The commerce dept. decision is as crooked as one of those yellow pine boards you like to talk about. The government not "of the people", but of the lobbyists.
acah.org
American Consumers for Affordable Homes: Consumers Respond to Congressional Letter on Importance of NAFTA Dispute Resolution Process
Thursday December 16, 2:31 pm ET
WASHINGTON, Dec. 16 /PRNewswire/ -- The following letter has been delivered to the leadership of the U.S. Congress, and Members. It is a response to a letter sent to them from former Attorney General Richard Thornburg in which he challenged the dispute resolution process under the NAFTA on behalf of his client, the Coalition for Free Lumber Trade. ACAH concluded that there are far too many incorrect assertions that needed to be challenged immediately. Clearly, this letter was written because the dispute settlement in the Canadian softwood lumber import duty case has continually gone against the U.S. Department of Commerce and the U.S. International Trade Commission, and is likely to conclude that, once again, the duties were not supportable under the trade agreement.
December 14, 2004
BY HAND DELIVERY
Honorable J. Dennis Hastert Honorable Bill Frist
Speaker Majority Leader
United States House of Representatives United States Senate
H-232 Capitol Building S-230 Capitol Building
Washington, D.C. 20515-6501 Washington, D.C. 20510-7010
Re: NAFTA Chapter 19
Dear Speaker Hastert and Senator Frist:
I am writing on behalf of the American Consumers for Affordable Homes
("ACAH") in response to the letter you received from Richard Thornburgh,
dated November 22, 2004, concerning the dispute resolution system under
Chapter 19 of the North American Free Trade Agreement ("NAFTA"). Chapter
19 was constitutional when Congress passed and President Reagan signed the
United States - Canada Free-Trade Agreement Implementation Act of 1988
("FTA"). It was constitutional when Congress passed and President Clinton
signed the NAFTA Implementation Act of 1994. It remains constitutional
today.
Mr. Thornburgh's constitutional claims appear to relate exclusively to
the Appointments Clause of Article 2 of the Constitution, and he implies
that Congress failed to consider the Appointments Clause when it passed
the FTA under fast-track procedures in 1988. Congress, however, expressly
considered and rejected allegations that Chapter 19 would be in conflict
with the Appointments Clause when it voted to implement the FTA.
The following excerpts from the Report of the House Committee on the
Judiciary explain why Chapter 19 is not in conflict with the Appointments
Clause:
The argument that panel decisions cannot be implemented directly
because of the presence of Canadian panelists (i.e., persons not
appointed under the Appointments Clause) is not persuasive, because,
although the FTA incorporates United States trade law, the binational
panels are set up to implement the FTA and are, thus, not charged
with the enforcement or execution of United States law. If the
Appointments Clause were read to preclude the United States from
entering into international arbitration decisions, such a view would
be unreasonable because no foreign government would ever agree with
the imposition of a condition that all arbitrators be appointed by
the United States.
. . .
The constitutionality of utilizing international tribunals can also
be seen from the pattern of their use throughout our history.
{S}tarting with the Jay Treaty of 1794 to the Boundary Waters Treaty
with Canada in 1909 to the resolution of the Gulf of Maine dispute to
the settlement of claims with Iran in 1981, the United States has
resorted consistently to the use of international tribunals to
adjudicate disputes. To date there have been no successful
challenges to these mechanisms.
. . .
The vast majority of expert witnesses who presented testimony to the
Subcommittee on Course (sic.), Civil Liberties and the Administration
of Justice did not believe there was an Appointments Clause problem.
The Committee agrees with these experts that no Appointments Clause
problem is raised.(1)
The House Judiciary Committee Report, thus, demonstrates that Congress
fully considered the Appointments Clause and concluded that Chapter 19 is
consistent with the United States Constitution.
The issue was raised again in the final House debates on NAFTA by
Congresswoman Bentley (D-Maryland). Again the argument was rejected by
Congress when it enacted the bill.(2)
Throughout its fifteen-year history, first under the FTA and then
under NAFTA, Chapter 19 panels have resolved disputes arising under the
U.S. antidumping and countervailing duty laws using the same standard of
review and applying the same legal principles as have the Court of
International Trade and the Court of Appeals for the Federal Circuit.
Panelists have performed their duties conscientiously and with
distinction. They are accountable through the checks and balances of
having five panel members and the provision for extraordinary challenges
before a panel of former judges. U.S. exporters such as steel and corn
products have benefitted from Chapter 19 review of Canadian and Mexican
trade cases.
Mr. Thornburgh's allegations of legal and ethical problems with
certain Chapter 19 panels have been reviewed by distinguished
Extraordinary Challenge Committees, which in each case found no such
problems. For example:
-- Mr. Thornburgh's client, the Coalition for Fair Lumber Imports,
claimed a conflict of interest with respect to two of the panelists
who reviewed the 1992 Softwood Lumber countervailing duty
determination. An Extraordinary Challenge Committee, established
in accordance with Chapter 19, reviewed those claims and found them
to be without merit.(3)
-- The Coalition for Fair Lumber Imports once again has made spurious
allegations of a conflict of interest in the current softwood
lumber appeals, this time against a panelist appointed by the
United States. An Extraordinary Challenge Committee will review
that allegation, which ACAH is certain is without merit. However,
the important point is that Chapter 19 contains the extraordinary
challenge mechanism to resolve any such concerns. Mr. Thornburgh's
citation to these allegations does not in any way constitute a
valid indictment of Chapter 19, and the institutionalization of a
system to deal with them highlights the contrary.
-- Mr. Thornburgh complains that panels in the Pork and Softwood
Lumber cases invoked legal technicalities to deny the result
originally found by the International Trade Commission. It is the
obligation of courts under the U.S. system of checks and balances
to compel administrative agencies to follow the law. The fact that
the Pork and Softwood Lumber panels required adherence to U.S. law
shows that Chapter 19 is working.
-- Mr. Thornburgh also implied that the Pork, Softwood Lumber and
other panels failed to follow the standard of review with respect
to deference to agency interpretation of law. This allegation has
been repeated by some interest group or administrative agency every
time a panel, or a court, has found an agency determination in
trade remedies to be contrary to law. When the allegation was
raised in the 1992 Swine case a unanimous Extraordinary Challenge
Committee found that the panel did not "fail to apply the properly
articulated standard of review."(4) Similarly, the Extraordinary
Challenge Committee in Softwood Lumber found that the "panelists
articulated the proper standard of review and . . . conscientiously
applied the appropriate law."(5)
Chapter 19 panels have been upholding U.S. law successfully for over
15 years. There have been 32 FTA and NAFTA panels that have reviewed
challenges to U.S. agency determinations with respect to Canadian
merchandise.(6) Only in five cases was an extraordinary challenge sought
and four of those claims were brought by just two U.S. organizations, one
of them Mr. Thornburgh's client.
There is no constitutional or other reason for Congress to undermine
this central component of NAFTA. The only reforms that are needed are in
the administration of the Chapter 19 process where, due to insufficient
resources and attention, unnecessary delays now dominate what was designed
to be an efficient, inexpensive, and expedited process.
We would be happy to discuss these important issues in more detail at
your earliest convenience.
Sincerely,
Susan E. Petniunas
for Alliance of American Consumers
for Affordable Homes
American Homeowners Grassroots Alliance
Catamount Pellet Fuel Corporation
CHEP
Consumers for World Trade
Fremont Forest Group Corporation
Free Trade Lumber Council
Furniture Retailers of America
Home Depot
International Sleep Products Association
Manufactured Housing Association for Regulatory Reform
Manufactured Housing Institute
National Association of Home Builders
National Black Chamber of Commerce
National Lumber and Building Material Dealers Association
National Retail Federation
Retail Industry Leaders Association
United States Hispanic Contractors Association |
