Increasing Transparency of 232 Investigations by Requiring a Public Submission for an Application for an Investigation, 52962-52964 [2021-20526]

Agencies

• DEPARTMENT OF COMMERCE
• Bureau of Industry and Security

[Federal Register Volume 86, Number 183 (Friday, September 24, 2021)]
[Rules and Regulations]
[Pages 52962-52964]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20526]


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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Part 705

[Docket No. 210902-0177]
RIN 0694-AI22


Increasing Transparency of 232 Investigations by Requiring a 
Public Submission for an Application for an Investigation

AGENCY: Bureau of Industry and Security, U.S. Department of Commerce.

ACTION: Final rule.

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SUMMARY: This final rule revises the regulations governing a request or 
application for an investigation under Section 232 of the Trade 
Expansion Act of 1962, as amended (``Section 232''). The changes in 
this final rule will increase the transparency of Section 232 
investigations by requiring the submission of a public version of an 
application for an investigation from an interested party. The changes 
made in this final rule still allow an interested party to submit 
classified national security information and/or business confidential 
information when submitting an application for an investigation.

DATES: This final rule is effective September 24, 2021.

FOR FURTHER INFORMATION CONTACT: For questions regarding this final 
rule, contact Erika Maynard at 202-482-5572 or via email 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    This final rule revises the requirements in Sec. Sec.  705.5 
(Request or application for an investigation) and 705.6 (Confidential 
information) of the National Security Industrial Base Regulations 
(``NSIBR'') (15 CFR parts 700 through 709) to increase the transparency 
of Section 232 investigations by requiring an application for an 
investigation by an interested party be submitted publicly. Section 
705.5 specifies the procedures for submitting a request or application 
for an investigation under Section 232. Section 705.6 specifies the 
requirements for the submission of confidential information (classified 
national security information or business confidential information) to 
the Bureau of Industry and Security (BIS) at any stage of a Section 232 
investigation and as part of an application for an investigation from 
an interested party. In order to enhance transparency and aid public 
understanding of applications for Section 232 investigations submitted 
by interested parties, as well as, when warranted, allowing public 
comments on such applications (for example, when a Federal Register 
notice is published soliciting comments on an investigation), the 
Department of Commerce has determined that interested parties applying 
for a Section 232 investigation that include business confidential 
information or classified national security information in their 
submission must simultaneously submit a public version of their 
application to BIS.
    In order to implement this change in the Section 232 investigation 
process, this final rule makes the following changes to part 705 of the 
NSIBR:
    In Sec.  705.5, this final rule revises paragraph (a) by adding a 
sentence to require that an application for an investigation from an 
interested party containing business confidential information include a 
public version of the entire application in writing accompanying their 
submission. This final rule also adds a sentence to paragraph (a) to 
specify that the application, if it includes business confidential 
information submitted in confidence pursuant to Sec.  705.6, must 
contain a public summary of the business confidential information 
providing sufficient detail to permit a reasonable understanding of the 
substance of the information, and, if summarization is not possible, 
the application must make that claim and accompany it by a full 
explanation of its basis. The revisions to paragraph (a) also include 
guidance on how to summarize

[[Page 52963]]

the information in sufficient detail to meet these additional 
requirements. This final rule adds a new cross reference to Sec.  705.6 
to alert the public that in order to submit business confidential 
information that is not for public release, the applicant must follow 
the procedures in Sec.  705.6, including by making a separate 
submission to the Department of Commerce for the public and 
confidential versions. Lastly, this final rule also adds a new note to 
paragraph (a), explaining that United States Government agencies shall 
be excluded from the requirement to include public versions of 
submissions. This rule also codifies the existing practice that an 
electronic copy of the application be submitted with the printed 
application.
    In Sec.  705.6 (Confidential information), this final rule adds 
three new paragraphs: (a)(1) (Classified national security 
information), (2) (Business confidential information) and (3) (United 
States Government communication). The revised paragraph (a) specifies 
the requirements for submissions and treatment of these three types of 
confidential information, including how submissions by the public 
should be marked and submitted when they include confidential 
information.
    The classified national security information described under 
paragraph (a)(1) of Sec.  705.6 will not be made publicly available and 
therefore does not require a public version. As a conforming change, 
this final rule revises existing text previously found in paragraph (a) 
of Sec.  705.6, which is now being moved to paragraph (a)(1) of Sec.  
705.6, regarding the identification and marking standards for national 
security information. Inadvertently, this text was not previously 
updated to reflect identification and marking standards set forth in 32 
CFR part 2001, even though BIS has been complying with the requirements 
in 32 CFR part 2001 and requiring submitters to comply with those 
requirements, as applicable, since at least 2010. These revisions 
explicitly align paragraph (a)(1) of Sec.  705.6 with the requirements 
set forth in 32 CFR part 2001. These changes will also improve public 
understanding of these provisions and clarify the requirements for 
submitting classified national security information pursuant to Sec.  
705.6. If an applicant or other party submits business confidential 
information as described in paragraph (a)(2) of Sec.  705.6, it will 
now be required to submit a public version of that information based on 
the changes this rule makes to Sec. Sec.  705.5 and 705.6. This final 
rule also adds a sentence at the end of paragraph (a)(2) of Sec.  705.6 
to specify that the public summary required under Sec.  705.5 must be 
clearly marked ``PUBLIC'' as part of the submission described under 
paragraph (a)(1) of Sec.  705.6. The classified national security 
information described under paragraph (a)(1) of Sec.  705.6 and the 
United States Government communications described under paragraph 
(a)(3) of Sec.  705.6 will not be made publicly available and therefore 
do not require a public version. Lastly, this final rule also adds a 
new paragraph (a)(3) to clarify the treatment of communication from the 
United States Government involving Section 232 investigations, 
including requests for the initiation of investigations received from 
U.S. Government agencies. This paragraph clarifies for the public that 
communication from agencies of the United States Government will 
generally not be made available to the public.

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, distributive 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 rule has been determined to be not significant for 
purposes of Executive Order 12866.
    2. The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) 
(PRA) provides that an agency generally cannot conduct or sponsor a 
collection of information, and no person is required to respond to nor 
be subject to a penalty for failure to comply with a collection of 
information, unless that collection has obtained Office of Management 
and Budget (OMB) approval and displays a currently valid OMB Control 
Number.
    This final regulation involves one collection currently approved by 
OMB with the following control number ``Request for Investigation under 
section 232 of the Trade Expansion Act'' (control number 0694-0120).
    This rule is not expected to increase the burden hours for any of 
the collections associated with this rule as minimal changes are 
anticipated. Any comments regarding this collection of information, 
including suggestions for reducing the burden, may be submitted online 
at https://www.reginfo.gov/public/do/PRAMain. Find the particular 
information collection by using the search function and entering either 
the title of the collection or the OMB Control Number.
    3. This rule does not contain policies with federalism implications 
as that term is defined in Executive Order 13132.
    4. The provisions of the Administrative Procedure Act (APA) (5 
U.S.C. 553) requiring notice of proposed rulemaking, the opportunity 
for public comment, and a delay in effective date are inapplicable 
because this regulation involves a military or foreign affairs function 
of the United States. (See 5 U.S.C. 553(a)(1)). The Section 232 
investigation process is important for identifying areas where the 
United States' defense industrial base is undermined to the detriment 
of national security. Improving efficiency and transparency of this 
process is important for those regulatory provisions to achieve their 
stated purpose.
    In addition, the Department finds that there is good cause under 5 
U.S.C. 553(b)(B) to waive the provisions of the APA requiring prior 
notice and the opportunity for public comment and under 5 U.S.C. 
553(d)(3) to waive the delay in effective date because such delays 
would be contrary to the public interest. The changes in this rule will 
increase transparency of Section 232 investigations by requiring a 
public submission for an application for an investigation from an 
interested party. These changes will improve public transparency of the 
Section 232 investigation process, while imposing only a minimal burden 
on those submitting an application for an investigation to the 
Department. Based on BIS's past experience, including in the recent 
Section 232 investigations into imports of uranium, titanium sponge, 
and mobile cranes, most of the applicants each published their own 
public versions of their applications for an investigation with 
business confidential information redacted/removed (roughly 
contemporaneously with their submission of their applications to the 
Department of Commerce). Therefore, complying with the requirement to 
include a public version should not be burdensome for the clear 
majority of applicants because they have already taken the initiative 
to share a public version. For any other applicant who does not prepare 
public versions of their submissions as a matter of course, the new 
requirements is minimal; the information required to generate the 
public version is already

[[Page 52964]]

contained within the confidential version, and applicants need only 
redact/remove confidential information that meets the criteria in 15 
CFR 705.6 and that the applicants wish to not disclose.
    Because a notice of proposed rulemaking and an opportunity for 
prior public comment are not required 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 705

    Administrative practice and procedure, Business and industry, 
Classified information, Confidential business information, Imports, 
Investigations, National security.

    For the reasons set forth in the preamble, part 705 of subchapter A 
of 15 CFR chapter VII is amended as follows:

PART 705--[AMENDED]

0
1. The authority citation for part 705 continues to read as follows:

    Authority:  Section 232 of the Trade Expansion Act of 1962, as 
amended (19 U.S.C. 1862) and Reorg. Plan No. 3 of 1979 (44 FR 69273, 
December 3, 1979).


0
2. Section 705.5 is amended by revising paragraph (a) to read as 
follows:


Sec.  705.5  Request or application for an investigation.

    (a) A request or application for an investigation shall be in 
writing. The original, 1 copy and an electronic version of the report 
in the form of a Portable Document Format (PDF) file shall be filed 
with the Director, Office of Technology Evaluation, Room H-1093, U.S. 
Department of Commerce, Washington, DC 20230, with the PDF version 
being submitted to [email protected]. An application for an 
investigation from an interested party that includes information 
submitted in confidence in accordance with the procedures of Sec.  
705.6 must also include a public version in written and electronic form 
containing all non-confidential information and public summaries of 
business confidential information as provided below. For persons 
seeking to submit business confidential information (trade secrets, 
commercial or financial information, or any other information 
considered sensitive or privileged), the public version of the 
application must contain a summary of the business confidential 
information in sufficient detail to permit a reasonable understanding 
of the substance of the information. Generally, numerical data will be 
considered adequately summarized if grouped or presented in terms of 
indices or figures within 10 percent of the actual figure. If an 
individual portion of the numerical data is voluminous (e.g., 5 pages 
of numerical data), at least one percent of the numerical data, 
representative of that portion, must be summarized. If the submitter 
claims that summarization is not possible, the claim must be 
accompanied by a full explanation of the reason(s). In order to submit 
business confidential information that is not for public release or 
classified national security information as a separate submission to 
the U.S. Department of Commerce, applicants must follow the procedures 
specified in Sec.  705.6.

    Note 1 to paragraph (a):  Requests for an investigation from 
United States Government agencies need not include a public version.

* * * * *

0
3. Section 705.6 is amended by revising paragraph (a) to read as 
follows:


Sec.  705.6  Confidential information.

    (a) This paragraph (a) specifies the requirements for submission of 
classified national security information, business confidential 
information, and the treatment of United States Government 
communications during an investigation under Section 232 of the Trade 
Expansion Act of 1962, as amended (a ``Section 232 investigation''), or 
as part of a request or application for an investigation.
    (1) Classified national security information. Any information or 
material, which the applicant or any other party desires to submit in 
confidence at any stage of the investigation or as part of an 
application for an investigation, that is classified national security 
information (``classified information'') within the meaning of 
Executive Order 13526 shall be marked and submitted to the Bureau of 
Industry and Security (BIS) in accordance with the guidelines set forth 
in 32 CFR part 2001 regarding the handling of classified information. 
Before sending classified information, the applicant or any other party 
wishing to submit classified information must contact BIS for any 
additional handling instructions or submission requirements that may be 
applicable by contacting the Director, Office of Technology Evaluation, 
Room H-1093, U.S. Department of Commerce, Washington, DC 20230. Any 
information or material submitted that is identified as classified 
information must be accompanied at the time of submission by a 
statement indicating the degree of classification, the authority for 
the classification, and the identity of the classifying entity. 
Classified national security information described in this paragraph 
(a)(1) does not require a public version.
    (2) Business confidential information. Any information or material 
submitted electronically, which the applicant or any other party 
desires to submit in confidence at any stage of the investigation or as 
part of an application for an investigation, that is business 
confidential information (trade secrets, commercial or financial 
information, or any other information considered sensitive or 
privileged) should be contained within a file beginning its name with 
the characters ``BC''. Any page containing business confidential 
information must be clearly marked ``BUSINESS CONFIDENTIAL'' on the top 
of that page, and any pages not containing confidential information 
should not be so marked. By submitting information or material 
identified as business confidential information, the applicant or other 
party represents that the information is exempted from public 
disclosure, either by the Freedom of Information Act (5 U.S.C. 552 et 
seq.) or by some other specific statutory exemption. Any request for 
business confidential treatment must be accompanied at the time of 
filing by a statement justifying non-disclosure and referring to the 
specific legal authority claimed. The public summary version required 
under Sec.  705.5 must be clearly marked ``PUBLIC''. When submitted 
electronically, the file name of the non-confidential version should 
begin with the character ``P''. The ``P'' should be followed by the 
name of the person or entity submitting the information or material. 
All filers should name their files using the name of the person or 
entity submitting the comments.
    (3) United States Government communications. Communications from 
agencies of the United States Government, including but not limited to 
requests for investigation submitted pursuant to Sec.  705.5, will 
generally not be made available to the public.
* * * * *

Matthew S. Borman,
Deputy Assistant Secretary for Export Administration.
[FR Doc. 2021-20526 Filed 9-23-21; 8:45 am]
BILLING CODE 3510-33-P