Rule2021-20526
Increasing Transparency of 232 Investigations by Requiring a Public Submission for an Application for an Investigation
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 24, 2021
Effective
September 24, 2021
Issuing agencies
Commerce DepartmentIndustry and Security Bureau
Abstract
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.
Full Text
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<title>Federal Register, Volume 86 Issue 183 (Friday, September 24, 2021)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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
<a href="/cdn-cgi/l/email-protection#b9fccbd0d2d897f4d8c0d7d8cbddf9dbd0ca97ddd6da97ded6cf"><span class="__cf_email__" data-cfemail="87c2f5eeece6a9cae6fee9e6f5e3c7e5eef4a9e3e8e4a9e0e8f1">[email protected]</span></a>.
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 <a href="https://www.reginfo.gov/public/do/PRAMain">https://www.reginfo.gov/public/do/PRAMain</a>. 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 <a href="/cdn-cgi/l/email-protection#2f6b666d7f5d40485d4e425c6f4d465c014b404c01484059"><span class="__cf_email__" data-cfemail="47030e051735282035262a3407252e346923282469202831">[email protected]</span></a>. 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
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