1. 04 June 2014 1 0312 Technology Transfer & Export Controls

2. 04 June 2014 2 0312 Agenda  Technology Transfer & Export Controls Authority and Policy  Process and Decision to Disclose and Transfer  Compliance with and execution of Disclosure Policy  Licensing Authorities  Exports Approval / License Process

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4. 04 June 2014 4 0312 Protecting US Technology Michelle Van Cleave Former National Counterintelligence Executive “Virtually every technology that is on the U.S. control technology list has been targeted: sensors and optics, and biological and chemical processes… having inherent military application.” “I think we’re a real candy store for the Chinese and for others in terms of technology and commercial products and other proprietary information and so we will always be the principal target for them.” Interview with 60 Minutes (CBS) 28 February 2010

5. 04 June 2014 5 0312 Reasons for Technology Transfer/Export Control  National Security  Foreign Policy  Weapons of Mass Destruction  Terrorism

6. 04 June 2014 6 0312 International Program Criteria  Lawful and authorized  Government or commercial effort with contributing or receiving foreign participant  Information or technology is transferred from one country to another

7. 04 June 2014 7 0312 DoD Policy on Technology  Valuable national security resources*  Protected and invested in pursuit of national security and foreign policy objectives  International trade is key to strong U.S. industrial base  Export controls in way to minimally interfere with legitimate trade *DoDI 2040.02DoDI 2040.02 International Transfers of Technology, Articles, and Services

8. 04 June 2014 8 0312 Balancing Demands U.S. strategic objectives WRT to the partner? Partner’s capability requirements? Capabilities requested by the partner? Urgency? Higher-priority need for the capabilities? Partner’s capacity to absorb, effectively employ capabilities? Strategic benefits to U.S.? Sensitivity of the technology? Partner’s ability to capitalize on the technology? Partner’s capability and willingness to protect sensitive U.S. technology? Risks to the U.S. or its allies/partners if the technology is compromised? Seriousness of these risks? Possibility of satisfactory risk mitigation? Provide required capabilities quickly to allies and partners Protect the “crown jewels” of U.S. Defense technology How can the USG/DOD best balance these two demands? What is DoD’s “decision trade space”? ?? ?

9. 04 June 2014 9 0312 Access + Protection = Export and Disclosure Authorization Decisions Fundamental Considerations 1. Access Sharing of U.S. defense articles or information is in the best interests of the U.S. 2. Protection Maintain security and provide security substantially the same as that provided by the U.S.

10. 04 June 2014 10 0312 Legal and Policy Basis for Security in International Programs Arms Export Control Act (AECA) Executive Order 13526 National Security Decision Memorandum (NSDM) 119 Three Documents

11. 04 June 2014 11 0312 Arms Export Control Act (AECA)  Forms the legal basis for the security requirements of most DoD International Programs  Governs export and import of defense articles and services  Covers commercial and government programs  Section 38 is implemented by the ITAR which contains US Munitions List (USML)  (Statutory authority of President delegated to State Dept)

12. 04 June 2014 12 0312 Directorate of Defense Trade Controls http://www.pmddtc.state.gov/regulations_laws/itar_consolidated.html http://www.pmddtc.state.gov/regulations_laws/itar_consolidated.html

13. 04 June 2014 13 0312 Executive Order 13526  Establishes the National Security Information Program  Uniform system for…  Classifying  Safeguarding  Declassifying  Protection of Foreign Information  DoD Manual 5200.01 (Info Security Program – 3 Volumes) DoD Manual 5200.01

14. 04 June 2014 14 0312 National Security Decision Memorandum (NSDM) 119  Establishes the NDP Committee (NDPC)  Assigns implementation of NDP to Secretaries of State and Defense  Governs decisions on foreign disclosure of Classified Military Information (CMI)  Requires annual report to National Security Council (NSC)

15. 04 June 2014 15 0312 Security Conditions 1. Will NOT transfer title or possession without U.S. consent 2. Will NOT use or permit use for other purposes without U.S. consent 3. Will maintain security and provide substantially the same degree of protection

16. 04 June 2014 16 0312 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. 04 June 2014 17 0312 Technology Transfer Decision Basis  2 Fundamental security Considerations  3 Documents forming the legal and policy basis  3 Conditions that must be agreed upon by foreign recipients  2 Activities associated with International Programs

18. 04 June 2014 18 0312 Agenda  Technology Transfer & Export Controls Authority and Policy  Process and Decision to Disclose and Transfer  Compliance with and execution of Disclosure Policy  Licensing Authorities  Exports Approval / License Process

19. 04 June 2014 19 0312 Technology Security & Foreign Disclosure – ‘Pipes Chart’ perspective DoD Lead: Various Various documented process MILDEP- specific various DoD Lead: Various Various documented process MILDEP- specific various

20. 04 June 2014 20 0312 National Disclosure Policy Committee (NDPC) (DoD Processes discussed on GB pages 7-14 to 7-15) Department of Energy Director, National Intelligence Department of Energy Director, National Intelligence Other Departments and Agencies Other Departments and Agencies National Security Council PRESIDENT

21. 04 June 2014 21 0312 NDPC Disclosure Criteria NDPC Disclosure Criteria  Supports U.S. foreign policy  Benefit to the USG (POL/MIL/National Security)  Not jeopardize U.S. Military security (damage assessment)  Recipient’s capability and intent to protect  Release limited to that necessary to satisfy U.S. goals  Implemented by DoDD 5230.11DoDD 5230.11  (DISCLOSURE OF CLASSIFIED MILITARY INFORMATION TO FOREIGN GOVERNMENTS AND INTERNATIONAL ORGANIZATIONS)

22. 04 June 2014 22 0312 Security Survey  Purpose - Enables the NDPC to determine by physical on-site review, whether a particular foreign government has the capability to protect substantially the same as the United States  Evaluates foreign government and industry  Personnel security  Information control  Physical security  U.S. Embassy views also obtained  May result in negotiated security agreement

23. 04 June 2014 23 0312 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

24. 04 June 2014 24 0312 Agenda  Technology Transfer & Export Controls Authority and Policy  Process and Decision to Disclose and Transfer  Compliance with and execution of Disclosure Policy  Licensing Authorities  Exports Approval / License Process

25. 04 June 2014 25 0312 Disclosure Authority  Is an official, specifically designated in writing, who may disclose or deny CMI per NDP, provided:  The information is originated by the official’s department or agency  The official is responsible for the information to be disclosed  Only those officials with such specific authority may make foreign disclosure determinations  DODD 5230.11 is the main reference

26. 04 June 2014 26 0312 Principal Disclosure Authorities  Office of the Secretary of Defense  Under Secretary of Defense for Policy (USD(P))  Under Secretary of Defense for Acquisition, Technology & Logistics (USD (AT&L))  Under Secretary of Defense for Intelligence (USD(I))  Chief of Staff, Defense Intelligence Agency  Director, Missile Defense Agency  Secretary of the Joint Staff  Military Services  Army Deputy Chief of Staff for Intelligence  Assistant Secretary of the Navy (Research, Development & Acquisition)  Deputy Under Secretary of the Air Force (International Affairs)

27. 04 June 2014 27 0312 N N AVOID Dealing with Foreign Persons DoDD 2100.3 F F A A L L S S EE I M M P P R R E E S S S S I I O O S S

28. 04 June 2014 28 0312 Agenda  Technology Transfer & Export Controls Authority and Policy  Process and Decision to Disclose and Transfer  Compliance with and execution of Disclosure Policy  Licensing Authorities  Exports Approval / License Process

29. 04 June 2014 29 0312 Licensing Authorities and DoD’s Role State (Munitions) Arms Export Control Act (AECA) ITAR / USML Commerce (Civil / Dual-Use) Export Administration Act (EAA) EAR / CCL Defense Not a licensing or approval authority Provides recommendations (via DTSA) to DOS & DOC

30. 04 June 2014 30 0312 Assistant Secretary, Bureau of Political-Military Affairs State Department Bureau of Political-Military Affairs (PM) (Greenbook page 3-6) Regional Security and Arms Transfers (RSAT) Director, Defense Trade Controls DDTC

31. 04 June 2014 31 0312 Directorate of Defense Trade Controls http://www.pmddtc.state.gov/regulations_laws/itar_consolidated.html http://www.pmddtc.state.gov/regulations_laws/itar_consolidated.html

32. 04 June 2014 32 0312 Licensing Authorities and DoD’s Role State (Munitions) Arms Export Control Act (AECA) ITAR / USML Commerce (Civil / Dual-Use & some Munitions) Export Administration Act (EAA) EAR / CCL Defense Not a licensing or approval authority Provides recommendations (via DTSA) to DOS & DOC

33. 04 June 2014 33 0312 Department of Defense MILDEPs Under SECDEF (Policy) Under SECDEF (Policy) Defense Security Cooperation Agency Joint Staff Secretary of Defense –––––––––––––––––––––––– Deputy Secretary of Defense Secretary of Defense –––––––––––––––––––––––– Deputy Secretary of Defense Dir, International Cooperation Under SECDEF (Acquisition, Technology, & Logistics) Under SECDEF (Acquisition, Technology, & Logistics) Under SECDEF (Intelligence) Under SECDEF (Intelligence) Defense Security Service (DSS) DTSA Chair, NDPC DTSA Chair, NDPC

34. 04 June 2014 34 0312 Defense Technology Security Administration (DTSA)  DoD entry point for export requests:  State Department (DDTC)  Commerce Department (BIS)  State and Commerce send over about 30,000 proposed license to DTSA for review and comment a year  Approximately 80% of the time DTSA develops DoD response  About 20% of the time, ask Services for input

35. 04 June 2014 35 0312 Agenda  Technology Transfer & Export Controls Authority and Policy  Process and Decision to Disclose and Transfer  Compliance with and execution of Disclosure Policy  Licensing Authorities  Exports Approval / License Process

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37. 04 June 2014 37 0312 What Is an Export?  Sending/taking defense articles and/or data out of U.S. in any way  Transferring (in U.S. or abroad) registration, control, or ownership to a foreign person of any material or data covered by U.S. Munitions List  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)

38. 04 June 2014 38 0312 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  design  development  production  manufacture  assembly  operation  repair  testing  maintenance  modification

39. 04 June 2014 39 0312 Export Forms and Licenses (ITAR Part 123 and 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-85 Permanent/Temporary Export/Import of classified articles/technical data  DSP-83 Non-transfer and Use Certificate  DS-2032Registration Form  DSP-94 FMS shipments (FMS)

40. 04 June 2014 40 0312 Agreements Parts 120.21, 120.22, 120.23  Technical Assistance Agreement (TAA): An agreement between a U.S. person & a foreign person for defense services or recurring disclosure of tech data as opposed to agreement granting a right or license to manufacture.  Manufacturing License Agreement (MLA): An agreement or contract whereby a U.S. person grants a foreign person an authorization to manufacture defense articles abroad.  Distribution License Agreement (DLA): An agreement to establish a warehouse or distribution point abroad for defense articles exported from the U.S. for subsequent distribution to entities in an approved sales territory

41. 04 June 2014 41 0312 Foreign Military Sales (FMS) License Exemption (Part 126.6)  Technical data sold, leased or loaned under DoD FMS program:  Under a Letter of Offer and Acceptance (LOA)  And accompanied by a valid DSP-94 form  And Exported from the US  On a military aircraft or naval vessel of that government  Or by a freight forwarder or agent of that gov’t  Or via the Defense Transportation Service (DTS)

42. 04 June 2014 42 0312 References and support for Tech Transfer and Export Controls Questions  International Traffic in Arms Regulation (ITAR) International Traffic in Arms Regulation (ITAR)  SAMM Chapter 3 (Technology Transfer and Disclosure) SAMM Chapter 3 (Technology Transfer and Disclosure)  DISAM ‘Greenbook’ Chapter 7 (Technology Transfer, Export Controls, and International Programs Security) DISAM ‘Greenbook’ Chapter 7 (Technology Transfer, Export Controls, and International Programs Security)

43. 04 June 2014 43 0312 Technology Transfer & Export Controls Questions??

44. 04 June 2014 44 0312