WT/DS404/R 
Page E-1 
 
 
   
 
ANNEX E 
 
 
EXECUTIVE SUMMARIES OF THE SECOND WRITTEN 
SUBMISSIONS OF THE PARTIES 
 
 
Contents Page 
Annex E-1 Executive Summary of the Second Written Submission of 
Viet Nam E-2 
Annex E-2 Executive Summary of th e Second Written Submission of the 
United States E-11 WT/DS404/R  
Page E-2 
 
 
  ANNEX E-1 
 
 
EXECUTIVE SUMMARY OF THE SECOND 
WRITTEN SUBMISSION OF VIET NAM 
 
 
I. INTRODUCTION 
 
1. Viet Nam sets forth several claims in conn ection with the three measures at-issue in this 
dispute:  the continued use of the challenged practices, the final determination of the second 
administrative review, and the final determina tion of the third administrative review.   
 II. STANDARDS APPLICABLE TO THE PANEL'S CONCLUSIONS AND 
RECOMMENDATIONS 
 2. The claims raised in this dispute involve th e United States' interpretation of the facts on the 
evidentiary record and the United States' interpretation of the applicable WTO obligations.  With 
respect to the Panel's assessment of the facts, Artic le 17.6(i) requires the Panel to determine whether 
the authority's establishment of the facts was "proper" and its evaluation of those facts was "unbiased 
and objective."  The balance of the Panel's inquiry in volves interpretation of various provisions of the 
Anti-Dumping Agreement.  Article 17.6(ii) provides that such interpretati ons should be made in 
"accordance with customary rules of interpretation of public international law."  The principles of 
treaty interpretations are set forth in Articles 31 and 32 of the Vienna Conventio n.  Article 31 contains 
three core principles:  that a treaty must be interpreted in "good faith," "in accordance with the 
ordinary meaning to be given to the terms of the tr eaty in their context" and in light of the treaty's 
"object and purpose."  All three conditions must be  followed.  Article 32 of the Vienna Convention 
further informs the rules of treaty interpretation by  permitting recourse to supplementary materials if 
an interpretation based on Article 31 either leaves the "meaning ambiguous or obscure" or "leads to a 
result which is manifestly absurd or unreasonable."  Thus, we would note that the concept of whether 
an interpretation is "reasonable" is part of the cu stomary rules of interpretation as provided for in the 
Vienna Convention.  
3. Because this proceeding arises under the U nderstanding on Rules and Procedures Governing 
the Settlement of Disputes (DSU), Viet Nam would further note that the object and purpose of the DSU is also relevant to the interpretation of the Anti-Dumping Agreement.  In this regard, we would 
note that "security and predictability" cannot be achieve d if different interpretations of the same rules 
are applied from proceeding to proceeding.    III. CLAIMS REGARDING THE USDOC'S USE OF THE ZEROING METHODOLOGY 
TO CALCULATE THE MARGINS OF DUMPING FOR INDIVIDUALLY INVESTIGATED RESPONDENTS 
 
A. T
HE USE OF THE ZEROING METHODOLOGY TO CALCULATE THE MARGINS OF DUMPING FOR 
THE INDIVIDUALLY INVESTIGATED RESPONDENTS IS , AS SUCH, INCONSISTENT WITH 
ARTICLE  9.3 OF THE ANTI-DUMPING AGREEMENT AND ARTICLE VI:2  OF THE GATT  1994 
 
4. The USDOC's use of zeroing to calculate the margins of dumping for the mandatory 
respondents in the second and third administrativ e reviews was, as such, inconsistent with 
United States obligations.  Viet Nam has demons trated as a factual matter in the first written 
submission that the USDOC engaged in the same simple zeroing procedure during the second and WT/DS404/R 
Page E-3 
 
 
  third administrative reviews that has been repeatedly found by the Appellate Body to be as such 
inconsistent with the Anti-Dumping Agreement.   
 5. Viet Nam submits that the Appellate Body 's findings on (1) the zeroing procedure as a norm 
subject to an "as such" claim
1 and (2) the inconsistency of the zeroing procedure with United States 
obligations2, are determinative for this claim.  An incons istency found by the Appellate Body to be an 
as such violation relates to the authority's use of th e practice itself and is not specific to the facts of 
any particular dispute.  By their nature, as such cl aims are of general and pr ospective application, and 
the Appellate Body's finding concerns the author ity's ongoing failure to bring the practice into 
conformity with clearly established obligations.  Re peated determinations by the Appellate Body on 
the inconsistency of a practice create obligations that Members are entitled to rely upon.  Indeed, 
Article 3.2 of the Dispute Settlement Understanding promotes the "security and predictability" of the 
dispute settlement process.  The United States ha s an obligation, per th e cited Appellate Body 
determinations, to cease the simple zeroing practice in the context of administrative reviews.  The 
United States' failure to do so violates Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of 
the GATT 1994.   
 B. T
HE USE OF THE ZEROING METHODOLOGY TO CALCULATE THE MARGINS OF DUMPING FOR 
THE INDIVIDUALLY INVESTIGATED RESPONDENTS (1) ON A CONTINUED AND ONGOING BASIS 
SINCE IMPOSITION OF THE ANTI-DUMPING DUTY ORDER AND (2) IN THE SECOND AND 
THIRD  ADMINISTRATIVE REVIEWS IS , AS APPLIED , INCONSISTENT WITH THE ANTI-DUMPING 
AGREEMENT  
 6. Based on the factual record in this dispute, the Panel should conclude that the United States 
acted inconsistently with its obligations under Articles 2.1, 9.3 and 2.4 of the Anti-Dumping 
Agreement and Article VI:2 of the GATT 1994.  Th e factual record demonstrates that the USDOC 
engaged in zeroing – model zeroing in the original in vestigation and simple zeroing in the subsequent 
administrative reviews – since imposition of the shrimp antidumping duty order.
3  Article 9.3 requires 
that the margin of dumping "as established under Ar ticle 2" serve as the ceiling when determining the 
maximum antidumping duty to be applied to an ex porter.  Thus, prior to reaching the additional 
obligations regarding duty assessment contained in Article 9.3, the authority must calculate the 
margin of dumping in accordance with Article 2.  The USDOC has failed to do so by systematically 
excluding certain transactions from the margin of du mping calculation:  the USDOC did not calculate 
a dumping margin for the product.  Article 2.1 of the Anti-Dumping Agreement and Articles VI:1 and VI:2 of the GATT 1994 provide the definiti ons of "dumping" and "margin of dumping," 
clarifying the meaning of these terms in relation to the product as a whole.  Contrary to the clear 
language of Article 9.3, the USDOC has for each of the measures at issue failed to determine a margin 
of dumping for the individually investigated respondents "as established under Article 2."  
 
7. The United States' arguments to the contrary are unavailing.  Two related points raised by the 
United States – that dumping may be found at the in dividual, transaction level and that a margin of 
dumping need not be calculated for the product as a w hole – have been repeatedly rejected by the 
Appellate Body.  The Appellate Body has interpre ted the terms "dumping" and "margin of dumping" 
contrary to the United States' interpretation in a resounding fashion.  To ensure predictability and 
security in the dispute settlement process, the Pa nel must recognize the now settled definitions of 
these concepts.   
 
                                                      
1 Appellate Body Report, United States – Measures Relating to Zeroing and Sunset Reviews , 
WT/DS322/AB/R, adopted 23 January 2007, DSR 2007:I, 3;  Appellate Body Report, United States – Final 
Anti-Dumping Measures on St ainless Steel from Mexico , WT/DS344/AB/R, adopted 20 May 2008. 
2 Id. 
3 Viet Nam's First Written S ubmission at paras. 46 to 48 and accompanying exhibits. WT/DS404/R  
Page E-4 
 
 
  8. The United States' third argument concerns th e phrase "during the investigation phase" found 
in Article 2.4.2.  Viet Nam believes that the or dinary meaning of Article 2.4.2 makes clear its 
application to all investigations conducted by  an authority during an antidumping proceeding.4  Please 
see Viet Nam's Answers to Panel Questions at paras.  34 to 40 for a detailed discussion of the meaning 
of the phrase "during the investigative phase."   
 IV. CLAIMS REGARDING THE USDOC'S CALCULATION OF THE ALL OTHERS 
("SEPARATE") RATE IN THE SECOND AND THIRD ADMINISTRATIVE REVIEWS 
 
9. Viet Nam advances two independent claims rega rding the all others ("separate") rate applied 
in the second and third administrative reviews:  that (1) the USDOC's use of margins of dumping 
calculated using the zeroing methodology for the pur pose of determining the ceiling rate and (2) the 
USDOC's failure to calculate an all others rate in the second and third administrative reviews that 
reflected the calculated dumping margins of the individually investigated respondents or was 
otherwise supported by the evidence, viol ate the United States' WTO obligations.  
 A. A
 CEILING ALL OTHERS RATE CALCULATED USING MARGINS OF DUMPING DETERMINED 
WITH THE ZEROING METHODOLOGY IS INCONSISTENT WITH THE ANTI-DUMPING AGREEMENT  
 10. The USDOC's use of margins of dumping calculated using the model zeroing methodology 
during the original investigation as the basis for dete rmining the all others rate  in the second and third 
administrative reviews violates Articles 9.3, 9.4, an d 2 of the Anti-Dumping Agreement.  Article 9.4 
requires that the "margins of dumping" identified in  the Article be used to determine the maximum 
amount of antidumping duties that can be applied to companies not selected for individual 
examination.  The reliance on the "margins of dum ping" determined for individually investigated 
companies necessarily requires that these margins of dumping be calculated in a manner consistent 
with Article 2 of the Anti-Dumping Agreement, as the definition of "dumping" in Article 2.1 
explicitly governs all provisions of the Agreement.   
 
11. As explained previously by Viet Nam, the phrase "margin of dumping" is defined by 
Article 2.1 of the Anti-Dumping Agreement and Artic le VI:2 of the GATT 1994.  To be consistent 
with Article 9.4, the margins of dumping that ser ve as the basis for calculating the ceiling all others 
rate must be consistent with the definition an d requirements on the calculation of dumping margins 
found in Article 2.  Article 2.4.2 of the Anti-Du mping Agreement requires that the margin of dumping 
be calculated based on a comparison of "all comparab le export transactions."  Yet, as the Appellate 
Body has found repeatedly – and as the United States has apparently conceded in other disputes – the 
model zeroing methodology used in the original in vestigation does not produce a dumping margin for 
the product as a whole, which considers all transactions.
5  The USDOC's reliance on these margins of 
dumping first calculated in the original investig ation for the purpose of calculating the ceiling all 
others rate applied in the second and third admini strative reviews violates Articles 9.3 and 9.4 of the 
Agreement.   
 
                                                      
4 For a more detailed discussion of the meaning of the phrase "during the investigative phase" please 
see Viet Nam's Answers to Panel Questions at paras. 34 to 40. 
5 The United States has declined to appeal these Panel determinations in the following disputes:  See 
Panel Report, US – Stainless Steel (Mexico) , at para. 7.15.  See also Panel Report, United States – Anti-Dumping 
Measures on Polyethylene Retail Carrier Bags from Thailand , WT/DS383/R, adopted 18 February 2010 at 
para. 3.3;  Panel Report, United States – Anti-Dumping Measure on Shrimp from Ecuador , WT/DS335/R, 
adopted on 20 February 2007, DSR 2007:II, 425 at para. 3.2; Panel Report, US – Continued Zeroing , at 
para. 7.104;  Panel Report, United States – Measures Relating to Shrimp from Thailand , WT/DS343/R, adopted 
1 August 2008, as modified by Appellate Body Report WT/DS343/AB/R, WT/DS345/AB/R at para. 7.16. WT/DS404/R 
Page E-5 
 
 
  12. The United States' argument that the Panel s hould not consider the actions of the USDOC in 
the original investigation because it was complete d prior to Viet Nam's accession to the WTO is 
unavailing, as the relevance of the original inv estigation to the second and third administrative 
reviews is a direct result of the USDOC's chosen actions.6  Viet Nam does not request the Panel in this 
dispute to consider the final results of the original  investigation.  Instead, Viet Nam requests that the 
Panel evaluate the USDOC's final determinations in the second and th ird administrative review for the 
all others rate.  Under the reasoning advocated by the United States, the USDOC could continue to 
apply indefinitely WTO-inconsis tent determinations, so long as the determinations remained 
unchanged since accession to the WTO.  Such a r esult is contrary to the benefits assumed upon 
accession to the WTO.   
 B. A
N ALL OTHERS RATE ASSIGNED BASED ON A PRIOR SEGMENT OF THE ANTI-DUMPING 
PROCEEDING IS INCONSISTENT WITH THE ANTI-DUMPING AGREEMENT  
 13. The USDOC violated Article 9.4 of the Anti-Dumping Agreement when it assigned a rate to 
the separate rate respondents based on the margins of dumping of a prior segment of the proceeding in 
the second and third administrative reviews.
7  In the second administrative review, the USDOC 
calculated a margin of dumping for the mandatory respondents of 0.01 and 0.00 percent, but applied 
an all others rate well in excess of the margins calculated for the individually examined respondents 
of 4.57 percent.  In the third administrative review, the USDOC applied the same reasoning in 
assigning a rate of 4.57 percent for the final dete rmination, despite mandatory respondent dumping 
margins of zero or de minimis . 
 14. While recognizing that the Appellate Body has ye t to define the exact nature of the obligation 
imposed on an authority where all individually examined respondents receive margins of dumping 
that are zero, de minimis , or based on facts available, as an initial matter, Article 9.4 prohibits 
companies not selected for individual examination from being prejudiced by the assigned 
antidumping duty.
8  It is thus incumbent upon the Panel to analyze whether the all others rate assigned 
in the second and third administrative reviews to the separate rate respondents prejudices those 
entities relative to the individually examined resp ondents.  There can be little question that the 
USDOC's decision to assign a rate based on dumping be havior that is up to four years old prejudices 
separate rate companies.  While  the mandatory respondents have no requirement to make cash 
deposits for entries of subject merchandise, the no n-examined companies must continue to pay a 
4.57 percent cash deposit for imports to the United States.    
15. Viet Nam also believes that the ordinary mean ing of Article 9.4 and the relevant context make 
clear an authority's obligation to use contemporan eous sales information and calculated margins of 
dumping when calculating the all others rate.  The firs t sentence of Article 9.4 clarifies that the Article 
applies only where the authority has limited the numbe r of entities subject to individual investigation, 
cross-referencing Article 6.10.  This reference to Article 6.10 establishes a link between the all others 
rate and the selection process for the contemporane ous segment of the proceeding.  Subsection (i) 
reinforces this element of contemporaneity by identi fying the "selected exporters or producers" as the 
calculated margins to be used in Article 9.4 calcula tions.  The Article does not permit an authority to 
go back and select margins of dumping from a prior seg ment;  doing so would fail to take into account 
the industry's response to imposition of the antidum ping duty order.  Articles 9.3 and 2.4 provide 
further support for this understanding of the a ll others rate.  Article 9.3 establishes the 
contemporaneity requirement by linking (1) the margin of dumping calculated for a period of time 
                                                      
6 Please refer to Viet Nam's Answers to Panel Questi ons at paras. 46 to 48  for further discussion. 
7 Viet Nam's First Written Submission at paras. 216 to 228;  Opening Statement of Viet Nam at 
paras. 52 to 57;  Viet Nam's Answers to Panel Questions at paras. 51 to 63. 
8 Appellate Body Report, United States – Anti-Dumping Measures on Certain Hot-Rolled Steel 
Products from Japan , WT/DS184/AB/R, adopted 23 August 2001, DSR 2001:X, 4697 at para. 123. WT/DS404/R  
Page E-6 
 
 
  pursuant to Article 2 and (2) the amount of the antidumping duty imposed for that same period of 
time.9  Further, Article 2.4 requires an authority to  determine a dumping margin "in respect of sales 
made at as nearly as possible the same time ."  The Article recognizes the importance of 
contemporaneity when making an export price to normal value comparison, making explicit the 
understanding that market conditions  and importer behavior are dyna mic in nature and can change 
considerably with time.  This concept cannot be  limited to companies chosen for individual 
investigation:  the principle applies with equal for ce to rates calculated pursuant to Article 9.4.   
 16. The USDOC's assigned all others rates in th e second and third administrative reviews also 
violate Article 17.6(i) of the Anti-Dumping Agreemen t, which requires that authorities evaluate facts 
on the record in an "unbiased" and "objective" manne r.  The actions of the individually investigated 
exporters in the second and third administrative re views, all of whom eliminated their dumping 
behavior, constitutes the entirety of the evidence available on the response of exporters to the 
antidumping duty order.  The USDOC had no basis to conclude that the margin of dumping for all other producers equalled 4.57 percent.   
 
17. The United States' arguments to the contrary are unavailing.  Article 9.4 itself and in tandem 
with Article 2.4 require contempor eneity in the calculation of dumping margins, an obligation ignored 
in this instance through use of margins based on sa les and cost information from up to four years 
prior.  Further, the United States ignores the text of  Article 17.6(i), which demands that authorities act 
in a reasonable and fair manner based on the facts pr esented:  the United States can cite to no facts on 
the record of the second or third administrative re view to support the USDOC's assessment of an all 
others rate of 4.57 percent.  V. THE USDOC'S APPLICATION OF ADVERSE FACTS AVAILABLE TO AN 
ENTITY NOT INDIVIDUALLY INVESTIGATED – THE VIETNAM-WIDE ENTITY 
– IS INCONSISTENT WITH THE ANTI-DUMPING AGREEMENT 
 
18. Based on the factual record in this dispute, the Panel should conclude that the United States 
acted inconsistently with its obligations under Ar ticles 9.4, 17.6(i), and 6.8 and Annex II of the 
Anti-Dumping Agreement.  First, the USDOC determin ations are inconsistent with Article 9.4 of the 
Anti-Dumping Agreement.  Article 9.4 – exclus ively – governs the antidumping duty applied to 
companies not selected for individual examination.  In both the second and third administrative 
reviews, the USDOC limited examination to on ly two companies, prompting application of 
Article 9.4.  Based on the ordinary meaning of Article 9.4, the Vietnam-wide entity should have 
received a rate no greater than the weighted aver age margin of dumping for the selected companies, 
excluding zero, de minimis , or facts available rates.  Instead, the USDOC assigned the Vietnam-wide 
entity a rate of 25.76 percent based entirely on fact s available. This exceeds the weighted margin of 
dumping for the selected companies and is therefore inconsistent with Article 9.4.   
 19. Second, Article 6.8 permits the application of facts available where an interested party 
"refuses access to, or otherwise does not provide, necessary information."  Taken together, the phrase 
means that an administering authority may only appl y facts available pursuant to Article 6.8 where it 
requested facts from an interested party and calcu lating a margin of dumping or otherwise conducting 
the investigation "cannot be ... done without" the requ ested information.  With regard to the second 
administrative review, if the aggregate sales in formation requested from the parties constituted 
"necessary information" the USDOC could not have reached a final determination in the 
third administrative review, where the USDOC did not  request this information from any interested 
parties.  Yet, the USDOC did calculate margins of dumping for the mandatory respondents in the 
third administrative review and made no mention of any difficulty caused by the USDOC's decision to 
not request the quantity and value information from the interested parties.  For the third administrative 
                                                      
9 Please see Viet Nam's Answers to Panel Questions at para. 55 for further discussion. WT/DS404/R 
Page E-7 
 
 
  review, the USDOC apparently does not dispute th e claim that the USDOC did not request "necessary 
information" from the Vietnam-wide entity.  Accord ingly, the USDOC's application of a rate based on 
adverse facts available to the Vietnam-wide entity  in the third administrative review violates 
Article 6.8 and Annex II of the Anti-Dumping Agreement.   
 
20. The United States' arguments in opposition to these conclusions are unavailing.  First, the 
United States contends that the nonmarket nature of Viet Nam's economy, as discussed in Viet Nam's 
Working Party Report, justifies differential treatment of the Vietnam-wide entity from other entities.  Yet, this argument ignores the plain text of Articles 9.4 and 6.8 of the Anti-Dumping Agreement, 
neither of which provide for the distinctions the Unite d States attempts to unilaterally add to the text 
of these provisions.    
21. The United States next disagrees on whether the USDOC did in fact request quantity and 
value information from the "Vietnam-wide entity" in the second or third administrative reviews.  The 
initiation notice for the second administrative review, found at Exhibit Viet Nam-12, lists all 
companies to which the USDOC sent the quantity and value questionnaire.
10  Note that a 
"Vietnam-wide entity" is not listed.  This is becau se the USDOC did not know if this "Vietnam-wide 
entity" existed at the time it sent the questionnaire, let alone the sub-entities.  The Vietnam-wide 
entity is only "created" by the USDOC once it determ ines later in the investigation that certain 
companies have failed to overcome the USDOC's pres umption of government control.  Thus, neither 
the "Vietnam-wide entity" nor any of its sub-entiti es were sent a quantity and value questionnaire;  
rather, it was only by subsequent  operation of the USDOC's presumption of government control that 
certain entities were later classified as part of the Vietnam-wide entity.   
22. Viet Nam believes that the USDOC's presu mption results in a factual determination 
inconsistent with Article 17.6(i) of the Anti-Du mping Agreement.  The USDOC does not gather any 
information or evidence from which it could de termine the existence of affiliation among the 
non-investigated entities.  The USDOC has no in formation to support th e determination, and 
admittedly does so only on the basis of the impermissible presumption.    VI. THE USDOC'S LIMITED SELECTION OF MANDATORY RESPONDENTS 
DEPRIVES VIETNAMESE PRODUCERS OF SUBSTANTIVE RIGHTS GUARANTEED IN THE ANTI-DUMPING AGREEMENT AND IS INCONSISTENT 
WITH THE ANTI-DUMPING AGREEMENT 
 
23. The Panel should conclude that the United St ates acted inconsistently with its obligations 
under Articles 6.10, 9.3, 11.1, and 11.3 of the Anti-Dumping Agreement. The USDOC's application 
of Article 6.10 in the imposition and collection of antidumping duties under Article 9.4 is inconsistent 
with the Anti-Dumping Agreement, as it depriv es respondents of substantive rights provided by 
Articles 11.1, 11.3, and 9.3.  Article 6.10 pe rmits an authority to limit the number of entities 
individually examined where the individual investig ation of all entities requesting examination would 
be impracticable.  Viet Nam does not challenge the USDOC's authority to limit the number of 
companies examined.  Viet Nam submits, however, that the USDOC must implement Article 6.10 to 
ensure that those producers are not denied rights contained in Articles 11.1, 11.3, or 9.3.  The factual 
record demonstrates that the USDOC has limited the number of companies subject to individual 
examination in a manner inconsistent with  the terms of the Anti-Dumping Agreement.
11  Further, the 
                                                      
10 Notice of Initiation , 72 Fed. Reg. 17095, 17099 (6 April 2007).  (Exhibit Viet Nam-12). 
11 Please see paragraph 71 of Viet Nam's First Written Submission for a chart detailing for each 
administrative review the number of companies for which the USDOC initiated a review, the number of 
companies eligible for individual investigation, an d the number of companies selected for individual 
investigation. WT/DS404/R  
Page E-8 
 
 
  USDOC repeatedly discouraged companies from participating as voluntary respondents in the 
administrative reviews.12 
 24. First, the USDOC has applied Article 6.10 in a manner that produces results inconsistent with 
Article 11.1 of the Anti-Dumping Agreement.  Artic le 11.1 requires that an antidumping duty remain 
in place "only so long as and to the extent necess ary to counteract dumping."  Yet the USDOC's 
limited selection procedure makes impossible an entity' s ability to demonstrate the extent to which the 
antidumping duty remains necessary because the USDOC has no evidence of the dumping behavior of companies not individually examined.  In a related manner, the USDOC's application of Article 6.10 
restricts the rights of respondent parties granted under Article 11.3.  Certain companies denied the 
ability to participate in the administrative reviews have no ability to meet the "no likelihood of continued dumping" standard.  Instead, the US DOC assumes a dumping margin for those companies 
equal to the separate rate or Vietnam-wide entity ra te assigned in each of the administrative reviews.   
 25. The impact of the USDOC's improper appli cation of Article 6.10 on rights guaranteed to 
respondent parties under Article 9.3 further illustra tes the inconsistency in the USDOC's actions.  
Article 9.3 states that "[t]he amount of the antidumping duty shall not exceed the margin of dumping as established under Article 2."  Despite the clear re quirements contained in this sentence, throughout 
the course of the shrimp antidumping proceeding the USDOC has not established any relationship 
between the amount of the antidumping duties assessed on non-individually examined respondents and the margin of dumping for that respondent.   
 
26. Lastly, the USDOC denied certain respondent companies of the opportunity to participate as voluntary respondents in violation of Article 6.10.2.  The USDOC's actions with regard to voluntary 
responses fit squarely within the definition of disc ouraging behavior explicitly prohibited by the last 
sentence of Article 6.10.2.  First, the standard applied by the USDOC discourages voluntary responses 
by interested parties.  Second, the actions taken – or rather, not taken – by the USDOC are in violation 
of Article 6.10.2.  In the third administrative re view, an exporter of subject merchandise not selected 
for individual investigation requested treatment as a voluntary respondent in meetings with USDOC 
officials and through written submissions, yet th e record does not indicate whether the USDOC ever 
responded directly to the company.  In the fourth administrative review, where two companies actually submitted all of the information necessary to calculate a dumping margin, the USDOC again 
refused to treat the companies as voluntary responde nts;  instead treating the companies as separate 
rate respondents.  These actions indicate a disr egard for companies seeking treatment as voluntary 
respondents.   
 
27. The United States argues that Articles 11.1 and 11.3 of the Anti-Dumping Agreement do not impose company-specific obligations on an authority.  Viet Nam addr essed this issue in greater detail 
in response to question 45 of the Panel's questions, a nd refers the Panel to that response.  Viet Nam 
would like to simply impress upon the Panel that th e words of Article 11.1 and 11.3 must be given 
meaning.  The United States cannot unilaterally choose to ignore and label as ineffective provisions of 
the Anti-Dumping Agreement with which it disagrees.  Members agreed to the terms of these Articles 
and they must be given effect.   
 
28. Viet Nam would like to make the following a dditional observations.  First, Article 31 of the 
Vienna Convention requires that the object and purpo se of the entire treaty at issue be considered 
when interpreting the terms of any particular provisi on of the treaty.  Thus, Articles 6.10 and 9.4 must 
                                                      
12 See "Request for the Department to Comply with its Regulations Regarding Revocation of 
Antidumping Duty Orders," dated 8 October 2008 at 6.  (Exhibit Viet Nam-62);  Certain Frozen Warmwater 
Shrimp from the Socialist Republic of Vietnam: Pr eliminary Results, Partial Rescission and Request for 
Revocation, in part, of the Fourth Administrative Review , 75 Fed. Reg. 12206, 12207 (15 March 2010).  
(Exhibit Viet Nam-22). WT/DS404/R 
Page E-9 
 
 
  be interpreted in the context of the object and pur pose of the Anti-Dumping Agreement.  Interpreting 
Articles 6.10 and 9.4 to read out of the Agreemen t other obligations is not  consistent with the 
requirements of Article 31 of the Vienna Convention.   
29. Further, the USDOC has been aware of the in sufficiency of its resources to permit individual 
investigation of all exporters and producers si nce 2003, yet has done nothing to address this 
insufficiency.  Nor has it take n any steps to reconcile the u se of the exception provided in 
Articles 6.10 and 9.4 with its obligations under Artic les 9.3, 11.1, and 11.3.  These dual failures have 
resulted in the loss of significant rights of the exporters and producers provided under the Anti-Dumping Agreement.  To absolve the Unite d States of any responsibility either to devote 
additional resources to the implementation of the An ti-Dumping Agreement or to reconcile its use of 
the exception in Articles 6.10 and 9.4 with its ot her obligations under the Agreement is to render 
meaningless the disciplines impo sed by the Agreement.   
 
VII. CONSEQUENTIAL CLAIM OF VIOLATIONS OF WTO OBLIGATIONS 
 30. As discussed above, the USDOC's actions with  regard to the challenged conduct – the use of 
zeroing, the all others rate determination, the Vi etnam-wide entity determination, and the limited 
investigation of respondents – will  have a consequential impact on the USDOC's five-year sunset 
review determination, such that the USDOC cannot r each a final determination in the five-year sunset 
review that is consistent with the requi rements of the Anti-Dumping Agreement.   
 VIII. CONCLUSION 
 
31. For the reasons set forth above, we request that the Panel find: 
 
1) That the application of zeroing to individually investigated respondents in the second 
and third administrative reviews, and its continued application in the subsequent 
reviews, is inconsistent with Articles 9.3,  2.1, 2.4.2, and 2.4 of the Anti-Dumping 
Agreement and Article VI:2 of the GATT 1994.  
 
2) That the USDOC's zeroing methodology is, as such, inconsistent with Article 9.3 of 
the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.   
 
3) The use of margins of dumping determined using the zeroing methodology to 
calculate the all others ("se parate") rate in the second a nd third administrative reviews 
is, as applied, inconsistent with Articles 9. 4, 9.3, 2.4.2 and 2.4 of the Anti-Dumping 
Agreement.  
 
4) Application of an all others ("separate") ra te that fails to consider the results of the 
individually investigated respondents in the contemporaneous proceeding and produces an antidumping duty prejudicial to companies not selected for individual 
investigation is, as applied in the sec ond and third administrative reviews, 
inconsistent with Articles 9.4, 17.6(i), a nd 2.4 of the Anti-Dumping Agreement.   
 
5) The application of an antidumping duty based on adverse facts available to the 
Vietnam-wide entity in the second and third administrative reviews, and its continued 
application in subsequent revi ews, is inconsistent with Articles 6.8, 9.4, 17.6(i) and 
Annex II of the Anti-Dumping Agreement. 
 WT/DS404/R  
Page E-10 
 
 
  6) The USDOC's determinations in the sec ond and third administrative reviews, and on 
a continuing basis, to limit the number of individually investigated respondents such 
that they restrict certain substantive rights under the Anti-Dumping Agreement are inconsistent with Articles 6.10, 6.10.2, 9.3, 11.1, and 11.3 of the Anti-Dumping 
Agreement.   
 
32. Accordingly, Viet Nam further requests that  the Panel recommend that the United States 
immediately bring all such measures into conformity  with its obligations under Article VI of the 
GATT 1994 and the Anti-Dumping Agreement. WT/DS404/R 
Page E-11 
 
 
  ANNEX E-2 
 
 
EXECUTIVE SUMMARY OF THE SECOND WRITTEN  
SUBMISSION OF THE UNITED STATES 
 
 
I. INTRODUCTION 
 
1. This dispute, like all WTO disputes, presents questions about the interpretation of the covered 
agreements, but Vietnam has largely failed to artic ulate what specific obligations contained in the 
covered agreements it believes the United States h as violated.  Vietnam has referenced multiple 
provisions of the AD Agreement and the GATT 1994,  but has not provided a proper interpretive 
analysis of those provisions.  Vietnam's arguments do not provide a basis on which the Panel could 
sustain Vietnam's allegations that the United States  has acted inconsistently with any of its WTO 
obligations.   
 
2. This submission will not repeat all of the arguments advanced in the U.S. First Written 
Submission, in oral statements during the first subs tantive panel meeting, and in the U.S. responses to 
the Panel's written questions, though we  continue to rely on the arguments contained therein.  For the 
reasons we have already given, together with tho se we provide in this submission, the United States 
respectfully submits that the only conclusion to be drawn is that Vietnam's claims are without merit 
and must be rejected. 
 
II. VIETNAM'S CLAIMS OF INCONSISTENCY REGARDING "ZEROING" ARE 
WITHOUT MERIT 
 3. Vietnam has failed to demonstrate that any antidumping duties were applied in excess of the 
margins of dumping determined for individually ex amined exporters and producers in the second and 
third administrative reviews.  Vietnam has not s hown that zeroing had any impact on the calculated 
dumping margins for the individually examined exporte rs and producers in these reviews, all of which 
were determined to be zero or de minimis . 
 
4. Vietnam continues to offer no relevant eviden ce in support of its claims against the margins 
of dumping calculated for individually examin ed exporters/producers in the second and third 
administrative reviews.  Instead, Vietnam makes an  unsubstantiated assertion about the impact of the 
use of "zeroing" on the behavior of exporters/producers.  Even if Vietnam could provide evidence to 
support its assertion, there is no obligation in Artic le VI:2 of the GATT 1994 or Article 9.3 of the 
AD Agreement that addresses such an impact upon the behavior of exporters/producers.  
 
5. Vietnam also argues that the Panel should find it "relevant" that the "zeroing" methodology was "embedded" in Commerce's de terminations in the second and third administrative reviews.  This 
appears to be no more than another attempt at a form ulation that skirts the fact that the margins of 
dumping calculated for the individually examined companies were zero or de minimis  and avoids the 
actual language of the provisions of the covered agreements that are at issue.  To the extent that there 
is a prohibition on the use of a "zeroing" methodology in administrative reviews, such an obligation is 
found in Article 9.3 of the AD Agreement and Ar ticle VI:2 of the GATT 1994.  These provisions 
prohibit the imposition of antidumping duties in excess of the margin of dumping.  The fact that the 
"zeroing" methodology is embedded in a proceeding is  irrelevant unless it can be demonstrated that 
antidumping duties were applied in excess of the margin of dumping. 
 WT/DS404/R  
Page E-12 
 
 
  6. In response to the Panel's written questions, Vi etnam, for the first time in this dispute, has 
advanced arguments in support of an "as such " challenge against the use of "zeroing" in 
administrative reviews.  However, Vietnam has ad vanced no arguments and pointed to no evidence 
that would support a finding by the Panel that any "zeroing methodology" exists as a measure that can 
be challenged "as such."  Vietnam merely cites rep eatedly to prior panel and Appellate Body reports.  
Consequently, with respect to the so-called " zeroing methodology," Vietnam has not provided a 
sufficient evidentiary basis for th e Panel to make any findings regarding the precise content of any 
rule or norm, its nature as a measure of general a nd prospective application, and its attribution to the 
United States.   
 
7. Contrary to Vietnam's argument, the obligati on to make a "fair comparison" under Article 2.4 
does not create an obligation to provide for offsets.  Article 2.4 establishes an obligation that a fair 
comparison be made between norma l value and export price and provides detailed guidance as to how 
that fair comparison is to be made.  Article 2.4 recognizes that the normal value and export 
transactions to be compared may occur, inter alia , (a) with respect to mode ls with differing physical 
characteristics, (b) at distinct levels of trade, (c ) pursuant to different terms and conditions, and (d) in 
varying quantities.  The focus of Article 2.4 is on how the authorities are to select transactions for 
comparison and make appropriate adjustments for differences that affect price comparability.  
Vietnam's proposed interpretation of Article 2.4 – to encompass the aggregation  of comparisons 
between export price and normal value – is incons istent with prior panel and Appellate Body 
interpretations, and it is erroneous.  Article 2.4 does not apply to the aggregation  of comparisons.  
The open-ended approach inherent in Vietnam's in terpretation of Article 2.4 of the AD Agreement 
would result in disputes that are virtually impossibl e to resolve in any prin cipled, text-based way.  
 
8. Vietnam also argues that the Panel should fi nd that the prohibition on the use of "zeroing" 
during investigations that the Appellate Body h as identified in Article 2.4.2 of the AD Agreement 
applies in the context of administrative reviews.  The text of the AD Agreement, as well as prior panel 
and Appellate Body reports, does not support Vietna m's argument.  The Appellate Body and prior 
panels have recognized distinc tions between investigations and other proceedings under the 
AD Agreement, consistently finding that the provi sions in the AD Agreement with express limitations 
to investigations are, in fact, limited to the investigation phase of a proceeding.  The repeated 
recognition by panels and the Appellate Body of th e distinctions between i nvestigations and review 
proceedings is consistent with the distinct function of the investigation phase, which is to establish as 
a threshold matter whether the imposition of an antidumping duty is warranted.  Other phases (such as Article 9 assessment proceedings or Article 11 sunset  reviews) have different functions.  Whereas the 
function of an investigation is to determine whet her a remedy against dump ing should be provided, 
the function of an assessment proceeding is to de termine the precise amount of that remedy.  
 
9. The limited applicability of Article 2.4.2 could not be plainer.  Article 2.4.2, by its very terms, 
is limited to the "investigation phase."  Analyzing the text of Article 2.4.2, the panel in Argentina – 
Poultry Anti-Dumping Duties  recognized that the application of that provision is expressly limited to 
the investigation phase of an antidumping proceeding.   The express limitation of the obligations in 
Article 2.4.2 to the investigation phase is consiste nt with the differences in the antidumping systems 
applied by Members for purposes of the assessment phase.  The different methods used by Members 
include the use of prospective normal values, retrospective normal values, and prospective ad valorem  
duties.  If the obligations regarding comparison met hodologies found in Article 2.4.2 were applied to 
the assessment of antidumping duties, this divergen ce of assessment systems would not be possible.  
For example, it is not possible to reconcile the prospective normal value system used by some 
Members with a requirement to use either the average-to-average or transaction-to-transaction 
comparison methodology, because such systems compare weighted average normal values to 
individual export prices in order to assess antidumping duties on individual transactions.  Thus, to retain the flexibility for Members to apply different assess ment systems that is reflected in Article 9, it 
was necessary to limit the requirements of Article 2.4.2 to the investigation phase. WT/DS404/R 
Page E-13 
 
 
  10. Contrary to Vietnam's argument, Article VI:1 of the GATT 1994 and Article 2.1 of the 
AD Agreement do not define the "concepts" of "dum ping" and "margin of dumping" in relation to a 
"product as a whole".  The term "product as a whole" is not found anywhere in the GATT 1994 or the AD Agreement, and Vietnam's purportedly "textual" argument is divorced from the actual text of the 
relevant provisions.  Consistent with the customar y rules of treaty interpretation, the precise meaning 
of the terms "dumping" and "margin of dumping" in a particular provision must be informed by the 
context in which the term is used.  The terms "dumping" and "margin of dumping" are defined in 
relation to the term "product."  The ordinary meani ng of "product" may refer to a single transaction or 
multiple transactions.  Article 2.1 defines "dumpi ng" in relation to the terms "export price" and 
"normal value."  These fundamental concepts have  flexible meaning because "normal value" and 
"export price" could relate to either an individu al transaction or multiple transactions depending upon 
the context.  It would be illogical to conclude th at the term "dumping," whic h is derived from these 
flexible terms, may not itself have a similarly flexible definition.   
 
III. VIETNAM'S CLAIMS AGAINST THE RATES APPLIED TO COMPANIES NOT 
SELECTED FOR INDIVIDUAL EXAMINATION IN THE SECOND AND THIRD 
ADMINISTRATIVE REVIEWS ARE WITHOUT MERIT 
 11. Article 9.4 of the AD Agreement simply est ablishes the maximum antidumping duty that may 
be applied to companies not individually examined, in certain circumstances.  Article 9.4 does not 
prescribe a methodology for assigning a rate to compan ies not individually examined in an assessment 
review, and Article 9.4 does not prescribe the maximum  rate that may be applied to companies not 
individually examined in situations where the rates calculated for the individually examined 
companies are all zero, de minimis , or based on facts available.  Contrary to Vietnam's argument, 
Article 9.4 does not require the application of zero or de minimis  rates to companies not individually 
examined if all the rates determined for indi vidually examined comp anies are also zero or de minimis .  
To invent further obligations under the circumstance s presented here would be contrary to the DSU, 
which makes it clear that dispute settlement is not to add to or diminish Members' rights and obligations.  
 
12. The text of Article 9.4 reflects the limited nature of the obligation related to the maximum 
antidumping duty that Members may apply, as well as the compromise that Members made in 
agreeing to this provision.  Article 9.4 requires investigating authorities to disregard not only facts 
available margins (rates that would increase the maximum antidumping duty that may be applied), but also zero and de minimis  margins as well (rates that would lower the ceiling).  To interpret Article 9.4 
as requiring Members to apply only zero or de minimis  rates in instances in which only zero or 
de minimis  rates have been calculated for individually examined companies would be inconsistent 
with the text and would upend the compromise evidenced by the text. 
 
13. There is no basis in the AD Agreement for the contemporaneity requirement that Vietnam 
asks the Panel to read into Article 9.4.  Article 2.4, which Vietnam suggests informs the interpretation 
of Article 9.4, addresses the determination of ma rgins of dumping, specifically the comparison of 
export price and normal value and adjustments that must  be made to ensure a "fair comparison."  The 
obligation in Article 2.4 that the export price and normal value comparison be made "in respect of 
sales made at as nearly as possible the same ti me" relates to the calculation underlying the 
determination of dumping.  It doe s not relate to the calculation of  the maximum antidumping duty that 
may be applied to companies not individually exam ined pursuant to Article 9.4, nor to the actual 
antidumping duty applied to such companies when the duty is based on a previously determined 
dumping margin.  The obligations in Article 2.4 ar e of no relevance to the Panel's examination of 
Commerce's determinations. 
 14. Nothing in the text of the AD Agreement supports the linkage that Vietnam attempts to 
establish between Articles 2.4 and 9.4.  It is partic ularly noteworthy that there are no cross references WT/DS404/R  
Page E-14 
 
 
  between these provisions.  The Appellate Body has previously explained that the absence of cross 
references is of some consequence, as the drafters made "active use" of cross references in the 
covered agreements when they intended to apply obligations in different contexts.  There are 
numerous cross references throughout the AD Agreem ent, but none that link Articles 2.4 and 9.4. 
 
15. Vietnam also points to Article 9.3 of the AD Agreement as a basis for imputing a 
contemporaneity requirement into Article 9.4.  Just  as Article 9.4 does not cross reference Article 2.4, 
it makes no reference to Article 9.3.  Additionall y, while Article 9.3 establishes obligations with 
respect to the application of duties to individually examined companies, Article 9.4 establishes certain 
obligations with the respect to the maximum duty that may be applied to companies not individually 
examined in some situations.  Unsurprisingly, th e obligations are different.  Article 9.4 does not 
impose any obligations on Members regarding the methodology to be used in determining what 
antidumping duty should be applied to companies not individually examined.  Article 9.4 simply sets 
the maximum duty rate that may be applied in certa in circumstances.  When all the dumping margins 
calculated for individually examined companies, are zero, de minimis , or based on facts available, 
Article 9.4 does not specify a maximum duty. 
 16. Vietnam has also failed to demonstrate that Commere's determinations in the second and third 
administrative reviews are inconsistent with the " unbounded" discretion standard that the Appellate 
Body has said applies in a lacuna  situation under Article 9.4.  Commerce did not act with 
"unbounded" discretion.  Rather, Commerce reasona bly looked toward rates determined in recent 
proceedings as they would reflect the behavior of exporters of subject merchandise during a recent 
period of time.    
17. Vietnam argues for the first time in respon se to the Panel's written questions that Commerce 
failed to make "an unbiased and objective evaluation of  the facts" in assigning rates to companies not 
individually examined in the second and third admi nistrative reviews.  Vietnam did not raise any 
claims under Article 17.6(i) of the AD Agreemen t in its panel request, so no claims under this 
provision are within the panel's terms of reference.  Furthermore, Article 17.6(i) establishes a general 
obligation in respect of a dispute settlement panel's assessment of the facts of the matter rather than 
imposing an obligation on WTO Members .  
 
18. Additionally, Article 9.4 of the AD Agreem ent does not condition a Member's right to apply 
antidumping duties to companies that are not individually examined on a factual finding that other companies continued to dump during a particular period.  Furthermore, Vietnam's assertion that the 
"evidence indicates an industry that has ceased dumping" is wrong.  In the second administrative 
review, numerous companies avoided any possibility of being selected for individual examination by 
refusing to respond to Commerce's request for inform ation concerning the quantity and value of their 
shipments to the United States, and Commerce determined the margin of dumping for these 
companies based on facts available using an adverse in ference.  In the first administrative review (not 
a measure at issue in this dispute), not only did companies not respond to quantity and value 
questionnaires, but several companies selected for individual examination  failed to respond to 
Commerce's full sales and cost questionnaire.  These adverse findings with respect to dumping cannot 
be considered evidence that dumping in the industr y had ceased.  Vietnam asks the Panel to ignore 
these facts.  
19. Vietnam argues that US – DRAMS  is "incongruent" with the facts of this dispute because 
Commerce "fully considered the issue" of what rate  to apply to companies not individually examined 
in the second and third administrative reviews befo re ultimately determining to apply the separate 
rates determined in the original investigation.  Of  course, Commerce "fully co nsidered" what rates to 
apply in the absence of rates that could be used to calculate an applicable ceiling rate consistent with 
the requirements of Article 9.4.  Commerce determined  that it would be appropriate to rely on either a 
weighted average of dumping margins calculated for exporters and producers individually examined WT/DS404/R 
Page E-15 
 
 
  in the most recently completed proceeding, excluding any zero and de minimis  margins and margins 
based on facts available, or a company-specific rate from a more recently completed proceeding 
where such a rate had been determined for a co mpany.  Commerce considered these rates to be 
reasonably reflective of commercial behavior during a recent period.   
 
20. Vietnam has asked the Panel to find that  the rates applied in the second and third 
administrative reviews to companies not individua lly examined are inconsistent with the covered 
agreements because they were inconsistent with th e covered agreements when they were originally 
calculated.  But the rates were not inconsistent  with the covered agreem ents when they were 
originally calculated.  The rates were not subject to  the covered agreements when they were originally 
calculated – because the WTO Agreement did not a pply between the United States and Vietnam at 
that time – and they cannot now be found to have b een inconsistent with the covered agreements at 
the time they were originally calculated.  Vietna m appears to be seeking to obtain the benefits of 
WTO Membership prior to its accession to the WTO.  
21. The panel in US – DRAMS explained that "the AD Agreement only applies to those parts of a 
pre WTO measure that are included in the scope of a post WTO review.  Any aspects of a pre WTO measure that are not covered by the scope of th e post WTO review do not become subject to the 
AD Agreement by virtue of Article 18.3 of the AD Agreement."  The relevant question, then, is 
whether the rates calculated in the original inv estigation were subject to post-WTO review?  The 
answer to this question is, "no."  Commerce did not recalculate the rates that were calculated in the 
original investigation and Commerce did not make  any new comparisons of export price and normal 
value.  That is, Commerce did not conduct a "post- WTO review" of the rates such that they became 
subject to the AD Agreement by virtue of such  review.  The separate rates in question were 
determined once and only once in the original pre-WT O investigation – before the entry into force of 
the WTO Agreement for Vietnam – and were then app lied in the final results for the second and third 
administrative reviews.  The factual situation in this dispute is thus closely analogous to that in US – 
DRAMS .   
 IV. VIETNAM'S CLAIMS OF INCONSISTENCY REGARDING THE RATE APPLIED 
TO THE VIETNAM-WIDE ENTITY ARE WITHOUT MERIT 
 22. Vietnam agrees with the United States that, as a general matter, an authority may, consistent 
with Article 6.10 of the AD Agreement, treat mo re than one company as a single entity based upon 
the relationship between those companies.  Howe ver, Vietnam suggests that, in the challenged 
proceedings, Commerce relied on an "unjustified and impermissible presumption that all exporters are 
owned or controlled by the government" and Comme rce "lacks the affirmativ e evidence necessary to 
conclude that the entities it believes constitute the Vi etnam-wide entity are affiliated ...."  Pursuant to 
Article 17.6(i) of the AD Agreement, the issue is whether Commerce properly established the facts 
and evaluated such facts in an unbiased and objec tive manner in finding a relationship between the 
Government of Vietnam and certain companies that is sufficiently close to warrant treating multiple 
companies as a single entity.  This question must be answered in the affi rmative.  Commerce had 
before it ample evidence of the influence exerted by the Government of Vietnam over its economy, 
including over exportation. 
 23. Vietnam also argues that an investigating authority may only make a finding of affiliation 
with respect to "companies that are subject to individual examination."  There is no such limitation in 
the text of the Agreement.  Vietnam is also incorr ect that an investigating authority would not have 
the necessary information to make an affiliation dete rmination with respect to companies that are not 
individually examined.  Commerce had ample evidence to support a determination that the 
Vietnam-wide entity should be treated as a singl e exporter/producer, including information about the 
non-market nature of Vietnam's economy and the in fluence exerted over it by the Government of WT/DS404/R  
Page E-16 
 
 
  Vietnam, in particular with respect to expor tation, as well as information provided by some 
companies regarding their independence from the government.  
 24. Contrary to Vietnam's argument, the opportunity Commerce provided to respondents in the 
second and third administrative reviews to demons trate their independence from the government was 
not discriminatory.  It was an information gather ing exercise that permitted Commerce to determine 
whether particular companies should be consider ed individually or as part of another entity.  
Commerce collects similar information in market economy cases as well.    
25. Vietnam asserts that the "assumption underlying the USDOC practice is that it can apply an 
adverse facts available rate to companies that  do not demonstrate independence from government 
control."  Vietnam is incorrect.  Commerce did not apply a rate based upon the facts available to any 
interested party that cooperated  in the proceedings.  Vietnam mistakenly conflates Commerce's 
finding that the Vietnam-wide entity is a single exporter/producer and Commerce's separate determination in the second administrative review to  apply to the Vietnam-wide entity an antidumping 
duty rate based upon facts available due to the fa ilure of certain companies to provide requested 
information.  Vietnam also mischaracterizes the basis for the antidumping duty rate applied to the 
Vietnam-wide entity in the third administrative revi ew.  In the third administrative review, Commerce 
did not apply to the Vietnam-wide entity a rate based upon facts available.  Rather, Commerce applied 
to the Vietnam-wide entity the only rate that had ev er been applied to it, which was similar to the 
methodology used for the other separate rate co mpanies in the third administrative review.  
 
26. The quantity and value data requested fro m all respondents under review in the second 
administrative review was "necessary information" w ithin the meaning of Article 6.8 and Annex II of 
the AD Agreement.  The fact that Commerce obtaine d information regarding the quantity and value of 
companies' imports in the third administrative review from U.S. Customs and Border Protection data, 
as opposed to sending questionnaires to companies, do es not demonstrate that the information was not 
necessary.  On the contrary, Commerce's collectio n of quantity and value information in both the 
second and third administrative reviews, albeit from di fferent sources, confirms that this information 
was required in order for Commerce to conduct the pr oceedings.  Additionally, regardless of whether 
Commerce calculates dumping margins based upon individual sales, a company's aggregate quantity and value is the starting point of any dumping anal ysis.  That Commerce later requires companies that 
are individually investigated to report each sale doe s not mean that the total quantity and value of a 
company's sales is not necessary information.    
27. Contrary to Vietnam's argument in this disput e, the scope of "necessary information" is not 
limited to the information used to calculate margins of dumping.  As the Egypt – Steel Rebar  panel 
explained, "it is left to the discretion of an inves tigating authority, in the first instance, to determine 
what information it deems necessary for the conduc t of its investigation (for calculations, analysis, 
etc.) ...."  Vietnam's argument that an investigati ng authority cannot make an affiliation finding for a 
company not individually examined because, inter alia , "the authority does not have the information 
necessary to make such a determina tion" suggests that Vietnam agrees. 
 
V. VIETNAM'S CLAIMS OF INCONSISTENCY REGARDING LIMITING THE 
NUMBER OF RESPONDENTS SELECTED ARE WITHOUT MERIT 
 28. Article 6.10 of the AD Agreement broadly pr ovides that investigating authorities are not 
required to determine margins of dumping for every exporter or producer where the number of exporters or producers "is so large as to make such  a determination impracticable."  In the second and 
third administrative reviews, there were more than  100 exporters or producers under review.  Vietnam 
has clarified that it is not arguing that Commerce "should have or could have  investigated all the 
producers and exporters requesting reviews in each segment of the proceeding."  Vietnam indicates 
that requiring Commerce to do so would not be "reasonable."  Vietnam thus concedes that is was WT/DS404/R 
Page E-17 
 
 
  "impracticable" for Commerce to determine indi vidual dumping margins for all exporters and 
producers.  Furthermore, Vietnam has not allege d that the Commerce acted inconsistently with 
Article 6.10 by failing to individually examine th e largest number of exporters or producers that 
"reasonably" could be examined, explaining that, "[ f]or purposes of this dispute, the Panel does not 
need to determine the precise percentage of producers or production that the USDOC could 
reasonably investigate under Article 6.10."  Hence,  the United States cannot be found to have acted 
inconsistently with any of the obligati ons in Article 6.10 of the AD Agreement. 
 29. Vietnam's argument that the United States violated Articles 6.10 and 9.4 of the 
AD Agreement because Commerce "made no effort to  explore alternatives" to examine more 
exporters and producers when it limited its examination is without merit.  Nothing in Article 6.10, or 
any other provision of the AD Agreement, requir es Commerce to "explore alternatives" as proposed 
by Vietnam.  This is another instance of Vietnam inventing an obligation that has no basis in the text 
of the AD Agreement.  
30. By its terms, Article 6.10.2 of the AD Agreement requires that companies not initially 
selected who wish to have an individual margin of dumping calculated must "submit[] the necessary 
information in time for that information to be cons idered."  The information Vietnam has put before 
the Panel demonstrates that the "necessary informati on" was never submitted in either the second or 
third administrative reviews and conclusively de monstrates that Commerce was under no obligation 
to determine individual dumping margins for "volunta ry respondents" in those proceedings.  For this 
reason, the United States cannot be found to have acted inconsistently with Article 6.10.2 of the 
AD Agreement.    
31. In its responses to the Panel's written ques tions, Vietnam articulates its interpretation of 
Article 11 of the AD Agreement and ultimately concl udes that Articles 11.1 and 11.3 "require that an 
authority permit revocation determinations on a company-specific basis."  The Appellate Body, 
however, has confirmed that Article 11.1 does not impose any independent or additional obligations 
on Members.  In addition, these claims are dependent on Vietnam's claims that Commerce's 
determinations to limit its examin ation are inconsistent with Article  6.10 of the AD Agreement.  As 
we have shown, however, Commerce' s determinations to limit its ex amination are not inconsistent 
with the AD Agreement.  The United States cannot be  found to have acted inconsistently with one 
provision of the AD Agreement due to the proper ex ercise of its rights under a separate provision of 
the AD Agreement.   
32. Vietnam ignores the Appellate Body's unequivocal finding in US – Corrosion-Resistant Steel 
Sunset Review  that "Article 11.3 does not require investigating authorities to make their likelihood 
determination on a company-specific basis."  The Appellate Body also rejected the same arguments 
Vietnam makes now regarding Articles 6.10 and 11. 4 of the AD Agreement, finding that "[t]he 
provisions of Article 6.10 concerning the calculation of individual margins of dumping in investigations do not require that the determinati on of  likelihood of continuation or recurrence of 
dumping under Article 11.3 be made on a company specific basis."  Additionally, contrary to 
Vietnam's suggestion, it is evident that the Appellate Body was aware of Article 11.1 when it was 
analyzing Article 11.3. 
 33. Finally, Vietnam asserts that a U.S. regulation that provides for company specific revocation 
of an antidumping duty order under certain circumstances is "the United States' chosen method for 
implementing Article 11.1. ..."  The United States does not agree with this statement.  The United States considers that the regulatory provision at issue goes beyond any obligation contained in 
Article 11 of the AD Agreement. 
 WT/DS404/R  
Page E-18 
 
 
  VI. VIETNAM'S CLAIM WITH RESPECT TO THE "CONTINUED USE OF THE 
CHALLENGED PRACTICES" IS WITHOUT MERIT 
 
34. The United States has demonstrated that no so -called "continued use" measure is within the 
Panel's terms of reference because Vietnam failed to specifically identify any such measure in its 
panel request, contrary to the oblig ation in Article 6.2 of the DSU.  Vietnam asks the Panel to infer 
from the description of other "as applied" measures that a "continued use" measure is also identified 
in the panel request.  Such an inference is not perm issible.  Rather, the Panel must determine whether, 
"on the face" of the panel request, read "as a w hole," a "continued use" measure was specifically 
identified consistently with the requirement in Artic le 6.2.  In short, as the United States has shown 
and will explain further below, it was not.    
35. Vietnam suggests that the opening line of Sec tion 2 of the panel request specifically identified 
a "continued use" measure and "[t]he language of the Panel Request does not include limiting 
language that would restrict the measure's appli cability to only those reviews already completed or 
initiated."  Vietnam asks the Panel to ignore or er ase the very next sentence of the panel request, 
which states that "[t]he following determinations c onstitute the measures at issue" and then lists six 
particular determinations that are specifically id entified.  Contrary to Vietnam's assertion, this 
sentence does indeed expressly "limit" the measures at  issue in this dispute to the determinations 
identified.  Other language in the panel request simi larly limits the claims rais ed to the "as applied" 
measures identified in Section 2.  Throughout the doc ument, Vietnam's panel request limits itself to 
the application of the laws and procedures in the dete rminations individually identified.  There is no 
indication in the panel request that Vietnam seeks to challenge a so-called "continued use" measure. 
 
36. In the consultations request, Vietnam describ ed its concern that the United States "will ... 
continue to act inconsistent with its WTO obligations ."  Vietnam has asserted that this is a reference 
to a "continued use" measure.  In its First Writte n Submission, Vietnam described the measure as the 
"continued use of the challenged practices."  The words used in the cons ultations request and 
Vietnam's First Written Submission are similar to ea ch other, and the language in the First Written 
Submission is similar to that used in US – Continued Zeroing  by the EC in its panel request and by the 
Appellate Body in its report.  Vietnam has of fered no explanation for why the words in the 
consultations request and Vietnam's First Written Submission are so dissimilar from the words in 
Vietnam's panel request in this dispute.  While pr evious panels have recognized that the DSU does not 
require that a request for consultations mirror a pa nel request, the principal conclusion to be drawn 
from the dissimilarity is that the panel request does not specifically identify any "continued use" 
measure, and thus no such measure is with in the Panel's terms of reference.   
 37. Nothing in the text of Section 2(d) of Viet nam's panel request can be read as specifically 
identifying a "continued use" measure.  The words in Section 2(d) merely allege that the "sunset 
review is inconsistent with Artic les 11.2 and 11.3 of the Agreement," which would be an "as applied" 
claim if not for the fact that Commerce had not yet ma de a final determination in the sunset review at 
the time Vietnam made its panel request.  
 
38. Vietnam argues that "the measures identified in  the panel request are closely related to the 
'continued use' measure," mistakenly relying on the panel reports in Japan – Film  and Argentina – 
Footwear .  The "measure" that Vietnam failed to "exp licitly describe" in the panel request is a so-
called "continued use" measure.  A "continued use" me asure is not "subsidiary or closely related to" 
the second and third administrative reviews – the only measures properly described in the panel 
request.  If anything, the second and third admini strative reviews would be subsidiary to, 
i.e., part of a 
"continued use" measure; not the reverse.  Additiona lly, the "continued use" measure does not modify 
or implement the second and third administrative reviews.  It is significant that, in Japan – Film  and 
Argentina – Footwear , the complaining Members could not  have "explicitly described" the WT/DS404/R 
Page E-19 
 
 
  implementing measures in the panel request because  the implementing measures were not put into 
place until after the panel request had been made.  That is not the case in this dispute.   
 39. Article 6.2 of the DSU requires Vietnam to "i dentify the specific measures at issue" in its 
panel request.  Vietnam would have the Panel lo ok only at the "claims" and not the "measures" 
identified in its panel request.  The logical conclusion of Vietnam's argument is that a complaining 
party could identify just one measure in its panel request, and bring before a panel as many additional 
measures as it wished as long as the claims with resp ect to each measure were the same.  This is not 
what the DSU requires.  Furthermore, the basic premise of Vietnam's assertion that there is no 
"meaningful distinction substantively between the ar guments" to be made in relation to "as applied" 
and "continued use" measures is flawed.  The fact s and legal arguments rele vant to "as applied" 
claims related to a particular determination are su bstantially different from those relevant to claims 
related to a so-called "continued use" measure.  
 40. The "continued use of challenged practices" appears to be a fictional measure supposedly 
composed of an indeterminate number of potential future measures that did not exist at the time of 
Vietnam's panel request (and may never exist).  Such  so-called "continued use" cannot be subject to 
dispute settlement because it could not be impairing any benefits accr uing to Vietnam, and it consists 
of proceedings that had not resulted in "final ac tion" at the time of the consultations request, as 
required by Article 17.4 of the AD Agreement.  
41. In US – Continued Zeroing , the Appellate Body found that the record supported findings of 
inconsistency in only four of the eighteen cases challe nged.  As a factual matter, in the fourteen other 
cases, the record did not reflect that "the zeroi ng methodology was repeatedly used in a string of 
determinations made sequentially in periodic reviews and sunset re views over an extended period of 
time."  In each of the four cases where the Appellate  Body concluded that there was "a sufficient basis 
... to conclude that the zeroing methodology woul d likely continue to be applied in successive 
proceedings," the panel had found the following:  (1) the use of the zeroing methodology in the initial 
less than fair value investigation;  (2) the use of the zeroing methodology in four successive 
administrative reviews;  and (3) reliance in a s unset review upon rates determined using the zeroing 
methodology.  Where there was "a lack of evidence showing that zeroing was used in one periodic 
review listed in the panel request" or "the sunset  review determination w as excluded from the Panel's 
terms of reference," the Appellate  Body found that "the Panel made  no finding confirming the use of 
the zeroing methodology in successive stages over an  extended period of time whereby the duties are 
maintained."  Consequently, the Appellate Body was "unable to complete the analysis on whether the 
use of the zeroing methodology exists as an ongoing conduct in successi ve proceedings ...." 
 42. In this dispute, the original investigation, the first, fourth, and fifth administrative reviews, 
and the sunset review are not within the Panel's te rms of reference and there can be no finding that 
Commerce acted inconsistently with the AD Agre ement or the GATT 1994 in connection with the 
"challenged practices" in those pr oceedings.  Additionally, Vietnam has failed to establish that 
"zeroing" had any impact on the margins of dumping calculated for the individually examined 
respondents in the second and third administrative re views, and Vietnam has failed to establish as a 
factual matter that Commerce used the zeroing met hodology in connection with the application of a 
dumping margin to separate rate respondents in tho se proceedings, or to the Vietnam-wide entity.  
Vietnam also seeks to expand the Appellate Body's reasoning in US – Continued Zeroing  beyond 
zeroing to encompass the other "challenged practi ces", but Vietnam's claims regarding the other 
"challenged practices" are without merit. Vietnam ca nnot establish "a string of determinations, made 
sequentially ... over an extended period of time" with respect to any of the "challenged practices." 
 
 
_______________