Comments on: Ninth Circuit Bulldozes the Arms Export Control Act

By: Steve Shriber

Steve Shriber — Wed, 19 Sep 2007 19:57:53 +0000

I agree that at the time the Caterpillar D9 Bulldozer was exported from the United States it could have been considered a commercial item: defined by the U.S. Department of Commerce. However, at the time the D9 Bulldozer was used it had been “specifically designed, developed, configured, adapted, or modified for military application.” (22 CFR 120.3) In other words, at the time of use it would fit the criteria of a Defense Article; as defined by the U.S. Department of State.

It appears from this example; commercial items that can be used for military purposes were approved for FMF. Section 23 of the Arms Export Control Act, which authorizes the FMF program, only covers procurement of defense articles and services and design and construction services by friendly foreign countries and international organizations.

The Arms Export Control Act section IV defines “Defense Article” as:

(3) “defense article”, except as provided in paragraph (7) of this section, includes—

(A) any weapon, weapons system, munition, aircraft, vessel, boat, or other implement of war,
(B) any property, installation, commodity, material, equipment, supply, or goods used for the purposes of making military sales,
(C) any machinery, facility, tool, material, supply, or other item necessary for the manufacture, production, processing, repair, servicing, storage, construction, transportation, operation, or use of any article listed in this paragraph, and
(D) any component or part of any article listed in this paragraph,

but does not include merchant vessels or (as defined by the Atomic Energy Act of 1954 [42 U.S.C. 2011 et seq.]) source material (except uranium depleted in the isotope 235 which is incorporated in defense articles solely to take advantage of high density or pyrophoric characteristics unrelated to radioactivity), byproduct material, special nuclear material, production facilities, utilization facilities, or atomic weapons or articles involving Restricted Data;

It seems that under the AECA definition a Caterpillar D9 would qualify as an AECA “Defense Article.” If Defense Article as defined by the U.S. Department of State is implemented into qualifying for FMF: it would require that you take all U.S. Department of Commerce controlled items out of qualifying for FMF. If all of the commercial parts were taken out of an F-16: the remainder would be giant pile of U.S Department of State Defense Articles. Most every military end item incorporates a significant number of commercial parts and components.

I think the Ninth Circuit Court’s ruling is correct. I don’t think it changes the export requirements at all. A Caterpillar D9 Bulldozer still has the Export Control Classification Number 2B999.h.2. and the “Doobi,” as well as, the Israeli military modification kit for the Caterpillar D9 are listed on the United States Munitions list

By: Mike Deal

Mike Deal — Wed, 19 Sep 2007 18:20:59 +0000

You might recall one of Bill Reinch’s anecdotes about the export of the hulk of the ex-USS Bennington as scrap. Schnietzer Steel, recently collared for FCZPA violations, filed suit against the Dept. of the Navy in 1995 alleging that the export of the hulk violated the AECA and the APA. The district court dismissed on the basis of mootness because the hulk was already in India being torn down, but gave as a secondary reason that the plaintiff lacked standing to request relief on the basis of the AECA. I don’t think it was a published opinion but some idle law clerk ought to be able to find it in the DC District’s records.

By: Clif Burns

Clif Burns — Tue, 18 Sep 2007 22:36:45 +0000

Linda: If I understand your question correctly, I think the answer is no. The question is could the plaintiffs sue the U.S. Government for failing to adhere to the FMF requirement that only defense articles or services (or design and construction services) are eligible. The problem with that law suit is its not clear that the plaintiffs, or anyone else, has suffered a direct injury because of that decision and has standing to challenge it. Only the taxpayers were directly injured, and there are a fair number of cases saying that such injury doesn’t even support taxpayer standing.

By: Linda

Linda — Tue, 18 Sep 2007 22:29:33 +0000

Clif: I get your point and agree. I don’t think I asked my question well. Setting aside the judges decision. If the Israeli group challenged the original transaction as not allowed under FMF (ie. outside the scope of the AECA) would that have given them recourse against the U.S. government?

Not a lawyer and just curious.

Linda

By: Clif Burns

Clif Burns — Tue, 18 Sep 2007 19:14:56 +0000

Linda — The possibility remains, I think, that the Court could have found other reasons to justify invoking the political question doctrine rather than relying so directly on the FMF statute.

By: Linda

Linda — Tue, 18 Sep 2007 19:06:21 +0000

Point of clarification: So if I understand your point since the Cat equipment isn’t a defense article by definition and the bulldozer itself is not a “construction service” as provided for in the act, the original sale was flawed?

In other words, would the inclusion of the bulldozer in the original sale have to have been a point in the lawsuit and if not properly included then they could have sued?