Foreign government information and treaty transfers

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1. Contracts awarded by foreign interests

The National Industrial Security Program Operating Manual (NISPOM), 32 CFR part 117, covers foreign government information (FGI) held by U.S. contractors. A contractor notifies the cognizant security agency (CSA) when a foreign interest awards it a contract involving access to classified information (32 CFR 117.19(c)(1)). The CSA oversees the contract’s security requirements on the foreign government’s behalf, including channels for transferring classified material.

The foreign entity that awards the contract provides the classification guidance and any security requirements clauses (32 CFR 117.19(c)(2)). The contractor reports to the CSA if the foreign entity fails to provide guidance. Marking follows the marking section’s rules for foreign government classified material, RESTRICTED and “in confidence” information, U.S. documents containing FGI and documents prepared for foreign governments (32 CFR 117.19(c)(3) to 32 CFR 117.19(c)(6)).

Under those marking rules, foreign government classified information keeps its original markings or gets a U.S. classification giving at least equivalent protection (32 CFR 117.14(l)). The U.S. equivalent and the country of origin are marked in English on the front and back (32 CFR 117.14(l)). In many cases, agreements call for a foreign government’s RESTRICTED material to get the same handling as CONFIDENTIAL material in the United States (32 CFR 117.14(m)(1)). A U.S. document that includes FGI keeps at least the highest foreign classification it contains, and declassifying it needs the originating government’s written approval (32 CFR 117.14(n)(3)).

2. Storing and using FGI

Contractors store and control access to foreign government material generally as they would U.S. classified material of an equivalent level (32 CFR 117.19(c)(7)). It is stored separately from other material, for example in distinct files in a container or on an information system.

FGI is provided by the foreign government to the United States (32 CFR 117.19(c)(8)(i)). Contractors do not disclose it to nationals of a third country or any other third party, or use it for any other purpose, without the originating government’s prior written consent. Requests for other uses or further disclosure go to the government contracting activity (GCA) for U.S. contracts, and through the CSA for direct commercial contracts. The foreign government’s approval does not remove the need for an export authorization (32 CFR 117.19(c)(8)(ii)).

3. Transfer, reproduction and disposition

Within the United States and its territories, FGI moves through the same channels as U.S. classified information of equivalent level, except that non-cleared express overnight carriers may not be used (32 CFR 117.19(c)(9)). Reproducing foreign TOP SECRET or equivalent information needs the originating government’s written approval (32 CFR 117.19(c)(10)).

FGI is destroyed on completion of the contract unless the contract authorizes retention or return to the GCA or the foreign government (32 CFR 117.19(c)(11)(i)). Destruction of TOP SECRET is witnessed, and a destruction certificate is executed and kept for two years (32 CFR 117.19(c)(11)(ii)). Subcontracting follows the subcontracting section (32 CFR 117.19(c)(13)). Under that section, some FGI subcontracts need consent. A subcontract may not go to a contractor in a third country, or to a U.S. entity with a limited clearance based on third-country foreign ownership, without the originating government’s express written consent (32 CFR 117.17(a)(3)(iv)(B)). Improper receipt of foreign government material is reported under the reporting section, which requires a report to the CSA of classified material from foreign interests not received through government channels (32 CFR 117.8(c)(13) and 32 CFR 117.19(c)(12)).

4. The defense trade cooperation treaties

Exemptions in the International Traffic in Arms Regulations (ITAR) at sections 126.16 and 126.17 implement the U.S.-U.K. and U.S.-Australia Defense Trade Cooperation Treaties (32 CFR 117.19(i)(1)). The treaties provide a framework for exports and transfers of certain classified and unclassified defense articles to the United Kingdom or Australia without a license or other written authorization (32 CFR 117.19(i)(1)(i)). Supplement No. 1 to ITAR part 126 lists the articles and services not eligible (32 CFR 117.19(i)(1)(ii)). The exemption applies to contractors registered with the Directorate of Defense Trade Controls and eligible to export defense articles (32 CFR 117.19(i)(1)(iii)).

Defense articles fall within the treaties when they support combined military or counter-terrorism operations, or joint security and defense programs covering research, development, production and support (32 CFR 117.19(i)(2)). They also fall within them for mutually agreed security and defense projects where the U.K. or Australian government is the end-user, and for U.S. Government end-use.

5. Marking, notice and labeling

Contractors mark treaty-scope defense articles before transfer, in addition to standard classification markings (32 CFR 117.19(i)(3)). Classified articles carry the classification level with USML, for U.S. Munitions List, and a release marking to the U.K. or Australia and USA treaty community. Unclassified articles carry a RESTRICTED-USML release marking. When such articles return to the United States, a RESTRICTED marking applied only for treaty purposes is treated as unclassified and removed.

A notice, for example in the bill of lading, accompanies every treaty export (32 CFR 117.19(i)(4)). It states that the articles are authorized for export only to the treaty partner for approved projects, programs or operations, and may not be retransferred, re-exported or used outside them without prior written Department of State approval. Articles are individually labeled or, where impracticable, accompanied by documentation linking them to the markings (32 CFR 117.19(i)(5)). Technical data in any medium is labeled the same way, and defense services are accompanied by labeled documentation.

6. Transfers and records

Treaty-scope articles move from the U.S. point of embarkation through channels both governments have approved (32 CFR 117.19(i)(6)). Freight transfers need a transportation plan, and a freight forwarder handling classified articles must have a valid eligibility determination and storage capability. Forwarders of unclassified articles need not be cleared.

Contractors keep records of treaty exports, transfers, re-exports and re-transfers for at least five years and make them available to the CSA (32 CFR 117.19(i)(7)). Records include the port, date and time, method, commodity code and description, value, treaty justification, end-user or end-use, and all parties. They also cover how the export was marked, its classification, correspondence with the government, and any political contributions, fees or commissions. Purchase orders, technical data exported, the export filing transaction number, shipping documents and the registration statement complete the list. Disclosure rules for U.S. information are covered in disclosing classified information to foreign interests.

Key terms

FGI	Foreign government information provided to the United States.
Third-party disclosure	Release beyond the originating government’s consent.
Treaty community	The approved community for U.K. or Australian treaty transfers.
Treaty notice	The statement accompanying every treaty export.
Five-year records	The record retention period for treaty transfers.

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.

How Sentfore supports this

Partner nation information requires the same care as U.S. information. Sentfore works at the delivery end of defense programs in difficult environments, providing secure movement, protective security, facilities and life support. Requirements can be sent through the contact page.