[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]
[[Page 37804]]
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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
[[Page 37805]]
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:
[[Page 37806]]
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