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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 November 3, 2005, the binational panel issued its decision in the review of the final determination made by the International Trade Administration, respecting Gray Portland Cement and Clinker from Mexico Final Antidumping Duty Administrative Review, Secretariat File No. USA-MEX-98-1904-02. The binational panel affirmed in part and remanded in part to the International Trade Administration. 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 the 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 remands this case to the Department as follows:

1. Reconsider whether, the evidence in the record supports the conclusion that, Type V cement sold as Type V and Type II cement was not sold in the ordinary course of trade, and provide an explanation recognizing the implications of the economic interrelationship of issues developed in the Seventh Review Remand Determination, the presence or absence of facts on the record regarding promotional quality, and the resulting interaction of all of the factors examined in the reconsideration;

2. If, upon reconsideration, a determination is made which alters the selection of sales for comparison purposes from that made in the original and first remand determination, consider the comparison issues raised by the CDC in conformance with the positions taken by the majority opinions in the Seventh Review Panel; and

3. Reconsider the calculation of the DIFMER allowance on the basis that any positive DIFMER allowance could be considered adverse to CEMEX, that the Start Printed Page 69143calculation must be a “reasonably accurate estimate” of the actual rate, that the calculation must be made in a manner that reflects differences in physical characteristics, and that the result must, while providing a deterrent for non-compliance, not be punitive, and provide an adequate explanation of that calculation.

The Department's decision in the final results of the Sixth Administrative Review Remand Determination is, in all other respects, upheld.

The Department was directed to complete its redetermination with regard to remand issues within 45 days of the date of the opinion, or not later than December 19, 2005.

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Dated: November 3, 2005.

Caratina L. Alston,

United States Secretary, NAFTA Secretariat.

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[FR Doc. 05-22503 Filed 11-10-05; 8:45 am]