[Federal Register Volume 59, Number 36 (Wednesday, February 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-3931]


[[Page Unknown]]

[Federal Register: February 23, 1994]


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Part IV





Department of Commerce





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International Trade Administration



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North American Free Trade Agreement: Rules of Procedure for Article 
1905 Special Committees; Notice
DEPARTMENT OF COMMERCE

International Trade Administration

 
North American Free Trade Agreement: Rules of Procedure for 
Article 1905 Special Committees

AGENCY: North American Free Trade Agreement, NAFTA Secretariat, United 
States Section, International Trade Administration, Department of 
Commerce.

ACTION: Rules of Procedure for NAFTA Article 1905 Special Committees.

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SUMMARY: Canada, Mexico, and the United States have negotiated the 
rules of procedure for Article 1905 Special Committees. These rules 
apply to special committee proceedings conducted pursuant to Article 
1905 of the Agreement, unless the involved Parties otherwise agree.

EFFECTIVE DATE: January 1, 1994, the date of the entry into force of 
the North American Free Trade Agreement (``Agreement''). These Rules of 
Procedure shall apply to all special committee proceedings commenced on 
or after the effective date.

FOR FURTHER INFORMATION CONTACT: Lisa B. Koteen, Senior Attorney, Stacy 
J. Ettinger, Attorney-Advisor, or Terrence J. McCartin, Attorney-
Advisor, Office of the Chief Counsel for Import Administration, room B-
099, U.S. Department of Commerce, 14th and Constitution Avenue, NW., 
Washington, DC 20230; telephone: (202) 482-0836, (202) 482-4618, or 
(202) 482-5031, respectively. For procedural matters involving cases 
under panel review, contact James R. Holbein, United States Secretary, 
NAFTA Secretariat, room 2061, U.S. Department of Commerce, 14th and 
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
5438; fax: (202) 482-0148.

SUPPLEMENTARY INFORMATION:

Background

    Chapter Nineteen of the North American Free Trade Agreement 
(``Agreement'') establishes a mechanism for replacing judicial review 
of final antidumping and countervailing duty determinations involving 
imports from Canada, Mexico, or the United States with review by 
independent binational panels. If requested, these panels will 
expeditiously review final determinations to determine whether they are 
consistent with the antidumping or countervailing duty law of the 
importing country.
    In instances in which one of the Parties to the Agreement alleges, 
pursuant to Article 1905.1 of the Agreement, that the application of 
another Party's domestic law (a) has prevented the establishment of a 
panel; (b) has prevented a panel from rendering a final decision; (c) 
has prevented the implementation of a panel's decision or denied it 
binding force and effect; or (d) has resulted in a failure to provide 
opportunity for proper review of a final determination by a panel or a 
court of competent jurisdiction, that Party may request the 
establishment of a special committee.
    Title IV of the North American Free Trade Agreement Implementation 
Act of 1993, Public Law No. 103-182, 107 Stat. 2057, amends United 
States law to implement Chapter Nineteen of the Agreement.
    The Article 1905 Special Committee Rules are intended to give 
effect to the special committee provisions of Chapter Nineteen of the 
Agreement by setting forth the procedures for commencing, conducting, 
and completing special committee proceedings. These rules are the 
result of negotiations among Canada, Mexico, and the United States in 
compliance with the terms of the Agreement.

North American Free Trade Agreement Rules of Procedure for Article 1905 
Special Committees

Contents

Rule

1. Short Title
2. Statement of General Intent
3. Interpretation
4. Operation of the Special Committee
11. Service of Documents
12. Written Submissions
18. Hearings
23. Language of Proceedings
25. Special Committee Deliberations
26. Reports
30. Reconvening of Special Committee
36. Completion of Special Committee Proceedings
38. Confidentiality
40. Ex Parte Contacts
41. Extension and Computation of Time
43. Responsibilities of the Responsible Secretary
45. Death or Incapacity

    The Parties,
    Having regard to Chapter Nineteen of the North American Free Trade 
Agreement between Canada, the United Mexican States and the United 
States of America;
    Acting pursuant to Article 1905.6 of the Agreement;
    Adopt the following Rules of Procedure, which shall come into force 
on the same day as the Agreement enters into force and from that day 
shall govern all special committee proceedings conducted pursuant to 
Article 1905 of the Agreement.

Short Title

    1. These rules may be cited as the Article 1905 Special Committee 
Rules.

Statement of General Intent

    2. These rules shall apply to special committee proceedings 
conducted pursuant to Article 1905 of the Agreement, unless the 
involved Parties otherwise agree. Where a procedural question arises 
that is not covered by these rules, a special committee may adopt an 
appropriate procedure that is not inconsistent with the Agreement. In 
the event of any inconsistency between the provisions of these rules 
and the Agreement, the Agreement shall prevail.

Interpretation

    3. In these rules,
    ``Agreement'' means the North American Free Trade Agreement;
    ``Complaining Party'' means a Party who requests, pursuant to 
Article 1905.2 of the Agreement, that a special committee be 
established;
    ``involved Secretariat'' means the responsible Secretariat or the 
section of the Secretariat located in the country of the other involved 
Party;
    ``legal holiday'' means
    (a) with respect to the Canadian Section of the Secretariat, every 
Saturday and Sunday, New Year's Day (January 1), Good Friday, Easter 
Monday, Victoria Day, Canada Day (July 1), Labour Day (first Monday in 
September), Thanksgiving Day (second Monday in October), Remembrance 
Day (November 11), Christmas Day (December 25), Boxing Day (December 
26), any other day fixed as a statutory holiday by the Government of 
Canada or by the province in which the section is located and any day 
on which the offices of the Canadian Section of the Secretariat are 
officially closed in whole or in part,
    (b) with respect to the Mexican Section of the Secretariat, every 
Saturday and Sunday, New Year's Day (January 1), Constitution Day 
(February 5), Benito Juarez's Birthday (March 21), Labor Day (May 1), 
Battle of Puebla (May 5), Independence Day (September 16), 
Congressional Opening Day (November 1), Revolution Day (November 20), 
Transmission of the Federal Executive Branch (every six years on 
December 1), Christmas Day (December 25), any day designated as a 
statutory holiday by the Federal Laws or, in the case of Ordinary 
Elections, by the Local Electoral Laws and any day on which the offices 
of the Mexican Section of the Secretariat are officially closed in 
whole or in part, and
    (c) with respect to the United States Section of the Secretariat, 
every Saturday and Sunday, New Year's Day (January 1), Martin Luther 
King's Birthday (third Monday in January), Presidents' Day (third 
Monday in February), Memorial Day (last Monday in May), Independence 
Day (July 4), Labor Day (first Monday in September), Columbus Day 
(second Monday in October), Veterans' Day (November 11), Thanksgiving 
Day (fourth Thursday in November), Christmas Day (December 25), any day 
designated as a holiday by the President or the Congress of the United 
States and any day on which the offices of the Government of the United 
States located in the District of Columbia or the offices of the United 
States Section of the Secretariat are officially closed in whole or in 
part;
    ``Mexico'' means the United Mexican States;
    ``official publication'' means
    (a) in the case of the Government of Canada, the Canada Gazette,
    (b) in the case of the Government of Mexico, the Diario Oficial de 
la Federacion, and
    (c) in the case of the Government of the United States, the Federal 
Register;
    ``Party'' means the Government of Canada, the Government of Mexico 
or the Government of the United States;
    ``Responding Party'' means the Party against whom an allegation is 
made under Article 1905.1 of the Agreement;
    ``responsible Secretariat'' means the section of the Secretariat of 
the Responding Party;
    ``responsible Secretary'' means the Secretary of the responsible 
Secretariat;
    ``Secretariat'' means the Secretariat established pursuant to 
Article 2002 of the Agreement;
    ``Secretary'' means the Secretary of the United States Section of 
the Secretariat, the Secretary of the Mexican Section of the 
Secretariat or the Secretary of the Canadian Section of the Secretariat 
and includes any person authorized to act on behalf of that Secretary;
    ``special committee'' means a special committee established 
pursuant to Article 1905 of the Agreement;
    ``United States'' means the United States of America.

Operation of the Special Committee

    4. (1) Subject to subrule (2), unless the involved Parties 
otherwise agree, special committee meetings shall take place at the 
offices of the responsible Secretariat or at such alternative location 
as the committee members may agree.
    (2) A special committee may conduct meetings or exchange 
information by any means, including by means of a telephone conference 
call or facsimile or computer transmission.
    5. The members of a special committee shall select from among 
themselves a chairperson, who shall preside over all meetings and 
hearings of the special committee.
    6. The chairperson of the special committee shall fix the date and 
time of its meetings in consultation with other special committee 
members and the responsible Secretary.
    7. All reports, findings, determinations and decisions of a special 
committee shall be made or issued by a majority vote of all members of 
the special committee.
    8. A special committee proceeding commences on the day on which a 
request for a special committee is filed with the responsible 
Secretariat and terminates on the day on which a notice of completion 
of the special committee proceeding is issued pursuant to rule 36.
    9. (1) A special committee may adopt internal procedures of its 
own, not inconsistent with these rules, for routine administrative 
matters.
    (2) A special committee may delegate to its chairperson the 
authority to make decisions regarding internal procedures or routine 
administrative matters.
    10. The terms of reference of a special committee shall be limited 
to
    (a) making a finding as to whether any allegations set out in 
Article 1905.1 of the Agreement made by the Complaining Party regarding 
the application of the Responding Party's domestic law are 
substantiated;
    (b) determining whether a suspension of benefits by the Complaining 
Party pursuant to Article 1905.8(b) of the Agreement is manifestly 
excessive; and
    (c) determining whether the Responding Party has corrected a 
problem with respect to which the special committee has made an 
affirmative finding.

Service of Documents

    11. A document to be filed by an involved Party with the 
responsible Secretariat shall
    (a) be served on the other involved Party by express courier, 
overnight mail or by any other means agreed upon by the involved 
Parties; and
    (b) when filed, be accompanied by a proof of service certifying 
that the document has been served on the other involved Party, 
indicating the manner, date and time of service.

Written Submissions

    12. All written submissions and responses filed with a responsible 
Secretariat shall be accompanied by four copies thereof.
    13. (1) A request for the establishment of a special committee 
under Article 1905.2 of the Agreement shall be made by filing the 
request with the responsible Secretariat.
    (2) On the filing of a request under subrule (1), the responsible 
Secretary and the other involved Secretary shall cause a notice of the 
filing of the request to be published in the official publications of 
the countries in which their sections of the Secretariat are located.
    14. The written initial submission of a Complaining Party shall be 
filed with the responsible Secretariat no later than 10 days after the 
date on which the last member of the special committee is appointed.
    15. A written response by the Responding Party shall be filed with 
the responsible Secretariat no later than 20 days after the filing of 
the initial submission of the Complaining Party.
    16. A special committee may allow each involved Party the 
opportunity to make an equal number of further written submissions, 
within such time as may be fixed by the special committee, having 
regard to the time limits fixed by Annex 1905.6 to Chapter Nineteen of 
the Agreement.
    17. The responsible Secretary shall forward to the other involved 
Secretary a copy of all documents filed with the responsible 
Secretariat and of all reports, findings, determinations and decisions 
issued by the special committee.

Hearings

    18. (1) At least one hearing shall be held before the special 
committee presents its initial report.
    (2) The date and time of hearings shall be fixed by the special 
committee in consultation with the involved Parties and the responsible 
Secretary.
    (3) A verbatim transcript shall be taken of all hearings.
    19. Unless the involved Parties otherwise agree, special committee 
hearings shall take place at the offices of the responsible 
Secretariat.
    20. (1) All special committee members must be present during 
hearings.
    (2) No later than five days before the date of a hearing, each 
involved Party shall deliver to the responsible Secretariat and to the 
other involved Party a list of the names of the persons who will 
present oral arguments at the hearing on behalf of that Party and of 
other representatives or advisers of the Party who will be attending 
the hearing.
    21. Oral proceedings shall be conducted in the following order, 
ensuring that each involved Party is given equal time:
    (a) the argument of the Complaining Party;
    (b) the argument of the Responding Party;
    (c) a reply of the Complaining Party; and
    (d) a counter-reply of the Responding Party.
    22. At the request of an involved Party or at the initiative of the 
special committee, with the agreement of both involved Parties and 
subject to such terms and conditions as both involved Parties may agree 
upon, the special committee may call upon any person to provide 
information concerning the matter in dispute.

Language of Proceedings

    23. Written and oral proceedings may be in either English, French 
or Spanish, or in any combination thereof.
    24. Unless the involved Parties otherwise agree, the reports, 
findings, determinations and decisions of a special committee shall be 
issued in an official language of the Responding Party and, if 
necessary, shall be promptly translated into an official language of 
the other involved Party.

Special Committee Deliberations

    25. (1) The deliberations of a special committee shall take place 
in private and remain confidential.
    (2) Only special committee members may take part in the 
deliberations of a special committee.
    (3) Staff of the involved Secretariats, assistants to the special 
committee members and any necessary support staff may be present during 
deliberations of a special committee by permission of the special 
committee.

Reports

    26. In accordance with paragraph (b) of Annex 1905.6 to Chapter 
Nineteen of the Agreement, a special committee shall prepare and 
present to the involved Parties an initial report, wherever 
practicable, within 60 days after the appointment of the last member of 
the special committee.
    27. The involved Parties may comment in writing or, at the request 
of the special committee, orally, on an initial report of a special 
committee within 14 days after the initial report is presented.
    28. An initial report of a special committee shall be kept 
confidential.
    29. (1) A special committee shall issue a final report, together 
with any separate opinions rendered by individual committee members, 
within 30 days after the presentation of its initial report.
    (2) Any separate opinions rendered by individual special committee 
members shall be anonymous.
    (3) On the issuance of a final report under subrule (1), the 
responsible Secretary shall immediately forward copies of the report to 
the involved Parties.
    (4) Unless the involved Parties otherwise agree,
    (a) within 10 days after the final report is forwarded to the 
involved Parties, the involved Secretaries shall cause a notice that a 
final report has been issued by a special committee to be published in 
the official publications of the involved Parties, indicating that 
copies of the report and of any separate opinions by individual members 
or written views of either involved Party are available to the public 
at the offices of the responsible Secretariat; and
    (b) the responsible Secretariat shall make available to the public 
copies of the final report of a special committee, together with any 
separate opinions by individual members and any written views that 
either involved Party may wish to be published.

Reconvening of Special Committee

    30. Where a special committee has made an affirmative finding with 
respect to grounds specified in Article 1905.1 of the Agreement, a 
Responding Party may request that the special committee be reconvened 
by filing a request with the responsible Secretariat
    (a) where the Responding Party is requesting that the special 
committee determine whether the Responding Party has corrected a 
problem with respect to which the special committee has made an 
affirmative finding, at any time after the affirmative finding was 
made; or
    (b) where the Responding Party is requesting that the special 
committee determine whether a suspension of benefits by the Complaining 
Party under Article 1905.8 of the Agreement is manifestly excessive, at 
any time after the suspension was made.
    31. (1) Where a request referred to in subrule 30(a) is filed 
before the fortieth day of the 60-day consultation period referred to 
in Article 1905.8 of the Agreement, the special committee shall 
endeavour to present a report containing its determination to the 
involved Parties before the sixtieth day of that period, and may for 
that purpose make such orders as to filing of written submissions and 
responses and the holding of a hearing as the special committee 
considers necessary under the circumstances.
    (2) Rules 32 to 34 apply with respect to requests referred to in 
subrule 30(a) that are filed on or after the fortieth day of the 60-day 
consultation period referred to in Article 1905.8 and to requests 
referred to in subrule 30(b).
    32. (1) At the time of filing a request pursuant to rule 30, the 
Responding Party shall file a written submission in support of the 
request.
    (2) A Complaining Party shall file a written response to a 
submission referred to in subrule (1) within 20 days after that 
submission is filed.
    33. (1) At the time of filing a request pursuant to rule 30 or a 
written response pursuant to subrule 32(2), an involved Party may 
request an opportunity to present oral argument in support of its 
request or response.
    (2) Where an involved Party requests an opportunity to present oral 
argument pursuant to subrule (1), the special committee may hold a 
hearing, at which both involved Parties shall be granted an equal 
opportunity to present oral argument.
    34. The special committee shall, within 45 days of the filing of a 
request pursuant to rule 30, present to the involved Parties a written 
report containing its determination pursuant to Article 1905.10 of the 
Agreement.
    35. Subrules 29 (2) to (4) apply, with such modifications as are 
necessary, to reports referred to in subrule 31(1) and rule 34.

Completion of Special Committee Proceedings

    36. (1) On completion of a special committee proceeding, as 
determined by the special committee in consultation with the involved 
Parties, the special committee shall request the responsible Secretary 
to issue a notice of completion of the proceeding.
    (2) A notice referred to in subrule (1) is effective the day after 
it is issued.
    (3) The responsible Secretary shall cause a notice issued under 
subrule (1) to be published in the official publications of the 
involved Parties.
    37. The members of a special committee are discharged from their 
duties on the day on which a notice of completion of the special 
committee proceeding is effective.

Confidentiality

    38. All written submissions to, and communications with, a special 
committee and all documents filed with the involved Secretariats shall 
be kept confidential.
    39. (1) All hearings of a special committee, and all transcripts 
thereof, shall be kept confidential.
    (2) It is the responsibility of each involved Party to ensure that 
the persons attending oral proceedings of a special committee on its 
behalf maintain the confidentiality of the proceedings.

Ex Parte Contacts

    40. (1) No special committee or member of a special committee shall 
meet or contact one involved Party in the absence of the other involved 
Party.
    (2) No special committee member shall discuss a matter before the 
special committee with the involved Parties in the absence of other 
special committee members.

Extension and Computation of Time

    41. A time period fixed by these rules may be extended with the 
consent of both involved Parties or by a decision of a special 
committee.
    42. (1) In computing any time period fixed in or under these rules, 
the day or date from which the time period begins to run shall be 
excluded and, subject to subrule (2), the last day of the time period 
shall be included.
    (2) Where the last day of a time period computed in accordance with 
subrule (1) falls on a legal holiday of the responsible Secretariat, 
that day and any other legal holidays of the responsible Secretariat 
immediately following that day shall be excluded from the computation.
    (3) In computing any time period of five days or less fixed in 
these rules or by a decision of a special committee, any legal holiday 
that falls within the time period shall be excluded from the 
computation.

Responsibilities of the Responsible Secretary

    43. The responsible Secretary shall provide administrative support 
for each special committee proceeding and shall make the arrangements 
necessary for the hearings and meetings of the special committee, 
including the provision of court reporters and, if required, 
interpreters to provide simultaneous translation.
    44. The responsible Secretary shall maintain a file for each 
special committee proceeding, comprised of the original or a copy of 
all documents filed, whether or not filed in accordance with these 
rules, in the special committee proceeding.

Death or Incapacity

    45. Where a special committee member is disqualified, dies or 
otherwise becomes unable to fulfil special committee duties,
    (a) special committee proceedings and computations of time shall be 
suspended, pending the appointment of a substitute member; and
    (b) where the disability, disqualification or death occurs after 
oral argument has begun, the chairperson may order that the matter be 
reheard, on such terms as are appropriate, after selection of a 
substitute member.

    Dated: February 10, 1994.
Timothy J. Hauser,
Deputy Under Secretary for International Trade.
[FR Doc. 94-3931 Filed 2-22-94; 8:45 am]
BILLING CODE 3510-GT-P