Licensing technical data and classified exports

← All Insights

1. What part 125 covers

Part 125 of the International Traffic in Arms Regulations (ITAR) governs the export of technical data and of classified defense articles (22 CFR 125.1(a)). Information in the public domain is not subject to the regulations at all. The controls apply whether or not the exporter makes defense articles, if the Directorate of Defense Trade Controls (DDTC) has decided the data is subject to them (22 CFR 125.1(d)). How technical data is defined is covered in technical data and data packages.

2. What the public domain is

Public domain means information that is published and generally accessible or available to the public (22 CFR 120.34(a)). The regulation lists eight routes. They are sales at newsstands and bookstores, subscriptions open to anyone, and second class mailing privileges granted by the government (22 CFR 120.34(a)(1), 22 CFR 120.34(a)(2) and 22 CFR 120.34(a)(3)). Libraries open to the public and patents available at any patent office also count (22 CFR 120.34(a)(4) and 22 CFR 120.34(a)(5)). So does unlimited distribution at a conference, meeting, seminar, trade show or exhibition in the United States that is generally open to the public (22 CFR 120.34(a)(6)). Public release, meaning unlimited distribution, in any form after approval by the responsible government department or agency also qualifies (22 CFR 120.34(a)(7)).

The eighth route is fundamental research in science and engineering at accredited institutions of higher learning in the United States, where the results are ordinarily published and shared broadly in the scientific community (22 CFR 120.34(a)(8)). Research is not fundamental if its results are restricted for proprietary reasons or by specific government access and dissemination controls. University research also falls outside the definition if the university or its researchers accept other restrictions on publication. The same applies if the government funds the research and specific access and dissemination controls apply to its results.

3. When a license is needed

A license on Form DSP-5 is required to export unclassified technical data unless an exemption applies (22 CFR 125.2(a)). For a plant visit, details of the proposed discussions must go to DDTC so it can appraise the technical data. Unless an exemption applies, a license is required for any oral, visual or documentary disclosure of technical data by American persons to foreign persons (22 CFR 125.2(c)). That holds however the data is passed, in person, by telephone, by correspondence or electronically. It also covers disclosures during visits to foreign diplomatic missions and consular offices.

Patent filings have their own rule (22 CFR 125.2(b)). A DDTC license is needed whenever the data exported goes beyond what supports a domestic patent application, or a foreign application where no domestic one has been filed. Requests to file patent applications abroad follow the rules of the Patent and Trademark Office in 37 CFR part 5.

4. Limits that travel with the data

A technical data license, and the exemptions in section 125.4, may not be used for foreign production or technical assistance without DDTC approval (22 CFR 125.1(b)). That approval is generally given only through the agreement procedures in part 124. Data licensed for export may not be reexported, transferred or diverted from the country of end use or the authorized end user without DDTC’s prior written approval (22 CFR 125.1(c)). Nor may it be disclosed to a national of another country without that approval. Agreements are covered in what a defense services agreement is.

5. Classified exports

Requests to export defense articles, including technical data, classified by a foreign government, under executive order or under other legal authority must go to DDTC for approval (22 CFR 125.3(a)). The application must give full details of the transaction. It should list the facility security clearance code of every American party on the license, and name the cognizant security office of the party packaging the shipment. A nontransfer and use certificate on Form DSP-83 is required, signed by the applicant, the foreign consignee, the end user and an authorized representative of the foreign government.

Applications to export or temporarily import classified technical data or other classified articles are made on Form DSP-85 (22 CFR 125.7(a)). Any classified material sent with an application must move under the procedures of the National Industrial Security Program Operating Manual, unless they are inconsistent with DDTC guidance (22 CFR 125.7(b)). Approved classified data is transferred or disclosed only under that manual, unless its requirements directly conflict with DDTC guidance, in which case DDTC’s guidance governs (22 CFR 125.3(b)). Other agencies’ requirements must also be met. Classified disclosure policy is covered in disclosure of classified military information.

The license itself moves through the Defense Department (22 CFR 125.9). DDTC sends licenses for classified exports to the Defense Security Service, and sends the applicant a copy for information. The Defense Security Service returns the endorsed license to DDTC once the export is complete or the license expires, whichever comes first. How classified cargo is escorted is covered in escorting classified cargo and filing the export.

6. Plant visits

Three rules govern what may be said during a plant visit by a foreign person. Unclassified technical data may be disclosed orally and visually during a classified visit without a license, if two conditions are met (22 CFR 125.5(a)). The visit must have been licensed by DDTC, or approved by the agency with classification authority for a government-to-government program or project. Where classified information is involved, the industrial security manual must also be followed, unless it directly conflicts with DDTC guidance. The information must also relate directly to the approved classified article or data, and must not reveal design, development, production or manufacture details of any other defense article.

Classified information may be disclosed orally and visually during a visit approved by the appropriate agency, without DDTC approval, if the security manual has been followed, unless it directly conflicts with DDTC guidance (22 CFR 125.5(b)). The information must relate directly to what the agency approved and not exceed it. It also may not reveal design, development, production or manufacture details of any defense article. Unclassified technical data may be disclosed during any approved visit, classified or not, if it stays within what was approved (22 CFR 125.5(c)). That last rule does not cover data that could be used to design, develop, produce or manufacture a defense article.

Key terms

Public domain	Published information generally available to the public, outside ITAR control.
Fundamental research	University research whose results are ordinarily published and shared broadly.
DSP-5	The license form required to export unclassified technical data.
DSP-85	The application form for classified exports and temporary imports.
DSP-83	The nontransfer and use certificate signed by the applicant and the foreign parties.

Every statement above links to the document behind it. The full source list for this piece is on the sources page.

This page describes public United States government programs for general information. It is not legal, regulatory or procurement advice, and it does not address the facts of any particular case.

How Sentfore supports this

Classified and controlled material needs secure custody at every handover. Sentfore works at the delivery end of defense programs in difficult environments, providing secure movement, protective security, facilities and life support. Requirements can be sent through the contact page.