UNITED STATES – ANTI-DUMPING MEASURES ON FISH FILLETS FROM VIET NAM REQUEST FOR THE ESTABLISHMENT OF A PANEL BY VIET NAM
Document: REQUEST FOR THE ESTABLISHMENT OF A PANEL
Date: 12 June 2018
Document codes: WT/DS536/2
Complainant: Vietnam
Respondent: U.S.
Third parties: Canada, China, EU, Egypt, India, Japan, Malaysia, Russia, Singapore, Thailand
Dispute stage: Panel
Agreements cited: Art. 2, 2.1, 2.4, 2.4.2, 9, 9.1, 9.3, 9.4, 1  Anti-dumpingArt. VI:1, VI:2  GATT 1994Art. 11, 11.1, 11.2, 11.3, 11.4  Anti-dumpingPart I, para. 2  Protocol of AccessionArt. 18.4  Anti-dumpingArt. XVI:4  Agreement Establishing the World Trade OrganizationArt. VI  GATT 1994Art. 6.8, Annex II, 6.10, 9.2, 18.1, 18.3, 18.4  Anti-dumping

UNITED STATES – ANTI-DUMPING MEASURES ON FISH FILLETS FROM VIET NAM
REQUEST FOR THE ESTABLISHMENT OF A PANEL BY VIET NAM
The following communication, dated 8 June 2018 , from the delegation of Viet Nam to the
Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.

Upon instruction from my authorities, I wish to convey the request of the Government of Viet Nam
("Viet Nam ") to the Dispute Settlement Body (the "DSB") for the establishment of a panel
pursuant to Article XXIII:1 of the General Agreement on Tariffs and Trade 1994 (the
"GATT 1994"), Articles 4 and 6 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes (the "DSU"), and Article 17.4 of the Agreement on Implementation of
Article VI of the General Agreement on Tariffs and Trade 1994 (the "Anti-Dumping Agreement")
with respect to anti-dumping measures imposed by the United States on imports of fish fillets from
Viet Nam (DS536).
At the outset, Viet Nam observes that this is the third dispute settlement proceeding brought by
Viet Nam involving anti -dumping measures imposed by the United States. Many of the issues
raised in the present request for the establishment o f a panel were addressed by the panels in
US – Anti-dumping Measures on Certain Shrimp from Viet Nam (DS404 and DS429). The DSB
adopted the DS404 panel report on 2 September 2011; despite the United States ' statement that
it would implement the DSB 's recommendations and rulings in a reasonable period of time set to
expire on 2 July 2012, the recommendations and rulings have yet to be implemented as of the
date of this request. The DSB adopted the panel and Appellate Body reports on 22 April 2015. The
United States and Viet Nam reached a mutually agreed solution in DS429 notified the DSB of this
on 18 July 2016. Notwithstanding the mutually agreed solution in DS429, a number of WTO
inconsistencies with U.S anti -dumping practices and laws raised in either DS40 4 and/or DS429
remain. Although the factual issues differ between the shrimp cases and fish fillets, virtually every
legal issue has already been decided in Viet Nam's favor.
1. CONSULTATIONS
Pursuant to Article 4 of the Understanding on the Rules and Procedures Governing the Settlements
of Disputes (DSU) and Article XXII:1 of the General Agreement on Tariffs and Trade 1994
(GATT 1994), Viet Nam requested consultations with the United States (US) regarding certain anti-
dumping measures imposed by the United States on imports of fish fillets from Viet Nam. Viet Nam
requested consultations with the United States on 8 January 2018; the request was circulated on
12 January 2018 as document G/ADP/D122/1#G/L/1208#WT/DS536/1.
Viet Nam and the U nited States held consultations on March 1, 20 18 in Geneva. Those
consultations were held with the hope of reaching a mutually satisfactory solution. Viet Nam made
it clear during the consultations that it would prefer to reach a mutually satisfactory solution in the
context of consultations than through the Panel process and provided elements of what a such
solution might involve. Notwithstanding three subsequent written communications from Viet Nam
to the US, the US has chosen not to respond to Viet Nam's initiatives. No further consultations
have been held and no resolution of the matter has been reached. Therefore, Viet Nam hereby
requests that a panel be established pursuant to Article 6 of the DS U and Article XXIII of the
GATT 1994.

2. SUMMARY OF FACTS AND LEGAL BASIS OF COMPLAINT
This request is, in particular but not exclusively, made with respect to:
(1) The imposition of anti -dumping duties and cash deposit requirements pursuant to the
final results of the United States Department of Commerce's (hereafter, "USDOC") fifth
administrative review for the period from August 1, 2007 to July 31, 2008 in Certain Frozen
Fish Fillets From the Socialist Republic of Viet Nam: Final Results of the Antidumping Duty
Administrative Review and New Shipper Review, 75 Fed. Reg. 12726 (March 17, 2010);
(2) The imposition of anti -dumping duties and cash deposit requirements pursuant to the
final results of the USDOC's sixth administrative review for the period from August 1, 2008
to July 31, 2009, in Certain Frozen F ish Fillets from the Socialist Republic of Viet Nam: Final
Results of the Sixth Administrative Review and Sixth New Shipper Review, 76 Fed.
Reg. 15941 (March 22, 2011);
(3) The imposition of anti -dumping duties and cash deposit requirements pursuant to the
final results of the USDOC's seventh administrative review for the period from August 1,
2009 to July 31, 2010, in Certain Frozen Fish Fillets from the Socialist Republic of Viet Nam:
Final and Partial rescission of the Seventh Antidumping Administrative Review, 77 Fed. Reg.
15039 (March 14, 2012);
(4) The seventh administrative review of Certain Frozen Fish Fillets from the Socialist
Republic of Viet Nam as referenced above insofar as it did not revoke the anti -dumping duty
order with respect to certain respondents eligible for and requesting such revocation;
(5) Any other ongoing or future anti -dumping administrative reviews, and the preliminary
and final results thereof, related to the imports of Certain Frozen Fish Fillets from the
Socialist Republic o f Viet Nam (DOC Case A -552-801), as well as any assessment
instructions, cash deposit requirements, and revocation determinations issued pursuant to
such reviews;
(6) Section 129 of the Uruguay Round Agreements Act ("URAA"), 19 U.S.C. §3538, as
elaborated upon in the Statement of Administrative Action accompanying the URAA and as
implemented by the relevant United States authorities;
(7) Any other legal authority claimed by the United States authorities to allow compliance
with the treatment required by th e WTO with respect to unliquidated entries which entered
the U.S. prior to the implementation of any Section 129 proceeding.
The specific U.S. laws, practices, other guidance at issue are as follows:
(1) the Tariff Act of 1930, as amended, in particular Sections 731, 751, 752, 771(7),
771(35)(A), 771(35)(B), and 777A(d);
(2) Section 129 of the URAA, codified as 19 U.S.C. §3538;
(3) the United States Statement of Administrative Action that accompanied the Uruguay
Round Agreements Act, H.R. Doc. No.1 03-316, vol. I;
(4) the implementing regulations of the United States Department of Commerce
("USDOC"), 19 C.F.R. Section 351, in particular 19 C.F.R. § 351.218 and 19 C.F.R. §
351.414;
(5) the Import Administration Antidumping Manual (2009 edition), including t he computer
programs to which it refers;
(6) the methodology of the United States for determining margins of dumping in
administrative reviews;

(7) the practice of requiring submission of a separate rate application or certification in
original investigati ons and periodic reviews involving Vietnamese producers in order to
qualify for the all others or separate rate rather than the country-wide rate;
(8) the application of a so -called Viet Nam-wide entity rate based on adverse facts
available to respondents not individually investigated who fail to provide a separate rate
application or certification to demonstrate the absence of government control;
(9) the practice of implementing adverse Dispute Settlement Body rulings, pursuant to
Section 129 of the URAA, or other legal authority, such that unliquidated entries entered or
withdrawn from the warehouse for consumption prior to the date of implementation of a
Section 129 determination remain subject to assessment of duties pursuant to the original
anti-dumping duty determination or a rate higher than a WTO consistent rate.
2.1. Zeroing

2.1.1. Summary of Facts
In each of the administrative reviews at issue, the USDOC has made use of the zeroing
methodology that has been repeatedly and consistently held by the Appellate Body to be in
violation of US international obligations. Specifically, in making an average -to-average comparison
of export price and normal value, the USDOC did not allow the margin above normal value on non-
dumped sales to offset the margin of dumping on sales below with margins below normal value.
The USDOC has acknowledged in each review use of its zeroing methodology in the administrative
determinations. Therefore, the dumping margin determined by the USDOC is in excess of the
actual dumping engaged in by the respondents.
These calculations and methodologies are applied pursuant, in particular, to the following United
States laws and regulations:
(1) Tariff Act of 1930, as amended, Section 771(35)(A);

(2) Implementing regulations of the USDOC, 19 C.F.R. § 351.408 and 351.414.
The USDOC issued a "final modification " of its practice of zeroing in administrative reviews on
February 14, 2012 (77 FR 8101), but this modification specifically excluded application of the new
practice to any of the completed annual reviews , including re views completed after that date.
Thus, the margins of dumping calculated in the fifth, sixth and seventh administrative reviews of
Fish Fillets from the Socialist Republic of Viet Nam were WTO inconsistent margins of dumping.
This had the effect of the collection of duties based on WTO inconsi stent margins of dumping,
collection of cash deposits of estimated antidumping duties based on WTO inconsistent margins of
dumping, and, in the case of Vinh Hoan, the finding of margins of dumping when no such margins
in fact existed. With respect to Vinh Hoan, this WTO inconsistent methodology prevented it from
demonstrating the absence of dumping necessary to obtain a revocation of the antidumping duties
as to Vinh Hoan.
2.1.2. Legal Basis of Complaint
Viet Nam considers the above -mentioned laws and pro cedures by the USDOC to be, as such and
as applied on a continued and ongoing basis, inconsistent with several provisions of the
Anti-Dumping Agreement, GATT 1994, and the Marrakesh Agreement. In original investigations,
periodic reviews, new shipper revie ws, sunset reviews, and certain changed circumstances
reviews, USDOC's use of zeroing is inconsistent with:
(1) Article 2 of the Anti -Dumping Agreement, including paragraphs 2.1, 2.4, and 2.4.2,
because the comparison made by the USDOC is inconsistent with the requirements of
Article 2 and those paragraphs of Article 2;
(2) Article 9 of the Anti-Dumping Agreement, including paragraphs 9.1 and 9.3, because the
USDOC's use of the zeroing methodology results in the imposition of duties in excess of the
amount of dumping as determined pursuant to Article 2;

(3) Paragraph 9.4 of Article 9 of the Anti -Dumping Agreement because the USDOC 's use of
the zeroing methodology results in the imposition of duties for the all -other rate in excess of
the amount of dumping as determined pursuant to Article 2;
(4) Article 1 of the Anti-Dumping Agreement and Articles VI:1 and VI:2 of the GATT 1994 to
the extent that the imposition and collection of the dutie s is inconsistent with the
Anti-Dumping Agreement;
(5) For sunset reviews only, Article 11 of the Anti -Dumping Agreement, including
paragraphs 11.1, 11.2, 11.3 and 11.4 of the Anti -Dumping Agreement w here likelihood of
continued dumping determinations are made using the zeroing methodology inconsistent
with Articles 2.4 and 2.4.2 of the Anti-Dumping Agreement; and
(6) Part I:2 of the Protocol of Accession of the Socialist Republic of Viet Nam, WT/L/662,
15 November 2006 and Paragraphs 254 and 255 of the Report of the Working Party on
Accession of Viet Nam, WT/ACC/VNM/48 , 26 October, 2006.
Viet Nam also considers that USDOC 's application of the above -mentioned laws and procedures in
the periodic reviews here at issue to be inconsistent with the f ollowing provisions of the
Anti-Dumping Agreement, GATT 1994, and the Marrakesh Agreement for the same reasons set out
above:
(1) Articles 1, 2.1, 2.4, 2.4.2, 9.1, 9.3, 11.1, and 11.3 of the Anti-Dumping Agreement;
(2) Article 18.4 of the Anti -Dumping Agreement and Article X VI:4 of the Marrakesh
Agreement;
(3) Articles VI:1 and VI:2 of the GATT 1994.
There are numerous WTO Appellate Body and Panel decisions finding the original U.S. practice of
zeroing to be WTO i nconsistent and its more recent application of zeroing in the context of
targeted dumping and differential pricing to be similarly WTO inconsistent. Indeed, both the Panel
and the Appellate Body found the practice of zeroing to be "as such" WTO inconsistent in United
States-Anti-Dumping Measures on Certain Shrimp from Viet Nam (DS429) . There is no longer any
question that zeroing in anti-dumping calculations is inconsistent with U.S. WTO obligations.
2.2. Timeliness of Vinh Hoan's Request for Revocation

2.2.1. Summary of Facts
Based on having received de minimis margins in the fifth and sixth administrative reviews, in the
seventh review Vinh Hoan requested a revocation of the antidumping duties as to Vinh Hoan based
on the expectation that after the seventh administrative review it would have demonstrated the
absence of continued dumping in three consecutive reviews with de minimis margins of dumping.
The US rejected Vinh Hoan 's request based on it being untimely under Department of Commerce
regulation 19 CFR 351.222(e) which states that such a request should be made during the
anniversary month of the anti-dumping order. At the time of the anniversary month of the seventh
review, the US had not issued even a preliminary determination with respect to the sixth
administrative review. The anniversary month for the seventh review was August 2010 while the
preliminary determination in the sixth review was not issued until 9 September 2011. The final
determination in the seventh review was not made until 330 days after Vinh Hoan made its
request for revocation.
2.2.2. Legal Basis of Complaint
Articles 11.1 and 11.2 of the Agreement on the Implementation of Article VI of the GATT 1994
permit the imposition of anti -dumping duties only "as long as and to the extent necessary to
counteract dumping. " A review of the need for the continued imposition of the duty may be
initiated "upon request from any interested party. " The only timing require ment is that "a
reasonable period of time has elapsed since the imposition of the definitive anti -dumping duty."
Under Article 11.2, a party may request a review at any time if it "submits positive information

substantiating the need for a review. " Articles 11.1 and 11.2 do not link periodic reviews with
reviews seeking revocation of anti -dumping duties by a party. While there is no prohibition on
making a determination of whether or not it continues to be necessary to impose anti -dumping
duties on a party in the context of a periodic review, there is no basis in the Agreement for
rejecting as untimely a request to review whether it continues to be necessary to impose anti -
dumping duties made during a periodic review. An authority may consider the request an d make a
determination in the context of a periodic review or it may conduct a separate review. Article 11.2
provides no basis for rejection of a request to review whether it continues to be necessary to
impose anti-dumping duties based on such a request being untimely.
Article 11.4 specifies that "the provisions of Article 6 regarding evidence and procedure shall apply
to any review carried out under this Article." Paragraphs 81-89 of the Report of the Appellate Body
in United States – Anti-Dumping Measur es on Certain Hot -Rolled Steel Products from Japan
provides an elaborate analysis of what constitutes a timely submissi on of information under
Article 6 and Annex II of Agreement on the Implementation of Article VI of the GATT 1 994.
A request for revocatio n made 330 days before the final determination in a periodic review is
simply not an untimely request. It provided the US more than a reasonable period of time to
examine and rule on the request.
The US action was taken pursuant to Commerce Department regulations 351.222 and 351.213 and
Samsung Electronics v. United States, 946 F. Supp5 (CIT 1996).
2.3. Viet Nam-Wide Entity Rate Based on Adverse Facts Available

2.3.1. Summary of Facts
The USDOC has applied a Viet Nam-wide entity rate based on adverse fact s available throughout
the anti -dumping proceedings identified above. For countries identified as non -market economy
countries, the USDOC requires that respondent companies apply for separate rates; those that fail
to do so or do not meet the separate rate criteria are given the "Viet Nam-wide entity rate " as
established by USDOC. Even a company that timely and fully responds to the questions posed by
USDOC will be assigned this Viet Nam-wide entity rate if it does not meet the criteria for a
separate rate established by the USDOC.
Companies that do not receive a separate rate are assigned the Viet Nam-wide entity rate. In the
proceedings at issue, the USDOC assigned a Viet Nam-wide entity rate based entirely on adverse
facts available, even where companies responded timely and fully to the questionnaires issued by
USDOC. The effect of this action is to assign highly prejudicial and unjustifiable rates to companies
that do everything in their control to comply with USDOC requests.
These calculations and methodologies are applied pursuant, in particular, to the following United
States laws and measures:
(1) Tariff Act of 1930, as amended, Sections 771(18)(C)(i), 776(a)(2), and 776(b);
(2) Import Administration Antidumping Manual, Chapter 10, "Non-Market Economies."
2.3.2. Legal Basis of Complaint
In the anti-dumping proceedings at i ssue, the United States applied the laws and methodologies
described above with regard to calculation of a Viet Nam -wide entity rate, which Viet Nam
considers to be inconsistent, as such and as applied , on a continued and ongoing basis, with the
obligations of the United States under the Anti -Dumping Agreement. Specifically, Viet Nam
considers these measures to be inconsistent with the following p rovisions of the Anti -Dumping
Agreement.
(1) Articles 2 and 9 of the Anti -Dumping Agreement because these Articles determine the
basis for calculation of anti -dumping margins and the collection of anti -dumping duties and
do not refer to the circumstances c ontemplated by the application of a Viet Nam-wide entity
rate based on adverse facts available;

(2) Article 6.8 and Annex II of the Anti -Dumping Agreement because USDOC relied on
adverse facts available for the calculation of the Viet Nam-wide entity rate for entities not
granted a "separate rate." In so doing, the USDOC failed to adhere to the provisions of the
Agreement governing the use of adverse facts available, as the presence of "state control" is
not a relevant criteria for determining margins of dumping or the application of adverse facts
available;
(3) Article 6.10 because the USDOC, in applying the Viet Nam-wide entity rate to multiple
entities, failed in its obligation to determine individual margins of dumping. The only
exception to this require ment is where the USDOC relies on sampling, per the second
sentence of Article 6.10;
(4) Article 9, including paragraph 9.4, of the Anti -Dumping Agreement because the USDOC
has created a category of producers not contemplated in the Agreement. The Agreemen t
permits an authority to calculate a rate for individually investigated producers, a rate based
on facts available for individually investigated producers that do not cooperate, and a
separate, "all others " rate calculated based on the weighted average ma rgin of the
individually investigated producers. The "country-wide" rate applied by USDOC does not
adhere to these limitations;
(5) Articles 6.10 and 9.2 which, in tandem, require calculation of individual dumping
margins except where the USDOC relies on its sampling methodology or to do so would be
impracticable. These provisions demonstrate that the USDOC has no basis for its
presumption that multiple entities constitute a single, Viet Nam-wide entity;
(6) Part I.2 of the Protocol of Accession of the Socialist Republic of Viet Nam, WT/L/662 , 15
November 2006 and Paragraphs 527, 254 and 255 of the Report of the Working Party on
Accession of Viet Nam, WT/ACC/VNM/48 , 27 October 2006 because the terms of Viet Nam's
accession to the WTO do not per mit the application of such a Viet Nam -wide entity rate
unless otherwise provided for under the Anti-Dumping Agreement;
Viet Nam also considers that USDOC 's application of the above -mentioned laws and
procedures in the periodic reviews here at issue to be inconsistent with the following
provisions of the Anti -Dumping Agreement, GATT 1994 , and the Marrakesh Agreement for
the same reasons set out above:
(7) Article 18, including paragraphs 18.1, 18.3 and 18.4, of the Anti -Dumping Agreement
and Article XVI:4 of the Marrakesh Agreement;
(8) Articles VI:1 and VI:2 of the GATT 1994.
The USDOC separate rate practice has been found to be WTO inconsistent "as such" (DS429) and
"as applied" (DS404).
2.4. Section 129 of the Uruguay Round Agreements Act ( "URAA") and Other Statutory
Authority to Implement Adverse Findings Against the US in a Manner Consistent With US
WTO Obligations
2.4.1. Summary of Facts
Section 129 of the URAA is the mechanism by which the United States implements adverse
findings by the DSB. The law a ssigns responsibility to the United States Trade Representative, the
USDOC and the ITC for implementing adverse decisions in a manner consistent with US
international obligations. However, neither section 129 nor any other provision of U.S. law permits
US implementation consistent with its WTO obligations.
The law contains unambiguous language on the effect of a Section 129 determination. The statute
requires that "Determinations….shall apply with respect to unliquidated entries of the subject
merchandise that are entered or withdrawn from warehouse, for consumption on or after…the date
on which the Trade Representative directs the administering authority…to implement that
determination." This understanding is confirmed by the Statement of Administrative Ac tion

("SAA"), which has been properly recognized as a definitive statement on operation of the URAA.
Indeed, the URAA itself states that "[t]he statement of administrative action approved by the
Congress under section 101(a) shall be regarded as an authori tative expression by the United
States concerning the interpretation and application of the {URAA} and this Act in any judicial
proceeding in which a question arises concerning such interpretation or application. " The SAA is
the most probative authority av ailable for purposes of interpreting the language of the URAA. The
statute, on its own, is quite clear on the limited effect of Section 129 determinations for entries
made pursuant to a measure at issue. The SAA reinforces this limitation. The statute does not
provide the Trade Representative, the USDOC or the CBP officials responsible for assessment, with
the discretion to adjust all of the final duty liability on unliquidated entries pursuant to the results
of a section 129 proceeding.
In the course of DS429, the US claimed it had other legal authority to adjust the final duty liability
on unliquidated entries. However, in the settlement of the issue of duty refunds after the decision
in DS429 the US was unable to find legal authority to allow it to fully refund the unliquidated
entries as re quired by its WTO obligations. Rather, the "settlement" required a portion of the
amount due to be refunded to be paid to both the US and to petitioners. US claims to the contrary,
the US does not have authority to ful ly refund unliquidate d entries as required by it
WTO obligations.
This practice is applied pursuant, in particular, to the following United States laws and measures:
(1) Section 129 of the URAA, codified as 19 U.S.C. § 3538;
(2) the United States Statement of Administrative Action that accompanied the Uruguay
Round Agreements Act, H.R. Doc. No. 103-316, vol. 1;
(3) notwithstanding its claims to the contrary in DS429, the absence of any legal authority
under U.S. law to fully refund unliquidated entries in a WTO consistent manner, as
illustrated by the settlement agreement in DS429.
2.4.2. Legal Basis of Complaint
Because the United States has acted in the manner just described, Viet Nam considers these
provisions to be inconsistent, as such, with certain WT O obligations. Viet Nam considers these
actions to be inconsistent with the following provisions of the Anti-Dumping Agreement and the
GATT 1994:
(1) Article 1 of the Anti-Dumping Agreement, to the extent that an anti-dumping measure is
applied despite imposition of the duty pursuant to an investigation conducted in violation of
the GATT 1994 and the Anti-Dumping Agreement.
(2) Article 9.2 of the Anti -Dumping Agreement, to the extent that the USDOC and other
relevant United States agencies continue to colle ct anti-dumping duties at a level known to
be in excess of the appropriate amount.
(3) Article 9.3 of the Anti -Dumping Agreement, to the extent that the USDOC and other
relevant United States agencies continue to collect anti -dumping duties at a level that
exceeds the margin of dumping as established under Article 2.
(4) Article 11.1 of the Anti -Dumping Agreement, to the extent that the anti -dumping duty
order remains in effect, and anti-dumping duties continue to be collected, beyond the period
necessary to counteract dumping.
(5) Article 18.1 of the Anti -Dumping Agreement, to the extent that the continued collection
of duties amounts to an action that is performed without the authority provided in the
GATT 1994.

3. REQUEST
Viet Nam hereby respectfully requests that a panel be established, with the standard terms of
reference, by the Dispute Settlement Body pursuant to Articles 4.7 and 6 of the DSU, Article XXIII
of the GATT 1994, and Article 17.4 of the Anti-Dumping Agreement.