[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.

[[Page 19841]]

    (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