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Congress Mandates More Frequent Reviews of the U.S. Munitions List

January 17, 2024 | PDF Copy

The public should see more revisions to the U.S. Munitions List over the coming years, as Congress now mandates reviews of the list at least every three years. This new requirement for the State Department comes from Section 1345 of the National Defense Authorization Act for Fiscal Year 2024. It also requires the State Department to consider several factors when determining whether to remove an item from the Munitions List by focusing on:

  • The government’s resources to address current threats.
  • The evolving technological and economic landscape.
  • The widespread availability of certain controlled technologies and items.
  • The risks of misusing U.S.-origin defense articles.

The Munitions List is an essential part of the Arms Export Control Act (AECA), the enabling statute for the International Traffic in Arms Regulations (ITAR). That list identifies items designated as defense articles and defense services, which refers to items that provide a critical military or intelligence advantage or otherwise warrant control. The Directorate of Defense Trade Controls (DDTC), an export controls agency within the State Department, administers the ITAR and Munitions List. The last major review of the Munitions List occurred from 2010 to 2020 through a category-by-category approach spread across eight rulemakings. 

Congress has previously taken action regarding reviews of the Munitions List. In 1980, Congress mandated a review of the Munitions List to determine whether to remove any items. That review led to the statutory requirement, which remains codified in the AECA, for the President to “periodically review the items on the United States Munitions List to determine what items, if any, no longer warrant export controls under this section” and to notify Congress of any removals before they take place. In 2009, Congress also required a more targeted review of the Munitions List to determine whether to remove any Category XV space-related items, ultimately leading to the removal of many such items in 2014.

The new congressional requirement adds to a recognized need for more frequent reviews. Specifically, DDTC already acknowledges that having a positive control list “requires” the Munitions List to be “regularly revised and updated,” and its review considerations largely track the ones noted above that Congress imposes. The new mandate also comes as DDTC plans to move forward in 2024 with several rulemakings concerning the Munitions List.

In summary, given the new congressional requirement and the already planned rulemaking efforts by DDTC, the public should expect more revisions to the Munitions List over the coming years.

Full text of the new requirement:

SEC. 1345. UNITED STATES MUNITIONS LIST.

(a) . . .

(b) United States Munitions List Periodic Reviews.–

(1) In general.–The Secretary of State, acting through authority delegated by the President to carry out periodic reviews of items on the United States Munitions List under section 38(f) of the Arms Export Control Act (22 U.S.C. 2778(f)) and in coordination with the Secretary of Defense, the Secretary of Energy, the Secretary of Commerce, and the Director of the Office of Management and Budget, shall carry out such reviews not less frequently than every 3 years.

(2) Scope.–The periodic reviews described in paragraph (1) shall focus on matters including–

(A) interagency resources to address current threats faced by the United States;

(B) the evolving technological and economic landscape;

(C) the widespread availability of certain technologies and items on the United States Munitions List; and

(D) risks of misuse of United States-origin defense articles.

(3) Consultation.–The Department of State may consult with the Defense Trade Advisory Group (DTAG) and other interested parties in conducting the periodic review described in paragraph (1).

Contacts

If you have any questions or would like further information, please contact:

ITAR Lawyer

Christopher B. Stagg

With the unique experience of writing and heavily influencing U.S. export control laws, companies turn to Christopher Stagg as their go-to counsel for practical and strategic advice.

chris@stagg.law
(202) 771-7579

This article is for general information purposes only and does not constitute legal advice or establish an attorney-client relationship.