## TITLE 22\--FOREIGN RELATIONS

**CHAPTER I\--DEPARTMENT OF STATE**

PART 125 \-- LICENSES FOR THE EXPORT OF TECHNICAL DATA AND CLASSIFIED
DEFENSE ARTICLES

**Section Contents**\
§ 125.1   Exports subject to this part.\
§ 125.2   Exports of unclassified technical data.\
§ 125.3   Exports of classified technical data and classified defense
articles.\
§ 125.4   Exemptions of general applicability.\
§ 125.5   Exemptions for plant visits.\
§ 125.6   Certification requirements for exemptions.\
§ 125.7   Procedures for the export of classified technical data and
other classified defense articles.\
§ 125.8   \[Reserved\]\
§ 125.9   Filing of licenses and other authorizations for exports of
classified technical data and classified defense articles.

**Authority:**   Secs. 2 and 38, Pub. L. 90--629, 90 Stat. 744 (22
U.S.C. 2752, 2778); E.O. 11958, 42 FR 4311; 3 CFR, 1977 Comp. p. 79; 22
U.S.C. 2651a.

**Source:**   58 FR 39310, July 22, 1993, unless otherwise noted.

##### § 125.1   Exports subject to this part.

\(a\) The controls of this part apply to the export of technical data
and the export of classified defense articles. Information which is in
the public domain (see §120.11 of this subchapter and §125.4(b)(13)) is
not subject to the controls of this subchapter.

\(b\) A license for the export of technical data and the exemptions in
§125.4 may not be used for foreign production purposes or for technical
assistance unless the approval of the Directorate of Defense Trade
Controls has been obtained. Such approval is generally provided only
pursuant to the procedures specified in part 124 of this subchapter.

\(c\) Technical data authorized for export may not be reexported,
transferred or diverted from the country of ultimate end-use or from the
authorized foreign end-user (as designated in the license or approval
for export) or disclosed to a national of another country without the
prior written approval of the Directorate of Defense Trade Controls.

\(d\) The controls of this part apply to the exports referred to in
paragraph (a) of this section regardless of whether the person who
intends to export the technical data produces or manufactures defense
articles if the technical data is determined by the Directorate of
Defense Trade Controls to be subject to the controls of this subchapter.

\(e\) The provisions of this subchapter do not apply to technical data
related to articles in Category VI(e) and Category XVI. The export of
such data is controlled by the Department of Energy and the Nuclear
Regulatory Commission pursuant to the Atomic Energy Act of 1954, as
amended, and the Nuclear Non-Proliferation Act of 1978.

\[58 FR 39310, July 22, 1993, as amended at 71 FR 20544, Apr. 21, 2006\]

##### § 125.2   Exports of unclassified technical data.

(a) *License* . A license (DSP--5) is required for the export of
unclassified technical data unless the export is exempt from the
licensing requirements of this subchapter. In the case of a plant visit,
details of the proposed discussions must be transmitted to the
Directorate of Defense Trade Controls for an appraisal of the technical
data. Seven copies of the technical data or the details of the
discussion must be provided.

\(b\) *Patents* . A license issued by the Directorate of Defense Trade
Controls is required for the export of technical data whenever the data
exceeds that which is used to support a domestic filing of a patent
application or to support a foreign filing of a patent application
whenever no domestic application has been filed. Requests for the filing
of patent applications in a foreign country, and requests for the filing
of amendments, modifications or supplements to such patents, should
follow the regulations of the U.S. Patent and Trademark Office in
accordance with 37 CFR part 5. The export of technical data to support
the filing and processing of patent applications in foreign countries is
subject to regulations issued by the U.S. Patent and Trademark Office
pursuant to 35 U.S.C. 184.

\(c\) *Disclosures.* Unless otherwise expressly exempted in this
subchapter, a license is required for the oral, visual or documentary
disclosure of technical data by U.S. persons to foreign persons. A
license is required regardless of the manner in which the technical data
is transmitted (e.g., in person, by telephone, correspondence,
electronic means, etc.). A license is required for such disclosures by
U.S. persons in connection with visits to foreign diplomatic missions
and consular offices.

\[58 FR 39310, July 22, 1993, as amended at 71 FR 20544, Apr. 21, 2006\]

##### § 125.3   Exports of classified technical data and classified defense articles.

(a) A request for authority to export defense articles, including
technical data, classified by a foreign government or pursuant to
Executive Order 12356, successor orders, or other legal authority must
be submitted to the Directorate of Defense Trade Controls for approval.
The application must contain full details of the proposed transaction.
It should also list the facility security clearance code of all U.S.
parties on the license and include the Defense Security Service
cognizant security office of the party responsible for packaging the
commodity for shipment. A nontransfer and use certificate (Form DSP--83)
executed by the applicant, foreign consignee, end-user and an authorized
representative of the foreign government involved will be required.

\(b\) Classified technical data which is approved by the Directorate of
Defense Trade Controls either for export or reexport after a temporary
import will be transferred or disclosed only in accordance with the
requirements in the Department of Defense National Industrial Security
Program Operating Manual (unless such requirements are in direct
conflict with guidance provided by the Directorate of Defense Trade
Controls, in which case the latter guidance must be followed). Any other
requirements imposed by cognizant U.S. departments and agencies must
also be satisfied.

\(c\) The approval of the Directorate of Defense Trade Controls must be
obtained for the export of technical data by a U.S. person to a foreign
person in the U.S. or in a foreign country unless the proposed export is
exempt under the provisions of this subchapter.

\(d\) All communications relating to a patent application covered by an
invention secrecy order are to be addressed to the U.S. Patent and
Trademark Office (see 37 CFR 5.11).

\[58 FR 39310, July 22, 1993, as amended at 71 FR 20544, Apr. 21, 2006\]

##### § 125.4   Exemptions of general applicability.

\(a\) The following exemptions apply to exports of technical data for
which approval is not needed from the Directorate of Defense Trade
Controls. These exemptions, except for paragraph (b)(13) of this
section, do not apply to exports to proscribed destinations under §126.1
of this subchapter or for persons considered generally ineligible under
§120.1(c) of this subchapter. The exemptions are also not applicable for
purposes of establishing offshore procurement arrangements or producing
defense articles offshore (see §124.13), except as authorized under
§125.4 (c). If §126.8 of this subchapter requirements are applicable,
they must be met before an exemption under this section may be used.
Transmission of classified information must comply with the requirements
of the Department of Defense National Industrial Security Program
Operating Manual (unless such requirements are in direct conflict with
guidance provided by the Directorate of Defense Trade Controls, in which
case the latter guidance must be followed) and the exporter must certify
to the transmittal authority that the technical data does not exceed the
technical limitation of the authorized export.

\(b\) The following exports are exempt from the licensing requirements
of this subchapter.

\(1\) Technical data, including classified information, to be disclosed
pursuant to an official written request or directive from the U.S.
Department of Defense;

\(2\) Technical data, including classified information, in furtherance
of a manufacturing license or technical assistance agreement approved by
the Department of State under part 124 of this subchapter and which meet
the requirements of §124.3 of this subchapter;

\(3\) Technical data, including classified information, in furtherance
of a contract between the exporter and an agency of the U.S. Government,
if the contract provides for the export of the data and such data does
not disclose the details of design, development, production, or
manufacture of any defense article;

\(4\) Copies of technical data, including classified information,
previously authorized for export to the same recipient. Revised copies
of such technical data are also exempt if they pertain to the identical
defense article, and if the revisions are solely editorial and do not
add to the content of technology previously exported or authorized for
export to the same recipient;

\(5\) Technical data, including classified information, in the form of
basic operations, maintenance, and training information relating to a
defense article lawfully exported or authorized for export to the same
recipient. Intermediate or depot-level repair and maintenance
information may be exported only under a license or agreement approved
specifically for that purpose;

\(6\) Technical data, including classified information, related to
firearms not in excess of caliber .50 and ammunition for such weapons,
except detailed design, development, production or manufacturing
information;

\(7\) Technical data, including classified information, being returned
to the original source of import;

\(8\) Technical data directly related to classified information which
has been previously exported or authorized for export in accordance with
this part to the same recipient, and which does not disclose the details
of the design, development, production, or manufacture of any defense
article;

\(9\) Technical data, including classified information, sent by a U.S.
corporation to a U.S. person employed by that corporation overseas or to
a U.S. Government agency. This exemption is subject to the limitations
of §125.1(b) and may be used only if:

\(i\) The technical data is to be used overseas solely by U.S. persons;

\(ii\) If the U.S. person overseas is an employee of the U.S. Government
or is directly employed by the U.S. corporation and not by a foreign
subsidiary; and

\(iii\) The classified information is sent overseas in accordance with
the requirements of the Department of Defense National Industrial
Security Program Operating Manual (unless such requirements are in
direct conflict with guidance provided by the Directorate of Defense
Trade Controls, in which case the latter guidance must be followed).

\(10\) Disclosures of unclassified technical data in the U.S. by U.S.
institutions of higher learning to foreign persons who are their bona
fide and full time regular employees. This exemption is available only
if:

\(i\) The employee\'s permanent abode throughout the period of
employment is in the United States;

\(ii\) The employee is not a national of a country to which exports are
prohibited pursuant to §126.1 of this subchapter; and

\(iii\) The institution informs the individual in writing that the
technical data may not be transferred to other foreign persons without
the prior written approval of the Directorate of Defense Trade Controls;

\(11\) Technical data, including classified information, for which the
exporter, pursuant to an arrangement with the Department of Defense,
Department of Energy or NASA which requires such exports, has been
granted an exemption in writing from the licensing provisions of this
part by the Directorate of Defense Trade Controls. Such an exemption
will normally be granted only if the arrangement directly implements an
international agreement to which the United States is a party and if
multiple exports are contemplated. The Directorate of Defense Trade
Controls, in consultation with the relevant U.S. Government agencies,
will determine whether the interests of the United States Government are
best served by expediting exports under an arrangement through an
exemption (see also paragraph (b)(3) of this section for a related
exemption);

\(12\) Technical data which is specifically exempt under part 126 of
this subchapter; or

\(13\) Technical data approved for public release (i.e., unlimited
distribution) by the cognizant U.S. Government department or agency or
Office of Freedom of Information and Security Review. This exemption is
applicable to information approved by the cognizant U.S. Government
department or agency for public release in any form. It does not require
that the information be published in order to qualify for the exemption.

\(c\) Defense services and related unclassified technical data are
exempt from the licensing requirements of this subchapter, to nationals
of NATO countries, Australia, Japan, and Sweden, for the purposes of
responding to a written request from the Department of Defense for a
quote or bid proposal. Such exports must be pursuant to an official
written request or directive from an authorized official of the U.S.
Department of Defense. The defense services and technical data are
limited to paragraphs (c)(1), (c)(2), and (c)(3) of this section and
must not include paragraphs (c)(4), (c)(5), and (c)(6) of this section
which follow:

\(1\) *Build-to-Print.* "Build-to-Print" means that a foreign consignee
can produce a defense article from engineering drawings without any
technical assistance from a U.S. exporter. This transaction is based
strictly on a "hands-off" approach since the foreign consignee is
understood to have the inherent capability to produce the defense
article and only lacks the necessary drawings. Supporting documentation
such as acceptance criteria, and specifications, may be released on an
as-required basis ( *i.e.* "must have") such that the foreign consignee
would not be able to produce an acceptable defense article without this
additional supporting documentation. Documentation which is not
absolutely necessary to permit manufacture of an acceptable defense
article ( *i.e.* "nice to have") is not considered within the boundaries
of a "Build-to-Print" data package;

\(2\) *Build/Design-to-Specification.* "Build/Design-to-Specification"
means that a foreign consignee can design and produce a defense article
from requirement specifications without any technical assistance from
the U.S. exporter. This transaction is based strictly on a "hands-off"
approach since the foreign consignee is understood to have the inherent
capability to both design and produce the defense article and only lacks
the necessary requirement information;

\(3\) *Basic Research.* "Basic Research" means a systemic study directed
toward greater knowledge or understanding of the fundamental aspects of
phenomena and observable facts without specific applications towards
processes or products in mind. It does not include "Applied Research" (
*i.e.* a systemic study to gain knowledge or understanding necessary to
determine the means by which a recognized and specific need may be met.
It is a systematic application of knowledge toward the production of
useful materials, devices, and systems or methods, including design,
development, and improvement of prototypes and new processes to meet
specific requirements.);

\(4\) *Design Methodology,* such as: The underlying engineering methods
and design philosophy utilized ( *i.e.,* the "why" or information that
explains the rationale for particular design decision, engineering
feature, or performance requirement); engineering experience (e.g.,
lessons learned); and the rationale and associated databases (e.g.,
design allowables, factors of safety, component life predictions,
failure analysis criteria) that establish the operational requirements
(e.g., performance, mechanical, electrical, electronic, reliability and
maintainability) of a defense article. (Final analytical results and the
initial conditions and parameters may be provided.)

\(5\) *Engineering Analysis,* such as: Analytical methods and tools used
to design or evaluate a defense article\'s performance against the
operational requirements. Analytical methods and tools include the
development and/or use of mockups, computer models and simulations, and
test facilities. (Final analytical results and the initial conditions
and parameters may be provided.)

\(6\) *Manufacturing Know-how,* such as: information that provides
detailed manufacturing processes and techniques needed to translate a
detailed design into a qualified, finished defense article. (Information
may be provided in a build-to-print package that is necessary in order
to produce an acceptable defense article.)

(d)(1) Defense services for the items identified in §123.16(b)(10) of
this subchapter exported by accredited U.S. institutions of higher
learning are exempt from the licensing requirements of this subchapter
when the export is:

\(i\) To countries identified in §123.16(b)(10)(i) of this subchapter
and exclusively to nationals of such countries when engaged in
international fundamental research conducted under the aegis of an
accredited U.S. institution of higher learning; and

\(ii\) In direct support of fundamental research as defined in
§120.11(8) of this subchapter being conducted either at accredited U.S.
institutions of higher learning or an accredited institution of higher
learning, a governmental research center or an established government
funded private research center located within the countries identified
in §123.16(b)(10)(i) of this subchapter; and

\(iii\) Limited to discussions on assembly of any article described in
§123.16(b)(10) of this subchapter and or integrating any such article
into a scientific, research, or experimental satellite.

\(2\) The exemption in paragraph (d)(1) of this section, while allowing
accredited U.S. institutions of higher learning to participate in
technical meetings with foreign nationals from countries specified in
§123.16(b)(10)(i) of this subchapter for the purpose of conducting space
scientific fundamental research either in the United States or in these
countries when working with information that meets the requirements of
§120.11 of this subchapter in activities that would generally be
controlled as a defense service in accordance with §124.1(a) of this
subchapter, does not cover:

\(i\) Any level of defense service or information involving launch
activities including the integration of the satellite or spacecraft to
the launch vehicle;

\(ii\) Articles and information listed in the Missile Technology Control
Regime (MTCR) Annex or classified as significant military equipment; or

\(iii\) The transfer of or access to technical data, information, or
software that is otherwise controlled by this subchapter.

\[58 FR 39310, July 22, 1993, as amended at 65 FR 45284, July 21, 2000;
66 FR 35900, July 10, 2001; 67 FR 15101, Mar. 29, 2002; 71 FR 20545,
Apr. 21, 2006\]

##### § 125.5   Exemptions for plant visits.

(a) A license is not required for the oral and visual disclosure of
unclassified technical data during the course of a classified plant
visit by a foreign person, provided: The classified visit has itself
been authorized pursuant to a license issued by the Directorate of
Defense Trade Controls; or the classified visit was approved in
connection with an actual or potential government-to-government program
or project by a U.S. Government agency having classification
jurisdiction over the classified defense article or classified technical
data involved under Executive Order 12356 or other applicable Executive
Order; and the unclassified information to be released is directly
related to the classified defense article or technical data for which
approval was obtained and does not disclose the details of the design,
development, production or manufacture of any other defense articles. In
the case of visits involving classified information, the requirements of
the Department of Defense National Industrial Security Program Operating
Manual must be met (unless such requirements are in direct conflict with
guidance provided by the Directorate of Defense Trade Controls, in which
case the latter guidance must be followed).

\(b\) The approval of the Directorate of Defense Trade Controls is not
required for the disclosure of oral and visual classified information to
a foreign person during the course of a plant visit approved by the
appropriate U.S. Government agency if: The requirements of the
Department of Defense National Industrial Security Program Operating
Manual have been met (unless such requirements are in direct conflict
with guidance provided by the Directorate of Defense Trade Controls, in
which case the latter guidance must be followed); the classified
information is directly related to that which was approved by the U.S.
Government agency; it does not exceed that for which approval was
obtained; and it does not disclose the details of the design,
development, production or manufacture of any defense articles.

\(c\) A license is not required for the disclosure to a foreign person
of unclassified technical data during the course of a plant visit
(either classified or unclassified) approved by the Directorate of
Defense Trade Controls or a cognizant U.S. Government agency provided
the technical data does not contain information in excess of that
approved for disclosure. This exemption does not apply to technical data
which could be used for design, development, production or manufacture
of a defense article.

\[71 FR 20545, Apr. 21, 2006\]

##### § 125.6   Certification requirements for exemptions.

(a) To claim an exemption for the export of technical data under the
provisions of this subchapter (e.g., §§125.4 and 125.5), the exporter
must certify that the proposed export is covered by a relevant section
of this subchapter, to include the paragraph and applicable
subparagraph. Certifications consist of clearly marking the package or
letter containing the technical data "22 CFR \[insert ITAR exemption\]
applicable." This certification must be made in written form and
retained in the exporter\'s files for a period of 5 years (see §123.22
of this subchapter).

\(b\) For exports that are oral, visual, or electronic the exporter must
also complete a written certification as indicated in paragraph (a) of
this section and retain it for a period of 5 years.

\[68 FR 61102, Oct. 27, 2003\]

##### § 125.7   Procedures for the export of classified technical data and other classified defense articles.

(a) All applications for the export or temporary import of classified
technical data or other classified defense articles must be submitted to
the Directorate of Defense Trade Controls on Form DSP--85.

\(b\) An application for the export of classified technical data or
other classified defense articles must be accompanied by seven copies of
the data and a completed Form DSP--83 (see §123.10 of this subchapter).
Only one copy of the data or descriptive literature must be provided if
a renewal of the license is requested. All classified materials
accompanying an application must be transmitted to the Directorate of
Defense Trade Controls in accordance with the procedures contained in
the Department of Defense National Industrial Security Program Operating
Manual (unless such requirements are in direct conflict with guidance
provided by the Directorate of Defense Trade Controls, in which case the
latter guidance must be followed).

\[71 FR 20546, Apr. 21, 2006\]

##### § 125.8   \[Reserved\]

##### § 125.9   Filing of licenses and other authorizations for exports of classified technical data and classified defense articles.

Licenses and other authorizations for the export of classified technical
data or classified defense articles will be forwarded by the Directorate
of Defense Trade Controls to the Defense Security Service of the
Department of Defense in accordance with the provisions of the
Department of Defense National Industrial Security Program Operating
Manual (unless such requirements are in direct conflict with guidance
provided by the Directorate of Defense Trade Controls, in which case the
latter guidance must be followed). The Directorate of Defense Trade
Controls will forward a copy of the license to the applicant for the
applicant\'s information. The Defense Security Service will return the
endorsed license to the Directorate of Defense Trade Controls upon
completion of the authorized export or expiration of the license,
whichever occurs first.

\[71 FR 20546, Apr. 21, 2006\]

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