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

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

Contents Page
Annex C-1 Executive Summary of the Opening Statement of Viet Nam at
the First Meeting of the Panel
C-2
Annex C-2 Closing Statement of Viet Nam at the First Meeting of the Panel C-8
Annex C-3 Executive Summary of the Opening Statement of the
United States at the First Meeting of the Panel
C-10
Annex C-4 Closing Statement of the United States at the First Meeting of
the Panel
C-20

ANNEX C-1

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

I. OVERVIEW

1. This Panel proceeding is essentially about lega l interpretations of various provisions of the
Anti-Dumping Agreement.

2. First, it involves the question of whether the practice of zeroing as engaged in by the U.S. in
determining the margins of dumping in repeated ad ministrative reviews is consistent with U.S.
obligations under Article VI:1 of the GATT 1994 and Articles 2.1, 2.4.2, and 9.3 of the
Anti-Dumping Agreement. Second, it involves the question of whether a so-called "Vietnam-wide
entity" rate based on adverse facts available is permitted under Articles 2, 6 and 9 of the
Anti-Dumping Agreement. Third, it involves the qu estion of whether an "all others" or "separate"
rate applicable to non-reviewed respondents based on zeroing applied in a prior segment of an
antidumping proceeding is consistent with Articles 2.4 and 9.4 of the Anti-Dumping Agreement. This
question raises two related issues: one, is it reas onable to assume continued margins of dumping by
non-reviewed respondents when the reviewed mandato ry respondents have demonstrated the absence
of dumping since imposition of the anti-dumping order. And two, if zeroing in periodic reviews is
prohibited, then application of a rate based on zeroing for purposes of the "all others" or "separate
rate" must also be prohibited. Fourth, this di spute involves the question of whether the exception
provided in Article 6.10, which permits restricting the scope of an investigation or review to a sample
of exporters/producers or those accounting for the largest volume of exports, allows authorities to
continuously ignore other non-procedural obligati ons of the Anti-Dumping Agreement. Fifth, it
involves the question of whether a five-year sun set review to determine whether dumping is
continuing or likely to recur under Article 11. 3 can be properly based on determinations in
consecutive periodic reviews each of which is inco nsistent with the Anti-Dumping Agreement in the
multiple ways described above.

II. THE PANEL'S ANALYTIC FRAM EWORK MUST BE INFORMED BY
APPELLATE BODY PRECEDENT, TH E ACCEPTED RULES OF TREATY
INTERPRETATION OF THE VIENNA CONVENTION, AND THE OBJECT AND
PURPOSE OF SOVEREIGN ENTITIES IN ENTERING INTO AN
INTERNATIONAL AGREEMENT OR TREATY

3. The WTO Agreements define a set of right s and obligations which the signatories have
agreed to follow. The WTO Agreements define a rules based system of international trade with non-
discrimination as the core principle. The dispute settlement system of the WTO "is a central element
in providing security and predictability to the multilat eral trading system" and "serves to preserve the
rights and obligations of Members."

4. At paragraphs 67-70 of its First Written Submission, the United States suggests that the Panel
in the instant proceeding is not bound by Appellate Body precedent and should conduct a de novo
review of whether zeroing in periodic reviews is prohibited under the Anti-Dumping Agreement. The
logical conclusion of the U.S. position is that identical factual scenario s raised under the same
provision of an agreement can result in different tr eatment. Thus, zeroing can be applied to Viet Nam
if this Panel disagrees with all Appellate Body pr ecedent, but cannot be applied to another country

(or, indeed, in another dispute involving Viet Na m) if the Panel hearing that dispute agrees with
Appellate Body precedent. This undermines both the non-discrimination principle of the WTO and
the object and purpose of the Dispute Settlement Understanding to provide security and predictability.
III. THE "CONTINUED USE OF CHALLENGED PRACTICES" IS A MEASURE
SUBJECT TO DISPUTE SETTLEMENT AND IS WITHIN THIS PANEL'S TERMS
OF REFERENCE

A. N EITHER THE DSU NOR THE ANTI-DUMPING AGREEMENT PRECLUDE A MEMBER FROM
CHALLENGING THE CONTINUED AND ONGOING USE OF A WTO-INCONSISTENT PRACTICE

5. With this measure, Viet Nam requests that the Panel consider the USDOC's use of certain
practices at each segment of the shrimp antidum ping proceeding since imposition of the antidumping
duty order. Viet Nam's first written submission establishes a pattern of conduct by the USDOC that
started with imposition of the antidumping duty order and continues to this moment. The USDOC has
given no indication of its intentions to revise th e conduct in future segments of this proceeding,
necessitating inclusion of this measure.

6. The Appellate Body recently recognized a Panel' s duty to consider measures that evaluate an
authority's continued and ongoing use of certain pr actices in the context of a single antidumping duty
order. Only through inclusion of this measure is the complaining Member able to ensure that the
decision of the Panel will be respected for those determinations already completed and for future
determinations. Failure to perm it this measure would lead to a multiplicity of litigation where an
authority, such as the USDOC, does not revise its pr actices in subsequent de terminations to conform
with a Panel's or the Appellate Body's findings.

B. V IET NAM PROPERLY PROVIDED NOTICE IN THE PANEL REQUEST OF THE "CONTINUED USE
OF CHALLENGED PRACTICES" MEASURE

7. Viet Nam identified the "continued use of ch allenged practices" measure in its Panel request
in a manner consistent with Article 6.2. Viet Na m included in the Panel request each segment of the
proceeding that had at the time of the Panel request been initiated – the investigation, the four periodic
reviews, and the initiation of the five-year sunset review – to illustrate the continuous and ongoing
nature of the challenged practices since imposition of the antidumping duty order. Viet Nam provided
in the list those determinations completed prio r to Viet Nam's accession to the WTO and those
segments not yet final to ensure that the Panel a nd Members understood Viet Nam's concerns with the
continued use.

IV. THE USDOC'S RELIANCE ON MARGINS OF DUMPING CALCULATED USING
THE ZEROING METHODOLOGY IS INCONSISTENT WITH THE
ANTI-DUMPING AGREEMENT

8. We wish to provide for the Panel at the out set a clear description of the zeroing claims being
made in this dispute. First, Viet Nam provide d in its first written subm ission substantial factual
documentation establishing that the USDOC utilized it s zeroing methodology in the investigation and
four completed periodic reviews. Viet Nam also advanced arguments based on the text of the
Anti-Dumping Agreement – arguments that have been repeatedly adopted by the Appellate Body –
establishing that the USDOC's model zeroing and simp le zeroing methodologies are inconsistent with
the Anti-Dumping Agreement.

9. Viet Nam also provided in its first written submission evidence that (1) the USDOC utilized
the model zeroing methodology in the investigation to calculate margins of dumping for individually
examined producers; (2) the USDOC relied on these margins of dumping for the purpose of

calculating the separate rate in the investigation; and (3) the USDOC relied on the separate rate
calculated and applied in the investigation when assigning the separate rate in the second and third
administrative reviews. Based on this series of indisputable facts, the USDOC's use of model zeroing
in the investigation resulted in application of an impermissibly high separate rate in the second and
third administrative reviews.

A. V
IET NAM HAS SHOWN AS A MATTER OF FACT AND AS A MATTER OF LAW THAT THE
USDOC'S CONTINUED AND ONGOING USE OF THE ZEROING METHODOLOGY IS
INCONSISTENT WITH THE GATT 1994 AND THE ANTI-DUMPING AGREEMENT

1. As a Matter of Fact, the USDOC has Utilize d the Zeroing Methodology at All Segments
of the Shrimp Antidumping Proceeding

10. Viet Nam submits that the first written submission provided for the Panel overwhelming
factual evidence on the USDOC's use of margins of dumping calculated using zeroing at each
segment of the shrimp proceeding: the investigation, the four completed periodic reviews, and the
preliminary results of the five-year sunset review.

2. As a Matter of Law, the USDOC's Co ntinued and Ongoing Use of the Zeroing
Methodology is Inconsistent with the United States' WTO Obligations

(a) The Use of Model Zeroing in Original Investig ations is Inconsistent with the United States'
WTO Obligations

11. The crux of the debate is the proper interpreta tion of the concepts of "dumping" and "margins
of dumping." Article VI:1 of the GATT 1994 and Article 2.1 of the Anti-Dumping Agreement define
these concepts in relation to the product under exam ination as a whole. That is, "dumping" or a
"margin of dumping" may only be found to exist fo r the product subject to investigation and not for a
model, which is only a subset of the product under investigation. Although the USDOC may
undertake multiple comparisons using averaging gr oups or models, the results of the multiple
comparisons at the sub-product or in termediate level are not "margins of dumping." It is only on the
basis of aggregating these "intermediate values" that an authority can establish margins of dumping
for the product under investigation as a whole.

(b) The Use of Simple Zeroing in Periodic Review s is Inconsistent with the United States' WTO
Obligations

12. Viet Nam now turns to the legal arguments on the use of zeroing in periodic reviews – the
assessment phase of an antidumping proceeding – which build upon the interpretations discussed
above on the concepts of "dumping" and "margin of dumping." As in the case of model zeroing,
Viet Nam is presenting to the Panel the exact legal reasoning that has been repeatedly adopted by the
Appellate Body in multiple zeroing disputes. Article 9.3 of the Anti-Dumping Agreement governs the
assessment of final antidumping duties in a retrospective system and mirrors the language of
Article VI:2 of the GATT 1994. The article requires that "[t]he amount of the antidumping duty shall
not exceed the margin of dumping as established unde r Article 2." Thus, the margin of dumping
determined for an exporter or producer operates as a ceiling on the amount of antidumping duties that
can be imposed on the entries of the subject merchandise. It is important to tie the term "margin of
dumping" as used in Article 9.3 with the interp retation of this same phrase discussed above. As
explained, Article 2.4.2 requires that the margin of dumping calculation take into consideration all
transactions for the product as a whole, not merely a subset. It is only through aggregating all
intermediate values that the authority can dete rmine the margin of dumping for the product;
systematically excluding transactions that produce negative dumping margins ignores this
requirement. Viet Nam notes that the Appellate Body has recognized that this reasoning applies with

equal force in the context of simple zeroing, wher e comparisons are made at a transaction specific
level (as opposed to a model specific level). Ju st as removing select models from the margin of
dumping calculation produces a result that fails to acc ount for all comparable export transactions, so
too does removing particular transactions. Lastly, we observe that USDOC's assessment of zero or
de minimis rates to the mandatory respondents in the second and third administrative reviews is
irrelevant for purposes of the "continued use of challenged practices" claim.

13. Nevertheless, we believe that the United States ' "no harm no foul" argument is simply wrong.
An exporter/producer that wishes to avoid the payment of antidumping duties must price differently to
obtain a zero margin if zeroing is applied. Th e application of zeroing puts a price constraint on
respondents seeking to avoid or minimize antidumping duties.

B. V
IET NAM HAS SHOWN AS A MATTER OF FACT AND AS A MATTER OF LAW THAT THE
USDOC'S ASSESSMENT OF ALL-OTHERS RATES BASED ON MARGINS OF DUMPING
CALCULATED USING ZEROING IN THE SECOND AND THIRD ADMINISTRATIVE REVIEWS IS
INCONSISTENT WITH THE GATT 1994 AND THE ANTI-DUMPING AGREEMENT

14. As discussed in Viet Nam's first written subm ission, the USDOC's all-others assessment rate
for the second and third administrative reviews ar e in actuality based on the final antidumping duty
margins calculated in the original investigation, namely, the weighted average of the antidumping
duty rates determined for investigated companies. Thus, as a matter of fact, the USDOC relied on
margins of dumping calculated using zeroing to determ ine the all-others rate in the second and third
administrative reviews. As a matter of law, for the reasons explained above, the zeroing methodology
is inconsistent with the Anti-Dumping Agreement.

V. THE ALL-OTHERS RATES APPLIED IN THE SECOND AND
THIRD ADMINISTRATIVE REVIEWS IMPERMISSIBLY RELY ON MARGINS OF
DUMPING CALCULATED FROM A PREVIOUS SEGMENT OF THE
PROCEEDING

15. Separate and apart from the claim described a bove, Viet Nam submits that the all-others rates
used in the second and third administrative review s impermissibly rely on rates calculated from a
previous segment of the proceeding. Article 9.4, which guides authorities on the rate calculation for
companies not individually examined, does not require use of a particular methodology. The
Appellate Body has concluded, however, that th e article does impose an obligation on authorities
when calculating an all-others rate , even where all rates are zero, de minimis , or based on facts
available. This obligation stems from the underl ying purpose of the article, which demands that
parties not individually examined not be prejudiced by the actions of other parties. Thus, when
confronted with the situation that exists here, the USDOC has an obligation to adopt a reasonable
practice that does not subject the non-examined companies to unfair prejudice. Viet Nam submits that
the proper approach under Article 9.4 is relia nce on the margins of dumping calculated in the
contemporaneous proceeding. To rely on stale antidumping rates requires that the USDOC ignore all
available evidence on the subject industry's response to the imposition of the antidumping order.

VI. THE USDOC'S CALCULATION OF A "VIETNAM-WIDE ENTITY" RATE HAS NO
BASIS IN THE ANTI-DUMPING AGREEMENT OR VIET NAM'S PROTOCOL OF
ACCESSION

A. T
HE USDOC HAS NO BASIS FOR APPLYING THE DISCRIMINATORY VIETNAM-WIDE ENTITY
RATE TO CERTAIN VIETNAMESE PRODUCERS AND EXPORTERS

16. The USDOC's has assessed at each stage of this proceeding a highly punitive Vietnam-wide
entity rate for producers or exporters that do not satis fy the USDOC's separate rate criteria. This rate

has no foundation in the Anti-Dumping Agreement or Viet Nam's Protocol of Accession. As an
initial matter, Viet Nam does not dispute the genera l principle that an authority may assign a single
antidumping rate to multiple entities. This issue is not before the Panel.
17. At the time of accession, Viet Nam understood that certain concessions would be necessary to
assuage the concerns of market economy countries that Viet Nam's economy was not sufficiently
market based to allow for application of the anti dumping remedy. Accordingly, Viet Nam agreed to
the specific instances in which an administering au thority could treat Vietnamese entities differently
than entities from other Member countries. These specific instances are detailed in paragraph 527 of
the Working Party Report and in Viet Nam's Protoc ol of Accession. Neither document provides that
an investigating authority may impose a rebuttable presumption that all exporters or producers operate
under the control of the government. There is simply no basis by which the USDOC can impose
additional commitments in the form of discr iminatory and unjustified presumptions towards
Vietnamese producers or exporters not likewise applied to the producers of other Member countries.

B. T
HE USDOC'S APPLICATION OF ADVERSE FACTS AVAILABLE TO THE VIETNAM-WIDE
ENTITY RATE IS INCONSISTENT WITH ARTICLE 6.8 OF THE ANTI-DUMPING AGREEMENT

18. The USDOC has no basis for its reliance on a f acts available rate pursuant to Article 6.8 for
the Vietnam-wide entity in place of a properly calcula ted all-others rate pursuant to Article 9.4.
Accordingly, the Vietnam-wide entity may only prop erly be assigned an all-others rate pursuant to
Article 9.4.

19. We would like to note the important f actual distinction between the second and third
administrative reviews. In the second admini strative review, the USDOC requested certain
information from all exporters a nd producers on the quantity and valu e of U.S. exports of subject
merchandise; the Vietnam-wide entity's failure to provide this information, which the United States
identified as "necessary information," purportedly jus tified use of the punitive adverse facts available
rate pursuant to Article 6.8. In the third admini strative review, however, th is information was never
requested of any parties. Nevertheless, the US DOC continued to apply the punitive adverse facts
available rate pursuant to Article 6.8, concluding that the companies (the Vietnam-wide entity) failed
to establish their independence from government cont rol. There is a disconnect and inconsistency
with the USDOC's explanations on the basis for the application of adverse facts pursuant to
Article 6.8, as the United States went to great le ngths to explain that in the second administrative
review, "Commerce did not punish parties for not meeting the criteria to receive an individual (or
"separate") rate."
1 The results of the third administrative re view directly contradict this claim, and
raise questions about the United States' apparent post hoc rationalization for the application of adverse
facts to the Vietnam-wide entity.

VII. THE USDOC'S LIMITED RESPONDENT SELECTION PRACTICE IS
INCONSISTENT WITH ARTICLE 6.10 OF THE ANTI-DUMPING AGREEMENT

20. Finally, Viet Nam will briefly discuss the claims relating to the USDOC's practice of limiting
the number of interested parties eligible for individual examination. Article 6.10 of the
Anti-Dumping Agreement requires as a general rule th at the administering authority shall determine
the individual dumping margin for each known exporter or producer of the subject merchandise. The
Article does, however, provide a limited exce ption where examining all known exporters or
producers would be impracticable because of the large number of such parties. Viet Nam submits that
the issue before the Panel is whether this ex ception can override and render superfluous other
provisions of the Anti-Dumping Agreement. In creating a rule out of the exception, the USDOC has

denied Vietnamese interested parties their rights under Articles 6.10, 9.3, 11.1 and 11.3 of the
Anti-Dumping Agreement.
21. The continued and ongoing limitations imposed by the USDOC on the number of respondents
results in the nullification of other provisions and principles in the Anti-Dumping Agreement. This
includes the protection of exporters and producers from paying an antidumping duty in excess of their
margin of dumping pursuant to Article 9.3; the ability of exporters and producers to obtain revocation
of an order upon demonstration that they are no longer dumping pursuant to Article 11.1; and the
ability of exporters and producers to benefit from term ination of an order based on a demonstration of
no likelihood of recurrence or continuation of dumping pursuant to Article 11.3.

22. We would also like to comment on the US DOC's refusal in the shrimp antidumping
proceeding to consider the submission of voluntar y responses, contrary to the clear language of
Article 6.10.2. That article requires that "[v]ol untary responses shall not be discouraged." The
USDOC has acted in direct conflict with this cl ear statement, refusing to consider requests for
voluntary respondent treatment and refusing to cons ider complete submissions made by parties
hoping for voluntary treatment from the USDOC.

VIII. CONCLUSION

23. After years of being assessed duties in excess of the margins of dumping and being denied the
opportunity to demonstrate the absence of dumpi ng, the Vietnamese expor ters and producers hope
that this Panel will conclude that the U.S. has and continues to act in a manner inconsistent with its
obligations under the Anti-Dumping Agreement and must bring its actions into consistency with those
obligations.

24. Thank you for your patience and attention. I look forward to answering your questions.

ANNEX C-2

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

1. As we went through this firs t meeting with the Panel, I thou ght that the process worked very
well and I think that we had a good dialogue, with th e third parties adding to that dialogue this
morning. What I want to come back to are just a few of the major points which I think are relevant.

2. First, we have been discussing the exception to the rule contained in Article 6.10. What
I would like to make sure of is that we not miss th e forest for the trees on this issue, because in these
sessions we tend to get so deep into the tress. A couple of observations. First, the limitation on the
number of respondents should not be looked at in isolation from the rest of the Anti-Dumping
Agreement. There is an agreement, the agreem ent is affecting many foreign exporters, and the
exception to the general rule has to be read in the context of the entire agreement, as well as the
context of that rule. Our concern is whether the exception provided in article 6.10 can be
implemented in a way that ignores other obligations in the agreement. We can talk about what are the
constraints on the U.S. or whether they can take voluntary respondents. The relevant question,
however, is who has responsibility at the end of the da y to ensure there is compliance with the overall
object and purpose of the agreement and the spec ific obligations of the Agreement outside of
Article 6.10. The point we are trying to make is not that the U.S. is required to investigate every
exporter or producer, but that if the U.S. chooses no t to, it must determine how to do so while still
fulfilling its other obligations under the agreement. The U.S. can not use this exception to justify
actions which are otherwise inconsistent with the agreement.

3. The other issue to consider with regard to th e exception to the general rule in Article 6.10 is
the concern that if one reads the exception in isol ation and do not put a burden on the authorities to
meet its other obligations under the agreement, authorities could use the exception to essentially
override other obligations, crea ting an enormous loophole for authorities to use to avoid the
obligations of the agreement.

4. On the country-wide rate, the real issue is wh ether there is the authority in the agreement to
apply an adverse facts available rate to companies simply because they are government controlled.

5. Going back to my earlier comment that justice delayed is justice denied, I want to give you a
sense of what happens as a practical matter. The U. S., justifiably under the agreements, only applies
panel reports or AB reports prospectively. When a review is completed, the U.S. immediately
liquidates those entries; once those entries are liquidated, they are gone forever and cannot be
retrieved, regardless of whether a WTO decision against the method of calculation of duties has been
made. You can prevent liquidation only by appeali ng to the United States Court of International
Trade (CIT). If you have an appeal pending, the CIT will enjoin liquidation of those entries pending
resolution of the litigation, a process that generally takes one to three years, assuming an appeal from
the CIT to the Court of Appeals for the Federal Ci rcuit. There is no provision under U.S. law to
enjoin the liquidation of entries pending a WTO a ppeal. So respondents have a one to three year
window, if they are willing to go to U.S. courts a nd have a claim under U.S. law, to enforce a WTO
report which disagrees with the action of the U.S. aut horities. Our concern, which is why we look at
the continued practices measure, is that often the WTO dispute settlement and implementation process
is completed too late for foreign respondent to get their duties back. Thus, respondents have a

wonderful moral victory, but at the end of the da y there is no actual benefit obtained from the WTO
proceeding.

6. Finally, I want to mention Article 11 of the DSU. There must be some security and
predictability in the system. When, as the EU expressed it, there is a practice embedded in a
particular proceeding, producers a nd exporters have to make a decision: am I to assume that the
practice will go on forever, or that somehow it will be changed. The issue is fundamental: how does
a company know, if it wants to avoid payment of dum ping duties, whether or not it is dumping. We
need the provisions of the agreement interpreted so that all parties understand the rules of the game.
This makes it extraordinarily important that when pane ls confront questions of interpretation, that the
panels understand and articulate th e interpretation in a manner which both the respondents and the
authorities can understand and implement. I know that we have a number of complicated issues, such
as the all others rate and the country-wide rate, and ask that the panel deal with each of these issues as
thoroughly and completely as possible.

7. Viet Nam would like to again thank the panel and the Secretariat for its continuing work on
the issues being presented to it.

ANNEX C-3

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

1. The U.S. First Written Submission provides a de tailed response to the arguments raised in
Vietnam's First Written Submission. Today we will highlight several important issues. At the outset,
it is important to have a clear understanding of exactly what Vietnam is asking the Panel to do in this
dispute. Rather than advance an argument based on the plain meaning of the rules agreed among the
Members of the WTO, and accepted by Vietnam when it acceded to the WTO in 2007, Vietnam asks
this Panel to accept interpretations of those rul es that have little connection with how they are
properly understood in light of their ordinary meaning, read in context, and in light of the object and
purpose of the agreements at issue. In numerous in stances in this dispute, Vietnam asks the Panel to
rewrite or ignore provisions of the WTO agreements and disregard key facts. For example:

 Vietnam asks the Panel to ignore the requirements of Article 6.2 of the DSU, and the
Panel's own terms of reference, to overc ome the shortcomings of Vietnam's panel
request, urging the Panel to make findings with respect to a so-called "measure" that
Vietnam did not identify until its First Written Submission;

 Vietnam asks the Panel to find that the Un ited States breached its WTO obligations
by employing the zeroing methodology in review proceedings, despite the absence of
any language in the covered agreements imposing such a general prohibition of
zeroing in reviews. Moreover, Vietnam h as failed to demonstrate how it has been
affected by any application of the "zeroing" methodology when, in fact, all calculated
margins of dumping in the review proceedings subject to this dispute were zero or
de minimis;

 Vietnam asks the Panel to disregard the non-market nature of Vietnam's economy and
impose on WTO Members an obligation to calculate a dumping margin for any
company that requests one, regardless of the company's business affiliations or the
government's influence over the company's export activities, when no such obligation
exists in the AD Agreement;

 Vietnam invites the Panel to create a host of new obligations for WTO Members
faced with large numbers of exporters or producers in antidumping proceedings,
including a requirement to examine all companies without regard for the
government's limited resources; a numerical cap on the frequency with which a WTO
Member may exercise the right to limit the examination; an extremely narrow
definition of what constitutes "necessary in formation"; and additional requirements
for the calculation of a ceiling rate for non- examined companies that simply have no
support whatsoever in the text of the AD Agreement;

 Vietnam argues that measures put into place prior to Vietnam's accession to the WTO
– when, as Vietnam has recognized, th e United States "had no obligation to
Viet Nam" – should retroactively be found inconsistent with the WTO Agreement
because they continue to be applied, d espite the AD Agreement's express exemption
of such measures from its application;

 And Vietnam asks the Panel to find, with respect to the so-called "continued use
measure," that the United States has violated, or is violating, or perhaps in the future
will violate its WTO obligations, but Vietnam has failed to demonstrate, for any
proceeding within the Panel's terms of refe rence, that the Unit ed States has acted
inconsistently with any WTO obligations, and Vietnam certainly cannot establish a
"string" of violations over an "extended period of time."

2. In sum, Vietnam is asking the Panel to impose on the United States obligations found
nowhere in the Agreement on Implementation of Article VI of the General Agreement on Tariffs and
Trade 1994 ("AD Agreement") or the General Agreement on Tariffs and Trade 1994 ("GATT 1994").
If accepted, Vietnam's interpretations would ser iously undermine the ability of investigating
authorities to conduct antidumping examinations, partic ularly when they are faced with incomplete
information, uncooperative interested parties, and large numbers of respondent firms. The
United States thus respectfully urges the Panel to reject Vietnam's claims.

I. REQUESTS FOR PRELIMINARY RULINGS

3. Investigation and First Administrative Review : The United States appreciates the
clarification in Vietnam's written response to the U. S. requests that Vietnam is not alleging that the
original investigation or first administrative revi ew are within the Panel's terms of reference.
However, given the inconsistency between the panel request and Vietnam's First Written Submission
with regard to the measures at issue, it is important to clarify the matter in dispute at the outset of
these proceedings.

4. Vietnam's written response to the U.S. prelimin ary ruling requests suggests that, "to the extent
that these measures [the investigation and first administrative review] served as the basis for measures
applied after Vietnam's accession to the WTO and ar e inconsistent with U.S. obligations under the
Agreement at that time, the consistency of the measur es in the investigation and first review with U.S.
obligations after Vietnam's accession are relevant to the panel's inquiry." Vietnam appears to
formulate this issue incorrectly. As Vietnam co ncedes, the United States "had no obligation to
Viet Nam at the time it applied these measures." Thus, "the consistency of the measures in the
investigation and first review with U.S. obligations" is not relevant to the panel's inquiry, either "after
Viet Nam's accession" or at any other time.

5. Article 18.3 of the AD Agreement strictly limits the application of the AD Agreement "to
investigations, and reviews of exis ting measures, initiated pursuant to applications which have been
made on or after the date of entry into force for a Member of the WTO Agreement." As the panel in
US – DRAMS explained, "pre-WTO measures do not beco me subject to the AD Agreement simply
because they continue to be applied on or after the date of entry into force of the WTO Agreement for
the Member concerned."2

6. The two measures subject to this dispute are the final determinations in the second and third
administrative reviews. The Panel must assess whethe r those determinations – not the determinations
made prior to Vietnam's WTO accession – are consiste nt with U.S. WTO obligations. This is more
than a mere "semantic" disagreement. Thus, the Un ited States respectfully reiterates its request that
the Panel find that the AD Agreement does not apply to the determinations ma de in the investigation
and the first administrative review.

7. In addition, the U.S. First Written Submission explained that the investigation is not within
the Panel's terms of reference because it was not a subject of consultations. The United States notes
that Vietnam did not respond to the U.S. argument in this regard in its wr itten response to the U.S.

2 US – DRAMS, para. 6.14.

preliminary ruling requests. The Panel should therefore find that the investigation is not within its
terms of reference.

8. The "Continued Use of Challenged Practices" : There is an additional inconsistency
between Vietnam's panel request and Vietnam's Firs t Written Submission with regard to the measures
at issue in this dispute. Vietnam's First Writte n Submission identifies as one of the "measures at
issue" in this dispute what it describes as "the c ontinued use of the challenged practices in successive
antidumping proceedings under this order." Howe ver, as explained in the U.S. First Written
Submission, this so-called "measure" was not identif ied in Vietnam's panel re quest, and thus it is not
within the Panel's terms of reference.

9. Vietnam's arguments in its written response to the U.S. preliminary ruling requests are
unavailing. First, Vietnam itself does not point to an y identification of such a "measure" in its panel
request, but rather appears to argue that it was im plicit and the reader should infer such a measure
from the identification of other, specific measures. Article 6.2 of the DSU requires a complaining
party to "identify the specific measures at issue." Identifying certain specific measures does not mean
that an additional, separate measure has also been identified.

10. Vietnam may describe the measures it seeks to challenge in the manner and using the words
that Vietnam chooses. However, the description Viet nam presents in its panel request must "identify
the specific measures at issue and provide a brie f summary of the legal basis of the complaint
sufficient to present the problem clearly."

11. Vietnam's panel request individually id entified each proceeding related to shrimp
antidumping duties that had at the time of the panel request been initiated – the investigation, each of
the four periodic reviews, and the five-year sunset review. Vietnam asserts that this list served "to
illustrate the continuous and on going nature of the challenged practices since imposition of the
antidumping duty order." Contrary to this asserti on, however, the panel request expressly limits the
measures at issue to the specific "determinations" iden tified in the list at the beginning of Section 2.
Throughout the document, Vietnam's panel request limits itself to the application of laws and
procedures in the determinations individually identif ied. There is no indication in the panel request
that Vietnam seeks to challenge a so-called "continued use" measure.

12. Vietnam itself draws distinctions between the "as applied," "as such," and "continued use"
concepts, asserting that a "[continued use] measure is certainly more broad than an 'as applied'
measure, but narrower than a generally applicable 'as such' measure." To the extent that such a
"continued use" measure can even be deemed to exist – and the United States strongly disagrees that it
can – since it "may fall in the cross-section" of pr eviously understood concepts, it is insufficient to
identify a selection of "as applied" measures and e xpect that, through implication, a "continuing
measure" will be understood to also be a subject of the dispute.

13. The only evidence to which Vietnam points in addition to the list of "as applied" measures is
the discussion in the panel request of the legal basis for Vietnam's claim against the "initiation" of the
sunset review. However, this simply serves to highlight the absence of any indication in the panel
request that Vietnam intended to challenge a "continued use" measure.

14. The issue before the Panel is not whether Vietnam used the precise language adopted by the
European Communities in US – Continued Zeroing . The issue is whether Vietnam's panel request
met the requirements of Article 6.2 of the DSU. It did not. Consequently, the United States
respectfully requests that the Panel find that the so- called "continued use" measure is outside its terms
of reference.

15. On the separate question of whether "con tinued use" can constitute a measure, the
United States recognizes that, in US – Continued Zeroing , "the Appellate Body held that the ongoing
conduct constituted a measure with prospective effect." The Unite d States has concerns with the
Appellate Body's reasoning in that dispute, but believes that the reasoning of the panel in Upland
Cotton is sound.3

16. We also explained in the U.S. First Written Submission that the "continued use of challenged
practices" appears to be composed of an indeterm inate number of potential future measures that did
not exist at the time of Vietnam's panel request (and may never exist). Thus, such so-called
"continued use" could not be impa iring any benefits accruing to Vietnam, and therefore cannot be
subject to WTO dispute settlement. Furthermore, to the extent that the "continued use" measure
consists of proceedings that had not resulted in final action to levy definitive antidumping duties or
accept price undertakings at the time of the cons ultations request, Article 17.4 of the AD Agreement
precludes dispute settlement with respect to such a measure. These are additional reasons for the
Panel to find that Vietnam's clai ms concerning the "continued use of challenged practices," including
the fourth administrative review, the fifth administra tive review, and the sunset review, are not within
its terms of reference.

II. VIETNAM'S CLAIMS REGARDING "ZEROING" ARE WITHOUT MERIT

17. The U.S. First Written Submission begins by sta ting that "[t]his is not merely another zeroing
dispute." It is not.

18. Unlike in other disputes, in the second and th ird administrative reviews, which are the only
measures properly before this Panel, zeroing, as a factual matter, had no impact on the margins of
dumping determined for individually examined expor ters or producers, and the zeroing methodology
was not used during the proceedings in order to de termine the separate rates applied to companies not
individually examined.

19. The prohibition of zeroing in administrative reviews, if one exists, is a prohibition against
imposing antidumping duties in excess of the margin of dumping. That is the obligation in
Article VI:2 of the GATT 1994 and Article 9.3 of the AD Agreement. All the calculated dumping
margins in the second and third admi nistrative reviews were zero or de minimis. Thus, as a factual
matter, Vietnam has failed to demonstrate that the United States has acted inconsistently with these
provisions of the WTO Agreement.

20. It appears to the United States that the Panel can resolve this dispute based on these facts, and
it is thus not necessary for the Panel to make any findings on the legal permissibility of zeroing
generally.

21. On the question of the legal permissibility of zeroing, we have no doubt that all here are
aware of the Appellate Body reports that have found zeroing in reviews inconsistent with the
requirements of the covered agreements. The Un ited States has serious concerns about these
Appellate Body reports and believes that they are incorrect.

22. It is a fundamental principle of the customar y rules of interpretation of public international
law that any interpretation must address the text of the agreement and may not impute into the

3 See US – Upland Cotton (Panel) , paras. 7.158-7.160; see also US – Continued Zeroing (Panel) ,
para. 7.61 (finding that "the European Communities failed to identify the specific measure at issue in connection
with its claims regarding the continued application of the 18 anti-dumping duties at issue.") ( reversed on
appeal).

agreement words and obligations that are not there. 4 Relying upon these past Appellate Body reports,
Vietnam asks the Panel to interpret the AD Agreemen t to include a general prohibition of zeroing that
is based upon the concept of "product as a whole." Th at term cannot be found anywhere in the text of
the AD Agreement or the GATT 1994. In contrast to the Appellate Body, all dispute settlement
panels that have addressed this question have agreed with the United States that there is no prohibition
of zeroing in proceedings beyond the original investigation.5

23. The rights and obligations of WTO Members fl ow, not from panel or Appellate Body reports,
but from the text of the covered agreements. Ar ticle 11 of the DSU plainly requires each panel to
make its own objective assessment of the matter befo re it, including an objective assessment of the
facts and the applicability of and conformity with the relevant covered agreements. Further, in
settling disputes among Members, pursuant to Articles 3.2 and 19.2 of the DSU, WTO dispute
settlement panels and the Appellate Body "cannot add to or diminish the rights and obligations
provided in the covered agreements."

24. The United States will not repeat today all of our arguments concerning "zeroing," which we
have explained in detail in the U.S. First Written S ubmission. Should the Panel reach the question of
the legal permissibility of "zeroing," however, we re iterate our respectful request that this Panel make
its own objective assessment of the matter before it and refrain from adopting Vietnam's incorrect
interpretation of the covered agreem ents. We urge this Panel to re main faithful to the text of the
AD Agreement and respectfully request that you find that the approach taken by the United States in
the challenged proceedings rests upon a permissible interpretation in accordance with the customary
rules of interpretation of public international law.

III. VIETNAM'S CLAIMS REGARDING THE "COUNTRY-WIDE" RATE ARE
WITHOUT MERIT

25. Vietnam's claims concerning the assessm ent rates Commerce determined for the
Vietnam-wide entity in the second and third administrative reviews are without merit. This is yet
another instance of Vietnam asking the Panel to create new rules and obligations that have no basis in
the covered agreements.

26. As explained in the U.S. First Written Subm ission, the terms "exporter" and "producer" are
not defined in the AD Agreement, and the ag reement does not establish any criteria for an
investigating authority to examine in order to de termine whether a particular entity constitutes an
"exporter" or "producer." As a threshold ques tion in an antidumping pr oceeding, investigating
authorities must identify the exporters and producers subject to examination. This question must be
addressed in all antidumping proceedings, both those involving market economies and those involving
non-market economies.

27. As the panel in Korea – Certain Paper found, depending on the facts of a given situation, an
investigating authority may determine, consistent wi th Article 6.10 of the AD Agreement, that legally
distinct companies should be treated as a singl e "exporter" or "producer" based upon their activities
and relationships. Thus, affiliated companies, such as a parent company and its subsidiaries, may be
collapsed and treated as a single entity. Likewise, companies subject to government influence, in
particular over their export activities, may be tr eated as a single entity and subject to a single
antidumping rate.

4 India – Patents (AB), para. 45.
5 US – Stainless Steel (Mexico) (Panel) , paras. 7.61, 7.149; US – Zeroing (Japan) (Panel) ,
paras. 7.216, 7.219, 7.222, 7.259; US – Softwood Lumber V (Article 21.5) (Panel), paras. 5.65, 5.66, 5.77; US –
Zeroing (EC) (Panel) , paras. 7.223, 7.284; see also US – Continued Zeroing (Panel) , paras. 7.169 and n.131
(explaining that the panel generally "found the reasoning of the earlier panels on these issues to be persuasive").

28. In this case, the evidence on th e record demonstrated that the nature of Vietnam's economy, in
particular the control exercised by the Governme nt of Vietnam over its economy, including decisions
concerning pricing and exportation, justified Commer ce's determination that Vietnamese companies,
in the absence of evidence demonstrating independe nce from such government control, were part of
an entity that constitutes a single exporter or prod ucer subject to a single assessment rate. This
determination was consistent with the meaning of the terms "exporter" and "producer," as they are
used in Article 6.10 of the AD Agreement. It is also consistent with the recognition by WTO
Members at the time of Vietnam's accession to the WTO that Vietnam is continuing the process of
transition towards a full market economy, and that more reforms are needed for Vietnam's economy to
operate fully on market principles.

29. After Commerce determined that the Vietna m-wide entity was an individual exporter or
producer, Commerce treated that entity just like any other exporter or producer being examined under
Article 9 of the AD Agreement. When the entity fa iled or refused to provide information requested,
Commerce relied upon the facts available, consis tent with Article 6.8 and Annex II of the
AD Agreement. This is neither discriminatory tr eatment nor out of the ordinary, as Vietnam has
suggested.

30. Vietnam asks the Panel to create a new rule barring investigating authorities from taking into
account the relationships between companies and th e influence of the government when identifying
exporters or producers. There is simply no textual basis for such a rule in the AD Agreement. Of
additional concern, such a rule would undermine the effectiveness of antidumping remedies because
related companies and companies influenced by the government could circumvent antidumping
measures by routing exports through companies with the lowest dumping margins to avoid paying
antidumping duties and to avoid posting security to guarantee payment. Imposing such a new rule
would seriously alter the balance of rights and oblig ations established in the AD Agreement, and that
simply is not permitted by the DSU.

31. Vietnam further attempts to limit the ability of investigating authorities to rely on facts
available by asking the Panel to narrowly define the term "necessary information" such that it
encompasses only that information used to calculate dumping margins. Again, there is no support in
the text of the AD Agreement for Vietnam's position. As the panel in Egypt – Steel Rebar correctly
found, "it is left to the discretion of an investigati ng authority, in the first instance, to determine what
information it deems necessary for the conduct of its i nvestigation (for calculations, analysis, etc.) ...."
In this case, the information that Commerce requested was necessary in order to define the pool from
which Commerce selected the largest exporters, and the information also represented the data
necessary for determining a company's export price, once selected for individual examination. Where
companies failed or refused to provide this info rmation, Commerce necessarily relied upon the facts
available to complete its analysis. There is no justification for tying the hands of investigating
authorities and preventing them from doing their work, which is what Vietnam is asking this Panel
to do.

IV. VIETNAM'S CLAIMS REGARDING LIMITING THE NUMBER OF
RESPONDENTS SELECTED ARE WITHOUT MERIT

32. Vietnam advances a number of claims con cerning Commerce's determinations to limit its
examination under Article 6.10 of the AD Agreement. Vietnam's claims amount to a broad-based
attack on the right of WTO Members' investigating authorities to limit their examinations consistent
with the AD Agreement. Once again, Vietnam invites this Panel to create new obligations, restrict the
rights of WTO Members, and alter the balance of rights and obligations established by the
AD Agreement. The Panel should decline Vietnam's invitation.

33. Article 6.10 of the AD Agreement allows Me mbers to determine individual margins of
dumping for a reasonable number of exporters and producers, a nd does not require the determination
of an individual margin of dumping for all exporters and producers, where a large number of
exporters and producers is involved. The only c ondition for limiting an examination is that the
number of exporters or producers must be so large as to make a determina tion of individual margins
of dumping for all exporters or producers "impracticable."

34. Article 6.10 does not define the term "imprac ticable." The ordinary meaning of the term
"impracticable" is "unable to be carried out or do ne; impossible in practice," or "incapable of being
performed or accomplished by the means employed or at command." Vietnam incorrectly argues,
contrary to the panel's findings in EC – Salmon (Norway) , that a determination to limit an
examination must be based solely upon the number of companies involved in the proceeding, without
regard to an investigating authority's resources. Article 6.10 permits an authority to limit its
examination when it is impracticable to individually examine all parties involved in an investigation
because the authority lacks the resources to do so.

35. Here, Commerce explained why it was necessar y to limit the examination, noting the large
number of companies involved, and providing an anal ysis of Commerce's available resources. Based
upon this analysis, Commerce determined that it woul d be impracticable to individually examine all
of the companies involved. There simply is no merit to Vietnam's claim that Commerce improperly
limited its examination.

36. Vietnam also asks this Panel to add to th e AD Agreement a new rule imposing a numerical
limit on the right of WTO Members to limit the examination, and to find that Commerce has
surpassed that numerical limit. Otherwise, in Vi etnam's view, "the exception" would become "the
rule." On its face, Article 6.10 of the AD Agreement contains no such numerical limitation. Any
time the conditions in Article 6.10 are satisfied – that is, whenever the number of exporters,
producers, importers or types of products involved is so large as to make individual dumping margin
determinations for all companies "impracticable" – an authority may limit its examination. That is the
rule to which the WTO Members, including Viet nam, agreed. The Panel should again decline
Vietnam's invitation to establish a different rule.

37. Vietnam also alleges that Commerce acted inconsistently with Article 6.10.2 of the
AD Agreement by not determining individual dumping margins for companies that voluntarily
submitted necessary information. Article 6.10.2 re quires an authority to determine an individual
margin of dumping for such company only where the amount of companies involved is not so large as
to make an individual determination for each co mpany that voluntarily submits information "unduly
burdensome." The investigating authority must determine, based on the number of companies
involved and its own resources and capabilities, whether determining individual margins for voluntary
respondents would be unduly burdensome or, in some instances, simply not possible.

38. Here again, though, as a factual matter, ther e cannot have been any violation. No company
voluntarily provided the necessary information in the second and third administrative reviews. Thus,
Commerce could not have acted inconsistently with Article 6.10.2.

39. Vietnam makes claims under a number of other provisions concerning Commerce's
determinations to limit its examination. These ar e all addressed in detail in the U.S. First Written
Submission. All of these other claims, though, ar e dependent on Vietnam's primary claim that the
United States acted inconsistently with Article 6.10. As we have demonstrated, there is no merit to
that claim.

V. VIETNAM'S CLAIMS REGARDING THE SEPARATE RATE APPLIED TO
COMPANIES NOT INDIVIDUALLY EXAMINED ARE WITHOUT MERIT

40. When an investigating authority limits its examination pursuant to Article 6.10 of the
AD Agreement, as Commerce properly did in the second and third administrative reviews, the
question arises, what assessment rate is to be applied to the non-examined companies? On this
question, Article 9.4 of the AD Agreement provides that the maximum antidumping duty that may be
applied to non-examined companies is the wei ghted average margin of dumping determined for
examined companies, excluding any zero and de minimis margins, and margins based on facts
available.

41. Article 9.4 does not specify what the maximum antidumping duty is that may be applied to
non-examined companies when all th e rates determined for examined companies fall into one of the
three categories that, by rule, must be disregarded in the calculation of the ceiling rate.

42. Faced with this situation in the second and th ird administrative reviews, Commerce relied on
either a weighted average of dumping margins calculated for exporters and producers individually
examined in the most recently completed proceeding, excluding any zero and de minimis margins and
margins based on facts available, or a compan y-specific rate from a more recently completed
proceeding where such a rate had been determined fo r a company. In the absence of any obligation,
the separate rates Commerce applied to non-examin ed exporters and producers in the second and
third administrative reviews cannot be deemed inconsistent with the Agreement.

43. Once again, however, Vietnam asks the Panel to create a new rule and require Commerce to
"recalculate the all-others rate using a weighted-average of the individually reviewed
exporters/producers for the contemporaneous phase of the proceeding." Nothing in the text of
Article 9.4 supports any such requirement. In addition, Vietnam argues that the investigating
authority should be required to exclude dumping ma rgins based on facts available from the weighted
average, but include zero or de minimis margins. The self-serving nature of Vietnam's proposal is
obvious, and Vietnam's position simply is not credible.

44. Also not credible is Vietnam's assertion that, because the separate rates applied to non-
examined companies had "no basis in the relevant period of review," Commerce's approach "unfairly
prejudiced" the companies that were not individually examined. However, it is in the nature of an
antidumping duty determined pursuant to Article 9.4 for companies that were not individually
examined that the rate applied will not be b ased on the actual commercial behaviour of the non-
examined companies. Certainly, where contempor aneous dumping margins are determined and those
margins are not zero, de minimis, or based on facts available, such margins must be used to calculate a
ceiling per the terms of Article 9.4. In the absen ce of such margins, Article 9.4 does not impose a
ceiling.

45. Vietnam also argues that the separate rates Commerce applied to companies that were not
individually examined were inconsistent with the covered agreements because the rates were
calculated using the zeroing methodology. As a factual matter, the zeroing methodology was not
employed during the second and third administrativ e reviews when Commerc e applied the separate
rates to companies that were not individually examined.

46. The calculations that Commerce performed in th e investigation to determine the separate rates
were not subject to any re-examination in the second and third administrative reviews. Commerce
made no new comparisons between the export price a nd the normal value. Commerce simply applied
a previously calculated rate to respondents that demonstrated sufficient independence from the
government during the second and third administrative reviews.

47. Vietnam's argument is dependent upon its clai m that Commerce acted inconsistently with the
AD Agreement when it calculated margins of du mping based on the zeroing methodology in the
original investigation. As explained, that de termination was not subject to the AD Agreement and
cannot have been inconsistent with the AD Agreement.

48. Here again, Vietnam asks the Panel to ignor e the text of the AD Agreement, specifically the
limitation of the application of the AD Agreem ent in Article 18.3. Because Commerce simply
continued to apply rates determined prior to the en try into force of the WT O Agreement for Vietnam,
and did not utilize the zeroing methodology during second and third administrative reviews in the
application of those rates, the Panel should rej ect Vietnam's zeroing-related claims against the
separate rates Commerce applied in the second and third administrative reviews.

VI. VIETNAM'S CLAIM WITH RESPECT TO THE CONTINUED USE OF
CHALLENGED PRACTICES IS WITHOUT MERIT

49. Finally, Vietnam argues that Commerce "has utiliz ed the challenged practices in an original
investigation, four consecutive administrative review s, and in the preliminary results of the ongoing
sunset review," and this "continued use" is incons istent with various provisions of the AD Agreement
and the GATT 1994.

50. Vietnam did not identify the "continued use of the challenged practices" as a measure in its
panel request, and thus no such measure is within the Panel's terms of reference. The United States
also has serious concerns about the Appellate Body's finding in US – Continued Zeroing that
"continued use" can constitute a measure subject to WTO dispute settlement. In any event, however,
Vietnam's argument is premised on its assertion that such "continued use" constitutes an "ongoing
conduct." Even were this a cognizable claim, once again the facts belie a conclusion that Vietnam has
demonstrated the existence of such "ongoing conduct" in this dispute.

51. In US – Continued Zeroing , the Appellate Body found that the record supported findings of
inconsistency in only four of the eighteen cases challe nged. As a factual matter, in the fourteen other
cases, the record did not reflect that "the zeroi ng methodology was repeatedly used in a string of
determinations made sequentially in periodic reviews and sunset re views over an extended period of
time." In each of the four cases where the Appellate Body concluded that there was "a sufficient basis
... to conclude that the zeroing methodology woul d likely continue to be applied in successive
proceedings," the panel had found the following: (1) the use of the zeroing methodology in the initial
less than fair value investigation; (2) the u se of the zeroing methodology in four successive
administrative reviews; and (3) reliance in a sun set review upon rates dete rmined using the zeroing
methodology.

52. In this dispute, Vietnam cannot demonstrat e a string of determinations over an extended
period of time. The original investigation, the firs t, fourth, and fifth administrative reviews, and the
sunset review are not properly before the Panel a nd there can be no finding of inconsistency in
connection with those proceedings.

53. Additionally, Vietnam has failed to establish that "zeroing" had any impact on the margins of
dumping calculated in the second and third admini strative 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. Hence, with respect to Comme rce's use of zeroing, Vietnam cannot establish "a
string of determinations, made sequentially ... over an extended period of time."

54. Vietnam also seeks to expand the Appellate Body's reasoning in US – Continued Zeroing
beyond zeroing to encompass the other "challenged prac tices." Vietnam's claims regarding the other

"challenged practices" are w ithout merit, and Vietnam cannot esta blish "a string of determinations,
made sequentially... over an extended period of time."

VII. CONCLUSION

55. As we demonstrated in the U.S. First Wr itten Submission and again this morning, Vietnam
has pursued claims that are not within the Panel's terms of reference, advanced arguments that lack
factual support, and invited the Panel to invent ne w obligations that have no basis in the covered
agreements. Consequently, for the reasons we have given, the United States respectfully requests that
the Panel grant the U.S. preliminary ruling requests and reject Vietnam's claims that the United States
has acted inconsistently with the covered agreements.

ANNEX C-4

CLOSING STATEMENT OF THE UNITED STATES
AT THE FIRST MEETING OF THE PANEL

1. The United States has only a few brief closing comments. This dispute, like all WTO
disputes, is about the meaning of the covered agreem ents and the content of the obligations that WTO
Members have accepted by joining the WTO. Vietnam seeks to alter the meaning of the covered
agreements by departing from the accepted rules of treaty interpretation and by inventing obligations
found nowhere in the text of any covered agreement. At the same time, Vi etnam seeks to avoid its
own obligations to identify the specific measures at issue in the panel request, to present factual
evidence that supports its claims, and to have its exports subjected to the rules-based disciplines of the
AD Agreement.

2. The Panel is charged with making an obj ective assessment of the matter before it and
clarifying the existing provisions of the covered ag reements in accordance with customary rules of
interpretation of public international law. Correct application of the customary rules of interpretation
ensures the security and predictability of the multilateral trading system.

3. At the beginning and at the end of this Panel's analysis is the text of the covered agreements.
In its closing statement, Vietnam lamented that our discussion over the past two days got "bogged
down by the text." Vietnam suggested that we "should not miss the forest for the trees." The "trees"
here, though, is the text of the covered agreements . It is imperative that the Panel not miss these
"trees."

4. The question before the Panel is: Does th e text require what Vietnam contends the
United States is obligated to do? For each claim Vietnam has made, the answer is no. Vietnam has
failed to establish that the United States has acted in consistently with any provision of any covered
agreement. There simply is no support, either in fact or in the text of the covered agreements, for
Vietnam's claims.

5. We would like to offer the Panel just two exam ples from this first m eeting, which we believe
shed light on what Vietnam is attempting to do in this dispute. First, Vietnam's discussion yesterday
afternoon of the meaning of Article 9.4 of the AD Agre ement is a clear example of its attempts to add
to the AD Agreement new rules that are unsupported by the text and were never agreed by Members.
Vietnam appears to agree with the United States th at when all the margins of dumping determined for
examined exporters or producers are zero, de minimis , or based on facts available, pursuant to the
express terms of Article 9.4 it is not possible to calculate a maximum for the amount of duty that may
be applied to non-examined entities. In such a case, however, Vietnam posits that Article 9.4 imposes
the following specific obligations on Members:

 the antidumping duty applied must be based solely on calculated rates and may not be
based upon or utilize the facts available;

 the antidumping duty applied must be a calculated rate based on contemporaneous
data (though, Vietnam appeared later to have conceded that this was not required in
all cases);

 if not contemporaneous, the rate applied must be recalculated and subject to scrutiny,
even if at the time the prior rate was calculated, by rule it could not have been
inconsistent with any obligation under the WTO agreements;

 the antidumping duty applied may only be applied to "individual," non-examined
firms, and not groups of firms identified as a single exporter or producer; and

 the antidumping duty applied is subject to a reasonableness test, or an abuse of
discretion test, or an "unbridled discreti on" test, or possibly all of these tests
simultaneously.

 During the afternoon session yesterday, Vietnam, at one time or another, asserted that
Article 9.4 of the AD Agreement requires all of these things. Not once, however, did Vietnam
identify any text in Article 9.4 that establishes any of these requirements. The explanation for this is
simple: there is no text in Article 9.4 that estab lishes any of these requirements. Indeed, Article 9.4
does not address the issue of how to calculate the rate to be applied. Article 9.4 simply provides for a
ceiling on that rate.

6. Throughout Vietnam's First Written Submission, its opening statement at this hearing, and its
responses to questions, Vietnam has presented arguments that simply are divorced from the text of the
covered agreements. A second, striking example: at paragraph 74 of Vietnam's opening statement,
Vietnam asserted, with respect to Article 6.10.2 of the AD Agreement, that "the 'undue burden'
standard discussed by the United States has no b asis in the Anti-Dumping Agreement." The best
response we can offer to this is the text of Article 6.10.2 itself:

In cases where the authorities have limited th eir examination, as provided for in this
paragraph, they shall nevertheless determine an individual margin of dumping for any
exporter or producer not initially selected who submits the necessary information in
time for that information to be consider ed during the course of the investigation,
except where the number of exporters or producers is so large that individual
examinations would be unduly burdensome to the authorities and prevent the timely
completion of the investigation. Vol untary responses shall not be discouraged.
(emphasis added)
 The words "unduly burdensome" are right there in the text.

7. Throughout its claims and arguments, Viet nam is asking the Panel to read into the
AD Agreement words that are not there, and read out of the AD Agreement words that are there. This
is wholly inconsistent with the rules of treaty in terpretation. The text of the covered agreements,
which Vietnam seeks to alter or avoid, is determinativ e of the issues in this dispute. If that text is
properly interpreted, Vietnam's arguments must be rejected.

8. The United States recognizes that the Panel is only at the beginning of its work. We hope that
the U.S. First Written Submission and our presentation over these past two days have been helpful for
you. We look forward to receiving the Panel's wr itten questions. Once again, the United States
thanks the Panel members for their time and careful attention to this matter.