WORLD TRADE  
ORGANIZATION   
WT/DS429/2 
7 January 2013  
 
(13-0037) 
 Original:   English 
  
UNITED STATES – ANTI-DUMPING MEASURES ON  
CERTAIN SHRIMP FROM VIET NAM 
 
Request for the Establishment of a Panel by Viet Nam 
  
 The following communication, dated 20 December 2012, from the delegation of Viet Nam to 
the Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU. 
 
_______________ 
  
Upon instruction from my authorities, I wish to  convey the request of the Government of 
Viet Nam ("Viet Nam") to the Dispute Settlement Bo dy (the "DSB") for the establishment of a panel 
pursuant to Article XXIII: I of the General Agre ement on Tariffs and Trade 1994 (the "GATT 1994"), 
Articles 4 and 6 of the Understanding on Rules and Procedures Governing the Settlement of Disputes 
(the "DSU"), and Article 17.4 of the Agreement on Implementation of Artic le VI of the General 
Agreement on Tariffs and Trade 1994 (the "Anti- Dumping Agreement") with respect to certain 
anti-dumping measures imposed by the United States on imports of certain shrimp from Viet Nam.  
At the outset, Viet Nam observes that this  is the second dispute settlement proceeding 
concerning imports of certain shrimp from Viet Nam.  Many of the issues raised in the present request 
for the establishment of a panel were addressed by the panel in US – Anti-Dumping Measures on 
Certain Shrimp from Viet Nam  (DS404). The DSB adopted that panel report on 2 September 2011. 
Despite the United States' statement that it woul d implement the DSB's recommendations and ruling 
in a reasonable period of time set to expire on 2 July 2012, the recommendations and rulings have yet 
to be implemented as of the date of this request. Notwithstanding this failure to implement, Viet Nam 
respectfully requests that the Panel in this di spute consider the effect of the implemented 
recommendations and rulings, as it impacts the issues in this dispute, including challenges concerning 
the United States Department of Commerce's final sunset review determinations.  
1. Consultations  
Pursuant to Article 4 of the Understanding on the Rules and Procedures Governing the 
Settlements of Disputes (DSU) and Article XXII: 1 of the General Agreement on Tariffs and Trade 
1994 (GATT 1994), Viet Nam requested consultations w ith the United States (US) regarding certain 
anti-dumping measures imposed by the United States on imports of certain shrimp from Viet Nam. 
Viet Nam requested consultations with the United States on 20 February 2012, and the request was 
circulated on 27 February 2012 as document WT/DS429/1, G/L/980, G/ADP/D91/1.  
Viet Nam and the United States held consu ltations on March 28, 2012 in Geneva. Those 
consultations were held with the hope of reachin g a mutually satisfactory solution. The parties at 
consultations gained a better understanding of the issues under consideration, but did not reach a 
resolution of the matter. Therefore, Viet Nam hereby  requests that a panel be established pursuant to 
Article 6 of the DSU and Article XXIII of the GATT 1994.  WT/DS429/2 
Page 2  
 
  2. Summary of Facts and Legal Basis of Complaint  
 This request is, in particular but no t exclusively, made with respect to:  
 
(1) The imposition of antidumping  duties a nd cash deposit requirements  pursuant to 
the final results of the United States Department of Commerce's (hereafter, 
"USDOC") fourth administrative review for the period from February 1, 2008 to 
January 31, 2009, in Certain Frozen Warmwater Shrimp From the Socialist Republic 
of Vietnam: Final Results and Partial Rescission of Antidumping Duty Administrative 
Review, 75 Fed. Reg. 4771 (August 9, 2010);  
 
(2) The fourth administrative review of Certain Frozen Warmwater Shrimp from the 
Socialist Republic of Vietnam insofar as it did not revoke the anti-dumping duty order 
with respect to certain respondents reques ting or eligible for such revocation.  
 (3) The imposition of anti-dumping duties and cash deposit requirements pursuant to the 
final results of the USDOC's fifth administrative review for the period from February 
1, 2009 through January 31, 2010, in Certain Frozen Warmwater Shrimp from the 
Socialist Republic of Vietnam: Final Results and Final Partial Rescission of 
Antidumping Duty Administrative Review, 76 Fed. Reg. 56158 (September 12, 2011);  
 (4) The fifth administrative review of Certain Frozen Warmwater Shrimp from the 
Socialist Republic of Vietnam  insofar as it did not revoke the anti-dumping duty order 
with respect to certain respondents eligible for such revocation;  
 (5) The imposition of anti-dumping duties and cash deposit requirements pursuant to the 
final results of the USDOC's sixth admi nistrative review for the period from 
February 1, 2010 through January 31, 2011, in Certain Frozen Warmwater Shrimp 
from the Socialist Republic of Vietnam: Final Results and Final Partial Rescission of 
Antidumping Duty Administrative Review, 77 Fed. Reg. 55800 (September 11, 2012);  
 (6) The sixth administrative review of Certain Frozen Warmwater Shrimp from the 
Socialist Republic of Vietnam insofar as it did not revoke the anti-dumping duty order 
with respect to certain respondents eligible for such revocation;  
 (7) The continued application of the practices and conduct described below, in any other 
ongoing or future anti-dumping administrative reviews, and the preliminary and final 
results thereof, related to the imports of certain frozen warm water shrimp from 
Viet Nam (DOC Case A-552-802), as well as any assessment instructions, cash 
deposit requirements, and revoca tion determinations issued pursuant to such reviews;  
 (8) The final results Certain Frozen Warmwater Shrimp from the Socialist Republic of 
Vietnam: Final Results of the First Five-ye ar "Sunset" Review of the Antidumping 
Duty Order, 75 Fed. Reg. 75965 (Dec. 7, 2010), in which the USDOC determined 
that revocation of the anti-dumping duty order would be likely to lead to the 
continuation or recurrence of dumping; and  
 (9) Section 129 of the Uruguay Round Agreements Act ("URAA"), 19 U.S.C. §3538, as 
elaborated upon in the Statement of Ad ministrative Action accompanying the URAA 
and as implemented by the relevant United States authorities.  
  WT/DS429/2 
 Page 3 
 
 
  (a) Zeroing  
(i) Summary of Facts  
In each of the administrative reviews at issue, the USDOC has made use of the zeroing 
methodology that has been repeatedly and consistently  held by the Appellate Body to be in violation 
of US international obligations. Specifically, in making an average-to-average comparison of export 
price and normal value, the USDOC does not allow non-dumped sales to offset the amount of 
dumping found with respect to other sales. The US DOC has acknowledged in each review use of this 
zeroing methodology in the administrative determinations. Therefore, the dumping rate is in excess of the actual dumping engaged in by the respondents.  
These calculations and methodologies are applied pursuant, in particular, to the following 
United States laws and regulations:  
1. Tariff Act of 1930, as amended, Section 771(35)(A)  
2. Implementing regulations of the USDOC, 19 C.F.R. § 351.408 and 351.414.  
 
The USDOC issued a "final modification" of its  practice of zeroing in administrative reviews 
on February 14, 2012 (77 FR 8101), but this modifica tion specifically excluded application of the new 
practice to any of the completed annual reviews of the antidumping duty order on Certain Frozen 
Warmwater Shrimp from the Socialist Republic of Vietnam including reviews completed after that 
date, and the sunset review. Thus, the margins of dumping calculated in the fourth, fifth, and sixth 
administrative reviews, and used as the basis for the sunset review a nd other determinations related to 
revocation, were all based on a WTO inconsiste nt methodology, as were the margins of dumping 
determined in the second and third reviews. As wa s the case in the second and third administrative 
reviews, the margins of dumping properly calculated are zero or de minimis.  
(ii) Legal Basis of Complaint  
Viet Nam considers the above-mentioned laws and procedures by the USDOC to be, as such 
and as applied in a continued and ongoing basis, inconsistent with several provisions of the 
Anti-Dumping Agreement, GATT 1994, and the Marrak esh Agreement. In original investigations, 
periodic reviews, new shipper reviews, sunset revi ews, and certain changed circumstances reviews, 
USDOC's use of zeroing is inconsistent with:  
1. Article 2 of the Anti-Dumping Agreement, including paragraphs 2.1, 2.4, and 2.4.2, 
because the comparison made by the USDOC is inconsistent with the requirements of Article 2 and those paragraphs of Article 2;  
 2. Article 9 of the Anti-Dumping Agreement, including paragraphs 9.1 and 9.3, because 
the USDOC's use of the zeroing methodology results in the imposition of duties in 
excess of the amount of dumping as determined pursuant to Article 2;  
 3. Paragraph 9.4 of Article 9 of the Anti- Dumping Agreement because the USDOC's use 
of the zeroing methodology results in the impos ition of duties for the all-other rate in 
excess of the amount of dumping as determined pursuant to Article 2;  
 
4. Article 1 of the Anti-Dumping Agreem ent and Articles VI:1 and VI:2 of the 
GATT 1994 to the extent that the imposition and collection of the duties is inconsistent with the Anti-Dumping Agreement;  
 WT/DS429/2 
Page 4  
 
  5. For sunset reviews only, Article 11 of the Anti-Dumping Agreement, including 
paragraphs 11.1, 11.2, 11.3 and 11.4 of the Anti-Dumping Agreement where 
likelihood of continued dumping determin ations are made using the zeroing 
methodology inconsistent with Articl es 2.4 and 2.4.2 of the Anti-Dumping 
Agreement; and  
 
6. Part 1:2 of the Protocol of Accession of the Socialist Republic of Vietnam, WT/L/662, 
15 November 2006 and Paragr aphs 254 and 255 of the Report of the Working Party 
on Accession of Vietnam, WT/ACC/VNM/48 , 26 October, 2006.  
 
Viet Nam also considers that USDOC's a pplication of the above-mentioned laws and 
procedures in the periodic and sunset reviews here at issue to be inconsistent with the following 
provisions of the Anti-Dumping Agreement, GATT 1994, and the Marrakesh Agreement for the same 
reasons set out above:  
7. Articles 1, 2.1, 2.4, 2.4.2, 9.1, 9.3, 11.1, and 11.3 of the Anti-Dumping Agreement.  
 
8. Article 18.4 of the Anti-Dumping Agreem ent and Article XVI:4 of the Marrakesh 
Agreement.  
 9. Articles 1 and 2 of the GATT 1994.  
 
Moreover, Viet Nam challenges the USDOC's use of the zeroing methodology in the original 
investigation and the first, second, third, fourth, fifth, and sixth administrative reviews, (1) to the extent that this practice impacted the USDOC 's revocation and five-year "sunset" review 
determinations in the measures at issue and (2) to the extent that these determinations demonstrate the 
USDOC's continued and ongoing use of this prac tice throughout the full course of the shrimp 
antidumping proceeding.  
(b) Vietnam-Wide Entity Rate Based on Adverse Facts Available  
(i) Summary of Facts  
The USDOC has applied a Vietnam-wide entity  rate based on adverse facts available 
throughout the anti-dumping proceedings identifie d above. For countries identified as non-market 
economy countries, the USDOC requires that compan ies not selected as mandatory respondents apply 
for separate rates; those that fail to do so or do not meet the separate rate criteria are given the 
"Vietnam-wide entity rate" as established by USDOC. Ev en a company that timely and fully responds 
to the questions posed by USDOC will be assigned th is Vietnam-wide entity rate if it does not rebut 
the presumption established by USDOC: specifically, the company must establish that it does not operate under the control of the government. If the company is successful, it will receive a "separate 
rate," which is generally the weighted average of the rates calculated for the individually investigated 
respondents.  
Companies that do not receive a separate rate ar e assigned the Vietnam-wide entity rate. In the 
proceedings at issue, the USDOC assigned a Vietnam-wide entity rate based entirely on adverse facts 
available, even where companies responded timely and fully to the questionnaires issued by USDOC. 
The USDOC did so on the basis that certain separate rate applicants did not submit complete 
information and because the Vietnamese government did not submit a response on their behalf. The 
effect of this action is to assign highly prejudici al and unjustifiable rates to companies that do 
everything in their control to comply with USDOC requests.   WT/DS429/2 
 Page 5 
 
 
  These calculations and methodologies are applied pursuant, in particular, to the following 
United States laws and measures:  
1. Tariff Act of 1930, as amended, Sectio ns 771(18)(C)(i), 776(a)(2), and 776(b);  
2. Import Administration Antidumping Manual,  Chapter 10, "Non-Market Economies."  
 
(ii) Legal Basis of Complaint  
In the antidumping proceedings at-issue, the Un ited States applied the laws and methodologies 
described above with regard to calculation of a Vi etnam-wide entity rate, which Viet Nam considers 
to be inconsistent, as such and as applied on a contin ued and ongoing basis, with the obligations of the 
United States under the Anti-Dumping Agreement. Specifically, Viet Nam c onsiders these measures 
to be inconsistent with the following prov isions of the Anti-Dumping Agreement.  
l.  Articles 2 and 9 of the Anti-Dumping Agreement because these Articles determine 
the basis for calculation of antidumping margins and the collection of antidumping duties and do not refer to the circumstances contemplated by the application of a Vietnam-wide entity rate based on adverse facts available.  
2. Article 6.8 and Appendix II of the An ti-Dumping Agreement because USDOC relied 
on adverse facts available for the calculation of the Vietnam-wide entity rate for 
entities not granted a "separate rate." In so doing, the USDOC failed to adhere to the provisions of the Agreement governing the use of adverse facts available, as the 
presence of "state control" is not a rele vant criterion for determining margins of 
dumping or the application of adverse facts available.  
3. Article 6.10 because the USDOC, in a pplying the Vietnam-wide entity rate to 
multiple entities, failed in its obligation to  determine individual margins of dumping. 
The only exception to this requirement is  where the USDOC relies on sampling, per 
the second sentence of Article 6.10.  
4. Article 9, including paragraph 9.4, of  the Anti-Dumping Agreement because the 
USDOC has created a category of producers not contemplated in the Agreement. The 
Agreement permits an authority to calculat e a rate for individually investigated 
producers, a rate based on facts available fo r individually investigated producers that 
do not cooperate, and a separate, "all others " rate calculated based on the weighted 
average margin of the individually investig ated producers. The "country-wide" rate 
applied by USDOC does not adhere to these limitations.  
5. Articles 6. 10 and 9.2 which, in  tandem, require calculation of individual dumping 
margins except where the USDOC relies on its sampling methodology or to do so 
would be impracticable. These provisions demonstrate that the USDOC has no basis for its presumption that multiple entities constitute a single, Vietnam-wide entity.  
6. Part 1.2 of the Protocol of Accessi on of the Socialist Republic of Vietnam, 
WT/L/662, 15 November 2006 and Paragraphs  527, 254 and 255 of the Report of the 
Working Party on Accession of Vietnam, WT/ACC/VNM/48 , 27 October 2006 
because the terms of Vietnam's accession to the WTO do not permit the application of such a Vietnam-wide entity rate unless otherwise provided for under the Anti-Dumping Agreement.  WT/DS429/2 
Page 6  
 
  Viet Nam also considers that USDOC's a pplication of the above-mentioned laws and 
procedures in the periodic reviews here at issue to be inconsistent with the following provisions of the 
Anti-Dumping Agreement, GATT  1994, and the Marrakesh Agreement  for the same reasons set out 
above:  
7. Article 18, including paragraphs 18. 1, 18.3 and 18.4, of the Anti-Dumping 
Agreement and Article XVI:4 of  the Marrakesh Agreement.  
8. Articles 1 and 2 of the GATT 1994.  
Moreover, Viet Nam challenges the treatment of  the Vietnam-wide entity in the original 
investigation and the first, second, third, fourth, fifth, and sixth administrative reviews, (1) to the extent that this practice impacted the USDOC 's revocation and five-year "sunset" review 
determinations in the measures at issue and (2) to the extent that these determinations demonstrate the 
USDOC's continued and ongoing use of this prac tice throughout the full course of the shrimp 
antidumping proceeding.  
(c) Limiting the Number of Respondents Selected for Full Investigation or Review  
(i) Summary of Facts  
The United States antidumping law requires as a general rule examination of each known 
producer or exporter of subject merchandise. Beyond this general rule, the USDOC has the authority to limit the investigation to a selected number of producers where investigation of all known producers or exporters is not practicable.  
The USDOC has only investigated or reviewed the few largest exporters, with the exception 
of new shipper reviews, throughout the proceedi ng at-issue, limiting to a substantial degree the 
number of producers individually investigated or reviewed. The USDOC has limited the respondents 
reviewed to the largest exporters in each of the administrative reviews that are measures at issue, 
selecting for individual investigation in each instance  a fraction of the companies seeking individual 
review.  
Companies not selected for individual investiga tion or review because of the US authorities' 
methodology have not been assigned their own an tidumping rate, but instead receive either the 
"separate rate" or the Vietnam-wide entity rate. The USDOC in the proceedings at issue have declined 
to calculate an individual rate even where compan ies not individually investigated have voluntarily 
submitted information so that USDOC may do so. Th e result is that companies not presently engaging 
in dumping have not had and do not have the opportunity to receive a dumping rate of zero or de 
minimis, because they never have the opportunity to  be individually investigated. Thus, companies 
not individually investigated, caused by USDOC's review of only the largest exporters, are not 
eligible for revocation of the dumping order on an individual basis. The USDOC will revoke an 
antidumping order where the exporter or producer has not engaged in dumping for three consecutive 
years and there is a likelihood that they will not do so in the future. Companies not individually 
investigated in these proceedings have no opport unity to establish three consecutive years of de 
minimis dumping rates and will be forced to conti nue to pay dumping rates even if they have not 
engaged in sales at less than fair value for more than three consecutive years. In addition, any final 
duties related to imports from these companies are,  have been, or will be assessed duties in excess of 
the margin of dumping.  
These methodologies are applied pursuant, in par ticular, to the following United States laws 
and measures:   WT/DS429/2 
 Page 7 
 
 
  1. Tariff Act of 1930, as amended, Section 777A(c)(2)(B);  
2. Implementing regulation of the USDOC, 19 C.F.R. § 351.204.  
 
(ii) Legal Basis of Complaint  
Because the United States has acted in the ma nner just described, Viet Nam considers the 
proceedings to be inconsistent, as such and as app lied on a continued and ongo ing basis, with certain 
WTO obligations. Viet Nam considers these actions to  be inconsistent with the following provisions 
of the Anti-Dumping Agreement and the Vienna Convention on the Law of Treaties:  
1. Article 6, including paragraph 6.10, of the Anti-Dumping Agreement because the 
USDOC has failed to determine an individual margin of dumping for each known exporter or producer, without proper justifi cation, at each stage of the proceedings.  
2. Article 6, including para graph 6.10.2 of the Anti-Du mping Agreement because the 
USDOC has, without proper justification,  refused to investigate respondents on the 
basis of information voluntarily submitted  and has refused voluntary responses.  
3. Article 9, including paragraph 9.4, of  the Anti-Dumping Agreement because the 
USDOC has refused to apply individual duties or normal values to respondents that 
provided the necessary information during th e course of the investigation and has 
applied duties to non-investigated respondents without any evidence of dumping by those non-investigated respondents.  
4. Article 11.1 of the Anti-Dumping Ag reement because the USDOC's method of 
selecting respondents requires anti-dumping duti es to be imposed even in instances 
where the producer or exporter is not dumping, where that producer has not been 
individually selected for investigation.  
5. Part 1.2 of the Protocol of Accessi on of the Socialist Republic of Vietnam, 
WT/L/662, 15 November 2006 and Paragraphs  527, 254 and 255 of the Report of the 
Working Party on Accession of Vietnam, WT/ACC/VNM/48 , 27 October 2006 
because the terms of Vietnam's accession to the WTO do not permit the application of 
such a country-wide rate unless otherwise provided for under the Anti-Dumping 
Agreement.  
6. Article 31 of the Vienna Convention on  the Law of Treaties because the USDOC's 
practice does not comport with the overall purpose and intent of the Anti-Dumping 
Agreement, namely, the fair and effectiv e imposition of anti-dumping duties so as to 
prevent the sale of goods for less than fair value.  
Viet Nam also considers that USDOC's a pplication of the above-mentioned laws and 
procedures in the original investigation and periodic re views here at issue to be inconsistent with the 
following provisions of the Anti-Dumping Agreem ent, GATT 1994, and the Marrakesh Agreement  
for the same reasons set out above:  
7. Article 18, including paragraphs 18. 1, 18.3 and 18.4, of the Anti-Dumping 
Agreement and Article XVI:4 of  the Marrakesh Agreement.  
8. Articles 1 and 2 of the GATT 1994.  Moreover, Viet Nam challenges the use of limited respondent selection in the original 
investigation and the first, second, third, fourth, fifth, and sixth administrative reviews, (1) to the WT/DS429/2 
Page 8  
 
  extent that this practice impacted the USDOC 's revocation and five-year "sunset" review 
determinations in the measures at issue and (2) to the extent that these determinations demonstrate the 
USDOC's continued and ongoing use of this prac tice throughout the full course of the shrimp 
antidumping proceeding.  
(d) The United States Department of Commerce's Sunset Review Determinations  
(i) Summary of Facts  
In sunset reviews, the United States Department of Commerce bases its determinations on 
dumping margins calculated in a manner inconsistent with international obligations. A sunset review 
determination focuses on whether the expiry of an anti-dumping duty order would be likely to lead to 
continuation or recurrence of dumping. The USDOC makes this determination based primarily on two 
factors. First, by using dumping margins previous ly calculated with the zeroing methodology. In other 
words, the USDOC depends on dumping margin s calculated in the original anti-dumping 
investigation and/or subsequent administrative re views, in which negative dumping margins had been 
zeroed, producing an artificially high dumping ma rgin. Second, the USDOC reviews the volume of 
imports of the product for the period before and the period after issuance of the anti-dumping duty 
order. The USDOC will find that revocation is likel y to lead to the continuation of dumping where 
(1) dumping continued at a level a bove de minimis after issuance of the order, (2) imports of the 
product ceased after issuance of the order, or (3) dumping was eliminated and import volumes declined significantly. In reviewing import leve ls, the USDOC considers the full year prior to 
initiation of the investigation.  
These methodologies are applied pursuant, in par ticular, to the following United States laws 
and measures:  
1. Tariff Act of 1930, as amended, Sections 751 and 752;  2. the USDOC's Policy Bulletin 98.3, "Po licies Governing the Conduct of Five-Year 
("Sunset") Reviews of Antidumping and Countervailing Duty Orders" (April 16, 
1998), 63 Fed. Reg. 18871 (April 16, 1998).  
(ii) Legal Basis of Complaint  
Because the United States has acted in the ma nner just described, Viet Nam considers the 
proceedings to be inconsistent with certain WTO ob ligations. Viet Nam considers these actions to be 
inconsistent, as such and applied, with the following provisions of the Anti-Dumping Agreement and 
GATT 1994:  
1. Articles 11.1 and 11.3, to the extent that the sunset review determinations are based 
on dumping margins that were calculated in a manner inconsistent with Articles 2.4.2 
and 2.4 of the Anti-Dumping Agreement.  
2. Articles 11.1 and 11.3, to the extent that the USDOC's sunset determination did not 
represent an objective or unbiased assessment of the facts before the authority and 
was not supported by those facts.  
3. Articles 1 and 11.1 of the Anti-Dumping Ag reement and Articles VI:I and VI:2 of the 
GATT 1994, to the extent that the USDOC's s unset review determination resulted in 
the continued imposition of antidumping du ties beyond the period in which dumping 
occurred.   WT/DS429/2 
 Page 9 
 
 
  (e) Revocation in the absence of any evidence of dumping  
(i) Summary of Facts  
Beginning with the first review of the USDOC's antidumping duty order on Certain Frozen 
Warmwater Shrimp from Vietnam, there has been no evidence that any Vietnamese manufacturer or 
exporter of subject merchandise has sold that merc handise to the United States below normal value. 
All of the margins of dumping determined by the USDOC resulted from WTO inconsistent practices, 
including zeroing in administrative reviews, impos ing a WTO inconsistent practice of requiring non-
investigated companies to establish entitlement to the all others rate, and the application of an adverse 
facts available rate to the so-called Vietnam-wide entity.  
Section 351.222 of the Department of Commerc e regulations, as in effect through the 
conclusion of the sixth administrative review, pr ovides for the Department to revoke antidumping 
orders in whole or in part based on the absence of dumping. Historically, antidumping duty orders 
have been revoked as to individual respondents based on the absence of dumping demonstrated in 
consecutive annual reviews. All individually inves tigated respondents have demonstrated the absence 
of dumping over a sustained period of time when the margins of dumping are calculated in a WTO 
consistent manner. At least one individually investigated compan y has demonstrated the absence of 
dumping in 3 or more consecutive reviews, while all individually investigated respondents have 
demonstrated the absence of dumping in every re view in which they have been individually 
investigated. Thus, irrespective of the results of  a WTO consistent sunset review, the antidumping 
duty order should be revoked in part with respect to individually investigated respondents having zero or de minimis margins of dumping in reviews two th rough five and two through six, when the sixth 
review is completed.  
The GOV notes that section 351.222 of the Depa rtment's of Commerce's regulations as in 
effect through the conclusion of the sixth admini strative review was amended on May 21, 2012. See 
77 Fed. Reg. 29875. Under the new rule, applicable to any administrative review initiated on or after 
June 20, 2012, individual exporters or producers ar e not eligible for revocation of an antidumping 
duty order even if they have received antidumping rates of zero for three consecutive years. There is 
therefore no means by which individual exporters  or producers can achieve revocation of an 
antidumping duty order.  
(ii) Legal Basis of Complaint  
Viet Nam considers the above mentioned actions to be, as applied, inconsistent with several 
provisions of the Anti-Dumping Agreement. Article  11.1 of the Anti-Dumping Agreement provides: 
An anti-dumping duty shall remain in force only as long as and to the extent necessary to counteract 
dumping which is causing injury. In order to ensure  that the obligations of Article 11.1 can be 
realized, Article 11.2 provides:  
The authorities shall review the need for the continued imposition of the duty, where 
warranted, on their own initiative or, provi ded that a reasonable period of time has 
elapsed since the imposition of the definitive anti-dumping duty, upon request by any 
interested party which submits positive in formation substantiating the need for a 
review. Interested parties shall have the right to request the authorities to examine 
whether the continued imposition of the duty is necessary to offset dumping, whether the injury would be likely to continue or r ecur if the duty were removed or varied, or 
both. If, as a result of the review under this paragraph, the authorities determine that 
the anti-dumping duty is no longer warranted, it shall be terminated immediately.  WT/DS429/2 
Page 10  
 
  The obligations under Article 11.2 are in additio n to the obligations to undertake a sunset 
review set forth in Article 11.3. The continued application of antidumping measures to respondents 
that have demonstrated the sustained absence of dumping is inconsistent with US obligations under 
Articles 11.1 and 11.2.  
(f) Section 129 of the Uruguay Round Agreements Act ("URAA")  
(i) Summary of Facts  
Section 129 of the URAA is the mechanism by which the United States implements adverse 
findings by the DSB. The law assigns responsibilit y to the United States Trade Representative, the 
USDOC and the ITC for implementing adverse decisions in a manner consistent with US international 
obligations.  
The law contains unambiguous language on the effect of a Section 129 determination. The 
statute requires that "Determinations ... shall apply w ith respect to unliquidated entries of the subject 
merchandise that are entered or withdrawn from warehou se, for consumption on or after ... the date on 
which the Trade Representative directs the admi nistering authority ... to implement that 
determination." This unders tanding is confirmed by the Statement of Administrative Action ("SAA"), 
which has been properly recognized as a definitiv e statement on operation of the URAA. Indeed, the 
URAA itself states that "[t]he statement of administrative action approved by the Congress under section 101(a) shall be regarded as an authorita tive expression by the United States concerning the 
interpretation and application of the {URAA} and this Act in any judicial proceeding in which a 
question arises concerning such interpretation or  application." The SAA is the most probative 
authority available for purposes of interpreting the la nguage of the URAA. The statute, on its own, is 
quite clear on the limited effect of Section 129 determinations for en tries made pursuant to a measure 
at issue. The SAA reinforces this limitation. The statute does not provide the Trade Representative, 
the USDOC or the CBP officials responsible for assess ment, with the discretion to adjust the final 
duty liability of unliquidated entries.  
This practice is applied pursuant, in partic ular, to the following United States laws and 
measures:  
1. Section 129 of the URAA, codified as 19 U.S.C. § 3538;  2. the United States Statement of Administrative Action that accompanied the Uruguay 
Round Agreements Act, H.R. Doc. No.1 03-316, vol. 1.  
(ii) Legal Basis of Complaint  
Because the United States has acted in the ma nner just described, Viet Nam considers these 
provisions to be inconsistent, as such, with cer tain WTO obligations. Viet Nam considers these 
actions to be inconsistent with  the following provisions of the Anti-Dumping Agreement and the 
GATT 1994:  
1. Article 1 of the Anti-Dumping Agreemen t, to the extent that an anti-dumping 
measure is applied despite imposition of the duty pursuant to an investigation 
conducted in violation of the GATT 1994 and the Anti-Dumping Agreement.  
2. Article 9.2 of the Anti-Dumping Agreement,  to the extent that the USDOC and other 
relevant United States agencies continue to collect anti-dumping duties at a level known to be in excess of the appropriate amount.   WT/DS429/2 
 Page 11 
 
 
  3. Article 9.3 of the Anti-Dumping Agreement,  to the extent that the USDOC and other 
relevant United States agencies continue to collect anti-dumping duties at a level that 
exceeds the margin of dumping as established under Article 2.  
4. Article 11.1 of the Anti-Dumping Agreem ent, to the extent that the anti-dumping 
duty order remains in effect, and anti-dumping duties continue to be collected, 
beyond the period necessary to counteract dumping.  
5. Article 18.1 of the Anti-Dumping Agreement, to the extent that the continued 
collection of duties amounts to an action that is performed without the authority provided in the GATT 1994.  
3. Request  
Viet Nam hereby respectfully requests that a pane l be established, with the standard terms of 
reference, by the Dispute Settlement Body pursuant to Articles 4.7 and 6 of the DSU, Article XXIII of 
the GATT 1994, and Article 17.4 of the Anti-Dumping Agreement.  
 
__________