CFIUS operates pursuant to section 721 of the Defense Production Act of 1950, as amended (section 721), and as implemented by Executive Order 11858, as amended, and the regulations at chapter VIII of title 31 of the Code of Federal Regulations.
CFIUS legislation, regulations, executive orders, guidance, and other policy documents can be found below.
The authority of the President to suspend or prohibit certain transactions was initially provided by the addition of section 721 to the Defense Production Act of 1950 by a 1988 amendment commonly known as the Exon-Florio amendment. Section 721 was substantially revised by the Foreign Investment and National Security Act of 2007 (FINSA), which became effective October 24, 2007, and the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA), which became effective August 13, 2018. Section 721 of the Defense Production Act of 1950, as amended, is codified at 50 U.S.C. 4565.
- The Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA)
- The Foreign Investment and National Security Act of 2007 (FINSA), Public Law No. 110-49, 121 Stat. 246 (2007).
In Executive Order 11858, as amended, the President directs the Secretary of the Treasury to issue regulations implementing section 721. The regulations governing the CFIUS review process are codified at chapter VIII of title 31 of the Code of Federal Regulations (C.F.R.).
- 31 C.F.R. Part 800. Prior to February 13, 2020, the regulations at 31 C.F.R. part 800 focused on transactions that could result in foreign control of any U.S. business. Effective February 13, 2020, the regulations at 31 C.F.R. part 800 implement changes that FIRRMA made to CFIUS’s jurisdiction and process, including with respect to certain non-controlling “covered investments” that afford a foreign person certain access, rights, or involvement in certain types of U.S. businesses.
- Provisions Pertaining to Certain Investments in the United States by Foreign Persons (31 C.F.R. part 800)
- 31 C.F.R. Part 801. As authorized by FIRRMA, the regulations at 31 C.F.R. part 801 implement a pilot program covering certain transacting involving critical technologies and for which specified actions occurred between November 10, 2018 and February 12, 2020.
- Determination and Temporary Provisions Pertaining to a Pilot Program to Review Certain Transactions Involving Foreign Persons and Critical Technologies (31 C.F.R. part 801)
- 31 C.F.R. Part 802. The regulations at 31 C.F.R. part 802 implement CFIUS’s authorities, provided under FIRRMA, with respect to certain real estate transactions by foreign persons in the United States. The regulations become effective on February 13, 2020.
- Provisions Pertaining to Certain Transactions by Foreign Persons Involving Real Estate in the United States (31 C.F.R. part 802)
- Subpart K to 31 C.F.R. Part 800 and 31 C.F.R. Part 802. Subpart K to 31 C.F.R. part 800 and 31 C.F.R. part 802 establishes filing fees for formal written notices of transactions filed with CFIUS on or after May 1, 2020.
- Interim Rule on Filing Fees for Notices of Certain Foreign Investments in the United States by Foreign Persons and Certain Transactions by Foreign Persons Involving Real Estate in the United States (31 C.F.R. part 800 and 31 C.F.R. part 802)
- Final FIRRMA Regulations – Fact Sheet
- Final FIRRMA Regulations – FAQs
- Final FIRRMA Regulations – Press Release
CFIUS Executive Order
Executive Order 11858, wholly amended by Executive Order 13456 on January 23, 2008, defines the relationship among CFIUS agencies and between CFIUS and the President.
The Department of the Treasury, as CFIUS chair, published Guidance Concerning the National Security Review Conducted by CFIUS in the Federal Register on December 8, 2008.
The guidance describes the purpose and nature of the CFIUS process, how CFIUS analyzes whether a transaction poses national security risks, national security factors identified by FINSA, and the types of transactions that CFIUS has reviewed that have presented national security considerations.
- Guidance Concerning the National Security Review Conducted by CFIUS, 73 Fed. Reg. 74567 (Dec. 8, 2008)
- Summary of Guidance
The documents listed below are provided solely for historical reference.
- Executive Orders. Executive Order 11858 was first issued in 1975 and has been amended several times since then by the executive orders listed below. The version linked above reflects Executive Order 11858 as currently in effect.
- Executive Order 13456 (January 23, 2008)
- Executive Order 13286 (February 28, 2003)
- Executive Order 12860 (September 3, 1993)
- Executive Order 12661 (December 27, 1988)
- Executive Order 11858, as initially issued (May 7, 1975)
- Regulations. The original CFIUS regulations were amended by the final rule published at 73 Fed. Reg. 70702 (Nov. 21, 2008), which implemented provisions of FINSA and became effective on December 22, 2008. The regulations were further amended by the interim rule published at 83 Fed. Reg. 51316 (October 11, 2018), which primarily implemented the provisions of FIRRMA that became effective immediately upon that statute’s enactment.
- 73 Fed. Reg. 70702 (November 21, 2008)
- 83 Fed. Reg. 51316 (October 11, 2018)