Anatomy of a DDTC Marketing License Application

The ITAR's definition of Technical Data at § 120.10 excludes "basic marketing information on function or purpose or general system descriptions of defense articles." But what do you do when your company wants to include Technical Data in its marketing activities to foreign persons?

During the marketing phase of a potential effort, is a foreign party willing to sign up to a Technical Assistance Agreement? Will the marketing activities be confined to the four corners of a document so that your company can arrange to make use of § 125.4(b)(13); thereby converting Technical Data to information approved for release to the Public Domain as described in § 120.11? If the answer to these questions is "No" then your company's planned marketing activities may be an ideal subject for a DSP-05 Marketing License.

The DSP-05 license is known as the vehicle via which unclassified ITAR-controlled hardware and/or Technical Data are authorized for export. Essentially, a DSP-05 Marketing License is a specialized version of the latter class. The DSP-05 Marketing License authorizes the export of unclassified Technical Data to the foreign parties identified on the license. When the application is written well, DDTC has approved DSP-05 Marketing Licenses for the authorized export of Technical Data in the form of marketing, presentations, demonstrations (note that for hardware demonstrations outside of the US, a DSP-73 temporary export license will also be required to authorize the ITAR-controlled hardware component of the demonstration), meetings, discussions, the release of trial version ITAR-controlled software, and proposal submission to foreign parties.

What you will need to get started:

• Company Letterhead
• Thorough Description of the Product and/or Capability
• Physical Addresses of ALL Foreign Parties
• D-Trade Forms and Viewer
  

On the Company Letterhead, write out a Supplementary Explanation of Transaction. The writing should include:

• Introductory Paragraph (What foreign parties are the object of the marketing activity? What will you market? How will you market it? Why is this license required?)
• Background (Give a thorough description of the Product and/or Capability. How was the Product and/or Capability developed?)
• Purpose (What is the purpose of the license? The purpose tends to be an amplified restatement of the Introductory Paragraph. List other foreign parties ("Teammates") who require access to pre-proposal information in order for your company to be able to offer a solution that meets the needs of the potential foreign customer.)
• Identification of Foreign Parties ("Company hereby requests authorization to export unclassified technical data to the following parties:" List all of the foreign parties in a table, including physical addresses for the foreign parties)
• Description of Controlled Services, Systems, etc. Ancillary to the Request, but also Likely to be Discussed (To perhaps include, but certainly not limited to "Discussions may include actual demonstration and manipulation of data, systems and components to allow analysis and customized synthesis with extent architectures.")
  
• Self-provisos ("Company recognizes the following limitations:" List all those areas of concern to DDTC that will not be part of the marketing effort - e.g., "US Government proprietary nuclear, chemical and biological weapons detection and defeat technologies." In a DSP-05 Marketing License application, a successful outcome is largely dependent on what you tell DDTC you are absolutely not going to do as part of the marketing activities. Self-limitations/self-provisos demonstrate to DDTC that your company has thoughtful consideration for and internal discipline with regard to the rules and controls)

With the Supplementary Explanation of Transaction complete, it is time to complete the electronic DSP-05 license application. To view, complete, sign, and submit the application, you will need to ensure you've downloaded the latest version of the PureEdge Form Viewer from DDTC's D-Trade Information Center.

In completing the DSP-05 Marketing License application, here are some pointers:

• Block 3 - Keep in mind that an approved DSP-05 Marketing License can cover a broad territory. Ensure all foreign party countries are represented in Block 3. Every country you choose must be attributed to at least one party in Block 14.
• Block 9 - Unit Type = Lots.
• Block 10 = "Technical data in the form of marketing, presentations, demonstrations, meetings, discussions, and proposal submission related to..." Input your Product or Capability at the end of this phrase.
• Block 10 - Defense Article Type = Technical Data.
• Block 12 - Unit Price = Some nominal dollar value. What is the value of the Technical Data exported during the marketing phase? Probably zero, but since this field will reject zero values, put a nominal value, like $300, in as a placeholder UNLESS marketing activities will involve exports of Technical Data of a quantifiable value.
• Block 14 - List all foreign parties. When it comes to technical data, all exports are permanent; therefore there is no such thing as a foreign consignee on a DSP-05 Marketing License.
• Blocks 15, 16, 17, 18, and 19 - Check the Box designating "Same as Block [X]" or "None". Regarding Block 16, see Block 14 description above. Regarding Block 18, while DDTC states this block should be used to list third country locations of exchange of Technical Data under an approved DSP-05 license for export of unclassified technical data, I've never encountered a third country exchange related to a DSP-05 Marketing License.
• Block 20 - Copy the text of the letter you've attached as a Supplementary Explanantion of Transaction into Block 20 - preserving first and foremost those paragraphs related to positive scope.
• Block 21 - List your preferred freight forwarders just in case you need to ship a controlled document out or conduct some other international exchange in hardcopy.

Attach all pertinent backup under the most appropriate label in the DSP-05 application template cover sheet. You now should be ready to submit. For technologies introduced to DDTC and DTSA for the first time, expect a sixty-day review. For all others, be sure to attach precedent cases and expect a closer-to-thirty-day review.