Comments on: Fun with Fungi http://www.exportlawblog.com/archives/63 Latest News on DDTC, BIS, OFAC, and other export law matters Fri, 10 Feb 2012 10:06:23 +0000 hourly 1 http://wordpress.org/?v=3.0 By: Mike Deal http://www.exportlawblog.com/archives/63/comment-page-1#comment-196 Mike Deal Fri, 01 Dec 2006 20:17:39 +0000 http://www.exportlawblog.com/archives/63#comment-196 This regulation, issued in final form, violates Section 13 of the EAA, which requires that all rules imposing export controls be issued in proposed form with opportunity for public comment, or in case of emergency, in interim form with opportunity for public comment. Given that the AG decision was taken last June, there's no good reason for failing to issue it in proposed form. Nor is the expiration of the EAA and reliance on IEEPA an excuse to cite the foreign affairs exception under the Administrative Procedures Act: The 1946 legislative history compiled by the Judiciary Committee as a guide to interpretation of the Administrative Procedures Act makes it clear that the foreign affairs function exclusion was intended to apply only to diplomatic and consular activity, not regulation of trade. As a result of the requirement for notice and comment rulemaking, this "final rule" is also invalid under the Regulatory Flexibility Act for failure to undertake the regulatory flexibility analysis and consultation with small entities. As a result, any adversely affected small entity may challenge the final rule. But they had best act quick, the RFA requires that an action for judicial review be brought within one year. This regulation, issued in final form, violates Section 13 of the EAA, which requires that all rules imposing export controls be issued in proposed form with opportunity for public comment, or in case of emergency, in interim form with opportunity for public comment. Given that the AG decision was taken last June, there’s no good reason for failing to issue it in proposed form. Nor is the expiration of the EAA and reliance on IEEPA an excuse to cite the foreign affairs exception under the Administrative Procedures Act: The 1946 legislative history compiled by the Judiciary Committee as a guide to interpretation of the Administrative Procedures Act makes it clear that the foreign affairs function exclusion was intended to apply only to diplomatic and consular activity, not regulation of trade.

As a result of the requirement for notice and comment rulemaking, this “final rule” is also invalid under the Regulatory Flexibility Act for failure to undertake the regulatory flexibility analysis and consultation with small entities. As a result, any adversely affected small entity may challenge the final rule. But they had best act quick, the RFA requires that an action for judicial review be brought within one year.

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