FAQs

Notices are determined to be incomplete for multiple reasons, commonly including:

• Unclear description of business lines – the notice must provide a clear and detailed account of each company’s products and services;

• Unclear description of the transaction – the notice must clearly describe all entities involved in the transaction and the nature and structure of the transaction;

• Absence of geographic location(s) of the U.S. business – the notice must clearly describe the U.S. business with addresses and/or geographic coordinates for all U.S. properties and facilities; and

• Absence of a certification – all notices must be certified correctly (in accordance with the certification template at the Committee’s section of the Department of the Treasury website and 31 C.F.R. §§ 800.204 or 802.202) to be deemed complete.

Suggestions include:

• Sections 800.502(c)(1)(iii) and (v) require submission of information related to the foreign person and its parents. CFIUS’s review would be aided if the notice identifies whether the actual party in interest is the party to the transaction or one of the parents of the party to the transaction. CFIUS does not consider special purpose vehicles, wholly-owned subsidiaries established for the sole purpose of the transaction, or other shell companies to be the actual parties in interest in a transaction.

• Sections 800.502(c)(3)(iii) and (iv) require information regarding certain U.S. Government contracts. Parties are advised to update and verify U.S. Government contact information for the contracting officials of such contracts. Private sector entities not party to the notice are not acceptable points-of-contact for contracts in question.

Pursuant to the regulations at 31 C.F.R. part 800, a declaration must include a statement as to whether the U.S. business produces, designs, tests, manufactures, fabricates, or develops one or more “critical technologies,” a term defined at 31 C.F.R. § 800.215 to include, inter alia, certain items controlled under the EAR. If applicable, the declaration must also include a description of each such critical technology and the Export Control Classification Numbers (ECCN).

Note that some items may be listed on the Commerce Control List (CCL), but are not critical technologies under the CFIUS definition. While not required, parties may include information about such items as part of the declaration submission. Parties may also state whether the items that the U.S. business produces, designs, tests, manufactures, fabricates, or develops are designated as EAR99. Inclusion of this information may avoid the need for the Committee to pose follow-up questions on these items during the assessment period and may facilitate a more efficient process.

CFIUS has found it very helpful in the past for transaction parties to provide the following additional information, even where the activities are not central to the U.S. business’s commercial operations. If this information is not included in the initial filing, CFIUS often requests it after the notice has been accepted.

• Cyber systems, products, and services: Identify whether the U.S. business that is the subject of the transaction develops or provides cyber systems, products, or services, including business systems used to manage or support common business processes and operations, control systems used to monitor, assess, and control sensitive processes and physical functions, safety, security, support, and other specialty systems, or telecommunications and Internet or similar systems, products, or services.
• Natural resources: Identify whether the U.S. business that is the subject of the transaction processes natural resources and material or produces and transports energy, and the amount processed, produced, or transported annually.
• Supply chain dependencies: Identify whether the U.S. business that is the subject of the transaction manufactures, supplies, or distributes goods, components, or services that that act as inputs or elements in the supply chains of industries such as healthcare, agriculture, semiconductors, aerospace, or defense, even if the business itself is not directly part of those sectors.
• Research and development activities: Identify whether the U.S. business that is the subject of the transaction conducts research, product development, or testing in areas such as artificial intelligence, advanced materials, biotechnology, quantum applications, autonomous systems, or dual-use industrial technologies, even if those activities are pre-commercial or ancillary.

It may also be helpful to include an explanation of the business rationale for the transaction in the notice, as that context can assist CFIUS in understanding the commercial purpose and strategic objectives of the parties. For example, it is helpful for CFIUS to know if there is an existing vendor or customer relationship between the parties or post-transaction plans for operational collaboration.

Lastly, CFIUS’s regulations require parties to provide information regarding any other applicable national security-related regulatory authorities, such as the Directorate of Defense Trade Controls under the ITAR, the Bureau of Industry and Security under the EAR, and the Defense Counterintelligence and Security Agency under the NISPOM. Because review processes under these authorities may have longer timelines than the CFIUS process, parties may wish to start or complete those parallel processes prior to submitting a voluntary notice to CFIUS under Section 721.

Like prior CFIUS legislation, FIRRMA does not single out investors from any specific country. CFIUS’s authorities may be applied to address the national security risks posed by foreign investment in the United States, regardless of where the investment originates. Investors from certain countries may qualify as “excepted investors” based on whether they meet specified criteria in the CFIUS regulations. Meeting these criteria may exempt certain investors from CFIUS jurisdiction over certain transactions, or from mandatory filing

requirements. For further information, refer to the Excepted Foreign States page.

The Department of the Treasury published proposed versions of the regulations in September 2019 and received comments from the public. Treasury made a number of revisions in response to the comments submitted during the comment period. The preambles to the final rules summarize these changes.

In response to written comments, the final rules update a number of provisions including by:

• adding a definition for “principal place of business;”

• modifying certain criteria to qualify as an “excepted investor;”

• clarifying the application of the “incremental acquisition rule;”

• adjusting the treatment of genetic data within the definition of “sensitive personal data;”

• refining the application to investment funds, including by amending the definition of “substantial interest;”

• modifying the exceptions for certain real estate transactions in airports and maritime ports; and

• refining the geographic coverage relating to certain military installations on appendix A to the real estate regulations.

The rules also include a number of additional illustrative examples and provide clarifying edits in the text of the provisions. Finally, the rule amending the part 800 regulations incorporates many of the provisions of the pilot program regarding critical technologies (published in October 2018), including the mandatory declaration requirement for certain covered transactions involving certain U.S. businesses that produce, design, test, manufacture, fabricate, or develop one or more critical technologies. The mandatory declaration requirement for certain critical technology related transactions was further revised by regulations effective October 15, 2020.

CFIUS has identified Australia, Canada, and the United Kingdom as the initial excepted foreign states and excepted real estate foreign states. CFIUS identified these countries due to certain aspects of their robust intelligence-sharing and defense industrial base integration mechanisms with the United States.

In January 2022, CFIUS identified New Zealand as an eligible foreign state for the purposes of the excepted foreign state and excepted real estate foreign state definitions for reasons including New Zealand’s intelligence-sharing relationship with the United States and its collective defense arrangement and cooperation with the United States.

As the excepted foreign state concept has significant implications for the national security of the United States, the Committee continues to identify a limited number of eligible foreign states and may expand the list in the future.

As detailed in the regulations, from February 13, 2020 to February 13, 2023, the countries identified as eligible foreign states are considered “excepted foreign states” and “excepted real estate foreign states” unless the Committee changes a foreign state’s eligibility. For each of these countries to remain excepted after the end of the three-year delayed effectiveness period (i.e., February 13, 2023), a Committee determination under 31 C.F.R. §§ 800.1001(a) or 802.1001(a), as applicable, is necessary. This three-year period is intended to provide these initial eligible foreign states time to ensure that their national security-based foreign investment review processes and coordination with the United States on national security-based investment review meet the requirements under 31 C.F.R. §§ 800.1001(a) and 802.1001(a).

In January 2022, the Committee determined that Australia and Canada have met these requirements. Australia and Canada will remain excepted foreign states and excepted real estate foreign states unless the Committee rescinds a determination.

The regulations provide a short-form declaration as an alternative to CFIUS’s traditional voluntary notice. Declarations allow parties to submit basic information regarding a transaction that should generally not exceed five pages in length. Parties use the CMS to file declarations with the Department of the Treasury. In certain circumstances filing a declaration for a transaction is mandatory.

In particular, the regulations implement FIRRMA’s requirement that certain covered transactions where a foreign government is acquiring a “substantial interest” in specified types of U.S. businesses are subject to a mandatory declaration. Additionally, the regulations require the filing of a declaration for covered transactions involving certain U.S. businesses that produce, design, test, manufacture, fabricate, or develop one or more critical technologies. Parties may choose to file a notice instead of a declaration.

The pilot program on critical technologies was in effect through February 12, 2020. It will continue to apply only to transactions for which specified actions were taken on or after the effective date of the pilot program and prior to February 13, 2020. Generally speaking, transactions involving critical technologies that occurred on or after February 13, 2020 should be analyzed under the regulations for part 800.

The rule published for part 800 incorporates many of the provisions of the pilot program on critical technologies, including the mandatory filing requirement for certain covered transactions involving critical technologies. The regulations concerning mandatory declarations for certain critical technology transactions were revised effective October 15, 2020. Transaction parties should review the CFIUS regulations (including the applicability rule at 31 C.F.R. § 800.104) carefully to determine whether a transaction is subject to the mandatory declaration provisions.

The CFIUS Part 802 Geographic Reference Tool was developed as a resource to help the public locate specific real estate in relation to the military installations associated with the regulations at 31 C.F.R. part 802 and listed in appendix A (parts 1 to 3) of the rule. This mapping tool allows users to input an address and determine the distance to certain military installations. This tool was developed to assist the public and is provided for reference only; it should not be interpreted as guidance or an advisory opinion by CFIUS with respect to any particular transaction.

Note that the mapping tool does not display the offshore areas identified in part 4 of appendix A to 31 C.F.R. part 802. Further, the tool does not display the covered ports (air and maritime ports) relevant to 31 C.F.R. part 802. Relevant information on the offshore areas and covered ports are available through other U.S. Government websites. Additional resources are available on the CFIUS Real Estate webpage.

No. The regulations on real estate transactions exclude from CFIUS’s jurisdiction under 31 C.F.R. part 802 certain transactions based on characteristics of the foreign person, the transaction, and the real estate. The regulations include a section on “excepted real estate transactions” and exclude the following, subject to certain conditions:

• real estate transactions involving an excepted real estate investor;

• real estate transactions that are part of a “covered transaction” under the part 800 regulations (though such transaction may separately be subject to CFIUS’ jurisdiction under 31 C.F.R. part 800);

• real estate transactions in an “urbanized area” or “urban cluster,” as defined by the Census Bureau, except those relating to “covered ports” and those in “close proximity” to certain military installations;

• the purchase, lease, or concession of a single “housing unit,” as defined by the Census Bureau;

• the lease or concession of real estate in airports and maritime ports for the purpose of retail sales;

• the lease or concession of real estate in airports and maritime ports involving a foreign air carrier with a security program accepted by the Transportation Security Administration;

• the purchase, lease, or concession of certain commercial space in a multi-unit commercial building; and

• transactions involving real estate owned by Alaska Natives or held in trust by the United States for certain native populations.

A filing admin is a user on a filing with permission to add or remove other users on the filing. A filing admin may add new users either as additional filing admins or as a non-admin user.

Non-admin users can view all non-restricted uploads and submit the filing but cannot add or remove other users. The initial creator of a submission will always be a filing admin.