The United States Munitions List

At the Heart of The ITAR

The ITAR concern themselves with the regulation of the export of two different types of material: (1) defense articles, and (2) defense services. Both of these are covered by the United States Munitions List (“USML”), which serves as both the key to the aims of the AECA, and the area that is most consulted and studied by those in the business of the small arms trade. The portion of the ITAR that is taken up by the USML is almost a quarter of the entire text of the regulations, and it does that with only descriptions of the different categories of articles covered. Doing nothing like providing a comprehensive list of every weapon system, type of ammunition, technical manual, piece of technology, etc., that is regulated for export (even if such a list were possible to compile, it would be ruinously long), it still takes up a sizeable portion of the Subchapter of the Code of Federal Regulations devoted to the ITAR.

The ITAR treat as a defense article anything on the USML, and “[t]echnical data recorded or stored in any physical form, models, mockups or other items that reveal technical data directly relating to items” on the USML; as well as “[f]orgings, castings, and other unfinished products, such as extrusions and machined bodies, that have reached a stage in manufacturing where they are clearly identifiable by mechanical properties, material composition, geometry, or function as defense articles.” ITAR’s definition of a defense article does not include general descriptions of a system, or basic marketing information on the function or purpose of an item. 22 C.F.R. § 120.31.

The definition of technical data under the ITAR is very broad, and first includes all “[i]nformation, other than software …, which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of defense articles. This includes information in the form of blueprints, drawings, photographs, plans, instructions, or documentation.” Adding to this umbrella of a definition is any classified information about anything on the USML or another separate list kept by the Department of Commerce, anything covered by an invention secrecy order, or software directly related to any defense article. Just as with defense articles, general system descriptions or basic marketing information are not considered to be technical data. Furthermore, technical data are not information in the public domain or telemetry data (both of these terms are defined elsewhere in ITAR), and are also not information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities. 22 C.F.R. § 120.33.

A defense service, on the other hand, consists of furnishing any technical data to a foreign person; the “training of foreign units and forces, regular and irregular,” which is defined very broadly and covers essentially any instruction in any military or defense activity given to any foreign person, no matter how informally; and “[t]he furnishing of assistance (including training) to foreign persons, whether in the United States or abroad in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing, or use of defense articles.” 22 C.F.R. § 120.32. It is worth reiterating that such a foreign person - as the ITAR define him or her - can be located anywhere, even in the United States.

Making the USML Approachable: A Case Study and a Well-Versed Expert

All of this may overwhelm and intimidate you due to its breadth of coverage - indeed it is likely meant to do exactly that - but it just so happens that the Managing Attorney has deep experience and understanding of the ITAR and USML, and learned it the same way he learned everything in his career; through hands-on practice and the principle that examples are the best way one can understand a difficult or complex topic. Therefore, this hypothetical here may make all of this maelstrom of regulation much clearer.

A Unique Opportunity: a Range Date!

Suppose you are an American citizen living in Laramie, Wyoming (the firearms and accessories used in this example are legal in most parts of the United States, but the Managing Attorney really loves Wyoming, so let’s imagine you’re there), attending the University of Wyoming. On a chilly Friday morning in April a package arrives at your off-campus apartment; a package for which you have been waiting patiently and hoping it would make it to you by the weekend. Inside are six Magpul D60 drum magazines for your ArmaLite M15 modern sporting rifles, and you cannot wait to head to the range on Saturday to test them. Nothing releases pre-finals stress like burning through 60 rounds of 5.56mm ammo without having to stop to reload; and after all, the D60 is the first drum magazine for small arms yet designed that is universally considered to be as reliable as a quality box magazine!

In one of your classes this semester, you have a classmate who is interested in going to the range with you. This classmate happens to be a very pretty foreign exchange student (here on a student visa) from Mongolia who wants to learn about American gun culture! She has practiced archery from horseback before, and has even seen some of the Soviet-designed rifles and light machine guns that civilians freely own and possess in her home country, but really wants to try out a modern American rifle.

You are now doubly excited; not only do you have a chance to try out the best truly-high-capacity rifle magazine ever designed, but you have a chance to spend some time with, and impress, a pretty girl who is interested in guns; a rare gem! After getting up your nerve, you call Tuya, and she says she’d love to go with you, so the range trip is officially happening. Before packing up your range bag, though, you decide to be smart and call a buddy you met fishing in western Wyoming last summer, who is a small arms attorney. You are wondering about any restrictions on using your 60-round magazines on federal land - the range where you’re headed is on Bureau of Land Management real estate - and figure you would check about it. Joe picks up, you chat about this summer’s fishing plans, and then hit him with your question.

Joe tells you that you’re good to go; you are not violating any law or regulation in using your new drum magazines on federal land. Relieved, you tell him about how you plan to impress your classmate, and how you are hoping this range date turns into a dinner date afterwards, and becomes a regular thing. After congratulating you on your good luck, Joe asks you what you plan to shoot, and you tell him that you are bringing a couple of ArmaLite M15s - their low recoil, light weight, and ease of use will suit your lovely range companion well - and how the D60 drums give those rifles an extra cool factor.

What you did not know, though, and something your buddy informs you, is that while general sporting firearms like your M15s are no longer subject to export restrictions, some rules called the “ITAR” regulate the export of firearms magazines that can hold more than 50 cartridges, and “technical data” concerning them, since they are on a so-called “U.S. Munitions List,” whatever that is. You are perplexed: why would you worry about this? You’re not exporting anything. You are thus pretty darn surprised to learn that simply telling a foreign person, even in the United States, about such an item is considered an export, and that instructing a foreign person in how to use (loading and unloading these magazines, for example, requires instruction and takes some practice) such a magazine could be considered “training foreign military personnel” under those same “ITAR.” Joe then inquires whether you are confident that the young lady you are taking to the range is from Mongolia, and asks whether you happen to have a State Department-issued Export License for technical data concerning the Magpul D60 drum magazine. As your friend suspected, your wallet does not contain such a license, and no way you are getting one by the next afternoon, but you are sure that Tuya comes from Mongolia, as she’s shown you her passport and visa. Joe tells you that that is a good thing, because if she were from China, Cambodia, Zimbabwe, or a host of other countries and did not have a green card, you would in almost all cases be prohibited by the ITAR from taking her to the range with your D60s, even if you applied for a license; those countries are on a special list with export restrictions.

You are conflicted; you want your date to be in compliance with federal export regulations, but you also want the date to be fun and successful. Joe tells you that it’s a problem we all encounter from time-to-time, and you ask him what he would suggest you do to preserve the date, but not violate these “ITAR” things. Luckily, there is a good answer; bite the bullet and just take your standard-capacity 20- and 30-round magazines to the range. The ITAR have nothing to say about magazines that can hold 50 or fewer rounds, and there is further an exception that allows you to share firearms-related technical data (for example, instructing a beautiful young Mongolian woman in how to use an M15) with a foreign person without an export license. Having a good date and staying on the right side of the law has to take precedence over testing these new drum mags. Beyond the legal advice, Joe suggests that if you are stuck with standard-capacity magazines, perhaps trot out a retro rifle to look badass, like the clone build you just finished of the Colt 601, of which your lawyer friend is quite jealous; he’s been working on one for years!

The Analysis Continues…

As this example shows, what you don’t know can hurt you, and had you went on a range date with this charming young woman in which you showed her how to load a Magpul D60 magazine, loaded one in front of her, showed her the instructions that came packaged with it, or even let her shoot a pre-loaded D60 in one of your rifles without a license issued by the Directorate of Defense Trade Controls of the U.S. Department of State - not a normal item on most people’s first-date checklists - you would have violated the ITAR. This is not the end of the discussion, though, as there are other regulations one must consider when engaging in small arms (or other defense-related) activities with a foreign person, no matter how much fun it would be!

The discussion of this hypothetical continues in the section on the Commerce Control List, part of the Export Administration Regulations.
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