Document: WT/DS404/R Page F-1 ANNEX F ORAL STATEMENTS OF THE PARTIES AT THE SECOND SUBSTANTIVE MEETING OF THE PANEL OR EXECUTIVE SUMMARIES THEREOF 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 F

ORAL STATEMENTS OF THE PARTIES AT THE SECOND
SUBSTANTIVE MEETING OF THE PANEL OR
EXECUTIVE SUMMARIES THEREOF

Contents Page
Annex F-1 Executive Summary of the Opening Statement of Viet Nam at
the Second Meeting of the Panel
F-2
Annex F-2 Closing Statement of Viet Nam at the Second Meeting of the
Panel
F-7
Annex F-3 Executive Summary of the Opening Statement of the
United States at the Second Meeting of the Panel
F-11

ANNEX F-1

EXECUTIVE SUMMARY OF THE OPENING STATEMENT OF
VIET NAM AT THE SECOND MEETING OF THE PANEL

I. OVERVIEW

1. Viet Nam would like to again thank the Panel for the work done thus far in connection with
this dispute. As an initial matter, Viet Nam would like to very briefly address a claim made
repeatedly by the United States throughout this proceed ing: that is, that Viet Nam is "inventing"
obligations not present in the Anti-Dumping Agre ement. The Anti-Dumping Agreement is not
concerned solely with the obligations facing the administering authority. In addition to these
obligations, the Anti-Dumping Agre ement also grants certain rights to the exporters and producers
subject to the antidumping proceeding. The Appella te Body, panels, and authorities therefore have a
duty – an obligation – to ensure that these rights ar e safeguarded against the interests of the domestic
parties.
1

II. ARGUMENTS OF THE PARTIES PERTAINING TO THE USDOC'S ZEROING
METHODOLOGY

2. We begin with the claims related to use of the zeroing methodology. The United States first
argues that, "there can be no violation of the AD Agreement or the GATT 1994 when 'zeroing' has no
impact on the margins of dumping calculated." The United States' argument ignores the plain
language of Article 9.3 and should be dismisse d. The first sentence of Article 9.3 imposes
two independent obligations on the authority. The provision requires that "[t]he amount of the
anti-dumping duty shall not exceed the margin of dumping as established under Article 2." The
first obligation of the authority is to determine a "margin of dumping as estab lished under Article 2."
This requirement serves an important purpose: without guidelines for calculating the ceiling amount
of duties that may be applied, the authority c ould adopt a methodology that produces an artificially
inflated dumping margin, such as zeroing, rendering the ceiling of Article 9.3 meaningless. These
words must be given effect.

3. The second argument of the United States is that Viet Nam has shown neither that the zeroing
methodology may be challenged on an as such basis nor that zeroing is as such inconsistent with the
Anti-Dumping Agreement. With these claims, the Un ited States would have the Panel disregard clear
Appellate Body findings that directly address th ese two arguments. First, the Appellate Body
concluded on multiple occasions that the zeroing methodology can be susceptible to challenge on an
as such basis; the zeroing proce dures at issue then and the zeroing pr ocedures at issue in this dispute
are the same, and must be analyzed in the same ma nner. Second, the Appellate Body has repeatedly
found the exact procedures at issue here to be in consistent with the Anti-Dumping Agreement.
Article 3.2 of the DSU requires security and predicta bility in the dispute settlement process. Refusing
to recognize prior determinations involving identical factual situations frustrates these goals. It is
absurd that countries must continue to waste their limited resources to cont est a practice repeatedly
found by the DSB to be inconsistent as such with the Anti-Dumping Agreement. It cannot be the case
that in doing so, countries must also re-litigate in full these identical issues.

1 Appellate Body Report, European Communities – Anti-Dumping Duties on Malleable Cast Iron Tube
or Pipe Fittings from Brazil, WT/DS219/AB/R, adopted 18 August 2003, DSR 2003:VI, 2613 at para. 81.

4. The third argument of the United States regard s Viet Nam's interpretation of Article 2.4.2 and
specifically interpretation of the word "investigation" in that provision. Viet Nam asks the Panel to
consider the plain meaning of the word "investig ation." While the United States would ignore this
definition, it cites to no Appellate Body determin ations that support disregarding the first step of
treaty interpretation: that is, the plain meaning of the text. Viet Nam reminds the Panel that
"investigation" is defined as a "systematic inquiry; a careful study of a particular subject." There can
be no question that an antidumping assessment pro ceeding constitutes a "systematic inquiry" into the
proper amount of duties to be assessed. Further, Vi et Nam notes that the Un ited States' contextual
discussion omits Article 6, which governs the collecti on and evaluation of evidence. Article 6 refers
repeatedly to the "investigation," but does not set forth separate rules for an assessment proceeding.

III. ARGUMENTS OF THE PARTIES PERTAINING TO THE ALL-OTHERS
("SEPARATE") RATE APPLIED IN THE SECOND AND THIRD
ADMINISTRATIVE REVIEWS

5. We will now turn to issues concerning the a ll others – or separate – rate and whether the
USDOC assigned a permissible separate rate to comp anies not selected for individual examination in
the second and third administrative reviews. The Un ited States' first argument is that Article 9.4
imposes no obligation on an authority under the presen t factual scenario. Viet Nam is asking the
Panel to protect the rights of respondent parties th at have literally zero recourse against an authority
that – according to the United States – can operate w ith complete discretion in this scenario. It is
these rights of respondent parties under the Anti- Dumping Agreement that the Appellate Body
considered when it concluded that Article 9.4 pr ohibits actions prejudicial to non-investigated
companies and that this Panel is asked to protect.
6. The United States' second argument, that an authority may use data from any segment of an
antidumping proceeding when calculating the ceiling rate for companies not individually investigated,
is illogical and contrary to the terms of th e Anti-Dumping Agreement. We would note the
significance of the cross-reference in Article 9.4 to the companies selected for individual review
pursuant to Article 6.10. This makes a direct link between the companies selected for that
investigation with the calculated all others rate. Moreover, the Appellate Body in EC – Tube or Pipe
Fittings recognized this principle, stating that use of a period of investigation "assures the
investigating authority and exporters of a consis tent and reasonable methodology for determining
present dumping, which anti-dumping duties are intende d to offset." This right applies to all
exporters of subject merchandise.

7. The United States' third argument that the factual records of the second and
third administrative reviews support the "determina tion" that separate rate companies had dumping
margins of 4.57 percent relies on a distorted reading of the facts. The United States begins by
asserting that Viet Nam did not raise any claims under Article 17.6(i) in the Panel request.
Article 17.6(i) provides the standard by which the Panel must evaluate the factual conclusion reached
by the USDOC in calculating the Article 9.4-prescribed all others rate. This is the general obligation
of the Panel in dispute resolution, and just as Viet Nam need not cite to Article 17.6(ii) in the panel
request to state the standard of review for lega l claims, any citation to Article 17.6(i) would be
misplaced. Nonetheless, Article 17.6(i) requir es that "the panel shall determine whether the
authorities' establishment of the facts was proper and whether their evaluation of those facts was
unbiased and objective." Thus, the Panel must confir m that the authority met this obligation when
confronted with an Article 9.4 lacuna situation.

8. The United States relies on a selection of largely ir relevant facts to justify the applied rate of
4.57 percent. The United States does not find releva nt – and in fact appears to completely ignore –
the data of individually examined companies that, like the separate rate companies, complied with all
USDOC requests. The USDOC ignored all of the act ual sales data on the record when determining
the rate for the fully cooperating, non-investigat ed companies. Instead, the USDOC relied on the

non-cooperation of some companies to justify the ra tes applied to cooperating companies. Separate
rate companies, which fully cooper ated with the USDOC's investiga tion, are therefore penalized for
the inaction of companies to which they have no re lation. As a result, certain cooperating companies
not selected for individual examination are being unfairly prejudiced relative to other cooperating
companies; that is, those selected for individual examination. This is not an unbiased or objective
result.

9. Viet Nam directs the Panel's attention to the USDOC's recent revised or "remand"
determination for the second administrative review. The United States Court of International Trade
agreed with the position taken by Viet Nam's in this dispute that the assessed duty of 4.57 percent
bears no relationship to the separate rate companies' actual margin of dumping. To remedy this
defect, the USDOC calculated dumping margins for the 23 separate rate companies based on a
comparison of sales information they provided to the USDOC and the normal values of the
individually investigated compan ies. These calculations produced evidence of no dumping for all
23 separate rate companies, further illustrating th e absence of any evidence supporting the all others
rate applied in the original determination of the second administrative review.

10. Finally, we would note that the margin of dumping assigned to the separate rate companies
not only was not supported by any factual information on the record, but also was certainly in excess
of "the margin of dumping" that would have been established under Article 2. Thus in reviewing the
separate rate, the Panel should find that neither the factual determination nor the legal interpretation of
the United States met the standards of Articles 17.6(i) or 17.6(ii) respectively.

IV. ARGUMENTS OF THE PARTIES PERTAINING TO THE RATE APPLIED TO THE
VIETNAM-WIDE ENTITY

11. We next address the United States' arguments re garding application of a rate based on adverse
facts available to what has been called the Vietna m-wide entity. The United States first argues that
record evidence supported the USDOC's presumption that all companies are controlled by the
government, basing the presumption of government owne rship, and the existence of a Vietnam-wide
entity, exclusively on the findings contained in a memo prepared by the USDOC. Two important
facts not mentioned by the United States must be highlighted regarding this memo. First, the USDOC
did not prepare the memo in connection with the shrimp antidumping proceeding at issue in this
dispute and the memo provides no information on the ownership structure of the shrimp industry in
Viet Nam. The USDOC can cite to no evidence in the memo to conclude broad state ownership of the
shrimp industry; it can only cite to general c onclusions on the economy as a whole, which may have
little or no resemblance to the reality of the shrimp industry. The second important fact regarding this
memo is the date: The USDOC published the memo on 8 November 2002, over eight years ago.
Despite the rapid pace at which Viet Nam's econom y continues to develop, the USDOC relies on the
generalized conclusions drawn in a memo from ove r eight years ago to presume that all shrimp
companies are currently owned by the government of Viet Nam. The United States has no basis
under Articles 6.8 or 6.10 for concluding that the known and unknown sub-entities that allegedly
comprise the Vietnam-wide entity may all be treated as a single entity.

12. The United States next relies on a misleading presen tation of the facts to argue that its actions
with regard to the collection of detailed owne rship and sales process information from shrimp
companies not individually examined is not discrim inatory. The United States appears to imply that
in market economy cases companies not selected fo r individual investigation must likewise as a
matter of course submit extensive affiliation and sales pr ocess information. This insinuation is false.
The USDOC only requests affiliation information as a matter of course from individually examined
companies in market economy cases.

13. For the third administrative review, the Un ited States next argues that the USDOC simply
applied to the Vietnam-wide entity the only rate ever applied to the Vietnam-wide entity. On this fact,

the United States is correct; left unsaid in the Un ited States' argument is that the only rate ever
applied to the Vietnam-wide entity was based upon adverse facts available. That the USDOC had
previously applied the rate to the Vietnam-wide en tity does not alter the facts available nature of the
rate. Despite lacking any basis for doing so, th e USDOC applied a rate based entirely on adverse
inferences to the Vietnam-wide entity.

14. Finally, we refer the Panel to the recen t report of a Panel that found the European
Communities' use of an identical, country-wide rate practice to be inconsistent with WTO obligations.
The Panel in EC – Fasteners concluded that the EC's "individual treatment" test violates Articles 6.10
and 9.2 of the Anti-Dumping Agreement and Article I:1 of the GATT 1994. Under the individual
treatment test, as with the USDOC's separate rate test, the EC "presumes that the State should be
considered a 'parent company'" and requires compan ies to establish independence from the state. The
Panel first concluded that reliance on this presu mption violates Article 6.10 of the Anti-Dumping
Agreement, finding that "sampling is the sole exception to the rule of individual margins" and that
reliance on a presumption of state control could not override this general rule . Based on application
of the presumption, the test violates Article 6.10 "in that it conditions the calculation of individual
margins for producers on the fulfillment of the IT test ." The Panel also found the EC's conduct to be
discriminatory towards Chinese producers in violation of Article I:1 of GATT 1994. The Panel
concluded that this requirement will "result in imports of the same product from different WTO
Members being treated differently in anti-dumping in vestigations conducted by the European Union."
As the Panel in EC –Fasteners recognized, there is not a single provision of the Anti-Dumping
Agreement or any other WTO Agreement that allows for such treatment.
V. ARGUMENTS OF THE PARTIES PERT AINING TO THE LIMITED SELECTION
OF INDIVIDUALLY INVESTIGATED RESPONDENTS

15. Finally, Viet Nam would like to address the United States' arguments regarding the limited
selection of mandatory respondents. First, the United States addresses Viet Nam's claims under
Article 6.10.2, concluding that the USDOC has no obligation to accept voluntary respondents for the
measures at issue. We remind the Panel that th e final sentence of Article 6.10.2 requires that
"[v]oluntary responses shall not be discouraged." As fully explained in Viet Nam's second written
submission, the voluntary respondent treatment sta ndard applied by the USDOC would prohibit in all
measures relevant to this dispute the addition of a voluntary respondent. Furthermore, the actions of
the USDOC in the third administrative review illu strate this discouraging behavior, as the USDOC
ignored repeated efforts by an entity to gain some assurance that it would be properly treated as a
voluntary respondent.

16. The final United States argument concerns Viet Nam's interpretations of Articles 11.1
and 11.3 of the Anti-Dumping Agreement. Notably, the United States' discussion of Article 11.1
completely ignores the actual language of the Article, which is unambiguous and requires, in full, that
"an anti-dumping duty shall remain in force only as long as and to the extent necessary to counteract
dumping which is causing injury." These words mu st be given meaning. The Article provides
respondent entities with important and clearly articulated rights, and the United States cannot be
allowed to unilaterally eliminate these rights fr om the Agreement. The United States' argument
regarding Article 11.1 rests exclusively upon citation to Appellate Body determinations, citations that
are both misleading and incomplete. In the first instance, the United States claims, "[a]s an initial
matter, as the Appellate Body has confirmed, Article 11.1 does not impose any independent or
additional obligations on Members," citi ng to the Appellate Body's report in EC – Tube or Pipe
Fittings. The Appellate Body did indeed uphold certain findings of the Panel and cited to the specific
paragraphs of the Panel report being upheld, but no ne of which contain the stated proposition or even
concern the alternative claims made under Article 11.1.
2 Moreover, paragraph 81 of that Appellate

2 Appellate Body Report, EC – Tube or Pipe Fittings at para. 84.

Body report, cited by the United States, actually ap pears to contradict the proposition for which it was
cited.

17. The United States also relies heavily on the Appellate Body's decision in US – Corrosion-
Resistant Steel Sunset Review for the proposition that the words of Article 11.1 have no meaning.
Again, however, the United States has selectively omitted important caveats in the Appellate Body's
finding, in which the Appellate Body made clear that any purported finding with regard to
Article 11.1 was contingent upon a company's ability to have the order revoked through review
proceedings separate and apart from a sunset review. As previously explained, this option does not
exist for company's not selected for individual exam ination. When viewed in full, the Appellate
Body's determinations do not support the United States' interpretation.

18. Finally, we would again remind the Panel that it is not Viet Nam's position that the
United States cannot invoke Article 6.10 in situatio ns where it is not practicable to investigate all
respondents either requesting a review or for whic h a review has been re quested. Rather, it is
Viet Nam's position that an authority must reconcile its actions under Article 6.10 with the rights of
the respondents under other provisions of the Anti-Dumping Agreement.

VI. CONSEQUENTIAL VIOLATION OF UNITED STATES' OBLIGATIONS UNDER
THE ANTI-DUMPING AGREEMENT

19. The cumulative effect of the challenged pr actices has resulted in the USDOC finding that
dumping is likely to continue or recur if the antidumping duties are terminated pursuant to the
recently concluded sunset review.
3 Thus, the continued use of these practices has resulted in a
violation of the obligations imposed on aut horities under Article 11.3 of the Anti-Dumping
Agreement. Moreover, the continued use of zeroi ng by the USDOC in the fourth administrative
review resulted in a finding of margins of dumping for the individually investigated respondents, a
margin of dumping which would not exist but for the continued use of zeroing. Additionally, the
continued use of all practices subject to this Panel proceeding has resulted in actions in the
fourth administrative review which continue to be inc onsistent with Articles 2, 2.4, 6.8, 6.10, 9.3, 9.4,
11.1, 11.3 and Annex II of the Anti-Dumping Agreement.

20. Similarly, the USDOC has continued to use the exception provided in Article 6.10 of the
Anti-Dumping Agreement to limit the number of individually investigated companies in the
fifth administrative review and, in light of the USDOC 's prior conduct, we expect that the use of the
challenged practices will continue in the fifth admi nistrative review with a consequent violation of
Articles 2, 2.4, 6.8, 6.10, 9.3, 11.1, 11.3 and Annex II of the Anti-Dumping Agreement.

VII. CONCLUSION

21. Based on the above, Viet Nam hereby requests that the Panel render the conclusions described
in Viet Nam's Second Written Submi ssion. In rendering such conclusi ons, the Panel should take into
consideration that none of the complained of practic es require a change in legislation or regulations.
Under these circumstances, the Panel should recomme nd that the United States bring its practices into
conformity with its obligations as specified in the Panel's report immediately.

3 Certain Frozen Warmwater Shrimp from the Socialis t Republic of Vietnam: Final Results of the
Five-Year "Sunset" Review of the Antidumping Duty Order, 75 Fed. Reg. 75965 (7 December 2010), available at
http://ia.ita.doc.gov/frn/summary/vietnam/2010-30664.txt.

ANNEX F-2

CLOSING STATEMENT OF VIET NAM AT THE
SECOND MEETING OF THE PANEL

1. I would like to begin Viet Nam's closing stat ement in this Panel proceeding by thanking the
members of the Panel and the Secretariat for their pa tience throughout this proceeding. At this point,
I believe every argument has been stated and rest ated many times. This, of course, makes it
challenging to deliver a closing statement which do es not repeat arguments that have already been
made. I hope to avoid this as much as possible.

2. Unfortunately, at the outset I do want to re iterate a comment made in Viet Nam's opening
statement yesterday; namely, that Viet Nam has neither invented obligations which do not exist under
the Anti-Dumping Agreement nor engaged in interpreta tions which are inconsistent with the norms of
treaty interpretation as set forth in the Vienna Convention. Rather, Viet Nam has, with respect to each
claimed violation of U.S. obligations, relied on th e language of the Anti-Dumping Agreement, prior
and consistent Appellate Body Reports interpreting particular pr ovisions of the Agreement, the object
and purpose of specific provisions of the Anti-Dump ing Agreement, as well as the broader object and
purpose of the Agreement itself and of the Disput e Settlement Understanding, and the standards of
review set forth in Article 17.6 of the Anti-Dumping Agreement.

3. Thus, with respect to the issue of zeroing, we have relied upon the consistent interpretation by
the Appellate Body and its rationale in finding th at the practice of zeroing in periodic reviews is
contrary to various subparagraphs of Articles 2 and 9 of the Anti-Dumping Agreement. The
Appellate Body has found zeroing to be inconsiste nt with these Articles both "as applied" and "as
such." Viet Nam has similarly argued that the zeroing in the measures befo re this Panel is "as
applied" and "as such" inconsistent with U.S. oblig ations. There is no invented obligation. Nor is
there any invented inconsistency, as the United St ates applied zeroing in calculating both the margins
of dumping for the individually examined companies and the all others "separate" rate in the second
and third administrative review, and continues this pr actice as illustrated by the results of the fourth
administrative review.

4. Our claim with respect to the all others ra te is equally well grounded. We concede that
Article 6.10 allows for sampling in periodic reviews. That is not the question before this Panel.
Rather, there are two questions be fore this Panel related to the U.S. application of the exception
provided in Article 6.10. First, does the lacuna in Article 6.10 and 9.4 allow for the application of an
all others rate that cannot be considered objective or unbiased since there is a total absence of factual
support for the rate applied by the United States. He re we rely on the factual standard of review set
forth in Article 17.6(i) of the Anti-Dumping Agreement, not some invented standard. Second, does
the exception of Article 6.10 and 9.4 permit a Memb er to ignore the most fundamental obligations
regarding the amount of the anti-dumping duty to be assessed and the duration of the anti-dumping
measures as provided in Articles 9.3, 11.1 and 11.3. These are not invented obligations; rather they
are obligations that are clearly ar ticulated in the Agreement and whic h relate to the most fundamental
rights protecting respondents under the Agreement, namely the amount and duration of anti-dumping
duties.

5. Similarly, Viet Nam's arguments regarding the rate applied to the so-called Vietnam-wide
entity are grounded in the obligations of the Anti-Du mping Agreement as set forth in the text of that
Agreement. First, Articles 6.10 and 9.4 clearly articulate the exclusive methodology for determining
the anti-dumping duties to be applied to non-investig ated companies. There is simply no support for

applying a rate other than the all others rate to the so-called Vietnam-wide entity. Furthermore,
Article 6.8 and Annex II to the Anti-Dumping Ag reement stipulate the necessary conditions for
applying facts available and facts available with a dverse inferences. The United States demonstrated
in the third administrative review that the quan tity and value information on which they sought to
justify the application of facts av ailable with adverse inferences was not "necessary" information and,
thereby, undermined this justification for applyi ng facts available with adverse inferences to the
so-called Vietnam-wide entity. Nor has the United States provided any justification whatsoever for its
so-called separate rate questionnaire or certification which would allow it to apply facts available with
adverse inferences for failure by companies to submit such information even if such information were
directly requested. Again, Viet Nam is not invent ing obligations but is basing its position on the text
of the Anti-Dumping Agreement. In this regard, we would again call the Panel's attention to the
recent Panel Report in EC – Fasteners which finds that there is no basis for an authority to presume
government control of non-investigated entities and no basis to apply a rate other than the all other
rate to any non-investigated entities.

6. Finally, there is the question of continued use by the United States of practices which are
inconsistent with its obligations under the Anti-Dump ing Agreement. All of the practices subject to
this Panel proceeding have been applied by the United States beginning with the original investigation
and have carried through to the fourth administrative review. In addition, the margins of dumping
determinations based on these WTO inconsistent pr actices served as the basis for the United States'
analysis of whether dumping was likely to con tinue or recur if the anti-dumping measures were
terminated pursuant to the sunset review. The continued application of these practices will result in
(1) the continued assessment of duties in excess of the margins of dumping for all or some of the
exporters and producers of shrimp from Viet Nam and (2) prevent the antidumping duty order from
ever being terminated pursuant to the rights of th e producers and exporters of shrimp from Viet Nam
under Articles 11.1 and 11.3.

7. In contrast to Viet Nam's position on each of these issues, the positions of the United States
on each of the issues subject to this proceedi ng are contrary to the precise language of the
Anti-Dumping Agreement, involve interpretations inc onsistent with the rules of treaty interpretation
set forth in Articles 31 and 32 of the Vienna Convention, ignore the object and purpose of the
Anti-Dumping Agreement and the specific provision s of that Agreement, ignore the object and
purpose of the Dispute Settlement Understanding, and/ or are contrary to consistent Appellate Body
precedent.

8. In the case of zeroing, the United States relies on arguments which have been rejected by the
Appellate Body time and time again. The Appellate Body's findings on zeroing are, in turn, based on
a careful analysis of the language of Article 2 of the Anti-Dumping Agreement which requires a "fair
comparison" and the calculation of antidumping duti es based on the product as a whole. The practice
of zeroing, which eliminates from the calculation of the margins of dumping those transactions in
which export price is above normal value, is not a "fair comparison" and does not take into account
whether the product as a whole has been dumped in the importing country market. The United States
has not presented anything new in regards to zer oing which could or should motivate the Panel to
overturn established and consistent Appellate Body precedent.

9. The United States has also tried to justif y its position on zeroing by interpreting the phrase in
Article 2.4.2 "investigation phase" to limit the appli cation of Article 2.4.2 to initial investigations of
dumping, excluding it application in investigations for purposes of duty assessment and collection.
However, there is no basis for such a distinction if the rules of treaty interpretation are properly
applied. First, the plain meaning of the word "i nvestigation" is applicable to all segments of the
proceeding during which the authority must make a "systematic inquiry" of normal value and export
prices in order to determine the margins of dumping. The United States attempts to read the word
"first" or "original" into this phrase, words that si mply do not appear in the text of the Agreement.
Second, the U.S. interpretation would lead to absurd results. Article 2.4.2. would not apply to duty

assessment and collection investigations, thereby leaving an enormous gap in the Anti-Dumping
Agreement with respect to how the comparison of normal value and export price should be made
when assessing and collecting duties. It is absu rd to conclude that the negotiators of the
Anti-Dumping Agreement did not intend to provide a comparison methodology to be applied for
purposes of duty assessment and collection. Third, if the word "investigation" has a special meaning
in Article 2.4.2, consistency demands that this same special meaning apply elsewhere in the
Agreement. Article 6, for example, repeatedly u ses the word "investigation." Article 6 provides the
evidentiary rules governing antidumping proceedings. If the word "investigation" is interpreted as the
United States suggests, not only would there be no guidance in the Agreement on how to make
pricing comparisons for purposes of duty assessment and collection, there would be no evidentiary
rules to guide authorities except in the original investig ation. Again, it is absurd to conclude that the
negotiators did not intend to provide evidentiary rules for purposes of duty assessment and collection.

10. As regards the all others or "separate" ra te, the United States urges the Panel to adopt an
interpretation of the exception of Article 6.10 and 9.4 that would allow authorities to ignore their
obligations under Articles 9.3, 11.1 and 11.3 in any situation where it is impracticable to investigate
all respondents individually. These provisions, which the United States urges the Panel to allow it to
disregard, provide vital protections for respondent s subject to anti-dumping measures. These include
limiting the amount of anti-dumping duties to the margins of dumping, limiting the duration of
anti-dumping duties for only so long and to the extent necessary to prevent injurious dumping, and
providing for a mechanism to terminate the anti-dum ping duties. There is nothing in Articles 6.10
or 9.4, much less elsewhere in the Anti-Dumping Agreement, which would allow the application of
Article 6.10 or 9.4 in a manner which would allo w authorities to nullify other obligations under the
Agreement. Nor is the United States' interpretati on consistent with the object and purpose of the
Anti-Dumping Agreement. In short, the interpreta tion being urged on the Panel by the United States'
leads to an absurd result.

11. Having used Article 6.10 and 9.4 to elim inate basic rights of Vietnamese exporters and
producers under the Anti-Dumping Agreement, the United States proceeds to impose an anti-dumping
duty on these same respondents unsupported by any f acts and which is calculated using zeroing. In
the face of having found zero or de minimis margin s for every individually investigated company in
periodic reviews since issuance of the anti-dumping duty order, the United States imposes a margin of
dumping on the non-investigated respondents based on the pre-order margin of dumping found in the
original investigation, a margin of dumping calculated using zeroing. A margin of dumping
unsupported by any facts on the record of the relevant periodic review cannot be found by the Panel to
be either objective or unbiased, as is required by Ar ticle 17.6(i). Furthermore, a margin of dumping
which is calculated using zeroing has been found to be "as applied" and "as such" inconsistent with
the obligations of the Anti-Dumping Agreement.

12. As noted in our opening statement, in its second remand determination in the U.S. Court of
International Trade litigation Amanda Foods v. United States, the U.S. Department of Commerce,
upon further investigation in connection with the second administrative revi ew, remained unable to
find any evidence that the separate rate compan ies were engaged in dumping during the period
covered by the second administrative review. This finding reinforces Viet Nam's position that the
margins of dumping assigned to the separate ra te respondents was not based on an objective and
unbiased evaluation of the facts.

13. Finally, the United States has invented a new category of responde nt, the Vietnam-wide
entity, which has no foundation in any provision of the Anti-Dumping Agreement. Article 6.10
and 9.4 address the treatment of non-investigated respondents in cases where an authority has deemed
the individual investigation of all respondents to be impracticable. No other provision of the
Anti-Dumping Agreement addresses the treatment of non-investigated respondents and no provision
of Viet Nam's Protocol of Accession or the accompanying Working Party Report addresses the
treatment of non-investigated respondents. Thus, Articles 6.10 and 9.4 provide the exclusive basis for

determining the margins of dumping for non-i nvestigated respondents. Neither provision
contemplates a presumption of government contro l, differential treatment between government
controlled and non-government controlled non-investig ated producers and exporters, or the need for
non-investigated producers or exporters to ove rcome a presumption of government control by
responding to a questionnaire from the authorities. The recently released Panel Report in EC –
Fasteners supports the position of Viet Nam on these issues.

14. As a consequence of these practices and the continued use of these practices by the
United States, Vietnamese producers and exporters ha ve been assessed duties in excess of the margin
of dumping, including at the unwarranted rates im posed on separate rate and Vietnam-wide rate
respondents; they continue to be assessed duties in excess of the margin of dumping as illustrated by
the results of the fourth administrative review; and they have been denied the opportunity to ever
demonstrate the absence of dumping and thereby obtain a termination of the anti-dumping measures
as contemplated by Articles 11.1 and 11.3 of the Anti-Dumping Agreement. We hope that the Panel
Report will serve to reinstate the rights of Vietnamese respondents under the Anti-Dumping
Agreement which have been denied to them and con tinue to be denied to them by the practices of the
United States.

15. In closing, I and my colleagues appearing on behalf of Viet Nam in this proceeding would
like to thank the Panelists and the Secretariat for the time, effort and energy that each of you have
devoted to this proceeding. We look forward to receiving your report in this proceeding.

ANNEX F-3

EXECUTIVE SUMMARY OF THE OPENING STATEMENT
OF THE UNITED STATES AT THE SECOND MEETING
OF THE PANEL

1. Consistently, throughout this dispute, Viet nam's arguments have failed to meaningfully
address the specific rights and obligations as establi shed by the covered agreements. Instead of
addressing actual obligations to which Members ag reed, Vietnam departs from the accepted rules of
treaty interpretation and invents oblig ations found nowhere in the text of the covered agreements. At
the end of its second written submission, Vietnam makes six specific requests for findings. We will
clarify what each request would entail and, importantly, why the Panel should not do what Vietnam
asks.

2. In its first request for findings, Vietnam asks the Panel to find:

That the application of zeroing to individua lly 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.

3. Vietnam's claims under Article 9.3 of the AD Agreement and Article VI:2 of the GATT 1994
fail because Vietnam has not demonstrated that any antidumping duties were applied in excess of the
margin of dumping with respect to the individual ly examined exporters/producers in the second and
third administrative reviews. As we have explaine d, Article 9.3 and Article VI:2 provide that any
antidumping duty applied shall not exceed the marg in of dumping. Because Vietnam has not
established that any antidumping duty was applied at all, Vietnam has not established that any
antidumping duty was applied in excess of the margin of dumping.

4. Vietnam asks the Panel nevertheless to find that the United States acted inconsistently with
Article 9.3 because that provision limits the antidumping duty to the margin of dumping "as
established under Article 2." Vietnam suggests that , "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." Vietnam's in terpretation of Article 9.3 is incorrect and would
be redundant of the obligations in Article 2, which ar e found within the text of that provision. In any
event, however, this aspect of Vietnam's claim under Article 9.3 is dependent upon Vietnam's separate
claims under Articles 2.1, 2.4.2, and 2.4 of the AD Agreement, which are without merit.

5. Article 2.1 describes the situa tion wherein "a product is to be considered as being dumped."
The Appellate Body has explained that Article 2.1 is a "definitional" provision, which, "read in
isolation, [does] not impo se independent obligations."
1 It is not clear how the challenged measures
could be found inconsistent with a definition.

6. Vietnam also asks the Panel to find that the a pplication of zeroing to individually investigated
respondents in the second and third administrative revi ews is inconsistent with Article 2.4.2 of the
AD Agreement. For this claim to succeed, the Pa nel must find that Article 2.4.2 applies to
administrative reviews. However, Article 2.4.2, by its terms, is limited to the "investigation phase."
The Appellate Body and prior pane ls have recognized distinctions 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 express limitation of the obligations in Article 2.4.2 to the investigation phase is
consistent with the differences in the antidumpi ng systems applied by Members for purposes of the
assessment phase. If the obligati ons regarding comparison methodologies found in Article 2.4.2 were
applied to the assessment of antidumping duties, this divergence of assessment systems would not be
possible. Thus, to retain the flexibility for Memb ers to apply different assessment systems, it was
necessary to limit the requirements of Article 2.4.2 to the investigation phase.

7. Lastly, Article 2.4 of the AD Agreement requi res investigating authorities to make a "fair
comparison" between normal value and export pri ce and then provides detailed guidance as to how
that fair comparison is to be made. Article 2. 4 recognizes that the normal value and export price
transactions to be compared may occur, among other things, with respect to models with differing
physical characteristics, at distinct levels of trad e, pursuant to different terms and conditions, and 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 diffe rences that affect price comparability. This all
occurs prior to making the comparisons between e xport price and normal value to ensure that the
comparisons are "fair" comparisons. Vietnam proposes an interpretation of Article 2.4 that would
encompass the aggregation of comparisons, which takes place, if at all, after the comparisons are
made. Nothing in the text of Article 2.4 indicat es that the scope of that provision reaches such
post-comparison aggregation.

8. The open-ended approach inherent in Viet nam's interpretation of the "fair comparison"
obligation in Article 2.4 would result in disputes that are virtually impossible to resolve in any
principled, text-based way. Several prior panels have cautioned against such a broad, open-ended
understanding of the "fair comparison" requirement.

9. In its second request for findings, Vietnam asks the Panel to find:

That the USDOC's zeroing methodology is, as su ch, inconsistent with Article 9.3 of the
Anti-Dumping Agreement and Article VI:2 of the GATT 1994.

10. Vietnam asserted very late in this proceeding, in response to a written question from the Panel
after the first substantive meeting, that it is seek ing an "as such" finding against "zeroing." However,
Vietnam has advanced no arguments and pointed to no evidence that would support a finding that any
"zeroing methodology" exists as a measure that can be challenged "as such." As the Appellate Body
explained in US – Zeroing (EC):

[A] complaining party must clearly establish, through arguments and supporting
evidence, at least that the alleged "rule or norm" is attributable to the responding
Member; its precise content; and indeed, that it does have general and prospective
application. It is only if the complaini ng party meets this high threshold, and puts
forward sufficient evidence with respect to each of these elements, that a panel would
be in a position to find that the "rule or norm" may be challenged, as such.
2
 In this dispute, Vietnam has pointed to no evidence and made no argument that would
"clearly establish" that "the alleged 'rule or norm' is attributable to the [United States]; its precise
content; and indeed, that it does have general and prospective application." Instead Vietnam merely
cites repeatedly to prior panel and Appellate Body reports. While "[e]vidence adduced in one
proceeding, and admissions made in respect of the same factual question about the operation of an
aspect of municipal law, may be submitted as evidence in another proceeding," 3 it is necessary to

2 US – Zeroing (EC) (AB), paras. 197-198 (citations omitted).

actually adduce the evidence and point to any such admissions. Vietnam has not done so with respect
to the existence of any "zeroing methodology." Th e United States submits that the Panel lacks any
evidentiary basis for finding that the "zeroing methodol ogy" is a measure that is inconsistent, as such,
with Article 9.3 of the AD Agreement and Article VI:2 of the GATT 1994.

11. In its third request for findings, Vietnam asks the Panel to find that:

The use of margins of dumping determined using the zeroing methodology to calculate the
all others ("separate") rate in the second an d third administrative reviews is, as applied,
inconsistent with Articles 9.4, 9.3, 2.4.2 and 2.4 of the Anti-Dumping Agreement.

12. Article 9.4 of the AD Agreement, on the face of its text, establishes only a limited obligation
related to the maximum antidumping duty that ma y 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 assess ment review. 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 individuall y examined companies are all zero, de minimis, or based on facts
available. And Article 9.4 certainly does not prohibit "zeroing."

13. To the extent that any prohibition of "zeroi ng" exists in the AD Agreement, it has been
identified by panels and the Appellate Body in pr ovisions other than Article 9.4. Even if the
challenged measures were found to be inconsistent with those other provisions, that would not mean
that, as a consequence, the measures are also inconsistent with the limited obligations in Article 9.4.

14. With respect to Article 9.3 of the AD Agreement, Vietnam's Second Written Submission
asserts that "Article 9.3 prohibits the assessment of antidumping duties that exceed the margin of
dumping properly calculated pursuant to Article 2. Thus, the margin of dumping for a respondent,
individually examined or not, serves as the maxi mum for the amount of antidumping duties to be
applied."4 Even if Vietnam were correct that Article 9.3 establishes obligations with respect to the
antidumping duty applied to companies not individua lly examined – and the United States believes
that Vietnam's understanding is not correct – Viet nam's claim under Article 9.3 is nevertheless
dependent on the Panel finding that the separate rate s applied to companies not individually examined
in the second and third administrative reviews were inconsistent with the covered agreements when
they were originally calculated in the original investigation. 5 But those rates were not inconsistent
with the covered agreements when they were origina lly calculated. The rates were not subject to the
covered agreements when they were originally calculated – because the WTO Agreement did not
apply between the United States and Vietnam at that time – and they cannot now be found to have
been inconsistent with the covered agreements at the time they were originally calculated.

15. As we have noted, 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 covere d by the scope of the post-WTO review do not
become subject to the AD Agreement by virt ue of Article 18.3 of the AD Agreement." 6 I n t h i s
dispute, 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. The separate rates
in question were determined once and only once in the original pre-WTO investigation – before the
entry into force of the WTO Agreem ent for Vietnam – and were then applied in the final results for
the second and third administrative reviews.

4 Vietnam Second Written Submission, para. 49 (emphasis added).
5 See Vietnam First Written Submission, para. 214.
6 US – DRAMS, para. 6.14.

16. Vietnam also claims that the separate rates a pplied to companies not individually examined in
the second and third administrative reviews are inconsis tent with Article 2.4.2 of the AD Agreement.
Article 2.4.2 is limited to the "investigation ph ase" and does not apply to determinations in
administrative reviews. Vietnam asks the Panel to ignore the limitation in the text of Article 2.4.2 in
order to find that the determinations in the sec ond and third administrative reviews are inconsistent
with that provision. Furthermore, Commerce made no comparisons of normal value and export price
during the second and third administrative reviews in order to determine the separate rates to apply to
companies that were not individually examined. Commerce relied on rates calculated during the
original investigation, but did not recalculate or otherwise reexamine those rates, and nothing in the
AD Agreement required Commerce to do so. Thus , Commerce took no action during the second and
third administrative reviews that was inconsistent with the obligations in Article 2.4.2 of the
AD Agreement. For Vietnam's claim to succeed, th e Panel would have to find that the pre-WTO
dumping margin calculations performed during the inv estigation were inconsistent with Article 2.4.2
at the time they were calculated. But, as we ha ve explained, that is not possible because the
United States had no WTO obligations with respect to Vietnam at that time.

17. Vietnam also claims that the separate rates a pplied to companies not individually examined in
the second and third administrative reviews are incons istent with Article 2.4 of the AD Agreement.
Article 2.4 establishes an obligation that a "fai r comparison" be made between normal value and
export price and then provides detailed guidance as to how that fair comparison is to be made.
Commerce made no comparisons of normal va lue and export price during the second and
third administrative reviews in order to determine th e separate rates to apply to companies that were
not individually examined. So, there can be no br each of the "fair comparison" requirement based on
action taken by Commerce during the second and third administrative reviews.

18. To the extent that Vietnam's claim is dependent upon a finding that the dumping margins
calculated during the investigation we re inconsistent with Article 2.4 at the time that they were
originally calculated, the claim must fail because such a finding is not possible. The dumping margin
calculations made during the investigation were performed prior to Vietnam's accession to the WTO
and the United States had no WTO obligations with resp ect to Vietnam at that time. Additionally, we
would recall that Article 2.4 does not contain an y obligations in respect of post-comparison
aggregation, and it does not create an obligation to provide for offsets, or a prohibition of "zeroing."

19. In its fourth request for findings, Vietnam asks the Panel to find that the:

Application of an all others ("separate") rate that fails to consider the results of the
individually investigated respondents in th e contemporaneous proceeding and produces an
antidumping duty prejudicial to companies no t selected for individual investigation is, as
applied in the second and third administrative reviews, inconsistent with
Articles 9.4, 17.6(i), and 2.4 of the Anti-Dumping Agreement.

20. No provision of the AD Agreement establishes a contemporaneity requirement with respect to
the antidumping duty rates applied to companies not selected for individual examination when all of
the margins of dumping calculated for examined companies are zero or de minimis or based on facts
available. Article 9.4 of the AD Agreement only establishes limited obligations relating to the
maximum antidumping duty that may be applied to companies not individually examined. However,
when all dumping margins calculated for i ndividually examined companies are zero or de minimis or
based on facts available, as wa s the case in the second and third administrative reviews, then
Article 9.4 does not specify the maximum antidumping duty that may be applied. There is nothing in
the text of Article 9.4 that establishes a contemporaneity requirement in such a situation.
21. Vietnam claims in its second written submi ssion that "The actions of the individually
investigated exporters, all of whom eliminated th eir dumping behavior, constitutes the entirety of the

evidence available on the response of ex porters to the antidumping duty order."
7 Vietnam's claim is
not relevant as a legal matter beca use nothing in the text of Article 9.4 conditions 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 is incorrect as a
matter of fact. In the first and second administrativ e reviews, numerous companies failed to respond
to Commerce's questionnaires and Commerce accordingly determined the margin of dumping for
these companies based on facts available using an a dverse inference. These adverse findings with
respect to dumping cannot be considered evidence that dumping in the industry had ceased, but
Vietnam asks the Panel to ignore these facts.

22. With respect to Vietnam's claim under Article 17.6(i) of the AD Agreement, because Vietnam
did not raise any claims under Article 17.6(i) in its panel request, no claims under this provision are
within the Panel's terms of refere nce. Furthermore, Article 17.6(i) establishes a general obligation in
respect of a dispute settlement panel's assessment of the facts of the matter. On its face,
Article 17.6(i) does not impose any obligations on WTO Members. Thus, it is not clear how a
Member may be found to have acted inconsistently w ith Article 17.6(i). In any event, Article 17.6(i)
does not impose any additional obligations on Member s in a situation in which Article 9.4 of the
AD Agreement does not specify the maximum antidum ping duty that may be applied to companies
not individually examined. Rather, Article 17.6(i) provides a specific standard for the Panel's
examination of Commerce's assessment of the facts.

23. Vietnam contends 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 administrative reviews because "[t]he entire record before the USDOC evidenced an industry
that did not dump subject merchandise above a de minimis amount" and thus, the rates assigned to
companies not individually examined purportedly had "no basis in fact."
8 Nothing in the text of
Article 9.4 conditions a Member's right to appl y antidumping duties to companies that are not
individually examined on a separate factual finding that other companies continued to dump during a
particular period. Even if it did, though, Vietnam's claim would be undermined by the facts: a
number of producers/exporters failed to cooperate in the first and second administrative reviews and
Commerce therefore assigned to them antidumping duty rates determined on the basis of facts
available. This is hardly evidence that dumping had stopped.

24. Vietnam asks the Panel to find that the cha llenged measures are inconsistent with Article 2.4
of the AD Agreement, this time because of the requirement in Article 2.4 that "the sales being
compared be made 'at as nearly as possible the same time.'"
9 Vietnam asserts that this establishes a
general contemporaneity requirement, including with respect to the application of antidumping duties
to companies not individually examined. 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 time"
relates to the calculation underlying the determination of dumping. This obligation does not relate to
the calculation of the maximum antidumping duty that may be applied to companies not individually
examined pursuant to Article 9.4, nor to the actua l antidumping duty applied to such companies when
the duty is based on a previously determined du mping margin. Nothing in the text of the
AD Agreement supports the linkage that Vietnam attempts to establish between Articles 2.4 and 9.4.

25. Additionally, the margins of dumping calculate d during the original investigation were not
inconsistent with Article 2.4 at the time that th ey were calculated, both because the calculations were
performed prior to Vietnam's accession to the WT O and because there is no evidence and Vietnam

8 Vietnam Responses to Panel Questions, Question 22, paras. 60-61; see also Vietnam Responses to
Panel Questions, Question 24, para. 65; see also Vietnam Second Written Submission, paras. 75-76, 80.
9 Vietnam Responses to Panel Questions, Question 20, para. 52.

does not appear to suggest that the comparisons made during the original investigation were not made
"in respect of sales made at as nearly as possible the same time."

26. In its fifth request for findings, Vietnam asks the Panel to find that:

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 reviews, is inconsis tent with Articles 6. 8, 9.4, 17.6(i) and
Annex II of the Anti-Dumping Agreement.

27. As noted earlier, no claim under Article 17.6(i) of the AD Agreement is within the Panel's
terms of reference, and, on its face, Article 17.6(i) does not impose any obligations on WTO
Members. Vietnam appears to invoke Article 17.6(i) in relation to its argument that Commerce
lacked sufficient evidence to jus tify treating the Vietnam-wide entity as a single exporter or producer
comprised of companies that did not demonstrate their independence from the government. However,
the United States and Vietnam agree that, as a general matter, an investigating authority may,
consistent with Article 6.10 of the AD Agreement, treat more than one company as a single entity
based upon the relationship between those companies.
10 In its second written submission, Vietnam
confirms its view "that common control by th e government of multiple entities may permit an
authority to collapse this entity into a single entity and to apply a single rate to this single entity."11

28. The question is whether the facts of record in the second and third administrative reviews
justified Commerce's determinations to treat the Vietnam-wide entity as a single exporter or producer.
We have explained that the facts amply supported Commerce's determinations, and there is no basis
for Vietnam's assertion that Commerce failed to make an "unbiased and objective" evaluation of
the facts.

29. Article 6.8 and Annex II of the AD Agreemen t permit the use of the facts available in any
case "in which any interested party refuses access to, or otherwise does not provide, necessary
information within a reasonable period or significantl y impedes the investigation. ..." Rather than
being limited in its application to individually examined companies, Article 6.8 refers to " any
interested party." That includes companies not selected for individual examination and groups of
companies treated as a single entity. Additionally, contrary to Vietnam's arguments, the quantity and
value information requested was "necessary information" within th e meaning of Article 6.8 and
Annex II. The scope of "necessary information" is not limited only to that information used to
calculate a dumping margin.

30. Because certain companies that were part of the Vietnam-wide entity refused to provide
necessary information in the second administrative review, Commerce applied an antidumping duty
rate to the Vietnam-wide entity that was based upon the facts available. Commerce's application of
facts available to the Vi etnam-wide entity in the second administ rative review was not inconsistent
with Article 6.8 and Annex II of the AD Agreement. 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 ever been applied to it, relying on the same
methodology used for the other separate rate companies in the third administrative review.

31. With respect to Vietnam's claim under Artic le 9.4 of the AD Agreement, as we have
explained, Article 9.4 establishes a limited obliga tion with respect to the maximum antidumping duty
that Members may apply to companies not individua lly examined. Where all the rates calculated for
examined companies are zero or de minimis , as in the measures at issue in this case, then it is not
possible to calculate a maximum antidumping duty according to the terms of Article 9.4, and

10 See, e.g., Vietnam Responses to Panel Questions, Question 35, para. 90.

Article 9.4 does not specify a maximum antidumpi ng duty that may be applied to companies not
individually examined.

32. In its last request for findings, Vietnam asks the Panel to find that:

The USDOC's determinations in the second and third administrative reviews, and on a
continuing basis, to limit the number of indi vidually investigated respondents such that
they restrict certain substantive rights under the Anti-Dumping Agreement is inconsistent
with Articles 6.10, 6.10.2, 9.3, 11.1, and 11.3 of the Anti-Dumping Agreement.

33. Article 6.10 of the AD Agreement does not re quire investigating authorities 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 impr acticable." Vietnam argues that Commerce's
determinations were inconsistent with Article 6.10 because Commerce "made no effort to explore
alternatives" to examine more exporters and produ cers when it limited its examination. Nothing in
the text of Article 6.10, or any other provision of the AD Agreement, requires Commerce to "explore
alternatives" as proposed by Vietnam.

34. With respect to Vietnam's claim under Artic le 6.10.2 of the AD Agreement, Vietnam itself
has put before the Panel the evidence necessar y to demonstrate that Commerce did not act
inconsistently with the obligations in that provi sion. Article 6.10.2 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 considered." The information provided by
Vietnam in response to the Panel's written questi ons demonstrates that the "necessary information"
was never submitted in either the second or third administrative reviews and this conclusively
establishes that Commerce was under no obligation to determine individual margins of dumping for
"voluntary respondents" in those proceedings.
12

35. Vietnam now suggests that Commerce acted inconsistently with Article 6.10.2 by
"discouraging" voluntary responses, contrary to the prohibition against doing so in the last sentence of
that provision.
13 Vietnam offers no evidence of so-ca lled "discouraging behavior" other than
Commerce's determinations to limit its examination, wh ich, as we have explained, are consistent with
the requirements of Article 6.10. Commerce cannot be found to have acted inconsistently with one
provision of the AD Agreement by virtue of its proper application of another provision.

36. Vietnam's assertion that Commerce acted inc onsistently with Article 9.3 because it "failed
throughout the shrimp antidumping proceeding to make any connection between the antidumping
duty assigned to companies not selected for individua l examination and their margin of dumping or
any facts otherwise on the record" makes no sense. 14 Of course there is no connection between the
antidumping duty applied to companies not individua lly examined and "their margin of dumping,"
because no margin of dumping was determined for th em. If Vietnam's interpretation were accepted,
Members would no longer have the right to limit the examination and would, in all cases, be required
to determine individual margins of dumping for a ll companies. Vietnam' s proposed interpretation
reads the second sentence of Article 6.10, and all of Article 9.4, out of the AD Agreement.
37. Vietnam's claims under Articles 11.1 and 11.3 ar e likewise devoid of merit. Vietnam's claims
under Articles 11.1 and 11.3 appear to be dependent on its claims that Commerce's determinations to
limit its examination are inconsistent with Article 6. 10 of the AD Agreement, but we have shown that
they are not. A somewhat more disturbing implication of Vietnam's argument is that, regardless of
whether Commerce's determinations are inconsistent with Article 6.10, the determinations to limit the

12 See Vietnam Responses to Panel Questions, Question 42, para. 100.

examination nevertheless are in consistent with Articles 11.1 and 11.3. But Commerce cannot be
found to have acted inconsistently with one provision of the AD Agreement due to the proper exercise
of U.S. rights under a separate provision of the AD Agreement.

38. Additionally, Vietnam's interpretation that Ar ticles 11.1 and 11.3 "require that an authority
permit revocation determinations on a company-specific basis" is incorrect and inconsistent with prior
Appellate Body reports interpreting these provisi ons. The Appellate Body has confirmed that
Article 11.1 does not impose any independent or additional obligations on Members
15 and that
"Article 11.3 does not require investigating author ities to make their likelihood determination on a
company-specific basis." 16 Vietnam's proposed interpretations have been considered before and
rejected.

39. Finally, in its first, fifth, and sixth requests for findings, Vietnam asks the Panel to make
findings related to the "continued application" of "zeroing," the "continued application" of "an
antidumping duty based on adverse facts availabl e to the Vietnam-wide entity," and Commerce's
determinations "on a continuing basis" to limit it s examination. 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 obligation in Article 6.2 of the DSU.

40. Even if Vietnam had referenced a "continue d use" measure in its panel request, such a
measure appears to be a fictional construct suppo sedly composed of an indeterminate number of
potential future measures that did not exist at th e 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 accruing to Vietnam, and it c onsists of proceedings th at had not resulted in
"final action" at the time of the consultati ons request, as required by Article 17.4 of the
AD Agreement.

41. Additionally, the facts in this dispute do not support a conclusion that the three challenged
"practices" "would likely continue to be applied in successive proceedings."
17 I n US – Continued
Zeroing, where there was "a lack of evidence showing th at zeroing was used in one periodic review
listed in the panel request" or "the sunset review determination was excluded from the Panel's terms
of reference," the Appellate Body found that "the Panel [had] made no finding confirming the use of
the zeroing methodology in successive stages over an extended period of time whereby the duties are
maintained."18 In this dispute, the original investigation, the first, fourth, and fifth administrative
reviews, and the sunset review are not within the Panel's terms of referenc e and hence no substantive
findings that Commerce acted inconsistently with the AD Agreement or the GATT 1994 may be made
with respect to those proceedings.19

42. 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
reviews, and Vietnam has failed to establish as a factual matter that Commerce used the zeroing
methodology in connection with the application of a dumping margin to separate rate respondents in
those proceedings, or to the Vietnam-wide entity.

15 EC – Tube or Pipe Fittings (AB) , para. 81, 84 (Affirming the panel's finding. The panel explained
that "Article 11.1 does not set out an inde pendent or additional obligation for Members." EC – Tube or Pipe
Fittings (Panel), para. 7.113).
16 US – Corrosion-Resistant Steel Sunset Review (AB), para. 150 (emphasis added).
19 See US – Continued Zeroing (AB), para. 194.

43. We also note that Vietnam asks the Panel to expand the Appellate Body's reasoning in US –
Continued Zeroing beyond "zeroing" to encompass the other "challenged practices", but Vietnam's
claims regarding the other "challenged practices" are without merit, as we have shown.

44. Therefore, Vietnam cannot establish "a string of determinations, made sequentially ... over an
extended period of time" with respect to any of the "challenged practices," and so its claims must fail.

45. For all of the reasons we have given, the Un ited States submits that each of Vietnam's claims
is without merit and we thus respectfully request that the Panel reject Vietnam's claims.