[Federal Register Volume 86, Number 66 (Thursday, April 8, 2021)]
[Rules and Regulations]
[Pages 18183-18185]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-07181]


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INTERNATIONAL TRADE COMMISSION

19 CFR Part 208


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 adopting as a final rule the interim rule published on July 10, 
2020, with one amendment. The rule concerns the practices and 
procedures for investigations of United States-Mexico cross-border 
long-haul trucking services (cross-border long-haul trucking services) 
provided for in the United States-Mexico-Canada Agreement (USMCA) 
Implementation Act (the Act).

DATES: Effective May 10, 2021.

FOR FURTHER INFORMATION CONTACT: Lisa R. Barton, Secretary to the 
Commission, United States International Trade Commission, telephone 
(202) 205-2000, or William Gearhart, Office of the General Counsel, 
United States International Trade Commission, telephone (202) 205-3091. 
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 the final rule. This preamble provides 
background information and a regulatory analysis of the rule.
    The final rule and amendment are being promulgated in accordance 
with the Administrative Procedure Act (5 U.S.C. 553) (APA), and will be 
codified in 19 CFR part 208.

Background

    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), 322(f), and 324(e) of the Act (19 
U.S.C. 4513(b), 4572(f), and 4574(e), respectively) authorize the 
Commission to prescribe implementing regulations necessary or 
appropriate to carry out actions required or authorized by the Act.
    The Commission is adopting as a final rule, with one clarifying 
change, the interim rule published in the Federal Register on July 10, 
2020 (85 FR 41355), that governs rules of procedure for investigations 
of cross-border long-haul trucking services provided for in Subtitle C 
of Title III of the Act. Section 322 of the Act requires that the 
Commission undertake an investigation, upon filing of a petition or 
request, and make a determination as to whether a grant of authority 
has caused material harm or threatens material harm to U.S. suppliers 
of cross-border long-haul trucking services, and if affirmative, to 
recommend a remedy to the President. Additionally, Section 324 of the 
Act requires that the Commission, at the request of the President or an 
interested party, undertake an investigation and make a determination 
as to whether an extension of relief granted by the President is 
necessary to prevent or remedy material harm. The Act specifies certain 
procedures for such investigations, including who may file a petition 
or request such investigations, the holding of hearings and publication 
of notices regarding investigations, the timelines for such 
investigations and determinations, and the issuance of reports that 
include the determination, an explanation thereof, and any 
recommendation for relief.
    The one minor change to the interim rule is to Sec.  
208.5(e)(1)(vi), which describes additional information and data to be 
provided in a petition for an investigation of long-haul cross-border 
trucking services. Paragraph (e)(1)(vi) of this section in the interim 
rule required that such petitions include ``pricing information,'' and 
the Commission now amends this to ``freight rates'' to clarify the type 
of pricing information necessary in petitions. The Commission makes no 
other amendments to the interim rule that it now adopts as final.
    In its document announcing the interim rule at part 208 of the

[[Page 18184]]

Commission's regulations, the Commission invited members of the public 
to file written comments on the rule no later than 30 days after the 
day of publication; in this case, by August 10, 2020. The Commission 
received two sets of written comments from interested parties: One 
filed jointly by the Owner-Operator Independent Drivers Association and 
the International Brotherhood of Teamsters (OOIDA/Teamsters), and one 
filed by the Government of Mexico (Mexico). The Commission has 
carefully considered all comments that it received, and it provides 
responses to these comments in an analysis provided below. The 
Commission appreciates the time and effort of the commentators in 
preparing their submissions.

Procedure for Adopting the Amendment

    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 APA (5 U.S.C. 553). That 
procedure entails publication of proposed rulemaking in the Federal 
Register that solicits public comments on the proposed 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 its interim 
rule at 19 CFR part 208 on a final basis, effective 30 days after 
publication of this document. 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 322(f) of the Act (19 U.S.C. 4513(b) and 4572(f)), 
and section 553 of the APA (5 U.S.C. 553).
    Section 553(b) of the APA allows an agency to dispense with 
publication of a notice of proposed rulemaking when the following 
circumstances exist: (1) The rules in question are interpretive rules, 
general statements of policy, or rules of agency organization, 
procedure or practice; or (2) 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.
    In this instance, the Commission has determined that the requisite 
circumstances exist for dispensing with the notice and comment 
procedure that ordinarily precedes the amendment of Commission rules. 
For purposes of invoking the section 553(b)(3)(A) exemption from 
publishing a notice of proposed rulemaking that solicits public 
comment, the Commission finds that the amendment to part 208 is a 
technical clarification of an agency rule of procedure and practice. 
Moreover, the Commission finds under section 553(b)(3)(B) that prior 
notice and opportunity for comment are unnecessary. The amendment 
clarifies an aspect of the interim rule, the type of pricing data to be 
provided in petitions on long-haul cross-border trucking services, but 
it does not substantively alter those procedures already provided for 
in the interim rule. Given the lack of any substantive change and that 
parties have already been provided an opportunity to comment on the 
interim rule, we find that public comment on the amendment is 
unnecessary.

Regulatory Analysis of Proposed Amendments to the Commission's Rules

    The Commission has determined that this final rule and amendment 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 rule and amendment 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, Public Law 104-4 (2 U.S.C. 1531-1538) because the 
final rule and amendment 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).
    This final rule and amendment 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.

Overview of the Amendment to the Regulations

    The final regulation contains one change from the interim rule. The 
Commission has determined to amend Sec.  208.5(e)(1)(vi), which 
describes additional information to be provided in a petition for long-
haul cross-border trucking services. The interim rule required that a 
petition include ``pricing information'' on long-haul cross-border 
trucking services. After further consideration, the Commission has 
determined to change this language to ``freight rates'' so as to 
specify the precise pricing information relevant to long-haul cross-
border trucking services.

Section-by-Section Explanation of the Amendment, Comments Received, and 
Commission Response

Part 208--Investigations of United States-Mexico Cross-Border Long-Haul 
Trucking Services

Subpart B--Investigations Relating to Material Harm or Threat of 
Material Harm
Section 208.5
    Section 208.5 lists the information required in a petition for 
cross-border long-haul trucking services. The Commission amends Sec.  
208.5(e)(1)(vi) to clarify that freight rates are the type of pricing 
information to be included in petitions.
Comments
    In their comments, OOIDA/Teamsters encouraged the Commission to 
adopt its interim rule as a final rule. They noted that their 
constituent members are concerned by the potential economic and safety 
impact of Mexican-domiciled carriers operating in the United States, 
and they expressed the view that investigations by the Commission will 
provide useful information as well as possible remedies for such 
harmful effects. OOIDA/Teamsters further noted that allowing a sub-
market to be defined in a variety of ways is necessary given the large 
and diverse nature of the U.S. trucking industry and the difficulty for 
its members in obtaining all relevant information for the entirety of 
the industry. OOIDA/Teamsters also agreed with the Commission's 
decision to dispense with notice-and-comment procedures in adopting the 
interim rules given the expediency necessary to implement procedures 
for investigations of cross-border long-haul trucking services.
    In its comments, Mexico expressed its belief that certain 
provisions of the

[[Page 18185]]

interim rule are inconsistent with the United States' obligations under 
the USMCA. Specifically, Mexico argued that the definition of 
``material harm'' at Sec.  208.2(j) of the interim rule is inconsistent 
with the USMCA in two respects. First, Mexico expressed its view that 
this definition differs from that provided in USMCA, Annex II, footnote 
1 by adding a provision for a significant loss of market share for a 
``relevant sub-market.'' Second, Mexico objected to the interim rule's 
definition of injury to the relevant U.S. industry as being to ``cross-
border long-haul trucking services'' rather than merely ``long-haul 
trucking services.'' In both instances, Mexico believes that these 
differences lower the threshold for material injury in a manner 
inconsistent with the USMCA.
Commission Response
    The Commission has considered the comments of OOIDA/Teamsters that 
support the interim rules as published, and that OOIDA/Teamsters do not 
seek or request amendments to the interim rules.
    Addressing Mexico's comments, the Commission notes that Mexico's 
objections are directed at language that mirrors the USMCA's 
implementing statute. While Mexico alleges that the interim rule's 
definition for material harm is inconsistent with the USMCA, the 
interim rule implements provisions of the Act rather than the USMCA, 
and the Commission adopts its definition of material harm directly from 
the Act. Section 321(9) of the Act defines material harm as ``a 
significant loss in the share of the United States market or relevant 
sub-market for cross-border long-haul trucking services held by persons 
of the United States,'' which is identical to the definition at Sec.  
208.2(j) of the interim rule. Similarly, section 321(5) of the Act also 
defines the relevant U.S. industry as ``cross-border long-haul trucking 
services.'' Because these definitions track and are consistent with the 
Act, we adopt the definition of material harm from the interim rule as 
a final rule without change.

List of Subjects in 19 CFR Part 208

    Administrative practice and procedure, Trade agreements.

    For the reasons stated in the preamble, the United States 
International Trade Commission adopts as final rule the interim rule 
adding 19 CFR part 208 that was published at 85 FR 41355, on July 10, 
2020, with the following change:

PART 208--INVESTIGATIONS OF UNITED STATES-MEXICO CROSS-BORDER LONG-
HAUL TRUCKING SERVICES

0
1. The authority citation for part 208 continues to read as follows:

    Authority: 19 U.S.C. 4574(e).


0
2. Amend Sec.  208.5 by revising paragraph (e)(i)(vi) to read as 
follows:


Sec.  208.5  Contents of petition.

* * * * *
    (e) * * *
    (1) * * *
    (vi) Any other relevant information, including freight rates and 
any evidence of cross-border long-haul trucking services lost to 
persons of Mexico in the market as a whole or claimed specific sub-
market.
* * * * *

    By order of the Commission.

    Issued: April 2, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-07181 Filed 4-7-21; 8:45 am]
BILLING CODE 7020-02-P