Government-to-Government
Section 3(a) of the AECA specifically addresses third party transfers:
"In considering a request for approval for any transfer of any weapon, weapons system, munitions, aircraft, military boat, military vessel, or other implement of war to another country, the President will not give his consent . . . to the transfer unless the United States would itself transfer the defense article under consideration to that country."
The divesting government is responsible for submitting the written third party transfer request to the USG for consideration. This request should be sent via the SAO/Embassy, who in turn should send the completed transfer request form via message/cable to PM/RSAT, with information copies to DSCA and the SAO of the proposed third party recipient. A copy of the original request for transfer should also be emailed or faxed to PM/RSAT at (202) 647-9779. This allows immediate initiation of action. PM/RSAT will not begin processing until all necessary information is provided.
Government-to-Private Entity
Since the mid-1980s, the Department has had a restrictive policy with regard to third party transfers to private entities of U.S.-origin military equipment exported on a government-to-government basis. This is particularly true of defense articles defined as Significant Military Equipment (SME) on the U.S. Munitions List (USML) of the International Traffic in Arms Regulations (ITAR). The Department's policy of denial has been based on its views that the retransfer of such defense articles to private entities does not support the USG foreign policy interests for which these articles were originally sold or granted to foreign governments. Exceptions to this general policy of denial may be considered:
*** If the recipient is a U.S. private entity, the entity must subscribe to end-use and retransfer assurances; title may not transfer until it is within customs jurisdiction of the United States. It is tougher to qualify for exception in case of a U.S. private entity; both the private entity and the recipient government exercising legal jurisdiction must subscribe to end-use and retransfer assurances.
Disposal
Disposal constitutes a change in end-use for which prior consent from DOS is required for non-consumable items. After an item has been demilitarized (in accordance with the Defense Demilitarization Manual), it is no longer a defense article and may be disposed of without further U.S. involvement. This also applies to scrap (Condition Code S) items, including unserviceable consumable items, non-consumable items beyond repair, and items where demilitarization or special controls have applied. Items may also become non-defense items through consumable item wear-out, incineration or melting, controlled deep water dumping, or comparable destruction. Cannibalization is viewed as disposal if controlled parts removal causes item migration to non-defense article status. Because the potential for unauthorized disclosure of classified or sensitive information, safety concerns, and other factors vary among countries, DoD disposal procedures are encouraged.
The divesting government is responsible for submitting the written disposal request to the USG for consideration. This request should be sent via the SAO/Embassy, who in turn should send the completed transfer request form via message/cable to PM/RSAT, with information copies to DSCA and the SAO of the proposed third party recipient. A copy of the original request for transfer should also be emailed or faxed to PM/RSAT at (202) 647-9779. This allows immediate initiation of action. PM/RSAT will not begin processing until all necessary information is provided.
