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