that Congress should make it clear that its approval of the FTA is conditioned on the elimination of Chapter 19. Finally, I would ask that the committee include in its record at statement in opposition to this section that will be forthcoming from the Federal Circuit Bar Association, adopted at its board of directors meeting within the past month. It is being sent to the appropriate committees of the House. Thank you, Mr. Chairman. [The statement of Andrew P. Vance, with attachment, follows:] STATEMENT BEFORE THE HOUSE JUDICIARY SUBCOMMITTEE ON I AM ANDREW P. VANCE, CHAIRMAN OF THE TRIAL AND APPELLATE PRACTICE COMMITTEE OF THE CUSTOMS AND INTERNATIONAL TRADE BAR ASSOCIATION, CITBA. CITBA IS A NATIONAL PROFESSIONAL ASSOCIATION OF LAWYERS WHO PRACTICE BEFORE THE UNITED STATES COURT OF INTERNATIONAL TRADE (CIT) AND THE COURT OF APPEALS FOR THE FEDERAL CIRCUIT (CAFC). CITBA CURRENTLY HAS OVER 300 MEMBERS FROM 19 STATES AND THE DISTRICT OF COLUMBIA. IT IS THE SUCCESSOR TO THE ASSOCIATION OF THE CUSTOMS BAR, WHCH WAS FOUNDED IN THE LATE 1920S. CITBA AND ITS PREDECESSOR HAVE OFFERED OPINIONS TO CONGRESS, PARTICULARLY TO THIS COMMITTEE, ON MEASURES EFFECTING THE UNITED STATES CUSTOMS COURT, THE UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS, AND THEIR SUCCESSORS, THE CIT AND THE CAFC, AND ON CERTAIN TRADE MEASURES FOR OVER A HALF-CENTURY. CITBA IS NOT OPPOSED TO A FREE TRADE AREA AGREEMENT WITH CANADA. HOWEVER, IT VIGOROUSLY OPPOSES THE DISPUTE SETTLEMENT PROVISIONS OF THE PROPOSED FREE TRADE AGREEMENT IN THAT IT WITHDRAWS JUDICIAL REVIEW IN COUNTERVAILING AND ANTIDUMPING MATTERS FROM THE UNITED STATES COURTS AND VESTS IT IN A FIVE MEMBER BINATIONAL PANEL CREATED ON AN AD HOC SITUATION. WHILE WE BELIEVE THAT THE DENIAL OF JUDICIAL REVIEW TO U.S. CITIZENS OF DECISIONS THAT EFFECTIVELY DETERMINE THE AMOUNT OF DUTIES WHICH THEY WILL PAY TO THE UNITED STATES IS A VIOLATION OF THEIR CONSTITUTIONAL RIGHTS, AS I WILL DEVELOP LATER, THERE IS THE UNDERLYING QUESTION OF NOT JUST WHETHER THE DISPUTE SETTLEMENT PROVISION CAN BE AGREED TO WITHOUT VIOLATING THE CONSTITUTION, BUT ALSO WHETHER, PRESUMING THAT SUCH A STEP COULD LAWFULLY BE TAKEN, THERE IS ANY REASON WHATSOEVER TO THROW IN THE ASH BIN 200 YEARS OF IMPORTERS' RIGHTS TO JUDICIAL REVIEW, AND TO RESCIND THE MORE RECENTLY DEVELOPED RIGHTS OF J.S. INDUSTRY AND LABOR AND CONSUMER GROUPS TO SUCH REVIEW ON IMPORTANT TRADE QUESTIONS. LET ME TALK ABOUT SOME OF THE POLICY CONSIDERATIONS WHICH, IT IS RESPECTFULLY SUBMITTED, SHOULD CONCERN THIS COMMITTEE AND THE CONGRESS AS A WHOLE. IT HAS ONLY BEEN WITHIN THE LAST DECADE THAT CONGRESS HAS RECOGNIZED THE IMPORTANCE OF THE AVAILABILITY OF JUDICIAL REVIEW TO AMERICAN MANUFACTURERS, PRODUCERS, WHOLESALERS, LABOR UNIONS, CONSUMER GROUPS, FOREIGN GOVERNMENTS, AND EXPORTERS. IS IT AN ADVANCE IN OUR POLITY TO NOW WITHDRAW THOSE RIGHTS EVEN FOR AN INTERIM PERIOD? WHY IS IT SO IMPORTANT TO DO THIS FOR AN INTERIM PERIOD IS IT PERHAPS TO SET A PRECEDENT FOR UTILIZATION OF THIS DEVICE IN OTHER FREE TRADE AREA AGREEMENTS? IS IT PERHAPS TO SET A PRECEDENT FOR DENYING CITIZENS THEIR RIGHTS TO JUDICIAL REVIEW WITH REGARD TO OTHER CUSTOMS MATTERS? WE ARE TOLD THAT THIS PARTICULAR PROVISION OF THE AGREEMENT IS SO INTEGRAL THAT IT CANNOT BE DIVORCED FROM THE AGREEMENT WITHOUT LOSING THE ENTIRE AGREEMENT. IT IS HARD FOR US TO BELIEVE THAT THIS IS SO IMPORTANT TO THE CANADIANS THAT THEY WOULD GIVE UP ALL THE ECONOMIC BENEFITS WHICH WE UNDERSTAND THE AGREEMENT HAS IF THEY WERE ASKED TO AGREE TO THE WITHDRAWAL OF THE DISPUTE SETTLEMENT PROVISIONS. THERE HAVE ALREADY BEEN INDICATIONS OF CANADIAN AGREEMENT TO "RENEGOTIATE THE AGREEMENT" PER LETTER TO SENATOR BENTSEN FROM THE CANADIAN APPAREL FUR SECTORAL ADVISORY GROUP ON INTERNATIONAL TRADE REPORTED IN INSIDE U.S. TRADE, APRIL 15, 1988. AS WE UNDERSTAND IT, CANADA BASICALLY ASKED TO BE EXEMPTED FROM THE PROVISIONS OF THE COUNTERVAILING DUTY AND ANTIDUMPING LAW STATUTES-OR AT LEAST NOT BE SUBJECT TO THE ADMINISTRATIVE PROCEDURES OF THE INTERNATIONAL TRADE ADMINISTRATION AND THE INTERNATIONAL TRADE COMMISSION. WE ALSO UNDERSTAND THAT WE GAVE NO RESPONSE TO CANADA ON THIS REQUEST FOR SOME 19 MONTHS, UNTIL NEAR THE END OF THE NEGOTIATIONS. THEN WE PROPOSED THAT AS A SUBSTITUTE FOR WHAT THE CANADIANS ASKED FOR THERE SHOULD BE ESTABLISHED THIS BINATIONAL DISPUTE SETTLEMENT PANEL FOR THE NEXT FIVE OR SEVEN YEARS WHILE THERE IS TO BE DISCUSSION AS TO WHETHER AN AGREEMENT CAN BE REACHED FOR A CHANGE IN THE TREATMENT OF SUBSIDIES AND DUMPING BETWEEN CANADA AND THE UNITED STATES. GIVEN THE FACT THAT CANADIAN CASES REALLY REPRESENT A RELATIVELY SMALL NUMBER OF LITIGATION IN THIS AREA AND THE FACT THAT THE CANADIANS ARE NOT REALLY COMPLAINING ABOUT THE TREATMENT THEY HAVE RECEIVED AT THE HANDS OF OUR TRADE COURTS, ONE IS LEFT WITH THE CONCERN AS TO WHETHER THIS PROPOSAL HAS BEEN PUT FORTH BY THE ADMINISTRATIVE AGENCIES WHO HAVE NEVER LIKED JUDICIAL REVIEW FOR THE PURPOSE OF ESTABLISHING A PRECEDENT. LET ME QUOTE BRIEFLY FROM AN ARTICLE WRITTEN BY THEN GENERAL COUNSEL AND DEPUTY GENERAL COUNSEL FOR THE U.S. TRADE REPRESENTATIVE, ALAN F. HOLMER AND JUDITH HIPPLER BELLO, FROM THE FALL 1987 ISSUE OF THE INTERNATIONAL LAWYER WRITING ON "THE U.S.-CANADIAN LUMBER AGREEMENT: PAST AS PROLOGUE": "THE LITIGATION SPAWNED BY THE 1983 COMMERCE DECISIONS ON NATURAL RESOURCES DEMONSTRATES THE IMPORTANCE AND EFFECTIVENESS OF THE SUBSTANTIALLY INCREASED JUDICIAL REVIEW PROVISIONS ENACTED BY THE CONGRESS IN 1979. CONGRESS INTENDED TO PROVIDE MORE OPPORTUNITIES FOR JUDICIAL REVIEW, IN LARGE PART AS A CHECK ON THE EXECUTIVE BRANCH DISCRETION IN ADMINISTERING THE COUNTERVAILING DUTY AND ANTIDUMPING LAWS. RECENTLY THE COURTS HAVE PLAYED A SIGNIFICANT ROLE IN SHAPING THE COURSE OF THE CVD LAW. AT LEAST THEORETICALLY, THIS SHOULD REDUCE THE PRESSURE THAT DISAPPOINTED U.S PETITIONERS ATTEMPT TO APPLY TO THE CONGRESS TO AMEND THE LAW WHENEVER COMMERCE MAKES ANY DETERMINATION ADVERSE TO THEIR INTERESTS." (FOOTNOTES OMITTED, PAGES 1197-1198.) THERE IS NO REASON IN POLICY WHY A BINATIONAL PANEL SHOULD BE CREATED. THE COUNTERVAILING AND ANTIDUMPING DUTY STATUTES CONTAINED IN TITLE VII OF THE TARIFF ACT OF 1930, AS AMENDED, ALREADY CONTAIN PROVISIONS FOR THE SETTLEMENT OF DISPUTES BY AGREEMENT OR UNDERTAKINGS. IF THE CANADIAN GOVERNMENT AND THE UNITED STATES EXECUTIVE BRANCH ARE INTERESTED IN SETTLING THESE MATTERS IN A RATIONAL POLITICAL MANNER, RATHER THAN ENGAGING IN FULL ADMINISTRATIVE PROCEEDINGS AND COURT REVIEW, IT IS THESE PROVISIONS WHICH SHOULD BE EXPANDED. THEY COULD BE USED TO SUSPEND OR END ANY DUMPING OR COUNTERVAILING DUTY CASES. IF, DURING THE PROGRESS OF THE MATTER AT THE ADMINISTRATIVE LEVEL, THE GOVERNMENTS CAN WORK OUT AN AGREEMENT, THEN THE MATTER WILL END ADMINISTRATIVELY. AN EXAMPLE OF WHERE THIS HAPPENED JUST THIS PAST JANUARY WAS IN THE ANTIDUMPING INVESTIGATION ON POTASSIUM CHLORIDE FROM CANADA WHERE THE FEDERAL REGISTER OF JANUARY 19, 1988 NOTES THE ENTERING INTO AN AGREEMENT BETWEEN THE |