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CHAPTER 6

 

INTERNATIONAL TRANSFERS

 

A. INTRODUCTION

 

1. After a decision is made to authorize the release of classified material to a foreign government or international organization, the transfer must be through government-to-government channels. The use of other channels may be agreed upon by the sending and receiving governments as described in subsections B.2 and B.3, below.

 

2. DoD Components that execute an FMS sale should contact their transportation and security officials during preparation of the FMS case to determine available transportation options and prepare the necessary transmission instructions or a transportation plan as required. A copy of the instructions or plan must be provided to the Cognizant Security Office (CSO), along with the LOA, when contractors are involved.

 

3. Contractors should contact their CSO at the earliest possible stage in negotiations that will lead to the international transfer of classified material in order that the transfer arrangements can be made in a timely manner. The CSO will advise the contractor on the necessary transfer arrangements and identify the recipient government's designated government representative. The CSO will appoint a U.S. designated government representative, such as the Defense Plant Representative Office (DPRO), or assume that responsibility. The proposed arrangements will be forwarded by the Defense Investigative Service (DIS) for coordination with the security authorities of the recipient foreign government. The CSO will not permit the release of the material until both governments have approved the security arrangements.

 

 

B. POLICY

 

 

1. Government control and accountability of classified material must be maintained until it is officially transferred to the intended recipient government through its designated government representative. This applies whether the material is to be transferred by the DoD or by a defense contractor. To ensure that control is maintained, planning for international transfers should consider government channels as a first priority. Government channels are the military postal system; the military (Defense Courier Service (DCS)), diplomatic (State Department Diplomatic Pouch Service (DPS)), or other official government courier systems, including those of the recipient government; and the Defense Transportation System (DTS). To ensure government accountability, written instructions must be prepared for all transfers of classified material. The instructions must be in the form of a transportation plan, unless transfer occurs using government transportation. In the latter case the applicable government transportation and security regulations, together with other written instructions, must provide the same detailed procedures as a transportation plan. Receipts are to be obtained for material that is classified CONFIDENTIAL or higher.

 

2. The controlling DoD Component for FMS sales, or the DIS for commercial sales, may authorize the international transfer of classified material as commercial freight in compliance with section D., below. In all cases, control and accountability procedures must be established that are commensurate with the requirements of this chapter. The procedures must include the use of a cleared escort and transportation plan as described in subsection D.3., below.

 

3. In urgent situations, the DIS also may authorize appropriately cleared contractor employees to handcarry classified material involved in a specific government contract, agreement or separate program in compliance with section H., below. An urgent situation is one in which government channels are not available, or the use of such channels will result in a delay that will adversely affect performance on a contract, or delay the response to an announced suspense date on a government procurement action to an unacceptable degree, and the DIS CSO confirms that the information is not available at the destination.

 

4. For transfers of classified material that originate at a contractor facility, the CSO or a U.S. designated government representative must verify that the material to be transferred is identical to that which has been authorized for export by a DSP-85 or letter authorization from the licensing authority, or other U.S. Government authorization in compliance with the ITAR (reference c). When requested by the CSO or designated government representative, the contractor must provide documentation that certifies the contents of the shipment. Contractor preparation for international transfers should comply with section I., below.

 

 

C. METHODS OF TRANSFER

 

 

TOP SECRET material must be transferred only by an official U.S. Government courier service, a U.S. Government agency employee designated as a courier, or, electronically over approved COMSEC circuits in compliance with the NISPOM or DoD 5200.1-R (references aa and oo). Other classified material may be transferred internationally as described below.

 

1. Transfers Within the United States, Its Territories or Possessions. Transfers of classified material to a foreign government within the United States, its territories or possessions normally will occur as described below.

 

a. The material may be delivered to an embassy, consulate or other government agency of the recipient government. This method normally will be used for material of such weight and size that it can subsequently be transferred by the recipient government to the ultimate destination by courier or diplomatic pouch. The material must be transmitted to foreign governments as prescribed in the NISPOM or DoD 5200.1-R.

 

b. Material that can be hand carried may be transferred to a designated foreign government courier or escort at a contractor facility or government depot using the procedures at section G., below, that have been approved by the recipient government and by the CSO, for transfers at a contractor facility, or by the responsible DoD security office, for transfers at government depots under a FMS sale.

 

c. When the classified material is of such a size and weight that it must be shipped as freight, and a commercial carrier is to be used, transfer may take place at a recognized U.S. military or commercial port of embarkation (POE) for loading on a ship or aircraft in accordance with subsection E.4., below. A transportation plan is required. This plan must provide for U.S. controlled secure shipment to the POE in compliance with the ISM/NISPOM and provide for secure movement to the ultimate destinations. Arrangements must be made for secure storage at a U.S. Government or cleared commercial facility at or near the POE pending transfer. A designated U.S. person with the requisite clearance must observe the loading of the material on to the ship or aircraft. Transfer of custody to the foreign government's designated government representative or escort must not occur until the material is loaded and the foreign government's designated government representative or escort signs a receipt for the material. In the event the loading and transfer cannot be accomplished promptly, the designated U.S. person must ensure that the material is either returned to the cleared storage facility of the U.S. shipper, or segregated and placed under constant surveillance of a cleared U.S. security force at the POE, or held in the cleared storage facility designated in the transportation plan.

 

2. Transfers Within The Recipient Country. Classified material to be transferred to a foreign government within the recipient country will be addressed to a U.S. designated government representative who will arrange for its transfer to a designated government representative of the recipient government. The outer wrapping or cover of the package must be addressed to the in-country U.S. designated government representative; the inner wrapping must be addressed to the foreign government designated representative. If a courier or escort is used who is not a U.S. Government official (i.e., a cleared contractor employee), the material must be delivered to a pre-arranged U.S. designated government representative who will complete the transfer. If the courier or escort is a U.S. Government official authorized to accomplish the transfer directly, he or she may deliver the material directly to the recipient government's designated government representative upon arrival. Transfer of classified material as freight will be in compliance with Section E., below.

 

3. Delivery Within A Third Country. Classified material to be transferred to a foreign government's designated government representative within a third country must be sent through official U.S. Government channels or be delivered by a designated courier or escort to an agency or installation of the United States, or the recipient government, that has extraterritorial status or otherwise is exempt from the jurisdiction of the third country. The material will be addressed as described in Subsection 2., above. If the material is not accompanied by a U.S. Government official authorized to accomplish the transfer of custody, a U.S. designated government representative must receive the shipment and be vested with authority to deliver it to the intended recipient government's designated government representative. Transfers of classified freight normally will not be permitted in a third country.

 

 

D. U.S. GOVERNMENT TRANSPORTATION SYSTEMS

 

 

1. Defense Courier Service (DCS). The DCS was activated on 1 October 1987. It replaced the Armed Forces Courier Service (ARFCOS). The DCS is the principal means of providing for the secure transportation and control of qualified material requiring handling by courier. The DCS will transport qualified material to or via those locations outside the United States where a Status of Forces Agreement (SOFA) or similar agreement exists that provides protection from search and seizure by customs or other unauthorized officials. DCS transfers material to the Department of State for delivery via diplomatic pouch in foreign countries not having a SOFA or similar agreement. Transportation is by bulk shipments on Air Mobility Command (AMC) flights, military contract flights, commercial (U.S. Flag) aircraft or common surface carrier. DoD Directive 5200.33 (reference ddd) provides a listing of qualified, unqualified and prohibited materials. Normally, no item can weigh over 300 pounds, except for those items for which the physical structure prohibits breakdown into lesser weight units. Requests for exceptions should be submitted to Headquarters, Defense Courier Service, Fort George G. Meade, Maryland 20755-5370, ATTN: DO. DoD 5200.33-R (reference eee) describes the registration procedures for DoD Components, Federal Agencies and their authorized contractors.

 

2. Defense Transportation Service

 

a. DTS consists of the U.S. Army's Military Traffic Management Command (MTMC), the U.S. Navy's Military Sealift Command (MSC), and the U.S. Air Force's Air Mobility Command (AMC) which are Components of the U.S. Transportation Command (USTRANSCOM) located at Scott Air Force Base, IL. The Components are the "single manager" agency for their respective areas of responsibility. For example:

 

(1) MTMC is the single manager for military traffic, land transportation, and common-user ocean terminals within the United States and selected overseas locations.

 

(2) MSC is the single manager for sea transportation.

 

(3) AMC is the single manager for air transportation between points in the United States and overseas areas, and between and within overseas areas.

 

b. Shipments of classified FMS material generally are made within DTS or by other U.S. Government-arranged transportation to provide the required security and enable the U.S. Government to maintain control and custody of the material until physical turnover is made. DoD 4500.32-R (reference fff) provides additional information and procedures for obtaining DTS services. The purchaser of classified material through FMS or direct commercial contract may provide its own transportation provided that the transportation plan and security arrangements are approved by the U.S. Government.

 

3. Department Of State Diplomatic Pouch Service. DoD Components may use the DPS to send unclassified For Official Use Only materials and classified material to U.S. diplomatic posts in countries that do not have a Status of Forces Agreement (SOFA) or similar agreement with the United States that would protect the material from search and seizure by customs or other foreign officials. As in the case of the DCS, certain items are prohibited from entering the DPS. See DoD 4525.8-M (reference ggg) for a list of prohibited materials. Classified material should not exceed 40 pounds or exceed 62 inches in length and girth combined, with the longest dimension not greater than 24 inches. Call the Department of State Classified Pouch Branch (202) 647-2936/7 for special preparation and delivery instructions for larger packages. Mark classified items with the appropriate classification level (TOP SECRET, SECRET, CONFIDENTIAL) and any other markings required by DoD 5200.1-R. These are the only DoD classification indicators recognized by the Department of State. It will assume that items not bearing one of those indicators are unclassified. Items marked in a way that only implies they might be classified or administratively controlled (i.e., "By Courier," "NOFORN," etc.) will be rejected. Mark SECRET and CONFIDENTIAL material with a register number and address it in accordance with DoD 4525.8-M. TOP SECRET material shall be sent via the DCS for further delivery to the Department of State. Refer to both DoD 4525.8-M and DoD 5200.33-R for proper procedures for TOP SECRET. Package classified material in accordance with DoD 5200.1-R and the NISPOM.

 

 

E. TRANSFERS OF COMMERCIAL FREIGHT

 

 

1. Foreign Military Sales (FMS). DoD Components that execute an FMS

contract that involves classified material must, at the outset of negotiations, consult with DoD transportation and security officials to determine the appropriate method of secure transfer. Classified material to be furnished to a foreign government or international organization under FMS transactions normally will be shipped via the DTS and be transferred to the foreign government's designated government representative within the recipient government's territory. The DoD Component that executes the sale may permit transfer to a foreign government designated government representative at a U.S. military or commercial POE subject to compliance with subparagraph C.1.c., above, when it is determined that the recipient has its own secure means of shipment (see subsection E.4., below) from the POE to the ultimate destination. In any FMS case, the DoD Component having security cognizance over the classified material involved is responsible, in coordination with the recipient foreign government, for preparing a transportation plan as described in subsection E.3., below. When the point of origin is a U.S. contractor facility, the DoD Component must provide the contractor and its CSO a copy of the transportation plan. If a freight forwarder is to be used in processing the shipment, the freight forwarder and its CSO also must be provided copies of the transportation plan. When the point of origin is a contractor facility, or a freight forwarder is used, the responsible CSOs will verify the adequacy of the transportation plan prior to authorizing release of the shipment. If the plan is not adequate, it will be returned by the CSO to the DoD Component for resolution.

 

2. Commercial Contracts. The contractor must prepare a transportation plan for all U.S. and foreign classified contracts. This requirement applies whether the material is to be moved by land, sea or air. The contractor's CSO will approve the plan and forward it for final coordination and approval by the recipient government.

 

3. Transportation Plan

 

a. A transportation plan must be incorporated in, or appended to, as a contractual requirement, each commercial contract and FMS contract that involves the international transfer of classified material as commercial freight. The transportation plan will describe arrangements for the secure shipment of the material from the point of origin to the ultimate destination. The U.S. and recipient government's designated government representatives must be identified in the plan or, for recurring shipments, in a Notice of Classified Consignment. The plan must provide for security arrangements in the event the transfer cannot be made promptly. The shipment must be accompanied by an appropriately cleared escort. The captain of a ship or aircraft (see subsection 4., below) who is appropriately designated, cleared and briefed on his or her responsibilities, and who is a citizen of the United States or the recipient country, may perform this function. The format and requirements for a Transportation Plan are at Appendix S.

 

b. When repetitive shipments of classified material are necessary, a Notice of Classified Consignment will be used to notify the security officer of the receiving government or industrial facility that a classified shipment is about to take place. A format for this notice also is at Appendix S.

 

4. International Carriers. The international transfer of classified material must be made using only ships, aircraft or other carriers that:

 

a. Are owned or chartered by the U.S. Government or under U.S. registry;

 

b. Are owned or chartered by, or under the registry of the foreign government; or

 

c. Is a carrier other than a., or b., above, when expressly authorized by the senior security official of the cognizant DoD Component, or Director, DIS for commercial sales, and the security authorities of the foreign government involved. This authority will not be delegated and the exception may be authorized only when a carrier described in a., or b., above is not available and/or an urgent operational requirement dictates use of the exception.

 

 

F. RETURN OF MATERIAL FOR REPAIR, MODIFICATION OR MAINTENANCE

 

 

Foreign governments or their contractors may return classified material to a U.S. contractor for repair, modification or maintenance. The approved methods of return must be specified in either the LOA for FMS, the security requirements section of a direct sales contract, or, in the case of material transferred as freight, in the original transportation plan. The contractor, upon receipt of notification that classified material is to be received, must notify its CSO. The CSO will arrange contact with the applicable foreign government security officials and arrange for secure transportation in the United States, if it has not been prearranged.

 

 

G. USE AND CLEARANCE OF FREIGHT FORWARDERS

 

 

1. A commercial freight forwarder that is cleared in compliance with the ISM/NISPOM may be used to arrange for the international transfer of classified material as freight. The freight forwarder may be under contract to a DoD Component or a U.S. contractor or the recipient foreign government. However, the responsibility for security and control of the classified material remains with the U.S. Government until the transfer occurs to a designated government representative of the recipient government.

 

2. Only freight forwarders that have a valid facility security clearance and storage capability at the appropriate level are eligible to receive, process, store and arrange for the delivery of classified material as freight to foreign recipients. However, freight forwarders that do not have custody of classified material do not require and are not eligible for a clearance solely to perform administrative functions.

 

 

H. HAND CARRYING CLASSIFIED MATERIAL

 

 

1. Handcarry By Contractor Employees. In order to meet an urgent need (see subsection B.3., above) to transfer classified material required in support of a U.S. Government or foreign government requirement, contractor employees may be authorized to hand carry classified material in compliance with the procedures in this section. The highest level of classified material to be transferred in this manner will not exceed the SECRET level; the material must have been authorized for export in compliance with Chapter 3 of this handbook; and it must be of such size and weight that the courier can retain it in his or her personal possession (except during approved hold storage) at all times until it is delivered to the foreign government's designated government representative. The CSO will ensure that necessary arrangements have been made with U.S. airport security and customs officials.

 

The CSO also must ensure that security authorities of the receiving government have made similar arrangements in their country. If the transfer is pursuant to a DoD Component contract or a bilateral or multinational program involving a DoD Component, the request must be coordinated in writing with the DoD Component. The CSO must be notified by the contractor of a hand carry requirement at least five work days in advance of the transfer.

 

a. The courier must be a full-time employee of the dispatching contractor. Shipping agents or their employees or independent couriers must not be used. The courier must have a security clearance to at least the level of the classified material.

 

b. The courier shall be provided a Courier Certificate. The courier certificate will be signed by the U.S. designated government representative and the facility security officer (FSO) of the dispatching contractor. Courier Certificates must be consecutively numbered and bear the date of the beginning of the journey and be valid for one journey only. The journey may include more than one stop if approved by the CSO and secure government storage has been arranged at each stop. The Courier Certificate must be returned to the dispatching security officer immediately upon completion of the journey.

 

c. Before commencement of each journey, the courier must read and initial the Notes to the Courier attached to the courier Certificate and sign the courier Declaration. The signed Declaration must be maintained for a minimum of 12 months after completion of the trip. An example of a Courier Certificate is at Appendix J.

 

d. The dispatching security office is responsible for making sure that the courier has his or her personal travel documentation (e.g., passport and visa) and the necessary export authorization and shipping documents and that they are complete, valid and current. The CSO or designated government representative will verify the export authorization.

 

e. The security office of the dispatching contractor must instruct the courier in all of his or her duties and ensure that he or she understands them and completes the Declaration described in subparagraph c., above.

 

f. The material must be inventoried and be wrapped and sealed in compliance with the NISPOM in the presence of the U.S. designated government representative. The address of the receiving security office and the return address of the dispatching security office shall be shown on the inner envelope or wrapping. The address of the receiving government's designated government representative will be shown on the outer envelope or wrapping along with the return address of the dispatching office.

 

g. The dispatching security office must prepare three copies of a receipt based on the inventory, listing the classified material involved. One copy of the receipt must be retained by the dispatching security office and the other two copies must be packed with the classified material. The security office must obtain from the courier a receipt for the sealed package.

 

h. The dispatching security office must provide the receiving security office with advanced notification of the anticipated date and time of the courier's arrival and ask the receiving security office to notify the dispatching security office if the courier does not arrive within eight hours of the expected time of arrival. The dispatching security office must notify its designated government representative of any delay, unless officially notified otherwise of a change to the courier's itinerary. The CSO will ensure that recipient government security officials are notified as described above.

 

i. The receiving security office or designated government representative must sign the receipts enclosed in the consignment. One copy will be returned to the courier. Upon return, the courier will provide the completed receipt to the dispatching security office.

j. Throughout the journey the classified material must remain under the direct personal control of the courier. It will not be left unattended at any time during the journey, in the transport being used, in hotel rooms, in cloakrooms, or any other such locations. Classified material may not be deposited in hotel safes, luggage lockers, or in luggage offices. In addition, envelopes and packages containing classified material must not be opened in route, unless required by customs or other government officials as described below.

 

k. When inspection by government authorities is unavoidable, care will be taken to only show sufficient parts of the contents of the consignment to enable officials to determine that the consignment does not contain any items other than those declared. In cases where the consignment is opened to comply with a request by customs or other government officials, the courier must notify his or her security office as soon as possible. The contractor's security office must notify the U.S. designated representative who will notify the CSO. If the inspecting officials were not of the same country as the dispatching office, the designated security authority in the country whose officials inspected the consignment must also be notified. Under no circumstances must the classified consignment be handed over to customs or other officials for their custody.

 

l. When carrying classified material, the courier or escort must not travel by surface routes through third countries, except as authorized by the CSO. The courier will travel only on carriers described in subsection E.4., above, traveling by direct routes between the United States and the destination.

 

m. Before each used Courier certificate is returned to the issuing designated government representative, the courier must sign the declaration at the bottom of the Courier Certificate certifying that no situation occurred that might have compromised the security of the consignment during the journey. The signing must be witnessed by the FSO.

2. Hand Carry By DoD Employees

 

a. In compliance with DoD 5200.1-R, the head of the DoD Component or a single designee at the headquarters or major command level, must authorize the hand carrying of classified material outside the United States, its Territories and Canada upon certification by the requester that:

 

(1) The material is not present at the destination;

 

(2) The material is needed urgently for a specified official purpose; and

 

(3) There is a specified reason why the material could not be transmitted by other approved means to the destination in sufficient time.

 

b. Commercial travel must be aboard a U.S. Flag carrier.

 

c. The material must be inventoried and properly wrapped prior to departure. A copy of the inventory must be retained by the approving security office; the courier shall be provided a copy.

 

d. The material must remain in the personal possession of the courier at all times during transit. Arrangements must be made for temporary storage at a U.S. Government facility during overnight stops. It must not be stored in hotel safes, airport lockers or other such locations.

 

e. A Principal or Designated Disclosure Authority must have authorized the disclosure of all classified information to be transferred to a foreign national.

 

f. If the material is to be delivered to a U.S. or foreign national recipient, a receipt must be obtained.

 

g. The courier must be provided courier orders and be briefed on his or her responsibilities.

 

h. Classified material must not be read, studied, displayed or used in any manner in public conveyances or places.

 

 

I. CLASSIFIED MATERIAL RECEIPTS

 

 

1. Classified material transferred internationally requires a continuous chain of receipts that record each individual who has custody. Separate external receipts are to be used to record international transfers of all packages containing classified material from the originator to the ultimate foreign recipient. This receipt must be unclassified and contain only such information necessary to identify the package being transmitted. A short title or abbreviation may be substituted for a classified title. A receipt that itemizes the contents of the package will be enclosed in the package. These receipts must be in compliance with DoD 5200.1-R.

2. A copy of the external receipt that records the passing of custody of the package will be retained by the originator and each intermediate consignee in a suspense file until the receipt enclosed in the package is signed and returned. The suspense date for the return of the signed receipt packed with the material must be mutually agreed to by the sending and receiving designated government representatives based on the method of transportation used. Follow-up action must be initiated if the receipt is not returned by the established suspense date. Contractors must retain signed receipts and copies of associated export control documents for six years in compliance with the ITAR. DoD Components must maintain receipts for at least two years.

 

 

J. CONTRACTOR PREPARATIONS FOR INTERNATIONAL TRANSFERS PURSUANT TO COMMERCIAL AND FMS SALES

 

 

1. The contractor should make the following preparations to facilitate international transfers, in addition to those requirements described elsewhere in this section.

 

a. Ensure that each party that will be involved in the transfer is identified in the applicable contract or agreement or related transportation plan or instructions, and in the request for export authorization.

 

b. Notify the appropriate CSO or U.S. designated government representative when the material is ready for shipment.

 

c. Be prepared to certify in writing to the CSO or the U.S. designated government representative that the classified shipment, whether consisting of technical data or defense articles, is within the limitations of the pertinent export authorization or an authorized exemption to the export authorization requirements, or is within the limitations of the pertinent FMS contract.

 

d. Make available to the CSO or designated government representative any supporting documentation required by export control regulations (e.g., the license or letter of authorization, license conditions and provisos, Non-transfer and Use Certificates).

 

e. Make available to the CSO or designated government representative supporting documentation to justify shipments to be made under an exemption to the licensing requirements of the ITAR.

 

f. Have the classified shipment ready for visual review and verification by the CSO or designated government representative. At a minimum this will include:

 

(1) Preparing the packaging materials and address labels for review;

 

(2) Marking the contents with appropriate U.S. classification or equivalent foreign government classification and downgrading and declassification markings, as applicable;

 

(3) Preparing receipts as specified in section H., above; and

 

(4) Ensuring that all shipping documents (including, as appropriate, the Shippers Export Declaration) include the name and telephone number of the CSO or designated government representative that validates the license or letter authorization and the contractor FSO.

 

g. Have sent advance notification of the shipment to the intended recipient government and to the freight forwarder, if applicable. The notification will require that the recipient confirm receipt of the shipment or provide notice to the contractor if the shipment is not received in accordance with the prescribed shipping schedule. Confirmation of receipt of advanced notification is required prior to releasing the shipment.

 

 

K. TRANSFERS OF TECHNICAL DATA PURSUANT TO AN ITAR EXEMPTION

 

 

1. Contractors must provide to the CSO or designated government representative valid documentation (e.g., license, LOA, or agreement) to verify the export authorization for classified technical data to be transferred pursuant to an ITAR exemption.

 

2. Classified technical data to be exported pursuant to ITAR exemption 125.4(b)(1) must be supported by a written authorization signed by a Principal Disclosure Authority or Designated Disclosure Authority of the controlling DoD Component. A copy of the authorization must be provided by the contractor to the ODTC.

 

3. The CSO will not permit the transfer of classified technical data under an exemption in the absence of the documentation described above.