Hypotheticals for Administrative Law

21 January 1998

Hypo 1

The Arms Export Control Act ("AECA"), 22 U.S.C. § 2778 provides:

"[a](1) In furtherance of world peace and the security and foreign policy of the United States, the President is authorized to control the import and the export of defense articles and defense services and to provide foreign policy guidance to persons of the United States involved in the export and import of such articles and services. The President is authorized to designate those items which shall be considered as defense articles and defense services for the purposes of this section and to promulgate regulations for the import and export of such articles and services. The items so designated shall constitute the United States Munitions List." [The President delegated his functions to designate items and services subject to control to the Secretary of State, with the concurrence of the Secretary of Defense. ]

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"(c) Criminal violations; punishment

Any person who willfully violates any provision of this section or section 2779 of this title, or any rule or regulation issued under either section, or who willfully, in a registration or license application or required report, makes any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, shall upon conviction be fined for each violation not more than $1,000,000 or imprisoned not more than ten years, or both."

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"(f) Periodic review of items on Munitions List

The President shall periodically review the items on the United States Munitions List to determine what items, if any, no longer warrant export controls under this section. The results of such reviews shall be reported to the Speaker of the House of Representatives and to the Committee on Foreign Relations and the Committee on Banking, Housing, and Urban Affairs of the Senate. Such a report shall be submitted at least 30 days before any item is removed from the Munitions List and shall describe the nature of any controls to be imposed on that item under the Export Administration Act of 1979 [50 App.U.S.C.A. § 2401 et seq.]"

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"(h) Judicial review of designation of items as defense articles or services

The designation by the President (or by an official to whom the President's functions under subsection (a) of this section have been duly delegated), in regulations issued under this section, of items as defense articles or defense services for purposes of this section shall not be subject to judicial review."

Pursuant to the AECA, the Secretary of State promulgated the International Traffic in Arms Regulations ("ITAR"). ITAR Section 121.1 lists controlled "defense articles" and is called the United State Munitions List.

In addition to the "defense articles" specifically included on the Munitions List, ITAR 120.9(1) and (2) define "defense services" as (1) "[T]he furnishing of assistance (including training) to foreign persons" with respect to a "defense article," and (2) "[t]he furnishing to foreign persons of any technical data controlled under this subchapter, whether in the U.S. or abroad."

Encryption systems, software and algorithms are included as "defense articles" on the Munitions List. ITAR 121.1.

Hypo 2

47 U.S.C. § 101a:

"The Federal Communications may issue rules requiring providers of information and communications services to use such protocols or standards as the Commission determines will promote realization of the vision of a Global Information Infrastructure or "Information Super Highway."