[Federal Register Volume 61, Number 87 (Friday, May 3, 1996)]
[Rules and Regulations]
[Pages 19835-19841]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11006]
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DEPARTMENT OF THE TREASURY
19 CFR Part 103
[T.D. 96-36]
RIN 1515-AB58
Disclosure or Production of Customs Information Pursuant to Legal
Process
AGENCY: Customs Service, Treasury.
ACTION: Final rule.
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SUMMARY: This document amends the Customs Regulations by adopting final
rules that clarify the procedures to be followed when subpoenas or
other demands of courts and other authorities,
[[Page 19836]]
except Congress, are issued to compel the disclosure or production of
Customs information, i.e., documents, information, or employee
testimony, for use in federal, state, local, and foreign proceedings.
The procedures will be applicable to current and former Customs
employees and to litigants who seek to compel Customs employees to
disclose or produce Customs information. Specifically, the amendments
will place in the Office of the Chief Counsel the authority to make
determinations concerning the disclosure of such information to ensure
the more efficient use of Customs personnel resources in responding to
requests in a timely manner. The amendments also restructure the
general organizational scheme of Part 103 of the Customs Regulations to
clarify their application.
EFFECTIVE DATE: June 3, 1996.
FOR FURTHER INFORMATION CONTACT: Matthew McConkey, Office of the Chief
Counsel (202) 927-6900.
SUPPLEMENTARY INFORMATION:
Background
Customs enforces some 600 laws for 60 agencies while facilitating
the flow of merchandise in international commerce. In addition to
maintaining records relevant to its enforcement functions, Customs also
maintains information that has a bearing on other law enforcement
provisions. Many of the records Customs maintains contain confidential
business information subject to the Trade Secrets Act, 18 U.S.C. 1905,
which prohibits the unauthorized disclosure of such information by an
officer or employee of the United States.
Regulations pertaining to Customs release of information, i.e.,
documents, information, or employee testimony, subpoenaed for use in
judicial proceedings are found at Sec. 103.17 of the Customs
Regulations (19 CFR 103.17). But while Sec. 103.17 provides some
procedures regarding the disclosure of information, e.g., the testimony
of employees, and the production of documents pursuant to a subpoena
duces tecum in cases both where the agency is and is not a party to a
legal proceeding, it does not adequately describe the procedures for
determining whether and how the information should be released in
response to such demands.
On September 6, 1994, Customs published a document in the Federal
Register (59 FR 46007) proposing to amend the Customs Regulations to
clarify the procedures to be followed when subpoenas or other demands
of courts and other authorities, except Congress, are issued to compel
the disclosure or production of Customs information for use in various
proceedings. The procedures would be applicable to current and former
Customs employees and to litigants who seek to compel Customs employees
to disclose or produce Customs information. Specifically, the proposed
amendments sought to place in the Office of the Chief Counsel the
responsibility to make determinations concerning the disclosure of such
information to ensure the more efficient use of Customs personnel
resources in responding to requests in a timely manner. The amendments
also proposed to restructure the general organizational scheme of part
103 of the Customs Regulations to clarify their application. The notice
proposed to revise two sections (Secs. 103.0 and 103.17), renumber five
sections (Secs. 103.14 through 103.18), and create six new sections
(Secs. 103.22 through 103.27) of the Customs Regulations. The notice
also solicited comments concerning these changes.
The comments received and Customs responses to them are set forth
below.
Discussion of Comments
Two comments were received--one from a Bar Association, the other
from a group of undergraduate business students--that raised three
areas of concern: (1) Centralizing decisions over the disclosure
process; (2) agency assertion of privilege and the role of discovery;
and (3) the omission of in camera disclosure provisions. We address
these concerns in turn.
Centralizing Decisions Over the Disclosure Process
Comment: Both commenters protested the concept of centralized
decision-making concerning the disclosure process as likely to increase
the inefficiency of a bureaucracy given that centralization requires
the central decision-maker to find the information demanded, analyze
it, etc. These commenters argue that the offices having the information
demanded are in closer contact with the information and should have the
authority to decide whether to comply with demand.
Customs Response: As a general proposition, Customs believes that
it is appropriate to fix the responsibility for legal review of
subpoena issues within one office. It was, perhaps, misleading to state
in the proposed rule that the transferring of responsibility for legal
review of subpoena issues to the Office of Chief Counsel was a
centralizing move. Decisions concerning the disclosure or production of
Customs information pursuant to legal process are now handled by the
Disclosure Law Branch of the Office of Regulations and Rulings, which
has offices only at Customs Headquarters in Washington, D.C. By placing
the decision-making process regarding subpoena demands for information
in the Office of the Chief Counsel, the amendments to the regulations
actually serve to decentralize the processing of such information
demands, as the Office of the Chief Counsel has a field presence
throughout the United States. Thus, the processing of subpoena demands
should be handled more efficiently than when all such demands were
handled by the one office in Washington, D.C.
Agency Assertion of Privilege and the Role of Discovery
Comment: Stating that the proposed regulations are not as even-
handed as the present regulations in allowing for privilege claims, a
commenter proposed adding language to Sec. 103.21(e), which concerns
disclosure of information to government law enforcement or regulatory
agencies, and Sec. 103.26, which concerns procedures in the event of a
demand for Customs information in a state or local criminal proceeding,
to reflect disclosure limitations, i.e., scope of privileges, contained
in Sec. 103.12, which concerns Freedom of Information Act (FOIA)
exemptions from disclosure. The commenter states that these two
regulatory provisions should be more explicit as to what information
can be turned over and on whose authority and suggests that language be
added to more appropriately apprise Customs field personnel of their
duty to refer certain matters to Customs Headquarters.
Customs Response: Customs does not agree with the commenter.
Sections 103.21(e) and 103.26 are located in subpart B of the Customs
Regulations, which concerns disclosure of Customs information pursuant
to legal process for use in legal proceedings; however, the disclosure
limitations of concern (Sec. 103.12) are located in subpart A of the
regulations, which concerns disclosure of Customs information pursuant
to various disclosure laws. This means that the exemptions available
under provisions in subpart A are not available under provisions in
subpart B. On a separate note, the Office of the Chief Counsel does not
process information requests under subpart A, only those under subpart
B. Accordingly, no change to the proposed regulations is made based on
this comment.
Comment: A commenter stated that the provisions of Sec. 103.21(f)
are inadequate to protect the orderly functioning of the discovery
process in
[[Page 19837]]
that they allow the Government to frustrate discovery requests solely
by asserting that regulation as the reason for objection to discovery
requests, compelling parties to resort to judicial intervention to
resolve matters of asserted privilege. The commenter stresses the point
that if the Government wishes to assert a non-disclosure privilege in
any action before the Court of International Trade (CIT) (particularly
in discovery), then such privilege should be asserted by its attorneys
with specific references to the discovery request and which privilege
is claimed, i.e., executive, statutory, or evidentiary. Accordingly, to
make it clear that non-government attorneys should not have to make
special discovery requests of the Chief Counsel's office to carry on
discovery against the United States nor have to resort to the Court to
enforce discovery demands, the commenter suggests that language be
added to Sec. 103.21(f) indicating this.
Customs Response: Customs believes that Sec. 103.21(f) need not be
changed. Section 103.21(f) is not a substantive provision, but rather a
statement of purpose, that is not subject to the general prohibition
provisions contained at Sec. 103.22, which only pertain to proceedings
in which Customs is not a party (emphasis added).
In the notice of proposed rulemaking, it was stated, regarding
paragraph (f) of Sec. 103.21, that this paragraph serves to limit the
scope of the proposed regulations by providing that it is not intended
to impede or restrict the appropriate disclosure of any information to
certain federal attorneys and judges in connection with Customs cases--
i.e., when the Customs Service is a party--referred by the Department
of the Treasury to the Department of Justice for prosecution or
defense. The comment presumes that the regulatory provision proposed by
Customs will control when the agency is a party before an Article III
court, which cannot be; the Court's rules of procedure will, of course,
control such a proceeding. Accordingly, no change to this regulatory
provision is made based on this comment; however, the heading of
Sec. 103.22 is revised to reflect the fact that the procedures
thereunder only pertain when the Customs Service is not a party to the
litigation or proceeding.
Omission of In Camera Disclosure Provisions
Comment: A commenter stated that the provisions of current
Sec. 103.17(d), which provide for in camera review of documents, are
not extended to certain other criminal actions. While the commenter
believes that proposed Sec. 103.21(f) confers the right of in camera
inspection on judges of the CIT, he states that such an extension is
not evident in the provisions of proposed Sec. 103.26, which pertains
to criminal proceedings in other federal courts. Accordingly, the
commenter suggests that Customs amend its regulations to allow for
turnover of its information to state and local law enforcement
officers.
Customs Response: Although the comment seems to present two
different issues in camera disclosure to judges and disclosure to law
enforcement personnel), Customs does not agree that in camera
inspection of records and documents in state or local criminal
proceedings is not present in Sec. 103.26. Regarding in camera
disclosure of Customs documents to any court (State or Federal, whether
civil or criminal), it is within the inherent power of a court of
competent jurisdiction to order in camera disclosure of Customs
documents. Regarding disclosure to state and local law enforcement
officers, as provided at Sec. 103.21(e), nothing in this subpart is
intended to impede the appropriate disclosure of information, in
keeping with the Privacy Act (5 U.S.C. 552a) and the Trade Secrets Act
(18 U.S.C. 1905), by Customs to federal, state, local, and foreign law
enforcement or regulatory agencies. Nevertheless, because of the
concern expressed over Customs perceived ability to withhold records
from a court of competent jurisdiction, Customs has no hesitation in
adding the former in camera provisions of Sec. 103.17(d) as new
Sec. 103.21(i). Accordingly, a provision is added to the final
regulations providing that nothing in new subpart B authorizes Customs
personnel to withhold records from a federal court, whether civil or
criminal, pursuant to its order for such records appropriately made,
for purposes of in camera inspection of the records to determine the
propriety of claimed exemption(s) from disclosure.
Other Matters
Three other procedural changes to the proposed regulations are made
and a referencing (typographical) error is corrected at this time. The
first procedural change, a change to Sec. 103.22(d), increases the
processing time from 5 days to 10 days. This change is made because
Customs wishes to ensure that demands for Customs information can be
met by available staff. The second and third procedural changes, to
Sec. 103.23(b), add two subparagraphs to provide for two additional
circumstances where disclosure will not be made: failure to make proper
service upon the United States (Sec. 103.23(b)(10)), and failure to
comply with federal, state, or local rules of discovery
(Sec. 103.23(b)(11)). Although these grounds for not authorizing
disclosure are readily contained in both civil and criminal rules of
procedure throughout the United States, the presence of either of these
facts at the agency level will help the Office of the Chief Counsel to
summarily respond to such requests. The typographical error concerns a
reference in Sec. 103.25 to Sec. 103.22; it should read Sec. 103.24 to
reflect the statement in the BACKGROUND portion of the notice that the
new Sec. 103.25 concerns ``the preceding section'' i.e., Sec. 103.24.
Unrelated to subpoenas, this document also amends Sec. 103.6,
concerning the initial handling of requests for information pursuant to
the FOIA, to reflect that the initial determination regarding such
requests for information maintained in the field shall be made by the
appropriate director of a service port, or in the case of records of
the Office of Investigations, the appropriate special agent in charge.
The regulations currently do not distinguish between records of the
Office of Investigations and other records regarding who shall make the
initial determination concerning their release.
Conclusion
Based on the comments received and further consideration by
Customs, Customs has decided to finalize the amendments proposed with
the following changes: In Sec. 103.21, a new paragraph (i) is added to
continue authorizing in camera inspections by any court; in
Sec. 103.22(d), the processing time of requests is increased from five
to ten days; and in Sec. 103.23(b), subparagraphs (10) and (11) are
added providing additional circumstances where disclosure will not be
made: where there is a failure to make proper service upon the United
States, and where there is a failure to comply with federal, state, or
local rules of discovery. Further, the heading of Sec. 103.22 is
revised to make it clear that the procedures thereunder only pertain
when the Customs Service is not a party to the litigation or proceeding
and the referencing (typographical) error in Sec. 103.25 to Sec. 103.22
is corrected to reference Sec. 103.24. Also, references to certain
Customs field organization designations, i.e., district directors and
regional commissioners, are revised to reference port directors to
account for Customs reorganization. Lastly, certain editorial changes
are made to make clear the relationship between (1) the Office
[[Page 19838]]
of the Chief Counsel, (2) its field counsel, (3) Customs employees
served with demands, and (4) the official in charge of the originating
component.
Inapplicability of the Regulatory Flexibility Act and Executive Order
12866
Pursuant to the provisions of the Regulatory Flexibility Act (5
U.S.C. 601 et seq.) and based upon the information set forth above, it
is certified that the regulations will not have a significant impact on
a substantial number of small entities. Accordingly, these regulations
are not subject to the regulatory analysis or other requirements of 5
U.S.C. 603 and 604. Further, this document does not meet the criteria
for a ``significant regulatory action'' as specified in E.O. 12866.
List of Subjects in 19 CFR Part 103
Administrative practice and procedure, Confidential business
information, Courts, Freedom of Information, Law enforcement, Privacy,
Reporting and recordkeeping requirements, Subpoenas.
Amendment to the Regulations
For the reasons set forth above, part 103, Customs Regulations (19
CFR part 103), is amended as set forth below:
PART 103--AVAILABILITY OF INFORMATION
1. The table of contents of part 103 is revised to read as set
forth below to reflect the amendments that follow:
Sec.
103.0 Scope.
Subpart A--Production of documents/disclosure of information pursuant
to the FOIA
103.1 Public reading rooms.
103.2 Information available to the public.
103.3 Publication of information in the Federal Register.
103.4 Public inspection and copying.
103.5 Specific requests for records.
103.6 Grant or denial of initial request.
103.7 Administrative appeal of initial determination.
103.8 Time extensions.
103.9 Judicial review.
103.10 Fees for services.
103.11 Specific Customs Service records subject to disclosure.
103.12 Exemptions.
103.13 Segregability of records.
Subpart B--Production or disclosure in Federal, State, Local, and
Foreign proceedings
103.21 Purpose and definitions.
103.22 Procedure in the event of a demand for Customs information
in any federal, state, or local civil proceeding or administrative
action.
103.23 Factors in determining whether to disclose information
pursuant to a demand.
103.24 Procedure in the event a decision concerning a demand is not
made prior to the time a response to the demand is required.
103.25 Procedure in the event of an adverse ruling.
103.26 Procedure in the event of a demand for Customs information
in a state or local criminal proceeding.
103.27 Procedure in the event of a demand for Customs information
in a foreign proceeding.
Subpart C--Other Information Subject to Restricted Access
103.31 Information on vessel manifests and summary statistical
reports.
103.32 Information concerning fines, penalties, and forfeitures
cases.
103.33 Release of information to foreign agencies.
103.34 Sanctions for improper actions by Customs officers or
employees.
Secs. 103.31, 103.33, 103.34 [Amended]
2. The general authority citation for part 103 is revised and
specific authority citations for Secs. 103.31, 103.33, and 103.34 are
added to read as follows:
Authority: 5 U.S.C. 301, 552, 552a; 19 U.S.C. 66, 1624; 31
U.S.C. 9701. Section 103.31 also issued under 19 U.S.C. 1431;
Section 103.33 also issued under 19 U.S.C. 1628; Section 103.34 also
issued under 18 U.S.C. 1905.
3. Section 103.0 is revised to read as follows:
Sec. 103.0 Scope.
This part governs the production/disclosure of agency-maintained
documents/information requested pursuant to various disclosure laws
and/or legal processes. Thus, the extent of disclosure of requested
information may be dependent on whether the request is pursuant to the
provisions of the Freedom of Information Act (FOIA), as amended (5
U.S.C. 552), the Privacy Act of 1974, as amended (5 U.S.C. 552a), and/
or under other statutory or regulatory authorities, as required by
administrative and/or legal processes. The regulations for this part
contain a discussion of applicable fees for the search, duplication,
review, and other tasks associated with processing information requests
pursuant to the FOIA, and also provide for the appeal of agency
decisions and sanctions for the improper withholding and/or the
untimely release of requested information. As information obtained by
Customs is derived from a myriad of sources, persons seeking
information should consult with a disclosure law officer, the director
of a service port, or the local public information officer before
invoking the formal procedures set forth in this part. These
regulations supplement the regulations of the Department of the
Treasury regarding public access to records, which are found at 31 CFR
part 1, and, in the event of any inconsistency between these
regulations and those of the Department of the Treasury, the latter
shall prevail. For purposes of this part, the Office of the Chief
Counsel is considered a part of the United States Customs Service.
Secs. 103.1-103.13 [Amended]
4. Sections 103.1 through 103.13 are designated as subpart A and a
new heading for subpart A is added to read as follows:
Subpart A--Production of documents/disclosure of information under
the FOIA
5. In Sec. 103.6, paragraph (a)(1) is revised to read as follows:
Sec. 103.6 Grant or denial of initial request.
(a) Officers designated to make initial determinations--(1) Service
ports. The appropriate director of a service port, or in the case of
records of the Office of Investigations, the appropriate special agent
in charge (SAC), shall make any initial determination of a request for
a record which is maintained, respectively, at that service port or
under the SAC's jurisdiction.
* * * * *
Secs. 103.14, 103.15, 103.16, 103.18 [Redesignated as Secs. 103.31,
103.34, 103.32, 103.33]
6. Sections 103.14, 103.15, 103.16, and 103.18 are redesignated as
Secs. 103.31, 103.34, 103.32, and 103.33, respectively, and designated
as subpart C and a new heading for subpart C is added to read as
follows:
Subpart C--Other Information Subject to Restricted Access
Sec. 103.17 [Removed]
7. Section 103.17 is removed.
8. A new subpart B, consisting of Secs. 103.21 through 103.27, is
added to read as follows:
Subpart B--Production or disclosure in Federal, State, Local, and
Foreign proceedings
Sec. 103.21 Purpose and definitions.
(a) Purpose. (1) This subpart sets forth procedures to be followed
with respect to the production or disclosure of any documents contained
in Customs files, any information relating to material contained in
Customs files, any testimony by a Customs employee, or any information
acquired by any person as part of that person's performance of
[[Page 19839]]
official duties as a Customs employee or because of that person's
official status, hereinafter collectively referred to as
``information'', in all federal, state, local, and foreign proceedings
when a subpoena, notice of deposition (either upon oral examination or
written interrogatory), order, or demand, hereinafter collectively
referred to as a ``demand'', of a court, administrative agency, or
other authority is issued for such information.
(2) This subpart does not cover those situations where the United
States is a party to the action. In situations where the United States
is a party to the action, Customs employees are instructed to follow
internal Customs policies and procedures.
(b) Customs employee. For purposes of this subpart, the term
``Customs employee'' includes all present and former officers and
employees of the United States Customs Service.
(c) Customs documents. For purposes of this subpart, the term
``Customs documents'' includes any document (including copies thereof),
no matter what media, produced by, obtained by, furnished to, or coming
to the knowledge of, any Customs employee while acting in his/her
official capacity, or because of his/her official status, with respect
to the administration or enforcement of laws administered or enforced
by the Customs Service.
(d) Originating component. For purposes of this subpart, the term
``originating component'' references the Customs official, or the
official's designee, in charge of the office responsible for the
collection, assembly, or other preparation of the information demanded
or that, at the time the person whose testimony is demanded acquired
the information in question, employs or employed the person whose
testimony is demanded.
(e) Disclosure to government law enforcement or regulatory
agencies. Nothing in this subpart is intended to impede the appropriate
disclosure of information by Customs to federal, state, local, and
foreign law enforcement or regulatory agencies, in accordance with the
confidentiality requirements of the Privacy Act (5 U.S.C. 552a), the
Trade Secrets Act (18 U.S.C. 1905), and other applicable statutes.
(f) Disclosure to federal attorneys and the Court of International
Trade. Nothing in this subpart is intended to restrict the disclosure
of Customs information requested by the Court of International Trade,
U.S. Attorneys, or attorneys of the Department of Justice, for use in
cases which arise under the laws administered or enforced by, or
concerning, the Customs Service and which are referred by the
Department of the Treasury to the Department of Justice for prosecution
or defense.
(g) Disclosure of non-Customs information. Nothing in the subpart
is intended to impede the appropriate disclosure of non-Customs
information by Customs employees in any proceeding in which they are a
party or witness solely in their personal capacities.
(h) Failure of Customs employee to follow procedures. The failure
of any Customs employee to follow the procedures specified in this
subpart neither creates nor confers any rights, privileges, or benefits
on any person or party.
(i) In camera inspection of records. Nothing in this subpart
authorizes Customs personnel to withhold records from a federal court,
whether civil or criminal, pursuant to its order for such records
appropriately made, for purposes of in camera inspection of the records
to determine the propriety of claimed exemption(s) from disclosure.
Sec. 103.22 Procedure in the event of a demand for Customs information
in any federal, state, or local civil proceeding or administrative
action.
(a) General prohibition against disclosure. In any federal, state,
or local civil proceeding or administrative action in which the Customs
Service is not a party, no Customs employee shall, in response to a
demand for Customs information, furnish Customs documents or testimony
as to any material contained in Customs files, any information relating
to or based upon material contained in Customs files, or any
information or material acquired as part of the performance of that
person's official duties (or because of that person's official status)
without the prior written approval of the Chief Counsel, as described
in paragraph (b) of this section.
(b) Employee notification to Counsel. Whenever a demand for
information is made upon a Customs employee, that employee shall
immediately prepare a report that specifically describes the testimony
or documents sought and notify the Assistant Chief Counsel or Associate
Chief Counsel for the area where the employee is located. If the
employee is located at Headquarters or outside of the United States,
the employee shall immediately notify the Chief Counsel. The Customs
employee shall then await instructions from the Chief Counsel
concerning the response to the demand.
(c) Requesting party's initial burden. A party seeking Customs
information shall serve on the appropriate Customs employee the demand,
a copy of the Summons and Complaint, and provide an affidavit, or, if
that is not feasible, a statement that sets forth a summary of the
documents or testimony sought and its relevance to the proceeding. Any
disclosure authorization for documents or testimony by a Customs
employee shall be limited to the scope of the demand as summarized in
such affidavit or statement. The Chief Counsel may, upon request and
for good cause shown, waive the requirements of this paragraph.
(d) Requesting party's notification requirement. The demand for
Customs information, pursuant to the provisions of paragraph (c) of
this section, shall be served at least ten (10) working days prior to
the scheduled date of the production of the documents or the taking of
testimony.
(e) Counsel notification to originating component. Upon receipt of
a proper demand for Customs information, one which complies with the
provisions of paragraph (c) of this section, if the Chief Counsel
believes that it will comply with any part of the demand, it will
immediately advise the originating component.
(f) Conditions for authorization of disclosure. The Chief Counsel,
subject to the provisions of paragraph (h) of this section, may
authorize the production of Customs documents or the appearance and
testimony of a Customs employee if:
(1) Production of the demanded documents or testimony, in the
judgment of the Chief Counsel, are appropriate under the factors
specified in Sec. 103.23(a) of this subpart; and
(2) None of the factors specified in Sec. 103.23(b) of this subpart
exist with respect to the demanded documents or testimony.
(g) Limitations on the scope of authorized disclosure. (1) The
Chief Counsel shall authorize the disclosure of Customs information by
a Customs employee without further authorization from Customs officials
whenever possible, provided that:
(i) If necessary, Counsel has consulted with the originating
component regarding disclosure of the information demanded;
(ii) There is no objection from the originating component to the
disclosure of the information demanded; and
(iii) Counsel has sought to limit the demand for information to
that which would be consistent with the factors specified in
Sec. 103.23 of this part.
(2) In the case of an objection by the originating component, the
Chief Counsel shall make the disclosure determination.
[[Page 19840]]
(h) Disclosure of commercial information. In the case of a demand
for commercial information or commercial documents concerning
importations or exportations, the Chief Counsel shall obtain the
authorization of the Assistant Commissioner (Field Operations) or his/
her designee prior to the Chief Counsel authorizing the production/
disclosure of such documents/information.
Sec. 103.23 Factors in determining whether to disclose information
pursuant to a demand.
(a) General considerations. In authorizing disclosures pursuant to
a proper demand for Customs information, one which complies with the
provisions of Sec. 103.22(c), the Chief Counsel should consider the
following factors:
(1) Whether the disclosure would be appropriate under the relevant
substantive law concerning privilege;
(2) Whether the disclosure would be appropriate under the rules of
procedure governing the case or matter in which the demand arose; and,
(3) Whether the requesting party has demonstrated that the
information requested is:
(i) Relevant and material to the action pending, based on copies of
the summons and complaint that are required to be attached to the
subpoena duces tecum or other demand;
(ii) Genuinely necessary to the proceeding, i.e., a showing of
substantial need has been made;
(iii) Unavailable from other sources; and,
(iv) Reasonable in its scope, i.e., the documents, information, or
testimony sought are described with particularity.
(4) Whether consultation with the originating component requires
that the Chief Counsel make a separate determination as to the
disclosure of the information requested.
(b) Circumstances where disclosure will not be made. Among the
demands in response to which disclosure will not be authorized by the
Chief Counsel are those demands with respect to which any of the
following factors exist:
(1) Disclosure would violate a treaty, statute (such as the Privacy
Act, 5 U.S.C. 552a, the Trade Secrets Act, 18 U.S.C. 1905, or the
income tax laws, 26 U.S.C. 6103 and 7213), or a rule of procedure, such
as the grand jury secrecy rule, Fed.R.Crim.Proc. rule 6(e) (18
U.S.C.App.);
(2) Disclosure would violate a specific regulation;
(3) Disclosure would reveal classified or confidential information;
(4) Disclosure would reveal a confidential source or informant;
(5) Disclosure would reveal investigatory records compiled for law
enforcement purposes, interfere with enforcement proceedings, or
disclose investigative techniques and procedures;
(6) Disclosure would improperly reveal confidential commercial
information without the owner's consent (e.g., entry information);
(7) Disclosure relates to documents which were produced by another
agency or entity;
(8) Disclosure would unduly interfere with the orderly conduct of
Customs business;
(9) Customs has no interest, records, or other official information
regarding the matter in which disclosure is sought;
(10) There is a failure to make proper service upon the United
States; or
(11) There is a failure to comply with federal, state, or local
rules of discovery.
Sec. 103.24 Procedure in the event a decision concerning a demand is
not made prior to the time a response to the demand is required.
If response to a demand is required before the instructions from
the Chief Counsel are received, the U.S. Attorney, his/her assistant,
or other appropriate legal representative shall be requested to appear
with the Customs employee upon whom the demand has been made. The U.S.
Attorney, his/her assistant, or other appropriate legal representative
shall furnish the court or other authority with a copy of the
regulations contained in this subpart, inform the court or other
authority that the demand has been or is being, as the case may be,
referred for the prompt consideration of the Chief Counsel, and shall
respectfully request the court or authority to stay the demand pending
receipt of the requested instructions.
Sec. 103.25 Procedure in the event of an adverse ruling.
If the court or other authority declines to stay the demand in
response to a request made in accordance with Sec. 103.24 pending
receipt of instructions, or rules that the demand must be complied with
irrespective of instructions rendered in accordance with Secs. 103.22,
103.23, 103.26, or 103.27 of this subpart not to produce the documents
or disclose the information sought, the Customs employee upon whom the
demand has been made shall, pursuant to this subpart, respectfully
decline to comply with the demand. See, United States ex rel. Touhy v.
Ragen, 340 U.S. 462 (1951).
Sec. 103.26 Procedure in the event of a demand for Customs
information in a state or local criminal proceeding.
Port directors, special agents in charge, and chiefs of field
laboratories may, in the interest of federal, state, and local law
enforcement, upon receipt of demands of state or local authorities, and
at the expense of the State, authorize employees under their
supervision to attend trials and administrative hearings on behalf of
the government in any state or local criminal case, to produce records,
and to testify as to facts coming to their knowledge in their official
capacities. However, in cases where a defendant in a state or local
criminal case demands testimony or the production of Customs documents
or information, authorization from the Chief Counsel is required as
under Sec. 103.22 of this subpart. No disclosure of information under
this section shall be made if any of the factors listed in
Sec. 103.23(b) of this subpart are present.
Sec. 103.27 Procedure in the event of a demand for Customs
information in a foreign proceeding.
(a) Required prior approval for disclosure. In any foreign
proceeding in which the Customs Service is not a party, no Customs
employee shall, in response to a demand, furnish Customs documents or
testimony as to any material contained in Customs files, any
information relating to or based upon material contained in Customs
files, or any information or material acquired as part of the
performance of that person's official duties (or because of that
person's official status) without the prior approval of the Chief
Counsel, as described in paragraph (b) of this section.
(b) Employee notification to Counsel. Whenever a demand in a
foreign proceeding is made upon a Customs employee concerning pre-
clearance activities within the territory of the foreign country, that
employee shall immediately notify the appropriate Associate Chief
Counsel responsible for the pre-clearance location. All other demands
in a foreign proceeding shall be reported by Customs employees to the
Chief Counsel. The Customs employee shall then await instructions from
the Chief Counsel concerning the response to the demand.
(c) Counsel notification to originating component. Upon receipt of
a proper demand for Customs information, one which complies with the
provisions of Sec. 103.22(c), if the Chief Counsel believes that it
will comply with any part of the demand, it will immediately advise the
originating component.
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(d) Conditions for authorization of disclosure. The Chief Counsel,
subject to the terms of paragraph (e) of this section, may authorize
the disclosure of Customs documents or the appearance and testimony of
a Customs employee if:
(1) Production of the demanded documents or testimony, in the
judgment of the Chief Counsel, are appropriate under the factors
specified in Sec. 103.23(a) of this subpart; and
(2) None of the factors specified in Sec. 103.23(b) of this subpart
exist with respect to the demanded documents or testimony.
(e) Limitations on the scope of authorized disclosure.
(1) The Chief Counsel shall authorize the disclosure of Customs
information by a Customs employee without further authorization from
Customs officials whenever possible, provided that:
(i) If necessary, Counsel has consulted with the originating
component regarding disclosure of the information demanded;
(ii) There is no objection from the originating component to the
disclosure of the information demanded; and
(iii) Counsel has sought to limit the demand for information to
that which would be consistent with the factors specified in
Sec. 103.23 of this part.
(2) In the case of an objection by the originating component, the
Chief Counsel shall make the disclosure determination.
William F. Riley,
Acting Commissioner of Customs.
Approved: December 14, 1995.
Dennis M. O'Connell,
Acting Deputy Assistant Secretary of the Treasury.
[FR Doc. 96-11006 Filed 5-2-96; 8:45 am]
BILLING CODE 4820-02-P
