UNITED STATES – ANTI-DUMPING MEASURES ON CERTAIN SHRIMP FROM VIET NAM
Document: Request for Consultations by Viet Nam
Date: 27 February 2012
Document codes: WT/DS429/1; G/L/980; G/ADP/D91/1
Complainant: Vietnam
Respondent: U.S.
Third parties: China, Ecuador, EU, Japan, Norway, Thailand
Dispute stage: Mutually Agreed Solution
Agreements cited: Art. 2, 9, 1  Anti-dumpingArt. VI:1, VI:2  GATT 1994Art. 11  Anti-dumpingPart I, para. 1.2  Protocol of AccessionArt. 18  Anti-dumpingArt. XVI:4  Agreement Establishing the World Trade Organization

UNITED STATES – ANTI-DUMPING MEASURES ON
CERTAIN SHRIMP FROM VIET NAM

Request for Consultations by Viet Nam

 The following communication, received on 22 February 2012, from the delegation of
Viet Nam to the delegation of the United States and to the Chairperson of the Dispute Settlement
Body, is circulated in accordance with Article 4.4 of the DSU.

Upon instructions from my authorities, I hereby request consultations with the Government of
the United States pursuant to Article 4 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes ("DSU"), Article XXII: 1 of the General Agreement on Tariffs and Trade 1994
("GATT 1994"), and Articles 17.2 and I7 .3 of the Agreement on Implementation of Article VI of
GATT 1994 ("Anti-Dumping Agreement"). This request is made with respect to:

(1) The imposition of anti-dumping duties and cash deposit requirements pursuant to the
final results of the United States Department of Commerce's (hereafter , "USDOC")
fourth administrative review for the period from 1 Februar y 2008 to 31 January 2009,
in Certain Frozen Warmwater Shrimp From th e Socialist Republic of Vietnam: Final
Results and Partial Rescis sion of Antidump ing Duty Administrative Review , 75 Fed.
Reg. 4771 (August 9,2010);
(2) The fourth administrative review of Certain Fro zen Warmwater Shrimp from the
Socialist R epublic of Vietnam insofar as it d id not revoke the anti-dumping duty
order with respect to certain respondents requesting such revocation;
(3) The imposition of anti-dumping duties and cash deposit requirements pursuant to the
final results of the USDOC 's fifth admini strative review for the period from
1 February 2009 through 31 January 2010 , in Certain Fr ozen Warmwater Shrimp
from the Socialist Republic of Vi etnam: Final Result
s and Final Partial Rescission of
Antidumping Duty Administrative Review, 76 Fed.Reg. 56158 (September 12,2011);
(4) The fifth administrative review of Certain Froz en Warm water Shrimp fro m the
Socialist Republic of Vietnam insofar as it did not revoke the anti-dumping dut y
order with respect to certain respondents eligible for such revocation;
(5) Any other ongoing or future anti-dumping administrative review s, and th e
preliminary and final results thereof , related to the imports o f certain fro zen
warmwater shrimp from Viet Nam (D OC Case A-552-802), as well as any

assessment instructions, cash deposit requirements, and revocation determinations
issued pursuant to such reviews;
(6) The final results Certain Frozen Warmwater Shrimp from the Socialist Republic of
Vietnam: Final Results of the First Five-ye ar "Sunset" Review of the Antidumping
Duty Order, 75 Fed. Reg. 75965 (Dec. 7,2010), in which the USDOC determined that
revocation of the anti-dumping duty order would be likely to lead to the continuation
or recurrence of dumping; and
(7) Section 129 of the Uruguay Round Agreements Act ("URAA"), 19 U.S.C. §3538, as
elaborated upon in the Statement of Ad ministrative Action accompanying the URAA
and as implemented by the relevant United States authorities.
 With regard to these measures, Viet Nam w ould like to consult with the United States
regarding application of certain laws, regulations and practices, including the following:

(1) the Tariff Act of 1930, as amended, in pa rticular Sections 731, 751, 752, 771(7),
771(35)(A), 771(35)(B), and 777A(d);
(2) Section 129 of the URAA, codified as 19 U.S.C. §3538;
(3) the United States Statement of Administrative Action that accompanied the Uruguay
Round Agreements Act, H.R. Doc. No.1 03-316, vol. I;
(4) the implementing regulations of the United States Department of Commerce
("USDOC"), 19 C.F.R. Section 351, in particular 19 C.F.R. § 351.218 and 19 C.F.R.
§ 351.414;
(5) the Import Administration Antidumping Manual (2009 edition), including the
computer programs to which it refers;
(6) the USDOC's Policy Bulletin 98.3, "Polic ies Governing the Conduct of Five-Year
("Sunset") Reviews of Antidumping and Countervailing Duty Orders" (April 16,
1998),63 Fed. Reg. 18871 (April 16, 1998);
(7) the methodology of the United States for determining margins of dumping in
administrative reviews;
(8) the practice of requiring submission of a separate rate application or certification in
original investigations and periodic re views concerning Vietnamese producers in
order to qualify for the all others - or "separate" - rate;
(9) the practice of limiting the number of respondents selected for individual examination
to only a small fraction of the total numbe r of companies seeking individual review
and the accompanying failure by the United States to provide alternative methods for
non-investigated respondents to demonstrates that they are no longer dumping;
(10) the application of a so-called Vietnam-wi de entity rate based on adverse facts
available to respondents not individually inv estigated who fail to provide a separate
rate application or certification to demonstrate the absence of government control;

(11) the practice of denying individually ex amined and non-individually examined
respondents of the opportunity to demonstrate the absence of dumping, which would
allow for the dumping order to be revoke d as to individual respondents that cease
dumping behaviour;
(12) the practice and methodology of the United States in five-year ("sunset") reviews for
determining whether revocation of anti-dumpi ng orders would be likely to lead to
continuation or recurrence of dumping; and
(13) the practice of implementing adverse Dispute Settlement Body rulings, pursuant to
Section 129 of the DRAA, such that unliquidated entries entered or withdrawn from
the warehouse for consumption prior to th e date of a Section 129 determination
remain subject to assessment of duties pur suant to the .original anti-dumping duty
determination.
 Viet Nam would like to consult with the Unite d States not only with regard to actions taken
by the USDOC in the determinations listed at (1)-(4 ) above on an "as applied" basis, but would also
like to consult with the United States' regarding its practice, as such, of (1) improper use of the
zeroing methodology in administrative reviews and s unset reviews, (2) improper application of an
assessment rate to a country-wide en tity in periodic reviews that is distinct from the all others rate, by
way of USDOC's "separate rate" practice, (3) re quiring non-individually investigated respondents to
respond to a questionnaire regarding independence from government control to qualify for the all
others rate; and (4) improper implementation of ad verse Dispute Settlement Body rulings relating to
US anti-dumping practices, actions, and measures, pursuant to Section 129 of the URAA.

 The matters that the Government of Viet Nam would like to raise in the course of
consultations include, but are not limited to, the following:

(1) In the fourth and fifth administrative reviews, the zeroing of dumping margins when
comparing export prices and normal value;
(2) in the fourth and fifth administrative revi ews, the determination of dumping margins,
both for investigated respondents and so-ca lled separate rate respondents, above de
minimis levels as a result of zeroing negative dumping margins for investigated
respondents, and the consequent impositi on, continuation, or collection of
anti-dumping duties;
(3) in the fourth and fifth administrative re views, the limited selection of respondents
individually investigated, such that non- investigated companies are denied the
opportunity to demonstrate the absence of dumping necessary to qualify for
revocation of the anti-dumping duty order;
(4) in the fourth and fifth administrative reviews, the treatment of the so-called Vietnam-
wide entity, including the designation of the entity as a "single" entity and the
anti-dumping duty assigned to the entity, wh ich was based on application of total
adverse facts available;
(5) the continued use of the practices described in paragraphs (1)-(4) above in subsequent
reviews;

(6) in the fourth and fifth administrative re views, the USDOC's determination to not
revoke the anti-dumping duty order with respect to three respondents: Minh Phu
Group, CAMIMEX, and Grobest, despite evidence demonstrating the absence of
dumping in the fourth administrative revi ew and the absence of any evidence of
dumping by these respondents in any of the prior reviews conducted by the USDOC;
(7) the use of zeroing to calculate dumping margins and determine duty assessment in the
final results of the original investigation and first, second, third, fourth, and fifth
administrative reviews, to the extent that the USDOC's use of the zeroing
methodology in those determinations impermissibly inflated assessed anti-dumping
duties and consequentially impacted the USDOC's revocation and five-year "sunset"
review determinations in the measures at issue;
(8) the use of zeroing to calculate dumping margins and determine duty assessment in the
final results of the original investigation and first, second, third, fourth, and fifth
administrative reviews, to the extent that the USDOC's consiste nt use of the zeroing
methodology in those determinations de monstrates the USDOC's continued and
ongoing use of the methodology throughout the full course of the shrimp
anti-dumping proceeding;
(9) the use of limited respondent selection in the original investigation and first, second,
third, fourth, and fifth administrative reviews, to the extent that this practice denied
respondents not selected for individual review the opportunity to obtain revocation of
the anti-dumping duty order in the meas ures at issue and impacted the USDOC's
five-year "sunset" review determination;
(10) the use of limited respondent selection in the original investigation and first, second,
third, fourth, and fifth administrative review s, to the extent that these determinations
demonstrate the USDOC's continued and ongoing use of this practice throughout the
full course of the shrimp anti-dumping proceeding;
(11) the treatment of the so-called Vietnam-wide entity in the original investigation and
the first, second, third, fourth, and fifth admi nistrative reviews, to the extent that this
practice impacted the USDOC's revocation and five-year "sunset" review
determinations in the measures at issue;
(12) the treatment of the so-called Vietnam-wide entity in the original investigation and
the first, second, third, fourth, and fifth administrative reviews, to the extent that these
determinations demonstrate the USDOC's c ontinued and ongoing use of this practice
throughout the full course of the shrimp anti-dumping proceeding;
(13) in all of the anti-dumping proceedings of Certain Frozen Warmwater Shrimp from
the Socialist Republic of Vietnam , the absence of any mechanism to provide
individually investigated or non-individually investigated respondents the opportunity
to establish the absence of dumping that is required for revocation of the anti-
dumping duty order;
(14) in the final sunset review determination, the use of dumping margins calculated in the
original anti-dumping investigation and/or subsequent administrative reviews, in
which negative dumping margins had been zeroe d, resulting in the determination that

revocation of the anti-dumping orders would be likely to lead to continuation or
recurrence of dumping;
(15) in the final sunset review determination, th e failure to otherwise evaluate the facts in
an unbiased and objective manner in determining the likelihood of the continuation or
recurrence of dumping; and
(16) the use of WTO-inconsistent anti-dum ping duty assessment rates applied to
unliquidated entries that are assessed fo llowing a Section 129 determination that
implements an adverse Dispute Settlement Body ruling.
 Viet Nam believes that the laws, regulations, administrative procedures, practices and
methodologies described above are as such and/or as applied in the determin ations listed above, and
on the basis of continued use with respect to select practices, inconsistent with the obligations of the
United States under the Marrakesh Agreement Esta blishing the World Trade Organization (the
"WTO Agreement") and the Agreements annexed ther eto. The provisions with which these measures
appear to be inconsistent include, but are not limited to, the following:

(1) Articles 1:1, VI: 1, VI:2, and X:3(a) of the GATT 1994;
(2) Articles 1,2.1,2.4,2.4.2,6,9, 11, 17.6(i), and Annex II of the Anti-Dumping
Agreement;
(3) Article XVI:4 of the WTO Agreement;
(4) Articles 3.7, 19.1,21.1,21.3, and 21.5 of the DSU; and
(5) Viet Nam's Protocol of Accession to the WTO.
 Viet Nam reserves the right to raise additiona l claims and legal matters during the course of
the consultations.

 To avoid the apparent confusion that our inclus ion of the original investigation caused the US
in Vietnam's previous request for consultations and a panel involving Certain Frozen Warmwater
Shrimp from the Socialist Republic of Vietnam, we would like to clarify that while practices and
determinations in the original investigation and th e first, second, and third administrative reviews are
referenced because they have had an effect on the fourth administrative review, the fifth
administrative review, the five year "sunset review", and ongoing or future reviews, the practices and
determinations are included in this request for consultations only to th e extent that they have had or
will have an effect on the fourth administrative review, the fifth administrative review, the five year
sunset review , and s ubsequent r e
views. Th e underlying determinations, decision m emoranda, and
other memoranda a nd reco rd evidence in th e o riginal investigation and t he t hree review s are thu s
necessary and relevant to the proceeding for which these consultations are requested.

 We look forward to receiving your reply to this request and, in accordance with Article 4.3 of
the DSU , to se lecting a mutually acce ptable date for holding co nsultations. Viet Nam wel comes
suggestions that the United States may have concerning the date and venue for the consultations.