Moving items within a treaty community

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1. Transfers inside the community

The International Traffic in Arms Regulations (ITAR) let treaty items circulate. Once an item has been exported under one of the Defense Trade Cooperation Treaties, members of the approved community may move it among themselves without a license (22 CFR 126.16(a)(4) and 22 CFR 126.17(a)(4)). Six conditions apply. The item must have been exported under the treaty or moved onto it from a license. Both parties must be members of the American or partner community. The transfer must be needed for an authorized end use, and the item must not be excluded and must carry the treaty marking. Both parties must keep records, and any required notice to Congress must have been given.

Within those limits, any transfer of a non-excluded item by a partner community member to another member of either community, for an authorized end use, is authorized (22 CFR 126.16(h)(1)). How the treaties define their communities and end uses is covered in how the defense trade treaties work.

2. Leaving the community needs approval

Anything outside those limits needs a license or prior written approval from the Directorate of Defense Trade Controls (DDTC). That includes a transfer for an end use the exemption does not allow (22 CFR 126.16(h)(2)). It includes a retransfer or reexport by a partner community member to a foreign person outside the community, or to an American person outside the American community (22 CFR 126.16(h)(3)). It also covers any change in use, by any foreign person, to an end use the exemption does not allow (22 CFR 126.16(h)(4)).

Those approvals follow the ordinary reexport and retransfer procedure in section 123.9 (22 CFR 126.16(h)(5)). An excluded item inside an eligible ship or aircraft keeps its own restrictions, and need separate authorization for any export, transfer, reexport, retransfer or change in end use (22 CFR 126.16(h)(6)). The ordinary reexport rules are covered in reexports, retransfers and end use assurances.

3. Forces deployed abroad

The treaties make room for partner forces operating outside their own territory (22 CFR 126.16(h)(7)). No license or prior approval is needed for five kinds of movement. An American community member may transfer items to partner defense elements deployed abroad on an authorized end use. It may also transfer them to an approved community member directly supporting those deployed elements. The partner community may reexport to the same deployed elements or their direct supporters. Each route must use the partner defense department’s transmission channels or the section’s own provisions.

The fifth case covers delivery to the partner defense department itself for an authorized end use (22 CFR 126.16(h)(7)(v)). That department may deploy the item as needed on official business at home or abroad. The item must stay under its effective control while deployed, and unauthorized third parties may not have access. For Australia, transmission channels include electronic transmission and carriage by a contracted carrier or freight forwarder that only transports or arranges transport (22 CFR 126.16(h)(7)(i)). The British section covers United Kingdom Ministry of Defence elements on the same routes, using United Kingdom Armed Forces transmission channels (22 CFR 126.17(h)(7)(i)).

4. Who may handle the freight

Unclassified treaty exports may be handled only by approved intermediate consignees (22 CFR 126.16(k)(1)). On the American side, these are registered and eligible exporters, and licensed customs brokers subject to background investigation who have passed a comprehensive customs examination. They also include carriers or forwarders, not exempt from registration, that are on the Defense Department’s Civil Reserve Air Fleet list of approved air carriers. On the partner side, they are partner community members and freight forwarders, customs brokers or carriers on the authorized intermediate consignee list on the DDTC website (22 CFR 126.17(k)(1)). Classified exports must meet the National Industrial Security Program Operating Manual (22 CFR 126.16(k)(2)).

5. Moving older exports onto a treaty

Items exported earlier under a license stay subject to that license’s conditions unless DDTC approves in writing a move to the treaty (22 CFR 126.16(i)(1)). An American exporter asks DDTC in writing, naming the items, the original licenses and the treaty end use (22 CFR 126.16(i)(2)). Licenses on file with customs stay there until DDTC approves retiring them, and others go back to DDTC with a letter citing the approval. An Australian community member asks its own government, which passes the request to DDTC (22 CFR 126.16(i)(3)). Moved items must then be marked under the treaty rules (22 CFR 126.16(i)(5)).

The excluded list can change (22 CFR 126.16(i)(4)). If an exported item is later placed on it, exporters must follow the Federal Register notice announcing the change. The item then leaves the treaty but stays on the Munitions List unless the relevant Federal Register notice says otherwise, and later reexports or retransfers go through section 123.9.

6. Proscribed destinations

Some movements must be reported at once. Registered American persons, those required to register, and partner community members must notify DDTC immediately of any actual or proposed sale, retransfer or reexport of treaty items to a country listed in section 126.1. The same applies to anyone acting for such a country (22 CFR 126.16(h)(8)). Anyone who knows or has reason to know of such a transaction must report it in writing to DDTC’s compliance office. The listed countries are covered in the ITAR policy of denial.

7. When the rules are broken

Exports, transfers, reexports and retransfers that do not meet the section’s conditions are violations of the Arms Export Control Act and the ITAR, open to criminal, civil and administrative penalties (22 CFR 126.16(n)(1)). Immigration and customs officers may inspect loading and unloading, and may investigate, detain or seize noncompliant or unlawful exports (22 CFR 126.16(n)(2) and 22 CFR 126.16(n)(3)). DDTC and those officers may demand documents about any treaty transaction (22 CFR 126.16(n)(4)). A foreign person who refuses to provide records within a reasonable time is suspended from the community, and can no longer receive items under the exemption or otherwise.

Key terms

Transfer	A movement of a treaty item within the partner community, or between the two communities.
Deployed elements	Partner defense forces operating abroad on an authorized end use.
Transmission channels	The partner defense department’s own means of moving items, including contracted carriers.
Intermediate consignee	A party that receives treaty items only to pass them on, without access.
Transition	A DDTC-approved move of a licensed export onto treaty treatment.

Every statement above links to the document behind it. The full source list for this piece is on the sources page.

This page describes public United States government programs for general information. It is not legal, regulatory or procurement advice, and it does not address the facts of any particular case.

How Sentfore supports this

Moving controlled items between communities and theaters is where planning meets the road. Sentfore works at the delivery end of defense programs in difficult environments, providing secure movement, protective security, facilities and life support. Requirements can be sent through the contact page.