[Federal Register Volume 59, Number 36 (Wednesday, February 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-3931]
[[Page Unknown]]
[Federal Register: February 23, 1994]
_______________________________________________________________________
Part IV
Department of Commerce
_______________________________________________________________________
International Trade Administration
_______________________________________________________________________
North American Free Trade Agreement: Rules of Procedure for Article
1905 Special Committees; Notice
DEPARTMENT OF COMMERCE
International Trade Administration
North American Free Trade Agreement: Rules of Procedure for
Article 1905 Special Committees
AGENCY: North American Free Trade Agreement, NAFTA Secretariat, United
States Section, International Trade Administration, Department of
Commerce.
ACTION: Rules of Procedure for NAFTA Article 1905 Special Committees.
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SUMMARY: Canada, Mexico, and the United States have negotiated the
rules of procedure for Article 1905 Special Committees. These rules
apply to special committee proceedings conducted pursuant to Article
1905 of the Agreement, unless the involved Parties otherwise agree.
EFFECTIVE DATE: January 1, 1994, the date of the entry into force of
the North American Free Trade Agreement (``Agreement''). These Rules of
Procedure shall apply to all special committee proceedings commenced on
or after the effective date.
FOR FURTHER INFORMATION CONTACT: Lisa B. Koteen, Senior Attorney, Stacy
J. Ettinger, Attorney-Advisor, or Terrence J. McCartin, Attorney-
Advisor, Office of the Chief Counsel for Import Administration, room B-
099, U.S. Department of Commerce, 14th and Constitution Avenue, NW.,
Washington, DC 20230; telephone: (202) 482-0836, (202) 482-4618, or
(202) 482-5031, respectively. For procedural matters involving cases
under panel review, contact James R. Holbein, United States Secretary,
NAFTA Secretariat, room 2061, U.S. Department of Commerce, 14th and
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
5438; fax: (202) 482-0148.
SUPPLEMENTARY INFORMATION:
Background
Chapter Nineteen of the North American Free Trade Agreement
(``Agreement'') establishes a mechanism for replacing judicial review
of final antidumping and countervailing duty determinations involving
imports from Canada, Mexico, or the United States with review by
independent binational panels. If requested, these panels will
expeditiously review final determinations to determine whether they are
consistent with the antidumping or countervailing duty law of the
importing country.
In instances in which one of the Parties to the Agreement alleges,
pursuant to Article 1905.1 of the Agreement, that the application of
another Party's domestic law (a) has prevented the establishment of a
panel; (b) has prevented a panel from rendering a final decision; (c)
has prevented the implementation of a panel's decision or denied it
binding force and effect; or (d) has resulted in a failure to provide
opportunity for proper review of a final determination by a panel or a
court of competent jurisdiction, that Party may request the
establishment of a special committee.
Title IV of the North American Free Trade Agreement Implementation
Act of 1993, Public Law No. 103-182, 107 Stat. 2057, amends United
States law to implement Chapter Nineteen of the Agreement.
The Article 1905 Special Committee Rules are intended to give
effect to the special committee provisions of Chapter Nineteen of the
Agreement by setting forth the procedures for commencing, conducting,
and completing special committee proceedings. These rules are the
result of negotiations among Canada, Mexico, and the United States in
compliance with the terms of the Agreement.
North American Free Trade Agreement Rules of Procedure for Article 1905
Special Committees
Contents
Rule
1. Short Title
2. Statement of General Intent
3. Interpretation
4. Operation of the Special Committee
11. Service of Documents
12. Written Submissions
18. Hearings
23. Language of Proceedings
25. Special Committee Deliberations
26. Reports
30. Reconvening of Special Committee
36. Completion of Special Committee Proceedings
38. Confidentiality
40. Ex Parte Contacts
41. Extension and Computation of Time
43. Responsibilities of the Responsible Secretary
45. Death or Incapacity
The Parties,
Having regard to Chapter Nineteen of the North American Free Trade
Agreement between Canada, the United Mexican States and the United
States of America;
Acting pursuant to Article 1905.6 of the Agreement;
Adopt the following Rules of Procedure, which shall come into force
on the same day as the Agreement enters into force and from that day
shall govern all special committee proceedings conducted pursuant to
Article 1905 of the Agreement.
Short Title
1. These rules may be cited as the Article 1905 Special Committee
Rules.
Statement of General Intent
2. These rules shall apply to special committee proceedings
conducted pursuant to Article 1905 of the Agreement, unless the
involved Parties otherwise agree. Where a procedural question arises
that is not covered by these rules, a special committee may adopt an
appropriate procedure that is not inconsistent with the Agreement. In
the event of any inconsistency between the provisions of these rules
and the Agreement, the Agreement shall prevail.
Interpretation
3. In these rules,
``Agreement'' means the North American Free Trade Agreement;
``Complaining Party'' means a Party who requests, pursuant to
Article 1905.2 of the Agreement, that a special committee be
established;
``involved Secretariat'' means the responsible Secretariat or the
section of the Secretariat located in the country of the other involved
Party;
``legal holiday'' means
(a) with respect to the Canadian Section of the Secretariat, every
Saturday and Sunday, New Year's Day (January 1), Good Friday, Easter
Monday, Victoria Day, Canada Day (July 1), Labour Day (first Monday in
September), Thanksgiving Day (second Monday in October), Remembrance
Day (November 11), Christmas Day (December 25), Boxing Day (December
26), any other day fixed as a statutory holiday by the Government of
Canada or by the province in which the section is located and any day
on which the offices of the Canadian Section of the Secretariat are
officially closed in whole or in part,
(b) with respect to the Mexican Section of the Secretariat, every
Saturday and Sunday, New Year's Day (January 1), Constitution Day
(February 5), Benito Juarez's Birthday (March 21), Labor Day (May 1),
Battle of Puebla (May 5), Independence Day (September 16),
Congressional Opening Day (November 1), Revolution Day (November 20),
Transmission of the Federal Executive Branch (every six years on
December 1), Christmas Day (December 25), any day designated as a
statutory holiday by the Federal Laws or, in the case of Ordinary
Elections, by the Local Electoral Laws and any day on which the offices
of the Mexican Section of the Secretariat are officially closed in
whole or in part, and
(c) with respect to the United States Section of the Secretariat,
every Saturday and Sunday, New Year's Day (January 1), Martin Luther
King's Birthday (third Monday in January), Presidents' Day (third
Monday in February), Memorial Day (last Monday in May), Independence
Day (July 4), Labor Day (first Monday in September), Columbus Day
(second Monday in October), Veterans' Day (November 11), Thanksgiving
Day (fourth Thursday in November), Christmas Day (December 25), any day
designated as a holiday by the President or the Congress of the United
States and any day on which the offices of the Government of the United
States located in the District of Columbia or the offices of the United
States Section of the Secretariat are officially closed in whole or in
part;
``Mexico'' means the United Mexican States;
``official publication'' means
(a) in the case of the Government of Canada, the Canada Gazette,
(b) in the case of the Government of Mexico, the Diario Oficial de
la Federacion, and
(c) in the case of the Government of the United States, the Federal
Register;
``Party'' means the Government of Canada, the Government of Mexico
or the Government of the United States;
``Responding Party'' means the Party against whom an allegation is
made under Article 1905.1 of the Agreement;
``responsible Secretariat'' means the section of the Secretariat of
the Responding Party;
``responsible Secretary'' means the Secretary of the responsible
Secretariat;
``Secretariat'' means the Secretariat established pursuant to
Article 2002 of the Agreement;
``Secretary'' means the Secretary of the United States Section of
the Secretariat, the Secretary of the Mexican Section of the
Secretariat or the Secretary of the Canadian Section of the Secretariat
and includes any person authorized to act on behalf of that Secretary;
``special committee'' means a special committee established
pursuant to Article 1905 of the Agreement;
``United States'' means the United States of America.
Operation of the Special Committee
4. (1) Subject to subrule (2), unless the involved Parties
otherwise agree, special committee meetings shall take place at the
offices of the responsible Secretariat or at such alternative location
as the committee members may agree.
(2) A special committee may conduct meetings or exchange
information by any means, including by means of a telephone conference
call or facsimile or computer transmission.
5. The members of a special committee shall select from among
themselves a chairperson, who shall preside over all meetings and
hearings of the special committee.
6. The chairperson of the special committee shall fix the date and
time of its meetings in consultation with other special committee
members and the responsible Secretary.
7. All reports, findings, determinations and decisions of a special
committee shall be made or issued by a majority vote of all members of
the special committee.
8. A special committee proceeding commences on the day on which a
request for a special committee is filed with the responsible
Secretariat and terminates on the day on which a notice of completion
of the special committee proceeding is issued pursuant to rule 36.
9. (1) A special committee may adopt internal procedures of its
own, not inconsistent with these rules, for routine administrative
matters.
(2) A special committee may delegate to its chairperson the
authority to make decisions regarding internal procedures or routine
administrative matters.
10. The terms of reference of a special committee shall be limited
to
(a) making a finding as to whether any allegations set out in
Article 1905.1 of the Agreement made by the Complaining Party regarding
the application of the Responding Party's domestic law are
substantiated;
(b) determining whether a suspension of benefits by the Complaining
Party pursuant to Article 1905.8(b) of the Agreement is manifestly
excessive; and
(c) determining whether the Responding Party has corrected a
problem with respect to which the special committee has made an
affirmative finding.
Service of Documents
11. A document to be filed by an involved Party with the
responsible Secretariat shall
(a) be served on the other involved Party by express courier,
overnight mail or by any other means agreed upon by the involved
Parties; and
(b) when filed, be accompanied by a proof of service certifying
that the document has been served on the other involved Party,
indicating the manner, date and time of service.
Written Submissions
12. All written submissions and responses filed with a responsible
Secretariat shall be accompanied by four copies thereof.
13. (1) A request for the establishment of a special committee
under Article 1905.2 of the Agreement shall be made by filing the
request with the responsible Secretariat.
(2) On the filing of a request under subrule (1), the responsible
Secretary and the other involved Secretary shall cause a notice of the
filing of the request to be published in the official publications of
the countries in which their sections of the Secretariat are located.
14. The written initial submission of a Complaining Party shall be
filed with the responsible Secretariat no later than 10 days after the
date on which the last member of the special committee is appointed.
15. A written response by the Responding Party shall be filed with
the responsible Secretariat no later than 20 days after the filing of
the initial submission of the Complaining Party.
16. A special committee may allow each involved Party the
opportunity to make an equal number of further written submissions,
within such time as may be fixed by the special committee, having
regard to the time limits fixed by Annex 1905.6 to Chapter Nineteen of
the Agreement.
17. The responsible Secretary shall forward to the other involved
Secretary a copy of all documents filed with the responsible
Secretariat and of all reports, findings, determinations and decisions
issued by the special committee.
Hearings
18. (1) At least one hearing shall be held before the special
committee presents its initial report.
(2) The date and time of hearings shall be fixed by the special
committee in consultation with the involved Parties and the responsible
Secretary.
(3) A verbatim transcript shall be taken of all hearings.
19. Unless the involved Parties otherwise agree, special committee
hearings shall take place at the offices of the responsible
Secretariat.
20. (1) All special committee members must be present during
hearings.
(2) No later than five days before the date of a hearing, each
involved Party shall deliver to the responsible Secretariat and to the
other involved Party a list of the names of the persons who will
present oral arguments at the hearing on behalf of that Party and of
other representatives or advisers of the Party who will be attending
the hearing.
21. Oral proceedings shall be conducted in the following order,
ensuring that each involved Party is given equal time:
(a) the argument of the Complaining Party;
(b) the argument of the Responding Party;
(c) a reply of the Complaining Party; and
(d) a counter-reply of the Responding Party.
22. At the request of an involved Party or at the initiative of the
special committee, with the agreement of both involved Parties and
subject to such terms and conditions as both involved Parties may agree
upon, the special committee may call upon any person to provide
information concerning the matter in dispute.
Language of Proceedings
23. Written and oral proceedings may be in either English, French
or Spanish, or in any combination thereof.
24. Unless the involved Parties otherwise agree, the reports,
findings, determinations and decisions of a special committee shall be
issued in an official language of the Responding Party and, if
necessary, shall be promptly translated into an official language of
the other involved Party.
Special Committee Deliberations
25. (1) The deliberations of a special committee shall take place
in private and remain confidential.
(2) Only special committee members may take part in the
deliberations of a special committee.
(3) Staff of the involved Secretariats, assistants to the special
committee members and any necessary support staff may be present during
deliberations of a special committee by permission of the special
committee.
Reports
26. In accordance with paragraph (b) of Annex 1905.6 to Chapter
Nineteen of the Agreement, a special committee shall prepare and
present to the involved Parties an initial report, wherever
practicable, within 60 days after the appointment of the last member of
the special committee.
27. The involved Parties may comment in writing or, at the request
of the special committee, orally, on an initial report of a special
committee within 14 days after the initial report is presented.
28. An initial report of a special committee shall be kept
confidential.
29. (1) A special committee shall issue a final report, together
with any separate opinions rendered by individual committee members,
within 30 days after the presentation of its initial report.
(2) Any separate opinions rendered by individual special committee
members shall be anonymous.
(3) On the issuance of a final report under subrule (1), the
responsible Secretary shall immediately forward copies of the report to
the involved Parties.
(4) Unless the involved Parties otherwise agree,
(a) within 10 days after the final report is forwarded to the
involved Parties, the involved Secretaries shall cause a notice that a
final report has been issued by a special committee to be published in
the official publications of the involved Parties, indicating that
copies of the report and of any separate opinions by individual members
or written views of either involved Party are available to the public
at the offices of the responsible Secretariat; and
(b) the responsible Secretariat shall make available to the public
copies of the final report of a special committee, together with any
separate opinions by individual members and any written views that
either involved Party may wish to be published.
Reconvening of Special Committee
30. Where a special committee has made an affirmative finding with
respect to grounds specified in Article 1905.1 of the Agreement, a
Responding Party may request that the special committee be reconvened
by filing a request with the responsible Secretariat
(a) where the Responding Party is requesting that the special
committee determine whether the Responding Party has corrected a
problem with respect to which the special committee has made an
affirmative finding, at any time after the affirmative finding was
made; or
(b) where the Responding Party is requesting that the special
committee determine whether a suspension of benefits by the Complaining
Party under Article 1905.8 of the Agreement is manifestly excessive, at
any time after the suspension was made.
31. (1) Where a request referred to in subrule 30(a) is filed
before the fortieth day of the 60-day consultation period referred to
in Article 1905.8 of the Agreement, the special committee shall
endeavour to present a report containing its determination to the
involved Parties before the sixtieth day of that period, and may for
that purpose make such orders as to filing of written submissions and
responses and the holding of a hearing as the special committee
considers necessary under the circumstances.
(2) Rules 32 to 34 apply with respect to requests referred to in
subrule 30(a) that are filed on or after the fortieth day of the 60-day
consultation period referred to in Article 1905.8 and to requests
referred to in subrule 30(b).
32. (1) At the time of filing a request pursuant to rule 30, the
Responding Party shall file a written submission in support of the
request.
(2) A Complaining Party shall file a written response to a
submission referred to in subrule (1) within 20 days after that
submission is filed.
33. (1) At the time of filing a request pursuant to rule 30 or a
written response pursuant to subrule 32(2), an involved Party may
request an opportunity to present oral argument in support of its
request or response.
(2) Where an involved Party requests an opportunity to present oral
argument pursuant to subrule (1), the special committee may hold a
hearing, at which both involved Parties shall be granted an equal
opportunity to present oral argument.
34. The special committee shall, within 45 days of the filing of a
request pursuant to rule 30, present to the involved Parties a written
report containing its determination pursuant to Article 1905.10 of the
Agreement.
35. Subrules 29 (2) to (4) apply, with such modifications as are
necessary, to reports referred to in subrule 31(1) and rule 34.
Completion of Special Committee Proceedings
36. (1) On completion of a special committee proceeding, as
determined by the special committee in consultation with the involved
Parties, the special committee shall request the responsible Secretary
to issue a notice of completion of the proceeding.
(2) A notice referred to in subrule (1) is effective the day after
it is issued.
(3) The responsible Secretary shall cause a notice issued under
subrule (1) to be published in the official publications of the
involved Parties.
37. The members of a special committee are discharged from their
duties on the day on which a notice of completion of the special
committee proceeding is effective.
Confidentiality
38. All written submissions to, and communications with, a special
committee and all documents filed with the involved Secretariats shall
be kept confidential.
39. (1) All hearings of a special committee, and all transcripts
thereof, shall be kept confidential.
(2) It is the responsibility of each involved Party to ensure that
the persons attending oral proceedings of a special committee on its
behalf maintain the confidentiality of the proceedings.
Ex Parte Contacts
40. (1) No special committee or member of a special committee shall
meet or contact one involved Party in the absence of the other involved
Party.
(2) No special committee member shall discuss a matter before the
special committee with the involved Parties in the absence of other
special committee members.
Extension and Computation of Time
41. A time period fixed by these rules may be extended with the
consent of both involved Parties or by a decision of a special
committee.
42. (1) In computing any time period fixed in or under these rules,
the day or date from which the time period begins to run shall be
excluded and, subject to subrule (2), the last day of the time period
shall be included.
(2) Where the last day of a time period computed in accordance with
subrule (1) falls on a legal holiday of the responsible Secretariat,
that day and any other legal holidays of the responsible Secretariat
immediately following that day shall be excluded from the computation.
(3) In computing any time period of five days or less fixed in
these rules or by a decision of a special committee, any legal holiday
that falls within the time period shall be excluded from the
computation.
Responsibilities of the Responsible Secretary
43. The responsible Secretary shall provide administrative support
for each special committee proceeding and shall make the arrangements
necessary for the hearings and meetings of the special committee,
including the provision of court reporters and, if required,
interpreters to provide simultaneous translation.
44. The responsible Secretary shall maintain a file for each
special committee proceeding, comprised of the original or a copy of
all documents filed, whether or not filed in accordance with these
rules, in the special committee proceeding.
Death or Incapacity
45. Where a special committee member is disqualified, dies or
otherwise becomes unable to fulfil special committee duties,
(a) special committee proceedings and computations of time shall be
suspended, pending the appointment of a substitute member; and
(b) where the disability, disqualification or death occurs after
oral argument has begun, the chairperson may order that the matter be
reheard, on such terms as are appropriate, after selection of a
substitute member.
Dated: February 10, 1994.
Timothy J. Hauser,
Deputy Under Secretary for International Trade.
[FR Doc. 94-3931 Filed 2-22-94; 8:45 am]
BILLING CODE 3510-GT-P
