WT/DS436/17  
 
9 June 2017  
(17-3074) Page: 1/7 
  Original: English  
 
 UNITED STATES – COUNTERVAILING MEASU RES ON CERTAIN HOT -ROLLED CARBON 
STEEL FLAT PRODUCTS FROM INDIA  
RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA  
REQUEST FOR CONSULTA TIONS  
The following communication, dated 5 June 2017 , from the delegation of India to the delegation of 
the United States of America  and to the Chairperson of the Dispute Settlement Body, is circulated 
in accordance with Article  21.5 of the DSU.  
 
_______________  
 
My authorities have instructed me to request consultations with the United States of America 
("United States "), under p aragraph 1 of the Agreed Procedures under Articles 21 and 22 of the 
Dispute Settlement Understanding1 reached between the United States and India  read with 
Article  21.5 of the Dispute Settlement Understanding  ("DSU"), with respect to the measures taken 
by the United States to comply with the recommendations of the WTO Dispute Settlement Body 
(DSB) in DS436, United States - Countervailing Measures on Certain Hot-Rolled Carbon Steel Flat 
Products From India  ("US – Carbon S teel (India) ").  
Paragraph 1 of the Agreed Procedures under Articles 21 and 22 of the Dispute Settlement 
Understanding  reached between the United States and India states that, "[s]hould India consider 
that the situation described in Article 21.5 of the DSU  exists, India will request consul tations " with 
the United States2. As set out below , India considers that the measures taken by the United States 
to comply with the recommendations and rulings adopted by the DSB in US – Carbon Steel (India)  
are not consis tent with such adopted recommendations and the covered agreements , and 
therefore , requests that the United States enter into consultations . 
On 19 December 2014, the DSB adopted the  recommendations and rulings of the Appellate Body3 
and the Panel4 in US – Carbon Steel (India) .  The DSB found that the United States imposed 
countervailing duties on Indian exports of certain hot-rolled carbon steel flat p roducts  in a manner 
that breached the obligations of the United States under the Agreement on Subsidies and 
Countervailing Measures ( "SCM Agreement ") and recommended that the United States bring its 
measures into conformity with its obligations under the SCM Agreement . 
On 24 March 2015 , the United States and India informed the DSB that they had agreed that the 
reasonable period of time for the United States to implement the DSB recommendations and 
rulings , would expire on 18 April 2016 .  Pursuant thereto, the United States engaged in 
redeterminations under Section 129 of its Uruguay Round Agreements Act, 1994 ( "URAA"). India  
considers that the United States has failed to implement the DSB 's recommendations and rulings.   
The measures at issue in this request include the measures identified in India's original request for 
establishment of a panel (WT/DS436/3) (13 Ju ly 2012),  to the extent that the DSB made 
                                                
1  Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU).  
2  WT/DS436/16, para. 1 at page 2.  Footnote 1 to this paragraph states: "The Parties agree that under 
Article 21.5 of the DSU, consultations are not oblig atory.”  
3  WT/DS436/AB/R . 
4  WT/DS436/R and WT/DS436/R/Add.1 . WT/DS436/17  
 
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  recommendations and rulings in respect of those measures. Those measures are set forth in 
Annex  1. The measures at issue also include Section 129 determinations as set forth in Annex 2, 
as well as any closely conne cted measures that the United States has issued or adopted in 
connection with the measures mentione d either in Annex 1 or Annex 2.  
India considers that the United States’ failure to amend 19 USC § 1677(7)(G)(iii)  is inconsistent 
with the DSB recommendation s 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 subsidized imports with the effects of  dumped, 
non-subsidized imports . 
In addition, the measures at issue are inconsistent with the DSB recommendations and with the 
following provisions of the SCM Agreement and the General Agreement on Tariffs and Trade, 1994 
("GATT 1994 "): 
1. Article 1.1(a)(1) of the SCM Agre ement  because the United States erroneously concluded 
that NMDC is a public body;  
2. Articles 2.1(c) and 2.4 of the SCM Agreement because the United States erroneously 
concluded that the alleged programmes titled "sale of high grade iron ore by NMDC ", 
"Mining  rights of Iron Ore " and "Mining of Coal " are de facto  specific ;  
3. Article  12.1 of the SCM Agreement because the United States (i) failed to provide a "notice 
of the information which the authorities require "; (ii) failed to seek relevant information 
from I ndia; and (iii) rejected relevant information voluntarily provided by the Government 
of India;  
4. Article 12.8 of the SCM Agreement because the United States failed to inform all interested 
Members and interested parties of the essential facts under considera tion which form the 
basis for the decision as to whether to apply definitive measures;  
5. The chapeau to Article 14 and Article 14(d) of the SCM Agreement because the United 
States erroneously excluded (i) available in -country benchmarks for iron ore; and (ii ) 
NMDC’s export prices, as benchmarks for consideration, when determining benefit 
conferred by the alleged programmes titled "sale of high grade iron ore by NMDC " and 
"Mining rights of Iron Ore ", and did not also adequately explain the rejection of such 
benchmarks;  
6. The chapeau of Article 14 and Article 14(b) of the SCM Agreement because the United 
States continues to impose countervailing duties ( "CVD") based on the SDF programme 
without accounting for the borrower’s cost in obtaining loans under that progr amme;  
7. Articles 15.1 and 15.2 of the SCM Agreement because the United States has not 
considered the existence of a link or relationship or explanatory force between the import 
of the alleged subsidized imports and the price of the domestic like products;  
8. Articles 15.1 and 15.4 of the SCM Agreement because the United States has not examined 
and evaluated the existence of a link or relationship or explanatory force between the 
alleged subsidized imports and the state of the domestic industry;  
9. Articles 15.1 and  15.5 of the SCM Agreement, as well as Article VI of the GATT 1994 
because the United States has engaged in a faulty causal link analysis;  
10. Article 19.3 of the SCM Agreement because the United States unilaterally terminated the 
CVD rate agreed between JSW a nd the USDOC in the Amended Final Results of 
Countervailing Duty Administrative Review Pursuant to Court Decision , 75 FR 80455 dated 
December 22, 2010 and between Tata and the USDOC in the Amended Final Results of 
Countervailing Duty Administrative Review Pursuant to Court Decision , 76 FR 77775  dated 
December 14, 2011  WT/DS436/17  
 
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  11. Articles 21.1 and 21.2 of the SCM Agreement because the United States continues to 
impose CVD based on new subsidy programmes countervailed during administrative 
reviews, without examining whe ther such new subsidy programmes had a sufficiently close 
nexus with the subsidies that were the subject of the original investigation ; 
12. Articles 21.1 and 21.2  of the SCM Agreement because the United States has effectively 
countervailed new alleged programm es titled "Mining rights of Iron Ore " and "Mining of 
Coal"; 
13. Articles 22.3 and 22.5 of the SCM  Agreement, because the United States failed to provide 
in sufficient detail the findings and conclusions reached on all issues of fact and law it 
considered mater ial, all relevant information on matters of fact and law and the reasons 
which led to the imposition of final measures, and the reasons for the acceptance or 
rejection of relevant arguments or claims;  
14. Article 10 of the SCM Agreement and Article VI of the G ATT 1994 as a consequence of the 
breaches of th e SCM Agreement described above.  
India considers that the measures at issue cause nullification or impairment of benefits accruing to 
it under those Agreements . 
 
We look forward to receiving your reply to thi s request and to fixing a mutually convenient date 
and venue for consultations, which, consistent with paragraph 1 of the Agreed Procedures under 
Articles 21 and 22 of the Dispute Settlement Understanding , shall not be beyond fourteen ( 14) 
days from the da te of circulation of this request.  
 
India reserves its rights in respect of all other aspects of the United States' purported compliance 
with the recommendations and rulings of the DSB in this matter, and reserves it s rights to raise 
further factual and le gal issues during the course of consultations . 
 
_______________  
 
 
 
 
 WT/DS436/17  
 
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  Annex 1  
 
Original Investigation  
 
 1. Preliminary Affirmative Countervailing Duty Determination and Alignment of Final 
Countervailing Determination With Final Antidumping Duty Determinati ons: Certain 
Hot-Rolled Carbon Steel Flat Products From India : 66 FR 20240 -01, April  20, 2001.  
 
 2. Issues and Decision Memorandum – Final Results of the Countervailing Duty 
Investigations: Certain Hot -Rolled Carbon Steel Flat Products From India , 
66 ITADO C 49635, September 21, 2001.  
 
 3. Final Affirmative Countervailing Duty Determination: Certain Hot -Rolled Carbon 
Steel Flat Products From India , 66 FR 49635 -01, September 28, 2001.  
 
 4. Injury Determination : Hot Rolled Steel Products from China, India, Ind onesia, 
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, November 2001.  
 
 5. Amended Final Results of Countervailing Duty Orders : Certain Hot -Rolled Carbon 
Steel Flat Products From India and Indonesia , 66 FR 60198 -01, December 3, 2001.  
 
 6. Countervailing Duty Order in the Investigation: Certain  Hot Rolled Carbon Steel 
Flat Products from India , January 8, 2002.  
 
Administrativ e Review: POR April 20, 2001 through December 31, 2002  
 
 7. Preliminary Results of Countervailing Duty Administrative Review: Certain 
Hot-Rolled Carbon Steel Flat Products from India, 69 FR 907 -01, January 7, 2004.  
 
 8. Issues and Decision Memorandum – Final Results of the Countervailing Duty 
Investigation: Certain Hot -Rolled Carbon Steel Flat Products From India, 
69 ITADOC 26549, May 6, 2004.  
 
9. Final Results of Countervailing Duty Administrative Review: Certain Hot -Rolled 
Carbon Steel Flat Products from India, 69 FR 26549 -01, May 13, 2004.  
 
Administrative Review: POR January 1, 2004 through December 31, 2004  
 
 10. Preliminary Results of Countervailing Duty Administrative Review: Certain 
Hot-Rolled Carbon Steel Flat Products from India, 71 FR 1512 -01, Janu ary 10, 
2006.  
 
 11. 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.  
 
 12. Final Results of Countervailing Dut y Administrative Review: Certain Hot -rolled 
Carbon Steel Flat Products from India, 71 FR 28665 -01, May 17, 2006.  
 
Sunset Review  
 
 13. 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 ITADOC 70960, 
December 7, 2006.  
 
 14. 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.  
 WT/DS436/17  
 
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   15. Injury Determination – Hot Rolled Steel Products from China, India, Indonesia, 
Kazakhstan, Argentina, Romania, South Africa, Taiwan, T hailand, and Ukraine, 
701-TA-404-408 and 731 -TA-898-902 and 904 -908(Review), Pub. 3956, 
United  States International Trade Commission, October 2007.  
 
 16. 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.  
 
Administrative Review: POR January 1, 2006 through December 31, 2006  
 
 17. Preliminary Results of Countervailing Duty Admini strative Review: Certain 
Hot-Rolled Carbon Steel Flat Products from India, 73 FR 1578 -02, January 9, 2008.  
 
 18. 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.  
 
 19. Final Results of Countervailing Duty Administrative Review: Certain Hot -Rolled 
Carbon Steel Flat Products From India, 73 FR 40295 -02, July 14, 2008.  
 
Administrative Review: POR January 1, 2007 through December 3 1, 2007  
 
 20. Preliminary Results of Countervailing Duty Administrative Review: Certain 
Hot-Rolled Carbon Steel Flat Products from India, 73 FR 79791 -01, 
December  30, 2008.  
 
 21. Issues and Decision Memorandum – Final Results of Countervailing Duty 
Adminis trative Review: Certain Hot -Rolled Carbon Steel Flat Products from India, 
74 ITADOC 20923, April 29, 2009.  
 
 22. Final Results of Countervailing Duty Administrative Review: Certain Hot -Rolled 
Carbon Steel Flat Products from India, 74 FR 20923 -01 May 6, 200 9. 
 
Administrative Review: POR January 1, 2008 through December 31, 2008  
 
 23. Preliminary Results of Countervailing Duty Administrative Review: Certain 
Hot-Rolled Carbon Steel Flat Products from India, 75 FR 1496 -01, January 11, 
2010.  
 
 24. Issues and Dec ision Memorandum – Final Results of Countervailing Duty 
Administrative Review: Certain Hot Rolled Carbon Steel Flat Products from India, 
75 ITADOC 43488, July 19, 2010.  
 
 25. Final Results of Countervailing Duty Administrative Review – Certain Hot Rolled 
Carbon Steel Flat Products from India, 75 FR 43488 -01, July 26, 2010.  
 
The request also covers all the amendments, replacements, implementing acts or any other 
related measure in connection with the measures referred above.  WT/DS436/17  
 
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  Annex 2 
In relation to the proc eedings by the  United States Department of Commerce:  
1. Certain Hot -Rolled Carbon Steel Flat Products from India: Notice of Commencement of 
Compliance Proceedings Pursuant to Section 129 of the Uruguay Round Agreements Act, 
80 FR 57336 dated September 23, 201 5. 
2. 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.  
3. 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.  
4. 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). 
5. Calculations  for Preliminary Determination:  JSW Steel Limited (JSW)  - Section 129 
Proceeding: United States – Countervai ling Duty Measures on Certain Hot -Rolled Carbon 
Steel Flat Products from India (WTO/DS436)  dated April 21, 2016 ( DS436 -2006).  
6. Calculations  for Preliminary Determination:  Tata Steel Ltd. (Tata) - Section 129 
Proceeding: United States – Countervailing Duty M easures on Certain Hot -Rolled Carbon 
Steel Flat Products from India (WTO/DS436)  dated April 21, 2016 ( DS436 -2008).  
7. Final Determination  - Section 129 Proceeding: United States - Countervailing Duty 
Measures on Certain Hot -Rolled Carbon Steel Flat Products f rom India (WTO/DS436) dated 
April 14, 2016.  
8. 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/DS43 6) dated April 21, 2016 ( DS436 -2006) . 
9. 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).  
10. 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 Apri l 21, 2016 ( DS436 -2006).  
11. Calculations  for Final 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 ( DS43 6-2006).  
12. 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 -2006).  
13. Calculat ions 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).  
14. Certain Hot -Rolled Carbon  Steel Flat Products from India: Implementation of 
Determinations Under Section 129 of the Uruguay Round Agreements Act, 81 FR 27412 
dated May 6, 2016.  WT/DS436/17  
 
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  15. Amended cash 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.  
In relation to the proceedings by  the United States International Trade Commission  
16. Letter from the Chairman of the USITC to USTR Ambassador dated October 23, 2015.  
17. Hot-Rolled Stee l Products from India; Scheduling of a Countervailing Duty Proceeding 
Under the Uruguay Round Agreements Act (URAA), Investigation No. 701 –TA–405 (Section 
129 Consistency Determination), United States International Trade Commission, 80 FR 
75132, dated Dece mber 1, 2015.  
18. Hot-rolled Steel products from India, Investigation No. 701 -TA-405 (Section 129 
Consistency Determination), United States International Trade Commission, Publication 
4599 dated March 7, 2016.  
Others  
19. Section 19 United States Code 1677 (7)(G)(i ii) 
20. Dispute Settlement Body, Minutes of the Meeting dated 21 July 2016, WT/DSB/M/383, 
dated October 11, 2016.  
The list also covers all the amendments, replacements, implementing acts or any other related 
measure in connection with the measures referred above. 
 
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