[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: 19CFR356.11]

[Page 311-313]
 
                        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.  356.11  Procedures for obtaining access to privileged information.

    (a) Persons who may apply for access to privileged information under 
protective order and filing of applications--(1) Panelists. (i) If a 
panel decides that in camera examination of a document containing 
privileged information in an administrative record is necessary in order 
for the panel to determine whether the document, or portions thereof, 
should be disclosed under a Protective Order for Privileged Information, 
each panelist who is to conduct the in camera review, pursuant to the 
rules of procedure adopted by the United States and the free trade area 
countries to implement Article 1904 of the Agreement, shall submit an 
application for disclosure of the privileged information under 
Protective Order for Privileged Information to the United States section 
of the Secretariat for filing with the Department; and
    (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. Where, in 
the course of a panel review, the panel has reviewed privileged 
information under a Protective Order for Privileged Information, and the 
issue to which such information pertains is relevant to the evaluation 
of whether the United States should request an extraordinary challenge 
committee, each official of the United States Government (other than an 
officer or employee of the investigating authority that issued the final 
determination subject to review) whom the United States Trade 
Representative informs the Department requires access for the purpose of 
such evaluation shall file the completed original and five copies of an 
application for a Protective Order for Privileged Information with the 
United States section of the Secretariat which, in turn, shall submit 
the original and one copy of the application to the Department.
    (3) Designated officials of the government of a FTA country. Where, 
in the course of a panel review, the panel has reviewed privileged 
information under a Protective Order for Privileged Information, and the 
issue to which such information pertains is relevant to the evaluation 
of whether the Government of an involved FTA country should request an 
extraordinary challenge committee, each official of the Government of 
the involved FTA country whom an authorized agency of the involved FTA 
country informs the Department requires access for the purpose of such 
evaluation shall file the completed original and five copies of an 
application for a Protective Order for Privileged Information with the 
United States section of the Secretariat which, in turn, shall submit 
the original and one copy of the application to the Department.
    (4) Members of an extraordinary challenge committee. Where an 
extraordinary challenge record contains privileged information and a 
Protective Order for Privileged Information was

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issued to counsel or professionals representing participants in the 
panel review at issue, each member of the extraordinary challenge 
committee shall submit an application for a Protective Order for 
Privileged Information to the United States section of the Secretariat 
for filing with the Department.
    (5) Counsel or a professional under the direction or control of 
counsel. If the panel decides, in accordance with the Article 1904 
Rules, that disclosure of a document containing privileged information 
is appropriate, a counsel or a professional under the direction or 
control of counsel identified in such a decision as entitled to release 
of information under a Protective Order for Privileged Information shall 
submit an application for a Protective Order for Privileged Information. 
Any such person shall:
    (i) 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; 
and
    (ii) As soon as the deadline fixed under the Article 1904 Panel 
Rules for filing a Notice of Appearance in the panel review has passed, 
shall serve a copy of 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. If the panel decides, in accordance 
with the Article 1904 Panel Rules, that disclosure of a document 
containing privileged information is appropriate, any person identified 
in such a decision as entitled to release of information under a 
Protective Order for Privileged Information, e.g., a Secretary, 
Secretariat staff, court reporters, interpreters and translators, or a 
member of the staff of a panelist or extraordinary challenge committee 
member, shall submit an application for release under Protective Order 
for Privileged Information to the United States section of the 
Secretariat for filing with the Department.
    (b) Contents of applications for release under protective order for 
privileged information. (1) The Department has adopted application forms 
for disclosure of privileged information which are available from the 
United States section of the Secretariat and the Central Records Unit, 
room B-099, U.S. Department of Commerce, 14th and Constitution Avenue 
NW., Washington, DC 20230. These forms may be amended from time to time.
    (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 1904 of the Agreement;
    (iii) Upon completion of the panel review, or at such earlier date 
as may be determined by the Department, return to the Department or 
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

[[Page 313]]

    (iv) Acknowledge that breach thereof may subject the signatory to 
sanctions under Sec. Sec.  356.12 and 356.30.
    (c) Issuance of protective orders for privileged information--(1) 
Panelists, designated government officials and members of an 
extraordinary challenge committee. (i) Upon receipt of an application 
for protective order under this section from a panelist, designated 
government official or member of an extraordinary challenge committee, 
the Department shall issue a Protective Order for Privileged 
Information. 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 Sec. Sec.  356.10(b)(4) (ii) and (iii).
    (ii) If the Department issues a Protective Order for Privileged 
Information to a member of a binational panel or extraordinary challenge 
proceeding initiated under the United States-Canada Free Trade 
Agreement, that person must countersign the protective order and return 
one copy of the countersigned protective order to the United States 
section of the Secretariat.
    (2) Counsel or a professional under the direction or control of 
counsel. Upon receipt of an application for protective order under this 
section from a counsel or a professional under the direction or control 
of counsel, the Department shall issue a Protective Order for Privileged 
Information. If the Department issues a protective order to such person, 
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 Sec. Sec.  356.10(b)(4) (ii) and (iii).
    (3) Other designated persons described paragraph (a)(6) of this 
section. Upon receipt of an application for protective order under this 
section from a designated person described in paragraph (a)(6) of this 
section, the Department shall issue a Protective Order for Privileged 
Information. The Department shall transmit the original and four copies 
of the protective order to the United States section of the Secretariat.
    (d) Modification or revocation of protective order for privileged 
information--(1) Notification. If any person believes that changed 
conditions of fact or law, or the public interest, may require that a 
Protective Order for Privileged Information be modified or revoked, in 
whole or in part, such person may notify the 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 for 
Privileged Information 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 for Privileged Information 
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 Sec. Sec.  356.10(b)(4) (ii) 
and (iii).