International Legal Affairs: Volume 3, Number 3
Recent questions have arisen in the international arms community over retransfer assurances and end use restrictions on U.S. made products. While some of the U.S. restrictions on end use are familiar and will result in a U.S. export license being returned without action, other restrictions are placed on the end user, and are not intuitive or obvious.
At the most basic level, international buyers should know that the U.S. State Department exerts extra-territorial jurisdiction over all arms exports that originate from the U.S., jurisdiction over all U.S. citizens for actions committed domestically or abroad, and jurisdiction over all transactions involving U.S. made goods, whether the transaction occurs in the United States, or overseas. Realizing that this is a very broad statement, this article will focus on representative examples that illustrate re-transfer and end use restrictions.
Arms Exports That Originate From The United States:
In general terms, arms exports that originate from the United States will require a DSP-83 End User Certificate. The DSP-83 does exactly what it says – it identifies the end user, and certifies the end use. A DSP-83 may be found online at the U.S. State Department website: www.pmddtc.state.gov/licensing/documents/DSP_83.pdf. The certificate stipulates that, except as specifically authorized by prior written approval of the Department of State, the foreign consignee and foreign end-user will not re-export, resell or otherwise dispose of the significant military equipment enumerated in the application outside the country named as the location of the foreign end-use or to any other person. (See 22 CFR 123.10(a)) Absent an exemption, a DSP-83 is required for the export of significant military equipment, and an export license will not be issued by the U.S. State Department until a DSP-83 is completed and submitted in support of the export license application.
Within the DSP-83, one will find the following language within Block 6, the section pertaining to foreign end users:
“We certify that we are the end-user of the articles/data listed in item 5. Except as specifically authorized by prior written approval of the U.S. Department of State, we will not re-export, resell or otherwise dispose of any of those articles/data (1) outside the country in item 4 above, or (2) to any person. If the end-user is a foreign government, we certify that we will observe the assurances contained in item 8. We further certify that all of the facts contained in this certificate are true and correct to the best of our knowledge and belief and we do not know of any additional facts that are inconsistent with this certificate.”
By signing the DSP-83 as an end user, the signatory is certifying that the items subject to export are for their use. In addition, the end user agrees that the items being exported will not be re-exported, resold, or otherwise disposed of outside the destination country or to a third party. Is this enforced? Absolutely! While not performed frequently, members of the U.S. Embassy have been known to call upon end users to verify that the items are still in the possession of the end user, sometimes several years after the transaction has been completed.
In the event that the end user wishes to re-transfer the firearm outside of the destination country, the U.S. State Department requires that the end user request (and receive) approval for the planned transfer. In simple terms, the U.S. Government currently asserts extra-territorial jurisdiction over the firearm, for the entire lifespan of the firearm. The asserted foundation for jurisdiction is reportedly based upon the firearm having originated from the United States. The good news is that re-transfer authorization is usually granted, assuming that the firearm is not being transferred to a proscribed country, or a barred individual. While this may seem onerous, we’ll revisit the issue later in this article.
Occasionally, a group of shooters will form a group to buy a large number of items, and export all of the items from the U.S. in a single transaction. The typical plan involves distribution of the items to the various group members once the goods are received overseas. As noted above this is a risky course of action, considering the potential for future end use assurances. Given the language within Block 6, the signing party would be committing a falsehood – although the goods will likely remain within the destination country, the person signing the DSP-83 clearly intends to transfer the goods to other persons, in violation of the signed certification. In these cases, one legal alternative is to route the transaction through a firearms dealer.
Arms Exports That Involve Dealers Or Intermediate Consignees
Ever consider how firearm dealers overseas secure inventory? Much like dealers located in the United States, foreign firearms dealers that wish to purchase U.S. made firearms work with U.S. firearm manufacturers and exporters. Similar to exports to an individual, a dealer is typically asked to complete and sign a DSP-83 in support of the export transaction. In the case of a firearms dealer, Block 7 of the DSP-83 is utilized. Block 7 states:
“We certify that we are importing the articles/data listed in item 5 for delivery to the end-user in item 3. Except as specifically authorized by prior written approval of the U.S. Department of State, we will not re-export, resell or otherwise dispose of any of those articles/data (1) outside the country in item 4 above, or (2) to any person, including the end-user, if there is reason to believe that it will result, directly or indirectly in disposition of the articles/data contrary to the representations made in this certificate by any party. We further certify that all of the facts contained in this certificate are true and correct to the best of our knowledge and belief and we do not know of any additional facts that are inconsistent with this certificate. We will promptly send a supplemental certificate to the U.S. applicant in item 2 disclosing any change of facts or intentions set forth in this statement.”
Using the above example of a group of shooters that place a combined order, the intermediate consignee would sign within Block 7, certifying that the goods are intended for distribution within the destination country. In this manner, a party may legally retransfer firearms and related goods within the destination country without prior retransfer approval from the U.S. Government.
What Is A Proviso?
As defined, a proviso is a restriction, stipulation or condition. When applied to an export permit, a proviso provides limits to the export transaction. Placed within the export license, the proviso is an integral part of the export license, as it limits the actions of the exporter, the intermediate consignee, and occasionally, the end user. Usually, a proviso provides an expiration date on the export license, limits the end use of the exported item, or requests that additional acts be performed prior to completing the export. When shipping firearms to Central America, it is not uncommon to see a proviso requesting that the exporter provide the U.S. Government with serial numbers of the firearms being exported. Similarly, common parts used on AR-15 type rifles may have a restriction that the parts may only be used for the manufacture of .22 LR caliber rifles, or reiterate that the parts may only be sold within the destination country. Similar to retransfer restrictions on a DSP-83, the proviso should not be violated.
Violations – What’s The Big Deal?
The position held by the U.S. State Department regarding end use restrictions is generally not popular with most foreign end users. In discussions with foreign end users, a common refrain is that the firearm has been purchased, has left the United States, and that upon reaching the end user, the U.S. should have no further involvement or jurisdiction over the commodity. While this sentiment may prove to be popular in the international community, those that are contemplating potential violation of U.S. imposed restrictions should know that enforcement actions are undertaken. The United States Government may not be the most popular on the world stage, yet it currently has enormous resources (whether investigative or criminal prosecution) to ensure compliance. Think it can’t or won’t happen? Think again. The United States Government has detained, arrested, extradited, and successfully prosecuted individuals located outside of the U.S. for violating end user assurances. Similar prosecutorial actions have been successful against individuals failing to secure approval prior to re-transferring and/or re-exporting firearms that originated from the United States. Knowingly committing a violation is not a recommended course of action.
The export of arms from the United States is not straight forward. Nevertheless, foreign buyers can protect themselves by reading what they sign, by thinking through the transaction, and by taking a pro-active position in ensuring compliance with U.S. law. While compliance may seem silly and inconsequential, the threat of U.S. criminal prosecution is real and should not to be tempted. The ramifications of even an alleged violation could act to restrict future travel plans to the United States, place the offender on a prohibited persons list, or worse. Finally, readers are reminded that the advice contained within this article should not be construed as legal advice, as every situation poses a unique set of facts and circumstances. When in doubt, seek competent legal counsel to determine your legal options and limitations.
Mr. Wong is a Washington licensed attorney. He regularly provides legal counsel to manufacturers, importers, and exporters in the firearms and defense industries via his law firm, The Firearms Law Group. He may be contacted via email at jmwong@FirearmsLawGroup.com.