Full opinion text
OPINION AQUILINO, Judge: Given the decision of an international panel that the United States acted inconsistently with Article 1:1 of the General Agreement on Tariffs and Trade and U.S. acquiesence in that decision in favor of Brazil, the parties return to this action to finally dispose of issues arising from the time of creation of this Court of International Trade, which is an extension of the great American experiment in judicial review of prerogatives of the sovereign that began with Chief Justice John Marshall’s nascent pronouncements that it is “emphatically the province and duty of the judicial department to say what the law is”, Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803), and “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains”, Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118, 2 L.Ed. 208 (1804). These principles remain of the essence in this action on the advent of the new World Trade Organization in furtherance of the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations to which the United States claims commitment. I Jurisdiction of the court has been invoked by the plaintiffs pursuant to 19 U.S.C. § 1516a(a)(2) and 28 U.S.C. § 1581(c) for review of Non-Rubber Footwear From Brazil; Final Results of Administrative Review of Countervailing Duty Order, 50 Fed.Reg. 15,597 (April 19, 1985), which was conducted by the International Trade Administration, U.S. Department of Commerce (“ITA”). Among other things, those results determine the aggregate net subsidy to be 11.03 percent for the period December 7, 1979, through December 31,1979, and 8.84 percent for the period January 1, 1980, through December 31, 1980. Accordingly, the Department will instruct the Customs Service to assess countervailing duties of 11.03 percent of the f.o.b. invoice price on all shipments of Brazilian non-rubber footwear exported on or after December 7, 1979, and on or before December 31, 1979. The Department will instruct the Customs Service to assess countervailing duties of 8.84 percent of the f.o.b. invoice price on all shipments exported on or after January 1, 1980, and on or before December 31, 1980. 50 Fed.Reg. at 15,599. After joinder of issue, the plaintiffs interposed motions for judgment on the record compiled by the ITA in rendering this determination. Plaintiff Footwear’s proposed order in conjunction therewith, for example, would declare it null and void and decree that the covered merchandise from Brazil entered on or after January 4, 1980 and exported from that country before December 31, 1980 be liquidated with no assessment of countervailing duties and refund of any such duties previously deposited. A While those motions were pending, plaintiff Footwear notified this court that the Committee on Subsidies and Countervailing Measures organized under the General Agreement on Tariffs and Trade (“GATT”) had agreed to a request by Brazil to convene a three-member panel to consider whether imposition of countervailing duties as determined above violated the obligations of the United States under its Agreement on Interpretation and Application of Articles VI, XVI and XXIII of GATT, the so-called “Subsidies Code”, done April 12, 1979, 31 U.S.T. 513, T.I.A.S. No. 9619, and also that the U.S. government had consented to such a panel. The plaintiff moved for a stay of proceedings, arguing, among other things, that an interpretation of that code by the panel would either resolve, or contribute to resolution of, the issues herein. The stay was granted, but plaintiffs prediction did not prove true. GATT article VI:6(a) provides that no contracting party shall levy any antidumping or countervailing duty on a product from another contracting party unless the former determines that the effect of the dumping or subsidization causes or threatens to cause material injury to an established domestic industry, or retards materially the establishment of a domestic industry. Article 1 of the Subsidies Code governs application in general of this provision, while article 4 addresses actual imposition of countervailing duties, e.g.: 3. When a countervailing duty is imposed in respect of any product, such countervailing duty shall be levied, in the appropriate amounts, on a non-diseriminatory basis on imports of such product from all sources found to be subsidized and to be causing injury, except as to imports from those sources which have renounced any subsidies in question or from which undertakings under the terms of this Agreement have been accepted. * * * * * * 9. A countervailing duty shall remain in force only as long as, and to the extent necessary to counteract the subsidization which is causing injury. The investigating authorities shall review the need for continued imposition of the duty, where warranted, on their own initiative or if any interested party so requests and submits positive information substantiating the need for review. With such provisions presumably in mind, the Brazilian government prayed in its formal Request for Conciliation under Article 17 of the Agreement that the United States Government honor its obligations under the General Agreement and the Subsidies Code by abandoning its efforts to collect any countervailing duties on Brazilian non-rubber footwear entering the United States on or after January 1, 1980 ... [and] recognize that its collection of cash deposits and its attempt to collect countervailing duties in excess of those deposits violate the relevant provisions of the Code. However, the three individuals from Germany, Hungary and Malaysia empanelled by the Subsidies Committee were unable to conclude that such relief was required. Rather, the Panel concluded that the collection of countervailing duties by the United States on entries of non-rubber footwear from Brazil between 4 January 1980 and 28 October 1981 was consistent with the United States’ obligations under the Code. It delved into the history of the disagreement which is appropriate to recite at length now, to wit: 2.1 On 12 September 1974 the US Department of the Treasury issued a countervailing duty order (T.D. 74-233, 39 FR 32903) regarding non-rubber footwear from Brazil. Pursuant to this order countervailing duties were imposed, as of that date, under Section 303 of the Tariff Act of 1930 which had been covered by the existing legislation clause under the GATT Protocol of Provisional Application, and therefore no injury determination was made. In accordance with the US law and practice then in effect, suspension of liquidation was not ordered and duties in the amounts determined in the countervailing duty order were collected upon entry. 2.2 On 28 December 1979 the US ... Treasury issued a notice (T.D. 80-12) announcing the suspension of liquidation of all entries of footwear exported from Brazil on or after 7 December 1979 and entered or withdrawn from warehouse, for consumption, on or after 4 January 1980.... (45 FR 1013).... This suspension was to remain in force pending receipt of updated information on subsidies remaining after the Industrial Products Tax (IPI) programme had been eliminated. Until such time a deposit of the estimated countervailing duty, the net amount of which had been calculated to be 1.0 per cent, would be required____ The notice specified the reasons for choosing the date of 7 December 1979: “... the Government of Brazil announced that the export payments, which were in the form of IPI credits, would be eliminated immediately instead of over a 4-year period____ Accordingly, this notice adjusts the countervailing duty rates on the subject merchandise to take into account the immediate elimination of the IPI credits.” 2.3 On 1 January 1980 the Code entered into force. Brazil and the United States were among the original signatories ... and neither of them had entered any reservation in terms of Article 19:3. On the same date the provisions of Title I of the US Trade Agreements Act of 1979 (TAA) became effective. On 2 January 1980, the authority for administering the countervailing duty law was transferred from the US ... Treasury to the US Department of Commerce (DOC). Section 104(b) of the TAA provided that signatories might request, within a three year period starting 1 January 1980, an injury review for preexisting countervailing duty orders. According to Section 104(b)(3), whenever the US International Trade Commission (USITC) received such a request, it should promptly notify the DOC, and the DOC should suspend liquidation of entries of the affected merchandise made on or after the date of the receipt of the USITC’s notification. According to Section 104(b)(4) if the USITC determined that an industry in the United States would not be materially injured if the countervailing duty order were to be revoked, the DOC should revoke this order and refund “... any estimated countervailing duties collected during the period of suspension of liquidation.” 2.4 On 28 October 1981 the USITC notified the DOC that ... Brazil had requested ... an injury determination for the 1974 countervailing duty order under Section 104(b)____ No suspension of liquidation was ordered at that time and the original suspension of liquidation ordered on 4 January 1980 remained in effect. As subsequently explained in the notice of revocation (48 FR 28310, 21 June 1983) “it was not necessary for the Department, upon notification by the USITC, to suspend liquidation of entries of the merchandise pursuant to that section (section 104(b) [ ] of the TAA), since previous suspensions remained in effect.” 2.5 Effective 26 July 1982 the Government of Brazil subjected exports of non-rubber footwear to the United States to an offsetting export tax of 8.0 per cent of the f.o.b. invoice price; this was in addition to an export tax imposed on 4 May 1981. By letter of 22 April 1983, the Brazilian Minister of Finance confirmed to the US Secretary of Commerce that the tax was of indefinite duration and would not be affected by revocation of the countervailing duty order. 2.6 On 24 May 1983 the USITC determined that an industry in the United States would not be materially injured, or threatened with material injury, by reason of imports of Brazilian non-rubber footwear if the countervailing duty order were revoked (48 FR 24796, 2 June 1983). As a result, the DOC revoked, by decision ... published on 21 June 1983 (48 FR 28310), this countervailing duty order with respect to all merchandise entered, or withdrawn from warehouse for consumption, on or after 29 October 1981, the date [after] the DOC had received notification of the request for an injury determination. The DOC also instructed customs officers to refund any estimated countervailing duties collected with respect to these entries. The USITC’s decision and the DOC revocation did not affect shipments of the merchandise entered on or before 28 October 1981. 2.7 On 19 April 1985 the DOC published the final results of its administrative review of the countervailing duty order on non-rubber footwear from Brazil concerning goods exported between 7 December 1979 and 31 December 1980. The countervailing duty levied on the entries between 1 January 1980 and 31 December 1980 was 8.84 per cent. On 9 January 1987 the DOC published the final results of its administrative review of this order concerning goods exported between 1 January 1981 and 28 October 1981 and accordingly levied a duty of 6.04 per cent. With these findings of fact, the panel reached a conclusion contrary to the position of Brazil upon the following reason, among others: ... [T]he approach taken in this ease was consistent with US obligations under the Code as derived from Article VI:6(a) of the General Agreement because Brazil’s request could have been made on 1 January 1980 and, in the case of a negative injury determination, the countervailing duty order could have been revoked as of the date of the request. Brazil chose not to invoke its rights on 1 January 1980 but submitted its request at a later date. The Panel recalled its views ... that if the signatory subject to the pre-existing countervailing duty decision were to choose not to invoke its right as of 1 January 1980 but made its request at a later date, there was nothing in Article VI or in its subsequent interpretation in the Code to imply that any earlier date than the date of the request would be relevant for an injury determination and possible revocation of countervailing duties. After this report had been circulated within GATT, counsel for the defendant moved this court to vacate plaintiffs stay on the ground that Brazil had asked the Committee to postpone its consideration of the report until the next semi-annual meeting. Because the GATT acts by consensus, any country’s delegation, dissatisfied with a panel report, can block the adoption of the panel report by merely raising an objection to the adoption of the report or requesting further consideration, a procedure that is not uncommon when a panel decision is unfavorable to a particular country. Unless and until the Committee adopts a panel report, the panel report does not become public and any Committee action on the report is effectively prevented. Because the panel has issued its findings, there is no reason to continue the stay of proceedings in this ease pending formal Committee action. In opposition, the plaintiff reported that Brazil had “raised substantive objections to the panel report which were serious enough to cause four governments other than Brazil to express their concern and reservations that the report is flawed or to ask for additional time to consider the report before the Committee makes a final decision.” The plaintiff also reported that Brazil had “followed up its objections by initiating action under Article XXIII of the GATT contending that the actions by the United States have nullified and impaired benefits owed to Brazil by the United States.” Although the foregoing panel report apparently has never been formally adopted, the motion to dissolve the stay was not granted. B That is, this action remained in abeyance while its proponent(s) pursued the article XXIII avenue. In particular, another three-member panel convened, this one under the aegis of the GATT Council of Representatives, to consider “an alleged denial by the United States of most-favoured-nation treatment under Article I in the implementation of its Article VI obligations with respect to a countervailing duty order on non-rubber footwear from Brazil”. After reviewing and considering the factual aspects, the scope of its proceeding, and the arguments of the parties and also of India as to application of different countervailing-duty laws, like products, evolution of those law(s) in the United States, dutiable versus duty-free products, and the timing of Brazil’s request for an injury review, the panel found that the United States failed to grant, pursuant to Section 104(b) of the Trade Agreements Act of 1979, to products originating in contracting parties signatories to the Subsidies Agreement the advantage accorded in Section 331 of the Trade Act of 1974 to like products originating in countries beneficiaries of the United States GSP programme, that advantage being the automatic backdating of the revocation of countervailing duty orders issued without an injury determination to the date on which the United States assumed the obligation to provide an injury determination under Article VT:6(a). Accordingly, the Panel concludes that the United States acted inconsistently with Article 1:1 of the General Agreement. GATT Doc. DS18/R, para. 7.2. In reaching this conclusion, the panel noted that Brazil had requested a general ruling and not that the panel make a specific recommendation to the Council. See id., para. 7.1. According to the report of the panel, Brazil had indicated at the outset that it “did not intend to relitigate the issues considered by the Subsidies Agreement panel.” Id., para. 2.3. Moreover, “it did not consider that any one of the three different countervailing duty laws of the United States implementing United States obligations under Article VI, standing alone, violated Article 1:1.” Id., para. 4.3. Instead, Brazil had contended that the United States had failed to implement the injury determination requirement of Article VI in a consistent manner. In the application of its Article VI obligations, the United States treated imports from Brazil less favourably than imports from other contracting parties — specifically, fasteners from India, steel wire rod from Trinidad and Tobago, and industrial lime and automotive glass from Mexico — and consequently, the United States denied Brazil the unconditional benefits guaranteed under Article 1:1. In the case involving non-rubber footwear from Brazil, the United States had backdated the effect of its negative injury determination to the date of Brazil’s request for an injury review, whereas in the cases involving India, Trinidad and Tobago, and Mexico, the United States had backdated the effect of its negative injury determinations to the date on which the United States obligations under Article VI entered into force, regardless of the date on which or by whom injury reviews had been requested. Id., para. 4.4. The United States had argued in response that “the central requirement of Article I was that most-favoured-nation treatment be accorded to ‘like products’.” Id., para. 4.9. It had pointed out that Brazil had omitted to mention that the United States had conducted injury review investigations of outstanding countervailing duty orders on non-rubber footwear from India and Spain at the same time as, and applying identical procedures to those used in[,] the Brazil review. Id, para. 4.15. ... [N]ot only non-rubber footwear but all dutiable products from Subsidies Agreement signatories with outstanding countervailing duty orders were treated in an identical fashion under the transitional procedure of Section 104(b) of the Trade Agreements Act of 1979. Id, para. 4.16. Whereupon Brazil countered that its footwear and footwear from India and Spain were treated the same not because they were footwear. They were treated the same because, for reasons of United States domestic law, they were processed under the same countervailing duty law of the United States — Section 104 of the 1979 Act, applicable to injury reviews of pre-existing countervailing duty orders concerning dutiable products from Subsidies Agreement signatories. Id, para. 4.26. Further: ... [T]he fact that footwear from India and Spain may have been discriminated against as well as footwear from Brazil did not change the fact that Brazil experienced discrimination. Id, para. 4.27. Also, Brazil considered that the real distinction to be made was not that between footwear and everything else, but between dutiable and duty-free products. Perhaps this distinction would be valid in situations in which dutiable and duty-free were permanent, fixed categories. But that was not the case here. Products moved from dutiable to duty-free status, and from duty-free to dutiable status, within the United States for a wide variety of reasons. Id, para. 4.28. After considering these and the other arguments, the panel determined that “the automatic backdating of the effect of revocation of a pre-existing countervailing duty order, without the necessity of the country subject to the order making a request for an injury review, is properly considered to be an advantage within the meaning of Article 1:1.” Id, para. 6.9. The panel also noted that, even though the United States levied countervailing duties on nonrubber footwear from Brazil, India and Spain without discriminating on the basis of the country of origin, the CONTRACTING PARTIES had decided in previous cases that legislation mandatorily requiring the executive authority to impose a measure inconsistent with the General Agreement was inconsistent with that Agreement as such, whether or not an occasion for the actual application of the legislation had arisen. Id, para. 6.13, citing United States — Taxes on Petroleum and Certain Imported Substances, adopted 17 June 1987, GATT BISD 34S/136, 160; European Economic Community-Regulation on Imports of Parts and Components, adopted 16 May 1990, GATT BISD 37S/132, 198. The minutes of a meeting of the GATT Council on June 19, 1992 state that Brazil reiterated its request that the United States agree to adoption of the panel report and also that the U.S. representative said that although the United States considered the Panel’s analysis and conclusions to be seriously flawed, it would agree to adoption of the report out of respect for the dispute settlement process. The United States noted, however, that Brazil had repeatedly blocked adoption of a panel report on the same issue (SCM/94) in the Subsidies Code Committee, which had concluded that the United States had acted consistently with the Code in declining to revoke a countervailing duty order on non-rubber footwear imports from Brazil as of the date of Brazil’s accession to the Code. While the United States would be justified in refusing to allow adoption of the Panel report at hand (DS18/R) until Brazil had allowed adoption of the report under the Code, it would not do so. However, it fully expected, and would insist, that Brazil follow its example and allow the report under the Code to be adopted. The United States also wished to emphasize its disagreement with two aspects of the report. First, the Panel had ignored the fact that the Proposal of Provisional Application (PPA) relieved the United States from the obligation to provide any injury test for dutiable merchandise, including footwear, subject to countervailing duty orders. Second, the Panel had erroneously concluded that the United States had violated Article I. The m.f.n. clause expressly applied to “like products”, and the United States had accorded identical treatment to imports of non-rubber footwear — the “like product” — from all countries. For these reasons, it believed that the Panel had erred in concluding that the United States had acted inconsistently with the General Agreement. Nevertheless, the United States agreed to the adoption of this report, which had expressly provided only a general ruling and had not made any specific recommendation. GATT Doc. C/M7257, p. 8 (10 July 1992) (footnotes omitted). Those minutes also reflect a related plea by Brazil that the United States take the necessary steps to bring itself into compliance with the Panel’s conclusion. Brazil therefore expected that the mental reservations expressed by the United States would not be to the detriment of implementation. As Brazil had repeatedly stated, this dispute was no academic matter, and had been brought to the Council as a result of its significant impact on Brazil’s export interests. In Brazil’s understanding, adoption of a panel report implied compliance with it, and it reiterated its expectation that the United States would take the necessary steps to implement the Panel’s conclusion and bring itself into GATT compliance. Id. at 8-9. C With the proceedings in Geneva at an end, the parties have returned here for final disposition of this action. In its concomitant order dissolving the stay, the court afforded the parties an opportunity to supplement their original papers in support of and opposition to the motions of the plaintiffs for judgment on the agency record or summary judgment. Plaintiff Special Commodity Group of Non-Rubber Footwear from Brazil rests on those papers, whereas plaintiff Footwear has filed additional briefing, arguing, among other points, (1) that the ITA violated section 104(b) of the Trade Agreements Act of 1979, 19 U.S.C.A. § 1671 note (1980), in assessing countervailing duties on 1980 entries of Brazilian non-rubber footwear; (2) that, if that section permitted the agency to collect countervailing duties on those entries, the ITA acted illegally in attempting to collect such duties in excess of the one-percent deposit posted thereon; and (3) that, if collection of such excess duties was lawful, the matter should be remanded to the agency for redetermination of the net subsidy and for foreclosure of assessment of compound interest for the period prior to November 1984. On its part, the defendant lists some seven issues for the court’s consideration, namely, (1) whether the ITA’s determination to assess countervailing duties on non-rubber footwear from Brazil entered prior to October 29, 1981 and not to refund the estimated duties deposited before then is subject to judicial review in the absence of a timely challenge thereof; (2) whether, to the extent there is such jurisdiction, the agency properly interpreted 19 U.S.C. § 1675 and section 104(b) of the Trade Agreements Act of 1979 as requiring the assessment of countervailing duties for the period preceding receipt of Brazil’s request for an injury determination; (3) whether any international obligations of the United States preclude the ITA from assessing countervailing duties for the period in question; (4) whether the court has jurisdiction to decide if the merchandise should be deemed liquidated by operation of 19 U.S.C. § 1504(a) at the estimated countervailing-duty rates because of an alleged failure of the U.S. Customs Service to give notice of suspension of liquidation to the individual importers; (5) whether the defendant is barred by the doctrine of laches from collecting countervailing duties based upon the agency determination underlying this action; (6) whether the ITA was precluded from changing its methodology for calculation of the appropriate benchmark rate for Brazilian export financing programs; and (7) whether the question of the rate of interest which is payable upon underpayment of estimated countervailing duties is properly before the court at this time. Initially, after intervention as a party defendant, Footwear Industries of America, Inc. (“FIA”) submitted a memorandum in opposition to the motions by the plaintiffs. However, that trade association’s counsel report that “circumstances in the industry have changed dramatically” since then, that it has “urged the U.S. government ... to settle the pending litigation by retaining the estimated duties already deposited and waiving the collection of any additional duties as well as the interest on the subject entries” and that “it no longer supports the position of the United States to the extent it is inconsistent with the settlement proposal proffered to the government.” In the absence of compromise among the parties, this court remains obligated to adjudicate the foregoing issues. Cf. Gilmore Steel Corp. v. United States, 11 CIT 684, 691, 672 F.Supp. 1459, 1464 (1987) (“§ 1675 contains no reference to industry support as a precondition for obtaining review”), rev’d on another ground, 862 F.2d 1541 (Fed.Cir. 1988). II As stated above, the plaintiffs have pleaded jurisdiction pursuant to 19 U.S.C. § 1516a(a)(2) and 28 U.S.C. § 1581(c), which the defendant challenges as lacking. It argues that the plaintiffs are, in effect, contesting the ITA’s earlier determination sub nom. Non-Rubber Footwear From Brazil; Revocation of Countervailing Duty Order, 48 Fed.Reg. 28,310 (June 21, 1983), judicial review of which should have been sought within 30 days thereof under section 1516a(a)(2), citing Belton Industries, Inc. v. United States, 16 CIT 322 (1992), aff'd in part, rev’d in part, 6 F.3d 756 (Fed.Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 925, 127 L.Ed.2d 218 (1994); otherwise, the revocation decision became final and conclusive, citing Royal Business Machines, Inc. v. United States, 669 F.2d 692 (CCPA 1982). Whether or not the determination to revoke eould have been contested at the time of its publication as the defendant suggests, plaintiff Footwear states that it did not appeal then because it agreed with the decision to revoke the countervailing duty order. Plaintiff did not agree that Commerce had the authority to retain estimated countervailing duty deposits and to collect increased countervailing duties on the pre-October 29, 1981 entries. But these issues were first addressed by plaintiff and other interested parties during the course of the administrative review; more importantly, they were first decided in the final determination in that review from which this appeal is taken. Until the final determination was made, the issues decided in that final determination were not ripe for review, and could not have been appealed to this court. Indeed, the other named plaintiff herein, the Special Commodity Group on Non-Rubber Footwear from Brazal, had sought judicial intervention earlier, before publication of that final determination after administrative review pursuant to 19 U.S.C. § 1675, only to be dismissed. In reaching that conclusion in Special Commodity Group v. Baldridge, 6 CIT 264, 269, 575 F.Supp. 1288, 1293 (1983), the court pointed out, among other things, that the ITA had not completed the review of the 1980 entries and that where administrative proceedings are in progress, and the agency has not adopted a final decision, the matter is generally not ripe for judicial review. See Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515-16, 18 L.Ed.2d 681 (1967); Krupp Stahl AG v. United States, [4 C.I.T. 244,] 553 F.Supp. 394 (1982). The facts in the instant case indicate that Commerce has not completed the administrative review for the 1980 entries and the possibility exists that the final agency determination may indicate that there were no subsidies, in which event the plaintiff would presumably find no reason to complain. In the interest of efficient agency action, interlocutory determinations should not be considered when final agency decisions are judicially reviewable. Although denying the Special Commodity Group a writ of mandamus and a preliminary injunction, the court concluded that it was possessed of subject-matter jurisdiction to grant such extraordinary relief, albeit under 28 U.S.C. § 1581(i). The defendant also attempts to rely on Cementos Guadalajara, S.A. v. United States, 12 CIT 307, 686 F.Supp. 335 (1988), aff'd, 879 F.2d 847 (Fed.Cir.1989), cert. denied, 494 U.S. 1016, 110 S.Ct. 1318, 108 L.Ed.2d 494 (1990), to the effect that the court “agreed that it did not possess jurisdiction to review arguments concerning Commerce’s failure to request and require an injury determination before issuing the underlying CVD order”. Defendant’s Supplemental Memorandum, p. 24. This is true — in that case, but not in this one, which does not contest the 1974 order. Rather, after publication of a final determination pursuant to section 1675, the plaintiffs stand squarely upon 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28 U.S.C. § 1581(c), and defendant’s claim that this court lacks subject-matter jurisdiction must therefore be dismissed. III Of course, the word jurisdiction is a “term of large and comprehensive import” signifying the legal right by which courts exercise their authority. See, e.g., Mitsuboshi Belting Limited v. United States, 17 CIT -, -, Slip Op. 93-205, at 5-7, 1993 WL 437388 (Oct. 22, 1993), and cases cited therein. At a minimum then, the defendant is contending that the court is without authority to give effect to the 1991 GATT panel decision described in part I-B of this opinion. To recite counsel’s most-recent statement: ... [T]he Government is arguing that the agency’s interpretation of our countervailing duty law should prevail because it is in accordance with the statutory language, the statutory language prevails over any provision of the GATT, and, in interpreting our domestic law, the agency charged with the duty of implementing the law is entitled to deference rather than a GATT panel’s opinion of our domestic law. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 [104 S.Ct. 2778, 81 L.Ed.2d 694] (1984); Suramerica de Aleaciones Laminadas, C.A. v. United States, 966 F.2d 660 (Fed.Cir.1992); 19 U.S.C. § 2504(a) (stating that no provision of any trade agreement, nor the application of any such provision to any person or circumstance, which is in conflict with any statute of the United States shall be given effect under the laws of the United States); S.Rep. No. 249, 96th Cong., 1st Sess. 36 (1979) (explaining that the intent of section 2504(a) is to preclude any attempt to introduce into U.S. law new meanings which are inconsistent with U.S. legislation and which were never intended by Congress). The letter articulating this position is part of ongoing discussion between the parties as to the significance herein of Mississippi Poultry Ass’n, Inc. v. Madigan, 992 F.2d 1359 (5th Cir.1993), reh’g en banc (Jan. 18, 1994). The reported majority opinion in that case quotes the “strongly instructive authority” of the Court of Appeals for the Federal Circuit in Suramerica de Aleaciones Laminadas, C.A. v. United States, 966 F.2d 660, 667 (1992), to the effect that “GATT does not trump domestic legislation”. See 992 F.2d at 1365-66. The plaintiff claims not to disagree with this proposition. It does disagree, however, that the Chevron doctrine precludes application of the rule established in the Charming Betsy — i.e., that ambiguous statutory provisions should be construed, where possible, to be consistent with international obligations of the United States. In fact, in the only reported case discussing a potential conflict between the interpretive principles established in Chevron and Charming Betsy, the Supreme Court ruled that Chevron must yield. Defendant’s letter ignores this legal authority in arguing for broad deference under Chevron. A Brazil is an original signatory of the Subsidies Code, which was approved by the U.S. Congress in its Trade Agreements Act of 1979. See 19 U.S.C. § 2503(a) and (c)(5). In accordance with paragraph (b) of that section, Brazil has been a “country under the Agreement” within the meaning of 19 U.S.C. § 1671(b) since then, and, as such, in a letter dated October 23, 1981 it formally requested an injury determination for its footwear covered by the 1974 countervailing-duty order. As set forth in detail in the first GATT panel decision, supra, on June 2, 1983 the ITC published its negative determination of material injury sub nom. Import Investigation of Certain Nonrubber Footwear From Brazil et al., 48 Fed.Reg. 24,796, pointing out that it reported this determination to the ITA. That agency thereupon published its notice of revocation of the countervailing-duty order as to all entries made on or after October 29, 1981, the day after ITC receipt of Brazil’s letter request. 48 Fed.Reg. 28,310 (June 21, 1983). The notice concluded: The ITC’s decision and this revocation do not affect shipments of the merchandise entered on or before October 28, 1981. These shipments are subject to the administrative review procedures set forth in section 751 of the Tariff Act of 1930. This revocation and notice are in accordance with section 104(b)(4)(B) of the TAA (19 U.S.C. 1671 note.) The section referred to, 104(b)(4)(B), provides: NEGATIVE DETERMINATION.— Upon being notified of a negative determination under paragraph (2) by the Commission, the administering authority shall revoke the countervailing duty order then in effect, publish notice thereof in the Federal Register, and refund, without payment of interest, any estimated countervailing duties collected during the period of suspension of liquidation. Whereupon the plaintiff contends that this language from the 1979 act required the ITA to revoke the order as of the date of the suspension of liquidation, January 4, 1980, and that, even if this statute were not clear, it should be construed so as to be consistent with the international obligations of the United States. Here, that would mean conforming enforcement of its countervailing-duty law to the second GATT panel decision, supra. In addition, the plaintiff argues that the statutory language requires the ITA to refund all of the estimated countervailing duties deposited as of January 4, 1980. The defendant counters that suspension of liquidation follows a request for an injury determination under section 104(b)(3) of the 1979 act and that its transitional rules therefore require refund of. estimated countervailing duties deposited only as of the date Brazil’s request for an injury test was received. According to Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984), the initial inquiry is whether Congress has directly spoken to the precise point at issue. “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. at 2781 (footnote omitted). If on the other hand an enactment is ambiguous, a court must determine whether an administrative interpretation is reasonable. Id. at 844-45, 104 S.Ct. at 2782-83. If that determination is in the affirmative, the court must “defer, even if it would have come to quite a different view if left to its own devices.” Continental Air Lines v. Dep’t of Transportation, 843 F.2d 1444, 1449 (D.C.Cir.1988). The court need not conclude that the agency’s construction is the only reasonable one, or that it would have reached that result had the question arisen before it in the first instance. Zenith Radio Corp. v. United States, 437 U.S. 443, 450, 98 S.Ct. 2441, 2445, 57 L.Ed.2d 337 (1978), citing Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). In support of its position, the defendant refers to the legislative history found in the U.S. Senate Finance Committee’s discussion of section 104(b) viz.: Whenever the Commission receives a request for review under section 104(b), it would promptly notify the administering authority which would suspend the liquidation of entries of the merchandise covered by the order which are made on or after the date of receipt of the Commission’s notification____ If the Commission’s determination with respect to material injury under section 104(b) is affirmative, the administering authority would liquidate entries of merchandise the liquidation of which has been suspended during the period of the Commission’s investigation and impose countervailing duties in the amount of the estimated duties required to be deposited____ If the Commission’s determination with respect to material injury upon review is negative, then the administering authority would revoke the countervailing duty order, publish notice of that action in the Federal Register, and refund, without payment of interest, any estimated countervailing duties collected during the period of suspension of liquidation. S.Rep. No. 249, 96th Cong., 1st Sess. 105-06 (1979), 1979 reprinted in U.S.Code Cong. & Ad. News 381, 491, 492. In this court’s opinion, the foregoing does not help to clarify the situation. Rather, it appears that Congress did not anticipate the particular circumstances of the entries at issue herein. That is, taking note that on December 7, 1979 the government of Brazil had announced that export payments in the form of IPI credits would be eliminated immediately instead of over a four-year period, the U.S. Treasury, in one of its last ministerial acts before the transfer of administering authority to the ITA, published notice of suspension of their liquidation, effective as of January 4, 1980. See T.D. 80-12, 45 Fed. Reg. 1,014 (Jan. 4,1980). Hence, suspension was ordered before Brazil requested an injury test. No doubt Congress anticipated that countries with products already subject to existing countervailing-duty orders under the 1930 Tariff Act would request injury tests, but it seems not to have anticipated (and therefore to have provided in the 1979 act or its transitional rules) that suspension of liquidation would be ordered by the government before receipt of such requests. Nonetheless, the defendant takes the position that, if Congress had, in fact, intended that, in the case of a subsequent negative Commission determination, all entries whose liquidation may have been suspended ... be liquidated without regard to countervailing duties ..., it would have ordered Commerce to “refund ... all estimated countervailing duties collected upon entries which remain unliquidated.” Instead, Congress specifically referred to “the period of suspension” ... thereby clearly expressing its intent that estimated countervailing duties be refunded only if they were collected during the suspension period which Congress has specified in section 104(b)(3). This contention has some merit. Section 104(c) provides that countervailing-duty orders like the one at bar remain in effect, unless and until notification of a timely negative determination by the ITC of material injury pursuant to subsection (b). On the other hand, that subsection (b) also provides for refund without qualification of “any estimated countervailing duties collected during the period of suspension of liquidation.” And in this instance, that suspension was ordained by the defendant — in the aftermath of Brazil’s commitment to cease that which had been found countervailable. The order at bar was issued under section 303 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1303, which provides for imposition of countervailing duties on subsidized dutiable goods without an injury determination, to wit: ... [Wjhenever any country ... shall pay or bestow, directly or indirectly, any bounty or grant upon the manufacture or production or export of any article or merchandise manufactured or produced in such country ... and such article or merchandise is dutiable under the provisions of this Act, then upon the importation of any such article or merchandise into the United States ... there shall be levied and paid ... in addition to the duties otherwise imposed by this Act, an additional duty equal to the net amount of such bounty or grant, however the same be paid or bestowed. When the United States acceded to GATT in 1947, this section was not in harmony with article VI:6(a) of the General Agreement, which requires that the effect of a subsidy be to cause, or threaten to cause, material injury to an established domestic industry, or to retard materially the establishment of one. Hence, section 303 was “grandfathered” by the GATT Protocol of Provisional Application requiring that the parties thereto undertake to apply article VI “to the fullest extent not inconsistent with existing legislation.” By the time at issue herein, section 104 of the 1979 act provided for review by the ITC of countervailing-duty orders imposed under section 303 without injury determinations before (and still in effect on) January 1, 1980. But a country under the Agreement like Brazil had to request an injury determination within three years of the effective date of the act. If the standard of ensuing judicial review of the administrative reaction to Brazil’s timely request in the absence of clearcut congressional circumscription is reasonableness, this court is unable to conclude that the position of the ITA is unreasonable, that is, that levy of countervailing duties on entries from January 4 to December 31, 1980 without an affirmative injury determination is violative of its governing statutory provisions. B The question remains, however, whether levy of those duties complies with U.S. obligations under international law. As the plaintiff correctly points out, the Supreme Court has recently stated that its Chevron rule may yield to the Charming Betsy doctrine: ... [Statutory interpretation [by an agency] would normally be entitled to deference unless that construction were clearly contrary to the intent of Congress____ Another rule of statutory construction, however, is pertinent here: where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress. [NLRB v.] Catholic Bishop [of Chicago, 440 U.S. 490,] 499-501, 504, [99 S.Ct. 1313, 1318-19, 1320-21, 59 L.Ed.2d 533] [1979]. This cardinal principle has its roots in Chief Justice Marshall’s opinion for the Court in Murray v. The Charming Betsy, 2 Cranch 64, 118 [2 L.Ed. 208] (1804), and has for so long been applied by this Court that it is beyond debate. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 574-75, 108 S.Ct. 1392, 1397 (1988). Obligations of this country within the community of nations “must be governed by treaties, international understandings and compacts, and the principles of international law.” United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318, 57 S.Ct. 216, 220, 81 L.Ed. 255 (1936). In that case, the Court distinguished domestic and foreign affairs. As to the former, the national government has specifically enumerated powers, as well as those necessary and proper to effectuate them, which the Constitution deemed “desirable to vest in the federal government, leaving those not included in the enumeration still in the states.” Id. at 316, 57 S.Ct. at 219, citing Carter v. Carter Coal Co., 298 U.S. 238, 294, 56 S.Ct. 855, 865-66, 80 L.Ed. 1160 (1936). Regarding the latter, as a member of the family of nations, the right and power of the United States in that field are equal to the right and power of the other members of the international family. Otherwise, the United States is not completely sovereign. Id. at 318, 57 S.Ct. at 220. Commensurate with that right and power is adherence to international law, as established by norms and principles which nation states have generally recognized. Ergo, this court should attempt to resolve the disagreement at bar so as to avoid any violation, real or apparent, of that obligation. In particular, since the time of creation of this country, an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains, and, consequently can never be construed to violate neutral rights, or to affect neutral commerce, further than is warranted by the law of nations as understood in this country. Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). That understanding can be found, for example, in the Restatement (Third) of the Foreign Relations Law of the United States, section 102 of which states: (1) A rule of international law is one that has been accepted as such by the international community of states (a) in the form of customary law; (b) by international agreement; or (e) by derivation from general principles common to the major legal systems of the world. (2) Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation. (3) International agreements create law for the states parties thereto and may lead to the creation of customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted. (4) General principles common to the major legal systems, even if not incorporated or reflected in customary law or international agreement, may be invoked as supplementary rules of international law where appropriate. Article 38(d) of the Statute of the International Court of Justice refers also to judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. In this regard, a former judge of the European Court of Justice is reported to have called upon the world of international trade recently to recognize that GATT panel reports come out of not a legislative but a contentious process. As such they partake of the legal authority of res judicata. In relation to the parties to the dispute, why should res judicata not to be carried out before national courts? In The Paquete Habana, 175 U.S. 677, 700, 20 S.Ct. 290, 299, 44 L.Ed. 320 (1900), our Supreme Court reiterated: International law is a part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. The guiding principle for the matter at bar is pacta sunt servanda, which section 321 of the Restatement (Third) translates to mean “[ejvery international agreement in force is binding upon the parties to it and must be performed by them in good faith.” This principle lies at the core of the law of international agreements and is perhaps the most important principle of international law. It includes the implication that international obligations survive restrictions imposed by domestic law. Hence, the general assumption that Congress does not intend to repudiate an international obligation of the United States____ Therefore, when an act of Congress and an international agreement ... relate to the same subject, the courts, regulatory agencies, and the Executive Branch will endeavor to construe them so as to give effect to both. According to the as yet only published opinion(s) of the Court of Appeals for the Fifth Circuit in Mississippi Poultry Ass’n, Inc. v. Madigan, supra, the defendant U.S. Department of Agriculture and its counsel from the Department of Justice in Washington have sought to rely on the country’s international obligations, in particular, GATT, the Uruguay Round of Multilateral Trade Negotiations in furtherance thereof, and even the United States-Canada Free Trade Agreement. See 992 F.2d at 1365. Here, as quoted above, government counsel may be on a somewhat different slant, namely, the ITA is “entitled to deference rather than a GATT panel’s opinion of our domestic law.” Of course, the best perspective is that both are entitled to that degree of respect which them reasonings compel. In this action, as the defendant is well aware, the second panel rendered a general ruling and did not make any specific recommendation. That ruling emanates from GATT itself, which the Restatement (Third) recognizes as “an international agreement, but its status as international law cannot be stated simply. Like other agreements, it is binding upon states that are parties to it”. ... Despite some attempts by Congress to distance itself from the Agreement, its status as a commitment of the United States is not in doubt, and courts in the United States assume its binding character GATT, including its clause regarding mostfavoured nations, became part of U.S. law via executive order in accordance with congressional delegation of power to the President. See Reciprocal Trade Agreements Act, as amended and extended, 59 Stat. 410 (1945). And it is well established that an international agreement or treaty which operates without the aid of legislation is “equivalent to an act of Congress and, while in force, constitutes a part of the supreme law of the land.” Chew Heong v. United States, 112 U.S. 536, 540, 5 S.Ct. 255, 256, 28 L.Ed. 770 (1884), citing Foster v. Neilson, 27 (2 Pet.) U.S. 253, 314, 7 L.Ed. 415 (1829). See also U.S. Const. art. VI. Nevertheless, observers report that GATT contracting parties do not automatically accept panel decisions as binding. For example, the European Court of Justice has “refused to grant direct application to the GATT treaty”, and the Japanese Supreme Court has affirmed lower court rulings which “concluded that the GATT did not apply”. Jackson, Status of Treaties in Domestic Legal Systems: A Policy Analysis, 86 Am.J.Int’l L. 310, 333-34 (1992). Another commentator, having examined the dispute settlement system as of 1989, concluded that in eight cases “it can be maintained that the rulings of the Panels have led to an opening-up of markets”, “four cases could also be looked upon as achievements for the dispute settlement procedure”, in four other cases “the Panel Reports have been adopted but the follow-up has been linked to the outcome of the Uruguay Round negotiations”, and “three Panel Reports have not yet been adopted”. Nordgren, The GATT Panels During the Uruguay Round — A Joker in the Negotiating Game, 25-2 J. World Trade 57, 67-68 (1991). That observer also notes that, in the ease of one report, the United States ... expressed its opinion that a panel might suggest a particular remedy, for example that the losing party should bring its measures into conformity with its GATT obligations, but not to mandate a particular remedy as the reimbursement of the duties paid. The European Community has supported the American position. Id. at 71. Professor Jackson has concluded that a court would find great difficulty in directly applying the GATT, with its many elaborate constraints on national government actions in international trade, in circumstances where those GATT norms would also have a higher status than even later-in-time legislation or other acts. 86 Am. J.Int’l L. at 334. Other commentators speculate that, when a panel report is adopted, the United States is obligated “either to: (1) come into conformity with its GATT obligations ...; (2) provide compensatory trade benefits to adversely affected GATT trading partners ...; or (3) suffer the loss of trade concessions made by the adversely affected GATT signatories”. Holmer & Bello, U.S. Trade Law and Policy Series No. 22: Trade and the Environment: A Snapshot from Tuna/Dolphins to the NAFTA and Beyond, 27 Int’l Law. 169, 173 n. 21 (1993). They also have noted, however, that, under the existing system of GATT dispute settlement, even if a report is adopted by the GATT Council, the complaining party has no assurance that the offending party will either come into conformity with its GATT obligations ... or suffer the consequences____ Bello & Holmer, U.S. Trade Law and Policy Series No. 21: GATT Dispute Settlement Agreement: Internationalization or Elimination of Section 301?, 26 Int’l Law. 795, 796 (1992). Such views are based at least in part on the language of the dispute-resolution provisions in the General Agreement and in the Subsidies Code which have not authorized either the GATT Council or the Subsidies Committee to order a contracting party to nullify an offending approach or to refund duties. This approach, however, is in focus in the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, GATT Doe. MTN/FA (15 Dec. 1993) (“Final Act”), annexed to which is an Understanding on Rules and Procedures Governing the Settlement of Disputes under GATT articles XXII and XXIII, GATT Doc. MTN/FA II-A2 (“Understanding”). It provides that cessation of measures found to be inconsistent with the General Agreement be the preferred solution (other than settlement) to resolving disputes; that, where a measure is found to be inconsistent with that agreement, a panel or standing appellate body recommend that the measure be brought into conformity with it; that a Dispute Settlement Body (“DSB”) keep track of the implementation of recommendations and rulings; and that compensation and suspension of concessions only be temporary measures until the issues raised are resolved or other solutions reached. The Understanding changes the procedure by which panel decisions will be brought to GATT members for disposition. As exemplified by the first panel decision herein, under existing procedure a contracting party has been able to block adoption of a panel report. Per the Understanding, panels will be established at a complaining party’s request. It also provides for appeal of their decisions to the standing appellate body. Panel reports will be automatically referred to the DSB for adoption, and shall be deemed adopted unless the DSB decides by consensus not to do so. See Understanding, part 16. Notably, however, this significant change is not accompanied by any provision that panel decisions, even though affirmed by the appellate body and adopted by the DSB, are binding on the parties. The contrast comes further into focus when the provisions of the General Agreement and of the Understanding are compared with chapter 19 of the North American Free Trade Agreement, which adopts the same chapter in the United States-Canada Free Trade Agreement and specifically provides that decisions of panels reviewing antidumping and countervailing-duty determinations of the three contracting governments are binding. See arts. 1904, paras. 9. Moreover, panels constituted under these agreement(s) are empowered to construe the law under which those kinds of duties were levied. C In the matter at bar, the Subsidies Committee panel reports that the government of Brazil stated that “the question of whether the United States procedures in section 104 of the TAA [of 1979] were inconsistent with the U.S. obligations under the Code was not the issue before the Panel.” GATT Doc. SCM/94, para. 3.1, p. 4. It had not asked that group to interpret U.S. law, nor did it seek a declaration that the U.S. government had misinterpreted that law. To the contrary, it left such interpretation to this country’s courts. The -Committee panel also pointed to the limited terms of reference under which it had convened and considered that “the act of suspension of liquidation was of no particular relevance under the provisions of the Code. This issue was a matter related to the conformity of US administrative procedures with US law.” Id., para. 4.12. The second panel made no recommendations as to measure(s) the U.S. government should take to be in compliance with its obligations under the General Agreement. Plaintiffs argument in this regard is not ... that GATT is superior to domestic law, or that GATT is part of domestic law, or that GATT conflicts with domestic law. It is none of these or any of the other strawmen advanced by defendant. It is an argument that a principle of statutory construction that is a fundamental part of U.S. law requires the U.S. statute at issue in this proceeding to be interpreted in conformity with the international obligations of the United States. Plaintiffs Supplemental Reply, p. 2. As stated at the outset, it is the court’s province and duty to say what the law is, although this responsibility does not traditionally extend to directing the United States as to how to proceed on the international stage. But see Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423, 84 S.Ct. 923, 937-38, 11 L.Ed.2d 804 (1964), wherein the Court held that, while “The conduct of the foreign relations of our Government is committed by the Constitution to the Executive and Legislative ... Departments,” ... it cannot of course be thought that “every ease or controversy which touches foreign relations lies beyond judicial cognizance”[,] quoting, respectively, Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 310, 62 L.Ed. 726 (1918), and Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 707, 7 L.Ed.2d 663 (1962). The framers of the Constitution distributed governing powers “naturally” so that those which are “legislative” in character are vested in the Congress, those which are “executive” vest in the President, “with apparently, also, a judicial foreign affairs power lodged in the federal courts.” Louis Henkin, Foreign Affairs and the Constitution 27 (1972). However, the “courts often decline to decide matters of foreign policy ... [and] will avoid the substantive issues by ruling, for example, that the case raises a political question or is otherwise not justiciable.” Carter, Int’l Economic Sanctions: Improving the Haphazard U.S. Legal Regime, 75 Calif.L.Rev. 1159