UNITED STATES - SECTION 129(c)(1) OF THE
URUGUAY ROUND AGREEMENTS ACT
 

Report of the Panel

(Continued)

2. Meaning and scope of section 129(c)(1)

6.34 In order to determine whether section 129(c)(1) requires (or has the effect of requiring) and/or precludes (or has the effect of precluding) any of the actions specified by Canada, the Panel must first make a detailed examination of the meaning and scope of section 129(c)(1).

(a) Examination of the URAA

6.35 Consistently with the parties' submissions, our examination of section 129(c)(1) will address both the text of section 129(c)(1) and relevant portions of the Statement of Administrative Action (the "SAA") accompanying the URAA.⁸⁵

6.36 With respect to the relationship between section 129(c)(1) and the SAA, we note Canada's statement that:

The SAA sets forth the authoritative interpretation of the URAA and the US Administration's obligations in implementing the URAA, as agreed between the US Administration and the US Congress. Congress approved the SAA in section 101 of the URAA and provided, in section 102 of the URAA, that "[t]he statement of administrative action approved by the Congress under section 101(a) shall be regarded as an authoritative expression by the United States concerning the interpretation and application of the Uruguay Round Agreements and this Act in any judicial proceeding in which a question arises concerning such interpretation or application".⁸⁶

6.37 The United States has raised no objections to Canada's statement on the relationship between the SAA and the URAA.⁸⁷ We therefore adopt it for the purposes of our analysis in this case.⁸⁸

6.38 Accordingly, in our examination of section 129(c)(1), we must be mindful of the legal status of the SAA in US law and take account of its content. This said, two caveats should be noted. First, it should be remembered that section 129(c)(1) is to be interpreted in the light of the SAA, and not the other way round.⁸⁹ Second, it should be recalled that, even though the SAA is intended to shed light on the meaning of the various provisions of the URAA, the statements contained in the SAA may, themselves, be open to interpretation.

(b) Examination of section 129(c)(1) as interpreted by the SAA

6.39 Section 129(c)(1) reads:

(1) EFFECTS OF DETERMINATIONS.- Determinations concerning title VII of the Tariff Act of 1930 that are implemented under this section shall apply with respect to unliquidated entries of the subject merchandise (as defined in section 771 of that Act) that are entered, or withdrawn from warehouse, for consumption on or after-

(A) in the case of a determination by the Commission under subsection (a)(4), the date on which the Trade Representative directs the administering authority under subsection (a)(6) to revoke an order pursuant to that determination, and

(B) in the case of a determination by the administering authority under subsection (b)(2), the date on which the Trade Representative directs the administering authority under subsection (b)(4) to implement that determination.

6.40 The SAA, in the first paragraph of section B.1.c.(3), contains the following statement regarding section 129(c)(1):

Consistent with the principle that GATT panel recommendations apply only prospectively, subsection 129(c)(1) provides that where determinations by the ITC or Commerce are implemented under subsections (a) or (b), such determinations have prospective effect only. That is, they apply to unliquidated entries of merchandise entered, or withdrawn from warehouse, for consumption on or after the date on which the Trade Representative directs implementation. Thus, relief available under subsection 129(c)(1) is distinguishable from relief available in an action brought before a court or a NAFTA binational panel, where, depending on the circumstances of the case, retroactive relief may be available. Under 129(c)(1), if implementation of a WTO report should result in the revocation of an antidumping or countervailing duty order, entries made prior to the date of Trade Representative's direction would remain subject to potential duty liability.⁹⁰

(i) Arguments of the parties

6.41 Canada argues that, pursuant to section 129(c)(1), the Department of Commerce can only apply a new WTO-consistent determination made by the Department under section 129(b)(4) or the ITC under section 129(a)(6) to imports that enter the United States after the Implementation date. Canada considers that the words of section 129(c)(1) that limit application of a new, WTO-consistent determination to future entries, have the effect of precluding such application to "prior unliquidated entries". According to Canada, the use of the word "after" in section 129(c)(1) excludes any interpretation that would allow the Department of Commerce to apply the new determination to "prior unliquidated entries". Thus, in Canada's view, section 129(c)(1) directs itself to "prior unliquidated entries" by negative implication.

6.42 The United States points out that section 129(c)(1) does not contain any language addressing what Canada terms "prior unliquidated entries". The United States argues that section 129(c)(1) only addresses the treatment of entries that take place on or after the date of implementation, and even then, only addresses the application of the particular determination issued under section 129 to those entries. The United States states that the consequence of this is that the treatment of "prior unliquidated entries" would not be determined in a section 129 determination. Rather, the United States argues, the treatment of "prior unliquidated entries" would be determined in a separate proceeding.

(ii) Evaluation by the Panel

6.43 The Panel recalls that section 129(c)(1) provides that "[d]eterminations concerning title VII of the Tariff Act of 1930" that are "implemented" under "this section" "shall apply with respect to unliquidated entries of the subject merchandise [�] that are entered [�] on or after" the date on which the USTR (i) directs revocation of an antidumping or countervailing duty order pursuant to such determinations or (ii) directs implementation of such determinations in cases where those determinations result in the setting of a new cash deposit rate.

6.44 We begin our examination of section 129(c)(1) by considering the phrase "[d]eterminations concerning title VII of the Tariff Act of 1930 that are implemented under this section". First of all, like the parties, we understand the term "this section" as used in the aforementioned phrase to refer to section 129 as a whole. The context of section 129(c)(1) supports this reading. As Canada points out, when a reference in section 129 is not to the section as a whole, but to a section within section 129, the terms "subsection" or "paragraph" are normally used.⁹¹

6.45 As concerns the term "[d]eterminations concerning title VII of the Tariff Act of 1930", we concur with the parties that it limits the scope of section 129(c)(1) to determinations which are made under section 129 and pertain to dumping, subsidization and injury. As an initial matter, we note that title VII of the Tariff Act of 1930 contains the antidumping and countervailing duty provisions of US law. Further, it appears to us that the qualifying words "concerning title VII of the Tariff Act of 1930" are used in section 129(c)(1) in order to make it clear that section 129(c)(1) applies to antidumping and countervailing duty determinations, but not to safeguards determinations, which are contemplated in subsection 129(a). Since the issuance of antidumping and countervailing duty determinations is dealt with in subsections 129(a)(4) and 129(b)(2), we consider that the term "[d]eterminations concerning title VII of the Tariff Act of 1930" as it appears in section 129(c)(1) should be understood to refer to antidumping and countervailing duty determinations which have been made under those subsections.

6.46 Finally, with respect to the term "implemented", we agree with the parties that this term limits the application of section 129(c)(1) to those determinations which are given legal effect. As the United States has explained, in instances where a new determination under section 129 would not change the antidumping or countervailing duty measure in place, it may not be necessary to give a new determination legal effect. Subsections 129(a)(6) and 129(b)(4) would appear to confirm that the USTR has the authority, but is not obligated to implement determinations made under section 129.⁹²

6.47 In the light of the above, we find that the phrase " d eterminations concerning title VII of the Tariff Act of 1930 that are implemented under this section" refers to antidumping and countervailing duty determinations made under subsections 129(a)(4) and 129(b)(2) (hereafter "section 129 determinations") and implemented under subsections 129(a)(6) and 129(b)(4). With this in mind, we now turn to examine the remainder of section 129(c)(1).

6.48 Pursuant to section 129(c)(1), a section 129 determination that is implemented "shall apply with respect to unliquidated entries of the subject merchandise � that are entered � on or after" the date on which the USTR directs revocation of an antidumping or countervailing duty order pursuant to the section 129 determination (as contemplated in section 129(c)(1)(A)) or directs implementation of the section 129 determination (as contemplated in section 129(c)(1)(B)). Thus, it is clear to us that whenever a section 129 determination is implemented, it applies to entries⁹³ that take place on or after the date of implementation.⁹⁴

6.49 We further find, and the parties agree, that the language of section 129(c)(1) -- "shall apply to [�] entries [�] that are entered [�] on or after the date of implementation " (emphasis added) -- necessarily implies that a section 129 determination that is implemented does not apply to entries that took place before the date of implementation, i.e., to what Canada terms "prior unliquidated entries".⁹⁵

6.50 Our reading of the text of section 129(c)(1) is not contradicted by either the context or purpose of section 129(c)(1). As regards the context of section 129(c)(1), we are not aware of anything in the provisions of section 129 as a whole, the URAA or title VII of the Tariff Act of 1930 which would support a different reading of the terms of section 129(c)(1).⁹⁶

6.51 Regarding the purpose of section 129(c)(1), the United States submits, and Canada does not dispute, that section 129(c)(1) has the "purpose of providing the effective date for new, WTO-consistent Department of Commerce or ITC determinations that USTR directs the Department of Commerce to implement".⁹⁷ We agree and note that, on our reading, section 129(c)(1) fully effects that purpose.⁹⁸

6.52 As for the purpose of section 129 as a whole, we share the US view that section 129 as a whole is intended "to provide a basis in domestic law for the Department of Commerce and the International Trade Commission to reconsider and revise final determinations so as to be consistent with adverse WTO reports and for USTR to direct implementation of those determinations".⁹⁹ It should be recalled, in this regard, that, in the view of the United States, there is no obligation under WTO law to implement adverse DSB rulings with respect to "prior unliquidated entries".¹⁰⁰ Section 129(c)(1), as we understand it, is consistent with this view, inasmuch as it does not provide for the application of section 129 determinations to "prior unliquidated entries". In that sense, we think that our reading of section 129(c)(1) is not contradicted by the purpose of section 129 as a whole.

6.53 Based on the foregoing considerations, we conclude that only determinations made and implemented under section 129 are within the scope of section 129(c)(1) and that such determinations are not applicable to "prior unliquidated entries".

3. Whether section 129(c)(1) requires and/or precludes any of the actions identified by Canada

6.54 The Panel will now proceed to assess whether section 129(c)(1), as understood by the Panel, supports Canada's assertions that, with respect to "prior unliquidated entries", section 129(c)(1) "requires" the United States to take the actions listed in para. 6.31 and that it "precludes" the United States from taking the actions listed in para. 6.32.

6.55 We recall, in this regard, that section 129(c)(1), on its face, does not address entries that took place before the implementation date, i.e., "prior unliquidated entries". Section 129(c)(1) only speaks to entries that take place on or after the implementation date. It is clear to us, therefore, that section 129(c)(1) does not, by its express terms, require or preclude any particular action with respect to "prior unliquidated entries". We consider that the above-quoted paragraph of the SAA -- i.e., the first paragraph of section B.1.c.(3) -- supports our view.¹⁰¹

6.56 Therefore, we conclude that Canada has not succeeded in establishing that, with respect to "prior unliquidated entries", the express terms of section 129(c)(1), read in the light of the SAA, require the Department of Commerce to take any of the actions listed in para. 6.31 above or preclude the Department of Commerce from taking any of the actions listed in para. 6.32 above.

4. Whether section 129(c)(1) has the effect of requiring and/or precluding any of the actions identified by Canada

6.57 The Panel next turns to consider Canada's additional assertions that section 129(c)(1) has the effect of requiring the Department of Commerce to take specified actions with respect to "prior unliquidated entries" and that section 129(c)(1) has the effect of precluding the Department of Commerce from taking specified actions with respect to such entries.¹⁰²

6.58 We will first examine the arguments of the parties relating to section 129(c)(1) as enacted. After that, we will consider the parties' arguments concerning relevant portions of the SAA. We wish to be clear that we assess these arguments separately for convenience of analysis only. As we have noted, section 129(c)(1) must be read together with the SAA.¹⁰³ Accordingly, we will not reach any conclusions regarding Canada's assertions that section 129(c)(1) has the effect of requiring and precluding certain actions until after we have taken into account relevant parts of the SAA. Our conclusions regarding the assertions in question will, as a result, be based on section 129(c)(1) as interpreted by the SAA, rather than on section 129(c)(1) read in isolation. Moreover, before reaching any conclusions regarding Canada's assertions, we will also address the application of section 129(c)(1) to date.

(a) Section 129(c)(1) as enacted

6.59 As noted above, under this subheading, the Panel will describe and analyse the arguments of the parties which relate to section 129(c)(1) as enacted. For the reasons set forth in the previous paragraph, our findings under this subheading will be provisional.

(i) Arguments of the parties

6.60 Canada considers that the effect of section 129(c)(1) is broader than just the immediate determinations made under section 129. Canada submits that a US court would find that the language of section 129(c)(1) has the effect of precluding the Department of Commerce from applying a new, WTO-consistent determination to "prior unliquidated entries" because otherwise the express limitation to future entries contained in section 129(c)(1) would be meaningless. Canada argues that the wording in section 129(c)(1) would be materially undermined if section 129(c)(1) were interpreted to allow the Department of Commerce to take action to comply with an adverse DSB ruling with respect to "prior unliquidated entries".

6.61 The United States argues that section 129(c)(1) does not address what actions the Department of Commerce may or may not take in a separate determination in a separate "segment" of the same proceeding (e.g., any separate administrative review of the same antidumping or countervailing duty order).¹⁰⁴ According to the United States, a determination made in a distinct segment of the same proceeding would not, therefore, be subject to section 129(c)(1).

6.62 This can be illustrated, in the view of the United States, by considering two scenarios identified by Canada in the course of the proceedings. Under the first scenario (which concerns what Canada terms "methodology cases"), the challenged determination is a final dumping determination in an investigation. The United States notes that if the challenge were successful, the Department of Commerce may be able to implement the adverse DSB ruling by making changes in its methodologies and issue a new, WTO-consistent determination under section 129. That determination would be applied to all entries that took place on or after the implementation date. The United States further notes that, if a company subsequently requested an administrative review of "prior unliquidated entries", the Department of Commerce would conduct the administrative review of those entries and issue a determination in that segment of the proceeding. According to the United States, because the administrative review determination would not be the determination implemented under section 129, nothing in section 129(c)(1) would preclude Commerce from applying a WTO-consistent methodology developed in the section 129 determination in that administrative review (i.e., in another segment of the same proceeding).¹⁰⁵

6.63 The second scenario addressed by the United States involves what Canada describes as a "revocation case", i.e., a situation where a WTO challenge results in the revocation of an antidumping or countervailing duty order because the new, WTO-consistent determination issued under section 129 results in a finding of no injury, no dumping or no subsidization. The United States notes that, under the terms of section 129(c)(1), the revocation would apply to all entries taking place on or after the date of implementation. With respect to the treatment of "prior unliquidated entries" in such a situation, the United States notes that it is not clear which of a number of options the Department of Commerce would pursue, as the Department has not faced such a situation to date. The United States submits, however, that section 129(c)(1) would not mandate any particular treatment of "prior unliquidated entries" in such situations. The United States points out, in particular, that section 129(c)(1) does not require the United States to apply duties to those entries, does not limit the discretion of the Department of Commerce in deciding how to interpret and apply the antidumping and countervailing duty laws in separate segments of the proceedings with respect to those entries, does not limit judicial review of the results of those separate proceedings, and does not limit the obligation of the Department of Commerce to implement the results of any such judicial proceedings.

6.64 Canada submits that the US assertion that, in methodology cases, the Department of Commerce could "circumvent" the limitation in section 129(c)(1) with respect to "prior unliquidated entries" in cases where implementation of a DSB ruling requires the Department of Commerce to change its interpretation of the law or its methodology is untested in the administrative practice of the Department of Commerce or in US courts. Canada further argues that the US assertion goes against US principles of statutory construction. Canada notes, in this respect, that the US assertion implies that section 129(c)(1) would have no effect other than to prevent the refund of unjustifiable cash deposits on "prior unliquidated entries" while leaving the Department of Commerce free to make definitive duty determinations for such entries in administrative reviews in a WTO-consistent manner. Canada considers it unlikely that the US Congress would have created the limitation in section 129(c)(1) merely to permit temporary retention of excessive cash deposits that would be returned at the end of the administrative reviews. Canada points out, in this regard, that US jurisprudence establishes that a court "cannot presume that Congress intended [one result] with one hand, while reducing it to a veritable nullity with the other".¹⁰⁶

6.65 Regarding revocation cases, Canada argues that, at least with respect to cases in which an antidumping or countervailing duty order was revoked as a result of a new no-injury determination by the ITC, the Department of Commerce, because of section 129(c)(1), would have to retain cash deposits on "prior unliquidated entries", conduct an administrative review and levy definitive duties with regard to such entries. In Canada's view, the Department of Commerce would have no legal authority or administrative discretion to decline to assess definitive duties on such entries, as it could not disregard the original injury finding, which would remain in effect as a matter of US law with respect to "prior unliquidated entries" notwithstanding the new no-injury determination by the ITC.¹⁰⁷ For Canada it is clear that it is because of section 129(c)(1) that the Department of Commerce would retain cash deposits, conduct administrative reviews and assess definitive duties in such situations. Canada submits, in this respect, that if there were no section 129(c)(1), then a negative injury finding by the ITC and the revocation of an antidumping or countervailing duty order under section 129 would apply to all unliquidated entries, including "prior unliquidated entries". Canada notes that, in such circumstances, cash deposits would be returned to importers, and the Department of Commerce would neither conduct an administrative review nor assess definitive duties.

(ii) Evaluation by the Panel

6.66 Since the parties have discussed the issue of whether section 129(c)(1) has the effect of requiring and/or precluding certain actions with respect to "prior unliquidated entries" on the basis of two scenarios identified by Canada, the Panel, too, will conduct its analysis on that basis. For ease of reference, we will adopt Canada's terminology and refer to those scenarios as the "methodology cases" and the "revocation cases", respectively.¹⁰⁸

Methodology cases

6.67 We first consider the operation of section 129(c)(1) in methodology cases. Methodology cases are cases in which the section 129 determination does not result in the revocation of the original antidumping or countervailing duty order, but instead results in a new margin of dumping or a new countervailable subsidy rate. Such an outcome may be due, for instance, to the application of a new, WTO-consistent methodology or a new, WTO-consistent interpretation of US antidumping or countervailing duty laws.¹⁰⁹ If the USTR directs implementation of a section 129 determination of the aforementioned type, that determination would be applied, pursuant to section 129(c)(1), to all entries that take place on or after the implementation date.¹¹⁰ As a practical matter, the section 129 determination would be applied by setting a new cash deposit rate for such entries.¹¹¹

6.68 Turning now to Canada's assertions regarding the "effect" of section 129(c)(1) vis-�-vis "prior unliquidated entries", we begin our analysis by considering what would be the impact on "prior unliquidated entries" of a section 129 determination which establishes a new dumping margin or a new countervailable subsidy rate. As we understand it, since a section 129 determination of this type would not be applicable to "prior unliquidated entries", that determination, as such, would not have an impact on such entries. In other words, we think it can be inferred from the fact that a section 129 determination which establishes a new dumping margin or a new countervailable subsidy rate is inapplicable to "prior unliquidated entries" that the Department of Commerce would not be required, because of section 129(c)(1), to refund excessive cash deposits previously collected on "prior unliquidated entries" or to make determinations regarding dumping or subsidization and assess definitive antidumping or countervailing duties with respect to such entries on the basis of the new, WTO-consistent methodology.

6.69 Conversely, we think it can not be inferred from the mere fact that a section 129 determination which establishes a new dumping margin or a new countervailable subsidy rate is inapplicable to "prior unliquidated entries" that the Department of Commerce would be required to retain excessive cash deposits collected on such entries or would be precluded from refunding such cash deposits. Nor does it follow from the fact that a section 129 determination does not apply to "prior unliquidated entries" that the Department of Commerce would be required to make administrative review determinations regarding dumping or subsidization and assess definitive antidumping or countervailing duties with respect to "prior unliquidated entries" on the basis of the previous, WTO inconsistent methodology, or would be precluded from making such determinations and assessing definitive duties with respect to such entries on the basis of the new, WTO-consistent methodology.¹¹²

6.70 Canada nevertheless seeks to convince us that section 129(c)(1), by itself, has the effect, in methodology cases, of requiring or precluding the above-mentioned actions with respect to "prior unliquidated entries". Canada's arguments in support of its position on this point are explained most clearly in response to an assertion made by the United States. Accordingly, our analysis of Canada's arguments will focus on the evidence and arguments presented by Canada in response to the US assertion.¹¹³ The assertion in question is to the effect that, notwithstanding section 129(c)(1), the Department of Commerce would have the legal authority, in methodology cases, to make determinations regarding dumping or subsidization and assess definitive antidumping or countervailing duties with respect to "prior unliquidated entries" in an administrative review on the basis of a new, WTO-consistent methodology developed in a section 129 determination.¹¹⁴

6.71 Canada argues, first of all, that if the Department of Commerce were to make definitive duty determinations with respect to "prior unliquidated entries" in an administrative review on the basis of a new, WTO-consistent methodology, it would "circumvent" the limitation in section 129(c)(1) or "materially undermine" the effect of the wording in section 129(c)(1). We are not persuaded by this argument. As we have stated above, by its terms, section 129(c)(1) only addresses the application of section 129 determinations. Section 129(c)(1) does not speak to the application to "prior unliquidated entries" of separate determinations made in separate segments of the same proceeding¹¹⁵ and under separate provisions of US antidumping or countervailing duty laws, such as administrative review determinations. Accordingly, we see no basis for concluding that the language used in section 129(c)(1), by itself, has the effect of precluding the Department of Commerce from making definitive duty determinations in an administrative review with respect to "prior unliquidated entries" on the basis of a methodology developed in a section 129 determination.

6.72 What is more, we find convincing the argument of the United States that a distinction is to be drawn between the section 129 determination, which, e.g., establishes a particular dumping margin or countervailable subsidy rate, and the methodologies developed and applied in a section 129 determination.¹¹⁶ As we understand the terms of section 129(c)(1), they limit the application of section 129 determinations to entries that take place on or after the implementation date. We see nothing in section 129(c)(1) which would similarly limit the use of methodologies developed and applied in a section 129 determination to such entries. Thus, section 129(c)(1) does not have the effect of precluding the application of methodologies developed in a section 129 determination in administrative reviews of "prior unliquidated entries".

6.73 Finally, we note that, in the hypothetical circumstances under consideration, what the Department of Commerce would be applying in an administrative review of "prior unliquidated entries" is a methodology developed in a section 129 determination, and not the section 129 determination itself. As a consequence, we are not convinced that, in such a situation, the Department of Commerce would be considered by a US court to be applying a section 129 determination to "prior unliquidated entries" in circumvention of the provisions of section 129(c)(1). Nor do we think that the Department of Commerce could be said to be applying a section 129 determination in effect. As the United States has pointed out, the Department of Commerce would be applying the section 129 methodology to the facts established in the administrative review proceedings. It would not be applying the section 129 methodology to the facts developed in the original segment of the proceedings which was challenged at the WTO.¹¹⁷ We are not persuaded, therefore, that section 129(c)(1) has the effect of precluding the Department of Commerce from utilizing a methodology adopted in a section 129 determination in a separate segment of the proceeding, i.e., in an administrative review concerning "prior unliquidated entries".

6.74 Canada further argues that section 129(c)(1) has the effect of precluding the Department of Commerce from making definitive duty determinations with respect to "prior unliquidated entries" in an administrative review on the basis of a WTO-consistent methodology, because, under US principles of statutory construction, it must not be presumed that the US Congress intended for the results which it sought to achieve to be reduced to a veritable nullity.¹¹⁸ More specifically, Canada submits that it is unlikely that the US Congress enacted the limitation in section 129(c)(1) merely to permit the Department of Commerce to retain excessive cash deposits collected on "prior unliquidated entries" and to return them at the end of the administrative review proceedings concerning those entries.

6.75 We do not find this argument on statutory construction convincing. Section 129(c)(1) fulfils its limited purpose of providing an effective date for the application of section 129 determinations that are implemented regardless of whether a methodology developed in a section 129 determination is used in an administrative review of "prior unliquidated entries". Moreover, regardless of whether a methodology developed in a section 129 determination is used in an administrative review of "prior unliquidated entries", section 129(c)(1) ensures that section 129 determinations are only applied to entries that occur on or after the implementation date. We are, therefore, not persuaded that a US court would interpret section 129(c)(1) to preclude the Department of Commerce from using a methodology developed in a section 129 determination in an administrative review of "prior unliquidated entries" on the grounds that, on any other interpretation, it would become meaningless and devoid of any useful effect.

6.76 As regards Canada's reliance on the likely intent of the US Congress, it would seem to be reasonable to assume, as Canada does, that the US Congress did not enact section 129(c)(1) "to permit temporary retention of excessive cash deposits" collected on "prior unliquidated entries". In our view, the US Congress enacted section 129(c)(1) to ensure compliance with adverse DSB rulings only with respect to entries that take place on or after the implementation date. It did so apparently in the belief that there was no requirement under WTO law to implement an adverse DSB ruling with respect to "prior unliquidated entries". Contrary to what Canada's argument suggests, however, the fact that the US Congress sought to ensure compliance only with respect to post-implementation entries does not necessarily imply that the US Congress sought to preclude compliance with respect to "prior unliquidated entries". Indeed, such an assumption strikes us as rather implausible. We think it more likely that the US Congress simply did not seek to ensure compliance with respect to "prior unliquidated entries". In any event, we note that, other than the SAA (which, as we will see below, does not support Canada's position), Canada has provided no evidence regarding the legislative history of section 129. For these reasons, we do not consider that a US court would interpret section 129(c)(1) to preclude the Department of Commerce from making administrative review determinations with respect to "prior unliquidated entries" consistently with an adverse DSB ruling.

6.77 In the light of the above considerations, we provisionally find that Canada has not succeeded in establishing that, in methodology cases, section 129(c)(1), by itself, has the effect of precluding the Department of Commerce from making administrative review determinations regarding dumping or subsidization and assessing definitive antidumping or countervailing duties with respect to "prior unliquidated entries" on the basis of a new, WTO-consistent methodology developed in a section 129 determination. Based also on the above considerations, we provisionally find that the evidence and arguments presented by Canada are, likewise, insufficient to establish that, in methodology cases, section 129(c)(1), by itself, has the effect of requiring the Department of Commerce to make administrative review determinations regarding dumping or subsidization and assess definitive antidumping or countervailing duties with respect to "prior unliquidated entries" on the basis of a methodology found by the DSB to be WTO inconsistent.¹¹⁹

6.78 We consider, next, whether Canada has succeeded in establishing any of its other assertions regarding the effect of section 129(c)(1) in methodology cases, i.e., Canada's assertion that section 129(c)(1), by itself, has the effect (i) of requiring the Department of Commerce to retain excessive cash deposits collected on "prior unliquidated entries", (ii) of precluding the Department of Commerce from returning such cash deposits and (iii) of requiring the Department of Commerce to conduct administrative reviews with respect to such entries on the basis of a methodology found by the DSB to be WTO inconsistent.

6.79 In support of these assertions, Canada has not offered evidence or arguments different from, or additional to, the evidence and arguments adduced by it in connection with its assertions regarding administrative review determinations. We have found the evidence and arguments adduced by Canada in connection with its assertions regarding administrative review determinations to be insufficient to sustain those assertions. In our assessment, the evidence and arguments in question are also insufficient to sustain Canada's assertions in respect of cash deposits and the conduct of administrative reviews.

6.80 In particular, we do not think that if the Department of Commerce did not retain excessive cash deposits collected on "prior unliquidated entries" or did not conduct administrative reviews with respect to such entries on the basis of the methodology found by the DSB to be WTO inconsistent, it would be "circumventing" the limitation in section 129(c)(1) or "materially undermining" the effect of the wording in section 129(c)(1).¹²⁰ As we have pointed out above, section 129(c)(1) only addresses the application of section 129 determinations. It does not require or preclude any particular actions with respect to "prior unliquidated entries" in a separate segment of the same proceeding. Nor do we consider that if the Department of Commerce did not retain excessive cash deposits collected on "prior unliquidated entries" or did not conduct administrative reviews with respect to such entries based on the WTO inconsistent methodology, it would render section 129(c)(1) ineffective or would be acting inconsistently with the likely intent of the US Congress. The return of excessive cash deposits collected on "prior unliquidated entries" or the conduct of administrative reviews with respect to such entries on the basis of a WTO-consistent methodology developed in a section 129 determination would not make the provisions of section 129(c)(1) meaningless. Moreover, such actions would not, in our view, be inconsistent with the likely intent of the US Congress in enacting section 129(c)(1), viz., to ensure implementation of an adverse DSB ruling only with respect to post-implementation entries.

6.81 Accordingly, we provisionally find that Canada has failed to demonstrate that section 129(c)(1), by itself, has the effect, in methodology cases, of requiring the Department of Commerce to retain excessive cash deposits collected on "prior unliquidated entries" or of precluding the Department of Commerce from returning such cash deposits, or of requiring the Department of Commerce to conduct administrative reviews for "prior unliquidated entries" on the basis of a methodology found by the DSB to be WTO inconsistent.

Revocation cases

6.82 As stated above, as part of our assessment of Canada's reading of section 129(c)(1), we also need to consider the other cases specifically addressed by Canada, i.e., revocation cases. Revocation cases are cases in which the section 129 determination results in the revocation of the original antidumping or countervailing duty order. An antidumping or countervailing duty order would be revoked if a section 129 determination established that there was no dumping, no subsidization or no injury. Pursuant to section 129(c)(1), the revocation of a WTO inconsistent antidumping or countervailing duty order would apply to all entries that take place on or after the implementation date.¹²¹ We are led to understand that, in practice, this would mean that, as of the implementation date, cash deposits would no longer be required on new entries.¹²²

6.83 Turning now to Canada's assertions regarding the "effect" of section 129(c)(1) vis-�-vis "prior unliquidated entries", we begin our analysis by considering what would be the impact on "prior unliquidated entries" of a section 129 determination which results in the revocation of an antidumping or countervailing duty order. As we see it, since, pursuant to section 129(c)(1), a section 129 determination of this type would not be applicable to "prior unliquidated entries", that determination, as such, would not have an impact on "prior unliquidated entries". In other words, we think it can be inferred from the fact that a revocation of an antidumping or countervailing duty order would apply only with respect to post-implementation entries that the Department of Commerce would not be required, because of section 129(c)(1), to refund cash deposits previously collected on "prior unliquidated entries" on the basis of the WTO inconsistent antidumping or countervailing duty order, to decline to conduct administrative reviews for such entries, to decline to make determinations regarding dumping or subsidization with respect such entries on the basis of the WTO inconsistent antidumping or countervailing duty order or to decline to assess definitive antidumping or countervailing duties with respect to such entries on the basis of the WTO inconsistent antidumping or countervailing duty order.

6.84 Conversely, we think it can not be inferred from the mere fact that a revocation is inapplicable to "prior unliquidated entries" that the Department of Commerce would be required to retain cash deposits collected on such entries on the basis of the WTO inconsistent antidumping or countervailing duty order or would be precluded from refunding such cash deposits. Nor does it follow from the fact that a revocation does not apply to "prior unliquidated entries" that the Department of Commerce would be required to conduct administrative reviews for such entries. Nor does the non-application of a revocation to "prior unliquidated entries" necessarily imply that the Department of Commerce would be required to make administrative review determinations regarding dumping or subsidization and assess definitive antidumping or countervailing duties with respect to "prior unliquidated entries" on the basis of the WTO inconsistent antidumping or countervailing duty order, or would be precluded from making such determinations and assessing definitive duties with respect to such entries in a manner consistent with WTO requirements.¹²³

6.85 Canada nevertheless seeks to convince us that section 129(c)(1), by itself, has the effect, in revocation cases, of precluding the Department of Commerce from (i) returning cash deposits collected on "prior unliquidated entries" on the basis of the WTO inconsistent antidumping or countervailing duty order, (ii) declining to conduct an administrative review for such entries and (iii) declining to make administrative review determinations with respect to such entries on the basis of the WTO inconsistent antidumping or countervailing duty order. In support of this assertion, Canada argues that, but for the existence of section 129(c)(1), the revocation of an antidumping or countervailing duty order would apply not only to entries that occur on or after the implementation date, but also to "prior unliquidated entries". According to Canada, the Department of Commerce would then be required to return cash deposits collected on "prior unliquidated entries" on the basis of the WTO inconsistent order, and could neither conduct administrative reviews for such entries nor assess duties on such entries.

6.86 The premise of Canada's argument, as we understand it, is that, if there were no section 129(c)(1), a section 129 determination which was implemented, including one which results in the revocation of an antidumping or countervailing duty order, would apply to all unliquidated entries, i.e., "prior unliquidated entries" and future entries.¹²⁴ We are not convinced of the validity and relevance of Canada's premise. Indeed, if there were no section 129(c)(1), there would be no effective date for the application of section 129 determinations which the USTR directs to implement. In this regard, it seems to us that the very existence of section 129(c)(1) suggests that it may be necessary, for the purposes of US law, to provide for an effective date for the application of section 129 determinations. In fact, the United States has specifically stated that, in the absence of section 129(c)(1), it would be necessary to establish an effective date for determinations implemented under section 129.¹²⁵ Canada has offered nothing in rebuttal of this argument.

6.87 Even disregarding the issue of the effective date and accepting that, in the absence of section 129(c)(1), a revocation would apply to "prior unliquidated entries" as well, we fail to see how this would demonstrate that section 129(c)(1) has the effect of precluding the Department of Commerce from returning cash deposits on "prior unliquidated entries", declining to hold administrative reviews for such entries and declining to assess duties with respect to such entries.

6.88 Indeed, if there were no section 129(c)(1) and a provision like section 129(c)(1) was subsequently enacted, the consequence of this would be that section 129 determinations would not apply to "prior unliquidated entries". As we have said, this would mean that the Department of Commerce would then not be required, as a matter of US law, to return cash deposits collected on such entries based on the WTO inconsistent antidumping or countervailing duty order, to decline to hold administrative reviews for such entries and to decline to assess duties with respect to such entries on the basis of the WTO inconsistent order. Moreover, as we have also observed, it would not follow from the fact that a revocation would then be inapplicable to "prior unliquidated entries" that the Department of Commerce could not return cash deposits collected on "prior unliquidated entries", could not decline to hold administrative reviews with respect to such entries and could not decline to assess duties with respect to such entries.

6.89 Other than the evidence and arguments we have previously considered in the context of methodology cases, Canada has offered no specific arguments or evidence in support of its assertion that the enactment of section 129(c)(1) would nevertheless have the effect, in revocation cases, of precluding any of the actions mentioned in the previous paragraph. Whilst we consider that the evidence and arguments adduced by Canada in the context of methodology cases are applicable, mutatis mutandis, in the context of revocation cases as well, it should be recalled that we have found the evidence and arguments in question to be insufficient to sustain Canada's assertions in the context of methodology cases. We see no basis for considering that, notwithstanding this finding, the same evidence and arguments support Canada's assertions in the context of revocation cases.

6.90 In particular, if the Department of Commerce, in revocation cases, did not retain cash deposits collected on "prior unliquidated entries" on the basis of the WTO inconsistent antidumping or countervailing duty order, did not conduct administrative reviews with respect to such entries or did not assess definitive antidumping or countervailing duties with respect to such entries, it would not, in our view, be "circumventing" the limitation in section 129(c)(1) or "materially undermining" the effect of the wording in section 129(c)(1).¹²⁶ Section 129(c)(1) only addresses the application of section 129 determinations. It does not require or preclude any particular actions with respect to "prior unliquidated entries" in a separate segment of the same proceeding. Nor do we consider that if the Department of Commerce did not retain cash deposits collected on "prior unliquidated entries" on the basis of the WTO inconsistent order, did not conduct administrative reviews with respect to such entries or did not assess duties with respect to such entries, it would render section 129(c)(1) ineffective or meaningless. Furthermore, the return of cash deposits collected on "prior unliquidated entries", the absence of administrative reviews with respect to such entries or the non-assessment of definitive duties with respect to such entries would not, in our view, be inconsistent with the likely intent of the US Congress in enacting section 129(c)(1), viz., to ensure implementation of an adverse DSB ruling only with respect to post-implementation entries.

6.91 In the light of the foregoing considerations, we provisionally find that Canada has failed to establish that, in revocation cases, section 129(c)(1), by itself, has the effect of precluding the Department of Commerce from returning cash deposits collected on "prior unliquidated entries" based on the WTO inconsistent antidumping or countervailing duty order, declining to hold administrative reviews for such entries or declining to assess duties with respect to such entries. Based also on the above considerations, we provisionally find that the evidence and arguments presented by Canada are, likewise, insufficient to establish that, in revocation cases, section 129(c)(1) has the effect of requiring the Department of Commerce to retain cash deposits collected on "prior unliquidated entries" based on the WTO inconsistent antidumping or countervailing duty order, conduct an administrative review for such entries or make administrative review determinations with respect to such entries on the basis of the WTO inconsistent order.

85 We note that, in addition to being consistent with the parties' submissions, our approach to examining US statutory law is consistent with that of previous panels. See Panel Reports on US - 1916 Act (EC), supra, para. 6.101; US - 1916 Act (Japan), supra, para. 6.112; US - Export Restraints, supra, paras. 8.88 et seq.; US - Section 301 Trade Act, supra, paras. 7.31 and 7.98.

86 Uruguay Round Agreements Act, Pub. L. No. 103-465, sections 101 and 102, 108 Stat. 4814-4819.

87 US reply to Panel Question 45.

88 Canada's statement on the legal status of the SAA is consistent with the findings of the Panel in US - Export Restraints. See Panel Report, US - Export Restraints, supra, paras. 8.93-8.100.

89 The Panel in US - Export Restraints found that the SAA has no operational life or status independently of the statute. See Panel Report, US - Export Restraints, supra, para. 8.99.

90 SAA, section B.1.c.(3), first paragraph, p. 1026.

91 E.g., section 129(c)(1)(A) ("subsection") and section 129(a)(2) ("paragraph").

92 We find confirmation for our reading of the term "implemented" in the first paragraph of section B.1.c.(2) of the SAA ("The Trade Representative may decline to request implementation of [a section 129] determination.") and section B.1.c.(5) of the SAA ("Section 129 determinations that are not implemented will not be subject to judicial or binational panel review [�]"). See SAA, supra, pp. 1025 and 1026.

93 Here and hereafter, we employ the term "entries" as a shorthand expression for "entries of the subject merchandise", as stated in section 129(c)(1). In other words, the term "entries", as used in our findings, refers to entries which are subject to a particular antidumping or countervailing duty order. We understand the term "entries" as it appears in Canada's term "prior unliquidated entries" in the same sense.

94 Under the terms of section 129(c)(1), a section 129 determination that is implemented also applies to entries that are "withdrawn from warehouse" for consumption on or after the date on which the USTR directs implementation of that determination. The parties' submissions did not specifically address this aspect of section 129(c)(1). See Canada's First Submission, paras. 5 and 26; US First Submission, para. 14. Consistently with the parties' submissions, in our examination of section 129(c)(1) we will make no further mention of the fact that section 129(c)(1) covers entries that are withdrawn from warehouse on or after the implementation date.

95 This is consistent with the first paragraph of section B.1.c.(3) of the SAA (" [ Section 129 determinations ] have prospective effect only. That is, they apply to unliquidated entries of merchandise entered [ ] for consumption on or after the date on which the Trade Representative directs implementation."). See SAA, supra, p. 1026.

96 Canada has contrasted section 129(c)(1) with section 516a of the Tariff Act of 1930. According to Canada, section 516a provides that in instances where a final decision by a US court or NAFTA Chapter Nineteen Binational Panel overturns a decision of the Department of Commerce or ITC in whole or in part, "prior unliquidated entries" are liquidated in accordance with the court or panel decision. See Canada's reply to Panel Question 3; 19 U.S.C. � 1516a(c)(1) of the Tariff Act of 1930. We see no need to examine section 516a further, as Canada does not argue that, in view of section 516a, section 129(c)(1) should be read in such a way that section 129 determinations would apply also to "prior unliquidated entries". Indeed, the first paragraph of section B.1.c.(3) of the SAA confirms that section 129(c)(1) is intended to provide for a different result from the one envisaged in cases of judicial review by US courts or NAFTA panels ("[Section 129] determinations have prospective effect only. [�] Thus, relief available under subsection 129(c)(1) is distinguishable from relief available in an action brought before a court or a NAFTA binational panel, where, depending on the circumstances of the case, retroactive relief may be available."). See SAA, supra, p. 1026.

97 US reply to Panel Question 7.

98 We find support for the United States' view in the title of section 129(c)(1) ("Effects of Determinations") as well as the second paragraph of section B.1.c.(3) of the SAA, which talks about the "effective date of an implemented [section 129] determination". See SAA, supra, p. 1025.

99 US reply to Panel Question 4. We note that Canada has stated along very similar lines that " [ s ] ection 129 provides for the issuance of a new antidumping or countervailing duty determination by the Department of Commerce or a new injury determination by the ITC to ensure that the new determination is 'not inconsistent with' the United States' obligations under the AD Agreement or the SCM Agreement". See Canada's First Submission, para. 4. We further note that these statements are supported by the provisions of subsections (a)(1), (a)(4), (a)(6), (b)(1), (b)(2) and (b)(4) of section 129. Finally, we note that the first paragraph of section B.1.c. of the SAA confirms our understanding of the purpose of section 129 ("Section 129 [�] establishes a procedure by which the Administration may obtain advice it requires to determine its response to an adverse WTO panel or Appellate Body report concerning U.S. obligations under the Agreement on Safeguards, Antidumping, or Subsidies and Countervailing Measures. Section 129 also establishes a mechanism that permits the agencies concerned [�] to issue a second determination, where such action is appropriate, to respond to the recommendations in a WTO panel or Appellate Body report."). See SAA, supra, p. 1022.

100 We have no reason to doubt that the United States adhered to the same interpretation of WTO law when section 129 was enacted. The first paragraph of section B.1.c.(3) of the SAA in fact confirms that the United States did not consider that it was obligated to implement with respect to "prior unliquidated entries" ("Consistent with the principle that GATT panel recommendations apply only prospectively, subsection 129(c)(1) provides that where determinations by the ITC or Commerce are implemented under subsections (a) or (b), such determinations have prospective effect only. That is, they apply to unliquidated merchandise entered [�] for consumption on or after the date on which the [USTR] directs implementation [of a section 129 determination]."). See SAA, supra, p. 1025.

101 The SAA paragraph in question is reproduced at para. 6.40 above. Since we will provide a detailed analysis of the first paragraph of section B.1.c.(3) of the SAA in Subsection C.4.(b) below, we do not offer any discussion of the relevant SAA paragraph at this point. We further note that the evidence before us relating to the application of section 129(c)(1) to date does not support Canada's view that section 129(c)(1) requires and/or precludes any of the actions which it has identified. See, infra, Subsection C.4.(c).

102 For a description of the actions specified by Canada see, supra, paras. 6.31 and 6.32.

103 See, supra, para. 6.38.

104 The United States notes that section 351.102 of the regulations of the Department of Commerce defines a "segment" of a proceeding as follows:

(1) In general. An antidumping or countervailing duty proceeding consists of one or more segments. "Seg�ment of a pro�ceeding" or "seg�ment of the proceeding" refers to a portion of the proceeding that is review�able under section 516A of the Act.

(2) Examples. An antidumping or countervailing duty investigation or a review of an order or suspended investigation, or a scope inquiry under � 351.225, each would constitute a segment of a proceeding. (19 C.F.R. 351.102 (2000))

126 We once again note that we are not called on, in this case, to make findings regarding whether provisions of US law other than section 129(c)(1) would preclude the Department of Commerce from returning cash deposits collected on "prior unliquidated entries" on the basis of the WTO-inconsistent antidumping or countervailing duty order, from declining to conduct administrative reviews with respect to such entries or from declining to assess duties with respect to such entries on the basis of the WTO-inconsistent order.

To continue with Conclusion

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