Export Control What’s It All About? April 8, 2008 Ms. Bonnie Klein

1. Export Control What’s It All About? April 8, 2008 Ms. Bonnie Klein

2. Export Control Mr. Charles Meixner Foreign Affairs Specialist Office of the Deputy Under Secretary Air Force International Affairs

3. Export Control What’s It All About? Mr Chuck Meixner Secretary of the Air Force (International Affairs) Foreign Disclosure and Technology Transfer Division (703) 588-8865 charles.meixner@pentagon.af.mil April 2008 Integrity - Service - Excellence 3

4. What is the history of export control? • Trading with the Enemy Act of 1917 • Neutrality Act of 1935 • National Defense Act of 1940 • No aid or comfort to enemies • Export Control Act of 1949 • Short supply, foreign policy, national security • Arms Export Control Act of 1968 • Export Administration Act of 1969 • Gradual shift of policy toward less restrictive controls • Balance national security and economic concerns Integrity - Service - Excellence

5. What are the laws and regulations? • Arms Export Control Act (22 USC 2778) • International Trade in Arms Regulation (ITAR) • Export Administration Act (50 USC 2401) • Export Administration Regulation (EAR) • DOD Directive 2040.2, International Transfers of Technology, Goods, Services and Munitions • DOD Directive 5230.25, Withholding of Unclassified Data from Public Disclosure Integrity - Service - Excellence

6. Summary Integrity - Service - Excellence

7. International Traffic in Arms Regulation • Department of State • Bars the export of items, technology, and technical information found on the US Munitions List (USML) • Military-use goods • Defense Article and Technical Data • Significant Military Equipment • Major Defense Equipment • Defense Service • Purpose: National Security Integrity - Service - Excellence

8. Export Administration Regulation • Department of Commerce • Bars the export of items, technology, and technical information found on the Commerce Control List • Dual-use items. • Legitimate civilian and military use • Purpose: WMD Proliferation, Missile Technology Control Regime, National Security, Regional Stability, Crime Control, Anti-terrorism, Instruments of Torture, High Performance Computers, Communications Intercepting Devices Integrity - Service - Excellence

9. Why export controls? • Support U.S. foreign policy and national security objectives: • Facilitate the sharing of military technology with allies and other nations whose interests coincide with those of the United States • Deny military technology to any country that could be detrimental to U.S. security interests Integrity - Service - Excellence

10. What is an export? Sending or taking defense data or article out of the US in any manner • Transferring registration, control or ownership of an item on the USML • Oral, visual or documentary disclosure of a defense article inside or outside of the US to a foreign national, embassy, representative, or subdivision of a foreign government • Performing a defense service for the benefit of a foreign person Integrity - Service - Excellence

11. What is technical data? • Information required for the design, develop-ment, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of a defense article • May be in the form of blueprints, drawings, photo-graphs, pans, instructions, briefings, documents, or electronic media • Invention secrecy order (like SBIR) • Software system functional design, logic flow, algorithms, application programming, operating systems, or systems support Integrity - Service - Excellence

12. What is not technical data? • Basic marketing information on function, purpose, or general system descriptions • General scientific, mathematical or engineering principles commonly taught in schools, colleges, and universities • Information in the public domain (bookstores, newstands, libraries, patent offices, conferences, trade shows, seminars) • Information released by Public Affairs and properly marked with DoD Distribution A Integrity - Service - Excellence

13. How about fundamental research? Definition: Basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community - ITAR 120.11(8) Excluded if: Researchers accept restrictions on publication The research is funded by the U.S. Government and specific access and dissemination controls protecting the information are applicable Integrity - Service - Excellence

14. How about NSDD 189? • National Security Decision Directive 189 • Definition of “Basic Research” - ITAR §125.4(c)(3) • "Basic Research" means a systemic study directed toward greater knowledge or understanding of the fundamental aspects of phenomena and observable facts without specific applications towards processes or products in mind. It does not include “applied research.” Integrity - Service - Excellence

15. How do I make a decision? Is the item a defense article on the US Munition List (USML)? Is the item a defense article on the Commerce Control List (CCL)? Does the item support the design, development, production, stockpiling or use of a nuclear explosive device, chemical or biological weapons, or missiles? NO NO YES YES YES NO Not Export Controlled Export Controlled Is the item non-commercial software software source code or object code? YES YES NO YES YES Was the the item provided under a Non-Disclosure Agreement or a Confidentiality Agreement by an external sponsor, vendor, collaborator or other third party? Is the item protected by a patent, intellectual property rights or is it marked as proprietary information? NO NO Integrity - Service - Excellence

16. How do I check the CCL? • Go the the CCL • Supplement No. 1 to Part 774 of the EAR • Locate the appropriate Export Control Classification Number (ECCN) • Alpha-numeric code such as “3A001” • The CCL is divided into ten broad categories, each subdivided into five product groups http://www.access.gpo.gov/bis/ear/ear_data.html#ccl Integrity - Service - Excellence

17. How do I check the USML? • Go the the ITAR • Part 121 • Locate the appropriate Category • The USML is divided into twenty-one broad categories, each subdivided into various product groups • Intended use of the article or service is not relevant in determining whether it is subject to control http://pmddtc.state.gov/official_itar_and_amendments.htm Integrity - Service - Excellence

18. Who has marking responsibilities? • Originator marks newly created content before distribution • Originator marks unmarked documents when found • Originator approves distribution statement changes • Originator approves the release of documents beyond the restrictions reflected in the distribution statement Integrity - Service - Excellence

19. What does the distribution statement do? • Tells you the: • Authorized audience • Reason for restriction • Identity of the originating DoD Office • Date of determination • Distribution Statement X: Distribution authorized to U.S. Government agencies and private individuals or enterprises eligible to obtain export-controlled technical data in accordance with DoDD 5230.25 (date of determination). Controlling office is (insert DoD office). Integrity - Service - Excellence

20. What about missing markings? • Mark with Distribution F until the originator assigns the correct marking • Retains the original distribution statement when declassified • Declassified with no distribution statement - mark with Distribution F Export controlled information is normally marked Distribution X, unless it is also a critical technology Integrity - Service - Excellence

21. Is there a better marking? WARNING—This document contains technical data whose export is restricted by the Arms Export Control Act (Title 22, U.S.C. 2751 et seq.) or the Export Administration Act of 1979, as amended, Title 50, U.S.C., App. 2401, et seq. Violation of these export-control laws is subject to severe criminal penalties. Dissemination of this document is controlled under DoD Directive 5230.25. Or . . . WARNING – EXPORT CONTROLLED Integrity - Service - Excellence

22. What are the penalties for violations? • Personal responsibility for US citizens • Disciplinary action for government employees • Legal fees • Criminal sanctions • $1,000,000 • Ten years in prison Integrity - Service - Excellence

23. QUESTIONS Integrity - Service - Excellence

24. How about applied research? • "Applied research" means a systemic study to gain knowledge or understanding necessary to determine the means by which a recognized and specific need may be met. It is a systemic application of knowledge toward the production of useful materials, devices, and systems or methods, including design, development, and improvement of prototypes and new processes to meet specific requirements. • Applied research may be controlled by the ITAR -- §125.4(c)(3) Integrity - Service - Excellence

25. Point of Contact Mr. Charles Meixner Office of the Deputy Under Secretary Air Force International Affairs (SAF/IAPD) 703-588-8865 charles.meixner@pentagon.af.mil http://www.safgc.hq.af.mil/organizations/gci/index.asp