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Are We All Clear? Facilitating Security Clearances

Are We All Clear? Facilitating Security Clearances

by Holland & Knight

Education Government

Navigating the Updated SF-328 Form

In the 22nd episode of "Are We All Clear? Facilitating Security Clearances," host Marina O'Brien is joined by Washington, D.C., International Trade attorney Andrew McAllister to help break down the Defense Counterintelligence and Security Agency's (DCSA) changes to the Standard Form 328 (SF-328), also known as the Certificate Pertaining to Foreign Interest. Mr. McAllister explains that the main goals of the updates are to reduce processing timelines by placing an emphasis on more thorough submissions as well as align with the expanded efforts to assess and mitigate foreign ownership, control or influence (FOCI) following the implementation of Section 847 of the National Defense Authorization Act (NDAA). One of the most significant changes to the document is in Question B, where the threshold of foreign revenue has been lowered from 30 percent to 15 percent, which will qualify a much higher number of companies. Importantly, Mr. McAllister clarifies that listeners who have previously submitted documents should not be alarmed — if you submitted or signed an SF-328 form prior to May 12, 2025, the old form is acceptable — but moving forward, any new actions must be conducted using the new form.

A Comparative Guide to Obtaining an FCL: DCSA vs. the Intelligence Community

In this episode of "Are We All Clear? Facilitating Security Clearances," host Marina O'Brien talks with Robert A. Friedman, co-head of Holland & Knight's International Trade practice and a leader of the firm's National Security & Defense Industry Group, about intelligence community (IC) security clearances. They discuss how IC clearances differ from the processes used by the U.S. Department of Defense (DOD) and Defense Counterintelligence and Security Agency (DCSA), highlighting that IC clearances are contract-specific, often less prescriptive and can vary depending on the assigned contracting officer. In addition, both use similar documentation and focus heavily on foreign ownership, control or influence (FOCI) analysis, but IC tends to be more cautious with foreign investors outside U.S. allies. Mr. Friedman recommends companies be as transparent as possible and seek legal counsel when filling out clearance applications and also reminds the listeners that there is a newly updated SF-328 form that requires more detailed information and diligence in the clearance process.

The "I" in FOCI and AI: Innovation, Intelligence, Influence

In the 20th episode of "Are We All Clear? Facilitating Security Clearances," host Molly O'Casey is joined by John Metz, a product manager at Agile Defense, and Antonia Tzinova, the head of Holland & Knight's CFIUS and Industrial Security Team. The trio discusses the impact of artificial intelligence (AI) in the industrial security space and its potential to help companies mitigate risks of Foreign Ownership, Control or Influence (FOCI), insider threats and cybersecurity challenges. Mr. Metz touches on some helpful aspects of AI, such as automated red teaming, supply chain risk management and identifying potential intellectual property (IP) theft. However, he also clarifies that there are more dangerous uses of this technology, in particular deepfakes and autonomous malware development. Overall, the group agrees that AI needs to continue being used and developed and emphasizes that it should be viewed as a tool instead of a human replacement.

What Are Joint Ventures and When Should They Get Cleared?

In this episode of "Are We All Clear? Facilitating Security Clearances," host Molly O'Casey speaks with Washington, D.C., International Trade attorney Andrew McAllister about joint ventures and how they interact with facility security clearances (FCL's). Mr. McAllister reviews the different types of joint ventures and breaks down the eligibility requirements for obtaining an FCL. He clarifies that not every joint venture needs a facility security clearance and covers various factors to help companies determine whether they should pursue the application process. Finally, Mr. McAllister points out common issues joint ventures face when seeking clearance, such as lack of visibility, foreign ownership, control or influence (FOCI), and administrative burdens.

Reflecting on Careers in National Security Law

In the latest episode of "Are We All Clear? Facilitating Security Clearances," guest host Marina O'Brien talks to fellow Holland & Knight International Trade Associates Molly O'Casey and Caroline Howard about their roles as national security lawyers. They discuss their individual career paths and what inspired them to join the field as well as what prepared them for it. They also highlight the importance of their job and how passionate they are about safeguarding essential American infrastructure from foreign threats, adding this responsibility comes with many challenges, such as navigating complex regulations, compliance processes and protecting classified information. The three attorneys concur that there is no best route to enter this area of practice as long as you are willing to work hard and continually learn.

Navigating Regulatory Challenges in M&A Transactions

In the 17th episode of "Are We All Clear? Facilitating Security Clearances," host Molly O'Casey is joined by Antonia Tzinova, the head of Holland & Knight's Committee on Foreign Investment in the United States (CFIUS) and Industrial Security Team, to identify and analyze the many government entities that play a part in regulating mergers and acquisitions (M&A) that raise national security concerns. In addition to Foreign Ownership, Control or Influence (FOCI) mitigation and CFIUS review, Ms. O'Casey and Ms. Tzinova discuss the rules and responsibilities related to the Directorate of Defense Trade Controls (DDTC), Hart-Scott-Rodino Act (HSR) and Bureau of Economic Analysis (BEA). Both attorneys stress the importance of accurate and timely filings to avoid potential consequences such as loss of export privileges and financial penalties. Adherence to these procedures will protect businesses and enhance national security. Although this field is undoubtedly complex, their concluding advice for companies navigating these regulatory landscapes is simple: "Get help, get it early."

Analyzing the Overlap Between CFIUS and FOCI

In this episode of "Are We All Clear? Facilitating Security Clearances," host Molly O'Casey discusses the intersection of the Committee on Foreign Investment in the United States (CFIUS) and Foreign Ownership, Control, and Influence (FOCI) mitigation with Libby Bloxom, a fellow member of Holland & Knight's International Trade Group. They highlight the importance of understanding both CFIUS actions and FOCI requirements, as they can overlap and inform one another, particularly regarding national security measures in critical industries. They also note that companies should be proactive in navigating the regulations and timelines of the multiple agencies involved in security clearances.

A Comprehensive Overview of FOCI Mitigation

In Episode 15 of "Are We All Clear? Facilitating Security Clearances," host Molly O'Casey and members of Holland & Knight's International Trade Group discuss the complexities of Foreign Ownership, Control or Influence (FOCI) and its implications for security clearances in government contracting. They explain how foreign entities can influence cleared companies, impacting classified contracts, and detail the Defense Counterintelligence and Security Agency's (DCSA) role in overseeing FOCI assessments through the SF-328 form. Mitigation strategies such as proxy agreements and outside directors are highlighted to ensure compliance and safeguard national security. The episode also revisits Section 847 from the 2020 National Defense Authorization Act (NDAA), which mandates FOCI assessments for non-classified U.S. Department of Defense (DOD) contracts valued at $5 million or more and represents a significant expansion of FOCI regulations. This discussion reinforces the need for companies to effectively navigate these complexities while utilizing supplemental documents like Affiliated Operations Plans and Technology Control Plans to maintain compliance.

Mitigating FOCI Under Section 847

In the latest episode of "Are We All Clear?", host Molly O'Casey and national security attorney Antonia Tzinova discuss Section 847 of the National Defense Authorization Act (NDAA), aimed at mitigating Foreign Ownership, Control or Influence (FOCI) in companies associated with non-classified U.S. Department of Defense (DOD) contracts worth at least $5 million. This regulation, prompted by national security concerns and supply chain vulnerabilities highlighted during the pandemic, sets the groundwork for the DOD to assess risks and ensure that foreign influence does not compromise critical defense operations. As noted in the episode, although mitigation measures will remain optional, companies bidding for federal contracts must engage in rigorous due diligence and are encouraged to familiarize themselves with these new requirements during the anticipated 12- to 18-month implementation period.

Staying Compliant When Sharing Employees or Services

In this episode of "Are We All Clear? Facilitating Security Clearances," host Molly O'Casey discusses how cleared companies follow guidelines and compliance when sharing employees or services with International Trade attorney Marina O'Brien. This episode also covers how the Defense Counterintelligence and Security Agency (DCSA) monitors cleared companies for potential foreign ownership, control, or influence (FOCI) issues, what Affiliate Operations Plans (AOPs) entail, and how beneficial it might be for a company to comply with DCSA regulations.

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