Chapter Nineteen: Review and Dispute Settlement in Antidumping and Countervailing Duty Matters
Annex 1904.15: Amendments to Domestic Laws
Schedule of Canada
1. Canada shall amend sections 56 and 58 of the Special Import Measures Act, as amended, to allow the United States with respect to goods of the United States or Mexico with respect to goods of Mexico or a United States or a Mexican manufacturer, producer, or exporter, without regard to payment of duties, to make a written request for a redetermination; and section 59 to require the Deputy Minister to make a ruling on a request for a redetermination within one year of a request to a designated officer or other customs officer.
2. Canada shall amend section 18.3(1) of the Federal Court Act, as amended, to render that section inapplicable to the United States and to Mexico; and shall provide in its statutes or regulations that persons (including producers of goods subject to an investigation) have standing to ask Canada to request a panel review where such persons would be entitled to commence domestic procedures for judicial review if the final determination were reviewable by the Federal Court pursuant to section 18.1(4).
3. Canada shall amend the Special Import Measures Act, as amended, and any other relevant provisions of law, to provide that the following actions of the Deputy Minister shall be deemed for the purposes of this Article to be final determinations subject to judicial review:
(a) a determination by the Deputy Minister pursuant to section 41;
(b) a redetermination by the Deputy Minister pursuant to section 59; and
(c) a review by the Deputy Minister of an undertaking pursuant to section 53(1).
4. Canada shall amend Part II of the Special Import Measures Act, as amended, to provide for binational panel review respecting goods of Mexico and the United States.
5. Canada shall amend Part II of the Special Import Measures Act, as amended, to provide for definitions related to this Chapter, as may be required.
6. Canada shall amend Part II of the Special Import Measures Act, as amended, to permit the governments of Mexico and the United States to request binational panel review of final determinations respecting goods of Mexico and the United States.
7. Canada shall amend Part II of the Special Import Measures Act, as amended, to provide for the establishment of binational panels requested to review final determinations in respect of goods of Mexico and the United States.
8. Canada shall amend Part II of the Special Import Measures Act, as amended, to provide that binational panel review of a final determination shall be conducted in accordance with this Chapter.
9. Canada shall amend Part II of the Special Import Measures Act, as amended, to provide that an extraordinary challenge proceeding shall be requested and conducted in accordance with Article 1904 and Annex 1904.13.
10. Canada shall amend Part II of the Special Import Measures Act, as amended, to provide for a code of conduct, immunity for anything done or omitted to be done during the course of panel proceedings, the signing of and compliance with disclosure undertakings respecting confidential information, and remuneration for members of panels and committees established pursuant to this Chapter.
11. Canada shall make such amendments as are necessary to establish a Canadian Secretariat for this Agreement and generally to facilitate the operation of this Chapter and the work of the binational panels, extraordinary challenge committees and special committees convened under this Chapter.
Schedule of Mexico
Mexico shall amend its antidumping and countervailing duty statutes and regulations, and other statutes and regulations to the extent that they apply to the operation of the antidumping and countervailing duty laws, to provide the following:
(a) elimination of the possibility of imposing duties within the fiveday period after the acceptance of a petition;
(b) substitution of the term Initial Resolution ("Resolución de Inicio") for the term Provisional Resolution ("Resolución Provisional") and the term Provisional Resolution ("Resolución Provisional ") for the term Resolution Reviewing the Provisional Resolution ("Resolución que revisa a la Resolución Provisional");
(c) full participation in the administrative process for interested parties, as well as the right to administrative appeal and judicial review of final determinations of investigations, reviews, product coverage or other final decisions affecting them;
(d) elimination of the possibility of imposing provisional duties before the issuance of a preliminary determination;
(e) the right to immediate access to review of final determinations by binational panels for interested parties, without the need to exhaust first the administrative appeal;
(f) explicit and adequate timetables for determinations of the competent investigating authority and for the submission of questionnaires, evidence and comments by interested parties, as well as an opportunity for them to present facts and arguments in support of their positions prior to any final determination, to the extent time permits, including an opportunity to be adequately informed in a timely manner of and to comment on all aspects of preliminary determinations of dumping or subsidization;
(g) written notice to interested parties of any of the actions or resolutions rendered by the competent investigating authority, including initiation of an administrative review as well as its conclusion;
(h) disclosure meetings with interested parties by the competent investigating authority conducting its investigations and reviews, within seven calendar days after the date of publication in the Federal Official Journal ("Diario Oficial de la Federación") of preliminary and final determinations, to explain the margins of dumping and the amount of subsidies calculations and to provide the interested parties with copies of sample calculations and, if used, computer programs;
(i) timely access by eligible counsel of interested parties during the course of the proceeding (including disclosure meetings) and on appeal, either before a national tribunal or a panel, to all information contained in the administrative record of the proceeding, including confidential information, excepting proprietary information of such a high degree of sensitivity that its release would lead to substantial and irreversible harm to the owner as well as government classified information, subject to an undertaking for confidentiality that strictly forbids use of the information for personal benefit and its disclosure to persons who are not authorized to receive such information; and for sanctions that are specific to violations of undertakings in proceedings before national tribunals or panels;
(j) timely access by interested parties during the course of the proceeding, to all non-confidential information contained in the administrative record and access to such information by interested parties or their representatives in any proceeding after 90 days following the issuance of the final determination;
(k) a mechanism requiring that any person submitting documents to the competent investigating authority shall simultaneously serve on interested persons, including foreign interests, any submissions after the complaint;
(l) preparation of summaries of ex parte meetings held between the competent investigating authority and any interested party and the inclusion in the administrative record of such summaries, which shall be made available to parties to the proceeding; if such summaries contain business proprietary information, the documents must be disclosed to a party's representative under an undertaking to ensure confidentiality;
(m) maintenance by the competent investigating authority of an administrative record as defined in this Chapter and a requirement that the final determination be based solely on the administrative record;
(n) informing interested parties in writing of all data and information the administering authority requires them to submit for the investigation, review, product coverage proceeding, or other antidumping or countervailing duty proceeding;
(o) the right to an annual individual review on request by the interested parties through which they can obtain their own dumping margin or countervailing duty rate, or can change the margin or rate they received in the investigation or a previous review, reserving to the competent investigating authority the ability to initiate a review, at any time, on its own motion and requiring that the competent investigating authority issue a notice of initiation within a reasonable period of time after the request;
(p) application of determinations issued as a result of judicial, administrative, or panel review, to the extent they are relevant to interested parties in addition to the plaintiff, so that all interested parties will benefit;
(q) issuance of binding decisions by the competent investigating authority if an interested party seeks clarification outside the context of an antidumping or countervailing duty investigation or review with respect to whether a particular product is covered by an antidumping or countervailing duty order;
(r) a detailed statement of reasons and the legal basis for final determinations in a manner sufficient to permit interested parties to make an informed decision as to whether to seek judicial or panel review, including an explanation of methodological or policy issues raised in the calculation of dumping or subsidization;
(s) written notice to interested parties and publication in the Federal Official Journal ("Diario Oficial de la Federación") of initiation of investigations setting forth the nature of the proceeding, the legal authority under which the proceeding is initiated, and a description of the product at issue;
(t) documentation in writing of all advisory bodies' decisions or recommendations, including the basis for the decisions, and release of such written decisions to parties to the proceeding; all decisions or recommendations of any advisory body shall be placed in the administrative record and made available to parties to the proceeding; and
(u) a standard of review to be applied by binational panels as set out in subparagraph (c) of the definition of "standard of review" in Annex 1911.
Schedule of the United States
1. The United States shall amend section 301 of the Customs Courts Act of 1980, as amended, and any other relevant provisions of law, to eliminate the authority to issue declaratory judgments in any civil action involving an antidumping or countervailing duty proceeding regarding a class or kind of Canadian or Mexican merchandise.
2. The United States shall amend section 405(a) of the United States-Canada Free-Trade Agreement Implementation Act of 1988, to provide that the interagency group established under section 242 of the Trade Expansion Act of 1962 shall prepare a list of individuals qualified to serve as members of binational panels, extraordinary challenge committees and special committees convened under this Chapter.
3. The United States shall amend section 405(b) of the United States-Canada Free-Trade Agreement Implementation Act of 1988, to provide that panelists selected to serve on panels or committees convened pursuant to this Chapter, and individuals designated to assist such appointed individuals, shall not be considered employees of the United States.
4. The United States shall amend section 405(c) of the United States-Canada Free-Trade Agreement Implementation Act of 1988, to provide that panelists selected to serve on panels or committees convened pursuant to this Chapter, and individuals designated to assist the individuals serving on such panels or committees, shall be immune from suit and legal process relating to acts performed by such individuals in their official capacity and within the scope of their functions as such panelists or committee members, except with respect to the violation of protective orders described in section 777f(d)(3) of the Tariff Act of 1930, as amended.
5. The United States shall amend section 405(d) of the United States-Canada Free-Trade Agreement Implementation Act of 1988, to establish a United States Secretariat to facilitate the operation of this Chapter and the work of the binational panels, extraordinary challenge committees and special committees convened under this Chapter.
6. The United States shall amend section 407 of the United States-Canada Free-Trade Agreement Implementation Act of 1988, to provide that an extraordinary challenge committee convened pursuant to Article 1904 and Annex 1904.13 shall have authority to obtain information in the event of an allegation that a member of a binational panel was guilty of gross misconduct, bias, or a serious conflict of interest, or otherwise materially violated the rules of conduct, and for the committee to summon the attendance of witnesses, order the taking of depositions and obtain the assistance of any district or territorial court of the United States in aid of the committee's investigation.
7. The United States shall amend section 408 of the United States-Canada Free-Trade Agreement Implementation Act of 1988, to provide that, in the case of a final determination of a competent investigating authority of Mexico, as well as Canada, the filing with the United States Secretary of a request for binational panel review by a person described in Article 1904(5) shall be deemed, on receipt of the request by the Secretary, to be a request for binational panel review within the meaning of Article 1904(4).
8. The United States shall amend section 516A of the Tariff Act of 1930, as amended, to provide that judicial review of antidumping or countervailing duty cases regarding Mexican, as well as Canadian, merchandise shall not be commenced in the Court of International Trade if binational panel review is requested.
9. The United States shall amend section 516A(a) of the Tariff Act of 1930, as amended, to provide that the time limits for commencing an action in the Court of International Trade with regard to antidumping or countervailing duty proceedings involving Mexican or Canadian merchandise shall not begin to run until the 31st day after the date of publication in the Federal Register of notice of the final determination or the antidumping duty order.
10. The United States shall amend section 516A(g) of the Tariff Act of 1930, as amended, to provide, in accordance with the terms of this Chapter, for binational panel review of antidumping and countervailing duty cases involving Mexican or Canadian merchandise. Such amendment shall provide that if binational panel review is requested such review will be exclusive.
11. The United States shall amend section 516A(g) of the Tariff Act of 1930, as amended, to provide that the competent investigating authority shall, within the period specified by any panel formed to review a final determination regarding Mexican or Canadian merchandise, take action not inconsistent with the decision of the panel or committee.
12. The United States shall amend section 777 of the Tariff Act of 1930, as amended, to provide for the disclosure to authorized persons under protective order of proprietary information in the administrative record, if binational panel review of a final determination regarding Mexican or Canadian merchandise is requested.
13. The United States shall amend section 777 of the Tariff Act of 1930, as amended, to provide for the imposition of sanctions on any person who the competent investigating authority finds to have violated a protective order issued by the competent investigating authority of the United States or disclosure undertakings entered into with an authorized agency of Mexico or with a competent investigating authority of Canada to protect proprietary material during binational panel review.
Annex 1905.6: Special Committee Procedures
The Parties shall establish rules of procedure by the date of entry into force of this Agreement in accordance with the following principles:
(a) the procedures shall assure a right to at least one hearing before the special committee as well as the opportunity to provide initial and rebuttal written submissions;
(b) the procedures shall assure that the special committee shall prepare an initial report typically within 60 days of the appointment of the last member, and shall afford the Parties 14 days to comment on that report prior to issuing a final report 30 days after presentation of the initial report;
(c) the special committee's hearings, deliberations, and initial report, and all written submissions to and communications with the special committee shall be confidential;
(d) unless the Parties to the dispute otherwise agree, the decision of the special committee shall be published 10 days after it is transmitted to the disputing Parties, along with any separate opinions of individual members and any written views that either Party may wish to be published; and
(e) unless the Parties to the dispute otherwise agree, meetings and hearings of the special committee shall take place at the office of the Section of the Secretariat of the Party complained against.
Annex 1911: CountrySpecific Definitions
For purposes of this Chapter:
antidumping statute means:
(a) in the case of Canada, the relevant provisions of the Special Import Measures Act, as amended, and any successor statutes;
(b) in the case of the United States, the relevant provisions of Title VII of the Tariff Act of 1930, as amended, and any successor statutes;
(c) in the case of Mexico, the relevant provisions of the Foreign Trade Act Implementing Article 131 of the Constitution of the United Mexican States ("Ley Reglamentaria del Artículo 131 de la Constitución Política de los Estados Unidos Mexicanos en Materia de Comercio Exterior"), as amended, and any successor statutes; and
(d) the provisions of any other statute that provides for judicial review of final determinations under subparagraph (a), (b) or (c), or indicates the standard of review to be applied to such determinations;
competent investigating authority means:
(a) in the case of Canada (i) the Canadian International Trade Tribunal, or its successor, or (ii) the Deputy Minister of National Revenue for Customs and Excise as defined in the Special Import Measures Act, as amended, or the Deputy Minister's successor;
(b) in the case of the United States
(i) the International Trade Administration of the United States Department of Commerce, or its successor, or
(ii) the United States International Trade Commission, or its successor; and
(c) in the case of Mexico, the designated authority within the Secretariat of Trade and Industrial Development ("Secretaría de Comercio y Fomento Industrial"), or its successor;
countervailing duty statute means:
(a) in the case of Canada, the relevant provisions of the Special Import Measures Act, as amended, and any successor statutes;
(b) in the case of the United States, section 303 and the relevant provisions of Title VII of the Tariff Act of 1930, as amended, and any successor statutes;
(c) in the case of Mexico, the relevant provisions of the Foreign Trade Act Implementing Article 131 of the Constitution of the United Mexican States ("Ley Reglamentaria del Artículo 131 de la Constitución Política de los Estados Unidos Mexicanos en Materia de Comercio Exterior"), as amended, and any successor statutes; and
(d) the provisions of any other statute that provides for judicial review of final determinations under subparagraph (a), (b) or (c), or indicates the standard of review to be applied to such determinations;
final determination means:
(a) in the case of Canada,
(i) an order or finding of the Canadian International Trade Tribunal under subsection 43(1) of the Special Import Measures Act,
(ii) an order by the Canadian International Trade Tribunal under subsection 76(4) of the Special Import Measures Act, as amended, continuing an order or finding made under subsection 43(1) of the Act with or without amendment,
(iii) a determination by the Deputy Minister of National Revenue for Customs and Excise pursuant to section 41 of the Special Import Measures Act, as amended,
(iv) a redetermination by the Deputy Minister pursuant to section 59 of the Special Import Measures Act, as amended,
(v) a decision by the Canadian International Trade Tribunal pursuant to subsection 76(3) of the Special Import Measures Act, as amended, not to initiate a review,
(vi) a reconsideration by the Canadian International Trade Tribunal pursuant to subsection 91(3) of the Special Import Measures Act, as amended, and
(vii) a review by the Deputy Minister of an undertaking pursuant to subsection 53(1) of the Special Import Measures Act, as amended;
(b) in the case of the United States,
(i) a final affirmative determination by the International Trade Administration of the United States Department of Commerce or by the United States International Trade Commission under section 705 or 735 of the Tariff Act of 1930, as amended, including any negative part of such a determination,
(ii) a final negative determination by the International Trade Administration of the United States Department of Commerce or by the United States International Trade Commission under section 705 or 735 of the Tariff Act of 1930, as amended, including any affirmative part of such a determination,
(iii) a final determination, other than a determination in (iv), under section 751 of the Tariff Act of 1930, as amended,
(iv) a determination by the United States International Trade Commission under section 751(b) of the Tariff Act of 1930, as amended, not to review a determination based on changed circumstances, and
(v) a final determination by the International Trade Administration of the United States Department of Commerce as to whether a particular type of merchandise is within the class or kind of merchandise described in an existing finding of dumping or antidumping or countervailing duty order; and
(c) in the case of the Mexico,
(i) a final resolution regarding antidumping or countervailing duties investigations by the Secretar a de Comercio y Fomento Industrial ("Secretariat of Trade and Industrial Development"), pursuant to Article 13 of the Ley Reglamentaria del Artículo 131 de la Constitución Política de los Estados Unidos Mexicanos en Materia de Comercio Exterior ("Foreign Trade Act Implementing Article 131 of the Constitution of the United Mexican States"), as amended,
(ii) a final resolution regarding an annual administrative review of antidumping or countervailing duties by the Secretariat of Trade and Industrial Development ("Secretaría de Comercio y Fomento Industrial"), as described in paragraph (o) of its Schedule to Annex 1904.15, and
(iii) a final resolution by the Secretariat of Trade and Industrial Development ("Secretaría de Comercio y Fomento Industrial"), as to whether a particular type of merchandise is within the class or kind of merchandise described in an existing antidumping or countervailing duty resolution; and
standard of review means the following standards, as may be amended from time to time by the relevant Party:
(a) in the case of Canada, the grounds set out in subsection 18.1(4) of the Federal Court Act, as amended, with respect to all final determinations;
(b) in the case of the United States,
(i) the standard set out in section 516A(b)(l)(B) of the Tariff Act of 1930, as amended, with the exception of a determination referred to in (ii), and
(ii) the standard set out in section 516A(b)(l)(A) of the Tariff Act of 1930, as amended, with respect to a determination by the United States International Trade Commission not to initiate a review pursuant to section 751(b) of the Tariff Act of 1930, as amended; and
(c) in the case of the Mexico, the standard set out in Article 238 of the Federal Fiscal Code ("Código Fiscal de la Federación"), or any successor statutes, based solely on the administrative record.
Continue on to Chapter 20: Institutional Arrangements and Dispute Settlement Procedures
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