---
kind: "section"
citation: "19 C.F.R. § 103.23"
title: "19"
number: "103.23"
heading: "Factors in determining whether to disclose information pursuant to a demand."
url: "https://uscodex.org/cfr/19/103.23"
---

# §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 CBP information, one which complies with the provisions of [§ 103.22(c)](/cfr/19/103.22.md?p=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](/usc/5/552a.md), the Trade Secrets Act, [18 U.S.C. 1905](/usc/18/1905.md), or the income tax laws, 26 U.S.C. [6103](/usc/26/6103.md) and [7213](/usc/26/7213.md)), or a rule of procedure, such as the grand jury secrecy rule, Fed.R.Crim.Proc. [rule 6(e)](/cfr/19/6.md?p=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 CBP business;
  - (9) CBP 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.**

## Notes

### Amendments

[61 FR 19838, May 3, 1996, as amended at 78 FR 70856, Nov. 27, 2013]

### Source

Source: T.D. 96-36, 61 FR 19838, May 3, 1996, unless otherwise noted.

### Authority

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 103.31a also issued under 19 U.S.C. 2071 note, 6 U.S.C. 943, 19 U.S.C. 1415, and 49 U.S.C. 44901 note; Section 103.33 also issued under 19 U.S.C. 1628; Section 103.34 also issued under 18 U.S.C. 1905.

### Source

Source: T.D. 81-168, 46 FR 32565, June 24, 1981, unless otherwise noted.

### Amendments

[61 FR 19838, May 3, 1996, as amended at 78 FR 70856, Nov. 27, 2013]