125.22

of

(data and equipment).
Certification requirements.

125.23 Filing of licenses for export of un-
classified technical data.

125.24 Filing of licenses for export of classi-
fied information (data and equip-
ment).

AUTHORITY: The provisions of this Part 125
issued under sec. 414, as amended, 68 Stat.
848; 22 U.S.C. 1934; secs. 101 and 105, E.O.
10973, 26 F.R. 10409; sec. 6, Departmental
Delegation of Authority No. 104, 26 F.R.
10608, as amended, 27 F.R. 9925, 28 F.R.
7231; and Redelegation of Authority No. 104-
3-A, 28 F.R. 7231.

or

NOTE: Export licenses for technical data
may be denied, revoked, suspended,
amended by the Department of State. (See
§ 123.05 of this subchapter.)
§ 125.01 Technical data.

As used in this subchapter the term
"technical data" means: (a) Any un-
classified information that can be used,
or be adapted for use, in the design,
production, manufacture, repair, over-
haul, processing, engineering, develop-
ment, operation, maintenance, or recon-
struction of arms, ammunition, and im-
plements of war on the U.S. Munitions
List; or (b) any technology which ad-
vances the state-of-the-art or estab-
lishes a new art in an area of significant
military applicability in the United
States; or (c) classified information as
defined in § 125.02.

1

§ 125.02 Classified information.

As used in this subchapter, the term
"classified information" is either (a)
equipment, or (b) information (relating
to any arms, ammunition, and imple-

1 The initial burden of determining
whether the technology in question ad-
vances the state-of-the-art or establishes a
new art is upon the U.S. party or applicant
in consultation with the cognizant agency
of the U.S. armed forces.

ments of war on the U.S. Munitions
List) which has been assigned a U.S.
security classification as requiring pro-
tection in the interest of national de-
fense. (Patent applications covered by
a secrecy order fall in the same category
as classified information. See § 125.05
(d).) See 125.10 and 125.11 for
exemptions.

§ 125.03 Export of technical data.

The export controls of this subchapter
over technical data (a) apply to the ex-
port of unclassified technical data relat-
ing to arms, ammunition, and imple-
ments of war on the U.S. Munitions List,
and (b) classified equipment and classi-
fied information relating to arms, am-
munition, and implements of war on the
U.S. Munitions List as defined in § 125.02.
These controls shall apply whenever the
information is to be exported by oral,
visual, or documentary means. There-
fore, an export occurs whenever techni-
cal data is, inter alia, mailed or shipped
outside the United States, carried by
hand outside the United States, disclosed
through visits abroad by American citi-
zens (including participation in brief-
ings and symposia), and disclosed to for-
eign nationals in the United States (in-
cluding plant visits and participation in
briefings and symposia). A license to ex-
port technical data shall not be used for
foreign production purposes, or for tech-
nical assistance in such production,
without the specific approval of the De-
partment of State.

2

§ 125.04 Export of unclassified techni-
cal data.

(a) General. A license issued by the
Department of State shall be required
for the export of unclassified technical
data (as defined in § 125.01 (a) and (b))
unless otherwise expressly exempted in
this subchapter (see §§ 125.10 and
125.11).

Unclassified information that does not
meet the definition of technical data or
can meet the test of an exemption in
§§ 125.10 and 125.11 (see especially
§ 125.11(a) (2)) shall not be the subject
of license applications.

(b) Patents. A license issued by the
Department of State shall be required for
the export of unclassified technical data

The term "foreign nationals" as used in
this subchapter means "All persons not citi-
zens of, not nationals of, nor immigrant
aliens to, the United States" as defined in
the Department of Defense Industrial Se-
curity Manual. However, certain other for-
eign persons may be cleared to have access
to technical data. See section 3 of the In-
dustrial Security Manual.

relating to arms, ammunition, and im-
plements of war which exceed the data
used to support a domestic or foreign fil-
ing of a patent application. The export of
technical data supporting the filing and
prosecution of patent applications in
foreign countries is subject to regula-
tions issued by the U.S. Patent Office
under 35 U.S.C. 184.

(c) Visits. A license issued by the De-
partment of State shall be required for
the export of unclassified technical data
relating to arms, ammunition, and im-
plements of war on the U.S. Munitions
List which are to be disclosed to foreign
nationals either in connection with visits
to foreign countries, including foreign
diplomatic missions and consular offices
in the United States and abroad, by U.S.
persons, or in connection with visits to
the United States by foreign nationals,
unless otherwise expressly exempted in
this subchapter (see § 125.11).

§ 125.05 Export of classified informa-
tion (data and equipment).

(a) Any request for authority to ex-
port classified information (data or
equipment) by other than the cognizant
department or agency of the U.S. Gov-
ernment shall be submitted to the De-
partment of State for approval. (See
§§ 125.10 and 125.11 for exemptions.)
The application shall set forth all perti-
nent information with full details of the
proposed transaction. (See § 125.21 for
procedure.)

(b) Classified information, as defined
in § 125.02, which is approved by the De-
partment of State for export shall be
transferred or communicated only in ac-
cordance with the requirements of the
Department of Defense Industrial Secu-
rity Manual relating to the transmission
of classified information (and any other
requirements imposed by cognizant U.S.
departments and agencies).

(c) The approval of the Department
of State shall be obtained for the export
of classified information to be disclosed
to foreign nationals either in connection
with visits to foreign countries by U.S.
persons, or in connection with visits to
the United States by foreign nationals,
unless the proposed export is expressly
exempt under the provisions of this sub-
chapter (see § 125.11). There shall be no
release of classified information in any
manner or form to any foreign national
except as otherwise expressly provided
in this subchapter.

(d) All communications relating to a
patent application covered by a secrecy
order shall be addressed to the U.S.
Patent Office. (See 37 CFR 5.11.)

EXEMPTIONS

§ 125.10 Shipments by U.S. Government
agencies.

Exports of technical data by U.S. Gov-
ernment agencies are exempt in accord-
ance with Part 126 of this subchapter.
This exemption, however, shall not ap-
ply when a U.S. Government agency, on
behalf of a private individual or firm,
acts as a transmittal agent either as a
convenience or in satisfaction of secu-
rity requirements.

§ 125.11 General exemptions.

(a) Except as provided in § 126.01, dis-
trict directors of customs and postal
authorities are authorized to permit the
export without a license of unclassified
technical data as follows:

(1) If it is in published3 form and
subject to public dissemination by being:
(i) Sold at newsstands and bookstores;
(ii) Available by subscription or pur-
chase without restrictions to any person
or available without cost to any person;

(iii) Granted second class mailing
privileges by the U.S. Government; or,
(iv) Freely available at public
libraries.

(2) If it has been approved for public
release by any U.S. Government depart-
ment or agency having authority to clas-
sify information or material under Ex-
ecutive Order 11652, as amended, and
other applicable Executive Orders, and
does not disclose the details of design,
production, or manufacture of any arms,
ammunition, or implements of war on the
U.S. Munitions List.

(3) If the export is in furtherance of
a manufacturing license or technical as-
sistance agreement approved by the De-
partment of State in accordance with
Part 124 of this subchapter.

(4) If the export is in furtherance of
a contract with an agency of the U.S.
Government or a contract between an
agency of the U.S. Government and for-
eign persons, provided the contract calls
for the export of relevant unclassified
technical data, and such data are being
exported only by the prime contractor.
Such data shall not disclose the details
of development, engineering, design,
production, or manufacture of any arms,
ammunition, or implements of war on
the U.S. Munitions List. (This exemp-
tion does not permit the prime contrac-
tor to enter into subsidiary technical

3 The burden for obtaining appropriate
U.S. Government approval for the publica-
tion of technical data falling within the
definition in § 125.01, including such data
as may be developed under other than U.S.
Government contract, is on the person or
company seeking publication.

assistance or manufacturing license
agreements, or any arrangement which
calls for the exportation of technical
data without compliance with Part 124
of this subchapter.)

(5) If it relates to firearms not in
excess of caliber .50 and ammunition for
such weapons, except technical data con-
taining advanced designs, processes, and
manufacturing techniques.

(6) If it consists of technical data,
other than design, development, or pro-
duction information relating to equip-
ment, the export of which has been pre-
viously authorized to the same recipient.

(7) If it consists of operations, main-
tenance, and training manuals, and aids
relating to equipment, the export of
which has been authorized to the same
recipient.

(8) If it consists of additional copies
of technical data previously approved for
export to the same recipient; or if it
consists of revised copies of technical
data, provided it pertains to the identical
Munitions List article, and the revisions
are solely editorial and do not add to the
content of technology previously ap-
proved for export to the same recipient.

(9) If it consists solely of technical
data being reexported to the original
source of import.

(10) If the export is by the prime con-
tractor in direct support and within the
technical and/or product limitations of
a "U.S. Government approved project"
and the prime contractor so certifies.
The Office of Munitions Control, Depart-
ment of State, will verify, upon request,
those projects which are "U.S. Govern-
ment approved", and accord an exemp-
tion to the applicant who applies for such
verification and exemption, where
appropriate, under this subparagraph."

(11) If the export solely for the
use of American citizen employees of
U.S. firms provided the U.S. firm certi-
fies its overseas employee is a U.S.
citizen and has a "need to know."

(12) If the export is directly related
to classified information, the export of
which has been previously authorized to

Not applicable to technical data relating
to Category VI(e) and Category XVI.

Classified information may also be trans-
mitted in direct support of and within the
technical and/or product limitations of such
verified "U.S. Government approved projects"
without prior Department of State approval
provided the U.S. party so certifies and com-
plies with the requirements of the Depart-
ment of Defense Industrial Security Manual
relating to the transmission of such classi-
fied information (and any other require-
ments of cognizant U.S. Government depart-
ments or agencies).

the same recipient, and does not disclose
the details of design, production, or
manufacture of any arms, ammunition,
or implements of war on the U.S.
Munitions List.

(b) Plant visits. Except as restricted
by the provisions of § 126.01 of this
subchapter:

(1) No license shall be required for
the oral and visual disclosure of unclassi-
fied technical data during the course of
a plant visit by foreign nationals pro-
vided the data is disclosed in connection
with a classified plant visit or the visit
has the approval of a U.S. Government
agency having authority for the classi-
fication of information or material un-
der Executive Order 11652, as amended,
and other applicable Executive Orders,
and the requirements of section V, para-
graph 40(d) of the Industrial Security
Manual are met.

(2) No license shall be required for the
documentary disclosure of unclassified
technical data during the course of a
plant visit by foreign nationals provided
the document does not contain technical
data as defined in § 125.01 in excess of
that released orally or visually during the
visit, is within the terms of the approved
visit request, and the person in the
United States assures that the technical
data will not be used, adapted for use, or
disclosed to others for the purpose of
manufacture or production without the
prior approval of the Department of
State in accordance with Part 124 of this
subchapter.

(3) No Department of State approval
is required for the disclosure of oral and
visual classified information during the
course of a plant visit by foreign na-
tionals provided the visit has been ap-
proved by the cognizant U.S. Defense
agency and the requirements of section
V, paragraph 40(d) of the Defense In-
dustrial Security Manual are met.
§ 125.12 Canadian shipments.

District directors of customs and
postal authorities are authorized to per-
mit the export of unclassified technical
data to Canada without an export li-
cense, except when such technical data
relate to the following:

Classified information may also be ex-
ported to such certified American citizen
employees without prior Department of State
approval provided the U.S. party complies
with the requirements of the Department of
Defense Industrial Security Manual relating
to the transmission of such classified infor-
mation (and any other requirements of cog-
nizant U.S. Government departments or
agencies). Such technical data or informa-
tion (classified or unclassified) shall not be
released by oral, visual, or documentary
means to any foreign person.

(a) Nuclear weapons strategic de-
livery systems and all specifically de-
signed components, parts, accessories,
attachments, and associated equipment
therefor;

(b) Nuclear weapons design and test
equipment defined in Category XVI;

(c) Naval nuclear propulsion equip-
ment as defined in Category VI(e);

(d) Aircraft as defined in Category
VIII(a); and

(e) Submersible and oceanographic
vessels and related articles as defined in
Category XX (a) through (d).

(This exemption does not authorize the
foreign manufacture of any arms, am-
munition, or implements of war on the
U.S. Munitions List. See Part 124 of this
subchapter.)

§ 125.20

PROCEDURES

Export of unclassified techni-
cal data.

(a) General and visits. Unless ex-
empted in § 125.10 or § 125.11 of this sub-
chapter, applications for the export or
the disclosure of nonexempt unclassified
technical data to foreign persons shall be
made (by persons in the United States
only) to the Department of State on
Form DSP-5, accompanied by five copies
of the data. In the case of visits, sufficient
details of the proposed discussions shall
be transmitted in quintuplicate for an
adequate appraisal of the data
question.

in

(b) Patents. All requests for filing
patent applications in a foreign country,
and requests for filing amendments,
modifications or supplements thereto,
shall be directed to the U.S. Patent Of-
fice in accordance with 37 CFR Part 5.
If the applicant complies with the regu-
lations of the Patent Office, no approval
of the Department of State is required
unless the applicant seeks to export tech-
nical data exceeding that used to support
a patent application in a foreign country.
In such case an application shall be re-
quired to be submitted on form DSP-5
in accordance with the provisions of
paragraph (a) of this section.

§ 125.21

Export of classified informa-
tion (data and equipment).

Unless exempted in § 125.10 or § 125.11.
applications (from U.S. citizens only)
for approval to export or disclose classi-
fied information (data or equipment) to
foreign persons shall be submitted to the
Department of State on form DSP-85.
When the application is for export of
classified technical data only it shall be
accompanied by five copies of the data
to permit an evaluation of whether an
export license may be issued. When the
application is for export of classified
equipment it shall be accompanied by five
copies of suitable descriptive informa-
tion to permit an evaluation of whether
an export license may be issued, and form
DSP-83 in the case of significant combat
equipment (see footnote 3 to § 123.10
(d) of this subchapter). All classified
materials accompanying an application
shall be treated as required by the De-
fense Industrial Security Manual, sec-
tion I, paragraph 5.

§ 125.22 Certification requirements.

An exporter in the United States
claiming any exemption for the export
of technical data in accordance with the
provisions of § 125.11, may do so by cer-
tifying that the proposed export is cov-
ered by the relevant paragraph(s) of
that section. Such certification shall be
made by marking the package or letter
"22 CFR 125.11
applicable,"
identifying the specific paragraph(s)
under which the exemption is claimed.
§ 125.23 Filing of licenses for export of
unclassified technical data.

*
*

*

DSP-5 licenses authorizing the export
of unclassified technical data shall be
presented to, and filed with the appro-
priate district director of customs or
postmaster at the time of shipment or
mailing. The district director of customs
or postmaster shall endorse and trans-
mit the licenses to the Office of Munitions
Control, Department of State, in accord-
ance with the instructions contained on
the reverse thereof.

§ 125.24 Filing of licenses for export of
classified information (data and
equipment).

DSP-85 licenses authorizing the export
of classified data or classified equipment
shall be forwarded by the Department
of State to agents of the Department of
Defense (Defense Supply Agency) to
arrange for transmission in accordance
with the Department of Defense Indus-
trial Security Manual. The Department
of State shall forward a copy of the