The regulations governing the CFIUS review process are codified at chapter VIII of title 31 of the Code of Federal Regulations.
31 C.F.R. Part 800
The regulations at 31 C.F.R. part 800 were adopted after the 1988 enactment of section 721 of the Defense Production Act. They were amended by the final rule published at 73 Fed. Reg. 70702 (Nov. 21, 2008), which implemented provisions of the Foreign Investment and National Security Act of 2007 (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 the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA) that became effective immediately upon FIRRMA’s enactment.
On January 13, 2020, the Department of the Treasury released regulations amending part 800 to implement changes that FIRRMA made to CFIUS’s jurisdiction and process with respect to transactions that could result in foreign control of any U.S. business, as well as certain non-controlling “covered investments” that afford a foreign person certain access, rights, or involvement in certain types of U.S. businesses. The changes become effective on February 13, 2020.
- Provisions Pertaining to Certain Investments in the United States by Foreign Persons (31 C.F.R. part 800)
31 C.F.R. Part 802
On January 13, 2020, the Department of the Treasury also released regulations establishing a new part 802 to implement CFIUS’s new authorities, provided under FIRRMA, with respect to certain real estate transactions 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)
31 C.F.R. Part 801
As authorized by FIRRMA, CFIUS published regulations at 31 C.F.R. part 801 for the conduct of a pilot program related to critical technology, which became effective on November 10, 2018 and remain in effect through February 12, 2020.