Technology Transfer and Export Control · 4 of 5
The controlled category is wider than drawings. The regulation defines technical data as information, other than software, "required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of defense articles", including blueprints, drawings, photographs, plans, instructions and documentation (22 CFR 120.33(a)).
It also captures classified information relating to controlled articles and services, information under an invention secrecy order, and software directly related to defense articles (22 CFR 120.33(a)).
Two exclusions do real work. The definition "does not include information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities, or information in the public domain". And it "does not include basic marketing information on function or purpose or general system descriptions of defense articles" (22 CFR 120.33(b)).
That second exclusion is the space in which a capability can be discussed before anything is released. It is narrow, and it stops at function, purpose and general description.
The most useful boundary in this area is between operating a system and rebuilding it. Basic operation and maintenance training sits on one side, and deeper maintenance sits on the other.
The regulation puts it plainly. "Technical assistance agreements are not required for the provision of training in the basic operation and maintenance of defense articles lawfully exported or authorized for export to the same recipient. This does not include training in intermediate and depot level maintenance" (22 CFR 124.2(a)).
The matching exemption for the data itself carries the same limit: "Intermediate or depot-level repair and maintenance information may be exported only under a license or agreement approved specifically for that purpose" (22 CFR 125.4(b)(5)).
The manual restates the boundary and then adds the reason. Release for intermediate and depot level maintenance "must be reviewed to ensure that the Technical Data Package (TDP) does not contain information that can be used for design, development, or production of an item" (SAMM C3.5.4.2). A maintenance manual and a manufacturing manual can be closer than they look.
Ownership determines the route. Government owned packages "are released under FMS procedures and only in support of a specifically defined, lawful, and authorized USG purpose", and the offer document "must cover the full cost of preparation, reproduction, and handling of technical data" (SAMM C3.5.4.2.1).
Privately owned data normally moves through commercial channels under export licensing. Where a component releases it under a security cooperation program, "the owner must authorize its release, and the data must be properly marked", and the offer document again carries the full cost (SAMM C3.5.4.2.2).
Marking is not a formality. The implementing agency must ensure the package shows the authorized rights, the security classification and any other restrictions, with each separate part marked, or the restrictions carried on the cover where individual marking is not possible (SAMM C3.5.4.4).
A request for a package has to state which of two purposes it serves: operating and maintaining equipment already held, or production, follow-on development or improvement. The approved purpose is then identified in the offer document (SAMM C3.5.4.3).
The maintenance test is a test of necessity. Packages "are sold for Operations and Maintenance (O&M) only if the IA verifies that the article was provided to the purchaser through authorized transfer and there is no other viable means of maintaining the U.S.-origin equipment" (SAMM C3.5.4.4.1). The supporting data sheet asks whether existing manuals and instructions would meet the requirement, what the in-country inventory is, and when repair parts support is expected to end.
The production test is a test of consequence, and it begins with a sequencing rule. "TDPs are offered for study only when DoD is prepared to release the TDP for production" (SAMM C3.5.4.4.2). A study release is therefore a signal, not a preliminary step.
The manual then states the case for and against. Foreign manufacture benefits the United States when it strengthens friendly forces, improves defense relationships or enhances interoperability, and it may help maintain a partner's defense industrial base. But requests "are normally denied if an article is in limited supply or if foreign production would adversely impact the U.S. industrial base" (SAMM C3.5.4.4.2).
The data sheet for a production release runs to eighteen items. It asks for the quantity and schedule, and for third country purchasers if the output is for onward sale. It also asks for five years of production history, known United States sources of supply, other countries already authorized to produce the article, and the anticipated impact on existing programs (SAMM Table C3.T4).
A partner may need the authority as well as the data. The manual notes that this can come through the offer document, through an international agreement such as a cooperative development memorandum, or through a combination of the two (SAMM C3.5.4.4.2). Updates are handled separately again, as revisioning services carrying their own note (SAMM C3.5.4.4.3).
Data supplied by a partner is protected on the partner's terms. Information provided by a foreign government in confidence is held in confidence, as is information produced jointly under an arrangement with a purchaser (SAMM C3.5.3).
The manual is firm about who controls it. Such classification decisions "should be honored and under no circumstances modified without the express written consent of the Government that provided the information" (SAMM C3.5.3).
Offer documents and procurement contracts are subject to the Freedom of Information Act, and requests for them are referred to the component's legal counsel. Proposed decisions to withhold or release an accepted or in-preparation offer document are coordinated with the agency general counsel (SAMM C3.5.1.1).
Two exemptions do most of the work. Commercial or financial information given to the government in confidence may be withheld under the fourth exemption, and such material is marked as controlled unclassified information (SAMM C3.5.1.2). Information provided by or produced with a foreign government may be withheld under the third exemption together with 10 U.S.C. 130c (10 U.S.C. 130c).
For a supplier, the practical consequence is that proprietary material submitted into a case has a defined protection and a defined marking, and both depend on it having been handled correctly at the point of submission. How a case is assembled is set out in how a case is built, and the supplier's position in it in how American companies supply the program.
| Technical data | Information required to design, produce, operate, repair or modify a defense article. 22 CFR 120.33. |
|---|---|
| TDP | Technical data package, released for operations and maintenance or for study and production. |
| TAA | Technical assistance agreement, not required for basic operation and maintenance training. 22 CFR 124.2. |
| Depot level | The maintenance tier above intermediate, which requires a specific license or agreement. |
| Revisioning | A service providing updates to a package after transfer has been approved. |
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.
Data releases decide what a partner can maintain in country, and therefore what has to be supported from outside it. Sentfore provides secure movement, protective security, facilities and life support around defense programs in difficult environments, and its principals have worked on overseas defense and security programs. Requirements can be sent through the contact page.