DoD Export-Controlled Personal Property and Trade Security - - PowerPoint PPT Presentation

IND 105 LESSON 13

DoD Export-Controlled Personal Property and Trade Security Controls

DoD Export-Controlled Personal Property and Trade Security Controls

TLO 13- Given the need to transfer DoD export-controlled personal property to parties within or outside of the United States, recognize the statutes required to implement Trade Security Controls (TSC). ELOs:

• 1. Recognize the regulations required to implement Trade Security

Controls policy for export-controlled DoD personal property to be transferred outside of DoD control.

• 2. Identify items covered by the International Traffic in Arms Regulation

(ITAR).

• 3. Identify items covered by the Export Administration Regulations (EAR).

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TSC Laws and Regulations

• 1. DoD Instruction 2030.08, “Implementation of Trade Security Controls

(TSCs) for Transfers of DoD Personal Property to Parties Outside of DoD Control”

• 2. Arms Export Control Act (AECA)
• 3. International Traffic in Arms (ITAR) (22 CFR)
• 4. Export Administration Regulations (EAR) (15 CFR)
• 5. Department of Defense Manual, Number 4160.28, Vol. 3, June 7,

2011(Implementing Change 2 August 31, 2018)

• 6. DODI 2040.02 International Transfers of Technology, Articles, and

Services

• 7. DoDM 4160.21 DOD Demilitarization and Trade Security Control Manual

(4 Volumes).

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TSC Laws and Regulations

ELO3

Government Policy

• DFARS 225.79
• DFARS PGI 225.79—EXPORT CONTROL
• DFARS 245.604 Disposal of Surplus Property
• PGI 245.6 Reporting, Reutilization, and Disposal

Contractor Clauses

• FAR 52.245-1(j)(8) Disposition Instructions
• DFARS 252.225-7048 Export Controlled Items

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TSC

ELO 1

Purpose:

Assigns responsibilities for the implementation of DoD TSC measures for transfers of DoD personal property to parties outside DoD control. Establishes TSC measures necessary to prevent unauthorized transfers of DoD export-controlled personal property to individual, entities, or countries.

5 DoDI 2030.08

TSC

ELO 1

Applicability: DoD Components DoD export-controlled personal property

• throughout the life cycle of the property, from initial acquisition and

contracting phases (including pre-solicitations) through ultimate disposition

• to be transferred outside DoD control regardless of the authority upon

which it is transferred, including exchange or sale and all other forms

• f transfer.
• controlled by contractors.

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TSC

ELO 1

• POLICY. It is DoD policy that:

a. All transfers of DoD export-controlled personal property, within or outside the United States, will be conducted pursuant to: (1) Section 2778 of Title 22, United States Code (U.S.C.), also known as the “Arms Export Control Act (AECA)” (Reference (g)), as implemented in parts 120 through 130 of Title 22, Code of Federal Regulations (CFR), also known and referred to in this instruction as the “International Traffic in Arms Regulations (ITAR)” (Reference (h)). (2) Chapter 35 of Title 50, U.S.C. (Reference (i)), as implemented in parts 730 through 774 of Title 15, CFR, also known and referred to in this instruction as the “Export Administration Regulations (EAR)” (Reference (j)). (4) Parts 500 through 598 of Title 31, CFR, also known as the “Office of Foreign Assets Control Regulations” (Reference (k)).

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TSC

ELO 1

• POLICY. It is DoD policy that:
• b. DoD export-controlled personal property will not be transferred to the

control or possession of a foreign person or ineligible transferee unless authorized by statute, under regulations issued by the Secretary of State, the Secretary of Commerce, or the Secretary of the Treasury or other authority.

• c. DoD programs for the transfer of DoD export-controlled personal

property will be administered to ensure that transfers comply with export control regulations (ITAR EAR and Reference (k)), DoD DEMIL instructions (References (c) through (e)), and DEMIL regulations (part 101-42.1102 of Reference (l)).

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TSC

ELO 1

• POLICY. It is DoD policy that:
• d. DoD Components must apply appropriate TSC measures, including

those required at Enclosure 3, to prevent unauthorized exports or transfers of DoD export-controlled personal property. These measures must be applied throughout the entire lifecycle of DoD exportcontrolled personal property, which includes all acquisition phases (including pre- solicitation activities), sustainment, and ultimate disposal.

9 DoDI 2030.08

TSC

ELO 1

• POLICY. It is DoD policy that:
• e. TSC measures will be implemented, as appropriate, in coordination

with programs established by the Under Secretary of Defense for Acquisition, Technology, and Logistics (USD(AT&L)); the Defense Security Cooperation Agency (DSCA); the Defense Technology Security Administration (DTSA); the Directorate of Defense Trade Controls (DDTC) at the Department of State (DOS); the U.S. Immigration and Customs Enforcement at the Department of Homeland Security (DHS); the Bureau of Industry and Security at the Department of Commerce (DOC); and the Office of Foreign Assets Control at the U.S. Department

• f the Treasury (USTD).

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TSC

ELO 1

• POLICY. It is DoD policy that:
• f. Transfers of DoD personal property at locations outside of the United

States must also comply with applicable foreign laws, regulations, and international agreements.

• g. All DoD activities and personnel will report known or suspected

violations of U.S. export laws and regulations for investigation in accordance with DoDD 5106.01 (Reference (l)), DoDI 5505.2 (Reference (n)), the ITAR and EAR. Failure to report such violations to the appropriate authorities may result in criminal or civil penalties.

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TSC

ELO 1

ENCLOSURE 2 RESPONSIBILITES

• 5. ASSISTANT SECRETARY OF DEFENSE FOR LOGISTICS AND

MATERIEL READINESS (ASD(L&MR)). Under the authority, direction, and control of the USD(AT&L), the ASD(L&MR):

• a. Provides management oversight of the DoD TSC

Program.

• b. Issues supplemental guidance, as appropriate, for the

DoD implementation of TSC measures and policy for DoD personal property.

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TSC

ELO 1

ENCLOSURE 3, PROCEDURES

• 2. REQUIRED GENERAL MEASURES FOR DoD COMPONENTS
• a. Assign proper DEMIL codes for managed inventory items, at the

inception of the acquisition cycle, in accordance with Volume 2 of Reference (d).

• b. Limit access to DoD export-controlled personal property.
• c. Prevent unauthorized visual or oral disclosure of DoD export-

controlled personal property to foreign persons, in the United States or abroad, when such disclosure would constitute an export in accordance with the EAR or the ITAR.

13 DoDI 2030.08

TSC

ELO 1

ENCLOSURE 3, PROCEDURES

• 2. REQUIRED GENERAL MEASURES FOR DoD COMPONENTS cont.
• d. Properly mark and protect unclassified technical data with distribution

statements, and disseminate in accordance with DoDI 5230.24 (Reference (r)), DoDD 5230.25 (Reference (s)), DoDI 5230.29 (Reference (t)), Volume 4 of DoDM 5200.01 (Reference (u)), and DoDM 5200.45 (Reference (v)).

• e. Properly DEMIL or mutilate DoD U. S. Munitions List (USML) and

Commerce Control List (CCL) personal property as required by Reference (d), before release from DoD control, unless it is being transferred pursuant to an authorized exception.

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TSC

ELO 1

• 3. REQUIRED MEASURES FOR DOD COMPONENTS WHEN

TRANSFERRING DOD USML OR CCL PERSONAL PROPERTY

• a. Perform TSC assessments before transferring DoD USML or CCL

personal property.

15 DoDI 2030.08

Arms Export Control Act (AECA) of 1976 ELO 3

• Provides the authority to control the export of defense articles and

services, and charges the President to exercise this authority.

• Executive Order 11958, as amended, delegated this statutory authority to

the Secretary of State.

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ITAR

ELO 2

What is the ITAR?

A United States regulation which restricts and controls the export of defense and military related technologies to safeguard U.S. national security and further U.S. foreign policy objectives. Defense-related articles and services on the UMLS are covered by the regulations, which implement the provisions of the Arms Export Control Act (AECA), and are described in Title 22 (Foreign Relations), Chapter I (Department of State), Subchapter M of the Code of Federal Regulations.

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ITAR

ELO 2

Purpose To control the export and import of defense articles and defense services.

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Defense Article means any item or technical data that is specifically designed, developed, configured, adapted, or modified for a military, missile, satellite, or other controlled use listed on the USML. Defense articles also include things such as models, mock-ups, or other items, i.e. technical data related to items. Note that sometimes defense articles include items not listed on the USML.

ITAR

ELO 2

Who Governs the ITAR? – U.S. Department of State, Directorate of Defense Trade Controls

• The Directorate of Defense Trade Controls (DDTC), U.S. Department of

State is charged with controlling the export and temporary import of defense articles and defense services covered by the United States Munitions List (USML)

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ITAR

ELO 2

• Department of State publishes the U.S. Munitions List (USML)
• USML is divided into 21 Categories
• Export of items on the USML are controlled by the Department of State

and require a valid Export License

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ITAR

ELO 2

International Traffic In Arms Regulation (ITAR) 22 CFR

• Significant Military Equipment (SME)
• Special export controls are warranted because of their capacity for

substantial military utility or capability.

• Significant Military Equipment includes:

– Items which are preceded by an asterisk* (ex: military aircraft, helicopters, drones, engines (except reciprocating engines), etc. – All articles classified in the interests of national security Note: The August 2018 publication of DoDM 4160.28-V2 now designates significant military equipment (SME) with a black diamond (♦).

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ITAR

ELO 2

Applicability:

• 1. ITAR contains a list of products called the U.S. Munitions List (USML). If a

product is on the USML, it is subject to ITAR controls.

• 2. ITAR controls apply not just to the physical products but also to software

and technical data related to the device.

• Technical data refers to drawings, algorithms, manuals, and information on the design

manuals, any information on the design, manufacture or use of the item.

• These items are subject to the same controls under ITAR as the physical products and

their components.

• 3. If an item is on the USML, parts and components that are specially

designed for that item are also on the list and subject to ITAR.

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VIDEO

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ITAR

ELO 2

Risks of Non-Compliance

• Public Security
• National Security
• Foreign Allies
• Up to 20 years of in prison for violations

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EAR

ELO 3

Export Administration Regulations (EAR) (15CFR)

• Controlled by Department of Commerce
• Commerce Controlled List (CCL) items

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EAR

ELO 3

• The Bureau of Industry and Security (BIS), U.S. Department of Commerce

administers the EAR.

• The EAR contains the Commerce Control List (CCL).
• The CCL is the comprehensive list of all items controlled by the

Department of Commerce.

• These items are called Commerce Control List Items (CCLI)

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EAR

ELO 3

• CCLI are normally referred to as “Dual Use Items” or items that have both

commercial and military or proliferation applications (ref. part 772 of title 15, Code of Federal Regulations).

• Dual-Use/CCLI Examples:

– Computers, digital ruggedized – Gun rifling machines – Infrared viewers – Laser radar systems – Underwater breathing apparatus, self-contained – Aluminum alloys

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ITAR vs. EAR

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ITAR

Department of State Designed specially for military application or contains significant military

• r intelligence applicability.

USML

Part 121 of title 22 CFR

EAR

Department of Commerce has responsibility for items with military application which have both military and commercial utility

CCL

Part 774 of title 15 CFR *The EAR now includes some strictly military items and spacecraft items.

TRADE SECURITY CONTROLS

TLO 13- Given the need to transfer DoD export-controlled personal property to parties within or outside of the United States, recognize the statutes required to implement Trade Security Controls (TSC). ELOs:

• 1. Recognize the regulations required to implement Trade Security

Controls policy for export-controlled DoD personal property to be transferred outside of DoD control.

• 2. Identify items covered by the International Traffic in Arms Regulation

(ITAR).

• 3. Identify items covered by the Export Administration Regulations (EAR).

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