CFIUS Real Estate Instructions (Part 802)

Pursuant to FIRRMA, CFIUS is authorized to review certain transactions involving the purchase or the lease by, or a concession to, a foreign person of certain real estate in the United States, beginning on February 13, 2020. 

Covered Real Estate (31 C.F.R. § Part 802)

Real estate jurisdiction is focused on transactions meeting certain criteria and that are in and/or around specific airports, maritime ports, and military installations. The relevant military installations are listed by name and location in appendix A to the regulations. The relevant airports and maritime ports are on lists published by the Department of Transportation and identified in the regulations.

  • Covered ports.  Relevant lists of airports and maritime ports identified in the regulations are referenced below:
  • Large hub airports. Note:  See file “Enplanements at All Commercial Service Airports (by Rank)” (large hub airports are identified with an “L” under the column heading “Hub.”)
  • All-cargo airports > 1.24 billion pounds.  Note:  See file under "All-Cargo Airports by Landed Weight"
  • Joint use airports
  • Strategic seaports.
  • Top 25 tonnage, container, or dry bulk port.  

  • Military installations listed in Parts 1-3 of Appendix A.  Military installations associated with part 802 are listed in appendix A of the rule.  Installations primarily located onshore are listed in parts 1 through 3 of Appendix A. 

  • Military installations listed in Part 4 of Appendix A.  Military Installations primarily located offshore are listed in part 4 of appendix A.  The Marine Cadastre National Viewer may be a helpful resource (see Military Operating Area Boundaries layer).

 

Real Estate Declarations Submission 

Parties that submit a declaration regarding a real estate transaction to CFIUS must do so in accordance with the procedures outlined in the real estate program regulations at 31 C.F.R. § 802.401.  The declaration must include the information required by the regulations at 31 C.F.R. § 802.402.

This web site 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 real estate program regulations at 31 C.F.R. § part 802 to ensure that a declaration meets all legal requirements for acceptance.  Parties may also contact the Staff Chairperson with questions.

1. PRE-SUBMISSION CONSULTATIONS

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

2. SUBMITTING A DECLARATION TO CFIUS 

The regulations, at 31 C.F.R. § 802.402, specify the required contents of a declaration.   All parties submitting a declaration must do so using the declaration submission form below: 

Individual files submitted electronically must be no larger than five megabytes (5MB) in size to facilitate handling by CFIUS.

3. CFIUS DECLARATIONS TIMETABLE

Upon receipt of a declaration submitted pursuant to 31 C.F.R. § 802.401, 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. § 802.402 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.

Throughout declaration assessment period, parties must respond to requests for information within two 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.

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. § 802.202.  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. § 802.401 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. § 802.202. 

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. § 802.202.  Following are sample certifications:

Real Estate Notice Submission

Parties to a transaction that choose to file notice of the transaction with CFIUS must do so in accordance with the procedures stated in the regulations at 31 C.F.R. § 802.501.  Please refer to the CFIUS Overview page for a summary of the notice submission process.

This website outlines the basic requirements for voluntary notices 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 meets all legal requirements for acceptance.  Parties may also contact the Staff Chairperson with questions.

1.   PRE-NOTICE CONSULTATIONS AND DRAFT NOTICES

CFIUS does not issue advisory opinions as to whether a transaction might raise national security concerns or be considered a covered real estate transaction subject to review.  Parties to a transaction are encouraged to consult with CFIUS in advance of filing a notice and/or to file with CFIUS a draft notice or other appropriate documents describing the transaction.  Such steps both aid the Committee’s understanding of the transaction and provide an opportunity for the Committee to request additional information to be included in the formal notice.  Any such pre-notice consultation should take place, or any draft notice should be provided, at least five (5) business days before the filing of a voluntary notice.  All information and documentary material provided to the Committee as part of pre-notice consultations is accorded confidential treatment pursuant to § 802.802 of the regulations.

2.   FILING A NOTICE WITH CFIUS

All files submitted electronically must be no larger than five megabytes (5MB) in size to facilitate handling by CFIUS. Larger files must be broken down into multiple files of 5MB or less.  Please also provide a hyperlink to any documents over 5MB that are publicly available on the Internet.

Electronic notices should be sent to: realestate.notices@treasury.gov

Hard copy notices are no longer required.

Any mail correspondence notices should be sent to:

Brian Reissaus
Staff Chairperson
Committee on Foreign Investment in the United States
Office of Investment Security
Room 5012
U.S. Department of the Treasury
1500 Pennsylvania Avenue, NW
Washington, DC 20220

Required Contents of a Notice

The regulations, at 31 C.F.R. § 802.502, specify the required contents of a voluntary notice.  

Encryption and File Security

CFIUS supports efforts to help protect the security of sensitive data filed with CFIUS.  File encryption is a useful tool to ensure that sensitive data remains secure.  CFIUS can receive encrypted electronic filings and CFIUS recommends that filers use encryption whenever filing personal identifier information and other sensitive information with CFIUS.  The instructions below explain how to submit encrypted files to CFIUS.  You are responsible for appropriately encrypting your files.

Individual File Encryption: (a) Encrypt the file(s) using a strong password.  CFIUS recommends that passwords contain a minimum of 12 characters and a combination of uppercase, lowercase, numbers, and non-alphanumeric characters.  CFIUS cannot reset or recover lost passwords. You may use the guide for step-by-step instructions on encrypting Microsoft Office and Adobe Acrobat (.pdf) files.  CFIUS can receive encrypted Microsoft Office and Adobe Acrobat (.pdf) files, and may be able to receive other file format encryption as well; please contact CFIUS for more information.  (b) Submit the encrypted file(s) to Realestate.notices@treasury.gov.  (c) Provide the password to the encrypted file(s) to CFIUS either by phone or through the Zix portal (see below).  Passwords should never be sent to CFIUS in an unencrypted email.

Accessing the Zix Portal: (a) Send an email to Realestate.notices@treasury.gov requesting Zix secure email access.  Do not attach any documents or include any sensitive information in this email.  (b) CFIUS sends a response via email which will include instructions on activating and accessing the Zix portal.  You must activate the portal within 15 days.  (c) Once activated, the Zix portal can be used to send encrypted documents to CFIUS.  Entire encrypted filings may be submitted via the Zix portal, or filers may use the Zix portal to submit the password for individual encrypted files submitted directly to Realestate.notices@treasury.gov

3. Notice Timetable

Please see the CFIUS Overview page for a detailed description of the notice process. 

4.   CERTIFICATIONS

Parties to a transaction that file a voluntary notice with CFIUS are required in every case to provide two types of certifications: A certification at the time of filing that covers the contents of the voluntary notice (§ 802.502(h)) and a certification at the conclusion of a review or investigation covering all additional information filed subsequent to the original notice (§ 802.502(l)).

 The final certification will be requested several days before the end of the review or investigation and should be submitted at least one or two days before the anticipated closing date of the review or investigation.  A review or investigation cannot be closed without the certification, and failure to provide a final certification by Day 45 of the review or Day 45 of the investigation is grounds for rejection of the notice.

The requirements for the certifications, including the contents and the person(s) who may sign the certification, are set forth at § 802.202. 

Following are sample certifications: