By Jim McShane, Export Solutions

The revision of USML Category XII was first published as a proposed rule on May 5, 2015, for public comment. The number of public comments received caused the Department of State to reevaluate the original proposed rule change and to draft a new proposed rule change (published February 19, 2016).

This second proposed rule change addresses many of the points raised by public comments. Specifically, that the previous proposal covered many items used in commercial and applications. Public comments sought to have the Department limit the USML controls for most paragraphs to items specially designed for the military. DDTC accepted a large number of the comments and sought to clarify items and jurisdiction. The Department also made a number of clarifications and changes to subsections of the category.

There are two significant changes in this new Proposed Rule:

  • This proposal begins to utilize the concept of “Design Intent” of the manufacturer for determining controls. Contemporaneous documents are required to support the design intent; otherwise, use by a military end user will establish that the item was specially designed for a military end user.
  • A new term appears, which has not previously been used or defined in the ITAR – “Military End User.” A Military End User is defined in the new Note to Category XII as the national armed services, National Guard, national police, government intelligence or reconnaissance organizations, or any person or entity whose actions or functions are intended to support military end uses.

You can read the full version of the proposed rule here. DDTC will accept comments up until April 4, 2016, but you can comment any time on our blog below. So, what do you think? Does this second version strike a good balance and bring clarity to Category XII?

Jim McShane is a Sr. Consultant, Trade Compliance for Export Solutions -- a full-service consulting firm specializing in ITAR and EAR regulations.