Subject:		                                         Date:
      H.R. 40                                     		15 Apr 1983



To:			
Robert A. McConnell
Assistant Attorney General
Office of Legislative Affairs		

From:
Larry L. Simms
Deputy Assistant Attorney General
Office of Legal Counsel

  Attn: Jack Perkins

Attached please find a letter to Chairman Zablocki of the House 
Foreign Affairs Committee, which we prepared for your signature, 
presenting comments on H.R. 40, a bill that would "authorize" the 
President to prescribe regulations for protecting arms information 
from the risk of indiscriminate export."  We received substantive 
comments on this legislation from the Criminal Division and the 
Office of Intelligence Policy and Review, both of which oppose the 
bill.  The FBI also submitted a comment to us stating that the 
proposed legislation would have no effect on FBI operations.

I attach copies of the comments provided by the Criminal Division 
and OIPR for your review, because our comments differ from theirs 
in two respects, although we concur that the Department should 
oppose the legislation. First, both the Criminal Division and OIPR 
suggest that the authority that would be provided by H.R. 40 may be 
duplicative of existing authority in the Arms Export Control Act that 
has been used as a statutory basis in the past for the International 
Traffic in Arms Regulations (ITAR). While we agree that the subject 
matter of the ITAR and H.R. 40 overlap, we have in the past noted 
that the statutory authority provided in the Arms Export Control Act 
for regulation of information exchanges is not entirely clear, and 
therefore we have suggested the possibility of clarifying legislation. 
See Memorandum for William B. Robinson, Office of Munitions 
Control, Department of State, from Theodore B. Olson, Assistant 
Attorney General, Office of Legal Counsel (July l, 1981) at 11 n.7. In 
accordance with that view, we suggest in the attached letter that the 
Department of Justice might support appropriately narrow legislation 
to authorize such controls. Second, OIPR concludes in its comments 
that H.R. 40 is not constitutional because any regulations that could 
be issued under the bill would probably not remedy its significant 
overbreadth.  We believe that, although the constitutional questions 
are substantial, the bill would be constitutionally defensible if the 
implementing regulations were drawn to cover only constitutionally 
permissible applications.


Attachments

cc:  A.R. Cinquegrana
     Deputy Counsel for Intelligence Policy
     Office of Intelligence Policy and Review

     D. Lowell Jensen
     Assistant Attorney General
     Criminal Division