180. Letter From the Assistant Secretary of State for Economic Affairs (Solomon) to Representative Craig Hosmer1

Dear Congressman Hosmer:

Your letter of February 172 refers to the recent decision of COCOM relating to the export of nuclear power reactors to Soviet bloc countries and raises certain relevant questions pertaining to Battle Act administration.

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You are quite correct in your understanding that the effect of the transfer from Category A to Category B of Title I is to make it possible for the President to exercise discretion under Section 103(b) in determining whether or not to continue aid in the case of a power reactor sale by an aid-recipient country to a Communist bloc country, whereas termination of aid is mandatory with respect to Category A. Your questions relate to whether the determination to transfer the items in question from Category A to Category B of Title I contravenes the general policy underlying the Battle Act and whether the President may properly invoke the exception to the Battle Act’s termination-of-aid clause in Section 103(b) in the case of a power reactor sale by an aid-recipient nation to a Communist bloc country. It is our view that the Title I listing determination taken, including its implications for the President’s authority under Section 103(b) to continue aid, is in accordance with the provisions of the Battle Act. Moreover, similar decisions have been made in the past and have been reported to the Congress. I believe the following explanation will be helpful to you in understanding the reasons for our conclusion.

In the administration of the Battle Act, and in working out the international control lists under the Act, the key judgment which Congress entrusted to the Battle Act Administrator was whether particular items should be embargoed for purposes of the Act.

Section 103(a) of the Battle Act (22 U.S.C. 1611b) provides, in pertinent part, as follows (underlining added):3

“The Administrator is hereby authorized and directed to determine within thirty days after enactment of this Act … and notwithstanding the provisions of any other law, which items are, for the purpose of this Act, arms ammunition, and implements of war, atomic energy materials, petroleum … and those items of primary strategic significance used in the production of arms, ammunition, and implements of war which should be embargoed to effectuate the purposes of this Act: Provided, That such determinations shall be continuously adjusted to current conditions on the basis of investigation and consultation … .”

Section 103(a) of the Battle Act uses two phrases which make clear that the categories of items listed in that section are inherently qualified. They must be (1) items which “for the purpose of this [Battle] Act” are arms, ammunition, and implements of war and the like, and (2) items “which should be embargoed to effectuate the purposes of this [Battle] Act”.4

The purposes of the Battle Act are perhaps most succinctly expressed in its long statutory title, i.e., “An Act to provide for the control by the United States and cooperating foreign nations of exports to any [Page 514] nation or combination of nations threatening the security of the United States, including the Union of Soviet Socialist Republics and all countries under its domination, and for other purposes.” The key words are “control” and “cooperating foreign nations”. These statutory words show that the Congress had in mind not absolute, unilateral embargoes but an international cooperative program of control. In this cooperative control program, as the Congress was aware, the United States necessarily would have a variety of objectives and means to pursue these objectives.

H.R. 4550 (82d Cong., 1st Sess. 1951) was the bill which, with some amendments not relevant here, became the Battle Act. In the House Foreign Affairs Committee report on H.R. 4550, the complex nature of our objectives in controlling exports to Russia was discussed, and the report made the following comment:

“In order to carry on strategic operations of this nature it is essential that the executive branch be given a considerable degree of discretion and it is clear that legislation prohibiting broad categories of exports might prevent the attainment of these objectives.” (H. Rep. 703, 82d Cong., 1st Sess. July 16, 1951, p. 12)

We have reviewed Senate Report No. 698 on the same bill, which was referred to in your letter, and find nothing inconsistent with either this statutory statement of purpose or this recognition of executive discretion. Section 101 of the Battle Act, which elaborates the statement of purpose, states that the objective of controls, so far as the USSR and its satellites is concerned, is to impede the ability of such countries “to conduct military operations”.

We have therefore concluded that the Act was not intended to require the embargo of items which would not contribute to the military capability of Sino-Soviet bloc countries, even though they might contribute to the industrial strength of a country. This conclusion is consistent with the views of previous Administrators of the Act and is supported by practice. The periodic Battle Act Reports to the Congress provide evidence of the selective listing of items under the Act, of periodic changes in accordance with Section 103(a), and of the movement of items from Category A to Category B of Title I.

The Battle Act’s embargo provisions went into effect on January 24, 1952, and the published reports thereafter included information on the embargo lists, how they were established, and how they are maintained. There are two lists under Title I of the Battle Act. The Title I, Category B list originally included 263 item listings, of which one was petroleum products and equipment for producing them. By the time of the second Battle Act Report, sixteen new item listings had been added and fifteen original listings broadened. The specific item listings in Category B were [Page 515] classified for security reasons, but the report could identify the added listings in general terms. (“Problems of Economic Defense”, 2d Report to Congress on the Battle Act, January 1953, pp. 7 and 8)

By the time of the fourth Battle Act Report, the decision had been made not to pursue an extension of the control lists to many other items but to recognize the need for simplifying the lists and removing or downgrading items which were no longer considered so important. (“East-West Trade Trends”, 4th Report to Congress, May 1954, pp. 46 to 48) The results of this reappraisal were announced in a press release on August 25, 1954; there was a reduction in the embargo item listings from 297 to 217, and many of the 217 items were redefined so as to split off less important sizes and types of goods covered by the item. (“The Revision of Strategic Trade Controls”, 5th Report to Congress, November 1954, pp. 39–42)

The same process, of course, was carried out for Category A items. Thus, in the 1958 Battle Act Report, revisions in the Category A list were announced in the following terms:

“Some new items … embodying recent technological and scientific advances, and whose strategic significance had increased since the 1954 revision, were added. Other items were deleted because of a corresponding decrease in their strategic importance.” (“The 1958 Revision of East-West Trade Controls”, 12th Report to Congress, April 20, 1959, pp. 4–5)

In the unclassified Category A list printed in this report, it was noted, for example, that some changes resulted in the deletion of items from the atomic energy material listing under Category A and the incorporation of those items in the classified Category B list (page 12). These changes were of the same type as those about which you have inquired.

This legislative history and reported practice make clear that there is no statutory distinction between Category A and Category B of Title I in terms of the determination of whether an item should be embargoed for the purposes of the Act. In determining whether or not an item shall be considered an “atomic energy material” for the purpose of the Act, the Administrator considered that the application of IAEA safeguards would give reasonable assurance that the materials would be devoted to peaceful uses only and that the shipment would therefore lack the strategic element to which the Battle Act restrictions were addressed. It follows, therefore, that the Administrator acted in accordance with the listing authority of the Act in removing those materials from Category A to Category B, because they still remain covered under Title I. Whether or not the President decides to continue aid to a country selling such a Category B item to a Communist bloc nation will depend upon the circumstances of the particular case.

For the reasons I have set forth in detail above, I consider that the modification in Title I treatment of civil research and power reactors, [Page 516] major components thereof, and fuel and moderators therefor is in accordance with the purposes of the Battle Act and appropriately furthers the United States policy of discouraging nuclear weapons proliferation and encouraging peaceful uses of atomic energy.

May I add that if you have any remaining questions on this matter, please let me know. We and the Atomic Energy Commission people would be glad to meet with you or other members and staff of the Joint Committee in order to be certain that there is full understanding of our actions under the Battle Act and in COCOM concerning nuclear power reactors subject to IAEA safeguards. We have done this previously, as you know, both through informal discussion and in letters to the Chairman, and we would like to be sure that no area of misunderstanding remains.

Sincerely yours,

Anthony M. Solomon 5
  1. Source: Department of State, Central Files, STR 13–1. No classification marking. Drafted by Wright (E/EWT) and Knute Malmborg (L/E) on March 1 and cleared in draft by Joseph A. Greenwald (E/ITED), Nelson F. Sievering, Jr. (SCI), Mark J. Garrison (EUR/EE), and Alexander Schnee (H). An attached February 21 note from an E Staff Assistant to Wright requested an appropriate reply to Hosmer’s letter for Solomon’s signature. A handwritten notation at the top of the source text reads: “Because of urgent nature of the response, the original was handcarried to addressee on 3/4/66.”
  2. Attached but not printed.
  3. Printed here as italics.
  4. Brackets in the source text.
  5. Printed from a copy that bears this typed signature.