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Chair, MTCR
May 19, 2021
Obama Eases Rules on Arms Exports
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Jefferson Morley

In a little-noticed move Oct. 15, the U.S. government began to revamp its long-standing system for regulating the export of U.S.-made weapons ranging from submachine guns and night vision goggles to killer drones and fighter jets.

The Export Control Reform Initiative, launched by the Obama administration in August 2009, will affect U.S. oversight of U.S. firms supplying the $83 billion global arms market. In an Oct. 15 statement, the White House said the initiative will end “the disproportionate focus on the least sensitive items such as nuts, bolts and screws instead of the most sensitive items”; encourage closer logistical collaboration with U.S. military allies and partners; and boost the U.S. defense industrial base.

In the first of a series of scheduled changes, the State Department turned over responsibility for reviewing the export of military equipment and aviation components to the Commerce Department. In the coming year, jurisdiction over tens of thousands of additional items formerly appearing on the U.S. Munitions List, a compendium of weapons-related technologies monitored by the State Department, will be transferred to the Bureau of Industry and Security in the Commerce Department.

The shift will change how the U.S. government monitors most international arms sales. Until now, the State Department reviewed the export of military equipment under a variety of specific criteria to ensure that U.S.-made weapons did not wind up in the hands of repressive governments, terrorists, human rights abusers, or countries subject to UN arms embargoes.

The Commerce Department now will oversee arms exports with a simplified applications process designed to promote its mission of creating new markets for U.S. manufacturers. In general, only the export of items deemed critical to U.S. military and intelligence efforts will remain on the U.S. Munitions List.

“These changes are being made to address the increasing challenges posed by an outmoded export control system created during the Cold War,” the White House said in the Oct. 15 statement. The idea is to make it easier to export more nonsensitive equipment while freeing up the State Department to increase scrutiny of the most significant military items. The public interest news site ProPublica called the changes “a big win” for the defense industry.

The changes will spare manufacturers the cost of registration fees, which can be as much as $2,250, required by the State Department, according to Lauren Airey, director of trade facilitation policy for the National Association of Manufacturers.

“Companies could also save time and money if they face fewer regulatory hurdles in licensing, by taking advantage of license exceptions that are available to exports licensed by the Commerce Department,” Airey said in Oct. 28 e-mail to Arms Control Today.

Critics say the government’s efforts to control unwanted arms transfers will suffer. In April 2012, the General Accountability Office (GAO) said the State and Commerce departments “have not fully assessed the potential impact that control list reforms may pose for the resource needs of their compliance activities.” The GAO estimates the Commerce Department will receive 16,000 to 30,000 additional license applications “but has not assessed the impact this added responsibility would have on its end-use check resource needs.” The Commerce Department told the GAO that it has established a Munitions Control Division with a staff of 25 people to monitor the end users of the most sensitive military items.

The changes will hinder U.S. and international law enforcement efforts, predicts Steven Pelak, former national coordinator of export control enforcement at the Justice Department. Pelak, now a lawyer in private practice, says license exceptions for U.S. exporters will make it easier for Iranian and Chinese front companies to purchase equipment barred by U.S. arms embargoes without being vetted by the U.S. government. “[The Department of] Homeland Security, the National Criminal Investigative Service, the FBI, and the Bureau of Alcohol Tobacco and Firearms will all have a more difficult job,” Pelak said.

The next category of export items to come under the Commerce Department’s jurisdiction will be military vehicles, vessels, and submersibles, scheduled to be put on the department’s control list Jan. 6. So far, the Commerce Department has approved new export regulations for six of 19 categories of trade items. No rules have been issued for the export of semi-automatic weapons, a chief concern of human rights groups. Such weapons remain on the State Department’s U.S. Munitions List for the time being.