Rule2021-26551
Procedures and Rules for Article 10.12 of the United States-Mexico-Canada Agreement
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 9, 2021
Effective
December 9, 2021
Issuing agencies
Commerce DepartmentInternational Trade Administration
Abstract
The Department of Commerce (Commerce) is issuing this interim final rule to amend its regulations pertaining to the procedures and rules related to Article 1904 of the North American Free Trade Agreement (NAFTA) with appropriate references to the United States- Mexico-Canada Agreement (USMCA), which went into effect on July 1, 2020. Article 10.12 of the USMCA, like NAFTA Article 1904, provides a dispute settlement mechanism for purposes of reviewing antidumping and countervailing duty determinations issued by the United States, Canada, and Mexico. Commerce is amending its regulations to replace references to Article 1904 of NAFTA with references to Article 10.12 of the USMCA; to update outdated cross-references to Commerce's antidumping and countervailing duty regulations; update outdated notice, filing, service, and protective order procedures; and adopt other minor corrections and updates.
Full Text
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<title>Federal Register, Volume 86 Issue 234 (Thursday, December 9, 2021)</title>
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[Federal Register Volume 86, Number 234 (Thursday, December 9, 2021)]
[Rules and Regulations]
[Pages 70045-70052]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-26551]
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DEPARTMENT OF COMMERCE
International Trade Administration
19 CFR Part 356
[Docket No. 211115-0233]
RIN 0625-AB20
Procedures and Rules for Article 10.12 of the United States-
Mexico-Canada Agreement
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
ACTION: Interim final rule; request for comments.
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SUMMARY: The Department of Commerce (Commerce) is issuing this interim
final rule to amend its regulations pertaining to the procedures and
rules related to Article 1904 of the North American Free Trade
Agreement (NAFTA) with appropriate references to the United States-
Mexico-Canada Agreement (USMCA), which went into effect on July 1,
2020. Article 10.12 of the USMCA, like NAFTA Article 1904, provides a
dispute settlement mechanism for purposes of reviewing antidumping and
countervailing duty determinations issued by the United States, Canada,
and Mexico. Commerce is amending its regulations to replace references
to Article 1904 of NAFTA with references to Article 10.12 of the USMCA;
to update outdated cross-references to Commerce's antidumping and
countervailing duty regulations; update outdated notice, filing,
service, and protective order procedures; and adopt other minor
corrections and updates.
DATES:
Effective date: This interim final rule is effective on December 9,
2021. This interim final rule does not apply to any binational panel
review under NAFTA, or any extraordinary challenge arising out of any
such review, that was commenced before July 1, 2020.
Comment date: To be assured of consideration, written comments on
the interim final rule must be received no later than January 10, 2022.
ADDRESSES: Submit comments only through the Federal eRulemaking Portal
at <a href="http://www.Regulations.gov">http://www.Regulations.gov</a>, Docket No. ITA-2021-0006. Due to the
COVID-19 situation, Commerce is not able to accept comments submitted
by mail or hand-delivery at this time. All comments submitted during
the comment period permitted by this document will be a matter of
public record and will generally be available on the Federal
eRulemaking Portal at <a href="http://www.Regulations.gov">http://www.Regulations.gov</a>. Commerce will not
accept response comments accompanied by a request that part or all of
the material be treated confidentially because of its business
proprietary nature or for any other reason. Therefore, do not submit
confidential business information or otherwise sensitive or protected
information.
Any questions concerning the process for submitting comments should
be submitted to Enforcement & Compliance Communications office at (202)
482-0063 or <a href="/cdn-cgi/l/email-protection#7a3f39391517170f1413191b0e131514093a0e081b1e1f541d150c"><span class="__cf_email__" data-cfemail="99dcdadaf6f4f4ecf7f0faf8edf0f6f7ead9edebf8fdfcb7fef6ef">[email protected]</span></a>.
FOR FURTHER INFORMATION CONTACT: Jessica Link at (202) 482-1411.
SUPPLEMENTARY INFORMATION:
Background
On November 30, 2018, the ``Protocol Replacing the North American
Free Trade Agreement with the Agreement Between the United States of
America, the United Mexican States, and Canada'' (the Protocol) was
signed to replace the North American Free Trade Agreement (NAFTA). The
Agreement Between the United States of America, the United Mexican
States (Mexico), and Canada (the USMCA) \1\ is attached as an annex to
the Protocol and was subsequently amended to reflect certain
modifications and technical corrections in the ``Protocol of Amendment
to the Agreement Between the United States of America, the United
Mexican States, and Canada'' (the Amended Protocol), which the Office
of the United States Trade Representative (USTR) signed on December 10,
2019. The USMCA entered into force on July 1, 2020.\2\
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\1\ The Agreement Between the United States of America, the
United Mexican States, and Canada is the official name of the USMCA
treaty. Please be aware that, in other contexts, the same document
is also referred to as the United States-Mexico-Canada Agreement.
\2\ Mexico, Canada, and the United States certified their
preparedness to implement the USMCA on December 12, 2019, March 13,
2020, and April 24, 2020, respectively. Pursuant to section 106 of
the Bipartisan Congressional Trade Priorities and Accountability Act
of 2015 (19 U.S.C. 4205) and section 151 of the Trade Act of 1974
(19 U.S.C. 2191), the United States adopted the USMCA through the
enactment of the United States--Mexico--Canada Agreement
Implementation Act (USMCA Implementation Act), Public Law 116-113,
134 Stat. 11 (19 U.S.C. Chapter 29), on January 29, 2020. Pursuant
to paragraph 2 of the Protocol, which provides that the USMCA will
take effect on the first day of the third month after the last
signatory party provides written notification of the completion of
the domestic implementation of the USMCA through the enactment of
implementing legislation, the USMCA entered into force on July 1,
2020. On December 27, 2020, subsequent to the USMCA's entry into
force date of July 1, 2020, the Consolidated Appropriations Act,
2021 (Appropriations Act), Public Law 116-260, was enacted with
Title VI of the Act containing technical corrections to the USMCA
Act. All of the changes contained within Title VI of the
Appropriations Act are retroactively effective on July 1, 2020.
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Article 10.12 of the USMCA, like NAFTA Article 1904, provides a
dispute settlement mechanism for purposes of reviewing antidumping and
countervailing duty determinations issued by the United States, Canada,
and Mexico. The procedures and rules for binational panel review of
antidumping and countervailing duty administrative determinations under
Article 10.12 of the USMCA are virtually unchanged from Article 1904 of
NAFTA.
Sections 421-433 and 504 of the USMCA Implementation Act provide
technical and conforming amendments to the Tariff Act of 1930, as
amended (the Act) related to Chapter 10 of the USMCA on antidumping and
countervailing duty matters. The Statement of Administrative Action
accompanying the USMCA Implementation Act provides that, ``[i]n
substance, U.S. laws and regulations are already in conformity with the
obligations assumed under [Chapter 10 of the USMCA,]'' and, therefore,
``no changes in administrative regulations, practices, or procedures
are required to implement the. . .antidumping and countervailing duty
related provisions of Chapter 10.'' \3\
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\3\ Statement of Administrative Action accompanying the USMCA
Implementation Act at 26.
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Pursuant to Article 10.12.14 of the USMCA, the United States,
Mexico, and Canada trilaterally negotiated and agreed to rules of
procedure for binational panel review modifying and updating the
previous rules of procedure for Article 1904 of NAFTA. Effective May
18, 2021, Decision No. 2 of the USMCA Free Trade Commission adopted the
rules of procedure applicable to all binational panel reviews under the
USMCA. The rules of procedure are contained in Annex II to that
decision and are cited as the Article 10.12 Binational Panel Rules.\4\
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\4\ Available at: <a href="https://ustr.gov/trade-agreements/free-trade-agreements/united-states-mexico-canada-agreement/free-trade-commission-decisions/usmca-free-trade-commission-decision-no-2">https://ustr.gov/trade-agreements/free-trade-agreements/united-states-mexico-canada-agreement/free-trade-commission-decisions/usmca-free-trade-commission-decision-no-2</a>. The
Secretariat of the USMCA, comprised of a Canadian section, a United
States section and a Mexican section, is responsible for the
administration of the binational panel review process.
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Commerce's regulations, 19 CFR part 356 (procedures and rules for
the implementation of NAFTA Article 1904) were first promulgated in
1994 and have not undergone any updates since that time. Although not
required by the USMCA Implementation Act, Commerce is amending its
regulations
[[Page 70046]]
pertaining to the procedures and rules governing the binational panel
dispute settlement mechanism to review antidumping duty and
countervailing duty determinations issued by the United States as set
forth in the USMCA. Because the dispute settlement mechanism in USMCA
Article 10.12 is substantively identical to that in NAFTA Article 1904,
Commerce is adopting non-substantive amendments to ensure that its
rules appropriately reference the USMCA. Commerce is also adopting
additional non-substantive amendments, including updating outdated
cross-references to Commerce's antidumping and countervailing duty
regulations (19 CFR part 351), updating outdated notice, filing,
service, and protective order procedures, and adopting other minor
corrections and updates. These changes are explained in the preamble of
this interim final rule and reflected in the regulatory text below.
Explanation of Regulatory Updates
1. Updates To Reflect the Enactment of the USMCA
Commerce's regulations in 19 CFR part 356 implement procedures for
disputes pursuant to Article 1904 of NAFTA. Because NAFTA was replaced
pursuant to the enactment of the USMCA, Commerce's regulations in this
section require updates to reflect the name of the new agreement and
the relevant chapter contained in the new Agreement. Therefore,
Commerce is adopting several changes throughout part 356 to replace
references to NAFTA with references to the USMCA. Commerce is also
adopting several changes throughout part 356 to replace references to
section 402(g) of the North American Free Trade Agreement
Implementation Act of 1993 with reference to section 412(g) of the
United States-Mexico-Canada Agreement Implementation Act of 2020, which
authorizes Commerce to promulgate such regulations as necessary or
appropriate to implement its responsibilities under chapter 10 of the
USMCA.\5\
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\5\ See United States-Mexico-Canada Agreement Implementation Act
of 2020, Public Law 116-113, 134 Stat. 74 (Jan. 29, 2020); 19 U.S.C.
4582 (2020). See also North American Free Trade Agreement Act of
1993, Public Law 103-182, 107 Stat. 2135 (Dec. 8, 1993) (section
402(g) of the North American Free Trade Agreement Implementation Act
(19 U.S.C. 3432(g)).
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These changes are reflected in the title of part 356 and Sec. Sec.
356.1, 356.2(d), 356.2(f), and 356.2(kk) (replacing references to North
American Free Trade Agreement or NAFTA with United States-Mexico-Canada
Agreement or USMCA); Sec. Sec. 356.1, 356.2(f), 356.2(o), 356.2(p),
356.2(cc)(3), 356.10(b)(1)(ii)(B), 356.11(a)(1)(i), and
356.11(b)(2)(ii) (replacing references to Article 1904 of NAFTA with
Article 10.12 of USMCA); Sec. Sec. 356.2, 356.3, 356.4,
356.10(b)(4)(i), 356.11(a)(5)-(6) (replacing references to Article 1904
Panel Rules with Article 10.12 Binational Panel Rules); Sec. 356.1
(replacing references to section 402(g) of the North American Free
Trade Agreement Implementation Act of 1993 with section 412(g) of the
United States-Mexico-Canada Implementation Act of 2020); Sec. 356.2
(replacing the signing date of NAFTA, December 17, 1992 with the
signing date of the amended USMCA, November 30, 2018); Sec. Sec.
356.2(h), 356.2(p), and 356.2(w) (replacing references to Chapter
Nineteen with Chapter Ten); Sec. 356.2(h) (replacing references to
Annex 1901.2 with Annex 10-B.1); in Sec. 356.2(p) (replacing
references to Annex 1904.13 with Annex 10-B.3); Sec. 356.2(q)
(replacing references to Article 1911 with Article 10.8); Sec.
356.2(ff) (replacing references to Article 2002 with Article 30.6); and
Sec. 356.2(r) (replacing references to section 516A(f)(9) of the Act
with section 516A(f)(10) of the Act).
Commerce is also removing several references to the United States-
Canada Free Trade Agreement, which was superseded by NAFTA. Commerce's
regulations contained provisions governing dispute resolution pursuant
to the United States-Canada Free Trade Agreement. Because there are no
active disputes pursuant to that agreement, Commerce is removing
reference to it throughout its regulations. These changes are reflected
in Sec. Sec. 356.2(d), 356.10(c)(1)(ii), and 356.11(c)(1)(ii).
2. Updates To Address Obsolete Regulatory Cross-References
Commerce is also updating outdated regulatory cross-references in
19 CFR part 356 to 19 CFR parts 353 (addressing antidumping duty rules
and procedures) and 355 (addressing countervailing duty rules and
procedures) which became obsolete when Commerce consolidated parts 353
and 355 into a single part 351 in 1997.\6\ Despite the 1997
consolidation, references to obsolete parts 353 and 355 remain in part
356. Therefore, Commerce is removing obsolete cross-references to parts
353 and 355 and replacing them with updated references to part 351 to
reflect the 1997 consolidation of the AD/CVD regulations and any
relevant subsequent regulatory changes Commerce made to part 351
thereafter.\7\
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\6\ See 62 FR 27296, 27297 (May 19, 1997) (final rulemaking to
eliminate Parts 353 and 355 and promulgate a single Part 351, 19 CFR
351, in their place); see also 61 FR 7308, 7310 (Feb. 27, 1996)
(``[I]n response to the President's Regulatory Reform Initiative, to
reduce the amount of duplicative material in the regulations, the
Department has consolidated the antidumping and countervailing duty
regulations into a new Part 351, and is removing Parts 353 and
355.'').
\7\ See, e.g., 62 FR 27296 (May 19, 1997); 73 FR 3627 (Jan. 22,
2008); 76 FR 39275 (July 6, 2011); 80 FR 36473 (June 25, 2015); and
85 FR 17007 (March 26, 2020).
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These changes are reflected in Sec. 356.2(u) (replacing cross-
references to 19 CFR 353.31(e)(2)(i) through (v) or 355.31(e)(2)(i)
through (v) with 19 CFR 351.303(d)(2), which outline Commerce's current
requirements for document submissions with respect to specifications
and first page ``letter of transmittal'' markings); Sec. Sec. 356.7(b)
and 356.8(d) (replacing cross-references to 19 CFR 353.31(d), (e)(2)
and 19 CFR 355.31(d), (e)(2) with references to 19 CFR 351.303(b) and
19 CFR 351.303(d)(2), which outline Commerce's current format and
filing requirements for document submissions); Sec. 356.7(c) and
356.8(d) (replacing cross-references to 19 CFR 353.31(g) and 19 CFR
355.31(g) with reference to current 19 CFR 351.303(f) which outlines
Commerce's current service requirements).
3. Updates To Address Outdated Notice, Filing, Service, and Protective
Order Procedures
Commerce is also updating its regulations relating to certain
outdated notice procedures. Specifically, current Sec. Sec. 356.6 and
356.7 provide that Commerce will notify governments of Free Trade
Agreement (FTA) Countries of scope determinations and contemplate that
such determinations not be published in the Federal Register.\8\ Under
current Sec. 356.6, when Commerce makes a scope determination, notice
of such scope determination shall be deemed received by the Government
of an FTA country when a certified copy of the determination is
delivered to the chancery of the Embassy of the FTA.
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\8\ This language originated in the 1988 interim final rule for
the United States-Canada Free Trade Agreement. See Panel Review
Under Article 1904 of the U.S.-Canada Free-Trade Agreement, 53 FR
53232, 53233 (Dec. 30, 1988 (interim final rule).
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Under Commerce's current procedures, scope rulings under 19 CFR
351.225 are a type of ``class or kind determination,'' a term that also
encompasses circumvention determinations under section 781 of the Act.
In some instances, a class or kind determination may be published in
the Federal Register. Otherwise, interested parties will be notified of
a
[[Page 70047]]
determination through other means, including through mailing or
electronic means. Section 516A(g)(10) of the Act, as amended by the
USMCA Implementation Act, provides that Commerce, upon request, shall
inform any interested person of the date on which the Government of the
relevant FTA country received notice of the determination. However, the
statute is silent as to the method of notice to the government of a FTA
country, and, therefore, it is left to the discretion of Commerce.\9\
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\9\ Similarly, the relevant language in USMCA Article 10.12.4
does not specify the method by which the importing Party must notify
the other involved Party of determinations not published in the
official journal: ``In the case of final determinations that are not
published in the official journal of the importing Party, the
importing Party shall immediately notify the other involved Party of
such final determination where it involves goods from the other
involved Party, and the other involved Party may request a panel
within 30 days of receipt of such notice.'' Nor do the Article 10.12
Binational Panel Rules, which state at Article 39(2)(c) that a
Request for Panel Review must contain ``the date on which the notice
of the final determination was received by the other Party if the
final determination was not published in an official publication.''
There are no specific requirements on the method of notification.
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Accordingly, Commerce is revising Sec. 356.6 to state that notice
shall be deemed received either on the date on which the class or kind
determination is published in the Federal Register, or, if the
determination is not published, on the date on which Commerce conveys a
copy of the determination by electronic notification to the government.
Further, in instances in which Commerce does not publish the
determination, these changes will require that Commerce: (1) Confirm
the appropriate Embassy electronic mail address, and (2) directly
convey to the Embassy an electronic copy of the determination during
the Embassy's normal business hours. Commerce is also adopting changes
to reflect that ``class or kind determination'' is a more accurate term
than ``scope determination'' for these types of determinations. Similar
edits are reflected in Sec. 356.7. In addition, for ease of reference
the definition for scope determination in Sec. 356.2(ee) has been
expanded to include reference to class or kind of merchandise
determination.
Commerce is also amending Sec. Sec. 356.10 and 356.11 regarding
the procedures for access to proprietary and privileged information
during a USMCA binational panel dispute. Current Sec. 356.10 requires
a party seeking access to proprietary information to do so by
submitting an application for a protective order. Such applications are
to be filed with the U.S. section of the USMCA Secretariat, which in
turn provides the applications to Commerce. Upon approving the
application, Commerce will then issue the protective order to the
Secretariat, which in turn will issue the protective order to the
original applicant along with other participating parties to the
dispute. The procedures in Sec. 356.10(b)(3) have been updated to
remove the requirement for manual filing.
Additionally, current Sec. 356.10(b)(4)(ii) provides the method of
service by which a protective order may be served. Because this
provision does not currently account for service by electronic means,
which is now permitted by the U.S. section of the Secretariat under the
Article 10.12 Binational Panel Rules, Commerce is adding language to
Sec. 356.10(b)(4)(ii)(B) to allow for electronic means as a method of
service for protective orders. Further, Commerce is adding an
additional provision (Sec. 356.10(b)(4)(ii)(D)) to reflect that the
U.S. section of the Secretariat allows for the filing of documents
using an electronic filing platform to satisfy service requirements
under the Article 10.12 Binational Panel Rules. Commerce is also adding
corresponding language to Sec. 356.10(b)(4)(iii) regarding the date of
service if a document is served by electronic means or filed using the
electronic filing platform.
Commerce is also revising Sec. Sec. 356.7(b); 356.8(d)(1);
356.10(b)(3) through (5), 356.10(c)(1)(i), 356.10(c)(2)(i),
356.10(c)(2)(v), 356.10(c)(3), 356.10(c)(4)(i), 356.10(d)(2),
356.11(a)(2) and (3), 356.11(a)(5)(i)-(ii), 356.11(c)(1)(i),
356.11(c)(2) and (3), and 356.11(d)(2) to remove language requiring
originals and multiple copies, as such a requirement has been made
obsolete. Moreover, Commerce is also revising Sec. Sec.
356.10(b)(1)(ii)(C), 356.11(b)(2)(iii), 356.12(a)(5), 356.14(d)(2),
356.14(d)(4), and 356.18(c)(4) to remove language requiring parties to
return documents released under protective order and to log the use of
proprietary documents, as such requirements have become obsolete, and
to instead require parties to destroy and certify to the destruction of
documents released under protective order.
4. Other Minor Corrections and Updates
Commerce is also adopting minor corrections and updates to part 356
in Sec. Sec. 356.10(b)(1)(i) and 356.11(b)(1) (updating the address
and the room number of the Central Records Unit); Sec. Sec. 356.7(b)
and 356.8(d)(1) (updating the address and the room number of the APO/
Dockets Unit); Sec. Sec. 356.2(ee) and 356.27(d) (correcting
punctuation); Sec. 356.2(kk) (correcting the address of the Commerce
Department); Sec. 356.2(bb)(2) (updating the name of Mexico's
Secretaria de Comercio y Fomento Industrial to the Secretariat of
Economy); and Sec. 356.11(c)(3) (adding a missing word in the title of
the paragraph). Lastly, Commerce is updating the definition of the term
``director'' as specified in Sec. 356.2(n) to correspond with the
current definition in 19 CFR part 354, revised by Commerce in 1998.\10\
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\10\ See Antidumping and Countervailing Duty Proceedings:
Administrative Protective Order Procedures; Procedures for Imposing
Sanctions for Violation of a Protective Order, 85 FR 24391, 24400,
24403 (May 4, 1998) (final rule) (revising the definition of the
term ``director'' in 19 CFR 354.2 to include ``Senior APO
Specialist'' and to conform with changes in office director
positions following an internal reorganization).
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Classifications
Administrative Procedure Act
Under section 553 of the Administrative Procedure Act (APA) (5
U.S.C. 553), agencies generally are required to publish a notice of
proposed rulemaking in the Federal Register that solicits public
comment on the proposed regulatory amendments, consider public comments
in deciding on the content of the final amendments, and publish the
final amendments at least 30 days prior to their effective date. The
APA (5 U.S.C. 553(b)) provides a statutory exemption to notice-and-
comment rulemaking for rules of agency organization, procedure, or
practice and when the agency finds for good cause that such procedures
are impracticable, unnecessary, or contrary to the public interest.
Commerce's amendments to the regulation, 19 CFR 356, fall within this
exemption.
Specifically, providing notice of and an opportunity for comment on
the amended regulation in advance of its effective date is unnecessary
pursuant to the good cause exemption (5 U.S.C. 553(b)(B)). As described
above, the first set of amendments reflect revisions already made to
U.S. law following the enactment of the USMCA; are already known to
parties; or are otherwise necessary to replace outdated references to
NAFTA with the USMCA.\11\ The second set of amendments address obsolete
regulatory cross-references to other parts of Commerce's regulations;
are non-substantive and technical in nature; and reflect procedures
that are already known to parties.\12\ The third set of amendments
streamline or remove outdated paper notice, filing, service,
[[Page 70048]]
and protective order requirements and procedures that have been
replaced by electronic requirements and procedures.\13\ Certain of
these procedures have already been adopted by the United States,
Mexico, and Canada under the Article 10.12 Binational Panel Rules; are
already known to parties; or are otherwise necessary to remove outdated
and burdensome requirements.\14\ Further, the amendments allowing for
electronic notification of class or kind of merchandise determinations,
in lieu of in-person notification, are necessary and appropriate in
light of COVID-19.\15\ Lastly, the fourth set of amendments reflect
updated office locations and internal organization and correct
nomenclature or punctuation.\16\ In light of the above, prior notice
and opportunity for comment is unnecessary. However, Commerce would
like to know the public's view on these revisions and is therefore
soliciting comments on the Interim Final Rule and will consider all
comments received before issuing a final rule.
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\11\ See changes described above under ``Updates to Reflect the
Enactment of the USMCA.''
\12\ See changes described above under ``Updates to Address
Obsolete Regulatory Cross-references.''
\13\ See changes described above under ``Updates to Address
Outdated Notice, Filing, Service, and Protective Order Procedures.''
\14\ See discussion of changes to Sec. Sec. 356.2(ee); 356.7;
356.8; 356.10; 356.11; 356.12; 356.14; and 356.18.
\15\ See discussion of changes to Sec. 356.6 and corresponding
revisions to Sec. 356.7.
\16\ See changes described under ``Other Minor Corrections and
Updates.''
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In addition, the APA (5 U.S.C. 553(d)(3)) provides that a 30-day
delayed effective date may be waived if the agency finds good cause to
waive such a requirement. For the same reasons as explained above, and
because this rule does not impose affirmative requirements on any
entity, a delayed effective date is unnecessary.
Executive Order 12866
OMB has not found this rule to be a significant rulemaking under
Executive Order 12866.
Executive Order 13132
This proposed rule does not contain policies with federalism
implications as that term is defined in section 1(a) of Executive Order
13132, dated August 4, 1999 (64 FR 43255 (August 10, 1999)).
Paperwork Reduction Act
This rule does not contain a collection of information subject to
the Paperwork Reduction Act, 44 U.S.C. Chapter 35 (PRA).
Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended,
requires an agency to prepare and make available to the public a
regulatory flexibility analysis that describes whether a rule will have
a significant effect on a substantial number of small entities when the
agency is required to publish a general notice of proposed rulemaking.
Because a notice of proposed rulemaking is not necessary for this rule,
Commerce is not required to prepare a regulatory flexibility analysis
for this rule, and none has been prepared.
List of Subjects in 19 CFR Part 356
Administrative practice and procedure, Antidumping, Business and
industry, Confidential business information, Countervailing duties,
Imports.
Dated: November 29, 2021.
Ryan Majerus,
Deputy Assistant Secretary for Policy and Negotiations, Performing the
Non-Exclusive Functions and Duties of the Assistant Secretary for
Enforcement and Compliance.
For the reasons stated in the preamble, the Department of Commerce
is amending 19 CFR part 356 as follows:
PART 356--PROCEDURES AND RULES FOR ARTICLE 10.12 OF THE UNITED
STATES-MEXICO-CANADA AGREEMENT
0
1. The authority citation for 19 CFR part 356 continues to read as
follows:
Authority: 19 U.S.C. 1516a and 1677f(f), unless otherwise noted.
0
2. Revise the heading to part 356 to read as set forth above.
0
3. Revise Sec. 356.1 to read as follows:
Sec. 356.1 Scope.
This part sets forth procedures and rules for Article 10.12 of the
United States-Mexico-Canada Agreement under the Tariff Act of 1930, as
amended by title IV of the United States-Mexico-Canada Agreement
Implementation Act of 2020 (19 U.S.C. 1516a and 1677f(f)). This part is
authorized by section 412(g) of the United States-Mexico-Canada
Agreement Implementation Act of 2020.
0
4. In Sec. 356.2, revise paragraphs (d), (f), (h), (n), (o), (p), (q),
(r), (u), (w), (bb)(2)(ii), (cc)(3), (ee), (ff), (hh), and (kk) to read
as follows:
Sec. 356.2 Definitions.
* * * * *
(d) Agreement means the United States-Mexico-Canada Agreement
(USMCA) between Canada, the United Mexican States, and the United
States, signed on November 30, 2018, as amended;
* * * * *
(f) Article 10.12 Binational Panel Rules means the USMCA Article
10.12 Binational Panel Rules, established in accordance with Article
10.12.14 of the USMCA, and any subsequent amendments;
* * * * *
(h) Binational panel means a binational panel established pursuant
to Annex 10-B.1 to Chapter Ten of the Agreement for the purposes of
reviewing a final determination;
* * * * *
(n) Director means the Senior APO Specialist (as defined by 19 CFR
354.2) or an office director under a Deputy Assistant Secretary,
International Trade Administration, or a designee;
(o) Disclosure undertaking means:
(1) In the case of Canada, the Canadian mechanism for protecting
proprietary or privileged information during proceedings pursuant to
Article 10.12 of the Agreement, as prescribed by subsection 77.21(2) of
the Special Import Measures Act, as amended;
(2) In the case of Mexico, the Mexican mechanism for protecting
proprietary or privileged information during the proceedings pursuant
to Article 10.12 of the Agreement, as prescribed by the Ley de Comercio
Exterior and its regulations;
(p) Extraordinary challenge committee means the committee
established pursuant to Annex 10-B.3 to Chapter Ten of the Agreement to
review decisions of a panel or conduct of a panelist;
(q) Final determination means ``final determination'' as defined by
Article 10.8 of the Agreement;
(r) Free trade area country or FTA country means ``free trade area
country'' as defined by section 516A(f)(9) of the Act (19 U.S.C.
1516a(f)(9));
* * * * *
(u) Letter of transmittal means a document marked according to the
requirements of 19 CFR 351.303(d)(2);
* * * * *
(w) Panel review means review of a final determination pursuant to
Chapter Ten of the Agreement;
* * * * *
(bb) * * *
(2) * * *
(ii) Internal communications between officials of Secretariat of
Economy in charge of antidumping and countervailing duty investigations
or communications between those officials and other government
officials, where those communications constitute part of the
deliberative process with respect to the final determination; and
* * * * *
[[Page 70049]]
(cc) * * *
(3) With respect to a panel review of a final determination made in
the United States, business proprietary information under section
777(f) of the Act (19 U.S.C. 1677f(f)) and information the disclosure
of which the Department has decided is limited under the procedures
adopted pursuant to Article 10.12.14 of the Agreement, including
business or trade secrets; production costs; terms of sale; prices of
individual sales, likely sales, or offers; names of customers,
distributors, or suppliers; exact amounts of the subsidies received and
used by a person; names of particular persons from whom proprietary
information was obtained; and any other business information the
release of which to the public would cause substantial harm to the
competitive position of the submitter;
* * * * *
(ee) Scope determination or class or kind of merchandise
determination means a determination by the Department, reviewable under
section 516A(a)(2)(B)(vi) of the Act (19 U.S.C. 1516a(a)(2)(B)(vi)), as
to whether a particular type of merchandise is within the class or kind
of merchandise described in an existing finding of dumping or an
antidumping or countervailing duty order covering free trade area
country merchandise.
(ff) Secretariat means the Secretariat established pursuant to
Article 30.6 of the Agreement and includes the Secretariat sections
located in Canada, Mexico, and the United States;
* * * * *
(hh) Service address means the address of the counsel of record for
a person, including an electronic mail address submitted with that
address, or, where a person is not represented by counsel, the address
set out by the person in a Request for Panel Review, Complaint or
Notice of Appearance as the address at which the person may be served,
including an electronic mail address submitted with that address, or
where a Change of Service Address has been filed by a person, the new
service address set out as the service address in that form, including
an electronic mail address submitted with that address;
* * * * *
(kk) United States section of the Secretariat means, for the
purposes of filing, United States Secretary, USMCA Secretariat, room
2061, U.S. Department of Commerce 14th and Constitution Avenue NW,
Washington, DC 20230.
0
5. In Sec. 356.3, revise the introductory text to read as follows:
Sec. 356.3 Notice of intent to commence judicial review.
A party to a proceeding who intends to commence judicial review of
a final determination made in the United States shall file a Notice of
Intent to Commence Judicial Review, which shall contain such
information, and be in such form, manner, and style, including service
requirements, as prescribed by the Article 10.12 Binational Panel
Rules, within 20 days after:
* * * * *
0
6. In Sec. 356.4, revise the introductory text to read as follows:
Sec. 356.4 Request for panel review.
A party to a proceeding who seeks panel review of a final
determination shall file a Request for Panel Review, which shall
contain such information, and be in such form, manner, and style,
including service requirements, as prescribed by the Article 10.12
Binational Panel Rules, within 30 days after:
* * * * *
0
7. Revise Sec. 356.6 to read as follows:
Sec. 356.6 Receipt of notice of a class or kind of merchandise
determination by the Government of a FTA country.
Where the Department has made a class or kind of merchandise
determination, notice of such determination shall be deemed received by
the Government of a FTA country:
(a) On the date of publication in the official publication of the
determination; or
(b) If the determination was not published in the official
publication, on the date on which the Department conveys a copy of the
determination to the electronic mail address provided by the Embassy of
the FTA country during its normal business hours.
0
8. In Sec. 356.7, revise paragraphs (a), (b), and (c) to read as
follows:
Sec. 356.7 Request to determine when the Government of a FTA country
received notice of a class or kind of merchandise determination.
(a) Pursuant to section 516A(g)(1) of the Act (19 U.S.C
1516a(g)(10)), any party to the proceeding may request in writing from
the Department the date on which the Government of a FTA country
received notice of a class or kind of merchandise determination made by
the Department.
(b) A request shall be made by filing a request in accordance with
the requirements set forth in 19 CFR 351.303(b) and 351.303(d)(2) with
the Secretary of Commerce, Attention: Enforcement and Compliance, APO/
Dockets Unit, Room 18022, U.S. Department of Commerce, 14th Street and
Constitution Avenue NW, Washington, DC 20230. A letter of transmittal
must be the first page of the request.
(c) The requesting party shall serve a copy of the Request to
Determine When the Government of [insert name of applicable FTA
country] Received Notice of a Class or Kind of Merchandise
Determination on any interested party on the Department's service list
in accordance with the service requirements listed in 19 CFR
351.303(f).
* * * * *
0
9. In Sec. 356.8, revise paragraphs (d)(1) and (2) to read as follows:
Sec. 356.8 Continued suspension of liquidation.
* * * * *
(d) * * *
(1) A request for Continued Suspension of Liquidation must be filed
with the Assistant Secretary for Enforcement and Compliance, Attention:
APO/Dockets Unit, Room 18022, U.S. Department of Commerce, 14th Street
and Constitution Avenue NW, Washington, DC 20230, in accordance with
the requirements set forth in 19 CFR 351.303(b) and (d)(2). A letter of
transmittal must be the first page of the request and be marked: Panel
Review--Request for Continued Suspension of Liquidation. The request
may be made no earlier than the date on which the first request for
binational panel review is filed.
(2) The requesting party shall serve a copy of the Request for
Continued Suspension of Liquidation on the United States Secretary and
all parties to the proceeding in accordance with the requirements of 19
CFR 351.303(f).
* * * * *
0
10. In Sec. 356.10:
0
a. Revise paragraphs (b)(1)(i), (b)(1)(ii)(B) and (C), (b)(3),
(b)(4)(i), and (b)(4)(ii)(B) and (C);
0
b. Add paragraph (b)(4)(ii)(D);
0
c. Revise paragraphs (b)(4)(iii), (b)(5), and (c)(1)(i);
0
d. Remove and reserve paragraph (c)(1)(ii); and
0
e. Revise paragraphs (c)(2)(i) and (v), (c)(3), (c)(4)(i), and (d)(2).
The revisions and addition read as follows:
Sec. 356.10 Procedures for obtaining access to proprietary
information.
* * * * *
(b) * * *
(1) * * *
(i) The Department has adopted application forms for disclosure of
[[Page 70050]]
proprietary information which are available from the United States
section of the Secretariat or the Central Records Unit, Room B8024,
U.S. Department of Commerce, 14th Street and Constitution Avenue NW,
Washington, DC 20230. The application forms may be amended from time to
time.
(ii) * * *
(B) Not use any of the proprietary information not otherwise
available to the applicant for purposes other than proceedings pursuant
to Article 10.12 of the Agreement;
(C) Upon completion of the panel review, or at such earlier date as
may be determined by the Department, destroy and certify to the
Department the destruction of all documents released under the
protective order and all other documents containing the proprietary
information (such as briefs, notes, or charts based on any such
information received under the protective order); and
* * * * *
(3) Filing of applications. A person described in Sec. 356.9(a),
(b), (d), (e), (f), or (g) shall file the completed application with
the United States section of the Secretariat which, in turn, shall
provide the application to the Department. A letter of transmittal and
proposed protective order must be included with the application.
(4) * * *
(i) Persons described in Sec. Sec. 356.9(b) (counsel, etc.). A
person described in Sec. 356.9(b) who files an application before the
expiration of the time period fixed under the Article 10.12 Binational
Panel Rules for filing a Notice of Appearance in the panel review shall
serve the application on each person listed on the service list in
accordance with paragraphs (b)(4)(ii) and (iii) of this section. In any
other case, such person shall serve the application on each
participant, other than the investigating authority, in accordance with
paragraphs (b)(4)(ii) and (iii).
(ii) * * *
(B) Sending a copy of the document to the service address of the
participant by electronic means or by expedited delivery courier or
expedited mail service;
(C) Personal service on the participant; or
(D) Filing the document using the United States section of the
Secretariat's electronic filing platform.
(iii) Proof and date of service. A proof of service shall appear
on, or be affixed to, the document. Where a document is served by
expedited delivery courier or expedited mail service, the date of
service set out in the affidavit of service or certificate of service
shall be the day on which the document is consigned to the expedited
delivery courier service or expedited mail service. If a document is
served by electronic means, the date of service shall be the day on
which the document is sent by the sender. If a document is filed using
the United States section of the Secretariat's electronic filing
platform, the date of service shall be the date of filing.
(5) Release to employees of panelists, committee members, and
counsel or professionals. A person described in Sec. 356.9(c),
including a paralegal, law clerk, or secretary, may be permitted access
to proprietary information disclosed under protective order by the
counsel, professional, panelist, or extraordinary challenge committee
member who retains or employs such person, if such person has agreed to
the terms of the protective order issued to the counsel, professional,
panelist, or extraordinary challenge committee member, by signing and
dating a completed application for protective order of the
representative counsel, professional, panelist or extraordinary
challenge committee member in the location indicated in that
application.
* * * * *
(c) * * *
(1) * * *
(i) Upon receipt by the Department of an application from a person
described in Sec. 356.9(a), the Department will issue a protective
order authorizing disclosure of proprietary information included in the
administrative record of the final determination that is the subject of
the panel review at issue. The Department shall transmit the protective
order to the United States section of the Secretariat which, in turn,
shall transmit the order to the applicant and serve the order on each
participant, other than the investigating authority, in accordance with
paragraphs (b)(4)(ii) and (iii) of this section.
* * * * *
(2) * * *
(i) Opportunity to object to disclosure. The Department will not
rule on an application filed by a person described in Sec. 356.9(b)
until at least ten days after the request is filed, unless there is
compelling need to rule more expeditiously. Unless the Department has
indicated otherwise, any person may file an objection to the
application within seven days of filing of the application. Any such
objection shall state the specific reasons in the view of such person
why the application should not be granted. The objection shall be
served on the applicant and on all persons who were served with the
application. Service shall be made in accordance with paragraphs
(b)(4)(ii) and (iii) of this section. Any reply to an objection will be
considered if it is filed before the Department renders a decision.
* * * * *
(v) Issuance of protective orders. If the Department issues a
protective order to a person described in Sec. 356.9(b), that person
shall immediately file the protective order with the United States
section of the Secretariat and shall serve the order on each
participant, other than the investigating authority, in accordance with
paragraphs (b)(4)(ii) and (iii) of this section.
(3) Persons described in Sec. 356.9(d) or (g) (Secretaries, etc.,
or court reporters, etc.). Upon receipt by the Department of an
application from a person described in Sec. 356.9(d) or (g), the
Department will issue a protective order authorizing disclosure of
proprietary information to the applicant. The Department shall transmit
the protective order to the United States section of the Secretariat.
(4) * * *
(i) Upon receipt by the Department of an application from a person
described in Sec. 356.9(e) or (f), the Department will issue a
protective order authorizing disclosure of proprietary information
included in the record of the panel review at issue. The Department
shall transmit the protective order to the United States section of the
Secretariat which, in turn, shall transmit the order to the applicant
and serve the order on each participant, other than the investigating
authority, in accordance with paragraphs (b)(4)(ii) and (iii) of this
section.
(d) * * *
(2) Issuance of modification or revocation. If the Department
modifies or revokes a protective order pursuant to this paragraph (d),
the Department shall transmit the modification or Notice of Revocation
to the United States section of the Secretariat which, in turn, shall
transmit the document to the person to whom the protective order was
issued and serve the document on each participant, other than the
investigating authority, in accordance with paragraphs (b)(4)(ii) and
(iii) of this section.
0
11. In Sec. 356.11:
0
a. Revise paragraphs (a)(1)(i), (a)(2) and (3), (a)(5) and (6), (b)(1),
(b)(2)(ii) and (iii), and (c)(1)(i);
0
b. Remove and reserve paragraph (c)(1)(ii); and
0
c. Revise paragraphs (c)(2) and (3) and (d)(2).
The revisions read as follows:
[[Page 70051]]
Sec. 356.11 Procedures for obtaining access to privileged
information.
(a) * * *
(1) * * *
(i) If a panel decides that in camera examination of a document
containing privileged information in an administrative record is
necessary in order for the panel to determine whether the document, or
portions thereof, should be disclosed under a Protective Order for
Privileged Information, each panelist who is to conduct the in camera
review, pursuant to the rules of procedure adopted by the United States
and the free trade area countries to implement Article 10.12 of the
Agreement, shall submit an application for disclosure of the privileged
information under Protective Order for Privileged Information to the
United States section of the Secretariat for filing with the
Department; and
* * * * *
(2) Designated officials of the United States Government. Where, in
the course of a panel review, the panel has reviewed privileged
information under a Protective Order for Privileged Information, and
the issue to which such information pertains is relevant to the
evaluation of whether the United States should request an extraordinary
challenge committee, each official of the United States Government
(other than an officer or employee of the investigating authority that
issued the final determination subject to review) whom the United
States Trade Representative informs the Department requires access for
the purpose of such evaluation shall file an application for a
Protective Order for Privileged Information with the United States
section of the Secretariat which, in turn, shall submit the application
to the Department.
(3) Designated officials of the government of a FTA country. Where,
in the course of a panel review, the panel has reviewed privileged
information under a Protective Order for Privileged Information, and
the issue to which such information pertains is relevant to the
evaluation of whether the Government of an involved FTA country should
request an extraordinary challenge committee, each official of the
Government of the involved FTA country whom an authorized agency of the
involved FTA country informs the Department requires access for the
purpose of such evaluation shall file an application for a Protective
Order for Privileged Information with the United States section of the
Secretariat which, in turn, shall submit the application to the
Department.
* * * * *
(5) Counsel or a professional under the direction or control of
counsel. If the panel decides, in accordance with the Article 10.12
Binational Panel Rules, that disclosure of a document containing
privileged information is appropriate, a counsel or a professional
under the direction or control of counsel identified in such a decision
as entitled to release of information under a Protective Order for
Privileged Information shall submit an application for a Protective
Order for Privileged Information. Any such person shall:
(i) File the application with the United States section of the
Secretariat which, in turn, shall submit the application to the
Department; and
(ii) As soon as the deadline fixed under the Article 10.12
Binational Panel Rules for filing a Notice of Appearance in the panel
review has passed, shall serve the application on each participant,
other than the investigating authority, in accordance with paragraphs
(b)(4)(ii) and (iii) of this section.
(6) Other designated persons. If the panel decides, in accordance
with the Article 10.12 Binational Panel Rules, that disclosure of a
document containing privileged information is appropriate, any person
identified in such a decision as entitled to release of information
under a Protective Order for Privileged Information, e.g., a Secretary,
Secretariat staff, court reporters, interpreters and translators, or a
member of the staff of a panelist or extraordinary challenge committee
member, shall submit an application for release under Protective Order
for Privileged Information to the United States section of the
Secretariat for filing with the Department.
(b) * * *
(1) The Department has adopted application forms for disclosure of
privileged information which are available from the United States
section of the Secretariat and the Central Records Unit, Room B8024,
U.S. Department of Commerce, 14th Street and Constitution Avenue NW,
Washington, DC 20230. These forms may be amended from time to time.
(2) * * *
(ii) Use such information solely for purposes of the proceedings
under Article 10.12 of the Agreement;
(iii) Upon completion of the panel review, or at such earlier date
as may be determined by the Department, destroy and certify to the
Department the destruction of all documents released under the
Protective Order for Privileged Information and all other documents
containing the privileged information (such as briefs, notes, or charts
based on any such information received under the Protective Order for
Privileged Information); and
* * * * *
(c) * * *
(1) * * *
(i) Upon receipt of an application for protective order under this
section from a panelist, designated government official or member of an
extraordinary challenge committee, the Department shall issue a
Protective Order for Privileged Information. The Department shall
transmit the protective order to the United States section of the
Secretariat which, in turn, shall transmit the order to the applicant
and serve the order on each participant, other than the investigating
authority, in accordance with Sec. Sec. 356.10(b)(4)(ii) and (iii).
* * * * *
(2) Counsel or a professional under the direction or control of
counsel. Upon receipt of an application for protective order under this
section from a counsel or a professional under the direction or control
of counsel, the Department shall issue a Protective Order for
Privileged Information. If the Department issues a protective order to
such person, that person shall immediately file the protective order
with the United States section of the Secretariat and shall serve the
order on each participant, other than the investigating authority, in
accordance with Sec. 356.10(b)(4)(ii) and (iii).
(3) Other designated persons described in paragraph (a)(6) of this
section. Upon receipt of an application for protective order under this
section from a designated person described in paragraph (a)(6) of this
section, the Department shall issue a Protective Order for Privileged
Information. The Department shall transmit the protective order to the
United States section of the Secretariat.
(d) * * *
(2) Issuance of modification or revocation. If the Department
modifies or revokes a Protective Order for Privileged Information
pursuant to this paragraph (d), the Department shall transmit the
modification or Notice of Revocation to the United States section of
the Secretariat which, in turn, shall transmit the document to the
person to whom the protective order was issued and serve the document
on each participant, other than the investigating authority, in
accordance with Sec. 356.10(b)(4)(ii) and (iii).
[[Page 70052]]
0
12. In Sec. 356.12, revise paragraph (a)(5) to read as follows:
Sec. 356.12 Sanctions for violation of a protective order or
disclosure undertaking.
(a) * * *
(5) Required to destroy and certify to the Department the
destruction of all material previously provided by the investigating
authority, and all other materials containing the proprietary
information, such as briefs, notes, or charts based on any such
information received under a protective order or a disclosure
undertaking.
* * * * *
0
13. In Sec. 356.14, revise paragraphs (d)(2) and (4) to read as
follows:
Sec. 356.14 Report of violation and investigation.
* * * * *
(d) * * *
(2) Failure to follow the detailed procedures outlined in the
protective order for safeguarding proprietary information, including
requiring all employees who obtain access to proprietary information
(under the terms of a protective order granted their employer) to sign
and date a copy of that protective order.
* * * * *
(4) Failure to destroy and certify to the Department the
destruction of all copies of the original documents and all notes,
memoranda, and submissions containing proprietary information at the
close of the proceeding for which the data were obtained by burning or
shredding of the documents or by erasing electronic memory, computer
disk, or tape memory, as set forth in the protective order.
* * * * *
0
14. In Sec. 356.18, revise paragraph (c)(4) to read as follows:
Sec. 356.18 Interim sanctions.
* * * * *
(c) * * *
(4) Requiring the person to destroy and certify to the Department
the destruction of all material previously provided by the Department
or the investigating authority of the involved FTA country, and all
other materials containing the proprietary information, such as briefs,
notes, or charts based on any such information received under a
protective order or disclosure undertaking.
* * * * *
0
15. In Sec. 356.27, revise the paragraph (d) subject heading to read
as follows:
Sec. 356.27 Final decision.
* * * * *
(d) Contents of final decision. * * *
* * * * *
[FR Doc. 2021-26551 Filed 12-8-21; 8:45 am]
BILLING CODE 3510-DS-P
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</html>Indexed from Federal Register on December 9, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.