Implementing Rules for the United States-Mexico-Canada Agreement, 41355-41363 [2020-13762]

Agencies

• INTERNATIONAL TRADE COMMISSION

[Federal Register Volume 85, Number 133 (Friday, July 10, 2020)]
[Rules and Regulations]
[Pages 41355-41363]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13762]


=======================================================================
-----------------------------------------------------------------------

INTERNATIONAL TRADE COMMISSION

19 CFR Part 208


Implementing Rules for the United States-Mexico-Canada Agreement

AGENCY: United States International Trade Commission.

ACTION: Interim rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: The United States International Trade Commission (Commission) 
is adopting interim rules that will amend the Commission's rules of 
practice and procedure to implement the provisions of the United 
States-Mexico-Canada Agreement (USMCA) Implementation Act (the Act) 
regarding investigations of United States-Mexico cross-border long-haul 
trucking services (cross-border long-haul trucking services).

DATES: Effective July 10, 2020 and applicable July 1, 2020.
    Deadline for Filing Written Comments: August 10, 2020.

ADDRESSES: You may submit comments, identified by docket number MISC-
045, Rulemaking regarding USMCA Implementation, by any of the following 
methods:
    --Federal eRulemaking Portal: https://www.regulations.gov. Follow 
the instructions for submitting comments.
    --Agency Website: https://edis.usitc.gov. Follow the instructions 
for submitting comments on the website.
    Instructions: All submissions received must include the agency name 
and docket number (MISC-045, Rulemaking regarding USMCA 
Implementation), along with a cover letter stating the nature of the 
commenter's interest in the proposed rulemaking. All comments received 
will be posted without change to https://edis.usitc.gov and including 
any personal information provided. For access to the docket and to read 
background documents or comments received, go to https://edis.usitc.gov.

FOR FURTHER INFORMATION CONTACT: Concerning general inquiries, Lisa R. 
Barton, Secretary, United States International Trade Commission, 
telephone (202) 205-2000. Concerning part 208, 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 these amendments to the rules of practice and 
procedure to implement sections 321-324 of the Act. This preamble 
provides background information, and a regulatory analysis, section-by-
section explanation, and description of the new rules. The Commission 
encourages members of the public to comment on whether the language of 
the amendments is sufficiently clear for users to understand, and to 
submit any other comments they wish to make on the amendments.
    These Rules 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),

[[Page 41356]]

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 amending its rules of practice and procedure to 
implement the provisions of the Act regarding its investigations of 
cross-border long-haul trucking services.

A. Part 208

    Annex II of the USMCA sets out a process by which the United States 
may impose limitations on grants of authority to persons of Mexico to 
undertake cross-border long-haul trucking services where such 
limitations are necessary to address material harm or threat of 
material harm caused to U.S. suppliers, operators, or drivers of cross-
border long-haul trucking services.
    Subtitle C of Title III of the Act implements procedures to 
undertake investigations of cross-border long-haul trucking services. 
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. These rules of procedure are implemented in the amendments to 
part 208 of the Commission's regulations.

Procedure for Adopting the Proposed Amendments

    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 rules in 19 
CFR part 208 on an interim basis effective upon July 1, 2020, when the 
USMCA goes into effect. The Commission's authority to adopt interim 
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.
    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. 
Section 553(d)(3) of the APA allows an agency to dispense with the 
publication of notice of final rules at least thirty days prior to 
their effective date if the agency finds that good cause exists for not 
meeting the advance publication requirements and the agency publishes 
that finding along with the rules.
    In this instance, the Commission has determined that the requisite 
circumstances exist for dispensing with the notice, comment, and 
advance publication procedure that ordinarily precedes the adoption 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 interim amendments to 
part 208 are ``agency rules of procedure and practice.'' Moreover, the 
Commission finds under section 553(b)(3)(B) that good cause exists to 
waive prior notice and opportunity for comment. Rules of procedure are 
necessary to allow for the filing of petitions regarding cross-border 
long-haul trucking services consistent with the Act. The requirements 
of the Act thus make establishing necessary procedures a matter of 
urgency. It would be impracticable for the Commission to comply with 
the usual notice of proposed rulemaking and public comment procedure, 
and therefore the Commission has determined that interim rules are 
needed under these circumstances.
    For the purpose of invoking the section 553(d)(3) exemption from 
publishing advance notice of the interim amendments to part 208 at 
least thirty days prior to their effective date, the Commission finds 
the fact that the Act was signed by the President on January 29, 2020, 
but requires the Commission to have a complete process in place no 
later than July 1, 2020, makes such advance publication impracticable 
and constitutes good cause for not complying with that requirement.
    The Commission recognizes that interim rule amendments should not 
respond to anything more than exigencies created by the new 
legislation. Each interim amendment to part 208 concerns a new rule 
covering a matter addressed in the new legislation.
    After taking into account all comments received and the experience 
acquired under the interim rules, the Commission will replace them with 
final rules promulgated in accordance with the notice, comment, and 
advance publication procedure prescribed in section 553 of the APA.

Regulatory Analysis of Proposed Amendments to the Commission's Rules

    The Commission has determined that the proposed amendments to the 
rules 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 interim rules 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 
proposed interim rules 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).
    These interim rules are not ``major rules'' as defined by section 
251 of the Small Business Regulatory Enforcement

[[Page 41357]]

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.

Section-by-Section Explanation of the Proposed Amendments

    Part 208--Procedures For Investigations Of United States-Mexico 
Cross-Border Long-Haul Trucking Services.
    Section 208.1 describes the applicability of these regulations and 
the authority under the Act.
    Section 208.2 provides definitions applicable to investigations 
under this part, as provided in the Act.
    Section 208.3 outlines the applicability of provisions under 
subpart B of part 208, which concern investigations of material harm or 
threat of material harm.
    Section 208.4 describes who may file a petition, request, or 
resolution for an investigation under this part.
    Section 208.5 describes the information and contents required in a 
petition filed under this part, including a description of the identity 
of the claimant, the nature of the claim, the relief sought, and 
supporting information.
    Section 208.6 describes the time for determinations and issuance of 
reports, consistent with the Act.
    Section 208.7 describes information that will be included in a 
report to the president for an investigation under this part.
    Section 208.8 describes information to be included in a public 
report for an investigation under this part.
    Section 208.9 describes the applicability of provisions under 
subpart C of part 208, which concern investigations relating to an 
extension of relief.
    Section 208.10 describes who may file a petition or request under 
this part.
    Section 208.11 describes the time for filing a petition or request 
under this part.
    Section 208.12 describes the information and contents required in a 
petition filed under this part.
    Section 208.13 describes the information that will be provided in a 
report to the President in an investigation under this part.
    Section 208.14 describes the applicability of provisions under 
subpart D of part 208, which addresses general notice and filing 
provisions.
    Section 208.15 provides filing requirements for any petition, 
request, or resolution under this part.
    Section 208.16 describes the Commission's institution and notice 
procedures for an investigation under this part.
    Section 208.17 describes the contents of an institution notice and 
the procedures for public inspection of such notice.
    Section 208.18 describes the notification of other federal agencies 
of an investigation instituted under this part, as required by the Act.
    Section 208.19 describes the public hearing to be conducted by the 
Commission pursuant to an investigation under this part.
    Section 208.20 describes the requirements for certifications, 
service, and filing of information pursuant to an investigation under 
this part.
    Section 208.21 addresses procedures concerning the Commission's 
treatment of confidential business information and the provision of 
nonconfidential summaries pursuant to an investigation under this part.
    Section 208.22 prescribes the procedures and requirements for 
limited disclosure of certain confidential business information under 
an administrative protective order; it also prescribes the procedures 
for an investigation of any breach of an administrative protective 
order under this part.

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 amends 19 CFR chapter II by adding part 
208 to subchapter II to read as follows:

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

Sec.
208.1 Applicability of part.
Subpart A--Definitions
208.2 Definitions applicable to this part.
Subpart B--Investigations relating to Material Harm or Threat of 
Material Harm
208.3 Applicability of subpart.
208.4 Who may file a petition, request, or resolution.
208.5 Contents of petition.
208.6 Time for determinations, reporting.
208.7 Report to the President.
208.8 Public report.
Subpart C--Investigations Relating to Extension of Relief
208.9 Applicability of subpart.
208.10 Who may file a petition or request.
208.11 Time for filing.
208.12 Contents of petition.
208.13 Report to the President.
Subpart D--General notice and filing provisions.
208.14 Applicability of subpart.
208.15 Identification and filing of petitions; filing of requests 
and resolutions.
208.16 Initiation and notice of investigation.
208.17 Publication of notice; and availability for public 
inspection.
208.18 Notification of other agencies.
208.19 Public hearing.
208.20 Service, filing, and certification of documents.
208.21 Confidential business information; furnishing of 
nonconfidential summaries thereof.
208.22 Limited disclosure of certain confidential business 
information under administrative protective order.

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


Sec.  208.1  Applicability of part.

    Part 208 applies to proceedings of the Commission under sections 
321-324 of the United States-Mexico-Canada Agreement (USMCA) 
Implementation Act, 19 U.S.C. 4571-4574 (19 U.S.C. 4501 note).

Subpart A-- Definitions


Sec.  208.2  Definitions applicable to this part.

    For the purposes of this part, the following terms have the 
meanings hereby assigned to them:
    (a) Act means the USMCA Implementation Act.
    (b) Border commercial zone means:
    (1) The area of United States territory of the municipalities along 
the United States-Mexico international border and the commercial zones 
of such municipalities as described in subpart B of 49 CFR part 372.; 
and
    (2) Any additional border crossing and associated commercial zones 
listed in the Federal Motor Carrier Safety Administration OP-2 
application instructions or successor documents.
    (c) Cargo originating in Mexico means any cargo that enters the 
United States by commercial motor vehicle from Mexico, including cargo 
that may have originated in a country other than Mexico.
    (d) Change in circumstance may include a substantial increase in 
services supplied by the grantee of a grant of authority.
    (e) Commercial motor vehicle means a commercial motor vehicle, as 
such term is defined in 49 U.S.C. 31132 (1), that meets the 
requirements of 49 U.S.C. 31132(1)(A).
    (f) Cross-border long-haul trucking services means:
    (1) The transportation by commercial motor vehicle of cargo 
originating in

[[Page 41358]]

Mexico to a point in the United States outside of a border commercial 
zone; or
    (2) The transportation by commercial motor vehicle of cargo 
originating in the United States from a point in the United States 
outside of a border commercial zone to a point in a border commercial 
zone or a point in Mexico.
    (g) Driver means a person that drives a commercial motor vehicle in 
cross-border long-haul trucking services.
    (h) Grant of authority means registration granted pursuant to 49 
U.S.C. 13902, or a successor provision, to persons of Mexico to conduct 
cross-border long-haul trucking services in the United States.
    (i) Interested party means:
    (1) Persons of the United States engaged in the provision of cross-
border long-haul trucking services;
    (2) A trade or business association, a majority of whose members 
are part of the relevant United States long-haul trucking services 
industry;
    (3) A certified or recognized union, or representative group of 
suppliers, operators, or drivers who are part of the United States 
long-haul trucking services industry;
    (4) The Government of Mexico; or
    (5) Persons of Mexico.
    (j) Material harm means 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.
    (k) Operator or supplier means an entity that has been granted 
registration under 49 U.S.C. 13902, to provide cross-border long-haul 
trucking services.
    (l) Persons of Mexico includes:
    (1) Entities domiciled in Mexico organized, or otherwise 
constituted under Mexican law, including subsidiaries of United States 
companies domiciled in Mexico, or entities owned or controlled by a 
Mexican national, which conduct cross-border long-haul trucking 
services, or employ drivers who are non-United States nationals; and
    (2) Drivers who are Mexican nationals.
    (m) Persons of the United States includes entities domiciled in the 
United States, organized or otherwise constituted under United States 
law, and not owned or controlled by persons of Mexico, which provide 
cross-border long-haul trucking services and long-haul commercial motor 
vehicle drivers who are United States nationals.
    (n) Threat of material harm means material harm that is likely to 
occur.
    (o) Trade Representative means the United States Trade 
Representative.
    (p) United States long-haul trucking services industry means:
    (1) United States suppliers, operators, or drivers as a whole 
providing cross-border long-haul trucking services; or
    (2) United States suppliers, operators, or drivers providing cross-
border long-haul trucking services in a specific sub-market of the 
whole United States market.
    (q) USMCA means United States-Mexico-Canada Agreement.

Subpart B--Investigations Relating to Material Harm or Threat of 
Material Harm


Sec.  208.3  Applicability of subpart.

    The provisions of this subpart B apply to investigations under 
section 322(a) of the Act relating to material harm or threat of 
material harm. For other applicable rules, see subpart A and subpart D 
of this part.


Sec.  208.4  Who may file a petition, request, or resolution.

    An investigation under this subpart may be commenced on the basis 
of a petition properly filed by an interested party described in Sec.  
208.2(i) of this part which is representative of a United States long-
haul trucking services industry; at the request of the President or the 
Trade Representative; or upon the resolution of the Committee on Ways 
and Means of the House of Representatives or the Committee on Finance 
of the Senate.


Sec.  208.5  Contents of petition.

    (a) Nature of the claim. Each petition filed under this subpart 
shall state whether the petition:
    (1) Claims that a request by a person of Mexico to receive a grant 
of authority that is pending as of the date of the filing of the 
petition threatens to cause material harm to a United States long-haul 
trucking services industry; or
    (2) Claims that a person of Mexico who has received a grant of 
authority on or after the date of entry into force of the USMCA and 
retains such grant of authority is causing or threatens to cause 
material harm to a United States long-haul trucking services industry; 
or
    (3) Claims that, with respect to a person of Mexico who received a 
grant of authority before the date of entry into force of the USMCA and 
retains such grant of authority, there has been a change in 
circumstances such that such person of Mexico is causing or threatens 
to cause material harm to a United States long-haul trucking services 
industry.
    (b) Identity of the petitioner and basis for the claim that it is 
representative of a United States long-haul trucking services industry. 
(1) Each petition shall state the basis for the petitioner's status as 
an interested party pursuant to the definition described in Sec.  
208.2(i).
    (2) If the petition is filed on behalf of providers of such 
services in a specific sub-market, the petition shall include a 
description of the claimed sub-market. Specifically:
    (i) If the petition claims the sub-market is a specific geographic 
area in the United States for such services, it shall define such 
market and provide a justification for such delineation;
    (ii) If the petition claims a sub-market on criteria other than 
geographic terms, it shall define the applicable criteria and provide 
justification for such delineation.
    (3) Each petition shall include the names, physical addresses, 
email addresses, and telephone numbers of the firms represented in the 
petition and/or the entities employing or previously employing the 
suppliers, operators, and/or drivers represented in the petition and 
the locations of their establishments;
    (4) Each petition shall also indicate, or estimate (and provide the 
basis therefor), the percentage of the United States long-haul trucking 
services industry as a whole, or of the claimed sub-market of the 
United States market, accounted for by the petitioning suppliers, 
operators, and/or drivers and the basis for claiming that such 
suppliers, operators, and/or drivers are representative of an industry; 
and
    (5) Each petition shall include the names, physical addresses, 
email addresses, and telephone numbers of all other domestic entities, 
including firms, trade or business associations, and/or certified or 
recognized unions, or representative group of suppliers, operators, or 
drivers known to the petitioner who are part of the United States long-
haul trucking services industry or the specific sub-market in the 
United States market to which the petition pertains.
    (c) Identification of Grant or Grants of authority. Each petition 
shall identify the grant or grants of authority, or those that are 
pending, upon which the petition is based. In addition, each petition 
shall indicate whether it is based on:
    (1) A request for a grant of authority by a person of Mexico that 
is pending as of the date of filing of the petition (pursuant to 
section 332(a)(1) of the Act); or
    (2) A grant of authority that was granted to, and retained by, a 
person of Mexico after the date of entry into force of the USMCA 
(pursuant to section 332(a)(2) of the Act); or
    (3) A grant of authority that was received before the date of entry 
into

[[Page 41359]]

force of the USMCA and that the holder retains (pursuant to section 
332(a)(3) of the Act); and
    (d) Identification of a Change in Circumstances. Each petition that 
identifies a grant of authority pursuant to Sec.  208.5(c)(iii) shall 
also identify the claimed change in circumstances, and provide 
supporting information with respect to this claimed change in 
circumstances, including:
    (1) Where relevant, information relating to any increase in 
services supplied by a grantee of such grant of authority; or 
information relating to any other claimed change in circumstances; and
    (2) An explanation of how the change in circumstances is believed 
to cause or threaten to cause material harm to the long-haul trucking 
services industry as a whole or in a claimed specific sub-market 
thereof, supported by pertinent data and available information.
    (e) Additional required information and data. Each petition shall 
include the following information, to the extent that such information 
is available from governmental or other sources, or best estimates and 
the basis therefor if such information is not available:
    (1) Quantitative data and other information for the United States 
long-haul trucking industry as a whole, or for the claimed specific 
sub-market, for the most recent three (3) full calendar years, and 
part-year for the current calendar year if available, showing:
    (i) Volume and tonnage of merchandise transported by the industry 
as a whole or within the claimed specific sub-market;
    (ii) Employment, wages, hours of service, and working conditions 
relating to the industry as a whole or claimed specific sub-market;
    (iii) With respect to cargo originating in Mexico, the principal 
ports of entry along the United States-Mexico border of such shipments, 
and the principal destination(s) within the United States for such 
shipments;
    (iv) With respect to cargo originating in the United States, the 
principal place(s) where such cargo is loaded, and principal 
destination(s) in Mexico or the border commercial zone, as defined in 
Sec.  208.2(b);
    (v) With respect to claims of material harm or the threat of 
material harm to the industry as a whole or within the claimed specific 
sub-market, data regarding whether there has been or is a threat of a 
significant loss in the share of the United States market as a whole, 
or in the claimed specific sub-market, to persons of Mexico, as defined 
in Sec.  208.2(l); and
    (vi) Any other relevant information, including pricing information 
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.
    (f) Cause of injury. Each petition shall include an enumeration and 
description of the causes believed to be resulting in the material 
harm, or threat thereof, and a statement regarding the extent to which 
one or more grants of authority are believed to be such a cause of 
material harm or the threat thereof to the United States industry as a 
whole or in a sub-market thereof, supported by pertinent data and 
information;
    (g) Relief sought and purpose thereof. A statement describing the 
relief sought.


Sec.  208.6  Time for determinations, reporting.

    (a) Determinations. (1) The Commission will make its determination 
with respect to the petition, request, or resolution no later than 120 
days after the date on which an investigation is initiated under 
section 322(a) of the Act, except that:
    (2) If the Commission determines, before the 100th day after an 
investigation is initiated under section 322(a) of the Act, that the 
investigation is extraordinarily complicated, the Commission will make 
its determination within 150 days after the date on which an 
investigation is initiated.
    (b) Reporting. The Commission will submit its report to the 
President not later than the date that is 60 days after the date on 
which the determination is made under section 322(a) of the Act.


Sec.  208.7  Report to the President.

    In its report to the President, the Commission will include the 
following:
    (a) The determination made and an explanation of the basis for the 
determination;
    (b) If the determination is affirmative or if the Commission is 
equally divided in its determination, the recommendation of members of 
the Commission who agreed to the affirmative determination for the 
action that is necessary to address the material harm or threat of 
material harm found, and an explanation of the basis for the 
recommendation.
    (c) Any dissenting or separate views by members of the Commission 
regarding the determination.


Sec.  208.8  Public report.

    Upon submitting a report to the President of the results of an 
investigation to which this part relates, the Commission will promptly 
make such report public (with the exception of information that the 
Commission determines to be confidential business information) and 
publish a summary of the report in the Federal Register.

Subpart C--Investigations Relating to Extension of Relief


Sec.  208.9  Applicability of subpart.

    The provisions of this subpart C apply to investigations under 
section 324(d)(2) of the Act relating to an extension for relief. For 
other applicable rules, see subpart A and subpart D of this part.


Sec.  208.10  Who may file a petition or request.

    An investigation under this subpart may be commenced upon the 
request of the President or upon receipt of a petition, properly filed, 
by an interested party described in Sec.  208.2(i) of this part, which 
is representative of a United States long-haul trucking services 
industry, as defined by the Commission in its determination under 
section 322 of the Act.


Sec.  208.11  Time for filing.

    A request or petition may be filed with the Commission not earlier 
than the date that is 270 days, and not later than 240 days, before the 
date on which any action taken under section 324 of the Act of is to 
terminate.


Sec.  208.12  Contents of petition.

    The petition shall include information in support of the claim that 
action under section 324 of the Act continues to be necessary to remedy 
or prevent material harm to the industry, as defined by the Commission 
in its determination under section 322 of the Act, including 
information relating to changes since the action was taken with respect 
to:
    (a) The volume and tonnage of merchandise transported by the 
industry;
    (b) Employment, wages, hours of service, and working conditions 
relating to the industry;
    (c) With respect to cargo originating in Mexico, the principal 
ports of entry along the United States-Mexico border of such shipments, 
and the principal destinations within the United States for such 
shipments;
    (d) With respect to cargo originating in United States, the 
principal place(s) where such cargo is loaded, and principal 
destination(s) in Mexico or inside a border commercial zone as defined 
in Sec.  208.2(b);
    (e) The share of the United States market as a whole, or the share 
of the specific sub-market, held by persons of Mexico; and

[[Page 41360]]

    (f) Any other relevant information in support of the claim that 
action continues to be necessary.


Sec.  208.13  Report to the President.

    The Commission will submit a report on its investigation and 
determination to the President no later than 60 days before relief 
provided under section 324(a) of the Act is to terminate, or such other 
date as determined by the President.

Subpart D--General Notice and Filing Provisions


Sec.  208.14  Applicability of subpart.

    The provisions of this subpart D apply to investigations under 
sections 322(a) and 324(d)(2) of the Act.


Sec.  208.15  Identification and filing of petitions; filing of 
requests and resolutions.

    (a) Each petition filed by an entity representative of a United 
States long-haul trucking services industry must state clearly on the 
first page thereof whether the petition is filed under section 322 or 
section 324(d)(2) of the Act as applicable. Unless otherwise directed 
or authorized by the Secretary, a public and confidential version of a 
petition must be filed electronically on the Commission's Electronic 
Document Information System (``EDIS''). One copy of each of the public 
and confidential versions of any exhibits, appendices, and attachments 
to the document may be filed on EDIS or in other electronic format 
approved by the Secretary.
    (b) Each request or resolution may be submitted in paper form or 
filed on EDIS.


Sec.  208.16  Initiation and notice of investigation.

    (a) In general. Except as provided in paragraph (b) of this 
section, after acceptance of a properly filed petition under this part 
208, the Commission will promptly initiate an appropriate investigation 
and will publish notice thereof in the Federal Register.
    (b) Exception. Except for good cause determined by the Commission 
to exist, no new investigation will be made under section 322 of the 
Act with respect to the same subject matter as a previous investigation 
under section 322 of the Act unless one (1) year has elapsed since the 
Commission made its report to the President of the results of such 
previous investigation.


Sec.  208.17  Publication of notice; and availability for public 
inspection.

    (a) Contents of notice. The notice will indicate whether the 
initiation is based on a petition, request, or resolution, as 
appropriate; and will identify the grant or grants of authority, or the 
request for a grant or grants of authority, that are the subject of the 
investigation; the nature and timing of the determination to be made; 
the time and place of any public hearing, dates of deadlines for filing 
briefs, statements, and other documents; any limits on page lengths for 
briefs, statements, or other documents to be filed; and the name, 
address, and telephone number of the Commission office that may be 
contacted for more information.
    (b) Availability for public inspection. The Commission will 
promptly make the public version of each petition available for public 
inspection through EDIS.


Sec.  208.18  Notification of other agencies.

    For each investigation subject to the provisions of this part 208, 
the Commission will transmit copies of the petition, request, or 
resolution to the Trade Representative and the Secretary of 
Transportation, along with a copy of the notice of investigation.


Sec.  208.19  Public hearing.

    (a) Public hearing. The Commission will provide notice of, and 
hold, a public hearing in connection with each investigation initiated 
under section 322(a) or section 324(d)(2) of the Act and under this 
part after reasonable notice thereof has been published in the Federal 
Register.
    (b) Opportunity to appear. The Commission will afford all 
interested parties, as defined in section 321(8) of the Act and Sec.  
208.2(i) of this part, an opportunity to be present, to present 
evidence, to respond to presentations of other parties, and otherwise 
to be heard.


Sec.  208.20  Service, filing, and certification of documents.

    (a) Certification. Any person submitting factual information on 
behalf of any interested party for the consideration of the Commission 
in the course of an investigation to which this part pertains, and any 
person submitting a response to a Commission questionnaire issued in 
connection with an investigation to which this part pertains, must 
certify that such information is accurate and complete to the best of 
the submitter's knowledge.
    (b) Service. Any party submitting a document for the consideration 
of the Commission in the course of an investigation to which this part 
pertains shall, in addition to complying with Sec.  201.8 of this 
chapter, serve a copy of the public version of such document on all 
other parties to the investigation in the manner prescribed in Sec.  
201.16 of this chapter, and, when appropriate, serve a copy of the 
confidential version of such document in the manner provided for in 
Sec.  208.22(f). The Secretary shall promptly notify a petitioner when, 
before the establishment of a service list under Sec.  208.22(a)(4), an 
application under Sec.  208.22(a) is approved. A copy of the petition 
including all confidential business information shall then be served by 
petitioner on those approved applicants in accordance with this section 
within two (2) calendar days of the time notification is made by the 
Secretary. If a document is filed before the Secretary's issuance of 
the service list provided for in Sec.  201.11 of this chapter or the 
administrative protective order list provided for in Sec.  208.22, the 
document need not be accompanied by a certificate of service, but the 
document shall be served on all appropriate parties within two (2) days 
of the issuance of the service list or the administrative protective 
order list and a certificate of service shall then be filed. 
Notwithstanding Sec.  201.16 of this chapter, petitions, briefs, and 
testimony filed by parties shall be served by hand, by overnight mail, 
or by electronic means. Failure to comply with the requirements of this 
rule may result in removal from status as a party to the investigation. 
The Commission will make available through EDIS each public document 
placed in the docket file.
    (c) Filing generally. Documents to be filed with the Commission 
must comply with applicable rules, including Part 201 of this chapter, 
as may be further explained in the Commission's Handbook on Filing 
Procedures. Failure to comply with these requirements may result in the 
rejection of the document as improperly filed.
    (d) Filing of confidential business information. If the Commission 
establishes a deadline for the filing of a document, and the submitter 
includes confidential business information in the document, the 
submitter is to file and, if the submitter is a party, serve the 
confidential version of the document on or before the deadline and may 
file and serve the nonconfidential version of the document no later 
than one business day after filing the document. The confidential 
version shall enclose all confidential business information in brackets 
and have the following warning marked on every page: ``Bracketing of 
CBI not final for one business day after date of filing.'' The 
bracketing becomes final one business day after the date of filing of 
the document, i.e., at the same time as the nonconfidential version of 
the document is due to be filed. Until the bracketing becomes final, 
recipients

[[Page 41361]]

of the document may not divulge any part of the contents of the 
document to anyone not subject to the administrative protective order 
issued in the investigation. If the submitter discovers that it has 
failed to bracket correctly, the submitter may file a corrected version 
or portion of the confidential document at the same time that it files 
the nonconfidential version. No changes to the document, other than 
bracketing and deletion of confidential business information, are 
permitted after the deadline. Failure to comply with this paragraph may 
result in the striking of all or a portion of a submitter's document.


Sec.  208.21  Confidential business information; furnishing of 
nonconfidential summaries thereof.

    (a) Nonrelease of information. Except as provided for in Sec.  
208.22, in the case of an investigation under this part, the Commission 
will not release information that the Commission considers to be 
confidential business information within the meaning of Sec.  201.6 of 
this chapter, including such information obtained under section 
322(e)(2) of the Act, unless the party submitting the confidential 
business information had notice, at the time of submission, that such 
information would be released by the Commission, or such party 
subsequently consents to the release of the information. When 
appropriate, the Commission will include confidential business 
information in reports transmitted to the President, the Trade 
Representative, and the Secretary of Transportation; such reports will 
be marked as containing confidential business information, and a 
nonconfidential version of such report will be made available to the 
public.
    (b) Nonconfidential summaries. Except as the Commission may 
otherwise provide, a party submitting confidential business information 
shall also submit to the Commission, at the time that it submits such 
information, a nonconfidential summary of the information. If a party 
indicates that the confidential business information cannot be 
summarized, it shall state in writing the reasons why a summary cannot 
be provided. If the Commission finds that a request for confidentiality 
is not warranted, and if the party concerned is either unwilling to 
make the information public or to authorize its disclosure in 
generalized or summarized form, the Commission may disregard the 
submission.


Sec.  208.22  Limited disclosure of certain confidential business 
information under administrative protective order.

    (a)(1) Disclosure. Upon receipt of a timely application filed by an 
authorized applicant, as defined in paragraph (a)(3) of this section, 
which describes in general terms the information requested, and sets 
forth the reasons for the request (e.g., all confidential business 
information properly disclosed pursuant to this section for the purpose 
of representing an interested party in investigations pending before 
the Commission), the Secretary shall make available all confidential 
business information contained in Commission memoranda and reports and 
in written submissions filed with the Commission at any time during the 
investigation (except privileged information, classified information, 
and specific information of a type that there is a clear and compelling 
need to withhold from disclosure, e.g., trade secrets) to the 
authorized applicant under an administrative protective order described 
in paragraph (b) of this section. The term ``confidential business 
information'' is defined in Sec.  201.6 of this chapter, and it 
includes information obtained under section 322(e)(2) of the Act.
    (2) Application. An application under paragraph (a)(1) of this 
section must be made by an authorized applicant on a form adopted by 
the Secretary or a photocopy thereof. A signed application shall be 
filed electronically. An application on behalf of an authorized 
applicant must be made no later than the time that entries of 
appearance are due pursuant to Sec.  201.11 of this chapter. In the 
event that two or more authorized applicants represent one interested 
party who is a party to the investigation, the authorized applicants 
must select one of their number to be lead authorized applicant. The 
lead authorized applicant's application must be filed no later than the 
time that entries of appearance are due. Provided that the application 
is accepted, the lead authorized applicant shall be served with 
confidential business information pursuant to paragraph (f) of this 
section. The other authorized applicants representing the same party 
may file their applications after the deadline for entries of 
appearance, but at least five days before the deadline for filing post-
hearing briefs in the investigation, and they shall not be served with 
confidential business information.
    (3) Authorized applicant. (i) Only an authorized applicant may file 
an application under this subsection. An authorized applicant is:
    (A) An attorney for an interested party that is a party to the 
investigation;
    (B) A consultant or expert under the direction and control of a 
person under paragraph (a)(3)(i)(A) of this section;
    (C) A consultant or expert who appears regularly before the 
Commission and who represents an interested party that is a party to 
the investigation; or
    (D) An authorized representative of an interested party that is a 
party to the investigation, if such interested party is not represented 
by counsel.
    (ii) In addition, an authorized applicant must not be involved in 
competitive decision-making for an interested party that is a party to 
the investigation. Involvement in ``competitive decision-making'' 
includes past, present, or likely future activities, associations, and 
relationships with an interested party that is a party to the 
investigation, which involves the prospective authorized applicant's 
advice or participation in any of such party's decisions made in light 
of similar or corresponding information about a competitor (e.g., 
pricing, product design, etc.).
    (4) Forms and determinations. (i) The Secretary may adopt, from 
time to time, forms for submitting requests for disclosure pursuant to 
an administrative protective order incorporating the terms of this 
rule. The Secretary shall determine whether the requirements for 
release of information under this rule have been satisfied. This 
determination shall be made concerning specific confidential business 
information as expeditiously as possible, but in no event later than 
fourteen (14) days from the filing of the information, except if the 
submitter of the information objects to its release or the information 
is unusually voluminous or complex, in which case the determination 
shall be made within thirty (30) days from the filing of the 
information. The Secretary shall establish a list of parties whose 
applications have been granted. The Secretary's determination shall be 
final.
    (ii) Should the Secretary determine pursuant to this section that 
materials sought by a person to be protected from public disclosure do 
not constitute confidential business information or were not required 
to be served under paragraph (f) of this section, then the Secretary 
shall, upon request, issue an order on behalf of the Commission 
requiring the return of all copies of such materials served in 
accordance with paragraph (f) of this section.
    (iii) The Secretary shall release confidential business information 
only to an authorized applicant whose application has been accepted and 
who

[[Page 41362]]

presents the application along with adequate personal identification; 
or a person described in paragraph (b)(1)(iv) of this section who 
presents a copy of the statement referred to in that paragraph, along 
with adequate personal identification.
    (b) Administrative protective order. The administrative protective 
order under which information is made available to the authorized 
applicant shall require the applicant to submit to the Secretary a 
personal sworn statement that, in addition to such other conditions as 
the Secretary may require, the applicant shall:
    (1) Not divulge any of the confidential business information 
obtained under the administrative protective order and not otherwise 
available to the applicant, to any person other than
    (i) Personnel of the Commission concerned with the investigation,
    (ii) The person or agency from whom the confidential business 
information was obtained,
    (iii) A person whose application for access to confidential 
business information under the administrative protective order has been 
granted by the Secretary, and
    (iv) Other persons, such as paralegals and clerical staff, who are 
employed or supervised by an authorized applicant; who have a need 
thereof in connection with the investigation; who are not involved in 
competitive decision-making on behalf of an interested party that is a 
party to the investigation; and who have signed a statement in a form 
approved by the Secretary that they agree to be bound by the 
administrative protective order (the authorized applicant shall be 
responsible for retention and accuracy of such forms and shall be 
deemed responsible for such persons' compliance with the administrative 
protective order);
    (2) Use such confidential business information solely for the 
purposes of representing an interested party in the Commission 
investigation then in progress;
    (3) Not consult with any person not described in paragraph (b)(1) 
of this section concerning such confidential business information 
without first having received the written consent of the Secretary and 
the party or the attorney of the party from whom such confidential 
business information was obtained;
    (4) Whenever materials (e.g., documents, computer disks, etc.) 
containing such confidential business information are not being used, 
store such material in a locked file cabinet, vault, safe, or other 
suitable container;
    (5) Serve all materials containing confidential business 
information as directed by the Secretary and pursuant to paragraph (f) 
of this section;
    (6) Transmit all materials containing confidential business 
information with a cover sheet identifying the materials as containing 
confidential business information;
    (7) Comply with the provisions of this section;
    (8) Make true and accurate representations in the authorized 
applicant's application and promptly notify the Secretary of any 
changes that occur after the submission of the application and that 
affect the representations made in the application (e.g., change in 
personnel assigned to the investigation);
    (9) Report promptly and confirm in writing to the Secretary any 
breach of the administrative protective order; and
    (10) Acknowledge that breach of the administrative protective order 
may subject the authorized applicant to such sanctions or other actions 
as the Commission deems appropriate.
    (c) Final disposition of material released under administrative 
protective order. At such date as the Secretary may determine 
appropriate for particular data, each authorized applicant shall 
destroy all physical and electronic copies of materials released to 
authorized applicants pursuant to this section and all other materials 
containing confidential business information, such as charts or notes 
based on any such information received under administrative protective 
order, and file with the Secretary a certificate attesting to the 
applicant's personal, good faith belief that all copies of such 
material have been returned or destroyed and no copies of such material 
have been made available to any person to whom disclosure was not 
specifically authorized.
    (d) Commission responses to a breach of administrative protective 
order. A breach of an administrative protective order may subject an 
offender to:
    (1) Disbarment from practice in any capacity before the Commission 
along with such person's partners, associates, employer, and employees, 
for up to seven years following publication of a determination that the 
order has been breached;
    (2) Referral to the United States Attorney;
    (3) In the case of an attorney, accountant, or other professional, 
referral to the ethics panel of the appropriate professional 
association;
    (4) Such other administrative sanctions as the Commission 
determines to be appropriate, including public release of or striking 
from the record any information or briefs submitted by, or on behalf 
of, the offender or the party represented by the offender, denial of 
further access to confidential business information in the current or 
any future investigations before the Commission, and issuance of a 
public or private letter of reprimand; and
    (5) Such other actions, including but not limited to, a warning 
letter, as the Commission determines to be appropriate.
    (e) Breach investigation procedure. (1) The Commission shall 
determine whether any person has violated an administrative protective 
order, and may impose sanctions or other actions in accordance with 
paragraph (d) of this section. At any time within sixty (60) days of 
the later of;
    (i) The date on which the alleged violation occurred or, as 
determined by the Commission, could have been discovered through the 
exercise of reasonable and ordinary care; or
    (ii) Upon the completion of an investigation conducted under this 
subpart, the Commission may commence an investigation of any breach of 
an administrative protective order alleged to have occurred at any time 
during the pendency of the investigation. Whenever the Commission has 
reason to believe that a person may have breached an administrative 
protective order issued pursuant to this section, the Secretary shall 
issue a letter informing such person that the Commission has reason to 
believe that a breach has occurred and that the person has a reasonable 
opportunity to present views on whether a breach has occurred. If the 
Commission subsequently determines that a breach has occurred and that 
further investigation is warranted, then the Secretary shall issue a 
letter informing such person of that determination and that the person 
has a reasonable opportunity to present views on whether mitigating 
circumstances exist and on the appropriate sanction to be imposed, but 
no longer on whether a breach has occurred. Once such person has been 
afforded a reasonable opportunity to present views, the Commission 
shall determine what sanction, if any, to impose.
    (2) Where the sanction imposed is a private letter of reprimand, 
the Secretary shall expunge the sanction from the recipient's record 
two (2) years from the date of issuance of the sanction, provided that
    (i) The recipient has not received another unexpunged sanction 
pursuant to this section at any time prior to the end of the two-year 
period, and

[[Page 41363]]

    (ii) The recipient is not the subject of an investigation for 
possible breach of administrative protective order under this section 
at the end of the two-year period. Upon the completion of such a 
pending breach investigation without the issuance of a sanction, the 
original sanction shall be expunged. The Secretary shall notify a 
sanction recipient in the event that the sanction is expunged.
    (f) Service. (1) Any party filing written submissions that include 
confidential business information to the Commission during an 
investigation shall at the same time serve complete copies of such 
submissions upon all authorized applicants specified on the list 
established by the Secretary pursuant to paragraph (a)(4) of this 
section, and, except as provided in Sec.  208.20(c), a nonconfidential 
version on all other parties. All such submissions must be accompanied 
by a certificate attesting that complete copies of the submission have 
been properly served. In the event that a submission is filed before 
the Secretary's list is established, the document need not be 
accompanied by a certificate of service, but the submission shall be 
served within two (2) days of the establishment of the list and a 
certificate of service shall then be filed.
    (2) A party may seek an exemption from the service requirement of 
paragraph (f)(1) of this section for particular confidential business 
information by filing a request for exemption from disclosure in 
accordance with paragraph (g) of this section. The Secretary shall 
promptly respond to the request. If a request is granted, the Secretary 
shall accept the information. The party shall file three versions of 
the submission containing the information in accordance with paragraph 
(g) of this section, and serve the submission in accordance with the 
requirements of Sec.  208.20(b) and paragraph (f)(1) of this section, 
with the specific information as to which exemption from disclosure 
under administrative protective order has been granted redacted from 
the copies served. If a request is denied, the copy of the information 
lodged with the Secretary shall promptly be returned to the requester.
    (3) The Secretary shall not accept for filing into the record of an 
investigation submissions filed without a proper certificate of 
service. Failure to comply with paragraph (f) of this section may 
result in denial of party status and such sanctions as the Commission 
deems appropriate. Confidential business information in submissions 
must be clearly marked as such when submitted by enclosing such 
information within brackets, and it must be segregated from other 
material being submitted.
    (g) Exemption from disclosure. (1) In general. Any person may 
request exemption from the disclosure of confidential business 
information under administrative protective order, whether the person 
desires to include such information in a petition filed under this 
part, or any other submission to the Commission during the course of an 
investigation under this part. Such a request shall be granted only if 
the Secretary finds that such information is non-disclosable 
confidential business information. As defined in Sec.  201.6(a)(2) of 
this chapter, non-disclosable confidential business information is 
privileged information, classified information, or specific information 
(e.g., trade secrets) of a type for which there is a clear and 
compelling need to withhold from disclosure.
    (2) Request for exemption. A request for exemption from disclosure 
must be filed with the Secretary in writing with the reasons therefor. 
At the same time as the request is filed, one copy of the confidential 
business information in question must be lodged with the Secretary 
solely for the purpose of obtaining a determination as to the request. 
The confidential business information for which exemption from 
disclosure is sought shall remain the property of the requester, and it 
shall not become or be incorporated into any agency record until such 
time as the request is granted. A request should, when possible, be 
filed two business days prior to the deadline, if any, for filing the 
document in which the information for which exemption from disclosure 
is sought is proposed to be included. The Secretary shall promptly 
notify the requester as to whether the request has been approved or 
denied.
    (3) Procedure if request is approved. If the request is approved, 
the person shall file three versions of the submission containing the 
non-disclosable confidential business information in question. One 
version shall contain all confidential business information, bracketed 
in accordance with Sec.  201.6 of this chapter and Sec.  208.20(c), 
with the specific information as to which exemption from disclosure was 
granted enclosed in triple brackets. This version shall have the 
following warning marked on every page: ``CBI exempted from disclosure 
under APO enclosed in triple brackets.'' The other two versions shall 
conform to and be filed in accordance with the requirements of Sec.  
201.6 of this chapter and Sec.  208.20(c), except that the specific 
information as to which exemption from disclosure was granted shall be 
redacted from those versions of the submission.
    (4) Procedure if request is denied. If the request is denied, the 
copy of the information lodged with the Secretary shall promptly be 
returned to the requester.

    Issued: June 22, 2020.

    By order of the Commission.
William Bishop,
Supervisory Hearings and Information Officer.
[FR Doc. 2020-13762 Filed 7-9-20; 8:45 am]
BILLING CODE 7020-02-P