North American Free Trade Agreement: Rules of Procedure for Article 1905 Special Committees; Notice DEPARTMENT OF COMMERCE

SUMMARY: Canada, Mexico, and the United States have negotiated the

rules of procedure for Article 1905 Special Committees. These rules

apply to special committee proceedings conducted pursuant to Article

1905 of the Agreement, unless the involved Parties otherwise agree.

EFFECTIVE DATE: January 1, 1994, the date of the entry into force of

the North American Free Trade Agreement (``Agreement''). These Rules of

Procedure shall apply to all special committee proceedings commenced on

or after the effective date.

FOR FURTHER INFORMATION CONTACT: Lisa B. Koteen, Senior Attorney, Stacy

J. Ettinger, Attorney-Advisor, or Terrence J. McCartin, Attorney-

Advisor, Office of the Chief Counsel for Import Administration, room B-

099, U.S. Department of Commerce, 14th and Constitution Avenue, NW.,

Washington, DC 20230; telephone: (202) 482-0836, (202) 482-4618, or

(202) 482-5031, respectively. For procedural matters involving cases

under panel review, contact James R. Holbein, United States Secretary,

NAFTA Secretariat, room 2061, U.S. Department of Commerce, 14th and

Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-

5438; fax: (202) 482-0148.

SUPPLEMENTARY INFORMATION:

Background

Chapter Nineteen of the North American Free Trade Agreement

(``Agreement'') 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

expeditiously review final determinations to determine whether they are

consistent with the antidumping or countervailing duty law of the

importing country.

In instances in which one of the Parties to the Agreement alleges,

pursuant to Article 1905.1 of the Agreement, that the application of

another Party's domestic law (a) has prevented the establishment of a

panel; (b) has prevented a panel from rendering a final decision; (c)

has prevented the implementation of a panel's decision or denied it

binding force and effect; or (d) has resulted in a failure to provide

opportunity for proper review of a final determination by a panel or a

court of competent jurisdiction, that Party may request the

establishment of a special committee.

Title IV of the North American Free Trade Agreement Implementation

Act of 1993, Public Law No. 103-182, 107 Stat. 2057, amends United

States law to implement Chapter Nineteen of the Agreement.

The Article 1905 Special Committee Rules are intended to give

effect to the special committee provisions of Chapter Nineteen of the

Agreement by setting forth the procedures for commencing, conducting,

and completing special committee proceedings. These rules are the

result of negotiations among Canada, Mexico, and the United States in

compliance with the terms of the Agreement.

North American Free Trade Agreement Rules of Procedure for Article 1905

Special Committees

Contents

Rule

1. Short Title

2. Statement of General Intent

3. Interpretation

4. Operation of the Special Committee

11. Service of Documents

12. Written Submissions

18. Hearings

23. Language of Proceedings

25. Special Committee Deliberations

26. Reports

30. Reconvening of Special Committee

36. Completion of Special Committee Proceedings

38. Confidentiality

40. Ex Parte Contacts

41. Extension and Computation of Time

43. Responsibilities of the Responsible Secretary

45. Death or Incapacity

The Parties,

Having regard to Chapter Nineteen of the North American Free Trade

Agreement between Canada, the United Mexican States and the United

States of America;

Acting pursuant to Article 1905.6 of the Agreement;

Adopt the following Rules of Procedure, which shall come into force

on the same day as the Agreement enters into force and from that day

shall govern all special committee proceedings conducted pursuant to

Article 1905 of the Agreement.

Short Title

1. These rules may be cited as the Article 1905 Special Committee

Rules.

Statement of General Intent

2. These rules shall apply to special committee proceedings

conducted pursuant to Article 1905 of the Agreement, unless the

involved Parties otherwise agree. Where a procedural question arises

that is not covered by these rules, a special committee may adopt an

appropriate procedure that is not inconsistent with the Agreement. In

the event of any inconsistency between the provisions of these rules

and the Agreement, the Agreement shall prevail.

Interpretation

3. In these rules,

``Agreement'' means the North American Free Trade Agreement;

``Complaining Party'' means a Party who requests, pursuant to

Article 1905.2 of the Agreement, that a special committee be

established;

``involved Secretariat'' means the responsible Secretariat or the

section of the Secretariat located in the country of the other involved

Party;

``legal holiday'' means

(a) with respect to the Canadian Section of the Secretariat, every

Saturday and Sunday, New Year's Day (January 1), Good Friday, Easter

Monday, Victoria Day, Canada Day (July 1), Labour Day (first Monday in

September), Thanksgiving Day (second Monday in October), Remembrance

Day (November 11), Christmas Day (December 25), Boxing Day (December

26), any other day fixed as a statutory holiday by the Government of

Canada or by the province in which the section is located and any day

on which the offices of the Canadian Section of the Secretariat are

officially closed in whole or in part,

(b) with respect to the Mexican Section of the Secretariat, every

Saturday and Sunday, New Year's Day (January 1), Constitution Day

(February 5), Benito Juarez's Birthday (March 21), Labor Day (May 1),

Battle of Puebla (May 5), Independence Day (September 16),

Congressional Opening Day (November 1), Revolution Day (November 20),

Transmission of the Federal Executive Branch (every six years on

December 1), Christmas Day (December 25), any day designated as a

statutory holiday by the Federal Laws or, in the case of Ordinary

Elections, by the Local Electoral Laws and any day on which the offices

of the Mexican Section of the Secretariat are officially closed in

whole or in part, and

(c) with respect to the United States Section of the Secretariat,

every Saturday and Sunday, New Year's Day (January 1), Martin Luther

King's Birthday (third Monday in January), Presidents' Day (third

Monday in February), Memorial Day (last Monday in May), Independence

Day (July 4), Labor Day (first Monday in September), Columbus Day

(second Monday in October), Veterans' Day (November 11), Thanksgiving

Day (fourth Thursday in November), Christmas Day (December 25), any day

designated as a holiday by the President or the Congress of the United

States and any day on which the offices of the Government of the United

States located in the District of Columbia or the offices of the United

States Section of the Secretariat are officially closed in whole or in

part;

``Mexico'' means the United Mexican States;

``official publication'' means

(a) in the case of the Government of Canada, the Canada Gazette,

(b) in the case of the Government of Mexico, the Diario Oficial de

la Federacion, and

(c) in the case of the Government of the United States, the Federal

Register;

``Party'' means the Government of Canada, the Government of Mexico

or the Government of the United States;

``Responding Party'' means the Party against whom an allegation is

made under Article 1905.1 of the Agreement;

``responsible Secretariat'' means the section of the Secretariat of

the Responding Party;

``responsible Secretary'' means the Secretary of the responsible

Secretariat;

``Secretariat'' means the Secretariat established pursuant to

Article 2002 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;

``special committee'' means a special committee established

pursuant to Article 1905 of the Agreement;

``United States'' means the United States of America.

Operation of the Special Committee

4. (1) Subject to subrule (2), unless the involved Parties

otherwise agree, special committee meetings shall take place at the

offices of the responsible Secretariat or at such alternative location

as the committee members may agree.

(2) A special committee may conduct meetings or exchange

information by any means, including by means of a telephone conference

call or facsimile or computer transmission.

5. The members of a special committee shall select from among

themselves a chairperson, who shall preside over all meetings and

hearings of the special committee.

6. The chairperson of the special committee shall fix the date and

time of its meetings in consultation with other special committee

members and the responsible Secretary.

7. All reports, findings, determinations and decisions of a special

committee shall be made or issued by a majority vote of all members of

the special committee.

8. A special committee proceeding commences on the day on which a

request for a special committee is filed with the responsible

Secretariat and terminates on the day on which a notice of completion

of the special committee proceeding is issued pursuant to rule 36.

9. (1) A special committee may adopt internal procedures of its

own, not inconsistent with these rules, for routine administrative

matters.

(2) A special committee may delegate to its chairperson the

authority to make decisions regarding internal procedures or routine

administrative matters.

10. The terms of reference of a special committee shall be limited

to

(a) making a finding as to whether any allegations set out in

Article 1905.1 of the Agreement made by the Complaining Party regarding

the application of the Responding Party's domestic law are

substantiated;

(b) determining whether a suspension of benefits by the Complaining

Party pursuant to Article 1905.8(b) of the Agreement is manifestly

excessive; and

(c) determining whether the Responding Party has corrected a

problem with respect to which the special committee has made an

affirmative finding.

Service of Documents

11. A document to be filed by an involved Party with the

responsible Secretariat shall

(a) be served on the other involved Party by express courier,

overnight mail or by any other means agreed upon by the involved

Parties; and

(b) when filed, be accompanied by a proof of service certifying

that the document has been served on the other involved Party,

indicating the manner, date and time of service.

Written Submissions

12. All written submissions and responses filed with a responsible

Secretariat shall be accompanied by four copies thereof.

13. (1) A request for the establishment of a special committee

under Article 1905.2 of the Agreement shall be made by filing the

request with the responsible Secretariat.

(2) On the filing of a request under subrule (1), the responsible

Secretary and the other involved Secretary shall cause a notice of the

filing of the request to be published in the official publications of

the countries in which their sections of the Secretariat are located.

14. The written initial submission of a Complaining Party shall be

filed with the responsible Secretariat no later than 10 days after the

date on which the last member of the special committee is appointed.

15. A written response by the Responding Party shall be filed with

the responsible Secretariat no later than 20 days after the filing of

the initial submission of the Complaining Party.

16. A special committee may allow each involved Party the

opportunity to make an equal number of further written submissions,

within such time as may be fixed by the special committee, having

regard to the time limits fixed by Annex 1905.6 to Chapter Nineteen of

the Agreement.

17. The responsible Secretary shall forward to the other involved

Secretary a copy of all documents filed with the responsible

Secretariat and of all reports, findings, determinations and decisions

issued by the special committee.

Hearings

18. (1) At least one hearing shall be held before the special

committee presents its initial report.

(2) The date and time of hearings shall be fixed by the special

committee in consultation with the involved Parties and the responsible

Secretary.

(3) A verbatim transcript shall be taken of all hearings.

19. Unless the involved Parties otherwise agree, special committee

hearings shall take place at the offices of the responsible

Secretariat.

20. (1) All special committee members must be present during

hearings.

(2) No later than five days before the date of a hearing, each

involved Party shall deliver to the responsible Secretariat and to the

other involved Party a list of the names of the persons who will

present oral arguments at the hearing on behalf of that Party and of

other representatives or advisers of the Party who will be attending

the hearing.

21. Oral proceedings shall be conducted in the following order,

ensuring that each involved Party is given equal time:

(a) the argument of the Complaining Party;

(b) the argument of the Responding Party;

(c) a reply of the Complaining Party; and

(d) a counter-reply of the Responding Party.

22. At the request of an involved Party or at the initiative of the

special committee, with the agreement of both involved Parties and

subject to such terms and conditions as both involved Parties may agree

upon, the special committee may call upon any person to provide

information concerning the matter in dispute.

Language of Proceedings

23. Written and oral proceedings may be in either English, French

or Spanish, or in any combination thereof.

24. Unless the involved Parties otherwise agree, the reports,

findings, determinations and decisions of a special committee shall be

issued in an official language of the Responding Party and, if

necessary, shall be promptly translated into an official language of

the other involved Party.

Special Committee Deliberations

25. (1) The deliberations of a special committee shall take place

in private and remain confidential.

(2) Only special committee members may take part in the

deliberations of a special committee.

(3) Staff of the involved Secretariats, assistants to the special

committee members and any necessary support staff may be present during

deliberations of a special committee by permission of the special

committee.

Reports

26. In accordance with paragraph (b) of Annex 1905.6 to Chapter

Nineteen of the Agreement, a special committee shall prepare and

present to the involved Parties an initial report, wherever

practicable, within 60 days after the appointment of the last member of

the special committee.

27. The involved Parties may comment in writing or, at the request

of the special committee, orally, on an initial report of a special

committee within 14 days after the initial report is presented.

28. An initial report of a special committee shall be kept

confidential.

29. (1) A special committee shall issue a final report, together

with any separate opinions rendered by individual committee members,

within 30 days after the presentation of its initial report.

(2) Any separate opinions rendered by individual special committee

members shall be anonymous.

(3) On the issuance of a final report under subrule (1), the

responsible Secretary shall immediately forward copies of the report to

the involved Parties.

(4) Unless the involved Parties otherwise agree,

(a) within 10 days after the final report is forwarded to the

involved Parties, the involved Secretaries shall cause a notice that a

final report has been issued by a special committee to be published in

the official publications of the involved Parties, indicating that

copies of the report and of any separate opinions by individual members

or written views of either involved Party are available to the public

at the offices of the responsible Secretariat; and

(b) the responsible Secretariat shall make available to the public

copies of the final report of a special committee, together with any

separate opinions by individual members and any written views that

either involved Party may wish to be published.

Reconvening of Special Committee

30. Where a special committee has made an affirmative finding with

respect to grounds specified in Article 1905.1 of the Agreement, a

Responding Party may request that the special committee be reconvened

by filing a request with the responsible Secretariat

(a) where the Responding Party is requesting that the special

committee determine whether the Responding Party has corrected a

problem with respect to which the special committee has made an

affirmative finding, at any time after the affirmative finding was

made; or

(b) where the Responding Party is requesting that the special

committee determine whether a suspension of benefits by the Complaining

Party under Article 1905.8 of the Agreement is manifestly excessive, at

any time after the suspension was made.

31. (1) Where a request referred to in subrule 30(a) is filed

before the fortieth day of the 60-day consultation period referred to

in Article 1905.8 of the Agreement, the special committee shall

endeavour to present a report containing its determination to the

involved Parties before the sixtieth day of that period, and may for

that purpose make such orders as to filing of written submissions and

responses and the holding of a hearing as the special committee

considers necessary under the circumstances.

(2) Rules 32 to 34 apply with respect to requests referred to in

subrule 30(a) that are filed on or after the fortieth day of the 60-day

consultation period referred to in Article 1905.8 and to requests

referred to in subrule 30(b).

32. (1) At the time of filing a request pursuant to rule 30, the

Responding Party shall file a written submission in support of the

request.

(2) A Complaining Party shall file a written response to a

submission referred to in subrule (1) within 20 days after that

submission is filed.

33. (1) At the time of filing a request pursuant to rule 30 or a

written response pursuant to subrule 32(2), an involved Party may

request an opportunity to present oral argument in support of its

request or response.

(2) Where an involved Party requests an opportunity to present oral

argument pursuant to subrule (1), the special committee may hold a

hearing, at which both involved Parties shall be granted an equal

opportunity to present oral argument.

34. The special committee shall, within 45 days of the filing of a

request pursuant to rule 30, present to the involved Parties a written

report containing its determination pursuant to Article 1905.10 of the

Agreement.

35. Subrules 29 (2) to (4) apply, with such modifications as are

necessary, to reports referred to in subrule 31(1) and rule 34.

Completion of Special Committee Proceedings

36. (1) On completion of a special committee proceeding, as

determined by the special committee in consultation with the involved

Parties, the special committee shall request the responsible Secretary

to issue a notice of completion of the proceeding.

(2) A notice referred to in subrule (1) is effective the day after

it is issued.

(3) The responsible Secretary shall cause a notice issued under

subrule (1) to be published in the official publications of the

involved Parties.

37. The members of a special committee are discharged from their

duties on the day on which a notice of completion of the special

committee proceeding is effective.

Confidentiality

38. All written submissions to, and communications with, a special

committee and all documents filed with the involved Secretariats shall

be kept confidential.

39. (1) All hearings of a special committee, and all transcripts

thereof, shall be kept confidential.

(2) It is the responsibility of each involved Party to ensure that

the persons attending oral proceedings of a special committee on its

behalf maintain the confidentiality of the proceedings.

Ex Parte Contacts

40. (1) No special committee or member of a special committee shall

meet or contact one involved Party in the absence of the other involved

Party.

(2) No special committee member shall discuss a matter before the

special committee with the involved Parties in the absence of other

special committee members.

Extension and Computation of Time

41. A time period fixed by these rules may be extended with the

consent of both involved Parties or by a decision of a special

committee.

42. (1) In computing any time period fixed in or under these rules,

the day or date 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) Where the last day of a time period computed in accordance with

subrule (1) falls on a legal holiday of the responsible Secretariat,

that day and any other legal holidays of the responsible Secretariat

immediately following that day shall be excluded from the computation.

(3) In computing any time period of five days or less fixed in

these rules or by a decision of a special committee, any legal holiday

that falls within the time period shall be excluded from the

computation.

Responsibilities of the Responsible Secretary

43. The responsible Secretary shall provide administrative support

for each special committee proceeding and shall make the arrangements

necessary for the hearings and meetings of the special committee,

including the provision of court reporters and, if required,

interpreters to provide simultaneous translation.

44. The responsible Secretary shall maintain a file for each

special committee proceeding, comprised of the original or a copy of

all documents filed, whether or not filed in accordance with these

rules, in the special committee proceeding.

Death or Incapacity

45. Where a special committee member is disqualified, dies or

otherwise becomes unable to fulfil special committee duties,

(a) special committee proceedings and computations of time shall be

suspended, pending the appointment of a substitute member; and

(b) where the disability, disqualification or death occurs after

oral argument has begun, the chairperson may order that the matter be

reheard, on such terms as are appropriate, after selection of a

substitute member.

Dated: February 10, 1994.

Timothy J. Hauser,

Deputy Under Secretary for International Trade.

[FR Doc. 94-3931 Filed 2-22-94; 8:45 am]

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