2016 Year-End USML Updates
The Directorate of Defense Trade Controls (DDTC) has revised USML Categories VIII, XII, XIV, XVIII, and XIX effective December 31, 2016.
The revisions to Categories XII (Fire Control/Sensors/Night Vision), XIV (Toxicological Agents), and XVIII (Directed Energy Weapons) under the Export Control Reform (ECR) process are found in Federal Register notices 81 FR 70340 and 81 FR 49531.
In addition to increased detail and technical performance thresholds, the revision of Category XII also includes minor revisions to related parts of Categories VIII, XI, XIII, and XV. VIII(e) (aircraft inertial reference systems), XIII(a) (cameras), and XV(c) (GPS equipment) have been removed and reserved with their contents now covered by the revised Category XII. Radar and sensor specifications in XI(a)(3)(ii) and (a)(10) are also revised.
Revisions to Category XIV, which was already highly detailed, include the addition of XIV(a)(5) “Chemical warfare agents not enumerated above adapted for use in war to produce casualties in humans or animals, degrade equipment, or damage crops or the environment.” XIV(b) and (g) are revised to identify biological agents and antibodies not previously specified. Tear gasses and riot control agents are moved to the jurisdiction of the Department of Commerce.
As revised, Category XVIII is actually shorter, with a smaller list of directed energy weapons systems.
For previously-revised Categories VIII (Aircraft and Related Articles) and XIX (Gas Turbine Engines and Associated Equipment), some articles made subject to the EAR will again be subject to the ITAR (81 FR 83126). DDTC’s rationale is that they “constitute or are specially designed for next-generation technology.” Unshipped balances on Commerce licenses may not be used after the effective date, requiring a State Department authorization. Any reexport or retransfer of articles previously subject to the EAR will be subject to the ITAR.
As a result of the changes in USML categories, DDTC is also updating licensing forms and batch Common Schema. The new versions will be 9.3 for the DSP-5, DSP-61, and DSP-73 forms, version 3.2 for the DSP-85, and version 7.6 for the Common Schema. The new versions have been posted on the DDTC website and must be used starting January 3, 2017. DTrade will be down for maintenance from 6pm December 30, 2016 until 7am January 3, 2017.
In related news, Section 1292 of the 2017 National Defense Authorization Act (NDAA) (S.2943), signed by the President on December 23, 2016, states that the Secretaries of Defense and State should recognize India as a “major defense partner” and improve cooperation. However, this does not currently require any specific amendments to the AECA or ITAR. The NDAA does direct “an assessment of the defense export control regulations and policies that need appropriate modification, in recognition of India’s capabilities and its status as a major defense partner.”
(None of the information is intended to be authoritative official or professional legal advice. Consult your own legal counsel or compliance specialists before taking actions based upon this blog or other unofficial sources.)