Document: WT/DS404/R Page E-1 ANNEX E EXECUTIVE SUMMARIES OF THE SECOND WRITTEN SUBMISSIONS OF THE PARTIES Contents Page
Document codes: WT/DS404/R
Complainant: Vietnam
Respondent: U.S.
Third parties: China, EU, India, Japan, South Korea, Mexico, Thailand
Dispute stage: Mutually Agreed Solution
Agreements cited: Art. 2.1, 2.4, 2.4.2, 9.1, 9.3, 1, 11.1, 11.3  Anti-dumpingArt. VI:1, VI:2  GATT 1994Art. 18.1  Anti-dumpingArt. XVI:4  Agreement Establishing the World Trade OrganizationArt. 18.3, 18.4, 6.8, 5.8, 9.4, 11  Anti-dumpingArt. I, II  GATT 1994Annex II, Art. 9  Anti-dumpingPart I, para. 1.2  Protocol of Accession

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

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 determination 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 Convention. 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

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 Stainless Steel from Mexico, WT/DS344/AB/R, adopted 20 May 2008.
2 Id.
3 Viet Nam's First Written Submission at paras. 46 to 48 and accompanying exhibits.

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, violate 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-Dumping 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.

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 third 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 first 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 segment; 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 Questions 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.

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 force 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 contemporeneity 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.

review, the USDOC apparently does not dispute the claim that the USDOC did not request "necessary
information" from the Vietnam-wide entity. Accordingly, 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.

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 rate 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).

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 imposed 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 requirements 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 ("separate") rate in the second and 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), and 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.

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.

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 exporters 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.

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 normal 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 impossible to resolve in any principled, 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 provisions 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 determine 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 assessment systems that is reflected in Article 9, it
was necessary to limit the requirements of Article 2.4.2 to the investigation phase.

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 companies 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 companies 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 does 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

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 Agreement, 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

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

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 review. 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 companies 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 obtained 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, does 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 determination" 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

"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 obligations 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.

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 previous 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 within 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 Articles 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 administrative 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

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 successive 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."