WORLD TRADE
ORGANIZATIONWT/DS206/R
28 June 2002
(02-3483)
Original:  English
UNITED STATES-ANTI-DUMPING AND COUNTERVAILING
MEASURES ON STEEL PLATE FROM INDIA
Report of the Panel
The report of the Panel on United States-Anti-Dumping and Countervailing Measures on Steel Plate
from India is being circulated to all Members, pursuant to the DSU.  The report is being circulated as
an unrestricted document from 28 June 2002 pursuant to the Procedures for the Circulation and
Derestriction of WTO Documents (W T/L/160/Rev.1).  Members are reminded that in accordance with
the DSU only parties to the dispute may appeal a panel report.  An appeal shall be limited to issues of
law covered in the Panel report and legal interpretations developed by the Panel.  There shall be no
ex parte  communications with the Panel or Appellate Body concerning matters under consideration by
the Panel or Appellate Body.
Note by the Secretariat :  This Panel Report shall be adopted by the Dispute Settlement Body (DSB) within 60
days after the date of its circulation unless a party to the dispute decides to a ppeal or the DSB decides by
consensus not to adopt the report.  If the Panel Report is appealed to the Appellate Body, it shall not beconsidered for adoption by the DSB until after the completion of the appeal.  Information on the current status
of the Panel Report is available from the WTO Secretariat. WT/DS206/R
Page i
TABLE OF CONTENTS
Page
I. INTRODUCTION................................................................................................................. .......................1
II. FACTUAL ASPECTS ............................................................................................................. ....................1
III. PARTIES' REQUESTS FOR FI NDINGS AND RECO MMENDATIO NS .........................................3
A. I NDIA ............................................................................................................................... ...........................3
B. U NITED STATES ............................................................................................................................... ...........3
IV. ARGUMENTS OF THE PARTIES.................................................................................................... .....3
V. ARGUMENTS OF THE THIRD PARTIES .............................................................................................4
VI. INTERIM REVIEW .............................................................................................................. ...................4
VII. FINDINGS ................................................................................................................... ..............................7
A. G ENERAL ISSUES ............................................................................................................................... .........7
1. Standard of  review ........................................................................................................... .....................7
2. Burden of proof .............................................................................................................. .......................8
B. P RELIMINARY ISSUES ............................................................................................................................... ..9
C. A BANDONED CLAIM ............................................................................................................................... ..14
D. C LAIMS AND ARGUMENTS ........................................................................................................................15
1. Overview ..................................................................................................................... ........................15
2. Whether USDOC acted inconsistently with Article 6.8 and Annex II of the AD Agreement in resortingto use of facts available in th e AD investigation in question .................................................................. .....16
3. Whether Sections 776(a), 782(d) and 782(e) of the Tariff Act of 1930, as amended, are inconsistent
on their face with Article 6.8 and Annex II of the AD Agreement................................................................ 29
4. Whether the final measure is inconsistent with Articles 2.2, 2.4, and 9.3 of the AD Agreement andArticles VI:1 and VI :2 of GATT 1994 ............................................................................................ ..............35
5. Whether USDOC acted inconsistently w ith Article 15 of the AD Agreement .....................................36
VIII. CONCLUSIONS A ND RECOMMENDAT ION...................................................................................40WT/DS206/R
Page ii
LIST OF ANNEXES
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
ANNEX B
Third Parties' Submissions
Contents Page
Annex B-1 Third Party Submission of Japan B-2
Annex B-2 Third Party Submission of the European Communities B-5
ANNEX C
Second Submissions by the Parties
Contents Page
Annex C-1 Second Written Submission of India C-2
Annex C-2 Second Written Submission of the United States C-31
ANNEX D
Oral Statements, First and Second Meetings
Contents Page
Annex D-1 Oral Statement of the United States D-2
Annex D-2 Oral Statement of India D-7
Annex D-3 Third Party Oral Statement of the European Communities D-27
Annex D-4 Third Party Oral Statement of Chile D-29
Annex D-5 Oral Statement of the United States at the Second Meeting of the Panel D-32
Annex D-6 Oral Statement of India at the Second Meeting of the Panel D-38WT/DS206/R
Page iii
ANNEX E
Questions and Answers
Contents Page
Annex E-1 Answers of India to Questions of the Panel - First Meeting E-2
Annex E-2 Answers of the United States to Questions of the Panel - First Meeting E-27
Annex E-3 Answers of Chile to Questions of the Panel E-56
Annex E-4 Answers of the European Community to Questions of the Panel E-59
Annex E-5 Answers of Japan to Questions of the Panel E-61
Annex E-6 Comments of the United States on India's Replies to Questions of the 
PanelE-65
Annex E-7 Comments of India on the United States Replies to Questions of the 
PanelE-70
Annex E-8 Answers of the United States to Questions of the Panel - Second
MeetingE-86
Annex E-9 Answers of India to Questions of the Panel - Second Meeting E-93WT/DS206/R
Page 1
I. INTRODUCTION
1.1 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 General Agreement on Tariffs and Trade, 1994 (GATT 1994) and Article  17 of
the Agreement on Implementation of Article  VI of the GATT 1994 (AD Agreement) concerning,
inter alia , the United States anti-dumping investigation on cut to length carbon quality steel plate.1
The United States and India consulted on 21 November 2000, but failed to settle the dispute.
1.2 On 7 June 2001, India requested the Dispute Settlement Body (DSB) to establish a panel
pursuant to Article XXIII:2 of the GATT 1994, Article s 4 and 6 of the DSU and Article  17 of the
AD Agreement.2
1.3 At its meeting on 24 July 2001, the DSB established a panel in accordance with Article 6 of
the DSU to examine the matter referred to the DSB by India in document WT/DS206/2.  At that
meeting, the parties to the dispute also agreed that  the panel should have standard terms of reference.
The terms of reference are, therefore, the following:
"To examine, in the light of the relevant provisions of the covered Agreements cited
by India in documents WT/DS206/2, the matter referred by India to the DSB in that
document, and to make such findings as will assist the DSB in making the
recommendations or in giving the rulings provided for in those Agreements".
1.4 On 16 October 2001, India requested the Director-General to determine the composition of
the panel, pursuant to paragraph 7 of Article 8 of the DSU.  On 26 October 2001, the Director-General
composed the Panel as follows:3
Chairman: H.E. Mr. Tim Groser
Members: Ms. Salmiah Ramli
Ms. Luz Elena Reyes de la Torre
1.5 Chile, the European Communities and Japan reserved  their rights to participate in the panel
proceedings as third parties.
1.6 The Panel met with the parties on 23-24 January 2002 and on 26 February 2002.  It met with
the third parties on 24 January 2002.
1.7 The Panel submitted  its interim report to the parties on 3 May 2002.
II. FACTUAL ASPECTS
2.1 This dispute concerns the imposition by the United States of anti-dumping measures on
certain cut-to-length carbon steel plate (steel plate) from India.
2.2 Based on an application filed by the US Steel Group, Bethlehem Steel, Gulf States Steel,
Ipsco Steel, Tuscaloosa Steel and the United Steel Workers of America, the United States Department
of Commerce (USDOC) initiated an anti-dumping investigation of imports of certain cut-to-length
                                                     
1 WT/DS206/1.
2 WT/DS206/2.
3 WT/DS206/3.WT/DS206/R
Page 2
carbon steel plate from, inter alia , India, on 8 March 1999.  The sole Indian respondent was the Steel
Authority of India, Ltd. (SAIL).  The dumping portion of the investigation was conducted by USDOC
under the US anti-dumping statute and related USDOC regulations.4
2.3 On 29 July 1999, USDOC issued a preliminary determination of dumped sales.  USDOC
made its determination regarding SAIL on the basis of facts available, relying on the average of the
two margins estimated in the application, and assi gned SAIL a preliminary margin of 58.50 per cent.
2.4 On 29 July 1999, SAIL, by letter to USDOC, proposed a possible suspension agreement
covering cut-to-length plate from India.  On 31 August 1999, a meeting was held with counsel for
SAIL, USDOC's Assistant Secretary for Import Admi nistration, and other officials, to discuss the
proposal.  No suspension agreement was entered into.
2.5 On 29 December 1999, USDOC issued a final determination of dumped sales.  USDOC
found that SAIL had failed to cooperate to the best of its ability in responding to requests for
information, and that the errors and lack of information rendered all of the data submitted by SAILunreliable.  USDOC therefore rejected SAIL's data in its entirety, and relied entirely on facts available
("total facts available") to determine SAIL's dumping margin.  Having found that adverse inferences
were appropriate because of SAIL's failure to cooperate, USDOC assigned the highest margin alleged
in the application, 72.49 per cent,  to SAIL.
2.6 On 10 February 2000, the US International Trade Commission issued a determination of
material injury by reason of imports of the subject product from, inter alia , India, that had been found
by USDOC to be dumped.  On the same day, USDOC amended its final determination (in ways not
relevant to this dispute) and issued the anti-dumping order.
2.7 SAIL challenged USDOC's final determination in the United States Court of International
Trade (USCIT).  SAIL argued that USDOC's decision was based on an incorrect interpretation of theapplicable statute and regulations.  SAIL also argued that USDOC erred in rejecting SAIL's data in its
entirety and instead relying on total facts available,  and in relying on adverse inferences.  The USCIT
upheld USDOC's interpretation of the applicable US statute and regulations as a "reasonable
construction of the statute" and consistent with USDOC's "long standing practice of limiting the use
of partial facts available".  However, the case was remanded to USDOC for explanation of USDOC'sdecision that SAIL had failed to act to the best of its ability, which was the predicate for the decision
to rely on adverse inferences in choosing the av ailable facts on which SAIL's dumping margin was
calculated.
2.8 On 27 September 2001, after the request for establishment in this dispute, USDOC issued its
redetermination on remand, which is not at issue in this dispute.  USDOC explained its decision thatadverse inferences were appropriate in this case.  USDOC explained that the use of some of the
information supplied by SAIL, and partial facts available would allow a respondent to control the
outcome of an anti-dumping investigation by sele ctively responding to questionnaires.  The dumping
margin of 72.49 per cent remained unaltered.  The USCIT affirmed the redetermination on remand on
17 December 2001.
                                                     
4 The United States has a bifurcated system, under which different government agencies have
responsibility for the dumping calculation and injury portions of the process.  USDOC carries out the dumpingcalculations, and ultimately imposes any anti-dumping measures.  The injury portion of the investigation isconducted by the United States International Trade Commission.  Its investigation and the resulting
determination of material injury in the steel plate case are not the subject of this dispute.WT/DS206/R
Page 3
2.9 On 4 October 2000, India requested consultations with the United States pursuant to Article 4
of the DSU.  Consultations were held on 21 November 2000, but the parties were unable to resolve
the dispute.  Subsequently, India requested the establishment of a panel on 7 June 2001.
III. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS
A. INDIA
3.1 India requests that the Panel make the following findings:
(a) 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.
(b) 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 USCIT, are inconsistent with US obligations under Article 6.8 and Annex II,paragraph 3, 5 and 7 of the AD Agreement.
(c) 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 theAD Agreement, and Article  VI:2 of GATT 1994.
3.2 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 provisions referred to above into conformity with
the AD Agreement and Articles VI:1 and VI:2 of GATT 1994.
3.3 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, India requests
that the Panel 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 anti-
dumping order.
B. U
NITED STATES
3.4 The United States requests the Panel to find that India's claims are without merit and reject
them.
IV. ARGUMENTS OF THE PARTIES
4.1 The arguments of the parties are set out in their submissions to the Panel.  The parties'
submissions are attached to this Report as Annexes (see List of Annexes, page ii).WT/DS206/R
Page 4
V. ARGUMENTS OF THE THIRD PARTIES
5.1 The arguments of the third parties, Chile, the European Communities, and Japan are set out in
their submissions to the Panel and are attached to this Report as Annexes (see List of Annexes,
page ii).
VI. INTERIM REVIEW
6.1 Only India submitted comments on the interim report, on 17 May 2002.  As provided for in
the working procedures, the United States subsequently responded to India's comments, on 24 May
2002.  The bulk of India's comments concerned typog raphical or grammatical errors.  In response to
those comments, the Panel corrected typographical and other clerical errors throughout the Report,
and also corrected such errors it had itself identified, consistent with WTO editorial standards.
6.2 In addition to the above, India's comments repeated a request it had earlier made in comments
on the descriptive part of the report, which had been circulated to the parties on 22 March 2002.  Indiaasserts that, for the reasons set out in its comments on the descriptive part, the text of paragraph 3.1
describing the measures and claims at issue, "does not properly reflect either India's claims or the
measures addressed and clarified by India during th e course of the proceeding".  India proposes that
the Panel incorporate the changes India had proposed in its comments on the descriptive part of the
report.
6.3 The United States considers that the Panel was correct in rejecting India’s earlier request, and
that the Panel should reject this request as well.  In the United States' view, India’s suggested
modifications to paragraph 3.1 misstate the legal claims that India had set forth in its request for
establishment of this panel.  The United States comments that the Panel appears to have drawn
paragraph 3.1 verbatim from paragraph 179 of India’s first written submission, and thus the UnitedStates sees no reason for India to assert that the paragraph is inaccurate.
6.4 We considered this matter earlier in connection with India's comments on the descriptive part,
and concluded at that time to leave paragraph 3.1 as originally drafted.  As the United States correctly
points out, the text of paragraph 3.1 of the report is taken verbatim from India's first submission.
There does not seem to be any basis at this junctu re to change the text of the report.  Thus, we
consider that it accurately reflects the relief sought by India.  While India's arguments evolved over
the course of the proceeding, this does not affect the measures and/or the claims before the Panel as to
which relief was requested.  The revised text proposed by India in its comments on the descriptive
part is an entirely new formulation of its request for relief, which does not appear in any of India's
earlier submissions.  We see no reason to provide an opportunity to refine the request for relief of thecomplaining party at the end of the proceeding.  Changes to the request for relief at this late stage
might give rise to misunderstandings concerning the scope of the matter before the Panel, which was
defined by the terms of the request for establishment.  We therefore have decided to maintain
paragraph 3.1 as originally drafted.
6.5 India objects to the use of the terms "specifically object" and "specific objection" in
paragraphs 7.25 and 7.26 of the report to describe the United States' response to India's intention to
resurrect a claim it had explicitly abandoned in its first submission.  India states that in itsrecollection, the United States raised no objection, specific or otherwise, to India's raising the
abandoned claim, while the text as currently drafted implies that there was some "general" objection.
6.6 The United States believes the report need not be changed in this respect.WT/DS206/R
Page 5
6.7 The Chairman, at the beginning of the first mee ting of the Panel with the parties, invited the
United States to express any views it might have on this matter.  The representative of the United
States commented as follows:  "Mr. Chairman, we believe that the original decision on the part of
India to abandon the claim speaks volumes about its importance and peripheral nature in this dispute.
On the other hand, we don't deny that this is something which is in the terms of reference and that this
is the first panel meeting and there are opportunities to present new evidence, so we do not oppose iton that basis".
6.8 This statement could be interpreted as raising no objection at all, as India asserts.  At the time,
however, we understood the United States' view to be that while it viewed India's action with disfavor,
it did not consider that there was a legal objection to India's action – that is, that while the United
States "objected" to India's action in a general sense, it would not pursue any legal objection.  As the
report is based on, and reflects our understanding of , the arguments and positions of the parties, and
the United States does not consider that our characterization of its position is incorrect, we havedetermined to make no change in this regard.
6.9  India made a series of comments regarding paragraphs 7.26 and 7.29 of the report.  India
notes its view that actual or theoretical prejudice to the due process rights of third parties appears to
be a fundamental underpinning for the Panel's decision on the issue of the abandoned claim.  In this
regard, India considers that the interim report omits several facts regarding information (and dueprocess) provided to the third parties by India.  India request that the Panel take note that India
provided certain information to the third parties in  connection with India's intention to resurrect the
abandoned claim, that neither the United States nor any third party objected to these procedures, and
that the Panel did not seek the views of third parties in this context.  In addition, India considers that
paragraph 7.26 is misleading in that it gives the impression that the third parties addressed all theissues in this dispute, and would have addressed India's abandoned claim.
6.10 The United States objects to India's request that the Panel include information about the
approach taken by India in its effort to resurrect the abandoned claim.  As a general matter, the United
States notes that the “facts” that India seeks to have added to the Panel’s report are designed to create
the impression that the third parties in this dispute were not prejudiced by India’s actions – ignoringthe broader systemic concern raised by the panel.  Moreover, the United States notes that as India is
raising this issue at the interim review stage, the third parties are not in a position to express any
contrary views on the matter.
6.11 With respect to the “facts” themselves, the United  States suggests that the relevant fact is that
India failed to obtain agreement from all concerned that it could re-assert a claim that it had explicitlyabandoned in its first submission.  The United States asserts India cannot shift that burden to other
parties by saying that they “failed to object” to procedures which India had invented out of whole
cloth, and that any failure by the United States to object is therefore simply irrelevant.
6.12 Furthermore, the United States questions some of the factual assertions made by India.
Finally, the United States disagrees with India that the Panel should modify the last sentence of
paragraph 7.26.  The United States believes the sentence is accurate and does not create the
“misleading impression” that India asserts.  The United States considers that the scope of the thirdparties’ submissions is clear from the submissions themselves.
6.13 We accept as accurate the facts recited by India, although we have not undertaken to verify
them ourselves.  However, fundamentally, these facts do not affect our decision not to issue a ruling
on India's abandoned claim.  Our decision was not based on actual prejudice to any party or third
party in this case, and thus is unaffected by any facts or argument as to efforts to avoid any prejudicialeffect or the lack of any objection by other partie s to the proceeding.  Our concern, which led to our
ruling, is the desire to establish and maintain orderly procedures that avoid, insofar as possible, theWT/DS206/R
Page 6
possibility of prejudice to parties and third parties in all cases.  We therefore have not changed the
report to include the facts recited by India.  In addition, we have not changed paragraph 7.26 of the
report to specify that the third parties did not address most of the issues raised by India.  Again, while
this is true, it does not have any relevance to our ruling.
6.14 India suggests that the Panel include a reference in paragraph 7.56 of the report to Chile's
third party submission, citing the Spanish text of paragraphs 3 and 5 of Annex II of theAD Agreement.
6.15 The United States objects to India's suggestion.  The United States notes that the Panel based
its findings on Article 6.8 itself, rather than on Annex II, which is the subject of Chile’s arguments
based on the Spanish text.  Moreover, the United States considers that Chile’s arguments
misinterpreted the Spanish text, and misinterpreted the principle of interpretation cited, referring in
this regard to the United States' Answers to Questions of the Panel – First meeting, question 2 to third
parties, paragraphs 94-99.  Given this situation, the United States considers that referencing Chile’ssubmission in the report would not add anything us eful to resolving the matters at issue in this
dispute.  Finally, the United States requests that if the Panel decides to reference Chile’s arguments,
the Panel also reference the U.S. discussions explaining why Chile’s arguments were flawed.
6.16 As the United States correctly points out, our analysis and ruling in paragraph 7.56 is based
on the text of Article 6.8 of the Agreement, which we found establishes that the provisions ofAnnex II are mandatory.  The fact that Annex II uses conditional language is referred to, but is not
relied upon in our analysis.  As we did not rely on Chile's arguments concerning the Spanish text of
Annex II in making our determination, to include a reference to those arguments might be misleading
and result in a misunderstanding as to the basis of our conclusion.  We therefore have not made any
changes to the text of paragraph 7.56.
6.17 With respect to paragraph 7.59 of the report, India asserts that the second sentence does not
accurately reflect India's argument.  India asserts that it did not argue that a small piece of information
that met all four requirements of Annex II, paragraph 3 ( i.e., including the “usable without undue
difficulty” requirement) should not be used in calculating a dumping margin, and never argued that
information which "satisfies paragraph 3 on its own" cannot and should not be used.  Instead, Indiastates that its argument was that a minor or small piece of information would not meet the requirement
of Annex II, paragraph 3 that it could be used withou t undue difficulty (even if it did meet the other 3
conditions in that it is verifiable, submitted on time and in the appropriate computer format).  Thus,
India states, if an objective and non-biased investigating authority finds, after exercising the requisite
degree of effort demanded by the "undue difficulty" standard, that such a "small" piece of informationcannot be used because other information is not available, then that small piece of information would
not "satisfy" the requirements of paragraph 3.  India refers the Panel to its Answers to the Panel's
Questions after the First Meeting, at paragraphs 54 and 60.
6.18 The United States had no comment in this regard.
6.19 It does seem that the text of paragraph 7.59 as drafted failed accurately to reflect the Indian
argument in this respect.  We have therefore modified that paragraph.
6.20 Finally, India suggests that the Panel amend the bracketed phrase "[preliminary and final
determinations of dumping, subsidization, and material  injury]" in the quotation of the text of section
782(e) in paragraph 7.91 of the report in order to make it more accurate.
6.21 India is correct that the bracketed text in the quotation of section 782(e) in paragraph 7.91 of
the report as originally drafted did not fully reflect the substance of the provisions it is intended to
summarize.  We have therefore modified the text in this regard.WT/DS206/R
Page 7
VII. FINDINGS
A. GENERAL ISSUES
1. Standard of review
7.1 While the parties are generally in agreement that the Panel must apply the standard of review
set forth in Article 17.6 of the AD Agreement, they do not agree as to what that standard entails for
the Panel's review in this case.  India considers that the Panel should conduct an "active review" of the
facts before USDOC pursuant to Article 11 of the Understanding on Rules and Procedures Governing
the Settlement of Disputes (hereinafter "DSU") and AD Agreement Article 17.6(i).  India refers in this
regard to the Appellate Body's deci sion regarding the application of Article 11 in a case involving a
decision by national administering authorities not under the AD Agreement, US - Cotton Yarn ,5 as
well as the decision in US – Hot-Rolled Steel ,6 which specifically addressed Article 17.6 of the
AD Agreement.
7.2 The United States criticises India's reference to the standard of review set out in Article 11 of
the DSU.  In the United States' view, India's position is based on an incorrect reading of the WTO
Agreements, and represents an attempt to add to th e obligations of investigating authorities.  The
United States notes that the AD Agreement is unique among WTO Agreements in that it contains aspecified standard of review, which must be applied.  Thus, the United States argues that the decision
in Cotton Yarn  is irrelevant.  Moreover, the United States considers that India's reference to Article 11
attempts to add to the obligations of investigating authorities.
7.3 There is no question in this dispute but that we must apply the standard of review set out in
Article 17.6 of the AD Agreement, which sets forth the special standard of review applicable to anti-dumping disputes.  With regard to factual issues, Article 17.6(i) provides:
“(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 mighthave reached a different conclusion, the evaluation shall not be overturned;”
(emphasis added)
7.4 With respect to questions of the interpretation of the AD Agreement, Article 17.6(ii) provides:
“(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 .” (emphasis added)
7.5 The Appellate Body, in US – Hot-Rolled Steel , considered the relationship between
Article 17.6(i) of the AD Agreement and Article 11 of the DSU, and concluded specifically that, with
respect to the obligation of panels to make an objective assessment of the facts of the matter before
                                                     
5 Appellate Body Report , United States – Transitional Safeguard Measure on Combed Cotton Yarn
from Pakistan  ("US – Cotton Yarn "), WT/DS192/AB/R, adopted 5 November 2001.
6 Appellate Body Report, United States – Anti-Dumping Measures on Certain Hot-Rolled Steel Products
from Japan ("US – Hot-Rolled Steel "), WT/DS184/AB/R, adopted 23 August 2001.WT/DS206/R
Page 8
them, there is no conflict between the two.7  With respect to Article 17.6(ii), the Appellate Body
observed that, while it imposed obligations not found in the DSU on panels in anti-dumping disputes,
it supplemented Article 11 of the DSU in this regard.8
7.6 Thus, we do not consider that India's reference to Article 11 of the DSU constitutes an
argument that we apply some other or different standard of review in considering the factual aspects
of this dispute than that set out in Article 17.6 of the AD Agreement, which India recognizes isapplicable in all anti-dumping disputes.  That standard requires us to assess the facts to determine
whether the investigating authorities' own establishment of facts was proper, and to assess the
investigating authorities' own evaluation of those facts to determine if it was unbiased and objective.
What is clear from this is that we are precluded from establishing facts and evaluating them for
ourselves – that is, we may not engage in de novo  review.  However, this does not limit our
examination of the matters in dispute, but only the manner in which we conduct that examination.  In
this regard, we keep in mind that Article 17.5(ii) of the AD Agreement establishes that we are toexamine the matter based upon "the facts made available in conformity with appropriate domestic
procedures to the authorities of the importing Member."
7.7 With respect to questions of the interpretation of the AD Agreement, we consider that
Article 17.6(ii) requires us to apply the customary rules of interpretation of treaties, which are
reflected in Articles 31-32 of the Vienna Convention on the Law of Treaties.  Article 31 of the ViennaConvention provides that a treaty shall be interp reted in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in light of its object and purpose.  Again, this is no
different from the task of all panels in interpreting the text of the WTO Agreements.  What
Article 17.6 (ii) of the AD Agreement adds is an instru ction that, if this process of treaty interpretation
leads us to the conclusion that the interpretation of the provision in question put forward by the
defending party is permissible, we shall find the measure in conformity if it is based on that
permissible interpretation.
2. Burden of proof
7.8 Although the question of “burden of proof” does not appear to play a central role in the
arguments of the parties to this dispute, we have kept in mind that the burden of proof in WTOdispute settlement proceedings rests with the party that asserts the affirmative of a particular claim or
defence.
9  It implies that the complaining party will be required to make a prima facie  case of
violation of the relevant provisions of the WTO AD Agreement, which is for the defendant, in this
case the United States, to refute.10  The role of the Panel is not to make the case for either party, but it
may pose questions to the parties “in order to clarify and distil the legal arguments”.11
                                                     
7 Appellate Body Report, US – Hot-Rolled Steel , at para. 55
8 Id., at para 62.
9 Appellate Body Report, United States – Measure Affecting Imports of Woven Wool Shirts and Blouses
from India , WT/DS33/AB/R and Corr.1, adopted 23 May 1997,  at p.  14, DSR 1997:I, 323.
10 We note statement of the Appellate Body in Korea – Dairy that: “We find no provision in the DSU
or in the Agreement on Safeguards that requires a Panel to make an explicit ruling on whether the complainanthas established a prima facie case of violation before a panel may proceed to examine the respondent’s defenceand evidence.”  Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of Certain Dairy
Products,  WT/DS98/AB/R, adopted 12 January 2000, at para. 145.  The Appellate Body confirmed this view in
Thailand – Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-Beams fromPoland ("Thailand – H-Beams
 "), WT/DS122/AB/R, adopted 5 April 2001, at para. 134: “In our view a panel is
not required to make a separate and specific finding in each and every instance that a party has met its burden ofproof in respect of a particular claim, or that a party has rebutted a prima facie case.”
11 Appellate Body Report, Thailand – H-Beams , at para. 136.WT/DS206/R
Page 9
B. PRELIMINARY ISSUES
7.9 While the United States did not request any preliminary rulings, it raised two issues which
may be considered "preliminary" in the sense that it  is useful to resolve them before we address the
resolution of India's claims.
7.10 First, the United States argued that we should disregard the affidavits of Mr. Albert Hayes,
submitted by India as exhibits in this dispute.  The United States notes that Mr. Hayes is an employeeof the law firm that is representing the Indian Government in this dispute, that his affidavits were
prepared especially for purposes of supporting Indi a's arguments in this case, more than two years
after USDOC issued its final determination, and that the firm to which he belongs did not represent
SAIL in the underlying AD investigation.  The United States argues that the information in Mr.
Hayes' affidavit was never made available to USDOC during the underlying AD investigation.
Consequently, the United States argues that the Hayes affidavits and the information therein are not
part of the "facts made available in conformity with appropriate domestic procedures to the authoritiesof the importing Member" and therefore should not be considered by the Panel, under Article 17.5 of
the Agreement.
7.11 Regarding this issue, we note, as mentioned above, that a panel is obligated by Article 11 of
the DSU to conduct "an objective assessment of the ma tter before it".  In this case, we also consider
the implications of Article 17.5(ii) of the AD Agreement as the basis for which evidence may beconsidered.  That Article provides:
"The DSB shall, at the request of the complaining party, establish a
panel to examine the matter based upon: …
(ii) the facts made available in conformity with
appropriate domestic procedures to the authorities of the importingMember".
The Panel in the US - Hot-Rolled Steel  dispute considered it clear that,
"under this provision, a panel may not, when  examining a claim of violation of the
AD Agreement
22 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 had been
made available in conformity with the appropriate domestic procedures to the
authorities of the investigating country during the investigation.
______________________
22 We note that there is no claim under Article VI of GATT 1994 in this case, so we need not
consider whether Article 17.5(ii) has implications for the evidence a panel may consider inthat context."
12
In this case, although there is a claim under Article VI of GATT 1994, India relies on the Hayes
affidavits principally in connection with its specific claims under the AD Agreement.
                                                     
12 Panel Report, United States – Anti-Dumping Measures on Certain Hot-Rolled Steel Products from
Japan , ("US – Hot-Rolled Steel "), WT/DS184/R, adopted 23 August 2001 as modified by the Appellate Body
Report,  at para. 7.6.WT/DS206/R
Page 10
7.12 The basis of much of India's argument is the assertion that the US sales price information
submitted by SAIL was not "unusable".  India argues that the errors in that information submitted by
SAIL could have been corrected by a simple change in the computer program used in calculating
margins.  The Hayes affidavits describe the errors  in the information (which are undisputed), and
describe changes in the USDOC computer program (which is available to parties) which would, in
Mr. Hayes' opinion, have corrected it.  The affidavits also set out Mr. Hayes' opinion, as a formerUSDOC investigator, that this sort of change was within the normal bounds of USDOC actions in
anti-dumping cases.  The affidavits also sort the US sales price information submitted by SAIL with
reference to different criteria to support the argument that it could have been used as the basis for the
export price side of the dumping margin calculation.
7.13 In our view, the Hayes affidavits do not introduce new "evidence" relevant to the
determinations made by USDOC.  Rather, we consider that India, in submitting them, is seeking to
offer something in the nature of "expert opinion" in  support of elements of India's argument.  All the
data on which the Hayes affidavits are based was before the USDOC at the time of its determinations.
What the affidavits do is present the information submitted in a different manner than originally
submitted, and adjust and sort it in various ways.  In our view, this is an aspect of India's argument
that is based on the information originally submitted, and is not itself new information that was not
before the investigating authority.  Indeed, India's arguments based on the Hayes affidavits can beunderstood without reference to the affidavits themselves or the information therein.  Thus, we
decline to exclude the Hayes affidavits from this proceeding.  We note however that we have not, in
fact, found it necessary to rely on the Hayes affidavits in reaching our conclusions in this dispute, and
thus need not decide the weight, if any, to place on these affidavits.
7.14 Second, the United States argues that India's cl aim regarding US "practice" in the application
of total facts available is not properly before the Panel.  The United States argues that the "practice"
referred to is nothing more than individual instance s of the application of the relevant statutory and
regulatory provisions.  The United States notes that, under US law, an agency such as USDOC may
depart from established "practice" if it gives a reasoned explanation for doing so.  The United States
relies on the Panel's decision in United States - Measures Treating Exports Restraints as Subsidies  for
the proposition that its total facts available practice does not have "independent operational status",
i.e., that it is not a "measure."  Consequently, the United States argues, US "practice" cannot be the
subject of a claim.  Moreover, the United States argues that even if such "practice" could be the
subject of a claim, the challenged practice would still not be properly before this Panel, as India did
not identify this "practice" in its consultation request.  The United States notes that it raised this pointin the DSB in response to India's request for the establishment of a Panel.  Accordingly, the United
States maintains that India's claim fails to conf orm to Articles 4.7 and 6.2 of the DSU and must be
rejected for that reason alone.
7.15 India argues that a "practice"  becomes a "measure" through repeated similar responses to the
same situation, and that therefore the US practice it challenges is properly before the Panel.  India
asserts that USDOC always applies total facts available in particular factual circumstances, and has
done so consistently since 1995.  Parties to a USDOC investigation can predict that USDOC will
apply this "practice".  In India's view, where such a practice is established over a long period of time,
it takes on the character of a measure, because a similar response to similar circumstances can be
predicted (or threatened) in the future.  India considers that the point at which a pattern of similar
conduct takes on the character of a measure is to be determined on the facts and circumstances of each
case.  But in India's view, the label of "practice", as opposed to administrative procedure, regulationor law, coupled with the assertion that it can be changed at any time, does not render the "practice" in
question immune to challenge.  To accept this possibility would, India asserts, open the door for
potential abuse of the obligations impos ed by the AD and other WTO Agreements.WT/DS206/R
Page 11
7.16 India also maintains that the fact that a "practice" can be changed relatively quickly does not
make it a "non-measure."  India points out that administrative procedures, regulations or even laws
can be changed just as easily and quickly.  Moreover, in India's view, USDOC's total facts available
practice constitutes an "administrative procedure" as that term is used in Article 18.4 of the
AD Agreement.  It is an "administrative" action because it is taken by an agency of the US
government.  It is a "procedure" because it details what procedure will be used for the calculation ofdumping margins in the event that one "essential" component of information is not provided by an
interested foreign party.   The fact that this "administrative procedure" is established in the decisions
of USDOC and the USCIT in individual cases does not, India maintains, make it any less a
"procedure."  To find otherwise would be to elevate form over substance.  India considers that the
facts in the US – Export Restraints  decision distinguish it from this case.  Specifically, India point out
that the "practice" in the US – Export Restraints  case, that of treating export restraints as
countervailable subsidies, had not been applied following the entry into force of the WTOAgreements.  The panel concluded that Canada had not "identified concretely what US 'practice' is",
and that the term "practice in the sense used by Canada cannot require any particular treatment of
export restraints in US CVD investigations."
13  In India's view, the "practice" at issue in this dispute is
far different from the non-practice at issue in US – Export Restraints , because USDOC always  applies
total facts available when one of the components of information USDOC considers to be "essential"
cannot be used.  USDOC itself stated in the Final Determination that its consistent practice is to apply
"total facts available".
7.17 In considering this second issue, we note that our mandate in this dispute is to consider the
claims that are within our terms of reference, which are established by the request for establishment.
The United States argues that the Indian claim regarding "practice" is not properly before us becauseit was not identified in the request for consultatio ns, and not actually consulted about.  Similar
arguments have been considered by previous panels and the Appellate Body.  For instance, in the
Brazil-Aircraft  dispute, the Panel considered an argument that certain measures were not properly
before the Panel because they were not enacted until after the consultations were held, and therefore
were not the subject of consultations and could not be considered by the Panel.  The Panel found thatthe measures in question were part of the overall scheme of export subsidization which was the
subject-matter of the dispute, and that scheme had clearly been the subject of the consultations.
14  The
Panel went on to observe that its terms of reference were based upon the request for establishment,
which governed the parameters for the panel's work.  The Panel concluded further that "Nothing in the
text of the DSU…provides that the scope of a panel's work is governed by the scope of priorconsultations.  Nor do we consider that we should seek to somehow imply such a requirement into the
WTO Agreement."
15  On appeal, the Appellate Body upheld the Panel's conclusion, stating "We do
not believe, however, that Articles 4 and 6 of the DSU, …, require a precise and exact identity
between the specific measures that were the subject of consultations and the specific measures
identified in the request for the establishment of a panel."16
7.18 In this case, the request for consultations clearly identified the USDOC determination
regarding application of facts available in the challenged determination, and identified the provisionsof US law governing application of facts available as measures in dispute.  Thus, in our view, the
application of facts available in the US anti-dumping  system, both in general (based on the statutory
provision), and as actually applied in this case, were the subject of the dispute about which
                                                     
13 Panel Report, United States – Measures Treating Exports Restraints as Subsidies  ("US – Export
Restraints "), WT/DS194/R and Corr.2, adopted 23 August 2001, at  para. 8.129.
14 Panel Report, Brazil – Export Financing Programme for Aircraft  ("Brazil – Aircraft "), WT/DS46/R,
adopted 20 August 1999, as modified by the Appellate Body Report, DSR 1999:III, 1161, at para. 7.8.
15 Id., at para. 7.9.
16 Appellate Body Report, Brazil – Aircraft , WT/DS46/AB/R, adopted 20 August 1999,
DSR 1999:III, 1161., at para.  132-133.WT/DS206/R
Page 12
consultations were requested.  The request for establishment specifically identifies the US practice in
applying facts available as a measure in dispute.  This does not, in our view, change the subject matter
of the dispute before us in any significant respect from that which was consulted.  Accordingly, we
consider the US objection based on failure to identify the US practice as a measure in dispute in the
request for consultations to be without merit in this case.
7.19 We turn now to the question whether the US practice in the application of total facts available
is a measure at issue in this dispute.  Article 6.2 of the DSU provides that the request for the
establishment of a panel "shall provide a brief summar y of the legal basis of the complaint sufficient to
present the problem clearly".  In this case, the claim regarding USDOC's practice in applying "total
facts available" is clearly identified in tiret (d) of the request for establishment as a measure in
dispute.  Moreover, paragraph 3 of the request for establishment identifies the legal basis of the claim
regarding that measure.  Thus, unless we conclude that a "practice" is not a measure that can be the
subject of a claim in dispute settlement under the AD Agreement, it would seem that the US objectionmust fail.  This question was alluded to, but not decided, by the Panel in the US - Hot-Rolled Steel
dispute.
7.20 A ruling on "practice" standing alone would raise a number of questions, particularly if that
practice is based on a statute that is found to be not inconsistent with the AD Agreement.  In US –
Section 301 Trade Act
  the Panel, in considering whether certain statutory provisions were or were not
consistent with the relevant WTO obligations, considered it necessary to consider the internal criteria
or administrative procedures of the agency administering the law, i.e., "practice" to reach a
conclusion.17  However, this is different from a conclusion that a particular "general practice" can be
the subject of a claim in a dispute challenging an anti-dumping measure simply because that measure
was adopted based in part on the application of that practice.  Moreover, a number of panels haveconcluded that a statute can be found inconsistent on its face with a Member’s WTO obligations only
if it is mandatory and requires WTO inconsistent action or prohibits WTO consistent action.
18  If the
United States is correctly representing US law, as appears to be the case, and a "practice" can be
changed by the administering agency, then such a practice would not be mandatory.  It would be
particularly anomalous to rule that a non-mandatory "practice" is inconsistent with relevant WTOobligations when a non-mandatory statute allowing the practice would not be found inconsistent.  The
relevant practice could be changed as necessary, in any case, to conform to the WTO norms identified
by the panel in ruling that the statute was not inconsistent with those norms.
7.21 We note that the Appellate Body, in Guatemala-Cement I , concluded that Article 17.4 of the
AD Agreement, read together with Article 6.2 of the DSU, requires a panel request in a dispute underthe AD Agreement to identify as the specific measure at issue, either a definitive anti-dumping duty,
the acceptance of a price undertaking, or a provisional measure.
19   Clearly, the challenged "practice"
is not one of these three types of measure.  Subsequently, the Appellate Body clarified, in US –
1916 Act , that nothing in its decision in Guatemala-Cement I  suggested that Article 17.4 precluded
review of anti-dumping legislation as such.20  It went on to note that Article 18.4 supported the
                                                     
17 Panel Report, United States – Sections 301-310 of the Trade Act of 1974  ("US – Section 301 Trade
Act "), WT/DS152/R, adopted 27 January 2000, at paras. 7.24 – 7.27,
18 This principle was well-established in GATT jurisprudence.  Under the WTO, as noted, a number of
panels have maintained this principle.  For instance, the Panel in United States – Section 301  recognized the
"classical test in the pre-existing jurisprudence that only legislation mandating a WTO inconsistency or
precluding WTO consistency, could, as such, violate WTO provisions".  Panel Report, US – Section 301 Trade
Act, at para. 7.54.
19 Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding Portland Cement from
Mexico ("Guatemala – Cement I "), WT/DS60/AB/R, adopted 25 November 1998, DSR 1998:IX, 3767, at
para. 79.
20 Appellate Body Report, United States – Anti-Dumping Act of 1916 ("US – 1916 Act "),
WT/DS136/AB/R, WT/DS162/AB/R, adopted 26 September 2000, at para. 72.WT/DS206/R
Page 13
conclusion that AD legislation could be examined, as such, by a panel.21  Article 18.4 requires each
Member to bring into conformity with its obligations under the AD Agreement, its "laws, regulations,
and administrative procedures".   It is thus clear to us that, in addition to the specific measures set out
in Article 17.4 of the AD Agreement, a request for establishment of a panel to examine a matter under
the AD Agreement may raise, as measures in dispute, a Member's laws, regulations, and
administrative procedures as such.
7.22 The "practice" India has challenged is not, on its face, within the scope of the measures that
may be challenged under Article 18.4 of the AD Agreement.  In particular, we do not agree with the
notion that the practice is an "administrative proce dure" in the sense of Article 18.4 of the Agreement.
It is not a pre-established rule for the conduct of anti-dumping investigations.  Rather, as India
suggests22 a practice is a repeated pattern of similar responses to a set of circumstances – that is, it is
the past decisions of the USDOC.   We note in this regard that the USDOC decisions on application of
facts available turn on the particular facts of each case, and the outcome may be the application oftotal facts available or partial facts available, depending on those facts.  India argues that at some
point, repetition turns the practice into a "procedure", and hence into a measure.  We do not agree.
That a particular response to a particular set of circumstances has been repeated, and may be predicted
to be repeated in the future, does not, in our view transform it into a measure.  Such a conclusion
would leave the question of what is a measure vague and subject to dispute itself, which we consideran unacceptable outcome.  Moreover, we do not consider that merely by repetition, a Member
becomes obligated to follow its past practice.  If a Member were obligated to abide by its practice, it
might be possible to deem that practice a measure. The United States, however, has asserted that
under its governing laws, the USDOC may change a practice provided it explains its decision.
23
7.23 In this context, we note particularly the decision of the Panel in US – Export Restraints .24  In
that case, the Panel faced the question whether the measures identified by Canada, including US
practice, with respect to the treatment of export restraints as subsidies, required the USDOC to treat
export restraints in a certain way.  The Panel addressed the question whether the measures identified
could give rise to a violation of WTO obligations by considering whether each measure constituted
"an instrument with a functional life of its own, i.e., that it would have to do something concrete,
independently of any other instruments, for it to be able to give rise independently to a violation of
WTO obligations."25  In answering this question, the Panel considered the status, under US law, of
each measure identified, including the challenged US practice.   With respect to that practice, the
Panel observed that USDOC could depart from it, so long as it explained its reasons for doing so, and
concluded that this fact "prevents such practice from achieving independent operational status in thesense of doing  something or requiring  some particular action…US "practice" therefore does not
appear to have independent operational status such that it could independently give rise to a WTO
violation as alleged by Canada".
26  The challenged practice in this case is, in our view, no different
from that considered in the US – Export Restraints  case.  It can be departed from so long as a
reasoned explanation is given.  It therefore lacks independent operational status, as it cannot require
USDOC to do something, or refrain from doing something.
7.24 Thus, we conclude that the challenged US practice concerning the application of total facts
available is not a separate measure which can independently give rise to a WTO violation, and we will
                                                     
21 Id., at paras. 76-79.
22 Answers of India to Questions of the Panel - First Meeting, questions 35 & 36, at para. 74.
23 Answers of the United States to Questions of the Panel - First Meeting, question 34, at paras. 83-84
and fns. 54 & 55 and cases cited therein.
24 US – Export Restraints .
25 Id., at para. 8.85.
26 Id., at para 8.126.WT/DS206/R
Page 14
therefore not rule on the consistency of that practice, as such, with the United States' obligations under
the AD Agreement.
C. ABANDONED CLAIM
7.25 In footnote 12 of its first written submission, India explicitly abandoned several claims that
had been set out in the request for establishment of this Panel.  India stated that, inter alia , "India is no
longer pursuing the following claims set forth in its request for establishment of the panel:…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".27  By letter dated 16 January
2002, India stated its intention to pursue one of these claims with arguments to the Panel at its first
meeting with the parties and in its rebuttal submission.  India noted that it had included footnote 12 in
its first submission in an effort to limit the burden on the Panel and the United States regarding those
claims not supported by clear information in the record.  However, India stated that, in preparing for
the first meeting of the Panel with the parties, it "discovered" information in the confidential version
of the record of this dispute that supports this abandoned claim.  The United States did not specifically
object to India's stated intention to pursue this claim, noting that it was within the Panel's terms of
reference.  We made a ruling on this issue at our firs t meeting with the parties, in order to clarify the
scope of the issues and arguments in this dispute.  Our reasons and ruling are set out below.
7.26 Despite the lack of specific objection by the United States, we believe that India's stated
intention to pursue this claim requires careful consideration.  While it is true that the claim in question
was set out in the request for establishment, and is therefore within our terms of reference, we are not
persuaded that fact alone requires us to rule on it.   We note in particular that the claim was explicitly
abandoned  by India at the time of its first written submission.  The United States as the defending
Member, and third parties participating in this proceeding, were justified in relying on India'sstatement that it was not pursuing this claim.  Indeed, neither the United States nor any third party
addressed the claim in their respective written submissions.
7.27 This situation is not explicitly addressed in either the DSU or any previous panel or Appellate
Body report.  We do note, however, th e ruling of the Appellate Body in Bananas  to the effect that a
claim may not be raised for the first time in a first written submission, if it was not in the request forestablishment.
28  One element of the Appellate Body's decision in that regard was the notice aspect of
the request for establishment.  The request for establishment is relied upon by Members in deciding
whether to participate in the dispute as third partie s.  To allow a claim to be introduced in a first
written submission would deprive Members who did not choose to participate as third parties from
presenting their views with respect to such a new claim.
7.28 The situation here is, in our view, analogous.  That is, to allow a party to resurrect a claim it
had explicitly stated, in its first written submission, that it would not pursue would, in the absence of
significant adjustments in the Panel's procedures, deprive other Members participating in the dispute
settlement proceeding of their full opportunities to defend their interest with respect to that claim.
Paragraphs 4 and 7 of Appendix 3 to the DSU provid e that parties shall "present the facts of the case
and their arguments" in the first written submission, and that written rebuttals shall be submitted prior
to the second meeting.  These procedures, in our view, envision that initial arguments regarding a
claim should be presented for the first time in the first written submission, and not at the meeting of
the panel with the parties or in rebuttal submissions.
                                                     
27 First Written Submission of India, at fn. 12.  India did not seek to reinstate any of the other claims it
abandoned.
28 Appellate Body Report , European Communities – Regime for the Importation, Sale and Distribution
of Bananas  ("EC – Bananas III "), WT/DS27/AB/R, adopted 25 September 1997, DSR 1997:II, 591, at
para. 143.WT/DS206/R
Page 15
7.29 With respect to the interests of third parties, the unfairness of allowing a claim to be argued
for the first time at the meeting of the panel with th e parties, or in rebuttal submissions, is even more
pronounced.  In such a circumstance, third parties would be entirely precluded from responding to
arguments with respect to such a resurrected claim, as they would not have access to those arguments
under the normal panel procedures set out in paragraph 6 of Appendix 3 to the DSU.  Further, India
has identified no extenuating circumstances to justify the reversal of its abandonment of this claim.29
Thus, in our view, it would be inappropriate in these circumstances to allow India to resurrect its
claim in this manner.  Therefore, we will not rule on India's claim 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.30
7.30 Of course, this does not affect the scope of India's arguments in support of its other claims.
Therefore, India may present arguments involving Articles 6.6 and 6.8 and Annex II paragraph 7 in
the context of its arguments in support of those cl aims, concerning violations of other provisions of
the AD Agreement, which it did not abandon.
D. CLAIMS AND ARGUMENTS
1. Overview
7.31 The core question in this dispute concerns the meaning of Article 6.8 of the AD Agreement,
and paragraphs 3 and 5 of Annex II of the Agreement.  Article 6.8 and Annex II together govern theapplication of "facts available" in anti-dumping investigations.  India has challenged the US statutory
provisions implementing these rules into US municipal law as being inconsistent on their face with
the AD Agreement.  India has also challenged the application of those provisions in the USDOC
investigation at issue.  In this case, USDOC reje cted all of SAIL's reported information, and made its
final determination on the basis of facts available.  This is identified by India as a decision based onthe application of USDOC's "total facts available" practice.  In India's view, USDOC impermissibly
rejected SAIL's US sales price information and resorted to total facts available based on conclusions
that other information submitted was unusable, and that certain information requested was not
submitted, such that USDOC lacked sufficient reliable information on which to base determinations.
India also considers that USDOC impermissibly conc luded that SAIL had failed to cooperate to the
best of its ability, justifying an adverse inference, and consequently based its final dumping margin
for SAIL on the highest dumping margin alleged in the application.
7.32 India argues that USDOC should not have rejected all of SAIL's reported information because
of problems with some  of that information.  Specifically, India argues that USDOC was required by
the AD Agreement, in particular Article 6.8 and paragraph 3 of Annex II, to use the US sales priceinformation reported by SAIL.  India maintains th at USDOC could have, and should have, determined
export price from that information, and should have re sorted to facts available only with respect to the
particular categories of information which were either flawed or not available.
31  India asserts that the
USDOC decision to reject all of SAIL's information and rely instead on facts available was required
under US law, and that therefore US law is inconsistent on its face with the provisions of the
AD Agreement governing reliance on facts available.  India also submits that SAIL acted to the best
of its ability to supply complete responses to US DOC, but that difficulties in compiling information
prevented it from complying any more fully.  Thus , in India's view, USDOC erred in applying adverse
                                                     
29 This is not, for example, a case where a complainant obtained, through the dispute settlement
process, information in support of a claim to which it did not otherwise have access.
30 We note that, since we do not reach India's alternative claims in this dispute, as discussed below in
para. 7.80, we also would not have reached this claim in any event.
31 India appears to accept USDOC's decision to reject other information submitted, and rely instead on
facts available.WT/DS206/R
Page 16
inferences.  India has raised additional claims asserting that, as a result of improper application of
facts available, the US final anti-dumping measure is in violation of Articles 2.2 and 2.4 of the
AD Agreement, because it is based on an improper calculation of normal value and an unfair
comparison in the calculation of dumping margins, and is in violation of Article 9.3 of the
AD Agreement and Articles VI:1 and 2 of GATT 1994, because it imposes a duty that is based on an
improper calculation and comparison.
7.33 India also claims that the United States violated Article 15 of the AD Agreement by failing to
give special regard to India's status as a developing country when considering the application of AD
duties, and failing to explore the possibilities of constructive remedies before applying duties.
2. Whether USDOC acted inconsistently with Article 6.8 and Annex II of the
AD Agreement in resorting to use of facts a vailable in the AD investigation in question
7.34 India asserts that USDOC violated Article 6.8 and paragraph 3 of Annex II of the
AD Agreement by rejecting verifiable, timely, and appropriately submitted information concerningUS sales prices provided by SAIL in response to questionnaires during the course of the investigation.
In India's view, an unbiased and objective investigating authority evaluating the evidence concerning
the US sales price information submitted by SAIL could not have concluded that SAIL had failed to
provide necessary information within a reasonable period.  Therefore, in India's view, the necessary
predicate for resort to facts available with respect to US sales price information was missing.  Indiaacknowledges that other  information requested by USDOC was not submitted, and does not here
challenge USDOC's resort to facts available with re spect to such other information.  However, India
maintains that the US sales price information fully satisfied the requirements of paragraph 3 of
Annex II, and that therefore, USDOC was required  to take that information into account in the
calculation of dumping margin.
7.35 India also raises two alternative claims.  India argues that, assuming, arguendo , that the US
sales price information was not ideal in all respects , an unbiased and objective investigating authority
could not have concluded that SAIL did not act to the best of its ability in providing that information,
and therefore USDOC violated paragraph 5 of Annex II in rejecting that information.  India urges the
Panel to decide this alternative claim regardless of the disposition of India's principal claim underArticle 6.8 and paragraph 3 of Annex II.
32   India also claims, in the alternative, that assuming the
Panel concludes that USDOC did not act inconsistent ly in rejecting the US sales price information
submitted by SAIL, the Panel should find that USDOC acted inconsistently with paragraph 7 of
Annex II of the AD Agreement in concluding that  SAIL had "failed to cooperate" and therefore
applying "adverse" facts available.
7.36 The United States does not dispute the essential facts as presented by India, but it defends the
USDOC decision rejecting all of the information s ubmitted by SAIL, including the information on US
sales prices, and basing its determination on facts available instead.  The United States asserts that
USDOC gave notice of the information that woul d be required for the dumping determination and
identified deficiencies in the information prov ided in SAIL's questionnaire responses, both the
original questionnaire and subsequent requests for information, on at least five occasions.  The United
States maintains that USDOC accepted additions, corrections, and modifications to the informationsubmitted, and granted several requests for additiona l time to provide information, in an effort to
assist SAIL and obtain usable information necessary for the dumping determination.
7.37 The United States asserts that SAIL never indicated that it could not  provide the requested
information, but merely indicated repeatedly that it needed additional time due to difficulties in
gathering and submitting the information.  Ultimately, USDOC concluded that some of the
                                                     
32 First Written Submission of India at para. 116.WT/DS206/R
Page 17
information requested was never submitted in a usable format, and thus USDOC was unable to satisfy
itself regarding the accuracy of the information that was submitted.  USDOC concluded that there
were fatal gaps in the necessary information, which precluded the determination of a dumping margin
based on the information that had been submitted, and necessitated resort to facts available with
respect to the entire determination.  In the US view, it is clear that SAIL had the ability to provide the
requested information, but failed to do so.  Therefore, the United States considers that USDOC wasjustified in ultimately concluding that SAIL had failed to act to the best of its ability in gathering and
submitting the information, and applying adverse facts available.
7.38 We consider first the question whether USDOC acted inconsistently with the United States'
obligations under Article 6.8 and paragraph 3 of Annex II of the AD Agreement in finding that SAIL
had failed to provide necessary information, and basing its final determination on facts available.  We
consider that this issue is properly evaluated by considering whether the USDOC decisions in this
context were such as could be reached by an unbiased and objective investigating authority on thebasis of the facts before it and were based on a permissible interpretation of the AD Agreement.
7.39 As noted above, there is no dispute between the parties as to the events that transpired during
the steel plate investigation.  The dispute is with the interpretation of those events and the
consequences with regard to the use of facts available.  In order to set the background of our analysis,
a summary of the relevant facts, and the conclusions reached by USDOC, is set out below.
7.40 The investigation was initiated on 8 March 1999, and on 17 March 1999, USDOC issued the
basic questionnaires to the foreign producers and exporters, including SAIL.  The questionnaires
consisted of multiple parts, each requesting different information.  Between 12 April and 10 May
1999, SAIL submitted responses to all parts of the questionnaire, and on 11 May 1999 submitted sales
and cost information on computer disk.  On 27 May 1999, USDOC issued a first supplementalquestionnaire.  On 11 June 1999, SAIL submitted its response to the supplemental questionnaire, and
on the same day, USDOC issued a second supplement al questionnaire.  On 16 June 1999, SAIL filed
its initial response to the second supplemental questionnaire and  revised US sales computer database,
and on 18 June 1999, SAIL submitted information further supplementing previous submissions.  On
29 June 1999, SAIL made three submissions, tw o in response to USDOC's third deficiency
questionnaire issued on 18 June 1999, and one in response to USDOC's first supplemental
questionnaire.   On 12 July 1999, USDOC sent a letter to SAIL providing it with a final opportunity to
submit a reliable electronic database and information on product-specific costs.  On 16 July 1999,
SAIL submitted another version of the US sales database, revising information previously submitted.
As outlined in the parties' submissions, the principal areas in which problems arose involved SAIL'shome market sales prices and cost of production information.  USDOC also had concerns with the
electronic databases submitted, and that some of SAIL's submissions were made past the applicable
deadlines.
7.41 USDOC issued a preliminary dumping determination based on facts available on 19 July
1999, but did not apply adverse facts available.  On 16 August 1999, USDOC granted  SAIL's request
for an additional extension to reply to the fourth and fifth deficiency letters, which had been issued on
2 and 3 August 1999, respectively.  On 12 and 23 August, USDOC provided SAIL with outlines of
the agenda and procedures to be followed during the separate on-site sales and cost verification trips
to India .  On 17 August 1999, SAIL made further changes to the computer tape containing US sales
information.  On 1 September 1999, the first day of verification, SAIL submitted a "final" version of
the computer database containing US sales information.  On 3 November 1999, USDOC issued its
sales verification report.
33
                                                     
33 USDOC conducted separate verifications of sales and cost information, and issued separate reports.WT/DS206/R
Page 18
7.42 In the sales verification report, USDOC recorded extensive problems with the reported
information on home market sales and prices.  The situation was markedly different with respect to
the reported information on US sales and prices.  USDOC noted that SAIL had provided a complete
listing of its US sales transactions during the period of investigation, that USDOC did not discover
any unreported sales that should have been included, and that with respect to completeness and
“Quantity and Value” the verification team “noted no discrepancies.”34  The report did specify one
error in SAIL’s US sales information in the "Summary of Significant Findings" section, the incorrect
reporting of product width on all US sales of plate 96 inches wide.35  The verification report indicated
that the error was investigated, and  that it “appeared to be limited exclusively to products that had a
width of 96 inches and to the US database.”36  USDOC obtained a list of all the affected sales
transactions from SAIL.37  Other errors with respect to the US sales price information discovered
during the verification were not reported in the “Summary of Significant Findings” section of the
verification report, although they were detailed elsewhere in the report.38
7.43 On 13 December 1999, USDOC issued a memorandum concerning "Determination of
Verification Failure", listing deficiencies in information submitted by SAIL.39  This memorandum sets
out fourteen specific deficiencies in the information submitted.  The only one which concerned the US
sales information was the error involving product width noted above.40   The memorandum, in the
“Analysis” section, states with respect to the information concerning U.S. sales:
“As detailed in the Sales Verification Report, several errors were described in the
U.S. 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.  The fact that limited errors
where [sic] found must not be viewed as testimony to the underlying reliability of theSAIL's reporting, particularly when viewed in context the widespread problems
encountered with all the other data in the questionnaire response.
41
The memorandum recommends that USDOC conc lude that SAIL "failed verification".
7.44 On 29 December 1999, USDOC issued its final determination of sales at less than fair value.
USDOC rejected all of the information submitted by SAIL as “unusable”42, and instead based its
determination on facts available.  Concerning its decision, USDOC stated that:
"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 forthe products. See Home Market and United States Sales Verification Report (``Sales
Report''), dated November 3, 1999; see also  Cost of Production and Constructed
Value Verification Report (``Cost Report''), dated November 3, 1999. … 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
                                                     
34 Exhibit India-13 at 8, 9, 13, 14.
35 Id., at 5.
36 Id.
37 Id.
38 Id., at 8, 12-13,15, 29-33.
39 Exhibit India-16.
40 Id., at 3.
41 Id., at 5.
42 64 Fed. Reg. 73126, 73131 (29 December 1999), Exhibit India-17.WT/DS206/R
Page 19
manner requested. … 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 December 13, 1999…. subsequent to the preliminary
determination we issued two additional ques tionnaires and further extensions to SAIL
presenting it yet additional opportunities to submit a complete and accurate electronicdatabase. Nevertheless, the Department found at verification that the final submission
was again substantially deficient (see the Department's Position below; see
Verification Memo; and see Sales Report and Cost Report). Therefore the
Department may ``disregard all or part of the original and subsequent responses,''
subject to subsection (e) of section 782…. In the instant investigation, record
evidence supports the following findings: … as stated in the Preliminary
Determination and the sales and cost verification reports, SAIL was given numerousextensions 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
electronic versions of SAIL's cost of production which did not include any
constructed value information.
Second, with 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.
Third, 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.
Fourth, 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.
Finally, with respect to section 782 (e)(5), the U.S. sales database contained errors
that, while in isolation were susceptibl e 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 marginand must resort to facts available pursuant to section 776(a)(2) of the Act." (emphasis
added)
43
7.45 India argues that the ordinary meaning of Article 6.8 and paragraph 3 of Annex II of the
AD Agreement requires an investigating authority to use, in its calculation of dumping margins, any
information submitted by a company in response to questionnaire requests that meets the conditions
set out in paragraph 3.  India maintains that those conditions are that (1) the information must be
verifiable, that is, capable of being verified, (2) "appropriately" submitted, that is, at a time, in aformat, and in a manner that makes it capable of being used by investigating authorities without undue
difficulties, (3), submitted in a timely fashion, and (4) submitted in a medium or computer language
requested by the authorities.  In India's view, any category
44 of information which satisfies these
requirements must be used by the investigating auth orities, even if information in some other category
fails to satisfy the conditions, and with respect to which resort is had to facts available.   India submits
                                                     
43 Id., at 73127.
44 India subsequently referred to a "component/category/set" of information.WT/DS206/R
Page 20
that paragraph 5 of Annex II acts as an "additional safeguard" to ensure that investigating authorities
attempt to use a particular category of information submitted even if it is not perfect, so long as the
supplier acted to the best of its ability in providing that information.
7.46 India maintains that Articles 15 and 6.13 of the AD Agreement provide contextual support for
India's interpretation.  India asserts that Article 15 suggests that the "best efforts" of a developing
country exporter must be evaluated with "special regard", and that Article 6.13 suggests that theauthorities must take due account of the difficul ties of companies, especially small companies, in
responding, and must provide "any assistance practicable".  Thus, India argues, investigating
authorities must adapt themselves to the needs of the respondent, and must assist them in responding.
India also asserts that the object and purpose of the AD Agreement support India's interpretation of
the Article 6.8.  In India's view, one of the key principles governing anti-dumping investigations is the
"goal of ensuring objective decision-making based on facts".
45   Thus, India argues that the purpose of
allowing resort to "facts available" is to provide a tool to complete the investigation, and not a meansto punish respondents who cannot provide information, which would be unjustifiable in any event.
India maintains that Article 6.8 and the provisions of Annex II must be read to require cooperation by
the investigating authorities, and to not allow them  to resort to facts available unless no other way is
possible, and even then only with "special circumspection".
7.47 The United States disagrees with the interpretation of "information" which underlies the
Indian position regarding Article 6.8 and paragraphs 3 and 5 of Annex II.  The United States submits
that Article 6.8 refers to the "necessary informatio n" to which the investigating authority has to have
access.  In the US view, this refers to all the necessary information for purposes of reaching a
dumping determination, not to "categories" of information that can be evaluated separately.  Thus, the
United States considers that Article 6.8 and Annex II permit an investigating authority to resort tofacts available for all aspects of its determination, if some  necessary information is not provided,
without considering the information actually submitted.  The United States argues that India's
interpretation would allow responding parties to selectively provide information and require the
investigating authority to use that information, even  in the absence of other information which, in the
US view, is necessary.  The United States mainta ins that this would defeat the underlying purpose of
objective decision-making based on facts.  It adds that India's interpretation effectively adds language,
such as "categories of information", to the AD Agreement provisions at issue.
7.48 The United States maintains that even if certain portions or categories of information
submitted appear acceptable in isolation, substantial deficiencies may be detected in the information,
which can call into question the reliability of the entire body of information submitted.  The UnitedStates points out that Article 6.8 allows investigating authorities to make preliminary or final
determinations based on facts available.  In the US  view, India ignores this in focussing on categories
of information.
7.49 The United States also notes that paragraph 3 of Annex II provides that if the conditions are
met, the information should be taken into account.  In the US view, India is incorrect in arguing that
this means that the investigating authorities must  use a category  of information that satisfies the four
conditions.  The United States asserts that "should" is not mandatory.  Thus, the United States submitsthat paragraph 3 of Annex II urges  the investigating authorities to take into account (or not disregard
information) information which satisfies the criteria of those provisions, but does not require
investigating authorities to utilise that inform ation in the calculation of the dumping margin.
7.50 Regarding the phrase "provided the interested pa rty has acted to the best of its ability", the
United States recognizes that perfection is not the standard, and that information that "may not be
                                                     
45 First Written Submission of India at para. 87, citing the Appellate Body Report in US - Cotton Yarn ,
at para. 120.WT/DS206/R
Page 21
ideal in all respects" should not be disregarded where the respondent has acted to the best of its
ability.  However, in the US view paragraph 5 of Annex II is not mandatory, as it uses the verb
"should", and recognizes that there will be situa tions in which the investigating authority would be
justified in disregarding information submitted.  In the US view, if a party has failed to act to the best
of its ability, an investigating authority would be justified in rejecting information which is not perfect
in all respects.
7.51 Article 6.8 and paragraph 3 of Annex II of the AD Agreement, provide:
"6.8 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 the facts available.  The provisions of Annex II shall be
observed in the application of this paragraph.
*****
ANNEX II
BEST INFORMATION AVAILABLE IN TERMS OF PARAGRAPH 8 OF
ARTICLE 6
3. 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 atimely fashion, and, where applicable, which is 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, the failure to respond in the preferred medium orcomputer language should not be considered to significantly impede the investigation.
Paragraph 5 of Annex II is also relevant to the issue in dispute.  It provides:
5. Even though the information provided may not be ideal in all respects, this
should not justify the authorities from disregarding it, provided the interested partyhas acted to the best of its ability."
7.52 In examining this matter, we note that, as the Appellate Body has repeatedly stated, panels are
to consider the interpretation of the WTO Agr eements, including the AD Agreement, in accordance
with the principles set out in the Vienna Convention on the Law of Treaties (the "Vienna
Convention").  Those principles establish that a pa nel is to look to the ordinary meaning of the
provision in question, in its context, and in light of its object and purpose.  Finally, we may consider
the preparatory work (the negotiating history) of the provision, should this be necessary or appropriate
in light of the conclusions reached based on the text of the provision.  If we conclude that the
challenged US determination is based on an interpretation that is "permissible" under the customary
rules of interpretation of international law, we s hould allow that interpretation to stand, pursuant to
Article 17.6(ii) of the AD Agreement.
46
                                                     
46 The same principles apply to our consideration of  India's challenge to the US statute on its face,
discussed below.WT/DS206/R
Page 22
7.53 Turning first to the text of Article 6.8, we note that the word "information" is defined as
"knowledge or facts communicated about a particular subject, event, etc."47  "Necessary" is defined as
"That cannot be dispensed with or done without; requisite, essential, needful".48  Thus, Article 6.8
provides that if essential knowledge or facts, which cannot be done without, are not provided to the
investigating authority by an interested party, the investigating authority may make preliminary or
final determinations on the basis of facts available.  However, this conclusion does not significantlyelucidate the question of the degree to which facts available may be used in a case in which some
necessary information is submitted, and some is not.
7.54 On this point, the parties have divergent views.  The United States argues that if any
necessary information is not provided, the investigating authority may conclude that necessary
information has not been provided in terms of Article 6.8, and may instead base its entire
determination on facts available. India, on the other hand, considers that the "necessary" information
can be considered to fall into discrete categories or sets, grouped around the basic elements of theanti-dumping calculation – information relating to the normal value and export price calculations, and
information regarding cost of production and constructed normal value in some cases.  India appears
to consider these categories as essentially discrete  elements of an anti-dumping investigation.  India
considers that a failure to provide information regarding one element of the overall determination
does not justify resort to facts available for all aspects of the calculation of the dumping margin.
49
7.55 In our view, the failure to provide necessary information, that is information which is
requested by the investigating authority and which is relevant to the determination to be made,50
triggers the authority granted by Article 6.8 to make determinations on the basis of facts available.The provisions of Annex II, which set out conditions on the use of facts available, inform the question
of whether necessary information has not been provided, by establishing considerations for wheninformation submitted must be used by the investig ating authority.  Thus, the provisions of Annex II
inform an investigating authority's evaluation whether necessary information, in the sense of
Article 6.8, has been provided, and whether resort to facts available with respect to that element of
information is justified.  If, after considering the provisions of Annex II, and in particular the criteria
of paragraph 3, the conclusion is that information provided satisfies the conditions therein, theinvestigating authority must use that information in  its determinations, and may not resort to facts
available with respect to that element of inform ation.  That is, the investigating authority may not
conclude, with respect to that information, that  "necessary information" has not been provided.
7.56 We note that there is disagreement between the parties as to whether the provisions of Annex
II, which are largely phrased in the conditional tense ("should") are mandatory.  We consider thatArticle 6.8 itself answers this question.  Article 6.8. explicitly provides that "The provisions of Annex
II shall  be observed in the application of this paragraph" (emphasis added).  In our view, the use of
the word "shall" in this context establishes that the provisions of Annex II are mandatory.  Indeed, this
would seem a necessary conclusion.  The alternative reading would mean that investigating
authorities are required ("shall") to apply provisions which are not themselves required, an
                                                     
47 New Shorter Oxford English Dictionary, Clarendon Press, Oxford, 1993.
48 New Shorter Oxford English Dictionary, Clarendon Press, Oxford, 1993.
49 India stated, in response to a question from the Panel, that "barring unusual circumstances, the four
so-called "essential components" are indeed separate and distinct categories of information" Answers of India toQuestions of the Panel - First Meeting, question 28, at para. 50.
50 We are not dealing here with the possibility that the investigating authority might request irrelevant
information.  Obviously, such information would not be "necessary" in the sense of Article 6.8.  However, thereis no suggestion in this case that the investigating authority requested information beyond that which was
necessary to the determinations it had to make.WT/DS206/R
Page 23
interpretation that makes no sense.51  Moreover, the provisions of Annex II, while worded in the
conditional, give specific guidance to investigatin g authorities regarding certain aspects of their
determinations which, without more, clearly establish the operational requirements.  Thus, we
consider that that the provisions of Annex II are mandatory, not because of the wording of those
provisions themselves, but because of the obligation to observe them set out in Article 6.8.52
7.57 The specific provisions of Annex II with which we are concerned in this dispute are
paragraphs 3 and 5.53  Paragraph 3 states that all information provided that satisfies the criteria set out
in that paragraph is to be taken into account when determinations are made. We consider in this
regard that the use of the final connector "and" in the list of criteria makes it clear to us that an
investigating authority, when making determinations, is only required to take into account
information which satisfies all of the applicable criteria of paragraph 3.54   In order to assess the
limitations this provision puts on the right of an investigating authority to reject information submitted
and instead resort to facts available,55 we look to the ordinary meaning of the text, in its context and in
light of its object and purpose.  Paragraph 3 starts with the phrase "all information".  "All" means "the
whole amount, quantity, extent or compass of" and "the entire number of, the individual constituents
of, without exception…every".56  To "take into account" is defined as "take into consideration,
notice".57  Thus, a straightforward reading of paragraph 3 leads to the understanding that it requires
that every element of information submitted which satisfies the criteria set out therein must beconsidered by the investigating authority when ma king its determinations.  If information must be
considered under paragraph 3, an investigating authority may not conclude, with respect to that
information, that necessary information has not been provided, in the sense of Article 6.8.
Consequently, we do not accept the United States' position that "information" in Article 6.8 means all
information, such that Members have an unlimited right to reject all information submitted in a casewhere some necessary information is not provided.
                                                     
51 We note that the Panel in, Argentina – Definitive Anti-Dumping Measures on Imports of Ceramic
Floor Tiles from Italy ("Argentina – Ceramic Tiles "), WT/DS189/R, adopted 5 November 2001, treated the
provisions of Annex II as obligations in its analysis and findings.
52 We note in this regard the Appellate Body's statement that "Article 6.8 requires that the provisions of
Annex II of the Anti-Dumping Agreement  be observed in the use of facts available." Appellate Body Report, US
– Hot-Rolled Steel , at para 78.  The Appellate Body appears to have treated the provisions of Annex II which are
phrased in the conditional as mandatory, but did not specifically address the question, which was not raisedbefore it, or indeed before the Hot-Rolled Steel  Panel.
53 Paragraph 1 of Annex II principally concerns notice to interested parties of what information will be
required, that is, the necessary information, and the potentia l for resort to facts availabl e if the information is not
supplied.  Paragraph 2 authorizes the investigating authority to request information in a particular medium or
computer language, but establishes limits on the right to insist upon provision of information in the requested
format.  Paragraph 4 is in a sense the obverse of pa ragraph 2, allowing the au thority to decline to accept
information in a medium that cannot be processed.  Para graph 6 requires the investigating authority to inform a
party if submitted information is not accepted and provide an opportunity for further explanations andultimately, if the explanations are rejected, requires that an explanation of the rejection be given in any
published determinations.  Finally, paragraph 7 sets out rules and conditions for the use of particular information
as facts available, including the possibility of less favorable results for a party in the event of non-cooperation.
54 The Appellate Body has stated explicitly that:
"according to paragraph 3 of Annex II, investigating authorities are directed to useinformation if three, and, in some circumstances, four, conditions are satisfied.  In our view, itfollows that if these conditions are met, investigating authorities are  not  entitled to reject
information submitted, when making a determination."
Appellate Body Report, US – Hot-Rolled Steel , at para 81.
55 We note in this context the statement of the Appellate Body that paragraph 3 of Annex II bears on
the issue of "when the investigating authorities are entitled to reject  information submitted by interested
parties." Appellate Body Report, US – Hot-Rolled Steel , at para 80.
56 New Shorter Oxford English Dictionary, Clarendon Press, Oxford, 1993.
57 New Shorter Oxford English Dictionary, Clarendon Press, Oxford, 1993.WT/DS206/R
Page 24
7.58 Of course, we do not mean to suggest that the investigating authority must, in every case,
scrutinize each item of information submitted in order explicitly to determine whether it satisfies the
criteria of paragraph 3 of Annex II before it uses it in its determination.  Clearly, if the authority is
satisfied with the information submitted, and concludes that an interested party has fully complied
with the requests for information, there is no need to undertake any separate analysis under
paragraph 3 of Annex II.  However, to the extent the authority is not satisfied with the informationsubmitted, it must examine those elements of information with which it is not satisfied, in light of the
criteria of paragraph 3.
7.59 That said, however, we also do not accept India's view that each category of information
submitted must be judged separately. India recognizes that there may be cases where a piece of
information submitted which otherwise satisfies paragraph 3 is so minor an element of the
information necessary to make determinations that it cannot be used in the investigation without
undue difficulties, and that it is possible that so much of the information submitted in a particular"category" fails to satisfy the criteria of paragraph 3, for instance, cannot be verified, that the entire
category of information cannot be used without undue difficulty.
58
7.60 We consider in addition that the various elements, or categories, of information necessary to
an anti-dumping determination are often interconnected, and a failure to provide certain information
may have ramifications beyond the category into whic h it falls.  For instance, a failure to provide cost
of production information would leave the investigating authority unable to determine whether sales
were in the ordinary course of trade, and further unable to calculate a constructed normal value.  Thus,
a failure to provide cost of production information might justify resort to facts available with respect
to elements of the determination beyond just the calculation of cost of production.  Moreover, without
considering any particular "categories" of information, it seems clear to us that if certain informationis not submitted, and facts available are used instead, this may affect the relative ease or difficulty of
using the information that has been submitted and which might, in isolation, satisfy the requirements
of paragraph 3 of Annex II.  However, to accept that view does not necessarily require the further
conclusion, espoused by the United States, that in a case in which any "essential" element of
requested information is not provided in a timely fashion, the investigating authority may disregard allthe information submitted and base its determination exclusively on facts available.  To conclude
otherwise would fly in the face of one of the fundamental goals of the AD Agreement as a whole, that
of ensuring that objective determinations are made, based to the extent possible on facts.
59
7.61 The answer, in our opinion, lies between the two extremes of the positions taken by the
parties.  That is, when there is a question whether necessary information has been submitted, theinvestigating authority must, with reference to the guidance given in paragraph 3 of Annex II,
consider whether the information that has been submitted satisfies the criteria therein.  If yes, it must
be taken into account in making determinations.  If not, it may be rejected and facts available used
instead.  In a case in which some information is rejected and facts available used instead, the further
question may arise whether the fact that some information submitted was rejected has consequences
for the remainder of the information submitted.  In particular, the investigating authority may need to
consider whether the fact that some information is  rejected results in other information failing to
satisfy the criteria of paragraph 3. In this context, we consider to be critical the question of whether
information which itself may satisfy the criteria of paragraph 3 can be used without undue difficulties
in light of its relationship to rejected information.
60
7.62 In sum, we consider that paragraph 3 of Annex II establishes specific criteria which an
investigating authority must apply before rejectin g information submitted and relying instead on facts
                                                     
58 Answers of India to Questions of the Panel - First Meeting, questions 28 & 29,  at paras. 54 & 60.
59 See Panel Report, US – Hot-Rolled Steel , at para. 7.55.
60 In addition, as discussed below, the explanation of such findings is vital.WT/DS206/R
Page 25
available.  Clearly, with respect to the specific item of information in question, if it fails to satisfy the
criteria of paragraph 3, it may be rejected and resort may be had to facts available.  This is not in
dispute, and is the basis of the United States' not-infrequent resort to "partial facts available" or "gap-
filling".61  The more difficult question, presented in this dispute, is whether a conclusion that some
information submitted fails to satisfy the criteria of paragraph 3, and thus may be rejected, can in any
case justify a decision to reject other information submitted which, if considered in isolation, wouldsatisfy the criteria of paragraph 3.  We consider that the answer to this question is yes, in some cases,
but that the result in any given case will depend on the specific facts and circumstances of the
investigation at hand.
7.63 Finally, we note that India has argued that even if information submitted fails to satisfy the
criteria of paragraph 3 to some degree, if the party submitting that information acted to the best of its
ability, the investigating authority is required under paragraph 5 of Annex II to make "more concerted
efforts" to use it.
62
7.64 Paragraph 5 establishes that information provided which is not ideal is not to be disregarded if
the party submitting it has acted to the best of its ability.  As the Appellate Body found in US – Hot-
Rolled Steel , the degree of effort demanded of interested parties by this provision is significant.63  We
are somewhat troubled by the implications of India's view of this provision, which might be
understood to require that information which fails to satisfy the criteria of paragraph 3, and thereforeneed not be taken into account when determinations are made, must nonetheless "not be disregarded"
if the party submitting it has acted to the best of its ability.  We find it difficult to conclude that an
investigating authority must use information which is, for example, not verifiable, or not submitted in
a timely fashion, or regardless of the difficulties incumbent upon its use, merely because the party
supplying it has acted to the best of its ability.  This would seem to undermine the recognition that theinvestigating authority must be able to complete its investigation and must make determinations based
to the extent possible on facts, the accuracy of which has been established to the authority's
satisfaction.
7.65 However, if we understand paragraph 5 to emphasize the obligation on the investigating
authority to cooperate with interested parties, and particularly to actively make efforts to use
information submitted if the interested party has acted to the best of its ability, we believe that it does
not undo the framework for use of information submitted and resort to facts available set out in the
AD Agreement overall.  Similarly, paragraph 5 can be understood to highlight that information that
satisfies the requirements of paragraph 3, but which is not perfect, must nonetheless not be
disregarded.
7.66 Applying these principles to this case, we consider that merely because USDOC concluded
that certain of the information submitted by SAIL could be disregarded does not, without more,
establish that USDOC was entitled to reject the US sales price information.
7.67 As discussed above, it may indeed be the case that a failure to provide one element of
information undermines the usability of information that is submitted, making it unduly difficult to
use the information submitted in making determinations.  Critical to such a determination is the
explanation by the investigating authority of its conclusion in this regard. A panel reviewing such a                                                     
61 See, e.g. Notice of Final Determination of Sales at Less Than Fair Value: Hot-Rolled Flat-Rolled
Carbon-Quality Steel Products From Japan , 64 Fed. Reg. 24329, 24370 (6 May 1999); Stainless Steel Bar
From India: Final Results of Anti-dumping Duty Administrative Review and New Shipper Review and PartialRescission of Administrative Review , 65 Fed. Reg. 48965, 48966 (10 August 2000) (Exhibit India-35); Notice of
Final Determination of Sales at Le ss Than Fair Value: Hot-Rolled Flat-R olled Carbon-Quality Steel Products
From the Russian Federation , 64 Fed. Reg. 38626, 38629-30 (19 July 1999) (Exhibit India-35).
62 First Written Submission of India at para. 52.
63 Appellate Body Report, US – Hot-Rolled Steel , at para. 102.WT/DS206/R
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decision must be able to conclude that the investigating authority considered the relationship between
the missing information and the information submitted, and concluded that in light of that
relationship, the fact that one element of information was not submitted justified the conclusion that
information submitted did not satisfy the criteria of paragraph 3 of Annex II.64  There is no indication
on the face of USDOC's determination, or the other information from the record submitted to us, to
indicate how the problems with other data submitted, which led to its rejection, affected the US salesprice information such that it failed to satisfy the criteria of paragraph 3.
7.68 Before us, United States asserts that the US sales price information itself could not be verified
or used without undue difficulties because part of the necessary data requested, concerning cost
information for the product sold in the United states, was not submitted.  The United States argues
that in the absence of such information it woul d not be possible to ensure "apples to apples"
comparisons in determining a dumping margin or to make adjustments for physical differences
between the product sold in the home market and that sold for export to the United States.  As aconsequence, the United States argues that it would be unduly difficult to use the submitted US price
information
7.69 It appears from the record information submitted that this aspect of cost information for the
product sold in the United States is indeed missing from the questionnaire response submitted by
SAIL.  However, there is no indication at any point in the USDOC's determination, or in the otherrecord information submitted to us, to suggest that th e lack of this cost information was considered in
assessing whether the US sales price information could be verified or used in the investigation without
undue difficulty.  The lack of cost of manufacture information for exported product is not even
mentioned in the verification report, the determination of failure of verification, or in the final
determination, as a problem with respec t to the US sales price information.
65  Indeed, this appears to
us to be a post hoc  explanation, perhaps triggered by our own questions to the parties.  Even assuming
we were persuaded by the United States' argument s before us that USDOC could have made the
decision posited, there is nothing in the record to indicate to us that it did make such a decision in this
case.
7.70 The United States also argues that the US sales price information was properly rejected by
USDOC because that information itself failed to satisfy the criteria of paragraph 3.  Again, we do not
see any evidence in the determination or in the reco rd information submitted to us to indicate that
such a determination was made by USDOC at the time.
7.71 The first criterion which must be satisfied for information to be taken into account under
paragraph 3 is that the information is "verifiable".  "Verifiable" is defined as "able to be verified orproved to be true."
66  To us, and the parties do not disagree, it seems clear that this entails that the
accuracy and reliability of the information can be assessed by an objective process of examination.67
                                                     
64 As there is no claim in this dispute regarding th e adequacy of public notice under Article 12, we do
not address that question.  Rather, we are concerned here with the ability of a panel to discern the facts and
rationale underlying the investigating authority's determination, in order to assess its consistency with the
relevant obligations.
65 It is undisputed that the cost information as a whole was problematic, but there is no indication of
any direct linkage to the US sales price information.
66 New Shorter Oxford English Dictionary, Clarendon Press, Oxford, 1993.
67 While the parties have addressed this concept in terms of the "on the spot" verification process
provided for in Article 6.7 and Annex I of the Agreement, we note that such verification is not in fact requiredby the AD Agreement.  Thus, the use of the term in paragraph 3 of Annex II is somewhat unclear.  However,Article 6.6 establishes a general requirement that, unless they are proceeding under Article 6.8 by relying onfacts available, the authorities shall "satisfy themselves  as to the accuracy supplied by interested parties upon
which their findings are based".  "Verify" is defined as "ascertain or test the accuracy or correctness of, esp. by
examination of by comparison of data etc; check or establish by investigation". New Shorter Oxford EnglishWT/DS206/R
Page 27
Certainly, the US sales price information was capable of being verified.  Indeed, the Verification
Report itself suggests that, for the most part, the information as submitted was verified.68  In this
respect, we recall that, in line with paragraph 5 of Annex II, perfection is not the standard.  Even
USDOC indicated that the errors in the information were susceptible of correction.  It was only "when
combined with other pervasive flaws in SAIL's data", that USDOC considered these errors significant.
Even then, the conclusion drawn was that "these errors  support our conclusion that SAIL's data on the
whole is unreliable.".  USDOC considered that the fact that limited errors were found in the US sales
price information did not indicate "underlying reliability of the SAIL's reporting, particularly when
viewed in context the widespread problems encountered with all the other data in the questionnaire
response."69
7.72 The second criterion of paragraph 3 requires that the information be "appropriately submitted
so that it can be used in the investigation without undue difficulties."  In our view, "appropriately" in
this context has the sense of "suitable for, proper, fitting".70  That is, the information is suitable for the
use of the investigating authority in terms of its form, is submitted to the correct authorities, etc.
More difficult is the requirement that the information can be "used without undue difficulties".
"Undue" is defined as "going beyond what is warranted or natural, excessive, disproportionate".71
Thus, "undue difficulties" are difficulties beyond what is otherwise the norm in an anti-dumpinginvestigation.  This recognizes that difficulties  in using the information submitted in an anti-dumping
investigation are not, in fact, unusual.  This conclusion is hardly surprising, given that enterprises that
become interested parties in an anti-dumping inve stigation and are asked to provide information are
not likely to maintain their internal books and reco rds in exactly the format and with precisely the
items of information that are eventually requested in the course of an anti-dumping investigation.
Thus, it is frequently necessary for parties submitting information to collect and organize raw data in aform that responds to the information request of the investigating authorities.  Similarly, it is
frequently necessary for the investigating authority to  make adjustments of its own in order to be able
to take into account information that does not fully comply with its request.  This is part of the
obligation on both sides to cooperate, recognized by the Appellate Body in the US  – Hot-Rolled Steel
case.
7.73 In discussing the obligation on interested part ies to cooperate in the information gathering
aspect of the investigation, the Appellate Body in US – Hot-Rolled Steel , noted that cooperation is a
process, commenting that paragraphs 2 and 5 of  Annex II of the AD Agreement reflect "a careful
balance between the interest of investigating authorities and exporters.  In order to complete their
investigations, investigating authorities are entitled to expect a very significant degree of effort – tothe "best of their abilities" – from investigated exporters"  However, the Appellate Body further
commented that "cooperation is indeed a two-way process involving joint effort."
72  Thus, it seems
clear to us that investigating authorities must undertake a degree of effort – some degree of
"difficulty" – if needed to be able to use informatio n submitted by an interested party.  However, the
investigating authorities are not required to undertake extreme measures – that is "undue" difficulties -
in order to use information submitted, any more than  the interested parties are required to undertake
extreme measures to provide requested information.
                                                                                                                                                                    
Dictionary, Clarendon Press, Oxford, 1993.  Thus, even in the absence of on-the-spot verification, the
authorities are, in a more general sense of assessing the accuracy of information relied upon, required to base
their decisions on information which is "verified".
68 See Exhibit India-13.
69 Determination of Verification Failure, Exhibit India-16, at 5.
70 New Shorter Oxford English Dictionary, Clarendon Press, Oxford, 1993.
71 New Shorter Oxford English Dictionary, Clarendon Press, Oxford, 1993.
72 Appellate Body Report, US – Hot-Rolled Steel , at paras. 102 and 104.WT/DS206/R
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7.74 In our view, it is not possible to determine in the abstract what "undue difficulties" might
attach to an effort to use information submitted.  We consider the question of whether information
submitted can be used in the investigation "without undue difficulties" is a highly fact-specific issue.
Thus, we consider that it is imperative that the investigating authority explain, as required by
paragraph 6 of Annex II, the basis of a conclusion that information which is verifiable and timely
submitted cannot be used in the investigation without undue difficulties.
7.75 In this context, we note that there is no explanation on the face of the USDOC determination
to suggest that it was even considered, much less decided, whether the US sales price information
could be used without undue difficulties to determine an export price.  In this regard, India has
submitted the affidavits of Mr. Albert Hayes in support of its view that the information submitted
could have been corrected and sorted so as to make possible a determination of export price and allow
an appropriate comparison of export price so determined, and normal value based on facts available
(i.e., the information in the application), without undue difficulty.  It is undisputed that the US sales
price information submitted by SAIL was not ideal.  Some suggestions regarding how to correct the
information submitted and alternative possibilities for calculating the dumping margin were proposed
to USDOC, although not in precisely the manner suggested here. 73  The United States now argues that
it would have required undue efforts to make the necessary corrections to the US sales price
information submitted and even then there might not have been transactions that could serve as anappropriate match to the normal value information that was used. However, USDOC made absolutely
no effort to try to use that information in making its determination of dumping margin.  There is
nothing in the record brought to our attention to suggest that USDOC even considered such a course
of action.  In the absence of any decision in this regard by USDOC, we consider it would be
inappropriate for us to make our own judgement whether the methodologies proposed by India could
have enabled USDOC to use the information submitted without undue difficulties in this
investigation.
7.76 The third criterion of paragraph 3 requires that the information be supplied in a timely
fashion.  This requirement relates back to Article 6.8, which establishes that an investigating authority
may resort to facts available if information is not provided "within a reasonable period".
74  That is, the
"within a reasonable period" requirement of Article 6.8 and the "in a timely fashion" requirement of
paragraph 3 of Annex II in our view are essentially the same.  As a previous panel and the Appellate
Body have recognized, anti-dumping investigations are subject to an overall time-limit, which
necessitates that the investigating authority cannot  be expected to continue to accept information
indefinitely.  What is a "within a reasonable period" or "in a timely fashion" will depend in each caseon the facts and circumstances of that case.  It is clear, however, that investigating authorities may not
arbitrarily stick to pre-established deadlines as the basis of rejecting information as untimely.
75  There
is no indication in the USDOC determination that the US sales price information was not submitted in
a timely fashion.
7.77 The final criterion set out in paragraph 3 is that, where applicable, the information must be
supplied in a medium or computer language requested by the authorities. This provision seems
straightforward, and as it not in dispute in this case, we will not consider it further.  We do note,however, that there is no reference in the final determination, or in other record evidence submitted to
us, to suggest that USDOC concluded that, because of the technical problems with SAIL's electronic
database of US sales price information, the informati on submitted failed to comply with this criterion
of paragraph 3.
                                                     
73 First Written Submission of the United States at para. 170 and fn. 160.
74 See Appellate Body Report, US – Hot-Rolled Steel , at para. 83.
75 Panel Report, US – Hot-Rolled Steel , at paras. 7.54-7.55, Appellate Body Report, US – Hot-Rolled
Steel , at. paras. 73-74.WT/DS206/R
Page 29
7.78 In our view, USDOC's final determination clearly demonstrates that certain of the information
submitted by SAIL was found to be unverifiable, or not timely submitted, or to have other flaws
which made it unduly difficult to use.  However, no such conclusions are set forth with respect to the
US sales price information.  Indeed, throughout the investigation, it appears that the principal
problems were with the information concerning SAIL's home market transactions and cost of
production.  The references to problems with respect to the US sales price information, to the extent
they are mentioned, are treated as minor.  Thus, it seems clear to us that USDOC did not in fact reject
the US sales information based on the application of the criteria of paragraph 3 to that information,
but rather on the basis of problems associated with other information submitted.
7.79 Thus, on the basis of the facts and explanations on the record before us, we consider that
USDOC's decision rejecting the US sales price information submitted by SAIL lacked a valid basis
under paragraph 3 of Annex II of the AD Agreemen t..  Therefore, we conclude that USDOC acted
inconsistently with Article 6.8 and paragraph 3 of  Annex II of the AD Agreement in concluding, with
respect to US sales price information, that necessary information was not provided and relying
entirely on facts available in determining the dumping margin applicable to SAIL.
7.80 Having concluded that USDOC's decision to rely entirely on facts available was inconsistent
with its obligations under the AD Agreement, we do not consider it necessary to address India's
alternative claims.
3. Whether Sections 776(a), 782(d) and 782(e) of the Tariff Act of 1930, as amended, are
inconsistent on their face with Article 6.8 and Annex II of the AD Agreement
7.81 The next question we must consider is whether US law governing resort to facts available is
on its face inconsistent with the requirements of the AD Agreement as we understand them.  In this
respect, India argues that US law requires resort to facts available in circumstances in whichArticle 6.8 and paragraph 3 of Annex II do not permit information submitted to be disregarded and
determinations based on facts available instead.  The United States, focusing on the use of the word
"may" in the statue, maintains that US law does not oblige USDOC to act inconsistently with the
United States' obligation under the AD Agreement.
7.82 India argues that the statutory provisions governing the USDOC's consideration of facts
available, specifically sections 776(a), 782(d) and 782(e) of the Tariff Act of 1930, as amended, are
inconsistent with the AD Agreement on their face.  India asserts that sections 776(a) and 782(e) are
mandatory provisions that when read together mandate a violation of GATT/WTO obligations and
prohibit WTO-consistent treatment of information submitted during an AD investigation.
7.83 India asserts that Sections 782(e) and 776(a), in combination, require  USDOC to reject
verified, timely submitted information that can be used without undue difficulties, unless , pursuant to
section 782(e)(3), USDOC finds that the information is not so incomplete that it cannot serve as a
reliable basis for reaching the applicable determination, and, pursuant to section 782(e)(4), that the
interested party has acted to the best of its ability in providing the information.  India submits that
neither of these latter two conditions is found in  paragraph 3 of Annex II of the AD Agreement.  In
India's view, paragraph 3 of Annex II establishes an exclusive set of conditions for determining
whether information submitted by interested parties may be rejected by investigating authorities.  Ifthose conditions of paragraph 3 of Annex II are satisfied for a particular category or set of
information, then, India argues, that category or set of information must be accepted by the
investigating authority and used in the calculation of the dumping margin.
7.84 India argues that the US statutory provisions impermissibly merge the requirements of
paragraphs 3 and 5 of Annex II by requiring the rejection of a category of information which satisfiesthe criteria of paragraph 3 based on a finding that the respondent has failed to act to the best of itsWT/DS206/R
Page 30
ability in providing some other  information in some other category.  India also criticises Section
782(d), which India asserts mandates the use of facts available if USDOC finds that some other or
supplemental submission is not satisfactory, or if the submission was not made by the deadline set for
it, and in addition permits USDOC to disregard all or part of the original response.
7.85 The United States argues that India's claims are based on a misunderstanding of the relevant
provisions of US law.  The United States argues that, as interpreted by the USDOC and the US courts,section 776(a) only requires the use of facts available in circumstances where it is permissible to do so
under Article 6.8.  The United States further argues that the conditions in section 782(e) do not
expand the extent to which USDOC must, or even ma y, use facts available, beyond what is authorized
by Article 6.8.
7.86 The United States asserts that section 776(a) of the Act does not mandate WTO inconsistent
action because it only requires the use of facts available in circumstances that Article 6.8 permits.
Moreover, the United States asserts that section 782(d) provides discretion to reject informationsubmitted, subject to the consideration of the requirements of section 782(e).  The United States
argues that there is nothing in the latter provisio n that requires the rejection of information provided
by an interested party.  Thus, in the US view, it cannot be viewed as mandating action that would be
inconsistent with Article 6.8 and Annex II.  The United States asserts that the use of the discretionary
"may" throughout the USDOC regulations implementing section 776(a), 782(d), 782(e) of the Actsupports the conclusion that the statutory provisions are not mandatory in nature and thus do not
violate the United States' WTO obligations.
7.87 The United States submits that merely because 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 does not mean that section 782(e)mandates WTO inconsistent action.  The United States maintains that section 782(e) directs the
USDOC to exercise the discretion provided for in pa ragraphs 3 and 5 of  Annex II in a particular way,
and not reject information if it meets the criterion set out in section 782(e).  The United States asserts
that GATT and WTO jurisprudence establish that a statutory provision will only be found to violate
the Member's obligations on its face if the legislation mandates  actions inconsistent with the
Member's obligations or precludes actions that are consistent with those obligations.  The United
States adds that 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.
7.88 Before considering the consistency of US law with the AD Agreement, we consider it
important to address an underlying question.  A number of Panels have held that a municipal statutewill be found to be inconsistent on its face with a Member’s WTO obligations only if it is mandatory
and requires WTO inconsistent action or prohibits WTO consistent action.
76  This was consistently the
finding of Panels under the GATT 1947, and has b een followed by WTO panels.  The Appellate Body
has recognized the distinction, but has not specifically ruled that it is determinative in consideration of
whether a statute is inconsistent with relevant WTO obligations.  However, it did recently state, in
United States – Anti-Dumping Act of 1916 :
"88. As indicated above, 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
                                                     
76 For example, the Panel, in US – Section 301 Trade Act , recognized the "classical test in the pre-
existing jurisprudence that only legislation mandating a WTO inconsistency or precluding WTO consistency,
could, as such, violate WTO provisions". Panel Report, US – Section 301 Trade Act , at para. 7.54WT/DS206/R
Page 31
obligations.  The practice of GATT panels was summed up in United States – Tobacco  
as follows:
… panels had consistently ruled that legislation which mandated
action inconsistent with the General Agreement could be challenged as
such, whereas legislation which merely gave the discretion to the  executive
authority  of a contracting party to act inconsistently with the General
Agreement could not be challenged as  such;  only the actual application of
such legislation inconsistent with the General Agreement could be subject
to challenge.  (emphasis added)
89. Thus, the relevant discretion, for purposes of distinguishing between mandatory
and discretionary legislation, is a discretion vested in the  executive  branch  of
government".  (footnotes omitted)77
7.89 We therefore consider that the question before us is whether the US statutory provisions in
question require  USDOC to take action which contravenes the US obligations under the WTO
AD Agreement.  Indeed, the parties do not disagree with this formulation of the issue.78
7.90 In this regard, we keep in mind that it is a well accepted principle of international law that for
the purposes of international adjudication national law is to be considered as a fact.79  Our analysis of
the consistency of the US statute with the AD Agreement takes into account, therefore, the principles
of statutory interpretation applied by the administering agency and judicial authorities of the United
States.
7.91 The provisions of US law challe nged by India are set out below:
"Section 776 - DETERMINATIONS ON THE BASIS OF THE FACTS
AVAILABLE.
(a) 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 or the Commission under this title,
(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),
                                                     
77 Appellate Body Report, US – 1916 Act , at paras. 88 - 89.
78 First Written Submission of India at para. 141; First Written Submission of the United States at
paras. 116-118.
79 Certain German Interests in Polish Upper Silesia , 1926, PCIJ Rep., Series A, No.  7, p.19; See also
Panel Report, US – Section 301 Trade Act , at para. 7.18.WT/DS206/R
Page 32
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."
Subsections (b) and (c) of section 776, which are not at issue in this dispute, provide respectively for
the application of adverse inferences, and for the corroboration of secondary information.
"Section 782 - CONDUCT OF INVESTIGATIONS AND ADMINISTRATIVE
REVIEWS.
(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 authority or the Commission (as
the case may be) 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-limitsestablished for the completion of the investigations or reviews under this title.  If that
person submits further information in response to such deficiency and either -
(1) the administering authority or the Commission (as the case
may be) finds that such response is not satisfactory, or
(2) such response is not submitted within the applicable time
limits,
then the administering authority or the Commission (as the case may
be) may, subject to subsection (e), disregard all or part of the original
and subsequent responses.
(e) USE OF CERTAIN INFORMATION.  - In reaching a determination under
Section 703, 705, 733, 735, 751, or 753 [preliminary and final determinations,
administrative review of determinations, and special rules for injury investigations for
certain section 303 countervailing duty orders and investigations] the administering
authority and the Commission shall not decline to consider information that is
submitted by an interested party and is necessary to the determination but does notmeet 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,
(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."WT/DS206/R
Page 33
Subsections (a), (b), (c), (f), (g), (h), and (i) of Section 782 are not at issue in this dispute.  Those
provisions govern the treatment of voluntary responses, certification of submissions, difficulties in
meeting requirements, non-acceptance of submissions, public comment on information, and
termination of investigation for lack of interest, respectively.
7.92 In resolving the issue of the consistency of the above provisions with the requirements of the
AD Agreement, we consider whether they require resort to facts available in circumstances other than
the circumstances in which Article 6.8 and paragraph 3 of Annex II permit resort to facts available.  In
this regard, we must consider whether, as India asserts, USDOC is required  to reject information that
is provided, consistent with Article 6.8 and paragraph 3 of Annex II, because other necessary
information is not provided.  An important aspect of our evaluation is the fact that India itself
acknowledges that the relevant US statutory provisions could  be interpreted to allow consideration of
"categories" of information submitted by a party in a situation where other information submitted bythat party is rejected and facts available are used instead.
80  Indeed, there seems to be no dispute that
US law allows for use of "partial" facts available.81  India argues, however, that USDOC and the US
courts have consistently interpreted the statutory provisions to require resort to total facts available in
circumstances where India considers that, under paragraph 3 of Annex II, the information submitted
must be accepted, and thus resort to facts available is precluded.
7.93 A straightforward reading of the US statutory provisions at issue leads us to conclude that US
law is not mandatory in the sense that India posits.  Our reading of US law, in light of the decisions of
USDOC and the US courts that have been submitted to us, leads us to conclude that while US law
permits  a decision on the application of facts available that is inconsistent with the United States'
obligations under Article 6.8 and paragraph 3 of Annex II of the AD Agreement, it does not require
such a decision in any case.82  Therefore we consider that US law is not inconsistent on its face with
Article 6.8 and paragraph 3 of Annex II of the AD Agreement.
7.94 Section 776(a) of the US statute requires USDOC to resort to facts available "subject to
section 782(d)" in certain circumstances.  Those circumstances track the conditions for resort to facts
available set out in Article 6.8 and Annex II –indeed, India does not appear to consider otherwise, as it
does not argue that section 776(a) mandates inconsistent action standing alone.  Thus, section 776(a)
of the statute does not requires USDOC to resort to facts available in a manner inconsistent with
Article 6.8.
7.95 India argues, however, that when section 776(a) is read in combination with sections 782(d)
and (e), the result is to require USDOC to reject information in an manner inconsistent withparagraph 3, because the statute requires criteria additional to those in paragraph 3 to be satisfied
before information can be considered by USDOC.  Looking at section 782(d), we note first that it
provides that, in certain circumstances, the USDOC may resort to facts available.  Thus, on its face,
this provision is discretionary, and does not require the US authorities to reject information and resort
to facts available in any circumstances, and certainly not in a manner inconsistent with Article 6.8.
Finally, section 782(e) requires the US authorities to consider information, submitted by a party, that
might otherwise be rejected under section 776(a), if the conditions in section 782(e) are satisfied with
                                                     
80 First Written Submission of India at para 140.
81 USDOC frequently relies on facts available with respect to some element of information that is not
submitted by a party.  See, e.g., cases cited at note 61.  For instance, in the investigation underlying US - Hot-
Rolled Steel , the missing information was a conversion fact or necessary to allow calculation of dumping
margins on a consistent weight basis.  The failure of some parties to submit such a conversion factor ledUSDOC to rely on facts available only with respect to the calculation of a dumping margin for those salesaffected by the conversion factor – for other aspects of the calculation, the information actually submitted wasused.
82 Indeed, we have found above that the USDOC decision in this case was in fact inconsistent with the
requirements of Article 6.8 and Annex II.WT/DS206/R
Page 34
respect to that information.  Contrary to India's argument, we do not understand this provision to
require the US authorities to reject information that does not satisfy the conditions of section 782(e).
Rather, we understand section 782(e) to limit  the US authorities' discretion to reject information
under section 782(d).  That is, our reading of these provisions, taken together, is that if information
does not satisfy the conditions of section 782(e), then the US authorities may, but are not required
to, disregard that information under section 782(d).  Thus, the issue is not one of the US law requiring
action inconsistent with the AD Agreement, but whet her the application of that law in a particular
case results in a decision inconsistent with the AD Agreement.  A decision in a particular case to
exercise the discretion afforded by the statute and disregard information, basing determinations
instead on facts available, may, or may not, be consistent with Article 6.8 of the AD Agreement.
7.96 India however points to US practice as demonstrating that the US statute mandates decisions
by the US authorities on whether to rely on facts available that are inconsistent with Article 6.8.  India
notes that USDOC decisions applying "total facts available" state that US law "requires" that result,and that the USCIT has affirmed such decisions.  However, our review of the cases submitted by both
parties on this point indicates that US "practice" is  not determinative, or even particularly useful, in
assisting our understanding of the requirements of US law.  The USDOC has certainly in a number of
cases resorted to "total facts available", stating that it is "required" to do so under US law.  However,
it appears to us that these decisions reflect the exercise of the discretion afforded the US authorities bysection 782(d) of the statute.  That is, in some cases, USDOC has concluded that the information
submitted does not satisfy the criteria of section 782(e), and rejected it, while in others it has
concluded that the information submitted met the criteria of section 782(e), and used it in making its
determination.  It is true that in no case cited to us has USDOC exercised the discretion afforded by
section 782(d) to consider information that fails to satisfy the criteria of section 782(e).  That USDOChas not done so does not alter our the conclusion that the terms of the statute itself authorize it to do
so, by using the word "may" in section 782(d).  It merely indicates that USDOC has not chosen to
exercise the full range of its discretion.
7.97 Similarly, the fact the US courts have on numerous occasions (including on review of the
USDOC decision challenged here) affirmed the decision of the USDOC to resort to facts available asbased on a "reasonable construction of the statute" and "supported by substantial evidence" in our
view reflects the degree of deference afforded US DOC under the standard of review applicable in US
judicial review of determinations in anti-dumping investigations.  Indeed, India notes that "The result
of the litigation was largely dictated by the standard of review imposed by U.S. law on CIT reviews of
determinations by USDOC".
83  Thus, it appears to us the US courts have approved, as "reasonable"
under the governing statute,  USDOC's decisions not exercise the full range of its discretion to accept
information submitted by parties.  We do not read these cases, however, as concluding that US law
requires USDOC to reject information in circumstances where it might, in the exercise of the full
range of its discretion, have decided to accept information.  That is, while the US courts have
interpreted US law as permitting USDOC's policy of applying total facts available in certain
circumstances, our view is that they have not conc luded that such an interpretation and the resulting
policy are required.
7.98 In the appeal of USDOC's decision in this case, SAIL raised arguments concerning the
interpretation of US law similar to the arguments made before us concerning Article 6.8 regarding the
requirement to accept "categories" of information which satisfy the criteria of paragraph 3 of
Annex II.  Specifically, SAIL argued in the US Court of International Trade that section 782(e)
required USDOC to consider "categories" of information that satisfied the criteria of that provision.The USCIT found that section 782(e)'s reference to "information submitted"
                                                     
83 First Written Submission of India at para. 43.WT/DS206/R
Page 35
"does not indicate whether the term "information submitted" refers to a specific
category of information, as argued by SAIL, or all the information submitted by the
interested party, as argued by the Department.  Moreover, neither the legislative
history of the statute nor the Statem ent of Administrative Action ("SAA")
accompanying the Uruguay Round Agreements Act further clarifies Congress's intent
regarding "information submitted."   As a result, there is no clear statutory directiveas to when the Department must use partial facts available.  See Heveafil 
Sdn. Bhd v.
United States, 25 CIT ___, ___, slip-op. 01-22 at 9 (Feb. 27 , 2001).  The statute is,
therefore ambiguous on this issue.
As the statute is unclear, the question for the court is whether the agency's
interpretation of the statute is "reasonable in light of the language, policies and
legislative history of the Statute."  Corning Glass Works vs. United States Int'l Trade
Comm'n, 799 F2d 1559, 1565 (Fed. Cir. 1986)(emphasis omitted)(discussing general
statutory interpretation)."84
The Court went on to conclude that USDOC's interpretation of the statute was reasonable.  To us, this
is very different from the Court concluding that  the statute must be interpreted as USDOC did.
7.99 The other cases cited lead us to the same conclusion.  Thus, it seems clear that the USCIT has
approved the USDOC's interpretation of its governing law, and the exercise of its discretion under that
law, in particular cases.  However, in none of the cases cited to us did the USCIT conclude that
USDOC was required under US law to apply total facts available and therefore reject information
submitted.  To us, a decision by the US court approving an action of USDOC as not inconsistent with
US law is significantly different from a decision that US law required the particular action.  In the firstcase, the action approved of under US law may or may not be consistent with US obligations under
the WTO Agreement.  However, even if in a particular case the action is found inconsistent with US
obligations, this does not entail, ipso facto , that the statute on which that action was based is itself
inconsistent with the WTO Agreement in question.
7.100  Based on the foregoing discussion, we conclude that sections 776(a), 782(d), and 782(e), of
the Tariff Act of 1930, as amended, are not, on their face, inconsistent with the United States'
obligations under Articles 6.8 and paragraph 3 of Annex II of the AD Agreement.
4. Whether the final measure is inconsistent with Articles 2.2, 2.4, and 9.3 of the
AD Agreement and Articles VI:1 and VI:2 of GATT 1994
7.101  India argues that because USDOC did not use the US sales price information submitted by
SAIL, the final dumping margin was not based on a fair comparison between SAIL’s export price and
normal value as required by Article 2.4 of the AD Agreement. India goes on to assert that because the
anti-dumping margin was determined incorrectly, in violation of Article 2.4, USDOC also 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.”   Finally, India asserts that 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.
                                                     
84 Steel Authority of India, Ltd. v. United States , Slip Op. 01-60, US Court of International Trade, 22
May 2001, at pp. 10-11, Exhibit India-20.WT/DS206/R
Page 36
7.102  The United States argues that these allegations are dependent upon India succeeding on its
primary argument that USDOC acted inconsistently with the AD Agreement in relying on facts
available.  In the United States view, as India's claims based on Article 6.8 and Annex II of the
AD Agreement are misplaced, accordingly India's claims under Articles 2.2, 2.4, and 9.3 of the
AD Agreement, and Article VI:1 and 2 of GATT 1994 must likewise fail.
7.103  We have concluded above that USDOC acted inco nsistently with Article 6.8 in conjunction
with paragraph 3 of Annex II of the AD Agreement, in rejecting the US sales price information
submitted by SAIL and instead basing its determination entirely on facts available in this case.  We
consider it unnecessary to determine, in addition, whether the circumstances of the violation of
Article 6.8 also constitute a violation of Article 2.4, Article 9.3, and Articles VI:1 and 2 of GATT
1994.   Findings on these claims would serve no useful purpose, as they would neither assist the
Member found to be in violation of its obligations to implement the ruling of the Panel, nor would
they add to the overall understanding of the obligations found to have been violated.  We thereforedecline to rule on India's claims under Articles 2.2, 2.4, and 9.3 of the AD Agreement, and
Article VI:1 and 2 of GATT.
5. Whether USDOC acted inconsistently with Article 15 of the AD Agreement
7.104  India argues that USDOC violated the first sentence of Article 15 of the AD Agreement by
failing to give special regard to India's status as a developing country when considering theapplication of AD duties.  India considers that the nature of the "special regard" will vary from case to
case, but must at least involve some extra consideration of the arguments of respondents in
developing countries.  In this case, India maintains that USDOC should have given "special regard" to
the special situation of SAIL as a developing country respondent when making choices in connection
with calculating the final dumping margin, rather th an treating SAIL the same as any other exporter.
India also maintains that Article 15 requires an investigating authority to articulate in its final
determination how special regard was exercised.
7.105  India asserts that the United States violated the second sentence of Article 15 of the
AD Agreement by failing to explore the possibilities of constructive remedies provided for the
Agreement before applying the duties in this case.  India asserts that SAIL filed a proposal for asuspension agreement (the equivalent in US prac tice of a price undertaking) with USDOC on 30 July
1999, and that USDOC made no written response to this  proposal.  India asserts that USDOC officials
orally stated that they would not discuss a susp ension agreement because the US steel industry and
US Congress would oppose any such agreement.  I ndia maintains that SAIL was treated no differently
than developed country exporters would have been in this regard.
7.106  The United States argues that the first sentence of Article 15 does not impose any specific
legal obligations on developed country Members.  It does not create an obligation to impose
undertakings in lieu of final anti-dumping measures, and it does not require developed country
Members to impose anti-dumping duties less than the margin of dumping.  It also does not create an
obligation to use different calculation methodologies for determining dumping margins depending on
whether the imports at issue originate in a developed country Member or a developing country
Member.
7.107  The United States considers that the second sentence of Article 15 obligates a developed
country Members to explore the possibilities of constructive remedies under the AD Agreement
before applying a final anti-dumping duty.   However, the United States maintains that there is no
obligation to accept  any such remedies in lieu of imposing a final anti-dumping measure.  The United
States also considers that the obligation is only to explore possible remedies  other than the imposition
of a final anti-dumping measure – it does not require the consideration of alternative methodologies
for calculating dumping margins.  Finally, the United States considers that the obligation to exploreWT/DS206/R
Page 37
constructive remedies only arises in a particular case if the application of an AD duty "would affect
the essential interests" of developing country Member at issue.  In the United States' view, the
developing country Member seeking the application of Article 15 must first demonstrate that some
essential interest is implicated in the case that would be affected by the application of an anti-dumping
measure.  The United States asserts that there is no indication that SAIL or India ever suggested that
applying an anti-dumping measure would affect India's essential interests.  In the absence of anydemonstration that India's essential interests would be affected by the application of AD duties, the
USDOC was under no obligation to even explore the possibilities of constructive remedies.
7.108  Notwithstanding its position that the developing country concerned must first demonstrate
that application of an anti-dumping duty would affect its essential interests, the United States
maintains that USDOC did, in fact, explore the possibil ities of constructive remedies in this case.  The
United States refers to the letter from SAIL proposing a suspension agreement, and notes that SAIL
was invited to attend, and did attend, a meeting w ith USDOC officials to discuss the possibility.
According to the United States,
85 while USDOC indicated at that meeting that SAIL's proposal would
be considered, USDOC officials also pointed out that suspension agreements are rare, and require
special circumstances that might not exist in this instance.  The United States considers that this
satisfied the obligation to explore possibilities of constructive remedies, and demonstrates that
USDOC did not have a closed mind on the possibility, but simply rejected the proposed suspensionagreement, as it was entitled to do.  The United States maintains that there is no obligation under
Article 15 to provide a written response to the suggestion of a suspension agreement
7.109  Article 15 provides:
“It is recognized that special regard must be given by developed country Members to
the special situation of developing country Members when considering theapplication of anti-dumping measures under this Agreement.  Possibilities of
constructive remedies provided for by this Agreement shall be explored before
applying anti-dumping duties where they would affect the essential interests of
developing country Members.”
7.110  With respect to the first sentence of Article 15, we note that India acknowledges that "there
are no specific legal requirements for specific action set out in the first sentence of Article 15."
However, India considers that "this mandatory provision does create a general obligation, the precise
parameters of which are to be determined based on the facts and circumstances of the particular
case."
86   We agree with India that there are no specific requirements for specific actions to be taken
set out in the first sentence of Article 15.  In light of this, we cannot agree with India's conclusion thatnonetheless, some general obligation to act exists, but what action will satisfy the obligation can only
be determined based on the facts and circumstances of a particular case.  Members cannot be expected
to comply with an obligation whose parameters are entirely undefined.  In our view, the first sentence
of Article 15 imposes no specific or general obligation on Members to undertake any particular
action.
87
                                                     
85 Exhibit US-21, memorandum to file regarding meeting with SAIL representatives on 31 August
1999.
86 Answers of India to Questions of the Panel - First Meeting, question 25, at para 36.
87 In this regard, we note the decision of the GATT Panel that considered similar arguments in the
EEC-Cotton Yarn  dispute.  That Panel, in considering Artic le 13 of the Tokyo Round Agreement, which is
substantively identical to it successor, Article 15 of the AD Agreement, stated:
"582. … The Panel was of the view that Article 13 should be interpreted as a whole.  In theview of the Panel, assuming arguendo that an obligation was imposed by the first sentence of
Article 13, its wording contained no operative language delineating the extent of the
obligation .  Such language was only to be found in the second sentence of Article 13 wherebyWT/DS206/R
Page 38
7.111  Moreover, India's arguments as to when and to whom this "special regard" must be given
disregard the text of Article 15 itself.  Thus, the suggestion that special regard must be given
throughout the course of the investigation, for instance in deciding whether to apply facts available,
ignores that Article 15 only requires special regard  "when considering the application of anti-dumping
measures under this Agreement".  In our view, the phrase "when considering the application of anti-
dumping measures under this Agreement" refers to the final decision whether to apply a finalmeasure, and not intermediate decisions concerning such matters as investigative procedures and
choices of methodology during the course of the investigation.  Finally, India's argument focuses on
the exporter, arguing that special regard must be given in considering aspects of the investigation
relevant to developing country exporters involved in the case.  However, Article 15 requires that
special regard must be given "to the special situation of developing country Members ".   We do not
read this as referring to the situation of companie s operating in developing countries.  Simply because
a company is operating in a developing country does not mean that it somehow shares the "specialsituation" of the developing country Member.
7.112  With respect to the second sentence of Article 15, we note that it requires exploration of
possibilities of "constructive remedies" provided for by the AD Agreement.
88  The Panel in EC  – Bed
Linen ,89 considered this language in the following terms:
""Remedy" is defined as, inter alia , "a means of counteracting or removing
something undesirable; redress, relief".87 "Constructive" is defined as "tending to
construct or build up something non-material; contributing helpfully, not
destructive".88  The term "constructive remedies" might consequently be understood
as helpful means of counteracting the effect of injurious dumping.  However, the term
as used in Article 15 is limited to constructive remedies "provided for under thisAgreement".  … In our view, Article 15 refers to "remedies" in respect of injurious
dumping."
_______________________
87 The New Shorter Oxford English Dictionary, Clarendon Press, Oxford, 1993.
88 Id.
We agree with this understanding.  Applying it in the circumstances of this case, we consider that the
possibility of applying different choices of methodology is not a "remedy" of any sort under the
AD Agreement.  Consequently, we do not consider that Article 15 imposes any obligation to consider
different choices of methodology for the investigation and calculation of anti-dumping margins in the
case of developing country Members.
7.113  We turn next to the question of what is meant by the requirement to "explore" possibilities of
constructive remedies.  India argues that this obligation entails  a requirement to "articulate the basis
                                                                                                                                                                    
it is stipulated that "possibilities of constructive remedies provided for by this Code shall be
explored before applying anti-dumping duties where they would affect the essential interestsof developing countries"."
Panel Report, European Economic Community – Imposition of Anti-Dumping Duties on Imports of Cotton Yarn
from Brazil  ("EEC – Cotton Yarn
 "), adopted 30 October 1995, BISD 42S/17, para. 582 (emphasis added).
88 Interestingly, while the first sentence of Article 15 imposes an obligation on developed countries to
give "special regard" to the situation of developing country Members, the second sentence of Article 15 is not solimited.
89 Panel Report, European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen
from India ("EC – Bed Linen "), WT/DS141/R, adopted 12 March 2001, as modified in other respects by the
Appellate Body Report, at para. 6.228WT/DS206/R
Page 39
for the decision made regarding the offered susp ension agreement."  We cannot agree.  As the EC -
Bed Linen  Panel noted, the term "explore" "is defined, inter alia, as "investigate; examine,
scrutinise"".90  While it would be useful to have a written record of the result of the "exploration", we
see nothing in Article 15 to require such a record.  In this regard, we note that India made no claim
under Article 12 of the AD Agreement, concerning the adequacy of the USDOC notice of its final
determination. Similarly, there is no claim under Article 8.3 of the AD Agreement, which requiresthat the investigating authorities must "provide to  the exporter the reasons which have led them to
consider acceptance of an undertaking as inappropriate".  Moreover, we note that there is, in the file, a
document which memorialises the meeting held between SAIL representatives and officials of
USDOC at which the possibility of a suspension agreement was raised.  As there is no claim here
under Articles 8.3 or 12, we do not here consid er whether the internal memorandum of USDOC
would satisfy the requirements of those provisions.  We merely note that the document, the accuracy
of which is unchallenged, supports the United States' position that consideration was given to theundertaking proposed by SAIL.
7.114  In our view, the concept of "explore" cannot be understood to require any particular outcome,
either with respect to the substantive decision that results from the exploration, or with respect to any
record of that exploration of the resulting decision.  We note in this regard the statement of the Bed
Linen  Panel that "the concept of "explore" clearly does not imply any particular outcome."  The Bed
Linen  Panel went on to state:
"Article 15 does not require that "constructive remedies" must be explored, but rather
that the "possibilities" of such remedies must be explored, which further suggests that
the exploration may conclude that no possibilities exist, or that no constructive
remedies are possible, in the particular circumstances of a given case.  Taken in itscontext, however, and in light of the obje ct and purpose of Article 15, we do consider
that the "exploration" of possibilities must be actively undertaken by the developed
country authorities with a willingness to reach a positive outcome.  Thus, in our view,
Article 15 imposes no obligation to actually provide or accept any constructive
remedy that may be identified and/or offered.
92  It does, however, impose an
obligation to actively consider, with an open mind, the possibility of such a remedy
prior to imposition of an anti-dumping measure that would affect the essential
interests of a developing country.
_______________________
92 We note that our interpretation of Article 15 in this regard is consistent with that of a GATT
Panel which considered the predecessor of that provision, Article 13 of the Tokyo Round
Anti-Dumping Code, which provision is substantively identical to present Article 15.  ThatPanel found:
"The Panel noted 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 "[p]ossibilities" and "explored" that the
investigating authorities were no t required to adopt constructive
remedies merely because they were proposed. "  EC - Imposition of Anti-
Dumping Duties on Imports of Cotton Yarn from Brazil , Panel Report,
ADP/137, adopted 30 October 1995, para.  584 (emphasis added)."
7.115  In this case, it is clear to us that possibilities of constructive remedies were in fact explored,
but that no constructive remedy was applied.  The United States asserts, and India acknowledges, that
                                                     
90 The New Shorter Oxford English Dictionary, Clarendon Press, Oxford, 1993.WT/DS206/R
Page 40
a meeting was held at which SAIL's proposal of a suspension agreement was discussed, and that US
officials indicated at that meeting that it was unlikely that a suspension agreement would be accepted.
In the end, there were no further discussions of a suspension agreement, and no such agreement was
entered into.  In our view, while this is a clearly unsatisfactory result from SAIL's, and India's, point
of view, this course of action by USDOC was sufficient to satisfy the requirements of the second
sentence of Article 15.
7.116  India suggests that the USDOC should have considered applying a lesser duty in this case,
despite the fact that US law does not provide for application of a lesser duty in any case.  We note that
consideration and application of a lesser duty is deemed desirable by Article 9.1 of the
AD Agreement, but is not mandatory.  Therefore, a Member is not obligated to have the possibility of
a lesser duty in its domestic legislation.  We do not consider that the second sentence of Article 15 can
be understood to require a Member to consider an action that is not required by the WTO Agreement
and is not provided for under its own municipal law.
7.117  On the basis of the foregoing discussion, we conclude that the United States did not act
inconsistently with Article 15 of the AD Agreement.
7.118  We note, incidentally, the Ministerial Decision on Implementation-Related Concerns, which
states, at paragraph 7.2, that Ministers recognize
"that, while Article 15 of the Agreement on the Implementation of Article VI of the
General Agreement on Tariffs and Trade 1994 is a mandatory provision, the
modalities for its application would benefit from clarification.  Accordingly, the
Committee on Anti-Dumping Practices is instructed, through its working group on
Implementation, to examine this issue and to draw up appropriate recommendations
within twelve months on how to operationalize this provision."91
Members of the WTO are at present engaged in a process of discussions in response to this Ministerial
Decision.
VIII.  CONCLUSIONS AND RECOMMENDATION
8.1 In light of the findings above, we conclude that the United States acted inconsistently with
Article 6.8 and paragraph 3 of Annex II of the AD Agreement in refusing to take into account US
sales price information submitted by SAIL without a legally sufficient justification and making its
determination regarding the dumping margin for SAIL entirely on the basis of facts available in the
anti-dumping investigation at issue in this dispute.
8.2 In light of the findings above, we further conclude:
(a) that the United States statutory provisions governing the use of facts available,
sections 776(a) and 782(d) and (e) of the Tariff Act of 1930, as amended, are not
inconsistent with Articles 6.8 and paragraphs 3, 5, and 7 of Annex II of the
AD Agreement.
(b) that the United States did not act inconsistently with Article 15 of the AD Agreement
with respect to India in the anti-dumping  investigation underlying this dispute.
                                                     
91 Decision of 14 November 2001, WT/MIN(01)/17 (20 November 2001).WT/DS206/R
Page 41
8.3 We have also concluded that the "practice" of the USDOC concerning the application of
"total facts available" is not a measure which can give rise to an independent claim of violation of the
AD Agreement, and have therefore not ruled on India's claim in this regard.
8.4 With respect to those of India's claims not addressed above we have concluded that:
(a) we will not rule on India's abandoned claim; and
(b) in light of considerations of judicial economy, it is neither necessary nor appropriate
to make findings with respect to the remainder of India's claims.
8.5 Under Article 3.8 of the DSU, in cases where there is infringement of the obligations assumed
under a covered agreement, the action is considered prima facie  to constitute a case of nullification or
impairment of benefits under that agreement.  Acco rdingly, we conclude that to the extent the United
States has acted inconsistently with the provisions of the AD Agreement, it has nullified or impaired
benefits accruing to India under that Agreement.
8.6 We therefore recommend that the Dispute Settlement Body request the United States to bring
its measure into conformity with its obligations under the AD Agreement.
8.7 India requests that we exercise our discretion under Article 19.1 of the DSU to suggest ways
in which the United States could implement our recommendation.  Specifically, India considers that
we should "suggest that the United States recalculate the dumping margins by taking into account
SAIL's verified, timely submitted and usable U.S. sales data, and also, if appropriate, revoke the finalanti-dumping order".
92
8.8 Article 19.1 of the DSU provides that:
"In addition to its recommendations, the panel or Appellate Body may suggest ways
in which the Member concerned could implement the recommendations".
While we are free to suggest ways in which we believe the United States could appropriately
implement our recommendation, we decide not to do so in this case.  We have found that the United
States failed to act consistently with the requirements of the AD Agreement in refusing to take into
account US sales price information submitted by SAIL without a legally sufficient justification and
basing its determination of a dumping margin for SAIL in this case on total facts available, and have
recommended that the United States bring its measure into conformity with its obligations. In thisregard, we note Article 21.3 of the DSU, which provides:
"At a DSB meeting held within 30 days after the date of adoption of the panel or
Appellate Body report, the Member concerne d shall inform the DSB of its intentions
in respect of implementation of the re commendations and rulings of the DSB".
(footnote omitted).
Thus, while a panel may suggest ways of implementing its recommendation, the choice of means of
implementation is decided, in the first instance, by the Member concerned.  In this case, we see no
particular need to suggest a means of implementation, and therefore decline to do so.
__________
                                                     
92 First Written Submission of India at para 181.