[Federal Register Volume 65, Number 76 (Wednesday, April 19, 2000)]
[Notices]
[Pages 20950-20951]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-9725]


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DEPARTMENT OF COMMERCE

International Trade Administration


North American Free-Trade Agreement, Article 1904 NAFTA Panel 
Reviews; Notice of Request for an Extraordinary Challenge Committee

AGENCY: NAFTA Secretariat, United States Section, International Trade 
Administration, Department of Commerce.

ACTION: Notice of Request for an Extraordinary Challenge Committee to 
review issues raised by the June 18, 1999 and February 10, 2000 
decisions of the binational NAFTA Panel that reviewed the final results 
of administrative review and the redetermination pursuant to remand by 
the United States Department of Commerce (the Department) in the above-
captioned proceeding. This request was filed with the United States 
Section of the NAFTA Secretariat on March 23, 2000.

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SUMMARY: On March 23, 2000, the Office of the United States Trade 
Representative filed a Request for an Extraordinary Challenge Committee 
to review decisions dated June 18, 1999 and February 10, 2000. On June 
18, 1999, the panel convened in this proceeding issued it Opinion an 
Order. The Panel remanded to the International Trade Administration on 
the grounds that the Department erred in basing its normal-value 
calculations on Type I cement in both bulk and bagged form, and it 
remanded this issue to the Department for recalculation using only 
sales in bulk form. On February 10, 2000 the Panel affirmed the Final 
Results of Redetermination pursuant to Panel Remand, without commenting 
on the bulk/bagged issue. The NAFTA Secretariat has assigned Case 
Number ECC-2000-1904-01USA to this request.

FOR FURTHER INFORMATION CONTACT: Caratina L. Alston, United States 
Secretary, NAFTA Secretariat, Suite 2061, 14th and Constitution Avenue, 
Washington, DC 20230, (202) 482-5438.

SUPPLEMENTARY INFORMATION: Chapter 19 of the North American Free-Trade 
Agreement (``Agreement'') establishes a mechanism to replace domestic 
judicial review of final determinations in antidumping and 
countervailing duty cases involving imports from a NAFTA 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, the Government of the 
United States, Canada and Mexico established Rules of Procedure for 
Article 1904 Extraordinary Challenge Committees (``ECC Rules''). These 
ECC Rules were published in the Federal Register on February 23, 1994 
(59 FR 8702). 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 90 days after the establishment of an Extraordinary Challenge 
Committee. The Extraordinary Challenge Committee proceeding in this 
matter will be conducted in accordance with these ECC Rules.

Background

     On April 9, 1997, the Department published the final results of 
the fifth administrative review of the antidumping duty order on gray 
portland cement and clinker from Mexico. During the period of review, 
respondent CEMEX, S.A. de C.V., sold Type II cement in bulk form in the 
United States. Because the Department found CEMEX's home-market sales 
of Type II cement to be outside the ordinary course of trade, the 
Department compared CEMEX's U.S. sales of Type II cement to its home-
market sales of a similar product--Type I cement. The Department 
determined that the foreign like product included all Type I cement, 
whether or not packed in bags. CEMEX objected to the Department's 
finding that the ``similar'' foreign like products included both bulk 
and bagged merchandise, and it requested binational panel review 
pursuant to Chapter 19 of the NAFTA.
    On June 18, 1999, the Panel convened in this proceeding issued its 
Opinion and Order. The Panel held that the Department erred in basing 
its normal-value calculations on Type I cement in both bulk and bagged 
form, and it remanded this issue to the Department for recalculation 
using only sales in bulk form. In reaching its decision, the Panel held 
that Koyo Seiko Co., Ltd. v. United States, 66F. 3d 1204 (Fed. Cir. 
1995), does not mandate deference to the Department's foreign-like-
product analysis in this case, and it made findings of fact relying on 
evidence that was not part of the administrative record. One panelist 
dissented from the Panel's resolution of the bulk/bagged issue with 
respect to the standard of

[[Page 20951]]

review and the Panels reliance of evidence that was not part of the 
administrative record.
    Commerce issued its determination on remand on November 15, 1999. 
The Department explained, ``[w]e have implemented the Panel's ruling 
and revised our calculations to exclude home-market sales of bagged 
cement from the calculation of normal value.'' The Panel affirmed the 
Department's Remand Determination, without commenting on the bulk/
bagged issue.
    Request for an Extraordinary Challenge Committee:
    On March 23, 2000, 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 North 
American Free Trade Agreement, with the United States Secretary of the 
NAFTA Secretariat. The United States alleges that the Panel manifestly 
exceeded its powers, authority or jurisdiction by failing to apply the 
appropriate standard of review in three instances: (1) When the panel 
declined to defer to the Department's interpretation of the model-match 
provisions of the statute, as required by binding precedent of the U.S. 
Court of Appeals for the Federal Circuit as set forth in Koyo Seiko 
Co., Ltd. v. United States, 66 F.3d 1204 (Fed. Cir. 1995); (2) when it 
did not confine its review to the administrative record developed 
before the investigating authority; and (3) when, upon holding that the 
Department did not apply the foreign-like-product statute properly, it 
usurped the Department's authority as investigating authority and 
issued its own findings of fact.
    Rule 40 of the ECC Rules requires that Notices of Appearance in 
this proceeding must be filed with the United States Secretary within 
10 days after the Request is filed (By April 3, 2000). Rule 42 of the 
ECC Rules, briefs must be filed with the United States Secretary within 
21 days of the filing of the Request (by April 13, 2000).

    Dated: March 27, 2000.
Caratina L. Alston,
United States Secretary, NAFTA Secretariat.
[FR Doc. 00-9725 Filed 4-18-00; 8:45 am]
BILLING CODE 3510-GT-U