Title:Review and Dispute Settlement in Antidumping.....
Title2: and Countervailing Duty Matters -- Chap 19
Author: White House
Document-Date: 29 Sept 1993
Content-Type: text/plain; CHARSET=US-ASCII
Content-Length:95452                                    Chapter Nineteen 
 
                      Review and Dispute Settlement in Antidumping 
                            and Countervailing Duty Matters 
 
 
            Article 1901:  General Provisions 
 
            1.   Article 1904 applies only with respect to goods that the 
            competent investigating authority of the importing Party, 
            applying the importing Party's antidumping or countervailing 
            duty law to the facts of a specific case, determines are goods 
            of another Party. 
 
            2.   For purposes of Articles 1903 and 1904, panels shall be 
            established in accordance with the provisions of Annex 1901.2. 
 
            3.   Except for Article 2203 (Entry into Force), no provision 
            of any other Chapter of this Agreement shall be construed as 
            imposing obligations on a Party with respect to the Party's 
            antidumping law or countervailing duty law. 
 
 
            Article 1902:  Retention of Domestic Antidumping Law and 
                           Countervailing Duty Law 
 
            1.   Each Party reserves the right to apply its antidumping law 
            and countervailing duty law to goods imported from the 
            territory of any other Party.  Antidumping law and 
            countervailing duty law include, as appropriate for each Party, 
            relevant statutes, legislative history, regulations, 
            administrative practice and judicial precedents. 
 
            2.   Each Party reserves the right to change or modify its 
            antidumping law or countervailing duty law, provided that in 
            the case of an amendment to a Party's antidumping or 
            countervailing duty statute: 
 
                 (a)  such amendment shall apply to goods from another 
                      Party only if the amending statute specifies that it 
                      applies to goods from that Party or from the Parties 
                      to this Agreement; 
 
                 (b)  the amending Party notifies in writing the Parties to 
                      which the amendment applies of the amending statute 
                      as far in advance as possible of the date of 
                      enactment of such statute; 
 
                 (c)  following notification, the amending Party, on 
                      request of any Party to which the amendment applies, 
 
 
 
                                          19-1  
 
 
 
 
 
 
  
 
 
 
 
 
                      consults with that Party prior to the enactment of 
                      the amending statute; and 
 
                 (d)  such amendment, as applicable to that other Party, is 
                      not inconsistent with 
 
                      (i)  the General Agreement on Tariffs and Trade 
                           (GATT), the Agreement on Implementation of 
                           Article VI of the General Agreement on Tariffs 
                           and Trade (the Antidumping Code) or the 
                           Agreement on the Interpretation and Application 
                           of Articles VI, XVI and XXIII of the General 
                           Agreement on Tariffs and Trade (the Subsidies 
                           Code), or any successor agreement to which all 
                           the original signatories to this Agreement are 
                           party, or 
 
                      (ii) the object and purpose of this Agreement and 
                           this Chapter, which is to establish fair and 
                           predictable conditions for the progressive 
                           liberalization of trade between the Parties to 
                           this Agreement while maintaining effective and 
                           fair disciplines on unfair trade practices, such 
                           object and purpose to be ascertained from the 
                           provisions of this Agreement, its preamble and 
                           objectives, and the practices of the Parties. 
 
 
            Article 1903:  Review of Statutory Amendments 
 
            1.   A Party to which an amendment of another Party's 
            antidumping or countervailing duty statute applies may request 
            in writing that such amendment be referred to a binational 
            panel for a declaratory opinion as to whether: 
 
                 (a)  the amendment does not conform to the provisions of 
                      Article 1902(2)(d)(i) or (ii); or 
 
                 (b)  such amendment has the function and effect of 
                      overturning a prior decision of a panel made pursuant 
                      to Article 1904 and does not conform to the 
                      provisions of Article 1902(2)(d)(i) or (ii). 
 
            Such declaratory opinion shall have force or effect only as 
            provided in this Article. 
 
            2.   The panel shall conduct its review in accordance with the 
            procedures of Annex 1903.2. 
 
 
 
 
 
                                          19-2  
 
 
 
 
 
 
  
 
 
 
 
 
            3.   In the event that the panel recommends modifications to 
            the amending statute to remedy a non-conformity that it has 
            identified in its opinion: 
 
                 (a)  the two Parties shall immediately begin consultations 
                      and shall seek to achieve a mutually satisfactory 
                      solution to the matter within 90 days of the issuance 
                      of the panel's final declaratory opinion.  Such 
                      solution may include seeking corrective legislation 
                      with respect to the statute of the amending Party;  
 
                 (b)  if corrective legislation is not enacted within nine 
                      months from the end of the 90-day consultation period 
                      referred to in subparagraph (a) and no other mutually 
                      satisfactory solution has been reached, the Party 
                      that requested the panel may 
 
                      (i)  take comparable legislative or equivalent 
                           executive action, or 
 
                      (ii) terminate this Agreement with regard to the 
                           amending Party on 60-day written notice to that 
                           Party. 
 
 
            Article 1904:  Review of Final Antidumping and Countervailing 
                           Duty Determinations 
 
            1.   As provided in this Article, each Party shall replace 
            judicial review of final antidumping and countervailing duty 
            determinations with binational panel review. 
 
            2.   An involved Party may request that a panel review, based 
            on the administrative record, a final antidumping or 
            countervailing duty determination of a competent investigating 
            authority of an importing Party to determine whether such 
            determination was in accordance with the antidumping or 
            countervailing duty law of the importing Party.  For this 
            purpose, the antidumping or countervailing duty law consists of 
            the relevant statutes, legislative history, regulations, 
            administrative practice and judicial precedents to the extent 
            that a court of the importing Party would rely on such 
            materials in reviewing a final determination of the competent 
            investigating authority.  Solely for purposes of the panel 
            review provided for in this Article, the antidumping and 
            countervailing duty statutes of the Parties, as those statutes 
            may be amended from time to time, are incorporated into and 
            made a part of this Agreement. 
 
            3.   The panel shall apply the standard of review set out in 
            Annex 1911 and the general legal principles that a court of the 
 
 
                                          19-3  
 
 
 
 
 
 
  
 
 
 
 
 
            importing Party otherwise would apply to a review of a 
            determination of the competent investigating authority. 
 
            4.   A request for a panel shall be made in writing to the 
            other involved Party within 30 days following the date of 
            publication of the final determination in question in the 
            official journal of the importing Party.  In the case of final 
            determinations that are not published in the official journal 
            of the importing Party, the importing Party shall immediately 
            notify the other involved Party of such final determination 
            where it involves goods from the other involved Party, and the 
            other involved Party may request a panel within 30 days of 
            receipt of such notice.  Where the competent investigating 
            authority of the importing Party has imposed provisional 
            measures in an investigation, the other involved Party may 
            provide notice of its intention to request a panel under this 
            Article, and the Parties shall begin to establish a panel at 
            that time.  Failure to request a panel within the time 
            specified in this paragraph shall preclude review by a panel. 
 
            5.   An involved Party on its own initiative may request review 
            of a final determination by a panel and shall, on request of a 
            person who would otherwise be entitled under the law of the 
            importing Party to commence domestic procedures for judicial 
            review of that final determination, request such review. 
 
            6.   The panel shall conduct its review in accordance with the 
            procedures established by the Parties pursuant to paragraph 14.  
            Where both involved Parties request a panel to review a final 
            determination, a single panel shall review that determination. 
 
            7.   The competent investigating authority that issued the 
            final determination in question shall have the right to appear 
            and be represented by counsel before the panel.  Each Party 
            shall provide that other persons who, pursuant to the law of 
            the importing Party, otherwise would have had the right to 
            appear and be represented in a domestic judicial review 
            proceeding concerning the determination of the competent 
            investigating authority, shall have the right to appear and be 
            represented by counsel before the panel. 
 
            8.   The panel may uphold a final determination, or remand it 
            for action not inconsistent with the panel's decision.  Where 
            the panel remands a final determination, the panel shall 
            establish as brief a time as is reasonable for compliance with 
            the remand, taking into account the complexity of the factual 
            and legal issues involved and the nature of the panel's 
            decision.  In no event shall the time permitted for compliance 
            with a remand exceed an amount of time equal to the maximum 
            amount of time (counted from the date of the filing of a 
            petition, complaint or application) permitted by statute for 
 
 
                                          19-4  
 
 
 
 
 
 
  
 
 
 
 
 
            the competent investigating authority in question to make a 
            final determination in an investigation.  If review of the 
            action taken by the competent investigating authority on remand 
            is needed, such review shall be before the same panel, which 
            shall normally issue a final decision within 90 days of the 
            date on which such remand action is submitted to it. 
 
            9.   The decision of a panel under this Article shall be 
            binding on the involved Parties with respect to the particular 
            matter between the Parties that is before the panel. 
 
            10.  This Agreement shall not affect:  
 
                 (a)  the judicial review procedures of any Party, or 
 
                 (b)  cases appealed under those procedures,  
 
            with respect to determinations other than final determinations. 
 
            11.  A final determination shall not be reviewed under any 
            judicial review procedures of the importing Party if an 
            involved Party requests a panel with respect to that 
            determination within the time limits set out in this Article.  
            No Party may provide in its domestic legislation for an appeal 
            from a panel decision to its domestic courts. 
 
            12.  This Article shall not apply where: 
 
                 (a)  neither involved Party seeks panel review of a final 
                      determination;  
 
                 (b)  a revised final determination is issued as a direct 
                      result of judicial review of the original final 
                      determination by a court of the importing Party in 
                      cases where neither involved Party sought panel 
                      review of that original final determination; or 
 
                 (c)  a final determination is issued as a direct result of 
                      judicial review that was commenced in a court of the 
                      importing Party before the date of entry into force 
                      of this Agreement. 
 
            13.  Where, within a reasonable time after the panel decision 
            is issued, an involved Party alleges that: 
 
                 (a)  (i)  a member of the panel was guilty of gross 
                           misconduct, bias, or a serious conflict of 
                           interest, or otherwise materially violated the 
                           rules of conduct, 
 
 
 
 
                                          19-5  
 
 
 
 
 
 
  
 
 
 
 
 
                      (ii) the panel seriously departed from a fundamental 
                           rule of procedure, or 
 
                      (iii)     the panel manifestly exceeded its powers, 
                                authority or jurisdiction set out in this 
                                Article, for example by failing to apply 
                                the appropriate standard of review, and 
 
                 (b)  any of the actions set out in subparagraph (a) has 
                      materially affected the panel's decision and 
                      threatens the integrity of the binational panel 
                      review process, 
 
            that Party may avail itself of the extraordinary challenge 
            procedure set out in Annex 1904.13. 
 
            14.  To implement the provisions of this Article, the Parties 
            shall adopt rules of procedure by January 1, 1994.  Such rules 
            shall be based, where appropriate, on judicial rules of 
            appellate procedure, and shall include rules concerning:  the 
            content and service of requests for panels; a requirement that 
            the competent investigating authority transmit to the panel the 
            administrative record of the proceeding; the protection of 
            business proprietary, government classified, and other 
            privileged information (including sanctions against persons 
            participating before panels for improper release of such 
            information); participation by private persons; limitations on 
            panel review to errors alleged by the Parties or private 
            persons; filing and service; computation and extensions of 
            time; the form and content of briefs and other papers; pre- and 
            post-hearing conferences; motions; oral argument; requests for 
            rehearing; and voluntary terminations of panel reviews.  The 
            rules shall be designed to result in final decisions within 
            315 days of the date on which a request for a panel is made, 
            and shall allow: 
 
                 (a)  30 days for the filing of the complaint; 
 
                 (b)  30 days for designation or certification of the 
                      administrative record and its filing with the panel; 
 
                 (c)  60 days for the complainant to file its brief; 
 
                 (d)  60 days for the respondent to file its brief; 
 
                 (e)  15 days for the filing of reply briefs; 
 
                 (f)  15 to 30 days for the panel to convene and hear oral 
                      argument; and 
 
                 (g)  90 days for the panel to issue its written decision. 
 
 
                                          19-6  
 
 
 
 
 
 
  
 
 
 
 
 
            15.  In order to achieve the objectives of this Article, the 
            Parties shall amend their antidumping and countervailing duty 
            statutes and regulations with respect to antidumping or 
            countervailing duty proceedings involving goods of the other 
            Parties, and other statutes and regulations to the extent that 
            they apply to the operation of the antidumping and 
            countervailing duty laws.  In particular, without limiting the 
            generality of the foregoing, each Party shall:  
 
                 (a)  amend its statutes or regulations to ensure that 
                      existing procedures concerning the refund, with 
                      interest, of antidumping or countervailing duties 
                      operate to give effect to a final panel decision that 
                      a refund is due; 
 
                 (b)  amend its statutes or regulations to ensure that its 
                      courts shall give full force and effect, with respect 
                      to any person within its jurisdiction, to all 
                      sanctions imposed pursuant to the laws of the other 
                      Parties to enforce provisions of any protective order 
                      or undertaking that such other Party has promulgated 
                      or accepted in order to permit access for purposes of 
                      panel review or of the extraordinary challenge 
                      procedure to confidential, personal, business 
                      proprietary or other privileged information; 
 
                 (c)  amend its statutes or regulations to ensure that 
 
                      (i)  domestic procedures for judicial review of a 
                           final determination may not be commenced until 
                           the time for requesting a panel under paragraph 
                           4 has expired, and 
 
                      (ii) as a prerequisite to commencing domestic 
                           judicial review procedures to review a final 
                           determination, a Party or other person intending 
                           to commence such procedures shall provide notice 
                           of such intent to the Parties concerned and to 
                           other persons entitled to commence such review 
                           procedures of the same final determination no 
                           later than 10 days prior to the latest date on 
                           which a panel may be requested; and 
 
                 (d)  make the further amendments set out in its Schedule 
                      to Annex 1904.15. 
 
 
            Article 1905:  Safeguarding the Panel Review System 
 
            1.   Where a Party alleges that the application of another 
            Party's domestic law: 
 
 
                                          19-7  
 
 
 
 
 
 
  
 
 
 
 
 
                 (a)  has prevented the establishment of a panel requested 
                      by the complaining Party; 
 
                 (b)  has prevented a panel requested by the complaining 
                      Party from rendering a final decision; 
 
                 (c)  has prevented the implementation of the decision of a 
                      panel requested by the complaining Party or denied it 
                      binding force and effect with respect to the 
                      particular matter that was before the panel; or  
 
                 (d)  has resulted in a failure to provide opportunity for 
                      review of a final determination by a panel or court 
                      of competent jurisdiction that is independent of the 
                      competent investigating authorities, that examines 
                      the basis for the competent investigating authority's 
                      determination and whether the competent investigating 
                      authority properly applied domestic antidumping and 
                      countervailing duty law in reaching the challenged 
                      determination, and that employs the relevant standard 
                      of review identified in Article 1911, 
 
            the Party may request in writing consultations with the other 
            Party regarding the allegations.   The consultations shall 
            begin within 15 days of the date of the request. 
 
            2.   If the matter has not been resolved within 45 days of the 
            request for consultations, or such other period as the 
            consulting Parties may agree, the complaining Party may request 
            the establishment of a special committee.  
 
            3.   Unless otherwise agreed by the disputing Parties, the 
            special committee shall be established within 15 days of a 
            request and perform its functions in a manner consistent with 
            this Chapter. 
 
            4.   The roster for special committees shall be that 
            established under Annex 1904.13. 
 
            5.   The special committee shall comprise three members 
            selected in accordance with the procedures set out in 
            Annex 1904.13. 
 
            6.   The Parties shall establish rules of procedure in 
            accordance with the principles set out in Annex 1905.6. 
 
            7.   Where the special committee makes an affirmative finding 
            with respect to one of the grounds specified in paragraph 1, 
            the complaining Party and the Party complained against shall 
            begin consultations within 10 days thereafter and shall seek to 
 
 
 
                                          19-8  
 
 
 
 
 
 
  
 
 
 
 
 
            achieve a mutually satisfactory solution within 60 days of the 
            issuance of the committee's report. 
 
            8.   If, within the 60-day period, the Parties are unable to 
            reach a mutually satisfactory solution to the matter, or the 
            Party complained against has not demonstrated to the 
            satisfaction of the special committee that it has corrected the 
            problem or problems with respect to which the committee has 
            made an affirmative finding, the complaining Party may suspend: 
 
                 (a)  the operation of Article 1904 with respect to the 
                      Party complained against; or 
 
                 (b)  the application to the Party complained against of 
                      such benefits under this Agreement as may be 
                      appropriate under the circumstances. 
 
            If the complaining Party decides to take action under this 
            paragraph, it shall do so within 30 days after the end of the 
            60-day consultation period. 
 
            9.   In the event that a complaining Party suspends the 
            operation of Article 1904 with respect to the Party complained 
            against, the latter Party may reciprocally suspend the 
            operation of Article 1904 within 30 days after the suspension 
            of the operation of Article 1904 by the complaining Party.  If 
            either Party decides to suspend the operation of Article 1904, 
            it shall provide written notice of such suspension to the other 
            Party. 
 
            10.  At the request of the Party complained against, the 
            special committee shall reconvene to determine whether: 
 
                 (a)  the suspension of benefits by the complaining Party 
                      pursuant to paragraph 8(b) is manifestly excessive; 
                      or 
 
                 (b)  the Party complained against has corrected the 
                      problem or problems with respect to which the 
                      committee has made an affirmative finding. 
 
            The special committee shall, within 45 days of the request, 
            present a report to both Parties containing its determination.  
            Where the special committee determines that the Party 
            complained against has corrected the problem or problems, any 
            suspension effected by the complaining Party or the Party 
            complained against, or both, pursuant to paragraph 8 or 9 shall 
            be terminated. 
 
            11.  If the special committee makes an affirmative finding with 
            respect to one of the grounds specified in paragraph 1, then 
 
 
                                          19-9  
 
 
 
 
 
 
  
 
 
 
 
 
            effective as of the day following the date of issuance of the 
            special committee's report: 
 
                 (a)  binational panel or extraordinary challenge committee 
                      review under Article 1904 shall be stayed 
 
                      (i)  in the case of review of any final determination 
                           of the complaining Party requested by the Party 
                           complained against, if such review was requested 
                           after the date on which consultations were 
                           requested pursuant to paragraph 1, and in no 
                           case more than 150 days prior to an affirmative 
                           finding by the special committee, or 
 
                      (ii) in the case of review of any final determination 
                           of the Party complained against requested by the 
                           complaining Party, at the request of the 
                           complaining Party; and  
 
                 (b)  the time set out in Article 1904(4) or Annex 1904.13 
                      for requesting panel or committee review shall not 
                      run unless and until resumed in accordance with 
                      paragraph 12. 
 
            12.  If either Party suspends the operation of Article 1904 
            pursuant to paragraph 8(a), the panel or committee review 
            stayed under paragraph 11(a) shall be terminated and the 
            challenge to the final determination shall be irrevocably 
            referred to the appropriate domestic court for decision, as 
            provided below: 
 
                 (a)  in the case of review of any final determination of 
                      the complaining Party requested by the Party 
                      complained against, at the request of either Party, 
                      or of a party to the panel review under Article 1904; 
                      or 
 
                 (b)  in the case of review of any final determination of 
                      the Party complained against requested by the 
                      complaining Party, at the request of the complaining 
                      Party, or of a person of the complaining Party that 
                      is a party to the panel review under Article 1904. 
 
            If either Party suspends the operation of Article 1904 pursuant 
            to paragraph 8(a), any running of time suspended under 
            paragraph 11(b) shall resume. 
 
            If the suspension of the operation of Article 1904 does not 
            become effective, panel or committee review stayed under 
            paragraph 11(a), and any running of time suspended under 
            paragraph 11(b), shall resume. 
 
 
                                         19-10  
 
 
 
 
 
 
  
 
 
 
 
 
            13.  If the complaining Party suspends the application to the 
            Party complained against of such benefits under the Agreement 
            as may be appropriate under the circumstances pursuant to 
            paragraph 8(b), panel or committee review stayed under 
            paragraph 11(a), and any running of time suspended under 
            paragraph 11(b), shall resume. 
 
            14.  Each Party shall provide in its domestic legislation that, 
            in the event of an affirmative finding by the special 
            committee, the time for requesting judicial review of a final 
            antidumping or countervailing duty determination shall not run 
            unless and until the Parties concerned have negotiated a 
            mutually satisfactory solution under paragraph 7, have 
            suspended the operation of Article 1904 or the application of 
            other benefits under paragraph 8. 
 
 
            Article 1906:  Prospective Application 
 
                 This Chapter shall apply only prospectively to: 
 
                 (a)  final determinations of a competent investigating 
                      authority made after the date of entry into force of 
                      this Agreement; and 
 
                 (b)  with respect to declaratory opinions under 
                      Article 1903, amendments to antidumping or 
                      countervailing duty statutes enacted after the date 
                      of entry into force of this Agreement. 
 
 
            Article 1907:  Consultations 
 
            1.   The Parties shall consult annually, or on the request of 
            any Party, to consider any problems that may arise with respect 
            to the implementation or operation of this Chapter and 
            recommend solutions, where appropriate.  The Parties shall each 
            designate one or more officials, including officials of the 
            competent investigating authorities, to be responsible for 
            ensuring that consultations occur, when required, so that the 
            provisions of this Chapter are carried out expeditiously. 
 
            2.   The Parties further agree to consult on: 
 
                 (a)  the potential to develop more effective rules and 
                      disciplines concerning the use of government 
                      subsidies; and 
 
                 (b)  the potential for reliance on a substitute system of 
                      rules for dealing with unfair transborder pricing 
                      practices and government subsidization. 
 
 
                                         19-11  
 
 
 
 
 
 
  
 
 
 
 
 
            3.   The competent investigating authorities of the Parties 
            shall consult annually, or on the request of any Party, and may 
            submit reports to the Commission, where appropriate.  In the 
            context of these consultations, the Parties agree that it is 
            desirable in the administration of antidumping and 
            countervailing duty laws to: 
 
                 (a)  publish notice of initiation of investigations in the 
                      importing Party's official journal, setting forth the 
                      nature of the proceeding, the legal authority under 
                      which the proceeding is initiated, and a description 
                      of the goods at issue; 
 
                 (b)  provide notice of the times for submissions of 
                      information and for decisions that the competent 
                      investigating authorities are expressly required by 
                      statute or regulations to make; 
 
                 (c)  provide explicit written notice and instructions as 
                      to the information required from interested parties 
                      and reasonable time to respond to requests for 
                      information;  
 
                 (d)  accord reasonable access to information, noting that 
                      in this context 
 
                      (i)  "reasonable access" means access during the 
                           course of the investigation, to the extent 
                           practicable, so as to permit an opportunity to 
                           present facts and arguments as set out in 
                           paragraph (e); when it is not practicable to 
                           provide access to information during the 
                           investigation in such time as to permit an 
                           opportunity to present facts and arguments, 
                           reasonable access shall mean in time to permit 
                           the adversely affected party to make an informed 
                           decision as to whether to seek judicial or panel 
                           review, and 
 
                      (ii) "access to information" means access to 
                           representatives determined by the competent 
                           investigating authority to be qualified to have 
                           access to information received by that competent 
                           investigating authority, including access to 
                           confidential (business proprietary) information, 
                           but does not include information of such high 
                           degree of sensitivity that its release would 
                           lead to substantial and irreversible harm to the 
                           owner or which is required to be kept 
                           confidential in accordance with domestic 
                           legislation of a Party; any privileges arising 
 
 
                                         19-12  
 
 
 
 
 
 
  
 
 
 
 
 
                           under the domestic law of the importing Party 
                           relating to communications between the competent 
                           investigating authorities and a lawyer in the 
                           employ of, or providing advice to, those 
                           authorities may be maintained; 
 
                 (e)  provide an opportunity for interested parties to 
                      present facts and arguments, to the extent time 
                      permits, including an opportunity to comment on the 
                      preliminary determination of dumping or of 
                      subsidization; 
 
                 (f)  protect confidential (business proprietary) 
                      information received by the competent investigating 
                      authority to ensure that there is no disclosure 
                      except to representatives determined by the competent 
                      investigating authority to be qualified; 
 
                 (g)  prepare administrative records, including 
                      recommendations of official advisory bodies that may 
                      be required to be kept, and any record of ex parte 
                      meetings that may be required to be kept; 
 
                 (h)  provide disclosure of relevant information, including 
                      an explanation of the calculation or the methodology 
                      used to determine the margin of dumping or the amount 
                      of the subsidy, on which any preliminary or final 
                      determination of dumping or of subsidization is 
                      based, within a reasonable time after a request by 
                      interested parties; 
 
                 (i)  provide a statement of reasons concerning the final 
                      determination of dumping or subsidization; and 
 
                 (j)  provide a statement of reasons for final 
                      determinations concerning material injury to a 
                      domestic industry, threat of material injury to a 
                      domestic industry or material retardation of the 
                      establishment of such an industry. 
 
            Inclusion of an item in subparagraphs (a) through (j) is not 
            intended to serve as guidance to a binational panel reviewing a 
            final antidumping or countervailing duty determination pursuant 
            to Article 1904 in determining whether such determination was 
            in accordance with the antidumping or countervailing duty law 
            of the importing Party. 
 
 
 
 
 
 
 
                                         19-13  
 
 
 
 
 
 
  
 
 
 
 
 
            Article 1908:  Special Secretariat Provisions 
 
            1.   The Parties shall establish a section within the 
            Secretariat established pursuant to Article 2002 to facilitate 
            the operation of this Chapter, including the work of panels or 
            committees that may be convened pursuant to this Chapter. 
 
            2.   The Secretaries of the Secretariat shall act jointly to 
            provide administrative assistance to all panels or committees 
            established pursuant to this Chapter.  The Secretary for the 
            Section of the Party in which a panel or committee proceeding 
            is held shall prepare a record thereof and shall preserve an 
            authentic copy of the same in that Party's Section office.  
            Such Secretary shall, on request, provide to the Secretary for 
            the Section of any other Party a copy of such portion of the 
            record as is requested, except that only public portions of the 
            record shall be provided to the Secretary for the Section of 
            any Party that is not an involved Party. 
 
            3.   Each Secretary shall receive and file all requests, briefs 
            and other papers properly presented to a panel or committee in 
            any proceeding before it that is instituted pursuant to this 
            Chapter and shall number in numerical order all requests for a 
            panel or committee.  The number given to a request shall be the 
            file number for briefs and other papers relating to such 
            request. 
 
            4.   The Secretary for the Section of the Party in which a 
            panel or committee proceeding is held shall forward to the 
            Secretary for the Section of the other involved Party copies of 
            all official letters, documents or other papers received or 
            filed with that Party's Section office pertaining to any 
            proceeding before a panel or committee, except for the 
            administrative record, which shall be handled in accordance 
            with paragraph 1.  The Secretary for the Section of an involved 
            Party shall provide on request to the Secretary for the Section 
            of a Party that is not an involved Party in the proceeding a 
            copy of such public documents as are requested. 
 
 
            Article 1909:  Code of Conduct 
 
                 The Parties shall, by the date of entry into force of this 
            Agreement, exchange letters establishing a code of conduct for 
            panelists and members of committees established pursuant to 
            Articles 1903, 1904 and 1905. 
 
 
 
 
 
 
 
                                         19-14  
 
 
 
 
 
 
  
 
 
 
 
 
            Article 1910:  Miscellaneous 
 
                 On request of another Party, the competent investigating 
            authority of a Party shall provide to the other Party copies of 
            all public information submitted to it for purposes of an 
            antidumping or countervailing duty investigation with respect 
            to goods of that other Party. 
 
 
            Article 1911:  Definitions 
 
            For purposes of this Chapter: 
 
            administrative record means, unless otherwise agreed by the 
            Parties and the other persons appearing before a panel: 
 
                 (a)  all documentary or other information presented to or 
                      obtained by the competent investigating authority in 
                      the course of the administrative proceeding, 
                      including any governmental memoranda pertaining to 
                      the case, and including any record of ex parte 
                      meetings as may be required to be kept;  
 
                 (b)  a copy of the final determination of the competent 
                      investigating authority, including reasons for the 
                      determination;  
 
                 (c)  all transcripts or records of conferences or hearings 
                      before the competent investigating authority; and 
 
                 (d)  all notices published in the official journal of the 
                      importing Party in connection with the administrative 
                      proceeding; 
 
            antidumping statute as referred to in Articles 1902 and 1903 
            means "antidumping statute" of a Party as defined in Annex 
            1911; 
 
            competent investigating authority means "competent 
            investigating authority" of a Party as defined in Annex 1911; 
 
            countervailing duty statute as referred to in Articles 1902 and 
            1903 means "countervailing duty statute" of a Party as defined 
            in Annex 1911; 
 
            domestic law for purposes of Article 1905(1) means a Party's 
            constitution, statutes, regulations and judicial decisions to 
            the extent they are relevant to the antidumping and 
            countervailing duty laws; 
 
 
 
 
                                         19-15  
 
 
 
 
 
 
  
 
 
 
 
 
            final determination means "final determination" of a Party as 
            defined in Annex 1911; 
 
            foreign interests includes exporters or producers of the Party 
            whose goods are the subject of the proceeding or, in the case 
            of a countervailing duty proceeding, the government of the 
            Party whose goods are the subject of the proceeding; 
 
            general legal principles includes principles such as standing, 
            due process, rules of statutory construction, mootness and 
            exhaustion of administrative remedies; 
 
            goods of a Party means domestic products as these are 
            understood in the General Agreement on Tariffs and Trade; 
 
            importing Party means the Party that issued the final 
            determination; 
 
            interested parties includes foreign interests; 
 
            involved Party means: 
 
                 (a)  the importing Party; or  
 
                 (b)  a Party whose goods are the subject of the final 
                      determination; 
 
            remand means a referral back for a determination not 
            inconsistent with the panel or committee decision; and 
 
            standard of review means the "standard of review" for each 
            Party as defined in Annex 1911. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                         19-16  
 
 
 
 
 
 
  
 
 
 
 
 
                                                               Annex 1901.2                                             
                  ____________ 
 
 
                                      Annex 1901.2 
 
                           Establishment of Binational Panels 
 
 
            1.   On the date of entry into force of this Agreement, the 
            Parties shall establish and thereafter maintain a roster of 
            individuals to serve as panelists in disputes under this 
            Chapter.  The roster shall include judges or former judges to 
            the fullest extent practicable.  The Parties shall consult in 
            developing the roster, which shall include at least 75 
            candidates.  Each Party shall select at least 25 candidates, 
            and all candidates shall be citizens of Canada, Mexico or the 
            United States.  Candidates shall be of good character, high 
            standing and repute, and shall be chosen strictly on the basis 
            of objectivity, reliability, sound judgment and general 
            familiarity with international trade law.  Candidates shall not 
            be affiliated with a Party, and in no event shall a candidate 
            take instructions from a Party.  The Parties shall maintain the 
            roster, and may amend it, when necessary, after consultations. 
 
            2.   A majority of the panelists on each panel shall be lawyers 
            in good standing.  Within 30 days of a request for a panel, 
            each involved Party shall appoint two panelists, in 
            consultation with the other involved Party.  The involved 
            Parties normally shall appoint panelists from the roster.  If a 
            panelist is not selected from the roster, the panelist shall be 
            chosen in accordance with and be subject to the criteria of 
            paragraph 1.  Each involved Party shall have the right to 
            exercise four peremptory challenges, to be exercised 
            simultaneously and in confidence, disqualifying from 
            appointment to the panel up to four candidates proposed by the 
            other involved Party.  Peremptory challenges and the selection 
            of alternative panelists shall occur within 45 days of the 
            request for the panel.  If an involved Party fails to appoint 
            its members to a panel within 30 days or if a panelist is 
            struck and no alternative panelist is selected within 45 days, 
            such panelist shall be selected by lot on the 31st or 46th day, 
            as the case may be, from that Party's candidates on the roster. 
 
            3.   Within 55 days of the request for a panel, the involved 
            Parties shall agree on the selection of a fifth panelist.  If 
            the involved Parties are unable to agree, they shall decide by 
            lot which of them shall select, by the 61st day, the fifth 
            panelist from the roster, excluding candidates eliminated by 
            peremptory challenges. 
 
 
 
 
                                         19-17  
 
 
 
 
 
 
  
 
 
 
 
 
                                                               Annex 1901.2                                             
                  ____________ 
 
 
            4.   On appointment of the fifth panelist, the panelists shall 
            promptly appoint a chairman from among the lawyers on the panel 
            by majority vote of the panelists.  If there is no majority 
            vote, the chairman shall be appointed by lot from among the 
            lawyers on the panel. 
 
            5.   Decisions of the panel shall be by majority vote and based 
            on the votes of all members of the panel.  The panel shall 
            issue a written decision with reasons, together with any 
            dissenting or concurring opinions of panelists. 
 
            6.   Panelists shall be subject to the code of conduct 
            established pursuant to Article 1909.  If an involved Party 
            believes that a panelist is in violation of the code of 
            conduct, the involved Parties shall consult and if they agree, 
            the panelist shall be removed and a new panelist shall be 
            selected in accordance with the procedures of this Annex. 
 
            7.   When a panel is convened pursuant to Article 1904 each 
            panelist shall be required to sign:  
 
                 (a)  an application for protective order for information 
                      supplied by the United States or its persons covering 
                      business proprietary and other privileged 
                      information;  
 
                 (b)  an undertaking for information supplied by Canada or 
                      its persons covering confidential, personal, business 
                      proprietary and other privileged information; or  
 
                 (c)  an undertaking for information supplied by Mexico or 
                      its persons covering confidential, business 
                      proprietary and other privileged information. 
 
            8.   On a panelist's acceptance of the obligations and terms of 
            an application for protective order or disclosure undertaking, 
            the importing Party shall grant access to the information 
            covered by such order or disclosure undertaking.  Each Party 
            shall establish appropriate sanctions for violations of 
            protective orders or disclosure undertakings issued by or given 
            to any Party.  Each Party shall enforce such sanctions with 
            respect to any person within its jurisdiction.  Failure by a 
            panelist to sign a protective order or disclosure undertaking 
            shall result in disqualification of the panelist. 
 
            9.   If a panelist becomes unable to fulfill panel duties or is 
            disqualified, proceedings of the panel shall be suspended 
 
 
 
                                         19-18  
 
 
 
 
 
 
  
 
 
 
 
 
                                                               Annex 1901.2                                             
                  ____________ 
 
 
            pending the selection of a substitute panelist in accordance 
            with the procedures of this Annex. 
 
            10.  Subject to the code of conduct established pursuant to 
            Article 1909, and provided that it does not interfere with the 
            performance of the duties of such panelist, a panelist may 
            engage in other business during the term of the panel. 
 
            11.  While acting as a panelist, a panelist may not appear as 
            counsel before another panel. 
 
            12.  With the exception of violations of protective orders or 
            disclosure undertakings, signed pursuant to paragraph 7, 
            panelists shall be immune from suit and legal process relating 
            to acts performed by them in their official capacity. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                         19-19  
 
 
 
 
 
 
  
 
 
 
 
 
                                                               Annex 1903.2                                             
                  ____________ 
 
 
                                      Annex 1903.2 
 
                          Panel Procedures Under Article 1903 
 
 
            1.   The panel shall establish its own rules of procedure 
            unless the Parties otherwise agree prior to the establishment 
            of that panel.  The procedures shall ensure a right to at least 
            one hearing before the panel, as well as the opportunity to 
            provide written submissions and rebuttal arguments.  The 
            proceedings of the panel shall be confidential, unless the two 
            Parties otherwise agree.  The panel shall base its decisions 
            solely on the arguments and submissions of the two Parties. 
 
            2.   Unless the Parties to the dispute otherwise agree, the 
            panel shall, within 90 days after its chairman is appointed, 
            present to the two Parties an initial written declaratory 
            opinion containing findings of fact and its determination 
            pursuant to Article 1903. 
 
            3.   If the findings of the panel are affirmative, the panel 
            may include in its report its recommendations as to the means 
            by which the amending statute could be brought into conformity 
            with the provisions of Article 1902(2)(d).  In determining 
            what, if any, recommendations are appropriate, the panel shall 
            consider the extent to which the amending statute affects 
            interests under this Agreement.  Individual panelists may 
            provide separate opinions on matters not unanimously agreed.  
            The initial opinion of the panel shall become the final 
            declaratory opinion, unless a Party to the dispute requests a 
            reconsideration of the initial opinion pursuant to paragraph 4. 
 
            4.   Within 14 days of the issuance of the initial declaratory 
            opinion, a Party to the dispute disagreeing in whole or in part 
            with the opinion may present a written statement of its 
            objections and the reasons for those objections to the panel.  
            In such event, the panel shall request the views of both 
            Parties and shall reconsider its initial opinion.  The panel 
            shall conduct any further examination that it deems 
            appropriate, and shall issue a final written opinion, together 
            with dissenting or concurring views of individual panelists, 
            within 30 days of the request for reconsideration. 
 
            5.   Unless the Parties to the dispute otherwise agree, the 
            final declaratory opinion of the panel shall be made public, 
            along with any separate opinions of individual panelists and 
            any written views that either Party may wish to be published. 
 
 
 
                                         19-20  
 
 
 
 
 
 
  
 
 
 
 
 
                                                               Annex 1903.2                                             
                  ____________ 
 
 
            6.   Unless the Parties to the dispute otherwise agree, 
            meetings and hearings of the panel shall take place at the 
            office of the amending Party's Section of the Secretariat. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                         19-21  
 
 
 
 
 
 
  
 
 
 
 
 
                                                              Annex 1904.13                                            
                  _____________ 
 
 
                                     Annex 1904.13 
 
                           Extraordinary Challenge Procedure 
 
 
            1.   The involved Parties shall establish an extraordinary 
            challenge committee, composed of three members, within 15 days 
            of a request pursuant to Article 1904(13).  The members shall 
            be selected from a 15-person roster comprised of judges or 
            former judges of a federal judicial court of the United States 
            or a judicial court of superior jurisdiction of Canada, or a 
            federal judicial court of Mexico.  Each Party shall name five 
            persons to this roster.  Each involved Party shall select one 
            member from this roster and the involved Parties shall decide 
            by lot which of them shall select the third member from the 
            roster. 
 
            2.   The Parties shall establish by the date of entry into 
            force of the Agreement rules of procedure for committees.  The 
            rules shall provide for a decision of a committee within 
            90 days of its establishment. 
 
            3.   Committee decisions shall be binding on the Parties with 
            respect to the particular matter between the Parties that was 
            before the panel.  After examination of the legal and factual 
            analysis underlying the findings and conclusions of the panel's 
            decision in order to determine whether one of the grounds set 
            out in Article 1904(13) has been established, and on finding 
            that one of those grounds has been established, the committee 
            shall vacate the original panel decision or remand it to the 
            original panel for action not inconsistent with the committee's 
            decision; if the grounds are not established, it shall deny the 
            challenge and, therefore, the original panel decision shall 
            stand affirmed.  If the original decision is vacated, a new 
            panel shall be established pursuant to Annex 1901.2. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                         19-22  
 
 
 
 
 
 
  
 
 
 
 
 
                                                              Annex 1904.15                                            
                  _____________ 
 
 
                                     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 re-determination; 
            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 re-determination 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. 
 
 
 
 
 
                                         19-23  
 
 
 
 
 
 
  
 
 
 
 
 
                                                              Annex 1904.15                                            
                  _____________ 
 
 
            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: 
 
 
 
 
                                         19-24  
 
 
 
 
 
 
  
 
 
 
 
 
                                                              Annex 1904.15                                            
                  _____________ 
 
 
                 (a)  elimination of the possibility of imposing duties 
                      within the five-day period after the acceptance of a 
                      petition; 
 
                 (b)  substitution of the term Resoluci n de Inicio 
                      ("Initial Resolution") for the term Resoluci n 
                      Provisional ("Provisional Resolution") and the term 
                      Resoluci n Provisional ("Provisional Resolution") for 
                      the term Resoluci n que revisa a la Resoluci n 
                      Provisional ("Resolution Reviewing the Provisional 
                      Resolution"); 
 
                 (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 Diario 
                      Oficial de la Federaci n ("Federal Official Journal") 
 
 
                                         19-25  
 
 
 
 
 
 
  
 
 
 
 
 
                                                              Annex 1904.15                                            
                  _____________ 
 
 
                      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; 
 
 
 
 
                                         19-26  
 
 
 
 
 
 
  
 
 
 
 
 
                                                              Annex 1904.15                                            
                  _____________ 
 
 
                 (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 Diario Oficial de la Federaci n ("Federal 
                      Official Journal") of initiation of investigations 
                      setting forth the nature of the proceeding, the legal 
 
 
                                         19-27  
 
 
 
 
 
 
  
 
 
 
 
 
                                                              Annex 1904.15                                            
                  _____________ 
 
 
                      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 
 
 
                                         19-28  
 
 
 
 
 
 
  
 
 
 
 
 
                                                              Annex 1904.15                                            
                  _____________ 
 
 
            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 
 
 
 
                                         19-29  
 
 
 
 
 
 
  
 
 
 
 
 
                                                              Annex 1904.15                                            
                  _____________ 
 
 
            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. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                         19-30  
 
 
 
 
 
 
  
 
 
 
 
 
                                                               Annex 1905.6                                             
                  ____________ 
 
 
                                      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. 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                         19-31  
 
 
 
 
 
 
  
 
 
 
 
 
                                                                 Annex 1911                                              
                   __________ 
 
 
                                       Annex 1911 
 
                              Country-Specific 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 
                      Ley Reglamentaria del Art culo 131 de la Constituci n 
                      Pol tica 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, 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  
 
 
 
                                         19-32  
 
 
 
 
 
 
  
 
 
 
 
 
                                                                 Annex 1911                                              
                   __________ 
 
 
                      (ii) the United States International Trade 
                           Commission, or its successor; and 
 
                 (c)  in the case of Mexico, the designated authority 
                      within the Secretar a de Comercio y Fomento 
                      Industrial ("Secretariat of Trade and Industrial 
                      Development"), 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 
                      Ley Reglamentaria del Art culo 131 de la Constituci n 
                      Pol tica 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, 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 
 
 
 
                                         19-33  
 
 
 
 
 
 
  
 
 
 
 
 
                                                                 Annex 1911                                              
                   __________ 
 
 
                                pursuant to section 41 of the Special 
                                Import Measures Act, as amended,  
 
                      (iv) a re-determination 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, 
 
 
 
                                         19-34  
 
 
 
 
 
 
  
 
 
 
 
 
                                                                 Annex 1911                                              
                   __________ 
 
 
                           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 Art culo 131 de la 
                           Constituci n Pol tica 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 Secretar a de 
                           Comercio y Fomento Industrial ("Secretariat of 
                           Trade and Industrial Development"), as described 
                           in paragraph (o) of its Schedule to Annex 
                           1904.15, and 
 
                      (iii)     a final resolution by the Secretar a de 
                                Comercio y Fomento Industrial ("Secretariat 
                                of Trade and Industrial Development") 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;  
 
 
 
                                         19-35  
 
 
 
 
 
 
  
 
 
 
 
 
                                                                 Annex 1911                                              
                   __________ 
 
 
                 (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 C digo Fiscal de la Federaci n 
                      ("Federal Fiscal Code"), or any successor statutes, 
                      based solely on the administrative record. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                         19-36  
 
 
 
 
 
 
