II

106TH CONGRESS

2D SESSION S. 3216

To provide for review in the Court of International Trade of certain determinations of binational panels under the North American Free Trade

Agreement.

IN THE SENATE OF THE UNITED STATES

OCTOBER 18 (legislative day, SEPTEMBER 22), 2000

Mr. CRAIG (for himself and Mr. BAUCUS) introduced the following bill; which

was read twice and referred to the Committee on Finance

A BILL

To provide for review in the Court of International Trade

of certain determinations of binational panels under the

North American Free Trade Agreement.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Integrity of the United

5 States Courts Act of 2000’’.

6 SEC. 2. JUDICIAL REVIEW OF BINATIONAL PANEL DECI7 SIONS.

8 (a) IN GENERAL.—Subtitle A of title IV of the North

9 American Free Trade Agreement Implementation Act (19
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1 U.S.C. 3431 et seq.) is amended by inserting after section

2 404 the following new section:

3 ‘‘SEC. 404A. REVIEW OF BINATIONAL PANEL DETERMINA4 TIONS.

5 ‘‘(a) BASIS FOR REVIEW IN COURT OF INTER6 NATIONAL TRADE.—

7 ‘‘(1) IN GENERAL.—If, within 30 days after

8 publication in the Federal Register of notice that a

9 binational panel has issued a determination following

10 a review under article 1904 of a decision of a com11 petent investigating authority in the United States,

12 a party or person within the meaning of paragraph

13 5 of article 1904 alleges that—

14 ‘‘(A)(i) the determination of the panel was

15 based on a misinterpretation of United States

16 law;

17 ‘‘(ii) a member of a panel was guilty of a

18 gross misconduct, bias, or a serious conflict of

19 interest, or otherwise materially violated the

20 rules of conduct,

21 ‘‘(iii) the panel seriously departed from a

22 fundamental rule of procedure, or

23 ‘‘(iv) the panel manifestly exceeded its

24 powers, authority, or jurisdiction set out in arti-
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1 cle 1904, as in failing to apply the appropriate

2 standard of review, and

3 ‘‘(B) any of the actions described in sub4 paragraph (A) has materially affected the pan5 el’s decision and threatens the integrity of the

6 binational panel review process,

7 then such party or person may file an appeal with

8 the United States Court of International Trade,

9 seeking review of the binational panel determination,

10 pursuant to section 516A of the Tariff Act of 1930.

11 ‘‘(2) REVIEW IN COURT OF INTERNATIONAL

12 TRADE WHERE BINATIONAL PANEL DOES NOT

13 ACT.—If a request for a panel review has been made

14 under article 1904 and a panel is not convened with15 in 315 days of the request, the Party requesting the

16 panel review or person within the meaning of para17 graph 5 of article 1904 may file an appeal of the

18 antidumping or countervailing duty determination

19 with respect to which the request was filed with the

20 United States Court of International Trade.

21 ‘‘(b) DECISIONS OF THE COURT.—

22 ‘‘(1) IN GENERAL.—In any appeal filed under

23 subsection (a)(1) for review of a binational panel de24 termination, the Court of International Trade shall,

25 after examining the legal and factual analysis under-
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1 lying the findings and conclusions of the panel’s de2 cision, determine whether any of the actions de3 scribed in subsection (a)(1)(A) has been established.

4 If the court finds that any of those actions has been

5 established, the court shall vacate the original panel

6 decision and enter judgment accordingly. If the ac7 tions are not established, the court shall affirm the

8 original binational panel decision. Decisions of the

9 Court of International Trade under this section shall

10 be binding on the parties with respect to the matters

11 between the parties that were before the panel.

12 ‘‘(2) DECISIONS WHERE PANEL NOT CON13 VENED.—In the case of an appeal filed under sub14 section (a)(2) for review of a determination of a

15 competent investigating authority, the Court of

16 International Trade shall, after examining the legal

17 and factual analysis underlying the findings and

18 conclusions of the investigating authority’s deter19 mination, determine whether the determination was

20 made in accordance with article 1904. If the court

21 finds that the determination was not in accordance

22 with article 1904 or is not supported by the legal

23 and factual analysis, the court shall vacate the inves24 tigating authority’s determination and enter judg25 ment accordingly. If the court finds that the deter-
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1 mination was in accordance with article 1904 and is

2 supported by the legal and factual analysis, the

3 court shall affirm the investigating authority’s deter4 mination. Decisions of the Court of International

5 Trade under this section shall be binding on the par6 ties with respect to the matters between the parties

7 that would have been before a panel had the panel

8 been convened.

9 ‘‘(c) EXCLUSIVE JURISDICTION.—If a party or per10 son within the meaning of paragraph 5 of article 1904

11 timely files a notice of appeal to the Court of International

12 Trade pursuant to this section, then jurisdiction exclu13 sively resides with the United States Court of Inter14 national Trade, and such determinations are not subject

15 to review by an extraordinary challenge committee under

16 paragraph 13 of article 1904.

17 ‘‘(d) APPLICABILITY.—Subsections (a)(1), (b)(1),

18 and (c) apply to all goods from NAFTA countries which

19 were subject to an antidumping duty or countervailing

20 duty determination of a competent investigating authority

21 in the United States.’’.

22 (b) CONFORMING AMENDMENT.—The table of con23 tents of the North American Free Trade Implementation

24 Act is amended by inserting after the item relating to sec25 tion 404 the following:

‘‘Sec. 404A. Review of binational panel determinations.’’.
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1 SEC. 3. JURISDICTION OF THE COURT OF INTERNATIONAL

2 TRADE.

3 Section 516A of the Tariff Act of 1930 (19 U.S.C.

4 1516a) is amended—

5 (1) in subsection (a)(2)—

6 (A) in subparagraph (A)(i)(I), by striking

7 ‘‘or (viii)’’ and inserting ‘‘(viii), (ix), or (x)’’;

8 and

9 (B) in subparagraph (B), by adding at the

10 end the following:

11 ‘‘(ix) A final determination of a bina12 tional panel convened pursuant to article

13 1904 of the NAFTA.

14 ‘‘(x) A final determination of an in15 vestigating authority described in section

16 404A(a)(2) of the North American Free

17 Trade Agreement Implementation Act.’’;

18 (2) in subsection (a)(5), in the matter pre19 ceding subparagraph (A), by inserting ‘‘(other than

20 a determination described in subsection

21 (g)(3)(A)(vii))’’ after ‘‘apply’’; and

22 (3) in subsection (g)(3)(A)—

23 (A) in clause (v), by striking ‘‘or’’ at the

24 end;

25 (B) in clause (vi), by striking the period

26 and inserting ‘‘, or’’; and
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1 (C) by adding at the end the following:

2 ‘‘(vii) a determination of which either

3 a party or person within the meaning of

4 paragraph 5 of article 1904 of the NAFTA

5 has requested review pursuant to section

6 404A of the North American Free Trade

7 Agreement Implementation Act.’’.

8 SEC. 4. APPLICATION TO CANADA AND MEXICO.

9 Pursuant to article 1902 of the North American Free

10 Trade Agreement and section 408 of the North American

11 Free Trade Agreement Implementation Act, the amend12 ments made by this Act shall apply with respect to goods

13 from Canada and Mexico.

14 SEC. 5. EFFECTIVE DATE.

15 The amendments made by this Act shall apply to any

16 final determination of a binational panel convened pursu17 ant to article 1904 of the North American Free Trade

18 Agreement or to a final determination of a competent in19 vestigating authority with respect to which section

20 404A(a)(2) of the North American Free Trade Agreement

21 Implementation Act applies, notice of which is published

22 in the Federal Register on or after the date of enactment

23 of this Act.

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