Information Sharing for Purposes of Judicial Review

Mechanism

ECRA § 1702(d)(4) (50 U.S.C. § 4842(d)(4)) grants any person aggrieved by a BIS final agency action the right to seek judicial review in the U.S. Court of Appeals for the D.C. Circuit or the circuit in which the person resides or has a principal place of business. Where the administrative record contains classified national security information, courts historically faced a binary dilemma: disclose sensitive material in open proceedings or deny the respondent effective review.

This final rule resolves that tension by codifying an ex parte / in camera mechanism as Supplement No. 2 to 15 C.F.R. Part 764. Key structural elements:

1. Classified submission: BIS may file classified national security information directly with the reviewing court, separate from the public administrative record, in an ex parte, in camera submission. 2. Court-level handling: The court reviews the classified material under standard judicial security protocols and determines its relevance to the challenged enforcement decision without disclosing it to the respondent or counsel. 3. No substantive control changes: The rule is purely procedural — it does not expand the scope of the EAR, add licensing requirements, or list any new entities. Severity is set at 2 to reflect structural / process-infrastructure impact rather than direct trade-flow disruption.

The procedure mirrors analogous ex parte / in camera mechanisms already established in OFAC sanctions enforcement and ITAR administrative proceedings, and brings EAR enforcement into alignment with the broader US export-control adjudicative architecture implemented under ECRA.

Downstream implications

• Companies subject to BIS enforcement actions (civil penalties, denial orders, criminal

referrals under EAR Part 764) may now face classified evidence that they cannot directly examine; the rule formalises a mechanism previously handled ad hoc or not at all.

• Respondents' cleared attorneys can petition the court for access to the in camera record,

though the rule does not itself establish a cleared-counsel pathway — that remains a live procedural question for case-by-case litigation.

• The rule completes a gap in ECRA implementation: the 2018 statute created the judicial

review right but provided no procedure for handling classified supporting evidence; this rule fills that gap two years after enactment.

• Harmonises EAR enforcement adjudication with ITAR and OFAC practice, making the overall

US export-control legal architecture more internally consistent.

Open questions

• Whether courts will allow or require cleared defense counsel to access classified

submissions is unresolved and will likely be litigated case by case.

• Fifth Amendment due-process challenges to the ex parte mechanism remain possible if

classified evidence is outcome-determinative and the respondent has no realistic opportunity to rebut it.