WT/DS536/2  
 
12 June 2018  
(18-3674) Page: 1/8 
  Original: English  
 
UNITED STATES – ANTI -DUMPING MEASURES ON FISH FILLETS FROM VI ET NAM  
REQUEST FOR THE ESTA BLISHMENT OF A PANEL  BY VIET NAM  
The following communication, dated 8 June 2018 , from the delegation of Viet Nam  to the 
Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.  
 
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Upon instruction from my authorities, I wish to convey the request of the Government of Viet Nam 
("Viet Nam ") to the Dispute Settlement  Body (the "DSB") for the establishment of a panel 
pursuant to Article XXIII:1 of the General Agreement 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 
Article VI of the General Agreement on Tariffs and Trade 1994 (the "Anti-Dumping Agreement ") 
with respect to anti -dumping measures imposed by the United States on imports of fish fillets from 
Viet Nam (DS536).  
At the outset, Viet Nam observes that this is the third dispute settlement proceeding brought by 
Viet Nam involving anti -dumping measures imposed by the United States. Many of the issues 
raised in the present request for the establishment o f a panel were addressed by the panels  in 
US – Anti-dumping Measures on Certain Shrimp from Viet Nam (DS404 and DS429). The DSB 
adopted the DS404 panel report on 2 September 2011; despite the United States ' statement that 
it would implement the DSB 's recom mendations and rulings 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. The DSB adopted the panel and Appellate Body reports on 22 April 2015. The 
United  States and Viet Nam reached a mutually agreed solution in DS429 notified the DSB of this 
on 18 July 2016. Notwithstanding the mutually agreed solution in DS429, a number of WTO 
inconsistencies with U.S anti -dumping practices and laws raised in either DS40 4 and/or DS429 
remain.  Although the factual issues differ between the shrimp cases and fish fillets, virtually every 
legal issue has already been decided in Viet Nam 's favor.  
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 with the United States (US) regarding certain anti -
dumping measures imposed by the United States on imports of fish fillets  from Viet Nam. Viet Nam 
requested consultations with the United States on 8 January 2018;  the request was circulated on 
12 January 2018  as document  G/ADP/D122/1#G/L/1208#WT/DS536/1.  
Viet Nam and the U nited States held consultations on March 1, 2018 in Geneva. Those 
consultations were held with the hope of reaching a mutually satisfactory solution. Viet Nam made 
it clear during the consultations that it would prefer to reach a mutually satisfactory solution in the 
context of consultations than through the Panel process and provided elements of what a such 
solution might involve.  Notwithstanding three subsequent written communications from Viet Nam 
to the US, the US has chosen not to respond to Viet Nam's initiatives. No further consultations 
have been held and no resolution of the matter has been reached.  Therefore, Viet Nam hereby 
requests that a panel be established pursuant to Article 6 of the DS U and Article XXIII of the 
GATT  1994.  WT/DS536/2  
 
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  2. SUMMARY OF FACTS AND LEGAL BASIS OF COMPLAINT  
This request is, in particular but not exclusively, made with respect to:  
(1) The imposition of anti -dumping duties and cash deposit requirements pursuant to the 
final results of the United States Department of Commerce's  (hereafter, "USDOC") fifth 
administrative review for the period from August 1, 2007 to July 31, 2008 in Certain Frozen 
Fish Fillets From the Socialist Republic of Viet  Nam: Final Results of the Antidumping Duty 
Administrative Review and New Shipper Review , 75 Fed. Reg. 12726 (March 17,  2010);  
(2) The imposition of anti -dumping duties and cash deposit requirements pursuant to the 
final results of the USDOC's sixth administrative review for the period from August 1, 2008 
to July 31, 2009, in Certain Frozen F ish Fillets from the Socialist Republic of Viet  Nam: Final 
Results of the Sixth Administrative Review and Sixth New Shipper Review, 76 Fed.  
Reg. 15941 (March 22,  2011);  
(3) The imposition of anti -dumping duties and cash deposit requirements pursuant to the  
final results of the USDOC's seventh administrative review for the period from August 1, 
2009 to July 31, 2010, in Certain Frozen Fish Fillets from the Socialist Republic of Viet  Nam: 
Final and Partial rescission of the Seventh Antidumping Administrative Review, 77 Fed.  Reg.  
15039 (March 14,  2012);  
(4) The seventh administrative review of Certain Frozen Fish Fillets from the Socialist 
Republic of Viet  Nam as referenced above insofar as it did not revoke the anti -dumping duty 
order with respect to certain respondents eligible for and requesting such revocation;  
(5) Any other ongoing or future anti -dumping administrative reviews, and the preliminary 
and final results thereof, related to the imports of Certain Frozen Fish Fillets from the 
Socialist Republic o f  Viet Nam (DOC Case A -552-801), as well as any assessment 
instructions, cash deposit requirements, and revocation determinations issued pursuant to 
such reviews;  
(6) Section 129 of the Uruguay Round Agreements Act ("URAA"), 19 U.S.C. §3538, as 
elaborated  upon in the Statement of Administrative Action accompanying the URAA and as 
implemented by the rel evant United States authorities;  
(7) Any other legal authority claimed by the United States authorities to allow compliance 
with the treatment required by th e WTO with respect to unliquidated entries which entered 
the U.S. prior to the implementation of any Section 129 proceeding.  
The specific U.S. laws, practices, other guidance at issue are as follows:  
(1) the Tariff Act of 1930, as amended, in particular Sections 731, 751, 752, 771(7), 
771(35)(A), 771(35)(B), and 777A(d);  
(2) Section 129 of the URAA, codified as 19 U.S.C. §3538;  
(3) the United States Statement of Administrative Action that accompanied the Uruguay 
Round Agreements Act, H.R. Doc. No.1 03 -316, vol. I;  
(4) the implementing regulations of the United States Department of Commerce 
("USDOC"), 19 C.F.R. Section 351, in particular 19 C.F.R. § 351.218 and 19 C.F.R. § 
351.414;  
(5) the Import Administration Antidumping Manual (2009 edition), including t he computer 
programs to which it refers;  
(6) the methodology of the United States for determining margins of dumping in 
administrative reviews;  WT/DS536/2  
 
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  (7) the practice of requiring submission of a separate rate application or certification in 
original investigati ons and periodic reviews involving  Vietnamese producers in order to 
qualify for the all others or separate  rate rather than the country -wide rate ; 
(8) the application of a so -called Viet  Nam-wide entity rate based on adverse facts 
available to respondents not individually investigated who fail to provide a separate rate 
application or certification to demonstrate the absence of government control;  
(9) the practice of implementing adverse Dispute Settlement Body rulings, pursuant to 
Section 129 of the URAA, or other legal authority, such that unliquidated entries entered or 
withdrawn from the warehouse for consumption prior to the date of implementation of a 
Section 129 determination remain subject to assessment of duties pursuant to the original 
anti-dumping  duty determination or a rate hig her than a WTO consistent rate.  
2.1. Zeroing  
 
2.1.1. 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 did  not allow  the margin above normal value on  non-
dumped sales to offset the margin of dumping on sales below with margins below normal value.  
The USDOC has acknowl edged in each review use of its  zeroing methodology in the administrative 
determinat ions. Therefore, the dumping margin determined by the USDOC  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 modification specifically excluded application of the new 
practice to any of the completed annual reviews , including re views completed after that date.  
Thus, the margins of dumping calculated in the fifth, sixth  and seventh  administrative reviews  of 
Fish Fillets from the Socialist Republic of Viet Nam  were WTO inconsistent margins of dumping.  
This had the effect of the collection of duties based on WTO inconsi stent margins of dumping, 
collection of cash deposits of estimated antidumping duties based on WTO inconsistent margins of 
dumping, and, in the case of Vinh Hoan, the finding of margins of dumping when no such margins 
in fact existed.  With respect to Vinh  Hoan, this WTO inconsistent methodology prevented it from 
demonstrating the absence of dumping necessary to obtain a revocation of the antidumping duties 
as to Vinh Hoan.   
2.1.2. Legal Basis of Complaint  
Viet Nam considers the above -mentioned laws and pro cedures by the USDOC to be, as such and 
as applied on a continued and ongoing basis, inconsistent with  several provisions of the 
Anti-Dumping Agreement, GATT 1994, and the Marrakesh Agreement. In original investigations, 
periodic reviews, new shipper revie ws, sunset reviews, 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;  WT/DS536/2  
 
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  (3) Paragraph 9.4 of Article 9 of the Anti -Dumping Agreement because the USDOC 's use of 
the zeroing methodology results in the imposition 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 Agreement and Articles VI:1 and VI:2 of the GATT 1994 to 
the extent that the imposition and collection of the dutie s is inconsistent with the 
Anti-Dumping Agreement;  
(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 w here likelihood of 
continued dumping determinations are made using the zeroing methodology inconsistent 
with Articles 2.4 and 2.4.2 of the Anti -Dumping Agreement; and  
(6) Part I:2 of the Protocol of Accession of the Socialist Republic of Viet  Nam, WT/L/662 , 
15 November 2006 and Paragraphs 254 and 255 of the Report of the Working Party on 
Accession of Viet  Nam, WT/ACC/VNM/48 , 26 October, 2006.  
Viet Nam also considers that USDOC 's application of the above -mentioned laws and procedures in  
the periodic  reviews  here at issue to be inconsistent with the f ollowing provisions of the 
Anti-Dumping Agreement, GATT 1994, and the Marrakesh Agreement for the same reasons set out 
above:  
(1) Articles 1, 2.1, 2.4, 2.4.2, 9.1, 9.3, 11.1, and 11. 3 of the Anti -Dumping Agreemen t; 
(2) Article 18.4 of the Anti -Dumping Agreement and Article X VI:4 of the Marrakesh 
Agreement;  
(3) Articles VI:1 and VI:2 of the GATT 1994.  
There are numerous WTO Appellate Body and Panel decisions finding the original U.S. practice of 
zeroing to be WTO i nconsistent and its more recent application of zeroing in the context of 
targeted dumping and differential pricing to be similarly WTO inconsistent.  Indeed, both the Panel 
and the Appellate Body found the practice of zeroing to be "as such " WTO inconsiste nt in United 
States -Anti-Dumping Measures on Certain Shrimp from Viet Nam (DS429) . There is no longer any 
question that zeroing in anti -dumping calculations is inconsistent with U.S. WTO obligations.  
2.2. Timeliness of Vinh Hoan 's Request for Revocation  
 
2.2.1. Summary of Facts  
Based on having received de minimis  margins in the fifth and sixth administrative reviews, in the 
seventh review Vinh Hoan requested a revocation of the antidumping duties as to Vinh Hoan  based 
on the expectation that after the seventh administrative review it would have demonstrated the 
absence of continued dumping in three consecutive reviews with de minimis  margins of dumping.  
The US rejected Vinh Hoan 's request based on it being untimely under Department of Commerce 
regulation 19 CFR 351.222(e) which states that such a request should be made during the 
anniversary month of the anti -dumping order. At the time of the anniversary month of the seventh 
review , the US had not issued even a preliminary determination with respect to the sixth 
administrative review. The anniversary month for the seventh review was August 2010 while the 
preliminary determination in the sixth review was not issued until 9 September 2011. The final 
determination in the seventh review was not made until 330 days after Vinh Hoan made its 
request for revocation.  
2.2.2. Legal Basis of Complaint  
Articles 11.1 and 11.2 of the Agreement on the Implementation of Article VI of the GATT 1994 
permit the imposition of anti -dumping duties only  "as long as and to the extent necessary to 
counteract dumping. " A review of the need for the continued imposition of the duty may be 
initiated "upon request from any interested party. " The only timing require ment is that "a 
reasonable period of time has elapsed since the imposition of the definitive anti -dumping duty. " 
Under Article 11.2, a party may request a review at any time if it "submits positive information WT/DS536/2  
 
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  substantiating the need for a review. " Article s 11.1 and 11.2 do not link periodic reviews with 
reviews seeking revocation of anti -dumping duties by a party. While there is no prohibition on 
making a determination of whether or not it continues to be necessary to impose anti -dumping 
duties on a party in the context of a periodic review, there is no basis in the Agreement for 
rejecting as untimely a request to review whether it continues to be necessary to impose anti -
dumping duties made during a periodic review. An authority may consider the request an d make a 
determination in the context of a periodic review or it may conduct a separate review.  Article 11.2 
provides no basis for rejection of a request to review whether it continues to be necessary to 
impose anti -dumping duties based on such a request being untimely.  
Article 11.4 specifies that "the provisions of Article 6 regarding evidence and procedure shall apply 
to any review carried out under this Article. " Paragraphs 81 -89 of the Report of the Appellate Body 
in United States – Anti-Dumping Measur es on Certain Hot -Rolled Steel Products from Japan  
provides an elaborate analysis of what constitutes a timely submissi on of information under 
Article  6 and Annex II of Agreement on the Implementation of Article VI of the GATT 1 994. 
A request for revocatio n made 330 days before the final determination in a periodic review is 
simply not an untimely request. It provided the US more than a reasonable period of time to 
examine and rule on the request.  
The US action was taken pursuant to Commerce Department regu lations 351.222 and 351.213 and 
Samsung Electronics v. United States,  946 F. Supp5 (CIT 1996).  
2.3. Viet Nam-Wide Entity Rate Based on Adverse Facts Available  
 
2.3.1. Summary of Facts  
The USDOC has applied a Viet  Nam-wide entity rate based on adverse fact s available throughout 
the anti -dumping proceedings identified above. For countries identified as non -market economy 
countries, the USDOC requires that respondent companies  apply for separate rates; those that fail 
to do so or do not meet the separate rate  criteria are given the "Viet Nam-wide entity rate " as 
established by USDOC. Even a company that timely and fully responds to the questions posed by 
USDOC will be assigned this Viet  Nam-wide entity rate if it does not meet the criteria for a 
separate rate established by the USDOC.   
Companies that do not receive a separate rate are assigned the Viet Nam -wide entity rate. In the 
proceedings at issue, the USDOC assigned a Viet Nam -wide entity rate based entirely on adverse  
facts available, even where companies responded timely and fully to the questionnaires issued by 
USDOC. The effect of this action is to assign highly prejudicial and unjustifiable rates to companies 
that do everything in their control to comply with USDOC  requests.  
These calculations and methodologies are applied pursuant, in particular, to the following United 
States laws and measures:  
(1) Tariff Act of 1930, as amended, Sections 771(18)(C)(i), 776(a)(2), and 776(b);  
(2) Import Administration Antidumping Manual, Chapter 10, "Non-Market Economies. " 
2.3.2. Legal Basis of Complaint  
In the anti -dumping proceedings at i ssue, the United States applied the laws and methodologies 
described above with regard to calculation of a Viet Nam -wide entity rate, which Viet  Nam 
considers to be inconsistent, as such and as applied , on a continued and ongoing basis, with the 
obligations of the United States under the Anti -Dumping Agreement. Specifically, Viet Nam 
considers these measures to be inconsistent with the following p rovisions of the Anti -Dumping 
Agreement.  
(1) Articles 2 and 9 of the Anti -Dumping Agreement because these Articles determine the 
basis for calculation of anti -dumping margins and the collection of anti -dumping duties and 
do not refer to the circumstances c ontemplated by the application of a Viet Nam -wide entity 
rate b ased on adverse facts available;  WT/DS536/2  
 
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  (2) Article 6.8 and Annex II of the Anti -Dumping Agreement because USDOC relied on 
adverse facts available for the calculation of the Viet Nam -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 relevant criteria for determining margins of du mping or the applica tion of adverse facts 
available;  
(3) Article 6.10 because the USDOC, in applying the Viet Nam -wide entity rate to multiple 
entities, failed in its obligation to determine individual margins of dumping. The only 
exception to this require ment 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 Agreemen t 
permits an authority to calculate a rate for individually investigated producers, a rate based 
on facts available for individually investigated producers that do not cooperate, and a 
separate, "all others " rate calculated based on the weighted average ma rgin of the 
individually investigated 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, Viet Nam -wide entity ; 
(6) Part I.2 of the Protocol of Accession  of the Socialist Republic of Viet  Nam, WT/L/662 , 15 
November 2006 and Paragraphs 527, 254 and 255 of the Report of the Working Party on 
Accession of Viet  Nam, WT/ACC/VNM/48 , 27 October 2006 because the terms of Viet  Nam's 
accession to the WTO do not per mit the application of such a Viet Nam -wide entity rate 
unless otherwise provided for u nder the Anti -Dumping Agreement;  
Viet Nam also considers that USDOC 's application 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 X VI:4 o f the Marrakesh Agreement;  
(8) Articles VI:1 and VI:2 of the GATT 1994.  
The USDOC separate rate practice has been found to be WTO inconsistent "as such " (DS429) and 
"as applied " (DS404).  
2.4. Section 129 of the Uruguay Round Agreements Act ( "URAA ") and Oth er Statutory 
Authority to Implement Adverse Findings Against the US in a Manner Consistent With US 
WTO Obligations  
2.4.1. Summary of Facts  
Section 129 of the URAA is the mechanism by which the United States implements adverse 
findings by the DSB. The law a ssigns responsibility to the United States Trade Representative, the 
USDOC and the ITC for implementing adverse decisions in a manner consistent with US 
international obligations.   However, neither section 129 nor any other provision of U.S. law permits 
US implementation consistent with its WTO obligations.  
The law contains unambiguous language on the effect  of a Section 129 determination. The statute 
requires that "Determinations….shall apply with respect to unliquidated entries of the subject 
merchandise that are entered or withdrawn from warehouse, for consumption on or after…the date 
on which the Trade Representative directs the administering authority…to implement that 
determination. " This understanding is confirmed by the Statement of Administrative Ac tion WT/DS536/2  
 
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  ("SAA"), which has been properly recognized as a definitive 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 authori tative 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 av ailable for purposes of interpreting the language of the URAA. The 
statute, on its own, is quite clear on the limited effect of Section 129 determinations for entries 
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 assessment, with 
the discretion to adjust all of the final duty liability on  unliquidated entries  pursuant to the results 
of a section 129 proceeding . 
In the course of DS 429, the US claimed it had other legal authority to adjust the final duty liability 
on unliquidated entries.  However, in the settlement of the issue of duty refunds after the decision 
in DS429 the US was unable to find legal authority to allow it to fully  refund the unliquidated 
entries as re quired by its WTO obligations. Rather, the "settlement " required a portion of the 
amount due to be refunded to be paid to both the US and to petitioners.  US claims to the contrary, 
the US does not have authority to ful ly refund unliquidate d entries as required by it 
WTO obligations.  
This practice is applied pursuant, in particular, 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. 103 -316, vol. 1;  
(3)  notwithstanding its claims to the contrary in DS429, the absence of any legal authority 
under U.S. law to fully refund unliquidated entries in a WTO consistent manner, as 
illustrated by the settlement agreement in DS429.  
2.4.2. Legal Basis of Complaint  
Because the United States has acted in the manner just described, Viet Nam considers these 
provisions to be inconsistent, as such, with certain WT O 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 Agreement, to the extent that an anti -dumping measure is 
applied despite imp osition 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 colle ct anti -dumping duties at a level known to 
be in excess of the appropriate amount.  
(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 Agreement, to the extent that the anti -dumping duty 
order remains in effect, and anti -dumping duties continue to be collected, beyond the period 
necessary t o 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.  WT/DS536/2  
 
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  3.    REQUEST  
Viet Nam hereby respectfully requests that a panel 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 Agreemen t. 
 
 
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