Revisions to the Dual/Third National Rule in the ITAR Directorate of Defense Trade Controls Bureau...
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Transcript of Revisions to the Dual/Third National Rule in the ITAR Directorate of Defense Trade Controls Bureau...
Revisions to theDual/Third National Rule
in the ITAR
Directorate of Defense Trade Controls Bureau of Political Military Affairs
2
Old (Current) Rule
• Equated citizens themselves to “proscribed” destinations
• Absolute bar to citizens of §126.1(a) countries
3
Problem with the Old Rule
• Nationality or Place of Birth was criteria for access to ITAR defense articles & technology
• Not a valid indicator of loyalty or trustworthiness
• Overly broad criteria led to absurd results
• Goes beyond AECA requirement
4
The Real Risks of Diversion
• Front companies– Some operate on behalf of governments– Some operate for private interests
• Individual profiteers – Some specialize in certain destinations– Others are indiscriminate for ultimate
destination(s)
5
Trusted Community Concept
– Export Control Reform review leading to new philosophy and approach
– Shared national security interests with allies and partners
– Shared interests in protecting proprietary data
– Recognizes/protects national investments in defense-related technologies
Applies only to transfers to licensed end-users and consignees (and sub-licensees)
Limited to transfers within the scope of the license and within scope of employment
Regular, full-time employees only
Clearance or screening required to qualify
Pending Dual/Third National Rule
7
Substantive Contacts
• Government contacts • Business contacts• Allegiance• Proprietary interests• Other contacts indicating a risk of
diversion
8
What the New Rule does
• Ends the requirement for separate licensing for dual and third country nationals
• Requires end-user employees have clearances or be screened for risk of diversion
• Requires end-users have technology security programs
9
What the New Rule does not do
• Forces foreign end-users to layoff workers who are dual or third country nationals
• Requires foreign end-users to layoff an employee because of his/her place of birth
• Automatically disqualify anyone because of family ties, travel, or other contacts with foreign nationals
10
Elements of an Effective Technology Security
Program
• An empowered export official with end-user
• An empowered security officer/manager • On site physical security program• Access management for articles & data• Entry level screening• Recurring screening• Non-disclosure statements
11
Canadian Controlled Goods
Program
• A good model for compliance• Shared assessment of security
landscape • Risk management approach• Mutual interests in nonproliferation,
human rights, and respective national security
Closing Comments
New rule moves us away from mere nationality or place of birth as criteria
• not a good measure of trustworthiness
• no real nexus to national security
New rule recognizes core concern as risk of diversion
• behavior/activities aimed at breach of security
Trusted community – mutual security interests
• share our best defense technology