The cross-border wheat trade fight isn’t over yet.
The North Dakota Wheat Commission has decided to challenge an Oct. 5 ruling by the U.S. International Trade Commission that would lift U.S. tariffs against Canadian hard red spring wheat.
The challenge will delay the reopening of the border to free trade until late January at the earliest, says the Canadian Wheat Board, which expressed confidence the appeal will be rejected.
“It’s little more than a delaying tactic, ” said CWB spokesperson Maureen Fitzhenry. “I guess it’s in their interest politically to extend the tariff as long as they can.”
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Commission chair Harlan Klein said the facts of the case haven’t changed since the ITC’s original ruling in 2003 that Canadian imports were injuring U.S. wheat growers, which resulted in the imposition of tariffs.
“Exports of Canadian wheat are still being subsidized and will once again impose a hardship on hard red spring wheat growers in North Dakota and surrounding states if allowed to flow freely across the border,” he said.
The ITC’s Oct. 5 decision was in response to a ruling by a binational panel that the commission had failed to take into account evidence favourable to Canada in its 2003 decision.
The North American Free Trade Agreement panel sent the case back to the ITC with orders to review its decision and take that evidence into account. The ITC responded by reversing its original ruling by a four to one vote.
In order to win the challenge, the commission will have to convince the NAFTA panel that the ITC failed to follow the panel’s directives when it reconsidered the case.
CWB counsel Jim McLandress said that will be about as close to impossible as one can get.
“This isn’t an uphill climb,” he said. “This is a backwards sloping sheer face cliff with no handholds.”
Assuming the panel rejects the challenge, the only other possible obstacle to lifting the tariff would be if the U.S. government launched an extraordinary challenge under NAFTA.
However, that would require the unlikely prospect of the U.S. government challenging the findings of one of its own agencies, the ITC.
“I’m not sure it’s even technically possible, but practically and logically, it’s inconceivable,” McLandress said.
In announcing the decision to launch its challenge, the North Dakota commission insisted that contrary to the ITC’s conclusions, opening the border poses a “real and sizable threat” to the U.S. market.
