Limitations on Presidential Authority To Control 

Export of Certain Hazardous Substances

T h e regu lato ry schem e im posed by certain statutes regulating specific hazardous substances for purposes o f health and safety does not preclude the President from im posing 

export co n tro ls on those substances for foreign policy purposes under the E xport 

A dm inistration A ct (E A A ).

Section 17(a) o f the E A A does not supersede o th e r law s im posing export controls, but 

expressly recognizes the effect o f such o th er laws; co n tro ls under the E A A thus may 

exist side-by-side w ith co n tro ls im posed pursuant to o th e r laws.

Insulating the vast range o f pro d u cts w hich are subject to dom estic health and safety 

regulations from export co n tro ls w ould defeat the goals o f the E A A relating to 

national security, foreign policy, and econom ic stability.

November 13, 1980

MEMORANDUM OPINION FOR 

TH E DEPUTY COUNSEL TO TH E PRESIDENT

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 President 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 Memorandum) 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 EAA 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 he text o f the A pril 11, 1980, mem orandum appears in this volume at p. 568. Ed.

1 T he Federal Food, D rug, and Cosmetic Act, 21 U.S.C. § 381(dXl); the Public Health Service Act, 

42 U.S.C. § 263f(aK3); the Consum er Product Safety A ct, 15 U.S.C. §2067 (Supp. II 1978); the

Continued

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controls under the EAA would be inconsistent with its statutory language and would intrude upon congressional authority under Article I, 

§ 8, clause 3 of 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 purchaser, compliance with the laws of the importing country, and appropriate 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 emitting radiation); the Consumer Products Safety Act, labeling for export, 

no unreasonable risk to consumers' within the United States, and notification 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 notificaFederal Hazardous Substances Act, 15 U.S.C. § 1264<b) (Supp. II 1978); the Flammable Fabrics Act,

15 U.S.C. § 1202 (Supp. II 1978); the Federal Insecticide, Fungicidc, and Rodenticide A ct, 7 U.S.C. 

§ 136o (Supp. II 1978); the Toxic Substances C ontrol Act, 15 U.S.C. §2611.

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tion to the Commission, 15 U.S.C. § 1264(b) (Supp. II 1978); the Flammable Fabrics Act, labeling for export, and no unreasonable risk to 

persons in the United States, and notification to the Commission, 15 

U.S.C. § 1202(a), (c) (Supp. II 1978); the Federal Insecticide, Fungicide, 

and Rodenticide Act, preparation or packaging in accordance with the 

specifications of the foreign purchaser and, if applicable, a signed acknowledgment by the purchaser, with a copy to an appropriate official 

of the importing country, that the pesticide is not registered for use in 

the United States and cannot be used in the United States, 7 U.S.C. 

§ 136o(a) (Supp. II 1978); and the Toxic Substances Control Act, labeling for export, no unreasonable risk of injury to health within the 

United States or to the environment of the United States, and in some 

cases notification to the Administrator of the Environmental Protection 

Agency of intent to export, 15 U.S.C. § 2611.

Nowhere in any of the above-referenced provisions is there any 

indication of an intent to confer an absolute right to export without 

regard to any other provisions of law.2 There is merely an exemption 

from the domestic standards that would otherwise apply.3

B. In the absence of any express authorization for exports under these 

statutes, the further argument in the Memorandum as to the effect of 

§ 17(a) of the EAA has not even the basis asserted therein. The continuing relevance of other laws providing for export, as § 17(a) is said 

to recognize, depends first on a finding that other laws in fact provide, 

in so many words, for export. We have concluded that the cited 

statutes do not. But even if they did, the effect of § 17(a) would not be 

to preclude controls under the EAA. The assertion in the Memorandum to the contrary greatly distorts the language of § 17(a).

First, § 17(a) does not address, as the Memorandum asserts, the relationship between the EAA and other laws that provide for export. 

Section 17(a), in fact, addresses the relationship between the EAA and 

laws that do affirmatively provide, just to the contrary, for export 

controls. The seven statutes cited cannot be at the same time laws 

expressly authorizing exports and laws authorizing controls over ex2 In fact, § 2 o f the Senate version of the EA A , which contained references to the “right o f export,” 

was amended to substitute the w ord “ability" for the w ord “right,” see 50 U.S.C. App. §2401(1), 

specifically to avoid the inference o f “a constitutional or otherw ise legally enforceable right to export 

free from governm ent restriction.” S. Rep. No. 169, 96th Cong., 1st Sess. 3-4 (1979) (hereinafter cited 

as “ 1979 Senate R eport”). If any o f these seven statutes had conferred a right to export, we think that 

it would have been mentioned at this point.

3 G iven the clarity o f the language, we need not review the legislative history o f the EA A , 

although we do note that there is no indication in the history that any o f these seven statutes is an 

export control law. T he House report states only that ”[t]he Export Administration A ct o f 1969 

constitutes the basic authority for controlling the export of most civilian products from the United 

States. (Related acts are the Arms Export C ontrol Act, pertaining to the export o f arms, ammunition, 

and implements o f war, and the N uclear N on-Proliferation A ct o f 1978, pertaining to the export of 

nuclear materials and technology.)” H.R. Rep. No. 200, 96th Cong., 1st Sess. 2-3 (1979) (hereinafter 

cited as “ 1979 House R eport”). W e also have no need to rely upon, although again w e certainly do 

note, the well-settled rule that repeals by implication are not favored. See, e.g., Morton v. Mancari, 417 

U.S. 535, 549 (1974).

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ports. Second, § 17(a) does not address, as the Memorandum asserts, the 

effect on further controls under the EAA even as to commodities that 

are controlled under other laws. Again, § 17(a) is addressed to just the 

contrary situation. The relationship is stated not in terms of the effect 

on controls under the EAA but in terms of controls under these other 

laws. And third, even as to these other laws, the effect is just the 

contrary of that stated in the Memorandum. Section 17(a) is not a 

preclusion of further controls- at all. Instead, it expressly recognizes the 

effect of other controls.

C. With this statutory construction, the constitutional argument in 

the Memorandum also falls. The assertion that the Executive may 

regulate commerce only as Congress has. provided, and thus may not 

take actions that Congress has expressly forbidden, is meaningless in the 

context of the EAA, which not only does not forbid the export controls contemplated here but in fact expressly authorizes them.4

II.

There are other significant reasons for our opinion that the regulatory scheme of the seven cited statutes does not preclude export controls for foreign policy purposes under the EAA. The argument to the 

contrary ignores the history of § 17(a), fails to take account of the 

effect of the argument on national security and short-supply controls, 

and represents a fundamental misunderstanding of the purpose and 

function of the EAA.

A. The provision that is now § 17(a) derives from § 10 of the Export 

Control Act of 1949, which provided:

The Act of February 15, 1936 (49 Stat. 1140), relating to 

the licensing of exports of tinplate scrap, is hereby superseded; but nothing 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.

Pub. L. No. 81-11, § 10, 63 Stat. 7, 9 (1949). The legislative history of 

§ 10 makes clear both the reason for the change in the law relating to 

tinplate scrap and the fact that no other changes in existing export 

control laws were made. Under prior law, the export licensing authority for tinplate scrap was conferred upon the Department of State but 

was, in practice, handled by the Department of Commerce. Section 10 

had the effect of transferring the licensing authority to the agency that 

would administer the 1949 Act and also conforming the law to the 

prior practice. S. Rep. No. 31, 81st Cong., 1st Sess. 7 (1949). Yet there

4 We do not wish to be understood as conceding, however, that the Executive has no independent 

constitutional authority to regulate com m erce for foreign policy reasons. Because the EA A clearly 

confers this authority by statute, we have no need to consider the constitutional question.

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were in effect at the time of the 1949 Act export controls on other 

commodities, such as narcotics, gold, ammunition, arms, implements of 

war, tobacco seed, and atomic energy materials, H.R. Rep. No. 18, 81st 

Cong., 1st Sess. 12 (1949); the Senate report, supra, mentions helium 

also. As to these, “the bill makes no change whatever in the present 

laws.” S. Rep. No. 31, supra; see also H.R. Rep. No. 18, supra.

The Export Administration Act of 1969, Pub. L. No. 91-184, § 12(a), 

83 Stat. 841, 846 (1969), retained verbatim the language of § 10. The 

1979 Act deleted the language expressly superseding the prior law as to 

tinplate scrap but retained the language continuing the effectiveness of 

other laws authorizing control over exports. There is no explanation in 

the legislative history why the 1969 Act carried over the reference to 

tinplate scrap or why the 1979 Act deleted it, but the process is in any 

event not relevant to the issue here. What is important is that the 1979 

Act retained in § 17(a) that portion of the prior provisions clearly 

stating the legislative intent that the EAA did not replace the regulatory authority existing pursuant to other laws.

By its literal terms, § 17(a) goes no further. As we noted above in 

discussing the construction given to § 17(a) in the Memorandum, the 

section does not address the effect, if any, of this other regulatory 

authority on the authority under the EAA. But in preserving the 

authority to impose controls pursuant to other laws, § 17(a), like its 

predecessors, creates a regulatory structure in which export controls 

under these other laws exist side by side with controls under the EAA. 

At least in the absence of any indication to the contrary in these other 

statutes, the reasonable conclusion to be drawn from the history of 

§ 17(a), and the logical implication of the regulatory structure that 

results, is that controls under the EAA also may exist side by side with 

these other controls. As we discuss at length above, we find no such 

contrary indication in any of the seven statutes cited.

The Memorandum is addressed only to export controls imposed for 

foreign policy purposes. But the EAA also provides authority to 

impose controls in the interests of national security, or to prevent 

undue diminution of goods in short supply, 50 U.S.C. App. §§ 2404, 

2406. The authority as to national security controls is conferred in 

furtherance of the congressionally declared policy of using export controls “to restrict the export of goods and technology which 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.” 50 U.S.C. App. 

§ 2402(2)(A). As to short-supply controls, the export control authority 

is intended to implement the policy of using export controls “to protect 

the domestic economy from the excessive drain of scarce materials and 

to reduce the serious inflationary impact of foreign demand.” 50 U.S.C. 

App. § 2402(2)(C).

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B. The Memorandum does not discuss the effect of § 17(a) on these 

national security or short-supply controls, but there is nothing in § 17(a) 

that would limit to foreign policy controls the effect attributed to that 

provision in the Memorandum. Under that interpretation, national security, controls would be precluded merely because another statute imposed health and safety regulations on domestic distribution of a particular product but utilized a more lenient standard for exports. For this 

is all that the seven cited provisions do; and this, of course, protects the 

national security not at all. A health-and-safety regulatory scheme that 

included different standards for domestic distribution and export would 

similarly preclude short-supply export controls even though the other 

statute protected the national economy not at all. This interpretation of 

§ 17(a) cannot be squared with the clear legislative intent as expressed 

in the congressional declarations of policy.5

C. In the final analysis, this result is the clearest indication that the 

view in the Memorandum must be rejected. In pursuit of national 

security, foreign policy, and economic stability, the EAA was intended 

to provide comprehensive authority for the control of exports. Nothing 

less would meet the stated goals of increasing the emphasis on national 

security, 1979 Senate Report at 4, and implementing “the full range of 

U.S. foreign policy goals,” H.R. Rep. No. 482, 96th Cong., 1st Sess. 43 

(1979) (1979 Conference Report) while at the same time minimizing 

uncertainty in export policy, increasing the efficiency of applicable 

administrative procedures, obtaining increased cooperation by our 

allies, and providing the Executive with the flexibility to react 

promptly and appropriately to extreme and varied situations. See 1979 

Senate Report at 2-3, 8; 1979 House Report at 4-5; 1979 Conference 

Report at 43. Insulating a vast range of products from export controls 

would in one stroke defeat these goals and prevent any kind of a 

comprehensive and consistent export policy. And, as increased concern 

about health and safety requires expanded domestic regulation of hazardous substances, this approach would force the Executive to choose, 

on the one hand, between forgoing domestic .regulation (or seeking in 

the course of such regulation export standards identical in all circumstances to domestic standards) or, on the other hand, retaining the 

authority to control exports as appropriate under the EAA. We cannot 

believe that Congress intended to force such a choice. The legislative 

history and the statements of findings and policy in the EAA are at 

odds with this interpretation and indicate instead that, where export

5 One additional indication that these health-and-safety regulations do not preclude the imposition 

o f export controls under the E A A is the inclusion of § 6(0 o f the Act, w hich provides that the EA A 

does not authorize controls on medicine or medical supplies, 50 U.S.C. App. § 2405(f). A lthough the 

products that fall within this exclusion might not be identical to those regulated under the Federal 

Food, Drug, and Cosmetic A ct there is clearly some overlap. If 21 U.S.C. §381(dX l) had the effect 

that the M emorandum contends it has, § 6(0 would have been either om itted as unnecessary o r at least 

phrased with reference to § 381(d)(1)

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controls under the EAA become important for reasons of national 

security, foreign policy, or short domestic supplies, the President would 

have the authority, notwithstanding any other statute that allows exports in the absence of one of these reasons, to impose those controls.

For all the foregoing reasons, we reject the view in the Memorandum that the seven statutes cited preclude the imposition of export 

controls pursuant to the EAA. We find no such preclusion and find 

instead the President’s continuing authority under the EAA to control 

exports as appropriate.

L e o n U lm a n 

Deputy Assistant Attorney General

Office o f Legal Counsel

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