[Federal Register Volume 71, Number 71 (Thursday, April 13, 2006)]
[Notices]
[Pages 19166-19167]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-5498]


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DEPARTMENT OF COMMERCE

International Trade Administration

[C-122-839]


Countervailing Duty Investigation of Certain Softwood Lumber 
Products From Canada: Notice of NAFTA Panel Decision

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: On November 22, 2005, the Department of Commerce 
(``Department'') issued its Fifth Remand Determination In the Matter of 
Certain Softwood Lumber from Canada: Final Affirmative Countervailing 
Duty Determination, Secretariat File No. USA-CDA-2002-1904-03 NAFTA 
Binational Panel Review (``Fifth Remand Determination''). On March 17, 
2006, a North American Free Trade Agreement (``NAFTA'') Panel upheld 
the Department's Fifth Remand Determination. See Decision of the Panel 
on Fifth Remand, In the Matter of Certain Softwood Lumber from Canada: 
Final Affirmative Countervailing Duty Determination, Secretariat File 
No. USA-CDA-2002-1904-03 NAFTA Binational Panel Review, March 17, 2006 
(``Panel Decision on Fifth Remand''). Subsequently, the NAFTA Panel 
directed the NAFTA Secretariat to issue a Notice of Final Panel Action 
on March 28, 2006.
    Consistent with the decision of the United States Court of Appeals 
for the Federal Circuit (``Federal Circuit'') in Timken Co. v. United 
States, 893 F.2d 337 (Fed. Cir. 1990)(``Timken''), the Department is 
notifying the public that the Panel Decision on Fifth Remand and the 
Notice of Final Panel Action issued by the NAFTA Secretariat are not 
``in harmony'' with the Department's original results.

EFFECTIVE DATE: April 7, 2006.

FOR FURTHER INFORMATION CONTACT: James Terpstra, AD/CVD Operations, 
Office 3, Import Administration, International Trade Administration, 
U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., 
Washington, DC 20230; telephone: (202) 482-3965.

SUPPLEMENTARY INFORMATION:

Background

    On April 2, 2002, the Department published a notice of final 
determination in the countervailing duty investigation on certain 
softwood lumber products from Canada. See Notice of Final Affirmative 
Countervailing Duty Determination and Final Negative Critical 
Circumstances Determination: Certain Softwood Lumber Products From 
Canada, 67 FR 15545 (April 2, 2002) (Final Determination) and 
accompanying Issues and Decision Memorandum: Final Results of the 
Countervailing Duty Investigation of Certain Softwood Lumber Products 
from Canada (March 21, 2002). The Final Determination was subsequently 
amended. See Notice of Amended Final Affirmative Countervailing Duty 
Determination and Notice of Countervailing Duty Order: Certain Softwood 
Lumber Products From Canada, 67 FR 36070 (May 22, 2002). Respondent 
parties subsequently challenged the Department's final determination 
before the United States-Canada Binational Panel, pursuant to Article 
1904 of NAFTA. The parties briefed and argued the case before the 
Panel, and on August 13, 2003, the Panel issued its decision, affirming 
in part and remanding in part the Department's determination. See 
Decision of the Panel, In the Matter of Certain Softwood Lumber from 
Canada: Final Affirmative Countervailing Duty Determination, 
Secretariat File No. USA-CDA-2002-1904-03 NAFTA Binational Panel 
Review, August 13, 2003. On January 12, 2004, the Department issued its 
first remand determination continuing to find that Canadian softwood 
lumber was subsidized but at a country-wide rate of 13.23 percent ad 
valorem. See Remand Determination In the Matter of Certain Softwood 
Lumber from Canada: Final Affirmative Countervailing Duty 
Determination, Secretariat File No. USA-CDA-2002-1904-03 NAFTA 
Binational Panel Review, January 12, 2004. On June 7, 2004, the Panel 
issued its decision on remand, affirming in part and remanding in part 
the Department's determination. See Decision of the Panel, In the 
Matter of Certain Softwood Lumber from Canada: Final Affirmative 
Countervailing Duty Determination, Secretariat File No. USA-CDA-2002-
1904-03 NAFTA Binational Panel Review, June 7, 2004. On July 30, 2004, 
the Department issued its second remand determination continuing to 
find that Canadian lumber is subsidized but at a country-wide rate of 
7.82 percent ad valorem. See Second Remand Determination In the Matter 
of Certain Softwood Lumber from Canada: Final Affirmative 
Countervailing Duty Determination, Secretariat File No. USA-CDA-2002-
1904-03 NAFTA Binational Panel Review, July 30, 2004 (Second Remand 
Determination). On December 1, 2004, the Panel issued its decision on 
second remand, affirming in part and remanding in part the Department's 
determination. See Decision of the Panel on Second Remand, In the 
Matter of Certain Softwood Lumber from Canada: Final Affirmative 
Countervailing Duty Determination, Secretariat File No. USA-CDA-2002-
1904-03 NAFTA Binational Panel Review, December 1, 2004. On January 24, 
2005, the Department issued its third remand determination continuing 
to find that Canadian lumber is subsidized but at a country-wide rate 
of 1.88 percent ad valorem. See Third Remand Determination In the 
Matter of Certain Softwood Lumber from Canada: Final Affirmative 
Countervailing Duty Determination, Secretariat File No. USA-CDA-2002-
1904-03 NAFTA Binational Panel Review, January 24, 2005 (Third Remand 
Determination). On May 23, 2005, the Panel issued its decision on third 
remand, affirming in part and remanding in part the

[[Page 19167]]

Department's determination. See Decision of the Panel on Third Remand, 
In the Matter of Certain Softwood Lumber from Canada: Final Affirmative 
Countervailing Duty Determination, Secretariat File No. USA-CDA-2002-
1904-03 NAFTA Binational Panel Review, May 23, 2005. On July 7, 2005, 
the Department issued its fourth remand determination again continuing 
to find that Canadian lumber is subsidized but at a country-wide rate 
of 1.21 percent ad valorem. See Fourth Remand Determination In the 
Matter of Certain Softwood Lumber from Canada: Final Affirmative 
Countervailing Duty Determination, Secretariat File No. USA-CDA-2002-
1904-03 NAFTA Binational Panel Review, July 7, 2005. On October 5, 
2005, the Panel issued its decision on fourth remand, affirming in part 
and remanding in part the Department's determination. See Decision of 
the Panel on Fourth Remand, In the Matter of Certain Softwood Lumber 
from Canada: Final Affirmative Countervailing Duty Determination, 
Secretariat File No. USA-CDA-2002-1904-03 NAFTA Binational Panel 
Review, October 5, 2005. The Panel directed the Department to use the 
figure of C$4.34 in determining the profit earned by sellers of logs in 
the Province of Quebec for the purpose of developing a log-based 
benchmark price. The Department continued to object to the Panel's 
decision, but, on November 22, 2005, filed its Fifth Remand 
Determination in compliance with the Panel's directions, finding a 
country-wide subsidy rate of 0.80 percent which is de minimis. By 
decision on March 17, 2006, the Panel affirmed the Fifth Remand 
Determination and subsequently directed the NAFTA Secretariat to issue 
a Notice of Final Panel Action on March 28, 2006.

Timken Notice

    In its decision in Timken, the Federal Circuit held that, pursuant 
to 19 U.S.C. Sec.  1516a(c)(1) and 1516a(e), the Department must 
publish notice of decision of the Court of International Trade which is 
``not in harmony'' with the Department's results. See Timken, 893 F.2d 
at 340. 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 NAFTA Panel's March 28, 2006, Notice of 
Final Panel Action and its Panel Decision on Fifth Remand, decision are 
``not in harmony'' with the Final 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 April 7, 2006, i.e., 10 
days from the issuance of the Notice of Final Action, at the current 
cash deposit rate.

    Dated: April 6, 2006.
David M. Spooner,
Assistant Secretaryfor Import Administration.
[FR Doc. E6-5498 Filed 4-12-06; 8:45 am]
BILLING CODE 3510-DS-S