Transcript DoD Export Review Process & License Preparation Guidance

UNCLASSIFIED
Defense Technology Security Administration
DoD Export Review Process and
License Preparation Guidance
Rizwan “Riz” Ramakdawala
France 2009
UNCLASSIFIED
DTSA Mission
POLICY
To promote United States National Security
interests by protecting critical technology
while building partnership capacity
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DTSA Strategic Goals
POLICY
• Preserve the U.S. defense edge by preventing the
proliferation and diversion of technology that could
prove detrimental to U.S. national security
• Engage U.S. allies and partners to increase
interoperability and protect critical technology
• Facilitate the health of the U.S. industrial base
• Align and utilize resources to support DTSA’s
mission
• Empower people and make DTSA a great place to
work
3
Defense Technology Security Administration
POLICY
DUSD for Technology Security Policy & Nat’l Disclosure Policy, Acting
Director, Defense Technology Security Administration (DTSA), Acting
Deputy Director
DTSA
Military
Assistant
Licensing
Directorate
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License Reviews
Commodity
Jurisdictions
Voluntary &
Directed
Disclosures
Regulations
Technology
Directorate
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Aeronautical
Electronics
Information &
Communications
Sensors & Lasers
Missiles & Space
NBC/Land/Naval/
Materials/Machine
Tools
Space Monitoring
Policy
Directorate
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Regional Policy
Negotiations/
Liason
Capabilities/
Systems
Assessments/
CFIUS
International
Security
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As of 27 March 2009
Secretariat NDPC
FG Disclosure
Policy
Security Surveys
General Security
Agmt
NATO Security
Policy
FN Pers Assgn
Policy
Monitor Int’l Sec
Prgm
Int’l Sec Tng
Oversight
Space
Directorate
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License Monitoring
Tech Exchanges
Tech Data Reviews
Management
Directorate
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Personnel
Security
Logistics
Comptroller
Info Technology
Info Assurance
Department of Defense Role in Export Controls
POLICY
Commerce
State
Export Administration Act
(Dual-Use)
Arms Export Control Act
(Munitions)
Defense
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Department of Defense Role in Export Controls
POLICY
• Defense perspective to the process:
– National security review of export license applications
– Developing multi-lateral control lists
• Unique knowledge of systems and capabilities
– Operators and designers of systems
• National security dimension to strategic trade
– Trade, foreign affairs, defense all part of the equation
• Strategic element to defense cost and awareness
– Expensive countermeasures
– Knowledge of extant technologies
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DoD Technology Transfer &
Export Licensing Community
POLICY
U.S. Military Services:
• U.S. Air Force - International Affairs Division (SAF/IA)
• U.S. Army – Deputy Assistant Secretary of the Army, Defense
Exports & Cooperation (DASA (DE&C))
• U.S. Navy and U.S. Marine Corps - Navy International
Programs Office (Navy-IPO)
DoD:
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•
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•
•
•
•
Defense Security Cooperation Agency (DSCA)
Joint Chiefs of Staff (JCS/J5)
Under Secretary for Policy
Under Secretary for Acquisition, Technology and Logistics
National Security Agency (NSA)
Other DOD Agencies (DIA, DISA, DLA, NGA, NRO, etc.)
DoD Review of Technology Transfers
POLICY
Assessing Impact on National Security
• Factors Considered:
• Policies (region, country & technology)
• Level of technology (U.S. systems and countermeasures)
• End-user & end-use history
• Military operational impact
• Inter-operability requirements
• Bilateral, multilateral and international agreements
• Foreign availability of comparable systems
• Classified data transfers
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Licensing Directorate
UNCLASSIFIED
Licensing Directorate Mission
POLICY
• Review licenses and other actions* related to the export of
controlled hardware and technology.
• Develop and adjudicate DoD positions that address US national
security concerns.
• Transmit final position to the licensing agency and defend.
• Develop, coordinate and provide DoD input to ITAR and EAR
changes to licensing departments.
• Outreach export briefing support
*Includes Commodity Jurisdiction Requests, Enforcement Support, Advisory Opinions, Retransfer
Requests
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Licensing Directorate
POLICY
Licensing
Directorate
Director
Munitions
Division Chief
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Dual-Use
Division Chief
Voluntary Disclosures/
Commodity Jurisdiction
Team Leader
Analyst
Space/Missile
Team Leader
Analyst (2)
Land Warfare
Team Leader
Analyst (4)
Air Warfare
Team Leader
Analyst (4)
Naval Warfare/
Electronics
Team Leader
Analyst (3)
Case Processing
Export Admin (2)
Red Team Leader
Gold Team Leader
4 License Analysts
Category 0 – 3 – 4 – 5
6 – 9A004
All IC manufacturing
4 License Analysts
Category 1 – 2 – 7 –
8 – 9 – EAR99
All things AERO
Case Processing
Export Admin
Special Projects
Team Leader
What DTSA Provides to the
Licensing Process
POLICY
• Warfighter Protection
• Technical Expertise
• National Security Perspective
• Honest Broker
• Program Insight
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DoD Munitions License Review Timeline
(Calendar Days)
POLICY
Case Received
from State/DTC
Created at DTSA
Reply to DTSA
within 25 days
No
"Prescreen"
OR
Yes
Position to
State/DTC
within 2 days
Draft Decision by
DTSA w/in 2 days
Referred to
DoD Reviewers
Potential Escalation
by DoD Reviewers
w/in 2 days
14 Day Extension
(if DTSA approved)
Escalate
Yes
No
Position to
State/DTC
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Escalation
Process
Position to
State/DTC
Prescreen Process
POLICY
• Eligible Licenses
• DSP-5
• DSP-73
• DSP-61
• Agreement amendments
• General Correspondence requests for re-export/re-
transfer
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Prescreen Process (Cont’d)
POLICY
• Precedents:
• Same End User Country/Identical Data
• Rationale for new license?
• Same End User Country/Different Data
• What is different?
• Different End User Country/Identical Data
• Hardware (H/W) in furtherance of an agreement
• Where in agreement is H/W identified/referenced?
• Minor changes with no impact on technology transferred
• US Government/US military end user
• Non-US origin hardware/technology
• Expansion of scope
• Major or minor changes?
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Prescreen Process (Cont’d)
POLICY
• Placement of explanatory information to aid prescreen
process
• “Commodity” block of DSP-5, DSP-73, DSP-61
• “Specific Purpose” block of DSP-5, DSP-73, DSP-61
• Electronic Licenses – “Purpose of Procurement” section
• Cover Letter
• First paragraph or as soon as possible thereafter
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DoD Dual-Use License Review Timeline
(Calendar Days)
POLICY
Case Received
from Commerce/BIS
Created at DTSA
Tiger Team
Resolution
No
License Draft
Final (LDF)
Issue w/in 20
days
Reply to
DTSA/LD
within 10 days
Referred to
DOD Reviewers
Yes
Yes
LDF Challenged
by DOD Reviewers
w/in 2 days?
Yes
In-House Review
Escalation
Process
DUSD
Adjudicate
No
Position to
Commerce/BIS
w/in 30 days
Agreement
Reached
No
Position to Commerce/BIS
w/in 30 days
Position to Commerce/BIS
within 2 days
Interagency
Agreement?
No
Operating
Committee (OC)
Review (OCLD
Issued)
Yes
Escalate?
No
Advisory
Committee on
Export Policy
(ACEP) Review
ILD Issued
Yes
No
No
License Issued
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POTUS
Review
Escalate?
Yes
Escalate?
Yes
Export Administration
Review Board (EARB)
Statistics – DoD Caseload
POLICY
40000
MUN
CCL
35000
30000
25000
20000
15000
10000
5000
18
20
09
20
08
20
07
20
06
20
05
20
04
20
03
20
02
20
01
20
00
19
99
19
98
19
97
19
96
19
95
19
94
19
93
0
Statistics – Average Time
POLICY
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MUN
CCL
40
35
30
25
20
15
10
5
0
1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
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Outcome of Calendar Year 2008 License Review
POLICY
Munitions
Dual-Use
Approve
67%
Approve
3%
Objection
>1%
Other
(RWA, etc)
8%
Approve with
Conditions
24%
35,976 Licenses Reviewed
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Objection
9%
Approve with
Conditions
86%
Other
(RWA, etc)
2%
18,178 Licenses Reviewed
2008 USG Licensing Statistics
POLICY
• Department of State: over 85,000 license
applications; roughly 40% were referred to DoD
for review.
• Department of Commerce: ~20,000 license
applications; roughly 90% were referred to DoD
for review.
• Why the difference?
– Technology Security risk varies. DoD reviews
both the applicable control lists and the license
history and has notified the licensing departments,
in writing, of those licenses types where DoD
staffing is not required
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Statistical Summary
POLICY
• Average case processing days 2008:
Munitions: 12
Dual Use: 13
• Total Cases CY 2008:
– Munitions: 35,976
– Dual Use: 18,178
(51% increase over CY 07)
(3% increase over CY 07)
• Electronically staffed Munitions cases (currently): 69%
• Analyst to License ratio (weekly): Munitions: 1: 14
Dual Use: 1: 16
• Percentage of cases prescreened: Munitions: 61%
(last 90 days)
Dual Use: 50%
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Technology Directorate
UNCLASSIFIED
Defense Technology Security Administration
Technology Directorate
POLICY
Director
Tom Devendorf
Deputy Director
Dr. James Brown
Electronics
Team
Don Palmer
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Information
and
Communication
Team
Maureen Raley
NBC/Land/Naval
/Materials and
Machine Tools
Team
Tom Colandene
Aeronautical/JSF
Team
Jim Hatfield
Missile
Defense & Space
Team
Dr. Wes Cox
Sensors and
Lasers
Mike Grenn
Technology Directorate Mission
POLICY
• To provide comprehensive, in-depth technical analysis to
support the DoD export review process.
– To ensure that the DUSD (TSP/NDP)’s technology security
objectives are considered in the planning and implementation of
major international cooperative programs.
– To chair Technical Working Groups in technology specific areas to
pinpoint critical U.S. technologies and develop sound export control
recommendations for leadership consideration.
– To provide technical advice and consultation to U.S. Defense Industry
on proposed international exports.
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Technical Review Process
POLICY
• Technical review template:
– What is the item?
– What capabilities does it provide?
– Are there other applications in addition to stated end-use?
– What is the foreign availability?
– What is the critical technology we are trying to protect?
– Options:
•
•
•
•
Approve
Approve with provisos
Deny
Return without action
– Justification is provided for all recommendations
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Technical Review Process
POLICY
• Marketing Licenses (DSP-5)
– Complete Systems Description
– Aircraft, Engines
• Build-to-Print (DSP-5)
– 22 CFR 124.13
– Complete Technical Data
• Temporary Exports (DSP-73)
– “Mock-Up” Terminology
– No Technical Data
• Manufacturing License/Technical Assistance Agreements
– Information Regarding End-User Capabilities
– Define “the Box”
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Program Technology Release
Roadmap
POLICY
• The key to developing and implementing a program
is to address technology release decisions as any
other acquisition milestone (e.g., development,
testing, production)
• The best way to do so is to develop a “Technology
Release Roadmap” which defines what technology
decisions are required and when they are required to
meet program goals
• Work backward from the end state, set goals, brief
and follow-up!
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Methodology
POLICY
In its simplest form, DTSA’s role is to answer the
following questions:
• The Who, What, When ,Where, How and Why of
the export
• Decide whether the export is in the National
Security interests of the United States
• Approve, limit or deny the export accordingly
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Methodology - Who
POLICY
Who are the recipients of the export?
• Do they exist? For how long?
• Who owns them?
• What is their normal business?
• What other work do they do?
• What contacts/contracts do they have?
• Whom do they employ (third parties)?
• What is their track record for protecting US
technology?
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Methodology - What
POLICY
What are we trying to protect and why?
• What are the capabilities of the export?
• Is it classified?
• Is there foreign availability?
• Is the export a precedent?
• How does the U.S. use it?
• How else could it be used?
• What is the diversion scenario?
• Can export be limited to address diversion concerns?
• Different model?
• Capability modification?
• Are there countermeasures?
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Methodology - When
POLICY
When is the export required?
• Will it support an ongoing operation?
• What is the production schedule?
• Are there contractual obligations?
• What are the impacts of delay?
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Methodology - Where
POLICY
Where is the export required?
• What are the regional impacts?
• What is the effect on current capability?
• Are there treaty implications?
• Are there coalition implications?
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Methodology - How
POLICY
How will the export take place?
• Government to Government?
• End item or cooperative project?
• Directly to the end user or through
intermediaries?
• Long or short duration?
• Is there a logistics tail (spare parts, follow-on
support)?
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Methodology - Why
POLICY
Why do we want to support/oppose the export?
• Has the export been pre-coordinated?
• Does it support US coalition building efforts?
• Does the export match the end use?
• Is the export required by the end user?
• Will the export harm US national security?
• Does it support US policies?
• Does the export contribute to world peace?
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License Preparation Guidance
Applicant’s Role
POLICY
• It is incumbent on the applicant to:
- Provide the information DoD needs to conduct a
thorough technical review
- “Draw the box” for their export request in the
application, so provisos are not imposed
constraining the applicant for items they have no
intention of exporting
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POLICY
Good Habits That Should Be Hard To
Break
• Focus on the basic elements of every license request:
country, commodity, end-user and end-use
• Identify license precedents or case history. Include
copies
• Provide clear, concise cover/transmittal letter
• Learn the ITAR/EAR, both layout and content
• Compliance before and after licensing
• Improve knowledge through recurrent training
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Reducing RWA's/
Avoiding Death by Proviso
POLICY
• Tell us in plain English:
• What you are doing
• What you are not doing (may be more important)
• Avoid jargon, don't rely on program names
• Describe the technical data flow between parties
• ITAR Technical Data definition – Information which is
required for the design, development, production, manufacture,
assembly, operation, repair, testing, maintenance or
modification of defense articles. This includes information in
the form of blueprints, drawings, photographs, plans,
instructions and documentation.
• Review previous license provisos
• Cite previous cases, more than one is OK
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Reducing RWA's/
Avoiding Death by Proviso
POLICY
• Government POC
• Verify POC information provided
• If none, what Service would be interested
• Countries - not all countries are created equal
• Temporary Licenses
• Tell us how will you maintain control
• Note that Government and Industry end-users are treated
differently
• Be realistic with quantities
• List internet web-site to assist tech review
• Bottom line, pass the “Grandma check.” Grandma should be
able to determine your intentions by reading your application
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Foreign National Employment
POLICY
• Include the following information for DTSA
review:
– Foreign national’s biography/resume
– Description of job duties
– Company organization chart showing where the
foreign national fits into the organization
– List of all other foreign nationals working at the
company, their job title, and where they fit in the
organization
– Copy of Non-Disclosure Statement
– Copy of Technology Control Plan
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USXports Impact and Applicant’s Role
POLICY
• We have improved our license review process by the
deployment of a database called USXports. This
database:
– Accommodates electronically submitted licenses
– Supports automated staffing
– Allows “zero time” referral of cases
– Permits rapid review of electronically submitted data
Will do NONE OF THE ABOVE for ITAR licenses if you
don’t submit to DTC electronically.
Will NOT support rapid review if you don’t submit in PDF
text searchable format.
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Industry Briefings
POLICY
• DTSA is constantly asked if a company can come in to
brief a program.
• Wrong Answer: After the license is submitted (Too
Late!)
• Right Answer: When requested.
• Best Answer: Before you start the program!
• Gives us the opportunity to tell you our concerns
so you may be able to engineer around them
• Provides a heads up to you of USG concerns
• Remember, we are not buying your product, conduct
brief accordingly
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Summary
POLICY
• Good licenses make short reviews/limit provisos
• Electronic licensing will only be as good as the
inputs:
• See first bullet
• PDF text searchable
• Industry Briefings – Let us know early when you
are starting something new
• Technology Release Road Maps
• Clearly draw “the box” around every contemplated
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DTSA Overview
POLICY
Questions?
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