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Rule 70. Documents in an Action Described in 28 U.S.C. § 1581(a) or (b)

Upon service of the summons on the Secretary of the Treasury, the appropriate customs officer shall forthwith transmit the following items, if they exist, to the clerk of the court, as part of the official record of the civil action:

(1) consumption or other entry and the entry summary;

(2) commercial invoice;

(3) special customs invoice;

(4) copy of protest or petition;

(5) copy of denial, in whole or in part, of the protest or petition;

(6) importer's exhibits;

(7) official and other representative samples;

(8) any official laboratory reports; and

(9) copy of any bond relating to the entry.

If any of the items do not exist in a particular action, an affirmative statement to that effect shall be transmitted to the clerk of the court as part of the official record.

Rule 71. Documents in an Action Described in 28 U.S.C. § 1581(c) or (f)

(a) Actions Described in 28 U.S.C. § 1581(c). Unless the alternative procedure prescribed by subdivision (b) of this rule is followed, in an action described in 28 U.S.C. § 1581(c), within 40 days after the date of service of the complaint on the administering authority established to administer title VII of the Tariff Act of 1930 or the United States International Trade Commission, the administering authority or the Commission shall file with the clerk of the court the items specified in paragraphs (1) and (2) of this subdivision (a), if they exist, and the certified list specified in paragraph (3) of this subdivision (a), as part of the official record of the civil action.

(1) A copy of all information presented to or obtained by the administering authority or the Commission during the course of the administrative proceedings, including all governmental memoranda pertaining to the case and the record of ex parte meetings required to be maintained by section 777(a)(3) of the Tariff Act of 1930.

(2) A copy of the determination and the facts and conclusions of law upon which such determination was based, all transcripts or records of conferences or hearings, and all notices published in the Federal Register.

(3) A certified list of all items specified in paragraphs (1) and (2) of this subdivision (a).

(b) Alternative Procedure in an Action Described in 28 U.S.C. § 1581(c). As an alternative to the procedures prescribed in subdivision (a) of this rule in an action described in 28 U.S.C. § 1581(c):

(1) Within 40 days after the date of service of the complaint upon the administering authority or the International Trade Commission, the administering authority or the Commission may file with the clerk of the court a certified list of all items described in subdivisions (a)(1) and (a)(2) of this rule, along with a copy of the determination and the facts and conclusions of law upon which such determination was based. The Commission shall in addition file a copy of its staff report of information received in the investigation. If either agency uses this alternative procedure, it shall serve on the parties notice of that fact in conjunction with service of the certified list.

(2) The agency shall retain the remainder of the record. All parts of the record shall be a part of the record on review for all purposes.

(3) At any time, the court may order any part of the record retained by the agency to be filed. A motion by a party to have the agency file a retained part of the record shall set forth reasons why the submission of appendices required by Rule 56.2(c) is insufficient to fairly present the relevant portions of the record to the court.

(c) Confidential or Privileged Information in an Action Described in 28 U.S.C. § 1581(c).

(1) In an action described in 28 U.S.C. § 1581(c), any document, comment, or information that is accorded confidential or privileged status by the agency whose action is being contested and that is required to be filed with the clerk of the court, shall be filed under seal. Any such document, comment, or information shall be accompanied by a nonconfidential description of the nature of the material being transmitted. For the purposes of this rule and Rule 81(h), the term "confidential information" includes business proprietary information as defined in 19 U.S.C. § 1677f(c).

(2) An attorney or consultant may retain or otherwise have access to business proprietary information in the administrative record in an action described in 28 U.S.C. § 1581(c) if: (i) the attorney or consultant timely files with the court a Business Proprietary Information Certification which shall be substantially in the form set forth in Form 17 of the Appendix of Forms making each of the certifications therein required or (ii) the court issues an order granting the attorney or consultant access to such information. Upon meeting either of these requirements, the attorney or consultant shall retain or have access to business proprietary information pursuant to the terms of the Appendix on Access to Business Proprietary Information Pursuant to Rule 71(c).

(3) A Business Proprietary Information Certification for an attorney or consultant representing or retained on behalf of a party or applicant for intervention is timely if it is filed: (i) at the time the summons or application for intervention is filed, as applicable or (ii) at any other time if the party or applicant for intervention is, at the time of filing, represented by an attorney who retains or has access to business proprietary information pursuant to this rule.

(4) When an attorney or consultant has access to business proprietary information in an action pursuant to subdivision (2) and (i) the attorney terminates the attorney's appearance in the action, (ii) the consultant ceases to be retained for purposes of the action, (iii) the time period for appealing a final judgment in the action has expired without the filing of a notice of appeal or (iv) all appeals of the action have concluded, the attorney or consultant shall promptly file with the court and serve upon parties a Notice of Termination of Access to Business Proprietary Information which shall be substantially in the form set forth in Form 18 of the Appendix of Forms, certifying that the attorney or consultant meets the requirements therein. Such notice shall also be mailed to: Secretary, United States International Trade Commission, when a determination of that Commission is contested; and to APO Unit, United States Department of Commerce, when a determination of that Department is contested.

(5) If filed fewer than 31 days after the date of service of the complaint, any Certification under subdivision (2) or other request for access to business proprietary information, in addition to being served upon all parties to the action, shall be served on any interested party described in Rule 3(f) that has not become a party to the action as of the time of service.

(d) Documents in an Action Described in 28 U.S.C. § 1581(f). In an action described in 28 U.S.C. § 1581(f), within 15 days after the date of service of the summons and complaint on the administering authority or the International Trade Commission, the administering authority or the Commission shall file, with the clerk of the court, under seal, the confidential information involved, together with pertinent parts of the record, which shall be accompanied by a nonconfidential description of the nature of the information being filed, as part of the official court record of the action.

(e) Documents Filed--Copies. Certified copies of the original papers in the agency proceeding may be filed.

(f) Filing of the Record With the Clerk of the Court--What Constitutes. The filing of the record shall be as prescribed by subdivision (a) of this rule, unless the alternative procedure prescribed by subdivision (b) of this rule is followed. In the latter event, the filing of the certified list and the part of the record filed pursuant to subdivision (b) shall constitute filing of the record.

(As amended Oct. 3, 1990, eff. Jan. 1, 1991; Nov. 14, 1997, eff. Jan. 1, 1998; Jan. 25, 2000, eff. May 1, 2000.)

The court has established Security Procedures for Safeguarding Confidential Information in the Custody and Control of the Clerk. These procedures apply to confidential information or privileged information received by the court and may include: trade secrets, commercial or financial information, and information provided to the United States by foreign governments or foreign businesses or persons. These procedures do not pertain to national security information.

Section 11(a) of Security Procedures regulates the transmittal of confidential information to and from the clerk by government agencies and private parties. A copy of Section 11(a) is available upon request from, and is posted in, the Office of the Clerk.

The Tariff Act of 1930, referred to in subd. (a), is act June 17, 1930, ch. 497, 46 Stat. 590, as amended. Title VII of the Tariff Act of 1930 is classified generally to subtitle IV (§ 1671 et seq.) of chapter 4 of Title 19, Customs Duties. Section 777(a)(3) of the Tariff Act of 1930 is classified to section 1677f(a)(3) of Title 19. For complete classification of this Act to the Code, see section 1654 of Title 19 and Tables.

Rule 72. Documents in All Other Actions Based Upon the Agency Record

(a) Documents Furnished in All Other Actions Based Upon the Agency Record. Unless the alternative procedure prescribed by subdivision (b) of this rule is followed, in all actions in which judicial review is upon the basis of the record made before an agency, other than those actions described in Rules 70 and 71, within 40 days after the service of the summons and complaint upon the agency, the agency shall file with the clerk of the court the items specified in paragraphs (1), (2) and (3) of this subdivision (a), if they exist, and the certified list specified in paragraph (4) of this subdivision (a), as part of the official record of the civil action.

(1) A copy of the contested determination and the findings or report upon which such determination was based.

(2) A copy of any reported hearings or conferences conducted by the agency.

(3) Any documents, comments, or other papers filed by the public, interested parties, or governments with respect to the agency's action. The agency shall identify and file under seal any document, comment, or other information obtained on a confidential basis, including a nonconfidential description of the nature of such confidential document, comment or information.

(4) A certified list of all items specified in paragraphs (1), (2) and (3) of this subdivision (a).

(b) Stipulations. The parties may stipulate that fewer documents, comments, or other information than those specified in subdivision (a) of this rule shall be filed with the clerk of the court. The agency shall retain the remainder of the record. All parts of the record shall be part of the record on review for all purposes. Upon request to the agency by a party, or by the court, at any time, any part of the record retained by the agency shall be filed by the agency with the clerk of the court forthwith, notwithstanding any prior stipulation or designation under this subdivision.

(c) Documents Filed--Copies. Certified copies of the original papers in the agency proceeding may be filed.

Rule 73. Time for Filing Documents--Notice of Filing

(a) Time. Upon motion of a party for good cause shown, or upon its own initiative, the court may shorten or extend the times for filing prescribed in the rules of this title.

(b) Notice. The clerk shall give notice to all parties of the date on which the record is filed.