Information Sharing for Purposes of Judicial Review, 63011-63012 [2020-22077]

Agencies

• DEPARTMENT OF COMMERCE
• Bureau of Industry and Security

[Federal Register Volume 85, Number 194 (Tuesday, October 6, 2020)]
[Rules and Regulations]
[Pages 63011-63012]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22077]


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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Part 756

[Docket No. 200929-0260]
RIN 0694-AI29


Information Sharing for Purposes of Judicial Review

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Final rule.

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SUMMARY: The Bureau of Industry and Security (BIS) has the authority 
under the Export Control Reform Act of 2018 (ECRA) to enforce the 
Export Administration Regulations (EAR). This rule sets forth the 
procedure for classified national security information to be submitted 
ex parte and in camera to a court reviewing any agency action under the 
EAR. BIS is taking this action to safeguard national security 
information by ensuring that access to such information is controlled.

DATES: This rule is effective October 6, 2020.

FOR FURTHER INFORMATION CONTACT: Anthony Saler, Email: [email protected], 
Office of Chief Counsel for Industry and Security; Phone: 202-482-5301.

SUPPLEMENTARY INFORMATION: BIS is adding to part 756 of the EAR new 
Sec.  756.3, which is entitled ``Judicial Review of Agency Action.'' 
Section 4.1(e) of Executive Order (E.O.) 13526 provides that ``Persons 
authorized to disseminate classified information outside the executive 
branch shall ensure the protection of the information in a manner 
equivalent to that provided within the executive branch.'' This section 
specifies the procedure for providing a reviewing court access to 
classified information for any agency action under the EAR. By 
providing such information ex parte and in camera to a reviewing court, 
BIS can limit access to the information and prevent public disclosure 
of the information during the course of litigation.

Executive Order 13526 (75 FR 707)

    On December 29, 2009, the President issued E.O. 13526, prescribing 
a uniform system for classifying, safeguarding, and declassifying 
national security information. E.O. 13526 provides the legal basis and 
authority under which BIS issues this rule.

Rulemaking Requirements

    1. Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distribute impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This final rule has not been designated a ``significant 
regulatory action,'' and not economically significant, under section 
3(f) of Executive Order 12866. This final rule will protect national 
security information by preventing unauthorized persons from accessing 
such information in the course of judicial review of any agency action.
    2. Notwithstanding any other provision of law, no person may be 
required to respond to or be subject to a penalty for failure to comply 
with a collection of information, subject to the requirements of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless 
that collection of information displays a currently valid Office of 
Management and Budget (OMB) Control Number. This regulation does not 
involve any OMB collection of information.
    3. This rule does not contain policies with federalism implications 
as that term is defined under Executive Order 13132.
    4. This final rule is not subject to the requirements of Executive 
Order 13771 (82 FR 9339, February 3, 2017) because the subsection (b) 
requirement that agencies publish a notice of proposed rulemaking that 
includes information on the public proceedings does not apply when an 
agency for good cause finds that the notice and public procedures are 
impracticable, unnecessary, or contrary to the public interest, and the 
agency incorporates the finding (and reasons therefor) in the rule that 
is issued (5 U.S.C. 553(b)(3)(B)). In addition, the section 553(d)(3) 
requirement that publication of a rule shall be made not less than 30 
days before its effective date can be waived

[[Page 63012]]

if an agency finds there is good cause to do so.
    BIS finds good cause to issue this rule without advance notice and 
public comment because such procedures are unnecessary, see 5 U.S.C. 
553(b)(3)(B). This final rule does not affect any substantive changes 
to the EAR. It implements the provision in E.O. 13526 that executive 
branch officials who are authorized to disseminate classified 
information outside the executive branch ensure the protection of the 
information in a manner equivalent to that provided within the 
executive branch. This final rule safeguards classified information by 
preventing unauthorized persons from accessing classified information 
submitted to a court reviewing agency action under the EAR. For the 
same reasons, the Department has determined that this final rule should 
be issued without a delayed effective date pursuant to 5 U.S.C. 
553(d)(3).
    5. Because a notice of proposed rulemaking and an opportunity for 
public comment are not required to be given for this rule by 5 U.S.C. 
553, or by any other law, the analytical requirements of the Regulatory 
Flexibility Act, 5 U.S.C. 601, et seq., are not applicable. 
Accordingly, no regulatory flexibility analysis is required, and none 
has been prepared.

List of Subjects in 15 CFR Part 756

    Administrative practice and procedure, Appeals, Judicial review.

    Accordingly, part 756 of the Export Administration Regulations (15 
CFR parts 730-774) is amended as follows:

PART 756--APPEALS AND JUDICIAL REVIEW

0
1. The authority citation for part 756 is revised to read as follows:

    Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50 
U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 
783.


0
2. The heading for part 756 is revised to read as set forth above.

0
3. Section 756.1 is revised to read as follows:


Sec.  756.1   Scope.

    Section 756.2 describes the procedures applicable to appeals from 
administrative actions taken under the Export Administration Act (EAA) 
or the Export Administration Regulations (EAR). (In this part, 
references to the EAR are references to 15 CFR chapter VII, subchapter 
C). Section 756.3 describes the procedures under which the Bureau of 
Industry and Security (BIS) can safeguard national security information 
when agency action is under judicial review.

0
4. Section 756.2 is amended by redesignating paragraphs (a) through (d) 
as paragraphs (b) through (e) and adding a new paragraph (a) to read as 
follows:


Sec.  756.2  Appeal from an administrative action.

    (a) Scope. Any person directly and adversely affected by an 
administrative action taken by BIS may appeal to the Under Secretary 
for reconsideration of that administrative action. The following types 
of administrative actions are not subject to the appeals procedures 
described in this part:
    (1) Issuance, amendment, revocation, or appeal of a regulation. 
(These requests may be submitted to BIS at any time.)
    (2) Denial or probation orders, civil penalties, sanctions, or 
other actions under parts 764 and 766 of the EAR, except that, any 
appeal from an action taken under Sec.  766.25 and any appeal from an 
action taken in accordance with Sec.  766.23 to make an action taken 
under Sec.  766.25 applicable to a related person shall be subject to 
the appeals procedures described in this part.
    (3) A decision on a request to remove or modify an Entity List 
entry made pursuant to Sec.  744.16 of the EAR or a decision on a 
request to remove an Unverified List entry made pursuant to Sec.  
744.15 of the EAR.
    (4) A decision on whether License Exception Strategic Trade 
Authorization (STA) is available for ``600 series'' ``end items'' 
pursuant to Sec.  740.20(g) of the EAR.
* * * * *

0
5. Add Sec.  756.3 to read as follows:


Sec.  756.3   Judicial review of agency action.

    (a) Definition. For purposes of this section, the term agency 
action has the same meaning given such term in 5 U.S.C. 551(13), i.e., 
includes the whole or a part of an agency rule, order, license, 
sanction, relief, or the equivalent or denial thereof, or failure to 
act.
    (b) Classified national security information. In any judicial 
review of any agency action under the EAR, if such action was based in 
whole or in part on classified national security information as defined 
in Executive Order 13526 (December 29, 2009), such information may be 
submitted to the reviewing court ex parte and in camera. This paragraph 
(b) does not confer or imply any right to review in any tribunal, 
judicial or otherwise.

Matthew S. Borman,
Deputy Assistant Secretary for Export Administration.
[FR Doc. 2020-22077 Filed 10-5-20; 8:45 am]
BILLING CODE 3510-33-P