[Congressional Record Volume 150, Number 71 (Wednesday, May 19, 2004)]
[Senate]
[Page S5806]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. BAUCUS (for himself, Mr. Roberts, and Mr. Enzi):
  S. 2449. A bill to require congressional renewal of trade and travel 
restrictions with respect to Cuba; to the Committee on Finance.
  Mr. Baucus. Mr. President, I rise today in disbelief. Yesterday, I 
learned that a NAFTA panel reviewing the International Trade 
Commission's (ITC) analysis of material inquiry in Softwood Lumber from 
Canada has rejected an ITC request for more time to respond to a panel 
remand. This latest rejection of a reasonable request is simply one 
more circumstance in which this NAFTA panel has demonstrated its clear 
disregard of the limits of its own jurisdiction. And it provides 
further indication to me that the NAFTA Chapter 19 system is seriously 
off-track and is in need of fundamental reform.
  After reviewing the ITC's first remand determination, a 114 page long 
document that answered all of the Panel's remand issues, the Panel 
yesterday again remanded, and gave the ITC, in effect, seven business 
days to craft a new remand determination. The ITC filed a motion to 
extend, requesting a reasonable period of time to respond fully to the 
remand determination. The ITC further noted that it would consider 
reopening the record for new evidence and argument. In fact, the 
Federal Circuit just several months ago said that the Commission had 
the exclusive authority to open its record when it believed it should 
do so.
  Outrageously, the NAFTA panel refused to grant the ITC's request, 
again limiting the ITC to seven business days. Moreover, this runaway 
panel forbade the ITC from reopening the record, concluding that 
binding Federal Circuit precedent did not apply in the Panel.
  On top of all of this, I understand that U.S.T.R. suggested to the 
Canadians that there is the appearance of a conflict of interest for 
one of the panelists.
  The NAFTA rules could not be more clear: Chapter 19 Panels must act 
as would a U.S. court and must follow U.S. law. Panelists with a 
conflict of interest must step down. And the Federal Circuit has ruled, 
without reservation or qualification, that the question of whether 
compliance with a remand order requires the reopening of the record 
``is of course solely for the Commission itself to determine.'' Nippon 
Steel Corp. v. Int'l Trade Comm'n, 345 F.3d 1379, 1382 (Fed. Cir. 
2003). It is outrageous that a NAFTA panel would seek to avoid binding 
U.S. law.
  All I can say to this very sorry state of affairs is that I don't 
think Congress will long allow a dispute settlement panel to rewrite 
perfectly valid trade laws or preempt the powers delegated to the ITC, 
much less tolerate a dispute settlement system in which panels 
willfully and routinely breach the clear mandate of their authority 
that is itself the product of careful negotiation. This NAFTA panel has 
shown us that they cannot be trusted to respect the integrity of the 
NAFTA trading system. They have also shown us that the NAFTA panel 
system is broken and that it must be fixed.
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