WT/DS436/RW  
 
15 November 2019 
(19-7799) Page: 1/131 
    
 
  
UNITED  STATES  – COUNTERVAILING ME ASURES ON CERTAIN 
HOT-ROLLED CARBON STEEL FLAT PRODUCTS FROM I NDIA  
RECOURSE TO ARTICLE  21.5 OF THE DSU BY I NDIA 
REPORT OF THE PANEL  
 
 
 
 
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  TABLE OF CONTENTS  
 
1   INTRODUCTION  ................................ ................................ ................................ ....... 14 
1.1   Complaint by India  ................................ ................................ ................................ ... 14 
1.2   Panel establishment and composition  ................................ ................................ ..........  14 
1.3   Panel proceedings  ................................ ................................ ................................ ..... 14 
2   FACTUAL ASPECTS ................................ ................................ ................................ .... 14 
3   PARTIES'  REQUEST S FOR FINDINGS AND R ECOMMENDATIONS  ...............................  18 
4   ARGUMENTS OF THE  PARTIES  ................................ ................................ ..................  19 
5   ARGUMENTS OF THE  THIRD PARTIES  ................................ ................................ ....... 19 
6   INTERIM REVIEW  ................................ ................................ ................................ ..... 19 
7   FINDINGS  ................................ ................................ ................................ ................  20 
7.1   General principles regarding treaty interpretation, standard of review, and burd en of  
proof ................................ ................................ ................................ ..............................  20 
7.1.1    Treaty interpretation  ................................ ................................ ..............................  20 
7.1.2    Standard of review ................................ ................................ ................................ . 20 
7.1.3    Burden of proof  ................................ ................................ ................................ ..... 21 
7.1.4    The scope of compliance proceedings under Article  21.5 of the DSU  .............................  21 
7.2   Public Body: India's  claims under Article  1.1(a)(1) of the S CM Agreement  .......................  23 
7.2.1    Introduction  ................................ ................................ ................................ ..........  23 
7.2.2    The legal and evidentiary standard applicable to the public body enquiry  ......................  24 
7.2.3    The USDO C's determination on the NMDC as a public body  ................................ .........  27 
7.2.3.1    The USDOC's  Preliminary Determination  ................................ ................................  28 
7.2.3.2    The GOI's  case brief in response  ................................ ................................ ...........  29 
7.2.3.3    The USDOC's  Final Determination  ................................ ................................ .........  31 
7.2.3.4    Conclusion  ................................ ................................ ................................ .........  33 
7.2.4    Whether the USDOC erred in its finding that the NMDC performs a governmental  
function within the legal order of India ................................ ................................ ................  34 
7.2.5    Whether the USDOC erred in its assessment of the Miniratna status of the NMDC in 
respect of establishing "meaningful control" by the GOI  ................................ ........................  35 
7.2.5.1    Whether the USDOC accorded "due significance" to record evidence on Miniratna  
status and its associated autonomy  ................................ ................................ ....................  37 
7.2.5.2    Whether the USDOC erred by failing to seek or accept additional evidence on the  
legal implications of Miniratna status  ................................ ................................ ..................  38 
7.2.5.3    Whether the "new factual information" can be taken into account by the Panel  ...........  39 
7.2.5.4    Conclusion on Miniratna status  ................................ ................................ .............  41 
7.2.6    Whether the USDOC erred in relation to the export restraints applying to the NMDC  ...... 41 
7.2.7    Whether the USDOC erred in finding that the Directors (appointed by the GOI) hold  
price negotiations for the sale of iron ore  ................................ ................................ ............  45 
7.2.8    Conclusion on India's  claims under Article  1.1(a)(1) of the SCM  Agreement  ..................  47 
7.3   Benefit: India's  claims under Article  14(d) of the SCM  Agreement  ................................ ... 47 
7.3.1   The legal standard applicable to "benefit" determinations under Article  14(d) of the 
SCM Agreement  ................................ ................................ ................................ ...............  48 WT/DS436/ RW 
 
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  7.3.2    Whether the USDOC applied an incorrect legal standard in rejecting the domestic  
pricing information  ................................ ................................ ................................ ...........  50 
7.3.3    Whether the USDOC erred in its factual finding that the data in the association price  
chart was "provisional or estimated" ................................ ................................ ...................  53 
7.3.4    Whether the USDOC erred because its examination of the domestic pricing  
information was neither objective nor based on coherent reasoning  ................................ ....... 55 
7.3.5    Whether the USDOC erred by failing to explain adequately the reasons for rejecting  
the Tata price quote on the basis of disclosing confidential data  ................................ .............  57 
7.3.6    Whether the USDOC erred by failing to explain adequately its reliance on the 
prices  reported in the Tex  Report as the appropriate benchmark  ................................ ............  57 
7.3.7    Whether the USDOC erred by rejecting NMDC export prices in favour of 
Australian/Brazilian world prices  ................................ ................................ ........................  59 
7.3.8    Conclusion  ................................ ................................ ................................ ............  63 
7.4   Benefit:  India's  claims under Article  14(b) of the SCM  Agreement  ................................ ... 63 
7.5   Specificity:  India's  claims under Article  2.1(c) of the SCM Agreement  .............................  68 
7.5.1    Whether the USDOC erred in its specificity assessment for the NMDC's  sales of  
high-grade iron ore  ................................ ................................ ................................ ..........  68 
7.5.2    Whether the USDOC erred in its finding that mining leases for iron ore were de facto  
specific  ................................ ................................ ................................ ...........................  72 
7.5.3    Whether the USDOC erred in its consideration of mandatory factors under  
Article  2.1(c) in respect of "mining leases for iron ore" and "mining leases for coal" .................  74 
7.6   Soliciting and accepting new evidence in the reinvestigation: India's  claims under 
Article  12.1 of the SCM  Agreement  ................................ ................................ .....................  79 
7.7   Disclosure of essential facts: India's  claims under Article  12.8 of the SCM  Agreement  ....... 80 
7.8   New Subsidies: India's  claims under Articles  21.1 and 21.2 of the SCM  Agreement  ...........  85 
7.8.1    Introduction  ................................ ................................ ................................ ..........  85 
7.8.2    India's  "new subsidies" claims concerning the 2004, 2006, and 2007 administrative 
reviews  ................................ ................................ ................................ ...........................  86 
7.8.2.1    Original proceedings  ................................ ................................ ............................  86 
7.8.2.2    The Panel's  evaluation of India's  claim regarding the inclusion of "new subsidies"  
in the 2004, 2006, and 2007 reviews  ................................ ................................ .................  87 
7.8.3    "New subsidies" in the Section  129 Determination  ................................ .....................  89 
7.8.3.1    Factual background  ................................ ................................ .............................  89 
7.8.3.2    The Panel's  evaluation of India's  "new subsidies" claims concerning the  
Section  129 proceedings  ................................ ................................ ................................ ... 90 
7.8.4    Conclusion  ................................ ................................ ................................ ............  93 
7.9   India's  claim that the United  States'  failure to amend 19 USC § 1677(7)(G)(i)(III) is 
inconsistent with the DSB  recommendation  in this dispute  ................................ ....................  93 
7.9.1    Introduction  ................................ ................................ ................................ ..........  93 
7.9.2    Whether India's  claim is within the Panel's  terms of reference  ................................ ..... 93 
7.9.3    Whether the United  States complied with the recommendation to bring 19 USC 
§ 1677(7)(G)(i)(III) into conformity with the SCM  Agreement  ................................ ...............  96 
7.9.4    Conclusion  ................................ ................................ ................................ ..........  102 
7.10   Injury: India's  "as applied" claims under Articles  15.1 and 15.2 of the SCM   
Agreement  ................................ ................................ ................................ ....................  102 
7.10.1    Whether the methodology and the data used by the USITC were flawed  ...................  102 WT/DS436/ RW 
 
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  7.10.2    Whether the USITC ignored data from the original determination  .............................  103 
7.10.3    Whether the USITC failed to determine the significance of price undercutting  ............  104 
7.10.4    Conclusion  ................................ ................................ ................................ ........  109 
7.11   Injury: India's  "as applied" claims under Articles  15.1 and 15.4 of the SCM   
Agreement  ................................ ................................ ................................ ....................  110 
7.11.1    Conclusion  ................................ ................................ ................................ ........  112 
7.12   Causation and non -attribution: India's  "as applied" claims under Articles  15.1  
and 15.5 of the SCM  Agreement  ................................ ................................ ......................  112 
7.12.1    Introduction  ................................ ................................ ................................ ...... 112 
7.12.2    Whether the USITC's Section 129 Determination failed to demonstrate that  
subsidized imports caused injury to the domes tic industry  ................................ ..................  112 
7.12.3    Whether the USITC's Section 129 Determination failed to consider the impact  
of certain known factors in th e non -attribution analysis  ................................ ......................  113 
7.12.3.1    Whether the USITC's Section 129 Determination failed to consider the impact  
of non -subsidi zed imports on the state of the domestic industry  ................................ ..........  114 
7.12.3.1.1    Non-subsidized imports already subject to anti-dumping duties  ..........................  114 
7.12.3.1.2    Non-attribution: "decumulated" dumped imports  ................................ ..............  115 
7.12.3.2    Non-attribution: plant closures  ................................ ................................ .........  118 
7.12.3.3    Non-attribution: contraction in demand  ................................ ..............................  120 
7.12.4    Conclusion  ................................ ................................ ................................ ........  121 
7.13   Whether the USDOC's  termination of previously agreed CVD rates is inconsistent  
with Article  19.3 of the SCM  Agreement  ................................ ................................ ............  121 
7.13.1    Factual background  ................................ ................................ ............................  121 
7.13.2    The Panel's  analysis  ................................ ................................ ...........................  122 
7.13.3   Conclusion  ................................ ................................ ................................ ........  126 
7.14   India's claims under Articles 10 of the SCM Agreement and VI of the GATT 1994  ..........  127 
8   CONCLUSIONS AND RECOMMENDATION  ................................ ................................  129  
 
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  LIST OF ANNEXES  
ANNEX A  
WORKING PROCEDURES O F THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures of the Panel concerning Business Confidential 
Information  11 
Annex A -3 Interim Review  13 
Annex A -4 Timetable for the Panel proceedings  25 
ANNEX B  
ARGUMENTS OF THE PAR TIES 
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of India  27 
Annex  B-2 Integrated executive summary of the arguments of the United States of America  44 
ANNEX C  
ARGUMENTS OF THE THI RD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Canada  56 
Annex  C-2 Integrated executive summary of the arguments of China  59 
Annex  C-3 Integrated executive summary of the arguments of Egypt  63 
Annex C -4 Integrated executive summary of the arguments of the European  Union  69 
Annex C -5 Integrated executive summary of the arguments of Japan  72 
 
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  CASES CITED IN THIS REPORT  
Short Title  Full Case Title and Citation  
Argentina – Ceramic Tiles  Panel Report, Argentina – Definitive Anti -Dumping Measures on Imports of 
Ceramic Floor Tiles from Italy , WT/DS189/R , adopted 5 November 2001, DSR 
2001:XII, p. 6241  
Argentina – Poultr y 
Anti-Dumping Duties  Panel Report, Argentina – Definitive Anti -Dumping Duties on Poultry from 
Brazil , WT/DS241/R , adopted 19 May 2003, DSR 2003:V, p. 1727  
Australia – Salmon  Appellate Body Report, Australia – Measures Affecting Importation of Salmon , 
WT/DS18/AB/R , adopted 6 November 1998, DSR 1998:VIII, p. 3327  
Brazil – Aircraft Appellate Body Report, Brazil – Export Financing Programme for Aircraft , 
WT/DS46/AB/R , adopted 20 August 1999, DSR 1999:III, p. 1161  
Brazil – Desiccated Coconut  Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut , 
WT/DS22/AB/R , adopted 20 March 1997, DSR 1997:I, p. 167  
Canada – Aircraft  
(Article  21.5 – Brazil)  Appellate Body Report, Canada – Measures Affecting the Export of Civilian 
Aircraft – Recourse by Brazil to Article  21.5 of the DSU , WT/DS70/AB/RW , 
adopted 4 August 2000, DSR 2000:IX, p. 4299  
Canada – Renewable Energy/ 
Canada – Feed-in Tariff 
Program  Appellate Body Reports, Canada – Certain Measures Affecting the Renewable 
Energy Generation Sector / Canada – Measures Relating to the Feed -in Tariff 
Program , WT/DS412/AB/R  / WT/DS426/AB/R , adopted 24 May 2013, DSR 
2013:I, p. 7  
Canada – Renewable Energy/ 
Canada – Feed-in Tariff 
Program  Panel Reports, Canada – Certain Measures Affecting the Renewable Energy 
Generation Sector / Canada – Measures R elating to the Feed -in Tariff 
Program , WT/DS412/R  and Add.1 / WT/DS426/R  and Add.1, adopted 24 May 
2013, as modified by Appellate Body Reports WT/DS412/AB/R / 
WT/DS426/AB/R, DSR 2013:I, p. 237  
Chile – Price Band System 
(Article  21.5 – Argentina)  Panel Report, Chile – Price Band System and Safeguard Measures Relating to 
Certain Agricultural Products – Recourse to Article  21.5 of the DSU by 
Argentina , WT/DS207/RW  and Corr.1, adopted 22 May 2007, upheld by 
Appellate Body Report WT/DS207/AB/RW, DSR 2007:II, p. 613  
China – GOES  Appellate Body Report, China – Countervailing and Anti -Dumpi ng Duties on 
Grain Oriented Flat -Rolled Electrical Steel from the United States , 
WT/DS414/AB/R , adopted 16 November 2012, DSR 2012:XII, p. 6251  
China – GOES  Panel Report, China – Countervailing and Anti -Dumping Duties on Grain 
Oriented Flat -Rolled Electrical Steel from the United States , WT/DS414/R  and 
Add.1, adopted 16 November 2012, upheld by Appellate Body Repo rt 
WT/DS414/AB/R, DSR 2012:XII, p. 6369  
China – HP-SSST (Japan) / 
China – HP-SSST (EU)  Appellate Body Reports, China – Measures Imposing Anti -Dumping Duties on 
High-Performance Stainless Steel Seamless Tubes ("HP -SSST") from Japan / 
China – Measures Impos ing Anti -Dumping Duties on High -Performance 
Stainless Steel Seamless Tubes ("HP -SSST") from the European Union , 
WT/DS454/AB/R  and Add.1 / WT/DS4 60/AB/R  and Add.1, adopted 28 October 
2015, DSR 2015:IX, p. 4573  
EC – Approval and Marketing 
of Biotech Products  Panel Reports, European Communities – Measures Affecting the Approval and 
Marketing of Biotech Products , WT/DS291/R , Add.1 to Add.9 and Corr.1 / 
WT/DS292/R , Add.1 to Add.9 and Corr.1 / WT/DS293/R , Add.1 to Add.9 and 
Corr.1, adopted 21 November 2006, DSR 2006:III, p. 847  
EC – Bananas III  Appellate Body Report, European Communities – Regime for the Importation, 
Sale and Distribution of Bananas , WT/DS27/AB/R , adopted 25 September 
1997, DSR 1997:II, p. 591  
EC – Bananas III  
(Article  21.5 – Ecuador)  Panel Report, European Communities – Regime for the Importation, Sale and 
Distribution of Bananas – Recourse to Article 21.5 of the DSU by Ecuador , 
WT/DS27/RW/ECU , adopted 6 May 1999, DSR 1999:II, p.  803 
EC – Bed Linen  
(Article  21.5 – India)  Appellate Body Report, European Communities – Anti-Dumping Duties on 
Imports of Cotton -Type Bed Linen from India – Recourse to Article  21.5 of the 
DSU by India , WT/DS141/AB/RW , adopted 24 April 2003, DSR 2003:III, p.  965 
EC – Countervailing Measures 
on DRAM Chips  Panel Report, European Communities – Countervailing Measures on Dynamic 
Random Access Memory Chips from Korea , WT/DS299/R , adopted 3 August 
2005, DSR 2005:XVIII, p. 8671  
EC – Hormones  Appellate Body Report, European Communities – Measures Concerning Meat 
and Meat Products (Hormones) , WT/DS26/AB/R , WT/DS48/AB/R , adopted 
13 February 1998, DSR 1998:I, p. 135  
EC – Selected Customs Matter  Appellate Body Report, European Communities – Selected Customs Matters , 
WT/DS315/AB/R , adopted 11 Decembe r 2006, DSR 2006:IX, p. 3791  WT/DS436/ RW 
 
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  Short Title  Full Case Title and Citation  
EC and certain member States 
– Large Civil Aircraft  Appellate Body Report, European Communities and Certain Member States – 
Measures Affecting Trade in Large Civil Aircraft , WT/DS316/AB/R , adopted 
1 June 2011, DSR 2011:I, p. 7  
EC and certain member  States 
– Large Civil Aircraft  Panel Report, European Communities and Certain Member States – Measures 
Affecting Trade in Large Civil Aircraft , WT/DS316/R , adopted 1 June 2011, as 
modified by Appellate Body Report WT/DS316/AB/R, DSR 2011:II, p. 685  
EC and certain member States 
– Large Civil Aircraft  
(Article  21.5 – US) Panel Report, European Communities and Certain Member States – Measures 
Affecting Trade in Large Civil Aircraft  – Recourse to Article  21.5 of the DSU by 
the United States , WT/DS316/RW  and Add.1, adopted 28 May 2018, as 
modified by Appellate Body Report WT/DS316/AB/RW  
EC – Fasteners (China)  Panel Report, European Communities – Definitive Anti -Dumping Measures on 
Certain Iron or Steel Fasteners from China , WT/DS397/R  and Corr.1, adopted 
28 July 2011, as modified by Appellate Body Re port WT/DS397/AB/R, 
DSR 2011:VIII, p. 4289  
EU – Fatty Alcohols 
(Indonesia)  Appellate Body Report, European Union – Anti-Dumping Measures on Imports 
of Certain Fatty Alcohols from Indonesia , WT/DS442/AB/R  and Add.1, 
adopted 29 September 2017, DSR 2017:VI, p. 2613  
EU – Fatty Alcohols 
(Indonesia)  Panel Report, European Union – Anti-Dumping Measures on Imports of 
Certain Fatty Alcohols from Indonesia , WT/DS442/R  and Add.1, adopted 
29 September 2017, as modified by Appellate Body Report WT/DS442/AB/R, 
DSR 2017:VI, p. 2765  
EU – Footwear (China)  Panel Report, European Union – Anti-Dumping Measures on Certain Footwear 
from China , WT/DS405/R , adopted 22  February 2012, DSR 2012:IX, p. 4585  
EU – PET (Pakistan)  Appellate Body Report, European Union – Countervailing Measures on Certain 
Polyethylene Terephthalate from Pakistan , WT/DS486/AB/R  and Add.1, 
adopted 28 May 2018  
Guatemala – Cement II  Panel Report, Guatemala – Definitive Anti -Dumping Measures on Grey Portland 
Cement from Mexico , WT/DS156/R , adopted 17 November 2000, DSR 2000:XI, 
p. 5295 
Japan – Alcoholic Beverages  II Appellate Body Report, Japan – Taxes on Alcoholic Beverages , WT/DS8/AB/R , 
WT/DS10/AB/R , WT/DS11/AB/R , adopted 1 November 1996, DSR 1996:I, 
p. 97 
Japan – Apples  Panel Report, Japan – Measures Affecting the Importation of Apples , 
WT/DS245 /R, adopted 10 December 2003, upheld by Appellate Body Report 
WT/DS245/AB/R, DSR 2003:IX, p. 4481  
Japan – DRAMs (Korea)  Appellate Body Report, Japan – Countervailing Duties on Dynamic Random 
Access Memories from Korea , WT/DS336/AB/R  and Corr.1, adopted 
17 December 2007, DSR 2007:VII, p. 2703  
Korea – Certain Paper 
(Article  21.5 – Indonesia)  Panel Report, Korea – Anti-Dumping Duties on Imports of Certain Paper from 
Indonesia – Recourse to Article  21.5 of the DSU by Indonesia , WT/DS312/RW , 
adopted 22 October 2007, DSR 2007:VIII, p. 3369  
Korea – Commerc ial Vessels  Panel Report, Korea – Measures Affecting Trade in Commercial Vessels , 
WT/DS273/R , adopted 11 April 2005, DSR 2005:VII, p. 2749  
Mexico – Olive Oil  Panel Report, Mexico – Definitive Countervailing Measures on Olive Oil from the 
European Communities , WT/DS341/R , adopted 21 October 2008, DSR 
2008:IX, p. 3179  
Russia – Commercial Vehicles  Appellate Body Report,  Russia – Anti-Dumping Duties on Light Commercial 
Vehicles from Germany and Italy , WT/DS479/AB/R  and Add.1, adopted 9  April 
2018 
Thailand – H-Beams  Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes and 
Sections of Iron or Non -Alloy Steel and H -Beams from Poland , 
WT/DS122/AB/R , adopted 5 April 2001, DSR 2001:VII, p. 2701  
US – Anti-Dumping and 
Countervailing Duties (China)  Appellate Body Report, United States – Definitive Anti -Dumping and 
Countervailing Duties on Certain Products from China , WT/DS379/AB/R , 
adopted 25 March 2011, DSR 2011:V, p. 2869  
US – Anti-Dumpin g and 
Countervailing Duties (China)  Panel Report, United States – Definitive Anti -Dumping and Countervailing 
Duties on Certain Products from China , WT/DS379/R , adopted 25 March 
2011, as modified by Appellate Body Report WT/DS379/AB/R, DSR 2011:VI, 
p. 3143  
US – Carbon Steel (India)  Appellate Body Report, United States – Countervailing Measures on Certain 
Hot-Rolled Carbon Steel Flat Products from India , WT/DS436/AB/R , adopted 
19 December 2014, DSR 2014:V, p. 1727  WT/DS436/ RW 
 
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  Short Title  Full Case Title and Citation  
US – Carbon Steel (India)  Panel Report, United States – Countervailing Measures on Certain Hot -Rolled 
Carbon Steel Flat Products from India , WT/DS436/R  and Add.1, adopted 
19 December 2014, as modified by Appellate Body Report WT/DS436/AB/R, 
DSR 2014:VI, p. 2189 
US – Clove Cigarettes  Panel Report, United States – Measures Affecting the Production and Sale of 
Clove Cigarettes , WT/DS406/R , adopted 24 April 2012, as modified by 
Appellate Body Report WT/DS4 06/AB/R, DSR 2012:XI, p. 5865  
US – Coated Paper 
(Indonesia)  Panel Report, United States – Anti-Dumping and Countervailing Measures on 
Certain Coated Paper from Indonesia , WT/DS491/R  and Add.1, adopted 22 
January 2018  
US – Continued Suspension  Panel Report, United States – Continued Suspension of Obligations in the EC 
– Hormones Dispute , WT/DS320/R  and Add.1 to Add.7, adopted 14 
November 2008, as modified by Appellate Body Report WT/DS320/AB/R, 
DSR 2008:XI, p. 3891  
US – COOL  Panel Reports, United States – Certain Country of Origin Labelling (COOL) 
Requirements , WT/DS384/R  / WT/DS386/R , adopted 23 July 2012, as 
modified by Appellate Body Reports WT/DS384/AB/R / WT/DS386/AB/R, DSR 
2012:VI, p. 2745  
US – Corrosion -Resistant 
Steel Sunset Review  Appellate Body Report, United States – Sunset Review of Anti -Dumping 
Duties on Corrosion -Resistant Carbon Steel Flat Products from Japan , 
WT/DS244/AB/R , adopted 9 January 2004, DSR 2004:I, p. 3  
US – Countervailin g Measures 
(China)  Appellate Body Report, United States – Countervailing Duty Measures on 
Certain Products from China , WT/DS437/AB/R , adopted 16 January 2015, 
DSR 2015:1, p. 7  
US – Countervailing Measures 
(China)  Panel Report, United States – Countervailing Duty Measures on Certain 
Products from China , WT/DS437/R  and Add.1, adopted 16 January 2015, as 
modified by Appellate Body Report WT/DS437/AB/R, DSR 2015:1, p. 183  
US – Countervailing Measures 
(China) (Article  21.5 – China)  Panel Report, United States – Countervailing Duty Measures on Certain 
Products from China – Recourse to Article  21.5 of the DSU by China,  
WT/DS437/RW  and Add.1, circulated to WTO Members 21 March 2018 
[appealed by the parties ] 
US – Countervailing Duty 
Investigation on DRAMS  Appellate Body Report, United States – Countervailing Duty Investigation on 
Dynamic Random Access Memory Semiconductors (DRAMS) from Korea , 
WT/DS296/AB/R , adopted 20 July 2005, DSR 2005:XVI, p. 8131  
US – Countervailing Measures 
on Certain EC Products  
(Article  21.5 – EC) Panel Re port, United States – Countervailing Measures Concerning Certain 
Products from the European Communities – Recourse to Article  21.5 of the DSU 
by the European Communities , WT/DS212/RW , adopted 27 September 2005, 
DSR 2005:XVIII, p. 8950  
US – FSC 
(Article  21.5 – EC II)  Appellate Body Report, United States – Tax Treatment for "Foreign Sales 
Corporations" – Second Recourse to Article  21.5 of the DSU by the European 
Communities , WT/DS108/AB/RW2 , adopted 14 March 2006, DSR 2006:XI, 
p. 4721 
US – Gambling (Article 21.5 – 
Antigua and Barbuda)  Panel Report, United States – Measures Affecting the Cross -Border Supply of 
Gambling and Betting Services – Recourse to Article 21.5 of the DSU by Antigua 
and Barbuda , WT/DS285/RW , adopted 22 May 2007, DSR 2007:VIII, p. 3105  
US – Gasoline  Appellate Body Report, United States – Standards for Reformulated and 
Conventional Gasoline , WT/DS2/AB/R , adopted 20 May 1996, DSR 1996:I, p.  3 
US – Hot-Rolled Steel  Appellate Body Report, United States – Anti-Dumping Measures on Certain Hot -
Rolled Steel Products from Japan , WT/DS184/AB/R , adopted 23 August 2001, 
DSR 2001:X, p. 4697  
US – Lamb  Appellate Body Report, United States – Safeguard Measures on Imports of 
Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia , 
WT/DS177/AB/R , WT/DS178/AB/R , adopted 16 May 2001, DSR 2001:IX, 
p. 4051 
US – Lamb  Panel Report, United States – Safeguard Measures on Imports of Fr esh, Chilled 
or Frozen Lamb Meat from New Zealand and Australia , WT/DS177/R , 
WT/DS178/R , adopted 16 May 2001, as modified by Appellate Body Report 
WT/DS 177/AB/R, WT/DS178/AB/R, DSR 2001:IX, p. 4107  
US – Large Civil Aircraft 
(2nd complaint)  
(Article  21.5 – EU) Appellate Body Report, United States – Measures Affecting Trade in Large 
Civil Aircraft (Second Complaint) – Recourse to Article  21.5 of the DSU by the 
European Union , WT/DS353/AB/RW  and Add.1, adopted 11 April 2019  WT/DS436/ RW 
 
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  Short Title  Full Case Title and Citation  
US – Large Civil Aircraft 
(2nd complaint)  
(Article  21.5 – EU) Panel Report, United States – Measures Affecting Trade in Large Civil Aircraft 
(Second Complaint) – Recourse to Article  21.5 of the DSU by the European 
Union , WT/DS353/RW  and Add.1, adopted 11 April 2019, as modified by 
Appellate Body Report WT/DS353/AB/RW  
US – OCTG (Korea)  Panel Report, United States – Anti-Dumping Measures on Certain Oil Country 
Tubular Goods from Korea , WT/DS488/R  and Add.1, adopted  12 January 2018  
US – Oil Country Tubular 
Goods Sunset Reviews  
(Article  21.5 – Argentina)  Appellate Body Report, United States – Sunset Reviews of Anti -Dumping 
Measures on Oil Country Tubular Goods from Argentina – Recourse to 
Article  21.5 of the DSU by Argentina , WT/DS268/AB/RW , adopted 11 May 
2007, DSR 2007:IX, p. 3523  
US – Oil Country Tubular 
Goods Sunset Reviews 
(Article  21.5 – Argentina)  Panel Report, United States – Sunset Reviews  of Anti -Dumping Measures on 
Oil Country Tubular Goods from Argentina – Recourse to Article  21.5 of the 
DSU by Argentina , WT/DS268/RW , adopted 11 May 2007, as modified by 
Appellate Body Report WT/DS268/AB/RW, DSR 2007:IX, p. 3609  
US – Shrimp  
(Article  21.5 – Malaysia)  Appellate Body Report, United States – Import Prohibition of Certain Shrimp 
and Shrimp Products – Recourse to Article  21.5 of the DSU by Malaysia , 
WT/DS58/AB/RW , adopted 21 November 2001, DSR 2001:XIII, p. 6481  
US – Softwood Lumber IV  Appellate Body Report, United States – Final Countervailing Duty 
Determination with Respect to Certain Softwood Lumb er from Canada , 
WT/DS257/AB/R , adopted 17 February 2004, DSR 2004:II, p. 571 
US – Softwood Lumber IV  Panel Report, United States – Final Countervailing Duty Determination with 
Respect to Certain Softwood Lumber from Canada , WT/DS257/R  and Corr.1, 
adopted 17 February 2004, as modified by Appellate Bod y Report 
WT/DS257/AB/R, DSR 2004:II, p. 641  
US – Softwood Lumber IV 
(Article  21.5 – Canada)  Appellate Body Report, United States – Final Countervailing Duty 
Determination with Respect to Certain Softwood Lumber from Canada – 
Recourse by Canada to Article  21.5 of the DSU , WT/DS257/AB/RW , adopted 
20 December 2005, DSR 2005:XXII I, p. 11357  
US – Softwood Lumber VI 
(Article 21.5 – Canada)  Appellate Body Report, United States – Investigation of the International Trade 
Commission in Softwood Lumber from Canada – Recourse to Article 21.5 of the 
DSU by Canada , WT/DS277/AB/RW , adopted 9 May 2006, and Corr.1, DSR 
2006:XI, p. 4865  
US – Steel Safeguards  Appellate Body Report, United States – Definitive Safeguard Measures on 
Imports of Cert ain Steel Products , WT/DS248/AB/R , WT/DS249/AB/R , 
WT/DS251/AB/R , WT/DS252/AB/R , WT/DS253/AB/R , WT/DS254/AB/R , 
WT/DS258/AB/R , WT/DS259/AB/R , adopted 10 December 2003, DSR 
2003:VII, p. 3117  
US – Tuna II (Mexico)  
(Article  21.5 – Mexico)  Appellate Body Report, United States – Measures Concerning the Importation, 
Marketing and Sale of Tuna and Tuna Products – Recourse to Article  21.5 of 
the DSU by Mexico , WT/DS381/AB/RW  and Add.1, adopted 3  December 2015, 
DSR 2015:X, p. 5133  
US – Upland Cotton  Appellate Body Report, United States – Subsidies on Upland Cotton , 
WT/DS267/AB/R , adopted 21 March 2005, DSR 2005:I, p. 3  
US – Upland Cotton 
(Article  21.5 – Brazil)  Appellate Body Report, United States – Subsidies on Upland Cotton – Recourse 
to Article  21.5 of the DSU by Brazil , WT/DS267/AB/RW , adopted 20  June 2008, 
DSR 2008:III, p. 809  
US – Upland Cotton  
(Article  21.5 – Brazil)  Panel Report, United States – Subsidies on Upland Cotton – Recourse to 
Article  21.5 of the DSU by Brazil , WT/DS267/RW  and Corr.1, adopted 20 June 
2008, as modified by Appellate Body Report WT/DS267/AB/RW, 
DSR 2008:III, p. 997  
US – Washing Machines  Appellate Body Report,  United States – Anti-Dumping and Countervailing 
Measures on Large Residential Washers from Korea , WT/DS464/AB/R  and 
Add.1, adopted 26 September 2016, DSR 2016:V, p. 2275  
US – Wheat Gluten  Appellate Body Report, United States – Definitive Safeguard Measures on 
Imports of Wheat Gluten from the European Communities , WT/DS166/AB/R , 
adopted 19 January 2001, DSR 2001:II, p. 717  
US – Wool Shirts and Blouses  Appellate Body Report, United States – Measure Affecting Imports of Woven 
Wool Shirts and Blouses from India , WT/DS33/AB/R , adopted 23 May 1997, 
and Corr.1, DSR 1997:I, p. 323  
US – Softwood Lumber  V Appellate Body Report, United States – Final Dumping Determination on 
Softwood Lumber from Canada , WT/DS264/AB/R , adopted 31 August 2004, 
DSR 2004:V, p. 1875  WT/DS436/ RW 
 
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  Short Title  Full Case Title and Citation  
US – Zeroing (EC)  
(Article  21.5 – EC) Appellate Body Report, United States – Laws, Regulations and Methodology 
for Calculating Dumping Margins ("Zeroing") – Recourse to Article  21.5 of the 
DSU by the European Communities , WT/DS294/AB/RW  and Corr.1, adopted 
11 June 2009, DSR 2009:VII, p. 2911  
US – Zeroing (EC)  
(Article  21.5 – EC) Panel Report, United States – Laws, Regulations and Methodology for 
Calculating Dumping Margins ("Zeroing") – Recourse to Article  21.5 of the 
DSU by the European Communities , WT/DS294/RW , adopted 11 June 2009, 
as modified by Appellate Body Report WT/DS294/AB/RW, DSR 2009:VII, 
p. 3117 WT/DS436/ RW 
 
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  EXHIBITS REFERRED TO  IN THIS REPORT  
Exhibit  Short Title (i f any)  Description  
IND-5 USITC's 2001 
Determination  USITC, hot -rolled steel products from Argentina and South Africa, 
investigation No. 701 -TA-404 (Final) and investigation 
Nos. 731-TA-898 and 905 (Final), Publication 3446 (August 2001)  
IND-6 2000 Issues and 
decision memorandum  Issues and decision memorandum, Final results of the 
countervailing duty investigation, 66 ITADOC 49635 
(28 September 2001)  
IND-8 Indian Supreme Court 
Judgment  Supreme Court, Tata Iron and Steel Co Limited v. Collector of 
Central Excise, Jamshedpur (24 October 2002) 8, 338  
IND-13 GOI's supplemental 
questionnaire response, 
2004 administrative 
review  Administrative review for the period 01/01/04 -12/31/04, 
GOI's  supplemental questionnaire response (2 September 2005)  
IND-14 Preliminary results of 
administrative review 
(2004)  Notice of preliminary results of countervailing duty administrative 
review, 71 FR 1512 (10 January 2006)  
IND-15 Final results of 
administrative review 
(2004)  Issues and decision memorandum, Final results of administrative 
review (10 May 2006)  
IND-18 GOI's questionnaire 
response, 2006 
administrative review  Administrative review for the period 01/01/06 -12/31/2006, 
GOI's  response to the USDOC's  questionnaire dated 16 April 2007 
(23 April 2007)  
IND-30 Essar's supplemental 
questionnaire response, 
2006 administrative 
review  Essar Steel Limited's supplemental questionnaire response, 2006 
AR (14 November 2007)  
IND-32 2006 Preliminary results 
of CVD administrative 
review  Notice of preliminary results of countervailing duty administrative 
review, 2006 AR, 73 FR 1578 (9 January 2008)  
IND-33 Tata's supplemental 
questionnaire response, 
2006 administrative 
review  Tata Iron and Steel Co Limited's questionnaire response to 
supplemental questionnaires dated 11 and 18 January 2008 
(8 February 2008)  
IND-35 GOI 2006 administrative 
review (8 February 
2008)  GOI's Response to supplemental questionnaire, 2006 AR 
(8 February 2008)  
IND-36 Tata verification exhibits  Certification of service of verification exhibits and minor 
corrections (17 March 2008)  
IND-38 2006 Issues and 
decision memorandum  Issues and decision memorandum, Final results of administrative 
review (7 July 2008)  
IND-41 Essar's supplemental 
questionnaire response, 
2007 administrative 
review  Essar Steel Limited's response to supplemental questionnaire, 
2007 AR (21 November 2008)  
IND-43 Final results of 
administrative review 
(2007)  Issues and decision memorandum, final results and partial 
recession of administrative review (29 April 2009)  
IND-48 JSW Amended final 
results (2010)  USDOC, certain hot -rolled carbon steel flat products from India, 
amended final results of countervailing duty administrative review 
pursuant to court decision, 75 FR 80455 (22 December 2010)  
IND-49 Tata Amended final 
results (2011)  USDOC, certain hot -rolled carbon steel flat products from India, 
amended final results of countervailing duty administrative review 
pursuant to court decision, 76 FR 77775 (14 December 2011)  
IND-55 Preliminary 
Determination  USDOC, Preliminary Determination on other issues, Section 129 
proceeding, countervailing duty measures on certain hot -rolled 
carbon steel flat products from India (WTO/DS436) (18 March 
2016)  
IND-56 Rejected case brief  USDOC, GOI's rejected case brief in Section 129 proceeding on 
other issues (28 March 2016)  
IND-57 Case brief  USDOC, GOI's  revised case brief in Section 129 proceeding on 
other issues (31 March 2016)  
IND-58 USITC's Section 129 
Determination  USITC, hot -rolled steel products from India, investigation 
No. 701-TA-405 (Section 129 Consistency Determination), 
Publication 4599 (March 2016)  
IND-59 Transcript of the hearing 
before the USDOC  Transcript of the hearing before USDOC's International Trade 
Administration (8 April 2016)  WT/DS436/ RW 
 
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  Exhibit  Short Title (i f any)  Description  
IND-60 Final Determination  USDOC, Final Determination, Section 129 proceeding, 
countervailing duty measures on certain hot -rolled carbon steel 
flat products from India (WTO/DS436) (14 April 2016)  
IND-63 DSB minutes 
WT/DSB/M/380  DSB, Minutes of the meeting held on 22 June 2016, 
WT/DSB /M/380 (26 September 2016)  
IND-64 DSB minutes 
WT/DSB/M/385  DSB, Minutes of the meeting held on 26 September 2016, 
WT/DSB/M/385 (1 November 2016)  
IND-65 DSB minutes 
WT/DSB/M/387  DSB, Minutes of the meeting held on 26 October 2016, 
WT/DSB /M/387 (5 December 2016)  
IND-66 Hoda Report  A. Hoda, "National Mineral Policy, report of the High Level 
Committee", GOI (December 2006)  
IND-67 Excerpt from Dang 
Report, Expert Group 
Report  Excerpt from R. K. Dang (chair), "Report of the Expert Group on 
preferential grant of mining leases for iron -ore, manganese ore 
and chromium ore"  
USA-2 Dang Report  Letter dated 23 May 2007 to Secretary Gutierrez, "Fifth 
administrative review of certain hot -rolled carbon steel flat 
products from India", exhibit 31, R. K. Dang (chair), "Report of 
the Expert Group on preferential grant of mining leases for 
iron-ore, man ganese ore and chromium ore"  
USA-3 Verification Report  Memorandum dated 3 January 2006 to E. B. Greynolds , 
programme manager, "Verification of the questionnaire responses 
submitted by the Government of India"  
USA-8 Hoda Report  Letter dated 23 May 2007 to Secretary Gutierrez, "Fifth 
administrative review of certain hot -rolled carbon steel flat 
products from India", exhibit 10: A. Hoda, "National Mineral 
Policy, report of the High Level Committee", GOI (December 
2006)  
USA-14 GOI's supplemental 
questionnaire response 
2001 Letter dated 20 March 2001 to Secretary Evans, "countervailing 
duty investigation of certain hot -rolled carbon steel flat products 
from India"  
USA-17 USDOC  Implementation 
of Section 129 
Determination  USDOC, certain hot -rolled carbon steel flat products from India, 
Implementation of determinations under Section 129 of the 
Uruguay Round Agreements Act, 81 Fed. Reg. 27,412 (6 May 
2016)  
USA-31 GOI's  Section 129 brief  USITC, GOI's Section 129 brief  
USA-36  Letter dated 23 June 2016 from the Office of the USTR to the 
USDOC  
USA-37  Letter dated 28 June 2016 from the USDOC in response to the 
Office of the USTR  
 
 WT/DS436/ RW 
 
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  ABBREVIATIONS USED I N THIS REPORT  
Abbreviation  Description  
CIT Court of International Trade  
COMPAS  commercial policy analysis system  
Covered Agreements  The covered Agreements of the WTO  
CVD countervailing dut y 
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes  
Essar  Essar Steel India Limited  
GATT 1994  General  Agreement on Tariffs and Trade 1994  
GOI Government of India  
ISPAT  Ispat Industries Limited  
JPC Joint Plant Committee  
JSW JSW Steel Limited  
LTAR less than adequate remuneration  
MMDR Act  Mines and Minerals (Development and Regulation) Act  
MML Mysore Minerals Limited  
NMDC  National Mineral Development Corporation  
POI  Period of investigation  
POR Period of review  
SCM Agreement  Agreement on Subsidies and Countervailing Measures  
SDF Steel Development Fund  
Tata Tata Iron and Steel Co Limited  
URAA  Uruguay Round  Agreement s Act 
USC United States Code  
USDOC  United States  Department of Commerce  
USITC  United States  International Trade Commission  
USTR  United  States Trade Representative  
Vienna Convention  Vienna Convention on the Law of Treaties, Done at Vienna, 23 May 1969, 1155 
UNTS 331; 8 International Legal Materials 679  
WTO World Trade Organization  
 WT/DS436/ RW 
 
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  1  INTRODUCTION  
1.1  Complaint by India  
1.1.  This compliance dispute concerns India 's claims against measures taken by the United  States  
to comply with the recommendations and rulings of the Dispute Settlement Body (DSB) in the 
original proceeding in United  States  – Countervailing Measures on Certain Hot -Rolled Carbon Steel 
Flat Products from India . 
1.2.  On 5 June 2017, India requested consulta tions with the United  States  pursuant to paragraph  1 
of the  Agreement  between India and the United  States  dated 6 May 2016 concerning "Agreed 
Procedures under Articles  21 and 22 of the Understanding on Rules and Procedures Governing the 
Settlement of Dispu tes (DSU) ".1  
1.3.  Consultations were held on 13 July 2017 and 4 October 2017 . These consultations  failed to 
resolve the dispute.  
1.2  Panel establishment and composition  
1.4.  On 29 March 2018, India requested the establishment of a panel pursuant to Articles  6 and 
21.5 of the DSU, Article  XXIII of the General  Agreement  on Tariffs and Trade 1994 ( GATT 1994 ), 
and Article  30 of the  Agreement  on Subsidies and Countervailing Measures  (SCM Agreement ) with 
standard terms of reference.2 At its meeting on 27 April 2018, the DSB referred this dispute to the 
original panel in accordance with Article  21.5 of the DSU.  
1.5.  The Panel 's terms of reference are the following:  
To examine, in the light of the relevant provisions of the covered  Agreeme nts cited by 
the parties to the dispute, the matter referred to the DSB by India in document 
WT/DS43 6/18 and to make such findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in those  Agreement s.3  
1.6.  In accordan ce with Article  21.5 of the DSU, the Panel was composed on 25 May 2018 as follows:  
Chairperson:  Mr Hugh McPhail  
 
Members:   Mr Anthony Abad  
Mr Hanspeter Tschaeni  
 
1.7.  Canada, China, Egypt, the European  Union , Japan, and the Russian Federation notified their 
interest in participating in the Panel proceedings as third parties.  
1.3  Panel proceedings  
1.8.  After consultation with the parties, the Panel adopted its Working Procedures4 and timetable 
on 27 June 2018. The Panel subsequently revised its timetable on 24 Septemb er 2018 and 
14 February  2019.  
1.9.  The Panel held its substantive meeting with the parties on 30 and 31 January 2019. A session 
with the third parties took place on 31 January 201 9. The Panel issued its Interim Report to the 
parties on 12 July 2019 . The Panel issued its Final Report to the parties on 4 October 2019 . 
2  FACTUAL ASPECTS  
2.1.  This compliance dispute concerns the imposition by the United  States  of countervailing duties  
(CVDs)  on imports of certain hot -rolled carbon steel flat products from Indi a. India has challenged 
 
1 Request for consultations by India, WT/DS436/17 ( India's  consultations request).  
2 Request for the establishment of a panel by India, WT/DS436/18  (India's  panel request).  
3 Constitution note of the Panel, WT/DS436/19 . 
4 Panel's  Working Procedures ( Annex A -1). WT/DS436/ RW 
 
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  the following measures, and their amendments, replacements, implementing acts  (as identified in 
India's panel request ), or any other related measure in connection with them:  
a. Original Investigation:  
i. Preliminary Affirmative Counterva iling Duty Determination and Alignment of Final 
Countervailing Determination With Final Antidumping Duty Determinations: Certain 
Hot-Rolled Carbon Steel Flat Products From India: 66 FR 20240 -01, April 20, 2001.  
ii. Issues and Decision Memorandum – Final Resul ts of the Countervailing Duty 
Investigations: Certain Hot -Rolled Carbon Steel Flat Products From India, 66 ITADOC 
49635, September 21, 2001.  
iii. Final Affirmative Countervailing Duty Determination: Certain Hot -Rolled Carbon Steel 
Flat Products From India, 66 FR 49635 -01, September 28, 2001.  
iv. Injury Determination: Hot Rolled Steel Products from China, India, Indonesia, 
Kazakhstan, Netherlands, Romania, South Africa, Taiwan , Thailand, and Ukraine , 
701-TA-405-408 and 731-TA-899-904 and 906 -908, Pub. 3468, United  States  
International Trade Commission  (USITC) , November 2001.  
v. Amended Final Results of Countervailing Duty Orders : Certain Hot -Rolled Carbon Steel 
Flat Products From India and Indonesia , 66 FR 60198 -01, Dec ember 3, 2001.  
vi. Countervailing Duty Order in the Investigation: Certain Hot  Rolled Carbon Steel Flat 
Products from India , January 8, 2002.  
b. Administrative Review: period of review ( POR) April 20, 2001 through December 31, 2002  
i. Preliminary Results of Countervailing Duty Administrative Review: Certain Hot -Rolled 
Carbon Steel Flat Products from India, 69 FR 907 -01, January 7, 2004.  
ii. Issues and Decision Memorandum – Final Results of the Countervailing Duty 
Investigation: Certain Hot -Rolled Carbon Steel Fl at Products From India, 69 ITADOC 
26549, May 6, 2004.  
iii. Final Results of Countervailing Duty Administrative Review: Certain Hot -Rolled Carbon 
Steel Flat Products from India, 69 FR 26549 -01, May 13, 2004.  
c. Administrative Review: POR January 1, 2004 through D ecember 31, 2004  
i. Preliminary Results of Countervailing Duty Administrative Review: Certain Hot -Rolled 
Carbon Steel Flat Products from India, 71 FR 1512 -01, January 10, 2006.  
ii. Issues and Decision Memorandum – Final Results of Administrative Review of the 
Countervailing Duty Order: Certain Hot -Rolled Carbon Steel Flat Products from India, 
71 ITADOC 28665,  May 10, 2006.  
iii. Final Results of Countervailing Duty Administrative Review: Certain Hot -rolled Carbon 
Steel Flat Products from India, 71 FR 28665 -01, M ay 17, 2006.  
d. Sunset Review:  
i. Issues and Decision Memorandum – Final Results of Expedited Sunset Reviews of the 
Countervailing Duty Orders: Certain Hot -Rolled Carbon Steel Flat Products from 
Argentina, India, Indonesia, South Africa, and Thailand, 71 ITADO C 70960, 
December  7, 2006.  WT/DS436/ RW 
 
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  ii. Final Results of the Expedited Five -Year (Sunset) Reviews of the Countervailing Duty 
Orders: Certain Hot -Rolled Carbon Steel Flat Products from Argentina, India, 
Indonesia, South Africa, and Thailand, 71 FR 70960 -03, December 7, 2006.  
iii. Injury Determination – Hot Rolled Steel Products from China, India, Indonesia, 
Kazakhstan, Argentina, Romania, South Africa, Taiwan , Thailand, and Ukraine, 
701-TA- 404-408 and 731-TA-898-902 and 904 -908 (Review), Pub. 3956, USITC , 
October 2007.  
iv. Continuation of Antidumping Duty and Countervailing Duty Orders – Certain Hot -Rolled 
Carbon Steel Flat Products from India, Indonesia, the People 's Republic of China, 
Taiwan , Thailand, and Ukraine, 72 FR 73316 -03, December 27, 2007.  
e. Admin istrative Review: POR January  1, 2006 through December 31, 2006  
i. Preliminary Results of Countervailing Duty Administrative Review: Certain Hot -Rolled 
Carbon Steel Flat Products from India, 73 FR 1578 -02, January 9, 2008.  
ii. Issues and Decision Memorandum – Final Results of Countervailing Duty 
Administrative Review: Certain Hot -Rolled Carbon Steel Flat Products From India, 
73 ITADOC 40295, July 7, 2008.  
iii. Final Results of Countervailing Duty Administrative Review: Certain Hot -Rolled Carbon 
Steel Flat Products From India, 73 FR 40295 -02, July 14, 2008.  
f. Administrative Review: POR January 1, 2007 through December 31, 2007  
i. Preliminary Results of Countervailing Duty Administrative Review: Certain Hot -Rolled 
Carbon Steel Flat Products from India, 73 FR 79791 -01, December 30, 2008.  
ii. Issues and Decision Memorandum – Final Results of Countervailing Duty 
Administrative Review: Certain Hot -Rolled Carbon Steel Flat Products from India, 
74 ITADOC 20923, April 29, 2009.  
iii. Final Results of Countervailing Duty Administra tive Review: Certain Hot -Rolled Carbon 
Steel Flat Products from India, 74 FR 20923 -01 May 6, 2009.  
g. Administrative Review: POR January 1, 2008 through December  31, 2008  
i. Preliminary Results of Countervailing Duty Administrative Review: Certain Hot -Rolled 
Carbon Steel Flat Products from India, 75 FR 1496 -01, January 11, 2010.  
ii. Issues and Decision Memorandum – Final Results of Countervailing Duty 
Administrative Review: Certain Hot  Rolled Carbon Steel Flat Products from India, 
75 ITADOC 43488, July 19, 2010.  
iii. Final Results of Countervailing Duty Administrative Review – Certain Hot  Rolled Carbon 
Steel Flat Products from India, 75 FR 43488 -01, July 26, 2010.  
h. In relation to the proceedings by the United  States  Department of Commerce  (USDOC) :  
i. Certain Hot -Rolled Carbon Steel Flat Products from India: Notice of Commencement 
of Compliance Proceedings Pursuant to Section  129 of the Uruguay Round  Agreement s 
Act (URAA) , 80 FR 57336 dated September 23, 2015.  
ii. Section  129 Proceeding: United  States  – Countervailing Duty Measures on Certain 
Hot-Rolled Carbon Steel Flat Products from India (WTO/DS436): Preliminary 
Determination of Facts Available dated March 17, 2016.  WT/DS436/ RW 
 
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  iii. Section  129 Proceeding: United  States  – Countervailing Duty Measures on Certain 
Hot-Rolled Carbon Steel Flat Products from India (WTO/DS436): Preliminary 
Determination on Other Issues dated March 18, 2016.  
iv. Preliminary Determination – No Change: Section  129 Proceeding: United  States  – 
Countervailing Duty Measures on Certain Hot -Rolled Carbon Steel Flat Products from 
India (WTO/DS436) dated April 21, 2016 (DS436 -2004 and DS436 -2007).  
v. Calculations for Preliminary Determination: JSW Steel Limited (JSW) - Section  129 
Proceeding: United  States  – Countervailing Duty Measures on Certain Hot -Rolled 
Carbon Steel Flat Products from India (WTO/DS436) dated April 21, 2016 
(DS436 -2006).  
vi. Calculations for Preliminary Determination: Tata Iron and Steel Co. Limited  
(Tata) - Section  129 Proceeding: United  States  – Countervailing Duty Measures on 
Certain Hot -Rolled Carbon Steel Flat Products from India (WTO/DS436) dated April 21, 
2016 (DS436 -2008).  
vii. Final Determination - Section  129 Proceeding: United  States  - Countervailing Duty 
Measures on Certain Hot -Rolled Carbon Steel Flat Products from India (WTO/DS436)  
dated April 14, 2016.  
viii. Calculations for Final Determination: Essar Steel India Limited (Essar) - Section  129 
Proceeding: United  States  – Countervailing Duty Measures on Certain Hot -Rolled 
Carbon Steel Fl at Products from India (WTO/DS436) dated April 21, 2016 
(DS436 -2006).  
ix. Calculations for Final Determination: Essar Steel India Limited (Essar) - Section  129 
Proceeding: United  States  – Countervailing Duty Measures on Certain Hot -Rolled 
Carbon Steel Flat Products from India (WTO/DS436) dated April 21, 2016 
(DS436 -2007).  
x. Calculations for Final Determination: Ispat Industries Limited (ISPAT) - Section  129 
Proceeding: United  States  – Countervailing Duty Measures on Certain Hot -Rolled 
Carbon Steel Flat Products from India (WTO/DS436) dated April 21, 2016 
(DS436 -2006).  
xi. Calculations for Final Determination: JSW Steel Limited (JSW) - Section  129 
Proceeding: United  States  – Countervailing Dut y Measures on Certain Hot -Rolled 
Carbon Steel Flat Products from India (WTO/DS436)  dated April 21, 2016 
(DS436 -2006).  
xii. Calculations for Final Determination: Tata Steel Ltd. (Tata) - Section  129 Proceeding: 
United  States  – Countervailing Duty Measures on Ce rtain Hot -Rolled Carbon Steel Flat 
Products from India (WTO/DS436) dated April 21, 2016 (DS436 -2006).  
xiii. Calculations for Final Determination: Tata Steel Ltd. (Tata) - Section  129 Proceeding: 
United  States  – Countervailing Duty Measures on Certain Hot -Rolled Carbon Steel Flat 
Products from India (WTO/DS436) dated April 21, 2016 (DS436 -2008).  
xiv. Certain Hot -Rolled Carbon Steel Flat Products from India: Implementation of 
Determinations Under Section  129 of the URAA , 81 FR 27412  dated May 6, 2016.  
xv. Amended c ash deposit instructions for certain hot -rolled carbon steel flat products from 
India pursuant to the final determination under Section  129 (C-533-821) dated 
May 13, 2016.  
 
i. In relation to the proceedings by the USITC :  WT/DS436/ RW 
 
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  i. Letter from the Chairman of the USIT C to United States Trade Representative ( USTR ) 
Ambassador dated October 23, 2015.  
ii. Hot-Rolled Steel Products from India; Scheduling of a Countervailing Duty Proceeding 
Under the URAA, Investigation No. 701 –TA–405 ( Section  129 Consistency 
Determination), USITC , 80 FR 75132, dated  December  1, 2015.  
iii. Hot-rolled Steel products from India, Investigation No. 701 -TA-405 ( Section  129 
Consistency Determination), USITC , Publication 4599  dated March  7, 2016.  
j. Others:  
i. Section 19 United  States Code (USC)  1677 (7)(G)(iii) .5  
ii. Dispute Settlement Body, Minutes of the Meeting dated 21 July 2016, WT/DSB/M/383, 
dated  October 11, 2016.  
3  PARTIES ' REQUESTS FOR FINDING S AND RECOMMENDATION S 
3.1.  India requests the Panel to find that: 
a. The United States' failure to amend or repeal 19 USC § 1677(7)(G)( iii)6 is inconsistent 
with the DSB recommendation in this dispute as well as Articles  15.1, 15.2, 15.3, 15.4 , 
and 15.5 of the SCM  Agreement . 
b. The United  States ' determination regarding the existence of a financial contribution is 
inconsistent with Article  1.1(a)(1) of the SCM  Agreement . 
c. The United  States  determination regarding de facto specificity of "sale of high grade iron 
ore by [National Mineral Development C orporation ]", "Mining rights of Iron Ore" and 
"Mining of Coal" is inconsistent with Articles  2.1(c) and 2.4 of the SCM  Agreement .  
d. The United  States ' failure to provide a notice of information which it required from India 
and rejection of information volun tarily submitted by India during Section  129 
Determination is inconsistent with Article  12.1 of the SCM  Agreement . 
e. The United  States ' failure to inform India and all interested parties of the essential facts 
under consideration which form the basis for the decision as to whether to apply definitive 
measures is inconsistent with Article  12.8 of the SCM  Agreement . 
f. The exclusion of and the failure to adequately explain the exclusion of (i) available 
in-country benchmarks for iron ore; and (ii) National Mineral Development Corporation  
(NMDC )'s export prices, as benchmarks, when determining benefit conferred by the 
alleged programmes titled "s ale of high grade iron ore by NMDC" and "Mining rights of 
Iron Ore" is inconsistent with the chapeau to Article  14 and Article  14(d) of the 
SCM Agreement . 
g. The continued imposition of CVD s against the Steel Development Fund ( SDF) programme 
without accountin g for the borrower 's cost in obtaining loans under that programme is 
inconsistent with the chapeau  of Article  14 and Article  14(b) of the SCM  Agreement . 
h. The United  States ' failure to consider the existence of a link or relationship or explanatory 
force bet ween the import of the alleged subsidized imports and the price of the domestic 
like products is inconsistent with Articles  15.1 and 15.2 of the SCM  Agreement . 
 
5 This is the formulation used by India in its panel request. We acknowledge that this formulation 
contains a typographical error and that the correct reference is " 19 USC § 1677(7)(G) (i)(III)". See 
section  7.9.2 below.  
6 See footnote 5 above.  WT/DS436/ RW 
 
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  i. The United  States ' failure to examine and evaluate the existence of a link or relationship 
or explanatory force between the alleged subsidized imports and the state of the domestic 
industry is inconsistent with Articles  15.1 and 15.4  of the SCM  Agreement . 
j. The erroneous examination of causal link by the United  States  is inconsistent with 
Articles  15.1 and 15.5 of the SCM  Agreement . 
k. The unilateral termination of the CVD rate agreed between JSW and the USDOC in the 
Amended Final Results of Countervailing Duty Administrative Review Pursuant to Court 
Decision , 75 FR 80455 dated 22 December 201 0 and between Tata and the USDOC in the 
Amended Final Results of Countervailing Duty Administrative Review Pursuant to Court 
Decision , 76 FR 77775 dated 14 December 2011 is inconsistent with Article  19.3 of the 
SCM Agreement . 
l. The continued imposition of CV D against new subsidy program mes pursuant to 
Section  129 Determination pertaining to 2004, 2006, 2007 , and 2008  administrative 
reviews  (ARs) is inconsistent with Articles  21.1 and 21.2 of the SCM  Agreement . 
m. The imposition of CVD against "Mining rights of I ron Ore" and "Mining of Coal" is 
inconsistent with Articles  21.1 and 21.2 of the SCM  Agreement . 
n. As a consequence of the inconsistencies mentioned hereinabove, the measures are 
inconsistent with Article  10 of the SCM  Agreement  and Article  VI of the GATT 199 4.  
3.2.  India requests the Panel to find that the United  States  has failed to comply with the 
recommendations and rulings of the DSB.  
3.3.  The United  States  requests that the Panel find that the United  States  has complied with the 
recommendations and rulings of the  DSB and that the United  States ' measures taken to comply are 
not inconsistent with the SCM  Agreement  or the GATT 1994. The United  States  further requests that 
the Panel reject India 's claims to the contrary.  
4  ARGUMENTS OF THE PAR TIES  
4.1.  The arguments of the parties are reflected in their executive summaries that were provided to 
the Panel in accordance with paragraph 23 of the Working Procedures, as adopted by the Panel 
(see Annex es B-1 and B -2). 
5  ARGUMENTS OF THE THI RD PARTIES  
5.1.  The argumen ts of Canada, China, Egypt, the European  Union  and Japan are reflected in 
their executive summaries in accordance with paragraph 26 of the Working Procedures (see 
Annexes  C-1, C-2, C-3, C-4, and C -5).7  
6  INTERIM REVIEW  
6.1.  On 12 July 2019, the Panel issued its Interim Report to the parties. On 26 July 2019, India and 
the United States submitted their written request s for review. In addition to its written request, the 
United States also requested that the Panel hold an interim review meeting with the parties in 
particular in respect of paragraphs 7.305 to 7.319 of the Interim Report. On 9  August  2019, India 
and the Un ited States submitted comments on each other's requests for review of those "precise 
aspects of the interim report" for which no interim review meeting was requested. The Panel held 
an interim review meeting with the parties on 19 August 2019 with respect to those "precise aspects 
of the interim report" for which the United States had requested that meeting. On the same day, 
 
7 The Panel informed the third part ies in a communication dated 13 March 2019  that it would use 
Egypt's  third-party submission and China's  third-party statement as their executive summaries pursuant to 
paragraph 26 of the Working Procedures. The Russian Federation indicated on 7 March 2019 that it would not 
submit an executive summary, and we note that the Russian Federation did not submit a third -party 
submission nor make a third -party statement.  
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  India requested the opportunity to provide written comments in response to the United States' oral 
statement at the interim review mee ting.8 In its response dated 20 August 2019, the United States 
requested that the Panel reject India's request or, alternatively, allow the United States to comment 
on India's comments.9 On 21 August 2019, the Panel informed the parties of its decision to allow 
them to file additional written comments. India filed its written comments on 26 August 2019; the 
United States submitted its comments on 29 August 2019. The requests made at the interim review 
stage as well as the Panel's discussion and disposition of those requests are set out in Annex A -3. 
7  FINDINGS  
7.1  General principles regarding treaty interpretation, standard of review, and burden of 
proof  
7.1.1   Treaty interpretation  
7.1.  Article  3.2 of the DSU provides that the WTO dispute settlement system serves to clarify the 
existing provisions of the covered  Agreement s "in accordance with customary rules of interpretation 
of public international law". It is generally accepted that the principles codified in Articles  31 and 32 
of the Vienna Convention on the Law of Treatie s are such customary rules.10 
7.1.2   Standard of review  
7.2.  Panels generally are bound by the standard of review set forth in Article  11 of the DSU, which 
provides, in relevant part, that:  
[A] panel should make an objective assessment of the matter before it, includin g an 
objective assessment of the facts of the case and the applicability of and conformity 
with the relevant covered  Agreement s. 
7.3.  The Appellate  Body has stated that the "objective assessment" to be made by a panel reviewing 
an investigating authority 's determination is to be informed by an examination of whether the 
authority provided a reasoned and adequate explanation as to : (a) how the evidence on the record 
supported its factual findings; and (b) how those factual findings supported the overall 
determina tion.11 
7.4.  The Appellate  Body has also stated that a panel reviewing an investigating 
authority 's determination may not undertake a de novo  review of the evidence or substitute its 
judgment for that of the investigating authority. At the same time, a panel mus t not simply defer to 
the conclusions of the investigating authority. A panel 's examination of those conclusions must be 
"in-depth" and "critical and searching".12  
7.5.  A panel must limit its examination to the evidence that was before the authority during the 
course of the investigation and must take into account all such evidence submitted by the parties to 
the dispute.13 In that regard, a panel may be called upon to respond to allegations by a complainant 
concerning the significance of record eviden ce that the investigating authority allegedly ignored, or 
on which it placed insufficient weight, or from which it drew incorrect inferences, or that there was 
no record evidence that could have possibly substantiated its conclusion .14 The fact that an 
investigating authority has not cited every piece of record evidence which negates – or 
substantiates  – these kinds of allegations does not mean that a panel is prevented from considering 
such evidence to test the veracity of such allegations. A panel 's review  of the record evidence in 
order to establish the veracity of such allegations , and thus determine whether the complainant ha s 
 
8 India's letter to the Panel of 19 August 2019.  
9 United States' letter to the Panel of 20 Aug ust 2019.  
10 Appellate  Body Reports, US – Gasoline , DSR 1996:I, pp.  15-16; Japan – Alcoholic Beverages  II, 
DSR 1996:I,  p. 10, sect ion D.  
11 Appellate  Body Report, US – Countervailing Duty Investigation on DRAMS , para.  186. 
12 Appellate  Body Reports, US – Softwood Lumber  VI (Article  21.5 – Canada) , para. 93; and US – Lamb , 
paras.  106-107. 
13 Appellate  Body Report, US – Countervailing Duty Investigation on DRAMS , para. 187. 
14 Appellate  Body Report, EU – Fatty Alcohols (Indonesia) , para.  5.99. 
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  demonstrated sufficiently that the authority 's conclusions were  not reasoned and adequate,  does 
not amount to a de novo review of the record evidence.15 
7.6.  Likewise,  a panel 's examination of whether an investigating authority 's conclusions were 
reasoned and adequate is not necessarily limited to the pieces of evidence expressly  relied upon by 
the authority in its establishment and evaluation of the facts in arriving at a particular conclusion.16 
Rather, a panel may also take into consideration other pieces of evidence that were on the record 
and that are connected to the explanation provided by the i nvestigating authority in its 
determination. This flows from the principle that investigating authorities are not required to cite or 
discuss every  piece of supporting record evidence for each fact in the Final Determination.17 
However, since a panel 's review cannot be  de novo , ex post  rationalizations unconnected to the 
investigating authority 's explanation – even when founded on record evidence – cannot form the 
basis of a panel 's finding that the authority 's conclusion was reasoned and adequate .18 
7.7.  We also note that not every error made or questionable inference drawn by an investigating 
authority in its treatment of a given piece of evidence will necessarily rise to the level of a violation 
of an obligation of the WTO Agreements . Rather, a panel's e valuation of whether an investigating 
authority's explanation is "reasoned and adequate" requires an assessment of the totality of evidence 
relied upon by an investigating authority to justify its reasoning on a given point.19 
7.1.3   Burden of proof  
7.8.  The general pr inciples applicable to the allocation of the burden of proof in WTO dispute 
settlement require that a party claiming a violation of a provision of a WTO  Agreement  must assert 
and prove its claim.20 Therefore, India bears the burden of demonstrating that the  challenged 
measures are inconsistent with the WTO Agreements . In the context of Article  21.5 proceedings, 
this includes demonstrating that the United States did not take measures to comply with the 
DSB recommendation in the original dispute or, if it did,  that such measures are not consistent with 
the WTO Agreements.  A complaining party will satisfy its burden when it establishes a prima facie  
case, namely a case which, in the absence of effective refutation by the defending party, requires a 
panel, as a m atter of law, to rule in favour of the complaining party.21 It is generally for each party 
asserting a fact to provide proof thereof.22 
7.1.4   The scope of compliance proceedings  under Article  21.5 of the DSU  
7.9.  In the present dispute, the United  States  objects that a  number of India 's claims are outside 
of the scope of compliance proceedings under Article  21.5 of the DSU. We therefore provide an 
overview of the general principles governing the scope of compliance proceedings under Article  21.5 
of the DSU as relevant t o the present dispute, while addressing each of the United  States ' specific 
objections as they arise in the subsequent sections in light of these general principles.  
7.10.   Article  21.5 of the DSU provides, in relevant part:  
Where there is disagreement as to the existence or consistency with a 
covered  Agreement  of measures taken to comply  with the recommendations and rulings 
[of the DSB] such dispute shall be decided through recourse to these dispute settlement 
procedures, including wherever  possible resort to the original panel.23 
 
15 Appellate  Body Report, EU – Fatty Alcohols (Indonesia) , para.  5.99. 
16 Appellate  Body Report, Thailand – H-Beams , paras.  117-119. 
17 Appellate  Body Report, US – Countervailing Duty Investigation on DRAMS , para. 164. 
18 Appellate  Body Report, US – Lamb , paras.  153-161. See also Appellate  Body Reports, US – Steel 
Safeguards , para. 326; US – Softwood Lumber VI ( Article  21.5 – Canada) , para. 97; and Panel Reports, 
Argentina – Ceramic Tiles , para. 6.27;  Argentina – Poultry Anti -Dumping Duties , para. 7.48. 
19 See e.g. Appellate Body Report, Japan – DRAMs (Korea) , paras. 133 and 134. See also Panel Report, 
EC – Fasteners (China ), para. 7.359.  
20 Appellate  Body Report, US – Wool Shirts and Blouses , DSR 1997: I, p. 337. 
21 Appellate  Body Report, EC – Hormones , para. 104. 
22 Appellate  Body Report, US – Wool Shirts and Blouses , DSR 1997: I, p. 335. 
23 Emphasis added.  
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  7.11.   Panels and the Appellate  Body have explained that the purpose of Article  21.5 is to provide 
for expedited procedures to determine whether a Member has properly implemented the 
recommendations and rulings of the DSB in the dispute.24 The Appellate  Body has made clear that, 
compared to the original panel proceedings, Article  21.5 proceedings "do not concern just any 
measure".25 The mandate of a panel established under Article  21.5 is limited to an examination of 
"measure s 'taken to comply ' with the recommendations and rulings" of the DSB.26 These are 
"measures which have been, or which should be, adopted by a Member to bring about compliance 
with the recommendations and rulings of the DSB".27 Thus, the scope of Article  21.5 proceedings 
depends on : (a) the existence of relevant recommendations and rulings of the DSB ; and ( b) the 
existence (or otherwise) of measures taken to comply with those recommendations and rulings.  
7.12.   The scope of a panel 's jurisdiction with respect to what  measures and claims it may consider 
in an Article  21.5 compliance proceeding has been addressed by a number of panels and the 
Appellate  Body, and several fundamental principles have emerged from these decisions  and are also 
relevant for the case before us . On the one hand, in the interest s of ensuring prompt and thorough 
verification of compliance and due process for the complainant, it is now accepted that nothing in 
Article  21.5 limits the scope of a compliance panel 's mandate to considering only certain claims in 
relation to, or certain aspects of, a measure taken to comply. In other words, a measure taken to 
comply with the DSB 's recommendations and rulings is "a new and different measure" that must be 
examined in its totality, and an Article  21.5 panel must, in principle, examine all claims of 
inconsistency regarding the new measure, including those claims that are new and different from 
those raised in the original proceeding.28 Thus, a complainant can challenge all as pects of a new 
measure taken to comply, not only those aspects related to issues covered by the original 
proceeding.29  
7.13.   On the other hand , a compliance panel proceeding is not an opportunity to "re -litigate" issues 
that were addressed, or that could have be en addressed, in the original proceeding.30 The 
Appellate  Body has concluded that, in the context of a compliance proceeding, a complainant may 
be precluded from bringing the same claim with respect to an aspect of the respondent 's measure 
that is unchanged  from the original dispute.31 We agree with the Appellate Body's conclusion and 
adopt it as our own in the current proceedings. An unchanged aspect of the original measure that 
the respondent did not have to change, and did not change, in complying with the  recommendations 
and rulings of the DSB should  thus not be susceptible to challenge in a compliance proceeding.32 
This limitation is pertinent to  two circumstances of particular relevance to the present dispute.  
7.14.    First, this limitation applies when  a compla inant could have challenged the unchanged 
measure (or unchanged aspect thereof) in the original proceeding but chose not to .33 By definition, 
a claim that a complainant could have made in the original proceedings – but did not – will relate to 
a matter that  did not give rise to recommendations and rulings of the DSB . Such a claim would 
therefore not involve a "measure taken to comply" with recommendations and rulings of the 
DSB that is susceptible to challenge in compliance proceedings  under Article  21.5.34 However, a 
 
24 Appellate  Body Report, EC – Bed Linen (Article  21.5 – India) , para. 98; and Panel Reports, US – 
Countervailing Measures on Certain EC Products (Article  21.5 – EC), para. 7.74; Chile – Price Band System 
(Article  21.5 – Argentina) , para. 7.135.  
25 Appellate  Body Report, Canada – Aircraft ( Article  21.5 – Brazil) , para. 36. (emphasis original)  
26 Appellate  Body Report, US – Zeroing (EC)  (Article  21.5 – EC), para. 199. 
27 Appellate  Body Report, Canada – Aircraft (Article  21.5 – Brazil) , para. 36. 
28 Appellate  Body Reports, US – Shrimp (Article  21.5 – Malaysia) , paras.  86-87; Canada – Aircraft 
(Article  21.5 – Brazil) , paras.  40-42; and EC – Bed Linen (Article  21.5 – India) , para. 79. 
29 See, e.g. Panel Report, EC – Bananas III (Article  21.5 – Ecuador) , paras.  6.8-6.10. 
30 Appellate  Body Reports, EC – Bed Linen (Article  21.5 – India) , para.  96; US – Upland Cotton 
(Article  21.5 – Brazil) , para. 210; and Panel Report, US – Large Civil Aircraft (2nd complaint) (Article  21.5 – 
EU), para. 7.35. 
31 Appellate  Body Report, EC – Bed Linen ( Article  21.5 – India) , paras.  88-89. 
32 Appellate  Body Report, EC – Bed Linen ( Article  21.5 – India) , paras.  88-89. 
33 Appellate  Body Report, US – Tuna II (Mexico) (Article  21.5 – Mexico) , para. 5.8 
(quoting  Appellate  Body Reports, US – Upland Cotton (Article  21.5 – Brazil) , para.  211; US – Zeroing (EC) 
(Article  21.5 – EC), para. 424).  See United States'  first written submission, paras.  22-23 and fn 9; 
India's  second written submission, paras.  213-214. 
34 Further, since such a claim was not made in the original proceedings, its inclusion in compliance 
proceedings under Article  21.5 would  expand the scope of the dispute between the parties in a way that is not 
envisaged by Article  21.5, which instead relates only to compliance  with the recommendations and rulings of 
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  complainant can bring a new claim in compliance proceedings that it could have brought in the 
original proceedings – but did not – if the claim pertains to an aspect that is integral to  the steps 
taken by the investigating authority to comply w ith the rulings and recommendations of the DSB.35 
Therefore, the possibility to challenge an element of the measure at issue for the first time in 
compliance proceedings, even if that element may not have changed, hinges on the "critical 
question" of whethe r such an element forms "an integral part of the measure taken to comply".36  
7.15.   Second, this limitation applies when an issue is decided on the merits against the complainant 
in the original proceedings, such as when the complainant challenge d the unchanged measure (or 
aspect thereof) in the original proceeding but failed to establish a prima facie  case.37 Otherwise , a 
complainant could use  Article  21.5 proceedings as a "second chance" to reargue a claim that has 
been decided on the merits in an adopted report.38 The Appellate  Body has treated differently, 
however, cases in which claims against aspects of a measure were not  decided on the merits in the 
original proceedings . This is  because such claims , despite having been brought in the original 
proceeding,  are not covered by the recommendations and rulings of the DSB in respect of that 
proceeding .39 Accordingly, the Appellate  Body has entertained in compliance proceedings certain 
claims  that had been raised in original proceedings but on which no ruling on the merits  of the claims 
had been rendered.40 One example is where the Appellate  Body has reversed panel findings but has 
not been able to complete the legal analysis.41 Similarly, the Appellate  Body has permitted claims to 
be reasserted in compliance proceedings when the exercise of judicial economy has caused a claim 
to remain unresolved in the original proceedings w ithout a decision on the merits having been 
rendered .42 Thus, compliance proceedings cannot be used to "re -open" issues that were decided on 
the merits in the original proceedings.43 But claims against aspects of a measure that are not decided 
on the merits in the original proceedings are not covered by recommendations and rulings of the 
DSB and thus can be reasserted in compliance proceedings.44 
7.2  Public Body: India 's claims under Article  1.1(a)(1) of the SCM  Agreement  
7.2.1   Introduction  
7.16.   India requests the Panel to f ind that the USDOC's  determination regarding the existence of a 
"financial contribution" through the provision of high -grade iron ore by the National Mineral 
Development Corporation (NMDC) for less than adequate remuneration  (LTAR)  is inconsistent with 
Article  1.1(a)(1) of the SCM  Agreement due to a number of errors in its determination that the NMDC 
constitutes a "public body". These alleged errors are as follows. First, India submits that the USDOC 
erred in identifying the alleged  "governmental function" performed by the NMDC.45 Second, India 
submits that the USDOC erred in its treatment of evidence concerning the NMDC's  so-called 
"Miniratna status", according to which the NMDC is said to operate autonomously on commercial 
principle s.46 Third, India submits that the USDOC erred in its findings regarding the export 
restrictions applying to the NMDC and the significance of these to the "public body" determination.47 
 
the DSB  from the original  dispute . (Panel  Report, US – Large Civil Aircraf t (2nd complaint) (Article  21.5 – EU), 
para. 7.434).  
35 Appellate  Body Report, US – Zeroing (EC) (Article  21.5 – EC), paras.  432-433. 
36 Appellate  Body Report, US – Tuna II (Mexico) (Article  21.5 – Mexico) , para. 5.8 (quoting 
Appellate  Body Report, US – Zeroing (EC) (Article  21.5 – EC), para.  434).  
37 United States'  first written submission, para.  23; India's  second written submission, para.  9. 
38 Appellate  Body Reports, US – Large Civil Aircraft (2nd complaint) (Art icle 21.5 – EU), para. 5.19; US – 
Zeroing (EC) (Article  21.5 – EC), para.  427; and US – Upland Cotton (Article  21.5 – Brazil) , para.  210. The 
Appellate  Body has found that the same applies when a complainant has failed to establish a prima facie case. 
(Appellate  Body Report, EC – Bed Linen (Article  21.5 – India) , para.  96). 
39 Appellate  Body Report, US – Zeroing (EC) (Article  21.5 – EC), para.  424. 
40 Appellate  Body Report, US – Large Civil Aircraft (2nd complaint) (Article  21.5 – EU), para. 5.20. 
41 Appellate  Body Report, US – Upland Cotton (Article  21.5 – Brazil) , para.  210. 
42 Appellate  Body Report, US – Oil Country Tubular Goods Sunset Reviews (Article  21.5 – Argentina) , 
para. 148. 
43 Appellate  Body Report, US – Large Civil Aircraft (2nd complaint) (Article  21.5 – EU), para. 5.21. 
44 Appellate  Body Report, US – Large Civil Aircraft (2nd complaint) (Article  21.5 – EU), para. 5.21. 
45 India's  first written submission, paras.  80-82; second written submission, paras.  88-92. 
46 India's  first written submission, paras.  71-74; second written submission, paras.  85-87; and response 
to Panel question No.  11. 
47 India's  first written submission, paras.  75(b) and (c), and 78;  second written submission, 
paras.  99-102. 
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  Finally, India submits that the USDOC made an incorrect factual finding that the NMDC's  Directors 
appointed by the Government of India ( GOI) hold price negotiations for the sale of iron ore.48 These 
are largely standalone allegations of error that relate to individual aspects of the USDOC's  "public 
body" determination. The Unit ed States contends that, taken as a whole, the Panel should find the 
USDOC's  "public body" determination to be "reasoned and adequate" , and that India has not 
established that the conclusions reached by the USDOC were such that an unbiased and objective 
investigating authority could not have reached .49 
7.17.   We begin our assessment of these allegations of error by setting out the legal standard 
applicable to "public body" determinations. We then provide an overview of the legal and evidentiary 
background to the US DOC's  finding that the NMDC constitutes a "public body" – that is, the evidence 
and inferences that the USDOC accepted and rejected, and the legal standard that it applied. It is 
useful to trace this background in full at the outset of our assessment, give n that India's  allegations 
of error pertain to discrete and distinct aspects of the USDOC's  "public body" determination. This is 
followed by our evaluation of  each of India's  allegations of error regarding the USDOC's  "public body" 
determination.  
7.2.2   The legal  and evidentiary standard applicable to the public body enquiry  
7.18.   Article  1.1(a)(1) of the SCM  Agreement provides that a subsidy shall be deemed to exist if a 
financial contribution is provided by a government or any public body within the territory of a 
Member. The particular conduct of the government or public body must fall within any of the 
subparagraphs (i) to (iii) in Article  1.1(a)(1), or pursuant to subparagraph (iv), a government or 
public body may make payments to a funding mechanism, or otherwise e ntrust or direct a private 
body to carry out one or more of the type of functions illustrated in subparagraphs (i) to (iii).50  
7.19.   The Appellate  Body has explained that a public body within the meaning of Article  1.1(a)(1) 
"must be an entity that possesses, ex ercises or is vested with governmental authority".51 In 
evaluating whether an entity is a public body, a relevant enquiry is whether "an entity is vested with 
authority to exercise governmental functions".52 The Appellate  Body has further explained that 
"[w]hether the conduct of an entity is that of a public body must in each case be determined on its 
own merits, with due regard being had to the core characteristics and functions of the relevant 
entity, its relationship with the government, and the legal and economic environment prevailing in 
the country in which the investigated entity operates".53 In addition, "just as no two governments 
are exactly alike, the precise contours and characteristics of a public body are bound to differ from 
entity to entity, Sta te to State, and case to case".54 We find the Appellate  Body's  reasoning 
persuasive, and shall be guided by it in our own objective assessment of the matter.  
7.20.   Different types of evidence may be relevant to show that a government has bestowed 
authority on a p articular entity, including such as when a statute or legal instrument expressly vests 
authority in an entity.55 Absent express statutory delegation of governmental authority, evidence 
that an entity is in fact  exercising governmental functions may serve as  evidence  that the entity in 
question possesses or has been vested with governmental authority, particularly when the evidence 
points to a sustained and systematic practice.56 
 
48 India's first written submission, paras.  75(a) and 77; second written submission, paras.  94-98. 
49 United States'  first written submission, paras.  151-152, 164 -167, 171, 176 -177, 186,  and 192; 
second written submis sion, paras.  80-84, 94, 96, 105, 112, and 115-116. 
50 Appellate  Body Report, US – Anti-Dumping and Countervailing Duties (China) , para.  284. 
51 Appellate  Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 317. 
52 Appellate  Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 318. 
53 Appellate  Body Report, US – Carbon Steel (India) , para. 4.29. See also Appellate  Body Report, US – 
Anti-Dumping and Countervailing Duties (China) , para. 317 (" [p]anels or investigating  authorities confronted 
with the question of wheth er conduct falling within the scope of Article  1.1.(a)(1) is that of a public body will be 
in a position to answer that question only by conducting a proper evaluation of the core features of the entity 
concerned, and its relationship with government in th e narrow sense") . 
54 Appellate  Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 317. 
55 Appellate  Body Report s, US – Anti-Dumping and Countervailing Duties (China) , para. 318; US – 
Carbon Steel (India) , para. 4.10. 
56 Appellate  Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 318. 
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  7.21.   The Appellate  Body has also observed that "evidence that a government exercises m eaningful 
control over an entity and its conduct may serve, in certain circumstances as evidence that the 
relevant entity possesses governmental authority and exercises such authority in the performance 
of governmental functions".57 The Appellate  Body has c autioned, however, that "the mere ownership 
or control over an entity by a government, without more, is not sufficient to establish that the entity 
is a public body".58 Rather, "where evidence shows that the formal indicia of government control are 
manifold , and there is also evidence that such control has been exercised in a meaningful way, then 
such evidence may permit an inference that the entity concerned is exercising governmental 
authority".59  
7.22.   In the original proceedings in the present dispute, the App ellate  Body shed further light on its 
interpretation of "public body" and the evidentiary standard for "meaningful control" in its 
explanation of how the Panel erred:  
[T]he Panel erred in its substantive interpretation of Article  1.1(a)(1) by construing t he 
term "public body" to mean any entity that is "meaningfully controlled" by a 
government. …  
… the Panel did not analyse, in our view, the question of whether the GOI in fact 
exercised  control over the NMDC and its conduct. Nor did the Panel assess whether the 
USDOC had properly established that the NMDC "possesses, exercises or is vested with 
governmental authority", and is therefore a public body. …  
The Panel reviewed some indicia of c ontrol by the GOI (such as shareholding and the 
GOI's  involvement in the selection of directors), but did not address the question of 
whether there was evidence that the NMDC was performing governmental functions on 
behalf of the GOI.60 
In view of these rem arks, we recognize that it is not sufficient for an investigating authority to show 
than an entity is "meaningfully controlled" by a government for the purposes of a "public body" 
finding. Rather, it must also be shown that the entity is performing a gover nmental function, such 
that the entity is vested with, exercises, or possesses governmental authority.61 Such determinations 
are necessarily case -by-case.62 In terms of the process for identifying "governmental functions", we 
agree with the Appellate  Body th at "it may be relevant to consider 'whether the functions or conduct 
are of a kind that are ordinarily classified as governmental in the legal order of the relevant Member'" 
and "the classification and functions of entities within WTO Members generally".63 
 
57 Appellate  Body Report s, US – Anti-Dumping and Countervailing Duties (China) , para. 318; US – 
Carbon Steel (India) , para. 4.10. 
58 Appellate  Body Report, US – Carbon St eel (India) , para. 4.10. See also Appellate  Body Report, US – 
Anti-Dumping and Countervailing Duties (China) , para. 318 (" [w]e stress, however, that apart from an express 
delegation of authority in a legal instrument, the existence of mere formal links bet ween an entity and 
government in the narrow sense is unlikely to suffice to establish the necessary possession of governmental 
authority .") 
59 Appellate  Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 318. 
60 Appellate  Body Report, US – Carbon Steel (India) , paras.  4.36, 4.37, and 4.42 (emphasis original). 
See also Panel Report, US – Carbon Steel (India) , paras.  7.73, 7.80, and 7.89, and fn 261.  
61 Appellate  Body Report, US – Carbon Steel (India) , para. 4.52. T his also reflects the 
USDOC's  understanding of the DSB  ruling insofar as it w as guided by whether the NMDC performed a 
governmental function and whether the GOI exercised meaningful control over the NMDC  in order to 
demonstrate that it was a "public body".  (Preliminary Determination, (Exhibit IND -55), p. 7; Final  
Determination, (Exhibit IND -60), p. 19). The Appellate  Body seems to have been responding to the 
Panel's  statement in the original proceedings that: "[w]e consider that the USDOC's  determination, w hen 
viewed in light of the above -mentioned record evidence, effectively amounted to a determination that the 
NMDC was under the 'meaningful control'  of GOI", and that "[t]aking this view, we need not and do not 
address the United  States'  arguments relating  to the relevance of India's  legal order (and the performance of 
government function) to this matter". (Panel Report, US – Carbon Steel (India) , para. 7.89 and fn 261 
(fns omitted)).  
62 Appellate  Body Report, US – Carbon Steel (India) , para. 4.29 (referring  to Appellate  Body Report , 
US – Anti-Dumping and Countervailing Duties (China) , para. 317).  
63 Appellate  Body Report, US – Carbon Steel (India) , para. 4.9 (quoting  Appellate  Body Report,  US – 
Anti-Dumping and Countervailing Duties (China) , para. 297). 
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  7.23.   A further matter of interpretation raised in this dispute concerns the significance of an entity 
acting autonomously, or in commercial ways, to the "meaningful control" evidentiary standard and 
to the "public body" legal standard generally. The evidence on an entity's  autonomy from a 
government may shed light on their relationship, but it does not ipso facto  disqualify the entity from 
constituting a "public body". Rather, as just mentioned, "statutory delegation " – that is, the 
delegated  capacity to operate  autonomously – is one means of proving a "public body".64 In the 
original proceedings, the Appellate  Body considered that the USDOC's  failure to "discuss" the 
"evidence on record regarding  … Miniratna" – according to which, the NMDC was allegedly conferred  
with "enhanced autonomy"65 – manifested an error because such evidence "could have been 
relevant" to the question of meaningful control.66 For the Appellate  Body, the failure to discuss  such 
evidence reflected the application of an incorrect legal standard by the USDOC.67 The Appellate Body 
did not indicate that this evidence would be necessarily dispositive  to an affirmative or negative 
"public body" finding.  Thus, we do not accept that an entity acting autonomously necessarily 
disqualifies it from constitut ing a "public body".68 On the contrary, the delegation of autonomy by a 
government to an entity could in some circumstances indicate that it constitutes a "public body".  
7.24.   Further, we do not accept that an entity acting in commercial ways disqualifies it from  being 
a "public body".69 The SCM  Agreement includes provisions in relation to the benefit analysis which 
foreshadow explicitly that the entities regulated by the SCM  Agreement (including "public bodies") 
could be operating on commercial principles.70 Howeve r, that does not mean that whether an entity 
acts commercially – or uncommercially – is irrelevant to the "public body" analysis.71 For instance, 
if an entity's  practice is not profit -maximising, or if it is structurally incapable of acting in 
profit -maximi sing ways, this could corroborate other evidence from which it can be  inferred that the 
entity is performing a governmental function.72 Beyond that, in the absence of any direct textual 
guidance in the SCM  Agreement on the role of commercial or non -commercial conduct in identifying 
a "public body", it would be imprudent to affix rigid rules as to how evidence regarding such conduct 
should  be treated in a given "public body" determination. Rather, it is a matter for an investigating 
authority to determine the proper role and probative weight of the evidence regarding commercial 
or non -commercial conduct in a given case, and to justify its f indings on such evidence through a 
reasoned and adequate explanation.  
7.25.   We make a further observation regarding the evidentiary standard for proving "meaningful 
control" and for satisfying the legal test for "public body" determinations generally. The 
interpretation of any provision of the SCM  Agreement must leave intact an investigating 
authority's  ability to arrive at a negative or affirmative determination. A legal interpretation that 
 
64 That is, if the delegation involves a government vesting an entity with the authority to perform a 
governmental function.  
65 Appellate  Body Report, US – Carbon Steel (India) , para. 4.40. 
66 Appellate  Body Report, US – Carbon Steel (India) , para. 4.54. 
67 Appellate  Body Report, US – Carbon Steel (India) , paras.  4.41, 4.44, 4.52, and 4.54.  
68 To the extent this is India's  argument, we reject it. (India's  response to Panel question Nos.  5 and 11).  
69 To the extent this is India's  argument, we reject it. (India's  second written submission, 
paras.  88-89; response to Panel question Nos.  5 and 11).  
70 Article  14(b) of the SCM  Agreement presupposes that loans made by public bodies could be the same 
as "comp arable commercial loans", and likewise Article  14(d) presupposes that the provision of goods or 
services or p urchase of goods by a public body could reflect prevailing market conditions . If entities operating 
on commercial principles were excluded from the  scope of "public body" entirely, these provisions would be 
redundant, at least insofar as they involve identifying whether a benefit has been conferred. ( Appellate  Body 
Report, Brazil – Aircraft , para. 157; Panel Report, Korea – Commercial Vessels , para.  7.48).  
71 To the extent this is the United  States'  and Japan's  argument, we reject it. (United  States'  response 
to Panel question No.  14; Japan 's third-party response to Panel question No. 2, para.  6). 
72 See, e.g. Appellate  Body Report , US – Anti-Dumping an d Countervailing Duties (China) , paras.  350 
and 355. In an analogous reference to Article  1.1(a)(iv) of the SCM  Agreement, see Panel Report, EC – 
Countervailing Measures on DRAM Chips , para. 7.105 . We emphasize, however, that undue significance should 
not be accorded to individual instances of the entity's  conduct or actions (whether commercial or 
uncommercial). Rather, the focus of the enquiry is on the entity , and accordingly, evidence regarding its 
conduct (whether commercial or non -commercial) is relevant only where it sheds light on the features of the 
entity  itself. (P anel Report, US – Countervailing Measures (China) ( Article  21.5 – China) , paras.  7.28 and 
7.36) . We agree in this connection with India 's response to Panel question No. 14; Canada 's third-party 
response to Panel question No. 1, para.  1; China 's third-party response to Panel question Nos. 1-2, paras.  5-7; 
and European  Union's  third-party response to Panel question No. 2, para.  18. Moreover, we note that by 
avoiding the attachment of undue significance to individual transactions, the concern raised about the benefit 
analysis being subsumed by the public body analysis is avoided.  
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  imposes an evidentiary burden on an investigating authority that is imp ossible to satisfy in practice 
would not be consonant with the text and structure of the SCM  Agreement.73 Moreover, an 
evidentiary standard for proving "public body" that differentiates, in practice, between Members 
whose governments tend to control their e ntities through formal and publicly -documented methods 
vis-à-vis those who tend to control their entities through informal or undocumented methods would 
not be consonant with the proper interpretation of that term. If such an evidentiary standard were 
applied, it could lead to the term "public body" having a different scope in practice for different 
Members.74 This would frustrate the underlying objective of interpreting terms in treaties, namely 
to arrive at the common  intention of the parties.75 
7.26.   Finally, in  order to be able to provide a reasoned and adequate explanation of their conclusions 
on the existence of a "public body", the Appellate  Body has stated that investigating authorities are 
"under an obligation to actively seek out information relevant to th e analysis".76 This does not mean 
that Article  1.1(a)(1) of the SCM  Agreement embeds a standalone obligation to seek and accept 
evidence. Nothing in the text of Article  1.1(a)(1) justifies the existence of such a standalone 
obligation. Rather, the presence of sufficient evidence on the record is a corollary of an investigating 
authority being able to undertake the evaluation necessary to comply with the legal standard for a 
substantive obligation. If an investigating authority does not possess sufficient evi dence on the 
record to reach a determination, it may need to seek or accept additional evidence in order to be 
capable of providing a "reasoned and adequate" explanation that satisfies the requirements of  a 
substantive obligation. However, it does not foll ow that there is a standalone obligation in 
Article  1.1(a)(1) to seek or accept evidence separate from the basic requirement to provide a 
"reasoned and adequate" explanation.  
7.2.3   The USDOC's  determination on the NMDC as a public body  
7.27.   We now set out the legal and evidentiary background to the USDOC's  determination that the 
NMDC comprises a "public body" under Article  1.1(a)(1) of the SCM  Agreement.  
7.28.   It is useful to trace this background in full at the outset, given that India's  allegations of error 
pertain to d iscrete and distinct aspects of the USDOC's  "public body" determination. By setting out 
this background, we seek to contextuali ze our subsequent assessment of each of India's  allegations 
of error. This is an important aspect of our assessment because, on t he one hand, the United  States 
submits that India's  claims are focused too narrowly on individual inferences or pieces of evidence.77 
India's  view, on the other hand, is that the USDOC engaged in "selective reading of available 
evidence and rejected the inf ormation which did not support its pre -determined conclusions"  and 
engaged in a biased and unobjective assessment of evidence .78 
7.29.   We do not draw any conclusions at this stage. However, we do make a number of observations 
as we recount the legal and evidentia ry background to the USDOC's  determination. These 
observations seek to contextuali ze this background in light of the Appellate  Body's  legal and 
evidentiary standard for "public body" determinations described in section  7.2.2. These observations 
are without prejudice to our subsequent evaluation of India's allegations, and should not be taken 
to imply any conclusions.79  
 
73 Article  12.12 of the SCM Agreement: "[t]he procedures set out above are not intended to prev ent the 
authorities of a Member from proceeding expeditiously with regard to initiating an investigation, reaching 
preliminary or final determinations, whether affirmative or negative, or from applying provisional or final 
measures, in accordance with rele vant provisions of this  Agreement." Article  12.7 creates a mechanism for 
investigating authorities to proceed with an investigation and reach preliminary and final determinations 
(affirmative or negative) "[i]n cases in which any interested Member or inter ested party refuses access to, or 
otherwise does not provide, necessary information within a reasonable period or significantly impedes the 
investigation".  
74 European  Union's  third-party response to Panel question No. 1, paras.  10-13. 
75 Appellate  Body Repo rt, EC and certain member States – Large Civil Aircraft , para.  845. 
76 Appellate  Body Report, US – Anti-Dumping and Countervailing Duties (China) , paras.  344 and 346.  
77 United  States first written submission, para.  165. 
78 India's second  written submission, para. 84. 
79 For instance, our observations in this section do not imply a conclusion that the 
USDOC's  determination was necessarily "reasoned and adequate". There may be probative contradictory 
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  7.30.   We begin in this section by recounting the legal standard and elements of evidence relied 
upon by the USDOC in its Preliminary Determination that the NMDC comprises a "public body". We 
then set out the legal and evidentiary arguments that the GOI made in r ebuttal to the Preliminary 
Determination. Finally, we set out how the USDOC responded to these rebuttals, and explain the 
legal and evidentiary basis for its Final Determination.  
7.2.3.1   The USDOC's  Preliminary Determination  
7.31.   In its Preliminary Determination, the USDOC explained that it was "revising the analysis 
underlying these four determinations in accordance with findings in the relevant reports adopted by 
the WTO Dispute Settlement Body (DSB)"80, and explained its understanding of the applica ble "public 
body" DSB  finding as follows:  
The AB found that the Department did not provide a reasoned and adequate explanation 
of its basis for finding the NMDC to be a public body within the meaning of Article  1.1(a) 
of the SCM  Agreement. The AB explained  that a determination of whether an entity 
performs a government function is dependent on the entity's  position in the legal 
structure of the country in question, and found that the Department did not adequately 
analyze the extent to which the GOI exercise d meaningful control over the NMDC and 
its conduct.81 
7.32.   The USDOC assessed certain evidence and reached the following Preliminary Determination:  
Because the NMDC is exploiting public resources on the behalf of the Indian 
government, the owner of the resource s, the Department preliminarily determines the 
GOI exercises meaningful control over the NMDC, which is vested with government 
authority in performing a government function in India. Therefore, we preliminarily 
determine that the NMDC is a government autho rity within the meaning of section 
771(5)(B) of the Act, and thus a public body within the meaning of Article  1.1(a)(1) of 
the SCM  Agreement.82 
7.33.   It is apparent from these extracts that the legal standard that the USDOC sought to apply for 
its "public body" d etermination was whether the NMDC was vested with governmental authority in 
India. The USDOC was guided in this regard by whether the NMDC performed a governmental 
function and whether the GOI exercised of meaningful control over the NMDC.  
7.34.   The evidence cit ed by the USDOC for its Preliminary Determination that the NMDC constituted 
a "public body" included  that: (a) 98.38% of the NMDC was owned by the GOI; (b) the GOI appoints, 
or has approval power over, a majority of the board of directors; (c) the GOI owns  all the mineral 
resources on behalf of the Indian public and has the final approval of the granting of mining leases 
for iron ore, which meant that "it is a function of the government of India to arrange for the 
exploitation of public assets, in this case  iron ore"; (d) the NMDC's  website indicated that it was 
established specifically by the GOI to perform part of that governmental function; (e) the 
NMDC's  website also stated that it was under the "administrative control" of the Ministry of Steel 
and the GOI; and (f) a Ministry of Steel official described the NMDC as a "strategic company which 
was monitored and reviewed by the government because it provided a specific service to the Indian 
public".83 The USDOC considered that the NMDC's  Board of Directors ac ts on the "GOI's  behalf in 
the day -to-day operations of the NMDC", and that "in the legal order of India, the NMDC performs 
a government function".84 
7.35.   In respect of the USDOC's  discussion of the evidence regarding the NMDC's  Miniratna status 
in the Prelimina ry Determination, it is useful to extract the full passage:  
 
evidence that was ignored, or there may be significant mistakes in arriving at factual conclusions. As 
mentioned, our evaluation and conclusion on India's  specific allegations of error is set out in other sections.  
80 Preliminary Determination, (Exhibit IND -55), p. 1. 
81 Preliminary Determination, (Exhibit IND -55), p. 5. 
82 Preliminary Determination, (Exhibit IND -55), p. 7. 
83 Preliminary Determination, (Exhibit IND -55), p p. 5-7. 
84 Preliminary Determination, (Exhibit IND -55), p. 6. 
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  The website further states that NMDC was accorded the status of a "Public Sector 
Company by the GOI [Miniratna]  in 'A'  category in its categorisation of Public 
Enterprises."  No further evidence on  the record defines the [Miniratna]  categorization, 
nor does any further evidence refer to the GOI's  "Ratna" designations for companies. 
The evidence on the record shows that the GOI treated the NMDC as a public sector 
company, and was significantly involv ed in its day -to-day operations, as explained 
further below. This constitutes further evidence that the GOI treated the NMDC as a 
public entity.85 
7.36.   We note that the parties contest how to understand the USDOC's  treatment of Miniratna 
status, and we also note  that India contests the veracity and significance of the evidence cited in 
paragraph 7.34 particularly when viewed against other evidence. Without prejudice to our evaluation 
of India's  specific claims  below , we observe that the evidence cited by the USDOC reflects the type 
and nature of evidence that can be relevant to demonstrating that an entity is a "public body", as 
elaborated  above  in section 7.2.2. This includes, for instance, evidence that an entity is performing 
a function that is governmental in the legal order of the investigat ed Member, and evidence that the 
government is meaningfully controlling the entity through significant involvement in its day -to-day 
operations.  
7.2.3.2   The GOI's  case brief in response  
7.37.   The GOI submitted a case brief dated 28 March 2016 that responded to the 
USDOC 's Preliminary Determination.86 This case brief contained "new factual information" according 
to the USDOC, including in relation to whether the NMDC constituted a "public body".87 The USDOC 
rejected the GOI's  case brief because it contained this "new factua l information".88 The GOI 
resubmitted a case brief dated 31 March 2016 which omitted that information.89 This procedural 
history is relevant because it relates to whether the "new factual information" was properly on the 
record of investigation, and therefor e whether – and to what extent – this information may be 
considered by the Panel. For present purposes, we use the case brief dated 31 March 2016 as our 
primary point of reference, without prejudice to our discussion below on the status of the "new 
factual  information".  
7.38.   In response to the Preliminary Determination, the GOI submitted that the USDOC had "not 
engaged in any analysis to explain how and why the NMDC 'possess[es], exercise[s] or [sic] [is] 
vested with government authority'"90, and thus failed to s atisfy the requisite legal standard.91 In 
terms of the evidence relied on by the USDOC, the GOI submitted that the USDOC "has come to the 
conclusion that the GOI was involved in the 'day -to-day operations'  of NMDC based on the 
GOI's  shareholding, the power to appoint and nominate the board of directors, and the reference on 
the NMDC's  website indicating that the NMDC is under 'administrative control'  of the GOI", and that 
these were mere "formal indicia of control" and insufficient for a "public body" determ ination.92  
7.39.   The GOI also submitted that the evidence "actually supports the conclusion that 8 of the 
12 directors, i.e. a majority, are not government appointees and have no allegiance to the GOI 
inasmuch as their salaries are from the profits of NMDC" as o pposed to the GOI.93 This was based 
on the evidence that four directors were appointed by the Public Enterprise Selection Board (an 
independent body within the GOI's  Department of Public Enterprises), and another four directors 
were outside part -time direct ors whose functions were as experts.  
7.40.   Further, the GOI submitted that other evidence indicated that eight "independent 
non-executive Directors [are] required to comply with the corporate governance norms of the 
 
85 Preliminary Determination, (Exhibit IND -55), p. 6. (fns omitted)  
86 Rejected case brief, (Exhibit IND -56), p.  1. 
87 Final Determination, (Exhibit IND -60), p.  2. 
88 Final Determination, (Exhibit IND -60), p.  2. 
89 Case brief, (Exhibit IND -57), p. 1. 
90 Case brie f, (Exhibit IND -57), pp. 12 and 15.  (emphasis omitted)  
91 Case brief, (Exhibit IND -57), pp. 12 and 15.  
92 Case brief, (Exhibit IND -57), pp. 15-16. (emphasis omitted; fns omitted)  
93 Case brief, (Exhibit IND -57), p. 18. 
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  national stock markets regulator".94 This meant  that those directors "were independent of the GOI", 
and that the "GOI cannot be said to have had a majority in, or control over, NMDC's  board".95 The 
GOI also argued that the evidence that the NMDC conducted iron ore price negotiations based on 
commercial principles and without interference from the Ministry of Steel rebutted the 
USDOC's  conclusion that the GOI was involved in the day -to-day operations of the NMDC.96 In 
particul ar, the GOI pointed to evidence that  the NMDC Chairman and a subset of Directors were 
directly involved in price negotiations and took into account factors such as international price 
increases, net sales realization, and a comparison with the landed cost of comparable imports of iron 
ore.97 
7.41.   In respect of Miniratna status, the GOI rejected the USDOC's  finding that there was no 
evidence on record as to its meaning and scope98, and instead quoted its supplemental questionnaire 
response in the 2004 administrativ e review : 
How is the government involved in the daily operations of NMDC?  
… It is a [Miniratna]  Category I Company, which gives it, enhanced autonomy with 
regard to investment decisions and personnel matters ...  [.]99 
7.42.   On the basis of this quotation, the GO I submitted that "the fact that NMDC has 
[Miniratna ] status has been placed on record and the GOI has asserted that as a result, NMDC has 
'enhanced autonomy'".100 The Panel observes at this juncture that the quotation relied upon by the 
GOI suggests that the  NMDC's  "enhanced autonomy" is not plenary. Rather, it is confined "to 
investment decisions and personnel matters". The picture of the NMDC's  autonomy being confined 
is augmented by another passage in the GOI's  case brief that quotes the GOI's  supplemental  
questionnaire response in the 2004 administrative review , namely that:  
NMDC is operating in a commercial, market driven de -regulated environment and 
conducts its operations and businesses on commercial principles. It enjoys freedom in 
its day -to-day opera tions. Except for certain personnel related matters and investment 
decisions over specified limits, it takes its own decisions with the approval of its Board. 
All commercial matters are dealt with by the company on its own.101 
Although this passage asserts t hat the NMDC enjoyed "freedom in its day -to-day operations", it 
explains that this freedom was curtailed "for certain personnel related matters and investment 
decisions over specified limits". This accords to some extent with the GOI's  explanation that the  
"enhanced autonomy" accorded by Miniratna is limited to only certain areas (namely " personnel 
related matters and investment decisions ").102  
7.43.   We also observe that the above extract quoted by the GOI in its case brief is followed 
subsequently in the GOI's  supplemental questionnaire response in the 2004 administrative review  
with the additional explanation that:  
As stated above the government's  shareholding in NMDC is over 98% but the ownership 
of the mines vests with the company. The Government of India is in volved in setting 
broad guidelines for the administrative functioning of the companies in the public sector 
like NMDC. Investment decisions, over certain specified limits, also require government 
approval. Beyond this, these companies have full operational , commercial and 
 
94 Case brief, (Exhibit IND -57), p. 18 (quoting GOI's supplemental questionnaire response, 2004 
administrative review,  (Exhibit IND-13), p.  4). 
95 Case brief, (Exhibit IND -57), p. 19. 
96 Case brief, (Exhibit IND -57), pp. 19-20. 
97 Case brief, (Exhibit IND -57), pp. 19-20. 
98 Case brief, (Exhibit IND -57), p. 15. 
99 Case brief, (Exhibit IND -57), p. 20 (quoting GOI's supplemental questionnaire response, 2004 
administrative review,  (Exhibit IND-13), p.  4). 
100 Case brief, (Exhibit IND -57), p. 21. (emphasis omitted)  
101 Case brief, (Exhibit IND -57), p. 19 (quoting GOI's supplemental questionnaire response, 2004 
administrative review,  (Exhibit IND-13), p.  4). 
102 Case brief, (Exhibit IND -57), p. 19 (quoting GOI 's supplemental questionnaire response, 2004 
administrative revi ew, (Exhibit IND -13), p. 4).  
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  functional autonomy. Besides such companies are required to enter into annual 
memorandums of understanding with the government wherein annual performance 
parameters and targets are agreed to. The government monitors the performance of 
these companies, during the year, against these parameters and targets.103  
This explanation clarifies further what is meant by the NMDC's  "freedom in its day -to-day operations" 
and its "autonomy". In particular, the NMDC operates autonomously only within parame ters that 
have been set by the GOI, and which are monitored by the GOI for compliance.104 Further, there are 
areas where the NMDC has no autonomy, namely "[i]nvestment decisions, over certain specified 
limits", which "require government approval". These appa rent limitations on the NMDC's  autonomy 
are an important aspect of the evidence on this point, to which we will return.  
7.44.   In terms of the legal implications of Miniratna status, the GOI submitted in its case brief that 
"since the [Miniratna] status of NMDC i s not a fact in dispute, this forms an integral part of the 
relationship between the GOI and NMDC and this is governmental policy that ensures that companies 
like NMDC operate as independent corporate entities, on commercial principles", which in turn rebu ts 
the USDOC's  conclusion that the GOI meaningfully controlled the NMDC.105 For the GOI, if the 
USDOC did not consider there to be sufficient record evidence to substantiate this implication of 
Miniratna status, then the USDOC was "under an obligation to hav e sought out the required 
clarifications or information to properly investigate this aspect in a reasonable and objective 
manner".106 
7.2.3.3   The USDOC's  Final Determination  
7.45.   In its Final Determination, the USDOC  responded to these submissions of the GOI and added 
a number of aspects of evidence to its determination that the NMDC constituted a public body.  
7.46.   In respect of the GOI's  contention regarding the NMDC's  price negotiations, the USDOC noted 
that "[t]he dire ctors, not NMDC staff members, hold negotiations with customers to discuss price 
and quantity", and "[t]he chairman approves negotiation and then contracts are submitted to the 
Board for ratification".107 For the USDOC, "[t]his demonstrates that the board me mbers, particularly 
the chairman, which is appointed by the GOI, are not mere observers but active and involved in the 
day-to-day operations of the NMDC on the GOI's  behalf".108 Further, in response to the 
GOI's  argument that the NMDC's  prices were set comme rcially, the USDOC pointed to evidence that: 
(a) the NMDC Chairman had recommended an export ban on high -grade iron ore (except when 
exported under long term contracts), which was in line with the GOI policy; and ( b) export 
restrictions had been applied to the NMDC. In particular, the USDOC cited page 185 of the 
Dang  Report, in which the NMDC Chairman is recorded as stating:  
NMDC is exporting iron ore only to meet its commitment under long term contract. …  
Government  should re -examine the whole issue of export of iron ore. He suggested that 
except long term contract, export of iron ore should not be allowed. …  
There is a shortage in supply of iron ore which is reflected in terms of its rising prices.109 
7.47.   We observe that other passages of the Dang Report also record views expressed by the NMDC 
on these matters, including that the "[e]xport of lump ore should be discouraged to meet the 
domestic demand", and that "[t]he raw material being natural reserves should be available  
adequately for the domestic industry and exports should not be at the cost of domestic industry".110 
 
103 GOI's supplemental questionnaire response, 2004 administrative review,  (Exhibit IND -13), p.  6. 
104 GOI's supplemental questionnaire response, 2004 administrative review, (Exhibit -13), p. 6.  
105 Case brief, (Exhibit IND -57), p. 22. 
106 Case brief, (Exhibit IND -57), pp. 21-22. 
107 Final Determination, (Exhibit IND -60), p.  20. 
108 Final Determination, (Exhibit IND -60), p.  20. 
109 Dang Report, (Exhibit USA -2) p. 185. 
110 Dang Report, (Exhibit USA -2) pp. 204 and 206. These were not cited explici tly by the USDOC. 
However, the aspects we refer to are clearly connected to the USDOC's  explanation regarding the 
NMDC  Chairman's  recommendation of export restrictions for iron ore, and are thus within the purview of the 
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  In that regard, we note that the USDOC stated that the NMDC Chairman's  recommendation to the 
Dang Report on export restrictions was "in line with government al policies".111 The USDOC did not 
attach a reference to that statement. We nonetheless observe that the record evidence from a report 
prepared by and for the GOI suggests that "it is the GOI's  intention to restrict exports of iron ore 
with Fe content higher  than 64 per cent, with a view to ensuring that the exports do not take place 
at the cost of supplies to domestic steel producers ".112 This appears to show a degree of alignment 
between the NMDC's  rationale for export restrictions and the GOI's  policy ration ale for export 
restrictions.  
7.48.   The USDOC also cited page 8 of the Verification Report in concluding that "[c]ontrary to the 
GOI's  assertion that prices are determined by the supply and demand of the market, NMDC described 
at verification that there are expo rt restrictions in place", which includes in relevant part:  
Officials [of the NMDC] explained that the Export Bulletin is a cap on what is allowed to 
be exported; however, the mine has never reached this cap. The export restriction 
begins if exports exceed  or approach 6.8 MT; the official explained that the mine only 
exports between 4 -5 MT. Other mines do not have this restriction limit. We asked why 
this mine has a restriction and the others do not. The official explained that the Bailadila 
mines are very rich in Fe content  … As a result of this high Fe content, the government 
does not want all of it to be exported [.] 
Iron ore of +64 is one of these products and thus can only be exported by a special 
trading company, the [Metals and Minerals Trading Corpora tion of India ]. … The Ministry 
of Commerce monitors the export of high grade through the MM TC … [.]113 
7.49.   The picture that emerges from this aspect of the Verification Report and the aspect of the 
Dang Report extracted earlier114 is as follows. Not only did the N MDC Chairman recommend certain 
export restrictions on high -grade iron ore to the GOI, but he also indicated that the NMDC itself only 
exported high -grade iron ore to meet the commitments under long term contracts. The 
NMDC's  rationale for exporting iron or e only to meet such commitments appears to have been that 
"exports should not be at the cost of domestic industry".115 The GOI also imposed export caps on 
the NMDC's  exports of high -grade iron ore, and for substantially the same rationale as articulated 
by the NMDC, but the NMDC never reached those GOI -mandated caps. Thus, the NMDC's  export of 
high-grade iron ore only to meet commitments under long term contracts – and its recommendation 
that the GOI adopt such a limitation – appears to reflect a stricter lim itation in practice than the 
existing GOI -mandated export caps.  
7.50.   Against this evidentiary background, and also in light of the evidence that the NMDC was 
monitored by the GOI as a "strategic company" whose "GOI-appointed directors " conducted price 
negotiati ons, the USDOC considered that "the conditions of the market are being influenced by the 
GOI's  policy considerations and actions … rather than by the activity of unfettered participants in a 
private market".116 
7.51.   The USDOC also addressed the GOI's  submissions regarding the NMDC's  Miniratna status. It 
found that "the GOI does not point to supporting record evidence that shows that this categorization 
reflects 'enhanced autonomy'  on the part of the NMDC".117 We recall at this juncture that the 
 
Panel's  review. (Appellate  Body Rep ort, EU – Fatty Alcohols  (Indonesia) , para.  5.99. See also above 
paras.  7.5-7.6). 
111 Final Determination, (Exhibit IND -60), p.  20. 
112 Hoda Report, (Exhibit USA -8), para. 7.61 (emphasis added). We note that the USDOC relied on the 
Hoda Report in other aspects of its determination (see e.g. Final Determination, (Exhibit IND -60), pp.  24-25). 
We also note that India appears to dispute the relevance of the Hoda Report to this matter. (India's  response 
to Panel question No.  19). We draw no conclusions in this background section and evaluate the 
parties'  arguments, as relevant, in subsequent sections below.  
113 Verification Report, ( Exhibit USA -3), p.  8. 
114 See above para. 7.46. 
115 As we have  observe d, the USDOC considered this to be "in line with governmental policies", and 
other record  evidence suggests this rationale mirrored the GOI's  rationale for imposing export caps. 
(Hoda Report, (Exhibit USA -8), para. 7.61). 
116 Final Determination, (Exhibit IND -60), p.  21. 
117 Final Determination, (Exhibit IND -60), p.  21. 
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  evidence cited in the  GOI's  case brief pertained to  the "enhanced autonomy with regard to 
investment decisions and personnel matters ", and not to "enhanced autonomy" generally.118 The 
USDOC also "disagree[d] that the record was deficient regarding NMDC's  [Miniratna]  status as it  
related to NMDC's  autonomy".119 
7.52.   The USDOC concluded in its Final Determination that "the record shows that 
NMDC's  management and day -to-day operations remained under the control of the GOI, and that 
NMDC provided a governmental function in the legal order of India", and therefore "the NMDC 
possesses, exercises, or is vested with governmental authority".120 
7.53.   Without prejudice to our evaluation of India's  specific claims  below , we observe that, as with 
the Preliminary Determination, the evidence cited in t he Final Determination reflects the type and 
nature of evidence that can be relevant to demonstrating a "public body" (see further section 7.2.2 
above). In particular, the evidence that the NMDC Chairman was appointed by a GOI body and took 
steps to advocate a position on exports that aligned with governmental policy and appeared to 
diverge from profit -maximising behaviour121 gives rise to a reasonable i nference that the 
government is exercising "meaningful control" over the entity through its appointee. Likewise, the 
evidence that this same Chairman supervises price negotiations with customers warrants the 
inference that the government is involved in the  day-to-day operations of the NMDC through its 
appointee, and thus that the GOI exercises "meaningful control" over the NMDC.  
7.54.   This inference is corroborated by the evidence cited by the USDOC that the NMDC perceived 
itself as being under the "administrativ e control" of the GOI, together with the evidence cited by the 
USDOC that the GOI perceived the NMDC as being a "strategic compan[y]" that provides a "specific 
service to the people". The GOI contended that the inference of "meaningful control" was rebutte d 
by the "enhanced autonomy" of the NMDC. However, by the GOI's  own description, this "autonomy" 
was limited to "investment decisions and personnel matters". Thus, the alleged "autonomy" did not 
pertain to the areas where the USDOC found evidence of govern mental involvement in the operations 
of the entity, namely the NMDC's  price negotiations and the application of export restrictions.122 
This, in turn, elucidates the USDOC's  comment that "the record was [not] deficient regarding 
NMDC's  [Miniratna]  status as it related to NMDC's  autonomy". We also recall that the GOI's  own 
questionnaire response indicated that the NMDC's  autonomy was exercised within parameters that 
were set annually, and monitored regularly, by the GOI. These aspects of the questionnaire were  
confirmed in the USDOC's  Verification Report.123 Accordingly, the record evidence on the scope and 
nature of the autonomy enjoyed by the NMDC did not necessarily warrant the inference that the GOI 
was not involved in the conduct of the NMDC.  
7.2.3.4   Conclusion  
7.55.    On the basis of the foregoing, we observe that the legal standard that the USDOC sought to 
apply for its "public body" determination was whether the NMDC was vested with governmental 
authority in India. The USDOC was guided in this regard by whether the NMDC  performed a 
governmental function and whether the GOI exercised meaningful control over the NMDC. We also 
 
118 Case brief, (Exhibit IND -57), p. 20 (quoting GOI's supplemental questionnaire response, 2004 
administrative review , (Exhibit IND-13), p. 4). (emphasis added)  
119 Final Determination, (Exhibit IND -60), p.  21. 
120 Final Determination, (Exhibit IND -60), p.  21. 
121 See below para. 7.85. Record evidence suggested that a pplying an export restraint  on one's  own iron 
ore curtailed opportunities to secure the highest price, thus potentially conflicting with profit -maximization: see 
the NMDC Chairman's  own statement, when read in light of the fact that the NMDC is a seller of iron ore, that: 
"[t]here is a shortage in supply of iron ore which is reflected in terms of its rising prices ". (Dang Report, 
(Exhibit USA-2) p. 185. See also Hoda Report, ( Exhibit  USA-8), para. 7.55). In relation to these aspects of 
evidence, we reiterate that a panel is not precluded from considering aspects of evidence that are connected to 
or corroborate an investigating authority's  explanati on, even where those aspects were not cited explicitly in 
the authority's  determination. (See above paras. 7.5-7.6.) 
122 See also Final Determination, (Exhibit IND -60), p.  16: "[t]he record further demonstrates that the 
GOI appointed directors at the NMDC not only set export prices but that the GOI, through its 
'canalization'  policy, exercises its control of the supply and demand of high grade iron ore that the NMDC sells 
in the Indian and global market. Such actions are not mere presumptions of control, but constitute an actual 
means by which the GOI  shapes the market for high grade iron ore" (cross -referenced in the "public body" 
explanation at ibid. p.  21). 
123 Verification Report, (Exhibit USA-3), pp. 9-10. 
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  observe that the evidence relied upon by the USDOC was of a nature and type that can be relevant 
to "public body" determinations. The inferences draw n by the USDOC from that evidence appear on 
their face to be reasonable and mutually reinforcing. This does not mean that the 
USDOC's  explanation was necessarily "reasoned and adequate", and thus consistent with 
Article  1.1(a)(1) of the SCM  Agreement.124 Rather, we reiterate that our observations in this section 
are intended only to provide background and context to our evaluation of India's  specific allegations 
of error and the United  States'  rebuttals , to which we now turn .  
7.2.4   Whether the USDOC erred in its f inding that the NMDC performs a governmental 
function within the legal order of India  
7.56.   India claims that the USDOC acted inconsistently with Article  1.1(a)(1) of the SCM  Agreement 
by concluding that mining is a "governmental function" in India.125 We disagree. India relies on an 
incorrect legal standard that would require the USDOC to show that mining is both : (a) classified as 
a governmental function in the legal order of India; and (b) normally classified as "governmental" 
within other WTO Member s.126 To require an investigating authority to make such a showing would 
be to apply an impossible evidentiary standard.127 Moreover, this proposed legal standard does not 
comport with the standard articulated by the Appellate  Body.128 
7.57.   India also argues that the  record evidence of a governmental function was confined only to 
the approval  of mining leases , and not to the activity  of mining iron ore.129 In our view, this is an 
overly formalistic distinction. The USDOC determined that it is a function of the GOI to ar range for 
the exploitation of public assets including iron ore130, relying principally on the evidence in the Dang 
Report that the GOI owns all mineral resources and is responsible for approving mining leases.131 
The USDOC also relied on the fact that the NMDC  was established by the GOI to mine iron ore, which 
a GOI official had described as performing a "service to the people".132 In our view, it was reasonable 
for the USDOC to conclude from this evidence that  it is a function of the GOI to arrange for the 
explo itation  of iron ore . The fact that the USDOC did not rely upon evidence that the GOI itself was 
undertaking mining is not dispositive. The grant of a right or lease to an entity to extract a good can 
be tantamount to providing that good to the entity.133 Therefore, it would be unduly narrow to 
 
124 For instance, there may be probative contradictory evidence that was ignored, or there may be 
significant mistakes in arriving at factual conclusions or interpreting and applying the legal standard. As 
mentioned, our evaluation and conclusion on India's  specific allegations of error is set out in other sections.  
125 India's first written submi ssion, para. 81; second written submission, para.  92. 
126 India's first written submission, para. 81. 
127 We note that India responded to the Panel's  question "[h] ow would an investigating authority obtain 
evidence from other non -investigated WTO Members as to  classifications of their governmental functions? " with 
the answer that " India considers that the starting point would be a detailed questionnaire issued by the 
investigating authority to all the interested parties. " (India's  response to Panel question No.  2(c)). This 
response did not demonstrate to us how an investigating authority could feasibly undertake the evaluation that 
India contends was required, as other WTO Members would not receive that questionnaire. We also note that, 
in response to the Panel' s question "[d]oes your domestic legal or administrative system provide for explicit 
designations of functions as "governmental"?", a number of third parties indicated that either their systems did 
not provide for such explicit designations, or that they d id not consider such explicit designations were 
necessary for a function to be considered "governmental". ( Canada 's third-party response to Panel 
question  No. 3, para.  6; China 's third-party response s to Panel question Nos. 3-4, paras.  8-9; 
European  Union' s third-party response to Panel question No. 3, para.  32; and Japan's  third-party response to 
Panel question No. 3, para.  8). 
128 The Appellate  Body has emphasized that the process for identifying a governmental function is 
non-prescriptive, and more specifi cally, that domestic classifications of governmental functions "may" – not 
"must" – be relevant to that process. The Appellate  Body has not defined its concept of "governmental 
functions", nor has it set out exhaustively how such a determination should be made. Instead, the 
Appellate  Body has recognized that such determinations are necessarily case -by-case. ( Appellate  Body 
Report s, US – Carbon Steel (India) , para. 4.9; US – Anti-Dumping and Countervailing Duties (China) , 
paras.  297 and 317 ). 
129 India's  first written submission, para.  81. 
130 Final Determination, (Exhibit IND -60), p.  20. 
131 Final Determination, (Exhibit IND -60), p.  20. 
132 Final Determination, (Exhibit IND -60), p p. 15-16; Preliminary Determination, (Exhibit IND -55), 
pp. 6-7 (referring  to Dang Report, (Exhibit USA -2), p. 102; and Verification Report, ( Exhibit  USA-3), p. 9). 
133 Appellate  Body Report, US – Softwood Lumber IV , para.  75; Panel Reports, Canada – Renewable 
Energy / Canada – Feed-in Tariff Program , paras.  7.136, 7.229, and 7.243. See also Appellate  Body Reports, 
Canada – Renewable Energy / Canada – Feed-in Tariff Program , paras.  5.60-5.63 and 5.75 -5.79. For the outer 
limits to this approach, see Panel Report, US – Large Civil Aircraft (2nd complaint) , paras.  7.387 and 7.394.  
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  construe the "governmental function" in this case as providing leases or rights to the good, rather 
than as encompassing the exploitation of the good. The Appellate Body has stated  that the 
determination of  "whether a p articular conduct is that of a public body must be made by evaluating 
the core features of the entity and its relationship to government in the narrow sense".134 Contrary 
to India's argument, the USDOC's determination was not based only on whether the partic ular 
conduct of mining iron ore comprised a "governmental function". Rather , the USDOC evaluated this 
conduct as part of its examination of the relationship between the NMDC and the GOI, including by 
referr ing to the fact that the GOI established an entity  (the NMDC) – in which it continue d to hold a 
98% ownership stake – for the very purpose of undertaking mining.135 Indeed, the USDOC's 
determination was not that the conduct of mining iron ore alone comprised a "governmental 
function", but was instead the " arrang[ing] of the exploitation" of iron ore, including through owning 
the resource, granting leases to the resource, and establishing the NMDC as a government -owned 
entity to exploit the resource.136  
7.58.   India also argued that the "SCM  Agreement [is] intended to apply only when entities operate 
in the public realm", whereas the NMDC was set up by the government to operate in the "private 
realm".137 For India, entities operating in the "private realm" cannot be said to be performing a 
"governmental function", sinc e "the Appellate  Body has evolved the test of 'governmental 
functions'  as a tool to determine areas that do not concern the 'public realm'".138 According to India, 
"setting -up commercial enterprises like NMDC involve the government operating in the private r ealm 
and such commercial enterprises cannot be considered to be 'public bodies'".139 We disagree. The 
SCM Agreement is directed at facilitating remedies to injury incurred by the domestic industry as a 
result of certain types of governmental interventions  in markets. This presupposes that such 
interventions are occurring in "realms" where markets are operating and other enterprises can be 
harmed. There is thus no basis for inferring a distinction between "public" and "private" realms for 
the purposes of the S CM Agreement.  
7.59.   In summary, the USDOC sought to ascertain whether the NMDC "provided a governmental 
function in the legal order of India".140 The USDOC relied on evidence regarding the GOI's  legal 
ownership of the resource in question and the legal tools depl oyed by the GOI (i.e. granting leases 
and establishing the NMDC) for the development of the resource. This provided  a sufficient 
evidentiary basis for the USDOC's  conclusion that "it is a function of the government of India to 
arrange for the exploitation of public assets, in this case iron ore" and that the "NMDC provided a 
governmental function in the legal order of India."141 India has not demonstrated that the USDOC 
acted inconsistently with Article  1.1(a)(1) by reaching this conclusion .142 
7.2.5   Whether the USDO C erred in its assessment of the Miniratna status of the NMDC in 
respect of establishing "meaningful control" by the GOI  
7.60.   India pursued two alternative grounds143 on which the USDOC acted inconsistently with 
Article  1.1(a)(1) of the SCM  Agreement in its treat ment of NMDC's  Miniratna status, and the 
GOI's  assertion that the NMDC possessed "enhanced autonomy" as an implication of that status:   
 
134 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 345.  
135 Final Determination, (Exhibit IND -60), p.  19. 
136 Final Determination, (Exhibit IND -60), pp.  19-20. 
137 India's  second written submission, para . 90. 
138 India's  second written submission, para.  90 (referring to Appellate  Body Report s, Canada – 
Renewable Energy / Canada – Feed-in Tariff Program , para. 5.61). We are not persuaded by India's  reliance on 
the Appellate  Body's  interpretation of "governme ntal agency" in Article  III:8(a)  of the GATT. This is because 
the Appellate  Body relied on a distinction between "state trading enterprises" in Article  XVII of GATT vis-à-vis 
"governmental agencies" in Article  III:8(a) of GATT, but India has not pointed to any such distinction or 
equivalent context in the SCM  Agreement. (See further Appellate Body Report, US – Carbon Steel (India) , 
para. 4.26; United  States'  second written sub mission, para.  92). 
139 India's  second written submission, para.  90. 
140 Final Determination, (Exhibit IND -60), p.  21. 
141 Final Determination, (Exhibit IND -60), pp.  20-21. 
142 India's first written submission, para. 81; second written submission, para.  92. 
143 India's  response to Panel question No.  6. 
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  a. the USDOC  erred by failing to accord "due significance" to the existing record evidence 
regarding the implications of Miniratna status144; and  
b. the USDOC erred by failing to seek further evidence and clarifications regarding the 
implications of Miniratna status, and likewise by failing to accept the voluntarily -submitted 
evidence on that point.145  
7.61.   India argued that the Appellate  Body "pointed to the failure of the USDOC in not evaluating 
the implication of NMDC's  [Miniratna ] … status", and that the USDOC was therefore "forced to 
consider this factor by the Appellate  Body" as part of the reinvestigation.146 According to India, it 
was therefore insufficient for the USDOC to decline to consider the legal implications of Miniratna 
status on the grounds of insufficient record evidence. Either the USDOC should have accounted for 
the "enhanced autonomy" flowing from Miniratna status in its evaluation, or, if the USDOC doubted 
the assertion of "enhanced autonomy", it should have sought and accepted further evidence.147 
7.62.   The United  States responds that the Appellate  Body reports on which India relies to infer a 
"duty to seek or accept evidence" are unrelated to Article  1.1(a)(1) of the SCM  Agreement, nor does 
the text of that provision impose such a duty.148 Further, the DSB  ruling149 in the present dispute 
did not call for additional evidence to be sought. Thus, for the United  States, the USDOC was justified 
in limiting its evaluation of Miniratna status to the existing record evidence. For the United  States, 
this evidence suggested that t he conferral of Miniratna status did not displace an inference of 
meaningful control. Instead, the United  States contends that the evidence of Miniratna status 
corroborated other evidence of the GOI's involvement in the NMDC's  operations.150 
7.63.   Our analysis of the parties'  arguments proceeds on the basis of the existing record evidence, 
and not the "new factual information" that the GOI submitted as part of its rejected case brief (see 
above para graph  7.37). We address the proper role and significance of this "new factual information" 
later in our analysis.  
7.64.   An initial matter where the parties disagree concerns how the U SDOC used the evidence of 
Miniratna status in its determination. India contends that the USDOC simply disregarded the 
evidence of Miniratna status.151 By contrast, the United  States considers that the USDOC found that 
the existing record evidence regarding M iniratna status demonstrated sufficiently that Miniratna 
status did not accord the NMDC with a generali zed "enhanced autonomy".152 Rather, for the 
United  States, the evidence of Miniratna status supported the USDOC's  determination that the NMDC 
was a "public  body".153  
7.65.   We agree with the United  States'  reading of the USDOC's  determination. We accept that the 
USDOC may have simply disregarded evidence of the legal implications of Miniratna status in the 
Preliminary  Determination.154 However, the USDOC did not simpl y disregard this evidence in the 
Final Determination. Rather, the USDOC stated in the Final Determination that it "disagrees that the 
record was deficient regarding NMDC's  [Miniratna]  status as it related to NMDC's  autonomy".155 This 
indicates to us that the USDOC assessed the record evidence concerning the NMDC's  autonomy, 
including the evidence to which the GOI had referred in its case brief, as part of its Final 
 
144 India's  second written submission, paras.  87 and 229 -230. 
145 India's  first written submission, paras.  73-74. 
146 India's first written submission,  paras.  71 and 73.  
147 India's first written submission,  para. 73. 
148 United States'  first written submission, paras.  188-189; second written submission, para.  96 and 
fn 158. 
149 For the avoidance of doubt, we use the term "DSB  ruling" in this report to refer to the 
recommendations or rulings of the DSB arising from the DSB's  adoption of panel and Appellate  Body reports 
(see Article  21 of the DSU).  
150 United  States'  first written submission, paras.  179 and 190; responses to Panel question Nos.  7-8. 
151 India's  response to Panel question No.  8. 
152 United  States'  response to Panel question No.  8. 
153 United  States'  response to Panel question No.  8. 
154 Preliminary Determination, (Exhibit IND -55), p. 6: "[t]he website further states that NMDC was 
accorded the status of a 'Public Sector Company by the GOI [Miniratna]  in 'A' category  in its categorisation of 
Public Enterprises.'  No further evidence on the record  defines the [Miniratna]  categorization, nor does any 
further evidence refer to the GOI's  'Ratna'  designations for companies." (fn omitted; emphasis added).  
155 Final Determinati on, (Exhibit IND -60), p.  21. 
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  Determination, and concluded that the record was not deficient on  that point.156 The USDOC also 
stated  that "the GOI does not point to supporting record evidence that shows that this categorization 
reflects 'enhanced autonomy'  on the part of the NMDC".157 When viewed against the evidence to 
which the GOI had referred in its  case brief, this statement  does not suggest that the USDOC 
disregarded the alleged "enhanced autonomy" conferred by Miniratna status. Rather, this conclusion 
is indicative of the USDOC having reviewed the record evidence and having found it showed that th e 
NMDC's  autonomy was confined in certain ways, and thus did not possess a generali zed "enhanced 
autonomy". We also agree with the United  States'  understanding that the USDOC used Miniratna 
status as corroborating evidence for its "public body" determinati on. In particular, the USDOC 
explained in its Preliminary Determination that this status showed "that the GOI treated the NMDC 
as a public sector company" and that " [t]his constitutes further evidence that the GOI treated the 
NMDC as a public entity".158 On the basis of this understanding of the USDOC's determination, we 
now evaluate India's two alternative grounds.  
7.2.5.1   Whether the USDOC accorded "due significance" to record evidence on Miniratna 
status and its associated autonomy  
7.66.   We turn now to India's  first gro und, namely that the USDOC failed to accord "due significance" 
to the existing record evidence demonstrating that "enhanced autonomy" flowed from Miniratna 
status. In terms of the "significance" that the USDOC should have accorded to Miniratna status, 
India argues that this "evidence proves that Government of India did not in fact exercise meaningful 
control over the NMDC as an entity and over its conduct  and that NMDC was an autonomous 
entity".159 As we have just recounted, the USDOC did not use Miniratna st atus in that way, but 
instead made two other findings. First, the USDOC found that the record evidence did not 
substantiate the "enhanced autonomy" that India now claims to have been an implication of 
Miniratna status. Second, the "significance" actually a scribed by the USDOC to Miniratna status was 
that it corroborated its "public body" determination because it "showed that the GOI treated the 
NMDC as a public sector company".160 Against that background, the question before us is whether 
the USDOC provided r easoned and adequate explanations for those two findings, or instead, whether 
the USDOC was required to treat Miniratna status as rebutting "meaningful control", as contended 
by India.  
7.67.   In respect of the USDOC's  first finding, we consider that the USDOC had  a sufficient 
evidentiary basis for concluding that "the GOI does not point to supporting record evidence that 
shows that this categorization reflects 'enhanced autonomy'  on the part of the NMDC".161 The 
existing record evidence – including that which the GO I had relied upon in its case brief – showed 
that the "autonomy" conferred by Miniratna status was : (a) confined to certain investment and 
personnel matters162; and (b) periodically delimited by the GOI through "annual performance 
parameters and targets".163 Further, the spheres in which the record evidence indicated that the 
NMDC operated autonomously due to Miniratna status – namely, "investment and personnel" 
matters164 – are different to the spheres where the USDOC found evidence of "meaningful control" 
by th e GOI – namely, price negotiations and export restrictions.165 Thus, the fact that the NMDC 
may have accrued a degree of autonomy in certain areas through Miniratna status – namely 
"investment and personnel" matters – does not clearly rebut the inference tha t the GOI exercised 
"meaningful control" over the NMDC in other areas, contrary to India's  contention. Further, any such 
autonomy subsisted only within parameters that had already been set through annual memoranda 
with the GOI.166 In that regard, we affirm o ur earlier observation that the record evidence on the 
 
156 See above section 7.2.3 which  sets out the evidentiary background.  
157 Final Determination, (Exhibit IND -60), p.  21. 
158 Preliminary Determination, (Exhibit IND -55), p. 6. 
159 India's  response to Panel question No.  5. (emphasis original)  
160 Preliminary Determination, (Exhibit IND -55), p. 6. 
161 Final Determination, (Exhibit IND -60), p.  21. 
162 GOI's supplemental questionnaire response, 2004 administrative review, (Exhibit IND-13), p.  4. 
163 GOI's supplemental questionnaire response, 2004 administrative review, (Exhibit IND-13), p.  6. 
164 GOI's  supplemental questionnaire response, 2004 administrative revie w, (Exhibit IND-13), pp.  4 and 6.  
165 Final Determination, (Exhibit IND -60), pp.  16 and 20 -21. 
166 GOI's supplemental questionnaire response, 2004 administrative review,  (Exhibit IND-13), p.  6. See 
also Verification Report, ( Exhibit USA -3), p.  9: "[t]he offici al from the Ministry of Steel, further noted that 
because the [ Metals and Minerals Trading Corporation of India ] and NMDC provide a specific service to the 
people, they are monitored and reviewed by the government, as they are viewed as strategic companies ". 
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  scope and nature of the autonomy enjoyed by the NMDC does not warrant an inference that the GOI 
was not involved in the conduct of the NMDC.167 
7.68.   In respect of the USDOC's  second finding, we consider that the USDOC had a sufficient 
evidentiary basis for concluding that Miniratna status " constitutes further evidence that the GOI 
treated the NMDC as a public entity".168 We note that this finding did not form the core of the 
USDOC's  "public body" determination.169 It was, at most, peripheral corroborating evidence. 
Nonetheless, the fact that the NMDC "was accorded the status of a 'Public Sector Company  by the 
GOI [Miniratna]  in 'A'  category in its categorisation of Public Enterprises' "170 corroborates the 
evidence cited by the USDOC that the GOI viewed the NMDC as a public entity that "provides a 
specific service to the people".171 In view of that role, a GOI official had described the NMDC as a 
"strategic compan[y]". 172 This, in turn, suppor ted other evidence regarding the importance that the 
GOI placed on the NMDC, such as that the GOI set annual parameters and targets for the NMDC 
which were regularly monitored.173 Further, we do not consider it incongruous for the USDOC to 
have found, on the  one hand, that the NMDC was subject to "meaningful control" by the GOI in 
certain ways, while also finding, on the other hand, that the designation as a Miniratna company 
(with its attendant degree of autonomy and apparent parliamentary/governmental super vision174) 
corroborated a finding of "public body". This is because the record evidence suggests that, in the 
factual circumstances of the present case, the exercise of "meaningful control" and the grant of a 
degree of autonomy through Miniratna status could  plausibly coexist.175 
7.69.   We therefore conclude that India has not demonstrated that the USDOC failed to give "due 
significance" to Miniratna status, nor that the USDOC failed to provide reasoned and adequate 
explanations for its findings on Miniratna status an d the autonomy that it allegedly conferred.176 
7.2.5.2   Whether the USDOC erred by failing to seek or accept additional evidence on the 
legal implications of Miniratna status  
7.70.   We turn now to India's  alternative ground for challenging the USDOC's  treatment of Miniratna  
status and the GOI's  assertion that the NMDC possessed "enhanced autonomy" through that status, 
namely that the USDOC erred by failing to seek further evidence and clarifications regarding the 
implications of Miniratna status, and likewise by failing to a ccept the voluntarily -submitted evidence 
on that point.177 
7.71.   India's  alternative argument is premised on its understanding that the USDOC declined to 
take into account the assertion that Miniratna status conferred "enhanced autonomy" on the basis 
that the reco rd evidence from 2004 -2007 did not contain sufficient information substantiating that 
assertion.178 By failing to seek such information and rejecting information submitted voluntarily, 
India claims that the USDOC violated Article  1.1(a)(1) of the SCM  Agreeme nt.179 
7.72.   We disagree with the premise of India's  argument concerning the basis on which the USDOC 
rejected the allegation of "enhanced autonomy" conferred by Miniratna status. As we have explained 
 
167 See above para. 7.54. 
168 Preliminary Determination, (Exhibit IND -55), p. 6. 
169 Preliminary Determination, (Exhibit IND -55), p p. 5-7; Final Determination, (Exhibit IND -60), pp.  16 
and 19 -21. Evidence of meaningful control by the GOI over the NMDC was emphasized by the USDOC.  
170 Preliminary Determination, (Exhibit IND -55), p. 6. 
171 Verification Report, ( Exhibit USA -3), p.  9. 
172 Verification Report, ( Exhibit USA -3), p.  9. 
173 GOI's supplemental questionnaire response, 2004 administrative review,  (Exhibit IND-13), p.  6; 
Verification Report, ( Exhibit USA -3), p.  9. 
174 GOI's supplemental questionnaire response, 2004 administrative revie w, (Exhibit IND-13), pp.  6-7; 
Verification Report, ( Exhibit USA -3), p.  9. 
175 As we have explained earlier, the spheres where the USDOC found evidence of meaningful control 
over the NMDC were different to the spheres in which the evidence suggested the NMDC was granted 
autonomy through Miniratna status. Further, the evidence suggests that this "autonomy" operated only within 
parameters and targets set in annual memoranda with the GOI.  
176 We recall that this conclusion is based on the existing record evidence a nd does not take into account 
the "new factual information" – we will return to this below in section 7.2.5.3 . 
177 India's  first written submission, paras.  73-74. 
178 India's first written submission, para.  71. 
179 India's  first written submission, paras.  73-74; second written submission, para.  86. 
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  earlier180, the USDOC  did not reject the assertion of "enhanced a utonomy" from Miniratna status 
due to a paucity of evidence. Rather, when read against the broader evidentiary background and 
the submissions made by the GOI in its case brief, it is apparent that the USDOC considered there 
to be sufficient record evidence  concerning Miniratna status which contradicted the assertion of a 
generali zed "enhanced autonomy", and which instead pointed to a confined autonomy that did not 
rebut the inference of "meaningful control" by the GOI. As we have explained earlier, the USDO C 
had a sufficient evidentiary basis for adopting this position.181 
7.73.   We also disagree with India's  contention that Article  1.1(a)(1) of the SCM  Agreement embeds 
a "duty"/"obligation" to both seek and accept evidence.182 We acknowledged earlier that, if an 
investigating authority does not possess sufficient evidence on the record to reach a determination, 
it may need to seek or accept additional evidence in order to be capable of providing a "reasoned 
and adequate" explanation that satisfies the requirements of  a substantive obligation.183 However, 
it does not follow that there is a standalone obligation in Article  1.1(a)(1) to seek or accept evidence 
separate from the basic requirement to provide a "reasoned and adequate" explanation. In view of 
our conclusion at paragraph 7.69 we likewise conclude that India has not demonstrated that the 
USDOC needed to seek and accept additional evidence on the legal implications of Miniratna status 
in order to be capable of providing a "reasoned and adequate" explanation for its "public body " 
determination.  
7.74.   India additionally argued that the USDOC was required to seek and accept evidence on 
Miniratna status (and its legal implications) because the USDOC was "forced to consider this factor 
by the Appellate  Body" in the original proceedings, bu t had declined to do so in the reinvestigation 
due to insufficient record evidence on this factor.184 Again, we disagree with the premise that the 
USDOC dismissed the relevance of Miniratna status due to a paucity of record evidence. We also 
disagree that th e relevant DSB  ruling "forced [the USDOC] to consider this factor", including by 
seeking and accepting additional evidence. The Appellate  Body did not suggest that Miniratna status 
was necessarily relevant or dispositive (nor more probative than other elem ents of evidence), but 
rather, that the failure to discuss  such evidence reflected the application of an incorrect legal 
standard by the USDOC.185 Accordingly, the DSB  ruling required the USDOC to provide an 
explanation that reflects the application of the correct  legal standard, which would include a 
discussion of the kinds of evidence relevant to that legal standard, such as Miniratna status and its 
legal implications.186 Beyond that, the DSB  ruling did not prescribe explicitly that additional evidence 
would be required for the USDOC to apply the correct legal standard, nor that there was anything 
especially probative about the evidence of Miniratna status – other than that it was pertinent to 
questions of the relationship between the GOI and NMDC, which was t he correct legal standard to 
be applied.187 As we have explained above188, the existing record evidence provided the USDOC with 
a sufficient evidentiary basis for considering that the record was not deficient regarding Miniratna 
status. The NMDC was not endowe d with a generali zed "enhanced autonomy", and any autonomy 
exercised by the NMDC was confined in such a way that it did not rebut other evidence indicating 
"meaningful control" of the NMDC by the GOI.  
7.2.5.3   Whether the "new factual information" can be taken into  account by the Panel  
7.75.   Finally, we address the matter of the "new factual information" contained in the GOI's  rejected 
case brief to the extent it pertains to India's  claim under Article  1.1(a)(1) of the SCM  Agreement. 
According to the United  States, the "n ew factual information" was rejected because it was considered 
 
180 See above para. 7.65. 
181 See above paras. 7.41-7.43, 7.54, and 7.67. 
182 India's  first written submission, paras.  73-74 (quoting Appellate  Body Report, US – Anti-Dumping 
and Co untervailing Duties (China) , paras.  344 and 346). 
183 See above para. 7.26. 
184 India's  first written submission, para.  198. 
185 Appellate  Body Report, US – Carbon Steel ( India) , paras.  4.52 and 4.54.  
186 Appellate  Body Report, US – Carbon Steel (India) , paras.  4.43, 4.52, and 4.54 -4.55. 
187 The overall error by USDOC was a failure to provide a reasoned and adequate explanation for its 
finding that the NMDC is a public body within the meaning of Article  1.1(a)(1) of the SCM  Agreement  
(Appellate  Body Report,  US – Carbon Steel (India) , para. 4.55) which flowed from its failure to app ly the 
correct legal standard (ibid. para.  4.52)). See also ibid. paras.  4.37, 4.52, and 4.54.  
188 See above para. 7.67. 
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  untimely.189 In turn, the submission of this information was considered untimely because "[t]he 
information contained in the GOI's  case brief's  exhibits and arguments were not placed on the recor d 
of the administrative reviews that cover these [Section  129] proceedings."190 In response to 
questions from the Panel, the United  States explained that:  
[T]he GOI's  rejected case brief was kept on the record, "solely for the purposes of 
establishing and documenting the basis for rejecting the document." However, the 
arguments and exhibits contained within the document were not eligible for 
consideration because the USDOC's  regulations prohibit the agency from using rejected 
information. Therefore, the content of the rejected case brief was not information on 
the record.191 
7.76.   Although the "new factual information" was technically on the record, the key point is that, 
accor ding to the United  States, the USDOC was legally precluded from having regard to this 
information in its investigation. The oft -used formulation of a panel's  standard of review under the 
SCM Agreement is that  "a panel must examine whether, in the light of the evidence on the record , 
the conclusions reached by the investigating authority are reasoned and adequate".192 The "new 
factual information" cannot be said to be "on the record" for this purpose. This is because the 
conclusions of the USDOC were not reach ed in light of that information, since the USDOC was legally 
precluded from considering that information.  
7.77.   India contended that the Panel could permissibly take the "new factual information" into 
account.193 For India, "the evidence was already on record and within the knowledge of the 
United  States".194 India explained that the corresponding exhibits had been submitted in the original 
panel proceedings, and also that some of the information could be found in weblinks that had been 
provided in the underlying inv estigations, while other aspects of the information pertained to 
concepts, terms, or evidence that the USDOC had itself referenced in its own documents and 
determinations.195 None of the reasons offered by India rebut the proposition that the "new factual 
information" was not on the record  for the purpose of the USDOC's  evaluation , and thus is not 
permissibly within the purview of this Panel's  evaluation. To find otherwise would be to invite an 
impermissible de novo  review – that is, to take into account new  evidence that was not before the 
investigating authority for the purposes of its evaluation.196 
 
189 United States'  response to Panel question No.  15. 
190 United  States'  response to Panel question No.  15. 
191 United  States'  response to Panel question No.  15. (fns omitted)  
192 See Appellate Body Report, US – Washing Machines , para. 5.258 (quoting Appellate Body Repor t, 
US ‒ Softwood Lumber VI (Article 21.5 – Canada) , para. 93). (emphasis added)  
193 India's  response to Panel question No.  16; comments on the United  States'  responses to Panel 
question Nos.  15-16. 
194 India's  comments on the United  States'  response to Panel q uestion No.  16. 
195 India's  comments on the United  States'  responses to Panel question Nos.  8 and 15 -16; second 
written submission, para.  93. 
196 In paragraphs 7.5 and 7.6, we explained two ways in which panels may permissibly consider record 
evidence that was not e xplicitly cited by an investigating authority in its determination:  
Where the complainant bases its claim on record evidence that was not cited by the authority, and 
asserts that this uncited record evidence warranted a different explanation and conclusion  to that reached by 
the authority; and  
Where evidence that was not cited by the authority corroborates the inferences, reasoning and 
conclusions reached by the investigating authority. Consideration of such uncited record evidence is 
permissible because it  does not involve any inferences, reasoning or conclusions that are different to those 
reached by the authority, and hence involves neither a de novo  consideration of the matter, nor any 
substitution of the authority's inferences, reasoning and conclusions  with different inferences, reasoning and 
conclusions.    
We distinguish the "new factual information" from these circumstances. The USDOC was not legally 
permitted to consider this evidence in arriving at its conclusions. It cannot have provided an alterna tive basis 
for the USDOC's conclusions, since the USDOC was not permitted to consider it. Likewise, this "new factual 
information" cannot now be treated by the Panel as evidence that corroborates the USDOC's inferences, 
reasoning and conclusions, since the  USDOC's inferences, reasoning and conclusions were legally precluded 
from being based on this evidence. To find otherwise would be to rely on material and draw inferences that the 
USDOC could not lawfully have done, thus necessarily substituting our own e valuation with that of the USDOC.  
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  7.2.5.4   Conclusion on Miniratna status  
7.78.   India has not demonstrated that the USDOC acted inconsistently with Article  1.1(a)(1) of the 
SCM Agreement on either of its alternative grounds relating to the USDOC's  treatment of Miniratna 
status and the GOI's  assertion that the NMDC possessed "enhanced autonomy" as an implication of 
that status. This is because the existing record evidence provide d a sufficient foundation for the 
USDOC to reject the proposition that the NMDC was endowed with a generali zed "enhanced 
autonomy". Instead, the autonomy enjoyed by the NMDC was confined in ways that meant that this 
autonomy did not rebut the inference of "meaningful control" of the NMDC by the GOI. In view of 
that conclusion, there is no basis for finding that the USDOC was required to seek or accept additional 
evidence on Miniratna status and its legal implications in order to be capable of providing a re asoned 
and adequate explanation for its "public body" determination under Article  1.1(a)(1), nor can such 
a basis be found in the relevant DSB  ruling. Finally, we find that the "new factual information" was 
not on the record of investigation for the purpos e of the USDOC's  evaluation, and thus is not within 
the purview of our evaluation in these proceedings.  
7.2.6   Whether the USDOC erred in relation to the export restraints applying to the NMDC  
7.79.   India claims that the USDOC acted inconsistently with Article  1.1(a)( 1) of the SCM  Agreement 
by concluding that the Chairman of the NMDC recommended export restrictions on iron ore in 
accordance with GOI policy, and that export restrictions influenced the market for high -grade iron 
ore.197 India argues that the export restric tions were a mandatory measure of general application, 
as opposed to a measure voluntarily undertaken by the NMDC.198 India also cautions against 
attributing, to the NMDC itself, the Chairman's  recommendation regarding export restrictions. India 
instead cont ends that "the Chairman of NMDC occupied another position in another governmental 
committee" when he made that recommendation.199 
7.80.   The United  States responds that the record evidence demonstrates that the export restrictions 
were applied only by the NMDC beca use it was the sole entity that mined the particular type of iron 
ore that was subject to those restrictions.200 In any event, the United  States contends that it is 
immaterial whether the export restrictions were limited to the NMDC. Rather, the key point wa s that 
the Chairman actively recommended such restrictions, suggesting that the "NMDC's  board members 
were not merely observers, but active participants working daily to effectuate the GOI's  policies".201 
7.81.   The relevant passage of the USDOC's  explanation is worth extracting in full:  
Further, the record shows that the chairman of NMDC, in line with governmental policies 
and as part of the Expert Group on Preferential Grants of Mining Leases, recommended 
that except for long term contracts, the export of iron ore not be allowed. Contrary to 
the GOI's  assertion that prices are determined by the supply and demand of the market, 
NMDC described at verification that there are export restrictions in place for high -grade 
iron ore with a high Fe content.  … We find that the prices from the NMDC do not 
represent prevailing market conditions in India because the conditions of the market 
are being influenced by the GOI's  policy considerations and actions, as described above, 
rather than by the activity of unf ettered participants in a private market.202 
7.82.   It is apparent from this passage that the USDOC used the evidence of the NMDC 
Chairman's  recommendation on export restrictions to infer that he was acting in line with 
governmental policies, and that the USDOC use d the application of export restrictions to rebut the 
GOI's  assertion in its case brief that the NMDC's  prices were determined commercially based on 
 
197 India's first written submission, paras.  75(b) and (c), 76, and  78. 
198 India's first written submission, para. 78; second written submission, para.  99. 
199 India's  first written submission, para.  78; second written submission, para.  101. 
200 United  States'  first written submission, para.  183. 
201 United  States'  first written submission, paras.  174 and 184.  
202 Final Determination, (Exhibit IND -60), pp.  20-21. (fns omitted)  
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  supply and demand.203 India argues that both of these inferences were unwarranted204, and we 
address each in tu rn. 
7.83.   The NMDC Chairman clearly recommended to the Expert Group that the export of iron ore not 
be allowed except under long term contracts: " [g]overnment should re -examine the whole issue of 
export of iron ore . He suggested that  except long term contract, e xport of iron ore should not be 
allowed".205 This aspect of the USDOC's  explanation is taken almost verbatim from the Dang Report 
(the Expert Group's  report), and we do not understand the parties to dispute the fact that this 
recommendation was made. However , India seems to suggest that the Chairman was not 
participating in the Expert Group in his capacity as the NMDC Chair or reflecting NMDC positions.206 
This suggestion cannot be sustained. The evidence clearly demonstrates otherwise.207 Further, the 
NMDC itsel f made substantially the same submission to the Expert Group, as recorded in the Dang 
Report: "[e]xport of lump ore should be discouraged to meet the domestic demand".208 
7.84.   The evidence also shows that the NMDC Chairman's  recommendation was, as described by 
the USDOC, "in line with governmental policies". The GOI applied a policy of restricting exports of 
high-grade iron ore, and likewise, the NMDC Chairman was recommending restricting exports of iron 
ore.209 Further, as we have observed earlier210, the rationale a rticulated by the NMDC Chairman (and 
the NMDC itself) for restricting iron ore aligns with the record evidence on the policy rationale of the 
GOI for restricting iron ore, namely to ensure that exports do not take place at the cost of supplies 
to domestic steel producers.211 Thus, we consider that the USDOC had  a sufficient evidentiary basis 
for using the NMDC Chairman's  recommendation on export restrictions to infer that he was acting 
in line with governmental policies in that regard.  
7.85.   We note that India cont ended that the "NMDC presented arguments to the committee which 
were most commercially advantageous to NMDC like any other private enterprise would do".212 
However, India does not point to any record evidence that export restrictions on the NMDC's  own 
produc t would be commercially advantageous to the NMDC. Rather, the NMDC Chairman's  own 
statement to the Expert Group was that "[t]here is a shortage in supply of iron ore which is reflected 
in term of its rising prices ".213 Export restrictions would have the inte nded effect of arresting that 
shortage, and the consequent rise in prices of iron ore.214 The NMDC extracts and sells iron ore. We 
therefore reject India's  contention that the NMDC Chairman's  recommendation of export restrictions 
 
203 See further above section 7.2.3.3 . 
204 India's first written submission, paras.  75(b) and (c), 76, and 78.  
205 Dang Report, (Exhibit USA -2) p. 185. 
206 India's  first written submission, para 78;  second written submission, para.  101. Not only does India 
characterize the NMDC Chairman's  involvement as " occup [ying]  another position in another  governmental 
committee ", but further, despite the NMDC itself mak ing submissions to the Dang Report, India states that the 
Chairman's  involvement " does not necessarily imply that the Board of Directors of NMDC had made any 
decisions on the same " and "[n] o such positive evidence exists on record ". 
207 The Dang Report descr ibes its "Composition" as including " CMD, National Mineral Development 
Corporation Limited – Member ". (Dang Report, ( Exhibit USA-2) p. 5). The Dang Report also describes the 
NMDC Chairman's  interventions as follows : "Shri B. Ramesh Kumar Chairman, NMDC  in his presentation stated 
as under: …" ( ibid. p.  185 (emphasis added)).  The Dang Report also references the positions submitted by the 
NMDC on various  matters. (Ibid. pp.  103, 105, 194, 204, and 206). The Dang Report also refers to a: 
"POSITION PAPER ON NATI ONAL GUIDELINES ON IRON ORE MINING 12. NMDC" . (Ibid. p.  179 (upper -case 
original)).  
208 Dang Report, (Exhibit USA -2), p.  204. 
209 United  States'  response to Panel question No.  19. 
210 See above para.  7.47. 
211 For evidence on the NMDC 's rationale, se e: Dang Report, ( Exhibit USA-2), pp. 185, 204, and 206. 
For evidence on the GOI's  rationale, see: Hoda Report, (Exhibit USA -8), para. 7.61. We note that the USDOC 
relied on the Hoda Report in other aspects of its determination. (See e.g. Final Determination, (Exhibit 
IND-60), pp.  24-25). We also note that India appears to dispute the relevance of the Hoda Report to this 
matter. (India's  response to Panel question No.  19). We disagree. This evidence is clearly connected to the 
USDOC's  explanation that the recommendation was in line with GOI policy considerations, and is hence within 
our purview: see above paras. 7.5-7.6. (See also Appellate  Body Report, EU – Fatty Alcohols  (Indonesia) , 
para. 5.99; Panel Report, EU – Fatty Alcohols  (Indonesia) , para.  7.8). 
212 India's  response to Panel question No.  17. 
213 Dang Report, (Exhibit USA -2), p.  185. (emphasis added)  
214 Hoda Report, (Exhibit USA -8), para.  1.35 ( "[a] limitation on export s would also amount to restricting 
the market for Indian ores, thereby depriving the miner of the best international price for his product"), and 
para. 7.61; see also Dang Report, ( Exhibit USA-2), pp. 204 and 206.  
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  (and the NMDC's  similar reco mmendations) "merely reflect the advocacy and arguments by NMDC, 
as any other private player would ".215 Rather, the NMDC's  advocacy of export restrictions evokes 
the observation of another panel in the analogous context of Article  1.1(a)(iv) of the 
SCM Agree ment:  "[t]he fact that private parties act in a strange or not commercially reasonable 
manner can form part of the proof that someone was requiring these private parties to act in this 
abnormal way."216 
7.86.   We turn now to the USDOC's  reliance on the application of export restrictions to rebut the 
GOI's  assertion in its case brief that the NMDC's  prices were determined commercially based on 
supply and demand. India raises a number of matters before us that were not addressed explicitly  
by the USDOC in the passage from its determination that we extracted above. In particular, the 
USDOC did not address explicitly the question that India now raises as to whether the relevant 
export restrictions were " a legal mandate applied by the GOI to a ll iron ore exporters" and whether 
"the NMDC voluntarily decided to not export iron ore".217 Nor did the USDOC address the question 
that India now raises as to whether the conclusion that market conditions in India were influenced 
by the export restrictions is a "mere assertion " by the USDOC unsupported  by any evidence on 
record.218  
7.87.   Although the USDOC did not discuss these matters explicitly in its determination, it is apparent 
that they are addressed in the evidence and exhibits cited by the USDOC in its expl anation on export 
restrictions extracted above, as well as by other corroborating record evidence. Page 185 of the 
Dang Report, which was cited by the USDOC219, records the NMDC Chairman as stating that: " NMDC 
is exporting iron ore only to meet its commitmen t under long term contract ".220 India contends that 
this was simply a factual observation, rather than indicative of the NMDC itself imposing an export 
restriction.221 However, the NMDC Chairman's  statement must be read in context. It appears 
alongside a recom mendation that the GOI adopt an export restriction of an identical character to 
that reflected in the NMDC Chairman's  statement. It also appears alongside the articulation of a 
rationale for adopting such a restriction by both the NMDC Chairman and the NMD C itself .222 This 
context suggests that the NMDC was purposive in " exporting iron ore only to meet its commitment 
under long term contract ", and that it was not, for instance, a mere coincidence that the 
NMDC's  exports were " only to meet its commitment under  long term contract ".  
7.88.   The significance of this lies in the fact that, according to the exhibit cited by the USDOC, the 
volume of relevant NMDC exports under long term contracts was consistently lower than the 
GOI-mandated export caps.223 Thus, not only was the NMDC advocating that the GOI adopt an 
export restriction on its own product that was stricter than the existing GOI -mandated export caps, 
but moreover, the NMDC seems to have purposively set its exports at a level that happened to be 
below this cap (na mely, exports only to meet commitments under long term contracts). Therefore, 
whilst India invites us to consider that "it is not the case that the NMDC voluntarily decided to not 
export iron ore"224, the record evidence suggests the contrary. To this extent , we agree with the 
United  States that  "the fact that the NMDC never reached the cap does not reveal the export 
restriction to have had no effect", but rather, "the fact that the NMDC stayed within this export limit 
 
215 India's  response to Panel question No.  19. 
216 Panel Report , EC – Countervailing Measures on DRAM Chips , para. 7.105 . 
217 India's first written submission, para. 78. 
218 India's  first written submission; para.  78; second written submission, para.  101. India seems to 
suggest that, because the GOI -mandated export caps were never reached, there was concomitantly no impact 
on market conditions or prices. (India's  second writt en submission, para.  189). Such an inference is displaced 
by the NMDC Chairman's  explanation in the Dang Report that the NMDC " is exporting iron ore only to meet its 
commitment under long term contract ". (Dang Report, ( Exhibit USA-2), p.  185).  
219 Final Dete rmination, (Exhibit IND -60), fn 73.  
220 Dang Report, (Exhibit USA -2), p.  185. 
221 India's  response to Panel question No.  19. 
222 For the NMDC  Chairman's  rationale, se e: Dang Report, ( Exhibit USA-2), pp. 185: "[t]here is a 
shortage in supply of iron ore which is reflected in term of its rising prices". For the NMDC's  rationale, see ibid. 
pp. 204 and 206: "[e]xport of lump ore should be discouraged to meet the domestic demand"; and "[t]he raw 
material being natural reserves should be available adequately for the do mestic industry and exports should 
not be at the cost of domestic industry".  
223 Final Determination, (Exhibit IND -60), fn 74 (referring to Verification Report, ( Exhibit  USA-3), p.  8). 
224 India's first written submission, para. 78. 
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  would only serve to corroborate the USDO C's finding that this export restriction was closely 
monitored and enforced by the GOI ".225 
7.89.   Accordingly, India's  contention that the GOI -mandated export caps were a measure of general 
application is not relevant. The evidence in the exhibits referred to by t he USDOC suggests that 
regardless of the GOI -mandated export caps, the NMDC itself purposively exported iron ore only to 
meet its commitments under long term contract s, which happened to be consistently lower than 
those caps. Additionally, the NMDC's  appar ent rationale for exporting iron ore only to meet its 
commitments under long term contract s aligned with the GOI's  policy rationale for its own export 
caps.226 We therefore disagree with India's  argument that "export restrictions imposed by [GOI] are 
of no r elevance to the determination of whether NMDC is a public body". Rather, we consider it 
relevant – as did the USDOC227 – that the GOI maintained a measure on the basis of a policy rationale 
which appears to have been advocated by the NMDC Chairman and which appears to have been 
emulated by the NMDC in limiting exports only to meet commitments under long term contracts. We 
also recall, in this regard, that the NMDC Chairman was appointed by a GOI body, and the NMDC 
itself was 98% owned by the GOI and described  itself as being under the "administrative control"228 
of the GOI.229 Against that evidentiary background, the USDOC had a sufficient basis for concluding 
that the " export restrictions in place for high -grade iron ore" contradicted the GOI's  assertion that 
the NMDC's  prices were set "by the supply and demand of the market", and for instead inferring 
from these export restrictions that "the conditions of the market are being influenced by the 
GOI's  policy considerations and actions".230  
7.90.   For the same reasons, we reject India's  contention that "[t]he conclusion that market 
conditions in India were influenced by the export restrictions is … a mere assertion by USDOC 
unsupported any evidence on record".231 The aforementioned record evidence sup ports the inference 
that the NMDC was purposive in limiting its iron ore exports, with the underlying rationale reflected 
in the following statements of the NMDC Chairman and the NMDC as recorded in the Dang Report:  
NMDC is exporting iron ore only to meet its commitment under long term contract. …  
Government should re -examine the whole issue of export of iron ore. He suggested that 
except long term contract, export of iron ore should not be allowed. …  
There is a shortage in supply of iron ore which is refle cted in terms of its rising prices.  
Export of lump ore should be discouraged to meet the domestic demand. …  
The raw material being natural reserves should be available adequately for the domestic 
industry and exports should not be at the cost of domestic i ndustry.232  
7.91.   It is apparent from these extracts that the NMDC Chairman (and the NMDC as an entity) 
articulated that the very purpose of limiting iron ore was to affect market conditions, particularly as 
 
225 United  States'  second wri tten submission, para.  173. 
226 For evidence on the NMDC 's rationale, se e: Dang Report, ( Exhibit USA-2) pp. 185, 204, and 206. For 
evidence on the GOI's  rationale, see: Hoda Report, (Exhibit USA -8), para. 7.61. See also para. 7.47. 
227 Final Determination, (Exhibit IND -60), pp.  20-21; United  States'  first written submission, paras.  174 
and 184.  
228 We find, as a matter of fact, that it was reasonable for the USDOC to infer that this term refers to 
actual and executive control in GOI/NMDC parlance. See, e.g. the use of the term "administratively controlled" 
on p. 7 of GOI's  questionnaire response, 20 06 administrative review, ( Exhibit IND -18), and "controlled" on p.  8 
of the same exhibit.  
229 Final Determination, (Exhibit IND -60), pp.  19-21. 
230 The evidentiary background also contradicts India 's contention that the fact of the GOI -mandated 
export caps dem onstrates that it did not exercise meaningful control over the NMDC. India suggests that such 
caps would be unnecessary if the GOI did in fact control the NMDC . (India 's second written submission, 
para. 102). India 's suggestion in this regard is contradict ed by the record evidence reviewed above from which 
it can be reasonably inferred that : (a) the NMDC purposively exported iron ore only to meet its commitments 
under long term contracts, which happened to be consistently lower than the GOI -mandated caps; a nd (b) the 
NMDC did this on the basis of a rationale that aligned with the GOI 's policy rationale for its export caps.  
231 India's  first written submission; para.  78; second written submission, para.  101. 
232 Dang Report, (Exhibit USA -2) pp. 185, 204, and 206.  
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  they related to domestic supply.  Thus, contrary to Indi a's argument, there is record evidence to 
support the USDOC's  assertion that market conditions were being influenced by GOI policy 
considerations, including through export restrictions.233 India appears to suggest that, to the extent 
that the USDOC did not i tself explicitly cite certain evidence, it is " ex post facto rationalization , and 
thus, irrelevant for the purposes of present proceedings".234 We disagree. As we have stated earlier, 
an investigating authority need not cite explicitly all the evidence that supports its conclusion on a 
given point.235 Further, we note that it was India who raised the question in the present proceedings 
concerning whether and how the NMDC was involved in export restrictions that could affect market 
conditions, and what the recor d evidence did or did not demonstrate in that regard.236  
7.92.   For the foregoing reasons, we conclude that India has not demonstrated that the USDOC 
acted inconsistently with Article  1.1(a)(1) of the SCM  Agreement by finding that the Chairman of 
the NMDC recommen ded export restrictions on iron ore in accordance with GOI policy, and that 
export restrictions influenced the market for high -grade iron ore.  
7.2.7   Whether the USDOC erred in finding that the Directors (appointed by the GOI) hold 
price negotiations for the sale  of iron ore  
7.93.   India claims that the USDOC acted inconsistently with Article  1.1(a)(1) of the SCM  Agreement 
by incorrectly finding, as a matter of fact, that the NMDC's  Directors appointed by the GOI hold price 
negotiations for the sale of iron ore.237 In par ticular, India argues that the USDOC engaged in the 
following errors in concluding that "[d]irectors (who are appointed by the GOI) hold price 
negotiations for the sale of iron ore" : (a) the USDOC found that price negotiations are carried out 
by the "Board  [of Directors]", whereas the record evidence indicates they were undertaken by a 
"Committee of Directors"; (b) at least four Directors are not appointed by the GOI and there is no 
record evidence cited by the USDOC as to the size or composition of the "Co mmittee of Directors", 
which means it is at least plausible that price negotiations were carried out by 
non-GOI-appointed/independent Directors; and (c) in any case, the USDOC did not address the 
importance of the obligation on Directors to act independent ly in accordance with "corporate 
norms".238 In rebuttal, India supplemented these arguments with additional evidence and 
argumentation seeking to demonstrate that the NMDC  Board was, in fact, independent of the GOI.239 
7.94.   The United  States responded that the key point of the USDOC's  explanation was that the 
Directors, not the staff, held price negotiations, and that the GOI -appointed Chairman had approval 
power over such negotiations. For the United  States, these conclusions can be drawn irrespective of 
whether pr ice negotiations were undertaken by a "Committee" of Directors or the "Board" of 
Directors. In respect of the "corporate governance norms", the United  States contends that there 
was no record evidence to support this assertion, and in any case, that fact w as outweighed by the 
totality of evidence showing meaningful control by the GOI.240 
7.95.   In light of India's  allegation of error, the question before us is whether the USDOC made a 
factual error in concluding, in India's  words, that "[d]irectors (who are appointe d by the GOI) hold 
 
233 We reiterate, in this regard, that the NMDC's  apparent rationale appeared to align with the evidence 
on the GOI's  policy rationale for export restrictions (see above paras. 7.47, 7.84 and 7.89). We also note that, 
contrary to India's  contention that the USDOC engaged i n a "mere assertion… unsupported by any evidence on 
record", the Hoda Report explicitly stated that export restrictions would "have an adverse impact on domestic 
prices of the commodity and, consequently, on the development of iron ore mining as a whole". (Hoda Report, 
(Exhibit USA-8), para. 7.55). This too demonstrates to us that there was record evidence that supports the 
USDOC's  explanation, contrary to India's  contention.  
234 India's  comments on the United  States'  response to Panel question No.  19. 
235 See above paras. 7.5-7.6. See also Appellate  Body Report, EU – Fatty Alcohols  (Indonesia) , 
para. 5.99. 
236 India's first written submission, paras.  75(b) and (c), 76 and  78; second written submission, 
paras.  99-102; Uni ted States'  response to Panel question No.  18; India's  comments on the 
United  States'  response to Panel question Nos.  18-19. Indeed, India frame d its case in large part  as premised 
on whether there is any record  evidence  at all that  could sustain certain p ropositions . 
237 India's first written submission, para. 77. 
238 India's first written submission , paras.  75-77; second written submission paras.  95-98. 
239 India's  second written submission, para.  94. 
240 United  States'  first written submission, paras.  181-182. 
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  price negotiations for the sale of iron ore".241 The relevant passage of the USDOC's  explanation that 
India challenges is as follows:  
The directors, not NMDC staff members, hold negotiations with customers to discuss 
price and quantity. Th e chairman approves negotiation and then contracts are submitted 
to the Board for ratification. This demonstrates that the board members, particularly 
the chairman, which is appointed by the GOI, are not mere observers but active and 
involved in the day -to-day operations of the NMDC on the GOI's  behalf.242 
7.96.   The principal evidence relied upon by the USDOC to justify this explanation is from the GOI 
Verification Report, as follows:  
The NMDC official also explained that the directors hold negotiations with customers 
where they discuss the price and quantity of the contracts. These negotiations are 
approved by the chairman and then are submitted to the Board for ratification. Each 
contract is included on a list that is ratified by the Board, as every pricing contract must 
be ratified by the entire Board. The NMDC official explained that at a minimum, Board 
meetings are held once a quarter.243 
7.97.   The evidence with which  India now seeks to rebut the USDOC's  explanation is from the 
GOI's  questionnaire response in the 2004 administrative review , as follows:  
In accordance with Board approved policy the Chairman and the Managing Director of 
NMDC constitutes a Committee of Directors to carry our negotiations with various 
domestic customers on price fixation. …  
As explaine d above, a Committee of Directors carries out negotiations with various 
customers and finalizes the prices.244 
7.98.   Contrary to India's  argument245, there is nothing inherently inconsistent between these 
aspects of evidence. Both explain a price negotiation process  in which the Chairman and Directors 
are actively involved. Both aspects of evidence largely corroborate the USDOC's  conclusion that 
"[t]his demonstrates that the board members, particularly the chairman, which is appointed by the 
GOI, are not mere observers but active and involved in the day -to-day operations of the NMDC on 
the GOI's  behalf".246 
7.99.   We note that India does n ot challenge the USDOC's  findings regarding the fact that certain 
Directors were appointed by GOI bodies.247 Rather, India seems to suggest that, since the price 
negotiations were conducted by a subset of Directors (i.e. the Committee), and since the USDOC 
itself acknowledged that some of the Directors were not appointed by GOI bodies, it is at least 
possible that the price negotiations were conducted by those Directors not appointed by GOI 
bodies.248 This argument is unconvincing. Even if India is correct that  the "Committee" was 
comprised of Directors not appointed by GOI bodies, the evidence shows that the process was led 
by the Chairman (who was appointed by a GOI body), and was subsequently subject to approval by 
the Board249, which the USDOC found to compris e a majority of Directors appointed by GOI bodies.250 
Thus, in line with the USDOC's  finding, the Directors appointed by GOI bodies were involved in the 
price negotiations regardless of the composition or role of the "Committee of Directors" that India 
relies upon.  
 
241 India's  first written submission, paras.  75(a) and 77.  
242 Final Determination, (Exhibit IND -60), p.  20. (fn omitted)  
243 Verification Report, (Exhibit USA -3), p.  6 (referred to in Final Determination , (Exhibit IND -60), 
p. 20). 
244 GOI's supplemental questionnaire response, 2004 administrative review , (Exhibit IND -13), pp.  5-6. 
245 India's  first written submission, para.  77; second written submission, paras.  95 and 98.  
246 Final Determination, (Exhibit IND -60), p.  20. 
247 India's  first written submission, para.  77; second written submission, para.  94. 
248 India's  first written submission, para.  77; second written submission, para.  98. 
249 Final Determination, (Exhibit IND -60), p.  20 (referring to Verification Repor t, (Exhibit USA -3), p.  6). 
250 Final Determination, (Exhibit IND -60), p.  20. 
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  7.100.   India also argued that the USDOC failed to give "sufficient credence to the 'independence'  of 
the directors that are appointed as per corporate norms, even though this was also made clear on 
record in the 2004 [administrative review] "251, citing a pa ssage in the GOI's  questionnaire response 
that "[t]he Board also has 8 positions of independent non -executive Directors required to comply 
with the corporate governance norms of the national stock markets".252 Again, however, this 
argument and evidence is un convincing because it relates only to the "independent non -executive 
Directors". India has not demonstrated that it relates to the Directors appointed by GOI bodies253, 
who the USDOC found to comprise a majority of the Board, and we recall that India does no t 
challenge this finding.254 
7.101.   We note that India made certain arguments regarding the Board's  independence in rebuttal 
to arguments by the United  States. We do not delay in addressing these arguments of India because 
they do not support India's  original claim  that the USDOC made a factual error in finding that 
"[d]irectors (who are appointed by the GOI) hold price negotiations for the sale of iron ore".255 
7.102.   For the foregoing reasons, we conclude that India has not demonstrated that the USDOC 
acted inconsistently with Article  1.1(a)(1) of the SCM  Agreement by incorrectly finding, as a matter 
of fact, that the NMDC's  Directors appointed by the GOI hold price negotiations for the sale of iron 
ore.256 
7.2.8   Conclusion on India's  claims under Article  1.1(a)(1) of the SCM  Agree ment  
7.103.   We have evaluated each of India's  allegations of error. As we have explained in the foregoing 
sections, India has not demonstrated to the Panel on the basis of these allegations of error that the 
USDOC had acted inconsistently with Article  1.1(a)(1) of the SCM  Agreement. Therefore, our overall 
conclusion is that India has not demonstrated that the USDOC acted inconsistently with 
Article  1.1(a)(1) of the SCM  Agreement.  
7.3  Benefit: India's  claims under Article  14(d) of the SCM  Agreement  
7.104.   India requests the Panel to find that the USDOC's  determination of a benchmark for 
ascertaining whether the NMDC's  sales of high -grade iron ore conferred a benefit is inconsistent with 
Article  14(d) of the SCM  Agreement as a result of a number of errors regarding three poten tial 
sources of benchmarking data: the Tata price quote , an association price chart, and the 
NMDC's  export prices.  
7.105.   These alleged errors are as follows. First, India submits that the USDOC applied an incorrect 
legal standard in preferring "actual transacti on prices" to identify a benchmark under 
Article  14(d).257 Second, India submits that the USDOC failed to explain why it considered the 
association price chart and the Tata  price quote – which we refer to collectively as the "domestic 
pricing information" – to be "not actual prices".258 Third, India submits that the USDOC failed to 
carry out an objective assessment of domestic pric ing information, particularly in relation to the 
terms of sale, the identities of the selling or buying parties, and the destination for the 
 
251 India's  first written submission, para.  77. 
252 GOI's supplemental questionnaire response, 2004 administrative review , (Exhibit IND -13), p.  4. In 
its second written submission, Indi a draws attention to copies of the NMDC's  financial reports that it has 
submitted to the Panel proceedings, together with copies of the "corporate norms" with which the independent 
board members were required to comply. The Panel rejected these financial s tatements in the original 
proceedings as non -record evidence ( Panel Report, US – Carbon Steel (India) , fn 255), and likewise the 
"corporate norms" evidence now submitted by India was rejected from inclusion on the reinvestigation record 
by the USDOC ( Rejec ted case brief, (Exhibit IND -56), annexes 1 and 2). For the same reasons as in 
section  7.2.5.3  we consider that this material is not properly before us.  
253 That is, the Chairman and functional directors appointed by the Public Enterprise Selection Board of 
the Department of Public Enterprises (GOI), the directors appointed from the Ministry of Steel (GOI), and the 
director appointed from the GOI -owned Minerals & M etals Trading Corporation . 
254 See above para. 7.99. 
255 India's  first written submission, paras.  75(a) and 77.  
256 India's first written submission, para. 77. 
257 India's  first written submission, paras.  111-113. 
258 India's  first written submission, paras.  119-121. 
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  transactions.259 Fourth, India submits that the USDOC failed to provide a reasoned and adequate 
explanation as to why the Tex Report prices were a more appropriate benchmark than the domestic 
pricing information.260 Fifth, India submits tha t the USDOC erred in rejecting the Tata price quote 
on the basis of its designation as confidential information. Sixth, India submits that the USDOC erred 
in its rejection of the NMDC's  export prices as an appropriate benchmark under Article  14(d). India 
also contends that these errors violate the chapeau  of Article  14 of the SCM  Agreement.  
7.106.   The United  States responds that the USDOC analysed the three potential sources of 
benchmarking data referred to by India, and determined that these three sources were no t 
appropriate benchmarking sources.261 This was because they were not shown to consist of 
market -determined prices and did not reflect prevailing market conditions in India. For the 
United  States, these determinations were supported by positive record eviden ce, and were thus 
consistent with both the chapeau  of Article  14 and Article  14(d) of the SCM  Agreement, as well as 
the recommendations and rulings of the DSB.262 The United  States also contends that one of 
India's  claims or arguments is outside the scope of the present proceedings under Article  21.5 of 
the DSU.  
7.107.   We begin our assessment of India's  allegations of error by setting out the legal standard 
applicable to identifying benchmarks for "benefit" determinations under Article  14(d) of the 
SCM Agreement. We  then evaluate each of these allegations of error regarding the 
USDOC's  rejection of the three aforementioned sources of benchmarking data.  
7.3.1   The legal standard applicable to "benefit" determinations under Article  14(d) of the 
SCM Agreement  
7.108.   Article  14(d) of the SCM  Agreement deals with situations in which the financial contribution 
in the sense of Article  1.1(a)(1)(iii) of the SCM  Agreement is in the provision of goods or services or 
the purchase of goods by a government. It sets out a framework263 for investig ating authorities in 
determining whether the provision of goods or services in question confers a benefit on the recipient. 
Specifically, the provision of a good by a government:  
[S]hall not be considered as conferring a benefit unless the provision is mad e for less 
than adequate remuneration[.] …  The adequacy of remuneration shall be determined in 
relation to prevailing market conditions for the good or service in question in the country 
of provision or purchase (including price, quality, availability, mar ketability, 
transportation and other conditions of purchase or sale).  
7.109.   The Appellate  Body has established that determining the benefit conferred by a subsidy 
involving the provision of a good for LTAR requires a comparison between the terms on which the 
good in question is provided to the producers/exporters under investigation and the terms "that 
would have been available to [those producers/exporters] on the market".264 Article  14(d) 
establishes that the standard for determining whether goods were provided t o producers/exporters 
for LTAR is whether they were provided on terms more advantageous than those available in the 
market. The focus of the analysis is on the "adequacy of the remuneration" received by the 
government: if it is inadequate, i.e. lower than the market remuneration for th e goods in question, 
a benefit is deemed to have been conferred on the recipient of the goods.265  
7.110.   An analysis of whether remuneration is "less than adequate" and thus confers a benefit in 
the sense of Article  1.1(b) involves a comparator or benchmark, i.e. the "adequate" remuneration, 
with which the price paid by the producer/exporter for the goods in question can be compared. Since 
 
259 India's  first written submission, paras.  122-124. 
260 India's first written submission, paras.  114-117. India submit s both that this argument is not a 
"separate claim" (India 's second written submission, para. 149), but also appears to present it as a standalone 
allegation of error that could itself suffice to ground a violation of Article  14(d) . (India 's first written 
submission, paras.  114-118; second written submission, para. 143). We deal with this question of 
characterization below, to the extent it becomes relevant to our analysis.  
261 United  States'  first written submission, para.  320. 
262 United  States'  first written submission, para.  320. 
263 Appellate  Body Report, US – Softwood Lumber IV , para.  92. 
264 Appellate  Body Report, Canada – Aircraft , para.  157. 
265 Appellate  Body Report, US – Softwood Lumber IV , para.  84. 
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  terms on the market in the country of provision are the relevant standard for the comparison, 
Article  14(d) requires investigat ing authorities to determine and use a benchmark which  relates to 
the prevailing market conditions in the country of provision.266 The last sentence of Article  14(d) 
sets out an illustrative list of prevailing market conditions which may be relevant in under taking the 
necessary comparison between the terms on which the good was provided by the government and 
the benchmark used by the authority, "including price, quality, availability, marketability, 
transportation and other conditions of purchase or sale" for  the goods in question.  
7.111.   We agree with the Appellate  Body's  view that "prevailing market conditions" in Article  14(d) 
"consist of generally accepted characteristics of an area of economic activity in which the forces of 
supply and demand interact to determ ine market prices".267 It follows that any benchmark for 
comparison purposes in determining the adequacy of remuneration must consist of 
market -determined  prices for the same or similar goods in the country of provision.268 Accordingly, 
prices established in a ccordance with the prevailing market conditions for the same or similar goods 
in the country of provision are presumed to be an adequate benchmark. They are the 
"starting -point"269 of any analysis carried out in this context.270 This implies that, before resor ting 
to an alternative benchmark, an investigating authority must determine whether market prices in 
the country of provision can be used as a benchmark to establish whether the recipient has 
benefitted from the financial contribution in question.271 If not,  an investigating authority must 
adequately explain its decision before proceeding to determine an alternative benchmark.272 In the 
original proceedings, the Appellate  Body clarified that the ability to have recourse to out -of-country 
prices:  
[D]oes not sugg est that an investigating authority may have easy recourse to 
out-of-country prices. … [T]he obligation under Article  14 to calculate the amount of 
subsidy in terms of the benefit to the recipient encompasses a requirement to conduct 
a sufficiently diligen t investigation into, and solicitation of, relevant facts, and to base 
a determination on positive evidence on the record. To our minds, it is only once an 
investigating authority has properly complied with its obligation to investigate whether 
there are i n-country prices that reflect prevailing market conditions in the country of 
provision that it may, consistently with Article  14(d) of the SCM  Agreement, use 
alternative benchmarks.273 
7.112.   There is no defined, exhaustive set of circumstances in which an authorit y may resort to an 
out-of-country benchmark.274 One circumstance identified in US – Softwood Lumber IV  is where it 
is established that in -country prices are unreliable or unavailable due to government predominance 
in the market as a provider of goods.275 Furth er, in the original proceedings, the Appellate  Body 
stated:  
[W]e do not consider that in -country prices may not be used to determine a benchmark 
only where such prices are distorted as a result of governmental intervention in the 
 
266 Appellate  Body Report,  US – Softwood Lumber IV , paras.  89 and 96.  
267 Appellate  Body Report, US – Countervailing Measures (China) , para. 4.46 (quoting Appellate  Body 
Report, US – Carbon Steel (India) , para.  4.150).  
268 Appellate  Body Report, US – Countervailing Measures (China) , para.  4.46 (referring to 
Appellate  Body Report, US – Carbon Steel (India) , para.  4.151; in turn referring to Appellate  Body Report, 
US – Softwood Lumber  IV, para.  89). 
269 Appellate  Body Report, US – Softwood Lumber IV , para.  90. 
270 Appellate  Body Report, US – Carbon Steel (India) , para.  4.151:  
Proper benchmark prices would normally emanate from the market for the good in question in 
the country of provision. To the extent that such in -country prices are market determined, they 
would necessarily have the requisite connection with the prevailing market conditions in the 
country of provision that is prescribed by the second sentence of Article  14(d).  
271 See, e .g. Appellate  Body Report, US – Softwood Lumber IV , para.  90: "investigating authorities may 
use a benchmark ot her than private prices in the country of provision under Article 14(d), if it is first 
established that private prices in that country are distorted  because of the government's predominant role in 
providing those goods" . (emphasis added)  
272 Panel Reports, Canada – Renewable Energy / Canada – Feed-in Tariff Program , para.  7.274 
(referring to Appellate  Body Report, US – Softwood Lumber IV , para.  93). 
273 Appellate  Body Report, US – Carbon Steel (India) , para.  4.190.  
274 Appellate  Body Report, US – Countervailing Measures (China) , para.  4.76. 
275 Appellate  Body Report, US – Softwood Lumber IV , para.  99. 
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  market. Indeed, there may be other circumstances  where an investigating authority 
would not be required to use in -country prices to determine a benchmark for the 
purposes of Article  14(d), for example, where information pertaining to in -country 
prices cannot be verified so as to determine whether they are market determined  in 
accordance with the second sentence of Article  14(d). As we see it, to find that an 
investigating auth ority is precluded from using alternative benchmarks in these 
situations would be contrary to a proper interpretation of Article  14(d).276 
7.113.   With the foregoing understanding in mind, we now turn to the parties'  arguments in relation 
to the proper legal standar d for the identification of an appropriate benchmark under Article  14(d) 
of the SCM  Agreement.  
7.3.2   Whether the USDOC applied an incorrect legal standard in rejecting the domestic 
pricing information  
7.114.   India claims that the USDOC acted inconsistently with Article  14(d) of the SCM  Agreement 
by rejecting the domestic pricing information solely because it did not reflect "actual" transactions.277 
India argues that the Appellate  Body concluded in the original proceedings that Article  14(d) does 
not require the use of ac tual transaction prices.278 For India, based on the Appellate  Body's  ruling, 
the USDOC's  reinvestigation "was expected" to consider any market -determined prices, including 
e.g. non -actual prices.279 
7.115.   The United  States disagrees that the lack of actual transacti on prices was the "sole reason" 
for the USDOC's  determination, pointing instead to other reasons that impugned the reliability of 
the domestic pricing information.280 Further, the United  States disagrees that Article  14(d) requires  
the use of domestic data n ot based on actual sales. Rather, contrary to India's  arguments on the 
Appellate  Body's  reasoning on that point, the United  States contends that the Appellate  Body has 
recognized that actual transaction prices should be used over provisional/notional price s as the 
primary benchmark.281 
7.116.   It is apparent that the parties disagree as to the legal standard actually applied by the 
USDOC. For India, the USDOC applied a legal standard in which the "sole reason" for rejecting the 
domestic pricing information was becaus e it was not "actual".282 For the United  States, the USDOC 
applied a legal standard in which the domestic pricing information was rejected on the basis that it 
was not reliable since it did not contain actual market determined transactions .283 According to the  
United  States, this assessment included – but was not limited to – the "non -actual"284 character of 
the domestic pricing information.285 
 
276 Appellate  Body Report, US – Carbon Steel (India) , para.  4.189. (emphasis added)  
277 India's  first written submission, para . 113. 
278 India's  first written submission, paras.  112-113. 
279 India's  first written submission, paras.  108-109. 
280 United  States'  first written submission, paras.  279 and 284.  
281 United  States'  first written submission, paras.  287 and 291.  
282 India's  first wri tten submission, para.  113. 
283 United  States'  second written submission, paras.  144 and 147.  
284 The parties use various descriptors including "non -actual prices" and "non -actual sales transactions" 
(India's  second written submission, paras.  130, 133, and 135), "not actual transaction prices" 
(United  States'  first written submission, para.  276; India's  second written submission, para.  125), "notional 
prices or price estimates" (India's  second written submission, para.  124(e); United  States'  second written 
submission para.  142). We understand these terms to refer to a figure or a piece of pricing data that is not a 
price for a completed sales transaction. ( Preliminary Determination, (Exhibit IND -55), p. 10: "there was no 
record evidence to show that the prices are for completed sales transactions  as opposed to a notional price list 
or prices estimates " (emphasis  added); and "the chart does not indicate whether the prices  were for actual 
transactions  or merely were for price quotes" ( emphasis  added)). We understand the reference to "provisional" 
prices to be more specific, referring to uncompleted sales transactions in particular. ( Final Determination, 
(Exhibit IND -60), p.  10: "2006 prices  are provisi onal, i.e., not final, and thus not actual transaction prices " 
(emphasis  added)). We use these terms in the same way as the parties in their submissions, and as the 
USDOC in its determinations.  
285 United  States'  second written submission, paras.  151 and 153 . 
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  7.117.   We therefore begin by ascertaining the legal standard that the USDOC applied, as revealed 
through its determinations, befo re examining whether that standard comports with our 
understanding of Article  14(d) as set out above.286 
7.118.   As the USDOC explained, its "preferred benchmark … is an observed market price from actual 
transactions within the country under investigation  … because such prices generally would be 
expected to reflect most closely the prevailing market conditions of the purchaser under 
investigation."287 On that basis, the USDOC set out to "first determine whether there are market 
prices from actual sales transactions tha t can be used to determine whether [the] NMDC sold high 
grade iron ore for [ LTAR]".288 In respect of the association price chart, the USDOC found that the 
2006 prices – that is, the prices corresponding with the period of investigation (POI)  – were 
"provisio nal, i.e., not final, and thus not actual transaction prices".289 The USDOC also considered 
that "the GOI is unable to point to any evidence to contradict the Department's  determination that 
these provisional or estimated prices are not reliable for benchmar king purposes" .290 The USDOC 
noted in particular that "[i]t is not clear the selling or the buying party [sic] and whether the 
destination is domestic or export".291 The USDOC  made similar observations with respect to the Tata 
price quote , namely that "there is insufficient information on the record to determine what the price 
represents", noting in particular that "[i]t is unclear as to whether it is a price quote or an actual  
transaction price", and further, that "[t]he record also does not identify the purchaser" and "[t]here 
is no information on the record identifying what or who the entity is". The USDOC had applied similar 
considerations in its Preliminary Determination:  
With respect to the association chart, the data provided therein, with three exceptions, 
does not identify the entities selling the iron ore. In addition, there was no record 
evidence to show that the prices are for completed sales transactions as opposed t o a 
notional price list or prices estimates. The association chart is simply a page of data 
with no explanation of the information contained in the document . Therefore the 
Department is unable to rely  on the chart for benchmarking purposes due to the fact 
that the record does not contain enough information  on how the list prices were 
determined, what parties were involved in determining the prices and if the prices are 
actual iron ore transactions during the POR.  
… 
With regard to the March 4, 2006 Tata pri ce quote there is insufficient information on 
the record to determine what the price represents . It is unclear whether it is a price 
quote or an actual transaction price. The record also does not identify the purchaser. 
There is no information on the recor d identifying what or who the entity is.292 
7.119.   Based on the foregoing, we find that the legal standard applied by the USDOC in rejecting 
the domestic pricing information was whether the data was reliable as evincing market -determined 
prices. The USDOC indicated  a preference for completed sales transactions in that regard, because 
these will more reliably  evince market -determined prices.293 The USDOC also looked for other 
information that might indicate that the data reliably evinced market -determined prices despit e 
exhibiting a "notional", "estimated" or "provisional" character, namely the destination of the 
transaction (domestic or for export), the identities of the transacting parties, and the terms of sale.  
7.120.   We turn now to whether the USDOC's  legal standard compo rts with what is required by the 
legal standard under Article  14(d) of the SCM  Agreement. We consider it permissible under 
Article  14(d) for the USDOC to have treated what it considered to be "notional", "provisional" and 
 
286 See above section 7.3.1. 
287 Final Determination, (Exhibit IND -60), p.  10. 
288 Final Determination, (Exhibit IND -60), p.  10. 
289 Final Determination, (Exhibit IND -60), p. 10. 
290 Final Determination, (Exhibit IND -60), p.  10. 
291 Final Determination, (Exhibit IND -60), p.  10. 
292 Preliminary Determination, (Exhibit IND -55), p. 10. (fns omitt ed; emphasis added)  
293 Final Determination, (Exhibit IND -60), p.  10: "[a]s provided in our  regulations, the preferred 
benchmark in the hierarchy is an observed market price from actual transactions within the country under 
investigation. This is because such prices generally would be expected to reflect most closely the prevailing 
market condit ions of the purchaser under investigation." (fn  omitted)  
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  "estimated" prices with caution. T his is because, if a putative price is unfinalized and subject to 
continuing negotiation in a market, the interaction between market forces has not yet fully taken 
place for such transactions.294 Likewise, if the "price" is merely an estimate295 of what actual  prices 
may be, as opposed to being the direct result of a completed sales transaction, it will be unlikely to 
constitute direct evidence of the interaction between market forces. Pricing data based on "notional", 
"provisional" and "estimated" prices, ther efore, may not  be indicative of " prevailing " market 
conditions under Article  14(d). By their nature, they are not direct evidence of actual instances where 
market conditions have prevailed  to produce a price through a completed, arms -length sales 
transacti on. In saying this, we do not suggest that "non -actual" prices should be precluded  from 
being used under Article  14(d) as indicative of "prevailing market conditions". They may represent 
the only available record evidence296, or there may be other evidence i ndicating that they reflect the 
full interaction between market forces despite not being "actual" or finalized prices.297 
7.121.   In a context where price quotes or estimates may not be indicative of "market -determined" 
prices because they are not the direct result of an interaction between market forces or because 
they are unfinalized and may change through a process of negotiation between a buyer and seller, 
we consider it permissible under Article  14(d) for the USDOC to have required additional information 
in orde r to be satisfied that such pricing data is nonetheless reliable and market -determined. Such 
information could indicate that these "non -actual" prices are indeed close approximations of 
"market -determined" prices, or could have enabled the USDOC to verify with the transacting parties 
what the pricing data actually represents.298 Where these kinds of additional details are lacking, we 
consider it permissible under Article  14(d) for the USDOC  to have rejected such pricing information 
as not reliable in evincing market -determined prices.  
7.122.   India suggests that the Appellate  Body's  findings in the original proceedings support its 
argument that the USDOC applied an incorrect legal standard.299 We disa gree. The key point for the 
Appellate  Body in the original proceedings was whether the benchmark chosen "is a 
market -determined price reflective of prevailing market conditions in the country of provision".300 In 
our view, when confronted with pricing inform ation that it considered to have a "notional", 
"estimated" or "provisional" character, the USDOC acted reasonably in probing whether such 
information was "market -determined". Further, the Appellate  Body recogni zed in the original 
proceedings that in -countr y prices need not be used "where information pertaining to in -country 
prices cannot be verified so as to determine whether they are market determined in accordance with 
the second sentence of Article  14(d)".301 As illustrated earlier302, the USDOC sought to ve rify whether 
the information it considered to be "notional", "estimated" or "provisional" was "market -determined" 
through other information, and found this to be lacking. In our view, therefore, the USDOC acted in 
a manner that is consistent with the Appel late Body's  findings in the original proceedings.  
7.123.   In summary, India has not demonstrated how the USDOC erred in the legal standard it 
applied when evaluating the domestic pricing information. As the United  States contends, the focus 
of the USDOC was on wh ether the domestic pricing information reliably evinced market -determined 
prices.303 The USDOC's  conclusion was that the information pertained to "notional", "estimated" or 
"provisional" prices as opposed to "completed sales transactions" and that this impug ned the 
reliability of the information, together with an absence of other information that could have verified 
 
294 European  Union's  third-party submission, para. 94: "[a]ctual transaction prices are a more accurate 
and reliable indicator of the adequate remuneration than a provisional price (e.g. a list price or offer price) 
which may be subject to further negotiations and changes, pos sibly even significant changes. " 
295 See footnote  280 above regarding the terms "est imated" and "notional" prices.  
296 The United  States also accepts this. (United  States'  first written submission, para.  293). The 
European  Union takes the same position. (European  Union's  third-party submission, para.  94). 
297 Canada states, in this regard, th at: "[i] t is not difficult to imagine circumstances where provisional 
prices track actual transaction prices closely, such that they can be viewed as a reliable measure of 
'market -determined prices that reflect prevailing market conditions in the country  of provision'." 
(Canada's  third-party submission, para.  19). 
298 Canada's  third party -submission, para.  19. 
299 India's  first written submission, paras.  109 and 112; second written submission, paras.  131 and 134.  
300 Appellate  Body Report , US – Carbon Steel (Indi a), para. 4.154.  
301 Appellate  Body Report, US – Carbon Steel (India ), para. 4.189.  
302 See above para. 7.119 . 
303 United  States'  first written submission, paras.  279-280, 284, and 287; second written submission, 
para. 140. 
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  whether these prices were market -determined despite their "notional", "estimated" or "provisional" 
character.304  
7.124.   We therefore find that India has not demonstrated that the USDOC applied an incorrect legal 
standard, and thus acted inconsistently as a matter of law, with Article  14(d) of the SCM  Agreement.  
7.3.3   Whether the USDOC erred in its factual finding that the data in the association price 
chart was "provisional or estimated"  
7.125.   India claims that the USDOC acted inconsistently with Article  14(d) of the SCM  Agreement 
by failing to undertake an objective examination of, and explain sufficiently, the basis for rejecting 
the prices in the association price c hart as not representing actual transactions.305 India argues that 
the association price chart "specifically states that these are prices of iron ore and not notional prices 
or price estimates", and that the prices for "financial years 2004 -05 and 2005 -06 ar e undisputedly 
actual prices".306 India also submits that other details, including the identities of some of the 
transacting parties and the nature of the product transacted, substantiate these as actual transaction 
prices.  
7.126.   The United  States responds that t he chart clearly designates the 2006 prices as 
"provisional", which corresponds to the period of investigation for the review in question 
(1 January -31 December 2006).307 The United  States also explains that the absence of other 
information on, e.g. terms of  sale, contributed to the USDOC's  consideration that the domestic 
pricing information did not reliably evince market -determined prices.308 
7.127.   In view of India's  claim, the question before us is whether it was reasonable for the USDOC 
to conclude, in relation to  the association price chart, that:  
[T]here was no record evidence to show that the prices are for completed sales 
transactions as opposed to a notional price list or prices estimates.309 
[T]he GOI is unable to point to any evidence to contradict the 
Departm ent's determination that these provisional or estimated prices are not reliable 
for benchmarking purposes.310 
7.128.    It is useful at this stage to distinguish between the 2005 -2006 prices and 2006 -2007 prices 
in the association price chart. This is because the 200 6-2007 prices are designated clearly as " P" for 
"provisional", whereas the 2005 -2006 prices are not designated in that way. In response to a 
question from the Panel, India stated that it "accepts that the designation 'p'  for 'provisional'  is in 
respect of 2006-07 prices and does not reflect actual, or completed, sales transactions".311 
Accordingly, we do not consider that the USDOC erred to the extent that it concluded that the 
2006-2007 prices were "provisional" or "estimated" prices.  
7.129.   Turning to the 2005 -2006 prices, during the substantive meeting with the parties, in 
response to a question of the Panel312, India stated that these prices:  
[A]re actual transaction prices, but certainly, we would say that they cannot be 
disaggregated because the single price char t only shows, for the entire year, what must 
 
304 United  States'  first written submission, paras.  276 and 279 -280; second writte n submission, 
paras.  140, 144, 151, and 153.  
305 India's  first written submission, para.  119. 
306 India's  first written submission, paras.  119-120. India clarified that its claim in this regard did not 
extend to the Tata price quote. ( India's  response to Panel  question No.  22). 
307 United  States'  first written submission, paras.  276-277. 
308 United  States'  first written submission, paras.  277-278 and 280.  
309 Preliminary Determination, (Exhibit IND -55), p. 10. 
310 Final Determination, (Exhibit IND -60), p.  10. 
311 India's  response to Panel question No.  24. 
312 In question No. 12(b) at  the meeting with the Parties, the Panel asked: " [c]an the parties please 
comment on whether anything in the association price chart or otherwise on the reinvestigation record shows 
whether, and how, the 2005 -06 prices listed in that chart could have been disaggregated to match the period 
of investigation in order to reliably evince market -determined prices prevailing during that peri od?" 
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  be an average price from various mines with various terms of sale what are the various 
prices that have been indicated …  
… it must be [an] average of actual prices because it is not one particular customer to 
whom from one mine it is sold. It is an aggregation of the various prices sold from a 
particular mine to various customers, but it is an average actual price.  
7.130.   India subsequently confirmed that the prices in the association price chart, including the 
2005-2006 prices, are not individual transaction prices but are averages for the relevant period 
described .313 
7.131.   Based on this understanding of what the 2005 -2006 prices represent, we see nothing 
erroneous in the USDOC's  finding that they were " a notional price lis t or price[] estimates".314 The 
figures listed in the chart were not real prices. They did not themselves represent the direct outcome 
of the interaction between market forces that resulted in a completed sales transaction. Rather, they 
were averages that sought to reflect what the price would be (or, indeed, was) across the listed time 
period. These figures were thus "noti onal"315 prices, insofar as they were averages that aggregated 
the various prices paid by various customers on the basis of various terms of sale over a certain 
time period, according to India's  own explanation , as opposed to themselves being the price that 
was actually paid in a completed sales transaction.  
7.132.   Further, the underlying data may have been derived from actual transactions, but the figures 
listed in the chart were an average of various prices that, according to India, could not be 
disaggregated.316 This is significant for several  reasons.  
7.133.   First, the time period that the notional 2005 -2006 pricing data represented only overlapped 
with the first quarter of the  POI. Therefore, it was not possible to isolate from the association price 
chart the portion of  data reflected in the notional 2005 -2006 pricing data that matched the POI. This 
diminishes the utility of the notional 2005 -2006 pricing data substantially, because the association 
price chart shows large variations between these averaged notional data a s between 2004 -2005, 
2005-2006, and 2006 -2007.317 Against a background of price volatility, the inability to disaggregate 
the notional 2005 -2006 pricing data made it impossible to verify whether that data reflected 
prevailing market conditions during the POI . In this regard, we find it reasonable for the USDOC to 
have concluded that it was "unable to rely on the chart for benchmarking purposes due to the fact 
that the record does not contain enough information on how the list prices were determined, what 
parties were involved in determining the prices and if the prices are actual iron ore transactions 
during the POR ."318  
7.134.   Second, the inability to disaggregate the notional 2005 -2006 pricing data made it impossible 
to verify whether the transactions on which the d ata were based were market -determined. For 
instance, it would not have been possible to test whether the sales were  at arm's-length, or whether 
they involved related -party transactions or government procurement.319 The USDOC referred to this 
 
313 India's  response to Panel question No.  25. 
314 Preliminary Determination, (Exhibit IND -55), p. 10, confirmed in Final Determination, 
(Exhibit  IND-60), p.  10. Indeed, this understanding accords with the GOI's  submission during the 
reinvestigation: In the GOI 's case brief ((Exhibit IND -57), p. 32), the GOI stated that "the prices indicated in 
this association chart are based on  actual transaction prices ." (emphasis  added)  
315 Final Determination, (Exhibit IND -60), p.  10. See footnote 280 above regarding the term "notional".  
316 India's  response to Panel question No.  26(b).  
317 GOI 2006 administrative review  (8 February 2008), (Exhibit IND -35), p.  5. 
318 Preliminary Determination, (Exhibit IND -55), p. 10 (emphasis added). In view of the significant and 
self-evident price volatility across different Indian financial years that was reflected in the figures in the 
association price chart, we reject India's  contention that the USDOC should have used the 2004 -2005 data 
over other sources. (India's  response to Panel question No.  27). 
319 We do not presume that the prices paid by governmental purchasers are inherently unreliable or not 
market -determined. We merely illustrate, in the abstract, what could result from  an inability to disaggregate 
the data and verify its source. For instance, the record evidence from the original proceedings showed that 
Tata was both a buyer and seller of iron ore, and thus its sales reflected in the association price chart could 
give r ise a plausible possibility of related -party transactions whose reliability an investigating authority may 
wish to test for benchmarking purposes. ( Panel Report, US – Carbon Steel (India ), paras.  7.148 and 7.155). 
There was also evidence in the original pr oceedings that Mysore Minerals Limited (MML) – an entity that the 
USDOC found to be a "public body" (ibid. fn 332) – purchased iron ore. (Ibid. para.  7.459).  
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  problem when it explained that " the record does not contain enough information on how the list 
prices were determined , [and] what parties were involved  in determining the prices ".320  
7.135.   Based on India's  explanation that figures in the association price chart were averages as 
earlier described, and that these averages could not be disaggregated to be tailored to the POI or 
to be tested against whether the transactions on which they were based were market -determined, 
we consider it reasonable for the USDOC to have concluded that  "these provisional or estimated 
prices are not reliable for benchmarking purposes".321 We reject, as factually inaccurate, 
India's  contention that the association price chart "specifically states that these are prices of iron 
ore and not notional prices or price estimates".322 
7.136.   We finally note that India suggests that the USDOC erred because, during the 
reinvestigation, it did "not indicate[] what type of additional information would have proved that the 
price contained in the chart is actual transaction price" .323 However, as India's  own explanation 
above demonstrates, the figures in the association price chart did not themselves represent actual 
transaction prices. Rather, the figures were averages, and it was not possible to disaggregate these 
averages to ident ify actual transaction prices. Thus, we cannot find fault with the USDOC for failing 
to indicate to  the interested parties what additional information would have demonstrated that the 
association price chart contained actual prices, when it is apparent tha t the USDOC had already 
arrived at the correct conclusion that the figures in the association price chart comprised "a notional 
price list or prices estimates", and when it is also apparent that these figures cannot be 
disaggregated to derive their underly ing actual transaction data. We also note that India clarified in 
response to a question from the Panel that it did not pursue a claim in relation to the association 
price chart on the basis of "insufficiency of evidence as a reason to reject various argum ents raised 
by India and for its refusal to comply with the recommendations and rulings of the DSB".324  
7.137.   For the foregoing reasons, we find that India has not demonstrated that the USDOC acted 
inconsistently with Article  14(d) of the SCM  Agreement by failing to undertake an objective 
examination of, and explain sufficiently, the basis for rejecting the prices in the association price 
chart as not representing actual transactions.325 
7.3.4   Whether the USDOC erred because its examination of the domestic pricing 
information was neither objective nor based on coherent reasoning  
7.138.   India claims that the USDOC acted inconsistently with Article  14(d) of the SCM  Agreement 
because its treatment of the terms of sale, the identities of the transacting parties, and the 
destin ation for the transaction, was not based on an objective examination.326 India challenges both 
the relevance and accuracy of the USDOC's  assessment of these variously -lacking elements in the 
domestic pricing information.327  
 
320 Preliminary Determination, (Exhibit IND -55), p. 10 (emphasis added). We therefore reject 
India's  contention that "the fact regarding purchase of iron ore by government or a related party has no 
bearing on the present proceeding" and that "[t]he USDOC did not request such information and did not 
disclose this as a reason for rejection of prices listed  in the association price chart". (India's  response to Panel 
question No.  31). The inability to identify who the transacting parties were, including the purchasers, was 
explicitly referred to in the Preliminary Determination, and the GOI responded to this in its case brief, e.g.: 
"[f]irst, the Department admits that the names of at least three companies are provided in the document and the 
document evidences close to 11  transactions in the name of these three entities. … Fourth, even for the other 
entries i n the said document where the names of the sellers are not mentioned, we submit that nothing in the 
SCM Agreement , Article  14(d) or US  law mandates that only actual sale transactions with the names of the 
transacting parties are to be used" . (Case brief, ( Exhibit IND -57), p. 32). The GOI did not provide information on 
the purchasers.  
321 Final Determination, (Exhibit IND -60), p.  10. 
322 India's  second written submission, para.  124(e).  
323 India's  first written submission, para.  121. See also  comments on the United  States'  response to 
Panel question No.  26. 
324 India's  response to Panel question No.  51. Accordingly, India has not claimed that the USDOC had 
insufficient evidence before it to construe the association price chart.  
325 India's  first written submission , paras.  119 and 121.  
326 India's  first written submission , paras.  119-124. 
327 India's  first written submission, paras.  122-124. 
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  7.139.   The United  States acknowledges that  the USDOC's  determination "inadvertently stated that 
the association chart did not include whether the destination was domestic and export, and had 
intended to include this observation with respect to the price quote".328 The United  States also 
acknowledges  that the finding that the Tata price quote failed to identify the purchaser was 
"inadvertently placed", and was instead intended to refer to the association chart.329 However, the 
United  States points to the "totality of circumstantial evidence" in respect of these factors.330 
7.140.   As we have explained above331, price quotes, estimates and "notional" prices may not be 
indicative of "market -determined" prices because they may not represent the direct result of an 
interaction between market forces or because they are u nfinalized and may change through a 
process of negotiation between a buyer and seller. We therefore considered it permissible under 
Article  14(d) for the USDOC to have required additional information in order to be satisfied that such 
prices are nonetheles s reliable and market -determined. This included information on the destination 
of the transaction (domestic or for export), the identities of the transacting parties, and the terms 
of sale. We disagree with India to the extent it contends that these detail s are irrelevant.332 On the 
contrary, identifying whether a transaction is domestic or for export is essential to understanding 
whether the transaction reflects an in -country price. Likewise, identifying the transacting parties can 
be important to ensuring t hat the price is reliably market -determined in a context where it is known 
that "public bodies" are participating in a market and also where it is known that the same entity 
could be both buying and selling iron ore .333 It is also self -evident that an unders tanding of the terms 
of sale of a transaction can shed light on whether those terms are market -determined.  The text of 
Article 14(d) of the SCM Agreement makes clear that the "adequacy of remuneration shall be 
determined in relation to prevailing market co nditions for the good or service in question in the 
country of provision or purchase ( including price, quality, availability, marketability, transportation 
and other conditions of purchase or sale )".334 
7.141.   We accept India's  argument that there were a number of deficiencies in the 
USDOC's  assessment of these factors. The United  States acknowledges this. In respect of the 
association price chart, however, we have already concluded that its pricing data could not be 
disaggregated to reveal whether it was based on t ransactions that were market -determined, nor to 
match the POI.335 Our conclusion in that regard was based on India's  own explanation of what the 
figures in the association price chart represent. Therefore, we cannot impugn the USDOC for 
deficiencies that wer e ultimately immaterial to ascertaining whether the association price chart 
reliably evinced market -determined prices.  
7.142.   Turning to the Tata price quote , we likewise accept India's  argument that there were a 
number of deficiencies in the USDOC's  assessment of these factors, but again they were immaterial. 
The evidence shows unambiguously that the prices reflected in this evidence were not yet finalized 
and potentially subject to continuing negotiation: " Sub[ject]: Revision in price  … We would like 
to inform you that to align with the market price, we have revised the rate of sized iron ore  … All 
other terms and conditions will remain unchanged  … Please acknowledge and confirm acceptance of 
the same ".336 The plain text of this evidence shows that the price was o nly an offer by the seller, 
which had not yet been accepted by the putative buyer. The deficiencies identified by India in the 
USDOC's  assessment do not alter the clear implication that this price could not yet be said to be 
"market determined", that is, i t did not yet reflect the interaction between forces of supply and 
demand to yield a final transaction price. It was therefore permissible for the USDOC to reject this 
 
328 United  States'  first written submission, fn  451. 
329 United  States'  first written submission, fn  468. 
330 United  States'  first writt en submission, paras.  279-280. 
331 See above para. 7.120 . 
332 India's  first written submission, paras.  123-124. 
333 The record evidence from the original proceedings showe d that Tata was both a buyer and seller of 
iron ore, and thus its sales reflected in the association price chart could give rise to a plausible possibility of 
related -party transactions whose reliability an investigating authority may wish to test for benc hmarking 
purposes. ( Panel Report, US – Carbon Steel (India ), para. 7.148). There was also evidence in the original 
proceedings that MML – an entity that the USDOC found to be a "public body" (ibid. fn 332) – purchased iron 
ore (ibid. para.  7.459).  
334 Emphasis added.  
335 See above para. 7.135 . 
336 Tata verification exhibits,  (Exhibit IND-36), p.  23. (emphasis added)  
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  evidence as not indicative of " prevailing  market conditions" under Article  14(d) of the 
SCM Agreement.  
7.143.   For the foregoing reasons, India has not demonstrated that the USDOC acted inconsistently 
with Article  14(d) of the SCM  Agreement on the basis that  its treatment of the terms of sale, the 
identities of the transacting parties, a nd the destination for the transaction, was not based on an 
objective examination.337 
7.3.5   Whether the USDOC erred by failing to explain adequately the reasons for rejecting 
the Tata price quote on the basis of disclosing confidential data  
7.144.   India advances two alte rnative arguments that the USDOC erred by rejecting the Tata price 
quote. First, India contends that there was no basis for declining to use this data despite  its 
proprietary designation.338 Alternatively, India submits that the USDOC was not bound under the  
SCM Agreement to accept Tata's  claim of confidentiality, and should rather have examined whether 
Tata's  request was warranted and sought further information in this regard.339 
7.145.   We have already found that the USDOC had sufficient alternative grounds to reject  the Tata 
price quote  as a benchmarking source.340 We therefore do not consider it necessary to the effective 
resolution of this dispute to address India's  above -mentioned arguments, nor the 
United  States'  arguments in rebuttal and objection under Article  6.2 of the DSU.  
7.3.6   Whether the USDOC erred by failing to explain adequately its reliance on the 
prices  reported in the Tex  Report as the appropriate benchmark  
7.146.   India argues that the Tex  Report does not reflect "actual" prices341, and that additional 
explanation by  the USDOC was required to account for prima facie  similarities between the 
Tex Report – whose pricing data the USDOC accepted – and the association price chart, which was 
rejected.342  
7.147.   The similarities between these pieces of evidence are clear343: one docume nt is entitled 
"Prices of Iron Ore", the other "Iron Ore Prices"; one document designated certain prices as 
"Provisional", the other is headed "Price Negotiations"; both documents appear to lack 
comprehensive details on terms of sale344 and the identity of p urchasers.  
7.148.   The USDOC did not discuss these prima facie  similarities in its explanation, possibly because 
these aspects of the Tex  Report were not called into question during the reinvestigation.345 Rather, 
in its Final Determination, the USDOC concluded tha t "in the absence of suitable Tier I prices, we 
correctly derived a benchmark in the Other Issues Preliminary Determination using Tier II prices 
from Australia, as listed in the Tex Report ".346 The USDOC cited the 2004, 2006, and 2007 
final results in suppor t of that conclusion. These determinations indicate that GOI officials gave 
 
337 India's  first written submission , paras.  119-124. 
338 India's  first written submission, paras.  126-129. 
339 India's  first written submission, para.  130. 
340 See above para. 7.142 . 
341 India's  first written submission, para.  116. See also  second written submission, para. 127. 
342 India's  first written submission, para.  117. 
343 Indeed, the Panel recognized these prima facie  similarities in the original proceedings: Panel  Report, 
US – Carbon Steel (India) , para.  7.162: "we are not persuaded that the price charts submitted  by the GOI and 
Tata should be treated any differently  [to the Tex  Report ], particularly since they are similarly entitled 'Prices 
of Iron Ore '". (emphasis added)  
344 That is, beyond e.g. the designation as "f.o.b." or " ex mine ". 
345 Case brief, (Exhibit IND -57), p. 27. The only issue raised regarding the Tex  Report was as follows: 
"[w]e submit that even a price quote can be used as an appropriate in -country benchmark under both the 
SCM Agreement  and US law. To the extent the Department is applying prices as re flected in the Tex  Reports as 
appropriate benchmarks, the Department cannot apply a doublestandard". (Ibid. p. 33). The GOI did not 
elaborate on this point in its case brief. This was also not raised by the GOI in its hearing. ( Transcript of the 
hearing be fore the USDOC, ( Exhibit  IND-59)). India now suggests that the reference to a "doublestandard" in 
the case brief demonstrates that "India argued that Tex Report price is also not actual transaction prices" . 
(India's response to Panel question No. 33). In our view, this is not sufficiently clear, as demonstrated by this 
quote from the case brief which was the only passage where an issue was raised regarding the Tex Report.  
346 Final Determination, (Exhibit IND -60), p.  12. (emphasis original)  
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  evidence that the Tex  Report listed Indian prices from "concluded negotiations"347, and that 
the reported Australian price s flowed from "concluded talks".348 Although the USDOC  indicated that 
the Tex  Report "reports on world -wide price negotiations  for high -grade iron ore"349, it understood 
the reported prices to be " negotiated  iron ore prices"350, as opposed to prices subject to continuing 
negotiation.351 
7.149.   Thus, the USDOC clearly took  the view that the Tex  Report prices pertain to actual, 
completed sales transactions. Not only was this understanding not called into question in the 
underlying investigation (nor in the reinvestigation), but the GOI and other producers appeared to 
treat t he Tex Report evidence in the underlying investigation as a reliable indicator of 
market -determined prices.352 For instance, the record evidence demonstrates that, in response to a 
request from the USDOC for "a copy of any price lists the GOI or the NMDC use s to base its 
negotiations on prices", the GOI responded that "[t]he price of NMDC iron ore during 2005 -06 
onwards are decided based on the FOB prices of NMDC iron ore as appearing in the Tex  Report".353  
7.150.   India now argues that the "GOI submitted Tex Report p rices in the questionnaire because 
the USDOC requested Tex Report price information" and "the fact that the GOI responded to the 
specific question of the USDOC to provide Tex Report price neither prejudices GOI's  stand that such 
price information was 'not actual transaction prices'  nor enhances its reliability as 'market 
determined price'".354 However, the USDOC also requested that "[i]f you  … have questions 
concerning the Tex Report , please contact the officials in charge"355, to which the GOI responded 
withou t questions356, but by indicating that "[t]he NMDC iron ore lump and fines prices published in 
the Tex  Report are f.o.b. prices in US $ per DLT (Dry long ton)".357 Other record evidence 
demonstrated that the Tex  Report data was relied upon by the GOI, NMDC, an d exporters as 
"function[ing] as a guideline for international iron ore prices".358 Accordingly, unlike the "non -actual" 
character of the Tata price quote  and the association price chart, additional details to ascertain the 
nature or veracity of the Tex  Report data do not appear to have been warranted.  
7.151.   Finally, we note that India's  argument regarding the Tex Report is premised on an incorrect 
understanding of the USDOC's  reason for rejecting the domestic pricing information. 
India's  argument is premised on it s understanding that the "sole reason" for rejecting the domestic 
pricing information was because it was not "actual".359 However, we found earlier that the correct 
understanding is that the USDOC rejected the domestic pricing information on the basis of whe ther 
 
347 Preliminary results of administrative review (2004), (Exhibit IND -14), p.  1517.  
348 Preliminary results of administrative review (2004), (Exhibit IND -14), p.  1517. In this respect, we 
agree with United  States'  comments on India's  response to Panel question No. 36. 
349 Final results of administrative review (2007), (Exhibit IND -43), p.  15. (emphasis added)  
350 Preliminary results of administrative review (2004), (Exhibit IND -14), fn  4. (emphasis added)  
351 Final results of administrative revi ew (2004), (Exhibit IND -15), pp.  4 and 7.  
352 It appears that the GOI itself referred to the Tex  Report data as reflecting "[i] ron Ore prices for 
lumps and fines from the Bailadila and Donimalai mines for the periods 2005 -2006 and 2006 -2007". 
(Essar's  supple mental questionnaire response, 2006 administrative review , (Exhibit IND -30), p.  6), and that 
exporters submitted this data as " prices for both Bailadil a and Donimalai lumps and fines". ( Ibid. and 
Essar 's supplemen tal questionnaire response, 2007  administra tive review , (Exhibit  IND-41)). Tata's  objections 
to the Tex  Report related to technical differences and terms of sale affecting price comparability as opposed to 
any reliability issues. ( Tata's supplemental questionnaire response, 2006 administrative revi ew, (Exhibit  
IND-33), p.  6). See also GOI's  questionnaire response, 2006 administrative review,  (Exhibit IND -18), 
pp. 40-41). In this respect, we agree with United  States'  response s to Panel question Nos. 33, 34, 35, and 36, 
paras.  74-80. 
353 GOI's  questionnaire response, 2006 administrative review, (Exhibit IND -18), p.  43. 
354 India's  comments on the United  States'  response to Panel question No. 36. 
355 GOI's  questionnaire response, 2006 administrative review, (Exhibit IND -18), p.  40. 
(emphasis  original)  
356 United  States'  response to Panel question Nos. 33, 34, 35, and 36, paras.  74-80; India's response to 
Panel question No. 34. Based on the plain text of the USDOC's  request, we disagree with India that this 
request was limited in scope to " if the G OI was not aware about 'Tex Report ' or what it exactly means or how 
to obtain Tex Report or how to report such price information in the questionnaire response etc to allow the GOI 
to respond effectively ". (India's response to Panel question No. 34). 
357 GOI's questionnaire response, 2006 administrative review, (Exhibit IND -18), pp.  40-41. (emphasis 
original)  
358 Verification  Report , (Exhibit USA-3), pp. 6-7. 
359 India's  first written submission, paras.  113 and 114. 
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  the data was reliable as evincing market -determined prices.360 Thus, India is misplaced in contending 
that whether the Tex Report prices were "actual" or "non -actual" is determinative.361 Rather, the 
key question is whether the USDOC had a reasonable basi s for inferring that the Tex Report data 
reliably evinced market -determined prices. In view of the material set out above362, including how 
the GOI and interested parties appeared to treat the Tex Report in the underlying investigations, we 
consider that the  USDOC did have a reasonable basis for drawing such an inference. By contrast, as 
we found earlier363, the USDOC had a reasonable basis for concluding in respect of the association 
price chart that "these provisional or estimated prices are not reliable for benchmarking purposes" .364 
Accordingly, India has not demonstrated that the USDOC failed to make an objective assessment by 
failing to explain why the Tex Report is more appropriate than the domestic pricing information 
despite being affected by the same iss ues that affected the domestic pricing information.365 
7.152.   In view of this conclusion, we do not consider it necessary to address the 
United  States'  objection under Article  21.5 of the DSU to India's  submissions on the Tex  Report, nor 
India's  response in that regard  (including India's argument that this allegation of error does not 
comprise a separate claim) .366 
7.3.7   Whether the USDOC erred by rejecting NMDC export prices in favour of 
Australian/Brazilian world prices  
7.153.   India argues that, based on the Appellate  Body's  ruling in the original proceedings, the 
USDOC was permitted only to reject the NMDC's  export price on the basis of positive evidence rather 
than an inference that using the NMDC's export price  would result i n using the financial contribution 
itself as the benchmark.367 Further, India argues that the USDOC failed to properly explain why it 
relied on the NMDC's  export price in the 2004 administrative review , but rejected it in the 2006 
administrative review .368 
7.154.   The United  States disagrees with India's  understanding of the Appellate  Body's  findings, and 
argues that the USDOC was permitted to exclude NMDC export prices on the basis that these prices 
emanated from the same government -related entity at issue.369 The Unite d States also argues that 
the USDOC provided additional analysis demonstrating that the NMDC export price was distorted by 
GOI involvement, namely the GOI's  export restraints.370 Finally, the United  States submits that the 
USDOC adequately explained that its  change in approach between the 2004 and 2006 reviews 
regarding the NMDC export price was a refinement in approach rather than a change in 
methodology.371 
 
360 See above para. 7.119 . 
361 India's response to Panel question No. 36; first written submission, para.  116; and second written 
submission, para.  127. 
362 See above paras. 7.148 -7.150 . 
363 See above para.  7.135 . 
364 Final Determination, (Exhibit IND -60), p.  10. 
365 India's  first written submission, paras.  114-117. 
366 The United States made an Article 21.5 objection against India's claim that the Tex Report prices 
exhibited the same deficiencies as the domestic pricing information. The United States notes that India made 
this same argument before the Panel in the original proceedings, and that the Panel offered observations on 
that argument ( United  States'  first writte n submission, paras.  294-296). The Panel's observations in that 
regard were declared by the Appellate Body to be "alternative findings" that were "moot and of no legal effect", 
thus resulting in no DSB ruling on the merits of these arguments ( United States ' first written submission, 
para. 295). India responded, inter alia , that its submissions in this regarded did not reflect a separate claim, 
but instead comprised arguments "to substantiate its claim that the Section 129 Determination rejecting the 
in-country price information is not in compliance with the recommendations and rulings of the DSB and is also 
not consistent with the chapeau of Article 14 and Article 14(d) of the SCM Agreement". (India's second written 
submission, para. 149).  
367 India's  first wr itten submission, paras.  141-142. See also second written submission, 
paras.  165-173. 
368 India's  first written submission, paras.  152 and 154.  
369 United  States'  first written submission, paras.  301-303 and 312. See also second written submission, 
paras.  162-165. 
370 United  States'  first written submission, paras.  304 and 313. See also second written submission, 
paras.  169-171. 
371 United  States'  first written submission, para.  319. 
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  7.155.   We begin by setting out our understanding of the USDOC's  explanation for rejecting the 
NMDC's  export pr ices as a benchmarking source. We then set out our understanding of the 
circumstances under which it is legally permissible to reject a putative public body's  export prices 
as a benchmark under Article  14(d) of the SCM  Agreement. We follow this with our ev aluation of  the 
USDOC's  explanation in light of our understanding of Article  14(d).  
7.156.   In the Preliminary Determination, the USDOC determined that the NMDC constituted a 
"public body", and therefore that " using the NMDC prices at issue (e.g. the iron ore pric es the NMDC 
charged to Japanese buyers during the POR) would be unreliable and would result in an inadequate 
comparison."372 The USDOC recogni zed that the Appellate  Body found in the original proceedings 
that investigating authorities cannot presumptively ex clude the prices of government -related entities 
from the consideration of appropriate benchmarks under Article  14(d) of the SCM  Agreement.373 
However, the USDOC understood the Appellate  Body's  finding in this regard to be limited to 
government -related entiti es that were not providing the financial contribution at issue, and thus 
excluded the very "public body" under investigation.374 
7.157.   In its Final Determination, in response to the GOI's  case brief, the USDOC engaged in further 
discussion of the Appellate  Body's  findings in the original proceedings. It reaffirmed its conclusion 
that the Appellate  Body's  reasoning supported excluding the prices of the NMDC as the putative 
"public body" at issue.375 The USDOC also elaborated upon how its finding that the NMDC constitu ted 
a "public body" justified its determination to exclude its export prices, explaining that " [t]he manner 
in which the NMDC is owned and controlled further supports the Department's  decision not  use its 
export prices as the basis for the Tier II benchmark".376 For instance, the USDOC noted how the GOI 
sought to exercise "meaningful control" over the NMDC through export restrictions.377 The USDOC 
also noted that the NMDC's  Board of Directors – a majority of whom it had found to be appointed by 
GOI bodi es – "were directly involved in the price negotiations with potential foreign buyers", and 
that "GOI appointed directors at the NMDC … set export prices".378 The USDOC also referred to its 
"public body" determination in finding that "the NMDC's  export prices  are set with GOI policy 
considerations".379 In summary, the USDOC determined not to use the NMDC's  export prices as a 
potential benchmarking source because the NMDC constituted a "public body", and therefore that 
"using the NMDC prices at issue (e.g. the ir on ore prices the NMDC charged to Japanese buyers 
during the POR) would be unreliable and would result in an inadequate comparison"380, as evidenced 
by the grounds on which the USDOC reached its "public body" determination.  
7.158.    We turn now to the circumstances  in which it is permissible for an investigating authority 
to reject the export prices of the putative "public body" as a benchmarking source under 
Article  14(d). India and the United  States point to differing aspects of the Appellate  Body's  Report 
in the original proceedings to argue that the Appellate  Body's  findings support381 – or, alternatively, 
do not support382 – the use of the NMDC's  export prices in identifying a benchmark under 
 
372 Preliminary Determination, (Exhibit IND -55), p.  11. 
373 Preliminary Determination, (Exhibit IND -55), pp.  10 and 12.  
374 Preliminary Determination, (Exhibit IND -55), pp.  11-12. The USDOC quoted a series of passages 
from the Appellate  Body Report in the original proceedings, one of which was: "[f] or example, prices on record 
of government -related entities other than the entity providing the financial contribution at issue  also need to 
be considered to assess whether  they are market determined and can therefore form part of a proper 
benchmark ". (Ibid. p.  11 (quoting Appellate  Body Report, US – Carbon Steel (India) , para. 4.154 ) (underlining 
added)).  
375 Final Determination, (Exhibit IND -60), p.  14. 
376 Final Determination, (Exhibit IND -60), p.  14. 
377 Final Determination, (Exhibit IND -60), p.  15. 
378 Final Determination, (Exhibit IND -60), pp. 15-16. 
379 Final Determination, (Exhibit IND -60), p.  16. 
380 Preliminary Determination, (Exhibit IND -55), p.  11. 
381 India's  first written submission, para.  140: "[t] he USDOC has ignored the explicit  observation of the 
Appellate  Body that unreliability of a price as a benchmark must be proven on the basis of evidence by the 
investigating authority " (referring to Appellate  Body Report, US – Carbon Steel (India) , para. 4.287 ). 
382 United  States'  second written submission, section entitled " The Appellate  Body's  Report Supports The 
USDOC 's Determination To Not Use The NMDC 's Export Prices ", paras.  162-165 (referring to Appellate  Body 
Report, US – Carbon Steel (India) , para. 4.166 and fn 770).  
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  Article  14(d). In our view, the Appellate  Body did not address this questi on directly in the original 
proceedings.383 We therefore address this question afresh.  
7.159.   We note that, by the time an investigating authority is called upon to examine a public 
body's  export  prices as a potential benchmarking source, it has already moved to ou t-of-country 
benchmarks. This is because, if reliable and market -determined data from in -country transactions 
were available, there would be no need to rely on a public body's  export  prices. If there is positive 
record evidence in a given case that the put ative "public body's" export prices are reliable and 
market -determined despite emanating from the "public body" at issue384, it would not be 
unreasonable for an investigating authority to consider those prices amongst the other available 
sources of out -of-country benchmarks. However, if the assessment of whether an entity is a "public 
body" has revealed evidence that its participation in export markets is being influenced by 
governmental policy considerations as opposed to commercial considerations, it would be reasonable 
for an investigating authority to disregard that entity's  prices in favour of other out -of-country 
benchmarks.  
7.160.   More generally, in the absence of any positive evidence that the putative public body's  export 
prices are reliable and market -determined, we consider it reasonable for an investigating authority 
to infer that the relationship between price and domestic cost pressures may no longer be reliable 
for that entity. This is because, when the "financial contribution" at issue involves the pro vision of 
goods by a "public body", the putative "public body" might be selling goods domestically at below 
market rates, which could suggest that its domestic pricing strategy is not being determined 
exclusively by market forces. In such circumstances, co ntrary to preferring the export prices of that 
"public body", it would seem reasonable to consider that – absent record evidence to the contrary – 
other  out-of-country evidence would be preferable. This is because the reliability of such other 
evidence wou ld be untainted by non -commercial pricing strategies of "public bodies" selling 
domestically at below market rates.  
7.161.   We now evaluate the USDOC's  explanation in  light of this understanding of the circumstances 
in which Article  14(d) permits investigating aut horities to reject the export prices of a putative 
"public body". As part of our assessment of India's  claims under Article  1.1(a)(1) of the 
SCM Agreement, we found that the USDOC had  a sufficient evidentiary basis for concluding that the 
"export restricti ons in place for high -grade iron ore" contradicted the GOI's  assertion that the 
NMDC's  prices were set "by the supply and demand of the market", and for instead inferring from 
these export restrictions that "the conditions of the market are being influence d by the GOI's  policy 
considerations and actions".385 With that in mind, it was clearly reasonable for the USDOC to 
conclude in light of its "public body" determination that " using the NMDC prices at issue (e.g. the 
iron ore prices the NMDC charged to Japane se buyers during the POR) would be unreliable and would 
result in an inadequate comparison".386 Indeed, as we have already explained387, the USDOC 
recounted much of the evidence from its "public body" finding in its Final Determination rejecting 
the NMDC's  export prices as a benchmarking source.388  
7.162.   India contends that the USDOC erroneously concluded that the NMDC's  export price to Japan 
was the "financial contribution" at issue, and thus its reliance on the Appellate  Body's  reasoning was 
 
383 The Appellate  Body explicitly excluded the government -related entity under examination from its 
general remarks on inclusion/exclusion of government prices and the principle that " whether a price may be 
relied upon for benchmarking purposes under Article  14(d) is not a function of its source ". 
(Appellate  Body Report, US – Carbon Steel (India) , paras.  4.154 and 4.166 -4.167, and fn  770). Also, the 
Appellate  Body's  general remark that investigating authorities " can[not] presume  that the export price set by a 
government pr ovider is inherently unreliable" but inst ead "[t] his must be proven on the basis of … positive 
evidence on the record" (ibid. para.  4.287 (emphasis original)), pertains to a presumption relating to 
governmental entities generally, as opposed to the specific entity under investigation, and hence d oes not 
resolve whether it is sufficient to disregard an entity's  export price on the basis that it is the entity under 
examination.  
384 This could be through evidence that, e.g. the export price is pegged to international benchmarks that 
are reliable and ma rket-determined.  
385 See above section 7.2.6. 
386 Preliminary Determination, (Exhibit IND -55), p.  11. 
387 See above para. 7.157 . 
388 See also United  States'  first written submission, para.  315; second written submission, para.  167. 
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  misplaced.389 We disagree. As stated above390, we do not consider that the Appellate  Body has 
expressed a view on the specific situation of the export prices of an entity found to be a "public 
body". Moreover, the USDOC's  focus was on the reliability of the entity engaging in the transaction, 
not the transaction itself. For instance, the USDOC quoted the Appellate  Body's  statement that 
"prices on record of government -related entities other than the entity providing the financial 
contribution at issue  also need to be consider ed to assess whether they are market determined and 
can therefore form part of a proper benchmark".391 The focus in the USDOC's  extract of the 
Appellate  Body's reasoning is clearly on the reliability of the entity .392 We thus do not agree with 
India that the U SDOC erroneously relied on the Appellate  Body's  reasoning by treating the 
NMDC's  sales to Japan as the "financial contribution" at issue.  
7.163.   India also contends that "[t]he USDOC has ignored the explicit observation of the 
Appellate  Body that unreliability of  a price as a benchmark must be proven on the basis of evidence 
by the investigating authority".393 Again, we disagree. As we have explained above394, the USDOC 
recounted evidence from its "public body" determination which indicated that the 
NMDC's  participati on in export markets was influenced by GOI policy considerations. For the same 
reason, we disagree with India's  contention that "USDOC has ignored the observation of the 
Appellate  Body that whether a price may be relied upon for benchmarking purposes under  
Article  14(d) is not a function of its source but, rather, whether it is a market -determined price 
reflective of prevailing market conditions".395 As part of its "public body" determination, and as we 
have reviewed above, the USDOC examined the NMDC's  participation in export markets and found 
it to be influenced by GOI policy considerations as opposed to unfettered participations in a 
market.396 We likewise reject India's  contention that "there is no evidence presented by the USDOC 
that directly leads to the c onclusion that NMDC export prices were 'set with the GOI policy 
considerations'."397 We have already examined such evidence in detail. As our examination showed, 
India is incorrect to suggest that "[t]he USDOC has not demonstrated based on evidence as to how  
such export restriction influenced the price of exports of iron ore so as to make it unviable as a 
benchmark".398 Our examination also showed that India  is incorrect to suggest that the USDOC did 
not have  a sufficient basis for inferring that the GOI was no t involved in the NMDC's  export price399, 
and that the NMDC's  export price was determined by commercial considerations.400 
7.164.    Finally, we address India's  argument that the USDOC has not explained adequately why the 
USDOC accepted the NMDC's  export price in the 2 004 review, but rejected it in subsequent 
reviews.401 We note that the Appellate  Body drew particular attention to this factor in its finding of 
error in the original proceedings: "[w]e do not see that the USDOC provided in its determination a 
reasoned and a dequate explanation as to why the benchmark data that it relied on, namely, world 
market prices from Australia and Brazil, is more appropriate  than the benchmark data that it had 
previously relied on but subsequently excluded , namely, the NMDC's  export prices at issue ".402 In 
 
389 India's  first written submission, paras.  138 and 141.  
390 See above para. 7.158 . 
391 Preliminary Determination, (Exhibit IND -55), p.  11 (quoting Appellate  Body Report, US – Carbon 
Steel (India) , para. 4.154 (underlining added)).  
392 This should not be taken to  imply that the USDOC's  rejection of the NMDC's  export prices was merely 
a "function of its source" in contradiction to the Appellate  Body's  statement that "whether a price may be relied 
upon for benchmarking purposes under Article  14(d) is not a function of its source but, rather, whether it is a 
market -determined price reflective of prevailing market conditions in the country of provision". ( Appellate  Body 
Report, US – Carbon Steel (India) , para. 4.154). Rather, we recall that this finding was a stepping stone to the 
USDOC's  conclusion that " we find that the prices from the NMDC do not represent prevailing market conditions 
in India because the conditions of the market are being influenced by the GOI 's policy  considerations and 
actions, as describe above, rather than by the activity of unfettered  participants in a private market " (Final 
Determination, (Exhibit IND -60), p.  16), which correlates to this statement of the Appellate  Body.  
393 India's  first written submission, para.  140. 
394 See above para. 7.157 . 
395 India's  first written submission, para.  145. 
396 See above paras. 7.47, 7.84, and 7.89. See also United States'  first written submission, para.  318. 
397 India's  first written submission, para.  149. 
398 India's  first written submission, para.  149; second written submission, paras. 186 -190. See above 
paras. 7.54 and 7.85. 
399 India's  second written submission, para.  177. See also the evidence of the GOI's  involvement in 
setting the export price at GOI's  questionnaire response, 2006 administrative review,  (Exhibit IND -18), p.  42. 
400 India's  second written submission, paras.  175 and 181 -184. 
401 India's  second written submission, paras.  192-199. 
402 Appellate  Body Report, US – Carbon Steel (India) , para.  4.290. (emphasis added)  
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  the reinvestigation, the USDOC explained that the failure to exclude the NMDC's  export prices in the 
2004 administrative review  was because "no party had squarely addressed the issue of whether it 
was appropriate for the  Department to include export prices charged by the NMDC in the calculation 
of the Tier II benchmark", but that "further consideration" of the matter in subsequent reviews had 
revealed that "the NMDC export prices contained in the Tex  Report constituted pr ices from the very 
provider of the financial contribution at issue".403 We consider it reasonable for the USDOC to have 
corrected an error from an earlier investigation by excluding the NMDC's  export price, particularly 
in light of the evidence regarding the  influence of the GOI on the NMDC's  participation in export 
markets. In our view, this change in approach did not reflect a radical departure from the 
USDOC's  previous practice or methodology, and did not necessitate any additional justification by 
the USD OC beyond the explanation that it provided.404 
7.165.   In light of the above, we conclude that India has not demonstrated that the USDOC acted 
inconsistently with Article  14(d) of the SCM  Agreement by rejecting the NMDC's  export prices as a 
benchmarking source.  
7.3.8   Conc lusion  
7.166.   We have evaluated India's  allegations of error in relation to the three potential sources of 
benchmarking data that were rejected by the USDOC. In respect of each allegation, we found that 
India has not demonstrated that the USDOC acted inconsisten tly with Article  14(d) of the 
SCM Agreement. Our overall conclusion, therefore, is that India has not demonstrated that the 
USDOC acted inconsistently with Article  14(d) of the SCM  Agreement. In view of that conclusion, we 
do not consider it necessary for the effective resolution of this dispute to address India's  claims 
under the chapeau  of Article  14 of the SCM  Agreement.  
7.4  Benefit: India's  claims under Article  14(b) of the SCM  Agreement  
7.167.   India claims that the USDOC acted inconsistently with Article  14(b) of  the SCM  Agreement 
by failing to account for the borrower's  cost in obtaining loans under the Steel Development Fund 
(SDF) programme.405 The USDOC did not reconsider the matter of borrower's  costs under the SDF 
programme in its reinvestigation. Rather, India 's challenge pertains to the USDOC's  explanation in 
the 2006 administrative review .406 The United  States objects that India's  claim in this regard is 
outside of the scope of these compliance proceedings under Article  21.5 of the DSU.407  
7.168.   We begin our evaluatio n of India's  claim by assessing the United  States'  objection. We first 
set out the relevant procedural background to India's  claim, before explaining our understanding of 
Article  21.5 as applicable to the United  States'  objection. We then apply that unders tanding to the 
United  States'  objection.  
7.169.   The relevant procedural background is as follows. In the original proceedings, the Panel 
rejected India's  factual claim "that SDF levies should have been treated as the producers'  own 
funds", as well as India's  legal claim that "investigating authorities are required to take account of 
the costs incurred by recipients in participating in the scheme under which the loans are provided".408 
The Appellate  Body overturned the Panel's  finding on India's  legal claim, and held  instead that 
Article  14(b) requires an examination of "the total cost of the investigated loan … to the loan 
recipient".409 The Appellate  Body did not consider it necessary to address India's  challenge under 
Article  11 of the DSU against the Panel's  factual  finding on the SDF levies410, and attempted but 
 
403 Final Determination, (Exhibit IND -60), p.  16. 
404 In any event, it is questionable whether a change in metho dology can, in and of itself, be the basis 
for a violation of Article  14(d). (See, by analogy, Panel  Report, EU – Footwear (China) , para.  7.858) . 
405 India's  first written submission, para.  174. 
406 India's  first written submission, para.  166; second written s ubmission, paras.  203 and 208.  
407 United  States'  first written submission, paras.  323-327. 
408 Panel Report, US – Carbon Steel (India) , para. 7.311.  
409 Appellate  Body Report, US – Carbon Steel (India) , para. 4.347.  
410 Appellate  Body Report, US – Carbon Steel (India) , paras.  2.104 (and 4.349): " India further contends 
that the Panel acted inconsistently with Article  11 of the DSU in disregarding material evidence on the Panel 
record relating to the manner in which consum ers paid for increased levies on steel products." The Appellate 
Body did not exercise judicial economy, but instead rejected that claim: see ibid, para.  5.1(i).  
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  ultimately declined to complete the legal analysis.411 There was thus no DSB  ruling  of a violation by 
the United  States on India's  claim in this regard in the original proceedings, and the USDOC did not 
re-evalu ate the SDF loan/levies in its reinvestigation.412 Despite the matter not being re -evaluated 
by the USDOC in its Preliminary Determination, the GOI  did not raise it in its case brief in response. 
Indeed, no interested party raised this matter in the USDOC's  reinvestigation.413 India now seeks to 
make essentially the same claim in the present compliance proceedings that it made in the original 
proceedin gs, namely that the USDOC erred under Article  14(b) of the SCM  Agreement by failing to 
account of the borrower's  cost in obtaining loans under the SDF programme.414 
7.170.   We turn now to our understanding of Article  21.5 of the DSU as relevant to the present 
object ion. As we have elaborated earlier415, compliance proceedings under Article  21.5 cannot be 
used to "re -open" issues that were decided on the merits in the original proceedings.416 This would 
disrupt the finality of DSB  rulings, contrary to Article  17.14 of the  DSU.417 But claims against aspects 
of a measure that are not decided on the merits in the original proceedings are not covered by 
DSB rulings and thus can be reasserted in compliance proceedings to the extent that this would not 
disrupt the finality of a DSB ruling .418 For instance, this can occur  when the  Appellate  Body reverses 
a panel's  findings but does not complete the legal analysis, resulting in no DSB  ruling.419 
7.171.   We now apply this understanding of the scope of Article  21.5 of the DSU to the 
United  States'  objection against India's  claim. The United  States'  case is that there was no finding 
of inconsistency in the original proceedings relating to the USDOC's  finding of benefit conferred by 
the SDF programme in the 2006 administrative review , and thus no DSB  ruling with which the 
United  States was required to comply.420 India responds that " there is a clear finding of the 
Appellate  Body that loans obtained by the recipients cannot be determined to confer benefit in 
accordance with Article  14(b) without taking i nto account the costs incurred by such recipient in 
obtaining the loan ", and the United  States was " required to implement the recommendation and 
ruling of the DSB  emanating from such finding ".421 In view of the parties'  disagreement in this 
regard, we are ca lled upon to ascertain what was adopted by the DSB  in respect of India's  claim on 
this matter in the original proceedings. In its "Findings and Conclusions" section, the Appellate  Body 
stated:  
For the reasons set out in this Report, the Appellate  Body:  
… 
d. with respect to the Panel's  "as applied" findings regarding benefit under Article  14 of 
the SCM  Agreement:  
v. reverses  the Panel's  finding, in paragraph 7.313 of the Panel Report, rejecting 
India's  claim as it relates to the USDOC's  determination that loans provided under the 
 
411 Appellate  Body Report, US – Carbon Steel (India) , para.  4.353.  
412 Preliminary Determination, ( Exhibit IND -55); Final Determination, (Exhibit IND -60). Nor did the GOI 
raise this during the reinvestigation. (Case brief, (Exhibit IND -57); Transcript of the hearing before the USDOC,  
(Exhibit IND -59)). 
413 India's response to Panel question No. 40. We do not suggest that raising a matter during a 
respondent's  implementation procedure – despite the opportunity to do so – is a determinative factor or a 
prerequisite to being able to reassert a claim in a subsequent compliance proceeding under Article  21.5 of the 
DSU where the dispute concerns a countervail investigation. We note that whether an interested party has 
raised a matter during an investigation has been a relevant consideration in a number of contexts in 
countervail and anti -dumping disputes. (See, e .g. Panel Report s, EC – Countervailing Measures on DRAM 
Chips , para. 7.229 ; EU – Fatty Alcohols (Indonesia) , para.  7.196 ; and Egypt – Steel Rebar , paras.  7.382 and 
7.386).  
414 India's  first written submission, para.  168; Appellate  Body Report, US – Carbon Steel (India) , 
para. 2.104.  
415 See above para. 7.15. 
416 Appellate  Body Report, US – Large Civil Aircraft (2nd complaint) (Article  21.5 – EU), para.  5.21. 
417 Appellate  Body Report, US – Large Civil Aircraft (2nd complaint) (Article  21.5 – EU), para.  5.19. 
418 Appellate  Body Report, US – Large Civil Aircraft (2nd complaint) (Article  21.5 – EU), para. 5.21. 
419 Appellate  Body Report, US – Large Civil Aircraft (2nd complaint) (Article  21.5 – EU), para.  5.20. 
420 United  States'  second written submission, paras.  176 and 180.  
421 India's  second written submission, paras.  203-204. 
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  SDF conferred a benefit within the meaning of Articles  1.1(b) and 14(b) of the 
SCM Agreement, and  finds that it is unable to complete the legal analysis[.]422 
7.172.   Thus, there was no finding that the USDOC had acted inconsistently. However, the "Findings 
and Conclusions" section is not the only portion of the report that is "adopted" by the DSB. Rather, 
the "report" is adopted as a whole pursuant to Article  17.14 of the DSU. Likewise, the "Findings and 
Conclusions" section is qualified by the introductory chapeau  "[f]or the reasons set out in this 
Report". The Appellate  Body's  reason  for reversing the Panel's  finding of inconsistency, as 
articulated in its adopted Report, was due to an error of legal interpretation by the Panel.423 In 
particular, the Appellate Body found that " the Panel improperly excluded consideration of a 
borrower's costs in assessing the cos t of a loan programme to the recipient for purposes of a 
benchmark analysis, and that the Panel therefore erred in finding that Article 14(b) does not require 
the USDOC to take into account the costs incurred by SDF loan recipients in obtaining SDF loans ".424 
The Appellate  Body's  reversal of the Panel's  finding in paragraph 7.313 of the Panel Report425 must 
be read in that context. Although India brought a separate challenge under  Article  11 of the DSU 
against the Panel's  factual finding on the SDF levies426, the Appellate  Body declined to rule on that.427 
Thus, the following factual finding of the Panel was not overturned in the Appellate  Body Report:  
As a factual matter, we do not agree that SDF  levies should have been treated as the 
producers'  own funds. SDF levies were rather collected from consumers, through an 
addition to the steel producers'  ex-works prices, and then remitted directly to the SDF. 
Since the levies were collected from consumer s and always destined for the SDF, steel 
producers would not have been able to obtain interest by investing those funds 
elsewhere.428 
7.173.   The Panel Report was adopted by the DSB  as modified by the Appellate  Body Report429, 
which did not, in turn, modify this factu al finding of the Panel.430 We thus understand that this factual 
finding of the Panel Report was adopted by the DSB, and stands as an adopted aspect of the 
DSB ruling on India's  claim in the original proceedings.431 Our review of the merits of India's  case in 
the present proceedings suggests that India contests the substance of the aforementioned factual 
finding by the Panel.432 Accordingly, there is a real prospect that permitting India's  claim would 
 
422 Appellate  Body Report, US – Carbon Steel (India) , para.  5.1(a)(v). (emphasis original)  
423 Appellate  Body Report, US – Carbon Steel (India) , para.  4.349: "the Panel's  finding regarding 
India's  claim was b ased on an understanding of Article  14(b) that we have found to be in error."  
424 Appellate  Body Report, US – Carbon Steel (India) , para.  4.349.  
425 This states: "[f]or the above reasons, we reject India's  claims against the USDOC's  determinations 
that loans p rovided under the SDF constitute direct transfers of funds by public bodies, and that such loans 
conferred benefit on the recipient steel producers."  (Panel Report, US – Carbon Steel (India) , para.  7.313).  
426 Appellate  Body Report, US – Carbon Steel (India) , para.  2.104: " India further contends that the 
Panel acted inconsistently with Article  11 of the DSU in disregarding material evidence on the Panel record 
relating to the manner in which consumers paid for increased levies on steel products."  
427 Appellate  Body Report, US – Carbon Steel (India) , para.  4.349: "because the Panel's  finding 
regarding India's  claim was based on an understanding of Article  14(b) that we have found to be in error, we 
need not separately consider India's  claim that the Panel acted i nconsistently with Article  11 of the DSU by 
disregarding the significance of certain evidence".  We note that the Appellate  Body discussed this factual 
finding as part of its attempt to complete the legal analysis, including by remarking that " we do not see  how 
the piece of evidence to which the Panel refers supports the conclusion reached by the Panel that the steel 
levies necessarily consist of consumer funds". (Appellate  Body Report, US – Carbon Steel (India) , para.  4.351). 
However, having rejected India' s separate challenge under Article  11 of the DSU on this factual finding (see 
ibid, para. 5.1(i) ), the Appellate  Body did not overturn this factual finding of the Panel.  
428 Panel  Report, US – Carbon Steel (India) , para.  7.311. (fn  omitted)  
429 Action by the Dispute Settlement  Body – Appellate  Body Report and Panel Report – United  States – 
Countervailing Measures on Certain Hot -Rolled Carbon Steel Flat Products from India , WT/DS436/11 . 
430 Article  17.6 of the DSU reads: "[a] n appeal shall be limited to issues of law covered in the panel 
report and legal interpretations developed by the panel. " Outside of the context of an Article  11 DSU challenge 
(Appellate  Body Report, US – Wheat Gluten , paras. 150–151), the Appellate  Body has indicated that a 
panel's  factual finding cannot be modified or overturned on appeal. (Appellate  Body Reports, Australia – 
Salmon , para. 261; EC – Bananas III , paras.  237 and 239). See also United  States'  second writte n submission, 
para. 184. 
431 Article  11 of the DSU foreshadows that a panel's  "assessment of the facts of the case" can comprise 
a "finding" that "will assist the DSB  in making the recommendations or giving the rulings provided for in the 
covered  Agreements" . 
432 India's  first written submission, paras.  171-174. 
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  disrupt the finality of the DSB ruling on this factual finding . We therefore conclude that India's  claim 
under Article  14(b) is not within the scope of the present compliance proceedings under Article  21.5 
of the DSU.  
7.174.   We nonetheless address the merits of India's claim to "provide [a] sufficient factual basis to 
allow the Appellate Body to complete the analysis, if necessary".433 In particular, we reaffirm the 
Panel's  factual finding in the original proceedings, based on the following review of the 
USDOC's  explanation in the 2006 administrative review  and the eviden ce submitted by the GOI . 
7.175.   The evidence submitted by the GOI in the underlying investigation presents the following 
picture. When the SDF was established in 1978, the main producers of steel at the time were subject 
to price controls by the GOI.434 Specificall y, these main steel producers were members of a "Joint 
Plant Committee" (JPC), which the GOI had established in 1971 to determine and fix the prices of 
the main producers of steel.435 In 1978, the GOI authorized the JPC to require its members to add 
an eleme nt to their ex mine  price (already subject to price controls) for the purposes of funding the 
SDF.436 This extra pricing element was compulsory437 and collected by the main steel producers438 
– presumably from consumers (or whoever was paying the price)439 – and remitted to the SDF within 
a 90 day timeframe.440 The SDF served as a mechanis m initiated  by the GOI to provide finance to 
the main steel producers (i.e. members of the JPC).441 
7.176.   Turning to the USDOC's  explanation, it characterized the funds collected by the mai n steel 
producers as "levies paid by steel consumers [that] were indeed compulsory and were designed to 
benefit Indian steel producers".442 The USDOC disagreed that the funds collected by the main 
producers represented their "own funds", but rather that they  "are analogous to tax revenues 
collected from consumers as mandated by the GOI".443 The USDOC specifically found "that the levies 
originated from producer price increases that were mandated and determined by the JPC."444 The 
USDOC noted further that "[i]n ord er to create the SDF, the GOI, acting through the JPC, mandated 
steel price increases which were earmarked for the SDF", and that "[s]teel producers collected this 
 
433 Panel Report, US – Continued Suspension , para. 7.275.  
434 GOI's supplemental questionnaire response 2001, (Exhibit USA -14), pp. 1-2; Indian Supreme Court 
Judgment, (Exhibit IND -8), pp. 342-343. 
435 GOI's  supplemental questionnaire response 2001, (Exhibit USA -14), pp.  1-3. 
436 GOI's supplemental questionnaire response 2001, (Exhibit USA -14), p. 1; Indian Supreme Court 
Judgment, (Exhibit IND -8), pp. 342-343. 
437 GOI's supplemental questionnaire response 20 01, (Exhibit USA -14), p. 3: "[t]he GOI did not require 
the main integrated steel producers to participate in the SDF. The SDF component added to the ex -works 
prices was included in the controlled prices, which applied to the products produced by the main s teel plants as 
members of the JPC" ; and ibid. p.  3: "[t] he SDF component, which was also equally applied to all  the member 
producers " (emphasis added); and Indian Supreme Court Judgment, (Exhibit IND -8), p. 345: "[ i]t were the 
members of the [JPC] … [that] were made bound to add  an element of ex -works price and to remit that 
amount for the constitution of the SDF". (emphasis added)  
438 GOI's  supplemental questionnaire response 2001, (Exhibit USA -14), p.  3:  
The SDF compo nent, which was also equally applied to all the member producers, was separately  
collected as well and then remitted to the Fund.  
…  
From 1978 to 1994, each main integrated steel producer furnished monthly dispatch statements, 
supported by copies of invoi ces, to the JPC. These statements and invoices indicated the amount 
to be collected for the SDF during the month, which had to be deposited into the Fund within 
90 days from the date of dispatch.  
439 Indian Supreme Court Judgment, (Exhibit IND -8), pp. 350-351: agreeing with the proposition that 
the SDF levy comprised part of the "purchase price" paid by the consumer.  
440 GOI's supplemental questionnaire response 2001, (Exhibit USA -14), p. 3. 
441 GOI's  supplemental questionnaire response 2001, (Exhibit USA -14), p.  2 and exhibit 20, p.  1; Indian 
Supreme Court Judgment, (Exhibit IND -8), pp.  338-339 and 345  (quoting another judgment) : "It is the Central 
Government, which exercises control over the SDF though there is no backing of any statutory provision for 
creation of SDF".  
442 2006 Issues and decision memorandum,  (Exhibit IND -38), p.  78. 
443 2006 Issues and decision memorandum,  (Exhibit IND -38), p.  78. See also 2000 Issues and decision 
memorandum, (Exhibit IND -6), p.  10. 
444 2006 Preliminary results of CVD administrative review , (Exhibit IND -32), p.  1590. See also 2000 
Issues and decision memorandum, (Exhibit IND -6), p.  9. 
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  price increase, which was paid by steel consumers in India, and these additional funds were then 
placed into the SDF as a source of concessional financing for the Indian steel industry."445 
7.177.   The USDOC's  explanation thus correlates with the evidence submitted by the GOI regarding 
the nature of the SDF programme, particularly on the following key aspe cts: (a) the main steel 
producers participated in the SDF programme; (b) the SDF raised funds through adding a fixed price 
element to the ex mine  price of steel to be paid (i.e. by consumers), which was in turn collected by 
the main steel producers and rem itted to the SDF; and (c) the ex mine  price of steel was itself fixed 
by the JPC, which was controlled by the GOI, and which the producers could not themselves raise.  
7.178.    India's  suggestion that "steel producers are voluntarily  contributing funds derived from  price 
increase[s] to the SDF and therefore it is a cost to such loan recipient steel producers"446 is not 
supported by the evidence recounted above.447 While participation in the SDF was itself not required 
by the GOI448, we note that all main steel producers participated449, and more importantly, that the 
price increase to fund the SDF was mandatorily applied after being decided by the JPC.450 Further, 
no evidence has been brought to our attention which suggests that the price increase to fund the 
SDF wa s an amount that the main producers could otherwise have used themselves. On the contrary, 
the main producers were not permitted to otherwise modify their ex mine  prices beyond the fixed 
levels.451 Therefore, it would be incorrect to infer that the levies co llected by the main steel producers 
represented amounts that they could have invested elsewhere for other purposes.452 Further, it 
would be incorrect to infer that the funds collected through the levies were the producers'  "own 
funds" in a context where the only permissible basis for collecting those funds was for transmittal to 
the SDF within 90 days. Rather, as a discrete pricing component that added to the ex mine  price 
(which, we recall, was already fixed by the JPC), it was reasonable for the USDOC to ch aracterize 
the SDF levy as a cost incurred by consumers. Thus, contrary to India's  argument, the SDF levy 
does not appear to reflect a "cost incurred by the SDF loan recipients in obtaining loans"453, nor does 
it represent the "pooling the collective 'profit s' of the participating steel enterprises".454 We recognize 
that an investigating authority is required to take into account all of the borrower's costs associated 
with obtaining a loan when identifying an appropriate benchmark under Article 14(b).455 However , 
for the reasons set out above, we conclude that the USDOC was not required to make adjustments 
to its benefit benchmark under Article  14(b) to accommodate the SDF levy as an entry cost incurred 
by the loan recipients. We consider it immaterial that the US DOC's  assessment in that regard was 
made within the rubric of its "financial contribution" determination as opposed to its "benefit" 
determination.456 
 
445 2006 Preliminary results of CVD administrative review , (Exhibit IND -32), p.  1590.  
446 India's  second written submission, paras.  208 and 2 10. (emphasis added)  
447 See above para. 7.175 . 
448 United  States'  responses to Panel question Nos. 38-40. 
449 GOI's  supplemental questionnaire response 2001, (Exhibit USA -14), exhibit 22, p.  1. 
450 Indian Supreme Court Judgment, (Exhibit IND -8), p. 345: "[i]t were the members of the [JPC] … 
were made bound to add  an element of ex -works price and to remit that amount for the constitution of the 
SDF" (emphasis added).  See also GOI's supplemental questionnaire response 2001, (Exhibit USA -14), p. 4: 
"[t]he SDF component, which was also equally applied to all  the member producers ". (emphasis added)  
451 GOI's supplemental questionnaire response 2001, (Exhibit USA -14), pp. 2-3 ("[t]he JPC determined 
the prices for the products manufactured by these steel producers" and "[p]rior to 1992, these producers could 
not unilaterally increase the price for their products, and they could only sell their products at the prices 
determined  by the JPC, which were applied equally to all producers").  
452 We note that there was a brief period between 1992 -1994 when the JPC (i.e. GOI) ceased fixing the 
prices of the main steel producers, but they continued to pay into the SDF. ( GOI's supplemental questionnaire 
response 2001, (Exhibit USA -14), p. 2). Neither party raised this as a relevant aspect to the present dispute.  
453 India's  second written submission, para.  201; first written submission, para.  166. 
454 India's  first written submission, para.  173. 
455 Appellate Body Report, US – Carbon Steel (India) , para.  4.349.  
456 We see no obligation in the SCM  Agreement that requires a determination to address certain matters 
only under certain headings . (Panel Report, EU – Fatty Alcohols  (Indonesia) , para.  7.173).  
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  7.5  Specificity:  India's  claims under Article  2.1(c) of the SCM  Agreement  
7.179.   In its reinvestigation, the USDOC pro vided fresh determinations regarding the specificity of 
three subsidy programmes, namely the NMDC's  sales of high -grade iron ore, the provision of leases 
to mine iron ore, and the provision of leases to mine coal.457 
7.180.   The fresh determination for the NMDC's  sales of high -grade iron ore arose from the 
Panel's  finding in the original proceedings that Article  2.1(c) expressly required that "account shall 
be taken" of "the length of time that the relevant [subsidy] programme has been in operation"458, 
and that the US DOC's  determination had omitted any indication that this factor had been considered, 
either implicitly or explicitly.459 The fresh determination for the other two subsidy programmes arose 
from the Panel's  finding in the original proceedings that there was in sufficient factual evidence to 
demonstrate their existence as subsidies in the first place under Articles  1.1(a)(iii) and 12.5 of the 
SCM Agreement.  
7.181.   India now claims that the USDOC erred in its reinvestigation by arriving at the conclusion 
that each of the se three subsidy programmes were de facto  specific under Article  2.1(c) of the 
SCM Agreement. We address below each of India's  three separate claims.  
7.5.1   Whether the USDOC erred in its specificity assessment for the NMDC's  sales of 
high-grade iron ore  
7.182.   India cl aims that the USDOC acted inconsistently with the final sentence of Article  2.1(c) of 
the SCM  Agreement by failing to identify a "subsidy programme" and the "length of time during 
which that subsidy programme has been in operation".460 The United  States obje cts under 
Article  21.5 of the DSU that India's  claim is outside the scope of the present compliance 
proceedings.461 We address that matter first.  
7.183.   The United  States argues that India could have challenged the identification of the "subsidy 
programme" in the original WTO proceedings, but did not.462 For the United  States, the DSB  ruling 
required the USDOC to take into account the mandatory "length of time" factor under Article  2.1(c), 
but did not require a reassessment of the "subsidy programme" at issue.463 In response to a question 
from the Panel, India clarified that there is no aspect of its argument on  the identification of a 
"subsidy programme" that is unconnected from its claim on the "length of time" factor.464 
Accordingly, India is not challenging the identification of a "subsidy programme" independently, but 
only to the extent  that it forms part of its claim regarding the "length of time" factor. Since there 
was a DSB  ruling in the original proceedings that the USDOC failed to account for the "length o f 
time" factor for the NMDC's  sales of high -grade iron ore and thus acted inconsistently with 
Article  2.1(c) of the SCM  Agreement, we reject the United  States'  objection under Article  21.5 of the 
DSU, whilst also taking note of the limited manner in which India pursues its argument on the 
identification of a "subsidy programme". In particular, we understand India to argue that the USDOC 
failed to identify the "subsidy programme" sufficiently to enable a consideration of the "length of 
time" factor.465  
 
457 The parties'  and the USDOC's  terminology for these programmes varies between "rights", "leases", 
and simply "mining of coal" and "mining of iron ore" – we adopt the term "leases" in this section for ease of 
reference. See also the parties'  responses to Panel question No. 46, indicating that these were synonyms.  
458 Panel Report, US – Carbon Steel (India) , para.  7.136.  
459 Panel Report, US – Carbon Steel (India) , paras.  7.118 and 7.136 -7.138.  
460 India's  first written submission, paras.  85-86. 
461 United  States'  first written submission, para.  212. 
462 United  States'  first written submission, para.  212. 
463 United  States'  first written submission, paras.  215 and 218.  
464 India's  response to Panel question No. 42. 
465 India's  first written submission, paras.  85-86 and 91.  
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  7.184.   We also reject the United  States'  argument that India cannot challenge the identification of 
the "subsidy programme" under the third sentence of Article  2.1(c).466 India's  submission in that 
regard is not independent from its claim under the third sentence on the "length of time" factor.467  
7.185.   We turn now to the substance of India's  claim. The parties  differ as to what needs to be 
demonstrated, as a matter of law, under Article  2.1(c) of the SCM  Agreement. India's  case is that 
an investigating authority can only ascert ain whether a subsidy programme has been "use[d] … by 
a limited number of certain enterprises" in light of the "length of time during which that subsidy 
programme has been in operation" after having made "two identifications".468 First, the investigating 
authority must identify the "subsidy programme".469 This involves evaluating whether a "plan or 
scheme" exists pursuant to which the subsidy at issue was provided.470 Second, the investigating 
authority must identify the length of time during which the subsidy pr ogramme has been in 
operation.471 This involves ascertaining when the programme was established and how long 
subsidies have been provided pursuant to that programme.472 
7.186.   The United  States responds that Article  2.1(c) has a "fact -driven nature", wherein the 
analysis required is flexible and can vary according to the factual scenario at issue.473 For the 
United  States, "evidence regarding the nature and scope of a subsidy program may be found in a 
wide variety of forms and often may already have been identified and determined to exist in the 
process of ascertaining the existence of the subsidy at issue under Article  1.1", particularly where 
the programme at issue is unwritten.474 
7.187.   As an initial matter, therefore, we are called upon to address whether, as a matter of law , 
Article  2.1(c) calls for a prescriptive analysis comprising the explicit identification of a "subsidy 
programme" and its overall duration, or alternatively, whether Article  2.1(c) reflects a more flexible 
legal standard that can be satisfied by citing ev idence from which it can be inferred that a 
"programme" exists and that it has been operating for a certain  period of time.  
7.188.   We note that the text of Article  2.1(c) of the SCM  Agreement – and specifically its third 
sentence – does not prescribe any particul ar method or analytical process for identifying a "subsidy 
programme" and "the length of time during which [it] has been in operation".475 The context of the 
provision suggests that the function of identifying these aspects is, inter alia , to inform the eval uation 
of whether a subsidy is de facto  specific due to "use of a subsidy programme by a limited number 
of certain enterprises".476 The rationale for taking into account the "length of time during which the 
subsidy programme has been in operation" in that re gard is because, if the programme has been 
 
466 United  States'  first written submission, paras.  235-237. 
467 The United  States is correct insofar as the third sentence ap pears to presuppose that the existence of 
the "subsidy programme" has already been determined. However, the third sentence also reveals features of 
the "subsidy programme" that need to be identified for the purposes of the analysis under Article  2.1(c). In  
particular, the third sentence reveals that the duration of the "subsidy programme" is a feature of the 
programme that may need to be ascertained. Thus, it is incorrect to argue that all relevant features of the 
"subsidy programme" that need to be identif ied for the purposes of the analysis under Article  2.1(c) are 
already clear in the second sentence. ( Appellate  Body Report, US – Countervailing Measures (China) , 
para. 4.142). An investigating authority may have identified that a "subsidy programme" exists  without, for 
instance, identifying when the programme was established, or how long it has been (or is projected to be) 
operating.  
468 India's  first written submission, paras.  86 and 90.  
469 India's  first written submission, paras.  86 and 88.  
470 India's  first w ritten submission, para.  92. 
471 India's  first written submission, para.  86. 
472 India's  first written submission, para.  89. 
473 United  States'  first written submission, para.  226. 
474 United  States'  first written submission, para.  234. 
475 More generally, the Appellate  Body has considered that the broader context of Article  2.1 suggests a 
flexible analytical framework, holding that "a proper understanding of specificity under Article  2.1 must allow 
for the concurrent application of these principles to the various legal and factual aspects of a subsidy in any 
given case ". (Appellate  Body Report, US – Countervailing Measures (China) , para.  4.117 (quoting 
Appellate  Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 371) (emphasis added); 
see also ibid. para.  4.130).  
476 Appellate  Body Report, US – Countervailing Measures (China) , para.  4.146.  
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  operating only for a short period of time, its use by a limited number of enterprises may not be 
indicative of specificity but rather a mere reflection of it being short -lived.477 
7.189.   In view of the function and rationa le for identifying the "subsidy programme" at issue and 
its "length of time", we conclude that the investigating authority's  analytical process must be 
sufficient to enable it to ascertain whether a subsidy is de facto  specific due to the "use of a subsidy 
programme by a limited number of certain enterprises", or instead, whether that limited use can be 
explained by the programme being short -lived.478 There are a number of facets that would logically 
form part of that ana lytical process. First, the analysis would need to ascertain whether the 
"programme" has been operating for a certain period of time such that its limited use by certain 
enterprises is not due simply to it being short -lived.479 Second, the consideration of w hether there 
is a "programme" which is capable of being "use[d]" by certain enterprises over a certain period of 
time suggests that the subsidy in question is part of some systematic activity480 that has some 
duration (be it long or short), as distinct from the isolated provision of a non -recurring subsidy.481 
Beyond that, however, Article  2.1(c) does not prescribe a particular method or analytical process for 
identifying the existence of a "subsidy programme" for the purposes of taking into account the 
"length  of time" factor.482 Since the USDOC explicitly considered the "length of time" factor for the 
NMDC's  sales of high -grade iron ore, we are not confronted in respect of this subsidy programme by 
the question of whether an unwritten "implicit" consideration ca n suffice under Article  2.1(c).  
7.190.   We turn now to the USDOC's  explanation. The USDOC relied on three pieces of evidence to 
account for the "length of time of the operation of the subsidy programme" in its broader evaluation 
of whether the NMDC's  sales of high -grade iron ore were specific due to their "limited use by certain 
enterprises". In view of the limited usefulness of one of those pieces of evidence483, we focus on the 
other two pieces of evidence relied upon by the USDOC in its explanation.  
7.191.   The first pie ce of evidence relied on by the USDOC was the fact that the NMDC was 
established "in 1958 with the objective of developing all minerals other than coal, petroleum oil and 
atomic minerals".484 India contends that this evidence merely conflates the establishme nt of the 
granting authority with the existence of a broader subsidy "programme". It is true that the USDOC 
did not cite evidence or arrive at a conclusion that the NMDC was established specifically to provide 
domestic subsidies through selling high -grade iron ore for LTAR. However, the United  States points 
to record evidence showing that the NMDC's  sales of iron ore was "consistent with the strategic 
objectives and plan of the Indian Government", particularly evidence relating to the importance that 
the GO I placed on the domestic availability of iron ore for the purposes of fostering domestic steel 
consumption.485 The United  States argues that this evidence – which was relied upon  in (or otherwise 
 
477 Panel Report, US – Countervailing Measures (China) ( Article  21.5 – China) , paras . 7.259 and 7.269.  
The panel in that case explained further that "[i]t is for this reason that Article  2.1(c) 'concedes a certain 
flexibility for investigating authorities to consider specificity in a number of factual scenarios that may 
arise' when making  a determination of de facto  specificity, while 'the last sentence of Article  2.1(c) function[s] 
as a safeguard that ke eps in check this flexibility'". (Ibid. para.  7.272).  
478 Panel Report, US – Countervailing Measures (China) (Article  21.5 – China) , paras.  7.269 and 7.273.  
479 Panel Report, US – Countervailing Measures (China) (Article  21.5 – China) , paras.  7.271 and 7.273.  
480 Appellate  Body Report, US – Countervailing Measures (China) , para.  4.141.  
481 Appellate  Body Report, US – Countervailing Measures (China) , para.  4.143.  
482 Appellate  Body Report, US – Countervailing Measures (China) , para.  4.141 . See also Panel Report s, 
US – Countervailing Measures (China) (Article  21.5 – China) , para. 7.283; and US – Coated Paper (Indonesia) , 
para. 7.145.  
483 This evidence is the existence of the question put to the GOI by the USDOC's  Standard Questions  
Appendix  as to the number of recipients of the subsidy programme over a four -year period. (Final 
Determination, (Exhibit IND -60), p p. 32-33; see also United  States ' first written submission, para. 221;  
response to Panel question No. 44, para. 103). Although the USDOC requested this information (in somewhat 
generic terms), the GOI did not respond because it disagreed that the NMDC supplied iron ore for LTAR and, on 
that basis, considered the Standard Questions Appendix  to be inapplicable. ( GOI's questionnaire response, 
2006 administrative review,  (Exhibit IND -18), p. 40). Despite the GOI declining to respond to this request for 
information, the USDOC did  not treat the GOI as uncooperative  nor seek recourse to the "facts available". 
Thus, the alleged "evidence" that the USDOC relied upon was merely the request for information as part of the 
generic questionnaire. In the absence of recourse to "facts availa ble", it is unclear how a mere request for 
information can comprise evidence that an investigating authority actually took into account whether a subsidy 
programme has been operating for a certain time period . 
484 Final Determination, (Exhibit IND -60), p.  33. 
485 United  States'  first written submission, paras.  241-242. 
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  connected to486) the USDOC's  "public body" determination – can n ow be used to augment the 
USDOC's  assessment of the "subsidy programme" at issue. We recall, in that regard, that the 
Appellate  Body has recogni zed that "the relevant 'subsidy programme', under which the subsidy at 
issue is granted, often may already have been identified and determined to exist in the process of 
ascertaining the existence of the subsidy at issue under Article  1.1", including that it has existed for 
a certain period of time.487 In such instances, an investigating authority does not need  to rep eat the 
aspects of its evaluation in determining the existence of the "subsidy" under Article  1.1 when 
subsequently determining the existence and duration of the "subsidy programme" under 
Article  2.1(c).488 On that basis, we consider it appropriate to take i nto account relevant evidence 
and explanations of the USDOC regarding its "public body" determination as part of our examination 
of whether the USDOC has adequately considered that a "subsidy programme" existed for some 
minimum period of time under Article  2.1(c).  
7.192.   We consider, in turn, that the USDOC's  discussion of the NMDC as a "public body" indicates  
that it considered the NMDC's  sales of iron ore to be "consistent with the strategic objective and plan 
of the Indian Government", and hence comprised a "s ystematic activity" that evinces the existence 
of a "programme" that endured over a certain period of time.489 In particular, the USDOC discussed 
its Verification Report in which a GOI official described the NMDC as "provid[ing ] a specific service 
to the people" and is therefore "monitored and reviewed by the government, as [it is] viewed as [a] 
strategic compan[y]" by the GOI.490 Additionally,  the USDOC discussed the NMDC  Chairman's 
recommendation as part of the Dang Report that "except [for] long term contract, export of iron ore 
should not be allowed" .491 We likewise recall that the NMDC recommended that "[e]xport of lump 
ore should be discouraged to meet domestic demand", and that "[t]he raw material being natural 
reserves should  be available adequately for the domestic industry and exports should not be at the 
cost of [the] domestic industry".492 As we have found earlier, these aspects of the "public body" 
determination provided a sufficient evidentiary basis for the USDOC to infer  that the NMDC's  supply 
of high -grade iron ore was affected by GOI policy considerations.493 This evidence implies a strategic 
motivation behind the NMDC's  domestic sales of iron ore that extends beyond a mere repetition of 
transactions by the NMDC for LTAR. 
7.193.   The second piece of evidence relied on by the USDOC was the fact that the investigated 
producers received the subsidy at issue over the course of a number of review investigations 
occurring in successive years, namely in 2004, 2006, and 2007.494 India argue s that the 
USDOC's  reliance on evidence of the NMDC's  sale of iron ore to certain producers is not sufficient to 
demonstrate that the "length of time" factor was addressed properly.495 We need not resolve in this 
dispute whether such evidence is alone suffic ient. Rather, we consider that the provision of individual 
subsidies over a number of years can permissibly corroborate other evidence that a "subsidy 
 
486 The United  States cites certain aspects of the Hoda Report, the Dang Report, and the 2004 New 
Subsidies Allegation that were not explicitly  relied upon by the USDOC  in its assessment of whether  the NMDC 
constitutes a "public body" and whether its sales of high -grade iron  ore constitute a "subsidy". 
(United  States'  first written submission, paras.  241-242). Those materials were instead cited by the USDOC in 
its Preliminary Determination concernin g the Captive Mining of Iron Ore subsidy programme. ( Preliminary 
Determination , (Exhibit IND -55), pp.  8-9). Nonetheless, as we explained above at fn 207 and para . 7.87 we 
may permissibly take those aspects of evidence into account because th ey are connected to the 
USDOC's  explanation regarding the NMDC as a "public body". In particular, they are connected to the 
USDOC's  discussion of the NMDC Chairman recommending export restraints in line with the GOI policy, and the 
NMDC's  prices being infl uenced by the GOI's  policy considerations and actions. (Final  Determination, 
(Exhibit  IND-60), pp.  21-22). 
487 Appellate  Body Report, US – Countervailing Measures (China) , para.  4.144.  
488 Panel Report,  US – Coated Paper (Indonesia) , paras.  7.159 and 7.164.  
489 Evidence of a "systematic activity" can be sufficient to evince a "programme", particularly when it is 
unwritten.  (Appellate  Body Report, US – Countervailing Measures (China) , paras.  4.141 and 4.149).  
490 Final Determination, (Exhibit IND -60), pp.  19-20; Preliminary Determination, (Exhibit IND -55), 
pp. 6-7 (referring to Dang Report, (Exhibit USA -2), p.  79; and Verification Report, (Exhibit USA -3), p.  9). 
491 Dang Report, (Exhibit USA -2), p.  185. 
492 Dang Report, (Exhibit USA -2), pp. 204 and 206.  
493 See above pa ras. 7.47, 7.84 and 7.89. We also recall the evidence that the NMDC seemed to limit its 
exports in a way that happened to be stricter than the legal maximum.  
494 Final Determination, (Exhibit IND -60), p.  33. 
495 India's  first written submission, paras.  90 and 93.  
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  programme" persisted over a period of time, thus demonstrating that the "limited use" of the subsidy 
was not merely due to the programme being short lived.  
7.194.   The sufficiency of the evidence relied upon by the USDOC must also be considered in light 
of the context of its assessment496: namely, the nature of the putative subsidy programme as an 
unwritten  measure involving the "provision of goods"497, and the nature of determinations of de facto 
specificity (as opposed to de jure  specificity).498 In particular, this context means that  the 
assessment will often be made in the absence of direct documentary evidence that the programme's 
use is confined to a "limited number of certain enterprises". In such a context, we consider  that the 
USDOC's reliance on the two aforementioned facts formed a sufficient evidentiary basis for taking 
into account the length of time during which the subsidy programme has been in operation as part 
of the broader assessment of whether the subsidy is de facto  specific due to the "use of a subsidy 
programme by a limi ted number of certain enterprises". We therefore conclude that India has not 
demonstrated that the USDOC acted inconsistently with Article  2.1(c) of the SCM  Agreement in its 
assessment of the "length of time" factor for the NMDC's  sales of high -grade iron ore. 
7.5.2   Whether the USDOC erred in its finding that mining leases for iron ore were de facto  
specific  
7.195.   India claims that the USDOC acted inconsistently with Articles  1.2, 2.1(c), and 2.4 of the 
SCM Agreement in its finding that the "leases to mine iron ore " programme  is de facto  specific. First, 
India points to a "contradiction" between the USDOC's  explanation and 
the United  States'  submissions in the present proceedings.499 In particular, according to India, the 
USDOC found that the leases were provided to both  steelmakers500 and standalone miners, whereas 
the United  States now submits that the leases were limited to steelmakers.501 Second, India argues 
that the USDOC failed to address the fact that the law governing mining leases established objective 
criteria unde r which all applicants were treated equally.502 For India, this was corroborated by record 
evidence showing that steel producers were not favoured over independent miners of iron ore either 
in terms of allocation of rights or the payment of royalties.503 
7.196.   The U nited States responds that " the USDOC relied on substantial record evidence that India 
had a mining leases for iron ore program under which mining rights were granted to Indian steel 
and mining companies through leases, and that those steel companies repre sented limited users of 
the iron ore."504 The United  States rejects India's  suggestion of a "contradiction" between its 
submissions and the USDOC's  explanation.505 Rather, both its submissions and the 
USDOC's  explanation rely on the provision of leases to mine  iron ore being limited to two industries, 
specifically steelmakers and mining companies.506 The finding that the "use of the iron ore from 
leases is limited to steel companies" was a factual matter demonstrating that the inherent 
characteristics of iron ore  make it limited to steelmakers as an input for producing steel, as opposed 
to reflecting the de facto  specificity determination in and of itself.507 In relation to India's  argument 
that the applicable law provides that mining leases are based on objective c riteria, the United  States 
argues first that this is irrelevant to findings of de facto  specificity, and second that the record 
evidence shows that the use of iron ore was limited to steel producers – both as a function of its 
 
496 See, e.g. Appellate  Body Reports, US – Countervailing Measures (China) , paras.  4.117 and 4.141; 
US – Anti-Dumping and Countervailing Duties (China) , para.  371. 
497 Panel Report, US – Countervailing Measures (China) (Article  21.5 – China) , para.  7.271; 
Appellate  Body Report, US – Countervailing Measures (China) , paras.  4.129 and 4.131, and fn 654.  
498 See generally Appellate  Body Report, US – Countervailing Measures (Ch ina), para. 4.141.  
499 India's  second written submission, para.  118. 
500 In relation to the terminology in this section, see the parties'  responses to Panel question No. 46, 
indicating that the following sets of terms variously used by the USDOC and the partie s are synonyms: 
(a) "steel makers"; "steel companies"; "the steel industry"; "steel producers"; and (b) "standalone mining 
companies"; "mining companies"; "mining entities"; "independent miners"; "miners" . 
501 India's  second written submission, para.  118. 
502 India's  first written submission, para.  96; second written submission, para.  118. 
503 India's  first written submission, paras.  96-97; second written submission, para.  118. 
504 United  States'  second written submission, para.  131. 
505 United  States'  second written  submission, paras.  132 and 134.  
506 United  States'  second written submission, para.  134. 
507 United  States'  second written submission, para.  133; response to Panel question No. 45, 
paras.  107-108. 
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  inherent utility to those pro ducers, and as a function of an explicit GOI strategy to channel iron ore 
to domestic steel producers.508 
7.197.   An important dimension of the parties'  dispute under this claim is that the Preliminary 
Determination defined the subsidy programme at issue as the "dir ect provision of a good" to "Indian 
[steelmakers] in exchange for a per unit fee"509, whereas the Final Determination expanded the 
finding of the "limited users" of the subsidy programme from domestic steelmakers alone to domestic 
steelmakers and standalone miners.510 
7.198.   India refers to a "contradiction" between the USDOC's  explanation that mining leases for 
iron ore were limited to steelmakers and standalone miners, on the one hand, and the 
United  States'  submissions in the present proceedings that they were limited to steelmakers.511 This 
contradiction is apparent between the USDOC's  Preliminary Dete rmination and F inal Determination . 
The Preliminary Determination defined the subsidy programme at issue as the "direct provision of a 
good" to "Indian [steelmakers] in exchange for a per unit fee".512 The USDOC then found there to 
be de facto  specificity in its Preliminary  Determination on the basis of limited use by Indian 
steelmakers, since the inherent use of iron ore is for steel production and the GOI pursued a strategy 
of directing iron ore to its domestic steelmakers.513 In the Final Determination, the USDOC expanded 
its finding of the "limited users" from domestic steelmakers alone to domestic steelmakers and 
standalone miners.514 However, the USDOC did not adjust any of its other findings from the 
Preliminary Determination regarding its definition of the subsidy program me (including the entities 
using the programme, i.e. steelmakers) and the rationale for its "limited use" finding.515 
7.199.   The USDOC's  failure to make adjustments to other aspects of its de facto  specificity 
determination when switching from "limited use" by stee lmakers to "limited use" by steelmakers 
and standalone miners results in a number of internal contradictions in its reasoning. First, the 
USDOC defined the "subsidy programme" at issue as the "direct provision" of iron ore to steelmakers 
through the provis ion of iron ore mining leases to steelmakers.516 By limiting the "subsidy 
programme" to steelmakers in this way, it is not possible for the programme to be used by other 
entities. Accordingly, it does not make sense for the USDOC to proceed to find "limited use" of this 
programme by a second industry not covered by the programme, i.e. standalone miners. Second, 
the USDOC's  rationale for its "limited use" finding pertained to the inherent use of iron ore as an 
input for steel, together with the pursuit by the GOI of a strategy of directing iron ore to domestic 
steelmakers.517 This may explain an inherent limitation (and therefore specificity) in the use of the 
leases for mining iron ore by domestic steelmakers , but it does not explain the limitation in the use 
of these leases by standalone miners . Standalone miners did not use the mining leases to produce 
steel, but rather to extract and sell iron ore, both domestically and for export.518 Thus, "limited use" 
of the mining leases for iron ore on the basis of their in herent use for domestic steel production by 
the recipient enterprises does not substantiate a "limited use" finding for standalone miners.  
7.200.   In summary, t he USDOC included standalone miners within the category of "a limited 
number of certain enterprises"  under Article 2.1(c)519, but did not include standalone miners within 
 
508 United  States'  first written submission, paras.  255-262. 
509 Preliminary Determination, (Exhibit IND -55), p.  8. The USDOC determined de facto  specificity on the 
basis of limited use of the subsidy programme by  Indian steelmakers, since the inherent use of i ron ore is for 
steel production and the GOI pursued a strategy of directing iron ore to its domestic steelmakers . (Preliminary 
Determination, (Exhibit IND -55), p.  9; confirmed in Final Determination, (Exhibit IND -60), p.  25). 
510 Final Determination, (Exhibi t IND -60), pp.  24-25. 
511 India's  second written submission, para.  118. See also's  response to Panel question No. 48. 
512 Preliminary Determination, (Exhibit IND -55), p.  8. 
513 Preliminary Determination, Exhibit IND -55, p.  9; confirmed in Final Determination, (Exhibit IND -60), 
p. 25. 
514 Final Determination, (Exhibit IND -60), pp.  24-25. 
515 If anything, the USDOC confirmed those aspects. ( Final Determination, (Exhibit IND -60), p.  25). 
516 Preliminary Determination, (Exhibit IND -55), pp.  7-8 and fn 34.  
517 Preliminary Determination, (Exhibit IND -55), pp.  8-9; confirmed in Final Determination, 
(Exhibit  IND-60), p.  25. 
518 This follows from how the USDOC defines  standalone miners as distinct from steelmakers engaged in 
captive mining of iron ore at the Prelimi nary Determination, (Exhibit IND -55), p p. 8-9 and fn 34. See also 
India's response to Panel question No. 48. 
519 Final Determination, (Exhibit IND -60), pp.  24-25. 
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  the category of entities that could "use" the "subsidy programme"  under Article 2.1(c) .520 Further, 
the USDOC's  rationale for the "limitation" of the programme to "certain enterprises" pertain ed only 
to the use of the programme by domestic steelmakers, and not by standalone miners.521 
7.201.   We recogni ze that there could be several  plausible bases on which the USDOC  could have 
sought to justify a "limited use" finding in respect of both domestic steelmakers and standalone 
miners. In its Final Determination, however, the USDOC reiterated its rationale from the Preliminary 
Determination that "iron  ore's inherent charac teristics makes the use of iron ore limited to steel 
companies as an input for producing steel".522 This rationale was despite the USDOC's  finding that 
standalone miners comprised an additional industry to whom the leases were granted523, and despite 
its findi ng that a significant portion of the iron ore granted under the leases may have been exported 
(i.e. used by standalone miners for export rather than for sale to domestic steelmakers).524 
7.202.   The United States has not reconciled these aspects of the USDOC's expla nation before us. 
On one hand, the United States argued that the USDOC's determination was based  on "limited use" 
by "two industries, specifically steel producers and mining companies ".525 On the other hand, the 
United  States'  maintained that the " use of the  iron ore from leases  is limited  to steel companies ".526 
We agree with India that there is no explanation in the USDOC's determination setting out a rationale 
for the limited nature of the program me at issue vis-à-vis "standalone mining companies", as distin ct 
from steelmakers.527 
7.203.   For all of the foregoing reasons, we are unable to conclude that the USDOC provided a 
reasoned and adequate explanation for its finding that the mining leases for iron ore programme 
was de facto  specific under Article  2.1(c) of the SC M Agreement. We therefore find that the USDOC 
acted inconsistently with Article  2.1(c) of the SCM  Agreement in finding that the mining leases for 
iron ore programme was de facto  specific.  In view of this conclusion, we do not consider it necessary 
for the effective resolution of this dispute to address India 's claims under Articles 1.2 and 2.4 of the 
SCM Agreement on this point.  
7.5.3   Whether the USDOC erred in its consideration of mandatory factors under 
Article  2.1(c) in respect of "mining leases for iron ore" and "mining leases for coal"  
7.204.   India claims that the USDOC acted inconsistently with Articles  1.2, 2.1(c), and 2.4 of the 
SCM Agreement by making "no attempt … to consider the economic diversification in India and the 
length of time [of] the two subsid y programs", despite proceeding to find de facto  specificity.528 
India's  case is simply that a "perusal" of the USDOC's  determination reveals no consideration of 
these factors.529 India rejects the suggestion that these factors could have been considered impli citly 
as evinced by other aspects of the determination, arguing instead that this would be tantamount to 
ex post  reasoning, and further, that the context afforded by the public notice requirements in 
Article  22 of the SCM  Agreement suggest that the USDOC m ust "determine" and "publish" its 
findings on these points.530 
7.205.   The United  States makes an Article  21.5 objection against India's  claim that the USDOC 
erred by failing to take into account the mandatory "length of time" and "extent of the diversification" 
factors under Article  2.1(c) for these two subsidy programmes.531 We briefly address this objection 
first. The United  States correctly notes that India could have challenged these matters in the original 
 
520 Preliminary Determination, (Exhibit IND -55), pp.  7-8. 
521 Preliminary Determination, (Exhibit IND -55), pp.  8-9. See also Final Determination, (Exhibit IND -60), 
p. 25. 
522 Final Determination, (Exhibit IND -60), p.  25. 
523 Final Determination, (Exhibit IND -60), p.  24. 
524 Preliminary Determination, (Exhibit IND -55), p.  8. 
525 United  States'  second written submission, para.  134 (quoting Final Determination, (Exhibit IND -60), 
p. 24). (emphasis added)  
526 United  States'  second written submission, para.  133. (emphasis original)  
527 India's  comments on United  States'  response to Panel question No. 47. 
528 India's  first written submission, para.  100; second written submission, para.  113. 
529 India's  first written submission, para.  100. 
530 India's  second written submission, paras.  114-116. 
531 United  States'  first written submission para.  250. 
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  proceedings, but did not.532 Indeed, India made these claim s in respect of other subsidy programmes 
in the original proceedings, but not in respect of the present two subsidy programmes.533 However, 
the United  States'  objection fails for the following reason. The Panel's  findings of violation regarding 
these two sub sidy programmes in the original proceedings were based on the absence of sufficient 
evidence to demonstrate their  existence .534 Thus, in order to implement the DSB  ruling, the USDOC 
was required to undertake its investigation afresh as to whether these putat ive subsidy programmes 
actually existed and, in turn, satisfied each of the legal elements necessary to permit the application 
of CVDs . This included an analysis of whether those programmes were specific under Article  2.1. 
Indeed, in the original proceedin gs the Panel  exercised judicial economy over India's  specificity 
claims535 regarding these two programmes for the very reason that the DSB  ruling would require a 
reconsideration of specificity in any event.536 Thus, the United  States'  objection fails.  
7.206.   Turning to the merits of India's  claim, the United  States rebuts that India's  claim is "generic 
and unsupported", and in any case, the extent of diversification of India's  economy was considered 
in the determination of the specificity of another subsidy programme (the NMDC's  sales of iron ore), 
and the length of time of the mining leases for coal programme was considered as part of the timing 
of the conferral of the coal lease to Tata.537 For the United  States, the requirement to "account" for 
these factors is suffic iently broad as to cover instances where these factors have been considered 
implicitly, and further, where these factors are not relevant in a given case, they need not be 
discussed explicitly.538 
7.207.   We now evaluate the merits of India's  claim that the USDOC failed (made  "no attempt" ) to 
consider the "extent of diversification" and "length of time" factors under Article  2.1(c). In light of 
India's  claim and the United  States'  rebuttal, the issue before us is whether the USDOC's 
determination reveals that it did in fact consider these mandatory factors to the extent required by 
Article  2.1(c) in the particular circumstances of these  subsidy programme s. 
7.208.   Since the parties diverge on what it means to consider the "extent of diversification" and 
"length of time" factors under Article  2.1(c), we begin by addressing what investigating authorities 
are required to do under that provision, including whether an un written "implicit" consideration can 
suffice. The relevant portion of Article  2.1(c) states:  
In applying this subparagraph, account shall be taken  of the extent of diversification of 
economic activities within the jurisdiction of the granting authority, as  well as of the 
length of time during which the subsidy programme has been in operation.539 
7.209.   We note first that the term "taking account" (in the active voice) is used to define and delimit 
the role played by these factors within the context of Article  2.1(c) . The ordinary meaning of this 
term, as identified by panels in relation to Article  2.1(c)540, and by the Appellate  Body in other 
contexts, refers to considering a matter along with other factors before reaching a decision.541 While 
"taking account" of these f actors is mandatory, this term does not prescribe a specific result or 
require a Member to conform to or act in accordance with a particular matter.542  
 
532 United  States'  second written submission, para.  117. 
533 Panel Report, US – Carbon Steel (India) , paras.  7.100, 7.136, 7.219, 8.2(a), 8.4(a), and 8.4(b).  
534 Panel Report, US – Carbon Steel (India) , paras.  7.217 and 7.252.  
535 Those specificity claims were different to the specificity claims that India now brings before the 
compliance Panel: Panel Report, US – Carbon Steel (India) , paras.  7.100,  8.2(a), 8.4(a), and 8.4(b).  
536 Panel Report, US – Carbon Steel (India) , paras.  7.219, 8.4(a), and 8.4(b).  
537 United  States'  first written submission, paras.  250-253. 
538 United  States'  second written submission, paras.  121-123. 
539 Emphasis added.  
540 The two panels that considered this term in the particular context of Article  2.1(c) considered  it to 
impose  "an obligation ' to take something into reckoning or considerati on; to take something on notice'". (Panel 
Reports, US – Countervailing Measures (China) ( Article  21.5 – China) , para.  7.259; EC and certain member 
States – Large Civil Aircraft , para. 7.969 (referring to Shorter Oxford English Dictionary , 4th edn, A. Stevenson 
(ed.) (Oxford University Press, 1993), p.  15)). 
541 See e.g. Appellate  Body Report,  US – Softwood Lumber  V, para.  133. See also Panel  Reports, EC – 
Approval and Marketing of Biotech Products , para. 7.1620;  US – COOL , paras.  7.775 -7.787; and US – 
Continued Suspension , paras.  7.492 and 7.611 . 
542 Panel Reports,  US – Clove Cigarettes , paras.  7.632 -7.633; Japan – Apples , para. 8.241.  
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  7.210.   Since Article  2.1(c) does not prescribe the manner in which "account shall be taken" of these 
factors, pa st panels have concluded it can be sufficient for other aspects of a determination to 
demonstrate that "account was taken" of the matter. For instance, in US – Softwood Lumber IV , the 
panel found that:  
While it is clear that the USDOC did not explicitly an d as such address the extent of 
economic diversification in its Final Determination, we consider that in noting that "the 
vast majority of companies and industries in Canada does not receive benefits under 
these programmes", the USDOC showed that it had taken account of the extent of 
economic diversification in Canada and its provinces, i.e. the publicly known fact that 
the Canadian economy and the Canadian provincial economies in particular are 
diversified economies.543 
7.211.   Other panels have likewise found that "taking into account the two factors in the final 
sentence of Article  2.1(c) need not be done explicitly", so long as there is some indication in the 
determination that the factors had been considered implicitly.544 Relatedly, it may be the case, as 
the Unit ed States contends, that one of these factors is simply irrelevant in a particular factual 
matrix.545 Even in such cases, there would still need to be an indication (implicit or explicit) that the 
investigating authority considered the factor and concluded i t to be irrelevant.546 Such an indication 
could flow from the nature and implications of the investigating authority's  reasoning on a given 
point, or may be self -evident from the investigating authority's  review of the record evidence or 
from the submissions  of an interested party during the investigation. This can only be determined 
in light of the circumstances of a given case. One particular circumstance that would, in our view, 
attenuate the level of scrutiny required of an investigating authority concern s whether interested 
parties had explicitly questioned specificity with supporting evidence during the investigation on the 
basis of the short duration of the subsidy programme or the lack of diversity in the relevant 
economy.547 An investigating authority w ould ordinarily be expected to consider the matter explicitly 
when confronted with relevant evidence, whereas it would be reasonable to expect only limited or 
implicit analysis if the matter was not raised at all by interested parties during an investigati on. 
7.212.   We turn now to India's  claim regarding the "extent of diversification" factor. It is uncontested 
that the USDOC's  determination does not mention this factor in its de facto  specificity determinations 
for the mining leases for coal programme and mining leases for iron ore programme.548 The question  
before us, therefore, is whether the USDOC's  explicit consideration of this factor in relation to 
another subsidy programme (the NM DC's sale of iron ore) was sufficient to reveal an implicit 
consideration of this factor for the two programmes that India now challenges. We conclude that 
this was sufficient for two reasons.  
7.213.   First, the nature of the "extent of diversification" factor is not specific to a given subsidy 
programme. Rather, the reason for taking this factor into account is because "where the extent of 
the underlying economic diversification is low, lack of diversification in the distribution of benefits 
would not by itself gi ve rise to a finding of de facto  specificity".549 Thus, as the United  States points 
out550, the consideration of this factor involves a macroeconomic assessment of diversification, which 
need not vary as between subsidy programmes operating within the same eco nomy.  
7.214.   Second, the way in which the USDOC evaluated the "extent of diversification" factor in its 
determination was not programme -specific, despite being situated within the "NMDC sales of iron 
 
543 Panel Report, US – Softwood Lumber IV , para.  7.124 (fns omitted; emphasis original). This finding 
was not appealed.  
544 Panel Report, US – Countervailing Measures (China) , para. 7.253 (referring to Panel Report, US – 
Softwood Lumber IV , para.  7.124). See also Panel Report, EC – Countervailing Measures on DRAM Chips , 
para. 7.229.  India's  argument that the context of Article  22 of the SCM  Agreement militates against "implicit" 
considerations by investigating authorities is misplaced; India relies on the requirement for investigating 
authorities to "publish" what they "determine", whereas the text of Article  2.1(c) refers to "account shall be 
taken" (i.e. not "determin e"). ( India's  second written submission, para.  116).  
545 United  States'  second written submission, para.  121. 
546 Panel Report, US – Carbon Steel (India) , para. 7.138.  
547 Panel Report, EC – Countervailing Measures on DRAM Chips , para. 7.229.  
548 United  States'  first written submission, para.  251. 
549 Panel Report, US – Anti-Dumping and Countervailing Duties (China) , para. 9.37. 
550 United  States'  second written submission, para.  125. 
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  ore" programme. The USDOC's  starting point was, in general term s, that "the extent of 
diversification of economic activities would only be material or relevant when diversification of 
economic activities does not exist".551 In examining whether "diversification of economic activities 
does not exist" in India, the USDOC' s methodology was to consider the "economic statistics on 
India's  industrial sector" in the annual reports of the Reserve Bank of India. Based on this data, the 
USDOC found there to be "diversification of the industrial sector in India as this sector is co mprised 
of [nineteen] industries and economic activities".552 Since the two subsidy programmes that India 
now challenges are likewise situated within "India's  industrial sector"553, the methodology and 
explanation provided by the USDOC in respect of the "NMDC sales of iron ore" programme applies 
equally to the two present programmes. We also note that, during the reinvestigation, the GOI only 
raised the USDOC's  failure to consider the "extent of diversification" factor in relation to the "NMDC 
sales of iron ore " programme. In that context, it is not unreasonable for the USDOC to have 
considered this generic factor only under the particular heading of the "NMDC sales of iron ore" 
programme.554  
7.215.   We turn now to the "length of time" factor. It is useful  to address the two subsidy 
programmes separately. We begin with the mining leases for coal programme. This programme was 
limited to the provision of a mining lease to Tata, and it is clear that the U SDOC's  determination 
examined the length of time over which this lease had extended. As the United  States identifies, the 
determination tracks the history of this lease from its original grant by the Raja of Ramgarh in 1907, 
to the post -independence affirm ation of this grant by the Bihar Land Reform Act in 1950, to the 
exemption of the lease from renegotiation under the MMDR  Act in 1957.555 Although not explicitly 
discussed within the rubric of de facto  specificity and the "length of time" factor, we find thi s sufficient 
to demonstrate that the USDOC did consider the length of time over which the subsidy programme 
had been operating, at least implicitly. India has thus not demonstrated that the USDOC acted 
inconsistently with Article  2.1(c) of the SCM  Agreemen t in this regard.  
7.216.   We turn now to India's  claim regarding the USDOC's  consideration of the "length of time" 
factor for the mining leases for iron ore programme. India correctly notes that there is no explicit 
discussion in the USDOC's  determination of the " length of time" during which this programme had 
been operating.556 For India, this shows that the USDOC did not, in fact, take the "length of time" 
factor into account.557 In response, the United States argued that:  
With respect to the mining rights of iron or e program, the USDOC explained in its 
Section 129 Determinations that all mining rights are owned by the state governments 
and mining leases for iron ore are granted with approval from the GOI to the steel 
industry.  It further noted that NMDC was "[i]ncorporated in 1958 as a fully Government 
of India owned public enterprise with the objective of developing all minerals other than 
coal, petroleum, and atomic minerals. " Thus, contrary to India 's assertions, the record 
evidence shows that the USDOC took i nto account the length of time the subsidy 
programs have been in operation.558 
7.217.   The United States elaborated that:  
The aim of a subsidy program becomes more evident as time progresses.  In the context 
of the mining rights of iron program, and taking the inhere nt characteristics of iron ore 
into account – i.e., that the mineral is inherently limited to steel companies as an input 
for producing steel – the USDOC observed that it became more evident as time 
progressed that leases for mining rights of iron ore were limited to India 's steel 
companies , including the NMDC. In light of this analysis in the USDOC 's Section 129 
 
551 Final Determination, (Exhibit IND -60), p.  31. 
552 Final Determination, (Exhibit IND -60), p.  31. 
553 Final Determination, (Exhibit IND -60), p.  32: "[b]asic metal and alloy industries "; "[m] ining and 
Quarrying "; "[r] ubber, plastic, petroleum and coal "; "[n] on-metallic mineral products ". 
554 Panel Report, EC – Countervailing Measure s on DRAM Chips , para. 7.229.  
555 Final Determination, (Exhibit IND -60), pp.  27-28. 
556 India's first written submission, para. 100.  
557 India's first written submission, para. 100.  
558 United States' first written submission, para. 253. (footnotes omitted)  
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  Determinations, it is apparent that the USDOC took account of the length of time the 
mining rights of iron ore program has been in operation.559 
7.218.   It is apparent from these extracts that three factors inform the United States' rebuttal: (a) 
the NMDC was established in 1958 ; (b) the use of iron ore is inherently limited to steel companies; 
and (c) the USDOC's observations regarding the then -current and f orecast demand for iron ore by 
domestic steelmakers.  
7.219.   As we have indicated earlier,  an assessment of the mandatory factors under Article 2.1(c) 
can be implicit560, and likewise they can potentially be addressed through other aspects of a 
determination561, e.g. when identifying the features of the financial contribution at issue.  Further, 
the fact that no interested party or interested Member raised this matter during the reinvestigation 
is relevant procedural context.562 It informs the Panel's assessment of the level of scrutiny that was 
reasonably required of the USDOC in taking account of the length of time factor in its specificity 
determination for the mining leases for iron ore programme.  We also note that, in the original 
proceedings, the Panel made the follo wing remarks in respect of another subsidy programme on 
"inherent use", specificity, and the length of time factor:  
We also note the United States' argument that the evidence underlying USDOC's 
specificity findings with respect to high -grade iron ore led t o the conclusion that the 
issue of the duration of that programme's operation was not relevant to the subsidy 
programme at issue. The United States contends that because the USDOC found that 
"the actual recipient of the subsidy is limited to industries tha t use iron ore, including 
the steel industry, and is thus limited in number", no additional analysis of the duration 
of the subsidy was necessary. Since there is no statement to this effect in the USDOC's 
determinations, nor in any contemporaneous document ation, we are unable to take this 
argument into account when considering whether or not the USDOC complied with the 
requirements of Article 2.1(c) .563 
7.220.   In line with these remarks, we recognize that an "inherent use" rationale could render the 
"length of time" factor irrelevant or redundant in a given case.564 However, there must be some 
indication that this was the rationale of the investigating authority.565 
7.221.   With these considerations in mind, we now address whether the USDOC could be said to 
have taken accou nt of the "length of time" factor for the mining leases for iron ore programme. No 
material has been brought to our  attention to suggest that the GOI or any interested party raised 
the issue of the "length of time" factor during the reinvestigation in resp ect of the mining leases for 
iron ore programme.566 This attenuates the level of scrutiny that was reasonably required of the 
USDOC in taking account of the length of time factor. However, there would still need to be some 
indication that this factor wa s, in fact, taken into account.  While the United  States draws attention 
to the date of establishment of the NMDC being 1958, we see nothing to indicate in the USDOC's 
discussion of this matter to suggest that it reflected an implicit consideration of the length  of time 
of the mining leases for iron ore programme.567 There is simply no link drawn between that fact and 
the duration of the mining leases for iron ore programme. Likewise, the United States draws 
attention to the USDOC's observations regarding the then -current and forecast demand for iron ore 
by domestic steelmakers, but again we cannot discern a link between this and an implicit 
consideration of the length of time of the mining leases for iron ore programme.568 Further, the 
United States makes reference t o the "inherent use" nature of the USDOC's reasoning, but there is 
 
559 United States' second written submission, para. 126. (foonotes omitted)  
560 See above para. 7.211 . This depends, of course, on the circumstances of a given case. 
561 See above para. 7.210 . This depends, of course, on the circumstances of a given case.  
562 See above para. 7.211 . 
563 Panel Report,  US – Carbon Steel (India) , para. 7.138. (fn omitted; emphasis added)  
564 See also Panel Report,  US – Carbon Steel (India) , para. 7.131: "once it is established that access to 
the subsidy is limited, that subsidy is specific within the meaning of Article 2".  
565 Thus, the United  States'  argument that " [w]here these two factors are not relevant to the authority 's 
determination, it need not include express discussion of each factor " does not hold.  (United  States'  second 
written submission, para.  121). 
566 This was not raised by the GOI in its case brief: Case brief, (Exhibit IND -57), pp. 32-37. 
567 Final Determination, (Exhibit IND -60), p. 33. 
568 United  States'  second written submission, para.  126. 
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  nothing in the USDOC's determination or any contemporaneous documentation which indicates that 
it found the "length of time" factor to be irrelevant because of the inherent use of iron ore.569 The 
United  States'  arguments on these points would therefore appear to reflect ex post  reasoning in 
relation to the length of time factor under Article 2.1(c).  
7.222.   We recognize that there was material before the USDOC regarding the length of time that 
the mi ning leases for iron programme had been operating. For instance, the GOI noted in its case 
brief that the alleged subsidy programme had been available to other entities in periods between 
1999-2000 and 2003 -2004, as well as 2004 -2005 and in the 2006 admini strative review.570 The GOI 
also cited an exhibit571, which in turn set out the mineral concession approvals that had been made 
by the Central Government.572 This exhibit lists concessions to mine iron ore that had been approved 
over a period spanning 1999 -2008.  Again, however, there is no indication that the USDOC took this 
material or any other relevant material into account as part of a consideration of the mandatory 
"length of time" factor for this subsidy programme under Article 2.1(c). It is uncontested tha t there 
is no explicit discussion of this factor in the USDOC's explanation, and nothing indicates to us that it 
was otherwise considered implicitly.   
7.223.   We therefore find that the USDOC acted inconsistently with Article 2.1(c) of the SCM 
Agreement by failing  to take account of the length of time during which the mining leases for iron 
ore programme had been in operation.  In view of our conclusions in this Section, we do not consider 
it necessary for the effective resolution of this dispute to address India 's claims under Articles 1.2 
and 2.4 of the SCM Agreement.  
7.6  Soliciting and accepting new evidence in the reinvestigation: India's  claims under 
Article  12.1 of the SCM  Agreement  
7.224.   India claims that the USDOC acted inconsistently with Article  12.1 of the SCM  Agreement by 
failing to : (a) notify interested parties of the information it required; (b) seek relevant information; 
and (c) reopen the record and accept information voluntarily provided.573 India's  claim concerns the 
USDOC's  treatment of two separate matters,  namely the alleged "enhanced autonomy" granted to 
the NMDC through "Miniratna" status, and the proprietary Tata price quote. The text of Article  12.1 
provides:  
Interested Members and all interested parties in a countervailing duty 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.  
7.225.   It is uncontested that there was no finding of violation of Article 12.1 in the original 
proceedings. Therefore, there was no explicit DSB  ruling that required the USDOC to reobserve the 
procedural protections under Article  12.1 as part of its Section  129 reinvestigation. Accordingly, the 
question before us is whether the DSB  rulings somehow necessitated the seeking and acceptance of 
new evidence, thus re -enlivening Article  12.1 in the USDOC's  reinvestigation, despite the absence 
of an explicit DSB  ruling in that regard.  
7.226.   In respect of the Tata price quote , we have alrea dy found that the USDOC had a sufficient  
basis for rejecting this evidence as not reflecting "prevailing market conditions" under Article  14(d) 
of the SCM  Agreement . We therefore exe rcised judicial economy over India's alternative claim 
regarding the confidentiality of the price quote.574 Since India's claim under Article 12.1 likewise 
relates to the confidentiality of the Tata price quote , we also exercise judicial economy over this 
claim . In respect of the legal implications of the NMDC's  Miniratna sta tus, we have already found 
that the DSB  ruling did not prescribe explicitly that additional evidence would be required for the 
 
569 Thus, the United  States'  argument that " [w]here these two factors are not relevant to the authority 's 
determination, it need not include express discussion of each factor " does not hold. (United  States'  second 
written submission, para.  121). 
570 Case brief, (Exhibit IND -57), pp.  26-27. 
571 Case brief, (Exhibit IND -57), fn 64.  
572 Tata verification exhibits , (Exhibit IND -36), pp.  4-17. 
573 India's  first written submission, paras.  195 and 199;  second written submission, para.  233. 
574 See above section 7.3.5. 
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  USDOC to apply the correct legal standard, nor that there was anything especially probative about 
the evidence of Miniratna statu s – other than that it was pertinent to questions of the relationship 
between the Government and NMDC, which was the correct legal standard to be applied.575 As we 
have explained above576, the existing record evidence provided the USDOC with a sufficient 
evide ntiary basis for concluding that the NMDC was not endowed with a generali zed "enhanced 
autonomy", and that any autonomy exercised by the NMDC was confined in such a way that it did 
not rebut other evidence indicating "meaningful control" of the NMDC by the  GOI. We therefore see 
no basis arising from the DSB  ruling to require the USDOC to reobserve Article  12.1 of the 
SCM Agreement and to thereby have imposed an obligation on the USDOC to allow the submission 
of the "new factual information" on Miniratna sta tus. 
7.227.   We note that India also argues that, regardless of whether the DSB  ruling explicitly required 
new evidence to be sought and accepted in the reinvestigation, Article  21.4 of the SCM  Agreement 
requires the observance of Article  12 in reviews. For India,  this means that Article  12 applies to the 
Section  129 reinvestigation through Article  21.4, since it involved the reinvestigation of 
administrative reviews.577 
7.228.   We have evaluated India's  argument, and likewise the United  States'  rebuttal578, and we 
consider th at the SCM  Agreement does not refer to the steps that an investigating authority must 
take to implement DSB  rulings or to the collection of evidence at that stage.579 It therefore does not 
prescribe anything particular in that regard.  It does not explicitly preclude580, nor explicitly 
mandate581, the reopening of the evidentiary record for the purposes of a reinvestigation. The key 
question pertains to what the DSB  ruling required of the USDOC582, and as we have found, India has 
not demonstrated that the DSB  ruling in this case required the USDOC to reobserve Article  12.1 of 
the SCM  Agreement in its Section  129 reinvestigation.  We therefore conclude that India's  claim 
under Article  12.1 regarding Miniratna status is not within the scope of the present compliance 
proceedings under Article  21.5 of the DSU.  
7.7  Disclosure of essential facts: India's  claims under Article  12.8 of the SCM  Agreement  
7.229.   India claims that the USDOC acted inconsistently with Article 12.8 of the SCM  Agreement by 
failing to disclose two "essential facts" in the Section  129 Preliminary Determination, which in turn 
inhibited the GOI's  ability to defend its interests.583 India does not allege there to be a DSB  ruling 
arising from a violati on of Article  12.8 in the original proceedings. Rather, India's  argument is that 
the USDOC's  implementation of two other DSB  rulings reactivated the procedural protections under 
 
575 The overall error by the USDOC was a failure to provide a reasoned and adequate explanation for i ts 
finding that  the NMDC is a public body within the meaning of Article  1.1(a)(1) of the SCM  Agreement  
(Appellate  Body Report,  US – Carbon Steel (India) , para. 4.55), which flowed from its failure to app ly the 
correct legal standard (ibid. para. 4.52). See also ibid. paras.  4.37 and 4.54.  
576 See above paras. 7.41-7.43 and 7.67. 
577 India's  second written submission, para.  232; response to Panel question No. 53. 
578 United  States'  first written submission, paras.  377-379. 
579 See, by  analogy, Appellate  Body Report, US – Oil Country Tubular Goods Sunset Reviews 
(Article  21.5 – Argentina) , para.  167. Contrary to India's  contention (India's  response to Panel question 
No. 53), the Section  129 reinvestigation is not a "new" administrative review governed by Article  21 of the 
SCM Agreement that is separate from e.g. the administrative review that it is seeking to amend following an 
adverse DSB  ruling. Unlike Article  21.4 of the SCM  Agreement, nothing in the text of the SCM  Agreement 
directly  applies Article  12 to reinvestigations that seek to implement adverse DSB  rulings. The Panel agrees in 
this regard with the European  Union's  third-party response to Panel question No. 8. 
580 Appellate  Body Report, US – Oil Country Tubular Goods Sunset Reviews (Article  21.5 – Argentina) , 
para. 167. 
581 Panel Report, Korea – Certain Paper (Article  21.5 – Indonesia) , para.  6.74. In this regard, we 
disagree with the Canada's  third-party response to Panel question No. 8. Unlike Article  21.4 of the 
SCM Agreemen t, nothing in the text of the SCM  Agreement directly applies Article  12 to reinvestigations that 
seek to implement adverse DSB  rulings.  
582 We find support for this in Article  19 of the DSU, which provides in relevant part that: "[w] here a 
panel or the Appel late Body concludes that a measure is inconsistent with a covered  Agreement , it shall 
recommend that the Member concerned bring the measure into conformity with that  Agreement " (emphasis 
added; fn omitted). Thus, the question of whether Article  12.1 of the  SCM Agreement needed to be reobserved 
in the Section  129 reinvestigation hinges on whether that would be a necessary facet of bringing the measure 
into conformity, that is, of complying with the applicable DSB  rulings. See also European  Union's  third-party 
response to Panel question No. 8, para.  57; and Japan's  third-party response to Panel question No. 8, para.  27. 
583 India's  first written submission, paras.  203, 206, and 220.  
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  Article  12.8, with which the USDOC failed to comply. First, India submits that  the USDOC failed to 
mention the export restrictions on iron ore as a reason for rejecting the NMDC's  export price as a 
benchmark under Article  14(d) in the Section  129 Preliminary Determination, despite relying on this 
fact in the Section  129 Final Determ ination. Second, India submits that the USDOC's  Section  129 
Preliminary Determination failed to analyse the mandatory "length of time" and "diversification" 
factors in relation to the NMDC's  sale of high -grade iron  ore, and instead addressed these for the 
first time in the Section  129 Final Determination.  
7.230.   The United  States responds that Article  12.8 does not require the disclosure of reasoning, 
nor does it prescribe the manner in which essential facts are to be disclosed.584 Thus, the disclosure 
of the fact r egarding export restrictions on iron ore in a verification report in the 2004 administrative 
review  sufficed to comply with Article  12.8585, despite not being linked to the rejection of the 
NMDC's  export price as a benchmark.586 According to the United  States,  this fact was also disclosed 
in the Section  129 Preliminary Determination in relation to its analysis of the NMDC as a "public 
body" (insofar as the document containing this fact was cited).587 The United  States likewise 
contends that the facts regarding th e mandatory "diversification" and "length of time" factors were 
"disclosed" consistently with Article  12.8 by their inclusion on the record in the original 
investigation/reviews, despite not being linked to the USDOC's  specificity analysis in the Section  129 
Preliminary Determination.588 For the United  States, the USDOC's  disclosure of the essential facts at 
issue was sufficient to enable the GOI to defend its interests.589 
7.231.   The text of Article  12.8 of the SCM  Agreement provides:  
The authorities shall, before a final determination is made, inform all interested 
Members and interested parties of the essential facts under consideration which form 
the basis for the decision whether to apply definitive measures. Such disclosure should 
take place in sufficient time fo r the parties to defend their interests.  
7.232.   In light of the parties'  arguments, we are called upon to resolve two main issues. The first 
issue is whether Article  12.8 applied afresh to the Section  129 reinvestigation. The second issue 
concerns the extent to which Article  12.8 requires an investigati ng authority to indicate how it 
intends to use the "essential fact" in question. Under the United  States'  approach, Article  12.8 does 
not contain such a requirement ; rather, it is sufficient for an investigating authority  to disclose the 
fact in relation to a different aspect of the determination, or through mentioning the fact in a 
verification report, or through placing the fact on the record.590 Under India's  approach, Article  12.8 
requires not only the disclosure of a gi ven fact, but also the disclosure of an investigating 
authority's  reliance  on that fact, such that an interested party may defend its interests.591 
7.233.   Beginning with whether Article  12.8 of the SCM  Agreement applied afresh to the Section  129 
reinvestigation, th e United  States argues that the USDOC complied with this requirement in the 
underlying reviews/investigations, and thus did not need to  again disclose the "essential facts under 
consideration" in the Section  129 reinvestigation.592 The United  States emphasiz es that " from the 
outset of the Section  129 proceeding, India was aware that the USDOC was reevaluating and 
providing additional analysis concerning the record evidence from the proceedings at issue – the 
2004, 2006, 2007, and 2008 administrative reviews – as a result of WTO -inconsistent findings".593 
India's  response is that the Section  129 reinvestigation was a "separate investigation" vis-à-vis the 
underlying reviews/investigation, hence requiring the separate application of Article  12.8 to the 
reinvestiga tion.594 In support, India relies on the context afforded by Article  21.4 of the 
SCM Agreement, which requires the reapplication of the disciplines of Article  12 (including 
 
584 United  States'  first written submission, paras.  385-386 and 389.  
585 United  States' first written submission, para.  388; second written submission paras.  226, 228, and 
233. 
586 United  States'  first written submission, para.  389. 
587 United  States'  first written submission, para.  391. 
588 United  States'  first written submission, para.  395. 
589 United  States'  second written submission, paras.  230-231 and 237 -238. 
590 United  States'  first written submission, paras.  386, 389, 392, and 396.  
591 India's  first written submission, para.  221; second written submission para.  239. 
592 United  States'  first writ ten submission, para.  390; second written submission, paras.  226-230. 
593 United  States'  first written submission, para.  390; see also ibid. para.  395. 
594 India's  second written submission, para.  236. 
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  Article  12.8) to administrative and sunset reviews, as opposed to relying on the disc losure in the 
original investigation.595 
7.234.   In our evaluation of India's  claim under Article  12.1, we have already explained596 that the 
SCM Agreement does not refer to the steps that an investigating authority must take or to the 
collection of evidence when unde rtaking a reinvestigation to implement adverse DSB ruling.597 We 
consider that the same observation applies to an investigating authority's  treatment of essential 
facts in such a reinvestigation.598 As with Article  12.1, nothing in the text of the SCM  Agreemen t 
explicitly precludes or mandates the disclosure of essential facts under Article  12.8 for the purposes 
of a reinvestigation. That being the case, the key question pertains to what the DSB  ruling required 
of the USDOC.  
7.235.   The United  States contends that whe n an investigating authority's  consideration is limited 
to the same pool of record evidence as in the originally -challenged investigation, there is no need to 
reobserve Article  12.8.599 We accept that this may sometimes be the case.  
7.236.   However, if the DSB  ruling requires a fresh factual evaluation  of the same pool of record 
evidence, this may result in an investigating authority relying on different factual bases vis-à-vis the 
originally -challenged investigation, thus necessitating a new disclosure of the essen tial facts that are 
under consideration for the purposes of Article  12.8.600 In our view, this was clearly the case in 
respect of the DSB  rulings pertaining to India's  present claim. With regard to the alleged failure to 
disclose the export restrictions on t he NMDC's  iron ore in the context of its benchmark determination, 
the USDOC's  reinvestigation arose from a DSB  ruling that the USDOC had failed to take into account 
certain evidence (the domestic pricing information).601 With regard to the alleged failure to  disclose 
the length of time and extent of diversification of the Indian economy in the context of its specificity 
determination, the USDOC's  reinvestigation arose from a DSB  ruling that the USDOC had failed to 
take those mandatory factors into account.602 In both of these instances, the DSB  rulings necessarily 
required a reconsideration of evidence, thus creating the potential for a different set of "essential 
facts" forming the basis of the determination in the Section  129 reinvestigation, and relatedly, 
generating a renewed basis for interested Members and interested parties to defend their interests.  
7.237.   We therefore find that the USDOC was required to reapply Article  12.8 in the Section  129 
reinvestigation in relation to the two matters identified by India. We now evaluate whether India has 
demonstrated that the USDOC acted inconsistently with Article  12.8 by failing to disclose the 
essential facts in relation to the t wo matters referred to by India. We begin our evaluation of 
India's  claims with an overview of the legal standard under Article  12.8, before applying this to the 
alleged steps taken by the USDOC to "disclose" the "essential facts" that were "under consider ation" 
in the Section  129 redetermination.  
7.238.   We recall that the text of Article  12.8 of the SCM  Agreement requires investigating 
authorities to "inform all interested Members and interested parties of the essential facts under 
consideration which form the ba sis for the decision whether to apply definitive measures". The 
second sentence of the provision indicates that one of the functions of such disclosure is to enable 
"the parties to defend their interests".603 This suggests that the manner of "disclosure" sho uld suffice 
to discharge that function.604 Further, the context afforded by Article  12.3, which sets out interested 
parties'  right to inspect the record, suggests that the disclosure under Article  12.8 requires 
 
595 India's  second written submission, paras.  236-237. 
596 See above para. 7.228 . 
597 See, by analogy, Appellate  Body Report, US – Oil Country Tubular Goods Sunset Reviews 
(Article  21.5 – Argentina) , para.  167. 
598 See above para. 7.228 . 
599 United  States'  first written submission, paras.  388-389; second written submission paras.  226, 228, 
and 233; and response to Pane l question No. 53, para.  126. 
600 Panel Report s, Korea – Certain Paper ( Article  21.5 – Indonesia) , paras.  6.79-6.80; US – Oil Country 
Tubular Goods Sunset Reviews ( Article  21.5 – Argentina) , para. 7.150 (proceeding on the assumption that 
Article  6.9 of the Anti -Dumping  Agreement  reapplied  in the Section  129 redetermination at issue).  
601 Panel Report, US – Carbon Steel (India) , para. 7.154. See also ibid. para.  7.158.  
602 Panel Report, US – Carbon Steel  (India) , para.  7.136.  
603 Appellate  Body Report, Russia – Commercial Vehicles , para. 5.177; Panel Report, Guatemala – 
Cement II , para. 8.229.  
604 United  States'  first written submission, para.  387. 
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  something more than merely placing facts on the  record of investigation.605 Beyond that, Article  12.8 
does not prescribe the method of disclosure. We agree with the panel in Argentina – Ceramic Tiles  
that Article  12.8 can be "complied with in a number of ways" such as "through the inclusion in the 
record  of documents – such as verification reports, a preliminary determination, or correspondence 
exchanged between the investigating authorities and individual exporters – which actually disclose 
to the interested parties the essential facts".606  
7.239.   We also agree with the panel in that case that the disclosure must convey that the facts 
being disclosed "are anticipated by the authorities as being those which will form the basis for the 
decision whether to apply definitive measures".607 This is because Article  12.8 re quires the disclosure 
of the essential facts that are "under consideration".608 Thus, the disclosure must somehow make 
the interested party aware that the "essential fact" is "under consideration" by the investigating 
authority as the authority proceeds towa rds a final determination.609 This does not mean that 
Article  12.8 requires the disclosure of the reasoning or legal rationale behind the investigating 
authority's  consideration of the fact610, nor the conclusions of the investigating authority.611 Rather, 
the focus of Article  12.8 is on the disclosure of the essential facts, and to that extent we agree with 
India that it is "intended to provide the interested parties with the necessary information to enable 
them to comment on the completeness and correctness of the facts being considered by the 
investigating authority, provide additional information or correct perceived errors , and comment on 
or make arguments as to the proper interpretation of 'those facts'".612  
7.240.   We now apply this understanding of Article  12.8 to the two aspects of the Section  129 
reinvestigation challenged by India. We begin with India's  allegation that the USDOC failed to 
disclose the fact that the GOI placed export restrictions on iron ore in the context of the 
USDOC's  rejection of the NMDC's  export prices as a benchmark under Article  14(d). We have already 
recounted above the procedural context in which this "fact" emerged in the USDOC's  "benefit" 
analysis, and relatedly in the USDOC's  "public body" analysis.613 In short, the GOI sought to rebut 
the USDOC's  Preliminary Determination of the NMDC as a "public body" by pointing to record 
evidence that the NMDC's  prices were based on commercial considerations.614 The USDOC examined 
the exhibits relied upon by the GOI, and found in relation to its "public  body" determination that 
"[c]ontrary to the GOI's  assertion that prices are determined by the supply and demand of the 
market, NMDC described at verification that there are export restrictions in place for high -grade iron 
ore with a high Fe content".615 These exchanges  between the USDOC and GOI took place in the 
"public body" context. However, they are  also significant to the USDOC's rejection of the NMDC's 
export prices in the "benefit" context. This is because the USDOC relied on its assessment of the 
NMDC  as a "public body" to justify its rejection of the NMDC's  export prices as a benchmark under 
Article  14(d) in the Preliminary Determination.616 It is thus not surprising that this exchange between 
the GOI and USDOC  on export restrictions also  emerged in the USDOC's  rejection of the 
NMDC's  export prices as a benchmark in the Final Determination, given that the very character of 
the NMDC as a "public body" had been the USDOC's  key consideration in the Preliminary 
Determination.  
7.241.   Indeed, in our view, the USDOC's  factual assessment of the NMDC as a "public body" and 
its rejection of the NMDC's  export prices as distorted by the export restrictions are inherently 
linked.617 The USDOC identified the potential unreliability of  the NMDC's  export prices – by virtue of 
 
605 Panel Report, Guatemala – Cement II , para. 8.230. 
606 United  States first written submission, para.  386 (quoting Panel Report, Argentina – Ceramic Tiles , 
para. 6.125).  
607 Panel Report, Argentina – Ceramic Tiles , para.  6.125.  
608 Panel Report, US – OCTG (Korea) , para.  7.232.  
609 Appellate  Body Report , China – GOES , fn 390; Panel Report, Guatemala – Cement II , para. 8.229.  
610 Panel Report , China – GOES , para. 7.407.  
611 Panel Report, US – OCTG (Korea) , para. 7.233.  
612 India second written submission, para.  250. (emphasis added)  
613 See above sections 7.2.3.3  and 7.3.7. 
614 Case brief, (Exhibit IND -57), pp. 13-14. 
615 Final Determination, (Exhibit IND -60), pp.  20-21 (referring to Verification Report, ( Exhibit USA -3), 
p. 8). 
616 Preliminary Determination, (Exhibit IND-55), p.  14. 
617 We disagree with the United  States that the export restrictions were themselves an "essential fact". 
(United  States'  first written submission, para.  388). Nothing in the USDOC's  determinations suggests that this 
was an independent basis f or rejecting the NMDC's  export prices as unreliable, but rather, the Final 
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  it being the investigated public body – as the factual basis for rejecting those prices in the Preliminary 
Determination.618 We consider this to be the "essential fact" that was "under consideration". The 
GOI in its c ase brief accepted that the Appellate  Body had stated that the "export prices of NMDC 
need to be used with caution", and further quoted the Appellate  Body as stating that an 
"investigating authority can[not] presume that the export price set by a governmen t provider is 
inherently unreliable", but rather "[t]his must be proven on the basis of evidence that an 
investigating authority must examine so that it may base its determination on positive evidence on 
the record".619 Thus, the GOI responded to the fact that the NMDC was the putative public body at 
issue, and more specifically, the fact that its export prices may be unreliable by virtue of its status 
as a "public body". The GOI's engagement suggests that these facts had been disclosed as the 
"essential fact s" that were "under consideration" in respect of the NMDC's export prices.  
7.242.   Further, as we have mentioned620, the same exhibit through which the GOI sought to 
demonstrate that the NMDC's  prices were commercially determined also provided the evidence for 
the USDOC's  finding in response that there were export restrictions applying to the NMDC's  exports. 
When viewed in context, therefore, it was sufficiently clear to the GOI that potential distortions 
impacting the NMDC's  export prices arising from its character  as a "public body" were "under 
consideration" by the USDOC. In our view, the USDOC's  reliance on evidence of such distortions in 
the very exhibit submitted by the GOI cannot manifest a violation of Article  12.8. Therefore, India 
has not demonstrated that the USDOC acted inconsistently with Article  12.8 of the SCM  Agreement 
on this point.  
7.243.   We turn now to the facts regarding the length of time of the NMDC's  sales of iron ore, and 
the extent of diversification of the Indian economy, which we recall are mandato ry factors to be 
taken into account as part of de facto  specificity determinations under Article  2.1(c). The 
United  States contends that the mere inclusion of these facts on the record was sufficient to 
"disclose" them under Article  12.8, in view of certai n contextual considerations.621 These contextual 
considerations were as follows : (a) due to the Panel's  finding in the original proceedings that the 
USDOC erred by failing to discuss the length of time and extent of diversification factors, the GOI 
was aware  that the USDOC would need to address those factors at some stage in the 
reinvestigation622; (b) these facts were disclosed in the originally -challenged investigation, and India 
had the opportunity  to comment at that stage623; and (c) India did in fact address  the mandatory 
length of time and extent of diversification factors in its case brief in the Section  129 reinvestigation, 
demonstrating that it had the opportunity to defend its interests.624 
7.244.   India's  case is premised on its assertion that the USDOC failed to  analyse the facts 
regarding : (a) the diversification of the industrial sector in India , and (b) the length of time for which 
the "provision of iron ore by NMDC  programme was in operation, when assessing whether that 
programme was de facto  specific" .625 It is clear to us, however, that the USDOC's  Preliminary 
Determination referred to the fact that the NMDC was established in 1958626, which was a key 
 
Determination appears to merely extrapolate upon the reasons why using the putative public  body's  prices 
would be improper in this case. ( Final Determination, (Exhibit IND -60), p.  14). 
618 The USDOC stated "[we] … preliminarily determine that using the NMDC prices at issue ( e.g., the 
iron ore prices the NMDC charged to Japanese buyers during the POR) would be unreliable  and would result in 
an inadequate compariso n", and that "  the Depa rtment preliminarily determines to exclude the prices at issue 
not solely because they originated from the GOI, but because they were set by the NMDC, the very public body  
whose iron ore for LTAR program the Department is evaluating". (Preliminary Determin ation, (Exhibit IND -55), 
pp. 11 and 14 (emphasis added)). It is clear to us that the USDOC identified reliability issues with using the 
NMDC's  export prices due to it being the very public body at issue as the factual basis for its Preliminary 
Determinatio n. 
619 Case brief, (Exhibit IND -57), pp. 35 and 37 (quoting Appellate  Body Report, US – Carbon Steel 
(India) , para.  4.165). (emphasis omitted)  
620 See above paras. 7.40 and 7.46-7.49. 
621 United  States'  first written submission, para.  394; second written submission, para.  237. See also 
first written submission, para.  395: "[b]ecause this underlying information was available on the record, India 
had ample opportunity to respond to suc h disclosure of information".  
622 United  States'  first written submission, para.  395. 
623 United  States'  second written submission, para.  237. 
624 United  States'  second written submission, para.  237. 
625 India's  first written submission, para.  205. 
626 Preliminary Determination, (Exhibit IND -55), p.  6. 
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  consideration in its "length of time" explanation.627 Likewise, the USDOC's  Preliminary Determination 
referred to multiple industrial activities being undertaken in the Indian economy, including the 
development of "coal, petroleum oil and atomic minerals", as well as mining iron ore, and domestic 
steel production to serve increasing consumption "as the country builds out its infrastructure in the 
coming decades".628 This correlates to the facts ultimately relied upon by the USDOC in its Final 
Determination concerning the "diversification of the industrial sector in India" covering sectors such 
as "[n]on -metallic mineral products", "[r]ubber, plastic, petroleum and coal", "[b]asic metal and 
alloy industries", and "[m]ining and [q]uarrying".629 
7.245.   These facts were not assessed by the USDOC  as part of a dedicated discussion of whether 
the NMDC's  sales of high -grade iron ore were de facto  specific. However, in the circumstances of the 
present claim, we do not consider this to have been necessary in order to comply with Article  12.8 
of the SCM  Agreement. We recall in this regard that India's  claim pertains to the disclosure of facts 
on the two mandatory factors under Article  2.1(c). This provision requires that "account be taken 
of" the two mandatory factors, but it is not prescriptive as to th e manner in which this is carried out. 
Indeed, as we have explained earlier, an assessment of these factors can be implicit630, and likewise 
they can potentially be addressed through other aspects of a determination631, e.g. when identifying 
the features of th e financial contribution at issue. Against that background, the USDOC sufficiently 
disclosed the essential facts that were under consideration for the purposes of its de facto  specificity 
analysis regarding the NMDC's  sales of high -grade iron ore through i ts reference to the 
aforementioned evidence in the Preliminary Determination. While these references were in aspects 
of the "public body" determination for the NMDC and the specificity determination for a different 
subsidy programme, we recall that Article  12.8 does not require the disclosure of an authority's  legal 
reasoning. Rather, it requires the disclosure of the essential facts under consideration, such tha t an 
interested party or interested Member can defend its interests. As we have explained, the P reliminary 
Determination disclosed sufficiently that the USDOC was considering the fact that the NMDC had 
been operating as a miner of iron ore since 1958, and that the industrial sector in India was 
comprised of a number of different activities. It was op en to the GOI or any interested party to 
contest the veracity, accuracy, or completeness of those facts, and seek to correct any errors in 
relation to those facts and how they were being understood.632 We consider it significant, in that 
regard, that the GOI  did indeed defend its interest by addressing the "length of time" and "extent of 
diversification" in its case brief.633 We thus conclude that India has not demonstrated that the USDOC 
acted inconsistently with Article  12.8 of the SCM  Agreement on this point . 
7.246.   For all of the foregoing reasons, we find that India has not demonstrated that the USDOC 
acted inconsistently with Article  12.8 of the SCM  Agreement.  
7.8  New Subsidies: India 's claims under Articles  21.1 and 21.2 of the SCM  Agreement  
7.8.1   Introduction  
7.247.   India claim s that the USDOC expanded the scope of the original CVD determination by 
including new subsidies in the 2004, 2006,  and 2007 administrative reviews and in the Section  129 
proceedings without showing the existence of a "close link or nexus" between those ne w subsidies 
and the ones examined in the original investigation. We will first address India 's claims concerning 
 
627 Final Determination, (Exhibit IND -60), p.  33. 
628 Preliminary Determination, (Exhibit IND -55), pp.  6 and 8 -9. 
629 Final Determination, (Exhibit IND -60), pp.  31-32. 
630 See above para. 7.211 . This depends, of course, on the circumstances of a given case.  
631 See above para. 7.210 . This depends, of course, on the circumstances  of a given case.  
632 India's  second written submission, para.  250: "Article  12.8 is intended to provide the interested 
parties with the necessary i nformation to enable them to comment on the completeness and correctness of the 
facts being considered by the investigating authority, provide additional information or correct perceived 
errors, and comment on or make arguments as to the proper interpretat ion of 'those facts '". (fn omitted)  
633 Case brief, (Exhibit IND -57), pp. 7-8. The GOI's choice to defend its interests in relation to these 
factors by claiming that they were not addressed does not change our conclusion. In our view, the Preliminary 
Determi nation disclosed sufficiently that the USDOC was considering the fact that the NMDC had been 
operating as a miner of iron ore since 1958, and that the industrial sector in India was comprised of a number 
of different activities, as part of its overall dete rmination as to whether to apply CVDs. It was open to the GOI 
or any interested party to contest the veracity, accuracy, or completeness of those facts, and seek to correct 
any errors in relation to those facts and how they were being understood.  WT/DS436/ RW 
 
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  the 2004 to 2007 administrative reviews, and then turn to India 's "new subsidies" claim in relation 
to the USDOC 's Section  129 Determination.  
7.8.2   India's "new subsidies" claims concerning the 2004, 2006,  and 2007 administrative 
reviews  
7.248.   In this section, we will examine India's claims concerning the alleged failure by the USITC 
to establish a "close link or nexus" between the subsidies investigated in the original determination 
and those investigated in the 2004 to 2007 administrative reviews. To do this, we will first summarise 
the unappealed panel findings in the original proceedings concerning the inclusion of "new subsidies" 
in the 2004 to 2007 admi nistrative reviews, before turning to the parties' arguments and our 
evaluation of the matter.  
7.8.2.1   Original proceedings  
7.249.   In the original proceedings, India claimed that the United  States  violated, inter alia , 
Articles  21.1 and 21.2 of the SCM  Agreement  by examining new subsidies allegations in 
administrative reviews.634 Before the original panel, India argued that administrative reviews are 
limited to the correction or re -examination of the determinations related to subsidization and injury 
that already exist.635 Accordingly, India held the view that an investigating authority cannot review 
subsidy programmes that were not examined in the original investigation ("new subsidies") , in the 
context of an administrative review .636 The original panel rejec ted India 's claim, finding that the 
scope of an administrative review is not necessarily limited to the specific subsidy programmes that 
had been formally examined in the original investigation. The panel explained that nothing in 
Article  21.1 suggests tha t the term "subsidization" does not encompass newly alleged subsidy 
programmes.637 Furthermore, the original panel found nothing in Articles  21.1 and 21.2 of the 
SCM Agreement  that would require an investigating authority to consider only whether the origina l 
basis for the measure alone justifies the continued imposition of the duties.638 According to the 
original panel, if there is an allegation that new subsidy programmes benefit the product that was 
already subject to CVDs  and these programmes are countervai lable, interested parties may request 
the investigating authority to take these subsidies into account and to amend the duty level 
accordingly.639 
7.250.   India did not appeal the panel 's finding that an investigating authority may examine new 
subsidy allegations in  administrative reviews, nor did it challenge the precise considerations that the 
USDOC took into account when deciding to examine the new subsidy allegations.640 The 
Appellate  Body also confirmed that Articles  21.1 and 21.2 of the SCM  Agreement  permit an 
investigating authority to examine new subsidy allegations in the context of an administrative 
review.641 In the context of an appeal by India concerning the applicability of inter alia  Article  22 to 
the USDOC's  review of new subsidy allegations, the Appellate  Body however held that the types of 
new subsidies that could be properly examined  in an administrative review are limited to those with 
a sufficiently close link or nexus with the subsidies examined in the original investigation.642 
According to the Appellate  Body, several factors could be considered in that regard on a case -by-case 
basis.643 The Appellate  Body did not examine whether the contested new subsidies were sufficiently 
 
634 Panel R eport, US – Carbon Steel (India) , para.  7.481.  
635 Panel Report, US – Carbon Steel (India) , para.  7.492.  
636 Panel Report, US – Carbon Steel (India) , para.  7.492.  
637 Panel Report, US – Carbon Steel (India) , para.  7.503.  
638 Panel Report, US – Carbon Steel (India) , para.  7.505.  
639 Panel Report, US – Carbon Steel (India) , para.  7.506.  
640 Appellate  Body Report, US – Carbon Steel (India) , para.  4.511.  
641 Appellate  Body Report, US – Carbon Steel (India) , para.  4.540.  
642 Appellate  Body Report, US – Carbon Steel (India) , para. 4.543.  
643 Appellate  Body Report, US – Carbon Steel (India) , fn 1256:   
We note that, in the instant dispute, the Panel took into account the fact that the specific new 
subsidy allegations involved the same product at issue in the original investigation. (See Panel 
Report, paras.  7.500 and 7.506) We further note that, in response to questioning at the oral 
hearing, the United  States and the European  Union suggested that, in their view, for new subsidy 
allegations to be considered in an admin istrative review, they should share the following 
elements with the original subsidies subject of the countervailing duty: (i) the same Member; 
(ii) the same responding companies (beneficiaries of the subsidies); and (iii) the same products. 
In addition, t he European  Union referred to other potential considerations such as the nature of a 
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  linked with the subsidies investigated in the original investigation, as r equired by Article  21, because 
India had not  raised any appeal under this provision.644 
7.251.   In the original WTO proceedings, therefore, India did not specifically claim that the USDOC 
failed to establish the existence of a "sufficiently close link" or "nexus" be tween new subsidy 
program mes in the 2004, 2006, and 2007 administrative reviews and the subsidies that were the 
subject of the original investigation.  
7.8.2.2   The Panel 's evaluation of India 's claim regarding the inclusion of "new subsidies" 
in the 2004, 2006,  and 2007 reviews  
7.252.   India argues before this compliance Panel that the United  States  violated Articles  21.1 and 
21.2 of the SCM  Agreement  by expanding the scope of the original investigation by 4 new 
program mes in the 2004 administrative review, 16 new program mes in the 2006 administrative 
review, and 3 new program mes in the 2007 administrative review.  
7.253.   According to India, an investigating authority cannot initiate administrative reviews under 
Article  21 of the SCM  Agreement  for the first time against a n ew subsidy without establishing a 
"sufficiently close link" or "nexus" between this new subsidy program me and the subsidies that were 
the subject of the original investigation.645 India asserts that , to conclude that a sufficiently close 
link or nexus exists  with the subsidies that constituted the subject of the original determination,  an 
investigating authority should at least examine the following characteristics of "new subsidies" : (a) 
the subsidy program me and its features ; (b) the nature of the subsidy ; (c) the granting authority of 
the subsidy ; and (d) whether the new subsidy is a replacement program me.646 India contends that 
the USDOC in its Section  129 Determination failed to engage in that kind of exercise with respect to  
the new subsid y program mes examined in the 2004, 2006, and 2007 administrative reviews.647 
7.254.   India acknowledges that it did not allege in its appeal which of the factors identified by the 
Appellate  Body should have been considered by the USDOC when examining "new subsidies". In  that 
regard, India argues that its appeal was limited in scope and that, therefore, it is not reagitating the 
same issue again.648 India maintains that the challenged elements are an integral part of the 
measure taken to comply, because t he quantum of benefits accruing to the product concerned in 
the CVD investigation and subsequent reviews has been redetermined in the Section  129 
proceedings. Therefore, India maintains that it is not precluded from challenging the new subsidies 
included in the 2004, 2006,  and 2007 administrative reviews.649 
7.255.   The United  States  objects that India is precluded from raising claims before a compliance 
panel against an unchanged aspect of a measure that was found to be WTO -consistent in the original 
proceedings.650 In this regard, the United  States  notes that the original panel rejected India 's claims 
against the examination of new subsidies in administrative reviews.651 Furthermore, the 
United  States  notes that India did not ask the Appellate  Body in the original proceedings to find that 
the USDOC acted in breach of Article  21 by failing to properly examine each of the new subsidy 
allegations at issue and cannot now bring claims that it should have raised before.652 In addition, 
having failed to make  a prima facie  case in the original proceedings as regards aspects of a measure 
that remained unchanged, India cannot relitigate the same claim in compliance proceedings.653 
Finally, the United  States  maintains that the USDOC was not required to analyse whet her the new 
subsidy program mes in the administrative reviews had a sufficient link or nexus with the schemes 
examined in the original determination, because there was no DSB recommendation requiring such 
 
subsidy, whether the same or a different granting authority or the same or a different subsidy 
programme is involved, or whether a subsidy has been replaced by another sub sidy. 
(European  Union's  third participant's  submission, paras.  70 and 71).  
644 Appellate  Body Report, US – Carbon Steel (India) , para.  4.543.  
645 India's  first written submission, para.  185. 
646 India's  first written submission, para.  191. 
647 India's  first writte n submission, para.  191. 
648 India's  second written submission, para.  212. 
649 India's  second written submission, para.  215. 
650 United  States'  first written submission, para.  334. 
651 United  States'  first written submission, para.  341. 
652 United  States'  first writ ten submission, para.  344. 
653 United  States'  second written submission, para.  197. 
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  action.654 For these reasons, the United  States  reques ts the Panel to reject the new subsidies claims 
concerning the 2004, 2006,  and 2007 administrative reviews.  
7.256.   The key question is whether India can bring a claim in these compliance proceedings 
regarding the same subsidies and legal provisions as a claim tha t the Panel dismissed in the original 
proceedings, and that was not subsequently appealed.  
7.257.   The United  States ' objection that India 's claim was not properly brought in the context of 
these compliance proceedings is twofold. First, the United  States  argues that the alleged "new 
subsidies" examined in the 2004, 2006, and 2007 reviews are unchanged aspects of the original 
proceedings that were not found to be WTO -inconsistent. Thus, the United  States  argues that India 
failed to make a prima facie  case in the o riginal proceedings and cannot relitigate the same claim 
regarding an unchanged element of the measure in compliance proceedings. Second, the 
United  States  argues that India had the opportunity to appeal the panel 's findings of 
non-inconsistency and opted not to do so. Accordingly, India should not be given an unfair second 
chance to raise the matter in the context of compliance proceedings. India 's main response to the 
United  States ' objection, essentially, is that the USDOC redetermined in the compliance proceedings 
the quantum of benefits accruing to the product concerned and therefore India should not be 
precluded from challenging the "new subsidies" featuring in the 2004, 2006 , and 2007 reviews.  
7.258.   We disagree with the United  States ' argument that India is trying to relitigate the absence 
of a "sufficient nexus" between the new subsidies countervailed pursuant to the 2004 to 2007 
administrative reviews and those examined in the original investigation. In fact, as the 
Appellate  Body recogni zed, the "sufficient nexus" was not part of the scope of India 's appeal. Nor 
could it be, since the notion of a "sufficiently close link or nexus" between the subsidies investigated 
in an administrative review and those subject to the original determinatio n first emerged when the 
Appellate  Body report in the original dispute was circulated. Therefore, India could not have raised 
it at that time. In other words, India cannot be attempting to re-litigate an issue that it never litigated 
in the first place.  
7.259.   The remainder of the United  States ' objection, however, is more pertinent. We note that 
India, in principle, could have appealed the panel 's findings and did not. As discussed earlier655, 
unappealed panel findings that are adopted by the DSB must be regarded a s the final resolution to 
a dispute between the parties in respect of the specific claim and the components of the measure 
that are the subject of that claim.656  
7.260.   Before the original panel, India claimed that the inclusion of "new subsidies" in the 2004 to 
2007 administrative reviews was inconsistent with Articles  21.1 and 21.2 of the SCM  Agreement , 
arguing that the scope of administrative reviews should be limited to subsidies already subject to 
the original determination. The United  States  prevailed before the original panel and those findings 
were not appealed. However, India prevailed on certain other claims concerning the original 
determination and the administrative reviews. As a result, the USDOC and the USITC initiated 
Section  129 proceedings, with a v iew to bringing the measure(s) into conformity with the 
DSB recommendation. As the DSB recommendation did not concern the consideration of "new 
subsidies" in the 2004 to 2007 administrative reviews, however, the USDOC was entitled to consider 
that aspect o f its previous determinations as not being WTO-inconsistent, hence not in need of being 
reassessed.  
7.261.   The inclusion in the Section  129 Determination of the "new subsidies" previously 
investigated in the 2004 to the 2007 reviews is an unchanged aspect of the original measure 
reviewed in the original WTO proceedings, separable from the measure taken to comply with the 
DSB recommendation.657 As a result, this separable aspect of the original measure cannot and should 
not be reviewed for the first time by a compliance panel.  
 
654 United  States'  second written submission, para.  203. 
655 See above para. 7.15. 
656 Appellate  Body Report, EC – Bed Linen ( Article  21.5 – India) , para.  93. See also Panel Report, US – 
Large Civil Aircraft (2nd complaint)  (Article  21.5 – EU), para.  7.30. See also para. 7.170 . Compliance 
proceedings under Article  21.5 cannot be used to "re -open" issues that were decided on the merits in the 
original proceedings. This would disrupt the finality of DSB  rulings, contrary to Article  17.14 of the DSU.  
657 Appellate  Body Report, EC – Bed Linen ( Article  21.5 – India) , paras.  85-86. WT/DS436/ RW 
 
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  7.262.   We note that India could not have anticipated that the Appellate  Body would elaborate a 
new test for the consistency of administrative reviews with Articles  21.1 and 21.2 of the 
SCM Agreement , suggesting that administrative reviews could only include those new subsidies 
having a sufficiently close link or nexus with the subsidies subject to the original determination. 
Howev er, India still had the opportunity to appeal the panel 's findings based on various other 
arguments and did not do so.  
7.263.   A different conclusion would imply that the USDOC should have assumed that an aspect of 
a measure that was found to be WTO -consistent in unappealed panel findings needed to be amended. 
Such conclusion would be highly questionable, and at odds with the role assigned by the Members 
to the WTO dispute settlement system as a central element in providing security and predictability 
to the multi lateral trading system.658 Finally, we further note that, in practical terms, a finding of 
inconsistency at the compliance stage would have the effect of depriving the United  States  of a 
reasonable period of time to bring its measure into conformity, and wou ld thus be excessively 
burdensome.659 For the foregoing reasons, we conclude that India 's claim concerning the 
USDOC 's investigation of "new subsidies" in the 2004 to 2007 administrative reviews is outside the 
scope of these compliance proceedings.  
7.8.3   "New subs idies" in the Section  129 Determination  
7.264.   In this section, we will examine India's claims concerning the alleged inclusion of "new 
subsidies" in the Section 129 proceedings, different from the subsidies investigated in the original 
determination and in subse quent administrative reviews. We will first provide an overview of the 
factual background, before turning to the parties' arguments and our evaluation of the matter.  
7.8.3.1   Factual background  
7.265.   In the original dispute, the panel found that the USDOC did not have a sufficient basis to 
determine the existence of the "captive mining of iron ore" programme, and that  the USDOC  
therefore acted inconsistently with Article  12.5 of the SCM  Agreement .660 The panel also found that 
the USDOC 's determination that GOI granted Tata a financial contribution in the form of a lease 
under the "captive mining of coal" programme lacked a sufficient evidentiary basis and was therefore 
inconsistent with Article  1.1(a)(1)(iii) of the SCM  Agreement .661 
7.266.   The United States  launched Section  129 proceedings to revise parts of the original 
CVD determination and subsequent reviews that were found to be WTO -inconsistent by the panel 
and the Appellate  Body in the original dispute. With specific regard to India 's claim b efore us, the 
USDOC re -evaluated two subsidy schemes on which the original panel had made findings of 
inconsistency. Since the parties disagree as to whether this exercise led to the investigation of two 
"new subsidies", distinct from the ones originally i nvestigated in the 2006 administrative review, it 
is important to summari ze the background of the Section  129 USDOC determination and of the 
underlying 2006 administrative review.  
7.267.   In the 2006 administrative review, the USDOC found that the GOI 's provision of mining 
rights of iron ore to Indian steel companies was a countervailable subsidy, because it constituted a 
good (iron ore) provided by a public entity (GOI) to steel makers for LTAR. The program me was 
described as the allocation of iron mines to steel makers so that they could extract iron ore (integral 
to the production of steel) without the intermediation of standalone miners, hence the adjective 
"captive". The USDOC found that the program me was de facto  specific because of the predominant 
use of iron  ore by the steel industry.662 The USDOC found evidence of the existence of a national 
mineral policy in the Dang Report663 and in the Hoda Report .664 The original panel found this  
 
658 Article  3.2 of the DSU.  
659 Panel Report, EC and certain member States – Large Civil Aircraft (Article  21.5 – US), para. 6.81. 
See also Appellate  Body Report, US – Softwood Lumber IV (Article  21.5 – Canada) , para. 74. 
660 Panel Report, US – Carbon Steel (India) , para.  7.217.  
661 Panel Report, US – Carbon Steel (India) , para.  7.252.  
662 2006 Preliminary results of  CVD administrative review , (Exhibit IND -32), p.  1591; 2006 Issues and 
decision memorandum , (Exhibit IND -38), p.  63. 
663 Excerpt from Dang Report, Expert Group Report , (Exhibit IND -67). We note that this exhibit is an 
extract from the Dang Report, (Exhibit U SA-2). 
664 Hoda Report , (Exhibit IND -66). 
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  determination to be inconsistent with Article  12.5 of the SCM  Agreement , because the USDOC failed 
to determine the existence of the "captive mining of iron ore" programme on the basis of accurate 
information.665 
7.268.   In the Section  129 proceedings, the USDOC re -examined the record of the investigation and 
concluded that the provisio n of mining rights of iron ore was limited to two industries: steel producers 
and standalone miners. The USDOC relied on the same record evidence as in the 2006 administrative 
review and continued to characterize the investigated scheme as the provision of  a good (iron ore) 
provided by a public entity (GOI) for LTAR. The USDOC, however, no longer found specificity on the 
basis of "predominant use" by steel companies, but instead on the limited number of users (steel 
producers and mining companies ). Therefor e, the USDOC concluded that the provision of "mining 
rights of iron ore" was de facto  specific, and thus countervailable.666 The USDOC referred to the 
subsidy scheme as "captive mining of iron ore" in the preliminary Section  129 Determination667, and 
then chan ged the name to "mining rights of iron ore" in the final Section  129 Determination.668 
7.269.   In the 2006 administrative review, the USDOC investigated the GOI 's provision of coal to 
firms with captive mining rights for LTAR under the Nationalization Act of 1973. T he original panel 
found that the USDOC lacked a "sufficient evidentiary basis" to conclude that Tata was granted a 
coal mining lease based on the above -mentioned legislation.669 The original panel held:  
We observe that there would appear to be sufficient evi dence on the USDOC 's record 
for a determination that Tata is presently mining coal under a lease that has validity in 
Indian law, and could therefore be attributed to the GOI. Provided the relevant 
requirements of the SCM  Agreement  are complied with, we se e no reason why the 
provision of coal under that lease could not be countervailed. However, the 
USDOC 's determination that the Coal Mining Nationalization Act/Captive Mining of Coal 
Programme is de jure  specific would obviously not be relevant in this cont ext.670 
7.270.   In the Section  129 proceeding, the USDOC re -examined the record evidence, and issued 
supplemental questionnaires to the interested parties, including the GOI and Tata. The USDOC 
concluded that the Raja of Ramgarh (the governmental authority at the ti me) granted Tata the coal 
mining lease in 1907. When India became independent in 1947, the GOI replaced the Raja of 
Ramgarh as the governmental authority. The USDOC further found that, under the Bihar Land 
Reform Act in 1950, the existing leases and sublea ses including the coal mining lease to Bakaro & 
Ramgur and the sublease to West Bokaro Ltd. (the predecessor to Tata) were deemed to have been 
leased by the State Government of Bihar to the leaseholder. The GOI then recognized the validity of 
all leases is sued by the Raja of Ramgarh. Under the MMDR Act of 1957, the GOI became the only 
entity with the ability to provide leases, requiring that all new mining licences be obtained from the 
GOI. The USDOC also found that, pursuant to the MMDR Act of 1957, pre -existing leaseholders could 
continue to hold their leases and did not need to renegotiate them with the GOI. In short, the USDOC 
found that the GOI legislated an exemption for pre -existing leaseholders, allowing Tata to continue 
to hold the original coal m ine lease and replacing the Raja of Ramgarh with the State Government 
of Bihar as the authority providing the lease.671 The USDOC thus found that the GOI, in allowing 
Tata to retain its original lease, provided a financial contribution. The USDOC, based on t he evidence 
before it, concluded that the program was de facto  specific.  
7.8.3.2   The Panel 's evaluation of India 's "new subsidies" claims concerning the 
Section  129 proceedings  
7.271.   India argues that the United  States  expanded the scope of Section  129 proceedings by 
including two new program mes that were not previously subject to the original 
determination:  "mining rights of iron ore"; and "mining of coal".672 India submits that an 
 
665 Panel Report, US – Carbon Steel (India) , para.  7.217.  
666 Final Determination, (Exhibit IND -60), pp.  22-25. 
667 Preliminary Determination, (Exhibit IND -55), p.  7. 
668 Final Determination, (Exhibit IND -60), p.  21. 
669 Panel Report, US – Carbon Steel (India) , para.  7.252.  
670 Panel Report, US – Carbon Steel (India) , fn 458. 
671 Final Determination, (Exhibit IND -60), pp.  27-28. 
672 India's  first written submission, para.  181. 
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  administrative review cannot examine for the first time a new subsidy tha t does not have a 
sufficiently close link or nexus with the subsidies countervailed in the original investigation.673 
According to India, the USDOC was mandated to examine, at least, the following characteristics : (a) 
the subsidy programme and its features ; (b) the nature of the subsidy ; (c) the granting authority ; 
and (d) whether the new subsidy is a replacement program me.674 India submits that the 
United  States  failed to engage in such an exercise. India thus argues that the "new subsidies" 
investigated and c ountervailed in the Section  129 proceedings are completely different from and 
broader in scope than the "captive mining of iron ore" and the "captive mining of coal", which were 
countervailed pursuant to the 2006 administrative review.675 India also contends  that the granting 
authority for the subsidy program mes subject to the original investigation and the new subsidies 
investigated and countervailed in the Section  129 proceedings are different, and so is the nature of 
the subsidies.676 
7.272.   The United  States  argues that the Panel should dismiss India 's claims concerning the alleged 
investigation of two new subsidy schemes in the USDOC 's Section  129 proceedings on three main 
grounds. First, the United  States  maintains that the USDOC did not investigate new subsidies in its 
Section  129 proceedings.677 According to the United  States , the Section  129 Determination concerns 
program mes that were already investigated in the 2006 admini strative review678, and the USDOC 
only re -evaluated certain aspects of those program mes as a result of the original panel 's findings.679 
With regard to "mining rights of iron ore", the USDOC re -examined the record evidence and decided 
that India had mining pro grammes for iron ore that were not limited to captive mining.680 The 
United  States  argues that the program me concerned the GOI 's grant of mining leases of iron ore to 
the steel industry, which thereby benefitted the same product that was investigated in the original 
investigation (hot -rolled carbon steel flat products).681 In addition, the United  States  argues that the 
mining rights of  the iron ore program me also involved the granting of a mining lease by the GOI, 
the government at issue in the original investi gation, and benefitted the same product from the 
original investigation.682 Concerning "mining of coal", the USDOC re -evaluated the record evidence 
and issued a supplemental questionnaire to Tata and the GOI. Based on a re -examination of the 
record evidence,  the USDOC established the validity of Tata 's coal mining lease.683  
7.273.   Second, the United  States  argues that India has not demonstrated the absence of a "link" 
or "nexus" between the program mes investigated in the Section  129 proceedings and other s that 
were investigated in the 2006 administrative review.684 According to the United  States , India only 
made conclusory statements and failed to make a prima facie  case of violation of Articles  21.1 and 
21.2 of the SCM  Agreement .685 Should the Panel consider the two program mes to be "new 
subsidies", the United  States  submits that its Section  129 Determination i s consistent with 
Articles  21.1 and 21.2 of the SCM  Agreement . According to the United  States , the USDOC 
established the existence of a link or nexus between the "new subsidies" and the program mes 
investigated in the 2006 administrative review, because the y involve the same government, the 
same responding companies , and the same products.686 
7.274.   Third, the United  States  argues that India is proposing an unduly rigid standard to determine 
whether there exists  a sufficiently close link or nexus between the "new" su bsidies and the previously 
investigated ones.687 According to the United  States , the evaluation should be made on a 
 
673 India's  first written submission, para.  185. 
674 India's  first written submission, para.  191. 
675 India's  first written submission, para.  192; second written submission, para.  218. 
676 India's  second written submission, para.  227. 
677 United  States'  first written s ubmission, para.  348. 
678 United  States'  first written submission, para.  352. 
679 United  States'  first written submission, paras.  354-355; second written submission, para.  211. 
680 United  States'  first written submission, para.  355; second written submission, pa ra. 212. 
681 United  States'  second written submission, para.  211. 
682 United  States'  second written submission, para.  212. 
683 United  States'  first written submission, para.  356. 
684 United  States'  first written submission, para. 360. 
685 United  States'  first written submission, para.  360. 
686 United  States'  first written submission, paras.  361-368. 
687 United  States'  first written submission, para.  368. 
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  case-by-case basis, and different factors could be potentially taken into account according to the 
specific circumstances of the case.688 
7.275.   The ke y question for this Panel is thus whether "mining rights of iron ore" and "mining of 
coal" constitute new subsidies, investigated for the first time in the Section  129 Determination.  
7.276.   With regard to "mining rights of iron ore", we note that the USDOC used a different  name 
for the subsidy scheme compared to the one used in the 2006 administrative review ("captive mining 
of iron ore"). We further note that the subsidy scheme investigated in the 2006 determination and 
the scheme investigated in the Section  129 proceedings differ with regard to the findings on 
specificity, wherein the former was considered to be available to captive miners and the latter to 
steel producers and mining companies. We do not consider these differences to be sufficient to 
qualify "mi ning rights of iron ore" as a new subsidy. Regarding the change in the title, it amounts to 
a means for identifying the scheme used by the investigating authority. As India concedes in its 
second written submission, "nomenclature alone may not be sufficien t to establish if the programs 
were indeed new subsidies".689 The changes in the findings on specificity are not dispositive either. 
We note that the notions of "subsidy" and "specificity" are separate, as it is evident from the 
structure of the SCM  Agreemen t. While Article  1 of the SCM  Agreement  is concerned with the 
"Definition of a Subsidy", Article  2 is entitled "Specificity". In particular, Article  2 is concerned with 
the circumstances in which a subsidy may be determined to be specific. It follows that a modification 
to the conclusions on specificity need not amount to a change in the underlying subsidy. In addition, 
the modification of the findings on specificity had no impact on the identification of the companies 
subject to CVD duties. The record evid ence reveals that the USDOC reopened the file of the 
investigation in response to the original panel 's findings of inconsistency. The challenged subsidy 
scheme is thus the same program me that was countervailed pursuant to the 2006 administrative 
review, sa ve for the non -dispositive differences that we have previously recalled. Based on the 
foregoing, we find that "mining rights of iron ore" is not a new subsidy compared to "captive mining 
of iron ore".  
7.277.   Concerning  "mining of coal", the USDOC essentially reli ed on the same record evidence, 
issuing supplemental questionnaires to obtain  clarifications from the parties. The USDOC continues 
to find that the GOI granted a coal mining rights lease to Tata. Therefore, we find that "mining of 
coal" is not a new subsid y compared to "captive mining of coal".  
7.278.   For the reasons spelled out above, we reject India 's claim that "mining rights of iron ore" 
and "mining of coal" constitute new subsidies. On the contrary, we note that these programmes are 
essentially the same  that the USDOC investigated  in the 2006 administrative review. While the 
USDOC  modified its  analysis of these  programmes to implement the ruling and recommendation of 
the DSB, the changes in the USDOC 's analysis are not dispositive and do not justify treating t hese 
schemes as new subsidies. We acknowledge that the characterization of certain aspects of the 
specificity determinations has changed from the 2006 administrative review . However,  we are not 
persuaded that these changes led to a more remote link between  the subsidies subject to the original 
CVD investigation and those investigated in the 2006 administrative review and carried over in the 
Section  129 proceedings.  
7.279.   In light of the above, the question as to whether or not the USDOC complied with any 
applica ble legal standard in examining new subsidies in comparison with the subsidies countervailed 
pursuant to the original investigation is not relevant for the purpose of these compliance 
proceedings. Having prevailed on the "new subsidies" claims in the origi nal dispute, the 
United  States  was not expected to evaluate or re -evaluate the existence of a close link or nexus 
between "mining rights of iron ore" and "mining of coal" with the subsidies countervailed pursuant 
to the original investigation. This is not to say that "mining rights of iron ore" and "mining of coal" 
could not be challenged  at the compliance stage. India, in fact, was not prevented from bringing 
claims concerning  new elements emerged in the Section  129 proceedings concerning the two subsidy 
schemes concerned. However, since they are the same subsidies as those already investigated in 
the 2006 administrative review, and since the United  States  prevailed in the original proceedings 
with regard to the incl usion of those new subsidies in the 2006 administrative review, the USDOC 
was not obligated by a DSB recommendation to conduct a new inquiry in the Section  129 
 
688 United  States'  first written submission, para.  368. 
689 India's  second written submission, para.  218. WT/DS436/ RW 
 
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  proceedings to establish the presence of a close link or nexus with the subsidies investigated i n the 
original CVD proceedings.  
7.8.4   Conclusion  
7.280.   For the reasons explained above, we conclude that India 's claim concerning  the 
USDOC 's investigation of "new subsidies" in the 2004, 2006,  and 2007 administrative reviews is 
outside the scope of these compliance p roceedings. We also conclude that the USDOC did not 
investigate new subsidies in the Section  129 proceedings , and therefore we conclude that India failed 
to demonstrate that the United  States  acted inconsistently with Articles  21.1 and 21.2 of the 
SCM Agreement . 
7.9  India 's claim that the United  States ' failure to amend 19 USC § 1677(7)(G)(i)(III) is 
inconsistent with the DSB recommendation in this dispute  
7.9.1   Introduction  
7.281.   India claims that the United  States  failed to remove or amend 19 USC § 1677(7)(G)(i)(III), 
which the Appellate  Body in the original dispute found  to be "as such" inconsistent with 
Articles  15.1-15.5 of the SCM  Agreement .690 Accordingly, India requests that this Panel conclude 
that the United  States  has failed to implement the relevant DSB recommendation.691 
7.282.   In its first written submission, the United  States  requests us to reject India 's claim because 
19 USC § 1677(7)(G)(i)(III) is not a measure within the Panel 's terms of reference.692 In evaluating 
India's claim, we first address the United  States ' objection concerning the Panel 's terms of reference 
before turning to the merits of India 's claim.  
7.9.2   Whether India 's claim is within the Panel 's terms of reference  
7.283.   The United  States  notes that India 's panel req uest, in relevant part, is concerned with the 
alleged failure to amend "19 USC § 1677(7)(G)(iii)".693 According to the United  States , this provision 
is entitled "Records in final investigations" and was not the subject of findings in the original dispute, 
which instead dealt with a different provision, 19 USC § 1677(7)(G)(i)(III).694 Therefore, the 
United  States  argues that a claim concerning 19 USC § 1677(7)(G)(iii) is outside the mandate of a 
compliance Panel under Article  21.5 of the DSU.695 Moreover, the United States  argues that to the 
extent that India seeks findings in relation to 19 USC § 1677(7)(G)(i)(III)  in its first written 
submission , that measure does not coincide with the measure listed by India in its panel request, 
and the Panel should therefore c onsider it to be outside its terms of reference.696 
7.284.   India rebuts that the consistency of 19 USC § 1677(7)(G)(i)(III) with Article  15 of the 
SCM Agreement  was an issue of law that was discussed in the original WTO proceedings.697 India 
notes that the Appellate  Body "inadvertently" misquoted the measure, and that this typographical 
error was carried over to India 's request for consultations and panel request.698 According to India, 
the typographical error cannot be ambiguous, since the Appellate  Body identified the  correct text of 
the measure and India 's panel request is clearly aimed at the United  States ' failure to amend a 
measure that requires the cross -cumulation of imports in certain circumstances.699 Therefore, India 
submits that the Panel should dismiss the United  States ' terms of reference objection.700 
 
690 India's  first written submission, para.  9 (referring to Appellate  Body Report, US – Carbon Steel 
(India) , para.  4.629).  
691 India's  first written submissio n, para.  32; second written submission, para.  34; and opening 
statement at the meeting of the Panel, para.  11. 
692 United  States'  first written submission, para.  43. 
693 United  States'  first written submission, para.  41 (referring to India's  panel request, par a. 8). 
694 United  States'  first written submission, paras.  41-42. 
695 United  States'  first written submission, para.  42. 
696 United  States'  first written submission, para.  43. 
697 India's  second written submission, paras.  10-14. 
698 India's  second written submission , paras.  16-17. 
699 India's  second written submission, paras.  19-20. 
700 India's  second written submission, para.  18. 
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  7.285.   Prior to addressing the United  States ' procedural objection, we consider it appropriate to 
review the background of India 's claim. In the original dispute, India requested consultations and 
brought claims again st the entire 19 USC § 1677(7)(G). The original panel found that the whole of 
19 USC §  1677(7)(G) was "as such" inconsistent with Articles  15.1-15.5 of the SCM  Agreement .701 
The Appellate  Body partially reversed the panel 's findings and concluded that only t he third 
Subsection  of 19 USC § 1677(7)(G)(i) clearly requires the cross -cumulation of imports when 
petitions to initiate CVD investigations or anti-dumping duty investigations are filed on one day and 
CVD investigations or anti-dumping duty investigations  are self -initiated by the investigating 
authority on the same day.702 Consequently, the Appellate  Body found that only the third 
Subsection  of 19 USC §  1677(7)(G)(i) is inconsistent as such with Article  15 of the 
SCM Agreement .703  
7.286.   Throughout the report, the Appellate  Body cites the inconsistent Subsection as 
"1677(7)(G)(iii)". However, the correct citation for the statute is "19 USC §  1677(7)(G)(i)(III)", as 
the United  States  rightfully notes in its first written submission. Despite the incorrect reference, t he 
Appellate  Body correctly extracted the text of the relevant provision of US  law and reproduced it in 
the report as follows:  
(G) Cumulation for determining material injury  
(i) In general  
For purposes of clauses (i) and (ii) of subparagraph (C), and subje ct to clause (ii), the 
Commission shall cumulatively assess the volume and effect of imports of the subject 
merchandise from all countries with respect to which –  
… 
(III) petitions were filed under section 1671a(b) or 1673a(b) of this title and 
investigations were initiated under section 1671a(a) or 1673a(a) of this title on the 
same day,  
if such imports compete with each other and with domestic like products in the 
United  States  market.704  
7.287.   Therefore, the reference to Section  1677(7)(G)(iii) throughout the Appellate  Body Report 
should be considered as a typographical error.  
7.288.   This typographical error  was repeated in  India's panel request (referring to the 
United  States ' failure to amend 19 USC § 1677(7)(G)(iii)) , but not in  India's first written submission 
(which uses the correct citation: 19 USC § 1677(7)(G)(i)(III)). We should now verify whether this 
discrepancy is sufficie nt to consider 19 USC § 1677(7)(G)(i)(III) as being outside of this compliance 
Panel 's terms of reference.  
7.289.   Article  6.2 of the DSU is the provision regulating the content of panel requests. It reads:  
The request for the establishment of a panel shall be mad e in writing. It shall indicate 
whether consultations were held, identify the specific measures at issue and provide a 
brief summary of the legal basis of the complaint sufficient to present the problem 
clearly. In case the applicant requests the establish ment of a panel with other than 
standard terms of reference, the written request shall include the proposed text of 
special terms of reference.  
7.290.   The requirement in Article  6.2 of the DSU to indicate the "specific measures at issue" in a 
panel request serves  the due process objective of notifying the parties and the third parties of the 
 
701 Panel Report, US – Carbon Steel (India) , para.  7.369.  
702 Appellate  Body Report, US – Carbon Steel (India) , para.  4.629.  
703 Appellate  Body Repo rt, US – Carbon Steel (India) , para.  4.629.  
704 Appellate  Body Report, US – Carbon Steel (India) , para.  4.617.  
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  measure(s) that constitute the object of the complaint.705 The relevant question for us is whether 
the erroneous citation of the US statute in India 's panel request creates unce rtainty as to the 
measures that are subject to compliance proceedings, thus impairing  the United  States ' due process 
rights.706 To respond to this question, we need to examine whether the panel request as a whole, in 
light of the attendant circumstances, per mits the identification of the "specific measures at issue" in 
accordance with Article  6.2 of the DSU.707 We further note that, in the context of compliance 
proceedings, the requirements of Article  6.2 of the DSU must be read in light of the nature of 
Article 21.5 proceedings.  
7.291.   In this regard, the Appellate  Body in US – FSC clarified that an Article  21.5 panel request is 
consistent with Article  6.2 of the DSU when : (a) it cites the DSB recommendations and rulings that, 
in the view of the complaining party, have not been complied with; (b) it identifies the measures 
taken to comply and any omissions; and (c) it provides the legal basis for the complaint, specifying 
how the measures taken to comply (or the respondent 's inaction) fail to remo ve the 
WTO-inconsistency.708 We agree with this approach and shall be guided by it in our own assessment 
of the matter . 
7.292.   India's panel request, in relevant part, reads:  
India considers that the United  States ' failure to amend 19 USC § 1677(7)(G)(iii) is 
incon sistent with the DSB recommendations in this dispute as well as Articles  15.1, 
15.2, 15.3, 15.4 and 15.5 of the SCM  Agreement  because the provision continues to 
require the United  States  International Trade Commission ("USITC") to cumulate the 
effects of s ubsidized imports with the effects of dumped, non -subsidized imports.  
7.293.   India's panel request concerns the failure to amend a measure of United  States ' law that 
continues to require the cross -cumulation of imports in injury assessments. India notes that the 
DSB recommended to bring that measure into compliance with the United  States ' obligations under 
Article  15 of the SCM  Agreement , but the United  States  did not act. According to India, the 
United  States ' omission does not cure the measure 's inconsistency wi th Article  15 of the 
SCM Agreement .709 In this regard, India explains that the misquotation of the statute is due to a 
typographical error carried over to the request for consultations and to the panel request from the 
Appellate  Body Report in the original d ispute.710 We find this explanation to be reasonable.  
7.294.   In this respect, the reference in the panel request to the recommendations on 
cross-cumulation is particularly compelling. In fact, the Appellate  Body found that the third 
subparagraph of 19 USC §  1677(7) (G)(i) is "as such" inconsistent with Article  15 of the 
SCM Agreement . The misquotation should not be overemphasized, because the panel request as a 
whole demonstrates how India identified with sufficient clarity the measure at issue, the relevant 
DSB recommendation , and the reasons why it believes that the United  States  failed to bring its 
measure into conformity with the latter.  
7.295.   We confirm this understanding also looking at  the attendant circumstances. In particular, 
we note that India and the United  States  discussed the matter at several DSB meetings  which took 
place prio r to the panel request . In those circumstances, notwithstanding India 's use of the wrong 
reference to the US  statute , the United  States  explained how it addressed the DSB recommendation 
concerning "19 USC §  1677(7)(G)(i)(III)" (i.e. using the correct refer ence).711 This is another 
indication that the United  States ' due process rights were not impaired by the typographical error.  
 
705 Appellate  Body Report, EC – Selected Customs Matter , para.  152. 
706 Panel Report, US – Zeroing (EC) (Article  21.5 – EC), paras.  8.20-8.32. 
707 For the notion of "attendant circumstances", see Panel Report, EC and certain member States – 
Large Civil Aircraft , paras.  7.138, 7.143 -7.144, and 7.150 (referring to Panel Report, US – Lamb , paras.  5.32 
and ff).  Attendant circumstances may include, and a re not limited to, discussions in committees, consultations, 
and the establishment of the panel by the DSB.  
708 Appellate  Body Report, US – FSC (Article  21.5 – EC II) , paras.  61-62. See, in this respect, 
European  Union's  third-party submission, para.  13. 
709 India's  panel request, para.  8. 
710 India's  second written submission, para.  17. 
711 DSB minutes WT/DSB/M/380, (Exhibit IND -63), paras.  4.3-4.4; DSB  minutes WT/DSB/M/385, 
(Exhibit IND -64), paras.  4.2-4.6. 
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  7.296.   Based on the foregoing, we consider that India 's panel request was sufficient to put the 
United  States  on notice as to the measure a t issue and the reasons for the claim. Therefore, we 
dismiss the United  States ' objection.  
7.9.3   Whether the United  States  complied with the recommendation to bring 19 USC 
§ 1677(7)(G)(i)(III) into conformity with the SCM  Agreement  
7.297.    To begin, we note the United  States'  contention that the Appellate  Body's  findings in the 
original proceedings do not constitute a valid basis for the DSB recommendation, because the 
Appellate  Body exceeded its powers under Article  17.6 of the DSU by not limiting its analysis to 
issues of law covered in the panel report.712  
7.298.   In accordance with Articles  16.4, 19.1, 21.1 , and 22.1 of the DSU, we consider that the 
Appellate  Body findings and unappealed panel  findings adopted by the DSB constitute the final 
resolution to a dispute between th e parties in respect of the specific claim and the components of 
the measure that are the subject of that claim. Past panels and the Appellate Body held the same .713 
7.299.   Against this background, compliance panels are expected to take DSB recommendations 
ensuing from adopted Appellate  Body or panel reports in original proceedings as a "given". 
Importantly, a compliance panel lacks the authority to review the Appellate Body' s findings in the 
original proceedings. Rather, once the Appellate  Body's  findings are adopted by the DSB, they 
become the "recommendations or rulings of the DSB ".714 The DSB has the singular "authority" under 
the DSU to "adopt panel and Appellate  Body repor ts", and "maintain surveillance of implementation 
of rulings and recommendations".715 The reopening by a compliance panel of a finding that had been 
adopted by the DSB in the original proceedings would run counter to the singular "authority" granted 
to the D SB under Article  2 to adopt such findings. It would also run counter to the requirement that 
a DSB recommendation be "implemented", which means "[t]o complete, perform, carry into effect 
(a contract, agreement, etc.); to fulfil (an engagement or promise)".716  
7.300.   Pursuant to Article  21.5 of the DSU, compliance panels are established when the  parties 
disagree as to "the existence or consistency with a covered  Agreement of measures taken to comply 
with the recommendations and rulings [of the DSB]". Compliance pane ls, therefore, have a very 
precise and limited task and do not have the authority to review the validity of the basis for DSB 
recommendations. Any analysis by this Panel concerning the merits of the original Appellate  Body 
report or the DSB recommendation would be irrelevant for the purposes of these compliance 
proceedings and would, at the very best, amount to an advisory opinion, which is not envisaged by 
the DSU.  
7.301.   Similar considerations apply  to the United  States'  argument that the Appellate  Body erred 
in finding that 19 USC § 1677(7)(G)(i)(III) is "as such" inconsistent with Article  15 of the 
SCM Agreement, because the text of the  US measure reveals an embedded discretion that it need 
not be enlivened, and relatedly, that there is a corresponding practice  of exercising that discretion 
in a way such that it has never been applied.717 Essentially, the United  States is requesting the Panel 
to reopen the findings of the Appellate  Body adopted by the DSB on the meaning of 19 USC § 
1677(7)(G)(i)(III) on the basis of this new argumentation. Article  17.14 of the DSU unequivocally 
states that adopted Appellate Body reports shall be "unconditionally accepted by the parties" to the 
dispute, unless the DSB decides, by consensus, not to adopt them. As Article  17.14 of the  DSU 
recognizes, Members keep the right to express their views on an Appellate Body report. The United 
States is therefore entirely entitled to express its concerns regarding the manner in which the 
Appellate Body has reached its conclusions. However, this  Panel can only take note of the 
United  States' arguments in that regard and does not have the authority to address them. The 
authority of a compliance panel is limited to a determination of whether the losing party to a dispute 
 
712 United States'  first written submission, para.  29; second written submission, para.  20. 
713 Appellate  Body Report, EC – Bed Linen (Article  21.5 – India) , para.  93. See also Panel Report, US – 
Large Civil Aircraft (2nd complaint) (Article  21.5 – EU), para.  7.30. 
714 Article  2.1 of the DSU. (emphasis added)  
715 Article  2.1 of the DSU.  
716 Oxford Dictionar ies online, definition of "implement" 
https://www.oed.com/view/Entry/92452? redirectedFrom=implemented#eid  (accessed 18 July 2019).  
717 United States ' first written submission, paras. 27 -28, 47, and 52-55; second written submission, 
paras. 29 -30 and 33-34. 
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  has brought its measure int o conformity with the covered  Agreements. Under no circumstance can 
a compliance panel revisit "as such" findings of violation from the original proceedings that have 
been adopted by the DSB.718 Accordingly, we dismiss the objections raised by the United Sta tes. 
7.302.   Turning to the matter that we, as a compliance panel, should address, we recall that the 
Appellate  Body in the original proceedings found that 19 USC § 1677(7)(G)(i)(III) requires the USITC 
to cross -cumulate the injurious effects of subsidized and dum ped, non -subsidized imports, when 
CVD petitions are filed on the same day as the USDOC self -initiates an anti -dumping investigation 
(or vice versa ).719 The Appellate Body found that 19 USC § 1677(7)(G)(i)(III) was "as such" 
inconsistent with Article  15 of th e SCM  Agreement, which does not permit the cross -cumulation of 
imports in original CVD investigations.720  
7.303.   In the current compliance proceedings, India and the United States disagree as to whether 
the latter complied with the DSB recommendation in the origin al dispute. India's argument is that 
there exists no such "measure taken to comply".721 The United States maintains that : (a) 19 USC § 
1677(7)(G)(i)(III) does not require the United States to take WTO -inconsistent action, and therefore 
the United States is not required to take any measure to comply with the DSB recommendation722; 
and (b) the United States has not acted inconsistently with the DSB recommendati on because the 
USDOC has exercised its discretion to not self -initiate countervailing or anti -dumping investigations 
on certain dates , and has confirmed its commitment to exercise its discretion in such a manner in 
the future .723  
7.304.   We begin by setting out the  relevant factors that guide us in determining whether there 
exists a "measure taken to comply". These factors pertain to the form, substance, and timing of the 
alleged "measures taken to comply". We then set out the evidence concerning the existence of th e 
alleged "measure taken to comply", before ascertaining whether, in light of the aforementioned 
factors, this evidence demonstrates the existence of a "measure taken to comply" as a matter of 
fact. 
7.305.   There are no rigid requirements in the DSU that specify w hat form the "measure taken to 
comply" must take. In the abstract, therefore, we cannot exclude any measure taken to comply due 
to the form it takes.724 However, the form that we would expect an alleged "measure to comply" to 
take is inextricably linked with  the nature of the DSB recommendation in the original proceedings. 
In this respect, it is significant that the current compliance proceedings concern a 
DSB recommendation relating to a finding of inconsistency "as such". We recall that the infringing 
measu re in the original proceedings was a provision in a statute, and the inconsistency was found 
based on the plain text of that provision, without reference to whether or how it may have been 
applied. In that regard, we recall that an "as such" claim can be b rought against a measure 
irrespective of its application.725 Claims of inconsistency "as such" are not concerned with the 
application of a specific measure, other than to ensure that it is not applied in the future.726  
 
718 Several third parties intervening in these compliance proceedings expressly share this 
understanding. (European Union's  third-party response to Panel question No.  10, para.  60; 
Canada's  third-party response to Panel question No.  10, para.  20; and Japan's  third-party response to Panel 
question No.  10, para.  35). 
719 Appellate Body Report, US – Carbon Steel (India) , para.  4.629.  
720 Appellate Body Report, US – Carbon Steel (India) , para.  4.629.  
721 India's  first written submission, paras.  16 and 32; second written  submission, para.  28. 
722 United States'  first written submission, para.  50; second written submission, paras.  28-30; and 
response to Panel question No. 54, paras. 129 and 133, No. 55, para. 137, No. 58, para. 145, No. 60, 
para. 147, and No.  61, para. 159.  
723 United States'  first written submission, paras.  44-55; second written submission, paras.  28, 30, and 
33-34; and response to Panel question No. 54, paras. 128-134, No. 55, para. 138, No. 58, para. 145, No. 60, 
para. 147, and No. 61, paras. 154 and 157 -158. 
724 Panel Report, US – Gambling (Article  21.5 – Antigua and Barbuda) , paras.  6.23-6-24. 
725 Ex multis , see Appellate Body Report, US – Corrosion -Resistant Steel Sunset Review , para. 82. 
726 Although the Appellate  Body found that the Panel erred by failing to account for "evidence concerning 
the application of the measure" in addressing an "as such" claim in the original proceedings, we emphasize that 
its finding in that regard pertained to e stablishing the meaning of the measure in the first place. 
(Appellate  Body Report, US – Carbon Steel (India) , para. 4.455). As we have explained above, the 
Appellate  Body's  finding on the meaning of the measure must now be accepted in these compliance 
proceedings as a "given".  
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  7.306.   The form of the infringing measure and the nature of the DSB ruling as an "as such" 
inconsistency thus provide guidance in identifying whether there exists a "measure taken to comply". 
As an example, if a measure is found to be inconsistent due to the way in which it is applied, a 
change in the application of the measure could be sufficient to comply with an adverse ruling, without 
requiring a change in the text of the measure or any other written implementing measures.727 On 
the other hand , if the text of th e measure has been found to be "as such" inconsistent with a 
Member's  WTO obligations, regardless of the manner of its application, a change in the way a 
measure is applied, or the reiteration of a practice already followed in the past, is irrelevant for t he 
purposes of remedying an inconsistency "as such". In saying that, we do not exclude that there may 
be ways of remedying such an inconsistency which do not involve changing the text of a measure 
itself, and in this regard we agree with the following rema rks of the panel in US – Gambling (Article 
21.5 – Antigua and Barbuda) : 
[C]ompliance with a recommendation under Article 19.1 of the DSU could conceivably 
be achieved through changes to the factual or legal background to a measure at issue, 
without a chang e to the text of the measure itself. For example, a measure may lapse, 
or satisfy a requirement in a covered agreement, due to the subsequent occurrence of 
a relevant circumstance. If changes to the measure's factual or legal background 
modified the effect s of that measure sufficiently to bring about a situation in which it 
complied with the relevant covered agreement, there seems to be no reason why this 
should not fulfil the aim of the recommendation of the DSB, which is to achieve a 
satisfactory settleme nt of the matter in accordance with the rights and obligations under 
the DSU and the covered agreements, as provided in Article 3.4 of the DSU. The 
essential point is that there needs to be compliance. However, even in these cases, 
compliance would entail a change relevant to the measure since the original proceeding. 
This dispute does not present any such changes.728 
As this passage makes clear, however, even where a Member seeks to cure an "as such" 
inconsistency "without a change to the text of the measure  itself", compliance must nonetheless 
entail a change relevant to the measure that was found to be inconsistent in the original proceedings.  
7.307.   Turning now to the timing  of the alleged "measure taken to comply", we agree with the panel 
in US – Gambling ( Article 21.5 – Antigua and Barbuda)  that a compliance panel deals with events 
taking place after the DSB's  recommendations in a dispute.729 The focus of a compliance proceeding 
is to verify whether a Member, after the DSB recommendation, has taken steps to bring  a measure 
that was previously found to be WTO -inconsistent into conformity with the covered  Agreements. A 
"measure taken to comply", in fact, is a new measure, distinct from the one that was the subject of 
the findings of inconsistency in the original pro ceedings.730 Accordingly, the reiteration of a practice 
that was already in place before the DSB recommendation cannot remedy the inconsistency "as 
such" of a provision in a statute with a Member's WTO  obligations.  
7.308.   As regards the substance  of an alleged "me asure taken to comply", we recall that Article  3.7 
of the DSU clearly establishes a preference for the withdrawal  of a WTO -inconsistent measure.731 
While the measure taken to comply can take various forms, we would expect its substance to be 
directed towards having an equivalent effect, namely to bring about compliance with the covered 
Agreements in light of the recommendations and rulings of the DSB . In the case of a finding of WTO -
inconsistency in respect of a legislative act "as such", we would normally expect the alleged 
"measure taken to comply" to modify the legislative authority of that measure in respect of the WTO -
inconsistency at issue.  
 
727 Panel Report, US – Gambling (Article  21.5 – Antigua and Barbuda) , para.  6.21. 
728 Panel Report, US – Gambling (Article  21.5 – Antigua and Barbuda) , para. 6.22. (emphasis added, 
footnotes omitted)  
729 Panel Report, US – Gambling (Article  21.5 – Antigua and Barbuda) , para.  6.16. 
730 Appellate  Body Report, Canada – Aircraft (Article  21.5 – Brazil) , para.  36 (referred to in 
Appellate  Body Reports, US – Shrimp (Article  21.5 – Malaysia) , para.  86; and EC – Bed Linen (Article  21.5 – 
India) , para.  81). 
731 Article  3.7 of the DSU reads, in relevant part:  
In the absence of a mutually agreed solution, the first objective of the dispute settlement 
mechanism is usually  to secure the withdrawal of the measures concerned[.]  
Emphasis added.  
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  7.309.   We note that the parties do not disagree that 19 USC § 1677(7)(G)(i)(III) is still in force, 
and that its text has not been modified since the original proceedings. In other words, the legislative 
authority of 19 USC § 1677(7)(G)(i)(III) remains intact.  
7.310.   The Un ited States however contends that its "measure taken to comply" took the form of 
the USDOC's commitment to not self -initiate CVD investigations on certain products on the same 
day as petitioners file anti -dumping duty petitions concerning the same product,  or vice versa 
(hereinafter, the "commitment").732 This "commitment" was referred to in several statements made 
by the United States at meetings of the DSB where the compliance with the recommendations from 
the original dispute was discussed.  
7.311.   The United Stat es made the following statement at the 22 June 2016 DSB meeting:  
The United  States did not understand the concern India now raised with respect to a 
finding on one provision of US  law, Section  1677(7)(G)(i)(III) of the Trade Act of 1930. 
As the United  States had explained to India previously, no further US  action was needed 
with respect to this finding . The provision of US  law at issue was not applied in the 
underlying investigation, and therefore had no bearing on compliance with respect to 
the countervail ing duty at issue in this dispute. Indeed, to the United  States'  knowledge, 
this provision of US  law had never been used in any investigation. With respect to any 
future investigations, the statutory provision related to a decision by the administering 
authority to self -initiate a CVD investigation on the same day as an AD petition was filed 
by an industry, or vice versa. Under US  law, Commerce had discretion to decide the 
timing when it would self -initiate an investigation. Having never been triggered befo re, 
it was not now the intention of the United  States to exercise the discretion on timing 
provided under US  law differently. That is, the Department of Commerce had confirmed 
its commitment to exercise its discretion with respect to Section  702(a) of the Tariff Act 
of 1930 pertaining to countervailing duty investigations and Section  732(a) of that Act 
pertaining to anti -dumping duty investigations in a manner that was consistent with the 
international obligations of the United  States .733 
7.312.   At the DSB meeting o f 26 September 2016, the United States asserted:  
With respect to the "as such" finding on Section 1677(7)(G)(i)(III) of the Tariff Act of 
1930, the US had explained, both to India and to the DSB, that no further US action 
was needed. As the United States h ad explained before, under US law, the US 
Department of Commerce had discretion with respect to the timing of a self -initiated 
investigation. And, to reiterate , Commerce had confirmed its commitment to exercise 
this discretion in a manner that was consiste nt with the international obligations of the 
United States.  Therefore, no further action was needed and India had no basis for its 
insistence that US law had to be changed in order for the United States to comply with 
the DSB recommendations in this disput e. India was incorrect that the US claim of 
compliance was based on the statute never having been applied. While it was true that 
the statutory provision at issue had never been applied, as had just been noted, that 
was not the reason a change to the statu te was not necessary. Given that the United 
States had fully complied in this dispute, the United States was not required to submit 
further status reports in this matter.734 
7.313.   At the DSB meeting held on 26 October 2016, the United States reiterated that : 
[T]he  Department of Commerce had confirmed its commitment to exercise its discretion 
with respect to section 702(a) of the Tariff Act of 1930, pertaining to countervailing duty 
investigations, and section 732(a) of that Act, pertaining to antidumping duty 
investigations, in a manner that was consistent with the WTO obligations of the 
United  States.735 
 
732 United States'  second written submission, para.  28; response to Panel question No.  54, para.  129. 
733 DSB minutes WT/DSB/M/380,  (Exhibit IND -63), para.  4.3. (emphasis added)  
734 DSB minutes WT/DSB/M/385,  (Exhibit IND -64), para.  4.6. (emphasis added)  
735 DSB minutes WT/DSB/M/3 87, (Exhibit IND -65), para.  5.6. 
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  7.314.   The USDOC's "commitment" was also referred to in an exchange of letters between the 
Office of the  USTR and the USDOC. In a letter dated 23 June 2016, the Office of t he USTR expressed 
its understanding that the USDOC enjoys discretion concerning the timing for the initiation of 
investigations and requested the USDOC to confirm its "commitment" to exercise that discretion in 
a manner "consistent with the international o bligations of the United States".736 Responding with a 
letter dated 28 June 2016, the USDOC confirmed its "commitment" to exercise its discretion relating 
to the timing of investigations "in a manner that will not lead to results that are inconsistent with 
the international obligations of the United States, as reflected in the [SCM Agreement] and the 
[Anti-Dumping Agreement]".737 There is no evidence on the record that these letters were published 
before these compliance proceedings.  
7.315.   Although the above -mentione d US statements at the DSB, and the exchange of letters 
between  the Office of the  USTR and the USDOC , refer to the USDOC's "commitment", the 
United  States affirms that neither its statements nor the exchange of letters constitute "measures 
taken to comply"  with the DSB recommendation. For the United  States, these statements and letters 
rather confirm  that the United  States has been and continues to be in compliance in respect of 
19 USC § 1677(7)(G)(i)(III).738 In other words, the "commitment" relied on by the  United States as 
a "measure taken to comply" pre -dates those statements and exchange of letters. The latter merely 
confirm the pre -existing "commitment". However, the United States has not adduced any evidence 
regarding the existence or nature of that "co mmitment".739 We specifically asked the United States 
a question concerning the date in which the "commitment" took effect and how it was made 
manifest.740 The United States did not respond to this question. As a result, besides statements 
confirming  the existence of the "commitment", there is no direct evidence before this Panel clarifying 
the form and timing of the "commitment".  
7.316.   The United States has descr ibed its measure taken to comply as a commitment to " continue  
to" exercise discretion in a manner that is not inconsistent with its international obligations741, whilst 
simultaneously arguing that "a proper interpretation of [19 USC § 1677(7)(G)(i)(III)] sho ws that 
[it] does not require the United States to take WTO -inconsistent action", and that it took "action to 
confirm this interpretation through an exchange of letters ".742 In other words, within the United 
States' own framing, the "commitment" was not a "c hange", but rather the continuing exercise of 
discretion, which in its view was sufficient because that discretion likewise demonstrated that the 
measure was always WTO -consistent and no actual action was therefore required to cure the "as 
such" inconsiste ncy.743 The United States repeated this understanding at multiple junctures, e.g. 
describing its authorities' approach as being the "[c]ontinued non -use of the statute"744 and "to 
(continue to) exercise its discretion"745, with the attendant argument that "the U SDOC 's commitment 
is meaningful [as] demonstrated by the fact that the USDOC has never triggered Subpart III, in this 
investigation or any investigation"746, and that "[b]ecause Subpart III does not require the United 
 
736 Letter dated 23 June 2016 from the Office of the USTR to the USDOC, (Exhibit USA-36). 
737 Letter dated 28 June 2016 from the USDOC in response to the Office of the USTR, (Exhibit USA-37). 
738 The United  States repeatedly held before this Panel that this evidence only served to "confirm" the 
USDOC's  "commitment". (United  States'  first written submission, paras.  26, 33 -34, 44 -45, 51, and 54 -55; 
second written submission, paras.  30 and 33 -34; ope ning statement at the meeting with the Panel, paras.  10 
and 12; responses to Panel question No. 54, paras.  128 and 131, No. 55, para. 138, No. 60, para. 147, No. 61, 
paras.  154 and 158, and No.  62, para.  160).  
739 We asked  the United States to indicate wheth er additional documental evidence proved the existence 
of the "commitment" . The United States did not identify any other document in its response 
(United  States'  response to Panel question No.  55, paras.  137-138).  
740 Panel question No. 55. We asked the Unit ed States the following question: "[c]an the United States 
identify the date when this "commitment" took effect and how it was made manifest?" . The United States did 
not respond to this question . 
741 United States' response to Panel question No. 61,  para 1 54. (emphasis added)  
742 United States' comments on third party's  response to Panel question No.  10, para. 80. (emphasis 
added)  
743 The United States also described the DSB statements, in which the exchange of letters were 
explained, in the following terms: "[ n]ot having had a chance  to defend a claim against Subpart III before the 
panel or Appellate Body in the underlying proceedings , the United States explained the operation of Subpart III 
at meetings of the DSB , and confirmed  the USDOC 's commitment to ( continue to ) exercise its discretion as to 
the timing of any self -initiated investigation in a WTO-consistent manner ." (United States' response to Panel 
question No. 61,  para 1 54). (emphasis added)  
744 United States'  first written submission, para. 47. 
745 United States' response to Panel question No. 61,  para 1 54. 
746 United States' response to Panel question No. 54, para. 132.  
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  States to take WTO -inconsistent action, the United States did not need to take an additional measure 
in order to implement the DSB recommendation."747 
7.317.   As already discussed748, we do not exclude the possibility that the United States could have 
achieved compliance through means other than changing th e text of the inconsistent measure by 
amending its legislation. In the specific circumstances of this case, however, the United States has 
failed to identify any measure that might address the specific underlying WTO -inconsistency of 19 
USC § 1677(7)(G)(i) (III) by introducing a change  relevant to the specific finding of WTO -
inconsistency. Rather, according to the United States' own description of the relevant DSB 
statements, they were not intended to convey that any such "change" had taken place, but rather  
that the USDOC would continue  to exercise its discretion in a WTO -consistent manner on the basis 
of the United States' own understanding of the operation of the statute749: 
Not having had a chance to defend a claim against Subpart III before the panel or 
Appellate Body in the underlying proceedings, the United States explained the operation 
of Subpart III at meetings of the DSB, and confirmed the USDOC 's commitment to 
(continue to) exercise its discretion as to the timing of any self -initiated investigation in 
a WTO -consistent manner.  
7.318.   In any event,  even if we were able to treat the above -mentioned DSB statements and the 
letters as the "measure taken to comply", a number of problems would still remain. The letters and 
DSB statements acknowledge the USDOC's dis cretion concerning the timing of the self -initiation of 
investigations. This aspect is not disputed by the parties, it was not an issue in the original 
proceedings, and it has no bearing for the resolution of these compliance proceedings. However, t he 
DSB statements and the exchange of letters do not qualify this discretion any further than a generic 
reference to the United States' obligations under the SCM Agreement and the Anti -Dumping 
Agreement. The above -mentioned documents are thus too broad and lack d etails necessary to 
assess the scope of the USDOC's "commitment".750 More importantly, even if these documents were 
clear in indicating, as the United States argues in its submissions, that the USDOC will not self -
initiate countervailing duty investigations on the same day as anti -dumping petitions are filed, or 
vice versa , we note that the self -initiation of an investigation by the USDOC is only one factor of the 
equation.  The USDOC , in fact,  cannot control the timing of the filing of a petition by complaina nts. 
A situation may thus arise where the USDOC self -initiates a CVD investigation on one day, and 
petitioners submit an anti -dumping petition on the same day. The answers submitted by the United 
States in response to the Panel's questioning reinforce this  understanding. First, the preparatory 
work leading to the self -initiation of a countervailing or anti -dumping investigation is confidential. 
Therefore, the representatives of the domestic industry are not formally aware of the day when the 
USDOC plans to self -initiate an investigation. This does not rule out the possibility that a petition be 
filed on that same day. The United States characteri zes this scenario as being "highly speculative", 
but it does not offer convincing arguments that it will never materiali ze.751 The United  States further 
notes that the USDOC "may" always self -terminate an investigation.752 However, this does not 
guarantee that the investigation "will" necessarily be terminated every time a certain factual m atrix 
materiali zes. And if the investigation proceeds, the USITC will still have an obligation to cross -
cumulate the injurious effects of subsidized and dumped, non -subsidized imports. The United States 
finally notes that the relevant USITC regulation (19 C.F.R.  § 207.19(a)) provides that "if the petition 
is filed … after 12:00 noon … the petition shall be deemed filed on the next business day" and argues 
that the USDOC could ensure that petitions are not filed on the same day by self -initiating 
investigati ons later in the day.753 While this possibility exists, there is no evidence on the Panel 
record that the USDOC formally committed to self -initiate investigations on the following day or to 
receive petitions only after a certain time.  
7.319.   Notwithstanding the all eged actions taken by the United States to comply with the 
DSB recommendation in the original proceedings, 19 USC § 1677(7)(G)(i)(III) remains in force  and 
 
747 United States' response to Panel question No. 61, para 159.  
748 See para. 7.306  above.  
749 United States' response to Panel question No. 61,  para 1 54. 
750 We note that the panel in Canada – Aircraft (Article 21.5 – Brazil)  rejected a measure adopted by the 
respondent in that dispute to remedy a WTO -inconsistency, on the grounds that it was "generally worded", and 
thus not sufficient to ensure compliance. (Panel Report, Canada – Aircraft (Article 21.5 – Brazil) , para.  5.144 ). 
751 United States ' response to Panel question No. 58, para. 144. 
752 United States ' response to Panel question No. 58, para. 144. 
753 United States ' response to Panel question No. 58, para. 144. WT/DS436/ RW 
 
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  the United States has not demonstrated that it introduced some other change relevant to the specific  
finding of WTO -inconsistency in order to cure the effects of that finding . Based on the foregoing, 
there is no evidence before this Panel that would permit the conclusion that there exists a measure 
taken to comply with the DSB recommendation to bring 19 USC § 1677(7)(G)(i)(III) into conformity 
with the covered  Agreements . 
7.9.4   Conclusion  
7.320.   We find that India has demonstrated that the United  States  has taken no measure  to comply 
with the DSB recommendation in the original dispute to bring 19 USC § 1677(7)(G)(i)(I II) into 
conformity with  Articles  15.1-15.5 of the SCM  Agreement . 
7.10  Injury: India 's "as applied" claims under Articles  15.1 and  15.2 of the 
SCM Agreement  
7.321.   India argues that the USITC 's Section  129 Determination failed to assess the impact of 
subsidized imports on the prices for the domestic like products. In this regard, India submits three 
main arguments.754 First, India argues that the USITC used flawed  methodology and data.755 
Second, India maintains that the USITC in its Section  129 Determinat ion "brushed aside " the results 
of the price comparisons conducted under the commercial policy analysis system ( COMPAS756) 
model, which showed in the original determination that subsidized imports had a minimal impact on 
the prices of US producers.757 Finally,  India contends that the USITC failed to consider the 
significance of the magnitude of price undercutting, and instead only focused on the frequency of 
undercutting.758 
7.322.   Before addressing India'  arguments and the US counter -arguments, it is important to 
under stand the background that led to the USITC 's Section  129 Determination. In the original 
dispute, the panel found that the application of Section 1677(7)(G)(i) in the USITC 's original injury 
determination was inconsistent with Article  15 of the SCM  Agreement , because it led to the 
cross-cumulation of subsidized and dumped, non -subsidized imports for the purposes of the injury 
assessment.759 Pursuant to a request received from the Office of the USTR, the USITC initiated 
Section  129 proceedings with a v iew to complying with the DSB recommendation in the original 
dispute.760 
7.323.   In the introduction to the Section  129 Determination, the USITC explained that the 
document would not address issues that were not disputed in the original WTO proceedings, or as 
to whi ch the Panel or the Appellate  Body did not make findings of inconsistency.761 In essence, the 
USITC reopened the file of the original investigation, and examined whether cumulated subsidized 
imports from Argentina, India, Indonesia, South Africa, and Thailan d (thus excluding dumped, 
non-subsidized imports) caused injury to the domestic producers of hot -rolled steel products.  
7.10.1   Whether the methodology and the data used by the USITC were flawed  
7.324.   India argues that the USITC failed to conduct a proper injury assessm ent because of the 
methodology used for the comparison of the prices of subject imports with those of the domestic 
like product in the US  market. India maintains that the USITC did not base the comparison on a 
transaction -by-transaction analysis but, rathe r, on an assessment of the number of quarters in which  
subject  imports undercut the prices of US  commercial shipments.762 In addition, India argues that 
the determination does not indicate whether quarters were only counted when an importer provided 
data con cerning both import prices and prices at which the same importer procured from 
 
754 India's  submissions do not specifically follow this order of ar guments. For the purposes of addressing 
these arguments in this Report, however, we decided to slightly modify the order of the arguments.  
755 India's  first written submission, para.  41; second written submission, para.  59. 
756 The United  States defines the CO MPAS model as "an empirical analysis using certain economic 
assumptions". (United  States'  first written submission, para.  121).  
757 India's  first written submission, paras.  45-47; second written submission, paras.  54-56. 
758 India's  first written submission, p ara. 43. 
759 Panel Report, US – Carbon Steel (India) , paras.  8.2(c) and (d).  
760 USITC 's Section  129 Determination, (Exhibit IND -58), p.  5. 
761 USITC 's Section  129 Determination, (Exhibit IND -58), p.  7. 
762 India's  first written submission, para.  43. 
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  US producers, or if import prices reported by one importer were compared with the domestic 
procurement prices of another importer.763 Finally, India argues that the underlying pri cing data 
analysed in the Section  129 Determination changed from the original determination.764 
7.325.   The United  States ' rebuttal is  that claims concerning the USITC's methodology could have 
been brought in the context of the original WTO proceedings and that India opted not to.765 The 
United  States  notes that the USITC relied on the same data sources and used the same methodology 
in the original proceedings, and that Indi a did not raise the issue in the context of the original 
proceedings although it could  have.766 The United  States  further denies India 's allegation that the 
underlying pricing data has changed from the original determination.767 
7.326.   Against this background, we not e that the USITC based its Section  129 Determination on 
the same methodology, data, and record evidence as used in the original determination, to the 
extent that they were not changed in light of the panel 's and the Appellate  Body's findings in the 
origina l WTO proceedings. We further note that India did not raise any claim concerning the 
methodology used by the USITC in its 2001 determination's  price undercutting analysis in the 
original WTO proceedings.  
7.327.   The USITC disaggregated data on dumped imports, and relied on the data on subsidized 
products already collected and used in the context of the original determination. With specific regard 
to the price undercutting analysis, we note that , in its reinvestigation , the USITC  did not modify the 
methodology used  in the original investigation, nor did it rely on different sources for the data on 
price comparisons. Save for the correction of a clerical error concerning the number of the quarters 
where underselling (or overselling) occurred768, the USITC simply subtra cted the quarters concerning 
price comparisons between dumped imports and US  commercial shipments from the total number 
of comparisons of the prices of subject imports with those of the domestic like product.  Thus, the 
methodology and the data used in the Section  129 Determination are the same as in the original 
determination.  
7.328.   Based on the foregoing, we find that India 's claims concerning the methodology and the data 
used by the USITC  in the price undercutting analysis are outside the scope of these compliance 
proceedings, since those claims could have been raised in the original WTO proceedings.769 A 
different conclusion would imply that the USITC was not entitled to assume that unchall enged 
aspects of the measure were not in consistent with the United  States ' obligations under the 
SCM Agreement . Such a conclusion, in fact, would be excessively burdensome, since it would deprive 
the United  States  of the reasonable period of time that it w ould have enjoyed after the original 
proceeding to bring its measure into conformity.770  
7.10.2   Whether the USITC ignored data from the original determination  
7.329.   India contends that the USITC omitted information from the original record in its 
Section  129 Determinati on. According to India, considering  this information in the 
Section  129 Determination would have led the USITC to reach diametrically opposite conclusions on 
the occurrence of material injury.771 India notes that the USITC in the original determination made 
findings that the COMPAS model impact analysis results showed how subsidized imports taken 
together would have an impact of 0.3 % to 0.4 % on the prices charged by US  producers.772 India 
notes that the COMPAS model provides the only quantified information with  respect to the impact of 
the subsidized imports on the prices of domestic like products and on the state of the domestic 
 
763 India's  first written submission, para.  42; second written submission, para.  59. 
764 India's  second written submission, para.  48(b).  
765 United  States'  first written submission, para.  86; second written submission , para.  44. 
766 United  States'  first written submission, para.  92; second written submission, para.  44. 
767 United  States'  first written submission, fn 63.  
768 United  States'  first written submission, para.  72 and fn 63.  
769 See above section 7.1.4. 
770 Other panels and the Appellate Body reached similar conclus ions in previous disputes . See e.g. Panel 
Report, EC and certain member States – Large Civil Aircraft ( Article  21.5 – US), para. 6.81. See also 
Appellate  Body Report, US – Softwood Lumber IV ( Article  21.5 – Canada) , para. 74. 
771 India's  first written submis sion, paras.  44 and 47.  
772 India's  first written submission, paras.  45-46. 
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  industry and that the assertion that COMPAS results did not form part of the original determination 
is contradicted by their inclusion  in an appendix to the original determination.773 
7.330.   The United  States  argues that this claim is outside the scope of these compliance 
proceedings. According to the United  States , India should have brought this claim in the original 
proceedings, since it concer ns an unchanged aspect from the original determination.774 The 
United  States  argues that COMPAS results were included in the report accompanying the 
USITC 's opinions in the original determination, but were not relied upon as the basis for findings or 
determi nations.775 The USITC similarly declined to rely on COMPAS results in its 
Section  129 Determination, because : (a) COMPAS results never constituted the sole basis for the 
USITC 's analysis; (b) the model is no longer included  in the USITC 's reports; and (c) qu arterly 
pricing data provided better evidence for its findings.776 According to the United  States , quarterly 
pricing data better indicated the changes in domestic prices resulting from the increased volume of 
low-priced subsidized imports in the US market than a theoretical economic model .777 
7.331.   We note that the COMPAS model results were included in appendix D to the 2001 Original 
Determination.778 However, the United  States  argues that the  USITC did not rel y on them  in its 
original determination.779 This is confirmed by  the original determination , which discusses t he price 
effects of subject imports without reference to or incorporation of COMPAS model results.780 In the 
Section  129 Determination, the USITC again did not resort to COMPAS model results. Quoti ng from 
the Section  129 Determination:  
Respondent GOI contends that the Commission should consider the results of the 
COMPAS model relating to subject CVD imports in its analysis. GOI Comments at 19 
and 20. We do not find the COMPAS model to be a useful to ol in our analysis. COMPAS 
modeling was one analytic tool that appeared in Commission staff reports during the 
1990s and early 2000s; it was in the staff report in the original Final Determinations. 
The results of the COMPAS model were never used by a majo rity of the Commission as 
its sole form of analysis in a Commission opinion because of its limitations. As the 
Commission explained shortly after it stopped providing the COMPAS model in its 
reports, we prefer to rely on the actual empirical data in the re cord. See, e.g., Circular 
Seamless Stainless Steel Hollow Products from Japan , Inv. No. 731 -TA-859 (Remand), 
USITC Pub. 3475 at 7 and n.24 (December 2001); accord Altx, Inc. v. United  States , 
370 F.3d 1108, 1121 (Fed. Cir. 2004).781 
7.332.   It appears from the record evidence that the USITC had already ceased relying on the 
COMPAS model prior to  the original determination. Rather than simply "brushing aside" the COMPAS 
model data – as argued by India – the USITC explained why it did not use it in its original 
determi nation and in its Final Determination. India was in a position to challenge the non -reliance 
on COMPAS model results in the original determination in the original WTO dispute, but did not  do 
so. Since India is bringing this claim for the first time in thes e compliance proceedings, we find that 
it is outside the scope of these compliance proceedings for the reasons already spelled out above.782 
7.10.3   Whether the USITC failed to determine the significance of price undercutting  
7.333.   Before turning to the parties' arguments and to our evaluation of the matter, it is useful to 
briefly summarise the factual background of India's claim.  
7.334.   To conduct its price effects analysis, the USITC identified four pricing products and divided 
the POI into quarters. To determine whet her undercutting occurred in a quarter for each pricing 
product, the USITC used the following approach. First, the USITC determined average quarterly 
 
773 India's  second written submission, para.  48(d).  
774 United  States'  first written submission, paras.  86 and 92.  
775 United  States'  first written submission, para.  123. 
776 United  States'  first written submission, para.  124. 
777 United  States'  first written submission, para.  125; second written submission, para.  59. 
778 USITC 's 2001 Determination , (Exhibit IND -5), appendix D.  
779 United  States'  first written submission, para.  123; second written submission, para.  59. 
780 USITC 's 2001 Determination , (Exhibit IND -5), pp.  21-22. 
781 USITC 's Section  129 Determination, (Exhibit IND -58), fn 130.  
782 See above para. 7.328. 
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  prices for subsidized products and the domestic like product. When the average quarterly price for 
subsidi zed products from a country was lower than that of the domestic like product, the USITC 
concluded that the imports from that country were undersold in a given quarter. When the average 
quarterly price for subsidized products from a country was higher than that of the domestic like 
product, the USITC concluded that the imports from that country were oversold in a given quarter.783  
7.335.   As we mentioned earlier, in the Section 129 Determination, the USITC subtracted the 
quarters concerning price comparisons between dumped imports and US  commercial shipments from 
the total number of comparisons of the prices of subject imports with those of the domestic like 
product.784 The data relied on by the USITC in the Section 129 Determination was derived from its 
evaluation in t he original determination, in which the USITC set out, inter alia , quarterly margins of 
underselling (or overselling).785 
7.336.   The USITC's  findings on price effects can be summarized as follows. The USITC began its 
analysis by noting that the record evidence indi cates that subject CVD imports and domestically 
produced hot -rolled steel are "at least moderately substitutable" and that price is an important factor 
influencing purchasing decisions.786 Subsidized imports and domestic products share the same 
essential che mical and physical properties.787 They are interchangeable; therefore, price is a 
principal factor influencing purchasing decisions788 and sustained underselling by even a moderate 
amount of subject CVD imports can have price -suppressing or price -depressing ef fects.789 The USITC 
noted that subject CVD imports undersold the domestic like products in 74 out of 124 quarterly 
comparisons (59.7% of the comparisons).790 According to the USITC, this underselling was 
particularly probative, in light of the importance of pr ice in purchasers' decisions to increase 
inventories.791 Specifically, low subject CVD import prices led to a significant growth in subject CVD 
import volume between the end of 1999 and the first half of 2000, at a time when (i) the prices of 
domestic produc ts were rising and (ii) apparent US consumption was increasing.792 The USITC 
explains that prices were at their highest level in 1998, corresponding to the entrance in the market 
of unfairly traded imports from Brazil, Japan, and the Russian Federation.793 After the imposition of 
anti-dumping duties on imports from those three countries, prices rose through the first quarter of 
2000, but "generally did not recover" to the levels of 1998, despite increases in US consumption.794 
The restrained price recovery occurr ed during the same quarters as the volume of subject CVD 
imports increased sharply.795 This coincided with peaks in inventories for the POI, to which subject 
CVD imports contributed.796 These excesses in inventories had a negative impact on domestic prices, 
leading to their sharp decline during the end of 2000 and the beginning of 2001.797 Based on the 
foregoing, the USITC found that significant price underselling by subject CVD imports had significant 
adverse effects on domestic prices during the POI.798 
7.337.   India arg ues that the USITC's analysis on the price effects of subject CVD imports only 
covered instances of price undercutting.799 India argues that the USITC failed to consider the 
 
783 United  States'  response to Panel  question No.  65, para. 167. The Panel takes note of 
India's  objection that it is not clear how the USITC determined average quarterly prices (India' s comments on 
United States' response to Panel question No. 65). India does not further elaborate on this aspect and, in 
absence of additional arguments, the Panel is not in the position to address India's comment.  
784 See above  para. 7.327 . 
785 USITC 's Original Determination, (Exhibit IND -5), pp. V -17-V-20. 
786 USITC 's Section  129 Determination,  (Exhibit IND -58), p. 23.  
787 USITC 's Section  129 Determination,  (Exhibit IND -58), p. 23.  
788 Quoting from the Section  129 Determination: "[p]urchasers indicated that anticipated future demand 
was the most important factor in deciding to hold inventories, although low purchase prices, whether domestic 
or import, also were a factor". ( USITC 's Section  129 Determination,  (Exhibit IND -58), fn 104). See also 
USITC 's 2001 Determination, (Exhibit IND -5), p. V-9. 
789 USITC 's Section  129 Determination,  (Exhibit IND -58), p. 23.  
790 USITC 's Section  129 Determination,  (Exhibit IND -58), p. 23.  
791 USITC 's Section  129 Determination,  (Exhibit IND -58), pp. 23 -24. 
792 USITC 's Section  129 Determination,  (Exhibit IND -58), p. 24.  
793 USITC 's Section  129 Determination,  (Exhibit IND -58), p. 24.  
794 USITC 's Section  129 Determination,  (Exhibit IND -58), p. 24.  
795 USITC 's Section  129 Determination,  (Exhibit IND -58), p. 24.  
796 USITC 's Section  129 Determination,  (Exhibit IND -58), p. 24.  
797 USITC 's Section  129 Determination,  (Exhibit IND -58), p. 25.  
798 USITC 's Section  129 Determination,  (Exhibit IND -58), p. 25.  
799 India's  first written submission, para.  43. 
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  significance of the magnitude of underselling where it materialized, and simply focu sed on the 
frequency of underselling.800 According to India, the significance and the impact of underselling 
cannot be fully ascertained without weighing the extent of underselling or overselling in each 
discovered instance.801 India argues that at no point di d the USITC discuss how or why the instances 
of price underselling which it has observed to exist may be deemed to be "significant".802 India 
further argues that, rather than counting isolated instances, the USITC should have assessed the 
trends of undersell ing and overselling.803 
7.338.   India submits that, in addition to establishing the existence of price underselling, an 
investigating authority is also required to determine whether the subject CVD imports have an 
"explanatory force" for the established price unders elling.804 According to India, the USITC failed to 
comply with this standard by not assessing the magnitude, the significance or the "explanatory 
force" between the subsidized imports and the underselling determined to exist.805 India submits 
that the USITC sh ould have considered underselling in and of itself, and the absence of such an 
assessment forecloses any possible determination concerning the explanatory force between subject 
CVD imports, on one side, and the price effect determined to exist, on the othe r.806  
7.339.   The United  States responds that the USITC objectively found, based on positive evidence, 
that underselling by subsidized imports was significant.807 The United  States explains how the USITC 
found that subsidized imports undersold domestic like products in 74 out of 124 quarterly 
comparisons.808 Because price was an important factor in purchasing decisions, the USITC found 
underselling to be "particularly probative" and to provide the impetus  for significant growth in the 
volume and inventories of subsidize d imports in 1999 and 2000.809 The United  States further notes 
that "the increased volume of low -priced subsidized imports restrained price increases for the 
domestic like product during late 1999 and early 2000, and the inventory overhangs caused by 
purchas ers' acquisition of low -priced subsidized imports ultimately resulted in price decreases for 
the domestic like product in late 2000 and 2001".810 The United States argues that Article 15.2 of 
the SCM does not prescribe any methodology that an investigating a uthority conducting a price 
effects analysis is expected to follow.811  
7.340.   According to the United  States, an investigating authority's objective examination of price 
undercutting must ensure that subject import prices have "explanatory force" for the changes of the 
prices of domestic products.812 In this respect, the United States argues that the USITC took into 
account the market conditions in reaching its conclusions, determining that the fair degree of 
substitutability between subject CVD imports and domestic products, combined with the finding that 
price was a principal factor influencing purchasers' decisions, contributed to the conclusion that 
subject CVD imports had explanatory force for changes in domestic prices.813 The United States 
submits that t he USITC fully acknowledged that price underselling did not occur in all quarterly 
comparisons, but it nevertheless found that sustained underselling by "even a relatively moderate 
amount of subject CVD imports" could have price -suppressing or price -depres sing effects.814 The 
United States also argues that the USITC did not limit its analysis to the end points of the POI, but 
utilized its quarterly pricing data to consider changes in prices within the said period.815 
 
800 India's  first written submission, para.  43. 
801 India's  first written submission, para.  43; second written submission, para. 58.  
802 India's  second written submission, para.  58. 
803 India's  first written submission, para.  44. 
804 India's second written submission, para. 53.  
805 India's second written submission, para. 53.  
806 India's second written submission, para. 57.  
807 United  States'  first written submission, para.  99. 
808 United  States'  first written submission, para.  99. 
809 United  States'  first written submission, para.  99. 
810 United  States'  first written submission, para.  99. 
811 United States' first written submission, para. 103.  
812 United  States' first written submission, para. 114 (citing  Appellate Body Report, China – GOES , 
para. 138); second written submission, para.  52 (referring to Appellate Body Report, China – GOES , 
para. 154).  
813 United States' first written submission, para. 114; second written submission, para. 53.  
814 United States'  first written submission, para. 115.  
815 United States' first written submission, para. 118; second written submission, para. 54.  
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  7.341.   The Panel now turns to its analysis816, beginning with the text of Article  15.2 of the 
SCM Agreement:  
With regard to the volume of the subsidized imports, the investigating authorities shall 
consider whether there has been a significant increase in subsidized imports, either in 
absolute terms or relative to production or consumption in the importing Member. With 
regard to the effect of the subsidized imports on prices, the investigating authorities 
shall consider whether there has been a significant price undercutting by the subsidized 
imports as compared with the price of a like product of the importing Member , or 
whether the effect of such imports is otherwise to depress prices to a significant degree 
or to prevent price increases, which otherwise would have occurred, to a significant 
degree. No one or several of these factors can necessarily give decisive guidance.817 
7.342.   The second sentence of Article  15.2 of the SCM  Agreement is concerned with the effect of 
subsidized imports on the prices for the domestic like product. The ordinary meaning of the  word 
"effect" is, inter alia , "something accomplished, caused, or produced; a result, consequence".818 The 
relevant enquiry, therefore, concerns the consequences produced by the prices of subsidized imports 
on the prices for the domestic like product in the  importing country. An investigating authority, in 
particular, shall consider whether there has been significant price undercutting by the subsidized 
imports as compared with the like domestic product in the importing Member.  
7.343.   The undercutting analysis con cerns whether subsidized imports are sold at lower prices 
compared to the like domestic product. Article  15.2 qualifies the price undercutting analysis with the 
adjective "significant", which is ordinarily defined as "[s]ufficiently great or important to b e worthy 
of attention; noteworthy; consequential, influential; expressive or indicative of something".819 The 
adjective "significant" is featured in two additional instances in Article  15.2 of the SCM  Agreement, 
and characterizes the degree to which subsidiz ed imports suppress or depress the prices of the 
domestic like product. Therefore, all price effects envisaged in Article  15.2 of the SCM  Agreement 
must materialize in a significant fashion for an investigating authority to make positive conclusions.  
7.344.   The text of Article 15.2 does not prescribe any particular methodology for the determination 
of price effects in injury analysis820, save for the general requirement laid down in Article 15.1 of the 
SCM Agreement that an investigating authority makes an "objectiv e examination" of the effect of 
subsidized imports on prices in the domestic market for the like product "based on positive 
evidence ".  
7.345.   Article  15.2 of the SCM  Agreement, like its corresponding provision in the 
Anti-Dumping  Agreement (Article  3.2), does no t establish a fixed numerical threshold to consider 
the price undercutting as significant. This aspect is relevant, bearing in mind that both the 
SCM Agreement and the Anti -Dumping  Agreement use an explicit numerical statutory threshold in 
other provisions  concerning other aspects of countervailing or anti -dumping investigations.821 The 
 
816 The Panel notes that the parties have submitted arguments concerning the reliability of the data and 
products chosen for the product mix relevant for the price comparison in the injury assessment. Since the data 
and choice of the product are the same as in the original investigation, consistent with the Panel's approach 
throughout the whole report, the Panel does not engage with  these arguments as they could have been 
brought to the Panel's attention in the context of the original dispute.  
817 Emphasis added.  
818 Oxford  Dictionaries online, definition of "effect"  
https://www.oed.com/view/Entry/59664?rskey=8g0vgR&result=1&isAdvanced=false#eid  (accessed 19 July 
2019) . The Panel notes that the Appellate  Body reported the same ordinary meaning for the word "effect" in 
Article  3.2 of the Anti -Dumping  Agreement (which, mutatis mutandis , is almost identical in wording as 
Article  15.2 of the SCM Agreement) in Appellate  Body Reports, China – HP-SSST (Japan) / China – HP-SSST 
(EU), para.  5.155; China – GOES , para.  135 (quoting Shorter Oxford English Dictionary , 6th edn, A. Stevenson 
(ed.) (Oxford University Press, 2007), Vol. 1, p.  798).  
819 Oxford Dictionaries online, definition  of "significant"  
https://www.oed.com/view/Entry/179569?redirectedFrom=significant#eid  (accessed 19 July 2019) . 
820 Panel Report, EC – Countervailing Measures on DRAM C hips, para. 7.334 . 
821 For the SCM  Agreement, see, e. g. Article  6.1(a) (on determining serious prejudice through the total 
ad valorem  value of subsidization), Article  8.2 (for various thresholds on non -actionable subsidies (now 
expired)), Article  11.4 (on t he threshold for domestic industry support to initiate an investigation); and 
Article  11.9 (on the de minimis  threshold). For the Anti -Dumping  Agreement, see, e.g. footnote 2 (on the 
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  Panel infers, therefore, that the drafters of the provision intentionally left considerable margin for 
an investigating authority to determine whether price undercutting is "s ignificant", based on the 
specific circumstances of the case. Accordingly, there is no fixed numerical threshold that must 
always be met.  
7.346.   The Panel notes that both parties in their submissions refer to the Appellate Body Report in 
China – GOES , which reco gnized that Article 15.2 of the SCM Agreement (and Article 3.2 of the Anti -
Dumping Agreement) establish "a link between the price of subject imports and that of like domestic 
products, by requiring that a comparison be made between the two".822 Importantly, the same report 
concluded that "an investigating authority is required to examine domestic prices in conjunction with 
subject imports" in order to determine whether subject imports have "explanatory force" for the 
price effects determined to occur on the d omestic products.823  
7.347.   The panel in EC – Countervailing Measures on DRAM Chips  held that "[t]he ordinary meaning 
of 'significant'  encompasses 'important', 'notable', 'major', as well as 'consequential', which all 
suggest something that is more than just a nom inal or marginal movement".824 Previous reports 
contain similar considerations concerning the interpretation of the same notion in the context of 
Article  6.3(c) of the SCM  Agreement.825 The Appellate  Body noted that the word "significant", in the 
context of an  evaluation of the effects of import prices on domestic prices, has both "quantitative 
and qualitative dimensions".826  
7.348.   In another dispute, the Appellate  Body held:  
[W]e note that the term "price undercutting" in Article  3.2 is qualified by the word 
"signifi cant", which is relevantly defined as "important, notable, consequential". … 
Article  3.2 expressly establishes a link between the price of subject imports and that of 
like domestic products, by requiring that a comparison be made between the two. This 
comp arison contemplates a dynamic assessment of price developments and trends in 
the relationship between the prices of the dumped imports and those of domestic like 
products over the duration of the POI. The significance  of the price undercutting found 
on the  basis of that dynamic assessment is a question of the magnitude of the price 
undercutting. What amounts to significant  price undercutting – that is, whether the 
undercutting is important, notable, or consequential – will therefore necessarily depend 
on th e circumstances of each case. In order to assess whether the observed price 
undercutting is significant, an investigating authority may, depending on the case, rely 
on all positive evidence relating to the nature of the product or product types at issue, 
how long the price undercutting has been taking place and to what extent, and, as 
appropriate, the relative market shares of the product types with respect to which the 
authority has made a finding of price undercutting.827 
7.349.   We take note of these prior finding s. In particular, we emphasize that Article 15.2 does not 
limit the scope of the elements that an investigating authority can or shall take into account to reach 
a conclusion that price undercutting is significant. Such an assessment depends on the availab le 
evidence and on the specific circumstances of the case. Against this background, we now turn to our 
own objective assessment of whether the USITC's  price effects analysis is consistent with the 
requirements of Article  15.2 of the SCM  Agreement.  
7.350.   India c hallenge s the failure by the USITC to consider the significance of price underselling. 
More specifically, India challenges the USITC's failure to consider the significance of the magnitude 
of price underselling every time it concluded that subject CVD impo rts undersold the domestic like 
 
threshold for "sufficient quantity" of relevant sales); footnote 5 (on th e threshold for "substantial quantities" of 
sales below cost); Article  5.8 (on the de minimis  threshold).  
822 Appellate Body Report, China – GOES , para. 136.  
823 Appellate Body Report, China – GOES , para. 138.  
824 Panel Report, EC – Countervailing Measures on DRAM Chips , para.  7.307. (fn omitted)  
825 Appellate  Body Reports, US – Upland Cotton , para.  426; US – Large Civil Aircraft (2nd Complaint) , 
para. 1052; and Panel Report, Korea – Commercial Vessels , para.  7.570.  
826 Appellate  Body Report, US – Large Civil Aircraft (2nd Complaint) , para.  1052.  
827 Appellate  Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.161.  (emphasis 
original; fns omitted)  
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  product in a given quarterly comparison.828 According to India, the USITC focused simply on the 
frequency of price underselling, and this cannot permit the full measurement or examination of  the 
significance and impact of pric e underselling.829  
7.351.   India's argument that the USITC "simply" focused on the frequency of price underselling is 
contradicted by the record evidence. Recalling that the USITC had to demonstrate the explanatory 
force of the prices of subject CVD imports on the prices for domestic products, the USITC began its 
analysis with the identification of the product concerned. Having verified that subject CVD imports 
and domestic products were interchangeable, of comparable quality, and sharing similar physical 
and chemic al characteristics, the USITC also determined, based on the responses to questionnaires 
by interested parties, that price was a principal factor influencing purchasing decisions. Against that 
background, the USITC found the frequency of underselling  (which  occurred in 59.7% of the 
quarterly comparisons) to be particularly probative, in light of other specific characteristics of the 
market for the product concerned. We also recall that the data relied on by the USITC in the Section 
129 Determination was deri ved from its evaluation in the original determination, in which the USITC 
set out, inter alia , quarterly margins of underselling (or overselling).830 It is apparent to us that the 
USDOC considered the importance of frequency to the "significance of the magni tude"831 of 
underselling as part of a broader "objective examination" of the matter before it, based on positive 
evidence.  
7.352.   India further argues that the USITC disregarded the trends of underselling and overselling, 
and instead focused on isolated instances o f the same. The Panel reiterates that there is no 
prescribed methodology that an investigating authority must follow in determining the occurrence 
of price effects. Specifically, Article 15.2 is silent on whether and how underselling and overselling 
trends  must be evaluated in the context of a price effects analysis. In any event, the Panel is not 
persuaded by India's arguments. The text of the Section 129 Determination reveals that the USITC 
did look at pricing trends during the POI. In particular, the USI TC found that the increase in volume 
of subsidized imports between 1999 and 2000 restrained the increase of domestic prices following 
the imposition of anti -dumping duties on Brazil, Japan, and the Russian Federation, and that there 
was a coincidence in ti me between price decreases starting the second half of 2000 and subject CVD 
imports' inventories overhangs.  
7.353.   It therefore appears that, to determine the "explanatory force" of price underselling, the 
USITC conducted an objective examination, looking at the frequency of price underselling together 
with, at least, the following elements of positive evidence: the interchangeability of the products, 
the correlation between increases in subsidized imports and inventories, restrained price increases, 
and declines in prices for the domestic like product.  
7.354.   The facts on the record thus contradict India's contention that the USITC "simply" relied on 
the frequency of price underselling in its price effects analysis. We also dismiss India's argument 
that the USITC should  have considered the magnitude of underselling or overselling in every 
quarterly comparison. In fact, we see nothing in the text of Article 15.2 of the SCM Agreement that 
would always require that a similar exercise be conducted.  
7.355.   In light of the foregoing , and having dismissed a number of other India's claims because 
they are not within the scope of these compliance proceedings, the Panel concludes that India has 
not demonstrated that the United States acted inconsistently with Articles 15.1 and 15.2.  
7.10.4   Conclusion  
7.356.   India has not demonstrated that the USITC acted inconsistently with Articles 15.1 and 15.2  
of the SCM Agreement . 
 
828 India's first written submission, para. 43.  
829 India's f irst written submission, para. 43.  
830 See above para. 7.335 . 
831 India's first written submission, para. 43.  
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  7.11  Injury: India 's "as applied" claims under Articles  15.1 and  15.4 of the 
SCM Agreement  
7.357.   India argues that when there is a positive mov ement in a number of injury factors, the 
investigating authority would need to explain how, despite such positive trends, the domestic 
industry is nevertheless materially injured.832 In particular, India argues that the analysis under 
Article  15.4 requires a n investigating authority to draw a correlation between the subsidized imports 
and the state of the domestic industry.833 According to India, the volume and price effects of subject 
imports analysed in the Section  129 Determination cannot be correlated with the state of the 
domestic industry in any manner.834 According to India, the United  States has not pointed to any 
part of the Section  129 Determination that draws a definitive correlation between the subsidized 
imports and the injury parameters indicating th e state of the domestic industry.835 India contends 
that the low volume of subject imports relative to consumption (5.8% of the market share in 2000) 
cannot be considered to have a meaningful impact on the state of the domestic industry.836 India 
further argue s that the low volume of subject imports required a more compelling explanation 
concerning its impact on the state of the domestic industry, especially in light of their marginal 
market share as compared to that of imports from countries subject to anti -dumping duty 
investigations.837 
7.358.   The United  States argues that India errs in interpreting Article  15.4 of the SCM  Agreement 
as requiring an investigating authority to provide a "compelling explanation" and show a "definitive 
correlation" when positive economic indicators are present.838 The United  States notes that the 
USITC duly acknowledged the existence of certain positive trends, and yet it explained why it found 
significant impact and material injury caused by subsidized imports notwithstanding such trends.839 
The United  States, in particular, notes that while many indicators were higher in 2000 than in 1998, 
the declines in many other indicators in the latter portion of the period corresponded with peaks in 
import volumes and inventories.840 Finally, the United  States argues that India conflates the 
obligation under Article  15.4 with the requirement to demonstrate a causal link as per Article  15.5.841 
7.359.   We begin our evaluation of India's  claim with the text of Article  15.4 of the SCM  Agreement:  
The examination of the impact of the subsidized imports on the domestic industry shall 
include an evaluation of all relevant economic factors and indices having a bearing on 
the state of the industry, including actual and potential decline in output, sales, ma rket 
share, profits, productivity, return on investments, or utilization of capacity; factors 
affecting domestic prices; actual and potential negative effects on cash flow, 
inventories, employment, wages, growth, ability to raise capital or investments and , in 
the case of agriculture, whether there has been an increased burden on government 
support programmes. This list is not exhaustive, nor can one or several of these factors 
necessarily give decisive guidance.  
7.360.   Article  15.4, like the corresponding provisi on in the Anti -Dumping Agreement Article  3.4, 
requires an investigating authority to examine the impact of subsidized imports on the domestic 
industry. To this effect, Article  15.4 provides a non -exhaustive list of economic factors and indices 
having a bea ring on the state of the domestic industry. The Appellate Body in China – GOES  
explained that Article  15.4 does not simply require an evaluation of the state of the domestic industry 
by looking at certain economic parameters.842 We agree with the Appellate B ody, noting that 
Article  15.4 establishes that an investigating authority must examine the impact  of subsidized 
imports on the domestic industry. We also agree with the Appellate Body in China – GOES that, 
similarly to Article  15.2, Article  15.4 requires an examination of the "explanatory force" of subsidized 
 
832 India's  first written submission, para.  53. 
833 India's  first written submission, para.  54. 
834 India's  first written submission, para.  55. 
835 India's  second written submission, para.  63. 
836 India's  second written submission, para.  64. 
837 India's  second written submission, para.  70. 
838 United  States'  second written submission, para.  64. 
839 United  States'  first written submission, para.  129. 
840 United  States'  first written submission, para.  134. 
841 United  States'  second written submission, para.  69. 
842 Appellate Body R eport, China – GOES , para.  149. 
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  imports in relation to the state of the domestic industry. As such, the analysis required by 
Article  15.4 is part of the logical progression established under Article  15 leading to the f inal question 
as to whether the injury suffered by the domestic industry is caused by subsidized imports.  
7.361.   That said, the analysis under Article  15.4 should not be confused with that under 
Article  15.5. While Article  15.4 is concerned with the examination o f the impact of subsidized imports 
on the domestic industry, an investigating authority under Article  15.5 is required to demonstrate 
that subsidized imports are causing injury. The latter analysis is broader, as the investigating 
authority is expected to examine "all relevant evidence" before it. Furthermore, Article  15.5 requires 
an investigating authority to conduct a non -attribution analysis concerning other factors causing 
injury to the domestic industry at the same time as the subsidized imports.843  
7.362.   Having clarified the scope of the analysis under Article  15.4 as well as the differences with 
the causality and non -attribution analysis envisaged in Article  15.5, we now turn to the evidence 
before us in order to make findings concerning India's claim.  
7.363.   The USITC in its Section  129 Determination noted that several indicators of the state of the 
domestic industry increased from 1998 to 2000.844 Nevertheless, the USITC observed that the 
domestic industry's  financial performance was poor during most of the POI (lo sses on commercial 
and total US  sales in 1999 and 2000; several producers entered bankruptcy proceedings; the 
number of workers, the hours worked, and the wages declined; the industry productivity increased 
from 1998 to 2000, but decreased in 2001; total c apital expenditures increased between 1998 and 
2000, but expenditures on research and development declined).845 The Section  129 Determination, 
therefore, reveals that the USITC acknowledged the existence of positive trends in certain factors.  
7.364.   Concerning the explanations for the state of the domestic industry, the USITC noted that 
the relief obtained by means of anti -dumping duties on imports from certain countries in mid -1999 
"did not last". The USITC explained that the domestic industry's  commercial shipment s declined at 
the same time as subject CVD imports continued to increase, with subject imports reaching peak 
levels between the end of 1999 and the first half of 2000. Further, inventories of subject CVD imports 
almost doubled from 1999 to 2000 and remaine d at high levels in the first quarter of 2001.846 
According to the USITC, increases in subject CVD imports in the first half of 2000 (before 
CVD petitions were filed) and peak levels of inventories adversely affected the performance of the 
domestic industry.847 The USITC noted that virtually every financial and production indicator was 
lower in 2001 as compared to 2000.848 Against this background, the USITC also acknowledged that 
the volume of CVD imports in 2001 was lower than in 2000, but attributed this declin e to the filing 
of the petitions in 2000 and to substantial importer inventories.849 The USITC therefore concluded 
that subject CVD imports had a significant adverse impact on the domestic industry.850  
7.365.   We find that the examination and the explanation provided  in the Section  129 Determination 
are consistent with the requirements of Article  15.4 of the SCM  Agreement. In particular, low levels 
of financial indicators corresponded to peaks in inventories of subsidized products. Besides, domestic 
shipments and prod uction contracted at a time when overall apparent domestic consumption was 
strong and subject CVD imports substantially increased.851 The USITC relied on this coincidence in 
time to prove  the impact of subject imports on the state of the domestic industry, a nd how the two 
are correlated. Furthermore, we are not persuaded by India's argument that the limited market 
share of subsidized imports would preclude a finding that subject imports had an impact on the state 
of the domestic industry. The USITC specifical ly discussed the market share of subsidized imports 
and found that it increased significantly during the POI, moving from 0.8% to 5.8% of apparent US 
consumption between 1998 and 2000 (from 246,688 short tons in 1998 to 1.1 million short tons in 
 
843 In a similar vein, see Appellate Body Report, China – GOES , para.  150. 
844 USITC's  Section  129 Determination, (Exhibit IND -58), pp.  25-27. 
845 USITC's  Section  129 Determination, (Exhibit IND -58), pp.  27-28. 
846 USITC's  Section  129 Determination, (Exhibit IND -58), p.  29. 
847 USITC's  Section  129 Determination, (Exhibit IND -58), p.  29. 
848 USITC's  Section  129 Determination, (Exhibit IND -58), p.  29. 
849 USITC's  Section  129 Determination, (Exhibit IND -58), p.  30. 
850 USITC's  Section  129 Deter mination, (Exhibit IND -58), p.  30. 
851 United  States'  first written submission, para.  127 (referring to USITC's  Section  129 Determination, 
(Exhibit IND -58), pp.  25-30). 
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  1999 and 1 .7 million short tons in 2000).852 This element was one of the factors that led the USITC 
to conclude that subject imports had an adverse impact on the domestic industry producing hot -
rolled steel, together with the increase in volume and price effects of su bject imports at a time where 
domestic shipments and production contracted.853  
7.366.   Based on the foregoing, we find that India has not demonstrated that the USITC acted 
inconsistently with Articles  15.1 and 15.4.854 
7.11.1   Conclusion  
7.367.   India has not demonstrated that the U SITC failed to examine the impact of subsidized 
imports on the state of the domestic industry.  
7.12  Causation  and non -attribution : India 's "as applied" claims under Articles  15.1 and  
15.5 of the SCM  Agreement  
7.12.1   Introduction  
7.368.   India claims that the USITC's causation and non -attribution analysis in the Section 129 
Determination is inconsistent with Articles  15.1 and 15.5 of the SCM Agreement. In particular, India 
makes the following claims:  
a. The USITC failed to demonstrate that su bsidized imports caused injury to the domestic 
industry . 
b. The USITC's non -attribution analysis failed to consider the impact of imports from 
non-subsidized sources, the reasons for the closures experienced by the domestic 
industry and the impact of contract ion in domestic demand. To the extent that the 
USITC considered these factors, India contends that it failed to explain their nature and 
impact.  
7.12.2   Whether the USITC's Section 129 Determination failed to demonstrate that 
subsidized imports caused injury to th e domestic industry  
7.369.   India claims that the USITC's Section 129 Determination is inconsistent with Articles  15.1 
and 15.5 of the SCM Agreement. India argues that the USITC's Section 129 Determination failed to 
assess "the nature of the injury being faced by  the …  domestic industry in view of the insignificant 
volume and price effects of the subsidized imports".855 
7.370.   India does not explain any further this part of its Article 15.5 claim . India's reference to the 
"insignificant" volume and price effects of subsidiz ed imports might be an allusion to the substance 
of its claims under Articles  15.2 and 15.4 of the SCM Agreement. This might, in turn, mean that this 
part of India's Article  15.5 claim is somehow dependent on India's  claims under Articles  15.2 and 
 
852 USITC's  Section  129 Determination, (Exhibit IND -58), pp.  21 and  30. 
853 USITC's  Section  129 Determination, (Exhibit IND -58), p.  30. 
854 In response to India's  argument that several indices of the United States'  industry showed positive 
trends (India's  first written submission, para.  51), the United States objects that India cannot make claims 
concerning the USITC's  examination of certain economic factors before this compliance Panel. 
(United  States'  first written submission, para.  88). The United States notes that India already challenged the 
consistency of the USITC's  examination of certain other industry factors with Article  15.4 of the 
SCM Agreement and the original panel concluded that India did not establish a prima facie case of 
inconsistency. (United  States'  first written submission, para.  88 (referring to Panel Report, US – Carbon Steel 
(India) , para.  7.408). In its second written s ubmission, India clarifies that its claim is not directed at the 
evaluation of the injury parameters per se , but rather at the alleged USITC 's failure to evaluate  the impact of 
subsidized imports on the injury parameters. (India's  second written submission, paras.  61-63). Since India is 
not seeking findings on the USITC's  examination of specific economic factors, we do not need to address the 
United States'  procedural objection.  
855 India's  first written submission, para.  58. India made similar rema rks in its opening statement at the 
substantive meeting with the Panel, para.  18. 
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  15.4. However, in the absence of additional arguments submitted to our attention,  we consider that 
India has failed to establish a prima facie case  supporting this part of its Article  15.5 claim.  
7.12.3   Whether the USITC's Section 129 Determination failed to consider the  impact of 
certain known factors in the non -attribution analysis  
7.371.   India claims that the USITC's Section 129 Determination is deficient with regard to the 
examination of the impact on the domestic industry of certain other injurious factors that were 
known t o the USITC. Specifically, India directs its claims to the alleged failure to consider the impact 
of the following three factors : (a) non -subsidized imports ; (b) the reason for the closure of certain 
plants ; and (c) contraction in domestic demand. To the e xtent that the USITC conducted a 
non-attribution analysis, India argues that it did not analyse each of those factors separately and 
failed to explain the nature and extent of their injurious  effects  by separating and distinguishing 
them from the injurious  effects of the subsidized imports.856 
7.372.   Before we turn to the examination of the parties' arguments, we will first set out the legal 
standard for the evaluation of India's claims under Articles  15.1 and 15 .5 of the SCM Agreement. 
The third and fourth sentences of Article  15.5 govern the non -attribution analysis that an 
investigating authority is required to conduct in CVD investigations. They read:  
The authorities shall also examine any known factors other than the subsidized imports 
which at the same time are injuring the domestic industry, and the injuries caused by 
these other factors must not be attributed to the subsidized imports. Factors which may 
be relevant in this respect include, inter alia,  the volumes and prices of non -subsidized 
imports of the product in question, contraction in demand or changes in the patterns of 
consumption, trade restrictive practices of and competition between the foreign and 
domestic producers, developments in techno logy and the export performance and 
productivity of the domestic industry.  
7.373.   At the outset, we note that the third sentence of Article  15.5 contains the word "shall", which 
means that the requirement to conduct a non -attribution analysis is mandatory in the presence of 
factors that are known to the investigating authority and are causing injury to the domestic industry 
at the same time as subsidized imports. The point in time when these factors produce their effects 
matters, as Article  15.5 unequivocally refe rs to factors causing injury "at the same time" as 
subsidized imports. A third important element in the third sentence of Article  15.5 is the qualifier 
"known". Accordingly, an investigating authority is required to conduct a non -attribution analysis 
only if the existence of other injurious effects is "known" to it either because an interested party has 
raised the issue during the investigation or on the basis of other elements. The fourth sentence 
contains an illustrative list of factors which "may be rele vant" in a non -attribution analysis. That the 
list is illustrative is clear because of the presence of the words "include" and "inter alia". The 
non-attribution analysis should thus not be confined to the illustrative list of factors provided in the 
fourth  sentence, and should instead encompass the whole range of injurious factors that are known 
to the authority.  
7.374.   The Appellate Body has held on more than one occasion that, through a non -attribution 
analysis, an investigating authority ensures that "the injur y it ascribes to the subsidized imports is 
actually caused by those imports", as opposed to other factors.857 Such an exercise requires that 
the effects of the various factors causing injury to the domestic industry be separated and 
distinguished.858 We agree with these clarifications on the scope and the nature of the non -
attribution analysis, and therefore we adopt them as our own in the evaluation of the matter before 
us. Finally, we note that Article  15.5 does not prescribe any specific methodology for the conduction 
of a non -attribution analysis.859  
7.375.   Against this background, we now turn to the specific claims raised by India.  
 
856 India's  first written submission, paras.  62-63 (quoting Panel Report, Mexico – Olive Oil , para.  7.305).  
857 Appellate Body Report, EU – PET (Pakistan) , para.  5.171 and the pr evious reports cited in fn 360 
thereto.  
858 Appellate Body Reports, US – Hot-Rolled Steel , para.  223; EU – PET (Pakistan) , para. 5.171.  
859 Appellate Body Report, EU – PET (Pakistan) , para.  5.172.  WT/DS436/ RW 
 
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  7.12.3.1   Whether the USITC's Section 129 Determination failed to consider the impact of 
non-subsidized imports on the state of the domestic indu stry 
7.12.3.1.1   Non-subsidized imports already subject to anti -dumping duties  
7.376.   India has brought an all -encompassing claim concerning the USITC's examination of the 
impact of all dumped , non-subsidized imports in its non -attribution analysis. In this subsection, we 
will examine the part of India's claim concerning the USITC's examination of imports from Brazil, 
Japan, and the Russian Federation. In the following subsection, we will examine the remainder of 
India's claim, concerning the USITC's examination of imports fr om China, Kazakhstan, the 
Netherlands, Romania, Chinese Taipei, and Ukraine. At the outset, we recall that the United States 
imposed CVDs on imports of hot -rolled steel from, inter alia , India in 2001. We further recall that 
anti-dumping duties on imports of the same product from Brazil, Japan, and the Russian Federation 
had been in force in the United States since 1999.  
7.377.   According to India, the  USITC's conclusion that no factors other than subject imports could 
explain the poor performance of the domestic i ndustry860 is contradicted by the circumstance that 
anti-dumping duties on hot -rolled steel products from Brazil, Japan, and the Russian Federation were 
already in force during the USITC's investigation.861 In other words, India argues that the imports  
from th ese three countries  were necessarily a factor other than subsidized imports causing injury to 
the domestic industry  and the United States failed to examine it .862 Furthermore, India argues that 
there is no rationale to presume that the injury determined to exist in the Section 129 Determination 
was not attributable to imports from Brazil, Japan, and the Russian Federation, even if their volume 
decreased subsequent to the imposition of anti -dumping duties.863  
7.378.   The United  States rebuts that the USITC explained why imports from Brazil, Japan, and the 
Russian Federation, already subject to anti -dumping duties, did not cause injury to the domestic 
industry at the same time  as subject subsidized imports. In particular, the USITC explained that the 
effects of these imports were mitigated following the imposition of anti -dumping duties in 1999, 
leading to a temporary improvement in the domestic industry's  performance.864 Accordi ng to the 
United  States, the subsequent deterioration of the state of the domestic industry corresponded with 
an increase in the volume of subject subsidized imports, and could thus  not be attributed to imports 
from Brazil, Japan, and the Russian Federatio n.865 Finally, the United  States argues that India's  claim 
is based on the erroneous  assumption that an investigating authority is prohibited from finding 
simultaneous  injury from dumped and subsidized imports over the same time  period.866  
7.379.   In its non -attribut ion analysis, the USITC noted that it had "already discussed the impact 
that the imports from Brazil, Japan, and Russia had on the domestic industry at the beginning of the 
period of the investigation".867 In this regard, we note the following discussion of the impact of 
imports from Brazil, Japan, and the Russian Federation in the Section 129 Determination:  
We recognize that the domestic industry's  performance in the early portion of the period 
of investigation reflected the adverse effects of unfairly trade d hot-rolled steel imports 
from Brazil, Japan, and Russia and that the industry had gained some benefit from the 
import relief imposed on such imports by mid -1999. For a brief time, domestic 
shipments increased, prices increased (although prices generally remained below peak 
1998 levels), and the domestic industry's  financial performance improved. This brief 
improvement is evident in the industry's  substantially better performance in first 
quarter 2000 not only compared to first quarter 2001, but also relat ive to its 
performance for full years 1999 and 2000. This improvement did not last. Despite 
increases in apparent U.S. consumption in the merchant market from 1999 to 2000, 
the domestic industry's  commercial shipments declined at the same time as subject 
 
860 USITC's  Section  129 Determination, (Exhibit IND -58), p.  32. 
861 India's  first written submission, para.  60; second written submission, para.  76. 
862 India's first written submission, para. 61 (a).  
863 India's  first written submission, para.  61(a).  
864 United  States' first written submission, para.  145. 
865 United  States'  first written submission, para.  145 (referring to USITC's  Section  129 Determination, 
(Exhibit IND -58), pp.  28-30); second written submission, para.  71. 
866 United  States'  second written submission, pa ra. 73. 
867 USITC's  Section  129 Determination, (Exhibit IND -58), p.  32. 
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  CVD imports continued to increase and reached peak period levels in late 1999 and the 
first half of 2000. Moreover, U.S. importers'  inventories of subject CVD imports almost 
doubled from 1999 to 2000 and remained at high levels in the first quarter of 2001.  
These increases in subject CVD imports in the first half of 2000 (prior to the November 
2000 filing of the petitions) that coincided with peak levels of purchasers'  inventories, 
to which low -priced subject CVD imports contributed, adversely affected the 
performance of the domestic industry. Virtually every financial and production indicator 
was lower in interim 2001 than in interim 2000.868  
7.380.   This excerpt from the Section  129 Determination permits the conclusion that imports from 
Brazil, Japan, and the Russia n Federation already subject to anti -dumping duties were considered in 
the context of a general discussion on the impact of non -subsidized imports and were also the 
subject of a specific examination by the USITC. In light of the foregoing, we reject India' s claim that 
the USITC failed to examine the impact of imports from Brazil, Japan, and the Russian Federation 
on the domestic industry  and to distinguish it from that of subject CVD imports.  
7.381.   A separate question is whether the USITC properly explained the n ature and extent of the 
effects of imports from Brazil, Japan, and the Russian Federation that were already subject to 
anti-dumping duties. In this respect, we find the following elements to be particularly useful for our 
assessment. First, the injurious e ffects of imports from Brazil, Japan, and the Russian Federation 
were concentrated at the beginning of the POI. By mid -1999, the domestic industry initially 
recovered due, inter alia , to the imposition of anti -dumping duties on exporters from the three 
above-mentioned countries. However, as observed by the USITC in the above extract, the situation 
of the domestic industry declined again at the same time as an increase in subsidized imports 
volumes and market share. In this regard, the United  States argues t hat this subsequent decline 
could not be attributed to non -subject imports from Brazil, Japan, and the Russian Federation, 
because the injurious effects of those imports were mitigated by the imposition of anti -dumping 
duties.869 The explanation provided by the United States is in line with the explanation rendered by 
the USITC in the Section 129 Determination as extracted above.870 We find this temporal distinction 
to be crucial, especially in consideration of the fact that Article  15.5 of the SCM  Agreement re quires 
that an investigating authority examine any known factors other than the subsidized imports which 
"at the same time" are injuring the domestic industry. Clearly, the analysis conducted by the USITC 
reveals that the injurious effects of the subject s ubsidized imports materialized after the injurious 
effects of imports from Brazil, Japan, and the Russian Federation would have been mitigated by the 
imposition of anti -dumping duties in 1999.  
7.382.   In this respect, India emphasizes the circumstance that, by im posing anti -dumping duties 
on imports from Brazil, Japan, and the Russian Federation, the USITC acknowledged that they were 
causing injury to the domestic industry.871 However, this allegation does not take into account the 
fact that the injury investigation  period for the anti -dumping investigation leading to the imposition 
of duties on imports from Brazil, Japan, and the Russian Federation covered the years of 1996, 1997, 
and 1998.872 As a result, there was only one year of overlap with the underlying CVD investigation. 
Also, the injury caused by imports from Brazil, Japan, and the Russian Federation was mitigated by 
the imposition of anti -dumping duties.  
7.383.   In light of these considerations, we conclude that the USITC analysed imports from Brazil, 
Japan, and the Russian Federation separately and explained the nature and extent of their effects 
on the state of the domestic industry.  
7.12.3.1.2   Non-attribution: "decumulated" dumped imports  
7.384.   In the original determination, the USITC cross -cumulated the injurious effects of subsi dized 
imports from Argentina, India, Indonesia, South Africa, and Thailand with those of dumped (non -
subsidized) imports from China, Kazakhstan, the Netherlands, Romania, Chinese Taipei, and Ukraine  
during the same investigation period . The premise of the Section  129 Determination lies in the 
original finding by the original panel and the Appellate Body that the USITC acted inconsistently with 
 
868 USITC's  Section  129 Determination, (Exhibit IND -58), pp.  28-29. (fns omitted)  
869 United  States'  second written submission, para.  71. 
870 USITC's  Section  129 Determination, (Exhibit IND -58), p. 29. 
871 India's  first written submission, para.  60. 
872 United States'  response to Panel question No.  66, para.  169. WT/DS436/ RW 
 
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  Article  15 of the SCM  Agreement by cross -cumulating the injurious impact of subsidized and 
dumped, non -subsidized i mports. In the Section 129 Determination, the USITC decumulated 
dumped imports from subsidized imports. The injury analysis in the Section 129 Determination, 
therefore, is only concerned with the effects of subsidized imports.  
7.385.   India argues that the USITC failed to examine in its non -attribution analysis the impact of 
dumped imports from China, Kazakhstan, Netherlands, Romania, Chinese Taipei, and Ukraine.873 
According to India, the USITC's  conclusion that no alternative cause can explain the poor 
performance of the domestic industry is contradicted by the imposition of anti -dumping duties 
against the six above -mentioned countries, which were simultaneously subject to a "trade remedial" 
investigation.874 To the extent that a non -attribution analysis was conducted, India argues that the 
USITC failed to explain the nature and the impact of dumped imports from China, Kazakhstan, 
Netherlands, Romania, Chinese Taipei , and Ukraine on the state of the domestic industry.875 
7.386.   In responding to ques tions raised by the Panel, t he United States maintains that Article  15.5 
refers to "the volumes and prices of non -subsidized imports of the product in question" and does 
not identify further subsets of non -subsidized imports that must be examined. Accordin g to the 
United States,  the covered Agreements  do not demand that an investigating authority segregates  
various groups of non -subsidized imports for the purposes of a non -attribution analysis.876 The 
United  States argues that the USITC closely examined the i mpact of non -subsidized imports. While 
recognizing that such imports had significant presence in the US  market during the POI, the USITC 
found that their volume and market share declined at the same time as the volume and market 
share of subsidized imports  increased.877 Further, the United  States argues that the USITC examined 
available pricing data concerning non -subject imports and found that non -subject imports were 
priced higher than subsidized imports in more than half of the quarterly comparisons.878  
7.387.   We now turn to the evidence before us in order to address India's claim. The USITC examined 
the impact of all the imports not subject to a CVD investigation (i.e. non -subject imports) as a single 
group in its non -attribution analysis. The relevant passage fro m the Section  129 Determination 
reads:  
We have also closely examined the role of nonsubject imports in this proceeding. While 
nonsubject imports had a significant presence in the U.S. market, they accounted for a 
substantially declining share of the U.S. m erchant and total market during the period of 
investigation. Nonsubject imports declined from 11.5 million short tons in 1998 to 5.7 
million short tons in 2000, or by 50.8 percent. Nonsubject imports'  share of apparent 
U.S. consumption in the merchant mark et declined from 36.2 percent in 1998 to 19.7 
percent in 2000, and was 20.3 percent in interim 2000 and 11.9 percent in interim 
2001. Moreover, the available pricing data for imports from six nonsubject sources 
(China, Kazakhstan, Netherlands, Romania, Tai wan, and Ukraine) indicate that 
nonsubject imports as a group were priced higher than subject CVD imports in 231 of 
453 quarterly price comparisons. In addition, we have already discussed the impact that 
the imports from Brazil, Japan, and Russia had on th e domestic industry at the 
beginning of the period of investigation.879 
7.388.   We note that the USITC discussed the decline in volume and market share of the whole of 
non-subject imports over the injury investigation period, without distinguishing between goods 
subject to the anti -dumping investigation and goods not subject to any trade remedy proceeding. 
In response to the Panel's questioning, the United States stresse d that Article  15.5 refers to "the 
volumes and prices of non -subsidized imports of the product in question" as a potential other known 
 
873 India's  first written submission, para.  61(a).  
874 India's  second written submission, para.  76. 
875 India's  second written submission, para . 79. 
876 United States'  response to Panel question No.  67, paras.  170-171. 
877 United  States'  first written submission, para.  144; second written submission, para.  71. 
878 United  States'  first written submission, para.  144; second written submission, para.  71. 
879 USITC's  Section  129 Determination, (Exhibit IND -58), pp.  31-32. (fns omitted)  
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  factor which might cause injury to the domestic industry at the same time as subsidized imports and 
does not identify further subsets of non -subsidized imports that must be examined.880 
7.389.   We recall that the list of potentia l other known factors laid down in Article  15.5 is 
non-exhaustive.881 The non -attribution analysis should necessarily be conducted on a case -by-case 
basis, and the factors that an authority is supposed to consider in such an exercise vary according 
to the sp ecific circumstances of the investigation and the situation in the market for the product 
concerned. While it is true that Article  15.5 does not explicitly require an investigating authority to 
break down the whole range of non -subsidized products, it does  not exclude this possibility either. 
While imports from all third countries might not necessarily be injurious, there can be situations 
where the authority is aware that imports from a subset of third countries are. The Section 129 
proceedings at issue he re are one such case.   
7.390.   Pursuant to the original investigation, the United States imposed anti -dumping duties on 
imports from China, Kazakhstan, Netherlands, Romania, Chinese Taipei , and Ukraine. It was the 
USITC  itself that concluded that dumped imports from these countries were causing injury to the 
domestic industry, a necessary condition for the imposition of anti -dumping duties. We further recall 
that the original anti -dumping investigation was conducted simu ltaneously with the original 
CVD investigation, and covered the exact same injury investigation period. Dumped imports from 
China, Kazakhstan, Netherlands, Romania, Chinese Taipei , and Ukraine were thus a factor known to 
the USITC which caused injury to th e domestic industry at the same time as subsidized imports.  
7.391.   The USITC opted to consider the impact of non -subsidized imports as a single factor. We 
note, however, that the data annexed to the Section  129 Determination suggests that the 
decumulated dumped imports had a different impact vis-à-vis the imports from all other sources, 
which in turn warranted a separate assessment. While the volume of the whole of non -subject 
imports decreased from 11.5 million short tons in 1998 to 5. 6 million short tons in 200 0 (i.e.  by 
50.8%), decumulated dumped imports increased from 1. 2 million short ton nes in 1998 to 2. 6 million 
short ton nes in 2000 (i.e. by 124.7%).882 Similarly, while the share of apparent US  consumption in 
the merchant market of the whole of non -subject im ports declined from 36.2% in 1998 to 19.7% in 
2000, the share of decumulated dumped imports increased from 3.6% in 1998 to 9% in 2000 
(i.e. +5.4%).883 
7.392.   Two main elements can be extracted from the data reproduced above. First, both as regards 
import volumes and share of apparent US  consumption, decumulated dumped imports follow 
divergent trends as opposed to the rest of non -subject imports. In particular, over the POI, the 
decumulated dumped imports'  volumes and share of apparent US  consumption substa ntially 
increased while the rest of non -subject imports decreased. Second, decumulated dumped imports 
and subsidized imports follow parallel trends with regard to both sets of data, and decumulated 
dumped imports'  volumes and share of  apparent US  consumpti on are higher than the figures for 
subsidized imports throughout the whole POI. In light of the diverging trends between decumulated 
dumped imports and the rest of non -subject imports, it could have been expected that a reasonable 
and unbiased investigatin g authority would  have identified these differences and provided an 
adequate explanation that it was not attributing to subject imports the injury that it had concurrently 
found to be caused to the domestic industry by decumulated dumped imports. The USITC  failed to 
do so. Instead, even though it had concluded in a concurrent anti -dumping investigation that such 
dumped imports were causing injury to the domestic industry, the USITC essentially ignored this 
other known cause of injury and considered the impa ct of non -subsidized imports as a single factor, 
aggregating the effects of decumulated dumped imports with those of other non -subject imports 
from other third countries.  
7.393.   The USITC also compared the pricing data for decumulated dumped imports with those o f 
subsidized, subject imports from India, concluding that such Indian imports were priced lower than 
decumulated dumped imports in 77 of 128 quarterly price comparisons.884 Our concerns with this 
examination are twofold. First, the USITC draws a conclusion f or the entire set of non -subsidized 
products by exclusively looking at the prices of imports from six countries. Second, the USITC limits 
 
880 United States'  response to Panel question No.  67, para.  170. 
881 See above para. 7.373 . 
882 USITC's  Section  129 Determination, (Exhibit IND -58), table No.  HRS-1, p. I-2. 
883 USITC's  Section  129 Determination, (Exhibit IND -58), table No.  HRS-1, p. I-5. 
884 USITC's  Section  129 Determination, (Exhibit IND -58), fn 135.  WT/DS436/ RW 
 
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  itself to a comparison between the prices of dumped, non -subsidized products with those of Indian 
like products. Nowhe re does the USITC compare the prices of dumped, non -subsidized products with 
the prices of the domestic like product in the United States. As such, the Section 129 Determination 
is silent on the impact of decumulated dumped imports on the price s for the do mestic like product 
in the United States.  
7.394.   While recalling that an investigating authority is not required to follow any specific 
methodology for a non -attribution analysis, it is expected to make its conclusions on the basis of all 
the available  evidence  before it . The record evidence suggests that the USITC omitted to consider 
evidence that it had already collected, and therefore was immediately available to it.  
7.395.   Based on the foregoing, we find that the USITC failed to acknowledge the existence of 
decumula ted dumped imports as a factor, distinct from other non -subsidized imports more generally, 
causing injury to the domestic industry. As a result, we conclude that the USITC acted inconsistently 
with Article s 15.1 and  15.5 of the SCM  Agreement.  
7.12.3.2   Non-attribution: plant closures  
7.396.   India argues that the USITC failed to note that during the POI US producers experienced 
several plant closures and interruptions to their production of  hot-rolled steel products. According to 
India, the causes reported in the o riginal determination for the closures and interruptions included 
equipment failure, installation of new equipment, power outages , and reduced demand, and were 
thus unrelated to imports.885  
7.397.   The United  States preliminarily objects that this claim is outside the Panel's  terms of 
reference. According to the United  States, the facts pertaining to the closure of domestic facilities 
during the POI were unchanged from the original investigation and were not raised in the original 
proceedings.886 In addition, the Unit ed States submits that no interested party raised the issue in 
the context of the CVD investigation and that, in any event, the USITC did not find that plant closures 
caused injury.887 Further, the United  States argues that the USITC did not attribute the pl ant closures 
to subsidized imports, nor did it establish that they were indicative of material injury.888 The 
United  States reports that the USITC actually noted that the closures did not prevent the 
US production capacity from increasing.889 In conclusion, th e United  States argues that since the 
USITC did not find the plant closures to be injurious, and no interested party argued otherwise in 
the CVD investigation, these were not a known factor that deserved evaluation pursuant to 
Article  15.5 of the SCM  Agree ment.890  
7.398.   We first address the United  States'  objections as to the inclusion of this claim in the scope 
of these compliance proceedings. The United  States correctly notes that plant closures were already 
discussed in the context of the original determination , that the factual background remained 
unchanged and that India did not bring related claims in the original WTO proceedings. The closure 
of plants can be considered as a severable aspect from the measure taken to comply with the adverse 
rulings.891 For thes e reasons, we consider this claim to be outside the scope of these compliance 
proceedings.  
7.399.   In any event, even if we were to examine the merits of India's claim, we would not find that 
the USITC acted inconsistently with the requirement laid down in Articl es 15.1 and 15.5 for the 
following reasons. In this respect, it  is relevant to stress that India's claim concerns the alleged 
failure by the USITC to "note" the causes892 for the plant closures and to ensure that they were not 
 
885 India's  first written submission, para.  61(b).  
886 United  States'  first written submission, para.  92. India responds that the non -attribution analysis in 
the Section  129 Determination is a compl etely distinct examination as opposed to the non -attribution analysis 
conducted in the original investigation against the background of a cumulative assessment of dumped and 
subsidized imports. (India's  second written submission, para.  48(e)).  
887 United  States' first written submission, para.  146. 
888 United  States'  first written submission, para.  146. 
889 United  States'  first written submission, para.  146. 
890 United  States'  first written submission, para.  147. 
891 Appellate  Body Report, US – Zeroing (EC) (Article  21.5 – EC), para.  432. 
892 India's  response to Panel question No.  68. 
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  attributed to subject CVD impor ts in the Section  129 Determination. We extract  below the relevant 
passage from the Section  129 Determination:  
Despite increased production and shipments, the domestic industry's  financial 
performance was poor during most of the period of investigation. Th e domestic industry 
had operating losses on commercial and total U.S. sales in both 1999 and 2000 . Several 
domestic producers entered Chapter 11 bankruptcy proceedings and two ceased 
operations altogether , despite increases in both commercial shipments and  
production.893 
7.400.   The United  States affirms that while the USITC noted several plant closures, it did not 
attribute them to subsidized imports, nor did it establish that they were indicative of material injury, 
and in fact concluded that the closures did not p revent the US  industry's  production capacity from 
increasing during this period.894 In a footnote, the United  States explains that the USITC referred to 
closures only to demonstrate why some domestic producers had not provided responses to the 
questionnaires .895 We note that the passage reproduced above is essentially identical to the relevant 
portion of the 2001 original determination.896  
7.401.   India's  claim is simply directed at the USITC's  alleged "failure to note" the causes for closure 
of several plants. However,  India does not explain how this alleged "failure to note" rendered the 
USITC's  non-attribution analysis inconsistent with Article  15.5 of the SCM  Agreement. Nothing in 
India's  claim calls upon the Panel to address the merits or the substance of how the US ITC 
considered such plant closures. Since the record evidence proves that the USITC acknowledged this 
evidence, we dismiss India's  claim.  
7.402.   In addition, India provides a list of factors that could explain the closure of plants (equipment 
failure, installati on of new equipment, power outages, fires , and reduced demand).897 However, it 
does not clearly explain or substantiate that there was another "known factor" causing injury to the 
domestic industry. In this respect, we note that an investigating authority ne ed only address an 
alleged factor raised by an interested party where sufficient evidence has been provided that the 
factor causes injury.898 India has not satisfied the Panel that the USITC  had a sufficient threshold of 
evidence before it to warrant the explicit and discrete consideration of an "other known factor".  
7.403.   In this regard, the United  States notes in its second written submission that neither India, 
nor any other interested party sug gested that the USITC should investigate the reasons for the plant 
closures, or that such reasons could amount to factors that needed to be examined for the purposes 
of a non -attribution analysis.899 The evidence shows that India mentioned plant closures in the 
context of a request to the USITC to consider the decline in productivity of the domestic industry in 
its injury analysis.900 In that context, India noted that "certain internal issues" experienced by 
US producers were responsible for any individual decl ine in the production and sale of the domestic 
producers, and that therefore closures and interruptions should be taken into account in the 
assessment of the impact of subsidized imports.901 India did not substantiate its request further, nor 
did it provide supporting evidence.  
7.404.   The USITC examined India's  request explicitly in the non -attribution analysis and concluded 
that, notwithstanding a decline between 2000 and 2001, productivity increased substantially for 
most of the period (i.e. between 1998 and 2000) .902 Because the USITC concluded that injury did 
not materialize as a decline in productivity, it logically did not need to investigate as to the causes 
 
893 USITC's  Section  129 Determination, (Exhibit IND -58), pp.  27-28. (emphasis added; fn omitted)  
894 United  States'  first written submission, para.  146. 
895 United  States'  first written submissi on, fn 170 (referring to USITC's  Section  129 Determination, 
(Exhibit IND -58), pp.  27-28; and 2000 Issues and decision memorandum , (Exhibit IND -6), p.  III-1). 
896 Compare USITC's  2001 Determination, (Exhibit IND -5), p.  23. 
897 India's  first written submission, para. 61(b).  
898 Panel Report, EU – Fatty Alcohols (Indonesia) , paras.  7.196 -7.200.  
899 United  States'  second written submission, para.  76. 
900 GOI's  Section 129 brief, (Exhibit USA -31), paras.  6.1-6.2. 
901 GOI's  Section 129 brief, (Exhibit USA -31), para.  6.2. 
902 USITC's  Section  129 Determination, (Exhibit IND -58), p.  32. 
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  for this non -existent decline. Furthermore, India does not claim that the USITC's  conclusion that the 
domestic industry's  productivity did not decline was flawed.  
7.405.   Based on the foregoing, even if we were to consider that this claim is within the scope of 
these compliance proceedings, we would conclude that the United  States did not act inconsistently 
with Article 15.5 of the SCM  Agreement.  
7.12.3.3   Non-attribution: contraction in demand  
7.406.   India argues that the USITC failed to examine the injury caused to the domestic industry by 
the decline in US  domestic demand during the POI.903 India reports data from the tables annexed to 
the Section  129 Determination showing that US  consumption declined by 10% between 1998 and 
2000.904  
7.407.   The United  States rebuts that the USITC explicitly examined demand trends as an alternative 
cause of injury.905 According to the United  States, the USITC ex plained that the demand changes 
could not explain the injury suffered by the domestic industry, because of a temporal mismatch 
between declines in domestic industry's  indicators (which began early in 2000) and declines in 
demand (which began later that yea r).906 The United  States further notes that while apparent 
US consumption also declined between 1998 and 1999, other indicators improved during the same 
period (production, shipments, and market share) and the USITC did not find that indicators in that 
period amounted to evidence of material injury.907 
7.408.   The main question for the Panel is whether the USITC considered contraction in demand as 
a factor, other than subsidized imports, causing injury to the domestic industry. The text of the 
Section  129 Determination  shows that, in the context of its non -attribution analysis, the USITC did 
consider the potential injury caused by the contraction in demand:  
We have considered factors other than subject CVD imports to ensure that we are not 
attributing any injury from o ther such factors to subject imports. We recognize that the 
domestic industry's  condition was affected by a decline in apparent U.S. consumption  
in the latter part of 2000,[131] but also find that domestic shipments and production 
contracted at a time when  overall apparent consumption was still strong and while 
rapidly increasing subject imports gained sales from the domestic industry largely 
through underselling. Specifically, the decline in demand  for hot -rolled steel did not 
occur until the end of 2000, yet the substantial drop in the domestic 
industry's  commercial shipments began in the beginning of 2000 as low -priced subject 
CVD import volumes reached peak period levels.[132] 908 
[131] The industrial production index peaked in the third quarter of 2000 and  declined thereafter. 
USITC Pub. 3446 at II -7. 
[132] USITC Pub. 3446 at Table III -5 and calculated from V -10-V-11. Based on quarterly data, the 
domestic industry's  commercial shipments were 6.0 million short tons in first quarter 2000, 5.6 
million short to ns in second quarter 2000, 4.9 million short tons in third quarter 2000, and 4.7 
million short tons in fourth quarter 2000. Id. at Table III -5. Moreover, commercial shipments, 
which compete directly with subject CVD imports, declined by 19.2 percent from f irst quarter 2000 
to third quarter 2000, whereas internal consumption declined only by 5.3 percent for the same 
period. Id. 
7.409.   Not only did the USITC recognize the decline in demand, but it also separated the injurious 
effects of this factor from the injuriou s effects of subsidized imports. In particular, the USITC found 
that the decline in demand only started at the end of 2000, while the domestic shipments had already 
started their contraction at the beginning of 2000, at the same time as subsidized imports peaked.909  
 
903 India's  first written submission, para.  61(c); second written submission, para.  72. 
904 India's  first written submission, para.  61(c).  
905 United  States'  first written submission, para.  143. 
906 United  States'  first written submission, para.  143; second written submission, para.  71. 
907 United  States'  first written submission, fn 163.  
908 USITC's  Section  129 Determination, (Exhibit IND -58), p.  31. (emphasis added)  
909 USITC's  Section  129 Determination, (Exhibit IND -58), p.  31. WT/DS436/ RW 
 
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  7.410.   Therefore, we conclude that India has not demonstrated that the USITC  has failed to 
separate and distinguish the impact of the contraction in demand on the domestic industry from the 
impact of subsidized imports.  
7.12.4   Conclusion  
7.411.   India has not demonstrated that the USITC failed to establish a causal relationship between 
subsidiz ed imports and the injury to the domestic industry.  
7.412.   India has not demonstrated that the USITC, in its non -attribution analysis, failed to consider 
the impact of goods from Brazil, Japan, and the Russian Federation . 
7.413.   India has demonstrated that the USITC failed to consider the impact of dumped imports 
from China, Kazakhstan, Netherlands, Romania, Chinese Taipei, and Ukraine on the injury suffered 
by the domestic industry and to separate and distinguish it from the effe cts of subsidized imports 
and other known factors.  
7.414.   India's claim that the USITC failed to consider the cause for the closure of several plants is 
outside the scope of these compliance proceedings.  
7.415.   India has not demonstrated that the USITC, in its non -attribution analysis, failed to consider  
the contraction in demand.  
7.13  Whether the USDOC 's termination of previously agreed CVD rates is inconsistent 
with Article  19.3 of the SCM  Agreement  
7.13.1   Factual background  
7.416.   In the 2006 administrative review, the USDOC determined a CVD of 484.41%910 on the 
importation of JSW 's hot-rolled flat steel products. The U SDOC applied total adverse facts available 
to JSW for its failure to fully participate in the investigation. JSW challenged the USDOC 's decision 
before the Court of Internat ional Trade (CIT) and, in December 2010, the USDOC and JSW settled 
the case by agree ing on a CVD rate for JSW  of 76.88 %.911 
7.417.   In the 2008 administrative review, the USDOC determined a CVD of 577.28%912 on the 
importation of Tata 's hot-rolled flat steel products.  The U SDOC applied total adverse facts available 
to Tata for its failure to fully participate in the investigation. Tata challenged the USDOC 's decision 
before the CIT and, in December 2011, the USDOC and Tata settled the case by agree ing on a CVD 
rate for Tata  of 102.74%.913 
7.418.   India requested WTO consultations in 2012. Before the original panel, India challenged the 
application of facts available to the evaluation of certain subsidy program mes. India did not challenge  
the rates agreed upon by the USDOC with  JSW and Tata in the context of domestic court 
proceedings. The original panel found that the USDOC acted inconsistently with Article  12.7 of the 
SCM Agreement  with regard to the evaluation of seven subsidy schemes and the United  States  did 
not appeal thes e findings.914 The United  States  launched Section  129 proceedings to comply with 
the DSB recommendation concerning the original determination. In that context, the USDOC 
reviewed its application of facts available in respect of JSW and Tata in the 2006 and 2 008 reviews, 
and determined CVD rates of 215.54% for JSW and 140.18% for Tata.915  
7.419.   In the Section  129 proceedings, JSW contested that the USDOC failed to consider that an 
agreed rate was already in place. In its response, the USDOC argued that JSW 's objectio n did not 
fully take into account the US  law governing redeterminations in the aftermath of unfavourable 
 
910 India's  first written submission, para.  225. 
911 JSW Amended final results (2010) , (Exhibit IND -48), p.  1. 
912 India's  second written submission, para.  226. 
913 Tata Amended final results (2011) , (Exhibit  IND-49), p.  1. 
914 Panel Report, US – Carbon Steel (India) , paras.  7.451 -7.475.  
915 USDOC Implementation of Section  129 Determination, (Exhibit USA -17), p.  27414.  
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  WTO dispute settlement proceedings.916 The USDOC explained that under Section  129 of the URAA, 
when so requested by the Office of the USTR, an investigat ing authority (be it the USITC or the 
USDOC) must issue a determination that would render its action not inconsistent with the Panel's  or 
Appellate  Body's findings.917 The USDOC noted that the Statement of Administrative Action  
connected with Section  129 provides that such determination has prospective effects only and is a 
"new", " second " and "different" determination.918 The USDOC also noted that such  a determination 
is subject to domestic judicial review, independent from the review of the original determination that 
was previously found to be WTO -inconsistent.919 Finally, the USDOC concluded that having prevailed 
on certain WTO  claims, India must underst and that the resulting Section  129 redetermination 
supersedes previous steps in the investigation, including final results and accompanying cash deposit 
rates.920 
7.420.   India argues that the USDOC had two applicable CVD rates: the CVD rates determined in 
the conte xt of the settlement  agreement s between the USDOC, on one side, and JSW and Tata, 
respectively, on the other; and the newly determined CVD rates determined in the Section  129 
proceedings. India argues that  the USDOC acted inconsistently with the requiremen t laid down in 
Article  19.3 that duties be levied in the appropriate amounts , by failing to compare the two rates 
and to explain why the newly determined CVD rates were to be preferred to the lower settlement 
rates.921 The parties do not contest t he factual background to India 's claim. Therefore, we turn 
immediately to our analysis.  
7.13.2   The Panel's  analysis  
7.421.   Article  19.3 of the SCM  Agreement  reads, in relevant part:  
When a countervailing duty is imposed in respect of any product, such countervailing 
duty shall be  levied, in the appropriate amounts in each case, on a non -discriminatory 
basis on imports of such product from all sources found to be subsidized and causing 
injury, except as to imports from those sources which have renounced any subsidies in 
question or  from which undertakings under the terms of this  Agreement  have been 
accepted.  
7.422.   In support of its claim, India refers to the Appellate  Body report in US – Anti-Dumping and 
Countervailing Duties (China) , according to which the notion of "appropriate amounts" implies a 
certain tailoring of the CVD levied, according to the specific circumstances of the case.922 According 
to India, in the current proceedings , two CVD rates were applicable: one determined by m eans of a 
settlement in the context of domestic court proceedings; and another one determined in the context 
of a subsequent Section  129 redetermination.923 India argues that the USDOC should have compared 
the two rates and explained why the revised CVD rate determined in the context of the Section  129 
proceedings was the "appropriate amount" of CVD levied on imports produced by  JSW and Tata.924 
7.423.   The United  States  responds that Article  19.3 of the SCM  Agreement  is essentially concerned 
with the non -discriminator y application of CVDs , as appropriate to each source of imports.925 In the 
United  States ' view, neither Article  19.3 of the SCM  Agreement  nor any other provision of the 
SCM Agreement  or the DSU impose a "ratchet", whereby if a CVD rate was lower in the past,  it may 
not be increased in the future.926 The United  States  further argues that India incorrectly relies on 
the Appellate  Body's interpretation of Article  19.3. According to the United  States , the 
Appellate  Body's interpretation of Article  19.3 in US – Anti-Dumping and Countervailing Duties 
(China) is incorrect insofar as it considers the provision to relate not only to the imposition of the 
 
916 Final Determination, (Exhibit IND -60), p.  7. 
917 Final Determination, (Exhibit IND -60), p.  7. 
918 Final Determination, (Exhibit IND -60), p.  7. 
919 Final Determination, (Exhibit IND -60), p.  7. 
920 Final Determination, (Exhibit IND -60), p.  8. 
921 India's  first written s ubmission, paras.  236 and 239.  
922 India's  first written submission, para.  235 (referring to Appellate  Body Report, US – Anti-Dumping 
and Countervailing Duties (China) , paras.  552-553).  
923 India's  first written submission, paras.  225-226; second written submi ssion, para.  272. 
924 India's  second written submission, para.  273. 
925 United  States'  first written submission, para.  415. 
926 United  States'  first written submission, para.  400. 
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  duties, but also to their calculation.927 Moreover, the United  States  notes that the Appellate  Body 
report in US – Anti-Dumping and Countervailing Duties (China)  does not provide useful guidance 
since that case concerned the double imposition of anti -dumping duties and CVDs  on the same 
product, whereas the Section  129 redetermination is concerned with a different factua l situation.928 
Finally, the United  States  argues that the rates determined by the USDOC are entirely appropriate 
and tailored to the circumstances: the USDOC redetermined the CVD  calculations with a view to 
bringing its measures into conformity with the DSB recommendation and the ensuing Section  129 
rates correlate to the subsidy program mes affected by the findings in the original WTO dispute.929 
By contrast, the USDOC had reached a settlement with JSW and Tata in the context of the domestic 
court proceedings that took place before the original WTO dispute started and thus bore no relation 
to an analysis of individual subsidy program mes.930 Therefore, the United  States  argues that reliance 
on those previously agreed rates would not have been proper.931  
7.424.   The Appellate Body read the first sentence of Article  19.3 as containing two distinct 
elements:  a requirement that duties be levied in the appropriate amounts in each case ; and a 
requirement that duties be levied on a non -discriminatory basis on imports from all sources found 
to be subsidized and causing injury.932 It therefore concluded that Article  19.3 of the SCM  Agreement  
is not simply a non -discrimination provision, as a rgued by the United  States  in its submissions. More 
than that, it contains a n obligation that , while meeting the non -discrimination requirement,  duties 
be levied in the appropriate amounts. To properly address India 's claims, it is necessary to clarify 
the meaning and the scope of this requirement  in light of the facts of this case , noting that Article  9.2 
of the Anti -Dumping  Agreement  contains, mutatis mutandis , identical language and that both 
Article  19.3 of the SCM  Agreement  and Article  9.2 of the Anti -Dumping  Agreement  have already 
been interpreted by previous panels and the Appellate  Body.  
7.425.   The Appellate  Body in US – Anti-Dumping and Countervailing Duties (China)  noted that the 
dictionary definitions of the term "appropriate" include "proper", "fitting " and "specially suitable ( for, 
to)".933 These definitions suggest the existence of core norms that require adaptation to particular 
circumstances.934 The Appellate  Body considered that, in light of the content of the first sentence of 
Article  19.3, it would not be appropriate to levy CVDs  on imports from sources that have renounced 
relevant subsidies, or on imports from sources whose price undertakings have been accepted .935 
Similarly, the notion of "appropriate amounts" requires a certain tailoring of the amounts according 
to the circumstances, meaning that the requirement that duties be imposed on a non -discriminatory 
basis should not be read in a formalistic manner.936 We consider that this characterization of the 
ordinary meaning of "appropriate amounts" is persuasive and we adopt it as our own.  
7.426.   Interpreting "appropriate amounts" in its context, the Appellate  Body turned to the other 
paragraphs of Article  19 and warned aga inst ascribing great significance to the requirement in 
Article  19.4 that CVDs  not be imposed on imported products in excess of the amount of the subsidy 
found to exist, calculated in terms of subsidization per unit of the subsidized and exported product. 
In the Appellate  Body's view, the imposition of CVDs  in excess of the amount of subsidization is not 
the only circumstance where duties are not levied in their "appropriate amounts".937  
7.427.   The Appellate  Body further noted that Article  19.2 states that it is "d esirable" that duties be 
less than the total amount of the subsidy if such lesser duty is adequate to remove the injury (the 
 
927 United  States'  first written submission, para.  430. 
928 United  States'  first written submission, para.  434. 
929 United  States'  first written submission, paras.  437-439. 
930 United  States'  first written submission, para.  440. 
931 United  States'  first written submission, para.  440; second written submission, para.  260. 
932 Appellate  Body Report, US – Anti-Dumping and Countervailing Duties (China) , para.  552. 
933 Appellate  Body Report, US – Anti-Dumping and Countervailing Duties (China) , para.  552 and fn  531 
(quoting Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), Vol. 1, 
p. 106).  
934 Appellate  Body Report, US – Anti-Dumping and Countervailing Duties (China) , para.  552. 
935 Appellate  Body Report, US – Anti-Dumping and Countervailing Duties (China) , para.  553. 
936 Appellate  Body Repor t, US – Anti-Dumping and Countervailing Duties (China) , para.  553. 
937 Appellate  Body Report, US – Anti-Dumping and Countervailing Duties (China) , paras.  555-556. We 
note that a previous panel examining a claim brought under Article  9.2 of the Anti -Dumping  Agreement found 
it reasonable to conclude that an anti -dumping duty meeting the requirements of Article  9.3 (i.e. not exceeding 
the margin of dumping) would be "appropriate" within the meaning of Article  9.2. (Panel Report, Argentina – 
Poultry Anti -Dumping Duties , para.  7.365).  
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  so-called "lesser -duty rule"). According to the Appellate  Body, Article  19.2 "encourages" 
investigating authorities "to link the ac tual amount of the countervailing duty to the injury to be 
removed".938 The Appellate  Body inferred from these considerations that the imposition and levying 
of CVDs  are not "hermetically isolated" from considerations pertaining to the injury suffered by the  
domestic industry.939 It is important to stress, however, that the Appellate  Body reached these 
conclusions based on a situation where countervailing and anti -dumping duties were simultaneously 
imposed and levied in respect of the same products exported by the same producers. In that context, 
the Appellate  Body found that an investigating authority should not ignore, when fixing the 
appropriate amount of CVDs , that anti -dumping duties are simultaneously in place to offset the same 
subsidization.940 Noting that  both Article  19.4 of the SCM  Agreement  and Article  9.3 of the 
Anti-Dumping  Agreement  set ceilings on the maximum amount of duties that can be imposed to 
remedy subsidization and dumping, respectively941, the Appellate  Body concluded that a joint 
reading of the two  Agreement s suggests that "the imposition of double remedies would circumvent 
the standard of appropriateness that the two  Agreement s separately establish for their respective 
remedies".942 In other words, according to the Appellate  Body, the simultaneous levying of a total 
amount of anti -dumping and CVDs  would not be appropriate and would be in excess of the combined 
amounts of dumping and subsidization found by the investigating authority.943 In light of the different 
underlying scenario, we consider this reasoning of the Appellate  Body to be of limited practical 
relevance for the reso lution of the case before us.  
7.428.   The facts on the record show that  the United  States  took steps to remedy an inconsistency 
found in the original WTO dispute . Since the original WTO proceedings  concerned the application of 
adverse facts available for the deter mination of the subsidization received by the two companies, 
and that element was found to be WTO -inconsistent, the USDOC revised its determination of the 
rates of subsidization in the 2006 and 2008 reviews. The U SDOC did not compare the adequacy of 
the CVD rates stemming from the reviewed subsidization rates with the rates previously agreed in 
the context of CIT proceedings. The question for the Panel is whether the USDOC should have done 
so. 
7.429.   As a preliminary matter, we note that the SCM Agreement says not hing about rates that 
may or may not be agreed in the context of domestic court proceedings. This is a matter for domestic 
law. Furthermore, a  closer look at the JSW and Tata Amended Final Results  summarising the results 
of the settlements reveals that the  agreed rates were to remain in place until the  USDOC changed 
them in future administrative reviews of the respective firms.944 The explanation provided by the 
USDOC in response to JSW in the Section  129 Determination is consistent with this. The USDOC, in 
fact, clarified that the Section  129 Determination has prospective effects and is a "new", "second", 
and "different" determination compared to the amended final results. As a result of the determination 
of new CVD rates for the two companies, the previousl y agreed rates were no longer relevant. Th us, 
even if the provisions of the SCM Agreement were somehow applicable in this context,  we still cannot  
see how a consideration of the "appropriateness" of the CVDs  levied would have required any 
comparison with p reviously settled  rates.  
7.430.   India further argues that the USDOC  failed to provide a reasoned and adequate explanation 
for its decision to disregard the previously agreed rates.945 We disagree with India for the following 
reasons. First, as already concluded above, the USDOC was not required to weigh newly determined 
CVD rates against previously agreed ones. Second, we note that of the two interested exporting 
producers concerned, only JSW submitted comments to the USDOC in the context of the Section  129 
Determination. In response to JSW, the USDOC explained that the Amen ded Final Results  did not 
render the results of the Section  129 Determination moot, because the latter is a new and separate 
segment of the proceedings, with prospective effects and reviewable under US  law.946 In addition, 
 
938 Appellate  Body Report, US – Anti-Dumping and Countervailing Duties (China) , para.  557. 
939 Appellate  Body Report, US – Anti-Dumping and Countervailing Duties (China) , para.  558. 
940 Appellate  Body Report, US – Anti-Dumping and Counterva iling Duties (China) , paras.  571 and 582.  
941 I.e. the amount of the subsidy found to exist, in the case of Article  19.4 of the SCM  Agreement; and 
the margin of dumping in the case of Article  9.3 of the Anti -Dumping  Agreement.  
942 Appellate  Body Report, US – Anti-Dumping and Countervailing Duties (Chin a), para.  572. 
943 Appellate  Body Report, US – Anti-Dumping and Countervailing Duties (China) , para.  572. 
944 JSW Amended final results (2010) , (Exhibit IND -48), p.  1; Tata Amended final results (2011) , 
(Exhibit IND -49), p.  1. 
945 India's  first written submission, para.  239. 
946 Final Determination, (Exhibit IND -60), p.  7. 
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  the USDOC clarified that all the JS W's entries subject to the 2006 review were liquidated on the 
basis of the agreed rates and that the already liquidate d entries were not affected by the Section  129 
Determination.947  
7.431.   In the absence of an affirmative obligation to compare newly determined ra tes and rates 
previously agreed in the context of domestic court proceedings, we consider that the explanation 
rendered by the USDOC is reasoned and adequate. In fact, since the USDOC was not under an 
obligation to conduct the said comparison, it could not  be expected to elaborate further on the 
matter, also in light of the limited scope of the comments raised by interested parties in the 
Section  129 proceedings.  
7.432.   While we do not exclude that previously determined rates can be relevant for the assessment 
of the appropriateness of the rates of CVD to be levied under different factual scenarios, the specific 
circumstances of this case point to the conclusion that the USDOC was not obligated to take the 
previously agreed rates into account in the Section  129 Determination. In particular, we note the 
United  States ' argument that the settlement rates were based on the  agreement between the 
interested parties reflecting th eir respective considerations on the risks and benefits of the 
continuation of domestic court proceedings.948 Accordingly, the United  States  maintains that reliance 
on the settled rates would not be proper because those rates were not based upon specific mar gins, 
they bore no relation to an analysis of the subsidies received by the investigated exporting 
producers, and there is no record of how the USDOC and the interested parties reached 
an agreement on those rates, as those proceedings were kept confidentia l.949 India disagrees and 
argues that the settled rates were determined on the basis of lower subsidy amounts received  by 
the companies, and that therefore the  USDOC should have explained wh y it ignored them .950 In its 
comments on the United  States ' responses to the Panel 's questions after the hearing, India has 
drawn our attention to the circumstance that, for example, the amount of CVD agreed for Tata in 
the context of the settlement  agreement  is similar to the amount determined for the same company 
in the 20 08 administrative review (the difference being lower than 0.20%).951  
7.433.   India has not persuasively rebutted the  US arguments. Absent record evidence pointing to 
the contrary, we are not in the position to second -guess the basis used by the interested parties t o 
arrive at a settled rate. Based on the evidence before this Panel, no consideration of the subsidization 
rate, the appropriateness of the duties levied, or the adequacy of the duties to offset the injury 
caused by subsidized imports can be found in the Amended Final Results  by means of which the 
agreed countervailing rates became operative.952 At least, if considerations as to the appropriateness 
of the amount of the duties levied in light of the need to remedy the injury caused by subsidized 
imports were made in that context, there is no evidence before this Panel in that regard . Against 
this background, and absent evidence to the contrary, we fail to see how the USDOC should have 
weighed the appropriateness of newly determined CVD rates against amounts likely agreed upon  
based on a pure negotiation that took place in the context of domestic court proceedings.  
7.434.   India finally maintains that allowing the USDOC to apply a higher rate as compared to the 
level negotiated in the context of domestic court proceedings creates a conflict between domestic 
judicial review under Article  23 of the SCM  Agreeme nt and WTO dispute settlement proceedings 
under Article  30 of the SCM  Agreement .953 Whilst the SCM  Agreement  allows for the activation of 
both domestic and international remedies, India argues that the USDOC 's approach would prevent 
WTO Members from bringing  claims before WTO panels every time interesting parties start domestic 
court proceedings.954 The United  States  denies India 's allegation that the USDOC 's approach creates 
a conflict between Articles  23 and 30 of the SCM  Agreement . The United  States  maintain s that the 
settlements with JSW and Tata were not negated and that the rates applied subsequent to the 
Section  129 Determination had no impact on the settled rates that were already liquidated, meaning 
 
947 Final Determination, (Exhibit IND -60), p.  7. 
948 United  States'  second written submission, para.  260. 
949 United  States'  first written submission, para.  440; second written submission, para.  260. 
950 India's  second written submission, para.  280. 
951 India's  comments on United  States'  response to Panel question No.  72. 
952 JSW Amended final results (2010),  (Exhibit IND -48), pp.  1-2; Tata Amended final results (2011),  
(Exhibi t IND -49), pp.  1-2. 
953 India's  second written submission, para.  279. 
954 India's  second written submission, para.  279. 
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  that the USDOC duly complied with the results of both domestic court proceedings and WTO dispute 
settlement.955 
7.435.   Articles  23 and 30 of the SCM  Agreement  read:  
Article  23 
Judicial Review  
Each Member whose national legislation contains provisions on countervailing duty 
measures shall maintain judicial, arbitral or  administrative tribunals or procedures for 
the purpose, inter alia, of the prompt review of administrative actions relating to final 
determinations and reviews of determinations within the meaning of Article  21. Such 
tribunals or procedures shall be indep endent of the authorities responsible for the 
determination or review in question, and shall provide all interested parties who 
participated in the administrative proceeding and are directly and individually affected 
by the administrative actions with acce ss to review.  
Article  30 
The provisions of Articles  XXII and XXIII of GATT 1994 as elaborated and applied by the 
Dispute Settlement Understanding shall apply to consultations and the settlement of 
disputes under this  Agreement , except as otherwise specific ally provided herein.  
7.436.   At the outset, we note that the two provisions do not explicitly address the specific situation 
of this dispute. We also note that the two provisions do not establish any hierarchy between them, 
and actually make it possible for inter ested parties and WTO Members to activate domestic court 
proceedings and WTO dispute settlement proceedings against the same measures.  
7.437.   We reject India 's argument that the USDOC 's imposition of the higher rates calculated in the 
Section  129 Proceedings, instead of the rates negotiated between the parties, sets up a conflict 
between the domestic judicial review provided for under Article  23 of the SCM  Agreement  and 
WTO dispute settle ment proceedings under Article  30 of the SCM  Agreement . India 's argument is 
that condoning the USDOC 's approach would prevent Members from initiating WTO dispute 
settlement proceedings in parallel with legal actions taken by companies in domestic judicial 
proceedings. First, the newly determined rates do not impact the imports already liquidated based 
on the settled rates. In this regard, we recall again that the United  States  argues that it gave full 
effect to the Amended Final Results  and that entries liq uidated based on the settled rates are not 
affected by the newly determined rates. India does not contest this point, which we consider 
sufficient to safeguard the meaningfulness of domestic court proceedings under Article  23 of the 
SCM Agreement  under the  specific circumstances of this case. Second, we see the merits of the 
United  States ' argument that accepting India 's interpretation would limit the ability of an 
investigating authority to fully implement DSB recommendations if it was required to modify t he 
results of such implementation based on prior rates determined pursuant to negotiated settlements 
in domestic court proceedings. This result is unwarranted and would lead to absurd consequences 
in situations where the newly determined CVDs  pursuant to t he Section  129 redetermination are 
lower than the previously agreed rates in domestic proceedings. We further note that nothing would 
prevent interested parties from challenging the consistency of the duties levied pursuant to the 
Section  129 redeterminati on before domestic courts in the United  States , if they believe that they 
are inconsistent with US law. Therefore, we fail to see how the approach followed by the USDOC in 
the Section  129 proceedings sets up a conflict between Articles  23 and 30 of the SCM  Agreement . 
7.13.3   Conclusion  
7.438.   Based on the foregoing, we find that India has not demonstrated that the USDOC failed to 
impose CVDs  against Tata and JSW in the appropriate amounts. Therefore, we conclude that India 
has not demonstrated that the United  States  acted  inconsistently with Article  19.3 of the 
SCM Agreement . 
 
955 United  States'  second written submission, para.  261. WT/DS436/ RW 
 
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  7.14  India's claims under Articles 10 of the SCM Agreement and VI of the GATT 1994  
7.439.   India also alleges consequential violations of Articles 10 of the SCM Agreement and VI of the 
GATT 1994 based on its subst antive claims under Articles 1.1(a)(1),  2.1(c), 12.1, 12.8,  14(b), 14(d) , 
15.1, 15.2, 15.3, 15.4, 15.5, 19.3, 21.1, and 21.2  of the SCM Agreement .956 
7.440.   Article 10 of the SCM Agreement reads:  
Members shall take all necessary steps to ensure that the imposition of a countervailing 
duty on any product of the territory of any Member imported into the territory of another 
Member is in accordance with the provisions of Article VI of GATT 1994 and the terms 
of this Agreement. Countervailing duties may only be imposed pursuant to 
investigations initiated and conducted in accordance with the provisions of this 
Agreement and the Agreement on Agriculture.957 
7.441.   Article VI of the GATT 1994 reads:  
1. The contracting parties recognize that dumping, by which products of 
one country are introduced into the commerce of another country at less 
than the normal value of the products, is to be condemned if it causes or 
threatens material injury to an established industry in the territory of a 
contracting party or materially ret ards the establishment of a domestic 
industry. For the purposes of this Article, a product is to be considered as 
being introduced into the commerce of an importing country at less than 
its normal value, if the price of the product exported from one countr y to 
another  
(a) is less than the comparable price, in the ordinary course of trade, for 
the like product when destined for consumption in the exporting country, 
or, 
(b) in the absence of such domestic price, is less than either  
(i) the highest comparable price for the like product for export to any third 
country in the ordinary course of trade, or  
(ii) the cost of production of the product in the country of origin plus a 
reasonable addition for selling cost and profit.  
Due allowan ce shall be made in each case for differences in conditions and 
terms of sale, for differences in taxation, and for other differences affecting 
price comparability.*  
2. In order to offset or prevent dumping, a contracting party may levy on 
any dumped produ ct an anti -dumping duty not greater in amount than the 
margin of dumping in respect of such product. For the purposes of this 
Article, the margin of dumping is the price difference determined in 
accordance with the provisions of paragraph 1.*  
3. No counter vailing duty shall be levied on any product of the territory of 
any contracting party imported into the territory of another contracting 
party in excess of an amount equal to the estimated bounty or subsidy 
determined to have been granted, directly or indi rectly, on the 
manufacture, production or export of such product in the country of origin 
or exportation, including any special subsidy to the transportation of a 
particular product. The term "countervailing duty " shall be understood to 
mean a special duty  levied for the purpose of offsetting any bounty or 
 
956 India's first written submission, para. 240; second written submission, para. 281. 
957 Fns omitted.  WT/DS436/ RW 
 
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  subsidy bestowed, directly, or indirectly, upon the manufacture, production 
or export of any merchandise.*  
4. No product of the territory of any contracting party imported into the 
territory of any other contracting party shall be subject to anti -dumping or 
countervailing duty by reason of the exemption of such product from duties 
or taxes borne by the like product when destined for consumption in the 
country of origin or exportation, or by reason of the r efund of such duties 
or taxes.  
5. No product of the territory of any contracting party imported into the 
territory of any other contracting party shall be subject to both anti -
dumping and countervailing duties to compensate for the same situation of 
dumpin g or export subsidization.  
6. (a) No contracting party shall levy any anti -dumping or countervailing 
duty on the importation of any product of the territory of another 
contracting party unless it determines that the effect of the dumping or 
subsidization, as the case may be, is such as to cause or threaten material 
injury to an established domestic industry, or is such as to retard materially 
the establishment of a domestic industry.  
(b) The CONTRACTING PARTIES may waive the requirement of 
subparagraph (a) of this paragraph so as to permit a contracting party to 
levy an anti -dumping or countervailing duty on the importation of any 
product for the purpose of offsetting dumping or subsidization which causes 
or threatens material injury to an industry in the te rritory of another 
contracting party exporting the product concerned to the territory of the 
importing contracting party. The CONTRACTING PARTIES shall waive the 
requirements of subparagraph (a) of this paragraph, so as to permit the 
levying of a counterva iling duty, in cases in which they find that a subsidy 
is causing or threatening material injury to an industry in the territory of 
another contracting party exporting the product concerned to the territory 
of the importing contracting party.*  
(c) In exce ptional circumstances, however, where delay might cause 
damage which would be difficult to repair, a contracting party may levy a 
countervailing duty for the purpose referred to in subparagraph (b) of this 
paragraph without the prior approval of the CONTRA CTING PARTIES; 
Provided that such action shall be reported immediately to the 
CONTRACTING PARTIES and that the countervailing duty shall be 
withdrawn promptly if the CONTRACTING PARTIES disapprove.  
7. A system for the stabilization of the domestic price or  of the return to 
domestic producers of a primary commodity, independently of the 
movements of export prices, which results at times in the sale of the 
commodity for export at a price lower than the comparable price charged 
for the like commodity to buyers  in the domestic market, shall be presumed 
not to result in material injury within the meaning of paragraph 6 if it is 
determined by consultation among the contracting parties substantially 
interested in the commodity concerned that:  
(a) the system has als o resulted in the sale of the commodity for export at 
a price higher than the comparable price charged for the like commodity to 
buyers in the domestic market, and  
(b) the system is so operated, either because of the effective regulation of 
production, or otherwise, as not to stimulate exports unduly or otherwise 
seriously prejudice the interests of other contracting parties.  WT/DS436/ RW 
 
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  7.442.   We recall our finding s above that the United States acted inconsistently with the obligations 
under Articles 2.1(c),  and 15.1-15.5 of  the SCM Agreement. We note that the Appellate Body has 
treated claims under Articles 10 of the SCM Agreement as consequential claims in the sense that, 
when the essential elements of the subsidy within the meaning of Article 1 of the SCM Agreement 
are not  present, or the right to impose a CVD has not been established, the CVDs  imposed are 
inconsistent with Articles 10 of the SCM Agreement.958 We are persuaded by the Appellate Body's 
approach and therefore adopt it as our own. Accordingly, to the extent that we have found the 
USDOC's and USITC's determinations to be inconsistent with Articles 2.1(c),  15.1, and 15.5 of the 
SCM Agreement, and that we have found that the United States has taken no measure to comply 
with the DSB  recommendation in the original disp ute concerning the inconsistency "as such" of  19 
USC § 1677(7)(G)(i)(III) with Articles  15.1-15.5 of the SCM  Agreement,  we also find that the United 
States acted inconsistently with its  obligations under Article 10 of the SCM Agreement.  
7.443.   From the text of Ar ticle 10, it is clear that CVDs  may only be imposed in accordance with 
Article VI of the GATT 1994 and the SCM Agreement.959 As a result, having determined that the 
United States acted inconsistently with Articles 2.1(c) , and 15.1 -15.5 of the SCM Agreement, we 
also find that the United States acted inconsistently with its obligations under Article VI of the 
GATT  1994.  
8  CONCLUSIONS AND RECO MMENDATION  
8.1.  For the reasons set forth in this Report, we conclude as follows:  
a. With respect to India's claims under Article 1 .1(a)(1) of the SCM Agreement, India has not 
demonstrated that the USDOC acted inconsistently with Article 1.1(a)(1).  
b. With respect to India's claims under Article 14(d) of the SCM Agreement:  
i. India has not demonstrated that the USDOC applied an incorrect legal standard, and 
thus acted inconsistently with Article  14(d) as a matter of law, in rejecting the 
domestic pricing information . 
ii. India has not demonstrated that the USDOC acted inconsistentl y with Article  14(d) by 
failing to undertake an objective examination of, and explain sufficiently, the basis for 
rejecting the prices in the association price chart as not representing actual 
transactions.  
iii. India has not demonstrated that the USDOC acted i nconsistently with Article  14(d) on 
the basis  that its treatment of the domestic pricing information was not based on an 
objective examination.  
iv. We exercise judicial economy with regard to India's claim that the USDOC acted 
inconsistently with Article 14(d)  by failing to explain adequately the reasons for 
rejecting the Tata price quote on the basis of disclosing confidential data.  
v. India has not demonstrated that the USDOC acted inconsistently with Article 14(d) by 
failing to make an objective assessment by f ailing to explain why the Tex Report is 
more appropriate than the domestic pricing information. We exercise judicial economy 
over whether India's allegation of error in this rega rd comprised a separate claim.  
vi. India has not demonstrated that the USDOC acted inconsistently with Article  14(d) by 
rejecting the NMDC's  export prices as a benchmarking source.  
c. India's  claim under Article  14(b) of the SCM Agreement is not within the scope of the 
present compliance proce edings under Article  21.5 of the DSU, and in any case, we also 
conclude that India has not demonstrated that the USDOC acted inconsistently with 
 
958 Appellate Body Reports, US – Softwood Lumber IV , para.  143; US – Anti-Dumping and 
Countervailing Duties (China) , para.  358. 
959 Appellate Body Report, Brazil – Desiccated  Coconut , DSR 1997:I, p.  180. WT/DS436/ RW 
 
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  Article  14(b) by failing to make adjustments to its benefit benchmark to accommodate the 
SDF levy as an entry c ost incurred by the loan recipients.   
d. In light of our conclusions in par agraphs 8.1(b) and 8.1(c), we exercise judicial economy 
with regard to India's claims under the chapeau  of Article 14 of the SCM Agreement.  
e. With respect  to India's claims under Article  2.1(c) of the SCM  Agreement:  
i. India has not demonstrated that the USDOC acted inconsistently with Article  2.1(c) in 
its assessment of the "length of time" factor for the NMDC's  sales of high -grade iron 
ore. 
ii. The USDOC acted inconsistently with Article  2.1(c) of the SCM  Agreement by failing to 
provide a reasoned and adequate explanation for its finding that the mining leases for 
iron ore programme was de facto  specific.  
iii. In respect of the "mining leases for coal" programme,  India has not demonstrated that 
the USDOC acted inconsistently with Article  2.1(c) of the SCM  Agreement by failing to 
consider the mandatory factors under that provision.  
iv. In respect of the "mining leases for iron ore" programme, the USDOC acted 
inconsist ently with Article 2.1(c) of the SCM Agreement by failing to take account of 
the length of time during which that programme had been in operation. India has not 
demonstrated that the USDOC acted inconsistently with Article  2.1(c) of the 
SCM Agreement by fa iling to consider the extent of diversification of the Indian 
economy with respect to that programme.  
v. In light of our conclusions in paragraph 8.1(e)(ii) -(iv), we exercise judicial economy 
with regard to India's claim that the USDOC acted inconsistently wi th Articles 1.2 and 
2.4 of the SCM Agreement.  
f. With respect to India's  claim s under Article  12.1 of the SCM Agreement : 
i. In light of our conclusion in par agraph 8.1(b)(iv), w e exercise judicial economy with 
regard to India's claim that the USDOC acted inconsi stently with Article 12.1 regarding 
the Tata price quote.  
ii. India's claim that the USDOC acted inconsistently with Article 12.1 regarding the legal 
implications of the NMDC's  Miniratna status is not within the scope of the present 
compliance proceedings unde r Article  21.5 of the DSU.  
g. With respect to India's claims under Article 12.8 of the SCM Agreement, India has not 
demonstrated that the USDOC acted inconsistently with Article  12.8 by failing to disclose 
the two matters referred to by India.  
h. With respect to  India's claims under  Articles 21.1 and 21.2 of the SCM Agreement:  
i. India's claim under Articles 21.1 and 21.2 concerning the USDOC's  investigation of 
"new subsidies" in the 2004 to 2008 administrative reviews and the inclusion of these 
subsidy programmes i n the Section 129 Determination is not within the scope of the 
present compliance proceedings under Article  21.5 of the DSU .  
ii. India failed to establish that the USDOC investigated "new subsidies" in the 
Section  129 proceedings, and therefore has not demons trated  that the USDOC acted 
inconsistently with Articles 21.1 and 21.2 of the SCM  Agreement.  
i. India's claim that the United States'  failure  to amend 19 USC § 1677(7)(G)(i)(III) is 
inconsistent with the DSB recommendation in this dispute as well as with 
Articles 15.1-15.5 of the SCM Agreement is within the Panel's terms of reference. India 
has demon strated that the United States has taken no measure to  bring 19 USC § 
1677(7)(G)(i)(III)  - which was found to be inconsistent "as such" with Articles  15.1-15.5 WT/DS436/ RW 
 
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  of the SCM  Agreement  in the original dispute - into compliance with the United States' 
obligations under the SCM Agreement . 
j. With respect to India's claims under  Articles 15.1 and 15.2 of the SCM Agreement:  
i. India's claims that, in the Sec tion 129 proceedings, the USITC acted inconsistently 
with Articles 15.1 and 15.2 by using flawed methodology and data and ignoring data 
from the original determination are not within the scope of the present compliance 
proceedings under Article  21.5 of the  DSU.  
ii. India has not demonstrated that the USITC , in its price undercutting analysis,  acted 
inconsistently  with Articles 15.1 and  15.2.  
k. With respect to India's claims under  Articles 15.1 and 15.4 of the SCM Agreement,  India 
has not demonstrated  that the U SITC acted inconsistently with Articles 15.1 and 15.4 by 
failing to examine and evaluate the existence of a link or relationship or explanatory force 
between the subsidized imports and the state of the domestic industry.  
l. With respect to India's claims unde r Articles  15.1 and 15.5 of the SCM Agreement:   
i. India has not made  a prima facie  case that the USITC acted inconsistently with 
Articles  15.1 and 15.5 by failing to demonstrate that the subsidized imports caused 
injury to the domestic industry.  
ii. India has not demonstrated that the USITC, in its non -attribution analysis, acted 
inconsistently with Articles  15.1 and 15.5 by failing to consider the impact of goods 
from Brazil, Japan, and the Russian Federation, and the contraction in demand.  
iii. India's claim that the USITC, in its non -attribution analysis, acted inconsistently with 
Articles 15.1 and 15.5  by failing to examine the causes for the closure of certain plants  
is outside the scope of t hese compliance proceedings.  
iv. India has demonstrated that the USITC acted inconsistently with Articles 15.1 and 15.5 
by failing  to consider the impact of dumped imports from China, Kazakhstan, Romania, 
Chinese Taipei, and Ukraine on the injury suffered by t he domestic industry and to 
separate and distinguish it from the effects of subsidized imports  and of other known 
factors . 
m. With respect to India's claims under Article 19.3 of the SCM Agreement, India has not 
demonstrated that the USDOC acted inconsistentl y with Article 19.3 . 
n. As a consequence of the Panel's findings of inconsistency  with respect to the Section 129  
reinvestigation under Articles 2.1(c) and 15.1 -15.5 of the SCM Agreement, India has 
demonstrated that the United States acted inconsistently with  Articles 10 of the 
SCM Agreement and VI of the GATT 1994.  
8.2.  Under Article 3.8 of the DSU, whe n there is an infringement of the obligations assumed under 
a covered Agreement, the action is considered prima facie  to constitute a case of nullification or 
impai rment. We conclude that, to the extent that the measures at issue are inconsistent with the 
SCM Agreement  and the GATT 1994 , they have nullified or impaired benefits accruing to India under 
these agreement s.  
8.3.  We also conclude that the United States has fai led to implement the recommendations and 
rulings of the DSB to bring 19 USC § 1677(7)(G)(i)(III) into conformity with its obligations under 
the SCM Agreement. To the extent that the United States has failed to comply with the 
recommendations and rulings of  the DSB in the original dispute, those recommendations and rulings 
remain operative.  
8.4.  Pursuant to Article 19.1 of the DSU, we recommend that the United States bring its measures 
into conformity with its obligations under the SCM Agreement and the GATT 1994 . 
__________