Overview
On March 25, 2015, the Directorate of Defense Trade Controls (DDTC) of the US State Department issued a new notice to industry, in coordination with recently announced changes to US arms control policy, concerning the export of US-origin military unmanned aerial systems (UAS). The standard DSP-83 Nontransfer and Use Certificate - which must be submitted as part of an initial application for a permanent export license of UASs subject to the US Munitions List of the International Traffic in Arms Regulations (ITAR) - now requires an addendum to paragraph 5 to be signed by the foreign end user and US license applicant. It appears that the terms and conditions included on the second page of the notice must be used verbatim and in the format as specified in the addendum to paragraph 5 of the DSP-83. Although the temporary export of US origin military UASs (e.g., marketing or demonstration purposes) will not require these new assurances at the time of export, any subsequent sale and permanent export must comply with guidance in the notice.
Of particular note, the addendum requires the end user to agree that the US-origin military UAS will be used in accordance with “international law,” including applicable humanitarian / human rights law and where there is a lawful basis for the use of force or self-defense under “international law.” The notice provides no guidance concerning the scope of “international law,” but does obligate end users to furnish technical and doctrinal training to UAS operators on the use of UASs to reduce the risk of unintended injury or damage. Transfer of title or possession of a UAS to any person not an officer, employee, or agent of a country is not permitted; end users must agree to maintain the security of the UAS and its related components, as well as take reasonable efforts to prevent unauthorized access to, loss of, or theft of the UAS. Finally, the UAS must be used only for purposes as specified in a DDTC-issued approval, and cannot be used to conduct unlawful surveillance or force against domestic populations.
At this time, it is not clear whether DDTC will issue an amendment to include the specified end use assurances as required language under the ITAR or additional guidance as part of a Federal Register notice. Nonetheless, we will continue to follow this topic and provide additional advisories as US arms control policy evolves and develops concerning the export of ITAR-controlled UASs. If you have any questions, please contact Ed Krauland at +1 202 429 8083, Andrew Irwin at +1 202 429 8177, Meredith Rathbone at +1 202 429 6437, or Jack Hayes at +1 202 429 6491 in our Washington office.
