Procedures and Rules for Article 10.12 of the United States-Mexico-Canada Agreement, 6011-6016 [2024-01475]

Agencies

• DEPARTMENT OF COMMERCE
• International Trade Administration

[Federal Register Volume 89, Number 21 (Wednesday, January 31, 2024)]
[Rules and Regulations]
[Pages 6011-6016]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01475]


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DEPARTMENT OF COMMERCE

International Trade Administration

19 CFR Part 356

[Docket No. 231127-0278]
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: Final rule.

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SUMMARY:  The Department of Commerce (Commerce) publishes this action 
to update and make final an interim final rule that amended 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outdated cross-references to Commerce's antidumping and countervailing 
duty regulations; update outdated notice, filing, service, and 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: This final rule is effective 30 days after January 31, 2024. 
This 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.

FOR FURTHER INFORMATION CONTACT:  Nikki Kalbing, Assistant Chief 
Counsel, at (202) 482-4343, Spencer Neff, Attorney, at (202) 482-8184, 
or Scott McBride, Associate Deputy Chief Counsel, at (202) 482-6292.

SUPPLEMENTARY INFORMATION:

USCMA Background

    As 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

[[Page 6012]]

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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The Interim Final Rule

    On December 9, 2021, at 86 FR 70045, the Department published an 
interim final rule implementing the following changes and soliciting 
comments on those revisions. 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 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 adopted non-substantive 
amendments to ensure that its rules appropriately reference the USMCA. 
Commerce also adopted 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 rule and reflected in the regulatory text below.

Explanation of Regulatory Updates in the Interim Final Rule

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 adopted several changes throughout part 356 to replace 
references to NAFTA with references to the USMCA. Commerce also adopted 
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 authorized Commerce 
to promulgate such regulations as necessary or appropriate to implement 
its responsibilities under chapter 10 of the USMCA.\5\
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    \5\ See United States-Mexico-Canada Agreement Implementation Act 
of 2020, Public Law 116-113, 134 Stat. 74 (Jan. 29, 2020); 19 U.S.C. 
4582 (2020). See also North American Free Trade Agreement Act of 
1993, Public Law 103-182, 107 Stat. 2135 (Dec. 8, 1993) (section 
402(g) of the North American Free Trade Agreement Implementation Act 
(19 U.S.C. 3432(g)).
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    These changes are reflected in the title of part 356 and Sec. Sec.  
356.1, 356.2(d), 356.2(f), and 356.2(kk) (replacing references to North 
American Free Trade Agreement or NAFTA with United States-Mexico-Canada 
Agreement or USMCA); Sec. Sec.  356.1, 356.2(f), (o), (p), and (cc)(3), 
356.10(b)(1)(ii)(B), and 356.11(a)(1)(i) and (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) and (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.  356.2(h), (p), and (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 also removed 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 removed reference 
to the United States-Canada Free Trade Agreement throughout its 
regulations. These changes are reflected in the revised 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 also updated outdated regulatory cross-references in 19 
CFR part 356 to 19 CFR part 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 removed obsolete cross-references to parts 353 
and 355 and replaced them with updated references to 19 CFR part 351 to 
reflect the 1997 consolidation of the AD/CVD regulations and any 
relevant subsequent

[[Page 6013]]

regulatory changes Commerce made to part 351 thereafter.\7\
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    \6\ See 62 FR 27296, 27297 (May 19, 1997) (final rulemaking to 
eliminate Parts 353 and 355 and promulgate a single Part 351, 19 CFR 
351, in their place); see also 61 FR 7308, 7310 (Feb. 27, 1996) 
(``[I]n response to the President's Regulatory Reform Initiative, to 
reduce the amount of duplicative material in the regulations, the 
Department has consolidated the antidumping and countervailing duty 
regulations into a new Part 351, and is removing Parts 353 and 
355.'').
    \7\ See, e.g., 62 FR 27296 (May 19, 1997); 73 FR 3627 (Jan. 22, 
2008); 76 FR 39275 (July 6, 2011); 80 FR 36473 (June 25, 2015); and 
85 FR 17007 (March 26, 2020).
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    These changes are reflected in Sec.  356.2(u) (replacing cross-
references to 19 CFR 353.31(e)(2)(i) through (v) or 355.31(e)(2)(i) 
through (v) with 19 CFR 351.303(d)(2), which outlines 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) and (e)(2) and 19 CFR 355.31(d) and (e)(2) with references to 
19 CFR 351.303(b) and (d)(2), which outline Commerce's current format 
and filing requirements for document submissions); Sec. 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 also updated its regulations relating to certain outdated 
notice procedures. Specifically, current Sec. Sec.  356.6 and 356.7 
provide that Commerce will notify governments of Free Trade Agreement 
(FTA) Countries of scope determinations and contemplate that such 
determinations not be published in the Federal Register.\8\ Under 
current Sec.  356.6, when Commerce makes a scope determination, notice 
of such scope determination shall be deemed received by the Government 
of an FTA country when a certified copy of the determination is 
delivered to the chancery of the Embassy of the FTA.
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    \8\ This language originated in the 1988 interim final rule for 
the United States-Canada Free Trade Agreement. See Panel Review 
Under Article 1904 of the U.S.-Canada Free-Trade Agreement, 53 FR 
53232, 53233 (Dec. 30, 1988) (interim final rule).
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    Under Commerce's current procedures, scope rulings under 19 CFR 
351.225 are a type of ``class or kind determination,'' a term that also 
encompasses circumvention determinations under section 781 of the Act. 
In some instances, a class or kind determination may be published in 
the Federal Register. Otherwise, interested parties will be notified of 
a 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 an 
FTA country, and, therefore, it is left to the discretion of 
Commerce.\9\
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    \9\ Similarly, the relevant language in USMCA Article 10.12.4 
does not specify the method by which the importing Party must notify 
the other involved Party of determinations not published in the 
official journal: ``In the case of final determinations that are not 
published in the official journal of the importing Party, the 
importing Party shall immediately notify the other involved Party of 
such final determination where it involves goods from the other 
involved Party, and the other involved Party may request a panel 
within 30 days of receipt of such notice.'' Nor do the Article 10.12 
Binational Panel Rules, which state at Article 39(2)(c) that a 
Request for Panel Review must contain ``the date on which the notice 
of the final determination was received by the other Party if the 
final determination was not published in an official publication.'' 
There are no specific requirements on the method of notification.
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    Accordingly, Commerce revised 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 also adopted 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 also amended 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 added language to Sec.  
356.10(b)(4)(ii)(B) to allow for electronic means as a method of 
service for protective orders. Further, Commerce added 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), (c)(1)(i), (c)(2)(i) and (v), (c)(3), 
(c)(4)(i), and (d)(2), 356.11(a)(2) and (3), (a)(5)(i) and (ii), 
(c)(1)(i), (c)(2) and (3), and (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) and 
(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 also adopted 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). In addition, Commerce updated the definition of the 
term

[[Page 6014]]

``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\ 
Finally, we are making a minor addition to the interim final rule to 
revise Sec.  356.9 (g) to reflect modern practices and procedures in 
USCMA hearings and meetings. Commerce added individuals employed to 
provide audiovisual services at hearings, meetings or other events as 
needed to the list of persons authorized to receive proprietary 
information to that provision, as such persons were not included in the 
past regulation, but normally require access to such information to 
provide their services.
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    \10\ See Antidumping and Countervailing Duty Proceedings: 
Administrative Protective Order Procedures; Procedures for Imposing 
Sanctions for Violation of a Protective Order, 85 FR 24391, 24400, 
24403 (May 4, 1998) (final rule) (revising the definition of the 
term ``director'' in 19 CFR 354.2 to include ``Senior APO 
Specialist'' and to conform with changes in office director 
positions following an internal reorganization).
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Responses to Comments on the Interim Final Rule

    On January 10, 2022, Commerce received comments from the government 
of Canada (Canada) on the interim final rule. We have made some 
clarifying edits to the interim final rule in response to those 
comments.

Suspension of Liquidation Pending Binational Panel Review

    Canada requests that Commerce amend 19 CFR 356.8 to clarify that 
Commerce will order continued suspension of liquidation pending 
binational panel review upon request by a foreign government interested 
party that satisfies the criteria set out in 19 U.S.C 
1516a(g)(5)(C)(i). Canada argues that in 19 U.S.C 1516a(g)(5)(C)(i) 
(which generally covers parties to a proceeding), Congress did not 
intend to further limit the scope of suspension requests by foreign 
government interested parties. Canada further argues that 19 U.S.C 
1516a(g)(5)(C)(iii) (which lists the parties who can request continued 
suspension of liquidation) ``does not, in any way, limit the types of 
interested parties that may request continued suspension of liquidation 
. . . the eligibility criteria for suspension requests are instead set 
out in {19 U.S.C. 1516a(g)(5)(C)(i){time} , which requires that 
Commerce order continued suspension of liquidation upon the request of 
an interested party, including a foreign government interested party, 
that satisfies those criteria.'' Canada then argues that, because 
``liquidation moots a party's claim pertaining to liquidated entries,'' 
\11\ a foreign government interested party's right to review would be 
hollow in situations where parties have not requested suspension. 
Therefore, Canada requests that Commerce amend 19 CFR 356.8 to conform 
with its interpretation of the statute, and to list foreign government 
interested parties as parties that may request suspension.
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    \11\ Agro Dutch Indus. v. United States, 589 F.3d 1187, 1190 
(Fed. Cir. 2009) (discussing Zenith Radio Corp. v. United States, 
710 F.2d 806 (Fed. Cir. 1983)).
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    Canada argues that amending the Interim Rules would eliminate 
confusion caused by inconsistencies in the wording of the statute and 
the regulation. Canada identified the 2005 Administrative Review of 
Certain Softwood Lumber Products from Canada, where Commerce granted 
Canada's request for continued suspension of liquidation pending 
binational review,\12\ and the 2021 Administrative Review of Certain 
Softwood Lumber Products from Canada, where Commerce did not grant 
Canada's request, as inconsistent in this respect.\13\ Canada argues 
that the inconsistent treatment amplifies confusion caused by the 
wording of 19 CFR 356.8, which does not directly address whether 
foreign government interested parties can request suspension of 
liquidation.
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    \12\ See Certain Softwood Lumber Products from Canada, 69 FR 
75917 (Dec. 20, 2004); see also GOC's Comments at Attachment A.
    \13\ See Certain Softwood Lumber Products from Canada, 85 FR 
77163 (Dec. 1, 2020) (Canadian Lumber 2021); see also GOC's Comments 
at Attachment B (ACCESS barcode: 4075213-01) (Canadian Lumber 2021 
Memo).
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    Canada also argues that amending the Interim Rules would spare 
Commerce from the burden of addressing hundreds of unnecessary 
individual requests.
    Response:
    We disagree with Canada's interpretation of the statute. Section 19 
U.S.C. 1516a(g)(5)(C)(iii) does not provide for suspension of 
liquidation requests by foreign government interested parties. Commerce 
most recently expressed this view in the context of Canadian Lumber 
2021, in which Commerce found that there was ``no basis in U.S. law'' 
for Canada to request suspension of liquidation.\14\ Specifically, 
because 19 U.S.C. 1516a(g)(5)(C)(iii) does not include foreign 
government interested parties (as defined in 19 U.S.C. 1677(9)(B)) as 
parties to whom suspension of liquidation may apply, the statute does 
not allow for foreign government interested parties to request the 
suspension of liquidation.
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    \14\ See Canadian Lumber 2021 Memo at 1.
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    We do agree, however, with Canada that an amendment to the Interim 
Rules would resolve confusion regarding this issue. Therefore, we have 
amended 19 CFR 356.8(b)(2) to provide that ``{f{time} oreign 
governments are not listed as interested parties who may request the 
continuation of suspension under 19 U.S.C. 1516a(g)(5)(C)(iii).''
    Finally, we find that Canada's comments regarding the 
administrative burden of addressing suspension requests from interested 
parties do not supersede the correct interpretation of the statute. 
Even if the language proposed by Canada were to relieve Commerce of an 
administrative burden, that proposed language would conflict with the 
statute, and therefore the change proposed by Canada should not be 
adopted by Commerce's regulations.

Definition of ``Class or Kind Determinations''

    Canada requests that Commerce amend 19 CFR 356.2(ee) to clarify 
that the definition of ``scope determination or class or kind of 
merchandise determination'' is inclusive of circumvention inquiries and 
covered merchandise referral determinations, in addition to scope 
rulings.\15\ Canada argues that retaining ``scope determination'' as 
part of the term defined would be inconsistent with Commerce's stated 
objective and the language of the Tariff Act, in a way that risks 
unnecessary confusion. Therefore, Canada requests that Commerce excise 
the words ``scope determination or'' from 19 CFR 356.2(ee), and specify 
in 19 CFR 356.2(ee) that all determinations issued under Sec.  351.225 
(scope determinations), Sec.  351.226 (circumvention determinations), 
or Sec.  351.227 (covered merchandise determinations) fall within the 
definition of ``class or kind of merchandise determination.''
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    \15\ The Interim Rule also revised 19 CFR 356.6 and 356.7 to use 
the term ``class or kind determination'' instead of ``scope 
determination.'' Procedures and Rules for Article 10.12 of the 
United States-Mexico-Canada Agreement, 86 FR 70045, 70047 (Dec. 9, 
2021) (Interim Rule).
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    Response:
    We agree with Canada. Commerce has previously found that 
circumvention inquiries constitute ``class or kind determinations.'' 
\16\ Moreover, we agree that it is appropriate to construe covered 
merchandise determinations as class or kind determinations as defined 
by 19 U.S.C. 1516a(a)(2)(B)(vi). Finally, we

[[Page 6015]]

agree that the inclusion of the words ``scope determination or'' in 19 
CFR 356.2(ee) is confusing and inappropriate, because circumvention and 
covered merchandise determinations are distinct from scope 
determinations, but are nonetheless considered class or kind 
determinations. Therefore, we adopt the amendments proposed by Canada 
with respect to 19 CFR 356.2(ee).
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    \16\ Regulations To Improve Administration and Enforcement of 
Antidumping and Countervailing Duty Laws, 86 FR 52300, 52302 (Sep. 
20, 2021).
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APO Application Deadlines

    Canada requests that Commerce amend 19 CFR 356.10(c)(2)(i) to 
conform deadlines for considering administrative protective order (APO) 
applications to those deadlines not covered by the USMCA. Canada argues 
that that Sec.  356.10(c) of the interim rules provides too long a 
period for parties to object to APO applications and is inconsistent 
with Commerce's procedures for APO applications outside of binational 
panel reviews. Specifically, interim rule Sec.  356.10(c)(2) precludes 
Commerce from ruling on the person described in 19 CFR 356.9(b) ``until 
at least ten days after the request is filed, unless there is 
compelling need to rule more expeditiously.'' This section further 
provides that any person may file an objection to an application within 
seven days of its filing.
    Canada urges Commerce to shorten the period for parties to object, 
noting that there is no comparable provision in Commerce's non-USMCA 
regulations. Canada notes that 19 CFR 351.305(c) works well in general 
and would also work well in USMCA proceedings. Moreover, there is 
nothing in either the Rules of Procedure for Article 10.12, or the 
Court of International Trade procedures that would require this 
disparate treatment.
    Response:
    Commerce disagrees with Canada and is making no changes to its 
interim rule in this regard. Canada acknowledges that Commerce did not 
make substantive changes to 19 CFR 356.10(c)(2), and Commerce only 
updated its APO rules in 19 CFR 351.310(c) to remove the need for 
manual filing of APO applications. A change in the deadline for parties 
to object to APO applications was not included in Article 10.12 of the 
USMCA and was not contemplated by Commerce in the Interim Rule. 
Moreover, Canada does not provide a compelling reason for its proposed 
change. We disagree with Canada that we should conform our APO 
deadlines to the comparable provision in regulations outside of those 
governing binational panel reviews. The regulations and procedures for 
binational panel reviews, housed in 19 CFR part 356, are distinct from 
regulations governing Commerce's standard antidumping and 
countervailing duty proceedings, and therefore do not necessarily need 
to be conformed with those regulations. It has been Commerce's practice 
since the promulgation of the original 19 CFR 356.10(c)(2) to allow ten 
days before ruling on an APO application in a binational panel review. 
Therefore, the change proposed by Canada, pertaining to the length of 
time parties have to object to APO applications, is not necessary or 
appropriate here.

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 part 356, fall within 
this exemption. Nevertheless, on December 9, 2021, Commerce published 
an interim final rule implementing the above changes and soliciting 
comments on those revisions. On January 10, 2022, Commerce received 
comments from the government of Canada. The changes made in this final 
rule pursuant to Canada's comments will be effective 30 days after the 
publication of this rule in the Federal Register, pursuant to 5 U.S.C. 
553(d).

Executive Order 12866

    OMB has not found this rule to be a significant rulemaking under 
Executive Order 12866, as amended by Executive Order 14094.

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: January 22, 2024.
Abdelali Elouaradia,
Deputy Assistant Secretary for Enforcement and Compliance.

    For the reasons stated in the preamble, the Department of Commerce 
is adopting the interim rule amending 19 CFR part 356 published 
December 9, 2021, at 86 FR 70045, as final with the following changes:

PART 356--PROCEDURES AND RULES FOR ARTICLE 10.12 OF THE UNITED 
STATES-MEXICO-CANADA AGREEMENT

0
1. The authority citation for part 356 continues to read as follows:

    Authority:  19 U.S.C. 1516a and 1677f(f), unless otherwise 
noted.


0
2. In Sec.  356.2, revise paragraph (ee) to read as follows:


Sec.  356.2  Definitions.

* * * * *
    (ee) 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. This includes Department rulings and 
determinations issued under Sec. Sec.  351.225, 351.226, and 351.227.
* * * * *

0
3. In Sec.  356.8, revise paragraph (b)(2) to read as follows:

[[Page 6016]]

Sec.  356.8  Continued suspension of liquidation.

* * * * *
    (b) * * *
    (2) A participant in a binational panel review that was a domestic 
party to the proceeding, as described in section 771(9)(C), (D), (E), 
(F), or (G) of the Act (19 U.S.C. 1677(9)(C), (D), (E), (F) and (G)), 
may request continued suspension of liquidation of entries of 
merchandise covered by the administrative determination under review by 
the panel and that would be affected by the panel review. Foreign 
governments are not listed as interested parties who may request the 
continuation of suspension under 19 U.S.C. 1516a(g)(5)(C)(iii).
* * * * *

0
4. In Sec.  356.9, revise paragraph (g) to read as follows:


Sec.  356.9  Persons authorized to receive proprietary information

* * * * *
    (g) Every court report, interpreter, and translator employed in a 
panel or extraordinary challenge committee review, as well as 
individuals employed to provide audiovisual services at hearings, 
meetings, or other events as needed.

[FR Doc. 2024-01475 Filed 1-30-24; 8:45 am]
BILLING CODE 3510-DS-P