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International Trade Administration, North American Free-Trade Agreement (NAFTA), Article 1904 Binational Panel Reviews

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


Notice of decision of panel.


On June 7, 2005 the binational panel issued its decision in the review of the injury determination made by the International Trade Commission, respecting Hard Red Spring Wheat from Canada Final Injury Determination, Secretariat File No. USA-CDA-2003-1904-06. The binational panel remanded the decision to the Commission with one partial dissenting opinion. Copies of the panel decision are available from the U.S. Section of the NAFTA Secretariat.

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Caratina L. Alston, United States Secretary, NAFTA Secretariat, Suite 2061, 14th and Constitution Avenue, Washington, DC 20230, (202) 482-5438.

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Chapter 19 of the North American Free-Trade Agreement (“Agreement”) establishes a mechanism to replace domestic judicial review of final determinations in antidumping and countervailing duty cases involving imports from a NAFTA country with review by independent binational panels. When a Request for Panel Review is filed, a panel is established to act in place of national courts to review expeditiously the final determination to determine whether it conforms with the antidumping or countervailing duty law of the country that made the determination.

Under Article 1904 of the Agreement, which came into force on January 1, 1994, the Government of the United States, the Government of Canada and the Government of Mexico established Rules of Procedure for Article 1904 Binational Panel Reviews (“Rules”). These Rules were published in the Federal Register on February 23, 1994 (59 FR 8686). The panel review in this matter has been conducted in accordance with these Rules.

Panel Decision: The panel remanded the International Trade Commission's final injury determination respecting Hard Red Spring Wheat from Canada with one partial dissenting opinion. The panel remanded the opinion as follows:

1. Explain why record evidence regarding pre- and post-petition prices is not sufficient to rebut the statutory presumption of 19 U.S.C. 1677(7)(I), insofar as post-petition price data is concerned. If the Commission finds that such information is sufficient to rebut the presumption, then it must make a new determination on all factors that gives full weight to the evidence previously discounted.

2. Explain how post-petition volume and price data were factored into the Commission's final determination and provide analysis that gives such data some weight, rather than no weight, in its determination. If the Commission finds that either category of evidence is not discounted, then it must make a new determination that gives such undiscounted evidence full weight in its analysis of the relevant factor.

3. Explain how instances of underselling caused adverse trends in price or industry performance in the domestic industry.

4. Analyze how increased volumes of the subject imports caused the domestic industry to suffer depressed prices taking into account all contradictory evidence and render a new determination based on the analysis.

5. Provide a new analysis of the impact of subject imports on the domestic industry, explaining and analyzing (a) how fluctuating yields may leave the domestic industry vulnerable as a result of price depression of the subject imports, (b) how yield fluctuations were accounted for, and (c) why yields per acre and farm prices are the most relevant factors in determining the financial state of the domestic industry.

6. Provide detail as to which prices have been used by the Commission in its analysis and whether prices have been used that are not at the level of sales to domestic milling operations. Having regard to the substantial evidence requirements discussed above, if prices that are not at the level of sales to domestic milling operations have been used, the Commission must explain how such prices show sales in competition with sales of imports at the same level of trade, or how they have been adjusted to reflect the same trade level as imports. If price comparisons could not be made at the same level of trade, the Commission must explain what link exists between prices at the different levels that supports the conclusions of the Commission. If some prices chosen do not involve comparisons at the same level of trade and cannot be adjusted, the Commission is instructed to reject them and reconsider its analysis of price underselling. Start Printed Page 34088

7. Examine the economic conditions of the grain trading companies and elevators to explain how the effect of imports was passed upstream to the farmers.

8. Examine the exports of domestically-produced HRS wheat and explain how the Commission has found injury by reason of the subject imports, rather than by reason of competition in third-country markets.

9. Analyze and explain how average farm prices for HRS wheat are based on the outcome of downstream transactions, and subject imports are large enough to impact HRS wheat prices on the futures market of the MGE, specifically taking into account the proprietary information found at page 56 of the CWB's Brief.

The Commission is to provide the determination on remand within 90 days of the panel decision or not later than September 6, 2005.

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Dated: June 7, 2005.

Caratina L. Alston,

U.S. Secretary, NAFTA Secretariat.

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[FR Doc. E5-3015 Filed 6-10-05; 8:45 am]