Sources: King & Spalding LLC and National Association of Home Builders, Washington, D.C.

The Southern Tier Cement Committee, which has pressed the U.S. Department of Commerce to enforce antidumping duty orders imposed on powder imports from Mexico, announced support lumber group's challenge to the North American Free Trade Agreement appeals process. In a Sept. 13 complaint filed with the U.S. Court of Appeals for the District of Columbia Circuit, the Coalition for Fair Lumber Imports seeks to have NAFTA Chapter 19 declared unconstitutional. The complaint contends that the chapter allows appeals of Commerce determinations involving imports from Mexico or Canada to be heard by ad hoc panels of individuals from the two countries involved in a case versus national courts.

The Coalition had a 30-day window to file the complaint, driven by a mid-August NAFTA Extraordinary Challenge Committee ruling that appeared to ease antidumping duties on Canadian softwood lumber imports. The National Association of Home Builders praised the decision, noting that it paved the way for “elimination of a hidden tax that has cost American home buyers and consumers more than $4 billion.”

“The binational panel dispute settlement system set up by Chapter 19 is contrary to the U.S. Constitution,” says King & Spalding's Joe Dorn, STCC counsel. “It was intended to provide a process for timely appeals of agency decisions in antidumping and countervailing duty cases based on fairly applying the same law and standard of review as a national court. Instead, Chapter 19 is being manipulated in a biased manner, and U.S. producers have no real recourse. Thus, we support the coalition's action.”

The STCC, he adds, is among the most experienced parties in NAFTA cases, because its Mexican opponents have consistently chosen to appeal to NAFTA panels, rather than the U.S. Court of International Trade, a Federal court with impartial judges established under Article III of the U.S. Constitution.