Exporting military goods to the United States

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Overview

If you are a UK company which exports controlled military goods to the United States you will need to comply with US controls, specifically the International Traffic in Arms Regulations (ITAR).

ITAR is the set of US government regulations that control the import and export of defence related items and services as listed on the United States Munitions List (USML).

The requirement to comply with ITAR is in addition and separate to any responsibilities for applying for a UK export licence resulting from UK export control legislation as administered by the Export Control Organisation, part of the Department for Business, Innovation and Skills (BIS).

Under the US-UK Defence Trade Cooperation Treaty the UK’s ECO (Export Control Organisation) has issued a specific Open General Export Licence. As with all other OGELs issued by the ECO you need to meet all the specified terms and conditions if you are considering exporting under authority of the licence.

ITAR, UK companies and dual and third country nationals

ITAR specifies that information and material concerning defence and military related technology (for items on the US Munitions List) may only be shared with US persons, unless authorisation is received from the US Department of State or a special exemption is used.

In 2011 the US Department of State issued a rule change to ITAR (section 126.18) which provides an exemption for UK end user and consignee companies only. This removes the need to obtain prior approval from the US Department of State for transfers of unclassified defence articles (including unclassified technical data) to dual and third country national employees of foreign business entities, foreign government entities or international organisations that are approved end users or consignees for such defence articles.

If you are an approved UK end user or consignee company then you should be aware of the regulations and the exemption, which is subject to satisfying certain screening and record keeping requirements.

The US government has agreed that the UK pre-existing Baseline Personnel Security Standard (BPSS) meets the screening requirements of ITAR rule 126.18(c)(2). However, if you choose not to use the BPSS you must ensure you are able to meet the screening requirements through suitable, alternative means.

To help you comply with the ITAR regulations concerning dual and third country national employees, you can download a model technology security plan (MS Word Document, 479KB). You can also download a question and answer matrix on the ITAR rule change (76 FED Reg 28174) (MS Word Document, 368KB).

US-UK Defence Trade Cooperation Treaty

The treaty came into force in the UK and the US on 13 April 2012 and is recognition of the close ties between our 2 countries.

The treaty’s aims

to streamline and improve defence export processes between both countries
to give UK industry access to United States government solicitations and contracts
to further and protect the essential security and defence of both the US and UK
to speed up the supply of US made equipment to the UK as well as to the US
to improve interoperability between UK and US forces
to support military operations and facilitate cooperation between both UK and US defence industries

The UK is the largest foreign supplier of defence equipment to the US and the US/UK Defence Trade Cooperation Treaty is another tool for defence articles and services to pass between the 2 nations.

What the treaty covers

The treaty allows for the transfer of non-exempt US defence articles and services listed on the United States Munitions List (US ML). Such transfers are only allowed between pre-approved US and UK government agencies and contractors (referred to as the ‘Approved Community’) without ITAR export licences issued by the US Department of State.

The ‘quid pro quo’ for the removal of the need for US issued export licences is that while treaty material is in the UK it will be subject to specific marking provisions, protected under the Official Secrets Act and handled only by those with an appropriate security clearance.

Exports of the specified defence items under treaty terms are only possible where the exports are in support of:

mutually agreed combined military and counter terrorism operations
mutually agreed co-operative security and defence research, development, production and support programs
mutually agreed security and defence projects where the end user is the UK or US government

The US Department of State’s Directorate of Defense Trade Controls maintains the documents governing the use of the Treaty, under a treaties section marked ‘United Kingdom’ at Defense Trade Cooperation Treaties & Resources

These documents address the following subjects:

membership of the ‘approved community’ in the UK and US
procedures to protect articles and services received under the treaty from unauthorised disclosure
procedures for obtaining UK and US government approval to re-export or re-transfer such articles
rules concerning record keeping and notifications related to such articles
mutually agreed arrangements for enforcement of the procedures under the treaty and arrangements for consultation and dispute resolution

The treaty does not affect the UK’s existing international obligations and commitments concerning the export and supply of defence articles.

The treaty is without prejudice to and does not replace the current licensing mechanisms for importing US defence articles and services into the UK. Its provisions give members of the ‘approved community’ the choice as to whether to use the mechanisms which form part of the treaty or to continue to use current US licensing arrangements.

What to do if you are seeking to export military goods from the UK to the US under the treaty

The UK has issued a new Open General Export Licence (Exports under the US-UK Defence Trade Cooperation Treaty which permits the export or transfer of specified military goods or technology under the treaty from the UK to the US.

Use OGEL Checker to determine if you can meet all the terms and conditions of an OGEL.

If you are unable to meet the terms and conditions of this licence and still require an export licence to export military items to the United States then you need to either:

register for another ECO issued OGEL - subject to meeting the relevant terms and conditions.
apply for either a Standard Individual Export Licence (SIEL) or an Open Individual Export Licence (OIEL).