The President's Authority to Control the Export of Hazardous Substances ( 1980 )

The President’s Authority to Control
the Export of Hazardous Substances
T h e E x p o rt A d m in istratio n A c t o f 1979 c o n tin u e d th e P re sid e n t’s a u th o rity u n d er its
p re d e c e sso r sta tu te to c o n tro l e x p o rts o f h a z a rd o u s su b stan ces fo r foreign policy
p u rp o ses.
T h e s ta tu to ry c rite ria fo r a d ecisio n to im pose e x p o rt c o n tro ls set fo rth in § 6(e) o f th e
1979 A c t a re n o t bin d in g on th e P re sid en t, a lth o u g h he m ust specify his co nclusions
w ith resp ec t to th ese c rite ria in a re p o rt to C o n g ress.
C e rta in sta tu te s im posing c o n d itio n s o n th e e x p o rt o f specific h azard o u s substances m ay
fo rec lo se o r lim it presidential d isc re tio n to ta k e som e actio n s u n d er th e 1979 A ct.
April 11, 1980
M EM ORANDUM OPINION FO R T H E SPECIA L ASSISTANT
TO T H E PR ESID EN T FOR CONSUM ER A FFA IRS
This responds to your request for our opinion whether the Export
Administration Act of 1979, Pub. L. No. 96-72, 93 Stat. 503 (1979), 50
U.S.C. App. § 2401 (Supp. Ill 1979), provides authority for the Presi­
dent to control the export of hazardous substances in’ pursuit of the
foreign policy of the United States. We conclude that the Act does
provide such authority. You have also asked whether the President, in
exercising such authority, is formally bound by the factors for his
consideration that are set forth in § 6 o f the 1979 Act. We conclude
that he is not.
I. Substantive Authority to Control Exports of Hazardous Substances
In a memorandum dated January 30, 1979, to the Deputy General
Counsel of the Department of Commerce, we concluded that the 1979
A ct’s predecessor statute, the Export Administration Act of 1969, gave
the President authority to control exports of hazardous substances for
foreign policy purposes. The issue, then, is whether the 1979 Act
continued this authority or modified it in any respect.
The A ct’s operative language for foreign policy controls was left
essentially unchanged in 1979. It authorizes the President to “prohibit
or curtail the exportation of any goods, technology, or other informa­
tion . . . to the extent necessary to further significantly the foreign
policy of the United States or to fulfill its declared international obliga­
tions.” Section 6(a)(1) of the 1979 Act, 93 Stat. 503, 513, 50 U.S.C.
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App. § 2405(a)(1) (Supp. Ill 1979). Although the phrase “foreign
policy” is not defined in either the 1969 or the 1979 statute, Congress
provided some explanatory legislative history in 1979. It did so in the
course of separating authority for foreign policy controls from that for
national security controls, and providing different criteria and proce­
dures for each. In the House of Representatives, where the separation
originated, the report of the Committee on Foreign Affairs explained
how these two sources of authority differ:
The purposes of foreign policy controls are more vague
and more diffuse. The purposes can range from changing
the human rights policy of another country; to inhibiting
another country’s capacity to threaten the security of
countries friendly to the United States; to associating the
United States diplomatically with one group of countries
as against another; to disassociating the United States
from a repressive regime. Unlike the situation with na­
tional security controls, some of these foreign policy pur­
poses may be served by denying exports even where
foreign availability exists. (In the hypothetical case fre­
quently mentioned in hearings and markup, the United
States would not want to export thumbscrews, even if
other countries were doing so.) Since decisions on foreign
policy controls are often more political than technical,
congressional involvement in those decisions is more ap­
propriate than in the case of national security controls.
H.R. Rep. No. 200, 96th Cong., 1st Sess. 7 (1979) (hereinafter 1979
House Report).
The Report’s emphasis on the range of purposes that foreign policy
controls may serve suggests strongly that controls on exports of hazard­
ous substances are included. The conference report provides further
support in its statement that this authority “encompasses the full range
of U.S. foreign policy goals.” H.R. Conf. Rep. No. 482, 96th Cong., 1st
Sess. 43 (1979).
The 1979 Act provides definitions of the terms “good” and “technol­
ogy” as used in § 6. These are certainly broad enough to include
hazardous substances. Under § 16(3), 50 U.S.C. App. §2415, “good” is
defined to mean “any article, material, supply or manufactured product,
including inspection and test equipment, and excluding technical data.”
50 U.S.C. App. §2415. The term “technology” is defined by § 16(4) to
mean “the information and know-how that can be used to design,
produce, manufacture, utilize, or reconstruct goods, including computer
software and technical data.” Id.
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II. Procedure for Imposing Foreign Policy Controls
Procedurally, § 6(e) of the 1979 Act requires that the President “in
every possible instance shall consult with the Congress before impos­
ing” foreign policy controls. 93 Stat. 514, 50 U.S.C. App. § 2405(e).
Upon imposing the controls, the President must report to Congress,
specifying his conclusions with respect to a set of criteria for decisions
set forth in § 6(b) of the Act. Id. On their face, these criteria are not
significantly confining of presidential discretion. For example, the Presi­
dent is to consider the probability that controls will achieve the in­
tended foreign policy purpose in light of such factors as foreign avail­
ability of the goods. Moreover, the legislative history is clear that these
criteria “are to be taken into consideration, but they are not conditions
which must be met.” 125 Cong. Rec. 19937 (1979) (Statement of Sena­
tor Stevenson on introducing S. 737). The committee reports confirm
this interpretation. See 1979 House Report at 20 (“Having considered
these criteria, the President is not strictly bound by them.”); S. Rep.
No. 169, 96th Cong., 1st Sess. 8 (1979) (provision “did not establish
criteria to be met but factors to be considered, and recognized that the
President, having considered them, might find one or more of the
factors irrelevant to a decision to impose or remove controls.”).
Section 6(e)(2) also requires the President to report any alternative
means that were attempted to achieve the purposes of the controls, or
his reason for eschewing them, 50 U.S.C. App. § 2405(e)(2); § 4(c) of
the Act allows the President to impose foreign policy controls only on
a determination that the embargoed goods cannot be replaced through
sources outside of the United States, “unless the President determines
that adequate evidence has been presented to him demonstrating that
the absence of such controls would prove detrimental to the foreign
policy or national security of the United States.” 50 U.S.C. App.
§ 2403(c).
III. Conclusion
Thus we conclude that under the Export Administration Act of 1979,
the President may control the export of hazardous substances in appro­
priate circumstances. We would enter one caveat, however. Certain
statutes presently impose conditions on the export of hazardous sub­
stances, e.g., the Toxic Substances Control Act, 15 U.S.C. §2611(b)(1),
requiring notice to the recipient nation of product risks. It may be that
these statutes foreclose presidential discretion to take some actions, for
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example banning a product that a statute allows to be exported if notice
is given. In the absence of a specific proposal, we have not researched
such questions, and wish merely to alert you to them.
L eon U lm an
Deputy Assistant Attorney General
Office o f Legal Counsel
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