capable of being enforced. On balance, the detrimental effects on trade, U.S. competitiveness, and the economic well-being of individual U.S. companies must not exceed the benefit to the U.S. foreign policy
objectives. Export controls for foreign policy reasons are limited to a period of one year, after which they must be renewed by the president.The EAR does not authorize banning the sale of medicines or medical supplies, or donations of goods for humanitarian needs (e.g., disaster response or aid to refugees). Exports of food or agricultural commodities may be controlled, but there are limits on the extent to which the president and the Department of Commerce may do this.Short supply controlsmay be imposed where necessary to protect the domestic economy from the excessive drain of scarce materials or to reduce the serious inflationary impact of foreign demand.One important hallmark of the export regulatory system is that the decisions of the president and of the Department of Commerce, including decisions as to which items to put on the Commerce Control List and which countries to sanction, are largely exempt from the usualadministrative procedures of public comment and virtually immune from judicial review. In the past, courts have been unwilling to determine what goods or technologies should or should not be placed on the control list, what goods have potential military applications, etc.Judges have also recognized that if different courts around the country were to have different opinions as to what goods may or may not be exported without a license, the entire regulatory scheme would fall apart.Foreign Availability.Earlier in the chapter, we considered the economic impact of restricting trade for policy reasons. The regulations state that controls shall not be imposed for foreign policy or national security purposes onthe export of goods or technology that “are available without restriction from sources outside the United States in sufficient quantities and comparable in quality to those produced in the United States so as to render the controls ineffective in achieving their purposes.” The government does not have to consider foreign availability if the president determines that the absence of such controls would be detrimental to foreign policy or national security.The Export Licensing ProcessExport licenses are issued by the Bureau of Industry and Security. According to the bureau’s 2009 annual report, in that year the agency processed over 20,000 export license applications worth approximately $62 billion. The largest single approval was for a shipment of crude oil worth $32 billion. The People’s Republic of China was the destination for
the largest number of approved licenses: over 2,000 individual licenses worth more than $6.2 billion.