§ 356.10 - Procedures for obtaining access to proprietary information.

§ 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 §§ 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 § 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

Room B8024, U.S. Department of Commerce, 14th Street 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 § 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

10.12 of the Agreement;

(C) Upon completion of the panel review, or at such earlier date as may be determined by the Department,

return to the Department or

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 -

(i) Persons described in § 356.9(a) (panelists, etc.). A person described in § 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 § 356.9(b) (counsel, etc.). A person described in § 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 § 356.9(d) (Secretaries, etc.). A person described in § 356.9(d) shall file an application immediately upon assuming official responsibilities in the Secretariat.

(iv) Persons described in § 356.9 (e), (f) or (g) (designated Government officials or court reporters, etc.). A person described in § 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 § 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 provide the application to the Department. A letter of transmittal and proposed protective order must be bound to the original and each copy as the first page of the documentincluded with the application.

(4) Service of applications -

(i) Persons described in §§ 356.9(b) (counsel, etc.). A person described in § 356.9(b) who files an application before the expiration of the time period fixed under the Article 1904 10.12 Binational 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 electronic means or by expedited delivery courier or expedited mail service; or

(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. 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. If a document is served by electronic means, the date of service shall be the day on which the document is sent by the sender. If a document is filed using the United States section of the Secretariat's electronic filing platform, the date of service shall be the date of filing.

(5) Release to employees of panelists, committee members, and counsel or professionals. A person described in § 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 § 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.

(c) Issuance and service of protective orders -

(1) Persons described in § 356.9(a) (panelists, etc.).

(i) Upon receipt by the Department of an application from a person described in § 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 order 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. [Removed]

(2) Persons described in §§ 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 § 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 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 § 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 § 356.9(d) or (g) (Secretaries, etc., or court reporters, etc.). Upon receipt by the Department of an application from a person described in § 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 § 356.9 (e) or (f) (designated Government officials).

(i) Upon receipt by the Department of an application from a person described in § 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

order to the applicant and serve

one copy of

the

document

order on each participant, other than the investigating authority, in accordance with paragraphs (b)(4)(ii) and (iii) of this section.

(ii) [Reserved]

(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 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 this 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 document to the person to whom the protective order was issued and serve one copy the document on each participant, other than the investigating authority, in accordance with paragraphs (b)(4)(ii) and (iii) of this section.

[59 FR 229, Jan. 3, 1994, as amended at 86 FR 70049, Dec. 9, 2021]