03-19820. International Trade Administration, North American Free Trade Agreement, Article 1904 NAFTA Panel Reviews; Notice of Panel Decision

AGENCY:

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

ACTION:

Notice of panel decision.

SUMMARY:

On July 17, 2003, the binational panel issued its decision in the review of the final results of the antidumping duty determination made by the International Trade Administration (ITA) respecting Certain Softwood Lumber Products from Canada (Secretariat File No. USA-CDA-2002-1904-02) affirmed in part and remanded in part the determination of the Department of Commerce. The Department will return the determination on remand no later than September 15, 2003. A copy of the complete panel decision is available from 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 the other 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).

Panel Decision: On July 17, 2003, the Binational Panel affirmed in part and remanded in part the Department of Commerce's final antidumping duty determination. The following issues were remanded to the Department:

1. To explain the factual background of Commerce's determination that, for purposes of determining Constructed Value (CV) profit, the “foreign like product” should be defined as each Canadian Respondent's aggregate sales of subject merchandise during the period of investigation was reasonable and in accordance with law;

2. To re-allocate joint production costs using a value-based allocation methodology which takes into account dimensional differences between different jointly produced softwood lumber products;

3. To make an adjustment pursuant to 19 U.S.C. 1677b(a)(6)(c)(ii) to reflect dimensional differences between different softwood lumber products being compared;

4. To exclude exports made by Scieries Saguenay Ltee. (SSL) from the final LTFV determination rendered in respect of Abitibi-Consolidated Inc.;

5. To exclude from the cost of production and constructed value of softwood lumber products produced during the period of investigation by Abitibi the costs of redemption of stock options issued to executives of Donohue, Inc.;

6. To treat “trim blocks” produced by Abitibi Inc. as subject merchandise rather than by-products, and to allocate production costs to the trim blocks produced by Abitibi during the period of the investigation;

7. To explain the agency's reason for determining why, based upon an examination of the entire record, general and administrative expenses incurred in production of softwood lumber by Tembec Inc. according to parent company consolidated financial statements is reasonable and lawful consistent with the agency's obligation, set out at 19 U.S.C. 1677b(b)(3)(B), to calculate such expenses “based on actual data pertaining to production and sales of the foreign like product';

8. To explain why Commerce's final determination concerning Tembec's credit expenses does not contain a clerical error with respect to programming language used to make currency conversions; or, if the final determination does contain such an error, to identify and correct the error;

9. To explain why Commerce's decision to use Tembec's internal prices for wood chips was representative of the cost of producing such wood chips, and why such prices constituted a reasonable and permissible basis for calculating an offset to Tembec's production costs;

10. To consider the claims of West Fraser Mills that Commerce erred in adjusting the offset to production costs resulting from West Fraser's by-product sales of wood chips to unaffiliated purchasers in British Columbia during the period of investigation, and particularly, to consider whether the timing of West Fraser's wood chip sales to unaffiliated parties during the early part of the period of investigation, and the existence of a long term contract, cause those sales to be not fairly representative of West Fraser's wood chip prices during the POI;

11. To provide a complete explanation of Commerce's decision that finger-jointed flangestock (FJF) does not constitute a separate “class or kind” of merchandise for purposes of this investigation; and in so doing, to explain how the agency applied each of the Diversified Products factors to its consideration of FJF, the determinations reached with respect to each such factor, and how the agency weighed these factors in reaching its determination; and

12. To provide a complete explanation of Commerce's determination not to treat square-end bed frame components as a separate “class or kind” of merchandise for purposes of this investigation; and in so doing, to explain how the agency applied each of the Diversified Products factors to its consideration of square-end bed frame components, and how the agency weighed these factors in reaching its determination; and

13. To publish revised less than fair value (LTFV) margins for the investigated Respondents, including a revised “all others” rate, as determined after carrying out the above remand instructions.

Commerce was directed to issue it's determination on remand within 60 days of the issuance of the decision or not later than September 15, 2003.

Dated: July 28, 2003.

Caratina L. Alston,

United States Secretary, NAFTA Secretariat.