The UK and the US have now confirmed that UK Baseline Personnel
Security Standard (BPSS) meets the ITAR requirements for
security screening under ITAR 126.18(c)(2). This
understanding is recorded in an exchange of letters dated 11
August 2011 between the US and the UK that was published this
week. This exchange is not legally binding but provides
the practical confirmation necessary to implement the use of
BPSS to meet the ITAR exemption in the UK.
BPSS screening has been applied to UK Government employees since its
introduction in 2006. It comprises verification of identity, nationality
and immigration status, employment history for at least three years and unspent
criminal convictions. Time spent abroad for over six months in the past
three years must also be accounted for. As a practical matter BPSS
clearance for individual with extensive periods of residence outside the UK can
be much more time consuming to accomplish and may in some cases not be readily
accomplished.
Guidance on application of the BPSS beyond government departments has been
published by the Centre for the Protection of National Infrastructure and can be
found on their website at
www.cpni.gov.uk.
There remain a number of questions about the application of the BPSS screening.
One issue is that the ITAR exemptions apply only to employees but the UK is
hopeful of getting confirmation from the US that temporary staff or contract
employees will be covered by the BPSS clearance for purposes of ITAR compliance.
The exchange of letters acknowledges that any investigation into diversion of
defence articles would involve an exchange of information including individual
data that may be considered private. The letter from the US to the UK also
commits to protecting such information within Government channels and to
complying with existing protocols and agreements for sharing such data for
purposes of law enforcement.
Nevertheless, compliance with UK privacy and employment laws in all aspects of
compliance with the ITAR exemptions is up to each end user or consignee, as
pointed out in the MoD's Q&A Matrix on the ITAR exemptions. Some of the
national legal issues raised in the EU were covered in our recent note on the
ITAR exemptions.
Contact Us
You can also
contact your regular Bird & Bird advisor to be referred to an ITAR expert in
other jurisdictions than those listed.
The content of this update is of general interest and is not
intended to apply to specific circumstances. The content should
not, therefore, be regarded as constituting legal advice and
should not be relied on as such. In relation to any particular
problem which they may have, readers are advised to seek
specific advice. Further, the law may have changed since first
publication and the reader is cautioned accordingly.
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