19 U.S.C. § 3538

Administrative action following WTO panel reports

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(a) Action by United States International Trade Commission(1) Advisory report

If a dispute settlement panel finds in an interim report under Article 15 of the Dispute Settlement Understanding, or the Appellate Body finds in a report under Article 17 of that Understanding, that an action by the International Trade Commission in connection with a particular proceeding is not in conformity with the obligations of the United States under the Antidumping Agreement, the Safeguards Agreement, or the Agreement on Subsidies and Countervailing Measures, the Trade Representative may request the Commission to issue an advisory report on whether title VII of the Tariff Act of 1930 [19 U.S.C. 1671 et seq.] or title II of the Trade Act of 1974 [19 U.S.C. 2251 et seq.], as the case may be, permits the Commission to take steps in connection with the particular proceeding that would render its action not inconsistent with the findings of the panel or the Appellate Body concerning those obligations. The Trade Representative shall notify the congressional committees of such request.

(2) Time limits for reportThe Commission shall transmit its report under paragraph (1) to the Trade Representative—(A) in the case of an interim report described in paragraph (1), within 30 calendar days after the Trade Representative requests the report; and(B) in the case of a report of the Appellate Body, within 21 calendar days after the Trade Representative requests the report.(3) Consultations on request for Commission determination

If a majority of the Commissioners issues an affirmative report under paragraph (1), the Trade Representative shall consult with the congressional committees concerning the matter.

(4) Commission determination

Notwithstanding any provision of the Tariff Act of 1930 [19 U.S.C. 1202 et seq.] or title II of the Trade Act of 1974 [19 U.S.C. 2251 et seq.], if a majority of the Commissioners issues an affirmative report under paragraph (1), the Commission, upon the written request of the Trade Representative, shall issue a determination in connection with the particular proceeding that would render the Commission’s action described in paragraph (1) not inconsistent with the findings of the panel or Appellate Body. The Commission shall issue its determination not later than 120 days after the request from the Trade Representative is made.

(5) Consultations on implementation of Commission determination

The Trade Representative shall consult with the congressional committees before the Commission’s determination under paragraph (4) is implemented.

(6) Revocation of order

If, by virtue of the Commission’s determination under paragraph (4), an antidumping or countervailing duty order with respect to some or all of the imports that are subject to the action of the Commission described in paragraph (1) is no longer supported by an affirmative Commission determination under title VII of the Tariff Act of 1930 [19 U.S.C. 1671 et seq.] or this subsection, the Trade Representative may, after consulting with the congressional committees under paragraph (5), direct the administering authority to revoke the antidumping or countervailing duty order in whole or in part.

(b) Action by administering authority(1) Consultations with administering authority and congressional committees

Promptly after a report by a dispute settlement panel or the Appellate Body is issued that contains findings that an action by the administering authority in a proceeding under title VII of the Tariff Act of 1930 [19 U.S.C. 1671 et seq.] is not in conformity with the obligations of the United States under the Antidumping Agreement or the Agreement on Subsidies and Countervailing Measures, the Trade Representative shall consult with the administering authority and the congressional committees on the matter.

(2) Determination by administering authority

Notwithstanding any provision of the Tariff Act of 1930 [19 U.S.C. 1202 et seq.], the administering authority shall, within 180 days after receipt of a written request from the Trade Representative, issue a determination in connection with the particular proceeding that would render the administering authority’s action described in paragraph (1) not inconsistent with the findings of the panel or the Appellate Body.

(3) Consultations before implementation

Before the administering authority implements any determination under paragraph (2), the Trade Representative shall consult with the administering authority and the congressional committees with respect to such determination.

(4) Implementation of determination

The Trade Representative may, after consulting with the administering authority and the congressional committees under paragraph (3), direct the administering authority to implement, in whole or in part, the determination made under paragraph (2).

(c) Effects of determinations; notice of implementation(1) Effects of determinationsDeterminations concerning title VII of the Tariff Act of 1930 [19 U.S.C. 1671 et seq.] 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 [19 U.S.C. 1677]) 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.(2) Notice of implementation(A) The administering authority shall publish in the Federal Register notice of the implementation of any determination made under this section with respect to title VII of the Tariff Act of 1930 [19 U.S.C. 1671 et seq.].(B) The Trade Representative shall publish in the Federal Register notice of the implementation of any determination made under this section with respect to title II of the Trade Act of 1974 [19 U.S.C. 2251 et seq.].(d) Opportunity for comment by interested parties

Prior to issuing a determination under this section, the administering authority or the Commission, as the case may be, shall provide interested parties with an opportunity to submit written comments and, in appropriate cases, may hold a hearing, with respect to the determination.

(Pub. L. 103–465, title I, § 129, Dec. 8, 1994, 108 Stat. 4836.)Editorial NotesReferences in Text

The Tariff Act of 1930, referred to in subsecs. (a)(1), (4), (6), (b)(1), (2), and (c)(1), (2)(A), is act June 17, 1930, ch. 497, 46 Stat. 590, which is classified generally to chapter 4 (§ 1202 et seq.) of this title. Title VII of the Act is classified generally to subtitle IV (§ 1671 et seq.) of chapter 4 of this title. For complete classification of this Act to the Code, see section 1654 of this title and Tables.

The Trade Act of 1974, referred to in subsecs. (a)(1), (4) and (c)(2)(B), is Pub. L. 93–618, Jan. 3, 1975, 88 Stat. 1978. Title II of the Act is classified generally to subchapter II (§ 2251 et seq.) of chapter 12 of this title. For complete classification of this Act to the Code, see section 2101 of this title and Tables.

Codification

Section is comprised of section 129 of Pub. L. 103–465. Subsecs. (a)(7) and (e) of section 129 of Pub. L. 103–465 amended sections 2254 and 1516a, respectively, of this title.

Statutory Notes and Related SubsidiariesEffective Date

Section effective on the date on which the WTO Agreement enters into force with respect to the United States (Jan. 1, 1995), see section 130 of Pub. L. 103–465, set out as a note under section 3531 of this title.

Notes of Decisions

Cited in 41 cases, 1999–2019 · leading case: Tembec, Inc. v. United States, 441 F. Supp. 2d 1302 (Ct. Intl. Trade 2006).

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Tembec, Inc. v. United States, 441 F. Supp. 2d 1302 (Ct. Intl. Trade 2006). · cites it 23× “19 U.S.C. § 3538 (d). Interested parties are entitled to notice of pending implementation of a section 129 determination.”

Corus Staal BV v. United States, 387 F. Supp. 2d 1291 (Ct. Intl. Trade 2005). · cites it 8× “See 19 U.S.C. § 3538 (b)(4). 14 Thus, the statutorily mandated procedure is incomplete.”

United States Steel Corp. v. United States, 621 F.3d 1351 (Fed. Cir. 2010). · cites it 3× “§ 3533 (“Section 123”) and 19 U.S.C. § 3538 (“Section 129”). Section 123 provides, in relevant part, that Promptly after the circulation of a report of a panel or of the Appellate Body to WTO members in a proceeding described in subsection (d) of this section, the Trade…”

Corus Staal BV v. United States, 493 F. Supp. 2d 1276 (Ct. Intl. Trade 2007). · cites it 6× “§ 3533 (g) (2000) (“Section 123”), and the other pursuant to section 129 of the URAA, 19 U.S.C. § 3538 (2000) (“Section 129”). 2 In the Section 123 proceedings Commerce determined that it would no longer use zero *1280 ing in antidumping investigations.”

Andaman Seafood Co., Ltd v. United States, 675 F. Supp. 2d 1363 (Ct. Intl. Trade 2010). · cites it 10× “See 19 U.S.C. § 3538 . Specifically, on November 14, 2008, Commerce “advised interested parties that it was initiating a proceeding under section 129 of the URAA .”

Dillinger France S.A. v. United States, 2018 CIT 150 (Ct. Intl. Trade 2018). · cites it 2× “"); 19 U.S.C. § 3538 ; see also Stanley Works , Slip.”

Corus Staal BV v. United States, 502 F.3d 1370 (Fed. Cir. 2007). “19 U.S.C. § 3538 (c)(1)(B); see also Statement of Administrative Action for the URAA, H.”

Ad Hoc Shrimp Trade Action Comm. v. United States, 802 F.3d 1339 (Fed. Cir. 2015). “See 19 U.S.C. § 3538 (b). The Section 129 determination at issue here is Certain Frozen Warmwater Shrimp from the People's Republic of China and Diamond Sawblades and Parts Thereof from the People’s Republic of China, 78 Fed.”

Dongbu Steel Co., Ltd. v. United States, 635 F.3d 1363 (Fed. Cir. 2011). “The United States Trade Representative consulted with appropriate congressional committees and private sector committees, and Commerce provided for public comment before determining whether and how to change its practice as required by Section 123.”

Sumecht Na, Inc. v. United States, 923 F.3d 1340 (Fed. Cir. 2019). “14, 2015) ; see 19 U.S.C. § 3538 ( Section 129 of the Uruguay Round Agreements Act).”

GPX Int'l Tire Corp v. United States, 2013 CIT 2 (Ct. Intl. Trade 2013). · cites it 2× “See 19 U.S.C. § 3538 . These concerns appear to be rationally related to the government’s interests in conserving limited resources and also consistent with the general statutory approach of prospective implementation of changes based on an adverse ruling in a WTO dispute.”

Allegheny Ludlum Corp. v. United States, 358 F. Supp. 2d 1334 (Ct. Intl. Trade 2005). · cites it 2× “PROCEDURAL HISTORY This case arises from an administrative review made pursuant to Section 129 of the Uruguay Round Agreements Act, 19 U.S.C. § 3538 (2000) (“Section 129”). The Section 129 review followed the World Trade Organization Appellate Body’s Decision (“WTO”) in United…”

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— 19 U.S.C. § 3538(b)(2) — 1 case

ThyssenKrupp Acciai Speciali, Terni S.P.A. v. United States, 602 F. Supp. 2d 1362 (Ct. Intl. Trade 2009).

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