US – Corrosion-Resistant Steel Sunset Review (AB), para. 123.
88 Decision Memorandum, pp. 6-7 ("we find that [Acindar's] submission failed to include any data
adequate to calculate costs for the subject merchandise. Acindar claimed that it no longer has the product-
specific cost information in the form the Department requested and, therefore, is unable to provide the
requested cost data specific to OCTG sales during the period . . . .")
89 See Uruguay Round Agreements Act , Section 129(c)(B); see also Notice of Implementation under
Section 129 of the Uruguay Round Agreements Act; An ti-Dumping Measures Concerning Oil Country Tubular
Goods from Argentina, 71 Fed. Reg. 19873 (18 April 2006) (Exhibit US-2).
90 Argentina First Submission, para. 215.
91 Argentina First Submission, para. 210.
92 Appellate Body Report, United States – Anti-Dumping Measures on Oil Country Tubular Goods
from Mexico, para. 187, WT/DS282/AB/R (adopted 28 November 2005).
93 Argentina First Submission, para. 219.

"recommendation".94 To the extent Argentina is asking that this be a "recommendation" rather than a
"suggestion", Argentina's request is inconsistent with Article 19.1 of the DSU which specifies the
content of any "recommendation" by a panel.

87. The United States respectfully request s the Panel to decline the request.

VI. CONCLUSION

88. For the foregoing reasons, the United States respectfully requests that the Panel reject
Argentina's claims.

94 Argentina First Submission, para. 224.

EXHIBIT LIST

Number Document

US-1 Procedures for Conducting Five-Year Revi ews of Anti-Dumping and Countervailing
Duty Orders: Proposed rule, 70 Fed. Reg. 47738 (15 August 2005).

US-2 Notice of Implementation under Section 129 of the Uruguay Round Agreements Act;
Anti-Dumping Measures Concerning Oil C ountry Tubular Goods from Argentina,
71 Fed. Reg. 19873 (18 April 2006).

US-3 Oil Country Tubular Goods Other t han Drill Pipe from Argentina, 68 Fed.
Reg. 13262 (19 March 2003) (final results and rescission in part of anti-dumping duty
administrative review).

US-4 19 C.F.R. § 351.218(f)(3) (US Department of Commerce regulations).

US-5 Letter from US Department of Commerce to Embassy of Argentina
(14 October 2005).

US-6 Letter from Acindar Industria de Acer os S.A. to US Department of Commerce
(14 December 2005).