UNITED STATES – ANTI-DUMPING MEASURES ON CERTAIN SHRIMP FROM VIET NAM
Document: Request for the Establishment of a Panel by Viet Nam
Date: 9 April 2010
Document codes: WT/DS404/5
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

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

Request for the Establishment of a Panel by Viet Nam

 The following communication, dated 7 April 2010, from the delegation of Viet Nam to the
Chairman of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.

 Upon instruction from my authorities, I wish to convey the request of the Government of Viet
Nam ("Viet Nam") to the Dispute Settlement B ody (the "DSB") for the establishment of a panel
pursuant to Article XXIII:1 of the General Agreem ent on Tariffs and Trade 1994 (the "GATT 1994"),
Articles 4 and 6 of the Understanding on Rules and Procedures Governing the Settlement of Disputes
(the "DSU"), and Article 17.4 of the Agreement on Implementation of Artic le VI of the General
Agreement on Tariffs and Trade 1994 (the "Anti-Du mping Agreement) with respect to certain anti-
dumping measures imposed by the United States on imports of certain shrimp from Viet Nam.

1. Consultations
 Pursuant to Article 4 of the Understanding on the Rules and Procedures Governing the
Settlements of Disputes (DSU) and Article XXII:1 of the General Agreement on Tariffs and Trade
1994 (GATT 1994), Viet Nam requested consultations w ith the United States (US) regarding certain
anti-dumping measures imposed by the United States on imports of certain shrimp from Viet Nam.
Viet Nam requested consultations with the Unite d States on 1 February 2010, and the request was
circulated on 4 February 2010 as document WT /DS404/1, , Thailand
requested to join consultations with the United States on 15 February 2010 and the request was
circulated on 16 February 2010 as document The European Union (EU) requested to
join consultations with the United States on 12 Fe bruary 2010 and the request was circulated on
16 February 2010 as document WT/DS404/3. Japan requ ested to join consultations with the United
States on 12 February 2010 and the request wa s circulated on 16 February 2010 as document

 Viet Nam and the United States held consu ltations on 23 March 2010 in Geneva. Those
consultations were held with the hope of reachin g a mutually satisfactory solution. The parties at
consultations gained a better understanding of the issues under consideration, but did not reach a
resolution of the matter. Therefore, Viet Nam here by requests that a Panel be established pursuant to
Article 6 of the DSU and Article XXIII of the GATT 1994.

2. Summary of Facts and Legal Basis of Complaint
 The specific measures at issue are the anti- dumping order and subsequent periodic reviews
conducted by the United States Department of Commerce (USDOC) on certain frozen and canned
warmwater shrimp from Viet Nam. The following determinations constitute the measures at issue:
1. Final Determination of Sales at Less Than Fair Value: Certain Frozen and Canned
Warmwater Shrimp from the Socialist Republic of Vietnam , 69 Fed. Reg. 71005
(5 Dec. 2004)
2. Certain Frozen and Canned Warmwater Shrimp from the Socialist Republic of
Vietnam: Final Results of the First Antidumping Duty Administrative Review and
First New Shipper Review, 72 Fed. Reg. 52052 (12 Sept. 2007)
3. Certain Frozen and Canned Warmwater Shrimp from the Socialist Republic of
Vietnam: Final Results and Final Partial Rescission of Antidumping Duty
Administrative Review, 73 Fed. Reg. 52273 (9 Sept. 2008)
4. Certain Frozen and Canned Warmwater Shrimp from the Socialist Republic of
Vietnam: Final Results and Final Partial Rescission of Antidumping Duty
Administrative Review, 74 Fed. Reg. 47191 (15 Sept. 2009)
5. Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam:
Preliminary Results, Partial Rescission, and Request for Revocation, in Part, of the
Fourth Administrative Review, 75 Fed. Reg. 12206 (15 March 2010), including denial
of all requests for revocation.
6. Initiation of Five-Year ("Sunset") Review, 75 Fed. Reg. 103 (4 January 2010).
(a) Zeroing
(i) Summary of Facts
 The USDOC engaged in model zeroing to calcu late the dumping margin for all respondents
during the original investigation. Specifically, the USDOC made an average-to-average comparison of
export price and normal value within "subgroups" of the product under investigation. The USDOC
aggregated the results of the subgroup, average-to -average comparisons to determine the weighted
average margin of dumping, excluding any offsets wh ere export price is greater than normal value.
The USDOC acknowledged use of this zeroing me thodology in the decision memorandum that
accompanied the final results. As a result, the US calculated a margin and amount of dumping in
excess of the actual dumping practised by the respondent companies.

 In each of the administrative reviews at i ssue, the USDOC has made use of this zeroing
methodology. Specifically, in making an average-to -average comparison of export price and normal
value, the USDOC does not allow non-dumped sales to offset the amount of dumping found with
respect to other sales. As with the investigation, the USDOC has acknowledged in each review use of
this zeroing methodology in the administrative dete rminations. Therefore, the dumping rate is in
excess of the actual dumping performed by the respondent.

 These calculations and methodologies are applied pursuant, in particular, to the following
United States laws and regulations:

1. Tariff Act of 1930, as amended, Section 771(35)(A)

2. Implementing regulations of the USDOC , 19 C.F.R. § 351.408 and 351.414.

(ii) Legal Basis of Complaint
 Viet Nam considers the above-mentioned laws and procedures by the USDOC to be, as such,
inconsistent with several provisions of the An tidumping Agreement, GATT 1994, and the Marrakesh
Agreement. In original investigations, periodic re views, new shipper reviews, sunset reviews, and
certain changed circumstances reviews, USDOC's use of zeroing is inconsistent with:

2. Article 2 of the Anti-Dumping Agreement, including paragraphs 2.1, 2.4, and 2.4.2,
because the comparison made by the USDOC is inconsistent with the requirements of
Article 2 and those paragraphs of Article 2;
3. Article 9 of the Anti-Dumping Agreement, including paragraphs 9.1 and 9.3, because
the USDOC's use of the zeroing methodology results in the imposition of duties in
excess of the amount of dumping as determined pursuant to Article 2;
4. Paragraph 9.4 of Article 9 of the Anti-Dumping Agreement because the USDOC's use
of the zeroing methodology results in the impos ition of duties for the all-other rate in
excess of the amount of dumping as determined pursuant to Article 2;
5. Article 1 of the Anti-Dumping Agreement and Articles VI:1 and VI:2 of the
GATT 1994 to the extent that the imposition and collection of the duties is
inconsistent with the Anti-Dumping Agreement;
6. For original investigations only, Article 5.8 of the Anti-Dumping Agreement where de
minimis dumping margins are unjustifiably found to be not de minimis; and
7. For sunset reviews only, Article 11 of the Anti-Dumping Agreement , including
paragraphs 11.1, 11.2, 11.3 and 11.4 of the Anti-Dumping Agreement where
likelihood of continued dumping determin ations are made using the zeroing
methodology inconsistent with Articles 2.4 and 2.4.2 of the Anti-Dumping
Agreement.
8. Part I:2 of the Protocol of Accession of the Socialist Republic of Vietnam, WT/L/662,
15 November 2006 and Paragr aphs 254 and 255 of the Report of the Working Party
on Accession of Vietnam, WT/ACC/VNM/48, 26 October, 2006.
 Viet Nam also considers th at USDOC's application of the above-mentioned laws and
procedures in the original investigation and periodic re views here at issue to be inconsistent with the
following provisions of the Anti-Dumping Agreement, GATT 1994, and the Marrakesh Agreement for
the same reasons set out above:

9. Articles 1, 2.1, 2.4, 2.4.2, 9.1, 9.3, 11.1, and 11.3 of the Anti-Dumping Agreement.
10. Article 18.4 of the Anti-Dumping Agreement and Article XVI:4 of the Marrakesh
Agreement.
11.
Articles 1 and 2 of the GATT 1994.

(b) Country-Wide Rate Based on Adverse Facts Available
(i) Summary of Facts
 The USDOC has applied a "country-wide rate" based on adverse facts available throughout
the antidumping proceedings identified above. For countries identified as non-market economy
countries, the USDOC requires that companies no t selected as mandatory respondents apply for
separate rates; those that fail to do so or do not me et the separate rate criteria are given the "country-
wide rate" as established by USDOC. Even a company that timely and fully responds to the questions
posed by USDOC will be assigned this country-wide rate if it does not rebut the presumption
established by USDOC: specifically, the company mu st establish that it does not operate under the
control of the government. If the company is successful , it will receive a "separate rate," which is the
weighted average of the rates calculated for the individually investigated respondents.

 Companies that do not receive a separate ra te are assigned the country-wide rate. In the
proceedings at issue, the USDOC assigned a comp any-wide rate based entirely on adverse facts
available, even where companies responded timely and fully to the questionnaires issued by USDOC.
The USDOC did so on the basis that certain separate rate applicants did not submit complete
information and because the Vietnamese government did not submit a response on their behalf. The
effect of this action is to assign highly prejudici al and unjustifiable rates to companies that do
everything in their control to comply with USDOC requests. Companies granted a separate rate have
received a margin of 4.57 per cent over the course of the measures at-issues; companies assigned a
country-wide rate have in contrast received a margin of 25.76 per cent.

 These calculations and methodologies are applied pursuant, in particular, to the following
United States laws and measures:

12. Tariff Act of 1930, as amended, Sections 771(18)(C)(i), 776(a)(2), and 776(b);
13. Import Administration Antidumping Manual, Chapter 10, "Non-Market Economies."
(ii) Legal Basis of Complaint
 In the antidumping proceedings at-issue, the United States applied the laws and
methodologies described above with regard to cal culation of a country-wide rate, which Viet Nam
considers to be inconsistent with the obligations of the United States under the Anti-Dumping
Agreement. Specifically, Viet Nam considers these measures to be inconsistent with Articles 6.8, 9.4,
and Appendix II of the Anti-Dumping Agreement.

14. Articles 2 and 9 of the Anti-Dumping Agreement because these Articles determine
the basis for calculation of antidumping margins and the collection of antidumping
duties and do not refer to the circumstances contemplated by the application of a
country-wide rate based on adverse facts available.
15. Article 6, including paragraphs 6.8, and Appendix II of the Anti-Dumping Agreement
because USDOC relied on adverse facts available for the calculation of the country-
wide rate for entities not granted a "separate rate." In so doing, the USDOC failed to
adhere to the provisions of the Agreem ent governing the use of adverse facts
available, as the presence of "state control" is not a relevant criteria for determining
margins of dumping or the application of adverse facts available.
16. Article 9, including paragraph 9.4, of the Anti-Dumping Agreement because the
USDOC has created a category of producers not contemplated in the Agreement. The

Agreement permits an authority to calculat e a rate for individually investigated
producers, a rate based on facts available fo r individually investigated producers that
do not cooperate, and a separate, "all others " rate calculated based on the weighted
average margin of the individually investig ated producers. The "country-wide" rate
applied by USDOC does not adhere to these limitations.
17. Part I.2 of the Protocol of Accession of the Socialist Republic of Vietnam, WT/L/662,
15 November 2006 and Paragraphs 527, 254 and 255 of the Report of the Working
Party on Accession of Vietnam, WT/ACC/VNM/48, 27 October 2006 because the
terms of Vietnam's accession to the WTO do not permit the application of such a
country-wide rate unless otherwise provided for under the Anti-Dumping Agreement.
 Viet Nam also considers th at USDOC's application of the above-mentioned laws and
procedures in the original investigation and periodic re views here at issue to be inconsistent with the
following provisions of the Anti-Dumping Agreement, GATT 1994, and the Marrakesh Agreement for
the same reasons set out above:

18. Article 18, including paragraphs 18.1, 18.3 and 18.4, of the Anti-Dumping
Agreement and Article XVI:4 of the Marrakesh Agreement.
19. Articles 1 and 2 of the GATT 1994.
(c) Limiting the Number of Respondents Selected for Full Investigation or Review
(i) Summary of Facts
 The United States antidumping law requires as a general rule examination of each known
producer or exporter of subject merchandise. Beyond this general rule, the USDOC has the authority
to limit the investigation to a selected number of producers where investigation of all known
producers or exporters is not practicable.

 The USDOC has only investigated or reviewed the few largest exporters, with the exception
of new shipper reviews, throughout the proceedi ng at-issue, limiting to a substantial degree the
number of producers individually investigated or revi ewed. In the original investigation, the USDOC
investigated only four respondents out of thirty -eight potential respondents. The USDOC published a
memorandum in conjunction with this decision, citing the impracticability of investigating all
producers because of staffing concerns or budgetary constraints to justify the limited number of
producers individually investigated. The USDOC sim ilarly limited the respondents reviewed to the
largest exporters in each of the subsequent ad ministrative reviews, selecting for individual
investigation in each instance a fraction of the companies seeking individual review.

 Companies not selected for individual investig ation or review because of the US authorities
methodology have not been assigned their own an tidumping rate, but instead receive either the
"separate rate" or the country-wide rate. The USDO C in the proceedings at-issue have declined to
calculate an individual rate even where companie s not individually investigated have voluntarily
submitted information so that USDOC may do so. The result is that companies not presently engaging
in dumping have not had and do not have the opportunity to receive a dumping rate of zero or de
minimis, because they never have the opportunity to be individually investigated. Thus, companies
not individually investigated, caused by USDOC's review of only the largest exporters, are not
eligible for revocation of the dumping order on an individual basis. The USDOC will revoke an
antidumping order where the exporter or producer has not engaged in dumping for three consecutive
years and there is a likelihood that they will not do so in the future. Companies not individually
investigated in these proceedings have no opport unity to establish three consecutive years of de

minimis dumping rates and will be forced to conti nue to pay dumping rates even if they have not
engaged in sales at less than fair value for more than three consecutive years. In addition, any final
duties related to imports from these companies are, have been, or will be assessed duties in excess of
the margin of dumping.

 These methodologies are applied pursuant, in par ticular, to the following United States laws
and measures:

20. Tariff Act of 1930, as amended, Section 777A(c)(2)(B);
21. Implementing regulation of the USDOC, 19 C.F.R. § 351.204.
(ii) Legal Basis of Complaint
 Because the United States has acted in the ma nner just described, Viet Nam considers the
proceedings to be inconsistent with certain WTO obligations. Viet Nam considers these actions to be
inconsistent with Articles 6.10 and 11 of the Anti-Dumping Agreement, and Article 31 of the Vienna
Convention on the Law of Treaties:

22. Article 6, including paragraph 6.10, of the Anti-Dumping Agreement because the
USDOC has failed to determine an individual margin of dumping for each known
exporter or producer, without proper justification, at each stage of the proceedings.
23. Article 6, including paragr aph 6.10.2 of the Anti-Dumping Agreement because the
USDOC has, without proper justification, refused to investigate respondents on the
basis of information voluntarily submitted and has refused voluntary responses.
24. Article 9, including paragraph 9.4, of the Anti-Dumping Agreement because the
USDOC has refused to apply individual duties or normal values to respondents that
provided the necessary information during th e course of the investigation and has
applied duties to non-investigated respondents without any evidence of dumping by
those non-investigated respondents.
25. Article 11.1 of the Anti-Dumping Agre ement because the USDOC's method of
selecting respondents requires anti-dumping duti es to be imposed even in instances
where the producer or exporter is not dumping, where that producer has not been
individually selected for investigation. Part I.2 of the Protocol of Accession of the
Socialist Republic of Vietnam, WT/L/ 662, 15 November 2006 a nd Paragraphs 527,
254 and 255 of the Report of the Working Party on Accession of Vietnam,
WT/ACC/VNM/48, 27 October 2006 because the terms of Vietnam's accession to the
WTO do not permit the application of su ch a country-wide rate unless otherwise
provided for under the Anti-Dumping Agreement.
26. Article 31 of the Vienna Convention on the Law of Treaties because the USDOC's
practice does not comport with the overall purpose and intent of the Anti-Dumping
Agreement, namely, the fair and effective imposition of antidumping duties so as to
prevent the sale of goods for less than fair value.
 Viet Nam also considers th at USDOC's application of the above-mentioned laws and
procedures in the original investigation and periodic re views here at issue to be inconsistent with the
following provisions of the Anti-Dumping Agreement, GATT 1994, and the Marrakesh Agreement for
the same reasons set out above:

27. Article 18, including paragraphs 18.1, 18.3 and 18.4, of the Anti-Dumping
Agreement and Article XVI:4 of the Marrakesh Agreement.
28. Articles 1 and 2 of the GATT 1994.
(d) Sunset Review
 The USDOC initiated a sunset review for these antidumping proceedings on 4 January 2010.
Based on statutory time limitations and an excep tional situation in which the USDOC tolled all
deadlines for seven days, the preliminary determina tion for the sunset review is presently due on
3 May 2010. Because of the circumstances described a bove with regard to the original investigation
and the subsequent reviews, including USDOC's us e of zeroing, the use of a country-wide rate, and
the respondent selection methodology which prevente d certain producers and exporters from having
the opportunity to receive individual rates, the o ngoing sunset review is inconsistent with the
Anti-Dumping Agreement. Each of these practices has a substantial and possibly determinative impact
on the USDOC's sunset review determination because of the effect on the dumping margins calculated
during the administrative reviews. Accordingly, Viet Nam considers as a consequence of the
inconsistencies set forth in Sections a-c above that the USDOC sunset review is inconsistent with
Articles 11.2 and 11.3 of the Agreement.

3. Request
 Viet Nam hereby respectfully requests that a pane l be established, with the standard terms of
reference, by the Dispute Settlement Body pursuant to Articles 4.7 and 6 of the DSU, Article XXIII of
the GATT 1994, and Article 17.4 of the Anti-Dumping Agreement. Viet Nam requests that this panel
be placed on the agenda of the meeting of the Dispute Settlement Body on 20 April 2010.