Document: WT/DS268/R Page C-1 ANNEX C SECOND WRITTEN SUBMISSIONS BY THE PARTIES Contents Page Annex C-1 Second Written Submission of Argentina C-2 Annex C-2 Second Written Submission of the United States C-64
Document codes: WT/DS268/R
Complainant: Argentina
Respondent: U.S.
Third parties: China, EU, Japan, South Korea, Mexico, Taiwan
Dispute stage: Implementation & Compliance
Agreements cited: Art. 1, 2, 3, 6, 11, 12, 18, Annex II  Anti-dumpingArt. VI, X  GATT 1994Art. XVI:4  Agreement Establishing the World Trade Organization

ANNEX C

SECOND WRITTEN SUBMISSIONS BY THE PARTIES

Contents Page
Annex C-1 Second Written Submission of Argentina C-2
Annex C-2 Second Written Submission of the United States C-64

I. INTRODUCTION
1. On 15 December 2003, the Appellate Body confirmed in Sunset Review of Steel from Japan
that Article 11.3 of the Anti-Dumping Agreement mandates termination of anti-dumping duties five
years after their imposition. Continuation of an anti-dumping measure is an exception, and is only
justified where the authority “determine[s]” in a “r eview” that termination of the measure would be
likely to lead to continuation or recurrence of “dumping” and “injury.”1
2. The consequence for failing to satisfy the conditio ns are clear: termination of the measure.
To invoke the exception and continue an anti-dumping measure beyond five years requires a
“rigorous examination” of whether the continuation or recurrence of dumping and injury would be
“probable.”2 Further, the likelihood determination must be based on positive evidence 3 and is subject
to the substantive standards established in the Anti-Dumping Agreement.4
3. The United States takes a very different view in its first submission and its oral statement.
According to the United States, Article 11.3 is pr actically devoid of obligations and constitutes a
single bare-bones commitment. 5 Under this view, anti-dumping measures can be continued
indefinitely, on almost any basis. Indeed, the United States indicated during the Panel’s First
Substantive Meeting with the Parties that, if a comp any dumped in the past, it is reasonable to assume
that that company would dump in the future.
4. With respect to the likelihood of dumping determination, although the United States has a
complicated scheme of procedural rules, a routine inspection reveals that the US Department of
Commerce (the “Department”) never makes the meaningful “determination” required by Article 11.3.
This is true whether the Department applies the wa iver provisions or simply resorts to the three
“checklist” criteria established by the statute, th e Statement of Administrative Action (“SAA”), and
the Sunset Policy Bulletin . There is only one factor that matters for the likelihood of dumping
determination: whether the US i ndustry participated in the sunset review. The evidence speaks for
itself: In the 223 cases (as of December 2003) in which the US industry has expressed an interest in
continuing the anti-dumping meas ure, the Department has found a likelihood of continuation or
recurrence of dumping in each case. The US industry has 223 wins and 0 losses on the issue of likely
dumping.
6
5. In this particular case, after concluding that respondent interested parties had “waived” their
participation (which results in a statutorily mand ated finding of likelihood of dumping), and after
invoking the “expedited review” procedures, the Department identified only two facts in its
determination that dumping was “likely” to contin ue: (1) a five-year old margin, calculated on the
basis of “zeroing;” and (2) a decline in import volume. The Appellate Body in Sunset Review of Steel
from Japan spoke to both issues, and found that neither (independently or together) could support a

1 See Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-
Resistant Carbon Steel Flat Products from Japan , WT/DS244/AB/R, circulated 15 December 2003, para. 104
(“Sunset Review of Steel from Japan”).
2 Id. at paras. 111, 113.
3 See Panel Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant
Carbon Steel Flat Products from Japan, WT/DS244/R, circulated 14 August 2003, para. 7.177 (“Sunset Review
of Steel from Japan”).
4 See Appellate Body Report, Sunset Review of Steel from Japan, para. 128.
5 According to the United States, Article 11.3 is “very limited” and sets virtually no restraints or
limitations on a Member’s ability to maintain anti-dumping measures. See US First Submission, para. 3. The
United States stated during the Panel’s First Substantiv e Meeting with the Parties that “Article 11.3 does not
prescribe how a Member should go about making a likelihood determination in a sunset review.” Opening
Statement of the United States at the First Meeting of the Panel with the Parties, WT/DS268, 9 December 2003,
6 See US Department of Commerce Sunset Reviews (ARG-63 and ARG-64).

determination under Article 11.3 that dumping is likely to continue.
7 And when the dumping margin
is extremely low – such as the 1.36 per cent margin in this case – the reliability of such margin is
diminished further.
6. With respect to the likelihood of injury determ ination, the analysis by the US International
Trade Commission (the “Commission”) is equally problematic. The Commission has insisted “likely”
does not mean probable, and is now faced with the Appellate Body statement that likely does mean
probable.8 The Commission’s analysis of the volume, price, and impact factors in this case vividly
demonstrates that the Commission certainly was not determining what wa s probable, as it often
simply asserted that the conditions that existed at the time of the original injury investigation
supported the view that injury was “likely” to contin ue or recur. Also, the cumulated analysis of the
likelihood of injury diminishes the rights of indi vidual WTO Members who have the misfortune of
being included in the aggregate de termination, and the US statutory provisions fail to satisfy the
“likely” standard by extending the period of time outward (with no limitations) within which the
Commission must consider whether domestic producers might be injured.
7. The plain wording of the US sunset determinatio ns challenged by Argentina often contradict
the arguments advanced by the United States in its First Submission. 9 In addition, the US First
Submission suffers from a number of irreconcilable in ternal contradictions. These contradictions cast
serious doubts regarding the US arguments in defenc e of the sunset determinations. The Panel must
examine Argentina’s claims based on the words used in the US sunset determinations and not on the
subsequent post hoc rationalizations of those decisions in the US written submissions.
8. The principal obligation and corresponding right created by Article 11.3 – termination of anti-
dumping measures after five years – must not be diminished. Otherwise, the limited exception for
maintaining an anti-dumping measure will supersed e the principal obligation of Article 11.3.
Therefore, Argentina respectfully re quests that the Panel, in addition to making specific findings of
WTO violations, suggest pursuant to DSU Article 19.1 that the United States terminate the anti-
dumping duties on oil country tubular goods (“OC TG”) from Argentina and repeal or amend WTO-
inconsistent laws, regulations, procedures, and administrative provisions.
II. THE SUBSTANTIVE WTO OBLIGATIONS AT ISSUE IN THIS DISPUTE
A. THE PRIMARY OBLIGATION OF ARTICLE 11.3 OF THE ANTI-DUMPING AGREEMENT IS
TERMINATION OF THE ANTI-DUMPING MEASURE
9. The primary obligation of Article 11.3 of the Anti-Dumping Agreement is termination of anti-
dumping duties after five years. The Appellate Body in Sunset Review of Steel from Japan reaffirmed
the principle it first articulated in Steel from Germany. Continuation of the measure is the exception,
and is only permissible if the au thorities conduct a “review,” undert ake a “rigorous examination” of
the facts, and “determine” that termination of the anti-dumping measure would be likely to lead to
continuation or recurrence of injurious dumping. 10 The Appellate Body also reaffirmed that, “[i]f any
one of these conditions is not satisfied, the duty must be terminated.”11

7 See Appellate Body Report, Sunset Review of Steel from Japan, paras. 127-128, 130, 177.
8 See id. at paras. 110-111.
9See Argentina’s Oral Statement in the Panel’s First Substantive Meeting with the Parties, DS268,
9 December 2003, para.7 (“Argentina’s First Oral Statement”).
10 Appellate Body Report, Sunset Review of Steel from Japan, paras. 104, 113.
11 Id. at para. 104; s ee also Appellate Body Report, United States – Countervailing Duties on Certain
Corrosion – Resistant Carbon Steel Flat Products from Germany , WT/DS213/AB/R, adopted
19 December 2002, para. 88 (“ Steel from Germany”) (interpreting Article 21.3 of the SCM Agreement). The
Appellate Body in Sunset Review of Steel from Japan concluded that, “[g]iven the parallel wording of these two
articles, we believe that the explanation, in our Report in [ Steel from Germany ], of the nature of the sunset

10. In interpreting the meaning of the words “review” and “determine” in Article 11.3, the
Appellate Body noted the “investigatory and adjudicatory aspects” of Article 11.3 reviews:
This language in Article 11.3 makes clea r that it envisages a process combining both
investigatory and adjudicatory aspects. In other 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.12
11. With respect to the evidentiary basis for the likelihood determination, the Appellate Body
affirmed the Panel’s statement that the authority must ground its determination on a “sufficient factual
basis” to allow it to “draw reasoned and adequate conclusions concerning the likelihood” of
continuation or recurrence. 13 Moreover, the Appellate Body stated that its discussion in Steel from
Germany of the sunset review provision in the SC M Agreement, Article 21.3, was an “apt
description” of the Article 11.3 sunset review.14 In Steel from Germany, the Appellate Body held that
the authority must make a “fresh determination” in a sunset review that is forward-looking and “based
on credible evidence.” 15 The Appellate Body in Steel from Germany thus affirmed the Panel’s
statement in that dispute that the authority’s lik elihood determination cannot be based solely on
outdated information, but rather “should rest on the evaluation of the evidence that it has gathered
during the original investigation, the intervening reviews and finally the sunset review.”16
12. Ultimately, the Appellate Body in Sunset Review of Steel from Japan made clear that the
conduct of a review and the determination of the li kelihood of dumping and injury in order to invoke
the exception requires a “rigorous examination” that comports with the “exacting nature” of
obligations imposed by Article 11.3:
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 sunset 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 initiating a sunset review. The
last sentence of Article 11.3 allows the rele vant duty to continue 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 fi ve 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,

review provision in the SCM Agreement [(Article 2.3)] also serves, mutatis mutandis, as an apt description of
Article 11.3 of the Anti-Dumping Agreement .” Appellate Body Report, Sunset Review of Steel from Japan ,
n.114 (citing Appellate Body Report, Steel from Germany, paras. 63 and 88.).
12 Appellate Body Report, Sunset Review of Steel from Japan, para. 111.
13 Id. at paras. 114-115 (citing Panel Report, Sunset Review of Steel from Japan, para. 7.271).
14 See id. at n.114.
15 Appellate Body Report, Steel from Germany, para. 88.
16 Panel Report, United States – Countervailing Duties on Certain Corrosion–Resistant Carbon Steel
Flat Products from Germany, WT/DS213/R, adopted 19 December 2002, para. 8.95 (“ Steel from Germany ”)
(emphasis added).

involving a number of procedural steps, and requiring an appropriate degree of
diligence on the part of the national authorities.
17
13. Finally, the Appellate Body in Sunset Review of Steel from Japan plainly stated the
consequences where a WTO Member fails to conduct a sunset review or fails to make the required
likelihood determination under Article 11.3: “If any one of these conditions is not satisfied, the duty
must be terminated.”18
14. There is a WTO-inconsistent presumption built into the system estab lished by the United
States to implement its Article 11.3 obligation. The US waiver provisions mandate a finding of likely
dumping without a review,19 without any analysis, and without the requisite determination required by
Article 11.3. The basis for the waiver mechanism itself presumably stems from the presumption that
non-participation in sunset reviews (whether voluntarily or non-voluntarily) means that in the event of
termination dumping would be likely to continue. Then, even if the Department does conduct a
“review” (whether “expedited” or “full”), the irrefutable presumption prescribed by the statute, the
SAA, and the Sunset Policy Bulletin operates to preclude the Department from conducting the type of
“review” and from making the kind of “d etermination” required by Article 11.3. 20 In defending the
US waiver provisions and denying the existence of the irrefutable presumption in its first submission,
the United States attempts to diminish the import of Article 11.3’s use of the terms “review” and
“determination.” According to the United States, as used in Article 11.3, “the words ‘review’ and
‘determine’ do not contain the broad substantive rules suggested by Argentina.”21
15. The US position is not tenable. The use of defined terms such as “dumping” and “injury” in
Article 11.3 makes clear that the substantive provisions of other articles of the Anti-Dumping
Agreement apply to the likelihood determination. Further, an authority’s likelihood determination
must be grounded on a “sufficient factual basis” 22 that rests “on the evaluation of evidence that it has
gathered during the original investigation, the intervening reviews and finally the sunset review.”23
16. The United States argues that “‘current information’ is not the issue in a sunset review
conducted pursuant to Article 11.3.” 24 “Rather,” the United States submits, “the issue under Article
11.3 is whether dumping and injury are likely to con tinue or recur in the event of the expiry of the
duty, an inherently forward-looking inquiry.” 25 Thus, the United States suggests that current
information is not relevant to the prospective analysis of the likelihood of dumping and injury
required by Article 11.3.
17. Consequently, under the US approach, the authorities do not conduct the kind of “rigorous
examination” required by Article 11.3 in order to invoke the excep tion and to justify the continuation
of an anti-dumping measure beyond five years.
26 As the Panel stated in Sunset Review of Steel from
Japan:
We recall that one of the fundamental goals of the Anti-Dumping Agreement as a
whole is to ensure that objective determinations are made based, to the extent
possible, on facts. Thus, to the extent that it will rest upon a factual foundation, the
prospective likelihood determination will inevitably rest on a factual foundation

17 Appellate Body Report, Sunset Review of Steel from Japan, para. 113 (emphasis added).
18 Id. at para. 104.
19 See Argentina’s First Submission, Section VII.A.1
20 See id. at Section VII.B.2.
21 US First Submission, para. 154.
22 Panel Report, Sunset Review of Steel from Japan, para. 7.177.
23 Panel Report, Steel from Germany, para. 8.95 (emphasis added).
24 US First Submission, para. 265.
25 Id.
26 Appellate Body Report, Sunset Review of Steel from Japan, para. 113.

relating to the past and present. The investigating authority must evaluate this factual
foundation and come to a reasoned conclusion about likely future developments.27
18. Accordingly, contrary to the US position, the authority must examine current information in
order to support the prospective likelihood determina tion with a sufficient factual basis. A body of
evidence consisting solely of past information for an affirmative likelihood determination is deficient
and inconsistent with Article 11.3 and cannot cons titute positive evidence that dumping would be
likely to continue.
B. THE OBLIGATIONS IN ARTICLES 2, 3, 6, AND 12 OF THE ANTI-DUMPING AGREEMENT ARE
APPLICABLE TO REVIEWS CONDUCTED UNDER ARTICLE 11.3
19. As Argentina set out in its first submission, 28 the Article 11.3 obligation requires compliance
with other provisions of the Anti-Dumping Agreement, including Article 2 (Determination of
Dumping), Article 3 (Determination of Injury), Artic le 6 (Evidence), Article 12 (Notice), and Article
18 (Final Provisions). The United States argues that the substantive obligations contained in other
provisions of the Anti-Dumping Agreement do not ap ply to Article 11.3, particularly Articles 2 and
3.29
20. The WTO jurisprudence soundly refutes the US view on this point.30
1. Article 2 of the Anti-Dumping Agreement a pplies to sunset reviews conducted under
Article 11.3
21. As confirmed by the Appellate Body in Sunset Review of Steel from Japan , Article 2 of the
Anti-Dumping Agreement defines “dumping” “for the purposes of the Anti-Dumping Agreement,”
including sunset reviews under Article 11.3.31 The Appellate Body explained,
[T]he words “[f]or the purpose of this Agre ement” in Article 2.1 indicate that this
provision describes the circumstances in which a product is to be considered as being
dumped for purposes of the entire Anti-Dump ing Agreement, including Article 11.3.
This interpretation is supported by the fact that Article 11.3 does not indicate, either
expressly or by implication, that “dumping” has a different meaning in the context of
sunset reviews than in the rest of the An ti-Dumping Agreement. Therefore, Article
2.1 of the Anti-Dumping Agreement and Article VI:1 of the GATT 1994 suggest that
the question for investigating authorities, in making a likelihood determination in a
sunset review pursuant to Article 11.3, is whether the expiry of the duty would be
likely to lead to continuation or recurren ce of dumping of the product subject to the
duty (that is, to the introduction of that product into the commerce of the importing
country at less than its normal value). Th e Panel also appeared to reach a similar
conclusion.32

27 Panel Report, Sunset Review of Steel from Japan, para. 7.279 (emphasis added).
28 Argentina’s First Submission, Section VI.C.3.
29 US First Submission, paras. 141-142.
30 See Appellate Body Report, Sunset Review of Steel from Japan, paras. 109, 127, 128, 130; Appellate
Body Report, Steel from Germany, paras. 69 n.59, 79-81; Panel Report, United States – Anti-Dumping Duty on
Dynamic Random Access Memory Semiconductors (DRAMS) of One Megabit or Above from Kore a,
WT/DS99/R, adopted 19 March 1999, para. 6.59 n.501 (“DRAMS from Korea”); Panel Report, Sunset Review of
Steel from Japan, paras. 7.99-7.100, 7.176.
31 See Appellate Body Report, Sunset Review of Steel from Japan, paras. 126-128.
32 Id. at para. 109.

22. The United States argues that only Article 2.1 ap plies to Article 11.3 insofar as it provides the
general meaning for the term “dumping.”
33 The United States further contends that the remaining
provisions of Article 2 do not apply to Article 11.3, because “Article 11.3 does not require a
determination that a particular amount of dumping is likely to continue or recur in the future . . . .” 34
According to the United States, such a determinatio n of likely dumping would be impossible as there
is no way to measure likely future values for pric es, costs, and profits in order to calculate the
dumping margin pursuant to Article 2. 35 Therefore, the United States argues, the requirements of
Article 2 do not apply to sunset reviews.
23. The Appellate Body expressly ruled that all the provisions of Article 2 – and not just
Article 2.1 – apply to sunset reviews under Article 11.3. 36 In doing so, the Appellate Body reversed
the Panel’s finding that “the substantive disciplines in Article 2 governing the calculation of dumping
margins in making a determination of dumping [do not] apply in making a determination of likelihood
of continuation or recurrence of dumping under Article 11.3.”37 The Appellate Body stated,
Article 2 sets out the agreed disciplines in the Anti-Dumping Agreement for
calculating dumping margins. As observed earlier, we see no obligation under
Article 11.3 for investigating authorities to calculate or rely on dumping margins in
determining the likelihood of continuation or recurrence of dumping. However,
should investigating authorities choose to rely upon dumping margins in making their
likelihood determination, th e calculation of these margins must conform to the
disciplines of Article 2.4. We see no other provisions in the Anti-Dumping
Agreement according to which Members may calculate dumping margins.

It follows that we disagree with the Panel’ s view that the disciplines in Article 2
regarding the calculation of dumping margins do not apply to the likelihood
determination to be made in a sunset review under Article 11.3.
38
24. Therefore, under Article 11.3, where the auth ority relies on dumping margins calculated in
previous determinations in making the likelihood determination, it must ensure that those dumping
margins are consistent with the requirements of Article 2.
25. Further, if the authority calculates a new dump ing margin for the Article 11.3 review, then
such a margin must satisfy the requirements of Arti cle 2. In order to make the prospective analysis
required by Article 11.3, the authority must base its likelihood determination on both past and current
information.39 To know whether dumping would likely “continue” or “recur” under Article 11.3, an
authority must have current information about dumping. 40 In other words, it becomes necessary to
determine if dumping exists in order to assess it s probable continuation. Alternatively, it becomes
necessary to determine the absence of dumping in order to assess prospectively the probability of
recurrence. Therefore, to the extent the authority calculates a dumping margin in order to evaluate
whether dumping is currently present or absent in order to make the likelihood determination under
Article 11.3, that dumping margin must comport with the disciplines of Article 2.

33 US First Submission, para. 254.
34 Id.
35 Id. at para. 255.
36 See Appellate Body Report, Sunset Review of Steel from Japan, para. 128.
37 Panel Report, Sunset Review of Steel from Japan, para. 7.168.
38 Appellate Body Report, Sunset Review of Steel from Japan, paras. 127-128.
39 See Panel Report, Sunset Review of Steel from Japan , para. 7.279 (“[T]he prospective likelihood
determination will inevitably rest on a factual foundation relating to the past and present.”).
40 See also Third Party Submission of the European Communities, para. 12.

26. Contrary to the US assertion, the substantiv e requirements of Article 2 apply to sunset
reviews under Article 11.3.
2. Article 3 of the Anti-Dumping Agreement a pplies to sunset reviews conducted under
Article 11.3
27. Article 3 defines “injury” as that term is used throughout the Anti- Dumping Agreement.
Thus, an authority’s determination under Article 11.3 of whether “injury” would be likely to continue
or recur must satisfy the requiremen ts of Article 3. For the United States, injury in Article 11.3 is
undefined.
28. The logic behind the Appellate Body’s ruling in Sunset Review of Steel from Japan that
“dumping” for purposes of Article 11.3 is subject to the disciplines of Article 2 requires the parallel
finding that “injury” for purposes of Article 11.3 is subject to the disciplines of Article 3.41
29. Footnote 9 states: “Under this Agreement the term ‘injury’ shall, unless otherwise specified,
be taken to mean material injury to a domestic in dustry, threat of material injury to a domestic
industry or material retardation of the establishmen t of such an industry and shall be interpreted in
accordance with the provisions of this Article .” (Emphasis added.) Th e Appellate Body used the
SCM Agreement’s equivalent of this very footnote as an illustration of how the injury concept applies
throughout the Agreement, including in sunset reviews.42
30. The US contention that Footnote 9 is a mere “drafting device” designed to avoid the need to
recite each of the three distinct forms of injury throughout the agreement is unpersuasive. 43 The Panel
in DRAMS from Korea noted “that, by virtue of note 9 of the [Anti-Dumping] Agreement, the term
‘injury’ in Article 11.2 ‘shall be interpreted in accordance with the provisions’ of Article 3.”44 There
is no reason why injury in Article 11.2 should be treated differently than injury for purposes of
Article 11.3.
31. Nor does the United States attempt to explain how injury in Article 11.1 could possibly be
different from injury in Article 3. Article 11.1 states that “[a]n anti-dumping duty shall remain in
force only as long as and to the extent necessary to counteract dumping which is causing injury.”
There is no suggestion that the drafters of the Agre ement intended in Article 11.1 anything other than
injury as defined in Article 3 and specified in Foot note 9. And there can be no question that the
overarching principles of Article 11.1 provide the immediate context of Article 11.3.
32. The Panel in Sunset Review of Steel from Japan interpreted Footnote 9 as follows:
[T]he term ‘injury’ as it appears throughout the Anti-Dumping Agreement –
including Article 11 – is to be construed in accordance with this footnote, unless
otherwise specified. This would seem to su pport the view that the provisions of
Article 3 concerning injury may be generally applicable throughout the Anti-
Dumping Agreement and are not limited in applicatio n to investigations. Article 11
does not seem to explicitly specify otherwise in the case of sunset reviews.45
33. The US also raises the distinction between th e “determination of injury” in an original
investigation and a “determination of the likely cont inuation or recurrence of injury” in a sunset

41 See Appellate Body Report, Sunset Review of Steel from Japan, paras. 126-128.
42 See Appellate Body Report, Steel from Germany, para. 69 n.59.
43 US First Submission, para. 291.
44 Panel Report, DRAMS from Korea , para. 6.59 n.501; see also Panel Report, Sunset Review of Steel
from Japan, para. 7.99.
45 Panel Report, Sunset Review of Steel from Japan, para. 7.99.

review.
46 But this distinction does not alter the paramount legal requirement under the Anti-Dumping
Agreement that the core focus of each determinatio n – “injury” – must be interpreted in accordance
with the provisions of Article 3.
34. Moreover, that Articles 3 and 11.3 do not reference each other does not indicate, as the United
States argues,47 that the provisions of Article 3 do not appl y to Article 11.3 suns et reviews. Rather,
explicit cross-referencing is not necessary, becaus e the terms of Article 3 (through Footnote 9 and
Article 3.1) apply throughout the Anti-Dumping Agreement, including in Article 11.3.48
35. In sum, Argentina views the issue as one of the fundamental disagreements between the
United States and other WTO Members involved in this proceeding. Does “injury” as used in
Article 11.3 differ from the meaning of “injury” as defined under the Agreement in Footnote 9, and do
the substantive and procedural standards for eval uating injury contained in Article 3 apply to
determinations made under Article 11.3? Under the Agreement, the clear answer to both of these
questions is “yes.” Moreover, this is not merely Argentina’s view – all of the Third Parties similarly
agree that this interpretation is mandated by the Agreement.49
3. Articles 6, 12, and 18 of the Anti-Dumping Agreement apply to sunset reviews
conducted under Article 11.3
36. Article 6 of the Anti-Dumping Agreement applie s to reviews conducted under Article 11 by
virtue of the cross-reference contained in Artic le 11.4: “The provisions of Article 6 regarding
evidence and procedure shall apply to any review carried out under this Article.” In particular,
Article 6.1 requires that “[a]ll inte rested parties in an anti-dumping investigation shall be given . . .
ample opportunity to present . . . evidence . . . .” And Article 6.2 requires that the authority provide
all interested parties “a full opportunity for the defence of their interests.”
37. The Appellate Body in Sunset Review of Steel from Japan recognized that the cross-reference
in Article 12.3 to Article 11 reviews indicates that the drafters of th e Anti-Dumping Agreement
intended for interested parties in Article 11.3 sunset reviews to have “the right to receive notice of the
process and reasons fo r the determination.”50 The United States does not dispute that the provisions
of Article 12 apply mutatis mutandis to sunset reviews under Article 11.3.51
38. Article 18.3 of the Anti-Dumping Agreement expres sly provides that “the provisions of this
Agreement shall apply to investigations, and reviews of existing measures , initiated pursuant to
applications which have been made on or after the date of entry into force of the WTO Agreement.”
(Emphasis added.) Thus, the Anti-Dumping Agreement applies to sunset reviews of anti-dumping
measures imposed prior to the entry into force for a Member of the WTO Agreement. The United
States does not dispute this.

46 US First Submission, paras. 289, 297-301.
47 See id. at para. 296.
48 Article 3.1 states that “[a] determination of injury for purposes of Article VI of GATT 1994 shall be
based on positive evidence and involve an objective examination . . . .” (Emphasis added.) The Anti-Dumping
Agreement clarifies Article VI of GATT 1994. Therefore, the text of Article 3.1 unambiguously provides that
all
 determinations of injury under the Anti-Dumping Agreement – whether a determination of injury in an
original investigation or a determination of the likelihood of injury in a sunset review – are subject to the
requirements of that article.
49 See Third Party Submissions of European Communities, paras. 123-127; Japan, paras. 9-15; Korea,
50 Appellate Body Report, Sunset Review of Steel from Japan, para. 112.

III. THE DEPARTMENT’S SUNSET DETERMINATION
A. THE US SUNSET REVIEW WAIVER PROVISIONS, 19 USC. § 1675(C)(4) AND 19 C.F.R. §
351.218(D)(2)(III), ARE INCONSISTENT AS SUCH WITH THE ANTI-DUMPING AGREEMENT
1. US arguments that waiver is applied on a company-specific basis are unavailing and do
not alter the conclusion that the Waiver Provisions violate Articles 11.3, 11.4, 6.1, and
6.2
39. The US waiver provisions, 19 USC. § 1675 (c)(4)(B) and 19 C.F.R. § 351.218(d)(2)(iii),
violate Article 11.3 because they mandate a finding of likely dumping. 52 Under Article 11.3, if the
WTO Member wishes to invoke the exception and continue the measure, it must meet specified
requirements. The Panel in Sunset Review of Steel from Japan confirmed that Article 11.3 “precludes
an investigating authority from simply assuming” that dumping and injury would likely continue or
recur.53 The Panel further recognized that “one of the fundamental goals of the Anti-Dumping
Agreement as a whole is to ensu re that objective determinations are made based, to the extent
possible, on facts.”54 Article 11.3 requires that the authority take action and ground its determination
on a “sufficient factual basis” to allow it to “draw reasoned and adequate conclusions concerning the
likelihood” of continuation or recurrence.
55 The Appellate Body confirmed that the authority “must
conduct a rigorous examination in a sunset review before the exception (namely, the continuation of
the duty) can apply.”56 The authority must make a “fresh determination” that is forward-looking and
“based on credible evidence.”57
40. The United States does not dispute that the application of the waiver provisions mandates a
finding of likely dumping. The United States argues, however, that the waiver provisions do not
preclude the Department from conducting a sunset review as required by Article 11.3, because the
mandatory likelihood determination under section 167 5(c)(4)(B) “is limited to the party that failed to
respond.”58 According to the United States, “regardless of whether a respondent interested party
affirmatively waives participation or Commerce find s that the failure of the respondent interested
party to file a substantive response or a comp lete substantive response constitutes a waiver,
Commerce is still required by US law and its ow n regulations to initiate and conduct the required
sunset review.”59
41. First, as explained in detail below, this is no t how the waiver provisions were applied in this
case. Siderca submitted a complete substantive response, but the Department nevertheless determined
that it “did not receive an adequate response from re spondent interested parties. Pursuant to section
351.218(d)(2)(iii) of the Sunset Regulations, this constitutes a waiver of participation.”60
42. The US argument fails because it relies on an over ly narrow interpretation of “review.” As is
clear from the Appellate Body, Article 11.3 requires a “rigorous examination” of evidence that results

52 See Argentina’s First Submission, Sec. VII.A.1.
53 See Panel Report, Sunset Review of Steel from Japan, para. 7.177.
54 Id. at para. 7.279.
55 Id. at para. 7.177.
56 Appellate Body Report, Sunset Review of Steel from Japan, para. 113.
57 Appellate Body Report, Steel from Germany, para. 88.
58 US First Submission, para. 146.
59 Id. at para. 148.
60 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 5 (“ Issues and
Decision Memorandum ”) (ARG-51); see also Oil Country Tubular Goods from Argentina: Adequacy of
Respondent Interested Party Response to the Notice of Initiation , A – 357-810 (Dep’t Comm., 22 August 2000)
at 1 (Siderca filed a “complete substantive response”) and at 2 (the Department determined Siderca’s response
to be “inadequate”) (“Determination to Expedite”) (ARG-50).

in a meaningful review. The authority must activel y evaluate a sufficient body of positive evidence
and ultimately render a determination that is ba sed on that evidence. The review required by
Article 11.3 cannot be a mere fo rmality and lack substance. By mandating a determination of likely
dumping without an evaluation of evidence where a respondent interested party waives – or is deemed
by the Department to have waived – participation in the sunset proceeding, the US waiver provisions
violate Article 11.3. Indeed, even where only one out of multiple respondents subject to the order
waives participation in a sunset review, the US waiver provisions violate Article 11.3. As the
Appellate Body confirmed, Article 11.3’s requir ement to determine in a review whether the
continuation or recurrence of dumping would be likely does not permit the Department to
automatically conclude – without an evaluation of facts – that dumping would be likely. The problem
is even more pronounced when multiple respondent interested parties are deemed to have waived their
participation.
43. For example, in this case, the ultimate effect is the same whether waiver is applied on a
company-specific or order-wide basis. In this case, the Department deemed the Argentine exporters
to have waived, and thus issued a determination that dumping was likely to continue or recur pursuant
to the waiver provisions. Therefore, waiver on th e company level was equivalent to waiver on an
order-wide basis because the Department deemed the companies accounting for 100 per cent of the
alleged exports to have waived participation.
2. The US arguments that the Waiver Provisions merely serve as an efficiency mechanism
are without merit
44. The United States also attempts to cast the waiver provisions as an efficiency mechanism that
enables the Department to save resources where respondent interested parties choose not to participate
in the Department’s sunset review.
61 According to the United States, “[n]othing in Article 11.3
specifically or the AD Agreement generally require s authorities to engage in such a waste of their
own resources and the resources of private parties.”62
45. Casting the function of the waiver provisions as a vehicle for saving resources is not
persuasive. Purported efforts to save administrative resources cannot be used to diminish a Member’s
substantive rights or to re-define obligations.63
46. The point is that Article 11.3 imposes an obligation to the Member maintaining an anti-
dumping measure to conduct a “rigorous” review and make a determination of both likely dumping
and likely injury in order for it to maintain that meas ure. If the national authorities are not willing to
expend the resources necessary to satisfy their ob ligation to make a WTO-consistent “determination,”
then they must terminate the measure. Also , Article 6.8 and Annex II of the Anti-Dumping
Agreement provide the only mechanis m for the treatment of respondents who do not participate or
who are not cooperative: a decision based on facts ava ilable for such parties. Article 11.3 (as well as
the Anti-Dumping Agreement as a whole) does no t permit an additional, so-called efficiency
mechanism, that statutorily mandates a finding of a likelihood of a continuation or recurrence of
dumping.
47. The United States has applied the waiver provision in 173 of its 297 sunset reviews of anti-
dumping duty orders – and in 78 per cent of the sunset reviews in which the domestic industry
participated.
64 In all of these cases, the Department issued a finding that dumping would likely
continue or recur pursuant to the statutory mandate. 65 In Argentina’s view, this is something other

61 US First Submission, paras. 148-49.
62 Id. at para. 149.
63 See Argentina’s First Oral Statement, paras. 49-51.
64 US Department of Commerce Sunset Reviews (ARG-63 and ARG-64).
65 Id.

than efficiency. The sunset review of antifrictio n bearings from Sweden illustrates the “efficient” use
of the waiver provisions and highlights the direct conflict with Article 11 .3 – where there is no
review, no analysis, and no determination by the De partment. In that case the Department stated,
“given that . . . respondent interested parties have waived their right to participate in this review
before the Department, we determine that dumping is likely to continue if the orders were revoked.”66
48. Finally, in its first submission, the United States does not even address the issue of “deemed
waivers,” where respondents attempted to participate, but the Department rejected their responses and
deemed their inadequate responses to constitute a “w aiver of participation.” The United States did
concede, however, during questioning from the Pa nel at the First Substantive Meeting With the
Parties on 9 December that, pursuant to the waiv er regulation, 19 USC. § 351.218(d)(2(iii), the
Department will apply a deemed waiver for both incomplete substantive responses and for non-
responses. However, according to the US First Submission, a party which submits a response to a
notice of initiation is never cons idered to have “waived” its participation in a sunset review. 67 Sunset
cases included in Exhibit ARG-63, however, contradict the US explanation and cast doubt on the US
response to Argentina’s argument.68
49. The United States also argues that the waiver provisions do not violate Article 6.1, because
US sunset laws and regulations afford interested parties “ample opportunity to present evidence in
writing all evidence which they consider relevant.” 69 According to the United States, the US waiver
provisions only “operate when a respondent intere sted party has chosen not to avail itself of the
Article 6.1 rights that other provisions of the regulations guarantee.”70
50. Under the Department’s sunset regulations, th e Department “will consider the failure by a
respondent interested party to file a complete substantive response . . . as a waiver of participation in a
sunset review before the Department.” 71 Applying this provision, the Department has deemed a
respondent to have waived its participation wh ere the Department considered the respondent’s
response to the notice of initiation to be “inadequ ate” under 19 USC. § 351.218(e)(1)(ii)(A) – both

66 Antifriction Bearings from Sweden, 64 Fed. Reg. 60,282, 60,284 (Dep’t Comm. 1999)(final results
sunset review) (ARG-63, Tab 6).
67 See US First Submission, para. 166, (“[The US waiver provisions] are relevant only when a
respondent interested party has not responded to the notice of initiation of the sunset review by making the
required first submission, the substantive response.”).
68 See, e.g., Cut-to-Length Carbon Steel Plate from Belgium , 65 Fed. Reg. 18,292 (Dep’t Comm.
2000)(final results sunset review)(ARG-63, Tab 82). The Department receiv ed incomplete responses from two
respondents, and therefore considered their responses to be “inadequate” under 19 C.F.R. § 351.218(e)(1)(ii)(A).
See Issues and Decision Memo for the Expedited Sunset Review of the AD Order on Cut-to-Length Carbon Steel
Plate from Belgium at 2-3 (ARG-63, Tab 82). In addition, the domestic interested parties urged the Department
to deem the respondents’ failure to file complete responses as waivers of participation in the review. See id. at
2. In concluding that dumping was likely to continue or recur, the Department stated: “In the instant review,
the Department did not receive an adequate response from any respondent interested party. Pursuant to section
351.218(d)(2)(iii) of the Sunset Regulations, th is constitutes a waiver of participation.” See id. at 5. See also
Seamless Pipe from Argentina, Brazil, Germany, and Italy , 65 Fed. Reg. 66,708 (Dep’t Comm. 2000)(final
results sunset review)(ARG-63, Tab 212). For the sunset review of the order against Italian seamless pipe, the
Department received a complete substantive response from a respondent interested party, but considered the
response to be “inadequate” by virtue of the 50 per cent rule under 19 C.F.R. § 351.218(e)(1)(ii)(A). See Issues
and Decision Memo for the Expedited Sunset Reviews of the AD Orders on Seamless Pipe from Argentina,
Brazil, Germany, and Italy at 3 (ARG-63, Tab 212) . In concluding that dumping was likely to continue or
recur, the Department stated: “In the instant reviews, the Department did not receive adequate response from
any
 respondent interested party for the Argentinean, Brazilian, and Italian cases. Pursuant to section
351.218(d)(2)(iii) of the Sunset Regulations, this constitutes a waiver of participation.” See id. at 5 (emphasis
added).
70 See id. at para. 166.
71 19 C.F.R. § 351.218(d)(2)(iii) (emphasis added).

because the response was incomplete and because the respondent failed to satisfy the 50 per cent
threshold test.
72 Indeed, the Department deemed Siderca’s complete substantive response to
constitute a waiver of participation.73
51. The Department’s regulations regarding the “deemed waiver” thus deny respondent interested
parties the opportunity to present evidence in viola tion of Article 6.1. Although the Department’s
regulations afford respondents the opportunity to submit evidence, these provisions are meaningless in
the context of a deemed waiver where the Departme nt issues a mandatory determination of likely
dumping pursuant to the statute, despite a responde nt’s attempts to participate in the sunset
proceeding.
52. Similarly, the US waiver provisions violate Article 6.2. In response to this argument, the
United States again fails to address the consequences of a deemed waiver. By deeming a respondent
interested party’s inadequate response to constitute a waiver under 19 C.F.R. § 351.218(d)(2)(iii), the
Department denies the respondent “a full opportunity for the defence of [its] interests.” Indeed, a
respondent hardly can be said to have a full oppor tunity to defend its interests where the Department
issues a mandatory determination of likelihood without considering information and argument
submitted by that respondent.
B. 19 USC. § 1675A(C)(1), THE STATEMENT OF ADMINISTRATIVE ACTION , AND SECTION II.A.3
OF THE SUNSET POLICY BULLETIN ESTABLISH AN IRREFUTABLE PRESUMPTION OF LIKELY
DUMPING IN DEPARTMENT OF COMMERCE SUNSET REVIEWS THAT VIOLATES AS SUCH
ARTICLE 11.3
53. In Sunset Review of Steel from Japan , the Appellate Body confirmed that the likelihood
determination required under Article 11.3 could no t be based on a presumption that dumping would
be likely to continue or recur.74
54. In its first submission, Argentina presented three independent claims that demonstrate that the
United States has established and/or employs an irrefutable presumption of likely dumping in
violation of its WTO obligations. 75 F i r s t, the SAA and Sunset Policy Bulletin cannot be separated
from the US statute and, taken together, the statute, SAA, and Sunset Policy Bulletin establish an
irrefutable presumption of likely dumping in vi olation of Article 11.3 of the Anti-Dumping
Agreement as such. Second , the consistent practice of the United States demonstrates that it always
applies an irrefutable presumption of likely dumping in violation of Article 11.3 as such. Third, in the
alternative (i.e., in the event that the Panel were to find that the SAA and the Sunset Policy Bulletin
could not be challenged as “measures,” or that, individually or taken together with the statute, they
were not inconsistent with Article 11.3), Argen tina’s first submission demonstrates that the United
States has not administered its law with respect to the likelihood of dumping determination in an
impartial and reasonable manner as required by Article X:3(a) of the GATT 1994.
55. The implications of not finding a violation pursuant to at least one of these claims would be
significant for the WTO as a rules-based system. If countries can avoid treaty obligations by copying
the text of treaty commitments into domestic legislation, and then publishing “administrative
guidance” that either undermines the substantive oblig ations or results in consistent practice that is
inconsistent with WTO obligations, then WTO obligations would become meaningless.

72 See, e.g., Seamless Pipe from Argentina, Brazil, Germany, and Italy , 65 Fed. Reg. 66,708 (Dep’t
Comm. 2000)(final results sunset review)(ARG-63, Tab 212); Cut-to-Length Carbon Steel Plate from Belgium,
65 Fed. Reg. 18,292 (Dep’t Comm. 2000) (final results sunset review) (ARG-63, Tab 82).
73 See Issues and Decision Memorandum at 5 (ARG-51) (“In the instant reviews, the Department did
not receive an adequate response from respondent interested parties. Pursuant to section 351.218(d)(2)(iii) of
the Sunset Regulations, this constitutes a waiver of participation.”).
74 See Appellate Body Report, Sunset Review of Steel from Japan, paras. 178, 191.
75 See Argentina’s First Submission, Sections VII.B. and VII.E.

1. 19 USC. § 1675a(c)(1), the Statement of Administrative Action, and the Sunset Policy
Bulletin are measures that can be challenged as such
56. In its first submission, Argentina set forth its argument that the statute, the SAA, and the
Sunset Policy Bulletin – taken together – are inconsistent w ith Article 11.3 as such, because they
establish an irrefutable presumption of likely dumping.76
57. The likelihood of dumping standard under US law is “multi-layered” in the sense that the US
Congress has delegated the likelihood determination to the Department, which has, in turn, issued
rules – codified in the Sunset Policy Bulletin – governing the likelihood determination according to
criteria prescribed by Congress in the statute and SAA. Therefore, in discerning the likelihood of
dumping standard under US law, the statute, SAA, and Sunset Policy Bulletin are “inseparable and
should not be read independently from each other when evaluating the overall conformity of the law
with WTO obligations.”77
58. The statutory provision, 19 USC. § 1675a(c)(1), provides the starting point for the
Department’s likelihood determination. Section 1675a(c)(1) instructs that, in determining whether
revocation of an anti-dumping order would be likely to lead to continuation or recurrence of dumping,
the Department “shall consider—(A) the weighted average dumping margins determined in the
investigation and subsequent reviews, and (B) the volume of imports of the subject merchandise for
the period before and the period after the issuance of the anti-dumping duty order . . . .”
59. As with the relevant statutory provision in US – Export Restraints , however, the statute
cannot be read isolation. 78 While the statute prescribes the two factors (i.e., previously calculated
dumping margins and import volumes ) that the Department must consider in making the likelihood
determination, the statute does not articulate how the Department must interpret these in deciding
whether dumping would be likely to continue or recur. In other words, the statutory provisions alone
do not articulate the likelihood of dumping standard under US law.
60. In order to discern the likelihood of dumping standard under US law, the statute cannot be
read independently from the SAA and the Sunset Policy Bulletin. As a matter of US law, the SAA has
a unique status as the authoritative interpretive tool for the statute. 79 The SAA outlines the three
criteria that Congress believes are “highly probative” of likely dumping: (1) continued dumping
margins, (2) the cessation of imports, and/or (3) declining import volumes accompanied by the
continued existence of dumping margins.80
61. The Sunset Policy Bulletin is an administrative instrument that, as with the issuance of
regulations, the Department published in the Federal Register , and was subject to public comment
prior to the initiation of the first US sunset review. The policies concerning sunset reviews set forth in
the Sunset Policy Bulletin “are intended to complement the ap plicable statutory and regulatory
provisions by providing guidance on methodological or analytical issues not explicitly addressed by
the statute and regulations.”81 With respect to the likelihood of dumping determination, Section II.A.3
of the Sunset Policy Bulletin further instructs that the Department “normally will” determine that the

76 See id. at Section VII.B.2.
77 Panel Report, United States – Sections 301-310 of the Trade Act of 1974, WT/DS152/R, adopted
27 January 2000, para. 7.27 (“US – Sections 301-310”).
78 See Panel Report, United States – Measures Treating Exports Restraints as Subsidies, WT/DS194/R,
adopted 23 August 2001, paras. 8.92, 8.100 – 8.101, 8.130 (“US – Export Restraints”).
79 See id. at paras. 8.97-8.98.
80 SAA at 889-890 (ARG-5).
81 Policies Regarding the Conduct of Five-year (“Sunset”) Reviews of Anti-Dumping and
Countervailing Duty Orders, 63 Fed. Reg. 18,871, 18,871 (Dep’t Comm. 1998)(“ Sunset Policy Bulletin ”)
(ARG-35)(emphasis added); see also Appellate Body Report, Sunset Review of Steel from Japan, para. 95.

continuation or recurrence of dumping would be like ly where at least one of the three criteria set forth
in the SAA is satisfied, with no further analysis.
82
62. Thus, in the end, the US likelihood standa rd is expressed in Section II.A.3 of the Sunset
Policy Bulletin. Part of an overall framework with the statute and the SAA, the Sunset Policy Bulletin
sets forth the presumption of likelihood of dumping that no respondent has ever been able to
overcome. Argentina submits that the irrefutabl e presumption of likely dumping prescribed by
Section II.A.3 of the Sunset Policy Bulletin is inconsistent with Article 11.3 as such.
63. In rebuttal, the United States argues that the Sunset Policy Bulletin has “no independent legal
status,” and for that reason cannot be challenged as a WTO-inconsistent measure. 83 In doing so, the
United States cites the Panel’s ruling in Sunset Review of Steel from Japan that the Sunset Policy
Bulletin does not constitute a measure for purposes of a WTO challenge.84
64. The Appellate Body, however, has over ruled the Panel’s finding that the Sunset Policy
Bulletin is not a measure that is challengeab le, as such, with the WTO Agreement. 85 The Appellate
Body held that “measure” for purposes of WTO challenge is cast broadly, and includes administrative
instruments such as the Sunset Policy Bulletin .86 Accordingly, the Panel has the authority to decide
whether Section II.A.3 of the Sunset Policy Bulletin, which is a distillation of 19 USC. § 1675a(c)(1)
and the SAA, is inconsistent with Article 11.3 as such.
2. 19 USC. § 1675a(c)(1), the Statement of Admini strative Action, and Section II.A.3 of the
Sunset Policy Bulletin require decisive reliance by the Department on historical dumping
margins and declines in import volume and thus establish an irrefutable presumption of
likely dumping in Department of Commerce suns et reviews in violation of Article 11.3
as such
65. In Sunset Review of Steel from Japan, the Appellate Body evaluated whether Section II.A.3 of
the Sunset Policy Bulletin is inconsistent with Article 11.3 as such. In addressing this issue, the
Appellate Body stated,
We believe that a firm evidentiary foundation is required in each case for a proper
determination under Article 11.3 of the likelihood of continuation or recurrence of
dumping. Such a determination cannot be based solely on the mechanistic
application of presumptions . We therefore consider that the consistency of Sections
II.A.3 and 4 of the Sunset Policy Bulletin with Article 11.3 of the Anti-Dumping
Agreement hinges upon whether those provisions instruct [the Department] to treat
dumping margins and/or import volumes as determinative or conclusive , on the one
hand, or merely indicative or probative, on the other hand, of the likelihood of future
dumping.87
66. Thus, the Appellate Body determined that, if the Sunset Policy Bulletin is interpreted by the
Department as directing it to consider cont inued dumping margins and declining volumes ( i.e.,
satisfaction of any of the three criteria prescribed by Section II.A.3) as conclusive of likely dumping,
then the Sunset Policy Bulletin would be inconsistent with Article 11.3 as such. The likelihood

82 Sunset Policy Bulletin at 18,872 (ARG-35).
83 US First Submission, para. 195.
84 See id. at para. 196 (citing Panel Report, Sunset Review of Steel from Japan, paras. 7.125-7.126).
85 See Appellate Body Report, Sunset Review of Steel from Japan, paras. 94-100.
86 See id. at paras. 84-88.

determination required by Article 11.3 must be based on “all relevant evidence,” not on “the
mechanistic application of presumptions.”88
67. Ultimately, however, the Appellate Body did not decide whether the Sunset Policy Bulletin is
inconsistent with Article 11.3 as such. The Appe llate Body concluded that, because the Panel had not
made any factual findings as to the “consistent application” of Section II.A.3, it could not fully
discern that provision’s “meaning.”89 Consequently, it could not determine whether Section II.A.3
directs the Department to consider the three criteria to be conclusive of likely dumping.
68. Here, however, Argentina has submitted extensiv e evidence of the Department’s “consistent
application” of Section II.A.3. Thus, under th e guidance provided by the Appellate Body in Sunset
Review of Steel from Japan , the Panel has the evidence before it to discern the meaning of Section
II.A.3 and to make the proper ruling that the three cr iteria are inconsistent with Article 11.3 as such. 90
Argentina’s Exhibits ARG-63 and ARG-6491 demonstrate that the Department follows the instruction
of Section II.A.3 in every sunset review, and every time it finds that at least one of the three criteria is
satisfied, the Department makes an affirmative finding of likely dumping without considering
additional factors. The Department ’s consistent application of Sec tion II.A.3 thus demonstrates its
meaning: Section II.A.3 directs the Department to attach decisive weight to historical dumping
margins and declining import volumes (or the cessation of imports altogether) in every case .
Therefore, because Section II.A.3 of the Sunset Policy Bulletin instructs the Department to treat
satisfaction of any one of the three criteria as conclusive of likely dumping, the measure is
inconsistent with the Article 11.3 obligation to determine on the basis of all relevant evidence whether
termination of the anti-dumping duty would be like ly to lead to continuation or recurrence of
dumping.92
69. The Department’s 10 December 2003 final dete rmination in the sunset review of the anti-
dumping order on stainless steel wire rod from Spain provides a telling illustration of how the
Department mechanistically treats the Section II.A.3 criteria as d ecisive without considering other
relevant evidence. 93 As in all sunset reviews, the Department followed the instruction of Section
II.A.3 and considered only historical dumping marg ins and import volumes. The dumping margin for
the only identified respondent interested party had declined since the imposition of the order, from
4.73 per cent in the original investigation to 0.80 per cent in the only completed administrative
review.94 Meanwhile, the volume of the subject imports declined significantly the year the order was
imposed, but thereafter import volume to the United States resumed to pre-order levels. 95 This
evidence should have required a finding that cont inuation or recurrence of dumping would not be
likely, as even the SAA recognizes that “declining (or no) dumping margins accompanied by steady

88 Id. at paras. 178, 191 (“As we have found in other situations, the use of presumptions may be
inconsistent with an obligation to make a particular determination in each case using positive evidence.
Provisions that create ‘irrebuttable’ presumptions, or ‘predetermine’ a particular result, run the risk of being
found inconsistent with this type of obligation.”).
89 See id. at paras. 184, 190; see also Appellate Body Report, Steel from Germany, paras. 148, 157.
90 Indeed, Argentina submits that the Panel must make factual findings as to the meaning of Section
II.A.3, as evidenced by the Department’s consistent applic ation of the measure, if only to preserve Argentina’s
rights for appeal.
91 Argentina introduces Exhibit ARG-64 in this second submission. ARG-64 consists of Argentina’s
review of the Department’s sunset proceedings conducted since September 2003, and thus supplements ARG-
63.
92 See Appellate Body Report, Sunset Review of Steel from Japan, paras. 178, 191.
93 See Issues and Decision Memorandum for the Expedited Sunset Review of the Anti-Dumping Order
on Stainless Steel Wire Rod from Spain , (10 December 2003)(ARG-64, Tab 4). The final results of this review
were published on December 10, 2003, during the Panel’s First Substantive Meeting with the Parties in the
instant dispute.
94 See id. at 4.
95 See id. at 6.

or increasing imports may indicate that foreign co mpanies do not have to dump to maintain market
share in the United States and that dumping is less likely to continue or recur if the order were
revoked.”
96 Nevertheless, the Department rigidly applie d the Section II.A.3 criteria and concluded,
“We find that revocation of the order on SSWR from Spain is likely to continue or recur if the order
were revoked, because of the existence of dumpi ng margins above de minimis level and the decrease
of import levels following the imposition of the order.”97
70. The United States cannot dispute that, in follo wing Section II.A.3, the Department always
treats satisfaction of any one of the three criteria as conclusive.
71. Further, by requiring the Department to treat sa tisfaction of any one of the three criteria as
conclusive of likely dumping, Section II.A.3 establishes an irrefutable presumption of likely dumping.
Here, again, Argentina’s extensive evidence of th e Department’s consistent application of Section
II.A.3 demonstrates the invariable consequence – and thus the meaning – of that provision. In 100
per cent of the sunset reviews in which the dome stic industry participated, the Department followed
the instructions of Section II.A.3, and in each case, the Department rendered an affirmative likelihood
determination.98 Therefore, because Section II.A.3 requires the Department to apply a mechanistic
presumption of likely dumping, Section II.A.3 is inconsistent with the Article 11.3 obligation to
determine on the basis of all relevant evidence
whether termination of the anti-dumping duty would
be likely to lead to continuation or recurrence of dumping.99
72. The United States takes the position that there is no irrefutable presumption of likely dumping
under US law. 100 First, the United States asserts that permissive language in the SAA (“[f]or
example,” “may provide strong indication,” and “highly probative”) and Section II.A.3 of the Sunset
Policy Bulletin (“normally”) indicates that these provisions do not establish an irrefutable
presumption.101
73. In Sunset Review of Steel from Japan , however, the Appellate Body examined this very
language in evaluating whether Section II.A.3 is inconsistent with Article 11.3 and found that it did
not resolve the issue. 102 Indeed, the Appellate Body found th at other language in Section II.A.3
contradicted the notion that the intent behind use of the word “normally” was permissive. 103
Specifically, the Appellate Body noted that the follo wing statement in Section II.A.3 suggested “by
negative implication, that data relevant to the tw o factors mentioned in Section II.A.3(a)-(c) (namely,
import volumes and historical dumping margins) will be regarded as conclusive in sunset reviews of
final anti-dumping duties (as opposed to reviews of suspended investigations . . . )[:]”
The Department recognizes that, in the context of a sunset review of a suspended
investigation, the data relevant to the cr iteria under paragraphs (a) through (c), above,
[dumping margins and import volumes] may not be conclusive with respect to
likelihood. 104

96 SAA at 889-90 (ARG-5) (emphasis added.).
97 Issues and Decision Memorandum for the Expedited Sunset Review of the Anti-Dumping Order on
Stainless Steel Wire Rod from Spain at 6 (10 December 2003)(ARG-64, Tab 4).
98 See US Department of Commerce Sunset Reviews, ARG-63 (showing that, in the 217 sunset reviews
in which the domestic industry participated as of September 2003, the Department found that dumping would be
likely in each case); ARG-64 (showing that, in the six sunset reviews conducted by the Department since
September 2003, the Department followed Section II.A.3 and found that dumping would be likely in each case).
99 Appellate Body Report, Sunset Review of Steel from Japan, paras. 178, 191.
101 See id. at paras. 176, 178.
102 See Appellate Body Report, Sunset Review of Steel from Japan, paras. 179-181.
103 Id. at para. 179.
104 Id. (citing Sunset Policy Bulletin at 18,872 (ARG-35)).

Therefore, the Appellate Body determined that evidence of the consistent application of
Section II.A.3 was necessary to discern its meaning.105
74. As discussed above, Argentina has produced extensive evidence demonstrating the
Department’s consistent application of Section II.A .3, and thereby, its meaning. The facts of the
Department’s sunset reviews speak for themselves: In 100 per cent of the sunset reviews in which a
domestic interested party participated in the proceeding, the Department determined that dumping was
likely to continue or recur; and in 100 per cent of the sunset reviews for which the Department
determined that dumping was likely to continue or recur, the Department cited the authority of
Section II.A.3 of the Sunset Policy Bulletin .106 The Department thus treats Section II.A.3 as binding
in all sunset reviews.
75. In addition, the United States asserts that the following statement in the Sunset Policy Bulletin
disproves the existence of an irrefutable presumption:
[T]he Department normally will determine th at revocation of an anti-dumping order
or termination of a suspended dumping investigation is not likely to lead to
continuation or recurrence of dumping where dumping was eliminated after issuance
of the order or the suspension agreement, as applicable, and import volumes remained
steady or decreased.
107
76. The United States claims that this passage “completely undermines Argentina’s case and
rather spoils Argentina’s story.” 108 Argentina disagrees. Rather, this passage further supports
Argentina’s compelling story of US WTO violations in sunset reviews. Out of the 223 sunset reviews
in which the domestic industry participated as of December 2003 (the 217 cases in ARG-63 plus the
six cases in ARG-64), the Department c ited this provision only four times. 109 More importantly, in
each of those four cases, the Department fo und “good cause” to consider other factors 110 and found
alternative grounds for its determination that dumping would be likely to continue or recur. 111 So this
passage, which the United States considers its “silver bullet,” is in fact a dead letter that has only been
used against respondents to justify resorting to the “good cause” provision” in order to otherwise find
that dumping would be likely to continue, as reflecte d in the four cases in which neither the waiver
provisions nor the three checklists items were used for the likelihood determination.
77. How are respondents ever going to be able to refute or disprove the presumption of likely
dumping prescribed by US law if the Department will always find likely dumping, even in the one
rare circumstance in which it is supposedly permitted to determine that dumping would not be likely
to continue or recur? Moreover, the Department’s use of the “good cause” provision demonstrates its
true application – as a tool to justify an affirmative likelihood determination in the rare instance where
the Section II.A.3 criteria are not met.

105 See id. at para. 184.
106 See US Department of Commerce Sunset Reviews (ARG-63 and ARG-64).
107 Sunset Policy Bulletin at 18,872 (ARG-35).
108 US First Submission, para. 181.
109 US Department of Commerce Sunset Reviews (ARG-63 and ARG-64).
110 Pursuant to 19 USC. § 1675 a(c)(2) (ARG-1), 19 C.F.R. § 351.218(e)(2)(iii) (ARG-3), and
Section II.C of the Sunset Policy Bulletin (ARG-35).
111 See Sugar and Syrups from Canada , 64 Fed. Reg. 48,362, 48,363-64 (Dep’t Comm. 1999)(final
results sunset reviews)(ARG-40); Issues and Decision Memorandum for the Sunset Review of Gray Portland
Cement and Cement Clinker from Venezuela (Dep’t Comm., 18 Feb. 2000)(pre lim. results) at 3-5 (ARG-47);
Issues and Decision Memorandum for the Sunset Review of Uranium from Russia (Dep’t Comm.,
27 June 2000)(final results) at 15-17 (ARG-48); Issues and Decision Memorandum for the Sunset Review of
Uranium from Uzbekistan (Dep’t Comm., 27 June 2000)(final results) at 9-11 (ARG-49).

78. Of these four cases, the full sunset review of the anti-dumping order on sugar and syrups from
Canada is particularly illustrative of the great le ngths the Department will go in order to render a
determination of likely dumping, even where the evidence clearly commands a negative
determination. In that case, the Department app lied the Section II.A.3 cr iteria and preliminarily
determined that dumping was not likely to continue or recur, finding that “the continued absence of a
dumping margin for [the foreign respondent] and the continued existence of imports from [the
respondent] in substantial quantities demonstrate[d] that [the respondent was] capable of selling the
subject merchandise in the United States without dumping.”
112 The Department, however, reversed
its preliminary results and issued an affirmative likelihood determination in its final results. The
Department based its final determination on an “abb reviated cost test with the limited data on the
record.”113 The Department acknowledged that it was not its normal practice to examine costs and
pricing during a sunset review, but it nevertheless found that the information on record amounted to
“good cause” sufficient to “warrant consideration of such [other] factors.”114
79. The Department first compared the foreign resp ondent’s cost of production with sales prices
in the Canadian home market. The Department did not, however, compare costs and sales prices for
the same year; rather, it “compared a weighted-average home market price, based on 1997 price data
supplied by [the respondent], with a COP based on 1998 costs derived from [the respondent’s]
data.”115 Based on this comparison, the Department co ncluded that the respondent had sold sugar in
the Canadian home market at below its cost of pr oduction and that it thus “made below cost sales
within an extended period of time in substantial qu antities at prices which did not permit recovery of
all costs within a reasonable period of time.” 116 Because the respondent’s home market sales failed
the Department’s cost test, the Department determ ined that it would not be appropriate to compare
home market sales prices to US export prices to assess dumping. Consequently, the Department
compared the respondent’s constructed value with its verified average US export selling price. Based
on this comparison, the Department “conclude[d] that at least some of [the respondent’s] sales to the
United States [were] at prices below CV.” 117 The Department concluded that this information
provided a sufficient basis for determining that dump ing was likely to continue or recur if the order
were revoked, despite the non-existence of dumping margins and a significant volume of imports.118
80. Based on all of the foregoing, Argentina submits that Section II.A.3 of the Sunset Policy
Bulletin is inconsistent with the Anti-Dumping Agreement as such because it (1) instructs the
Department to treat historical dumping margins and import volumes as decisive and conclusive of
likely dumping, and (2) establishes a presumption of likely dumping that no respondent has been able
to overcome.
81. Argentina respectfully urges the Panel to analyze Argentina’s claim. The Appellate Body’s
report in Sunset Review of Steel from Japan shows the importance of the Panel deciding the issues that
are properly placed before the Panel. In that case , despite the fact that the Government of Japan had
presented evidence that the Sunset Policy Bulletin violated Article 11.3, the Panel stopped short of
ruling on the claim because it erroneously considered that the Sunset Policy Bulletin could not be
challenged. Because the Panel stopped short of a substantive analysis, the Appellate Body could not
“complete the analysis” even though it recognized that the claim could have me rit and that Japan had
presented evidence. Argentina respectfully asks that the Panel not repeat this here, and that it

112 Sugar and Syrups from Canada , 64 Fed. Reg. 20,253, 20,257 (Dep’t Comm. 1999)(prelim. results
sunset review)(ARG-63, Tab 261).
113 Sugar and Syrups from Canada , 64 Fed. Reg. 48,362, 48,363 (Dep’t Comm. 1999)(final results
sunset review)(ARG-63, Tab 261).
114 Id.
115 Id. at 48,364 (emphasis added).
116 Id.
117 Id.
118 See id.

consider the claims put before it by Argentina, and the supporting evidence of Exhibits ARG-63 and
ARG-64.
3. Argentina established a prima facie case as set forth in AR G-63 and ARG-64 and the
United States has not rebutted the existence of the irrefutable presumption
82. Through Exhibits ARG-63 and ARG-64, Argentin a has demonstrated that the presumption of
likely dumping established by the Sunset Policy Bulletin has never been overcome. The facts are
unequivocal: in 100 per cent of the sunset reviews in which the domestic industry participated
(223/223), the Department has followed the directive of Section II.A.3, and in every case the
Department rendered an affirmative determination of likely dumping. Argentina has thus satisfied its
burden of establishing a prima facie case demonstrating the irrefutabl e presumption employed by the
Department in sunset reviews.
83. The United States attempts to diminish the clear importance of the data by contending that
there were only 35 cases in which the lik elihood of dumping issue was “contested.” 119 The United
States again fails to appreciate the nature of th e obligation to determine the likelihood of dumping
under Article 11.3. Lack of respondent party particip ation does not release the United States from its
obligation under Article 11.3 to conduct a review a nd to make a determination that termination of the
duty would be likely to lead to continuation or recurrence of injury. Wh ile respondent interested
parties can be a “primary source of information” in anti-dumping proceedings, the United States still
has “a duty to seek out relevant information” 120 and to ensure that its likelihood of dumping
determination is supported by a “sufficient factual basis.” 121 Otherwise, it cannot invoke the
exception of Article 11.3 (continuation of the measure).
84. In any event, even using the US figures, 35 out of 35 still proves Argentina’s claim. The
United States simply cannot point to a single suns et review in which the presumption that dumping
would likely continue was overcome. Therefore, the United States has failed to rebut Argentina’s
prima facie case.
85. Further, ARG-63 and ARG-64 demonstrate that the Department always treats the satisfaction
of any one of the three criteria prescribed by Section II.A.3 of the Sunset Policy Bulletin as conclusive
of likely dumping. This evidence is indisputable.
4. The Department’s consistent practice in sunset reviews both demonstrates the
irrefutable presumption of likely dumping in US law and itself violates as such
Article 11.3 of the Anti-Dumping Agreement
86. Independent from its challenge of Section II.A.3 of the Sunset Policy Bulletin , Argentina
challenges the Department’s consistent practice as such.
87. After the Appellate Body’s decision in Sunset Review of Steel from Japan , there can be no
doubt that agency practice is challengeable as such in WTO dispute settlement proceedings. In that
case, the Appellate Body evaluated whether “the type of instrument itself – be it a law, regulation,
procedure, practice, or something else – govern[s] whether it may be subject to WTO dispute

119 See US First Submission, para. 185. In any event, there were actually 43 cases in which the
likelihood of dumping determination was – using the US term – “contested.” Argentina’s Exhibit ARG-63
shows that the response from foreign interested parties was deemed adequate in 28 cases and inadequate (based
on a foreign party’s attempt to participate) in 17 cases. Thus, foreign interested parties attempted to participate
in 45 Department sunset reviews. In 2 of these cases, however, the domestic industry withdrew from the
proceeding. Thus, the foreign and domestic parties “contested” the likelihood determination in 43 sunset
reviews.
120 Appellate Body Report, Sunset Review of Steel from Japan, para. 199.
121 Panel Report, Sunset Review of Steel from Japan, paras. 7.177, 7.279.

settlement[.]”
122 After reviewing the relevant WTO jurisprudence and agreement provisions, 123 the
Appellate Body concluded “that there is no basis, either in the practice of the GATT and the WTO
generally or in the provisions of the Anti-Dumping Agreement, for finding that only certain types of
measure can, as such, be cha llenged in dispute settlement proc eedings under the Anti-Dumping
Agreement.”124 The Appellate Body’s reasoning thus requires the conclusion that agency practice
may be challenged as such.
88. As set forth above, Argentina submits that the consistent practice of the United States
demonstrates that it always treats satisfaction of at least one of the three criteria ((1) continued
dumping margins; (2) cessation of imports; and (3) declining volumes) as conclusive of likely
dumping, and thus applies an irrefutable presumption of likely dumping in violation of Article 11.3. 125
There are no exceptions; the Department applies this likelihood standard in every sunset review in
which the domestic industry participates.
89. Citing several panel decisions, the United Stat es argues that, because the Department may
depart from its practice as long as it explains its reasons for doing so, the Department’s consistent
practice of employing the US likelihood standard in sunset reviews may not be challenged as such. 126
In light of the Appellate Body’s decision in Sunset Review of Steel from Japan , however, it is clear
that US agency practice can be challenged as such in WTO disputes.127
90. The United States further argues that, even if the Department’s practice could be challenged
as such, it could not be considered WTO-inconsistent, because the Department’s practice neither
mandates action that is WTO-inconsistent, nor precludes action that is WTO-consistent. 128 According
to the United States, the Department’s likelihood of dumping practice is not mandatory, because the
Department may depart from it as long as it explai ns its reasons for doing so. In this regard, the
United States asserts that, “[i]n accordance with the normal WTO rules on the allocation of the burden
of proof, it is up to the complaining party to demonstrate that any challenged measure mandates
WTO-inconsistent action or precludes WTO-consistent action.”129
91. Argentina submits that it has satisfied its burden. Again, Argentina has demonstrated that the
Department employs the US likelihood standard in every sunset review in which the domestic
industry participates. 130 Thus, Argentina has made its prima facie case establishing that the US
likelihood standard is mandatory under the Department ’s practice. Accordingly, the burden shifts to
the United States to show that the Department can depart from its likelihood practice. Because the
United States cannot point to a single sunset review in which the Department has done so, the United
States has failed to rebut Argentina’s claim.

122 Appellate Body Report, Sunset Review of Steel from Japan , para. 78 (emphasis added). See also
Appellate Body Report, United States – Countervailing Measures Concerning Certain Products from the
European Communities (“US – CVDs on EC Products ”) WT/DS212/AB/R, adopted 8 January 2003, paras. 50,
151, 162; United States – CVDs on EC Products: Status Report by the United States , WT/DS212/13
(28 Oct. 2003)(stating that the United States/Department changed a methodology to comply with its WTO
obligations).
123 See Appellate Body Report, Sunset Review of Steel from Japan, paras. 85-87.
124 Id. at para. 88.
125 See US Department of Commerce Sunset Reviews (ARG-63 and ARG-64).
126 See US First Submission, para. 198 (citing Panel Report, Sunset Review of Steel from Japan ,
para. 7.131; Panel Report, United States – Anti-Dumping and Countervailing Measures on Steel Plate from
India, WT/DS260/R, adopted 29 July 2002, para. 7.22 (“India Steel Plate”)).
127 See Appellate Body Report, Sunset Review of Steel from Japan, paras. 85-88.
129 Id.
130 See US Department of Commerce Sunset Reviews (ARG-63 and ARG-64). See also Appellate
Body Report, Steel from Germany, para. 148.

5. Assuming arguendo that US law and practice establishing the irrefutable presumption
are not inconsistent as such with Article 11.3, then the United States has not
administered its law with respect to the Article 11.3 Likelihood of Dumping
Determination in an impartial and reasonable manner in violation of Article X:3(a) of
the GATT 1994
92. The GATT Article X:3(a) argument raised in Ar gentina’s First Submission is an alternative
claim.131 This claim applies only if the Panel finds that US law is consistent with Article 11.3, or that
the offending provisions are not “measures” that ca n violate US WTO obligations. In this event, the
Department’s sunset practice demonstrates that th e United States has not administered its law with
respect to the likelihood of dumping determination in an impartial and reasonable manner as required
by Article X:3(a) of the GATT 1994.
93. Through its comprehensive analysis of the De partment’s sunset reviews, Argentina has
established a clear and undeniable pattern of biased and unreasonable decision making by the
Department in its administration of the laws, regulations, decisions, and rulings pertaining to sunset
review.
132 It is simply not credible to believe that a review based on positive evidence could lead to
an affirmative finding of likely dumping in each of the 223 cases in which the US industry requests
continuation of the anti-dumping measure. A record of 223 wins and 0 losses (or even 35 wins and 0
losses to use the US figures of so-called “contested” cases) for the US industry demonstrates a lack of
impartiality, and the unreasonable administration of national laws, regulations, decisions, and rulings.
94. On this issue the United States is unable to even muster a true rebuttal. The United States
first argues that Argentina failed to demonstrate that the Department violated the Article X:3(a)
requirement to administer the sunset review laws, regulations, decisions, and rulings in a “uniform”
manner.133 In fact, Argentina never challenged the unif ormity of the Department’s administration of
sunset reviews in the first place. To the contrary , Argentina submits that the Department’s uniform
administration of sunset reviews demonstrates a clear pattern of biased and unreasonable decision
making, because the only determinat ive factor in the Department’s sunset review is US industry
participation.
95. Second, the United States again attempts to deconstruct the clear import of Argentina’s
Exhibit ARG-63 by arguing that only the so-called “contested” cases are relevant for the purposes of
Article X:3(a).
134 Under Article 11.3, however, the lack of respondents’ participation does not relieve
the authority from the obligation to make a determination based on positive evidence that dumping
would likely continue or recur in order to invoke the exception and continue the anti-dumping
measure. In any event, even using the erroneous US figures, 35 out of 35 still proves Argentina’s
claim. At a minimum, Argentina has satisfied its burden of establishing a prima facie violation of
Article X:3(a), and the United States has failed to rebut that claim.

131 See Argentina’s First Submission, Sec. VII.E.
132 See US Department of Commerce Sunset Reviews (ARG-63 and ARG-64).
134 See id. at para. 275. On this point, Argentina again notes that there were actually 43 cases in which
the likelihood of dumping determination was – using the US term – “contested.”

C. T
HE DEPARTMENT’S SUNSET REVIEW OF OCTG FROM ARGENTINA WAS INCONSISTENT WITH
THE ANTI-DUMPING AGREEMENT
1. The Department’s determinations indicate that it applied the Waiver Provisions to
Siderca; Application of the Waiver Provis ions in the Sunset Review of OCTG from
Argentina was inconsistent with Articles 11.3 and 6 of the Anti-Dumping Agreement
96. The Department determined that because Side rca’s response was “inadequate” the company
had “waived” its right to participate in the suns et review. This is clear from the Department’s Issues
and Decision Memorandum : “In the instant reviews, the Depa rtment did not receive an adequate
response from respondent interested parties. Pursuant to section 351.218(d)(2)(iii) of the Sunset
Regulations, this constitutes a waiver of participation.”135
97. As explained above, the US waiver provisions violate Article 11.3 because they mandate a
finding of likely dumping. Article 11.3’s requirements to conduct a “review” (which necessarily
entails a “rigorous examination” of the facts) and to make a “determination” precludes the authority
from mandating statutorily an affirmative finding of likely dumping. If the WTO Member wishes to
invoke the exception and continue the measure, it simply does not have the choice of doing nothing,
or of passively assuming that dumping and injury would likely continue or recur.
136 The authority
must take action and ground its determination on a “sufficient factual basis” to allow it to “draw
reasoned and adequate conclusions concerning the likelihood” of continuation or recurrence. 137 The
authority must make a “fresh determination” th at is forward-looking and “based on credible
evidence.”138
98. The application of the waiver provisions in the Argentine case violated Article 6.1 because it
prevented the only known Argentine exporter, Si derca, from presenting evidence for meaningful
consideration. Siderca had notified the Department of its desire to participate in the sunset review and
its willingness to cooperate fully by filing a complete substantive response to the Department’s notice
of initiation. Nevertheless, the De partment deemed Siderca to have waived its participation and thus
issued a determination that dumping was likely pursuant to the statutory mandate of 19 USC. §
1675(c)(4)(B). Accordingly, application of th e waiver provisions resulted in a mandatory
determination of likely dumping without any analysis in violation of Article 6.1.
(a) The US Position in Its First Submission Is Inconsistent with Both the Department’s Sunset
Determination and the Factual Record Before the Department
99. The United States argues that the Department did not deem Siderca to have waived its
participation in the sunset re view of OCTG from Argentina.
139 Buried in footnote 216 of its first
submission, however, the United States does concede ambiguity, stating that “[a]lthough based on this
language it may appear that Commerce deemed all re spondent interested parties to have waived their
participation in the OCTG sunset review . . . .” The United States says instead that there were other
Argentine exporters who did not respond at all to th e notice of initiation. Also, at the Panel’s First
Substantive Meeting With the Parties, the United Stat es conceded that with respect to this point the
Department’s sunset determination may have been “inartfully drafted.”
100. Thus, under the theory expressed in the US Fi rst Submission, the expo rters considered to
account for all exports of Argentine OCTG to the United States waived their participation by failing

135 Issues and Decision Memorandum at 5 (ARG-51).
136 See Appellate Body Report, Sunset Review of Steel from Japan, paras. 113-115; Panel Report,
Sunset Review of Steel from Japan, paras. 7.177, 7.271.
137 See Panel Report, Sunset Review of Steel from Japan, para. 7.177.
138 Appellate Body Report, Steel from Germany, para. 88.
139 See US First Submission, paras. 211- 213.

to respond to the notice of initiation, and the Depa rtment therefore had no choice but to follow the
statutory mandate to make an affirmative finding of likely dumping in this case. If this is true, how
can the United States now contend that the waiver provi sion did not affect Siderca, or that it did not
diminish Argentina’s rights under Article 11.3?
101. Initially, of course, there is the unambiguous language of the Department. The Department
determined that Siderca’s response was inadequate, 140 and that the Department did not receive “an
adequate response from respondent interested pa rties” and that “this constitutes a waiver of
participation.”141 Based on the statements in the Department’s determinations there can be no serious
dispute that the Department: (1) determined Sider ca’s response to be inadequate; and (2) applied the
waiver provisions to Argentina.
102. With respect to the facts, there was no reasonable basis for the Department to have considered
that there were other Argentine producers/exporters who failed to respond to the notice of initiation
and who were thus the true subjects of the app lication of the waiver provisions. Nor has the
Department ever explained these decisions in any of the documents related to its sunset review
determination.
103. First, Siderca was the only Argentine produ cer/exporter investigated in the original
investigation, and it was the only producer/exporter named in the subsequent reviews requested by the
US industry. During the five-year period after imposition of the order, the domestic industry
requested four administrative reviews, naming Siderca as the only exporter each time. 142 In at least
one case, the representatives of the US industry iden tified Siderca as “the only know[n] producer” of
the subject merchandise. 143 The Department initiated an admi nistrative review in each year, but
ultimately rescinded the reviews because there were no shipments to evaluate. 144 In all of these
instances, however, Siderca’s “no shipment certif ications” led to additional questions from the
Department and additional comments from the US industry. In all cases, Siderca explained that it was
shipping to the United States, but that all of its shipments were either non-subject merchandise, or
were not entering the United States for consumption in the United States. In all cases, the Department
ultimately agreed with Siderca’s certification that it made no shipments for consumption in the United
States of subject merchandise, and therefore rescinded the annual reviews.
104. Further, the record developed in the Department ’s sunset review indicated that Siderca was
the only producer/exporter of the subject merchandise. In its substantive response, Siderca indicated
that it was the only producer of seamless OCTG, and, to its knowledge, it was the only
producer/exporter of Argentine OCTG. 145 The Department acknowledged these statements (while

140 See Issues and Decision Memorandum at 3 (“the Department determined Siderca’s substantive
response to be inadequate”) and 7 (“ the Department determined to conduct an expedited review because of its
finding that Siderca did not provide adequate substantive responses”) (ARG-51).
141 Id. at 5.
142 Initiation of Anti-Dumping and Countervailing Duty Administrative Reviews, 61 Fed. Reg. 48,882,
48,883 (Dep’t Comm. 1996) (ARG-28); Initiation of Anti-Dumping and Countervailing Duty Reviews, 62 Fed.
Reg. 50,292, 50,292 (Dep’t Comm. 1997) (ARG-32); Initiation of Anti-Dumping and Countervailing Duty
Reviews, 63 Fed. Reg. 51,893, 51,894 (Dep’t Comm. 1998) (ARG-37); Initiation of Anti-Dumping and
Countervailing Duty Reviews, 64 Fed. Reg. 53,318, 53,318 (Dep’t Comm. 1999) (ARG-41).
143 Letter from Schagrin Associates to the Honourable William M. Daley of 29 Aug. 1997 (“Oil
Country Tubular Goods from Argentina: Request for Administrative Review”) at 2 (ARG-58).
144 Oil Country Tubular Goods from Argentina, 62 Fed. Reg. 18,747, 18,748 (Dep’t Comm. 1997)
(rescinded admin. review) (ARG-29); Oil Country Tubular Goods from Argentina, 63 Fed. Reg. 49,089, 49,090
(Dep’t Comm 1998) (rescinded admin. review) (ARG-36); Oil Country Tubular Goods from Argentina, 64 Fed.
Reg. 4,069, 4,070 (Dep’t Comm. 1999) (rescinded admin. review) (ARG-37); Oil Country Tubular Goods from
Argentina, 65 Fed. Reg. 8,948, 8,949 (Dep’t Comm. 2000) (rescinded admin. review) (ARG-43).
145 Substantive Response of Siderca to the Department’s Initiation of Sunset Review of the AD Order
on OCTG from Argentina (2 August 2000), para. 6 (“Siderca’s Substantive Response”) (ARG-57).

misstating them slightly) by stating that “Siderca asserts that it is the only producer of OCTG in
Argentina, and to its knowledge, there is no other producer of OCTG in Argentina.”
146 Thus, at the
very least, the record developed by the Department casts doubt on the statistics relied upon by the
Department for the adequacy determination. It is not clear why the Department chose to believe the
statistics, instead of its understanding of Siderca’s position.
105. Finally, the Department had reason to doubt its data. On previous occasions, the Department
concluded that the official statistics contained errors, in one case incorrectly classifying non-
consumption entries as consumption entries, 147 and in another case misclassifying mechanical pipe as
OCTG.148
106. From this record, it is not reasonable for the Department to have assumed that there were
other Argentine producers/exporter s who should have responded to the initiation notice, and whose
failure would have such consequences for Argentina’s rights under Article 11.3. This unfounded
assumption had dire consequences for Argentina as it resulted in the deemed waiver of Siderca and a
statutorily mandated finding of likely dumping.
(b) Even Accepting the US Explanation in Its First Submission, the Effect of the Application of
the Waiver Provisions in the Sunset Review of OCTG from Argentina Is the Same Under
Either Scenario
107. In the sunset review of OCTG from Argentina, according to the US First Submission, it was
the producers accounting for 100 per cent of the Arge ntine exports who were deemed to have waived
their participation.149 Therefore the statute mandated a determination that termination would be likely
to lead to a continuation of dumping for the Argentine producers representing all exports to the United
States.
108. Thus, whether waiver was applied to all “respond ent interested parties” (as indicated in the
Department’s Issues and Decision Memorandum) or whether waiver was applied only to the non-
responding respondents, the result is equivalent to waiver on an order-wide level because the
Department assumed that companies accounting for 100 per cent of the exports had waived
participation. In this case there can be no doubt that the waiver provisions precluded the Department
from conducting a “review” and making the “deter mination” required by Article 11.3. Siderca was
viewed as irrelevant to the sunset determination, despite the fact that the record established that it was,
at that time, the only known producer and exporter from Argentina. Under the statutory and
regulatory rules applied in this case, Siderca, w ith no exports, had no chance to influence the
Department because the Department considered th at the exporters accounting for 100 per cent of the
exports “waived” their participation. As the Appellate Body stated, “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.”150

146 Determination to Expedite at 2 (ARG-50)
147 Oil Country Tubular Goods from Argentina, 63 Fed. Reg. 49,089, 49,090 (Dep’t Comm. 1998)
(rescinded admin. review) (ARG-36).
148 Oil Country Tubular Goods from Argentina, 65 Fed. Reg. 8,948, 8,949 (Dep’t Comm. 2000)
(rescinded admin. review) (ARG-43).
149 US First Submission, para. 216.
150 Appellate Body Report, Sunset Review of Steel from Japan, para. 111.

2. Assuming arguendo that waiver was only applied to the non-responding respondents,
the Department’s conduct of an expedited review on the basis of the facts available was
inconsistent with Articles 11.3, 6.8, and Annex II of the Anti-Dumping Agreement
(a) Under This Scenario, Argentina Was Limited To an Expedited Review and a Decision Based
on Facts Available
109. In the sunset review of OCTG from Argentin a, the Department cites both the “waiver”
provision, 19 USC. § 1675(c)(4)(B) and the “facts available” provision, 19 USC. § 1675(c)(3)(B), and
therefore purports to rely on both provisions. 151 However, there is no basis under US law for the
simultaneous application of these provisions to a single respondent. Indeed, these provisions are
mutually exclusive with respect to a single respondent.152
110. The Department stated unambiguously that Siderca’s response was “inadequate” and that “the
Department did not receive an adequate response fr om respondent interested parties” and that “this
constitutes a waiver of participation.”153 There is also reference in the Department’s determinations
regarding the decision to conduct an expedited revi ew, with citations to the Department’s regulation
related to determinations based on facts available. 154 Notwithstanding these statements, the United
States asserts in its first submission that the De partment did not apply facts available to Siderca. 155
Again, the answer that the United States provides in its first submission relates to the so-called “non-
responding respondent interested parties” that is , Argentine companies other than Siderca who never
responded to the invitation to file a substantive response.156
111. Here, the United States enters into a series of contradictions. In the Department’s
determination to conduct an expedited review, it noted that “[d]uring the five-year period from 1995
to 1999, the combined-average annual percentage of Siderca’s exports of OCTG to the United States
with respect to the total of exports of the subject merchandise to the United States was significantly
below 50 per cent.” 157 Based on this finding, the Department determined Siderca’s substantive
response to be “inadequate” under 19 C.F.R. § 35 1.218(e)(1)(ii)(A) and thus conducted an expedited
review pursuant to 19 C.F.R. § 351.218(e)(1)(ii)(C).158
112. According to the Department’s sunset regulati ons, if respondent interested parties have
provided an inadequate response, the Department will normally conduct an expedited review and
issue its final results “based on the facts avai lable[.]” (19 C.F.R. § 351.218(e)(1)(ii)(C); see also 19
USC. § 1675(c)(3)(B).) Section 351.208(f)(2) provid es that the “facts available” consist of dumping
margins from prior determinations and information contained in parties’ substantive responses.
Assuming arguendo that the waiver provisions were not the basis of the Department’s sunset
determination,159 then the Department’s citation to 19 USC. § 351.218(e)(1)(ii)(C) in the

151 See, e.g., Issues and Decisions Memorandum at 4 (ARG-51) (citing section 1675(c)(4)(B)), and
Determination to Expedite at 2 (ARG-50) (citing section 1675(c)(3)(B)).
152 See Argentina’s First Submission, paras. 100-101.
153 Issues and Decision Memorandum at 5 (ARG-51).
154 Determination to Expedite at 2 (ARG-50); Issues and Decision Memorandum at 3 (ARG-51).
155 See US First Submission, paras. 214, 221, 234-36.
156 See id. at para. 214.
157 Determination to Expedite at 2 (ARG-50).
158Issues and Decision Memorandum at 3 (ARG-51); Adequacy Determination at 2 (ARG-50)(“we
recommend that you determine Siderca’s response to be inadequate”).
159 Despite the statement in the Department’s Issues and Decision Memorandum (ARG-51) at 4-5 that
“respondent interested parties” waived their participation in the sunset review, the United States contends that it
did not apply the waiver provisions to Siderca. See US First Submission, para. 211. The United States is also
ambivalent as to whether it applied waiver to the non-responding respondents. In its First Submission, the
United States indicates that the Department deemed the non-responding respondents to have waived their
participation in the sunset review ( see paras. 216, 155, and n.216) and, elsewhere, that it did not apply the

Department’s Determination to Expedite and in its Issues and Decisions Memorandum demonstrates
that the Department’s sunset determination was based, at best, on “facts available.”
160
(b) The Department Violated Articles 6.1 and 6.2 of the Anti-Dumping Agreement
113. The conduct of the expedited review and the application of the waiver provisions in the sunset
review of OCTG from Argentina violated Article 6. 1 because they effectively prevented Siderca from
presenting evidence for meaningful consideration by the Department regarding the likelihood of
continuation or recurrence of dumping in order to inform its determination under Article 11.3. The
Department acknowledged that Siderca both filed a complete substantive response to the notice to
initiate a sunset review, and notifie d its willingness to participate fully in the instant sunset review. 161
Nevertheless, the Department’s application of the wa iver provisions to the so-called non-responding
respondents dictated the result for Argentina as a whole. Thus, Siderca did not have an “ample
opportunity to present . . . evidence which [it] c onsider[ed] relevant” when the Department deemed
the respondents accounting for 100 per cent of th e imports to have waived participation, which
determination resulted in an automatic likelihood determination in violation of Article 6.1.
114. The conduct of the expedited review and the application of the waiver provisions to Siderca in
the sunset review of OCTG from Argentina also violated Article 6.2, because Siderca did not have a
full opportunity to defend its interests. Siderca co uld not defend its interests because the result was
effectively foreclosed, given that the Departme nt deemed the non-responding respondents accounting
for 100 per cent of the imports to have waived participation, which determination resulted in an
automatic likelihood determination.
115. The United States argues that, by limiting its su bstantive response to a “mere” four pages in
length and not taking advantage of other opportunities to submit comments, Siderca failed to fully
avail itself of the opportunities granted by the suns et regulations for the presentation of evidence. 162
In addition to the substantive response to the notice of initiation, the United States explains, Siderca
could have submitted comments on the Departme nt’s adequacy determination (19 C.F.R. §
351.309(e)) and rebuttal comments to any other party’s substantive response (19 C.F.R. §
351.218(d)(4)). Therefore, the Unite d States concludes, the Department’s sunset review of Argentine
OCTG was not inconsistent with Articles 6.1 and 6.2.
116. The US argument fails for several reasons. First, contrary to the US assertion, Siderca did not
fail to take the opportunity to present evidence. As the United States repeatedly recognizes in its First
Submission, Siderca’s response to the notice of in itiation was a “complete substantive response” that
met all of the Department’s regulatory requirements.
163 Nevertheless, despite its submission of a
complete substantive response, the Department deem ed Siderca’s response to be inadequate. This
determination resulted in Siderca being deemed to ha ve waived its participatio n in the sunset review,
which in turn resulted in a mandatory likelihood determination. Consequently, with the determination
that Siderca’s response was inadequate, the case effectively ended, with the outcome preordained.
117. At the same time, under Article 6.1 and Anne x II, it was the Department’s obligation to
“specify in detail the information required” from Si derca in order for the Department to undertake a
review and make the required determination under Article 11.3. Siderca provided information that the
United States characterizes as a “complete substantive response,” and Siderca also offered to

waiver provisions to the non-responding respondents because the Department applied facts available to them
(see para. 214).
160 See Determination to Expedite at 2 (ARG-50) and Issues and Deci sion Memorandum at 3 (ARG-
51).
161 See Determination to Expedite at 1-2 (ARG-50).
162 See US First Submission, paras. 228-29, 237.
163 See id. at paras. 211, 213, 214, and 216.

cooperate fully in the review. The US statements now that the information was insufficient because it
was limited to a “mere” four pages contradicts its statements that Siderca’s submission was a
complete substantive response. The only way to reconcile the contradicti on in the Department’s
statements is for it to admit that, despite being a “complete substantive response,” Siderca’s response
was either irrelevant to the Department’s determin ation, or Siderca’s response did not include the
information that the Department wa s hoping to receive. Neither explanation, however, is acceptable
under Articles 11.3, 6.1, 6.8, and Annex II.
118. Second, regarding the Department’s adequacy determination, the regulation provides that
submitted “comments may not include any new factual information or evidence (such as
supplementation of a substantive response to the notice of initiation) and are limited to five pages.” 164
Thus, the regulation precluded Siderca from subm itting any new evidence with respect to the
Department’s determination that Siderca’s response was inadequate.
119. Finally, by the time that the Argentine sunset review began, the Department had completed
approximately 160 sunset reviews of anti-dumping measures, and it was well-known that the
Department had designed and implemented a syst em which avoided any type of substantive
determination. Hence, respondent participation was widely considered to be futile, and would in no
way change the substantive outcome of the proceeding.
120. Commentators writing at the time of the Argentine sunset determination described the
institutional bias of the Department in the conduct of its sunset reviews:
The relative treatment by Commerce of do mestic and respondent interested parties,
although in part consistent with the Statute and the legislative history, may provide
some basis for the criticism often heard among outside observers that Commerce’s
procedures are sometimes biased in favour of the domestic industry. It is not clear
that respondent interested parties gain very much by participation in Commerce
reviews and avoiding automatic judgments. The statute, the legislative history, and
Commerce rules make it highly likely that Commerce will find a likelihood of
dumping and will simply rely on the results of the original investigation. Commerce
will probably arrive at the same conclusions regardless of foreign participation. In
light of this and the high information burden on respondent interested parties, there is
a clear incentive for respondent interested parties to forego participation at
Commerce. In fact, most respondent interest ed parties have simply not responded in
the majority of reviews initiated to date. As can be seen in Table 1, only nine
responses from respondent interested parties have been received to date.
165
121. The author of this article also interv iewed several practitioners. Based on these
conversations, he noted that: “[o]ne practitioner stated there is a very clear perception among
respondents of an institutional bias at Commerce against respondents, and therefore there is a great
reluctance to expend resources toward presenting their [sunset] case at Commerce.”166
122. The analysis done by Argentina for the purposes of this panel proceeding confirms the
widely-held perceptions at the time: in every sunset review in which the domestic industry
participated and in which the waiver provisions were not applied, the Department limited its

164 19 C.F.R. § 351.309(e) (emphasis added).
165 See Peter A. Dohlman, Determinations of Adequacy in Sunset Reviews of Anti-Dumping Orders in
the United States , 14 AM. U. INT’L L. REV. 1281, 1331-32 (footnotes omitted) (1998-1999) (ARG-65) (at the
time of writing this article, the author (who stated that the views expressed in the article were his personal views
and not representative of the Commission) served as the Senior Economist to Commissioner Carol T. Crawford
of the International Trade Commission).
166 See id. at 1300 n.64 (ARG-65).

“analysis” to the SAA and Sunset Policy Bulletin criteria and found a likelihood of dumping.
167 By
relying exclusively on the checklist criteria from the SAA and Sunset Policy Bulletin, the Department
denies foreign interested parties an ample opportu nity to present evidence and fully defend their
interests, contrary to the oblig ations established by Articles 6. 1, 6.2, and 11.3. Despite US
protestations to the contrary, the United States is well aware of the fact that even if Siderca availed
itself of other opportunities to submit comments, the outcome would have been the same. The United
States cannot credibly argue that a more active intervention by Siderca would suddenly have tilted the
record from 223/0 to 222/1.
(c) The Department Violated Article 6.8, 6.9, and Annex II Because the “Facts Available”
Analysis Was Necessarily Limited To the Dumpin g Margin in the Original Investigation and
the Information in the Substantive Response
123. Again Argentina contends that the Department’s determination was based on the application
of the waiver provisions in this case, which violates Articles 11.3, 6.1, 6.2, 6.8, 6.9, and Annex II of
the Anti-Dumping Agreement. Even if the Pane l accepts the United States’ argument that the
determination was instead based on facts available, the substantive analysis of the WTO obligations
does not change. A decision based on facts available also violates Articles 11.3, 6.1, 6.2, 6.8, 6.9, and
Annex II.
124. “Facts available” can be used only as a last resort when investiga ting authorities are faced
with recalcitrant and uncooperativ e parties. Accordingly, Artic le 6.8 and Annex II permit an
investigating authority to make determinations base d on “facts available” only when an interested
party “refuses access to, or otherwise does not provide, necessary information within a reasonable
period or significantly impedes the investigation . . . .” In this case, however, Siderca provided all
information required by the Department’s sunset re gulations in its substan tive response to the notice
of initiation, and it agreed to cooperate fully in the investigation. Thus, Siderca was not an
uncooperative party. Nevertheless, the Departme nt considered Siderca’s complete substantive
response to be inadequate based on the 50 per cent threshold test and thus determined to conduct an
expedited review. Even worse, there was no determ ination that Siderca failed to cooperate. The
Department thus violated Articles 6.8, 6.9, and Annex II.
125. As for the argument in the US First Submission that the Department used facts available only
for the non-responding Argentine respondents, there is no support for this statement in the sunset
determination. The concept of non-responding Argentine respondents is never even mentioned
directly in the sunset determination. Even if it had been mentioned, as explained in detail above, it
was not a reasonable and objective assessment of the f acts to consider that such parties existed, and to
condition Argentina’s rights in this way without furthe r investigation. Limiting the analysis in this
way violates Articles 11.3, 6.1, 6.2, 6.8, 6.9, and Annex II.
3. The Department’s Determination that termination of the duty would be likely to lead to
continuation of dumping was inconsistent with Articles 11.3 and 2 of the Anti-Dumping
Agreement
(a) There Was No Evidence Before the Department That Dumping Continued During the Sunset
Review Period
126. Assuming arguendo that the likelihood determination was not based on the application of the
waiver provisions, then the record before the Department reflects that the sole bases for the
Department’s likelihood determin ation were: (1) the 1.36 per cent margin from the original
investigation that was calculated using the practice of zeroing negative margins; and (2) the decline in

167 See US Department of Commerce Sunset Reviews (ARG-63 and ARG-64).

volume of Argentine OCTG imports. These pieces of information – with nothing more – are
insufficient to continue an anti-dumping measure under Article 11.3.
127. Following the imposition of the US anti-dump ing measure on Argentine OCTG, Siderca
chose to stop exporting to the US market. As the Appellate Body has explained, declines in import
volumes following the imposition of anti-dumping du ties can result from many factors apart from the
duties.168 The lack of shipments from Siderca was demonstrated through a series of annual reviews
initiated by the Department. Each August from 1996- 1999 (covering the five-year period relevant to
the sunset review that forms the basis of this dispute), representatives of the US industry requested an
annual review of shipments by Siderca. Under US law and practice, the petitioners are required to
identify the exporter for which it requests a review, an d each time during this period, the US industry
requested a review only of Siderca. For example, the US industry’s letter requesting the second
review states: “Review is requested of Siderca be cause it is the only known producer of oil country
tubular goods in Argentina . . . .” 169 As a result of such requests, the Department initiated a review in
each of the four years following the issuance of the anti-dumping order on OCTG from Argentina,
publishing an “initiation notice” naming Siderca as th e exporter to be reviewed. In certain of the
reviews, the Department also issued an anti-dumping questionnaire.170
128. In each of the four reviews requested of Siderca, Siderca replied by stating that it did not
export OCTG to the United States for consumption in the United States during the review period, and
as a result asked that the review be rescinded. In all cases, this “no shipment certification” led to
additional questions from the Department and additional comments from the US industry. In all
cases, the Department ultimately agreed with Si derca’s certification that it made no shipments and
therefore rescinded the annual reviews because there were no shipments to review.
129. Hence, given that Siderca did not ship to the United States following the imposition of the
order, the only evidence before the Department was that Siderca had not continued to dump during the
sunset review period. In addition, the alleged Argentine OCTG imports from the so-called non-
responding respondents were of a very small quantity, and were not subject to administrative reviews
to determine whether they were dumped. The Depa rtment could not simply presume that they were
dumped, and use this as “evidence” that dumping was likely to continue in the future.
130. The Department did not gather or evaluate add itional facts at the time of the sunset review,
but instead based its decision that dumping would likely continue or recur only on the dumping
margin of 1.36 per cent from the original investigation, and the fact that Siderca had stopped
exporting OCTG to the United States.171 This is the sum total of what the European Community aptly
characterized as the “meagre crumb” of evidence supporting this likely dumping determination.172
131. The Department’s reliance on the 1.36 per cent dumping margin established in the original
investigation in 1995 cannot serve as a basis for the Department’s determination that dumping would
be likely to continue or recur.

168 Appellate Body Report, Sunset Review of Steel from Japan, para. 177.
169 Letter from Schagrin Associates to the Honourable William M. Daley of 29 Aug. 1997 (“Oil
Country Tubular Goods from Argentina: Request for Administrative Review”) at 2 (ARG-58).
170 Initiation of Anti-Dumping and Countervailing Duty Reviews , 61 Fed. Reg. 48,882 (Dep’t Comm.
1996)(initiating review for the period 11 Aug. 1995, through 31 July 1996)(ARG-28); Initiation of Anti-
Dumping and Countervailing Duty Reviews , 62 Fed. Reg. 50,292 (Dep’t Comm. 1997)(initiating review for the
period 1 Aug. 1996, through 31 July 1997)(ARG-32); Initiation of Anti-Dumping and Countervailing Duty
Reviews, 63 Fed. Reg. 51,893 (Dep’t Comm. 1998)(initiating review for the period 1 Aug. 1997, through
31 July 1998)(ARG-37); Initiation of Anti-Dumping and Countervailing Duty Reviews , 64 Fed. Reg. 53,318
(Dep’t Comm. 1999)(initiating review for the period 1 Aug. 1998, through 31 July 1999)(ARG-41).
171 See Issues and Decision Memorandum at 5 (ARG-51).
172 Third Party Submission of European Communities, para. 42.

• First, the rate is historic, with no relationship whatsoever to the forward-looking determination
required to invoke the exception of Article 11.3 and continue the measure. The United States
still has never offered a logical explanation of wh at this rate says abou t future dumping, let
alone the likelihood of future dumping.
• Second, as explained in detail below in subs ection b, in the original investigation the
Department calculated the 1.36 per cent margin based on the practice of zeroing negative
margins. In fact without the zeroing practice, there would have been no dumping margin at
all, and there would have been no measure to review.
173

132. To know whether dumping would likely “continue” or “recur” under Article 11.3, an
authority must have current information about dumping. 174 In other words, it becomes necessary to
determine if dumping exists in order to assess it s probable continuation. Alternatively, it becomes
necessary to determine the absence of dumping in order to assess prospectively the probability of
recurrence.
133. As the Appellate Body explained, satisfying these obligations does not necessarily require the
same type of calculation as may be performed in an Article 5 investigation, but the authorities have an
obligation to act diligently and to collect evidence that can form the basis for the requisite
determination.175 The Department’s reliance on the 1.36 margin from the original investigation
cannot satisfy either possibility. The United States argues that the Department determined that
“dumping continued to exist throughout the history of the order . . . .” 176 The Department, however,
had rescinded each of the four administrative review s of Siderca following the order, and thus did not
have evidence of dumping margins throughout the hi story of the order. The Department’s reliance on
such flawed and dated information necessarily resulted in speculation as to whether or not dumping
would be likely to continue or recur were the order to be terminated, rather than a determination based
on sufficient positive evidence.
134. Indeed, particularly in the facts of this case where the Department relied on Siderca’s small
dumping margin of only 1.36 per cent, the Department had an obligation to gather and evaluate
“persuasive evidence” in order to justify its determination of likelihood of dumping. As the Appellate
Body has ruled, “mere reliance” on the determination made in th e original investigation is not
enough.177 This reinforces Argentina’s view of the extreme and unfair situation presented in this case.
135. With respect to import volumes, the Appellate Body in Sunset Review of Steel from Japan ,
stated that:
[T]he 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
decline in import volumes in the third scenario could well have been caused or
reinforced by changes in the competitive cond itions 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 dete rmine that dumping
will recur if the duty is terminated.178

173See, on that issue, the Third Party Submissions of European Communities, paras. 79-89, and Japan
paras. 22-28.
174 See also Third Party Submission of European Communities, para. 12.
175 See Appellate Body Report, Sunset Review of Steel from Japan, para. 111.
176 US First Submission, para. 218.
177See Appellate Body Report, Steel from Germany, para. 88.
178 Appellate Body Report, Sunset Review of Steel from Japan, para. 177.

136. The Department engaged in no such analysis in this case. Nor did it request additional
information from Siderca who had pledged to cooperate fully. Instead, the Department relied solely
on the 1.36 per cent dumping margin and the low import volumes. This does not constitute the
“sufficient factual basis” for the substantive and meaningful determination required by Article 11.3.
(b) Decisive Reliance by the Department on a WTO-Inconsistent Margin (Because It Was
Calculated Using the Practice of Zeroing) as the Basis for the Likelihood Determination Is
Inconsistent with Article 11.3
137. There can be no doubt that the 1.36 per cent margin is based on a calculation method that is
inconsistent with Article 2.4. To calculate the 1.36 per cent margin, the Department applied “zeroing”
by setting all negative margins to zero, and summed th e remaining positive margins. The effect is to
disregard the existence and magnitude of the ne gative margins in determining the amount of
“dumping” arising from the sales under review.
138. This can be seen clearly in Exhibit ARG-52 to Argentina’s First Submission. The comparison
beginning on line 25 indicates “.” in the column “MRGOBS,” meaning that none of the transactions
involving this particular product generated pos itive dumping margins, and the “Total Potential
Uncollected Dumping Duties” (“TOTPUDD”) column for those same transactions similarly is blank.
After setting all the “negative margins” to zero in this manner, the Department summed all of the
positive margins (represented by th e products listed in lines 1-24 of ARG-52), and divided the
resulting figure by the total net US value to calcul ate the overall dumping margin for Siderca. As
shown on the second page of ARG-52, dividing the “TOTPUDD” total ($125,478.93, which, because
of zeroing, does not reflect the “negative margins” generated on many sales) by the “TOTVAL” total
($9,240,392.64) yields the 1.36 per cent margin relied on by the Department in the sunset review.
139. This method overestimated the overall dumping margin by ignoring the US sales that were
not “dumped;” that is, in the words of Article 2.1 of the Anti-Dumping Agreement, were not
“introduced into the commerce of another country at less than its normal value . . . .” This can be seen
in greater detail in Exhibit ARG-66A, Results of the Department’s Margin Calculation for Siderca’s
Sales (Without “Zeroing”), whic h reproduces the results of the Department’s analysis on a
transaction-specific basis. As shown in Exhibit ARG-66A, the Department analyzed 385 individual
sales transactions of Siderca in the original investigation. 179 Unlike the Department’s calculation, the
output in Exhibit ARG-66A does not set the negative margins to zero in fields UMARGIN or PUDD;
that is it does not zero. Instead, if the US price of the sale exceeds the weighted-average normal value
for the comparison product (that is, if there was no dumping as defined in Article 2.1), the
UMARGIN column reports a negative dumping margin on a per unit basis, the PUDD column shows
the extended value of the negative dumping by multip lying the negative unit margin by the QTY, and
the PCTEMARG column shows the percentage negative margin for each US transaction.
140. The results are clear and dramatic. Of the 385 US sales transacti ons examined by the
Department, only 97 were “dumped” within the mean ing of Article 2.1, while more than three times

179 Exhibit ARG-66A, Results of the Department’s Margin Calculation for Siderca’s Sales (Without
“Zeroing”), reports the output from the Department’s computer program, showing for each transaction, in order
from left to right, the sequential line, or “observation” number on the output report (“OBS”), the invoice number
(“INVOICU”), the sale date (“SALEDTU”), the quantity sold (“TOTQTY”), the “control number” or products
involved in the US sales transaction (“CONNUMU”), the “control number” or products involved in the
comparison market sale (“CONNUMT”), the “foreign unit price in dollars” (“FUPDOL,” which is the weighted-
average normal value for the comparison market product), the United States price (“USPR,” which is the net US
sales price for each transaction), the unit margin (“UMARGIN,” which results from subtracting the USPR from
the FUPDOL), the extended margin or “potentially uncollected dumping margin” (“PUDD,” which results from
multiplying the UMARGIN by the QTY), the value of the US sale (“TOTVAL,” which results from multiplying
the USPR by the QTY), and the percentage dumping margin for each transaction (“PCTEMARG,” which results
from dividing the EMARGIN by the VALUE).

as many sales (288) were not dumped. Further, th e total value of dumping on the dumped sales was
$125,478.93 (as indicated in ARG-52, second page), while the total value of negative dumping on the
non-dumped sales was more than 4 times higher, or $527,638.38. When the PUDD field is summed
without the practice of zeroing, an d the total dumping considered by the Department ($125,478.93) is
offset by the total negative dumping ($527,638 .38), the result is a total negative dumping
 of
$402,159.45, which, divided by the total value of US sales of $9,240,342.64, converts the 1.36 margin
used by the Department to a negative 4.35 per cent margin . Clearly, this is not evidence of dumping
as defined by Article 2.1.
141. This effect can also be seen on a product-specific basis, with results that are equally clear and
dramatic. During the period of investigation, Siderca made four US sales of CONNUMU 1 (which
can be verified by the “TOTOBS” column on ARG-52 for line 13, and which can be seen individually
on lines 25, 42, 234, and 369 of Exhibit ARG-66A). The net US price, US quantity, average normal
value, unit margin, extended margin, and net US value for each of the US sales of CONNUMU 1 are
shown below.

OBS
Number
ARG-66A
Net US
Price
US
Quantity
Normal
Value
Unit
Margin
Extended
Margin
US Value
 US$ per
Ton
Ton US$ per
Ton
US$ per
Ton
(“PUDD”)
US$
US$
 (A) (B) (C) (D = C – A) (E = B * D) (F = A * B)
25 $489.015 100.95 $504.234 $15.219 $1,536.40 $49,366.06
42 $491.312 41.35 $504.234 $12.923 $534.36 $20,315.73
369 $583.961 67.09 $504.234 ($79.727) ($5,348.85) $39,177.94
234 $590.391 13.36 $504.234 ($86.157) ($1,151.05) $7,887.62

142. The total net US value for CONNUMU 1 was $116,747.35. The corresponding total
extended margin or “PUDD” was $2,070.76 with zeroing and was negative $4,429.14 without
zeroing. The overall margin for CONNUMU 1 was 1.77 per cent with zeroing. Without zeroing, the
overall dumping margin for CONNUMU 1 was negative 3.79 per cent . Ignoring the fact, and the
extent to which, the third and fourth US sales we re not dumped converted the negative margin to a
positive margin for this product, just as it did on an overall basis, as demonstrated above.
143. Exhibit ARG-66B, Excerpt from the Department’s Margin Calculation Program
Demonstrating “Zeroing,” shows the portion of the program that the Department used to calculate the
overall dumping with zeroing for Si derca in the investigation. Lines 1 thru 4 of the program
calculated the total quantity and value for all of US prod ucts sold by Siderca. This step is the same as
the sum of F of the example above. Lines 12 thru 16 calculated the amount of dumping, total quantity
and value of all US products that contributed to dumping. This is wher e zeroing is applied.
Specifically line 13 of the program (“WHERE EMARGIN GT 0”) instructed the computer to
calculate the total amount of dumping, quantity and value only for those transactions generating
positive extended margins. This step is the same as the sum of only the positive values in column E in
the example above. Line 22 of the program calculates the overall margin by dividing the sum of all
positive extended margins by the total net US value.
144. As shown in the example above, zeroing inflates the overall margin significantly, and, in this
case, without zeroing there would have been no dumping margin. To avoid the overestimation of
dumping margin, the Department simply needs to delete line 13 of the computer program and rerun
the program. When this is done, using the same
 computer program the Department used in the
original investigation and the same database that Siderca provided, the margin is a negative
4.35 per cent on an order-wide basis. This is, in fact, what is shown in Exhibit ARG-66A.

145. The Appellate Body recognized in Sunset Review of Steel from Japan that zeroing is not
consistent with Article 2.4. 180 It does not yield a “fair comparison,” and it does not accurately reflect
whether the product, as a whole, is being sold at less than normal value.
146. The Appellate Body ruled that when a Member relies on a dumping margin in making a
determination in an Article 11.3 review, that margin must be WTO-consistent.181 The Appellate Body
explained that:
Article 2 sets out the agreed disciplines in the Anti-Dumping Agreement for
calculating dumping margins. As observed earlier, we see no obligation under
Article 11.3 for investigating authorities to calculate or rely on dumping margins in
determining the likelihood of continuation or recurrence of dumping. However,
should investigating authorities choose to rely upon dumping margins in making their
likelihood determination, th e calculation of these margins must conform to the
disciplines of Article 2.4. We see no other provisions in the Anti-Dumping
Agreement according to which Members may calculate dumping margins. In the
CRS sunset review, USDOC chose to base its affirmative likelihood determination on
positive dumping margins that had been pr eviously calculated in two particular
administrative reviews. If these margins were legally flawed because they were
calculated in a manner inconsistent with Ar ticle 2.4, this could give rise to an
inconsistency not only with Article 2.4, but also with Article 11.3 of the Anti-
Dumping Agreement.182
147. Accordingly, the Appellate Body “reverse[d ] the Panel's consequential finding, in
paragraph 8.1(d)(iii) of the Panel Report, that th e United States did not act inconsistently with
Article 2.4 of the Anti-Dumping Agreement in the CRS sunset review by relying on dumping margins
alleged by Japan to have been calculated in a manner inconsistent with Article 2.4.”183
148. The Appellate Body reiterated that relying on a WTO-inconsistent margin can “taint the
likelihood determination” under Article 11.3, and that such a margin need not have been challenged in
the underlying administrative proceeding or in a WTO Challenge:
As explained above, if a likelihood determination is based on a dumping margin
calculated using a methodology inconsistent wi th Article 2.4, then this defect taints
the likelihood determination too. Thus, the consistency with Article 2.4 of the
methodology that USDOC used to calculate the dumping margins in the
administrative reviews bears on the consis tency with Article 11.3 of USDOC's
likelihood determination in the CRS sunset review. In the CRS sunset review,
USDOC based its determination that “dumpi ng is likely to continue if the [CRS]
order were revoked” on the “existence of dumping margins” calculated in the
administrative reviews. If these margins were indeed calculated using a methodology
that is inconsistent with Article 2.4 – an issue that we examine below – the USDOC's
likelihood determination could not constitute a proper foundation for the continuation
of anti-dumping duties under Article 11.3. Moreover, a legal defect of this kind
cannot be cured by NSC's failure to take issu e with it in the CRS sunset review or the
administrative reviews. It follows that we cannot agree with the United States'
suggestion that Japan's appeal on this issue must fail because: (i) NSC did not
object, in either the CRS sunset review or the administrative reviews, to the
methodology USDOC used to calculate the dumping margins in question; and (ii)

180 See Appellate Body Report, Sunset Review of Steel from Japan, paras. 134-135.
181 See id. at paras. 126-132.
183 Id. at para. 128.

Japan did not initiate dispute settlement proceedings in the WTO regarding USDOC's
calculation of those margins in the context of the administrative reviews.
184
149. The Appellate Body explained that zeroing (whether in the original investigation or
otherwise) not only distorts the magnitude of the dumping margin, but may also result in a positive
margin that otherwise would not exist:
When investigating authorities use a zeroing methodology such as that examined in
EC – Bed Linen to calculate a dumping margin, whether in an original investigation
or otherwise, that methodology will tend to inflate the margins calculated. Apart
from inflating the margins, such a methodology could, in some instances, turn a
negative margin of dumping into a positive margin of dumping. As the Panel itself
recognized in the present dispute, “zeroing . . . . may lead to an affirmative
determination that dumping exists where no dumping would have been established in
the absence of zeroing.” Thus, the inherent bias in a zeroing methodology of this
kind may distort not only the magnitude of a dumping margin, but also a finding of
the very existence of dumping.185
150. That is precisely the case with Siderca. Ther e would have been no margin in the original
investigation in the absence of zeroing. Conseque ntly, the 1.36 per cent margin (calculated on the
basis of zeroing negative margins) cannot constitute evidence that termination of the measure would
be likely to lead to a continuation or recurrence of dumping. To be clear, Argentina is not claiming
that the original dumping determination violated US WTO obligations because it was calculated based
on the practice of zeroing negative margins. Rath er, Argentina challenges the Department’s reliance
on that margin as the basis for its determinatio n that dumping would be likely to continue under
Article 11.3. The Appellate Body has clarified that the Department may not rely on a dumping
margin which is inconsistent with the substantive st andard of Article 2.4 as the basis for its likelihood
determination under Article 11.3.
4. The “likely margin” reported by the Department to the Commission was inconsistent
with Articles 2 and 11.3
151. The Department determined that if the orde r were revoked, the likely dumping margin to
prevail would be 1.36 per cent. The Department reported this margin to the Commission for purposes
of the Commission’s sunset review and its likeli hood of injury determination. Because the 1.36
per cent margin was inconsistent with Article 2 (because it was based on the WTO-inconsistent
practice of zeroing negative margins), and additionally because it was constructed on the basis of the
Department’s “circumstance of sale” adjustment,186 the Department’s determination that this margin
constituted the likely margin to prevail violated Articles 11.3 and 2.
152. The United States notes that the Department ’s reporting of the likely margin to the
Commission in a sunset review is a construct of US law, rather than a requirement of Article 11.3. 187
Consequently, the United States argues, the Department ’s reporting of the 1.36 per cent margin to the
Commission was not inconsistent with Article 11.3. This argument cannot be accepted. As the
Appellate Body makes clear, once a Member undertakes either to calculate a dumping margin or to
rely on a dumping margin, however, that margin mu st be consistent with the requirements of
Article 2. In the case at hand, because th e United States did not make a WTO-consistent
determination that dumping would be likely to cont inue or recur, it was required to have terminated
the measure.

184 Id. at para. 130.
186 See Argentina’s First Submission, n.14.
187See US First Submission, para. 267.

IV. THE COMMISSION’S SUNSET DETERMINATION
153. Much of what is wrong with the Commission’s dete rmination of whether injury is likely to
continue or recur in this case invo lves the question of proper standard. That is, what kind of analysis
does Article 11.3 require when it states that the authorities must terminate the measure unless they
find that injury is “likely” to continue or recu r? In a typical case, such a challenge might be
complicated by the fact that, unless the authorities ex plain precisely what standard they are applying,
the standard itself may not be discernible from the ag ency’s decision. Also, in this case, the United
States correctly states, and Argentina acknowledges, that both Article 11.3 and the US statute use the
same word, that is “likely.”
154. The Panel’s review of Argentina’s claim on this issue, however, is facilitated by two striking
facts. First, the Appellate Body recently confir med Argentina’s position that the term “likely” in
Article 11.3 means “probable.”188 Second, the US First Submission, and its oral statement at the first
substantive meeting, continues to ta ke the position that “likely” does not mean “probable.” Not only
is this the United States’ position before the Pa nel, but the United States has taken the position
repeatedly before the US courts, and before a NAFTA panel reviewing the same Commission
determination in this dispute.
155. As a result, the issue, as presented to this Panel, is very clear. The Appellate Body has stated
what the standard is, and the United States has stated that it does not apply that standard. These
statements regarding the applicable standard are reviewed briefly in Section A below. In addition, the
Commission’s determination, and the US First Submission, contain several glaring examples that the
United States means what it says: it certainly does not apply a “probable” standard. These examples,
and the conflict with the positive evidence standard of Article 3.1, are reviewed in Section B below.
The rebuttal of the United States’ position with respect to cumulation and the proper timeframe for
determining whether “likely” injury will recur are reviewed in Sections C and D, respectively.
A. THE COMMISSION DID NOT APPLY THE CORRECT STANDARD FOR DETERMINING WHETHER
TERMINATION OF THE ANTI-DUMPING DUTY ORDER WOULD BE LIKELY TO LEAD TO
CONTINUATION OR RECURRENCE OF INJURY AND VIOLATED ARTICLES 11.3 AND 3.1 OF THE
ANTI-DUMPING AGREEMENT
156. Argentina argued in its First Submission that the term “likely” as used in Article 11.3 has its
common and ordinary meaning of “probable.” The United States, in its First Submission, argues that
“likely” simply means “likely,” and that it does not mean “probable.” The United States offers
several other, secondary definitions of “likely” in support of its view that “likely” has no common
and ordinary meaning, and that it does not mean “probable.”
157. Any remaining doubt as to the meaning of “likely” was removed by the Appellate Body’s
decision in Sunset Review of Steel from Japan . The Appellate Body confirmed in that case that the
ordinary meaning of “likely,” as used in Article 11.3, is “probable.” 189 The Appellate Body then
observed that, “[i]n view of the use of the word ‘l ikely’ in Article 11.3, an affirmative likelihood
determination may be made only if the evidence de monstrates that dumping would be probable if the
duty were terminated – and not simply if the eviden ce suggests that such a result might be possible or
plausible.”190

188 See Appellate Body Report, Sunset Review of Steel from Japan, para. 111.
189 See Appellate Body Report, Sunset Review of Steel from Japan , para. 111; see also Panel Report,
DRAMS from Korea , para. 6.48 n.494 (stating in the context of interpreting Article 11.2 “that ‘likelihood’ or
‘likely’ carries with it the ordinary meaning of ‘probable’”); Nippon Steel Corp. v. United States, No. 01-00103,
slip op. 02-153 at 7-8 (Ct. Int’l Trade Dec. 24, 2002)(ARG-17); Usinor Industeel, S.A. v. United States, No. 01-
00006, slip op. 02-152 at 2 (Ct. Int’l Trade Dec. 20, 2002)(ARG-16).
190 Appellate Body Report, Sunset Review of Steel from Japan, para. 111.

158. As explained in Argentina’s First Submission , and not rebutted by the United States, the
Commission has argued repeatedly before US courts that “likely” does not carry its ordinary meaning
of “probable,” but instead means something else. In its more recent declarations, the Commission
stated that “likely” “captures a concept that falls in between ‘probable’ and ‘possible’ on a continuum
of relative certainty.”
191 The US First Submission tells the Panel not to worry about these changing
standards and the litigation in the US courts beca use, ultimately, the reviewing court upheld the
Commission’s re-determination on remand, and th at determination was the same as its initial
determination, which the parties had disputed as being inconsistent with the “likely” standard.192
159. Argentina respectfully submits that the Panel should pay attention to the US litigation and the
Commission’s changing views as to the meaning of the term “likely.” They are directly relevant to
the standard that the agency applied during numerous sunset determinations, including the sunset
determination in this case. In fact, the Commiss ion has expressly taken the position before a NAFTA
panel reviewing this very same OCTG sunset determ ination that “likely” does not, and cannot, mean
“probable.”
193 Before the NAFTA Panel, the Mexican company, TAMSA, argued that the
Commission applied the improper standard, and that the Commission should have given the term
“likely” its common and ordinary meaning, which is “probable” or “more probable than not.” In
responding to this argument, the United States included the following point heading in its brief:
The Statement of Administrative Action’s Explanation of the Likelihood
Standard Excludes TAMSA’s Theory That “Likely” Means “Probable”
194
160. In this section of its brief, the Commission relies on the SAA and claims:
The SAA explains, unambiguously, that after the revocation “[t]here may be more
than one likely outcome.” SAA at 883. The possibility of “more than one likely
outcome” shows that Congress did not intend “likely” to mean “probable” or “more
probable than not.”195
161. The statements could not be clearer that the Co mmission in the underlying investigation did
not consider “likely” to mean “probable.” In fact, it considered the SAA to control the interpretation
of the term “likely” and to preclude any notion that “likely” could mean “probable.” As will be seen
in Section B below, there is ample evidence from the review to demonstrate that the Commission did
not apply a “probable” standard.
162. As for the United States’ argument in its Fi rst Submission that the court upheld the
Commission’s decision in the underlying Usinor Remand, the argument misses the point. The point is
that the court found that the Commi ssion did not apply the correct sta ndard initially, and it directed
the Commission to apply the ordinary and common m eaning of “likely,” which is “probable.” It is
only after the Commission adjusted its analysis and applied a different standard that the court affirmed
the Commission’s remand determination. Thus, the Usinor litigation is yet another proof that the
Commission initially applied the wrong standard.

191 Int’l Trade Comm’n Remand Determ. Pursuant to Usinor Industeel S.A., el al v. United States ,
No. 01-00006 (July 2002) at 6 (non-proprietary version) (ARG-56 bis).
192 US First Submission, para. 283.
193 The NAFTA appeal in question was filed by the Mexican company, TAMSA. While this obviously
was not a review requested by Argentina, it is, without question, a review of the same ITC determination that is
before this Panel. As the United States reminded the Panel and Argentina in its First Submission and during the
oral statement, it conducted this determination on a cumulated basis. Therefore, the arguments that it made
regarding the likely standard before the NAFTA panel are directly relevant to this Panel’s consideration of
whether the Commission applied the correct standard.
194 ITC Brief, Oil Country Tubular Goods from Mexico, Results of Five-Year Review , USA-MEX-201-
1904-06 (8 Feb. 2002) (non-proprietary version) at 43 (excerpts included as Exhibit ARG-67).
195Id.

B. THE COMMISSION’S SUNSET DETERMINATION WAS INCONSISTENT WITH ARTICLE 11.3 AND 3
OF THE ANTI-DUMPING AGREEMENT
1. The Commission’s Sunset Determination was inconsistent with Article 3.1 of the Anti-
Dumping Agreement
163. Article 3.1 provides that, “[a] determination of injury for purposes of Article VI of GATT
1994 shall be based on positive evidence and involve an objective examination of both (a) the volume
of the dumped imports and the effect of the dumped imports on prices in the domestic market for like
products, and (b) the consequent impact of these imports on domestic producers of such products.”
(Emphasis added.)
164. The United States argues that Article 3.1 does not apply to sunset reviews. According to the
United States, the requirements of Article 3.1 are “potentially incompatible” with Article 11.3
reviews, because “[i]mports may not even be present in the market at the time of the sunset review,
and they may not be sold at dumped prices.” 196 The US argument fails for several reasons. First, as
previously established, 197 the provisions of Article 3 – including paragraph 1 thereof – apply to
Article 11.3. Moreover, the United States ignores th e language “for purposes of Article VI of GATT
1994[.]” The Anti-Dumping Agreement as a whole clarifies Article VI of GATT 1994. Thus,
Article 3.1 makes clear that all determinations of injury – whether a determination of injury in an
original investigation or a determination of the likelih ood of injury in a sunset review – are subject to
the requirements of Article 3. Finally, the Unite d States ignores the fundamental requirement of
Article 3.1: that a determination of injury sha ll be based on positive evidence and an objective
examination of the facts. Article 3.1 makes clear that these fundamental principles apply to a
likelihood of injury determination under Article 11.3.
165. Therefore, in evaluating whether the Commission’ s likelihood of injury determination in the
sunset review of OCTG from Argentina was consis tent with Article 11.3, the panel must consider
whether the Commission based its determination on positive evidence and examined the facts
objectively.
166. In its oral statement at the first panel meetin g of 9 December 2003, the United States argued
that the Commission’s sunset determination was based on positive evidence and an objective
evaluation of the facts.198 Pointing to the Commission’s determination, the United States asserted that
“the [Commission] carefully reviewed an extensive array of factors and evidence relative to the likely
volume, price effect and impact of imports on the domestic industry.”199
167. Mere citation to a voluminous record of information does not satisfy the requirement to
examine the record objectively and to base conclusions on positive evidence. In evaluating whether
the Commission’s establishment of the facts was proper and its assessment objective, it is important to
keep in mind that the Commission failed to apply the correct “likely” standard under Article 11.3 and
conducted a cumulative injury analysis. As a result, the Commission simply did not support its
determination that injury would lik ely continue or recur upon termination of the order on Argentine
OCTG with a sufficient factual basis.
168. That the Commission failed to base its conc lusions on positive evidence and objectively
evaluate the facts is evident from its findings with respect to volume, price, and impact. Argentina
has already discussed the Commission’s findings in detail in the first written submission and oral

196 US First Submission, para. 305.
197 As established above in Section II.C.2, an authority’s determination under Article 11.3 of whether
“injury” would be likely to continue or recur must satisfy the requirements of Article 3.
198 See US First Oral Statement, para. 23.
199 Id. at para. 24.

statement at the first panel meeting, and will not recount all of the evidence here.
200 Argentina will,
however, comment briefly on the Commission’s approach with respect to each factor, as it illustrates
the fundamental problem with the Commission’s analysis: The Commission speculated that certain
outcomes were possible, instead of relying on positive evidence that certain events were probable.
169. With respect to the volume of imports, the United States claims that “the [Commission] found
that producers in the five countries involved had both the capacity and the incentive to increase their
exports to the United States.” 201 This assertion is somewhat misleading. With respect to the subject
producers in Argentina, Italy, and Mexico (as well as the only Japanese producer to participate in the
sunset review), the Commission actually found that “[t]he recent . . . capacity utilization rates
represent[ed] a potentially important constraint on the ability of [the] subject producers to increase
shipments of casing and tubing to the United States.” 202 Thus, the Commission recognized positive
evidence indicating that the volume of imports was not likely to increase significantly in the event of
revocation of the orders.
170. Despite this positive evidence of capacity co nstraints, however, the Commission determined
that the subject producers had “incentives” to sh ift “their productive cap acity to producing and
shipping more casing and tubing to the US market.” 203 The Commission based its conclusion that the
subject producers had “incentives” to ship more OCTG to the United States on five findings. 204 As
demonstrated by Argentina in its first submission an d at the first panel meeting, however, each one of
these findings was based on speculation, rather than on positive evidence.205 Further, in making these
findings, the Commission freque ntly disregarded positive ev idence supporting the opposite
conclusion.206 As a result, the Commission failed to dete rmine, based on positive evidence, that the
recurrence of injury upon revocation of the orders on OCTG was probable.
171. In sum, in the face of positive evidence indicating that the recurrence of injury was not likely
based on the volume analysis, 207 the Commission invented “incentives” – based on conjecture and
speculation – in order to render an affirmative likelihood determination. The Commission’s approach
to the volume factor demonstrates that it failed to support its determination with positive evidence and
to objectively examine the record. The Commission’s sunset determination was therefore inconsistent
with Articles 3.1 and 11.3. Further, the Commission ’s evaluation of the volume factor demonstrates
its failure to apply the “likely” standard of Article 11.3.
172. The US First Submission also reveals similar reliance on conjecture with respect to the price
effects of the “likely” imports. In response to Argentina’s claim that the Commission cited paltry
evidence of likely underselling by imports and potent ial price effects of the imports, the United States
makes the following statement in its brief:
As for underselling by imports, Argentina’s complaints relate solely to the ITC’s
discussion of underselling during the current review period. But the ITC itself placed
little weight on this point, as it recognized that the orders had significantly reduced
the volume of subject imports. What was much more significant to the ITC – and

200 See Argentina’s First Submission, Sec. VIII.B.2; Argentina’s First Oral Statement, paras. 115-126.
202 Oil Country Tubular Goods from Argentina, Italy, Japan, Korea, and Mexico , USITC Pub. 3434,
Inv. Nos. 701-TA-364, 731-TA-711, and 713-716 (June 2001) at 19 (“ Commission’s Sunset Determination”)
(ARG-54).
203 Id.
204 See id. at 19-20.
205 See Argentina’s First Submission, paras. 244-246; Argentina’s First Oral Statement, paras. 119-123.
206 See id.
207 The evidence included the testimony of German Cura, President of Siderca, at the Commission’s
sunset hearing. See ITC Hearing Tr., Oil Country Tubular Goods from Argentina, Italy, Japan, Korea, and
Mexico (8 May 2001) (Mr. German Cura) at 200-208 (ARG-68).

what Argentina completely ignores in its subm ission – is the fact that underselling by
subject imports during the original investigations drove down US prices.208
173. This statement regarding price effects speaks volumes. In other words, the Commission
admits that it had very little evidence of likely underse lling by the likely imports. In fact, it says that
it placed “little weight” on any such evidence. In stead, it gave greater weight to the information
developed five years earlier in the original investigation. This admission runs completely contrary to
the requirements of Article 11.3 and the rigorous examination required by the Appellate Body in
Sunset Review of Steel from Japan. It is simply not acceptable for the reviewing authorities to rely on
information from the original investigation that led to the measure as the same basis for continuing the
measure for an additional five years. If the auth orities cannot develop a sufficient factual basis to
support the notion that imports are likely to have detrimental price effects on the domestic industry,
then they cannot presume that those price effects will occur.
174. A similar admission appears in the very next paragraph of the US First Submission, where the
United States attempts to refute Argentina’s arguments that it gave undue weight to the fact that
domestic prices were increasing at the end of the period examined. The United States claims:
Second, evidence from the original investigation strongly supports a finding that
imports can drive down domestic prices even during a period of strong demand.
Thus, it was completely logical for the ITC to conclude that whatever current prices
may be, imports would drive down or suppress the price of the domestic like product
if the orders were revoked.209
175. These two sentences accurately portray the re ality of the Commission’s analysis. From a
finding in the original investigation that imports “can” drive down domestic prices, the Commission
concludes that imports “would” drive down or supp ress the price of domes tic like products if the
order were revoked. In other words, because it is possible (as demonstrated five years earlier), then it
must be “likely” to occur if the orders are revoked. Again, this type of reasoning is unacceptable
under Article 11.3, and it demonstrates that the Comm ission is not applying a “likely” standard and
that the decision in this case is not based on positive evidence of likely price effects.
176. The United States’ defence of the Commission’s “impact” analysis suffers from the same
problem. Despite the fact that the Commission found that the domestic industry’s condition had
improved and that its current condition was “positive,” the Commission nonetheless found that
“revocation of the orders likely would lead to a si gnificant increase in the volume of subject imports,
which likely would undersell the domestic like product and significantly depress or suppress the
domestic industry’s prices, leading to a significant adverse impact on the domestic industry.”210 In its
only defence against Argentina’s argument with re spect to the impact analysis, the United States
offers the following sentence:
The ITC noted that in the original investiga tion, a significant increase in demand had
not precluded subject imports from gainin g market share and having adverse price
effects.211
177. Once again, the conclusion of what is likely to occur in the future depends wholly on the fact
that it occurred in the original inve stigation, five years in the past. In this particular instance, the
problem is compounded because th e Commission is reduced to saying that increased demand in the
past had not precluded subject imports from gaining market share and having adverse price effects,

209 Id. at para. 339 (emphasis added, footnotes omitted).
210 Id. at para. 342.
211 Id.

and drawing the inference from this observation th at likely imports were likely to have the same
impact. One is left to imagine how an exporter could ever meet this standard given that, by definition,
most anti-dumping measures in place in the United States had some evidence of adverse impact
supporting the initial decision.
178. Article 11.3 demands a rigorous analysis of the likely consequences of revocation. With
respect to injury, Article 3.1 and Article 11.3 require positive evidence that injury is likely to continue
or recur in order for the measure to be continued. The Commission’s conclusions with respect to
volume, price, and impact in this case fall short of meeting the substantive and evidentiary standard.
2. The Commission’s Determination was inconsistent with Article 3.4 of the Anti-Dumping
Agreement
179. Article 3.4 of the Anti-Dumping Agreement requ ires the authority to evaluate the following
“relevant economic factors and indices having a bearing” on the domestic industry: actual and
potential decline in sales, profits, output, market share, productivity, return on investments, or
utilization of capacity, factors affe cting domestic prices, the magnitu de of the margin of dumping,
actual and potential negative effects on cash flow , inventories, employment, wages, growth, and
ability to raise capital or investments.
212 I n i t s s u n s e t d e t e r m i n a tion of OCTG from Argentina,
however, the Commission failed to address several of the mandatory factors, and provided a mere
mechanical recitation of several others. The Co mmission’s determination was therefore inconsistent
with Article 3.4.
180. The United States argues that, because there may not be an impact from dumped imports to
evaluate at the time of the sunset review, “the ob ligations described in Article 3.4 cannot practicably
be applied to all sunset reviews.” 213 Even if a particular factor turns out not to be germane to the
authority’s analysis, however, the authority still has an obligation under Artic le 3.4 to address each
factor. As stated by the Panel in H-Beams from Poland , the authority must provide “a persuasive
explanation as to how the evaluation of relevant factors led to the determination of injury.”214
181. The United States also argues in its First Submission that the Commission in fact considered
all of the elements identified in Article 3.4. 215 The United states includes on page 109 a table
indicating the “location in ITC Report” of statistics re lated to the relevant factors. The US rebuttal is
not effective and reflects a misunderstanding of the kind of analysis required by Article 3.4. In Egypt
– Steel Rebar , the panel held that the mere presentation of tables of data concerning the economic
factors and indices listed in Article 3.4, without more, does not constitute an “evaluation” in the sense
of Article 3.4. 216 Accordingly, the panel ruled, in order to “rebut a prima facie case that its
‘evaluation’ under Article 3.4 was inadequate or did not take place at all[,]” a Member must produce a
“written record – whether in the di sclosure documents, in the published determination, or in other
internal documents – of how [the] factors [had] been interpreted or appreciate d by [the] investigating
authority during the course of the investigation . . . .” 217 The Commission did not do this in its
determination, and the United States has failed to demonstrate otherwise in its First Submission.

212 Panel Report, Thailand – Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy
Steel and H-Beams from Poland, WT/DS122/R, adopted 5 April 2001, para. 7.236 (“ H-Beams from Poland ”).
The Appellate Body agreed with the panel report in entirety. See Appellate Body Report, Thailand – Anti-
Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-Beams from
Poland,WT/DS122/AB/R, adopted April 5, 2001, para. 125 (“H-Beams from Poland”).
213 US First Submission, para. 346.
214 Panel Report, H-Beams from Poland, para. 7.236.
215 US First Submission, para. 347.
216 Panel Report, Egypt – Definitive Anti-Dumping Measures on Steel Rebar from Turkey ,
WT/DS211/R, adopted 1 October 2002, para. 7.42 (“Egypt – Steel Rebar”).
217 Id. at para. 7.49.

3. The Commission’s Determination was inconsistent with Article 3.5 of the Anti-Dumping
Agreement
182. With regard to the required causation analysis , Article 3.5 directs the authority to “examine
any known factors other than the dumped imports which at the same time are injuring the domestic
industry, and the injuries caused by these other factors must not be attributed to the dumped imports.”
In the sunset review of OCTG from Argentina, however, the Commission failed to separate and
distinguish the potential injurious effects of othe r causal factors from the potential effects of the
dumped imports. Thus, the Commission’s determination was inconsistent with Article 3.5.
183. The United States argues that “textual indication s in Article 3.5” show that “it specifically is
not applicable to sunset reviews.” 218 The United States attempts to demonstrate that each and every
word of Article 3.5 cannot practicably apply to sunset reviews. For example, the United States points
out that Article 3.5 refers to existing “injury,” but “in a sunset review, with an anti-dumping order in
place, there may be no current injury or causal link . . . .”219 In addition, the United States refers to the
Article 3.5 requirement not to attribute the injurious effects from other known sources of injury to the
dumped imports. With respect to this provision, the United States argues, “In a sunset review, where
the focus is on evaluating the likely effect of imports upon expiry of the duty (i.e., at some point in the
future), other factors ‘which at the same time ar e injuring the domestic industry’ will not be ‘known’
to the investigating authority.”220
184. As demonstrated previously, however, according to Footnote 9 of the Anti-Dumping
Agreement, “injury” for purposes of Article 11.3 “shall be interpreted in accordance with the
provisions of [Article 3].” The fundamental requirement of Article 3.5 that the authority establish a
causal link between the dump ed imports and injury to the domestic industry is relevant to sunset
reviews under Article 11.3. In the context of a sunset review, in order to render an affirmative
likelihood of injury determination, Article 3.5 re quires the authority to demonstrate that, upon
termination of the anti-dumping measure, the subject imports – through either the continuation or
recurrence of dumping – would be likely to cause in jury to the domestic industry. In addition,
Article 3.5 requires the authority not to ascribe the effects from other known potential sources of
injury to the subject imports.
185. In the sunset review of OCTG from Argent ina, the Commission failed to separate and
distinguish the potential injurious effects of othe r causal factors from the potential effects of the
dumped imports. The United States has been unable to demonstrate that the Commission satisfied the
non-attribution requirement of Article 3.5.
C. THE COMMISSION’S APPLICATION OF A CUMULATIVE INJURY ANALYSIS IN THE SUNSET
REVIEW OF OCTG FROM ARGENTINA WAS INCONSISTENT WITH ARTICLES 11.3 AND 3.3 OF
THE ANTI-DUMPING AGREEMENT
186. As set out in the first submission and oral statement, Argentina submits that the
Commission’s application of a cumulative injury analysis in the sunset review of OCTG from
Argentina was inconsistent w ith Articles 11.3 and 3.3 of the Anti-Dumping Agreement. 221 Argentina
raised three independent arguments as to why the conduct of a cumulative analysis was WTO-
inconsistent:

218 US First Submission, para. 350.
219 Id. at para. 352.
220 Id. at para. 353.
221 See Argentina’s First Submission, VIII.D-F; Argentina’s First Oral Statement, paras. 104-112.

• The text of Article 11.3 (and use of the singular “duty”) prohibits cumulation. This is further
confirmed by the text of Article 3.3 of the Anti-Dumping Agreement, which limits cumulation
to “investigations” and even then only where certain conditions are met;
• Assuming arguendo that Articles 11.3 and 3.3 do not prec lude cumulation in sunset reviews,
then the terms of Article 3.3 must be applied to any cumulative analysis in a sunset review.
Application of either the de minimis or negligibility requirements (both of which must be
satisfied) would have prevented cumulation in th e sunset review of OCTG from Argentina;
and
• The Commission’s use of a cumulative injury analysis in the sunset review of OCTG from
Argentina was also inconsistent with Article 11.3, because it prevented the Commission from
applying the correct “likely” standard.

187. Rather than recast these arguments in full, for purposes of this second submission, Argentina
will focus this discussion on the US counterarguments. It is important to recognize at the outset that
the Panel’s decision with respect to cumulation in Sunset Review of Steel from Japan rested on very
narrow grounds, and that the issue of whether cumulation is pe rmitted in Article 11.3 sunset reviews
is still a matter of first impression under the Anti-Dumping Agreement.
222
1. The text of Article 11.3 prohibits cumulati on. Under Article 3.3 of the Anti-Dumping
Agreement, the use of cumulation is only p ermitted in “investigations,” and even then
only where certain conditions are met
188. According to the United States, "Argentina argue s that because cumulation is not expressly
permitted in Article 11.3, the ITC is prohibited from engaging in a cumulative analysis in a sunset
review."223 The United States misconstrues Argentina’ s argument. Argentina does not argue that
Article 11.3 is silent with respect to cumulation. Argentina asserts that Article 11.3 – both pursuant to
its terms and as interpreted in its context – expressly prohibits cumulation.
189. Pursuant to its terms, Article 11.3 applies to “any definitive anti-dumping duty” and requires
the “expiry of the duty.” In each reference, the draf ters chose the singular and avoided the plural. In
addition, the context of Article 11.3 reinforces the clear text that Article 11.3 prohibits cumulation.
Article 11.3 is an implementing provision of Artic le 11. Article 11.1, the umbrella provision of
Article 11.3, directs that “[a]n anti-dumping duty shall remain in force only as long as and to the
extent necessary to counteract du mping which is causing injury.” (Emphasis added.) Again, the
drafters have used the singular. Thus, on its face and interpreted within its context, Article 11.3 does
not permit a cumulative analysis of the likely injurious effects of multiple anti-dumping orders.
190. The United States contends that Article 11.3’s reference to the “duty” is not conclusive. 224
Yet, in Sunset Review of Steel from Japan , “[t]he United States argue[d] that the meaning of the word

222 The Panel addressed the narrow issue of “whether the obligation relating to the negligibility
standard under Article 5.8 for the purposes of a cumulative injury assessment under Article 3.3 in investigations
also applies to sunset reviews under Article 11.3.” Panel Report, Sunset Review of Steel from Japan, para. 7.93.
The Panel explicitly stated that it was not addressing the issue of whether Article 11.3 permits cumulation in the
likelihood of injury determination: “For this reason, we do not address the more general issue of whether or not
cumulation is permitted in sunset reviews.” Id. at 7.104 (emphasis added). In summarizing the Panel’s findings
in Sunset Review of Steel from Japan, the Appellate Body stated, “The Panel also found (and Japan does not
appeal these findings) no inconsistency with the United States’ WTO obligations in respect of . . . cumulation in
sunset reviews . . . .” Appellate Body Report, Sunset Review of Steel from Japan, para. 6. Hence, the Appellate
Body’s statement regarding what Japan had not appealed necessarily is limited to the narrow issue addressed by
the Panel, and does not speak to the broader and still unresolved question of whether cumulation is permitted in
sunset reviews.

223 US First Submission, para. 363.
224 See id. at para. 366.

‘duty’ in Article 11.3 is explained in Article 9.2 of the Anti-Dumping Agreement, which ‘makes clear
that the definitive duty is imposed on a product-specific ( i.e., order-wide ) basis, not a company-
specific basis.”225 The Appellate Body agreed with the Unit ed States “that this reference in Article
9.2 informs the interpretation of Article 11.3.” 226 Thus, the Appellate Body’s decision in Sunset
Review of Steel from Japan confirms that the use of “duty” in the singular means that the authority
must determine whether the termination of a si ngle anti-dumping order – and not multiple anti-
dumping orders – would be likely to lead to injury.
191. The Appellate Body’s decision in Steel from Germany suggests that it understands that the
injury analysis in a sunset review is not conduc ted on a cumulated basis: “Thus, in our view, the
terms ‘subsidization’ and ‘injury’ each have an independent meaning in the SCM Agreement which is
not derived by reference to the other. It is unlikely that very low levels of subsidization could be
demonstrated to cause ‘material’ injury.”227 The Appellate Body’s statement would be true only
where the injury analysis in a sunset review is not conducted on a cumulated basis.
192. Finally, the United States asserts that “cum ulation in anti-dumping investigations was a
widespread practice among GATT c ontracting parties prior to the adoption of Article 3.3 in the
Uruguay Round, even though the Tokyo Round Anti-Dumping Code was silent on the subject.” 228
The fact that cumulation was not regulated by the Tokyo Round, however, weakens, rather than helps,
the US argument. Prior to the Uruguay Round, th e use of cumulation in injury determinations
generated several conflicts. Consequently, the dr afters of the Uruguay Round anti-dumping code –
through Article 3.3. – limited the use of cumulation to “investigations,” and even then only where
certain conditions are met.
193. Accordingly, by conducting a cumulative injury analysis in the sunset review of OCTG from
Argentina, the Commission violated Articles 11.3 and 3.3.
2. Assuming arguendo that Articles 11.3 and 3.3 do not preclude cumulation, then the
terms of Article 3.3 must be applied to any cumulative analysis in a sunset review
194. In the alternative, Argentina argues that, even assuming that Articles 3.3 and 11.3 do not
preclude cumulation in Article 11.3 reviews, then the terms of Article 3.3 must be applied to any such
cumulative analysis in a sunset review. 229 The application of either the de minimis or negligibility
requirements under Article 3.3 (by virtue of the cros s-reference to Article 5.8) would have prevented
cumulation in the Commission’s sunset determination of Argentine OCTG.
195. The US rebuttal to Argentina’s alternative argum ent relies on the premise that Article 3 does
not apply to sunset reviews under Article 11.3. 230 As Argentina has demonstrated, however, the
disciplines of Article 3 apply to Article 11.3.
196. In addition, the US relies on the Panel’s decision in Sunset Review of Steel from Japan .231 In
that decision, the Panel held that, because Article 3.3 is limited by its own terms to “investigations,”
“the cross-reference in Article 3.3 to the negligibility standard in Article 5.8 does not apply to sunset
reviews.”232 Japan did not appeal this ruling.

225 Appellate Body Report, Sunset Review of Steel from Japan, para. 150 (emphasis added).
226 Id.
227 Appellate Body Report, Steel from Germany, para. 81.
228 US First Submission, para. 370.
229 See Argentina’s First Submission, Sec. VIII.E; Argentina’s First Oral Statement, para.108.
231 See id. at paras. 374-378.
232 Panel Report, Sunset Review of Steel from Japan, para. 7.102.

197. In response, Argentina first notes that the Panel’s ruling in Sunset Review of Steel from Japan
is not inconsistent with Argentin a’s assertion above that, because Article 3.3 restricts the use of
cumulation to “investigations,” Article 3.3 precludes the use of cumulation in sunset reviews.
However, in the event that the Panel finds that cu mulation is not prohibited by Articles 11.3 and 3.3,
then the authorities must respect the substantiv e standards for cumulation in Article 3.3. The
authorities may not cumulate in a manner that diminishes the rights of individual countries under
Article 11.3. In this case, with negligible import volumes and a de minimis dumping margin,
Argentina had a right to expect that its export performance would be taken into account in the
likelihood of injury analysis, and not rendered irrele vant by an analysis that focused on the export
practices of producers from other countries.
198. The United States also argues that “the appli cation of Article 5.8’s negligibility thresholds
would be unworkable in the context of sunset reviews.”
233 The United States suggests that it would
not be practicable for the authority to assess whet her the likely – as opposed to the current – volume
of imports would be negligible. Article 5.8, how ever, explicitly directs the authority to consider
whether the “actual or potential ” volume of imports is negligible. Consequently, it is clear that
Article 5.8 contemplates that in certain injury determinations the authority will need to estimate future
import volumes.
199. Finally, as set out in Argentina’s First Submission and oral statement, 234 the Commission’s
use of a cumulated injury analysis in the sunset review of OCTG from Argentina was also
inconsistent with Article 11.3, because it prev ented the Commission from applying the correct
“likely” standard. In reaching its decision to cumulate in this case, the Commission considered
whether imports from each subject source had any possible discernible adverse impact on the
domestic industry.235 As part of its analysis, the Commission did not find that the Argentine imports
would have no discernible adverse impact on the domestic industry. In other words, the Commission
reasoned that the Argentine imports could have a possible adverse impact on the domestic industry.
This low standard, cast in a double-negative, runs dir ectly counter to the “likely” standard established
by Article 11.3. The United States does not respond to this argument in its First Submission.
200. This use of a double negative formulation is contrary to the panel’s decision in DRAMS from
Korea.236 A “not unlikely” standard does not set the same standard as “likely.” Worse still, the “no”
discernible adverse impact test used by the Commission establishes a standard that is directly contrary
to a “likely” standard. Under this formulation, finding any discernible impact leads to cumulation,
which as in this case can lead to a finding of “likely” injury without regard to any “positive evidence”
relating to probable imports from individual countries.

233 US First Submission, para. 379.
234 See Argentina’s First Submission, Sec. VIII.F; Argentina’s First Oral Statement, paras. 109-111.
235 Commission’s Sunset Determination at 6, 10-16. Pursuant to 19 USC. § 1675a(a)(7) “[t]he
Commission shall not cumulatively assess the volume and effects of imports of the subject merchandise in a
case in which it determines that such imports are likely to have no discernible adverse impact on the domestic
industry.”
236 Panel Report, DRAMS from Korea , para. 6.45 (“We consider that a failure to find that an event is
‘not likely’ is not equivalent to a finding that the event is ‘likely.’”)

D. THE TIME FRAME WITHIN WHICH INJURY WOULD BE LIKELY TO CONTINUE OR RECUR UNDER
ARTICLE 11.3 OF THE ANTI-DUMPING AGREEMENT
1. The US Statutory Provisions as to the time fr ame within which injury would be likely to
continue or recur are as such inconsistent with Articles 11.3 and 3 of the Anti-Dumping
Agreement
201. In its first written submission, Argentina demons trated that 19 USC. §§ 1675a(a)(1) and (5)
are inconsistent as such with Articles 11.3 and 3 of the Anti-Dumping Agreement. 237
Section 1675(a)(1) directs the Commission to determine whether injury would be likely to continue or
recur “within a reasonably foreseeable time.” The SA A explains that “‘reasonably foreseeable time’
... normally will exceed the ‘imminent’ timeframe applicable in a threat of injury analysis.” 238
Moreover, section 1675(a)(5) mandates that the Co mmission “shall consider that the effects of
revocation or termination may not be imminent, but may manifest themselves only over a longer
period of time.”
202. Article 11.3, however, requires the authority to determine whether termination of an anti-
dumping measure would be likely to lead to the continuation or recurrence of injury upon termination
of the measure . Thus, the authority’s likelihood of inju ry determination must not be based on
speculation about possible market conditions several years into the future, but rather must be based
upon the likelihood of injury upon “expiry” of the measure. By defining a “reasonably foreseeable
time” as longer than an “imminent” time, the US statutory provisions are inconsistent with Article
11.3, which requires the determination to be based upon injury upon “expiry” of the duty.
203. The United States argues that Article 11.3 is silent on the question of the relevant time frame
in which injury would be likely to continue or recur, and thus WTO Members “remain free to
determine under their own laws and procedures the time frame relevant in sunset inquiries.” 239 There
are two problems with this argument. First, the United States ignores the immediate context of
Article 11.3. WTO Members adopted Article 11.3 to enforce the underlying principle of Article 11:
that anti-dumping measures “shall remain in force on ly as long as and to the extent necessary to
counteract dumping which is causing injury.” Accordingly, when read together with its umbrella
provision, Article 11.1, it is evident that the time frame in which injury would be likely to continue or
recur under Article 11.3 must be as curtailed as po ssible to ensure that anti-dumping measures are
maintained only as long as necessary
 to counteract injurious dumping. Second, unbridled discretion
in defining the relevant time frame is not consistent with the “likely” standard of Article 11.3, and
even less so when considered in light of 11.1.
204. Sections 1675(a)(1) and (5) are also inconsis tent with Articles 3.7 of the Anti-Dumping
Agreement. Article 3.7 requires injury determinations to be “based on facts and not merely on
allegation, conjecture or remote possibility,” and that the circumstances under which injury would
occur be “imminent.” The US provisions provide that the likelihood of injury determination need not
be based on “imminent” injury, thereby fostering speculation.
205. The United States narrowly reads Articles 3.7 a nd 3.8 to be limited to threat determinations.
Pursuant to Footnote 9 of the Anti-Dumping Agreement, however, “injury” under Article 11.3 must
“be interpreted in accordance with the provisions of [Article 3,]” which includes Articles 3.7 and 3.8.
Although Articles 3.7 and 3.8 only reference thre at determinations specifically, both threat
determinations and likely injury de terminations require an assessment of future injury. Accordingly,
the requirements of Articles 3.7 and 3.8 are relevant to sunset reviews under Article 11.3. Article 3.7

237 See Argentina’s First Submission, Sec. VIII.C.1.
238SAA at 887 (ARG-5).

requires that the circumstances under which injury will occur be “imminent” (such as upon expiry of
the duty) and Article 3.8 requires that authorities decide future injury cases with “special care.”
2. The Commission’s application of the Statutory Provisions as to the time frame within
which injury would be likely to continue or recur was inconsistent with Articles 11.3 and
3 of the Anti-Dumping Agreement
206. The Commission applied 19 USC. §§ 1675a(a)(1) and (5) in the sunset review of OCTG from
Argentina; therefore, its sunset determination wa s inconsistent with Articles 11.3 and 3. The
Commission provides no indication at all as to the time period it considered to be a “reasonably
foreseeable time” in the sunset review of OCTG from Argentina. The only known information was
that the US industry was doing well at the time of th e review. So Argentina is left to wonder when it
was that the Commission believed that things would go bad. Not upon expiry of the duty says the
United States.
240 Is the time period one year? Three years? Five years? In the end, are these periods
the same? Are they all equally consistent with Article 11.3? In this case, there is no way to determine
because the Commission did not indicate the time fra me. Hence, these provis ions were applied in a
manner inconsistent with Article 11.3.
V. CONSEQUENTIAL VIOLATIONS UNDER ARTICLE VI OF THE GATT 1994,
ARTICLES 1 AND 18 OF THE ANTI-DUMPING AGREEMENT, AND ARTICLE
XVI:4 OF THE WTO AGREEMENT
207. In Section IX of Argentina’s First Submission , Argentina argued that the measures identified
in the panel request, including the Department’s de termination to conduct an expedited review, the
Department’s Sunset Determination, the Commission ’s Sunset Determination, and the Department’s
determination to continue the orde r, and the relevant US laws, regulations, policies, and procedures,
are inconsistent with the obligations of the Un ited States under Article VI of the GATT 1994,
Articles 1, 18.1, and 18.4 of the Anti-Dumping Ag reement, as well as Article XVI:4 of the WTO
Agreement.
208. In rebuttal, the United States submits that none of the measures identified by Argentina are
inconsistent with provisions of the Anti-Dumpi ng Agreement, and therefore, there can be no
consequential violations.241 For the reasons previously set out, however, Argentina believes that it has
persuasively demonstrated that the identified US measures, both as such and as applied, violate the
Anti-Dumping Agreement and GATT 1994. Acco rdingly, Argentina has also proven its
consequential claims.
209. In addition, the United States argues that th e Department’s Determination to Expedite does
not constitute a “separately challengeable measure[.]” 242 The United States describes the
Department’s Determination to Expedite as an “i nterlocutory decision” and lumps it into a vast
category of “[h]undreds, perhaps thousands, of discrete preliminary decisions [that] went into what
eventually became an anti-dumping measure.”243 The United States unconvincingly seeks to diminish
the significance of the Department’s Determinatio n to Expedite. The Department’s inadequacy
determination was the sole basis for either the deemed waiver or the application of facts available.
Either way, the Department’s affirmative likelihood determina tion flowed directly from its

241 US First Submission, para. 382. The United States also contends that Argentina’s panel request did
not properly identify its dependent claims. See id. at 381. Argentina addresses this argument in Section VI,
below.
242 Id. at 384.
243 Id.

inadequacy determination. The Department’s Dete rmination to Expedite thus constitutes a measure
for purposes of WTO challenge.244
210. Even if the Determination to Expedite does not constitute a separate, challengeable measure,
however, it is still necessarily before the panel. Because the inadequacy determination was integral to
the Department’s finding of likely dumping in the sunset determination, the inadequacy determination
cannot be divorced from the Department’s Sunset Determination. Therefore, whether it is considered
a measure or not, the panel must evaluate the WTO- consistency of the Department’s Determination to
Expedite. Indeed, despite its argument that the De termination to Expedite does not constitute an
independent measure, the United States itself recognizes that this determination may still be
“challenged in WTO dispute settlement as part of a challenge to a bona fide measure[,]” such as the
Department’s Sunset Determination.245
VI. US REQUEST FOR PRELIMINARY RULINGS
A. ARGENTINA’S PANEL REQUEST COMPLIED FULLY WITH DSU ARTICLE 6.2
1. Introduction
211. In its opening statement to the Panel on 9 December 2003, the United States said that
“[n]owhere” in the US First Submission is there an allegation that Argentina’s Panel Request failed to
“identify the specific measures at issue.”246 As Argentina stated in its closing statement to the Panel
on 10 December 2003, this is a welcome admission, for two reasons.
212. First, it confirms that the US measures that Ar gentina is challenging are limited, specific, and
have been identified with precision in its Panel reque st. Second, this concession by the United States
means that there now remains only a single Article 6.2 issue before the Panel: did Argentina fail to
“present the problem clearly,” such that the United States has suffered actual prejudice during the
course of the panel proceedings? It is a wonder that the United States tries to advance such a claim
given its assertion in its opening statement that:
[M]ost of the issues in this dispute shoul d sound very familiar. Indeed, Argentina’s
‘as such’ claims largely raise issues that have either been already addressed in other
disputes or that are closely related to those addressed in other disputes.
247
If this is true, how can the United States claim that it has suffered prejudice in this case?248
213. Argentina stands fully by all of the arguments it set out in its Submission on the US Request
for Preliminary Rulings. While there is no need to repeat all of these arguments here, Argentina

244 Further, the Appellate Body’s discussion of what constitutes a measure for purposes of a WTO
challenge makes clear that this determination can be challenged by Argentina. See Appellate Body Report,
Sunset Review of Steel from Japan, paras. 85-88.
245 Id.
247 Id. at para. 4.
248 The Appellate Body has repeatedly made clear that “[t]he procedural rules of WTO dispute
settlement are designed to promote, not the development of litigation techniques, but simply the fair, prompt and
effective resolution of trade disputes.” Appellate Body Report, United States – Tax Treatment For "Foreign
Sales Corporations", WT/DS108/AB/R, adopted 20 March 2000, para. 166. This was affirmed by the Appellate
Body in H-Beams from Poland and High Fructose Corn Syrup : see Appellate Body Report, H-Beams from
Poland, para. 97 and Appellate Body Report, Mexico – Anti-Dumping Investigation of High Fructose Corn
Syrup (HFCS) from the United States – Recourse to Article 21.5 of the DSU by the United States ,
WT/DS132/AB/RW, adopted 21 November 2001, n.45.

reiterates that its Panel Request complied fully wi th all of the requirements of DSU Article 6.2,
including the requirement to “present the problem clearly.”
214. In considering US allegations that Argentina did not “present the problem clearly,” it is
important to keep one, overarching principle in mind. The United States seems to believe that Article
6.2 imposes some kind of abstract, overarching re quirement of “clarity.” The United States never
defines what this standard of “cla rity” is, or why Argentina’s request allegedly falls short. However,
the Appellate Body has stated that assessing claims under DSU Article 6.2 is by no means an abstract
exercise, or that a Panel Request must satisfy what the responding party considers to be “clear.”
215. Instead, the jurisprudence has stressed repeat edly that whether a Panel request can be
considered to “present the problem clearly” must be assessed against th e due process objective

embodied by Article 6.2. This is explained further below.
2. Argentina’s “Page Four” claims are within the Panel’s Terms of Reference
216. Argentina welcomes the belated US recognition of the well-established pr inciple that a Panel
Request must be read as a whole. Unfortunately , however, the positions advanced by the United
States in the present proceedings show anything but a holistic approach. The US arguments related to
“Page Four” of Argentina’s claims focus almost exclusively on a single word – “also.” This is exactly
the kind of narrow approach the Appellate Body has instructed Panels not to take.
217. The United States is asking this Panel to parse the text of the Panel request. It hopes that the
Panel will agree to:
• isolate and focus narrowly on the word “also”; and
• isolate and focus narrowly on Page Four.

218. Yet the jurisprudence demonstrates, quite unambi guously, that Panels considering their terms
of reference cannot sever and isolate text in this way. Instead, the Appellate Body has enjoined
Panels to take a broader approach.
219. Contrary to the assertions of the United States at the First Meeting of the Panel, Argentina’s
arguments have not “switched.” Indeed, Argentina has explained the structure of the Request
repeatedly to the United States, both at the DSB meeting of May 19, and in Argentina’s Submission
on the US Request for Preliminary Rulings. To reiterate: Argentina used the word “also” on Page
Four to indicate that it was elaborating on the previous pages. When the Panel Request is read as a
whole, this is quite obvious.
220. Even assuming arguendo that the word “also” has to be se gregated and interpreted separately
from the rest of the text, the dictionary treats the word “also” as synonymous with the term
“moreover.”
221. It is also important to emphasize the contex t in which the word “also” appeared. As
Argentina stated in Argentina’s Submission on th e US Request for Preliminary Rulings, the request
said “Argentina also considers
” that certain US laws are WTO-inconsistent, and not that Argentina
considers that “certain US laws are also WTO-inconsistent. ” The United States made no response to
this point during the First Meeting of the Panel.
222. Another important contextual point ignored by th e United States is that Argentina’s reference
to US measures in that sentence was immediately qua lified by the term “related to the determinations
of the Department and the Commission.” The “determinations of the Department and the
Commission” were described in detail earlier in the Panel request. For this reason, it is simply not

credible for the United States to argue that it is “impossible to discern the nature of Argentina’s
problems.”249
223. The United States argued at the First Meeting of the Panel that “Argentina claims to have
provided a narrative description in the first part of the panel request that remedies the deficiencies that
otherwise exist with respect to Page 4.” 250 It also stated that “this narrative is little more than a
chronology of events.”251 Argentina would make two points in response to this US assertion.
224. First, Argentina did not claim that its “narrative description . . . remedies the deficiencies” of
Page Four. Indeed, there are no “deficiencies” to “remedy.” Rather, Argentina argued that although a
narrative description is not required, panels have in some cases “considered [a narrative] description
to be relevant in determining whether a compla ining party has met the obligations covered by
Article 6.2.”252 Argentina recalled that the High Fructose Corn Syrup Panel noted that the request in
that case set forth “facts and circumstances describing the substance of the dispute,” which led the
Panel conclude that it was “sufficiently detailed to se t forth the legal basis of the complaint so as to
inform the defending Member . . . and potential third parties of the claims made by the United
States.”253 Argentina then argued, and continues to maintain, that its Panel Request similarly “set
forth facts and circumstances describing the substance of the dispute.” 254 It provided considerable
detail about the US measures being challenged, incl uding the WTO-inconsistent determinations of the
Department and the Commission.
225. Second, with respect to the US assertion that the detailed factual information set out in
Argentina’s Panel Request was “little more than a chronology of events,” Argentina would note that a
“chronology of events” is synonymous with, and serves the purpose of, “setting forth the facts and
circumstances” describing the substance of the disput e. In any event, Argentina’s Panel Request was
not, in fact, limited to a “chronology,” but rather provided full details of the entire factual and legal
background giving rise to the current dispute.
226. In any event, the United States has in no way suffered prejudice during the course of the
Panel proceedings as a result of Argentina’s drafting of Page Four. This issue is discussed below, in
section VI.C.
3. Sections B.1, B.2 And B.3 of Argentina’s claims are within the Panel’s Terms of
Reference
227. Argentina similarly provided extensive argu mentation on this is sue in Argentina’s
Submission on the US Request for Preliminary Rulings, and it stands by those arguments.
228. At the First Meeting of the Panel, the United States claimed that “Argentina does not take
issue with the findings of prior panels that citations to entire articles of the AD Agreement – including
Article 6 – can fail to satisfy the requirements of Article 6.2.”
255 Argentina fully recognizes that some
prior panels have made such rulings. However, it is of no particular relevance that prior panels have
decided that citations to entire articles “can” fail to satisfy Article 6.2. Indeed, this US statement, read
in isolation, does not convey an accurate picture of the state of WTO jurisprudence.
229. An accurate presentation of the state of the la w was set out in Argentina’s Submission on the
US Request for Preliminary Rulings, particularly paragraph 67, which noted that:

249 US First Submission, para. 87.
251 Id.
252 Argentina’s Submission on the US Request for Preliminary Rulings, para. 30.
253 Id. at para. 31.
254 Id. at para. 45.

• a request for the establishment of a panel must set out claims
, but not the arguments in support
of those claims;
• the listing of the articles of the agreements cl aimed to have been violated satisfied the
minimum requirements of Article 6.2 of the DSU;
• in assessing the consistency of the panel reques t with Article 6.2, the Panel must take into
account whether the ability of the respondent to defend itself was prejudiced, given the actual
course of the panel proceedings, by the fact th at the panel request simply listed the provisions
claimed to have been violated; and
• as a related point, even if the Article cited in the panel request contains multiple obligations,
the mere listing of such an Article will still meet the requirements of Artic le 6.2, absent actual
prejudice.

230. Argentina also demonstrated in its Submission on the US Request for Preliminary Rulings
that:
• its request for the establishment of a panel set ou t its claims with respect to Article 3 and 6 of
the Anti-Dumping Agreement, but not the arguments in support of those claims;
• the listing by Argentina of Articles 3 and 6 sa tisfied the minimum requirements of Article 6.2
of the DSU, in that both Articles were listed;
• in assessing the consistency of the Argentina’s Panel Request with Article 6.2, the Panel must
take into account whether the ability of the United States to defend itself was prejudiced, given
the actual course of the panel proceedings, by the fact that the Panel Request “simply listed”
Articles 3 and 6; and
• again, as a related point, even though Articles 3 and 6 of the Anti-Dumping Agreement contain
multiple obligations, the mere listing of these Ar ticles still meets the requirements of Article
6.2, absent actual prejudice suffered by the United States during the course of the panel
proceedings.

The latter point was demonstrated clearly by the Appellate Body decision in Korea Dairy. As
Argentina noted in its Submission on the US Request for Preliminary Rulings, in that case the
Appellate Body recognized that “Article XIX of the GATT 1994 has three sections and a total of five
paragraphs, each of which has at least one distinct obligation. Articles 2, 4, 5 and 12 of the Agreement
on Safeguards also have multiple paragraphs, most of which have at least one distinct obligation.” 256
However, the Article 6.2 request wa s nevertheless dismissed because “Korea failed to demonstrate to
us that the mere listing of the articles asserted to have been violated has prejudiced its ability to
defend itself in the course of the Panel proceedings.”257
231. Therefore, the US assertion that “entire articles of the AD Agreement . . . can fail to satisfy
the requirements of Article 6.2” simply misses the point. The fact that “entire articles” have been
cited in a panel request is by no means determina tive. What is determinative is whether actual
prejudice has been suffered by the responding party.
232. Argentina would also note that in H-Beams from Poland, references to “entire articles” of the
Anti-Dumping Agreement – in that case, Articles 2, 3 and 5 – were nevertheless found to be
consistent with DSU Article 6.2. Thailand argued that “the Panel should have dismissed Poland’s
claims relating to Articles 2, 3 and 5 because eac h of these articles of the Anti-Dumping Agreement
contains numerous, distinct obliga tions, and the request for the esta blishment of a panel submitted by

256 Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of Certain Dairy
Products, WT/DS98/AB/R, adopted 12 January 2000, para. 129 ("Korea Dairy").
257 Id. at para. 131.

Poland did not meet the standard of clarity demand ed by Article 6.2 of the DSU with respect to the
precise claims of Poland under these Articles.”258
233. In other words, Thailand advanced virtually th e same argument in that case that the United
States is advancing in the present case with respect to Argentina’s references to Articles 3 and 6 in the
present case. It is important to note that the Ap pellate Body dismissed Thailand’s request, further
demonstrating the irrelevancy of the US argument that citations to “entire claims” somehow fail the
Article 6.2 standard. Decisions such as Korea Dairy and H-Beam s from Poland provide a definitive
refutation of this argument.
234. During the First Meeting of the Panel, the United States also asserted that “Argentina’s main
argument” is that “the United States someho w knew from the consultati ons what Argentina’s
problems were.”259
235. First, this is not “Argentina’s main argument.” As indicated above, Argentina has advanced a
range of arguments to demonstrate that its refe rences to Articles 3 and 6 meet the minimum
requirements of DSU Article 6.2. These were set ou t in section IV of Argentina’s Submission on the
US Request for Preliminary Rulings.
236. Second, the characterization of Argentina’s po sition by the United States (i.e., that “the
United States somehow knew from the consultations what Argentina’s proble ms were”) is equally
misleading. Argentina’s Submission on the US Reque st for Preliminary Rulings raised a number of
more comprehensive points, which may be summarized briefly as follows:
• Argentina’s claims were first raised formally with the United States in the WTO context in
October 2002, when Argentina issued its consultations request;
• the United States expressed no concerns about the nature or scope of the Argentina’s claims
prior to, during, or after the consultations, even though all issues were canvassed thoroughly
during two sets of consultations;
• Argentina’s Panel Request used very similar – and, in some cases, virtua lly identical language
to that used in the consultations request;
• the United States, when faced with a Panel re quest, suddenly professed not to understand
Argentina’s claims; and
• this case is only one of a series of WTO “sunset ” cases which raise the same or similar issues,
in which the United States has put considerable resources into defending – claim by claim,
argument by argument, and which, as the United States has already observed, “should sound
very familiar."
260

237. All of these factors go to a broader issue: the credibility – or lack thereof - of US assertions
that it did not “understand” Argentina’s claims under Articles 3 and 6.
B. THE SO-CALLED “CERTAIN MATTERS” REFERRED TO BY THE UNITED STATES ARE ALL WITHIN
THE PANEL’S TERMS OF REFERENCE
238. Argentina’s Submission on the US Request for Preliminary Rulings provided a full rebuttal of
all of the US allegations regarding what the Unite d States considers to be “new claims.” As
Argentina demonstrated in that submission, none of these claims are “new.” All are found in the
Panel request.

258 Appellate Body Report, H-Beams from Poland, para. 82.

239. At the First Meeting of the Panel, the Unit ed States left unchallenged all but one of
Argentina’s arguments – ostensibly “in the interests of time.” The US delegation stated its hope that
limiting itself to “one example,” that would “suffi ce to demonstrate the fatal flaws in Argentina’s
arguments.”
261 However, in an Article 6.2 claim, arguing by “example” will not “suffice.” The
United States must prove all of its claims, including each of the five putative “new” claims. The
United States was simply silent in response to four of the full refutations provided by Argentina in its
Submission on the US Request for Preliminary Ru lings. The Panel can now conclude that for the
first, second, third, and fifth of the supposedly “new” claims, the United States has simply failed to
discharge the burden to prove such claims.
240. As for the fourth “new” claim, the United States did manage to muster a couple of paragraphs
in its statement in an attempt to support its position that the “as applied” claim regarding the time
period considered by the Commission was not in Argentina’s panel request. But these arguments are
simply unconvincing.
241. As stressed repeatedly in Argentina’s Submission on the US Request for Preliminary Rulings,
the Panel Request must be read as a whole. In this specific context, this means recognizing that the
language used by Argentina in Section B.3 of its Pa nel Request is part of the broader context of panel
request, particularly the heading under which it appears.
242. The specific language in Section B.3 referred to certain st atutory requirements related to the
time period within which the Commission will assess whether injury would be likely to continue or
recur. The heading to section B is “The Commission’s Sunset Determination was inconsistent with
the Anti-Dumping Agreement and the GATT 1994.” Read together – the specific language of Section
B.3 together with the more general heading of Section B – the United States was clearly put on notice
that Argentina would be raising both an “as such” and “as applied” claim.
C. THE UNITED STATES HAS IN NO WAY BEEN PREJUDICED DURING THE COURSE OF THE PANEL
PROCEEDINGS
243. The issue of prejudice is critical to the Panel’s determinations on the Article 6.2 issues. The
law of the WTO is clear: any defending party adva ncing a claim under Article 6.2 must prove actual
prejudice during the course of the Panel proceedings.
244. If the United States fails to demonstrate actual prejudice during the course of the Panel
proceedings, then its Article 6.2 claims must fail. It is as simple as that.
245. Moreover, the United States cannot argue prejudice in a global, abstract way. Instead, it must
demonstrate to the Panel the prejudice it has allegedly suffered during the course of the Panel
proceedings for each
 of its Article 6.2 claims. This is the a pproach taken by other Panels such as that
in Egypt – Steel Rebar:
[W]e requested Egypt to provide us, in resp ect of each claim that it requests us to
dismiss, the two-part analysis referred to in Korea – Dairy and EC – Bed Linen , that
is, the asserted lack of clarity in the Request for Establishment of a Panel, and
evidence of any resulting prejudice to Egypt's ability to defend its interest in this
dispute due to such lack of clarity.262
246. Evidently, the United States wishes that it did not have to prove prejudice. Indeed, during the
US closing statement on 10 December, the US delega tion stated that it did “not agree that a prejudice

261 Id. at para. 45.
262 Panel Report, Egypt – Steel Rebar, para. 7.25 (emphasis added, footnotes omitted).

requirement applies.” Nevertheless, the Panel must apply the law as it currently exists, not as the US
delegation would prefer it to be.
247. The relevant cases on prejudice have been disc ussed in Argentina’s Submission on the US
Request for Preliminary Rulings, but perhaps the state of the jurisprudence was put most succinctly by
the EC-Bed Linen panel: “an allegation that the requiremen ts of Article 6.2 of the DSU are not met
will not prevail where no prejudice is established.”263
248. Indeed, the United States itself argued this position before the Canada Wheat Board panel.
As cited earlier by Argentina, the United States argued before the Wheat Board panel that:
[E]ven if a panel request is insufficiently detailed “to present the problem clearly,” the
panel is not automatically deprived of juri sdiction over the matter. Rather, the panel
must examine, based on the “particular circumstances of the case,” whether the defect
has prejudiced the ability of the responding party to defend itself.264
249. How has the United States “demonstrated” prejudice in this case? The answer: it has not. It
has asserted, but has not proven, prejudice.
250. US arguments of “prejudice” essentially boil down to complaints about having to wait until
receipt of Argentina’s submission. This demonstrably does not rise to the level of a violation of the
due process rights of the United States. Indeed, in previous cases, similar assertions by defending
parties were rejected by panels as insufficient for the purposes of demonstrating prejudice under
Article 6.2. This is illustrated below.
251. A recent demonstration of this was provided by the panel in EC – Pipe Fittings:
[T]he European Communities has failed in any event to demonstrate to us any
prejudice to its interests throughout the course of these Panel proceedings by the way
these "claims" appeared in the Panel request. We asked the European Communities to
indicate any prejudice that it had sustained. The European Communities responded
as follows:
The EC takes the view that in all the cases in which it has raised this
objection its interests have been prejudiced by the lack of adequate
notice of the issues. The scope of the claims that are explicitly made
in Brazil’s panel request is already exceptionally broad. The EC is
entitled to the period that elapses between the establishment of the
panel and the presentation of the complainant’s first written
Submission to prepare its defence. Such preparation is only possible
if the complainant adequately specifies its claims in its panel request
for incorporation into the terms of reference.
However, it was evident to us from the pa rticipation of the European Communities in
asserting its views in various phases of thes e Panel proceedings, including in its first
written submission and in the first Panel meeting and in the exchanges between the
parties preceding the first Panel meeting on preliminary issues, that the EC's ability to
defend itself had not been prejudiced over the course of these Panel proceedings.

263 Panel Report, European Communities - Anti-Dumping Duties on Imports Of Cotton-Type Bed Linen
from India, WT/DS141/R, adopted 12 March 2001, para. 6.25 (emphasis added).
264 Oral Statement of the United States at the First Panel Meeting, Canada – Measures Relating to
Exports of Wheat and Treatment of Imported Grain, WT/DS276 (6 June 2003), paras. 6-8.

We therefore consider that the text of th e Panel request adequately indicates the
nature of the problem addressed by Brazil's claims and deny the EC request to
dismiss these allegations made by Brazil.
265
252. Similar complaints about “having to wait” were equally unavailing in High Fructose Corn
Syrup:
Mexico asserts that it had to wait until the first written submission of the United
States, more than four months after the request for establishment, to have a clear idea
of what the United States' arguments in support of its assertions were. Mexico argues
that as a result of the failure of the United States to present the problem clearly and
specify the factual and legal basis for the request, it was obliged to spend that time
working "in the dark". In its comments on interim review, Mexico asserts that this
resulted in the expenditure or squandering of resources that could otherwise have
been devoted to preparing a timely defence.266
253. At the First Meeting of the Panel, the Panel similarly found that this assertion did not rise to
the level of prejudice required under DSU Article 6.2: “We find that Mexico has not demonstrated to
us that it was prejudiced in its ability to defend its interests in the course of the proceedings in this
dispute.”267
254. The US assertions of “prejudice” in this case are strikingly similar to those found to be
insufficient in cases such as EC – Pipe Fittings and High Fructose Corn Syrup . As noted in
Argentina’s Submission on the US Request for Prel iminary Rulings, for the “Page Four” claims, the
United States argued only that its “ability . . . to begin preparing its defence was delayed because, due
to Argentina’s failure to comply with Article 6.2, the United States did not ‘know what case it has to
answer.’”268 For its challenge to Sections B.1, B.2 and B.3, the US First Submission stated that: “As
in the case of Page 4 of Argentina’s panel reques t, the United States’ ability to begin preparing its
defence has been impaired because, as a result of Ar gentina’s failure to comply with Article 6.2, the
United States did not ‘know what case it has to answer.’”269
255. This is an exceedingly thin argument. It by no means constitutes a proven violation of “due
process rights.” The Panels in EC - Pipe Fittings and High Fructose Corn Syrup did not take
seriously such unsubstantiated assertions of “prejudice,” and dismissed the Article 6.2 requests. This
Panel should follow the prudent course set by these earlier panels and similarly reject the US request.
256. It is also highly relevant to note that earlier Panels, in determining whether the wording of the
Panel Request caused “prejudice,” have assessed whether there was any prejudice to the interests of
Third Parties. This was set out in paragraphs 61 and 62 of Argentina’s Submission on the US Request
for Preliminary Rulings.
257. In the present case, none of the Third Parties expressed any concerns about the alleged “lack
of clarity” of Argentina’s Panel Request – not in the DSB, and not before the Panel.
258. To the contrary, many of the Third Parties specifically disavowed any difficulties with
Argentina’s Panel Request:

265 Panel Report, European Communities – Anti-Dumping Duties on Malleable Cast Iron Tube or Pipe
Fittings from Brazil, WT/DS219/R, adopted 18 August 2003, paras. 7.22-7.24 (“ EC - Pipe Fittings ”). The EC
did not appeal this issue.
266 Panel Report, Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the
United States, WT/DS132/R, adopted 24 February 2000, para 7.16 (“High Fructose Corn Syrup”).
267 Id. (emphasis added).
268 US First Submission, paras. 97 and 110 (emphasis added).

• the EC stated that the “Panel should not follow the United States suggestion to consider page 4
. . . in isolation from the rest of the reques t. Rather, in order to establish whether the
conditions of Article 6.2 DSU are met, the Pane l should consider the request as a whole.” 270
At the Third Party session, the EC reaffirmed th at “the Panel should assess Argentina’s Panel
Request as a whole, and not one specific part of it in isolation from the rest.”271
• Japan informed the Panel that it “had no pa rticular problem with the panel request of
Argentina when drafting our third party submission.”272
• The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu stated that “we did not
encounter any difficulties related to DSU Article 6.2 in preparing our third party submission
and oral statement.”273
• Mexico used even stronger language, advising the Panel that “el gobierno de Mexico considera
adicional para atender a dichas objeciones, México solicita respetuosamente que se respeten

259. This leaves the United States alone among WTO Members which ostensibly could not
“understand” the nature of Argentina’s complaints be cause of the alleged “lack of clarity.” With no
support among the Third Parties, the United States wa s reduced to arguing at the First Meeting of the
Panel that the wording of Argentina’s Panel Reques t prejudiced “potential” third parties. The Panel
need not detain itself on this line of argumentati on. No other Panel in the history of the WTO has
ever considered anything as remote as prejudice to “potential” third parties.
260. Moreover, the US assertions of “prejudice” have been amply contradicted by the conduct of
the United States to date in these proceedings. The United States submitted a full, substantive (albeit
unconvincing) submission responding to Argentina’s claims and it participated actively in the hearing.
It will, no doubt, file a similarly detailed second submission, along with responses to the Panel’s
questions. Indeed, this kind of active participation at all stages of the panel process was the basis for
the rejection of similar Article 6.2 requests in Panels such as EC – Bed Linens (quoted above) and US
– Lamb Safeguards.275
261. Finally, to reiterate a point Argentina has made earlier, and as the Canada Aircraft Panel
made clear, it is not possible to assess the supposed prejudice to the United States “during the panel
process” until the end of the panel process.276

270 Third Party Submission of the European Communities, Section 2.
271 Third Participant’s Oral Statement by the European Communities, WT/DS268, 10 December 2003,
para. 3.
272 First Third Party Oral Statement by Japan, WT/DS268, 10 December 2003, para. 2.
273 First Third Party Oral Statement by the Separate Customs Territory of Taiwan, Penghu, Kinmen and
Matsu, WT/DS268, 10 December 2003, page 3.
274 First Third Party Oral Statement by Mexico, WT/DS268, 10 December 2003, at 2. The English
translation of this quotation is as follows: “The Government of Mexico considers that the referenced panel
request complies completely with DSU Article 6.2, and that [the Preliminary Objections] represent a delaying
tactic by the Government of the United States to delay the substantive analysis by this Panel. In the event that
the Panel decides to carry out an additional proceeding to consider the referenced objections, Mexico
respectfully requests that its rights as a Third Party in this case be respected.”
275 Panel Report, United States – Safeguard Measures on Imports of Fresh, Chilled or Frozen Lamb
Meat from New Zealand and Australia, WT/DS177, 178/R, adopted 16 May 2001, paras. 5.51-5.53.
276 Panel Report, Canada – Measures Affecting the Export of Civilian Aircraft , WT/DS70/R, adopted
20 August 1999, para. 9.33 (emphasis added).

D. C
ONCLUSIONS
262. Successful applications under DSU Article 6. 2 are very rare in WTO dispute settlement.
There is good reason for this: the Appellate Body has set the standard very high for a request under
DSU Article 6.2 to be granted.
263. As noted above, there is no ab stract standard of “clarity” under DSU Article 6.2. A Panel
cannot strike claims from a Panel Request because the language used somehow displeases the
responding party, or the responding party would have preferred different wording. A Panel can strike
claims from a Panel Request only where it concludes that the due process rights
 of the respondent
have been violated.
264. The respondent party must prove that it has suffered actual prejudice during the course of the
Panel proceedings as a result of the wording of the panel requests. Vague assertions by the
responding party that it had to wait for the complainan t’s first submission clearly will not suffice, and
have been emphatically rejected by prior panels.
265. This is particularly the case where, as here, th e United States has filed a full reply to all of
Argentina’s claims. Assertions of “prejudice” by the United States are simply not credible.
266. However, Argentina would emphasize that its defe nce to the Article 6.2 claims of the United
States by no means rests on the “no prejudice” point alone. To the contrary, Argentina has
demonstrated, both in its Submission on the US Request for Preliminary Rulings and in this
Submission, that the wording of its claims were entirely clear – a point on which the Third Parties
agree.
267. To apply what the Appellate Body said in Korea Dairy, it is unquestionable that the United
States “had not been misled as to what claims were in fact being asserted against it as respondent.”277
268. Argentina therefore respectfully requests the Panel to dismiss the US preliminary requests and
to adjudicate Argentina’s substantive claims entirely on the merits.
VII. CONCLUSION
269. Argentina refers the Panel to the specific requ ests it made of the Panel as set forth in
paragraphs 314-323 of Argentina’s First Submission. Argentina incorporates those requests in full.
In sum, Argentina respectfully requests the Panel:
• to find that in this case the US measures identified by Argentina, as such and as applied,
violate US WTO obligations;
• to recommend that the United States brings its measures found to be inconsistent with the
covered agreements into conformity with its WTO obligations; and
• to suggest, pursuant to DSU Article 19.1, that the only way for the United States to comply
with these recommendations is through the immediate termination of the anti-dumping
measure on OCTG from Argentina.

270. As Argentina’s First and Second Submissions demonstrate, the Department’s and the
Commission’s sunset determinations violate US obligations under Article 11.3.
271. In December, the Appellate Body reaffirmed th at termination of an anti-dumping duty is the
primary obligation of Article 11.3, that it is a “ma ndatory rule,” that continuation of the duty is the
exception to this rule, and that this exception may be invoked only when the specified conditions for

277 Appellate Body Report, Korea Dairy, para. 123 ("Korea Dairy").

continuing the duty are satis fied, and that “[i]f any one of these conditions is not satisfied, the duty
must be terminated.”278
272. With respect to the likelihood of dumping determination, the United States has developed
three different procedures to impl ement its Article 11.3 obligation, each depending on the perceived
level of participation in the process. In the end, it does not matter which procedure the United States
uses. Regardless of the procedural route, the De partment applies mandatory criteria which prevent
precisely the type of factual and legal review th at Article 11.3 requires in order to invoke the
exception to termination. The Appellate Body leaves no doubt that “authorities must conduct a
rigorous examination in a sunset review before the exception (namely, the continuation of the duty)
can apply.” 279 The Appellate Body emphasized “the exacting nature of the obligations imposed on
authorities under Article 11.3 . . . .” 280
273. Rather than satisfy the “exacting” obligations of Article 11.3, the Department gives decisive
and preponderant weight to the existence of dump ing margins and to declin es in import volume.
Indeed, in discussing these very factors from the Sunset Policy Bulletin , the Appellate Body stated
that the issue was “whether Section II.A.3 goes further and instructs USDOC to attach decisive or
preponderant weight to these two factors in every case.”
 281 Argentina’s Exhibits ARG-63 and ARG-
64 demonstrate that, in fact, the Department give s “decisive and preponderant” weight to these two
factors in every single case in which the domestic industry participated. Indeed, the US authorities’
failure to satisfy Article 11.3 obliga tions can be seen plainly in this case, and in all the other cases in
which the US industry has expressed an interest. There is no substantive analysis with respect to the
likelihood of dumping determination – let alone a “rigorous examination.” There is no positive
evidence from which to infer likely behaviour. In the end, there is neither the “review” nor
“determination” required by Article 11.3. As the Ap pellate Body explained, “[p]rovisions that create
‘irrebuttable’ presumptions, or ‘predetermine’ a particular resu lt, run the risk of being found
inconsistent with this type of obligation.”282
274. The 1.36 per cent margin from the original investigation – calculated on the basis of zeroing –
and the decline in import volumes are an insufficient basis for the Department’s determination that
dumping would be likely to continue. The Appella te Body spoke directly to reliance on zeroing and
explained that such reliance would “taint” the like lihood determination under Article 11.3, and could
not constitute the proper foundation for the likelihood determination.
283
275. With respect to the likelihood of injury dete rmination, the Commission fails to apply the
correct legal standard – a “likely” standard. The Commission’s determination in this case rests on the
notion that, because there was a finding of injury in th e original investigation, so it must be that injury
is “likely” to continue or recur in the event of term ination. This case is a clear example of the varied
uses of “possible” scenarios to support a finding of “likely” injury.
276. In its closing statement at the First Substantive Meeting, the United States warned of the
dangers of creating additional obli gations through dispute settlement. Such an approach, the United
States admonished, would violate the rule in DSU Article 3.2 that panel rulings cannot add to the
Members’ obligations. Argentina does not disagree, but notes that the United States focuses on only
half of the story. The very same sentence refe rred to by the United States also stands for the
proposition that “rulings of the DSB cannot . . . diminish the rights . . . provided in the covered

278 Appellate Body Report, Sunset Review of Steel from Japan, para. 104.
279 Id. at para. 113.
280 Id.
281 Id. at para. 176.
282 Id. at para. 191.
283 Id. at para. 130.

agreements.”
284 The Appellate Body has contributed importantly to clarifying the meaning of the
rights and obligations comprised in Article 11.3. Ar gentina 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 Articles 11.3, 2, 3, 6, and 12 of the Anti-Dumping Agreement. This, the United States
did not do, and as a result, the DSB must restore the right conferred to Argentina under Article 11.3,
which is termination of the measure.

284 See Argentina’s First Submission, para. 8.

I. INTRODUCTION
1. Given the comprehensive nature of the Pa nel’s questions regarding the Department of
Commerce’s ("Commerce") sunset review procedures, the United States will use this submission to
place Argentina’s claims regarding those proce dures (1) within the perspective of the WTO
agreements regarding sunset reviews; (2) in the co ntext in which sunset reviews are conducted in the
United States; (3) in terms of the actual sunset revi ew procedures, in particular, the decision whether
to expedite; and (4) in terms of this particular s unset review. In so doing, the United States will
reconfirm that, no matter how they are analyzed, Argentina’s as such
 and as applied claims regarding
those procedures are baseless.

2. Because these claims are baseless, Argentina has sought to colour the proceedings by alleging
a series of "irrefutable presumpti ons" in US sunset review law. As this submission will make clear,
Commerce provides ample opportunity for parties to "refute" evidence on the record and findings
made in the course of the sunset review. A party’s failure to attempt to refute a finding does not make
that finding irrefutable; it simply means the party ha s not availed itself of the opportunity to present
facts and arguments. Article 11.3 of the Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994 ("Anti-Dumping Agreement") do es not prescribe specific
methodologies with respect to sunset reviews; instea d, it requires Members to afford interested parties
the full opportunity for a defence of their interests.
1 US sunset review law complies with this
requirement.

3. The general tenor of Argentina’s position with respect to Commerce’s determination in this
particular sunset review is that the review was conducted unfairly because Siderca was the "only
exporter" of OCTG during the original investigatio n, yet Commerce found that Siderca did not meet
the 50 per cent threshold normally used to assess whether to conduct an expedited or full sunset
review.
2 Notwithstanding the significant fact that Siderca ignored more than one opportunity to
suggest a different outcome, the United States notes that there is a second Argentine exporter of
OCTG to the United States; this exporter did not respond to the notice of initiation.3

4. The United States is concerned that if the Panel adopts Argentina’s arguments, it will create
an incentive for respondent interested parties to pa rticipate minimally, if at all, in sunset review
proceedings. According to Argen tina’s arguments, respondent interested parties should be permitted
to refuse to participate fully in a sunset review, an d then later have a WTO panel find that the results
of that review are not consistent with WTO obligations. The United States does not believe that the
Anti-Dumping Agreement permits respondent interest ed parties to bootstrap investigating authorities
into revoking orders by participating minimally, if at all, in the proceedings. Indeed, the Appellate
Body in Japan Sunset has made specific reference to the "pro minent role" of interested parties in
sunset reviews because they often have the "best evidence" of their likely future pricing behaviour.4

 1 See e.g., United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel
Flat Products from Japan , WT/DS244/AB/R, Report of the Appellate Body, circulated 15 December 2003
("Japan Sunset"), para. 123.
 2 First Written Submission of Argentina, para. 151.
 3 The United States notes the care with which Siderca described itself in its substantive response to the
initiation of the sunset proceedings: "Siderca is the only producer of seamless OCTG in Argentina. To Siderca’s
knowledge, there is no other producer of OCTG in Argentina." Substantive Response of Siderca to the
Department’s Initiation of Sunset Review of the AD Order on OCTG from Argentina (2 August 2000) at 3
(emphasis added). (Exhibit ARG-57.) Siderca carefully qualified the latter statement, and only the latter
statement. The United States understands Acindar, the other Argentine producer, to manufacture welded
OCTG, rather than seamless OCTG.

4 Japan Sunset, para. 199.

5. The United States believes that the facts and argument presented in this proceeding confirm
that Commerce makes appropriate procedures available to respondent interested parties so that they
may defend their interests in sunset review proceedings. This submission will provide the following
in support thereof: A review of the Appellate Body’s pertinent findings in Japan Sunset; an overview
of US law governing Commerce’s conduct of sunset reviews; a demonstration that the law is
consistent with the Anti-Dumping Agreement; and a discussion of respondent interested parties’
participation in the part of the review relating to the determination of likelihood of dumping.

6. This submission also addresses the determina tion by the US International Trade Commission
("ITC") that revocation of the duties would be likely to lead to continuation or recurrence of injury.
Specifically, the submission responds to arguments ma de by Argentina in its oral statement at the
Panel’s first meeting and to certain points raised by third parties in their written submission and oral
statements regarding the ITC’s injury determination.

II. REVIEW OF KEY APPELLATE BODY FINDINGS IN JAPAN SUNSET
7. In Japan Sunset, various aspects of the US sunset review regime were challenged, requiring
the Appellate Body to examine the nature of the obligations arising from Article 11.3 of the Anti-
Dumping Agreement. By closely reviewing the language of Article 11.3 and comparing it with
language in other provisions of the Agreement, in cluding Article 11.2, the Appellate Body concluded
that "Article 11.3 does not prescribe any partic ular methodology to be used by investigating
authorities in making a likelihood de termination in a sunset review;" 5 "WTO Members are free to
structure their anti-dumping systems as they chose, provided that those systems do not conflict with
the provisions of the Anti-Dumping Agreement."6 Furthermore:

Article 11.3 does not expressly state that i nvestigating authorities must determine that
the expiry of the duty would be likely to lead to dumping by each known exporter or
producer concerned. In fact, Article 11.3 contains no express reference to individual
exporters, producers, or interested parties . . . . We also note that Article 11.3 does
not contain the word ‘margins’ . . . .7
The Appellate Body thus confirmed that a sunset review is fundamentally different from both
an original investigation and an administrative review.

8. Based on this assessment, the Appellate Body al so concluded that in a sunset review there is
no "obligation for investigating authorities to make their likelihood determination on a
company-specific basis." 8 The Appellate Body therefore upheld the right of the United States to
conduct sunset reviews on an order-wide basis.

9. The Appellate Body further confirmed the signifi cant role that respondent interested parties
play in sunset review proceedings, an issue that is at the heart of this particular dispute. Indeed,

the Anti-Dumping Agreement assigns a promin ent role to interested parties as well
and contemplates that they will be a primar y source of information in all proceedings
conducted under the Agreement. Company-sp ecific data relevant to a likelihood
determination under Article 11.3 can often only be provided only by the companies
themselves. For example, as the United States points out, it is the exporters or

 5 Japan Sunset, para. 149.
 6 Japan Sunset, para. 158.
 7 Japan Sunset, para. 149.
 8 Japan Sunset, para. 155.

producers themselves who often possess the best evidence of their likely future
pricing behaviour – a key element in the likelihood of future dumping.
9
10. Similarly, the Appellate Body recognized the importance of the administrative review
process, which provides parties with the opportunity to request revocation of an anti-dumping duty
order with respect to a particular exporter or producer.10

11. Because of a direct reference in Article 11.4, the Appellate Body concluded that the
provisions of Article 6 regarding evidence and procedure apply to sunset review proceedings, a
position with which the United States has agreed. Accordingly, "Article 6 requires all interested
parties to have a full opportun ity to defend their interests." 11 Bearing in mind that it is Argentina’s
burden to prove that the US sunset review proceedings do not comply with Article 6, the United
States will nevertheless demonstrate that its sunset review proceedings provide a full opportunity for
interested parties to defend their interests.

III. OVERVIEW OF COMMERCE'S EXPEDITED SUNSET PROCEDURES
12. Prior to delving into the specific sunset re view procedures of the United States, it bears
repeating that a sunset review occurs only after affirmative determinations of dumping and injury
have been made. Moreover, individual companies are provided the opportunity to have orders
revoked in part, i.e., with respect to that individual company, prior to the initiation of a sunset
proceeding.

A. T
HE AVAILABILITY OF REVOCATION PROCEDURES PRIOR TO INITIATION OF A SUNSET REVIEW
13. Specifically, revocation for a particular company from an anti-dumping duty order is possible
by two methods under US law (revocations of anti-du mping duty orders, in part, are generally termed
"company-specific" revocations in US parlance). The first and most common method is for a
producer or exporter to seek revocation pursuant to section 351.222(b)(2) of Commerce’s
Regulations, i.e., after three annual administrative reviews wh erein Commerce has calculated, in each
review, a dumping margin of zero or de minimis for the producer or exporter seeking revocation.

14. The second method for a producer or exporter seeking revocation is the "changed
circumstances" review.12 Under this method, a producer or e xporter may request a review at any time
after providing information that changed circum stances warrant a review for the purposes of
revocation of an anti-dumping duty order.

15. Thus, a producer or exporter may seek revocation for itself from an anti-dumping duty order
prior to the initiation of a sunset review. The Appellate Body in Japan Sunset recognized the
importance of the availability of these procedures in ensuring that an anti-dumping duty remain in
force only so long as and to the extent necessary to counteract dumping which is causing injury.
13 In
this context, the United States co nducts its sunset reviews on an order-wide, rather than company-
specific, basis.

B. THE DECISION TO EXPEDITE
16. With regard to sunset reviews themselves, Co mmerce will conduct either an expedited or a
full review. The decision whether to conduct an expedited or full sunset review is based on a two-part

 9 Japan Sunset, para. 199.
 10 Japan Sunset, para. 158.
 11 Japan Sunset, para. 152.
 12 Section 751(b) of the Tariff Act of 1930 (Exhibit ARG-1), codified at 19 C.F.R. § 351.216.
 13 Japan Sunset, para. 199.

procedure: (1) Solicitation and evaluation of indi vidual substantive responses (including waivers);
and (2) Assessment of the adequacy of the aggregate response.

1. Solicitation and evaluation of substantive responses
17. In its notice of initiation, Commerce solicits su bstantive responses from respondent interested
parties. These responses are due not later than 30 days after publication of the notice of initiation.
14

18. Commerce examines each substantive response submitted by a domestic or respondent
interested party to assess whether it is complete, i.e., whether it contains the information specified in
the regulations.15 A "complete" substantive response normally must contain the limited information
required by section 351(d)(3)(ii) of the Sunset Regulations.

19. In terms of responses, section 751(c)(4)(A) of the Tariff Act of 1930 ("the Act") specifically
provides a respondent interested party with an op portunity to affirmatively "waive" participation in
the Commerce proceeding thereby affording the re spondent interested party the opportunity to
concentrate its resources on addressing the ITC’s determination of likelihood of the continuation or
recurrence of injury. 16 In addition, section 351.218(d)(2)(iii) of the Sunset Regulations provides that
Commerce will consider a failure by a respondent in terested party to submit a complete substantive
response, whether based on no submission or submissi on of an incomplete response, as a waiver of
that party’s participation in Commerce’s sunset review.17

20. Consequently, each Commerce determination co ncerning the completeness of the substantive
response filed by the respondent interested party would be based on one of three sets of
circumstances: (1) no submission of a substantive response based on an affirmative "waiver"
statement by the respondent interested party that it did not wish to participate in Commerce’s sunset
proceeding; (2) a finding that the respondent interested party is "deemed" to have waived its right to
participate based on the submission of an incomplete substantive response or the failure of the party to
submit any substantive response; and (3) a finding that the respondent interested party submitted a
complete substantive response.

21. In the first two circumstances, Commerce would make a finding that the failure to submit any
substantive response or to submit an incomplete substantive response constitutes an incomplete
substantive response from the particular respondent interested party who failed to submit a substantive
response or who submitted an incomplete substant ive response. When Commerce determines that a
respondent interested party has waived its right to participate, Commerce is directed by
section 751(c)(4)(B) of the Act to make an affi rmative finding of likelihood of continuation or
recurrence of dumping for that respondent interested party.
18 This is not a determination of likelihood
for the entire order.

 14 19 C.F.R. 351.218(d)(3)(i) (Exhibit ARG-3).
 15 See 19 C.F.R. 351.218(e) (Exhibit ARG-3) and Preamble, 63 Fed. Reg. at 13518 (Exhibit US-3).
 16 See 19 U.S.C. 1677(c)(4)(A) & (B); SAA at 880 (E xhibit US-11); and 19 C.F.R. 351.218(d)(2)(i) &
(ii) (requirements for notice of waiver) (Exhibit ARG-3).
 17 19 C.F.R. 351.218(d)(2)(iii) ("deemed waiver") (Exhibit ARG-3).
 18 See section 751(c)(4)(B) of the Act, providing that the affirmative likelihood determination resulting
from the waiver described in section 751(c)(4)(A) only applies "with respect to that party." 19 U.S.C. §
1675(c)(4)(B) (Exhibit ARG-1); see also, SAA at 881 ("If Commerce receives such a waiver, Commerce will
conclude that revocation or termination would be likely to lead to continuation or recurrence of dumping or
countervailable subsidies with respect to that submitter.") (emphasis added) (Exhibit US-11).

2. Assessment of adequacy
22. Once Commerce has determined which responde nt interested parties have filed complete
substantive responses, Commerce will then normally evaluate whether the aggregate response to the
notice of initiation, by the respond ent interested parties who filed co mplete substantive responses, is
"adequate."
19 The so-called 50 per cent threshold, provided in section 351.218(e)(1)(ii)(A) of the
Sunset Regulations, is normally used to make this aggregate adequacy determination.20

23. In order to determine the adequacy of the aggregate response to the notice of initiation,
Commerce sums, for the five years preceding the s unset review, the export volumes of the subject
merchandise of all the respondent interested partie s who filed complete subs tantive responses to the
notice of initiation. If the export volumes represen ted by the respondent inte rested parties, in the
aggregate, are more than 50 per cent of the total exports of the subject merchandise during the five
year period, Commerce will normally find that the aggregate response to the notice of initiation is
"adequate" and will conduct a full sunset review. If the export volumes represented by the respondent
interested parties, in the aggregat e, are not more than 50 per cent of the total exports of the subject
merchandise during the five year period, Commerce will normally find that the aggregate response to
the notice of initiation is "inadequate" and will conduct an expedited sunset review (although
Commerce has made exceptions, as discussed in the US response to question 1 of the Panel).

C. R
ECORD EVIDENCE IN AN EXPEDITED SUNSET REVIEW
24. Section 751(c)(3)(B) of the Act states that where interested parties collectively provide an
inadequate response to a notice of initiation, Commer ce may issue, without further investigation, a
final determination based on the facts available. 21 It should be noted that in this context, the facts
available include information provided in complete and incomplete substantive responses, as well as
prior determinations. 22 Contrary to Argentina’s assertion, facts available in this context is not a
"euphemism for adverse inferences" 23 under section 351.308(f), applicable to sunset reviews.
Interested parties who submitted complete substant ive responses are afford ed an opportunity to
submit comments on Commerce’s adequacy determination pursuant to section 351.309(e) of the
Sunset Regulations . After consideration of these intere sted party comments on the adequacy
determination, if Commerce still finds that the aggr egate response to the notice of initiation is not
more than 50 per cent of the total imports, then Commerce normally will conduct an expedited sunset

 19 See Sunset Policy Bulletin, 63 Fed. Reg. at 18872 (Exhibit ARG-35). An "adequate" number of
substantive responses normally is required, because Commerce makes its likelihood determination on an
order-wide basis.
 20 Section 751(c)(3) of the Act leaves to Commerce’s discretion the choice of methodology for
determining when the response from interested parties to the notice of initiation is "adequate" for the purposes
of conducting a full sunset review. See SAA at 880 (in many cases, some but not all parties will respond;
nevertheless, where parties demonstrate a "sufficient willingness to participate," the agency will conduct a full
sunset review) (Exhibit US-11). Consequently, Comm erce promulgated section 351.218(e)(1)(ii) of the Sunset
Regulations to codify the 50 per cent threshold test and to give effect to section 751(c)(3) of the Act. See
Preamble, 63 Fed. Reg. at 13518. (Exhibit US-3).

21 The SAA in discussing section 751(c)(3) states that this provision "is intended to eliminate needless
reviews. This section will promote administrative efficiency and ease the burden on agencies by eliminating
needless reviews while meeting the requirements of the [Anti-Dumping and SCM] Agreements. If parties
provide no or inadequate information in response to a notice of initiation, it is reasonable to conclude that they
would not provide adequate information if the agencies conducted a full-fledged review. However, where there
is sufficient willingness to participate and adequate indication that parties will submit information requested
throughout the proceeding, the agencies will conduct a full review." SAA, at 880 (Exhibit US-11).

22 Section 351.308(f)(2)(Exhibit US-27 ).

review and base the final sunset determination on the facts available in accordance with section
751(c)(3)(B) of the Act.24

25. In making the order-wide final sunset de termination in an expedited sunset review,
Commerce will rely on all information on the admi nistrative record of the sunset proceeding,
including information in the substantive responses and rebuttal responses of the domestic interested
parties, prior agency determinati ons, as well as the information su bmitted by respondent interested
parties in their substan tive and rebuttal responses. 25 Commerce normally will not accept additional
submissions from any interested party, whether dome stic or respondent, after that interested party’s
substantive submission is found to be in complete. Neverthele ss, any information submitted by an
interested party in its substantive response is considered by Commerce when Commerce makes the
final determination in an expedited sunset review, even in a case where the particular substantive
response was found to be incomplete.26

26. At the conclusion of the sunset review, Commerce publishes the Final Sunset Determination,
announcing the final likelihood determination, and issues a Decision Memorandum explaining the
issues decided in the sunset review (including the likelihood determination), the methodologies
employed, and factual bases supporting the final determination.

IV. ARGENTINA HAS NOT MET ITS BURDEN OF DEMONSTRATING THAT
COMMERCE'S SUNSET REVIEW PROCEDURES ARE INCONSISTENT WITH
ARTICLE 11.3 AND ARTICLE 6
27. WTO Members are free to structure their sunset reviews as they choose, provided the reviews
do not conflict with the Anti-Dumping Agreement.
27 Argentina bears the burden of proving that
Commerce’s sunset review procedures conflict with the Anti-Dumping Agreement.

28. In this dispute, Argentina claims that Co mmerce’s expedited "waiver" procedures violate
Article 11.3 because a "waiver" mandates a finding of dumping through the application of "facts
available."
28 Not only does Article 11.3 state nothing about findings and facts available, but
Argentina’s claim is essentially a simple mischaracterization of the procedures themselves. In
addition, Argentina has not demonstrated that Commerce’s expedited procedures mandate a finding of
likely dumping simply because section 751(c)(3)(B) of the Act and section 351.308 of the Sunset
Regulations provide that Commerce normally may rely on the "facts available" when making the final
sunset determination in cases where the respondent interested parties do not demonstrate sufficient
interest in participating in the sunset review. Sec tion 351.308(f) clearly defines "the facts available"
as prior agency determinations, the information subm itted by the interested parties (notwithstanding
whether their submissions were "complete"), and an y other information on the administrative record.
As demonstrated above, there is no negative inference to be associated with the use of the term "facts
available" in this context. It simply defines all the information on the record and provides that the

 24 Section 351.218(e)(1)(ii)(C)(2) of the Sunset Regulations provides that Commerce may base its final
sunset determination on "the facts available" without further investigation in a case where the aggregate
respondent interested parties is inadequate or Commerce may exercise its discretion and conduct further
investigation. The decision whether to conduct further investigation in an expedited sunset review is left to
Commerce’s discretion. See SAA at 879-880 (Exhibit US-11).

25 See section 351.308(f)(1) of the Sunset Regulations (definition of "the fa cts available") (Exhibit
US-27). If a respondent interested party submitted a statement of waiver or was deemed to have waived due to
its failure to submit any substantive response to the notice of initiation, then, obviously, there would be no
information from that respondent interested party for Commerce to consider in making the final sunset
determination.

26 See section 351.308(f)(2) of the Sunset Regulations (Exhibit US-27).
 27 Japan Sunset, para. 158.

final sunset determination in an expedited review wi ll be made on the basis of all the information on
the administrative record of that review. Section 751(c)(3)(B) of the Act and section 351.218 of the
Sunset Regulations require that the sunset de termination be made using all the information on the
administrative record.

29. Argentina has also claimed that the expedited sunset procedures violate the obligations in
Articles 6.1 and 6.2 of the Anti- Dumping Agreement. In this regard, Argentina has made no
demonstration that the expedited procedures, as such, preclude interested parties from submitting
evidence or having a full opportunity to defend their interests.
29 Instead, as illustrated above, the
expedited sunset procedures provide interested parties with the opportunity to submit a substantive
response containing any information the party wishes Commerce to consider, to submit a rebuttal
substantive response, to submit comments on Commerce’s adequacy determination, and to request
extension of deadlines for the submission of factual information. Consequently, Argentina has not
shown how the expedited sunset procedures preclu de any interested party from having a full
opportunity to defend its interests. The United States notes that Members are merely required to offer
respondent interested parties the opportunity to defend their interests; the United States is not required
to ensure that respondent interested parties take advantage of that opportunity.

30. Simply put, Argentina has not met its burden of demonstrating how the expedited sunset
procedures, as such, preclude WTO-consistent action or mandate WTO-inconsistent action.

V. ARGENTINE RESPONDENT INTERESTED PARTIES DID NOT TAKE
ADVANTAGE OF THE FULL OPPORTUNITY TO DEFEND THEIR INTERESTS
31. Because Article 11.3 does not prescribe detailed criteria for conducting sunset reviews, but
rather sets forth minimal obligations with respect to evidence and procedure, the question in this
dispute essentially is whether Arg entina has demonstrated that Commerce did not provide respondent
interested parties the opportunity to participate in the review and present evidence. A review of the
proceedings will reveal that the re spondent interested parties simply failed to take advantage of the
opportunities available to them.

A. R
EVIEW OF RESPONDENT INTERESTED PARTIES ' OPPORTUNITIES TO SUBMIT FACT AND
ARGUMENT IN THESE PROCEEDINGS
32. On 3 July 2000, Commerce published its notice of initiation of the sunset review of the anti-
dumping duty order on certain OCTG from Argentina. 30 In the notice, Commerce, as is its normal
practice, highlighted the deadline for filing a s ubstantive response in the sunset review and the
information that was required to be contained in the response. 31 Commerce also explicitly referred
parties to the applicable regulation concerni ng requests for an extension of filing deadlines. 32 On
2 August 2000, a domestic interested party filed a response to the notice of initiation providing, inter
alia, statistics indicating imports of Argentine OCTG during the period of review. That same day,
Siderca filed a substantive response in which it stated that it had "no share of total exports of subject

 29 See, e.g., Argentina's Oral Statement, para. 48.
 30 Initiation of Five-Year ("Sunset") Reviews of Anti-Dumping and Countervailing Duty Orders or
Investigations of Oil Country Tubular Goods ("Sunset Initiation"), 65 FR 41053, 41054 (3 July 2000) (Exhibit
ARG-44).
 31 Sunset Initiation . The information requirements concerning substantive responses to notices of
initiation of sunset reviews are set forth at 19 C.F.R. 351.218(d)(3) (Exhibit ARG-3).
 32 Sunset Initiation. 19 C.F.R. 351.302(c) provides that a party may request an extension of a specific
time limit. 19 C.F.R. 351.302(b) provides that unless expressly precluded by statute, Commerce may, for good
cause, extend any time limit established by its regulations. The US anti-dumping duty statute does not contain
deadlines for submission of information in a sunset review (Exhibit US-3).

merchandise" during the period of review. 33 Siderca did not file a rebuttal submission, as it was
entitled to do.34 Therefore, Siderca permitted the record to indicate that there were imports of subject
merchandise, for which cash deposits were paid purs uant to the anti-dumping order, and that Siderca,
the lone respondent interested party that filed a su bmission, did not account for 50 per cent of those
imports. Siderca did so even though the regulations clearly provide that under such circumstances,
Commerce will "normally" expedite the review.

33. Siderca’s failure to seize its opportunities continued. On 22 August 2000, Commerce issued
an Adequacy Memorandum, in whic h it recited the facts received t hus far in the proceeding (i.e.,
imports of subject merchandise together with an ad mission by the sole respondent interested party to
file a submission that it was not responsible for any of the imports) and concluded that Siderca did not
account for 50 per cent of imports of the subject me rchandise. Siderca did not file a response to the
Adequacy Memorandum, as it was entitled to do pursua nt to section 351.309(e). Not having received
a response to its Adequacy Memorandum, Commerce then proceeded with an expedited review, as
contemplated by the regulations to which Siderca was privy.

34. The facts on the record – as Siderca allowed them to stand – therefore supported a finding of
dumping during the life of the order. Commerce found that dumping duties were levied and collected,
at the dumping margins assigned in the original inve stigation, against Argentine OCTG imported into
the United States during the five-year period preceding the sunset review. Commerce also examined
import data from several sources, including the Cens us Bureau Statistics and the ITC Trade Database,
and found that US imports of Argentine OCTG had declined substantially immediately after the order
was imposed and remained at depressed levels for the entire five-year period prior to the sunset
review. Based on these findings and absent any ev idence or argument from Siderca to the contrary,
Commerce concluded that dumping by Argentine e xporters was likely to continue or recur in the
event of revocation of the order.
35

35. In this regard, Argentina’s allegation that its "treatment in the sunset review depended entirely
on the assumption that the US statistics were correc t, that there were other exports from Argentina,
and that these alleged other exports were releva nt enough to trigger a waiver and/or expedited
review"36 is wrong. Argentina’s "treatment in the suns et review" is the direct result of the meagre
participation of its foreign exporters. Moreover, the United States notes that as the government of the
country in which subject merchandise was produced, Argentina was an interested party and could
have participated in the proceedings, had it chosen to do so.37

B. ARGENTINA'S CLAIMS REGARDING THE ANTI-DUMPING AGREEMENT
36. Argentina claims that Commerce’s sunset determination in OCTG from Argentina is not
consistent with Article 11.3 because a sufficient factual basis does not exist to support the final
affirmative determination. 38 As noted above, Commerce created a factual record, including
substantive responses from interested parties and prior proceedings.

37. Argentina relies heavily on the argument th at the 1.36 per cent margin from the original
investigation is flawed because it was calculated in 1995 (it is "old") and the margin was calculated
using an allegedly WTO-inconsistent methodology. However, the Appellate Body in Japan Sunset
has concluded that Members are not obligated to calculate "new" dumping margins. 39 They are

 33 Page 4, (Exhibit ARG-57).
 34 19 C.F.R. 351.218(d)(4) (Exhibit ARG-3).
 35 Decision Memorandum at 4-5 (Exhibit ARG-51).
 37 Section 771(9) of the Tariff Act of 1930.
 38 Argentina's Oral Statement, paras. 69-70.
 39 Japan Sunset, para. 149.

merely obligated to provide respondent interested parties opportunities to offer evidence in support of
negative likelihood determination. Therefore, the magnitude
 of dumping is not pertinent to making a
determination with regard to likelihood of dumping.40

38. Argentina also maintains that Commerce violated Article 6 because the expedited review
procedures deprived Siderca of the opportunities for evidence submission and the defence of its rights
under Article 6.1 and Article 6.2 of the Anti-Dumping Agreement. Argentina alleges, in particular,
that the nature of Commerce’s expedited sunset review in OCTG from Argentina denied Siderca a
meaningful opportunity to submit evidence and impermissibly limited its ability to submit additional
argument or factual information in defence of its interests. 41 As discussed above, Siderca had more
than one meaningful opportunity to defend its intere sts. In its substantive submission, Siderca could
have included any information to indicate to Commerce th at there were no aggregate consumption
imports of OCTG during the period of review, or that Commerce should not use the 50 per cent
threshold in this particular case. Instead, Side rca simply focused on the magnitude of the dumping
margin. Similarly, Siderca could have filed a rebu ttal response to dispute or explain the statistics
provided by the domestic interested party, whic h showed imports of subject merchandise; at that
point, Siderca knew that, based on the record evid ence, it would not satisfy the 50 per cent threshold
normally used, based on Siderca’s own lack of shipment s. Further, Siderca failed to response to the
Adequacy Memorandum, which it was entitled to do. Again, the fact that respondent interested
parties (again recalling that there are two Argentine exporters of OCTG) failed to take advantage of
their opportunities does not mean that the United States failed to provide them.

39. In sum, there is no basis for Argentina’s claim that Commerce’s expedited sunset review
procedures impermissibly limited an interested party’s ability to present its case or defend its interests,
and Argentina has not demonstrated that Siderca’s ability to present its case or submit evidence was
impaired in any way in the instant sunset review.

VI. ARGENTINA HAS NOT DEMONSTRATED THAT THE ITC'S SUNSET REVIEW
PROCEDURES ARE INCONSISTENT WITH THE ANTI-DUMPING AGREEMENT
40. Argentina bears the burden of proving that the ITC’s sunset review determination is
inconsistent with the Anti-Dumping Agreement. Argentina has not met this burden.

41. Indeed, Argentina advanced arguments at the Panel meeting that are simply not accurate.
These concern in particular the "likely" standard of Article 11.3, cumulation , and whether the ITC
properly established the relevant facts and assessed thos e facts objectively. Each argument will be
addressed in turn.

A. T
HE "LIKELY" STANDARD OF ARTICLE 11.3
42. Argentina erroneously argues that decisions by US courts in other cases are relevant to this
dispute. They are not. But even if they were, th ese US court decisions are not ultimately helpful to
Argentina’s argument that "likely" entails a high degree of probability. In the one case that has
completed the first stage of judicial review, the court ultimately explained that it did not interpret
"‘likely’ to imply any degree of ‘certainty’."42

 40 It should be noted that Argentina’s challenge in this dispute is to Commerce’s reporting of the
1.36 per cent margin to the ITC for its use in making the determination of the likelihood of continuation or
recurrence of injury. See Argentina First Written Submission, paras. 189 & 193.
 41 Argentina's First Written Submission, paras. 121-122.
 42 Usinor Industeel v. United States, Slip Op. 02-152 at 6 (CIT 20 December 2002) (Exhibit US-18).

B. ARTICLE 3 OF THE ANTI-DUMPING AGREEMENT DOES NOT APPLY TO SUNSET REVIEWS
43. Argentina argues that because the term "injury" has the same meaning in Article 11.1 as in
Article 3, and because "the overarching principles of Article 11.1 provide the immediate context of
Article 11.3," the term "injury" must have the same meaning in Article 11.3 as it does in Article 3. 43
The United States is not of the view that "injury" has the same meaning in Articles 3 and 11.1, on the
one hand, and in Article 11.3, on the other. The analysis required by Articles 3 and 11.1, and by
Article 11.3 is fundamentally differ ent. Articles 3 and 11.1 speak of existing "injury." Article 11.3
on the other hand speaks of the likelihood of the "continuation or recurrence of . . . injury." These
provisions have a different focus and involve entirel y different determinations, as the Appellate Body
has recognized on more than one occasion.44

44. Argentina questions whether the injury referred to in Article 11.3 can be any different than
that referred to in Article 11.1.45 The United States is of the view that Article 11.1 is best viewed as a
statement of general principle as to the duration of anti-dumping duty measures, but not as providing
specific content to Members’ obl igations under Article 11.3 w ith respect to sunset reviews. 46 Th is
becomes clear if one considers the consequences of a literal interpre tation of the two provisions.
Article 11.1 would appear to requir e the revocation of an anti-dumping duty order as soon as it is no
longer causing injury ("[a]n anti-dumping duty shall remain in force only as long as . . . necessary to
counteract dumping which is causing injury"). Ar ticle 11.3 (and Article 11.2 for that matter),
however, contemplates that an anti-dumping measure may be continued even if there is no current
injury, if it is likely that injury will recur. Put another way, if Article 11.1 is read as providing
specific content to Members’ obligations under Arti cle 11.3, it would make a nullity of that part of
Article 11.3 that permits the continuation of a dut y when injury is likely to recur. Such an
interpretation flies in the face of the fundamental pr inciple of treaty interpretation that treaties should
not be interpreted in such a way as to make any of their provisions inutile.47

45. It is significant that neither Argentina nor any of the third parties have responded to the
United States’ observation that applying the definition of "injury" in footnote 9 to the determination of
"recurrence of injury" in Article 11.3 would lead to absurd results. It would mean that the inquiry in a
sunset review would become whether expiry of the duty would be likely to lead to continuation or
recurrence of material injury to a domestic industry, threat of material injury to a domestic industry or
material retardation of the establishment of such an industry. Continuation or recurrence of a threat of
material injury would involve a very attenuated no tion of future injury and would set an extremely
low threshold in sunset reviews for continuing anti-dumping duty measures. The United States is of
the view that this is not what was intended by Me mbers when Article 11.3 was negotiated. Moreover,
it is hard to see how many of the obligations of Article 3 would be relevant to an inquiry of whether
expiry of the duty would be likely to lead to cont inuation or recurrence of material retardation of the
establishment of an industry. The United States can see no basis for selectively applying parts of the
definition of "injury" in footnote 9 to sunset reviews, but not applying others. Either the definition
applies to Article 11.3 in its entirety or it does not apply at all.

46. The fallacy of Argentina’s position that Article 3 applies to sunset determinations is apparent
by considering an analogy (albeit an imperfect one). Suppose that there are two distinct inquiries:
(1) whether at least one meter of snow is lying on the ground; and (2) whether it is likely that at least
one meter of snow will fall within a month. Although both of these inquiries refer to "at least one

 43 Argentina's Oral Statement, paras. 98 and 101.
 44 US – German Steel, AB Report, para. 87, US - Japan Sunset, AB Report, para. 106
 46 The text of Article 11.1 existed in its present form in the Tokyo Round Anti-Dumping Code (as
Article 9.1 in that code), prior to the adoption of the provision for sunset reviews.
 47 See United States – Standards for Reformulated and Conventional Gasoline , WT/DS2/AB/R, Report
of the Appellate Body adopted 20 May 1996, page 23 (footnote omitted).

meter of snow" (in the same way that footnote 9 a nd Article 11.3 both use the word "injury"), the
steps that would be appropriate to pursue each inquiry are quite different. The first inquiry might be
pursued by measuring the depth of the snow at certa in spots; the second inquiry might be pursued by
certain meteorological analysis. However, it woul d be inappropriate to pursue the second inquiry
using methods appropriate for the first ( i.e., by measuring the amount of snow currently on the
ground).

47. Argentina misconstrues the Appellate Body’s report in Steel from Germany , when it asserts
that "[t]he Appellate Body used the SCM equivalent of [footnote 9] as an illustration of how the
injury concept applies throughout the Agreement, including in sunset reviews."
48 In the section of the
Steel from Germany report referred to by Argentina, the Appellate Body was merely listing
"provisions of the SCM Agreement that apply independently of cross-references in that they contain
explicit statements of their scope of application." Contrary to Ar gentina’s suggestion, the Appellate
Body made no finding that Article 15, note 45 of the SCM Agreement applies in sunset reviews.
Argentina’s reliance on the panel report in DRAMs from Korea also is unpersuasive. 49 The panel in
that dispute was not considering the applicability of Article 3 to reviews under Article 11.2.

48. We next address arguments contained in the subm issions and oral statements of third parties.
The EC maintains that the reference in Article 3.1 to "a determination of injury for purposes of
Article VI of GATT 1994" lends supp ort to the conclusion that Article 3 obligations apply to sunset
reviews.50 This argument is unpersuasive. Article VI of GATT 1994 does not mention sunset
reviews, and a sunset review does not entail a "determination of injury."

49. The EC also argues that Article 3 must be applicable to sunset reviews because otherwise
members would have "completely unfettered discreti on" in determining the likelihood of continuation
or recurrence or injury.
51 The EC’s concerns are unfounded. First, sunset reviews are subject to the
provisions regarding evidence and procedure in Article 6 (by virtue of the explicit provision to this
effect in Article 11.4). Furthermore, sunset review s, if subject to dispute settlement, must satisfy the
provisions of Article 17.6(i) of the Anti-Dumping Agreement, i.e., the establishment of the facts must
be found to have been "proper" and the evaluati on of those facts to have been "unbiased and
objective." Finally, as the Appellate Body has explained, "[t]he 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 co nclusion on the basis of information gathered as part of the
process of reconsideration and examination."52

50. Japan’s discussion of how selected provisions of Article 3 supposedly apply to sunset reviews
in fact demonstrates just the oppos ite. Japan notes that Article 3.1 requires that authorities base their
injury determination on an objective examination of "the volume of the dumped imports" and "the
effect of dumped imports on prices." 53 But in a sunset review ther e may be no current imports, or
they may not currently be dumped. Japan then explains that Article 3.2 sets forth further rules on how
authorities shall consider the volume of dumped imports and price effects. 54 Again, these rules are
inapplicable in sunset reviews because of the possible absence of dumped imports. Japan goes on to
characterize Article 3.4 as providing the "detailed requirements for the examination of the impact of
dumped imports under Article 3.1, and, therefore, for a determination of injury." 55 But, as explained

 50 Third Participant’s Submission by the European Communities, paras. 124-125.
 51 Third Participant’s Submission by the European Communities, para. 126.
 52 Japan Sunset, para. 111.
 53 Third Party Submission of Japan, para. 11.
 54 Third Party Submission of Japan, para. 11.
 55 Third Party Submission of Japan, para. 12.

in the United States’ first submission, there are also numerous textual indications in Article 3.4 that it
is not applicable to sunset reviews.56

51. Next, Japan asserts that the causation and non-a ttribution requirements of Article 3.5 apply to
sunset reviews because of the use of the phrase "within the meaning of this Agreement" in that
article.57 The simple answer to this is that a dete rmination of the likelihood of continuation or
recurrence of injury in a sunset review is not a determination of injury. As explained in the United
States’ first written submission, the obligations under Article 3.5 are incompatible with the nature of
sunset reviews.58

52. In connection with its argument regarding the applicability of Article 3.5 to sunset reviews,
Japan points to the likely margin of dumpin g for OCTG from Argentina, 1.36 per cent.
59 The United
States notes that this is not the only margin that is relevant to these sunset reviews. The likely
dumping margins applicable to the other four coun tries considered cumulatively with Argentina in
these reviews were: Italy – 49.78 per cent, Japan – 44.20 per cent, Korea – 12.17 per cent, and Mexico
– 21.70 per cent.60

53. Japan argues that the ITC failed to observe th e non-attribution requirement of Article 3.5 to
the extent that it did not separate and distinguish the effects of dumping on the domestic industry from
the effects of several other specific factors. 61 As explained in the United States’ first submission
(paras. 348-354), the non-attribution analysis of Ar ticle 3.5 cannot be conducted in the context of
sunset reviews. Japan also misrepresents the ITC Report when it states that: "[t]he ITC also noted that
‘[o]il and natural gas prices, the ultimate drivers of OCTG demand’ and ‘a slowdown in the US and/or
world economy’ would be factors contributing to li kely injury to the domestic industry." The ITC
Report (p. II-13) identified these as factors relevant to demand trends, but not as factors contributing
to likely injury to the domestic industry.

54. Japan and Korea suggest that in a sunset revi ew the ITC must first establish whether there is
current injury, before considering lik elihood of continuation or recurrence.
62 However, there is
simply no textual basis in Article 11.3 for impo sing a requirement that authorities first make a
"present injury" determination before considering whether expiry of the duty is likely to lead to
continuation or recurrence of injury.

55. Korea argues that investigating authoritie s should not be permitted to use "different
substantive definitions and standards to determine whether initially to impose a measure (in an anti-
dumping investigation) and whether to terminate or continue that measure (in a sunset review)." 63
Korea’s position, like that advanced by the EC and Japan, fails to account for the fundamentally
"different nature and purpose of original investig ations, on the one hand, and sunset reviews, on the
other hand." 64 A determination of injury and a determ ination of the likelihood of continuation or
recurrence of injury involve fundamentally different inquiries.

C. CUMULATION IN SUNSET REVIEWS
56. The only textual basis that Argentina offers for its argument that cumulation is not permitted
in sunset reviews is that Article 11.3 refers to "a ny definitive anti-dumping duty" and to "the duty,"

 56 US First Submission, para. 346.
 57 Third Party Submission of Japan, para. 13.
 58 US First Submission, para. 350-353.
 61 Third Party Submission of Japan, para. 40.
 62 Third Party Submission of Japan, para. 14; Third Party Submission of the Republic of Korea,
para. 11.
 63 Third Party Submission of the Republic of Korea, para. 9.
 64 Japan Sunset, para. 124

and that Article 11.1 refers to "an anti-dumping duty. " Argentina’s position that the drafters of the
Anti-Dumping Agreement deliberately "have chosen the singular and have avoided the plural"
65 is
unconvincing. The reference to "any definitive anti-dumping duty" is not necessarily to the singular.66
Moreover, the reference in Article 11. 3 to "the duty" is merely descriptive and is hardly evidence that
the drafters intended to prohibit cumulation. (As noted in the United States’ first submission, 67
cumulation in anti-dumping investigations was a widespread practice among GATT contracting
parties prior to the adoption of Articles 3.3 and 11.3 in the Uruguay Round.)

57. Argentina seeks to bolster its argument by referring to "the object and purpose" of
Article 11.3. As the United States pointed out in its first submission (para. 367), the relevant principle
of treaty interpretation speaks of the object and purpose of the treaty , and not particular treaty
provisions.68 The United States does not agree with Argentina’s suggestion that Article 11.3 merely
rescinds anti-dumping duties. Article 11.3 is clear that expiry of such duties is only appropriate where
it is not likely that this would lead to the continuation or recurrence of dumping and injury.

58. Argentina’s claim that the United States has violated Article 11.3 by cumulating because
"Argentina, and each WTO Member, negotiated for the right to have an anti-dumping measure
affecting its exports removed after five years"
69 is similarly unpersuasive. The negotiating objective
of the United States and certain other Members wa s to retain anti-dumping duties where warranted.
The negotiating objectives of Argentina and perhaps other Members cannot be used to read into the
Anti-Dumping Agreement obligations that do not exist in the treaty as reflected by its text. Indeed, it
is the text reflects "the delicate balance of rights and obligations attained by the parties to the
[Uruguay Round] negotiations."
70

59. Argentina’s suggestion that, if cumulation is permitted in sunset reviews, the limitations on
cumulation in Article 3.3 must also apply is direc tly at odds with the Appellate Body’s finding in US
– German Steel 71 and therefore Argentina’s argument should be rejected.

60. Argentina argues that the standards that the ITC applies in deciding whether to cumulate run
"directly counter to the ‘ likely’ standard established by Article 11.3." 72 Argentina is confusing the
standards for (i) deciding whether cumulation in a sunset review is appropriate with (ii) the standard
for determining whether expiry of the duty would be likely to lead to continuation or recurrence of
injury. The Anti-Dumping Agreement is silent on th e former question, and thus the standards that the
ITC applied in deciding whether to cumulate cannot violate Article 11.3.

D. CONTRARY TO ARGENTINA'S ASSERTIONS, THE ITC PROPERLY ESTABLISHED THE RELEVANT
FACTS AND ITS ASSESSMENT OF THOSE FACTS WAS OBJECTIVE
61. Article 17.6 provides that "in its assessment of the facts of the matter, the panel shall
determine whether the authorities’ establishment of the facts was proper and whether their evaluation
of those facts was unbiased and objective." Notw ithstanding Argentina’s misstatements and selective
analysis about the factual record, the ITC did in fact properly establish facts and evaluate them in an
unbiased and objective manner.

 66 The New Shorter Oxford English Dictionary (p. 91) defines "any" as having singular or plural
meanings. (Exhibit US-28).
 67 US First Submission, para. 370.
 68 Vienna Convention on the Law of Treaties, Art. 31(1).
 70 US – German Steel, AB Report, para. 91.
 71 US – German Steel, AB Report, paras. 58-97.

62. In its oral statement, Argentina seeks to cast doubt on the ITC’s finding that the likely volume
of subject imports would be significant if the anti- dumping duty orders were revoked. Argentina
incorrectly states that the ITC found that "subject producers’ capacity utilization rates represent a
potentially important constraint on the ability of these subject producers to increase shipments of
casing and tubing to the United States." 73 The ITC was not referring to all of the subject producers
(i.e., the casing and tubing producers in the five countries subject to the sunset reviews) when it stated
producers were "operating at capacity utilization rates that represent a potentially important constraint
on [their] ability . . . to increase shipments of casing and tubing to the United States." This is clear
from a review of pages 18-19 of the ITC Report.

63. On page 18 the ITC first reviewed the capacity of subject producers in Japan. It stated: "[i]n
addition to the reported capacity of NKK [the only Japanese producer to have provided data to the
ITC], we find that there is significant availa ble capacity among the other Japanese producers."
74
Then, at the top of page 19 of the ITC Report the ITC reviewed the capacity of subject producers in
Korea, and referred to "Korea’s unused capacity for all pipe and tube products."75

64. Only after having considered available capac ity in Japan and Korea did the ITC discuss the
capacity utilization rates of "[p]roducers in the other subject countries (and NKK in Japan)"
(emphasis added), and it was in connection with these producers that the ITC made the observation
about capacity utilization rates representing a pote ntially important constraint on their ability to
increase exports to the United States.
76 In short, the ITC’s finding of potential capacity constraints on
exports applies only to producers in Argentina, It aly and Mexico – and not to producers in Japan
(except for NKK) and Korea.

65. This is especially significant because of the si ze of the casing and tubing industry in Japan.
The ITC noted that "[i]n the original investigations, the import volume, market share, and production
capacity of casing and tubing from Japan were the largest of the subject countries." 77 Because all but
one of the Japanese producers declin ed to participate in this sunset review, the precise size of the
Japanese industry was not known. However, accordi ng to the ITC Report, US producers stated that
non-responding Japanese producers had the potential to supply 3.5 million tons of OCTG 78 – an
amount that exceeded the to tal capacity of the US casin g and tubing industry in 2000. 79 (Data on the
capacity of those Korean producers that responded to the ITC’s questionnaire is confidential.) In
light of the foregoing, Argentina’ s argument that the ITC’s volume finding was contradicted by the
fact of capacity restraints is simply erroneous.

66. In addition to its conclusions about excess cap acity in Japan and Korea, the ITC found that
producers in Argentina, Italy, and Mexico, and NKK in Japan, would have incentives to devote more
of their productive capacity to producing and shipping casing and tubing to the US market, despite
their apparently high capacity utilization rates. Th e ITC gave a number of reasons for reaching this
conclusion. Argentina’s attempts in its oral statement to discredit the ITC’s reasoning are
unpersuasive.

 74 Oil Country Tubular Goods from Argentina, Italy, Japan, Korea, and Mexico, USITC Pub. 3434,
Inv. Nos. 701-TA-364, 731-TA-711, and 713-716 (June 2001) ("ITC Report") (Exhibit ARG-54) at 18.
 75 ITC Report at 19. The ITC’s more specific findings as to unused capacity among Korean producers
are redacted from the ITC Report because they reflect business proprietary information.
 76 ITC Report at 19.
 77 ITC Report at 18.
 78 ITC Report at II-8.
 79 The US casing and tubing industry’s capacity in 2000 was 3.3 million tons. ITC Report at III-1,
table III-1.

67. First, with respect to the ITC’s finding that Tenaris would have a strong incentive to expand
its presence in the US market, Argentina maintain s that "the Commission only examines ‘half’ the
story" and that "some of the companies forming the so-called Tenaris Alliance were outside the anti-
dumping duty orders under review."
80 This assertion is incorrect. In fact, only one of the five Tenaris
companies, Algoma in Canada, was not subject to the anti-dumping duty orders involved in these
sunset reviews.81

68. Argentina argues that if Tenaris had really been interested in shipping to the United States, it
could have done so through Algoma in Canada. 82 Argentina neglects to mention, however, that in
2000 – only one year before the reviews at issue he re - counsel for Siderca assured the ITC, during a
five-year review involving OCTG from Canada, that DST (the predecessor organization to Tenaris)
had no intention of using the Algoma facility to ship OCTG to the United States. 83 Based at least in
part on this assurance, the ITC lifted a longstan ding anti-dumping order on OCTG from Canada.
Tenaris’ commitment not to ship OCTG from Cana da completely undermines Argentina’s argument
that Tenaris could use Algoma to serve this market.

69. Also, in connection with the incentive for Te naris to ship to the United States, Argentina
suggests that this was not likely to occur because of long-term contractual commitments by Siderca
and other affiliated prod ucers to sell elsewhere.
84 The suggestion by Argentina that all of Tenaris’
production was devoted to long-term contracts is at odds with Tenaris’ own testimony in the sunset
reviews. Siderca ’s President (who testified that he was responsible for exports of OCTG from all of
the Tenaris companies) testified that its long-term agreements account for only about 55 per cent of its
sales of OCTG.85 In other words, Tenaris’ commitments under long-term contracts would not present
a significant impediment to expanding shipments to the United States.

70. The United States pointed out (in para. 328 of its first written submission) that Argentina’s
claim that Siderca’s ability to ship to the United States was limited by long-term contractual
commitments was also undermined by the fact that many of these contracts were with global oil and
gas companies that would be eager to buy from Si derca in the United States. Argentina now asserts
that the United States ignored evidence that the global companies with which Tenaris had contracts
represented only 12-14 per cent of US oil and gas rigs.86 In fact, the ITC did not ignore this evidence.
As the ITC explained in its report (p. 19, n. 124), the evidence on the US market share of these
companies was mixed: Tenaris claimed it was only 12-14 percent; the domestic industry claimed it
was significantly greater. The ITC found that th e US presence of these global companies to be
significant under either estimate.87

71. Argentina contends that the evidence that global oil and gas companies already buying from
Tenaris would also want to do so in the United States if the anti-dumping orders were revoked is

 81 ITC Report at 16.
 82 Argentina's Oral Statement, para. 119, first subparagraph.
 83 See, Certain Pipe and Tube from Argentina, Brazil, Canada, India, Korea, Mexico, Singapore,
Taiwan, Thailand, Turkey, and Venezuela , Inv. Nos. 701-TA-253 (Review) and 731-TA-132, 252, 271, 273,
276, 277, 296, 409, 410, 532-534, 536, and 537 (Review), USITC Pub. 3316 (July 2000) at 51 n. 310, and
OCTG-IV-5 (Exhibit US-29).
 85 Oil Country Tubular Goods from Argentina, Italy, Japan, Korea, and Mexico, Inv. Nos.
701-TA-364, 731-TA-711, and 713-716, ITC Hearing Tr anscript, ("ITC Hearing Tr."), pp. 200 and 205
(German Cura, Siderca) (Exhibit US-30). Argentina cites to this very testimony in its oral statement (para. 119,
third subparagraph).

86 Argentina's Oral Statement, para. 119, fourth and fifth subparagraphs.
 87 ITC Report, p. 19 n.124.

supported only by "a second-hand statement that one customer had expressed such a desire." 88 This is
incorrect. This was not only the testimony of the president and chief executive officer of one of the
largest distributors of OCTG in the United States; 89 the director of another large OCTG distributor
told the ITC:

Most of the major end users already pu rchase from these subject producers
internationally and the end users are unwavering in their desire to see the extremely
low priced OCTG that they get internationally extended to the US market. They have
said as much to me quite openly and I think you would hear the same thing from most
of my colleagues up here today.90
72. The second reason that the ITC found that the subject producers would have an incentive to
devote more of their capacity to shipping casing and tubing to the US market is that casing and tubing
were among the highest valued pipe and tube products, generating among the highest profit margins.91
Argentina characterizes this factor as "a ge neral assumption rather than positive evidence." 92
Argentina is mistaken. The relatively high value (and profit margins) of casing and tubing was
established during the ITC’s sunset reviews,
93 and Argentina does not dispute this fact. It stands to
reason that pipe and tube producers – as profit- maximizing entities – would seek to maximize their
production of products with higher profit margins. Argentina’s attempts to dismiss this factor as
"conjecture and speculation"94 is unpersuasive.

73. The third factor that the ITC relied on in dete rmining that producers in Argentina, Italy, and
Mexico, and NKK in Japan, would have incentives to increase their shipments of casing and tubing to
the United States, is that prices for casing and t ubing on the world market were significantly lower
than prices in the United States.
95 Argentina’s characterization of this evidence as "anecdotal" is
misleading. As its report makes clear, the ITC relie d on the testimony of three executives from firms
that produce or distribute OCTG, who each testified that prices for casing and tubing in the United
States were significantly higher than international prices. 96 Argentina also attempts to downplay this
factor by noting that the ITC recognized that there was contradictory evidence as to the magnitude of
the price differential. 97 The fact that Argentina does not dispute the existence of a price differential,
but rather questions its magnitude, speaks for itself.

74. The fourth factor that the ITC relied on is that foreign casing and tubing producers also faced
import barriers in other countries or on related products that were pr oduced in the same facilities as
OCTG. Import barriers in other countries existed in the form of a 67 per cent anti-dumping duty in
Canada on casing from Korea. The import barriers on related products that the ITC identified were:
(i) US anti-dumping duties on seamless standard pipe from Argentina, Japan, and Mexico; (ii) US
import quotas on welded line pipe shipped from Ko rea; and (iii) US anti-dumping duties on circular,
welded, non-alloy steel pipes from Korea.

75. Argentina seeks to downplay the Canadian anti-dumping duty on casing from Korea of
67 per cent.
98 However, it was reasonable for the ITC to ta ke this factor into account, especially since

 88 Argentina's Oral Statement, para. 119, fifth subparagraph.
 89 ITC Hearing Tr. at 59 (Mr. Ketchum, Red Man Pipe and Supply) (Exhibit US-20).
 90 ITC Hearing Tr. at 55 (Mr. Stewart, Hunting Vinson) (Exhibit US-20).
 91 ITC Report, p. 19.
 92 Argentina's Oral Statement, para. 120, first subparagraph.
 93 ITC Report, p.16.
 94 Argentina's Oral Statement, para. 120, fourth subparagraph.
 95 ITC Report at 19-20.
 96 ITC Report at 19 n.128.
 97 Argentina's Oral Statement, para. 121, second subparagraph.
 98 Argentina's Oral Statement, para. 122, first subparagraph.

the Korean industry is heavily export-dependent, Ca nada is the second largest regional market for
OCTG in the world,
99 and the Canadian duty was relatively high.

76. In connection with anti-dumping measures on related products, Argentina claims that there
was no evidence that pipe and tube producers would ever shift production from other products to
OCTG. This is simply false. In sworn testimon y before the ITC, domestic producers specifically
testified that there is a hierarchy of pipe and tube products, and that OCTG is at the top of that
hierarchy.100 These same producers also testified that their companies did switch production to
higher-value products like OCTG as market conditions warranted. 101 This evidence directly supports
the ITC's finding that if the orders on OCTG were revoked, Tenaris would have a strong incentive to
shift products in order to increase its output of OCTG.

77. Finally, the ITC explained that industries in at least some of the subject countries were
heavily export-dependent. The ITC noted that Japa n and Korea in particular had very small home
markets and depended nearly exclusively on exports.
102 Argentina seeks to minimize the significance
of this factor by arguing that the ITC inferred that just because "certain companies have been
successful in exporting," they would increase thei r exports to the United States by certain amounts. 103
Argentina misconstrues the ITC’s finding in two respects. First, the ITC did not conclude merely that
certain companies "have been successful in exporting; " rather, it found that the industries in at least
some of the countries involved (and pa rticularly in Japan and Korea) were dependent on exports
because of very small home markets for their products. Second, the ITC did not infer from this
export-orientation that these industries would increa se their exports to the United States in specific
amounts (as Argentina argues). Instead, this export-orientation was just one of a number of factors
that led the ITC to conclude that the likely volume of subject imports would be significant if the anti-
dumping duty orders were revoked.

78. Argentina’s approach to the ITC’s analysis of the likely volume of imports is to examine in
isolation each factor that the ITC considered and to assert that each factor does not amount to positive
evidence. However, the Panel is directed in Artic le 17.6 to assess whether the establishment of the
facts was proper and whether the evaluation of thos e facts was unbiased and objective. The ITC
properly developed an extensive record in the sunset reviews at issue and conducted an unbiased and
objective analysis of that record. Although Argentina may have drawn a different conclusion based
on those facts, that alone does not render the IT C’s determination inconsistent with the Anti-Dumping
Agreement.

VII. CONCLUSION
79. Based on the foregoing, the United States renews its request that the Panel reject Argentina’s
claims in their entirety.

 99 The United States directs the Panel’s attention to Figure II-1 on page II-5 of the ITC Report, which
shows that the percentage of worldwide rig counts in 2000 was as follows: United States – 47.91 per cent,
Canada – 17.99 per cent, Latin America – 11.87 per cent, Middle East – 8.16 per cent, Far East – 7.32 per cent,
and Europe and Africa – 6.75 per cent.

100 IT Hearing Tr. at 158-159 (Mr. Dunn, Lone Star Steel) (Exhibit US-30).
 101 ITC Hearing Tr. at 159 (Mr. Dunn, Lone Star Steel) and 161 (Mr. Barnes, IPSCO Tubulars)
(Exhibit US-30)].
 102 ITC Report at 20.