Security Implementing Arrangement for Operations between the Minister of Defence of
the Kingdom of the Netherlands and the Department of Defense of the United States
1. Purpose
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a) The following procedures have been developed by the Department of Defense of the United
States (DoD) and the Minister of Defence of the Kingdom of the Netherlands (MODNL),
hereinafter referred to as “the Participants”; to implement the provisions of the
General Security Agreement (GSA) between the Government of the United States and the
Government of the Kingdom of the Netherlands, entered into on August 18, 1960, as
amended, and replaces the Security Procedures for Industrial Operations between the
Ministry of Defence of the Kingdom of the Netherlands and the Department of Defense
of the United States, dated April 9, 1982. That Agreement provides for the safeguarding
of all classified information exchanged between the Governments. This Implementing
Arrangement (hereinafter referred to as “Arrangement”) will apply to those cases in
which contracts, subcontracts, pre-contract negotiations or other government approved
Arrangements involving classified information of the Participants, are placed or entered
into by or on behalf of the MODNL in the United States (U.S.) or by or on behalf of
the DoD in the Kingdom of the Netherlands (NL).
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b) Within the framework of their national legislation, each Participant will take all
appropriate measures to ensure the protection of classified information or materiel
provided pursuant to this Arrangement.
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c) "The U.S. DoD hereby designates the Director, International Security Programs Directorate,
Office of the Deputy Under Secretary of Defense (Technology Security Policy and Counterproliferation)
as its Designated Security Authority (DSA) to provide policy oversight concerning
the provisions of this Arrangement. For the NL MOD the DSA is the Director of the
Defence Intelligence and Security Service (DDISS).
2. Definitions
The definitions of the GSA are outdated; The following definitions will therefore
be used for the purpose of this Arrangement:
Classified Contract: A contract that requires, or will require, access to classified information by a
contractor or by its employees in the performance of a contract.
Classified Information: Official information which has been determined to require, in the interests of national
security of the owning or releasing government, protection against unauthorized disclosure
and which has been so designated by the appropriate classification authority. This
embraces classified information in any form, be it oral, visual, electronic, documentary
or in the form of materiel.
Cognizant Security Office (CSO): The Government office or offices designated to administer industrial security in
a Contractor's facility on behalf of the DSA.
Contract: A legally enforceable Arrangement to provide goods or services.
Contractor: An individual or a commercial or other entity that agrees to provide goods or services.
Designated Government Representative (DGR): A person appointed to represent the sending or receiving Participant in making or
authorizing a government-to-government transfer of classified information.
Designated Security Authority (DSA): The government authority responsible for the security of classified information covered
by this Arrangement.
Document: Any letter, note, minute, report, memorandum, message, sketch, photograph, film,
map, chart, plan, notebook, stencil, carbon, typewriter ribbon, diskette, magnetic
tape, or any other form of recorded information.
Facility Security Clearance Assurance (FSCA): A certification provided by a Participant's DSA or CSO for a contractor facility
under its territorial jurisdiction which indicates that the facility is security cleared
to a specified level and also has suitable security safeguards in place at a specified
level to safeguard classified information. The FSCA also signifies that classified
information CONFIDENTIAL or above will be protected by the contractor on which the
FSCA is provided in accordance with the provisions of this Arrangement and that compliance
will be monitored and enforced by the responsible DSA or CSO. NOTE: A FSCA is not required for a contractor to carry out contracts that require the receipt
or production of classified information at the DEPARTEMENTAAL-VERTROUWELIJK (Departmental
Confidential) level.
Government-to-government transfer: The principle that classified information and materiel CONFIDENTIAL and above will
be transferred through official government-to-government channels or through other
channels as may be jointly decided, in writing, by the Participants.
Materiel: Any document product or substance on or in which information may be recorded or embodied.
Materiel will encompass everything regardless of its physical character or makeup
including documents, writing, hardware, equipment, machinery, apparatus, devices,
models, photographs, recordings, reproductions, notes, sketches, plans, prototypes,
designs, configurations, maps and letters, as well as all other products, substances
or materiel from which information can be derived.
Need to know: A determination made by an authorized holder of classified information that a prospective
recipient requires access to specific classified information in order to perform or
assist in a lawful and authorized governmental function.
Participant: In the NL Participant refers to the Ministry of Defence (including the Chief of Defence
Staff, the Navy, Army, Air Force and Military Police Departments, the Defence lnterservice
Command and other Defence Agencies). In the U.S. Participant refers to the Department
of Defense, Department of Defense agencies and the Departments of the Army, Navy,
and Air Force.
Personnel Security Clearance Assurance (PSCA):
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a) In the case of an individual who is employed by a government agency or contractor
facility under the jurisdiction of a DSA or CSO, a certification provided by that
DSA or CSO concerning the level of personnel security clearance held by the individual.
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b) In the case of an individual who is a citizen of the country of one Participant but
is to be employed by the other Participant or its contractors, a statement provided
by the DSA or CSO of the individual's country of citizenship concerning the individual's
eligibility for a personnel security clearance at a level specified by the requesting
Participant.
Receiving Participant: The Participant to which classified information is transferred.
Sending Participant: The Participant that transfers classified information to the receiving Participant.
3. Restrictions on use and disclosure of exchanged classified information
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a) Unless express prior written consent is given to the contrary, the receiving Participant
will not disclose or use, or permit the disclosure or use of, any classified information
except for the purposes and within any limitations stated by the sending Participant.
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b) The receiving Participant will not pass or disclose to a government official, contractor;
contractor's employee or to any other person holding the citizenship of any third
country, or to any international organization, any classified information CONFIDENTIAL
or above, supplied under the provisions of the General Security Agreement and/or this
Arrangement, nor publicly disclose any classified information without the prior written
consent of the sending Participant.
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c) Nothing in this Arrangement will be taken as an authority for, or to govern the release,
use, exchange or disclosure of information in which intellectual property rights exist,
until the specific written authorization of the owner of these rights has first been
obtained. The sending Participant will advise the requesting Participant of any intellectual
property rights attached to any classified information provided to or exchanged with
the receiving participant.
4. Protection of classified information
Upon receipt of classified information furnished under this Arrangement, the receiving
Participant will carry out to afford the information a degree of security protection
at least equivalent to that afforded to the information by the sending Participant.
The receiving Participant will be responsible for information so received while it
is within the territorial jurisdiction of its government and while it is possessed
by or furnished to persons authorized to visit abroad pursuant to this Arrangement.
In the NL, the DDISS of the MOD is the CSO and the DSA. In the U.S., the Defense Security
Service (DSS) is the CSO. These organizations will assume responsibility for ensuring
the administration of security measures for contracts involving classified information
CONFIDENTIAL or above awarded to industry for performance in their respective countries.
NL DEPARTEMENTAAL-VERTROUWELIJK will be protected in the U.S. in accordance with the
provisions of Appendix A.
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a)
Access. Access to classified information CONFIDENTIAL or above will be limited to those persons
who have a need to know and have been security cleared by either of the Participants
in accordance with its national laws and regulations to the level at least equal to
the classification of the information to be accessed.
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b)
Inspection/security review. The CSOs, as identified above, will ensure that periodic industrial security inspections/security
reviews are made of each contractor facility that is located and incorporated to do
business within their country and engaged in the performance of, or in negotiations
for, a classified contract.
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c)
Security costs. Costs incurred in conducting security inspections/security reviews will be borne
by the Participant rendering the service. Costs incurred by either of the two Participants
through implementation of other security measures, including costs incurred through
the use of the diplomatic courier service or any other authorized official courier
service, will not be reimbursed. There will be provisions in classified contracts
for security costs to be incurred under the contract, such as special costs for packing,
transport and the like, which will be borne by the Participant for whom the service
is required under the contract. If, subsequent to the date of the contract, the security
classification or security requirements under the contract are changed, and the security
costs or time required for delivery under the contract are thereby increased or decreased,
the contract price, delivery schedule, or both, and any other provisions of the contract
that may be affected will be subject to an equitable adjustment by reason of such
increased or decreased costs. Such equitable adjustments will be accomplished under
the appropriate provisions in the contract governing changes.
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d)
Security clearances. Clearances of contractor facilities and individuals that will possess or be authorized
access to classified information CONFIDENTIAL or above in connection with a classified
contract or potential classified contract will be processed according to the pertinent
regulations of the country having responsibility for administering security measures
for the classified contract.
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e)
Orientation. The CSOs will ensure that contractors or subcontractors having access to classified
information are furnished instructions setting forth their responsibility to protect
the information in accordance with applicable national laws and regulations commensurate
with the provisions of this Arrangement.
5. Transfers of classified information
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a) Classified information CONFIDENTIAL and above will normally be transferred between
the Participants through DGRs using government-to-government channels. Government-to-government
channels are official government channels (e.g. diplomatic courier service, military
courier or military postal service). Other channels that may be established, if jointly
decided in writing by the Participants, will ensure that government accountability
and control is maintained from the point of origin to the ultimate destination. The
CSO for each classified contract will approve the procedures, or inform the contractor
of the channels of transmission to be used, and identify the DGR. Materiel will be
prepared for transmission in accordance with the national security laws and regulations
of the sending Participant.
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b) Classified information CONFIDENTIAL and above that is to be transferred electronically
will be transmitted using secure means that have been approved by each Participant's
communications security authorities.
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c) Classified information at the NL DEPARTEMENTAAL-VERTROUWELIJK level will be transmitted
in the U.S. in accordance with the provisions of Appendix A.
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d) Classified information at the NL DEPARTEMENTAAL-VERTROUWELIJK level may be transmitted
or accessed electronically via a public network like the Internet, using government
or commercial encryption devices jointly accepted by the Participants’ security authorities.
International telephone conversations, video conferencing or facsimile transmissions
containing NL DEPARTEMENTAAL-VERTROUWELIJK information may be in clear text if an
approved encryption system is not available.
6. Public release of information
Public release by a contractor or subcontractor of any classified information CONFIDENTIAL
or above pertaining to a classified contract will in the NL be governed by the Algemene Beveiligingseisen voor Defensieopdrachten (ABDO 2002 and its subsequent amendments) and in the U.S. by the National Industrial Security Program Operating Manual (NISPOM), DoD 5220.22-M. In the case of a NL facility with a U.S. classified contract,
initial prior review and approval will be governed by the ABDO 2002 with final approval
by the appropriate U.S. authority. In the case of an U.S. facility with a NL classified
contract, initial prior review and approval will be governed by the NISPOM with final
approval by DDISS.
7. Marking
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a) The sending Participant will ensure that documents containing classified information
are marked with the appropriate classification markings and pre-fixed with the country
of origin/ownership prior to transfer to the receiving Participant. Upon receipt,
the information will, if required, be marked with the equivalent security classification,
as detailed below. If such information subsequently is included in other documents,
those documents will be marked to identify the sending Participant and the applicable
classification.
Table of Equivalent Security Classification Categories
The Netherlands
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United States
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STG. ZEER GEHEIM
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TOP SECRET
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STG. GEHEIM
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SECRET
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STG. CONFIDENTIEEL
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CONFIDENTIAL
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DEPARTEMENTAAL-VERTROUWELIJK
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No equivalent (See Appendix A)
|
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b) Classified information produced or reproduced by a receiving Participant will be marked
with the assigned classification markings of both countries as provided above. The
markings will be applied in the manner prescribed in the regulations of the country
in which the information is produced or reproduced.
8. Contracts
When a Participant proposes to place, or authorizes a contractor in its country to
place, a contract involving classified information CONFIDENTIAL or above with a contractor
in the country of the other Participant, the Participant that is to place or authorize
the contractor to place such contract will request a FSCA as defined in paragraph
2, where appropriate, from the CSO of the other country. The FSCA will provide governmental
assurance that the security conduct by the cleared contractor will be in accordance
with the applicable national security laws or regulations and be monitored by its
CSO.
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a)
Security Requirements paragraph
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1. The responsible authority of the Participant in the process of negotiating a classified
contract to be performed within the other country, and every contractor in receipt
of a classified contract or in the process of negotiating a classified subcontract
to be performed within the other country, will incorporate in the contract, request
for proposal or subcontract document, appropriate security paragraphs. For such activity
involving classified information CONFIDENTIAL or above the security provisions attached
at Appendix B will be used.
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2. A copy of the relevant portions of the contract, request for proposal or subcontract,
including the security requirements paragraph, will be furnished promptly through
appropriate channels to the CSO where the contract is placed to enable them to furnish
security supervision over the contract.
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3. Contracts placed with U.S. contractors involving classified information at the NL
DEPARTEMENTAAL-VERTROUWELIJK level will identify the measures to be applied for the
protection of the NL DEPARTEMENTAAL-VERTROUWELIJK information.
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c)
Security classification guidance.
The appropriate authority (see 8.a. (1) above) of the contracting government will
furnish the contractor or subcontractor with the security classification guidance
pertaining to each classified aspect related to the contract. In the case of the NL,
this guidance will be set forth in a Security Classification Guide and in the U.S.,
by way of a Contract Security Classification Specification (DD Form 254). The guidance
must identify that classified information which is furnished by the contracting Participant
in connection with the contract, or which is generated pursuant to the classified
contract, is assigned a proper security classification. Two copies of the written
security classification guidance and of the security portions of the classified contract,
or request for proposal, or subcontract containing the security requirements paragraph
will be submitted to the CSO of the Participant which is responsible for administering
security measures.
The addresses of the CSOs are:
The Netherlands
Director of Defence Intelligence and Security Service (DDISS)
Attention: Head Industrial Security Office
Ministry of Defence
P.O. Box 20701
2500 ES The Hague
NETHERLANDS
United States
Defense Security Service
Attention: Deputy Director for Industrial Security
Department of Defense
1340 Braddock Place
Alexandria, Virginia 22314-1651
UNITED STATES OF AMERICA
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c)
Subcontracts.
Unless specifically prohibited in the classified contract, a contractor may subcontract
within its own country in accordance with the security procedures prescribed in its
country for classified subcontracts, and within’ the country of the contracting Participant
under the procedures established by this Arrangement for placing a classified prime
contract in that country, in accordance with the paragraphs set out in Appendix B
to this Arrangement.
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d)
Foreign ownership, control, or influence.
Firms that are determined by national security authorities to be under financial,
administrative, policy or management control of nationals or other entities of a third
Participant country may participate in a contract or subcontract requiring access
to classified information provided by the other Participant only when enforceable
measures are in effect to ensure that nationals or other entities of third participant
countries will not have access to classified information that is provided to or that
is generated therefrom. If enforceable measures are not in effect to preclude access
by nationals or other entities of third participant countries, the permission of the
originating Participant will be obtained prior to permitting such access.
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e)
Corporate Governance.
The MODNL approves to oversee implementation of board resolutions entered into by
NL entities in connection with DoD Special Security Arrangements (SSAs). The MOD also
approves to assist the DoD in addressing alleged violations of the provisions of a
DoD SSA by a NL company. These approvals are predicated on the understanding that
the DoD will oversee compliance with board resolutions/arrangements entered into by
U.S. entities in connection with requirements with the MOD governing foreign ownership,
control or influence of NL entities holding NL security clearances, and that DoD will
assist the MOD in addressing violations of these provisions by U.S. entities.
9. Visits
Requests for approval of visits will be submitted using the procedures in Appendix
C. Approval for visits will be granted only to persons possessing security clearances
at least at the level of the information to which access will be given. Authorization
for visitors to have access to classified information will be limited to those who
have a need to know. Visits to contractor facilities that only involve access to,
or the exchange of information at the unclassified or DEPARTEMENTAAL-VERTROUWELIJK
levels do not require the approval of the Participants and may be arranged directly
between the sending and receiving facilities.
10. Security assurances related to national security clearances of facilities or individuals
of the other country
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a) Each Participant will provide a FSCA or PSCA for facilities or individuals in its
country when requested by the other Participant.
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b) When requested, the Participant receiving the request will determine the security
clearance status of the facility or individual that is the subject of the inquiry
and forward a FSCA or PSCA if the facility or individual is already cleared. If the
facility or individual does not have a security clearance, or the facility or individual
has a clearance that is at a lower security level than that requested, notification
will be sent to the requesting Participant that the FSCA or PSCA cannot be issued
without further consultation. In such cases, further steps may be initiated to conduct
inquiries that are necessary to meet the requirement.
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c) If the Participant receiving the request determines that a facility located and incorporated
to do business in its country is ineligible for a security clearance, the requesting
Participant will be notified.
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d) If either Participant learns of any adverse information about a facility or an individual
for whom it has furnished a FSCA or PSCA, it will notify the other Participant of
the nature of the information and the action it intends to take, or has taken. Either
Participant may request a review of any FSCA or PSCA that has been furnished by the
other Participant, provided that the request is accompanied by a rationale. The requesting
Participant will be notified of the results of the review and any subsequent action.
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e) If either Participant invalidates, suspends or takes action to revoke a personnel
or facility security clearance, the Participant that requested the PSCA or FSCA will
be notified and given the reasons for such an action.
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f) If requested by the other Participant, each Participant will cooperate in reviews
and investigations concerning security clearances.
11. Loss or compromise
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a) In the event of the loss or possible loss of classified information CONFIDENTIAL or
above, or suspicion that such classified information has been compromised, the receiving
Participant will immediately inform the sending Participant.
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b) The receiving Participant will carry out an Immediate investigation with assistance
from the sending Participant, if required, in accordance with the laws and regulations
in the country of the receiving Participant. The receiving Participant will inform
the sending Participant about the circumstances and outcome of the investigation as
soon as possible and the measures adopted to preclude recurrence of the incident.
12. Disputes
This Arrangement does not create any rights or obligations under international law,
nor will it be enforceable by either party under international law. Furthermore, the
Participants jointly decide that they will not attempt to enforce the terms of this
Arrangement in any domestic, third party, or international court or tribunal. Any
disputes or disagreements with regard to interpretation of this Arrangement will be
resolved jointly through mutual discussion, cooperation and decision or by separate
agreement by both Participants.
13. Effective date
This Arrangement to the 1960 General Security Agreement supersedes the Security Procedures
for Industrial Operations between the Ministry of Defence of the Kingdom of the Netherlands
and the Department of Defense of the United States (Industrial Security Annex) dated
9 April 1982, as amended on 23 April 1988, and becomes effective upon the date of
the last signature.
14. Amendment
The provisions of the Arrangement may be amended with the mutual consent in writing
of both Participants.
15. Termination/review
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a) This Arrangement will remain in effect until termination of the 1960 General Security
Agreement or until this Arrangement is terminated by either Participant, giving the
other Participant six months written notification of its intent to terminate the Arrangement.
This Arrangement may also be terminated at any time upon written consent of both Participants.
Both Participants will remain responsible after termination for the safeguarding of
all classified information exchanged under the provisions of the 1960 General Security
Agreement and this Arrangement and any contracts entered into, or generated therefrom,
in accordance with national laws and regulations.
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b) This Arrangement will be reviewed jointly by the Participants no later than ten years
after its effective date.
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c) Any classified information that is exchanged under the cover of this Arrangement will
be safeguarded, even though its transfer may occur following notice by either of the
Participants to terminate.
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d) In the event of termination, solutions to any outstanding problems will be sought
by consultation between the two Participants.