ITAR & EAR Export Controls On Firearms – Five Important Points You Need To Know – International Law


In January 2020, the U.S. Departments of State and Commerce
published regulations transferring certain firearms, ammunition,
components, and accessories from controls under the International
Traffic in Arms Regulations (ITAR) to the Export Administration
Regulations (EAR). Specifically, State amended Categories I, II and
III of the U.S. Munitions List (USML) to transfer certain firearms,
including non-automatic and semi-automatic firearms up to .50
caliber (12.7mm) inclusive, from the USML to the Commerce Control
List (CCL) under the EAR, along with certain ammunition, parts,
accessories and attachments. At the same time, Commerce issued
companion regulations establishing controls for the newly
transferred items under the EAR. The result of these parallel
actions by State and Commerce is a complex, bifurcated system of
export controls on firearms and related items. The firearms
industry in particular must now navigate both the ITAR and EAR and
understand when and how each set of regulations applies to specific
products and transactions.

Following are five key points about the current ITAR and EAR
regimes governing firearms and related items.

1. Firearms and Related Items Are Still Heavily
Regulated Under the U.S. Export Laws, Even After the Transition of
Many Items to the EAR
. It is critical to remember that
while many types of firearms are no longer subject to ITAR, they
are still subject to significant regulation by the Commerce
Department’s Bureau of Industry and Security (BIS) under the
EAR. The EAR include most of the principal types of controls that
applied under ITAR. While the details may be different (such as
export classification numbers and procedures for filing license
applications), the majority of responsibilities for U.S. exporters
remain the same. Requirements under the EAR that apply to many
types of firearms industry transactions include the following:

  • The requirement to obtain export licenses for the export of
    most firearms and relates items;

  • The requirement to obtain export licenses for the export of
    controlled technology (i.e., technical information about the
    development, production or use of an item) and the transfer of such
    technology to foreign persons in the U.S. (called a “deemed
    export”), including to employees of your company;

  • The requirement to obtain licenses for reexports and transfers
    in foreign countries of controlled items;

  • While Commerce does not formally regulate defense services as
    defined under the ITAR, Commerce has stated on many occasions that
    in performing services for a foreign party, a U.S. person may
    transfer controlled technology, and as such the performance of
    services related to controlled products, technologies or software
    may require BIS authorization if controlled technology is
    transferred in the process;

  • Restrictions on selling/transferring items to parties on the
    BIS restricted party lists including the Entity List (think Huawei
    and ZTE), the Denied Persons List, and the Unverified List;

  • If a product is manufactured abroad that incorporates a
    controlled U.S. component or is “bundled” with controlled
    U.S. software, if the value of the controlled U.S. items exceed
    the de minimis level in EAR §734.4 (25% for
    most countries) the foreign manufactured product becomes
    “subject to the EAR” and may be subject to U.S. export
    requirements in the foreign country;1

  • If a product is manufactured abroad that is the “direct
    product” of certain controlled U.S. technology or software
    identified in EAR §736.2(b)(3), or produced in a foreign plant
    that is the direct product of U.S.-origin technology or software
    identified in §736.2(b)(3), the newly manufactured product
    becomes “subject to the EAR” and may be subject to U.S.
    export requirements in the foreign country; 

  • Restrictions on the use of products subject to the EAR in one
    of the prohibited end uses identified in EAR Part 744;

  • Restrictions on selling or transferring items to countries
    subject to BIS embargoes set forth in EAR Part 746;

  • Restrictions on selling items for certain “military end
    uses” or “military end users” in Belarus, Burma,
    Cambodia, China, Russia and Venezuela;

  • Recordkeeping requirements under EAR Part 762; and

  • If the U.S. company is being acquired by a foreign company, the
    fact that the U.S. company manufactures or possess firearms
    products and/or related technology will subject the transaction to
    enhanced scrutiny by the Committee on Foreign Investment in the
    United States (CFIUS) and may trigger a mandatory CFIUS filing by
    the parties to the transaction.

     

In addition, many firearms industry
products continue to be regulated under ITAR,
including for example:

  • Fully automatic firearms (including firearms under .50 caliber
    (12.7 mm)) and fully automatic shotguns;

  • Recoilless rifles;

  • Many guns greater than .50 caliber (12.7mm) including guns,
    howitzers, artillery, cannons and grenade launchers;

  • Firearms that use caseless ammunition;

  • Certain precision guided firearms;

  • Ammunition for guns and armaments controlled under the new USML
    Category II;

  • Caseless ammunition manufactured with smokeless powder;

  • Certain “tracer” ammunition employing pyrotechnic
    material; and

  • Ammunition preassembled into links or belts.

     

Thus, while some of the requirements under the ITAR have been
eliminated for some firearms and related items (such as the
ITAR’s registration requirement), most of the general
compliance requirements continue, but are administered through a
different agency.

2. Parts, Accessories and Attachments Are Treated
in Many Different Ways
. While many firearms parts,
components, accessories and attachments have been transferred to
the EAR, many are still regulated under ITAR. Also, components,
accessories and attachments transferred to the EAR are classified
under a variety of different ECCNs or as EAR99. Manufacturers and
distributors of these products must determine how the rules apply
to each product. For example, the following items continue to be
ITAR-controlled:

  • Silencers, mufflers and sound suppressors;

  • Barrels, receivers (frames), bolts, bolt carriers, slides and
    sears “specially designed” for the items covered under
    the newly revised USML Category I (a), (b) and (d);

  • Drum and other magazines for firearms to .50 caliber (12.7 mm)
    inclusive with a capacity greater than 50 rounds, regardless of
    jurisdiction of the firearm, and specially designed parts and
    components therefor;

  • Parts and components specially designed for conversion of a
    semiautomatic firearm to a fully automatic firearm;

  • Accessories or attachments specially designed to automatically
    stabilize aim (other than gun rests) or for automatic targeting,
    and specially designed parts and components therefor;

  • Parts and components specially designed for defense articles
    described in newly revised Category I (c) and (e);

  • Certain ammunition handling equipment; and

  • Gun barrels, rails, tubes, and receivers specially designed for
    the weapons controlled in paragraphs (a) and (d) of the revised
    USML Category II.

     

For items transferred to the EAR, certain firearms parts,
components and accessories are controlled on the CCL and subject to
licensing requirements, while others are classified as EAR99 and do
not require a license under CCL-based controls. Manufactures of
components and accessories must conduct a careful review of the
regulations to identify the export classifications of their
products and the export requirements that apply based on these
classifications. If a company is not sure of the classification of
its product, or if it wants a higher level of assurance, it can
request a Commodity Jurisdiction determination (for ITAR items) or
a Commodity Classification Automated Tracking System request
(CCATS) (for EAR items) to obtain written confirmation of the
product classification.

3. Controls on Technology and Deemed
Exports
. The EAR also regulate certain
“technology” related to firearms products that are
subject to the EAR. Generally, “technology” includes
designs, drawings, specifications, technical manuals and similar
technical information related to controlled products in both
tangible and intangible form (including technical information in
spreadsheets, PowerPoint slides, e-mails, Word documents, and
CAD/CAM drawings). Controls on technology are one of the most
challenging aspects of export compliance and a frequent source of
export enforcement actions.

The CCL contains specific ECCNs for technology related to
firearms, including: 0E501, 0E502, 0E504, 0E505, 0E602 and 0E982.
Companies may be required to obtain licenses for the export of
controlled technology depending upon the technology’s export
classification and the foreign country involved. In addition,
restrictions may apply (and licenses may be required) for the
transfer of controlled technology to foreign nationals in the U.S.
(called a “deemed export”), including to employees within
your own company. BIS recommends that companies adopt controls
within their computer networks to prevent foreign national
employees from being able to access controlled technology in the
company’s computer system, as well as to prevent all employees
from inadvertently exporting controlled technology and software in
laptops, iPhones and PDAs when traveling outside the U.S.

The EAR specifically address placing controlled firearms
technology on the Internet. EAR §734.7(c) provides as
follows:

(c) The following remains subject to the EAR:
“software” or “technology” for the production
of a firearm, or firearm frame or receiver, controlled under ECCN
0A501, that is made available by posting on the internet in an
electronic format, such as AMF or G-code, and is ready for
insertion into a computer numerically controlled machine tool,
additive manufacturing equipment, or any other equipment that makes
use of the “software” or “technology” to
produce the firearm frame or receiver or complete firearm.
Accordingly, such technology and software are prohibited from being
posted on the internet unless an export license is obtained under
the EAR.

4. ITAR Brokering Regulations Apply Event to
Firearms Controlled Under the EAR
. While most firearms .50
caliber and under are regulated under the EAR, the
ITAR brokering regulations still apply to these
products
.

Under the Arms Export Control Act (AECA), the State Department
has jurisdiction for the regulation of “brokering
activities” for all items on the USML and the U.S.
Munitions Import List (the
“USMIL”). While most firearms .50 caliber and under are
no longer on the USML, they are still listed on the USMIL and hence
the “brokering” of such products continues to be
regulated by the State Department’s Directorate of Defense
Trade Controls (DDTC), under ITAR. (In addition, since these
products continue to be listed on the USMIL, the permanent import
of such items continues to be regulated by the Bureau of Alcohol,
Tobacco, Firearms and Explosives.)

The ITAR brokering regulations are a broad set of requirements
that place controls on performing “any action on behalf of
another to facilitate the manufacture, export, permanent import,
transfer, reexport, or retransfer of a U.S. or foreign defense
article or defense service, regardless of its
origin.”2 If a party engages in
“brokering activities” it will be subject to numerous
requirements, including:

  • Registration with the State Department;

  • Obtaining licenses (called “approvals”) from the
    State Department prior to engaging in certain brokering
    transactions;

  • The prohibition against engaging in transactions involving
    defense articles with the “proscribed countries” listed
    in ITAR §126.1; and

  • Reporting and recordkeeping requirements.

     

The ITAR brokering regulations exclude activities by persons to
facilitate the manufacture in the United States or export of items
subject to the EAR. However, they still apply to most foreign
manufactured firearms products. Thus, if a U.S. person
(including its foreign subsidiaries and in some cases foreign
persons) contemplates becoming engaged in transactions involving
foreign-made firearms (including firearms .50 caliber and under)
and ammunition, it should review the ITAR brokering regulations
carefully to determine if any ITAR requirements apply to the
transaction
.

It should be noted that requirements under the ITAR brokering
regulations may apply even at the beginning of involvement in a
transaction. If a party is brokering or assisting others in the
sale of foreign-made firearms, even just the commencement of the
negotiations may require ITAR registration and advanced DDTC
approval – it is not necessary to close the sale for
requirements to apply. Also, under ITAR §129.7 and
§126.1(e) no person may engage in or make a proposal to engage
in brokering activities (or the direct sale of USML items) that
involve a “proscribed country” listed in ITAR §126.1
– and if a party becomes aware of such activities that
involve a “proscribed countries” he/she is required to
immediately disclose the occurrence to DDTC under ITAR
§§129.7 and §126.1(e).

In light of the broad scope of these requirements, any company
that is engaged in an international firearms transaction, even as a
sales agent, consultant, advisor or other intermediary, should be
familiar with the ITAR brokering regulations. 

5. Commerce Has a Substantially Larger Export
Compliance Staff Than the State Department
. DDTC has a
highly effective and well-respected compliance staff (the Office of
Defense Trade Controls Compliance), focused principally on
investigating civil ITAR violations. However, the BIS Office of
Export Enforcement, which focuses on EAR violations, is a much
larger organization with agents in eight field offices across the
U.S. and authority to carry firearms, make arrests, execute search
warrants, serve subpoenas, detain and seize goods, and investigate
both civil and criminal violations. Companies regulated by BIS
under the EAR face more Special Agents and compliance analysts with
greater resources at their disposal. Penalties are significant
– the penalties under the EAR are effectively the same as
ITAR – up to $1,000,000 in fines and 20 years’
imprisonment. Companies should expect that the risk of enforcement
actions are likely to be greater under Commerce than State and plan
accordingly.

As mentioned above, the firearms industry is now subject to a
complex regime of export regulations, which now comprises both ITAR
and EAR. Companies must account for all ITAR and EAR requirements
that apply to their products and international transactions. This
includes: (i) determining the export classifications of their
products; (ii) assessing the licensing requirements that apply to
their products; (iii) maintaining compliance procedures for license
filing procedures, use of license exceptions, procedures for
commodity classification requests, reporting requirements, and AES
submissions; and (iv) analyzing planned business activities to
determine if they trigger additional registration, licensing or
reporting requirements under the ITAR brokering rules.

Note: This article contains general, condensed summaries of
actual legal matters, statutes and opinions for information and
education purposes. It is not intended and should not be construed
as legal advice.

Footnotes

1. Similarly, if controlled U.S. software is
“comingled” with foreign-made software abroad, if the
value of the controlled U.S. software exceeds the de
minimis
 level in EAR §734.4 the comingled software
becomes subject to the EAR and U.S. export requirements may apply
to the comingled software in the foreign country. Also, if
controlled U.S. technology is “comingled” with foreign
technology abroad, if the value of the controlled U.S. technology
exceeds the de minimis level in EAR §734.4
the comingled technology becomes subject to the EAR and U.S. export
requirements may apply to the comingled technology in the foreign
country. Note that there are certain commodities, software and
technologies for which no de minimis  treatment
is permitted under EAR §734.4.

2. Certain activities are excluded from the
definition of “brokering activities” in ITAR
§129.2(b)(2).

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

Previous Piyush Goyal urges plastic industry to reduce imports and become self-sufficient
Next EDITORIAL: The world needs more empathy, open migration policies | The new times