20601r4.pdf

UNCLASSIFIED

NI 2060.1R4 Approved: 5 January 2004 Subgroup: Arms Control, Disarmament, and Verification

NGA Instruction for Export Controls

1. References.

a. Primary. NGA PD 2000R3, Policy Directive for International and Foreign Affairs, 24 November 2003.

b. Secondary. References are listed in the appendix.

2. Purpose. Implement referenced authorities to ensure only appropriate exports of technology occur between NGA and foreign governments, foreign nationals, and international organizations to prevent releasing important U.S. technological advantages such as computer chips, missile guidance, and cryptography. NGA rigorously enforces the provisions of the laws listed in the appendix with special attention to the Arms Export Control Act and the Export Administration Regulation (appendix, references 2 and 5).

This instruction supersedes NI 2060.1R3, same title, 24 November 2003.

3. Policy. Consistent with U.S. national security and foreign policy, NGA will ensure exports protect U.S. technological, intellectual, and informational advantages. NGA exports to foreign governments, foreign nationals, or international organizations will occur only in the context of approved international arrangements and consistent with all applicable law, policy, and procedures.

4. Applicability and Scope. This instruction applies to all NGA organizations and covers all exports of technology between NGA personnel or their representatives and foreign governments, foreign nationals, and international organizations. The complexity of the subject matter of this instruction demands that individuals assigned duties under this instruction receive training consistent with those duties. It is beyond the scope of this document to summarize the multitude of laws and regulations that govern this topic.

5. Definitions.

a. Technology transfer or export includes but is not necessarily limited to

(1) Actual shipment or transmission out of the United States of items (including technical data) controlled according to the authorities cited in the appendix.

(2) Disclosure, including oral or visual, of items (including technical data) controlled according to the authorities cited in the appendix to foreign nationals whether in the United States or abroad.

NI 2060.1R4 Appendix Export Controls

(3) Performance of a service controlled according to the authorities cited in the appendix, on behalf of, or for the benefit of, a foreign national in the United States or abroad.

b. Desk officer. A person within an organization who accomplishes tasks related to technology export.

c. Technical data. Classified or unclassified information of any kind that is used, or adapted for use, in the design, production, manufacture, repair, overhaul, processing, engineering, development, operation, maintenance, or reconstruction of goods or munitions; or any technology that advances the state of the art or establishes a new art in an area of significant military applicability in the United States. The data may be tangible, such as a model, prototype, blueprint, or operating manual, or intangible, such as a technical service or oral or visual interactions. The term “technical data” is defined differently within certain regulations. Desk officers should be aware of the differences between the regulations and should obtain guidance from the Office of General Counsel (OGC) regarding regulations’ impacts on a specific export.

d. Technology, for the purpose of this instruction, includes both technology and goods as defined in the appendix, reference 8. While this is a good general definition of technology, the term is defined differently within certain regulations.

Desk officers should be aware of the differences between the regulations and should obtain guidance from OGC regarding regulations’ impacts on a specific export.

(1) Technology. The technical information, including technical data and computer software, that can be used to design, produce, manufacture, use, or reconstruct goods.

(2) Goods. Any articles, materials, supplies, or manufactured products, including inspection and test equipment.

6. Responsibilities.

a. Director of the International and Policy Office (OIP).

(1) Serves as the NGA transfer and export control officer to oversee the export control program and may delegate certain functions to action officers.

(2) Ensures that transfers and exports are consistent with U.S. national security and foreign policy objectives and ensures that transfers and exports are in accordance with U.S. laws and regulations.

(3) Develops policy, resource advocacy, and oversight of programs for technology exports and transfers.

(4) Oversees the export control program and establishes a system of compliance.

(5) Concurs in the designation of NGA desk officers and ensures they have training. In general, the NGA desk officer belongs to the specific NGA organization that initiates an export control proposal.

(6) Reviews determinations made by desk officers, performs necessary external coordination, and verifies that necessary licenses are obtained.

(7) Reviews technology assessment control plans (appendix, references 11, 14, and 18).

(8) Reviews technology transfer control plans prepared for foreign military sales (FMS) (appendix, references 11, 17, and 19).

(9) Reviews proposed accommodation procurement exports (appendix, references 11, 17, and 20).

(10) Reviews proposed leases, loans, and transfers of surplus property to foreign persons (appendix, reference 7).

(11) Oversees disclosure and exchange of technical data with foreign persons (appendix, references 11, 12, 13, and 16).

(12) Reviews proposed Cooperative Research and Development Agreements (CRADAs) involving foreign persons.

(13) Ensures that NGA’s interests are represented to the Department of State (DOS) and Department of Commerce (DOC) through the Defense Technology Security Administration with respect to exports effected by agencies other than NGA (appendix, references 9 and 10).

(14) Ensures adherence to all Presidential Decision Directives and Director of Central Intelligence (DCI) documents that may affect certain exports. Guidance about their applicability to a specific export should be obtained from OGC.

(15) Represents NGA in working with DOS, DOC, DoD organizations, and other appropriate organizations on international transfer and export activities executed by NGA.

(16) Ensures that any transfer or export incorporates appropriate release disclosure guidance for second-party release.

(17) Coordinates with OGC and other NGA organizations.

b. Directors for Analysis and Production Directorate, Acquisition Directorate, and Enterprise Operations Directorate.

(1) Identify proposals for technology transfer within the terms of Directorate-executed exchange agreements, FMS cases, and accommodation procurement activities.

(2) Assist OIP with technical support including desk officer support.

(3) Coordinate on OIP-led staffing of external technology transfer requests involving imagery and geospatial technology.

c. OGC.

(1) Advises on all legal issues involving transfers and export controls.

(2) Provides legal review on all transfers or exports to be conducted under an FMS case, an accommodation procurement, other technology transfer mechanisms such as CRADAs, and any international agreement, international arrangement, or other activity.

d. Directorate desk officers.

(1) Review and staff all proposed exports to determine whether the exports are controlled according to appendix, references 1, 2, 3, 4, 5, or 6, and submit the Export Control Document (described under procedures in paragraph 7 below) to the transport and export control officer.

(2) Ensure staffing to allow all NGA stakeholders opportunity for comment.

(3) Attend related training at least annually.

(4) Ensure that any transfer or export incorporates appropriate release disclosure guidance for second-party release.

(5) Obtain licenses as required when NGA is the exporting organization.

(6) Prepare technology assessment control plans (appendix, references 14, 18, and 19).

(7) Coordinate preparation of technology transfer control plans required for FMS (appendix, references 11 and 17).

(8) Prepare documents required for proposed accommodation procurement exports (appendix, references 11 and 17).

(9) Review proposed leases, loans, and excess of surplus property to foreign persons (appendix, reference 7).

(10) Oversee disclosure and exchange of technical data with foreign persons in coordination with the NGA transfer and export control officer (appendix, references 11, 12, 13, and 16).

(11) Review proposed CRADAs involving foreign persons.

(12) Include appropriate release disclosure guidance for second-party release in any transfer or export.

e. NGA personnel. All personnel share the responsibility to be aware of the potential for technology export in the course of their business and to follow this instruction when such potential exists.

7. Procedures.

a. Recognition of a potential technology export. All NGA organizations must evaluate their programs to determine if technology export may take place.

b. Reporting of potential technology export. Employees report incidents of potential technology export to the export control officer, or desk officer, who has oversight of the program involved.

c. Staffing of potential technology exports. Desk officers staff potential technology exports in accordance with the responsibilities above. It is the responsibility of the desk officer, working with the proposing NGA office, to initiate the Export Control Document. This document, which serves as the formal documentation of the proposed export, must be staffed to all offices that have a business interest in the export decision using a staff summary sheet. The NGA export controls officer in OIP determines the appropriate staffing. The Export Control Document contains the following provisions:

(1) Authority. This provision identifies and explains the legal authority under which the export is to be made.

(2) Nature of export. This provision identifies what is to be exported, to what country or entity the export is to be sent, the cost to the U.S.

Government of the export, the NGA proponent of the export, and the reason for the export. Exports over one million dollars may require congressional notification.

(3) Sensitivity. This provision analyzes the export by reference to the International Traffic in Arms Regulation (appendix, reference 6) and the Export Administration Regulations (appendix, reference 5) and assesses the risks of inappropriate disclosure or dissemination of the technology.

(4) Controls. This provision describes the plan for transferring the technology and the control plan for keeping the transfer secure.

(5) Public policy and national security. This provision documents the public policy and national security implications of the export.

(6) Signatures. The Export Control Document must be signed by the NGA proponent, the designated desk officer, and the NGA transfer and export controls officer (Director of OIP).

d. Approval of potential technology export. OIP evaluates and approves potential technology exports in accordance with responsibilities above.

Appendix Secondary References

1. 10 U.S.C. 443, Imagery Intelligence and geospatial information: support for foreign countries.

2. 22 U.S.C. 2778-2994, Arms Export Control Act.

3. 50 U.S.C. 403-5(b), Responsibilities of the Secretary of Defense pertaining to National Foreign Policy.

4. 50 U.S.C. 2401 et seq., Executive Order No. 12924, Export Administration Act, 19 August 1994.

5. 15 CFR Chapter VII, Export Administration Regulation.

6. 22 CFR Part 120-130, International Traffic in Arms Regulations.

7. DoD Directive 2030.8, Trade Security Controls on DoD Excess and Surplus Personal Property, 17 November 1997.

8. DoD Directive 2040.2, International Transfers of Technology, Goods, Services, and Munitions, 17 January 1984.

9. DoD Directive 5105.51, Defense Technology Security Administration, 10 May 1985

10. DoD Directive 5120.49, DoD International Technology Transfer Coordinating Committee, 14 March 1990.

11. DoD Directive 5230.11, Disclosure of Classified Military Information to Foreign Governments and International Organizations, 16 June 1992.

12. DoD Directive 5230.20, Visits and Assignments of Foreign Representatives, 24 April 1992.

13. DoD Directive 5230.25, Withholding of Unclassified Technical Data from Public Disclosure, 5 November 1984.

14. DoD Directive 5530.3, International Agreements, 11 June 1987.

15. DoD Instruction 5210.52, Security Classification of Airborne Sensor Imagery, 18 May 1989.

16. DoD Instruction 5230.27, Presentation of DoD-Related Scientific and Technical Papers at Meetings, 6 October 1987.

17. NI 2140.1R7, NGA Instruction for Security Assistance Management, 5 January 2004.

18. NI 2075.1R2, NGA Instruction for International Agreements and Arrangements, 24 November 2003.

19. NI 3200.1R6, NGA Instruction for Technology Transfer, 5 January 2004.

20. NI 5115.1R7, NGA Instruction for Accommodation Procurement, 8 December 2003.