Federal Express Corporation v. United States Department of Commerce

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 5, 2021 Decided July 8, 2022
No. 20-5337
FEDERAL EXPRESS CORPORATION,
APPELLANT
v.
UNITED STATES DEPARTMENT OF COMMERCE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-01840)
Eric D. McArthur argued the cause for appellant. With
him on the briefs was Chelsea A. Priest.
Daniel Aguilar, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Brian M. Boynton, Acting Assistant Attorney General at the
time the brief was filed, and Sharon Swingle, Attorney.
Before: HENDERSON and MILLETT, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge MILLETT.

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Circuit Judge HENDERSON concurs in the judgment.
MILLETT, Circuit Judge: The Department of Commerce
has long regulated the export of items that have sensitive
military, national security, intelligence, and foreign policy
implications. The Export Controls Act of 2018, Pub. L. No.
115-232, 132 Stat. 2209 (codified as amended at 50 U.S.C.
§§ 4801–4826), legislatively confirmed that authority and
statutorily empowered the President and the Secretary of
Commerce to control “the export, reexport, and in-country
transfer” of restricted items, as well as the “activities of United
States persons, wherever located, relating to specific” weapons
and intelligence activities. 50 U.S.C. §§ 4812–4813.
Penalties imposed by the Act apply not just to those who
directly violate its terms, but also to those who “cause or aid,
[or] abet” violations. Id. § 4819(a)(2)(B).
Some violations of the 2018 Export Controls Act and its
implementing regulations trigger liability only if the entity acts
willfully or knowingly, but others are enforced on a strict
liability basis. Federal Express Corporation—commonly
known as FedEx—challenges the Department of Commerce’s
authority to hold it strictly liable for aiding and abetting
violations of the 2018 Export Controls Act. Because the
statutory text, circuit precedent, and deference to the Executive
Branch in matters of national security and foreign affairs all
support Commerce’s interpretation, we affirm the district
court’s dismissal of FedEx’s complaint.
I
A
The 2018 Export Controls Act directs the President and the
Secretary of Commerce “to restrict the export of items” (i) that

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“would make a significant contribution to the military potential
of any other country or combination of countries which would
prove detrimental to the national security of the United
States[,]” and (ii) as “necessary to further significantly the
foreign policy of the United States or to fulfill its declared
international obligations.” 50 U.S.C. § 4811; see id. §§ 4812–
4813. In turn, the Export Administration Regulations, 15
C.F.R. Part 730, which are authorized by the 2018 Export
Controls Act, “are intended to serve the national security,
foreign policy, nonproliferation of weapons of mass
destruction, and other interests of the United States[.]” 15
C.F.R § 730.6; see 50 U.S.C. § 4812(b).
As relevant in this case, those regulations include an
“Entity List” that identifies the persons, governments, and
other entities to whom exports are prohibited, unless licensed
by the Commerce Department. 15 C.F.R. Part 744, Supp. No.
4. The regulations also include “[g]eneral [o]rders” the “terms
and conditions” of which may not be violated, including orders
that bar certain exports to some countries. 15 C.F.R.
§ 736.2(9); 15 C.F.R. Part 736, Supp. No. 1.
The 2018 Export Controls Act is only the latest version of
the federal government’s export control framework. The
Executive and Legislative Branches have long sought to
prevent exports from the United States that could assist the
Nation’s enemies. Before the 1940s, the United States
primarily restricted exports in wartime, in response to
emergency situations, or when other countries were engaged in
conflict. See IAN F. FERGUSSON, PAUL K. KERR &
CHRISTOPHER A. CASEY, CONG. RSCH. SERV., R46814, THE
U.S. EXPORT CONTROL SYSTEM AND THE EXPORT CONTROL
REFORM ACT OF 2018, at 2 (2021); 1 BRUCE E. CLUBB, UNITED
STATES FOREIGN TRADE LAW § 8.1, at 133–134 (1991).

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In 1949, Congress enacted “the first comprehensive
system of export controls ever adopted * * * in peace time.”
CLUBB, supra § 8.1.2, at 135–136 (citation omitted); see
Export Control Act of 1949, Pub. L. No. 81-11, 63 Stat. 7; JOHN
R. LIEBMAN & WILLIAM A. ROOT, UNITED STATES EXPORT
CONTROLS xxx–xxxi (2d ed. 1989). Since then, the statutory
scheme has been repeatedly updated, refined, and reauthorized.
See, e.g., Export Administration Act of 1969, Pub. L. No. 91-
184, 83 Stat. 841; Export Administration Act of 1979, Pub. L.
No. 96-72, 93 Stat. 503.
Pursuant to those statutes, the Department of Commerce
developed the Export Administration Regulations. See 15
C.F.R. § 730.2. Before the 2018 Export Controls Act,
Congress’s export administration laws were not permanent.
See H.R. REP. NO. 115-784, at 51–52 (2018). The Export
Administration Regulations were sustained by Congress’s
temporary legislation. Whenever those statutes lapsed,
Presidential executive orders issued under the International
Emergency Economic Powers Act, Pub. L. No. 95-223, 91 Stat.
1626 (1977) (codified at 50 U.S.C. §§ 1701–1706), “directed
and authorized the continuation in force” of the Export
Administration Regulations. 15 C.F.R. § 730.2.
When enacting the 2018 Export Controls Act, Congress
statutorily endorsed those preexisting regulations, explicitly
preserving in law “[a]ll delegations, rules, regulations, orders,
determinations, licenses, or other forms of administrative
action that have been made, issued, conducted, or allowed to
become effective under the Export Administration Act of 1979
* * * or the Export Administration Regulations” that were “in
effect as of August 13, 2018[.]” 50 U.S.C. § 4826(a).
Congress specified that these rules and regulations were to
“continue in effect according to their terms until modified,

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superseded, set aside, or revoked under the authority of” the
2018 Export Controls Act. Id.
This case concerns the specific statutory and regulatory
provisions addressing civil aiding or abetting violations of the
2018 Export Controls Act. The Act makes it “unlawful for a
person to violate, attempt to violate, conspire to violate, or
cause a violation of [the Act] or of any regulation, order,
license, or other authorization issued under [the Act], including
any of the unlawful acts described in paragraph (2).” 50
U.S.C. § 4819(a)(1).
“Paragraph (2)” in turn provides an extensive list of
“unlawful acts” that includes, as relevant here that “[n]o person
may cause or aid, abet, counsel, command, induce, procure,
permit, or approve the doing of any act prohibited, or the
omission of any act required by [the 2018 Export Controls
Act], the Export Administration Regulations, or any order,
license or authorization issued thereunder.” 50 U.S.C.
§ 4819(a)(2).
The 2018 Export Controls Act prescribes criminal
penalties for one “who willfully commits, willfully attempts to
commit, or willfully conspires to commit, or aids and abets in
the commission of, an unlawful act described in [Section
4819(a).]” 50 U.S.C. § 4819(b).
The Act separately authorizes the Secretary of Commerce
to impose “civil penalties on a person for each violation by that
person of [the 2018 Export Controls Act] or any regulation,
order, or license issued under [the Act.]” 50 U.S.C. § 4819(c).
The Export Administration Regulations largely mirror
these statutory provisions, stating that “[n]o person may cause
or aid, abet, counsel, command, induce, procure, permit, or

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approve the doing of any act prohibited, or the omission of any
act required, by [the 2018 Export Controls Act], the [Export
Administration Regulations], or any order, license or
authorization issued thereunder.” 15 C.F.R. § 764.2(b).
The regulations delineate a variety of sanctions for
violating these provisions, including administrative sanctions,
civil penalties, denial of export privileges, and criminal
punishment. 15 C.F.R. § 764.3. The regulations specify that
criminal sanctions are authorized to punish one who “willfully
commits, willfully attempts to commit, or willfully conspires
to commit, or aids and abets in the commission of, an unlawful
act described in 50 U.S.C. [§] 4819(a)[.]” 15 C.F.R.
§ 764.3(b).
The regulatory provision that makes it unlawful to “cause
or aid, [or] abet” an export control violation, 15 C.F.R.
§ 764.2(b), predates the 2018 Export Controls Act. A version
of this regulation existed as early as 1954. At that time, the
regulation made it unlawful to “knowingly” “cause, or aid,
abet, counsel, command, induce, procure, or permit the doing
of any act prohibited by, or the omission of any act required by
the export control law or any proclamation, order, rule,
regulation, or license issued thereunder.” Miscellaneous
Amendments, 19 Fed. Reg. 89, 92 (Jan. 7, 1954); see also 15
C.F.R. § 381.2 (1956). In the 1980s, the Department of
Commerce removed the word “knowingly” from the provision.
15 C.F.R. § 387.2 (1981). The provision has remained largely
unchanged since that time and was “continue[d] in effect”
when the 2018 Export Controls Act was enacted. 50 U.S.C.
§ 4826(a).

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B
FedEx is an international express courier that offers
expedited and time-definite delivery of approximately 15
million packages daily to more than 220 countries and
territories.
In 2011, the Department of Commerce’s Bureau of
Industry and Security (“Bureau”) sent FedEx a “charging
letter” alleging that FedEx had violated 15 C.F.R. § 764.2(b)
six times. Specifically, the letter asserted that FedEx “caused,
aided or abetted” acts “prohibited by the [Export
Administration] Regulations” when it transported items to
Syria, the United Arab Emirates, and China without the
required licenses. Joint Appendix (“J.A.”) 74–79. In
sending items to Syria and the United Arab Emirates, FedEx
had allegedly violated two “general orders” promulgated under
the Export Administration Regulations. 15 C.F.R. Part 736,
Supp. No. 1. FedEx and the Bureau reached a settlement
agreement under which FedEx paid a $370,000 civil penalty.
In 2017, the Bureau sent another charging letter to FedEx,
this time alleging that FedEx had committed 53 violations of
15 C.F.R. § 764.2(b). Specifically, the Bureau accused FedEx
of “caus[ing], aid[ing] or abett[ing]” a violation of the 2018
Export Controls Act and its implementing regulations when it
“facilitated the export” of a variety of civil aircraft parts and
equipment either to France or Pakistan without the required
licenses. J.A. 51–52 (citing 15 C.F.R. § 764.2(b)). The
charging letter asserted that the items were sent either to
Aerotechnic France SAS, a company that the Bureau
previously determined had “engaged in actions that could
enhance the military capability of Iran,” or to the Pakistan
Institute for Nuclear Science and Technology, a subordinate

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entity of the Pakistan Atomic Energy Commission. J.A. 52
(citation omitted). Aerotechnic France SAS and the Pakistan
Institute for Nuclear Science and Technology had both been on
the Bureau’s Entity List for years.1 The Bureau alleged that
FedEx “knew or should have known” that “its screening
software did not flag a transaction unless the name of the
recipient/consignee exactly matched the full name of the entity
as found on the Entity List, even where the address information
was identical or nearly identical.” J.A. 53.
FedEx settled again, this time for a civil penalty of
$500,000. FedEx also agreed, among other stipulations, to
“complete external audits of its export controls compliance
program covering FedEx fiscal years 2017–2020[.]” J.A. 40.
Under both settlements, FedEx agreed to “waive[] all rights to
further procedural steps in this matter” including any right to
“seek judicial review or otherwise contest the validity of this
Agreement[.]” J.A. 48, 71.
C
About a year later, FedEx filed a complaint in federal
district court against the Department of Commerce, the Bureau
of Industry and Security, as well as the Secretary of Commerce
and the Assistant Secretary for Industry and Analysis in their
official capacities (collectively, “Commerce”). FedEx’s
operative complaint challenges Commerce’s strict liability
interpretation of 15 C.F.R. § 764.2(b) as ultra vires—that is, in
1 See 15 C.F.R. Part 744, Supp. No. 4; India and Pakistan
Sanctions and Other Measures, 63 Fed. Reg. 64,322, 64,337 (Nov.
19, 1998) (adding the Pakistan Institute for Nuclear Science and
Technology); Addition of Certain Persons on the Entity List:
Addition of Persons Acting Contrary to the National Security or
Foreign Policy Interests of the United States, 76 Fed. Reg. 37,632,
37,632 (June 28, 2011) (adding Aerotechnic France SAS).

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clear excess of statutory authority—and as violating the
substantive protections of the Fifth Amendment’s Due Process
Clause.
The district court granted Commerce’s motion to dismiss
the complaint. With respect to the due process claim, the
district court held that Commerce’s “strict-liability regime to
prevent companies from aiding and abetting export violations
that would jeopardize the country’s national security or foreign
policy interests” survived rational basis review. Federal
Express Corp. v. Department of Com., 486 F. Supp. 3d 69, 76
(D.D.C. 2020).
The district court also dismissed FedEx’s ultra vires
challenge. The court reasoned that neither the plain text of the
Department of Commerce’s regulation, 15 C.F.R. § 764.2(b),
nor Commerce’s interpretation of its regulation were ultra vires
because interpreting the regulation to impose strict liability for
aiding or abetting did not “patently misconstrue[] [the] statute,
disregard[] a specific and unambiguous statutory directive, or
violate[] a specific command of [the] statute.” Federal
Express Corp., 486 F. Supp. 3d at 81 (citation omitted).
FedEx timely appeals only the dismissal of its ultra vires
claim. FedEx Opening Br. 11 n.4.
II
We have jurisdiction under 28 U.S.C. § 1291. We review
de novo the district court’s dismissal of a complaint for failure
to state a claim, FED. R. CIV. P. 12(b)(6), “accepting the factual
allegations made in the complaint as true and giving [the]
plaintiff[] the benefit of all inferences that can reasonably be
drawn from [its] allegations[,]” Emory v. United Air Lines, Inc.,
720 F.3d 915, 921 (D.C. Cir. 2013) (quoting Wagener v. SBC

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Pension Benefit Plan-Non Bargained Program, 407 F.3d 395,
401 (D.C. Cir. 2005)).
III
A
FedEx is unable to bring a traditional Administrative
Procedure Act (“APA”) challenge to Commerce’s
interpretation of its regulation because the 2018 Export
Controls Act provides that the “functions” the Department of
Commerce exercises under that Act “shall not be subject to”
the judicial review sections of the APA. 50 U.S.C. § 4821(a).
For that reason, FedEx seeks nonstatutory review of
Commerce’s strict-liability standard on the ground that the
agency has acted patently in excess of its statutory authority.
Long before the APA, the “main weapon in the arsenal for
attacking federal administrative action” was a suit in equity
seeking injunctive relief. KENNETH CULP DAVIS & RICHARD
J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 18.4, at 179
(3d ed. 1994); see Dart v. United States, 848 F.2d 217, 224
(D.C. Cir. 1988); Griffith v. FLRA, 842 F.2d 487, 492 (D.C.
Cir. 1988); see, e.g., American Sch. of Magnetic Healing v.
McAnnulty, 187 U.S. 94 (1902) (commonly cited as the
wellspring of nonstatutory review of agency action).
Such review, commonly known as an ultra vires claim, is
available where (i) there is no express statutory preclusion of
all judicial review; (ii) “there is no alternative procedure for
review of the statutory claim; and (iii) the agency plainly acts
in excess of its delegated powers and contrary to a specific
prohibition in the statute that is clear and mandatory[.]” Nyunt
v. Chairman, Broadcasting Board of Governors, 589 F.3d 445,
449 (D.C. Cir. 2009) (internal quotation marks and citation

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omitted); see also DCH Reg’l Med. Ctr. v. Azar, 925 F.3d 503,
509 (D.C. Cir. 2019).
Judicial review for ultra vires agency action “rests on the
longstanding principle that if an agency action is ‘unauthorized
by the statute under which [the agency] assumes to act,’ the
agency has ‘violate[d] the law’ and ‘the courts generally have
jurisdiction to grant relief.’” National Ass’n of Postal
Supervisors v. USPS, 26 F.4th 960, 970 (D.C. Cir. 2022)
(quoting McAnnulty, 187 U.S. at 108). This nonstatutory form
of judicial review survived the enactment of the APA. Dart,
848 F.2d at 224 (“Nothing in the subsequent enactment of the
APA altered the McAnnulty doctrine of review.”); see, e.g.,
Leedom v. Kyne, 358 U.S. 184, 188 (1958).
In Leedom v. Kyne, the Supreme Court explained that an
ultra vires challenge is distinct from statutory review of an
agency action taken “within [the agency’s] jurisdiction,” and is
available only for the narrow purpose of obtaining injunctive
relief against agency action taken “in excess of its delegated
powers and contrary to a specific prohibition” in the law. 358
U.S. at 188. In assessing an ultra vires claim, we apply that
exacting standard of review in analyzing both “the extent of the
agency’s delegated authority” and “whether the agency has
acted within that authority.” National Ass’n of Postal
Supervisors, 26 F.4th at 970 (citation omitted).
As a result, ultra vires claims are confined to “extreme”
agency error where the agency has “stepped so plainly beyond
the bounds of [its statutory authority], or acted so clearly in
defiance of it, as to warrant the immediate intervention of an
equity court[.]” Griffith, 842 F.2d at 493 (quoting Local 130,
Int’l Union of Elec., Radio & Mach. Workers v. McCulloch,
345 F.2d 90, 95 (D.C. Cir. 1965)). Only error that is “patently
a misconstruction of the Act,” that “disregard[s] a specific and

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unambiguous statutory directive,” or that “violate[s] some
specific command of a statute” will support relief. Id.
(internal quotation marks and citations omitted); see National
Ass’n of Postal Supervisors, 26 F.4th at 971 (The “challenged
[agency] action must ‘contravene[] a clear and specific
statutory mandate’ to be susceptible to ultra vires review.”)
(citation omitted).
B
The parties no longer contest that the first two prongs of
an ultra vires claim are met here because the 2018 Export
Controls Act does not expressly preclude all judicial review,
and no alternative procedure for review of FedEx’s claim
exists. FedEx Opening Br. 16–17; FedEx Reply Br. 23; Gov’t
Br. 18; see Nyunt, 589 F.3d at 449. The dispute on appeal
centers on whether FedEx has demonstrated the type of
extreme agency error needed to demonstrate that Commerce
acted ultra vires.
On that question, FedEx disagrees that its claim is subject
to exacting review, arguing that it need only that show that
Commerce “has exceeded its statutory authority” under a
routinely deferential standard apparently akin to that of
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 842–844 (1984). FedEx Opening Br. 16–17.
FedEx argues that the requirement of showing a “patent
violation of agency authority,” FedEx Opening Br. at 17
(quoting American Clinical Laboratory Ass’n v. Azar, 931 F.3d
1195, 1208 (D.C. Cir. 2019)), applies only when Congress is
understood generally to have precluded all statutory judicial
review, id. at 16 n.5 (citing American Hosp. Ass’n v. Azar, 964
F.3d 1230, 1238 (D.C. Cir. 2020)). When, as here, Congress
“withdraws only the APA cause of action” and does not

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reference other forms of judicial review, FedEx says that it
need only show that the agency crossed statutory lines. FedEx
Opening Br. 16 n.5.
FedEx’s effort to dilute ultra vires review to the functional
equivalent of the very APA action that Congress prohibited
defies precedent and logic.
To start, the Supreme Court and this court have long
required in ultra vires cases that the agency action go beyond
mere legal or factual error and amount to a “clear departure by
the [agency] from its statutory mandate” or be “blatantly
lawless” agency action. Oestereich v. Selective Serv. Sys. Loc.
Board No. 11, 393 U.S. 233, 238 (1968). Said another way,
“[g]arden-variety errors of law or fact are not enough.”
Griffith, 842 F.2d at 493; see Local 130, IUERMW, 345 F.2d at
95; National Air Traffic Controllers Ass’n v. Federal Service
Impasses Panel, 437 F.3d 1256, 1263 (D.C. Cir. 2006) (To
succeed, an ultra vires claimant must show that the agency “has
acted ‘in excess of its delegated powers and contrary to a
specific prohibition’ which ‘is clear and mandatory’”) (quoting
Kyne, 358 U.S. at 188); Florida Health Sciences Ctr. v.
Secretary of Health & Hum. Servs., 830 F.3d 515, 522 (D.C.
Cir. 2016) (“To challenge agency action on the ground that it
is ultra vires, [plaintiff] must show a ‘patent violation of
agency authority.’”) (citation omitted).
An ultra vires challenge, in other words, is “essentially a
Hail Mary pass[.]” Nyunt, 589 F.3d at 449. The agency
overstep must be “plain on the record and on the face of the
[statute.]” Oestereich, 393 U.S. at 238 n.7. That demanding
standard is necessary because ultra vires review seeks the
intervention of an equity court where Congress has not
authorized statutory judicial review, on the assumption that
Congress has not “barred judicial comparison of agency action

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with plain statutory commands[.]” Dart, 848 F.2d at 222
(citation omitted); see Local 130, IUERMW, 345 F.2d at 95
(“Infirmities short of” stepping “plainly beyond the bounds” of
a statute are insufficient in large part because our review of
agency action is not “in [a] manner [expressly] provided by
Congress.”).
Because nonstatutory review of agency action rests on that
narrow presumption, challengers must show more than the type
of routine error in “statutory interpretation or challenged
findings of fact” that would apply if Congress had allowed
APA review. Local 130, IUERMW, 345 F.2d at 95; see
National Ass’n of Postal Supervisors, 26 F.4th at 971, 975
(ultra vires review looks first at whether the agency
contravened a “clear and specific statutory mandate,” and then,
if applicable, whether the agency’s statutory construction is
“utterly unreasonable”). In other words, ultra vires claimants
must demonstrate that the agency has plainly and openly
crossed a congressionally drawn line in the sand.
That same demanding standard for judicial intervention
applies even when Congress has only withdrawn APA review,
rather than cut off all statutory judicial review. In Nyunt, after
concluding that judicial review under the APA was unavailable
but that not all avenues of statutory review were foreclosed as
a general matter, this court nevertheless applied a “very
stringent standard,” requiring the plaintiffs to demonstrate “the
kind of ‘extreme’ error that would justify reliance on the
Leedom v. Kyne exception.” 589 F.3d at 449; see Mittleman
v. Postal Regul. Comm’n, 757 F.3d 300, 307 (D.C. Cir. 2014)
(emphasizing that ultra vires review is “quite narrow” in case
where statute withheld only APA review). To that same point,
in Trudeau v. FTC we explained that if the plaintiff’s claims
would have failed under the APA, then those same claims
necessarily “could not succeed under” ultra vires review,

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which has an even “narrow[er] scope[.]” 456 F.3d 178, 190
(D.C. Cir. 2006).
FedEx relies on several cases to back up its claim for
gentler review of ultra vires challenges when, as here,
Congress has withdrawn only APA review. None of the cases
supports that approach.
First, contrary to FedEx’s reading, Aid Association for
Lutherans v. United States Postal Service actually points to a
demanding standard of review by drawing heavily on
McAnnulty, Kyne, and their progeny when determining the
availability of ultra vires relief. 321 F.3d 1166, 1173 (D.C.
Cir. 2003).
Even more to the point, that case expressly did not address
whether there is a delta between ultra vires review and less-
exacting review under Chevron. Instead of parsing the
differences in the two standards, the Aid Association court
ruled instead that the question was “abstractly interesting, but
ultimately unimportant in the resolution of this matter” because
the claim failed under either standard. 321 F.3d at 1174; see
id. at 1175 (“This being the case, the regulations cannot survive
judicial review under National Association or Chevron.”).
Second, neither does Northern Air Cargo v. United States
Postal Service support a diluted ultra vires standard. 674 F.3d
852 (D.C. Cir. 2012). We had no occasion even to decide the
question in that case because the agency had “never actually
advanced any interpretation, let alone an authoritative one[.]”
Id. at 860. The most that Northern Air Cargo says is that the
“pre-existing administrative law requirement[]” that agency
action “can be upheld only on the basis of contemporaneous
justification by the agency itself” applies to ultra vires suits.
Id. (citing SEC v. Chenery Corp., 318 U.S. 80 (1943)).

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Third, American Hospital Association v. Azar is of no help
to FedEx because it addressed a different question. 964 F.3d
1230. The issue in American Hospital Association was
whether a change in hospital reimbursement rates under the
Medicare program was the type of agency action that fell
within a statutory prohibition on all judicial review. Id. at
1337–1238. The hospitals in that case argued that the
reimbursement did not fall within the judicial review bar, and
so they sought review directly under the statute. They did not
seek nonstatutory review like FedEx does. See id. at 1239
(court noting that it is “not asked to remedy a ‘statutory
violation[] even when a statute precludes review’”) (citation
omitted). The government did suggest that ultra vires review
applied, but this court declined to reach the question because it
first had to determine the scope of the statutory “bar on judicial
review.” Id. at 1240.2
Finally, this court has recently reconfirmed that ultra vires
review imposes the same demanding standard in all cases,
including those where only APA review is foreclosed.
National Ass’n of Postal Supervisors, 26 F.4th at 966 (citing
2 In one sentence in a footnote in FedEx’s opening brief,
FedEx claims that Commerce did not exercise a “function[]” under
the Export Administration Regulations because it acted ultra vires,
and thus the bar on APA review does not apply. 50 U.S.C.
§ 4821(a) (“Except as provided * * * the functions exercised under
[the 2018 Export Controls Act] shall not be subject to” judicial
review under the APA.); FedEx Opening Br. 16–17 n.5. This
argument merely repackages FedEx’s ultra vires claim and is unlike
the statutory interpretation argument made in American Hospital
Association because FedEx’s argument does not turn on the meaning
of “functions[.]” 50 U.S.C. § 4821(a). Anyhow, an inchoate
argument made only in a footnote is forfeited. CTS Corp. v. EPA,
759 F.3d 52, 64 (D.C. Cir. 2014).

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Mittleman, 757 F.3d at 307); see Mittleman, 757 F.3d at 305
(explaining that the relevant statute precludes judicial review
under the APA). To be ruled ultra vires, the challenged action
must “contravene[] a clear and specific statutory mandate[,]”
National Ass’n of Postal Supervisors, 26 F.4th at 971 (citation
omitted), and the statutory construction adopted by an agency
will be held “impermissible” only if it is “utterly
unreasonable,” id. at 975 (quoting Aid Ass’n for Lutherans, 321
F.3d at 1174); see also id. at 971 (applying Aid Ass’n for
Lutherans, Northern Air Cargo, Nyunt, and DCH Regional
Medical Center). We reemphasize that rigorous standard for
ultra vires review today, even in cases in which Congress has
only expressly withdrawn APA review.
IV
With the standard for FedEx’s ultra vires claim settled, we
turn to the merits. FedEx challenges Commerce’s
interpretation of its causing, aiding, or abetting regulation to
apply strict liability, 15 C.F.R. § 764.2(b), as plainly exceeding
its regulatory authority under the 2018 Export Controls Act.
FedEx, however, has failed to demonstrate the type of blatant
error necessary for an ultra vires challenge to succeed.
A
We note at the outset that the mens-rea-omitting text of
Commerce’s cause, aid, or abet regulation falls squarely within
its statutory authority. Section 4819 of the 2018 Export
Controls Act expressly provides that “[n]o person may cause
or aid, abet, counsel, command, induce, procure, permit, or
approve the doing of any act prohibited, or the omission of any
act required by” export control laws. 50 U.S.C.
§ 4819(a)(2)(B). No mens rea is prescribed.

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Commerce’s regulation uses identical wording, specifying
that “[n]o person may cause or aid, abet, counsel, command,
induce, procure, permit, or approve the doing of any act
prohibited, or the omission of any act required” by export
control laws. 15 C.F.R. § 764.2(b). Also like the statute, the
regulation does not specify a mens rea for violation of its
provisions. A regulation that so faithfully hews to the statute
it enforces is the antithesis of a facially ultra vires regulation.
FedEx nevertheless argues that Commerce has crossed the
ultra vires line by interpreting that regulation “to hold common
carriers strictly liable for aiding and abetting and causing
export violations[.]” FedEx Opening Br. 41. That argument
fails for three reasons.
1
The first barrier to FedEx’s ultra vires challenge is that
Commerce’s interpretation of its regulation to allow for strict
liability in civil enforcement actions does not contravene any
clear statutory command.
As noted, the 2018 Export Controls Act itself omits any
mens rea requirement from its civil aiding or abetting
prohibition. 50 U.S.C. § 4819(a)(2)(B). That omission
stands in sharp contrast to a neighboring provision in which
Congress specified the mental state required for a violation.
Section 4819(b) allows the imposition of criminal penalties
only if the person “willfully * * * aids and abets in the
commission of[] an unlawful act[.]” 50 U.S.C. § 4819(b).
Then, in the succeeding subsection addressing civil penalties,
the statute is again silent about mens rea. Id. § 4819(c). The
Act’s repeated omission of any state of mind requirement for
civil liability and penalties weighs mightily against FedEx’s

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argument that the statute’s civil aiding and abetting prohibition
plainly requires a culpable mind.
Congress similarly picked and chose when to prescribe
and when to omit a specific state of mind requirement for other
violations of the 2018 Export Controls Act. For example, the
Act specifies that “[n]o person may engage in any transaction
or take any other action with intent to evade the provisions of”
the Export Controls Act of 2018, “the Export Administration
Regulations, or any order, license, or authorization issued
thereunder.” 50 U.S.C. § 4819(a)(2)(G). The statute
likewise specifies that “[n]o person may order, buy, remove,
conceal, store, use, sell, loan, dispose of, transfer, transport,
finance, forward, or otherwise service * * * any item exported
or to be exported from the United States, or that is otherwise
subject to the Export Administration Regulations, with
knowledge that a violation of” export control laws “has
occurred, is about to occur, or is intended to occur in
connection with the item[.]” Id. § 4819(a)(2)(E). Both of
these provisions clearly contain a mens rea requirement.
Congress’s silence as to the state of mind required for a
violation of still other provisions, including the neighboring
Section 4819(a)(2)(b), indicates that Congress chose not to
foreclose a lesser mens rea or strict liability standard there.
After all, when Congress “includes particular language in one
section of a statute but omits it in another section of the same
Act,” courts presume that Congress knew what it was doing
and meant for the omission to have significance. Bates v.
United States, 522 U.S. 23, 29–30 (1997) (quoting Russello v.
United States, 464 U.S. 16, 23 (1983)) (applying that same
selective-use principle to support the conclusion that a criminal
offense did not include “an ‘intent to defraud’ state of mind
requirement”); accord Dean v. United States, 556 U.S. 568,
573 (2009) (applying selective-use principle in concluding that

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a statutory sentencing enhancement for a criminal offense did
not include an intent requirement).
Closing the door even more firmly on FedEx’s ultra vires
argument is Congress’s express delegation to Commerce to
provide by regulation “standards for establishing levels of civil
penalty” under Section 4819(c) “based upon factors such as
* * * the culpability of the violator[.]” 50 U.S.C.
§ 4819(c)(3). Congress, in other words, left it to Commerce
to determine the role of “culpability” in the assessment of civil
penalties. Culpability, of course, can range from a non-
culpable mind to intentional violations, leaving no room for
FedEx’s insistence that Congress required a specific
knowledge mens rea.3
Lastly, it bears noting that the omission of a mens rea
requirement from the regulation is longstanding. Commerce
removed a requirement that the violator act “knowingly” three
decades ago, and has long interpreted the regulation to impose
3 Exercising the discretion Congress afforded, Commerce has
factored the culpability of the actor into the penalty, rather than
liability, calculus. Under the regulations, the Bureau will “consider
some or all” of a variety of “aggravating factors” when “determining
the appropriate sanctions in administrative cases, including the
appropriate amount of a civil monetary penalty[.]” 15 C.F.R. Part
766, Supp. No. 1. Those aggravating factors include: “apparent
willfulness or recklessness[,]” “pattern or practice of conduct[,]” and
“notice” that the conduct “constituted a violation of U.S. law[.]” Id.
The regulations observe that “[m]any apparent violations are isolated
occurrences, the result of a good-faith misinterpretation, or involve
no more than simple negligence or carelessness. In such instances,
absent the presence of aggravating factors, the matter frequently may
be addressed with a no action determination letter or, if deemed
necessary, a warning letter.” Id.

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strict liability.4 Yet Congress expressly carried the mens-rea-
less regulation forward in the 2018 Export Controls Act. 50
U.S.C. § 4826(a); see also id. § 4819(a)(2)(B) (“No person
may cause or aid[] [or] abet, * * * the doing of any act
prohibited, or the omission of any act required by this
subchapter [or] the Export Administration Regulations[.]”); cf.
Gordon v. United States Capitol Police, 778 F.3d 158, 165
(D.C. Cir. 2015) (“Where Congress ‘adopts a new law
incorporating sections of a prior law, Congress normally can
be presumed to have had knowledge of the interpretation given
to the incorporated law, at least insofar as it affects the new
statute.’”) (citation omitted).
Taken together, these textual indicia firmly establish that
Commerce’s interpretation of the statute and its parallel
regulation as allowing for strict liability is not “plainly beyond
the bounds of [its statutory authority]” or “clearly in defiance
of it[.]” Griffith, 842 F.2d at 493 (citation omitted).
4 See In re Micei Int’l, 74 Fed. Reg. 24,788, 24,794 (May 26,
2009) (“As with most of the 764.2 provisions, 764.2(b) of the
Regulations is a strict liability offense”); Recommended Decision &
Order; In re Kabba & Amir Invs., Inc., 73 Fed. Reg. 25,649, 25,652
(May 7, 2008), aff’d In re Kabba & Amir Invs., Inc., 73 Fed. Reg.
25,648 (May 7, 2008) (The Bureau “correctly argues that [the
company’s] knowledge of the violation is irrelevant in determining
whether a violation occurred because 15 [C.F.R.] 764.2(b) is strict
liability. Knowledge or intent is simply not a requisite element of
proof for an aiding or abetting violation.”); In re Petrom GmbH Int’l
Trade, 70 Fed. Reg. 32,743, 32,754 (June 6, 2005); Rotler, 58 Fed.
Reg. 62,095, 62,099 (Nov. 24, 1993); see also Iran Air v. Kugelman,
996 F.2d 1253, 1259 (D.C. Cir. 1993) (Commerce defending strict
liability interpretation before this court).

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2
FedEx’s ultra vires argument runs into a second
headwind—relevant circuit precedent.
In Iran Air v. Kugelman, this court upheld under APA
review Commerce’s interpretation of “causing” a prohibited
act as a strict liability offense. 996 F.2d 1253, 1257–1259
(D.C. Cir. 1993) (interpreting 15 C.F.R. § 787.2 (1992), now
codified at 15 C.F.R. § 764.2(b)). Iran Air thus specifically
upholds a strict-liability interpretation of “causing.” And
“causing” is part of the same string of verbs in the same
sentence in 15 C.F.R. § 764.2(b) as aiding or abetting; in fact,
“causing” directly precedes “aid” and “abet.” We held in Iran
Air that Commerce’s strict-liability reading of that regulatory
term was reasonable and within its statutory authority. 996
F.2d at 1255, 1258. The relevant statutory provisions, we
explained, “appear to leave room for civil penalty regulations”
that allow “the imposition of strict liability.” Id. at 1259. “It
is not unusual[,]” we added, “for Congress to provide for both
criminal and administrative penalties in the same statute and to
permit the imposition of civil sanctions without proof of the
violator’s knowledge.” Id. at 1258.
Given that this circuit has already specifically held that
Commerce can attach strict liability to the first term in the
string of verbs “cause or aid, abet, counsel, command, induce,
procure, permit, or approve[,]” 15 C.F.R. § 764.2(b), there is
no basis for this court to hold that Commerce acted ultra vires
in attaching that same strict-liability reach to the next two
verbs.

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3
If more were needed, the coup de grâce for FedEx’s ultra
vires argument would be the well-established rule of judicial
deference to the Executive Branch in matters that involve
foreign policy and national security.
Ample Supreme Court precedent counsels that courts
accord special deference to an agency construction of a statute
“in the areas of foreign policy and national security” in light of
“the volatile nature of [such] problems[,]” over which the
Political Branches each have preeminent expertise. Haig v.
Agee, 453 U.S. 280, 291 (1981); see Regan v. Wald, 468 U.S.
222, 242–243 (1984) (applying “classical deference to the
[P]olitical [B]ranches in matters of foreign policy” to “sustain
the President’s decision to curtail the flow of hard currency to
Cuba” by restricting travel).
This court too has often noted that, “[b]y long-standing
tradition, courts have been wary of second-guessing executive
branch decision[s] involving complicated foreign policy
matters.” Legal Assistance for Vietnamese Asylum Seekers v.
Department of State, 104 F.3d 1349, 1353 (D.C. Cir. 1997); see
Islamic American Relief Agency v. Gonzales, 477 F.3d 728,
734 (D.C. Cir. 2007) (“[O]ur review—in an area at the
intersection of national security, foreign policy, and
administrative law—is extremely deferential.”). Indeed,
“[m]atters intimately related to foreign policy and national
security are rarely proper subjects for judicial intervention.”
Zivotofsky v. Secretary of State, 725 F.3d 197, 219 (D.C. Cir.
2013) (quoting Agee, 453 U.S. at 292); accord Palestine Info.
Off. v. Shultz, 853 F.2d 932, 942 (D.C. Cir. 1988).
That rule of deference applies with full force here. The
2018 Export Controls Act and its implementing regulations fall

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in the core of Executive and Legislative Branch expertise in the
areas of national security and foreign affairs. The Act
regulates the movement across the United States’ borders of
items that could pose a grave risk to our national security if
they were to fall into the wrong hands. Congress has
specifically determined in the 2018 Export Controls Act that
“[t]he national security and foreign policy of the United States
require that the export, reexport, and in-country transfer of
items” be regulated to “control the release of items for use” in
“the proliferation of weapons of mass destruction or of
conventional weapons[,]” “the acquisition of destabilizing
numbers or types of conventional weapons[,]” “acts of
terrorism[,]” and other harmful uses. 50 U.S.C. § 4811(2).
In addition, export controls aim to “preserve the qualitative
military superiority of the United States” and to “strengthen the
United States defense industrial base.” Id.; see also 15 C.F.R
§ 730.6.
These issues lie at the heart of the United States’ national
security and foreign policy interests. So our analysis of
Commerce’s efforts to protect the Nation’s security and to
prevent bad actors from acquiring restricted items must afford
substantial deference to the judgments of the agency charged
with enforcing the statute’s export control program. Given
that deference, we would be hard-pressed to hold that the law
plainly forecloses Commerce from interpreting its regulation to
strike the mens rea balance in favor of protecting the Nation’s
security.5
5 While this case concerns only civil liability, there is no
question that Congress can allow even for “strict criminal liability”
when necessary to protect the public welfare. Staples v. United
States, 511 U.S. 600, 606 (1994). While “[h]ardship there doubtless
may be” when actions are penalized even though “consciousness of
wrongdoing be totally wanting[,]” United States v. Dotterweich, 320

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B
FedEx counters that “aiding and abetting” in the tort
liability context requires “knowledge of unlawful activity and
the intent to facilitate it[,]” and that Congress incorporated that
common-law meaning into the 2018 Export Controls Act.
FedEx Opening Br. 13–14. That argument is far too frail a
reed on which to rest an ultra vires claim.
To start, we only “presume that Congress incorporates the
common-law meaning of the terms it uses if those ‘terms have
accumulated settled meaning under the common law’ and ‘the
statute does not otherwise dictate.’” United States v. Wells,
519 U.S. 482, 491 (1997) (formatting modified and citation
omitted). So a “common-law term of art” should not be given
its common-law meaning “where that meaning does not fit.”
United States v. Castleman, 572 U.S. 157, 163 (2014) (citation
omitted). Here, the statute indicates that the common-law
meaning is out of place with its selective inclusion and
omission of a mens rea, and Congress’s express affirmation of
established agency regulations and orders. See supra Part
IV.A.1. And rotely imposing common-law principles is
especially inapt for a statute so deeply tied to foreign policy
and national security. See Agee, 453 U.S. at 292. In fact, the
common law on which FedEx relies is a misfit in many
respects.
U.S. 277, 284 (1943), Congress—or in this case, Commerce—may
reasonably conclude, after “[b]alancing [the] relative hardships,” that
the public interest is better served by placing the risk of harm “upon
those who have at least the opportunity of informing themselves of
the existence of conditions imposed for the protection of [others],”
id. at 285.

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To start, the common law of tort does not so clearly or
uniformly require a knowledge mens rea as FedEx supposes.
Certainly some jurisdictions do require “actual
knowledge” of the primary wrongdoer’s tortious activity for
civil aiding and abetting liability.6 But others require only a
general awareness of the primary tortfeasor’s wrongdoing.7
Still other jurisdictions have held that recklessness or
6 See, e.g., Alarmex Holdings, LLC v. JP Morgan Chase Bank,
N.A., 48 N.Y.S.3d 19, 20 (N.Y. App. Div. 2017) (dismissing
complaint that alleged claim for aiding and abetting conversion
because it failed “to allege facts showing that defendant had actual
knowledge of [the primary wrongdoer’s] fraud”); Lerner v. Fleet
Bank, N.A., 459 F.3d 273, 292 (2d Cir. 2006) (New York law
requires “actual knowledge” to establish liability for aiding and
abetting a tort); Casey v. United States Bank Nat’l Ass’n, 26 Cal.
Rptr. 3d 401, 405–408 (Cal. Ct. App. 2005); Invest Almaz v. Temple-
Inland Forest Prods. Corp., 243 F.3d 57, 82–83 (1st Cir. 2001)
(predicting that New Hampshire would adopt the tort of aiding and
abetting a breach of fiduciary duty and would require “actual
knowledge” of the breach of fiduciary duty to impose liability);
Johnson v. Filler, 109 N.E.3d 370, 376 (Ill. App. Ct. 2018); see also
Restatement (Third) of Torts: Liability for Economic Harm § 28,
note c (2020).
7 See, e.g., Halberstam v. Welch, 705 F.2d 472, 477, 485 n.14
(D.C. Cir. 1983) (“[D]efendant must be generally aware of his [or
her] role as part of an overall illegal or tortious activity at the time
that he [or she] provides the assistance[.]”); Wells Fargo Bank v.
Arizona Laborers, Teamsters & Cement Masons Loc. No. 395
Pension Trust Fund, 38 P.3d 12, 26 (Ariz. 2002) (approving “general
awareness” standard); FDIC v. First Interstate Bank of Des Moines,
N.A., 885 F.2d 423, 431 (8th Cir. 1989) (knowledge may be proven
by a “general awareness of [defendant’s] overall role” in the primary
wrongdoer’s “scheme”; “actual knowledge” is not required); York v.
InTrust Bank, N.A., 962 P.2d 405, 424–425 (Kan. 1998).

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constructive knowledge may suffice.8 This variation takes the
air out of FedEx’s insistence that there was a “settled meaning
under the common law” for aiding and abetting liability, Wells,
519 U.S. at 491 (formatting modified and citation omitted).
Even more relevantly, that variation in tort law’s mens rea
requirement as to aiding and abetting liability is amplified
when the underlying primary tort is itself a strict liability tort.
FedEx concedes that at least some violations of the Export
Administration Regulations are strict liability offenses.
FedEx Reply Br. 9 n.4; see Oral Arg. Tr. 34:18–20. The
Second Restatement of Torts, on which FedEx relies,
specifically carves out from any mens rea requirement for civil
aiding and abetting liability the situation “when the conduct of
either the [aider or abettor] or the [primary tortfeasor] is free
from intent to do harm or negligence but involves strict liability
for the resulting harm.” Restatement (Second) of Torts § 876
(1979). In those scenarios, strict liability is imposed “not on
the ground that the conduct upon which it is based is wrongful,”
but because “the conduct, although lawful because of the
importance of the enterprise to the community, creates such
great risk of harm to third persons that it is fair that the one
conducting the enterprise should be required to compensate for
the harm caused by it.” Id. cmt. f. Ultimately, the Second
Restatement took “no position” as to the liability of the aider
8 See, e.g., RBC Capital Markets, LLC v. Jervis, 129 A.3d 816,
862 (Del. 2015) (“To establish scienter, the plaintiff must
demonstrate that the aider and abettor had ‘actual or constructive
knowledge that their conduct was legally improper.’”) (citation
omitted); Chem-Age Indus., Inc. v. Glover, 652 N.W.2d 756, 775
(S.D. 2002) (“Although in some instances actual knowledge may be
required, constructive knowledge will often suffice.”); cf. Witzman
v. Lehrman, Lehrman & Flom, 601 N.W.2d 179, 188 (Minn. 1999)
(adopting a sliding-scale approach between actual and constructive
knowledge).

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and abettor when the underlying primary tort was one of strict
liability. Id. § 876. Which underscores that, even when
measured against the common law, Commerce’s position is not
beyond the bounds of reason.
Since FedEx has not shown that its asserted mens rea
requirement for aiding and abetting liability was truly settled in
the common law at the time the statute was promulgated, or
that its common-law meaning fits within this specialized
national-security scheme, FedEx’s argument does not come
close to satisfying the strict standard for an ultra vires claim.
In fact, the canon of interpretation that “when a statutory term
is obviously transplanted from another legal source, it brings
the old soil with it” cuts the other way in this case. Taggart v.
Lorenzen, 139 S. Ct. 1795, 1801 (2019) (formatting modified
and citation omitted). The more obvious legal backdrop for
Congress to have acted against in the 2018 Export Controls Act
is Commerce’s “causing, aiding, or abetting” regulation, 15
C.F.R. § 764.2(b), which predated the Act, has long been
interpreted as a strict liability offense, see n.4, supra, and which
Congress explicitly embraced in the Act, 50 U.S.C. § 4826(a).
See Wells, 519 U.S. at 492 (rejecting proposed common-law
meaning where “[s]tatutory history confirm[ed] the natural
reading” of the statute).
V
FedEx’s last attempt to demonstrate that Commerce has
acted ultra vires rests on the canon of constitutional avoidance.
FedEx Opening Br. 38–40. No dice.
The “canon of constitutional avoidance is an interpretive
tool, counseling that ambiguous statutory language be
construed to avoid serious constitutional doubts.” FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 516 (2009). “[T]hose

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who invoke the doctrine must believe that the alternative is a
serious likelihood that the statute will be held
unconstitutional.” Almendarez-Torres v. United States, 523
U.S. 224, 238 (1998); see also Rust v. Sullivan, 500 U.S. 173,
191 (1991) (“Applying th[is] canon of construction” to
regulations and holding that those regulations “d[id] not raise
the sort of ‘grave and doubtful constitutional questions[]’ that
would lead us to assume Congress did not intend to authorize
their issuance.”) (citation omitted); Weaver v. United States
Info. Agency, 87 F.3d 1429, 1436 (D.C. Cir. 1996) (applying
the canon to regulations as well as statutes).
FedEx argues that the canon applies because the
imposition of strict liability for aiding or abetting offenses
raises “serious fair notice and vagueness concerns” under the
Due Process Clause of the Fifth Amendment. FedEx Opening
Br. 2. Even assuming that an arguable constitutional concern
would be enough to demonstrate that Commerce acted ultra
vires, FedEx has not made that showing.
The Due Process Clause’s fair notice requirement
generally requires only that the government make the
requirements of the law public “and afford the citizenry a
reasonable opportunity to familiarize itself with its terms and
to comply.” United States v. Bronstein, 849 F.3d 1101, 1107
(D.C. Cir. 2017) (quoting Texaco, Inc. v. Short, 454 U.S. 516,
532 (1982)). “Even trained lawyers may find it necessary to
consult legal dictionaries, treatises, and judicial opinions
before they may say with any certainty what some statutes may
compel or forbid.” Id. (quoting Rose v. Locke, 423 U.S. 48,
50 (1975) (per curiam)).
As a result, a statute or regulation is considered
unconstitutionally vague only if, “applying the rules for
interpreting legal texts, its meaning specifies no standard of

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conduct at all.” Bronstein, 849 F.3d at 1107 (formatting
modified and citation omitted). The key question, then, is
whether the law or regulation “provides a discernable standard
when legally construed.” Id.
Commerce’s strict-liability interpretation of its regulation
and the parallel statutory provision satisfies that fair notice
requirement.
To start, FedEx has already twice before been subjected to
strict liability charges under this very regulation, once in 2011
and again in 2017. Both times it settled the claims. So FedEx
has long had actual notice of Commerce’s strict-liability
interpretation and application of the regulation.
In addition, Commerce’s interpretation is long-lived. See
n.4, supra. And the plain text of the 2018 Export Controls Act
textually preserves that preexisting regulatory standard. 50
U.S.C. § 4819(a)(2)(B).
If more were needed, this court has already held that “the
language of the statute and the pertinent regulations adequately
indicated that civil sanctions could be assessed on a strict
liability basis.” Iran Air, 996 F.2d at 1259.
Finally, the statute’s express state of mind requirements
for criminal punishment, but silence as to civil sanctions, gives
notice that civil penalties may be assessed on a strict liability
basis. This is because there is a “strong presumption that
Congress expresses its intent through the language it
chooses[,]” including when it chooses to omit language that it
used in a different part of a statute. INS v. Cardoza-Fonseca,
480 U.S. 421, 432 & n.12 (1987). Plus, the levy of civil
sanctions without a state of mind requirement is not
uncommon. See Iran Air, 996 F.2d at 1258.

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VI
For all of those reasons, we hold that Commerce’s
regulation, 15 C.F.R. § 764.2(b), and its strict-liability
interpretation of it are not ultra vires. The judgment of the
district court granting the Department of Commerce’s motion
to dismiss for failure to state a claim is affirmed.
So ordered.

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