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)

The real estate jurisdiction is focused on transactions meeting certain criteria and that are in and/or around specific airports, maritime ports, or 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 identified in the regulations and contained on lists published by the Department of Transportation.

  • Military installations.  Relevant lists of military installations identified in the regulations are referenced below:
    • 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. 
      • The CFIUS Part 802 Geographic Reference Tool may be a helpful resource to locate specific real estate in relation to these military installations.  This mapping tool allows users to input an address and determine the distance to certain military installations.  This tool was developed to assist the public and is provided for reference only; it should not be interpreted as guidance or an advisory opinion by CFIUS with respect to any particular transaction.
    • 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).
  • Covered ports.  Relevant lists of airports and maritime ports identified in the regulations are referenced below:

 

Real Estate Declarations Submission 

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

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 draft declarations.

2. SUBMITTING A DECLARATION TO CFIUS 

The regulations at 31 C.F.R. § 802.402 specify the required contents of a real estate declaration.  Starting on June 1, 2020, real estate declarations must be submitted through Case Management System portalSee the Case Management System page for more information.

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 requirement sunder 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 another Treasury Department official will advise the parties in writing if CFIUS requires further information or action by the parties.

Throughout the 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 submitting a declaration must provide, via the Case Management System portal, 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 via the Case Management System portal. 

The requirements for the certifications, including the contents and the individual(s) who may sign the certification, are set forth at 31 C.F.R. § 802.202. Sample certifications can be found below:

Real Estate Notice Submission

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

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 that additional information is 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.

2.   FILING A NOTICE WITH CFIUS

Starting on June 1, 2020, all real estate notices must be filed via the Case Management System online portal.  See the Case Management System page for more information.

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.  Note that information submitted to CFIUS through the Case Management System is automatically encrypted.

Individual File Encryption: 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.  Submit the encrypted file(s) through the Case Management System.

3. NOTICE TIMETABLE

The CFIUS Overview page provides 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 through the Case Management System portal at least one or two days before the anticipated closing date of the review or investigation.  A review or investigation cannot close 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 individual(s) who may sign the certification, are set forth at § 802.202. Sample certifications can be found below:

5. FEES

Parties filing a formal written notice of a transaction with the Committee shall pay a filing fee as follows, subject to the provisions of subpart K of 31 C.F.R. part 802:

Transaction Value Range Fee Amount
$0 to $499,999.99   $0
$500,000 to $4,999,999.99   $750
$5,000,000 to $49,999,999.99   $7,500
$50,000,000 to $249,999,999.99   $75,000
$250,000,000 to $749,999,999.99  $150,000
$750,000,000 +  $300,000

 

Payment must be made through Pay.gov and in accordance with the corresponding instructions  See the CFIUS Filing Fees page for more information.

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. 

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.