By: Anna Barone and Scott Gearity
The universe of defense articles and defense services subject to the International Traffic in Arms Regulations (ITAR) consists predominantly of unclassified items. But some defense articles are also classified. If your organization deals with classified defense articles or defense services, you should familiarize yourself with a specific licensing form – the DSP-85.
DSP-85s are for transactions involving classified defense articles, including technical data. DSP-85s have an option for all export and import transactions – permanent export, temporary export and temporary import – as requested in Block 3 of the form. Only one type of transaction can be requested per form. This is distinct from the more common unclassified licensing forms, in which a unique application is used for each transaction type: permanent exports (DSP-5), temporary exports (DSP-73), and temporary imports (DSP-61). Like other ITAR licensing forms, the DSP-85 application is completed in the Defense Export Control and Compliance System (DECCS) portal.
To complete a DSP-85, the applicant should refer to contextual help within the DECCS licensing application, which largely mirrors instructions on the DDTC website. Here are some additional tips, derived in part from DDTC’s published guidance:
Facility Security Clearance Code (FSC)
For each entry that requires the identification of an entity – domestic or foreign – the FSC or foreign country equivalent must be provided if that entity will have access, title, custody or control of the defense articles. This information is not required for foreign governments but must be provided for non-government entities.
If an entity has not received a FSC, the phrase “Application Pending” may be entered. However the applicant must notify the assigned Licensing Officer of the code information once received. If the information is not received when the application is ready for final review it will be considered for Return Without Action.
If the FSC is not identified for a required entity, a letter of explanation must be provided by the applicant requesting an exception.
Defense Security Service (DSS)
Block 23 requires the identification of the cognizant DSS office for all U.S. entities identified on the license application. If multiple U.S. entities are identified, each DSS entry should identify which U.S. entity it relates to. Embassies are not covered by a specific DSS office so the information entered may be the cognizant U.S. military service for the subject defense articles.
Country of Ultimate Destination
Block 4 requires the applicant to identify the country of ultimate destination (permanent export) or temporary sojourn (temporary export). For the permanent export of defense articles, only one country can be identified. For temporary exports, multiple countries can be identified. The country(ies) identified in Block 4 must match the information provided in Block 18.
Block 5 relates to temporary import applications only and requires the applicant to identify the country from which the subject defense articles have been imported. The country to which the subject defense articles will be shipped or returned must be identified in Block 4 as the country of final destination.
Block 12 of the license application requires the identification of the subject defense articles. The accepted classification terms are: TS for Top Secret, S for Secret, C for Confidential, U for Unclassified and R for Restricted. Restricted is only used by foreign governments. If Restricted is identified, then the initials FGI (Foreign Government Information) and the classifying country must be entered after Restricted.
Any submission of classified information must comply with the marking and packaging requirements of the National Industrial Security Procedures and Operating Manual (NISPOM). Do not include or even refer to classified information in the DECCS DSP-85 form itself, but do tick the box on the DECCS start page for the application to indicate the classified information is being sent under separate cover.
Support documents for the DSP-85 are generally similar to those for corresponding unclassified application types. For a permanent export, that would mean verification of purchase (e.g. a purchase order), a statement specifying the end-use/user, and possibly a positive Part 130 statement, DSP-83 Non-Transfer and Use Certificate, or letter of explanation as appropriate.
In another departure from unclassified licensing, there is no DSP-85-specific amendment form. To amend an approved DSP-85, DDTC has advised that the applicant must submit an entirely new DSP-85, accompanied by a transmittal letter explaining the desired amendment.
Visit www.learnexportcompliance.com to learn about our company, our faculty, our staff and our esteemed Export Compliance Professional (ECoP®) certification program. To find upcoming e-seminars, live seminars and live webinars and browse our catalog of 80-plus on-demand webinars, visit our ECTI Academy. You can also call the Export Compliance Training Institute at 540-433-3977 for more information.
Scott Gearity is President of ECTI, Inc.