WT/DS436/18  
 
5 April  2018 
(18-2079) 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 THE ESTA BLISHMENT OF A PANEL  
The following communication, dated 29 March 2018 , from the delegation of India to the 
Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 21.5 of the DSU.  
 
_______________  
 
My authorities have instructed me to request the establishment of a panel pursuant to 
Article 6 and 21.5 of the Understanding on Rules and Procedures Governing the Settlement of 
Disputes ( "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 respect to the failure of the United States to implement the recommendations 
and rulings of the Dispute Settlement Body ("DSB") in DS436, United States - Countervailing 
Measures on Certain Hot -Rolled Carbon Steel Flat Products From India  ("US – Carbon Steel 
(India) ").  
2. On 19 December 2014, the DSB adopted the recommendations and rulings of the Appellate 
Body1 and the Panel2 in US – Carbon Steel (India) .  The DSB found that the United States imposed 
countervailing duties on Indian expor ts of certain hot -rolled carbon steel flat products 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.  
3. 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, woul d expire on 18 April 2016.  Pursuant thereto, the United States engaged in 
redeterminations under Section 129 of its Uruguay Round Agreements Act, 1994 ( "URAA ").  
4. On 6 May 2016, India and the United States concluded an agreement on the procedures 
under Articles 21 and 22 of the DSU that would apply between them for the purposes of this 
dispute.  
5. India considers that the United States has failed to implement the DSB's recommendations 
and rulings. Therefore, India filed a request for consultations on 5 June 2017. The parties held 
consultations on 13 July 2017 and 4 October 2017 but the consultations failed to resolve India’s 
concerns regarding the United States’ failure to implement the DSB’s recommendations and rulings 
in this dispute.  
7. 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 July 2012), to the extent that the DSB 
made 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, 
                                                
1 WT/DS436/AB/R.  
2 WT/DS436/R and WT/DS436/R/Add.1.  WT/DS436/18  
 
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  as well as any closely connected measures that the United States has issued or adopted in 
connection with the measures mentioned either in Annex 1 or A nnex 2.  
8. India considers that the United States’ failure to amend 19 USC § 1677(7)(G)(iii) is 
inconsistent 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 contin ues to require the United States 
International Trade Commission ( "USITC ") to cumulate the effects of subsidized imports with the 
effects of dumped, non -subsidized imports.  
9. In addition, the measures at issue are inconsistent with the DSB recommendations in this 
dispute and with the following provisions of the SCM Agreement and the General Agreement on 
Tariffs and Trade, 1994 ( "GATT 1994 "): 
i. Article 1.1(a)(1) of the SCM Agreement because the United States erroneously concluded 
that NMDC is a public body;  
ii. 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;  
iii. Article 12.1 of th e 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 India; and (iii) rejected relevant information voluntarily provided by the Government  
of India;  
iv. 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 consideration which form the 
basis for the decision as to whether to apply definitive measure s; 
v. 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;  
vi. The chapeau of Article 14 and Article 14(b) of the SCM Agreement because t he 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 programme;  
vii. 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;  
viii. 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;  
ix. 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 an erroneous causal link analysis;  
x. Article 19.3 of the SCM Agreement because the United States unilaterally terminated 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 
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;  
xi. 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 WT/DS436/18  
 
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  reviews, without examining whether such new subsidy prog rammes had a sufficiently close 
nexus with the subsidies that were the subject of the original investigation;  
xii. Articles 21.1 and 21.2 of the SCM Agreement because the United States has countervailed 
new subsidy programmes titled "Mining rights of Iron Ore " and "Mining of Coal " in Section 
129 proceedings, without examining whether such new subsidy programmes had a 
sufficiently close nexus with the subsidies that were the subject of the original 
investigation;  
xiii. Articles 22.3 and 22.5 of the SCM  Agreement, becau se the United States failed to provide 
in sufficient detail the findings and conclusions reached on all issues of fact and law it 
considered material, 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;  
xiv. Article 10 of the SCM Agreement and Article VI of the GATT 1994 as a consequence of the 
breaches of the SCM Agreement described above.  
10. India considers that the measures at issue cause nullification or impairment of benefits 
accruing to it under those Agreements.  
11. India requests that a panel be established under Article 21.5 of the DSU with the standard 
terms of reference, as set forth in Article 7.1 of the DSU , and asks that this request be placed on 
the agenda of the DSB meeting scheduled for 27 April 2018.  
 
 
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 WT/DS436/18  
 
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  Annex 1  
 
Original Investigation  
 
1. Preliminary Affirmative Countervailing 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.  
 
2. Issues and Decision Memorandum – Final Results of the Countervailing Duty 
Investigations: Certain Hot -Rolled Carbon Steel Flat Products From India , 66 ITADOC 
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, 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, 
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 fr om India , January 8, 2002.  
 
Administrative 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 Ca rbon 
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 I ndia, 71 FR 1512 -01, January 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 Cou ntervailing Duty 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: Ce rtain 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.  
 
15. Injury Determination – Hot Rolled Steel Products from China, India, Indonesia, 
Kazakhstan, Argentina, Romania, South Africa, Taiwan,  Thailand, and Ukraine, 701 -TA-WT/DS436/18  
 
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  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 Pr oducts 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 Administrative  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 IT ADOC 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 31, 2007  
 
20. Prelimina ry 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 Administrative 
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, 2009.  
 
Administrative Review: POR Ja nuary 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 Decision 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/DS436/18  
 
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  Annex 2  
In relation to the proceedings by the United States Department o f 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, 2015.  
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 Carbo n 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 – Countervailing 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 Measures 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 from India (WTO/DS436) dated 
April 14, 201 6. 
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/DS436) 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. Calculati ons 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).  
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 (DS436 -2006).  
12. Calculations for Final Determina tion: 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. 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).  
14. Certain Hot -Rolled Carbon Steel Flat Products from India: Implemen tation of 
Determinations Under Section 129 of the Uruguay Round Agreements Act, 81 FR 27412 
dated May 6, 2016.  WT/DS436/18  
 
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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 Steel 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 December 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)(iii)  
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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