The United States Department of Commerce may soon clamp down on gun sales in other countries, according to a draft rule obtained by The Reload.
The new policy would curtail civilian sales of American-made firearms in dozens of countries around the world, including nations like Israel and Ukraine where demand has risen in recent years. The draft, which was first provided to a Heritage Foundation analyst who asked to remain anonymous, outlines a series of new requirements for American gun exporters. Among them are requirements that exporters collect passport information from end buyers in some countries and provide a purchase order for each gun brought into those nations.
The proposal says it is the end result of the Biden Administration’s recent move to temporarily pause commercial exports of all guns to certain countries this fall. It claims the proposed measures come after a Bureau of Industry and Security (BIS) review of gun exports.
“The review was conducted with urgency and enabled BIS 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,” the draft reads. “By publishing this rule, BIS is taking an additional step to further U.S. national security and foreign policy interests regarding these items.”
The proposal is another in a series of unilateral actions President Joe Biden has taken to restrict the gun industry and access to firearms. Since taking office, President Biden has defended former President Donald Trump’s bump stock ban as well as issued his own executive orders targetting the sale of unfinished firearms parts, pistol-braced guns, and used firearms on the private market. He has also continually highlighted his efforts to impose new gun restrictions despite resistance from Congress as a selling point heading into his 2024 re-election campaign.
If adopted, the rule could restrict foreign civilians’ access to firearms and the American companies’ ability to sell them those firearms. The regulations would affect some nations that have begun loosening their gun laws in the face of increasing demand for civilian firearms. In 2022, Ukraine repealed many of its gun restrictions as Russia began a brutal ground invasion. In October, Israel followed suit after terrorists from Hamas stormed its southern towns and committed horrendous acts of violence against civilians.
The draft rule would apply new restrictions to any country not part of the arms trade pact called the Wassenaar Arrangement, such as Israel. However, it would also cover a few signatories of the agreement, including Ukraine. Any country that isn’t among the 40 nations considered part of “Group A:1” under BIS classifications would be subject to the new export requirements.
Israel and Ukraine have been specifically exempted from the current pause on civilian gun exports but are not under the draft rule proposal. However, the Department of Commerce emphasized the draft is not finalized and said it is still weighing options on civilian firearms exports to those nations. It also noted the rule does not affect military aid, which is regulated differently.
“No decisions on potential policy changes resulting from the review have been made,” a Commerce Department spokesperson told The Reload. “The U.S. government is closely engaged with Israeli and Ukrainian counterparts and will continue to support U.S. allies’ ability to defend themselves. That is why the pause specifically exempted non-governmental end users in Ukraine and Israel from its scope.”
Additionally, many of the countries affected by the new rules already have strict gun-control policies in place. Taiwan, another global hotspot that would be subject to the new regulations, effectively bars all civilian gun ownership and would be relatively unaffected by the export rules. Even places where gun laws have been reformed in the face of demand, such as Israel, still bar civilian ownership of many of the firearms affected by the proposed rule.
Still, the Commerce Department and gun industry members alike believe the new regulations would have a significant impact. For Commerce, the hoped-for effect is to prevent foreign criminals or adversaries from obtaining American-made guns. For the industry, the feared effect is a substantial reduction in legal export sales.
“The Biden Administration is committed to strengthening its foreign policies by preventing foreign criminals, terrorists, and other adversaries from being able to obtain U.S. firearms,” the Commerce spokesperson said.
“We think this is part of the Biden administration’s whole of government attack against the industry. They’re trying to find any way possible to harm the industry,” Larry Keane, National Shooting Sports Foundation (NSSF) general counsel, told The Reload.
Johanna Reeves, a lawyer who has spent decades working with companies at the intersection of firearms law and federal export controls, described the proposed changes as “far-reaching.”
“It’s really going to be a significant change to current policy regarding exports of firearms and ammunition, and it’s going to have a real significant impact on businesses overseas,” she told The Reload.
The biggest change proposed in the draft deals with the export of semi-automatic firearms with certain cosmetic or ergonomic features, like pistol grips or threaded barrels. Buyers in countries covered by the rule would have to submit “passport or other national identity card information” to American exporters before licenses for the affected gun sales can be granted. That would create something akin to a registry of foreign gun buyers regulated by the BIS and administered by American gun companies for the stated purpose of helping “with vetting coordination with local law enforcement, address diversion issues, and support enforcement efforts if violations are identified.”
In addition, the new regulations would shorten export license validity from four years to one. And it would require that each export sale be matched to a specific purchase order to “help match bona fide local demand with licensed quantities.”
Reeves questioned whether the system described in the draft is workable.
“If a company is going to export firearms for commercial resale purposes, more than likely, they’re going to be working with a distributor,” she said. “The distributor has customers or future customers–they may have customers that they don’t know yet. To get the license, that distributor will have to provide not just the list but also the passports of the customers who will receive the firearm. I don’t know how they’re going to enforce that. I don’t know how they’re going to implement it.”
Keane called the proposal “a big step backward” and “essentially an effort to impose a ban on the export of so-called assault weapons.” He said it would put a potentially-insurmountable burden on American exporters.
“If you’re selling to a distributor or a commercial business, you don’t know who their customer is at the end of the day,” he said. “They’re buying for inventory, right? You don’t know who the actual end user is. They purchase it legally from the foreign retailer or distributor in that country, pursuant to the laws of that country.”
The draft rule argued the changes are necessary to “advance U.S. national security and foreign policy interests” by restricting criminal access to American-made guns. It pointed to an ATF report on international crime gun traces.
“An analysis of international crime gun trace requests indicates that eleven percent (18,749) were attributable to firearms lawfully exported from the United States and later recovered in a foreign country, according to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF),” the draft reads. “The vast majority of those traces (16,429) were firearms legally exported from the United States and traced to foreign firearms dealers. Outside of North America, 37% of traces were linked to lawful exports of guns.”
Keane disputed that conclusion, arguing the numbers show legally exported guns are rarely found at international warzones or crimes. He said BIS offered only a few anecdotes, including a killing spree carried out by a former Thai law enforcement officer last year, as examples of why the changes were needed. He argued trying to force gun bans on other countries through export controls would accomplish little more than shifting sales to companies in other countries.
“Taking them at their word that they’re doing this for regional stability, it is fantasy to think that those countries won’t simply go to other countries to acquire firearms,” Keane said. “You’re just gonna drive business away from the United States. It’s not going to solve the problem they purport to be trying to solve. The better course of action is for the U.S. Government to work with law enforcement in those countries where they have concerns.”
He also accused BIS of coordinating with the White House and ATF to craft the draft proposal well before the October export pause.
“This is a work in progress. This is far from finished. But it’s also very clear, given the scope, that this is not something they started from scratch the day after they announced the pause,” Keane said. “They’ve been working on this for quite a while.”
Keane said he expects any proposal similar to the draft to come under scrutiny from Congress, where Republican members are currently investigating the export pause. He said NSSF would also consider legal options if such a proposal made it through the rulemaking process.
Commerce has not published the draft proposal, and the department did not say when it might issue a finalized proposal. However, the current pause on gun exports is set to expire next month.