2. Certain Claims That Have Allegedly Not Been Raised in Argentina's Panel Request

7.49 The United States asserts that certain claims that appear in Argentina's first written submission are not within our terms of reference because these claims have not been raised in Argentina's panel request.

7.50 Argentina argues that none of the matters referred to by the United States in this context are new because they are all found in Argentina's panel request. Further, Argentina submits that in order for an allegation of inconsistency with Article 6.2 to prevail, the defending party has to prove actual prejudice resulting from the alleged deficiency, which, according to Argentina, the United States has not done so far.

7.51 Claims which, in the United States' view, are outside our terms of reference and our analysis with respect to each of them are as follows:

(a) Argentina's claim challenging the US practice as such and as applied in the instant sunset review regarding the alleged irrefutable presumption in sunset reviews

7.52 The United States submits that Argentina's claim challenging the US practice as such and as applied in the instant sunset review regarding the alleged irrefutable presumption in sunset reviews is not included in its panel request and therefore the Panel should find these claims to be outside its terms of reference.

7.53 Argentina argues that section A.4 of its panel request contains both an "as such" and an "as applied" claim regarding the US practice concerning the alleged irrefutable presumption in sunset reviews.

7.54 We note that section A.4 of Argentina's panel request reads:

4. The Department's Sunset Determination is inconsistent with Article 11.3 of the Anti-Dumping Agreement, and Article X:3(a) of the GATT 1994 because it was based on a virtually irrefutable presumption under US law as such that termination of the anti‑dumping duty measure would be likely to lead to continuation or recurrence of dumping. This unlawful presumption is evidenced by the consistent practice of the Department in sunset reviews (which practice is based on US law and the Department's Sunset Policy Bulletin). (emphasis added)

7.55 We also note that we did not rule on Argentina's claim regarding the USDOC's practice as such in this regard.²² We therefore need not, and do not, rule on this aspect of the US request for a preliminary ruling.

7.56 In our view, however, it is nevertheless clear that section A.4 takes issue with an alleged irrefutable presumption in the context of sunset reviews. Further, the first sentence links this alleged presumption to the USDOC's determination in the instant sunset review whereas the second sentence links it to the USDOC's practice.

(b) Argentina's claim regarding the alleged irrefutable presumption under US law as such

7.57 The United States asserts that Argentina's claim that 19 USC. �� 1675(c) and 1675(a)(c), the SAA, and the SPB, taken together, establish an irrefutable presumption that is inconsistent with Article 11.3 of the Anti-Dumping Agreement is not within our terms of reference because this claim is not set out in Argentina's panel request. The United States argues that section A.4, which is the only place where Argentina is raising its claim regarding this alleged presumption, is limited to the USDOC's determinations in this sunset review and thus does not challenge the US law.

7.58 Argentina submits that section A.4 of its panel request clearly states that Argentina's claim regarding the irrefutable presumption is premised on Argentina's allegation that the US law contains such a presumption. Therefore, this claim is within the Panel's terms of reference.

7.59 We note once again that section A.4 of Argentina's panel request reads:

4. The Department's Sunset Determination is inconsistent with Article 11.3 of the Anti-Dumping Agreement, and Article X:3(a) of the GATT 1994 because it was based on a virtually irrefutable presumption under US law as such that termination of the anti‑dumping duty measure would be likely to lead to continuation or recurrence of dumping. This unlawful presumption is evidenced by the consistent practice of the Department in sunset reviews (which practice is based on US law and the Department's Sunset Policy Bulletin). (emphasis added)

7.60 We note that section A.4 of the panel request contains the phrases "irrefutable presumption under US law as such" and "practice is based on US law and the Department's Sunset Policy Bulletin". Thus, we consider that the text of this section is sufficiently clear to put the United States on notice that Argentina may pursue a claim against US law as such regarding the alleged irrefutable presumption.

(c) Argentina's claim under Article X:3(a) of the GATT 1994

7.61 The United States argues that section VII.E of Argentina's first written submission introduces a claim of inconsistency with Article X:3(a) of the GATT 1994 regarding the US practice as such and as applied in the instant sunset review. However, in the view of the United States, section A.4 of Argentina's panel request challenges only the USDOC's sunset determination in the instant sunset review, not the US practice as such.

7.62 Argentina argues that section A.4 of its panel request clearly contains a claim under Article X:3(a) of the GATT 1994 regarding the US practice as such and as applied in the instant sunset review.

7.63 We note that this aspect of the US request for a preliminary ruling is the same as the one the United States raised in the context of its challenge regarding page four of Argentina's panel request. Therefore, on the basis of our above analysis (supra, para. 7.29) we decline the US request here.

(d) Argentina's claim regarding the USITC's sunset determinations in the instant sunset review

7.64 The United States contends that section VIII.C.2 of Argentina's first written submission contains a claim regarding the USITC�s application of 19 U.S.C. 1675a(a)(1) and (5) in the instant sunset review. According to the United States, however, the relevant portion of Argentina's panel request, section B.3, is limited to the US statutory provisions "as such" and makes no reference to the instant sunset review.

7.65 Argentina asserts that the heading of section B of its panel request clearly states that Argentina is also challenging the application of the US statutory provisions by the USITC in the instant sunset review.

7.66 We note that this aspect of the US request for a preliminary ruling is the same as the one the United States raised in the context of its challenge regarding page four of Argentina's panel request. Therefore, on the basis of our above analysis (supra, paras. 7.31-7.32) we decline the US request here.

(e) Argentina's consequential claims under Articles 1 and 18 of the Anti-Dumping Agreement, Article VI of the GATT 1994 and Article XVI:4 of the WTO Agreement

7.67 The United States submits that Article VI of the GATT 1994, Articles 1 and 18 of the Anti-Dumping Agreement and Article XVI:4 of the WTO Agreement that are being raised in section IX of Argentina's first written submission only appear on page four of Argentina's panel request. Given the US assertion that page four is not within our terms of reference, the United States argues that we should find these claims to be outside our terms of reference.

7.68 Argentina argues that given that these provisions are cited as consequential claims, their mere citation on page four of Argentina's panel request is sufficient to present the problem clearly in conformity with Article 6.2 of the DSU.

7.69 We note that this aspect of the US request for a preliminary ruling is the same as the one the United States raised in the context of its challenge regarding page four of Argentina's panel request. Therefore, on the basis of our above analysis (supra, para. 7.34) we decline to rule on the US request.

(f) Conclusion

7.70 In conclusion, we decline the US request for preliminary rulings regarding certain matters that are allegedly not raised in Argentina's panel request.

3. The Issue of Prejudice

7.71 Finally, we note that as our analysis with respect to the totality of the United States' request for preliminary rulings was based on a textual analysis of Argentina's panel request, we did not need to inquire into the issue of whether the United States had been prejudiced in its right to defend itself in the present proceedings due to the alleged inconsistencies in the panel request. We nevertheless note that the United States has not shown to the Panel that it had been prejudiced in its right to defend itself in these proceedings due to these alleged inconsistencies in Argentina's panel request. In several instances, the United States argued that it did not know what case it had to answer because of the lack of precision with respect to certain parts of Argentina's panel request.²³ However, we consider that without supporting arguments, this simple allegation can not be taken to establish prejudice.²⁴

C. CLAIMS REGARDING US LAW²⁵ AS SUCH

1. Waiver Provisions under US Law

(a) Arguments of parties

(i) Argentina

7.72 Argentina argues that Section 751(c)(4) of the Tariff Act and Section 351.218(d)(2)(iii) of the Regulations ("hereinafter "waiver provisions"), which relate to the circumstances in which an exporter waives its right to participate in a sunset review, are inconsistent with Article 11.3 of the Agreement. Argentina submits that these waiver provisions, under certain circumstances, direct the USDOC to find likelihood of continuation or recurrence of dumping without carrying out a substantive review as required under Article 11.3. Argentina contends that Article 11.3 requires the investigating authority to take an active role in sunset reviews. In order to make the required determination under Article 11.3, the investigating authority has to gather and evaluate relevant facts. It can not passively assume that dumping is likely to continue or recur.

7.73 According to Argentina, the US waiver provisions also violate Articles 6.1, 6.2 and consequently 11.4 of the Agreement because they deny exporters involved in a sunset review the opportunity to submit evidence to the investigating authority and to defend themselves in sunset reviews.

(ii) United States

7.74 According to the United States, apart from the cross-references in Articles 11.4 and 12.3, Article 11.3 is the only provision in the Agreement that sets out the rules that govern sunset reviews. Aside from the obligations set out in these provisions, the Agreement leaves the conduct of sunset reviews to the discretion of the investigating authorities. Article 11.3 does not require the investigating authorities to conduct a full sunset review, as defined under US law, in all cases. Investigating authorities would have wasted their and some private parties' resources had they been required to conduct a full sunset review in all cases. The United States argues that the waiver provisions simply determine the factual basis upon which the USDOC will make sunset determinations and in no way prevent the USDOC from making the requisite likelihood determination under Article 11.3. The waiver provisions effectuate the expeditious completion of sunset reviews vis-�-vis interested parties that fail to submit substantive responses to the notice of initiation of a sunset review, as allowed under Article 6.14 of the Agreement.

7.75 The United States also contends that the waiver provisions do not contradict Articles 6.1 and 6.2 of the Agreement. The United States argues that US law provides interested parties in sunset reviews with ample opportunity to submit evidence and to defend their interests as required in these provisions. According to the United States, since the evidentiary standards for expedited sunset reviews provided for under US law are consistent with Article 6, the fact that the United States provides interested parties in full sunset reviews with extended opportunities to submit evidence can not render US law WTO-inconsistent.

(b) Arguments of third parties

(i) European Communities

7.76 The European Communities criticises the SAA's mere concentration on the issue of the extraordinary administrative burden on the agency resources and on achieving administrative efficiency. Though acknowledging the importance of such objective, the European Communities submits that, as a matter of WTO law, resource allocation issues could never justify the disregard of Article 11.3 in sunset reviews.

(ii) Japan

7.77 Japan agrees with Argentina that the waiver provisions of US law are inconsistent with Articles 6, 11.3 and 18.4 of the Anti-Dumping Agreement and Article XVI:4 of the WTO Agreement.

(iii) Korea

7.78 Korea submits that all interested parties have to be given the opportunity to present evidence and to defend their interests. In Korea�s view, expedited sunset reviews � whether on the basis of waiver or inadequacy � conflict with Articles 6.1 and 6.2. Korea also argues that the USDOC's practice does not comply with the provisions of Article 6.8 and Annex II of the Agreement governing the use of facts available.

(iv) Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu

7.79 According to the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu, although the conduct of an expedited sunset review in and of itself is not WTO-inconsistent, the provisions that direct the USDOC to make a likelihood determination in cases where interested parties waive their right to participate are inconsistent with Article 11.3 of the Agreement.

(c) Evaluation by the Panel

(i) Alleged Violations of Article 11.3 of the Agreement

Measures at issue

7.80 Argentina challenges the waiver provisions of US law as such.²⁶ Specifically, Argentina's claim relates to Section 751(c)(4) of the Tariff Act and Section 351.218(d)(2)(iii) of the Regulations. Argentina does not challenge Section 351.218(d)(2)(i) of the Regulations. We did, however, refer to Section 351.218(d)(2)(i) of the Regulations as context for analysis below.

7.81 Section 751(c)(4) of the Tariff Act of 1930 provides, in relevant part:

(4) Waiver of participation by certain interested parties

(A) In general

An interested party described in section 1677(9)(A) or (B) of this title may elect not to participate in a review conducted by the administering authority under this subsection and to participate only in the review conducted by the Commission under this subsection.

(B) Effect of waiver

In a review in which an interested party waives its participation pursuant to this paragraph, the administering authority shall conclude that revocation of the order or termination of the investigation would be likely to lead to continuation or recurrence of dumping or a countervailable subsidy (as the case may be) with respect to that interested party.²⁷ (emphasis added)

7.82 Next, we turn to Section 351.218(d)(2) of the USDOC's Sunset Regulations, which provides in relevant part:

(2) Waiver of response by a respondent interested party to a notice of initiation�

(i) Filing a Statement of Waiver. A respondent interested party may waive participation in a sunset review before the Department under Section 751(c)(4) of the Act by filing a Statement of Waiver with the Department, not later than 30 days after the date of publication in the Federal Register of the notice of initiation. If a respondent interested party waives participation in a sunset review before the Department, the Secretary will not accept or consider any unsolicited submissions from that party during the course of the review. Waiving participation in a sunset review before the Department will not affect a party's opportunity to participate in the sunset review conducted by the International Trade Commission. (emphasis added)

...

(iii) No response from an interested party. The Secretary will consider the failure by a respondent interested party to file a complete substantive response to a notice of initiation under paragraph (d)(3) of this section as a waiver of participation in a sunset review before the Department.²⁸ (emphasis added)

7.83 We note that Section 751(c)(4)(A) of the Tariff Act provides that an interested party may elect to waive its participation in sunset review proceedings conducted by the USDOC and participate only in sunset review proceedings conducted by the USITC. Section 351.218(d)(2)(i) of the Regulations provides that an interested party may waive participation by filing a statement of waiver with the USDOC. We will refer to this as an "explicit" or "affirmative" waiver. Further, according to Section 351.218(d)(2)(iii) of the Regulations, the USDOC will consider the failure of an interested party to submit a complete substantive response to the notice of initiation of a sunset review to constitute a waiver of participation in the USDOC's sunset review proceedings. We will refer to this as an "implicit" or "deemed" waiver.

7.84 On the basis of the above-cited provisions of US law, we understand the operation of the waiver provisions to be as follows: Following the publication of the notice of initiation of a sunset review, foreign exporters (referred to as "respondent interested parties" under US law) which desire to participate in the sunset review proceedings before the USDOC must submit a complete substantive response to the USDOC. For the substantive response to be complete, it has to contain all of the items listed in Section 351.218(d)(3) of the Regulations. According to Section 751(c)(4)(A) of the Tariff Act, an interested party in a sunset review may elect to waive its right to participate in the USDOC part of a sunset review. Section 351.218(d)(2)(i) of the Regulations provides that interested exporters who wish to waive participation may do so by submitting a statement of waiver to the USDOC. Under Section 351.218(d)(2)(iii) of the Regulations, an exporter's failure to submit a complete substantive response to the notice of initiation is deemed to constitute a waiver of its right to participate in the USDOC proceedings. In either case, the application of Section 1675(c)(4) of the Tariff Act leads to the same result: The USDOC "shall" find likelihood of continuation or recurrence of dumping with respect to an exporter which waives its right to participate.

7.85 We consider it important to note that the distinction between affirmative and deemed waivers stems from Section 351.218(d)(2)(iii) of the Regulations, not the Tariff Act. The Tariff Act simply provides that interested parties may choose not to participate in the USDOC part of a sunset review, and that the effect of a waiver is an affirmative finding of likelihood by the USDOC. Section 351.218(d)(2)(iii) of the Regulations, however, creates the deemed waiver category by stipulating that submission of an incomplete, or no, response to the notice of initiation also constitutes a waiver. Therefore, our findings regarding affirmative waivers will have implications on the Tariff Act whereas those relating to deemed waivers will only affect Section 351.218(d)(2)(iii) of the Regulations.

Nature of the obligations in Article 11.3

7.86 Argentina contends that the above-cited waiver provisions of US law are inconsistent with the investigating authorities' obligation to determine likelihood of continuation or recurrence of dumping under Article 11.3 of the Agreement.

7.87 Article 11.3 of the Anti-Dumping Agreement reads:

Notwithstanding the provisions of paragraphs 1 and 2, any definitive anti‑dumping duty shall be terminated on a date not later than five years from its imposition (or from the date of the most recent review under paragraph 2 if that review has covered both dumping and injury, or under this paragraph), unless the authorities determine, in a review initiated before that date on their own initiative or upon a duly substantiated request made by or on behalf of the domestic industry within a reasonable period of time prior to that date, that the expiry of the duty would be likely to lead to continuation or recurrence of dumping and injury.²² The duty may remain in force pending the outcome of such a review.

___________

²² When the amount of the anti-dumping duty is assessed on a retrospective basis, a finding in the most recent assessment proceeding under subparagraph 3.1 of Article 9 that no duty is to be levied shall not by itself require the authorities to terminate the definitive duty.

7.88 Article 11.3 provides that an anti-dumping duty must be terminated after five years "unless the authorities determine, in a review..." that expiry of the duty would be likely to lead to continuation or recurrence of dumping and injury. The ordinary meaning of "determine" is, inter alia, "settle or decide (a dispute, controversy, etc., or a sentence, conclusion, issue, etc.) as a judge or arbiter".²⁹ This ordinary meaning seems to fit the usage of "determine" in Article 11.3, which requires that the investigating authority determine that dumping and injury is likely to continue or recur in a case where the duty is revoked. The Article 11.3 obligation to �determine� the likelihood of continuation or recurrence of dumping requires the investigating authority to make a reasoned finding on the basis of positive evidence that dumping is likely to continue or recur should the measure be revoked. The obligation to make such a determination precludes an investigating authority from simply assuming that likelihood exists. The authority 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.³⁰

7.89 Accordingly, we consider that Article 11.3 requires that an investigating authority's determination that dumping is likely to continue or recur must be supported by reasoned and adequate conclusions based on the facts before it in a sunset review. We will therefore consider whether the waiver provisions of US law prevent the USDOC from making such a determination in situations where an interested party has waived its right to participate in a sunset review.³¹

Examination of the consistency of the waiver provisions

7.90 In the context of its claim under Article 11.3 of the Agreement, Argentina is challenging the provisions of US law relating to both affirmative and deemed waivers.³² We will, therefore, analyse both of these two types of waivers in light of the investigating authorities' obligation to determine likelihood of continuation or recurrence of dumping under Article 11.3.

Deemed waivers

7.91 We recall that under 351.218(d)(2)(iii) of the USDOC's Regulations, there will be a deemed waiver in cases where an exporter submits an incomplete � or no � substantive response to the notice of initiation of a sunset review. Pursuant to Section 751(c)(4)(B) of the Tariff Act, which makes no distinction between affirmative and deemed waivers, the consequence of a waiver is a finding of likelihood of continuation or recurrence of dumping by the USDOC with respect to that exporter.

7.92 The first factual situation that leads to a deemed waiver is the submission by an exporter of an incomplete substantive response to the notice of initiation of a sunset review. In this case, the exporter intends to participate in the sunset review and submits information to the USDOC. However, the submission is not complete, i.e. it does not contain all the information that US law requires to be submitted in a substantive response to the notice of initiation of a sunset review. US law mandates a finding of likelihood in this case.

7.93 In our view, where the foreign exporter submits information to the USDOC, the obligation to make a reasoned determination of likelihood under Article 11.3 of the Agreement requires the USDOC to take that information into consideration in its sunset determination.³³ Taken together, however, Section 751(c)(4)(B) of the Tariff Act and Section 351.218(d)(2)(iii) direct the USDOC to find that likelihood exists with respect to a given exporter simply because the exporter's substantive response to the notice of initiation does not contain some of the information prescribed under US law. Thus, the USDOC is precluded from taking into consideration, in its determination with respect to a given exporter, the facts submitted by that exporter (or any other facts before it that might be relevant to its determination), and it is further precluded from receiving, much less considering, any other facts relevant to this question. To the contrary, it is required to make an affirmative determination on the basis of one fact alone: the failure of the exporter to submit a complete substantive response to the notice of initiation of a sunset review.³⁴ In our view, this can not be a determination supported by reasoned and adequate conclusions based on the facts before an investigating authority.

7.94 The second situation that may lead to a deemed waiver is failure to respond at all to the notice of initiation of a sunset review. In this case, the exporter concerned neither explicitly waives its right to participate nor submits any information to the USDOC. Under Section 351.218(d)(2)(iii) of the Regulations, this situation is also deemed to constitute a waiver of participation.³⁵ Pursuant to Section 751(c)(4)(B) of the Tariff Act, the USDOC is required to find likelihood with respect to the exporter that remains silent following the publication of the notice of initiation.

7.95 We recall our view that Article 11.3 requires that an investigating authority's determination that dumping is likely to continue or recur be supported by reasoned and adequate conclusions based on the facts before the authority in a sunset review. In the factual situation we are now analyzing, the failure of the exporter to put any information before the USDOC may mean that the USDOC has little or no information before it that is relevant to whether dumping by that exporter is likely to continue or recur (although some relevant evidence, such as the results of administrative reviews, may nevertheless be available). Such non-cooperation clearly is not without consequences for the exporter. Under these circumstances, the USDOC may, consistent with the terms of Article 6.8 and Annex II of the Agreement, resort to the use of the facts available, including information from secondary sources. As Annex II clearly indicates, "this situation could lead to a result which is less favourable to the party than if the party did cooperate". It is clear to us that in this context, the USDOC may have no choice but to make its determination on the basis of a more limited and less robust record than would exist had the exporter co-operated. This does not, however, mean that the USDOC may be automatically authorized, and indeed required, to make an affirmative finding that the continuation or recurrence of dumping by the exporter is likely, without any further inquiry and irrespective of any relevant evidence before it.³⁶ In our view, an affirmative determination based exclusively upon the fact that the exporter did not respond to a notice of initiation, and which disregards entirely even the possibility that other relevant information might be in the record, is not supported by reasoned and adequate conclusions based on the facts before an investigating authority, inconsistently with Article 11.3.³⁷

Affirmative waivers

7.96 Under Section 751(c)(4)(A) of the Tariff Act and Section 351.218(d)(2)(i) of the Regulations, an exporter may file a statement of waiver declaring that it will not participate in the USDOC portion of a sunset review. In this situation, Section 751(c)(4)(B) directs the USDOC to make an affirmative finding of likelihood with regard to the exporter that explicitly waives its right to participate in the USDOC part of the sunset review.

7.97 Argentina asserts that Section 751(c)(4)(B) of the Tariff Act requires a finding of likelihood for an exporter that explicitly waives its right to participate in a sunset review and is inconsistent with the obligation to determine set out in Article 11.3 of the Agreement. According to Argentina, the investigating authority has the obligation to carry out an examination on the basis of positive evidence to make a reasoned determination even in a case of an affirmative waiver. It can not simply assume that dumping is likely to continue or recur without any analysis.³⁸

7.98 We note that in a sunset review where an exporter explicitly states that it intends not to participate in the review, it is likely to be much easier for the investigating authority to discharge its obligation to determine likelihood with respect to that particular exporter, compared with an exporter that fully cooperates with the investigating authority. This is because in most cases the bulk of the information concerning the issue of whether an exporter is likely to continue or recur to dump in the event of revocation of the order will be submitted by the exporter concerned.

7.99 We nevertheless consider that even in a case of affirmative waiver, the investigating authority's obligation to make a determination supported by reasoned and adequate conclusions based on the facts before it continues to apply. The investigating authority can not simply assume, without further inquiry, that dumping is likely to continue or recur because the exporter chose not to participate in the review. In this respect, we incorporate our above analysis (supra, paras. 7.94-7.95) regarding deemed waivers in cases where the exporter remains silent following the initiation of the sunset review. In our view, therefore, the provisions of US law relating to affirmative waivers are also inconsistent with the obligation to determine likelihood of continuation or recurrence of dumping under Article 11.3 of the Agreement.

Company-specific vs. order-wide sunset determinations

7.100 The United States submits that, under US law, the final likelihood determination in a sunset review is made on an order-wide basis for a country. Although US law mandates an affirmative finding of likelihood with respect to exporters that have waived their right to participate in a sunset review, it does not do so with respect to the order-wide determination.³⁹ Therefore, depending on whether there are exporters that have waived their right to participate, a US sunset review may include two steps: If no exporter has waived its right to participate, there will only be one sunset determination, which will be made on an order-wide basis. If, however, some exporters have waived their right to participate, then the USDOC will make an affirmative likelihood determination with respect to these exporters. The USDOC will then make a final order-wide sunset determination for the country.⁴⁰ Depending on the share of the exporters that have submitted a complete substantive response to the notice of initiation, that final determination will be made either through a full or an expedited sunset review. The United States, therefore, submits that the waiver provisions do not violate Article 11.3 of the Agreement because they do not determine, in and of themselves, the final outcome of a sunset review; they only determine the outcome of the first step.⁴¹

7.101 Even focusing on the final order-wide determination, we find the US argument unconvincing. As explained above, Article 11.3 requires that an investigating authority's determination that continuation or recurrence of dumping is likely must be supported by reasoned and adequate conclusions based on the facts before it. The United States concedes that company-specific likelihood determinations are "considered" when making an order-wide likelihood determination, and argues only that they do not determine, in and of themselves, the order-wide result.⁴² To the extent that the order-wide determination of likelihood is based in whole or in part upon a company-specific determination that was improperly established, we do not see how the order-wide determination can be supported by reasoned and adequate conclusions based on the facts before the investigating authority.

7.102 We note in this regard that a company-specific determination of likelihood may have a significant, if not conclusive, impact on an order-wide determination. Where, for example, the exporter that has waived participation is the only exporter, the company-specific result is likely to be conclusive. In fact, we asked the United States whether the USDOC had ever made an affirmative likelihood determination with respect to some exporters that had waived their right to participate, and then found no likelihood on an order-wide basis. The United States responded in the negative.⁴³ Nor has the United States cited a provision of US law that clearly states that the order-wide sunset determinations are independent from the company-specific determinations made pursuant to the waiver provisions.

Conclusion

7.103 In conclusion, we find that both affirmative and deemed waivers provisions of US law, i.e. Section 751(c)(4)(B) of the Tariff Act and Section 351.218(d)(2)(iii) of the USDOC's Regulations, are inconsistent with the investigating authorities' obligation to determine likelihood of continuation or recurrence of dumping under Article 11.3 of the Anti-Dumping Agreement.

(ii) Alleged Violations of Articles 6.1 and 6.2 of the Agreement

7.104 Argentina argues that deemed waivers provisions of US law, i.e. Section 351.218(d)(2)(iii) of the Regulations, violate Articles 6.1 and 6.2 of the Agreement because by precluding the USDOC from making the required likelihood determination under Article 11.3, these provisions deprive interested parties of their right to submit evidence and to defend their interests, inconsistently with Articles 6.1 and 6.2, respectively.

7.105 The United States asserts that no provision of US law prevents interested parties from submitting evidence to the investigating authority and from defending their interests in sunset reviews in conformity with Articles 6.1 and 6.2 of the Agreement.

7.106 We note that in the context of the present claim regarding US law, Argentina does not challenge affirmative waivers provisions and limits its claim to the deemed waivers provisions. We shall, therefore, base our analysis exclusively on the deemed waivers provisions.

Applicability of Articles 6.1 and 6.2 to Sunset Reviews

7.107 We note that Argentina's claim here is based on the assumption that Articles 6.1 and 6.2 of the Agreement apply to sunset reviews. According to Argentina, these provisions apply to sunset reviews by virtue of the cross-reference in Article 11.4. The United States contends that this cross-reference incorporates into sunset reviews only those provisions of Article 6 that deal with evidence and procedure, but does not specifically dispute that Articles 6.1 and 6.2 fall within this category.⁴⁴

7.108 The first issue before us is, therefore, whether the provisions of Articles 6.1 and 6.2 apply to sunset reviews.

7.109 Article 11.4 of the Anti-Dumping Agreement reads:

The provisions of Article 6 regarding evidence and procedure shall apply to any review carried out under this Article. Any such review shall be carried out expeditiously and shall normally be concluded within 12 months of the date of initiation of the review. (emphasis added)

7.110 We note that the cross-reference in Article 11.4 of the Agreement makes the provisions of Article 6 regarding evidence and procedure applicable to sunset reviews. We also note, however, that the cross-reference in Article 11.4 to Article 6 is qualified by the language "regarding evidence and procedure". Considering that the drafters often did not qualify the cross-references in other parts of the Agreement, we have to address the significance of this language with regard to the applicability in sunset reviews of paragraphs 1 and 2 of Article 6 cited by Argentina.

7.111 In our view, two possible approaches can be taken regarding the meaning and effect of this qualifying language in Article 11.4: First, it can be argued that on its face this language suggests that there may be provisions in Article 6 that deal with matters other than "evidence and procedure". Otherwise, the drafters would not have inserted this qualifying language in Article 11.4. Therefore, when faced with the question of whether certain individual paragraphs/provisions of Article 6 apply to sunset reviews, the treaty interpreter has to analyse the provision at issue with the qualifying language in Article 11.4 in mind to decide whether or not that provision deals with "evidence and procedure". The second approach could be that this language in Article 11.4 does not qualify the cross-reference to Article 6; it simply reiterates the fact that Article 6 contains rules that deal with "evidence and procedure". This is evidenced in the title of Article 6, which reads "Evidence".

7.112 In our view, Articles 6.1 and 6.2 deal with "evidence and procedure". Article 6.1 of the Agreement sets out rules regarding interested parties' right to be given notice of the information required by the investigating authority and an ample opportunity to submit evidence to the investigating authority. Article 6.2 provides that interested parties shall be given a full opportunity to defend their interests. Therefore, no matter which one of the above-cited two approaches is followed regarding the meaning of the qualifying language in Article 11.4, we consider that Articles 6.1 and 6.2 apply to sunset reviews.

Nature of obligations under Articles 6.1 and 6.2 of the Agreement

7.113 Having concluded that the provisions of Articles 6.1 and 6.2 of the Agreement apply to sunset reviews, we now turn to the provisions of these two articles.

7.114 Article 6.1 provides, in relevant part that:

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

7.115 We note that Article 6.1 stipulates generally that an investigating authority in a sunset review must give notice of the information that it requires from interested parties and allow interested parties ample opportunity to present in writing all evidence that the interested parties themselves deem relevant to the defence of their position in that sunset review. In its subparagraphs, Article 6.1 sets forth more specific procedural rights relating, inter alia, to questionnaires.

7.116 Article 6.2 provides:

Throughout the anti‑dumping investigation all interested parties shall have a full opportunity for the defence of their interests. To this end, the authorities shall, on request, provide opportunities for all interested parties to meet those parties with adverse interests, so that opposing views may be presented and rebuttal arguments offered. Provision of such opportunities must take account of the need to preserve confidentiality and of the convenience to the parties. There shall be no obligation on any party to attend a meeting, and failure to do so shall not be prejudicial to that party's case. Interested parties shall also have the right, on justification, to present other information orally.

7.117 Article 6.2 generally deals with the right of interested parties to defend their interests in an investigation and, by operation of Article 11.4, in a sunset review. More specifically, it provides that the investigating authority must provide, on request, interested parties an opportunity to meet other interested parties in the proceeding to hear their views and to make their own views known to them. In other words, Article 6.2 grants interested parties a right to participate in a hearing or otherwise to confront those parties with adverse interests. Further, it gives interested parties the right, on justification, to present other information orally.

Examination of the consistency of the deemed waivers provisions

7.118 Turning to the provisions of US law challenged by Argentina, i.e. those dealing with deemed waivers, we recall that the provision of US law that creates the deemed waiver category is Section 351.218(d)(2)(iii) of the USDOC's Regulations. This section considers exporters submitting incomplete responses to the notice of initiation of a sunset review and those that submit no response at all to have waived their right to participate in a sunset review. The consequence of having been deemed to waive the right to participate in a sunset review is the same as in the case of an affirmative waiver: an affirmative finding of likelihood of continuation or recurrence of dumping by the USDOC, as mandated by Section 751(c)(4)(B) of the Tariff Act. In this respect, the Statute does not distinguish between affirmative and deemed waivers.

7.119 In order to evaluate whether the provisions of US law regarding deemed waivers fall foul of Articles 6.1 and 6.2, we must first examine the precise implications of a deemed waiver on an exporter's ability to participate in a sunset review. We shall then analyse separately two factual situations that lead to a deemed waiver, i.e. failure to submit a complete response to the notice of initiation and failure to respond at all.

7.120 We recall that Section 751(c)(4)(B) of the Tariff Act requires the USDOC to make an affirmative finding of likelihood with respect to the exporter that has elected to waive its right to participate. Section 351.218(d)(2)(iii) of the USDOC's Regulations provides that an exporter that has not filed a complete substantive response to the notice of initiation of a sunset review is deemed to have waived its right to participate. As a result, that exporter will also be subject to an affirmative finding of likelihood by the USDOC.

7.121 We note that in a deemed waiver situation, US law does not allow the USDOC to take into account evidence submitted by an exporter in its incomplete submission when making its likelihood determination in respect of that exporter.⁴⁵ Further, it is clear that an exporter who has submitted an incomplete response is precluded from presenting any further evidence to the USDOC (and in any event, the USDOC would be precluded from taking it into account when making its likelihood determination with respect to that exporter). It is also clear that the exporter would not be permitted to participate in hearings or other procedures to confront other interested parties.⁴⁶ In fact, these conclusions flow naturally from the fact that the exporter is deemed to have waived participation in the review, and are not disputed by the United States.

7.122 The first situation that may lead to a deemed waiver is the submission by an exporter of an incomplete response to the notice of initiation. We recall that under US law, an exporter that is deemed to have waived its right to participate by submitting an incomplete response can not submit further evidence to the USDOC. Further, we also recall that the USDOC is required to reach an affirmative likelihood determination with respect to this exporter without considering evidence submitted in the exporter's incomplete response. It follows that the exporter is deprived of its right to submit evidence to the USDOC. This obviously runs foul of Article 6.1 of the Agreement, which requires that interested parties be given an ample opportunity to submit information to the investigating authority. We see no provision in the Agreement that allows such denial of the procedural rights provided for in Article 6.1 on the grounds that the exporter made an incomplete submission to the notice of initiation.

7.123 We also find US law to be inconsistent with Article 6.2 of the Agreement in that it denies an exporter that is deemed to have waived its right to participate in a sunset review by submitting an incomplete response to the notice of initiation of a sunset review the right to participate in a hearing or otherwise to confront those parties with adverse interests. We find no justification in the Agreement that would allow such a departure from the provisions of Article 6.2 on the grounds that that exporter has submitted an incomplete response to the notice of initiation.

7.124 The United States argues that the information contained in an incomplete submission of an exporter which is deemed to have waived its right to participate is nevertheless taken into consideration by the USDOC in its order-wide analysis for the country as a whole.⁴⁷ According to the United States, therefore, deemed waivers provisions of US law are not inconsistent with the provisions of Article 6.1 of the Agreement.

7.125 In our view, to the extent that the order-wide determination of likelihood is based in whole or in part upon a company-specific determination that was established inconsistently with Articles 6.1 and 6.2 of the Agreement, we do not see how the order-wide determination can be interpreted as being consistent with these two provisions. We consider that the violations of Articles 6.1 and 6.2 at the company-specific level would necessarily taint the USDOC's order-wide determination. Assuming arguendo that the USDOC does evaluate this information in its order-wide analysis consistently with the requirements of Articles 6.1 and 6.2, that can not cure the inconsistency stemming from the USDOC's failure to consider that information in the company-specific determination relating to the exporter submitting the information.

7.126 Further, the United States has not clarified to us in what ways and for what purpose information submitted by an exporter that is not being used in the company-specific determination conducted for that particular exporter can be used in the order-wide sunset determination for the country subject to the sunset review. For instance, in a sunset review where all exporters either failed to respond at all or submitted incomplete responses, the USDOC would have to make an affirmative likelihood determination with respect to all exporters by virtue of Section 751(c)(4)(B) of the Tariff Act, without taking into account the information contained in these exporters' incomplete submissions. Yet, according to the US argument, the USDOC would conduct another order-wide analysis for the country as a whole in which it would consider the information contained in the incomplete submissions of these exporters. We do not understand how usefully this information could be considered for the country as a whole, given that it would not be used with respect to the individual exporter submitting it. As we stated above (supra, para. 7.102), there has never been a sunset review in which the USDOC found no likelihood in the order-wide analysis where it had already found likelihood for some exporters under the waiver provisions. This supports our view that the US explanation regarding the consideration of the evidence submitted in the incomplete responses of some exporters does not reflect the US practice and is far from convincing.

7.127 The second situation that can lead to a deemed waiver is an exporter's failure to respond, within the specified time period, to a notice of initiation. Under US law, exporters that do not submit a timely substantive response to the notice of initiation of a sunset review are precluded from submitting any further evidence to the USDOC and from requesting, or participating in, hearings. In our view, the fact that an exporter failed to submit a substantive response to the notice of initiation at the outset of a sunset review can not justify depriving that exporter of its procedural rights under Articles 6.1 and 6.2 of the Agreement for the rest of the sunset review. We recognize that in many such cases the USDOC will be entitled to resort to facts available under Article 6.8 and Annex II of the Agreement, which, in turn, may lead to an unfavourable determination with respect to such an exporter. In that regard, the USDOC may decline, on a case-by-case basis, to take into consideration evidence submitted by that exporter if the submission is not made within a reasonable time.⁴⁸ Article 6.8 and Annex II do not, however, allow the USDOC to disregard all evidence submitted by an exporter in the period following the deadline for the submission of a substantive response to the notice of initiation on the ground that the exporter failed to make such a submission in the first place. The USDOC can only disregard information submitted by an exporter on the grounds, and by following the procedure, provided for in Article 6.8 and Annex II. It follows that the deemed waivers provisions of US law violate Articles 6.1 and 6.2 of the Agreement in this second factual situation too.

Conclusion

7.128 In conclusion, we find Section 351.218(d)(2)(iii) of the USDOC's Regulations relating to deemed waivers to be inconsistent with Articles 6.1 and 6.2 of the Agreement.⁴⁹

2. Alleged Irrefutable Presumption of Likelihood Under US Law/Practice

(a) Arguments of parties

(i) Argentina

7.129 Argentina asserts that US law as such is inconsistent with Article 11.3 because it contains an irrefutable presumption of likelihood of continuation or recurrence of dumping in sunset reviews where certain factual scenarios are met. According to Argentina, US law in this respect consists of Sections 751(c) and 752(c) of the Tariff Act of 1930, the provisions of the SAA relating to sunset reviews, and Section II.A.3 of the SPB. Argentina considers that the statutory provisions cannot be analysed in isolation from the SAA and the SPB. Argentina points out that the SAA and the SPB provide the USDOC with a simple checklist as the basis for the latter's decision as to whether there is a likelihood of continuation or recurrence of dumping. The SPB contains three basic factual scenarios that would support a finding of likelihood of continuation or recurrence of dumping in a sunset review. Therefore, rather than carrying out a prospective analysis as required under Article 11.3 of the Agreement, the USDOC simply checks whether one of these three scenarios is present, and if so, concludes that there is a likelihood of continuation or recurrence of dumping should the measure be lifted. Argentina argues that USDOC has a consistent practice which demonstrates that the USDOC attributes a decisive relevance to the factual scenarios set out in the SPB.

7.130 Independently from its challenge to US law, Argentina also argues that the USDOC's consistent practice as such is inconsistent with Article 11.3 of the Agreement because it embodies the WTO-inconsistent irrefutable presumption regarding the likelihood of continuation or recurrence of dumping determinations in sunset reviews. For instance, according to Argentina, in all sunset reviews in which a domestic interested party participated the USDOC found likelihood of continuation or recurrence of dumping. According to Argentina, "practice that prescribe[s] a standard can be subject to WTO challenge."⁵⁰ Therefore, this practice is also susceptible to a WTO challenge.

7.131 If the Panel rejects Argentina's claim regarding the alleged irrefutable presumption under US law/practice, Argentina requires the Panel to find that the United States failed to administer its sunset review laws and regulations in a manner consistent with Article X:3(a) of the GATT 1994.

(ii) United States

7.132 The United States asserts that neither the SPB nor the SAA contains an irrefutable presumption regarding the likelihood of continuation or recurrence of dumping determinations in sunset reviews.⁵¹ Even if they did, the United States contends that these two instruments do not constitute "measures" for purposes of WTO dispute settlement proceedings, nor are they binding legal instruments under US law. They therefore can not be challenged in the WTO. Similarly, the United States submits that the USDOC's practice concerning sunset reviews cannot be challenged under WTO law because practice as such is not a measure.

(b) Arguments of third parties

(i) Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu

7.133 Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu submits that the SAA and the SPB are not binding legal instruments under US law. Therefore, there does not seem to be an irrefutable presumption of likelihood of continuation or recurrence of dumping under US law. Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu contends that no conclusive inference can be drawn from the USDOC's practice in sunset reviews.

(c) Evaluation by the Panel

(i) Status of the Sunset Policy Bulletin

7.134 Argentina submits that US law is inconsistent with Article 11.3 of the Agreement in that it contains an irrefutable presumption regarding the likelihood of continuation or recurrence of dumping determinations in sunset reviews. In this respect, Argentina considers that US law consists of Sections 751(c) and 752(c) of the Tariff Act of 1930, the provisions of the SAA relating to sunset reviews, and Section II.A.3 of the SPB. In Argentina's view, to discern the meaning and operation of US law regarding this alleged presumption, the relevant provisions of these three legal instruments should be read and analysed in conjunction with one another.

7.135 As an initial matter, the United States submits that the SPB does not constitute a measure that can be challenged in WTO dispute settlement proceedings because it is not a measure that has a functional life of its own under US law. The United States further argues that even if the Panel considers the SPB as a measure, it does not mandate WTO-inconsistent action because it is not a mandatory measure. We understand the United States to argue that the SPB can not possibly violate a WTO obligation because it is either not a measure at all, or because in any event it is not a mandatory measure.

7.136 Turning first to the US argument that the SPB is not a measure of the type that may be subject to dispute settlement challenge, we note that the Appellate Body in US � Corrosion-Resistant Steel Sunset Review has made it clear that the concept of a "measure" that can be subject to a WTO challenge is very broad. According to the Appellate Body, "any act or omission attributable to a WTO Member can be a measure of that Member for purposes of dispute settlement proceedings"⁵² (footnote omitted). The Appellate Body further stated that any legal instrument under a WTO Member's law could also be challenged as a measure before a WTO panel irrespective of the way in which it operates in individual cases.⁵³ Given that the Appellate Body in US � Corrosion-Resistant Steel Sunset Review was addressing precisely the issue of the SPB, there can be no doubt that the Appellate Body considers the SPB to be a measure that can be subject to WTO dispute settlement, and we will proceed accordingly.

7.137 We next turn to the US contention that the SPB in any event cannot be found to be inconsistent with the WTO Agreement because it is not a mandatory measure. In advancing this argument, the United States is relying upon a series of GATT and WTO dispute settlement panels that have found that only those provisions of a Member's law that mandate GATT/WTO-inconsistent action or preclude GATT/WTO-consistent action can be found to be GATT/WTO-inconsistent.⁵⁴ Under this approach, if the challenged provision provides the executive branch with discretion, rather than requiring it to follow a certain course of action, then that provision can not be found to be inconsistent as such.⁵⁵ Similarly, if the challenged provision does not have legal force, it could not be found to require WTO-inconsistent action. Of course, the application of that provision could nevertheless be found to be inconsistent if the discretion inherent in the provision is exercised in a WTO-inconsistent manner.

7.138 We note that the Appellate Body has so far not pronounced its views about the status of the mandatory/discretionary test that has been applied by WTO panels. To the contrary, the Appellate Body has to date made clear, even in cases where the mandatory/discretionary test was at issue, that it was not ruling on the validity of the test.⁵⁶ It has, however, reviewed the "application" of that test by WTO panels. In its decision in US � Corrosion-Resistant Steel Sunset Review, the Appellate Body disagreed with the panel's finding that "the Sunset Policy Bulletin is not a mandatory legal instrument obligating a certain course of conduct and thus can not, in and of itself, give rise to a WTO violation".⁵⁷ In this context, although the Appellate Body did not consider that the appeal in that dispute required it to "undertake a comprehensive examination" of the mandatory/discretionary distinction, it observed that the import of the distinction could vary from case to case, and cautioned against the application of the distinction in a "mechanistic fashion".⁵⁸

7.139 Having reversed the finding of the panel in US � Corrosion-Resistant Steel Sunset Review, the Appellate Body, in Section VI.E of its report, considered whether it could itself complete the analysis and rule on the claim in question, which was essentially the same claim now being pursued by Argentina.⁵⁹ It explained that a panel's analysis regarding a claim aimed at a WTO Member's law as such must start with the text of the challenged measure. If the text alone fails to clarify the issue, then the panel can look to other evidence. In this context, the Appellate Body recalled its earlier finding in US-Carbon Steel that in such cases evidence about the consistent application of the challenged measure can be taken into account by panels.⁶⁰ The Appellate Body discussed in some detail the issues it would have to resolve and the factual findings by the panel that would be required in order for it to rule on the claim in question. The Appellate Body concluded that the panel had not examined the nature and meaning of the relevant section of the SPB, nor had it considered evidence submitted by the complainant seeking to establish the consistent application of that section. The Appellate Body concluded that it was unable to rule on that claim because of the absence of relevant factual findings by the panel.⁶¹

7.140 We note that the Appellate Body's findings and its underlying reasoning appear to represent a significant shift from the mandatory/discretionary distinction previously applied by a number of GATT/WTO panels. The Appellate Body did not, however, clearly state whether this decision meant that the mandatory/discretionary test has from now on to be applied in a different manner. We are therefore left with a certain degree of uncertainty regarding the content and the applicability of this test in WTO dispute settlement proceedings. It is, however, clear to us from Section VI.E of the Appellate Body's Report that we must analyse the substance of Argentina's claim on the basis of the provisions of the SPB cited by Argentina. It is only as part of our substantive analysis of the SPB that we may decide whether it mandates WTO-inconsistent behaviour or precludes WTO-consistent behaviour. We shall refrain from applying the mandatory/discretionary test in the abstract to determine whether the SPB can give rise to a WTO violation or not. In the words of the Appellate Body, this would amount to applying the mentioned test in a "mechanistic fashion" and would not be acceptable.⁶²

(ii) Standard regarding presumptions

7.141 Regarding the WTO-consistency of a legal instrument that contains presumptions concerning likelihood determinations in sunset reviews, the Appellate Body in US � Corrosion-Resistant Steel Sunset Review pointed out 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.⁶³ (emphasis added)

...

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.⁶⁴ (footnote omitted, emphasis added)

7.142 The Appellate Body then went on and opined that legal provisions that give a determinative, rather than probative, value to certain factors would be inconsistent with Article 11.3 of the Agreement.⁶⁵ In this regard, the Appellate Body stated:

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 USDOC 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.⁶⁶ (emphasis added)

7.143 The Appellate Body has made it clear that Article 11.3 requires that a likelihood determination in a sunset review be based on a sufficient factual basis, taking into consideration the circumstances of the case at issue. It can not be based on presumptions that contain pre-determined conclusions for certain factual scenarios. In other words, a scheme that attributes a determinative/conclusive value to certain factors in sunset determinations is likely to violate Article 11.3.

7.144 With these considerations in mind, we will analyse the provisions of US law cited by Argentina to decide whether they, either individually or in conjunction with one another, give rise to the presumption alleged by Argentina. We shall commence our analysis with the legal provisions cited by Argentina. If the text of the legal provisions cited by Argentina does not allow us to reach a conclusion, then we shall also evaluate evidence that Argentina submitted regarding the alleged consistent application by the USDOC of these provisions of US law.

(iii) Examination of the Measures Cited by Argentina

7.145 Argentina generally argues that the alleged irrefutable presumption under US law consists of the provisions of the Tariff Act, the SAA and the SPB. As far as the Tariff Act is concerned, Argentina cited Sections 751(c) and 752(c) in its first written submission whereas it only cited 752(c) in its second submission. We note that although Argentina argues that the Panel should analyse these three legal instruments in conjunction with one another in deciding whether this irrefutable presumption exists under US law, it mainly focuses on the provisions of the SAA and the SPB in developing its arguments.⁶⁷ We nevertheless commence our analysis with the relevant provisions of the Tariff Act and then analyse the SAA and the SPB. In doing so, we shall evaluate the relevant provisions of these three measures individually and in conjunction with one another in deciding whether the alleged presumption exists.

The Statute and the Statement of Administrative Action

7.146 The provisions of the Tariff Act that are relevant to the present claim are found in Section 752(c), which provides in relevant parts:

(c) Determination of likelihood of continuation or recurrence of dumping

(1) In general

In a review conducted under section 1675(c) of this title, the administering authority shall determine whether revocation of an antidumping duty order or termination of a suspended investigation under section 1673c of this title would be likely to lead to continuation or recurrence of sales of the subject merchandise at less than fair value. The administering authority 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 antidumping duty order or acceptance of the suspension agreement.

(2) Consideration of other factors

If good cause is shown, the administering authority shall also consider such other price, cost, market, or economic factors as it deems relevant.⁶⁸ (emphasis added)

7.147 We note that the Statute provides that in determining whether dumping is likely to continue or recur in the case of revocation of the order, the USDOC has to consider two factors: "historical dumping margins" and "import volumes". The Statute also states that, where good cause is shown, the USDOC may � and in fact "shall" � consider other factors. Although these provisions seem to limit the factual basis of the USDOC's likelihood determinations, in the sense that they require a showing of good cause in order for other information to be considered, in our view they fall short of attaching a conclusive value to these two factors.⁶⁹ The Statute does not stipulate that the USDOC is required to limit the factual scope of its analysis to these two factors in all cases. To the contrary, it specifically states that if good cause is shown factors other than dumping margins and import volumes shall also be considered by the USDOC.

7.148 We note that the premise of Argentina's claim is that US law contains certain scenarios, the satisfaction of which would lead to an affirmative likelihood determination by the USDOC per se. The three scenarios that Argentina cites are found in Section II.A.3 of the SPB, as we discuss below (infra, paras. 7.152-7.154). We also note that these scenarios are premised on the same two factors that are mentioned in Section 752(c) of the Tariff Act of 1930, i.e. "import volumes" and "dumping margins". However, it is important to note that the manner in which these two factors are being used in the SPB's factual scenarios differs from the way Section 752(c) of the Tariff Act of 1930 treats them. The Statute directs the USDOC to evaluate these two factors in each sunset review. On its face, however, it does not require the USDOC to attach a decisive weight to them with respect to the likelihood determination. In fact, apart from the fact that it requires the USDOC to consider these two factors in its likelihood determinations, the Statute does not mention any factual scenario in which these two factors would play a certain role such that it would ultimately lead to an affirmative likelihood determination. In our view, therefore, the Statute on its face not only does not support Argentina's allegations regarding an irrefutable presumption of likelihood, but to the contrary seems to indicate that no such irrefutable presumption exists.

7.149 We note that, under US law, the SAA provides an authoritative interpretation of the Statute.⁷⁰ Therefore, in order to interpret the above statutory provisions we shall take into consideration the following relevant provisions of the SAA:

(3) Likelihood of Dumping

Section 221 of the bill adds section 752(c) which establishes standards for determining the likelihood of continuation or recurrence of dumping. Under section 752(c)(1), Commerce will examine the relationship between dumping margins, or the absence of margins, and the volume of imports of the subject merchandise, comparing the periods before and after the issuance of an order or the acceptance of a suspension agreement. For example, declining import volumes accompanied by the continued existence of dumping margins after the issuance of an order may provide a strong indication that, absent the order, dumping would be likely to continue, because the evidence would indicate that the exporter needs to dump to sell at pre-order volumes. In contrast, declining (or no) dumping margins accompanied by steady or increasing imports may indicate that foreign companies 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.

The Administration believes that the existence of dumping margins after the order, or the cessation of imports after the order, is highly probative of the likelihood of continuation or recurrence of dumping. If companies continue to dump with the discipline of the order in place, it is reasonable to assume that dumping would continue if the discipline were removed. If imports cease after the order is issued, it is reasonable to assume that the exporters could not sell in the United States without dumping and that, to re-enter the U.S. market, they would have to resume dumping.

New section 752(c)(2) provides that, for good cause shown, Commerce also will consider other information regarding, price, cost, market or economic factors it deems relevant. Such factors might include the market share of foreign producers subject to the antidumping proceeding; changes in exchange rates, inventory levels, production capacity, and capacity utilisation; any history of sales below cost of production; changes in manufacturing technology of the industry; and prevailing prices in relevant markets. In practice, this will permit interested parties to provide information indicating that observed patterns regarding dumping margins and import volumes are not necessarily indicative of the likelihood of dumping. The list of factors is illustrative, and the Administration intends that Commerce will analyze such information on a case-by-case basis.⁷¹ (emphasis added)

7.150 We note that the SAA also provides that certain patterns in dumping margins and import volumes following the imposition of the measure are "highly probative" or provide a "strong indication" of the likelihood of continuation or recurrence of dumping in the event of revocation of the order. This language suggests that these factors are important but not necessarily determinative. Further, the SAA also makes it clear that other factors can also be considered by the USDOC if good cause is shown by the exporters involved in the sunset review as to why that other factor is relevant to the USDOC's likelihood determination. The SAA even provides an illustrative list of such other factors, which includes changes in exchange rates, inventory levels and production capacity. The SAA specifically states that this will permit interested parties to provide information indicating that observed patterns regarding dumping margins and import volumes "are not necessarily indicative" of likelihood, and indicates that the USDOC "will analyze such information on a case-by-case basis". Thus, not only does the SAA contain nothing that would cause us to disregard the plain meaning of the Statute, but to the contrary the SAA confirms that the Statute does not provide for the irrefutable presumption alleged by Argentina. It follows that our analysis concerning the Statute (read in conjunction with the SAA) ends on the basis of its text. We therefore do not need to go further to evaluate other factors, such as the alleged consistent application of the Statute, in order to complete our analysis regarding the Statute.

Conclusion

7.151 The Tariff Act of 1930, interpreted in light of the SAA, does not contain an irrefutable presumption of likelihood for purposes of USDOC's sunset determinations.

The Sunset Policy Bulletin

Relevant provisions of the Sunset Policy Bulletin

7.152 Finally, we note the following provisions of the SPB:

II Sunset Reviews in Antidumping Proceedings

A. Determination of Likelihood of Continuation or Recurrence of Dumping

...

3. Likelihood of Continuation or Recurrence of Dumping

�

[T]he Department normally will determine that revocation of an antidumping order or termination of a suspended dumping investigation is likely to lead to continuation or recurrence of dumping where�

(a) dumping continued at any level above de minimis after the issuance of the order or the suspension agreement, as applicable;

(b) imports of the subject merchandise ceased after issuance of the order or the suspension agreement, as applicable; or

(c) dumping was eliminated after the issuance of the order or the suspension agreement, as applicable, and import volumes for the subject merchandise declined significantly.

The Department recognizes that, in the context of a sunset review of a suspended investigation, the data relevant to the criteria under paragraphs (a) through (c), above, may not be conclusive with respect to likelihood. Therefore, the Department may be more likely to entertain good cause arguments under paragraph II.C in a sunset review of a suspended investigation.

4. No Likelihood of Continuation or Recurrence of Dumping

�

[T]he Department normally will determine that revocation of an antidumping order or termination of a suspended dumping investigation is not likely to lead to continuation or recurrence of dumping where dumping was eliminated after issuance of the order or the suspension agreement, as applicable, and import volumes remained steady or increased. Declining margins alone normally would not qualify because the legislative history makes clear that continued margins at any level would lead to a finding of likelihood. See section II.A.3, above. In analyzing whether import volumes remained steady or increased, the Department normally will consider companies' relative market share. Such information should be provided to the Department by the parties.

The Department recognizes that, in the context of a sunset review of a suspended investigation, the elimination of dumping coupled with steady or increasing import volumes may not be conclusive with respect to no likelihood. Therefore, the Department may be more likely to entertain good cause arguments under paragraph II.C in a sunset review of a suspended investigation.

...

C. Consideration of Other Factors

Section 752(c)(2) of the Act provides that, if the Department determines that good cause is shown, the Department also will consider other price, cost, market or economic factors in determining the likelihood of continuation or recurrence of dumping. The SAA at 890, states that such other factors might include,

the market share of foreign producers subject to the antidumping proceeding; changes in exchange rates, inventory levels, production capacity, and capacity utilization; any history of sales below cost of production; changes in manufacturing technology in the industry; and prevailing prices in relevant markets.

The SAA at 890, also notes that the list of factors is illustrative, and that the Department should analyze such information on a case-by-case basis.

Therefore, the Department will consider other factors in AD sunset reviews if the Department determines that good cause to consider such other factors exists. The burden is on an interested party to provide information or evidence that would warrant consideration of the other factors in question. With respect to a sunset review of a suspended investigation, where the Department determines that good cause exists, the Department normally will conduct the sunset review consistent with its practice of examining likelihood under section 751(a) of the Act.⁷² (emphasis added)

7.153 We note that Section II.A.3 of the SPB provides that the USDOC will "normally" make an affirmative likelihood determination in cases where one of three factual scenarios is present. These factual scenarios are based on the same two factors that the Tariff Act, as interpreted by the SAA, directs the USDOC to consider in each sunset review, i.e. "dumping margins" and "import volumes". We note, however, that these factors are being treated by the SPB in a manner that differs from the framework within which the Tariff Act treats them. As we stated above, although Section 752(c) of the Act requires that the USDOC consider these two factors in all sunset reviews, in no way does it establish a presumption whereby the existence of these factors would lead to an affirmative likelihood determination per se. The SPB, however, presents these two factors in three different factual settings, which will "normally" lead to an affirmative finding of likelihood.

7.154 Section II.A.3 of the SPB contains three scenarios. First is the existence of a dumping margin above de minimis; the second one relates to the case where imports cease following the imposition of the measure; and the third is where dumping disappears but import volumes decline following imposition. On its face, Section II.A.3 seems to contain a presumption of likelihood in cases where one of these factual scenarios is present.

7.155 According to the standard that we outlined above (supra, paras. 7.141-7.144), the issue here is whether the SPB directs the USDOC to treat the mentioned two factors, as presented in these three factual scenarios, as determinative/conclusive or simply indicative. If we find that the SPB requires the USDOC to treat them as conclusive it will follow that Section II.A.3 of the SPB is inconsistent with Article 11.3 of the Agreement. Alternatively, if these factors are not conclusive but simply indicative we will find Section II.A.3 to be consistent with Article 11.3.

7.156 In this context, we note that the word "normally" in the chapeau of Section II.A.3 qualifies the provisions of this section. It provides that in cases where one of these three factual scenarios is present the USDOC will "normally" find likelihood. The existence of "normally" suggests that the SPB envisions that there may be situations where likelihood may not be found even if one of these three scenarios is present. The United States asserts that the use of "normally" is incompatible with the notion of an irrefutable presumption.⁷³ However, we find no clarification in the SPB which supports the proposition that the word "normally" provides the USDOC with such discretion. To the contrary, we note that Section II.A.3 indicates that in certain circumstances its provisions relating to these three factual scenarios may not be conclusive. In this respect, Section II.A.3 provides:

The Department recognizes that, in the context of a sunset review of a suspended investigation, the data relevant to the criteria under paragraphs (a) through (c), above, [dumping margins and import volumes] may not be conclusive with respect to likelihood.⁷⁴ (emphasis added)

7.157 This portion of Section II.A.3 indicates that the provisions relating to the three factual scenarios may not be conclusive in the context of the sunset reviews of a suspended investigation, and arguably it is for this reason that the term "normally" was in Section II.A.3. This further suggests that these scenarios may be conclusive in the context of the sunset reviews of final anti-dumping duties. Yet, in our view, the SPB is not sufficiently clear as to whether the provisions of Section II.A.3 relating to the three factual scenarios are determinative for purposes of the USDOC's likelihood determinations.⁷⁵ Given our finding above that neither the Tariff Act nor the SAA contains any presumption regarding the USDOC likelihood determinations, we have not found any provision in these two measures that would clarify this point either.

Consistent application of the Sunset Policy Bulletin

7.158 Given that neither the SPB itself nor the Tariff Act or the SAA resolves the issue of whether Section II.A.3 of the SPB envisions that dumping margins and import volumes should be treated as conclusive in sunset reviews, we shall analyse evidence submitted by Argentina regarding the manner in which the provisions of the mentioned section have so far been implemented by the USDOC. In exhibits ARG-63 and ARG-64, Argentina submitted empirical evidence regarding the USDOC's consistent application of Section II.A.3 of the SPB. ARG-63 covers the sunset reviews carried out by the USDOC until September 2003, whereas ARG-64 covers the period October-December 2003. Argentina asserts that these statistics demonstrate that the USDOC has relied on one of the three factual scenarios set out in Section II.A.3 of the SPB in every sunset review in which it found likelihood. The United States contends that these statistics fail to demonstrate the alleged irrefutable presumption. According to the United States, if at all, only statistics relating to the sunset reviews in which the interested parties contested the existence of likelihood can provide guidance. The United States argues that out of the 291 sunset reviews cited in ARG-63 only 35 were in this category. The United States acknowledges that the USDOC found likelihood in all of these 35 sunset reviews but contends that that fact alone does not prove the irrefutable presumption alleged by Argentina. More specifically, the United States submits:

It may well be that in these 35 cases, the evidence presented a scenario that satisfied one or more of the criteria that the Sunset Policy Bulletin identifies as indicia of likelihood. If so, the respondent interested parties may have been unable to demonstrate that the facts of their case called for a departure from the �normal� conclusion. It could be the case that one or more, or maybe all, of these parties may have been in the situation where they were not capable of competing in the US market without dumping. We simply do not know.⁷⁶

7.159 Argentina disagrees with the US view that only sunset reviews in which interested parties contested the existence of likelihood can be taken into account. According to Argentina, interested parties' participation is immaterial regarding the investigating authority's obligation to determine likelihood under Article 11.3. Argentina argues, however, that even accepting the US position in this respect, the fact that the USDOC found likelihood in these 35 sunset reviews on the basis of the factual scenarios of the SPB still proves Argentina's claim.⁷⁷

7.160 We asked the United States to explain its views as to whether the statistics provided by Argentina in ARG-63 and ARG-64 were factually correct. The United States submitted the following response:

The United States has not examined each and every sunset review cited by Argentina in Exhibit ARG-63 and Exhibit ARG-64. To the extent that the United States has addressed these exhibits in its written submissions, the United States has no reason to believe that the overall total of sunset reviews conducted and the ultimate outcomes in those sunset reviews as alleged by Argentina is significantly flawed.⁷⁸ (emphasis added)

7.161 In response to questioning from the Panel, the United States stated that these statistics were irrelevant to the question of whether the USDOC perceived Section II.A.3 of the SPB as conclusive in its sunset determinations. According to the United States, these statistics can at best indicate a repeated pattern of similar responses to a set of circumstances, which, according to the United States and as found by a WTO panel, can not be challenged as such in WTO dispute settlement proceedings. The United States also contends that the data submitted by Argentina focuses only on the results of individual sunset reviews conducted by the USDOC and ignores the particular circumstances of each review.⁷⁹

7.162 Regarding the issue of whether the consistent application of a Member's law can be taken into account by WTO panels in cases dealing with an alleged WTO-inconsistency of that law, we find support in the following finding of the Appellate Body in US-Carbon Steel:

Thus, a responding Member's law will be treated as WTO-consistent until proven otherwise. The party asserting that another party's municipal law, as such, is inconsistent with relevant treaty obligations bears the burden of introducing evidence as to the scope and meaning of such law to substantiate that assertion. Such evidence will typically be produced in the form of the text of the relevant legislation or legal instruments, which may be supported, as appropriate, by evidence of the consistent application of such laws, the pronouncements of domestic courts on the meaning of such laws, the opinions of legal experts and the writings of recognized scholars. The nature and extent of the evidence required to satisfy the burden of proof will vary from case to case.⁸⁰ (footnote omitted, emphasis added)

This finding was also cited and confirmed by the Appellate Body in US � Corrosion-Resistant Steel Sunset Review.⁸¹

7.163 Therefore, given that the text of the SPB, or the other legal instruments challenged by Argentina, does not answer the question of whether Section II.A.3 of the SPB directs the USDOC to treat evidence concerning "dumping margins" and "import volumes" as conclusive in its likelihood determinations, we consider it appropriate to analyse evidence submitted by Argentina regarding the consistent application of these provisions in deciding whether Section II.A.3 of the SPB is inconsistent with Article 11.3 of the Agreement.

7.164 We note that ARG-63 and ARG-64 contain, inter alia, data on the name of the sunset review, the date of the USDOC's determination, whether domestic interested parties or exporters participated in the review, the type of sunset review conducted, the outcome of the review and the legal basis of the determination. In addition, Argentina also provided the texts of the individual determinations in these sunset reviews.

7.165 At the outset, it should be noted that we based our analysis on the statistics regarding the determinations made before the date of initiation of these panel proceedings, i.e. Argentina's request for consultations.⁸² An analysis of the statistics provided by Argentina demonstrates that the USDOC applied the contested provisions of the SPB in each sunset review and found likelihood of continuation or recurrence in each one of these sunset reviews on the basis of one of the three scenarios contained in Section II.A.3 of the SPB. We recall that the United States neither challenged nor disproved the factual correctness of these statistics. We therefore find that the evidence submitted by Argentina in exhibit ARG-63 demonstrates that the USDOC does in fact perceive the provisions of Section II.A.3 of the SPB as conclusive regarding the issue of likelihood of continuation or recurrence of dumping in the case of revocation of an order. As explained above, this runs counter to the requirement of Article 11.3 to carry out a rigorous examination and to base its determinations on a sufficient factual basis.

Conclusion

7.166 On the basis of the above considerations, we find the provisions of Section II.A.3 of the SPB to be inconsistent with Article 11.3 of the Agreement.

7.167 We find it important to mention that although our finding of inconsistency is based on the evidence stemming from the consistent application of Section II.A.3 of the SPB, it does not necessarily mean that the complaining party has to produce statistical evidence that demonstrates a particular pattern of behaviour in a certain number or percentage of cases. As the Appellate Body stated, "[t]he nature and extent of the evidence required to satisfy the burden of proof will vary from case to case".⁸³ We find that in the circumstances of the present proceedings the evidence submitted by Argentina in ARG-63 is sufficient to demonstrate that Section II.A.3 of the SPB directs the USDOC to treat evidence with respect to "import volumes" and "dumping margins" as conclusive for purposes of the latter's sunset determinations.

7.168 Having found Section II.A.3 of the SPB to be inconsistent with Article 11.3, we need not, and do not, consider it necessary to rule on Argentina's claim that the US practice in this respect is also inconsistent with Article 11.3 for the same reasons.

7.169 Similarly, having found Section II.A.3 of the SPB to be WTO-inconsistent in this respect, we do not address Argentina's alternative claim under Article X:3(a) of the GATT 1994.

Impact of the finding regarding the Sunset Policy Bulletin on the consistency of the Statute

7.170 We find it necessary to address the issue of whether our finding of inconsistency with respect to the SPB has any impact on the status of the Tariff Act in this regard. We recall that Argentina requested that the Panel analyse the provisions of the Tariff Act, the SAA and the SPB in conjunction with one another with respect to the present claim. We also recall our finding above that Section 752(c) of the Tariff Act, interpreted in light of the relevant provisions of the SAA, does not contain any presumption with regard to the USDOC's likelihood determinations. To the contrary, we found that both the Tariff Act and the SAA state clearly that the USDOC can, and in fact "shall", take into account other relevant factors upon good cause shown.

7.171 In our view, the SPB does not purport to interpret the provisions of the Tariff Act. This is evidenced in the preamble of the SPB, which reads in relevant part:

The proposed policies are intended to complement the applicable statutory and regulatory provisions by providing guidance on methodological or analytical issues not explicitly addressed by the statute and regulations.⁸⁴ (emphasis added)

7.172 The preamble states that the SPB is designed to complement, not interpret, the provisions of the Tariff Act. Therefore, the provisions of the SPB in general, and those of Section II.A.3 in particular, can not change the meaning of the relevant provisions of the Tariff Act, including Section 752(c) that we analysed and found to be consistent with Article 11.3 of the Agreement for purposes of the present claim.

7.173 Assuming arguendo that the SPB did purport to interpret the provisions of the Tariff Act, our conclusion would not change. We found above (supra, para. 7.148) that the relevant provision of the Tariff Act, i.e. Section 752(c), does not contain any presumption and in fact explicitly provides that the USDOC shall consider factors other than import volumes and dumping margins in its likelihood determinations where good cause is shown. This demonstrates that the Statute contains an explicit provision as to the factors that the USDOC has to consider in its likelihood determinations. It follows that the SPB's provisions can not in any event change the plain meaning of the Tariff Act in this regard.

3. US Law's Standard for the Likelihood of Continuation or Recurrence of Injury Determinations in Sunset Reviews

(a) Arguments of parties

(i) Argentina