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

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

SUPPLEMENTARY INFORMATION: Chapter Nineteen of NAFTA establishes a mechanism for replacing judicial review of final antidumping and countervailing duty determinations involving imports from Canada, Mexico or the United States with review by independent binational panels. If requested, these panels will review final determinations to determine whether they are consistent with the antidumping or countervailing duty law of the importing country. Title IV of the North American Free Trade Agreement Implementation Act of 1993, Public Law No. 103-182, 107 Stat. 2057, amended United States law to implement Chapter Nineteen of the Agreement. See, e.g., 19 U.S.C. 3431 et. seq.; see also 19 CFR 356.1, et. seq.

The NAFTA Rules of Procedure for Article 1904 Binational Panel Reviews are intended to give effect to the panel review provisions of Chapter Nineteen of the Agreement by setting forth the procedures for commencing, conducting, and completing panel reviews. Originally published in 1994, these rules were the result of negotiations among Canada, Mexico, and the United States in compliance with the terms of the Agreement. See North American Free Trade Agreement: Rules of Procedure for Article 1904 Binational Panel Reviews, 59 Fed. Reg. 8685 (Feb. 23, 1994). In August 2007, Canada, Mexico, and the United States, through the NAFTA Free Trade Commission, agreed to amend the NAFTA Rules of Procedure for Article 1904 Binational Panel Reviews. These amendments provide technical changes to the rules based on changes in the governments of Canada and Mexico. These amendments also provide technical changes based on the experience of the NAFTA Secretariats and participants in the binational review process. In addition and consistent with the agreement reached through the NAFTA Free Trade Commission, these amendments require a participant other than an individual (e.g., corporate persons) to be represented by a counsel of record.

The NAFTA Rules of Procedure for Article 1904 Binational Panel Reviews are amended as described below. Following a description of the amendments is a reproduction of the rules incorporating these amendments. These rules as well as other NAFTA Chapter 19 dispute resolution provisions are also available at: http://www.nafta-sec-alena.org.

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

Amendments to Rule 3

Rule 3 is amended in light of changes to the governments of Canada and Mexico. Rule 3 is amended as follows:

The definitions in rule 3 of "privileged information", "Proprietary Information Access Application" and "Proprietary Information Access Order" are amended by replacing the words "Secretaria de Comercio y Fomento Industrial" with "Secretaria de Economia."

The definition in rule 3 of "Deputy Minister" is repealed.

The following definition is added to rule 3 following the definition of "Agreement":

" 'CBSA President' means the President of the Canada Border Services Agency appointed under subsection 7(1) of the Canada Border Services Agency Act, or the successor thereto, and includes any person authorized to perform a power, duty or function of the CBSA President under the Special Import Measures Act, as amended; " and

The words "Deputy Minister" are replaced by the words "CBSA President" in the definitions in rule 3 of "Proprietary Information Access Application", "Proprietary Information Access Order" and "service list".

Amendments to Rule 11

Rule 11 is amended to clarify which documents the responsible Secretary shall forward to the other involved Secretary, and to clarify that absent an explicit written request, only non-privileged and non-proprietary documents will be forwarded. Rule 11 is amended as follows:

11. (1) The responsible Secretary shall forward to the other involved Secretary all orders and decisions issued by the panel. The responsible Secretary shall also forward to the other involved Secretary a copy of all documents filed in the office of the responsible Secretary that are not clearly marked as privileged or proprietary pursuant to subrules 44(2) and 56(1)(a).

(2) If an involved Secretariat makes a written request to the responsible Secretary requesting any privileged or proprietary documents, the responsible Secretary shall forward such documents to the involved Secretariat forthwith.

Amendments to Rule 13

Rule 13 is amended in light of changes to the governments of Canada and Mexico. Rule 13 is amended as follows:

The words in subrule 13(1) "Secretaria de Comercio y Fomento Industrial" are replaced by "Secretaria de Economia". The words in subrule 13(1) "Deputy Minister" are replaced by the words "CBSA President".

Amendments to Rule 21

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

21. * * *

(3) A participant other than an individual must be represented by a counsel of record.

Amendments to Rule 22

Rule 22 is amended to clarify that Information Access Orders are exempt from the general multiple copy filing requirements found in Rule 22(1). Rule 22 is amended as follows:

22. (1) Subject to subrule 46(1), rule 47 and subrules 50(1), 52(3) and 73(2)(a), no document is filed with the Secretariat until one original and eight copies of the document are received by the responsible Secretariat during its normal business hours within the time period fixed for filing.

Amendments to Rule 50

Rule 50 is amended to clarify that in filing an Information Access Order with the responsible Secretariat, parties should comply with the applicable regulations of the administering authority. Rule 50 is amended as follows:

50. (1) Where a proprietary Information Access Order is issued to a person in a panel review, the person shall file with the responsible Secretariat, pursuant to the applicable regulations of the investigating authority, a copy of the Proprietary Information Access Order.

Amendments to Rule 71

Rule 71 is amended to establish that if a timely complaint is not filed, the responsible Secretariat will issue a notice terminating panel review. Rule 71 is amended as follows:

71. * * *

(3) A panel review is deemed to be terminated on the day after the expiration of the limitation period established pursuant to subrule 39(1) if no Complaint has been filed in a timely manner. The responsible Secretariat shall issue a Notice of Completion of Panel Review.

Amendments to Rule 73

Rule 73 is amended to clarify the number of copies of a remand Index and non-privileged items on the Index that the investigating authority shall file with the responsible Secretariat. In addition, Rule 73 is amended to clarify that the investigating authority must serve the remand Index on the counsel of record or, absent a counsel of record, on the participant(s), as well as file proof of that service with the responsible Secretariat. Rule 73 is amended as follows:

73. (2)(a) the investigating authority shall file with the responsible Secretariat two copies of an Index listing each item in the supplementary remand record, together with proof of service of the Index on the counsel of record of each of the participants, or where a participant is not represented by counsel, on the participant, and two copies of each non-privileged item listed in that Index, within five days after the date in which the investigating authority filed the Determination on Remand with the panel;

Amendments to Rule 78

Rule 78 is amended to harmonize the NAFTA Rules of Procedure for Article 1904 Binational Panel Reviews with the NAFTA Rules of Procedures for Article 1904 Extraordinary Challenge Committees. This amendment clarifies the effective date of a Notice of Completion of Panel Review when no Request for an Extraordinary Challenge Committee is filed and a panel has not been terminated pursuant to subrule 71(2). Rule 78 is amended as follows:

78. * * *

(b) in any other case, on the day after the expiration of the limitation period established pursuant to subrules 37(1) and 37(2)(a) of the NAFTA Extraordinary Challenge Committee Rules.

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

Contents

Preamble

Rule

1. Short Title

2. Statement of General Intent

3. Definitions and Interpretation

Part I--General

6. Duration and Scope of Panel Review

8. Responsibilities of the Secretary

--This is a summary of a Federal Register article originally published on the page number listed below--

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

Citation: "73 FR 19458"

Document Number: "Docket Number: 080403512-8513-01"

Federal Register Page Number: "19458"

"Notices"

Thursday, April 10, 2008; Posted: 03:32 PM

Source: www.tradingmarkets.com