U.S. Department of the Treasury

In addition to the CFIUS Part 802 Geographic Reference Tool referenced above, information on urbanized areas and urban clusters can be found on the Census Bureau Website, including though a Web-based system, TIGERweb, which allows users to select features such as urbanized areas and urban clusters, and view such attributes on a map.

No, in certain locations, real estate transactions in urbanized areas are within the scope of the regulations.  Specifically, transactions involving real estate that is in “close proximity” (one mile) to a military installation listed in part 1 or part 2 of appendix A to part 802 is covered, as is real estate that is, is located within, or will function as part of a “covered port.”

FIRRMA excludes from CFIUS’s jurisdiction the purchase or lease by, or concession to, a foreign person of a single “housing unit,” as defined by the Census Bureau.  Given that many single housing units are conveyed with adjoining land, the regulations on real estate also exclude any fixtures and adjacent land but only to the extent they are incidental to the intended use of the real estate as a housing unit.  Fixtures and land may be considered incidental if their size and nature is common for similar single housing units in the locality in which the unit is located.  If the incidental fixtures or land is not common for other similar housing units in the locality, the exception would apply only to the housing unit itself.

No.  The regulations on real estate transactions exclude from CFIUS’s jurisdiction under 31 C.F.R. part 802 certain transactions based on characteristics of the foreign person, the transaction, and the real estate.  The regulations include a section on “excepted real estate transactions” and exclude the following, subject to certain conditions:

• real estate transactions involving an excepted real estate investor;
• real estate transactions that are part of a “covered transaction” under the part 800 regulations (though such transaction may separately be subject to CFIUS’ jurisdiction under 31 C.F.R. part 800);
• real estate transactions in an “urbanized area” or “urban cluster,” as defined by the Census Bureau, except those relating to “covered ports” and those in “close proximity” to certain military installations;
• the purchase, lease, or concession of a single “housing unit,” as defined by the Census Bureau;
• the lease or concession of real estate in airports and maritime ports for the purpose of retail sales;
• the lease or concession of real estate in airports and maritime ports involving a foreign air carrier with a security program accepted by the Transportation Security Administration;
• the purchase, lease, or concession of certain commercial space in a multi-unit commercial building; and

transactions involving real estate owned by Alaska Natives or held in trust by the United States for certain native populations.

The CFIUS Part 802 Geographic Reference Tool was developed as a resource to help the public locate specific real estate in relation to the military installations associated with the regulations at 31 C.F.R. part 802 and listed in appendix A (parts 1 to 3) of the rule.  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. 

Note that the mapping tool does not display the offshore areas identified in part 4 of appendix A to 31 C.F.R. part 802.  Further, the tool does not display the covered ports (air and maritime ports) relevant to 31 C.F.R. part 802.  Relevant information on the offshore areas and covered ports are available through other U.S. Government websites.  Additional resources are available on the CFIUS Real Estate webpage.

The regulations on real estate are generally structured around specific sites—certain airports, maritime ports, and military installations—and specific geographic areas in and around those sites.  Other facilities or properties of the U.S. Government may in the future be included in the list of sites identified in the rule.

The pilot program on critical technologies was in effect through February 12, 2020.  It will continue to apply only to transactions for which specified actions were taken on or after the effective date of the pilot program and prior to February 13, 2020.  Generally speaking, transactions involving critical technologies that occurred on or after February 13, 2020 should be analyzed under the regulations for part 800.

The rule published for part 800 incorporates many of the provisions of the pilot program on critical technologies, including the mandatory filing requirement for certain covered transactions involving critical technologies.  The regulations concerning mandatory declarations for certain critical technology transactions were revised effective October 15, 2020.  Transaction parties should review the CFIUS regulations (including the applicability rule at 31 C.F.R. § 800.104) carefully to determine whether a transaction is subject to the mandatory declaration provisions.     

The regulations provide a short-form declaration as an alternative to CFIUS’s traditional voluntary notice.  Declarations allow parties to submit basic information regarding a transaction that should generally not exceed five pages in length.  Parties use the CMS to file declarations with the Department of the Treasury.  In certain circumstances filing a declaration for a transaction is mandatory.

In particular, the regulations implement FIRRMA’s requirement that certain covered transactions where a foreign government is acquiring a “substantial interest” in specified types of U.S. businesses are subject to a mandatory declaration.  Additionally, the regulations require the filing of a declaration for covered transactions involving certain U.S. businesses that produce, design, test, manufacture, fabricate, or develop one or more critical technologies.  Parties may choose to file a notice instead of a declaration.

“Sensitive personal data” is defined to include ten specified categories of data that may be maintained or collected by U.S. businesses.  The categories of data include types of financial, geolocation, and health data, among others.  Moreover, a U.S. business that maintains or collects these categories of data on U.S. citizens will only be considered to have sensitive personal data to the extent it (i) targets or tailors products or services to certain populations, including U.S. military members and employees of federal agencies with national security responsibilities, (ii) collects or maintains such data on at least one million individuals, or (iii) has a demonstrated business objective to maintain or collect such data on greater than one million individuals and such data is an integrated part of the U.S. business’s primary products or services.  Genetic test information is also included in the definition regardless of whether it meets (i), (ii), or (iii).

Yes.  CFIUS retains the authority to review a transaction that could result in foreign control of any U.S. business, regardless of whether the foreign person is an “excepted investor.”  However, transactions involving excepted investors may be exempt from mandatory filing requirements under 31 C.F.R. § 800.401.