[Federal Register Volume 71, Number 20 (Tuesday, January 31, 2006)]
[Notices]
[Pages 5050-5051]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-1204]


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DEPARTMENT OF COMMERCE

International Trade Administration

[C-122-848; A-122-847]


Antidumping Duty Investigation and Countervailing Duty 
Investigation of Hard Red Spring Wheat from Canada: NAFTA Panel 
Decision

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: On June 7, 2005, a North American Free Trade Agreement United 
States-Canada Binational Panel reviewing the International Trade 
Commission's finding that an industry in the United States was 
materially injured by reason of imports of hard red spring wheat from 
Canada, remanded the case to the International Trade Commission. On 
October 5, 2005, the International Trade Commission determined on 
remand that the domestic industry is neither materially injured by 
reason of the subject imports nor threatened with such injury. By 
decision issued on December 12, 2005, the Panel affirmed in full the 
International Trade Commission's determination on remand. Consistent 
with the decision of the United States Court of Appeals for the Federal 
Circuit in Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990), 
the Department of Commerce is notifying the public that the 
International Trade Commission's remand determination for hard red 
spring wheat from Canada and the Notice of Final Panel Action issued by 
the Panel reviewing the International Trade Commission's determination, 
discussed below, are not ``in harmony'' with the International Trade 
Commission's original results.

EFFECTIVE DATE: January 31, 2006.

FOR FURTHER INFORMATION CONTACT: Brandon Farlander or Audrey Twyman, 
Office of AD/CVD Operations, Office 1, Import Administration, U.S. 
Department of Commerce, 14th Street and Constitution Avenue, NW., 
Washington, DC 20230; telephone (202) 482-0182 and (202) 482-3534, 
respectively.

SUPPLEMENTARY INFORMATION:

Background

    On October 16, 2003, the International Trade Commission (``ITC'') 
determined that an industry in the United States is materially injured 
by reason of imports of hard red spring wheat from Canada found to be 
subsidized and sold in the United States at less than fair value. Hard 
Red Spring Wheat from Canada, Inv. Nos. 701-TA-430B and 731-TA-1019B 
(Final), USITC Pub. 3639 (October 2003) (``Final Injury 
Determination''); 68 FR 60707 (October 23, 2003). Respondent parties 
subsequently challenged the ITC's Final Injury Determination before the 
United States-Canada Binational Panel (``Panel''), pursuant to Article 
1904 of the North American Free Trade Agreement (``NAFTA''). The 
parties briefed and argued the case before the Panel, and on June 7, 
2005, the Panel issued its decision, remanding in full the ITC's 
determination. Hard Red Spring Wheat from Canada, USA-CDA- 2003-1904-
06, Decision of the Panel (June 7, 2005).
    On October 5, 2005, the ITC determined on remand that the domestic 
industry is neither materially injured by reason of the subject imports 
nor threatened with material injury. By decision issued on December 12, 
2005, the Panel affirmed in full the ITC's determination on remand. 
Hard Red Spring Wheat from Canada, USA-CDA-2003-1904-06, Decision of 
the Panel on the Remand Determination of the U.S. International Trade 
Commission (December 12, 2005). On December 12, 2005, the Panel 
directed the NAFTA Secretariat to issue a Notice of Final Panel Action 
on the 11th day following the December 12, 2005, panel decision. 
Decision of the Panel, 70 FR 75792 (December 21, 2005). The Notice of 
Final Panel Action was issued on December 23, 2005.

Timken Notice

    In the United States Court of Appeals for the Federal Circuit 
(``Federal Circuit'') decision in Timken Co. v. United States, 893 F.2d 
337 (Fed. Cir. 1990) (``Timken''), the Federal Circuit

[[Page 5051]]

held that, pursuant to 19 U.S.C. Sec. 1516a(c)(1) and 1516a(e), the 
Department of Commerce (``the Department'') must publish notice of 
decision of the Court of International Trade (``CIT'') which is ``not 
in harmony'' with the Department's results. Timken, 893 F.2d at 340. 
This is true for CIT decisions which are ``not in harmony'' with the 
results of ITC injury, or threat of injury, determinations as well. 
Because NAFTA panels step into the shoes of the courts they are 
replacing, they must apply the law of the national court that would 
otherwise review the administrative determination. Therefore, we are 
publishing notice that the Panel's December 23, 2005, Notice of Final 
Panel Action, and its December 12, 2005, decision are ``not in 
harmony'' with the ITC's Final Injury Determination. Publication of 
this notice fulfills the obligation imposed upon the Department by the 
decision in Timken.
    In addition, this notice will serve to suspend liquidation of 
entries of subject merchandise entered, or withdrawn from warehouse, 
for consumption on or after January 2, 2006, i.e., 10 days from the 
issuance of the Notice of Final Panel Action, at the current cash 
deposit rate.

    January 25, 2006.
David M. Spooner,
Assistant Secretary for Import Administration.
[FR Doc. E6-1204 Filed 1-30-06; 8:45 am]
BILLING CODE 3510-DS-S