Antidumping and Countervailing Duty Investigations of Certain Softwood Lumber Products From Canada: NAFTA Panel Decision

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

ACTION:

Notice of NAFTA Panel decision.

SUMMARY:

On August 31, 2004, a North American Free Trade Agreement (“NAFTA”) Panel reviewing the International Trade Commission's (“ITC's”) findings that an industry in the United States was threatened with material injury by reason of imports of softwood lumber from Canada, remanded the case to the ITC with explicit instructions directing the ITC to reverse its affirmative determinations. Certain Softwood Lumber Products from Canada, USA-CDA-2002-1904-07, Second [sic] Remand Decision of the Panel (August 31, 2004) (“Panel Decision III”). On September 10, 2004, while the ITC contested the Panel's authority to reverse the ITC's decision in these circumstances, a majority of the ITC Commissioners issued a determination consistent with the Panel's decision. Softwood Lumber from Canada, Inv. Nos. 701-TA-414 and 731-TA-928 (Remand) (Third) (September 10, 2004) (“Third Remand”). The Panel affirmed the Third Remand on October 12, 2004, and subsequently directed the NAFTA Secretariat to issue a Notice of Final Panel Action on October 25, 2004. Consistent with the decision of the United States Court of Appeals for the Federal Circuit (“Federal Circuit”) in Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990) (“Timken”), the Department of Commerce (“Department”) is notifying the public that the Third Remand for antidumping and countervailing duty investigations in Certain Softwood Lumber Products from Canada and the Notice of Final Panel action issued by the NAFTA Panel reviewing the ITC's determinations, discussed below, are not “in harmony” with the ITC's original results.

EFFECTIVE DATE:

November 30, 2004.

FOR FURTHER INFORMATION CONTACT:

Constance Handley for Antidumping Duty Investigation and James Terpstra for Countervailing Duty Investigation at (202) 482-0631 and (202) 482-3965, respectively, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Ave., NW, Washington, DC 20230.

SUPPLEMENTARY INFORMATION:

Background

On May 16, 2002, The ITC determined that an industry in the United States is threatened with material injury by reason of imports of softwood lumber from Canada found to be subsidized and sold in the United States at less than fair value. Softwood Lumber from Canada, Inv. Nos. 701-TA-414 and 731-TA-928 (Final), USITC Pub. 3509 (May 2002) (“Final Injury Determinations”); 67 Fed. Reg. 36068-36077 (May 22, 2002). Respondent parties subsequently challenged the ITC's Final Injury Determinations before the United States-Canada Binational Panel, pursuant to Article 1904 of NAFTA. The parties briefed and argued the case before the Panel, and on September 5, 2003, the Panel issued its decision, affirming in part and remanding in part the ITC's determinations. Certain Softwood Lumber Products from Canada, USA-CDA-2002-1904-07, Decision of the Panel (Sept. 5, 2003). On December 15, 2003, the ITC determined on remand that an industry was threatened with material injury by reason of dumped and subsidized subject imports. Softwood Lumber from Canada, Inv. Nos. 701-TA-414 and 731-TA-928 (Remand), USITC Pub. 3658 (Dec. 2003). By decision circulated on April 29, 2004, the Panel affirmed in part and remanded in part the ITC's determinations on remand. Certain Softwood Lumber Products from Canada, USA-CDA-2002-1904-07, Remand Decision of the Panel (circulated April 29, 2004). On June 10, 2004, the ITC again determined on remand that the U.S. softwood lumber industry was threatened with material injury by reason of dumped and subsidized subject imports. Softwood Lumber from Canada, Inv. Nos. 701-TA-414 and 731-TA-928 (Remand) (Second) (June 10, 2004). By decision issued on August 31, 2004, the Panel remanded with explicit instructions directing the ITC to reverse its affirmative determinations. Panel Decision III. On September 10, 2004, while the ITC contested the Panel's authority to reverse the ITC's decision in these circumstances, a majority of the ITC Commissioners issued a determination consistent with the Panel's decision. Third Remand. By decision issued on October 12, 2004, the Panel affirmed the Third Remand and subsequently directed the NAFTA Secretariat to issue a Notice of Final Panel Action on October 25, 2004.

Timken Notice

In its decision in Timken, the Federal Circuit held that, pursuant to 19 U.S.C. § 1516a(c)(1) and 1516a(e), the Department must publish notice of decision of the Court of International Trade (“CIT”) which is “not in harmony” with the Department's results. Timken, 893 F.2d at 340. This is true for CIT decisions which are “not in harmony” with the results of ITC injury, or threat of injury, determinations as well. Because NAFTA panels step into the shoes of the courts they are replacing, they must apply the law of the national court that would otherwise review the administrative determination. Therefore, we are publishing notice that the NAFTA Panel's October 25, 2004, Notice of Final Panel Action and its October 12, 2004, decision are “not in harmony” with the ITC's Final Injury Determinations. Publication of this notice fulfills the obligation imposed upon the Department by the decision in Timken. In addition, this notice will serve to suspend liquidation of entries of subject merchandise entered, or withdrawn from warehouse, for consumption on or after November 4, 2004, i.e., 10 days from the issuance of the Notice of Final Action, at the current cash deposit rate.