Document: WT/DS206/R Page A-1 ANNEX A First Submissions by the Parties Contents Page Annex A-1 First Written Submission of India A-2 Annex A-2 First Written Submission of the United States A-54
Document codes: WT/DS206/R
Complainant: India
Respondent: U.S.
Third parties: Chile, EU, Japan
Dispute stage: Panel
Agreements cited: Art. VI:1, VI:2(a)  GATT 1994Art. 2.2, 2.4, 6.8, 9.3, 15, 18.4, Annex II  Anti-dumpingArt. XVI:4  Agreement Establishing the World Trade Organization

ANNEX A
First Submissions by the Parties
Contents Page
Annex A-1 First Written Submission of India A-2
Annex A-2 First Written Submission of the United States A-54

I. INTRODUCTION AND SUMMARY OF ARGUMENT
1. On 16 March 1999, the United States Depa rtment of Commerce (USDOC) initiated anti-dumping
proceedings against imports of cut-to-length carbon-qual ity steel plate (cut-to-length plate) from India.
USDOC followed this initiation with an anti-dumping investigation, culminating in a final anti-dumping
determination and an anti-dumping order published on 10 February 2000. The only Indian respondent
was the Steel Authority of India, Ltd. (SAIL). During the investigation, SAIL made strenuous efforts to
comply with the documentary and informational demands of USDOC, in particular with respect to data on
SAIL’s US sales. SAIL’s US sales data 1 were timely, verifiable and appropriately submitted, but
nevertheless were rejected by USDOC. Reacting to problems found with separately submitted
information relating to other facts (SAIL’s home market sales and cost of production), USDOC
unilaterally decided that SAIL had failed to cooperate. It then decided to reject all information submitted
by SAIL and instead have recourse to “total facts available” − thus arbitrarily assigning to SAIL the
highest dumping margin alleged by the petitioner, 72.49 per cent.
2. The result was predictable. In a rebuff to India’s attempts to make use of market access
opportunities provided by the Uruguay Round, these anti-dumping duties have effectively eliminated the
largest export market for Indian cut-to-length plate in the world. Indian exports of cut-to-length plate to
the US market have entirely ceased.
3. The arbitrary and unfair character of this US anti-dumping investigation, described at greater
length below, will be obvious to the Panel. India has brought this complaint because the application of
facts available in this case, as well as the statutory provisions that provided for this application of facts
available, violated the rights of India under the Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade (“AD Agreement”), Article VI of GATT 1994, and the WTO Agreement.
4. The purpose of an anti-dumping investigation is “ensuring objective decision-making based on
facts.”
2 This purpose means that dumping margins must be determined– not created. It requires a fair
measurement made in good faith. The investigating authority and the respondent must cooperate to
gather the facts necessary to measure the margin of dumping as defined by the AD Agreement. As the
Appellate Body recently found in its decision on United States – Anti-Dumping Measures on Certain Hot-
Rolled Steel Products from Japan, 3 such cooperation is “a two-way process involving joint effort.” 4 In
this process, the investigating authorities must “str ike a balance between the effort that they can expect
interested parties to make in responding to questionn aires, and the practical ability of those interested
parties to comply fully with all demands made of them by the investigating authorities.” 5 Guided by the
legal principle of good faith, the investigating authorities must not impose on exporters burdens which, in
the circumstances, are not reasonable. And they may not reject information submitted in good faith by a

1 As used herein, the phrase “US sales data” refers to data regarding the individual transactions by which
the foreign manufacturer/exporter (in this case, SAIL) exported the subject merchandise to the United States during
the relevant time period (the “period of investigation”). These data are used to calculate the “export price of the
product exported from one country to another,” in the sense of AD Agreement Article 2.1. A print-out of SAIL’s
final 1 September computer tabulation of its US sales data is set forth in Ex. IND-8.
2 United States – Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan ,
WT/DS/184/R (28 February 2001, adopted 23 August 2001) (“Japan Hot-Rolled Panel Report”), para. 7.55.
3 WT/DS184/AB/R, AB-2001-2, circulated 24 July 2001, adopted 23 August 2001 ( Japan Hot-Rolled AB
Report).
4 Id., para. 104.
5 Id., para. 101.

foreign respondent− information that is verifiable, timely submitted, in the requested computer format,
and usable without undue difficulties− simply because other categories of information have been deemed
inadequate. Arbitrary action of this nature is excluded by the text, context, object and purpose of the AD
Agreement, and interpretations of that agreement by panels and the Appellate Body.
5. USDOC’s refusal to use SAIL’s verified, ti mely produced and usable US sales information when
it calculated the final anti-dumping margin was an illegal, market-closing penalty that violated, inter alia,
Article 6.8 and Annex II, paragraph 3 of the AD Agreemen t. The facts show that SAIL’s US sales data
were timely submitted within USDOC’s deadlines; provided requested information in all categories
requested by USDOC for all US sales; were in a computer format requested by USDOC; and were
verified by USDOC. While verification revealed minor errors in certain characteristics of SAIL’s cut-to-
length plate, USDOC acknowledged in the verification report and in its final determination that these
errors were “in isolation susceptible to correction.”
6 Thus, between the time USDOC verified SAIL’s US
sales data in September 2000, and three months later when it issued the final determination on
29 December in which it refused to use the data, it had on the record complete, verified, and usable US
sales data. These record data showed that SAIL’s US prices were far higher than the US prices alleged in
the petition.
6. In its final determination, USDOC ignored the verified information on the record in favour of a
punitive “facts available” margin from the petition. Using the facts available as the basis for determining
SAIL’s US sales increased SAIL’s final anti-dumping margin to 72.49 per cent. This action nullified and
impaired India’s rights under AD Articles 2.4, 6.8, 9.3; paragraphs 3, 5 and 7 of AD Annex II; and GATT
Article VI:2.
7. USDOC also failed to make any determination whether SAIL had failed to act to the best of its
ability in producing the US sales data. Instead, USDOC made only a conclusory statement related to
SAIL’s overall data production. This failure to focus the analysis of SAIL’s “best efforts” on particular
categories of evidence such as SAIL’s US sales data is a violation of Annex II, paragraph 5. Even beyond
these errors by USDOC, no unbiased and objective investigating authority could have concluded that
SAIL failed to act to the best of its ability in producing US sales data that was verified, timely produced,
in the computer format requested by USDOC, and which even USDOC admitted “was susceptible to
correction” and which could be “usable” with “some revisions and corrections.”
8. USDOC rejected SAIL’s US sales data beca use sections 776(a), 782(d) and 782(e) of the Tariff
Act of 1930 as amended (codified at 19 U.S.C. §§1677e(a),1677m(d) and 1677m(e), respectively), as
interpreted by the authoritative Statement of Administrative Action, USDOC, and the United States Court
of International Trade (CIT), required USDOC to substitute use of the “facts available” for all
information actually submitted by a respondent, if a substantial portion of that information is determined
not to be verifiable, timely submitted or usable. This practice of substituting “facts available” for all
information submitted in an investigation, and assi gning a margin based on petitioner information, is
commonly known as “total facts available.” When SAIL sought judicial review of this determination, the
CIT affirmed the use of “total facts available” by USDOC in this case, and supported USDOC in rejecting
the US sales data because of problems with other data.
7

6 Final Determination, 64 Fed.Reg. 73126, 29 December 1999, India Exhibit 17 (“Ex. IND-17”), at 73127.
7 Steel Authority of India, Ltd., v. United States , CIT Slip. Op. 01-60 (22 May 2001) (“ SAIL v.
United States”), Ex. IND-20, at 14.

9. Sections 776(a) and 782(d) and (e) as such ( per se) violate Article 6.8 and Annex II, paragraph 3
of the AD Agreement. In combination they require the rejection of information submitted by a foreign
respondent that is verified, timely submitted and can be used without undue difficulty, unless USDOC
finds that “the information is not so incomplete that it cannot serve as a reliable basis for reaching the
applicable determination,”8 and that the interested party has “acted to the best of its ability in providing
the information” 9 These latter two conditions are impermissibly added to those found in Annex II,
paragraph 3 of the AD Agreement.
10. USDOC and the CIT have interpreted the phrase “so incomplete that it cannot serve as a reliable
basis for reaching an applicable determination” in section 782(e)(3) as mandating rejection of verified,
timely submitted and otherwise usable information. They reject such information where the foreign
respondent has not provided sufficient information on all of what USDOC terms the “essential
components of a respondent’s data: US sales; home market sales; cost of production for the home market
models; and constructed value for the US models.”
10 USDOC also rejects verified, timely submitted and
otherwise usable information unless the “interested party has demonstrated that it acted to the best of its
ability in providing the information and meeting the requirements established by [USDOC] with respect
to the information.”11 This proviso in section 782(e)(4) is applied over and above the four factors listed in
Annex II, paragraph 3. While a “best efforts” requ irement is found in different form in Annex II,
paragraph 5, the United States violates Annex II, paragraph 3 by merging the requirements of
paragraphs 3 and 5 together. Moreover, USDOC (affirmed by the CIT) has interpreted this phrase as
applying to a respondent’s conduct throughout the entire investigation, not in relation to particular
categories of information. The result of this improper interpretation is the mandatory rejection of some
verified, timely submitted and usable information because the respondent has failed to demonstrate to
USDOC’s satisfaction that it acted to the best of its ability in providing other information.
11. Finally, USDOC violated AD Article 15 by failin g to give special regard to SAIL’s status as a
developing country producer, and by levying final an ti-dumping duties without exploring the possibility
of an alternative constructive remedy such as a price undertaking or a lesser duty. SAIL submitted a
written proposal to USDOC on 30 July 1999 for an undertaking (termed a “suspension agreement” in US
law). But there is nothing in the record indicating that USDOC ever responded. Nor is there any
evidence that USDOC explored with SAIL any possibilities of other constructive remedies.
12. To sum up, USDOC’s application of “total facts available” − rejecting the facts of SAIL’s US
sales and substituting fiction in their place − distorted the measurement of dumping in this case and made
a huge difference in the final dumping margin. Even using facts available from the petition for SAIL’s
home market sales, cost of production for home market sales, and constructed value, the use of actual
verified US sales data would have resulted in a much lower dumping margin. Yet USDOC decided, at the
insistence of the US domestic industry petitioners, to use “facts available” instead of SAIL’s US sales
data. The resulting margin of 72.49 per cent was fundamentally unfair and inconsistent with
United States’ duty to interpret and apply its WTO obligations in good faith.

8 Section 782(e)(3), Ex. IND-26.
9 Section 782(e)(4), Ex. IND-26.
10 Final Determination, Ex. IND-17, at 73130.
11 Section 782(e)(4), Ex. IND-26.

II. KEY ISSUES IN THIS DISPUTE
1. Whether a permissible interpretation of Article 6.8 and Annex II, paragraph 3 of the AD
Agreement allows investigating au thorities, in calculating dumping margins, to reject verifiable
and timely submitted information produced by foreign respondents that is in the requested
computer format and is usable without undue difficulties.
2. Whether an objective and non-biased investigating authority could have concluded that
the US sales data submitted by SAIL to USDOC did not meet the four conditions of Annex II,
paragraph 3 of the AD Agreement.
3. Whether an objective and non-biased investigating authority could have concluded that
SAIL did not act to the best of its ability, as set forth in Annex II, paragraph 5 of the AD
Agreement, in submitting US sales data to USDOC.
4. Whether it is a violation of Article 6.8 of the AD Agreement read together with Annex II,
paragraphs 3 and 5 for sections 776(a), 782(d) and 782(e) of the Tariff Act of 1930 to require
USDOC to reject information otherwise acceptable under paragraphs 3 and 5 where a foreign
respondent does not provide other usable information requested by USDOC.
5. Whether USDOC violated Article 15 of the AD Agreement by failing to explore the
possibility of constructive remedies before levying final anti-dumping duties on imports of cut-to-
length plate from SAIL.
12
III. STATEMENT OF FACTS
A. PROCEDURAL HISTORY
13. USDOC initiated the dumping margin calculation phase of the investigation of cut-to-length plate
from India by publishing a notice of initiation on 16 March 1999 in the US Federal Register. 13 T h e
investigation was conducted under the US anti-dumping statute 14 and the related regulations of the US
Department of Commerce. 15 On 29 December 1999, USDOC published its final anti-dumping
determination on cut-to-length plate from, inter alia , India. 16 Final anti-dumping duties were imposed
pursuant to an anti-dumping order published in the Federal Register on 10 February 2000.17
14. On 4 October 2000 India requested consultations with the United States pursuant to Article 4 of
the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), Article XXII of
the GATT 1994 and Article 17 of the AD Agreement, concerning, inter alia , the United States anti-
dumping investigation on cut-to-length plate from India and the levying of anti-dumping duties on that

12 India is no longer pursuing the following claims set forth in its request for establishment of the panel:
claims under AD Agreement Article 6.13; and claims under AD Agreement Articles 6.6 and 6.8 and Annex II,
paragraph 7 regarding failure to exercise special circumspection in using information supplied in the petition.
13 Notice attached as Ex. IND-2.
14 Title VII of the Tariff Act of 1930, as amende d; codified in US C ode at 19 U.S.C. §1673 et seq; relevant
sections attached as Ex. IND-26.
15 Title 19 of the Code of Federal Regulations (19 CFR), sections 351-357.
16 Ex. IND-17.
17 Ex. IND-18.

product.18 Consultations took place in Geneva on 21 November 2000. Since the consultations failed to
settle the dispute, India, pursuant to Articl e XXIII:2 of GATT 1994, Article 6 of the DSU, and
Article 17.4 of the AD Agreement, requested the establishment of a panel on 7 June 2001. The panel was
established on 20 July 2001 and was composed on 26 October 2001. 19 Its organizational meeting took
place on 5 November 2001.
B. USDOC’S INVESTIGATION OF CUT-TO-LENGTH PLATE FROM INDIA
15. On 16 February 1999, the US Steel Group, Beth lehem Steel, Gulf States Steel, Ipsco Steel,
Tuscaloosa Steel and the United Steel Workers of America submitted a petition for imposition of anti-
dumping duties on certain cut-to-length carbon steel plate from India.
20 The petition alleged a dumping
margin of 44.51 per cent, based on a comparison between the US price of the product and the home
market price for a similar product. The US price was based on a single offer from an unrelated trading
company, for plate produced by SAIL; the alleged home market price was based on a market research
report, and was a single average figure.
21 The petition also presented a single alleged cost of production
figure for all types of Indian cut-to-length plate regardless of thickness or width, calculated by adjusting
the production costs of a US producer of plate for known differences between the US and Indian
production costs. The petition alleged that Indian home market prices were below cost, based on a
comparison of the market research report home market price with the calculated cost of production.22 The
petition then presented a constructed value for Indian plate, calculated by applying a profit figure to the
cost of production figure. It alleged a dumping margin of 72.49 per cent based on a comparison of that
constructed value with the same single offer of sale to the United States. On this basis, the petition
requested a cost of production investigation of all I ndian steelmakers who exported cut-to-length plate to
the United States.
16. USDOC initiated its anti-dumping investigation of cut-to-length steel plate from India on 16
March 1999.23 On the next day, USDOC issued its questionnaire to SAIL. 24 The first required response
was to the so-called “mini-Section A”, in which USDOC requested basic corporate information and data
regarding SAIL’s aggregate sales of the subject merchandise to the United States and home market.
SAIL responded to the mini-Section A questionnaire on 12 April 1999. 25 On 26 April 1999, SAIL timely
provided its full (735-page) response to Section A of the questionnaire, which covered topics such as
corporate organization and affiliations, merchandise produced, and sales and distribution processes for
customers in the United States and home market.26
17. SAIL produces the plate subject to the investigation in three quasi-independent plants, and has six
regional sales offices and 42 local sales offices.
27 At the time of the investigation, the plants each had
different accounting systems, calculated standard costs differently, and tracked costs differently. 28

18 WT/DS206/1, 9 October 2000, attached as Ex. IND-22.
19 WT/DS206/3, 31 October 2001.
20 Excerpts from public (non-confidential) version of the petition attached as Ex. IND-1.
21 Ex. IND-1, at 9 and 14-15.
22 Ex. IND-1, Exhibit 17, p. 15, item 7.
23 Notice attached as Ex. IND-2.
24 Excerpts from USDOC questionnaire to SAIL attached as Ex. IND-3.
25 See SAIL case brief to USDOC at 4 (12 Nov. 1999), Ex. IND-14; SAIL moving brief to USCIT in SAIL
v. United States, at 11 (15 Sept. 2000), Ex. IND-19.
26 Id.
27 See Ex. IND-6 at 2; Ex. IND-19 at 34.
28 See Ex. IND-15 at 33-34.

Telephone problems in India meant that the three plants were sometimes inaccessible by phone, fax or
email for days on end. Computers and photocopiers were, of course, in short supply. 29 Despite these
handicaps, SAIL cooperated fully with the USDOC dumping investigation, submitting thousands of pages
of documents, opening its doors for verification and investing substantial resources in responding to
USDOC data demands on a tight time schedule.30
18. On 10 May 1999, SAIL filed its (341-page) response to the remaining sections of the
questionnaire, consisting of Section B (home market sales), Section C (US sales), and Section D (cost of
production and constructed value).
31 At that time, SAIL also notified USDOC that, because its records
were maintained in many locations throughout India, it was still in the process of compiling some of the
requested data.32 None of these data-collection issues identified by SAIL, however, concerned its US sales
data or that portion of its questionnaire response. 33 On 11 May, SAIL submitted a computer disk
containing its sales and cost data, accompanied by sample computer printouts. 34 On 20 May, SAIL
supplemented its Section A response with a 57-page filing.
19. Section C of the questionnaire issued by USDOC on 17 March 1999 focused exclusively on
SAIL’s US sales, and asked SAIL to provide computer data (in database format) and a narrative
discussion regarding each of certain specified aspects of those sales.
35 The “Computer File of US Sales”
was to contain each transaction involving the subject merchandise made during the period of investigation
(calendar year 1998). 36 For each invoice line item (each unique product included in an invoice), SAIL
was required to provide a corresponding “record” in the computer database.37 Each record was to include
many “fields,” each of which would contain a specific information item concerning such matters as the
physical characteristics of the product sold, the terms of the sale, and the selling expenses incurred.
20. The questionnaire listed 76 different “fields” or items of information to be provided for each
reported transaction as relevant.
38 SAIL’s first computer tape on May 11 had information concerning 23
of USDOC’s 76 possible fields that SAIL indicated to USDOC that it believed were relevant to SAIL’s
US sales.
39 SAIL’s questionnaire response and the electronic database SAIL provided at that time
included information responding to these 23 fields for all its US transactions.
21. On 27 May 1999, USDOC issued its first supplemental questionnaire to SAIL, noting concerns
regarding the completeness of SAIL’s response and the methodology used by SAIL to report its product-
specific costs of production. 40 Only a very few questions in this supplemental questionnaire addressed
SAIL’s US sales database or its response to Section C of the questionnaire. On 2 and 8 June 1999, SAIL
filed a letter 41 and a lengthy submission, respectively, describing the logistical problems it faced in
compiling some of the information requested by USDOC (regarding costs of production and home market

29 Id.; Ex. IND-21 at 8.
30 USDOC hearing transcript, Ex. IND-16, at 33-34.
31 Copy of SAIL Section C questionnaire response attached as Ex. IND-4.
32 Ex. IND-4, cover letter from John Greenwald to Robert S. LaRussa, 11 May 1999, at 2.
33 Id.
34 Ex. IND-4 at C-53.
35 Ex. IND-3 at C-2-C-40.
36 Id. at C-1.
37 Id.
38 Id. at C-2-C-40.
39 EX. IND-4 at C-2-C-53.
40 Ex. IND-5.
41 Ex. IND-6.

sales), and the manner in which SAIL normally mainta ined its cost data. None of the problems pointed
out in the letter or submission concerned SAIL’s US sales data.
22. On USDOC’s deadline of 11 June 1999, SAIL submitted its (306-page) response to the
supplemental questionnaire – including its response to the small number of questions addressing US
sales.
42 USDOC issued a second supplemental questionnaire on the same day, 11 June 1999. This
questionnaire contained no questions addressing specifically SAIL’s US sales database, but only cost of
production, home market sales, and product classification and coding issues. 43 SAIL filed its initial
response to this supplemental questionnaire on 16 June 1999 and on the same day also filed a revised US
sales computer database containing information on an additional field for a total of 24 fields.
23. SAIL submitted another version of the US Sales database on 16 July, adding four additional fields
at the request of USDOC, for a total of 28 fields, and also revising some of the data previously submitted.
On August 17 it made further small changes to the US sales computer tape but added no additional fields.
SAIL submitted a final version of the US sales database including some additional revisions, on
1 September, the first day of verification, along with the correction of “minor errors” routinely requested
by USDOC at the commencement of its verifications.
24. The data on all of SAIL’s US sales computer tapes showed that there were only nine contracts
covering SAIL’s sales of the subject merchandise to the United States during the time period of the
investigation (calendar year 1998). 44 Each of those nine contracts was fulfilled through multiple
shipments/invoices, and each shipment may have included one or more “products” as defined by USDOC
– i.e., a quantity of cut-to-length plate with specific physical dimensions, quality, grade, etc. As noted
above, USDOC required SAIL to report each of those shipments of each product in a separate line (or
“observation”) in the computer database.45 SAIL complied with this request, with the result that SAIL’s
US sales database consisted of 1284 observations. Thus, the information “matrix” that SAIL ultimately
was required by USDOC to complete and which SAIL in fact did complete in its computer databases
submitted from July through September consisted of 28 columns (or fields) for 1284 line items (or
observations).
46
25. SAIL’s US sales computer database included the following categories of information that were
ultimately verified for each of SAIL’s 1284 US sales during the period of investigation:
• Product code and control number
• Specifications and grade
• Quality
• Various physical characteristics such as nominal thickness
and nominal width
• Customer code

42 Copy of 11 June response by SAIL to questions concerning its US sales attached as Ex. IND-7. On
29 June 1999, SAIL supplemented this response with a 61-page submission on issues other than US sales, which
USDOC rejected as untimely; see Ex. IND-9 and Preliminary Determination, Ex. IND-11, at p. 41203.
43 See Ex. IND-14 at 6.
44 Id. at 6-7; Ex. IND-13 at 13.
45 Ex. IND-13 at 12-15.
46 Ex. IND-2; Ex. IND-4; Ex. IND-13, at 13.

• Sale invoice date
• Sale invoice number
• Date of shipment
• Date of receipt of payment
• Quantity (weight) of merchandise sold
• Gross unit price
• Inland freight from plant to port of exportation
• Brokerage and handling expense in India
• Destination
• Duty drawback
• Credit expenses
• Indirect selling expenses in India
• Inventory carrying costs in India
• Packing costs
• Variable cost of manufacturing
• Total cost of manufacturing47
26. USDOC issued four more supplemental questionnaires to SAIL in June, July, and August 1999.
None of these questionnaires included any questions addressing SAIL’s US sales database or its
Section C response.
27. Meanwhile, on 29 July 1999, USDOC issued its preliminary determination of sales at less than
fair value.
48 In that determination, USDOC concluded that it could not use any of SAIL’s submitted data,
and it therefore based its dumping margin determination on total facts available. 49 USDOC made no
specific determination regarding SAIL’s US sales database in the preliminary determination. Complaining
about SAIL’s failure to supply a consolidated elec tronic database for home market sales, USDOC found
that SAIL did not act to the best of its ability to provide the information requested, and USDOC
determined to employ adverse inferences in select ing the facts available to determine SAIL’s margin. 50
However, recognizing SAIL’s attempts to respond to the information requests, USDOC assigned SAIL
the average of the two estimated margins included in the petition, which was 58.50 per cent.51
28. In September 1999, USDOC conducted a 21-day ve rification of SAIL’s questionnaire responses –
nine days of cost verification and twelve days of sales verification – at several of SAIL’s plants and office
locations.52 SAIL made additional submissions on 1 September on the first day of verification consisting
of a revised US sales computer tape 53 and a 30-page submission of minor corrections on
1 September 1999, the first day of the sales verifi cation. SAIL also provided a 13-page submission of
minor corrections on the first day of the cost verification. 54 These submissions were in response to

47 See Ex. IND-3 at C-2-C-40.
48 Preliminary Determination, 64 Fed.Reg. 41202 (29 July 1999), Ex. IND-11.
49 Id. at 41204.
50 Id.
51 Id.
52 Ex. IND-13 at 1.
53 The printout of this computer database is attached as Ex. IND-8. SAIL’s US sales computer databases
filed on 16 July, 17 August, and 1 September all had 28 fields of information.
54 See Ex. IND-14 at 6.

USDOC’s request (which it routinely makes in all AD investigations) that the respondent commence
verifications with a presentation of “minor errors” that were discovered in its submitted data.55 Finally, on
22 September 1999, after the verifications were completed, SAIL submitted a copy of all the documents
collected by USDOC during the verifications, amounting to a total of 3345 pages.56
29. On 3 November 1999, USDOC issued its Sales Verification Report. 57 This verification report
confirms that SAIL’s US sales database provided a complete listing of its US sales transactions during the
period of investigation – i.e., that the transactions listed in SAIL’s computer database, pursuant to the nine
contracts, were the entire universe of shipments of the subject merchandise to the United States in that
time period. 58 The USDOC verifiers included documentation for all those contracts in Verification
Exhibit S-8.59 The report reflects that USDOC did not discover any unreported sales that should have
been included in the database. Specifically, USDOC repeatedly stated in the “Completeness” and
“Quantity and Value” sections of the US sales verification report that “We noted no discrepancies.”
60
30. The only error in SAIL’s US database that USDOC identified in its Sales Verification Report as
one of its “significant findings” related to SAIL’s incorrect reporting of one of the 28 fields of
information—namely the reported width of plate that was 96 inches wide. 61 USDOC requested
respondents to report width for individual transactions according to ranges of widths in inches. For
example, if a particular transaction involved cut-to -length plate with a width less than or equal to 36
inches, “A” would be reported in the PLWIDTHU fi eld. Likewise, if the merchandise in a given
transaction was of a width greater than 36 inches but less than or equal to 72 inches, “B” would be
reported in that field. In its series of width ca tegories, the boundary between categories “C” and “D” is
96 inches.62 SAIL’s error consisted of the fact that it coded all sales with a width equal to 96 inches under
category “D”, but USDOC’s definition of the categori es provided that “C” should be reported in the
PLWIDTHU field for merchandise with a width greater than 72 inches but less than or equal to 96 inches;
“D” should have been reported only for sales of merchandise with a width greater than 96 inches. 63
Because of the popularity in the United States of steel plate with a width of exactly 96 inches, a large
proportion of SAIL’s reported US sales transactions were affected– 984 of a total of 1284 observations
were reported with a “D” in the PLWIDTHU field, but should have had a “C”.64 The verification report of
3 November indicates that USDOC verifiers thoroughly investigated the width reporting error once it was
discovered, and determined its scope. 65 They “checked multiple instances of this coding error,” and

55 See USDOC sales verification outline, attached as Ex . IND-12, at 8, requesting SAIL to present “minor
changes, if any, to the responses resulting from verification preparation.”
56 See Ex. IND-14 at 7.
57 Ex. IND-13.
58 Id. at 12-15.
59 Included in Ex. IND-13.
60 Id. at 8, 9, 13, 14.
61 Id. at 5.
62 Id. at 12; Ex. IND-3 at C-10.
63 Id.
64 Ex. IND-13 at 5, 12. The reason for the coding error is discussed in detail at pp. 20-21 of the USDOC
hearing transcript, Ex. IND-15. SAIL’s home market record s were rounded off in millimetres, recording a 96-inch-
wide plate as a 2,438 mm plate. However, SAIL’s US reco rds were kept in tenths of millimetres, recording a 96-
inch-wide plate as a 2,438.4 mm plate. When the data were converted to the computer database for the purposes of
submission to USDOC, a uniform cutoff point of 2,438 mm was used for the database distinction between width
categories C and D. 96-inch plate was coded correctly as C for the home market but the additional 0.4 mm in the US
sales records put 96-inch plate into the D category in the US sales database.
65 Ex.IND-13 at 12.

concluded that it “appeared to be limited exclusively to products that had a width of 96 inches and to the
US database.”66 They also obtained a list of all the affected observations from SAIL. 67 This width coding
error could have been easily corrected, using data in the record for this investigation, through methods
routinely adopted by USDOC, such as the submission of a corrected database by the respondent company,
or the insertion of a few lines of programming code in the appropriate place in USDOC’s margin
calculation programme.
68
31. The few remaining errors discovered in SAIL’s US sales database by USDOC during the
verification were so insignificant that USDOC itself did not even mention them in the “Summary of
Significant Findings” at the beginning of the verification report. These errors consisted of:
(1) Over-reporting of the freight expense incurred in shipping the merchandise from the plant
to the port of export (Vizag). 69 This error not only was easily corrected by using data
gathered by USDOC at verification, but in an y event only hurt SAIL, by increasing the
dumping margins that would be calculated on the basis of this data.
(2) A small overstatement of the duty drawback earned by SAIL on the reported exports to
the United States (less than 0.4 percentage points as calculated by the verifiers) because
SAIL had erroneously included the entire amount of the drawback earned on the one
contract that included shipments to Canada.70 Again, this error would be easily corrected
through the submission of a corrected database, or the insertion of a line of programming
code in the appropriate place in the margin programme.71
(3) An overstatement of the estimated number of days that merchandise shipped to the
United States spent in inventory. 72 Thus, SAIL’s error was to overstate the time in
inventory (45 days as compared to 30 days). However, this error not only was easily
corrected by using the 30-day figure identified by the USDOC verifiers, but also would
have been irrelevant for the calculation of SAIL’s dumping margins. The US sales in this
case were so-called “export price” transactions (in which the foreign
manufacturer/exporter sells directly to an unaffiliated party before importation into the
United States), and when USDOC calculates dumping margins for export price
transactions, it does not deduct inventory carrying expenses incurred in the country of
export from US price.
73
(4) An understatement of the administrative charges incurred in the total labour cost per
metric ton for gas slitting. Since this item was an administrative charge, it is an indirect

66 Id.
67 Id.
68 The correction of the width miscoding through a simple revision of the USDOC computer programme is
discussed in detail in the affidavit of Albert Hayes, Ex. IND-24 (“Hayes Affidavit”).
69 Verification report, Ex. IND-13, at 30 (citing Verification Exhibit S-15).
70 Id. at 31-32.
71 Ex. IND-24 at para. 8.
72 Id. at 32. USDOC’s sales verification report states that SAIL claimed that “the most conservative date in
inventory [was] 45 days,” and then goes on to state that the verifiers noted that the number of days in inventory
appeared to be closer to the same number (45). This is an error on the part of USDOC’s report; the actual figure
identified by the USDOC verifiers was 30 days, not 45, as can be seen from the verification exhibits (S-15 and S-16)
cited at this point in the verification report.
73 Ex. IND-24 at para. 8.

selling expense. However, the US price in this case would have been calculated on the
basis of the export price, not a constructed export price, and so indirect selling expenses
of any sort were irrelevant.74
32. On 13 December 1999, USDOC issued a memorandum entitled “Determination of Verification
Failure”.
75 This Memorandum reviews six “deficiencies” in SAIL’s sales data and eight in its cost data.
Of these 14 “deficiencies,” only one concerned the US sales database: SAIL’s miscoding of transactions
involving merchandise with a width of 96 inches under category “D”, rather than “C”.76
33. The “Analysis” section of the Memorandum i ndicated that “while these [US sales data] errors, in
isolation, are susceptible to correction, when combined with other pervasive flaws in SAIL’s data, these
errors support our conclusion that SAIL’s data on the whole is unreliable.”77 It concluded, “The fact that
limited errors where [sic; were] found must not be viewed as testimony to the underlying reliability of the
[sic] SAIL’s reporting, particularly when viewed in context the [sic] widespread problems encountered
with all the other data in the questionnaire response.”78
34. On 29 December 1999, USDOC issued its final determination of sales at less than fair value. 79 In
the determination, USDOC again rejected SAIL’s submitted data in its entirety, and applied total facts
available.80 USDOC applied section 776(a) of the Tari ff Act of 1930 as amended (19 U.S.C.§1677e(a)).
As discussed below, section 776(a) mandates the use of “facts available” instead of information actually
submitted, if certain conditions are met; the only exception to this mandate is if the respondent meets all
five of the conditions enumerated in section 782(e) of the Tariff Act.81
35. The record shows that SAIL acted to the best of its ability in its efforts to prepare its home market
sales and cost databases, despite the difficulties it encountered and USDOC’s complaints regarding the
quality of the company’s data. SAIL faced enorm ous logistical problems in working to develop
responses to the voluminous data requests in USDOC’s questionnaires, partly due to the obvious fact that
the company is located in a developing country with unreliable communications and other severe
infrastructure limitations.
82 These problems are compounded by the fact that SAIL has numerous sales
and production facilities located throughout India, and the computer systems in the various locations are
not interconnected. 83 Many of its production records are maintained only in handwritten records,
requiring that, before submission to USDOC, they had to be converted to computerized format. 84
Nonetheless, SAIL undertook very significant efforts to submit data in the formats demanded by USDOC
(which do not coincide with the manner in which it maintains records in the normal course of business),
and, to the extent possible, within USDOC’s tight deadlines.
85

74 Id.
75 Ex. IND-16.
76 Id. at 3.
77 Id. at 5.
78 Id.
79 Ex. IND-17.
80 Id.
81 Text of statutory provisions attached in Ex. IND-26.
82 Ex. IND-14, Case brief, at 4-9; Ex. IND-15, Hearing transcript, at 33-34.
83 Ex. IND-13 at 1.
84 Ex. IND-14, Case brief at 4-9.
85 See generally Ex. IND-4, 6, 7, 8, 13, 14, 15, 19.

36. USDOC issued a number of supplemental que stionnaires to SAIL regarding the company’s home
market sales and cost of production data, in May through August 1999. Although at times SAIL missed
those deadlines, it repeatedly informed USDOC that it was striving to submit the demanded information
as promptly as possible, and explained in detail the logistical difficulties that it confronted. 86 Indeed,
SAIL apprised USDOC of the problems it faced as early as 2 April 1999, when it was still struggling with
the response to the initial questionnaire, and it repeated those concerns in submissions to USDOC on
10 May and 2 June. 87 Moreover, USDOC personnel were made very aware of SAIL’s problems with
equipment, resources, and infrastructure during the on-site verifications in September 1999, during which
they visited several of SAIL’s facilities in India.88 Despite these problems, SAIL submitted thousands of
pages of information and documents in response to USDOC’s multiple supplemental questionnaires, as
well as repeated resubmissions of its electronic databases.89
37. In its case and reply briefs filed with USDOC on 12 and 17 November , SAIL admitted that there
were difficulties in verifying the accuracy of its home market sales and cost of production data, but
argued that its US sales data were verified without significant problems and should be used as a basis for
calculating the final anti-dumping duty margin. 90 SAIL argued that USDOC verified the underlying
accuracy of SAIL's books and records and also verified plant-specific average costs. 91 Therefore,
USDOC had a reliable basis from which to determine the relevant costs of the products sold to the United
States; extrapolating from this reliable informati on, USDOC could determine that SAIL's margin would
be in the range of zero to 1 per cent (i.e. de minimis).92 SAIL proposed that the Department compare its
US sales data to the average of the normal value and constructed value alleged in the petition.93 Using the
verified US sales data with partial facts available for the missing data would ensure the most accurate
measurement of the actual dumping margin.
94 SAIL invoked paragraph 5 of Annex II of the AD
Agreement, which provide that where a party acts to the best of its ability, its information should not be
disregarded even though the information is not ideal in all respects.95
38. The USDOC final determination nevertheless determined that the information collected was
“unusable”96 and that section 776(a) mandated use of “facts available” because:
• computer and other problems with SAIL’s home market sales and cost of production databases
meant that SAIL had withheld information requested by USDOC;
• SAIL’s problems assembling the home market sales and cost data demonstrated that SAIL had
failed to provide information by the deadlines or in the form or manner requested; and

86 Id. at 7; Ex. IND-19, SAIL moving brief to USCIT in SAIL v. United States, at 31-34.
87 Ex. IND-14, Case brief at 8; Ex. IND-6, SAIL letter to USDOC.
88 Ex. IND-13 at 1-2.
89 Ex. IND-14, Case brief at 6-8.
90 Id., Case brief at 17.
91 Id., Case brief at 8-9.
92 Id., Case brief at 13-14.
93 Id., Case brief at 14.
94 Id., Case brief at 9-14.
95 Id., Case brief at 21.
96 Ex. IND-17 at 73131.

• the problems found at the sales verification (all of which related to the home market sales
database, except for the width coding error discussed above) meant that information that had been
provided could not be verified.97
USDOC went on to find that the exceptions in section 782(e) to the use of “facts available” did not apply,
because:
• SAIL had not met USDOC questionnaire response deadlines, in particular for SAIL’s home
market cost of production data;
• USDOC was not able to verify SAIL’s questionnaire responses because the home market and cost
databases contained significant errors;
• the fact that SAIL’s home market sales and cost databases could not be verified meant that there
was no basis for determining a dumping margin;
• problems with SAIL’s home market sales data indicated that SAIL had not acted to the best of its
ability to provide accurate and reliable data to USDOC; and
• “the US sales database contained errors that, while in isolation were susceptible to correction,
however when combined with the other pervasive flaws in SAIL’s data lead us to conclude that
SAIL’s data on the whole is unreliable. As a result, the Department does not have an adequate
basis upon which to conduct its analysis to determine the dumping margin and must resort to facts
available pursuant to section 776(a)(2) of the Act.”
98
39. The notice stated that “[i]t is the Department’s long-standing practice to reject a respondent’s
questionnaire response in toto when essential elements of the response are so riddled with errors and
inaccuracies as to be unreliable.”
99 Thus, USDOC refused even to consider using the US sales data,
merely because of problems (including computer formatting) that had occurred in SAIL’s other data on
home market sales and costs of production. USDOC stat ed: “The Department's long-standing practice of
filling in gaps or correcting inaccuracies in the information reported in a questionnaire response, often
based on verification findings, is appropriate only in cases where the questionnaire response is otherwise
substantially complete and useable. . . . To properly conduct an anti-dumping analysis which includes a
sales-below-cost allegation, the Department must analyze four essential components of a respondent's
data: US sales; home market sales; cost of production for the home market models; and constructed value
for the US models. Yet SAIL has not provided a useable home market sales database, cost of production
database, or constructed value database.”
100
40. USDOC went on to determine that SAIL “did not cooperate to the best of its ability,” because of
the problems with SAIL’s data and computer tapes. It decided to use an “adverse inference” under
section 776(b), and assigned a margin rate of 72.49 per cent, the highest of the margins alleged in the
petition, as facts available.101

97 Id. at 73127.
98 Id.
99 Id. at 73130.
100 Id.
101 Id. at 73131.

C. POST-DETERMINATION PROCEEDINGS
41. On 10 February 2000, the US International Trade Commission issued a notice of its
determination of material injury by reason of imports of CTL plate from India and other countries
(France, Indonesia, Italy, Japan and Korea) that had been found by USDOC to be sold in the
United States at less than fair value.
102 On the same day USDOC amended its final determination and
issued the anti-dumping order.103
42. SAIL then appealed the final determin ation to the US Court of International Trade. 104 S A I L
argued that USDOC should not have used facts available in place of its reported US sales data.105 Instead
of total facts available, USDOC should have used facts available only with regard to the information other
than the US sales data. 106 SAIL argued that section 782(e), which requires consideration of “information
that is submitted” if it satisfies certain requirements, applies to particular categories of information (such
as the US sales data), as separate and distinct submissions of information. 107 SAIL also argued that its
inability to supply complete responses to the USDOC questionnaires was due to difficulties in compiling
data, that it had in fact acted to the best of its ability, and that USDOC therefore erred in applying adverse
inferences under section 776(b). 108 USDOC argued in response that it had a “long standing practice” of
using total facts available when “essential components of the response” are inaccurate or unreliable, and
that it had “disregarded all the responses in order to calculate what it considered a more accurate dumping
margin.”109 USDOC also argued that SAIL’s failure to fully comply itself merited application of adverse
inferences, and that the term “information” in section 782(e) meant all submitted responses by an
interested party, not just a category within the responses.110
43. The result of the litigation was largely dictated by the standard of review imposed by US law on
CIT reviews of determinations by USDOC. The court de termined that section 782(e) did not provide any
guidance on the meaning of “information,” and upheld USDOC’s interpretation as a “reasonable
construction of the statute” and consistent with USDOC’s “long standing practice of limiting the use of
partial facts available.”
111 The court upheld the decision to apply “total facts available” as supported by
“substantial evidence in the record,” on the basis of USDOC assertions that there were deficiencies which
“cut across all aspects of SAIL’s data,” an d because SAIL had not met USDOC deadlines. 112 However,
the court found that if a respondent, like SAIL, claime d an inability to comply with USDOC information
demands, in order to apply adverse inferences USDOC could not simply conclude that mere failure to
supply the information constituted a failure to act “to the best of its ability.” 113 Rather, USDOC had to
conclude that the exporter actually had the ability to comply with the request for information, but did not
do so. USDOC had made no finding that SAIL refused to cooperate or could have provided the

102 65 Fed. Reg. 6624 (USITC 10 February 2000). See Certain Cut-to-Length Carbon Steel Plate from
France, India, Indonesia, Italy, Japan, and Korea , Inv. Nos. 701-TA-387-391 (Final), USITC Pub. No. 3273
(Jan. 2000), ftp://ftp.usitc.gov/pub/reports/opinions/PUB3273.PDF.
103 65 Fed. Reg. 6585 (USDOC 10 February 2000), Ex. IND-18.
104 Ex. IND-19.
105 Id. at 23-28.
106 Id.
107 Id. at 16-23.
108 Id. at 10, 29-34.
109 SAIL v. United States, Ex. IND-20, at 7.
110 Id., at 9.
111 Id., at 11-13.
112 Id. at 13-14, quoting USDOC.
113 Id. at 18-19.

information requested but did not. 114 The issue was remanded to USDOC so that it could make specific
findings or otherwise reconsider its decision to apply an adverse inference in choosing the basis on which
to calculate a dumping margin.115
44. On 27 September 2001, USDOC issued its redetermination responding to the remand. 116 USDOC
again determined that adverse inferences were appr opriate, but revised the basis for the determination.
USDOC found that during the investigation, SAIL had assured USDOC that it could correct the problems
in its data submissions, and again pointed to late submission of the data on home market sales and
problems with the home market sales and cost databases. 117 U S D O C a r g u e d t h a t S A I L i s a l a r g e
company with audited financial statements, owned by the Indian Government, which could comply with
the information requests.118 USDOC found that using partial facts available would allow a respondent to
control the outcome of an anti-dumping investigation by selectively responding to questionnaires.119
45. The dumping margin of 72.49 per cent remains unaltered. Exports by India of cut-to-length plate
continue to be foreclosed from the US market.
IV. STANDARD OF REVIEW
46. The Panel’s task in this dispute will require application of the standard of review for disputes
involving facts and legal interpretations by anti-dum ping authorities, under the AD Agreement. Essential
guidance for such disputes has been provided by the Appellate Body in its Japan Hot-Rolled decision.
120
In that decision, the Appellate Body found that both Article 17.6(i) of the AD Agreement and Article 11
of the DSU are applicable in such disputes. Finding that both provisions require panels to “assess” the
facts, the Appellate Body said this “clearly necessitates an active review or examination of the pertinent
facts.” Noting the requirement in Article 11 for an “objective” assessment of the facts, the Appellate
Body stated that it is “inconceivable that Article 17.6(i) should require anything other than that panels
make an objective ‘assessment of the facts of the matter’.” 121 Thus, the Appellate Body concluded,
“panels must assess if the establishment of the facts by those authorities was proper and if the evaluation
of those facts by those authorities was unbiased and objective.”122
47. In its recent decision in United States – Transitional Safeguard Measure on Combed Cotton Yarn
from Pakistan, the Appellate Body provided the following summary of the standard for the panel’s review
under Article 11 of the DSU in assessing whether competent authorities complied with their obligations in
making their determination:
This standard may be summarized as follows: panels must examine whether the
competent authority has evaluated all relevant factors; they must assess whether the
competent authority has examined all the pertinent facts and assessed whether an
adequate explanation has been provided as to how those facts support the determination;

114 Id.
115 Id. at 15-19.
116 Ex. IND-21.
117 Id. at 10-12.
118 Id. at 4-5.
119 Id. at 12.
120 Japan Hot-Rolled AB Report, paras. 55-62.
121 Id., at para. 55.

and they must also consider whether the competent authority’s explanation addresses
fully the nature and complexities of the data and responds to other plausible
interpretations of the data. However, panels must not conduct a de novo review of the
evidence nor substitute their judgement for that of the competent authority.123
48. With respect to panel examination of inte rpretations of the AD Agreement, the Appellate Body
examined the criteria of Article 17.6(ii) and DSU Article 11 and found that both must be applied. The
Appellate Body concluded that “[n]othing in Arti cle 17.6(ii) of the AD Agreement suggests that panels
examining claims under that Agreement should not conduct an ‘objective assessment’ of the legal
provisions of the Agreement, their applicability to the dispute, and the conformity of the measures at issue
with the Agreement.”124 It found that under Article 17.6(ii) “panels are obliged to determine whether a
measure rests upon an interpretation of the relevant provisions of the Anti-Dumping Agreement which is
permissible under the rules of treaty interpretation in Articles 31 and 32 of the Vienna Convention,” and
“a permissible interpretation is one which is found to be appropriate after application of the pertinent
rules of the Vienna Convention.”125 According to the Appellate Body , “Article 17.6(ii) simply adds that
a panel shall find that a measure is in conformity with the AD Agreement if it rests on one permissible
interpretation of that Agreement.”126
49. This Panel should conduct an active review of the facts before USDOC pursuant to Article 11 of
the DSU and AD Agreement Article 17.6(i). In particular, it should examine in detail the facts regarding
SAIL’s US sales data and the extent to which the data met the four conditions of Annex II, paragraph 3,
and, if it deems necessary, the facts regarding SAIL’s best efforts and cooperation in supplying the US
sales information during the investigation. The Panel should also determine whether USDOC’s
interpretation of Article 6.8 and Annex II, paragraphs 3, 5, and 7 is permissible under the customary rules
of treaty interpretation, consistent with the Appellate Body’s ruling in Japan Hot-Rolled.
V. ANALYSIS OF ARTICLE 6.8, ANNEX II, PARAGRAPH 3 AND ANNEX II,
PARAGRAPH 5
50. The core legal issues in this dispute involve the interpretation of Article 6.8, Annex II,
paragraph 3 and Annex II, paragraph 5 of the AD Agreement. These provisions determine whether the
measures involved in this dispute– the final anti-dumping order and sections 776(a), 782(d) and 782(e) of
the Tariff Act of 1930 as amended–are WTO-compatible or not. India submits that the proper way to
interpret Article 6.8 and Annex II, paragraph 3 is that any category of information submitted by a
respondent that is verifiable, timely submitted, in the requested computer format, and can be used without
undue difficulty must be used by the investigating authorities in calculating an anti-dumping margin.
51. Contrary to USDOC’s practice of applying so-called “total facts available,” Annex II,
paragraph 3 mandates that any category of information which is submitted by a foreign respondent and
which meets this four-part test must be used by in vestigating authorities without regard to whether the
foreign respondent has submitted other categories of information that are not verifiable, not timely
submitted, not in the appropriate computer format, or not capable of being used without undue
difficulties. Nor can categories of information meeting the four conditions of Annex II, paragraph 3 be
rejected because of the actions of a foreign respondent in respect of other requested categories of

123 WT/DS192/AB/R, 8 October 2001 (Pakistan Cotton AB Report) at para. 74.
124 Japan Hot-Rolled AB Report, para. 62.
125 Id., para. 60.
126 Id., para. 62.

information − that is, on the basis that the respondent failed to act to the best of its ability, or did not
cooperate with the investigating authorities, in respect of other requested categories of information. This
interpretation is supported by the ordinary meaning of the text of Article 6.8 and Annex II, paragraph 3,
the context of other anti-dumping provisions, the object and purpose of the AD Agreement, and past
interpretations by panels and the Appellate Body.
52. Annex II, paragraph 5 applies if a particular category of information is not submitted within a
reasonable period, or is not completely verifiable, or is usable only if the investigating authorities must
spend days and weeks of additional work. In such cases, if a respondent acted to the best of its ability the
investigating authorities would be required to make more concerted efforts to make use of the information
provided by respondents. The phrase “best of its ability” necessarily requires a case-by-case analysis by
investigating authorities to judge the ability of particular respondents to provide particular category of
information within the required time and format.
A. THE ORDINARY MEANING OF ARTICLE 6.8 AND ANNEX II, PARAGRAPH 3, WHEN
READ IN THE CONTEXT OF OTHER AD PROVISIONS, REQUIRES INVESTIGATING
AUTHORITIES TO USE ANY INFORMATION SUBMITTED BY A RESPONDING
COMPANY THAT MEETS THE CONDITIONS OF ANNEX II, PARAGRAPH 3, FIRST
SENTENCE.
53. The ordinary meaning of Article 6.8 and Annex II, paragraph 3 supports an interpretation that any
verifiable and timely submitted categories of information that are usable without undue difficulty must be
used by investigating authorities. Article 6.8 provides as follows:
In cases in which any interested party refuses access to, or otherwise does not provide,
necessary information within a reasonable period or significantly impedes the
investigation, preliminary and final determinations, affirmative or negative, may be made
on the basis of facts available. The provisions of Annex II shall be observed in the
application of this paragraph.
54. As a panel recently found in the dispute on Argentina – Definitive Anti-dumping Measures on
Imports of Floor Tiles from Italy , “an investigating authority may disregard the primary source
information and resort to the facts available only under the specific conditions of Article 6.8 and Annex II
of the AD Agreement. Thus, an investigating authority may resort to the facts available only where a
party: (1) refuses access to necessary information; (ii) otherwise fails to provide necessary information
within a reasonable period; or (iii) significantly impedes the investigation.”
127 Article 6.8 ensures that an
investigating authority will be able to fill in gaps in an investigation and make determinations under the
AD Agreement on the basis of facts available even in the event that an interested party is unable or
unwilling to provide particular necessary information within a reasonable period.
128 However, as the
Appellate Body has found, if verifiable information that can be used without undue difficulties is supplied
“within a reasonable period”, “the investigating authorities cannot use facts available, but must use the
information submitted by the interested party.”129

128 Japan Hot-Rolled Panel Report, para. 7.51.
129 Japan Hot-Rolled AB Report, para. 77.

55. The text of Article 6.8 links to Annex II of the AD Agreement, stating that “[t]he provisions of
Annex II shall be observed in the application of this paragraph.” Paragraph 3 of Annex II, a key
provision regarding use of facts submitted, provides in relevant part:
All information which is verifiable, which is appropriately submitted so that it can be
used in the investigation without undue difficulties, which is supplied in a timely fashion,
and, where applicable, which is supplied in a medium or computer language requested by
authorities, should be taken into account when determinations are made.
56. The text of this paragraph provides that investigating authorities should take into account
information supplied by respondents if three, and, in some circumstances, four, conditions are satisfied.
Investigating authorities such as USDOC must use any– and all − categories of information that meet
these conditions. The Appellate Body held in Japan Hot-Rolled that “if these conditions are met,
investigating authorities are not entitled to reject information submitted, when making a
determination.”130 Examined below are the four relevant conditions of Annex II, paragraph 3.
1. “All information that is verifiable”
57. The term “verifiable” means “the fact of being capable of verification.” “Verification” is the
“action of establishing or testing the accuracy or correctness of something, esp. by investigation or by
comparison of data.” 131 Article 6.7 of the AD Agreement permits investigating authorities to “verify
information provided” by interested parties and Annex I of the Agreement provides for procedures for
conducting such verifications. The use of the term “verifiable” in Annex II, paragraph 3 signifies that
information must be capable of being verified – not actually verified by the investigating authorities. Yet
in this case, SAIL’s US sales of cut-to-length plat e were not only verifiable but actually verified by
USDOC, as detailed in section III above.
58. In two instances, panels have found that information was verifiable even though the investigating
authorities refused to accept or verify the information during the investigation. In Guatemala Cement II,
the investigating authorities were not able to veri fy information because Mexican respondents refused to
permit access to their confidential information by verification teams that included advisors connected
with the Guatemalan cement industry. The panel found that this refusal was justified because of the
existence of a conflict of interest on the part of those advisors.
132 After examining the evidence, the panel
found that even though the information in question was not verified, it was “verifiable” and should have
been used instead of facts available.133
59. Similarly, in Japan Hot-Rolled, the panel found that USDOC improperly rejected the theoretical-
to-nominal weight-conversion data submitted by NKK, one of the Japanese respondents, which was not
verified but was capable of being verified. The Panel found that USDOC improperly rejected information
that was submitted in “sufficient time to allow its verification and use in the calculation of NKK’s

130 Id., para. 81.
131 New Shorter Oxford English Dictionary, Clarendon Press, 1993. USDOC in Ex. IND-21 at 11, n. 4,
quoted the USCIT in Bomont Indus. v. United States, defining verification as follows: “Verification is like an audit,
the purpose of which is to test information provided by a party for accuracy and completeness. . . ”
132 Guatemala – Definitive Anti-Dumping Measures on Grey Portland Cement from Mexico ,
WT/DS/156/R, 24 October 2000 [Guatemala Cement II Panel Report], para. 2.273.
133 Id., at para. 2.274.

dumping margin.”134 Accordingly, the panel (as affirmed by the Appellate Body) held that USDOC had
improperly applied facts available under AD Article 6.8 because the conditions listed in Annex II,
paragraph 3 had been met.135
60. The ordinary meaning of the term “all information” in Annex II, paragraph 3 is that all
information submitted by interested parties meeting the conditions of Annex II, paragraph 3 must be
accepted and used by investigating authorities. The use of the expression “all information which” implies
there may be some other information provided by respondents that may not meet the conditions listed in
Annex II, paragraph 3. But there is nothing in the text of Article 6.8 or Annex II, paragraph 3 to suggest
that any category of information that meets those listed conditions can legally be rejected– as USDOC did
in this and many other cases since the WTO Agreement entered into force for the United States in 1995 −
because other submitted or non-submitted information does not meet those conditions.
61. As the Appellate Body indicated in Japan Hot-Rolled, the AD Agreement must be interpreted
taking into consideration the principle of good faith. This “organic principle of good faith” can, in
particular context, “restrain investigating authorities from imposing on exporters burdens which, in the
circumstances, are not reasonable.”
136 An interpretation of Annex II, paragraph 3 that would permit
rejection of a category of verified, timely submitted and usable information would not be consistent with
the principle of good faith because it would impose a significant penalty on respondents that did in fact
supply the information. The violation of this good faith principle becomes even clearer in light of AD
Article 15 when the usable, verified and timely submitted information that is rejected has been provided
by developing country respondents.
62. The context of Annex II, paragraph 3 also supports the interpretation that categories of
information meeting the criteria of that paragraph should be used by investigating authorities without
regard to the condition of other submitted or non-submitted information. For example, Annex II,
paragraph 6 provides that “if evidence or information is not accepted . . . the reasons for the rejection of
such evidence or information should be given in any published determinations.” This provision
contemplates the rejection of some information submitted– not the rejection of all information. Signif-
icantly, neither paragraph 6 nor any other provisi on of the AD Agreement authorizes the rejection of
categories of information meeting the conditions of Annex II, paragraph 3 simply because other
information did not meet those conditions.
63. Similarly, AD Article 6.7 anticipates that “information” can be verified by on-the-spot
investigation. Read in light of Annex II, paragraph 3, the fact that the authorities will seek to verify all
information submitted means that some of the information submitted may fail verification. Annex II,
paragraph 3 sets out the criteria for determining which information must be used by investigating
authorities and which can be rejected in favour of facts available. However, if some categories of
information fail verification, that fact cannot logically or textually mandate the rejection of other
categories of verified, timely submitted and usable information.
64. Annex II, paragraph 7 is also useful context for interpreting Article 6.8 and Annex II,
paragraph 3. Annex II, paragraph 7 focuses on some of the information submitted– not the entire mass of
information provided (or not provided) by the responding company during the investigation. The first

134 Japan Hot-Rolled Panel Report, para. 7.59.
135 Id., at para. 7.59.
136 Japan Hot-Rolled AB Report , para. 101 (applying principle of good faith in interpreting Annex II,
paragraph 7 of the AD Agreement)

sentence indicates that authorities may have to base their findings “on information from a secondary
source,” and “must check the information from other independent sources.” The immediate context for
Annex II, paragraph 7 is paragraph 6 which provides that “if information is not accepted, the supplying
party” should be informed of the reasons and “the reasons for the rejection of such evidence or
information should be given in any published determinations.”
65. The panel decision in Japan Hot-Rolled supports this interpretation. In that case, the
United States argued that the application of adverse facts available to a part of the sales of KSC, another
Japanese respondent, “was permitted under the AD Agreement, since KSC failed to act to the best of its
ability with regard to submitting the requested data concerning its sales through CSI, its US affiliate.” 137
The panel rejected this argument, finding that KSC had cooperated with the investigation. This
United States argument implicitly acknowledged that cooperation can be evaluated with respect to a
particular category of evidence submitted without regard to how the respondent cooperated with respect
to other evidence submitted. The same principle should apply here. Article 6.8 and Annex II, paragraph 3
should be interpreted so as to mandate the use of individual categories of information without regard to
other categories of information.
66. Decisions of earlier panels applying Article 6.8 and Annex II, paragraph 3 support the mandatory
acceptance by investigating authorities of verified, timely submitted, and usable information. Both the
Guatemala II and Japan Hot-Rolled panels focused on individual categories of information submitted by
foreign respondents – not the entire body of information submitted or requested. In Guatemala
Cement II, the panel found that Guatemalan investigating authorities improperly relied on facts available
for home market cost data for the entire period of investigation. The panel found that cost data submitted
by Mexican respondents met the conditions of Annex II, paragraph 3 for the period of the investigation
and part of the extended period of investigation (“POI”). The fact that Mexican respondents did not
provide any information on one period of the extend ed POI did not mean that Guatemala could reject
submitted information for other periods. Guatemalan investigating authorities were only entitled to use
facts available for that period of the extended POI for which the Mexican respondent submitted no cost
data.
138
67. Similarly, in Japan Hot-Rolled, the panel focused on narrow, individual categories of information
submitted by NKK concerning weight conversion factors. The panel did not examine the totality of the
information submitted in the investigation before deciding whether to apply Annex II, paragraph 3;
neither did the Appellate Body when it reviewed and affirmed the panel’s conclusions. Instead, both the
panel and the Appellate Body found that USDOC had violated Article 6.8 and Annex II, paragraph 3 by
failing to accept information submitted by NKK on weight conversion factors.
2. “Appropriately submitted so that it can be used in the investigation without undue
difficulties”
68. The ordinary meaning of the second condition of Annex II, paragraph 3 is that the information
must be provided at a time, in a format, and in a manner that makes it capable of being used by
investigating authorities without undue difficulties. There are many types of information that could be
“usable” to calculate dumping margins in an anti-dumping investigation: for instance, the prices obtained
for sales of the subject merchandise, selling expenses; freight and transportation expenses; conditions of
sale; relevant differences in physical characteristics of products sold in different markets; input costs;

137 Japan Hot-Rolled Panel Report, para. 7.65.
138 Guatemala Cement II Panel Report, para. 2.277.

interest, credit and inventory carrying expenses; profit amounts; and discounts, rebates and other price
adjustments.
69. It should be presumed that the phrase “appropriately submitted” is satisfied if the information is
provided in a manner or according to a methodology consistent with the basic questionnaire format set
forth by the investigating officials. For example, if a questionnaire asked for a respondent to provide data
for all of its US sales organized in a particular format, and the respondent provided data in that format, the
data must be presumed to have been “appropriately submitted.” The questionnaire instructions in the
investigation of cut-to-length plate from India requested construction of a database coded with specific
labels: for instance, a field labelled INLFPWU reporting the expense of the US inland freight from port to
warehouse, for each US transaction. SAIL’s inland freight data were presented in accordance with the
instructions and must be presumed to have been “appropriately submitted.”
70. The phrase “used in the investigation without undue difficulties” indicates that the information
provided may not be exactly in the format or be complete or accurate in all respects. The term “undue” is
defined as “going beyond what is warranted or natural, excessive, disproportionate.”
139 This definition
indicates that it is not enough for investigating authorities to conclude simply that individual categories of
submitted information contain errors or require some effort on the part of the authorities in order to be
usable to calculate the dumping margins. Rather, the authorities must make particular efforts to attempt
to use the information by correcting it, and only if its use presents “undue” difficulties may they reject it.
The “undue difficulty” language, and Article 6.8 itself, presume that information from responding
exporters is to be preferred over alternative sources. Article 6.8 and Annex II, paragraph 3 require
investigating authorities to make a case-by-case assessment for each category of information to determine
if they can use the information or make necessary corrections without unduly delaying or complicating
the investigation and their determination.
71. India submits that the panel should consider the following types of factors in determining whether
a particular categories of information submitted can be used without “undue difficulties:” (1) the
timeliness of the information submitted, (2) the ex tent to which the information submitted has been
verified or is verifiable; (3) the volume of the info rmation, (4) the amount of time and effort required by
the investigating authorities to make any corrections to information submitted to make it usable to assist
in calculating margins; and (5) whether other intere sted parties are likely to be prejudiced if the
information is used or corrected.
72. The fact that information has been provid ed in the format requested by the investigating
authorities and in a timely fashion, and has been verified, creates a strong likelihood that it can also be
used without undue difficulties. The “undue difficulty” element is relevant in situations where
information may be submitted at a later time such as during or immediately after verification; when
information is submitted to replace earlier submitted information that contained errors; or where the
information submitted contains errors that must be corrected by the investigating authorities.
73. Where there is a need for corrections discovered prior to or during verification, then the issue
becomes whether authorities should accept corrected information. This was one of the issues in Japan
Hot-Rolled. In other situations, investigating authorities may be able to correct the data themselves
through changing coding in the computer programme for calculating margins, or by other manipulations
of the database. It would be important for the auth orities (and panels reviewing their decisions) to make
an assessment of how much time and effort is required to correct the data. Much information submitted

139 New Shorter Oxford English Dictionary, Clarendon Press 1993.

by respondents to USDOC comes in the form of data submitted pursuant to agreed-upon methodologies
and formats. Where corrections could be made by simply changing a line of computer code and
calculating margins on the basis of the corrected data within a matter of minutes or even several hours,
then it would be hard to imagine how an investig ating authority could claim the information was not
usable without undue difficulties.
74. The two panels that have examined this el ement of the Annex II, paragraph 3 requirements did
not focus to any great extent on undue difficulties by the investigating authorities in using the
information. In Japan Hot-Rolled, the Japanese respondents NKK and NSC offered information shortly
before verification, to correct earlier submitted information on weight conversion factors. 140 The panel
appears to have found (or assumed) that these could be used without undue difficulties, since it noted that
(1) the new information did not concern such matters as prices, costs, or adjustments that had never
previously been provided and which would require extensive verification, and (2) it was presented within
sufficient time so as to not impede the ability of the investigating authorities to complete the
investigation.
141
75. In Guatemala Cement, the panel found that the Guatemalan authorities did not demonstrate that
the cost information provided by the Mexican respondent could not be used without undue difficulties,
noting that “there is no such explanation in the Ministry’s January 1997 resolution.”142
3. “submitted in a timely fashion”
76. The ordinary meaning of this third condition of Annex II, paragraph 3 was considered in the
Appellate Body’s decision in Japan Hot-Rolled. The Appellate Body concluded that this element should
be interpreted case by case, and stated as follows:
In sum, a “reasonable period” must be interpreted consistently with the notions of
flexibility and balance that are inherent in the concept of “reasonableness”, and in a
manner that allows for account to be taken of the particular circumstances of each case.
In considering whether information is submitted within a reasonable period of time,
investigating authorities should consider, in the context of a particular case, factors such
as (1) the nature and quantity of the information submitted; (ii) the difficulties
encountered by an investigated exporter in obtaining the information; (iii) the verifiability
of the information and the ease with which it can be used by the investigating authorities
in making their determination; (iv) whether other interested parties are likely to be
prejudiced if the information is used; (v) whether acceptance of the information would
compromise the ability of the investigatin g authorities to conduct the investigation
expeditiously; and (vi) the numbers of days by which the investigated exporter missed the
applicable time-limit.
143

140 Japan Hot-Rolled Panel Report, first submission of Japan paras. 98-99, panel findings paras. 7.33-7.34.
141 Id ., para. 7.55. While the panel mentioned these elements, it was not entirely clear whether it was
addressing the “timely fashion” or the “undue difficulty” factor and the Appellate Body noted that “USDOC was not
entitled to reject this information for the sole reason that it was submitted beyond the deadlines for responses to the
questionnaires.” Japan Hot-Rolled AB Report, para. 89.
142 Guatemala Cement II Panel Report, para. 2.277.
143 Japan Hot-Rolled AB Report, para. 85.

4. “supplied in a medium or computer language requested by the authorities”
77. The ordinary meaning of this phrase is that the information must be provided in the physical
medium (e.g. electronic files, computer tape, or floppy diskettes) specified by the authorities, or in a
computer language requested by the authorities. For instance, an anti-dumping authority could specify
that information be provided in a specified format required by database software it uses to calculate
margins. However, paragraph 3 goes on to provide that “[I]f a party does not respond in the preferred
medium or computer language but the authorities find that the circumstances set out in paragraph 2 are
satisfied, the failure to respond in the preferred medium or computer language should not be considered to
significantly impede the investigation.”
78. Paragraph 2 of Annex II provides more detail on the limits of the ability of anti-dumping
authorities to insist that responses be submitted in a specified computer medium or format. Whenever the
authorities make such a request, they must consider the reasonable ability of the respondent to respond in
the preferred medium or computer language and may not request a respondent to use for its response a
computer system other than that it otherwise uses. The authorities may not maintain a request for a
computerized response if the respondent does not maintain computerized accounts and if presenting the
response as requested would result in unreasonable extra burden on the respondent, such as unreasonable
additional cost and trouble. The authorities also may not maintain a request for a computerized response
in a particular medium or computer language if the respondent does not maintain its computerized
accounts in that medium or in that computer langua ge, and if presenting the response as requested would
result in unreasonable extra burden on the respondent, such as unreasonable additional cost and trouble.
79. Thus, if a respondent does not maintain its accounts in a specified computer language, and
presenting a response in that language would result in unreasonable additional cost and trouble, the anti-
dumping authorities may not insist that the res pondent do so. In that situation, the anti-dumping
authorities also may not have recourse to facts available under Article 6.8 by finding that the respondent
has significantly impeded the investigation by failing to respond in the preferred medium or computer
language. Read in context with the provisions of Article 15, paragraphs 3 and 2 require investigating
authorities to pay particular attention to the difficulties presented to firms from developing countries in
responding in a particular computer medium or format. However, whenever information has been
presented in the requested computer medium or format, and is verifiable, timely submitted and otherwise
usable without undue difficulty, it must be taken into account in the investigation.
5. Annex II, paragraph 5
80. Annex II, paragraph 5 states as follows:
Even though the information provided may not be ideal in all respects, this should not
justify the authorities from disregarding it, provided the interested party has acted to the
best of its ability.
81. The meaning of Annex II paragraph 5 must be examined in light of the immediate context of
Annex II, paragraph 3. Paragraph 5 functions as an additional safeguard to ensure that investigating
authorities attempt to use a particular category of information submitted by respondents before resorting
to facts available. Paragraph 5 only becomes applicable if a particular category of information submitted
does not meet the requirements specified in paragraph 3. Thus, if information is not submitted within a
reasonable period, or is not completely verifiable, or is usable only if the investigating authorities must
spend days and weeks of additional work, then paragraph 5 becomes applicable.

82. This sequenced approach to paragraphs 3 and 5 of Annex II is consistent with the decisions of the
two panels and the Appellate Body in interpreting Annex II, paragraph 3. The Guatemala Cement and
Japan Hot-Rolled panels did not find that information that met the conditions of paragraph 3 must also
meet the “best of its ability” requirements of paragraph 5. Instead, as the Appellate Body held in the
Japan-Hot-Rolled dispute, “according to paragraph 3 of Annex II, investigating authorities are directed to
use information if three, and, in some circumstances four conditions are satisfied” and “if these conditions
are met, investigating authorities are not entitled to reject information submitted, when making a
determination.”
144
83. The ordinary meaning of the phrase “may not be ideal in all respects” is that there may be a
particular category of information submitted by respondents that has flaws and imperfections but that it
must still be accepted if the respondent has used its best efforts in preparing and submitting that
information. Because paragraph 5 only applies if information does not meet the conditions specified in
paragraph 3, flaws that would make a category of in formation “not ideal” would include those creating
“undue difficulties” in paragraph 3. For example, if certain information were missing within a particular
category of information, it may not be possible to use the available information within that category
without some difficulty. The effort required to use such data may well rise above the level of the fairly
easy corrections that would take minutes or even a few hours to accomplish. In such cases, if a
respondent acted to the best of its ability the investigating authorities would be required to make more
concerted efforts to make use of the information provided by respondents.
84. The phrase “best of its ability” necessarily requires a case-by-case analysis by investigating
authorities to judge the ability of particular respondents to provide particular category of information
within the required time and format. A “best” effort by one respondent may not be a “best” effort by
another. In this connection, the panel may wish to c onsider the following types of factors in making this
determination: (1) whether the company operates in a developing country; (2) the extent of experience of
the company in earlier investigatio ns; (3) the level and extent of company personnel’s expertise in
handling anti-dumping investigations; (4) the number of plants and facilities involved; (5) the type and
extent of pre-existing computerization of documents and data; and (6) the extent to which the responding
company has been responsive to requests for inform ation by the investigating authorities during the
course of the investigation.
85. Articles 15 and 6.13 of the AD Agreement provide useful context for interpreting USDOC’s
obligations under Annex II, paragraph 5. Article 15 provides that “special regard must be given by
developed country Members when considering the application of anti-dumping measures under this
Agreement.” It suggests that the “best efforts” of developing country exporting respondents must be
evaluated with “special regard” by a developed country Member’s investigating authorities. Article 15
further demonstrates that USDOC must be flexible in assessing whether SAIL used its “best efforts” in
supplying the US sales data. Article 6.13 requires the authorities to “take due account of any difficulties
experienced by interested parties, in particular small companies, in supplying information requested” and
requires the authorities to “provide any assistance practicable.” Both of these provisions are premised on
the concept that, as the Appellate Body has recognized, cooperation is a two-way street. The authorities
must adapt themselves to the needs of the respondent too, and help the respondent respond. The
authorities are required to evaluate the “best efforts” of each respondent, taking that respondent’s
particular circumstances into account, and if a respondent has acted to the best of its ability, its data must
be taken into account even if imperfect.

144 Japan Hot-Rolled AB Report, para. 81.

86. The object and purpose of Annex II, paragraph 5 as suggested by its text and context are to ensure
that investigating authorities take every possible effort to use actual facts submitted by respondents before
resorting to “facts available.” It is consistent with this object and purpose to apply paragraphs 3 and 5 of
Annex II sequentially, and to require authorities to accept information even if it can only be used with
difficulty and take a flexible approach to assessing whether a respondent has acted “to the best of its
ability.”
B. THE OBJECT AND PURPOSE OF THE AD AGREEMENT SUPPORT INDIA’S
INTERPRETATION
87. One of the key principles governing anti-dumping investigations which emerges from the whole
of the AD Agreement is the “goal of ensuring objective decision-making based on facts.”
145 A n y
interpretation of the AD Agreement that requires or even permits investigating authorities to reject the use
of verified and timely submitted facts that can be used without undue difficulty is inconsistent with such
an object and purpose. This fundamental fact-gatheri ng aspect of anti-dumping procedures supports the
correct interpretation of the provisions of Annex II, paragraph 3 described above.
88. The object and purpose of the provisions of the AD Agreement on use of “facts available” are to
provide an investigative tool to find reliable information to fill essential gaps. It is not to punish
respondents who cannot provide the information requested; indeed, such punishment would be
inappropriate and unjustifiable. 146 This cooperative fact-gathering objective − rather than punishment,
deterrence, or policing− is reflected in Annex II of the Agreement. Annex II, paragraph 3 provides that
facts available ( i.e., facts not provided by the responding foreign company) may only be used if the
information provided is not verifiable, is not timely presented, and/or cannot be used without undue
difficulty. But even if particular evidence does not meet the requirements of Annex II, paragraph 3, an
investigating authority may not use facts available unless it makes a further finding consistent with
Annex II, paragraph 5 that the interested party has not acted to the best of its ability in providing less than
ideal information. Only at that point may investigating authorities have recourse to second-best
information not supplied by the responding companies.
89. Paragraph 7 of Annex II similarly requires investigating authorities to focus on reliable fact
gathering, not punishment. The entire thrust of the paragraph is that the authority must take special care
in choosing the facts available – in other words, to find and use the information that will most closely
reflect the amount of dumping that actually exists or not. This is why paragraph 7 calls on the authority to
use “special circumspection” in choosing facts available, and to “check the information from other
independent sources.”
90. The final sentence of paragraph 7 does not change this overriding purpose. The sentence merely
contemplates that if a party does not cooperate and withholds information, then a less favourable result
might occur than if the party had cooperated and did not withhold information. The language of
Paragraph 7 obviously draws a line between the party th at withholds and the party that does not. But in
all cases, the overriding purpose behind making such inferences is fact-driven: in other words, upon
applying special circumspection and checking the information against other information (as required by
paragraph 7), the authority may decide that the most reasonable and logical manner in which to deal with

145 Japan Hot-Rolled Panel Report, para. 7.55
146 See United States—Transitional Safeguard Measures on Combed Cotton Yarn from Pakistan ,

the absence of information is to use facts which might turn out to be less favourable to the respondent.
The purpose of paragraph 7 is to prevent, not to aut horize, anti-dumping authorities’ use of anti-dumping
laws to reach out and punish respondents for not providing information.
VI. ARGUMENT
A. THE FINAL AD ORDER LEVYING ANTI-DUMPING MARGINS OF 72.49 PER CENT ON
SAIL’S EXPORTS OF CUT-TO-LENGTH PLATE VIOLATES ARTICLES 6.6, 6.8, 2.2, 2.4,
9.3 AND ANNEX II, PARAGRAPHS 3, 5 AND 7 OF THE AD AGREEMENT
91. In this section of its First Submission, India sets forth the arguments relating to its claims
regarding the US AD order levying anti-dumping duties of 72.49 per cent against SAIL. These various
claims all involve the same information supplied by SAIL during the investigation – the information
relating to SAIL’s US sales. These claims also all involve USDOC’s application of its “total facts
available” practice, with the result that USDOC disregarded SAIL’s US sales data in favour of
information set forth in the petition.
1. USDOC improperly applied facts available in violation of AD Agreement Article 6.8 and
Annex II, paragraph 3 by rejecting timely, verifiable, and appropriately submitted US sales
data provided by SAIL
92. India’s first claim relates to a violation of Article 6.8 and Annex II, paragraph 3 through
USDOC’s decision to apply its long-standing practice of “total facts available” to reject SAIL’s US sales
data. As set forth above, an investigating author ity such as USDOC is required to accept any piece of
information – such as SAIL’s US sales data – if it is verifiable, submitted in a timely fashion, in the
requested computer format, and capable of being used without undue difficulties by USDOC. The facts
set forth show that all of these conditions were met with respect to SAIL’s US sales data. Based on the
evidence made available to USDOC during the investiga tion, this Panel should find that an unbiased and
objective investigating authority evaluating that evidence could not have reached the conclusion that
SAIL had failed to provide necessary information on its US Sales within a reasonable period. The Panel
should further find that USDOC acted inconsistent ly with Article 6.8 and Annex II, paragraph 3 in
applying facts available in calculating SAIL’s dumping margin.
(a) SAIL’s US sales database was timely submitted
93. As discussed above in paragraphs 18-25, SAIL’s US sales database, its responses to USDOC’s
questions on its US sales, and the corrections it provided to that data at the request of USDOC during
verification were “supplied in a timely fashion,” as required by Annex II, paragraph 3 of the AD
Agreement. For example, USDOC issued its first “supplemental questionnaire” to SAIL on
27 May 1999.
147 Only a few minor questions in this questionnaire concerned SAIL’s US sales database
and questionnaire response; its primary focus was on SAIL’s reported home market sales and cost of
production data.148 SAIL filed its response to the supplemental questionnaire by the 11 June deadline. 149

147 Ex. IND-5.
148 Id.
149 Ex. IND-7. Prior to this deadline, SAIL had also filed lengthy submissions with USDOC, detailing
difficulties it was having in gathering the necessary cost and home market sales data and organizing the data into the
format required by USDOC. However, none of the problems discussed by SAIL in those submissions concerned the
reporting of the US sales data. Ex. IND-6.

From June through August 1999 USDOC issued five more supplemental questionnaires, but none of these
raised any questions concerning SAIL’s US sales or its US sales database. Thus, USDOC’s actions
reasonably led SAIL to believe USDOC was satisfied with the US sales information as of 11 June, and
the US sales database submitted on 16 June.
94. Nothing in the record suggests that USDOC ev er determined that SAIL’s US sales data was not
timely submitted. USDOC did return some of SAIL’s other submissions of data as untimely filed, and in
the Final Determination USDOC referred to the untimeliness of some of SAIL’s submissions. 150 B u t
none of the issues mentioned by USDOC regarding SA IL’s untimeliness had anything to do with SAIL’s
US sales submissions. Instead, USDOC focused exclusively on SAIL’s data regarding home market sales
and cost of production. In addition, during the verification that was held in India between 30 August and
14 September 1999, USDOC reviewed SAIL’s US sales data, and requested that SAIL provide additional
information “corroborating” its submitted data. SAIL promptly supplied the requested information.
These actions further indicated that even USDOC considered that the US sales data were timely
submitted.
(b) SAIL’s US sales data were both verifiable and verified by USDOC
95. SAIL’s US sales database was not only “verifiable” within the meaning of that term in Annex II,
paragraph 3 of the AD Agreement, but it in fact was verified by USDOC with little difficulty. On
11 May 1999, SAIL submitted its initial US sales database in response to the questionnaire issued by
USDOC on 17 March 1999.151 As discussed above at paragraph 22, SAIL submitted another database on
16 June 1999. 152 USDOC later asked SAIL to provide info rmation on four additional fields, and SAIL
complied by filing a revised US sales database on 16 July 1999. Thereafter, USDOC accepted SAIL’s
28-field database as complete.
96. USDOC’s acceptance of the US sales database as verifiable is evidenced in the USDOC
memorandum on “Determination of Verification Failure,” issued shortly before the Final Determination
in December 1999.153 This Memorandum reviews six “deficiencies” in SAIL’s sales data and eight in its
cost data.154 Of all those “deficiencies,” only one concerned the US sales database– the miscoding issue
affecting sales of 96-inch plate discussed at paragraph 30 above. 155 The “Analysis” section of this
Memorandum in particular describes how insignificant the miscoding of 96-inch plate was. Nevertheless
USDOC demonstrated its hostility toward the possibility of accepting data that in themselves may be
usable in a situation where other submitted data are not. The Memorandum stated that “several errors
were described in the US sales database. While these errors, in isolation, are susceptible to correction ,
when combined with other pervasive flaws in SAIL’s data, these errors support our conclusion that
SAIL’s data on the whole is unreliable .”
156 It concluded, “The fact that limited errors where [sic; were]
found must not be viewed as testimony to the und erlying reliability of the [sic] SAIL’s reporting,
particularly when viewed in context the [sic] widespread problems encountered with all the other data in
the questionnaire response.”157

150 Ex. IND-9; Ex. IND-17 at 73127, 73128.
151 Ex. IND-4.
152 Ex. IND-7.
153 Ex. IND-16.
154 Id.
155 Id.
156 Id. at 5 (emphasis added).
157 Id. (emphasis added).

97. In other words, regardless of the ease with which SAIL’s submitted US sales data could have
been corrected and used, USDOC considered the US sale s data to be tarnished by “other pervasive flaws
in SAIL’s data” and “widespread problems” – i.e., flaws and problems in the home market sales and cost
databases, not in the US sales database. 158 Thus, the problems with SAIL’s home market sales and cost
databases were imputed to its US sales database, al lowing USDOC to conclude with a broad brush that
“SAIL’s data on the whole is unreliable.” Insofar as it is intended to apply to SAIL’s US sales database,
however, this conclusion is belied by the findings of USDOC itself – in the small number of errors
described in the verification report regarding SAIL’s US sales database, the ease with which that data
could have been corrected and used (as discusse d further below), and USDOC’s own acknowledgement
that the errors in the US database “are susceptible to correction.”159
98. Indeed, the best evidence of the completeness and verifiability of SAIL’s US sales database is the
verification report issued by USDOC after the completion of the verification.
160 F i r s t , a n d m o s t
importantly from USDOC’s perspective, the sales verification report confirms that SAIL’s US sales
database was a complete listing of its US sales transactions during the period of investigation – i.e., the
1284 transactions listed in SAIL’s computer database, pursuant to the nine contracts, comprised the entire
universe of shipments of the subject merchandise to the United States in that time period, and USDOC
did not discover any unreported sales that should have been included in the database.
99. Specifically, USDOC repeatedly stated in th e “Completeness” and “Quantity and Value” sections
of the verification report that “We noted no discrepancies” on the critical issue.
161 USDOC described the
process by which SAIL identified the relevant contracts for its sales to the United States during the period
of investigation on the basis of information maintained by the company in the normal course of business –
an important element of verification in USDOC’s eyes. 162 As noted above, there were only nine such
contracts, and USDOC’s verifiers included documentation for all those contracts in Verification Exhibit
S-8.163 In fact, USDOC’s discussion reveals the care with which SAIL handled the reporting of its US
sales, in that a portion of the merchandise shipped under one of its US export contracts was in fact
exported to Canada. SAIL properly excluded the quantity and value of the merchandise shipped to
Canada from its reported US sales transactions. 164 USDOC further examined the “completeness” of
SAIL’s reported US sales data by comparing the universe of reported sales against SAIL’s financial
documents.165 USDOC concluded that “Testing confirmed that all US sales contracts not reported were
either outside the POI or not of subject merchandise,” and it also noted that
We found no unreported or incorrectly reported sales in the US sales listing [i.e.,
database] while performing the completeness tests described above. . . . In addition,
during our review of detailed invoices covered by the contracts listed above, we found no

158 Id.
159 Id.
160 Ex. IND-13.
161 Id. at 12-15.
162 Id. at 14-15.
163 Id. at 13.
164 Id. at 13 (“The appropriate amount of Canadian sales within contract number 6159 was deducted from
the total quantity and value for the nine contracts . . . to reconcile SAIL’s records and the sales reported to the
Department.”) (citation omitted).
165 Id. at 12.

unreported sales and found that all sales of subject merchandise covered by those
contracts were within the POI and were reported correctly.166
100. Turning to the information reported by SAIL in the individual “fields” in its US sales computer
database (i.e., the contents of the “matrix”), USDOC thoroughly reviewed the contents of all of those
fields at verification. It did so by comparing the re ported data to records maintained by SAIL or its
vendors in the normal course of trade, to ensure that the reported data accurately and completely reflected
the expenses actually incurred.
167 It also selected several individual transactions whose reported data was
reviewed with particular care.168
101. The end result of this thorough review wa s that USDOC found very few problems with SAIL’s
US sales database. In addition to finding that this database was complete, USDOC found no problems
whatever for the great majority of the individual product characteristics and expense items reported in the
28 “fields” for SAIL’s US sales transactions.
169 Thus, of the items listed above, the verification report
either stated that the verification team had “noted no discrepancies” 170 or implied as much through its
silence regarding the following:
• Quantity (weight) of merchandise shipped
• Specifications and grade
• Quality
• Thickness
• Date of sale
• Invoice number
• Date of shipment
• Date of receipt of payment
• Gross unit price
• Credit expenses
• Warranty expenses
• Indirect selling expenses incurred in India for export sales
• Packing costs
102. Thus, for almost all of the information reported by SAIL in the large matrix of data that
comprised its US sales database, consisting of 28 fields for each of its 1284 observations, the information
was complete, verifiable – indeed, verified – and ready for use in calculation of SAIL’s dumping margins.
103. The only significant issue noted by the verification team was the miscoding of product width
discussed above at paragraph 30. The team thoroughly investigated this minor error once it was
discovered, and determined its scope; they “checked multiple instances of this coding error,” and
concluded that it “appear[ed] to be limited exclusively to products that had a width of 96 inches and to the

166 Id. at 15 (citing Verification Exhibit S-8).
167 Id. at 8-9, 14-15, 29-33.
168 Id. at 14 (citing Verification Exhibit S-7, which consists of documentation for the “preselected” US sales
that the USDOC verifiers chose for thorough review).
169 Id. at 12-15.
170 This phrase – “We noted no discrepancies” -- is the standard means by which USDOC communicates its
conclusion that the verification of a particular item was su ccessful. This has been a standard practice at USDOC for
many years.

US database.”171 They also obtained a list of all the affected observations from SAIL, included in
verification exhibit S-8.172 Thus, the exact extent of the miscoding was known and was on the record in
this proceeding. The other minor issues found at verification 173 were so minor that they were not even
mentioned in the “Summary of Significant Findings” at the beginning of the verification report. These
items cannot seriously be considered as undermining the conclusion that SAIL’s complete submitted US
sales database was verifiable.
(c) SAIL appropriately submitted its US sales data so that it could “be used in the
investigation without undue difficulties”
104. SAIL’s timely submitted and verified US sales data was capable of being used by USDOC as part
of the calculation of SAIL’s dumping margins “wit hout undue difficulty.” Indeed, the fact that SAIL’s
US sales data was both timely submitted and verified is evidence that USDOC could have used it without
undue difficulties.
105. USDOC itself recognized that the data was complete early in the investigation process. It stopped
asking SAIL about the US sales data after a few minor questions in the first supplemental questionnaire in
May 1999, to which SAIL timely responded on June 11.
174 Also in June 1999, well within the time
period that USDOC required for calculating SAIL’s dumping margins, SAIL submitted its revised US
sales computer database to USDOC. 175 That database contained detailed information requested by
USDOC on the relevant characteristics of SAIL’s individual US sales transactions.176
106. Moreover, USDOC’s thorough verification of SAIL ’s questionnaire responses revealed that the
submitted US sales database could be used without difficulty in the calculation of SAIL’s dumping
margins. The simple width miscoding described above in paragraph 30 was quickly delineated, and the
verifiers collected and entered into the verification record the information necessary to fix it.177
107. This coding error did not render SAIL’s reported US sales data “unusable.” It was easily
correctable by USDOC, and with that correction the US sales data could have been used to calculate
SAIL’s dumping margins. As explained in the attached affidavit by Mr. Albert Hayes
178, the correction
could have been implemented by a simple and routine addition of programming language in the computer
programme by which SAIL’s margins were calculated. To demonstrate the simplicity of this correction,
we have also attached a copy of the public version of the computer programme used by USDOC to
calculate the dumping margins for one of the respondents in one of the concurrent investigations of cut-
to-length plate from another country (Japan).
179 The correction of the width coding error would require

171 Verification report, Ex. IND-14, at 12.
172 Id.; this portion of Exhibit S-8 attached as part of Ex. IND-14.
173 See para. 28 above.
174 Ex. IND-5; Ex. IND-7.
175 Ex. IND-7; revised version in Ex. IND-8.
176 Ex. IND-8.
177 Verification report, Ex. IND-13, at 12.
178 Ex. IND-24.
179 Because USDOC applied total facts available in determining SAIL’s dumping margins, there is no
computer programme by which SAIL’s margins were calcu lated, so it is not possible to use a “SAIL-specific”
computer programme for this example. However, as noted above, USDOC typically uses a standard computer
programme for calculating dumping margins in concurrent investigations, and revises that standard programme to
address the specific circumstances of the individual respondents. In this respect, the correction of the width coding
error for SAIL could be viewed as simply a respondent-specific adjustment for SAIL of the standard programme.

merely insertion of the following twelve lines of programming language after line number 182 of the
programme:
182 USOBS =_N_;
183 RUN;
184
185 PROC SORT DATA = USDATA;
186 BY USOBS;
187
188 PROC SORT DATA = COMPANY.SAIL4X (RENAME = (OBS = USOBS))
189 OUT = VERFIX; /* WIDTH CORRECTION FROM VERIFICATION */
190 BY USOBS;
191
192 DATA USDATA;
193 MERGE USDATA (IN = IN_US) VERFIX (IN = IN_FX);
194 BY USOBS;
195 IF IN_US;
196 IF IN_US AND IN_FX THEN PLWIDTHU = ‘C’;
180
108. This revision would require no more than a few minutes of time by one of the experienced
analysts employed by USDOC.181
109. Another reason that SAIL’s US sales data could have been “used without undue difficulties” is
that it was sufficiently complete and accurate to provide a basis for the US sales side of the calculation of
SAIL’s dumping margins. India does not argue that USDOC should have used all of SAIL’s non-US
sales data to calculate the dumping margin. Ind eed, SAIL acknowledged to USDOC that USDOC would
be justified in resorting to other information and methods to calculate SAIL’s normal value.182
110. The affidavit of Albert Hayes 183 provides three alternative methods that USDOC could have used
to calculate SAIL’s dumping margin using SAIL’s US sales data. These alternatives are offered to the
Panel as evidence that the US sales data were indeed “usable without undue difficulties.” USDOC could
have calculated SAIL’s dumping margin by organizing the US sales data into the same categories of
merchandise used in the petition, and calculating average net US prices for those categories using its
standard methodology. Those net US prices could then be compared to the petition’s “normal value”
data. As the affidavit states, USDOC could derive normal values for comparison to SAIL’s US
transactions in three different ways:
• The average price of home market sales identified in the market research report submitted as
Exhibit 15 of the petition for a group of products with a specified range of grades, widths, and
thicknesses could be compared to the prices of the same and similar products in SAIL’s US sales
database, as the petition did.

180 Ex. IND-24.
181 Id.
182 SAIL case brief before USDOC, Ex. IND-14, at 13-14. During the investigation, SAIL offered three
alternatives to demonstrate to USDOC that it could use the US sales data as well as data on home market sales and
costs in the petition to calculate a final dumping margin. Id. at 14.
183 Ex. IND-24.

• The constructed-value price that was calculated for a specific cut-to-length plate product in the
petition could be compared to the prices of a narrow group of comparable US sales, and the prices
of the remaining US sales comparable to the merc handise in the market research report could be
compared to the average price of home market sales identified in that report.
• An average of the price in the market research report and the constructed-value price from the
petition could be compared to the prices of the comparable US merchandise.
111. The arithmetic required to calculate the final margins using any of these three alternatives is
straightforward. Yet USDOC refused to accept SAIL’s verified and timely US sales data using these or
any other formula. USDOC argued to the CIT that it could not– consistent with US statutes and its own
“long-standing practice”− calculate a final anti-dumping margin using only one part of the formula
supplied by the respondent and one or several parts of the formula from other sources, including the
petition.
184 According to these interpretations of the US statutes and its own practice, USDOC believed it
was required to use either all data from the respondent (subject only to the minor “filling of gaps” by
USDOC) or all data from other non-respondent sources including the petition. USDOC’s interpretation of
the AD Agreement allowed no middle ground. India submits that USDOC incorrectly interprets the
requirements of the AD Agreement and that it could have used, without any difficulty– let alone undue
difficulty− the US sales data provided by SAIL in calculating the dumping margins in this investigation.
(d) SAIL’s US sales database was “supplied in a medium or computer language requested by
the authorities”
112. There is no question that SAIL’s US sales database satisfied the requirement in Annex II,
paragraph 3 that it be “supplied in a medium or computer language requested by the authorities”. SAIL
submitted its US sales database on 11 May 1999, and a revised US sales database on 16 June 1999, in the
format requested by USDOC. USDOC raised no furthe r questions regarding either the format or the
readability of that database. USDOC’s apparent contentment with the US sales database contrasts to its
months of active questioning of SAIL’s home market sales and cost of production databases.
113. Because SAIL was able to submit its US sales database in the computer medium requested by
USDOC, SAIL did not need to invoke paragraph 2 of Annex II. SAIL did not seek to have USDOC “not
maintain” its request for a computerized response on US sales data, because SAIL determined that it was
able to satisfy USDOC’s demands regarding the US sales data without “unreasonable cost and trouble”.
SAIL’s submission of its US sales database in the computer medium requested by USDOC, in the
requested format and fully readable, demonstrates the lengths to which the company went to cooperate
with USDOC in this investigation.
(e) An unbiased and objective investigating authority evaluating the evidence could not have
reached the conclusion that SAIL failed to provide necessary US sales data within a
reasonable period
114. Applying the appropriate standard of review under DSU Article 11 and AD Agreement
Article 17.6, this Panel should find that an unbiased and objective investigating authority could not have
reached the conclusion that SAIL refused access to, or otherwise failed to provide, necessary information
relating to SAIL’s US sales data within a reasonable period. In particular, the Panel should find that an

184 Ex. IND-20 at 11-12.

unbiased and objective investigating authority would ha ve reached the conclusion that SAIL’s US sales
data complied with all of the conditions of AD Agreement Annex II, paragraph 3, first sentence. Because
USDOC did not use SAIL’s US sales data in calculating the dumping margin but instead used facts
available from the petition, the Panel should find that the final AD order dated 10 February 2000 is
inconsistent with the United States’ obligations under Article 6.8 and Annex II, paragraph 3 of the AD
Agreement.
2. Assuming arguendo that SAIL’s US sales data were not “ideal in all respects,” USDOC
violated Annex II, paragraph 5 by rejecting the data because SAIL acted to the best of its
ability in providing the data
115. India sets forth below an alternative claim under Annex II, paragraph 5 of the AD Agreement.
Based on the evidence in the record, the Panel should find that an unbiased and objective investigating
authority evaluating that evidence could not have reached the conclusion that SAIL did not act to the best
of its ability in providing the US sales data.
116. India urges the Panel to decide this claim and not exercise judicial economy. No WTO Member,
and particularly no developing country Member, should be compelled to initiate new WTO proceedings
because the exercise of judicial economy has left lacunae that prevent a complete resolution of the
dispute. Accordingly, India requests that the Pane l make findings with respect to this claim in the
alternative.
117. The quality and timeliness of SAIL’s US sales data submissions, and the effort required to
provide that data, demonstrate that SAIL acted to the best of its abilities in providing US sales data to
USDOC. Even if the Panel finds that SAIL’s US sales data were not “ideal in all respects,” they were of
a very high quality. The absence of any complain ts or followup by USDOC after receiving the data
signalled its satisfaction that SAIL had done a good enough job for USDOC to be able to use these data as
part of the equation for calculating SAIL’s anti-dumping margins. The verification of the US database
found it to be complete; for almost all of the data USDOC found “no discrepancies,” and found only one
significant error, the easily correctable width miscoding discussed above.
185
118. In a project as large and complex as the preparation and submission of a dumping database, errors
are inevitable, especially considering the short deadlines involved. If one error in a large database can
trigger a finding that the respondent has failed to act to the best of its ability, Article 6.8 will be invoked
in every investigation and the exception of “facts available” will swallow the rule of measuring dumping
through actual data wherever possible. The Agreem ent cannot establish a standard of conduct that no
respondent in the world could realistically satisfy; such a reading of its text would be contrary to the
principle of good faith in treaty interpretation recognized by the Appellate Body.
119. In this case, no external evidence contradicts the conclusion that SAIL acted to the best of its
ability, nor does any evidence raise concerns that SAIL applied anything less than its best efforts in
preparing its US sales database. The Government of India submits that no objective and unbiased
administering authority could reach a conclusion otherwise. In the domestic litigation concerning the final
AD determination in this investigation, the CIT reversed USDOC’s conclusion that SAIL had not acted to
the best of its ability, and remanded the case to USDOC to reconsider that conclusion. Predictably, on

185 See paras. 25-28 above.

remand USDOC came to the same conclusion as before , but even with this opportunity for reflection,
USDOC did not base its conclusion on any problems with the US sales database.186
3. USDOC’s application of adverse facts available in accepting the data in the petition for US
sales violated Annex II, paragraph 7 because SAIL did not fail to cooperate with USDOC or
otherwise withhold information related to its US sales
120. Assuming arguendo that the Panel does not find that SAIL’s US sales data should have been
accepted by USDOC pursuant to Annex II, paragraphs 3 or 5, India presents an additional alternative
claim that USDOC violated Annex II, paragraph 7. This claim is based on the fact that USDOC
improperly applied “total” facts available and then “adverse” facts available against SAIL in concluding
that SAIL had “failed to cooperate” in providing, inter alia , its US sales data. USDOC’s conclusion
could not have been based on a proper, unbiased and objective evaluation of the facts.
(a) Interpretation of Annex II, paragraph 7
121. The last sentence of Annex II, paragraph 7 provides that
It is clear, however, that if an interested party does not cooperate and thus relevant
information is being withheld from the authorities, this situation could lead to a result
which is less favourable to the party than if the party did cooperate.
122. The Appellate Body in Japan Hot-Rolled analyzed the meaning of the word “cooperate” in
Annex II, paragraph 7. It emphasized that the term means a “process, involving joint effort, whereby
parties work together towards a common goal.”
187 The Appellate Body stressed that “investigating
authorities are not entitled to insist upon absolute standards or impose unreasonable burdens upon”
exporters who are required to perform to a “very significant degree of effort – to the best of their
abilities.”188 The Appellate Body faulted USDOC’s definition of “cooperation” because that definition did
not provide for USDOC to cooperate with respondents in finding the relevant and necessary
information.189
123. Article 15 of the AD Agreement once again provides a necessary context for the Panel to
determine the extent to which USDOC should have c ooperated with SAIL in finding ways to utilize
SAIL’s US sales data. Article 15 requires USDOC to give “special regard” to the special situation of
India as a developing country “when considering the application of anti-dumping measures under this
Agreement.” There is no indication that USDOC enhanced the level of its cooperation with SAIL or
made any particular efforts to remedy any minor pr oblems that may have existed with SAIL’s US sales
data in an effort to comply with the mandate of the first sentence of Article 15 of the AD Agreement.
124. Paragraph 7 also provides for investigating authorities to examine whether a respondent
cooperated in providing particular categories of information. Annex II, paragraph 7 focuses on particular
information – not the totality of the information pr ovided (or not provided) by the responding company.
The first sentence indicates that authorities may have to base their findings “on information from a

186 Remand redetermination, Ex. IND-21.
187 Japan Hot-Rolled AB Report, para. 99.
188 Id., para. 102.
189 Id . para. 106 (“USDOC took no steps to assist KSC to overcome these difficulties, or to make
allowances for the resulting deficiencies in the information supplied”).

secondary source”, and “must check the information from other independent sources.” The immediate
context for Annex II, paragraph 7 is paragraph 6 which provides that “if information is not accepted, the
supplying party” should be informed of the reasons, and “the reasons for the rejection of such evidence or
information should be given in any published determinations.”
125. There is no textual basis for any investigating authority to apply adverse facts available in place
of a particular category of information, where the respondent cooperated to the best of its ability in
seeking to provide that particular information. If the respondent cooperates with respect to a particular
category of information, and does not act to the best of its ability in seeking to provide another category
of information, an investigating authority is not thereby justified in rejecting the former to punish the
respondent for its failures with respect to the latter.
(b) SAIL cooperated fully with USDOC in providing its US sales information
126. In the present case, USDOC concluded that SA IL “did not cooperate to the best of its ability
during the course of this investigation” and consequently “used an adverse inference in selecting a margin
as facts available.” 190 USDOC made no finding regarding whether SAIL cooperated regarding its US
sales data alone. Nothing in the record supports such a finding, even if USDOC had focused its
cooperation analysis on SAIL’s US sales data -- which it did not.
127. SAIL fully “cooperate[d]” with, and did not “withhold” any information from, USDOC regarding
its US sales. SAIL’s cooperation regarding the prep aration and submission of its US sales database is
demonstrated by the same facts as those that lead to the conclusion that the company “acted to the best of
its ability”. The fact that SAIL did not withhold any information is revealed by the fact that USDOC
itself noted in its verification report that SAIL’s US sales database was complete, and by the fact that all
the information requested by USDOC – almost 1300 transactions with 28 fields of data for each -- was
included in that database. To extent that errors in the US sales data were identified during verification,
SAIL immediately provided additional information at USDOC’s request. No more cooperation could
have been possible or was necessary. Indeed, USDOC itself recognized that any errors in the US sales
database “were susceptible of correction.”
128. If there was any lack of cooperation regarding US sales data, it was a unilateral lack of
cooperation on the part of USDOC. USDOC had an ob ligation to cooperate in good faith with SAIL.
USDOC’s refusal to use SAIL’s actual US sales data in calculating SAIL’s final dumping margin
constituted a failure to cooperate. USDOC displayed a similar lack of cooperation in the investigation in
the Japan Hot-Rolled case, when USDOC refused to use fully verified, timely submitted and usable
information to calculate a dumping margin. The panel and Appellate Body quite correctly found that no
objective and unbiased investigating official could have refused to use this information.
129. In view of the above, this Panel should find that an unbiased and objective investigating authority
that had received and evaluated SAIL’s US sales da ta, and evaluated SAIL’s efforts in connection with
the US sales data, could not have reached the conclusion that SAIL had failed to cooperate. Accordingly,
the Panel should find that USDOC acted contrary to Annex II, paragraph 7 in using “adverse” facts
available with respect to the US sales data.

190 Final Determination, Ex. IND-17, at 73127-73128.

B. SECTIONS 776(A), 782(D) AND 782(E) OF THE TARIFF ACT OF 1930 VIOLATE
ARTICLE 6.8 AND ANNEX II, PARAGRAPH 3 OF THE AD AGREEMENT
1. Introduction
130. Section 782(e) and Section 776(a) of the Tariff Act of 1930 as such ( per se) violate Article 6.8
and Annex II, paragraph 3 of the AD Agreement because in combination they require the rejection of
information submitted by a foreign respondent that is verified, timely submitted and can be used without
undue difficulty, unless USDOC finds that “the information is not so incomplete that it cannot serve as a
reliable basis for reaching the applicable determination,”191 and that the interested party has “acted to the
best of its ability in providing the information.” 192 Neither of these latter two conditions is found in
Annex II, paragraph 3 of the AD Agreement.
131. As discussed in section V above, Annex II, paragraph 3 provides a closed, all-inclusive list of
four conditions for determining whether information submitted by interested parties must be accepted by
investigating authorities. These four items do not include any requirement that the respondent make its
“best efforts,” nor do they require an analysis of whether the information is “so incomplete that it cannot
serve as a reliable basis for reaching an applicable determination.”
132. USDOC and the CIT have interpreted the phrase “so incomplete that it cannot serve as a reliable
basis for reaching an applicable determination” in section 782(e)(3) as mandating rejection of verified,
timely submitted and otherwise usable information. They will reject such information where the foreign
respondent has not provided sufficient information on what USDOC terms the “essential components of a
respondent’s data: US sales; home market sales; cost of production for the home market models; and
constructed value for the US models.”
193 Thus, in this case, because USDOC concluded that SAIL had
not provided usable, verifiable or timely submitted information concerning SAIL’s home market sales,
cost of production for home market models, or constructed value for the US models, it refused to accept
SAIL’s US sales data at all. Its reasoning for doing so was based on a conclusion under section 782(e)(3),
that SAIL’s US sales data, standing alone, was so incomplete that it could not even serve as part of the
basis for calculating a final dumping margin. USDOC describes such an action as the application of
“total facts available.”
133. USDOC will also reject verified, timely submitted and otherwise usable information unless the
“interested party has demonstrated that it acted to the best of its ability in providing the information and
meeting the requirements established by [USDOC] with respect to the information.” This proviso, which
appears in section 782(e)(4) of the US statute, is also applied over and above the four factors listed in
Annex II, paragraph 3. While a “best efforts” requ irement is found in different form in Annex II,
paragraph 5, the United States violates Annex II, paragraph 3 by merging the requirements of
paragraphs 3 and 5 together. Moreover, USDOC (affirmed by the CIT) has interpreted this phrase as
applying to a respondent’s best efforts throughout the entire investigation, not only with respect to
particular categories of information. The result of this improper interpretation is the mandated rejection
of some verified, timely submitted and usable information because the respondent has failed to
demonstrate to USDOC’s satisfaction that it acted to the best of its ability in providing other information.

191 Section 782(e)(3), Ex. IND-26.
192 Section 782(e)(4), Ex. IND-26.
193 Final Determination, Ex. IND-17, at 73130.

2. Operation of the US statutory scheme regarding “facts available”
134. The statutory provisions relevant to how US authorities treat “facts available” are found in
sections 776(a), 782(d) and 782(e) of the Tariff Act of 1930 as amended. Section 776(a) provides in
general:
If−
(1) necessary information is not available on the record, or
(2) an interested party or any other person −
(A) withholds information that has been requested by the administering
authority . . . under this subtitle,
(B) fails to provide such information by the deadlines for submission of the
information or in the form and manner requested, subject to subsections (c)(1)
and (e) of section 782,
(C) significantly impedes a proceeding under this title, or
(D) provides such information but the information cannot be verified as
provided in section 782(i),
the administering authority . . . shall, subject to section 782(d), use the facts otherwise
available in reaching the applicable determination under this title.
194
135. The four conditions provided in section 776(a)(2) are specified (with “or”) in the alternative. For
example, even if no information has been withheld, and the investigation has not been impeded, and the
information has been fully verified, the Commerce Department nonetheless must (“shall”) use “facts
available” if the information was submitted later than an arbitrarily-set deadline. Thus, if any one of these
four conditions applies, USDOC must use facts available.
136. Section 782(d) provides as follows:
(d) Deficient Submissions. − If the administering authority... determines that a
response to a request for information under this title does not comply with the request, the
administering authority... shall promptly inform the person submitting the response of the
nature of the deficiency and shall, to the extent practicable, provide that person with an
opportunity to remedy or explain the deficiency in light of the time limits established for
the completion of investigations or reviews under this title. If that person submits further
information in response to such deficiency and either
(1) the administering authority . . . finds that such response is not
satisfactory, or
(2) such response is not submitted within the applicable time limits,

194 Section 776(a) (emphasis added), Ex. IND-26.

then the administering authority . . . may, subject to subsection (e), disregard all or part of
the original and subsequent responses.195
137. While section 782(d) requires USDOC to give notice to a respondent if a submission is deficient,
it does not modify the basic mandate in section 776(a) requiring use of the “facts available.” Under
section 782(d), if USDOC finds that such an additi onal submission is “not satisfactory,” or if the
submission was not made by the deadline arbitrar ily set for it, USDOC may disregard not just the
additional submission but all or part of the original response as well. This was the statutory basis for
USDOC’s decision to reject all of the information submitted by SAIL, and instead base its final
determination in the cut-to-length plate case on mere conjecture− the highest dumping margins alleged by
the petitioner.
138. Section 782(e) limits Commerce’s ability to disregard actual information submitted, but only if
every one of five listed conditions is fulfilled:
(e) Use of Certain Information. − In reaching a determination under section . . . 733,
735, 751, or 753 [in anti-dumping investigations or reviews] the administering authority .
. . shall not decline to consider information that is submitted by an interested party and is
necessary to the determination but does not meet all the applicable requirements
established by the administering authority . . ., if−
(1) the information is submitted by the deadline established for its
submission,
(2) the information can be verified,
(3) the information is not so incomplete that it cannot serve as a reliable
basis for reaching the applicable determination,
(4) the interested party has demonstrated that it acted to the best of its ability
in providing the information and meetin g the requirements established by the
administering authority or the Commission with respect to the information, and
(5) the information can be used without undue difficulties.
196
139. If any one of these five factors is not fulfilled, then the mandatory requirement in section 776(a)
that USDOC reject the information and use “facts otherwise available” is activated. Thus, USDOC is
required to use the “facts available” if a questionnaire response was not submitted by an arbitrarily-set
deadline, even if the response was complete, verifiable (and was verified), was usable and was provided
in good faith.
140. Although the text of Sections 776(a) and 782(e) could be interpreted as applying to individual
categories of information, USDOC and the CIT have not interpreted these provisions in that way.
Instead, Section 776(a) has been interpreted as mandating the rejection of usable, verified, timely

195 Section 782(d), Ex. IND-26.
196 Section 782(e) (emphasis added), Ex. IND-26.

submitted information where the respondent “withholds [other] information that has been requested by
the administrating authority” or “fails to provide such [other] information by the deadlines for submission
of the information or in the form and manner requested.”197
3. Sections 776(a) and 782(e) are mandatory provisions
141. It is established GATT/WTO practice that the consistency of a law on its face may be challenged
even independently from any application thereof if the law is mandatory in nature. In other words, if a
law mandates WTO-inconsistent action or prohibits WTO-consistent action, it can be challenged on its
face in a dispute settlement proceeding.198
142. Sections 776(a) and 782(e), read together, mandate a violation of GATT/WTO obligations and
prohibit WTO-consistent treatment of information submitted during an anti-dumping investigation. They
must therefore be found as such to be inconsistent with those obligations.
199 As discussed immediately
preceding, section 776(a) mandates use of the “facts otherwise available” whenever one of the four
situations enumerated therein exists. While section 782(e) permits information to be nevertheless taken
into account, section 782(e) requires the submitting party ( i.e., the foreign respondent) to prove that all
five of the listed conditions are fulfilled. If it can only demonstrate four out of five, then USDOC cannot
take the information into account. Thus, sections 776(a) and 782(e), read together, mandate use of “facts
available” when the respondent has failed to provide information by the deadlines for submission of the
information or in the form and manner requested. They are measures that will necessarily result in action
inconsistent with GATT/WTO obligations.
143. The Statement of Administrative Acti on for the Uruguay Round Agreements Act (SAA)
reinforces the mandatory nature of sections 776(a) and 782(e). The SAA provides that Section 776(a)
“requires Commerce . . . to make determinations on the basis of the facts available where requested
information is missing from the record or cannot be us ed because, for example, it has not been provided,
it was provided late, or Commerce could not verify the information.”200
144. The SAA constitutes a definitive interpretation of the statute as most recently amended in 1994. It
comprises an exegesis of the WTO Agreement and the agreements annexed to it, a description of the
changes made in US law and regulations to implement them, and a definitive policy statement of how the
US authorities would administer the US law and regulations as thus changed. 201 The SAA describes itself
as “an authoritative expression by the Administrati on concerning its views regarding the interpretation

197 Section 776(a)(2)(A) and (b), Ex. IND-26.
198 Japan Hot-Rolled Panel Report, para. 7.192.
199 See United States – Anti-Dumping Act of 1916 , Appellate Body Report, WT/DS136/AB/R-
WT/DS162/AB/R, adopted 26 September 2000, para. 88.
200 SAA p. 869, Ex. IND-27 (emphasis added).
201 The contents and phrasing of the Statement of Administrative Action were negotiated between the US
Administration and the US Congress (with extensive input at times from interested private sector groups such as the
industries most heavily utilizing anti-dumping remedies). The final text of the Statement of Administrative Action
was then formally submitted to the US Congress together with the Uruguay Round package of international
agreements and implementing legislation; it was expressly approved by Congress in section 101(a) of the Uruguay
Round Agreements Act (codified at 19 U.S.C. 3511(a)). Section 102(d) of the same Act (19 U.S.C. 3521(d))
provides that “The statement of administrative action approved by Congress under section 101(a) shall be regarded
as an authoritative expression by the United States concerning the interpretation and application of the Uruguay
Round agreements and this Act in any judicial proceeding in which a question arises co ncerning such interpretation
or application.”

and application of the Uruguay Round agreements, both for purposes of US international obligations and
domestic law” and states that “it is the expectation of Congress that future Administrations will observe
and apply the interpretations and commitments set out in this Statement.”202 As the panel found in United
States - Sections 301 - 310 of the Trade Act of 1974, the “SAA thus contains the view of the
Administration, submitted by the President to Congress and receiving its imprimatur, concerning both
interpretation and application and containing commitments, to be followed also by future
Administrations, on which domestic as well as international actors can rely.”
203
145. USDOC and the CIT have treated sections 776(a) and 782(e) as mandating the use of facts
available whenever the circumstances provided for in section 776(a) exist and any one of the conditions
listed in section 782(e) is not met. Many USDOC determinations have described Section 776(a) as
“requiring” USDOC to resort to facts available.204 The CIT has held that “[Section 776(a)] sets forth four
situations, any one of which requires Commerce to resort to ‘facts otherwise available.’”205 The CIT has
also held that all five criteria enumerated in section 782(e) must be met before its provisions apply; if any
one of the criteria is not fulfilled, analysis of the others is unnecessary. 206 USDOC’s final determination
on Pasta from Italy, describing the treatment of information submitted by the pasta exporter De Cecco,
neatly describes USDOC’s view of the relationship between section 776(a) and section 782(e):
Because section 782(e) did not prevent the Department from declining to consider De
Cecco's COP [cost of production] information, and 782(d) allowed the Department to
disregard De Cecco's original deficient COP response and its unsatisfactory responses to
the Department's subsequent request, the Department determined that De Cecco failed to
provide its COP information by the deadlines established or in the form and manner
requested. Section 776(a) thus required the Department to use the facts available in
making its determination as to De Cecco.
207

202 SAA p.1, quoted in Japan Hot-Rolled Panel Report, para. 7.198.
203 WT/DS152/R, adopted 27 January 2000, para. 7.111 (emphasis added).
204 See, e.g., Notice of Final Determination of Sales at Less than Fair Value: Certain Pasta from Italy , 61
Fed.Reg. 30326, 14 June 1996 (“ Pasta from Italy”); Final Determination of Sales at Less than Fair Value: Certain
Pasta from Turkey , 61 Fed.Reg. 30309, 30311, 14 June 1996 (“ Pasta from Turkey”); Certain Cut-To-Length
Carbon Steel Plate from Sweden: Preliminary Results of Antidumping Duty Administrative Review , 61 Fed.Reg.
51898, 51899, 4 Oct. 1996 (“ Plate from Sweden ”) (“the Department has determined that, insofar as SSAB's cost
data could not be verified, section 776(a) of the Act requires the Department to use the facts available with respect to
this data”). See also Roller Chain, Other than Bicycl e from Japan: Preliminary Results and Partial Rescission of
Anti-dumping Duty Administrative Review , 63 Fed.Reg. 25450, 8 May 1998 (“section 776(a) mandates that the
Department use facts available in making its determination vis-à-vis Pulton”). These determinations are attached in
Ex. IND-28.
205 Allegheny-Ludlum Corp. v. United States , USCIT Slip Op 2000-170 (28 December 2000), at 42-43
(emphasis added), attached in Ex. IND-29.
206 Acciai Speciali Terni v. United States , USCIT Slip Op. 2001-36 (30 March 2001), at 42, attached in Ex.
IND-29.
207 Pasta from Italy, supra n. 204, at 30328-29 (emphasis added). See also Roller Chain, Other than
Bicycle from Japan: Final Results and Partial Resc ission of Anti-dumping Duty Administrative Review, 63 Fed.Reg.
63671, 63673, 16 November 1998, attached in Ex. IND-28 (“ Roller Chain from Japan - Final ”) (“Given that Kaga
failed to provide the necessary information in the form an d manner requested, even after being provided several
opportunities to cure these deficiencies, the Department is required, under section 782(d), to apply, subject to
section 782(e), facts otherwise available. We further determine that Kaga failed to satisfy several of the
requirements enunciated by section 782(e) of the Act. . . . For the reasons stated above, the application of

4. The two additional conditions for acceptance of information imposed by sections 782(e)(3)
and 782(e)(4), read together with section 776(a), are inconsistent with AD Article 6.8 and
Annex II, paragraph 3
146. In section V above, India has argued that the list in Annex II, paragraph 3 is an exhaustive list,
and that it is legally impermissible for an administering authority to superimpose any additional
conditions that will prevent it from taking into account verifiable, timely, usable and appropriately
submitted information.
147. Sections 782(e) and 776(a), read together, violate Article 6.8 and Annex II, paragraph 3 by
establishing two additional conditions not found or mandated in Annex II, paragraph 3, which expand the
extent to which USDOC can and must use “facts available” instead of information actually submitted.
148. The first new condition is that the information must not be “so incomplete that it cannot serve as a
reliable basis for reaching the applicable determination.” There is simply no reference in Annex II,
paragraph 3 to a quantum of information that is necessary in order for information to be used. None was
imposed by the panels or the AB in earlier reports addressing Article 6.8 and Annex II, paragraph 3.
149. Moreover, in the final determination on cut-to-length plate from India – as well as in other
investigations -- USDOC read the word “information” as comprising all the information requested or
submitted during an investigation. Thus, if one large category of information, such as cost of production
data, is not verifiable, complete, or timely submitted, this reading of Sections 782(e) and 776(a) permits
USDOC to reject all of the information submitted and to substitute total facts available and a petition-
based dumping margin.
150. The second condition added by section 782(e) is that an interested party must demonstrate that it
has acted to the “best of its ability” in providin g the information and complying with the requirements
established by USDOC “with respect to the informatio n.” We have set forth in detail the analysis of
Annex II, paragraph 3 and 5 in Sections V and VI.A.2(a) above that compels the finding that paragraphs 3
and 5 consist of separate obligations for investigating authorities. The “best of its ability” provision of
Section 782(e) turns around the sense of the reference to the same phrase in paragraph 5 of Annex II of
the AD Agreement. If information satisfies the criteria of paragraph 3, it must be used, regardless of
whether a party has acted to the “best of its ability.” Conversely, under paragraph 5, investigating
authorities must use even less-than-ideal information that does not meet the requirements of paragraph 3,
as long as the party concerned has acted to the best of its ability.
151. In addition, under Article 2.4 of the AD Agreement, the obligation to carry out a fair comparison
lies on the investigating authorities, not on the export ers. The investigating authorities already require
interested parties to produce information; to refuse to use the information unless an interested party
demonstrates it acted to the “best of its ability” is to impermissibly limit rights and impose new
obligations inconsistent with the Agreement.
208

section 782(e) of the Act does not overcome section 776(a)'s direction to use facts otherwise available for Kaga's
submissions. Thus, the use of facts available is warranted in this case.”)
208 Under section 776(b), if USDOC determines that an interested party has failed to cooperate by not
acting “to the best of its ability” to comply with a USDOC request for information, then USDOC may not just use
“facts available” but may use “adverse inferences,” including information from the petition, or (in an administrative
review) prior reviews. Section 782(e) also refers to “best of its ability.”

152. In sum, by conflating the separate concepts found in paragraphs 3 and 5, section 782(e) reflects
an impermissible interpretation of the AD Agreement that limits the circumstances in which information
submitted by an interested party will be used.
5. Section 776(a) and 782(e), as interpreted by USDOC and the CIT, require USDOC to reject
timely submitted, verified and usable information if other information is withheld or not
submitted in the time, form or manner requested, and therefore violate Article 6.8 and
Annex II, paragraph 3
153. As discussed above, sections 776(a) and 782(e), read together, are mandatory measures.
Section 776 mandates use of the “facts otherwise available” whenever the respondent has failed “to
provide information by the deadlines for submission of the information or in the form and manner
requested.”
209 While the text of Section 776(a) could be interpreted as applying to individual categories
of information, USDOC and the CIT have not interpreted these provisions in that way. Rather, they have
interpreted sections 776(a) and 782(e) to require the rejection of timely submitted, verifiable, and usable
information, because other submitted information proved imperfect. As discussed in section V above,
such actions are inconsistent with paragraphs 3 and 5 of Annex II.
154. USDOC and the CIT have interpreted section 782(e)(3) as requiring that verified, timely
submitted information must nevertheless be rejected where other information is missing. They have often
interpreted the phrase “so incomplete that it cannot serve as a reliable basis for reaching an applicable
determination” in section 782(e)(3) as mandating rejection of verified, timely submitted and otherwise
usable information. A typical scenario involves an anti-dumping investigation where (as often happens)
the petitioner alleges that home market sales were made at prices below the cost of production. If USDOC
initiates an investigation of below-cost sales, then it demands that the respondent produce not just data on
home market sales and US sales, but data on costs of production of products sold in the home market and
constructed value of products sold in the US market− magnifying the likelihood that there will be flaws in
one or more of the data sets.
155. For instance, in the case of Pasta from Italy, the petitioner alleged sales below cost, and USDOC
requested data on cost of production and constructed value. During the investigation, the respondent De
Cecco tried and failed to develop a cost-accounting system that would meet USDOC’s standards. Six
days before verification, De Cecco submitted a reconciliation of its submitted data to the records
maintained in the normal course of business, then two days later USDOC decided that it was required to
resort to facts available for De Cecco’s cost data. USDOC then found that as a consequence, De Cecco’s
home market sales data were unusable because these sales could not be tested to determine whether they
were above the cost of production. De Cecco’s constructed value data could not be used either, because
they were part of the rejected cost data. USDOC then went to total facts available and assigned a margin
from the petition.
210 Indeed, USDOC has stated repeatedly that “The Department’s prior practice has
been to reject a respondent’s submitted information in toto when flawed and unreliable cost data renders
any price-to-price comparison impossible.”211 The final determination in the investigation of cut-to-length

209 Section 776(a)(2)(B), Ex. IND-26.
210 Pasta from Italy, supra n. 204, at 30327, attached in Ex. IND-28.
211 Elemental Sulphur from Canada: Preliminary Results of Antidumping Duty Administrative Review , 62
Fed.Reg. 969, 970 (7 January 1997) attached in Ex. IND-28, citing inter alia Pasta from Italy at 30329 and Pasta
from Turkey at 30311. See also Plate from Sweden, supra n. 204, at 51899 and Certain Cut-To-Length Carbon Steel

plate from India similarly stated: “It is the Departme nt's long-standing practice to reject a respondent's
questionnaire response in toto when essential components of the response are so riddled with errors and
inaccuracies as to be unreliable.”212
156. Thus, in this case, because USDOC concluded that SAIL had not provided usable, verifiable or
timely submitted information concerning SAIL’s home market sales, cost of production for home market
models, or constructed value for the US models, it refused to accept SAIL’s US sales data. Its reasoning
for doing so was based on Section 782(e)(3).
157. USDOC and the USCIT have also interpreted section 782(e)(4) to mandate rejection of verified,
timely submitted information where USDOC has found that a respondent has not demonstrated that it has
acted to the best of its ability in providing the in formation and meeting the requirements established by
USDOC with respect to the information. A finding of this nature can be based on the mere fact of
missing data, such as cost information.
213 Even an attempt to correct earlier mistakes can trigger a finding
under section 782(e)(4). 214 If some data were missing or corrected, then, by triggering sections 782(e)
and 776(a), this fact will lead to rejection of the other data that were submitted and even verified, in
favour of total facts available and petition-based margins.
158. As the Appellate Body has interpreted Annex II, paragraph 3 of the AD Agreement, if
information submitted is “verifiable,” is “appropriately submitted so that it can be used in the
investigation without undue difficulties,” is “supplied in a timely fashion,” and (where applicable)
“supplied in a medium or computer language requested by the authorities,” it cannot be rejected and it
must be used.
215 Sections 782(e) and 776(a) as interpreted by USDOC and the CIT contradict this
direction from the Appellate Body. Suppose that a res pondent submits flawless databases of its US and
home market sales, which are verifiable, are verified, are usable and are timely submitted. If that
respondent’s cost of production data are not also usable, under Section 782(e)(3) and (4) and USDOC
“long-standing practice”216 its flawless sales data will be rejected. USDOC will refuse to use “partial facts
available,” will be required to use total facts available under section 776(a), and will assign a margin from

Plate from Mexico: Preliminary Results of Antidumping Duty Administrative Review , 63 Fed.Reg. 48181, 48182
(9 September 1998), attached in Ex. IND-28.
212 Final Determination, Ex. IND-17 at 73130.
213 Plate from Sweden, supra n. 204, at 51899; Certain Cut-to-Length Carbon Steel Plate from Sweden :
Final Results of Antidumping Duty Administrative Review , 62 Fed.Reg. 18396, 18401 (15 April 1997), attached in
Ex. IND-28 (“The Department's bases for relying on total facts available were: SSAB's inability to demonstrate that
the costs submitted to the Department were reflective of actual costs accrued to produce the subject merchandise and
reconcilable to information recorded in the normal books and records; and our inability to use partial facts available
to fill in for the unverified information.”) See also Pasta from Italy, supra n. 204, at 30328: “De Cecco had not
demonstrated that it acted to the best of its ability in providing the requested information because De Cecco had
failed to respond in a satisfactory manner to the Department's supplemental request for information and had
provided completely new COP responses in February 1996, long after the Department's 27 November 1995,
deadline for such a response.”
214 Roller Chain from Japan – Final, supra n. 207, at 63673: “Sugiyama did not demonstrate that it acted to
the best of its ability in providing the necessary information. As explained above, and as detailed in the Sugiyama
FA [facts available] Memorandum, after the November 17 deadline established for submission of new factual
information in this review, Sugiyama continued to submit partial corrections to its timely submitted data and to the
untimely submitted home market affiliated sales information that it provided to the Department for the first time on
27 January 1998.”
215 Japan Hot-Rolled AB decision, para. 83.
216 See cases cited in footnote 211 above.

the petition. Thus, sections 776(a), 782(d) and 782(e) violate Annex II and Article 6.8 of the AD
Agreement.
6. Conclusion
159. These statutory provisions are inconsistent with the AD Agreement. They have led to decision
after decision in which USDOC has rejected timely submitted, verified and usable information generally
in favour of allegations and partial information submitted by the petitioner. The damage caused to
exporters by these actions, and its continuing threat to legitimate exports to the US market, are entirely
uncompensated by the WTO system. Only a finding of illegality by the Panel will ensure that further
damage to exporters is prevented, by ensuring that the United States brings not just one administrative
decision but also its statutes into conformity with its WTO obligations.
C. SECTIONS 776(A), 782(D) AND 782(E) AS APPLIED TO THE ANTI-DUMPING
INVESTIGATION OF CUT-TO-LENGTH PLATE FROM INDIA ARE INCONSISTENT
WITH THE AD AGREEMENT
160. Section III above has laid out the sequence of events during the USDOC investigation of cut-to-
length carbon steel plate from India. The following section discusses in more detail how USDOC and the
USCIT applied sections 776(a), 782(e) and 782(d) to this investigation, and the inconsistency of that
application with the AD Agreement.
161. As discussed above, SAIL responded on a timely basis in providing its US sales data. The US
sales computer database submitted to USDOC on 16 June 1999 was complete and fully responsive, and
was provided in the computer format requested by USDOC. USDOC requested that SAIL include four
additional fields in its US sales database, which it did in its revised databases submitted in July through
September, but otherwise USDOC raised no questions during the remaining course of the investigation
regarding the readability or computer format of that US sales database, focusing its efforts instead on
SAIL’s data on home market sales and cost of production. In the preliminary anti-dumping determination
of 29 July 1999, USDOC applied a dumping margin based on total facts available. 217 The only problems
USDOC had cited at that point concerned SAIL’s home market cost and price data.218 USDOC decided to
assign a margin to SAIL based on the petition, rejecting SAIL’s US sales data out of hand solely because
of the problems in the other data.
162. At verification in September 1999, the only problem with SAIL’s US sales database considered
significant was the simple, correctable coding error discussed at paragraph 30 above. But USDOC’s
Memorandum of Verification Failure concluded that “SAIL’s data on the whole is unreliable.” 219 T h e
final determination of 29 December 1999 then rejected any use of the US sales database, and assigned an
even higher margin on the basis of the petition.220
163. In statutory terms, USDOC made a positiv e determination to use facts available pursuant to
section 776(a)(2)(A), (B) and (D). Section 776(a)(2 )(A) is triggered when USDOC determines that an
interested party or other person “withholds informa tion that has been requested by the administering
authority.” Thus, USDOC found that the computer and other problems with SAIL’s home market sales

217 Ex. IND-11 at 41204.
218 Id. at 41203-04.
219 Memorandum of Verification Failure, Ex. IND-16, at 5.
220 Final Determination, Ex. IND-17, at 73127-28.

and cost of production databases meant that SAIL had withheld requested information. Similarly, with
respect to section 776(a)(2)(B), USDOC found that SAIL’s problems assembling the home market sales
and cost data meant that SAIL had “fail[ed] to provide such information by the deadlines for the
submission of the information or in the form or manner requested.” With respect to section 776(a)(2)(D),
USDOC found that the problems found at verificati on (which all related to the home market sales
database, except for the coding errors for US sales) meant that SAIL had “provid[ed] such information
but the information cannot be verified.”221 USDOC then went on to find that all of the five exceptions in
section 782(e) to the use of “facts available” did not apply.222
164. To qualify for acceptance under section 782(e)(1), the “information” must be “submitted by the
deadline established for its submission.” USDOC found that “SAIL was given numerous extensions to
submit accurate data which it failed to do. In fact the last submission of cost data filed on August 18,
1999, was a database which contained unreadable electr onic versions of SAIL's cost of production which
did not include any constructed value information.”
223 In other words, USDOC interpreted the word
“information” as meaning all the information requested in the case, and decided not to take into account
the US sales data because of problems in the home market sales and cost data.224
165. Second, section 782(e)(2) only operates as an exception to the mandate in section 776 if “the
information can be verified.” USDOC found that “wit h respect to section 782(e)(2), we were not able to
verify SAIL's questionnaire response due to the fact that essential components of the response (i.e., the
home market and cost databases) contained significant errors.”
225 Again, USDOC equated “information”
with all the information requested, and refused to take into account the US sales data which had been
fully verified because of problems in verifying other categories of information.
166. Third, section 782(e)(3) requires that “the information” be “not so incomplete that it cannot serve
as a reliable basis for reaching the applicable determination.” USDOC determined that “with respect to
section 782(e)(3), the fact that essential components of SAIL's response could not be verified resulted in
information that was incomplete and unreliable as a basis for determining the accurate margin of
dumping.”226 This finding too interpreted “information” as all the information requested, and resulted in
rejection of the verified US sales data because of problems in unrelated home market sales and cost of
production data.
167. Fourth, section 782(e)(4) requires that an interested party have “demonstrated that it has acted to
the best of its ability in providing the information and meeting the requirements established by the
administering authority . . . with respect to the in formation.” USDOC determined that “with respect to
section 782(e)(4), SAIL, as stated in the home market sales verification report, did not sufficiently verify
the accuracy and reliability of its own data prior to submitting the information to the Department, thereby
indicating that it did not act to the best of its ability to provide accurate and reliable data to the
Department.”
227 Again, USDOC interpreted “the information” to mean all information requested. It
focused on the same problems in the home market sales and cost of production database as a justification
for excluding all of the information submitted, including the US sales data, when it had earlier found the

221 Id. at 73127.
222 Id. at 73127, 73131.
223 Id. at 73127.
224 Id. at 73130.
225 Id. at 73127.
226 Id.
227 Id.

US sales data to be accurate and complete. USDOC interpreted SAIL’s failure to accomplish total
compliance with the complex USDOC questionnaire and to present totally correct answers to questions
regarding all the categories of information as implying a failure by SAIL to check its data; this failure to
check the data became a failure to “act to the best of its ability.”
168. Finally, section 782(e)(5) only operates as an exception to the mandate in section 776 if “the
information can be used without undue difficulties.” In this connection, USDOC determined that “the US
sales database contained errors that, while in isolation were susceptible to correction, however when
combined with the other pervasive flaws in SAIL's data lead us to conclude that SAIL's data on the whole
is unreliable. As a result, the Department does not have an adequate basis upon which to conduct its
analysis to determine the dumping margin and must resort to facts available pursuant to section 776(a)(2)
of the Act.”228 Again, the problems with the home market cost and sales data led to rejection of the US
sales database, even though the US sales data were accurate and complete, and the one identified
computer coding error was simple to correct from information in the record of the investigation. Aside
from USDOC’s inflated and self-serving claim that flaws in other parts of SAIL’s response caused it to
suspect the reliability of the US sales data, there was no evidence in the record that would provide any
link between those other flaws and the US sales data.
169. As a result, USDOC resorted to “total facts available” and refused to take into account the
submitted information, as mandated under sections 776(a)(2) and 782(e) read together. The notice stated
that “[i]t is the Department’s long-standing practice to reject a respondent’s questionnaire response in toto
when essential elements of the response are so riddled with errors and inaccuracies as to be unreliable… .
To properly conduct an anti-dumping analysis which includes a sales-below-cost allegation, the
Department must analyze four essential components of a respondent's data: US sales; home market sales;
cost of production for the home market models; and constructed value for the US models. Yet SAIL has
not provided a useable home market sales database, cost of production database, or constructed value
database.”
229 Thus, USDOC read sections 776(a) and 782(e) as requiring rejection of the US sales data −
which had been verified as accurate and complete and which could be used with a simple correction of an
obvious coding error − because of the problems with home market sales and cost of production data.
Indeed, as seen above, USDOC’s actions in this case paralleled many other cases where problems in
home market cost and/or sales data led to mechanical resort to facts available.
170. As discussed above, USDOC then assigned to SAIL a margin rate of 72.49 per cent from the
petition.
230 After the US International Trade Commission’s affirmative final injury determination,
USDOC issued the anti-dumping order.231
171. When SAIL appealed the final determin ation to the CIT, SAIL argued that the word
“information” in section 782(e) applies to particular categories of information (such as the US sales data),
as separate and distinct submissions of information. 232 USDOC argued in response that it had a “long
standing practice” of using total facts available when there are “essential components of the response”
that are inaccurate or unreliable, and that it had “disregarded all the responses in order to calculate what it

228 Id. (emphasis added).
229 Id.
230 Id. at 73127-28.
231 Ex. IND-18.
232 SAIL moving brief to the USCIT in SAIL v. United States, Ex. IND-19, at 15-23; SAIL v. United States,
Ex. IND-20, at 4-6.

considered a more accurate dumping margin.” 233 USDOC also argued that the term “information” in
section 782(e) meant all submitted responses by an interested party, not just a category within the
responses.234 USDOC argued to the CIT that it could not– consistent with US statutes and its own “long-
standing practice”− calculate a final anti-dumping margin using only one part of the formula supplied by
the respondent and one or several parts of the formula from other sources, including the petition.
According to this interpretation of the US statutes and its own practice, USDOC believed it was required
to use either all data from the respondent (subject only to the minor “filling of gaps” by USDOC) or all
data from other non-respondent sources including the petition. USDOC’s interpretation of the AD
Agreement allowed no middle ground.
172. The CIT upheld USDOC’s interpretation as a “reasonable construction of the statute” and
consistent with USDOC’s “long standing practice of limiting the use of partial facts available.”
235 The
court affirmed USDOC’s decision to apply “total facts available” as supported by “substantial evidence in
the record,” on the basis of USDOC assertions that there were deficiencies which “cut across all aspects
of SAIL’s data,” and because SAIL had not met USDOC deadlines. 236 However, the court found that in
these circumstances, before applying adverse infe rences, USDOC should have determined whether SAIL
refused to cooperate or could have provided the information requested but did not. The issue was
remanded to USDOC so that it could make such findin gs or reconsider its decision to apply an adverse
inference.237 USDOC’s redetermination on remand changed nothing in USDOC’s treatment of SAIL’s
submitted information, and so the margin of 72.49 per cent remains unchanged.238
173. For the reasons set out above, the Panel should rule that the interpretation of these statutes by
USDOC and the CIT is inconsistent with Article 6.8 and paragraph 3 of Annex II of the AD Agreement.
D. USDOC VIOLATED AD AGREEMENT ARTICLES 2.2, 2.4, 9.3, AND ARTICLE VI:1 AND 2
OF GATT 1994 BY APPLYING FACTS AVAILABLE AND ADVERSE FACTS AVAILABLE
IN CALCULATING AND LEVYING FINAL ANTI-DUMPING DUTIES WITHOUT USING
SAIL’S SUBMITTED US SALES DATA
174. By failing to use SAIL’s verified and ti mely produced US sales data, USDOC calculated and
levied a final anti-dumping margin that failed to make a fair comparison between SAIL’s export price and
the normal value as required by AD Agreement Article 2.4. Because the incorrect anti-dumping margin
was determined in violation of Article 2.4, USDOC al so violated Article 9.3 which provides that “the
amount of the anti-dumping duty shall not exceed the margin of dumping as established under Article 2.”
This failure to perform a fair comparison also constituted a violation of Article VI:1 of the GATT 1994,
and consequently a violation of Article VI:2 of GATT 1994, which provides that a Member may only
“levy on any dumped product an anti-dumping duty not greater in amount than the margin of dumping in
respect of such product” and defines the margin of dumping as the price difference determined in
accordance with Article VI:1.

233 SAIL v. United States, Ex. IND-20, at 7.
234 Id. at. 9.
235 Id. at 11-13.
236 Id. at 13-14, quoting USDOC brief to the USCIT.
237 Id. at 15-19.
238 Ex. IND-21.

E. USDOC VIOLATED AD AGREEMENT ARTICLE 15 BY FAILING TO GIVE SPECIAL
REGARD TO THE SITUATION OF INDIA AS A DEVELOPING COUNTRY WHEN IT
APPLIED FACTS AVAILABLE IN RELATION TO SAIL’S US SALES DATA
175. USDOC also violated AD Article 15 by failing to give special regard to India’s status as a
developing country when considering the application of anti-dumping duties. The second sentence of
Article 15 of the AD Agreement required USDOC to “explore” the “possibilities of constructive remedies
provided for” by the AD Agreement, “before applying anti-dumping duties” to exports from a developing
country such as SAIL’s exports in this case. Article 15 requires investigating authorities in developed
countries to provide “notice or information” to respondents from developing country Members
concerning the opportunities for exploring alternative remedies other than anti-dumping duties. 239 As the
panel held in India Bed Linens , pure passivity by developed country investigating authorities is not
sufficient to satisfy the obligation to “explore” possibilities of constructive remedies. 240 Rather, the
“exploration of possibilities must be actively undert aken by the developed country authorities with a
willingness to reach a positive outcome.” 241 Article 15 imposes “an obligation to actively consider, with
an open mind, the possibility of [a constructive remedy] prior to imposition of an anti-dumping measure
that would affect the essential interests of a developing country.”242
176. On 30 July 1999, SAIL filed a proposal with USDOC seeking a suspension agreement, stating as
follows:
SAIL is interested in discussing with the Department a possible “suspension agreement”
that will resolve any problem associated with trade in CTL plate for the foreseeable
future. In this connection, we propose for purposes of discussion the attached draft
suspension Agreement that is based on the level of prices prevailing in the United States
market.
243
177. USDOC made no written response to this proposal, and none is in the record before this Panel. In
contacts with SAIL’s counsel, USDOC officials stated orally that they would not discuss a suspension
agreement at all, because the US domestic steel indus try and its supporters in the US Congress would
oppose any suspension agreement. USDOC’s conduct show ed not an “open mind” but a closed one. Its
actions were devoid of any “exploration of possibilities . . . with a willingness to reach a positive
outcome.” Like the EC in India Bed Linens, USDOC did not treat SAIL any differently than respondents
from developed countries when it issued final anti-dumping duties. It failed to provide notice to SAIL
that it was willing to consider exploring the possibility of alternative remedies such as anti-dumping
duties in a lesser amount or the acceptance of price undertakings. Asked about alternative remedies, it
refused to discuss them.
178. Based on the foregoing, the Panel should find that the United States violated Article 15 in levying
final anti-dumping duties on imports of cut-to-lengt h plate from India without exploring the possibilities
of constructive remedies.

239 European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India ,
WT/DS141/R (30 October 2000), para. 6.238.
240 Id.
241 Id., para. 6.233.
242 Id.
243 Ex.IND-10, 30 July 1999 letter from John Greenwald, counsel for SAIL, to Robert S. La Russa,
USDOC Assistant Secretary for Import Administration.

VII. CONCLUSION AND REQUEST FOR RULINGS AND RECOMMENDATIONS
179. India requests that the Panel make the following findings:
1. That the anti-dumping duty order issued by USDOC in Certain Cut-To-Length Carbon-
Quality Steel Plate Products from India on 10 February 2000 is inconsistent with the US
obligations under Articles 2.4, 6.8, 9.3, 15 and Annex II, paragraphs 3, 5 and 7 of the AD
Agreement, and Articles VI:1 and VI:2 of GATT 1994.
2. That sections 776(a), 782(d) and 782(e) of the Tariff Act of 1930 as amended (19 U.S.C.
§§1677e(a), 1677m(d) and 1677m(e)) as such, and as interpreted by USDOC and the
CIT, are inconsistent with US obligations under Article 6.8 and Annex II, paragraphs 3, 5
and 7 of the AD Agreement.
3. That sections 776(a), 782(d) and 782(e) of the Tariff Act of 1930 as amended (19 U.S.C.
§§1677e(a), 1677m(d) and 1677m(e)) as applied by USDOC in the investigation leading
to the final actions referenced above are inconsistent with US obligations under
Articles 2.4, 6.8, 9.3, 15 and Annex II, paragraphs 3, 5 and 7 of the AD Agreement, and
Article VI:2 of GATT 1994.
180. India requests that the Panel recommend, pursuant to DSU Article 19.1, that the United States
bring its anti-dumping duty order and the statutory prov isions referred to above into conformity with the
AD Agreement and Articles VI:1 and VI:2 of GATT 1994.
181. India further requests that the Panel exercise its discretion under DSU Article 19.1 to suggest
ways in which the United States could implement the recommendations. In particular, the Panel should
suggest that the United States recalculate the dumping margins by taking into account SAIL's verified,
timely submitted and usable US sales data, and also, if appropriate, revoke the final antidumping order.
India reserves the right to request the Panel to suggest additional ways in which the United States could
implement the recommendations.

EXHIBITS
US-1. USDOC Initial Antidumping Questionnaire to SAIL , Sections A, B, C and D, dated
17 March 1999.
US-2. Petition of U.S. Steel Group, Bethlehem Steel Corporation, Gulf States Steel, IPSCO
Steel Inc. and Tuscaloosa Steel, dated 16 February 1999 (excerpts).1
US-3. Cost Verification Report, dated 4 November 1999.
US-4. Sales Verification Report, dated 4 November 1999.
US-5. Memoranda Granting Extensions, dated 14, 16, and 30 April 1999.
US-6. Letter from SAIL’s Counsel to USDOC Re: Breakdown and Extension Request , dated
11 May 1999.
US-7. Letter from SAIL’s Counsel to USDOC Re: Late Filing, dated 11 May 1999.
US-8. USDOC First Deficiency Questionnaire to SAIL, dated 27 May 1999.
US-9. USDOC Second Deficiency Questionnaire to SAIL, dated 11 June 1999.
US-10. Letter from SAIL to USDOC, dated 16 June 1999.
US-11. USDOC Memorandum to File: Conversations with SAIL’s Counsel, dated 7 July 1999.
US-12. USDOC Third Deficiency Questionnaire to SAIL, dated 18 June 1999.
US-13. Letter from SAIL to USDOC Re: Late Filing , dated 28 June 1999.
US-14. Letter from USDOC to SAIL Re: Return of Untimely Information, dated 7 July 1999.
US-15. Letters from Counsel for Domestic Producers to USDOC Re: Request Cancellation of
Verification , dated 6 July 1999 and 20 August 1999.
US-16. DOC Memorandum Re: Preliminary Determination Facts Available for SAIL , dated
29 July 1999.
US-17. USDOC Fourth Deficiency Questionnaire to SAIL, dated 2 August 1999.
US-18. USDOC Fifth Deficiency Questionnaire to SAIL, dated 3 August 1999.
US-19. Letter from USDOC to SAIL Re: Granting of Extension of Time, dated 16 August 1999.

US-20. Letter fro m DOC to SAIL Re: Final Request for Useable Database, dated 12 July 1999.
US-21. USDOC Memorandum to the File re: Ex-Parte Meeting with Counsel for SAIL Regarding
Possible Suspension Agreement, dated 31 August 1999.
US-22. Commerce Regulation 19 C.F.R. § 351.308.
US-23. Statement of Administrative Action pages 864 -865 and 868 -871.
US-24. USDOC Addendum to Verification Report, dated 10 November 1999.
US-25. USDOC Determination of Verification Failure Memorandum, dated 13 December 1999.

I. INTRODUCTION
1. In this proceeding, India has launched a broad-based challenge to the ability of an investigating
authority – here, the US Department of Commerce (“Commerce”) – to require complete and accurate
information necessary to determine the existence of du mping. As we will demonstrate, this challenge is
based, in the first instance, on India’s fundamental misreading of the Antidumping Agreement (“AD
Agreement”) and India’s efforts to read into that Agreement language and obligations which do not exist
therein. In particular, India seeks this Panel’s endorsement of its narrow and unsupported reading of
Article 6.8 and Annex II of the AD Agreement – that the word “information” as used therein means, in
fact, “categories of information” as further defined by India. There is no basis in the AD Agreement for
India’s interpretation.
2. Then, we will turn to the US statute implemen ting the obligations in the AD Agreement. India
relies on a fundamental misinterpretation of the relevant US statutory provisions to claim that
sections 776(a), 782(d) and 782(e) of the Tariff Act of 1930, as amended, (“the Act”) constitute per se
violations of Article 6.8 and Annex II of the AD Agreement. As we demonstrate in detail below, these
provisions of US law are not susceptible to a claim of per se breach because they do not, as such, mandate
a breach of any WTO obligation. Moreover, these provisions are substantively identical to Article 6.8
and Annex II of the AD Agreement.
3. The real issue in this dispute is whether Commerce’s use of facts available with respect to the
Steel Authority of India, Ltd. (“SAIL”) was cons istent with Article 6.8 and Annex II of the AD
Agreement. Based on the text of the AD Agreement, the challenged determination was fully consistent
with the United States’ WTO obligations.
4. Finally, India attempts to broaden the obligation of Article 15 of the AD Agreement in a manner
that cannot be justified by the text.
5. This first submission of the United States is filed in response to India’s First Written Submission,
dated 19 November 2001. This submission by the United States: (1) clarifies the applicable standard of
review; (2) demonstrates that sections 776(a), 782(d) and 782(e) of the Act are fully consistent with
Article 6.8 and Annex II of the AD Agreement; (3) dem onstrates that nothing in Article 6.8 or Annex II
of the AD Agreement precludes the rejection of a questionnaire response that is overwhelmingly
deficient; (4) demonstrates that Commerce’s facts available determination with regard to SAIL was
consistent with Article 6.8 and Annex II of the AD Agreement; and (5) demonstrates that India’s claims
relating to obligations under Article 15 are baseless.
II. PROCEDURAL BACKGROUND
6. On 16 February 1999, Commerce received an antidumping petition from a group of domestic
steel producers alleging that certain cut-to-length carbon-quality steel plate products (“steel plate”) from
India and other countries were being dumped in th e United States, and were thereby injuring a US
industry.
1 In addition to alleging injurious dumping, the petition provided information demonstrating

1 Initiation of Antidumping Duty Investigations: Certain Cut-to-Length Carbon-Quality Steel Plate from the
Czech Republic, France, India, Indonesia, Italy, Japan, the Republic of Korea, and the Former Yugoslav Republic of
Macedonia (“Commerce Initiation Notice” ), 64 Fed. Reg. 12959 (16 March 1999) (Exh. IND-2).

reasonable grounds to believe or suspect that sales in India were made at prices below the cost of
production (“COP”).2
7. On 8 March 1999, Commerce initiated an investigation to determine whether imported steel plate
from India and other countries was being sold at less than fair value. 3 In addition, Commerce initiated a
country-wide cost investigation with respect to steel plate from India. 4 The period covered by this
investigation was calendar year 1998.
8. Commerce published its Preliminary Determination of Sales at Less Than Fair Value
(“Preliminary Determination”) on 29 July 1999. 5 Because SAIL was unable to provide information
necessary for the calculation of a dumping margin, Commerce resorted to information in the petition as
facts available and assigned a margin for SAIL of 58.50 per cent.6
9. Petitioners and respondents both submitted case and rebuttal briefs on 12 and 17 November 1999,
respectively, and a public hearing was held on 18 November 1999.
7
10. On 29 December 1999, Commerce published its Final Determination of Sales at Less Than Fair
Value (“Final Determination”).
8 The dumping margin for SAIL in the Final Determination was 72.49
per cent.9
11. On 10 February 2000, the USITC published its final determination, finding that an industry in the
United States was materially injured by reason of imports of the subject merchandise.10
12. On 10 February 2000, Commerce published its antidumping duty order in this case. 11
13. On 13 March 2000, SAIL initiated proceedings before the US Court of International Trade
(“CIT”), challenging Commerce’s Final Determination.
14. On 4 October 2000, India requested consultations with the United States pursuant to Article 4 of
the Understanding on Rules and Procedures Governing the Settlement of Disputes (“DSU”), Article 17 of
the Agreement on Implementation of Article VI of the GATT 1994 (“AD Agreement”), Article 30 of the
Agreement on Subsidies and Countervailing Measures (“ SCM Agreement ”), and Article XXII of the

2 Id. at 12969.
3 Id. at 12963.
4 Id. at 12965-66.
5 Notice of Preliminary Determination of Sales at Less Than Fair Value: Certain Cut-to-Length Carbon-
Quality Steel Plate from India (“Preliminary Determination”), 64 Fed. Reg. 41202, 41202 (29 July 1999) (Exh. IN-
11).
6 Id. at 41205.
7 Transcript of Hearing at USDOC, dated 18 November 1999 (Exh. IND-15).
8 Notice of Final Determina tion of Sales at Less Than Fair Value: Certain Cut-to-Length Carbon-Quality
Steel Plate from India (“Final Determination”), 64 Fed. Reg. 73126, 73126 (29 December 1999) (Exh. IND-17)
9 Id. at 73131.
10 Certain Cut-To-Length Steel Plate Products From France, India, Indonesia, Italy, Japan and Korea
(“USITC Final Determination”), 65 Fed. Reg. 6624, 6624 (10 February 2000).
11 Notice of Amendment of Final Determinations of Sales at Less Than Fair Value and Antidumping Duty
Orders: Certain Cut-To-Length Carbon-Qu ality Steel Plate Products From Fran ce, India, Indonesia, Italy, Japan
and the Republic of Korea (“Antidumping Duty Order”), 65 Fed. Reg. 6585, 6585 (10 February 2000) (Exh. IND-
18).

GATT 1994, with respect to, inter alia , the US Department of Commerce’s final antidumping
determination on cut-to-length steel plate from India.12 The United States and India held consultations in
Geneva on 21 November 2000, but were unable to resolve the dispute.
15. On 26 May 2001, the CIT issued a decision affirming Commerce’s decision to use total facts
available in determining an antidumping duty margin for SAIL. The CIT remanded the decision,
however, for further explanation as to Commerce’s basi s for determining that SAIL had failed to act to
the best of its ability to respond to Commerce’s information request. Commerce filed its explanation with
the CIT on 27 September 2001.13
16. On 7 June 2001, India requested the establishment of a panel pursuant to Article 6 of the DSU,
Article 17.4 of the AD Agreement, and Article XXIII:2 of the GATT 1994. India’s panel request alleged
violations of Articles 2.2, 2.4, 6.6, 6.8, 6.13, 9.3, 15, 18. 4 and Annex II of the AD Agreement, Article
VI:1 and VI:2 of the GATT 1994, and Article XVI:4 of the WTO Agreement.14
17. The Dispute Settlement Body established a pane l to review India’s allegations on 24 July 2001.15
Chile, the European Communities, and Japan reserved third party rights.
18. For the convenience of the Panel, further facts relating to the underlying antidumping
investigation have been organized and set forth belo w in terms of the issues raised for review. In
addition, each section of argument pertaining to each issue addresses the facts as necessary to the
argument of that issue.
III. FACTUAL BACKGROUND
A. APPLICATION OF FACTS AVAILABLE WITH REGARD TO SAIL
1. Major Deficiencies in SAIL’s Questionnaire Response
19. At the outset of the investigation, Commerce issued a standard antidumping questionnaire to
SAIL. This questionnaire requests the information that collectively is necessary for the investigating
authority’s antidumping analysis. 16 Commerce granted several extensions to SAIL for submitting its
initial questionnaire response.17
20. From 12 April 12 through 11 May 1999, SAIL submitted responses to the questionnaire. SAIL’s
failure to submit necessary information began early in the proceeding. For example, SAIL filed its 11
May 1999 database submission – including its reported US sales – late because of what it described as a

12 WT/DS206/1, 9 October 2000.
13 USDOC Redetermination on Remand (27 September 2001)(Exh. IND-21).
14 WT/DS206/2, 8 June 2001.
15 WT/DS206/3, 31October 2001.
16 USDOC Initial Antidumping Questionnaire to SAIL , Sections A, B, C and D, dated 17 March 1999 (Exh.
US-1). Section A of the questionnaire requested genera l information concerning the company's corporate structure
and business practices, the merchandise under investigation that it sells, and the sales of that merchandise in all
markets. Sections B and C of the questionnaire requested home market sales listings and US sales listings,
respectively. Section D of the questionnaire requested information regarding the cost of production of the foreign
like product and the constructed value of the merchandise under investigation.
17 Memoranda Granting Extensions, dated 14, 16, and 30 April 1999, (Exh. US-5).

“breakdown” in the computer programme being used by its US counsel to prepare the computer disk. 18
SAIL also indicated in its narrative response that “some of the data requested by the Department is still
being collected (because, e.g., it is available only in handwritten form). As soon as these data are
available we will submit them to the Department and revise the diskette accordingly.”19
21. After reviewing SAIL’s responses, Commerce identified numerous deficiencies and areas
requiring clarification and issued a supplemental questionnaire on 27 May 1999, covering SAIL's entire
initial questionnaire response.
20 SAIL’s Section A response required further information and/or
clarification in 13 areas.21 Additionally, further information and/or clarification were required in 17 areas
of SAIL’s home market sales response and five aspects of its US sales response. 22 S A I L ’ s c o s t o f
production information was the most seriously deficient, requiring significant further information and/or
clarification in 33 areas.23 In addition to identifying these specific deficiencies, Commerce notified SAIL
that:
there are two deficiencies which are major and need to be emphasized here. The first
deficiency is that the response is substantially incomplete to the point where we may not
be able to use the information contained therein to calculate a margin. Repeatedly
throughout the questionnaire response you make the statement that certain data are
unavailable and will be submitted later. For example, you only reported a subset of all
your home market sales, and we cannot determine which sales have been reported.
Because of your repeated failure to provide the information requested by the
questionnaire, and incompleteness of your responses to other questions, we are unable to
adequately analyze your company’s selling practices. The questions in the attachment
are limited accordingly. We anticipate having further questions once your questionnaire
response is more complete.
The second deficiency is that you failed to respond adequately to the entire section III of
section D, which requires an explanation of the response methodology. Indeed, almost
your entire response to this section is contained in Exhibits 9 and 10, which are not
responsive to the questions in this section. Moreover, you have not provided product-
specific cost information. This information is essential for an adequate analysis of your
company’s selling practices. After reviewing the attached questions that relate to section
D of the questionnaire, please contact the official in charge of the investigation to discuss
possible ways to provide more product-specific cost information.
24
22. On 3 and 8 June 1999, SAIL submitted certain clarifications supplementing its questionnaire
responses submitted on 26 April and 10 May 1999. On 11 June 1999, Commerce issued a second
deficiency questionnaire covering Sections A-C of SAIL's questionnaire response.25 Commerce requested
that SAIL provide more specific information on variables reported in its home market, US sales and cost

18 Letter from SAIL’s Counsel to USDOC Re: Breakdown/Extension Request, dated 11 May 1999 (Exh. US-
6).
19 Letter from SAIL’s Counsel to USDOC, dated 11 May 1999 (Exh. US-7).
20 USDOC First Deficiency Questionnaire to SAIL, dated 27 May 1999 (Exh. US-8 ).
21 Id. at Attach. 1, pp. 1-4.
22 Id. at pp. 4-10.
23 Id. at pp. 10-15.
24 Id.at cover letter from DOC to SAIL.
25 USDOC Second Deficiency Questionnaire to SAIL, dated 11 June 1999 (Exh. US-9) ( “Second Deficiency
Questionnaire”).

databases.26 T h i s Second Deficiency Questionnaire also identified inconsistencies between SAIL’s
narrative explanation and its reported data bases, inaccurate control numbers (“CONNUMs”),27 and other
necessary information. 28 Commerce further granted SAIL’s request for an extension to provide its
response to this deficiency questionnaire.29
23. On 16 June 1999, SAIL submitted revised home market and US sales electronic databases. 30
SAIL assured Commerce that the “revised database includes all of the individual home market sales that
were made during the period of investigation.” 31 According to SAIL, “[s]ome gaps still remain in the
database, but they are not significant and do not materially impact the dumping margin analysis.”32 On 18
June 1999, SAIL submitted certain data further supplementing its previous submissions.
2. Commerce’s Actions to Assist SAIL
24. During this time, Commerce staff took action to assist SAIL in supplying information by working
regularly with SAIL’s counsel to identify deficiencies in the electronic database, including deficiencies in
the reporting of US sales. 33 Among the specific deficiencies discussed were: 1) that SAIL provided no
explanation in its response for why certain sales data were not reported; 2) that SAIL’s home market and
US sales databases did not correspond, preventing performance of the test to determine whether home
market sales were made at less than the cost of production and precluding Commerce from assigning a
constructed value to specific products; 3) that certain information was missing entirely from the home
market database; and 4) that SAIL’s US database was missing several fields needed to perform the
necessary model match procedures to determine the proper comparisons of sales to be made to calculate
the dumping margin.
34
25. On 18 June 1999, Commerce issued its Third Deficiency Questionnaire – concerning SAIL's
Section D response – which SAIL had supplemented on 8 June 1999. 35 Specifically, Commerce
requested that SAIL provide supporting evidence for its reported “standard” cost of production.36 SAIL’s
responses were due on 28 June 1999.
3. SAIL’s Untimely Submissions
26. On 29 June 1999, SAIL made three submissions. The first two submissions were in response to
Commerce’s Third Deficiency Questionnaire and had been due the previous day, 28 June. SAIL’s

26 Id. at Attach. I. India’s Statement of Facts incorr ectly suggests that this questionnaire contained no
questions regarding SAIL’s US sales database. See India’s First Written Submission at para. 22. The deficiency
questionnaire specifically identified product classification and coding errors related to SAIL’s US sales database.
27 CONNUMs are used by Commerce to identify each product sold by its unique characteristics. Identical
products have identical CONNUMs; different products have different CONNUMs. The reporting of accurate
CONNUMs is essential for purposes of determining the sales of merchandise that should be compared to calculate a
company's dumping margin and for assigning a cost of production for each product.
28 USDOC Second Deficiency Questionnaire at Attach. II.
29 Id. at cover letter.
30 Letter from SAIL to USDOC, dated 16 June 1999 (Exh. US-10).
31 Id.
32 Id.
33 USDOC Memorandum to File: Conversations with SAIL’s Counsel, dated 7 July 1999 (Exh. US-11).
34 Id. at Attachment.
35 USDOC Third Deficiency Questionnaire to SAIL, dated 18 June 1999 (Exh. US-12).
36 Id. at Attachment I.

counsel explained that its courier had been unable to deliver the submissions to Commerce. 37 The third
submission responded to Commerce’s First Deficiency Questionnaire and had been due 18 June 1999.
SAIL did not provide any explanation for why this third submission was untimely filed. In accordance
with its own regulations (19 C.F.R. § 351.302(d)), Co mmerce explained that it must return all three
submissions to SAIL as untimely.38 Commerce cautioned SAIL that:
repeated throughout your submissions is the statement that certain data are unavailable
and will be supplied later. These statements are not substitutes for extension requests
under [section] 351.302 of the Department’s regulations. If you submit these data after
the deadline the Department has set for a response to its information requests, and the
Department has not formally granted you an extension, these data also will be returned to
you as late.
39
27. In addition, Commerce notified SAIL that the company had yet to address the major deficiencies
in its responses that had been identified one month previously:
The first deficiency, which was raised to your attention in our letter of 27 May 1999, is
that you still have not provided product-specific costs, nor adequately demonstrated that
such costs cannot possibly be derived from SAIL’s accounting records. Without product-
specific costs it is impossible to determine whether home market sales are being made at
prices below production costs, whether any adjustment for physical differences in
merchandise is warranted, and, where appropriate, whether constructed value has been
properly calculated.
The second deficiency is that your electronic database submissions have proven seriously
deficient and are currently unusable. We have made repeated requests and have yet to
receive the supporting documentation that customarily accompanies electronic database
submissions, including hard-copy examples of the database. Most troubling is that after
devoting significant amounts of time and attention to your tapes, we have had to ask you
to resubmit them on three separate occasions due to database flaws which prevent the
files on these tapes from loading. Because such a large amount of data is reviewable only
in electronic form, your repeated failure to provide usable electronic databases has
prevented us from adequately evaluating SAIL’s selling practices.
40

37 Letter from SAIL to USDOC Re: Late Filing , dated 28 June 1999 (Exh. US-13). SAIL stated that:
Our messenger left our offices at 4:30pm on Monday, 28 June, to file the enclosed submissions. He
returned at 5:30 p.m. saying that he arrived at the Commer ce Department too late to gain entry. The problem, as he
described it, was a combination of traffic congestion and refusal by the police to allow him to park near the
Commerce Department.
38 Letter from USDOC to SAIL Re: Return of Untimely Information, dated 7 July 1999 (Exh. US-14).
39 Id. at 2.
40 Id. at 1.

28. On 6 July 1999, domestic producers submitted comments regarding deficiencies in SAIL's
questionnaire responses. Domestic producers argued that SAIL should not be permitted to submit a new
cost response and that any scheduled verification be cancelled.41
4. Continued Actions by Commerce to Assist SAIL
29. On 12 July 1999, Commerce issued a letter to SAIL providing it with a final opportunity to
submit a reliable electronic database and information on product-specific costs:
As discussed previously with you, and as identified in earlier supplemental
questionnaires, these databases have been fraught with problems and are not yet useable.
On 6 July[,] we described in a telephone conversation and in a memorandum to the file,
the remaining database errors that, given the state of your tapes, we could identify as
requiring attention and correction. You have until Friday 16 July, to submit revised tapes
to the Department. After that date, any other electronic submissions that you make will
be returned to you unless the Department has specifically requested further tape filings.
42
30. On 16 July 1999, one business day before the agency’s preliminary determination, SAIL filed a
revised electronic database and proposed a product-specific cost methodology. Commerce accepted the
submission, but, given the timing of the submission, there was no possibility that the revised data could
be analyzed in time for the preliminary determination.
31. For purposes of the preliminary determination, Commerce calculated a margin for SAIL based
entirely on facts available. In its Preliminary Determination Facts Available Memorandum, Commerce
chronicled in detail the bases for its concerns regarding SAIL’s timeliness and completeness of
information and its problematic database submissions. 43 Commerce also outlined its concerns regarding
SAIL’s failure to submit product-specific costs.44
32. In its public notice, Commerce summarized its findings on this issue:
We have determined that the use of facts available is appropriate for SAIL for purposes
of this preliminary determination. Although SAIL filed a questionnaire response, it
contained numerous errors. Moreover, because of the problems with the electronic
databases that SAIL submitted, its questionnaire response cannot be used to calculate a
reliable margin at this time. Section 776(a)(2)(B) of the Act provides that the
administering authority shall use facts otherwise available when an interested party “fails
to provide such information by the deadlines for the submission of the information or in
the form and manner requested.'' Therefore, the use of facts available is warranted in this
case.
45

41 Letters from Counsel for Domestic Producers to USDOC Re: Request Cancellation of Verification , dated
6 July 1999 and 20 August 1999 (Exh. US-15).
42 Letter from DOC to SAIL Re: Final Request for Useable Database, dated 12 July 1999 (Exh. US-20).
43 DOC Memorandum Re: Preliminary Determination Facts Available for SAIL , dated 29 July 1999 (Exh.
US-16), at Attach. I & II.
44 Id. at Attach. I.
45 Preliminary LTFV Determination at 41203.

33. Commerce also concluded that, despite numer ous opportunities and extensions of time, “SAIL
did not act to the best of its ability to provide the information requested.”46 Commerce identified the three
inter-related problems with SAIL’s questionnaire response: (1) technical errors in its electronic databases;
(2) lateness and incompleteness of certain narrative portions of its questionnaire response; and (3) the lack
of product-specific costs.47
34. Commerce also explained its decision to apply, as adverse facts available, the average of the
margins alleged in the petition, rather than the highest margin alleged in the petition:
For the preliminary determination, we assigned SAIL the average of the margins in the
petition, which is 58.50 per cent. Although we find that SAIL did not fully cooperate to
the best of its ability, SAIL tried to provide the Department with the data requested in the
antidumping questionnaire. Recognizing SAIL's attempts to respond to the Department's
information requests, and in light of its claimed difficulties, we do not believe that it is
appropriate to assign the highest margin alleged in the petition at this time.
48
5. Commerce’s Final Efforts to Assist SAIL, Including the Decision to Proceed with
Verification
35. Commerce continued to collect data that it hoped would be sufficient for verification and for use
in the final determination. On August 2, 1999, Commerce issued its Fourth Deficiency Questionnaire
that sought to resolve continuing deficiencies in SAIL’s July 16, 1999 submission. 49 The next day,
Commerce provided SAIL with its Fifth Deficiency Questionnaire, listing twelve areas that required
further information or clarification in preparation for the verification scheduled for the following month.50
36. On 16 August 1999, Commerce granted SAIL’s request for an additional extension due to
logistical difficulties in collecting data and further revisions that its cost data required. 51 In addition to
filing corrected data, SAIL detailed how it would reconcile these data during verification. At no time
during this period did SAIL indicate that it could not provide the data necessary for a margin analysis.
37. On 12 and 23 August 1999, Commerce provided SAIL with outlines of the agenda and
procedures to be followed during the on-site sales and cost verifications in India. 52 On 20 and 26 August
1999, domestic producers argued that SAIL “has again failed to provide product-specific costs as
requested” and argued that Commerce should cancel verification. 53 Nevertheless, Commerce proceeded
with the sales and cost verifications. These verifications were conducted during a 2½ week period, from
August 30-September 15, 1999. On September 1 and 8, 1999, SAIL submitted corrections discovered
during preparation for verification, including a revised computer disk for certain sales.
54 Notwithstanding
these corrections, significant additional problems were discovered during the verification.

46 Id.
47 Id. at 41203-04.
48 Id. at 41204.
49 USDOC Fourth Deficiency Questionnaire to SAIL, dated 2 August 1999 (Exh. US-17).
50 USDOC Fifth Deficiency Questionnaire to SAIL , dated 3 August 1999 (Exh. US-18).
51 Letter from USDOC to SAIL Re: Granting of Extension of Time, dated 16 August 1999 (Exh. US-19).
52 See, e.g., USDOC Verification Outline for SAIL, dated 12 August 1999 (Exh. IND-12).
53 Letters from Counsel for Domestic Industry to USDOC Re: Cancellation Requests of Verification , dated
6 July 1999 and 20 August 1999 (Exh. US-15).
54 SAIL Corrected US Sales Database, computer printout, dated 1 September 1999 (Exh. IND-8).

6. The Sales Verification
38. The sales verification report summarizes the findings made during the on-site verification.
Commerce made the following findings:
SAIL had under-reported home market prices for a significant percentage of sales.
SAIL double-counted sales made by the Rourkela Steel Plant.
SAIL was unable to demonstrate that the quantity and value of home market sales were
properly reported.
The reporting of plant sales was incorrect in nearly every possible way -- quantity and
value were under-reported, prices and adjustments were inaccurate, and sales of prime
and non-prime merchandise were mixed up.55
Commerce also stated that it found “numerous coding errors in the home market database.”56
39. Commerce also discovered errors in the US sales database. Commerce explained that “[w]hile
testing US sales for model match purposes, we found an incorrectly reported model match criterion.” 57
Commerce further noted that this error affected a preponderance of SAIL’s export sales to the United
States. Commerce also explained that SAIL had failed to report certain product control numbers in the
cost of production database. According to Commerce, the missing control numbers were related to the
primary type of steel plate exported by SAIL to the United States during the period of investigation.
Commerce later explained that it was difficult for its verification team to evaluate whether the reporting
of product specification/grade was accurate because SAIL had prepared no supporting verification
exhibits.
58
7. The Cost Verification
40. A separate cost verification report details the findings made during the on-site verification of
SAIL’s reported costs. Significant problems with SAIL’s cost data were identified:
Company officials stated that the total cost of manufacture (TCOM), and the variable
COM (VCOM) on the COP tape submitted 17 August 1999, are incorrect. There is no
way to establish a meaningful correlation between the TCOM and VCOM on the tape and
the underlying cost data and sources documents. On the first day of verification, SAIL
presented a completely revised COP tape, as part of the correction presented in exhibit C-
3. It was not clear the extent to which this tape should be considered “new information”.
Accordingly, we did not accept it. . . .
Although the COP tape was incorrect, and a new revised COP tape was not accepted, we
proceeded with verification because the {sic} cost information underlying the reported
per-unit COP was still verifiable--that is the actual average cost for plates and normalized

55 Sales Verification Report, dated 4 November 1999 (Exh. US-4) (public version) at 4-5.
56 Id. at 5.
57 Id. at 5, 12.
58 USDOC 10 November 1999 Addendum to Verification Report, Exh. US-24 (public version) at 1.

plates at each plant . . . and the data underlying the indices developed by SAIL for
calculating product-specific costs . . . .59
As detailed in the verification report, the COP information could not be verified. Commerce identified
numerous other problems in SAIL’s reported costs.
60
8. Determination of Verification Failure
41. On 18 November 1999, Commerce held a public hearing was held to allow interested parties to
comment in preparation for the final determination.61
42. After consideration of the facts, the parties’ arguments, and the applicable statute, Commerce
determined that SAIL had failed verification and that application of adverse facts available was required
to determine the margin of dumping. The agency’s Determination of Verification Failure Memorandum
was issued on 13 December 1999, and outlined the significant findings at verification.
62 Commerce
explained that:
[w]henever serious problems arise at verification we must determine whether the
problems can be isolated and perhaps dealt with by the selective use of adverse inferences
or are so significant as to undermine the integrity of the whole response.63
43. With respect to the home market sales portion of the questionnaire, Commerce explained that:
[a]t verification one of the primary goals is to ensure that all home market sales were
reported meaning that all sales are reported and that the prices and adjustments are
reported correctly in the sales listing. An integral part of ensuring the proper reporting of
sales is verifying the negative, i.e., looking for unreported sales (or discounts). This
requires reconciling the company’s records for sales of subject merchandise to the
reported quantity and value.
As detailed in the Sales Verification Report, the problems encountered were such that we
could not ensure that home market sales were properly reported. We have no way of
knowing how many sales of subject mercha ndise may have been made in the home
market. The fact that SAIL could not tie the reported quantity and value for sales of
subject merchandise to the company’s financial records and that prices were under-
reported for a significant percentage of home market sales undermines the credibility of
SAIL’s records. Taken together these problems resulted in our inability to establish that
home market sales were properly reported.
64
Regarding SAIL’s COP/CV data, Commerce stated that:

59 Cost Verification Report, dated 4 November 1999 (Exh. US-3) (public version) at 2.
60 Id. at 2-3.
61 Transcript of Hearing at USDOC (18 November 1999) (Exh. IND-15).
62 USDOC Determination of Verification Failure Memorandum, dated 13 December 1999 (Exh. US-25).
63 Id. at 4.
64 Id. at 4-5.

[o]n the first day of verification SAIL company officials stated that the cost tape
submitted was inaccurate and could not be tied to existing books and records. In
addition, SAIL failed even to submit Constructed Value (“CV”) data for US sales. Thus,
there is no useable COP or CV data on the record. Despite the fact that the aggregate
product-specific COP data were inaccurate, and there were no CV data at all, we
nevertheless reviewed the [sic] underlying components of the aggregate costs. Here too
we find widespread errors and inaccuracies.
65
44. Finally, in describing several errors in the US sales database, Commerce explained that:
[w]hile these errors, in isolation, are susceptible to correction, when combined with other
pervasive flaws in SAIL’s data, these errors support our conclusion that SAIL’s data on
the whole is unreliable.66
9. The Final Determination
45. Commerce provided a comprehensive summary of these facts and its decision to base its margin
calculation upon adverse facts available in the Final Determination:
[T]he use of facts available is appropriate for SAIL for purposes of the final
determination, pursuant to section 776(a)(2)(A), (B), and (D) of the Act. With respect to
subsection (A), at verification the Department discovered that SAIL failed to report a
significant number of home market sales; was unable to verify the total quantity and
value of home market sales; and failed to provide reliable cost or constructed value data
for the products. See Home Market and United States Sales Verification Report (``Sales
Report''), dated 3 November 1999; see also Cost of Production and Constructed Value
Verification Report (``Cost Report''), dated 3 November 1999. With regard to subsection
(B), SAIL was provided with numerous opportunities and extensions of time to fully
respond to the Department's original and supplemental questionnaires, as well as ample
time to prepare for verification. However, even with numerous opportunities to remedy
problems, SAIL failed to provide reliable data to the Department in the form and manner
requested.
With respect to section 776(a)(2)(D) of the Act, we note that as a result of the widespread
problems encountered at verification, SAIL's questionnaire responses could not be
verified. See Sales Report and Cost Report. See Memorandum to the File: Determination
of Verification Failure (``Verification Memo''), dated 13 December 1999.
67
46. In addition, Commerce addressed the statutory requirement that parties be advised of deficiencies
in their submissions:
With respect to section 782(d), we gave SAIL numerous opportunities and extensions to
submit complete and accurate data. As stated in the Preliminary Determination, SAIL's
questionnaire and deficiency questionnaire responses were found to be substantially
deficient and untimely for purposes of calculating an accurate antidumping margin. See

65 Id. at 5.
66 Id.
67 Final Determination at 73126-27.

Preliminary Determination. However, subsequent to the preliminary determination we
issued two additional questionnaires and further extensions to SAIL presenting it yet
additional opportunities to submit a complete and accurate electronic database.
Nevertheless, the Department found at verifi cation that the final submission was again
substantially deficient . . . .Therefore the Department may ``disregard all or part of the
original and subsequent responses,'' subject to subsection (e) of section 782.
68
47. In a separate section of the Final Determination , Commerce specifically addressed SAIL’s
comments that Commerce should determine that the company cooperated to the best of its ability:
SAIL has consistently failed to provide reliable information throughout the course of this
investigation. At the preliminary determination we relied on facts available because
widespread and repeated problems in SAIL's questionnaire response rendered it
unuseable for purposes of calculating a margin. These problems recurred despite our
numerous and clear indications to SAIL of its response deficiencies. Even though we
rejected use of SAIL's questionnaire response at the preliminary determination, because
the company was seemingly attempting to cooperate, albeit in a flawed manner, we
continued to collect data after the preliminar y determination in an attempt to gather a
sufficiently reliable database and narrative record for verification and for use in the final
determination. The Department also rejected petitioners' request that verification be
cancelled in light of the response deficiencies. However, as evidenced by the summary
below, SAIL was unable to provide the Department with useable information to calculate
and determine whether sales were made at less than fair value.
69
48. Commerce then proceeded to summarize in detail the deficiencies in the previously-identified
areas of completeness, timeliness, and workability of computer tapes and the fact that SAIL failed
verification.70
49. Commerce disagreed with SAIL's characterization that its US sales were accurate, timely
submitted, and verified:
In fact, the US sale database contained certain errors, as revealed at verification. See
Sales Report; see also Verification Memo. Moreover, we disagree with SAIL that we are
required by the Act to use SAIL's reported US prices. SAIL cites to [judicial and
administrative cases] as support for the contention that the Department does not resort to
total facts available if there are deficiencies in the respondent's submitted information. It
is the Department's long-standing practice to reject a respondent's questionnaire response
in toto when essential components of the response are so riddled with errors and
inaccuracies as to be unreliable. See Steel Wire Rod from Germany . SAIL's argument
relies on a mischaracterization of our practice with respect to so-called ``gap-filler'' facts
available. SAIL argues that the Department should fill in the record for home market
sales, cost of production, and constructed value as if there were a mere ``gap'' in the
response, as opposed to the entire record. Thus respondent's arguments and citations to
these cases are inapposite. In each of the above-mentioned cases, the majority of the
information on the record was verified and useable; there were only certain small areas of

68 Id. at 73127.
69 Id. at 73129-30.
70 Id. at 73130.

information which required the Department to {use} facts otherwise available to
accurately calculate a dumping margin. The Department's long-standing practice of
filling in gaps or correcting inaccuracies in the information reported in a questionnaire
response, often based on verification findings, is appropriate only in cases where the
questionnaire response is otherwise substantially complete and useable. In contrast, in
this case, SAIL's questionnaire response is substantially incomplete and unuseable in that
there are deficiencies concerning a significant portion of the information required to
calculate a dumping margin. To properly conduct an antidumping analysis which
includes a sales-below-cost allegation, the Department must analyze four essential
components of a respondent's data: US sales; home market sales; cost of production for
the home market models; and constructed value for the US models. Yet SAIL has not
provided a useable home market sales database, cost of production database, or
constructed value database. Moreover, the US sales database would require some
revisions and corrections in order to be useable. As a result of the aggregate deficiencies
(data problems and SAIL's responses), the Department was unable to adequately analyze
SAIL's selling practices in a thorough manner for purposes of measuring the existence of
sales at less than fair value for this final determination. See Sales Report and Cost
Report.
71
50. Finally, regarding SAIL’s argument that US law, specifically section 782(e) of the Act, required
Commerce to utilize SAIL’s US sales data in calculating a dumping margin, Commerce explained that:
Section 782(e) of the Act states that the Department shall not decline to consider
information deemed “deficient'' under section 782(d) provided that subsections (1), (2),
(3), (4), and (5) of section 782(e) are met. In the instant investigation, record evidence
supports the finding that SAIL did not meet these requirements . . . . With regard to each
respective subsection of 782(e): (1) SAIL did not provide information in a timely
manner; (2) the information submitted could not be verified; (3) essential components of
the information ( e.g., home market sales and cost information) are so incomplete that it
cannot be used as a reliable basis for reaching a determination; (4) SAIL did not act to the
best of its ability in providing the information and meeting the requirements established
by the administering authority; and (5) the information cannot be used without undue
difficulties. Accordingly, we are applying a margin based on total facts available to
SAIL in the final determination.
72
51. As a result, Commerce determined that SAIL’s information was unusable and not a reliable basis
upon which to calculate a margin. Moreover, because Commerce determined that SAIL did not act to the
best of its ability, it used an adverse inference in selecting the highest margin alleged in the petition as
facts available.
52. SAIL subsequently challenged the Final Determination at the CIT.
10. The Remand Determination
53. On 26 May 2001, the CIT affirmed Commerce’s decision to reject SAIL's information as
unusable and use facts available in determining an antidumping duty margin for SAIL. The CIT

71 Id. at 73130.
72 Id. at 73130-31.

remanded the decision, however, for further explanation as to Commerce’s basis for determining that
SAIL had failed to act to the best of its ability. Contrary to India's contention, the CIT did not "reverse"
Commerce's determination that SAIL had not acted to the best of its ability; it simply remanded the case
for further explanation by Commerce on this point.
54. Commerce filed its explanation with the CIT on 27 September 2001. 73 In that determination,
Commerce summarized the factual and legal basis for its finding that SAIL had failed to act to the best of
its ability.
55. First, Commerce explained its finding that SAIL possessed the necessary information and that it
had the ability to provide the information in compliance with Commerce's information requests.
Commerce explained its information collection process as follows:
Although responding to the antidumping questionnaire can be a demanding exercise, it is
tailored so that it can be completed by compan ies that keep audited records of their sales
and costs. Every year, Commerce sends essentially the same questionnaire to dozens of
foreign producers, and the great majority of these respondent companies is able to
provide the necessary information. Although Commerce modulates the level of detail
and (importantly) the type of computerization required in order to accommodate each
company’s unique circumstances, in the main, Commerce solicits much the same type of
information from each company. As a general matter, it is reasonable for Commerce to
conclude that, if companies with fewer resources can respond fully and adequately to an
antidumping questionnaire in a timely manner, a company with the resources and
expertise of SAIL, that does not inform the Department otherwise in a timely fashion, is
also capable of doing so.
74
56. Commerce also explained that the respondent ultimately controls the information necessary for an
anti-dumping determination:
It should be noted that Commerce has very limited knowledge of the actual extent of a
respondent’s ability to comply with requests for information. It is the respondent, not
Commerce, that possesses the necessary information and knowledge of the company’s
operations and records. Therefore, it is incumbent on the respondent to demonstrate why
it is incapable of providing requested information in a timely manner. Commerce cannot
rely on mere assertions of vague “difficulties” or inability to comply as a basis for
concluding that a respondent acted to the best of its ability.
That is why the Department requires the reason why a party has failed to provide
requested data. Without a specific, compelling explanation, Commerce generally has no
means of discerning if a respondent is truly incapable of complying. If there was some
circumstance beyond SAIL’s control that prevented it from responding adequately and in
a timely manner, it did not offer any such explanation. SAIL has not demonstrated that
its failure to respond accurately is excused “because it was not able to obtain the
requested information, did not properly understand the question asked, or simply
overlooked a particular request.” Manne smannrohren-Werke AG v. United States, 77
F.Supp. 2d 1302, 1316 (CIT 2000) (Mannesmann I). The information that SAIL failed to

73 USDOC Redetermination on Remand (September 27, 2001) (Exh. IND-21).
74 Id. at 2-3.

provide was within its own control. Moreover, SAIL was provided with substantial
guidance on the questions asked, and its failure was more comprehensive than the simple
oversight of a particular request.75
57. Commerce again summarized the facts of its attempt to obtain necessary information from SAIL:
During the underlying investigation, SAIL did advise Commerce that it was experiencing
difficulties in gathering and submitting the requested information. Typically, however,
these difficulties were offered to justify requests for additional time to submit information
(which the Department repeatedly granted) and were often accompanied by assurances
that the information would be forthcoming. For example, in its 11 May 1999, database
submission -- which was filed late due to a computer “breakdown” -- SAIL indicated that
“some of the data requested by [Commerce] is still being collected (because, e.g. it is
available only in handwritten form). As soon as these data are available we will submit
them to the Department and revise the diskette accordingly.” Def. Ex. 5, C.R. 7. Thus,
in the underlying proceeding, SAIL’s reference to handwritten records was given as an
example of why it needed additional time. SAIL did not indicate that it would be unable
to provide a usable database; on the contrary, it promised that such a database would be
forthcoming. As a result, we disagree with SAIL’s suggestion, Pl.’s Mem. Supp. Mot. J.
Agency R. at 32, that its identification of these logistical difficulties demonstrates that it
could not comply with the information requests. In Commerce’s view, the record
demonstrates that SAIL could comply with the request for data, and SAIL never offered
any valid explanation of circumstances that rendered it incapable of complying with those
requests.
In the underlying proceeding, the Department repeatedly requested that SAIL remedy
deficiencies in its response and SAIL gave every indication that it would comply with the
agency’s information requests. Where information was not provided initially, SAIL
indicated that it would be submitted as soon as it became available and that unuseable
computer tapes would be revised accordingly. See, e.g.
, Def. Ex. 5, C.R. 7; see also Def.
Ex. 11, C.R. 17 (SAIL submitted revised computer tapes and stated that all home market
sales made during the period were provided). At SAIL’s behest, Commerce took the
unusual step of permitting the submission of significant amounts of information after the
preliminary determination; SAIL assured Commerce that this new data could be verified.
Def. Ex. 25, C.R. 33. All of these representations suggest that SAIL itself believed it
could comply with the requests for information. In such circumstances, it is reasonable
for Commerce to conclude that SAIL had asse ssed its own operations and knew that it
could fulfill its representations. This Court has held that it is “reasonable for Commerce
to charge [a respondent] with knowledge of its own operations.” Mannesmannrohren-
Werke AG v. United States, Slip Op. 00-126 (CIT 5 October 2000) (Mannesmann II ).
Therefore, even accepting that SAIL’s efforts were made in good faith “does not relieve
its burden to respond to the best of its ability, and its ‘ability’ includes possessing
knowledge of its business operations.” Id.76
58. Finally, Commerce addressed SAIL's suggestion that it could not provide the necessary
information:

75 Id. at 3.
76 Id. at 3-4 (footnotes omitted).

To conclude that SAIL tried its best but simply could not report accurate information
about its home market sales or production costs is not credible. SAIL is one of the largest
integrated steel producers in the world, with significant expertise in many areas and
significant resources at its disposal. For example, SAIL has an established accounting
system and its books are audited annually by a large team of public accountants. See,
e.g., SAIL Section A Response, C.R. 5, at Exhibit A-9 (SAIL Annual Report).
Moreover, because SAIL is predominantly owned by the Indian Government, SAIL is
accountable for a variety of additional Government accounting requirements. Based on
the information available to Commerce, we conclude that SAIL had the ability to comply
with the information requests. In sum, SAIL is and should be accountable for the
information recorded in its books and records. To conclude otherwise would allow
respondents to provide only the most rudimentary information, without regard to the
information actually required for an investigation. More importantly, to allow a
respondent to select the information it will submit provides a major incentive for self-
serving behaviour – supplying information that is generally favorable while claiming that
it cannot supply information that might prove unfavourable to respondent . . . .
This investigation may have been SAIL’s “first real brush with US antidumping law,” []
but SAIL has provided us with no information that indicates it could not comply with the
information requests made by Commerce. Thus, it is reasonable for Commerce to
conclude that SAIL had the resources and ability to comply with Commerce’s
questionnaire but inexplicably failed to do so.
77
B. COMMERCE’S CONSIDERATION OF SAIL’S PROPOSED SUSPENSION AGREEMENT
59. In a letter dated 29 July 1999, SAIL submitted a proposed agreement to suspend 78 the
investigation to “address any problems that might be caused by imports of {cut-to-length} plate from
India.”79 On 31 August 1999, a meeting was held with counsel for SAIL, Commerce’s Assistant
Secretary for Import Administration and other officials to discuss the antidumping suspension agreement
proposal from India. 80 During the meeting, the Department stated that it “would consider the
respondent’s request, but noted that suspension agreements are rare and require special circumstances.” 81
The Department also discussed the fact that “the requisite circumstances may not exist at the present
time,” and eventually denied the request.82
IV. STANDARD OF REVIEW
60. The AD Agreement is unique among the WTO agreements in providing its own standard for a
WTO panel’s review of an anti-dumping determination by an investigating authority. That standard is set
forth in Article 17.6 in two parts: the first concerns review of questions of fact and the second concerns

77 Id. at 4-5 (footnotes, citations omitted).
78 Note that a suspension agreement is otherwise known as a price undertaking.
79 Letter from SAIL’s Counsel to USDOC Re: Request for a Suspension Agreement , dated 29 July 1999
(Exh. IND-10).
80 USDOC Memorandum to the File re: Ex-Parte Meeting with Counsel for SAIL Regarding Possible
Suspension Agreement, dated 31 August 1999 (Exh. US-21).
81 Id.
82 Id.

review of issues of law. In its submission, India acknowledges this concept. 83 However, India also
claims that another standard, described in United States - Transitional Safeguard Measure on Combed
Cotton Yard from Pakistan , also applies. As explained below, this is an incorrect reading of the WTO
agreements. Furthermore, India states that Article 17.6 requires this Panel to effectively ignore the
policies and procedures underlying US law and its appl ication, thereby distorting the standard of review
which this Panel is to apply. The proper standard is described below.
A. REVIEW OF AN AUTHORITY’S ESTABLISHMENT AND ASSESSMENT OF THE FACTS:
PANELS MAY NOT ENGAGE IN DE NOVO REVIEW
61. Article 17.6(i) of the AD Agreement provides that:
(i) in its assessment of the facts of the matter, the panel shall determine whether the
authorities' establishment of the facts was proper and whether their evaluation of
those facts was unbiased and objective. If the establishment of the facts was
proper and the evaluation was unbiased and objective, even though the panel
might have reached a different conclusion, the evaluation shall not be overturned.
62. In other words, a panel may not conduct its own de novo evaluation of the facts if the authority’s
establishment of the facts is proper and its evaluation of the facts is unbiased and objective. As
articulated by the Appellate Body in United States - Antidumping Measures on Certain Hot-Rolled Steel
Products from Japan (“Hot-Rolled AB Report” ), pursuant to Article 17.6(i) and Article 11 of the DSU,
both of which require an “objective” assessment of the facts, “the task of panels is simply to review the
investigating authorities’ ‘establishment’ and ‘evaluation’ of the facts.”
84
63. In order to ‘establish’ and “evaluate’ the facts, Article 17.6(i) notes that a panel must determine
(1) if the establishment of the facts on the record was “proper,” given the overall investigation or review
under scrutiny by the panel and (2) if the investigating authority’s determination, based upon the facts on
the record, was unbiased and objective.
85 “Proper,” as defined by the Oxford Standard Dictionary, means
“suitable” or “appropriate.”86 Thus, a panel must review all of the facts on the record and determine if the
investigating authority appropriately considered the facts of the record and applied those facts in an
objective, unbiased manner in making its final determination.
64. Once a panel makes an objective assessment of the investigating authority’s establishment of the
facts, pursuant to17.6(i), it is well established that even if a panel disagrees with an agency’s findings, as
long as the investigating authority’s findings are based upon properly-applied facts and its decision has
been made in an objective, unbiased manner, then the panel may not substitute its judgment for that of the
investigating authority.
87 This applies even if the panel – had it stood in the shoes of that authority
originally– might have decided the matter differently.

83 First Submission of India at para. 49.
84 United States - Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan , Report of the
Appellate, WT/DS184/AB/R, adopted 23 August 2001, para. 55 (“ Hot-Rolled AB Report”) . See also Article 21.5
Recourse Decision, Mexico-Anti-Dumping Investigation of High Fructose Corn Syrup (“HFCS AB Report”) From
the United States , WT/DS132/AB/RW, adopted 22 October 2001, para 130. Article 11 of the DSU imposes upon
panels a comprehensive obligation to make an “objective assessment of the matter.”
85 See Hot-Rolled AB Report, para 55.
86 The New Shorter Oxford English Dictionary, Clarendon Press, Oxford (1993) (definition III).
87 See Hot-Rolled AB Report, para. 56.

65. Several panels have stressed that a panel review is not a substitute for proceedings conducted by
national investigating authorities, and that the role of panels is not to conduct a de novo rev iew o f th e
factual findings of a national investigating authority. This standard of review has been articulated by both
WTO panels and GATT panels:
[T]he Panel was not to conduct a de novo review of the evidence relied upon by the
United States authorities or otherwise to substitute its judgment as to the sufficiency of
the particular evidence considered by the United States authorities.88
This concept is extremely important because, as noted in Thailand - H-Beams from Poland , “the aim of
Article 17.6(i) is to prevent a panel from ‘second-guessing’ a determination of a national authority when
the establishment of the facts is proper and the evaluation of those facts is unbiased and objective.”89
66. In reviewing the facts of the record, WTO panels are directed to look to the entire administrative
record of an investigation. India argues that the Panel is required to review SAIL’s US sales data
specifically, apply the four conditions of Annex II, paragraph 3 only to that data, and then to make its
determination exclusively based upon that analysis. This is a misreading of the AD Agreement. Article
17.6(i), on its face, applies to all of the “facts of a matter,” and does not affirmatively segregate between
respondent-selected segments of submissions. Thus, this Panel must “examine whether the evidence
relied upon by the [investigating authority] was sufficient, that is, whether an unbiased and objective
investigating authority evaluating that evidence” could properly have reached its determination.
90
B. REVIEW OF AN AUTHORITY’S INTERPRETATION OF THE AD AGREEMENT: PANELS
MUST RESPECT MULTIPLE, PERMISSIBLE INTERPRETATIONS
67. Article 17.6(ii) applies to the legal standard of review:
(ii) the panel shall interpret the relevant provisions of the Agreement in accordance
with customary rules of interpretation of public international law. Where the
panel finds that a relevant provision of the Agreement admits of more than one
permissible interpretation, the panel shall find the authorities’ measure to be in
conformity with the Agreement if it rests upon one of those permissible
interpretations.
68. In reviewing legal questions that turn on the pr oper meaning to be ascribed to the AD Agreement,
subparagraph (ii) of Article 17.6 provides that, where a relevant provision of the AD Agreement is subject
to more than one permissible interpretation, a WTO panel shall find the anti-dumping measure in question
to be in conformity with the Agreement if it is based on any of those permissible interpretations.

88 Mexico - Anti-Dumping Investigation of High Fructose Corn Syrup (“HFCS”) from the United States ,
WT/DS132/R (Jan. 28, 2000), para. 7.56. The HFCS panel was citing from Guatemala-Anti-Dumping Investigation
Regarding Portland Cement From Mexico , WT/DS60/R, adopted 19 June 1998. The la nguage is actually taken
from United States - Measures Affecting Import of Softwood Lumber from Canada , SCM/162BISD40S/358, adopted
27-28 October 1993, para. 335.
89 Thailand - Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-
Beams from Poland , Report of the Appellate Body, WT/DS122/AB/R, adopted 12 March 2001, paras. 117-18
(“Thailand H-Beams from Poland” ).
90 HFCS, para. 7.57.

69. Thus, Article 17.6(ii) reflects a deliberate choice by the negotiators to recognize the possibility of
multiple interpretations. In this sense, Article 17.6(ii) constitutes an admonition to panels to take special
care, as clearly stated in Articles 3.2 and 19.2 of the DSU, not to add to the obligations of Members.
70. In sum, Article 17.6(ii) instructs panels that, if the terms of the Agreement admit of multiple
permissible interpretations, they must find an authority’s action conforms with the AD Agreement if it
conforms to one of those interpretations. Thus, the relevant question in every case is not whether the
challenged determination rests upon the best or the “correct” interpretation of the AD Agreement, but
whether it rests upon a “permissible interpretation” (of which there may be many).
71. India does not disagree with the above analysis, but by citing to Transitional Safeguard Measure
on Combed Cotton Yarn From Pakistan (“Yarn from Pakistan ”),91 attempts to add to the obligations of
investigating authorities, pursuant to Article 11 of th e DSU, in determining if the investigating authority
has “complied with their obligations.” Article 1.2 of the DSU, however, provides that “special or
additional rules and procedures on dispute settlement contained in covered agreements” shall prevail over
the more general rules and procedures of the DSU to the extent of any differences. As explained
previously, the AD Agreement is unique among the WTO Agreements in that it contains a specified
“standard of review.” Therefore, the decision in Yarn From Pakistan is irrelevant, because the Panel in
that case had no special standard of review provision to apply.
72. Thus, in applying the Textiles Agreement in Yarn From Pakistan , the Appellate Body was
enunciating the standard pursuant to DSU Article 11 for an “objective” review of the facts. In the case at
hand, however, Articles 17.6(i) and (ii) of the AD Agreement provide for the standard of review by which
a panel should make its determination. The Appellate Body has never stated that in addition to the
requirements of Article 17.6, a panel reviewing a measure under the AD Agreement must also implement
the test articulated in Yarn From Pakistan.
73. In summary, this Panel should review the entire record and all of the facts contained therein. In
that context, this Panel should assess whether Commerce’s application of facts available in this
investigation was conducted in an unbiased and objective manner. Furthermore, this Panel should
determine, based upon the complete record, whether the United States’ legal analysis is a permissible
interpretation of its obligations under the AD Agreement.
V. LEGAL ARGUMENT
A. INTRODUCTION
74. Customary rules of interpretation of public international law, as reflected in Article 31(1) of the
Vienna Convention, provide that a treaty “shall be interpreted in accordance with the ordinary meaning to
be given to the terms of the treaty in their context and in the light of its object and purpose ” (emphasis
added). The purpose of treaty interpretation is, as stated in Article 31 of the Vienna Convention, to give
effect to the intention of the parties to the treaty as expressed in their words read in context.
75. Article VI of the GATT 1994 (“Article VI”) authorizes WTO Members to impose anti-dumping
duties in order to remedy injurious dumping. The object and purpose of Article VI is to provide a remedy
to Member countries that are faced with dumped imports that cause or threaten material injury. Article
VI:1 states that "dumping . . .is to be condemned if it causes or threatens material injury to an established

91 WT/DS192/AB/R, adopted 8 October 2001, para. 74 (“Yarn from Pakistan”)

industry . . .or materially retards the establishment of a domestic industry." Given the object and purpose
of Article VI and the AD Agreement, which authorizes a remedy for injurious dumping, the provisions of
these agreements must be interpreted so as to allo w investigating authorities to obtain and analyze all
information necessary to the antidumping analysis.
76. Article VI and the AD Agreement require that a determination of dumping must be based on
detailed information involving prices in the domestic market of the exporting country (“normal value”)
and export prices to the market of the investigating authority.92 The dumping determination must include,
where alleged, an analysis of cost information to de termine whether sales in the domestic market of the
exporting country are below the cost of production(“COP”). Only when all of this information is
accurately provided can the administering authority perform an accurate calculation of a dumping margin.
Based on these requirements, Commerce’s questionnaire requests of information necessary for the
dumping analysis, including general information c oncerning the company's corporate structure and
business practices; the merchandise under investigation that it sells; the sales of that merchandise in all
markets; the home market sales listings; the US sa les listings; and information regarding the cost of
production of the foreign like product and the constructed value of the merchandise under investigation.
This information, which is necessary for any dumping determination, is normally within the control of the
responding parties whose sales are the subject of the anti-dumping investigation.
77. Thus, in light of the object and purpose of Article VI and the AD Agreement, authorizing
Members to remedy injurious dumping, the provisions at issue must be interpreted to allow investigating
authorities to request, require and obtain the necessary information from interested parties. The
interpretation advanced by India would give ultimate control to responding parties over what information
investigating authorities may analyze.
78. The goal of an anti-dumping investigation is “ensuring objective decision-making based on
facts.”
93 In order for investigating authorities to make objective decisions based on facts, they must have
access to those facts. An interpretation of the AD Agr eement that would encourage parties to selectively
provide necessary information would frustrate the goal of objective decision-making and nullify the
effectiveness of the Article VI remedy. At some point, investigating authorities must have the discretion
to reject questionnaire responses in their entirety when responding parties fail to provide critical
information that authorities need to conduct antidumping investigations.
B. TEXTUAL ANALYSIS OF THE AD AGREEMENT
79. In this section of our submission, we analyze th e provisions of the AD Agreement relevant to this
dispute, that is, Article 6.8 and Annex II. As will be shown, the ordinary meaning of Article 6.8 and
Annex II of the AD Agreement support the interpretation of the United States as reflected in its statutory
provisions and its actions with respect to SAIL in the antidumping duty investigation at issue.
80. Article 6.8 of the AD Agreement permits the application of facts available when a party fails or
refuses to provide necessary information in an anti-dumping investigation. Annex II of the AD
Agreement then sets out the criteria which investigating authorities should take into account before
applying facts available. As we demonstrate belo w, taken together, Article 6.8 and Annex II allow
investigating authorities to make preliminary and final determinations, in whole or in part, on the basis of
facts available, which could lead to a result which is less favorable to the party than if the party had

92 See, e.g., Article VI:1 of GATT 1994; Article 2 of the AD Agreement.

cooperated and provided the necessary information. These provisions of the AD Agreement provide
investigating authorities with a feasible method for calculating antidumping margins when information in
control of responding parties is missing, untimely, or unreliable because a party either refuses access to it
or otherwise does not timely provide it.
1. Article 6.8 of the AD Agreement
81. Article 6.8 of the AD Agreement provides as follows:
In cases in which any interested party refuses access to, or otherwise does not provide,
necessary information within a reasonable period or significantly impedes the
investigation, preliminary and final determinations, affirmative or negative, may be made
on the basis of facts available. The provisions of Annex II shall be observed in the
application of this paragraph.
(a) Information
82. A fundamental issue in this dispute is the proper interpretation of the term “information" as used
in Article 6.8 and Annex II of the AD Agreement. The ordinary meaning of the term “information,”
which is not defined in the AD Agreement, is a “communication of the knowledge of some act or
occurrence” and “knowledge or facts communicated about a particular subject, event, etc.; intelligence,
news.”
94
83. Article 6.8 of the AD Agreement uses the term "necessary information." The ordinary meaning
of the term “necessary” is “[t]hat cannot be dispensed with or done without; requisite; essential;
needful.”95 The “necessary” or “requisite” or “essential” information for conducting an antidumping
investigation includes prices of the subject merchandise in the domestic market of the exporting country,
export prices of the subject merchandise, and, in appropriate circumstances, cost of production
information and constructed value information. Because dumping is defined in Article 2.1 of the AD
Agreement based on a comparison of the export price with the normal value, in the ordinary course of
trade, all of this information constitutes “necessary” information for purposes of making a dumping
determination.
96
84. Throughout its First Written Submission, India claims that Commerce was wrong to examine the
sufficiency of all of the information necessary for the conduct of its investigation. Instead, India argues
that Commerce was obligated to focus on certain “categories of information” -- a term which does not
appear anywhere in the AD Agreement. Nothing in the AD Agreement requires an administering
authority to evaluate distinct “categories” of information separately for purposes of determining whether
it is permissible to use facts available for a dumping determination.

94 The New Shorter Oxford English Dictionary, Clarendon Press, Oxford, 1993.
95 The New Shorter Oxford English Dictionary, Clarendon Press, Oxford, 1993.
96 Article 2.1 of the AD Agreement states:
For the purpose of this Agreement, a product is to be considered as being dumped, ie. introduced into the
commerce of another country at less than its normal value, if the export price of the product exported from one
country to another is less than the comparable price, in the ordinary course of trade, for the like product when
destined for consumption in the exporting country.

85. It is also relevant to consider the meaning of the term “information” in terms of the overall
purpose of the AD Agreement. As stated by the Hot Rolled panel:
One of the principal elements governing anti -dumping investigations that emerges from
the whole of the AD Agreement is the goal of ensuring objective decision-making based
on facts.97
To the extent that “objective decision-making based on facts” is accepted as a goal of the AD Agreement,
the Agreement should be interpreted in a manner that would achieve that goal. The only way to achieve
“objective decision-making based on facts” is to interpret the AD Agreement in a manner which
encourages the parties in possession of the facts (in this case the responding interested parties) to provide
that information to the investigating authorities in a timely and accurate manner. Conversely, an
interpretation which would encourage responding interested parties to provide only partial information
would be inconsistent with that goal and is not to be preferred.
86. The purpose of the objective standard for decision-making is to permit neutral determinations to
be made without bias toward either the party that could be subject to duties or the party being injured by
any dumping. When investigating authorities rely on facts available, it is not possible to determine
whether those facts are advantageous to the responding party because the information necessary to
determine or even estimate that party’s actual margin of dumping is not available. Thus, an interpretation
of the AD Agreement that would allow responding parties to selectively provide information and require
investigating authorities to use that information could encourage such selective responses and thereby
defeat the underlying purpose of “objective decision-making based on facts.”
87. India’s interpretation of the term “information” to mean “categories of information” cannot be
squared with the goal of “objective decision-making based on facts.” Under India’s interpretation,
responding interested parties would be able to sele ct what information they want to supply to the
investigating authorities. India’s interpretation would, in fact, encourage responding interested parties to
distinguish between helpful and harmful information a nd to provide only that select information which
will not have negative consequences for them.
88. Moreover, India’s interpretation would often lead to absurd results. For example, under India’s
interpretation of the AD Agreement, if a responding party submitted only its COP data, omitting home
market and export sales information, Commerce would be required to include that data in its calculations.
Such information would be impossible to use, however, because in the absence of actual home market
prices, it would be unknowable whether the actual home market sales were above cost and therefore
appropriate for determining normal value (pursuant to Article 2.2.1 of the AD Agreement), or below cost,
such that constructed value should be used to dete rmine normal value (pursuant to Article 2.2 of the AD
Agreement). Such an interpretation would be absurd and, as such, should be avoided.
89. Furthermore, India's interpretation adds language to the text that is not there. The Appellate Body
has noted that panels must look to the ordinary mean ing of the text of an Agreement in determining the
obligations set forth by that provision: “The fundamental rule of treaty interpretation requires a treaty
interpreter to read and interpret the words actual ly used by the agreement under examination, and not

words which the interpreter may feel should have been used.” 98 The Appellate Body has further noted,
“[A] treaty interpreter is not entitled to assume that such usage [of particular terms] was merely
inadvertent on the part of the Members who negotiated and wrote that Agreement.”99
90. It is an investigating authority's ability to apply facts available in cases where responses are
substantially incomplete which provides an incentive for responding parties to supply complete
information. While the goal of antidumping proceedings is “ensuring objective decision-making based on
facts,”100 allowing the parties submitting information to control that decision-making by controlling the
production of information would run counter to the object and purpose of the AD Agreement to
encourage participation in antidumping proceedings in order to permit the calculation of accurate
antidumping margins.
91. When a respondent provides grossly inadequate and unreliable information pertaining to the
overall dumping margin calculation, Article 6.8 permits the investigating authority to use the facts
available to determine the existence of dumping. Although certain portions of information may appear
acceptable in isolation, when the nature and extent of deficiencies on the whole are substantial, it calls
into question the reliability of the entire response. Article 6.8 provides that in such circumstances, the
authority may rely on facts available.
92. Thus, consistent with the proper interpretation of “necessary information” in Article 6.8, it would
be permissible for a fair and objective investigating au thority to conclude that a party's failure to provide
the necessary information for the calculation of accurate dumping margins would constitute the non-
provision of necessary information such that, ev en with some limited data, it was necessary and
appropriate to use facts available for the entire dumping determination.
(b) Preliminary and final determinations
93. Article 6.8 of the AD Agreement provides that, when certain conditions have been met,
“preliminary and final determinations, affirmative or negative, may be made on the basis of facts
available.” (emphasis added). In its First Written Submission to this Panel, India has ignored this
language of the AD Agreement which explicitly provides for the use of facts available as to the ultimate
determination of dumping.
94. Throughout the AD Agreement, the text distinguishes between “preliminary and final
determinations” and individual pieces of information which may need to be determined. For example,
Article 12 of the AD Agreement provides for “Pub lic Notice and Explanation of Determinations.”
Therein, Article 12.2 specifically addresses any “preliminary or final determination” and the required
contents of such determinations. Further, Article 12.2.1 of the AD Agreement provides for a public
notice of the imposition of provisional measures, including, in particular, “preliminary determinations on
dumping and injury,” distinguishing such preliminary determinations from the “matters of fact and law”
and from the “methodology used in the establishment and comparison of the export price and the normal
value” in subsection (iii) of Article 12.2.1.

98 EC - Measures Concerning Meat and Meat Products ( “EC-Hormones AB Report” ), WT/DS48/AB/R,
adopted 13 Feb. 1998, para. 181(“EC-Hormones AB Report”).
99 Id. at para. 164.

95. Similar to subsection (iii) of Article 12.2.1, various subparts of Article 2 refer to the particular
items which need to be determined in order to reach a preliminary or final determination:
Article 2.2 – “the margin of dumping shall be determined”
Article 2.2.1 – “if the authorities determine that such sales are made within an extended
period of time”
Article 2.2.2 – “the amounts {for administrative, selling and general costs and for
profits} may be determined”
Article 2.3 – under particular conditions, “ex port price may be constructed {...} on
such reasonable basis as the authorities may determine.”
96. The use of the term “preliminary and final determinations” in Article 6.8 should be given its
ordinary meaning within the context of the AD Agr eement. As used in the AD Agreement, the term
“preliminary and final determinations” refers to the ultimate finding of dumping. Where the drafters of
the AD Agreement wanted to refer to the particular items that may need to be determined in order to
reach a preliminary or final determination, specific reference was made.
97. Notably, India ignores this language in Article 6.8 in its efforts to have the Panel interpret that
Article as applying to “categories of information.” Nevertheless, this plain language of Article 6.8 plainly
permits the use of facts available as the basis for “preliminary and final determinations” when an
interested party has failed to provide necessary information.
2. Annex II of the AD Agreement
98. With respect to Annex II of the AD Agreement, paragraphs 1, 3, and 5 are relevant to this dispute.
We discuss each in turn.
(a) Paragraph 1
99. Paragraph 1 of Annex II to the AD Agreement provides:
As soon as possible after the initiation of the investigation, the investigating authorities
should specify in detail the information required from any interested party, and the
manner in which that information should be structured by the interested party in its
response. The authorities should also ensure that the party is aware that if information is
not supplied within a reasonable time, the authorities will be free to make determinations
on the basis of facts available, including those contained in the application for the
initiation of the investigation by the domestic industry.
100. Paragraph 1 of Annex II provides the basic guidance in the AD Agreement for obtaining the
participation of responding interested parties. The first sentence provides that the authorities, as soon as
possible, should contact the parties, advise them of the information required from them for the
investigation, and advise them of the manner in which to submit that information. The second sentence
then provides that the investigating authorities sh ould advise the responding interested parties of the
consequences of not providing the required in formation – that the investigating authorities will be free to
make determinations on the basis of the facts available, including, in particular, those facts contained in
the application for the initiation of the investigation.

(b) Paragraph 3
101. Annex II, paragraph 3 of the AD Agreement provides:
All information which is verifiable, which is appropriately submitted so that it can be
used in the investigation without undue difficulties and which is supplied in a timely
fashion, and, where applicable, supplied in a medium or computer language requested by
the authorities, should be taken into account when determinations are made. If a party
does not respond in the preferred medium or computer language but the authorities find
that the circumstances set out in paragraph 2 have been satisfied, this should not be
considered to significantly impede the investigation.
102. Annex II, paragraph 3 contains a number of conditions which, if met, indicate that the authorities
“should take that information into account.” Those conditions are:
(i) the information is verifiable;
(ii) the information is appropriately submitted so that it can be used . . . without undue
difficulties;
(iii) the information is supplied in a timely fashion; and
(iv) the information, where applicable, is supplied in a medium or computer language
requested by the authorities.
Only if all four of these conditions are met does the AD Agreement provide th at the information should
be taken into account. If the information fails to meet any one of these conditions, Annex II, paragraph 3
does not provide any obligation on the authorities to furt her consider, or otherwise take into account, the
information.
(i) The information “should be taken into account”
103. India claims that if the four conditions of Annex II, paragraph 3 are met, the investigating
authorities must use the information to calculate the antidumping margin. Once again, India is reading
language into the text.101 In actuality, that provision simply states that, if the four conditions are met, then
the information “should be taken into account.” “Must use” and “should be taken into account” are not
synonymous terms.
104. Annex II, paragraph 5 uses similar language, stating that even if information is not ideal in all
respects, this fact alone “should not justify the authorities from disregarding it, providing the interested
party has acted to the best of its ability.” (emphasis added).
105. The ordinary meaning of the term “should” differs greatly from the terms “must” or “shall.” The
former word implies a suggested course of action, while the latter terms impose a mandatory obligation
on Members.
106. As the panel recognized in United States - Anti-dumping Measures on Stainless Steel Plate in
Coils and Stainless Steel Sheet and Strip From Korea, 102 the ordinary meaning of “should” does not
impose mandatory obligations upon Member states. Therein, the Panel rejected the argument that the

102 WT/DS179/R, adopted 1 February 2001, para. 6.93 (“SSPC from Korea”).

term “should” was the equivalent of the word “may,” but agreed that in its ordinary meaning, it was a
permissive rather than mandatory term.103
107. Thus, the language of Annex II, paragraphs 3 and 5, urges the investigating authority to take into
account, or not disregard, information on the record which meets the criteria of those provisions;
however, the ordinary meaning of both of these provisions does not require Members to utilize that
information.
(c) Paragraph 5
108. Paragraph 5 of Annex II of the AD Agreement states that
Even though the information provided may not be ideal in all respects, this should not
justify the authorities from disregarding it provided the interested party has acted to the
best of its ability.
109. Paragraph 5 incorporates the principle that perfection is not the standard, that information with
correctable errors should not be disregarded where the respondent has acted to the best of its ability.
110. The phrase “may not be ideal in all respects” is particularly relevant to this dispute. It implies
that the information in question is either “ideal” in most respects or nearly ideal across the board.
Nevertheless, paragraph 5 indicates that there will be situations in which the investigating authority would
be justified in disregarding the information.
111. Again, the use of the term “should” in this paragraph, as indicated above, indicates that this is not
a mandatory obligation in the AD Agreement.
112. The phrase “provided the interested party has acted to the best of its ability” is also particularly
relevant. Where the interested party has acted to the best of its ability, the fact that they were unable to
provide information which was ideal in all respects sh ould not justify disregarding that information. On
the other hand, where the conditions for making a determination based on the facts available otherwise
apply, the clear implication of paragraph 5 is that an investigating authority would be justified in
disregarding information that is not ideal in all respects if a party has failed to act to the best of its ability.
Similarly, if the information is far from ideal in most respects, paragraph 5 would have no bearing, even if
the interested party has acted to the best of its ability.
(d) Conclusion
113. In short, the AD Agreement provides that when a party refuses or otherwise does not supply
necessary information (including the provision of incomplete, untimely or unreliable information), or
significantly impedes the investigation, the investigating authority is free to use the facts available to
make its determination. However, in such a case, where information was provided which is verifiable,
appropriately submitted so that it can be used without undue difficulty, supplied in a timely fashion, and
supplied in the requested medium, it should be taken into account, although it need not be used to

103 SSPC from Korea at para. 6.93 (footnote omitted). The Panel stated that the term “should” was not the
equivalent of “may,” because there would be no effective disciplines on the methodology selected. Thus, the Panel
found that the term “should” provided an authorization for a specified, but non-mandatory, act. See id. at para. 6.94
and accompanying notes.

calculate the margin. Additionally, even though in formation may not be ideal in all respects, the
authorities should not disregard it if the interested party acted to the best of its ability. Conversely, if a
party has failed to act to the best of its ability, then an investigating authority would be justified in
disregarding information that is not ideal in all respects.
114. As we will demonstrate below, both the stat ute implementing the United States’ WTO obligations
and the final determination of the Department of Commerce with respect to SAIL are consistent with this
interpretation of the AD Agreement.
C. THE “FACTS AVAILABLE” PROVISIONS OF THE US STATUTE DO NOT VIOLATE US
WTO OBLIGATIONS
115. India seeks to have this Panel find that sections 776(a), 782(d), and 782(e) of the Act “as such”
violate Article 6.8 and Annex II, paragraph 3 of the AD Agreement.104 Its entire argument is premised on
a misinterpretation of both the obligations provided for in Article 6.8 and Annex II and those in US law.
As we explain below, where the AD Agreement creates obligations pertaining to the use of the facts
available, the US statute is consistent with those obligations. Where the AD Agreement leaves discretion
with Members, the statute provides particular criteria that limit the Department’s discretion to use the
facts available in place of a respondent’s submitted data. Since the US statute does not mandate WTO
inconsistent action, there is no basis for the Panel to conclude that the statute violates the AD Agreement.
1. Under Established WTO Jurisprudence, the Legislation of a Member Violates That
Member’s WTO Obligations Only If the Legislation Mandates Action That Is Inconsistent
With Those Obligations
116. It is well established under GATT and WTO juri sprudence that legislation of a Member violates
that Member’s WTO obligations only if the legislation mandates action that is inconsistent with those
obligations or precludes action that is consistent with those obligations. If the legislation provides
discretion to administrative authorities to act in a WTO-consistent manner, the legislation, as such, does
not violate a Member’s WTO obligations.
117. The Appellate Body has explained that “the concept of mandatory as distinguished from
discretionary legislation was developed by a number of GATT panels as a threshold consideration in
determining when legislation as such – rather than a specific application of that legislation – was
inconsistent with a Contracting Party’s GATT 1947 obligations.”
105 This doctrine has continued under
the WTO system, as panels and the Appellate Body have continued to apply the mandatory/discretionary
distinction in considering whether a Member’s legislation is WTO - consistent.
118. Most recently, the panel in the Export Restraints case applied the doctrine in concluding that
certain provisions of the US countervailing duty law did not mandate action inconsistent with provisions

104 Although India cites to three provisions in th e heading to section VI.B. of their First Written
Submission, the text of that section challenges only the consistency of sections 776(a) and 782(c) with the AD
Agreement. See India’s First Written Submission at paras. 130-59. Nevertheless, we discuss all three provisions for
purposes of completeness.
105 United States - Anti-Dumping Act of 1916 , WT/DS136/AB/R, WT/DS162/AB/R, Report of the
Appellate Body adopted 26 September 2000, para. 88 (“US 1916 Act AB Report”).

of the Agreement on Subsidies and Countervailing Measures.106 The Panel in Export Restraints described
the mandatory/discretionary distinction as a “classical test” with longstanding historical support.107
2. Sections 776(a), 782(d), and 782(e) of the Act Do Not Mandate WTO Inconsistent Actions
(a) The Meaning of the Facts Available Provisions Is a Factual Question That Must Be Answered by
Applying US Principles of Statutory Interpretation
119. A central question in this dispute is the following: Do sections 776(a), 782(d), and 782(e) of the
Act mandate that Commerce reject submitted information in a manner inconsistent with Article 6.8 and
Annex II of the AD Agreement? If they do not, then India’s challenge to the US statute “as such” must
fail.
120. It is an accepted principle that questions concerning the meaning of municipal law are questions
of fact that must be proven. 108 Likewise, it is equally well-established that municipal law consists not
only of the provisions being examined, but also domestic legal principles that govern the interpretation of
those provisions.109 While the Panel is not bound to accept the interpretation presented by the United
States, the United States can reasonably expect that the Panel will give considerable deference to the
United States’ views on the meaning of its own law.110
121. For purposes of ascertaining the meaning of sections 776(a), 782(d), and 782(e) of the Act as a
matter of US law, US courts and agencies must recognize the longstanding and elementary principle of
US statutory construction that “an act of Congress ought never to be construed to violate the law of
nations if any other possible construction remains.” Murray v. Schooner Charming Betsy , 6 US (2
Cranch) 64, 118 (1804). While international obligations cannot override inconsistent requirements of
domestic law, “ambiguous statutory provisions . . . [should] be construed, where possible, to be consistent
with international obligations of the United States.”
111
(b) Section 776(a) of the Act Does Not Mandate WTO- Inconsistent Action
122. A comparison of section 776(a) of the Act and Article 6.8 of the AD Agreement reveals that the
two provisions are largely identical, and that section 776(a) does not mandate any action that is
inconsistent with Article 6.8. Article 6.8 states that:
In cases in which any interested party refuses access to, or otherwise does not provide,
necessary information within a reasonable period or significantly impedes the
investigation, preliminary and final determinations, affirmative or negative, may be made

106 United States – Measures Treating Export Restraints as Subsidies , WT/DS194/R, adopted 23 August
2001, paras. 8.4 – 8.131.
107 Id. at para. 8.9.
108 See, e.g. , India - Patent Protection for Pharmaceutical and Agricultural Chemical Products ,
WT/DS50/AB/R, adopted 16 January 1998, paras. 64, 73-74, and cases and authorities cited therein.
109 See, e.g., United States - Section 301-310 of the Trade Act of 1974, WT/DS152/R, adopted 27 January
2000, para. 7.108 & n. 681 (“US 301").
110 US 301, para. 7.19.
111 Restatement (Third) of the Foreign Relations Law of the United States , § 114 (1987) (copy attached as
US-13); and US 301, note 681, in which the panel recognized the existence of what is known in the United States as
“the Charming Betsy doctrine”.

on the basis of the facts available. The provisions of Annex II shall be observed in the
application of this paragraph.
Section 776(a) in turn reads as follows:
If–
(1) necessary information is not available on the record, or
(2) an interested party or any other person–
(A) withholds information that has been requested by the administering
authority or the Commission under this title,
(B) fails to provide such information by the deadlines for the submission of
the information or in the form and manner requested subject to subsections (c)(1)
and (e) of section 782,
(C) significantly impedes a proceeding under this title, or
(D) provides such information but the information cannot be verified as provided
in section 782(i),
the administering authority and the Commission shall, subject to section 782(d), use the
facts otherwise available in reaching the applicable determination under this title.
112
123. As a side by side comparison of the two provisions demonstrates, the section 776(a)(2)(A)
requirement to use the facts available if an interested party “withholds” information does not mandate
WTO inconsistent action because Article 6.8 explicitly permits Members to use the facts available when
an interested party “refuses access to” information.
124. Similarly, the fact that section 776(a)(2)(B) requires use of facts available if an interested party
“fails to provide information” by the relevant deadline does not mandate WTO inconsistent action
because Article 6.8 permits a Member to use the facts available if an interested party “does not provide”
information within a reasonable period.
125. Moreover, the requirement in section 776(a)(2)(C) to use facts available if a party significantly
impedes an authority’s investigation does not mandate WTO inconsistent action because it is plainly
permissible under Article 6.8 for a Member to resort to facts available in such situations.
126. Additionally, the requirement in section 776(a)(2)(D) to disregard information that cannot be
verified and use the facts available does not mandate WTO inconsistent action because only “verifiable”
information should be taken into account under Article 6.8 and paragraph 3 of Annex II of the AD
Agreement.

112 Section 776(a) (emphasis added) (Exh. IND-26).

127. Finally, section 776(a) makes the use of facts available, when any one of these conditions have
been met, subject to section 782(d) of the Act. Thus, the reference here to section 782(d) does not
mandate WTO inconsistent action because it limits the otherwise WTO-consistent ability to use the facts
available.
128. In sum, section 776(a) of the Act only requires use of the facts available in circumstances that are
consistent with Article 6.8, therefore, it does not mandate rejection of information in a manner
inconsistent with Article 6.8 of the AD Agreement. This reading of section 776(a) is further confirmed
by the Statement of Administrative Action, interpreting section 776(a).113
(c) Section 782(d) of the Act Does Not Mandate WTO Inconsistent Action
129. India claims (at para. 137) that section 782(d) of the Act does not modify the basic requirements
in section 776(a) pertaining to the facts available. India’s point is irrelevant because, as already
discussed, section 776(a) does not mandate WTO inconsistent action. The same is true with respect to
section 782(d) of the Act. Section 782(d) provides:
(d) Deficient Submissions.--If the administering authority or the Commission
determines that a response to a request for information under this title does not comply
with the request, the administering author ity . . . shall promptly inform the person
submitting the response of the nature of the deficiency and shall, to the extent practicable,
provide that person with an opportunity to remedy or explain the deficiency in light of the
time limits established for the completion of investigations or reviews under this title. If
that person submits further information in response to such deficiency and either–
(1) the administering authority . . . finds that such response is not satisfactory, or
(2) such response is not submitte d within the applicable time limits,
then the administering authority . . . may, subject to subsection (e), disregard all or part of
the original and subsequent responses.
114
130. The use of the word “may” alone demonstrates that section 782(d) of the Act is discretionary and
does not mandate rejection of any information that would otherwise be acceptable pursuant to Article 6.8
and Annex II of the AD Agreement. As a discretionary provision, section 782(d) cannot violate US WTO

113 With respect to section 776(a) of the Act, the SAA provides that:
New section 776(a) requires Commerce and the Commission to make determinations on the basis of the
facts available where requested information is missing from the record or cannot be used because, for example, it
has not been provided, it was provided late, or Commerce could not verify the information. Section 776(a) makes it
possible for Commerce and the Commission to make their determinations within the applicable deadlines if relevant
information is missing from the record. In such cases, Commerce and the Commission must make their
determinations based on all evidence of record, weighing the record evidence to determine that which is most
probative of the issue under consideration. The agencies will be required, consistent with new section 782(e), to
consider information requested from interested parties tha t: (1) is on the record; (2) was filed within the applicable
deadlines; and (3) can be verified.
114 Section 782(d) (emphasis added) (Exh. IND-26).

obligations.115 This reading of section 782(d) is confirmed by the Statement of Administrative Action,
interpreting section 782(d) of the Act.116
(d) Section 782(e) of the Act Does Not Mandate WTO Inconsistent Action
131. Finally, nothing in section 782(e) of the Act mandates WTO inconsistent action. Under 782(e):
(e) Use of Certain Information.--In reaching a determination under section 703, 705,
733, 735, 751, or 753 the administering authority . . . shall not decline to consider
information that is submitted by an interested party and is necessary to the determination
but does not meet all the applicable requirements established by the administering
authority or the Commission if–
(1) the information is submitted by the deadline established for its submission,
(2) the information can be verified,
(3) the information is not so incomplete that it cannot serve as a reliable basis for
reaching the applicable determination,

115 Moreover, the text of section 782(d) is substantively identical to paragraph 6 of Annex II, which states:
If evidence or information is not accepted, the supplying party should be
informed forthwith of the reasons thereof and have an opportunity to provide
further explanations within a reasonable period, due account being taken of the
time-limits of the investigation. If the explanations are considered by the
authorities as not being satisfactory, the reasons for rejection of such evidence or
information should be given in any published findings.
Nothing in this language mandates the rejection of information that is otherwise consistent with Article 6.8
and Annex II.
116 With respect to section 782(d) of the Act, the SAA (Exh. US-23) provides (at 865) that:
New section 782(d) requires Commerce and the Commission to notify a party
submitting deficient information of the deficiency, and to give the submitter an
opportunity to remedy or explain the deficiency. This requirement is not
intended to override the time-limits for completing investigations or reviews,
nor to allow parties to submit continual clarifications or corrections of
information or to submit information that cannot be evaluated adequately within
the applicable deadlines. If subsequent submissions remain deficient or are not
submitted on a timely basis, Commerce and the Commission may decline to
consider all or part of the original and subsequent submissions. Pursuant to new
section 782(f), Commerce and the Commission will provide, to the extent
practicable, a written explanation of the reasons for not accepting information

Nothing in the interpretive language calls into question the obvious discretionary nature of section 782(d).

(4) the interested party has demonstrated that it acted to the best of its ability in
providing the information and meeting the requirements established by the administering
authority or the Commission with respect to the information, and
(5) the information can be used without undue difficulties. 117
132. The United States explained above that section 776(a) of the Act cannot mandate WTO
inconsistent action because it only requires use of the facts available in circumstances that Article 6.8
permits. Section 782(e) further ensures this result by requiring the Department to consider information
that would otherwise be rejected under section 776(a), if five conditions are met. In this way, section
782(e) serves to reduce the likelihood that the Department will resort to the facts available in a particular
case; it does not require the Department to use the facts available in a WTO inconsistent manner.
Moreover, as noted above, the discretionary provision of section 782(d) is made subject to section 782(e).
Thus, even if the five requirements of section 782(e) are not met, the decision to disregard the information
would remain discretionary pursuant to section 782(d ). Therefore, since nothing in section 782(e)
requires the Department to reject information submitted by an interested party, it cannot be viewed as
mandating action that would be inconsistent with Article 6.8 and Annex II.
133. In addition, the factors identified in section 782(e), with one exception, are substantively identical
to the factors contained in Annex II, paragraphs 3 and 5, of the AD Agreement. The first factor in section
782(e) refers to “information submitted by the deadline established for its submission;” paragraph 3 of
Annex II refers to “information . . . which is supplied in a timely fashion.”
134. The second factor in section 782(e) refers to information that can be “verified;” Annex II,
paragraph 3, refers to “information which is verifiable.”
135. The fourth factor in section 782(e) refers to cases in which a party “has demonstrated that it acted
to the best of its ability in providing the inform ation and meeting the requirements established by the
administering authority . . . with respect to the info rmation”; similarly, Annex II, paragraph 5 of the AD
Agreement refers to an interested party that “has acted to the best of its ability.”
136. The fifth factor of section 782(e) refers to information that “can be used without undue
difficulties;” similarly, Annex II, paragraph 3 identifies information “which is appropriately submitted so
that it can be used in the investigation without undue difficulties.”
137. Only the third factor of 782(e) – that information is “not so incomplete that it cannot serve as a
reliable basis for reaching the applicable determination” – has no identical analogue in the text of the AD
Agreement, although it is plainly consistent with the goal of “objective decision-making based on
facts.”
118
138. Moreover, the third factor of section 782(e) does not mandate WTO inconsistent action because
paragraphs 3 and 5 of Annex II are permissive (i.e., non-mandatory). Paragraph 3 is the primary analogue
to section 782(e) and it provides a list of factors which, if met, lead to a permissive result (the information
“should be taken into account”). Similarly, paragraph 5 provides a condition which, if met, also leads to a
permissive result (the information “should not” be disregarded). With the inclusion of the third factor of

117 Section 782(e) (emphasis added) (Exh. IND-26).
118 Hot-Rolled Panel Report , para. 7.55; see also Article 6.6 (investigating authorities must satisfy
themselves as to accuracy of submitted information.)

section 782(e), the United States has simply clarified how it will exercise the discretion addressed in
paragraphs 3 and 5. Specifically, the United States has clarified that if the conditions of paragraphs 3 and
5 have been met, along with one additional condi tion which is axiomatic in the AD Agreement, the
United States will forego its discretion and it “shall not decline” to consider the information. On the other
hand, if the conditions of section 782(e) have not been met then the consideration of the information will
be determined pursuant to section 776(a), subject to the discretion of section 782(d), both of which, as
discussed above, are WTO consistent.
139. In sum, in light of the plain language of section 782(e), which specifically limits Commerce’s
discretion to reject information submitted by an interested party and closely tracks the text of Annex II,
there is no basis for the Panel to conclude that section 782(e) of the Act mandates rejection of information
that would otherwise be acceptable pursuant to Article 6.8 and Annex II of the AD Agreement.
119
(e) The Regulations Implementing Sections 776(a), 782(d), and 782(e) of the Act Confirm That These
Provisions Do Not Mandate Rejection of Information In a Manner Inconsistent With Article 6.8
and Annex II of the AD Agreement
140. Finally, the text of the pertinent provision of Commerce' s regulations, 19 C.F.R. § 351.308,
makes plain that application of facts available is a discretionary exercise, not a mandatory one. The
relevant sections of the regulation provide as follows:
(a) Introduction. The Secretary may make determinations on the basis of the facts
available whenever necessary information is not available on the record, an interested
party or any other person withholds or fails to provide information requested in a timely
manner and in the form required or significantly impedes a proceeding, or the Secretary
is unable to verify submitted information. . . .
(b) In general. The Secretary may make a determination under the Act and this Part
based on the facts otherwise available in accordance with section 776(a) of the Act.

119 With respect to Section 782(e) of the Act, the SAA provides (at 865):
New section 782(e) directs Commerce and the Commission to consider deficient submissions if
the following conditions are met: (1) the information is submitted within the established deadline;
(2) the information is verifiable to the extent that verification is required; (3) the information is
sufficiently complete to serve as a reliable basis for reaching a determination; (4) the party has
acted to the best of its ability in supplying the information and meeting the requirements
established by the agencies; and (5) the agencies can use the information without undue
difficulties. Commerce and the Commission may take into account the circumstances of the party,
including (but not limited to) the party's size, its accounting systems, and computer capabilities, as
well as the prior success of the same firm, or other similar firms, in providing requested
information in antidumping and countervailing duty proceedings. "Computer capabilities" relates
to the ability to provide requested information in an automated format without incurring an
unreasonable extra burden or expense.
Thus, the SAA confirms that section 782(e) of the Act does not mandate rejection of WTO-consistent information,
but rather provides restraints on Commerce’s abilit y to disregard insufficient submissions under certain
circumstances.

(e) Use of certain information. In reaching a determination under the Act and this
Part, the Secretary will not decline to consider information that is submitted by an
interested party and is necessary to the determination but does not meet all the applicable
requirements established by the Secretary if the conditions listed under section 782(e) of
the Act are met.
120
The use of the discretionary "may" throughout the regulations implementing section 776(a), 782(d), and
782(e) of the Act supports the conclusion that the statutory provisions are not mandatory in nature and
cannot violate US WTO obligations.
(f) India’s Argument is Based on a Misinterpretation of Sections 776(a), 782(d), and 782(e) of the
Act
141. In arguing that the US statutory provisions relating to the use of facts available violate the AD
Agreement “as such,” India misinterprets both Article 6.8 and Annex II and sections 776(a), 782(d), and
782(e) of the Act. The United States has alread y explained how India misinterprets Article 6.8 and
Annex II ( e.g., by interpreting the term “information” to mean “categories of information” and “should
take into account” as “must use”). Accordingly, this section of our submission will focus on India’s
misinterpretation of US law.
142. India claims that the interaction between sect ions 776(a) and 782(e) mandate WTO inconsistent
action by “establishing two additional conditions” that allegedly “expand the extent to which USDOC can
and must use ‘facts available’ instead of information actually submitted.”
121 India’s interpretation is
flawed on several grounds. First, section 776(a) only requires the use of facts available where it is
permissible to do so under Article 6.8. We explained this point in detail above.
143. Second, the conditions in section 782(e) do not expand the extent to which the Department must,
or even may, use the facts available. India’s entire argument on this point (at paras. 146 - 152) is based
on a false premise. Contrary to India’s assertion, section 782(e) contracts the Department’s ability to use
the facts available by requiring it to consider information that meets the five statutory criteria (“shall not
decline to consider”).122 By requiring the Department to consider submitted information, section 782(e)
makes mandatory the permissive obligation to consider information as found in paragraph 3 of Annex II
(information “should be taken into account”). Thus, to the extent that section 782(e) is “mandatory” at
all, it is mandatory in a way that exceeds WTO obligations.
144. Third, India claims that the third condition of section 782(e) – that the information not be “so
incomplete that it cannot serve as a reliable basis for reaching the applicable determination” – does not
appear in paragraph 3 of Annex II and has not been imposed by earlier panel and Appellate Body reports.
Neither point indicates that section 782(e) mandates WTO inconsistent action. The absence of the third
condition from paragraph 3 of Annex II simply reflects that the provision accomplishes a different
purpose than section 782(e): paragraph 3 of Annex II only establishes what an authority “should” do,
while section 782(e) establishes what the Department “shall” do. The absence of any panel or Appellate

120 19 C.F.R. § 351.308 (2000), Exh. US-22.
121 India's First Written Submission, para. 147.
122 India misrepresents section 782(e) when it claims that the provision merely “permits” the Department to
take information into account. See India’s First Written Submission at para. 142.

Body decisions on this point is easily explained by the fact that previous “facts available” cases have
involved only minor gaps in a respondent’s submitted information. This is the first time a panel has been
faced with a situation where a respondent has failed to provide the overwhelming majority of information
needed to calculate an antidumping margin.
145. Finally, India admits that “the text of Sections 776(a) and 782(e) could be interpreted as applying
to individual categories of information.”123 We have discussed at length why India is wrong to interpret
“information” to mean “categories of information,” and we have explained why adopting such an
interpretation would undermine the goal of “objective decision-making based on facts.” Nonetheless, if it
is possible to interpret the statute in such a manner, then there is no basis to conclude that the statute
mandates WTO inconsistent action.
3. The Panel Should Reject India’s Attempt to Challenge the Department’s Application of
Section 776(a), 782(d), and 782(e) Based on USDOC “Practice”
146. Finally, in addition to challenging sections 776(a), 782(d) and 782(e) of the Act “as such,” India
also seeks to challenge the provisions based on USDOC “practice.” 124 This attempted challenge to US
“practice” consists of nothing more than individual applications of the US “facts available” provisions.
As the panel noted in Export Restraints, administrative agencies are free under US law to depart from past
“practice” if a reasoned explanation is given for doing so, 125 and US “practice” therefore does not have
“independent operational status” that can independently give rise to a WTO violation. 126 Given India’s
admission that “the text of Sections 776(a) and 782(e) could be interpreted as applying to individual
categories of information,”
127 there is no basis for its argument that sections 776(a), 782(d) and 782(e) “as
interpreted” violate Article 6.8 and Annex II, paragraph 3.
147. Furthermore, even if “practice” could be considered as a measure, India’s claims regarding US
facts available “practice” still would not be properly before this Panel. As the United States noted before
the DSB in response to India’s first and second requests for a panel, India did not identify US facts
available “practice” in its consultation request and the United States and India did not consult with respect
to US “practice.”
128 Accordingly, India’s claim fails to conform to Articles 4.7 and 6.2 of the DSU and
must be rejected for that reason alone.
D. THE DEPARTMENT’S FACTS AVAILABLE DETERMINATION WITH REGARD TO SAIL
WAS CONSISTENT WITH ARTICLE 6.8 AND ANNEX II OF THE AD AGREEMENT
148. In its first submission to the Panel, India has selectively portrayed the factual record relevant to
Commerce's use of facts available. As demonstrated below, the full record evidence shows that
Commerce’s reliance on facts available for SAIL was consistent with Article 6.8 and Annex II of the AD
Agreement.

123 India’s First Written Submission at para. 140.
124 India’s First Written Submission at paras. 153-159.
125 United States – Measures Treating Export Restraints as Subsidies , WT/DS194/R, 29 June 2001, para.
8.126.
126 See id.
127 India’s First Written Submission at para. 140.
128 See WT/DSB/M/106, 17 July 2001, para. 50; WT/DSB/M/107, 11 September 2001, para. 126.

1. Commerce gave SAIL notice of the information required at the outset of the investigation,
consistent with Article 6.1 of the AD Agreement
149. In order to collect the information necessary for an anti-dumping investigation, Commerce issued
its standard antidumping questionnaire to SAIL. 129 In this questionnaire, Commerce requested general
information concerning SAIL’s corporate structure, business practices, and the merchandise under
investigation (cut-to-length steel plate) that it sells. Commerce also requested listings of its sales in India
and in the United States. Because the petition contained reasonable grounds to believe or suspect that
SAIL had sold steel plate below its cost of production in the home market, it was necessary for
Commerce to request information regarding the cost of production of the foreign like product and the
constructed value of the merchandise under investigation. Consistent with Article 6.1.1 of the AD
Agreement, Commerce gave SAIL more than 30 days for reply to the questionnaire.
2. Commerce identified deficiencies in SAIL’s response and gave multiple opportunities to
cure, consistent with Article 6.1 of the AD Agreement
150. Throughout the course of the investigation, Commerce identified deficiencies in SAIL’s
questionnaire responses and gave SAIL multiple opportunities to cure the deficiencies. For example, after
careful review of SAIL’s initial questionnaire res ponses, Commerce promptly notified SAIL that “there
are two deficiencies which are major and need to be emphasized here.” 130 First, Commerce noted that
SAIL’s failure to provide necessary information meant that its responses could not be used to calculate an
antidumping margin:
The first deficiency is that the response is substantially incomplete to the point where we
may not be able to use the information contained therein to calculate a margin.
Repeatedly throughout the questionnaire response you make the statement that certain
data are unavailable and will be submitted later. For example, you only reported a subset
of all your home market sales, and we cannot determine which sales have been reported.
Because of your repeated failure to provide the information requested by the
questionnaire, and incompleteness of your responses to other questions, we are unable to
adequately analyze your company’s selling practices.
As a result, Commerce explained that its First Deficiency Questionnaire was necessarily limited by
SAIL’s incomplete submissions and that further que stions would be required once SAIL’s questionnaire
response became more complete.
131
151. In addition to the general overall incompleteness of SAIL’s responses, Commerce noted a second
major deficiency: that SAIL’s section D response, in which its was required to provide Cost of production
data, was overwhelmingly incomplete.
132 Commerce stated that SAIL failed to provide any explanation
of its response methodology and did not provide product-specific cost information.133 In addition to these

129 USDOC Initial Antidumping Questionnaire to SAIL , Sections A, B, C and D, dated 17 March 1999
(Exh. US-1)(excerpts).
130 USDOC First Deficiency Questionnaire to SAIL, dated 27 May 1999 (Exh. US-8).
131 Id.
132 Id.
133 Id. This information was requested in Section D of the initial questionnaire.

major discrepancies, Commerce notified SAIL of numerous deficiencies and areas requiring clarification
in sections A-D of its questionnaire response.134
152. The information SAIL provided in response to these questions continued to be deficient.
Commerce’s 11 June 1999, Second Deficiency Questionnaire identified omissions in the information
necessary for its investigation. 135 Commerce requested that SAIL provide more specific information on
variables reported in its home market, US sales and cost databases. Commerce’s request also identified
inconsistencies between SAIL’s narrative explana tion and its reported databases, inaccurate product
control numbers necessary for product matching, and other necessary information.136
153. On 18 June 1999, Commerce issued a Third Deficiency Questionnaire which focused on SAIL’s
failure to provide product-specific costs. 137 Subsequent to the Third Deficiency Questionnaire ,
Commerce orally advised SAIL’s counsel of additional deficiencies, and memorialized these requests in
writing.138
154. In response to SAIL’s cost data submission that was filed just prior to the preliminary
determination, Commerce issued a Fourth Deficiency Questionnaire on 2 August 1999, that identified
continued deficiencies in those costs.139 In its 3 August 1999, Fifth Deficiency Questionnaire, Commerce
advised SAIL that there continued to be deficiencies in the section A, B, and C responses.140 In fact, there
was necessary information that was asked in the original questionnaire that SAIL had yet to provide. See,
e.g., Question 4: “As requested by the original questionnaire issued on 17 March 1999, please respond to
Question 1-h of Section A.”141
155. In all, Commerce issued at least five major supplemental requests for information, on 27 May,
11 June, 18 June, 2 August, and 3 August 1999; in addition, there were oral requests (memorialized in
writing) made during Commerce’s attempts to assi st SAIL. Nevertheless, by late August 1999, as
Commerce was preparing for on-site verification of SAIL’s information, SAIL had still not provided
significant information necessary for the Department’s antidumping analysis. For example, SAIL had not
provided product-specific cost information, despite having been asked for such information five months
previously in the initial questionnaire.
142 To a large extent, Commerce’s efforts to identify deficiencies
and give SAIL an opportunity to fix them were to no avail.
3. Commerce made significant efforts to provid e SAIL with sufficient time to provide
necessary information
156. Acting in good faith, Commerce made significant ef forts to provide SAIL with sufficient time to
provide the necessary information. Commerce gran ted SAIL’s requests for information on the initial
questionnaire response.143 In addition, SAIL requested – and was granted – multiple extensions for its

134 Id.
135 USDOC Second Deficiency Questionnaire to SAIL, dated 11 June 1999 (Exh. US-9).
136 Id. at Attach. II.
137 USDOC Third Deficiency Questionnaire to SAIL, dated 18 June 1999 (Exh. US-12).
138 USDOC Memorandum to File: Conversations with SAIL’s Counsel, dated 7 July 1999 (Exh. US-11).
139 USDOC Fourth Deficiency Questionnaire to SAIL, dated 2 August 1999 at Attachment I (Exh. US-17).
140 USDOC Fifth Deficiency Questionnaire to SAIL, dated 3 August 1999 (Exh. US-18).
141 Id.
142 USDOC First Deficiency Questionnaire to SAIL, dated 27 May 1999 (Exh. US-8).
143 See Memoranda Granting Extensions, dated 14, 16, and 30 April 1999 (Exh. US-5)

supplemental questionnaire responses, the effect of which was to grant significant additional time for
SAIL to respond to the initial request for necessary information.144
157. In addition to the extensions of time that SAIL actually requested, it also unilaterally granted
itself extensions. For example, on 29 June 1999, SAIL filed a response to Commerce’s First Deficiency
Questionnaire that had been due more than two weeks earlier. In rejecting the submission as untimely,
Commerce warned SAIL that
repeated throughout your submissions is the statement that certain data are unavailable
and will be supplied later. These statements are not substitutes for extension requests
under 352.302 of the Department’s regulations.145
158. During the investigations, SAIL never claimed that it could not provide the information. While it
advised Commerce that it was experiencing difficulties in gathering and submitting the requested
information, these difficulties were typically offered to justify additional time to submit information
(which the Department repeatedly granted) and were often accompanied by assurances that the
information would be forthcoming. For example, in its 11 May 1999, database submission, SAIL
represented that
some of the data requested by [Commerce] is still being collected (because, e.g. it is
available only in handwritten form). As soon as these data are available we will submit
them to the Department and revise the diskette accordingly.
159. SAIL never indicated that it would be unable to provide a usable database; on the contrary, it
promised that such a database would be forthcoming. Yet much of this information still had not been
provided by the time of the preliminary determination.146
160. Another example of Commerce’s significant effort s to assist SAIL was its decision to accept
major submissions of information after the preliminary determination. For example, Commerce issued its
Fourth Deficiency Questionnaire on 2 August 1999, two weeks after the preliminary determination.
147
This action arguably disadvantaged other interested parties who rely on the preliminary determination to
identify issues that will be raised in subsequent briefing.
4. Commerce was unable to satisfy itself as to the accuracy of SAIL’s information
161. At no point during the investigation process was Commerce fully able to satisfy itself that SAIL’s
information was accurate. A significant part of the problem was that SAIL’s databases remained
unusable throughout the proceeding; SAIL even attempted to provide a final workable computer tape
during the on-site verification – too late to be used, because Commerce officials would have had no
opportunity to analyze the tape prior to conducting verification.

144 See, e.g., Letter from USDOC to SAIL Re: Granting of Extension of Time , dated 16 August 1999 (Exh.
US-19).
145 Letter from USDOC to SAIL Re: Return of Untimely Information, dated 7 July 1999 (Exh. US-14).
146 DOC Memorandum Re: Preliminary Determination Facts Available for SAIL , dated 29 July 1999, at
Attach. I & II (Exh. US-16).
147 USDOC Fourth Deficiency Questionnaire to SAIL, dated 2 August 1999 (Exh. US-17).

162. More significantly, however, was that SAIL was unable to demonstrate the accuracy of its own
information. At the on-site sales verification, Commerce discovered, inter alia, that SAIL failed to report
a significant number of home market sales and failed to report accurate gross unit prices. 148 Commerce
was unable to verify the total quantity and value of home market sales. During the on-site cost
verification, SAIL was unable to reconcile costs of production to its audited financial statements. 149 I t
also became clear that SAIL had failed to provide constructed value information on the costs of products
produced and sold to the United States. 150 SAIL’s US sales database also contained errors; Commerce
found that “[w]hile these errors, in isolation, are susceptible to correction, when combined with other
pervasive flaws in SAIL’s data, these errors support our conclusion that SAIL’s data on the whole is
unreliable.”151
5. Commerce did not have necessary information to make its final dumping determination
163. At the time of the Final Determination, when Commerce should have had all the information
necessary to conduct a definitive anti-dumping analysis, SAIL’s information was filled with fatal gaps
and could not be verified. Its home market sales database remained seriously deficient, as SAIL had
failed to report all of its home market sales and gross unit prices. No workable cost of production or
constructed value database was ever provided. SAIL made relatively few export sales to the
United States, and yet even this data contained errors. At no point did SAIL indicate that the missing
information was not in its control or possession. In fact, SAIL had repeatedly indicated that it would be
able to provide the information and that it could be verified. In the end, however, SAIL was able to do
neither.
6. Commerce’s determination that SAIL had not acted to the best of its ability prior to
disregarding SAIL’s information was unbiased and objective
164. The facts of the record indicate that SAIL had the ability to provide the necessary information but
failed to do so. SAIL is one of the largest integrated steel producers in the world, and its records reflect
that it has an established accounting system that is audited annually.
152 All of SAIL’s representations
during the anti-dumping proceeding suggest that SAIL itself believed it could comply with the requests
for information. Given the facts on the record, an unbiased and objective investigating authority would be
justified in concluding that SAIL had failed to act to the best of its ability in providing the information
requested.
7. The affidavit of Albert Hayes constitutes ex tra-record evidence that was never presented to
the Department and thus is not properly within the scope of the Panel's review
165. In its first written submission, India seeks to support its arguments using extra-record evidence
that SAIL did not make available to Commerce during the antidumping investigation at issue. 153 Under
the standard of review which applies to a panel's review of an investigating authority's final dumping
determination, this extra-record evidence is not properly part of the factual record before the Panel. For

148 Sales Verification Report, dated 4 November 1999 (Exh. US-4) (public version) .
149 Cost Verification Report, dated 4 November 1999 (Exh. US-3) (public version).
150 Id.
151 USDOC Determination of Verification Failure Memorandum, dated 13 December 1999 (Exh. IND-16).
152 USDOC Redetermination on Remand (September 27, 2001) (Exh. IND-21).
153 India's First Written Submission, paras. 30 & n. 68, 110-111, and Exh. IND-24.

this reason, the affidavit of Albert Hayes is not properly part of the record of this proceeding. The Panel
should disregard both the affidavit and the arguments that India makes on the basis of the affidavit.154
(a) Under Article 17.5 of the AD Agreement, a pane l’s review of an investigating authority's final
dumping determination is limited to the facts presented to the investigating authority
166. Article 17.6 of the AD Agreement establishes a sp ecial standard of review that applies when
panels examine final dumping determinations for conf ormity with WTO rules. Under Article 17.6(i), the
role of a panel with respect to the facts in such matters is to determine "whether the authorities'
establishment of the facts was proper and whether their evaluation of those facts was unbiased and
objective." The "facts" of the matter referred to in Article 17.6(i) are "the facts made available in
conformity with the appropriate domestic procedures to the authorities of the importing Member" under
Article 17.5(ii).
155 The Appellate Body has noted the "clear connection" between these two provisions
and observed that "Articles 17.5 and 17.6(ii) require a panel to examine the facts made available to the
investigating authority of the importing Member."156
167. Given the plain language of these provisions, it would not be proper for a panel to review an
antidumping determination on the basis of evidence that was not made available to the investigating
authority during the underlying investigation. The United States - Anti-Dumping Measures on Certain
Hot-Rolled Steel Products from Japan (“Hot-Rolled Panel Report”) Panel discussed this point in detail:
It seems clear to us that, under this provision, a panel may not, when examining a claim
of violation of the AD Agreement in a particular determination, consider facts or
evidence presented to it by a party in an attempt to demonstrate error in the determination
concerning questions that were investigated and decided by the authorities, unless they
have been made available in conformity with the appropriate domestic procedures to the
authorities of the investigating country during the investigation. . . . [Article 17.5(ii)] is a
specific provision directing a panel’s decision as to what evidence it will consider in
examining a claim under the AD Agreement. Moreover, it effectuates the general
principle that panels reviewing the determin ations of investigating authorities in anti-
dumping cases are not to engage in de novo review.
157
As the panel noted, it is “not the panel’s role to collect new data or to consider evidence which could have
been presented to the decision maker but was not.”158

154 Specifically, paras. 107, 108, 110, and 111.
155 The administrative record is the information pr esented during the investigation, in accordance with
Article 17.5(ii) of the AD Agreement. The “appropriate domestic procedures” of the United States investigating
authorities – the Department and the United States International Trade Commission - are detailed in 19 U.S.C. §
1516a(b)(2)(A), which states that the record consists of all information “presented to or obtained by . . . the
administering authority . . . during the course of the administrative proceedings, . . .; and a copy of the
determination, all transcripts or reco rds of conferences or hearings, and all notices published in the Federal
Register.”
156 Thailand - H-Beams from Poland at paras. 117-18.
157 United States - Anti-Dumping Measures on Certain Hot-Rolled Steel Products From Japan ,
WT/DS184/R, adopted 23 August 2001, para. 7.6 (“Hot-Rolled Panel Report”).
158 Hot-Rolled Panel Report, para. 7.7, citing United States-Definitive Safeguard Measures on Importation
of Wheat Gluten from the European Communities , WT/DS166/R, adopted 19 January 2001, para. 8.6 (“ United
States - Wheat Gluten”).

(b) The Panel must disregard the affidavit of Albert M. Hayes
168. The Hayes affidavit is an especially good example of the reasons why the AD Agreement does
not permit panels to review determinations using ev idence that was never presented to the investigating
authority. Mr. Hayes is an employee of the law firm that is representing the government of India in this
matter. His affidavit was prepared especially for purposes of supporting India's arguments in this case,
more than two years after Commerce issued its final determination. His views, therefore, are neither
timely nor objective.
169. Furthermore, the law firm representing India in this case did not represent SAIL in Commerce's
antidumping investigation. As a result, Mr. Hayes was not involved in the investigation itself, and he has
no first-hand experience with the issues that arose during the investigation. He did not testify before
Commerce, and he did not otherwise provide his “professional opinion" during the antidumping
investigation. SAIL never submitted his methodologies to the Department, and the methodologies
themselves were not subject to scrutiny by the Department or other interested parties.
170. Although SAIL did assert in its administrative brief to the agency that Commerce could modify
its programming language to addresses SAIL’s failure to provide accurate information on the record, it
did not explain how that “correction” could be made. 159 The suggestions offered by Mr. Hayes now, as
well as his three proposed “alternative” margin calculations, were never on the record of the investigation
and Commerce did not have the opportunity to consider this information during the proceeding.160
171. Neither Mr. Hayes' affidavit nor the evidence contained therein was part of "the facts made
available in conformity with the appropriate domestic procedures to the authorities of the importing
Member" during the Department's antidumping investigation. As such, it would not be permissible under
Articles 17.5(ii) and 17.6(i) for the Panel to take them into account when it reviews the Department's
determination.
8. Conclusion
172. Based on the facts as presented to the agency, Commerce met all of its obligations under the AD
Agreement prior to relying on total facts available. Commerce notified SAIL of the required information
and granted it ample opportunity to present that information as provided in Article 6.1, a fact that India
does not dispute.
173. Commerce also informed SAIL of the reasons that its supplied information could not be accepted,
with at least five deficiency questionnaires, and additional oral requests for data that were memorialized
in writing. Pursuant to those questionnaires, SAIL was provided multiple opportunities to revise, correct,
and complete that information. Finally, SAIL was afforded a further opportunity to explain its position in
written briefs to Commerce and participated in a public hearing. All of these actions by Commerce are
consistent with Annex II, paragraph 6, a point not in dispute by India.
174. Commerce’s efforts to verify the accuracy of the information supplied by SAIL prior to basing its
findings on that information were consistent with Articles 6.6, 6.7 and Annex I of the AD Agreement.
India never disputed that Commerce’s verification procedures were proper.

159 Exh. IND-14 at 2.
160 SAIL did propose three “alternative” calculations in its administrative brief to the agency, but none of
those proposed calculations are the same calculations as those now described by Mr. Hayes.

175. Commerce’s decision to rely on facts available was consistent with Article 6.8 of the AD
Agreement. When all of the facts of record are examined here, as set forth above, it is clear that SAIL did
not provide necessary information within a reasonable period. The absence of this necessary information
substantially hindered Commerce's ability to conduct an antidumping duty investigation. Thus,
Commerce’s determination to apply facts available was consistent with Article 6.8 of the AD Agreement.
176. Commerce’s determination not to rely on SAIL’s information was consistent with paragraph 3 of
Annex II. Paragraph 3 of Annex II requires that information “should be taken into account” if it is
verifiable, can be used without undue difficulties, is supplied in a timely fashion, and, where applicable, is
supplied in a medium or computer language requested by the authorities. None of these conditions
applied here. First, as described above, SAIL’s information could not be verified.
161 Second, SAIL’s
information could not be used without undue difficulty. 162 Third, SAIL’s information was untimely. 163
Finally, despite indicating that it could submit workable electronic databases, SAIL was unable to do
so.
164 Therefore, there was no obligation on the part of Commerce to take SAIL’s information into
account.
177. Commerce’s determination not to rely on SAIL’s information was also consistent with paragraph
5 of Annex II. Paragraph 5 of Annex II states that even though information “may not be ideal in all
respects,” it should not be disregarded provided that the submitting party acted to the best of its ability.
SAIL’s information certainly was not ideal in any resp ect. Nevertheless, because it failed to act to the
best of its ability, there was no bar to Commerce’s decision to disregard the information.
178. In sum, the full record evidence shows that Commerce’s reliance on facts available for SAIL in
this investigation was consistent with Article 6.8 and Annex II of the AD Agreement.
E. THE DEPARTMENT’S FACTS AVAILABLE DETERMINATION WITH REGARD TO SAIL
DID NOT VIOLATE AD AGREEMENT ARTICLES 2.2, 2.4, 9.3, AND ARTICLE V:1 AND 2
OF GATT 1994
179. According to India, Commerce’s fa ilure to use SAIL’s US sales data resulted in the levying of an
antidumping margin that violated various provisions of the AD Agreement and GATT 1994 related to
making a fair comparison and imposing a duty not to exceed the margin of dumping.165 These allegations
are dependent upon India succeeding on its primary argument that Commerce acted inconsistently with its
WTO obligations when it based its determination on the facts available when SAIL had failed to provide
a substantial amount of the necessary information for that determination. Because India’s claims based

161 See USDOC Determination of Verification Failure Memorandum , dated 13 December 1999 (Exh. IND-
16).
162 Final Determination at 73130 (SAIL’s cost submission “was not only incomplete, but also riddled with
inaccuracies to the point where SAIL’s data remains unuseable”) (Exh. IND-17).
163 See, e.g., Cost Verification Report, dated 4 November 1999 (Untimely cost database not accepted) (Exh.
US-3) (public version).
164 Final Determination at 73130 (“Regarding computer tapes, repeated technical problems with the
submitted data resulted in our inability to load, run, and analyze the data, despite a significant amount of time and
attention from the Department”) (Exh. IND-17).
165 India’s First Written Submission at para. 174.

on Article 6.8 and Annex II of the AD Agreement ar e misplaced, India’s reliance on Articles 2.2, 2.4, 9.3
and Article VI:1 and 2 of GATT 1994 likewise must fail.166
F. INDIA HAS FAILED TO ESTABLISH THAT THE DEPARTMENT'S CONDUCT OF ITS
ANTIDUMPING INVESTIGATION VIOLATED ARTICLE 15 OF THE AD AGREEMENT
180. In addition to its broad challenge to the Departme nt’s use of the facts available, India claims (at
paragraphs 175-178) that the Department violated Article 15 of the AD Agreement by allegedly failing to
give "special regard" to India's status as a developing country Member when it applied the facts available
in calculating an antidumping margin for SAIL. India's argument misinterprets the requirements of
Article 15 and misstates the facts of the case as they pertain to this issue. Accordingly, there is no basis
for the Panel to find that India has established a prima facie case of violation of Article 15.
1. Textual Analysis of Article 15 of the AD Agreement
181. Article 15 of the AD Agreement is composed of two sentences. The first sentence states that:
It is recognized that special regard must be given by developed country Members to the
special situation of developing country Members when considering the application of
anti-dumping measures under this Agreement.
182. As India argued to the panel in the Bed-Linens case, the first sentence of Article 15 does not
impose any specific legal obligation on developed country Members.167 It does not create an obligation to
elect undertakings in lieu of antidumping duties, and it does not require developed country Members to
impose such duties at less than the full extent of dumping. It also does not create an obligation to use
different antidumping calculation methodologies based on whether the imports at issue originate in a
developed country Member or a developing country Member. By its plain terms, the first sentence of
Article 15 applies solely to the application of antidumping measures , not to the calculation of
antidumping margins. Since India focuses its argument on the second sentence of Article 15, we will not
discuss the first sentence further.
183. The second sentence of Article 15 states that:
Possibilities of constructive remedies provided for by this Agreement shall be explored
before applying anti-dumping duties when they would affect the essential interests of
developing country Members.
There are three aspects of the second sentence of Article 15 that govern the substantive obligation
contained therein. First, the obligation itself is limited to "exploring" the "possibility" of constructive

166 India’s claim that SAIL’s margin was overstated is particularly specious. It is not possible to know what
SAIL’s actual dumping margin was because SAIL failed to provide the information necessary to calculate SAIL’s
margin. Moreover, paragraph 7 of Annex II of the AD Agreement expressly provides that if an interested party does
not cooperate and thus relevant information is being withheld, this situation could lead to a result which is less
favorable to the party than if the party did cooperate.
167 See European Communities - Antidumping Duties on Imports of Cotton-type Bed Linens from India,
WT/DS141/R, adopted 30 October 2000, para. 6.220 (“ Bed-Linens”). The panel itself offered no views on the
matter, observing that “[t]he parties are in agreement that the first sentence of Article 15 imposes no legal
obligations on developed country Members.” Id. at n. 85.

remedies before applying antidumping duties. Nothing in the provision requires Members to accept such
remedies in lieu of applying antidumping duties.168
184. Second, the obligation in the second sentence of Article 15 pertains solely to a developed country
Member’s consideration of remedies other than the application of antidumping duties. There is no basis
in the text of the provision for an interpretation that would require a Member to consider alternative
methodologies for calculating antidumping margins. 169 A s t h e Bed-Linens panel concluded when it
rejected India’s argument that a Member must explore constructive remedies before imposing provisional
measures, the term “anti-dumping duties” in Article 15 “refers to the imposition of definitive anti-
dumping measures at the end of the investigative process.”170
185. Finally, the obligation to explore constructive remedies arises only when the application of
antidumping duties in a particular case "would affect the essential interests" of the developing country
Member at issue. This conclusion is inescapable in light of the explicit language of the provision. To
read the language otherwise – for example, by interpreting it to require Members to explore the possibility
of constructive remedies in all investigations involving developing country Members – would ignore the
strict limiting clause and thus violate the principle of interpretation known as the principle of treaty
effectiveness (whereby an interpreter is not to assume that terms in a text are purely redundant and have
no meaning).171 The inclusion of the limiting clause is a critical part of the negotiated balance of rights
and obligations underlying Article 15 that cannot be ignored.
186. Accordingly, when a developing country Member seeks the application of Article 15 in an
antidumping investigation, it must first demonstrate to the investigating authority that there are “essential
interests” implicated in the case that would be affected by the application of antidumping duties. 172 If it

168 See Bed-Linens, para. 6.233 (noting that “the concept of ‘explore’ clearly does not imply any particular
outcome. . . . Article 15 imposes no obligation to actua lly provide or accept any constructive remedy that may be
identified and/or offered.”); see also EC-Imposition of Anti-Dumping Duties on Imports of Cotton Yarn from Brazil ,
ADP/137, 4 July 1995 (hereinafter “ Cotton Yarn ”), in which a GATT panel interpreting the second sentence of
Article 13 of the GATT Antidumping Code (Article 15's historical predecessor), concluded that:
If the application of anti-dumping measures “would affect the essential interests
of developing countries,” the obligation that then arose was to explore the
“possibilities” of “constructive remedies.” It was clear from the words
“possibilities” and “explored” that the investigating authorities were not
required to adopt the constructive remedies merely because they were proposed.
Cotton Yarn, para. 584 (emphasis added). The panel also found that “there was no obligation to enter into
the constructive remedies, merely to consider the possibility of entering into constructive remedies.” Id., para. 589.
169 See Bed-Linens, para. 6.228 (noting that “Article 15 refers to ‘remedies’ in respect of injurious
dumping.”).
171 As the Appellate Body has noted, "one of the corollaries of the 'general rule of interpretation' in the
Vienna Convention is that interpretation must give meaning and effect to all terms of the treaty. An interpreter is not
free to adopt a reading that would result in reducing whole clauses or paragraphs of a treaty to redundancy or
inutility." United States - - Standards for Reformulated and Conventional Gasoline , WT/DS2/AB/R, adopted 20
May 1996, at 21.
172 The term “essential” implies a very high standard for the level of national interest which the developing
country Member must demonstrate would be affected by the application of antidumping duties. For example, since
the payment of antidumping duties will always have some negative effect on one or more producer/exporters in a

fails to do so, the obligation in the second sentence is not triggered, and the Member conducting the
investigation is under no obligation to explore alternatives to the imposition of antidumping duties.
2. There is No Basis to Conclude that the Department Violated Article 15 because India Never
Claimed that Applying Antidumping Duties to SAIL Would Affect Its Essential Interests
187. India claims (at paras. 175-178) that the Depart ment violated Article 15 by allegedly failing to
consider exploring the possibility of applying a price undertaking or other alternative remedy to SAIL in
lieu of applying antidumping duties. As the record of the Department's investigation demonstrates,
however, neither SAIL nor India ever suggested to the Department that applying antidumping duties to
SAIL would affect India's essential interests. For th at matter, neither party ever suggested that India had
essential interests that were implicated by the invest igation. SAIL’s letter to the Department raising the
possibility of entering into a suspension agreemen t also makes no reference to India’s (or its own)
essential interests.173 Accordingly, there is no legal basis for the Panel to conclude that the Department
has acted inconsistently with Article 15 by applying antidumping duties to SAIL.
3. Notwithstanding India’s Failure to Demonstrate that Applying Antidumping Duties to
SAIL Would Affect India’s Essential Interests, the Department Did Explore the Possibility
of Constructive Remedies
188. In spite of its failure to demonstrate that appl ying antidumping duties to SAIL would affect its
essential interests, India argues (at para. 176) that the Department violated the second sentence of Article
15 by failing to explore the possibility of a suspension agreement (undertaking) in lieu of applying
antidumping duties to SAIL. Even if the Department was obliged to make such an exploration in the
present case, the factual record of the investigation demonstrates that it did so.
189. As we explain in the Factual Background section of this submission, SAIL’s outside legal counsel
filed a letter with the Department on 30 July 1999 that raised the possibility of entering into a suspension
agreement. The Department then invited SAIL to meet with Department officials to discuss the matter.
On 31 August 1999, SAIL’s outside legal counsel met with the Assistant Secretary for Import
Administration – the ultimate decision maker in the case – and expressed their views. The Assistant
Secretary noted that Commerce would consider the request. He also noted that suspension agreements are
rare and require special circumstances – circumstances which he believed might not exist at the present
time in the case. Although India fails to note that the meeting took place, the Department memorialized
its contents in an 31 August 2001 ex parte memorandum to the file. A copy of that memorandum is
attached to this submission.
174
190. As the complainant on this matter, India has the burden of establishing a prima facie case of
violation of Article 15. It has failed to do so. Its claim (at para. 177) that the Department’s mind was
“closed” to the possibility of a suspension agreement is contradicted by record evidence demonstrating
that the Department met with SAIL to discuss its suspension agreement proposal and that the Department
stated it “would consider” the proposal. Its claim that the Department was unwilling to consider an

Member country, a situation which would affect the “essentia l” interests of the Member itself must mean something
significantly more than that.
173 Letter from SAIL’s Counsel to USDOC Re: Request for a Suspension Agreement , dated 29 July 1999
(Exh. IND-10).
174 USDOC Memorandum to the File re: Ex-Parte Meeting with Counsel for SAIL Regarding Possible
Suspension Agreement, dated 31 August 1999 (Exh. US-22).

agreement because of opposition from the domestic industry and the US Congress is not supported by the
administrative record, and SAIL did not suggest during the investigation that the ex parte memorandum
was in any way inaccurate or incomplete. Its claim that the Department “did not treat SAIL any
differently . . . when it issued final anti-dumping duties” is irrelevant because Article 15 “imposes no
obligation” on developed country Members to accept “constructive remedies” even if they are identified
or offered.
175 Finally, its suggestion that the Department was required to make a written response to
SAIL’s proposal finds no support in the text of Article 15.176
191. For all of these reasons, there is no factual or legal basis to find that the Department has acted
inconsistently with Article 15.
V. CONCLUSION
192. For the foregoing reasons, the United States respectfully submits that India’s claims are without
merit and the Panel should reject them.

175 Bed-Linens, para. 6.233.
176 India also suggests that the Department should have raised the possibility of applying a “lesser duty” to
SAIL. United States law has no “lesser duty rule,” and the AD Agreement does not require Members to offer such a
remedy if they decide against accepting a suspension agreement. See Article 9.1 of the AD Agreement (stating that
the amount of an antidumping duty is to be left to the authorities of importing Members).