News from Reeves & Dola, LLP 
*** R|D ALERT ***

December 13 , 2019

On November 12, 2019, the U.S. Department of State notified Congress of its intention to transfer jurisdictional control of certain firearms and ammunition over to the U.S. Department of Commerce. The notification is required under Section 38(f)(1) of the Arms Export Control Act (22 U.S.C. 2778(f)(1)), which states that the President may not remove any item from the Munitions List until 30 days after the date on which the President has provided notice of the proposed removal. The Notification was published in the  November 13, 2019 Congressional Record (Senate).

The thirty-day clock was due to run December 11, 2019, which means the final rules could have been published some time before the end of the year or early January. But Senator Menendez, the Ranking Member in the Senate Foreign Relations Committee, has once again issued a hold to block the transition from going to final. Many will recall earlier this year when Senator Menendez placed a hold against the proposed Munitions List revisions when the State Department sent its first 38(f) notification in February. The Senator's hold, although not legally binding, nevertheless resulted in stopping the revisions from going to final back then. The question now is whether we will again experience an indefinite pause on seeing the transition rules published and implemented. We will keep you informed as events unfold.

The following excerpts are from Senator Menendez's press release, issued today. The letter Senator Menendez sent to Secretary of State Mike Pompeo is available  here

WASHINGTON - U.S. Senator Bob Menendez (D-N.J.), Ranking Member of the Senate Foreign Relations Committee,  today announced he will again block the Trump Administration from drastically weakening firearms export regulations, stopping an imminent change to strip oversight authority of U.S.  firearm sales abroad from the State Department's  Munitions List (USML).   

This is the second time Senator Menendez will prevent the transfer to the Commerce Department's less-strict export system over concerns that the Trump Administration is seeking to eliminate meaningful congressional oversight of the proposed foreign sales of these lethal weapons. 
"As you no doubt are aware, firearms and ammunition - especially those derived from military models and widely in-use by military and security services - are uniquely dangerous,"  wrote Senator Menendez  in a   letter addressed to Secretary of State Mike Pompeo. "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 rigorous export controls and oversight, not less."  
The current review process allows Congress notification and review of proposed sales of firearms, including the export of assault-style semi-automatic rifles and sniper-rifles. That process has halted major proposed arm sales by the White House, including a sale of automatic combat rifles to the Philippine police, who were caught executing civilians without trial, and semiautomatic pistols to the bodyguards of Turkey's President who violently attacked peaceful protestors in Washington, D.C. without consequence.

As the top Senate Democrat with oversight on U.S. firearms exports and weapons sales, Menendez first refused to clear on the proposed transfer at the beginning of this year, demanding the Trump administration be more forthcoming in responding to his questions around the proposed transfer. Since then, and in response, the Commerce Department has agreed to impose a far more restrictive policy on the publication of instructions for 3D-printed guns on the Internet.  

Menendez, however, raised concerns over the new proposed change and indicated his hold will remain in place until the Department guarantees that the Senate Foreign Relations Committee and the House Foreign Affairs Committees are "immediately informed of any proposed license to export firearms formerly controlled on the USML at the appropriate dollar threshold mandated in the Arms Export Control Act."  

Menendez's efforts follow  new statutory requirements on the President and Secretary of Commerce demanding they fully control emerging technologies like 3D printing. 3D printing of nearly-undetectable guns by terrorist groups present a real and present danger to  American embassies, military bases, and passenger air carriers abroad. 


The above alert is for informational purposes only and is not intended to be construed or used as legal advice. Receipt of this alert does not establish an attorney-client relationship.     

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Reeves & Dola is a Washington, DC law firm that specializes in helping clients navigate the highly regulated and complex world of manufacturing, sales and international trade of defense and commercial products. We have a deep understanding of the Federal regulatory process, and use our expertise in working with a variety of Federal agencies to assist our clients with their transactional and regulatory needs.

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