Canada Softwood Lumber: I. Threat of Injury - Section 129 WTO Determination II. No Threat of Injury - Extraordinary Challenge Filed

ITC Finds "Threat of Injury" in Section 129 WTO Consistency Proceeding

According to an International Trade Commission (ITC) press release, on November 24, 2004, the ITC issued an affirmative determination in its Section 129 Consistency Proceeding regarding softwood lumber products from Canada, finding that a U.S. industry is threatened with material injury by reason of imports of softwood lumber products from Canada that the International Trade Administration (ITA) has determined are subsidized and sold in the U.S. at less than fair value.

The press release states that the ITC has submitted its determination to the U.S. Trade Representative (USTR), who will decide any further actions regarding this matter.

(In April 2004, a World Trade Organization (WTO) Dispute Settlement Panel (DSP) found that the ITC's actions in the underlying AD and CV injury investigations on softwood lumber products from Canada were not in conformity with U.S. obligations under the WTO.

In July 2004, the ITC was requested by USTR to make a Section 129 determination (pursuant to the Uruguay Rounds Agreement Act) that would render the ITC's actions in these investigations not inconsistent with the DSP's findings. In its Section 129 determination, the ITC states that it provided additional explanation and reasoning for its earlier threat of material injury determination, adding that this seemed to be what the WTO DSP was seeking.)

USTR Files NAFTA Extraordinary Challenge on ITC Remand Finding of "No Threat of Injury"

The ITA has published a notice stating that on November 24, 2004, the USTR filed a request for a NAFTA Extraordinary Challenge Committee (ECC) to review certain binational NAFTA panel decisions regarding softwood lumber products from Canada.

According to the notice, ECC review is also requested of the final affirmative threat of material injury made by the ITC respecting softwood lumber products from Canada.

(According to the ITC, it had found "no threat of material injury" upon remand only because the binational NAFTA Panel remand decision explicitly instructed them to do so. The ITC had stated it disagrees with the panel's view that there is no substantial evidence to support a finding of threat of material injury, and that it continues to view the panel as overstepping its authority.)

(Sources at the ITC state that the Section 129 Consistency Proceeding regarding the findings of the WTO DSP are separate and distinct from the NAFTA Panel/ECC proceedings.)

Section 129 Proceeding -

(See ITT's Online Archives or 08/23/04 news, 04082320 for BP summary on the institution of this Section 129 proceeding.)

ITC press release on Section 129 determination (dated 11/24/04, 04-120) available at http://www.usitc.gov/ext_relations/news_release/2004/er1124bb1.htm

Text of ITC's Section 129 determination, available at http://www.usitc.gov/fopin.129.pdf

NAFTA Panel ECC -

(See ITT's Online Archives or 09/14/04 news, 04091435 for BP summary of ITC's response to the NAFTA Panel remand.)

ITC press release on its remand threat of injury determination in response to the NAFTA panel decision on softwood lumber from Canada (dated 09/10/04), available at http://www.usitc.gov/ext_relations/news_release/2004/er0910bb1.htm

ITA notice requesting ECC on ITC's remand determination (FR Pub 12/03/04, Case no. ECC-2004-1904-01USA), available at http://a257.g.akamaitech.net/7/257/2422/06jun20041800/edocket.access.gpo.gov/2004/pdf/04-26584.pdf

ITA "Timken" notice that ITC's remand determination is not "in harmony" with the ITC's original determination (FR Pub 11/30/04), available at http://a257.g.akamaitech.net/7/257/2422/06jun20041800/edocket.access.gpo.gov/2004/pdf/E4-3385.pdf