2. Arguments of Third Parties

(a) European Communities

7.200 The European Communities contends that the USDOC's decision to conduct an expedited sunset review simply because of Siderca's share in the volume of total imports of the subject product into the United States was inconsistent with Article 11.3 of the Agreement. Since this decision also resulted in the exclusion of relevant evidence it also violated Articles 6.1 and 6.2.

3. Evaluation by the Panel

(a) Relevant facts

7.201 In addition to Argentina, three other countries were subject to the USDOC part of the OCTG sunset review.⁹⁴ With respect to all four countries, the USDOC concluded that the revocation of the orders would likely lead to the continuation or recurrence of dumping.

7.202 With regard to all of these four countries, the USDOC's likelihood determination was based on the existence of dumping margins and reduced import volumes following the imposition of the original anti-dumping duties.⁹⁵ The USDOC decided that since dumping had continued over the life of the orders and import volumes had dropped significantly as compared to the pre-order levels, dumping was likely to continue or recur in the event of revocation.

7.203 There were no affirmative waivers with respect to Argentine exporters subject to this sunset review. In other words, no Argentine exporter explicitly waived participation. The only Argentine exporter that cooperated with the USDOC and for which an individual dumping margin was calculated in the original investigation was Siderca. Following the imposition of the order Siderca stopped exporting OCTG to the United States. However, the USDOC determined that other Argentine exporter(s) had exported the subject product to the United States during the period of application of the measure. The USDOC did not identify these exporter(s) in its final determination, nor did it point to evidence in the record establishing the identity of these exporter(s).⁹⁶

7.204 Since these other Argentine exporter(s) did not submit a response to the notice of initiation of this sunset review, they were deemed to have waived their right to participate under Section 351.218(d)(2)(iii) of the USDOC's Regulations. It is therefore factually undisputed that deemed waivers provisions of US law were applied in this sunset review with respect to one or more Argentine exporter(s) other than Siderca.

7.205 Following the initiation of the sunset review at issue, Siderca was the only Argentine exporter that submitted a substantive response to the notice of initiation. We recall that according to Section 351.218(e)(1)(ii)(A) of the USDOC's Regulations, in cases where the exporters from a particular country that submit a complete substantive response to the notice of initiation of a sunset review altogether account for less than 50 per cent of the total exports of the subject product from that country during the five-year period of application of the measure concerned, that aggregate response is deemed to be inadequate. An inadequate response triggers the conduct of an expedited � as opposed to full - sunset review. Accordingly, although Siderca's substantive response to the notice of initiation was complete, i.e. it contained all the information the US law required, since Siderca's share in the total exports of OCTG from Argentina during the five-year period of application of the measure at issue was below 50 per cent, the USDOC conducted an expedited sunset review. Following the submission of its substantive response to the notice of initiation, Siderca did not make any further submissions to the USDOC.

7.206 In its sunset determination with regard to Argentina, the USDOC considered the information submitted in Siderca's complete substantive response to the notice of initiation as well as some other evidence from other sources, such as import statistics. Having found that dumping continued over the life of the measure and that import volumes declined significantly, in its order-wide determination with respect to Argentina, the USDOC determined that dumping would be likely to continue or recur should the duty be revoked.

(b) Alleged violations of Articles 11.3 and 2 of the Agreement

7.207 As an initial matter, we note Argentina's assertion that the application of the waiver provisions and the conduct of an expedited sunset review violated Article 11.3 of the Agreement because the USDOC did not make the requisite likelihood determination of Article 11.3 when concluding that dumping was likely to continue or recur should the duty be revoked.⁹⁷

7.208 Regarding the issue of whether or not the USDOC made a likelihood determination in this sunset review, we note that the contents of the USDOC's Issues and Decision Memorandum clearly reveals that such a determination was made. Therefore, there is no doubt that the USDOC made a determination as such. The question is whether that determination conformed to the provisions of the Agreement. With that in mind, we now turn to the various aspects of the USDOC's sunset determination that are being challenged by Argentina.

7.209 Argentina contends that in the instant sunset review, the USDOC based its likelihood of continuation or recurrence of dumping determinations on past data. It did not gather fresh evidence that would support a forward-looking likelihood analysis. Instead, the USDOC merely relied on the dumping margin from the original investigation as the basis of its likelihood determination in the instant sunset review.

7.210 The United States submits that in its likelihood determination in the instant sunset review, the USDOC relied on the dumping margins found in the original investigation, the depressed import volumes and the information submitted by the interested parties. According to the United States, Article 11.3 of the Agreement requires nothing more.

7.211 The issue is whether the USDOC's likelihood determination in this sunset review rested on a sufficient factual basis.⁹⁸ In this respect, we recall our finding above that on its face Article 11.3 does not impose a particular methodology to follow in sunset determinations. However, as we stated above, 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.

7.212 With that in mind, we turn to the USDOC's Issues and Decision Memorandum which reads in relevant parts:

[T]he Department indicated that normally it will determine that revocation of an antidumping order 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, (b) imports of the subject merchandise ceased after the issuance of the order, (c) dumping was eliminated after the issuance of the order and import volumes for subject merchandise declined significantly.⁹⁹ (emphasis added)

...

We note that there have been above de minimis margins for the investigated companies throughout the history of the orders, except for one company covered by the order on Japan.¹⁰⁰(emphasis added)

...

Based on this analysis, the Department finds that the existence of dumping margins after the issuance of the orders is highly probative of the likelihood of continuation or recurrence of dumping. Therefore, given that dumping continued after the issuance of the orders, average imports continued at levels far below pre-order levels from 1995 through 1999, and respondent interested parties waived their right to participate in these reviews or failed to submit adequate substantive responses, we determine that dumping is likely to continue if the orders were revoked.¹⁰¹ (emphasis added)

...

In the Argentine case, there has been no decline in dumping margins coupled with an increase in imports. Rather, absent an administrative review, the dumping margin from the original investigation is the only indicator available to the Department with respect to the level of dumping. Because 1.27 [sic] per cent is above the 0.5 per cent de minimis standard applied in sunset reviews, we find that dumping has continued over the life of the Argentine order and is likely to continue if the order were revoked.¹⁰² (emphasis added)

7.213 We note that the USDOC's likelihood determination in the instant sunset review is premised on two findings: (a) that dumping continued above de minimis levels over the life of the order, and (b) that import volumes declined following the imposition of the order.

7.214 Argentina asserts that the USDOC's finding that dumping had continued over the life of the order was devoid of factual support because Siderca had not made any consumption shipments to the United States during this period and no administrative reviews were carried out to determine whether shipments made by other Argentine exporters were dumped. Therefore, the USDOC could not reasonably conclude that dumping continued over the life of the order.

7.215 The United States contends that the USDOC did not use the original dumping margin as the basis of its sunset determination in the instant sunset review. The USDOC made its likelihood determination on the basis of the existence of dumping during the life-span of the measure at issue. Following that likelihood determination, the USDOC sent the original dumping margin to the USITC as the margin that was likely to continue or recur.

7.216 In order to clarify the basis of the USDOC's determination that dumping had continued over the life of the measure, we put the following question to the United States following our first meeting with the parties:

The Panel notes that the USDOC's Issues and Decision Memorandum in the instant sunset review mentions that it was determined that dumping continued over the life of the measure in question and that the margin of dumping did not decline in the same period. Please explain the factual basis of that determination, in particular, please indicate whether the USDOC calculated a dumping margin for Siderca or any other Argentine exporter after the imposition of the original measure.¹⁰³

7.217 The United States responded as follows:

In the sunset review, Commerce found that dumping continued to exist during the five years preceding the sunset review because there were shipments of Argentine OCTG during four of those five years and dumping duties were assessed on those same imports.¹⁰⁴ (footnote omitted)

7.218 We note that parties' views differ as to what was the basis of the USDOC's finding that dumping continued over the life of the measure. Argentina argues that the USDOC's likelihood determination was based on the 1.36 per cent margin of dumping from the original investigation whereas the United States submits that it was based on the existence of the shipments of the subject product to the United States and the continued collection of the duty, not the margin from the original investigation per se.

7.219 In our view, the above-quoted parts of the USDOC's Issues and Decision Memorandum demonstrate that the USDOC relied on the existence of the original dumping margin when concluding that dumping continued over the life of the order. The issue therefore is whether the existence of a dumping margin from the original investigation can be interpreted to mean that dumping continued over the life of the measure. In our view, it can not. The original dumping margin reflects the result of the dumping margin calculations in the original investigation, which establish the basis for the anti-dumping measure to be imposed in that investigation. The existence of the original dumping margin can not be the basis of a factual determination that dumping continued over the life of the measure. Exporters subject to the measure might have changed their export or home market prices, or, their cost of production might have changed. Thus, if an investigating authority relies upon the existence of dumping over the life of the measure as part of its sunset determination, it has to have an adequate factual basis for so concluding. This can be, inter alia, a determination made as part of a duty assessment process carried out under Article 9 of the Agreement, or a review under Article 11.2. In our view however, the original determination of dumping by itself cannot represent a sufficient factual basis for concluding that dumping continued during the life of the measure, let alone representing an adequate factual basis to conclude that dumping is likely to continue or recur after the expiry of the order. The purpose of a sunset review is to examine whether the facts continue to justify the imposition of an anti-dumping measure. The USDOC, however, did not engage in that inquiry because it simply relied on the existence of the dumping margin from the original investigation.

7.220 Assuming arguendo that the basis of the USDOC's finding that dumping continued over the life of the measure was, as the United States asserts, the continued shipments of the subject product and the continued collection of the duty, rather than the existence of the original dumping margin per se, our analysis would not change. In our view, the fact that some imports of the subject product continued to be shipped from Argentina to the United States and that anti-dumping duties continued to be collected on these shipments over the life of the order does not represent an adequate factual basis for the proposition that dumping continued in that period.¹⁰⁵

(i) Conclusion

7.221 We recall that the USDOC's likelihood determination in this sunset review was based on two factual findings, i.e. first dumping continued over the life of the measure and second import volumes declined following the imposition. We have found that the factual basis of the first one is not proper. We therefore conclude that the USDOC's likelihood determination in the instant sunset review was inconsistent with Article 11.3 of the Anti-Dumping Agreement.

7.222 We recall that in the OCTG sunset review, deemed waivers provisions of US law were applied to Argentine exporter(s) other than Siderca. The implication of this is that the USDOC was required to make an affirmative likelihood determination with respect to these exporter(s). We recall that we found deemed waivers provisions to be inconsistent with the investigating authorities' obligation to determine likelihood of continuation or recurrence of dumping under Article 11.3. Although the USDOC's final determination does not refer to these company-specific determinations, logically these determinations must be a relevant part of the factual basis of the USDOC's overall country-wide likelihood determination in the OCTG sunset review. In our view, the application of deemed waivers provisions to Argentine exporters other than Siderca invalidated the factual basis of the overall country-wide determination. Therefore, in addition to our above-stated considerations, we also find that the application of these provisions in the OCTG sunset review was inconsistent with Article 11.3 of the Agreement.

7.223 We note that Argentina also asserts that the dumping margin from the original investigation was calculated through the so-called methodology of zeroing and therefore could not be relied upon by the USDOC in its likelihood determination in this sunset review. It follows, in Argentina's view, that the USDOC violated Articles 2.4 and 11.3 of the Agreement by relying on this margin in its likelihood determinations. Having found that the USDOC erred in this sunset review by relying on the existence of this dumping margin in its determination that dumping continued over the life of the measure, we need not, and do not, evaluate various aspects of the methodology through which that original dumping margin was obtained.

(c) Alleged violations of Article 6 of the Agreement

(i) Nature of the obligations in Articles 6.1, 6.2, 6.8 and Annex II of the Agreement and their applicability in sunset reviews

7.224 Argentina contends that the application of waiver provisions and the conduct of an expedited sunset review in the OCTG sunset review violated Articles 6.1 and 6.2 of the Agreement. According to Argentina, the conduct of an expedited review also violated Article 6.8 and Annex II of the Agreement.

7.225 We note that Argentina's claims here are based on the assumption that Articles 6.1, 6.2 and 6.8 and Annex II 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, however, argues that this cross-reference incorporates into sunset reviews only those provisions of Article 6 that deal with evidence and procedure. According to the United States, the same holds true for the provisions of Annex II; they also apply to sunset reviews to the extent they concern evidence and procedure.

7.226 Therefore, the initial issue that we need to resolve is whether Articles 6.1, 6.2 and 6.8 and Annex II apply to sunset reviews. In this context, we recall our above observation regarding the nature of the obligations set out in Articles 6.1 and 6.2 of the Agreement (supra, paras. 7.113-7.117). We also recall our finding that these two articles apply to sunset reviews because they contain rules that deal with evidence and procedure as set out in Article 11.4 of the Agreement. In addition to Articles 6.1 and 6.2, we consider that Article 6.8 and Annex II also apply to sunset reviews because their provisions concern "evidence and procedure". Article 6.8 explains under what circumstances an investigating authority is allowed to base its determinations on the facts available. Annex II contains detailed provisions to be followed by investigating authorities when resorting to facts available under Article 6.8.

(ii) Examination of the consistency of the USDOC's determination with Articles 6.1 and 6.2 of the Agreement

7.227 Argentina argues that Article 6.1 was violated by the USDOC because the conduct of an expedited review and the application of the waiver provisions prevented Siderca from submitting evidence to the USDOC. According to Argentina, the USDOC ignored the information submitted by Siderca.¹⁰⁶

7.228 We recall that in the OCTG sunset review, waiver provisions of US law were not applied to Siderca. Certainly Siderca did not explicitly waive its right to participate. Nor was it deemed by the USDOC to have waived participation because it submitted a complete substantive response to the notice of initiation. Although Argentine exporters other than Siderca were deemed to have waived their right to participate, that did not, and in fact could not possibly, have an effect on Siderca's procedural rights under Article 6.1 in this sunset review. Therefore, we disagree with Argentina's statement that the application of waiver provisions deprived Siderca from submitting evidence to the USDOC.

7.229 It is factually correct that in the OCTG sunset review the USDOC carried out an expedited review. The issue therefore is what effect the conduct of an expedited sunset review had on Siderca's procedural rights under Article 6.1.

7.230 We note that the USDOC's final Issues and Decision Memorandum clearly demonstrates that the information Siderca submitted in its substantive response to the notice of initiation was considered by the USDOC.¹⁰⁷ Argentina has not directed our attention to any fact which demonstrates that the USDOC prevented Siderca from submitting evidence or that the information submitted by Siderca was not taken into consideration by the USDOC.

7.231 We also note that in addition to its substantive response to the notice of initiation, Siderca had the opportunity to submit a rebuttal brief to the USDOC, which it did not.¹⁰⁸ Siderca could also submit its views to the USDOC as to the USDOC's adequacy determination and the appropriateness of conducting an expedited sunset review in this case, which it chose not to.¹⁰⁹ We do not know whether it would have been enough to satisfy the requirements of Article 6.1 had Siderca used these other opportunities to submit information to the USDOC. However, the fact is that it did not.

7.232 Argentina also submits that the application of waiver provisions and the conduct of an expedited sunset review in the OCTG sunset review violated Article 6.2 of the Agreement because this precluded Siderca from defending its interests as set out in Article 6.2.

7.233 We recall that 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. (emphasis added)

7.234 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, if so requested, must provide interested parties an opportunity to meet those parties with adverse interests, so that opposing views may be presented and rebuttal arguments offered.

7.235 In response to questioning from the Panel regarding the procedural rights conferred upon interested parties in expedited sunset reviews, the United States stated that hearings were not generally held in expedited sunset reviews.¹¹⁰ Given the explicit provision of Article 6.2 that hearings have to be arranged when so requested by interested parties, it becomes clear that in the OCTG sunset review Siderca was subjected to a procedure that fell short of the requirements of Article 6.2 of the Agreement in respect of hearings. The reason why the USDOC carried out an expedited sunset review was Siderca's share in the total imports of the subject product. In other words, had exporters that had exported the subject product to the United States in the five-year period of application of this measure made a complete submission in response to the notice of initiation Siderca would have had the right to require that the USDOC arrange a hearing to allow interested parties to exchange their views with others. In our view, the fact that certain exporters do not participate in a sunset review can not justify depriving cooperating exporters of their procedural rights under Article 6.2.

Conclusion

7.236 We therefore find that the USDOC acted consistently with Article 6.1 of the Agreement, but inconsistently with Article 6.2 in the OCTG sunset review.

(iii) Alleged violations of Article 6.8 and Annex II of the Agreement in the OCTG review

7.237 Argentina contends that the USDOC's conduct of an expedited sunset review violated Article 6.8 and Annex II of the Agreement because the USDOC applied facts available to Siderca on the grounds that Siderca had failed the adequacy test of US law that triggered the expedited sunset review. According to Argentina, Article 6.8 does not permit the use of facts available on such grounds. Siderca fully cooperated with the USDOC, thus the USDOC could not possibly use facts available against Siderca. Argentina also asserts that the USDOC did not use facts available in the manner set out in Article 6.8 and Annex II.

7.238 The United States submits that the USDOC did not apply facts available with respect to Siderca. Rather, it applied facts available in the context of its order-wide likelihood determination. The United States also contends that as part of facts available the USDOC used the information Siderca submitted in its substantive response to the notice of initiation. According to the United States, therefore, the USDOC did not act inconsistently with Article 6.8 or Annex II of the Agreement.¹¹¹

7.239 We note that in the OCTG sunset review, because of Siderca's zero per cent share in the total imports of the subject product, the USDOC carried out an expedited sunset review in which it based its determinations on facts available. We also note that Section 351.308(f) of the USDOC's Regulations, the provision of US law regarding the information to be used by the USDOC in an expedited sunset review where facts available are used, confirms the US assertion that the USDOC applied facts available vis-�-vis Argentina, and not Siderca.¹¹² It is therefore factually clear that in the instant sunset review the USDOC applied facts available on an order-wide basis and not vis-�-vis Siderca. We have seen nothing in the record of this sunset review that would suggest the contrary. We finally note that the USDOC's Issues and Decision Memorandum states that as part of facts available, information submitted by Siderca was considered by the USDOC in its determinations.¹¹³

7.240 Therefore, the issue is whether the USDOC violated Article 6.8 and therefore Annex II of the Agreement in its use of facts available on an order-wide basis in the OCTG sunset review. In our view, it did not.

7.241 We note that the USDOC used facts available in its likelihood determination for Argentina. This was a determination that covered, in addition to Siderca, other Argentina exporter(s) that had exported the subject product to the United States during the period of application of this measure. In our view, the impact of facts available, if any, was on these other Argentina exporters who did not cooperate with the USDOC.¹¹⁴ This is because by using facts available, the USDOC reached a likelihood determination for all Argentine exporters. Since these other exporters had not made themselves known to the USDOC, the USDOC used the information submitted by Siderca and other information in the record in reaching a conclusion with respect to these exporters.

7.242 We see no harm caused to Siderca because of the USDOC's use of facts available. The information submitted in Siderca's only submission to the USDOC, i.e. its substantive response to the notice of initiation, was considered by the USDOC. Further, as we noted above, Siderca chose not to use two additional opportunities that were available under US law to submit information, or make comments, to the USDOC.

7.243 We note that as part of this claim Argentina also argues that the USDOC acted inconsistently with Article 6.9 of the Agreement. The nature of Argentina's argument in connection with this article is not, however, entirely clear. In its second written submission, Argentina asserted that the USDOC's determination based on facts available violated, among others, Article 6.9 of the Agreement.¹¹⁵ In its first oral submission, Argentina submitted that the USDOC violated Article 6.9 by not disclosing the essential facts forming the basis of the USDOC's decision to carry out an expedited sunset review.¹¹⁶

7.244 We consider that Argentina's argumentation in this regard has not been developed such that it would allow us to address and resolve it as an independent claim. Even if it had been sufficiently substantiated by Argentina, resolving such a claim would not, in our view, have a significant contribution to the resolution of the dispute at issue generally. We note that we have found certain substantive inconsistencies in the USDOC's determinations in the OCTG sunset review. Having made these findings of inconsistency regarding the substance of the USDOC's determinations, entertaining another claim under Article 6.9 of the Agreement, which is purely procedural, would not have any significant value added with respect to the United States' bringing its measure into conformity with its WTO obligations. We therefore decline to make any ruling in this regard.

Conclusion

7.245 Under these circumstances, therefore, we find that the USDOC did not act inconsistently with Article 6.8 and Annex II of the Agreement in its use of facts available.

(d) Alleged violations of Article 12 of the Agreement

7.246 Argentina asserts that the USDOC violated Article 12.2 of the Agreement by failing to explain the basis of its sunset determinations in its final determination. First, Argentina submits that the USDOC did not explain whether the basis of its determinations was the waiver provisions of US law or the provisions relating to facts available. Second, Argentina submits that the USDOC acted inconsistently with Articles 12.2.1 and 12.2.2 by failing to include in its final determination fresh information collected during the sunset review regarding Siderca's dumping margins.

7.247 The United States submits that the USDOC's final determination contains the bases for the USDOC's likelihood determination. According to the United States, Article 12.2.2 does not impose any substantive obligation on the investigating authorities in sunset reviews.

7.248 We note that Article 12 is entitled "Public Notice and Explanation of Determinations". It sets forth the investigating authorities' obligation to give public notice of certain decisions/determinations made at various stages of an investigation. Paragraph 3 of Article 12 states that the provisions of that Article apply mutatis mutandis to reviews under Article 11. Therefore, the provisions of Article 12 apply to sunset reviews with necessary changes that the nature of sunset reviews may necessitate.

7.249 With that in mind, we now turn to Argentina's first argument, that it is impossible to discern the basis for the USDOC's determination. We note that regarding the content of public notices, Article 12.2 of the Agreement that Argentina cites in this context provides in relevant part:

Each such notice shall set forth, or otherwise make available through a separate report, in sufficient detail the findings and conclusions reached on all issues of fact and law considered material by the investigating authorities.

7.250 In light of the obligation set forth in Article 12.2, we shall inquire whether the USDOC's final determination in the instant sunset review contained sufficient information as to the USDOC's findings and conclusions on the relevant issues of fact and law in the instant sunset review. In this context, we note the following portions of the USDOC's Issues and Decision Memorandum:

Although the Department received a substantive response on behalf of Siderca, the Department explained in its August 22, 2000 adequacy determination that because, during the period 1995 to 1999, the average annual share of Siderca's exports of the subject merchandise vis-�-vis the total Argentine exports of the subject merchandise during the same period was significantly below the fifty-per cent threshold...the Department determined Siderca's substantive response to be inadequate.¹¹⁷

In the instant sunset 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.¹¹⁸

Therefore, given that dumping continued after the issuance of the orders, average imports continued at levels far below pre-order levels from 1995 through 1999, and respondent interested parties waived their right to participate in these review or failed to submit adequate substantive responses, we determine that dumping is likely to continue if the orders were revoked.¹¹⁹

In the Argentine case, however, the Department determined to conduct an expedited review because of its finding that Siderca did not provide adequate substantive responses.¹²⁰ (emphasis added)

7.251 We note that the memorandum generally provides that Argentina was treated differently from the other countries subject to the sunset review by stating that Siderca did not provide an adequate substantive response to the notice of initiation, whereas the respondents in other countries waived their right to participate in the sunset review by failing to file a complete substantive response. However, in the second paragraph quoted above, the USDOC seems to state that all interested parties waived their right to participate in this sunset review by not submitting an adequate substantive response. This seems to be at odds with the above-outlined structure of US law regarding waivers (supra, para. 7.84) and the submission of an adequate response to the notice of initiation in sunset reviews (supra, note 40). In response to questioning from the Panel, the United States pointed out that the phrase "this constitutes a waiver of participation" refers to the interested parties that failed to submit a substantive response to the notice of initiation whereas Siderca, as an interested party that did submit such a response, was not deemed to have waived its right.

7.252 In light of the above, we are of the view that the existence of this inconsistent statement regarding the legal basis under US law on which Siderca was treated by the USDOC does not render this determination inconsistent with Article 12.2 of the Agreement because when viewed in its entirety the memorandum states that Siderca and the other respondents were treated differently and that Siderca had not waived its right to participate in this sunset review.

7.253 Regarding the second argument raised by Argentina, that the USDOC failed to comply with Article 12.2.2 because its final determination did not contain fresh evidence regarding its likelihood of continuation or recurrence of dumping determinations, we note that Argentina is implying that Article 12.2 imposes certain substantive obligations on investigating authorities. However, neither Article 12.2 nor the other paragraphs of Article 12 contain substantive obligations regarding the conduct of sunset reviews. The substantive requirements of the Agreement regarding sunset reviews have to be found in the substantive provisions such as Article 11.3 and the treaty interpreter should refrain from interpreting procedural provisions of the Agreement, such as Articles 12 and 6, in a way to impose additional substantive obligations on investigating authorities. In this context, we find useful the following finding of the panel in US � Corrosion-Resistant Steel Sunset Review:

In other words, by finding that the provisions of Article 6.10 may contain evidentiary and procedural obligations that are, in general, applicable in sunset reviews, we do not (and cannot) find that Article 6.10, by virtue of the cross-reference in Article 11.4, operates so as to super-impose an additional substantive requirement of re-calculation of the likely dumping margin in sunset reviews, a requirement that not even Japan argues is found in the text of Article 11.3, or elsewhere in the text of the Anti-Dumping Agreement. We, as a treaty interpreter, are not allowed to derive substantive obligations out of the application of the evidentiary and procedural provisions of Article 6.¹²¹ (footnote omitted)

We note that the panel's view on this issue was also upheld by the Appellate Body.¹²²

(i) Conclusion

7.254 We therefore decline to sustain Argentina's claim under Article 12 of the Agreement.

E. CLAIMS RELATING TO THE USITC'S LIKELIHOOD DETERMINATION IN THE OCTG SUNSET REVIEW

1. Introduction

7.255 The USITC part of the OCTG sunset review concerned five countries, i.e. Argentina, Italy, Japan, Korea and Mexico. Because both the domestic industry and the respondent interested party groups submitted adequate responses, the USITC carried out a full sunset review.¹²³ The USITC carried out a cumulative analysis with respect to these five countries.¹²⁴ The USITC determined that material injury would be likely to continue or recur in the case of revocation of the order on OCTG from Argentina, Italy, Japan, Korea and Mexico.¹²⁵

2. Temporal Aspect of the USITC's Likelihood Determination

(a) Arguments of parties

(i) Argentina

7.256 Argentina submits that the application of Sections 752(a)(1) and (5) of the Tariff Act in the instant sunset review was inconsistent with Articles 11.3 and 3 of the Agreement. According to Argentina, the USITC's determination merely cites the relevant provisions of the Act and the SAA and does not specify what "reasonably foreseeable time" means for purposes of the instant sunset review.

(ii) United States

7.257 The United States argues that because Article 11.3 is silent as to the time-frame relevant to sunset reviews, the USITC's determination can not be inconsistent with Articles 3 and 11.3 of the Agreement on the grounds that it did not specify the time-frame on which it was based.

(b) Evaluation by the Panel

7.258 Argentina argues in the first place that the fact that the USITC applied Sections 752(a)(1) and (5) of the Tariff Act in the instant sunset review made its determinations WTO-inconsistent. We recall, however, our above finding that the US statutory provisions relating to the time-frame on the basis of which the USITC makes its likelihood determinations in sunset reviews are not WTO-inconsistent (supra, para. 7.193). We can not, therefore, find that their application in the OCTG sunset review were necessarily WTO-inconsistent.

7.259 Argentina argues that even if the US statutory provisions containing this standard are WTO-consistent, the USITC failed to apply these provisions properly to the evidence before it in the instant sunset review. Argentina asserts that the USITC acted inconsistently with Article 11.3 of the Agreement by failing to explain the parameters of the reasonably foreseeable period of time on the basis of which it found injury to be likely to continue or recur.¹²⁶ We recall our analysis that Article 11.3 does not require investigating authorities to specify the time-frame on which they are basing their likelihood of continuation or recurrence of injury determinations (supra, para. 7.184). Article 11.3 provides that the investigating authority must establish on the basis of a sufficient factual basis that there is a likelihood of continuation or recurrence of injury. We therefore see no WTO-inconsistency in the USITC's failure to specify the time period that it considered to be reasonably foreseeable for purposes of its likelihood determinations in the instant sunset review.

(i) Conclusion

7.260 In light of the above considerations, we decline Argentina's claim regarding the application by the USITC of Sections 752(a)(1) and (5) of the Tariff Act in the OCTG sunset review.

3. Standard Applied by the USITC

(a) Arguments of parties

(i) Argentina

7.261 Argentina submits that the USITC failed to apply the "likely" standard of Article 11.3 in the sunset review at issue. According to Argentina, although the relevant provision of the US Statute and the USITC's determination in the instant sunset review contains the word "likely", the USITC in fact applied a different standard in the instant sunset review. According to Argentina, "likely" means "probable". In this sunset review, however, the USITC applied a "possibility" standard instead of the proper likely standard of Article 11.3 in respect of its determinations regarding the likely volume of dumped imports, the likely price effect of such imports and their likely impact on the US domestic industry. Thus, the USITC determined that injury would be likely to continue or recur on the basis of facts that demonstrated that a certain outcome was possible, rather than probable. Argentina also argues that regarding these three aspects, the USITC failed to carry out an objective examination on the basis of positive evidence, inconsistently with Articles 11.3, 3.1 and 3.2 of the Agreement.

7.262 Argentina also alleges violations of Articles 3.4 and 3.5 of the Agreement in the instant sunset review.

(ii) United States

7.263 The United States submits that in the instant sunset review the USITC applied the "likely" standard provided for under Article 11.3. The United States disagrees with Argentina's view that likely only means probable. According to the United States, Article 11.3 of the Agreement uses the word "likely", and not "probable", hence finding a decisive synonym for likely would not shed more light on the meaning of that term.

7.264 The United States also disputes Argentina's allegations regarding the standard applied with respect to the three aspects of the USITC's sunset determination in this case, the likely volume of dumped imports, the likely price effect of such imports and their likely impact on the US domestic industry. The United States generally argues that Article 3 � including Article 3.1 � does not apply to sunset reviews. According to the United States, the dictates of Article 3.1 are potentially incompatible with the nature of sunset determinations under Article 11.3. The United States nevertheless submits that the violations alleged by Argentina with regard to Article 3.1 are groundless because the USITC's determinations demonstrate that it did not act inconsistently with these provisions.

7.265 The United States also disputes Argentina's claims regarding Articles 3.4 and 3.5.

(b) Arguments of third parties

(i) European Communities

7.266 The European Communities agrees with Argentina that the provisions of Article 3 of the Anti-Dumping Agreement apply mutatis mutandis in the context of sunset reviews. According to the European Communities, given the introductory wording of Article 3.1, the absence of an explicit cross-reference in Article 11.3 to Article 3 is irrelevant. The European Communities also agrees with Argentina that the required standard in sunset determinations is �likely�, not �possible�. According to the European Communities, the USITC did not correctly apply the �likely� standard in the instant sunset review.

(ii) Japan

7.267 Japan argues that the provisions of Article 3 apply to injury determinations in sunset reviews under Article 11.3. Therefore, the requirements of Articles 3.1, 3.2, 3.4 and 3.5 have to be fulfilled in such reviews.

(c) Evaluation by the Panel

(i) Applicability of Article 3 in sunset reviews

7.268 We note that the majority of Argentina's claims challenging the USITC's determinations in the OCTG sunset review are premised on various paragraphs of Article 3 of the Agreement, solely or together with Article 11.3. Parties' views as to the applicability of Article 3 in sunset reviews, however, diverge. Argentina submits generally that Article 3 of the Agreement applies to sunset reviews. In this regard, Argentina relies mainly on the provisions of footnote 9 of the Agreement that specifies the three types of injury, and on previous Appellate Body decisions. According to the United States, however, Article 3 does not apply to sunset reviews carried out under Article 11.3 because the nature of the inquiry is different under these two provisions. Article 3 applies to a determination of "injury" whereas the focus of the inquiry in a sunset review is a determination of the "likelihood of continuation or recurrence of injury".

7.269 Given the central role of Article 3 in Argentina's arguments raised in support of its claims relating to the USITC's actions in the OCTG sunset review and the divergence between parties' views on this matter, we find it useful to outline at this juncture our views regarding the applicability of Article 3 in sunset reviews.

7.270 We note that neither Article 11.3 nor any other paragraph of Article 11 contains any provision as to whether the provisions of Article 3 in general, or those of certain specific paragraphs thereof in particular, apply to sunset reviews. Nor does Article 3 contain any cross-reference to that effect. However, there are textual indications in Article 3 that may suggest that its provisions define the scope of injury determinations throughout the Agreement. For instance, the introductory phrase in Article 3.1 ("for purposes of Article VI of GATT 1994") and the phrase "[u]nder this Agreement" in footnote 9 indicate that the concept of injury should be understood in the manner set out in Article 3 throughout the Agreement. In this context, we also incorporate our above analysis regarding the textual analysis of Articles 3 and 11.3 of the Agreement (supra, paras. 7.184-7.191).

7.271 We note that the panel in US � Corrosion-Resistant Steel Sunset Review also opined that the term injury should be understood in the manner described in Article 3. However, that panel concluded that these phrases indicated that Article 3's scope of application was not limited to investigations, hence it also generally applied to sunset reviews.¹²⁷ That panel then went on and analysed whether a particular paragraph of Article 3, namely paragraph 3, was applicable in sunset reviews and decided that because of its text Article 3.3 was an exception to its general observation and hence it did not apply to sunset reviews.

7.272 To the extent that that panel found that the above-cited phrases found in Article 3 and footnote 9 thereto make the provisions of Article 3 generally applicable to sunset reviews, we disagree. We note that the nature of the inquiries in investigations and sunset reviews is significantly different. Regarding the differences between original investigations and sunset reviews, we note the following observation of the Appellate Body in US � Corrosion-Resistant Steel Sunset Review:

In considering the nature of a likelihood determination in a sunset review under Article 11.3, we recall our statement in US � Carbon Steel, in the context of the SCM Agreement, that:

� original investigations and sunset reviews are distinct processes with different purposes. The nature of the determination to be made in a sunset review differs in certain essential respects from the nature of the determination to be made in an original investigation.¹²⁸

This observation applies also to original investigations and sunset reviews under the Anti-Dumping Agreement. In an original anti-dumping investigation, investigating authorities must determine whether dumping exists during the period of investigation. In contrast, in a sunset review of an anti-dumping duty, investigating authorities must determine whether the expiry of the duty that was imposed at the conclusion of an original investigation would be likely to lead to continuation or recurrence of dumping.¹²⁹

7.273 In our view, the Appellate Body's reasoning regarding the differences between original investigations and sunset reviews pertaining to dumping determinations equally applies to the injury side of investigations and sunset reviews. The focus of the injury determinations in investigations is to determine the existence of injury during the period of investigation whereas sunset reviews are about the likelihood of continuation or recurrence of injury in the event of revocation of an order that has already been in place for up to five years. Just as the Appellate Body stated that an investigating authority is not required to make a dumping determination in a sunset review¹³⁰, we consider that an investigating authority is not required to make an injury determination in a sunset review. It follows, then, that the obligations set out in Article 3 do not normally apply to sunset reviews.

7.274 If, however, an investigating authority decides to conduct an injury determination in a sunset review, or if it uses a past injury determination as part of its sunset determination, it is under the obligation to make sure that its injury determination or the past injury determination it is using conforms to the relevant provisions of Article 3.¹³¹ For instance, Article 11.3 does not mention whether an investigating authority is required to calculate the price effect of future dumped imports on the prices of the domestic industry. In our view, this means that an investigating authority is not necessarily required to carry out that calculation in a sunset review. However, if the investigating authority decides to do such a calculation, then it would be bound by the relevant provisions of Article 3 of the Agreement. Similarly, if, in its sunset injury determinations, an investigating authority uses a price effect calculation made in the original investigation or in the intervening reviews, it has to assure the consistency of that calculation with the existing provisions of Article 3.

7.275 However, this does not mean that we will disregard the provisions of Article 3 in our analysis regarding the USITC's determinations in the instant review. Just as the Appellate Body in US � Corrosion-Resistant Steel Sunset Review pointed out regarding the definition of dumping set out in Article 2.1 of the Agreement¹³², we consider that throughout the Agreement � including sunset reviews � the term injury should be understood and interpreted as set out in Article 3 of the Agreement, including footnote 9 thereto. The Agreement contains no other definition of injury made for purposes of sunset reviews. Therefore, although we find that the provisions of various paragraphs of Article 3 do not necessarily apply in sunset reviews, we shall in our analysis be mindful of the definition of injury set out in footnote 9 and the parameters of injury determinations as generally set out in Article 3. We shall find guidance in Article 3 where appropriate.

7.276 It follows from the above-outlined analysis that we will entertain Argentina's claims under Article 3 only to the extent the USITC made an injury determination � as opposed to a likelihood of continuation or recurrence of injury � in the OCTG sunset review, or in cases where the USITC used an injury determination from the original OCTG investigation or the intervening reviews and Argentina alleges that the USITC failed to make the necessary corrections to these original injury determinations to make them consistent with the current provisions of Article 3.

(ii) Claims relating to the USITC's determinations regarding the likely volume of dumped imports, their likely price effect and their likely impact on the US domestic industry

7.277 Argentina contends that the USITC applied a standard different from the "likely" standard of Article 11.3 in the instant sunset review. According to Argentina, the USITC applied a "possibility" standard instead of the "likely" standard of Article 11.3 of the Agreement which according to Argentina means "probable". In the view of Argentina, the fact that the USITC did not apply the likely standard can be seen through an analysis of its determinations relating to the likely volume of dumped imports, their likely price effect and their likely impact of the US domestic industry. Argentina also asserts that the USITC violated Articles 3.1 and 3.2 of the Agreement in its determinations relating to these three factors because it failed to carry out an objective examination on the basis of positive evidence. Argentina concedes, however, that the US Statute and the USITC's sunset determination contains the word "likely".

7.278 We note that Argentina's claim regarding the USITC's injury analysis with respect to the likely volume of dumped imports, the likely price effect of such imports and their likely impact of the US domestic industry is two-fold. First, Argentina asserts that with regard to each one of these three factors the USITC failed to apply the likely standard of Article 11.3. Second, Argentina contends with respect to the same three aspects of the USITC's determinations that the USITC failed to conduct an objective examination on the basis of positive evidence, inconsistently with Articles 3.1 and 3.2. Hence, in the context of this claim Argentina claims violations of Article 11.3 as well as Articles 3.1 and 3.2 of the Agreement.

7.279 In accordance with our above-framed approach regarding the applicability of Article 3 of the Agreement to sunset reviews, we find it useful to first inquire whether the USITC made a determination of injury or a determination of the likelihood of continuation or recurrence of injury in the instant sunset review. We note that the USITC's determination makes clear that it is about the likelihood of continuation or recurrence of injury, rather than a determination of injury.¹³³ Nor does Argentina argue that what the USITC did in this case was a determination of injury. Similarly, Argentina does not assert that in the OCTG review the USITC used an injury determination from the original OCTG investigation that is now inconsistent with the provisions of Article 3 of the Agreement. We will therefore only entertain Article 11.3 aspects of Argentina's claim and decline those relating to Article 3.

7.280 However, we note that the crux of Argentina's claim is that the USITC either did not establish facts properly or did not evaluate them objectively or did not base them on a sufficient factual basis. We recall that the above-described standard of review (supra, paras. 7.1-7.5) applicable to the present proceedings provides that we should find that the USITC acted in a WTO-consistent way if it established the facts properly and evaluated them in an objective and unbiased manner. It follows that the substance of Argentina's claim under Articles 3.1 and 3.2, the alleged failure to carry out an objective examination on the basis of positive evidence, directly overlaps with the standard of review that we shall apply in this case. For the purposes of the present claim, the fact that we will not consider Article 3 aspects of Argentina's claim here will not bring about any practical difference in terms of the outcome of our analysis.

7.281 We will apply, therefore, the above-described standard of review in determining whether the USITC acted consistently with the Agreement regarding these three aspects of its determinations in the instant sunset review. If we find that the USITC's establishment of facts was proper and that these facts were evaluated in an unbiased and objective manner, we will not find an inconsistency even if we might have reached a different conclusion on the basis of the same facts. Given that the issue is whether the USITC's likelihood determination was based on a proper establishment of facts and on an unbiased and objective evaluation thereof, in case we find that either one of these criteria is not met we will find a violation of Article 11.3, not 3.1 or 3.2.

7.282 Having set out our approach with regard to Argentina's present claim, we now turn to the legal arguments Argentina raised in this context.

7.283 We recall our above observation that Argentina concedes that on its face the USITC's determination in the OCTG sunset review contains the word "likely". The USITC's final determination reads, in relevant part:

Based on the record in these five-year reviews, we determine under section 751(c) of the Tariff Act of 1930, as amended ("the Act"), that revocation of the antidumping duty orders on Oil Country Tubular Goods ("OCTG") other than drill pipe ("casing and tubing") from Argentina, Italy, Japan, Korea, and Mexico and of the countervailing duty order on casing and tubing from Italy would be likely to lead to continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time.¹³⁴ (emphasis added)

We note that, as Argentina agrees, on its face the USITC's determination references the likely standard of Article 11.3.

7.284 However, Argentina puts forward other arguments in its effort to prove that notwithstanding the standard spelled out in its final determination, the USITC did in fact use a different standard in the sunset review at issue. In this respect, Argentina first asserts that the USITC's statements in different fora reveals the fact that it interprets "likely" to mean "possible" rather than "probable". One such alleged admission relates to the USITC's statement before a US court that "likely" does not mean "probable", but something else. The second relates to the USITC's views expressed before a NAFTA panel in which the USITC allegedly stated that "likely" does not necessarily mean "probable".

7.285 We note that the standard set out in Article 11.3 of the Agreement for the investigating authorities' sunset determinations is "likely". This standard applies to the likelihood of continuation or recurrence of dumping as well as injury determinations in sunset reviews, and this is precisely the standard that the USITC applied. It seems to us that the essence of Argentina's claim is not that the USITC applied the wrong standard, but that it erred in determining that the likely standard was met. Our task is to reach a decision on Argentina's allegation that the USITC erred in the instant sunset review in the application of the likely standard of Article 11.3. Hence, the USITC's statements before US courts or before a NAFTA panel regarding the meaning of likely as used in Article 11.3 of the Agreement are not relevant to our consideration as to whether the USITC's determination in this sunset review present proceedings satisfied Article 11.3's likely standard.

7.286 We therefore turn to the specific aspects of the USITC's determination in the instant sunset review, regarding which Argentina alleges that the USITC failed to apply Article 11.3's likely standard.

Likely volume of dumped imports

7.287 Argentina submits that the USITC's analysis of the likely volume of dumped imports was not based on an objective examination of the evidence in the record.

7.288 We note that the USITC's analysis of the likely volume of dumped imports is found on pages 17-20 of the USITC's Sunset Determination. This part of the determination contains a detailed discussion of the issues relating to the likely volume of dumped imports. On page 17, the USITC starts its analysis with the relevant findings in the original investigation and then discusses the developments during the period of application of the measure. In the following pages, the USITC provides supporting arguments for its conclusion that there will be a significant volume of dumped imports in the event of revocation. Regarding capacity utilization, although the USITC acknowledges that the exporters' capacity utilization rates were high, it concludes that these foreign producers can devote more of their productive capacity from other types of tubular products to casing and tubing¹³⁵ because these two groups of products are produced in the same production lines with the same machinery. The USITC then explains the reasons on the basis of which it made this determination. In this context, the USITC mentions five reasons.

7.289 Argentina challenges the USITC's reasoning on three grounds and asserts therefore that the USITC's determination was not based on an objective examination of the evidence in the record.

7.290 The main argument that Argentina raises in this respect relates to the USITC's finding that Tenaris could re-orient more of its production capacity to the US market. Argentina does not dispute the fact that Tenaris¹³⁶ could shift its production capacity used in the production of other types of pipe and tube products to casing and tubing. Indeed, Argentina states that the only way for Tenaris to increase its exports of casing and tubing into the United States would be through shifting more of its capacity to the production of this product.¹³⁷ Argentina asserts, however, that there was no positive evidence in the record of the OCTG sunset review that would support the USITC's finding that Tenaris had an incentive to shift its production in such a way. Therefore, the issue is whether the USITC's determination that Tenaris could shift its productive capacity from other pipe and tube products to casing and tubing had a sufficient factual basis in the record.

7.291 We note that the USITC identified five supporting arguments for its determination that subject producers, including Tenaris, could devote more of their productive capacity to the US market. The USITC's determination reads, in relevant part:

The recent*** capacity utilization rates represent a potentially important constraint on the ability of these subject producers to increase shipments of casing and tubing to the United States. Nevertheless, the record indicates that these producers have incentives to devote more of their productive capacity to producing and shipping more casing and tubing to the U.S. market.

First, ... While the Tenaris companies seek to downplay the importance of the U.S. market relative to the rest of the world, they acknowledge that it is the largest market for seamless casing and tubing in the world. Given Tenaris' global focus, it likely would have a strong incentive to have a significant presence in the U.S. market, including the supply of its global customers' OCTG requirements in the U.S. market.

Second, casing and tubing are among the highest valued pipe and tube products, generating among the highest profit margins....

Third, the record in these reviews indicates that prices for casing and tubing on the world market are significantly lower than prices in the United States...We have considered respondents' arguments that the domestic industry's claims of price differences are exaggerated, but nevertheless conclude that there is on average a difference sufficient to create an incentive for subject producers to seek to increase their sales of casing and tubing to the United States.

Fourth, subject country producers also face import barriers in other countries, or on related products...

Finally, we find that industries in ***of the subject countries are dependent on exports for the majority of their sales...

We therefore find that, in the absence of the orders, the likely volume of cumulated subject imports, both in absolute terms and as a share of the U.S. market, would be significant.¹³⁸ (footnotes omitted)

7.292 We note that Argentina challenges two of these five points highlighted by the USITC. Therefore, we shall first entertain Argentina's arguments regarding these two points before reaching our conclusion regarding Argentina's main claim that the USITC's determination regarding the likely volume of dumped imports was not based on an objective examination of the evidence in the record.

7.293 Argentina first contends that the USITC's finding regarding the existence of trade barriers in third-country markets was only based on an antidumping order imposed by Canada against Korea. Since the USITC could not cite any other trade barrier against the other four countries subject to this sunset review, Argentina asserts that this finding was not based on positive evidence.

7.294 The USITC's determination reads, in relevant part:

Fourth, subject country producers also face import barriers in other countries, or on related products. Argentine, Japanese, and Mexican producers are subject to antidumping duty orders in the United States on seamless standard, line, and pressure pipe, which are produced in the same production facilities as OCTG. Korean producers are subject to import quotas on welded line pipe shipped to the United States and U.S. antidumping duty orders on circular, welded, non-alloy steel pipe. Canada currently imposes 67 per cent antidumping duty margins on casing from Korea.¹³⁹ (footnotes omitted)

7.295 We note that the USITC referred to a number of trade barriers. However, of these barriers only one related to the subject product, i.e. Canadian anti-dumping measure on casing and tubing from Korea. Others concerned related products, i.e. products that could be produced in the same production lines as casing and tubing. The issue therefore is whether the USITC erred in considering that certain exporters that were subject to trade barriers with respect to certain product types, which could be produced in the same production lines as casing and tubing, might shift their production to casing and tubing, which could enter the US market free of the anti-dumping measure at issue in these proceedings. Given that it is undisputed between the parties that such shifting was technically possible, we see no reason why the USITC could not make such an inference in the circumstances of the instant sunset review. It is only normal to expect a producer to seek to maximize its profits, which, in this case, would be possible through shifting production to casing and tubing in order to enter the US market free of the anti-dumping duty at issue had it been revoked. We therefore consider that this aspect of the USITC's conclusion was reasoned in light of the evidence in the record.

7.296 Next, Argentina submits that the USITC's analysis concerning the price differences between the US and the world markets was based on anecdotal evidence rather than independent reports. We note that the USITC's report cites the testimony of three individuals in this sector as evidence of this price differentiation and it cites no objection raised by interested parties in this respect.¹⁴⁰ Argentina is not raising any argument as to the correctness of the substance of this testimony. Nor has it brought to our attention another piece of evidence that might support the opposite finding in this regard. Argentina's claim in this regard therefore is limited to the kind of evidence the USITC relied upon. Keeping in mind our standard of review with respect to factual determinations by an investigating authority, and conscious that there are no rules in the Anti-Dumping Agreement as to the type of evidence that can support an investigating authority's findings, we are of the view that the USITC's reference to the testimonies of individuals who are knowledgeable in the relevant sector was proper.

7.297 Argentina also argues that the fact that the producers forming Tenaris already had long-term contracts with their customers indicated to the USITC that Tenaris was not likely to increase its exports to the United States in the event of revocation. This is because these producers would not turn away their long-term customers for the sake of increasing their exports to the United States. The United States asserts, and the USITC's Final Determination states, that given the difference between the US and world market prices, the United States' being the world's largest OCTG market and casing and tubing's being the highest valued pipe and tube product, the USITC was justified in concluding that Tenaris had a strong incentive to increase exports to the United States. We find it reasonable to conclude from these facts that Tenaris had an incentive to increase its exports to the United States should the measure be revoked. In our view, a determination that certain producers have an incentive to increase their exports towards a certain market is one that can be made on the basis of an analysis of various factors, such as the size of the target market, differences between prices and qualities and other costs associated with the shipment of the subject product. In the circumstances of the instant sunset review, we see no element in the USITC's Final Determination which would support the assertion that the USITC's determination on this matter was based on an improper establishment of facts or a biased or unobjective evaluation thereof.

Conclusion

7.298 In light of the above considerations, we conclude that Argentina has failed to prove that the USITC's determinations concerning the likely volume of dumped imports were WTO-inconsistent and therefore decline this aspect of Argentina's claim.

Likely price effects of dumped imports

7.299 The USITC's discussion of the issues relating to the likely price effect of dumped imports is found on pages 20 and 21 of its Final Determination. Here too, the USITC starts its analysis by citing the relevant findings in the original investigation. It then discusses the determinations made during the period of application of the order and mentions that price underselling continued over the life of the measure. The USITC then concludes:

Given the likely significant volume of subject imports, the high level of substitutability between the subject imports and domestic like product, the importance of price in domestic purchasing decision, the volatile nature of U.S. demand, and the underselling by the subject imports in the original investigation and during the current review period, we find that in the absence of the orders, casing and tubing from Argentina, Italy, Japan, Korea and Mexico likely would compete on the basis of price in order to gain additional market share. We find that such price-based competition by subject imports likely would have significant depressing or suppressing effects on the prices of the domestic like product.¹⁴¹ (footnote omitted)

7.300 Argentina argues that the USITC's findings regarding the likely price effects of dumped imports were not based on an objective examination of the evidence in the record. First, according to Argentina, the USITC's price underselling analysis was based on a limited set of comparisons.

7.301 We note the following part of the USITC's determination in this regard:

While direct selling comparisons are limited because the subject producers had a limited presence in the U.S. market during the period of review, the few direct comparisons that can be made indicate that subject casing and tubing generally undersold the domestic like product especially in 1999 and 2000.¹⁴² (footnote omitted)

7.302 Argentina does not dispute the fact that the USITC did carry out some sort of price comparison. According to Argentina, however, the base of this comparison was not adequate because of the limited number of comparisons involved.

7.303 In our view, a price comparison made as part of a sunset determination does not necessarily require a threshold in terms of the number of comparisons used. In fact, in sunset reviews, depending on the volume of imports following the imposition of the measure the number of such comparisons may inevitably be limited. It may even be impossible to do any comparison in cases where imports completely cease following the imposition. In this case, the USITC carried out a number of price comparisons as part of its price effect analysis. The USITC's determination explains that the reason for the limited number of price comparisons was the low volume of imports following the imposition of the measure at issue. Argentina does not dispute this fact. Argentina does not contend that the USITC, for instance, acted selectively in making these comparisons or that the methodology used was biased or otherwise improper. The simple fact that the number of price comparisons was limited does not make this aspect of the USITC's determination inconsistent with Article 11.3 of the Agreement. We therefore consider that under the circumstances of this case the USITC's calculations were adequate because the volume of export sales into the US market were limited in the period of application of the measure.

7.304 Argentina also argues that the USITC's determination that price was an important factor in the purchasing decisions in the US market was flawed because the documents in the record show that purchasers attached a similar importance to factors other than price. We note that the staff report that accompanied the USITC's determination in the instant sunset review demonstrates that purchasers in the US market ranked eight factors between 1.8 and 2.0 on a scale of importance from 0 to 2.0. Price, being one of such factors, was ranked 1.8.¹⁴³ In our view, the fact that other factors are also important does not diminish the importance of price in purchasing decisions. The USITC did not state that price was the only important factor, or even the most important factor; it just stated that it was an important factor.

7.305 In light of these circumstances, we do not consider that the USITC erred in relying on this fact in its determinations merely because of the fact that some other factors were also ranked similarly to price. This alone does not suffice to prove that the USITC's likely price effects analysis was not based on an objective examination of the evidence in the record, as Argentina asserts.

Conclusion

7.306 On the basis of the above, we are of the view that the USITC's determination regarding the likely price effect of dumped imports was based on an objective examination of the evidence in the record.

Likely impact of dumped imports on the US industry

7.307 Argentina argues that the USITC's determinations regarding the likely impact of future imports on the US industry were not based on an objective examination of the evidence in the record. According to Argentina, the USITC's flawed determination regarding the likely volume and price effects of dumped imports fatally affected its examination of the adverse impact of such imports on the US industry.

7.308 In the relevant part of its determination, the USITC once again commences its analysis by citing its relevant findings in the original investigation and continues with the findings made during the period of application of the measure. The USITC clearly finds that the state of the domestic industry as of the date of the sunset review at issue is positive. However, on the basis of its earlier findings regarding the likely volume of dumped imports and their likely price effects, it nevertheless concludes that these imports are likely to have an adverse impact on the US industry. The determination reads, in relevant parts:

On balance, we find that the domestic industry's condition has improved since the orders went into effect as reflected in most indicators over the period reviewed, and we do not find the industry to be currently vulnerable.

We find, however, as discussed above, that revocation of the orders likely would lead to a significant increase in the volume of subject imports which likely would undersell the domestic like product and significantly depress or suppress the domestic industry's prices. Moreover, in the original investigations, subject imports captured market share and caused price effects despite a significant increase in apparent consumption in 1993 and 1994 as compared to 1992. In these reviews, we find that a significant increase in subject imports is likely to have negative effects on both the price and volume of the domestic producers' shipments despite strong demand conditions in the near term. We find that these developments likely would have a significant adverse impact on the production, shipments, sales, market share, and revenues of the domestic industry. This reduction in the domestic industry's production, shipments, sales, market share, and revenues would result in erosion of the domestic industry's profitability as well as its ability to raise capital and make and maintain necessary capital investments.¹⁴⁴ (emphasis added)

7.309 Argentina contends that given the positive trends in the state of the domestic industry as of the date of the determination, the USITC should have made the opposite conclusion. According to Argentina, given the positive state of the US industry, the USITC must have made its conclusion on the basis of its findings in the original investigation.

7.310 We note that the USITC's determination references the USITC's findings in the original investigation as well as its determinations in the instant sunset review regarding the likely volume and prices effect of dumped imports and concludes that these developments would have a significant adverse impact on various aspects of the state of the US industry in the future. It is therefore not linked solely to the findings in the original investigation. Therefore, the issue here is whether, given its findings in the original investigation and those in the instant sunset review regarding the likely volume of dumped imports and their likely price effect, the USITC could conclude that the likely imports would have an adverse impact on the US industry.

7.311 In our view, the USITC did not act inconsistently with Article 11.3 of the Agreement in its determination regarding the likely impact of future dumped imports on the US industry. In this context, we recall our above analysis regarding the nature of the inquiry under Article 11.3 of the Agreement (supra, para. 7.211). Just as on the dumping side of sunset determinations, there is nothing in Article 11.3 that requires an investigating authority to follow a particular method in the likelihood of continuation or recurrence of injury determinations. As long as the investigating authority's determination is based on a sufficient factual basis and it reflects an objective examination of these facts, it will meet the requirements of Article 11.3. In this case, the USITC found that imports were likely to increase and to have a negative effect on the prices of the US industry in the event of revocation of the measure at issue. Then, the USITC found that this likely increase in imports and their likely price effect would have a negative impact on the US industry. In the circumstances of the case at hand, we find it proper to conclude that the likely increased volume and negative price effect of dumped imports would also have a negative impact on the state of the US industry. Further, in our view, the USITC's observations regarding the state of the US industry as of the date of the sunset review at issue do not preclude it from nevertheless finding that the US industry is likely to be affected by the increase in the volume and the negative effect of the prices of the likely dumped imports.

Conclusion

7.312 On the basis of the above explanations, we find that under the circumstances of this sunset review, the USITC's determinations regarding the likely consequent impact of the likely dumped imports on the US industry was not inconsistent with Article 11.3 of the Agreement.

4. Alleged violation of Article 3.4 of the Agreement

(a) Arguments of parties

(i) Argentina

7.313 Argentina submits that in this sunset review the USITC violated Article 3.4 of the Agreement by failing to address some of the fifteen injury factors listed therein.

(ii) United States

7.314 Regarding Argentina's arguments under various paragraphs of Article 3, the United States generally argues that Article 3 does not apply to sunset reviews. The United States nevertheless submits that the violations alleged by Argentina with regard to Article 3.4 are groundless because the USITC's determinations demonstrate that it did not act inconsistently with these provisions.

(b) Arguments of third parties

(i) European Communities

7.315 The European Communities agrees with Argentina that the provisions of Article 3 of the Anti-Dumping Agreement apply mutatis mutandis in the context of sunset reviews. According to the European Communities, given the introductory wording of Article 3.1, the absence of an explicit cross-reference in Article 11.3 to Article 3 is irrelevant. The European Communities also agrees with Argentina that the required standard in sunset determinations is �likely�, not �possible�. According to the European Communities, in the instant sunset review the USITC did not apply the �likely� standard correctly.

(ii) Japan

7.316 Japan argues that the provisions of Article 3 apply to injury determinations in sunset reviews under Article 11.3. Therefore, the requirements of Articles 3.1, 3.2, 3.4 and 3.5 have to be fulfilled in such reviews.

(c) Evaluation and conclusion by the Panel

7.317 We note that Argentina's claim here is based solely on Article 3.4 of the Agreement. In line with our above analysis regarding the applicability of Article 3 to sunset reviews (supra, paras. 7.268-7.276), we decline Argentina's claim.

5. Alleged violation of Article 3.5 of the Agreement

(a) Arguments of parties

(i) Argentina

7.318 According to Argentina, the USITC failed to conduct the causal link analysis required under Article 3.5 of the Agreement because it failed to inquire whether there would be other factors that would also affect the domestic industry in the event of revocation of the anti-dumping duty.

(ii) United States

7.319 The United States generally argues that Article 3 does not apply to sunset reviews. The United States nevertheless submits that the violations alleged by Argentina with regard to Article 3.5 are groundless because the USITC's determinations demonstrate that it did not act inconsistently with these provisions.

(b) Arguments of third parties

(i) European Communities

7.320 The European Communities agrees with Argentina that the provisions of Article 3 of the Anti-Dumping Agreement apply mutatis mutandis in the context of sunset reviews. According to the European Communities, given the introductory wording of Article 3.1, the absence of an explicit cross-reference in Article 11.3 to Article 3 is irrelevant. The European Communities also agrees with Argentina that the required standard in sunset determinations is �likely�, not �possible�. According to the European Communities, in the instant sunset review, the USITC did not correctly apply the �likely� standard.

(ii) Japan

7.321 Japan argues that the provisions of Article 3 apply to injury determinations in sunset reviews under Article 11.3. Therefore, the requirements of Articles 3.1, 3.2, 3.4 and 3.5 have to be fulfilled in such reviews.

(c) Evaluation and conclusion by the Panel

7.322 We note that Argentina's claim here is based solely on Article 3.5 of the Agreement. In line with our above analysis regarding the applicability of Article 3 to sunset reviews (supra, paras. 7.268-7.276), we decline Argentina's claim.

6. Cumulation

(a) Arguments of parties

(i) Argentina

7.323 Argentina argues that the USITC's use of the cumulation methodology in its sunset determinations in the instant sunset review was inconsistent with Articles 11.3 and 3.3 of the Agreement. According to Argentina, Article 3.3 limits the use of cumulation to investigations. Therefore, investigating authorities can not use cumulation in sunset reviews. In the alternative, Argentina argues that if cumulation can be used in sunset reviews, then the conditions set forth in Article 3.3 regarding the use of cumulation must be fulfilled. In this case, since the USITC used cumulation without respecting these conditions, it acted inconsistently with Articles 11.3 and 3.3. Argentina also submits that the low "possibility" standard used by the USITC in order to resort to cumulation also conflicted with the "likely" standard of Article 11.3. This is because in the absence of cumulation, the USITC would not be able to find likelihood of continuation or recurrence of injury with respect to Argentina. By using a low standard to resort to cumulation, the USITC also disregarded the more general "likely" standard of Article 11.3.

(ii) United States

7.324 The United States submits that there is no provision in the Agreement that prohibits the use of cumulation in sunset reviews. Therefore, WTO Members are generally free to use this methodology in such reviews. According to the United States, the texts of Articles 3.3 and 5.8 of the Agreement confirm that the numerical criteria set out in Article 3.3 of the Agreement regarding the use of cumulation are limited to investigations and do not extend to sunset reviews. Thus, the United States argues that the USITC did not act inconsistently with the Agreement by using cumulation in the instant sunset review without taking into consideration the requirements of Article 3.3.

(b) Evaluation by the Panel

7.325 Argentina asserts in the first place that cumulation can not be used at all in sunset reviews. In the alternative, Argentina submits that if the Agreement does not disallow the use of cumulation in sunset reviews, then the investigating authorities in sunset reviews have to take into account the requirements of Article 3.3 where they decide to use cumulation.

7.326 Argentina argues that according to Article 3.3 cumulation can only be used in investigations. Argentina bases its argument on the text of the Agreement and submits that there is no cross-reference either in Article 11 or in Article 3.3 that would allow the use of cumulation in sunset reviews. According to Argentina, the object and purpose of Article 11 or the other provisions of the Agreement can not support the view that cumulation can be used in sunset reviews either.

7.327 We note that Article 31.1 of the Vienna Convention provides that a treaty should be interpreted on the basis of its text, read in context and in the light of its object and purpose.¹⁴⁵ With that in mind, we turn once again to the text of Article 11.3, which provides: