Procedures and Rules for Article 10.12 of the United States-Mexico-Canada Agreement

<RULE> DEPARTMENT OF COMMERCE <SUBAGY>International Trade Administration</SUBAGY> <CFR>19 CFR Part 356</CFR> <DEPDOC>[Docket No. 231127-0278]</DEPDOC> <RIN>RIN 0625-AB20</RIN> <SUBJECT>Procedures and Rules for Article 10.12 of the United States-Mexico-Canada Agreement</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Enforcement and Compliance, International Trade Administration, Department of Commerce. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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its regulations to replace references to Article 1904 of NAFTA with references to Article 10.12 of the USMCA; to update outdated cross-references to Commerce's antidumping and countervailing duty regulations; update outdated notice, filing, service, and protective order procedures; and adopt other minor corrections and updates. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> 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. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> 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. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">USCMA Background</HD> 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)  <SU>1</SU> <FTREF/> 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. <SU>2</SU> <FTREF/> <FTNT> <SU>1</SU>  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. </FTNT> <FTNT> <SU>2</SU>  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. </FTNT> 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.”  <SU>3</SU> <FTREF/> <FTNT> <SU>3</SU>  Statement of Administrative Action accompanying the USMCA Implementation Act at 26. </FTNT> 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. <SU>4</SU> <FTREF/> <FTNT> <SU>4</SU>   <E T="03">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.</E> 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. </FTNT> <HD SOURCE="HD1">The Interim Final Rule</HD> 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. <HD SOURCE="HD1">Explanation of Regulatory Updates in the Interim Final Rule</HD> <HD SOURCE="HD2">1. Updates To Reflect the Enactment of the USMCA</HD> 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. <SU>5</SU> <FTREF/> <FTNT> <SU>5</SU>   <E T="03">See</E> 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). <E T="03">See also</E> 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)). </FTNT> 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 Agreement or USMCA); §§ 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 ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 38k characters. 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