the executive branch interest in avoiding new burdens on the Commerce Department's resources and in retaining unfettered discretion as to fundamental questions of policy. This paper concludes that the benefits of subjecting Commerce Department action under the EAA to the judicial review provisions of the APA would outweigh the possible costs, so long as review is limited by the traditional constraints on court oversight of administrative actions.



50 U.S.C. App. 2401–20 (Supp. V 1987).


5 U.S.C. 701–06 (1988).


Pub. L. No. 100–418, 102 Stat. 1361 (1988).


Export Administration Act of 1979, Pub. L. No. 96-72, § 13(a), 93 Stat. 503, 531 (codified as amended at 50 U.S.C. § 2401–20 (Supp. V 1987)). This paper refers to the EAA by its Public Law section number rather than as codified in the United States Code, because this is the convention among courts, commentators, and within the act itself.


See Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100–418, 2428, 102 Stat. 1361 (1988)(amending, inter alia, EAA 13).


15 C.F.R. 768–99 (1990).


EAA 13(c)(3). This standard of review is identical to that found in APA 706. However, under the APA judicial review provisions, appeals are to be brought in federal district court unless the enabling statute provides otherwise. See APA 703. The drafters of H.R. 4653, discussed infra, chose to retain the provision of the current EAA that places appeals from Commerce Department enforcement decisions in the Court of Appeals for the District of Columbia Circuit. See infra, pp. 331–132 (discussing H.R. 4653).


EAA 11 (f).


See Judicial Review Under the Export Administration Act: Hearings on H.R. 4653 before the Subcommittee on International Economic Policy and Trade of the House Committee on Foreign Affairs, 101st Cong., 2d Sess., at 2 (1990) (statement of Grant D. Aldonas representing the American Bar Association; hereinafter Aldonas Testimony).


The issuance of a temporary denial order arguably is more in the nature of an enforcement proceeding than a purely administrative decision, as such orders are issued when Commerce believes an EAR violation is imminent.


EAA 13(d).


See Aldonas Testimony at 5–9.


See Aldonas Testimony at 2; Aldonas and Henderson, Judicial Review Under the Export Administration Act: Section 13 and the Cost of Unreviewable Regulation, in The Law and Policy of Export Controls 123-24 (1990) (forthcoming book from the American Bar Association) [hereinafter Aldonas and Henderson].


See Aldonas and Henderson at 124-25.


848 F.2d 217 (D.C. Cir. 1988).


Dart v. United States 848 F.2d 217, 227 (D.C. Cir. 1988).


See Brief of Amicus Curiae American Bar Association at 12–20, Dart v. United States, 848 F.2d 217 (D.C. Cir. 1988) (No. 86-5715).


Dart, 848 F.2d at 221.


Id. at 223.


Commentators as well have argued that Section 13 of the EAA should not preclude judicial challenges to agency action on ultra vires grounds. See H. Moyer and L. Mabry, Export Controls as Instruments of Foreign Policy: The History, Legal Issues and Policy Lessons

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