WI Proj Nuc Arms v. COMM, No. 01-5356 (D.C. Cir. 2003)

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 7, 2002 Decided January 31, 2003

No. 01-5356

Wisconsin Project on Nuclear Arms Control,

Appellant

v.

United States Department of Commerce,

Appellee

Appeal from the United States District Court

for the District of Columbia

(No. 99cv02673)

Scott L. Nelson argued the cause for appellant. With him

on the briefs was David C. Vladeck. Alan B. Morrison

entered an appearance.

Steve Frank, Attorney, U.S. Department of Justice, argued

the cause for appellee. With him on the brief were Roscoe C.

Howard, Jr., U.S. Attorney, and Leonard Schaitman, Attor-

ney.

 Eric L. Hirschhorn, Anne W. Stukes, Janice S. Amundson,

and Quentin Riegel were on the brief for amici curiae

Industry Coalition on Technology Transfer, et al., in support

of appellee.

Before: Randolph and Rogers, Circuit Judges, and

Williams, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Rogers.

Dissenting opinion filed by Circuit Judge Randolph.

Rogers, Circuit Judge: The principal question on appeal is

whether Exemption 3 of the Freedom of Information Act

("FOIA"), 5 U.S.C. s 552(b)(3) (2000), permits the Depart-

ment of Commerce to withhold from public disclosure infor-

mation contained in export license applications. This deter-

mination requires the court to address the nature of the

reference in FOIA Exemption 3 to statutes allowing docu-

ments to be withheld. Under the Export Administration Act,

50 U.S.C. app. ss 2401-20 (2000), which from time to time

has been enacted as temporary legislation, manufacturers of

dual-use commodities -- that is, products that can be used for

both military and civilian purposes -- must obtain a license

from the Department before they may export their products.

The Wisconsin Project on Nuclear Arms Control ("the Wis-

consin Project") requested access under FOIA to these ex-

port license applications. The Department responded by

providing aggregate data while declining, under Exemption 3,

to supply much of the requested specific export data. In

light of the unique statutory framework created by Congress

to retain the confidentiality of export data, we affirm the

grant of summary judgment to the Department.

I.

The Export Administration Act ("EAA") authorizes the

Department of Commerce to establish a regulatory scheme

governing the export of dual-use items. 50 U.S.C. app.

ss 2401-20. The Department accordingly promulgated the

Export Administration Regulations ("export regulations"),

which set forth exporters' obligations and specify the types of

products that are subject to the EAA's requirements. 15

C.F.R. ss 730-74 (2002). Section 12(c) of the EAA provides

that "information obtained for the purpose of consideration of,

or concerning, license applications under this Act shall be

withheld from public disclosure unless the release of such

information is determined by the Secretary [of Commerce] to

be in the national interest." 50 U.S.C. app. s 2411(c). The

Department has incorporated this confidentiality provision

into the export regulations. 15 C.F.R. pt. 736, supp. 2 (2002).

Congress originally enacted the export control system as

part of the Export Control Act of 1949, Pub. L. 81-11, s 6(c),

63 Stat. 7, 8-9, and subsequently replaced it with the Export

Administration Act of 1969, Pub. L. 91-184, s 7(c), 83 Stat.

841, 845. Congress has enacted each version of the statute as

a temporary measure, explaining that "such important regula-

tory legislation should be periodically reviewed." H.R. Rep.

No. 95-459, at 13 (1977). From time to time, however,

Congress has amended the EAA to reinstate its provisions

and on each occasion has included a sunset provision specify-

ing the date on which the EAA will expire. 50 U.S.C. app.

s 2419 (2000). The current version of the statute -- the

EAA of 1979 -- has lapsed six times, for periods ranging

from as short as five days to as long as six years. Each time

the EAA has expired, the President has promptly declared a

national emergency and has extended the regulatory scheme

by executive order. See, e.g., Exec. Order No. 13,222, 3

C.F.R. 783 (2002); Exec. Order No. 12,867, 3 C.F.R. 649

(1994); Exec. Order No. 12,730, 3 C.F.R. 305 (1991); Exec.

Order No. 12,470, 3 C.F.R. 168 (1985); Exec. Order No.

12,444, 3 C.F.R. 214 (1984); Exec. Order No. 11,940, 3 C.F.R.

150 (1977).

Originally the President relied on a provision in the Trad-

ing with the Enemy Act ("TWEA"), 50 U.S.C. app. s 5(b)

(2000), for authorization to continue the export control system

during lapses in the EAA. In 1977, however, Congress

reformed the TWEA by enacting the International Emergen-

cy Economic Powers Act ("IEEPA") and provided that the

President, upon declaration of a national emergency, may

"regulate ... prevent or prohibit ... importation or exporta-

tion of ... any property in which any foreign country or a

national thereof has any interest ... by any person, or with

respect to any property, subject to the jurisdiction of the

United States." 50 U.S.C. s 1702(a)(1) (2000). In enacting

IEEPA, Congress reaffirmed the President's regulatory con-

trol over exports by broadening the scope of the EAA to

include regulation of extraterritorial exports. Pub. L. No.

95-223, s 301, 91 Stat. 1625, 1629 (codified as amended at 50

U.S.C. app. ss 2402-03 (2000)). IEEPA's legislative history,

moreover, indicates that Congress intended the President to

use his authority under IEEPA "to continue the Export

Administration Regulations in effect" should a "lapse" occur

in the EAA. H.R. Rep. No. 95-459, at 13 (1977). (No

Conference Report exists, and the Senate Report is silent on

this point.)

The EAA of 1979 expired by its terms in 1994, and the

President, pursuant to IEEPA, again extended the export

controls by Executive Order. The President declared that

the EAA's expiration posed "an unusual and extraordinary

threat to the national security, foreign policy, and economy of

the United States" and constituted a national emergency.

Exec. Order No. 12,924, 59 Fed. Reg. 43,437 (Aug. 19, 1994),

reprinted in 50 U.S.C. s 1701 (2000). The President ordered

that the EAA's provisions "be carried out under this order so

as to continue in full force and effect...." Id.

On July 27, 1999, during the period when the EAA had

lapsed, the Wisconsin Project submitted a request under

FOIA to the Department for "records of all license applica-

tions for dual-use commodities that the U.S. Department of

Commerce approved, denied, suspended, or returned without

action, for export to the People's Republic of China (including

Hong Kong), India, Israel, Pakistan, and Russia, for the

period beginning January 1, 1995 and extending to the pres-

ent." The request stated that it included "information show-

ing the federal agencies to which each license application was

referred for review, ... each agency's recommendation on

the application referred, ... the applicant, the case number,

the date received, the final date, the consignee-end user, the

[Export Control Classification Number], the value and the

statement of end use." The Department responded by letter

dated August 24, 1999, turning over reports showing aggre-

gate data for the specified countries while stating that the

more detailed information was exempt from disclosure under

FOIA Exemption 3.

After exhausting its administrative remedies, the Wisconsin

Project sued in the district court for release of the detailed

export information. While the lawsuit was pending, Congress

reenacted the EAA, extending its expiration date from Au-

gust 20, 1994, to August 20, 2001. Pub. L. 106-508, 114 Stat.

2360 (2000) (codified at 50 U.S.C. app. s 2419). Before the

district court ruled on the Department's motion for summary

judgment, the August 2001 expiration date passed, and the

President once more extended the EAA's export controls by

Executive Order. Exec. Order No. 13,222, 3 C.F.R. 783

(2002). The district court granted the Department's motion

on September 4, 2001. Citing statements by Members of

Congress and the President, the district court concluded that

Congress's amendment of the EAA in 2000 made clear that

the EAA covered the time period when the Wisconsin Pro-

ject's request for records was pending before the Depart-

ment, and it ruled that the amended EAA did not constitute

an unconstitutional retroactive application of a new statute to

prior conduct.

II.

The purpose of the Freedom of Information Act is " 'to

pierce the veil of administrative secrecy and open agency

action to the light of public scrutiny....' " Dep't of the Air

Force v. Rose, 425 U.S. 352, 361 (1976) (citation omitted).

FOIA embodies " 'a general philosophy of full agency disclo-

sure unless information is exempted under clearly delineated

statutory language.' " Id. at 360-61 (quoting S. Rep. No. 813,

89th Cong., 1st Sess., 3 (1965)). FOIA accordingly mandates

a "strong presumption in favor of disclosure," United States

Dep't of State v. Ray, 502 U.S. 164, 173 (1991), under which

the statutory exemptions to disclosure are to be "narrowly

construed," Rose, 425 U.S. at 361. The exemptions, however,

are to be given "meaningful reach and application." John

Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989). In

reviewing de novo a grant of summary judgment for the

government in a FOIA case, the court remains particularly

"mindful that the 'burden is on the agency' to show that

requested material falls within a FOIA exemption." Petrole-

um Info. Corp. v. United States Dep't of the Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992).

Exemption 3 takes literally the requirement that disclosure

prevail absent "clearly delineated statutory language," Rose,

425 U.S. at 361. Under Exemption 3, agencies may withhold

information "specifically exempted from disclosure by statute

... provided that such statute (A) requires that the matters

be withheld from the public in such a manner as to leave no

discretion on the issue, or (B) establishes particular criteria

for withholding or refers to particular types of matters to be

withheld." 5 U.S.C. s 552(b)(3). To qualify as a withholding

provision, a statute must be "the product of congressional

appreciation of the dangers inherent in airing particular data"

and must "incorporate[ ] a formula whereby the administrator

may determine precisely whether the disclosure in any in-

stance would pose the hazard that Congress foresaw." Am.

Jewish Cong. v. Kreps, 574 F.2d 624, 628-29 (D.C. Cir. 1978).

In short, "only explicit nondisclosure statutes that evidence a

congressional determination that certain materials ought to

be kept in confidence will be sufficient to qualify under the

exemption." Irons & Sears v. Dann, 606 F.2d 1215, 1220

(D.C. Cir. 1979).

Exemption 3 has evolved from its original text to require

that Congress, not the agencies of the Executive Branch,

determine the need for nondisclosure. Congress amended

Exemption 3 in 1976 in response to the Supreme Court's

decision in Administrator, FAA v. Robertson, 422 U.S. 255,

266-67 (1975), which held that s 1104 of the Federal Aviation

Act of 1958 ("FAA"), 49 U.S.C. s 1504 (2000), constituted an

Exemption 3 withholding statute. The FAA authorized the

Administrator to withhold information from public disclosure

"when, in [the Administrator's] judgment, a disclosure of such

information ... is not required in the interest of the public."

Robertson, 422 U.S. at 257 n.4. Concerned that Robertson

"afford[ed] the FAA Administrator cart[e] blanche to with-

hold any information he please[d]," Congress overruled the

decision and narrowed Exemption 3 by adding subsections

(A) and (B). H.R. Rep. No. 94-880, pt. 1, at 23 (1976),

reprinted in 1976 U.S.C.C.A.N. 2183, 2204-05 ("H.R. Rep.

No. 94-880"). As this court has explained:

The amended text and its legislative history make

clear that Congress did not want the exemption to

be triggered by every statute that in any way gives

administrators discretion to withhold documents

from the public. On the contrary, Congress intend-

ed exemption from the FOIA to be a legislative

determination and not an administrative one.



Irons & Sears, 606 F.2d at 1220 (footnote omitted). A statute

qualifies as a withholding statute under Exemption 3, then,

where "Congress ha[s] itself made the basic decision, and

ha[s] left to the administrator only the task of implementa-

tion." Am. Jewish Cong., 574 F.2d at 630.

This court has previously considered the application of

Exemption 3 to the EAA. In 1978, in American Jewish

Congress v. Kreps, the court held that the disclosure provision

of the EAA of 1969 did not specify the types of matters to be

withheld with sufficient particularity. 574 F.2d at 630-31.

The court explained that Congress, in amending Exemption 3,

clarified that statutes that merely "set forth benchmarks for

secrecy so general as the 'interest of the public' " (such as the

statute at issue in Robertson) do not satisfy subsection (B)'s

"particular criteria" requirement. Id. at 629. "When, on the

other hand, Congress has made plain its concern with a

specific effect of publicity ... Exemption 3 is to honor that

concern." Id. Because the nondisclosure provision in the

EAA of 1969 referred only to "information obtained" under

the Act, id. at 626, the court concluded that the statutory

language was too broad to justify withholding information

under Exemption 3, id. at 631. The court, in light of the

EAA's lapse in 1976, had no occasion to reach "the thorny

question whether material that, when submitted, was 'specifi-

cally exempted from disclosure by statute' lost its exemption

once the statute went into remission." Id. (footnote omitted).

Following the court's decision in American Jewish Con-

gress, Congress enacted the EAA of 1979 and amended the

statute's nondisclosure provision. Pub. L. 96-72, s 12(c), 93

Stat. 503, 531 (1979) (codified as amended at 50 U.S.C. app.

s 2411(c)). Section 12(c) now specifies the particular types of

matters to be withheld -- namely, "information obtained for

the purpose of consideration of, or concerning, license applica-

tions under this Act...." 50 U.S.C. app. s 2411(c). Thus,

we have little difficulty concluding that section 12(c) qualifies

as an Exemption 3 statute. Times Publ'g Co. v. United

States Dep't of Commerce, 236 F.3d 1286, 1290 (11th Cir.

2001); Lessner v. United States Dep't of Commerce, 827 F.2d 1333, 1337 (9th Cir. 1987) (per curiam); Durnan v. United

States Dep't of Commerce, 777 F. Supp. 965, 966 (D.D.C.

1991). As a result, the "thorny question" to be addressed

here is whether the Department may withhold export applica-

tion data submitted during a period of lapse in the EAA, the

mirror image of the "thorny question" in American Jewish

Congress.

The Wisconsin Project contends that the Department may

not withhold the data, and the logic of its argument is simple:

Exemption 3, by its text, requires that a withholding "statute"

be in place; because the EAA was not in effect either when

the exporters submitted their application data to the Depart-

ment or when the Wisconsin Project requested that data from

the Department under FOIA, no statute exists to justify the

Department's withholding of the requested data. The Wis-

consin Project's formalistic logic, however, misses the bigger

picture. As the foregoing discussion of this circuit's prece-

dents indicates, the touchstone of the Exemption 3 inquiry is

whether the statute "is the product of congressional apprecia-

tion of the dangers inherent in airing particular data and

incorporates a formula whereby the administrator may deter-

mine precisely whether disclosure in any instance would pose

the hazard that Congress foresaw." Am. Jewish Cong., 574 F.2d at 628-29.

Congress's actions throughout the long history of the EAA

evince a clear appreciation of the dangers inherent in expos-

ing export application data to public view. Since it was first

enacted by Congress, the EAA has always contained a confi-

dentiality provision that permits the Department to withhold

export application data. See 50 U.S.C. app. s 2411(c); EAA

of 1969, Pub. L. 91-184, s 7(c), 83 Stat. 841, 845; Export

Control Act of 1949, Pub. L. 81-11, s 6(c), 63 Stat. 7, 8-9. In

1977, as Congress prepared to renew the EAA's provisions,

the Department urged Congress "to grant a blanket exemp-

tion from the provisions of the Freedom of Information Act

with respect to all information" submitted under the EAA.

H.R. Rep. No. 95-190, at 18 (1977), reprinted in 1977

U.S.C.C.A.N. 362, 379. Declining the invitation, the House

International Relations Committee explained that "[a]ny such

information which is legitimately confidential is, in the opinion

of the committee, adequately protected by the exemptions of

the Freedom Information Act and section 7(c) of the Export

Administration Act." Id. Congress reaffirmed this view two

years later when, in enacting the EAA of 1979, it replaced

section 7(c) with an amended section 12(c) in order to protect

the export data from disclosure under the court's opinion in

American Jewish Congress. Pub. L. 96-72, s 12(c), 93 Stat.

503, 531 (1979) (codified as amended at 50 U.S.C. app.

s 2411(c)).

The legislative history indicates that Congress intended to

preserve these confidentiality protections when it renewed

the EAA in November 2000. In commenting on the original

House version of the 2000 bill, Representative Gilman noted

that "the Department is ... currently defending against two

separate lawsuits seeking public release of export licensing

information," and he explained that the bill would "make sure

that [the Department] can keep the information confiden-

tial...." 146 Cong. Rec. H8022 (daily ed. Sept. 25, 2000).

Senator Gramm, commenting on the final version of the

legislation, stated that the statute "will make clear that [the

Department's] authority to apply the 12(c) confidentiality

provision of the 1979 act is to be considered as covering any

information regarding license applications obtained during

that time period, as if there had been no interruption of

authority." 146 Cong. Rec. S11365 (daily ed. Oct. 30, 2000).

The Wisconsin Project rightly notes that the legislative histo-

ry is not entirely uniform on this point. Representative

Gilman, for example, indicated that the bill's final language

left him uncertain whether the amendment would clearly

protect all information submitted between 1994 and 2000 from

disclosure. 146 Cong. Rec. H11575-76 (daily ed. Oct. 30,

2000). But regardless of whether every Member of Congress

agreed on the amendment's effect, the Members determined

that the confidentiality provision is important to the function-

ing of the export control system; otherwise they would not

have included it as part of the renewed EAA. And that

determination is the touchstone of this circuit's Exemption 3

inquiry. Irons & Sears, 606 F.2d at 1220.

The Wisconsin Project fails to acknowledge that the EAA is

not the only statute that reflects Congress's determination

regarding the confidentiality of export application informa-

tion. Congress enacted IEEPA out of concern that export

controls remain in place without interruption, and the accom-

panying Report of the House International Relations Com-

mittee included the following statement:

The committee rejected administration recommenda-

tions that it make the Export Administration Act

permanent legislation, because it feels that such

important regulatory legislation should be periodi-

cally reviewed.... Should a lapse [in the EAA]

occur, however, the authority of [IEEPA] could be

used to continue the Export Administration Regula-

tions in effect if, and to the extent that, the Presi-

dent declared a national emergency as a result of

such lapse....



H.R. Rep. No. 95-459, at 13 (1977). Although the legislative

history does not refer to the EAA's confidentiality provision,

it does evince Congress's intent to authorize the President to

preserve the operation of the export regulations promulgated

under the EAA. Moreover, it is significant for purposes of

determining legislative intent that Congress acted with the

knowledge that the EAA's export regulations had long pro-

vided for confidentiality and that the President's ongoing

practice of extending the EAA by executive order had always

included these confidentiality protections. Cf. United States

v. Midwest Oil Co., 236 U.S. 459, 469-74 (1915). Thus, in

Irons & Sears, the court was "extremely reluctant to impute

to Congress an intent to eliminate the long-standing confiden-

tiality accorded to patent applications absent rather unambig-

uous indications that this is what the Congress really want-

ed." 606 F.2d at 1220-21. A similar approach is appropriate

here in light of Congress's express desire, as evidenced by its

enactment of IEEPA and its knowledge of a pattern of

consistent lapse-filling by executive order, to hold export

application information in confidence.

Although Congress might have chosen to act in a manner

that reflects the Wisconsin Project's formalistic emphasis on

Exemption 3's requirement of a withholding statute -- by, for

example, making the EAA and section 12(c) permanent legis-

lation -- it did not, for reasons it explained. H.R. Rep. No.

95-459, at 13. Consequently, for purposes of determining

congressional intent with respect to withholding certain ex-

port data from the public, considering the EAA in conjunction

with other statutes is not inconsistent with FOIA's purpose or

Exemption 3's text. Exemption 3 contemplates withholding

pursuant to "clearly delineated statutory language," a phrase

that admits of more than a single statutory source. Through

the concerted operation of three congressional statutes -- the

EAA, the TWEA, and IEEPA -- and in light of the Depart-

ment's regulations and the President's executive orders pur-

suant to those statutes, the export control system has re-

mained in place without interruption for over fifty years. 50

U.S.C. app. s 2401-20 (2000); EAA of 1969, Pub. L. 91-184,

83 Stat. 841, 845; Export Control Act of 1949, Pub. L. 81-11,

63 Stat. 7, 8-9. During that time, the Department has always

retained the authority to withhold export license application

information from public disclosure. 50 U.S.C. app. s 2411(c);

EAA of 1969, Pub. L. 91-184, s 7(c), 83 Stat. 841, 845;

Export Control Act of 1949, Pub. L. 81-11, s 6(c), 63 Stat. 7,

8-9. The Wisconsin Project points to nothing to indicate that

this is not as the Congress intended.

While the Wisconsin Project's approach is attractive in its

simplicity, it fails to come to grips with the statutory scheme

Congress has erected for export data. The Wisconsin Project

would effectively require the court to hold that Congress

must act by a single statute if its legislation is to qualify as a

withholding statute under Exemption 3, and that the confi-

dentiality of the export data is undone by the EAA's expira-

tion notwithstanding Congress's expectations to the contrary.

In allowing the EAA to lapse from time to time, Congress has

focused on a series of difficult and controversial questions

having, so far as we are aware, nothing to do with its

expectation that export data would remain confidential. See

Dan Haendel & Amy L. Rothstein, The Shifting Focus of

Dual Use Export Controls, 25 Int'l Law. 267 (1991); Export

Controls; Views Abound, Time Runs Out, Economist, Oct. 1,

1983, at 45; Christopher Madison, Congress, Administration

Split on How to Plug Technology Leaks to Soviets, Nat'l

Journal, Feb. 19, 1983, at 380. Furthermore, the statutory

scheme for ensuring the confidentiality of certain export data

has none of the FAA's vagaries that concerned Congress, for

the statutes do not "afford [the President] cart[e] blanche to

withhold any information he pleases." H.R. Rep. No. 94-880,

pt. 1, at 23.

FOIA undoubtedly demands a liberal presumption of dis-

closure. But the Supreme Court has observed that the

"statutory exemptions are intended to have meaningful reach

and application." John Doe Agency, 493 U.S. at 152. The

Wisconsin Project's unduly strict reading of Exemption 3

strangles Congress's intent and deprives the exemption of

meaningful reach in the context of the export regulatory

scheme. In rejecting this approach, the court does not

diminish the requirement that an agency's decision not to

disclose materials under Exemption 3 must be based upon

"clearly delineated statutory language" that provides stan-

dards for withholding. In Founding Church of Scientology v.

Bell, 603 F.2d 945, 951 (D.C. Cir. 1979) (per curiam), the

Federal Bureau of Investigation invoked Exemption 3 in

withholding documents that a trial court in another proceed-

ing had sealed under Rule 26(c) of the Federal Rules of Civil

Procedure. The court held that "Exemption 3 is explicitly

confined to material exempted from disclosure 'by statute,'

and the Federal Rules of Civil Procedure simply do not

satisfy this description." Id. at 952. The court noted that

the rules "are issued by the Supreme Court under rulemak-

ing powers delegated by Congress. Although proposed rules

may be rejected by Congress, they are not affirmatively

adopted by the legislature, as all statutes must be." Id.

(footnotes omitted). Most importantly, the court observed

that "the rule's standards for issuing protective orders do not

comport with the criteria set forth in Exemption 3," because

the rule affords broad discretion to the trial court and does

not identify particular types of matters to be withheld. Id.

There is no dispute, as the Wisconsin Project points out, that

the EAA's export regulations and executive orders, like the

Federal Rules, are not congressionally enacted statutes. See

INS v. Chadha, 462 U.S. 919, 945-46 (1983). But Bell is

inapposite because the Federal Rules were originated and

written not by Congress but by the Supreme Court, whereas

the executive order here continued precisely the provision

originated and written by Congress.

Our conclusion accords with the decision of the Eleventh

Circuit Court of Appeals in Times Publishing Co. v. United

States Department of Commerce, 236 F.3d 1286, 1288 (11th

Cir. 2001). The Eleventh Circuit confronted the same ques-

tion: whether the Department may withhold export applica-

tion information under Exemption 3 even where the EAA has

expired. The court began with the principle established in

this court's precedent that, "[w]here Congress has made plain

its intention to exclude the information ... from public

disclosure under FOIA, the purpose of Exemption 3 -- to

ensure that 'basic policy decisions on governmental secrecy

are made by the Legislative rather than the Executive

branch' -- is satisfied." Id. (quoting Am. Jewish Cong., 574

F.2d at 628). The court then noted that "Congress has

renewed the confidentiality provision each time it has re-

newed the EAA" and that "Congress has authorized the

President, also by means of statute, to maintain the force of

the confidentiality provision by way of executive order." Id.

at 1291. The court thus concluded "Congress has acted

specifically to design a statutory provision to maintain confi-

dentiality." Id. It followed that "the comprehensive legisla-

tive scheme as a whole -- the confidentiality provision of the

EAA, the intended and foreseen periodic expiration of the

EAA, and the Congressional grant of power to the President

to prevent the lapse of its important provisions during such

times -- exempts from disclosure the export licensing infor-

mation requested by Appellees." Id. at 1292. We agree.

Finally, because IEEPA qualifies as an Exemption 3 stat-

ute, there can be no retroactivity problem. The Wisconsin

Project contends that even if the EAA, with its concomitant

regulations and executive orders, qualifies as an Exemption 3

withholding statute, applying the 2000 EAA amendment to

protect the Department's 1994-2000 data improperly affords

the amendment retroactive effect. But the reenactment of

the EAA confirmed, with respect to confidentiality, what has

been the case all along. Hence, contrary to the Wisconsin

Project's claim, in light of clear congressional intent, no "new

legal consequences" are being attached "to events completed

before its enactment," Landgraf v. USI Film Prods., 511 U.S. 244, 270 (1994), as would make application of the EAA

impermissibly retroactive.

Accordingly, because the Department of Commerce proper-

ly invoked Exemption 3 in withholding specific export applica-

tion data in response to the Wisconsin Project's request, and

because Congress's amendment of the EAA in 2000 did not

constitute unconstitutional retroactive legislation, we affirm

the grant of judgment to the Department.

 Randolph, Circuit Judge, dissenting: The statute has ex-

pired but its legislative history is good law. So say my

colleagues, in a most curious opinion.

Exemption 3 of the Freedom of Information Act permits

federal agencies to withhold documents "specifically exempt-

ed from disclosure by statute." 5 U.S.C. s 552(b)(3). We

can all agree that if s 12(c) of the Export Administration Act,

50 U.S.C. app. s 2411(c), were a law, it would qualify as an

Exemption 3 "statute." But the Export Act has expired. It

has no more force than the Independent Counsel statute or

the Sedition Act of 1798. It simply "no longer exists. Its life

is at an end." Greenwood v. Freight Co., 105 U.S. (15 Otto)

13, 18 (1881).

Mere "formalism," a quibble, replies the majority. The

Wisconsin Project's reading of Exemption 3 to require a

"statute," the majority explains, "strangles Congress's in-

tent." Maj. op. at 12. In other words, the Export Act may

be gone, but congressional intent lives on: Congress at one

time wanted the Commerce Department to keep the informa-

tion secret, and so it shall remain. No matter that the

Freedom of Information Act--a real law--expresses Con-

gress's intent to require a statute exempting the documents

from disclosure when they are sought or about to be released.

(The only documents sought were applications filed during a

time when the Export Act was not in effect.)

The majority also does a little, a very little, with the

International Emergency Economic Powers Act, suggesting

that it breathes life into the expired confidentiality provision

of the Export Act. To qualify for Exemption 3 treatment

under this theory, the Economic Powers Act must explicitly

refer to the Export Act, if not its confidentiality provision.

See Irons & Sears v. Dann, 606 F.2d 1215, 1220 (D.C. Cir.

1979). The Economic Powers Act does not even mention the

Export Act. Instead, it authorizes the President to "regulate

... any ... exportation of ... or transactions involving, any

property in which any foreign country or a national thereof

has any interest" during a national emergency. 50 U.S.C.

s 1702(a)(1)(B). The only indication the Economic Powers

Act revived the Export Act comes not from its text but, as

the majority imparts, maj. op. at 10-11, from a Committee

report. The trouble is the Committee report does not men-

tion keeping the expired Export Act alive; it talks only about

preserving regulations the Commerce Department issued.

Regulations are not statutes, under the Freedom of Informa-

tion Act, or otherwise. More than that, the Committee

report does not even refer to the Export Act's confidentiality

provision. The Economic Powers Act, which does not itself

exempt anything from disclosure, thus flatly fails to qualify as

an Exemption 3 "statute." See Nat'l Ass'n of Home Builders

v. Norton, 309 F.3d 26, 38 (D.C. Cir. 2002).

The majority must realize the problem, so it asserts that an

Executive Order "continued precisely" the Export Act's confi-

dentiality provision. Maj. op. at 13. It never occurred to me,

or to the Framers of the Constitution, that the Executive

could by the stroke of a pen convert expired legislation into

an existing statute. Besides, no Executive Order of any sort

can satisfy Exemption 3, even if it tracks the language of

expired legislation. See Nat'l Ass'n of Home Builders, 309 F.3d at 38. An Executive Order is not a statute. See INS v.

Chadha, 462 U.S. 919, 945-46 (1983).

Congress amended Exemption 3 in the wake of FAA v.

Robertson, 422 U.S. 255 (1975), to restrict the Executive's

discretion to withhold information; it required, as a condition

for nondisclosure, an explicit nondisclosure statute. See Am.

Jewish Cong. v. Kreps, 574 F.2d 624, 628-29, 631 (D.C. Cir.

1978). There is no such statute here. In the end all the

majority can come up with is some free-floating congressional

intent about the meaning of a statute that no longer exists.

Alice once encountered a comparable phenomenon: " 'Well!

I've often seen a cat without a grin,' thought Alice; 'but a

grin without a cat! It's the most curious thing I ever saw in

all my life!' " Lewis Carroll, Alice in Wonderland 69 (1946).

I therefore respectfully dissent.