PART 208—INVESTIGATIONS OF UNITED STATES-MEXICO CROSS-BORDER LONG-HAUL TRUCKING SERVICES Authority: 19 U.S.C. 4574(e). Source: 85 FR 41357, July 10, 2020, unless otherwise noted. § 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 § 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 (b) Border commercial zone (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 (d) Change in circumstance (e) Commercial motor vehicle (f) Cross-border long-haul trucking services means: (1) The transportation by commercial motor vehicle of cargo originating in 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 (h) Grant of authority (i) Interested party (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 (k) Operator supplier (l) Persons of Mexico (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 (n) Threat of material harm (o) Trade Representative (p) United States long-haul trucking services industry (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 Subpart B—Investigations Relating to Material Harm or Threat of Material Harm § 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. § 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 § 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. § 208.5 Contents of petition. (a) Nature of the claim. (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. (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. (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 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. (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. (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 § 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 § 208.2(l); and (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. (f) Cause of injury. (g) Relief sought and purpose thereof. [85 FR 41357, July 10, 2020, as amended at 86 FR 18185, Apr. 8, 2021] § 208.6 Time for determinations, reporting. (a) Determinations. (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. § 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. § 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 § 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. § 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 § 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. § 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. § 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 § 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 (f) Any other relevant information in support of the claim that action continues to be necessary. § 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 § 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. § 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. § 208.16 Initiation and notice of investigation. (a) In general. Federal Register (b) Exception. § 208.17 Publication of notice; and availability for public inspection. (a) Contents of notice. (b) Availability for public inspection. § 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. § 208.19 Public hearing. (a) Public hearing. Federal Register (b) Opportunity to appear. § 208.20 Service, filing, and certification of documents. (a) Certification. (b) Service. (c) Filing generally. (d) Filing of confidential business information. i.e., § 208.21 Confidential business information; furnishing of nonconfidential summaries thereof. (a) Nonrelease of information. (b) Nonconfidential summaries. § 208.22 Limited disclosure of certain confidential business information under administrative protective order. (a)(1) Disclosure. e.g., e.g., (2) Application. (3) Authorized applicant. (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., (4) Forms and determinations. (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 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. (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., (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., (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. (d) Commission responses to a breach of administrative protective order. (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. (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 (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. (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 § 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. In general. e.g., (2) Request for exemption. (3) Procedure if request is approved. (4) Procedure if request is denied.