U.S Control of Export of Defense Materiel
The United States has a long and proud history of supporting friendly peoples in their struggles for independence and freedom through the supply of American equipment, technological advancements, and resources needed for production of arms, through its powerful national industrial base. Particularly in the First and Second World Wars, American individuals and companies stepped up and provided the Entente and Allied powers with the means of resisting tyranny and aggression.
Today, the trade of arms and defense technologies with foreign governments, organizations, and individuals is governed by the U.S. Department of State, under a regulatory structure called the “International Traffic in Arms Regulations,” usually shortened and referenced as the “ITAR.”
The ITAR was created and is authorized by the portion of the Arms Export Control Act (“AECA”) contained in 22 U.S.C. § 2778. Under this law, and the regulations made according to it, exports of any military- or defense-related item, technology, plans, or even concepts are subject to the approval of the State Department. This means that export not only of certain small arms, parts, or design plans for them have to comply with the ITAR, but even an activity as simple as giving verbal instructions to a foreign person or group in how to use a weapon or weapon part/accessory is something that may only legally be done with State Department approval.
In addition to the ITAR, exports of small arms and other defense materials and services are regulated by the Department of Commerce through the Export Administratio Regulations, called the “EAR.”
Importation of small arms articles is governed separately from export, unless that import is a temporary one. Permanent imports of small arms, accessories, parts, and ammunition are the domain of the Attorney General, being administered by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF). In the case of reimportation of U.S.-supplied firearms or ammunition, an extra wrinkle is added, and the State Department also becomes involved.
Hoping to learn more about the history and structure of U.S. small arms import/export regulation? Then read on! If you want instead to jump straight to a detailed look at each area, set your sights on the links below:
Securing Defense Articles and Information in the Cold War
The promulgation of the ITAR in 1976 was cast against the backdrop of the Cold War, and was intended to prevent the unique technologies, production methods, and technical data central to the defense of the United States and the Free World from falling into the hands of the Soviet Union and her allies.
The earliest precursor of the ITAR could be seen in the buildup to the Second World War in 1940, when, hoping to deny the advantage of any American military innovations or equipment to the Japanese aggressors and to prevent the general depletion of America’s stocks of resources and supplies that would be needed in the increasingly-likely event of war, Congress passed the Arms Control Act (“ACA”), which was signed by President Franklin Roosevelt.
Immediately following WWII, a patchwork of regulations was formulated by the various allied countries and the fledgling members of NATO that sought to restrict and eliminate the transfer to the Soviet Union and Warsaw Pact of anything that could readily be used for military purposes. Just as the ACA meant to hamstring imperialist aggression in the interwar environment, the virulent and violent spread of international communism was recognized by free peoples as a basic threat to civilization in the postwar world.
CoCom and Its Objectives
This arrangement began secretly, first between only the United States and Great Britain, and came to be known as the Coordinating Committee for Multilateral Export Controls, or “CoCom” for short. Eventually, this cooperating group came to include all NATO members - except for Iceland - as well as Pacific allies Australia and Japan.
CoCom was never formalized by a treaty, but each participating country strove to enact legislation to control exports of such material and information. One of the main objectives of the meetings of this semi-clandestine group was the formulation of a shared and unified list of defense material, the export of which should be controlled.
The Promulgation of the ITAR
It was in large part due to a need for a unified list of materials and articles that should be subject to export controls that the AECA was passed in 1976. The AECA authorized the office of the President to regulate the import and export of defense articles, and on January 18, 1977, just before his presidential term ended, Gerald Ford signed Executive Order 11958. This Order delegated to the Department of State many of the powers granted to the Office of the President under the AECA, particularly the power to compile a list of defense articles and services that would be controlled by the Executive, under the AECA.
While CoCom had labored to formulate a unified list that all powers arrayed against Soviet aggression could use to control the export of defense articles and services, the United States quickly promulgated such a list for its own domestic industry: the U.S. Munitions List, generally referenced as the “USML”. While EO 11958 was amended in the intervening years and was superseded in 2013 by EO 13637, it has remained substantially the same.
Each and every one of these areas that the ITAR (or ITAR-adjacent regulations in some cases) govern can affect your business operations and compliance, and they are all detailed and complex, to varying degrees. For a deeper dive into the ITAR or its control list, see the pages dedicated to them:
The ITAR →
The U.S. Munitions List (USML) →
The Export Administration Regulations
Receiving far less attention than the ITAR, but punching above their weight in importance, are the Export Administration Regulations, or the “EAR.” Administered by the Department of Commerce’s Bureau of Industry and Security, this set of regulations governs the export of items and technology that are considered sensitive or important to the United States for a variety of reasons. At least in most cases, the articles covered by the EAR are not considered as critical, at least particularly to the national security and military advantage of the U.S. as the subject matter of the USML.
The importance of the EAR to those in the small arms business is of fairly recent origin, as it was only in 2020 that most varieties of firearms - almost all of those that are in regular use by the general American population - were moved from the USML to the jurisdiction of the EAR. Just as the ITAR contain as their cornerstone the USML, the EAR contain the Commerce Control List (the “CCL”), which delineates the categories of articles that the EAR control.
Just as they bear many similarities to the ITAR, especially as they apply to the small arms import/export business, the EAR are also distinct from the ITAR, particularly in their scope and purpose. While the ITAR are primarily concerned with maintaining America’s military advantage over potential rivals, a great many different rationales - each defined in the regulations - are applied to different articles to which the EAR apply controls.
For a closer look at how the EAR apply to your business, and how they necessarily interact with the ITAR (unfortunately, one cannot export small arms under the EAR without at least some paperwork and dealings with the Department of State under the ITAR), take a minute to review the pages that go into detail on them:
The United States Munitions Import List
In the same way as the exports of defense-related articles are controlled by the ITAR and EAR, imports of much of the same material - essentially all small arms and ammunition controlled by either set of export regulations - are similarly controlled. While the State Department administers the ITAR and the Commerce Department promulgates the EAR (with some regulatory authority under the EAR still authorized by the State Department), it is the Department of Justice, currently through the ATF, that exercises oversight for imports. This is done by means of a list, very similar to the USML - particularly the pre-2020 USML - that is known as the United States Munitions Import List, or the “USMIL.”
While at first blush the USMIL may seem more straightforward than the complex interplay of the ITAR and EAR, it holds plenty of its own wrinkles, surprises, and complications; as anything done by the government seems wont to do. Just as with exports and temporary imports conducted through and in compliance with the ITAR and EAR, it is critical to have an experienced and knowledgeable attorney on your side when doing business importing small arms, ammunition, and related parts and accessories. Not only does the Managing Attorney have a profound understanding and specialized experience working with the USMIL, but he has even represented himself in such imports for study in writing The ArmaLite AR-10: World’s Finest Battle Rifle.
Joe was, quite literally, his own first small arms import/export client, and he is a very satisfied client, as his extensive collection of the most unique parts for the rarest firearms imported from far-flung overseas locations can attest!
Understanding in more detail the way the USMIL works, how it interfaces with the other import/export regulations, issues unique to it, and important compliance items, it is a good idea to check out the following dedicated pages:
