Forming a Hazardous Export Policy

The interview was conducted by the Monitor's Ronald Brownstein at Harris' Washington, D.C. office.

MULTINATIONAL MONITOR: You've been studying the problem of hazardous exports since the summer of 1978. Why has the process taken so long?

ROBERT HARRIS: ithink it's because we're trying to do this without any clear statutory mandate to do it. It's discretionary, completely discretionary and of course there is a legal question as to whether or not what we're proposing to do is legally authorized under the Export Administration Act to begin with.

There may be a legal challenge to it. There have been informal legal challenges through the conversations we've had with the industry, particularly with the pharmaceutical industry. But we did get a legal opinion from the Justice Department that said, "Yes, we could use the Export Administration Act to do this." We have so many non-discretionary programs to implement and regulations to develop . . . that unfortunately there's not very much time left over to do creative work which the Congress hasn't specifically directed the Executive Branch to do.

MONITOR: Are there any other reasons?

HARRIS:-The second problem is that it's a fairly complex area. There's just a tremendous amount of products obviously that are being exported from the United States. For example, there are medical devices that wouldn't be allowed to be sold here, yet for Third World countries might be perfectly acceptable. Because [for them]. to have a registered X-Ray machine which would be suitable for sale in the United States would be extraordinarily costly. There are cost-benefit issues and decisions in Third World countries that would demand a lower quality product than we might sanction or the public might demand-if there is such a thing-in the United States.

The question is how to fashion a policy that really goes after those products that aren't useful to begin with. Dieldrin, for example, is an extraordinarily toxic pesticide and furthermore it doesn't work. It never was shown to be efficacious in the United States, so it would be outrageous to export that particular product for the same uses for which it was being placed in the United States.

Secondly you want to deal with products that even if they are useful, there are far safer alternatives. So it's not a matter of economics, or cost-benefit analysis or those types of trade-offs.

MONITOR: Do you foresee final action of any kind by the Administration before you leave?

HARRIS: Yes. We could by Executive Order set up this interagency task force and direct it to develop a list of hazardous substances for inclusion on the Commodity Control List.

MONITOR: Do you expect that will actually be done?

HARRIS: Yes.

MONITOR: Do you have any sense of. how the Reagan Administration will implement this policy?

HARRIS: I think that to the extent that industry is successful in convincing the Reagan Administration that this policy might be an impediment to our exports, to our economy, they might find a receptive ear. Frankly, I think they have a hard case to prove, because I think the policy has been developed and defined in such a way that there is a relatively small universe of products that would fall under it and eventually, possibly, be regulated.

MONITOR: How large might that universe of products, be?

HARRIS: I think that it's maybe a few hundred products and chemicals at the most . . . Certainly I would think less than 500 and probably more than 100. Out of that I would be surprised if more than a dozen or so would be chosen for the Commodity Control List initially. In the beginning the incentive would be not to overburden it, not to include so many products and chemicals that it becomes very difficult and unwieldy to deal with, given the fact that there's no real staff" and structure set up to handle it. They're going to have to develop that as they go. The incentive would be to get the really bad actors first and see hove successful they are in negotiations with foreign countries before a decision is made.

It can't be overlooked that even if the decision is to allow the export, the importing country will be appraised and - forced to assess the likely risks associated with importing that particular product.

And indeed if export does occur, the country will have been more intimately involved in the decision-making process relative to that product coming into the country.

Even for something that appears to the State Department to represent an extraordinarily high risk, if that country is persistent and goes publicly on the record as wanting desperately that product, it still may be exported, and that would be a difficult decision for the State Department to make to disallow that product to be exported. In some cases when it's available from lots of other companies the decision might be made to go ahead with the export.

MONITOR: Some groups say that's a double standard. That what we're saying is that what isn't allowed for use here, is too dangerous to be used here, can be used abroad. Do you see any validity in that argument?

HARRIS: It depends. In the abstract, I see some validity to it. But you have to ask the question on a case by case basis before I could agree to that . We have a different standard here, a different standard of living, a different concept of what's an acceptable risk and what's an unacceptable risk. I mean, we're now talking about in this country the risks of chlorination of drinking water and trying to pump resources, money, into water treatment methods that would reduce that risk. Well, in a country where waterborne disease is rampant and where a lot of other social problems are considerably greater than they are in this country, it is not at all inconceivable to me that they would want to allocate their resources in a different direction. In facts they may want to encourage even more chlorination even recognizing that it has side effects like the production of carcinogens, because their average lifespan may only be 35 years and the cancer rate is extraordinarily low because people never grow old enough to get cancer.

In a sense because of our increased living standard we have a luxury of being able to worry about some effects of chemicals that are primarily long-term effects. I think other types of pesticides and medical devices and other things that are unacceptable to us here might indeed be acceptable there because the cost of the alternatives may be so much higher that they can, better use those resources, those extra costs to more advantage. I don't see what's wrong with that.

MONITOR: Both parts of the proposal rely very heavily on notification. Is it your feeling that these countries uniformly have the expertise, have the size, the bureaucracy to really handle this information and make a good judgement?

HARRIS: No, I think in many cases they don't. A lot of countries, particularly small Third World countries, may not have anyone, or at most they may have one person who's the Health Minister and-there's nobody in the office. They've got extraordinarily complicated background material on Leptophos or some other pesticide_ and they really don't have the capability [to evaluate it] .

I would hope in situations like that they would defer to our judgment and not create an incident over wanting a product. In many many cases where there are alternatives, where the effectiveness of the product is really in question-as many pesticides are-that the mere openness of the process-that is, the State Department notifying and exposing the likely import publicly and to the government of the importing country-will not be met with resistance, it will be met with concurrence.

MONITOR: Presumably, though, these countries will be hearing from the other side. And if some company has a big sale on the line, then the country is going to have to deal with conflicting evidence that they may not have the time or ability to judge.

HARRIS: That's where the rub comes in. If you have a chemical, say a chemical pesticide, where one side is saying it's not efficacious and the manufacturer is saying that it is, where the data may be ambiguous, where there is cancer evidence, or other health evidence, that led to its banning or failure to register-in other words an application was made for registration and denied- -and you have the manufacturers bringing their case to the government.

Then it has to be a call by the State Department and the Commerce Department with this task force advising them, as to whether or not it's in the best interest of the United States to allow that export. And I think that if the evidence is fairly clear that the same sort of harm is likely to occur in the country as led to the [regulatory action in 0e U.S.] then the only humanitarian thing to do, the only responsible thing is to ban the export.

But it does become a very difficult thing to do because, in a sense, whether it's an explicit detailed cost-benefit analysis-which it's probably not going to be--still implicit in `the process is that the Environmental Protection Agency, if it's a chemical that falls under their jurisdiction, the State Department and the Commerce Department are making some judgment about the cost-benefit equation in the country that's importing it. Hypothetically, I could see an example of a chemical or product that might have certain benefits disproportionate to costs in some Third World countries ;in comparison to the United States.

MONITOR:-What kinds of products?

HARRIS:-Let's say pesticides meant for tropical diseases where you're fighting vectors that don't exist in this, country, for example. Are we supposed to have the EPA go and do tests on whether or not a whole range of pesticides are efficacious for a particular disease that doesn't even. exist in this country? The information available may be inadequate to make a judgment. So this other country is saying, or the agents of the company involved speaking essentially on behalf of the other country are making arguments that we need this pesticide because if you don't give it to us we're going to have even more widespread starvation. It may be fairly difficult for us here, sitting over here, to make that judgment. I hope that's a rare, and I would anticipate that would be, a rare occurrence.

MONITOR: With pesticides, though, there is a large,, steady traffic in either unregistered or banned products; the GAO estimates up to a third of the total export market. It seems to be more of an ongoing issue. The pesticide manufacturers argue that even notification places an unfair stigma on the product, unfairly penalizes American producers.

HARRIS: That's nonsense. I think that we have a moral obligation in this country to make information available. When you start filtering information or withholding it from the public because of alleged penalties that some manufacturers may sustain in a competitive marketplace with other products that may not be so stigmatized because other countries are not so responsible, that's a problem for the manufacturer, not the government of the United States.

MONITOR:: What role do you see for international consumer groups in preventing hazardous exports?

HARRIS:: International consumer groups, I think, can play a very important role in publicizing the likelihood of the export of a hazardous substance. Obviously as well, the groups can play an important role in prodding foreign governments in recognizing the consequences of importing some of the more hazardous products.

MONITOR: Do you believe attempts to export banned products should be made public?

HARRIS: Any attempt to export a substance that might be placed on the Commodity Control List should be immediately made public ...either through a press release ...and/or publication of the information in the Federal Register.