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Senators Seek to Clamp Down on U.S. Arms Exports Senators Seek to Clamp Down on U.S. Arms Exports

Senators Seek to Clamp Down on U.S. Arms Exports

On April 30, 2021, Senator Bob Menendez (D-NJ) and six other senators introduced a bill to enhance human rights considerations before and after issuing U.S. defense manufacturers arms export licenses. This bill comes 11 days after Senators Menendez, Patrick Leahy (D-VT), and Dianne Feinstein (D-CA) submitted a letter to the White House asking the Biden Administration to restore the Department of State’s export licensing control over certain firearms, such as semi-automatic rifles, under the International Traffic in Arms Regulations (ITAR) after the Trump Administration transferred them to the Department of Commerce’s less-rigorous export controls. Any legislative or administrative action spurred by these developments would likely impact export compliance programs for U.S. defense manufacturers, particularly those producing firearms and ammunition.
 
Proposed Bill Would Enhance the State Department’s Requirement to Consider Human Rights in Arms Exports

Titled the Safeguarding Human Rights in Arms Exports, or SAFEGUARD, Act, the bill’s stated policy is to “prevent [U.S. defense articles] exports from being used in violation of international humanitarian law or internationally recognized human rights.” Before issuing ITAR export licenses, the bill would require the Secretary of State to, among other things, determine whether the country for which the U.S. defense article is destined is committing genocide or war crimes, failing to protect human rights, or refusing to support democratic institutions. The bill proposes to make certain amendments to the 1976 Arms Export Control Act, which authorizes the State Department to issue export controls under ITAR, such as requiring certain arms to be subject to end-use monitoring as foreign military sales. Notably, the bill retains the existing meaning for “defense articles” regulated under the ITAR and listed on the U.S. Munitions List (USML).
 
Senators Ask White House to Place Semi-Automatic Rifles and Other Small Arms Exports Back Under the State Department’s Control

In their April 19 letter to the White House, Senators Menendez, Leahy, and Feinstein sought to reverse the Trump Administration’s removal of certain firearms, such as semi-automatic rifles smaller than .50 caliber, from the State Department’s purview to the less-restrictive controls of the Commerce Department on January 23, 2020. Those Trump-era rulemakings shifted those firearms and related ammunition from the USML to the Commerce Control List governed by the Commerce Department’s Export Administration Regulations (EAR). While ITAR regulates defense-related exports, the EAR controls “dual-use” items that can be used for either commercial or military purposes and has less strict export licensing requirements. In their January 2020 rulemakings, the State and Commerce Departments found that the small arms removed from the USML were widely available to the public in retail outlets for non-military use and thus did not perform inherently military functions. Notwithstanding, Senators Menendez, Leahy, and Feinstein’s April 19 letter encouraged the Biden Administration to roll back this rulemaking to apply the more rigorous ITAR controls over small arms that are highly proliferated throughout the world.
 
Connect with Ice Miller for More Details

If you have questions concerning the impact of these recent developments, Ice Miller has extensive experience assisting companies to comply with laws governing the export of goods, technology, software, and services. Our team includes Guillermo Christensen, office managing partner of the Firm’s Washington, D.C. office and a former CIA officer with national security experience in the intelligence community and internationally with the State Department; Dale Stackhouse, chair of Ice Miller’s International Group and co-chair of its Regulatory Compliance Group; Meghann Supino, a partner in Ice Miller’s Business Group who regularly assists clients with international trade matters related to ITAR and EAR regulations; and Christian Robertson, a former U.S. Air Force intelligence officer who regularly advises clients on export controls and government contracts matters.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
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