CFIUS Pilot Program Instructions (Part 801)

CRITICAL TECHNOLOGY PILOT PROGRAM (31 C.F.R. part 801)

Pursuant to FIRRMA, CFIUS is implementing a pilot program related to critical technology, which became effective on November 10, 2018 and remains in effect through February 12, 2020. Additional information is provided below.

 

Submission Form and Instructions

Starting on June 1, all pilot program declarations must be submitted via the Case Management System online portal. To learn more about the system, see the CFIUS Case Management System page. Parties that submit a declaration regarding a pilot program covered transaction to CFIUS must do so in accordance with the procedures outlined in the pilot program regulations at 31 C.F.R. § 801 The declaration must include the information required by the regulations at 31 C.F.R. § 801.403.

1. Pre-Submission Consultations

CFIUS does not issue advisory opinions as to whether a transaction is a pilot program covered transaction or might raise national security concerns. CFIUS will not accept or review any draft declarations.

2. Submitting a Pilot Program Declaration to CFIUS

The regulations at 31 C.F.R. § 801.403 specify the required contents of a declaration.

For instructions on how to submit pilot program transactions to CFIUS via the Case Management System, please email CFIUS.cms@treasury.gov.

3. CFIUS Declarations Timetable

Upon receipt of a declaration submitted pursuant to 31 C.F.R. § 801.401, the Staff Chairperson will promptly inspect the declaration for completeness. Upon determining that the declaration meets all requirements set forth at 31 C.F.R. § 801.403 and, therefore, is complete, the Staff Chairperson will accept the declaration and circulate the declaration to all CFIUS agencies. Upon accepting a declaration, the Staff Chairperson will promptly notify the parties in writing of the date that the assessment period started. This assessment period ends no later than the 30th day after it has commenced, or if the 30th day is not a business day, no later than the next business day after the 30th day. The Staff Chairperson or other Treasury Department official will advise the parties in writing if CFIUS requires further information or action by the parties.

4. Certifications

Each party to a transaction filing a declaration must provide a certification of the information contained in the declaration consistent with 31 C.F.R. § 800.202 through the Case Management System. The certification must be signed by the chief executive officer or other duly authorized designee of each party to a transaction filing a declaration.

If the Committee notifies the parties to a transaction that have submitted a declaration pursuant to 31 C.F.R. § 801.401 that the Committee intends to conclude all action under section 721 with respect to that transaction, each party that has submitted additional information subsequent to the original declaration must file a certification as described in 31 C.F.R. § 800.202 through the Case Management System.

The requirements for the certifications, including the contents and the person(s) who may sign the certification, are set forth at 31 C.F.R. § 800.202.  Sample certifications can be found below:

 

This website outlines the basic requirements for declarations and other information that may be useful to parties, but does not create any rights for, nor confer any rights on, any person, nor operate to bind the U.S. Government. Parties must consult the pilot program regulations at 31 C.F.R. part 801 to ensure that a declaration meets all legal requirements for acceptance. Parties may also contact the Staff Chairperson with questions.

CONFIDENTIALITY

Section 721 of the Defense Production Act of 1950, as amended, mandates confidentiality protections with respect to information filed with the Committee. It prohibits the Committee from publicly disclosing any information filed with the Committee, subject to limited exceptions. Information and documentary material filed with the Committee are also exempt from disclosure under the Freedom of Information Act, 5 U.S.C. § 552. Consistent with section 721, the Committee does not publicly confirm or deny that a transaction has been notified to CFIUS. If the parties themselves publicly disclose documentary material or information filed with CFIUS, such documentary material or information may subsequently be reflected in the public statements of the Chairperson of CFIUS.