Procedures and Rules for Article 10.12 of the United States-Mexico-Canada Agreement, 70045-70052 [2021-26551]

Download as PDF Federal Register / Vol. 86, No. 234 / Thursday, December 9, 2021 / Rules and Regulations 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 Enforcement and Compliance, International Trade Administration, Department of Commerce. ACTION: Interim final rule; request for comments. AGENCY: 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its regulations to replace references to Article 1904 of NAFTA with references to Article 10.12 of the USMCA; to update outdated crossreferences to Commerce’s antidumping and countervailing duty regulations; update outdated notice, filing, service, and protective order procedures; and adopt other minor corrections and updates.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 https://www.Regulations.gov, 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 khammond on DSKJM1Z7X2PROD with RULES SUMMARY: VerDate Sep<11>2014 16:33 Dec 08, 2021 Jkt 256001 https://www.Regulations.gov. 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 ECCommunications@trade.gov. 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 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-MexicoCanada 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 PO 00000 Frm 00069 Fmt 4700 Sfmt 4700 70045 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 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 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 changes contained within Title VI of the Appropriations Act are retroactively effective on July 1, 2020. 3 Statement of Administrative Action accompanying the USMCA Implementation Act at 26. 4 Available at: https://ustr.gov/trade-agreements/ free-trade-agreements/united-states-mexicocanada-agreement/free-trade-commissiondecisions/usmca-free-trade-commission-decisionno-2. 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. E:\FR\FM\09DER1.SGM 09DER1 70046 Federal Register / Vol. 86, No. 234 / Thursday, December 9, 2021 / Rules and Regulations 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 khammond on DSKJM1Z7X2PROD with RULES 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 These changes are reflected in the title of part 356 and §§ 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 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)). VerDate Sep<11>2014 16:33 Dec 08, 2021 Jkt 256001 Agreement or USMCA); §§ 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); §§ 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); § 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 StatesMexico-Canada Implementation Act of 2020); § 356.2 (replacing the signing date of NAFTA, December 17, 1992 with the signing date of the amended USMCA, November 30, 2018); §§ 356.2(h), 356.2(p), and 356.2(w) (replacing references to Chapter Nineteen with Chapter Ten); § 356.2(h) (replacing references to Annex 1901.2 with Annex 10–B.1); in § 356.2(p) (replacing references to Annex 1904.13 with Annex 10–B.3); § 356.2(q) (replacing references to Article 1911 with Article 10.8); § 356.2(ff) (replacing references to Article 2002 with Article 30.6); and § 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 §§ 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 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.’’). PO 00000 Frm 00070 Fmt 4700 Sfmt 4700 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 These changes are reflected in § 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); §§ 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); § 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 §§ 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 § 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. 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 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). 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). E:\FR\FM\09DER1.SGM 09DER1 Federal Register / Vol. 86, No. 234 / Thursday, December 9, 2021 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES 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 Accordingly, Commerce is revising § 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 § 356.7. In addition, for ease of reference the definition for scope determination in § 356.2(ee) has been expanded to include reference to class or kind of merchandise determination. Commerce is also amending §§ 356.10 and 356.11 regarding the procedures for access to proprietary and privileged information during a USMCA binational panel dispute. Current § 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 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. VerDate Sep<11>2014 16:33 Dec 08, 2021 Jkt 256001 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 § 356.10(b)(3) have been updated to remove the requirement for manual filing. Additionally, current § 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 § 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 (§ 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 § 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 §§ 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 §§ 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 §§ 356.10(b)(1)(i) and 356.11(b)(1) (updating the address and the room number of the Central Records Unit); §§ 356.7(b) and 356.8(d)(1) (updating the address and the room number of the APO/Dockets Unit); §§ 356.2(ee) and 356.27(d) (correcting punctuation); PO 00000 Frm 00071 Fmt 4700 Sfmt 4700 70047 § 356.2(kk) (correcting the address of the Commerce Department); § 356.2(bb)(2) (updating the name of Mexico’s Secretaria de Comercio y Fomento Industrial to the Secretariat of Economy); and § 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 § 356.2(n) to correspond with the current definition in 19 CFR part 354, revised by Commerce in 1998.10 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, 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). 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.’’ E:\FR\FM\09DER1.SGM 09DER1 70048 Federal Register / Vol. 86, No. 234 / Thursday, December 9, 2021 / Rules and Regulations 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. 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 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. 2. Revise the heading to part 356 to read as set forth above. ■ 3. Revise § 356.1 to read as follows: ■ § 356.1 § 356.2 khammond on DSKJM1Z7X2PROD with RULES 13 See changes described above under ‘‘Updates to Address Outdated Notice, Filing, Service, and Protective Order Procedures.’’ 14 See discussion of changes to §§ 356.2(ee); 356.7; 356.8; 356.10; 356.11; 356.12; 356.14; and 356.18. 15 See discussion of changes to § 356.6 and corresponding revisions to § 356.7. 16 See changes described under ‘‘Other Minor Corrections and Updates.’’ VerDate Sep<11>2014 16:33 Dec 08, 2021 Jkt 256001 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-MexicoCanada 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. ■ 4. In § 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: 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; * * * * * PO 00000 Frm 00072 Fmt 4700 Sfmt 4700 (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 * * * * * E:\FR\FM\09DER1.SGM 09DER1 khammond on DSKJM1Z7X2PROD with RULES Federal Register / Vol. 86, No. 234 / Thursday, December 9, 2021 / Rules and Regulations (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. 5. In § 356.3, revise the introductory text to read as follows: ■ VerDate Sep<11>2014 16:33 Dec 08, 2021 Jkt 256001 § 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: * * * * * ■ 6. In § 356.4, revise the introductory text to read as follows: § 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: * * * * * ■ 7. Revise § 356.6 to read as follows: § 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. ■ 8. In § 356.7, revise paragraphs (a), (b), and (c) to read as follows: § 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. PO 00000 Frm 00073 Fmt 4700 Sfmt 4700 70049 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). * * * * * ■ 9. In § 356.8, revise paragraphs (d)(1) and (2) to read as follows: § 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). * * * * * ■ 10. In § 356.10: ■ a. Revise paragraphs (b)(1)(i), (b)(1)(ii)(B) and (C), (b)(3), (b)(4)(i), and (b)(4)(ii)(B) and (C); ■ b. Add paragraph (b)(4)(ii)(D); ■ c. Revise paragraphs (b)(4)(iii), (b)(5), and (c)(1)(i); ■ d. Remove and reserve paragraph (c)(1)(ii); and ■ e. Revise paragraphs (c)(2)(i) and (v), (c)(3), (c)(4)(i), and (d)(2). The revisions and addition read as follows: § 356.10 Procedures for obtaining access to proprietary information. * * * * * (b) * * * (1) * * * (i) The Department has adopted application forms for disclosure of E:\FR\FM\09DER1.SGM 09DER1 khammond on DSKJM1Z7X2PROD with RULES 70050 Federal Register / Vol. 86, No. 234 / Thursday, December 9, 2021 / Rules and Regulations 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 § 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 §§ 356.9(b) (counsel, etc.). A person described in § 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 VerDate Sep<11>2014 16:33 Dec 08, 2021 Jkt 256001 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 § 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 § 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 § 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 PO 00000 Frm 00074 Fmt 4700 Sfmt 4700 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 § 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 § 356.9(d) or (g) (Secretaries, etc., or court reporters, etc.). Upon receipt by the Department of an application from a person described in § 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 § 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. ■ 11. In § 356.11: ■ 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); ■ b. Remove and reserve paragraph (c)(1)(ii); and ■ c. Revise paragraphs (c)(2) and (3) and (d)(2). The revisions read as follows: E:\FR\FM\09DER1.SGM 09DER1 Federal Register / Vol. 86, No. 234 / Thursday, December 9, 2021 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES § 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, VerDate Sep<11>2014 16:33 Dec 08, 2021 Jkt 256001 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 PO 00000 Frm 00075 Fmt 4700 Sfmt 4700 70051 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 §§ 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 § 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 § 356.10(b)(4)(ii) and (iii). E:\FR\FM\09DER1.SGM 09DER1 70052 Federal Register / Vol. 86, No. 234 / Thursday, December 9, 2021 / Rules and Regulations ■ 12. In § 356.12, revise paragraph (a)(5) to read as follows: § 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. * * * * * ■ 13. In § 356.14, revise paragraphs (d)(2) and (4) to read as follows: § 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. * * * * * ■ 14. In § 356.18, revise paragraph (c)(4) to read as follows: § 356.18 Interim sanctions. khammond on DSKJM1Z7X2PROD with RULES * * * * * (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. * * * * * ■ 15. In § 356.27, revise the paragraph (d) subject heading to read as follows: § 356.27 * * Final decision. * VerDate Sep<11>2014 * * 16:33 Dec 08, 2021 Jkt 256001 * (d) Contents of final decision. * * * * * * * [FR Doc. 2021–26551 Filed 12–8–21; 8:45 am] BILLING CODE 3510–DS–P DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 1141 [Docket No. FDA–2019–N–3065] RIN 0910–AI39 Tobacco Products; Required Warnings for Cigarette Packages and Advertisements; Delayed Effective Date AGENCY: Food and Drug Administration, HHS. ACTION: Final rule; delay of effective date. As required by an order issued by the U.S. District Court for the Eastern District of Texas, this action delays the effective date of the final rule (‘‘Tobacco Products; Required Warnings for Cigarette Packages and Advertisements’’), which published on March 18, 2020. The new effective date is January 9, 2023. DATES: The effective date of the rule amending 21 CFR part 1141 published at 85 FR 15638, March 18, 2020, and delayed at 85 FR 32293, May 29, 2020; 86 FR 3793, January 15, 2021; 86 FR 36509, July 12, 2021; and 86 FR 50854, September 13, 2021, is further delayed until January 9, 2023. FOR FURTHER INFORMATION CONTACT: Courtney Smith, Office of Regulations, Center for Tobacco Products, Food and Drug Administration, Document Control Center, 10903 New Hampshire Ave., Bldg. 71, Rm. G335, Silver Spring, MD 20993–0002, 1–877–287–1371, email: CTPRegulations@fda.hhs.gov. SUPPLEMENTARY INFORMATION: In the Federal Register of March 18, 2020, the Food and Drug Administration (FDA or Agency) issued a final rule establishing new cigarette health warnings for cigarette packages and advertisements. The final rule implements a provision of the Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act) (Pub. L. 111–31) that requires FDA to issue regulations requiring color graphics depicting the negative health consequences of smoking to accompany new textual warning label statements. The Tobacco Control Act amends the Federal Cigarette Labeling and Advertising Act of 1965 (Pub. L. 89–92) SUMMARY: PO 00000 Frm 00076 Fmt 4700 Sfmt 4700 to require each cigarette package and advertisement to bear one of the new required warnings. The final rule specifies the 11 new textual warning label statements and accompanying color graphics. Pursuant to section 201(b) of the Tobacco Control Act, the rule was published with an effective date of June 18, 2021, 15 months after the date of publication of the final rule. On April 3, 2020, the final rule was challenged in the U.S. District Court for the Eastern District of Texas.1 On May 8, 2020, the court granted a joint motion to govern proceedings in that case and postpone the effective date of the final rule by 120 days.2 On December 2, 2020, the court granted a new motion by the plaintiffs to postpone the effective date of the final rule by an additional 90 days.3 On March 2, 2021, the court granted another motion by the plaintiffs to postpone the effective date of the final rule by an additional 90 days.4 On May 21, 2021, the court granted another motion by the plaintiffs to postpone the effective date of the final rule by an additional 90 days.5 On August 18, 2021, the court issued an order to postpone the effective date of the final rule by an additional 90 days.6 On November 12, 2021, the court issued another order to postpone the effective date of the final rule by an additional 90 days.7 The court ordered that the new effective date of the final rule is January 9, 2023. Pursuant to the court order, any obligation to comply with a deadline tied to the effective date is similarly postponed, and those obligations and deadlines are now tied to the postponed effective date. To the extent that 5 U.S.C. 553 applies to this action, the Agency’s implementation of this action without opportunity for public comment, effective immediately upon publication today in the Federal Register, is based on the good cause exception in 5 U.S.C. 1 R.J. Reynolds Tobacco Co. et al. v. United States Food and Drug Administration et al., No. 6:20–cv– 00176 (E.D. Tex. filed April 3, 2020). 2 R.J. Reynolds Tobacco Co., No. 6:20–cv–00176 (E.D. Tex. May 8, 2020) (order granting joint motion and establishing schedule), Doc. No. 33. 3 R.J. Reynolds Tobacco Co., No. 6:20–cv–00176 (E.D. Tex. December 2, 2020) (order granting Plaintiffs’ motion and postponing effective date), Doc. No. 80. 4 R.J. Reynolds Tobacco Co., No. 6:20–cv–00176 (E.D. Tex. March 2, 2021) (order granting Plaintiffs’ motion and postponing effective date), Doc. No. 89. 5 R.J. Reynolds Tobacco Co., No. 6:20–cv–00176 (E.D. Tex. May 21, 2021) (order granting Plaintiffs’ motion and postponing effective date), Doc. No. 91. 6 R.J. Reynolds Tobacco Co., No. 6:20–cv–00176 (E.D. Tex. August 18, 2021) (order postponing effective date), Doc. No. 92. 7 R.J. Reynolds Tobacco Co., No. 6:20–cv–00176 (E.D. Tex. November 12, 2021) (order postponing effective date), Doc. No. 93. E:\FR\FM\09DER1.SGM 09DER1

Agencies

[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 [www.gpo.gov]
[FR Doc No: 2021-26551]



[[Page 70045]]

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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 https://www.Regulations.gov, 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 https://www.Regulations.gov. 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 [email protected].

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: https://ustr.gov/trade-agreements/free-trade-agreements/united-states-mexico-canada-agreement/free-trade-commission-decisions/usmca-free-trade-commission-decision-no-2. 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\
---------------------------------------------------------------------------

    \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)).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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.''
---------------------------------------------------------------------------

    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