E6-1204. 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 [phone] and [phone], 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 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.