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Federal Register / Vol. 86, No. 234 / Thursday, December 9, 2021 / Rules and Regulations
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356.11 Procedures for obtaining access to privileged information.

a
1
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 10.12 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

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 an application for a Protective Order for Privileged Information with the United States section of the Secretariat which, in turn, shall submit 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 an application for a Protective Order for Privileged Information with the United States section of the Secretariat which,
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in turn, shall submit the application to the Department.

5 Counsel or a professional under the direction or control of counsel. If the panel decides, in accordance with the Article 10.12 Binational Panel 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 application with the United States section of the Secretariat which, in turn, shall submit the application to the Department; and ii As soon as the deadline fixed under the Article 10.12 Binational Panel Rules for filing a Notice of Appearance in the panel review has passed, shall serve the application on each participant, other than the investigating authority, in accordance with paragraphs b4ii and iii of this section.
6 Other designated persons. If the panel decides, in accordance with the Article 10.12 Binational 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
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 B8024, U.S.
Department of Commerce, 14th Street and Constitution Avenue NW, Washington, DC 20230. These forms may be amended from time to time.
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ii Use such information solely for purposes of the proceedings under Article 10.12 of the Agreement;
iii Upon completion of the panel review, or at such earlier date as may be determined by the Department, destroy and certify to the Department the destruction of all documents released
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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

c
1
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 protective order to the United States section of the Secretariat which, in turn, shall transmit the order to the applicant and serve the order on each participant, other than the investigating authority, in accordance with 356.10b4ii and iii.

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 the protective order with the United States section of the Secretariat and shall serve the order on each participant, other than the investigating authority, in accordance with 356.10b4ii and iii.
3 Other designated persons described in paragraph a6 of this section. Upon receipt of an application for protective order under this section from a designated person described in paragraph a6 of this section, the Department shall issue a Protective Order for Privileged Information. The Department shall transmit the protective order to the United States section of the Secretariat.
d
2 Issuance of modification or revocation. If the Department modifies or revokes a Protective Order for Privileged Information pursuant to this paragraph d, the Department shall transmit the modification or Notice of Revocation to the United States section of the Secretariat which, in turn, shall transmit the document to the person to whom the protective order was issued and serve the document on each participant, other than the investigating authority, in accordance with 356.10b4ii and iii.

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