Batman v. Superman and Import Licenses

(Lawrence M. Friedman is a partner at Barnes, Richardson & Colburn, LLP and an adjunct professor at the John Marshall Law School’s Center for International Law.  He is also the author of the Customs Law Blog and a previous guest poster here at Law and the Multiverse.)

Heading into Batman v. Superman: Dawn of Justice, I had some trepidation mixed with anticipation. You’ll have to judge the movie for yourself. My short review is that it is filled with great fan service and universe building, but continues to mistreat Superman as a character. To make up for that, Wonder Woman is great and Ben Affleck is perfectly good in the cowl and cape. That’s all I will say on the quality of the movie. What about the legal issues?

Very early in the movie, it becomes clear that Lex Luther and Lexcorp could use my professional help. Explaining why requires at least a minor spoiler. Consider yourself warned.

Following the events of Man of Steel, it becomes obvious to Lex Luther that kryptonite might be a useful tool to combat Superman and potentially other Kryptonians. One of his scientific henchmen, listed in the credits as Emmet Vale, finds a sizeable chunk in the Indian Ocean. As a side note, the existence of a potential “Professor Vale” in this universe is not good news for Superman. As a plot device, Luther realizes that he needs an import license and begins lobbying a Senator played by Holly Hunter for permission to import the kryptonite.

As a customs and trade lawyer, I may have been the only person in the theater to sit up just a little when I heard that. I lost the next couple minutes wondering to myself whether that would, in fact be true. Would Lexcorp, or any other legally compliant importer, need any kind of license to import a chunk of Kryptonite?

There are not too many products that are completely inadmissible into the United States. Customs and Border Protection draws the distinction between prohibited merchandise, which can never be legally imported, and restricted merchandise, which can be imported if the proper process is followed. Prohibited merchandise includes products made of dog and cat fur, 19 USC § 1308, switchblade knives, 15 USC § 1242, products of convicts or forced labor, 19 USC § 1307, and other items.

Restricted merchandise is a much broader category of products. Often, restricted merchandise is subject to the regulation of other agencies and Customs’ role is limited to enforcing those laws and regulations at the border.

What about a large chunk of kryptonite?

Section 13 of the Toxic Substances Control Act (TSCA) regulates the importation of chemicals. To import chemicals, an importer must certify either that the product is not subject to TSCA or complies with the law. Exceptions to TSCA include food, drugs, cosmetics, chemicals included in larger articles, and pesticides. Although Lex Luther might say kryptonite is a pesticide, Kryptonite does not appear to fall into one of these categories. As a result, Lexcorp would need to certify that the importation complies with TSCA. Given that it is very unlikely that kryptonite is already in the EPA’s TSCA inventory of chemicals, Lexcorp is going to have to find an exception under which it can certify the product as complying with the law. Given the size of the chunk of kryptonite shown in BvS, it seems unlikely that the low volume, low release exceptions will apply.

Lexcorp’s best option might be the research and development exception of 40 CFR § 720.36. This still requires that the amount imported be small and it also requires notice to employees of the risks associated with the chemical. Given that kryptonite has no apparent negative consequences for humans, that appears possible. But, at the point in time depicted in the movie, it is not clear that the full consequences of human exposure to kryptonite are known. Lexcorp should be careful about that.

On a related front, if Lexcorp is able to import kryptonite, it may have to contend with the Hazardous Substance Act, which regulates, among other things, the labeling and packaging of hazardous materials. Again, based on what we see in this movie and 75 years of Superman lore, it appears that kryptonite may not be hazardous to humans. So, this may not be an issue.

A bigger problem for Lexcorp may be that it appears kryptonite is radioactive. Many sources of radiation including uranium, thorium, and plutonium are subject to regulation by the Nuclear Regulatory Commission. Importing these products requires a license. See 10 CFR Part 110. The NRC regulations require import licenses for “source material” and “special nuclear material.” A source material is natural or depleted uranium or thorium or ores containing concentrations of uranium or thorium. So, that does not seem to be a problem. Special nuclear material includes plutonium, uranium-233 or uranium enriched above 0.711 percent by weight in the isotope uranium-235. Still not a problem for kryptonite.

What might be a problem is that the NRC also requires a license for the importation of “nuclear byproducts.” These are defined as:

Any discrete source of naturally occurring radioactive material, other than source material, that—

(i)  The Commission, in consultation with the Administrator of the Environmental Protection Agency, the Secretary of Energy, the Secretary of Homeland Security, and the head of any other appropriate Federal agency, determines would pose a threat similar to the threat posed by a discrete source of radium-226 to the public health and safety or the common defense and security; and

(ii)  Before, on, or after August 8, 2005 is extracted or converted after extraction for use in a commercial, medical, or research activity.

Given that Lexcorp wants the kryptonite for research purposes, this might require a license if there is a risk associated with it that is on par with the risk of exposure to radium-226. As far as we know, this is not the case for humans, though it is the case for Kryptonians. Assuming the U.S. government regulates for human public safety and not for the safety of one (or possibly a few) Kryptonians, there still does not appear to be any need for an import license.

That brings us to the fact that Lex Luthor wants this material to build a weapon to fight Superman. Arms, ammunition, explosives, and implements of war are prohibited importations unless licensed by the Bureau of Alcohol, Tobacco, Firearms and Explosives. As a general rule, ATFE licenses the permanent importation of products and materials that are specially designed or modified for military applications and that fall into the categories defined in the United States Munitions List. Scanning the list, it is hard to find a category into which raw kryptonite would fall.

Based on this analysis, I might be willing to write Lexcorp an opinion letter stating that it does not need a license to import the kryptonite, though it appears it will need to comply with TSCA. As far as we can tell, raw kryptonite is not harmful to humans and would, therefore, be regulated similarly to other benign minerals, once it is added to the EPA’s TSCA inventory. For importers, that means it is likely classified in the Harmonized Tariff Schedule as an “other mineral” not elsewhere specific. The classification would be 2530.90.8050 and it would be duty free. I’m sure Lexcorp would consider that to be good news.