E5-4411. North American Free-Trade Agreement, Article 1904 NAFTA Panel Reviews; Notice of Completion of the Extraordinary Challenge Committee

AGENCY:

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

ACTION:

Notice of decision and completion of the Extraordinary Challenge Committee.

SUMMARY:

On August 10, 2005, the Extraordinary Challenge Committee (ECC) issued its decision in the matter of Certain Softwood Lumber Products from Canada, Secretariat File No. ECC-2004-1904-01USA.

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).

Background Information: On November 24, 2004, the Office of the United States Trade Representative filed a Request for an Extraordinary Challenge Committee to review the binational NAFTA Panel decisions of September 5, 2003, April 19, 2004 and August 31, 2004 in the matter of Certain Softwood Lumber Products from Canada—Final Affirmative Threat of Material Injury Determination. These determinations were published in the Federal Register. The NAFTA Secretariat assigned Secretariat File Number ECC-2004-1904-01USA to this request.

Committee Decision: (a) The Panel did not manifestly exceed its powers, authority or jurisdiction in refusing to permit the Commission to reopen the record in preparing its responses, in setting the time limits within which the Commission had to respond to Panel Decision II, or in ordering the Commission to enter a negative threat determination;

(b) Except on the issue of export orientation, the Panel did not exceed its powers, authority or jurisdiction by failing to apply the appropriate standard of review;

(c) On the issue of export orientation, the Panel's failure to apply the appropriate standard of review was not material; and

(d) The conduct of Panelist Mastriani did not create a reasonable apprehension of bias.

In light of these conclusions (except with regard to the Panel's finding of no substantial evidence on the finding on issue export orientation), it is not necessary for us to determine whether, if the Panel had committed any of the errors alleged, they would have been material to the Panel's decision or threatened the integrity of the binational panel review process.

Accordingly, pursuant to NAFTA Annex 1904.13, this challenge is denied and the challenged decision of the Panel stands affirmed.

The Committee Members are hereby discharged from their duties effective August 11, 2005.

Dated: August 10, 2005.

Caratina L. Alston,

United States Secretary, NAFTA Secretariat.