deny the offending exporter's export privileges if a civil penalty was not paid rather than go to court to collect the penalty.9 As matters now stand, there seems to be little justification for retaining the Section 11 (f) judicial review procedure.

Finally, Section 13(d) of the EAA provides for judicial review of the issuance of a temporary denial order that is similar to that available in the Section 13(c) civil enforcement setting.10 Under Section 13(d), the exporter made subject to a temporary denial order is entitled, first, to appeal in writing to an ALJ, though in this setting a formal APA adjudication is not available. After reviewing the pleadings, the ALJ makes a recommendation as to whether the temporary denial order should stand. The secretary of commerce then may accept, reject, or modify the ALJ's recommendation. The exporter subject to the temporary denial order may appeal an adverse ruling of the secretary to the U.S. Court of Appeals for the District of Columbia Circuit. The standard of review in the D.C. Circuit here is the same ''arbitrary and capricious" standard as is mandated in the civil enforcement setting.11

Review of Nonenforcement Actions

The 1988 EAA amendments do not affect the Section 13(a) preclusion of judicial review of nonenforcement, purely administrative actions, such as the denial of an export license. It has been suggested that there is a genuine need for judicial review of the day-to-day agency decisions that have a direct impact on all exporters of controlled goods and technology.12 Review of such administrative actions currently is available only in extremely limited circumstances.

EAA Section 10(j) allows an exporter who has applied to the Commerce Department for a validated export license to file suit in federal district court to compel the agency to act on the application within the deadlines set out in EAA Section 10. However, even if an exporter is successful in compelling the agency to make a decision under Section 10(j), the agency may simply choose to deny the application or return it without action. Thus, the Section 10(j) route to judicial review does not provide an opportunity to challenge the legal correctness of the agency's decision. This section is of no value to the exporter seeking judicial review of a denial of a license application.13

"Ultra Vires" and Constitutional Challenges

There are two possible avenues to obtaining judicial review of agency action under the EAA that do not depend on the provisions of the EAA. These avenues of review should be available in the contexts of enforcement and other administrative actions of the Commerce Department. First, an aggrieved exporter may challenge an action of the agency or of the secretary

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