WT/DS436/RW/Add.1  
 
15 November 2019  
(19-7718) Page: 1/74 
    
 
  
UNITED STATES – COUN TERVAILING MEASURES ON CERTAIN 
HOT-ROLLED CARBON ST EEL FLAT PRODUCTS FR OM INDIA  
RECOURSE TO ARTICLE  21.5 OF THE DSU BY I NDIA 
REPORT OF THE PANEL  
Addendum  
This addendum  contains Annexes A to C to the Report of the Panel to be found in document  
WT/DS436/R W. 
 
 
_______________  
 
 WT/DS436/RW/Add.1  
 
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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 o f the Panel concerning B usiness 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 China1 59 
Annex  C-3 Integrated executive summary of the arguments of Egypt2 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 
 
 
 
1 China's oral statement comprises its integrated executive summary.  
2 Egypt's written submission comprises its integrated executive summary.  WT/DS436/RW/Add.1  
 
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  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 o f the Panel concerning Business Confidential 
Information  11 
Annex A -3 Interim Review  13 
Annex A -4 Timetable for the Panel proceedings  25 
 
 WT/DS436/RW/Add.1  
 
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  ANNEX  A-1 
WORKING PROCEDURES O F THE PANEL  
 
Adopted on 27 June 2018  
 
General  
 
1. (1) In this proceeding, the Panel shall follow the relevant provisions of the Understanding 
on Rules and Procedures Governing the Settlement of Disputes ("DSU"). In addition, the 
following Working Procedures apply.  
(2) The Panel reserves the right to modify t hese procedures as necessary, after consultation 
with the parties.  
Confidentiality  
2. (1) The deliberations of the Panel and the documents submitted to it shall be kept 
confidential. Members shall treat as confidential information that is submitted to the Panel 
which the submitting Member has designated as confidential.  
(2) Nothing in the DSU or in these Working Procedures shall preclude a party or third party 
from disclosing statements of its own positions to the public.  
(3) If a party submits a confiden tial version of its written submissions to the Panel, it shall 
also, upon request of a Member, provide a non -confidential summary of the information 
contained in its submissions that could be disclosed to the public.  
(4) Parties and third parties shall tr eat business confidential information in accordance with 
the procedures set forth in the Additional Working Procedures of the Panel Concerning 
Business Confidential Information.  
Submissions  
 
3. (1) Before the substantive meeting of the Panel with the parties, each party shall transmit 
to the Panel, in accordance with the timetable adopted by the Panel:  
a. a first written submission, in which it presents the facts of the case and its arguments; 
and 
b. a written rebuttal.  
(2) Each third party that chooses to m ake a written submission prior to the substantive 
meeting of the Panel with the parties shall do so in accordance with the timetable adopted by 
the Panel.  
(3) The Panel may invite the parties or third parties to make  additional submissions in the 
course o f the proceeding, including with respect to requests for preliminary rulings in 
accordance with paragraph 4 below.  
Preliminary rulings  
4. (1) The following procedures shall apply if the responding party considers that the Panel 
should make a ruling prior to the issuance of the Report that certain measures or claims in 
the panel request or the complaining party's  first written submission are not properly before 
the Panel. Exceptions to this procedure shall be granted upon a showing of good cause.  WT/DS436/RW/Add.1  
 
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  a. The Unite d States shall submit any such request for a preliminary ruling at the earliest 
possible opportunity and in any event no later than in its first written submission to the 
Panel. India shall submit its response to the request prior to the substantive meetin g of 
the Panel, at a time to be determined by the Panel in light of the request.  
b. The Panel may issue a preliminary ruling on the issues raised in such a preliminary ruling 
request before, during or after the substantive meeting, or the Panel may defer a ru ling 
on the issues raised by a preliminary ruling request until it issues its Report to the parties.  
c. In the event that the Panel finds it appropriate to issue a preliminary ruling prior to the 
issuance of its Report, the Panel may provide reasons for the ruling at the time that the 
ruling is made, or subsequently in its Report.   
d. Any request for such a preliminary ruling by the United States prior to the meeting, and 
any subsequent submissions of the parties in relation thereto prior to the meeting, shall 
be served on all third parties. The Panel may provide all third parties with an opportunity 
to provide comments on any such request, either in their submissions as provided for in 
the timetable or separately. Any preliminary ruling issued by the Panel prio r to the 
substantive meeting on whether certain measures or claims are properly before the Panel 
shall be communicated to all third parties.  
(2) The procedure set out in paragraph (1) is without prejudice to the parties' right to 
request other types of pr eliminary or procedural rulings in the course of the proceeding, and 
to the procedures that the Panel may follow with respect to such requests.  
Evidence  
5. (1) Each party shall submit all evidence to the Panel with its first written submission, except 
evidence necessary for purposes of rebuttal, or evidence necessary for answers to questions 
or comments on answers provided by the other party. Additional exceptions may be granted 
upon a showing of good cause.  
(2) If any new evidence has been admitted upon a  showing of good cause, the Panel shall 
accord the other party an appropriate period of time to comment on the new evidence 
submitted.  
6. (1) Where the original language of an exhibit or portion thereof is not a WTO working 
language, the submitting party o r third party shall simultaneously submit a translation of the 
exhibit or relevant portion into the WTO working language of the submission. The Panel may 
grant reasonable extensions of time for the translation of exhibits upon a showing of good 
cause.  
(2) Any objection as to the accuracy of a translation should be raised promptly in writing, 
preferably no later than the next submission or meeting (whichever occurs earlier) following 
the submission which contains the translation in question. Any objection s hall be accompanied 
by a detailed explanation of the grounds for the objection and an alternative translation.  
7. (1) To facilitate the maintenance of the record of the dispute and maximize the clarity of 
submissions, each party and third party shall sequentially number its exhibits throughout the 
course of the dispute, indicating the submitting Member and the number of each exhibit on its 
cover page. Exhibits submitted by India should be numbered IND -1, IND -2, etc. Exhibits 
submitted by the United Sta tes should be numbered USA -1, USA -2, etc. If the last exhibit in 
connection with the first submission was numbered USA -5, the first exhibit in connection with 
the next submission thus would be numbered USA -6.  
 
(2) Each party shall provide an updated list of exhibits (in Word or Excel format) together 
with each of its submissions, oral statements, and responses to questions.  
(3) If a party submits a document that has already been submitted as an exhibit by the 
other party, it should explain why it is submit ting that document again.  WT/DS436/RW/Add.1  
 
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  (4) Insofar as a party considers that the compliance panel should take into account a 
document already submitted as an exhibit in the original panel proceeding, it should resubmit 
that document as an exhibit for the purpose of thi s proceeding. In its list of exhibits, it should 
refer to the number of the original exhibit in the original panel proceedings (OP) (example: 
IND-1 (IND -21-OP)).  
Editorial Guide  
8. In order to facilitate the work of the Panel, each party and third party sh ould consider making 
its submissions in accordance with the WTO Editorial Guide for Panel Submissions (electronic copy 
provided).  
Questions  
 
9. The Panel may pose questions to the parties and third parties at any time, including:  
a. Prior to the meeting, t he Panel may send written questions, or a list of topics it intends 
to pursue in questioning orally in the course of the meeting. The Panel may ask different or 
additional questions at the meeting.   
b. The Panel may put questions to the parties and third parties orally in the course of the 
meeting, and in writing following the meeting, as provided for in paragraphs 16 and 21 below.  
Substantive meeting  
 
10. The Panel shall meet in closed session.  
11. The parties shall be present at the meetings only when  invited by the Panel to appear before 
it.  
12. (1) Each party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
(2) Each party shall have the responsibility for all members of its delegation and shall 
ensure th at each member of its delegation acts in accordance with the DSU and these Working 
Procedures, particularly with regard to the confidentiality of the proceeding and the 
submissions of the parties and third parties.  
13. Each party shall provide to the Pane l the list of members of its delegation no later than 
5.00 p.m. (Geneva time) three working days preceding the first day of each meeting with the Panel.  
14. A request for interpretation by any party should be made to the Panel as early as possible, 
prefer ably at the organizational stage, to allow sufficient time to ensure availability of interpreters.  
15. There shall be one substantive meeting with the parties.  
16. The substantive meeting of the Panel with the parties shall be conducted as follows:  
a. The Panel shall invite India to make an opening statement to present its case first. 
Subsequently, the Panel shall invite the United States to present its point of view. Before each 
party takes the floor, it shall provide the Panel and other pa rticipants at the meeting with a 
provisional written version of its statement. In the event that interpretation is needed, each 
party shall provide additional copies for the interpreters.  
b. Each party should avoid lengthy repetition of the arguments in i ts submissions. Each 
party is invited to limit the length of its opening statement to 75 minutes. If either party 
considers that it requires more time for its opening statement, it should inform the Panel and 
the other party at least 5 days prior to the me eting, and it should also provide, at the same 
time, an estimate of the length of its statement. The Panel will accord equal time to both 
parties for their statements.   WT/DS436/RW/Add.1  
 
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  c. After the conclusion of the opening statements, the Panel shall give each party the  
opportunity to make comments or ask the other party questions.  
d. The Panel may subsequently pose questions to the parties.  
e. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief closing statement, with  India presenting its statement first. Before each party 
takes the floor, it shall provide the Panel and other participants at the meeting with a 
provisional written version of its closing statement, if available.  
f. Following the meeting:  
i. Each party shall  submit a final written version of its opening statement no later than 
5.00 p.m. (Geneva time) on the first working day following the meeting. At the same 
time, each party should also submit a final written version of any prepared closing 
statement that it  delivered at the meeting.  
ii. Each party shall send in writing, within the timeframe established by the Panel prior 
to the end of the meeting, any questions to the other party to which it wishes to receive 
a response in writing.  
iii. The Panel shall send in writ ing, within the timeframe established by the Panel prior to 
the end of the meeting, any questions to the parties to which it wishes to receive a 
response in writing.  
iv. Each party shall respond in writing to the questions from the Panel, and to any 
questions  posed by the other party, within the time -frame established by the Panel 
prior to the end of the meeting.  
Third party session  
 
17. The third parties shall be present at the meetings only when invited by the Panel to appear 
before it.  
18. (1) Each third party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
(2) Each third party shall have the responsibility for all members of its delegation and shall 
ensure that each member of its delegation acts in accordance  with the DSU and these Working 
Procedures, particularly with regard to the confidentiality of the proceeding and the 
submissions of the parties and third parties.  
19. A request for interpretation by any third party should be made to the Panel as early as  
possible, preferably upon receiving the working procedures and timetable for the proceeding, to 
allow sufficient time to ensure availability of interpreters.  
20. (1) Each third party may present its views orally during a session of the substantive meeting  
with the parties set aside for that purpose.  
(2) Each third party shall indicate to the Panel whether it intends to make an oral statement 
during the third party session, along with the list of members of its delegation, in advance of 
this session and no  later than 5.00  p.m. (Geneva time) three working days preceding the first 
day of the third party session of the meeting with the Panel.  
21. The third -party session shall be conducted as follows:  
a. All parties and third parties may be present during the entirety of this session.  
b. The Panel shall first hear the oral statements of the third parties, who shall speak in 
alphabetical order. Each third party making an oral statement at the third -party s ession 
shall provide the Panel and other participants with a provisional written version of its WT/DS436/RW/Add.1  
 
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  statement before it takes the floor. In the event that interpretation of a third party's oral 
statement is needed, that third party shall provide additional cop ies for the interpreters.  
c. Each third party should limit the length of its statement to 15 minutes, and avoid repetition 
of the arguments already in its submission.  
d. After the third parties have made their statements, the parties shall be given the 
opportunity to pose questions to any third party for clarification on any matter raised in 
that third party's submission or statement.  
e. The Panel may subsequently pose questions to any third party.  
f. Following the third -party session:  
i. Each third par ty shall submit the final written version of its oral statement, no later 
than 5.00  p.m. (Geneva time) on the first working day following the meeting.  
ii. Each party may send in writing, within the timeframe to be established by the Panel 
prior to the end  of the meeting, any questions to a third party or parties to which it 
wishes to receive a response in writing.  
iii. The Panel may send in writing, within the timeframe to be established by the Panel 
prior to the end of the meeting, any questions to a thi rd party or parties to which it 
wishes to receive a response in writing.  
iv. Each third party choosing to do so shall respond in writing to written questions from 
the Panel or a party, within a timeframe established by the Panel prior to the end of 
the me eting.  
Descriptive part and executive summaries  
 
22. The description of the arguments of the parties and third parties in the descriptive part of the 
Panel report shall consist of executive summaries provided by the parties and third parties, which 
shall b e annexed as addenda to the report. These executive summaries shall not in any way serve 
as a substitute for the submissions of the parties and third parties in the Panel's examination of the 
case.  
23. Each party shall submit one integrated executive summ ary, which shall summarize the facts 
and arguments as presented to the Panel during the proceedings.  
24. Each integrated executive summary shall be limited to no more than 15 pages.  
25. The Panel may request the parties and third parties to provide execu tive summaries of facts 
and arguments presented in any other submissions to the Panel for which a deadline may not be 
specified in the timetable.  
26. Each third party shall submit an integrated executive summary of its arguments as presented 
in its written  submission and statement in accordance with the timetable adopted by the Panel. This 
integrated executive summary may also include a summary of responses to questions, if relevant. 
The executive summary to be provided by each third party shall not exceed six pages. If the 
documents comprising a third -party's submission, oral statement and/or responses to questions do 
not exceed six pages in total, these may serve as the executive summary of that third party's 
arguments.  
Interim review  
 
27. Following issuan ce of the interim report, each party may submit a written request to review 
precise aspects of the interim report and request a further meeting with the Panel, in accordance 
with the timetable adopted by the Panel. The right to request such a meeting shall  be exercised no 
later than at the time the written request for review is submitted.  WT/DS436/RW/Add.1  
 
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  28. In the event that no further meeting with the Panel is requested, each party may submit 
written comments on the other party's written request for review, in accordanc e with the timetable 
adopted by the Panel. Such comments shall be limited to commenting on the other party's written 
request for review.  
Interim and Final Report  
29. The interim report, as well as the final report prior to its official circulation, shall be kept 
strictly confidential and shall not be disclosed.  
Service of documents  
 
30. The following procedures regarding service of documents apply to all documents submitted by 
parties and third parties in the course of the proceeding:  
a. Each party and third party shall submit all documents to the Panel by submitting them 
with the DS  Registry (office No. 2047).  
b. Each party and third party shall submit one paper copy of its submissions and one paper 
copy of its Exhibits to the Panel by 5 .00 p.m. (Geneva time) on the due dates established 
by the Panel. The DS  Registrar shall stamp the documents with the date and time of 
submission. The paper version submitted to the DS Registry shall constitute the official 
version for the purposes of subm ission deadlines and the record of the dispute.  
c. Each party and third party shall also send an e -mail to the DS Registry, at the same time 
that it submits the paper versions, attaching an electronic copy of all documents that it 
submits to the Panel, pre ferably in both Microsoft Word and PDF format. All such e -mails 
to the Panel shall be addressed to DSRegistry@wto.org , and copied to other WTO 
Secretariat staff whose e -mail addresses have been provided to the parties in the course 
of the proceeding. Where it is not possible to attach all the Exhibits to one email, the 
submitting par ty or third party shall provide the DS Registry with one copy of the Exhibits 
on USB keys, CD -ROMs or DVDs.  
d. In addition, each party and third party is invited to submit all documents through the 
Digital Dispute Settlement Registry (DDSR) within 24 hours  following the deadline for the 
submission of the paper versions. If the parties or third parties have any questions or 
technical difficulties relating to the DDSR, they are invited to consult the DDSR User Guide 
(electronic copy provided) or contact the D S Registry at DSRegistry@wto.org . 
e. Each party shall serve any document submitted to the Panel directly on the other party. 
Each party shall, in addition, serve any submissions in advance of the first substantive 
meeting with the Pan el directly on the third parties. Each third party shall serve any 
document submitted to the Panel directly on the parties and on all other third parties. A 
party or third party may serve its documents on another party or third party by e -mail or 
on a CD -ROM, DVD or USB key only, unless the recipient party or third party has previously 
requested a paper copy. Each party and third party shall confirm, in writing, that copies 
have been served on the parties and third parties, as appropriate, at the time it pr ovides 
each document to the Panel.  
f. Each party and third party shall submit its documents with the DS Registry and serve 
copies on the other party (and third parties where appropriate) by 5.00  p.m. (Geneva 
time) on the due dates established by the Panel.   
g. As a general rule, all communications from the Panel to the parties and third parties will 
be via email. In addition to transmitting them to the parties by email, the Panel shall 
provide the parties with a paper copy of the Interim Report and the Fina l Report.  
Correction of clerical errors in submissions  
31. The Panel may grant leave to a party or third party to correct clerical errors in any of its 
submissions (including paragraph numbering and typographical mistakes). Any such request should WT/DS436/RW/Add.1  
 
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  identif y the nature of the errors to be corrected, and should be made promptly following the filing 
of the submission in question.  
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  ANNEX A -2 
ADDITIONAL WORKING P ROCEDURES OF THE PAN EL CONCERNING  
BUSINESS CONFIDENTIA L INFORMATION  
Adopted on 27 June 2018  
 
 
1. The following procedures apply to business confidential information (BCI) submitted in the 
course of the Panel proceedings. These procedures do not apply to information that is available in 
the public domain. In addition, these procedures do not apply to any such BCI if the entity who 
provided the information in the course of the investigations at issue agrees in writing to make the 
information publicly available.  
2. For the purposes of these proceedings, business confidential in formation (BCI) means 
information previously submitted to the U.S. Department of Commerce as confidential information 
protected by Administrative Protective Order ("APO") in the course of the countervailing duty 
investigation and administrative reviews (In vestigation No.C -533-821) that is submitted to the Panel 
by the United States or by India.  
3. The first time that a party submits to the Panel BCI as defined above from an entity that 
submitted that information in one of the proceedings at issue, the party  shall also provide, with a 
copy to the other party, an authorizing letter from the entity. That letter shall authorize both the 
United States and India to submit in this dispute, in accordance with these procedures, any 
confidential information submitted by that entity in the course of those proceedings.  
4. Each party shall, at the request of the other party, facilitate the communication to an entity 
in its territory of any request to provide an authorization letter referred to in paragraph 3. Each party 
shall encourage any entity in its territory that is requested to grant the authorization referred to in 
paragraph  3 to grant such authorization. If an entity refuses to grant the authorization referred to 
in paragraph 3, a party may bring the situation to the attention of the Panel.  
5. No person shall have access to BCI except a member of the WTO Secretariat or the Panel, an 
employee of a party or third party, and an outside advisor for the purposes of this dispute to a party 
or third party. However, an out side advisor is not permitted access to BCI if that advisor is an officer 
or employee of an enterprise engaged in the production, export, or import of the products that were 
the subject of the proceedings cited in paragraph 2. Where an outside advisor has received BCI 
under the relevant APO, nothing in these procedures alters that outside advisor's obligations under 
the APO.  
6. A party or third party having access to BCI submitted in these Panel proceedings shall treat it 
as confidential and shall not discl ose that information other than to those persons authorized to 
receive it pursuant to these procedures. Any information submitted as BCI under these procedures 
shall only be used for the purposes of this dispute and for no other purpose. Each party and thi rd 
party is responsible for ensuring that its employees and/or outside advisors comply with these 
procedures to protect BCI.  
7. A party or third party submitting or referring to BCI in any written submission (including in 
any exhibits) shall mark the cover  and the first page of the document containing any such 
information with the words "Contains Business Confidential Information". The specific information in 
question shall be enclosed in double brackets, as follows: [[xx.xxx.xx]] and the notation "Contains  
Business Confidential Information" shall be marked at the top of each page containing the BCI. A 
non-confidential version, clearly marked as such, of any written submission (including any exhibits) 
containing BCI shall be submitted pursuant to paragraph  2(3) of the Working Procedures within ten 
days after the submission of the confidential version containing the BCI.  
8. In the case of an oral statement containing BCI, the party or third party making such a 
statement shall inform the Panel before making it  that the statement will contain BCI, and the Panel WT/DS436/RW/Add.1  
 
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  will ensure that only persons authorized to have access to BCI pursuant to these procedures are in 
the room to hear that statement. A written non -confidential version of an oral statement containing 
BCI s hall be submitted no later than the working day following the meeting where the statement 
was made. Non -confidential versions of both oral and written statements shall be redacted in such 
a manner as to convey a reasonable understanding of the substance of  the BCI deleted therefrom.  
9. Any BCI information that is submitted in electronic form shall be clearly marked with the 
statement "Business Confidential Information" on a label on the storage medium, and clearly marked 
with the statement "Business Confide ntial Information" in the files.  
10. If a party considers that information submitted by the other party or a third party contains 
information which should have been designated as BCI and objects to such submission without BCI 
designation, it shall bring this objection to the attention of the Panel, the other party, and, where 
relevant, the third parties. The Panel shall deal with the objection as appropriate. Similarly, if a party 
considers that the other party or a third party submitted information  designated as BCI which should 
not be so designated, it shall bring this objection to the attention of the Panel, the other party, and, 
where relevant, the third parties, and the Panel shall deal with the objection as appropriate. A party 
shall make any o bjection referred to in this paragraph within 20 days of the submission of the 
relevant information to the Panel. Exceptions to this time -frame may be granted upon a showing of 
good cause.  
11. The Panel shall not disclose in its report or in any other way,  any information designated as 
BCI under these procedures. The Panel may, however, make statements of conclusion based on 
such information. Before the Panel circulates its final report to the Members, the Panel will give each 
party an opportunity to review  the report to ensure that it does not contain any information that the 
party has designated as BCI.  
12. Submissions containing information designated as BCI under these procedures will be included 
in the record forwarded to the Appellate Body in the event  of any appeal of the Panel's report.  
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  ANNEX A -3 
INTERIM REVIEW  
1  INTRODUCTION  
1.1.  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 requests for review. I n 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 United  States su bmitted 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. On the same day, India req uested 
the opportunity to provide written comments in response to the United  States' opening statement.1 
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 c omment on India's comments.2 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 . 
1.2.  In accordance with Article 15.3 of the DSU, this Annex sets out our discussion of the arguments 
made at the interim review stage. We have revised certain aspects of the Interim Report in the light 
of the parties' comments. In addition, we have made certa in changes to improve the clarity and 
accuracy of the Final Report, or to correct typographical and non -substantive errors, including those 
suggested by the parties. We are grateful for the parties' assistance in this regard. The paragraph 
and footnote num bers in the Final Report have changed due to these revisions. The paragraph and 
footnote numbers indicated in this Annex pertain to those in the Final Report, unless otherwise 
specified.  
2  SPECIFIC REQUESTS FO R REVIEW SUBMITTED B Y THE PARTIES  
2.1  Paragraph 7.16  
2.1.  The United  States makes a request, which corresponds to India's request regarding 
paragraph  7.28, in order to better reflect its argument in relation to the public body determination 
that "India has not established that the conclusions reached by the USDO C were such that an 
unbiased and objective investigating authority could not have reached".3 In light of the 
corresponding modification in respect of India's request regarding paragraph 7.28, we have made 
the change requested.  
2.2  Paragraph 7.19  
2.2.  The United  States requests the inclusion of a discussion of a separate opinion regarding the 
interpretation of "public body" in a recent Appellate Body Report.4 India opposes this request.5 
2.3.  We decline to include the discussion requested. As a compliance panel,  we are bound by the 
findings adopted by the DSB  in the original proceedings, including the findings regarding the 
interpretation of "public body" in the original proceedings. We therefore see no reason to include a 
discussion of a separate opinion in diff erent proceedings that advocates a different interpretation of 
"public body" as compared to the interpretation reflected in the original findings adopted by the 
DSB in the present proceedings.  
 
1 India's letter to the Panel of 19 August 2019.  
2 United  States' letter to the Panel of 20 August 2019.  
3 United  States' comments on India's request for interim review, para. 5.  
4 United States' request for interim review, paras. 4 -6 (referring to Appellate Body Report, US – 
Countervailing Measures (Article 21.5 – China) ). 
5 India's comments on the United  States' request for interim review, paras. 1 -4. WT/DS436/RW/Add.1  
 
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  2.3  Paragraph 7.22 and footnote 61  
2.4.  The United  States requests the removal of the language that the USDOC accepted that "an 
evidentiary finding of 'meaningful control' must be paired  with an evidentiary finding of the 
performance of a 'governmental function' in order to discharge the standard for demonstrating a 
'public b ody'".6 The United  States disagrees that the USDOC did indeed accept such a pairing. India 
does not comment on this request.7 
2.5.  We have adjusted the language of footnote 61 to reflect the formulation in paragraph 7.33, to 
which the United  States did not obje ct, and which states that the "USDOC was guided  in [its public 
body determination] by whether the NMDC performed a governmental function and whether the GOI 
exercised of meaningful control over the NMDC".8 
2.4  Paragraph 7.25  
2.6.  India requests us to specify precis ely where in the Report we apply the statement that "[a]  legal 
interpretation that imposes an evidentiary burden on an investigating authority that is impossible to 
satisfy in practice would not be consonant with the text and structure of the SCM  Agreement ".9 India 
suggests that paragraph 7.56 is the instance in which this statement is applied. The United  States 
does not comment on this request.  
2.7.  We reject India's request. This statement appears in the section that sets out our interpretation 
of "public body ". This interpretation imbues our subsequent analysis of India's claims and the 
United  States' rebuttals concerning the "public body" determination at issue, and is not limited to 
any particular aspect of that analysis. While India correctly identifies par agraph 7.56 as one aspect 
for which this statement had relevance, its significance was not limited to that paragraph.  
2.5  Paragraph 7.26  
2.8.  India requests replacing "may" with "shall" in the following sentence: "[i]f an investigating 
authority does not possess su fficient evidence on the record to reach a determination, it may need 
to seek or accept additional evidence".10 The United  States opposes this request.11 
2.9.  We reject India's request. An investigating authority may need to seek out additional 
information from i nterested parties in order to be capable of providing a "reasoned and adequate" 
explanation for its public body finding if there is insufficient record evidence, but this will not 
necessarily be the case in all circumstances.  
2.6  Paragraph 7.28  
2.10.  India requests us to modify this paragraph to accurately describe its argument that the 
USDOC engaged in a "biased and unobjective assessment of evidence".12 The United  States did not 
object, but proposed a different formulation to that proposed by India.13 
2.11.  We acc ept India's request, which is sufficiently close to the formulation it used in its second 
written submission. We reject the United  States' alternative formulation and request.  
2.7  Paragraphs 7.42, 7.43, 7.51 and 7.67  
2.12.  India requests us to reconsider and amend t he conclusion in paragraph 7.42 that "the 
'enhanced autonomy' accorded by Miniratna is limited to only certain areas (namely 'investment 
 
6 United  States' request for int erim review, paras. 7 -8 (referring to Interim Report, fn 59). 
(emphasis  added)  
7 India's comments on the United  States' request for interim review, para. 5  
8 Interim Report, para. 7.33. (emphasis added)  
9 India's request for interim review, paras. 1 -2. 
10 India's request for interim review, paras. 3 -5 (referring to Interim Report, para. 7.26, 
emphasis  added).  
11 United  States' comments on India's request for interim review, para. 3.  
12 India's request for interim review, paras. 6 -7. 
13 United  States' comments  on India's request for interim review, paras. 4 -5. WT/DS436/RW/Add.1  
 
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  decisions and personnel matters')", and also, to specify or delete the "parameters" that were set by 
the GOI, and which  were monitored by the GOI for compliance, as referred to in paragraph 7.43 and 
subsequently.14 The United  States objects to India's requests but proposes two footnotes to 
paragraphs 7.42 and 7.43 respectively in order to clarify the Panel is relying on the  GOI's case 
brief/questionnaire response in making those remarks.15 
2.13.  We reject India's request. To recall, the GOI's own case brief description was that: "[the 
NMDC] is a [Miniratna] Category I Company, which gives it, enhanced autonomy with regard to 
invest ment decisions and personnel matters".16 The Panel acknowledges at paragraph 7.42 that the 
GOI also submitted that the NMDC "enjoys freedom in its day -to-day operations".17 However, the 
Panel then explains how the GOI clarified what this "freedom" actually m eant, namely (to quote the 
GOI): "such companies are required to enter into annual memorandums of understanding with the 
government wherein annual performance parameters and targets are agreed to" and that "[t]he 
government monitors the performance of thes e companies, during the year, against these 
parameters and targets".18 Accordingly, there is no basis for India's request to change this analysis. 
We do, however, accept the United  States' proposal to add the suggested footnotes in order to 
provide addition al clarity as to the sources relied upon in making the relevant remarks.  
2.8  Paragraph 7.50  
2.14.  India contests the statement that "GOI -appointed directors conducted price negotiations", 
and requests a modification to that alleged "conclusion".19 The United  States p roposes adding 
quotation marks to the term "GOI -appointed directors" and citing the USDOC determination in which 
it uses this term.20 
2.15.  We reject India's request. Contrary to India's submission, this is not a "Panel conclusion", but 
rather a recitation of a d etermination by the USDOC. For that reason, we accept the 
United  States'  proposal. We also note that the Report already deals with the substance of India's 
argument at paragraph 7.99.  
2.9  Paragraph 7.54  
2.16.  India requests us to clarify what is meant by the term "a dministrative control".21 The 
United  States objects to this request.22 
2.17.  We reject India's request. Contrary to India's request, the Report already deals with this 
matter in footnote 228.  
2.10  Paragraphs 7.87 -7.91 
2.18.  In respect of the Panel's discussion of whether the  NMDC applied export restrictions, India 
requests us to delete these paragraphs and modify the conclusion in paragraph 7.92.23 India argues 
that the Panel is engaged in impermissible ex post  reasoning, given that the "panel has correctly 
observed that the U SDOC did not address the matters raised by India".24 The United  States objects 
to India's request.25 
2.19.  We reject India's request. The Report already deals with the substance of India's contention 
that these passages involved impermissible ex post  reasoning at paragraph 7.91. In order to counter 
the USDOC's explanation on export restraints, India presented the alternative explanation that the 
 
14 India's request for interim review, paras. 8 -12. 
15 United  States' comments on India's request for interim review, paras. 6 -8. 
16 Interim Report, para. 7.41.  
17 Interim Report, para. 7.42.  
18 Interim Report , para. 7.43.  
19 India's request for interim review, paras. 13 -16. 
20 United  States' comments on India's request for interim review, para. 9.  
21 India's request for interim review, para. 17.  
22 United  States' comments on India's request for interim review, par a. 10.  
23 India's request for interim review, paras. 18 -20.  
24 India's request for interim review, para. 19.  
25 United  States' comments on India's request for interim review, para. 11.  WT/DS436/RW/Add.1  
 
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  NMDC was not voluntarily imposing export restraints, and therefore the USDOC's determination 
reflected a violation of Art icle 1.1(a)(1) of the SCM Agreement. We examined that alternative 
explanation, and found it implausible, since the evidence instead suggested that the NMDC was 
limiting its exports voluntarily at a level below the GOI's export cap. India now suggests at th e 
interim review stage that the Panel is not allowed to examine the evidence that shows that 
India's  alternative explanation is implausible. We have already addressed that matter as part of our 
discussion of the Panel's standard of review in paragraphs 7.5 -7.7 of the Report.  
2.11  Paragraph 7.149  
2.20.  India requests us to reconsider our conclusions in paragraph 7.149 in light of a particular 
passage of the GOI's case brief.26 The United  States objects to this request.27 
2.21.  Contrary to India's submission, the Report already deals with the aspect of the GOI's case 
brief referred to by India in footnote 345. We therefore reject India's request.  
2.12  Paragraphs 7.153 -7.163  
2.22.  India requests us to respond to the arguments made in paragraphs 189 and 190 of 
India's  second written s ubmission, namely that the GOI -mandated export caps had no actual effects 
since they were never reached.28 The United  States objects to this request, but suggests additional 
citations to make the matter clearer.29 
2.23.  Contrary to India's request, the Report alre ady deals with this matter in paragraph 7.161, 
which in turn cross -references back to section 7.2.6, with the pertinent findings at paragraphs 7.87 
and 7.88 in that section. While we reject India's request, we accept one of the 
United  States'  suggestions f or additional citations to clarify the matter at footnote 398.  
2.13  Paragraph 7.183 and footnote 465  
2.24.  The United  States requests an additional citation to India's case regarding the identification 
of the subsidy programme in the context of India's "length of tim e" claim.30 India does not comment 
on this request.  
2.25.  We reject the United  States' request, as it is already accommodated in the footnote 
immediately preceding, and there is no need for repetition.  
2.14  Paragraph 7.184 and footnote 467  
2.26.  The United  States requests c larification as to what is meant by "[f]or similar reasons…", for 
instance by bringing the reasons from footnote 467 into the body of this paragraph.31 India does not 
comment on this request.  
2.27.  We reject the United  States' request, but have made a modification to the paragraph to 
address its concerns.  
2.15  Paragraph 7.242  
2.28.  India requests that we address the argument in paragraphs 235 -238 of its second written 
submission before reaching to the conclusion in paragraph 7.242.32 India's point was essentially t hat 
an authority must "disclose" the "essential fact" in the investigation for which that fact is used, and 
 
26 India's request for interim review, paras. 21 -23. 
27 United  States' comm ents on India's request for interim review, para. 12.  
28 India's request for interim review, paras. 24 -26. 
29 United  States' comments on India's request for interim review, paras. 13 -15. 
30 United  States' request for interim review, para. 9.  
31 United  States' request for interim review, para. 10.  
32 India's request for interim review, paras. 27 -29. WT/DS436/RW/Add.1  
 
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  cannot rely on disclosures in previous administrative or sunset reviews (or from the original 
proceedings).33 The United  States objects to this reque st.34 
2.29.  We reject India's request. Contrary to India's request, the Report already deals with this 
matter in paragraph 7.234, in which we find (contrary to India's argument) that there is no rule 
necessarily requiring the re -application of the "disclosure of essential facts" provision in Section 129 
reinvestigations. Nonetheless, we find that the circumstances of the present case did indeed require 
the re -application of the "disclosure of essential facts" provision with respect to the selection of the 
correct benchmark.  Contrary to India's request, the Panel rejects the notion that export restrictions 
themselves were the "essential fact" at paragraph 7.241 and footnote 617. Therefore, in view of 
these findings, there is no basis for additionally and specificall y addressing the particular points 
mentioned by India in this interim review request.  
2.16  Paragraph 7.271  
2.30.  India requests us to modify this paragraph to accurately describe its arguments concerning 
the alleged investigation in the Section 129 proceedings of new  subsidies that do not have a 
sufficiently close link or nexus with the subsidies that resulted in the imposition of original 
countervailing duties.35 The United  States does not comment on this request.  
2.31.  We have deleted the third sentence of the paragraph an d footnote 670 of the Interim Report, 
which referred to another aspect of India's "new subsidies" claim. We consider that these changes 
reflect India's position.  
2.17  Paragraph 7.301 and footnote 717  
2.32.  The United  States requests that we expand the citations in fo otnote 717 to more accurately 
reflect the United  States' arguments.36 India does not comment on this request.  
2.33.  We have made the requested changes in this footnote.  
2.18  Paragraph 7.303 and footnotes 722 and 723  
2.34.  The United  States requests that we modify the summar y of its arguments in this paragraph 
and in the accompanying footnote, to more accurately reflect its position.37 India does not comment 
on this request.  
2.35.  We have made the requested changes.  
2.19  Paragraphs 7.305 -7.320  
2.36.  The United  States requests us to review our statements at paragraphs 7.305 –7.319 of the 
Interim Report concerning India's claim that the United  States did not implement the 
DSB recommendation concerning 19 USC § 1677(7)(G)(i)(III) in this dispute.38 According to the 
United  States, if a responding Mem ber demonstrates that it has taken steps such that a measure 
will not necessarily result in WTO -inconsistent action, or preclude WTO -consistent action, the 
complaining Member will have failed to show that the measure is WTO -inconsistent without any 
applica tion of the measure to produce, concretely, WTO -inconsistent action.39 The United  States 
further requests us to review the part of our analysis pursuant to which if the text of a measure was 
found to be "as such" WTO -inconsistent in the original proceedings , considerations concerning the 
"application" of that measure are not directly relevant for the purposes of assessing compliance.40 
 
33 India's request for interim review, para. 28.  
34 United  States' comments on India's request for interim review, para. 16.  
35 India's request for interim review, paras . 30-31. 
36 United  States' request for interim review, para. 11.  
37 United  States' request for interim review, paras. 12 -13. 
38 United  States' request for interim review, para. 14.  
39 United  States' request for interim review, para. 14.  
40 United  States' request for interim review, paras. 15 -16. WT/DS436/RW/Add.1  
 
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  2.37.  At the interim review meeting held on 19 August 2019 with the Panel, the United  States 
provided additional arguments in suppo rt of its request for interim review of the above -mentioned 
paragraphs. First, the United  States argues that the Panel has the authority under Article 15 of the 
DSU to review and change its interim findings and legal conclusions.41 Second, the United  States  
requests the Panel to modify its findings that there is no evidence that would support the existence 
of a measure that the United  States took to comply with the DSB  recommendation in the original 
dispute.42 The United  States seeks to clarify that there exi sts a measure taken to comply, and that 
is "the USDOC commitment or decision to exercise the discretion that exists under U.S. law with 
respect to self -initiation in a manner that will not lead to WTO -inconsistent action under 
Subpart  III".43 The United  States argues that it is an "unwritten measure that bears on the 
administration and operation of Subpart III"44, and that the USDOC's letter and United  States' 
statements at several DSB  meetings confirm the existence of the USDOC's commitment.45 The 
United  States further maintains that the commitment was made "after" the adoption of the 
DSB recommendations in this dispute46, and that it did not argue throughout these compliance 
proceedings that this "commitment" existed prior to the recommendations in this disput e or that the 
commitment was reflected in the statute never having been applied.47 Third, the United  States 
argues that it has demonstrated that the USDOC's "commitment" brings about compliance. In this 
respect, the United  States maintains that the Panel's interim findings reflect a view that the 
United  States was requested to modify or withdraw 19 USC § 1677(7)(G)(i)(III) to comply with the 
DSB recommendations.48 The United  States also argues that evidence that a Member has taken a 
measure to ensure that WTO -inconsistent results will not arise is relevant to the evaluation of an "as 
such" challenge.49 In particular, the United  States holds the view that while a claim against a 
measure "as such" is not concerned with the application of that measure in a particu lar instance, a 
panel should nevertheless assess how the measure may operate in practice, including the scope that 
domestic authorities are afforded to administer the measure.50 The United  States reiterates that the 
USDOC has discretion to decide when to se lf-initiate anti -dumping or CVD investigations, and thus 
"may" ensure that the conditions of 19 USC § 1677(7)(G)(i)(III) are not met.51 The United  States 
further maintains that it showed in these proceedings that it can ensure (and has ensured) that 
19 USC § 1677(7)(G)(i)(III) does not produce WTO -inconsistent results and that the USDOC has 
discretion to "withdraw a self -initiation" or prevent that it occurs on the same day as a petition is 
filed.52 According to the United  States, the USDOC "broadly" committe d to exercise its discretion 
with respect to the self -initiation of investigations consistently with the United  States' WTO 
obligations.53 The United  States submits that it presented these arguments in prior submissions to 
this Panel.54 
2.38.  India's statement at the interim review meeting addressed two main points. First, India argues 
that the United  States' request for interim review failed to identify the "precise aspects" of 
paragraphs 7.305 –7.319 of the Interim Report that the Panel is requested t o review.55 Second, India 
notes that 19 USC § 1677(7)(G)(i)(III) is still in force and that its text has not been modified since 
the original proceedings.56 India notes that opening statements and letters do not have any bearing 
on the United  States law and do not form part of the anti -dumping and countervailing laws notified 
by the United  States to the WTO. India also stresses that the United  States has rejected the 
characterization of the statements or the letters as the "measures taken to comply" with the 
DSB recommendations in the original proceedings.57 Finally, India argues that the United  States 
does not explain how the USDOC will use its discretion to avoid a situation in which the USDOC has 
 
41 United  States' opening statement at the interim review meeting, paras. 19 -30. 
42 United  States' opening statement at the interim review meeting, paras. 31 -42. 
43 United  States' opening statement at the interim review meeting, para. 31.  
44 United  States' open ing statement at the interim review meeting, para. 33.  
45 United  States' opening statement at the interim review meeting, para. 34.  
46 United  States' opening statement at the interim review meeting, para. 37.  
47 United  States' opening statement at the interim  review meeting, para. 39.  
48 United  States' opening statement at the interim review meeting, paras. 44 -46. 
49 United  States' opening statement at the interim review meeting, paras. 47 -55. 
50 United  States' opening statement at the interim review meeting, par a. 48.  
51 United  States' opening statement at the interim review meeting, para. 52.  
52 United  States' opening statement at the interim review meeting, paras. 58 -59. 
53 United  States' opening statement at the interim review meeting, para. 62.  
54 United  States' opening statement at the interim review meeting, para. 70.  
55 India's opening statement at the interim review meeting, paras. 2 -5. 
56 India's opening statement at the interim review meeting, para. 8.  
57 India's opening statement at the interim review meeting,  para. 11.  WT/DS436/RW/Add.1  
 
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  already self -initiated a countervailing duty investigation and  an anti -dumping petition is filed later 
on the same day.58 
2.39.  In a communication dated 19 August 2019, the Panel requested the United  States to submit 
citations to previous statements in these proceedings where the United  States had already argued 
that the US DOC's "commitment" was made after the adoption of the DSB  recommendation in the 
original proceedings.59 The United  States, in its response dated 20 August 2019, listed the following 
citations: Exhibit USA -36; Exhibit USA -37; United  States' first written sub mission, para. 51; 
United  States' first written submission, paras. 52 -53; United  States' first written submission, 
para. 54; and United  States' response to Panel question No. 54, para. 130.60 
2.40.  In its written comments submitted on 26 August 2019, India argues that the 
United  States'  opening statement (a) contradicts the arguments made during the compliance 
proceedings; (b) has already been addressed by the Panel; and (c) is tantamount to a request to 
review the Appellate Body's findings in the original p roceedings.61 India argues that, contrary to the 
United  States' arguments, the Panel has not observed in its Interim Report that the United  States 
could have only complied with the DSB  recommendations in the original proceedings by amending 
or repealing 19 USC § 1677(7)(G)(i)(III).62 India also maintains that none of the citations submitted 
by the United  States indicates that the commitment to exercise discretion in a particular manner 
was made after the adoption of the DSB  recommendation.63 Finally, India arg ues that Article 15.2 
of the DSU does not allow a panel to consider contradictory arguments in the context of an interim 
review.64 
2.41.  The United  States submitted comments in response to India's comments on 29 August 2019. 
In that context, the United  States arg ues that it duly identified the precise aspects of the Interim 
Report for which it seeks the Panel's review.65 The United  States submits that a compliance panel 
should not insist that a Member take legislative action when that is not required to achieve 
conformity with WTO rules.66 The United  States notes that India's response to the 
United  States'  citations disagrees with the "content" of the arguments identified in those prior 
submissions, but that India does not attempt to argue that the United  States fail ed to make the 
relevant arguments in prior submissions.67 
2.42.  We have reviewed the parties' requests and comments. An assessment of the United  States' 
arguments in support of its request to review paragraphs 7.305 – 7.319 of the Interim Report reveals 
that they  are new and different from the arguments that it had presented prior to the interim review 
meeting in these compliance proceedings. In particular, the United  States' request for interim review 
is premised on an understanding on the nature and form of the "commitment" that does not comport 
with the explanation of the "commitment" that it had previously provided throughout the 
proceedings. Indeed, the United  States seeks to advance a new case theory whereby the measure 
taken to comply took the form of an unw ritten decision that was later "memorialized" in an exchange 
of letters between the Office of the USTR and the USDOC, and which was specifically adopted after 
the adoption of the DSB  recommendations in the original dispute.  
2.43.  We now turn to the citations tha t the United  States submitted to the Panel on 20 August 2019. 
According to the United  States, the listed citations refer to passages from prior submissions in which 
it had allegedly already argued that a "commitment" was taken after the adverse DSB  ruling and in 
response to it. As explained below, these citations do not support the United  States' position. These 
passages merely pertain to action taken after the DSB  ruling to confirm  a commitment by the 
USDOC. The passages do not demonstrate  that the commitm ent itself was adopted after the 
DSB ruling. The United  States first refers to Exhibits USA -36 and USA -37. These two exhibits are 
the letters exchanged between the Office of the USTR and the USDOC after the adoption of the 
DSB recommendations. In these let ters, the Office of the USTR requests that the USDOC "confirm" 
 
58 India's statement at the interim review meeting, para. 14.  
59 Panel's communication of 19 August 2019.  
60 United  States' letter to the Panel of 20 August 2019.  
61 India's written comments on the United  States' opening statement, paras. 2 -8. 
62 India's written comments on the United  States' opening statement, para. 10.  
63 India's written comments on the United  States' opening statement, para. 17.  
64 India's written comments on the United  States' opening statement, para. 18.  
65 United  States' written co mments on India's written comments, paras. 4 -5. 
66 United  States' written comments on India's written comments, para. 11.  
67 United  States' written comments on India's written comments, para. 12.  WT/DS436/RW/Add.1  
 
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  that it will exercise its discretion in a manner consistent with the international obligations of the 
United  States, and the USDOC responded that it "confirm[ed]" the said commitment. These let ters 
thus pertain to the confirmation  of a commitment, rather than to the "commitment" itself. They do 
not show that the commitment itself was taken after adoption of the DSB  recommendations. The 
United  States then cites to paragraph 51 of its first writte n submission. Again, this passage pertains 
to the "confirmation" of the commitment, not the commitment itself. When read in the light of the 
preceding sentence – i.e. that the United  States had "continued to not take any actions in that 
respect" – the "com mitment" appears to reflect a continuing circumstance, i.e. a continuation of 
something already in existence. The United  States also refers to paragraphs 52 and 53 of its first 
written submission, which again relate to the "confirmation" of the commitment through the letters 
and the DSB  statements, and are silent on the timing of the "commitment" itself. The United  States 
next cites paragraph 54 of its first written submission, which states that the United  States " took 
affirmative steps to implement the DSB  'recommendation' as the USDOC confirmed its commitment " 
– but again, the "steps" referred to are the "confirmation" of the commitment, not the commitment 
itself, hence this does not shed light on the timing of that commitment. Finally, the United  States 
cites paragraph 130 of its responses to the Panel's questions, in which the United  States affirms that 
it "did take action", but again the only proof submitted was that "the letter exchange reflects the 
USDOC's commitment (or decision) to exercise its discr etion in a WTO -consistent manner", as 
opposed to the adoption of the commitment itself.  
2.44.  While the United  States had argued throughout these proceedings that the meaningfulness of 
the USDOC's commitment could be found, inter alia , in the circumstance that 
19 USC § 1677(7)(G)(i)(III) had never been applied68, it now contends that this was not its 
position.69 We find another inconsistency in the United  States' position when comparing the 
United  States' argument at the interim review meeting that the "commitment"  was specifically 
adopted to implement the DSB  ruling70 with the statement made earlier in the proceedings that 
"[t]he exchange of letters and other U.S. statements serve to confirm  that the United  States has 
been, and continues to be , in compliance".71 
2.45.  The United  States asserted at the interim review meeting72 that the measure taken to comply 
constituted an "unwritten measure". Earlier in these proceedings, we asked the United  States a set 
of questions. One question, dealing specifically with the form of the alleged measure taken to 
comply, asked the United  States to identify the date when the commitment took effect, as well as 
how it was made manifest.73 In its replies to this set of questions, the United  States omitted to 
include any response to this specific  question. Indeed, the United  States omitted any reference to 
our question from its replies. The only reference that we have been able to identify in the 
United  States' prior submissions pertaining to an "unwritten measure" refers to a generic passage 
in the United  States' response to the Panel questioning that a Member could decide to engage (or 
not) in action that amounts to an unwritten measure.74 It is not at all apparent from this statement 
that the United  States' contended specifically that the "commit ment" took the form of an "unwritten 
measure".  
2.46.  Finally, we also note that the interim review meeting was the first instance where the 
United  States used the term "memorialise" to describe the relationship between the "commitment" 
 
68 See, in particular, United  States' first written submission, para. 47:  
"Section 1677(7)(G)(i)(III) has never been used because of the discretionary element in the 
statute that was not discussed in the Appellate Body's findings. Under the statute, the 
administering authority charged with initiation, the USDOC, has discretion as to the timing of a 
self-initiated investigation. This discretion is not constrained. If the USDOC does not self -initiate 
an investigation on the same day a petition is filed by an in dustry, the statute will never be 
triggered. In other words, the statute's potential for cross -cumulation and use in the manner 
identified as raising WTO concerns is only possible if the USDOC takes the positive action to self -
initiate. Continued non -use o f the statute ensures the conditions of the statute will not be met."  
See also United  States' response to Panel Question No. 54, para. 132.  
69 United  States' opening statement at the interim review meeting, para. 39.  
70 United  States' opening statement at th e interim review meeting, paras. 5 and 37.  
71 United  States' response to Panel question No. 60, para. 147. (italics original; underlining added) See 
also United  States' second written submission, para. 33.  
72 United  States' opening statement at the interim r eview meeting, para. 33.  
73 Panel question No. 55: "… Can the United  States identify the date when this 'commitment' took effect 
and how it was made manifest?"  
74 United  States' response to Panel question No. 54, para. 130.  WT/DS436/RW/Add.1  
 
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  and the exchange of lette rs.75 The term "memorialise" in relation to documents stems from the term 
"memorial", which means: "1. An abstract of a legal record, esp. a deed; … 2. A written statement 
of facts presented to a legislature or executive as a petition".76 By contrast, prior to the interim 
review meeting, the United  States appeared to present the function of the exchange of letters as 
being a confirmation that the pre -existing "commitment" would continue.77 This description of the 
function of the exchange of letters did not cle arly articulate that the letters themselves were the 
legal record of the "commitment". This understanding was reinforced by the United  States' explicit 
rejection of the exchange of letters as themselves being the "measure taken to comply".78 If the 
"commitm ent" was "memorialised" in the exchange of letters in the way that the United  States now 
argues, then the exchange of letters would necessarily be a manifestation of the measure taken to 
comply (i.e. the "commitment"). But the United  States rejected this p ossibility during the 
proceedings.79 The United  States has not drawn our attention to any aspect of its argument prior to 
the interim review meeting in which it contended that the exchange of letters "memorialised" the 
"commitment", as distinct from "confirming" that the commitment would "continue".80  
2.47.  Based on the foregoing, we do not understand the United  States' arguments at the interim 
review meeting to be a mere clarification of existing arguments that the United  States had already 
made during the  proceedings.81 Rather, the United  States' arguments at the interim review stage 
have a fundamentally different logic to those presented during the proceedings and are equivalent 
to presenting a new case theory regarding matters such as the timing, form, an d purpose of the 
"commitment". We note that, according to the Working Procedures, the United  States' new case 
theory should have been set out in the United  States' first written submission.82 To the extent that 
its arguments were unclear, the United  States could still correct its position in its second written 
submission83 and in response to the Panel's questions that directly probed matters relating to the 
purpose, timing, and form of the "commitment".84 Against this background, there is no basis in the 
Worki ng Procedures to examine a new case theory at this late juncture.85 
2.48.  We therefore reject the United  States' arguments pertaining to paragraphs 7.305 -7.319 of 
the Interim Report on their merits. Having rejected the United  States' interim review request on its  
merits in that regard, we do not consider it necessary to address India's objections that the 
United  States' requests exceed the scope of the interim review process as established pursuant to 
Article 15 of the DSU.  
2.49.  Without changing the substance of our fi ndings and conclusions, we nevertheless take this 
opportunity to make certain amendments with a view to improving the clarity of our Final Report. 
Specifically, we note that the United  States infers from the Interim Report that the only way in which 
the Un ited States could comply with the adverse DSB  ruling was to repeal or amend 19 USC 
§ 1677(7)(G)(i)(III).86 We did not make any such finding in our Interim Report. To avoid any 
 
75 This is based on our review of t he United  States' first written submission, second written submission, 
response to the Panel's questions, comments on India's response to the Panel's questions, and executive 
summaries.  
76 Black's Law Dictionary , 11th edn, Bryan A. Garner (ed.) (2019), defi nition of "memorial".  
77 United  States' response to Panel question No. 61, para 154.  
78 United  States' first written submission, para. 56; second written submission, para. 33. 
79 United  States' first written submission, para. 56; second written submission, paras. 33-34; and 
response to Panel question No. 60, para. 147.  
80 See also United  States' response to Panel question No. 61, para. 154: The United  States stated that it 
had "conf irmed the USDOC's commitment to (continue to) exercise its discretion as to the timing of any 
self-initiated investigation in a WTO -consistent manner", and the United  States made this reference in relation 
to the DSB  statements, which in turn referred to t he confirmation reflected in the exchange of letters 
(United  States' first written submission, para. 55; request for interim review, para. 17).  
81 See United  States' opening statement at the interim review meeting, paras. 7, 20, 39, and 70.  
82 Paragraph 3(1) (a) of the Working Procedures. In a similar vein, see also Panel Reports, US – Washing 
Machines , paras. 7.82 -7.85; China – Broiler Products (Article 21.5 – US), para. 7.452.  
83 Paragraph 3(1)(b) of the Working Procedures.  
84 Paragraph 16(f)(iii) of the Worki ng Procedures. See also Panel questions Nos. 54, 55, 56, 60, and 61.  
85 Panel Report, US – 1916 Act (EC), para. 5.18 (upheld on appeal: Appellate Body Report, US – 1916 
Act (EC) , para. 54). In the analogous context regarding the submission of new evidence a t late stages, see, 
e.g. Panel Reports, Russia – Railway Equipment , para. 6.46; EC – IT Products , para. 6.48; and  Korea – 
Pneumatic Valves (Japan) , para. 7.308.  
86 Contra , see United  States' opening statement at the interim review meeting, paras. 46 and 69 . WT/DS436/RW/Add.1  
 
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  misunderstanding, we have expanded the language in paragraph 7.306 of the Final R eport. We have 
also modified paragraphs 7.315 to 7.320 of the Final Report.  
2.20  Paragraph 7.314  
2.50.  The United  States requests that the Panel delete the last sentence of the paragraph, which 
originally reported that there is no evidence proving that the letters ex changed between the USDOC 
and the office of the USTR were published or otherwise made known to the general public before 
these compliance proceedings.87 The United  States argues that the commitment expressed in that 
letter exchange was disclosed through pub lic statements of the United  States' delegation in the DSB, 
and the letter exchange was submitted to the Panel and forms part of the record of the dispute.88 
India does not comment on this request.  
2.51.  We have deleted the expression "or made otherwise known to the general public", in the light 
of the United  States' arguments that the content of the letters was made known to the public by 
means of official statements in the DSB. Nevertheless, the clarification submitted by the 
United  States that the letters are p art of the record of the dispute does not alter our understanding 
that the letters were not published before the compliance proceedings. Accordingly, we decline to 
change the first part of the final sentence of paragraph 7.314.  
2.21  Section 7.10.3 and paragrap h 7.350  
2.52.  India's comments are in response to the following sentence at paragraph 7.349 of the 
Interim  Report: "India does not challenge a generic failure by the USITC to consider the significance 
of price underselling". India considers that, in stating so, the Panel failed to consider the full extent 
of India's submissions concerning its price undercutting claim and accordingly requests us to review 
our findings.89 The United  States notes that, in principle, a panel may reconsider and amend factual 
or legal c onclusions contained in an interim report as part of its review of precise aspects of that 
report.90 However, the United  States considers that we have addressed each of the issues relating 
to underselling raised by the statements to which India points.91 Accordingly, the United  States 
considers that we should not accede to India' request.92 
2.53.  India argues that the Panel has failed to consider India's submissions recorded at 
paragraphs  48 and 49 of India's first written submission, as well as at paragraphs 53, 54 , and 58 of 
India's second written submission.93 As regards the references to India's first written submission, 
they relate to conclusive paragraphs concerning arguments submitted by India in support of its claim 
that the United  States has acted inconsisten tly with Articles 15.1 and 15.2 of the SCM Agreement in 
its price underselling analysis. To the extent that India refers to the alleged failure to consider "the 
existence of a link or relationship between the alleged subsidized imports and the price of the  
domestic like products", we decline to review our findings because we have already addressed that 
matter in the Report. We refer to our analysis in Section 7.10.3 of the Final Report (unchanged from 
the Interim Report) and, specifically, to the emphasis o n the "explanatory force" that subsidized 
imports must have on the price effects determined to occur on the domestic products.94 India further 
cites to three paragraphs from its second written submission. Paragraph 53 thereof again refers to 
the obligation for an investigating authority to determine whether subject imports have an 
"explanatory force" for the price effects found to occur. For the reasons provided earlier, we do not 
believe that India's reference warrants a change to Section 7.10.3 of the Repo rt. Paragraph 54 of 
India's second written submission refers to the allegations that the USITC disregarded evidence that 
would call into question the explanatory force of subject imports on the price effects for the domestic 
industry. The paragraphs points  to the USITC's "discard[ing]" of the COMPAS model results. We 
note, in this respect, that we have devoted the entire Section 7.10.2 to India's claim that the USITC 
had ignored data from the original determination, specifically addressing India's arguments  
pertaining to the USITC's alleged "discard[ing]" of the COMPAS model results. As we had already 
 
87 United  States' request for interim review, para. 17.  
88 United  States' request for interim review, para. 17.  
89 India's request for interim review, paras. 33 -35. 
90 United  States' comments on India's request for interim review, para. 17.  
91 United  States' comments on India's request for interim review, para. 17.  
92 United  States' comments on India's request for interim review, para. 17.  
93 India's request for interim review, para. 33.  
94 See, in particular, paragraphs 7.346, 7.351, and 7.353 of the Final Report.  WT/DS436/RW/Add.1  
 
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  concluded that India's arguments on the COMPAS model results fell outside of the scope of these 
compliance proceedings, we could not rely on those arguments fo r the purposes of reviewing 
India's  price undercutting claim. Accordingly, we decline to modify our analysis in Section 7.10.3. 
Finally, paragraph 58 of India's second written submission concerns the alleged failure by the 
United  States to explain "how or why the instances of price undercutting which it has observed to 
exist may be deemed to be 'significant '". We note that the Final Report already refers to 
paragraph  58 of India's  second written submission twice.95 We further note that our conclusions in 
paragraph  7.354 already respond to India's allegations.  
2.54.  In the light of the foregoing, we do not consider it necessary to substantially change our 
findings and conclusions. To improve the clarity of our Report, we have nevertheless modified the 
first sentence  of paragraph 7.350. We consider that this amendment duly reflects the full extent of 
India's submissions when read in conjunction with the remainder of Section 7.10.3 and, in particular, 
with our observation at paragraph 7.355 that we "dismissed a number of other India's claims 
because they are not within the scope of the compliance proceedings".  
2.22  Paragraph 7.385 and footnotes 874, 875, and 876  
2.55.  The United  States requests that the Panel reconsider its findings related to dumped, non -
subsidized imports from China, Kazakhstan, the Netherlands, Romania, Chinese Taipei, and 
Ukraine.96 The United  States argues that these  finding s appear not to be based on a specific claim 
or argument by India.97 In the alternative, the United  States requests that the Panel modify 
paragraph  7.384 of the Interim Report so as to reflect that India "noted" the presence of dumped, 
non-subsidized imports from the above -mentioned countries, but did not raise a "claim" on their 
relevance to the USITC's analysis under Article 15.5 of the SCM  Agreement.98 India rebuts that it 
has clearly raised a claim in this respect.99 Specifically, India refers to paragraph 61 of its first written 
submission, which lists imports from the six above -listed countries as a factor that the United  States 
"failed to  consider".100 Furthermore, India notes that paragraphs 76 and 79 of its second written 
submission also refer explicitly to imports from those six countries in the context of its non -
attribution claim.101 Accordingly, India requests that we reject the United  States' request.102 
2.56.  We note that India has argued throughout the proceedings that the USITC failed to address 
the injurious effects of certain factors, including non -subsidized, dumped imports from nine countries 
(China, Kazakhstan, the Netherlands, Romania, Chinese Taipei, Ukraine, Brazil, Russia and 
Japan).103  To improve the clarity of our report, we have decided to distinguish between the 
USITC's  examination of imports from Brazil, Japan, and the Russian Federation, on the one hand, 
and imports from China, K azakhstan, the Netherlands, Romania, Chinese Taipei, and Ukraine, on 
the other hand. The fact that India has brought an all -encompassing claim concerning the impact of 
all dumped, non -subsidized imports does not prevent the Panel from examining parts of th e same 
claim in different subsections, with a view to improving the clarity of its analysis. Therefore, we 
decline to make the requested changes. For greater clarity, however, we now explicitly affirm in the 
Final Report that we subdivide our analysis of I ndia's arguments concerning the treatment of 
dumped, non -subsidized imports in the USITC's non -attribution analysis (see paragraph 7.376).  
2.23  Paragraph 7.386 and footnotes 878 and 879  
2.57.  The United  States requests that we emphasise that certain arguments that ar e attributed to 
it were made in response to questions raised by the Panel.104 The United  States further requests 
that the third and the fourth sentences of the paragraph be deleted, because they address the 
United  States' submissions made in response to India's claim that the USITC did not conduct any 
non-attribution analysis, and are not relevant to the issue addressed in Section 7.12.3.1.2.105 India 
 
95 Final Report, fns 802 and 803.  
96 United  States' request for interim review, para. 18.  
97 United  States' request for interim review, para. 18.  
98 United  States' request for interim  review, para. 19.  
99 India's comments on the United  States' request for interim review, para. 7.  
100 India's comments on the United  States' request for interim review, para. 7.  
101 India's comments on the United  States' request for interim review, para. 7.  
102 India's comments on the United  States' request for interim review, para. 8.  
103 India's first written submission, paras. 61 and 63; second written submission, para. 79.  
104 United  States' request for interim review, para. 20.  
105 United  States' request for interi m review, para. 20.  WT/DS436/RW/Add.1  
 
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  objects to the request, noting that it fails to understand how or why the United  States claims that 
the Panel's reference to the United  States' submissions is inappropriate.106 
2.58.  We accept t he United  States' request to clarify that certain arguments were submitted in 
response to our questioning. Accordingly, we amend the first sentence of paragraph 7.386 and the 
references in footnote 877. We decline to make the other requested changes, as th e citations 
identified by the United  States relate to arguments raised in connection to the treatment of 
non-subsidized imports in the context of the USITC's non -attribution analysis. Accordingly, they bear 
relevance to the examination to the matter examin ed by the Panel in Section 7.12.3.1.2.  
2.24  Paragraph 7.391  
2.59.  The United  States request that the Panel correct the numerical notation of import volumes to 
comport with the standard accepted by the USITC for rounding data.107 India does not comment on 
this request.108 
2.60.  We have made the requested change.  
2.25  Paragraph 7.390 and footnotes 867 and 868  
2.61.  The United  States requests that the panel correct the page number citations in the two 
footnotes.109 India objects that the citations are accurate.110 
2.62.  We note that the citations are accurate and, accordingly, we decline to make the requested 
change.  
2.26  Paragraphs 8.1(g)  
2.63.  The United  States identified a number of clerical errors in the form of inconsistencies i n 
paragraphs 8.1(g) and 8.1(h) of the Interim Report as between findings and subsidy programmes 
mentioned in those paragraphs, and the findings and subsidy programmes referred to in the relevant 
sections of the Interim Report.111 India did not comment. We ha ve corrected the errors identified by 
the United  States to ensure that the proper findings and subsidy programmes are addressed in these 
aspects of section 8.  
2.27  Paragraph 8.1(m)(iv)  
2.64.  The United  States requests that we reconsider our finding in relation to Art icles 15.1 and 15.5 
of the SCM Agreement and, accordingly, revise our conclusions and recommendations.112 India 
objects.113 
2.65.  Consistent with our decision to not make the changes that the United  States requested with 
regard to our analysis of India's non -attribu tion claims, we also reject the request to modify our 
conclusions and recommendations in that respect.  
  
 
106 India's comments on the United  States' request for interim review, paras. 9 -11. 
107 United  States' request for interim review, para. 22.  
108 India's comments on the United  States' request for interim review, para. 13.  
109 United  States' req uest for interim review, para. 34.  
110 India's comments on the United  States' request for interim review, paras. 16 -17. 
111 United  States' request for interim review, paras. 23 -25. 
112 United  States' request for interim review, para. 28.  
113 India's comments on the United  States' request for interim review, paras. 14 -15. WT/DS436/RW/Add.1  
 
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  ANNEX A -4 
TIMETABLE FOR THE PA NEL PROCEEDINGS1 
Adopted on 27 June 2018  
Revised on 14 February 2019  
 
Referred to original panel on 27  April 2018  
Compliance panel composed on 25 May 2018  
Description  Dates2 
a. Receipt of first written submissions   
i. India 27 July 2018  
ii. United States  14 September 2018  
b. Receipt of third parties' written submissions  5 October 2018  
c. Receipt of rebuttal submissions   
i. India 
ii. United States  26 October 2018  
 
7 December 2018  
d.  
i. Substantive meeting with the Parties:  
ii. Third party session:   
30-31 January 2019  
31 January 2019  
e. Receipt of responses to questions posed by the Panel  15 February 2019  
f. Receipt of comments on responses to questions posed by the Panel  1 March 2019  
g. Receipt of the integrated executive summaries of the parties and of the 
executive summaries of third parties:  8 March 2019  
h. Issuance of descriptive part of the report to the parties  5 April 2019  
i. Receipt of comments by the parties on the descriptive part of the report  29 April 2019  
j. Issuance of the interim report, including findings and conclusions to the 
parties  12 July 2019  
k. Deadline for parties to request review of part(s) of the report and to 
request interim review meeting  26 July 2019  
l. Interim review meeting, if requested – If no meeting requested, deadline 
for comments on requests for review  9 August 2019  
m. Issuance of final report to the parties  tbd3 
n. Circulation of the final report to the Members  After translation  
_______________  
 
 
1 The above timetable may be changed in the light of subsequent developments . 
2 The exact time of the deadline for receipt of documents are 5pm of the date indicated in this column 
unless the Panel separately otherwise indicates.  
3 "To be determined".  WT/DS436/RW/Add.1  
 
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  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 
 
 WT/DS436/RW/Add.1  
 
- 27 - 
 
   
ANNEX  B-1 
INTEGRATED EXECUTIVE  SUMMARY OF THE ARGU MENTS OF INDIA  
EXECUTIVE SUMMARY OF THE FIRST WRITTEN SUBMISSION  
 
1. On 19 December 2014, the DSB adopted the recommendations and rulings of the 
Appellate  Body and the Panel in US – Carbon Steel (India) . The DSB found that the United States of 
America (USA) imposed count ervailing duties on exports 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  State s bring its measures into conformity with its obligations under the SCM Agreement. The 
USA agreed to bring its measures into conformity with a reasonable period of time (RPT), which 
expired on April 18,  2016. The USA failed to do so and accordingly, India raised the dispute under 
Article  21.5 of the DSU on the grounds mentioned below:  
 
I. Inconsistency of 19 USC § 1677(7)(G)(i)(III) with Articles 15.1 to 15.5 of the 
SCM Agreement  
 
2. 19 USC § 1677(7)(G)(i)(III) requires, in a CVD investigation, cumulation of imports from 
countries not subjected to CVD investigations, for determining material injury in an original 
investigation. The Appellate Body held the said provision to be "as such" inconsistent with 
Articles  15.1 to 15.5 of the SCM Agreement.  
 
3. The United States has failed to remove or amend 19 USC § 1677(7)(G)(i)(III), even after 
expiry of the RPT. Instead, the United States claimed in the DSB meeting, after the expiration of 
RPT, that the USDOC would not self -initiate CVD investigation on the s ame day an anti -dumping 
investigation petition is filed or vice versa so that there is no occasion to invoke 
19 USC § 1677(7)(G)(i) (III). For this purpose, the United States also relied on letters exchanged 
between the USTR and the USDOC in June 2016.  
 
4. An oral statement or oral commitment without any amendments to the law cannot be 
considered as a measure taken to comply with the recommendations and rulings of the DSB. 
Moreover, the United States has not denied that cumulation of imports will take place  if 19 USC 
§ 1677(7)(G)(i)(III) is triggered. In any case, the existence of discretion to trigger 19 USC 
§ 1677(7)(G)(i)(III) is an ex-post facto  rationalization to justify a measure which is declared "as 
such" inconsistent with the SCM Agreement by the Ap pellate Body.  
 
II. Inconsistency of Section 129 Determination by the USITC with Articles 15.1 to 15.5 
of the SCM Agreement  
 
5. The Panel determined that the United States had acted inconsistently with the obligations set 
forth under Article 15 of the SCM Agreement in so far as it conducted its injury assessment by 
cumulating the imports arising from subsidized and non -subsidized sources that were not 
simultaneously subject to countervailing duty investigations. The Appellate Body upheld the Panel's 
finding s. 
 
6. The United States was required to assess the effect of the subsidized imports on prices, 
considering whether there has been a significant  price undercutting by the subsidized imports on 
the prices of the like product or whether the subsidized import s resulted in depressing the prices of 
the like product or preventing price increases to a significant  degree.  
 
7. The USITC analysis only covered instances of price undercutting. Although underselling or 
overselling margins were also calculated for those instances, USITC did not consider them in the 
final determinations made. The USITC failed to consider the significance  of the magnitude of 
underselling in each of these instances. Further, in the March 2001 Determination, the USITC noted 
that subsidized im ports did not have a significant price effect on the domestic industry. The COMPAS 
model impact analysis showed that subsidized imports taken together would have an impact of 0.3% WT/DS436/RW/Add.1  
 
- 28 - 
 
  to 0.4% on the prices of US producers. Information which formed part of the original record cannot 
be ignored or brushed aside especially when the conclusions are diametrically opposite.  
 
8. The assessment carried out by the USITC in its Section 129 Determination is perfunctory at 
best and grossly falls short of the obligation to ensure an "objective examination" based on "positive 
evidence" of the impact of subsidized imports on the relevant economic factors and indices of the 
domestic industry. When there is positive movement in a number of factors, it would require a 
compelling explanation from the investigating authorities as to how in light of such positive trends, 
the domestic industry is  materially injured.  
 
9. The United States was required not to attribute the impact of other factors, while assessing 
injury caused by the subsidized imports. The USITC failed to assess the injurious effect of other 
factors including contraction in demand,  loss in productivity of the domestic industry owing to 
inherent reasons, and non -subsidized but dumped imports from at least 9 countries. The USITC 
failed to address the injurious effect of other factors. The USITC also failed to explain the nature and 
extent of these factors, separating and distinguishing them from other factors, such as loss in 
productivity.  
 
III. Inconsistency of Public Body determination with Article 1.1(a)(1) of the 
SCM Agreement  
 
10. The Appellate Body held that a public body within the meaning of Article 1.1(a)(1) of the 
SCM Agreement must be an entity that possesses, exercises or is vested with governmental 
authority. Under this standard, evidence of government ownership "cannot, without more", serve as 
a basis for establishing that  the entity is vested with authority to perform a governmental function. 
The Appellate Body in US – Carbon Steel (India) issued a categorical finding that GOI's ownership 
interest in the NMDC, the GOI's power to appoint and nominate directors, and the refe rence on the 
NMDC's website indicating that NMDC is under "administrative control" of the GOI, are all merely 
evidence of "formal indicia" of control, and that these factors " do not provide a sufficient basis for a 
determination that an entity is a public body that possesses, exercises, or is vested with 
governmental authority ". 
 
11. The issue before the Panel is whether the USDOC has accounted for the above failures in 
Section 129 Determinations. It is an acknowledged fact that NMDC had 'miniratna' or 'nav aratna' 
status during the period in question since this information was placed on record. The GOI asserted 
that such status gives NMDC " enhanced autonomy ". In this regard, the Appellate Body observed 
that it was troubled by the Panel's failure to consider whether the USDOC properly assessed the 
implications of the status of the NMDC in the legal order of India . If the USDOC was in doubt, the 
USDOC was under an obligation to seek out the required clarifications or information to properly 
investigate this asp ect in a reasonable and objective manner.  
 
12. The USDOC  has attempted to demonstrate that NMDC is under the meaningful control of the 
GOI, in its day -to-day operations. However, these conclusions of the USDOC suffer from serious 
factual infirmities. For instance, the actual price negotiations for NMDC are carried out by a 
"Committee of Directors" and not the general Board of Directors. No evidence has been cited to 
suggest that this "Committee of Directors" comprises only of GOI appointed board members. 
Moreover, the USDOC has not given 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 AR. 
 
13. The two other factors relied upon by the United State s relate to the export restrictions on iron 
ore. India submits that such export restrictions were a general measure applicable to all iron ore 
exporters. It was a legal mandate applied by the GOI to all iron ore exporters and it is not the case 
that the NM DC voluntarily decided to not export iron ore. The fact that the Chairman of NMDC 
occupied another position in another governmental committee that recommended such an export 
restriction, does not necessarily imply that the Board of Directors of NMDC had ma de any decisions 
on the same. No such positive evidence exists on record. The conclusion that market conditions in 
India were influenced by the export restrictions is also a mere assertion by USDOC unsupported any 
evidence on record.  
 
14. While there is ev idence on record  that minerals are indeed owned by the State Governments 
within India, India submits that there is insufficient evidence for the USDOC to conclude that mining WT/DS436/RW/Add.1  
 
- 29 - 
 
  of iron ore (or mining per se ) is a government function. Also, NMDC does not approve or provide 
mining leases; it merely mines, and there is no positive evidence stating that mining is per se  a 
governmental function in India or elsewhere.  
 
IV. Inconsistencies of specificity determinations with Articles 2.1(c) and 2.4 of the 
SCM Agreement  
 
15. After a careful review of the USDOC's determinations, the Panel found that the USDOC failed 
to comply with the Article 2.1(c) requirement to take those factors into account when determining 
whether the provision of goods by NMDC is de facto  specific. The United St ates did not appeal the 
findings of the Panel. The USDOC issued its preliminary determination in two parts, on 
March  17, 2016 and March 18, 2016 and failed to address these issues. During the course of 
Section  129 proceedings, the USDOC did not solicit any  information relating to analysis under 
Article  2.1(c), including information which could be relevant for determining the existence, content 
or scope of the subsidy programmes at issue.  
 
16. Article 2.1(c) requires the investigating authority to account fo r "the length of time during 
which the subsidy programme has been in operation". Therefore, it follows that the investigating 
authority must evaluate whether a "plan or scheme" existed pursuant to which the subsidy at issue 
was provided. In the original as  well as Section 129 Determinations, the USDOC has never 
undertaken such an exercise.  
 
17. In its analysis, not once did the USDOC refer to when the alleged programme was established, 
whether such a plan or scheme existed and for how long had the alleged s ubsidy been provided. The 
second element of the USDOC's analysis was the fact that NMDC was established in the year 1958. 
The USDOC conflated the identification of the granting authority with the identification of subsidy 
programme.  
 
18. During the course  of the Section 129 proceedings, the USDOC did not ask a single question 
to India or solicit any information concerning "the length of time during which the subsidy 
programme has been in operation". Therefore, India submits that the USDOC has failed to 
substantiate its finding based on positive evidence and continues to be in violation of Article 2.1(c) 
of the SCM Agreement.  
 
19. In Section 129 Determination, the USDOC determined that Mining Rights of Iron were de facto  
specific. The Section 129 Determination is erroneous and contradicts the facts on record. The rules 
made under MMDR Act indicate that the GOI grants mining leases b ased on objective criteria and 
conditions. The evidence conclusively establishes that the grant of mining rights for iron ore was not 
restricted to just steel producers and large numbers of leases for iron -ore mining were granted 
during the POR to various entities, including steelmakers and stand -alone miners.  
 
20. Article 2.1(c) also mandates that "the extent of diversification of economic activities within  
the jurisdiction of the granting authority, as well as the length of time during which the subsidy 
programme has been in operation" are two factors that need to be taken into account before 
concluding that a given subsidy is de facto  specific. A perusal of the determinations made by the 
United States would show that no attempt has been made to consider t he economic diversification 
in India and the length of time the two subsidy programs "Mining Rights of Iron Ore" and "Mining of 
Coal" have existed in India , while concluding that they were de facto  specific.  
 
V. Inconsistency of rejection of in -country pr ice of iron ore as benchmark with the 
chapeau to Article  14 & Article 14(d) of the SCM Agreement  
 
21. During the 2006 AR, domestic price information of iron ore as reported by the Mine 
Owners  /Goa Mineral Ore Exporters Association was filed by the GOI and Tata Steel. However, the 
USDOC did not consider these in -country price information for determining benefit conferred by the 
(i) sale of high grade iron ore by NMDC, and (ii) mining rights of iron ore programs but relied on 
export price from Australia repor ted in the Tex Report as appropriate benchmark. The Panel ruled 
that the information in question shows that it does relate to domestic prices in India but the USDOC 
failed to consider this information on record as benchmark.   
 
22. The Panel concluded that the USDOC had not supported its decision by any rationale or 
justification in its determination and there is no explanation by the USDOC as to why it applied WT/DS436/RW/Add.1  
 
- 30 - 
 
  Tier II instead of Tier I benchmarks. Consequently, the Panel concluded t hat the USDOC 
determination was inconsistent with Article 14(d) of the SCM Agreement. This finding of the Panel 
was not appealed by the United States. The USDOC concluded in its Section 129 Determination that 
the information on record was not suitable for benchmark price and therefore, it used prices from 
Australia, as listed in the Tex Report.  
 
23. The United States specifically agreed that Tier I price "could include" other types of 
transactions i.e. other than the illustrative list of sample transaction s contained in 19 
CFR 351.511(a)(2)(i). However, the USDOC in its final determination pursuant to Section 129 
proceedings strictly relied on its preference for actual transaction price. The regulatory preference 
for "actual transaction price" as the sole r eason for rejecting the private domestic price information 
is not consistent with Article 14(d) of the SCM Agreement. Article 14(d) does not require use of 
actual transaction prices.  
 
24. The information on record suggests that the prices reported in Tex R eport are also not actual 
transaction prices. The Tex Report price chart is labelled as "Price Negotiations". In fact, in the 
2006 AR, the USDOC observed that Tex Report contains world -wide price negotiations for iron ore , 
and include prices for high -grade  iron ore that were set for 2006. The USDOC should have also 
demonstrated as to how the price information contained in the Tex Report was not affected by the 
same issues that affected the in -country prices i.e. of being quotes or that they also lacked deta ils 
of the buying party, terms of sale etc. The USDOC also failed to explain why it considered domestic 
price information as not actual transaction prices. The GOI emphasized on the evidence and 
explanation during the Section 129 proceedings, which was ava ilable on the record of the USDOC, 
to substantiate that the domestic price information is actual transaction price.  
 
25. The USDOC has not indicated what type of additional information would have proved that the 
price contained in the chart is actual trans action price. The terms of sale are clearly indicated in the 
chart. The categorization of entities mentioned in the price chart either as a selling entity or a buying 
entity does not in any way alter the reliability of price information as a benchmark. Sim ilarly, the 
USDOC has not explained how the absence of information regarding the name of the purchaser in 
the price quote provided by Tata prejudices the reliability of such price information as a benchmark.  
 
26. The USDOC has concluded that if the propri etary information provided by Tata is used as a 
benchmark, the proprietary information provided in the quote could be reverse calculated by the 
companies. T he USDOC has not explained that how a price quote per se , without disclosure of the 
date of the pric e, purchasing entity, selling entity, terms of sale, type of product, etc., would result 
in disclosure of proprietary information. The USDOC has already disclosed the date of the price 
quote. It is also known that the price information was supplied by Tata  Steel. The USDOC has failed 
to explain why the price quote presented by Tata Steel was not adopted as the benchmark for mining 
rights of iron ore granted to Tata Steel in the 2006 AR.  
 
VI. Inconsistency of exclusion of the NMDC export prices as benchmark s with the 
chapeau to Article 14 & Article 14(d) of the SCM Agreement  
 
27. In the 2004 AR, the USDOC adopted a world market price from the Tex Reports as benchmark 
for determining benefit conferred by (i) Sale of High Grade Iron Ore by NMDC and (ii) Captiv e mining 
rights of iron ore programs pursuant to 19 CFR § 351.511(a)(2)(ii). World market price from the 
Tex Reports contained export prices from India to Japan, as well as export prices from Australia and 
Brazil to Japan and Europe. The USDOC continued to  rely on the Tex Reports in the preliminary 
determination of the 2006 AR also. However, in the final determination of the 2006 AR, the USDOC 
ignored the NMDC export price reported in the Tex Report. The Appellate Body held that the rejection 
of NMDC export  price as a viable benchmark was inconsistent with Article 14(d) of the 
SCM Agreement.  
 
28. The USDOC observed in its final determination pursuant to Section 129 proceedings that NMDC 
export price to Japan does not constitute a viable benchmark price. Acco rding to the USDOC, the 
Appellate Body has observed that the prices charged by the government -related entity is a financial 
contribution at issue and cannot constitute viable benchmark price. The USDOC has erroneously 
concluded that NMDC export price to Ja pan is a financial contribution at issue. Only NMDC's price of 
high grade iron ore to domestic producers is the financial contribution at issue. Only in relation to 
"financial contribution at issue", the Appellate body had stated that it is  inherently circ ular to require 
that the very government price that investigating authorities are seeking to test  against the market WT/DS436/RW/Add.1  
 
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  be used as the market benchmark for the purposes of Article 14(d). In relation to the export price 
of the  government provider under investi gation, the Appellate Body has noted that it is expected 
that an investigating authority will approach such price with caution.  
 
29. The findings by the USDOC does not even attempt to explain, based on evidence, as to why 
the USDOC considered world market  prices from Australia and Brazil to be more appropriate than 
NMDC's export price.  
 
30. India submits that the factors highlighted by the USDOC may only be relevant in the context 
of their attempts to show that NMDC has  formal indicia  of government control and none relate to 
the appropriateness of the export price of NMDC itself or the reliability of NMDC export price as a 
benchmark compared to the export price from Australia and Brazil. The Section 129 Determination 
effectively establ ishes that it is the standard methodology of the United States to reject all prices 
pertaining to government related entities. The USDOC has ignored the observation of the Appellate 
Body that whether a price may be relied upon for benchmarking purposes und er Article 14(d) is not 
a function of its source  but, rather, whether it is a market -determined price reflective of prevailing 
market conditions.  
 
31. The observations regarding export restrictions on iron ore was noted for the first time by the 
USDOC in the final Section 129 Determination. The USDOC has failed to disclose this "essential fact" 
before the final determination to allow all the interested parties to defend their interest in accordance 
with Article 12.8 of the SCM Agreement. There is no eviden ce presented by the USDOC that directly 
leads to the conclusion that NMDC export prices were "set with the GOI policy considerations".  
 
32. The Appellate Body had categorically noted that rejection of prices of government related 
entities in determining p roper benchmark simply because governments may set prices in pursuit of 
public policy objectives is not permissible under Article 14(d). The record evidence indicates that the 
actual price negotiations for NMDC are carried out by a "Committee of Directors"  and not the general 
Board of Directors. No evidence has been cited to suggest that this "Committee of Directors" 
comprises only of GOI appointed board members.  
 
VII. Inconsistency of continued imposition of countervailing duty on the SDF program 
with Arti cle 14(b) of the SCM Agreement  
 
33. The loans obtained from the SDF have been included as an alleged subsidy program since the 
original investigation by the United States. The United States found that the loans under the SDF 
program confer a benefit to th e extent that the interest paid under the program was less than what 
would have been charged on a comparable commercial loan. The United States adopted the long -
term loan interest rate and PLR published by the RBI in determining the benchmark interest rate  
while calculating the alleged benefit received by participating steel producers under the SDF 
program.  
 
34. The Appellate Body observed that failing to take into account a cost that potentially alters a 
commercial actor's valuation of a loan simply becau se it does not relate to interest or repayment 
terms appears unduly artificial and contrary to the requirements of Article 14(b). The Appellate Body 
concluded that the Panel improperly excluded consideration of a borrower's costs in assessing the 
cost of a  loan program to the recipient for the purposes of benchmark analysis.  
 
35. In its Section 129 Determination, the United States has not addressed the issue pertaining to 
SDF. The United States did not examine the entry costs associated with SDF loans and thus failed 
to comply with the recommendations of the DSB. Therefore, the United States has failed to comply 
with the recommendations and rulings of the DSB. In particular, the USDOC failed to reassess its 
determination and consider the Supreme Court of In dia's final and binding decision that the SDF 
program was not open to those who did not make investments into the fund in the first place.  
 
VIII.  Inconsistency of imposition of CVD against new subsidy programs with Articles 21.1 
and 21.2 of the SCM Agreem ent  
 
36. In the initiation notice through which the subject investigation was initiated, the United States  
covered only twelve alleged subsidy programs. New subsidy programs were included in 2004, 2006, 
2007 and 2008 ARs. The United States initiated the investigation against 4 programs in the 2004  AR, 
16 programs in the 2006 AR, 3 programs in the 2007 AR and 2  programs in the Section 129 WT/DS436/RW/Add.1  
 
- 32 - 
 
  proceedings without examining the "sufficiently close link" or "nexus" of these new subsidy programs 
to the subsidies that resulted in the imposition of original countervailing duty . In the Section 129 
Proceedings, the United S tates continues to countervail many of these new programs.  
 
37. Article 21.2 provides that authorities shall review  the need for the continued  imposition of the 
duty. No investigations under Article 21 can be initiated for the first time against a new sub sidy, 
which does not have a sufficiently close link or nexus with the subsidies countervailed in the original 
investigation. The United States has failed to examine whether such a sufficiently close link or nexus 
exists between the new subsidies countervai led in the 2004, 2006, 2007 and 2008 ARs and the 
subsidies that resulted in the imposition of original countervailing duty.  
 
38. If a simplistic test offered by the United States before the Appellate Body i.e. (i) the same 
Member; (ii) the same responding  companies (beneficiaries of the subsidies); and (iii) the same 
products,  is adopted for the purposes of examining sufficiently close nexus, it could result in 
redundancy of the balance between the right to impose countervailing duties and the obligations 
disciplining the use of countervailing measures.  
 
IX. Inconsistency of failure to provide notice of the required information, failure to seek 
relevant information and rejection of relevant information with Article 12.2 of the 
SCM Agreement.  
 
39. The USDO C has cited insufficiency of evidence as a reason to reject various arguments raised 
by India and for its refusal to comply with the recommendations and rulings of the DSB. In particular 
the USDOC has taken recourse to insufficiency of evidence with respec t to (i) Tata Steel's proprietary 
price quote; and  (ii) Meaning of "miniratna" categorization of NMDC.  
 
40. The USDOC was under an obligation to have sought out the required clarifications or 
information to properly investigate these aspects in a reasonable and objective manner in 
accordance with Article 12.2. However, unlike other Section 129 proceedings, the U SDOC chose not 
to issue any questionnaires or seek any other information from the GOI on these issues.  
 
X. Inconsistency of failure to disclose reliance on export restrictions with Article 12.8 
of the SCM Agreement  
 
41. Article 12.8 provides for disclosure of essential facts under consideration which form the basis 
for the decision  prior to the issuance of final determination. The USDOC supported its final 
determination to reject NMDC export price of iron ore with an addi tional fact about the existence of 
restrictions on export of iron ore put in place by the GOI. The USDOC disclosed, only in the final 
Section 129 Determination, that (a) there is diversification of the industrial sector in India because 
the RBI annual repo rt provides a diverse list of industrial and economic sectors; and (b) NMDC 
provided iron ore for three years period i.e. 2004, 2006 and 2007; and (c) NMDC was established in 
the year 1958. There was no disclosure concerning the aforementioned facts in the  preliminary 
determination or in any other document issued prior to the final determination in Section 129 
proceedings.  
 
42. A fact that forms the basis of the decision to reject a particular benchmark price proposed by 
the interested parties is an essent ial fact . Export restrictions on iron ore was relied upon by the 
USDOC to exclude NMDC export price as benchmark. Diversification of industrial sector in India and 
the period for which sale of high -grade iron ore by NMDC was operational are factors conside red by 
the USDOC while determining de facto  specificity. Accordingly, they were among the essential  facts 
that formed the basis of the decision by the USDOC that the "provision of iron ore by NMDC" program 
is de facto  specific.  
 
43. The only disclosure of essential facts by the USDOC, prior to the issuance of final 
determination, was the preliminary determination. The GOI filed a case brief containing arguments, 
rebuttals in response to the preliminary determination. However, the GOI did not and could not 
provide any comments or additional information regarding the afore mentioned three factors 
because the USDOC did not disclose these facts at all in the preliminary determination. The USDOC 
should have informed the interested parties about its reliance on th ese facts prior to the issuance of 
final determination. The USDOC should also have provided sufficient time to the interested parties 
to respond to its disclosure of this fact before issuing the final determination.  WT/DS436/RW/Add.1  
 
- 33 - 
 
  XI. Inconsistency of the USDOC's unilat eral decision to terminate the countervailing 
rate agreed between JSW Steel Ltd. and the USDOC and between Tata Steel and the 
USDOC with Article 19.3 of the SCM Agreement  
 
44. The USDOC published its final results for levying countervailing duty of 577.28 percent on 
exports made by Tata Steel in the 2008 AR (POR - 1st January, 2008 to 31st December, 2008). 
Tata Steel challenged the USDOC decision in appeal before the CIT. During the court proceedings, 
Tata Steel and the USDOC entered into a settlement agree ment wherein the USDOC agreed to levy 
countervailing duty of 102.74 % after amending the final results of 2008 AR with respect to 
Tata Steel (Tata Amended Final Results). However, pursuant to the final determinations in 
Section  129 proceedings, the USDOC h as revised this countervailing duty rate to 140.18%.  
 
45. For JSW Steel Ltd., the USDOC imposed countervailing duty of 484.41% vide final 
determination in the 2006 AR (POR – 1st January 2006 to 31st January 2006). JSW Steel Ltd. 
challenged the USDOC decis ion before the CIT. During the Court proceedings. JSW Steel Ltd. and 
the USDOC entered into a settlement agreement wherein the USDOC agreed to levy duty of 76.88% 
after amending the final results of 2006 AR with respect to JSW Steel Ltd. (JSW Amended Final  
Results). However, pursuant to the final determination in Section 129 proceedings, the USDOC has 
revised this countervailing duty rate to 215.54%.  
 
46. Article 19.3 of the SCM Agreement provides  that countervailing duties be levied in the 
"appropriate amounts  in each case". "Appropriate amounts" of countervailing duty has been 
interpreted to mean, in accordance with its ordinary meaning, the amount of countervailing duty 
which is "proper", "fitti ng" and "specially suitable". The Appellate Body observed that the term  
"appropriate amount" implies certain tailoring of the countervailing duty amounts according to 
circumstances.  
 
47. In the circumstances of the present case i.e. where two countervailin g duty rates were 
allegedly applicable, the USDOC should have decided the "appropriate amount" of countervailing 
duty rate by carrying out proper comparison of the two different rates of duty, considering the 
breakdown and components of subsidization conta ined therein. The USDOC should have explained 
on the basis of facts and circumstances of this case, why the countervailing duty rate determined 
pursuant to Section 129 determination is the "appropriate amount" of countervailing duty vis -à-vis 
its own agree ment to apply a different countervailing duty rate pursuant to the Amended Final 
Results.  
 
EXECUTIVE SUMMARY OF THE SECOND WRITTEN SUBMISSION  
 
I. Inconsistency of 19 USC § 1677(7)(G)(i)(III) with Articles 15.1 to 15.5 of the 
SCM Agreement  
 
48. The United States expressly disagrees with the Appellate Body's finding in the original 
proceedings that Section 1677(7)(G)(i)(III) is "as such" inconsistent with Articles 15.1 to 15.5 of 
the SCM Agreement. India submits that in a compliance proceeding under Article 21.5 of the DSU, 
the Panel cannot re -examine or invalidate the findings of the Appellate Body. The United States 
claims that the interpretation of Section 1677(7)(G)(i)(III) was not an issue of law covered by the 
panel report or raised by the parties befor e the original panel and therefore was not properly before 
the Appellate Body. However, in the original proceedings, India's challenge covered 
Section  1677(7)(G) in entirety including all three sub -clauses, and was also reviewed by the Panel 
and Appellate Body.  
 
49. It may be noted observed that the Appellate Body inadvertently omitted to note clause "(i)" 
while mentioning sub -clause III of Section 1677(7)(G). This typographical error is also reflected in 
the Request for consultations and Request for estab lishment of the Panel by India. Notwithstanding 
the error while referring to the Section 1677(7)(G)(i)(III), India's request for the establishment of 
the Panel clearly notes the measure at issue and a brief summary of the legal basis for the complaint.  
 
50. It was in the DSB meeting on 22nd June 2016 i.e. two months after the expiration of the 
reasonable period of time, the United States, for the first time, stated that under US law, Commerce 
had discretion to decide the timing when it would self -initiate a n investigation. India submits that 
for the purposes of addressing "as such" inconsistencies, "commitment" expressed through internal 
exchanges of letters or through oral statements without any amendments to the law "as such" cannot WT/DS436/RW/Add.1  
 
- 34 - 
 
  be considered as a meas ure taken to comply with the recommendations and rulings of the DSB. 
Moreover, and the United States has not denied that cumulation of imports will take place if 
Section  1677(7)(G)(i)(III) is triggered.  
 
II. Inconsistency of the USITC's Section 129 Consistency Determination with 
Articles  15.1 to 15.5 of the SCM Agreement  
 
51. India submits that the injury assessment conducted by the USITC in the Section 129 
Consistency Determination is inconsistent with Article 15 of the SCM Agreement. India submits  that 
the "measure taken to comply" by the USITC, i.e., the Section 129 Consistency Determination is 
subject to review before this Panel. The claims pertaining to assessment by the USITC could not 
have been raised in the original Panel proceedings because Section 129 Consistency Determination 
relies on data that is starkly different from the data contained in the 2001 US Determination.  
 
52. India submits that the mere existence  of subsidized import volumes or price effect would not, 
by itself, be sufficien t to arrive at a conclusion of material injury in terms of Article 15 of the 
SCM Agreement. The emphasis throughout the text of Article 15.2 is on the significance of the 
increase in volume and price effect of such imports on the domestic like products. Th e USITC 
discarded the only data on record that measured the impact of the instances of price underselling, 
i.e., the COMPAS model on the grounds that it was one analytic tool and that it preferred to rely on 
the actual empirical data on the record. It is s ubmitted that the absence of such an assessment 
pertaining to the significance of price underselling extinguishes any possibility of an assessment 
pertaining to the "explanatory force" between the subsidized imports and the price effect determined 
to exist .  
 
53. India notes that the volume of the subsidized imports was limited in absolute terms and such 
subsidized imports only held 5.8% of the market share in relation to US demand in 2000. Further, 
India notes that the United States has not pointed out any  part of the USITC determination that 
draws a definitive correlation between the subsidized imports, and not just imports at large, and the 
injury parameters of the domestic industry.  
 
54. India also submits that no express non -attribution analysis is cont ained in the Section 129 
Consistency Determination of the United States. The USITC, determination is at odds with the 
decision of the United States to impose anti -dumping duties against Brazil, Japan & Russia as well 
as against the non -subject imports from  the six countries which were simultaneously subjected to 
trade remedial investigation. The United States admits that the plant closures were not co -related 
to the subsidized imports or caused by them. India submits that the existence of such inherent 
factors, that had caused shut down of parts of the domestic industry, should have formed part of 
the non -attribution assessment carried out by the USITC.  
 
III. Inconsistency of Public Body determination with Article 1.1(a)(1) of the 
SCM Agreement . 
 
55. India submits that the USDOC's revised findings on NMDC's conduct  being meaningfully 
controlled by the GOI is not supported by positive evidence and thereby, violates Article 1.1(a)(1) 
of the SCM Agreement. The USDOC failed to evaluate the relationship bet ween the NMDC and the 
GOI within the Indian legal order, and the extent to which the GOI in fact "exercised" meaningful 
control over the NMDC and over its conduct. Firstly, the parties agree that NMDC had 'miniratna' or 
'navaratna' status during the period  in question since this information was placed on record. India 
reiterates that the United States completely discarded the substantial evidence actually available on 
record that the companies with such status possess significant degree of autonomy from the  
Government, despite the Government being the majority shareholder.  
 
56. Secondly, the United States' determination and argument seems to be based on an 
assumption that engaging in mining amounts to 'governmental function' and such an assumption is 
misconc eived. While there is evidence on record  that minerals are indeed owned by the State 
Governments within India, there is insufficient evidence for the USDOC to conclude that mining of 
iron ore (or mining per se ) is a government function. In this regards Ind ia specifically invites the 
Panel's attention to 2004 AR Verification Report (Exhibit USA – 3) page 9 which corroborates India's 
position.  
 WT/DS436/RW/Add.1  
 
- 35 - 
 
  57. Thirdly, the USDOC itself acknowledges that at a minimum, the GOI is not involved in the 
selection of at least 4 (of 13) directors of NMDC. India submits that the uncontroverted evidence is 
that out of 13 Board of Directors, only 2 are appointed by the GOI and 7 are independent directors. 
Further, it is also an uncontroverted fact that throughout the investigation period, i.e. 2004 -2008 
ARs, NMDC was a listed company and therefore, was complying with Clause 49 of the Listing 
Agreement with Stock Exchanges. The Section 129 Determinations completely ignore the 
independence of directors. Other 4 directors are professio nals appointed as functional directors to 
look after production, technical, commercial and finance functions. The fact that Government may 
approve their nomination is irrelevant to the determination whether NMDC is a public body or not.  
 
58. Fourthly, ther e is no positive evidence on record cited by the USDOC as to the size of the 
"Committee of Directors" holding price negotiations, or its composition and in particular, no evidence 
has been cited to suggest that this "Committee of Directors" comprises only of GOI appointed board 
members. There is not even a shred of evidence that the government directions or policies have 
influenced the transactions or pricing of the products sold by NMDC.  
 
59. Lastly, India submits that existence of canalization and export  restriction are in no way 
relevant for determining NMDC to be a public body. Further, the fact that the Chairman of NMDC 
occupied another position in another governmental committee that recommended such an export 
restriction, does not necessarily imply th at the Board of Directors of NMDC had made any decisions 
on the same. India submits that had the NMDC been under meaningful control and as the USDOC 
argues that the export restriction was not a general measure, then there would have been no need 
for the ca nalization or such export restriction through a separate measure. The fact that such a 
policy was specifically introduced by the GOI to prevent export of high -grade iron ore, establishes 
that the GOI could not meaningfully control the conduct of NMDC and t hat NMDC was not performing 
any governmental function.   
 
IV. Inconsistencies of specificity determinations with Articles 2.1(c) and 2.4 of the 
SCM Agreement  
 
60. The United States merely offers ex-post facto rationalizations  for its determination regardin g 
Article  1.2 read with Article 2.1(c). The United States considered the extent of diversification of 
India's economy and the length of time the program has been in operation only with respect to 
provision of High -Grade Iron Ore by NMDC. India submits that  existence of NMDC since 1958 has 
no relationship to the length of time for which the program titled Mining Rights of Iron Ore or Mining 
of Coal has been in existence.  
 
61. The United States also relies on Dang Report and Hoda Report to argue that iron ore leases 
were limited to India's steel companies . In the Section 129 Determination the USDOC acknowledges 
that India grants Mining Rights of Iron Ore to Steel Companies as well as independent miners. 
Therefore, it is evident that the U nited States' submissions before this Panel and Section 129 
Determination contradict each other. Further,  The record evidence demonstrates the total number 
of iron ore mining licenses granted by GOI during 2006 which conclusively established that the grant  
of mining rights for iron ore was not restricted to just steel producers and that large numbers of 
leases for iron -ore mining were granted during the POR to various entities, including steelmakers 
and stand -alone miners. Further, the USDOC's assertion tha t [t]he numbers do not indicate the 
proportion of leases held by steel and mining companies  contradicts the facts on record.  
 
62. It is noteworthy that the United States' reliance on (i) Dang Report; (ii) Hoda Report; and (iii) 
Times of India  article  as well as its assertion that record evidence relied on by the USDOC 
demonstrates that iron ore leases were limited to India's steel companies were challenged by India 
in the original proceedings. The evidence was considered by the Panel and it co ncluded that the 
USDOC failed to determine the existence of the Captive Mining of Iron Ore Programme on the basis 
of accurate information, as required by Article 12.5. The United States reiterates different passages 
of the same evidence to reach the same c onclusions which were held to be insufficient by the Panel 
in original proceedings.  
 
V. Inconsistency of rejection of in -country price of iron ore as benchmark with the 
chapeau to Article 14 & Article 14(d) of the SCM Agreement  
 
63. The GOI emphasized on the following evidence and explanation during the Section 129 
proceedings, which was available on the record of the USDOC, to substantiate that the domestic WT/DS436/RW/Add.1  
 
- 36 - 
 
  price information was the actual transaction price – (i) names of at -least three entities are provi ded 
in the document; (ii) documentary evidence of close to 11 transactions in the name of these entities; 
(iii) such 11 entries specify the type of iron ore, the content of iron, and the terms of sale; (iv) prices 
were compiled by the association and were prevailing market prices in the relevant period; and (v) 
the document specifically states that these are prices of iron ore and not notional prices or price 
estimates. The USDOC has not responded to any of these claims made by the GOI in its Section 129 
Determination. Further, India submits that a careful review of the price information in the chart by 
an objective and unbiased investigating authority would have clearly revealed that not all the price 
information contained therein was provisional in nature.  India specifically notes that the information 
on record suggests that the prices reported in the Tex Report, which was used as a benchmark, were 
also not actual transaction prices. Further, the reasons cited by the United States before the 
compliance Pane l to reject the information, are not contained in the Section 129 Determination. 
Therefore, it amounts to an ex post facto  rationalization.  
 
64. The United States, before the original Panel, agreed that a Tier I price "could include" other 
types of transa ctions i.e., all market determined in -country price information other than "actual 
transactions, actual imports, or actual sales from competitively -run government auctions". The 
Appellate Body, after relying on the inclusive reading of the provision agreed  upon by the 
United  States, clearly foresaw the possibility of including "other types of transactions including 
government related prices" as Tier I benchmark. However, the USDOC rejected the plea of the GOI 
in Section  129 Determination to consider such a possibility and observed that the USDOC's 
"preference" is to compare the government price to market -determined price "stemming from actual 
transactions."  
 
65. The United States has claimed repeatedly in its FWS that in -country price information 
submitted by the GOI and Tata were not market determined. However, the USDOC has not 
determined in its Section 129 Determination based on positive evidence that the price information 
was not "market determined". Instead, the USDOC has relied solely on the regulatory  preference, 
contrary to its submissions before the Panel and Appellate Body, to determine that the price noted 
in Tex Report was the appropriate benchmark.  
 
66. India submits that the terms of sale are clearly indicated in the chart in the second column. It 
is clear from the names of the three entities listed in the second column that these entities are selling 
entities i.e. Mysore Minerals Ltd., SJ Harvi Mines,  and TATA. The absence of the name of buying 
entity can only imply that prices are not fixed vis -à-vis a particular buyer. Sale price, irrespective of 
the buyer, does not diminish its characterization as "market determined price" in terms of 
Article  14(d) of the SCM Agreement.  
 
67. India has claimed that the United States had wrongly rejected price information furnished by 
Tata for the purpose of benchmark determination. However, the United States has not explained 
why the price quote presented by Tata was not adopted as the benchmark for Tata itself for mining 
rights of iron ore program in the 2006 AR. 
 
VI. Inconsistency of exclusion of the NMDC export prices as benchmarks with the 
chapeau to Article 14 & Article 14(d) of the SCM Agreement  
 
68. India submits that as per the Appellate Body observation, the USDOC was required to examine 
NMDC export pri ces to Japan for the purpose of benchmark. It is clear that the government provider 
referenced in the observation of Appellate Body is NMDC. It is also clear that export price referenced 
in the above observation is export price of NMDC. However, the United  States simply denies the 
existence of the above findings of the Appellate Body in its FWS and also the obligation to examine 
NMDC export price for the purpose of benchmark determination. India submits that all the arguments 
put forth by the United States directly contradict the Appellate Body Report and thus cannot be 
accepted.  
 
69. The United States also claims that the USDOC considered multiple facts, including (i) GOI's 
ownership and control of both the NMDC and MMTC, (ii) GOI's extensive involvement in price setting 
in the NMDC, (iii) and GOI's export restrictions on iron ore. In its FWS, India has submitted in detail 
that reliance of the USDOC on the aforementioned reasons is both inadequate and incorrect. In 
response to India's claim, the United States has only stressed upon the verification report of the 
GOI's questionnaire resp onse in 2004 AR to support its determination regarding GOI's extensive 
involvement in price setting.  WT/DS436/RW/Add.1  
 
- 37 - 
 
  70. The record evidence indicates that the actual price negotiations for NMDC are carried out by 
a "Committee of Directors" and not the general Board of D irectors. The USDOC itself acknowledges 
that at a minimum, the GOI is not involved in the selection of at least 4 (of 13) directors of NMDC. 
There is no positive evidence on record cited by the USDOC to suggest that this "Committee of 
Directors" comprises only of GOI appointed board members. The USDOC fails to appreciate that 
"directors" referred by the NMDC official in the verification report are in fact "Committee of 
Directors." Even if the United States arguments is accepted in totality, it can only impl y that 
"government" was deciding the "export price of NMDC". It does not mean that NMDC export price 
were "not market determined". The NMDC official statement does not even remotely suggest that 
the government decided NMDC export price of iron ore based on  public policy considerations. The 
USDOC also does not explain on what basis it determined that "setting the export price of iron ore" 
is the "national policy" concerned and is the "activity" reviewed and monitored by the GOI. The 
MMTC official specificall y noted that all decisions are made for commercial reasons, otherwise they 
are held accountable, as there is an oversight process by their legislature and the Comptroller Auditor 
General, who is the chief vigilance commissioner. NMDC official specifically noted that Ministry of 
Steel does not play a role in setting the prices of iron ore and that "it is a commercially independent 
company." The USDOC specifically inquired as to "when the government would become involved in 
any decision made by their respecti ve boards". The MMTC official in response explained that the GOI 
involvement was in the decisions regarding investments beyond an allotted amount. The detailed 
explanation provided by the NMDC official and recorded by the USDOC in its verification report c learly 
demonstrates that NMDC export prices are "market determined." Further, notwithstanding the fact 
that export restriction on iron ore cannot be relied upon by the USDOC because it was not disclosed 
to the interested parties prior to the issuance of fi nal determination, India submits that the USDOC's 
reliance on export restriction is incorrect and inadequate. The 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 un viable as a benchmark. It is clear that there was no actual effect because of export 
restrictions as the total exported quantity never reached the threshold.  
 
71. In the 2004 AR, the USDOC adopted a world market price from the Tex Reports as benchmark 
for determining benefit. Such world market price from the Tex Reports contained export prices from 
India to Japan, as well as export prices from Australia and Brazil to Japan and Europe. The USDOC 
continued the same methodology for benchmark determination in the preliminary determination of 
the 2006 AR. However, in the final determination of the 2006 AR, the USDOC ignored the NMDC 
export price reported in the Tex Report.  The USDOC notes in the Section 129 Determination that 
the decision to exclude NMDC export prices is simply a matter of refining its approach consistent 
with its standard benchmark methodology even though no party had addressed the issue. India 
objected to the adequacy of this explanation in its FWS. India submits that mere use of the 
expression  "refinement of approach" in and of itself cannot be considered as adequate reasoning for 
coming to an entirely opposite decision in the 2006 AR. The USDOC has not based its explanation 
on any change in the evidence on record such as information indicating  the unreliability of NMDC 
price, additional information indicating appropriateness of other benchmark, etc.  
 
VII. Inconsistency of continued imposition of countervailing duty on the SDF program 
with Article 14(b) of the SCM Agreement  
 
72. India submits 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 
into account the costs incurred by such recipient in obtaining the loan . The United States cannot 
contend that even though the Appellate Body clearly held that the exclusion of cost incurred by the 
steel producers while determining the benefit is inconsistent with Article 14(b) of the 
SCM Agreement, there is no finding of the  Appellate Body on the issue of SDF program and the 
United  States is not required to implement the recommendation and ruling of the DSB emanating 
from such finding. India submits that the USDOC never considered the issue whether steel producers' 
own contri bution to the fund could be considered as costs for the purpose of determination of benefit 
under Article 14(b). The findings of the USDOC in 2006 AR determination clearly suggest that steel 
producers are voluntarily contributing funds derived from price i ncrease to the SDF and therefore it 
is a cost to such loan recipient steel producers.  
 
73. The United States also independently argues as to why there was no need for re -determination 
of benefit by the USDOC. The United States notes that the (i) GOI estab lished price increases that 
were to be added to steel products; (ii) Indian Supreme Court ruling is not relevant for characterizing 
the aspects of the law under WTO legal principles and it disagrees with the conclusion of the Supreme WT/DS436/RW/Add.1  
 
- 38 - 
 
  Court of India; (iii) price increase mandated by the GOI was not different from other types of 
involuntary taxes; (iv) India has not identified any other costs on record etc. India submits that the 
United States arguments amounts to ex-post facto  rationalizations to substantiat e that contributions 
made by the steel producers did not amount to "costs" incurred by these recipients and therefore 
cannot be taken into account. As already submitted, a Member is precluded from providing an 
ex post rationale to justify the investigating  authority's determination.    
 
VIII.  Inconsistency of imposition of CVD against new subsidy programs with Articles 21.1 
and 21.2 of the SCM Agreement  
 
74. The United States' concedes that India did ask for the Panel to find that the USDOC breached 
Article  21 by failing to examine properly each of the new subsidy allegations at issue. The Panel 
ruled that USDOC was entitled, under Articles  21.1 and 21.2 of the SCM  Agreement, to examine new 
subsidy allegations in the administrative reviews at issue . The Appe llate Body added an important 
caveat to the conclusion arrived at by the Panel that Article 21 requires an investigating authority 
to establish that there is a sufficiently close nexus between the subsidies that are the subject of the 
original investigatio n and the new subsidy allegations that the investigating authority proposes to 
examine as part of its administrative review . However, what India did not do, was allege which of 
the factors listed in Footnote 1256 of the Appellate Body Report were applicabl e in the case before 
the Appellate Body. In other words, the Appeal was limited in scope and India is not reagitating the 
same issue again. The core question before this Panel is whether the element challenged by India 
forms an integral part of the measure  taken to comply or are separable. India submits that when 
the quantum of benefits accruing to such a product is re -determined in Section 129 Proceedings, 
India cannot be precluded from challenging the new subsidies allegations in the 2004, 2006, 2007 
and 2008 administrative reviews.  
 
75. With regard to India's claims under Article 21 concerning the "new" subsidy programs in the 
Section 129 Determinations the arguments advanced by the United States are not alternative 
arguments, rather they are mutually ex clusive and contradictory to each other.  
 
76. The United States introduced, investigated and countervailed two completely new programs 
"Mining Rights of Iron Ore" and "Mining of Coal" in Section 129 proceedings which are distinct and 
broader than " Captive mining of iron ore" and "Captive Mining of Coal" which were countervailed in 
the 2006 AR. India submits that comparison of the specificity determinations with respect to these 
programs in the 2006 AR and Section 129 Proceedings is dispositive of th e issue at hand. Further, 
with regard to Mining of Coal, the USDOC relied on different facts and legislations which were never 
considered in the 2006 AR. Further, in Section 129 Determinations, the USDOC acknowledge that it 
investigated different programs India submits that the record is totally silent and not even once the 
USDOC has mentioned that the "Mining Rights of Iron Ore" and "Mining of Coal" introduced, 
investigated and countervailed in Section 129 Proceedings have sufficiently close link or simila rity 
with the subsidies that were the subject of the original investigation. India has already submitted 
that if the simplistic test offered by the United States before the Appellate Body i.e. (i) the same 
Member; (ii) the same responding companies (benefi ciaries of the subsidies); and (iii) the same 
products,  is adopted for the purposes of examining sufficiently close nexus, it could result in 
redundancy of the balance between the right to impose countervailing duties and the obligations 
disciplining the u se of countervailing measures. It would also lead to an unfettered right to the 
investigating authorities which is precisely the situation which was highlighted by the Appellate Body 
in its Report. India submits that the granting authority for (i) the subs idy programs that were the 
subject of the original investigation (10 Programs with different granting authority within and outside 
the Government of India); and (ii) the new subsidies introduced, investigated and countervailed in 
Section 129 Proceedings (n amely Ministry of Mines), are different. Further, the nature of the 10 
subsidy programs that were subject of the original investigation was also different from "Mining 
Rights of Iron Ore" and "Mining of Coal".  
 
IX. Inconsistency of failure to provide noti ce of the required information, failure to seek 
relevant information and rejection of relevant information with Article 12.1 of the 
SCM Agreement  
 
77. It is evident that Article 12 applies to all the reviews conducted under Article 21 and its 
application i s not limited to sunset reviews. It is uncontested that administrative reviews are 
governed under Article 21 of the SCM Agreement. As a necessary corollary, Section 129 Proceedings WT/DS436/RW/Add.1  
 
- 39 - 
 
  pertaining to such ARs would also be governed under Article 21 of the SCM A greement. Accordingly, 
Article 12.1 would be applicable to both the ARs in question and the Section 129 Proceedings.  
 
78. It is evident from the original Panel proceedings, Appellate Body proceedings, the Section 129 
Proceedings and above submissions that  USDOC reached multiple factually erroneous conclusions 
on (i) Tata Steel's proprietary price quote; and (ii) meaning of "miniratna" categorization of NMDC 
which could not have been reached by an unbiased and objective investigating authority and which 
the United States had sought to correct in subsequent submissions at each stage. India submits that 
its assertions on the two key pieces of evidence remain unchallenged throughout the course of 
original proceedings and Section 129 proceedings. India has alrea dy established above that an 
unbiased and objective investigating authority could not have rejected (i) Tata Steel's proprietary 
price quote; and (ii) meaning of "miniratna" categorization of NMDC. Therefore, the United States 
has acted in a manner inconsi stent with Articles 12.1 of the SCM Agreement due to its failure to 
provide notice of the required information, failure to seek relevant information from India and 
rejection of relevant information voluntarily provided by India . 
 
X. Inconsistency with Arti cle 12.8 of the SCM Agreement  
 
79. It is clear that the disclosure under Article 12.8 concerns the disclosure of facts in the course 
of the same investigation. For example, Article 21.4 of the SCM Agreement provides that the 
provisions of Article 12 shall  apply to any review carried out under this Article. Thus, the Authority 
is required to provide disclosure of essential facts before a final determination is made in a review 
proceeding separately as distinguished from the original investigation. Similarly , proceedings under 
Section 129 is a separate investigation and therefore requirement under Article 12.8 of the 
SCM Agreement is required to be complied as part of this separate investigation proceeding.  
 
80. The United States admits that the essential fac t at issue is "export restrictions on iron ore". 
India submits that mere reference to the 2004 AR verification report in the Section 129 preliminary 
determination cannot be equated to disclosure of the essential facts under consideration, which are 
contain ed in such verification report. There was no disclosure of fact regarding export restriction on 
iron ore in the Section 129 preliminary determination. Secondly, the aforementioned factual 
observations in the Section 129 preliminary determination were discl osed in the context of deciding 
whether NMDC is a public body in terms of Article 1 of the SCM Agreement. There was not even a 
reference to the 2004 AR verification report in the Section 129 preliminary determination while 
deciding the issue of exclusion o f NMDC export price.  
 
XI. Inconsistency of the USDOC's unilateral decision to terminate the countervailing 
rate agreed between JSW Steel Ltd. and the USDOC and between Tata Steel and the 
USDOC with Article 19.3 of the SCM Agreement  
 
81. The United States objects to India's claim that its unilateral decision to terminate the 
countervailing duty rate agreed between JSW Steel Ltd. and the USDOC and between Tata Steel and 
the USDOC is inconsistent with Article 19.3 of the SCM Agreement.  
 
82. Contrary to the United States' submissions, there is nothing in the plain text of Article 19.3 to 
suggest that the word "appropriate amount" is with reference to the source of imports or is confined 
to the application of countervailing duty on a non -discriminatory basis. The Appellate Body in 
US - Anti-dumping and Countervailing Duties  (China)  has already settled the meaning of 
"appropriate amounts in each case" from the dictionary definitions. The Appellate Body clearly 
observed that the term  "appropriate amount" implies certain tailoring of the countervailing duty 
amounts according to circumstances.  
 
83. India stresses on the observation of the Appellate Body that the term appropriate means 
"something that must be assessed by reference or in relation to s omething else; they suggest some 
core norm —"proper", "fitting", "suitable" —and at the same time adaptation to particular 
circumstances." In the present case, the United States had two amounts of countervailing duties 
before it and if the USDOC were to appl y the countervailing duty rate determined in the Section 129 
proceedings it should have provided an adequate and reasoned explanation based on positive 
evidence as to why the rate prescribed under Section 129 proceedings is an "appropriate amount" 
of count ervailing duty rate.  
 WT/DS436/RW/Add.1  
 
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  84. The United States also claims that application of countervailing duty rate is appropriate 
because it correlates to subsidy programs in the underlying proceedings and there is a dramatic 
decline in the countervailing duty rates for  JSW and Tata as compared to original proceedings. 
According to the United States, reliance on the settled rates, i.e., rates that were applicable pursuant 
to the Amended Final Results in lieu of rates calculated in conformity with the DSB ruling and 
recom mendation would not have been proper because settled rates are not based upon specific 
margin and bear no relation to an analysis of individual subsidy. These reasons and explanations are 
inadequate as it does not fully disclose the actual basis of the set tled rates. In any case, these 
explanations by the United States are not incorporated in the Section 129 determination and 
amounts to an ex post facto  rationalization. A Member is precluded from providing an ex post 
rationale to justify the investigating a uthority's determination. It is settled that an investigating 
authority's determinations must be evaluated in light of the rationale provided contemporaneously 
by that investigating authority.  
 
85. To conclude, India submits that if the application of a h igher countervailing duty rate is allowed 
to be sustained instead of lower rates negotiated between the parties, it would create conflict 
between the domestic judicial review under Article 23 of the SCM Agreement and WTO dispute 
settlement proceedings unde r Article 30 of the SCM Agreement. Article 23 of the SCM Agreement is 
not subject to Article 30 of the SCM Agreement. SCM Agreement allows for invocation of Article 30 
even when the affected member country has opted for remedy pursuant to Article 23. Howev er, the 
United States approach would be able to effectively prevent affected member countries from 
invoking Article 30 of the SCM Agreement whenever they have invoked judicial review within the 
United States legal system pursuant to Article 23 of the SCM A greement.  
 
86. India submits that the settled rates between the USDOC and the exporters concerned reflected 
lower subsidy amounts determined by the USDOC, though the USDOC did not disclose the basis for 
such subsidy amounts so determined by it. As a result  of the Section 129 proceedings, the changes 
shall be made to such lower subsidy amounts determined and applied by them and not the original 
subsidy amounts determined by them. The USDOC has not provided any explanation as to why (a) 
the lower subsidy amou nt determined by it shall be ignored and (b) it went back to the initial subsidy 
amount. Such an unbridled discretion poses a serious systemic flaw and shall not be permitted.  
 
EXECUTIVE SUMMARY OF THE OPENING STATEMENT  
 
I. 'As such' claim against 19 USC Section 1677(G)(7)(i)(III).  
 
87. The United States has not amended or repealed Section 1677(7)(G)(i)(III) pursuant to the 
decision of the Appellate Body. This omission of the United States clearly means that it has not met 
its obligations to implement the  recommendations and rulings of the DSB. According to the 
United  States, Section 1677(7)(G)(i)(III) is not inconsistent with Article 15 of the SCM Agreement 
because the United States Department of Commerce (USDOC) has 'discretion' to decide the timing 
when  it would self -initiate an investigation and the USDOC has 'confirmed its commitment' to 
exercise its discretion in a manner that would be consistent with the United States obligation under 
the SCM  Agreement. India submits that oral statements and exchange s of letters do not have any 
bearing on the United States law and do not form part of the anti -dumping and countervailing duty 
laws notified by the United States to the WTO. Further, such oral statements were made after the 
expiry of reasonable period of t ime. In any case, the text of Section 1677(7)(G)(i)(III) does not vest 
any such discretion. The United States does not explain how the USDOC will use its discretion to 
avoid a situation in which the USDOC has already self -initiated a countervailing duty in vestigation 
and a petition is filed for initiation of anti -dumping investigation later on the same day or vice versa.  
 
II. Determination of material injury by the USITC.  
 
88. The USITC in its Section 129 Determination has determined that subsidized imports  were 
causing material injury to the domestic industry in the United States. India challenges this 
assessment of the USITC with respect to examination of (i) the price effect of the alleged subsidized 
imports from countries subject to CVD investigations; ( ii) state of the domestic industry and the 
alleged injury suffered by them; and (iii) causality between the alleged subsidized imports and the 
state of the domestic industry.  
 
89. The analysis by the USITC only covered instances of price undercutting/under selling. The 
USITC failed to consider the significance of the magnitude of underselling in each of these instances. WT/DS436/RW/Add.1  
 
- 41 - 
 
  Further, the USITC's assessment of the state of the domestic industry falls short of the obligation to 
ensure an 'objective examination' bas ed on 'positive evidence'. Finally, with respect to the 
assessment of causality, India submits that the USITC was required to assess the injury suffered by 
the United States' domestic industry because of the insignificant volume and price effect of the 
subsidized imports. Further, the USITC was required not to attribute the impact of other factors, 
such as the volumes and prices of non -subsidized imports, contraction in demand or changes in the 
patterns of consumption, trade restrictive practices of and com petition between the foreign and 
domestic producers, developments in technology and the export performance, productivity of the 
domestic industry as well as plant closures of the domestic industry owing to inherent factors. 
However, the Section 129 Determi nation is silent on these aspects. Specifically, with respect to the 
plant closures, India notes that the United States' submission establishes that the plant closures 
were not co -related to the subsidized imports or caused by them. India, therefore, submi ts that the 
USITC's injury assessment is flawed and inconsistent with the provisions contained in Article 15 of 
the SCM Agreement.  
 
III. Public body determination  with respect to NMDC.  
 
90. The core question before the Appellate Body was the test proposed by the United States that 
a public body may also include an entity controlled by the government … such that the government 
may use the entity's resources as its own . The Appellate Body expre ssly observed that such a 
terminology is difficult to reconcile with that used by the Appellate Body in US – Anti-Dumping and 
Countervailing Duties (China) . However, it also observed that such a fact may certainly be relevant 
evidence for the purposes of d etermining whether a particular entity constitutes a public body. 
Before the compliance Panel, the United States proposes a completely new test i.e. the United States 
does not argue or establish Government of India's ability to use NMDC's resources as its own for 
which no evidence exists, rather it relies on NMDC's alleged ability to transfer government's 
resources. India submits that pursuant to Article 21.5, the Panel cannot modify or alter the legal 
test proposed in the Appellate Body Report adopted by t he DSB. India also submits that if the test 
proposed by the United States is accepted, every licensee for every economic resource could be 
considered as a public body, which will lead to incongruous results.  
 
91. The United States fails to ascribe any mea ning to the term administrative control, it continues 
to rely on this term to treat NMDC as a public body. It also relies on selective extracts of 2004 AR 
Verification Report to substantiate its pre -determined conclusions, rather than the explicit 
statemen ts made by GOI and officials of NMDC regarding the (i) composition of directors; (ii) 
enhanced autonomy of NMDC; and (iii) pricing mechanism contained in the very same Report, which 
till date have not been rebutted by contrary evidence. As to the aspect of  NMDC being a governmental 
authority performing governmental functions, effectively, the United States seeks a ruling that the 
activity of mining is a 'governmental function' simply because mineral resources are owned by the 
Government of India.  
 
IV. Rejection of in -country benchmarks.  
 
92. The USDOC in its Section 129 Determination concluded that in -country price information 
reported by the Mine Owners Association  was not suitable as benchmark prices ignoring (a) the 
actual transactions prices for tw o financial years - April 2004 to March 2005 and April 2005 to 
March  2006 contained therein; (b) Other associated  details such as the name of mines or entities 
from which the iron ore was obtained, terms of sale, Fe content of iron ore and destination of t he 
iron ore, etc. and without recording any reasons for rejection.  
 
93. In any case, provisional in -country price can constitute as Tier I benchmark under the 
United  States law. The Appellate Body observed, and the United States specifically agreed that e ven 
though preference is given to actual transactions between private parties, actual imports, actual 
sales from competitively run government auctions, Tier I benchmark under 19 CFR 351.511(a)(2)(i) 
'could include' other types of transactions as well.  The USDOC has also failed to note that the Tex 
Report price chart is labelled as 'Price Negotiations' and therefore were also not actual transaction 
prices.  
 
V. Rejection of export price of NMDC as a benchmark  
 
94. The USDOC, in the final determination in the 2006 AR  excluded  the NMDC export price 
reported in the Tex Report because it observed that the NMDC export price pertain to the very WT/DS436/RW/Add.1  
 
- 42 - 
 
  government provider of the goods. Such export prices were not excluded in the final determination 
in the 2004 AR and the preliminary determination in the 2006 AR. Despite a categorical finding and 
disagreement of the Appellate Body with the reasoning given by the USDOC in the 2006 AR that 
'price of the very government provider of the goods would not normal ly be used for comparison 
purposes under Tier I or Tier II', the USDOC has used the same reasoning and conclusions in its 
Section 129 determination. The assessment of the USDOC ignores the fact that export price of NMDC 
to Japan is not the 'financial contr ibution at issue' . Further, instead of relying on the nature of price 
information, its characteristics, associated details or any other form of positive evidence 
distinguishing NMDC export price from the export price from Australia and Brazil, the USDOC ha s 
once again adopted a formulaic  approach in which prices charged by the government entity in 
question is required to be excluded for benchmark determination.  
 
95. In the Section 129 Determination, the USDOC has stated an additional reason that there were 
restrictions on iron ore. This reason of the USDOC finds mention for the first time in the final 
Section  129 determination. Since no disclosure was made of this 'essential fact' in accordance with 
Article 12.8 of the SCM Agreement prior to the issuance of final determination, reliance on the same 
cannot be permitted for justifying the USDOC decision.   
 
96. Further, Section 129 Determination ignores the fact on record that there was a restriction on 
exports of iron ore only if it exceeded 6.8 million tonnes  and that annual exports during the last 10 
years was never more than 4.0 -5.0 million tonnes. Thus, de jure export restriction on iron ore was 
irrelevant because in fact the actual exports were far below the prescribed threshold. The USDOC 
also ignored oth er facts on record such as absence of restriction on iron ore with Fe content 64% or 
less and that such restriction was not on iron ore generally but against the iron ore obtained from a 
particular  (Bailadila) mine. Further, the USDOC has not demonstrated as to how such export 
restriction influenced the price of exports of iron ore so as to make it unviable as a benchmark.  
 
97. Therefore, the conclusions reached by the investigating authority are not reasoned and 
adequate, lacks critical examination, and ar e not based on information contained in the record.  
 
VI. Revision of the countervailing duty rate assigned to JSW Steel Ltd. and Tata Steel.  
 
98. Countervailing duty rates of 102.74% and 76.88% were applicable for Tata Steel and 
HSW Steel Ltd. respectivel y pursuant to the settlement agreement entered into between the USDOC 
and these companies during the respective proceedings before the Court of International Trade. 
Pursuant to the Section 129 proceedings, the USDOC has revised this countervailing duty rat e to 
215.54% for JSW Steel and to 140.18% for Tata Steel. The USDOC fails to disclose the breakup of 
individual subsidy programs of the countervailing duty rates determined in the settlement 
agreement  qua the Section 129 determinations.   
 
99. Article 19.3  of the SCM Agreement requires that the countervailing duty rate should be levied 
in the 'appropriate amount' in each case. The USDOC should have decided the 'appropriate amount' 
of countervailing duty rate in this case by starting from the rate applied pu rsuant to the settlement 
agreement. The USDOC should have then explained how it arrived at the revised rates.  
 
VII. New subsidy programs in the Section 129 Determinations.  
 
100. The United States argues that the two programs discussed in Section 129 Dete rminations 
were re -evaluation of the previously considered programmes and therefore, USDOC had no 
obligation to examine a sufficient link or nexus. If the said argument is assumed to be correct, i.e. 
the 'mining rights of iron ore' programme is the same as  the 'captive mining of iron ore' programme 
covered in the original investigation, the United States forgets that in the original proceeding, 
pursuant to a claim under Article 12.5, on an extensive examination of all the evidence, the Panel 
held that the U nited States did not have a sufficient basis to properly determine the existence of the 
captive mining of iron ore programme. The United States examined the same evidence reviewed by 
the Panel i.e. Hoda Report, Dang Report and the newspaper reports and has  countervailed the 
'mining rights of iron ore' programme. If the programme remained the same, at the very least, the 
United States was precluded from countervailing the Mining Rights for Iron Ore programme in the 
absence of any additional evidence.  
 
101. With respect to mining of coal, the entire basis has changed from the original to the 
Section  129 proceedings. The legislation relied upon to establish existence of the alleged programme WT/DS436/RW/Add.1  
 
- 43 - 
 
  was the Nationalisation Act of 1973 in the original investigation. On the contrary, the United States 
relies on MMDR Act of 1957 and the Bihar Land Reform Act of 1950 in the Section 129 proceedings. 
Secondly, the specificity determination has also changed from de jure to de facto specificity. 
Therefore, on its face, the prog ramme investigated by the United States is not the same as originally 
examined in 2006 AR. Accordingly, the United States was mandated to examine close link or nexus 
of the alleged new subsidies with the subsidies investigated in the original proceedings. If the 
simplistic test offered by the United States i.e. (i) the same Member; (ii) the same responding 
companies (beneficiaries of the subsidies); and (iii) the same products,  is adopted for the purposes 
of examining sufficiently close nexus, it would resu lt in redundancy of the test itself.  
 WT/DS436/RW/Add.1  
 
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  ANNEX B -2 
INTEGRATED EXECUTIVE  SUMMARY OF THE ARGU MENTS OF THE UNITED STATES OF AMERICA  
EXECUTIVE SUMMARY OF THE U.S. FIRST WRITTEN SUBMISSION  
I. THE UNITED STATES HAS COMPLIED WITH THE DSB 'S RECOMMENDATIONS AND 
RULINGS AS TO 19 USC 1677(7)(G)(i)(III)  
 
1. India asserts that the United States has failed to implement the DSB 's recommendations with 
respect to the Appellate Body 's "as such" finding in relation to 19 USC §1677(7)(G)(i)(III). India 
erroneously argues that the United States needed to either remove or amend the statute to come 
into compliance  
2. The Appellate Body 's "as such" finding as to Section 1677(7)(G)(i)(III) was beyond the scope 
of its authority under DSU Article 17.6 as it was not an issue covered in the panel report and was 
not an issue before the Appellate Body on appeal. As such, this finding does not constitute a valid 
basis for a DSB recommendation. Accordingly, this compliance Panel has no obligation to consider 
whether th e United States has implemented such a finding that falls outside the scope of the DSU.  
3. Section 1677(7)(G)(i)(III) has  never been used because of the discretionary element in the 
statute that was not discussed in the Appellate Body 's findings. Under the  statute, the administering 
authority charged with initiation, the USDOC, has discretion as to the timing of a self -initiated 
investigation. This discretion is not constrained. If the USDOC does not self -initiate an investigation 
on the same day a petition  is filed by an industry, the statute will never be triggered.  
4. There is no practice to discontinue as to Section 1677(7)(G)(i)(III). The United States may 
exercise its discretion to avoid creating the situation identified as WTO -inconsistent. Where a 
Member may apply a measure in a WTO -consistent manner, there is no basis to find that the Member 
has through that measure already  breached its WTO obligations because of the potential for a future  
WTO-inconsistent application. Instead, it would only be if t he Member chooses to act in a WTO -
inconsistent manner in a particular circumstance that WTO -inconsistent action would be taken and 
in which a WTO breach would arise.  And significantly, the USDOC has confirmed its commitment to 
exercise its discretion conce rning when to self -initiate an investigation in such a way as not to create 
the situation of concern to the Appellate Body.   
II. THE COMMISSION'S INJURY DETERMINATION IS CONSISTENT WITH U.S. WTO 
OBLIGATIONS  
 
5. India contends that the United States acted inconsistently with Articles 15.1, 15.2, 15.4, and 
15.5 of the SCM Agreement and Article VI of the GATT 1994.  
 
6. India is precluded from making several of the claims. First, as to India 's claims of inconsistency 
under SCM Agreement Article 15.4, the unde rlying facts and findings relevant to that claim did not 
change from the United States International Trade Commission 's ("Commission") original 2001 
determination to its Section 129 determination. Likewise, certain other arguments that India makes 
in its A rticle 21.5 submission are based wholly on methodologies and factual findings that originated 
in the original USITC determination: India 's challenge to the data and methodology used by the 
Commission for the purposes of its price effects analysis; India 's challenges to the Commission 's 
exercise of its discretion not to rely on the results of the COMPAS model; and India 's claim under 
Articles 15.1 and 15.5 that the Commission failed to consider factory closures in its non -attribution 
analysis.  
 
7. Moreover,  India's claims are based on a selective and incomplete reading of the Commission 
determination. India disregards the Commission's detailed analysis of the conditions of competition 
relevant to the hot -rolled steel market, and the Commission's analysis tha t underselling by 
subsidized imports resulted in a significant impact on domestic prices.  Further, India overlooks the 
Commission's explanation of why subject imports had a significant impact on the domestic industry, 
notwithstanding some positive trends, and its examination of factors other than subject imports that WT/DS436/RW/Add.1  
 
- 45 - 
 
  injured the domestic industry to ensure that such other factors were not attributed to subsidized 
imports.  
 
8. In each instance, India does not attempt to examine the conclusions reached by the  
Commission, but rather ignores the Commission 's analysis and, instead, focuses on other evidence. 
When judged against the Commission 's actual analysis, India 's claims do not withstand scrutiny, and 
fail to establish that the Commission 's determination is inconsistent with any of the cited provisions.  
 
9. The Commission 's underselling analysis provided "explanatory force" for the impact of subject 
import pricing on domestic prices and constituted an objective examination consistent with 
Articles  15.1 and 1 5.2 of the SCM Agreement. India has also failed to establish that the Commission 's 
analysis of the impact of subject imports was inconsistent with Articles 15.1 and 15.4 of the 
SCM Agreement. Moreover, the Commission 's examination of other known factors ca using injury 
was consistent with Articles 15.1 and 15.5 of the SCM Agreement.  
III. INDIA'S CLAIM UNDER ARTICLE 1.1(A)(1) LACKS MERIT  
 
10. India contests the USDOC 's Section 129 Determinations concerning public body. However, 
India's arguments lack merit because the USDOC 's explanations of its findings based on the record 
evidence are reasoned and adequate, such that an objective and unbiased investigating authority 
could have found the NMDC to be a public body.  
 
11. In the Section 129 Determinations , the USDOC reexamined the record evidence in the 
underlying proceedings and conducted additional analysis. The USDOC evaluated the core features 
of the NMDC and its relationship with the GOI within the country 's legal order. The USDOC explained 
that the G OI owned 98.38 percent of the NMDC. Beyond this majority ownership, the USDOC found 
that the record demonstrated that the NMDC was governed by the GOI 's Ministry of Steel. The 
USDOC also explained that the NMDC was treated as a state -owned, public -sector c ompany by the 
GOI, and the record evidence demonstrated that the GOI was significantly involved in NMDC 's day -
to-day operations.  
 
12. The USDOC then evaluated "whether the functions or conduct [of the NMDC] are of a kind 
that are ordinarily classified as g overnmental in the legal order of [India]". The USDOC concluded 
that because the GOI owned all of the mineral resources in India, "it is a function of the government 
of India to arrange for the exploitation of public assets, in this case iron ore" . The USD OC then 
established that the NMDC exploited public resources on behalf of the GOI, and is thus vested with 
governmental authority.  
13. The USDOC also evaluated "the extent to which the GOI in fact 'exercised ' meaningful control 
over the NMDC and over its conduct." The USDOC considered the GOI 's majority ownership of the 
NMDC and the fact that the NMDC was governed by the Ministry of Steel, as well as the fact that the 
NMDC was a strategic company which was monitored and reviewed by the government. The USDO C 
explained that the GOI controlled the NMDC through the NMDC 's board of directors. The USDOC also 
considered the fact that the "NMDC is under administrative control of the Ministry of Steel," as well 
as record evidence establishing that the GOI was also h eavily involved in the NMDC 's day -to-day 
operations. Furthermore, the USDOC considered the fact that the GOI, through its "canalization" 
policy, exercised control over the supply and demand of high grade iron ore that the NMDC sold in 
the Indian and global  market.    
14. India argues that positive evidence does not support the determination that the GOI exercised 
meaningful control over the NMDC. India complains that the actual price negotiations are carried out 
by a "Committee of Directors," and not the ge neral Board of Directors. However, as the USDOC 
explained, the report from the on -site verification of the GOI during the 2004 administrative review 
reflected that NMDC 's directors – not its staff members – were responsible for the negotiation of 
price and  quantity with customers. Record evidence also indicated that the NMDC 's chairman, who 
is selected by the GOI, must approve such negotiations before the contract is submitted to the Board 
for ratification. Thus, irrespective of whether it was the Committee  of Directors or Board of Directors 
negotiating the contract, the record is clear that the contract had to be approved by the Chairman 
and submitted to the Board of Directors for ratification. Furthermore, contrary to India 's argument, 
the NMDC 's Board of Directors did not serve in an independent capacity.  
 WT/DS436/RW/Add.1  
 
- 46 - 
 
  15. India also argues, without citing to any support, that the export restriction on iron ore was a 
general measure applicable to all iron ore exports and not just the NMDC. However, the record 
evidence demonstrates otherwise. The USDOC considered the record evidence establishing that the 
Bailadila mines were the only mines with export restrictions because they contained high grade iron 
ore, and that the NMDC was the sole company that mined in Bailadila. Furthermore, the USDOC 
explained that the GOI designated the MMTC, a GOI -owned and controlled company, as the sole 
exporter of NMDC 's high grade iron ore. The Ministry of Commerce further monitored the export of 
high grade iron ore through the MMTC to ensu re that the NMDC 's Bailadila mines did not exceed the 
caps. India 's argument also fails because the USDOC did not need to demonstrate that the export 
restriction was only limited to the NMDC. Rather, the USDOC observed that the GOI 's restriction on 
the export of high grade iron ore was another means of the GOI 's control over the NMDC.  
 
16. India then complains that the USDOC failed to sufficiently investigate the NMDC 's "miniratna " 
status. In bringing its Article 1.1(a)(1) claim, India relies on a quote  from US – Antidumping and 
Countervailing Duties (China)  that investigating authorities have a duty to seek out relevant 
information. Although the Appellate Body made this general observation in the context of an 
Article  1.1(a)(1) claim, the Appellate Body  cited to US – Corrosion Resistant Steel Sunset Review  
and US – Wheat Gluten  as support. US – Corrosion Resistant Steel Sunset Review  involved 
Article  11.3 of the AD Agreement and an investigating authority 's role in a sunset review to include 
both investi gatory and adjudicatory aspects, and US – Wheat Gluten  involved an investigating 
authority 's duty under Article 3.1 of the Agreement on Safeguards . Thus, the text of Article 1.1(a)(1) 
does not itself impose an obligation on an investigating authority to se ek out additional information 
or clarification – rather, a Member may be found not to have satisfied Article 1.1(a)(1) if its findings 
on financial contribution (including public body) are not reasoned and adequate, in light of the 
record.  
17. India also erroneously brings forward and relies on evidence that was not on the record before 
the USDOC, specifically its citation to the DPE Guidelines, Chapter IX. This evidence has no bearing 
on the Panel 's review of USDOC 's Section 129 Determinations because it was not on the USDOC 's 
record. Therefore, India has failed to demonstrate that the USDOC 's public body determination in 
the Section 129 proceeding is inconsistent with Article 1.1(a)(1) of the SCM Agreement.  
 
IV. INDIA'S CLAIMS U NDER ARTICLES 2.1(C)  AND 2. 4 
 
18. India's claims that the USDOC 's findings of de facto specificity  are inconsistent with 
Articles  2.1(c) and 2.4 of the SCM Agreement lack merit. The USDOC explicitly took into account the 
diversification of economic activities in India and the length  of time the challenged programs have 
been in operation. The United States has implemented the DSB recommendations and rulings.  
19. In the context of the sale of high grade iron ore, India rests its claims on a purported failure 
by the USDOC to identify t his subsidy program. Because this claim was not raised in the original 
proceedings and consequently was not subject to findings in the underlying proceedings, it is outside 
the scope of this compliance proceeding. Furthermore, the evidence shows that the U SDOC in fact 
identified the sale of high grade iron ore as a program.  
20. India now claims that the United States has not identified that the sale of high grade iron ore 
by NMDC constitutes a subsidy program. India could have challenged this issue in the original 
proceeding, but opted not to do so. Members generally may not make claims in compliance 
proceedings that they could have pursued during the original proceedings, but opted not to. India 's 
claim is clearly outside the scope of this Article 21.5 com pliance proceeding.  
21. Additionally, India suggests that because the GOI 's provision of mining rights of iron ore is 
generally available, the program cannot be found to be de facto specific to certain enterprises within 
the meaning of Article 2 of the SCM Agreement. India's argument as to the mining rights of iron ore 
is unconv incing; it consists almost entirely of cherry -picked statements from the USDOC 's 
Section  129 Determination. India 's criticisms of the USDOC 's determination are unfounded and 
misrepresent both the USDOC 's analysis and the record evidence.  
 WT/DS436/RW/Add.1  
 
- 47 - 
 
  V. INDIA'S CHALL ENGE UNDER THE CHAPE AU OF ARTICLE 14 AND  ARTICLE 14(D) IS 
WITHOUT MERIT  
 
A. The USDOC's Decision To Not Use An In -Country Benchmark Is Consistent With 
The Chapeau Of Article 14 And Article 14(d) Of The SCM Agreement  
 
22. India claims that the USDOC failed  to adequately support its conclusion that the association 
chart and price quote were not suitable as an in -country benchmark. However, the USDOC was 
unable to rely on the association chart for benchmarking purposes because a close examination of 
the chart  revealed the prices as "provisional," and not actual transaction prices. The USDOC also 
explained that the association chart does not identify the basic terms of sale, such as the entities 
selling or buying the iron ore.  Regarding the price quote, the USD OC found that it was unclear 
whether the price was an actual transaction price or a price quote; and the price quote was propriety 
and contains data so limited that if it were used as a benchmark, the numbers could be reverse 
calculated by others, resultin g in an improper disclosure.  
23. India challenges the price quote and argues that the USDOC was not bound to accept claims 
of confidentiality without seeking further clarification or explanation pursuant to Article 12.4.2. India 
did not claim that the USDO C's failure to consider Tata 's price quote was inconsistent with 
Article  12.4 of the SCM Agreement in its panel request. Accordingly, the Panel cannot  consider such 
a claim by India now.  
24. India argues that Article 14(d) of the SCM Agreement does not require the use of actual 
transaction prices. However, the lack of actual transaction prices in the association chart and price 
quote was not the sole reason for the USDOC 's decision. Furthermore, to the extent that India argues 
that Article 14 requires  the use of data — such as offers for sale — not based on actual sales 
transactions, India 's legal position is baseless. In its submission, India highlights paragraph 4.176 
of the Appellate Body 's report. The context of the cited paragraph pertains to the App ellate Body 's 
discussion of whether the USDOC 's regulations exclude consideration of government prices other 
than those from competitively run government auctions, and did not relate to whether the USDOC 
would consider transactions other than actual transa ctions in Tier 1 of its hierarchy. Moreover, the 
key point is that an investigating authority acts consistently with its obligations under Article 14 
when it examines all evidence on the record, and makes a reasoned decision on an appropriate 
benchmark.  
B. India Has No Basis For Its Claim Concerning The NMDC's Export Prices  
 
25. India also challenges the USDOC 's decision to not use the NMDC export prices as an out -of-
country, alternative benchmark. The USDOC found that it was unable to use the NMDC export  prices 
because it was a price from the same government -related entity at issue, consistent with the 
Appellate Body 's findings that were explicitly related to the USDOC needing to analyze prices from 
government -related entities other than the entity provid ing the financial contribution at issue. 
Consistent with that finding, the USDOC in the Section 129 Determinations then explained that the 
only "government -related prices" on the record of the proceedings were those set by the NMDC, and 
thus, there were no  other government -related prices for it to evaluate.  
 
26. The USDOC also provided further analysis explaining that the NMDC export prices were not 
suitable as a world market benchmark source. Specifically, the USDOC explained that the NMDC 
export prices di d not represent a market derived price since they were distorted by the fact that the 
GOI controlled the price, through: (1) controlling government ownership of both NMDC and the 
exporter MMTC; (2) the domination of the two entities by India appointed offi cials; (3) the corporate 
directors ' key role in setting export prices; (4) the GOI 's export restrictions on iron ore by placing 
caps on the quantities exported; and, (5) the close monitoring of both entities by the Ministry of 
Steel as "strategic companies ." 
 
27. Accordingly, the USDOC fully analyzed the association chart, the price quote and the NMDC 
export prices for use as benchmarks for government sales of iron ore for LTAR, and ultimately 
determined that these three sources were not appropriate benchma rking sources, consistent with 
both the chapeau of Article 14 and Article 14(d) of the SCM Agreement.  WT/DS436/RW/Add.1  
 
- 48 - 
 
  VI. THE PANEL SHOULD REJECT INDIA'S CHALLENGE UNDER ARTICLE 14(B) OF THE 
SCM AGREEMENT CONCERNING THE SDF PROGRAM  
 
28. India argues that the USDOC acted inconsistently with Article 14(b) of the SCM Agreement 
because the USDOC failed to address the issue of the SDF program in its Section 129 Determinations. 
However, there was no finding of inconsistency concerning the benefit conferred by the SDF prog ram 
in the 2006 administrative review, and therefore, there was no recommendation by the DSB. India 's 
claim relating to Article 14(b) therefore does not fall within the scope of this compliance proceeding.  
 
29. For completeness, the United States also demo nstrates that India 's Article 14(b) arguments 
fail on the merits because as discussed by the USDOC in its 2006 final determination, the SDF fund 
did not contain the steel producers ' own funds, and was therefore not a cost for the USDOC to 
account for in ca lculating the benefits conferred. Accordingly, the Panel should reject India 's claims.  
VII. THE PANEL SHOULD REJECT INDIA'S CLAIMS CONCERNING THE NEW SUBSIDY 
PROGRAMS UNDER ARTICLES 21.1 AND 21.2  
 
30. India is precluded from raising arguments against the new subsidy programs from the 2004, 
2006, 2007, and 2008 administrative reviews because a Member cannot raise claims in an 
Article  21.5 proceeding against an unchanged aspect of a measure that was previously found to be 
WTO-consistent in the original proce edings. As a result of a finding that there was no WTO -
inconsistency, the USDOC did not, and did not need to, revise its determinations concerning the new 
subsidy allegations in the administrative reviews.  
 
31. India is also precluded from raising new argu ments under Article 21 because it previously had 
an opportunity to do so, but opted not to. In the original proceedings, although India appealed the 
original panel 's finding concerning Article 21, India did not ask for the Appellate Body to find that 
the USDOC breached Article 21 by failing to examine properly each of the new subsidy allegations 
at issue. Therefore, India cannot now argue in this compliance proceeding that the USDOC failed to 
establish a sufficiently close link or nexus and failed to c onsider certain factors when it could have 
raised those arguments in the original proceeding.  
 
32. India also challenges two "new" subsidy programs in the Section 129 Determinations - mining 
rights of iron ore and mining of coal for LTAR. However, India 's claims concerning the "new" subsidy 
programs in the Section 129 Determinations must fail because the USDOC did not examine new 
subsidy programs in its Section 129 Determinations. And, even were the compliance Panel to 
examine the merits, India has failed t o establish that the Section 129 Determinations were 
inconsistent with Articles 21.1 and 21.2 of the SCM Agreement.  
VIII.  INDIA'S CLAIMS UNDER ARTICLE 12.1 HAVE NO MERIT  
 
33. Contrary to India 's assertions, the USDOC acted consistently with Article 12.1 o f the 
SCM Agreement. In particular, the record shows that the USDOC provided notice of the information 
required and all parties were given ample opportunity during the underlying administrative 
proceedings to submit factual information related to Tata 's proprietary price quote and the miniratna  
status of the NMDC. Further, the Section 129 proceeding did not involve some sort of new factual 
investigation regarding these issues that might have been subject to Article 12.1 obligations. India 's 
arguments are th us without merit.  
 
34. Furthermore, neither the Appellate Body nor the original panel found in the underlying 
proceedings that the USDOC should further seek information concerning the price quotes or the 
NMDC 's miniratna  status. Specifically, regarding the  proprietary price quote submitted by Tata, the 
original panel faulted the USDOC for failing to provide a contemporaneous rationale in the USDOC 's 
underlying determinations. With respect to the NMDC 's miniratna status, the Appellate Body 's finding 
was base d upon the USDOC 's failure to address the information on the record before it. Thus, 
contrary to India 's claims, nothing in Article 12.1 of the SCM Agreement obligated the USDOC to 
reopen the administrative records to solicit new factual information.  WT/DS436/RW/Add.1  
 
- 49 - 
 
  IX. INDIA'S CLAIMS UNDER ARTICLE 12.8 LACK MERIT  
 
35. Contrary to India 's claims, the USDOC fully complied with its obligations under Article 12.8 to 
disclose the essential facts under consideration with respect to the issue of whether NMDC export 
prices were a suitable out -of-country benchmark for iron ore. The USDOC disclosed the fact that the 
GOI placed export restrictions on iron ore in its 2004 administrative review verification report, 
wherein it detailed the GOI 's divulgence of its "canalization res trictions" on the exportation of high 
grade iron ore. In the Section 129 Final Determination, the USDOC then relied on this verification 
report as one of the bases for its determination to not use the NMDC export prices as a world -market 
benchmark. Thus, t he USDOC was considering facts already disclosed, and which the GOI and other 
interested parties had ample opportunity to address in the context of 2004 administrative review.  
36. India's arguments also mischaracterize the USDOC 's obligations. An authorit y's obligation 
under Article 12.8 is limited to disclosing the essential facts – not its reasoning or conclusions.  
37. India claims that the USDOC acted inconsistently with Article 12.8 by not disclosing 
information as to the "diversification of the indus trial sector in India [and the] length of time for 
which the provision of iron ore by NMDC program was operational because the USDOC did not 
disclose these facts in the preliminary determination." This argument is meritless because the 
information that the  USDOC considered in analyzing the diversification and length of time factors 
under the third sentence of Article 2.1(c) was on the records of the respective underlying 
administrative proceedings. India had ample opportunity to respond to such disclosure o f 
information. Likewise, India 's suggestion that it could not address those Article 2.1(c) factors in its 
case brief and defend its interests ignores the unambiguous finding of the original panel on this 
issue, which indicated that USDOC would consider the se factors in reaching any de facto specificity 
determination for the sale of high grade iron ore by the NMDC.  
X. INDIA'S CLAIM UNDER ARTICLE 19.3 SHOULD BE REJECTED  
 
38. India claims that the USDOC 's determinations in the challenged investigations are inconsistent 
with Article 19.3 of the SCM Agreement because the USDOC 's Section 129 Final Determination 
changed the cash deposit rates for JSW and Tata from those applied pursuant to U.S. domestic 
litigation settlements.  
 
39. The WTO -consistency of the Section 129 Determinations relates to whether the findings by 
the USDOC comport with the SCM Agreement. There is no obligation, however, in the DSU or the 
SCM Agreement to apply revised CVD rates no higher than certain rates that may have b een applied 
pursuant to domestic proceedings. Article 19.3 of the SCM Agreement speaks to non -discriminatory 
application of countervailing duties, as appropriate to each source of imports, and does not create 
any rule by which if rates were lower in the pa st, they may not rise in the future (a so -called 
"ratchet").  
 
40. The logical implication of India 's argument is that when, subsequent to a domestic settlement, 
there are WTO proceedings that revise CVD rates, investigating authorities must defer to the se ttled 
rates, and cannot revise CVD rates to implement DSB recommendations and rulings. Such an 
argument is absurd and contrary to Articles 19.3 and 19.4, under which the CVD rate should be 
appropriate to the source, imposed on all sources of subsidized imp orts causing injury, and not in 
excess of the rate of subsidization. Consider: had the USDOC 's revision of CVD rates during its 
Section 129 proceedings resulted in rates lower  than the settled rates pursuant to domestic 
proceedings, India would surely comp lain if the USDOC did not implement the Section 129 rates, 
and instead chose to rely on the earlier, settled rates. But India cannot have it both ways, through 
an argument that converts Article 19.3 into a review for whatever a Member (or panel) may not 
consider "appropriate".  
 
41. India's claim rests on an erroneous interpretation of Article 19.3. Article 19.3 does not provide 
a basis apart from the substantive provisions of the SCM Agreement to challenge how CVD rates are 
calculated; instead, this provisi on speaks to the application of CVDs on a non -discriminatory basis, 
in the amount that is appropriate to the source of the subsidized imports. The CVD rates determined 
through the USDOC 's Section 129 proceedings implemented the DSB recommendations and ruli ngs 
related to facts available findings – and India, notably, has not challenged the USDOC 's 
implementation of those findings. India 's suggestion that the USDOC needed to conduct a 
comparison of those rates, reflecting implementation of the DSB 's recommend ations, to the previous WT/DS436/RW/Add.1  
 
- 50 - 
 
  settled rates to consider which were more (in a seemingly abstract sense) "appropriate" is 
disingenuous and unsupported by the text and plain meaning of Article 19.3.  
 
EXECUTIVE SUMMARY OF THE U.S. SECOND WRITTEN SUBMISSION  
I. INDIA 'S CLAIMS THAT THE UNITED STATES FAILED TO COMPLY WITH THE DSB'S 
RECOMMENDATION AND RULING AS TO 19 USC §1677(7)(G)(i)(III) ARE MERITLESS  
 
42. India in its rebuttal submission asserts that the Appellate Body 's "as such" finding as to 
Section  1677(7)(G)(i)( III) "cannot be questioned by the United States." The meaning and WTO -
consistency of Section 1677(7)(G)(i)(III) was not an issue of law covered by the panel report and 
was thus not properly before the Appellate Body. Moreover, the Appellate Body 's report d oes not 
reflect an accurate understanding of Subpart III because it fails to take into account the discretion 
accorded by the statute to the USDOC.  
 
43. A proper understanding of Subpart III does not require the United States to take WTO -
inconsistent actio n. If the USDOC refrains from self -initiating an anti -dumping investigation on the 
same day a countervailing duty petition is filed by an industry, or vice versa, the circumstance 
covered under Subpart III of the statute will not be triggered. In fact, the  USDOC has never self -
initiated an investigation on the same day a petition was filed by an industry so as to invoke this 
provision, and has stated its intent to not exercise its discretion in such a manner. Accounting for 
this discretion is necessary to d raw an accurate conclusion of whether Section 1677(7)(G)(i)(III) 
mandates WTO -inconsistent action or precludes WTO consistent action. There is no measure the 
United States must take to comply with the DSB recommendation.  
 
44. India asserts that the United States has not come into compliance with the DSB 
recommendations because the RPT in this dispute expired in April 2016, and the measures taken to 
comply occurred after that date. Nowhere does the DSU provide that a compliance Panel must deem 
a Membe r to have failed to implement DSB recommendations and rulings solely because compliance 
measures were taken after the expiration of the RPT. If a complaining Member deems the other 
Member in a dispute to have not implemented DSB recommendations and rulings , it can raise its 
concerns at DSB meetings and, if still not satisfied, request consultations and the establishment of 
a compliance panel.  
 
45. Moreover, India misunderstands the United States ' position in this dispute. The United States 
does not rely on the June 2016 exchange of letters between the Office of the United States Trade 
Representative and the USDOC, or the United States ' DSB statements in 2016, to show that it has 
not failed to take  the appropriate action in response to the DSB recommendation concerning 
Subpart  III. Rather, as explained above, the exchange of letters and other U.S. statements serve to 
confirm  that the United States has been, and continues to be, in compliance with th e obligations 
underlying the DSB 's rulings and recommendations concerning Subpart III.  
 
46. This is not to say that the exchange of letters and DSB statements in 2016 are not relevant 
to the Panel 's assessment. They clearly corroborate the interpretation of the U.S. statute set out by 
the United States. Further, they reflect the USDOC 's stated position as to how it intends to exercise 
that discretion: by not self -initiating an antidumping investigation on the same day as the filing of a 
countervailing duty  petition by an industry, or vice versa, such that the conditions of Subpart III 
would take effect. Thus, the USDOC 's letter confirms both the existence of discretion in the U.S. 
statute with respect to self -initiation, and a decision by the agency as to h ow it intends to exercise 
its discretion to self -initiate, a decision which is further reinforced through formal statements by the 
United States at repeated DSB meetings in 2016.  
II. INDIA HAS FAILED TO DEMONSTRATE THAT THE USDOC'S PUBLIC BODY 
DETERMINATIO N IS INCONSISTENT WITH ARTICLE 1.1(A)(1)  
 
47. In its second written submission, India makes broad statements regarding the interpretation 
of Article 1.1(a)(1), alleging that "the GATT and the SCM Agreement are intended to apply only 
when entities operate i n the public realm and the Appellate Body has evolved the test of 
'governmental functions ' as a tool to determine areas that do not concern the 'public realm '". India 
then goes on to state that it "believes that setting -up commercial enterprises like NMDC involve the 
government operating in the private realm and such commercial enterprises cannot be considered 
to be public bodies."  WT/DS436/RW/Add.1  
 
- 51 - 
 
  48. However, under Article 1.1(a)(1), the purpose of the financial contribution analysis is to 
determine whether a transfer of value was made and can be attributed to the government. The 
conduct at issue in the financial contribution analysis necessarily will be those actions described in 
the subparagraphs of Article 1.1(a)(1). Where the economic value being transferred, through o ne of 
the actions described in Article 1.1(a)(1) of the SCM Agreement, belongs to the government, that 
transfer is an exercise of governmental authority – the authority over the government 's own 
economic resources. That is, under the Appellate Body 's appro ach, an entity is a public body if it 
possesses, exercises or is vested with government authority ( e.g., authority over the government 's 
own economic resources). Thus, when an entity transfers the government 's resources, it is making 
a financial contributi on, just as the government (in the narrow sense) makes a financial contribution 
by engaging in the identical conduct described in Article 1.1(a)(1), subparagraphs (i) -(iii) and the 
first clause of subparagraph (iv). The behavior contemplated by Article 1.1 (a)(1) of the 
SCM Agreement is not limited to the public realm, as India suggests.  
 
49. Indeed, the realm  in which an entity operates is not, and should not be, the focus of a public 
body inquiry. Rather, the inquiry is on the entity itself. This logic acc ords with the Appellate Body 's 
approach to "public body," where it has stated that a public body is an  entity that possesses, 
exercises or is vested with governmental authority. The Appellate Body has stressed that the focus 
of the public body examination properly is on the "core features of the entity concerned, and its 
relationship with the government in the narrow sense".  
 
50. Thus, the commercial nature of an entity also does not preclude it from being a public body. 
The panel in Korea – Commercial Vess els likewise recognized this, finding that "it is not clear to us 
that an entity will cease to act in an official capacity simply because it intervenes in the market on 
commercial principles if that intervention is ultimately governed by that entity 's obligation to pursue 
a public policy objective." Rather, an investigating authority must take into consideration the totality 
of the evidence regarding the relationship between the government and the public body at issue, 
and base its determination on the specific facts of each case.  
 
51. India also argues that "there must have been positive evidence on the record before the 
USDOC to establish that mining iron ore or at a minimum, mining in general, must be 'ordinarily 
classified as governmental in the lega l order ' of India and that it is also normally classified as a 
governmental function within other WTO members." This argument, however, results from a too 
narrow reading of the Appellate Body 's findings. Examining whether the functions or conduct of an 
entity are of a kind that are ordinarily classified as governmental is but one relevant consideration 
that may be examined on a case -by-case basis.  
III. INDIA'S CLAIM UNDER ARTICLE 19.3 OF THE SCM AGREEMENT RELIES ON AN 
ERRONEOUS INTERPRETATION  
 
52. India has  failed to explain why the reasoning of the Appellate Body in US – Anti-Dumping and 
Countervailing Duties (China) would be analogous to the dramatically different facts in the present 
dispute such that this Panel should find it persuasive. India simply mis represents the 
Appellate  Body's report, where the observations as to Article 19.3 were focused on concerns over 
double remedies. This is clear throughout the report 's discussion of Article 19.3. To maintain that 
the Appellate Body 's observations as to the interpretation of "appropriate amounts" in Article 19.3 
are relevant to the unique factual circumstances of this dispute, which do not involve any concerns 
over double remedies, is simply not credible.  
 
53. India submits that if the USDOC 's higher rates ca lculated in the Section 129 Proceedings could 
be imposed instead of lower settled rates negotiated between the parties, it would set up a conflict 
between the domestic judicial review provided for under Article 23 of the SCM Agreement and WTO 
dispute settl ement proceedings under Article 30 of the SCM Agreement. The specific entries subject 
to the settled rates in the USDOC 's Amended Final Determination were liquidated, and consequently 
the imports of steel subject to the relevant administrative proceedings received the full benefits of 
the settled rates. Accordingly, this is not a situation where proceedings under Article 23 are 
superseded and nullified by proceedings under Article 30. Further, although India argues that 
Article  23 of the SCM Agreement is no t subject to Article 30, accepting India 's interpretation would 
effectively render Article 30 subject to Article 23. That is, administering authorities would be limited 
in their ability to fully implement DSB recommendations if they were required to modify  the results 
of such implementation based on prior rates determined pursuant to domestic judicial proceedings. WT/DS436/RW/Add.1  
 
- 52 - 
 
  Such a result would run contrary to the text of both provisions and lead to absurd results, as 
illustrated by India 's arguments before this panel . 
 
EXECUTIVE SUMMARY OF U.S. RESPONSES TO THE PANEL'S QUESTIONS  
 
U.S. RESPONSE TO PANEL QUESTION 14  
54. Nothing in Article 1.1(a)(1) suggests that the existence of profit -maximizing, commercial 
behavior – or of non -market -oriented, non-commercial behavior – would be dispositive of, or even 
relevant to, whether a government exercises meaningful control over an entity and its conduct. It is 
not the case that a government, or a government -controlled entity, cannot act in a commercial 
manner or operate in the private realm. Similarly, non -profit -maximizing, non -commercial behavior 
also does not add more to the inquiry of the relationship between the government and the entity. 
Rather, commercial behavior or non -commercial behavior goes to the issue of whether a benefit has 
been conferred.  
 
55. The implication of a finding to the contrary would mean that an entity that is otherwise 
meaningfully controlled by the government, or even vested with governmental authority, but 
operates in a profit -maximizing manner, could preclude the entity from being a public body. The 
result would be that all of its behavior – whether it provides a benefit or not – would be shielded 
from review under the SCM Agreement. Such a conclusion would remove a broa d range of transfers 
of governmental economic resources from the disciplines of the SCM Agreement contrary to the 
terms of the Agreement.  
 
56. For similar reasons, the Panel should not find the US – Pipes and Tubes Products (Turkey) 
report, which is curren tly on appeal, to be persuasive. As set out in the U.S. appellant submission 
in that dispute, and below, the approach of the panel in that dispute was not based on the text of 
the SCM Agreement, nor did it reflect a correct understanding of the Appellate B ody's approach to 
public body. Specifically, the panel in that dispute erred in its interpretation of Article 1.1(a)(1) of 
the SCM Agreement by: (1) determining that evidence of commercial behavior of an entity is 
necessarily relevant to a public body anal ysis; and (2) requiring evidence that a government has 
actually exercised control over an entity 's operations, collapsing the analysis of public body with the 
entrustment and direction of a private body. The panel 's errors reinforce the fact that the 
Appel late Body's approach relating to "governmental authority" has confused Members and 
adjudicators, and requires clarification.  
 
57. With respect to commercial behavior, the panel in US – Pipes and Tubes Products (Turkey) 
erred when it found that such evidenc e was necessarily relevant. As described above, nothing in the 
text of Article 1.1(a)(1) suggests that a "public body" cannot engage in "commercial behavior." In 
addition, the panel 's finding in US – Pipes and Tubes Products (Turkey) was based on a 
misunde rstanding of the statement by the Appellate Body in US – Carbon Steel (India)  to which it 
referred.  
 
58. Further, the issue under Article 1.1(a)(1) is not whether the conduct  of the entity is 
governmental. Rather, the question is whether the entity  engagin g in the conduct is governmental 
or pertaining or belonging to the people, i.e., whether the entity is " a government  or any  public 
body." Focus on the specific conduct  of an entity would be relevant to an analysis of benefit, for 
example, or when examining  whether there was government entrustment or direction of a private  
body under Article 1.1(a)(1)(iv) of the SCM Agreement.  
 
59. It is important to recall that Article 1 is defining a subsidy by a Member and begins by 
identifying those entities which may ma ke a "financial contribution." A Member can make the 
financial contribution directly through its "government" or through a "public body." In this way, the 
relevant conduct of the entity is attributable to the Member because of the governmental or "public" 
nature of the entity. Whether that entity 's conduct results in a subsidy, however, will depend on 
whether a benefit is thereby conferred within the meaning of Article 1.1(b).  
 
60. On the other hand, a "private body" may be found to provide a financial cont ribution 
attributable to a Member through the conduct described in Article 1.1(a)(1)(i) -(iii) only when it is 
"entrust[ed] or direct[ed]" by the government to do so. That is, a private body may make a financial 
contribution if the government entrusts or di rects the private body " to carry out  one or more of the WT/DS436/RW/Add.1  
 
- 53 - 
 
  functions illustrated in (i) to (iii)." Accordingly, as the Appellate Body has correctly explained, the 
entrustment or direction must be linked to the private body 's conduct .  
61. By requiring specifi c evidence that the Turkish Prime Ministry Privatization Administration 
(TPA) in fact exercised  its veto power or sought to influence Erdemir 's pricing, production or financial 
decisions, the panel in US – Pipes and Tubes Products (Turkey)  considered that an investigating 
authority must find that the government (TPA) directed the conduct (pricing, production, and other 
decisions) of the entity i n question. The panel 's approach conflates the public body analysis with 
that of entrustment and direction, which would render the term "public body" meaningless. Under 
the panel 's interpretation, to find a financial contribution involving any entity other  than the 
government in the narrow sense, an investigating authority would need to show the government 's 
control over the conduct  in question. The panel 's approach in US – Pipes and Tubes Products (Turkey)  
effectively denies that any analysis of the entity  or its core attributes is necessary to analyze whether 
the entity is a public body.  
 
62. India's position that commercial behavior is necessarily relevant to a public body inquiry, also 
essentially assumes that a government must be found to actively contr ol business transactions 
performed by a public body. Permitting this assumption would mean that a government not 
exercising control over an entity 's business decisions for a period of time (during which profit -
maximizing behavior occurs) would result in a finding that an entity is not a public body. Thus, all 
of the entity 's actions would be shielded from the disciplines of the SCM Agreement, even where 
there is evidence that the government has the ability to intervene and control the entity when it 
chooses . This would result in the absurd outcome that an entity can be a public body for some 
periods of time (when the government actively controls the entity 's behavior), but not a public body 
for other periods of time (where there is no evidence the government  has exercised its ability to 
control). This cannot be the case. Therefore, neither profit -maximizing, commercial behavior, nor 
non-profit maximizing, non -commercial behavior is relevant to a public body analysis.  
U.S. RESPONSE TO PANEL QUESTION 45  
63. During the Section 129 proceedings, the USDOC determined that "India had mining programs 
for iron ore"; "all mineral rights are owned by the state governments"; and "the GOI granted leases 
to mine iron ore and coal, receiving a royalty per unit extracted."  The subsidy program at issue in 
this question is the receipt of mining rights of iron ore through leases  issued by the Government of 
India. Under the particular facts of this dispute, the entities that "use" the mining rights of iron ore 
program are those  entities that hold the leases.  Accordingly, the USDOC found that "the GOI 's 
provision of mining rights was specific . . . because the provision of the rights was limited to two 
industries, specifically steel producers and mining companies." Significantly,  the USDOC in 
conducting this de facto specificity analysis made no findings that the "use" of the mining rights of 
iron ore program extended to downstream beneficiaries. For this reason, the United States does not 
believe that this Panel needs to, or shou ld, address the interpretive issue presented in this question 
of whether the term "use" in Article 2.1(c) extends to downstream beneficiaries.  
U.S. RESPONSE TO PANEL QUESTION 49  
64. Article 2.1(c) refers to use of the subsidy program  by a limited number of certain enterprises. 
This does not refer to "use" of the product at issue. As the Appellate Body in US – Carbon Steel 
(India) recognized, in light of its plain meaning, "the word 'use' [under Article 2.1(c)] refers to the 
action of using or employing something " – in this context, using a "subsidy programme." 
Article  2.1(c) does not require a finding that the product at issue  was "used" by a limited number of 
enterprises.  
 
U.S. RESPONSE TO PANEL QUESTION 55  
65. As previous Appellate Body and panel reports have found, a measure will only be found to be 
WTO-inconsistent "as such" where it necessarily leads to  WTO-inconsistent action. Because the 
United States may apply the measure in a WTO -consistent manner, there is no basis to find th at the 
measure is "as such" WTO -inconsistent. Therefore, the United States need not take any action to 
implement the DSB recommendation.  WT/DS436/RW/Add.1  
 
- 54 - 
 
  U.S. RESPONSE TO PANEL QUESTION 56  
66. The USDOC 's commitment expresses its decision, as the investigating authority re sponsible 
for administering U.S. laws relating to investigations of dumping and subsidization, to exercise its 
discretion under those laws in a particular way. Unless and until a U.S. court finds otherwise, the 
practice and interpretation of the investigat ing authority of U.S. law, including the extent of its 
discretion, is U.S. law.  
U.S. RESPONSE TO PANEL QUESTION 72  
67. The Amended Final Results came into effect before India requested a panel in the original 
dispute, and despite the fact that they contained the deposit rates then applicable to JSW and Tata, 
India chose not to challenge them before the original panel. Instead, India chose to challenge the 
specific findings and calculations made with respect to JSW and Tata in the underlying CVD 
determinations. The United States has complied with the findings of the panel and Appellate Body 
in the underlying proceedings, and this compliance Panel has been asked by India to examine 
whether it has done so successfully. The Amended Final Results are not a  measure taken to comply; 
nor has India alleged that they are a measure taken to comply. Therefore, examination of the basis 
for these, now expired, rates is not within the scope of these proceedings. Were the Panel to 
consider the basis for these settleme nt rates to be a relevant inquiry in the context of India 's 
claims, it would be for India to submit the evidence and argumentation necessary to substantiate 
those claims under Article 19.3. It has not done so.  
EXECUTIVE SUMMARY OF U.S. COMMENTS ON INDIA 'S RESPONSES TO THE PANEL 'S 
QUESTIONS  
U.S. COMMENT ON RESPONSE TO THIRD PARTY PANEL QUESTION 10  
68. Canada, the European Union, and Japan assert that a compliance panel cannot revisit "as 
such" findings that have been adopted by the DSB. Japan suggests that " [w]hether it is necessary 
to allow a respondent Member to revisit the original findings adopted by the DSB as exceptions to 
this principle may require the consideration of whether and to what extent another remedial path is 
available to the respondent Member." Canada claims that a " panel has no authority, absent cogent 
reasons for doing so, to question the underlying findings that were made by a panel or the Appellate 
Body once they have been adopted by the DSB."  
69. Nowhere does the DSU cons ider that a panel should consider whether a party has identified 
"cogent reasons" for reaching a different finding or conclusion than the Appellate Body. Were a panel 
to decide to simply apply the reasoning in a prior Appellate Body report and decline to f ulfill its 
function under Articles 7.1, 11, and 3.2 to make findings on the applicability of existing provisions 
of the covered agreements, as understood objectively through customary rule of interpretation, the 
panel would risk creating additional obligat ions for Members that are beyond what has been provided 
for in the covered agreements – an act strictly prohibited under Articles 3.2 and 19.2 of the DSU.  
 
_______________  
 
 
 
 
 WT/DS436/RW/Add.1  
 
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  ANNEX  C 
ARGUMENTS OF THE THIRD 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 China1 59 
Annex  C-3 Integrated executive summary of the arguments of Egypt2 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 
 
 
1 China submitted the text of the oral statement as its integrated executive summary.  
2 Egypt submitted the text of the oral statement as its integrated executive summary.  WT/DS436/RW/Add.1  
 
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  ANNEX  C-1 
INTEGRATED EXECUTIVE  SUMMARY OF THE ARGU MENTS OF CANADA  
I. ARTICLE 1.1(A)(1) OF THE SCM AGREEMENT  
 
1. India's argument that there must have been positive evidence on the record that mining is a 
governmental function for the NMDC to be considered a public body is a conclusion that results from 
a narrow and selective reading of the jurisprudenc e. 
 
2. The Appellate Body explained in US – Anti-Dumping and Countervailing Measures (China)  and 
in US – Carbon Steel (India)  that in making a public body determination, the conduct of the entity 
in question is to be analyzed with regard to the core charac teristics and functions of the entity, its 
relationship with the government, and the prevailing legal and economic environment. The 
Appellate  Body provided examples of the type of evidence to be sought, including government 
policies in the sector, and whet her the functions or conduct of the entity are of a kind that are 
ordinarily classified as governmental in the legal order of the relevant Member.  
 
3. The fact that the function of an entity may be a relevant consideration  in terms of evidence 
that the ent ity is a public body within the legal order of a Member is a wholly different standard from 
that articulated by India. In practice, evidence that an entity is carrying out a government function 
is not limited to showing that the sector in which the entity operates is ordinarily classified as a 
government function.  
 
4. For example, a state -owned commercial bank that provides low -interest loans could be 
considered a public body, as was the case in US – Anti-Dumping and Countervailing Duties (China) . 
Yet, the activity of providing loans might not ordinarily be classified as "governmental" in most 
countries, and so it would likely not bear on the question of the features of a public body. Thus, this 
is a clear example of how the classification in the domestic le gal or administrative system cannot be 
a necessary factor in a public body determination, as it is possible for entity to be a public body even 
where the activities are not ordinarily classified as governmental in the legal order of the country.  
 
5. There is a great deal of other evidence that could be available to an investigating authority 
showing that an entity is carrying out a government function. Moreover, whether an entity is carrying 
out a function that is ordinarily classified as governmental is bu t one "relevant consideration" 
amongst many for an investigating authority to assess in a public body determination, if such 
evidence exists.  
 
6. In Canada's view, it is incumbent on the investigating authority to objectively assess all of the 
relevant evi dence available to it on the characteristics of the entity. If the entity is acting in a 
commercial manner, this could be relevant evidence that the entity is not pursuing governmental 
functions. However, this in itself is not necessarily "dispositive". Si milarly, if there is evidence that 
an entity is engaging in non -commercial behaviour, this could also be relevant evidence related to 
the pursuit of governmental functions or the existence of meaningful control, although this too would 
not necessarily be " dispositive".  
 
7. Along similar lines, the fact that an entity may be engaging in the same activity or even be 
engaging in competition with private actors may constitute relevant evidence to be considered by 
an investigating authority, but it does not nece ssarily mean that an entity is not a public body. An 
entity could be engaging in such activities and still be meaningfully controlled by the government, 
pursuing governmental functions, or be in possession of governmental authority such that it would 
be co nsidered a public body.  
 
8. In sum, an investigating authority must determine on a case-by-case basis that an entity is 
either a public body or that it is not based on an evaluation of the core characteristics and features 
of the entity and its relationshi p with the government. A public body designation should be made on 
the basis of available evidence related to government policies, the applicable legal order, the 
prevailing economic environment in the country, and other evidence related to the core featur es of WT/DS436/ RW/Add.1 
 
- 57 - 
 
  the entity and its relationship with the government, including whether the government exercises 
meaningful control over an entity and its conduct.  
 
II. ARTICLE 14(D) OF THE SCM AGREEMENT  
 
9. It is well -established that, when selecting such a benchmar k, an investigating authority must 
first consider market prices for the same or similar good in the relevant market in the country of 
provision. An investigating authority must also conduct a sufficiently diligent investigation into, and 
solicitation of, r elevant facts so that it is able to base its determination on positive evidence on the 
record.  
 
10. In light of the primacy of in -market prices as benchmarks, it is particularly important that an 
investigating authority solicit the information it needs to properly assess them. Indeed, the Appellate 
Body has explained "that it is only once an investigating authority has properly complied with its 
obligation to investigate whether there are market -determined in -country prices that reflect 
prevailing market co nditions in the country of provision that it may, consistently with Article 14(d), 
use alternative benchmarks for the purposes of Article 14(d)".  
 
11. Commerce had such private prices from the market in question available to it, and was 
required to conduct  a diligent investigation into, and solicitation of, relevant facts surrounding those 
prices. It appears to have assumed that certain private prices in the market of provision were 
unreliable because they were "provisional", without soliciting information about what "provisional" 
meant in that context. While Article 14(d) is silent on the question of whether actual transaction 
prices must be used as the basis for in -market benchmark prices, the same principles stemming 
from a proper interpretation of Articl e 14(d) apply. The determinative question is whether the prices 
constitute a reliable measure of "market -determined prices that reflect prevailing market conditions 
in the country of provision". In Canada's view, soliciting information both about what "pro visional" 
meant in this context, and about whether the provisional prices accurately reflected market -
determined prices should have been integral parts of conducting a sufficiently diligent investigation 
into, or solicitation of, relevant facts pertaining to in-market prices. The mere statement that prices 
are "provisional", without any further analysis as to whether they reflect prevailing market prices 
for the good in question, is an insufficient basis to reject prices from within the relevant market.  
 
12. What is an appropriate benchmark should be determined on a case -by-case basis. Indeed, the 
analysis under Article 14(d) is a factual one that requires an investigating authority to conduct its 
investigation in a diligent manner, and to base its determina tion on positive evidence on the record. 
If, after conducting a diligent investigation into the relevant prices, an investigating authority 
concludes that private prices are unreliable as a benchmark, it must ensure that its conclusion is 
based on positive  evidence on the record, and that it provides a reasoned and adequate explanation 
of the basis for its decision.  
 
13. Where an alternative benchmark price, such as export prices for the good in question to a 
third country market, includes government prices, an investigating authority may not reject the 
government prices simply on the basis that they are a government price. Canada reiterates the 
Appellate Body's guidance that an investigating authority cannot "presume that the export price s et 
by a government provider is inherently unreliable. This must be proven on the basis of evidence that 
an investigating authority must examine so it may base its determination on positive evidence on 
the record".  
 
14. Finally, both the chapeau  of Article 14 and the Appellate Body's finding that an investigating 
authority must provide a reasoned and adequate explanation of its determination are equally 
applicable to review investigations. Canada agrees that investigating authorities can use different 
method ologies to calculate benefit in different reviews. However, the obligations that any method 
used to calculate benefit be transparent and adequately explained apply to the new methodology. 
While there may be situations in which an explanation of the reasons  for changing methodologies 
may be required to meet the standard of transparency and adequate explanation for the new 
methodology, it is not strictly necessary as a general rule, and will depend on the particular facts of 
the case.  
 WT/DS436/RW/Add.1  
 
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  III. ARTICLE 19.3 OF TH E SCM AGREEMENT  
 
15.  Canada considers that investigating authorities are required to determine whether 
countervailing duties are imposed in appropriate amounts in relation to parallel domestic judicial, 
arbitral or administrative review proceedings. Artic le 19.3 requires the imposition of countervailing 
duties in "appropriate amounts". The Appellate Body has explained that the term "appropriate" is 
synonymous with "proper", which is a relative standard that must be assessed in relation to 
something else. I t also found that this assessment should occur in relation to what it referred to as 
"core norms" and that this required investigating authorities to adapt countervailing duties to 
particular circumstances.  
 
16. This is consistent with the context of Artic le 19.3. The Appellate Body has emphasized that 
the obligation to impose subsidies in appropriate amounts is related to the requirement to calculate 
a subsidy as precisely as possible under Article VI:3 of the GATT 1994. The requirement to "maintain" 
judicial, arbitral or administrative procedures to review final determinations can be considered a core 
norm set out in Article 23 of the SCM Agreement (especially in light of the identical provision set out 
in Article 13 of the Anti-Dumping Agreement ). This interpretation of Article 19.3 is also supported 
by the object and purpose of the SCM Agreement, which is intended to "strik[e] a balance between 
the right to impose countervailing duties to offset subsidization … and the obligations that Members 
must respect in order to do so".  
 
17. The U.S. interpretation of Article 19.3 on the other hand is untenable. It appears to suggest 
that, if domestic judicial review proceedings finish prior to parallel WTO dispute settlement 
proceedings, there is no requireme nt to take into account the outcome of these judicial review 
proceedings in a redetermination to implement an adverse WTO decision. This simply cannot be the 
case. 
 
18. It is entirely possible to envisage circumstances where a respondent company requests 
domestic judicial review following a countervailing duty investigation for a claim that eventually 
results in a reduction of its countervailing duty rate from 20% to 15% in a redetermination. The 
same respondent could request that its country initiate WTO d ispute settlement proceedings on a 
separate claim that would reduce its countervailing duty rate by a further 3% in a subsequent 
redetermination to implement an adverse WTO decision. The U.S. position would result in a 
countervailing duty rate of 17% inste ad of 12% as the redetermination implementing the WTO 
decision would always replace the earlier redetermination issued as a result of domestic judicial 
review proceedings.  
 
19. This interpretation would effectively cast a chill over WTO dispute settlement  concerning trade 
remedies measures. The fact that domestic judicial review proceedings and WTO dispute settlement 
must exist alongside one another is reflected in Articles 23 and 30 of the SCM Agreement. These 
different forms of review will sometimes lead  to different results, but investigating authorities have 
an obligation to ensure that they reconcile these results in a good faith manner that ensures that 
any remaining countervailing duty rate is only imposed in "appropriate amounts" in accordance with 
Article 19.3 of the SCM Agreement.  
 
20. The U.S. interpretation also ignores the fact that the outcome of parallel judicial review 
proceedings could be considered a "measure taken to comply" in compliance proceedings under 
Article 21.5 of the DSU. Measures  taken to comply are not restricted to measures formally or 
explicitly taken by Members to the rulings and recommendations of the Dispute Settlement Body. 
Rather, the Appellate Body has specifically found that "measures taken to comply" may include 
measure s with a particularly close relationship with the declared measures taken to comply, such as 
a section 129 determination and a subsequent administrative review.  
 
21. Here, Commerce should have provided a reasoned and adequate explanation as to why it was 
appropriate to replace the negotiated settlement agreements with the results of its section 129 
redetermination. It was not entitled to simply replace the settlement agreement because the 
section  129 redetermination was issued afterwards.  
 
 
 WT/DS436/ RW/Add.1 
 
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  ANNEX C -2 
INTEGRATED EXECUTIVE  SUMMARY OF THE ARGU MENTS OF CHINA  
31 January 2019  
 
Introduction  
 
1. Mr. Chairman, members of the Panel, China welcomes this opportunity to present its views as 
a third party in these proceedings concerning the United States' compliance with the 
recommendations and rulings of the Dispute Settlement Body in United States – Countervailing 
Measures on Certain Hot -Rolled Carbon Steel Flat Products from India . 
 
2. China's comments this morning will address issues relating to the proper framework for 
evaluating whether an entity is a "public body" under Article 1.1(a)(1) of the SCM Agreement, 
de facto specificity, and Article 14(d).  
 
Public Body  
 
3. It is now well es tablished that a "public body" within the meaning of Article 1.1(a)(1) of the 
SCM Agreement is an entity "vested with authority to exercise governmental functions".1 It is 
similarly well established that "evidence that a government exercises meaningful con trol 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."2 
 
4. In China's view, it is likewise clear that Article 1.1(a)(1), properly interpreted, requires the 
"government function" identified by an investigating authority to have a clear and logical connection 
to the conduct alleged to constitute a financial contribution. In the context of the ongo ing dispute 
regarding the U.S. compliance determinations at issue in US – Countervailing Measures (China) 
(Article 21.5 – China)  ("DS437"), China notes that the United States professes to disagree with this 
view. The United States maintains that an entity vested with authority to perform a "government 
function" that has no connection whatsoever  to the conduct that is alleged to constitute a financial 
contribution can still be deemed a public body.3 
 
5. The U.S. interpretive position in DS437 is diametricall y opposed to the position that the 
United  States took before the Appellate Body in the original proceedings in this dispute, where the 
United States explained that the "authority required of a public body" is the authority to exercise 
"the key governmental  functions … described in the subparagraphs [of Article 1.1(a)(1)]".4 The U.S. 
position was not that the "authority required of a public body" is the authority to perform any 
governmental function whatsoever . Rather, the United States properly understood t he necessary 
relationship between the "government function" that an entity is vested with authority to perform, 
and the conduct at issue under Article 1.1(a)(1).  
 
6. Likewise, the U.S. Department of Commerce ("USDOC")'s analysis in the compliance 
determina tion at issue before this Panel does not reflect the overly broad interpretive position that 
the United States has staked out in DS437. Rather, in its public body analysis of India's National 
Mineral Development Corporation ("NMDC"), the USDOC properly rec ognized that the relevant 
question was whether NMDC was performing a "government function" when it sold iron ore to 
downstream entities – i.e. the conduct at issue under Article 1.1(a)(1).  
 
7. In this respect, the USDOC explained in its determination that the Government of India owns 
all mineral resources on behalf of the Indian public, and that the Indian federal government has final 
 
1 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para.  318.  
2 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para.  318. 
3 See Panel Report, para. 7.28.  
4 United States' opening statement before the Appellate Body, US – Carbon Steel (India)  
(24 September  2014), para. 11 (emphasis original).  WT/DS436/RW/Add.1  
 
- 60 - 
 
  approval with respect to granting mining leases for iron ore.5 The USDOC found that it is therefore 
"'a function of the government of India to arrange for the exploitation of public assets, in this case 
iron ore'".6 
 
8. The USDOC further found that the Government of India "specifically established the NMDC to 
perfor m part of this function, i.e., 'developing all minerals other than coal, petroleum oil and atomic 
minerals.'"7 The USDOC explained that NMDC operates several iron ore mines and sells the iron ore 
it obtains from those mines.8 Based on the evidence before i t, the USDOC concluded that because 
NMDC is exploiting public resources on behalf of the Government of India, NMDC is performing a 
"government function" when it sells iron ore.9 
 
9. The USDOC then proceeded to analyse whether the Government of India exerci sed 
"meaningful control" over NMDC when it engaged in the conduct at issue under Article 1.1(a)(1) of 
the SCM Agreement "( i.e., the sale of high grade iron ore)".10 In conducting this analysis, the USDOC 
did not examine whether the Government of India exercised control over NMDC's conduct in the 
abstract. Rather, the USDOC properly examined the government's control over the specific conduct 
alleged to constitute a financial contribution – the sale of iron ore – and concluded based on its 
examination of the relevant evidence that the government "exercised meaningful control over the 
NMDC and its conduct."11 
 
10. In sum, China's view is that in the compliance proceedings at issue before this Panel, the 
USDOC correctly evaluated whether NMDC was vested with authority to perform a "government 
function" that is relevant to the conduct potentially being attributed to the Government of India 
under Article 1.1(a)(1), and that the USDOC also understood that in order to evaluate whether the 
Government of India was e xercising meaningful  control over NMDC, it needed to evaluate whether 
the Government of India was exercising control over NMDC in relation to that conduct . I would note 
that, unfortunately, this framework has eluded the USDOC entirely in its evaluation of whether 
Chinese companies are public bodies.  
 
11. My comments today have focused on the fact that at a high level, China believes that the 
USDOC adopted a proper framework  for its public body analysis, but China takes no position on 
whether the evidence  relied upon by the USDOC in its analysis of NMDC substantiates the USDOC's 
ultimate conclusion that NMDC is a public body. China would, however, draw the Panel's attention 
to the recent panel report in US – Countervailing Measures on Certain Pipe and Tube Pr oducts  
(Turkey) ("DS523") as the Panel evaluates the sufficiency of the evidence relied upon by the USDOC.  
 
12. The panel in DS523 examined the extent to which the USDOC's determination that certain 
Turkish entities were public bodies rested upon evidence that each entity had in fact exercised 
governmental authority as opposed to "formal indicia of control".12 The panel explained that it did 
not consider the "mere fact" that an entity's business strategy " align[ed] with  GOT macroeconomic 
policy objectives" s howed an exercise of governmental authority.13 In this respect, China notes the 
USDOC's reliance in the present dispute on evidence of a recommendation by NMDC's chairman that 
was " consistent with  the GOI's policies and actions".14 
 
13. On the other hand, th e panel in DS523 also emphasized the lack of factual evidence presented 
by the USDOC relating to the exertion of influence by government officials over an entity's business 
 
5 See U.S. Department of Commerce Issues and Decision Memorandum in the Section 129 Proceeding 
United States – Counter vailing Duty Measures on Certain Hot -Rolled Carbon Steel Flat Products from India  
(WTO/DS436): "Preliminary Determination on Other Issues" (18 March 2016) ("DS436 Preliminary Public 
Bodies Determination"), p. 6.  
6 United States' first written submission, p ara. 170, quoting USDOC Section 129 Other Issues 
Preliminary Determination, p. 6 (Exhibit IND -55); USDOC Section 129 Final Determination, p. 20 (Exhibit 
IND-60). 
7 United States' first written submission, para. 171.  
8 See United States' first written submission, para. 171.  
9 United States' first written submission, para. 171.  
10 United States' first written submission, paras. 173 -176. 
11 United States' first written s ubmission, para. 186.  
12 Panel Report, US – Countervailing Measures on Certain Pipe and Tube Products ( Turkey ), paras. 7.39 
and 7.40; 7.49.  
13 Panel Report, US – Countervailing Measures on Certain Pipe and Tube Products ( Turkey ), para. 7.44 
(emphasis added).  
14 United States' first written submission, para. 174 (emphasis added).  WT/DS436/ RW/Add.1 
 
- 61 - 
 
  operations. For example, the panel emphasized that the United States had not shown that the 
presence of government officials on an entity's board of directors amounted to more than an " ability  
… to determine critical aspects" of the entity's operations.15 By contrast, China notes the USDOC's 
finding in the compliance determination at issu e before this Panel that the "the GOI was significantly 
involved in NMDC's day -to-day operations" based on, inter alia , evidence of the alleged involvement 
of NMDC directors in the actual negotiation of prices and quantities of iron ore.16 
 
14. While China does not endorse all aspects of the panel's analysis in DS523, China does consider 
that aspects of that analysis may be of use to this Panel as it evaluates whether the evidence relied 
upon by the USDOC in reaching its revised determination includes eviden ce that the Government of 
India exercised control in a meaningful way, or whether the USDOC's analysis remains focused on 
mere "formal indicia" of control.  
 
Specificity  
 
15. China will now briefly comment on an issue pertaining to specificity. India has a rgued that the 
USDOC failed to identify the existence of the relevant subsidy programmes.17 The United States 
disputes that this argument is within the scope of these compliance proceedings.18 The United States 
has also asserted that "India's suggestion that  the USDOC failed to identify the relevant subsidy 
program misinterprets Article 2 of the SCM Agreement"19 and that "[t]his only reinforces that India's 
challenge is outside the scope of these Article 21.5 proceedings."20 
 
16. China disagrees with the United  States that India has misinterpreted Article 2 of the SCM 
Agreement. In the United States' view, "the existence of a [subsidy] program is not a question that 
is to be resolved within the confines of the third sentence of Article 2.1(c)".21 According to the  
United  States, "[t]o read somehow a requirement to establish the existence of 'a subsidy 
programme' in applying the final sentence of Article 2.1(c) misinterprets that provision to require an 
investigating authority to identify a subsidy program for a sec ond time."22 
 
17. The United States' interpretation Article 2.1(c) as divisible into three isolated  sentences is 
illogical and overly mechanistic. In order for an investigating authority to take account of the duration 
of the subsidy programme as required u nder the third sentence of Article 2.1(c), the subsidy 
programme has to be identified and substantiated in the first place. If no subsidy programme is 
properly identified under the correct legal standard, any consideration of the length of time during 
which such "programme" has been in operation will necessarily be inconsistent with Article 2.1(c). 
In contrast, a holistic interpretation of Article 2.1(c) is consistent with the logical progression of the 
specificity inquiry. A holistic interpretation is also  consistent with the Appellate Body's findings in 
DS437.23 
 
18.  The panel should therefore find India's argument to be within the scope of this compliance 
proceeding and conduct its evaluation of whether the USDOC failed to identify the existence of a 
subsidy program consistently with that of the Appellate Body and compliance panel in DS437.  
 
Article 14(d)  
 
19. Before concluding, China would like to offer its views on Article 14(d). China recalls the 
Appellate Body's finding that the circumstances in which an investigating authority may resort to an 
out-of-country benchmark under Article 14(d) are "very limited".24 China therefore urges the Panel 
to carefully evaluate whether the reasons submitted by the USDOC in support of its decision  to rely 
on an out -of-country benchmark are valid in light of the record evidence.  
 
 
15 Panel Report, US – Countervailing Measures on Certain Pipe and Tube Products ( Turkey ), para. 7.42.  
16 United States' first written submission, para. 174.  
17 See India's first written s ubmission, paras. 88 -94. 
18 See United States' first written submission, Section  VI.B.1.  
19 United States' first written submission, para. 210.  
20 United States' first written submission, para. 237.  
21 United States' first written submission, para. 236.  
22 United States' first written submission, para. 236.  
23 Appellate Body Report, US – Countervailing Measures (China) , para. 4.156.  
24 Appellate Body Report, US – Softwood Lumber IV , para. 102. See also Appellate Body Report, US – 
Anti-Dumping and Countervailing D uties (China) , para. 439.  WT/DS436/RW/Add.1  
 
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  Conclusion  
 
20. China thanks the Panel for the opportunity to address these important issues.  
 
 WT/DS436/ RW/Add.1 
 
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  ANNEX C -3 
INTEGRATED EXECUTIVE  SUMMARY OF THE ARGU MENTS OF EGYPT  
I. Introduction  
 
1. Egypt welcomes this opportunity to present its views on these compliance proceedings under 
Article  21.5 of the Understanding on Rules and Procedures Governing the Settlement of Disputes 
(DSU) in United States – Countervailing D uty Measures on Certain Hot -Rolled Carbon Steel Flat 
products from India  (DS436). Egypt considers that these compliance proceedings raise significant 
issues of legal interpretation of the Agreement on Subsidies and Countervailing Measures 
(SCM  Agreement).  
 
2. In this third party submission, Egypt will focus on the following key issues:  
 
i. The consistency with Articles 15.1 and 15.3 of the SCM Agreement of 19 USC 
§ 1677(7)(G)(i)(III) (Section § 1677(7)(G)(i)(III)) (cross -cumulation);  
ii. The USITC's injury determi nation;  
iii. Other causes of injury (non -attribution factors);  
iv. The consistency with Article 14(b) of the SCM Agreement of the continued imposition 
of the countervailing duty on the SDF program;  
v. The consistency with the chapeau to Article 14 and Article 14(d) of  the SCM Agreement 
of the rejection of in -country price of iron ore as a benchmark for the benefit analysis; 
and 
vi. The issue of the "close link" in the inclusion of new subsidy programs under 
Articles  21.1 and 21.2 of the SCM Agreement.  
II. The consistency of Section § 1677(7)(G)(i)(III)  with Articles 15.1 and 15.3 of the 
SCM Agreement (cross -cumulation)  
 
3. India argues that Section 1677(7)(G)(i)(III) requires the USITC to cumulate the effects of 
subsidized imports with the effects of dumped, no n-subsidized imports when petitions to initiate 
countervailing duty investigations or anti -dumping duty investigations are filed on the same day and 
countervailing duty investigations or anti -dumping duty investigations are initiated by the 
investigating a uthority. India also notes that, in certain situations, Section 1677(7)(G)(i)(III) 
requires that the assessment of injury be based on, inter alia , the volume, effects and impact of 
non-subsidized, dumped imports.1 
 
4. In response, the United States contend s that Section 1677(7)(G)(i)(III) requires cross -
cumulation when the administering authority self -initiates an antidumping investigation on the same 
day as the filing of a countervailing duty petition by an industry, or vice versa. It further states that 
Section 1677(7)(G)(i)(III) requires cross -cumulation if the specific conditions of that provision are 
met.2 
 
5. In the original proceedings, the Appellate Body held that "the effects of imports other than 
such subsidized imports must not be incorporated in a cumulative assessment pursuant to 
Article  15.3".3 The Appellate Body further found that Section 1677(7)(G)(i)(III) requires the USITC 
to cumulate the effects of subsidized imports with the effects of non -subsidized imports for the 
 
1 India's first written submission, para. 34.  
2 United States' first written submission, para. 39.  
3 Appellate Body Report, US – Carbon Steel (India) , para. 4.579.  WT/DS436/RW/Add.1  
 
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  assessment of material injury. On this basis, the Appellate Body agreed with the Panel that 
Section  1677(7)(G)(i)(III) is inconsistent with Articles 15.1 and 15.3 of the SCM Agreement.4 
 
6. Following the guidance of the panel and the Appellate Body in the original dispute, Egypt  
considers that cumulating the effects of subsidized imports with the effects of non -subsidized imports 
(e.g. dumped, non -subsidized imports) for assessment of material injury is inconsistent with 
Articles  15.1 and 15.3 of the SCM Agreement.  
 
III. The injury determination  
 
7. According to India, the United States has acted inconsistently with Articles 15.1 and 15.4 of 
the SCM Agreement because the USITC failed objectively to assess the state of the domestic 
industry. India notes that the assessment carr ied out by the USITC in its Section 129 Determination 
is perfunctory at best and grossly falls short of the obligation to ensure an "objective examination" 
based on "positive evidence" of the impact of subsidized imports on the relevant economic factors 
and indices of the domestic industry.5 When there is positive movement in a number of factors, it 
would require a compelling explanation from the investigating authorities as to how in light of such 
positive trends, the domestic industry is materially injure d. 
 
8. The United States alleges that the USITC found that subsidized imports had a significant 
impact on the domestic industry during the period of investigation. The USITC found that although 
most of the domestic industry’s trade indicators were higher i n 2000 than in 1998, many indicators 
declined in the latter portion of the period as subsidized imports increased their presence in the U.S. 
market. The U.S. industry’s commercial shipments and market share declined from 1999 to 2000, 
even while apparent U .S. consumption in the merchant market increased, and production and 
capacity utilization were both substantially lower in interim 2001 than in interim 2000.6 
 
9. In Egypt's view, when there is a positive movement in number of factors, the injury analysis 
would require a compelling explanation from the investigating authorities as to how the domestic 
industry is materially injured in light of, and despite, those positive trends. This is consistent with 
the analysis of the panel in Thailand – H-Beams , which stated that where an authority finds positive 
trends in a number of Article 3.4 factors, the injury analysis:  
 
… would require a thorough and persuasive explanation as to whether and how such 
positive movements were outweighed by any other factors and indi ces which might be 
moving in a negative direction during the [period of investigation] .7 
10. Assuming that India's understanding of the evidence before the Panel is correct, in the present 
dispute, subsidized imports increased by 572% during 2000 compared to 1998 (Table HRS -1). 
During that period, it appears that most of the domestic industry indices have improved such as 
total U.S. shipments, the market share, production, capacity, capacity utilization, inventories, 
productivity, and production co st. Conversely, it also appears that, when subsidized imports 
decreased by 28% during interim 2001 compared to in interim 2000, the performance of most of 
the economic factors deteriorated. Egypt therefore observes that these facts would appear to negate 
or attenuate – in the absence of a "thorough and persuasive explanation" – the causal link between 
the injury suffered by the domestic industry and the subsidized imports. Egypt invites the panel to 
examine the above mentioned view on the injury analysis.  
 
IV. Other causes of injury (non -attribution factors)  
 
11. India submits that the USITC failed properly to examine the following factors:  
 
a) Imports from non -subsidized sources8: 
 
• The USITC noted that imports from Brazil, Japan and Russia constituted 32.6 percent of 
the merchant market consumption during 1998 and subsequent to the imposition of duties 
on imports from the aforesaid countries, the volume of imports from these sources 
 
4 Appellate Body Report, US – Carbon Steel (India) , para. 4.600.  
5 India's first written submission, para. 50 . 
6 United States' first written submission, paras. 74 and 75.  
7 Panel Report, Thailand  – H Beams , para. 7.249.  
8 India's first written submission, para. 61.  WT/DS436/ RW/Add.1 
 
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  decreased. However, there is no rationale to presume that the "injury" to the domestic 
industry evident in the period was not attributable to such dumped imports; and  
• Moreover, the United States' market also faced dumped imports from countries such as 
China, Kazakhstan, Netherlands, Romania, Chinese Taipei  and Ukraine. Substantial import 
volumes were also coming in from these sources at less than fair value.  
b) The constituents of the domestic industry faced closure owing to reasons unrelated to imports, 
subsidized or otherwise9: 
 
• Several U.S producers experienced a number of closures; and  
• Interruptions to their operations in producing hot -rolled steel products. The causes for the 
reported closures interruptions included equipment failure; installation of new equipment, 
power outages, and fires reduced demand.  
c) Contraction in domestic demand: demand in the United States declined during the period of 
investigation.10 
 
12. The United States responds that:  
 
• The USITC acknowledged that such imp orts had a significant presence in the U.S. market 
during the period of investigation, but reasonably found that non -subject import volumes 
and market share declined substantially, even while the volume and market share of 
subsidized imports increased11; 
• The USITC examined demand trends as an alternative cause of injury. The USITC 
determined that declines in the domestic industry's indicators in 2000, which began early 
in that year, did not correspond with declines in demand, which began later that year. By 
identifying these temporal distinctions, the USITC ensured that it was not attributing any 
adverse effects of declining demand to the subsidized imports12; and  
• The USITC did not find that these closures were caused by the subsidized imports or were 
otherwis e indicative of material injury. Indeed, the USITC noted that the closures did not 
prevent the U.S. industry’s production capacity from increasing during this period.13 
13. Egypt observes that the Appellate Body has recently undertaken a comprehensive 
interpretation of Article 15.5 of the SCM Agreement in EU – PET (Pakistan) . Specifically, the 
Appellate  Body noted that Article 15.5 requires that the authority establish that the subsidized 
imports are "causing" injury to the domestic industry. This "causal re lationship" requires establishing 
the existence of a "genuine and substantial relationship of cause and effect" between the subsidized 
imports and the injury sustained by the domestic industry.14 
 
14. For the subsidizing imports to rise to the level of a "genuine a substantial" cause , the authority 
must examine both:  
 
i. the existence and extent of the link between the subsidized imports and the injury 
suffered by the domestic industry (genuine); and  
 
9 India's first written submission, para. 61.  
10 India's first written submission, para. 61.  
11 United States' first written submission, para. 144.  
12 United States' first written submission, para. 143.  
13 United States' first written submission, para. 146. 
14 Appellate Body Report, EU – PET (Pakistan) , para. 5.168 (quoting Appellate Body Reports, US – 
Softwood Lumber VI (Article 21.5 – Canada) , para. 132, US – Wheat Gluten , para. 69; US – Lamb , para. 179 
(addressing the causation standard under Article 4.2(b) of  the Agreement on Safeguards); US – Upland Cotton , 
para. 438; and US – Large Civil Aircraft (2nd complaint) , para. 913 (addressing the causation standard under 
Articles 5 and 6 of the SCM Agreement).  WT/DS436/RW/Add.1  
 
- 66 - 
 
  ii. the comparative significance of such a link in relation to  the contributions of other 
known factors to that injury (substantial).15 
15. The Appellate Body further recognized that factors other than the subsidized factors may "at 
the same time" contribute to the injury sustained by the domestic industry.16 Thus, an investigating 
authority must not attribute to the subsidized imports the injuries caused by other known factors. 
The Appellate Body has consistently held that "[t]his analysis involves separating and distinguishing 
the injurious effects of other known fact ors from the injurious effects of the subsidized imports".17 
The authority must "provide a satisfactory explanation of the nature and extent of the injurious 
effects of the other known factors, as distinguished from the injurious effects of the subsidized 
imports".18 
 
16. While recognizing that Article 15.5 of the S CM Agreement does not prescribe a particular 
methodology to assess causation19, the Appellate Body has stated that the authority must satisfy 
itself that "the subsidized imports, on their own, qualify as a 'genuine and substantial' cause of the 
injury".20 The Appellate Body also addressed the issue of how to analyze the effects of other factors 
even if those effects are individually "insignificant". The Appellate Body stated that:  
 
… in a situation where multiple other known factors, taken together, have a si gnificant 
impact on the state of the domestic industry – while the impact of each of them in 
isolation may be only insignificant – an investigating authority may be required to assess 
whether the effects of all of these factors, collectively, are so signif icant that the 
subsidized imports cannot be characterized as a "genuine and substantial" cause of the 
injury.21  
17. At the same time, the Appellate Body held that an authority would not be required to 
undertake a collective analysis of the effects of the o ther factors where it finds that "only a limited 
number of those other factors contribute to the injury, and each of them to a limited degree".22 
 
18. Egypt further notes that Article 15.5 of the SCM Agreement lists certain types of "other factors" 
which may be relevant, including "volumes and prices of non -subsidized imports of the product in 
question" and "contraction in demand or changes in the pattern of consumption".23 
 
19. According to India's statement of facts, it appears that the USITC has no t properly examined 
the other known factors that may have contributed to the injury sustained by the domestic industry 
such as non -subsidized products; several U.S producers experiencing a number of closures; and 
contraction in demand. In particular:  
 
• With respect to the volumes and prices of non -subsidized imports, Egypt takes note of the 
presence of other imports in the US market, which increased by 150% in 2000 compared 
to 1998. Consequently, the non -subsidized imports may significantly contribute to th e 
material injury suffered by the domestic industry;  
• Moreover, several U.S producers experienced a number of closures. Although the USITC 
found that the closures did not prevent the production capacity of the U.S industry from 
increasing during this period, during 2001 compared to 2000 manufacturing capacity in 
the US industry declined. Consequently, factory closures may considered one of the other 
causes of material injury suffered by the domestic industry;  
• With respect to contraction in demand, Egyp t notes that there is a decline in total 
consumption during 2000 compared to 1998 and in interim 2001 when compared to in 
 
15 Appellate Body Report, EU – PET (Pakistan) , para. 5.169.  
16 Appellate Body Report, EU – PET (Pakistan) , para. 5.169.  
17 Appellate Body Report, EU – PET (Pakistan) , para. 5.171 (referring to Appellate Body Reports, China – 
GOES , para. 151; and US – Hot-Rolled Steel , para. 223) . 
18 Appellate Body Report, EU – PET (Pakistan) , para. 5.171.  
19 Appellate Body Report, EU – PET (Pakistan) , para. 5.171 (referring to Appellate Body Report, US – 
Hot-Rolled Steel , para. 224 (in the context of Article 3.5 of the Anti -Dumping Agreement)).  
20 Appellate Body Report, EU – PET ( Pakistan) , para. 5.175.  
21 Appellate Body Report, EU – PET (Pakistan) , para. 5.176.  
22 Appellate Body Report, EU – PET (Pakistan) , para. 5.177.  
23 Panel Report, Mexico  – Olive Oil , para. 7.305.  WT/DS436/ RW/Add.1 
 
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  interim 2000 which refers to decrease in demand during the same period. Consequently, 
the contraction in demand may also be considered  another significant cause of material 
injury suffered by the domestic industry.  
20. To the extent that India's statement of the facts is correct, it would appear that the effects of 
the above -mentioned non -attribution factors could potentially be signific ant. The USITC was 
"required to assess whether the effects of all of these factors, collectively, are so significant that the 
subsidized imports cannot be characterized as a 'genuine and substantial' cause of the injury".24 
Egypt invites the panel to analy ze the USITC non attributed analysis in the light of WTO recent 
jurisprudences. However, i n the absence of a proper "non -attribution" analysis with respect to the 
injurious effects of the other known factors, it would appear that the USITC attributed the e ffects of 
these other factors to the allegedly subsidized imports.  
 
V. The consistency of the continued imposition of countervailing duties on the SDF 
program with Article 14(b) of the SCM Agreement  
 
21. Regarding the interpretation and implementation of Article 14(b) of the SCM Agreement, India 
claims that the USDOC acted inconsistency with Article 14(b) of the SCM Agreement in determining 
the benchmark interest rate with respect to the loans under the Steel Development Fund (SDF). In 
India's view, the US DOC did not take into account the costs incurred by recipients in order to obtain 
SDF loans.  
 
22. In the original proceedings, the Appellate Body found that a proper assessment under 
Article  14(b) involves an examination of the total cost of the investigat ed loan to the recipient, and 
whether there is a difference between that cost and the total cost of a comparable commercial loan.24 
 
23. Egypt is of the opinion that, in order to prove the existence of a "benefit" conferred by the 
SDF loans, the authority must derive the difference between the amount paid by the recipient 
company for the loan and the amount it would have paid for a similar/comparable commercial loan 
in the market. The difference would be the benefit under Article 1.1(b) of the SCM  Agreement.  
 
24. Moreover, when calculating the benefit conferred by the SDF loans, Egypt considers that the 
USDOC should clearly explain the methodology used for the calculation in a detailed and transparent 
manner, in accordance with the provisions of Ar ticle 14(b) of the SCM Agreement.  
 
25. In calculating the benefit, Egypt submits that the comparison between the terms and 
conditions of the loan under investigation and the terms and conditions of the comparable 
commercial loan in the same market  must be taken into consideration. The adjustments of any other 
expenses or fees must be taken into consideration when calculating the benefit of the investigated 
loans.  
 
VI. Rejection of in -country price of iron ore as benchmark for the benefit analysis under 
the chapeau to Article 14 and Article 14(d) of the SCM Agreement  
 
26. In the challenged determinations, India submits that the USDOC did not consider the in -
country price of India/private domestic prices for purposes of determining the benefit conferred by 
the: (i) sale of high -grade iron ore by NMDC, and (ii) mining rights of iron ore programs. Rather, 
the USDOC relied on the export price from Australia as an appropriate benchmark.  
 
27. In the original proceedings, the Appellate Body concluded that the USDOC d etermination of 
an out -of-country benchmark was inconsistent with Article 14(d) of the SCM Agreement because the 
USDOC did not adequately support its conclusion that private domestic prices were not suitable as 
a benchmark.25 
 
28. Egypt agrees with the Appe llate Body's conclusion in the original proceedings because the 
USDOC's dismissal or rejection of the Indian domestic prices as a benchmark should have been 
based on a reasonable basis. In particular, the criteria for using the export price from Australia as 
an appropriate benchmark should have been sufficiently explained by the USDOC.  
 
 
24 Appellate Body Report, US – Carbon Steel (India) , para. 7.311.  
25 Appellate Body Report, US – Carbon Steel (India) , para. 4.269.  WT/DS436/RW/Add.1  
 
- 68 - 
 
  29. Egypt further submits that, consistently with Article 14(d) of the SCM Agreement, in -country 
benchmarks are more appropriate than the external benchmarks because they include the 
circumstances reflecting the prevailing market conditions in the country concerned. For this reason, 
the exceptional situations in which an authority may ignore in -country benchmarks is an important 
matter that needs adequate clarification  in WTO jurisprudence.  
 
VII. New subsidy programs under Articles 21.1 and 21.2 of the SCM Agreement  
 
30. In the original proceedings, the Appellate Body explained that, in assessing the likelihood of 
subsidization under Articles 21.1 and 21.2 of the ACM Agreement, an investigating authority may 
"examine new subsidy allegations in the conduct of an administrative review".26 The Appellate Body, 
however, cautioned that the "new subsidies" must be "those that have a sufficiently close link to the 
subsidies tha t resulted in the imposition of the original countervailing duty".27 
 
31. Egypt considers that it may be useful for the Panel to provide further clarification on the "close 
link or similarity between the injury resulting from the original subsidization and the new subsidies 
being proposed for examination".28 
 
VIII. Conclusion  
 
32. Egypt thanks the Panel for the opportunity to submit its view and stands ready to answer any 
questions that the Panel may have.  
 
 
 
 
26 Appellate Body Report, US – Carbon Steel (India) , para. 4.541.  
27 Appellate Body Report, US – Carbon Steel (India) , para. 4.541.  
28 Appellate Body Report, US – Carbon Steel (India) , para. 4.541.  WT/DS436/ RW/Add.1 
 
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  ANNEX C -4 
INTEGRATED EXECUTIVE SUMMARY OF  THE ARGUMENTS OF TH E EUROPEAN UNION  
I. INDIA'S CLAIMS CONCERNING 19 USC §1677(7)(G)(I)(III)  
 
1. The US objects to India's claims concerning Section 1677(7)(G)(i)(III), arguing that the Panel 
should not assess compliance with the correl ative DSB findings because the Appellate Body acted in 
violation of Article 17.6 DSU, by finding that section to be as such WTO incompatible. The EU 
considers that since the Appellate Body report has been adopted by the DSB, pursuant to 
Article  17.14 of th e DSU, both India and US shall accept it unconditionally, as a final resolution to 
that dispute. Accordingly, pursuant to Article 21.5, this Panel has a legal obligation to check 
compliance with all the recommendations and rulings of the DSB, to the extent  there is a 
disagreement between the parties about compliance with them.  
 
2. In any case, the Appellate Body did not violate Article 17.6 DSU by making findings on an 
issue outside the scope of the appeal. Instead, it responded to the Article 11 DSU appea l lodged by 
the US and then it completed the legal analysis. In order to provide a prompt and effective settlement 
of the dispute, the Appellate body is entitled to complete the legal analysis, notably of an "as such " 
claim when the text of the allegedly W TO incompatible measure is clear and undisputed. Even if the 
panel request contains a clerical error, the EU also believes that India's claims are within the panel's 
terms of reference, when one reads India's Panel request in light of the Appellate Body ju risprudence 
on the application of Article 6.2 DSU in the context of Article 21.5 panel's proceedings.  
 
3. Coming to the merits of India's claims, the EU notes that the Appellate Body found 
Section  1677(7)(G)(i)(III) to be as such incompatible with US WTO o bligations "in the event that 
the conditions set out in that provision are fulfilled". The US has argued that the US administration 
can use its discretion so as to prevent those conditions to be fulfilled. However, the US does not 
seem to have taken any la wful commitment, binding its administration to exercise that discretion in 
that way. Finally, in light of WTO case law, the EU considers that when assessing whether the US 
has complied with DSB recommendations and rulings, the Panel, in order to secure a p rompt 
settlement of this dispute, should take into account implementation actions taken subsequent to the 
expiry of the reasonable period of time.  
 
4. With regard to India's claims concerning the USDOC determination that NMDC is a public body, 
the EU is of  the view that the USDOC reviewed its previous public body determination in line with 
the jurisprudence of the Appellate Body and taking care to implement the specific recommendations 
and rulings of the DSB in the original dispute. Indeed, the USDOC looked  at the core characteristics 
and functions of the relevant entity, its relationship with the government, and the legal and economic 
environment prevailing in the country, and notably at evidence regarding the scope and content of 
government policies relati ng to the sector in which the investigated entity operates. The USDOC also 
assessed the extent to which the GOI in fact exercises meaningful control over the entity and its 
conduct, by looking at the degree of control exercised by the GOI over NMDC and the  degree of 
autonomy by the NMDC in carrying out its statutory activity. The EU does not opine on the 
evidentiary value of any particular piece of evidence or the totality of the evidence presented by 
India or the US. However, the EU stresses that the quest ion of "public body " can be assessed on the 
basis of any type of evidence that is capable of pointing to the government involvement in the entity. 
Hence, also the entity's non -commercial behaviour could be a relevant evidence, even if not 
determinative in itself. If the existence of a public body could only be demonstrated on the basis of 
official or formal evidence there would be a risk of discriminating between those Members which rely 
on formal and transparent means to relate with their public entities v is-à-vis those that rely on 
informal ones. Likewise, the EU does not think that an explicit designation of a function is required 
for that function to be considered as "governmental " and for the entity performing that function to 
constitute a public body. For instance, the observation of the concrete conduct of an entity may 
reveal that such entity is a public body when its behaviour reflects the fact that it exercises a 
governmental function. By the same token, the performance of the same function by priva te, 
commercial entities in competition with a governmental entity does not remove the possibility that 
such a function can be characterised as "governmental".  WT/DS436/RW/Add.1  
 
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  5. The US maintains that India is precluded from arguing that in order to assess de facto  
specificity of the subsidy for the sale of high grade iron ore the USDOC should have first identified 
the subsidy programme and should not have relied solely on the prov ision of the alleged subsidy to 
the mandatory respondents as the relevant duration. The EU finds that India is precluded to raise 
only those claims that concern unchanged aspects of the measure taken to comply, which are 
separable from other aspects of the  measure taken to comply and which were resolved on the merits 
in the original proceedings.  
 
6. Further, the EU considers that a formal finding of existence of a subsidy program was not 
necessary in order for the USDOC to take account of the length of time during which that subsidy 
programme was in operation. At the same time the US should be able to  show that it had an 
appropriate understanding of the subsidy programme at issue when assessing the question of 
specificity. Evidence of such understanding may result for instance from the investigating authority 
analysis of the existence of the subsidy an d of the Member's policy in the sector in which the subsidy 
was granted. The EU thinks it is also important to stress that whether the authority's understanding 
of the program is sufficient or not will greatly depend on the nature of the subsidy and the su bsidy 
program itself. Finally, the EU recalls that several panels have found that taking into account the 
two factors in the final sentence of Article 2.1(c) (including the "length of time " requirement) need 
not be done explicitly.  
 
7. As regards India's c laims against USDOC findings of de facto  specificity of the sale of mining 
rights of iron ore and mining rights of coal, the EU agrees with the US. When the investigating 
authority has found a subsidy to be de facto  specific because of use of the subsidy p rogramme by a 
limited number of certain enterprises, arguments grounded on the existence of objective criteria and 
conditions in the domestic legislation governing the eligibility to the subsidy program are irrelevant.  
 
8. With respect to India's claim tha t the US acted inconsistently with Article 14(d) SCMA by 
rejecting domestic prices because they were not actual transaction prices, the EU considers that 
actual prices are to be preferred over provisional prices because they provide a more accurate 
indicat or of the "adequate remuneration " for the provision of goods. Provisional prices can differ 
quite significantly from actual prices. The EU does not exclude, however, that also domestic 
provisional prices may be used instead of export prices where such use is properly argued and 
substantiated. Regarding India's claim with respect to the USDOC's rejection of domestic prices 
because of concerns of confidentiality, the EU considers that such rejection may be justified under 
certain strict conditions.  
 
9. Regard ing the USDOC's rejection of NMDC's export prices as benchmark because they were 
prices from the government entity whose financial contribution was under investigation, the EU 
considers that Appellate Body case law does not exclude the use of such prices p er se but has found 
that they should only be used with caution. The threshold for investigating authorities to exclude 
such prices should therefore not be set at a high level.  
 
10. India claims that the USDOC acted inconsistently with Articles 21.1 and 21. 2 by investigating 
various new subsidies in ARs between 2004 and 2008 and two new subsidies in the Section 129 
proceedings despite the absence of a sufficiently close nexus. The EU notes that India did not raise 
a claim regarding the sufficient nexus in th e original proceedings with respect to the ARs 2004 to 
2008. Under Appellate Body case law, if India had been able to make such claim in the original 
proceedings – which would appear to be the case - it would be precluded from making such claim in 
the Arti cle 21.5 proceedings. Concerning the question whether the two subsidies investigated by the 
USDOC in the Section 129 proceedings have a sufficiently close nexus, the EU does not opine on the 
facts but recalls its position that relevant criteria in this res pect include inter alia  whether the 
subsidies in question concern the same Member, the same beneficiaries and the same products.   
 
11. The EU agrees with a previous panel that when a procedural obligation set forth in the SCM 
Agreement has been fulfilled in the original proceeding (e.g. certain obligations under Article 12 
SCMA), the adjudicator will refrain from ruling that it had to be re -observed, unless the steps taken 
by the investigating authority made it necessary. With respect to India's claim unde r Article 12.1 
SCMA, the EU considers that Article 12.1 does not provide for a general obligation to request 
additional information in administrative review proceedings. Such obligation to request information 
will depend on the circumstances of each case, including inter alia  the amount of available evidence 
on record from the original proceedings and the adequacy of such evidence. An investigating WT/DS436/ RW/Add.1 
 
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  authority has a degree of discretion to assess whether additional evidence is needed. The EU also 
recalls case  law that there is no indefinite right to submit evidence in CVD investigations.  
 
12. Regarding India's claim under Article 12.8 SCMA the EU takes the position that it may not be 
sufficient for an investigating authority to simply put essential facts on th e record to comply with 
Article 12.8. The respective disclosure document must somehow indicate – even if only implicitly – 
that the essential facts in question are envisaged by the investigating authority to form the basis of 
the final determination.  
 
13. Concerning India's claim under Article 19.3, the EU considers that Article 19.3 does not 
constitute a catch -all provision that allows a complainant to challenge an investigation authority's 
calculation and determination of a countervailing duty rate. Whil e it is not excluded that certain 
factors such as settlements may be taken into account under Article 19.3, the EU fails to see an 
"affirmative obligation " for settlements in this case similar to the one that was found by the 
Appellate  Body as regards doub le remedies. Such obligation neither seems to exist under specific 
SCM provisions such as Articles 23 or 30 nor under more general principles such as legitimate 
expectations.  
 
 WT/DS436/RW/Add.1  
 
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  ANNEX C -5 
INTEGRATED EXECUTIVE  SUMMARY OF THE ARGU MENTS OF J APAN  
I. INTRODUCTION  
 
1. Japan is participating in this dispute because of its systemic interest in the correct and 
consistent interpretation and application of the  Agreement on Subsidies and Countervailing Measures 
("SCM Agreement "). In particular, Japan addresses the definition of "public body" under 
Article  1.1(a)(1); the use of an "administrative commitment" as a means to comply with DSB 
recommendations and rulings; cross -cumulation under Article 15; the ability to challenge procedural  
deficiencies under Article 12.1 in compliance proceedings; and the determination of the likelihood of 
"continuation or recurrence of subsidization and injury under Article 21.3.  
 
II. THE DEFINITION OF "PUBLIC BODY" UNDER ARTICLE 1.1(A)(1) OF THE 
SCM AGREEMENT  
 
2. The Appellate Body has explained that a "public body " is "an entity that possesses, exercises 
or is vested with governmental authority. "1 There are "different types of evidence " that may be 
relevant to showing governmental  authority .2 The App ellate Body has stated that "a government 's 
exercise of 'meaningful control ' over an entity and its conduct , including control such that the 
government can use the entity 's resources as its own, may certainly be relevant evidence  for 
purposes of determining whether a particular entity constitutes a public body."3 It also has stated 
that "whether the functions or conduct are of a kind that are ordinarily classified as governmental in 
the legal order of the relevant Member may be a relevant consideration  for determining whether or 
not a specific entity is a public body."4 The Appellate Body has not required that each conduct of an 
entity must be classified as "governmental" or "in the public realm" in order for the entity to be 
found  to be a "public body".  
 
3. Rather, in examining whether an entity is a "public body ", an investigating authority must give 
due regard to "the core characteristics and functions of the relevant entity, its relationship with the 
government, and the legal an d economic environment prevailing in the country. "5 The "core 
characteristics and functions of the relevant entity"6 may be assessed by observing the entire 
activities of the relevant entity. This overall assessment requires a holistic analysis. Japan cons iders 
that an investigating authority is not required to find a link or relationship between the relevant 
government function and the conduct giving rise to the financial contribution, as this holistic analysis 
can be done without finding such a link or re lationship.7 
 
4. Japan considers that the business sector to which an entity belongs, or whether the entity 
engages in commercial transactions, are not decisive factors for a finding of "public body".8 
Therefore, the fact that the industry includes several  commercial private entities does not exclude 
the possibility that an entity operating in that industry is a "public body". In the same way, it would 
be unreasonable to categorically deem an entity operating in a certain industry as a "public body" 
only be cause the industry is considered a public utility in that country regardless of its core 
characteristics and functions, its relationship with the government, and the legal and economic 
environment in that country. Although the nature of the industry in whi ch an entity operates may 
be taken into account, it cannot be the sole decisive factor in determining whether the relevant 
entity is a "public body".  
 
 
1 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 317.  
2 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 318 . 
3 Appellate Body Report, US – Carbon Steel (India) , para. 4.20. (emphasis added)  
4 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 297 . (emphasis 
added); see also Appellate Body Report, US – Carbon Steel (India) , para. 4.29.  
5 Appellate Body Report, US – Carbon Steel  (India), para s. 4.29, 4.43; see also  Appellate B ody Report, 
US – Anti-Dumping and Countervailing Duties (China) , para. 317. 
6 Appellate Body Report, US – Carbon Steel (India) , para. 4.29.  
7 See Japan’s response to Panel question No. 4.a.  
8 See Japan’s answer to Panel question No. 1.  WT/DS436/ RW/Add.1 
 
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  5. Japan further maintains that the requirements of "financial contribution" and "public body" 
under Arti cle 1.1(a)(1) underscore the importance of the transfer of the public 's resources. Indeed, 
the Appellate Body has found that "a government 's exercise of 'meaningful control ' over an entity 
and its conduct, including control such that the government can use  the entity 's resources as its 
own, may certainly be relevant evidence for purposes of determining whether a particular entity 
constitutes a public body."9 In Japan 's view, government resources by their very nature are distinct 
from private resources. Gove rnment resources derive from the government 's capability to procure 
financial resources through taxation and accordingly, the procurable amount by the government is 
not constrained by the economic feasibility of its activities. This stands in sharp contras t to private 
enterprises that must provide a financial return in order to attract resources from the market. 
Therefore, whether or not an entity can use, including transfer, government resources is an 
important factor that distinguishes government and priv ate entities.  
 
6. Finally, Japan considers that even if there is "compelling evidence" on a few factors that are 
relevant to the "public body" investigation, such evidence should not preclude an investigating 
authority from taking into account other factor s. Rather, an investigating authority should "avoid 
focusing exclusively or unduly on any single characteristic without affording due consideration to 
others that may be relevant ."10 
 
III. ARTICLE 15 OF THE SCM AGREEMENT  
 
A. The United States' "As Such" Inconsistency  
 
7. Japan recognizes that "it is, in principle, within the Member 's discretion to choose the means 
of implementation and to decide in which way it will seek to achieve compliance".11 However, a 
Member must achieve full compliance with th e DSB 's recommendations and rulings. As the 
Appellate  Body has found, "[t]here will not be full compliance where the implementing Member fails 
to take action to rectify the WTO -inconsistent aspects of a measure that remains in force after the 
end of the re asonable period of time".12 Furthermore, Article 32.5 of the SCM Agreement and 
Article  XVI:4 of the WTO Agreement impose affirmative obligations on all WTO Members to take 
steps to ensure the conformity of their laws with their WTO obligations. Thus, a pane l would have 
to exercise extreme caution before accepting that an administrative  "commitment" achieves 
compliance with DSB recommendations and rulings, where the implementing Member has made no 
adjustments to the statute found to be "as such" WTO -inconsist ent. 
 
B. Cross -Cumulation  
 
8. The Appellate Body has found that " the effects of imports other than such subsidized imports 
must not be incorporated in a cumulative assessment pursuant to Article 15.3. "13 Japan notes that 
the Appellate Body 's ruling, if take n at face value, would appear to leave a logical gap with regards 
to the princip al objective of Article 15.3 of the SCM Agreement, as well as the parallel provisions 
under Article 3.3 of the Anti -Dumping Agreement. In Japan 's view, the purpose of Article 1 5.3 is to 
capture circumstances where the causal relationship between the injury and subsidized imports may 
escape scrutiny simply because it would be difficult to identify, individually, the injurious effects of 
subsidized imports that originate from mult iple countries. Similarly, just as the effects of subsidized 
imports originating from several countries may not be adequately taken into account in a country -
specific analysis, depending on the conditions of competition in the domestic market in question, the 
combined effects of subsidized and dumped imports from several countries may not be adequately 
taken into account if cross -cumulation is prohibited.  
 
IV. ARTICLE 12.1 OF THE SCM AGREEMENT  
 
9. Under Article 21.5 of the DSU, the terms of reference of a compliance panel cover any 
disagreement as to the WTO consistency "with the covered agreement of measures taken to comply 
with the recommendations and rulings" of the DSB. Japan is thus of the view  that, even when there 
were no findings of violations of certain procedural obligations in an original proceeding, there may 
 
9 Appellate Body Report, US – Carbon Steel (India) , para. 4.20.  
10 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 319. 
11 Appellate Body Report, EC – Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III (Article 21.5 – 
US), para. 212. 
12 Appellate Body Report, US – Zeroing (Japan) (Article 21.5 – Japan) , para.  160. 
13 Appellate Body Report, US – Carbon Steel (India) , para. 4.579.  WT/DS436/RW/Add.1  
 
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  be circumstances where an investigating authority takes new steps to remedy the violations of 
substantive obligations. In such circ umstances, the consistency of such new steps with the same 
procedural obligations will be a new issue. On the other hand, if the authority has not taken any new 
steps to comply with the recommendations and rulings, then there are no "measures taken to 
comp ly", whose consistency with the procedural obligation would be within the compliance panel 's 
terms of reference.  
 
10. However, procedural obligations under the WTO agreements vary considerably, and their 
nature and scopes are different. Even within Article  12 of the SCM Agreement there are a number 
of different procedural obligations. Furthermore, even if new "steps" are taken in the implementation 
period, the nature and functions of such steps may vary. Whether Article 12 applies to these "steps" 
will depe nd on the nature of the "steps" as well as the specific obligations at issue in each case.  
 
V. ARTICLE 21.3 OF THE SCM AGREEMENT  
 
11. The text of Article 21.3 of the SCM Agreement does not specify particular analyses that an 
investigating authority must undertake or particular factors or elements that the investigating 
authority is required to consider, when making a determination of the likelihood of "continuation or 
recurrence of subsidization and injury". However, considering that a coun tervailing duty shall remain 
in force only to the extent necessary to "counteract subsidization which is causing injury"14, a causal 
link between subsidization and injury to the domestic industry is fundamental to the imposition and 
maintenance of a counter vailing duty. If subsidized imports cease to exist, or subsidized imports, if 
any, cease to (be able to) cause injury to the domestic industry, no countervailing duty can be 
imposed. Thus, Japan maintains that the determination of the likelihood of "contin uation or 
recurrence of subsidization and injury" must clearly demonstrate the nexus between the termination 
of countervailing duties and the continuation or recurrence of the injury.  
 
12. Based upon this standard, the investigating authority cannot simpl y assume that there is a 
basis to maintain the countervailing duties in place and accordingly the determination of likelihood 
under Article 21.3 cannot solely be based on the determinations made in the original investigation 
and prior reviews. Article 21.3  requires an investigating authority to make a likelihood determination 
based on positive evidence and an objective examination, as well as reaching a reasoned and 
adequate conclusion based on a sufficient factual basis.15 
 
VI. CONCLUSION  
 
13. Japan thanks the Panel for the opportunity to share its views.  
 
 
__________  
 
14 Article 21.1 of the SCM Agreement.  
15 See Japan’s response to Panel question No. 9.