United States-Mexico-Canada Agreement: Rules of Procedure for Binational Panel Proceedings, Extraordinary Challenge Committee Proceedings, and Special Committee Proceedings

Federal RegisterFeb 16, 2023

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OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE

United States-Mexico-Canada Agreement: Rules of Procedure for Binational Panel Proceedings, Extraordinary Challenge Committee Proceedings, and Special Committee Proceedings

AGENCY:

Office of the United States Trade Representative (USTR).

ACTION:

Notice of rules of procedure for binational panel proceedings, extraordinary challenge committee proceedings, and special committee proceedings under the United States-Mexico-Canada Agreement (USMCA).

SUMMARY:

Canada, Mexico, and the United States have finalized the rules of procedure for binational panel proceedings, extraordinary challenge committee proceedings, and special committee proceedings under the USMCA.

DATES:

Applicable as of July 1, 2020, the date USMCA entered into force. These rules of procedure apply to all binational panel proceedings, extraordinary challenge committee proceedings, and special committee proceedings commenced under USMCA.

FOR FURTHER INFORMATION CONTACT:

For general questions about this notice, contact Associate General Counsel Philip Butler or Assistant General Counsel Thor Petersen at (202) 395-5804. For procedural matters involving cases under review, contact Vidya Desai, United States Secretary, USMCA Secretariat, Room 2061, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-5438; email:

usa@can-mex-usa-sec.org.

SUPPLEMENTARY INFORMATION:

Background

Article 10.12 of the USMCA establishes a mechanism for replacing judicial review of final antidumping and countervailing duty determinations involving imports from Canada, Mexico or the United States with review by independent binational panels. If requested, these panels will review final determinations to determine whether they are consistent with the antidumping or countervailing duty law of the importing country.

Annex 10-B.3 of the USMCA establishes a mechanism for the formation of an extraordinary challenge committee to review the appeal of Article 10.12 panel decisions under certain circumstances described in Article 10.12.13 of the USMCA. Article 10.13 of the USMCA establishes a mechanism for special committees to review certain procedural allegations described in Article 10.13.1 of the USMCA. Section 504 of the United States-Mexico-Canada Agreement Implementation Act, Public Law 116-113, 134 Stat. 11, amended United States law to implement Chapter Ten of the USMCA. See,

e.g.,

19 U.S.C. 4581 et. seq.; see also 19 CFR 356.1

et seq.

The USMCA Rules of Procedure for Article 10.12, Annex 10-B.3, and Article 10.13 are intended to give effect to the provisions of Chapter Ten of the USMCA by setting forth the procedures for commencing, conducting, and completing reviews. These rules are the result of negotiations among Canada, Mexico, and the United States in compliance with the terms of the USMCA, and are derived in large part from the rules established under Chapter 19 of the North American Free Trade Agreement. The English versions of the rules of procedure under Article 10.12 (Binational Panel Reviews) and

Article 10.13 (Special Committees) were adopted under Decision No. 2 of the Free Trade Commission, with French and Spanish versions adopted under Decision No. 4 of the Free Trade Commission. The English, French, and Spanish versions of the rules of procedure under Annex 10-B.3 (Extraordinary Challenge Committees) were adopted under Decision No. 4 of the Free Trade Commission.

The USMCA Article 10.12, Annex 10-B.3, and Article 10.13 rules are reproduced in the annex to this notice. These rules are also available at:

https://can-mex-usa-sec.org/.

Juan Millan,

Assistant United States Trade Representative for Monitoring and Enforcement, Office of the United States Trade Representative.

ANNEX

RULES OF PROCEDURE FOR ARTICLE 10.12 (BINATIONAL PANEL REVIEWS)

Part I: Initial Provisions and Definitions (Rules 1-10)

Application

1. These Rules are established in accordance with Article 10.12.14 (Review of Final Antidumping and Countervailing Duty Determinations) of the Agreement and apply to all panel reviews under Article 10.12 (Review of Final Antidumping and Countervailing Duty Determinations) of the Agreement. These Rules will be published in Canada in the

Canada Gazette,

in Mexico in the

Diario Oficial de la Federación,

and in the United States in the

Federal Register

Short Title

2. These Rules may be cited as the Article 10.12 Binational Panel Rules.

Statement of General Intent

3. These Rules are intended to give effect to the provisions of Chapter 10 (Trade Remedies) of the Agreement with respect to panel reviews conducted pursuant to Article 10.12 (Review of Final Antidumping and Countervailing Duty Determinations) of the Agreement and are designed to result in decisions of panels within 315 days after the commencement of the panel review. The purpose of these Rules is to secure the just, speedy, and inexpensive review of final determinations in accordance with the objectives and provisions of Article 10.12 (Review of Final Antidumping and Countervailing Duty Determinations) of the Agreement. If a procedural question arises that is not covered by these Rules, a panel may adopt the procedure to be followed in the particular case before it by analogy to these Rules or may refer for guidance to rules of procedure of a court that would otherwise have had jurisdiction in the importing country.

4. In the event of any inconsistency between these Rules and the Agreement, the Agreement shall prevail.

Definitions and Interpretation

5. For the purposes of these Rules,

Agreement

means the Agreement signed between Canada, Mexico, and the United States on November 30, 2018, as amended;

Code of Conduct

means the code of conduct established by the Parties pursuant to Article 10.17 (Code of Conduct) of the Agreement;

complainant

means a Party or interested person who files a Complaint pursuant to Rule 44;

counsel

means with respect to a panel review of a final determination made in:

(a) Canada, a person entitled to appear as counsel before the Federal Court of Canada;

(b) Mexico, a person entitled to appear as counsel before the

Tribunal Federal de Justicia Administrativa;

and

counsel of record

means a counsel referred to in subrule 26(1);

final determination

means, in the case of Canada, a definitive decision within the meaning of subsection 77.01(1) of the

Special Import Measures Act,

as amended;

first Request for Panel Review

means:

(a) if only one Request for Panel Review is filed for review of a final determination, that Request; and

(b) if more than one Request for Panel Review is filed for review of the same final determination, the Request that is filed first;

government information

means, with respect to a panel review of a final determination made in:

(a) Canada, information:

(i) the disclosure of which would be injurious to international relations or national defense or security,

(ii) that constitutes a confidence of the Queen's Privy Council for Canada, or

(iii) contained in government-to-government correspondence that is transmitted in confidence;

(b) Mexico, information the disclosure of which is prohibited under the laws and regulations of Mexico, including:

(i) data, statistics, and documents referring to national security and strategic activities for scientific and technological development, and

(ii) information contained in government-to-government correspondence that is transmitted in confidence, and

interested person

means a person who, pursuant to the laws of the country in which a final determination was made, would be entitled to appear and be represented in a judicial review of the final determination;

investigating authority

means the competent investigating authority, as defined in Article 10.8 (Definitions) of the Agreement, that issued the final determination subject to review and includes, in respect of the issuance, amendment, modification or revocation of a Proprietary Information Access Order, a person authorized by the investigating authority;

involved Secretariat

means the Section of the Secretariat located in the country of an involved Party;

legal holiday

with respect to a Party's Section of the Secretariat, means every Saturday, Sunday, and any other day designated by that Party as a holiday for the purposes of these Rules and notified by that Party to its Section of the Secretariat and by that Section to the other Sections of the Secretariat and the other Parties;

official publication

means, in the case of the Government of:

(a) Canada, the

Canada Gazette;

(b) Mexico, the

Diario Oficial de la Federación;

and

Federal Register

;

panel

means a binational panel established pursuant to Annex 10-B.1 (Establishment of Binational Panels) of the Agreement for the purpose of reviewing a final determination;

participant

means any of the following persons who files a Complaint pursuant to Rule 44 or a Notice of Appearance pursuant to Rule 45:

(a) a Party;

(b) an investigating authority; or

Party

means the Government of Canada, the Government of Mexico, or the Government of the United States;

person

means:

(a) an individual;

(b) a Party;

(d) a government of a province, state, or other political subdivision of the country of a Party;

(e) a department, agency, or body of a Party or of a government referred to in paragraph (d); or

(f) a partnership, corporation, or association;

pleading

means a Request for Panel Review, a Complaint, a Notice of Appearance, a Change of Service Address, a Notice of Motion, a Notice of

Change of Counsel of Record, a brief, or any other written submission filed by a participant;

President

means the President of the Canada Border Services Agency appointed under subsection 7(1) of the

Canada Border Services Agency Act,

as amended, and includes a person authorized to perform a power, duty, or function of the President under the

Special Import Measures Act,

as amended;

privileged information

means with respect to a panel review of a final determination made in:

(a) Canada, information of the investigating authority that is subject to solicitor-client privilege under the laws of Canada, or that constitutes part of the deliberative process with respect to the final determination, and with respect to which the privilege has not been waived;

(b) Mexico,

(i) information of the investigating authority that is subject to attorney-client privilege under the laws of Mexico, or

(ii) internal communications between officials of the Secretariat of Economy (

Secretaría de Economía

) in charge of antidumping and countervailing duty investigations or communications between those officials and other government officials, where those communications constitute part of the deliberative process with respect to the final determination; and

(c) the United States, information of the investigating authority that is subject to the attorney-client, attorney work product or government deliberative process privilege under the laws of the United States with respect to which the privilege has not been waived;

proof of service

means with respect to a panel review of a final determination made in:

(a) Canada or Mexico,

(i) an affidavit of service stating by whom the document was served, the date on which it was served, where it was served, and the manner of service, or

(ii) an acknowledgement of service by counsel for a participant stating by whom the document was served, the date on which it was served and the manner of service, and, if the acknowledgement is signed by a person other than the counsel, the name of that person followed by a statement that the person is signing as agent for the counsel; and

(b) the United States, a certificate of service in the form of a statement of the date and manner of service and of the name of the person served, signed by the person who made service;

proprietary information

means with respect to a panel review of a final determination made in:

(a) Canada, information referred to in subsection 84(3) of the

Special Import Measures Act,

as amended, or subsection 45(3) of the

Canadian International Trade Tribunal Act,

as amended, with respect to which the person who designated or submitted the information has not withdrawn the person's claim as to the confidentiality of the information;

(b) Mexico,

información confidencial,

as defined under article 80 of the

Ley de Comercio Exterior

and its regulations; and

Tariff Act of 1930,

as amended, and any regulations made under that Act;

Proprietary Information Access Application

means with respect to a panel review of a final determination made in:

(a) Canada, a disclosure undertaking in the prescribed form, which form,

(i) in respect of a final determination by the President, is available from the President, and

(ii) in respect of a final determination by the Tribunal, is available from the Tribunal;

(b) Mexico, a disclosure undertaking in the prescribed form, which form is available from the Secretariat of Economy (

Secretaría de Economía

); and

(i) in respect of a final determination by the International Trade Administration of the United States Department of Commerce, in a form prescribed by, and available from, the International Trade Administration of the United States Department of Commerce, and

(ii) in respect of a final determination by the United States International Trade Commission, in a form prescribed by, and available from, the United States International Trade Commission;

Proprietary Information Access Order

means in the case of:

(a) Canada, a Disclosure Order issued by the President or the Tribunal pursuant to a Proprietary Information Access Application;

(b) Mexico, a Disclosure Order issued by the Secretariat of Economy (

Secretaría de Economía

) pursuant to a Proprietary Information Access Application; and

(c) the United States, a Protective Order issued by the International Trade Administration of the United States Department of Commerce or the United States International Trade Commission pursuant to a Proprietary Information Access Application;

responsible Secretariat

means the Section of the Secretariat located in the country in which the final determination under review was made;

responsible Secretary

means the Secretary of the responsible Secretariat;

Secretariat

means the Secretariat established pursuant to Article 30.6 (The Secretariat) of the Agreement;

Secretary

means the Secretary of the United States Section of the Secretariat, the Secretary of the Mexican Section of the Secretariat, or the Secretary of the Canadian Section of the Secretariat, and includes any person authorized to act on behalf of that Secretary;

service address

means:

(a) with respect to a Party, the address filed with the Secretariat as the service address of the Party, including an electronic mail address submitted with that address;

(b) with respect to a participant other than a Party, the address of the counsel of record for the person, including an electronic mail address submitted with that address, or if the person is not represented by counsel, the address set out by the participant in a Request for Panel Review, Complaint or Notice of Appearance as the address at which the participant may be served, including an electronic mail address submitted with that address; or

(c) if a Change of Service Address has been filed by a Party or participant, the address set out as the new service address in that form, including an electronic mail address submitted with that address;

service list

means, with respect to a panel review,

(a) if the final determination was made in Canada, a list comprising the other involved Party and,

(i) in the case of a final determination made by the President, persons named on the list maintained by the President who participated in the proceedings before the President and who were exporters or importers of goods of the country of the other involved Party or complainants referred to in section 34 of the

Special Import Measures Act,

as amended, and

(ii) in the case of a final determination made by the Tribunal, persons named on the list maintained by the Tribunal of parties in the proceedings before the Tribunal who were exporters or importers of goods of the country of the other involved Party, complainants referred to in section 31 of the

Special Import Measures Act,

as amended, or other domestic parties whose interest in

the findings of the Tribunal is with respect to goods of the country of the other involved Party; and

(b) if the final determination was made in Mexico or the United States, the list, maintained by the investigating authority of persons who have been served in the proceedings leading to the final determination; and

Tribunal

means the Canadian International Trade Tribunal or its successor and includes any person authorized to act on its behalf.

6. The definitions set forth in Article 10.8 (Definitions) of the Agreement are hereby incorporated into these Rules.

7. When these Rules require that notice be given, it shall be given in writing.

Code of Conduct

8. Candidates being considered for appointment to a panel, panelists, and their assistants and staff, must comply with the Code of Conduct established under Article 10.17 (Code of Conduct) of the Agreement.

9. The responsible Secretariat shall provide a copy of the Code of Conduct to each candidate being considered for appointment to serve as a member of a panel, and to each individual selected to serve as a panelist as well as to their assistants and staff.

10. If a participant believes that a panelist, assistant, or staff to a panelist is in violation of the Code of Conduct, the participant shall immediately notify the responsible Secretary in writing of the alleged violation. The responsible Secretary shall promptly notify the other involved Secretary and the involved Parties of the allegations.

Part II: General (Rules 11-37)

Duration and Scope of Panel Review

11. A panel review commences on the day on which a first Request for Panel Review is filed with the Secretariat and terminates on the day on which a Notice of Completion of Panel Review is effective.

12. A panel review shall be limited to:

(a) the allegations of error of fact or law, including challenges to the jurisdiction of the investigating authority, that are set out in the Complaints filed in the panel review; and

(b) procedural and substantive defenses raised in the panel review.

Responsibility of the Secretariat

13. The normal business hours of the Secretariat, during which the offices of the Secretariat shall be open to the public, shall be from 9:00 a.m. to 5:00 p.m. on each weekday other than, in the case of the:

(a) United States Section of the Secretariat, legal holidays of that Section;

(b) Canadian Section of the Secretariat, legal holidays of that Section; and

14. The responsible Secretary shall provide administrative support for each panel review and shall make the arrangements necessary for the oral proceedings and meetings of each panel, including, if required, interpreters to provide simultaneous translation.

15. (1) Each Secretary must maintain a file for each panel review. Subject to subrules (3) and (4), the file must be comprised of either the original or a copy of all documents filed, whether or not filed in accordance with these Rules, in the panel review.

(2) The file number assigned to a first Request for Panel Review must be the Secretariat file number for all documents filed or issued in that panel review. All documents filed must be stamped by the Secretariat to show the date and time of receipt.

(3) If, after notification of the selection of a panel pursuant to Rule 47, a document is filed that is not provided for in these Rules or that is not in accordance with the Rules, the responsible Secretary may refer the unauthorized filing to the chair of the Panel for instructions, provided that the authority has been delegated by the Panel to its chair pursuant to subrule 22(2).

(4) On a referral referred to in subrule (3), the chair may instruct the responsible Secretary to:

(a) retain the document in the file, without prejudice to a motion to strike that document; or

(b) return the document to the person who filed the document, without prejudice to a motion for leave to file the document.

16. (1) The responsible Secretary shall forward to the other involved Secretary all orders and decisions issued by the panel. The responsible Secretary shall also forward to the other involved Secretary a copy of all documents filed in the office of the responsible Secretary that are not clearly marked as privileged or proprietary pursuant to subrules 48(2)(b) and 60(1)(a).

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

17. If under these Rules a responsible Secretary is required to publish a notice or other document in the official publications of the involved Parties, the responsible Secretary and the other involved Secretary shall cause the notice or other document to be published in the official publication of the country in which that Section of the Secretariat is located.

18. (1) Each Secretary and every member of the staff of the Secretariat shall, before taking up duties, file a Proprietary Information Access Application with each of the President, the Tribunal, the Secretariat of Economy (

Secretaría de Economía

), the International Trade Administration of the United States Department of Commerce, and the United States International Trade Commission.

(2) If a Secretary or a member of the staff of the Secretariat files a Proprietary Information Access Application in accordance with subrule (1), the appropriate investigating authority shall issue to the Secretary or to the member a Proprietary Information Access Order.

19. (1) The responsible Secretary shall file either physically with the investigating authority one original and any additional copies required, or electronically with the investigating authority, of every Proprietary Information Access Application and any amendments or modifications thereto, filed by a panelist, assistant to a panelist, court reporter, interpreter, or translator pursuant to Rule 51.

(2) The responsible Secretary shall ensure that every panelist, assistant to a panelist, court reporter, interpreter, and translator, before taking up duties in a panel review, files with the responsible Secretariat a copy of a Proprietary Information Access Order.

20. If a document containing proprietary information or privileged information is filed with the responsible Secretariat, each involved Secretary shall ensure that:

(a) the document is stored, maintained, handled, and distributed in accordance with the terms of any applicable Proprietary Information Access Order;

(b) the inner wrapper or cover sheet of the document is clearly marked to indicate that it contains proprietary information or privileged information; and

(c) access to the document is limited to officials of, and counsel for, the investigating authority whose final determination is under review, and

(i) in the case of proprietary information, the person who submitted the proprietary information to the investigating authority or counsel for that person and any persons who have been granted access to the information

under a Proprietary Information Access Order with respect to the document, and

(ii) in the case of privileged information filed in a panel review of a final determination made in the United States or Canada, persons with respect to whom the panel has ordered disclosure of the privileged information under Rule 56, if the persons have filed with the responsible Secretariat a Proprietary Information Access Order with respect to the document.

21. (1) Each Secretary shall permit access by any person to the information in the file in a panel review that is not proprietary information or privileged information and shall provide copies of that information on request and payment of an appropriate fee.

(2) Each Secretary shall, in accordance with subrule 20(c) and the terms of the applicable Proprietary Information Access Order or order of the panel,

(a) permit access to proprietary information or privileged information in the file of a panel review; and

(b) on payment of an appropriate fee, provide a copy of the information referred to in subrule (2)(a).

(3) No document filed in a panel review shall be removed from the offices of the Secretariat except in the ordinary course of the business of the Secretariat or pursuant to the direction of a panel.

Internal Functioning of Panels

22. (1) A panel may adopt its own internal procedures, not inconsistent with these Rules, for routine administrative matters.

(2) A panel may delegate to its chair,

(a) the authority to accept or reject filings in accordance with subrule 15(4); and

(b) the authority to grant motions consented to by all participants, other than a motion filed pursuant to Rule 25 or Rule 56, a motion for remand of a final determination, or a motion that is inconsistent with an order or decision previously made by the panel.

(3) A decision of the chair referred to in subrule (2) shall be issued as an order of the panel.

(4) Subject to subrule 31(b), meetings of a panel may be conducted by means of a telephone or video conference call.

23. Only panelists may take part in the deliberations of a panel, which shall take place in private and remain secret. Staff of the involved Secretariats and assistants to panelists may be present by permission of the panel.

Computation of Time

24. (1) In computing any time period fixed in these Rules or by an order or decision of a panel, the day from which the time period begins to run shall be excluded and, subject to subrule (2), the last day of the time period shall be included.

(2) If the last day of a time period computed in accordance with subrule (1) falls on a legal holiday of the responsible Secretariat or on any other day on which the offices of that Section are closed by order of the government or because of unforeseen circumstances outside that Party's control, that day and any other legal holidays of the responsible Secretariat immediately following that day shall be excluded from the computation.

25. (1) A panel may extend any time period fixed in these Rules if:

(a) adherence to the time period would result in unfairness or prejudice to a participant or the breach of a general legal principle of the country in which the final determination was made;

(b) the time period is extended only to the extent necessary to avoid the unfairness, prejudice, or breach;

(d) in fixing the extension, the panel takes into account the intent of the Rules to secure just, speedy and inexpensive reviews of final determinations.

(2) A participant may request an extension of time by filing a Notice of Motion no later than the tenth day prior to the last day of the time period. Any response to the Notice of Motion shall be filed no later than seven days after the Notice of Motion is filed.

(3) A participant who fails to request an extension of time pursuant to subrule (2) may file a Notice of Motion for leave to file out of time, which shall include reasons why additional time is required and why the participant has failed to comply with the provisions of subrule (2).

(4) The panel will normally rule on a motion under subrule (3) before the last day of the time period which is the subject of the motion.

Counsel of Record

26. (1) A counsel who signs a document filed pursuant to these Rules on behalf of a participant shall be the counsel of record for the participant from the date of filing until a change is effected in accordance with subrule (2).

(2) A participant may change its counsel of record by filing with the responsible Secretariat a Notice of Change of Counsel of Record signed by the new counsel, together with proof of service on the former counsel and other participants.

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

Filing, Service, and Communications

27. (1) Subject to subrule 50(1), Rule 51 and subrules 54(1), 56(3) and 77(2)(a), a document is filed with the Secretariat when the responsible Secretariat receives the document, during its normal business hours and within the time period fixed for filing, physically, with one original and two copies, or when the document is filed by electronic means.

(2) The responsible Secretariat shall also acknowledge receipt physically or electronically, to the party filing the document.

(3) Acknowledgement pursuant to subrule (2) does not constitute a waiver of any time period fixed for filing or an acknowledgement that the document has been filed in accordance with these Rules.

28. The responsible Secretary shall be responsible for the service of the following, which may be satisfied through an electronic notification if the involved Parties have agreed to an electronic filing platform that is in use by the responsible Secretariat:

(a) Notices of Intent to Commence Judicial Review and Complaints on each Party;

(b) Requests for Panel Review on the Parties, the investigating authority, and the persons listed on the service list; and

(c) Notices of Appearance, Proprietary Information Access Orders granted to panelists, assistants to panelists, court reporters, interpreter(s), or translators, and any amendments or modifications thereto or notices of revocation thereof, decisions and orders of a panel, Notices of Final Panel Action, and Notices of Completion of Panel Review on the participants.

29. (1) Subject to subrules (6) and (7), all documents filed by a participant, other than the administrative record, any supplementary remand record and any document required by Rule 28 to be served by the responsible Secretary, shall be served by the participant on the counsel of record of each of the other participants, or if a participant is not represented by counsel, on the participant.

(2) If an electronic filing platform agreed upon by the involved Parties is used for filing, electronic notification by the filing platform shall satisfy the service requirements of this Rule.

(3) A proof of service shall appear on, or be affixed to, all documents referred to in subrule (1).

(4) If a document is served by expedited delivery courier or expedited mail service, the date of service set out in the affidavit of service or certificate of service shall be the day on which the document is consigned to the expedited delivery courier or expedited mail service.

(5) If a document is served electronically, the date of service shall be the day on which the document is sent by the sender.

(6) A document containing proprietary information or privileged information shall be filed and served under seal in accordance with Rules 48 and 60(1)(a), and shall be served only on:

(a) the investigating authority; and

(b) participants who have been granted access to the proprietary information or privileged information under a Proprietary Information Access Order or an order of the panel.

(7) A complainant shall serve a Complaint on the investigating authority and on all persons listed on the service list.

30. Subject to subrule 31(a), a document may be served by:

(a) mailing or delivering a copy of the document to the service address of the participant by expedited delivery courier or expedited mail service;

(b) transmitting a copy of the document to the electronic service address of the participant;

(d) any means, including the use of an electronic filing platform agreed upon by the involved Parties, that the responsible Secretariat, in consultation with participants, may direct.

31. If proprietary information or privileged information is disclosed in a panel review to a person pursuant to a Proprietary Information Access Order, the person shall not:

(a) file, serve, or otherwise communicate the proprietary information or privileged information by unsecure electronic means except as authorized by the terms of that Order; or

(b) communicate the proprietary information or privileged information by telephone.

32. Service on an investigating authority does not constitute service on a Party and service on a Party does not constitute service on an investigating authority.

Pleadings and Simultaneous Translation of Panel Reviews in Canada

33. Rules 34 to 36 apply with respect to a panel review of a final determination made in Canada.

34. A person or panelist may use either English or French in a document or oral proceeding.

35. (1) Subject to subrule (2), any order or decision including the reasons for it, issued by a panel, shall be made available simultaneously in both English and French if:

(a) in the opinion of the panel, the order or decision is in respect of a question of law of general public interest or importance; or

(b) the proceedings leading to the issuance of the order or decision were conducted in whole or in part in English and French.

(2) If an order or decision,

(a) issued by a panel is not required by subrule (1) to be made available simultaneously in English and French; or

(b) is required by subrule (1)(a) to be made available simultaneously in both English and French but the panel is of the opinion that to make the order or decision available simultaneously in both English and French would occasion a delay prejudicial to the public interest or result in injustice or hardship to any participant; the order or decision, including the reasons therefor, shall be issued in the first instance in either English or French and thereafter at the earliest possible time in the other language, each version to be effective from the time the first version is effective.

(3) Nothing in subrule (1) or (2) shall be construed as prohibiting the oral delivery in either English or French of any order or decision or any reasons therefor.

(4) No order or decision is invalid by reason only that it was not made or issued in both English and French.

36. (1) Any oral proceeding conducted in both English and French shall be translated simultaneously.

(2) If a participant requests simultaneous translation of oral proceedings in a panel review, the request shall be made as early as possible in the panel review and preferably at the time of filing a Complaint or a Notice of Appearance.

(3) If the chair of a panel is of the opinion that there is a public interest in the panel review, the chair may direct the responsible Secretary to arrange for simultaneous translation of any of the oral proceedings in the panel review.

Costs of Participation, Panel Remuneration, and Expenses

37. (1) Each participant shall bear the costs of, and those incidental to, its own participation in a panel review.

(2) The involved Parties shall bear equally the remuneration and expenses of panelists selected under Annex 10-B.1 (Establishment of Binational Panels), and of their assistants, and all administrative expenses of the panel.

(3) Unless the involved Parties agree otherwise, remuneration for panelists shall be paid at the rate for non-governmental panelists used by the WTO on the date the Request for Panel Review is made pursuant to Article 10.12 (Review of Final Antidumping and Countervailing Duty Determinations).

(4) Unless the involved Parties agree otherwise, travel expenses shall be paid at the Daily Subsistence Allowance rate for the location of the hearing established by the United Nations International Civil Service Commission on the date a Request for Panel Review is made pursuant to Article 10.12 (Review of Final Antidumping and Countervailing Duty Determinations).

(5) Each panelist may hire one assistant to provide research, translation, or interpretation support, unless a panelist requires an additional assistant and the involved Parties agree that, due to exceptional circumstances, the panelist should be permitted to hire an additional assistant. Each assistant to a panelist shall be paid at a rate of one-fifth the rate for a panelist.

(6) The expenses authorized for a panel established under Annex 10-B.1 (Establishment of Binational Panels), shall be as follows:

(a) travel expenses: include the transportation costs of the panelists and assistants, their accommodations and meals, as well as related taxes and insurance. Travel arrangements shall be made and travel expenses reimbursed, in accordance with the administrative guidelines applied by the responsible Secretariat; and

(b) administrative expenses: include, among others, telephone calls, courier services, fax, stationery, rent of locations used for hearings and deliberations, interpreter services, court reporters, or any other person or service contracted by the responsible Secretariat to support the proceeding.

(7) Each panelist and assistant shall keep and render a final account of his or her time and expenses to the responsible Secretariat, and the panel shall keep and render a final account to the responsible Secretariat of its administrative expenses. Each panelist and assistant shall submit this account, including relevant supporting documentation, such as invoices, in accordance with the administrative guidelines of the responsible Secretariat. A panelist or assistant may submit requests for payment of remuneration or reimbursement for expenses during the

proceeding on a recommended quarterly basis throughout an ongoing dispute. Panelists and assistants should submit any final requests for payment of remuneration or reimbursement within 60 days of the filing of a Notice of Completion of Panel Review.

(8) All requests for payment shall be subject to review by the responsible Secretariat. The responsible Secretariat shall make payments for the remuneration of panelists and assistants, and for expenses in accordance with the administrative guidelines applied by the responsible Secretariat, using resources provided equally by the involved Parties, and in coordination with the involved Parties. No responsible Secretariat shall be obligated to pay any remuneration or expense in connection with a panel proceeding prior to receiving the contributions of the involved Parties.

(9) The responsible Secretariat shall submit to the involved Parties a final report on payments made in connection with a dispute. On request of an involved Party, the responsible Secretariat shall submit to the involved Parties a report of payments made to date at any time during the panel proceedings.

(10) In case of resignation or removal of a panelist or assistant, or if a Panel issues an Order dismissing or terminating a proceeding, the responsible Secretariat will make payment of the remuneration and expenses owed up until the date of resignation or removal of the panelist or assistant, or the date of the Order of dismissal or termination, using resources provided equally by the involved Parties. A panelist's or assistant's final account of time or expenses must follow the procedures in paragraph 7 and should be submitted within 60 days of the date of their resignation, or removal, or of an Order dismissing or terminating the panel proceeding.

Part III: Commencement of Panel Review (Rules 38-46)

Notice of Intent To Commence Judicial Review

38. (1) If an interested person intends to commence judicial review of a final determination, the interested person shall,

(a) if the final determination was made in Canada, publish a notice to that effect in the

Canada Gazette

and serve a Notice of Intent to Commence Judicial Review on both involved Secretaries and on all persons listed on the service list; and

(b) if the final determination was made in Mexico or the United States, no later than 20 days after the date referred to in subrule (3)(b) or (c), serve a Notice of Intent to Commence Judicial Review on:

(i) both involved Secretaries,

(ii) the investigating authority, and

(iii) all persons listed on the service list.

(2) If the final determination referred to in subrule (1) was made in Canada, the Secretary of the Canadian Section of the Secretariat shall serve a copy of the Notice of Intent to Commence Judicial Review on the investigating authority.

(3) Every Notice of Intent to Commence Judicial Review referred to in subrule (1) must include the following information (model form provided in the Schedule):

(a) the information set out in subrules 59(1)(c) to (f);

(b) the title of the final determination for which judicial review is sought, the investigating authority that issued the final determination, the file number assigned by the investigating authority, and, if the final determination was published in an official publication, the appropriate citation, including the date of publication; and

(c) the date on which the notice of the final determination was received by the other Party if the final determination was not published in an official publication.

Request for Panel Review

39. (1) A Request for Panel Review shall be made in accordance with the requirements of:

(a) section 77.011 or 96.21 of the

Special Import Measures Act,

as amended, and any regulations made thereunder;

(b) section 516A of the

Tariff Act of 1930,

as amended, and any regulations made thereunder;

United States-Mexico-Canada Implementation Act

and any regulations made thereunder; or

(d) articles 97 and 98 of the

Ley de Comercio Exterior

and its regulations.

(2) A Request for Panel Review must contain the following information (model form provided in the Schedule):

(a) the information set out in subrule 59(1);

(b) the title of the final determination for which panel review is requested, the investigating authority that issued the final determination, the file number assigned by the investigating authority, and, if the final determination was published in an official publication, the appropriate citation;

(c) the date on which the notice of the final determination was received by the other Party if the final determination was not published in an official publication;

(d) the service list, as defined in Rule 5.

40. (1) On receipt of a first Request for Panel Review, the responsible Secretary shall:

(a) forthwith forward a copy of the Request to the other involved Secretary;

(b) forthwith inform the other involved Secretary of the Secretariat file number; and

(c) serve a copy of the first Request for Panel Review on the persons listed on the service list together with a statement setting out the date on which the Request was filed and stating that:

(i) a Party or interested person may challenge the final determination in whole or in part by filing a Complaint in accordance with Rule 44 no later than 30 days after the filing of the first Request for Panel Review,

(ii) a Party, an investigating authority, or other interested person who does not file a Complaint but who intends to participate in the panel review must file a Notice of Appearance in accordance with Rule 45 no later than 45 days after the filing of the first Request for Panel Review, and

(iii) the panel review will be limited to the allegations of error of fact or law, including challenges to the jurisdiction of the investigating authority, that are set out in the Complaints filed in the panel review and to the procedural and substantive defenses raised in the panel review.

(2) On the filing of a first Request for Panel Review, the responsible Secretary shall forthwith publish a notice of that Request in the official publications of the involved Parties, stating that a Request for Panel Review has been received and specifying the date on which the Request was filed, the final determination for which panel review is requested and the information set out in subrule (1)(c).

Joint Panel Reviews

41. (1) Subject to Rule 42, if a panel is established to review a final determination made under,

(a) paragraph 41(1)(b) of the

Special Import Measures Act,

as amended, with respect to particular goods of the United States or Mexico and a Request for Panel Review of a final determination made under subsection 43(1) of that Act with respect to those goods is filed; or

(b) section 705(a) or 735(a) of the

Tariff Act of 1930,

as amended, with respect to particular goods of Canada or Mexico and a Request for Panel Review of a final determination made under section 705(b) or 735(b) of that Act with

respect to those goods is filed; no later than 10 days after that Request is filed, a participant in the former panel review, the investigating authority in the latter panel review, or an interested person listed in the service list of the latter panel review may file a motion in the former panel review requesting that both final determinations be reviewed jointly by one panel.

(2) Any participant in the former panel review, the investigating authority in the latter panel review, or an interested person listed in the service list of the latter panel review who certifies an intention to become a participant in the latter panel review may, no later than 10 days after a motion is filed under subrule (1), file an objection to the motion, in which case the motion shall be deemed to be denied and separate panel reviews shall be held.

42. (1) If a panel is established to review a final determination made under paragraph 41(1)(b) of the

Special Import Measures Act,

as amended, that applies with respect to particular goods of the United States or Mexico and a Request for Panel Review of a negative final determination made under subsection 43(1) of that Act with respect to those goods is filed, the final determinations shall be reviewed jointly by one panel.

(2) If a panel is established to review a final determination made under section 705(a) or 735(a) of the

Tariff Act of 1930,

as amended, that applies with respect to particular goods of Canada or Mexico and a Request for Panel Review of a negative final determination made under section 705(b) or 735(b) of that Act with respect to those goods is filed, the final determinations shall be reviewed jointly by one panel.

43. (1) Subject to subrules (2) and (3), if final determinations are reviewed jointly pursuant to Rule 41 or 42, the time periods fixed under these Rules for the review of the final determination made under subsection 43(1) of the

Special Import Measures Act,

as amended, or section 705(b) or 735(b) of the

Tariff Act of 1930,

as amended, shall apply to the joint review, commencing with the date fixed for filing briefs pursuant to Rule 61.

(2) Unless otherwise ordered by a panel as a result of a motion under subrule (3), if final determinations are reviewed jointly pursuant to Rule 42, the panel shall issue its decision with respect to the final determination made under subsection 43(1) of the

Special Import Measures Act,

as amended, or section 705(b) or 735(b) of the

Tariff Act of 1930,

as amended, and if the panel remands the final determination to the investigating authority and the Determination on Remand is affirmative, the panel shall thereafter issue its decision with respect to the final determination made under paragraph 41(1)(b) of the

Special Import Measures Act,

as amended, or section 705(a) or 735(a) of the

Tariff Act of 1930,

as amended.

(3) If the final determinations are reviewed jointly pursuant to Rule 41 or 42, a participant may, unilaterally or with the consent of the other participants, request by motion that time periods, other than the time periods referred to in subrule (1), be fixed for the filing of pleadings, oral proceedings, decisions and other matters.

(4) A Notice of Motion pursuant to subrule (3) must be filed no later than 10 days after the date fixed for filing Notices of Appearance in the review of the final determination made under subsection 43(1) of the

Special Import Measures Act,

as amended, or section 705(b) or 735(b) of the

Tariff Act of 1930,

as amended.

(5) Unless otherwise ordered by a panel, if the panel has not issued a ruling on a motion filed pursuant to subrule (3) no later than 30 days after the filing of the Notice of Motion, the motion shall be deemed denied.

Complaint

44. (1) Subject to subrule (3), any interested person who intends to make an allegation of an error of fact or law, including a challenge to the jurisdiction of the investigating authority, with respect to a final determination, shall file with the responsible Secretariat, no later than 30 days after the filing of a first Request for Panel Review of the final determination, a Complaint, together with proof of service on the investigating authority and on all persons listed on the service list.

(2) Every Complaint referred to in subrule (1) must contain the following information (model form provided in the Schedule):

(a) the information set out in subrule 59(1);

(b) the precise nature of the Complaint, including the applicable standard of review and the allegations of errors of fact or law, including challenges to the jurisdiction of the investigating authority;

(d) if the final determination was made in Canada, a statement as to whether the complainant,

(i) intends to use English or French in pleadings and oral proceedings before the panel, and

(ii) requests simultaneous translation of any oral proceedings.

(3) Only an interested person who would otherwise be entitled to commence proceedings for judicial review of the final determination may file a Complaint.

(4) Subject to subrule (5), an amended Complaint must be filed no later than 5 days before the expiration of the time period for filing a Notice of Appearance pursuant to Rule 45.

(5) An amended Complaint may, with leave of the panel, be filed after the time limit set out in subrule (4) but no later than 20 days before the expiration of the time period for filing briefs pursuant to subrule 61(1).

(6) Leave to file an amended Complaint may be requested of the panel by the filing of a Notice of Motion for leave to file an amended Complaint accompanied by the proposed amended Complaint.

(7) If the panel does not grant a motion referred to in subrule (6) within the time period for filing briefs pursuant to subrule 61(1), the motion shall be deemed to be denied.

Notice of Appearance

45. (1) No later than 45 days after the filing of a first Request for Panel Review of a final determination, the investigating authority and any other interested person who proposes to participate in the panel review and who has not filed a Complaint in the panel review must file with the responsible Secretariat a Notice of Appearance containing the following information (model form provided in the Schedule):

(a) the information set out in subrule 59(1);

(b) a statement as to the basis for the person's claim of entitlement to file a Notice of Appearance under this rule;

(c) in the case of a Notice of Appearance filed by the investigating authority, any admissions with respect to the allegations set out in the Complaints;

(d) a statement as to whether appearance is made:

(i) in support of some or all of the allegations set out in a Complaint under subrule 44(2)(b),

(ii) in opposition to some or all of the allegations set out in a Complaint under subrule 44(2)(b), or

(iii) in support of some of the allegations set out in a Complaint under subrule 44(2)(b) and in opposition to some of the allegations set out in a Complaint under subrule 44(2)(b); and

(e) if the final determination was made in Canada, a statement as to

whether the person filing the Notice of Appearance:

(i) intends to use English or French in pleadings and oral proceedings before the panel, and

(ii) requests simultaneous translation of oral proceedings.

(2) Any complainant who intends to appear in opposition to allegations set out in a Complaint under subrule 44(2)(b) shall file a Notice of Appearance containing the statements referred to in subrules (1)(b) and (1)(d)(ii) or (iii).

Record for Review

46. (1) The investigating authority whose final determination is under review shall, no later than 15 days after the expiration of the time period fixed for filing a Notice of Appearance, file with the responsible Secretariat a copy of:

(a) the final determination, including reasons for the final determination;

(b) an Index comprised of a descriptive list of all items contained in the administrative record, together with proof of service of the Index on all participants; and

(2) An Index referred to in subrule (1)(b) must, if applicable, identify those items that contain proprietary information, privileged information, or government information by a statement to that effect.

(3) Where a document containing proprietary information is filed, it must be filed under seal in accordance with Rule 48.

(4) No privileged information may be filed with the responsible Secretariat unless the investigating authority waives the privilege and voluntarily files the information, or the information is filed pursuant to an order of a panel.

(5) No government information may be filed with the responsible Secretariat unless the investigating authority, after having reviewed the government information and, if applicable, after having pursued appropriate review procedures, determines that the information may be disclosed.

Part IV: Panels (Rule 47)

Announcement of Panel

47. On the completion of the selection of a panel, the responsible Secretary shall notify the participants and the other involved Secretary of the names of the panelists.

Part V: Proprietary Information and Privileged Information (Rules 48-58)

Filing or Service Under Seal

48. (1) If, under these Rules, a document containing proprietary information or privileged information is required to be filed under seal with the Secretariat or is required to be served under seal, the document shall be filed or served in accordance with this Rule and, if the document is a pleading, in accordance with Rule 60.

(2) A document filed or served under seal shall be:

(a) separate from all other documents;

(b) clearly marked:

(i) with respect to a panel review of a final determination made in Canada,

(A) in the case of a document containing proprietary information, “Proprietary”, “Confidential”, “De nature exclusive” or “Confidentiel”, and

(B) in the case of a document containing privileged information, “Privileged” or “Protégé”,

(ii) with respect to a panel review of a final determination made in Mexico,

(A) in the case of a document containing proprietary information, “Confidencial”, and

(B) in the case of a document containing privileged information, “Privilegiada”, and

(iii) with respect to a panel review of a final determination made in the United States,

(A) in the case of a document containing proprietary information, “Proprietary”, and

(B) in the case of a document containing privileged information, “Privileged”; and

(i) an opaque inner wrapper and an opaque outer wrapper, if filed or served physically, or

(ii) a cover sheet, if filed or served electronically.

(3) An inner wrapper or cover sheet referred to in subrule (2)(c) shall indicate

(a) that proprietary information or privileged information is enclosed, as the case may be; and

(b) the Secretariat file number of the panel review.

49. Filing or service of proprietary information or privileged information with the Secretariat does not constitute a waiver of the designation of the information as proprietary information or privileged information.

Proprietary Information Access Orders

50. (1) A counsel of record, or a professional retained by, or under the control or direction of, a counsel of record, who wishes disclosure of proprietary information in a panel review must file a Proprietary Information Access Application with respect to the proprietary information as follows:

(a) with the responsible Secretariat, two copies; and

(b) with the investigating authority, one original and any additional copies that the investigating authority requires.

(2) A Proprietary Information Access Application referred to in subrule (1) shall be served

(a) if the Proprietary Information Access Application is filed before the expiration of the time period fixed for filing a Notice of Appearance in the panel review, on the persons listed in the service list; and

(b) in any other case, on all participants other than the investigating authority, in accordance with subrule 29(1).

(3) Electronic means may be used to satisfy the service and filing requirements of subrules (1) and (2).

For greater certainty, for electronic filings with respect to subrule 50(1)(b), the Mexican investigating authority may verify the authenticity of the application and the documents submitted.

51. (1) Every panelist, assistant to a panelist, court reporter, interpreter, and translator shall, before taking up duties in a panel review, physically or electronically

provide to the responsible Secretary a Proprietary Information Access Application.

For greater certainty, for electronic filings, the Mexican Secretariat will verify the authenticity of the application and the documents submitted.

(2) A panelist, assistant to a panelist, court reporter, interpreter, or translator who amends or modifies a Proprietary Information Access Application shall provide the responsible Secretariat with a copy of the amendment or modification.

(3) If the investigating authority receives, pursuant to subrule 19(1), a Proprietary Information Access Application or an amendment or modification thereto, the investigating authority shall issue a Proprietary Information Access Order, amendment or modification accordingly.

52. The investigating authority shall, no later than 30 days after a Proprietary Information Access Application is filed in accordance with subrule 50(1), serve on the person who filed the Proprietary Information Access Application,

(a) a Proprietary Information Access Order; or

(b) a notification in writing setting out the reasons why a Proprietary Information Access Order is not issued.

53. (1) If an investigating authority,

(a) refuses to issue a Proprietary Information Access Order to a counsel

of record or to a professional retained by, or under the control or direction of, a counsel of record; or

(b) issues a Proprietary Information Access Order with terms unacceptable to the counsel of record;

the counsel of record may file with the responsible Secretariat a Notice of Motion requesting that the panel review these decisions of the investigating authority.

(2) If, after consideration of any response made by the investigating authority referred to in subrule (1), the panel decides that a Proprietary Information Access Order should be issued or that the terms of a Proprietary Information Access Order should be modified or amended, the panel shall so notify counsel for the investigating authority.

(3) If the final determination was made in the United States and the investigating authority fails to comply with the notification referred to in subrule (2), the panel may issue any order that is just in the circumstances, including an order refusing to permit the investigating authority to make certain arguments in support of its case or striking certain arguments from its pleadings.

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

(2) If a Proprietary Information Access Order is revoked, amended, or modified by the investigating authority, the investigating authority shall provide to the responsible Secretariat and to all participants a copy of the Notice of Revocation, amendment, or modification.

55. If a Proprietary Information Access Order is issued to a person, the person is entitled,

(a) to access to the document(s) containing the proprietary information; and

(b) if the person is a counsel of record, to a copy of the document(s) containing the proprietary information, on payment of an appropriate fee, and to service of pleadings containing the proprietary information.

Privileged Information

56. (1) A Notice of Motion for disclosure of a document in the administrative record identified as containing privileged information shall set out,

(a) the reasons why disclosure of the document is necessary to the case of the participant filing the Notice of Motion; and

(b) a statement of any point of law or legal authority relied on, together with a concise argument in support of disclosure.

(2) No later than 10 days after a Notice of Motion referred to in subrule (1) is filed, the investigating authority shall, if it intends to respond, file the following in response:

(a) an affidavit of an official of the investigating authority stating that, since the filing of the Notice of Motion, the official has examined the document and has determined that disclosure of the document would constitute disclosure of privileged information; and

(b) a statement of any point of law or legal authority relied on, together with a concise argument in support of non-disclosure.

(3) After having reviewed the Notice of Motion referred to in subrule (1) and any response filed under subrule (2), the panel may order:

(a) that the document shall not be disclosed; or

(b) that the investigating authority file two copies of the document under seal with the responsible Secretariat.

(4) If the panel has issued an order pursuant to subrule (3)(b), the panel shall select two panelists, one of whom shall be a lawyer who is a citizen of the country of one involved Party and the other of whom shall be a lawyer who is a citizen of the country of the other involved Party.

(5) The two panelists selected under subrule (4) shall:

(a) examine the document

in camera;

and

(b) communicate their decision, if any, to the panel.

(6) The decision referred to in subrule (5)(b) shall be issued as an order of the panel.

(7) If the two panelists selected under subrule (4) fail to come to a decision, the panel shall:

(a) examine the document

in camera;

and

(b) issue an order with respect to the disclosure of the document.

(8) If an order referred to in subrule (6) or (7)(b) is to the effect that the document shall not be disclosed, the responsible Secretary shall return all copies of the document to the investigating authority by service under seal.

57. In a panel review of a final determination made in the United States or Canada, if, pursuant to Rule 56, disclosure of a document is granted,

(a) the panel shall limit disclosure to:

(i) persons who must have access in order to permit effective representation in the panel review,

(ii) persons, such as the Secretariat staff, court reporters, interpreters, and translators, who must have access for administrative purposes in order to permit effective functioning of the panel, and

(iii) members of an Extraordinary Challenge Committee and their assistants who may need access pursuant to the Extraordinary Challenge Committee Rules established under Annex 10-B.3(2) (Extraordinary Challenge Procedure) of the Agreement;

(b) the panel shall issue an order identifying by name and by title or position the persons who are entitled to access and shall allow for future access by new counsel of record and by members of an Extraordinary Challenge Committee and, as necessary, their assistants; and

(c) the investigating authority shall issue a Propriety Information Access Order with respect to that document in accordance with the order of the panel.

Violations of Proprietary Information Access Applications or Orders

58. If a person alleges that the terms of a Proprietary Information Access Application or of a Proprietary Information Access Order have been violated, the panel shall refer the allegations to the investigating authority for investigation and, if applicable, the imposition of sanctions in accordance with section 77.034 of the

Special Import Measures Act,

as amended, section 777(f) of the

Tariff Act of 1930,

as amended, or article 93 of the

Ley de Comercio Exterior.

Part VI: Written Proceedings (Rules 59-68)

Form and Content of Pleadings

59. (1) Every pleading filed in a panel review shall contain the following information:

(a) the title of, and any Secretariat file number assigned for, the panel review;

(b) a brief descriptive title of the pleading;

(d) the name of counsel of record for the Party, investigating authority, or interested person;

(e) the service address, as defined in Rule 5; and

(f) the telephone number and electronic mail address of the counsel of record referred to in subrule (d) or, if an interested person is not represented by counsel, the telephone number and

electronic mail address of the interested person.

(2) Every pleading filed in a panel review shall be on paper 8

1/2

x 11 inches (216 millimeters by 279 millimeters) in size. The text of the pleading shall be printed, typewritten, or reproduced legibly on one side only with a margin of approximately 1

1/2

inches (40 millimeters) on the left-hand side with double spacing between each line of text, except for quotations of more than 50 words, which shall be indented and single-spaced. Footnotes, titles, schedules, tables, graphs, and columns of figures shall be presented in a readable form. Briefs and appendices shall be securely bound along the left-hand margin.

(3) If a pleading is filed by electronic means, that pleading shall be formatted in a manner that, if printed, it would meet the requirements of subrule (2).

(4) Every pleading filed on behalf of a participant in a panel review shall be signed by written or electronic signature, by counsel for the participant or, if the participant is not represented by counsel, by the participant.

60. (1) If a participant files a pleading that contains proprietary information, the participant shall file two sets of the pleading in the following manner:

(a) one set containing the proprietary information shall be filed under seal and, with respect to a panel review of a final determination made in:

(i) Canada, shall be labelled “Proprietary”, “Confidential”, “Confidentiel” or “De nature exclusive”, with the top of each page that contains proprietary information marked with the word “Proprietary”, “Confidential”, “Confidentiel” or “De nature exclusive” and with the proprietary information enclosed in brackets,

(ii) Mexico, shall be labelled “Confidencial”, with the top of each page that contains proprietary information marked with the word “Confidencial” and with the proprietary information enclosed in brackets, and

(iii) the United States, shall be labelled “Proprietary”, with the top of each page that contains proprietary information marked with the word “Proprietary” and with the proprietary information enclosed in brackets; and

(b) no later than one day following the day on which the set of pleadings referred to in subrule (1)(a) is filed, another set not containing proprietary information shall be filed, and with respect to a panel review of a final determination made in:

(i) Canada, shall be labelled “Non-Proprietary”, “Non-Confidential”, “Non confidentiel” or “De nature non exclusive”,

(ii) Mexico, shall be labelled “No confidencial”, and

(iii) the United States, shall be labelled “Non-Proprietary”;

with each page from which proprietary information has been deleted marked to indicate the location from which the proprietary information was deleted.

(2) If a participant files a pleading that contains privileged information, the participant shall file two sets of the pleading in the following manner:

(a) one set containing the privileged information shall be filed under seal, and with respect to a panel review of a final determination made in:

(i) Canada, shall be labelled “Privileged” or “Protégé”, with the top of each page that contains privileged information marked with the word “Privileged” or “Protégé” and with the privileged information enclosed in brackets,

(ii) Mexico, shall be labelled “Privilegiada”, with the top of each page that contains privileged information marked with the word “Privilegiada”, and with the privileged information enclosed in brackets, and

(iii) the United States, shall be labelled “Privileged”, with the top of each page that contains privileged information marked with the word “Privileged” and with the privileged information enclosed in brackets; and

(b) no later than one day following the day on which the set of pleadings referred to in subrule (2)(a) is filed, another set not containing privileged information shall be filed and with respect to a panel review of a final determination made in:

(i) Canada, shall be labelled “Non-Privileged” or “Non protégé”,

(ii) Mexico, shall be labelled “No privilegiada”, and

(iii) the United States, shall be labelled “Non-Privileged”;

with each page from which privileged information has been deleted marked to indicate the location from which the privileged information was deleted.

Filing of Briefs

61. (1) Subject to subrule 43(1), every participant who has filed a Complaint under Rule 44 or a Notice of Appearance with a statement under subrule 45(1)(d)(i) or (iii) shall file a brief, setting forth grounds and arguments supporting allegations of the Complaint no later than 60 days after the expiration of the time period fixed, under subrule 46(1), for filing the administrative record.

(2) Every participant who has filed a Notice of Appearance with a statement under subrule 45(1)(d)(ii) or (iii) shall file a brief setting forth grounds and arguments opposing allegations of a Complaint no later than 60 days after the expiration of the time period for filing of briefs referred to in subrule (1).

(3) Every participant who has filed a brief pursuant to subrule (1) may file a brief replying to the grounds and arguments set forth in the briefs filed pursuant to subrule (2) no later than 15 days after the expiration of the time period for filing of briefs referred to in subrule (2). Reply briefs shall be limited to rebuttal of matters raised in the briefs filed pursuant to subrule (2).

(4) An appendix containing authorities cited in all briefs filed under any of subrules (1) to (3) must be filed with the responsible Secretariat no later than 10 days after the last day on which a brief under subrule (3) may be filed.

(5) Any number of participants may join in a single brief and any participant may adopt by reference any part of the brief of another participant.

(6) A participant may file a brief without appearing to present oral argument.

(7) If a panel review of a final determination made by an investigating authority of the United States with respect to certain goods involves issues that may relate to the final determination of the other investigating authority for those goods, the latter investigating authority may file an amicus curiae brief in the panel review in accordance with subrule (2).

Failure To File Briefs

62. (1) In respect of a panel review of a final determination made in the United States or Canada, if a participant fails to file a brief within the time period fixed and no motion pursuant to Rule 25 is pending, on a motion of another participant, the panel may order that the participant who fails to file a brief is not entitled to:

(a) present oral argument;

(b) service of any further pleadings, orders, or decisions in the panel review; or

(2) The panel may, on its own motion or pursuant to the motion of a participant, issue an order to show cause why the panel review should not be dismissed if:

(a) no brief is filed by any complainant or by any participant in support of any of the complainants within the time periods established pursuant to these Rules; and

(b) no motion pursuant to Rule 25 is pending.

(3) If, pursuant to an order under subrule (2), good cause is not shown, the panel shall issue an order dismissing the panel review.

(4) If no brief is filed by an investigating authority, or by an interested person in support of the investigating authority, within the time period fixed in subrule 61(2), a panel may issue a decision referred to in subrule 76(1).

Content of Briefs and Appendices

63. (1) Every brief filed pursuant to subrule 61(1) or (2) shall contain information, in the following order, divided into five parts:

Part I

(a) A table of contents; and

(b) A table of authorities cited:

The table of authorities shall contain references to all treaties, statutes, and regulations cited, any cases primarily relied on in the briefs, set out alphabetically, and all other documents referred to except documents from the administrative record. The table of authorities shall refer to the page(s) of the brief where each authority is cited and mark, with an asterisk in the margin, those authorities primarily relied on.

Part II: A Statement of the Case

(a) in the brief of a complainant or of a participant filing a brief pursuant to subrule 61(1), this Part shall contain a concise statement of the relevant facts;

(b) in the brief of an investigating authority or of a participant filing a brief pursuant to subrule 61(2), this Part shall contain a concise statement of the position of the investigating authority or the participant with respect to the statement of facts set out in the briefs referred to in paragraph (a), including a concise statement of other facts relevant to its case; and

(c) in all briefs, references to evidence in the administrative record shall be made by page and, where practicable, by line.

Part III: A Statement of the Issues

(a) in the brief of a complainant or of a participant filing a brief pursuant to subrule 61(1), this Part shall contain a concise statement of the issues; and

Part IV: Argument

This Part shall consist of the argument setting out concisely the points of law relating to the issues, with applicable citations to authorities and the administrative record.

Part V: Relief

This part shall consist of a concise statement precisely identifying the relief requested.

(2) Paragraphs in Parts I to V of a brief may be numbered consecutively.

(3) A reply brief filed pursuant to Rule 61(3) shall include a table of contents and a table of authorities, indicating those principally relied upon in the argument.

Appendix to the Briefs

64. (1) Authorities referred to in the briefs shall be included in an appendix, which shall be organized as follows: a table of contents, copies of all treaty and statutory references, references to regulations, cases primarily relied on in the briefs, set out alphabetically, and all other documents referred to in the briefs except documents from the administrative record.

(2) The appendix required under subrule 61(4) shall be compiled by a participant who filed a brief under subrule 61(1) and who was so designated by all the participants who filed a brief. Each participant who filed a brief under subrule 61(2) shall provide the designated participant with a copy of each authority on which it primarily relied in its brief that was not primarily relied on in any other brief filed under subrule 61(1). Each participant who filed a brief under subrule 61(3) shall provide the designated participant with a copy of each authority on which it primarily relied in its brief that was not primarily relied on in briefs filed pursuant to subrule 61(1) or (2).

(3) The costs for compiling the appendix shall be borne equally by all participants who file briefs.

Motions

65. (1) A motion shall be made by Notice of Motion in writing (model form provided in the Schedule) unless the circumstances make it unnecessary or impracticable.

(2) Every Notice of Motion, and any affidavit in support thereof, shall be accompanied by a proposed order of the panel (model form provided in the Schedule) and shall be filed with the responsible Secretariat, together with proof of service on all participants.

(3) Every Notice of Motion shall contain the following information:

(a) the title of the panel review, the Secretariat file number for that panel review, and a brief descriptive title indicating the purpose of the motion;

(b) a statement of the precise relief requested;

(c) a statement of the grounds to be argued, including a reference to any rule, point of law or legal authority to be relied on, together with a concise argument in support of the motion; and

(d) if necessary, references to evidence in the administrative record identified by page and, if practicable, by line.

(4) The pendency of any motion in a panel review shall not alter any time period fixed by these Rules or by an order or decision of the panel.

(5) A Notice of Motion to which all participants consent shall be titled a Consent Motion.

66. Subject to subrules 25(2) and 80(5), unless the panel otherwise orders, a participant may file a response to a Notice of Motion no later than 10 days after the Notice of Motion is filed.

67. (1) A panel may dispose of a motion based upon the pleadings filed pertaining to the motion.

(2) The panel may hear oral argument or, subject to subrule 31(b), direct that a motion be heard by means of a telephone or video conference call with the participants.

(3) A panel may deny a motion before responses to the Notice of Motion have been filed.

68. If a panel chooses to hear oral argument or, pursuant to subrule 67(2), directs that a motion be heard by means of a telephone or video conference call with the participants, the responsible Secretary shall, at the direction of the chair, fix a date, time and place for the hearing of the motion and shall notify all participants of the same.

Part VII: Oral Proceedings (Rules 69-73)

Location

69. Oral proceedings in a panel review shall take place at the office of the responsible Secretariat or at another location that the responsible Secretary arranges.

Pre-Hearing Conference

70. (1) A panel may hold a pre-hearing conference, in which case the responsible Secretary shall give notice of the conference to all participants.

(2) A participant may request that the panel hold a pre-hearing conference by filing with the responsible Secretariat a written request setting out the matters that the participant proposes to raise at the conference.

(3) The purpose of a pre-hearing conference shall be to facilitate the expeditious advancement of the panel review by addressing matters such as:

(a) the clarification and simplification of the issues;

(b) the procedure to be followed at the hearing of oral argument; and

(4) Subject to subrule 31(b), a pre-hearing conference may be conducted by means of a telephone or video conference call.

(5) Following a pre-hearing conference, the panel shall promptly issue an order setting out its rulings with respect to the matters considered at the conference.

Oral Argument

71. (1) A panel shall commence the hearing of oral argument no later than 30 days after the expiration of the time period fixed under subrule 61(3) for filing reply briefs. At the direction of the panel, the responsible Secretary must notify all participants of the date, time, and place for the oral argument.

(2) Oral argument shall be subject to the time constraints set by the panel and shall, unless the panel otherwise orders, be presented in the following order:

(a) the complainants and any participant who filed a brief in support of the allegations set out in a Complaint or partly in support of the allegations set out in a Complaint and partly in opposition to the allegations set out in a Complaint;

(b) the investigating authority and any participant who filed a brief in opposition to the allegations set out in a Complaint, other than a participant referred to in subrule (2)(a); and

(3) If a participant fails to appear at oral argument, the panel may hear argument on behalf of the participants who are present. If no participant appears, the panel may decide the case on the basis of the briefs.

(4) Oral argument on behalf of a participant on a motion or at a hearing shall be conducted by the counsel of record for that participant or, if the participant is a self-represented individual, by the participant.

(5) Oral argument shall be limited to the issues in dispute.

Oral Proceedings in Camera

72. During that part of oral proceedings in which proprietary information or privileged information is presented, a panel shall not permit any person other than the following persons to be present:

(a) the person presenting the proprietary information or privileged information;

(b) a person who has been granted access to the proprietary information or privileged information under a Proprietary Information Access Order or an order of the panel;

(c) in the case of privileged information, a person as to whom the confidentiality of the privileged information has been waived; and

(d) officials of, and counsel for, the investigating authority.

Subsequent Authorities

73. (1) A participant who has filed a brief may bring to the attention of the panel,

(a) at any time before the conclusion of oral argument, an authority that is relevant to the panel review;

(b) at any time after the conclusion of oral argument and before the panel has issued its decision,

(i) an authority that was reported subsequent to the conclusion of oral argument, or

(ii) with the leave of the panel, an authority that is relevant to the panel review and that came to the attention of counsel of record after the conclusion of oral argument;

by filing with the responsible Secretariat a written request, setting out the citation of the decision or judgment, the page reference of the brief of the participant to which the decision or judgment relates, and a concise statement, of no more than one page in length, of the relevance of the decision or judgment.

(2) A request referred to in subrule (1) must be filed as soon as possible after the issuance of the decision or judgment by the court.

(3) If a request referred to in subrule (1) is filed with the responsible Secretariat, another participant may, within no later than five days after the date on which the request was filed, file a concise statement, of no more than one page in length, in response.

Part VIII: Decisions and Completions of Panel Reviews (Rules 74-80)

Orders, Decisions, and Terminations

74. The responsible Secretary shall cause notice of every decision of a panel issued pursuant to subrule 76(1) to be published in the official publications of the involved Parties.

75. (1) If a participant files a Notice of Motion requesting dismissal of a panel review, the panel may issue an order dismissing the panel review.

(2) If a participant files a Notice of Motion requesting termination of a panel review, all the participants consent to the request, and an affidavit to that effect is filed, or if all participants file Notices of Motion requesting termination, the panel review is terminated and, if a panel has been appointed, the panelists are discharged.

(3) A panel review is deemed to be terminated on the day after the expiration of the limitation period established pursuant to subrule 44(1) if no Complaint has been filed in a timely manner. The responsible Secretariat shall issue a Notice of Completion of Panel Review.

76. (1) A panel must issue a written decision with reasons, together with any dissenting or concurring opinions of the panelists, in accordance with Article 10.12.8 (Review of Final Antidumping and Countervailing Duty Determinations) of the Agreement, within 90 days of the oral hearing. The decision will normally be released by noon on the date of issuance.

(2) The Panel must notify the participants and the involved Parties of any delay in the issuance of its decision.

Panel Review of Action on Remand

77. (1) An investigating authority shall give notice of the action taken pursuant to a remand of the panel by filing with the responsible Secretariat a Determination on Remand within the time specified by the panel.

(2) If, on remand, the investigating authority has supplemented the administrative record,

(a) the investigating authority shall file, physically or electronically, with the responsible Secretariat an Index listing each item in the supplementary remand record, together with proof of service of the Index on the counsel of record of each of the participants, or if a participant is not represented by counsel, on the participant, and one copy of each non-privileged item listed in that Index, no later than five days after the date on which the investigating authority filed the Determination on Remand with the panel;

(b) any participant who intends to challenge the Determination on Remand shall file a written submission with respect to the Determination on Remand no later than 20 days after the date on which the investigating authority filed the Index and supplementary remand record; and

(c) any response to the written submissions referred to in subrule (2)(b) shall be filed by the investigating authority, and by any participant supporting the investigating authority, no later than 20 days after the last day on which written submissions in opposition to the Determination on Remand may be filed.

(3) If, on remand, the investigating authority has not supplemented the record,

(a) any participant who intends to challenge the Determination on Remand shall file a written submission no later

than 20 days after the date on which the investigating authority filed the Determination on Remand with the panel; and

(b) any response to the written submissions referred to in subrule (3)(a) shall be filed by the investigating authority, and by any participant filing in support of the investigating authority, no later than 20 days after the last day on which those written submissions may be filed.

(4) In the case of a panel review of a final determination made in Mexico, if a participant who fails to file a brief under Rule 61 files a written submission pursuant to subrule (2)(b) or (3)(a), the submission shall be disregarded by the panel.

(5) If no written submissions are filed under subrule (2)(b) or (3)(a) within the time periods established by these Rules, and if no motion pursuant to Rule 25 is pending, the panel shall, within no later than 10 days after the later of the due date for those written submissions and the date of the denial of a motion pursuant to Rule 25, issue an order affirming the investigating authority's Determination on Remand.

(6) If a Determination on Remand is challenged, the panel shall issue a written decision pursuant to subrule 76(1), either affirming the Determination on Remand or remanding it to the investigating authority, no later than 90 days after the Determination on Remand is filed.

78. In setting the date by which a Determination on Remand shall be due from the investigating authority, the panel shall take into account, among other factors,

(a) the date that any Determination on Remand with respect to the same goods is due from the other investigating authority; and

(b) the effect the Determination on Remand from the other investigating authority might have on the deliberations of the investigating authority with respect to the making of a final Determination on Remand.

Re-Examination of Orders and Decisions

79. A clerical error in an order or decision of a panel, or an error in an order or decision of a panel arising from any accidental oversight, inaccuracy, or omission, may be corrected by the panel at any time during the panel review.

80. (1) A participant may, no later than 10 days after a panel issues its decision, file a Notice of Motion requesting that the panel re-examine its decision for the purpose of correcting an accidental oversight, inaccuracy, or omission, which shall set out:

(a) the oversight, inaccuracy, or omission with respect to which the request is made;

(b) the relief requested; and

(2) The grounds for a motion referred to in subrule (1) shall be limited to one or both of the following grounds:

(a) that the decision does not accord with the reasons therefor; or

(b) that some matter has been accidentally overlooked, stated inaccurately, or omitted by the panel.

(3) No Notice of Motion referred to in subrule (1) shall set out any argument already made in the panel review.

(4) There shall be no oral argument in support of a motion referred to in subrule (1).

(5) Except as the panel may otherwise order under subrule (6)(b), no participant shall file a response to a Notice of Motion filed pursuant to subrule (1).

(6) No later than seven days after the filing of a Notice of Motion under subrule (1), the panel shall:

(a) issue a decision ruling on the motion; or

(b) issue an order identifying further action to be taken concerning the motion.

(7) A decision or order under subrule (6) may be made with the concurrence of any three panelists.

Part IX: Completion of Panel Review (Rules 81-89)

Completion of Panel Review

81. (1) Subject to subrule (2), when a panel issues:

(a) an order dismissing a panel review under subrule 62(3) or 75(1);

(b) a decision under subrule 76(1) or 77(6) that is the final action in the panel review; or

the panel shall direct the responsible Secretary to issue a Notice of Final Panel Action (model form provided in the Schedule) on the eleventh day thereafter.

(2) If a motion is filed pursuant to subrule 80(1) regarding a decision referred to in subrule (1)(b), the responsible Secretary shall issue the Notice of Final Panel Action on the day on which the panel:

(a) issues a ruling finally disposing of the motion; or

(b) directs the responsible Secretary to issue the Notice of Final Panel Action, the issuance of which shall constitute a denial of the motion.

82. If no Request for an Extraordinary Challenge Committee is filed, the responsible Secretary shall publish a Notice of Completion of Panel Review in the official publications of the involved Parties, effective:

(a) on the day on which a panel is terminated pursuant to subrule 75(2); or

(b) in any other case, on the day after the expiration of the limitation period established pursuant to subrules 41(1) and 41(2)(a) of the Extraordinary Challenge Committee Rules under Annex 10-B.3(2) (Extraordinary Challenge Procedure) of the Agreement.

83. If a Request for an Extraordinary Challenge Committee has been filed, the responsible Secretary shall publish a Notice of Completion of Panel Review in the official publications of the involved Parties, effective on the day after the day referred to in Rule 68 or subrule 69(a) of the Extraordinary Challenge Committee Rules under Annex 10-B.3(2) (Extraordinary Challenge Procedure) of the Agreement.

84. Panelists are discharged from their duties on the day on which a Notice of Completion of Panel Review is effective, or on the day on which an Extraordinary Challenge Committee vacates a panel review pursuant to subrule 69(b) of the Extraordinary Challenge Committee Rules under Annex 10-B.3(2) (Extraordinary Challenge Procedure) of the Agreement.

Stays and Suspensions

85. If a panelist becomes unable to fulfill panel duties, is disqualified or dies, panel proceedings and the running of time periods shall be suspended, pending the appointment of a substitute panelist in accordance with the procedures set out in Annex 10-B.1 (Establishment of Binational Panels) of the Agreement.

86. If a panelist is disqualified, dies or otherwise becomes unable to fulfill panel duties after the oral argument, the chair may order that the matter be reheard, on such terms as are appropriate, after selection of a substitute panelist.

87. (1) A Party may make a request, pursuant to Article 10.13.11(a)(ii) (Safeguarding the Panel Review System) of the Agreement, that an ongoing panel review be stayed by filing the request with the responsible Secretariat.

(2) A Party who files a request under subrule (1) shall forthwith give written notice of the request to the other involved Party and to the other involved Secretariat.

(3) On receipt of a request under subrule (1), the responsible Secretary shall:

(a) immediately give written notice of the stay of the panel review to all participants in the panel review; and

(b) publish a notice of the stay of the panel review in the official publications of the involved Parties.

88. On receipt of a report containing an affirmative finding with respect to a ground specified in Article 10.13.1 (Safeguarding the Panel Review System) of the Agreement, the responsible Secretary for panel reviews referred to in Article 10.13.11(a)(i) (Safeguarding the Panel Review System) of the Agreement shall:

(a) immediately give notice in writing to all participants in those reviews; and

(b) publish a notice of the affirmative finding in the official publications of the involved Parties.

89. (1) A Party who intends to suspend the operation of Article 10.12 (Review of Final Antidumping and Countervailing Duty Determinations) of the Agreement pursuant to Article 10.13.8 (Safeguarding the Panel Review System) or Article 10.13.9 (Safeguarding the Panel Review System) of the Agreement shall endeavor to give written notice of that intention to the other involved Party and to the involved Secretaries at least five days prior to the suspension.

(2) On receipt of a notice under subrule (1), the involved Secretaries shall publish a notice of the suspension in the official publications of the involved Parties.

BILLING CODE 3390-F3-P

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BILLING CODE 3390-F3-C

RULES OF PROCEDURE FOR ANNEX 10-B.3

(EXTRAORDINARY CHALLENGE COMMITTEES)

Part I: Initial Provisions and Definitions (Rules 1-10)

Application

1. These Rules are established in accordance with Annex 10-B.3.2 (Extraordinary Challenge Procedure) of the Agreement and apply to all extraordinary challenge committee proceedings conducted pursuant to Article 10.12.13 (Review of Final Antidumping and Countervailing Duty Determinations) of the Agreement. These Rules will be published in Canada in the

Canada Gazette,

in Mexico in the

Diario Oficial de la Federación,

and in the United States in the

Federal Register

Short Title

2. These Rules may be cited as the Extraordinary Challenge Committee Rules.

Statement of General Intent

3. These Rules give effect to the provisions of Chapter 10 (Trade Remedies) of the Agreement with respect to extraordinary challenge procedures conducted pursuant to Article 10.12.13 (Review of Final Antidumping and Countervailing Duty Determinations) and Annex 10-B.3 (Extraordinary Challenge Procedure) of the Agreement and are designed to result in decisions within 90 days after the establishment of the committee. If a procedural question arises that is not covered by these Rules, a committee may adopt an appropriate procedure that is not inconsistent with the Agreement.

4. In the event of any inconsistency between the provisions of these Rules and the Agreement, the Agreement shall prevail.

Definitions and Interpretation

5. For the purposes of these Rules:

Agreement

means the Agreement signed between Canada, Mexico, and the United States on November 30, 2018, as amended;

Code of Conduct

means the code of conduct established by the Parties pursuant to Article 10.17 (Code of Conduct) of the Agreement;

committee

means an extraordinary challenge committee established pursuant to Annex 10-B.3 (Extraordinary Challenge Procedure) of the Agreement;

counsel

means, with respect to an extraordinary challenge of a panel review of a final determination made in:

(a) Canada, a person entitled to appear as counsel before the Federal Court of Canada;

(b) Mexico, a person entitled to appear as counsel before the Tribunal Federal de Justicia Administrativa; and

counsel of record

means a counsel referred to in subrule 18(1);

final determination

means, in the case of Canada, a definitive decision within the meaning of subsection 77.01(1) of the

Special Import Measures Act,

as amended;

investigating authority

means the competent investigating authority, as defined in Article 10.8 (Definitions) of the Agreement, that issued the final determination that was the subject of the panel review to which an extraordinary challenge procedure relates and includes, in respect of the issuance, amendment, modification or revocation of a Proprietary Information Access Order, a person authorized by the investigating authority;

involved Secretariat

means the Section of the Secretariat located in the country of an involved Party;

legal holiday

for a Party's Section of the Secretariat, means every Saturday and Sunday and any other day designated by that Party as a holiday for the purposes of these Rules and notified by that Party to its Section of the Secretariat and by that Section to the other Sections of the Secretariat and the other Parties;

official publication

means in the case of the Government of:

(a) Canada, the

Canada Gazette;

(b) Mexico, the

Diario Oficial de la Federación;

and

Federal Register

;

panel

means a binational panel established pursuant to Annex 10-B.1 (Establishment of Binational Panels) of the Agreement, the decision of which is the subject of an extraordinary challenge;

participant

means a Party who files a Request for an Extraordinary Challenge Committee or any of the following persons who files a Notice of Appearance pursuant to these Rules:

(a) the other involved Party;

(b) a person who participated in the panel review that is the subject of the extraordinary challenge; and

(c) a panelist against whom an allegation referred to in Article 10.12.13(a)(i) (Review of Final Antidumping and Countervailing Duty Determinations) of the Agreement is made;

Party

means the Government of Canada, the Government of Mexico, or the Government of the United States;

person

means:

(a) an individual;

(b) a Party;

(d) a government of a province, state or other political subdivision of the country of a Party;

(e) a department, agency, or body of a Party or of a government referred to in paragraph (d); or

(f) a partnership, corporation, or association;

personal information

means, with respect to an extraordinary challenge proceeding in which an allegation is made that 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, information submitted pursuant to subrule 43(2) and Rule 45;

pleading

means a Request for an Extraordinary Challenge Committee, a Notice of Appearance, a Change of Service Address, a Notice of Change of Counsel of Record, a Notice of Motion, a brief, or any other written submission filed by a participant;

President

means the President of the Canada Border Services Agency appointed under subsection 7(1) of the

Canada Border Services Agency Act,

as amended, and includes a person authorized to perform a power, duty, or function of the President under the

Special Import Measures Act,

as amended;

privileged information

means with respect to an extraordinary challenge of a panel review of a final determination made in:

(a) Canada, information of the investigating authority that is subject to solicitor-client privilege under the laws of Canada, or that constitutes part of the deliberative process with respect to the final determination, with respect to which the privilege has not been waived;

(b) Mexico,

(i) information of the investigating authority that is subject to attorney-client privilege under the laws of Mexico, or

(ii) internal communications between officials of the Secretariat of Economy (

Secretaría de Economía

subject to the attorney-client, attorney work product or government deliberative process privilege under the laws of the United States and with respect to which the privilege has not been waived;

proof of service

means with respect to an extraordinary challenge of a panel review of a final determination made in:

(a) Canada or Mexico,

(i) an affidavit of service stating the name of the person who served the document, the date on which it was served, where it was served, and the manner of service, or

(ii) a written acknowledgement of service by counsel for a participant stating the name of the person who served the document, the date on which it was served, and the manner of service and, if the acknowledgement is signed by a person other than the counsel, the name of that person followed by a statement that the person is signing as agent for the counsel; and

(b) the United States, a certificate of service in the form of a statement of the date and manner of service and of the name of the person served, signed by the person who made service;

proprietary information

means with respect to an extraordinary challenge of a panel review of a final determination made in:

(a) Canada, information referred to in subsection 84(3) of the

Special Import Measures Act,

as amended, or subsection 45(3) of the

Canadian International Trade Tribunal Act,

as amended, and with respect to which the person who designated or submitted the information has not withdrawn the person's claim as to the confidentiality of the information;

(b) Mexico,

información confidencial,

as defined under article 80 of the

Ley de Comercio Exterior

and its regulations; and

Tariff Act of 1930,

as amended, and any regulations made under that Act;

Proprietary Information Access Application

means with respect to an extraordinary challenge of a panel review of a final determination made in:

(a) Canada, a disclosure undertaking in the prescribed form, which form,

(i) in respect of a final determination by the President, is available from the President, and

(ii) in respect of a final determination by the Tribunal, is available from the Tribunal;

(b) Mexico, a disclosure undertaking in the prescribed form, which form is available the from Secretariat of Economy (

Secretaría de Economía

); and

(ii) in respect of a final determination by the United States International Trade Commission, in a form prescribed by, and available from, the United States International Trade Commission;

Proprietary Information Access Order

means in the case of:

(a) Canada, a Disclosure Order issued by the President or the Tribunal pursuant to a Proprietary Information Access Application;

(b) Mexico, a Disclosure Order issued by the Secretariat of Economy (

Secretaría de Economía

) pursuant to a Proprietary Information Access Application; and

responsible Secretariat

means, with respect to an extraordinary challenge of a panel review, the Section of the Secretariat located in the country in which the final determination reviewed by the panel was made;

responsible Secretary

means the Secretary of the responsible Secretariat;

Secretariat

means the Secretariat established pursuant to Article 30.6 (The Secretariat) of the Agreement;

Secretary

means the Secretary of the United States Section of the Secretariat, the Secretary of the Mexican Section of the Secretariat, or the Secretary of the Canadian Section of the Secretariat and includes any person authorized to act on behalf of that Secretary;

service address

means:

(a) with respect to a Party or panelist, the address filed with the Secretariat as the service address of the Party or panelist, including an electronic mail address submitted with that address;

(b) with respect to a participant other than a Party or panelist, the service address of the participant filed with the Secretariat in the panel review; or

(c) if a Change of Service Address has been filed by a Party, panelist, or participant, the address set out as the new service address of the participant in that form, including an electronic mail address submitted with that address; and

Tribunal

means the Canadian International Trade Tribunal or its successor and includes any person authorized to act on its behalf.

6. The definitions set forth in Article 10.8 (Definitions) of the Agreement are hereby incorporated into these Rules.

7. When these Rules require that notice be given, it shall be given in writing.

Code of Conduct

8. Candidates being considered for appointment to a committee, committee members and their assistants, and staff, must comply with the Code of Conduct established under Article 10.17 (Code of Conduct) of the Agreement.

9. The responsible Secretariat shall provide a copy of the Code of Conduct to each candidate being considered for appointment to serve as a committee member, and to each individual selected to serve as a committee member as well as to their assistants and staff.

10. If a participant believes that a committee member, assistant, or staff to a committee member is in violation of the Code of Conduct, the participant shall forthwith notify the responsible Secretary in writing of the alleged violation. The responsible Secretary shall promptly notify the other involved Secretary and the involved Parties of the allegations.

Part II: General (Rules 11-27)

Duration and Scope of Proceedings

11. An extraordinary challenge proceeding commences on the day on which a Request for an Extraordinary Challenge Committee is filed with the Secretariat and terminates on the day on which a Notice of Completion of Extraordinary Challenge is effective.

12. The general legal principles of the country in which a final determination was made apply in an extraordinary challenge of the decision of a panel with respect to the final determination.

13. A committee may review any part of the record of the panel review relevant to the extraordinary challenge.

Internal Functioning of Committees

14. (1) For routine administrative matters governing its own internal functioning, a committee may adopt procedures not inconsistent with these Rules or the Agreement.

(2) Subject to subrule 38(b), meetings of a committee may be conducted by means of a telephone or video conference call.

15. Only committee members may take part in the deliberations of a committee, which shall take place in private and remain secret. Staff of the

involved Secretariats and assistants to committee members may be present by permission of the committee.

Computation of Time

16. (1) In computing any time period fixed in these Rules or by an order or decision of a committee, the day from which the time period begins to run shall be excluded and, subject to subrules (2) and (3), the last day of the time period shall be included.

(3) In computing any time period of five days or less fixed in these Rules or by an order or decision of a committee, any legal holiday or any other day on which the offices of that Section are closed by order of the government or because of unforeseen circumstances outside that Party's control, that falls within the time period shall be excluded from the computation.

17. A committee may extend any time period fixed in these Rules if:

(a) the extension is made in the interests of fairness and justice; and

(b) in fixing the extension, the committee takes into account the intent of the Rules to secure just, speedy and inexpensive final resolutions of challenges to decisions of panels.

Counsel of Record

18. (1) Subject to subrule (2), the counsel of record for a participant in an extraordinary challenge proceeding shall be:

(a) the counsel for the participant in the panel review; or

(b) in the case of a Party who was not a participant in the panel review or of a panelist, the counsel who signs any document filed on behalf of the Party or panelist in the extraordinary challenge proceeding.

Costs of Participation, Committee Remuneration, and Expenses

19. (1) Each participant shall bear the costs of, and those incidental to, its own participation in an extraordinary challenge proceeding.

(2) The involved Parties shall bear equally the remuneration and expenses of committee members selected under Annex 10-B.3 (Extraordinary Challenge Procedure), and of their assistants, and all administrative expenses of the committee.

(3) Unless the involved Parties agree otherwise, remuneration for committee members shall be paid at the rate for non-governmental panelists used by the WTO on the date the Request for Extraordinary Challenge Committee is made pursuant to Article 10.12.13 (Review of Final Antidumping and Countervailing Duty Determinations).

(4) Unless the involved Parties agree otherwise, travel expenses shall be paid at the Daily Subsistence Allowance rate for the location of the hearing established by the United Nations International Civil Service Commission on the date a Request for Extraordinary Challenge Committee is made pursuant to Article 10.12.13 (Review of Final Antidumping and Countervailing Duty Determinations).

(5) Each committee member may hire one assistant to provide research, translation, or interpretation support, unless a committee member requires an additional assistant and the involved Parties agree that, due to exceptional circumstances, a committee member should be permitted to hire an additional assistant. Each assistant to a committee member shall be paid at a rate of one-fifth the rate for a committee member.

(6) The expenses authorized for a committee established under Annex 10-B.3 (Extraordinary Challenge Procedure), shall be as follows:

(c) travel expenses: include the transportation costs of the committee members and assistants, their accommodations and meals, as well as related taxes and insurance. Travel arrangements shall be made and travel expenses reimbursed, in accordance with the administrative guidelines applied by the responsible Secretariat; and

(d) administrative expenses: include, among others, telephone calls, courier services, fax, stationery, rent of locations used for hearings and deliberations, interpreter services, court reporters, or any other person or service contracted by the responsible Secretariat to support the proceeding.

(7) Each committee member and assistant shall keep and render a final account of his or her time and expenses to the responsible Secretariat, and the committee shall keep and render a final account to the responsible Secretariat of its administrative expenses. Each committee member and assistant shall submit this account, including relevant supporting documentation, such as invoices, in accordance with the administrative guidelines of the responsible Secretariat. A committee member or assistant may submit requests for payment of remuneration or reimbursement for expenses during the proceeding on a recommended quarterly basis throughout an ongoing dispute. Committee members and assistants should submit any final requests for payment of remuneration or reimbursement within 60 days of the filing of a Notice of Completion of Extraordinary Challenge.

(8) All requests for payment shall be subject to review by the responsible Secretariat. The responsible Secretariat shall make payments for the remuneration of committee members and assistants, and for expenses in accordance with the administrative guidelines applied by the responsible Secretariat, using resources provided equally by the involved Parties, and in coordination with the involved Parties. No responsible Secretariat shall be obligated to pay any remuneration or expense in connection with a committee prior to receiving the contributions of the involved Parties.

(10) In case of resignation or removal of a committee member or assistant, or if a committee issues an Order terminating a proceeding, the responsible Secretariat will make payment of the remuneration and expenses owed up until the date of resignation or removal of the committee member or assistant, or the date of the Order terminating the proceeding, using resources provided equally by the involved Parties. A committee member's or assistant's final account of time or expenses must follow the procedures in paragraph 7 and should be submitted within 60 days of the date of their resignation, or removal, or of an Order terminating the committee proceeding.

Proprietary Information and Privileged Information

20. (1) If proprietary information has been filed in a panel review that is the subject of an extraordinary challenge proceeding, every committee member, assistant to a committee member, court

reporter, interpreter, and translator shall provide the responsible Secretariat, physically or electronically,

with a Proprietary Information Access Application.

For greater certainty, for electronic filings, the Mexican Secretariat will verify the authenticity of the application and the documents submitted.

(2) Upon receipt of a Proprietary Information Access Application, the responsible Secretary shall file the Proprietary Information Access Application either physically, one original and any additional copies required, or electronically, with the appropriate investigating authority.

(3) The investigating authority shall issue the Proprietary Information Access Order and provide the responsible Secretariat with the original and any additional copies of those documents required by the responsible Secretariat.

(4) Upon receipt of a Proprietary Information Access Order, the responsible Secretary shall transmit the original Proprietary Information Access Order to the appropriate committee member, assistant to a committee member, court reporter, interpreter or translator.

21. (1) A committee member, assistant to a committee member, court reporter, interpreter, or translator who amends or modifies a Proprietary Information Access Application shall provide a copy of the amendment or modification to the responsible Secretariat.

(2) Upon receipt of an amendment or modification to a Proprietary Information Access Application, the responsible Secretary shall file the amendment or modification with the appropriate investigating authority and any additional copies required by the investigating authority.

(3) Upon receipt of an amendment or modification to a Proprietary Information Access Application, the investigating authority shall, as appropriate, amend, modify or revoke the Proprietary Information Access Order and provide the responsible Secretariat with the original of the amendment, modification or notice of revocation and any additional copies of the document required by the responsible Secretariat.

(4) Upon receipt of an amendment or modification to a Proprietary Information Access Order or a notice of revocation, the responsible Secretary shall transmit the amendment, modification or notice of revocation to the appropriate committee member, assistant to a committee member, court reporter, interpreter or translator.

22. The responsible Secretary shall serve Proprietary Information Access Orders granted to committee members, assistants to committee members, court reporters, interpreters, or translators, and any amendments or modifications thereto or notices of revocation thereof, on all participants other than the investigating authority.

23. (1) A counsel of record, or a professional retained by, or under the control or direction of, a counsel of record, who has not been issued a Proprietary Information Access Order in the panel review or in these proceedings and who wishes disclosure of proprietary information in the file of an extraordinary challenge proceeding, must file a Proprietary Information Access Application, as follows:

(a) with the responsible Secretariat, two copies; and

(b) with the investigating authority, one original and any additional copies that the investigating authority requires.

(2) A Proprietary Information Access Application referred to in subrule (1) shall be served on all participants.

(3) Electronic means may be used to satisfy the service and filing requirements of subrules (1) and (2).

For greater certainty, for electronic filings with respect to subrule 23(1)(b), the Mexican investigating authority may verify the authenticity of the application and the documents submitted.

(4) The investigating authority shall, no later than 10 days after a Proprietary Information Access Application is filed with it in accordance with subrule (1), serve on the person who filed the Proprietary Information Access Application a:

(a) Proprietary Information Access Order; or

(b) notification in writing setting out the reasons why a Proprietary Information Access Order is not issued.

24. (1) If an investigating authority:

(a) refuses to issue a Proprietary Information Access Order to a counsel of record or to a professional retained by, or under the control or direction of, a counsel of record; or

(b) issues a Proprietary Information Access Order with terms unacceptable to a counsel of record,

the counsel of record may file with the responsible Secretariat a Notice of Motion requesting that the committee review the decision of the investigating authority.

(2) If, after consideration of any response made by the investigating authority referred to in subrule (1), the committee decides that a Proprietary Information Access Order should be issued or that the terms of a Proprietary Information Access Order should be amended or modified, the committee shall so notify counsel for the investigating authority.

(3) If the final determination was made in the United States and the investigating authority fails to comply with the notification referred to in subrule (2), the committee may issue such orders as are just in the circumstances, including an order refusing to permit the investigating authority to make certain arguments in support of its case or striking certain arguments from its pleadings.

25. (1) If a Proprietary Information Access Order is issued to a person in an extraordinary challenge proceeding, the person shall file with the responsible Secretariat a copy of the Proprietary Information Access Order.

(2) If a Proprietary Information Access Order is revoked, amended or modified by an investigating authority, the investigating authority shall provide to the responsible Secretariat and to all participants a copy of the Notice of Revocation, amendment or modification.

26. In an extraordinary challenge proceeding that commences with a Request for an Extraordinary Challenge Committee pursuant to Article 10.12.13(a)(i) (Review of Final Antidumping and Countervailing Duty Determinations) of the Agreement, personal information shall be kept confidential:

(a) if a Notice of Motion is filed pursuant to subrule 45(1)(c),

(i) until the committee makes an order referred to in subrule 49(1)(a), or

(ii) if the committee makes an order referred to in subrule 49(1)(b), indefinitely, unless otherwise ordered by the committee; and

(b) in any other case, until the day after the expiration of the time period fixed, pursuant to Rule 45, for filing a Notice of Motion referred to in subrule 45(1)(c).

27. If a person alleges that the terms of a Proprietary Information Access Application or Proprietary Information Access Order have been violated, the committee shall refer the allegations to the investigating authority for investigation and, if applicable, the imposition of sanctions in accordance with section 77.034 of the

Special Import Measures Act,

as amended, section 777(f) of the

Tariff Act of 1930,

as amended, or article 93 of the

Ley de Comercio Exterior.

Pleadings and Simultaneous Translation of Extraordinary Challenge Proceedings in Canada

28. Rules 29 to 31 apply with respect to an extraordinary challenge of a panel review of a final determination made in Canada.

29. A person, panelist, or committee member may use either English or French in any document or oral proceeding.

30. (1) Subject to subrule (2), any order or decision including the reasons for it, issued by a committee shall be made available simultaneously in both English and French if:

(a) in the opinion of the committee, the order or decision is in respect of a question of law of general public interest or importance; or

(b) the proceedings leading to the issuance of the order or decision were conducted in whole or in part in both English and French.

(2) If an order or decision:

(a) issued by a committee is not required by subrule (1) to be made available simultaneously in English and French; or

(b) is required by subrule (1)(a) to be made available simultaneously in both English and French but the committee is of the opinion that to make the order or decision available simultaneously in both English and French would occasion a delay prejudicial to the public interest or result in injustice or hardship to any participant,

the order or decision, including the reasons therefor, shall be issued in the first instance in either English or French and thereafter at the earliest possible time in the other language, each version to be effective from the time the first version is effective.

(3) Nothing in subrule (1) or (2) shall be construed as prohibiting the oral delivery in either English or French of any order or decision or any reasons therefor.

(4) No order or decision is invalid by reason only that it was not made or issued in both English and French.

31. (1) Any oral proceeding conducted in both English and French shall be translated simultaneously.

(2) If a participant requests simultaneous translation of an extraordinary challenge proceeding, the request shall be made as early as possible in the proceedings.

(3) If a committee is of the opinion that there is a public interest in the extraordinary challenge proceedings, the committee may direct the responsible Secretary to arrange for simultaneous translation of the oral proceedings, if any.

Part II: Written Proceedings (Rules 32-44)

Filing, Service, and Communications

32. (1) Subject to subrule 34(1) and, if applicable, Rule 36, a document is filed with the Secretariat when the responsible Secretariat receives the document, during its normal business hours and within the time period fixed for filing, physically, with one original and two copies, or when the document is filed by electronic means.

(2) The responsible Secretariat shall also acknowledge receipt, physically or electronically, to the party filing the document.

(3) Acknowledgement pursuant to subrule (2) does not constitute a waiver of any time period fixed for filing or an acknowledgement that the document has been filed in accordance with these Rules.

33. (1) All documents filed by a participant, other than documents required by Rule 62 to be served by the responsible Secretary and documents referred to in subrule 42(2), Rule 43, subrule 44(2)(a) and Rule 45 shall be served by the participant on the counsel of record of each of the other participants or, if another participant is not represented by counsel, on the other participant.

(2) If an electronic filing platform agreed upon by the involved Parties is used for filing, electronic notification by the filing platform shall satisfy the service requirements of this Rule.

(3) Subject to subrules 34(1) and 38(a), a document may be served by:

(a) mailing or delivering a copy of the document to the service address of the participant by expedited delivery courier or expedited mail service;

(b) transmitting a copy of the document to the electronic service address of the participant;

(d) any means, including the use of an electronic filing platform agreed upon by the involved Parties, that the responsible Secretariat, in consultation with participants, may direct.

(4) A proof of service shall appear on, or be affixed to, all documents referred to in subrule (1).

(5) If a document is served by expedited delivery courier or expedited mail service, the date of service set out in the affidavit of service or certificate of service shall be the day on which the document is consigned to the expedited delivery courier or expedited mail service.

(6) If a document is served electronically, the date of service shall be the day on which the document is sent by the sender.

34. (1) If, under these Rules, a document containing proprietary, privileged, or personal information is required to be filed under seal with the Secretariat or is required to be served under seal, the document shall be filed or served in accordance with this Rule and, if applicable, in accordance with Rule 36.

(2) A document filed or served under seal shall be:

(a) separate from all other documents;

(b) clearly marked:

(i) with respect to an extraordinary challenge of a panel review of a final determination made in Canada,

(A) in the case of a document containing proprietary information, “Proprietary”, “Confidential”, “De nature exclusive” or “Confidentiel”,

(B) in the case of a document containing privileged information, “Privileged” or “Protégé”, and

(C) in the case of a document containing personal information, “Personal Information” or “Renseignements personnels”; and

(ii) with respect to an extraordinary challenge of a panel review of a final determination made in Mexico,

(A) in the case of a document containing proprietary information, “Confidencial”,

(B) in the case of a document containing privileged information, “Privilegiada”, and

(iii) with respect to an extraordinary challenge of a panel review of a final determination made in the United States,

(A) in the case of a document containing proprietary information, “Proprietary”,

(B) in the case of a document containing privileged information, “Privileged”, and

(e) inside:

(i) an opaque inner wrapper and an opaque outer wrapper, if filed or served physically,

(ii) a cover sheet, if filed or served electronically.

(3) An inner wrapper or cover sheet referred to in subrule (2)(c) shall indicate:

(a) that proprietary, privileged, or personal information is enclosed, as the case may be; and

(b) the Secretariat file number of the extraordinary challenge proceeding.

35. Filing or service of proprietary, privileged, or personal information with the Secretariat does not constitute a waiver of the designation of the information as proprietary, privileged, or personal information.

36. (1) If a participant files a pleading that contains proprietary information, the participant shall file two sets of the pleading in the following manner:

(a) one set containing the proprietary information shall be filed under seal and, with respect to an extraordinary challenge of a panel review of a final determination made in:

(iii) the United States, shall be labelled “Proprietary” with the top of each page that contains proprietary information marked with the word “Proprietary” and with the proprietary information enclosed in brackets; and

(b) no later than one day following the day on which the set of pleadings referred to in subrule (1)(a) is filed, another set not containing proprietary information shall be filed and, with respect to an extraordinary challenge of a panel review of a final determination made in:

(i) Canada, shall be labelled “Non-Proprietary”, “Non-Confidential”, “Non confidentiel” or “De nature non exclusive”,

(ii) Mexico, shall be labelled “No confidencial”, and

(iii) the United States, shall be labelled “Non-Proprietary”;

with each page from which proprietary information has been deleted marked to indicate the location from which the proprietary information was deleted.

(2) If a participant files a pleading that contains privileged information, the participant shall file two sets of the pleading in the following manner:

(a) one set containing the privileged information shall be filed under seal and, with respect to an extraordinary challenge of a panel review of a final determination made in:

(ii) for Mexico, shall be labelled “Privilegiada”, with the top of each page that contains privileged information marked with the word “Privilegiada” and with the privileged information enclosed in brackets, and

(b) no later than one day following the day on which the set of pleadings referred to in subrule (2)(a) is filed, another set not containing privileged information shall be filed and, with respect to an extraordinary challenge of a panel review of a final determination made in:

(i) Canada, shall be labelled “Non-Privileged” or “Non protégé”,

(ii) Mexico, shall be labelled “No privilegiada”, and

(iii) the United States, shall be labelled “Non-Privileged”;

with each page from which privileged information has been deleted marked to indicate the location from which the privileged information was deleted.

(3) If a participant files a pleading that contains personal information, the pleading shall be filed under seal and, with respect to an extraordinary challenge of a panel review of a final determination made in:

(a) Canada, shall be labelled “Personal Information” or “Renseignements personnels”, with the top of each page that contains personal information marked with the words “Personal Information” or “Renseignements personnels” and with the personal information enclosed in brackets;

(b) Mexico, shall be labelled “Información Personal”, with the top of each page that contains personal information marked with the words “Información personal” and with the personal information enclosed in brackets; and

(c) the United States, shall be labelled “Personal Information”, with the top of each page that contains personal information marked with the words “Personal Information” and with the personal information enclosed in brackets.

37. (1) Subject to subrule (2), a document containing proprietary or privileged information shall be filed under seal in accordance with Rule 34 and shall be served only on the investigating authority and on those participants who have been granted access to the information under a Proprietary Information Access Order.

(2) If all proprietary information contained in a document was submitted to the investigating authority by one participant, the document shall be served on that participant even if that participant has not been granted access to proprietary information under a Proprietary Information Access Order.

(3) A document containing personal information shall be filed under seal in accordance with Rule 34 and shall be served only on persons or participants who have been granted access to the information under an order of the committee.

38. If proprietary, privileged, or personal information is disclosed to a person in an extraordinary challenge proceeding, the person shall not:

(a) file, serve, or otherwise communicate the proprietary, privileged, or personal information by unsecure electronic means except as authorized by the terms of a Proprietary Information Access Order; or

(b) communicate the proprietary, privileged, or personal information by telephone.

39. Service on an investigating authority does not constitute service on a Party and service on a Party does not constitute service on an investigating authority.

Form and Content of Pleadings

40. (1) Every pleading filed in an extraordinary challenge proceeding shall contain the following information:

(a) the title of, and any Secretariat file number assigned for, the extraordinary challenge proceeding;

(b) a brief descriptive title of the pleading;

(d) the name of counsel of record for the participant;

(e) the service address, as defined in Rule 5; and

(f) the telephone number and electronic mail address of the counsel of record of the participant or, if the participant is not represented by counsel, the telephone number and electronic mail address of the participant.

(2) Every pleading filed in an extraordinary challenge proceeding shall be on paper 8

1/2

x 11 inches (216 millimeters by 279 millimeters) in size. The text of the pleading shall be printed, typewritten or reproduced legibly on one side only with a margin of approximately 1

1/2

(3) If a pleading is filed by electronic means, that pleading shall be formatted in a manner that, if printed, it would meet the requirements of subrule (2).

(4) Every pleading filed on behalf of a participant in an extraordinary challenge proceeding shall be signed by written or electronic signature, by counsel for the participant or, if the participant is not represented by counsel, by the participant.

Requests for an Extraordinary Challenge Committee

41. (1) If a Party, in its discretion, files with the responsible Secretary a Request for an Extraordinary Challenge Committee referred to in Article 10.12.13(a)(ii) (Review of Final Antidumping and Countervailing Duty Determinations) or (iii) (Review of Final Antidumping and Countervailing Duty Determinations) of the Agreement, the Party shall file the Request (model form available from the Secretariat) no later than 30 days after the issuance, pursuant to Rule 81(2) of the Article 10.12 Binational Panel Rules, of the Notice of Final Panel Action in the panel review that is the subject of the Request.

(2) If a Party, in its discretion, files with the responsible Secretary a Request for an Extraordinary Challenge Committee referred to in Article 10.12.13(a)(i) (Review of Final Antidumping and Countervailing Duty Determinations) of the Agreement, the Party shall file the Request (model form available from the Secretariat):

(a) no later than 30 days after the issuance, pursuant to Rule 81(2) of the Article 10.12 Binational Panel Rules, of the Notice of Final Panel Action in the panel review that is the subject of the Request; or

(b) subject to subrule (3), if the Party gained knowledge of the action of the panelist giving rise to the allegation more than 30 days after the panel issued a Notice of Final Panel Action, no more than 30 days after gaining knowledge of the action of the panelist.

(3) No Request for an Extraordinary Challenge Committee referred to in subrule (2) may be filed if two years or more have elapsed since the effective date of the Notice of Completion of Panel Review.

(4) Notwithstanding subrules (1) to (3), the running of the time periods referred to in this section:

(a) shall be suspended in the circumstances set out in Article 10.13.11(b) (Safeguarding the Panel Review System) of the Agreement; and

(b) if suspended under subrule (4)(a), shall be resumed in the circumstances set out in Articles 10.13.12 (Safeguarding the Panel Review System) and 10.13.13 (Safeguarding the Panel Review System) of the Agreement.

42. (1) Subject to subrule (2), every Request for an Extraordinary Challenge Committee shall be in writing and shall:

(a) include a concise statement of the allegations relied on, together with a concise statement of how the actions alleged have materially affected the panel's decision and the way in which the integrity of the panel review process is threatened;

(b) contain the name of the Party in the panel review, name of counsel, service address, telephone number, and electronic mail address; and

(c) if the panel decision was made in Canada, state whether the Party filing the Request for an Extraordinary Challenge Committee:

(i) intends to use English or French in pleadings and oral proceedings before the committee, and

(ii) requests simultaneous translation of any oral proceedings.

(2) If a Request for an Extraordinary Challenge Committee contains an allegation referred to in Article 10.12.13(a)(i) (Review of Final Antidumping and Countervailing Duty Determinations) of the Agreement, the identity of the panelist against whom such an allegation is made shall be revealed only in a confidential annex filed together with the Request and shall be disclosed only in accordance with Rule 60.

43. (1) Every Request for an Extraordinary Challenge Committee (model form available from the Secretariat) shall be accompanied by:

(a) those items of the record of the panel review relevant to the allegations contained in the Request; and

(b) an Index of the items referred to in subrule (1)(a).

(2) If a Request contains an allegation referred to in Article 10.12.13(a)(i) (Review of Final Antidumping and Countervailing Duty Determinations) of the Agreement, the Request shall be accompanied by, in addition to the requirements of subrule (1),

(a) any other material relevant to the allegations contained in the Request; and

(b) if the Request is filed more than 30 days after the panel issued a Notice of Final Panel Action pursuant to Rule 81(2) of the Article 10.12 Binational Panel Rules, an affidavit certifying that the Party gained knowledge of the action of the panelist giving rise to the allegation no more than 30 days preceding the filing of the Request.

Notices of Appearance

44. (1) No later than 10 days after the Request for an Extraordinary Challenge Committee is filed, a Party or participant in the panel review who proposes to participate in the extraordinary challenge proceeding shall file with the responsible Secretariat a Notice of Appearance (model form available from the Secretariat) containing the following information:

(a) the name of the Party or participant, name of counsel, service address, telephone number and electronic mail address;

(b) a statement as to whether appearance is made:

(i) in support of the Request, or

(ii) in opposition to the Request; and

(c) if the extraordinary challenge is in respect of a panel review of a final determination made in Canada, a statement as to whether the person filing the Notice of Appearance:

(i) intends to use English or French in pleadings and oral proceedings before the committee, and

(ii) requests simultaneous translation of any oral proceedings.

(2) If a Party or participant referred to in subrule (1) proposes to rely on a document in the record of the panel review that is not specified in the Index filed with the Request for an Extraordinary Challenge Committee, the Party or participant shall file, with the Notice of Appearance:

(a) the document; and

(b) a statement identifying the document and requesting its inclusion in the extraordinary challenge record.

(3) On receipt of a document referred to in subrule (2), the responsible Secretary shall include the document in the extraordinary challenge record.

45. (1) No later than 10 days after a Request for an Extraordinary Challenge Committee referred to in Article 10.12.13(a)(i) (Review of Final Antidumping and Countervailing Duty Determinations) of the Agreement is filed, a panelist against whom an allegation contained in the Request is made and who proposes to participate in the extraordinary challenge proceeding:

(a) must file a Notice of Appearance;

(b) may file, under seal, documents to be included in the extraordinary challenge record relevant to the panelist's defense against the allegation; and

ex parte

motion requesting that the extraordinary challenge proceeding be conducted in camera.

(2) If a committee issues an order pursuant to subrule 49(1)(a), a panelist

who filed documents described in subrule (1)(b) may, no later than five days after issuance of the order, withdraw any of those documents.

(3) If a panelist withdraws documents pursuant to subrule (2), the committee shall not consider those documents.

Filing and Content of Briefs and Appendices

46. (1) The Party who has filed the Request for an Extraordinary Challenge Committee and every participant who has filed a Notice of Appearance under subrule 44(1)(b)(i) shall file a brief, setting forth grounds and arguments in support of the Request, no later than 21 days after the Request for an Extraordinary Challenge Committee is filed.

(2) Every participant who has filed a Notice of Appearance under subrule 44(1)(b)(ii) shall file a brief, setting forth grounds and arguments in opposition to the Request for an Extraordinary Challenge Committee, no later than 21 days after the expiration of the time period for filing of briefs referred to in subrule (1).

(3) The Party who has filed the Request for an Extraordinary Challenge Committee and every participant who has filed a Notice of Appearance under subrule 44(1)(b)(i) may file a brief, replying to the grounds and arguments set forth in the briefs filed pursuant to subrule (2), no later than 10 days after the expiration of the time period for filing of briefs referred to in subrule (2). Reply briefs shall be limited to rebuttal of matters raised in the briefs filed pursuant to subrule (2).

(4) Every brief filed under this Rule shall be in the form required by Rule 47.

(5) Appendices shall be filed with the briefs.

47. (1) Briefs shall contain information, in the following order, divided into five parts:

Part I

(a) a table of contents; and

(b) a table of authorities cited:

Part II: A Statement of the Case

This Part shall contain a concise statement of the relevant facts with references to the panel record by page and, if applicable, by line.

Part III: A Statement of the Issues

(a) in the brief of the Party who files the Request for an Extraordinary Challenge Committee, this part shall contain a concise statement of the issues; and

(b) in the brief of any other participant, this part shall contain a concise statement of the position of the participant with respect to the issues.

Part IV: Argument

This Part shall consist of the argument, setting out concisely the points of law relating to the issues, with applicable citations to authorities and the panel record.

Part V: Relief

This Part shall consist of a concise statement precisely identifying the relief requested.

(2) Paragraphs in Parts I to V of a brief may be numbered consecutively.

(3) Authorities referred to in the briefs shall be included in an appendix, which shall be organized as follows: a table of contents, copies of all treaty and statutory references, references to regulations, cases primarily relied on in the briefs, set out alphabetically, all documents relied on from the panel record, and all other materials relied on.

Motions

48. (1) Motions, other than motions referred to in subrule 45(1)(c), may be considered at the discretion of the committee.

(2) A committee may dispose of a motion based upon the pleadings filed on the motion.

(3) A committee may hear oral argument in person or, subject to subrule 38(b), direct that a motion be heard by means of a telephone or video conference call with the participants.

Part III: Conduct of Oral Proceedings (Rules 49-52)

49. (1) The order of a committee on a motion referred to in subrule 45(1)(c) shall set out:

(a) that the proceedings shall not be held in camera; or

(b) that the proceedings shall be held in camera; and

(i) that all the participants shall keep confidential all information received with respect to the extraordinary challenge proceeding and shall use the information solely for the purposes of the proceeding, and

(ii) which documents containing personal information the responsible Secretary shall serve under seal and on whom the documents shall be served.

(2) The responsible Secretary shall not serve any documents containing personal information until the time period for withdrawal of any documents pursuant to subrule 45(2) has expired.

50. A committee may decide the procedures to be followed in the extraordinary challenge proceeding and may, for that purpose, hold a pre-hearing conference to determine such matters as the presentation of evidence and of oral argument.

51. The decision as to whether oral argument will be heard shall be in the discretion of the committee.

Oral Proceedings in Camera

52. During that part of oral proceedings in which proprietary information or privileged information is presented, a committee shall not permit any person other than the following persons to be present:

(a) the person presenting the proprietary information or privileged information;

(b) a person who has been granted access to the proprietary information or privileged information under a Proprietary Information Access Order or an order of the panel or committee;

(c) in the case of privileged information, a person as to whom the confidentiality of the privileged information has been waived; and

(d) officials of, and counsel for, the investigating authority.

Part IV: Responsibilities of the Secretariat (Rules 53-64)

53. The normal business hours of the Secretariat, during which the offices of the Secretariat shall be open to the public, shall be from 9:00 a.m. to 5:00 p.m. on each weekday other than, in the case of the:

(a) Canadian Section of the Secretariat, legal holidays of that Section;

(b) Mexican Section of the Secretariat, legal holidays of that Section; and

54. On the completion of the selection of the committee members, the responsible Secretary must notify the participants and the other involved Secretary of the names of the committee members.

55. The responsible Secretary shall provide administrative support for each extraordinary challenge proceeding and shall make the arrangements necessary for meetings and any oral proceedings, including, if required, interpreters to provide simultaneous translation.

56. Each involved Secretary must maintain a file for each extraordinary

challenge, comprised of either the original or a copy of all documents filed, whether or not filed in accordance with these Rules.

57. The responsible Secretary shall forward to the other involved Secretary a copy of all documents filed with the responsible Secretary and of all orders and decisions issued by a committee.

58. If under these Rules a responsible Secretary is required to publish a notice or other document in the official publication of the involved Parties, the responsible Secretary and the other involved Secretary shall cause the notice or the other document to be published in the official publication of the country in which that Section of the Secretariat is located.

59. (1) If a document containing proprietary information or privileged information is filed with the responsible Secretariat, each involved Secretary shall ensure that:

(a) the document is stored, maintained, handled, and distributed in accordance with the terms of an applicable Proprietary Information Access Order;

(b) the inner wrapper or cover sheet of the document is clearly marked to indicate that it contains proprietary information or privileged information; and

(i) in the case of proprietary information, officials of, and counsel for, the investigating authority, the person who submitted the proprietary information to the investigating authority and counsel of record for that person, and any persons who have been granted access to the information under a Proprietary Information Access Order, and

(ii) in the case of privileged information relied upon in an extraordinary challenge of a decision of a panel with respect to a final determination made in the United States, committee members and their assistants and persons with respect to whom the panel ordered disclosure of the privileged information under Rule 56 of the Article 10.12 Binational Panel Rules, if those persons have filed with the responsible Secretariat a Proprietary Information Access Order with respect to the document.

(2) If a document containing personal information is filed with the responsible Secretariat, each involved Secretary shall ensure that:

(a) the document is stored, maintained, handled, and, distributed in accordance with the terms of any applicable Proprietary Information Access Order;

(b) the inner wrapper or cover sheet of the document is clearly marked to indicate that it contains personal information; and

60. No document filed in an extraordinary challenge proceeding shall be removed from the offices of the Secretariat except in the ordinary course of the business of the Secretariat or pursuant to the direction of a committee.

61. (1) Each involved Secretary shall permit access by any person to information in the file of an extraordinary challenge proceeding that is not proprietary information, privileged information or personal information.

(2) Each involved Secretary shall, in accordance with the terms of any applicable Proprietary Information Access Order or order of a panel or committee, permit access to proprietary information, privileged information or personal information in the file of an extraordinary challenge proceeding.

(3) Each involved Secretary shall, on request and on payment of the prescribed fee, provide copies of information in the file of an extraordinary challenge proceeding to any person who has been given access to that information.

62. (1) If a Request for an Extraordinary Challenge Committee pursuant to Article 10.12.13(a)(ii) or (iii) (Review of Final Antidumping and Countervailing Duty Determinations) of the Agreement is filed with the responsible Secretariat, the responsible Secretary shall, upon receipt thereof,

(a) forward a copy of the Request and Index to the other involved Secretary; and

(b) serve a copy of the Request and Index on the other involved Party and on the participants in the panel review, together with a statement setting out the date on which the Request was filed and stating that all briefs of:

(i) the Party who has filed the Request and of every participant who files a Notice of Appearance in support of the Request shall be filed no later than 21 days after the date of filing of the Request,

(ii) every participant who files a Notice of Appearance in opposition to the Request shall be filed no later than 21 days after the expiration of the time period, referred to in subrule (1)(b)(i), for filing of briefs, and

(iii) the Party who has filed the Request and of every participant who files a brief under subrule (1)(b)(i) in reply to the grounds and arguments set forth in the briefs filed pursuant to subrule (1)(b)(ii), shall be filed no later than 10 days after the expiration of the time period, referred to in subrule (1)(b)(ii), for filing of briefs.

(2) If a Request for an Extraordinary Challenge Committee pursuant to Article 10.12.13(a)(i) (Review of Final Antidumping and Countervailing Duty Determinations) of the Agreement is filed, the responsible Secretary shall, upon receipt thereof,

(a) forward a copy of the Request, Index and annex to the other involved Secretary; and

(b) serve a copy of the Request, Index and annex on the other involved Party, on the panelist against whom the allegation contained in the Request is made and on the participants in the panel review, together with a statement setting out the date on which the Request was filed and stating that all briefs of:

(iii) the Party who has filed the Request and of every participant who files a brief under subrule (2)(b)(i) in reply to the grounds and arguments set forth in the briefs filed pursuant to subrule (2)(b)(ii) shall be filed no later than 10 days after the expiration of the time period, referred to in subrule (2)(b)(ii), for filing of briefs.

(3) The responsible Secretary must serve orders and decisions of a committee and Notices of Completion of Extraordinary Challenge on the participants.

(4) If the decision of a committee referred to in subrule (3) relates to a panel review of a final determination made in Canada, the decision shall be served by registered mail.

63. The responsible Secretary must cause Notice of a Final Decision of a committee issued pursuant to Rule 67, and any order that the committee directs the Secretary to publish, to be published in the official publications of the involved Parties.

64. If the time period fixed for filing an

ex parte

motion referred to in subrule 45(1)(c) has expired, the responsible Secretary shall serve on all participants:

(a) if no motion is filed pursuant to that subrule, the documents referred to in Rules 43 and 45;

(b) if the committee issues an order referred to in subrule 49(1)(a), the documents referred to in Rules 43 and 45 in accordance with any order of the committee; and

(c) if the committee issues an order referred to in subrule 49(1)(b), the documents referred to in Rules 43 and 45, in accordance with subrule 49(1)(b)(ii) and any order made by the committee.

Part V: Orders and Decisions (Rules 65-67)

65. All orders and decisions of a committee shall be made by a majority of the votes of all committee members.

66. (1) If a participant files a Notice of Motion requesting dismissal of an extraordinary challenge proceeding, the committee may issue an order dismissing the proceeding.

(2) If all the participants consent to the motion referred to in subrule (1) and an affid

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