JOHANNA REEVES, ESQ.
It seems like only yesterday, but more than a year has passed since the Trump Administration published a Notice of Proposed Rulemaking to adjust U.S. export controls over commercially available firearms and ammunition. The proposed regulations would revise the International Traffic in Arms Regulations (ITAR) and the State Department’s control list known as the United States Munitions List (USML) to remove most firearms and ammunition and other articles from the USML and place them into the Commerce Department’s Commerce Control List (CCL) and the export controls known as the Export Administration Regulations.
The proposed rewrite of USML Categories I, II and III is a rightsizing of U.S. export controls and would continue a reform process that was spearheaded by the Obama Administration and termed Export Control Reform or ECR. According to President Obama in a speech before the World Bank in 2010, the purpose of ECR was to “concentrate our efforts on enforcing controls on the export of our most critical technologies, making America safer while enhancing the competitiveness of key American industries.”
To accomplish this, a key component was to bring the control lists in line with the technologies and weapons advancement of the 21st century. Those articles and data that provide the United States with a critical military or intelligence advantage or, in the case of weapons, are inherently for military end use would be left on the USML. Conversely, items no longer warranting control under the ITAR would be transitioned to the Commerce Control List and be subject to the licensing provisions of the U.S. Department of Commerce, Bureau of Industry and Security.
Although USML Categories I, II and III are the last USML categories to go through the revision process, they were among the first categories the Obama Administration drafted for transition when it rolled out ECR back in 2010. Since then, all other USML Categories have been officially revised, some with multiple amendments, while Categories I, II and III have been stuck in limbo.
We did get close earlier this year in February, however, when the State Department, nine months after publishing the proposed transition rules, formally notified Congress of the revisions to the USML, as required under Section 38(f) of the Arms Export Control Act. Unfortunately, the Democratic ranking member on the Senate Foreign Relations Committee placed a hold on the State Department implementing the Categories I–III rewrites (reviewed in more detail below), and so here we sit; another year gone, with no changes to the export controls.
Why? Politics.
Obviously, any rewrite of the USML has nothing to do with domestic firearm policy. It would, however, impact international trade and may enable U.S. manufacturers and exporters to compete more effectively in the global marketplace (a transition to Commerce Controls may help U.S. companies avoid the stigma of so-called “ITAR-taint” that prompts many of our allies to require “ITAR-free” products in their Requests for Proposals).
The fact that the proposed revisions would have no effect on domestic gun control was completely lost (or ignored) by the gun control activists and lobbyists, who immediately whipped up in a frenzy shrieking the revisions would result in a decontrol of dangerous assault weapons (see Small Arms Review, Vol. 22, No.9, “Legally Armed—Export Controls Update: U.S. Government Proposes Transitioning Certain Firearms and Ammunition from ITAR to EAR,” for a detailed review). In reaction to the 38(f) notification, Democratic lawmakers in Washington wasted no time in introducing legislation to bar the State Department from making any changes to the firearms and ammunition categories on the U.S. Munitions List, Categories I, II and III.
Although tempting to dismiss the Democrats’ efforts to derail the rewrite of USML Categories I–III because the Republicans control the Senate and Trump is in the White House, now is not the time to be cocky. Opposition to the proposed transition is fierce, and depending on how the elections go in 2020, time could be running out.
To best fight the opposition, we must first understand the opposition. So, let’s examine the pending legislation and the related developments.
The U.S. House of Representatives
On February 8, 2019, Representative Norma J. Torres (D-CA-35) introduced H.R. 1134, the “Prevent Crime and Terrorism Act of 2019,” to amend the Arms Export Control Act to prohibit the removal of firearms and ammunition under Categories I, II and III of the U.S. Munitions List. This bill has 16 co-sponsors, all Democrats, including Representatives Omar (D-MN-5), Grijalva (D-AZ-3) and Titus (D-NV- 1), but it has not moved out of the Committee on Foreign Affairs. On March 26, 2019, the Oversight and Investigations Subcommittee held a hearing on the proposed transition, titled, “Proposed Small Arms Transfers: Big Implications for U.S. Foreign Policy,” at which yours truly testified in favor of the transition (the hearing is available at https://foreignaffairs.house. gov/2019/3/proposed-small-arms-trans fers-big-implications-for-u-s-foreign-policy.
The bill still sits in Committee, but on July 11, 2019, Rep. Torres was successful in adding to the National Defense Authorization Act of Fiscal Year 2020 (NDAA), Amendment No. 10, which adds the following language to the end of subtitle E of title X of the NDAA:
The President may not remove from the United States Munitions List any item that was included in category I, II or III of the United States Munitions List, as in effect on August 31, 2017.
The Amendment passed with 225 ayes (including four Republican votes) to 205 noes (including 11 Democrat votes). The authorization bill passed the House on July 12, 2019, and now goes to the Senate for consideration. Watch this carefully.
The U.S. Senate
On February 12, 2019, U.S. Senator Bob Menendez (D-NJ), ranking member on the Foreign Relations Committee, was joined by Senators Chris Murphy (D-CT), Ed Markey (D-MA), Ben Cardin (D-MD) and Dianne Feinstein (D-CA) in introducing S. 459, the “Stopping the Traffic in Overseas Proliferation of Ghost Guns Act.” The bill claims the proposed transfer of oversight from State to Commerce would—
(A) Lessen the oversight of the Secretary of State to ensure that such exports comply with United States foreign policy, national security and human rights requirements;
(B) Completely eliminate congressional review of these sales by removing them from the jurisdiction of the Arms Export Control Act (22 U.S.C. 2751 et seq.), which mandates that such sales of $1,000,000 and higher be reviewed by Congress and subject to the introduction, consideration and vote on a resolution of disapproval to reject such sales; and
(C) Facilitate the global dissemination of technical information, including blueprints, of firearms, allowing their easy production with 3D printers.
To prevent all this, the Menendez bill proposes to prohibit the president from removing any firearm, or technical information relating to such firearm, from the U.S. Munitions List and also prohibit the president and the Secretary of State from changing or altering any requirement under the ITAR related to the export of firearms controlled on the U.S. Munitions List.
The bill has gained very little traction, only picking up one additional co-sponsor since introduction (Sen. Richard Blumenthal (D-CT)), and appears to be stalled in the Committee on Foreign Relations. And many in industry are confident that nothing will ever come of these legislative efforts because the Republicans control the Senate.
But Menendez, the Ranking Member on the Senate Foreign Relations Committee, did not stop with just introducing a bill. Later in February he issued a hold to block the Administration from publishing the final transition rules. The State Department’s statutory 30-day notification to Congress regarding the proposed revisions to USML Categories I–III was due to run in early March, after which the Administration would finally be able to publish the final rules to transition commercially available firearms and ammunition from the State Department’s ITAR controls over to the Commerce Department controls. On February 26, 2019, Senator Menendez announced the hold out of “concern about a proposal to drastically weaken firearms export regulations.” In his letter to Secretary of State Mike Pompeo, Menendez explained his reasoning:
Firearms and ammunition—especially those derived from military models and widely used by military and security services—are uniquely dangerous. They are easily modified, diverted and proliferated and are the primary means of injury, death and destruction in civil and military conflicts throughout the world. As such, they should be subject to more, not less, rigorous export controls and oversight.
Menendez stated he would keep his hold in place until the following concerns are “sufficiently addressed:”
- Removal of firearms exports from congressional information and review; and
- Proliferation of 3D Gun Printing Technical Information.
The hold is not legally binding, but it appears to have spurred further discussions between the State Department and Congress. At the time of this writing (August 2019), the final rules still have not published, so all firearms and ammunition (except non-combat shotguns) remain under the controls of the ITAR.
So here we are in the throes of summer 2019 and yet again, nothing has changed regarding the export controls over firearms. The country has just suffered three mass shootings within a single week, so it is very possible the Administration will indefinitely table the transition. It wouldn’t be the first time such action is taken (or not taken) in the wake of this kind of tragedy. And yet, the rumors are circulating once again that the final rules will be published soon …very soon. We’ve heard it before, but only time will tell.
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The information contained in this article is for general informational and educational purposes only and is not intended to be construed or used as legal advice or as legal opinion. You should not rely or act on any information contained in this article without first seeking the advice of an attorney. Receipt of this article does not establish an attorney-client relationship.
ABOUT THE AUTHOR –
Johanna Reeves is the founding partner of the law firm Reeves & Dola, LLP in Washington, DC (reevesdola.com). Since 2003 she has dedicated her practice to advising and representing U.S. companies on compliance matters arising under the federal firearms laws and U.S. export controls. Since 2011, Johanna has served as Executive Director for the Firearms and Ammunition Import/Export Roundtable (F.A.I.R.) Trade Group (fairtradegroup.org). She has also served as a member of the Defense Trade Advisory Group (DTAG) since 2016. Johanna can be reached at jreeves@reevesdola.com or 202-715-9941.
| This article first appeared in Small Arms Review V23N9 (Nov 2019) |
