[Federal Register Volume 77, Number 122 (Monday, June 25, 2012)]
[Rules and Regulations]
[Pages 37804-37806]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-15346]



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INTERNATIONAL TRADE COMMISSION

19 CFR Part 206


Rules for Investigations Relating to Global and Bilateral 
Safeguard Actions, Market Disruption, Trade Diversion, and Review of 
Relief Actions

AGENCY: United States International Trade Commission.

ACTION: Final rule.

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SUMMARY: The United States International Trade Commission (Commission) 
is adopting as a final rule, with changes to correct three 
typographical errors, the interim rule amending its Rules of Practice 
and Procedure (Rules) that was published on January 26, 2012. The rule 
concerns the conduct of safeguard investigations under statutory 
provisions that implement bilateral safeguard provisions in free trade 
agreements that the United States has negotiated with Australia, 
Bahrain, Chile, Colombia, the Dominican Republic and five Central 
American countries (Costa Rica, El Salvador, Guatemala, Honduras, and 
Nicaragua), Jordan, Korea, Morocco, Oman, Panama, Peru, and Singapore. 
With the exception of the free trade agreement with Panama, all of the 
aforementioned free trade agreements have entered into force. The free 
trade agreement with Panama is expected to enter into force imminently. 
The interim rule amended and expanded upon rules previously in effect 
that pertained to the conduct of bilateral safeguard investigations 
under the North American Free Trade Agreement (NAFTA) Implementation 
Act with respect to imports from Canada and Mexico.

DATES: Effective date: June 25, 2012.

FOR FURTHER INFORMATION CONTACT: Lisa R. Barton, Acting Secretary, 
telephone (202) 205-2000, or William Gearhart, Esquire, Office of the 
General Counsel, United States International Trade Commission, 
telephone (202) 205-3091. Hearing-impaired individuals are advised that 
information on this matter can be obtained by contacting the 
Commission's TDD terminal at 202-205-1810. General information 
concerning the Commission may also be obtained by accessing its Web 
site at http://www.usitc.gov.

SUPPLEMENTARY INFORMATION: The preamble below is designed to assist 
readers in understanding these amendments to the Commission's Rules. 
This preamble provides background information and a regulatory analysis 
of the amendments.
    These amendments are being promulgated in accordance with the 
Administrative Procedure Act (5 U.S.C. 553) (APA), and will be codified 
in 19 CFR part 206.

Background

    Section 335 of the Tariff Act of 1930 (19 U.S.C. 1335) authorizes 
the Commission to adopt such reasonable procedures, rules and 
regulations as it deems necessary to carry out its functions and 
duties. The Commission is adopting as a final rule, with three changes 
to correct typographical errors, the interim rule published in the 
Federal Register on January 26, 2012 (77 FR 3922) governing 
investigations relating to global and bilateral safeguard actions, 
market disruption, trade diversion, and review of relief actions (part 
206 of its Rules). The final rule principally concerns subpart D of 
part 206, Investigations Relating to Bilateral Safeguard Actions, but 
also includes several technical and conforming changes to the general 
rules in subpart A of part 206. Prior to publication of the interim 
rule, the rules in subpart D applied only to Commission investigations 
under the bilateral safeguard provision in the NAFTA Implementation Act 
with respect to imports from Canada and Mexico. The Commission adopted 
the interim rule in response to legislation enacted by Congress in 
recent years that implements bilateral safeguard provisions in several 
additional free trade agreements (FTAs), including legislation approved 
on October 21, 2011, that implements FTAs with Colombia, Korea, and 
Panama. The implementing legislation for each of those FTAs directs the 
Commission, upon receipt of a petition, to conduct an investigation and 
determine whether, as a result of the reduction or elimination of a 
duty under the agreement, 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 such 
article constitute a substantial cause of serious injury or the threat 
thereof to the domestic industry producing an article that is like or 
directly competitive with the imported article. If the Commission makes 
an affirmative determination, it must recommend a remedy to the 
President; the President makes the final decision on remedy.
    More specifically, in addition to the NAFTA Implementation Act, the 
Commission is required to conduct bilateral safeguard investigations 
and make determinations under section 311(b) of the United States-
Australia Free Trade Agreement Implementation Act, section 311(b) of 
the United States-Bahrain Free Trade Agreement Implementation Act, 
section 311(b) of the United States-Chile Free Trade Agreement 
Implementation Act, section 311(b) of the United States-Colombia Trade 
Promotion Agreement Implementation Act, section 311(b) of the Dominican 
Republic-Central America-United States Free Trade Agreement 
Implementation Act, section 211(b) of the United States-Jordan Free 
Trade Area Implementation Act, section 311(b) of the United States-
Korea Free Trade Agreement Implementation Act, section 311(b) of the 
United States-Morocco Free Trade Agreement Implementation Act, section 
311(b) of the United States-Oman Free Trade Agreement Implementation 
Act, section 311(b) of the United States-Panama Trade Promotion 
Agreement Implementation Act, section 311(b) of the United States-Peru 
Trade Promotion Agreement Implementation Act, and section 311(b) of the 
United States-Singapore Free Trade Agreement Implementation Act. For 
U.S. Code citations to the respective implementation acts, see the text 
of interim rule section 206.31 published in the Federal Register on 
January 26, 2012 (77 FR 3922).
    These amendments expand upon previous rules in Subpart D of Part 
206 that provide for investigations and determinations under the NAFTA 
Implementation Act. Each of the statutory provisions listed above 
contains requirements that are similar both substantively and 
procedurally to the provision in the NAFTA Implementation Act. These 
amended rules identify the types of entities that may file a petition, 
describe the information that must be included in a petition, indicate 
the time for Commission determinations and reporting, and establish 
procedures for the limited disclosure of confidential business 
information under administrative protective order in those instances in 
which the Commission is authorized to make such disclosure.
    In its notice of the interim rule published in the Federal Register 
on January 26, 2012, the Commission invited interested parties to 
submit written comments and asked that they be received within 60 days 
of publication in the notice in the Federal Register. The Commission 
received one written comment from the Embassy of the Republic of Korea 
(Korea), Washington, DC, on February 13, 2012. In its written comment, 
Korea stated

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that, in the case of the bilateral safeguard provision in the FTA with 
Korea, the interim rule either did not properly incorporate or did not 
fully elaborate on (1) The obligation to notify the other Party in 
writing and consult on the initiation of an investigation within 30 
days after it applies a safeguard measure; (2) the obligation to give 
interested parties a period of at least 20 days to submit comments 
after the publication of the notice; and (3) the obligation not to 
apply a provisional measure until at least 45 days after the initiation 
of investigation. In a footnote, Korea stated that the obligation to 
notify in writing and consult on the initiation of an investigation is 
usually fulfilled by the Executive Branch of the U.S. Government.
    The Commission carefully reviewed the written comment of Korea and 
in so doing considered whether it should make any changes to the rule 
to address the concerns raised by Korea. Based on that review, the 
Commission concluded that no change is necessary and that the interim 
rule should be adopted as a final rule without change (other than to 
correct typographical errors). The Commission considered each of the 
concerns raised by Korea. With respect to the obligation to notify and 
consult, the Commission notes, and Korea appears to agree, that 
obligations to notify and consult under the FTAs are generally 
fulfilled by executive branch agencies other than the Commission, which 
is an independent agency. In the Commission's view it would be 
inappropriate for the Commission to issue a rule that states how or 
when another executive branch agency should notify and/or consult with 
Korea in a bilateral safeguard matter.
    With respect to the obligation to provide interested parties with a 
period of at least 20 days to submit comments after publication of the 
notice, the Commission is of the view that this obligation can be 
readily satisfied within the statutory time period for making an injury 
determination and is more properly addressed in the notice announcing 
institution of the investigation. The U.S. implementing statute 
provides that the Commission must make its injury determination within 
120 days (180 days if critical circumstances are alleged) after the 
date on which the investigation is initiated.
    With respect to the obligation not to apply a provisional measure 
until at least 45 days after initiation of an investigation, the 
Commission notes that decisions regarding whether and when to apply a 
provisional measure are made by the President, not the Commission. 
Accordingly, in the Commission's view it would be inappropriate for the 
Commission to promulgate a rule that addresses the period in time at 
which the President might apply a measure. Moreover, the Commission 
notes that when critical circumstances are alleged in a petition, U.S. 
legislation gives the Commission more than 45 days (up to 60 days from 
the day on which a request for provisional relief is filed) to make and 
transmit a determination and provisional relief recommendation to the 
President. When the request involves a perishable agricultural product, 
U.S. legislation allows the Commission to conduct an expedited 
investigation and recommend provisional relief with respect to a 
perishable agricultural product only if the Commission has, for at 
least 90 days prior to receipt of the petition containing the request, 
monitored and investigated imports of the product concerned under 
section 332(g) of the Tariff Act of 1930 (19 U.S.C. 1332(g)). The 
Commission conducts such monitoring investigations at the request of 
the U.S. Trade Representative.
    The three typographical errors are in sections 206.1 and 206.32 of 
the rule. The first two errors are in section 206.1, which is amended 
to add the word ``sections'' before the list of statutory sections 
cited, and to substitute the symbol ``Sec.  '' for the word ``section'' 
so as to refer to ``Sec.  206.31'' of the rule to conform with standard 
rule writing format. The third error corrected is in section 206.32(a), 
which concerns the definition of ``substantial cause,'' to add the word 
``in'' before the word ``section.''

Regulatory Analysis

    The Commission has determined that this action adopting a final 
rule does not meet the criteria described in section 3(f) of Executive 
Order 12866 (58 FR 51735, October 4, 1993) and thus does 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 final rulemaking is required under 5 U.S.C. 553(b) or any 
other statute.
    This final rule does not contain federalism implications warranting 
the preparation of a federalism summary impact statement pursuant to 
Executive Order 13132 (64 FR 43255, August 4, 1999).
    No actions are necessary under the Unfunded Mandates Reform Act of 
1995 (2 U.S.C. 1501 et seq.) because this final rule 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, and will not significantly or uniquely affect small governments.
    The final rule is not a major rule as defined by section 804 of the 
Congressional Review Act (5 U.S.C. 801 et seq.). Moreover, it is exempt 
from the reporting requirements of that Act because it contains rules 
of agency organization, procedure, or practice that do not 
substantially affect the rights or obligations of non-agency parties.
    The amendments are not subject to section 3504(h) of the Paperwork 
Reduction Act (44 U.S.C. 3501 et seq.), since they do not contain any 
new information collection requirements.

List of Subjects in 19 CFR Part 206

    Administrative practice and procedure, Australia, Bahrain, Business 
and industry, Canada, Chile, Colombia, Costa Rica, Dominican Republic, 
El Salvador, Guatemala, Honduras, Imports, Investigations, Jordan, 
Korea, Mexico, Morocco, Nicaragua, Oman, Panama, Peru, Singapore, Trade 
agreements.

    Accordingly, the interim rule amending 19 CFR part 206 which was 
published at 77 FR 3922 on January 26, 2012, is adopted as a final rule 
with the following changes:

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

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

    Authority: 19 U.S.C. 1335, 2112 note, 2251-2254, 2436, 2451-
2451a, 3351-3382, 3805 note, 4051-4065, and 4101.


0
2. Revise Sec.  206.1 to read as follows:


Sec.  206.1  Applicability of part.

    Part 206 applies to proceedings of the Commission under sections 
201-202, 204, 406, and 421-422 of the Trade Act of 1974, as amended 
(2251-2252, 2254, 2436, 2451-2451a), sections 301-317 of the North 
American Free Trade Agreement Implementation Act (19 U.S.C. 3351-3382) 
(hereinafter NAFTA Implementation Act), and the statutory provisions 
listed in Sec.  206.31 of this part 206 that implement bilateral 
safeguard provisions in other free trade agreements into which the 
United States has entered.

0
3. Amend Sec.  206.32 by revising paragraph (a) to read as follows:

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Sec.  206.32  Definitions applicable to subpart D.

* * * * *
    (a) The term substantial cause has the same meaning as in section 
202(b)(1)(B) of the Trade Act.
* * * * *

    Issued: June 18, 2012.

    By order of the Commission.
William R. Bishop,
Acting Secretary to the Commission.
[FR Doc. 2012-15346 Filed 6-22-12; 8:45 am]
BILLING CODE 7020-02-P