E5-2842. North American Free-Trade Agreement (NAFTA), Article 1904 Binational Panel Reviews

AGENCY:

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

ACTION:

Notice of decision of panel.

SUMMARY:

On May 26, 2005 the binational panel issued its decision in the review of the final antidumping administrative review made by the International Trade Administration, respecting Gray Portland Cement and Clinker from Mexico, NAFTA Secretariat File Number USA-MEX-98-1904-02. The binational panel affirmed in part and remanded in part the International Trade Administration's determination. Copies of the panel decision are available from the U.S. Section of the NAFTA Secretariat.

FOR FURTHER INFORMATION CONTACT:

Caratina L. Alston, United States Secretary, NAFTA Secretariat, Suite 2061, 14th and Constitution Avenue, Washington, DC 20230, [phone].

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 has been conducted in accordance with these Rules.

Panel Decision: The panel affirmed in part and remanded in part the International Trade Administration's determination respecting Gray Portland Cement and Clinker from Mexico. The panel remanded on the following issues:

1. That the Department of Commerce reconsider, in view of the changed methodology adopted in the remand determination in the Seventh Review, whether CEMEX's home market sales of Type V cement sold as Type II and Type V cement produced at the Hermosillo plants were outside the ordinary course of trade, and support whatever conclusion is reach with adequate reasoning based on substantial evidence in the record;

2. Further analyze and explain the plant efficiency issues in the calculation of the DIFMER adjustment in accordance with this opinion; and

3. Reclassify certain sales in accordance with the decision of the Court of Appeals for the Federal Circuit in AK Steel v. United States.

Commerce was directed to issue it's determination on remand within 60 days of the issuance of the panel decision or not later than July 25, 2005.

The Department's decision in the final results of the Sixth Administrative Review was, in all other respects upheld.

Dated: May 26, 2005.

Caratina L. Alston,

U.S. Secretary, NAFTA Secretariat.