E5-3551. 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 June 24, 2005 the binational panel issued its decision in the review of the five year review made by the International Trade Commission, respecting Gray Portland Cement and Clinker from Mexico, NAFTA Secretariat File Number USA-MEX-2000-1904-10. The binational panel affirmed in part and remanded in part the International Trade Commission'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 Commission's determination respecting Gray Portland Cement and Clinker from Mexico. The panel remanded on the following issues:

1. On remand the Commission is to apply the “probable” or “more likely than not” standard announced by the CIT in Siderca when making its determination regarding likely volume, likely price effects, and likely impact on the industry.

2. With regard to the likely volume of subject imports if the antidumping duty order is revoked, the Commission is to (a) explain how it is probable that subject imports would increase if the antidumping duty order is revoked, and (b) render a complete analysis of how the various third-country antidumping duty orders would affect the likely volume of subject imports to the United States.

3. With regard to the likely price effects of subject imports on the industry if the order is revoked, the Commission is to (a) explain the price implications of revocation of the antidumping duty order with sufficient clarity to show how the record supports the Commission findings that revocation of the order would be likely to lead to significant negative price effects on the domestic industry, (b) explain how revocation of the antidumping duty order would be likely to lead to significant price underselling by subject imports of the domestic product, and (c) explain how subject imports are likely to enter the United States at prices that otherwise would have a significant price depressing or suppressing effect on the domestic product.

4. With regard to the likely impact on the domestic industry if the antidumping duty order is revoked, the Commission is to (a) explain how it reached the conclusion that the order should remain in place in order to protect the highly-profitable, regional industry, given the continuing solid demand in the region and a substantial increase in non-Mexican cement imports; (b) explain how it reached the conclusion that the regional industry would be likely to suffer material injury, having found that the regional industry is not in a vulnerable states; and (c) explain how the decreasing market share of the regional industry, due to a substantial increase in demand, was not attributed to imports of non-Mexican cement.

5. With regard to the Commission's conclusion that the producers of all or almost all of the production in the Southern Tier region would likely suffer material injury be reason of the dumped imports if the order is revoked, the Commission is to (a) explain why producers of all or almost all of the production in the Southern Tier region would likely be materially injured if the order is revoked, (b) explain what percentage of regional production would likely suffer material injury, and (c) explain what its aggregate and individual plant analyses consisted of and what anomalies, if any, the individual plant analysis revealed.

6. The Commission is to fully evaluate the information concerning the proposed Southdown acquisition.

The Commission was directed to issue it's determination on remand within 60 days of the issuance of the panel decision or not later than August 23, 2005.

The Panel affirmed the Commission's determination in all other respects.

Dated: June 30, 2005.

Caratina L. Alston,

U.S. Secretary, NAFTA Secretariat.