PART 356—PROCEDURES AND RULES FOR ARTICLE 10.12 OF THE UNITED STATES-MEXICO-CANADA AGREEMENT Authority: 19 U.S.C. 1516a and 1677f(f), unless otherwise noted. Source: 59 FR 229, Jan. 3, 1994, unless otherwise noted. Editorial Note: Nomenclature changes to part 356 appear at 78 FR 62418, Oct. 22, 2013. Subpart A—Scope and Definitions § 356.1 Scope. This part sets forth procedures and rules for Article 10.12 of the United States-Mexico-Canada Agreement under the Tariff Act of 1930, as amended by title IV of the United States-Mexico-Canada Agreement Implementation Act of 2020 (19 U.S.C. 1516a and 1677f(f)). This part is authorized by section 412(g) of the United States-Mexico-Canada Agreement Implementation Act of 2020. [86 FR 70048, Dec. 9, 2021] § 356.2 Definitions. For purposes of this part: (a) Act (b) Administrative law judge (c) Affected party (d) Agreement (e) APO Sanctions Board (f) Article 10.12 Binational Panel Rules (g) Authorized agency of a free trade area country (1) In the case of Canada, any Canadian government agency that is authorized by Canadian law to request the Department to initiate proceedings to impose sanctions for an alleged violation of a disclosure undertaking; and (2) In the case of Mexico, any Mexican government agency that is authorized by Mexican law to request the Department to initiate proceedings to impose sanctions for an alleged violation of a disclosure undertaking; (h) Binational panel (i) Charged party (j) Chief Counsel (k) Days (l) Department (m) Deputy Under Secretary (n) Director (o) Disclosure undertaking (1) In the case of Canada, the Canadian mechanism for protecting proprietary or privileged information during proceedings pursuant to Article 10.12 of the Agreement, as prescribed by subsection 77.21(2) of the Special Import Measures Act, as amended; (2) In the case of Mexico, the Mexican mechanism for protecting proprietary or privileged information during the proceedings pursuant to Article 10.12 of the Agreement, as prescribed by the Ley de Comercio Exterior and its regulations; (p) Extraordinary challenge committee (q) Final determination (r) Free trade area country FTA country (s) Investigating authority (t) Lesser-included sanction (u) Letter of transmittal (v) Official publication (1) In the case of Canada, the Canada Gazette; (2) In the case of Mexico, the Diario Oficial de la Federacion; and (3) In the case of the United States, the Federal Register (w) Panel review (x) Party to the proceeding (y) Participant (z) Parties (aa) Person (bb) Privileged information (1) With respect to a panel review of a final determination made in Canada, information of the investigating authority that is subject to the solicitor-client privilege under the laws of Canada, or that constitutes part of the deliberative process with respect to the final determination, and with respect to which the privilege has not been waived; (2) With respect to a panel review of a final determination made in Mexico: (i) Information of the investigating authority that is subject to attorney-client privilege under the laws of Mexico; or (ii) Internal communications between officials of Secretariat of Economy in charge of antidumping and countervailing duty investigations or communications between those officials and other government officials, where those communications constitute part of the deliberative process with respect to the final determination; and (3) With respect to a panel review of a final determination made in the United States, information of the investigating authority that is subject to the attorney-client, attorney work product or government deliberative process privilege under the laws of the United States and with respect to which the privilege has not been waived; (cc) Proprietary information (1) With respect to a panel review of a final determination made in Canada, information referred to in subsection 84(3) of the Special Import Measures Act, as amended, or subsection 45(3) of the Canadian International Trade Tribunal Act, as amended, with respect to which the person who designated or submitted the information has not withdrawn the person's claim as to the confidentiality of the information; (2) With respect to a panel review of a final determination made in Mexico, informacion confidencial, as defined under article 80 of the Ley de Comercio Exterior and its regulations; and (3) With respect to a panel review of a final determination made in the United States, business proprietary information under section 777(f) of the Act (19 U.S.C. 1677f(f)) and information the disclosure of which the Department has decided is limited under the procedures adopted pursuant to Article 10.12.14 of the Agreement, including business or trade secrets; production costs; terms of sale; prices of individual sales, likely sales, or offers; names of customers, distributors, or suppliers; exact amounts of the subsidies received and used by a person; names of particular persons from whom proprietary information was obtained; and any other business information the release of which to the public would cause substantial harm to the competitive position of the submitter; (dd) Protective order (ee) Class or kind of merchandise determination (ff) Secretariat (gg) Secretary (hh) Service address (ii) Service list (jj) Under Secretary (kk) United States section of the Secretariat [59 FR 229, Jan. 3, 1994, as amended at 86 FR 70048, Dec. 9, 2021; 89 FR 6015, Jan. 31, 2024] Subpart B—Procedures for Commencing Review of Final Determinations § 356.3 Notice of intent to commence judicial review. A party to a proceeding who intends to commence judicial review of a final determination made in the United States shall file a Notice of Intent to Commence Judicial Review, which shall contain such information, and be in such form, manner, and style, including service requirements, as prescribed by the Article 10.12 Binational Panel Rules, within 20 days after: (a) The date of publication in the Federal Register (b) The date on which the notice of the final determination was received by the Government of the FTA country if the final determination was not published in the Federal Register. [59 FR 229, Jan. 3, 1994, as amended at 86 FR 70048, Dec. 9, 2021] § 356.4 Request for panel review. A party to a proceeding who seeks panel review of a final determination shall file a Request for Panel Review, which shall contain such information, and be in such form, manner, and style, including service requirements, as prescribed by the Article 10.12 Binational Panel Rules, within 30 days after: (a) The date of publication in the official publication of the final determination; or (b) The date on which the notice of the final determination was received by the United States Government or the Government of the FTA country if the final determination was not published in the official publication. [59 FR 229, Jan. 3, 1994, as amended at 86 FR 70049, Dec. 9, 2021] § 356.5 [Reserved] § 356.6 Receipt of notice of a class or kind of merchandise determination by the Government of a FTA country. Where the Department has made a class or kind of merchandise determination, notice of such determination shall be deemed received by the Government of a FTA country: (a) On the date of publication in the official publication of the determination; or (b) If the determination was not published in the official publication, on the date on which the Department conveys a copy of the determination to the electronic mail address provided by the Embassy of the FTA country during its normal business hours. [86 FR 70049, Dec. 9, 2021] § 356.7 Request to determine when the Government of a FTA country received notice of a scope determination. (a) Pursuant to section 516A(g)(1) of the Act (19 U.S.C 1516a(g)(10)), any party to the proceeding may request in writing from the Department the date on which the Government of a FTA country received notice of a class or kind of merchandise determination made by the Department. (b) A request shall be made by filing a request in accordance with the requirements set forth in 19 CFR 351.303(b) and 351.303(d)(2) with the Secretary of Commerce, Attention: Enforcement and Compliance, APO/Dockets Unit, Room 18022, U.S. Department of Commerce, 14th Street and Constitution Avenue NW, Washington, DC 20230. A letter of transmittal must be the first page of the request. (c) The requesting party shall serve a copy of the Request to Determine When the Government of [insert name of applicable FTA country] Received Notice of a Class or Kind of Merchandise Determination on any interested party on the Department's service list in accordance with the service requirements listed in 19 CFR 351.303(f). (d) The Department will respond to the request referred to in paragraph (b) of this section within five business days of receipt. [59 FR 229, Jan. 3, 1994, as amended at 86 FR 70049, Dec. 9, 2021] § 356.8 Continued suspension of liquidation. (a) In general. (b) Eligibility to request continued suspension of liquidation. (2) A participant in a binational panel review that was a party to the proceeding, as described in section 771(9)(A) of the Act (19 U.S.C. 1677(9)(A)), may request continued suspension of liquidation of the merchandise which it manufactured, produced, exported, or imported and which is covered by the administrative determination under review by the panel. Foreign governments are not listed as interested parties who may request the continuation of suspension under 19 U.S.C. 1516a(g)(5)(C)(iii). (c) Request for continued suspension of liquidation. (1) The name of the final determination subject to binational panel review and the case number assigned by the Department; (2) The caption of the binational panel proceeding; (3) The name of the requesting participant; (4) The requestor's status as a party to the proceeding and as a participant in the binational panel review; and (5) The specific entries to be suspended by name of manufacturer, producer, exporter, or U.S. importer. (d) Filing and service. (2) The requesting party shall serve a copy of the Request for Continued Suspension of Liquidation on the United States Secretary and all parties to the proceeding in accordance with the requirements of 19 CFR 351.303(f). (e) Termination of Continued Suspension. [59 FR 229, Jan. 3, 1994, as amended at 86 FR 70049, Dec. 9, 2021; 89 FR 6015, Jan. 31, 2024; 89 FR 100303, Dec. 12, 2024] Subpart C—Proprietary and Privileged Information § 356.9 Persons authorized to receive proprietary information. Persons described in paragraphs (a), (d), (e), (f) and (g) of this section shall, and persons described in paragraphs (b) and (c) of this section may, be authorized by the Department to receive access to proprietary information if they comply with this subpart and such other conditions imposed upon them by the Department: (a) The members of, and appropriate staff of, a binational panel or extraordinary challenge committee; (b) Counsel to participants in panel reviews and professionals retained by, or under the direction or control of such counsel, provided that the counsel or professional does not participate in competitive decision-making activity (such as advice on production, sales, operations, or investments, but not legal advice) for the participant represented or for any person who would gain competitive advantage through knowledge of the proprietary information sought; (c) Other persons who are retained or employed by and under the direction or control of a counsel or professional, panelist, or committee member who has been issued a protective order, such as paralegals, law clerks, and secretaries, if such other persons are: (1) Not involved in the competitive decision-making of a participant to the panel review or for any person who would gain competitive advantage through knowledge of the proprietary information sought; and (2) Have agreed to be bound by the terms set forth on the application for protective order of the counsel or professional, panelist, or committee member; (d) Each Secretary and every member of the staff of the Secretariat; (e) Such officials of the United States Government (other than an officer or employee of the investigating authority that issued the final determination subject to review) as the United States Trade Representative informs the Department require access to proprietary information for the purpose of evaluating whether the United States should seek an extraordinary challenge committee review of a panel determination; (f) Such officials of the Government of a FTA country as an authorized agency of the FTA country informs the Department require access to proprietary information for the purpose of evaluating whether the FTA country should seek an extraordinary challenge committee review of a panel determination; and (g) Every court reporter, interpreter, and translator employed in a panel or extraordinary challenge committee review, as well as individuals employed to provide audiovisual services at hearings, meetings, or other events as needed. [59 FR 229, Jan. 3, 1994, as amended at 89 FR 6016, Jan. 31, 2024; 89 FR 11729, Feb. 15, 2024] § 356.10 Procedures for obtaining access to proprietary information. (a) Persons who must file an application for disclosure under protective order. (b) Procedures for applying for a protective order Contents of applications. (ii) Such forms require the applicant to submit a personal sworn statement stating, in addition to such other terms as the Department may require, that the applicant shall: (A) Not disclose any proprietary information obtained under protective order and not otherwise available to the applicant, to any person other than: ( 1 ( 2 ( 3 ( 4 ( i ( ii (B) Not use any of the proprietary information not otherwise available to the applicant for purposes other than proceedings pursuant to Article 10.12 of the Agreement; (C) Upon completion of the panel review, or at such earlier date as may be determined by the Department, destroy and certify to the Department the destruction of all documents released under the protective order and all other documents containing the proprietary information (such as briefs, notes, or charts based on any such information received under the protective order); and (D) Acknowledge that breach thereof may subject the signatory to sanctions under § 356.12. (2) Timing of application for disclosure under protective order Persons described in § 356.9(a) (panelists, etc.). (ii) Persons described in § 356.9(b) (counsel, etc.). (iii) Persons described in § 356.9(d) (Secretaries, etc.). (iv) Persons described in § 356.9 (e), (f) or (g) (designated Government officials or court reporters, etc.). (3) Filing of applications. (4) Service of applications Persons described in §§ 356.9(b) (counsel, etc.). (ii) Method of service. (A) Delivering a copy of the document to the service address of the participant; (B) Sending a copy of the document to the service address of the participant by electronic means or by expedited delivery courier or expedited mail service; (C) Personal service on the participant; or (D) Filing the document using the United States section of the Secretariat's electronic filing platform. (iii) Proof and date of service. (5) Release to employees of panelists, committee members, and counsel or professionals. (6) Counsel or professional who retains access to proprietary information under a protective order issued during the administrative proceeding. (c) Issuance and service of protective orders Persons described in § 356.9(a) (panelists, etc.). (ii) [Removed] (2) Persons described in §§ 356.9 (b) or (c) (counsel, etc., or paralegals, etc.) Opportunity to object to disclosure. (ii) Timing of decisions on applications. (iii) Approval of applications. (iv) Denial of applications. (v) Issuance of protective orders. (3) Persons described in § 356.9(d) or (g) (Secretaries, etc., or court reporters, etc.). (4) Persons described in § 356.9 (e) or (f) (designated Government officials). (ii) [Reserved] (d) Modification or revocation of protective orders Notification. (2) Issuance of modification or revocation. [59 FR 229, Jan. 3, 1994, as amended at 86 FR 70049, Dec. 9, 2021] § 356.11 Procedures for obtaining access to privileged information. (a) Persons who may apply for access to privileged information under protective order and filing of applications Panelists. in camera in camera (ii) If a panel orders disclosure of a document containing privileged information, any panelist who has not filed an application pursuant to paragraph (a)(1)(i) of this section shall submit an application for disclosure of the privileged information under a Protective Order for Privileged Information to the United States section of the Secretariat for filing with the Department. (2) Designated officials of the United States Government. (3) Designated officials of the government of a FTA country. (4) Members of an extraordinary challenge committee. (5) Counsel or a professional under the direction or control of counsel. (i) File the application with the United States section of the Secretariat which, in turn, shall submit the application to the Department; and (ii) As soon as the deadline fixed under the Article 10.12 Binational Panel Rules for filing a Notice of Appearance in the panel review has passed, shall serve the application on each participant, other than the investigating authority, in accordance with paragraphs (b)(4)(ii) and (iii) of this section. (6) Other designated persons. e.g., (b) Contents of applications for release under protective order for privileged information. (2) Such forms require the applicant for release of privileged information under Protective Order for Privileged Information to submit a personal sworn statement stating, in addition to such other conditions as the Department may require, that the applicant shall: (i) Not disclose any privileged information obtained under protective order to any person other than: (A) An official of the Department involved in the particular panel review in which the privileged information is part of the record; (B) A person who has furnished a similar application and who has been issued a Protective Order for Privileged Information concerning the privileged information at issue; and (C) A person retained or employed by counsel, a professional, a panelist or extraordinary challenge committee member who has been issued a Protective Order for Privileged Information, such as a paralegal, law clerk, or secretary, if such person has agreed to be bound by the terms set forth in the application for Protective Order for Privileged Information of the counsel, professional, panelist or extraordinary challenge committee member by signing and dating the completed application at the location indicated in such application; (ii) Use such information solely for purposes of the proceedings under Article 10.12 of the Agreement; (iii) Upon completion of the panel review, or at such earlier date as may be determined by the Department, destroy and certify to the Department the destruction of all documents released under the Protective Order for Privileged Information and all other documents containing the privileged information (such as briefs, notes, or charts based on any such information received under the Protective Order for Privileged Information); and (iv) Acknowledge that breach thereof may subject the signatory to sanctions under §§ 356.12 and 356.30. (c) Issuance of protective orders for privileged information Panelists, designated government officials and members of an extraordinary challenge committee. (ii) [Reserved] (2) Counsel or a professional under the direction or control of counsel. (3) Other designated persons described in paragraph (a)(6) of this section. (d) Modification or revocation of protective order for privileged information Notification. (2) Issuance of modification or revocation. [59 FR 229, Jan. 3, 1994, as amended at 86 FR 70050, Dec. 9, 2021] Subpart D—Violation of a Protective Order or a Disclosure Undertaking § 356.12 Sanctions for violation of a protective order or disclosure undertaking. (a) A person, other than a person exempted from this part by the provisions of section 777f(f)(4) of the Act (19 U.S.C. 1677f(f)(4)), determined under this part to have violated a protective order or a disclosure undertaking may be subjected to any or all or the following sanctions: (1) Liable to the United States for a civil penalty not to exceed $100,000 for each violation; (2) Barred from appearing before the Department to represent another for a designated time period from the date of publication in an official publication of a notice that a violation has been determined to exist; (3) Denied access to proprietary information for a designated time period from the date of publication in an official publication of a notice that a violation has been determined to exist; (4) Other appropriate administrative sanctions, including striking from the record of the panel review any information or argument submitted by, or on behalf of, the violating party or the party represented by the violating party; terminating any proceeding then in progress; or revoking any order then in effect; and (5) Required to destroy and certify to the Department the destruction of all material previously provided by the investigating authority, and all other materials containing the proprietary information, such as briefs, notes, or charts based on any such information received under a protective order or a disclosure undertaking. (b)(1) The firm of which a person determined to have violated a protective order or a disclosure undertaking is a partner, associate, or employee; any partner, associate, employer, or employee of such person; and any person represented by such person may be barred from appearing before the Department for a designated time period from the date of publication in an official publication of notice that a violation has been determined to exist or may be subjected to the sanctions set forth in paragraph (a) of this section, as appropriate. (2) Each person against whom sanctions are proposed under paragraph (b)(1) of this section is entitled to all the administrative rights set forth in this subpart separately and apart from rights provided to a person subject to sanctions under paragraph (a) of this section, including the right to a charging letter, right to representation, and right to a hearing, but subject to joinder or consolidation by the administrative law judge under § 356.23(b). [59 FR 229, Jan. 3, 1994, as amended at 86 FR 70052, Dec. 9, 2021] § 356.13 Suspension of rules. Upon request by the Deputy Under Secretary, a charged or affected party, or the APO Sanctions Board, the administrative law judge may modify or waive any rule in this subpart upon determining that no party will be unduly prejudiced and the ends of justice will thereby be served and upon notice to all parties. § 356.14 Report of violation and investigation. (a) An employee of the Department or any other person who has information indicating that the terms of a protective order or a disclosure undertaking have been violated will provide the information to a Director or the Chief Counsel. (b) Upon receiving information which indicates that a person may have violated the terms of a protective order or an undertaking, the Director will conduct an investigation concerning whether there was a violation of a protective order or a disclosure undertaking, and who was responsible for the violation, if any. For purposes of this subpart, the Director will be supervised by the Deputy Under Secretary with guidance from the Chief Counsel. The Director will conduct an investigation only if the information is received within 30 days after the alleged violation occurred or, as determined by the Director, could have been discovered through the exercise of reasonable and ordinary care. (c) The Director will provide a report of the investigation to the Deputy Under Secretary, after review by the Chief Counsel, no later than 180 days after receiving information concerning a violation. Upon the Director's request, and if extraordinary circumstances exist, the Deputy Under Secretary may grant the Director up to an additional 180 days to conduct the investigation and submit the report. (d) The following examples of actions that constitute violations of an administrative protective order shall serve as guidelines to each person subject to a protective order. These examples do not represent an exhaustive list. Evidence that one of the acts described in the guidelines has been committed, however, shall be considered by the Director as reasonable cause to believe a person has violated a protective order within the meaning of § 356.15. (1) Disclosure of proprietary information to any person not granted access to that information by protective order, including an official of the Department or member of the Secretariat staff not directly involved with the panel review pursuant to which the proprietary information was released, an employee of any other United States, foreign government or international agency, or a member of the United States Congress, the Canadian Parliament, or the Mexican Congress. (2) Failure to follow the detailed procedures outlined in the protective order for safeguarding proprietary information, including requiring all employees who obtain access to proprietary information (under the terms of a protective order granted their employer) to sign and date a copy of that protective order. (3) Loss of proprietary information. (4) Failure to destroy and certify to the Department the destruction of all copies of the original documents and all notes, memoranda, and submissions containing proprietary information at the close of the proceeding for which the data were obtained by burning or shredding of the documents or by erasing electronic memory, computer disk, or tape memory, as set forth in the protective order. (5) Failure to delete proprietary information from the public version of a brief or other correspondence filed with the Secretariat. (6) Disclosure of proprietary information during a public hearing. (e) Each day of a continuing violation shall constitute a separate violation. [59 FR 229, Jan. 3, 1994, as amended at 86 FR 70052, Dec. 9, 2021] § 356.15 Initiation of proceedings. (a) If the Deputy Under Secretary concludes, after an investigation and report by the Director under § 356.14(c) and consultation with the Chief Counsel, that there is reasonable cause to believe that a person has violated a protective order or a disclosure undertaking and that sanctions are appropriate for the violation, the Deputy Under Secretary will, at the Deputy Under Secretary's discretion, either initiate a proceeding under this subpart by issuing a charging letter as set forth in § 356.16 or request that the authorized agency of the involved FTA country initiate a proceeding by issuing a request to charge as set forth in § 356.17. In determining whether sanctions are appropriate and, if so, what sanctions to impose, the Deputy Under Secretary will consider the nature of the violation, the resulting harm, and other relevant circumstances of the case. The Deputy Under Secretary will decide whether to initiate a proceeding no later than 60 days after receiving a report of the investigation. (b) If the Department receives a request to charge from an authorized agency of a FTA country, the Deputy Under Secretary will promptly initiate proceedings under this part by issuing a charging letter as set forth in § 356.16. § 356.16 Charging letter. (a) Contents of letter. (1) A statement of the allegation that a protective order or a disclosure undertaking has been violated and the basis thereof; (2) A statement of the proposed sanctions; (3) A statement that the charged or affected party is entitled to review the documents or other physical evidence upon which the charge is based and the method for requesting access to, or copies of, such documents; (4) A statement that the charged or affected party is entitled to a hearing before an administrative law judge if requested within 30 days of the date of service of the charging letter and the procedure for requesting a hearing, including the name, address, and telephone number of the person to contact if there are further questions; (5) A statement that the charged or affected party has a right, if a hearing is not requested, to submit documentary evidence to the Deputy Under Secretary and an explanation of the method for submitting evidence and the date by which it must be received; and (6) A statement that the charged or affected party has a right to retain counsel at the party's own expense for purposes of representation. (b) Settlement and amendment of the charging letter. (c) Service of charging letter on a resident of the United States. (i) Mailing a copy by registered or certified mail addressed to the charged or affected party at the party's last known address; (ii) Leaving a copy with the charged or affected party or with an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service for the party; or (iii) Leaving a copy with a person of suitable age and discretion who resides at the party's last known dwelling. (2) Service made in the manner described in paragraph (c)(1) (ii) or (iii) of this section shall be evidenced by a certificate of service signed by the person making such service, stating the method of service and the identity of the person with whom the charging letter was left. (d) Service of charging letter on a non-resident. § 356.17 Request to charge. Upon deciding to initiate a proceeding pursuant to § 356.15, the Deputy Under Secretary will request the authorized agency of the involved FTA country to initiate a proceeding for imposing sanctions for violation of a protective order or a disclosure undertaking by issuing a letter of request to charge that includes a statement of the allegation that a protective order or a disclosure undertaking has been violated and the basis thereof. § 356.18 Interim sanctions. (a) If the Deputy Under Secretary concludes, after issuing a charging letter under § 356.16 and before a final decision is rendered, that interim sanctions are necessary to protect the interests of the Department, an authorized agency of the involved FTA country, or others, including the protection of proprietary information, the Deputy Under Secretary may petition an administrative law judge to impose such sanctions. (b) The administrative law judge may impose interim sanctions against a person upon determining that: (1) There is probable cause to believe that there was a violation of a protective order or a disclosure undertaking and the Department is likely to prevail in obtaining sanctions under this subpart; (2) The Department, authorized agency of the involved FTA country, or others are likely to suffer irreparable harm if the interim sanctions are not imposed; and (3) The interim sanctions are a reasonable means for protecting the rights of the Department, authorized agency of the involved FTA country, or others while preserving to the greatest extent possible the rights of the person against whom the interim sanctions are proposed. (c) Interim sanctions which may be imposed include any sanctions that are necessary to protect the rights of the Department, authorized agency of the involved FTA country, or others, including, but not limited to: (1) Denying a person further access to proprietary information; (2) Barring a person from representing another person before the Department; (3) Barring a person from appearing before the Department; and (4) Requiring the person to destroy and certify to the Department the destruction of all material previously provided by the Department or the investigating authority of the involved FTA country, and all other materials containing the proprietary information, such as briefs, notes, or charts based on any such information received under a protective order or disclosure undertaking. (d) The Deputy Under Secretary will notify the person against whom interim sanctions are sought of the request for interim sanctions and provide to that person the material submitted to the administrative law judge to support the request. The notice will include a reference to the procedures of this section. (e) A person against whom interim sanctions are proposed has a right to oppose the request through submission of material to the administrative law judge. The administrative law judge has discretion to permit oral presentations and to allow further submissions. (f) The administrative law judge will notify the parties of the decision on interim sanctions and the basis therefor within five days of the conclusion of oral presentations or the date of final written submissions. (g) If interim sanctions have been imposed, the investigation and any proceedings under this subpart will be conducted on an expedited basis. (h) An order imposing interim sanctions may be revoked at any time by the administrative law judge and expires automatically upon the issuance of a final order. (i) The administrative law judge may reconsider imposition of interim sanctions on the basis of new and material evidence or other good cause shown. The Deputy Under Secretary or a person against whom interim sanctions have been imposed may appeal a decision on interim sanctions to the APO Sanctions Board, if such an appeal is certified by the administrative law judge as necessary to prevent undue harm to the Department or authorized agency of the involved FTA country, a person against whom interim sanctions have been imposed or others, or is otherwise in the interests of justice. Interim sanctions which have been imposed remain in effect while an appeal is pending, unless the administrative law judge determines otherwise. (j) The Deputy Under Secretary may request an administrative law judge to impose emergency interim sanctions to preserve the status quo. Emergency interim sanctions may last no longer than 48 hours, excluding weekends and holidays. The person against whom such emergency interim sanctions are proposed need not be given prior notice or an opportunity to oppose the request for sanctions. The administrative law judge may impose emergency interim sanctions upon determining that the Department or authorized agency of the involved FTA country is, or others are, likely to suffer irreparable harm if such sanctions are not imposed and that the interests of justice would thereby be served. The administrative law judge will promptly notify a person against whom emergency sanctions have been imposed of the sanctions and their duration. (k) If a hearing has not been requested, the Deputy Under Secretary will request that the Under Secretary appoint an administrative law judge for making determinations under this section. (l) The Deputy Under Secretary will notify the Secretariat concerning the imposition or revocation of interim sanctions or emergency interim sanctions. [59 FR 229, Jan. 3, 1994, as amended at 86 FR 70052, Dec. 9, 2021] § 356.19 Request for a hearing. (a) Any party may request a hearing by submitting a written request to the Under Secretary within 30 days after the date of service of the charging letter. However, the Deputy Under Secretary may request a hearing only if the interests of justice would thereby be served. (b) Upon timely receipt of a request for a hearing, the Under Secretary will appoint an administrative law judge to conduct the hearing and render an initial decision. § 356.20 Discovery. (a) Voluntary discovery. (b) Limitations on discovery. (c) Interrogatories and requests for admissions or production of documents. (d) Depositions. (e) Supplementation of responses. (1) A party is under a duty to seasonably supplement the party's response with respect to any question directly addressed to: (i) The identity and location of persons having knowledge of discoverable matters; and (ii) The identity of each person expected to be called as an expert witness at a hearing, the subject matter on which the witness is expected to testify, and the substance of the testimony. (2) A party is under a duty to seasonably amend a prior response if the party obtains information upon the basis of which the party: (i) Knows the response was incorrect when made; or (ii) Knows that the response, though correct when made, is no longer true, and the circumstances are such that a failure to amend the response is in substance a knowing concealment. (3) A duty to supplement responses may be imposed by order of the administrative law judge, agreement of the parties, or at any time prior to a hearing through new requests for supplementation of prior responses. (f) Enforcement. § 356.21 Subpoenas. (a) Application for issuance of a subpoena. (b) Use of subpoena for discovery. (c) Application for subpoenas for nonparty department records or personnel or for records or personnel of other Government agencies. (2) Such applications shall be ruled upon by the administrative law judge. To the extent that the motion is granted, the administrative law judge shall provide such terms and conditions for the production of the material, the disclosure of the information, or the appearance of the official or employee as may appear necessary and appropriate for the protection of the public interest. (3) No application for a subpoena for production of documents grounded upon the Freedom of Information Act (5 U.S.C. 552) shall be entertained by the administrative law judge. (d) Motion to limit or quash. (e) Ex parte rulings on applications for subpoenas. ex parte, ex parte (f) Role of the Under Secretary. § 356.22 Prehearing conference. (a)(1) If an administrative hearing has been requested, the administrative law judge will direct the parties to attend a prehearing conference to consider: (i) Simplification of issues; (ii) Obtaining stipulations of fact and of documents to avoid unnecessary proof; (iii) Settlement of the matter; (iv) Discovery; and (v) Such other matters as may expedite the disposition of the proceedings. (2) Any relevant and significant stipulations or admissions will be incorporated into the initial decision. (b) If a prehearing conference is impractical, the administrative law judge will direct the parties to correspond with each other or to confer by telephone or otherwise to achieve the purposes of such a conference. § 356.23 Hearing. (a) Scheduling of hearing. (b) Joinder or consolidation. (c) Hearing procedures. (d) Rights of parties. (1) Introduce and examine witnesses and submit physical evidence; (2) Confront and cross-examine adverse witnesses; (3) Present oral argument; and (4) Receive a transcript or recording of the proceedings, upon request, subject to the administrative law judge's orders regarding sealing the record. (e) Representation. (f) Ex parte communications. ex parte § 356.24 Proceeding without a hearing. If no party has requested a hearing, the Deputy Under Secretary, within 40 days after the date of service of a charging letter, will submit for inclusion into the record and provide each charged or affected party information supporting the allegations in the charging letter. Each charged or affected party has the right to file a written response to the information and supporting documentation within 30 days after the date of service of the information provided by the Deputy Under Secretary unless the Deputy Under Secretary alters the time period for good cause. The Deputy Under Secretary may allow the parties to submit further information and argument. § 356.25 Witnesses. Witnesses summoned before the Department shall be paid the same fees and mileage that are paid witnesses in the courts of the United States. § 356.26 Initial decision. (a) Initial decision. (b) Findings and conclusions. (c) Finality of decision. § 356.27 Final decision. (a) APO Sanctions Board. (b) Comments on initial decision. (c) Final decision by the APO Sanctions Board. (d) (d) Contents of final decision. (e) Public notice of sanctions. Federal Register [59 FR 229, Jan. 3, 1994, as amended at 86 FR 70051, Dec. 9, 2021] § 356.28 Reconsideration. Any party may file a motion for reconsideration with the APO Sanctions Board. The party must state with particularity the grounds for the motion, including any facts or points of law which the party claims the APO Sanctions Board has overlooked or misapplied. The party may file the motion within 30 days of the issuance of the final decision or the adoption of the initial decision as the final decision, except that if the motion is based on the discovery of new and material evidence which was not known, and could not reasonably have been discovered through due diligence prior to the close of the record, the party shall file the motion within 15 days of the discovery of the new and material evidence. The party shall provide a copy of the motion to all other parties. Opposing parties may file a response within 30 days of the date of service of the motion. The response shall be considered as part of the record. The parties have no right to an oral presentation on a motion for reconsideration, but the Board may permit oral argument at its discretion. If the motion to reconsider is granted, the Board will review the record and affirm, modify, or reverse the original decision or remand the matter for further consideration to an administrative law judge or the Deputy Under Secretary, as warranted. § 356.29 Confidentiality. (a) All proceedings involving allegations of a violation of a protective order or a disclosure undertaking shall be kept confidential until such time as the Department makes a final decision under these regulations, which is no longer subject to reconsideration, imposing a sanction. (b) The charged party or counsel for the charged party will be, to the extent possible, granted access to proprietary information in these proceedings, as necessary, under administrative protective order, consistent with the provisions of § 356.10. § 356.30 Sanctions for violations of a protective order for privileged information. The provisions of this subpart shall apply to persons who are alleged to have violated a Protective Order for Privileged Information.