On May 1, 2025, the Defense Counterintelligence and Security Agency (DCSA) approved a new highly anticipated version of the Certificate Pertaining to Foreign Interests (Standard Form 328 or "SF 328"). The new version became mandatory on May 12, 2025. This form is intended for entities seeking or maintaining a facility security clearance to disclose foreign ownership, control, or influence (also known as FOCI). Detailed instructions on how to respond now accompany the form, intended to streamline the process and ensure more specificity and clarity to filers.
The new form is like the past SF 328, but there are key differences to note when filing. While there are benefits, like clearer questions, more instruction, and more standardized and policy driven definitions; the new form is more expansive and asks for more thorough information (like now asking about endowments). This new form will likely take more time and capacity to complete than the previous form, but there is an upside to this. Asking for a comprehensive review upfront makes it more likely that filers submit everything necessary the first time, streamlining the process. In fact, it was not uncommon for the government to request this information from filers after filing the former form.
Looking more specifically at question comparisons, the most notable change is that now there are 9 instead of 10 questions. The new survey also omits question 8 from the old questionnaire. For an in-depth look at major changes in the questionnaire see our table summary below:
|
Question |
Comparison |
|
Q1 |
The new question combines the old part a. and b. It also lists areas to look at including units, stock, participation interest, and total capital commitment. |
|
Q3 |
The new question asks for foreign persons instead of non-US citizens. The new question also asks for involvement in the filer's organization's management or governing body instead of listing only high-ranking personnel. |
|
Q4 |
The new question is more specific and clarifying in its language. An example is asking the filer to report a foreign person's power to influence elections and other stated activities whether they utilize it or not. |
|
Q5 |
The new question is more expansive, including side letters and grants in addition to what was previously required. |
|
Q7 |
The new question is more expansive as well. Both 7a. and 7b. now ask about tuition, endowments, and gifts in addition to the previously requested information; additionally, 7b. lowers the percentage required from 30% to 15% (broadening the scope of required disclosures). |
|
Q8 |
The new question is similar to the old Question 9. Like the new Question 3, Question 8 just asks any management individual's involvement with foreign persons. The new question also asks whether any management individual is a representative as well. |
|
Q9 |
The new Question 9 is similar to the old Question 10 and functions as a catch all for information not detailed in the rest of the form. The new question is more verbose and specific as well, now asking about any possibility of hurting government contract performance and/or unpermitted access to government information. |
Filers should take careful inventory of any information related to FOCI and review the new form and its changes before filing. Importantly, a DOD instruction states that the new form will also be used in executing Section 847 of the FY29020 National Defense Authorization Act, mandating FOCI reviews for certain unclassified contracts worth more than 5 million.2
Importantly, the new form is now Controlled Unclassified Information upon completion. For questions regarding the new form, do not hesitate to contact the attorneys at Torres Trade Law, PLLC.
Footnotes
1. I would like to thank our Summer Associate, Gowri Nair, for her contributions to this article.
2. Section 847 has not been implemented yet.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
