[Federal Register Volume 59, Number 156 (Monday, August 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19928]
[[Page Unknown]]
[Federal Register: August 15, 1994]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
U.S.-Canada Free-Trade Agreement, Article 1904 Binational Panel
Reviews: Decision of the Extraordinary Challenge Committee
AGENCY: NAFTA Secretariat, United States Section, International Trade
Administration, Department of Commerce.
ACTION: Notice of Decision of the Extraordinary Challenge Committee
respecting Softwood Lumber Products from Canada, Secretariat File No.
ECC-94-1904-01USA.
-----------------------------------------------------------------------
SUMMARY: On August 3, 1994, the Extraordinary Challenge Committee (ECC)
in review of the binational panel decision in the panel review of the
affirmative countervailing duty determination made by the International
Trade Administration, dismissed the request for an extraordinary
challenge for failure to meet the standards of an extraordinary
challenge set forth in FTA Article 1904.13. The ECC ordered that the
Binational Panel's May 6, 1993 and December 17, 1993 Decisions
reviewing the International Trade Administration's affirmative
countervailing duty determination and redetermination on remand shall
remain in effect. The Binational Panel's Order Affirming the
Determination on Remand dated February 23, 1994 was affirmed.
FOR FURTHER INFORMATION CONTACT: James R. Holbein, United States
Secretary, NAFTA Secretariat, Suite 2061, 14th and Constitution Avenue,
Washington, D.C. 20230, (202) 482-5438.
SUPPLEMENTARY INFORMATION: Chapter 19 of the United States-Canada Free-
Trade Agreement (``Agreement'') establishes a mechanism to replace
domestic judicial review of final determinations in antidumping and
countervailing duty cases involving imports from the other country with
review by independent binational panels. When a Request for Panel
Review is filed, a panel is established to act in place of national
courts to review expeditiously the final determination to determine
whether it conforms with the antidumping or countervailing duty law of
the country that made the determination.
Under Article 1904.13 of the Agreement, where a Party alleges that
a binational panel has seriously departed from a fundamental rule of
procedure, has manifestly exceeded its powers, authority or
jurisdiction or that a member of the panel has materially violated the
Code of Conduct established pursuant to Article 1910, and further
alleges that any of these actions have materially affected the panel's
decision and threaten the integrity of the panel review process, that
Party may request that an Extraordinary Challenge Committee be
established under the procedure set out in Annex 1904.13 of the
Agreement.
Under Annex 1904.13 of the Agreement, the Government of the United
States and the Government of Canada established Rules of Procedure for
Article 1904 Extraordinary Challenge Committees (``ECC Rules''). These
ECC Rules were published in the Federal Register on December 30, 1988
(53 FR 53222). These Rules were amended in the Federal Register on
February 8, 1994 (59 FR 5910). The ECC Rules give effect to the
provisions of Chapter Nineteen of the Agreement with respect to
Extraordinary Challenge Committee proceedings conducted pursuant to
Article 1904 of the Agreement. The ECC Rules are intended to result in
decisions typically within 30 days after the establishment of the
Extraordinary Challenge Committee. The Extraordinary Challenge
Committee proceeding in this matter was conducted in accordance with
these ECC Rules.
Background
On April 6, 1994, the United States Trade Representative filed a
Request for an Extraordinary Challenge Committee on behalf of the
United States Government in its capacity as a Party to the United
States-Canada Free-Trade Agreement, with the United States Secretary of
the NAFTA Secretariat. Four specific counts were contained in the
Request. (1) The U.S. Government alleged that two of the Binational
Panelists maintained relationships or engaged in activities creating
the appearance of partiality or bias or, in the case of one of the
panelists, constituting a serious conflict of interest. Further,
contrary to the Binational Panel Rules of Conduct, the two Panelists
did not disclose this information before joining the Panel or, in
certain instances, as the information came to light during the Panel
review; (2) The U.S. Government alleged that the Panel, in its May 6,
1993 determination, manifestly exceeded its power, authority, and
jurisdiction by failing to apply the appropriate standard of review and
general legal principles that a court of the United States would apply
when it ruled that Commerce must determine that the preferential
treatment in timber pricing led to an increased output of lumber; (3)
In its December 17, 1993 decision analyzing Commerce's determination
that provincial stumpage programs in fact benefit a specific industry
or group of industries, the Majority manifestly exceeded its power,
authority, or jurisdiction by failing to apply the appropriate standard
of review and by seriously misapprehending the U.S. substantive law it
was required to apply; and (4) Finally, the U.S. Government alleged
that for reasons similar to the case of stumpage, the Majority
manifestly exceeded its powers, authority, and jurisdiction in its
finding concerning whether B.C.'s log expert restriction were
``specific'' under U.S. countervailing duty law.
ECC Decision
The Extraordinary Challenge Committee issued its Memorandum
Opinions and Order on August 3, 1994. Each Committee Member wrote a
separate opinion, two affirming the Binational Panel's decisions and
one dissenting. The Order dismissed the ECC Request for failure to meet
other standards for an extraordinary challenge. The Order also affirmed
the Binational Panel's decisions and order Affirming the Determination
on remand.
Dated: August 8, 1994.
James R. Holbein,
United States Secretary, NAFTA Secretariat.
[FR Doc. 94-19928 Filed 8-12-94; 8:45 am]
BILLING CODE 3510-GT-M