Earlier this week, the Directorate of Defense Trade Controls (“DDTC”), published an entry on their website which contained a notice that the Department of State and the Department of Commerce have each issued a Proposed Rule to amend the regulations pertaining to the International Traffic in Arms Regulations (“ITAR”) and the Export Administration Regulations (“EAR”). These proposed changes have been eagerly awaited by the firearms community for a number of years.

ITAR has plagued manufacturers and gunsmiths for years with its crushing fees, burdensome restrictions, and general confusion as to who it applies. As with everything in the gun world, rumors and bad information permeate even the highest levels and has resulted in individuals placing themselves in potentially perilous situations.

In order to protect US defense and military technology, Congress passed the Arms Export Control Act (“AECA”) in 1976. The AECA gave the President the authority to regulate the import of defense articles and defense services. Along with that authority came confusing regulations (in the form of ITAR), high registration fees, and burdensome restrictions.

Proposed Amendments to ITAR

“The Department of State is engaged in an effort to revise the U.S. Munitions List [“USML”] so that its scope is limited to those defense articles that provide the United States with a critical military or intelligence advantage or, in the case of weapons, are inherently for military end use.”

The USML is a list of articles, services, and related technologies that have been designated defense related and require compliance with ITAR. A number of the items in the first category (Firearms, Close Assault Weapons, and Combat Shotguns) do not meet the newly proposed standard. Further, a large number are available for purchase in retail settings both in the United States and overseas.

The major proposed change to Category I includes the removal of non-automatic and semi-automatic firearms to caliber .50 (including all their parts, components, accessories, and attachments specifically designed for them). However, fully automatic firearms, fully automatic shotguns and silencers (and specifically designed parts and components) will continue to be subjected to ITAR. Interestingly, the proposal also designates that manufacturers of magazines which hold more than fifty (50) rounds will still be required to comply with ITAR. The Proposed Rule also implements changes to Categories II and III.

Proposed Amendments to the EAR

Even with the proposed removal of items from ITAR, it does not mean they will not be subject to regulation. The Department of Commerce has issued a Proposed Rule which would incorporate the items being removed from the purview of ITAR.

However, unlike ITAR, there is no registration or fee requirement to be able to produce items which are controlled. Provided the proposed rules are adopted, a manufacturer wishing to export any of the items which would be controlled by the EAR would still need to acquire the appropriate licenses to do so.

Once the Proposed Rules are published in the Federal Register, the public will have 45 days to submit comments. After the notice and comment period, the agencies will likely publish final rules and a date for implementation.

It appears that smaller manufacturers of firearms and gunsmiths will see some relief from the burdensome obligations of ITAR. However, the boutique silencer manufacturers will still need to pay their ITAR registration (a hefty $2,500 each year) along with ensuring their compliance with the often confusing requirements.

ABOUT THE AUTHOR

Adam Kraut is a firearms law attorney practicing in southeastern PA and across the country federally. He hosts The Legal Brief, a show dedicated to crushing the various myths and misinformation around various areas of the gun world and The Gun Collective Podcast. He was also the general manager of a gun store in the suburbs of Philadelphia.

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