Notice & Comment

DOJ To Eliminate Import Control On Certain USMIL Defense Articles, by Shannon Allen

The Department of Justice (“DOJ”) requests public input on a proposed interim final rule to amend Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) regulations removing certain “defense articles” currently on the U.S. Munitions Import List (“USMIL”)” that “no longer warrant import control” under the Arms Export Control Act (“AECA”).

In August 2009, the President directed a “broad-based interagency review” of the United States “export control system” to, among other things; identify additional ways to enhance national security, better focus resources on protecting items for export that need to be protected, provide clarity to make it easier for exporters to comply with regulations, and for the United States Government to administer and enforce the regulations.  ATF was asked to identify certain defense articles that no longer warrant control on the USMIL.  The DOJ’s proposed interim final rule amends the regulations at 27 CFR 447.21 by removing defense articles currently on the USMIL that the ATF has determined no longer warrant import control under the AECA.

In “furtherance of world peace” and the “security and foreign policy of the United States,” section 38 of the AECA (22 U.S.C. 2778(a)(1)) authorizes the President to “control the import and . . . export of defense articles and defense services.”  The President, via Executive Order 13637 of March 8, 2013, delegated his “export” authority to the Secretary of State and his import authority to the Attorney General.  The Attorney General “delegated administration” of the “import provisions” of the AECA to the ATF Director. And the Attorney General’s permanent import list, or USMIL, helps to distinguish between the Attorney General’s import list from the Secretary of State’s export list.

This interim final rule includes, but is not limited to the following:

  1. The removal from the USMIL Category I—Firearms, paragraph (e), “Riflescopes manufactured to military specifications . . . ;” because they are readily available through diverse domestic commercial sources and they do not present a significant concern for trafficking or diversion into illicit channels.
  2. The removal in Category III—Ammunition paragraph (c), “Ammunition belting and linking machines,” and (d), “Ammunition manufacturing machines and ammunition loading machines . . . ;” because these defense articles are costly, difficult to maintain, too heavy for easy transport, and readily available from domestic vendors in the United States.
  3. The removal in Category IV—Launch Vehicles, Guided Missiles, Ballistic Missiles, Rockets, Torpedoes, Bombs and Mines, paragraph (f), “Ablative materials fabricated or semi-fabricated from advanced composites (e.g., silica, graphite, carbon, carbon/carbon, and boron filaments) for the articles in this category that are derived directly from or specifically developed or modified for defense articles;” because such materials are a low threat to domestic security and are readily available in the domestic market.
  4. The clarification in Category VI—Vessels of War and Special Naval Equipment, of paragraph (a) to read: “Vessels of War, if they are armed and equipped with offensive or defensive weapons systems, including but not limited to amphibious warfare vessels, landing craft, mine warfare vessels, patrol vessels, auxiliary vessels, service craft, experimental types of naval ships, and any vessels specifically designed or modified for military purposes or other surface vessels equipped with offensive or defensive military systems;” because the new text focuses precisely on defense articles that might threaten domestic security or enable terrorist activities.
  5. The revision in Category VI—Vessels of War and Special Naval Equipment, of paragraph (b) to read: “Turrets and gun mounts, special weapons systems, protective systems, and other components, parts, attachments, and accessories specifically designed or modified for such articles on combatant vessels;” because the new language focuses on defense articles that might threaten domestic security or enable terrorist activities.
  6. The updating of Category VII—Tanks and Military Vehicles by removing and reserving paragraph (g), “Engines specifically designed or modified for the vehicles in paragraphs (a), (b), (c), and (f) of this category.”

The DOJ requests all interested persons to comment on this interim final rule, which is effective as of April 28, 2014.  Specifically, the DOJ seeks comments on the clarity of this interim final rule and how it may be made easier to understand.  All comments must reference the agency name and this document docket number (ATF 25I), be legible, include the commenter’s name and mailing address, and be submitted on or before June 25, 2014, by one of the following methods:

  • Electronic: Federal eRulemaking Portal: Follow the instructions for submitting comments;
  • Fax: ATTN: ATF 25I  Fax #: (202) 648-9741; OR
  • Mail: George M. Fodor, Mailstop 6N-602, Office of Regulatory Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives, U.S. Department of Justice, 99 New York Avenue NE., Washington, DC 20226; ATTN: ATF 25I.

This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.

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