EAR

The Inherent Complexity of U.S. Export Controls

DS_DifferingThoughtsThe increasing complexity of U.S. export controls and economic sanctions laws can baffle even the most experienced practitioner.  Over the years, many critics have called for a simplification of the regulations.  However, it seems that every time the government attempts to improve the regulations, the result is more pages of exclusions, exceptions, and explanations.

Too many rules can slow or altogether stop the innovation necessary to U.S. national security and economic competition in a global market. There are also enforcement dilemmas in detecting violations of complex laws that constantly change and few truly understand.  Still, complexity is no excuse for failing to follow the law. In fact, despite the over 1,000 pages of regulations restricting U.S. exports, U.S. courts continue to uphold their validity against constitutional challenges. As noted by the Ninth Circuit in U.S. v. Zhi Yong Guo, 634 F.3d 1119, 1123 (2011):

Statutes and regulations are often complex, and necessarily so. But complexity is not the same as vagueness. The export administration regulations describe in great detail the technologies for which the government requires a license for export.”

The problem, as aptly described by the court, is that export control regulations are complicated by the very nature of what they regulate.