International Trade Administration, North American Free-Trade Agreement (NAFTA), Article 1904 Binational Panel Reviews, 34087-34088 [E5-3015]

Agencies

• DEPARTMENT OF COMMERCE
• International Trade Administration

[Federal Register Volume 70, Number 112 (Monday, June 13, 2005)]
[Notices]
[Pages 34087-34088]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E5-3015]


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DEPARTMENT OF COMMERCE

International Trade Administration


International Trade Administration, 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.

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SUMMARY: On June 7, 2005 the binational panel issued its decision in 
the review of the injury determination made by the International Trade 
Commission, respecting Hard Red Spring Wheat from Canada Final Injury 
Determination, Secretariat File No. USA-CDA-2003-1904-06. The 
binational panel remanded the decision to the Commission with one 
partial dissenting opinion. 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, (202) 482-5438.

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 remanded the International Trade 
Commission's final injury determination respecting Hard Red Spring 
Wheat from Canada with one partial dissenting opinion. The panel 
remanded the opinion as follows:
    1. Explain why record evidence regarding pre- and post-petition 
prices is not sufficient to rebut the statutory presumption of 19 
U.S.C. 1677(7)(I), insofar as post-petition price data is concerned. If 
the Commission finds that such information is sufficient to rebut the 
presumption, then it must make a new determination on all factors that 
gives full weight to the evidence previously discounted.
    2. Explain how post-petition volume and price data were factored 
into the Commission's final determination and provide analysis that 
gives such data some weight, rather than no weight, in its 
determination. If the Commission finds that either category of evidence 
is not discounted, then it must make a new determination that gives 
such undiscounted evidence full weight in its analysis of the relevant 
factor.
    3. Explain how instances of underselling caused adverse trends in 
price or industry performance in the domestic industry.
    4. Analyze how increased volumes of the subject imports caused the 
domestic industry to suffer depressed prices taking into account all 
contradictory evidence and render a new determination based on the 
analysis.
    5. Provide a new analysis of the impact of subject imports on the 
domestic industry, explaining and analyzing (a) how fluctuating yields 
may leave the domestic industry vulnerable as a result of price 
depression of the subject imports, (b) how yield fluctuations were 
accounted for, and (c) why yields per acre and farm prices are the most 
relevant factors in determining the financial state of the domestic 
industry.
    6. Provide detail as to which prices have been used by the 
Commission in its analysis and whether prices have been used that are 
not at the level of sales to domestic milling operations. Having regard 
to the substantial evidence requirements discussed above, if prices 
that are not at the level of sales to domestic milling operations have 
been used, the Commission must explain how such prices show sales in 
competition with sales of imports at the same level of trade, or how 
they have been adjusted to reflect the same trade level as imports. If 
price comparisons could not be made at the same level of trade, the 
Commission must explain what link exists between prices at the 
different levels that supports the conclusions of the Commission. If 
some prices chosen do not involve comparisons at the same level of 
trade and cannot be adjusted, the Commission is instructed to reject 
them and reconsider its analysis of price underselling.

[[Page 34088]]

    7. Examine the economic conditions of the grain trading companies 
and elevators to explain how the effect of imports was passed upstream 
to the farmers.
    8. Examine the exports of domestically-produced HRS wheat and 
explain how the Commission has found injury by reason of the subject 
imports, rather than by reason of competition in third-country markets.
    9. Analyze and explain how average farm prices for HRS wheat are 
based on the outcome of downstream transactions, and subject imports 
are large enough to impact HRS wheat prices on the futures market of 
the MGE, specifically taking into account the proprietary information 
found at page 56 of the CWB's Brief.
    The Commission is to provide the determination on remand within 90 
days of the panel decision or not later than September 6, 2005.

    Dated: June 7, 2005.
Caratina L. Alston,
U.S. Secretary, NAFTA Secretariat.
[FR Doc. E5-3015 Filed 6-10-05; 8:45 am]
BILLING CODE 3510-GT-P