Implementing Rules for the United States-Mexico-Canada Agreement Implementation Act, 14887-14893 [2023-03662]

Agencies

• INTERNATIONAL TRADE COMMISSION

[Federal Register Volume 88, Number 47 (Friday, March 10, 2023)]
[Rules and Regulations]
[Pages 14887-14893]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03662]


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INTERNATIONAL TRADE COMMISSION

19 CFR Parts 206 and 207


Implementing Rules for the United States-Mexico-Canada Agreement 
Implementation Act

AGENCY: United States International Trade Commission.

ACTION: Final rule.

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SUMMARY: The United States International Trade Commission (Commission) 
is making technical amendments to its rules, relating to safeguard 
actions, and injury to domestic industries from imports sold at less 
than fair value or from subsidized exports, to conform with changes 
made by the United States-Mexico-Canada Agreement Implementation Act 
(USMCA Act).

DATES: 
    Effective date: April 10, 2023.
    Applicability date: The date the Agreement Between the United 
States of America, the United Mexican States, and Canada entered into 
force, July 1, 2020.

FOR FURTHER INFORMATION CONTACT: Lisa R. Barton, Secretary, United 
States International Trade Commission, telephone (202) 205-2000; 
William Gearhart, Office of the General Counsel, United States 
International Trade Commission, telephone (202) 205-3091; Garrett 
Peterson, Office of the General Counsel, United States International 
Trade Commission, telephone (202) 205-3241. Hearing-impaired 
individuals may obtain information on this matter by contacting the 
Commission's TDD terminal at 202-205-1810. General information 
concerning the Commission may also be obtained by accessing its website 
at https://www.usitc.gov.

SUPPLEMENTARY INFORMATION: The preamble below is designed to assist 
readers in understanding these technical amendments to the rules of 
practice and procedure to conform with the USMCA Act. This preamble 
provides background information, a regulatory analysis of the rules, a 
section-by-section explanation of amendments and new rules, and a 
description of the amendments and new rules.
    These rules are being promulgated in accordance with the 
Administrative Procedure Act (5 U.S.C. 553) (APA), and will be codified 
in 19 CFR parts 206 and 207.

Background

    On November 30, 2018, the ``Protocol Replacing the North American 
Free Trade Agreement with the Agreement Between the United States of 
America, the United Mexican States, and Canada'' (the Protocol) was 
signed to replace the North American Free Trade Agreement (NAFTA). The 
Agreement Between the United States of America, the United Mexican 
States (Mexico), and Canada (the USMCA) is attached as an annex to the 
Protocol and was subsequently amended to reflect certain modifications 
and technical corrections in the ``Protocol of Amendment to the 
Agreement Between the United States of America, the United Mexican 
States, and Canada,'' which the Office of the United States Trade 
Representative (USTR) signed on December 10, 2019.

[[Page 14888]]

The United States adopted the USMCA through the enactment of the USMCA 
Act on January 29, 2020, and the USMCA entered into force on July 1, 
2020.
    Section 335 of the Tariff Act of 1930 (19 U.S.C. 1335) (Tariff Act) 
authorizes the Commission to adopt such reasonable procedures, rules, 
and regulations as it deems necessary to carry out its functions and 
duties. In addition, sections 103(b) and 412(g) of the USMCA Act (19 
U.S.C. 4513(b) and 4582(g), respectively) direct the Commission to 
prescribe implementing regulations necessary or appropriate to carry 
out actions required by or authorized by the USMCA Act.
    The Commission is making technical amendments to existing rules of 
procedures and practice regarding the USMCA Act. In part 206, these 
include amendments that (1) implement provisions in section 301 of the 
Act that require the Commission to make special findings with respect 
to imports from Canada or Mexico if the Commission makes an affirmative 
determination in a global safeguard action investigation under section 
202(b) of the Trade Act of 1974; and (2) delete references to U.S.-
Canada and U.S.-Mexico bilateral safeguard actions, since section 601 
of the USMCA Act repeals former statutory provisions that provided for 
such actions. In part 207, these include amendments to the provisions 
regarding the issuance of administrative protective orders (APOs) in 
binational dispute panels concerning antidumping and countervailing 
duty determinations now covered under section 422 of the USMCA Act.

A. Subparts B, C, and D of Part 206

    Sections 301-302 of the USMCA Act implements the provisions of 
Article 10.2 of the USMCA concerning global safeguard investigations 
under section 202 of the Trade Act of 1974 (19 U.S.C. 2252). A similar 
provision appeared in sections 311-312 of the North American Free Trade 
Agreement Implementation Act (NAFTA Act); section 502(b)-(c) of the 
USMCA Act amended these provisions and transferred them to sections 
301-302 of the USMCA Act. The USMCA Act retains without substantive 
change the global safeguard procedures established under the NAFTA Act. 
For example, these unaltered provisions required that, if the 
Commission finds that increased global imports are causing or threaten 
to cause serious injury to a domestic industry, the Commission also 
must provide factual findings to the President as to whether imports 
from Canada and/or Mexico ``account for a substantial share of 
imports'' and ``contribute importantly to the serious injury caused by 
U.S. imports'' (19 U.S.C. 4551(a)). The USMCA Act maintains these and 
all global safeguard provisions from the NAFTA Act while updating 
references to the applicable agreements and implementing laws, 
consistent with sections 301-302 of the USMCA Act.
    Neither the USMCA Act nor the USMCA contains provisions for 
bilateral safeguard actions concerning imports from USMCA countries. 
Accordingly, section 601 of the USMCA Act repeals provisions under the 
NAFTA Act that had allowed for such investigations. Additionally, 
bilateral safeguard actions under the United States-Chile Free Trade 
Agreement Implementation Act (19 U.S.C. 3805 note), the Dominican 
Republic Central American-United States Free Trade Agreement 
Implementation Act (19 U.S.C. 4064), and United States-Peru Trade 
Promotion Implementation Act (19 U.S.C. 3805 note) have expired.

B. Subpart G of Part 207

    Section 422 of the USMCA Act amends U.S. law to implement Chapter 
10, Section D of the USMCA, which retains the mechanism from NAFTA for 
the establishment of binational dispute panels to resolve disputes 
between any two of the USMCA countries with respect to antidumping and 
countervailing duty cases.
    Section 422 strikes references to previous agreements and replaces 
them with references to either USMCA (for new binational disputes 
initiated after implementation of USMCA) or NAFTA (for prior binational 
disputes that are on-going following implementation of USMCA). Section 
422 does not otherwise substantively alter previous procedures 
established under the NAFTA Act. Accordingly, these technical 
amendments largely maintain the rules of practice and procedure, 
adopted in 1995, concerning the protection of business proprietary 
information (BPI), and access to that information under APO, that had 
been implemented under the NAFTA Act, while updating references to the 
applicable agreements and implementing laws. These technical amendments 
also update certain provisions consistent with agency practice 
regarding electronic filing.

Procedure for Adopting the Amendments

    The Commission ordinarily promulgates amendments to the Code of 
Federal Regulations in accordance with the notice-and-comment 
rulemaking procedure in section 553 of the Administrative Procedure Act 
(APA) (5 U.S.C. 553). That procedure entails publication of proposed 
rulemaking in the Federal Register that solicits public comments on the 
amendments, consideration by the Commission of public comments on the 
contents of the amendments, and publication of the final amendments at 
least 30 days prior to their effective date.
    In this instance, however, the Commission is amending rules in 19 
CFR parts 206 and 207 on a final basis. The Commission's authority to 
adopt final amendments without following all steps listed in section 
553 of the APA is derived from section 335 of the Tariff Act (19 U.S.C. 
1335), sections 103(b) and 412(g) of the USMCA Act (19 U.S.C. 4513(b) 
and 4582, respectively), and section 553 of the APA.
    Section 553(b) of the APA allows an agency to dispense with 
publication of a notice of proposed rulemaking when the agency for good 
cause finds that notice and public comment on the rules are 
impracticable, unnecessary, or contrary to the public interest, and the 
agency incorporates that finding and the reasons therefor into the 
rules adopted by the agency. Section 553(d)(3) of the APA allows an 
agency to dispense with the publication of notice of final rules at 
least thirty days prior to their effective date if the agency finds 
that good cause exists for not meeting the advance publication 
requirements and the agency publishes that finding along with the 
rules.
    In this instance, the Commission has determined that the requisite 
circumstances exist for dispensing with the notice, comment, and 
advance publication procedure that ordinarily precedes the adoption of 
Commission rules. The amendments to part 206 are technical amendments 
reflecting the retention in the USMCA Act of the precise requirements 
from the NAFTA Act for certain Commission findings concerning goods 
from Canada and/or Mexico when conducting a global safeguard 
investigation. The amendments to part 206 likewise reflect the 
expiration of provisions addressing bilateral safeguard actions 
involving USMCA countries. The amendments to part 207 are technical 
amendments, mostly involving changing references from the NAFTA Act to 
the USMCA Act, that do not alter the substance of agency procedures 
regarding the treatment of BPI in binational panel disputes. Given the 
technical nature of these amendments, the Commission has determined 
that publishing a notice of proposed rulemaking and providing 
opportunity for public comment is unnecessary. Moreover, the Commission

[[Page 14889]]

finds under section 553(b)(3)(B) of the APA that good cause exists to 
waive prior notice and opportunity for comment. Under section 504(k)(1) 
of the USMCA Act (19 U.S.C. 4581), challenges to final antidumping and 
countervailing duty determinations initiated on or after July 1, 2020 
will be subject to the provisions of the USMCA Act, and rules of 
procedure updating reference to the USMCA Act are thus necessary. 
Hence, it would be impracticable as well as unnecessary for the 
Commission to comply with the usual notice of proposed rulemaking and 
public comment procedure. Therefore, the Commission has determined to 
issue these technical amendments as final rules under these 
circumstances.

Regulatory Analysis of Amendments to the Commission's Rules

    The Commission has determined that the technical amendments to the 
rules do not meet the criteria described in section 3(f) of Executive 
Order 12866 (58 FR 51735, October 4, 1993) and thus do not constitute a 
``significant regulatory action'' for purposes of the Executive order.
    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) is 
inapplicable to this rulemaking because it is not one for which a 
notice of proposed rulemaking is required under 5 U.S.C. 553(b) or any 
other statute.
    The final rules do not contain federalism implications warranting 
the preparation of a federalism summary impact statement pursuant to 
Executive Order 13132 (64 FR 43255, Aug. 4, 1999).
    No actions are necessary under title II of the Unfunded Mandates 
Reform Act of 1995, Pubic Law 104-4 (2 U.S.C. 1531-1538), because the 
final rules will not result in the expenditure by state, local, and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year (adjusted annually for inflation), 
and will not significantly or uniquely affect small governments, as 
defined in 5 U.S.C. 601(5).
    These final rules are not ``major rules'' as defined by section 251 
of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 
U.S.C. 801 et seq.). Moreover, they are exempt from the reporting 
requirements of that Act because they contain rules of agency 
organization, procedure, or practice that do not substantially affect 
the rights or obligations of non-agency parties.

Section-by-Section Explanation of the Amendments

Part 206--Investigations Related to Global and Bilateral Safeguard 
Actions, Market Disruptions, Trade Diversion, and Review of Relief 
Actions

    Section 206.1 is amended to remove references to the NAFTA Act and 
to add references to the USMCA Act.
    Section 206.6 is amended to remove references to the NAFTA Act and 
to add references to the USMCA Act.
    Section 206.14(i) is amended to remove references to NAFTA 
countries and to add references to USMCA countries.
    The heading of subpart C of part 206 is amended to replace 
``NAFTA'' with ``USMCA.''
    Section 206.21 is amended to remove references to the NAFTA Act and 
to add references to the USMCA Act.
    Section 206.23 is amended to remove references to the NAFTA Act and 
NAFTA countries and to add references to the USMCA Act and USMCA 
countries.
    Section 206.24(c) is amended to remove a reference to NAFTA country 
and to add a reference to USMCA country.
    Section 206.31 is amended to remove references to agreements whose 
bilateral safeguard provisions have expired, including the United 
States-Chile Free Trade Agreement Implementation Act, the Dominican 
Republic-Central America-United States Free Trade Agreement 
Implementation Act, the NAFTA Act, and the United States-Peru Trade 
Promotion Agreement Implementation Act.
    Section 206.33(a) is amended to remove a reference to Canadian 
articles; Sec.  206.33(b) is amended to remove references to free trade 
agreements whose bilateral safeguard provisions have expired; and Sec.  
206.33(c) and (d) are amended to remove references to Canada and 
Mexico.
    Section 206.34's introductory text is amended to remove references 
to Canadian articles, Canada, and Mexico.
    Section 206.37 is amended to remove a reference to NAFTA.

Part 207, Subpart G--Implementing Regulations for the United-States-
Mexico-Canada Agreement Implementation Act

    The heading of subpart G to part 207 is amended to replace ``North 
American Free Trade Agreement'' with ``United States-Mexico-Canada 
Agreement.''
    Section 207.90 is amended to remove references to the NAFTA and 
NAFTA Act and to add references to the USMCA and USMCA Act.
    Section 207.91 definitions are amended as follows: ``Agreement'' is 
amended to reference applicable agreements, including the USMCA and 
NAFTA; ``Article 1904 Rules'' is removed; ``Binational Panel Rules'' is 
added and defined as the Rules of Procedure for Article 10.12 published 
by the United States Trade Representative in 88 FR 10171, February 16, 
2023, or, where applicable, Article 1904 of the NAFTA; ``Complaint'' is 
amended to reflect Binational Panel Rules; ``Counsel'' is amended to 
reflect the definition of counsel under applicable rules; ``Date of 
service'' is amended to add reference to electronic service; ``Days'' 
is amended to replace ``shall be'' with ``will be''; ``Extraordinary 
challenge committee'' is amended to add reference to the USMCA; ``ECC 
Rules'' is amended to add reference to the USMCA; ``Final 
determination'' is amended to add reference to the USMCA; ``Free Trade 
Area Country'' is amended to reference 19 U.S.C. 1516a(f)(9) instead of 
19 U.S.C. 1516a(f)(10); ``NAFTA Act'' is removed; ``Notice of 
appearance'' is amended to reflect applicable rules; ``Panel review'' 
is amended to add reference to the USMCA; ``Relevant FTA Secretary'' is 
removed; ``Responsible Secretary'' is added and defined as the 
Secretary of the Section of the Secretariat located in the country in 
which the final determination under review was made; ``Secretariat'' is 
amended to include reference to the USMCA; ``Service address'' is 
amended to reflect Commission practice and to allow for electronic 
service; ``USMCA Act'' is added and defined as the United States-
Mexico-Canada Implementation Act, Public Law 116-113 (January 29, 
2020); reference to the definitions set forth in Article 1904 is 
amended to reference the definitions set forth in the Binational Panel 
Rules.
    Section 207.92 is amended to remove references to the Department of 
Commerce regulations at 19 CFR part 356 and replace it with reference 
to ``Binational Panel Rules.''
    Section 207.93(b)(6) and (c)(3) are amended to add reference to 
Secretaria de Economia; Sec.  207.93(c)(2)(i) is amended to add 
reference to the website of the Commission Secretary; Sec.  
207.93(c)(2)(ii)(B) is amended to add reference to the USMCA; Sec.  
207.93(c)(4)(ii)(A) is amended to replace ``NAFTA'' with ``USMCA''; 
Sec.  207.93(c)(4)(ii)(B) is amended to replace ``Article 1904 Panel 
``with ``Binational Panel''; Sec.  207.93(c)(4)(v) is amended to 
replace ``relevant FTA secretary'' with ``Responsible Secretary''; 
Sec.  207.93(c)(5)(i) is amended

[[Page 14890]]

to replace ``NAFTA'' with ``USMCA''; Sec.  207.93(c)(5)(ii)(A) and (B) 
are amended to replace ``NAFTA'' with ``USMCA''; and Sec.  207.93(d)(1) 
is amended to replace ``United States-Canada Free Trade Agreement'' 
with ``NAFTA''.
    Section 207.94 is amended to replace ``extraordinary challenge 
committee'' with the shorthand ``ECC.''

List of Subjects in 19 CFR Parts 206 and 207

    Administrative practice and procedure, Trade agreements.

    For the reasons stated in the preamble, the United States 
International Trade Commission amends 19 CFR parts 206 and 207 as 
follows:

PART 206--INVESTIGATIONS RELATING TO GLOBAL AND BILATERAL SAFEGUARD 
ACTIONS, MARKET DISRUPTION, TRADE DIVERSION, AND REVIEW OF RELIEF 
ACTIONS

0
1. The authority citation for part 206 is revised to read as follows:

    Authority: 19 U.S.C. 1335, 2112 note, 2251-2254, 2436, 3805 
note, 4051-4065, 4101, and 4551-4552.


0
2. Section 206.1 is revised to read as follows:


Sec.  206.1  Applicability of part.

    This part applies to proceedings of the Commission under sections 
201-202, 204, and 406 of the Trade Act of 1974, as amended (19 U.S.C. 
2251-2252, 2254, and 2436), and sections 301-302 of the United States-
Mexico-Canada Implementation Act (19 U.S.C. 4551-4552) (hereinafter 
USMCA Implementation Act), and the statutory provisions listed in Sec.  
206.31 that implement bilateral safeguard provisions in other free 
trade agreements into which the United States has entered.

Subpart A--General

0
3. Section 206.6 is amended by revising paragraph (b)(2) to read as 
follows:


Sec.  206.6  Report to the President.

* * * * *
    (b) * * *
    (2) In the case of a determination made under section 301(b) of the 
USMCA Implementation Act, the Commission will include in its report the 
findings with respect to the results of an examination of the factors 
other than imports which may be a cause of serious injury or threat 
thereof to the domestic industry.
* * * * *

Subpart B--Investigations Relating to Global Safeguard Actions

0
4. Section 206.14 is amended by revising paragraph (i) to read as 
follows:


Sec.  206.14  Contents of petition.

* * * * *
    (i) Imports from USMCA countries. Quantitative data indicating the 
share of imports accounted for by imports from each USMCA country 
(Canada and Mexico), and petitioner's view on the extent to which 
imports from such USMCA country or countries are contributing 
importantly to the serious injury, or threat thereof, caused by total 
imports of such article.
* * * * *

0
5. The heading for subpart C is revised to read as follows:

Subpart C--Investigations Relating to a Surge in Imports From a 
USMCA Country

0
6. Section 206.21 is revised to read as follows:


Sec.  206.21  Applicability of subpart.

    This subpart applies specifically to investigations under section 
302 of the USMCA Implementation Act (19 U.S.C. 4552). For other 
applicable rules, see subpart A of this part and part 201 of this 
chapter.

0
7. Section 206.23 is revised to read as follows:


Sec.  206.23  Who may file a request.

    If the President, under section 302(b) of the USMCA Implementation 
Act (19 U.S.C. 4552(b)), has excluded imports from a USMCA country or 
countries from an action under chapter 1 of title II of the Trade Act 
of 1974, any entity that is representative of an industry for which 
such action is being taken may request the Commission to conduct an 
investigation to determine whether a surge in such imports undermines 
the effectiveness of the action.

0
8. Section 206.24 is amended by revising paragraph (c) to read as 
follows:


Sec.  206.24  Contents of request.

* * * * *
    (c) Data concerning imports from the USMCA country or countries 
that form the basis of requestor's claim that a surge in imports has 
occurred;
* * * * *

Subpart D--Investigations Relating to Bilateral Safeguard Actions

0
9. Section 206.31 is revised to read as follows:


Sec.  206.31  Applicability of subpart.

    This subpart applies specifically to investigations under section 
311(b) of the United States-Australia Free Trade Agreement 
Implementation Act (19 U.S.C. 3805 note), section 311(b) of the United 
States-Bahrain Free Trade Agreement Implementation Act (19 U.S.C. 3805 
note), section 311(b) of the United States-Colombia Trade Promotion 
Agreement Implementation Act (19 U.S.C. 3805 note), section 211(b) of 
the United States-Jordan Free Trade Area Implementation Act (19 U.S.C. 
2112 note), section 311(b) of the United States-Korea Free Trade 
Agreement Implementation Act (19 U.S.C. 3805 note), section 311(b) of 
the United States-Morocco Free Trade Agreement Implementation Act (19 
U.S.C. 3805 note), section 311(b) of the United States-Oman Free Trade 
Agreement Implementation Act (19 U.S.C. 3805 note), section 311(b) of 
the United States-Panama Trade Promotion Agreement Implementation Act 
(19 U.S.C. 3805 note), and section 311(b) of the United States-
Singapore Free Trade Agreement Implementation Act (19 U.S.C. 3805 
note). For other applicable rules, see subpart A of this part and part 
201 of this chapter.

0
10. Section 206.33 is amended by revising paragraphs (a) through (d) to 
read as follows:


Sec.  206.33  Who may file a petition.

    (a) In general. A petition under this subpart may be filed by an 
entity, including a trade association, firm, certified or recognized 
union, or group of workers, that is representative of a domestic 
industry producing an article that is like or directly competitive with 
an article that is allegedly, as a result of the reduction or 
elimination of a duty provided for under a free trade agreement listed 
in paragraph (b) of this section, being imported into the United States 
in such increased quantities, in absolute terms or relative to domestic 
production, and under such conditions that imports of the article 
constitute a substantial cause of serious injury, or threat thereof, to 
such domestic industry. Unless the implementation statute provides 
otherwise, a petition may be filed only during the transition period of 
the particular free trade agreement.
    (b) List of free trade agreements. The free trade agreements 
referred to in paragraph (a) of this section include the

[[Page 14891]]

United States-Australia Free Trade Agreement, the United States-Bahrain 
Free Trade Agreement, the United States-Colombia Trade Promotion 
Agreement, the United States-Jordan Free Trade Area Agreement, the 
United States-Korea Free Trade Agreement, the United States-Morocco 
Free Trade Agreement, the United States-Oman Free Trade Agreement, the 
United States-Panama Trade Promotion Agreement, and the United States-
Singapore Free Trade Agreement, to the extent that such agreements have 
entered into force.
    (c) Critical circumstances. An entity of the type described in 
paragraph (a) of this section that represents a domestic industry may 
allege that critical circumstances exist and petition for provisional 
relief with respect to imports if such product is from Australia, 
Jordan, Korea, Morocco, or Singapore.
    (d) Perishable agricultural product. An entity of the type 
described in paragraph (a) of this section that represents a domestic 
industry producing a perishable agricultural product may petition for 
provisional relief with respect to imports of such product from 
Australia, Jordan, Korea, Morocco, or Singapore, but only if such 
product has been subject to monitoring by the Commission for not less 
than 90 days as of the date the allegation of injury is included in the 
petition.
* * * * *

0
11. Section 206.34 is amended by revising the introductory text to read 
as follows:


Sec.  206.34  Contents of petition.

    A petition under this subpart shall include specific information in 
support of the claim that, as a result of the reduction or elimination 
of a duty provided for under a free trade agreement listed in Sec.  
206.33(b), an article is being imported into the United States in such 
increased quantities, in absolute terms or relative to domestic 
production, and under such conditions that imports of the article 
constitute a substantial cause of serious injury, or threat thereof, to 
the domestic industry producing an article that is like or directly 
competitive with the imported article. If provisional relief is 
requested in a petition concerning an article from Australia, Jordan, 
Korea, Morocco, or Singapore, the petition shall state whether 
provisional relief is sought because critical circumstances exist or 
because the imported article is a perishable agricultural product. In 
addition, a petition filed under this subpart shall include the 
following information, to the extent that such information is publicly 
available from governmental or other sources, or best estimates and the 
basis therefor if such information is not available:
* * * * *

0
12. Section 206.37 is revised to read as follows:


Sec.  206.37   Limited disclosure of certain confidential business 
information under administrative protective order.

    Except in the case of an investigation under the United States-
Jordan Free Trade Area Implementation Act, the Secretary shall make 
available to authorized applicants, in accordance with the provisions 
of Sec.  206.17, confidential business information obtained in an 
investigation under this subpart.

PART 207--INVESTIGATIONS OF WHETHER INJURY TO DOMESTIC INDUSTRIES 
RESULTS FROM IMPORTS SOLD AT LESS THAN FAIR VALUE OR FROM 
SUBSIDIZED EXPORTS TO THE UNITED STATES

0
13. The authority citation for part 207 is revised to read as follows:

    Authority: 19 U.S.C. 1335, 1671-1677n, 2482, 3513, 4582.


0
14. The heading for subpart G is revised and the authority citation for 
subpart G is removed.
    The revision reads as follows:

Subpart G--Implementing Regulations for the United States-Mexico-
Canada Agreement

0
15. Section 207.90 is revised to read as follows:


Sec.  207.90   Scope.

    This subpart sets forth the procedures and regulations for 
implementation of Section D of Chapter 10 of the Agreement between the 
United States of America, the United Mexican States, and Canada, as 
provided by Section 422(a) of the United States-Mexico-Canada 
Implementation Act (19 U.S.C. 1677(f)). These regulations are 
authorized by section 412(g), as amended by section 504(c)(3)(G), of 
the United States-Mexico-Canada Implementation Act and 19 U.S.C. 4582.

0
16. Section 207.91 is revised and republished to read as follows:


Sec.  207.91  Definitions.

    Except as otherwise provided in this subpart, the definitions set 
forth in the Binational Panel Rules and the ECC Rules (as defined in 
this section) are applicable to this subpart and to any protective 
orders issued pursuant to this subpart. As used in this subpart--
    Administrative Law Judge means the United States Government 
employee appointed under 5 U.S.C. 310(f) to conduct proceedings under 
this part in accordance with 5 U.S.C. 554.
    Agreement means Article 10.12 of the Agreement between the United 
States of America, the United Mexican States (``Mexico''), and Canada 
entered into among these states, effective July 1, 2020 (``USMCA''); 
or, with respect to binational panel proceedings between either of 
Canada and the United States or Mexico and the United States underway 
as of the date of enactment of the Agreement, it means the Article 1904 
of the North American Free Trade Agreement entered into between the 
governments of the United States of America, Mexico, and Canada, 
effective January 1, 1994 (``NAFTA'').
    Binational Panel Rules means the Rules of Procedure for Article 
10.12 published by the United States Trade Representative in 88 FR 
10171, February 16, 2023, or, where applicable, Article 1904 of the 
NAFTA.
    Canadian Secretary means the Secretary of the Canadian section of 
the Secretariat and includes any person authorized to act on the 
Secretary's behalf.
    Charged party means a person who is charged by the Commission with 
committing a prohibited act under 19 U.S.C. 1677f(f)(3).
    Clerical person means a person such as a paralegal, secretary, or 
law clerk who is employed or retained by and under the direction and 
control of an authorized applicant.
    Commission means the United States International Trade Commission.
    Commission Secretary means the Secretary to the Commission.
    Complaint means the complaint referred to in the Binational Panel 
Rules.
    Counsel means a person entitled to appear as counsel before a 
Federal court in the United States, consistent with the Binational 
Panel and ECC Rules, and counsel for an interested person who plans to 
file a timely complaint or notice of appearance in the panel review.
    Date of service means the day a document is deposited in the mail, 
electronically sent, or delivered in person, as applicable.
    Days means calendar days, but if a deadline falls on a weekend or 
United States Federal holiday, it will be extended to the next working 
day.
    ECC Rules means the Rules of Procedure for Annex 10-B.3 published 
by the United States Trade

[[Page 14892]]

Representative in 88 FR 10171, February 16, 2023, or, where applicable, 
Annex 1904.13 of the NAFTA.
    Extraordinary challenge committee (``ECC'') means the committee 
established to review decisions of a panel or conduct of a panelist, 
pursuant to Annex 10-B.3 to Chapter 10 of the USMCA or to Annex 1904.13 
of the NAFTA.
    Final determination means ``final determination'' under Article 
10.8 of the USMCA or Article 1911 of the NAFTA.
    Free Trade Area country means the ``free trade area country'' as 
defined in 19 U.S.C. 1516a(f)(9).
    Investigative attorney means an attorney designated by the Office 
of Unfair Import Investigations to engage in inquiries and proceedings 
under Sec. Sec.  207.100 through 207.120.
    Mexican Secretary means the Secretary of the Mexican section of the 
Secretariat and includes any persons authorized to act on the 
Secretary's behalf.
    Notice of appearance means the notice of appearance provided for by 
the Binational Panel Rules or ECC Rules, as applicable.
    Panel review means review of a final determination, including 
review by an extraordinary challenge committee, pursuant to Section D 
of Chapter 10 of the USMCA or Chapter 19 of the NAFTA.
    Party means, for the purposes of Sec. Sec.  207.100 through 
207.120, either the investigative attorney(ies) or the charged 
party(ies).
    Person means, for the purposes of Sec. Sec.  207.100 through 
207.120, an individual, partnership, corporation, association, 
organization, or other entity.
    Privileged information means all information covered by the 
provisions of the second sentence of 19 U.S.C. 1677f(f)(1)(A).
    Professional means an accountant, economist, engineer, or other 
non-legal specialist who is employed by, or under the direction and 
control, of a counsel.
    Prohibited act means the violation of a protective order, the 
inducement of a violation of a protective order, or the knowing receipt 
of information the receipt of which constitutes a violation of a 
protective order.
    Proprietary information means confidential business information as 
defined in 19 CFR 201.6(a).
    Protective order means an administrative protective order issued by 
the Commission.
    Responsible Secretary means the Secretary of the Section of the 
Secretariat located in the country in which the final determination 
under review was made.
    Secretariat means the Secretariat established pursuant to Article 
30.6 of the USMCA and Article 2002 of the NAFTA, and includes the 
Secretariat sections located in Canada, the United States, and Mexico.
    Service address means the address filed with the Secretariat as the 
service address for that person, including any electronic mail address 
submitted with that address.
    Service list means the list maintained by the Commission Secretary 
under 19 CFR 201.11(d) of persons in the administrative proceeding 
leading to the final determination under panel review.
    United States Secretary means the Secretary of the United States 
section of the Secretariat and includes any person authorized to act on 
the Secretary's behalf.
    USMCA Act means the United States-Mexico-Canada Implementation Act, 
Public Law 116-113 (January 29, 2020).

0
17. Section 207.92 is revised to read as follows:


Sec.  207.92  Procedures for commencing review of final determinations.

    (a) Notice of Intent to Commence Judicial Review. A Notice of 
Intent to Commence Judicial Review shall contain such information, and 
be in such form, manner, and style, including service requirements, as 
prescribed by the Binational Panel Rules.
    (b) Request for Panel Review. A Request for Panel Review shall 
contain such information, and be in such form, manner, and style, 
including service requirements, as prescribed by the Binational Panel 
Rules.

0
18. Section 207.93 is amended by revising paragraphs (b) introductory 
text, (b)(6), (c)(2)(i), (c)(2)(ii)(B), (c)(3), (c)(4)(ii)(A) and (B), 
(c)(4)(v), (c)(5)(i) and (ii), and (d)(1) to read as follows:


Sec.  207.93  Protection of proprietary information during panel and 
committee proceedings.

* * * * *
    (b) Persons authorized to receive proprietary information under 
protective order. The following persons may be authorized by the 
Commission to receive access to proprietary information if they comply 
with the regulations in this section and such other conditions imposed 
upon them by the Commission:
* * * * *
    (6) Any officer or employee of the Government of Canada or the 
Government of Mexico who the Canadian Minister of Trade or the Mexican 
Secretary of Economia (Secretar[iacute]a de Econom[iacute]a), as the 
case may be, informs the Commission Secretary needs access to 
proprietary information to make recommendations regarding the convening 
of extraordinary challenge committees; and
* * * * *
    (c) * * *
    (2) * * *
    (i) The Commission Secretary shall adopt from time to time forms 
for submitting requests for release pursuant to protective order that 
incorporate the terms of this section. The Commission Secretary shall 
supply the United States Secretary with copies of the forms for persons 
described in paragraphs (b)(1), (4), (5), and (6) of this section. 
Other applicants may obtain the forms at the Commission Secretary's 
office at 500 E Street SW, Washington, DC 20436, or from the website of 
the Commission Secretary.
    (ii) * * *
    (B) Not use any of the proprietary information released under 
protective order and not otherwise available for purposes other than 
the particular proceedings under Section D of Chapter 10 of the USMCA, 
or Article 1904 of the NAFTA, as applicable;
* * * * *
    (3) Timing of applications. An application for any person described 
in paragraph (b)(1) or (2) of this section may be filed after a notice 
of request for panel review has been filed with the Secretariat. A 
person described in paragraph (b)(4) of this section shall file an 
application immediately upon assuming official responsibilities in the 
United States, Canadian, or Mexican Secretariat. An application for any 
person described in paragraph (b)(5) or (6) of this section may be 
filed at any time after the United States Trade Representative, the 
Canadian Minister of Trade, or the Mexican Secretar[iacute]a de 
Econom[iacute]a, as the case may be, has notified the Commission 
Secretary that such person requires access.
* * * * *
    (4) * * *
    (ii) * * *
    (A) Filing. A person described in paragraph (b)(2) of this section, 
concurrent with the filing of a complaint or notice of appearance in 
the panel review on behalf of the participant represented by such 
person, shall file the completed original of the form (USMCA APO Form 
C) and three (3) copies with the Commission Secretary, and four (4) 
copies with the United States Secretary.
    (B) Service. If an applicant files before the deadline for filing 
notices of

[[Page 14893]]

appearance for the panel review, the applicant shall concurrently serve 
each person on the service list with a copy of the application. If the 
applicant files after the deadline for filing notices of appearance for 
the panel review, the applicant shall serve each participant in the 
panel review in accordance with the applicable Binational Panel Rules 
and ECC Rules. Service on a person may be effected by delivering a copy 
to the person's service address; by sending a copy to the person's 
service address by facsimile transmission, expedited courier service, 
expedited mail service; or by personal service.
* * * * *
    (v) Applications of persons described in paragraph (b)(6) of this 
section. A person described in paragraph (b)(6) of this section shall 
submit the completed original of the protective order application to 
the Responsible Secretary. The Responsible Secretary in turn, shall 
file the original and three (3) copies with the Commission Secretary.
    (5) * * *
    (i) If counsel or a professional has been granted access in an 
administrative proceeding to proprietary information under a protective 
order that contains a provision governing continued access to that 
information during panel review, and that counsel or professional 
retains the proprietary information more than fifteen (15) days after a 
First Request for Panel Review is filed with the Secretariat, that 
counsel or professional, and such clerical persons with access on or 
after that date, become immediately subject to the terms and conditions 
of USMCA APO Form C maintained by the Commission Secretary on that date 
including provisions regarding sanctions for violations thereof.
    (ii) Any person described in paragraph (c)(5)(i) of this section, 
concurrent with the filing of a complaint or notice of appearance in 
the panel review on behalf of the participant represented by such 
person, shall:
    (A) File the completed original of the form (USMCA APO Form C) and 
three (3) copies with the Commission Secretary; and
    (B) File four (4) copies of the completed USMCA APO Form C with the 
United States Secretary.
* * * * *
    (d) * * *
    (1) Applicants described in paragraphs (b)(1), (4), (5), and (6) of 
this section. Upon approval of an application of persons described in 
paragraph (b)(1), (4), (5), or (6) of this section, the Commission 
Secretary shall issue a protective order permitting release of 
proprietary information. Any member of a binational panel proceeding 
initiated under the NAFTA to whom the Commission Secretary issues a 
protective order must countersign it and return one copy of the 
countersigned order to the United States Secretary. Any other applicant 
under paragraph (b)(1) of this section must file a copy of the order 
with the United States Secretary.
* * * * *

0
19. Section 207.94 is revised to read as follows:


Sec.  207.94  Protection of privileged information during panel and 
committee proceedings.

    If a panel or ECC decides that the Commission is required, pursuant 
to the United States law, to grant access pursuant to a protective 
order to information for which the Commission has claimed a privilege, 
any individual to whom the panel or ECC has directed the Commission 
release information and who is otherwise within the category of 
individuals eligible to receive proprietary information pursuant to 
Sec.  207.93(b), may file an application for a protective order with 
the Commission. Upon receipt of such application, the Commission 
Secretary shall certify to the Commission that a panel or ECC has 
required the Commission to release such information to specified 
persons, pursuant to 19 U.S.C. 1677f(f)(1). Twenty-four hours following 
such certification, the Commission Secretary shall issue a protective 
order releasing such information to any authorized applicant subject to 
terms and conditions equivalent to those described in Sec.  
207.93(c)(2).

    By order of the Commission.

    Issued: February 16, 2023.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2023-03662 Filed 3-9-23; 8:45 am]
BILLING CODE 7020-02-P