(90) End Use Certificates
The DoD policy for End Use Certificates (EUCs) is found in DOD Directive, 2040.3, End Use Certificates. ( http://www.dtic.mil/whs/directives/corres/pdf/204003p.pdf )
(a) End Use Certificates (EUCs) are written agreements in connection with the transfer of foreign military equipment or technical data to the United States that restrict the use or transfer of that item by the United States. EUCs are divided into three categories, Category I, II, and III, and each category has specific signature approval authorities.
(b) Contracting officers are encouraged to find an alternate supply source or negotiate an alternate delivery method to avoid the necessity of an EUC. Procedures are available, however, if other alternatives are not feasible and it is in the best interests of the United States to purchase foreign products subject to an EUC. When requesting an EUC, plan sufficiently in advance to preclude any need for a request to expedite. Processing timelines, especially with coordination external to DLA, expressly limit DLA's ability to expedite EUCs.
(c) Contracting officers should consult with the local Office of Counsel for assistance in determining the appropriate category of the EUC request. EUC requests can vary in their language and format since foreign countries establish their own security requirements, and there can be also be variation in format within a country’s export offices.
(d) For EUC requests from any European country, concurrently contact the DLA-E Office of Counsel, through local counsel, while preparing the EUC request. DLA-E may be able to coordinate with the U.S. Army Europe (USAREUR) on the approach for addressing the contractor’s EUC request. These offices are familiar with export license issues and may be able to assist in gaining an export license for the supplier without the need for a EUC. Concurrently, proceed with the guidance provided in (e), (f), or (g) below for EUC procedures.
(e) Category I EUCs. Category I EUCs are for items that the United States may use for defense purposes. See paragraph 3.2 of DODD 2040.3 for the definition of “defense purposes”. The United States may make direct use of such Category I EUC items in any part of the world and may transfer these items by means of grant aid, International Military Education and Training (IMET) programs, Foreign Military Sales (FMS), and other security assistance and armaments cooperation authorities. Items are designated as Category I EUCs for security purposes by the foreign government, or based upon nonproliferation agreements to which the U.S. is a party. This category of EUCs may apply to the procurement of missile technology. The Director, DLA may authorize execution of the individual Category I EUC and then delegate signature to the Component Acquisition Executive. See DLAD PGI 25.802-71(90)(e) for processing procedures for Category I EUCs and a template. Contracting officers should provide the request to J-7 for a signed Category I EUC no less than 30 days before it is needed.
(f) Category II EUCs. Category II EUCs are any EUCs that are not either Category I or III. The Director, DLA may approve the use of a Category II EUC, after the procedures in DODD 2040.3 paragraph 6.1.2 have been followed, and may authorize the Component Acquisition Executive to sign the individual EUC. These procedures require a minimum of 21 days advance notification to the Office of the Under Secretary of Defense (OUSD)(AT&L) who may coordinate with the U.S. Department of State. Unless DLA is contacted by OUSD(AT&L) with specific instructions during this time frame, concurrence may be assumed after expiration of the 21 day period. The Director, DLA must determine that notwithstanding any use or transfer limitations, the purchase of the item is in the U.S. national interest. The Director, DLA may authorize execution of the individual Category II EUC and then delegate signature to the Component Acquisition Executive. See DLAD PGI 25.802-71(90)(g) for processing procedures for Category II EUCs and a template. Provide the package requesting approval of a Category II EUC to J-7 no less than 60 days before it is needed.
(g) Category III EUCs. Category III EUCs are those that limit the right of the U.S. Government to use the item in any part of the world, or limit the right of the U.S. Government to provide the item to allies engaged with the U.S. in armed conflict with a common enemy. The Military Service Secretaries and the Directors of Defense Agencies are prohibited from approving EUCs in this category, and only OUSD may grant a waiver to this prohibition. With this waiver, the agency is then authorized to execute an EUC with the requesting government for the specific acquisition. OUSD will likely require that the agency establish procedures to ensure that any possible re-transfer of the equipment does not occur without obtaining prior approval from the country that requested the EUC. With the waiver from OUSD, the Director, DLA would then be authorized to approve and sign a Category III EUC for a specific acquisition or can authorize the Component Acquisition Executive to sign the individual EUC. Please note that the waiver is not a class waiver for the item. However, task and delivery orders for that specific acquisition (including multiyear or multiple year contracts) under the resulting EUC would not necessitate a further EUC. DLA activities should specify whether the procurement involves a multi-year contract or task/delivery orders in the package for OSD consideration. See DLAD PGI 25.802-71(90)(g) for instructions and a waiver template for Category III EUCs. Provide the request to J-7 no less than 90 days before it is needed.
(h) All EUC requests or requests for waivers must be sent thru J-7 for processing and approval by the Director, DLA. See DLAD PGI 25.802-71 (90) for coordination procedures.
(i) J-71 will promptly forward copies of signed EUCs of all three categories to OUSD(AT&L).
