WORLD TRADE  
ORGANIZATION   
WT/DS436/1 
G/L/987 
G/SCM/D89/1 18 April 2012 
 
 
(12-1957) 
 Original:   English 
  
 
UNITED STATES - COUNTERVAILING MEASURES ON CERTAIN  
HOT-ROLLED CARBON STEEL FL AT PRODUCTS FROM INDIA 
 
Request for Consultations by India 
 
 
 The following communication, dated 12 April 2012, from the delegation of India to the delegation of the United States and to the Chairperson of the Dispute Settlement Body, is circulated in 
accordance with Article 4.4 of the DSU.  
_______________ 
 
 
My authorities have instructed me to request c onsultations with the United States of America 
("United States") pursuant to Articles 1 and 4 of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes  (the "DSU"), Article XXII: 1 and XXIII:1 of the General 
Agreement on Tariffs and Trade 1994 (the "GATT 1994") and Article 30 of the Agreement on 
Subsidies and Countervailing Measures  (the "ASCM") with regard to the imposition of countervailing 
duties by the United States on Certain Hot Rolled Carbon Steel Flat Products From India ("subject 
goods").  
2. The United States conducted countervailing duty (t he "CVD") investigation (No.  C – 533 – 
821) and levied countervailing duties on the subj ect goods exported from India. The provisional 
measures were imposed with effect from 20 April 2 001 and the final measures were imposed effective 
from 3 December 2001. The United States concluded a sunset review in 2007 and continued the duties 
for a further period of five years. The United St ates also conducted several Administrative Reviews 
(the "AR") to determine the CVD rate/s to be a pplied on the imports made during the relevant AR 
period. The measures continue to be in force. Th e request covers the countervailing duties and other 
measures, if any, applied on the subject goods from I ndia through any notice, determination, decision 
memorandum, order, or any other instrument issu ed by the United States from time to time in 
connection with case No.C-533-821. A non-exhaustive list of such dete rminations, orders, etc issued 
by the United States in Case No.C-533-821 is enclosed as Annex 1 . The measures covered in this 
request also include certain provisions of the United States Tariff Act, 1930 and the United States 
Code of Federal Regulations, Title 19 – Customs duties, Volume 3, Chapter III, Part 351 ("19 CFR 
351") that are "as such" inconsistent with the provisi ons of the ASCM.  The request also covers all the 
amendments, replacements, implementing acts or an y other related measure in connection with the 
measures referred herein.  
3. India considers that the following provisions of the United States Tariff Act, 1930 and the 
United States Code of Federal Regulations contai ned in 19 CFR 351 are "as such" inconsistent with 
Articles 12, 14, 15, 19 and 32 of the ASCM:  
(a) The United States Code of Federal Regula tions contained in 19 CFR 351.511(a)(2)(i) 
to (iii) are "as such" inconsistent with Article 14(d) of the ASCM because they WT/DS436/1 
G/L/987 G/SCM/D89/1 
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  require the adoption of benchmark prices (either Tier I or Tier II as the case may be) 
without first examining whether the rem uneration for the provision of goods is 
adequate and is consistent with market principles.  
(b) The United States Code of Federal Regulations contained in 19 CFR 
351.511(a)(2)(iv) requiring the use of 'deliver ed prices' are inconsistent "as such" 
with Article 14(d) of the ASCM because they disregard the prevailing market 
conditions in the country of provision of goods. 
(c) The United States Code of Federal Regulations contained in 19 CFR 
351.511(a)(2)(iv) requiring the use of 'deliver ed prices' are inconsistent "as such" 
with Articles 19.3 and 19. 4 of the ASCM because they lead to the imposition of inappropriate and / or excess countervailing duty. 
(d) Section 771 (7)(G) of the United States Tariff Act 1930 is "as such" inconsistent with 
Article 15.3 of the ASCM to the extent that it requires cumulation of imports from 
countries not subject to simultaneous CVD i nvestigations, while determining injury 
for the purposes of imposition of CVD. 
(e) Section 776(b) of the United States Tariff Act 1930 and the implementing regulations 
contained in 19 CFR 351.308 are "as such" in consistent with Article 12.7 of the 
ASCM because it requires the use of 'adverse facts available'.  
(f) To the extent the United States Tariff Act 1930 and the Code of Federal Regulations 
mentioned above are inconsistent with the provisions of the ASCM, the United States 
has failed to take all necessary steps to ensu re the conformity of its laws with the 
provisions of the ASCM pursuant to Article 32.5 of the ASCM. 
4. India also considers that the measures described  in paragraph 2 above are inconsistent with, 
inter alia , Articles I and VI of the GATT 1994, Articles 1, 2, 10, 11, 12, 13, 14, 15,19, 21 and 22  of 
the ASCM as briefly indicated below: 
(a) In connection with the alleged provision of sale of High Grade Iron Ore for Less Than 
Adequate Remuneration:   
(i) The determination that the National Minera l Development Corporation (NMDC) is a 
"government authority" is inconsistent with  Article 1.1(a)(1) of the ASCM because it 
is based on Government ownership and does not consider all the relevant factors. 
(ii) The determination that the Government of India, through the NMDC, provided a 
financial contribution through sale of iron ore fines and lumps, is inconsistent with 
Article 1.1 (a) (1) of the ASCM. 
(iii) The United States failed to establish that  the sale of iron ore by the NMDC to 
producers of the subject goods, conferred a benefit within the meaning of Article 
1.1(b) of the ASCM. 
(iv) The determination regarding 'specificity'  
 is inconsistent with Article 2.1 of the ASCM because the provision of iron ore is 
not limited to certain enterprises.   WT/DS436/1 
 G/L/987 
 G/SCM/D89/1 
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   is inconsistent with Article 2.1(c) of the ASCM because it fails to consider all the 
mandatory factors listed thereunder. 
 is inconsistent with Article 2.4 of th e ASCM because it is not based on positive 
evidence.  
(v) The United States' failure to collect all re levant information is inconsistent with 
Article 12.1 of the ASCM. 
(vi) The United States' failure to determine the adequacy of the actual remuneration, or 
lack thereof, for the provision of iron-ore, is inconsistent with Article 14(d) of the ASCM. 
(vii) The benchmark prices 'as applied' for calculation of the amount of subsidy, are 
inconsistent with Article 14(d) of the ASCM because the United States disregarded 
the NMDC prices. 
(viii) The rejection of the export prices of the NM DC as a benchmark price is inconsistent 
with Article 14(d) of the ACSM. 
(ix) The adoption of 'delivered prices' as the b asis for determining benchmark prices in the 
various administrative reviews is inconsis tent with Article 14(d) of the ASCM 
because it disregards the prevailing market conditions for iron-ore in India.  
(x) The adoption of world market prices (Tier II prices) for iron ore lumps in respect of 
one exporter in the AR 2006, even when actua l market prices in India (Tier I prices) 
were available on the records of the case, is  inconsistent with Article 14(d) of the 
ASCM.  
(b) In connection with the Captive Mining of Iron Ore:  
(i) The determination that mining rights gran ted by the Government of India are 
"captive" and are 'de facto' specific is c ontrary to the facts on record and does not 
meet the requirements of Article 12.5 of the ASCM.  
(ii) The determination that the grant of 'mining rights' amounts to provision of goods (i.e. 
provision of iron ore), is inconsistent with Article 1.1 (a)(1)(iii) of the ASCM because 
the grant of 'mining rights' cannot be equated to provision of goods. 
(iii) The United States' failure to determine the adequacy of the actual remuneration, or 
lack thereof, for the grant of 'mining rights' , is inconsistent with Article 14(d) of the 
ASCM. 
(iv) The determination that mining rights granted to steel producers constituted a 'financial 
contribution', is inconsistent with Article 1.1 (a) (1) of the ASCM.  
(v) The United States failed to establish that the grant of mining rights conferred a 
'benefit', within the meaning of Article 1.1 (b) of the ASCM.  
(vi) The determination that the grant of mining ri ghts is 'de facto specific', is inconsistent 
with Article 2 of the ASCM because it is not limited to steel producers. WT/DS436/1 
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  (vii) The calculation of the amount of subsidy is inconsistent with Article 14(d) of the 
ASCM because of the incorrect benchmarks applied for calculation. 
(c) In connection with the Captive Mining of Coal: 
(i) The determination that the grant of 'mining rights' amounts to provision of goods (i.e. 
provision of coal), is inconsistent with Article 1.1 (a)(1)(iii) of the ASCM because 
grant of 'mining rights' cannot be equated to provision of goods.  
(ii) The United States' failure to determine the adequacy of the actual remuneration, or 
lack thereof, for the grant of 'mining rights' , is inconsistent with Article 14(d) of the 
ASCM. 
(iii) The determination that the mining rights granted to steel producers constituted a 
'financial contribution' is inconsistent  with Article 1.1.(a) (1) of the ASCM. 
(iv) The United States failed to establish that the grant of mining rights conferred a benefit 
within the meaning of Article 1.1 (b) of the ASCM.  
(v) The determination that granting captive mining rights of coal to steel producers is 'de 
jure specific' is inconsistent with Article 2 of the ASCM because the grant is based on 
objective criteria or conditions. 
(vi) The calculation of the amount of subsidy is inconsistent with Article 14(d) of the 
ASCM because of the incorrect benchm arks applied for the calculation. 
(d) In connection with the operation of the Steel Development Fund (SDF): 
(i) The determination that the operation of th e SDF constituted a financial contribution 
by the Government is inconsistent with Article 1.1 (a) of the ASCM because SDF comprises contributions made and mandated by the participating steel producers themselves. 
(ii) The determination that the operation of the SDF conferred a 'benefit' is inconsistent 
with Article 1.1 (b) of the ASCM.  
(iii) The United States' failure to collect all re levant information is inconsistent with 
Article 12.1 of the ASCM. 
(iv) The calculation of the amount of benefit is inconsistent with Articles 14 and 19.4 of 
the ASCM because it is incorrect and not adequate ly explained. 
(e) In connection with the injury determination:  
(i) The cumulation of imports for determination of  injury is inconsistent with Article 15.3 
of the ASCM because the United States included imports from countries not subject to simultaneous CVD investigation. 
(ii) The determination of injury is inconsistent  with Article 15 of the ASCM because such 
determination covers both subsidized imports and non-subsidized imports.  WT/DS436/1 
 G/L/987 
 G/SCM/D89/1 
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  (iii) The demonstration of causal link is incons istent with Article 15.5 of the ASCM 
because the United States did not segregate inju ry caused due to factors other than the 
subsidized imports. 
(f) In connection with other issues: 
(i) The application of the 'adverse facts availa ble' standard in determining the subsidy 
margin, is inconsistent with Article 12.7 of the ASCM. 
(ii) The inclusion of new subsidies in an admi nistrative review is inconsistent with 
Articles 11, 21, 22.1 and 22.2 of the ASCM.    
(iii) The failure to invite India for consultatio ns before including New Subsidy Allegations 
within the scope of the Administrative Review s, is inconsistent with Articles 13.1 and 
13.2 of the ASCM. 
(iv) The amount of countervailing duty applied is  inconsistent with Articles 19.3 and 19.4 
of the ASCM because it is not in appropriate amounts and is in excess of the amount 
of subsidy, if any. 
(v) As a consequence of the inconsistencie s mentioned above, the countervailing duties 
applied in this case are inconsistent with Ar ticle 10 of the ASCM and Article VI of the 
GATT 1994. 
5. India further considers that the measures at issu e have a serious adverse impact on the export 
of subject goods from India to the US. Further, pu rsuant to Article XXIII:1 of the GATT 1994, read 
with Article 3.8 of the DSU, India considers that the measures at issue cause nullification or 
impairment of benefits accruing to India under the GATT 1994.    
6. India reserves its right to raise additional claims and legal matters in relation to the measures 
at issue and their application, during the consultations. 
7. In view of the above, India looks forward to the reply from the United States within the 
prescribed time limit. India proposes that the date and venue of the consultations be mutually agreed.  
 
 
_______________ 
 WT/DS436/1 
G/L/987 G/SCM/D89/1 
Page 6 
  
  ANNEX – 1 
  
Original Investigation  
1. Preliminary Affirmative Countervailing Duty  Determination and Alignment of Final 
Countervailing Determination With Fina l Antidumping Duty Determinations:  Certain Hot-
Rolled Carbon Steel Flat Products From India :, 66 FR 20240-01, April 20, 2001. 
2. Issues and Decision Memorandum - Final Results of the Countervailing Duty Investigations: 
Certain Hot-Rolled Carbon Steel Flat Products From India , 66 ITADOC 49635, September 
21, 2001. 
3. Final Affirmative Counterva iling Duty Determination: Certain Hot-Rolled Carbon Steel Flat 
Products From India , 66 FR 49635-01, September 28, 2001.  
4. Injury Determination:  Hot Rolled Steel Products from China, India, Indonesia, Kazakhstan, 
Netherlands, Romania, South Africa, Taiwan, Thailand, and Ukraine , 701-TA-405-408 and 
731-TA-899-904 and 906-908, Pub. 3468, United States International Trade Commission, November 2001.  
5. Amended Final Results of Countervailing Duty Orders : Certain Hot-Rolled Carbon Steel Flat 
Products From India and Indonesia , 66 FR 60198-01, December 3, 2001.  
6. Countervailing Duty Order in the Investigation: Certain  Hot Rolled Carbon Steel Flat 
Products from India , January 8, 2002.  
Administrative Review: POR April 20, 2001 through December 31, 2002 
7. Preliminary Results of Countervailing Duty Administrative Review : Certain Hot-Rolled 
Carbon Steel Flat Products from India, 69 FR 907-01, January 7, 2004.  
8. Issues and Decision Memorandum - Final Results  of the Countervailing Duty Investigation:  
Certain Hot-Rolled Carbon Steel Flat Products From India, 69 ITADOC 26549, May 6, 
2004.  
9. Final Results of Countervailing Duty Administrative Review:  Certain Hot-Rolled Carbon 
Steel Flat Products from India, 69 FR 26549-01, May 13, 2004.  
Administrative Review: POR January 1, 2004 through December 31, 2004 
10. Preliminary Results of Countervailing Duty Administrative Review:  Certain Hot-Rolled 
Carbon Steel Flat Products from India, 71 FR 1512-01, January 10, 2006.  
11. Issues and Decision Memorandum - Final Results of Administrative Review of the 
Countervailing Duty Order :  Certain Hot-Rolled Carbon Steel  Flat Products from India, 71 
ITADOC 28665, May 10, 2006.  
12. 
Final Results of Countervailing Duty Administrative Review: Certain Hot-rolled Carbon 
Steel Flat Products from India , 71 FR 28665-01, May 17, 2006.  
Sunset Review 
13. Issues and Decision Memorandum - Final Results  of Expedited Sunset Reviews of the 
Countervailing Duty Orders:  Certain Hot-Rolled Carbon Steel Flat Products from Argentina, 
India, Indonesia, South Africa, and Thailand, 71 ITADOC 70960, December 7, 2006.   WT/DS436/1 
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  14. Final Results of the Expedited Five-Year (Sunset) Reviews of the Countervailing Duty 
Orders:  Certain Hot-Rolled Carbon Steel Flat Produc ts from Argentina, India, Indonesia, 
South Africa, and Thailand, 71 FR 70960-03, December 7, 2006.  
15. Injury Determination  - Hot Rolled Steel Products from China, India, Indonesia, Kazakhstan, 
Argentina, Romania, South Africa, Taiwan, Thailand, and Ukraine, 701-TA-404-408 and 
731-TA-898-902 and 904-908(Review), Pub. 3956, United States International Trade 
Commission, October 2007.  
16. Continuation of Antidumping Duty and Countervailing Duty Orders  - Certain Hot–Rolled 
Carbon Steel Flat Products from India, Indon esia, the People's Republic of China, Taiwan, 
Thailand, and Ukraine, 72 FR 73316-03, December 27, 2007.  
Administrative Review: POR January 1, 2006 through December 31, 2006 
17. Preliminary Results of Countervailing Duty Administrative Review: Certain Hot-Rolled 
Carbon Steel Flat Products from India , 73 FR 1578-02, January 9, 2008. 
18. Issues and Decision Memorandum - Final Results of Countervailing Duty Administrative 
Review: Certain Hot-Rolled Carbon Steel Flat Products From India , 73 ITADOC 40295, July 
7, 2008. 
19. Final Results of Countervailing Duty Administrative Review: Certain Hot-Rolled Carbon 
Steel Flat Products From India , 73 FR 40295-02, July 14, 2008. 
Administrative Review: POR January 1, 2007 through December 31, 2007 
20. Preliminary Results of Countervailing Duty Administrative Review: Certain Hot-Rolled 
Carbon Steel Flat Products from India , 73 FR 79791-01, December 30, 2008. 
21. Issues and Decision Memorandum - Final Resu lts of Countervailing Duty Administrative 
Review: Certain Hot-Rolled Carbon Steel Flat Products from India , 74 ITADOC 20923, 
April 29, 2009. 
22. Final Results of Countervailing Duty Administrative Review : Certain Hot-Rolled Carbon 
Steel Flat Products from India,  74 FR 20923-01 May 6, 2009. 
Administrative Review: POR January 1, 2008 through December 31, 2008 
 
23. Preliminary Results of Countervailing Duty Administrative Review: Certain Hot-Rolled 
Carbon Steel Flat Products from India,  75 FR 1496-01, January 11, 2010. 
24. Issues and Decision Memorandum - Final Resu lts of Countervailing Duty Administrative 
Review: Certain Hot Rolled Carbon Steel Flat Products from India , 75 ITADOC 43488, 
July 19, 2010. 
25. Final Results of Countervailing Duty Administrative Review – Certain Hot Rolled Carbon 
Steel Flat Products from India, 75 FR 43488-01, July 26, 2010. 
  
 
__________