BIS Unveils New Restrictions on Firearm Exports

The Commerce Department announced new export restrictions April 26 that it says are intended to reduce the risk that firearms end up in the hands of criminals, terrorists or cartels.

“These changes will help to enhance U.S. national security and to promote U.S. foreign policy interests, including by advancing human rights and fostering greater regional stability,” the department said.

Under an interim final rule set to be published April 30, the Bureau of Industry and Security will create a “presumption of denial” for firearm export licenses for 36 countries in which there is a “substantial risk” of diversion or misuse. The countries, which are listed in a State Department memorandum, are mostly in the Caribbean, Latin America and Southeast Asia.

The nations are the Bahamas, Bangladesh, Belize, Bolivia, Burkina Faso, Burundi, Chad, Colombia, the Dominican Republic, Ecuador, El Salvador, Guatemala, Guyana, Honduras, Indonesia, Jamaica, Kazakhstan, Kyrgyzstan, Laos, Malaysia, Mali, Mozambique, Nepal, Niger, Nigeria, Pakistan, Panama, Papua New Guinea, Paraguay, Peru, Suriname, Tajikistan, Trinidad and Tobago, Uganda, Vietnam and Yemen.

All existing previously approved firearms export licenses for those countries will be revoked 60 days after the interim final rule is published on April 30, i.e., on July 1. Companies that have those licenses will have to reapply for new licenses. The State Department plans to update the list of countries annually.

BIS will also reduce the duration of most firearm export licenses from four years to one, “which will ensure that BIS is able to adapt to an ever-changing global security environment,” Commerce said.

Beginning on the interim final rule's May 30 effective date, BIS will modify some existing licenses with validity periods that end more than one year after May 30 by "rendering them invalid one year from the effective date" of the interim final rule. The modifications will affect licenses for exports and reexports to nongovernment end users in destinations outside Country Group A:1, Israel, Ukraine and the 36 high-risk countries set for license revocation.

To better track what kinds of firearms U.S. manufacturers are sending abroad, BIS will adopt four new export control classification numbers (ECCNs). ECCN 0A506 will control semi-automatic rifles, ECCN 0A507 will control semi-automatic pistols, ECCN 0A508 will control semi-automatic shotguns and ECCN 0A509 will control certain “parts,” “components,” devices, “accessories” and “attachments” for items controlled under ECCNs 0A506, 0A507 and 0A508.

BIS will apply controls under the Crime Control 2 reason to these new ECCNs, and add or maintain them on existing ECCNs for firearms, it said. And under the Regional Stability reason for control, BIS will set a licensing policy for denial for all firearms and related items in ECCNs 0A501, 0A502, 0A505, 0A506, 0A507, 0A508, or 0A509 that are destined for D:5 destinations, it said. It's also extending a policy of denial when destined for China or a Country Group E:1 country to all items classified under ECCNs 0A501, 0A502, 0A504, 0A505, 0A506, 0A507, 0A508, 0A509, 0B501, 0B505, 0D501, 0D505, 0E501, 0E504, or 0E505, or any 9x515 ECCNs.

The 130-page interim final rule also calls for BIS to approve licenses on a case-by-case basis to consider such factors as corruption, human rights concerns, state fragility, terrorism risks, and past instances of diversion and misuse.

It includes changes specific to destinations in the Caribbean Community (CARICOM), as well as associated countries. It adds a definition for CARICOM to the EAR to implement the changes.

License Exception LVS will no longer be available for commodities controlled under ECCNs 0A501, 0A502, 0A504 (except 0A504.g), 0A505, 0A506, 0A507, 0A508 and 0A509 when they are destined for destinations in CARICOM or destinations specified in both Country Groups B and D:5.

And the interim final rule sets new documentation requirements for firearms export license applicants. It will require that all license applications for firearms and related items include an import certificate or equivalent official document as part of the submission. Previously, that requirement had been in effect only for Organization of American States members.

It also amends the Export Administration Regulations to "require that a purchase order be submitted for exports and reexports of firearms and related items to non-A:1 countries," BIS said. "Previously, exporters were not required to submit a purchase order with BIS license applications, unless requested during the course of BIS’s review of a particular application."

"Purchase orders must be dated within 1 year of their submission with a license application," BIS said, and "upon approving a license for these items, BIS will generally limit the licensed quantity to the quantity specified on the purchase order. However, applicants may request up to a 10% increase in quantity from the purchase order amount, which will be reviewed on a case-by-case basis."

The interim final rule also makes conventional arms reporting information mandatory in the Electronic Export Information filing in the Automated Export System. "It does this by specifying that exporters must include the items-level classification or other items-level descriptor in the Commodity description block in the EEI filed in AES," BIS said.

Commerce will accept public comments on the IFR until July 1.

In addition to the new rule, the International Trade Administration will curtail promoting commercial firearm exports that could be misused by malign actors. “Any request falling into this category will be declined except in cases consistent with U.S. foreign policy objectives, including national security and human rights,” Commerce said.

BIS in October announced a pause in issuing commercial firearms export licenses, saying it would allow Commerce to “more effectively assess and mitigate risk of firearms being diverted to entities or activities that promote regional instability, violate human rights or fuel criminal activities” (see 2310270068). The pause was supposed to last 90 days but has been in place for about double that time, drawing protests from the gun industry and its backers.

Gun industry advocates criticized the new rule. The National Shooting Sports Foundation said the IFR is designed to curry favor with pro-gun control political donors and will “hobble the firearm industry’s ability to compete” internationally. The NSSF said it's “considering its legal options.”

Sen. Bill Hagerty, R-Tenn., said the IFR will “destroy U.S. jobs and small businesses” that support the firearm industry. He plans to “push for Congress to overrule it.” Rep. Mark Green, R-Tenn., said the rule will "overload" BIS with new responsibilities and "increase the backlog of licensing, but maybe that’s the point."