ITC FILES RESPONSE TO SOFTWOOD LUMBER BINATIONAL PANEL DECISION
WITH NAFTA SECRETARIAT
The U.S. International Trade Commission today filed its response to the August 31, 2004, decision and order of the United States-Canada Binational Panel in Softwood Lumber from Canada, Inv. Nos. 701-TA-414 and 731-TA-928.
The Commission, by a 5-to-1 vote, concluded as follows:
The Panel's Decision and Order of August 31, 2004, can only be seen as a
reversal of the Commission's affirmative determination of threat of material
injury, despite the fact that neither the NAFTA nor U.S. law gives the Panel
authority to reverse the Commission's determination in these circumstances. As
such, the Panel's decision signals the end of this Panel proceeding.
Because the Commission respects and is bound by the NAFTA dispute
settlement process, we issue a determination, consistent with the Panel's decision,
that the U.S. softwood lumber industry is not threatened with material injury by
reason of subject imports from Canada. In so doing, we disagree with the Panel's
view that there is no substantial evidence to support a finding of threat of material
injury(1) and we continue to view the Panel's decisions throughout this proceeding
as overstepping its authority, violating the NAFTA, seriously departing from
fundamental rules of procedure, and committing legal error.
(1) Commissioner Pearson has not made a determination on the record in these
investigations and thus takes no position as to the content of the record or its ability to
support any particular determination.The Commission noted that "because the Panel has precluded the Commission from engaging in any analysis of substantive issues, the Commission has not reached and cannot reach any determination regarding whether there is substantial evidence to support this negative determination."
Vice Chairman Deanna Tanner Okun and Commissioners Marcia E. Miller, Jennifer A. Hillman, Charlotte R. Lane, and Daniel R. Pearson voted in the majority.
Chairman Koplan dissented from the determination of the Commission. While he generally joined in the Views of the Commission, he voted to affirm his earlier determination that the U.S. softwood industry is threatened with material injury by reason of imports of softwood lumber from Canada. He noted that the Commission's Views make clear that the enabling NAFTA Act, United States statutes and relevant case law, establish that the Panel lacks the authority to conduct an impermissible de novo review of the record and substitute its judgment for that of the Commission. The Panel's remand with specific instructions, which attempt to compel a reversal, exceeds the Panel's authority under both the substantial evidence standard and NAFTA. As such he could not accede to the Panel's instructions, which he is convinced are contrary to the law.
View the Commission's full opinion at:
ftp://www.usitc.gov/pub/reports/opinions/fremand3opin.pdf