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Notice to Exporters 2024/09, published on 1st May 2024, provides an update on the AUKUS, a trilateral defence partnership, announced in September 2021.
The partnership consists of two pillars. The AUKUS Security Partnership, published on 19th February 2024, provides more details. Pillar 1 focuses on supporting Australia to acquire its first conventionally armed, nuclear-powered submarine fleet (It does not involve the transfer of nuclear weapons to Australia). Pillar 2 focuses on cooperation in eight advanced military capability areas: artificial intelligence (AI), quantum technologies, innovation, information sharing and cyber, undersea hypersonic and counter-hypersonic, and electronic warfare domains.
The AUKUS Defence Ministers issued a joint statement relating to the defence partnership on April 8th, 2024.
Subsequently, the Notice to Exporters communication details the actions agreed upon by the AUKUS nations. The actions include reforming the three nation’s export control regulations “to the maximum extent possible licence free trade between and amongst nations.”
The US will reform ITAR (International Traffic in Arms) regulations for the purposes of the AUKUS partners and issue a draft exemption for the UK and Australia in May for an agreed-upon scope of goods and technology.
The Australian Department of Defence media release states, “These changes are designed to enable defence industry across all three countries to work more seamlessly in a license-free environment, whilst strengthening collaboration and making it easier to develop advanced scientific, technological and industrial capabilities.”
The UK will create a new OGEL, the Open General Licence for Exports, Transfers, and Supply and Delivery, under the AUKUS Defence and Security Partnership. The licence is available to review as a draft agreement, and comments are welcome by email to: exportcontrol.help@businessandtrade.co.uk up to 1st July 2024. Please include AUKUS OGL in the subject field when providing feedback.
The link to the draft licence is available to access via Notice to Exporters here.
Schedule 2 of the licence details the relevant export entry allowed under the licence, with specific items not permitted detailed in the corresponding section of the exclusion table.
The Technology List under ML22 excludes certain items that the AUKUS has asked to be excluded.
The NTE update advises that using the OGL will require the exporter to be on the AUKUS nations’ Authorised User list. The export transfer or supply and delivery must be to consignees and recipients who are also Authorised Users under the Partnership. Information on the Authorised User List will follow in due course.
The Australian Department of Defence has opened a public consultation until 31st May 2024, which can be accessed here. There will be a similar opportunity to provide feedback to US authorities regarding this new partnership and licensing arrangement.
The opportunity to provide feedback to the US Department of State is available until 31st May 2024. Further details on the proposed rule can be found here, which states;
The Department proposes to amend the ITAR to include an exemption to the requirement to obtain a license or other approval from the Department's Directorate of Defense Trade Controls (DDTC) prior to any export, reexport, retransfer, or temporary import of defence articles; the performance of defence services; or engagement in brokering activities between or among authorised users within Australia, the United Kingdom, and the United States. The Department also proposes to add a list of defence articles and defence services excluded from eligibility for transfer under the proposed new exemption, add to the scope of the exemption for intra-company, intra-organization, and intra-governmental transfers, to allow for the transfer of classified defence articles to certain dual nationals who are authorised users or regular employees of an authorised user within the United Kingdom and Australia; and revise the section on expediting license review applications by referencing new processes for Australia, the United Kingdom, and Canada.
If you are interested in exploring this topic further, you might find it worthwhile to consider the training courses and live clinics offered by Strong & Herd LLP:
Beginners Guide to Export Licensing Controls
Whether at the start of your learning pathway or as a standalone training session, this course will begin your journey to understand export licensing controls and how they work. Covering essential elements gives delegates an excellent springboard to understand what goods, technology or software could be controlled and review business-relevant areas in more detail.
Applying for and Using UK Export Licences
A practical session to explain the information needed to apply for individual licences and how to understand when an open licence is appropriate for a particular movement or transfer of controlled items. This workshop is designed to teach delegates how to use the export licensing system in the UK.
Focus On: Dual Use Export Compliance - The Dual-Use Exporter
This full-day session focuses on a topic relevant to many industry sectors: dual-use regulations. With licences now required for dual-use items moving between the UK and EU, the need to understand this topic has grown significantly. The controls are based on an item’s inherent capability, type of materials or technical ability, affecting many industry sectors, including chemical, metals, high-tech products, oil and gas industries, etc.
Trading With The USA: An Introduction to Defence Exports
A popular interactive training course designed for companies involved in the Defence, High Technology and Military environment. The USA have very heavy controls on some of its goods; incorrect end-use of certain US technology leads to potential fines and penalties. Ultimately being denied the right to trade with the USA. This course looks at the controls and regulations affecting goods that are caught under the EAR and ITAR
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