Limitations on Presidential Authority To Control
Export of Certain Hazardous Substances
T h e re g u la to ry sc h em e im posed by c e rtain sta tu te s reg u latin g specific h aza rd o u s su b
sta n ces fo r p u rp o ses o f h ealth an d safety d o es n ot p re c lu d e th e P re sid en t from im posing
e x p o rt c o n tro ls on th o se substances fo r foreign po licy p u rp o ses u n d e r th e E x p o rt
A d m in istratio n A c t (E A A ).
S ectio n 17(a) o f th e E A A d o es not su p e rsed e o th e r law s im posing e x p o rt c o n tro ls, but
ex p ressly reco g n izes th e effect o f su ch o th e r law s; c o n tro ls u n d er th e E A A th u s m ay
exist side-by-side w ith c o n tro ls im posed p u rsu an t to o th e r laws.
In su latin g th e v ast ran g e o f p ro d u c ts w h ic h a re su b je ct to d o m estic health and safety
reg u latio n s fro m e x p o rt c o n tro ls w o u ld d efeat th e g o als o f th e E A A relatin g to
natio n al se cu rity , fo reig n p o licy , and e c o n o m ic stability.
November 13, 1980
M EM ORANDUM OPIN IO N FOR
T H E DEPUTY COUNSEL TO T H E PR ESID EN T
This responds to your request for our opinion whether other statutes
limit the President’s authority under the Export Administration Act of
1979 (EAA), Pub. L. No. 96-72, 93 Stat. 503 (1979), 30 U.S.C. app.
§2401 (Supp. Ill 1979), to control exports of hazardous substances for
foreign policy purposes. Your request further pursues the subject of our
memorandum of April 11, 1980, for the Special Assistant to the Presi
dent for Consumer Affairs, in which we found the general authority for
such export controls but added a caveat noting that we did not address
the effect, if any, of other statutes regulating hazardous substances.*
The General Counsel to the United States Trade Representative has
since expressed his opinion in a memorandum (hereinafter Memoran
dum) that the effect of certain of these statutes is to preclude the
imposition of export controls under the EAA. We disagree with this
reading of the statutes; and for the reasons that follow, we conclude
that the President’s authority under the EA A is not so limited.
In his Memorandum, the General Counsel states his view that certain
statutes currently controlling the products as to which export controls
are being considered contain “express provisions” permitting exports of
the products.1 The General Counsel therefore concludes that export
• N o t e : T h e text o f the A pril 11, 1980, m em orandum appears in this volum e at p. 568. Ed.
1 T h e Federal Food, D rug, and C osm etic A ct, 21 U .S.C. § 381(dXl); the Public H ealth Service A ct,
42 U .S.C. § 263f(aK3); the C onsum er P ro d u ct Safety A ct, 15 U.S.C. §2067 (Supp. II 1978); the
Continued
802
controls under the EAA would be inconsistent with its statutory lan
guage and would intrude upon congressional authority under Article I,
§ 8, clause 3 o f the Constitution to regulate foreign commerce. The
inconsistency is asserted on the basis of § 17(a) of the EAA which
provides that “[n]othing contained in this Act. . . . shall be construed
to modify, repeal, supersede, or otherwise affect the provisions of any
other laws authorizing control over exports of any commodity.” 50
U.S.C. App. § 2416(a). By this section, the General Counsel finds that
Congress has expressly excluded from controls under the EAA any
commodity the export of which is provided for under any other law,
including the seven specific statutes cited. And, in the face of the
asserted congressional prohibition of export controls, he concludes that
the Executive has no authority to regulate foreign commerce. We have
examined the General Counsel’s Memorandum and in our opinion none
of its conclusions is correct.
I.
A. The General Counsel’s Memorandum rests, at bottom, on the
view that each of the seven statutes cited expressly authorizes export of
the regulated products. We find no such express authorization.
The so-called export authorization cited under the Federal Food,
Drug, and Cosmetic Act, 21 U.S.C. § 381(d)(1), provides that a food,
drug, device, or cosmetic intended for export shall not be deemed to be
adulterated or misbranded within the meaning of the law if it meets
certain conditions for export including specification by a foreign pur
chaser, compliance with the laws of the importing country, and appro
priate labeling. Section 381(d)(1) is thus not an express authorization of
exports at all. It is nothing more than an exemption for exports from
the regulatory scheme and the standards required for products intended
for use in this country.
With minor differences in the requirements that must be met before
the exemption from domestic standards will be available, the other cited
provisions are to the same effect. Thus the Public Health Service Act
requires labeling for export and compliance with the requirements of
the importing country, 42 U.S.C. § 263f(a)(3) (electronic products emit
ting radiation); the Consumer Products Safety Act, labeling for export,
no unreasonable risk to consumers' within the United States, and notifi
cation to the Consumer Product Safety Commission of intent to export,
15 U.S.C. § 2067 (Supp. II 1978); the Federal Hazardous Substances
Act, marking for exports, labeling in accordance with the specifications
of the foreign purchaser and the laws of the foreign country, no
unreasonable risk of injury to persons in the United States, and notifica-
Federal H azardous Substances A ct, 15 U.S.C. § 1264