Res Communis

by P.J. Blount with the blog faculty
Hobbyspace reports that Bigelow Aerospace will be filing a commodity jurisdiction challenge to the way that the Department of State has implemented the International Traffic in Arms Regulations (ITAR):

The general view has been that the legislation passed by Congress in the late 1990s requires that the State Department take such a broad view of space technology. Mr. Gold [corporate counsel for Bigelow Aerospace], however, says this is not true. He says that State has, in fact, misinterpreted the legislative language. Instead of taking the time and effort to make distinctions among space technologies as allowed under the law, the bureaucracy has taken “the safe and easy way out” and simply declared everything as a munition until proven otherwise case by case.

Read the full post at Hobbyspace.

Commodity jurisdiction challenges for ITAR are allowed under 22 C.F.R. 120.4:

The commodity jurisdiction procedure is used with the U.S. Government if doubt exists as to whether an article or service is covered by the U.S. Munitions List. It may also be used for consideration of a redesignation of an article or service currently covered by the U.S. Munitions List. The Department must provide notice to Congress at least 30 days before any item is removed from the U.S. Munitions List. Upon written request, the Directorate of Defense Trade Controls shall provide a determination of whether a particular article or service is covered by the U.S. Munitions List. The determination, consistent with §§ 120.2, 120.3, and 120.4, entails consultation among the Departments of State, Defense, Commerce and other U.S. Government agencies and industry in appropriate cases.

The regulation includes, in section d, the criteria that the Department of State shall use in makings its commodity jurisdiction determinations as to whether an item properly belongs on the U.S. Munitions List (USML). These determinations are made on a case by case basis. It also includes the avenues for relief if a party wants to challenge a commodity jurisdiction decision:

A person may appeal a commodity jurisdiction determination by submitting a written request for reconsideration to the Managing Director of the Directorate of Defense Trade Controls. The Directorate of Defense Trade Controls will provide a written response of the Managing Director’s determination within 30 days of receipt of the appeal. If desired, an appeal of the Managing Director’s decision can then be made directly through the Deputy Assistant Secretary for Defense Trade Controls to the Assistant Secretary for Political-Military Affairs.

It is important to note that these decisions can not be challenged in court. Under the Arms Export Control Act (39 U.S.C. 2778(h)) the decision to include an item on the USML is not subject to judicial review.