U.S. Department of the Treasury

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.