The Secretary of the Treasury is the Chairperson of CFIUS, and notices to CFIUS are received, processed, and coordinated at the staff level by the Staff Chairperson of CFIUS, who is the Director of the Office of Investment Review and Investigation in the Department of the Treasury.
The members of CFIUS include the heads of the following departments and offices:
- Department of the Treasury (chair)
- Department of Justice
- Department of Homeland Security
- Department of Commerce
- Department of Defense
- Department of State
- Department of Energy
- Office of the U.S. Trade Representative
- Office of Science & Technology Policy
The following White House offices also observe and, as appropriate, participate in CFIUS’s activities:
- Office of Management & Budget
- Council of Economic Advisors
- National Security Council
- National Economic Council
- Homeland Security Council
The Director of National Intelligence and the Secretary of Labor are non-voting, ex-officio members of CFIUS with roles as defined by statute and regulation.
Declarations provide for an abbreviated or light filing process that could result in shorter review timelines (i.e., a 30-day assessment period). The process remains largely voluntary, where parties may submit a short-form declaration notifying CFIUS of a covered transaction in order to receive a potential “safe harbor” letter (which limits CFIUS from subsequently initiating a review of a transaction except in certain limited circumstances). In some circumstances, filing a declaration for a transaction is mandatory. In particular, under 31 C.F.R. § 800.401, the regulations implement FIRRMA’s mandatory declarations for covered transactions where a foreign government is acquiring a “substantial interest” in certain U.S. businesses and certain covered transactions that involve critical technologies.
- 45-Day Review Period
- 45-Day Investigation Period (as needed)
- 15-Day Presidential Review Period (as needed)
Upon accepting a notice, the Staff Chairperson will advise the parties in writing of the date that the review period started and the latest date on which the review period may end. Similarly, the Staff Chairperson will advise the parties in writing of the outcome of the CFIUS review and, if necessary, investigation.
At any time during the review or investigation period, parties must respond to follow-up requests for information within three business days of the request or within a longer time frame if the parties so request in writing and the Staff Chairperson grants that request in writing.
NOTICE REVIEW PERIOD
Treasury CFIUS staff distributes a filed notice to all CFIUS agencies only after having determined that it meets all requirements set forth at 31 C.F.R. § 800.502 and, accordingly, is complete. The next business day is the first day of the review period. The review period ends no later than the 45th calendar day after it has commenced, or if the 45th day is not a business day, no later than the next business day after the 45th day.
NOTICE INVESTIGATION PERIOD
In certain circumstances described in section 721 of the Defense Production Act of 1950, as amended (section 721), and at 31 C.F.R.§ 800.505 and § 802.505, CFIUS may initiate a subsequent investigation, which must be completed within 45 days, or if the 45th day is not a business day, no later than the next business day after the 45th day.
PRESIDENTIAL REVIEW PERIOD
In certain circumstances described at section 6(c) of Executive Order 11858, as amended, and 31 C.F.R. § 800.508 and § 802.508, CFIUS may also refer a transaction to the President for decision. In such case, section 721(d) requires the President to announce a decision with respect to a transaction within 15 days of CFIUS’s completion of the investigation.
WITHDRAWAL OF NOTICE OR DECLARATION
Under 31 C.F.R. § 800.406 and § 800.509, and § 802.404 and § 802.509, parties to a transaction may request withdrawal of their notice or declaration at any time during the notice review or investigation periods or declaration assessment period. Such a request must be made in writing and is subject to the approval of CFIUS. Such approval may include conditions on the parties, such as requirements that they keep CFIUS informed of the status of the transaction or that they re-file the transaction at a later time. CFIUS tracks withdrawn transactions.
REJECTION OF A NOTICE OR DECLARATION
Under 31 C.F.R. § 800.406 and § 800.504, and § 802.404 and § 802.504, CFIUS may also reject voluntary notices or declarations in certain circumstances, such as when the voluntary notice is not complete, when the parties do not respond to follow-up information requests within the required time frame, when there is a material change in the transaction, or when material information comes to light that contradicts information provided in the notice by the parties.
If CFIUS determines that there are no unresolved national security risks arising as a result of the covered transaction or that other provisions of law provide adequate and appropriate authority to address the risks, then CFIUS will advise the parties in writing that CFIUS has concluded all action under section 721 with respect to the transaction.
If CFIUS determines that a covered transaction presents national security risks and that other provisions of law do not provide adequate authority to address the risks, then CFIUS may enter into an agreement with, or impose conditions on, parties to mitigate such risks or may refer the case to the President for decision.
Any decision by the Committee to suspend a transaction, refer a transaction to the President, or to negotiate, enter into, impose, or enforce any agreement or condition with respect to a transaction is based on a risk-based analysis as described in 31 C.F.R. § 800.102 and § 802.102.
Where CFIUS has completed all action with respect to a covered transaction or the President has announced a decision not to exercise his authority under section 721 with respect to the covered transaction, then the parties receive a “safe harbor” with respect to that transaction, as described in 31 C.F.R. § 800.508(d) and section 7(f) of Executive Order 11858, as amended, subject only to certain circumstances described in 31 C.F.R. § 800.501(c)(1)(ii).
This website outlines the basic requirements for voluntary notices, declarations, and other information that may be useful to parties, but does not create any rights for, or confer any rights on, any person, nor operate to bind the U.S. Government. Parties must consult the regulations to ensure that the notice or declaration meets all legal requirements for acceptance. Parties may also contact the Staff Chairperson with questions.