CHAPTER 10

TRADE REMEDIES Section A: Safeguards

Article 10.1:  Rights and Obligations

  1. Each Party retains its rights and obligations under Article XIX of the GATT and the Safeguards Agreement except those regarding compensation or retaliation and exclusion from an action to the extent that such rights or obligations are inconsistent with this Article. Any Party taking an emergency action under Article XIX and the Safeguards Agreement shall exclude imports of a good from each other Party from the action unless:

(a)        imports from a Party, considered individually, account for a substantial share of total imports; and

(b)        imports from a Party considered individually, or in exceptional circumstances imports from Parties considered collectively, contribute importantly to the serious injury, or threat thereof, caused by imports.

  1. In determining whether:

(a)        imports from a Party, considered individually, account for a substantial share of total imports, those imports normally shall not be considered to account for a substantial share of total imports if that Party is not among the top five suppliers of the good subject to the proceeding, measured in terms of import share during the most recent three-year period; and

(b)       imports from a Party or Parties contribute importantly to the serious injury, or threat thereof, the competent investigating authority shall consider such factors as the change in the import share of each Party, and the level and change in the level of imports of each Party. In this regard, imports from a Party normally shall not be deemed to contribute importantly to serious injury, or the threat thereof, if the growth rate of imports from a Party during the period in which the injurious surge in imports occurred is appreciably lower than the growth rate of total imports from all sources over the same period.

  1. A Party taking such action, from which a good from another Party or Parties is initially excluded pursuant to paragraph 1, shall have the right subsequently to include that good from the other Party  or  Parties in  the  action  in  the  event  that  the  competent  investigating  authority determines that a surge in imports of such good from the other Party or Parties undermines the effectiveness of the action.
  1. A Party shall, without delay, deliver written notice to the other Parties of the institution of a proceeding that may result in emergency action under paragraph 1 or 3.
  1. No Party may impose restrictions on a good in an action under paragraph 1 or 3:

(a)        without delivery of prior written notice to the Commission, and without adequate opportunity for consultation with the Party or Parties against whose good the action is proposed to be taken, as far in advance of taking the action as practicable; and

(b)        that would have the effect of reducing imports of such good from a Party below the trend of imports of the good from that Party over a recent representative base period with allowance for reasonable growth.

  1. The Party taking an action pursuant to this Article shall provide to the Party or Parties against whose good the action is taken mutually agreed trade liberalizing compensation in the form of concessions having substantially equivalent trade effects or equivalent to the value of the additional duties expected to result from the action. If the Parties concerned are unable to agree on compensation, the Party against whose good the action is taken may take action having trade effects substantially equivalent to the action taken under paragraph 1 or 3.

Section B: Antidumping and Countervailing Duties

Article 10.2:  Definitions

For purposes of this Section and Annex 10-A:

confidential information means, information that is provided to an investigating authority on a confidential basis and that is by its nature confidential (for example, because its disclosure would be of significant competitive advantage to a competitor or because its disclosure would have a significantly adverse effect upon a person supplying the information or upon a person from whom that person acquired the information), whether in its original form or in a form other than the one in which it was originally provided;

interested party1 means:

(a)        an exporter, foreign producer, or importer of a product subject to a proceeding, or a trade or business association a majority of the members of which are producers, exporters, or importers of such product;

(b)       the government of the exporting Party;

(c)        a producer of the like product in the territory of the importing Party, or a trade and business association a majority of the members of which produce the like product in the territory of the importing Party; or

(d)       any other person treated as an interested party by the investigating authority of the importing Party;

investigating  authority  means  any  authority  of  a  Party  that  conducts  antidumping  or countervailing duty proceedings;

responding party means:

(a)        for Mexico and Canada, a person or entity that an investigating authority of a Party requires to respond to an antidumping or countervailing duty questionnaire or any other request; and

(b)        for the United States, a producer, manufacturer, exporter, importer, or, where appropriate, a government or government entity, that an investigating authority of a Party requires to respond to an antidumping or countervailing duty questionnaire;

proceeding means:

(a)        for Mexico, an antidumping or countervailing duty investigation, review, or other relevant set of formalities and acts provided by the legal system which precede the issuance of the administrative act conducted by an investigating authority; and

(b)        for the United States and Canada,  all segments of a proceeding, and begins on the date of the formal filing of an antidumping or countervailing duty application,2 or

1  For greater certainty, an entity or person may be an interested party as long as they fulfill all the corresponding requirements, if any, provided in the domestic legislation of the importing Party.

2 For Canada, the formal filing of an antidumping or countervailing duty application corresponds to the determination that a complaint is properly documented.

the publication of a notice of initiation in a self-initiated investigation, and ends with the conclusion of all administrative action pertaining to the product under consideration; and

segment of a proceeding means, for the United States and Canada,3 an antidumping or countervailing duty investigation, review, or other relevant action conducted by an investigating authority.4

Article 10.3:  Rights and Obligations

  1. Each Party retains its rights and obligations under Article VI of GATT 1994, the AD Agreement and the SCM Agreement.
  1. Except as provided in Annex 10-A, nothing in this Agreement shall be construed to confer any rights or impose any obligations on the Parties with respect to antidumping or countervailing duty proceedings or measures taken pursuant to Article VI of GATT 1994, the AD Agreement, or the SCM Agreement.
  1. No Party shall have recourse to dispute settlement under this Agreement for any matter arising under this Section or Annex 10-A.

Section C: Cooperation on Preventing Duty Evasion of Trade Remedy Laws

Article 10.4:  General

  1. The Parties recognize their shared concerns regarding duty evasion5 of antidumping, countervailing, and safeguard duties, and the importance of cooperation, including through information sharing, to combat duty evasion.
  1. The Parties agree to strengthen and expand their customs and trade enforcement efforts in matters related to duty evasion, and to strengthen their cooperation as set out in the Article 10.5.

3   For Mexico, this definition does not apply.

4  For Canada, relevant actions conducted by an investigating authority do not cover duty assessment and related procedures.

5   For purposes of this Section, “duty evasion” refers to evasion of antidumping, countervailing, or safeguards duties.

Article 10.5:  Duty Evasion Cooperation

  1. Each Party shall, in accordance with its laws and regulations, cooperate with the other Parties for the purposes of enforcing or assisting in the enforcement of their respective measures concerning duty evasion.
  1. The  Parties  shall,  subject  to  their  respective  laws  and  regulations,  share  customs information pertaining to imports, exports, and transit transactions, to help enable the Parties to combat duty evasion and conduct joint or coordinated analysis and investigations of suspected duty evasion.   In addition, each Party shall maintain a mechanism through which it can share information with the other Parties regarding entries that may involve evasion of antidumping, countervailing, or safeguard duties, including the information described in paragraph 3.   The information referred to in this paragraph may be trader-specific or it may include an industry sector or group of traders.
  1. Each Party shall, on the request of another Party, provide, consistent with its laws or regulations, the requesting Party with information collected in connection with the imports, exports and transit, and other relevant information that it has or can reasonably obtain, that will help enable the requesting Party to determine whether an entry into its territory is subject to antidumping, countervailing, or safeguard duties imposed by the requesting Party.6
  1. A request for information described in paragraph 3 shall be made in writing, by the customs authority of the requesting Party to the customs authority of the requested Party, by electronic means or any other acceptable method, and shall include sufficient information for the requested Party to respond.
  1. A Party may request in writing that another Party conduct a duty evasion verification,7 in the requested Party’s territory for the purposes of obtaining information, including documents, from an exporter or producer, that will enable the requesting Party to determine whether a particular entry into the requesting Party’s territory is subject to antidumping, countervailing, or safeguard duties imposed by the requesting Party. The requested Party shall respond to the request promptly and in any case no later than 30 days after the date it receives the request. The response will include whether it will conduct the duty evasion verification. If the Party does not intend to conduct the duty evasion verification, the response will indicate the basis for refusal.  If a Party will conduct the duty evasion verification, the response will indicate the intended timing and other relevant details.

6  For greater certainty, nothing in this Section shall be construed as an obligation of the requested Party to provide an original or copy of an export declaration submitted to its customs authority.

7  For greater certainty, a duty evasion verification visit to facilities located in the territory of a requested Party shall be subject to the provisions in paragraph 7.

  1. If the requested Party conducts a duty evasion verification under paragraph 5 it shall provide the requesting Party promptly upon completing the duty evasion verification a report containing the relevant information including data and documents, obtained during its duty evasion verification.
  1. Without respect to whether a request to conduct a verification was made under paragraph

5, a duty evasion verification may be conducted in the pertinent or relevant facilities located in the territory of the requested Party, as a result of a request.  The requested Party normally shall grant the other Party access to its territory to participate in the duty evasion verification, absent extraordinary circumstances, provided that:

(a)       the  duty  evasion  verification  is  subject  to  mutually  agreed  conditions  and procedures between the Parties;8

(b)       the requesting Party gives reasonable advance notice to the requested Party before the proposed date of the duty evasion verification; and

(c)       the  parties  to  be  verified  in  the  requested  Party  consent  to  the  duty  evasion verification.

  1. Each Party shall maintain procedures that permit the sharing of confidential information with the other Parties, as a result of a request under paragraph 3 or a duty evasion verification report under paragraph 6, for the limited purpose of determining if duty evasion exists. If a Party, or a verified party, provides information to another Party in accordance with this Section and designates the information as confidential or is confidential under the receiving Party’s law, such receiving Party shall keep the information confidential in accordance with its law. If the receiving Party has not kept the information confidential in accordance with its law, a Party may decline to provide information requested by another Party in future requests for confidential information. The receiving Party may use or disclose confidential information received from the other Party under this Section but only for the purposes of administration or enforcement of its customs laws or as otherwise provided under the Party’s law, including in an administrative, quasi-judicial, or judicial proceeding.

8  For purposes of subparagraph (a), the Parties may agree to use any applicable mechanism, including existing bilateral cooperation mechanisms.

SECTION D:

REVIEW AND DISPUTE SETTLEMENT IN ANTIDUMPING AND COUNTERVAILING DUTY MATTERS

Article 1:  General Provisions

  1. Article 4 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.
  1. For purposes of Articles 3 and 4, panels shall be established in accordance with the provisions of Annex 10-B.1.
  1. Except for Article 34.5 (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 2:  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.
  1. 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, 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)         GATT 1994, the AD Agreement or the SCM Agreement, or any successor agreement to which the Parties 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 3:  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 2(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 4 and does not conform to the provisions of Article

2(2)(d)(i) or (ii).

Such declaratory opinion shall have force or effect only as provided in this Article.

  1. The panel shall conduct its review in accordance with the procedures of Annex 10-B.2.
  1. 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 4:  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.
  1. 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 Section.
  1. The panel shall apply the standard of review set out in Article 11 and the general legal principles that a court of the importing Party otherwise would apply to a review of a determination of the competent investigating authority.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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 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.
  1. 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.
  1. 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.

  1. 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.
  1. 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.

  1. 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,

(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 10-B.3.

  1. For purposes of this Article, the Parties shall adopt or maintain rules of procedure 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 posthearing 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.

  1.  In order to achieve the objectives of this Article, the Parties shall maintain or 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)        maintain or 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)        maintain or 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)       maintain or 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)       maintain the amendments set out in its Schedule to Annex 1904.15 of the NAFTA

1994, as reproduced in Annex 10-B.4, and make any conforming amendments necessary.

Article 5:  Safeguarding the Panel Review System

  1. Where a Party alleges that the application of another Party’s domestic law:

(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 11,

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.

  1. 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.
  1. 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 Section.
  1. The roster for special committees shall be that established under Annex 10-B.2.
  1. The special committee shall comprise three members selected in accordance with the procedures set out in Annex 10-B.3.
  1. The Parties shall establish rules of procedure in accordance with the principles set out in

Annex 10-B.3.

  1. 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 achieve a mutually satisfactory solution within 60 days of the issuance of the committee’s report.

  1. 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 4 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.

  1. In the event that a complaining Party suspends the operation of Article 4 with respect to the Party complained against, the latter Party may reciprocally suspend the operation of Article 4 within 30 days after the suspension of the operation of Article 4 by the complaining Party. If either Party decides to suspend the operation of Article 4, it shall provide written notice of such suspension to the other Party.
  1. On 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.

  1. If the special committee makes an affirmative finding with respect to one of the grounds specified in paragraph 1, then 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 4 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 4(4) or Annex 10-B.3 for requesting panel or committee review shall not run unless and until resumed in accordance with paragraph 12.

  1. If either Party suspends the operation of Article 4 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 4; 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

4.

If either Party suspends the operation of Article 4 pursuant to paragraph 8(a), any running of time suspended under paragraph 11(b) shall resume.

If the suspension of the operation of Article 4 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.

  1. 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.

  1. 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 4 or the application of other benefits under paragraph 8.

Article 6:  Prospective Application

This Section 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 3, amendments to antidumping or countervailing duty statutes enacted after the date of entry into force of this Agreement.

Article 7: 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 Section 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 Section are carried out expeditiously.
  1. 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.

  1. 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 law of a Party; any privileges arising 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 4 in determining whether such determination was in accordance with the antidumping or countervailing duty law of the importing Party.

Article 8:  Special Secretariat Provisions

  1. Each Party shall maintain a Secretariat to facilitate the operation of this Section, including the work of panels or committees that may be convened pursuant to this Section.
  1. The Secretaries of the Secretariat shall act jointly to provide administrative assistance to all panels or committees established pursuant to this Section. 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 another 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.
  1. 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 Section 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.
  1. 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 2. 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 9:  Code of Conduct

The Parties shall exchange letters establishing a code of conduct for panelists and members of committees established pursuant to Articles 3, 4, and 5.

Article 10:  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 11:  Country-Specific Definitions

For purposes of this Section:

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 means:

(a)       in the case of Canada, the relevant provisions of the Special Import Measures Act, as amended, and any successor statutes;

(b)        in the case of the United States, the relevant provisions of Title VII of the Tariff Act of 1930, as amended, and any successor statutes;

(c)       in the case of Mexico, the relevant provisions of the Foreign Trade Act (“Ley de

Comercio Exterior”), as amended, and any successor statutes; and

(d)       the  provisions  of  any  other  statute  that  provides  for  judicial  review  of  final determinations under subparagraph (a), (b) or (c), or indicates the standard of review to be applied to such determinations;

competent investigating authority means:

(a)        in the case of Canada (i) the Canadian International Trade Tribunal, or its successor, or (ii) the President of the Canada Border Services Agency as defined in the Special Import Measures Act, as amended, or the President’s successor;

(b)       in the case of the United States

(i)        the International Trade Administration of the United States Department of

Commerce, or its successor, or

(ii)       the United States International Trade Commission, or its successor; and

(c)       in the case of Mexico, the designated authority within the Secretariat of Economy

(“Secretaría de Economía”), or its successor;

countervailing duty statute means:

(a)       in the case of Canada, the relevant provisions of the Special Import Measures Act, as amended, and any successor statutes;

(b)       in the case of the United States, section 303 and the relevant provisions of Title VII

of the Tariff Act of 1930, as amended, and any successor statutes;

(c)       in the case of Mexico, the relevant provisions of the Foreign Trade Act (“Ley de

Comercio Exterior”), as amended, and any successor statutes; and

(d)       the  provisions  of  any  other  statute  that  provides  for  judicial  review  of  final determinations under subparagraph (a), (b) or (c), or indicates the standard of review to be applied to such determinations;

domestic law for purposes of Article 5.1 means a Party’s constitution, statutes, regulations and judicial decisions to the extent they are relevant to the antidumping and countervailing duty laws;

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 President of the Canada Border Services Agency pursuant to section 41 of the Special Import Measures Act, as amended,

(iv)      a redetermination by the President 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 President of an undertaking pursuant to subsection 53(1) of the Special Import Measures Act, as amended; and

(b)       in the case of the United States,

(i)        a final affirmative determination by the International Trade Administration of the United States Department of Commerce or by the United States International Trade Commission under section 705 or 735 of the Tariff Act of 1930, as amended, including any negative part of such a determination,

(ii)        a final negative determination by the International Trade Administration of the United States Department of Commerce or by the United States International Trade Commission under section 705 or 735 of the Tariff Act of 1930, as amended, including any affirmative part of such a determination,

(iii)       a final determination, other than a determination in (iv), under section 751 of the Tariff Act of 1930, as amended,

(iv)       a determination by the United States International Trade Commission under section 751(b) of the Tariff Act of 1930, as amended, not to review a determination based on changed circumstances, and

(v)        a final determination by the International Trade Administration of the United States Department of Commerce as to whether a particular type of merchandise is within the class or kind of merchandise described in an existing finding of dumping or antidumping or countervailing duty order; and

(c)       in the case of the Mexico,

(i)        a   final   resolution   regarding   antidumping   or   countervailing   duties investigations by the Secretaría de Economía, pursuant to Article 59 of the Ley de Comercio Exterior (“Foreign Trade Act “), as amended,

(ii)        a final resolution regarding an annual administrative review of antidumping or  countervailing  duties  by  the Secretariat  of  Economy (“Secretaría  de Economía”), as described in paragraph (o) of its Schedule to Annex 10-B.4, and

(iii)      a   final   resolution   by   the Secretariat   of   Economy   (“Secretaría   de Economía”), 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

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 GATT 1994;

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 following standards, as may be amended from time to time by the relevant Party:

(a)       in the case of Canada, the grounds set out in subsection 18.1(4) of the Federal Court

Act, as amended, with respect to all final determinations; (b)        in the case of the United States,

(i)        the standard set out in section 516A(b)(l)(B) of the Tariff Act of 1930, as amended, with the exception of a determination referred to in (ii), and

(ii)        the standard set out in section 516A(b)(l)(A) of the Tariff Act of 1930, as amended, with respect to a determination by the United States International Trade Commission not to initiate a review pursuant to section 751(b) of the Tariff Act of 1930, as amended; and

(c)        in the case of the Mexico, the standard set out in Article 51 of the Ley Federal de Procedimiento Contencioso Administrativo (“Federal Act of Administrative Litigation Procedure”), or any successor statutes, based solely on the administrative record.

ANNEX 10-A

The Parties recognize the right to apply trade remedy measures consistent with Article VI of GATT 1994, the AD Agreement, and the SCM Agreement, and the importance of promoting transparency in antidumping and countervailing duty proceedings and of ensuring the opportunity of all interested parties to participate meaningfully in such proceedings.9

  1. To facilitate access to information relevant to antidumping and countervailing duty proceedings, a Party shall make electronically available to the public the following:

(a)        laws  and  regulations  that  pertain  to  its  antidumping  and  countervailing  duty proceedings; and

(b)       sample questionnaires that it would issue in a typical antidumping proceeding.

In making information electronically available, a Party shall endeavor to minimize the number of webpages on which it provides such information.   A Party shall also endeavor to make electronically available other information relevant to antidumping and countervailing duty proceedings such as manuals, guidelines, templates, and other reference and orientation materials, where applicable.10

  1. For each antidumping and countervailing duty proceeding which involves imports of another Party, initiated11 after the date of entry into force of this Agreement, each investigating authority of a Party shall maintain and make available without charge by means of a web-based access point for all interested parties:12

(a)       a file that contains,

9  With regards to the provisions in this Annex, the Parties shall protect the confidentiality of the information pursuant to each Party’s law.

10   For greater certainty, the documents listed in this paragraph are not intended to constitute a comprehensive list of documents relating to antidumping and countervailing duty proceedings and no inference shall be drawn from this list’s inclusion or exclusion of a particular document.  Such documents may be made electronically available to the extent that they are available.

11   For greater certainty, when the proceedings involve imports from other countries of the same subject merchandise and are initiated on the same date, this paragraph also applies.

12    For greater certainty, for the United States, this paragraph shall not impact information and data already made publicly available pursuant to its law.

(i)         all non-confidential documents that are part of its administrative record for each segment of a proceeding (proceeding in the case of Mexico); and

(ii)        to  the  extent  feasible  without  revealing  confidential  information,  non- confidential summaries of confidential information contained in its administrative record;13 and

(b)        a listing of all documents that are part of its administrative record for each segment of a proceeding (proceeding in the case of Mexico) in a manner that enables any interested party to identify and locate particular documents in the file.

If technical constraints prevent web-based access to a document that is part of its administrative record for each segment of a proceeding (proceeding in the case of Mexico), the investigating authority may instead make the document available for all interested parties, pursuant to the domestic legislation  of  the  Party, by  means  of  physical  inspection  during the investigating authority’s normal business hours.

  1. Each investigating authority of a Party shall maintain or establish a system through which interested parties participating in an antidumping or countervailing duty segment of a proceeding (proceeding in the case of Mexico) shall submit documents electronically in such a segment of a proceeding (proceeding in the case of Mexico). Notwithstanding the previous sentence, each investigating authority of a Party may require manual submission of a petition, or of other documents in exceptional circumstances, including where technical constraints may impact the ability of interested parties to submit certain documents electronically.
  1. For the purposes of paragraphs 2 and 3, the web-based access point and the system for submitting documents electronically shall be established or maintained beginning no later than 5 years after the date of entry into force of this Agreement and:

(a)        if a Party requests assistance with implementation of these obligations from another Party, that Party may provide assistance to the extent practicable.   The Parties recognize that a need for assistance may necessitate additional flexibility in implementing the systems set forth in paragraphs 2 and 3, pursuant to the provisions in paragraph 4(b).

(b)        the Parties are aware of the technical and financial difficulties of establishing and maintaining the systems set forth in paragraphs 2 and 3, and may consult to discuss

13    To the extent that individual information is not susceptible of summarization without disclosing confidential information, it may be aggregated. Nothing in this paragraph shall require an investigating authority to make publicly available a non-confidential summary of a questionnaire response that the investigating authority treats as confidential in its entirety.

additional flexibility regarding the establishment and maintenance of such systems, as necessary.

  1. Upon receipt of a formally filed antidumping or countervailing duty application with respect to imports of another Party, and normally no later than 7 days prior to the date on which the investigating authority issues a determination on the application, the Party shall notify the other Party or Parties that it received the application.14
  1. In any  segment  of  a  proceeding  (proceeding  in  the  case  of  Mexico)  in  which  an investigating authority of a Party determines to conduct an in-person verification of information provided by a responding party and pertinent to the calculation of an antidumping duty margin or the level of a countervailable subsidy, the investigating authority shall promptly notify the responding party of its intent to do so, and normally shall:

(a)        provide the responding party advance notice of the dates on which the investigating authority intends to conduct any such in-person verification of information;

(b)        prior to any such in-person verification, provide the responding party a document that sets forth the topics the responding party should be prepared to address during the verification and describes the types of supporting documentation the responding party should make available for review;

(c)        after the verification is completed prepare a written report describing the methods and procedures that it followed in carrying out the verification and the results of the verification; and

(d)       make the report available to all interested parties, without disclosing confidential information, in sufficient time for the interested parties to defend their interests in the segment of a proceeding (proceeding in the case of Mexico).

  1. An investigating authority of a Party shall disclose, inter alia, for each interested party for whom the investigating authority has determined an individual rate of duty, the calculations used to determine the rate of dumping or countervailable subsidization and, if different, the calculations used to determine the rate of duty to be applied to imports of the interested party. The disclosure and explanation shall be in sufficient detail so as to permit the interested party to reproduce the calculations without undue difficulty.  Such disclosure shall include, whether in electronic format (such as a computer program or spreadsheet) or in any other medium, a detailed explanation of the information the investigating authority used, the sources of that information, and any adjustments

14   For Mexico, this notification shall apply only to an affirmative determination on the application.

it made to the information when used in the calculations.15    The investigating authority shall provide interested parties adequate opportunity to respond to the disclosure.

  1. Upon receipt of a formally filed antidumping or countervailing duty application by the investigating authority of a Party against imports of goods from a non-Party, the investigating authorities of the other Parties may consider the information and data in the application and make a determination as to whether self-initiation of an antidumping or countervailing duty investigation or other relevant action is warranted.
  1. To the extent feasible, Parties may exchange non-Parties’ subsidy information and consider whether self-initiation of a countervailing duty investigation or other relevant action is warranted.

15    When making such disclosure, the Parties shall protect the confidentiality of the information in the disclosure pursuant to the Party’s law.

ANNEX 10-B.1

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 Section D. 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.

  1. 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.
  1. 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.
  1. On appointment of the fifth panelist, the panelists shall promptly appoint a chair from among the lawyers on the panel by majority vote of the panelists. If there is no majority vote, the chair shall be appointed by lot from among the lawyers on the panel.
  1. 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.
  1. Panelists shall be subject to the code of conduct established pursuant to Article 9. 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.

  1. When a panel is convened pursuant to Article 4 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.

  1. 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 an application for a protective order or disclosure undertaking shall result in disqualification of the panelist.
  1. If a panelist becomes unable to fulfill panel duties or is disqualified, proceedings of the panel shall be suspended pending the selection of a substitute panelist in accordance with the procedures of this Annex.
  1. Subject to the code of conduct established pursuant to Article 9, 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.
  1. While acting as a panelist, a panelist may not appear as counsel before another panel.
  1. 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.

PANEL PROCEDURES UNDER ARTICLE 3

  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.
  1. Unless the Parties to the dispute otherwise agree, the panel shall, within 90 days after its chair is appointed, present to the two Parties an initial written declaratory opinion containing findings of fact and its determination pursuant to Article 3.
  1. 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 2(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.

  1. 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.
  1. 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.
  1. 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.

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 4.13. 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 or quasi- 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.
  1. The Parties shall establish and maintain rules of procedure for committees. The rules shall provide for a decision of a committee within 90 days of its establishment.
  1. 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 4.13 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

10-B.1.

AMENDMENTS TO DOMESTIC LAWS

Schedule of Canada

  1. Canada shall amend sections 56 and 58 of the Special Import Measures Act, as amended, to allow the United States with respect to goods of the United States or Mexico with respect to goods of Mexico or a United States or a Mexican manufacturer, producer, or exporter, without regard to payment of duties, to make a written request for a redetermination; and section 59 to require the Deputy Minister to make a ruling on a request for a redetermination within one year of a request to a designated officer or other customs officer.
  1. 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).
  1. Canada shall amend the Special Import Measures Act, as amended, and any other relevant provisions of law, to provide that the following actions of the Deputy Minister shall be deemed for the purposes of this Article to be final determinations subject to judicial review:

(a)       a determination by the Deputy Minister pursuant to section 41;

(b)       a redetermination by the Deputy Minister pursuant to section 59; and

(c)        a review by the Deputy Minister of an undertaking pursuant to section 53(1).

  1. 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.
  1. Canada shall amend Part II of the Special Import Measures Act, as amended, to provide for definitions related to this Annex, as may be required.
  1. 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.
  1. 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.
  1. 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 Annex.
  1. 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 4 and Annex 10-B.3.
  1. 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 Section D.
  1. Canada shall make such amendments as are necessary to establish a Canadian Secretariat for this Agreement and generally to facilitate the operation of Section and the work of the binational panels, extraordinary challenge committees and special committees convened under Section D.

Schedule of Mexico

Mexico shall amend its antidumping and countervailing duty statutes and regulations, and other statutes and regulations to the extent that they apply to the operation of the antidumping and countervailing duty laws, to provide the following:

(a)       elimination of the possibility of imposing duties within the five-day period after the acceptance of a petition;

(b)       substitution  of  the  term Initial  Resolution (“Resolución  de  Inicio”)  for  the term Provisional Resolution (“Resolución Provisional”) and the term Provisional Resolution (“Resolución  Provisional  “)  for  the  term Resolution  Reviewing  the Provisional Resolution (“Resolución que revisa a la Resolución Provisional”);

(c)         full participation in the administrative process for interested parties, as well as the right to administrative appeal and judicial review of final determinations of investigations, reviews, product coverage or other final decisions affecting them;

(d)       elimination of the possibility of imposing provisional duties before the issuance of a preliminary determination;

(e)       the right to immediate access to review of final determinations by binational panels for interested parties, without the need to exhaust first the administrative appeal;

(f)        explicit and adequate timetables for determinations of the competent investigating authority and for the submission of questionnaires, evidence and comments by interested parties, as well as an opportunity for them to present facts and arguments in support of their positions prior to any final determination, to the extent time permits, including an opportunity to be adequately informed in a timely manner of and  to  comment  on  all  aspects  of preliminary  determinations  of  dumping  or subsidization;

(g)        written notice to interested parties of any of the actions or resolutions rendered by the competent investigating authority, including initiation of an administrative review as well as its conclusion;

(h)         disclosure  meetings  with  interested  parties  by  the  competent  investigating authority conducting its investigations and reviews, within seven calendar days after the date of publication in the Federal Official Journal (“Diario Oficial de la Federación”) of preliminary and final determinations, to explain the margins of dumping and the amount of subsidies calculations and to provide the interested parties with copies of sample calculations and, if used, computer programs;

(i)        timely access by eligible counsel of interested parties during the course of the proceeding (including disclosure meetings) and on appeal, either before a national tribunal or a panel, to all information contained in the administrative record of the proceeding, including confidential information, excepting proprietary information of such a high degree of sensitivity that its release would lead to substantial and irreversible harm to the owner as well as government classified information, subject to an undertaking for confidentiality that strictly forbids use of the information for personal benefit and its disclosure to persons who are not authorized to receive such information; and for sanctions that are specific to violations of undertakings in proceedings before national tribunals or panels;

(j)        timely access by interested parties during the course of the proceeding, to all non- confidential information contained in the administrative record and access to such information by interested parties or their representatives in any proceeding after 90 days following the issuance of the final determination;

(k)       a mechanism requiring that any person submitting documents to the competent investigating authority shall simultaneously serve on interested persons, including foreign interests, any submissions after the complaint;

(l)        preparation  of  summaries  of ex  parte meetings  held  between  the  competent investigating authority and any interested party and the inclusion in the administrative record of such summaries, which shall be made available to parties to the proceeding; if such summaries contain business proprietary information, the

documents must be disclosed to a party’s representative under an undertaking to ensure confidentiality;

(m)      maintenance by the competent investigating authority of an administrative record as defined in Section D and a requirement that the final determination be based solely on the administrative record;

(n)       informing interested parties in writing of all data and information the administering authority requires them to submit for the investigation, review, product coverage proceeding, or other antidumping or countervailing duty proceeding;

(o)        the right to an annual individual review on request by the interested parties through which they can obtain their own dumping margin or countervailing duty rate, or can change the margin or rate they received in the investigation or a previous review, reserving to the competent investigating authority the ability to initiate a review, at any time, on its own motion and requiring that the competent investigating authority issue a notice of initiation within a reasonable period of time after the request;

(p)        application of determinations issued as a result of judicial, administrative, or panel review, to the extent they are relevant to interested parties in addition to the plaintiff, so that all interested parties will benefit;

(q)         issuance  of  binding  decisions  by  the  competent  investigating  authority  if  an interested party seeks clarification outside the context of an antidumping or countervailing duty investigation or review with respect to whether a particular product is covered by an antidumping or countervailing duty order;

(r)        a detailed statement of reasons and the legal basis for final determinations in a manner sufficient to permit interested parties to make an informed decision as to whether to seek judicial or panel review, including an explanation of methodological or policy issues raised in the calculation of dumping or subsidization;

(s)        written  notice  to  interested  parties  and  publication  in  the Federal  Official Journal (“Diario Oficial de la Federación”) of initiation of investigations setting forth the nature of the proceeding, the legal authority under which the proceeding is initiated, and a description of the product at issue;

(t)        documentation in writing of all advisory bodies’ decisions or recommendations, including the basis for the decisions, and release of such written decisions to parties to the proceeding; all decisions or recommendations of any advisory body shall be

placed in the administrative record and made available to parties to the proceeding;

and

(u)       a standard of review to be applied by binational panels as set out in subparagraph

(c) of the definition of “standard of review” in Article 11.

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.
  1. 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.
  1. 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.
  1. The United States shall amend section 405(c) of the United States-Canada Free-Trade Agreement Implementation Act of 1988, to provide that panelists selected to serve on panels or committees convened pursuant to this Chapter, and individuals designated to assist the individuals serving on such panels or committees, shall be immune from suit and legal process relating to acts performed by such individuals in their official capacity and within the scope of their functions as such panelists or committee members, except with respect to the violation of protective orders described in section 777f(d)(3) of the Tariff Act of 1930, as amended.
  1. 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.
  1. 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 4 and Annex 10-B.3 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.

  1. 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 4.5 shall be deemed, on receipt of the request by the Secretary, to be a request for binational panel review within the meaning of Article 4.4.
  1. 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.
  1. The United States shall amend section 516A(a) of the Tariff Act of 1930, as amended, to provide that the time limits for commencing an action in the Court of International Trade with regard to antidumping or countervailing duty proceedings involving Mexican or Canadian merchandise shall not begin to run until the 31st day after the date of publication in the Federal Register of notice of the final determination or the antidumping duty order.
  1. The United States shall amend section 516A(g) of the Tariff Act of 1930, as amended, to provide, in accordance with the terms of Section D, 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.
  1. 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.
  1. 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.
  1. The United States shall amend section 777 of the Tariff Act of 1930, as amended, to provide for the imposition of sanctions on any person who the competent investigating authority finds to have violated a protective order issued by the competent investigating authority of the United States or disclosure undertakings entered into with an authorized agency of Mexico or with a competent investigating authority of Canada to protect proprietary material during binational panel review.

ANNEX 10-B.5

SPECIAL COMMITTEE PROCEDURES

By the date of entry into force of this Agreement the Parties shall establish and maintain rules of procedure 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.

*          *          * [Ch. 19 Transitional Provisions – placement TBD]

  1. Chapter Nineteen of the NAFTA 1994 shall continue to apply to binational panel reviews related to final determinations published by a Party before the entry into force of this Agreement.
  1. With respect to the matters set out in paragraph 1, the Secretariat established under Article

30.6 of this Agreement shall, in all respects, perform the functions assigned to the NAFTA 1994

Secretariat under Chapter Nineteen of the NAFTA 1994 and under the domestic implementation procedures adopted by the Parties in connection therewith, until such time as the binational panel has rendered a decision and a Notice of Completion of Panel Review has been issued by the Secretariat pursuant to the Rules of Procedure for Article 1904 Binational Panel Reviews.

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