  Exclusion of Medicine and Medical Supplies From Controls
         Under the Export Administration Act of 1979

C o n g ress in ten d ed th e exclusion in § 6 (0 o f th e E x p o rt A d m in istratio n A c t o f 1979 for
   m edicine an d m edical supplies to be absolute, and d id not in ten d to lim it it by im posing
  a strict sta n d ard o f hum an need.

T h e P resid en t has b ro ad d isc retio n to d e te rm in e w h e th e r p a rtic u la r e x p o rts a re m edicines
   o r m edical supplies w ithin th e exclusion, su b ject o n ly to th e lim itation su g g e sted by the
   co n c e p t o f basic h u m an need.


                                                                                       November 13, 1980

   MEMORANDUM OPINION FOR TH E SPECIAL ASSISTANT
      TO TH E PR ESID EN T FOR CONSUMER A FFA IRS

  This responds to your request for our opinion as to the scope of the
exclusion of “medicine or medical supplies” from export controls under
the Export Administration Act of 1979, Pub. L. No. 96-72, 93 Stat. 503
(1979), 50 U.S.C. App. § 2401 (Supp. Ill 1979). In pertinent part, the
exclusion in § 6(0 of the Act reads:
          (0 Exclusion for Medicine and Medical Supplies—
          This section does not authorize export controls on medi­
          cine or medical supplies. It is the intent of Congress that
          the President not impose export controls under this sec­
          tion on any goods or technology if he determines that the
          principal effect of the export of such goods or technology
          would be to help meet basic human needs. This subsection
          shall not be construed to prohibit the President from
          imposing restrictions on the export of medicine or medical
          supplies under the International Emergency Economic
          Powers Act.
50 U.S.C. App. § 2405(f). You have asked whether the exclusion is
limited to only those “goods or technology . . . the principal effect of
which would be to help meet basic human needs”; and, if so, what is
meant by the phrase “basic human needs”; and how and by whom the
determinations of exclusion are to be made.



                                                        809
                       I. The Scope of the Exclusion
     Your question concerning the scope o f the § 6(F) exclusion (actually,
  the absence of authority to impose controls) arises because there is
  tension between the first and second sentences of the subsection as
  quoted above. The first sentence uses the phrase “medicine or medical
  supplies” in describing the goods and technology excluded from con­
  trols, while the second sentence defines the exclusion in terms of a
  standard of “basic human needs.” Yet the Act defines neither phrase
  and does not otherwise indicate whether they are intended to have the
 same meaning. Because of this ambiguity, there are two possible read­
  ings of the effect of the two sentences together.
     First, as you inquired, the second sentence could be read as limiting
 or further defining the first. Thus, although the first sentence seems to
 exclude from controls all medicine and medical supplies, the second
 sentence would limit the exclusion to medicine and medical supplies,
 the principal effect of which would be to help meet basic human needs.
 Alternatively, the second sentence might be read as merely explaining
 the basis for the absolute exclusion in the first sentence and would not
 impose a strict standard of human need on the exclusion. The question
 is not free from doubt, but we conclude that the latter interpretation is
 the better reading of the language of the subsection itself and is also
 more consistent with the sparse legislative history of the exclusion.
    Initially, we note the interpretive problems that you suggested. As to
 the statutory language itself, the first sentence, the only operative
 language of the subsection, is phrased as an absolute exclusion. To read
 the second sentence as a limitation on this absolute exclusion would
 have the effect of giving greater weight to the language phrased merely
as a statement of intent than to the operative language itself. Moreover,
only if the standard of “basic human needs” encompasses less than all
 medicines and medical supplies could the question of limitation even
arise; and, in the absence of definitions in the Act or the legislative
history of “medicine or medical supplies” or of “basic human needs,” it
is not evident that the second sentence is a limitation on the first.
Instead, Congress could have intended to convey its belief that all
medicine and medical supplies would help meet a broadly conceived
standard of basic human need. With regard to the majority of medicine
and medical supplies, this belief would be supportable in fact. The
possibility that there might exist some medical goods that would not be
thought to meet a standard of basic human need no matter how broadly
it was defined, should not prevent Congress from legislating on the
basis of this presumption with regard to the entire class of goods.
    There is little legislative history of § 6(f)- The House version of the
Export Administration Act originally contained an exclusion for food,
medicine, and medical supplies. H.R. 4034, 96th Cong., 1st Sess. § 6(f)
(1979) (discussed at 125 Cong. Rec. 24,034 (1979)). The House Report
                                   810
 accompanying the bill, however, is not helpful concerning the question
 of interpretation, for it merely restates the language of the bill itself.
 H.R. Rep. No. 200, 96th Cong., 1st Sess. 20 (1979). The Senate version
of the Act, S. 737, 96th Cong., 1st Sess. (1979), contained no exclusion
at all. The conference committee agreed to the House version with an
amendment to make the exclusion apply only to medicine and medical
supplies. Again, however, the conference report does no more than
state this procedural history. H.R. Rep. No. 96-482, 96th Cong., 1st
Sess. 46 (1979).
   The hearings before the House subcommittee considering the bill are
somewhat more revealing. Again, the discussion of the exclusion was
not extensive; but we believe that what little discussion there was
supports our interpretation that the second sentence of the subsection is
an explanation and not a limitation. As originally proposed, the exclu­
sion in the House bill was limited to the first two sentences of what is
now § 6(0- It did not provide, as the third sentence of the subsection
now does, that the exclusion “shall not be construed to prohibit the
President from imposing restrictions on the export of medicine or
medical supplies, under the International Emergency [Economic]
Powers Act,” 50 U.S.C. App. 2405(0 (referring to 50 U.S.C. § 1701
(Supp. I 1977)). William A. Root, Director of the Office of East-West
Trade at the Department of State, objected to the subsection as pro­
posed because it did not explicitly recognize the President’s powers
under the International Emergency Economic Powers Act. But there is
no indication that Director Root understood § 6(0 as proposed to be
other than an absolute exclusion. In fact, it was this understanding that
led to his concern about the President’s emergency powers. Specifi­
cally, Director Root testified:
         Proposed section 6(g) [now § 6(0] would exclude food,
      medicine, and medical supplies from export controls au­
      thorized by this act for foreign policy purposes. Nor­
      mally, controls need not extend to these items. However,
      there may arise instances where commercial exports even
      of food and medicine would not be in the national inter­
      est. There would be no objection to extending to the
      Export Administration Act the prohibition now contained
      in the [International] Emergency Economic Powers
      Act—-section 203(b)(2) of Public Law 95-223—against
      controlling donations of articles, such as food, clothing,
      and medicine, intended to be used to relieve human suffer­
      ing, except to the extent that the President determines
      that such donations are in response to coercion against the
      proposed recipient or donor.
Extension and Revision of the Export Administration Act of 1969:
Hearings and Markup on H.R. 2539 Before the Subcomm. on Intema-
                                   811
tional Economic Policy and Trade of the House Comm, on Foreign
Affairs, 96th Cong., 1st Sess. 648 (1979) (hereinafter cited as Hearings).
   Remarks made during the markup session also support the interpreta­
tion that § 6(0 was intended to impose an absolute exclusion from
controls. Representative Lagomarsino of California offered an amend­
ment to strike the § 6(0 exclusion because he was concerned with the
effect of the subsection on existing embargoes which included food,
medicine, and medical supplies. But he was also concerned because he
“[did] not think that we should be saying that under no circumstances
under this act should we have a total solution or a total prohibition
about embargoes on food, medicine, and medical supplies.” Hearings at
774. Subcommittee Chairman Bingham of New York suggested that the
amendment be considered in connection with an amendment proposed
to eliminate the next subsection of the Act which provided that a total
trade embargo was not authorized. Chairman Bingham explained:
         First of all, I think it is pretty clear this does not affect
      the existing embargoes against Cuba, Vietnam, Cambodia,
      and so on. They are authorized by other legislation. These
      paragraphs say this section does not authorize export con­
      trols of food, medicine, and so on. Basically it is my view
      that a total embargo is such an extreme measure that it
      ought to be specifically authorized by the Congress and
      not imposed by the administration, even though it may be
      subject to later veto by the Congress. That applies to a
      total embargo, and that applies to export controls on food,
      medicine, or medical supplies. These are extreme meas­
      ures. Export controls on food and medicine are surely of
      the gravest importance, close to an act of economic war­
      fare, and therefore it is my view that such action should
      be imposed by the Congress by law.
               *        *        *         *       *

         So leaving these two paragraphs in does not change the
      law. It simply clarifies the law. This does not change any
      existing controls on food and medicine or medical sup­
      plies. We simply say in effect that under this act the
      President cannot impose total embargo and he cannot
      impose economic controls of that character.
Id. at 774-75. Representative Bonker of Washington agreed:
        I would like to associate myself with the chairman’s
      remarks, and retain for Congress the right to have full
      authority over controls. . . .
      . . . [TJhere are many situations where we disagree to­
      tally with the political makeup of the government for
                                     812
       whatever reasons, but yet this does not totally preclude
       our humanitarian commitment. I think in Southeast Asia,
       for instance, the Red Cross is supplying medical assistance
       and certain items for relief and for humanitarian purposes.
       So I think that the proposed change would impose unwar­
       ranted restrictions on our humanitarian commitment, even
       though we may disagree totally with the political makeup
       of particular countries. For these reasons I would have to
       oppose the amendment.
Id. at 775.
  At this point, Director Root again explained the Administration’s
position:
          Mr. Chairman, as you know, the administration op­
       posed both subsections (0 and (g) in testimony before
       your subcommittee earlier this month, largely for the rea­
       sons which Mr. Lagomarsino presented. With respect to
       subsection 6(0 we did indicate, and this addresses Mr.
       Bonker’s point on humanitarian shipments, that we could
       accept language which was comparable to that now ap­
       pearing in the International Emergency Economic Powers
       Act, which would read somewhat along the following
       lines:
       This section does not authorize export controls on dona­
       tions of articles such as food, clothing, and medicine,
       intended to be used to relieve human suffering, except to
       the extent that the President determines that such dona­
       tions are in response to coercion against the proposed
       recipient or donor.
Id. at 775. Again, it is clear that § 6(0 was understood to exclude
entirely medicine and medical supplies, and, at the time, food, from
controls under the Export Administration Act. The only change sought
and obtained was express recognition that the President’s emergency
powers continued.
   We recognize that our interpretation that the second sentence of
§ 6(0 explains but does not limit the first is not without its own
difficulties. If an absolute exclusion results from the first sentence,
Congress did not have to specify its intent in the second sentence.
Moreover, if an absolute exclusion results, Congress did not have to
specify the situation in which controls would be precluded, that is,
when the principal effect of the exports would be to help meet basic
human needs. But the tension noted above between the first and second
sentences of § 6(0 precludes an interpretation free of all difficulties; and
on balance we find that the problems with interpreting the second
sentence as an explanation are less significant than are the problems
                                    813
with interpreting it as a limitation. First, as to the consequence that the
statement of intent in the second sentence is rendered superfluous, the
alternative would render superfluous the first sentence or at least its
seemingly absolute character. If we must choose between the two, we
should choose an interpretation that preserves that operative language
of the statute even though it sacrifices the language of general intent.
Second, as to the consequence that the second sentence would require a
determination of the principal effect of the export that is irrelevant if no
controls on medicine or medical supplies are authorized, we would
offer the following saving interpretation.

     II. By Whom Are the Determinations of Exclusion To Be Made

   Initially, we should say in answer to your third question, namely,
who is to make the determinations of exclusion, that § 6(0 confers upon
the President the authority to make the determinations required under
the subsection; or he may delegate his power, authority, and discretion
under § 6(0 in accordance with the delegation provisions of § 4(e) of
the Act, 50 U.S.C. App. § 2403(e). Because of our interpretation that
§ 6(0 imposes an absolute exclusion from controls on medicine and
medical supplies, it remains to be discussed just what determinations
§ 6(0 requires or allows the President or his delegate to make.

                    III. The Meaning of the Exclusion

   As we have interpreted § 6(f), medicine and medical supplies are
absolutely excluded from controls on the ground that they are neces­
sary to help meet basic human needs or at least that Congress thought
so. A finding that the two standards are coterminous, however, leads to
the further conclusion that the discretion conferred upon the President
under § 6(0, although literally phrased as the determination whether
the principal effect of exports would be to help meet basic human
needs, is in fact the discretion to determine whether the exports are
medicines or medical supplies. This interpretation avoids so far as
possible a construction of the second sentence of § 6(0 as conferring
discretion that cannot be exercised while at the same time not validat­
ing the exercise of discretion where it was not intended. The interpreta­
tion has the additional benefit of changing the definitional focus from
the vague concept of “help[ing to] meet basic human needs” to the
more concrete categories of “medicine or medical supplies.”
   This brings us to your second question. In the event that we found
the scope of the exclusion limited by the standard of basic human
needs, you asked what was meant by that phrase. In light of our
conclusion that the exclusion is not so limited, the question is no longer
pertinent. Instead, the appropriate standard of reference is “medicine or
medical supplies.”
                                    814
   As noted above, the Act does not define “medicine or medical
supplies”; nor does the legislative history provide any guidance, except
the general humanitarian sentiments expressed. But we have previously
recognized that the Act provides the President great discretion and
flexibility. In the absence of a definition specifically confining this
general authority, the President may utilize his authority to the utmost
extent and identify the contours of the exclusion subject only to the
limitations imposed by humanitarianism suggested by the concept of
basic human needs.1
                                                            L eo n U lm an
                                             Deputy Assistant Attorney General
                                                 Office o f Legal Counsel




   1    In a m em orandum opinion o f today's date for the D eputy Counsel to the President, w e conclude
that the exem ption o f exports from dom estic standards under the Federal F ood, D rug, and C osm etic
A ct, 21 U.S.C. § 381(dXO* and o th e r statutes controlling hazardous substances does not preclude the
imposition o f export controls for foreign policy purposes. In light o f that conclusion, the scope o f the
exclusion for “ m edicine o r m edical supplies’* need not be defined by reference to the reach of
regulatory authority under the Food, D rug, and C osm etic A ct. Indeed, w e note that in the pursuit o f
health and safety under that A ct, a regulatory scope significantly bro ader than a standard o f "basic
hum an needs” might be appropriate. [ N o t e : T h e text o f the M em orandum O pinion for the D eputy
Counsel to the President im m ediately precedes this opinion, at p. 802. Ed.]

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