WASHINGTON, D.C. – Today, Congressman Roger Williams (R-TX), Chairman of the House Committee on Small Business, along with Reps. Tracey Mann (R-KS), Mark Alford (R-MO), Eli Crane (R-AZ), and Aaron Bean (R-FL) wrote to Under Secretary of Commerce for Industry and Security regarding the Bureau of Industry and Security’s (BIS) recent 90-day pause on issuing commercial firearm export licenses. Chairman Williams issued the following quote:

“The Biden Administration is continuing its relentless attack on small businesses with yet another decision that will only make our entrepreneurs’ lives more difficult,” said Chairman Williams. “Moreover, this decision could very well be in violation of our Second Amendment – which I will not stand for. I am eager to hear from the BIS on this issue and hope to have a detailed response with their justification.”

Read the full letter here.

Read excerpts from the letter below:

“The House Committee on Small Business writes to inquire about the Bureau of Industry and Security’s (BIS), recent 90-day pause on issuing commercial firearm export licenses. This prohibition places a substantial burden on those businesses and individuals that rely on exporting as a source of income and for manufacturers of weapons and ammunition. It appears that the Department of Commerce and BIS may not have properly considered the impact of this decision on American businesses, especially smaller entities, nor sufficiently rationalized its decision to comply with the Constitution and its principles.

“The Committee is unsure of how to properly characterize the document the BIS’s made its announcement with, as it is listed as a Frequently Asked Question (FAQ) document. A FAQ document hardly seems like the proper venue for announcing a restriction that touches and concerns a fundamental right enumerated in the Bill of Rights. Further, this announcement does not adequately explain the basis for why such a prohibition is necessary. The FAQ document’s only rationale for this action is that it ‘will enable the Department 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.’ While these reasons could potentially be sufficient if fully explained, BIS has not articulated why these things are of concern, to what extent an issue exists, nor does the BIS tie this action, either directly or indirectly, to any ongoing foreign policy issues. Additionally, in this order the BIS did not prohibit licensure for the export of Torture Devices (ECCN 0A983). If the BIS’s order is based on the fear of human rights abuses, this seems a more obvious place to start. 

“The BIS’s actions, are not rooted in a delegation from Congress as was the case in United States v. Curtiss-Wright Export Corp., and the document contains far too little information to support a claim of unilateral executive authority. What’s more, this FAQ document borders on carrying the force of law, meaning it may require an actual rulemaking to effectuate lawfully under the Administrative Procedure Act. For example, in General Electric Company v. E.P.A., the D.C. Circuit found that a guidance document issued by the Environmental Protection Agency (EPA), which outlined when and how it would accept applications for plans to conduct certain types of waste disposal, carried the force of law, and required a rulemaking. Rulemakings which have a significant impact on a substantial number of small entities are required to comply with the Regulatory Flexibility Act, and explain the rules impact on small entities.

“It is clear that this pause will have negative impacts on small entities, which this FAQ document does not, in any way, consider. While this FAQ document is not itself a rule, notwithstanding whether this action requires a rulemaking, it is certain to have economic effects. These effects will be amplified for small businesses, who are less financially insulated from changes in the economy; especially when those changes may upend their business for 90 days. Additionally, this ‘pause’ serves as an outright ban on new, potentially small exporters entering the market. Additionally, the FAQ document lacks important details and is difficult to find on the BIS’s or Department of Commerce’s website. It is unclear how the BIS anticipates businesses, especially smaller businesses, would even understand that this moratorium has been put in place, let alone understand how to comply.”

Background:

Signatories include Chairman Roger Williams (R-TX), Rep. Tracey Mann (R-KS), Rep. Mark Alford (R-MO), Rep. Eli Crane (R-AZ), and Aaron Bean (R-FL).

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