begins by depriving exporters of any review of adverse agency action, either judicial or administrative.
There are several exceptions, however, to the general unavailability of judicial review of Commerce actions under the act. The EAA itself provides for judicial review in certain narrow circumstances, and general principles of administrative law may allow for judicial inquiry into Commerce actions in a few instances. In general, it is far easier to obtain review of Commerce enforcement actions than of purely administrative decisions.
The 1988 amendments to the EAA created a limited opportunity for judicial review of Commerce Department civil enforcement action.5 Section 13(a) of the EAA now provides that, when Commerce brings a civil enforcement action against an exporter for violation of the EAA or the Export Administration Regulations (EAR)6 promulgated thereunder, the exporter will be entitled to notice and an opportunity to be heard before an administrative law judge (ALJ) as provided for in Sections 556 and 557 of the APA.
After the ALJ renders a decision, the secretary of commerce (or designee, usually the under secretary for export administration) will review the ALJ's findings of fact and conclusions of law. The secretary must, within 30 days of the ALJ's decision, affirm, modify, or vacate the decision. Section 13(c)(3) provides that the charged party may appeal the secretary's decision to the U.S. Court of Appeals for the District of Columbia Circuit, which "shall set aside any finding of fact for which the court finds there is not substantial evidence on the record and any conclusion of law which the court finds to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."7
There is an alternative route for judicial review if a civil enforcement action results in a penalty determination. Since penalties are not self-executing, EAA Section 11(f) allows the Commerce Department to bring an action against an exporter in a federal district court to recover unpaid civil penalties ordered in a civil enforcement proceeding. In the judicial proceeding brought under Section 11(f), the reviewing court is empowered to "determine de novo all issues necessary to the establishment of liability."8 Thus, if an exporter is assessed a penalty in a civil enforcement proceeding, the exporter will be entitled to de novo review of the enforcement judgment should the exporter choose not to pay the assessed penalty.
The Section 11(f) avenue to judicial review has existed for some years. It has become less important since the 1988 amendments to the EAA, which provide for limited judicial review of all civil enforcement decisions. In addition, Section 11(f) was never a particularly valuable means of obtaining relief from adverse agency action, because the Commerce Department could