[Federal Register Volume 69, Number 206 (Tuesday, October 26, 2004)]
[Notices]
[Pages 62436-62437]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E4-2857]


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DEPARTMENT OF COMMERCE

International Trade Administration


North American Free-Trade Agreement (NAFTA), Article 1904 NAFTA 
Panel Reviews; Decision of the Panel

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

ACTION: Notice of decision of NAFTA Panel.

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SUMMARY: On October 19, 2004, the NAFTA Panel issued its decision in 
the matter of Corrosion-Resistant Carbon Steel Flat Products from 
Canada, Secretariat File No. USA-CDA-00-1904-11.

FOR FURTHER INFORMATION CONTACT: Caratina L. Alston, United States 
Secretary, NAFTA Secretariat, Suite 2061, 14th and Constitution Avenue, 
NW., 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 of the Agreement, which came into force on 
January 1, 1994, the Government of the United States, the Government of 
Canada and the Government of Mexico established Rules of Procedure for 
Article 1904 Binational Panel Reviews (``Rules''). These rules were 
published in the Federal Register on February 23, 1994 (59 FR 8686). 
The panel review in this matter was conducted in accordance with these 
rules.
    Background Information: On December 28, 2000, Dofasco filed a First 
Request for Panel Review with the United States Section of the NAFTA 
Secretariat pursuant to Article 1904 of the North American Free Trade 
Agreement. Panel review was requested of the final results of the full 
sunset review of antidumping duty orders made by the United States 
International Trade Commission, respecting Certain Corrosion-Resistant 
Steel Flat Products from Canada and the continuation of antidumping 
duty order by the U.S. Department of Commerce based on the 
International Trade Commission's determination. These determinations 
were published in the Federal Register, (65 FR 75301) on December 1, 
2000, and (65 FR 78469) on December 15, 2000. The NAFTA Secretariat has 
assigned Case Number USA-CDA-00-1904-11 to this request.

Panel Decision

    The Panel remanded this matter back to the International Trade 
Commission and found:
    (1) The Commission's decision to cumulate Canadian imports, in 
light of its consideration of the high capacity utilization rates in 
Canada, is unsupported by substantial evidence; and
    (2) The Commission's determination that the Domestic Industry is in 
a ``weakened state'', in light of its ``profit center'' rationale, is 
unsupported by substantial evidence and not in accordance with law.
    Accordingly, the Panel remanded the case to the Commission stating:

--If it still wishes to cumulate Canadian corrosion resistant steel 
products, the Commission must sufficiently explain and articulate--
consistent with this opinion--the basis of its conclusions as to 
whether, in light of the high capacity utilization rates prevalent in 
Canada during the period of review, there exists substantial evidence 
in the record upon which to base the Commission's determination that 
there was available excess capacity in Canada sufficient to lead to an 
increase in imports having a discernible adverse impact upon the 
domestic industry if the antidumping order were to be revoked.
--If the Commission still chooses to find that the Domestic Industry is 
in a vulnerable or weakened state, the Commission must sufficiently 
explain and articulate--consistent with this opinion--the basis of its 
conclusions as to whether the Commission's analysis of the impact of 
Canadian imports involves the profits of the domestic corrosion-
resistant steel industry or those of the broader steel industry, and 
the impact of the profit analysis upon the Commission's affirmative 
vulnerability determination regarding the domestic corrosion-resistant 
steel industry.

    In a separate opinion, Panelist Anissimoff stated in part:
    The issue concerns the Arguments made by parties before the 
Commission which are left unaddressed by the Commission in its 
determination. The Complainant says that its arguments and evidence 
were not expressly addressed by the Commission in its determination.
    The obligation to discuss relevant and material arguments legally 
springs from 19 U.S.C. 1677f(i)(3)(B) along with the legislative 
history as found at the Uruguay Round Trade Agreements, Statement of 
Administrative Action, H.R. Doc. No. 316, Vol. 1, 103d Cong., 2d Sess. 
892 (1994) (hereinafter ``SAA''). Shortly stated, the Commission is 
legally obliged to discuss in its determination the relevant and 
material arguments made by interested parties, in this case the 
Complainant.
    Equally the Commission is presumed by law to have considered all of 
the

[[Page 62437]]

arguments and evidence of the interested parties in making its 
determination. However, Dastech Int'l., as recognized in Usinor Beautor 
v. United States, in no sense gives a carte blanche to the Commission 
to not address in its determination the material and relevant arguments 
of a party.
    The Panel ordered the Commission to issue a determination on remand 
consistent with the instructions set forth in the Panel's decision not 
later than December 3, 2004.

     Dated: October 20, 2004.
Caratina L. Alston,
United States Secretary, NAFTA Secretariat.
 [FR Doc. E4-2857 Filed 10-25-04; 8:45 am]
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