On October 6, 2020, the Bureau of Industry and Security (BIS) published in the Federal Register a final rule [Docket No. 200929-0260] 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 Export Administration Regulations (EAR) . BIS is taking this action to safeguard national security information by ensuring that access to such information is controlled. BIS is adding to part 756 of the EAR new § 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.” 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.
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