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PERU July 2009

PERU July 2009. Technology Transfer and Export Controls. SAM-I. Overview. Technology Transfer & Export Controls (Introduction) Controlled Unclassified Information Foreign Disclosure and the National Disclosure Policy (NDP) Export Approval/License Process International Visits.

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PERU July 2009

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  1. PERU July 2009

  2. TechnologyTransfer and Export Controls SAM-I

  3. Overview • Technology Transfer & Export Controls (Introduction) • Controlled Unclassified Information • Foreign Disclosure and the National Disclosure Policy (NDP) • Export Approval/License Process • International Visits

  4. International Programs Security • Total effort that safeguards information/technology identified as requiring control • Generated by, provided to, or transferred in an international program

  5. 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)

  6. Key Players in Tech Transfer and International Programs Security Arms Export Control Act (AECA) Export Administration Act (EAA) Department of State Department of Defense Department of Commerce Director of Defense Trade Controls (DDTC) Bureau of Industry and Security (BIS) ITAR Munitions List (USML) EAR Commerce Control List (CCL) Undersecretary (Acquisition Technology and Logistics) Undersecretary (Policy) Undersecretary (Intelligence)

  7. 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

  8. 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 What is Technical Data*? • operation • repair • testing • maintenance • modification • design • development • production • manufacture • assembly * ITAR, 22 CFR § 120.10

  9. Export Decision Criteria • Comprehend the 2 fundamental security considerations that influence participation in International Programs (IPs) • Identify the 3documents 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

  10. Fundamental Considerations • Access Sharing of U.S. defense articles or information is in the best interests of the U.S. • Protection Maintain security and provide security substantially the same as that provided by the U.S. Access + Protection = Export and Disclosure Authorization Decisions 2 10

  11. Legal and Policy Basis • Arms Export Control Act (AECA) • Executive Order (E.O.) 12958 • National Security Decision Memorandum (NSDM) 119 3 11

  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

  13. Legal and Policy Basis AECA Security-related conditions • Not transfer title or possession without U.S. consent • Not use or permit use for other purposes without U.S. consent • Maintain security and provide substantially the same degree of protection 3 13

  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

  15. Legal and Policy Basis E.O. 12958 Classified information cannot be transferred to a third party without the consent of the originator THIRD PARTY RULE 15

  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

  17. Government-to-Government Principle Governs TWO activities related to International Programs: • Disclosure/Export authorizations decisions = government-to-government decision • Transfers of classified information and material = government-to-government transfer 2 17

  18. 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 What Is an Export*? * ITAR, 22 CFR § 120.17

  19. Dealing with Foreign PersonsDoDD 2100.3 AVOID N S O I S F A S L E R S P E M I

  20. 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)

  21. 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

  22. 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

  23. 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

  24. Classified Military Information (CMI) • CMI is information • Requiring protection in interest of national security • Under control or jurisdiction of DoD or its departments/agencies

  25. 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)

  26. National Disclosure Policy Committee (NDPC) President National Security Council Secretary Secretary of of Defense State Department of Energy Director, Central Intelligence Other Departments and Agencies General Members: OSD Chairs Air Force State Dep Army JCS Navy Special Members: USD (P) DIA USD (AT&L) MDA USD (I) NGA NSA Asst Sec Def (NCB) Asst Sec Def (NII) NDPC

  27. Governs decisions on disclosure of CMI Five disclosure criteria: Supports U.S. foreign policy Not jeopardize U.S. Military security (damage assessment) Recipient’s capability and intent to protect Benefit to the USG (POL/MIL/National Security) Release limited to that necessary to satisfy U.S. goals Basic National Disclosure Policy

  28. 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

  29. 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

  30. The U.S. Munitions List CATEGORY I Firearms, Close Assault Weapons and Combat Shotguns II Guns and Armament III Ammunition/Ordnance IV Launch vehicles, Guided Missiles, Ballistic Missiles, Rockets, Torpedoes, Bombs and Mines V Explosives and Energetic Materials, Propellants, Incendiary Agents and Their Constituents VI Vessels of war and Special Naval Equipment VII Tanks and Military Vehicles VIII Aircraft and Associated Equipment . . XX Submersible Vessels, Oceanographic and Associated Equipment XXI Miscellaneous Articles

  31. Export Forms and Applications for Licenses(Part 123 & 126) • DSP-5 Permanent 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

  32. 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

  33. Purposes of Visit Requests • Facilitate administration (scheduling) • Provide security assurance(if classified - clearance, Need To Know, government sponsorship) • Authorize disclosure / export

  34. 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)

  35. 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

  36. Visit Request Process 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 Army Deputy Chief of Staff for Intelligence Directorate of International Relations (DAMI-IR) Visit Request Foreign Embassy Or Military Attaché Cognizant Foreign Disclosure Office DoD/ Commercial Visit Location Approval/Denial Non-Sponsor Recommendation

  37. 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

  38. 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

  39. Review • Technology Transfer & Export Controls (Introduction) • Controlled Unclassified Information • Foreign Disclosure and the National Disclosure Policy (NDP) • Export Approval/License Process • International Visits

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