PERUJuly 2009

TechnologyTransfer and Export

ControlsSAM-I

Overview

Technology Transfer & Export Controls (Introduction)

Controlled Unclassified Information Foreign Disclosure and the National

Disclosure Policy (NDP) Export Approval/License Process International Visits

International Programs Security

Total effort that safeguards information/technology identified as requiring control

Generated by, provided to, or transferred in an international program

USG Agencieswith Oversight of Exports

Department of Commerce: Dual-use and non-military articles

Department of State: Military articles

Department of Defense: Review agency

Defense Technology Security Administration (DTSA)

Key Players in Tech Transfer and International Programs Security

Arms Export ControlAct (AECA)

ITARMunitions List (USML)

Export Administration

Act (EAA)

EAR Commerce Control

List (CCL)

Department of StateDepartment of

DefenseDepartment of

Commerce

Director of Defense Trade Controls

(DDTC)

Bureau of Industry and Security

(BIS)

Undersecretary(Acquisition

Technology and Logistics)

Undersecretary(Policy)

Undersecretary(Intelligence)

DoD Policy on Technology

A valuable, limited national security resource

Protected and invested in pursuit of national security objectives

International trade is key to strong U.S. industrial base

Export controls in way to minimally interfere with legitimate trade

What is Technical Data*? Information relating to defense articles or

defense services and required for

Includes blueprints, drawings, photographs, plans, instructions, and documentation

Software as defined in U.S. Munitions List Does not include basic marketing info on

function, purpose or general descriptions of defense articles

* ITAR, 22 CFR § 120.10

designdevelopmentproductionmanufactureassembly

operationrepairtestingmaintenancemodification

1002 - 9

Export Decision Criteria

Comprehend the 2 fundamental security considerations that influence participation in International Programs (IPs)

Identify the 3 documents that provide the legal and national policy basis for security requirements in most IPs

Describe the 3 conditions that must be agreed to by a foreign government or international organization before international transfers occur

Distinguish the 2 activities associated with IPs based on the government-to-government principle

9

1002 - 10

Access + Protection =Export and Disclosure Authorization Decisions

Fundamental Considerations

1. AccessSharing of U.S. defense articles or information is in the best interests of the U.S.

2. ProtectionMaintain security and provide security substantially the same as that provided by the U.S.

10

1002 - 11

Legal and Policy Basis

1. Arms Export Control Act (AECA)

2. Executive Order (E.O.) 12958

3. National Security Decision Memorandum (NSDM) 119

11

1002 - 12

Legal and Policy Basis

AECA

Forms the legal basis for the security requirements of most DoD International Programs

Governs export of defense articles and services

Covers commercial and government programs

Implemented by ITAR (State Dept) which contains U.S. Munitions List (USML)

12

1002 - 13

Legal and Policy Basis

AECA Security-related conditions

1. Not transfer title or possession without U.S. consent

2. Not use or permit use for other purposes without U.S. consent

3. Maintain security and provide substantially the same degree of protection

13

1002 - 14

Legal and Policy Basis

E.O. 12958

Establishes the Executive Branch’s National Security Information Program

Legal basis to protect Foreign Government Information (FGI)

Implemented by

Information Security Oversight Office (ISOO) Directive 1

DoD 5200.1-R

14

1002 - 15

Legal and Policy Basis

E.O. 12958

Classified information cannot be transferred to a third party without the consent of the originator

15

1002 - 16

Legal and Policy Basis

NSDM 119 Governs decisions on disclosure of

Classified Military Information (CMI) to foreign governments & international organizations

Reiterates basic requirements of the AECA and E.O. 12958

16

1002 - 17

Government-to-Government Principle

Governs TWO activities related to International Programs:

1. Disclosure/Export authorizations decisions = government-to-government decision

2. Transfers of classified information and material = government-to-government transfer

17

What Is an Export*?

Sending/taking defense articles out of U.S. in any way Transferring registration, control, or ownership to a

foreign person of any aircraft, vessel, or satellite covered by U.S. Munitions List in U.S. or abroad

Disclosing (including orally and visually) or transferring any defense article or technical data:

To embassy, agency or subdivision of a foreign government in U.S.

To a foreign person in U.S. or abroad

* ITAR, 22 CFR § 120.17

NNAVOIDAVOID

Dealing with Foreign PersonsDoDD 2100.3

FFAALLSSEE

IMM

PPRREESSSSIIOO SS

Controlled Unclassified Information (CUI)

Unclassified information to which access or distribution limitations have been applied

Or official government information that is unclassified, but has been determined by designated officials to be exempt from public disclosure under the Freedom of Information Act (5 USC § 552)

Freedom of Information Act5 USC § 552

Openness in government Any person can access agency files Unless the record or part of the record is

exempt from disclosure DoD Directive 5400.7 - DoD Freedom of

Information Act Program implements FOIA with DoD, and

Provides guidance for FOUO markings Official U.S. Government unclassified

information must be reviewed prior to release

FOIA Exemption # 3 Secretary of Defense Authority

Public Law 98-94 (10 USC § 130) provides the Secretary of Defense with the authority to withhold from the public: Unclassified critical technical data With military or space application In the possession of, or under the

control of a DoD

National Disclosure Policy

Framework and mechanism for implementing the security requirements of the AECA, E.O. 12958 and NSDM 119 for the transfer of Classified Military Information

Classified Military Information (CMI)

CMI is information

Requiring protection in interest of national security

Under control or jurisdiction of DoD or its departments/agencies

National Security Decision Memorandum 119

Governs decisions on foreign disclosure of classified military information

Assigns implementation of NDP to Secretaries of State and Defense

Other US Government departments and agencies when appropriate

Establishment of mechanism for effective implementation of policy

Conduct periodic on-site surveys

Develop information for General Security Agreements (GSA)

National Disclosure Policy Committee (NDPC)

Department of Energy Department of Energy Director,Director,

Central IntelligenceCentral Intelligence

NDPC NDPC

Secretary Secretary Secretary Secretary of ofof of Defense StateDefense State

Other Departments Other Departments andand

AgenciesAgencies

National Security Council National Security Council

President President

General Members:OSD Chairs Air ForceState Dep ArmyJCS Navy

Special Members:USD (P) DIAUSD (AT&L) MDAUSD (I) NGANSAAsst Sec Def (NCB)Asst Sec Def (NII)

Basic National Disclosure Policy

Governs decisions on disclosure of CMI Five disclosure criteria:

1. Supports U.S. foreign policy

2. Not jeopardize U.S. Military security (damage assessment)

3. Recipient’s capability and intent to protect

4. Benefit to the USG (POL/MIL/National Security)

5. Release limited to that necessary to satisfy U.S. goals

Security Surveys

Purpose - Enables the NDPC to determine by physical on-site review, whether a particular foreign government has the capability to protect CMI substantially the same as the United States Provides for the exchange of information Reviews foreign governments security laws and

regulations U.S. Embassy views also obtained

Evaluates foreign government and industry Personnel security Information control Physical security

General Security Agreements

Negotiated via diplomatic channels Affords classified material substantially the same

degree of security protection as the releasing government would provide to its own classified information.

Provides for use limitations Restricts third party transfers and protects proprietary

rights Provides for reporting losses or compromises Commits to protect any classified information released

to a third party

CATEGORYI Firearms, Close Assault Weapons and Combat ShotgunsII Guns and ArmamentIII Ammunition/OrdnanceIV Launch vehicles, Guided Missiles, Ballistic Missiles,

Rockets, Torpedoes, Bombs and MinesV Explosives and Energetic Materials, Propellants, Incendiary Agents and Their ConstituentsVI Vessels of war and Special Naval EquipmentVII Tanks and Military VehiclesVIII Aircraft and Associated Equipment..XX Submersible Vessels, Oceanographic and Associated

EquipmentXXI Miscellaneous Articles

The U.S. Munitions List

Export Forms and Applications for Licenses

(Part 123 & 126)

DSP-5Permanent export unclassified technical data or equipment

DSP-61 Temporary import of unclassified defense articles (in-transit)

DSP-73 Temporary export of unclassified defense articles

DSP-83 Non-transfer and Use Certificate DSP-85 Permanent/Temporary Export/Import

of classified articles/technical data DSP-94 FMS shipments DS-2032 Registration Form

International Visits Program (IVP)

Controls and facilitates visits by foreigners to DoD and contractor facilities

Uses automated Foreign Visit System (FVS) for processing requests

Also covers visits by DoD personnel and US contractors to foreign countries

Purposes of Visit Requests

Facilitate administration (scheduling)

Provide security assurance(if classified - clearance, Need To Know, government sponsorship)

Authorize disclosure / export

Types of Visits

One-time (single; usually less than 30 days; for a specific purpose)

Extended (single; up to one year; supports government approved program or contract)

Recurring (intermittent; up to one year; supports government approved program or contract)

Foreign Visitsto DoD or Defense Contractor

Embassy or Defense Attache of foreign visitor submits Request for Visit Authorization (RVA) to appropriate Defense Visit Office (DVO)

Every DoD organization has a designated DVO

Defense Intelligence Agency (DIA) is the DVO for OSD, Joint Staff, Defense Agencies and contractors

Defense Visit Offices

Defense Intelligence Agency (DIA)Defense Foreign Liaison (PO-FL)

Department of the Air Force Disclosure Information Division (SAF/IAPD)

Department of the Navy Navy International Programs Office (NIPO-10)

Department of the ArmyDeputy Chief of Staff for Intelligence

Directorate of International Relations (DAMI-IR)

CognizantForeign

DisclosureOffice

DoD/Commercial

VisitLocation

Visit Request Process

Approval/DenialNon-Sponsor

Approval/DenialNon-Sponsor RecommendationRecommendation

ForeignEmbassy

Or Military Attaché

VisitRequest

VisitRequest

Other Visit Request Processes

Hosted Visits - DoD invites foreign national; worked through appropriate DVO

Emergency Visits - legitimate purposes only; no amendments

Amendments - change to LATER date and / or list of visitors; NO change to purpose or information

Assignment of Foreign Nationals

Foreign Liaison Officers (FLO) - represent their governments

Personnel Exchange Officers (PEP) - work for US supervisor, but not fully integrated

Can’t be both

Review

Technology Transfer & Export Controls (Introduction)

Controlled Unclassified Information

Foreign Disclosure and the National Disclosure Policy (NDP)

Export Approval/License Process

International Visits