The President’s Authority to Control

the Export of Hazardous Substances

T h e E x p o rt A dm inistration A ct o f 1979 continued the P resid en t’s au th o rity under its 

p redecessor statute to control exports o f h azardous substances for foreign policy 

purposes.

T h e sta tu to ry criteria for a decision to im pose export co n tro ls set forth in § 6(e) o f the 

1979 A ct are not binding on the P resident, alth o u g h he m ust specify his conclusions 

w ith respect to these criteria in a rep o rt to C ongress.

C ertain statutes im posing conditions on th e export o f specific hazardous substances may 

foreclose o r limit presidential d iscretion to take som e actions under the 1979 A ct.

April 11, 1980

MEMORANDUM OPINION FOR TH E SPECIAL ASSISTANT 

TO TH E PRESIDENT FOR CONSUMER AFFAIRS

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 President 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 of 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 

Act’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 Act’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 information . . . to the extent necessary to further significantly the foreign 

policy of the United States or to fulfill its declared international obligations.” 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 procedures 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 national security controls, some of these foreign policy purposes may be served by denying exports even where 

foreign availability exists. (In the hypothetical case frequently 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 appropriate 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 hazardous 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 “technology” 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 imposing” 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 President is to consider the probability that controls will achieve the intended foreign policy purpose in light of such factors as foreign availability 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 Senator 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 appropriate circumstances. We would enter one caveat, however. Certain 

statutes presently impose conditions on the export of hazardous substances, 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 e o n U l m a n

Deputy Assistant Attorney General

Office o f Legal Counsel

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