On May 24, 2018, the Departments of State and Commerce published proposed revisions to U.S. Munitions List (USML) Categories I, II, and III in the Federal Register. These three categories would be the last USML categories to be revised under the Export Control Reform Initiative – a process that began more than nine years ago and that we first blogged about here. Public Comments to the proposed revisions were solicited and required to be submitted within 45 days. From that point forward, once the final language of the revisions were accepted and approved, the President would notify Congress and the Final Rule outlining the changes would be published.
So what has happened since then? Rumors have abounded. Some in the trade community believed the end of 2018 was a target date for publication. Others thought the announcement would be made in January 2019. Some even believed the administration might implement the changes to coincide with the Shot Show – one of the firearm industry’s largest trade shows (which occurred this year from January 22-25). None of these things occurred.
In the meantime, Congress is not waiting to be notified by the President on the Final Rule. There have been two legislative initiatives to stop the transition of items from the USML to the CCL:
- “Stopping the Traffic in Overseas Proliferation of Ghost Guns Act” (no H.R. number assigned yet)
Specifically, this legislation would:
- Prohibit the transfer of small arms/light weapons, and the technical manufacturing information related to them (including 3D printed guns), to the Department of Commerce;
- Maintain the statutory restriction on publishing 3D printed gun information, including over the internet;
- Prohibit the ability of the State Department to suspend the International Traffic in Arms Regulations (ITAR) without 30-day prior notice to Congress.
- “Prevent Crime and Terrorism Act of 2018” (H.R.4765)
This bill would amend the Arms Export Control Act to prohibit the President from removing any of the following items under USML Categories I, II, or III (firearms, armament, ammunition) in order to transfer them to the Commerce Control List:
- Significant Military Equipment or their components, parts, or accessories;
- Flame throwers designed or modified for military application; or
- Devices for launching or delivering ordnance.
More recently, a senior Senator has blocked the proposed Final Rule, citing that the transition of these designated items would deny Congress oversight on export transactions meeting certain levels and increase the risk of military-grade weapons falling into the hands of terrorists. The proposal to block the proposed Final Rule is not legally binding, but it will establish another area of confrontation between the President and Congress if the President decides to proceed with the publication of the Final Rule and the notification to Congress.
At this point, the date for the transition of items currently classified as ITAR controlled is mere guesswork. That said, increased Congressional activities over the past few weeks would indicate action is either not far off, or will be delayed for some time.
Jim McShane is a Sr. Consultant, Trade Compliance for Export Solutions -- a full-service consulting firm specializing in ITAR and EAR regulations.