United States: Treasury Department Issues New CFIUS Regulations Launching FIRRMA Pilot Program, Requiring Declarations For Certain Transactions

On October 10, 2018, the Treasury Department, as chair of the Committee on Foreign Investment in the United States (CFIUS), issued interim regulations implementing certain mandatory review provisions of the Foreign Investment Risk Review Management Act (FIRRMA) enacted in August, and making other conforming amendments to the existing CFIUS regulations in Part 800 of title 31 of the CFR. The interim regulations create a new Part 801 of title 31, establishing a "Pilot program to review certain transactions involving foreign persons and critical technologies," which requires filing of mandatory declarations for certain transactions. This pilot program impacts all qualifying transactions completed after November 10, 2018, unless the material terms of the transaction have already been agreed or certain other limited exceptions apply. This new mandatory filing carries civil penalty exposure for failure to file. It will have a have a significant impact on the CFIUS process for US businesses and the foreign companies seeking to invest in them, and it impacts a wide range of industry sectors and technologies. Importantly, these new mandatory requirements apply in circumstances where traditional control factors are not present—making a careful analysis of new investment transactions essential.

What do the pilot program regulations do?

For new transactions initiated after November 10, 2018, and for ongoing transactions scheduled to close after November 10, 2018 with terms that have not been fully established, mandatory CFIUS filings are required 45 days before closing for covered transactions involving certain US businesses that produce, design, test, manufacture, fabricate or develop a "critical technology."¹ The regulations significantly expand the definition of covered transactions to certain transactions that do not afford control to a foreign person. These regulations implement authorities contained in FIRRMA that authorized CFIUS to accept, and in some instances require, short-form declarations in lieu of or in advance of a full-length notice that participants in transactions currently submit.² The new regulations specify the transactions for which declarations must be filed and establish the process by which declarations must be submitted.³ They also provide for civil monetary penalties if a required notice is not filed.⁴

Key takeaways from the new pilot program rule

Know your business (and the one you're investing in). US businesses and foreign investors must take careful stock of whether their transactions involve a pilot program US business—in other words, one that produces, designs, tests, manufactures, fabricates or develops a "critical technology." To do so requires a thorough understanding of the US business' products, services and technologies, as well as the activities it performs in connection with those products, services and technologies. In addition, the industry sector of the US business is part of this analysis. Equally important to being able to identify whether a US business is covered by the pilot program is being able to understand when a US business is outside the scope of the pilot program.

Losing "control." Foreign investors and US businesses must be aware of the types of transactions that, while not conferring the potential for control of the US business on a foreign person, are now covered transactions under the pilot program.

"Stealth" critical technologies? While the new rule contains a detailed definition of "critical technologies" consistent with FIRRMA, it leaves certain gaps and leaves unresolved questions. First, the rule includes all EAR-controlled technologies that are controlled pursuant to multilateral regimes within the definition. The rule lists several multilateral regime reasons for control as a non-exhaustive list. However, there are controls under multilateral regimes not mentioned in the rule, such as encryption, to which the definition presumably would apply.

In addition, the Export Control Reform Act's (ECRA) provisions relating to identifying emerging and foundational technologies have not yet been implemented, but such technologies are within the definition of "critical technologies." Thus, there continues to be uncertainty regarding how such technologies may be identified in the future.

The return of "specifically designed"? As followers of export control reform know, a centerpiece of that initiative was to replace the catch-all "specifically designed" definitions in the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR) with the more clearly defined catch-and-release mechanism of "specially designed." Having been virtually eradicated from export control regulations (with a few exceptions), the concept has resurfaced in the FIRRMA pilot program. The concept is undefined in the new rules, as it was in the pre-reform United States Munitions List (USML) and Commerce Control List (CCL) categories. As a result, for those US businesses that engage in the specified activities involving a critical technology, but that do not utilize that technology in connection with the business' activities in a pilot program industry, transaction participants will need to assess whether the technology was designed "specifically" for use in such industries, without the benefit of a definition of the term.

Comment period until November 10. Anyone can submit comments on either interim rule until November 10.

When are declarations required and what is the process?

Not all transactions are subject to the new mandatory declarations process. The requirement applies only to "pilot program covered transactions."⁵ A pilot program covered transaction must involve a "pilot program US business" and meet the pilot program's definition of a covered transaction.⁶

What is a pilot program covered US business?

The new regulations do not apply to all transactions—only those that involve US businesses that produce, design, test, manufacture, fabricate or develop a "critical technology." "Critical technologies" is defined, consistent with FIRRMA, to mean defense articles or defense services controlled under the ITAR; certain items controlled under the EAR;⁷ certain nuclear facilities, equipment, parts, components, materials, software and technology controlled under 10 CFR Parts 810 and 110; select agents and toxins; and emerging and foundational technologies controlled under Section 1758 of the ECRA.⁸ US businesses that do not engage in production, design, testing, manufacturing, fabrication or development are not covered by the pilot program, nor are businesses that engage in such activities with non-critical technologies.⁹

In addition, the US business that engages in the specified activities involving a critical technology must either use that technology in connection with its activity in one or more "pilot program industries," or that technology must be designed by the US business specifically for use in one or more pilot program industries.¹⁰ The 27 "pilot program industries" are identified in the Annex to the new rule by North American Industry Classification System (NAICS) code and cover a broad range of businesses, including manufacturers of munitions and space vehicles, aircraft, telecommunications and electronics, broadcasting and wireless communications equipment, computers and semiconductors, batteries, power generation and distribution equipment, optics and lenses, bearings, chemicals, aluminum, and businesses that conduct research and development in biotechnology and nanotechnology. Businesses that are in these industries but that do not engage in the specified activities with critical technologies are not covered by the pilot program.¹¹

Substantially expanded definition of "covered transaction" for pilot program purposes

Historically, a "covered transaction" has included those transactions that could give a foreign person the ability to control the US business.¹² FIRRMA expanded the definition of "covered transaction" to include circumstances that do not necessarily involve control, and the pilot program regulations implement that expanded definition for the first time.¹³

The new regulations implement FIRRMA's coverage of "other investments" for purposes of the pilot program. This expressly includes investments that could afford a foreign person access to material nonpublic technical information of an unaffiliated pilot program US business,¹⁴ that allows the foreign person membership, observer or board appointment rights with respect to the US business, or any involvement in the US business in the substantive decision-making process of the US pilot program business with regard to use, development, acquisition or release of critical technology, regardless of whether the acquiring business has the potential to control the US business.¹⁵ This represents a significant expansion over current definitions of "control," as even a single board seat (or even the appointment rights as to one) or any involvement in certain key management decisions of a covered business would make a transaction "covered." This expands covered foreign investments to include not just ownership or control, but also influence. It also expressly incorporates export control considerations—particularly deemed exports—into the covered transaction calculus.

In addition, consistent with FIRRMA, both the amendments to the existing CFIUS regulations and the new pilot program rule expressly expand the definition of covered transactions to include those that could result in foreign control of a US business via a joint venture.¹⁶

Importantly, the pilot program excludes from coverage certain transactions by investment companies where the foreign involvement occurs via participation in a fund as a limited partner.¹⁷ In such transactions, under specific conditions, a foreign person may serve on the advisory board or committee of the fund, provided the foreign person does not have the ability to control the investment fund or decisions made by the general partner or managing member, and does not have access to material nonpublic technical information.¹⁸

Mandatory declaration procedures

Unless an exception applies, declarations concerning pilot program covered transactions that will close between November 10 and December 25, 2018 (a period of 45 days) must be filed "promptly" after November 10. For pilot program covered transactions that will close after December 25, 2018, a declaration must be filed 45 days before closing.

Certain transactions as to which specified milestones have occurred prior to publication of the interim rule are excepted from the pilot program. These include transactions where, prior to October 11, the parties have entered a binding written agreement as to material terms; a party has made a public offer to buy shares from shareholders in a US pilot program business; or a shareholder has solicited proxies in connection with a board election of a US pilot program business, or has requested the conversion of convertible voting securities.¹⁹ Transactions that close before November 10, 2018 also are not subject to the pilot program requirements.²⁰ Of course, parties to any covered transaction, including one that would be subject to the pilot program after November 10, would be well-advised to evaluate their potential CFIUS risk, irrespective of the November 10 implementation date.

Contents of declaration and submission process

The new rule specifies the information that must be contained in the declaration. FIRRMA envisioned declarations to be short-form notices that would not generally exceed five pages in length.²¹ While the regulations do not contain a page limitation, the Treasury Department has reiterated the five-page guideline.²² Declarations must provide detailed information regarding each foreign party and pilot program US business that is a party to the transaction, including complete ownership information and organizational charts of such parties and related entities.²³ As in a written notice, the submitting party must also provide details regarding the nature and structure of the transaction and interests to be acquired, sources of financing, transaction value, closing date, and background information of the entities involved, including prior CFIUS notifications submitted and contracts with certain US government agencies. While written notices generally require a greater level of detail or the submission of supporting documents—such as copies of annual reports and financial statements, documents evidencing foreign ownership and documents governing the terms of the transaction—declarations require only brief "statements" referencing most of this information.

The declaration must also contain certain items not previously required to be included in a written notice, such as information regarding a foreign party's access to material nonpublic technical information or ability to exercise control and decision-making rights, and regarding critical technologies produced, designed, tested, manufactured, fabricated or developed, in order to enable CFIUS to determine whether the transaction meets the definitions for pilot program covered investments and transactions. Declarations must be submitted electronically in accordance with the instructions on the CFIUS website.²⁴

Review period

Once a pilot program declaration has been submitted, the CFIUS staff chairperson will "promptly" determine whether to accept the declaration before circulating it to CFIUS. During that initial period, the parties will receive written notice that the declaration has been accepted as complete and circulated or, alternatively, that it has not been accepted and why.²⁵ The committee then has 30 days from the date it receives the notice from the staff chairperson in which to conduct its assessment.²⁶

FIRRMA authorized a 10-day expedited review period for notices containing stipulations that the transaction is a covered transaction and, if so, whether it is a foreign government–controlled transaction.²⁷ The pilot program regulations allow such stipulations in connection with declarations and note that they may potetially lead to a faster resolution for the submitting parties, but do not implement any expedited review.

Option for notice as an alternative to a declaration

As an alternative to a declaration, a party to a pilot program covered transaction may choose to submit a full notice, largely in line with existing practice.²⁸ In addition to the existing requirements under 31 CFR Part 800, however, the written notice must contain additional information enabling CFIUS to determine whether the transaction is a pilot program covered transaction, or a stipulation that it is.²⁹

Whether a party should submit a declaration or a notice will likely depend largely on the complexity and type of transaction involved and the timing of the transaction. There are other considerations to note as well. First, a pilot program declaration will not afford parties the benefits of the limited safe harbor at 31 CFR § 800.204(e), which excludes from the scope of covered transactions certain transactions in which a foreign person acquires an additional interest in a US business that was previously the subject of a concluded CFIUS review.³⁰ Depending on the circumstances, the shorter 30-day review period for pilot program declarations, as opposed to 45 days for written notices, may not afford the parties significant benefits, particularly considering that there is no express time period within which the CFIUS staff chairperson must determine whether to accept a declaration or notice. Declarations are not suitable as a placeholder in a situation where the material terms of a transaction have not yet been agreed upon; the interim rule makes clear that parties may not submit more than one declaration for the same or a substantially similar transaction without approval from the CFIUS staff chairperson.³¹

CFIUS action following submission

In its review of the declaration, CFIUS will examine whether the transaction constitutes a pilot program covered transaction, and if so, whether it could result in foreign government control over a pilot program US business or could permit a foreign person to exercise control or rights that threaten to impair US national security.³² The committee may require additional information or invite the parties to attend a meeting regarding the transaction.³³ Notably, the submitting party must provide follow-up information requested by CFIUS within two business days of the request (absent approval of a longer time period); if the party fails to do so, CFIUS may reject the declaration.³⁴ Declarations may also be rejected for failing to include all required content, or where a material change in the transaction or contradictory information is revealed.³⁵ CFIUS may request or recommend that a declaration be withdrawn and refiled only for the purpose of correcting material errors or omissions (i.e., not as a means of managing its docket).³⁶

At the close of the review, CFIUS will either (1) request submission of a complete written notice consistent with the pilot program notice rules in Part 801, (2) inform the parties that it was unable to complete its review on the basis of the declaration and that the parties may file a complete written notice under Part 800 to seek a notification that it has concluded all action with respect to the transaction, (3) initiate a unilateral review or (4) notify the parties that it has concluded all action with respect to the transaction, allowing it to proceed without further investigation.³⁷

Penalties

Failure to comply with the new mandatory declaration requirements exposes a party to a civil penalty up to the value of the covered transaction.³⁸ In addition, any member agency of CFIUS may commence a review of any transaction believed to be a pilot program covered transaction that may raise national security considerations but for which no declaration or notice was filed.³⁹

Conforming amendments to Part 800

The changes to Part 800 apply, effective immediately, to all covered transactions. Notable changes include:

• The definition of transactions that may be "covered transactions" has been expanded—although the scope remains narrower than the definition under the pilot program. The revised definition expressly acknowledges (as in the pilot program) that joint ventures can be a way for a foreign person to gain control of a US business. Long-term leases that allow the lessee to make substantially all business decisions concerning the operation of the leased entity may also now be covered transactions. In addition, changes in rights of a foreign person that could result in foreign control are expressly covered transactions. Finally, transactions designed or intended to evade or circumvent the application of foreign investment rules are defined as covered transactions. However, "other investments" that do not allow potential control are not yet included in Part 800's definition of covered transactions.
• The new rule incorporates into the regulations certain provisions of FIRRMA that were already effective upon enactment. For instance, the rule changes the duration of the review period from 30 to 45 days following CFIUS' acceptance of a written notice as complete, although this change occurred when FIRRMA was enacted. It also allows for CFIUS to extend, "in extraordinary circumstances," an investigation for one 15-day period. In addition, the regulations now contain FIRRMA's requirement that voluntary notices include a copy of partnership agreements, integration agreements or other side agreements.
• The new rule now allows for stipulations, as authorized under FIRRMA, that a transaction is a covered transaction and, if applicable, is a foreign government–controlled transaction. As with the rule for pilot program transactions, this rule also does not provide the accelerated period contemplated in FIRRMA in which CFIUS must accept a voluntary notice as complete or provide comments to the parties where such a stipulation is submitted.

Footnotes

1. 31 CFR § 801.401

2. FIRRMA § 1706

3. 31 CFR §§ 801.401-403

4. 31 CFR § 801.409

5. 31 CFR § 801.210

6. 31 CFR §§ 801.209-210

7. Specifically, critical technologies include EAR-controlled items under multilateral regimes (expressly including national security, chemical and biological weapons proliferation, nuclear nonproliferation or missile technology), or for reasons relating to regional stability (RS) or surreptitious listening (SL). EAR-controlled items subject to unilateral controls other than RS or SL (such as certain items controlled only for anti-terrorism reasons) do not appear to fall within this definition.

8. 31 CFR § 801.213

9. See, e.g., 31 CFR § 801.303(a)

10. 31 CFR § 801.213

11. 31 CFR § 801.303(a)

12. 31 CFR § 800.207

13. FIRRMA § 1703(a)(4)

14. For the FIRRMA pilot program, non-control "other investments" are covered transactions only where they involve unaffiliated pilot program US businesses. That means that the foreign person does not directly hold more than 50 percent of the voting interest or have the right to appoint more than half of the board of the business. 31 CFR § 801.214

15. 31 CFR § 801.209

16. 31 CFR § 801.210

17. 31 CFR § 801.304

18. In order for this exclusion of certain participation by foreign persons in investment funds to apply, the fund in which the foreign person participates must be controlled by a general partner, managing member or the equivalent, who is not the foreign person. In addition, the advisory board on which the foreign person sits must not have the ability to exercise positive or negative control over the fund's investment decisions, or decisions of the general partner or managing member. Nor may the foreign person have the ability to exercise such control directly, or to exercise unilateral positive or negative control over the appointment, dismissal or compensation of the general partner, managing member or equivalent. 31 CFR § 801.304

19. 31 CFR § 801.103(b)

20. 31 CFR § 801.401(c)

21. FIRRMA § 1706

22. See https://home.treasury.gov/system/files/206/Fact-Sheet-FIRRMA-Pilot-Program.pdf

23. 31 CFR § 801.403

24. 31 CFR § 801.402; see also https://home.treasury.gov/policy-issues/international/the-committee-on-foreign-investment-in-the-united-states-cfius

25. 31 CFR § 801.404(a)

26. 31 CFR §§ 801.404(b); 801.407(b)

27. FIRRMA § 1704

28. 31 CFR §§ 801.401(b); 801.501

29. 31 CFR § 801.503(a)-(b)

30. 31 CFR §§ 801.401(d); 801.502(b)

31. 31 CFR § 801.406(e)

32. 31 CFR § 801.405(a)

33. 31 CFR § 801.405(a)-(b)

34. 31 CFR § 801.406(3)

35. 31 CFR § 801.406(a)(1)-(2)

36. 31 CFR § 801.406(c)-(d)

37. 31 CFR § 801.407

38. 31 CFR § 801.409

39. 31 CFR § 801.504

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