[Code of Federal Regulations]
[Title 19, Volume 3]
[Revised as of January 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 19CFR356.10]

[Page 308-311]
 
                        TITLE 19--CUSTOMS DUTIES
 
                         DEPARTMENT OF COMMERCE
 
PART 356--PROCEDURES AND RULES FOR IMPLEMENTING ARTICLE 1904 OF THE NORTH AMERICAN FREE TRADE AGREEMENT--Table of Contents
 
            Subpart C--Proprietary and Privileged Information
 
Sec.  356.10  Procedures for obtaining access to proprietary information.

    (a) Persons who must file an application for disclosure under 
protective order. In order to be permitted access to proprietary 
information in the administrative record of a final determination under 
review by a panel, all persons described in Sec. Sec.  356.9 (a), (b), 
(d), (e), (f) and (g) shall file an application for a protective order. 
The procedures for applying for a protective order described in 
paragraph (b) of this section apply as well to amendments or 
modifications filed by persons described in Sec.  356.9.
    (b) Procedures for applying for a protective order--(1) Contents of 
applications. (i) The Department has adopted application forms for 
disclosure of proprietary information which are available from the 
United States section of the Secretariat or the Central Records Unit, 
room B-099, U.S. Department of Commerce, 14th and Constitution Avenue, 
NW., Washington, DC 20230. The application forms may be amended from 
time to time.
    (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) An official of the Department involved in the particular panel 
review in which the proprietary information is part of the 
administrative record;
    (2) The person from whom the information was obtained;
    (3) A person who has been granted access to the proprietary 
information at issue under Sec.  356.9; and
    (4) A person 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 a paralegal, law clerk, or secretary 
if such person:
    (i) Is not involved in competitive decision-making for a participant 
in the panel review or for any person that would gain competitive 
advantage through knowledge of the proprietary information sought; and
    (ii) Has agreed to be bound by the terms set forth in the 
application for protective order by the counsel, professional, panelist, 
or committee member;
    (B) Not use any of the proprietary information not otherwise 
available to the applicant for purposes other than proceedings pursuant 
to Article 1904 of the Agreement;
    (C) Upon completion of the panel review, or at such earlier date as 
may be determined by the Department, return

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to the Department or 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 Sec.  356.12.
    (2) Timing of application for disclosure under protective order--(i) 
Persons described in Sec.  356.9(a) (panelists, etc.). A person 
described in Sec.  356.9(a) may file an application after a Notice of 
Request for Panel Review has been filed with the Secretariat.
    (ii) Persons described in Sec.  356.9(b) (counsel, etc.). A person 
described in Sec.  356.9(b) may file an application at any time but not 
before that person files a Complaint or a Notice of Appearance.
    (iii) Persons described in Sec.  356.9(d) (Secretaries, etc.). A 
person described in Sec.  356.9(d) shall file an application immediately 
upon assuming official responsibilities in the Secretariat.
    (iv) Persons described in Sec.  356.9 (e), (f) or (g) (designated 
Government officials or court reporters, etc.). A person described in 
Sec.  356.9 (e), (f) or (g) shall file an application before seeking or 
obtaining access to proprietary information.
    (3) Filing of applications. A person described in Sec.  356.9 (a), 
(b), (d), (e), (f) or (g) shall file the completed original and five 
copies of an application with the United States section of the 
Secretariat which, in turn, shall submit the original and one copy of 
the application to the Department. A letter of transmittal must be bound 
to the original and each copy as the first page of the document.
    (4) Service of applications--(i) Persons described in Sec. Sec.  
356.9(b) (counsel, etc.). A person described in Sec.  356.9(b) who files 
an application before the expiration of the time period fixed under the 
Article 1904 Panel Rules for filing a Notice of Appearance in the panel 
review shall serve one copy of the application on each person listed on 
the service list in accordance with paragraphs (b)(4) (ii) and (iii) of 
this section. In any other case, such person shall serve one copy of the 
application on each participant, other than the investigating authority, 
in accordance with paragraphs (b)(4) (ii) and (iii) of this section.
    (ii) Method of service. A document may be served by:
    (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 facsimile transmission or by expedited delivery courier 
or expedited mail service; or
    (C) Personal service on the participant.
    (iii) Proof and date of service. A proof of service shall appear on, 
or be affixed to, the document. Where a document is served by expedited 
delivery courier or expedited mail service, the date of service set out 
in the affidavit of service or certificate of service shall be the day 
on which the document is consigned to the expedited delivery courier 
service or expedited mail service.
    (5) Release to employees of panelists, committee members, and 
counsel or professionals. A person described in Sec.  356.9(c), 
including a paralegal, law clerk, or secretary, may be permitted access 
to proprietary information disclosed under protective order by the 
counsel, professional, panelist, or extraordinary challenge committee 
member who retains or employs such person, if such person has agreed to 
the terms of the protective order issued to the counsel, professional, 
panelist, or extraordinary challenge committee member, by signing and 
dating a completed copy of the application for protective order of the 
representative counsel, professional, panelist or extraordinary 
challenge committee member in the location indicated in that 
application.
    (6) Counsel or professional who retains access to proprietary 
information under a protective order issued during the administrative 
proceeding. A person described in Sec.  356.9(b) who has been granted 
access to proprietary information under protective order during an 
administrative proceeding that resulted in a final determination that 
becomes the subject of panel review may, if permitted by the terms of 
the protective order previously issued by the Department, retain such 
information until the applicant receives a protective order under this 
part.

[[Page 310]]

    (c) Issuance and service of protective orders--(1) Persons described 
in Sec.  356.9(a) (panelists, etc.). (i) Upon receipt by the Department 
of an application from a person described in Sec.  356.9(a), the 
Department will issue a protective order authorizing disclosure of 
proprietary information included in the administrative record of the 
final determination that is the subject of the panel review at issue. 
The Department shall transmit the original and four copies of the 
protective order to the United States section of the Secretariat which, 
in turn, shall transmit the original to the applicant and serve one copy 
of the order on each participant, other than the investigating 
authority, in accordance with paragraphs (b)(4) (ii) and (iii) of this 
section.
    (ii) A member of a binational panel or extraordinary challenge 
committee proceeding initiated under the United States-Canada Free Trade 
Agreement to whom the Department issues a protective order must 
countersign the protective order and return one copy of the 
countersigned protective order to the United States section of the 
Secretariat.
    (2) Persons described in Sec. Sec.  356.9 (b) or (c) (counsel, etc., 
or paralegals, etc.)--(i) Opportunity to object to disclosure. The 
Department will not rule on an application filed by a person described 
in Sec.  356.9(b) until at least ten days after the request is filed, 
unless there is compelling need to rule more expeditiously. Unless the 
Department has indicated otherwise, any person may file an objection to 
the application within seven days of filing of the application. Any such 
objection shall state the specific reasons in the view of such person 
why the application should not be granted. One copy of the objection 
shall be served on the applicant and on all persons who were served with 
the application. Service shall be made in accordance with paragraphs 
(b)(4) (ii) and (iii) of this section. Any reply to an objection will be 
considered if it is filed before the Department renders a decision.
    (ii) Timing of decisions on applications. Normally, the Department 
will render a decision to approve or deny an application within 14 days. 
If any person files an objection, the Department will normally render 
the decision within 30 days.
    (iii) Approval of applications. If appropriate, the Department will 
issue a protective order permitting the release of proprietary 
information to the applicant.
    (iv) Denial of applications. If the Department denies an 
application, it shall issue a letter notifying the applicant of its 
decision and the reasons therefor.
    (v) Issuance of protective orders. If the Department issues a 
protective order to a person described in Sec.  356.9(b), that person 
shall immediately file four copies of the protective order with the 
United States section of the Secretariat and shall serve one copy of the 
order on each participant, other than the investigating authority, in 
accordance with paragraphs (b)(4) (ii) and (iii) of this section.
    (3) Persons described in Sec.  356.9 (d) or (g) (Secretaries, etc., 
or court reporters, etc.). Upon receipt by the Department of an 
application from a person described in Sec.  356.9 (d) or (g), the 
Department will issue a protective order authorizing disclosure of 
proprietary information to the applicant. The Department shall transmit 
the original and four copies of the protective order to the United 
States section of the Secretariat.
    (4) Persons described in Sec.  356.9 (e) or (f) (designated 
Government officials). (i) Upon receipt by the Department of an 
application from a person described in Sec.  356.9 (e) or (f), the 
Department will issue a protective order authorizing disclosure of 
proprietary information included in the record of the panel review at 
issue. The Department shall transmit the original and four copies of the 
protective order to the United States section of the Secretariat which, 
in turn, shall transmit the original to the applicant and serve one copy 
of the document on each participant, other than the investigating 
authority, in accordance with paragraphs (b)(4) (ii) and (iii) of this 
section.
    (d) Modification or revocation of protective orders--(1) 
Notification. If any person believes that changed conditions of fact or 
law, or the public interest, may require that a protective order issued 
pursuant to paragraph (c) of this section be modified or revoked, in 
whole or in part, such person may notify the

[[Page 311]]

Department in writing. The notification shall state the changes desired 
and the changed circumstances warranting such action and shall include 
materials and argument in support thereof. Such notification shall be 
served by the person submitting it upon the person to whom the 
protective order was issued. Responses to the notification may be filed 
within 20 days after the notification is filed unless the Department 
indicates otherwise. The Department may also consider such action on its 
own initiative.
    (2) Issuance of modification or revocation. If the Department 
modifies or revokes a protective order pursuant to paragraph (d) of this 
section, the Department shall transmit the original and four copies of 
the modification or Notice of Revocation to the United States section of 
the Secretariat which, in turn, shall transmit the original to the 
person to whom the protective order was issued and serve one copy on 
each participant, other than the investigating authority, in accordance 
with paragraphs (b)(4) (ii) and (iii) of this section.