North American Free Trade Agreement: Amendments to Rules of Procedure for Article 1904 Binational Panel Reviews, 19458-19474 [E8-7621]

Download as PDF 19458 Federal Register / Vol. 73, No. 70 / Thursday, April 10, 2008 / Notices FOR FURTHER INFORMATION CONTACT: Signed in Washington, DC, on April 4, 2008. Arlen Lancaster, Vice President, Commodity Credit Corporation, Chief, Natural Resources Conservation Service. [FR Doc. E8–7629 Filed 4–9–08; 8:45 am] BILLING CODE 3410–16–P DEPARTMENT OF COMMERCE International Trade Administration [Docket Number: 080403512–8513–01] North American Free Trade Agreement: Amendments to Rules of Procedure for Article 1904 Binational Panel Reviews North American Free Trade Agreement, NAFTA Secretariat, United States Section, International Trade Administration, Department of Commerce. ACTION: Amendments to Rules of Procedure for NAFTA Article 1904 Binational Panel Reviews. mstockstill on PROD1PC66 with NOTICES AGENCY: SUMMARY: Canada, Mexico and the United States have amended the rules of procedure for Article 1904 binational panel reviews. These rules apply to binational panel proceedings conducted pursuant to Article 1904 of the North American Free Trade Agreement (‘‘NAFTA’’ or ‘‘the Agreement’’). These amendments are intended to improve the panel review process under Chapter Nineteen of NAFTA in order to increase its efficiency and effectiveness. DATES: Effective Date: These amendments to the rules of procedure shall apply to all binational panel proceedings commenced by a Request for Panel Review filed with the NAFTA Secretariat, United States Section, on or after April 10, 2008. FOR FURTHER INFORMATION CONTACT: Michele Lynch, Senior Counsel, or William Isasi, Senior Attorney, U.S. Department of Commerce, Office of the General Counsel, Office of Chief Counsel for Import Administration, HCHB Room 3622, 1401 Constitution Ave., NW., Washington, DC 20230, (202) 482–2879 or (202) 482–4339, respectively. VerDate Aug<31>2005 16:48 Apr 09, 2008 Jkt 214001 Amendments to NAFTA Rules of Procedure for Article 1904 Binational Panel Reviews SUPPLEMENTARY INFORMATION: Dwayne Howard, Branch Chief— Stewardship Programs, Financial Assistance Programs Division, NRCS, P.O. Box 2890, Washington, DC 20013– 2890, telephone: (202) 720–1845; fax: (202) 720–4265. Submit e-mail to: dwayne.howard@wdc.usda.gov, Attention: Conservation Security Program. Background Chapter Nineteen of NAFTA establishes a mechanism for replacing judicial review of final antidumping and countervailing duty determinations involving imports from Canada, Mexico or the United States with review by independent binational panels. If requested, these panels will review final determinations to determine whether they are consistent with the antidumping or countervailing duty law of the importing country. Title IV of the North American Free Trade Agreement Implementation Act of 1993, Public Law No. 103–182, 107 Stat. 2057, amended United States law to implement Chapter Nineteen of the Agreement. See, e.g., 19 U.S.C. 3431 et. seq.; see also 19 CFR 356.1, et. seq. The NAFTA Rules of Procedure for Article 1904 Binational Panel Reviews are intended to give effect to the panel review provisions of Chapter Nineteen of the Agreement by setting forth the procedures for commencing, conducting, and completing panel reviews. Originally published in 1994, these rules were the result of negotiations among Canada, Mexico, and the United States in compliance with the terms of the Agreement. See North American Free Trade Agreement: Rules of Procedure for Article 1904 Binational Panel Reviews, 59 Fed. Reg. 8685 (Feb. 23, 1994). In August 2007, Canada, Mexico, and the United States, through the NAFTA Free Trade Commission, agreed to amend the NAFTA Rules of Procedure for Article 1904 Binational Panel Reviews. These amendments provide technical changes to the rules based on changes in the governments of Canada and Mexico. These amendments also provide technical changes based on the experience of the NAFTA Secretariats and participants in the binational review process. In addition and consistent with the agreement reached through the NAFTA Free Trade Commission, these amendments require a participant other than an individual (e.g., corporate persons) to be represented by a counsel of record. The NAFTA Rules of Procedure for Article 1904 Binational Panel Reviews are amended as described below. Following a description of the amendments is a reproduction of the rules incorporating these amendments. These rules as well as other NAFTA Chapter 19 dispute resolution provisions are also available at: https:// www.nafta-sec-alena.org. PO 00000 Frm 00005 Fmt 4703 Sfmt 4703 Amendments to Rule 3 Rule 3 is amended in light of changes to the governments of Canada and Mexico. Rule 3 is amended as follows: The definitions in rule 3 of ‘‘privileged information’’, ‘‘Proprietary Information Access Application’’ and ‘‘Proprietary Information Access Order’’ are amended by replacing the words ´ ‘‘Secretaria de Comercio y Fomento ´ Industrial’’ with ‘‘Secretarıa de ´ Economıa.’’ The definition in rule 3 of ‘‘Deputy Minister’’ is repealed. The following definition is added to rule 3 following the definition of ‘‘Agreement’’: ‘‘ ‘CBSA President’ means the President of the Canada Border Services Agency appointed under subsection 7(1) of the Canada Border Services Agency Act, or the successor thereto, and includes any person authorized to perform a power, duty or function of the CBSA President under the Special Import Measures Act, as amended; ’’ and The words ‘‘Deputy Minister’’ are replaced by the words ‘‘CBSA President’’ in the definitions in rule 3 of ‘‘Proprietary Information Access Application’’, ‘‘Proprietary Information Access Order’’ and ‘‘service list’’. Amendments to Rule 11 Rule 11 is amended to clarify which documents the responsible Secretary shall forward to the other involved Secretary, and to clarify that absent an explicit written request, only nonprivileged and non-proprietary documents will be forwarded. Rule 11 is amended as follows: 11. (1) The responsible Secretary shall forward to the other involved Secretary all orders and decisions issued by the panel. The responsible Secretary shall also forward to the other involved Secretary a copy of all documents filed in the office of the responsible Secretary that are not clearly marked as privileged or proprietary pursuant to subrules 44(2) and 56(1)(a). (2) If an involved Secretariat makes a written request to the responsible Secretary requesting any privileged or proprietary documents, the responsible Secretary shall forward such documents to the involved Secretariat forthwith. Amendments to Rule 13 Rule 13 is amended in light of changes to the governments of Canada and Mexico. Rule 13 is amended as follows: The words in subrule 13(1) ´ ‘‘Secretaria de Comercio y Fomento E:\FR\FM\10APN1.SGM 10APN1 Federal Register / Vol. 73, No. 70 / Thursday, April 10, 2008 / Notices ´ Industrial’’ are replaced by ‘‘Secretarıa ´ de Economıa’’. The words in subrule 13(1) ‘‘Deputy Minister’’ are replaced by the words ‘‘CBSA President’’. Amendments to Rule 21 Rule 21 is amended to clarify that participants other than individuals (e.g., corporate persons) must be represented by a counsel of record. Rule 21 is amended as follows: 21. * * * (3) A participant other than an individual must be represented by a counsel of record. Amendments to Rule 22 Rule 22 is amended to clarify that Information Access Orders are exempt from the general multiple copy filing requirements found in Rule 22(1). Rule 22 is amended as follows: 22. (1) Subject to subrule 46(1), rule 47 and subrules 50(1), 52(3) and 73(2)(a), no document is filed with the Secretariat until one original and eight copies of the document are received by the responsible Secretariat during its normal business hours within the time period fixed for filing. Amendments to Rule 50 Rule 50 is amended to clarify that in filing an Information Access Order with the responsible Secretariat, parties should comply with the applicable regulations of the administering authority. Rule 50 is amended as follows: 50. (1) Where a proprietary Information Access Order is issued to a person in a panel review, the person shall file with the responsible Secretariat, pursuant to the applicable regulations of the investigating authority, a copy of the Proprietary Information Access Order. mstockstill on PROD1PC66 with NOTICES Amendments to Rule 71 Rule 71 is amended to establish that if a timely complaint is not filed, the responsible Secretariat will issue a notice terminating panel review. Rule 71 is amended as follows: 71. * * * (3) A panel review is deemed to be terminated on the day after the expiration of the limitation period established pursuant to subrule 39(1) if no Complaint has been filed in a timely manner. The responsible Secretariat shall issue a Notice of Completion of Panel Review. Amendments to Rule 73 Rule 73 is amended to clarify the number of copies of a remand Index and non-privileged items on the Index that the investigating authority shall file VerDate Aug<31>2005 16:48 Apr 09, 2008 Jkt 214001 with the responsible Secretariat. In addition, Rule 73 is amended to clarify that the investigating authority must serve the remand Index on the counsel of record or, absent a counsel of record, on the participant(s), as well as file proof of that service with the responsible Secretariat. Rule 73 is amended as follows: 73. (2)(a) the investigating authority shall file with the responsible Secretariat two copies of an Index listing each item in the supplementary remand record, together with proof of service of the Index on the counsel of record of each of the participants, or where a participant is not represented by counsel, on the participant, and two copies of each non-privileged item listed in that Index, within five days after the date in which the investigating authority filed the Determination on Remand with the panel; Amendments to Rule 78 Rule 78 is amended to harmonize the NAFTA Rules of Procedure for Article 1904 Binational Panel Reviews with the NAFTA Rules of Procedures for Article 1904 Extraordinary Challenge Committees. This amendment clarifies the effective date of a Notice of Completion of Panel Review when no Request for an Extraordinary Challenge Committee is filed and a panel has not been terminated pursuant to subrule 71(2). Rule 78 is amended as follows: 78. * * * (b) in any other case, on the day after the expiration of the limitation period established pursuant to subrules 37(1) and 37(2)(a) of the NAFTA Extraordinary Challenge Committee Rules. North American Free Trade Agreement Rules of Procedure for Article 1904 Binational Panel Reviews Contents Preamble Rule 1. Short Title 2. Statement of General Intent 3. Definitions and Interpretation Part I—General 6. Duration and Scope of Panel Review 8. Responsibilities of the Secretary 17. Internal Functioning of Panels 19. Computation of Time 21. Counsel of Record 22. Filing, Service and Communications 28. Pleadings and Simultaneous Translation of Panel Reviews in Canada 32. Costs Part II—Commencement of Panel Review 33. Notice of Intent To Commence Judicial Review 34. Request for Panel Review 36. Joint Panel Reviews 39. Complaint 40. Notice of Appearance PO 00000 Frm 00006 Fmt 4703 Sfmt 4703 19459 41. Record for Review Part III—Panels 42. Announcement of Panel 43. Violation of Code of Conduct Part IV—Proprietary and Privileged Information 44. Filing or Service Under Seal 46. Proprietary Information Access Orders 52. Privileged Information 54. Violations of Proprietary Information Access Applications or Orders Part V—Written Proceedings 55. Form and Content of Pleadings 57. Filing of Briefs 58. Failure to File Briefs 59. Content of Briefs and Appendices 60. Appendix to the Briefs 61. Motions Part VI—Oral Proceedings 65. Location 66. Pre-Hearing Conference 67. Oral Argument 68. Subsequent Authorities 69. Oral Proceedings in Camera Part VII—Decisions and Completions of Panel Reviews 70. Orders, Decisions and Terminations 73. Panel Review of Action on Remand 75. Re-examination of Orders and Decisions Part VIII—Completion of Panel Review 81. Stays and Suspensions Schedule—Procedural Forms Preamble The Parties Having regard to Chapter Nineteen of the North American Free Trade Agreement between Canada, the United Mexican States and the United States of America; Acting pursuant to Article 1904.14 of the Agreement; Adopted Rules of Procedure governing all panel reviews conducted pursuant to Article 1904 of the Agreement; and now Adopt the following amended Rules of Procedure, which will take effect in Canada from the date of their publication in the Canada Gazette, in Mexico from the date of their publication in the Diario Oficial de la ´ Federacion, and in the United States from the date of their publication in the Federal Register, for panels requested pursuant to Article 1904(2) of the North American Free Trade Agreement following such publication. Short Title 1. These rules may be cited as the NAFTA Article 1904 Panel Rules. Statement of General Intent 2. These rules are intended to give effect to the provisions of Chapter Nineteen of the Agreement with respect to panel reviews conducted pursuant to Article 1904 of the Agreement and are designed to result in decisions of panels within 315 days after the commencement of the panel review. E:\FR\FM\10APN1.SGM 10APN1 19460 Federal Register / Vol. 73, No. 70 / Thursday, April 10, 2008 / Notices mstockstill on PROD1PC66 with NOTICES The purpose of these rules is to secure the just, speedy and inexpensive review of final determinations in accordance with the objectives and provisions of Article 1904. Where a procedural question arises that is not covered by these rules, a panel may adopt the procedure to be followed in the particular case before it by analogy to these rules or may refer for guidance to rules of procedure of a court that would otherwise have had jurisdiction in the importing country. In the event of any inconsistency between the provisions of these rules and the Agreement, the Agreement shall prevail. Definitions and Interpretation 3. In these rules, ‘‘Agreement’’ means the North American Free Trade Agreement; ‘‘CBSA President’’ means the President of the Canada Border Services Agency appointed under subsection 7(1) of the Canada Border Services Agency Act, or the successor thereto, and includes any person authorized to perform a power, duty or function of the CBSA President under the Special Import Measures Act, as amended; ‘‘Code of Conduct’’ means the code of conduct established by the Parties pursuant to Article 1909 of the Agreement; ‘‘complainant’’ means a Party or interested person who files a Complaint pursuant to rule 39; ‘‘counsel’’ means (a) With respect to a panel review of a final determination made in Canada, a person entitled to appear as counsel before the Federal Court of Canada, (b) With respect to a panel review of a final determination made in Mexico, a person entitled to appear as counsel before the Tribunal Fiscal de la Federacion, and (c) With respect to a panel review of a final determination made in the United States, a person entitled to appear as counsel before a federal court in the United States; ‘‘counsel of record’’ means a counsel referred to in subrule 21(1); ‘‘final determination’’ means, in the case of Canada, a definitive decision within the meaning of subsection 77.01(1) of the Special Import Measures Act, as amended; ‘‘first Request for Panel Review’’ means (a) Where only one Request for Panel Review is filed for review of a final determination, that Request, and (b) Where more than one Request for Panel Review is filed for review of the same final determination, the Request that is filed first; ‘‘government information’’ means VerDate Aug<31>2005 16:48 Apr 09, 2008 Jkt 214001 (a) With respect to a panel review of a final determination made in Canada, information (i) The disclosure of which would be injurious to international relations or national defence or security, (ii) That constitutes a confidence of the Queen’s Privy Council for Canada, or (iii) Contained in government-togovernment correspondence that is transmitted in confidence, (b) With respect to a panel review of a final determination made in Mexico, information the disclosure of which is prohibited under the laws and regulations of Mexico, including (i) Data, statistics and documents referring to national security and strategic activities for scientific and technological development, and (ii) Information contained in government-to-government correspondence that is transmitted in confidence, and (c) With respect to a panel review of a final determination made in the United States, information classified in accordance with Executive Order No. 12065 or its successor; ‘‘interested person’’ means a person who, pursuant to the laws of the country in which a final determination was made, would be entitled to appear and be represented in a judicial review of the final determination; ‘‘investigating authority’’ means the competent investigating authority that issued the final determination subject to review and includes, in respect of the issuance, amendment, modification or revocation of a Proprietary Information Access Order, any person authorized by the investigating authority; ‘‘involved Secretariat’’ means the section of the Secretariat located in the country of an involved Party; ‘‘legal holiday’’ means (a) With respect to the Canadian Section of the Secretariat, every Saturday and Sunday, New Year’s Day (January 1), Good Friday, Easter Monday, Victoria Day, Canada Day (July 1), Labour Day (first Monday in September), Thanksgiving Day (second Monday in October), Remembrance Day (November 11), Christmas Day (December 25), Boxing Day (December 26), any other day fixed as a statutory holiday by the Government of Canada or by the province in which the Section is located and any day on which the offices of the Canadian Section of the Secretariat are officially closed in whole or in part, (b) With respect to the Mexican Section of the Secretariat, every Saturday and Sunday, New Year’s Day (January 1), Constitution Day (February PO 00000 Frm 00007 Fmt 4703 Sfmt 4703 5), Benito Juarez’s Birthday (March 21), Labor Day (May 1), Battle of Puebla (May 5), Independence Day (September 16), Congressional Opening Day (November 1), Revolution Day (November 20), Transmission of the Federal Executive Branch (every six years on December 1), Christmas Day (December 25), any day designated as a statutory holiday by the Federal Laws or, in the case of Ordinary Elections, by the Local Electoral Laws and any day on which the offices of the Mexican Section of the Secretariat are officially closed in whole or in part, and (c) With respect to the United States Section of the Secretariat, every Saturday and Sunday, New Year’s Day (January 1), Martin Luther King’s Birthday (third Monday in January), Presidents’ Day (third Monday in February), Memorial Day (last Monday in May), Independence Day (July 4), Labor Day (first Monday in September), Columbus Day (second Monday in October), Veterans’ Day (November 11), Thanksgiving Day (fourth Thursday in November), Christmas Day (December 25), any day designated as a holiday by the President or the Congress of the United States and any day on which the offices of the Government of the United States located in the District of Columbia or the offices of the United States Section of the Secretariat are officially closed in whole or in part; ‘‘Mexico’’ means the United Mexican States; ‘‘official publication’’ means (a) In the case of the Government of Canada, the Canada Gazette; (b) In the case of the Government of Mexico, the Diario Oficial de la Federacion, and (c) In the case of the Government of United States, the Federal Register; ‘‘panel’’ means a binational panel established pursuant to Annex 1901.2 to Chapter Nineteen of the Agreement for the purpose of reviewing a final determination; ‘‘participant’’ means any of the following persons who files a Complaint pursuant to rule 39 or a Notice of Appearance pursuant to rule 40: (a) A Party, (b) An investigating authority, and (c) An interested person; ‘‘Party’’ means the Government of Canada, the Government of Mexico or the Government of the United States; ‘‘person’’ means ‘‘ (a) An individual, (b) A Party, (c) An investigating authority, (d) A government of a province, state or other political subdivision of the country of a Party, E:\FR\FM\10APN1.SGM 10APN1 mstockstill on PROD1PC66 with NOTICES Federal Register / Vol. 73, No. 70 / Thursday, April 10, 2008 / Notices (e) A department, agency or body of a Party or of a government referred to in paragraph (d), or (f) A partnership, corporation or association; ‘‘pleading’’ means a Request for Panel Review, a Complaint, a Notice of Appearance, a Change of Service Address, a Notice of Motion, a Notice of Change of Counsel of Record, a brief or any other written submission filed by a participant; ‘‘privileged information’’ means (a) With respect to a panel review of a final determination made in Canada, information of the investigating authority that is subject to solicitorclient privilege under the laws of Canada, or that constitutes part of the deliberative process with respect to the final determination, and with respect to which the privilege has not been waived, (b) With respect to a panel review of a final determination made in Mexico, (i) Information of the investigating authority that is subject to attorneyclient privilege under the laws of Mexico, or (ii) Internal communications between officials of the Secretaria de Economia in charge of antidumping and countervailing duty investigations or communications between those officials and other government officials, where those communications constitute part of the deliberative process with respect to the final determination, and (c) With respect to a panel review of a final determination made in the United States, information of the investigating authority that is subject to the attorney-client, attorney work product or government deliberative process privilege under the laws of the United States with respect to which the privilege has not been waived; ‘‘proof of service’’ means (a) With respect to a panel review of a final determination made in Canada or Mexico, (i) An affidavit of service stating by whom the document was served, the date on which it was served, where it was served and the manner of service, or (ii) An acknowledgement of service by counsel for a participant stating by whom the document was served, the date on which it was served and the manner of service and, where the acknowledgment is signed by a person other than the counsel, the name of that person followed by a statement that the person is signing as agent for the counsel, and (b) With respect to a panel review of a final determination made in the United States, a certificate of service in VerDate Aug<31>2005 16:48 Apr 09, 2008 Jkt 214001 the form of a statement of the date and manner of service and of the name of the person served, signed by the person who made service; ‘‘proprietary information’’ means (a) With respect to a panel review of a final determination made in Canada, information referred to in subsection 84(3) of the Special Import Measures Act, as amended, or subsection 45(3) of the Canadian International Trade Tribunal Act, as amended, with respect to which the person who designated or submitted the information has not withdrawn the person’s claim as to the confidentiality of the information, (b) With respect to a panel review of a final determination made in Mexico, informacion confidencial, as defined under article 80 of the Ley de Comercio Exterior and its regulations, and (c) With respect to a panel review of a final determination made in the United States, business proprietary information under section 777(f) of the Tariff Act of 1930, as amended, and any regulations made under that Act; ‘‘Proprietary Information Access Application’’ means (a) With respect to a panel review of a final determination made in Canada, a disclosure undertaking in the prescribed form, which form (i) In respect of a final determination by the CBSA President, is available from the CBSA President, and (ii) In respect of a final determination by the Tribunal, is available from the Tribunal, (b) With respect to a panel review of a final determination made in Mexico, a disclosure undertaking in the prescribed form, which form is available from the Secretaria de Economia, and (c) With respect to a panel review of a final determination made in the United States, a Protective Order Application (i) In respect of a final determination by the International Trade Administration of the United States Department of Commerce, in a form prescribed by, and available from, the International Trade Administration of the United States Department of Commerce, and (ii) In respect of a final determination by the United States International Trade Commission, in a form prescribed by, and available from, the United States International Trade Commission; ‘‘Proprietary Information Access Order’’ means (a) In the case of Canada, a Disclosure Order issued by the CBSA President or the Tribunal pursuant to a Proprietary Information Access Application, (b) in the case of Mexico, a Disclosure Order issued by the Secretaria de PO 00000 Frm 00008 Fmt 4703 Sfmt 4703 19461 Economia pursuant to a Proprietary Information Access Application, and (c) In the case of the United States, a Protective Order issued by the International Trade Administration of the United States Department of Commerce or the United States International Trade Commission pursuant to a Proprietary Information Access Application; ‘‘responsible Secretariat’’ means the section of the Secretariat located in the country in which the final determination under review was made; ‘‘responsible Secretary’’ means the Secretary of the responsible Secretariat; ‘‘Secretariat’’ means the Secretariat established pursuant to Article 2002 of the Agreement; ‘‘Secretary’’ means the Secretary of the United States Section of the Secretariat, the Secretary of the Mexican Section of the Secretariat or the Secretary of the Canadian Section of the Secretariat and includes any person authorized to act on behalf of that Secretary; ‘‘service address’’ means (a) With respect to a Party, the address filed with the Secretariat as the service address of the Party, including any facsimile number submitted with that address, (b) With respect to a participant other than a Party, the address of the counsel of record for the person, including any facsimile number submitted with that address or, where the person is not represented by counsel, the address set out by the participant in a Request for Panel Review, Complaint or Notice of Appearance as the address at which the participant may be served, including any facsimile number submitted with that address, or (c) Where a Change of Service Address has been filed by a Party or participant, the address set out as the new service address in that form, including any facsimile number submitted with that address; ‘‘service list’’ means, with respect to a panel review, (a) Where the final determination was made in Canada, a list comprising the other involved Party and (i) In the case of a final determination made by the CBSA President, persons named on the list maintained by the CBSA President who participated in the proceedings before the CBSA President and who were exporters or importers of goods of the country of the other involved Party or complainants referred to in section 34 of the Special Import Measures Act, as amended, and (ii) In the case of a final determination made by the Tribunal, persons named on the list maintained by the Tribunal E:\FR\FM\10APN1.SGM 10APN1 19462 Federal Register / Vol. 73, No. 70 / Thursday, April 10, 2008 / Notices of parties in the proceedings before the Tribunal who were exporters or importers of goods of the country of the other involved Party, complainants referred to in section 31 of the Special Import Measures Act, as amended, or other domestic parties whose interest in the findings of the Tribunal is with respect to goods of the country of the other involved Party, and (b) Where the final determination was made in Mexico or the United States, the list, maintained by the investigating authority of persons who have been served in the proceedings leading to the final determination; ‘‘Tribunal’’ means the Canadian International Trade Tribunal or its successor and includes any person authorized to act on its behalf; ‘‘United States’’ means the United States of America. 4. The definitions set forth in Article 1911 of the Agreement and Annex 1911 to Chapter Nineteen of the Agreement are hereby incorporated into these rules. 5. Where these rules require that notice be given, it shall be given in writing. Part I—General Duration and Scope of Panel Review 6. A panel review commences on the day on which a first Request for Panel Review is filed with the Secretariat and terminates on the day on which a Notice of Completion of Panel Review is effective. 7. A panel review shall be limited to (a) The allegations of error of fact or law, including challenges to the jurisdiction of the investigating authority, that are set out in the Complaints filed in the panel review; and (b) Procedural and substantive defenses raised in the panel review. mstockstill on PROD1PC66 with NOTICES Responsibilities of the Secretary 8. The normal business hours of the Secretariat, during which the offices of the Secretariat shall be open to the public, shall be from 9 a.m. to 5 p.m. on each weekday other than (a) In the case of the United States Section of the Secretariat, legal holidays of that Section; (b) In the case of the Canadian Section of the Secretariat, legal holidays of that Section; and (c) In the case of the Mexican Section of the Secretariat, legal holidays of that Section. 9. The responsible Secretary shall provide administrative support for each panel review and shall make the arrangements necessary for the oral proceedings and meetings of each panel, VerDate Aug<31>2005 16:48 Apr 09, 2008 Jkt 214001 including, if required, interpreters to provide simultaneous translation. 10. (1) Each Secretary shall maintain a file for each panel review. Subject to subrules (3) and (4), the file shall be comprised of either the original or a copy of all documents filed, whether or not filed in accordance with these rules, in the panel review. (2) The file number assigned to a first Request for Panel Review shall be the Secretariat file number for all documents filed or issued in that panel review. All documents filed shall be stamped by the Secretariat to show the date and time of receipt. (3) Where, after notification of the selection of a panel pursuant to rule 42, a document is filed that is not provided for in these rules or that is not in accordance with the rules, the responsible Secretary may refer the unauthorized filing to the chairperson of the Panel for instructions, provided such authority has been delegated by the Panel to its chairperson pursuant to rule 17. (4) On a referral referred to in subrule (3), the chairperson may instruct the responsible Secretary to (a) Retain the document in the file, without prejudice to a motion to strike such document; or (b) Return the document to the person who filed the document, without prejudice to a motion for leave to file the document. 11. (1) The responsible Secretary shall forward to the other involved Secretary all orders and decisions issued by the panel. The responsible Secretary shall also forward to the other involved Secretary a copy of all documents filed in the office of the responsible Secretary that are not clearly marked as privileged or proprietary pursuant to subrules 44(2) and 56(1)(a). (2) If an involved Secretariat makes a written request to the responsible Secretary requesting any privileged or proprietary documents, the responsible Secretary shall forward such documents to the involved Secretariat forthwith. 12. Where under these rules a responsible Secretary is required to publish a notice or other document in the official publications of the involved Parties, the responsible Secretary and the other involved Secretary shall cause the notice or other document to be published in the official publication of the country in which that section of the Secretariat is located. 13. (1) Each Secretary and every member of the staff of the Secretariat shall, before taking up duties, file a Proprietary Information Access Application with each of the CBSA President, the Tribunal, the Secretaria PO 00000 Frm 00009 Fmt 4703 Sfmt 4703 de Economia, the International Trade Administration of the United States Department of Commerce and the United States International Trade Commission. (2) Where a Secretary or a member of the staff of the Secretariat files a Proprietary Information Access Application in accordance with subrule (1), the appropriate investigating authority shall issue to the Secretary or to the member a Proprietary Information Access Order. 14. (1) The responsible Secretary shall file with the investigating authority one original, and any additional copies required by the investigating authority, of every Proprietary Information Access Application and any amendments or modifications thereto, filed by a panelist, assistant to a panelist, court reporter, interpreter or translator pursuant to rule 47. (2) The responsible Secretary shall ensure that every panelist, assistant to a panelist, court reporter, interpreter and translator, before taking up duties in a panel review, files with the responsible Secretariat a copy of a Proprietary Information Access Order. 15. Where a document containing proprietary information or privileged information is filed with the responsible Secretariat, each involved Secretary shall ensure that (a) The document is stored, maintained, handled and distributed in accordance with the terms of any applicable Proprietary Information Access Order; (b) The inner wrapper of the document is clearly marked to indicate that it contains proprietary information or privileged information; and (c) Access to the document is limited to officials of, and counsel for, the investigating authority whose final determination is under review and (i) In the case of proprietary information, the person who submitted the proprietary information to the investigating authority or counsel for that person and any persons who have been granted access to the information under a Proprietary Information Access Order with respect to the document, and (ii) In the case of privileged information filed in a panel review of a final determination made in the United States, persons with respect to whom the panel has ordered disclosure of the privileged information under rule 52, if the persons have filed with the responsible Secretariat a Proprietary Information Access Order with respect to the document. 16. (1) Each Secretary shall permit access by any person to the information in the file in a panel review that is not E:\FR\FM\10APN1.SGM 10APN1 Federal Register / Vol. 73, No. 70 / Thursday, April 10, 2008 / Notices proprietary information or privileged information and shall provide copies of that information on request and payment of an appropriate fee. (2) Each Secretary shall, in accordance with subrule 15(c) and the terms of the applicable Proprietary Information Access Order or order of the panel, (a) Permit access to proprietary information or privileged information in the file of a panel review; and (b) On payment of an appropriate fee, provide a copy of the information referred to in subrule (a). (3) No document filed in a panel review shall be removed from the offices of the Secretariat except in the ordinary course of the business of the Secretariat or pursuant to the direction of a panel. Internal Functioning of Panels 17. (1) A panel may adopt its own internal procedures, not inconsistent with these rules, for routine administrative matters. (2) A panel may delegate to its chairperson (a) The authority to accept or reject filings in accordance with subrule 10(4); and (b) The authority to grant motions consented to by all participants, other than a motion filed pursuant to rule 20 or 52, a motion for remand of a final determination or a motion that is inconsistent with an order or decision previously made by the panel. (3) A decision of the chairperson referred to in subrule (2) shall be issued as an order of the panel. (4) Subject to subrule 26(b), meetings of a panel may be conducted by means of a telephone conference call. 18. Only panelists may take part in the deliberations of a panel, which shall take place in private and remain secret. Staff of the involved Secretariats and assistants to panelists may be present by permission of the panel. mstockstill on PROD1PC66 with NOTICES Computation of Time 19. (1) In computing any time period fixed in these rules or by an order or decision of a panel, the day from which the time period begins to run shall be excluded and, subject to subrule (2), the last day of the time period shall be included. (2) Where the last day of a time period computed in accordance with subrule (1) falls on a legal holiday of the responsible Secretariat, that day and any other legal holidays of the responsible Secretariat immediately following that day shall be excluded from the computation. 20. (1) A panel may extend any time period fixed in these rules if VerDate Aug<31>2005 16:48 Apr 09, 2008 Jkt 214001 (a) Adherence to the time period would result in unfairness or prejudice to a participant or the breach of a general legal principle of the country in which the final determination was made; (b) The time period is extended only to the extent necessary to avoid the unfairness, prejudice or breach; (c) The decision to extend the time period is concurred in by four of the five panelists; and (d) In fixing the extension, the panel takes into account the intent of the rules to secure just, speedy and inexpensive reviews of final determinations. (2) A participant may request an extension of time by filing a Notice of Motion no later than the tenth day prior to the last day of the time period. Any response to the Notice of Motion shall be filed no later than seven days after the Notice of Motion is filed. (3) A participant who fails to request an extension of time pursuant to subrule (2) may file a notice of motion for leave to file out of time, which shall include reasons why additional time is required and why the participant has failed to comply with the provisions of subrule (2). (4) The panel will normally rule on such a motion before the last day of the time period which is the subject of the motion. Counsel of Record 21. (1) A counsel who signs a document filed pursuant to these rules on behalf of a participant shall be the counsel of record for the participant from the date of filing until a change is effected in accordance with subrule (2). (2) A participant may change its counsel of record by filing with the responsible Secretariat a Notice of Change of Counsel of Record signed by the new counsel, together with proof of service on the former counsel and other participants. (3) A participant other than an individual must be represented by a counsel of record. Filing, Service and Communications 22. (1) Subject to subrule 46(1), rule 47 and subrules 50(1), 52(3) and 73(2)(a), no document is filed with the Secretariat until one original and eight copies of the document are received by the responsible Secretariat during its normal business hours and within the time period fixed for filing. (2) The responsible Secretariat shall accept, date and time stamp and place in the appropriate file every document submitted to the responsible Secretariat. (3) Receipt, date and time stamping or placement in the file of a document by PO 00000 Frm 00010 Fmt 4703 Sfmt 4703 19463 the responsible Secretariat does not constitute a waiver of any time period fixed for filing or an acknowledgement that the document has been filed in accordance with these rules. 23. The responsible Secretary shall be responsible for the service of (a) Notices of Intent to Commence Judicial Review and Complaints on Each Party; (b) Requests for Panel Review on the Parties, the investigating authority and the persons listed on the service list; and (c) Notices of Appearance, Proprietary Information Access Orders granted to panelists, assistants to panelists, court reporters, interpreter or translators and any amendments or modifications thereto or notices of revocation thereof, decisions and orders of a panel, Notices of Final Panel Action and Notices of Completion of Panel Review on the participants. 24. (1) Subject to subrules (4) and (5), all documents filed by a participant, other than the administrative record, any supplementary remand record and any document required by rule 23 to be served by the responsible Secretary, shall be served by the participant on the counsel of record of each of the other participants, or where a participant is not represented by counsel, on the participant. (2) A proof of service shall appear on, or be affixed to, all documents referred to in subrule (1). (3) Where a document is served by expedited delivery courier or expedited mail service, the date of service set out in the affidavit of service or certificate of service shall be the day on which the document is consigned to the expedited delivery courier or expedited mail service. (4) A document containing proprietary information or privileged information shall be filed and served under seal in accordance with rule 44, and shall be served only on (a) The investigating authority; and (b) Participants who have been granted access to the proprietary information or privileged information under a Proprietary Information Access Order or an order of the panel. (5) A complainant shall serve a Complaint on the investigating authority and on all persons listed on the service list. 25. Subject to subrule 26(a), a document may be served by (a) Delivering a copy of the document to the service address of the participant; (b) Sending a copy of the document to the service address of the participant by facsimile transmission or by expedited delivery courier or expedited mail E:\FR\FM\10APN1.SGM 10APN1 19464 Federal Register / Vol. 73, No. 70 / Thursday, April 10, 2008 / Notices Pleadings and Simultaneous Translation of Panel Reviews in Canada mstockstill on PROD1PC66 with NOTICES service, such as express mail in the United States or Priority Post in Canada; or (c) Personal service on the participant. 26. Where proprietary information or privileged information is disclosed in a panel review to a person pursuant to a Proprietary Information Access Order, the person shall not (a) File, serve or otherwise communicate the proprietary information or privileged information by facsimile transmission; or (b) Communicate the proprietary information or privileged information by telephone. 27. Service on an investigating authority does not constitute service on a Party and service on a Party does not constitute service on an investigating authority. any order or decision or any reasons therefor. (4) No order or decision is invalid by reason only that it was not made or issued in both English and French. 31. (1) Any oral proceeding conducted in both English and French shall be translated simultaneously. (2) Where a participant requests simultaneous translation of oral proceedings in a panel review, the request shall be made as early as possible in the panel review and preferably at the time of filing a Complaint or Notice of Appearance. (3) Where the chairperson of a panel is of the opinion that there is a public interest in the panel review, the chairperson may direct the responsible Secretary to arrange for simultaneous translation of any of the oral proceedings in the panel review. Costs 28. Rules 29 to 31 apply with respect to a panel review of a final determination made in Canada. 29. Either English or French may be used by any person or panelist in any document or oral proceeding. 30. (1) Subject to subrule (2), any order or decision including the reasons therefor, issued by a panel shall be made available simultaneously in both English and French where (a) In the opinion of the panel, the order or decision is in respect of a question of law of general public interest or importance; or (b) The proceedings leading to the issuance of the order or decision were conducted in whole or in part in both English and French. (2) Where (a) An order or decision issued by a panel is not required by subrule (1) to be made available simultaneously in English and French, or (b) An order or decision is required by subrule (1)(a) to be made available simultaneously in both English and French but the panel is of the opinion that to make the order or decision available simultaneously in both English and French would occasion a delay prejudicial to the public interest or result in injustice or hardship to any participant, the order or decision, including the reasons therefor, shall be issued in the first instance in either English or French and thereafter at the earliest possible time in the other language, each version to be effective from the time the first version is effective. (3) Nothing in subrule (1) or (2) shall be construed as prohibiting the oral delivery in either English or French of VerDate Aug<31>2005 16:48 Apr 09, 2008 Jkt 214001 32. Each participant shall bear the costs of, and those incidental to, its own participation in a panel review. Part II—Commencement of Panel Review Notice of Intent To Commence Judicial Review 33. (1) Where an interested person intends to commence judicial review of a final determination, the interested person shall (a) Where the final determination was made in Canada, publish a notice to that effect in the Canada Gazette and serve a Notice of Intent to Commence Judicial Review on both involved Secretaries and on all persons listed on the service list; and (b) Where the final determination was made in Mexico or the United States, within 20 days after the date referred to in subrule (3)(b) or (c), serve a Notice of Intent to Commence Judicial Review on (i) Both involved Secretaries, (ii) The investigating authority, and (iii) All persons listed on the service list. (2) Where the final determination referred to in subrule (1) was made in Canada, the Secretary of the Canadian Section of the Secretariat shall serve a copy of the Notice of Intent to Commence Judicial Review on the investigating authority. (3) Every Notice of Intent to Commence Judicial Review referred to in subrule (1) shall include the following information (model form provided in the Schedule): (a) The information set out in subrules 55(1)(c) to (f); (b) The title of the final determination for which judicial review is sought, the PO 00000 Frm 00011 Fmt 4703 Sfmt 4703 investigating authority that issued the final determination, the file number assigned by the investigating authority and, if the final determination was published in an official publication, the appropriate citation, including the date of publication; and (c) The date on which the notice of the final determination was received by the other Party if the final determination was not published in an official publication. Request for Panel Review 34. (1) A Request for Panel Review shall be made in accordance with the requirements of (a) Section 77.011 or 96.21 of the Special Import Measures Act, as amended, and any regulations made thereunder; (b) Section 516A of the Tariff Act of 1930, as amended, and any regulations made thereunder; (c) Section 404 of the United States North American Free Trade Agreement Implementation Act and any regulations made thereunder; or (d) Articles 97 and 98 of the Ley de Comercio Exterior and its regulations. (2) A Request for Panel Review shall contain the following information (model form provided in the Schedule): (a) The information set out in subrule 55(1); (b) The title of the final determination for which panel review is requested, the investigating authority that issued the final determination, the file number assigned by the investigating authority and, if the final determination was published in an official publication, the appropriate citation; (c) The date on which the notice of the final determination was received by the other Party if the final determination was not published in an official publication; (d) Where a Notice of Intent to Commence Judicial Review has been served and the sole reason that the Request for Panel Review is made is to require review of the final determination by a panel, a statement to that effect; and (e) The service list, as defined in rule 3. 35. (1) On receipt of a first Request for Panel Review, the responsible Secretary shall (a) Forthwith forward a copy of the Request to the other involved Secretary; (b) Forthwith inform the other involved Secretary of the Secretariat file number; and (c) Serve a copy of the first Request for Panel Review on the persons listed on the service list together with a statement setting out the date on which the Request was filed and stating that E:\FR\FM\10APN1.SGM 10APN1 Federal Register / Vol. 73, No. 70 / Thursday, April 10, 2008 / Notices mstockstill on PROD1PC66 with NOTICES (i) A Party or interested person may challenge the final determination in whole or in part by filing a Complaint in accordance with rule 39 within 30 days after the filing of the first Request for Panel Review. (ii) A Party, an investigating authority or other interested person who does not file a Complaint but who intends to participate in the panel review shall file a Notice of Appearance in accordance with rule 40 within 45 days after the filing of the first Request for Panel Review, and (iii) The panel review will be limited to the allegations of error of fact or law, including challenges to the jurisdiction of the investigating authority, that are set out in the Complaints filed in the panel review and to the procedural and substantive defenses raised in the panel review. (2) On the filing of a first Request for Panel Review, the responsible Secretary shall forthwith publish a notice of that Request in the official publications of the involved Parties, stating that a Request for Panel Review has been received and specifying the date on which the Request was filed, the final determination for which panel review is requested and the information set out in subrule (1)(c). Joint Panel Reviews 36. (1) Subject to rule 37, where (a) A panel is established to review a final determination made under paragraph 41(1)(a) of the Special Import Measures Act, as amended, with respect to particular goods of the United States or Mexico and a Request for Panel Review of a final determination made under subsection 43(1) of that Act with respect to those goods is filed, or (b) A panel is established to review a final determination made under section 705(a) or 735(a) of the Tariff Act of 1930, as amended, with respect to particular goods of Canada or Mexico and a Request for Panel Review of a final determination made under section 705(b) or 735(b) of that Act with respect to those goods is filed, within 10 days after that Request is filed, a participant in the former panel review, the investigating authority in the latter panel review or an interested person listed in the service list of the latter panel review may file a motion in the former panel review requesting that both final determinations be reviewed jointly by one panel. (2) Any participant in the former panel review, the investigating authority in the latter panel review or an interested person listed in the service list of the latter panel review who certifies an intention to become a VerDate Aug<31>2005 16:48 Apr 09, 2008 Jkt 214001 participant in the latter panel review may, within 10 days after a motion is filed under subrule (1), file an objection to the motion, in which case the motion shall be deemed to be denied and separate panel reviews shall be held. 37. (1) Where a panel is established to review a final determination made under paragraph 41(1)(a) of the Special Import Measures Act, as amended, that applies with respect to particular goods of the United States or Mexico and a Request for Panel Review of a negative final determination made under subsection 43(1) of that Act with respect to those goods is filed, the final determinations shall be reviewed jointly by one panel. (2) Where a panel is established to review a final determination made under section 705(a) or 735(a) of the Tariff Act of 1930, as amended, that applies with respect to particular goods of Canada or Mexico and a Request for Panel Review of a negative final determination made under section 705(b) or 735(b) of that Act with respect to those goods is filed, the final determinations shall be reviewed jointly by one panel. 38. (1) Subject to subrules (2) and (3), where final determinations are reviewed jointly pursuant to rule 36 or 37, the time periods fixed under these rules for the review of the final determination made under subsection 43(1) of the Special Import Measures Act, as amended, or section 705(b) or 735(b) of the Tariff Act of 1930, as amended, shall apply to the joint review, commencing with the date fixed for filing briefs pursuant to rule 57. (2) Unless otherwise ordered by a panel as a result of a motion under subrule (3), where final determinations are reviewed jointly pursuant to rule 37, the panel shall issue its decision with respect to the final determination made under subsection 43(1) of the Special Import Measures Act, as amended, or section 705(b) or 735(b) of the Tariff Act of 1930, as amended, and where the panel remands the final determination to the investigating authority and the Determination on Remand is affirmative, the panel shall thereafter issue its decision with respect to the final determination made under paragraph 41(1)(a) of the Special Import Measures Act, as amended, or section 705(a) or 735(a) of the Tariff Act of 1930, as amended. (3) Where the final determinations are reviewed jointly pursuant to rule 36 or 37, any participant may, unilaterally or with the consent of the other participants, request by motion that time periods, other than the time periods referred to in subrule (1), be PO 00000 Frm 00012 Fmt 4703 Sfmt 4703 19465 fixed for the filing of pleadings, oral proceedings, decisions and other matters. (4) A Notice of Motion pursuant to subrule (3) shall be filed no later than 10 days after the date fixed for filing Notices of Appearance in the review of the final determination made under subsection 43(1) of the Special Import Measures Act, as amended, or section 705(b) or 735(b) of the Tariff Act of 1930, as amended. (5) Unless otherwise ordered by a panel, where the panel has not issued a ruling on a motion filed pursuant to subrule (3) within 30 days after the filing of the Notice of Motion, the motion shall be deemed denied. Complaint 39. (1) Subject to subrule (3), any interested person who intends to make allegations of errors of fact or law, including challenges to the jurisdiction of the investigating authority, with respect to a final determination, shall file with the responsible Secretariat, within 30 days after the filing of a first Request for Panel Review of the final determination, a Complaint, together with proof of service on the investigating authority and on all persons listed on the service list. (2) Every Complaint referred to in subrule (1) shall contain the following information (model form provided in the Schedule): (a) The information set out in subrule 55(1); (b) The precise nature of the Complaint, including the applicable standard of review and the allegations of errors of fact or law, including challenges to the jurisdiction of the investigating authority; (c) A statement describing the interested person’s entitlement to file a Complaint under this rule; and (d) Where the final determination was made in Canada, a statement as to whether the complainant (i) Intends to use English or French in pleadings and oral proceedings before the panel, and (ii) Requests simultaneous translation of any oral proceedings. (3) Only an interested person who would otherwise be entitled to commence proceedings for judicial review of the final determination may file a Complaint. (4) Subject to subrule (5), an amended Complaint shall be filed no later than 5 days before the expiration of the time period for filing a Notice of Appearance pursuant to rule 40. (5) An amended Complaint may, with leave of the panel, be filed after the time limit set out in subrule (4) but no later E:\FR\FM\10APN1.SGM 10APN1 19466 Federal Register / Vol. 73, No. 70 / Thursday, April 10, 2008 / Notices mstockstill on PROD1PC66 with NOTICES than 20 days before the expiration of the time period for filing briefs pursuant to subrule 57(1). (6) Leave to file an amended Complaint may be requested of the panel by the filing of a Notice of Motion for leave to file an amended Complaint accompanied by the proposed amended Complaint. (7) Where the panel does not grant a motion referred to in subrule (6) within the time period for filing briefs pursuant to subrule 57(1), the motion shall be deemed to be denied. Notice of Appearance 40. (1) Within 45 days after the filing of a first Request for Panel Review of a final determination, the investigating authority and any other interested person who proposes to participate in the panel review and who has not filed a Complaint in the panel review shall file with the responsible Secretariat a Notice of Appearance containing the following information (model form provided in the Schedule): (a) The information set out in subrule 55(1); (b) A Statement as to the basis for the person’s claim of entitlement to file a Notice of Appearance under this rule; (c) In the case of a Notice of Appearance filed by the investigating authority, any admissions with respect to the allegations set out in the Complaints; (d) A statement as to whether appearance is made (i) In support of some or all of the allegations set out in a Complaint under subrule 39(2)(b), (ii) in opposition to some or all of the allegations set out in a Complaint under subrule 39(2)(b), or (iii) In support of some of the allegations set out in a Complaint under subrule 39(2)(b) and in opposition to some of the allegations set out in a Complaint under subrule 39(2)(b); and (e) Where the final determination was made in Canada, a statement as to whether the person filing the Notice of Appearance. (i) Intends to use English or French in pleadings and oral proceedings before the panel, and (ii) Requests simultaneous translation of any oral proceedings. (2) Any complainant who intends to appear in opposition to allegations set out in a Complaint under subrule 39(2)(b) shall file a Notice of Appearance containing the statements referred to in subrules (1)(b) and (1)(d) (ii) or (iii). Record for Review 41. (1) The investigating authority whose final determination is under VerDate Aug<31>2005 16:48 Apr 09, 2008 Jkt 214001 review shall, within 15 days after the expiration of the time period fixed for filing a Notice of Appearance, file with the responsible Secretariat. (a) Nine copies of the final determination, including reasons for the final determination; (b) Two copies of an Index comprised of a descriptive list of all items contained in the administrative record, together with proof of service of the Index on all participants; and (c) Subject to subrules (3), (4) and (5), two copies of the administrative record. (2) An Index referred to in subrule (1) shall, where applicable, identify those items that contain proprietary information, privileged information or government information by a statement to that effect. (3) Where a document containing proprietary information is filed, it shall be filed under seal in accordance with rule 44. (4) No privileged information shall be filed with the responsible Secretariat unless the investigating authority waives the privilege and voluntarily files the information or the information is filed pursuant to an order of a panel. (5) No government information shall be filed with the responsible Secretariat unless the investigating authority, after having reviewed the government information and, where applicable, after having pursued appropriate review procedures, determines that the information may be disclosed. Part III—Panels Announcement of Panel 42. On the completion of the selection of a panel, the responsible Secretary shall notify the participants and the other involved Secretary of the names of the panelists. Violation of Code of Conduct 43. Where a participant believes that a panelist or an assistant to a panelist is in violation of the Code of Conduct, the participant shall forthwith notify the responsible Secretary in writing of the alleged violation. The responsible Secretary shall promptly notify the other involved Secretary and the involved Parties of the allegations. Part IV—Proprietary Information and Privileged Information Filing or Service Under Seal 44. (1) Where, under these rules, a document containing proprietary information or privileged information is required to be filed under seal with the Secretariat or is required to be served under seal, the document shall be filed or served in accordance with this rule PO 00000 Frm 00013 Fmt 4703 Sfmt 4703 and, where the document is a pleading, in accordance with rule 56. (2) A document filed or served under seal shall be (a) Bound separately from all other documents; (b) Clearly marked. (i) With respect to a panel review of a final determination made in Canada, (A) In the case of a document containing proprietary information, ‘‘Proprietary’’, ‘‘Confidential’’, ‘‘De nature exclusive’’ or ‘‘Confidentiel’’, and (B) In the case of a document containing privileged information, ‘‘Privileged’’ or ‘‘Protege’’, (ii) With respect to a panel review of a final determination made in Mexico, (A) In the case of a document containing proprietary information, ‘‘Confidencial’’, and (B) In the case of a document containing privileged information, ‘‘Privilegiada’’, and (iii) With respect to a panel review of a final determination made in the United States, (A) In the case of a document containing proprietary information, ‘‘Proprietary’’, and (B) In the case of a document containing privileged information, ‘‘Privileged’’; and (c) Contained in an opaque inner wrapper and an opaque outer wrapper. (3) An inner wrapper referred to in subrule (2)(c) shall indicate (a) That proprietary information or privileged information is enclosed, as the case may be; and (b) The Secretariat file number of the panel review. 45. Filing or service of proprietary information or privileged information with the Secretariat does not constitute a waiver of the designation of the information as proprietary information or privileged information. Proprietary Information Access Orders 46. (1) A counsel of record, or a professional retained by, or under the control or direction of, a counsel of record, who wishes disclosure of proprietary information in a panel review shall file a Proprietary Information Access Application with respect to the proprietary information as follows: (a) With the responsible Secretariat, four copies; and (b) With the investigating authority, one original and any additional copies that the investigating authority requires. (2) A Proprietary Information Access Application referred to in subrule (1) shall be served (a) Where the Proprietary Information Access Application is filed before the E:\FR\FM\10APN1.SGM 10APN1 mstockstill on PROD1PC66 with NOTICES Federal Register / Vol. 73, No. 70 / Thursday, April 10, 2008 / Notices expiration of the time period fixed for filing a Notice of Appearance in the panel review, on the persons listed in the service list; and (b) In any other case, on all participants other than the investigating authority, in accordance with subrule 24(1). 47. (1) Every panelist, assistant to a panelist, court reporter, interpreter and translator shall, before taking up duties in a panel review, provide to the responsible Secretary a Proprietary Information Access Application. (2) A panelist, assistant to a panelist, court reporter, interpreter or translator who amends or modifies a Proprietary Information Access Application shall provide the responsible Secretariat with a copy of the amendment or modification. (3) Where the investigating authority receives, pursuant to subrule 14(1), a Proprietary Information Access Application or an amendment or modification thereto, the investigating authority shall issue a Proprietary Information Access Order, amendment or modification accordingly. 48. The investigating authority shall, within 30 days after a Proprietary Information Access Application is filed in accordance with subrule 46(1), serve on the person who filed the Proprietary Information Access Application (a) A Proprietary Information Access Order; or (b) A notification in writing setting out the reasons why a Proprietary Information Access Order is not issued. 49. (1) Where (a) An investigating authority refuses to issue a Proprietary Information Access Order to a counsel of record or to a professional retained by, or under the control or direction of, a counsel of record, or (b) An investigating authority issues a Proprietary Information Access Order with terms unacceptable to the counsel of record, the counsel of record may file with the responsible Secretariat a Notice of Motion requesting that the panel review the decision of the investigating authority. (2) Where, after consideration of any response made by the investigating authority referred to in subrule (1), the panel decides that a Proprietary Information Access Order should be issued or that the terms of a Proprietary Information Access Order should be modified or amended, the panel shall so notify counsel for the investigating authority. (3) Where the final determination was made in the United States and the investigating authority fails to comply with the notification referred to in VerDate Aug<31>2005 16:48 Apr 09, 2008 Jkt 214001 subrule (2), the panel may issue such orders as are just in the circumstances, including an order refusing to permit the investigating authority to make certain arguments in support of its case or striking certain arguments from its pleadings. 50. (1) Where a Proprietary Information Access Order is issued to a person in a panel review, the person shall file with the responsible Secretariat, pursuant to the applicable regulations of the investigating authority, a copy of the Proprietary Information Access Order. (2) Where a Proprietary Information Access Order is revoked, amended or modified by the investigating authority, the investigating authority shall provide to the responsible Secretariat and to all participants a copy of the Notice of Revocation, amendment or modification. 51. Where a Proprietary Information Access Order is issued to a person, the person is entitled (a) To access to the document; and (b) Where the person is a counsel of record, to a copy of the document containing the proprietary information, on payment of an appropriate fee, and to service of pleadings containing the proprietary information. Privileged Information 52. (1) A Notice of Motion for disclosure of a document in the administrative record identified as containing privileged information shall set out (a) The reasons why disclosure of the document is necessary to the case of the participant filing the Notice of Motion; and (b) A statement of any point of law or legal authority relied on, together with a concise argument in support of disclosure. (2) Within 10 days after a Notice of Motion referred to in subrule (1) is filed, the investigating authority shall, if it intends to respond, file the following in response: (a) An affidavit of an official of the investigating authority stating that, since the filing of the Notice of Motion, the official has examined the document and has determined that disclosure of the document would constitute disclosure of privileged information; and (b) A statement of any point of law or legal authority relied on, together with a concise argument in support of nondisclosure. (3) After having reviewed the Notice of Motion referred to in subrule (1) and any response filed under subrule (2), the panel may order PO 00000 Frm 00014 Fmt 4703 Sfmt 4703 19467 (a) That the document shall not be disclosed; or (b) That the investigating authority file two copies of the document under seal with the responsible Secretariat. (4) Where the panel has issued an order pursuant to subrule (3)(b), the panel shall select two panelists, one of whom shall be a lawyer who is a citizen of the country of one involved Party and the other of whom shall be a lawyer who is a citizen of the country of the other involved Party. (5) The two panelists selected under subrule (4) shall (a) Examine the document in camera; and (b) Communicate their decision, if any, to the panel. (6) The decision referred to in subrule (5)(b) shall be issued as an order of the panel. (7) Where the two panelists selected under subrule (4) fail to come to a decision, the panel shall (a) Examine the document in camera; and (b) Issue an order with respect to the disclosure of the document. (8) Where an order referred to in subrule (6) or (7) is to the effect that the document shall not be disclosed, the responsible Secretary shall return all copies of the document to the investigating authority by service under seal. 53. In a panel review of a final determination made in the United States, where, pursuant to rule 52, disclosure of a document is granted, (a) The panel shall limit disclosure to (i) Persons who must have access in order to permit effective representation in the panel review, (ii) Persons, such as the Secretariat staff, court reporters, interpreters and translators, who must have access for administrative purposes in order to permit effective functioning of the panel, and (iii) Members of an Extraordinary Challenge Committee and their assistants who may need access pursuant to the NAFTA Extraordinary Challenge Committee Rules; (b) The panel shall issue an order identifying by name and by title or position the persons who are entitled to access and shall allow for future access by new counsel of record and by members of an Extraordinary Challenge Committee and, as necessary, their assistants; and (c) The investigating authority shall issue a Propriety Information Access Order with respect to that document in accordance with the order of the panel. E:\FR\FM\10APN1.SGM 10APN1 19468 Federal Register / Vol. 73, No. 70 / Thursday, April 10, 2008 / Notices Violations of Proprietary Information Access Applications or Orders 54. Where a person alleges that the terms of a Proprietary Information Access Application or of a Proprietary Information Access Order have been violated, the panel shall refer the allegations to the investigating authority for investigation and, where applicable, the imposition of sanctions in accordance with section 77.034 of the Special Import Measures Act, as amended, section 777(f) of the Tariff Act of 1930, as amended, or article 93 of the Ley de Comercio Exterior. mstockstill on PROD1PC66 with NOTICES Part V—Written Proceedings Form and Content of Pleadings 55. (1) Every pleading filed in a panel review shall contain the following information: (a) The title of, and any Secretariat file number assigned for, the panel review; (b) A brief descriptive title of the pleading; (c) The name of the Party, investigating authority or interested person filing the document; (d) The name of counsel of record for the Party, investigating authority or interested person; (e) The service address, as defined in rule 3; and (f) The telephone number of the counsel of record referred to in subrule (d) or, where an interested person is not represented by counsel, the telephone number of the interested person. (2) Every pleading filed in a panel review shall be on paper 8 1⁄2 x 11 inches (216 millimetres by 279 millimeters) in size. The text of the pleading shall be printed, typewritten or reproduced legibly on one side only with a margin of approximately 11⁄2 inches (40 millimetres) on the left-hand side with double spacing between each line of text, except for quotations of more than 50 words, which shall be indented and single-spaced. Footnotes, titles, schedules, tables, graphs and columns of figures shall be presented in a readable form. Briefs and appendices shall be securely bound along the lefthand margin. (3) Every pleading filed on behalf of a participant in a panel review shall be signed by counsel for the participant or, where the participant is not represented by counsel, by the participant. 56. (1) Where a participant files a pleading that contains proprietary information, the participant shall file two sets of the pleading in the following manner: (a) One set containing the proprietary information shall be filed under seal and VerDate Aug<31>2005 16:48 Apr 09, 2008 Jkt 214001 (i) With respect to a panel review of a final determination made in Canada, shall be labelled ‘‘Proprietary’’, ‘‘Confidential’’, ‘‘Confidentiel’’ or ‘‘De nature exclusive’’, with the top of each page that contains proprietary information marked with the word ‘‘Proprietary’’, ‘‘Confidential’’, ‘‘Confidentiel’’ or ‘‘De nature exclusive’’ and with the proprietary information enclosed in brackets, (ii) With respect to a panel review of a final determination made in Mexico, shall be labelled ‘‘Confidencial’’, with the top of each page that contains proprietary information marked with the word ‘‘Confidencial’’ and with the proprietary information enclosed in brackets, and (iii) With respect to a panel review of a final determination made in the United States, shall be labelled ‘‘Proprietary’’, with the top of each page that contains proprietary information marked with the word ‘‘Proprietary’’ and with the proprietary information enclosed in brackets; and (b) No later than one day following the day on which the set of pleadings referred to in subrule (a) is filed, another set not containing proprietary information shall be filed and (i) With respect to a panel review of a final determination made in Canada, shall be labelled ‘‘Non-Proprietary’’, ‘‘Non-Confidential’’, ‘‘Non confidentiel’’ or ‘‘De nature non exclusive’’, (ii) with respect to a panel review of a final determination made in Mexico, shall be labelled ‘‘No-confidencial’’, and (iii) With respect to a panel review of a final determination made in the United States, shall be labelled ‘‘NonProprietary’’, with each page from which proprietary information has been deleted marked to indicate the location from which the proprietary information was deleted. (2) Where a participant files a pleading that contains privileged information, the participant shall file two sets of the pleading in the following manner: (a) One set containing the privileged information shall be filed under seal and (i) With respect to a panel review of a final determination made in Canada, shall be labelled ‘‘Privileged’’ or ‘‘Protege’’, with the top of each page that contains privileged information marked with the word ‘‘Privileged’’ or ‘‘Protege’’ and with the privileged information enclosed in brackets, (ii) With respect to a panel review of a final determination made in Mexico, shall be labelled ‘‘Privilegiada’’, with the top of each page that contains privileged information marked with the PO 00000 Frm 00015 Fmt 4703 Sfmt 4703 word ‘‘Privilegiada’’, and with the privileged information enclosed in brackets, and (iii) With respect to a panel review of a final determination made in the United States, shall be labelled ‘‘Privileged’’, with the top of each page that contains privileged information marked with the word ‘‘Privileged’’ and with the privileged information enclosed in brackets; and (b) No later than one day following the day on which the set of pleadings referred to in subrule (a) is filed, another set not containing privileged information shall be filed and (i) With respect to a panel review of a final determination made in Canada, shall be labelled ‘‘Non-Privileged’’ or ‘‘Non protege’’, (ii) with respect to a panel review of a final determination made in Mexico, shall be labelled ‘‘No-privilegiada’’, and (iii) With respect to a panel review of a final determination made in the United States, shall be labelled ‘‘NonPrivileged’’, with each page from which privileged information has been deleted marked to indicate the location from which the privileged information was deleted. Filing of Briefs 57. (1) Subject to subrule 38(1), every participant who has filed a Complaint under rule 39 or a Notice of Appearance with a statement under subrule 40(1)(d)(i) or (iii) shall file a brief, setting forth grounds and arguments supporting allegations of the Complaint no later than 60 days after the expiration of the time period fixed, under subrule 41(1), for filing the administrative record. (2) Every participant who has filed a Notice of Appearance with a statement under subrule 40(1)(d)(ii) or (iii) shall file a brief setting forth grounds and arguments opposing allegations of a Complaint no later than 60 days after the expiration of the time period for filing of briefs referred to in subrule (1). (3) Every participant who has filed a brief pursuant to subrule (1) may file a brief replying to the grounds and arguments set forth in the briefs filed pursuant to subrule (2) no later than 15 days after the expiration of the time period for filing of briefs referred to in subrule (2). Reply briefs shall be limited to rebuttal of matters raised in the briefs filed pursuant to subrule (2). (4) An appendix containing authorities cited in all briefs filed under any of subrules (1) to (3) shall be filed with the responsible Secretariat within 10 days after the last day on which a brief under subrule (3) may be filed. E:\FR\FM\10APN1.SGM 10APN1 Federal Register / Vol. 73, No. 70 / Thursday, April 10, 2008 / Notices (5) Any number of participants may join in a single brief and any participant may adopt by reference any part of the brief of another participant. (6) A participant may file a brief without appearing to present oral argument. (7) Where a panel review of a final determination made by an investigating authority of the United States with respect to certain goods involves issues that may relate to the final determination of the other investigating authority with respect to those goods, the latter investigating authority may file an amicus curiae brief in the panel review in accordance with subrule (2). Failure To File Briefs 58. (1) In respect of a panel review of a final determination made in the United States or Canada, where a participant fails to file a brief within the time period fixed and no motion pursuant to rule 20 is pending, on a motion of another participant, the panel may order that the participant who fails to file a brief is not entitled (a) To present oral argument; (b) To service of any further pleadings, orders or decisions in the panel review; or (c) To further notice of the proceedings in the panel review. (2) Where (a) No brief is filed by any complainant or by any participant in support of any of the complainants within the time periods established pursuant to these rules, and (b) No motion pursuant to rule 20 is pending, the panel may, on its own motion or pursuant to the motion of a participant, issue an order to show cause why the panel review should not be dismissed. (3) If, pursuant to an order under subrule (2), good cause is not shown, the panel shall issue an order dismissing the panel review. (4) Where no brief is filed by an investigating authority, or by an interested person in support of the investigating authority, within the time period fixed in subrule 57(2), a panel may issue a decision referred to in rule 72. mstockstill on PROD1PC66 with NOTICES Content of Briefs and Appendices 59. (1) Every brief filed pursuant to subrule 57(1) or (2) shall contain information, in the following order, divided into five parts: Part I: (a) A table of contents; and (b) A table of authorities cited: The table of authorities shall contain references to all treaties, statutes and regulations cited, any cases primarily VerDate Aug<31>2005 16:48 Apr 09, 2008 Jkt 214001 relied on in the briefs, set out alphabetically, and all other documents referred to except documents from the administrative record. The table of authorities shall refer to the page(s) of the brief where each authority is cited and mark, with an asterisk in the margin, those authorities primarily relied on. Part II: A statement of the case: (a) In the brief of a complainant or of a participant filing a brief pursuant to subrule 57(1), this Part shall contain a concise statement of the relevant facts; (b) In the brief of an investigating authority or of a participant filing a brief pursuant to subrule 57(2), this Part shall contain a concise statement of the position of the investigating authority or the participant with respect to the statement of facts set out in the briefs referred to in paragraph (a), including a concise statement of other facts relevant to its case; and (c) In all briefs, references to evidence in the administrative record shall be made by page and, where practicable, by line. Part III: A statement of the issues: (a) In the brief of a complainant or of a participant filing a brief pursuant to subrule 57(1), this Part shall contain a concise statement of the issues; and (b) In the brief of an investigating authority or of a participant filing a brief pursuant to subrule 57(2), this Part shall contain a concise statement of the position of the investigating authority or the participant with respect to each issue relevant to its case. Part IV: Argument: This Part shall consist of the argument setting out concisely the points of law relating to the issues, with applicable citations to authorities and the administrative record. Part V: Relief: This part shall consist of a concise statement precisely identifying the relief requested. (2) Paragraphs in Parts I to V of a brief may be numbered consecutively. (3) A reply brief filed pursuant to rule 57(3) shall include a table of contents and a table of authorities, indicating those principally relied upon in the argument. Appendix to the Briefs 60. (1) Authorities referred to in the briefs shall be included in an appendix, which shall be organized as follows: A table of contents, copies of all treaty and statutory references, references to regulations, cases primarily relied on in the briefs, set out alphabetically, and all other documents referred to in the briefs except documents from the administrative record. PO 00000 Frm 00016 Fmt 4703 Sfmt 4703 19469 (2) The appendix required under subrule 57(4) shall be compiled by a participant who filed a brief under subrule 57(1) and who was so designated by all the participants who filed a brief. Each participant who filed a brief under subrule 57(2) shall provide the designated participant with a copy of each authority on which it primarily relied in its brief that was not primarily relied on in any other brief filed under subrule 57(1). Each participant who filed a brief under subrule 57(3) shall provide the designated participant with a copy of each authority on which it primarily relied in its brief that was not primarily relied on in briefs filed pursuant to subrule 57(1) or (2). (3) The costs for compiling the appendix shall be borne equally by all participants who file briefs. Motions 61. (1) A motion shall be made by Notice of Motion in writing (model form provided in the Schedule) unless the circumstances make it unnecessary or impracticable. (2) Every Notice of Motion, and any affidavit in support thereof, shall be accompanied by a proposed order of the panel (model form provided in the Schedule) and shall be filed with the responsible Secretariat, together with proof of service on all participants. (3) Every Notice of Motion shall contain the following information: (a) The title of the panel review, the Secretariat file number for that panel review and a brief descriptive title indicating the purpose of the motion; (b) A statement of the precise relief requested; (c) A statement of the grounds to be argued, including a reference to any rule, point of law or legal authority to be relied on, together with a concise argument in support of the motion; and (d) Where necessary, references to evidence in the administrative record identified by page and, where practicable, by line. (4) The pendency of any motion in a panel review shall not alter any time period fixed in these rules or by an order or decision of the panel. (5) A Notice of Motion to which all participants consent shall be entitled a Consent Motion. 62. Subject to subrules 20(2) and 76(5), unless the panel otherwise orders, a participant may file a response to a Notice of Motion within 10 days after the Notice of Motion is filed. 63. (1) A panel may dispose of a motion based upon the pleadings filed pertaining to the motion. (2) The panel may hear oral argument or, subject to subrule 26(b), direct that E:\FR\FM\10APN1.SGM 10APN1 19470 Federal Register / Vol. 73, No. 70 / Thursday, April 10, 2008 / Notices a motion be heard by means of a telephone conference call with the participants. (3) A panel may deny a motion before responses to the Notice of Motion have been filed. 64. Where a panel chooses to hear oral argument or, pursuant to subrule 63(2), directs that a motion be heard by means of a telephone conference call with the participants, the responsible Secretary shall, at the direction of the chairperson, fix a date, time and place for the hearing of the motion and shall notify all participants of the same. Part VI—Oral Proceedings Location 65. Oral proceedings in a panel review shall take place at the office of the responsible Secretariat or at such other location as the responsible Secretary may arrange. Pre-Hearing Conference 66. (1) A panel may hold a prehearing conference, in which case the responsible Secretary shall give notice of the conference to all participants. (2) A participant may request that the panel hold a pre-hearing conference by filing with the responsible Secretariat a written request setting out the matters that the participant proposes to raise at the conference. (3) The purpose of a pre-hearing conference shall be to facilitate the expeditious advancement of the panel review by addressing such matters as (a) The clarification and simplification of the issues; (b) The procedure to be followed at the hearing of oral argument; and (c) Any outstanding motions. (4) Subject to subrule 26(b), a prehearing conference may be conducted by means of a telephone conference call. (5) Following a pre-hearing conference, the panel shall promptly issue an order setting out its rulings with respect to the matters considered at the conference. mstockstill on PROD1PC66 with NOTICES Oral Argument 67. (1) A panel shall commence the hearing of oral argument no later than 30 days after the expiration of the time period fixed under subrule 57(3) for filing reply briefs. At the direction of the panel, the responsible Secretary shall notify all participants of the date, time and place for the oral argument. (2) Oral argument shall be subject to the time constraints set by the panel and shall, unless the panel otherwise orders, be presented in the following order: (a) The complainants and any participant who filed a brief in support VerDate Aug<31>2005 16:48 Apr 09, 2008 Jkt 214001 of the allegations set out in a Complaint or partly in support of the allegations set out in a Complaint and partly in opposition to the allegations set out in a Complaint; (b) The investigating authority and any participant who filed a brief in opposition to the allegations set out in a Complaint, other than a participant referred to in subrule (a); and (c) Argument in reply, at the discretion of the panel. (3) If a participant fails to appear at oral argument, the panel may hear argument on behalf of the participants who are present. If no participant appears, the panel may decide the case on the basis of briefs. (4) Oral argument on behalf of a participant on a motion or at a hearing shall be conducted by the counsel of record for that participant or, where the participant is an individual appearing prose, by the participant. (5) Oral argument shall be limited to the issues in dispute. Subsequent Authorities 68. (1) A participant who has filed a brief may bring to the attention of the panel, (a) At any time before the conclusion of oral argument, an authority that is relevant to the panel review; (b) At any time after the conclusion of oral argument and before the panel has issued its decision, (i) An authority that was reported subsequent to the conclusion of oral argument, or (ii) With the leave of the panel, an authority that is relevant to the panel review and that came to the attention of counsel of record after the conclusion of oral argument, by filing with the responsible Secretariat a written request, setting out the citation of the decision or judgment, the page reference of the brief of the participant to which the decision or judgment relates and a concise statement, of no more than one page in length, of the relevance of the decision or judgment. (2) A request referred to in subrule (1) shall be filed as soon as possible after the issuance of the decision or judgment by the court. (3) Where a request referred to in subrule (1) is filed with the responsible Secretariat, any other participant may, within five days after the date on which the request was filed, file a concise statement, of no more than one page in length, in response. Oral Proceedings in Camera 69. During that part of oral proceedings in which proprietary information or privileged information is PO 00000 Frm 00017 Fmt 4703 Sfmt 4703 presented, a panel shall not permit any person other than the following persons to be present: (a) The person presenting the proprietary information or privileged information; (b) A person who has been granted access to the proprietary information or privileged information under a Proprietary Information Access Order or an order of the panel; (c) In the case of privileged information, a person as to whom the confidentiality of the privileged information has been waived; and (d) Officials of, and counsel for, the investigating authority. Part VII—Decisions and Completions of Panel Reviews Orders, Decisions and Terminations 70. The responsible Secretary shall cause notice of every decision of a panel issued pursuant to rule 72 to be published in the official publications of the involved Parties. 71. (1) Where a Notice of Motion requesting dismissal of a panel review is filed by a participant, the panel may issue an order dismissing the panel review. (2) Where a Notice of Motion requesting termination of a panel review is filed by a participant and is consented to by all the participants, and an affidavit to that effect is filed, or where all participants file Notices of Motion requesting termination, the panel review is terminated and, if a panel has been appointed, the panelists are discharged. (3) A panel review is deemed to be terminated on the day after the expiration of the limitation period established pursuant to subrule 39(1) if no Complaint has been filed in a timely manner. The responsible Secretariat shall issue a Notice of Completion of Panel Review. 72. A panel shall issue a written decision with reasons, together with any dissenting or concurring opinions of the panelists, in accordance with Article 1904.8 of the Agreement. The decision will normally be released by noon on the date of issuance. Panel Review of Action on Remand 73. (1) An investigating authority shall give notice of the action taken pursuant to a remand of the panel by filing with the responsible Secretariat a Determination on Remand within the time specified by the panel. (2) If, on remand, the investigating authority has supplemented the administrative record, (a) The investigating authority shall file with the responsible Secretariat two E:\FR\FM\10APN1.SGM 10APN1 mstockstill on PROD1PC66 with NOTICES Federal Register / Vol. 73, No. 70 / Thursday, April 10, 2008 / Notices copies of an Index listing each item in the supplementary remand record, together with proof of service of the Index on the counsel of record of each of the participants, or where a participant is not represented by counsel, on the participant, and two copies of each non-privileged item listed in that Index, within five days after the date on which the investigating authority filed the Determination on Remand with the panel; (b) Any participant who intends to challenge the Determination on Remand shall file a written submission with respect to the Determination on Remand within 20 days after the date on which the investigating authority filed the Index and supplementary remand record; and (c) Any response to the written submissions referred to in subrule (b) shall be filed by the investigating authority, and by any participant supporting the investigating authority, within 20 days after the last day on which written submissions in opposition to the Determination on Remand may be filed. (3) If, on remand, the investigating authority has not supplemented the record, (a) Any participant who intends to challenge the Determination on Remand shall file a written submission within 20 days after the date on which the investigating authority filed the Determination on Remand with the panel; and (b) Any response to the written submissions referred to in subrule (a) shall be filed by the investigating authority, and by any participant filing in support of the investigating authority, within 20 days after the last day on which such written submissions may be filed. (4) In the case of a panel review of a final determination made in Mexico, where a participant who fails to file a brief under rule 57 files a written submission pursuant to subrule (2) or (3), the submission shall be disregarded by the panel. (5) If no written submissions are filed under subrule (2)(b) or (3)(a) within the time periods established by these rules, and if no motion pursuant to rule 20 is pending, the panel shall, within 10 days after the later of the due date for such written submissions and the date of the denial of a motion pursuant to rule 20, issue an order affirming the investigating authority’s Determination on Remand. (6) Where a Determination on Remand is challenged, the panel shall issue a written decision pursuant to rule 72, either affirming the Determination on VerDate Aug<31>2005 16:48 Apr 09, 2008 Jkt 214001 Remand or remanding it to the investigating authority, no later than 90 days after the Determination on Remand is filed. 74. In setting the date by which a Determination on Remand shall be due from the investigating authority, the panel shall take into account, among other factors, (a) The date that any Determination on Remand with respect to the same goods is due from the other investigating authority; and (b) The effect the Determination on Remand from the other investigating authority might have on the deliberations of the investigating authority with respect to the making of a final Determination on Remand. Re-Examination of Orders and Decisions 75. A clerical error in an order or decision of a panel, or an error in an order or decision of a panel arising from any accidental oversight, inaccuracy or omission, may be corrected by the panel at any time during the panel review. 76. (1) A participant may, within 10 days after a panel issues its decision, file a Notice of Motion requesting that the panel re-examine its decision for the purpose of correcting an accidental oversight, inaccuracy or omission, which shall set (a) The oversight, inaccuracy or omission with respect to which the request is made; (b) The relief requested; and (c) If ascertainable, a statement as to whether other participants consent to the motion. (2) The grounds for a motion referred to in subrule (1) shall be limited to one or both of the following grounds: (a) That the decision does not accord with the reasons therefor; or (b) Tthat some matter has been accidentally overlooked, stated inaccurately or omitted by the panel. (3) No Notice of Motion referred to in subrule (1) shall set out any argument already made in the panel review. (4) There shall be no oral argument in support of a motion referred to in subrule (1). (5) Except as the panel may otherwise order under subrule (6)(b), no participant shall file a response to a Notice of Motion filed pursuant to subrule (1). (6) Within seven days after the filing of a Notice of Motion under subrule (1), the panel shall (a) Issue a decision ruling on the motion; or (b) Issue an order identifying further action to be taken concerning the motion. PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 19471 (7) A decision or order under subrule (6) may be made with the concurrence of any three panelists. Part VIII—Completion of Panel Review 77. (1) Subject to subrule (2), when a panel issues: (a) An order dismissing a panel review under subrule 58(3) or 71(1), (b) A decision under rule 72 or subrule 73(6) that is the final action in the panel review, or (c) An order under subrule 73(5), the panel shall direct the responsible Secretary to issue a Notice of Final Panel Action (model form provided in the Schedule) on the eleventh day thereafter. (2) Where a motion is filed pursuant to subrule 76(1) regarding a decision referred to in subrule (1)(b), the responsible Secretary shall issue the Notice of Final Panel Action on the day on which the panel (a) Issues a ruling finally disposing of the motion; or (b) Directs the responsible Secretary to issue the Notice of Final Panel Action, the issuance of which shall constitute a denial of the motion. 78. If no Request for an Extraordinary Challenge Committee is filed, the responsible Secretary shall publish a Notice of Completion of Panel Review in the official publications of the involved Parties, effective. (a) On the day on which a panel is terminated pursuant to subrule 71(2); or (b) In any other case, on the day after the expiration of the limitation period established pursuant to subrules 37(1) and 37(2)(a) of the NAFTA Extraordinary Challenge Committee Rules. 79. Where a Request for an Extraordinary Challenge Committee has been filed, the responsible Secretary shall publish a Notice of Completion of Panel Review in the official publications of the involved Parties, effective on the day after the day referred to in rule 64 or subrule 65(a) of the NAFTA Extraordinary Challenge Committee Rules. 80. Panelists are discharged from their duties on the day on which a Notice of Completion of Panel Review is effective, or on the day on which an Extraordinary Challenge Committee vacates a panel review pursuant to subrule 65(b) of the NAFTA Extraordinary Challenge Committee Rules. Stays and Suspensions 81. Where a panelist becomes unable to fulfill panel duties, is disqualified or dies, panel proceedings and the running of time periods shall be suspended, pending the appointment of a substitute E:\FR\FM\10APN1.SGM 10APN1 19472 Federal Register / Vol. 73, No. 70 / Thursday, April 10, 2008 / Notices llllllllllllllllll l (interested person filing notice) intends to commence judicial review in the llllllllllllllllll l (name of the court) of the final determination referenced below. The following information is provided pursuant to Rule 33 of the NAFTA Article 1904 Panel Rules: 1. llllXXXX (The name of the interested person filing this notice) 2. llllXXXX (The name of counsel for the interested person, if any) 3. llllXXXX llllXXXX llllXXXX (The service address, as defined by Rule 3 of the NAFTA Article 1904 Panel Rules, including facsimile number, if any) 4. llllXXXX (The telephone number of counsel for the interested person or the telephone number of the interested person, if not represented by counsel) 5. llllXXXX (The title of the final determination for which notice of intent to commence judicial review is served) 6. llllXXXX (The investigating authority that issued the final determination) 7. llllXXXX (The file number of the investigating authority) 8. (a) llllXXXX (The citation and date of publication of the final determination in the Federal Register, Canada Gazette or Diario Oficial de la Federacion); or (b) llllXXXX (If the final determination was not published, the date notice of the final determination was received by the other Party) llllllllllllllllll l Date llllllllllllllllll l Signature of Counsel (or interested person, if not represented by counsel) Form (2) Article 1904 Binational Panel Review Schedule—Procedural Forms Pursuant to the North American FreeTrade Agreement Forms (1) through (7) follow. In the matter of: Form (1) llllllllllllllllll l Article 1904 Binational Panel Review (Title of Panel Review) Pursuant to the North American Free Secretariat File No. llll Trade Agreement Request for Panel Review In the matter of: Pursuant to Article 1904 of the North llllllllllllllllll l llllllllllllllllll l American Free-Trade Agreement, panel review is hereby requested of the final (Title of Final Determination) determination referenced below. The Notice of Intent to Commence Judicial following information is provided Review Pursuant to Article 1904 of the North pursuant to Rule 34 of the NAFTA American Free-Trade Agreement, notice Article 1904 Panel Rules: is hereby served that 1. llllXXXX mstockstill on PROD1PC66 with NOTICES panelist in accordance with the procedures set out in Annex 1901.2 to Chapter Nineteen of the Agreement. 82. Where a panelist is disqualified, dies or otherwise becomes unable to fulfill panel duties, after the oral argument, the chairperson may order that the matter be reheard, on such terms as are appropriate, after selection of a substitute panelist. 83. (1) A Party may make a request, pursuant to Article 1905.11(a)(ii) of the Agreement, that an ongoing panel review be stayed by filing the request with the responsible Secretariat. (2) A Party who files a request under subrule (1) shall forthwith give written notice of the request to the other involved Party and to the other involved Secretariat. (3) On receipt of a request under subrule (1), the responsible Secretary shall (a) Immediately give written notice of the stay of the panel review to all participants in the panel review; and (b) Publish a notice of the stay of the panel review in the official publications of the involved Parties. 84. On receipt of a report containing an affirmative finding with respect to a ground specified in Article 1905.1 of the Agreement, the responsible Secretary for panel reviews referred to in Article 1905.11(a)(i) of the Agreement shall (a) Immediately give notice in writing to all participants in those reviews; and (b) Publish a notice of the affirmative finding in the official publications of the involved Parties. 85. (1) A Party who intends to suspend the operation of Article 1904 of the Agreement pursuant to Article 1905.8 or 1905.9 of the Agreement shall endeavour to give written notice of that intention to the other involved Party and to the involved Secretaries at least five days prior to the suspension. (2) On receipt of a notice under subrule (1), the involved Secretaries shall publish a notice of the suspension in the official publications of the involved Parties. VerDate Aug<31>2005 16:48 Apr 09, 2008 Jkt 214001 PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 (The name of the Party or the interested person filing this request for panel review) 2. llllXXXX (The name of counsel for the Party or the interested person, if any) 3. llllXXXX llllXXXX llllXXXX (The service address, as defined by Rule 3 of the NAFTA Article 1904 Panel Rules, including facsimile number, if any) 4. llllXXXX (The telephone number of counsel for the Party or the interested person or the telephone number of the interested person, if not represented by counsel) 5. llllXXXX (The title of the final determination for which panel review is requested) 6. llllXXXX (The investigating authority that issued the final determination) 7. llllXXXX (The file number of the investigating authority) 8. (a) llllXXXX (The citation and date of publication of the final determination in the Federal Register, Canada Gazette or Diario Oficial de la Federacion); or (b) llllXXXX (If the final determination was not published, the date notice of the final determination was received by the other Party) 9. Yes llll Nollll NonApplicable llll (Where a Notice of Intent to Commence Judicial Review has been served, is the sole reason for requesting review of the final determination to require review by a panel?) 10. The Service List, as defined by Rule 3 of the NAFTA Article 1904 Panel Rules, is attached. llllllllllllllllll l Date llllllllllllllllll l Signature of Counsel (or interested person, if not represented by counsel) Form (3) Article 1904 Binational Panel Review Pursuant to the North American Free Trade Agreement In the matter of: llllllllllllllllll l llllllllllllllllll l (Title of Panel Review) Secretariat File No. llll Complaint 1. llllXXXX (The name of the interested person filing the complaint) 2. llllXXXX (The name of counsel for the interested person, if any) 3. llllXXXX E:\FR\FM\10APN1.SGM 10APN1 mstockstill on PROD1PC66 with NOTICES Federal Register / Vol. 73, No. 70 / Thursday, April 10, 2008 / Notices llllXXXX llllXXXX (The service address, as defined by Rule 3 of the NAFTA Article 1904 Panel Rules, including facsimile number, if any) 4. llll XXXX (The telephone number of counsel for the interested person or telephone number of the interested person, if not represented by counsel) 5. Statement of the Precise Nature of the Complaint (See Rule 39 of the NAFTA Article 1904 Panel Rules) A. The Applicable Standard of Review B. Allegations of Errors of Fact or Law C. Challenges to the Jurisdiction of the Investigating Authority 6. Statement of the Interested Person’s Entitlement to File a Complaint under Rule 39 of the NAFTA Article 1904 Panel Rules 7. For Panel Reviews of Determinations Made in Canada: (a) Complainant intends to use the specified language in pleadings and oral proceedings (Specify one) llll English lll French (b) Complainant requests simultaneous translation of oral proceedings (Specify one) llll Yes llll No llllllllllllllllll l Date llllllllllllllllll l Signature of Counsel (or interested person, if not represented by counsel) Form (4) Article 1904 Binational Panel Review Pursuant to the North American Free Trade Agreement In the matter of: llllllllllllllllll l llllllllllllllllll l (Title of Panel Review) Secretariat File No. llll Notice of Appearance 1. llllXXXX (The name of the investigating authority or the interested person filing this notice of appearance) 2. llllXXXX (The name of counsel for the investigating authority or the interested person, if any) 3. llllXXXX llllXXXX llllXXXX (The service address, as defined by Rule 3 of the NAFTA Article 1904 Panel Rules, including facsimile number, if any) 4. llllXXXX (The telephone number of counsel for the investigating authority or the interested person or the telephone number of the interested person, if not represented by counsel) VerDate Aug<31>2005 16:48 Apr 09, 2008 Jkt 214001 5. This Notice of Appearance is made: llll in support of some or all of the allegations set out in a Complaint; llll in opposition to some or all of the allegations set out in a Complaint; or llll in support of some of the allegations set out in a Complaint and in opposition to some of the allegations set out in a Complaint. 6. Statement as to the basis for the interested person’s entitlement to file a Notice of Appearance under Rule 40 of the NAFTA Article 1904 Panel Rules 7. For Notices of Appearance Filed by the Investigating Authority Statement by the Investigating Authority regarding any admissions with respect to the allegations set out in the Complaints 8. For Panel Reviews of Determinations Made in Canada: (a) I intend to use the specified language in pleadings and oral proceedings (Specify one) llll English llll French (b) I request simultaneous translation of oral proceedings (Specify one) llll Yes llll No llllllllllllllllll l Date llllllllllllllllll l Signature of Counsel (or interested person, if not represented by counsel) Form (5) Article 1904 Binational Panel Review Pursuant to the North American Free Trade Agreement In the matter of: llllllllllllllllll l llllllllllllllllll l (Title of Panel Review) Secretariat File No. llll Notice of Motion (descriptive title indicating the purpose of the motion) 1. llllXXXX (The name of the investigating authority or the interested person filing this notice of motion) 2. llllXXXX (The name of counsel for the investigating authority or the interested person, if any) 3. llllXXXX llllXXXX llllXXXX (The service address, as defined by Rule 3 of the NAFTA Article 1904 Panel Rules, including facsimile number, if any) 4. llllXXXX (The telephone number of the counsel for the investigating authority or the interested person or the telephone number of the interested person, if not represented by counsel) 5. Statement of the precise relief requested PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 19473 6. Statement of the grounds to be argued, including references to any rule, point of law, or legal authority to be relied on 7. Arguments in support of the motion, including references to evidence in the administrative record by page and, where practicable, by line 8. Draft order attached (see Rule 61 and Form (6) of the NAFTA Article 1904 Panel Rules) llllllllllllllllll l Date llllllllllllllllll l Signature of Counsel (or interested person, if not represented by counsel) Form (6) Article 1904 Binational Panel Review Pursuant to the North American Free Trade Agreement In the matter of: llllllllllllllllll l llllllllllllllllll l (Title of Panel Review) Secretariat File No. llll Order Upon consideration of the motion for llllXXXX, (relief requested) filed on behalf of llllXXXX, and upon all (participant filing motion) other papers and proceedings herein, it is hereby Ordered that the motion is llllX llllllllllllllllll l Issue Date llllllllllllllllll l Panelist name llllllllllllllllll l Panelist name llllllllllllllllll l Panelist name llllllllllllllllll l Panelist name llllllllllllllllll l Panelist name Form (7) Article 1904 Binational Panel Review Pursuant to the North American Free Trade Agreement In the matter of: llllllllllllllllll l llllllllllllllllll l (Title of Panel Review) Secretariat File No. llll Notice of Final Panel Action Under the direction of the panel, pursuant to rule 77 of the NAFTA Article 1904 Panel Rules, Notice is hereby given that the panel has taken its final action in the above-referenced matter. This Notice is effective on llllXXXX. llllllllllllllllll l Issue Date Signature of the Responsible Secretary E:\FR\FM\10APN1.SGM 10APN1 19474 Federal Register / Vol. 73, No. 70 / Thursday, April 10, 2008 / Notices Dated: April 4, 2008. Michelle O’Neill, Deputy Under Secretary for International Trade. [FR Doc. E8–7621 Filed 4–9–08; 8:45 am] BILLING CODE 3510–GT–P DEPARTMENT OF COMMERCE International Trade Administration (C–533–825) Polyethylene Terephthalate Film, Sheet, and Strip from India: Notice of Partial Rescission of Administrative Review of the Countervailing Duty Order Import Administration, International Trade Administration, Department of Commerce. EFFECTIVE DATE: April 10, 2008. FOR FURTHER INFORMATION CONTACT: Elfi Blum, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482–0197. SUPPLEMENTARY INFORMATION: AGENCY: mstockstill on PROD1PC66 with NOTICES Background On July 3, 2007, the Department of Commerce (the Department) published a notice of opportunity to request an administrative review of the countervailing duty order on Polyethylene Terephthalate (PET) Film, Sheet, and Strip from India. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review, 72 FR 36420 (July 3, 2006). On July 30, 2006, MTZ Polyfilms, Ltd. (MTZ) and Jindal Poly Films Limited of India (Jindal) timely requested that the Department conduct an administrative review of merchandise MTZ and Jindal produced and exported. The Department published a notice of the initiation of the countervailing duty administrative review of PET Film from India for MTZ and Jindal for the period January 1, 2006 through December 31, 2006. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part, 72 FR 48613 (August 24, 2007). On October 3, 2007, Jindal withdrew its request for an administrative review. Partial Rescission of Review The Department’s regulations at section 351.213(d)(1) provide that the Department will rescind an administrative review if the party that VerDate Aug<31>2005 16:48 Apr 09, 2008 Jkt 214001 requested the review withdraws its request for review within 90 days of the date of publication of the notice of initiation of the requested review, or withdraws its request at a later date if the Department determines that it is reasonable to extend the time limit for withdrawing the request. Jindal submitted its request within the 90 day limit set by the regulations. Since no other parties requested a review of Jindal, the Department is rescinding the administrative review of the countervailing duty order on PET film, sheet and strip from India for the period January 1, 2006 through December 31, 2006, for Jindal. MTZ remains subject to this administrative review. The preliminary results for the administrative review of MTZ are currently due July 30, 2008. Assessment The Department will instruct U.S. Customs and Border Protection (CBP) to assess countervailing duties on all appropriate entries. Jindal shall be assessed countervailing duties at rates equal to the cash deposit of the estimated countervailing duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). The Department will issue appropriate assessment instructions to CBP 15 days after the date of publication of this notice of rescission of administrative review. Cash Deposit Rates Jindal’s cash deposit rate continues to be the rate established in the final result of the last administrative review for Jindal. This cash deposit requirement shall remain in effect until publication of the final results of the next administrative review for Jindal. Notification Regarding APOs This notice also serves as a reminder to parties subject to administrative protective orders (APOs) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation that is subject to sanction. This notice is issued and published in accordance with sections 751(a)(1) and 777(i) of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4). PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 Dated: April 2, 2008. Stephen J. Claeys, Deputy Assistant Secretary for Import Administration. [FR Doc. E8–7628 Filed 4–9–08; 8:45 am] BILLING CODE 3510–DS–S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN: 0648–XH10 Caribbean Fishery Management Council (CFMC); Public Meeting National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of a public meeting. AGENCY: SUMMARY: CFMC will host a meeting of the Council Coordination Committee (CCC), consisting of the Regional Fishery Management Council chairs, vice chairs, and executive directors on May 6–9, 2008. The intent of this meeting is to discuss issues of relevance to the Councils, including FY 2008 budget allocations, implementation of provisions from the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act (MSRA), and scientific fisheries research activities, among others. DATES: The meeting will be held on May 6, 2008 through May 9, 2008. See SUPPLEMENTARY INFORMATION for specific dates and times. ADDRESSES: The meeting will be held at the Marriott Frenchman’s Reef & Morning Star Hotel, 5 Estate Bakkeroe, St. Thomas, U.S. Virgin Islands. FOR FURTHER INFORMATION CONTACT: Caribbean Fishery Management Council, 268 Munoz Rivera Ave., Suite 1108, San Juan, Puerto Rico: telephone (787) 766– 5926, or e-mail at dianalmartinol cfmc@yahoo.com, or miguellrolonl cfmc@yahoo.com The meeting will begin at 8:30 a.m. on Tuesday, May 6, 2008, recess at 5 p.m., or when business is complete; reconvene at 8:30 a.m. on Wednesday, May 7, 2008, and recess at 11:30 a.m.; reconvene at 8:30 a.m. on Thursday, May 8, 2008, and recess at 5:30 p.m.; and, if needed, will reconvene on May 9, 2008, and adjourn by noon, or when business is complete. The Magnuson-Stevens Fishery Conservation and Management Reauthorization Act (MSRA) of 2006 established the Council Coordination Committee (CCC) by amending Section SUPPLEMENTARY INFORMATION: E:\FR\FM\10APN1.SGM 10APN1

Agencies

[Federal Register Volume 73, Number 70 (Thursday, April 10, 2008)]
[Notices]
[Pages 19458-19474]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-7621]


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DEPARTMENT OF COMMERCE

International Trade Administration

[Docket Number: 080403512-8513-01]


North American Free Trade Agreement: Amendments to Rules of 
Procedure for Article 1904 Binational Panel Reviews

AGENCY: North American Free Trade Agreement, NAFTA Secretariat, United 
States Section, International Trade Administration, Department of 
Commerce.

ACTION: Amendments to Rules of Procedure for NAFTA Article 1904 
Binational Panel Reviews.

-----------------------------------------------------------------------

SUMMARY: Canada, Mexico and the United States have amended the rules of 
procedure for Article 1904 binational panel reviews. These rules apply 
to binational panel proceedings conducted pursuant to Article 1904 of 
the North American Free Trade Agreement (``NAFTA'' or ``the 
Agreement''). These amendments are intended to improve the panel review 
process under Chapter Nineteen of NAFTA in order to increase its 
efficiency and effectiveness.

DATES: Effective Date: These amendments to the rules of procedure shall 
apply to all binational panel proceedings commenced by a Request for 
Panel Review filed with the NAFTA Secretariat, United States Section, 
on or after April 10, 2008.

FOR FURTHER INFORMATION CONTACT: Michele Lynch, Senior Counsel, or 
William Isasi, Senior Attorney, U.S. Department of Commerce, Office of 
the General Counsel, Office of Chief Counsel for Import Administration, 
HCHB Room 3622, 1401 Constitution Ave., NW., Washington, DC 20230, 
(202) 482-2879 or (202) 482-4339, respectively.

SUPPLEMENTARY INFORMATION:

Background

    Chapter Nineteen of NAFTA establishes a mechanism for replacing 
judicial review of final antidumping and countervailing duty 
determinations involving imports from Canada, Mexico or the United 
States with review by independent binational panels. If requested, 
these panels will review final determinations to determine whether they 
are consistent with the antidumping or countervailing duty law of the 
importing country. Title IV of the North American Free Trade Agreement 
Implementation Act of 1993, Public Law No. 103-182, 107 Stat. 2057, 
amended United States law to implement Chapter Nineteen of the 
Agreement. See, e.g., 19 U.S.C. 3431 et. seq.; see also 19 CFR 356.1, 
et. seq.
    The NAFTA Rules of Procedure for Article 1904 Binational Panel 
Reviews are intended to give effect to the panel review provisions of 
Chapter Nineteen of the Agreement by setting forth the procedures for 
commencing, conducting, and completing panel reviews. Originally 
published in 1994, these rules were the result of negotiations among 
Canada, Mexico, and the United States in compliance with the terms of 
the Agreement. See North American Free Trade Agreement: Rules of 
Procedure for Article 1904 Binational Panel Reviews, 59 Fed. Reg. 8685 
(Feb. 23, 1994). In August 2007, Canada, Mexico, and the United States, 
through the NAFTA Free Trade Commission, agreed to amend the NAFTA 
Rules of Procedure for Article 1904 Binational Panel Reviews. These 
amendments provide technical changes to the rules based on changes in 
the governments of Canada and Mexico. These amendments also provide 
technical changes based on the experience of the NAFTA Secretariats and 
participants in the binational review process. In addition and 
consistent with the agreement reached through the NAFTA Free Trade 
Commission, these amendments require a participant other than an 
individual (e.g., corporate persons) to be represented by a counsel of 
record.
    The NAFTA Rules of Procedure for Article 1904 Binational Panel 
Reviews are amended as described below. Following a description of the 
amendments is a reproduction of the rules incorporating these 
amendments. These rules as well as other NAFTA Chapter 19 dispute 
resolution provisions are also available at: https://www.nafta-sec-
alena.org.

Amendments to NAFTA Rules of Procedure for Article 1904 Binational 
Panel Reviews

Amendments to Rule 3

    Rule 3 is amended in light of changes to the governments of Canada 
and Mexico. Rule 3 is amended as follows:
    The definitions in rule 3 of ``privileged information'', 
``Proprietary Information Access Application'' and ``Proprietary 
Information Access Order'' are amended by replacing the words 
``Secretari[aacute] de Comercio y Fomento Industrial'' with 
``Secretar[iacute]a de Econom[iacute]a.''
    The definition in rule 3 of ``Deputy Minister'' is repealed.
    The following definition is added to rule 3 following the 
definition of ``Agreement'':

    `` `CBSA President' means the President of the Canada Border 
Services Agency appointed under subsection 7(1) of the Canada Border 
Services Agency Act, or the successor thereto, and includes any 
person authorized to perform a power, duty or function of the CBSA 
President under the Special Import Measures Act, as amended; '' and
    The words ``Deputy Minister'' are replaced by the words ``CBSA 
President'' in the definitions in rule 3 of ``Proprietary 
Information Access Application'', ``Proprietary Information Access 
Order'' and ``service list''.

Amendments to Rule 11

    Rule 11 is amended to clarify which documents the responsible 
Secretary shall forward to the other involved Secretary, and to clarify 
that absent an explicit written request, only non-privileged and non-
proprietary documents will be forwarded. Rule 11 is amended as follows:
    11. (1) The responsible Secretary shall forward to the other 
involved Secretary all orders and decisions issued by the panel. The 
responsible Secretary shall also forward to the other involved 
Secretary a copy of all documents filed in the office of the 
responsible Secretary that are not clearly marked as privileged or 
proprietary pursuant to subrules 44(2) and 56(1)(a).
    (2) If an involved Secretariat makes a written request to the 
responsible Secretary requesting any privileged or proprietary 
documents, the responsible Secretary shall forward such documents to 
the involved Secretariat forthwith.

Amendments to Rule 13

    Rule 13 is amended in light of changes to the governments of Canada 
and Mexico. Rule 13 is amended as follows:
    The words in subrule 13(1) ``Secretari[aacute] de Comercio y 
Fomento

[[Page 19459]]

Industrial'' are replaced by ``Secretar[iacute]a de Econom[iacute]a''. 
The words in subrule 13(1) ``Deputy Minister'' are replaced by the 
words ``CBSA President''.

Amendments to Rule 21

    Rule 21 is amended to clarify that participants other than 
individuals (e.g., corporate persons) must be represented by a counsel 
of record. Rule 21 is amended as follows:
    21. * * *
    (3) A participant other than an individual must be represented by a 
counsel of record.

Amendments to Rule 22

    Rule 22 is amended to clarify that Information Access Orders are 
exempt from the general multiple copy filing requirements found in Rule 
22(1). Rule 22 is amended as follows:
    22. (1) Subject to subrule 46(1), rule 47 and subrules 50(1), 52(3) 
and 73(2)(a), no document is filed with the Secretariat until one 
original and eight copies of the document are received by the 
responsible Secretariat during its normal business hours within the 
time period fixed for filing.

Amendments to Rule 50

    Rule 50 is amended to clarify that in filing an Information Access 
Order with the responsible Secretariat, parties should comply with the 
applicable regulations of the administering authority. Rule 50 is 
amended as follows:
    50. (1) Where a proprietary Information Access Order is issued to a 
person in a panel review, the person shall file with the responsible 
Secretariat, pursuant to the applicable regulations of the 
investigating authority, a copy of the Proprietary Information Access 
Order.

Amendments to Rule 71

    Rule 71 is amended to establish that if a timely complaint is not 
filed, the responsible Secretariat will issue a notice terminating 
panel review. Rule 71 is amended as follows:
    71. * * *
    (3) A panel review is deemed to be terminated on the day after the 
expiration of the limitation period established pursuant to subrule 
39(1) if no Complaint has been filed in a timely manner. The 
responsible Secretariat shall issue a Notice of Completion of Panel 
Review.

Amendments to Rule 73

    Rule 73 is amended to clarify the number of copies of a remand 
Index and non-privileged items on the Index that the investigating 
authority shall file with the responsible Secretariat. In addition, 
Rule 73 is amended to clarify that the investigating authority must 
serve the remand Index on the counsel of record or, absent a counsel of 
record, on the participant(s), as well as file proof of that service 
with the responsible Secretariat. Rule 73 is amended as follows:
    73. (2)(a) the investigating authority shall file with the 
responsible Secretariat two copies of an Index listing each item in the 
supplementary remand record, together with proof of service of the 
Index on the counsel of record of each of the participants, or where a 
participant is not represented by counsel, on the participant, and two 
copies of each non-privileged item listed in that Index, within five 
days after the date in which the investigating authority filed the 
Determination on Remand with the panel;

Amendments to Rule 78

    Rule 78 is amended to harmonize the NAFTA Rules of Procedure for 
Article 1904 Binational Panel Reviews with the NAFTA Rules of 
Procedures for Article 1904 Extraordinary Challenge Committees. This 
amendment clarifies the effective date of a Notice of Completion of 
Panel Review when no Request for an Extraordinary Challenge Committee 
is filed and a panel has not been terminated pursuant to subrule 71(2). 
Rule 78 is amended as follows:
    78. * * *
    (b) in any other case, on the day after the expiration of the 
limitation period established pursuant to subrules 37(1) and 37(2)(a) 
of the NAFTA Extraordinary Challenge Committee Rules.

North American Free Trade Agreement Rules of Procedure for Article 1904 
Binational Panel Reviews

Contents

Preamble
Rule
    1. Short Title
    2. Statement of General Intent
    3. Definitions and Interpretation
Part I--General
    6. Duration and Scope of Panel Review
    8. Responsibilities of the Secretary
    17. Internal Functioning of Panels
    19. Computation of Time
    21. Counsel of Record
    22. Filing, Service and Communications
    28. Pleadings and Simultaneous Translation of Panel Reviews in 
Canada
    32. Costs
Part II--Commencement of Panel Review
    33. Notice of Intent To Commence Judicial Review
    34. Request for Panel Review
    36. Joint Panel Reviews
    39. Complaint
    40. Notice of Appearance
    41. Record for Review
Part III--Panels
    42. Announcement of Panel
    43. Violation of Code of Conduct
Part IV--Proprietary and Privileged Information
    44. Filing or Service Under Seal
    46. Proprietary Information Access Orders
    52. Privileged Information
    54. Violations of Proprietary Information Access Applications or 
Orders
Part V--Written Proceedings
    55. Form and Content of Pleadings
    57. Filing of Briefs
    58. Failure to File Briefs
    59. Content of Briefs and Appendices
    60. Appendix to the Briefs
    61. Motions
Part VI--Oral Proceedings
    65. Location
    66. Pre-Hearing Conference
    67. Oral Argument
    68. Subsequent Authorities
    69. Oral Proceedings in Camera
Part VII--Decisions and Completions of Panel Reviews
    70. Orders, Decisions and Terminations
    73. Panel Review of Action on Remand
    75. Re-examination of Orders and Decisions
Part VIII--Completion of Panel Review
    81. Stays and Suspensions
Schedule--Procedural Forms
Preamble

The Parties

    Having regard to Chapter Nineteen of the North American Free Trade 
Agreement between Canada, the United Mexican States and the United 
States of America; Acting pursuant to Article 1904.14 of the Agreement;
    Adopted Rules of Procedure governing all panel reviews conducted 
pursuant to Article 1904 of the Agreement; and now
    Adopt the following amended Rules of Procedure, which will take 
effect in Canada from the date of their publication in the Canada 
Gazette, in Mexico from the date of their publication in the Diario 
Oficial de la Federaci[oacute]n, and in the United States from the date 
of their publication in the Federal Register, for panels requested 
pursuant to Article 1904(2) of the North American Free Trade Agreement 
following such publication.

Short Title

    1. These rules may be cited as the NAFTA Article 1904 Panel Rules.

Statement of General Intent

    2. These rules are intended to give effect to the provisions of 
Chapter Nineteen of the Agreement with respect to panel reviews 
conducted pursuant to Article 1904 of the Agreement and are designed to 
result in decisions of panels within 315 days after the commencement of 
the panel review.

[[Page 19460]]

The purpose of these rules is to secure the just, speedy and 
inexpensive review of final determinations in accordance with the 
objectives and provisions of Article 1904. Where a procedural question 
arises that is not covered by these rules, a panel may adopt the 
procedure to be followed in the particular case before it by analogy to 
these rules or may refer for guidance to rules of procedure of a court 
that would otherwise have had jurisdiction in the importing country. In 
the event of any inconsistency between the provisions of these rules 
and the Agreement, the Agreement shall prevail.

Definitions and Interpretation

    3. In these rules,
    ``Agreement'' means the North American Free Trade Agreement;
    ``CBSA President'' means the President of the Canada Border 
Services Agency appointed under subsection 7(1) of the Canada Border 
Services Agency Act, or the successor thereto, and includes any person 
authorized to perform a power, duty or function of the CBSA President 
under the Special Import Measures Act, as amended;
    ``Code of Conduct'' means the code of conduct established by the 
Parties pursuant to Article 1909 of the Agreement;
    ``complainant'' means a Party or interested person who files a 
Complaint pursuant to rule 39;
    ``counsel'' means
    (a) With respect to a panel review of a final determination made in 
Canada, a person entitled to appear as counsel before the Federal Court 
of Canada,
    (b) With respect to a panel review of a final determination made in 
Mexico, a person entitled to appear as counsel before the Tribunal 
Fiscal de la Federacion, and
    (c) With respect to a panel review of a final determination made in 
the United States, a person entitled to appear as counsel before a 
federal court in the United States;
    ``counsel of record'' means a counsel referred to in subrule 21(1);
    ``final determination'' means, in the case of Canada, a definitive 
decision within the meaning of subsection 77.01(1) of the Special 
Import Measures Act, as amended;
    ``first Request for Panel Review'' means
    (a) Where only one Request for Panel Review is filed for review of 
a final determination, that Request, and
    (b) Where more than one Request for Panel Review is filed for 
review of the same final determination, the Request that is filed 
first;
    ``government information'' means
    (a) With respect to a panel review of a final determination made in 
Canada, information
    (i) The disclosure of which would be injurious to international 
relations or national defence or security,
    (ii) That constitutes a confidence of the Queen's Privy Council for 
Canada, or
    (iii) Contained in government-to-government correspondence that is 
transmitted in confidence,
    (b) With respect to a panel review of a final determination made in 
Mexico, information the disclosure of which is prohibited under the 
laws and regulations of Mexico, including
    (i) Data, statistics and documents referring to national security 
and strategic activities for scientific and technological development, 
and
    (ii) Information contained in government-to-government 
correspondence that is transmitted in confidence, and
    (c) With respect to a panel review of a final determination made in 
the United States, information classified in accordance with Executive 
Order No. 12065 or its successor;
    ``interested person'' means a person who, pursuant to the laws of 
the country in which a final determination was made, would be entitled 
to appear and be represented in a judicial review of the final 
determination;
    ``investigating authority'' means the competent investigating 
authority that issued the final determination subject to review and 
includes, in respect of the issuance, amendment, modification or 
revocation of a Proprietary Information Access Order, any person 
authorized by the investigating authority;
    ``involved Secretariat'' means the section of the Secretariat 
located in the country of an involved Party;
    ``legal holiday'' means
    (a) With respect to the Canadian Section of the Secretariat, every 
Saturday and Sunday, New Year's Day (January 1), Good Friday, Easter 
Monday, Victoria Day, Canada Day (July 1), Labour Day (first Monday in 
September), Thanksgiving Day (second Monday in October), Remembrance 
Day (November 11), Christmas Day (December 25), Boxing Day (December 
26), any other day fixed as a statutory holiday by the Government of 
Canada or by the province in which the Section is located and any day 
on which the offices of the Canadian Section of the Secretariat are 
officially closed in whole or in part,
    (b) With respect to the Mexican Section of the Secretariat, every 
Saturday and Sunday, New Year's Day (January 1), Constitution Day 
(February 5), Benito Juarez's Birthday (March 21), Labor Day (May 1), 
Battle of Puebla (May 5), Independence Day (September 16), 
Congressional Opening Day (November 1), Revolution Day (November 20), 
Transmission of the Federal Executive Branch (every six years on 
December 1), Christmas Day (December 25), any day designated as a 
statutory holiday by the Federal Laws or, in the case of Ordinary 
Elections, by the Local Electoral Laws and any day on which the offices 
of the Mexican Section of the Secretariat are officially closed in 
whole or in part, and
    (c) With respect to the United States Section of the Secretariat, 
every Saturday and Sunday, New Year's Day (January 1), Martin Luther 
King's Birthday (third Monday in January), Presidents' Day (third 
Monday in February), Memorial Day (last Monday in May), Independence 
Day (July 4), Labor Day (first Monday in September), Columbus Day 
(second Monday in October), Veterans' Day (November 11), Thanksgiving 
Day (fourth Thursday in November), Christmas Day (December 25), any day 
designated as a holiday by the President or the Congress of the United 
States and any day on which the offices of the Government of the United 
States located in the District of Columbia or the offices of the United 
States Section of the Secretariat are officially closed in whole or in 
part;
    ``Mexico'' means the United Mexican States;
    ``official publication'' means
    (a) In the case of the Government of Canada, the Canada Gazette;
    (b) In the case of the Government of Mexico, the Diario Oficial de 
la Federacion, and
    (c) In the case of the Government of United States, the Federal 
Register;
    ``panel'' means a binational panel established pursuant to Annex 
1901.2 to Chapter Nineteen of the Agreement for the purpose of 
reviewing a final determination;
    ``participant'' means any of the following persons who files a 
Complaint pursuant to rule 39 or a Notice of Appearance pursuant to 
rule 40:
    (a) A Party,
    (b) An investigating authority, and
    (c) An interested person;
    ``Party'' means the Government of Canada, the Government of Mexico 
or the Government of the United States;
    ``person'' means ``
    (a) An individual,
    (b) A Party,
    (c) An investigating authority,
    (d) A government of a province, state or other political 
subdivision of the country of a Party,

[[Page 19461]]

    (e) A department, agency or body of a Party or of a government 
referred to in paragraph (d), or
    (f) A partnership, corporation or association;
    ``pleading'' means a Request for Panel Review, a Complaint, a 
Notice of Appearance, a Change of Service Address, a Notice of Motion, 
a Notice of Change of Counsel of Record, a brief or any other written 
submission filed by a participant;
    ``privileged information'' means
    (a) With respect to a panel review of a final determination made in 
Canada, information of the investigating authority that is subject to 
solicitor-client privilege under the laws of Canada, or that 
constitutes part of the deliberative process with respect to the final 
determination, and with respect to which the privilege has not been 
waived,
    (b) With respect to a panel review of a final determination made in 
Mexico,
    (i) Information of the investigating authority that is subject to 
attorney-client privilege under the laws of Mexico, or
    (ii) Internal communications between officials of the Secretaria de 
Economia in charge of antidumping and countervailing duty 
investigations or communications between those officials and other 
government officials, where those communications constitute part of the 
deliberative process with respect to the final determination, and
    (c) With respect to a panel review of a final determination made in 
the United States, information of the investigating authority that is 
subject to the attorney-client, attorney work product or government 
deliberative process privilege under the laws of the United States with 
respect to which the privilege has not been waived;
    ``proof of service'' means
    (a) With respect to a panel review of a final determination made in 
Canada or Mexico,
    (i) An affidavit of service stating by whom the document was 
served, the date on which it was served, where it was served and the 
manner of service, or
    (ii) An acknowledgement of service by counsel for a participant 
stating by whom the document was served, the date on which it was 
served and the manner of service and, where the acknowledgment is 
signed by a person other than the counsel, the name of that person 
followed by a statement that the person is signing as agent for the 
counsel, and
    (b) With respect to a panel review of a final determination made in 
the United States, a certificate of service in the form of a statement 
of the date and manner of service and of the name of the person served, 
signed by the person who made service;
    ``proprietary information'' means
    (a) With respect to a panel review of a final determination made in 
Canada, information referred to in subsection 84(3) of the Special 
Import Measures Act, as amended, or subsection 45(3) of the Canadian 
International Trade Tribunal Act, as amended, with respect to which the 
person who designated or submitted the information has not withdrawn 
the person's claim as to the confidentiality of the information,
    (b) With respect to a panel review of a final determination made in 
Mexico, informacion confidencial, as defined under article 80 of the 
Ley de Comercio Exterior and its regulations, and
    (c) With respect to a panel review of a final determination made in 
the United States, business proprietary information under section 
777(f) of the Tariff Act of 1930, as amended, and any regulations made 
under that Act;
    ``Proprietary Information Access Application'' means
    (a) With respect to a panel review of a final determination made in 
Canada, a disclosure undertaking in the prescribed form, which form
    (i) In respect of a final determination by the CBSA President, is 
available from the CBSA President, and
    (ii) In respect of a final determination by the Tribunal, is 
available from the Tribunal,
    (b) With respect to a panel review of a final determination made in 
Mexico, a disclosure undertaking in the prescribed form, which form is 
available from the Secretaria de Economia, and
    (c) With respect to a panel review of a final determination made in 
the United States, a Protective Order Application
    (i) In respect of a final determination by the International Trade 
Administration of the United States Department of Commerce, in a form 
prescribed by, and available from, the International Trade 
Administration of the United States Department of Commerce, and
    (ii) In respect of a final determination by the United States 
International Trade Commission, in a form prescribed by, and available 
from, the United States International Trade Commission;
    ``Proprietary Information Access Order'' means
    (a) In the case of Canada, a Disclosure Order issued by the CBSA 
President or the Tribunal pursuant to a Proprietary Information Access 
Application,
    (b) in the case of Mexico, a Disclosure Order issued by the 
Secretaria de Economia pursuant to a Proprietary Information Access 
Application, and
    (c) In the case of the United States, a Protective Order issued by 
the International Trade Administration of the United States Department 
of Commerce or the United States International Trade Commission 
pursuant to a Proprietary Information Access Application;
    ``responsible Secretariat'' means the section of the Secretariat 
located in the country in which the final determination under review 
was made;
    ``responsible Secretary'' means the Secretary of the responsible 
Secretariat;
    ``Secretariat'' means the Secretariat established pursuant to 
Article 2002 of the Agreement;
    ``Secretary'' means the Secretary of the United States Section of 
the Secretariat, the Secretary of the Mexican Section of the 
Secretariat or the Secretary of the Canadian Section of the Secretariat 
and includes any person authorized to act on behalf of that Secretary;
    ``service address'' means
    (a) With respect to a Party, the address filed with the Secretariat 
as the service address of the Party, including any facsimile number 
submitted with that address,
    (b) With respect to a participant other than a Party, the address 
of the counsel of record for the person, including any facsimile number 
submitted with that address or, where the person is not represented by 
counsel, the address set out by the participant in a Request for Panel 
Review, Complaint or Notice of Appearance as the address at which the 
participant may be served, including any facsimile number submitted 
with that address, or
    (c) Where a Change of Service Address has been filed by a Party or 
participant, the address set out as the new service address in that 
form, including any facsimile number submitted with that address;
    ``service list'' means, with respect to a panel review,
    (a) Where the final determination was made in Canada, a list 
comprising the other involved Party and
    (i) In the case of a final determination made by the CBSA 
President, persons named on the list maintained by the CBSA President 
who participated in the proceedings before the CBSA President and who 
were exporters or importers of goods of the country of the other 
involved Party or complainants referred to in section 34 of the Special 
Import Measures Act, as amended, and
    (ii) In the case of a final determination made by the Tribunal, 
persons named on the list maintained by the Tribunal

[[Page 19462]]

of parties in the proceedings before the Tribunal who were exporters or 
importers of goods of the country of the other involved Party, 
complainants referred to in section 31 of the Special Import Measures 
Act, as amended, or other domestic parties whose interest in the 
findings of the Tribunal is with respect to goods of the country of the 
other involved Party, and
    (b) Where the final determination was made in Mexico or the United 
States, the list, maintained by the investigating authority of persons 
who have been served in the proceedings leading to the final 
determination;
    ``Tribunal'' means the Canadian International Trade Tribunal or its 
successor and includes any person authorized to act on its behalf;
    ``United States'' means the United States of America.
    4. The definitions set forth in Article 1911 of the Agreement and 
Annex 1911 to Chapter Nineteen of the Agreement are hereby incorporated 
into these rules.
    5. Where these rules require that notice be given, it shall be 
given in writing.

Part I--General

Duration and Scope of Panel Review

    6. A panel review commences on the day on which a first Request for 
Panel Review is filed with the Secretariat and terminates on the day on 
which a Notice of Completion of Panel Review is effective.
    7. A panel review shall be limited to
    (a) The allegations of error of fact or law, including challenges 
to the jurisdiction of the investigating authority, that are set out in 
the Complaints filed in the panel review; and
    (b) Procedural and substantive defenses raised in the panel review.

Responsibilities of the Secretary

    8. The normal business hours of the Secretariat, during which the 
offices of the Secretariat shall be open to the public, shall be from 9 
a.m. to 5 p.m. on each weekday other than
    (a) In the case of the United States Section of the Secretariat, 
legal holidays of that Section;
    (b) In the case of the Canadian Section of the Secretariat, legal 
holidays of that Section; and
    (c) In the case of the Mexican Section of the Secretariat, legal 
holidays of that Section.
    9. The responsible Secretary shall provide administrative support 
for each panel review and shall make the arrangements necessary for the 
oral proceedings and meetings of each panel, including, if required, 
interpreters to provide simultaneous translation.
    10. (1) Each Secretary shall maintain a file for each panel review. 
Subject to subrules (3) and (4), the file shall be comprised of either 
the original or a copy of all documents filed, whether or not filed in 
accordance with these rules, in the panel review.
    (2) The file number assigned to a first Request for Panel Review 
shall be the Secretariat file number for all documents filed or issued 
in that panel review. All documents filed shall be stamped by the 
Secretariat to show the date and time of receipt.
    (3) Where, after notification of the selection of a panel pursuant 
to rule 42, a document is filed that is not provided for in these rules 
or that is not in accordance with the rules, the responsible Secretary 
may refer the unauthorized filing to the chairperson of the Panel for 
instructions, provided such authority has been delegated by the Panel 
to its chairperson pursuant to rule 17.
    (4) On a referral referred to in subrule (3), the chairperson may 
instruct the responsible Secretary to
    (a) Retain the document in the file, without prejudice to a motion 
to strike such document; or
    (b) Return the document to the person who filed the document, 
without prejudice to a motion for leave to file the document.
    11. (1) The responsible Secretary shall forward to the other 
involved Secretary all orders and decisions issued by the panel. The 
responsible Secretary shall also forward to the other involved 
Secretary a copy of all documents filed in the office of the 
responsible Secretary that are not clearly marked as privileged or 
proprietary pursuant to subrules 44(2) and 56(1)(a).
    (2) If an involved Secretariat makes a written request to the 
responsible Secretary requesting any privileged or proprietary 
documents, the responsible Secretary shall forward such documents to 
the involved Secretariat forthwith.
    12. Where under these rules a responsible Secretary is required to 
publish a notice or other document in the official publications of the 
involved Parties, the responsible Secretary and the other involved 
Secretary shall cause the notice or other document to be published in 
the official publication of the country in which that section of the 
Secretariat is located.
    13. (1) Each Secretary and every member of the staff of the 
Secretariat shall, before taking up duties, file a Proprietary 
Information Access Application with each of the CBSA President, the 
Tribunal, the Secretaria de Economia, the International Trade 
Administration of the United States Department of Commerce and the 
United States International Trade Commission.
    (2) Where a Secretary or a member of the staff of the Secretariat 
files a Proprietary Information Access Application in accordance with 
subrule (1), the appropriate investigating authority shall issue to the 
Secretary or to the member a Proprietary Information Access Order.
    14. (1) The responsible Secretary shall file with the investigating 
authority one original, and any additional copies required by the 
investigating authority, of every Proprietary Information Access 
Application and any amendments or modifications thereto, filed by a 
panelist, assistant to a panelist, court reporter, interpreter or 
translator pursuant to rule 47.
    (2) The responsible Secretary shall ensure that every panelist, 
assistant to a panelist, court reporter, interpreter and translator, 
before taking up duties in a panel review, files with the responsible 
Secretariat a copy of a Proprietary Information Access Order.
    15. Where a document containing proprietary information or 
privileged information is filed with the responsible Secretariat, each 
involved Secretary shall ensure that
    (a) The document is stored, maintained, handled and distributed in 
accordance with the terms of any applicable Proprietary Information 
Access Order;
    (b) The inner wrapper of the document is clearly marked to indicate 
that it contains proprietary information or privileged information; and
    (c) Access to the document is limited to officials of, and counsel 
for, the investigating authority whose final determination is under 
review and
    (i) In the case of proprietary information, the person who 
submitted the proprietary information to the investigating authority or 
counsel for that person and any persons who have been granted access to 
the information under a Proprietary Information Access Order with 
respect to the document, and
    (ii) In the case of privileged information filed in a panel review 
of a final determination made in the United States, persons with 
respect to whom the panel has ordered disclosure of the privileged 
information under rule 52, if the persons have filed with the 
responsible Secretariat a Proprietary Information Access Order with 
respect to the document.
    16. (1) Each Secretary shall permit access by any person to the 
information in the file in a panel review that is not

[[Page 19463]]

proprietary information or privileged information and shall provide 
copies of that information on request and payment of an appropriate 
fee.
    (2) Each Secretary shall, in accordance with subrule 15(c) and the 
terms of the applicable Proprietary Information Access Order or order 
of the panel,
    (a) Permit access to proprietary information or privileged 
information in the file of a panel review; and
    (b) On payment of an appropriate fee, provide a copy of the 
information referred to in subrule (a).
    (3) No document filed in a panel review shall be removed from the 
offices of the Secretariat except in the ordinary course of the 
business of the Secretariat or pursuant to the direction of a panel.

Internal Functioning of Panels

    17. (1) A panel may adopt its own internal procedures, not 
inconsistent with these rules, for routine administrative matters.
    (2) A panel may delegate to its chairperson
    (a) The authority to accept or reject filings in accordance with 
subrule 10(4); and
    (b) The authority to grant motions consented to by all 
participants, other than a motion filed pursuant to rule 20 or 52, a 
motion for remand of a final determination or a motion that is 
inconsistent with an order or decision previously made by the panel.
    (3) A decision of the chairperson referred to in subrule (2) shall 
be issued as an order of the panel.
    (4) Subject to subrule 26(b), meetings of a panel may be conducted 
by means of a telephone conference call.
    18. Only panelists may take part in the deliberations of a panel, 
which shall take place in private and remain secret. Staff of the 
involved Secretariats and assistants to panelists may be present by 
permission of the panel.

Computation of Time

    19. (1) In computing any time period fixed in these rules or by an 
order or decision of a panel, the day from which the time period begins 
to run shall be excluded and, subject to subrule (2), the last day of 
the time period shall be included.
    (2) Where the last day of a time period computed in accordance with 
subrule (1) falls on a legal holiday of the responsible Secretariat, 
that day and any other legal holidays of the responsible Secretariat 
immediately following that day shall be excluded from the computation.
    20. (1) A panel may extend any time period fixed in these rules if
    (a) Adherence to the time period would result in unfairness or 
prejudice to a participant or the breach of a general legal principle 
of the country in which the final determination was made;
    (b) The time period is extended only to the extent necessary to 
avoid the unfairness, prejudice or breach;
    (c) The decision to extend the time period is concurred in by four 
of the five panelists; and
    (d) In fixing the extension, the panel takes into account the 
intent of the rules to secure just, speedy and inexpensive reviews of 
final determinations.
    (2) A participant may request an extension of time by filing a 
Notice of Motion no later than the tenth day prior to the last day of 
the time period. Any response to the Notice of Motion shall be filed no 
later than seven days after the Notice of Motion is filed.
    (3) A participant who fails to request an extension of time 
pursuant to subrule (2) may file a notice of motion for leave to file 
out of time, which shall include reasons why additional time is 
required and why the participant has failed to comply with the 
provisions of subrule (2).
    (4) The panel will normally rule on such a motion before the last 
day of the time period which is the subject of the motion.

Counsel of Record

    21. (1) A counsel who signs a document filed pursuant to these 
rules on behalf of a participant shall be the counsel of record for the 
participant from the date of filing until a change is effected in 
accordance with subrule (2).
    (2) A participant may change its counsel of record by filing with 
the responsible Secretariat a Notice of Change of Counsel of Record 
signed by the new counsel, together with proof of service on the former 
counsel and other participants.
    (3) A participant other than an individual must be represented by a 
counsel of record.

Filing, Service and Communications

    22. (1) Subject to subrule 46(1), rule 47 and subrules 50(1), 52(3) 
and 73(2)(a), no document is filed with the Secretariat until one 
original and eight copies of the document are received by the 
responsible Secretariat during its normal business hours and within the 
time period fixed for filing.
    (2) The responsible Secretariat shall accept, date and time stamp 
and place in the appropriate file every document submitted to the 
responsible Secretariat.
    (3) Receipt, date and time stamping or placement in the file of a 
document by the responsible Secretariat does not constitute a waiver of 
any time period fixed for filing or an acknowledgement that the 
document has been filed in accordance with these rules.
    23. The responsible Secretary shall be responsible for the service 
of
    (a) Notices of Intent to Commence Judicial Review and Complaints on 
Each Party;
    (b) Requests for Panel Review on the Parties, the investigating 
authority and the persons listed on the service list; and
    (c) Notices of Appearance, Proprietary Information Access Orders 
granted to panelists, assistants to panelists, court reporters, 
interpreter or translators and any amendments or modifications thereto 
or notices of revocation thereof, decisions and orders of a panel, 
Notices of Final Panel Action and Notices of Completion of Panel Review 
on the participants.
    24. (1) Subject to subrules (4) and (5), all documents filed by a 
participant, other than the administrative record, any supplementary 
remand record and any document required by rule 23 to be served by the 
responsible Secretary, shall be served by the participant on the 
counsel of record of each of the other participants, or where a 
participant is not represented by counsel, on the participant.
    (2) A proof of service shall appear on, or be affixed to, all 
documents referred to in subrule (1).
    (3) Where a document is served by expedited delivery courier or 
expedited mail service, the date of service set out in the affidavit of 
service or certificate of service shall be the day on which the 
document is consigned to the expedited delivery courier or expedited 
mail service.
    (4) A document containing proprietary information or privileged 
information shall be filed and served under seal in accordance with 
rule 44, and shall be served only on
    (a) The investigating authority; and
    (b) Participants who have been granted access to the proprietary 
information or privileged information under a Proprietary Information 
Access Order or an order of the panel.
    (5) A complainant shall serve a Complaint on the investigating 
authority and on all persons listed on the service list.
    25. Subject to subrule 26(a), a document may be served by
    (a) Delivering a copy of the document to the service address of the 
participant;
    (b) Sending a copy of the document to the service address of the 
participant by facsimile transmission or by expedited delivery courier 
or expedited mail

[[Page 19464]]

service, such as express mail in the United States or Priority Post in 
Canada; or
    (c) Personal service on the participant.
    26. Where proprietary information or privileged information is 
disclosed in a panel review to a person pursuant to a Proprietary 
Information Access Order, the person shall not
    (a) File, serve or otherwise communicate the proprietary 
information or privileged information by facsimile transmission; or
    (b) Communicate the proprietary information or privileged 
information by telephone.
    27. Service on an investigating authority does not constitute 
service on a Party and service on a Party does not constitute service 
on an investigating authority.

Pleadings and Simultaneous Translation of Panel Reviews in Canada

    28. Rules 29 to 31 apply with respect to a panel review of a final 
determination made in Canada.
    29. Either English or French may be used by any person or panelist 
in any document or oral proceeding.
    30. (1) Subject to subrule (2), any order or decision including the 
reasons therefor, issued by a panel shall be made available 
simultaneously in both English and French where
    (a) In the opinion of the panel, the order or decision is in 
respect of a question of law of general public interest or importance; 
or
    (b) The proceedings leading to the issuance of the order or 
decision were conducted in whole or in part in both English and French.
    (2) Where
    (a) An order or decision issued by a panel is not required by 
subrule (1) to be made available simultaneously in English and French, 
or
    (b) An order or decision is required by subrule (1)(a) to be made 
available simultaneously in both English and French but the panel is of 
the opinion that to make the order or decision available simultaneously 
in both English and French would occasion a delay prejudicial to the 
public interest or result in injustice or hardship to any participant, 
the order or decision, including the reasons therefor, shall be issued 
in the first instance in either English or French and thereafter at the 
earliest possible time in the other language, each version to be 
effective from the time the first version is effective.
    (3) Nothing in subrule (1) or (2) shall be construed as prohibiting 
the oral delivery in either English or French of any order or decision 
or any reasons therefor.
    (4) No order or decision is invalid by reason only that it was not 
made or issued in both English and French.
    31. (1) Any oral proceeding conducted in both English and French 
shall be translated simultaneously.
    (2) Where a participant requests simultaneous translation of oral 
proceedings in a panel review, the request shall be made as early as 
possible in the panel review and preferably at the time of filing a 
Complaint or Notice of Appearance.
    (3) Where the chairperson of a panel is of the opinion that there 
is a public interest in the panel review, the chairperson may direct 
the responsible Secretary to arrange for simultaneous translation of 
any of the oral proceedings in the panel review.

Costs

    32. Each participant shall bear the costs of, and those incidental 
to, its own participation in a panel review.

Part II--Commencement of Panel Review

Notice of Intent To Commence Judicial Review

    33. (1) Where an interested person intends to commence judicial 
review of a final determination, the interested person shall
    (a) Where the final determination was made in Canada, publish a 
notice to that effect in the Canada Gazette and serve a Notice of 
Intent to Commence Judicial Review on both involved Secretaries and on 
all persons listed on the service list; and
    (b) Where the final determination was made in Mexico or the United 
States, within 20 days after the date referred to in subrule (3)(b) or 
(c), serve a Notice of Intent to Commence Judicial Review on
    (i) Both involved Secretaries,
    (ii) The investigating authority, and
    (iii) All persons listed on the service list.
    (2) Where the final determination referred to in subrule (1) was 
made in Canada, the Secretary of the Canadian Section of the 
Secretariat shall serve a copy of the Notice of Intent to Commence 
Judicial Review on the investigating authority.
    (3) Every Notice of Intent to Commence Judicial Review referred to 
in subrule (1) shall include the following information (model form 
provided in the Schedule):
    (a) The information set out in subrules 55(1)(c) to (f);
    (b) The title of the final determination for which judicial review 
is sought, the investigating authority that issued the final 
determination, the file number assigned by the investigating authority 
and, if the final determination was published in an official 
publication, the appropriate citation, including the date of 
publication; and
    (c) The date on which the notice of the final determination was 
received by the other Party if the final determination was not 
published in an official publication.

Request for Panel Review

    34. (1) A Request for Panel Review shall be made in accordance with 
the requirements of
    (a) Section 77.011 or 96.21 of the Special Import Measures Act, as 
amended, and any regulations made thereunder;
    (b) Section 516A of the Tariff Act of 1930, as amended, and any 
regulations made thereunder;
    (c) Section 404 of the United States North American Free Trade 
Agreement Implementation Act and any regulations made thereunder; or
    (d) Articles 97 and 98 of the Ley de Comercio Exterior and its 
regulations.
    (2) A Request for Panel Review shall contain the following 
information (model form provided in the Schedule):
    (a) The information set out in subrule 55(1);
    (b) The title of the final determination for which panel review is 
requested, the investigating authority that issued the final 
determination, the file number assigned by the investigating authority 
and, if the final determination was published in an official 
publication, the appropriate citation;
    (c) The date on which the notice of the final determination was 
received by the other Party if the final determination was not 
published in an official publication;
    (d) Where a Notice of Intent to Commence Judicial Review has been 
served and the sole reason that the Request for Panel Review is made is 
to require review of the final determination by a panel, a statement to 
that effect; and
    (e) The service list, as defined in rule 3.
    35. (1) On receipt of a first Request for Panel Review, the 
responsible Secretary shall
    (a) Forthwith forward a copy of the Request to the other involved 
Secretary;
    (b) Forthwith inform the other involved Secretary of the 
Secretariat file number; and
    (c) Serve a copy of the first Request for Panel Review on the 
persons listed on the service list together with a statement setting 
out the date on which the Request was filed and stating that

[[Page 19465]]

    (i) A Party or interested person may challenge the final 
determination in whole or in part by filing a Complaint in accordance 
with rule 39 within 30 days after the filing of the first Request for 
Panel Review.
    (ii) A Party, an investigating authority or other interested person 
who does not file a Complaint but who intends to participate in the 
panel review shall file a Notice of Appearance in accordance with rule 
40 within 45 days after the filing of the first Request for Panel 
Review, and
    (iii) The panel review will be limited to the allegations of error 
of fact or law, including challenges to the jurisdiction of the 
investigating authority, that are set out in the Complaints filed in 
the panel review and to the procedural and substantive defenses raised 
in the panel review.
    (2) On the filing of a first Request for Panel Review, the 
responsible Secretary shall forthwith publish a notice of that Request 
in the official publications of the involved Parties, stating that a 
Request for Panel Review has been received and specifying the date on 
which the Request was filed, the final determination for which panel 
review is requested and the information set out in subrule (1)(c).

Joint Panel Reviews

    36. (1) Subject to rule 37, where
    (a) A panel is established to review a final determination made 
under paragraph 41(1)(a) of the Special Import Measures Act, as 
amended, with respect to particular goods of the United States or 
Mexico and a Request for Panel Review of a final determination made 
under subsection 43(1) of that Act with respect to those goods is 
filed, or
    (b) A panel is established to review a final determination made 
under section 705(a) or 735(a) of the Tariff Act of 1930, as amended, 
with respect to particular goods of Canada or Mexico and a Request for 
Panel Review of a final determination made under section 705(b) or 
735(b) of that Act with respect to those goods is filed, within 10 days 
after that Request is filed, a participant in the former panel review, 
the investigating authority in the latter panel review or an interested 
person listed in the service list of the latter panel review may file a 
motion in the former panel review requesting that both final 
determinations be reviewed jointly by one panel.
    (2) Any participant in the former panel review, the investigating 
authority in the latter panel review or an interested person listed in 
the service list of the latter panel review who certifies an intention 
to become a participant in the latter panel review may, within 10 days 
after a motion is filed under subrule (1), file an objection to the 
motion, in which case the motion shall be deemed to be denied and 
separate panel reviews shall be held.
    37. (1) Where a panel is established to review a final 
determination made under paragraph 41(1)(a) of the Special Import 
Measures Act, as amended, that applies with respect to particular goods 
of the United States or Mexico and a Request for Panel Review of a 
negative final determination made under subsection 43(1) of that Act 
with respect to those goods is filed, the final determinations shall be 
reviewed jointly by one panel.
    (2) Where a panel is established to review a final determination 
made under section 705(a) or 735(a) of the Tariff Act of 1930, as 
amended, that applies with respect to particular goods of Canada or 
Mexico and a Request for Panel Review of a negative final determination 
made under section 705(b) or 735(b) of that Act with respect to those 
goods is filed, the final determinations shall be reviewed jointly by 
one panel.
    38. (1) Subject to subrules (2) and (3), where final determinations 
are reviewed jointly pursuant to rule 36 or 37, the time periods fixed 
under these rules for the review of the final determination made under 
subsection 43(1) of the Special Import Measures Act, as amended, or 
section 705(b) or 735(b) of the Tariff Act of 1930, as amended, shall 
apply to the joint review, commencing with the date fixed for filing 
briefs pursuant to rule 57.
    (2) Unless otherwise ordered by a panel as a result of a motion 
under subrule (3), where final determinations are reviewed jointly 
pursuant to rule 37, the panel shall issue its decision with respect to 
the final determination made under subsection 43(1) of the Special 
Import Measures Act, as amended, or section 705(b) or 735(b) of the 
Tariff Act of 1930, as amended, and where the panel remands the final 
determination to the investigating authority and the Determination on 
Remand is affirmative, the panel shall thereafter issue its decision 
with respect to the final determination made under paragraph 41(1)(a) 
of the Special Import Measures Act, as amended, or section 705(a) or 
735(a) of the Tariff Act of 1930, as amended.
    (3) Where the final determinations are reviewed jointly pursuant to 
rule 36 or 37, any participant may, unilaterally or with the consent of 
the other participants, request by motion that time periods, other than 
the time periods referred to in subrule (1), be fixed for the filing of 
pleadings, oral proceedings, decisions and other matters.
    (4) A Notice of Motion pursuant to subrule (3) shall be filed no 
later than 10 days after the date fixed for filing Notices of 
Appearance in the review of the final determination made under 
subsection 43(1) of the Special Import Measures Act, as amended, or 
section 705(b) or 735(b) of the Tariff Act of 1930, as amended.
    (5) Unless otherwise ordered by a panel, where the panel has not 
issued a ruling on a motion filed pursuant to subrule (3) within 30 
days after the filing of the Notice of Motion, the motion shall be 
deemed denied.

Complaint

    39. (1) Subject to subrule (3), any interested person who intends 
to make allegations of errors of fact or law, including challenges to 
the jurisdiction of the investigating authority, with respect to a 
final determination, shall file with the responsible Secretariat, 
within 30 days after the filing of a first Request for Panel Review of 
the final determination, a Complaint, together with proof of service on 
the investigating authority and on all persons listed on the service 
list.
    (2) Every Complaint referred to in subrule (1) shall contain the 
following information (model form provided in the Schedule):
    (a) The information set out in subrule 55(1);
    (b) The precise nature of the Complaint, including the applicable 
standard of review and the allegations of errors of fact or law, 
including challenges to the jurisdiction of the investigating 
authority;
    (c) A statement describing the interested person's entitlement to 
file a Complaint under this rule; and
    (d) Where the final determination was made in Canada, a statement 
as to whether the complainant
    (i) Intends to use English or French in pleadings and oral 
proceedings before the panel, and
    (ii) Requests simultaneous translation of any oral proceedings.
    (3) Only an interested person who would otherwise be entitled to 
commence proceedings for judicial review of the final determination may 
file a Complaint.
    (4) Subject to subrule (5), an amended Complaint shall be filed no 
later than 5 days before the expiration of the time period for filing a 
Notice of Appearance pursuant to rule 40.
    (5) An amended Complaint may, with leave of the panel, be filed 
after the time limit set out in subrule (4) but no later

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than 20 days before the expiration of the time period for filing briefs 
pursuant to subrule 57(1).
    (6) Leave to file an amended Complaint may be requested of the 
panel by the filing of a Notice of Motion for leave to file an amended 
Complaint accompanied by the proposed amended Complaint.
    (7) Where the panel does not grant a motion referred to in subrule 
(6) within the time period for filing briefs pursuant to subrule 57(1), 
the motion shall be deemed to be denied.

Notice of Appearance

    40. (1) Within 45 days after the filing of a first Request for 
Panel Review of a final determination, the investigating authority and 
any other interested person who proposes to participate in the panel 
review and who has not filed a Complaint in the panel review shall file 
with the responsible Secretariat a Notice of Appearance containing the 
following information (model form provided in the Schedule):
    (a) The information set out in subrule 55(1);
    (b) A Statement as to the basis for the person's claim of 
entitlement to file a Notice of Appearance under this rule;
    (c) In the case of a Notice of Appearance filed by the 
investigating authority, any admissions with respect to the allegations 
set out in the Complaints;
    (d) A statement as to whether appearance is made
    (i) In support of some or all of the allegations set out in a 
Complaint under subrule 39(2)(b), (ii) in opposition to some or all of 
the allegations set out in a Complaint under subrule 39(2)(b), or
    (iii) In support of some of the allegations set out in a Complaint 
under subrule 39(2)(b) and in opposition to some of the allegations set 
out in a Complaint under subrule 39(2)(b); and
    (e) Where the final determination was made in Canada, a statement 
as to whether the person filing the Notice of Appearance.
    (i) Intends to use English or French in pleadings and oral 
proceedings before the panel, and
    (ii) Requests simultaneous translation of any oral proceedings.
    (2) Any complainant who intends to appear in opposition to 
allegations set out in a Complaint under subrule 39(2)(b) shall file a 
Notice of Appearance containing the statements referred to in subrules 
(1)(b) and (1)(d) (ii) or (iii).

Record for Review

    41. (1) The investigating authority whose final determination is 
under review shall, within 15 days after the expiration of the time 
period fixed for filing a Notice of Appearance, file with the 
responsible Secretariat.
    (a) Nine copies of the final determination, including reasons for 
the final determination;
    (b) Two copies of an Index comprised of a descriptive list of all 
items contained in the administrative record, together with proof of 
service of the Index on all participants; and
    (c) Subject to subrules (3), (4) and (5), two copies of the 
administrative record.
    (2) An Index referred to in subrule (1) shall, where applicable, 
identify those items that contain proprietary information, privileged 
information or government information by a statement to that effect.
    (3) Where a document containing proprietary information is filed, 
it shall be filed under seal in accordance with rule 44.
    (4) No privileged information shall be filed with the responsible 
Secretariat unless the investigating authority waives the privilege and 
voluntarily files the information or the information is filed pursuant 
to an order of a panel.
    (5) No government information shall be filed with the responsible 
Secretariat unless the investigating authority, after having reviewed 
the government information and, where applicable, after having pursued 
appropriate review procedures, determines that the information may be 
disclosed.

Part III--Panels

Announcement of Panel

    42. On the completion of the selection of a panel, the responsible 
Secretary shall notify the participants and the other involved 
Secretary of the names of the panelists.

Violation of Code of Conduct

    43. Where a participant believes that a panelist or an assistant to 
a panelist is in violation of the Code of Conduct, the participant 
shall forthwith notify the responsible Secretary in writing of the 
alleged violation. The responsible Secretary shall promptly notify the 
other involved Secretary and the involved Parties of the allegations.

Part IV--Proprietary Information and Privileged Information

Filing or Service Under Seal

    44. (1) Where, under these rules, a document containing proprietary 
information or privileged information is required to be filed under 
seal with the Secretariat or is required to be served under seal, the 
document shall be filed or served in accordance with this rule and, 
where the document is a pleading, in accordance with rule 56.
    (2) A document filed or served under seal shall be
    (a) Bound separately from all other documents;
    (b) Clearly marked.
    (i) With respect to a panel review of a final determination made in 
Canada,
    (A) In the case of a document containing proprietary information, 
``Proprietary'', ``Confidential'', ``De nature exclusive'' or 
``Confidentiel'', and
    (B) In the case of a document containing privileged information, 
``Privileged'' or ``Protege'',
    (ii) With respect to a panel review of a final determination made 
in Mexico,
    (A) In the case of a document containing proprietary information, 
``Confidencial'', and
    (B) In the case of a document containing privileged information, 
``Privilegiada'', and
    (iii) With respect to a panel review of a final determination made 
in the United States,
    (A) In the case of a document containing proprietary information, 
``Proprietary'', and
    (B) In the case of a document containing privileged information, 
``Privileged''; and
    (c) Contained in an opaque inner wrapper and an opaque outer 
wrapper.
    (3) An inner wrapper referred to in subrule (2)(c) shall indicate
    (a) That proprietary information or privileged information is 
enclosed, as the case may be; and
    (b) The Secretariat file number of the panel review.
    45. Filing or service of proprietary information or privileged 
information with the Secretariat does not constitute a waiver of the 
designation of the information as proprietary information or privileged 
information.

Proprietary Information Access Orders

    46. (1) A counsel of record, or a professional retained by, or 
under the control or direction of, a counsel of record, who wishes 
disclosure of proprietary information in a panel review shall file a 
Proprietary Information Access Application with respect to the 
proprietary information as follows:
    (a) With the responsible Secretariat, four copies; and
    (b) With the investigating authority, one original and any 
additional copies that the investigating authority requires.
    (2) A Proprietary Information Access Application referred to in 
subrule (1) shall be served
    (a) Where the Proprietary Information Access Application is filed 
before the

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expiration of the time period fixed for filing a Notice of Appearance 
in the panel review, on the persons listed in the service list; and
    (b) In any other case, on all participants other than the 
investigating authority, in accordance with subrule 24(1).
    47. (1) Every panelist, assistant to a panelist, court reporter, 
interpreter and translator shall, before taking up duties in a panel 
review, provide to the responsible Secretary a Proprietary Information 
Access Application.
    (2) A panelist, assistant to a panelist, court reporter, 
interpreter or translator who amends or modifies a Proprietary 
Information Access Application shall provide the responsible 
Secretariat with a copy of the amendment or modification.
    (3) Where the investigating authority receives, pursuant to subrule 
14(1), a Proprietary Information Access Application or an amendment or 
modification thereto, the investigating authority shall issue a 
Proprietary Information Access Order, amendment or modification 
accordingly.
    48. The investigating authority shall, within 30 days after a 
Proprietary Information Access Application is filed in accordance with 
subrule 46(1), serve on the person who f