Rule2023-03662
Implementing Rules for the United States-Mexico-Canada Agreement Implementation Act
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
March 10, 2023
Effective
April 10, 2023
Issuing agencies
International Trade Commission
Abstract
The United States International Trade Commission (Commission) is making technical amendments to its rules, relating to safeguard actions, and injury to domestic industries from imports sold at less than fair value or from subsidized exports, to conform with changes made by the United States-Mexico-Canada Agreement Implementation Act (USMCA Act).
Full Text
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<title>Federal Register, Volume 88 Issue 47 (Friday, March 10, 2023)</title>
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[Federal Register Volume 88, Number 47 (Friday, March 10, 2023)]
[Rules and Regulations]
[Pages 14887-14893]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-03662]
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INTERNATIONAL TRADE COMMISSION
19 CFR Parts 206 and 207
Implementing Rules for the United States-Mexico-Canada Agreement
Implementation Act
AGENCY: United States International Trade Commission.
ACTION: Final rule.
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SUMMARY: The United States International Trade Commission (Commission)
is making technical amendments to its rules, relating to safeguard
actions, and injury to domestic industries from imports sold at less
than fair value or from subsidized exports, to conform with changes
made by the United States-Mexico-Canada Agreement Implementation Act
(USMCA Act).
DATES:
Effective date: April 10, 2023.
Applicability date: The date the Agreement Between the United
States of America, the United Mexican States, and Canada entered into
force, July 1, 2020.
FOR FURTHER INFORMATION CONTACT: Lisa R. Barton, Secretary, United
States International Trade Commission, telephone (202) 205-2000;
William Gearhart, Office of the General Counsel, United States
International Trade Commission, telephone (202) 205-3091; Garrett
Peterson, Office of the General Counsel, United States International
Trade Commission, telephone (202) 205-3241. Hearing-impaired
individuals may obtain information on this matter by contacting the
Commission's TDD terminal at 202-205-1810. General information
concerning the Commission may also be obtained by accessing its website
at <a href="https://www.usitc.gov">https://www.usitc.gov</a>.
SUPPLEMENTARY INFORMATION: The preamble below is designed to assist
readers in understanding these technical amendments to the rules of
practice and procedure to conform with the USMCA Act. This preamble
provides background information, a regulatory analysis of the rules, a
section-by-section explanation of amendments and new rules, and a
description of the amendments and new rules.
These rules are being promulgated in accordance with the
Administrative Procedure Act (5 U.S.C. 553) (APA), and will be codified
in 19 CFR parts 206 and 207.
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) 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,'' which the Office of the United States Trade
Representative (USTR) signed on December 10, 2019.
[[Page 14888]]
The United States adopted the USMCA through the enactment of the USMCA
Act on January 29, 2020, and the USMCA entered into force on July 1,
2020.
Section 335 of the Tariff Act of 1930 (19 U.S.C. 1335) (Tariff Act)
authorizes the Commission to adopt such reasonable procedures, rules,
and regulations as it deems necessary to carry out its functions and
duties. In addition, sections 103(b) and 412(g) of the USMCA Act (19
U.S.C. 4513(b) and 4582(g), respectively) direct the Commission to
prescribe implementing regulations necessary or appropriate to carry
out actions required by or authorized by the USMCA Act.
The Commission is making technical amendments to existing rules of
procedures and practice regarding the USMCA Act. In part 206, these
include amendments that (1) implement provisions in section 301 of the
Act that require the Commission to make special findings with respect
to imports from Canada or Mexico if the Commission makes an affirmative
determination in a global safeguard action investigation under section
202(b) of the Trade Act of 1974; and (2) delete references to U.S.-
Canada and U.S.-Mexico bilateral safeguard actions, since section 601
of the USMCA Act repeals former statutory provisions that provided for
such actions. In part 207, these include amendments to the provisions
regarding the issuance of administrative protective orders (APOs) in
binational dispute panels concerning antidumping and countervailing
duty determinations now covered under section 422 of the USMCA Act.
A. Subparts B, C, and D of Part 206
Sections 301-302 of the USMCA Act implements the provisions of
Article 10.2 of the USMCA concerning global safeguard investigations
under section 202 of the Trade Act of 1974 (19 U.S.C. 2252). A similar
provision appeared in sections 311-312 of the North American Free Trade
Agreement Implementation Act (NAFTA Act); section 502(b)-(c) of the
USMCA Act amended these provisions and transferred them to sections
301-302 of the USMCA Act. The USMCA Act retains without substantive
change the global safeguard procedures established under the NAFTA Act.
For example, these unaltered provisions required that, if the
Commission finds that increased global imports are causing or threaten
to cause serious injury to a domestic industry, the Commission also
must provide factual findings to the President as to whether imports
from Canada and/or Mexico ``account for a substantial share of
imports'' and ``contribute importantly to the serious injury caused by
U.S. imports'' (19 U.S.C. 4551(a)). The USMCA Act maintains these and
all global safeguard provisions from the NAFTA Act while updating
references to the applicable agreements and implementing laws,
consistent with sections 301-302 of the USMCA Act.
Neither the USMCA Act nor the USMCA contains provisions for
bilateral safeguard actions concerning imports from USMCA countries.
Accordingly, section 601 of the USMCA Act repeals provisions under the
NAFTA Act that had allowed for such investigations. Additionally,
bilateral safeguard actions under the United States-Chile Free Trade
Agreement Implementation Act (19 U.S.C. 3805 note), the Dominican
Republic Central American-United States Free Trade Agreement
Implementation Act (19 U.S.C. 4064), and United States-Peru Trade
Promotion Implementation Act (19 U.S.C. 3805 note) have expired.
B. Subpart G of Part 207
Section 422 of the USMCA Act amends U.S. law to implement Chapter
10, Section D of the USMCA, which retains the mechanism from NAFTA for
the establishment of binational dispute panels to resolve disputes
between any two of the USMCA countries with respect to antidumping and
countervailing duty cases.
Section 422 strikes references to previous agreements and replaces
them with references to either USMCA (for new binational disputes
initiated after implementation of USMCA) or NAFTA (for prior binational
disputes that are on-going following implementation of USMCA). Section
422 does not otherwise substantively alter previous procedures
established under the NAFTA Act. Accordingly, these technical
amendments largely maintain the rules of practice and procedure,
adopted in 1995, concerning the protection of business proprietary
information (BPI), and access to that information under APO, that had
been implemented under the NAFTA Act, while updating references to the
applicable agreements and implementing laws. These technical amendments
also update certain provisions consistent with agency practice
regarding electronic filing.
Procedure for Adopting the Amendments
The Commission ordinarily promulgates amendments to the Code of
Federal Regulations in accordance with the notice-and-comment
rulemaking procedure in section 553 of the Administrative Procedure Act
(APA) (5 U.S.C. 553). That procedure entails publication of proposed
rulemaking in the Federal Register that solicits public comments on the
amendments, consideration by the Commission of public comments on the
contents of the amendments, and publication of the final amendments at
least 30 days prior to their effective date.
In this instance, however, the Commission is amending rules in 19
CFR parts 206 and 207 on a final basis. The Commission's authority to
adopt final amendments without following all steps listed in section
553 of the APA is derived from section 335 of the Tariff Act (19 U.S.C.
1335), sections 103(b) and 412(g) of the USMCA Act (19 U.S.C. 4513(b)
and 4582, respectively), and section 553 of the APA.
Section 553(b) of the APA allows an agency to dispense with
publication of a notice of proposed rulemaking when the agency for good
cause finds that notice and public comment on the rules are
impracticable, unnecessary, or contrary to the public interest, and the
agency incorporates that finding and the reasons therefor into the
rules adopted by the agency. Section 553(d)(3) of the APA allows an
agency to dispense with the publication of notice of final rules at
least thirty days prior to their effective date if the agency finds
that good cause exists for not meeting the advance publication
requirements and the agency publishes that finding along with the
rules.
In this instance, the Commission has determined that the requisite
circumstances exist for dispensing with the notice, comment, and
advance publication procedure that ordinarily precedes the adoption of
Commission rules. The amendments to part 206 are technical amendments
reflecting the retention in the USMCA Act of the precise requirements
from the NAFTA Act for certain Commission findings concerning goods
from Canada and/or Mexico when conducting a global safeguard
investigation. The amendments to part 206 likewise reflect the
expiration of provisions addressing bilateral safeguard actions
involving USMCA countries. The amendments to part 207 are technical
amendments, mostly involving changing references from the NAFTA Act to
the USMCA Act, that do not alter the substance of agency procedures
regarding the treatment of BPI in binational panel disputes. Given the
technical nature of these amendments, the Commission has determined
that publishing a notice of proposed rulemaking and providing
opportunity for public comment is unnecessary. Moreover, the Commission
[[Page 14889]]
finds under section 553(b)(3)(B) of the APA that good cause exists to
waive prior notice and opportunity for comment. Under section 504(k)(1)
of the USMCA Act (19 U.S.C. 4581), challenges to final antidumping and
countervailing duty determinations initiated on or after July 1, 2020
will be subject to the provisions of the USMCA Act, and rules of
procedure updating reference to the USMCA Act are thus necessary.
Hence, it would be impracticable as well as unnecessary for the
Commission to comply with the usual notice of proposed rulemaking and
public comment procedure. Therefore, the Commission has determined to
issue these technical amendments as final rules under these
circumstances.
Regulatory Analysis of Amendments to the Commission's Rules
The Commission has determined that the technical amendments to the
rules do not meet the criteria described in section 3(f) of Executive
Order 12866 (58 FR 51735, October 4, 1993) and thus do not constitute a
``significant regulatory action'' for purposes of the Executive order.
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) is
inapplicable to this rulemaking because it is not one for which a
notice of proposed rulemaking is required under 5 U.S.C. 553(b) or any
other statute.
The final rules do not contain federalism implications warranting
the preparation of a federalism summary impact statement pursuant to
Executive Order 13132 (64 FR 43255, Aug. 4, 1999).
No actions are necessary under title II of the Unfunded Mandates
Reform Act of 1995, Pubic Law 104-4 (2 U.S.C. 1531-1538), because the
final rules will not result in the expenditure by state, local, and
tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year (adjusted annually for inflation),
and will not significantly or uniquely affect small governments, as
defined in 5 U.S.C. 601(5).
These final rules are not ``major rules'' as defined by section 251
of the Small Business Regulatory Enforcement Fairness Act of 1996 (5
U.S.C. 801 et seq.). Moreover, they are exempt from the reporting
requirements of that Act because they contain rules of agency
organization, procedure, or practice that do not substantially affect
the rights or obligations of non-agency parties.
Section-by-Section Explanation of the Amendments
Part 206--Investigations Related to Global and Bilateral Safeguard
Actions, Market Disruptions, Trade Diversion, and Review of Relief
Actions
Section 206.1 is amended to remove references to the NAFTA Act and
to add references to the USMCA Act.
Section 206.6 is amended to remove references to the NAFTA Act and
to add references to the USMCA Act.
Section 206.14(i) is amended to remove references to NAFTA
countries and to add references to USMCA countries.
The heading of subpart C of part 206 is amended to replace
``NAFTA'' with ``USMCA.''
Section 206.21 is amended to remove references to the NAFTA Act and
to add references to the USMCA Act.
Section 206.23 is amended to remove references to the NAFTA Act and
NAFTA countries and to add references to the USMCA Act and USMCA
countries.
Section 206.24(c) is amended to remove a reference to NAFTA country
and to add a reference to USMCA country.
Section 206.31 is amended to remove references to agreements whose
bilateral safeguard provisions have expired, including the United
States-Chile Free Trade Agreement Implementation Act, the Dominican
Republic-Central America-United States Free Trade Agreement
Implementation Act, the NAFTA Act, and the United States-Peru Trade
Promotion Agreement Implementation Act.
Section 206.33(a) is amended to remove a reference to Canadian
articles; Sec. 206.33(b) is amended to remove references to free trade
agreements whose bilateral safeguard provisions have expired; and Sec.
206.33(c) and (d) are amended to remove references to Canada and
Mexico.
Section 206.34's introductory text is amended to remove references
to Canadian articles, Canada, and Mexico.
Section 206.37 is amended to remove a reference to NAFTA.
Part 207, Subpart G--Implementing Regulations for the United-States-
Mexico-Canada Agreement Implementation Act
The heading of subpart G to part 207 is amended to replace ``North
American Free Trade Agreement'' with ``United States-Mexico-Canada
Agreement.''
Section 207.90 is amended to remove references to the NAFTA and
NAFTA Act and to add references to the USMCA and USMCA Act.
Section 207.91 definitions are amended as follows: ``Agreement'' is
amended to reference applicable agreements, including the USMCA and
NAFTA; ``Article 1904 Rules'' is removed; ``Binational Panel Rules'' is
added and defined as the Rules of Procedure for Article 10.12 published
by the United States Trade Representative in 88 FR 10171, February 16,
2023, or, where applicable, Article 1904 of the NAFTA; ``Complaint'' is
amended to reflect Binational Panel Rules; ``Counsel'' is amended to
reflect the definition of counsel under applicable rules; ``Date of
service'' is amended to add reference to electronic service; ``Days''
is amended to replace ``shall be'' with ``will be''; ``Extraordinary
challenge committee'' is amended to add reference to the USMCA; ``ECC
Rules'' is amended to add reference to the USMCA; ``Final
determination'' is amended to add reference to the USMCA; ``Free Trade
Area Country'' is amended to reference 19 U.S.C. 1516a(f)(9) instead of
19 U.S.C. 1516a(f)(10); ``NAFTA Act'' is removed; ``Notice of
appearance'' is amended to reflect applicable rules; ``Panel review''
is amended to add reference to the USMCA; ``Relevant FTA Secretary'' is
removed; ``Responsible Secretary'' is added and defined as the
Secretary of the Section of the Secretariat located in the country in
which the final determination under review was made; ``Secretariat'' is
amended to include reference to the USMCA; ``Service address'' is
amended to reflect Commission practice and to allow for electronic
service; ``USMCA Act'' is added and defined as the United States-
Mexico-Canada Implementation Act, Public Law 116-113 (January 29,
2020); reference to the definitions set forth in Article 1904 is
amended to reference the definitions set forth in the Binational Panel
Rules.
Section 207.92 is amended to remove references to the Department of
Commerce regulations at 19 CFR part 356 and replace it with reference
to ``Binational Panel Rules.''
Section 207.93(b)(6) and (c)(3) are amended to add reference to
Secretaria de Economia; Sec. 207.93(c)(2)(i) is amended to add
reference to the website of the Commission Secretary; Sec.
207.93(c)(2)(ii)(B) is amended to add reference to the USMCA; Sec.
207.93(c)(4)(ii)(A) is amended to replace ``NAFTA'' with ``USMCA'';
Sec. 207.93(c)(4)(ii)(B) is amended to replace ``Article 1904 Panel
``with ``Binational Panel''; Sec. 207.93(c)(4)(v) is amended to
replace ``relevant FTA secretary'' with ``Responsible Secretary'';
Sec. 207.93(c)(5)(i) is amended
[[Page 14890]]
to replace ``NAFTA'' with ``USMCA''; Sec. 207.93(c)(5)(ii)(A) and (B)
are amended to replace ``NAFTA'' with ``USMCA''; and Sec. 207.93(d)(1)
is amended to replace ``United States-Canada Free Trade Agreement''
with ``NAFTA''.
Section 207.94 is amended to replace ``extraordinary challenge
committee'' with the shorthand ``ECC.''
List of Subjects in 19 CFR Parts 206 and 207
Administrative practice and procedure, Trade agreements.
For the reasons stated in the preamble, the United States
International Trade Commission amends 19 CFR parts 206 and 207 as
follows:
PART 206--INVESTIGATIONS RELATING TO GLOBAL AND BILATERAL SAFEGUARD
ACTIONS, MARKET DISRUPTION, TRADE DIVERSION, AND REVIEW OF RELIEF
ACTIONS
0
1. The authority citation for part 206 is revised to read as follows:
Authority: 19 U.S.C. 1335, 2112 note, 2251-2254, 2436, 3805
note, 4051-4065, 4101, and 4551-4552.
0
2. Section 206.1 is revised to read as follows:
Sec. 206.1 Applicability of part.
This part applies to proceedings of the Commission under sections
201-202, 204, and 406 of the Trade Act of 1974, as amended (19 U.S.C.
2251-2252, 2254, and 2436), and sections 301-302 of the United States-
Mexico-Canada Implementation Act (19 U.S.C. 4551-4552) (hereinafter
USMCA Implementation Act), and the statutory provisions listed in Sec.
206.31 that implement bilateral safeguard provisions in other free
trade agreements into which the United States has entered.
Subpart A--General
0
3. Section 206.6 is amended by revising paragraph (b)(2) to read as
follows:
Sec. 206.6 Report to the President.
* * * * *
(b) * * *
(2) In the case of a determination made under section 301(b) of the
USMCA Implementation Act, the Commission will include in its report the
findings with respect to the results of an examination of the factors
other than imports which may be a cause of serious injury or threat
thereof to the domestic industry.
* * * * *
Subpart B--Investigations Relating to Global Safeguard Actions
0
4. Section 206.14 is amended by revising paragraph (i) to read as
follows:
Sec. 206.14 Contents of petition.
* * * * *
(i) Imports from USMCA countries. Quantitative data indicating the
share of imports accounted for by imports from each USMCA country
(Canada and Mexico), and petitioner's view on the extent to which
imports from such USMCA country or countries are contributing
importantly to the serious injury, or threat thereof, caused by total
imports of such article.
* * * * *
0
5. The heading for subpart C is revised to read as follows:
Subpart C--Investigations Relating to a Surge in Imports From a
USMCA Country
0
6. Section 206.21 is revised to read as follows:
Sec. 206.21 Applicability of subpart.
This subpart applies specifically to investigations under section
302 of the USMCA Implementation Act (19 U.S.C. 4552). For other
applicable rules, see subpart A of this part and part 201 of this
chapter.
0
7. Section 206.23 is revised to read as follows:
Sec. 206.23 Who may file a request.
If the President, under section 302(b) of the USMCA Implementation
Act (19 U.S.C. 4552(b)), has excluded imports from a USMCA country or
countries from an action under chapter 1 of title II of the Trade Act
of 1974, any entity that is representative of an industry for which
such action is being taken may request the Commission to conduct an
investigation to determine whether a surge in such imports undermines
the effectiveness of the action.
0
8. Section 206.24 is amended by revising paragraph (c) to read as
follows:
Sec. 206.24 Contents of request.
* * * * *
(c) Data concerning imports from the USMCA country or countries
that form the basis of requestor's claim that a surge in imports has
occurred;
* * * * *
Subpart D--Investigations Relating to Bilateral Safeguard Actions
0
9. Section 206.31 is revised to read as follows:
Sec. 206.31 Applicability of subpart.
This subpart applies specifically to investigations under section
311(b) of the United States-Australia Free Trade Agreement
Implementation Act (19 U.S.C. 3805 note), section 311(b) of the United
States-Bahrain Free Trade Agreement Implementation Act (19 U.S.C. 3805
note), section 311(b) of the United States-Colombia Trade Promotion
Agreement Implementation Act (19 U.S.C. 3805 note), section 211(b) of
the United States-Jordan Free Trade Area Implementation Act (19 U.S.C.
2112 note), section 311(b) of the United States-Korea Free Trade
Agreement Implementation Act (19 U.S.C. 3805 note), section 311(b) of
the United States-Morocco Free Trade Agreement Implementation Act (19
U.S.C. 3805 note), section 311(b) of the United States-Oman Free Trade
Agreement Implementation Act (19 U.S.C. 3805 note), section 311(b) of
the United States-Panama Trade Promotion Agreement Implementation Act
(19 U.S.C. 3805 note), and section 311(b) of the United States-
Singapore Free Trade Agreement Implementation Act (19 U.S.C. 3805
note). For other applicable rules, see subpart A of this part and part
201 of this chapter.
0
10. Section 206.33 is amended by revising paragraphs (a) through (d) to
read as follows:
Sec. 206.33 Who may file a petition.
(a) In general. A petition under this subpart may be filed by an
entity, including a trade association, firm, certified or recognized
union, or group of workers, that is representative of a domestic
industry producing an article that is like or directly competitive with
an article that is allegedly, as a result of the reduction or
elimination of a duty provided for under a free trade agreement listed
in paragraph (b) of this section, being imported into the United States
in such increased quantities, in absolute terms or relative to domestic
production, and under such conditions that imports of the article
constitute a substantial cause of serious injury, or threat thereof, to
such domestic industry. Unless the implementation statute provides
otherwise, a petition may be filed only during the transition period of
the particular free trade agreement.
(b) List of free trade agreements. The free trade agreements
referred to in paragraph (a) of this section include the
[[Page 14891]]
United States-Australia Free Trade Agreement, the United States-Bahrain
Free Trade Agreement, the United States-Colombia Trade Promotion
Agreement, the United States-Jordan Free Trade Area Agreement, the
United States-Korea Free Trade Agreement, the United States-Morocco
Free Trade Agreement, the United States-Oman Free Trade Agreement, the
United States-Panama Trade Promotion Agreement, and the United States-
Singapore Free Trade Agreement, to the extent that such agreements have
entered into force.
(c) Critical circumstances. An entity of the type described in
paragraph (a) of this section that represents a domestic industry may
allege that critical circumstances exist and petition for provisional
relief with respect to imports if such product is from Australia,
Jordan, Korea, Morocco, or Singapore.
(d) Perishable agricultural product. An entity of the type
described in paragraph (a) of this section that represents a domestic
industry producing a perishable agricultural product may petition for
provisional relief with respect to imports of such product from
Australia, Jordan, Korea, Morocco, or Singapore, but only if such
product has been subject to monitoring by the Commission for not less
than 90 days as of the date the allegation of injury is included in the
petition.
* * * * *
0
11. Section 206.34 is amended by revising the introductory text to read
as follows:
Sec. 206.34 Contents of petition.
A petition under this subpart shall include specific information in
support of the claim that, as a result of the reduction or elimination
of a duty provided for under a free trade agreement listed in Sec.
206.33(b), an article is being imported into the United States in such
increased quantities, in absolute terms or relative to domestic
production, and under such conditions that imports of the article
constitute a substantial cause of serious injury, or threat thereof, to
the domestic industry producing an article that is like or directly
competitive with the imported article. If provisional relief is
requested in a petition concerning an article from Australia, Jordan,
Korea, Morocco, or Singapore, the petition shall state whether
provisional relief is sought because critical circumstances exist or
because the imported article is a perishable agricultural product. In
addition, a petition filed under this subpart shall include the
following information, to the extent that such information is publicly
available from governmental or other sources, or best estimates and the
basis therefor if such information is not available:
* * * * *
0
12. Section 206.37 is revised to read as follows:
Sec. 206.37 Limited disclosure of certain confidential business
information under administrative protective order.
Except in the case of an investigation under the United States-
Jordan Free Trade Area Implementation Act, the Secretary shall make
available to authorized applicants, in accordance with the provisions
of Sec. 206.17, confidential business information obtained in an
investigation under this subpart.
PART 207--INVESTIGATIONS OF WHETHER INJURY TO DOMESTIC INDUSTRIES
RESULTS FROM IMPORTS SOLD AT LESS THAN FAIR VALUE OR FROM
SUBSIDIZED EXPORTS TO THE UNITED STATES
0
13. The authority citation for part 207 is revised to read as follows:
Authority: 19 U.S.C. 1335, 1671-1677n, 2482, 3513, 4582.
0
14. The heading for subpart G is revised and the authority citation for
subpart G is removed.
The revision reads as follows:
Subpart G--Implementing Regulations for the United States-Mexico-
Canada Agreement
0
15. Section 207.90 is revised to read as follows:
Sec. 207.90 Scope.
This subpart sets forth the procedures and regulations for
implementation of Section D of Chapter 10 of the Agreement between the
United States of America, the United Mexican States, and Canada, as
provided by Section 422(a) of the United States-Mexico-Canada
Implementation Act (19 U.S.C. 1677(f)). These regulations are
authorized by section 412(g), as amended by section 504(c)(3)(G), of
the United States-Mexico-Canada Implementation Act and 19 U.S.C. 4582.
0
16. Section 207.91 is revised and republished to read as follows:
Sec. 207.91 Definitions.
Except as otherwise provided in this subpart, the definitions set
forth in the Binational Panel Rules and the ECC Rules (as defined in
this section) are applicable to this subpart and to any protective
orders issued pursuant to this subpart. As used in this subpart--
Administrative Law Judge means the United States Government
employee appointed under 5 U.S.C. 310(f) to conduct proceedings under
this part in accordance with 5 U.S.C. 554.
Agreement means Article 10.12 of the Agreement between the United
States of America, the United Mexican States (``Mexico''), and Canada
entered into among these states, effective July 1, 2020 (``USMCA'');
or, with respect to binational panel proceedings between either of
Canada and the United States or Mexico and the United States underway
as of the date of enactment of the Agreement, it means the Article 1904
of the North American Free Trade Agreement entered into between the
governments of the United States of America, Mexico, and Canada,
effective January 1, 1994 (``NAFTA'').
Binational Panel Rules means the Rules of Procedure for Article
10.12 published by the United States Trade Representative in 88 FR
10171, February 16, 2023, or, where applicable, Article 1904 of the
NAFTA.
Canadian Secretary means the Secretary of the Canadian section of
the Secretariat and includes any person authorized to act on the
Secretary's behalf.
Charged party means a person who is charged by the Commission with
committing a prohibited act under 19 U.S.C. 1677f(f)(3).
Clerical person means a person such as a paralegal, secretary, or
law clerk who is employed or retained by and under the direction and
control of an authorized applicant.
Commission means the United States International Trade Commission.
Commission Secretary means the Secretary to the Commission.
Complaint means the complaint referred to in the Binational Panel
Rules.
Counsel means a person entitled to appear as counsel before a
Federal court in the United States, consistent with the Binational
Panel and ECC Rules, and counsel for an interested person who plans to
file a timely complaint or notice of appearance in the panel review.
Date of service means the day a document is deposited in the mail,
electronically sent, or delivered in person, as applicable.
Days means calendar days, but if a deadline falls on a weekend or
United States Federal holiday, it will be extended to the next working
day.
ECC Rules means the Rules of Procedure for Annex 10-B.3 published
by the United States Trade
[[Page 14892]]
Representative in 88 FR 10171, February 16, 2023, or, where applicable,
Annex 1904.13 of the NAFTA.
Extraordinary challenge committee (``ECC'') means the committee
established to review decisions of a panel or conduct of a panelist,
pursuant to Annex 10-B.3 to Chapter 10 of the USMCA or to Annex 1904.13
of the NAFTA.
Final determination means ``final determination'' under Article
10.8 of the USMCA or Article 1911 of the NAFTA.
Free Trade Area country means the ``free trade area country'' as
defined in 19 U.S.C. 1516a(f)(9).
Investigative attorney means an attorney designated by the Office
of Unfair Import Investigations to engage in inquiries and proceedings
under Sec. Sec. 207.100 through 207.120.
Mexican Secretary means the Secretary of the Mexican section of the
Secretariat and includes any persons authorized to act on the
Secretary's behalf.
Notice of appearance means the notice of appearance provided for by
the Binational Panel Rules or ECC Rules, as applicable.
Panel review means review of a final determination, including
review by an extraordinary challenge committee, pursuant to Section D
of Chapter 10 of the USMCA or Chapter 19 of the NAFTA.
Party means, for the purposes of Sec. Sec. 207.100 through
207.120, either the investigative attorney(ies) or the charged
party(ies).
Person means, for the purposes of Sec. Sec. 207.100 through
207.120, an individual, partnership, corporation, association,
organization, or other entity.
Privileged information means all information covered by the
provisions of the second sentence of 19 U.S.C. 1677f(f)(1)(A).
Professional means an accountant, economist, engineer, or other
non-legal specialist who is employed by, or under the direction and
control, of a counsel.
Prohibited act means the violation of a protective order, the
inducement of a violation of a protective order, or the knowing receipt
of information the receipt of which constitutes a violation of a
protective order.
Proprietary information means confidential business information as
defined in 19 CFR 201.6(a).
Protective order means an administrative protective order issued by
the Commission.
Responsible Secretary means the Secretary of the Section of the
Secretariat located in the country in which the final determination
under review was made.
Secretariat means the Secretariat established pursuant to Article
30.6 of the USMCA and Article 2002 of the NAFTA, and includes the
Secretariat sections located in Canada, the United States, and Mexico.
Service address means the address filed with the Secretariat as the
service address for that person, including any electronic mail address
submitted with that address.
Service list means the list maintained by the Commission Secretary
under 19 CFR 201.11(d) of persons in the administrative proceeding
leading to the final determination under panel review.
United States Secretary means the Secretary of the United States
section of the Secretariat and includes any person authorized to act on
the Secretary's behalf.
USMCA Act means the United States-Mexico-Canada Implementation Act,
Public Law 116-113 (January 29, 2020).
0
17. Section 207.92 is revised to read as follows:
Sec. 207.92 Procedures for commencing review of final determinations.
(a) Notice of Intent to Commence Judicial Review. A Notice of
Intent to Commence Judicial Review shall contain such information, and
be in such form, manner, and style, including service requirements, as
prescribed by the Binational Panel Rules.
(b) Request for Panel Review. A Request for Panel Review shall
contain such information, and be in such form, manner, and style,
including service requirements, as prescribed by the Binational Panel
Rules.
0
18. Section 207.93 is amended by revising paragraphs (b) introductory
text, (b)(6), (c)(2)(i), (c)(2)(ii)(B), (c)(3), (c)(4)(ii)(A) and (B),
(c)(4)(v), (c)(5)(i) and (ii), and (d)(1) to read as follows:
Sec. 207.93 Protection of proprietary information during panel and
committee proceedings.
* * * * *
(b) Persons authorized to receive proprietary information under
protective order. The following persons may be authorized by the
Commission to receive access to proprietary information if they comply
with the regulations in this section and such other conditions imposed
upon them by the Commission:
* * * * *
(6) Any officer or employee of the Government of Canada or the
Government of Mexico who the Canadian Minister of Trade or the Mexican
Secretary of Economia (Secretar[iacute]a de Econom[iacute]a), as the
case may be, informs the Commission Secretary needs access to
proprietary information to make recommendations regarding the convening
of extraordinary challenge committees; and
* * * * *
(c) * * *
(2) * * *
(i) The Commission Secretary shall adopt from time to time forms
for submitting requests for release pursuant to protective order that
incorporate the terms of this section. The Commission Secretary shall
supply the United States Secretary with copies of the forms for persons
described in paragraphs (b)(1), (4), (5), and (6) of this section.
Other applicants may obtain the forms at the Commission Secretary's
office at 500 E Street SW, Washington, DC 20436, or from the website of
the Commission Secretary.
(ii) * * *
(B) Not use any of the proprietary information released under
protective order and not otherwise available for purposes other than
the particular proceedings under Section D of Chapter 10 of the USMCA,
or Article 1904 of the NAFTA, as applicable;
* * * * *
(3) Timing of applications. An application for any person described
in paragraph (b)(1) or (2) of this section may be filed after a notice
of request for panel review has been filed with the Secretariat. A
person described in paragraph (b)(4) of this section shall file an
application immediately upon assuming official responsibilities in the
United States, Canadian, or Mexican Secretariat. An application for any
person described in paragraph (b)(5) or (6) of this section may be
filed at any time after the United States Trade Representative, the
Canadian Minister of Trade, or the Mexican Secretar[iacute]a de
Econom[iacute]a, as the case may be, has notified the Commission
Secretary that such person requires access.
* * * * *
(4) * * *
(ii) * * *
(A) Filing. A person described in paragraph (b)(2) of this section,
concurrent with the filing of a complaint or notice of appearance in
the panel review on behalf of the participant represented by such
person, shall file the completed original of the form (USMCA APO Form
C) and three (3) copies with the Commission Secretary, and four (4)
copies with the United States Secretary.
(B) Service. If an applicant files before the deadline for filing
notices of
[[Page 14893]]
appearance for the panel review, the applicant shall concurrently serve
each person on the service list with a copy of the application. If the
applicant files after the deadline for filing notices of appearance for
the panel review, the applicant shall serve each participant in the
panel review in accordance with the applicable Binational Panel Rules
and ECC Rules. Service on a person may be effected by delivering a copy
to the person's service address; by sending a copy to the person's
service address by facsimile transmission, expedited courier service,
expedited mail service; or by personal service.
* * * * *
(v) Applications of persons described in paragraph (b)(6) of this
section. A person described in paragraph (b)(6) of this section shall
submit the completed original of the protective order application to
the Responsible Secretary. The Responsible Secretary in turn, shall
file the original and three (3) copies with the Commission Secretary.
(5) * * *
(i) If counsel or a professional has been granted access in an
administrative proceeding to proprietary information under a protective
order that contains a provision governing continued access to that
information during panel review, and that counsel or professional
retains the proprietary information more than fifteen (15) days after a
First Request for Panel Review is filed with the Secretariat, that
counsel or professional, and such clerical persons with access on or
after that date, become immediately subject to the terms and conditions
of USMCA APO Form C maintained by the Commission Secretary on that date
including provisions regarding sanctions for violations thereof.
(ii) Any person described in paragraph (c)(5)(i) of this section,
concurrent with the filing of a complaint or notice of appearance in
the panel review on behalf of the participant represented by such
person, shall:
(A) File the completed original of the form (USMCA APO Form C) and
three (3) copies with the Commission Secretary; and
(B) File four (4) copies of the completed USMCA APO Form C with the
United States Secretary.
* * * * *
(d) * * *
(1) Applicants described in paragraphs (b)(1), (4), (5), and (6) of
this section. Upon approval of an application of persons described in
paragraph (b)(1), (4), (5), or (6) of this section, the Commission
Secretary shall issue a protective order permitting release of
proprietary information. Any member of a binational panel proceeding
initiated under the NAFTA to whom the Commission Secretary issues a
protective order must countersign it and return one copy of the
countersigned order to the United States Secretary. Any other applicant
under paragraph (b)(1) of this section must file a copy of the order
with the United States Secretary.
* * * * *
0
19. Section 207.94 is revised to read as follows:
Sec. 207.94 Protection of privileged information during panel and
committee proceedings.
If a panel or ECC decides that the Commission is required, pursuant
to the United States law, to grant access pursuant to a protective
order to information for which the Commission has claimed a privilege,
any individual to whom the panel or ECC has directed the Commission
release information and who is otherwise within the category of
individuals eligible to receive proprietary information pursuant to
Sec. 207.93(b), may file an application for a protective order with
the Commission. Upon receipt of such application, the Commission
Secretary shall certify to the Commission that a panel or ECC has
required the Commission to release such information to specified
persons, pursuant to 19 U.S.C. 1677f(f)(1). Twenty-four hours following
such certification, the Commission Secretary shall issue a protective
order releasing such information to any authorized applicant subject to
terms and conditions equivalent to those described in Sec.
207.93(c)(2).
By order of the Commission.
Issued: February 16, 2023.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2023-03662 Filed 3-9-23; 8:45 am]
BILLING CODE 7020-02-P
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</html>Indexed from Federal Register on March 10, 2023.
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.