DoD Export-Controlled Personal Property and Trade Security Controls IND 105 LESSON 13
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). 2
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). 3
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 4
TSC ELO 1 Purpose: Assigns responsibilities for the implementation of DoD TSC measures for DoDI transfers of DoD personal property to parties outside DoD control. 2030.08 Establishes TSC measures necessary to prevent unauthorized transfers of DoD export-controlled personal property to individual, entities, or countries. 5
TSC ELO 1 Applicability: DoD Components DoD export-controlled personal property • throughout the life cycle of the property, from initial acquisition and DoDI 2030.08 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 of transfer. • controlled by contractors . 6
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: DoDI (1) Section 2778 of Title 22, United States Code (U.S.C.), also known as the 2030.08 “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)). 7
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 DoDI authorized by statute, under regulations issued by the Secretary of State, 2030.08 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)). 8
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 DoDI transfers of DoD export-controlled personal property. These measures 2030.08 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
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 DoDI Acquisition, Technology, and Logistics (USD(AT&L)); the Defense 2030.08 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 of the Treasury (USTD). 10
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 DoDI international agreements. 2030.08 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. 11
TSC ELO 1 ENCLOSURE 2 RESPONSIBILITES 5. ASSISTANT SECRETARY OF DEFENSE FOR LOGISTICS AND MATERIEL READINESS (ASD(L&MR)). Under the authority, direction, DoDI and control of the USD(AT&L), the ASD(L&MR): 2030.08 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. 12
TSC ELO 1 ENCLOSURE 3, PROCEDURES 2. REQUIRED GENERAL MEASURES FOR DoD COMPONENTS a. Assign proper DEMIL codes for managed inventory items, at the DoDI inception of the acquisition cycle, in accordance with Volume 2 of 2030.08 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
TSC ELO 1 ENCLOSURE 3, PROCEDURES 2. REQUIRED GENERAL MEASURES FOR DoD COMPONENTS cont. d. Properly mark and protect unclassified technical data with distribution DoDI statements, and disseminate in accordance with DoDI 5230.24 (Reference 2030.08 (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. 14
TSC ELO 1 3. REQUIRED MEASURES FOR DOD COMPONENTS WHEN DoDI TRANSFERRING DOD USML OR CCL PERSONAL PROPERTY 2030.08 a. Perform TSC assessments before transferring DoD USML or CCL personal property. 15
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. 16
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. 17
ITAR ELO 2 Purpose To control the export and import of defense articles and defense services. 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. 18
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) 19
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 20
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