Other than the Inside Director position(s), there can be no other interlocking relationships. However, under the Special Security Agreement (SSA), the foreign shareholder can appoint a representative(s) (referred to in the SSA as the "Inside Director") to the company's board of directors consistent with the requirements of the board composition identified in Article 1.01 of the DCSA draft SSA. There can be no interlocking relationships under the Proxy Agreement (PA) and Voting Trust Agreement (VTA). (NISPOM, paragraph 2-104)Ĭan officers and/or directors of the foreign parent organization or one of its affiliates also serve as an officer and/or director of the cleared company? Non-US citizens are not eligible for a personnel security clearance. Key Management Personnel are required to be processed for a personnel security clearance in conjunction with the FCL.
Ownership or control, in whole or in part, by a foreign government.Ĭan non-US citizens serve as key management personnel at the company?. Nature of bilateral and multilateral security and information exchange agreements, and. Record of compliance with pertinent US laws, regulations and contracts,. Type and sensitivity of information requiring protection,. Record of enforcement and/or engagement in unauthorized technology transfer,. Record of economic and government espionage against US targets,. What criterion is used in determining if a company is under FOCI? The NISPOM requires that a SF 328 be submitted during the initial facility clearance process and when significant changes occur to information previously forwarded. How often should a company submit the SF 328? (The SF 328 and instructions can be found here). This principle applies equally to changed condition reports. (Note: this would not preclude a subordinate entity from preparing the form as long as the top tier cleared entity certified the form). In the case of an organization with multiple tiers of parent-subsidiary relationships, the SF 328 should be certified by the highest tier cleared entity. In a corporate family, the SF 328 should be a consolidated response rather than separate submissions from individual members of the corporate family (NISPOM, paragraph 2-302). The company's FOCI factors should be documented on the Certificate Pertaining to Foreign Interests (Standard Form 328). How do you determine if a company is under FOCI?Ī company's FOCI factors are reviewed as part of the facility clearance process and throughout the life of the facility security clearance. A company determined to be under FOCI is not eligible for an FCL until the FOCI factors have been favorably resolved. (NISPOM, paragraph 2-300a)Ĭan a company obtain a facility security clearance (FCL) if found to be under FOCI? Please direct all correspondence related to NIDs to the National Interest Determination e-mailbox: is a company determined to be under foreign ownership, control or influence (FOCI)?Ī US company is considered to be under FOCI when a foreign interest has the power, direct or indirect, whether or not exercised, to direct or decide matters affecting the management or operations of the company in a manner which may result in unauthorized access to classified information or may affect adversely the performance of classified contracts. #LAST PERSON EXECUTED FOR ESPIONAGE IN THE US CODE#
Please send inquiries concerning negotiating a FOCI Agreement, implementing a FOCI Agreement, or general FOCI agreement questions, to the FOCI Operations Division Mailbox: include your company's name and CAGE code if they are already under a FOCI Agreement. Ownership or control, in whole or in part, by a foreign government.The nature of any bilateral and multilateral security and information exchange agreements that may pertain.Record of compliance with pertinent U.S.
The type and sensitivity of the information that shall be accessed. Record of enforcement and/or engagement in unauthorized technology transfer. Record of economic and government espionage against U.S. The following factors relating to a company, the foreign interest, and the government of the foreign interest are reviewed in the aggregate in determining whether a company is under FOCI: Government to allow foreign investment consistent with the national security interest of the United States.Ī company is considered to be operating under FOCI whenever a foreign interest has the power, direct or indirect, whether or not exercised, and whether or not exercisable, to direct or decide matters affecting the management or operations of that company in a manner which may result in unauthorized access to classified information or may adversely affect the performance of classified contracts. Foreign Ownership, Control or Influence (FOCI)įoreign investment can play an important role in maintaining the vitality of the U.S.
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