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| Subpart E | Appeals Regarding Licensing Decisions | 960.18 – 960.19 | ||||||
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85 FR 30806, May 20, 2020, unless otherwise noted.
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(a) In accordance with the procedures in this subpart, a person may appeal the following adverse actions for adjudication by the Secretary:
(1) The denial of a license;
(2) The categorization of a system in a tier;
(3) The failure to make a final determination on a license grant or denial or a licensee's modification request within the timelines provided in this part;
(4) The imposition of a license condition;
(5) The denial of a licensee-requested license modification; and
(6) The replacement of an existing license with a license granted under § 960.3(a)(1) or termination of an existing license under § 960.3(a)(2).
(b) The only acceptable grounds for appeal of the actions in paragraph (a) of this section are as follows:
(1) The Secretary's action was arbitrary, capricious, or contrary to law; or
(2) The action was based on a clear factual error.
(c) No appeal is allowed to the extent that there is involved the conduct of military or foreign affairs functions.
(a) A person wishing to appeal an action specified at § 960.18(a) may do so within 21 days of the action by submitting a written request to the Secretary.
(b) The request must include a detailed explanation of the reasons for the appeal, citing one of the grounds specified in § 960.18(b).
(c) Upon receipt of a request under paragraph (a) of this section, the Secretary shall review the request to certify that it meets the requirements of this subpart and chapter 7 of title 5 of the United States Code. If it does, the Secretary shall coordinate with the appellant to schedule a hearing before a hearing officer designated by the Secretary. If the Secretary does not certify the request, the Secretary shall notify the person in writing that no appeal is allowed, and this notification shall constitute a final agency action.
(d) The hearing shall be held in a timely manner. It shall provide the appellant and the Secretary an opportunity to present evidence and arguments.
(e) Hearings may be closed to the public, and other actions taken as the Secretary deems necessary, to prevent the disclosure of any information required by law to be protected from disclosure.
(f) At the close of the hearing, the hearing officer shall recommend a decision to the Secretary addressing all factual and legal arguments.
(g) Based on the record of the hearing and the recommendation of the hearing officer, and after consultation, as appropriate, with the Secretaries of Defense and State in decisions implicating national security and international obligations and policy, respectively, the Secretary shall make a decision adopting, rejecting, or modifying the recommendation of the hearing officer. This decision constitutes a final agency action, and is subject to judicial review under chapter 7 of title 5 of the United States Code.