White & Case CFIUS FIRRMA Tool

Clicking "I Accept" means than you agree to the Terms and Conditions and Cookie Statement, and that you further acknowledge that the White & Case CFIUS FIRRMA Tool is meant for informational purposes only and does not constitute legal advice or a legal opinion. Information in the White & Case CFIUS FIRRMA Tool cannot be relied upon when assessing potential Committee on Foreign Investment in the United States (CFIUS) filing obligations or compliance with law. White & Case LLP is not responsible for the information users obtain using this tool and is not liable for users relying on information in this tool. This tool is based upon regulations and guidance provided by CFIUS and remains subject to change based on regulatory changes and further guidance from CFIUS.

 

To obtain legal advice and specific analysis regarding CFIUS-related issues pertaining to contemplated transactions, please contact one of our CFIUS specialists:

Farhad Jalinous

Farhad Jalinous
Partner, Washington, DC
+1 202 626 3691
[email protected]

Karalyn Mildorf

Karalyn Mildorf
Partner, Washington, DC
+1 202 626 6489
[email protected]

Keith Schomig

Keith Schomig
Counsel, Washington, DC
+1 202 729 2330
[email protected]

Does the transaction involve a US business?

Yes

No

 

What is a "US business"?

The term US business means any entity, irrespective of the nationality of the persons that control it, engaged in interstate commerce in the United States.

The term entity means any branch, partnership, group or sub-group, association, estate, trust, corporation or division of a corporation, or organization (whether or not organized under the laws of any State or foreign state); assets (whether or not organized as a separate legal entity) operated by any one of the foregoing as a business undertaking in a particular location or for particular products or services; and any government (including a foreign national or subnational government, the US Government, a subnational government within the United States, and any of their respective departments, agencies, or instrumentalities).

Is the transaction any of the following?

(a) A merger, acquisition, or takeover, including: (1) the acquisition of an ownership interest in an entity; (2) the acquisition of proxies from holders of a voting interest in an entity; (3) a merger or consolidation; (4) the formation of a joint venture; or (5) a long-term lease or concession arrangement under which a lessee (or equivalent) makes substantially all business decisions concerning the operation of a leased entity (or equivalent), as if it were the owner;

(b) an investment; or

(c) the conversion of a contingent equity interest.

Yes

No

 

What is an "investment"?

The term investment means the acquisition of equity interest, including contingent equity interest.

Are one or more investors/acquirers a foreign person?

Yes

No

 

What is a "foreign person"?

The term foreign person means:

  • Any foreign national, foreign government, or foreign entity; or
  • Any entity over which control is exercised or exercisable by a foreign national, foreign government, or foreign entity.

Any entity over which control is exercised or exercisable by a foreign person is a foreign person.

Is the US business involved in critical technologies, critical infrastructure, or sensitive personal data?

Yes

No

 

What are "critical technologies"?

The term critical technologies means the following:

 

What is "critical infrastructure"?

The term critical infrastructure means, in the context of a particular covered control transaction, systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems or assets would have a debilitating impact on national security. Under FIRRMA, CFIUS’s jurisdiction over covered investments in "critical infrastructure" is limited to a subset of critical infrastructure (referred to in the regulations as "covered investment critical infrastructure") that is likely to be of particular importance to US national security. These include:

  • telecoms: certain internet protocol networks, telecommunications and information services, internet exchange points, submarine cable systems and related facilities (including certain data centers);
  • power: certain systems for the generation, transmission, distribution, or storage of electric energy comprising the bulk-power system, industrial control systems utilized therefor, and certain electric storage resources physically connected to the bulk-power system;
  • oil and gas: certain refineries, crude oil storage facilities, liquid natural gas (LNG) import or export terminals, natural gas underground storage facilities or LNG peak-shaving facilities, interstate oil and natural gas pipelines, and industrial control systems therefor;
  • water: certain public water systems and treatment works, and industrial control systems therefor;
  • finance: certain systemically important financial market utilities, securities and options exchanges, and core processing services providers;
  • defense industrial base: fiber optic cables that directly serve certain military installations; facilities that provide electric power generation, transmission, distribution, or storage directly to or located on certain military installations and industrial control systems therefor; public water systems or treatment works directly serving certain military installations and industrial control systems therefor; interstate oil pipelines that directly serve the strategic petroleum reserve; rail lines and associated connector lines designated as part of the Department of Defense's (DOD) Strategic Rail Corridor Network; satellites or satellite systems providing services directly to DOD and its components; facilities in the United States that manufacture certain specialty metals, covered materials, chemical weapons antidotes, and carbon, alloy, and armor steel plate; and – other than commercially available off-the-shelf items – certain industrial resources manufactured or operated for a Major Defense Acquisition Program, Major System, or "DX" priority-rated contract or order, or funded by the Title III program, Industrial Base Fund, Rapid Innovation Fund, Manufacturing Technology Program, Defense Logistics Agency (DLA) Warstopper Program, or a DLA Surge and Sustainment contract; and
  • ports: airports and maritime ports that are subject to CFIUS's new real estate jurisdiction.

 

What is "sensitive personal data"?

The provisions defining sensitive personal data, listed below, are complex. To proceed through this analysis step by step, select "Yes" as your answer for now, and in the next step select "Sensitive Personal Data."

(a) The term sensitive personal data means, except as provided in paragraph (b) of this section:

(1) Identifiable data that is:

(i) Maintained or collected by a US business that:

(A) Targets or tailors products or services to any US executive branch agency or military department with intelligence, national security, or homeland security responsibilities, or to personnel and contractors thereof;

(B) Has maintained or collected any identifiable data within one or more categories described in paragraph (a)(1)(ii) of this section on greater than one million individuals at any point over the twelve (12) months preceding the earliest of the completion date, the date of any of the events described in § 800.104(b)(2) through (4) (as applicable), or the date of filing of a written notice or submission of a declaration, unless the US business can demonstrate that at the time of the completion date of the transaction it had or will have neither the capability to maintain nor the capability to collect any identifiable data within one or more categories described in paragraph (a)(1)(ii) of this section on greater than one million individuals; or

(C) Has a demonstrated business objective to maintain or collect any identifiable data within one or more categories described in paragraph (a)(1)(ii) of this section on greater than one million individuals and such data is an integrated part of the US business's primary products or services; and

(ii) Within any of the following categories:

(A) Financial data that could be used to analyze or determine an individual's financial distress or hardship;

(B) The set of data in a consumer report, as defined under 15 USC 1681a, unless such data is obtained from a consumer reporting agency for one or more purposes identified in 15 USC 1681b(a) and such data is not substantially similar to the full contents of a consumer file as defined under 15 USC 1681a;

(C) The set of data in an application for health insurance, long-term care insurance, professional liability insurance, mortgage insurance, or life insurance;

(D) Data relating to the physical, mental, or psychological health condition of an individual;

(E) Non-public electronic communications, including email, messaging, or chat communications, between or among users of a US business's products or services if a primary purpose of such product or service is to facilitate third-party user communications;

(F) Geolocation data collected using positioning systems, cell phone towers, or WiFi access points such as via a mobile application, vehicle GPS, other onboard mapping tool, or wearable electronic device;

(G) Biometric enrollment data including facial, voice, retina/iris, and palm/fingerprint templates;

(H) Data stored and processed for generating a state or federal government identification card;

(I) Data concerning US Government personnel security clearance status; or

(J) The set of data in an application for a US Government personnel security clearance or an application for employment in a position of public trust; and

(2) The results of an individual's genetic tests, including any related genetic sequencing data, whenever such results constitute identifiable data. Such results shall not include data derived from databases maintained by the US Government and routinely provided to private parties for purposes of research. For purposes of this paragraph, "genetic test" shall have the meaning provided in 42 USC 300gg-91(d)(17).

(b) The term sensitive personal data shall not include, regardless of the applicability of the criteria described in paragraph (a) of this section:

(1) Data maintained or collected by a US business concerning the employees of that US business, unless the data pertains to employees of US Government contractors who hold US Government personnel security clearances; or

(2) Data that is a matter of public record, such as court records or other government records that are generally available to the public.

In which of the following is the US business involved?

 

What are "critical technologies"?

The term critical technologies means the following:

 

What is "critical infrastructure"?

The term critical infrastructure means, in the context of a particular covered control transaction, systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems or assets would have a debilitating impact on national security. Under FIRRMA, CFIUS’s jurisdiction over covered investments in "critical infrastructure" is limited to a subset of critical infrastructure (referred to in the regulations as "covered investment critical infrastructure") that is likely to be of particular importance to US national security. These include:

  • telecoms: certain internet protocol networks, telecommunications and information services, internet exchange points, submarine cable systems and related facilities (including certain data centers);
  • power: certain systems for the generation, transmission, distribution, or storage of electric energy comprising the bulk-power system, industrial control systems utilized therefor, and certain electric storage resources physically connected to the bulk-power system;
  • oil and gas: certain refineries, crude oil storage facilities, liquid natural gas (LNG) import or export terminals, natural gas underground storage facilities or LNG peak-shaving facilities, interstate oil and natural gas pipelines, and industrial control systems therefor;
  • water: certain public water systems and treatment works, and industrial control systems therefor;
  • finance: certain systemically important financial market utilities, securities and options exchanges, and core processing services providers;
  • defense industrial base: fiber optic cables that directly serve certain military installations; facilities that provide electric power generation, transmission, distribution, or storage directly to or located on certain military installations and industrial control systems therefor; public water systems or treatment works directly serving certain military installations and industrial control systems therefor; interstate oil pipelines that directly serve the strategic petroleum reserve; rail lines and associated connector lines designated as part of the Department of Defense's (DOD) Strategic Rail Corridor Network; satellites or satellite systems providing services directly to DOD and its components; facilities in the United States that manufacture certain specialty metals, covered materials, chemical weapons antidotes, and carbon, alloy, and armor steel plate; and – other than commercially available off-the-shelf items – certain industrial resources manufactured or operated for a Major Defense Acquisition Program, Major System, or "DX" priority-rated contract or order, or funded by the Title III program, Industrial Base Fund, Rapid Innovation Fund, Manufacturing Technology Program, Defense Logistics Agency (DLA) Warstopper Program, or a DLA Surge and Sustainment contract; and
  • ports: airports and maritime ports that are subject to CFIUS's new real estate jurisdiction.

Does the US business produce, design, test, manufacture, fabricate, or develop one or more critical technologies?

Yes

No

 

What are "critical technologies"?

The term critical technologies means the following:

Does the US business own or operate any of the assets listed below?

Yes

No

 

Does the US business manufacture (i.e., produce or reproduce) any of the assets below?

Yes

No

 

Does the US business service (i.e., repair, maintain, refurbish, replace, overhaul, or update) any of the assets listed below?

Yes

No

 

Does the US business provide third-party physical or cyber security for any of the assets listed below?

Yes

No

 

  • any submarine cable, landing facility, or facility that performs network management, monitoring, maintenance, or other operational function that is part of a submarine cable system requiring a license under section 1 of the Cable Landing License Act of 1921 (47 USC 34), which includes any associated submarine cable, submarine cable landing facilities, and any facility that performs network management, monitoring, maintenance, or other operational functions for such submarine cable system.

Does the US business maintain or collect, directly or indirectly, the results of an individual's genetic tests, including any related genetic sequencing data, whenever such results constitute identifiable data (not including data derived from databases maintained by the US Government and routinely provided to private parties for purposes of research)?

Yes

No

 

What are "genetic tests"?

The term genetic test means an analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that detects genotypes, mutations, or chromosomal changes. The term "genetic test" does not mean (i) an analysis of proteins or metabolites that does not detect genotypes, mutations, or chromosomal changes; or (ii) an analysis of proteins or metabolites that is directly related to a manifested disease, disorder, or pathological condition that could reasonably be detected by a health care professional with appropriate training and expertise in the field of medicine involved.

 

What is "identifiable data"?

The term identifiable data means data that can be used to distinguish or trace an individual's identity, including through the use of any personal identifier. Aggregated data or anonymized data is identifiable data if any party to the transaction has, or as a result of the transaction will have, the ability to disaggregate or de-anonymize the data, or if the data is otherwise capable of being used to distinguish or trace an individual's identity. Identifiable data does not include encrypted data, unless the US business that maintains or collects the encrypted data has the means to de-encrypt the data so as to distinguish or trace an individual's identity.

 

Types of data:

  • Financial data that could be used to analyze or determine an individual's financial distress or hardship;
  • The set of data in a consumer report, as defined under 15 USC 1681a, unless such data is obtained from a consumer reporting agency for one or more purposes identified in 15 USC 1681b(a) and such data is not substantially similar to the full contents of a consumer file as defined under 15 USC 1681a;
  • The set of data in an application for health insurance, long-term care insurance, professional liability insurance, mortgage insurance, or life insurance;
  • Data relating to the physical, mental, or psychological health condition of an individual;
  • Non-public electronic communications, including email, messaging, or chat communications, between or among users of a US business's products or services if a primary purpose of such product or service is to facilitate third-party user communications;
  • Geolocation data collected using positioning systems, cell phone towers, or WiFi access points such as via a mobile application, vehicle GPS, other onboard mapping tool, or wearable electronic device;
  • Biometric enrollment data including facial, voice, retina/iris, and palm/fingerprint templates;
  • Data stored and processed for generating a state or federal government identification card;
  • Data concerning US Government personnel security clearance status; or
  • The set of data in an application for a US Government personnel security clearance or an application for employment in a position of public trust.

Is this data either (1) only maintained or collected on the employees of the US business, and such individuals are not employees of a US Government contractor that hold personnel security clearances; or 2) a matter of public record?

Yes

no

Is the US business involved in critical infrastructure and/or sensitive personal data? You can repeat the analysis for each applicable sector.

Yes

No

 

What is "critical infrastructure"?

The term critical infrastructure means, in the context of a particular covered control transaction, systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems or assets would have a debilitating impact on national security. Under FIRRMA, CFIUS’s jurisdiction over covered investments in "critical infrastructure" is limited to a subset of critical infrastructure (referred to in the regulations as "covered investment critical infrastructure") that is likely to be of particular importance to US national security. These include:

  • telecoms: certain internet protocol networks, telecommunications and information services, internet exchange points, submarine cable systems and related facilities (including certain data centers);
  • power: certain systems for the generation, transmission, distribution, or storage of electric energy comprising the bulk-power system, industrial control systems utilized therefor, and certain electric storage resources physically connected to the bulk-power system;
  • oil and gas: certain refineries, crude oil storage facilities, liquid natural gas (LNG) import or export terminals, natural gas underground storage facilities or LNG peak-shaving facilities, interstate oil and natural gas pipelines, and industrial control systems therefor;
  • water: certain public water systems and treatment works, and industrial control systems therefor;
  • finance: certain systemically important financial market utilities, securities and options exchanges, and core processing services providers;
  • defense industrial base: fiber optic cables that directly serve certain military installations; facilities that provide electric power generation, transmission, distribution, or storage directly to or located on certain military installations and industrial control systems therefor; public water systems or treatment works directly serving certain military installations and industrial control systems therefor; interstate oil pipelines that directly serve the strategic petroleum reserve; rail lines and associated connector lines designated as part of the Department of Defense's (DOD) Strategic Rail Corridor Network; satellites or satellite systems providing services directly to DOD and its components; facilities in the United States that manufacture certain specialty metals, covered materials, chemical weapons antidotes, and carbon, alloy, and armor steel plate; and – other than commercially available off-the-shelf items – certain industrial resources manufactured or operated for a Major Defense Acquisition Program, Major System, or "DX" priority-rated contract or order, or funded by the Title III program, Industrial Base Fund, Rapid Innovation Fund, Manufacturing Technology Program, Defense Logistics Agency (DLA) Warstopper Program, or a DLA Surge and Sustainment contract; and
  • ports: airports and maritime ports that are subject to CFIUS's new real estate jurisdiction.

 

What is "sensitive personal data"?

The provisions defining sensitive personal data, listed below, are complex. To proceed through this analysis step by step, select "Yes" as your answer for now, and in the next step select "Sensitive Personal Data."

(a) The term sensitive personal data means, except as provided in paragraph (b) of this section:

(1) Identifiable data that is:

(i) Maintained or collected by a US business that:

(A) Targets or tailors products or services to any US executive branch agency or military department with intelligence, national security, or homeland security responsibilities, or to personnel and contractors thereof;

(B) Has maintained or collected any identifiable data within one or more categories described in paragraph (a)(1)(ii) of this section on greater than one million individuals at any point over the twelve (12) months preceding the earliest of the completion date, the date of any of the events described in § 800.104(b)(2) through (4) (as applicable), or the date of filing of a written notice or submission of a declaration, unless the US business can demonstrate that at the time of the completion date of the transaction it had or will have neither the capability to maintain nor the capability to collect any identifiable data within one or more categories described in paragraph (a)(1)(ii) of this section on greater than one million individuals; or

(C) Has a demonstrated business objective to maintain or collect any identifiable data within one or more categories described in paragraph (a)(1)(ii) of this section on greater than one million individuals and such data is an integrated part of the US business's primary products or services; and

(ii) Within any of the following categories:

(A) Financial data that could be used to analyze or determine an individual's financial distress or hardship;

(B) The set of data in a consumer report, as defined under 15 USC 1681a, unless such data is obtained from a consumer reporting agency for one or more purposes identified in 15 USC 1681b(a) and such data is not substantially similar to the full contents of a consumer file as defined under 15 USC 1681a;

(C) The set of data in an application for health insurance, long-term care insurance, professional liability insurance, mortgage insurance, or life insurance;

(D) Data relating to the physical, mental, or psychological health condition of an individual;

(E) Non-public electronic communications, including email, messaging, or chat communications, between or among users of a US business's products or services if a primary purpose of such product or service is to facilitate third-party user communications;

(F) Geolocation data collected using positioning systems, cell phone towers, or WiFi access points such as via a mobile application, vehicle GPS, other onboard mapping tool, or wearable electronic device;

(G) Biometric enrollment data including facial, voice, retina/iris, and palm/fingerprint templates;

(H) Data stored and processed for generating a state or federal government identification card;

(I) Data concerning US Government personnel security clearance status; or

(J) The set of data in an application for a US Government personnel security clearance or an application for employment in a position of public trust; and

(2) The results of an individual's genetic tests, including any related genetic sequencing data, whenever such results constitute identifiable data. Such results shall not include data derived from databases maintained by the US Government and routinely provided to private parties for purposes of research. For purposes of this paragraph, "genetic test" shall have the meaning provided in 42 USC 300gg-91(d)(17).

(b) The term sensitive personal data shall not include, regardless of the applicability of the criteria described in paragraph (a) of this section:

(1) Data maintained or collected by a US business concerning the employees of that US business, unless the data pertains to employees of US Government contractors who hold US Government personnel security clearances; or

(2) Data that is a matter of public record, such as court records or other government records that are generally available to the public.

Is the US business involved in critical technologies and/or sensitive personal data? You can repeat the analysis for each applicable sector.

Yes

No

 

What are "critical technologies"?

The term critical technologies means the following:

 

What is "sensitive personal data"?

The provisions defining sensitive personal data, listed below, are complex. To proceed through this analysis step by step, select "Yes" as your answer for now, and in the next step select "Sensitive Personal Data."

(a) The term sensitive personal data means, except as provided in paragraph (b) of this section:

(1) Identifiable data that is:

(i) Maintained or collected by a US business that:

(A) Targets or tailors products or services to any US executive branch agency or military department with intelligence, national security, or homeland security responsibilities, or to personnel and contractors thereof;

(B) Has maintained or collected any identifiable data within one or more categories described in paragraph (a)(1)(ii) of this section on greater than one million individuals at any point over the twelve (12) months preceding the earliest of the completion date, the date of any of the events described in § 800.104(b)(2) through (4) (as applicable), or the date of filing of a written notice or submission of a declaration, unless the US business can demonstrate that at the time of the completion date of the transaction it had or will have neither the capability to maintain nor the capability to collect any identifiable data within one or more categories described in paragraph (a)(1)(ii) of this section on greater than one million individuals; or

(C) Has a demonstrated business objective to maintain or collect any identifiable data within one or more categories described in paragraph (a)(1)(ii) of this section on greater than one million individuals and such data is an integrated part of the US business's primary products or services; and

(ii) Within any of the following categories:

(A) Financial data that could be used to analyze or determine an individual's financial distress or hardship;

(B) The set of data in a consumer report, as defined under 15 USC 1681a, unless such data is obtained from a consumer reporting agency for one or more purposes identified in 15 USC 1681b(a) and such data is not substantially similar to the full contents of a consumer file as defined under 15 USC 1681a;

(C) The set of data in an application for health insurance, long-term care insurance, professional liability insurance, mortgage insurance, or life insurance;

(D) Data relating to the physical, mental, or psychological health condition of an individual;

(E) Non-public electronic communications, including email, messaging, or chat communications, between or among users of a US business's products or services if a primary purpose of such product or service is to facilitate third-party user communications;

(F) Geolocation data collected using positioning systems, cell phone towers, or WiFi access points such as via a mobile application, vehicle GPS, other onboard mapping tool, or wearable electronic device;

(G) Biometric enrollment data including facial, voice, retina/iris, and palm/fingerprint templates;

(H) Data stored and processed for generating a state or federal government identification card;

(I) Data concerning US Government personnel security clearance status; or

(J) The set of data in an application for a US Government personnel security clearance or an application for employment in a position of public trust; and

(2) The results of an individual's genetic tests, including any related genetic sequencing data, whenever such results constitute identifiable data. Such results shall not include data derived from databases maintained by the US Government and routinely provided to private parties for purposes of research. For purposes of this paragraph, "genetic test" shall have the meaning provided in 42 USC 300gg-91(d)(17).

(b) The term sensitive personal data shall not include, regardless of the applicability of the criteria described in paragraph (a) of this section:

(1) Data maintained or collected by a US business concerning the employees of that US business, unless the data pertains to employees of US Government contractors who hold US Government personnel security clearances; or

(2) Data that is a matter of public record, such as court records or other government records that are generally available to the public.

Does the US business maintain or collect, directly or indirectly, any identifiable data of the type described below?

Yes

No

What is "identifiable data"?

The term identifiable data means data that can be used to distinguish or trace an individual's identity, including through the use of any personal identifier. Aggregated data or anonymized data is identifiable data if any party to the transaction has, or as a result of the transaction will have, the ability to disaggregate or de-anonymize the data, or if the data is otherwise capable of being used to distinguish or trace an individual's identity. Identifiable data does not include encrypted data, unless the US business that maintains or collects the encrypted data has the means to de-encrypt the data so as to distinguish or trace an individual's identity.

 

Types of data:

  • Financial data that could be used to analyze or determine an individual's financial distress or hardship;
  • The set of data in a consumer report, as defined under 15 USC 1681a, unless such data is obtained from a consumer reporting agency for one or more purposes identified in 15 USC 1681b(a) and such data is not substantially similar to the full contents of a consumer file as defined under 15 USC 1681a;
  • The set of data in an application for health insurance, long-term care insurance, professional liability insurance, mortgage insurance, or life insurance;
  • Data relating to the physical, mental, or psychological health condition of an individual;
  • Non-public electronic communications, including email, messaging, or chat communications, between or among users of a US business's products or services if a primary purpose of such product or service is to facilitate third-party user communications;
  • Geolocation data collected using positioning systems, cell phone towers, or WiFi access points such as via a mobile application, vehicle GPS, other onboard mapping tool, or wearable electronic device;
  • Biometric enrollment data including facial, voice, retina/iris, and palm/fingerprint templates;
  • Data stored and processed for generating a state or federal government identification card;
  • Data concerning US Government personnel security clearance status; or
  • The set of data in an application for a US Government personnel security clearance or an application for employment in a position of public trust.

Is this data either (1) only maintained or collected on the employees of the US business, and such individuals are not employees of a US Government contractor that hold personnel security clearances; or 2) a matter of public record?

Yes

No

Does the US business target or tailor products or services to any US executive branch agency or military department with intelligence, national security, or homeland security responsibilities, or to personnel and contractors thereof?

Yes

No

 

What is "targets or tailors"?

The term targets or tailors means customizing products or services for use by a person or group of persons or actively marketing to or soliciting a person or group of persons.

Has the US business maintained or collected such identifiable data on greater than one million individuals at any point over the 12 months preceding the earliest of (1) the completion date, (2) the date of any of these events listed below, or (3) the date of filing of a written notice or submission of a declaration?

Yes

No

 

What is "identifiable data"?

The term identifiable data means data that can be used to distinguish or trace an individual's identity, including through the use of any personal identifier. Aggregated data or anonymized data is identifiable data if any party to the transaction has, or as a result of the transaction will have, the ability to disaggregate or de-anonymize the data, or if the data is otherwise capable of being used to distinguish or trace an individual's identity. Identifiable data does not include encrypted data, unless the US business that maintains or collects the encrypted data has the means to de-encrypt the data so as to distinguish or trace an individual's identity.

 

Types of data:

  • Financial data that could be used to analyze or determine an individual's financial distress or hardship;
  • The set of data in a consumer report, as defined under 15 USC 1681a, unless such data is obtained from a consumer reporting agency for one or more purposes identified in 15 USC 1681b(a) and such data is not substantially similar to the full contents of a consumer file as defined under 15 USC 1681a;
  • The set of data in an application for health insurance, long-term care insurance, professional liability insurance, mortgage insurance, or life insurance;
  • Data relating to the physical, mental, or psychological health condition of an individual;
  • Non-public electronic communications, including email, messaging, or chat communications, between or among users of a US business's products or services if a primary purpose of such product or service is to facilitate third-party user communications;
  • Geolocation data collected using positioning systems, cell phone towers, or WiFi access points such as via a mobile application, vehicle GPS, other onboard mapping tool, or wearable electronic device;
  • Biometric enrollment data including facial, voice, retina/iris, and palm/fingerprint templates;
  • Data stored and processed for generating a state or federal government identification card;
  • Data concerning US Government personnel security clearance status; or
  • The set of data in an application for a US Government personnel security clearance or an application for employment in a position of public trust.

 

What is the "completion date"?

The completion date is means, with respect to a transaction, the earliest date upon which any ownership interest, including a contingent equity interest, is conveyed, assigned, delivered, or otherwise transferred to a person, or a change in rights that could result in a covered control transaction or covered investment occurs.

 

What are these "events"?

  • The parties to the transaction have executed a binding written agreement, or other binding document, establishing the material terms of the transaction;
  • A party has made a public offer to shareholders to buy shares of a US business; or
  • A shareholder has solicited proxies in connection with an election of the board of directors of a US business or an owner or holder of a contingent equity interest has requested the conversion of the contingent equity interest.

Can the US business demonstrate that at the time of the completion date of the transaction it had or will have neither the capability to maintain nor the capability to collect any such identifiable data on greater than one million individuals?

Yes

No

 

What is the "completion date"?

The completion date is means, with respect to a transaction, the earliest date upon which any ownership interest, including a contingent equity interest, is conveyed, assigned, delivered, or otherwise transferred to a person, or a change in rights that could result in a covered control transaction or covered investment occurs.

 

What is "identifiable data"?

The term identifiable data means data that can be used to distinguish or trace an individual's identity, including through the use of any personal identifier. Aggregated data or anonymized data is identifiable data if any party to the transaction has, or as a result of the transaction will have, the ability to disaggregate or de-anonymize the data, or if the data is otherwise capable of being used to distinguish or trace an individual's identity. Identifiable data does not include encrypted data, unless the US business that maintains or collects the encrypted data has the means to de-encrypt the data so as to distinguish or trace an individual's identity.

 

Types of data:

  • Financial data that could be used to analyze or determine an individual's financial distress or hardship;
  • The set of data in a consumer report, as defined under 15 USC 1681a, unless such data is obtained from a consumer reporting agency for one or more purposes identified in 15 USC 1681b(a) and such data is not substantially similar to the full contents of a consumer file as defined under 15 USC 1681a;
  • The set of data in an application for health insurance, long-term care insurance, professional liability insurance, mortgage insurance, or life insurance;
  • Data relating to the physical, mental, or psychological health condition of an individual;
  • Non-public electronic communications, including email, messaging, or chat communications, between or among users of a US business's products or services if a primary purpose of such product or service is to facilitate third-party user communications;
  • Geolocation data collected using positioning systems, cell phone towers, or WiFi access points such as via a mobile application, vehicle GPS, other onboard mapping tool, or wearable electronic device;
  • Biometric enrollment data including facial, voice, retina/iris, and palm/fingerprint templates;
  • Data stored and processed for generating a state or federal government identification card;
  • Data concerning US Government personnel security clearance status; or
  • The set of data in an application for a US Government personnel security clearance or an application for employment in a position of public trust.

Does the US business have a demonstrated business objective to maintain or collect such identifiable data on greater than one million individuals and such data is an integrated part of the US business's primary products or services?

Yes

No

 

What is "identifiable data"?

The term identifiable data means data that can be used to distinguish or trace an individual's identity, including through the use of any personal identifier. Aggregated data or anonymized data is identifiable data if any party to the transaction has, or as a result of the transaction will have, the ability to disaggregate or de-anonymize the data, or if the data is otherwise capable of being used to distinguish or trace an individual's identity. Identifiable data does not include encrypted data, unless the US business that maintains or collects the encrypted data has the means to de-encrypt the data so as to distinguish or trace an individual's identity.

 

Types of data:

  • Financial data that could be used to analyze or determine an individual's financial distress or hardship;
  • The set of data in a consumer report, as defined under 15 USC 1681a, unless such data is obtained from a consumer reporting agency for one or more purposes identified in 15 USC 1681b(a) and such data is not substantially similar to the full contents of a consumer file as defined under 15 USC 1681a;
  • The set of data in an application for health insurance, long-term care insurance, professional liability insurance, mortgage insurance, or life insurance;
  • Data relating to the physical, mental, or psychological health condition of an individual;
  • Non-public electronic communications, including email, messaging, or chat communications, between or among users of a US business's products or services if a primary purpose of such product or service is to facilitate third-party user communications;
  • Geolocation data collected using positioning systems, cell phone towers, or WiFi access points such as via a mobile application, vehicle GPS, other onboard mapping tool, or wearable electronic device;
  • Biometric enrollment data including facial, voice, retina/iris, and palm/fingerprint templates;
  • Data stored and processed for generating a state or federal government identification card;
  • Data concerning US Government personnel security clearance status; or
  • The set of data in an application for a US Government personnel security clearance or an application for employment in a position of public trust.

Is the US business involved in critical technologies and/or critical infrastructure? You can repeat the analysis for each applicable sector.

Yes

No

 

What are "critical technologies"?

The term critical technologies means the following:

 

What is "critical infrastructure"?

The term critical infrastructure means, in the context of a particular covered control transaction, systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems or assets would have a debilitating impact on national security. Under FIRRMA, CFIUS’s jurisdiction over covered investments in "critical infrastructure" is limited to a subset of critical infrastructure (referred to in the regulations as "covered investment critical infrastructure") that is likely to be of particular importance to US national security. These include:

  • telecoms: certain internet protocol networks, telecommunications and information services, internet exchange points, submarine cable systems and related facilities (including certain data centers);
  • power: certain systems for the generation, transmission, distribution, or storage of electric energy comprising the bulk-power system, industrial control systems utilized therefor, and certain electric storage resources physically connected to the bulk-power system;
  • oil and gas: certain refineries, crude oil storage facilities, liquid natural gas (LNG) import or export terminals, natural gas underground storage facilities or LNG peak-shaving facilities, interstate oil and natural gas pipelines, and industrial control systems therefor;
  • water: certain public water systems and treatment works, and industrial control systems therefor;
  • finance: certain systemically important financial market utilities, securities and options exchanges, and core processing services providers;
  • defense industrial base: fiber optic cables that directly serve certain military installations; facilities that provide electric power generation, transmission, distribution, or storage directly to or located on certain military installations and industrial control systems therefor; public water systems or treatment works directly serving certain military installations and industrial control systems therefor; interstate oil pipelines that directly serve the strategic petroleum reserve; rail lines and associated connector lines designated as part of the Department of Defense's (DOD) Strategic Rail Corridor Network; satellites or satellite systems providing services directly to DOD and its components; facilities in the United States that manufacture certain specialty metals, covered materials, chemical weapons antidotes, and carbon, alloy, and armor steel plate; and – other than commercially available off-the-shelf items – certain industrial resources manufactured or operated for a Major Defense Acquisition Program, Major System, or "DX" priority-rated contract or order, or funded by the Title III program, Industrial Base Fund, Rapid Innovation Fund, Manufacturing Technology Program, Defense Logistics Agency (DLA) Warstopper Program, or a DLA Surge and Sustainment contract; and
  • ports: airports and maritime ports that are subject to CFIUS's new real estate jurisdiction.

Could the transaction result in foreign control of a US business?

Yes

No

 

What is "control"?

(a) The term control means the power, direct or indirect, whether or not exercised, through the ownership of a majority or a dominant minority of the total outstanding voting interest in an entity, board representation, proxy voting, a special share, contractual arrangements, formal or informal arrangements to act in concert, or other means, to determine, direct, or decide important matters affecting an entity; in particular, but without limitation, to determine, direct, take, reach, or cause decisions regarding the following matters, or any other similarly important matters affecting an entity:

(1) The sale, lease, mortgage, pledge, or other transfer of any of the tangible or intangible principal assets of the entity, whether or not in the ordinary course of business;

(2) The reorganization, merger, or dissolution of the entity;

(3) The closing, relocation, or substantial alteration of the production, operational, or research and development facilities of the entity;

(4) Major expenditures or investments, issuances of equity or debt, or dividend payments by the entity, or approval of the operating budget of the entity;

(5) The selection of new business lines or ventures that the entity will pursue;

(6) The entry into, termination, or non-fulfillment by the entity of significant contracts;

(7) The policies or procedures of the entity governing the treatment of non-public technical, financial, or other proprietary information of the entity;

(8) The appointment or dismissal of officers or senior managers or, in the case of a partnership, the general partner;

(9) The appointment or dismissal of employees with access to critical technology or other sensitive technology or classified US Government information; or

(10) The amendment of the Articles of Incorporation, constituent agreement, or other organizational documents of the entity with respect to the matters described in paragraphs (a)(1) through (9) of this section.

(b) In examining questions of control in situations where more than one foreign person has an ownership interest in an entity, consideration will be given to factors such as whether the foreign persons are related or have formal or informal arrangements to act in concert, whether they are agencies or instrumentalities of the national or subnational governments of a single foreign state, and whether a given foreign person and another person that has an ownership interest in the entity are both controlled by any of the national or subnational governments of a single foreign state.

(c) The following minority shareholder protections shall not in themselves be deemed to confer control over an entity:

(1) The power to prevent the sale or pledge of all or substantially all of the assets of an entity or a voluntary filing for bankruptcy or liquidation;

(2) The power to prevent an entity from entering into contracts with majority investors or their affiliates;

(3) The power to prevent an entity from guaranteeing the obligations of majority investors or their affiliates;

(4) The right to purchase an additional interest in an entity to prevent the dilution of an investor's pro rata interest in that entity in the event that the entity issues additional instruments conveying interests in the entity;

(5) The power to prevent the change of existing legal rights or preferences of the particular class of stock held by minority investors, as provided in the relevant corporate documents governing such shares; and

(6) The power to prevent the amendment of the Articles of Incorporation, constituent agreement, or other organizational documents of an entity with respect to the matters described in paragraphs (c)(1) through (5) of this section.

(d) The Committee will consider, on a case-by-case basis, whether minority shareholder protections other than those listed in paragraph (c) of this section do not confer control over an entity.

Based on your response, the transaction does not appear to be a covered transaction subject to CFIUS's investment-related jurisdiction under 31 CFR Part 800. Please note, however, that the jurisdictional analysis under FIRRMA is highly fact specific. If you have any questions or would like to discuss a particular transaction in detail, please contact one of our CFIUS specialists at White & Case LLP.

Click here to continue to the Part 802 Analysis to determine whether the transaction could be a covered real estate transaction under 31 CFR Part 802, which includes certain purchases, leases, or concessions of US real estate by foreign persons.

 

Farhad Jalinous

Farhad Jalinous
Partner, Washington, DC
+1 202 626 3691
[email protected]

Karalyn Mildorf

Karalyn Mildorf
Partner, Washington, DC
+1 202 626 6489
[email protected]

Keith Schomig

Keith Schomig
Counsel, Washington, DC
+1 202 729 2330
[email protected]

Based on your responses, the US business that is the subject of this transaction does not appear to be a TID US business. This means that CFIUS's expanded investment jurisdiction (including potential mandatory filing requirements) would not apply to the transaction. Additional analysis is required to determine whether the contemplated transaction would be subject to CFIUS's general jurisdiction.

Click here to continue the analysis.

 

What is a "TID US business"?

The term TID US business means any US business that:

  • Produces, designs, tests, manufactures, fabricates, or develops one or more critical technologies;
  • Performs the functions as set forth in Column 2 of Appendix A to 31 CFR Part 800 with respect to covered investment critical infrastructure; or
  • Maintains or collects, directly or indirectly, sensitive personal data of US citizens.

Based on your responses, the US business that is the subject of this transaction appears to be a TID US business. The jurisdictional analysis for a TID US business requires examining additional provisions of the CFIUS regulations to determine whether the transaction is a covered transaction subject to CFIUS's jurisdiction and, if so, if a CFIUS filing is mandatory or voluntary. The following questions ask about the transaction and the foreign investor.

Click here to continue the analysis.

 

What is a "TID US business"?

The term TID US business means any US business that:

  • Produces, designs, tests, manufactures, fabricates, or develops one or more critical technologies;
  • Performs the functions as set forth in Column 2 of Appendix A to 31 CFR Part 800 with respect to covered investment critical infrastructure; or
  • Maintains or collects, directly or indirectly, sensitive personal data of US citizens.

Based on your responses, the US business that is the subject of this transaction maintains or collects sensitive personal data of US citizens.

Click here to continue.

Based on your responses, the US business that is the subject of this transaction does not maintain or collect sensitive personal data of US citizens.

Click here to continue the analysis.

Based on your responses, the transaction appears to be a covered control transaction subject to CFIUS's jurisdiction. Please note, however, that the jurisdictional analysis under FIRRMA is highly fact specific. If you have any questions or would like to discuss a particular transaction in detail, please contact one of our CFIUS specialists at White & Case LLP:

Farhad Jalinous

Farhad Jalinous
Partner, Washington, DC
+1 202 626 3691
[email protected]

Karalyn Mildorf

Karalyn Mildorf
Partner, Washington, DC
+1 202 626 6489
[email protected]

Keith Schomig

Keith Schomig
Counsel, Washington, DC
+1 202 729 2330
[email protected]

Based on your responses, the transaction appears to be a covered control transaction subject to CFIUS's jurisdiction.

Click here to continue the analysis to determine if a filing is voluntary or mandatory.

 

Farhad Jalinous

Farhad Jalinous
Partner, Washington, DC
+1 202 626 3691
[email protected]

Karalyn Mildorf

Karalyn Mildorf
Partner, Washington, DC
+1 202 626 6489
[email protected]

Keith Schomig

Keith Schomig
Counsel, Washington, DC
+1 202 729 2330
[email protected]

Based on your responses, the transaction appears to be a covered investment subject to CFIUS's jurisdiction.

Click here to continue the analysis to determine if a filing is voluntary or mandatory.

 

Farhad Jalinous

Farhad Jalinous
Partner, Washington, DC
+1 202 626 3691
[email protected]

Karalyn Mildorf

Karalyn Mildorf
Partner, Washington, DC
+1 202 626 6489
[email protected]

Keith Schomig

Keith Schomig
Counsel, Washington, DC
+1 202 729 2330
[email protected]

Based on your responses, the transaction does not appear to be a covered transaction subject to CFIUS's jurisdiction. Please note, however, that the jurisdictional analysis under FIRRMA is highly fact specific. If you have any questions or would like to discuss a particular transaction in detail, please contact one of our CFIUS specialists at White & Case LLP:

Farhad Jalinous

Farhad Jalinous
Partner, Washington, DC
+1 202 626 3691
[email protected]

Karalyn Mildorf

Karalyn Mildorf
Partner, Washington, DC
+1 202 626 6489
[email protected]

Keith Schomig

Keith Schomig
Counsel, Washington, DC
+1 202 729 2330
[email protected]

Based on your responses, the transaction appears to be a covered real estate transaction subject to CFIUS's jurisdiction (click here to determine any filing fee that may apply to the submission of a notice). Please note, however, that the jurisdictional analysis under FIRRMA is highly fact specific. If you have any questions or would like to discuss a particular transaction in detail, please contact one of our CFIUS specialists at White & Case LLP:

Farhad Jalinous

Farhad Jalinous
Partner, Washington, DC
+1 202 626 3691
[email protected]

Karalyn Mildorf

Karalyn Mildorf
Partner, Washington, DC
+1 202 626 6489
[email protected]

Keith Schomig

Keith Schomig
Counsel, Washington, DC
+1 202 729 2330
[email protected]

Based on your responses, the transaction does not appear to be a covered real estate transaction subject to CFIUS's jurisdiction. Please note, however, that the jurisdictional analysis under FIRRMA is highly fact specific. If you have any questions or would like to discuss a particular transaction in detail, please contact one of our CFIUS specialists at White & Case LLP:

Farhad Jalinous

Farhad Jalinous
Partner, Washington, DC
+1 202 626 3691
[email protected]

Karalyn Mildorf

Karalyn Mildorf
Partner, Washington, DC
+1 202 626 6489
[email protected]

Keith Schomig

Keith Schomig
Counsel, Washington, DC
+1 202 729 2330
[email protected]

Based on your responses, the submission of a notice or declaration to CFIUS with respect to this transaction appears to be voluntary (click here to determine any filing fee that may apply to the submission of a notice). Please note, however, that the jurisdictional analysis under FIRRMA — including whether a filing is voluntary or mandatory — is highly fact specific. If you have any questions or would like to discuss a particular transaction in detail, please contact one of our CFIUS specialists at White & Case LLP:

Farhad Jalinous

Farhad Jalinous
Partner, Washington, DC
+1 202 626 3691
[email protected]

Karalyn Mildorf

Karalyn Mildorf
Partner, Washington, DC
+1 202 626 6489
[email protected]

Keith Schomig

Keith Schomig
Counsel, Washington, DC
+1 202 729 2330
[email protected]

Based on your responses, the submission of a notice or declaration to CFIUS with respect to this transaction appears to be mandatory at least 30 days prior to the completion date (click here to determine any filing fee that may apply to the submission of a notice). Please note, however, that the jurisdictional analysis under FIRRMA — including whether a filing is voluntary or mandatory — is highly fact specific. If you have any questions or would like to discuss a particular transaction in detail, please contact one of our CFIUS specialists at White & Case LLP:

Farhad Jalinous

Farhad Jalinous
Partner, Washington, DC
+1 202 626 3691
[email protected]

Karalyn Mildorf

Karalyn Mildorf
Partner, Washington, DC
+1 202 626 6489
[email protected]

Keith Schomig

Keith Schomig
Counsel, Washington, DC
+1 202 729 2330
[email protected]

Does the transaction involve a purchase or lease by, or concession to, a foreign person of real estate and afford the foreign person at least three of the following property rights with respect to the real estate: the right (1) to physically access the real estate; (2) to exclude others from physically accessing the real estate; (3) to improve or develop the real estate; or (4) to attach fixed or immovable structures or objects to the real estate?

Yes

No

 

What is a "foreign person"?

The term foreign person means:

  • Any foreign national, foreign government, or foreign entity; or
  • Any entity over which control is exercised or exercisable by a foreign national, foreign government, or foreign entity.

Any entity over which control is exercised or exercisable by a foreign person is a foreign person.

 

What is "real estate"?

The term real estate means any land, including subsurface and submerged, or structure attached to land, including any building or any part thereof, that is located in the United States.

Is the real estate located within one mile of any military installation or any US Government facility or property listed below? (The CFIUS Geographic Reference Tool may be used to assist in determining the proximity of the real estate to US government facilities.)

Yes

No

 

Facility Location
Adelphi Laboratory Center Adelphi, MD
Air Force Maui Optical and Supercomputing Site Maui, HI
Air Force Office of Scientific Research Arlington, VA
Andersen Air Force Base Yigo, Guam
Army Futures Command Austin, TX
Army Research Lab—Orlando Simulations and Training Technology Center Orlando, FL
Army Research Lab—Raleigh Durham Raleigh Durham, NC
Arnold Air Force Base Coffee County and Franklin County, TN
Beale Air Force Base Yuba City, CA
Biometric Technology Center (Biometrics Identity Management Activity) Clarksburg, WV
Buckley Air Force Base Aurora, CO
Camp MacKall Pinebluff, NC
Cape Cod Air Force Station Sandwich, MA
Cape Newenham Long Range Radar Site Cape Newenham, AK
Cavalier Air Force Station Cavalier, ND
Cheyenne Mountain Air Force Station Colorado Springs, CO
Clear Air Force Station Anderson, AK
Creech Air Force Base Indian Springs, NV
Davis-Monthan Air Force Base Tucson, AZ
Defense Advanced Research Projects Agency Arlington, VA
Eareckson Air Force Station Shemya, AK
Eielson Air Force Base Fairbanks, AK
Ellington Field Joint Reserve Base Houston, TX
Fairchild Air Force Base Spokane, WA
Fort Benning Columbus, GA
Fort Belvoir Fairfax County, VA
Fort Bliss El Paso, TX
Fort Campbell Hopkinsville, KY
Fort Carson Colorado Springs, CO
Fort Detrick Frederick, MD
Fort Drum Watertown, NY
Fort Gordon Augusta, GA
Fort Hood Killeen, TX
Fort Knox Fort Knox, KY
Fort Leavenworth Leavenworth, KS
Fort Lee Petersburg, VA
Fort Leonard Wood Pulaski County, MO
Fort Meade Anne Arundel County, MD
Fort Riley Junction City, KS
Fort Shafter Honolulu, HI
Fort Sill Lawton, OK
Fort Stewart Hinesville, GA
Fort Yukon Long Range Radar Site Fort Yukon, AK
Francis E. Warren Air Force Base Cheyenne, WY
Guam Tracking Station Inarajan, Guam
Hanscom Air Force Base Lexington, MA
Holloman Air Force Base Alamogordo, NM
Holston Army Ammunition Plant Kingsport, TN
Joint Base Anacostia-Bolling Washington, DC
Joint Base Andrews Camp Springs, MD
Joint Base Elmendorf-Richardson Anchorage, AK
Joint Base Langley-Eustis Hampton, VA and Newport News, VA
Joint Base Lewis-McChord Tacoma, WA
Joint Base McGuire-Dix-Lakehurst Lakehurst, NJ
Joint Base Pearl Harbor-Hickam Honolulu, HI
Joint Base San Antonio San Antonio, TX
Joint Expeditionary Base Little Creek-Fort Story Virginia Beach, VA
Kaena Point Satellite Tracking Station Waianae, HI
King Salmon Air Force Station King Salmon, AK
Kirtland Air Force Base Albuquerque, NM
Kodiak Tracking Stations Kodiak Island, AK
Los Angeles Air Force Base El Segundo, CA
MacDill Air Force Base Tampa, FL
Malmstrom Air Force Base Great Falls, MT
Marine Corps Air Ground Combat Center Twentynine Palms Twentynine Palms, CA
Marine Corps Air Station Beaufort Beaufort, SC
Marine Corps Air Station Cherry Point Cherry Point, NC
Marine Corps Air Station Miramar San Diego, CA
Marine Corps Air Station New River Jacksonville, NC
Marine Corps Air Station Yuma Yuma, AZ
Marine Corps Base Camp Lejeune Jacksonville, NC
Marine Corps Base Camp Pendleton Oceanside, CA
Marine Corps Base Hawaii Kaneohe Bay, HI
Marine Corps Base Hawaii, Camp H.M. Smith Halawa, HI
Marine Corps Base Quantico Quantico, VA
Mark Center Alexandria, VA
Minot Air Force Base Minot, ND
Moody Air Force Base Valdosta, GA
Naval Air Station Joint Reserve Base New Orleans Belle Chasse, LA
Naval Air Station Oceana Virginia Beach, VA
Naval Air Station Oceana Dam Neck Annex Virginia Beach, VA
Naval Air Station Whidbey Island Oak Harbor, WA
Naval Base Guam Apra Harbor, Guam
Naval Base Kitsap Bangor Silverdale, WA
Naval Base Point Loma San Diego, CA
Naval Base San Diego San Diego, CA
Naval Base Ventura County—Port Hueneme Operating Facility Port Hueneme, CA
Naval Research Laboratory Washington, DC
Naval Research Laboratory—Blossom Point Welcome, MD
Naval Research Laboratory—Stennis Space Center Hancock County, MS
Naval Research Laboratory—Tilghman Tilghman, MD
Naval Station Newport Newport, RI
Naval Station Norfolk Norfolk, VA
Naval Submarine Base Kings Bay Kings Bay, GA
Naval Submarine Base New London Groton, CT
Naval Surface Warfare Center Carderock Division—Acoustic Research Detachment Bayview, ID
Naval Support Activity Crane Crane, IN
Naval Support Activity Orlando Orlando, FL
Naval Support Activity Panama City Panama City, FL
Naval Support Activity Philadelphia Philadelphia, PA
Naval Support Facility Carderock Bethesda, MD
Naval Support Facility Dahlgren Dahlgren, VA
Naval Support Facility Indian Head Indian Head, MD
Naval Weapons Station Seal Beach Detachment Norco Norco, CA
New Boston Air Station New Boston, NH
Offutt Air Force Base Bellevue, NE
Oliktok Long Range Radar Site Oliktok, AK
Orchard Combat Training Center Boise, ID
Peason Ridge Training Area Leesville, LA
Pentagon Arlington, VA
Peterson Air Force Base Colorado Springs, CO
Picatinny Arsenal Morris County, NJ
Piñon Canyon Maneuver Site Tyrone, CO
Pohakuloa Training Area Hilo, HI
Point Barrow Long Range Radar Site Point Barrow, AK
Portsmouth Naval Shipyard Kittery, ME
Radford Army Ammunition Plant Radford, VA
Redstone Arsenal Huntsville, AL
Rock Island Arsenal Rock Island, IL
Rome Research Laboratory Rome, NY
Schriever Air Force Base Colorado Springs, CO
Seymour Johnson Air Force Base Goldsboro, NC
Shaw Air Force Base Sumter, SC
Southeast Alaska Acoustic Measurement Facility Ketchikan, AK
Tin City Long Range Radar Site Tin City, AK
Tinker Air Force Base Midwest City, OK
Travis Air Force Base Fairfield, CA
Tyndall Air Force Base Bay County, FL
US Army Natick Soldier Systems Center Natick, MA
Watervliet Arsenal Watervliet, NY
Wright-Patterson Air Force Base Dayton, OH
Facility Location
Aberdeen Proving Ground Aberdeen, MD
Camp Shelby Hattiesburg, MS
Cape Canaveral Air Force Station Cape Canaveral, FL
Dare County Range Manns Harbor, NC
Edwards Air Force Base Edwards, CA
Eglin Air Force Base Valparaiso, FL
Fallon Range Complex Fallon, NV
Fort Bragg Fayetteville, NC
Fort Greely Delta Junction, AK
Fort Huachuca Sierra Vista, AZ
Fort Irwin San Bernardino County, CA
Fort Polk Leesville, LA
Fort Wainwright Fairbanks, AK
Hardwood Range Necehuenemedah, WI
Hill Air Force Base Ogden, UT
Mountain Home Air Force Base Mountain Home, ID
Naval Air Station Meridian Meridian, MS
Naval Air Station Patuxent River Lexington Park, MD
Naval Air Weapons Station China Lake Ridgecrest, CA
Naval Base Kitsap—Keyport Keyport, WA
Naval Base Ventura County—Point Mugu Operating Facility Point Mugu, CA
Naval Weapons Systems Training Facility Boardman Boardman, OR
Nellis Air Force Base Las Vegas, NV
Nevada Test and Training Range Tonopah, NV
Pacific Missile Range Facility Kekaha, HI
Patrick Air Force Base Cocoa Beach, FL
Tropic Regions Test Center Wahiawa, HI
Utah Test and Training Range Barro, UT
Vandenberg Air Force Base Lompoc, CA
West Desert Test Center Dugway, UT
White Sands Missile Range White Sands Missile Range, NM
Yuma Proving Ground Yuma, AZ

Is the real estate located within 100 miles of any military installation listed below? (The CFIUS Geographic Reference Tool may be used to assist in determining the proximity of the real estate to US government facilities.)

Yes

No

 

Facility Location
Aberdeen Proving Ground Aberdeen, MD
Camp Shelby Hattiesburg, MS
Cape Canaveral Air Force Station Cape Canaveral, FL
Dare County Range Manns Harbor, NC
Edwards Air Force Base Edwards, CA
Eglin Air Force Base Valparaiso, FL
Fallon Range Complex Fallon, NV
Fort Bragg Fayetteville, NC
Fort Greely Delta Junction, AK
Fort Huachuca Sierra Vista, AZ
Fort Irwin San Bernardino County, CA
Fort Polk Leesville, LA
Fort Wainwright Fairbanks, AK
Hardwood Range Necehuenemedah, WI
Hill Air Force Base Ogden, UT
Mountain Home Air Force Base Mountain Home, ID
Naval Air Station Meridian Meridian, MS
Naval Air Station Patuxent River Lexington Park, MD
Naval Air Weapons Station China Lake Ridgecrest, CA
Naval Base Kitsap—Keyport Keyport, WA
Naval Base Ventura County—Point Mugu Operating Facility Point Mugu, CA
Naval Weapons Systems Training Facility Boardman Boardman, OR
Nellis Air Force Base Las Vegas, NV
Nevada Test and Training Range Tonopah, NV
Pacific Missile Range Facility Kekaha, HI
Patrick Air Force Base Cocoa Beach, FL
Tropic Regions Test Center Wahiawa, HI
Utah Test and Training Range Barro, UT
Vandenberg Air Force Base Lompoc, CA
West Desert Test Center Dugway, UT
White Sands Missile Range White Sands Missile Range, NM
Yuma Proving Ground Yuma, AZ

Is the real estate located within any county or geographic area listed below? (The CFIUS Geographic Reference Tool may be used to assist in determining the proximity of the real estate to US government facilities.)

Yes

No

 

Facility Location Area covered
90th Missile Wing, Francis E. Warren Air Force Base Missile Field (Colorado, Nebraska, and Wyoming) Logan, CO All lands except those located south of Township 8 North and east of Range 51 West using the Bureau of Land Management's Public Lands Survey System
Morgan, CO All lands located north of Township 3 North using the Bureau of Land Management's Public Lands Survey System
Sedgwick, CO All lands except those located east of Range 46 West using the Bureau of Land Management's Public Lands Survey System
Washington, CO All lands located north of Township 4 North, and west of Range 52 West using the Bureau of Land Management's Public Lands Survey System
Weld, CO All lands located north of Township 4 North, and east of Range 64 West using the Bureau of Land Management's Public Lands Survey System
Banner, NE All
Cheyenne, NE All
Deuel, NE All lands located south of Township 15 North, and west of Range 43 West using the Bureau of Land Management's Public Lands Survey System
Garden, NE All lands located south of Township 19 North, and west Range 43 West using the Bureau of Land Management's Public Lands Survey System
Kimball, NE All
Morrill, NE All lands except those located north of Township 21 North using the Bureau of Land Management's Public Lands Survey System
Scotts Bluff, NE All
Sioux, NE All lands except those located north of Township 26 North, and east of Range 57 West using the Bureau of Land Management's Public Lands Survey System
Goshen, WY All lands except those located north of Township 27 North using the Bureau of Land Management's Public Lands Survey System
Laramie, WY All lands except those located south of Township 14 North, and west of Range 64 West using the Bureau of Land Management's Public Lands Survey System
Platte, WY All lands except those located north of Township 27 North using the Bureau of Land Management's Public Lands Survey System
341st Missile Wing, Malmstrom Air Force Base Missile Field (Montana) Blaine, MT All lands except those located north of Township 24 North using the Bureau of Land Management's Public Lands Survey System
Cascade, MT All
Chouteau, MT All lands except those located north of Township 24 North, and east of Range 8 East using the Bureau of Land Management's Public Lands Survey System
Fergus, MT All lands except those located east of Range 26 East using the Bureau of Land Management's Public Lands Survey System
Glacier, MT All lands located south of Township 35 North, and east of Range 7 West, using the Bureau of Land Management's Public Lands Survey System
Golden Valley, MT All lands except those located south of Township 11 North, and east of Range 20 East using the Bureau of Land Management's Public Lands Survey System
Judith Basin, MT All
Lewis and Clark, MT All lands except those located south of Township 14 North using the Bureau of Land Management's Public Lands Survey System
Liberty, MT All lands except those located north of Township 31 North, and east of Range 5 East using the Bureau of Land Management's Public Lands Survey System
Meagher, MT All lands except those located south of Township 12 North, and west of Range 9 East using the Bureau of Land Management's Public Lands Survey System
Musselshell, MT All lands located north of Township 10 North, and west of Range 23 East using the Bureau of Land Management's Public Lands Survey System
Petroleum, MT All lands located west of Range 27 East using the Bureau of Land Management's Public Lands Survey System
Phillips, MT All lands located south of Township 23 North, and west of Range 25 East using the Bureau of Land Management's Public Lands Survey System
Pondera, MT All lands except those located west of Range 9 West, using the Bureau of Land Management's Public Lands Survey System
Stillwater, MT All lands located north of Township 3 North, and west of Range 20 East using the Bureau of Land Management's Public Lands Survey System
Sweet Grass, MT All lands located north of Township 3 North, and east of Range 12 East using the Bureau of Land Management's Public Lands Survey System
Teton, MT All lands except those located west of Range 10 West using the Bureau of Land Management's Public Lands Survey System
Toole, MT All lands except those located north of Township 34 North using the Bureau of Land Management's Public Lands Survey System
Wheatland, MT All
91st Missile Wing, Minot Air Force Base Missile Field (North Dakota) Bottineau, ND All lands except those located east of Range 77 West using the Bureau of Land Management's Public Lands Survey System
Burke, ND All lands except those located west of Range 93 West using the Bureau of Land Management's Public Lands Survey System
Dunn, ND All lands located north of Township 148 North, using the Bureau of Land Management's Public Lands Survey System
McHenry, ND All lands except those located north of Township 156 North, and east of Range 80 West using the Bureau of Land Management's Public Lands Survey System
McKenzie, ND All lands located east of Range 95 West, using the Bureau of Land Management's Public Lands Survey System
McLean, ND All lands except those located south of Township 145 North using the Bureau of Land Management's Public Lands Survey System
Mercer, ND All lands located north of Township 145 North, east of Range 90 West, using the Bureau of Land Management's Public Lands Survey System
Mountrail, ND All
Pierce, ND All lands located south of Township 155 North, west of Range 72 West using the Bureau of Land Management's Public Lands Survey System
Renville, ND All
Sheridan, ND All lands except those located south of Township 148 North, and east of Range 78 West using the Bureau of Land Management's Public Lands Survey System
Ward, ND All lands except those located north of Township 155 North, and east of Range 83 West using the Bureau of Land Management's Public Lands Survey System
Williams, ND All lands located south of Township 158 North, and east of Range 96 West using the Bureau of Land Management's Public Lands Survey System

Is the real estate located within any part of a military installation, within 12 nautical miles seaward of the coastline of the United States, listed below? (The CFIUS Geographic Reference Tool may be used to assist in determining the proximity of the real estate to US government facilities.)

Yes

No

 

Facility Location
Boston Range Complex Offshore Massachusetts, New Hampshire, Maine
Boston Operating Area Offshore Massachusetts, New Hampshire, Maine
Charleston Operating Area Offshore North Carolina, South Carolina
Cherry Point Operating Area Offshore North Carolina, South Carolina
Corpus Christi Operating Area Offshore Texas
Eglin Gulf Test and Training Range Offshore Florida
Gulf of Mexico Range Complex Offshore Mississippi, Alabama, Florida
Hawaii Range Complex Offshore Hawaii
Jacksonville Operating Area Offshore Florida, Georgia
Jacksonville Range Complex Offshore Florida
Key West Operating Area Offshore Florida
Key West Range Complex Offshore Florida
Narragansett Bay Range Complex Offshore Connecticut, Massachusetts, New York, Rhode Island
Narragansett Bay Operating Area Offshore Connecticut, Massachusetts, New York, Rhode Island
New Orleans Operating Area Offshore Louisiana
Northern California Range Complex Offshore California
Northwest Training Range Complex Offshore Oregon, Washington
Panama City Operating Area Offshore Florida
Pensacola Operating Area Offshore Alabama, Florida
Point Mugu Sea Range Offshore California
Southern California Range Complex Offshore California
Virginia Capes Operating Area Offshore Delaware, Maryland, North Carolina, Virginia
Virginia Capes Range Complex Offshore Delaware, Maryland, North Carolina, Virginia

Is the real estate located within, or will it function as part of, a covered port?

Yes

No

 

What is a "covered port"?

(a) The term covered port means, subject to paragraph (b) of this section, any port that is listed:

  • In the Department of Transportation, Federal Aviation Administration's annual final enplanement data as a "large hub airport," as that term is defined in 49 USC 40102(a)(29);
  • In the Department of Transportation, Federal Aviation Administration's annual final all-cargo landed weight data as an airport with annual aggregate all-cargo landed weight greater than 1.24 billion pounds;
  • By the Department of Transportation, Federal Aviation Administration as a "joint use airport," as that term is defined in 49 USC 47175(7);
  • By the Department of Transportation, Maritime Administration as a commercial strategic seaport within the National Port Readiness Network; or
  • By the Department of Transportation, Bureau of Transportation Statistics as a top 25 tonnage, container, or dry bulk port.

(b) For purposes of determining whether a port constitutes a covered port under paragraph (a) of this section,

  • Any port that is added after February 13, 2020 to any of the lists described in paragraph (a) of this section shall be deemed not to be in effect as a covered port until 30 days after the port's addition to the relevant list maintained by the Department of Transportation; and
  • In the context of a particular transaction, the covered ports in effect on the day immediately prior to, the earlier of, the date on which the parties sign a written document establishing the material terms of the transaction, or the completion date of the transaction, shall apply.

Is the foreign person a foreign air carrier?

Yes

No

 

What is a "foreign air carrier"?

A foreign air carrier is a person, not a citizen of the United States, undertaking by any means, directly or indirectly, to provide foreign air transportation, for whom the Department of Homeland Security, Transportation Security Administration has accepted a security program under 49 CFR 1546.105.

Is the lease or concession only in furtherance of the foreign person's activities as a foreign air carrier?

Yes

No

 

What is a "foreign air carrier"?

A foreign air carrier is a person, not a citizen of the United States, undertaking by any means, directly or indirectly, to provide foreign air transportation, for whom the Department of Homeland Security, Transportation Security Administration has accepted a security program under 49 CFR 1546.105.

According to the terms of the lease or concession, is the real estate only allowed to be used for the purpose of engaging in the retail sale of consumer goods or services to the public?

Yes

No

Is the real estate a single housing unit (which includes fixtures and adjacent land to the extent such fixtures and land are incidental to the use of the real estate as a single housing unit)?

Yes

No

Is the real estate within an urbanized area or urban cluster? (The CFIUS Geographic Reference Tool may be used to assist in determining whether the real estate is within an urbanized area or urban cluster.)

Yes

No

 

What is an "urbanized area"?

The term urbanized area means a statistical geographic area as identified in the most recent US Census consisting of a densely settled core created from census tracts or blocks and contiguous qualifying territory that together have a minimum population of at least 50,000 individuals.

 

What is an "urban cluster"?

The term urban cluster means a statistical geographic area as identified in the most recent US Census consisting of a densely settled core created from census tracts or blocks and contiguous qualifying territory that together have at least 2,500 individuals but fewer than 50,000 individuals.

Does the transaction involve the purchase or lease by, or concession to, a foreign person of commercial space within a multi-unit building?

Yes

No

Upon completion of the transaction, will (1) the foreign person and its affiliates, in the aggregate, hold, lease, or have a concession with respect to commercial space in such building that exceeds 10% of the total square footage of the commercial space of such building; or (2) the foreign person and its affiliates, each counted separately, represent more than 10% of the total number of tenants based on the number of ownership, lease, and concession arrangement for commercial space in the building?

Yes

No

Is the real estate that is the subject of the transaction (1) owned by an Alaska Native village, Native group, or Native Corporation as those terms are defined in the Alaska Native Claims Settlement Act at 43 USC 1602; or (2) held in trust by the United States for American Indians, Indian tribes, Alaska Natives, or any of the entities described in (1)?

Yes

No

 

What is the "Alaska Native Claims Settlement Act"?

The relevant part of the Alaska Native Claims Settlement Act (43 USC 1602) may be found here.

Could the transaction result in foreign control of a US business?

Yes

No

 

What is "control"?

(a) The term control means the power, direct or indirect, whether or not exercised, through the ownership of a majority or a dominant minority of the total outstanding voting interest in an entity, board representation, proxy voting, a special share, contractual arrangements, formal or informal arrangements to act in concert, or other means, to determine, direct, or decide important matters affecting an entity; in particular, but without limitation, to determine, direct, take, reach, or cause decisions regarding the following matters, or any other similarly important matters affecting an entity:

(1) The sale, lease, mortgage, pledge, or other transfer of any of the tangible or intangible principal assets of the entity, whether or not in the ordinary course of business;

(2) The reorganization, merger, or dissolution of the entity;

(3) The closing, relocation, or substantial alteration of the production, operational, or research and development facilities of the entity;

(4) Major expenditures or investments, issuances of equity or debt, or dividend payments by the entity, or approval of the operating budget of the entity;

(5) The selection of new business lines or ventures that the entity will pursue;

(6) The entry into, termination, or non-fulfillment by the entity of significant contracts;

(7) The policies or procedures of the entity governing the treatment of non-public technical, financial, or other proprietary information of the entity;

(8) The appointment or dismissal of officers or senior managers or, in the case of a partnership, the general partner;

(9) The appointment or dismissal of employees with access to critical technology or other sensitive technology or classified US Government information; or

(10) The amendment of the Articles of Incorporation, constituent agreement, or other organizational documents of the entity with respect to the matters described in paragraphs (a)(1) through (9) of this section.

(b) In examining questions of control in situations where more than one foreign person has an ownership interest in an entity, consideration will be given to factors such as whether the foreign persons are related or have formal or informal arrangements to act in concert, whether they are agencies or instrumentalities of the national or subnational governments of a single foreign state, and whether a given foreign person and another person that has an ownership interest in the entity are both controlled by any of the national or subnational governments of a single foreign state.

(c) The following minority shareholder protections shall not in themselves be deemed to confer control over an entity:

(1) The power to prevent the sale or pledge of all or substantially all of the assets of an entity or a voluntary filing for bankruptcy or liquidation;

(2) The power to prevent an entity from entering into contracts with majority investors or their affiliates;

(3) The power to prevent an entity from guaranteeing the obligations of majority investors or their affiliates;

(4) The right to purchase an additional interest in an entity to prevent the dilution of an investor's pro rata interest in that entity in the event that the entity issues additional instruments conveying interests in the entity;

(5) The power to prevent the change of existing legal rights or preferences of the particular class of stock held by minority investors, as provided in the relevant corporate documents governing such shares; and

(6) The power to prevent the amendment of the Articles of Incorporation, constituent agreement, or other organizational documents of an entity with respect to the matters described in paragraphs (c)(1) through (5) of this section.

(d) The Committee will consider, on a case-by-case basis, whether minority shareholder protections other than those listed in paragraph (c) of this section do not confer control over an entity.

Is the foreign investor an excepted investor (this is a very limited category that does not likely apply if the foreign investor or any of its parents are formed under the laws of, or have directors who are citizens of, a country that is not an excepted foreign state)?

Yes

No

 

What is an "excepted investor"?

The provisions defining an excepted investor, listed below, are very long and complex. To proceed through this analysis step by step, select the "Unsure" answer above.

(a) The term excepted investor means a foreign person who is, as of the completion date of the transaction and subject to paragraphs (c) and (d) of this section:

(1) A foreign national who is a national of one or more excepted foreign states and is not also a national of any foreign state that is not an excepted foreign state;

(2) A foreign government of an excepted foreign state; or

(3) A foreign entity that meets each of the following conditions with respect to itself and each of its parents (if any):

(i) Such entity is organized under the laws of an excepted foreign state or in the United States;

(ii) Such entity has its principal place of business in an excepted foreign state or in the United States;

(iii) Seventy-five percent or more of the members and 75 percent or more of the observers of the board of directors or equivalent governing body of such entity are:

(A) US nationals; or

(B) Nationals of one or more excepted foreign states who are not also nationals of any foreign state that is not an excepted foreign state;

(iv) Any foreign person that individually, and each foreign person that is part of a group of foreign persons that in the aggregate, holds 10 percent or more of the outstanding voting interest of such entity; holds the right to 10 percent or more of the profits of such entity; holds the right in the event of dissolution to 10 percent or more of the assets of such entity; or otherwise could exercise control over such entity, is:

(A) A foreign national who is a national of one or more excepted foreign states and is not also a national of any foreign state that is not an excepted foreign state;

(B) A foreign government of an excepted foreign state; or

(C) A foreign entity that is organized under the laws of an excepted foreign state and has its principal place of business in an excepted foreign state or in the United States; and

(v) The minimum excepted ownership of such entity is held, individually or in the aggregate, by one or more persons each of whom is:

(A) Not a foreign person;

(B) A foreign national who is a national of one or more excepted foreign states and is not also a national of any foreign state that is not an excepted foreign state;

(C) A foreign government of an excepted foreign state; or

(D) A foreign entity that is organized under the laws of an excepted foreign state and has its principal place of business in an excepted foreign state or in the United States.

(b) For purposes of paragraph (a)(3)(iv) of this section, foreign persons who are related, have formal or informal arrangements to act in concert, or are agencies or instrumentalities of, or controlled by, the national or subnational governments of a single foreign state are considered part of a group of foreign persons and their individual ownerships are aggregated.

(c) Notwithstanding paragraph (a) of this section, a foreign person is not an excepted investor with respect to a transaction if:

(1) In the five years prior to the completion date of the transaction the foreign person, any of its parents, or any entity of which it is a parent:

(i) Has received written notice from the Committee that it has submitted a material misstatement or omission in a notice or declaration or made a false certification under this part or part 801 or 802 of this title;

(ii) Has received written notice from the Committee that it has violated a material provision of a mitigation agreement entered into with, material condition imposed by, or an order issued by, the Committee or a lead agency under section 721(l);

(iii) Has been subject to action by the President under section 721(d);

(iv) Has:

(A) Received a written Finding of Violation or Penalty Notice imposing a civil monetary penalty from the Department of the Treasury, Office of Foreign Assets Control (OFAC); or

(B) Entered into a settlement agreement with OFAC with respect to apparent violations of US sanctions laws administered by OFAC, including the International Emergency Economic Powers Act, the Trading With the Enemy Act, the Foreign Narcotics Kingpin Designation Act, each as amended, or of any executive order, regulation, order, directive, or license issued pursuant thereto;

(v) Has received a written notice of debarment from the Department of State, Directorate of Defense Trade Controls, as described in 22 CFR parts 127 and 128;

(vi) Has been a respondent or party in a final order, including a settlement order, issued by the Department of Commerce, Bureau of Industry and Security (BIS) regarding violations of US export control laws administered by BIS, including the Export Control Reform Act of 2018 (50 USC 4801 et seq.), the EAR, or of any executive order, regulation, order, directive, or license issued pursuant thereto;

(vii) Has received a final decision from the Department of Energy, National Nuclear Security Administration imposing a civil penalty with respect to a violation of section 57 b. of the Atomic Energy Act of 1954, as implemented under 10 CFR part 810; or

(viii) Has been convicted of, or has entered into a deferred prosecution agreement or non­prosecution agreement with the Department of Justice with respect to, any felony in any jurisdiction within the United States; or

(2) The foreign person, any of its parents, or any entity of which it is a parent is, on the date on which the parties to the transaction first execute a binding written agreement, or other binding document, establishing the material terms of the transaction, listed on either the BIS Unverified List or Entity List in 15 CFR part 744.

(d) Irrespective of whether the foreign person satisfies the criteria in paragraph (a)(1) or (2), (a) (3)(i) through (iii), or (c)(1)(i) through (iii) of this section as of the completion date, if at any time during the three-year period following the completion date, the foreign person no longer meets all the criteria set forth in paragraph (a)(1) or (2), (a)(3)(i) through (iii), or (c)(1)(i) through (iii) of this section, the foreign person is not an excepted investor with respect to the transaction from the completion date onward. This paragraph does not apply when an excepted investor no longer meets any of the criteria solely due to a rescission of a determination under § 800.1001(b) or if the relevant foreign state otherwise ceases to be an excepted foreign state.

(e) A foreign person may waive its status as an excepted investor with respect to a transaction at any time by submitting a declaration under § 800.403 or filing a notice under § 800.501 regarding the transaction in which it explicitly waives such status. In such case, the foreign person will be deemed not to be an excepted investor with respect to the transaction and the relevant provisions of subpart D or E will apply.

Note 1 to § 800.219: See § 800.501(c)(2) regarding an agency notice where a foreign person is not an excepted investor solely due to § 800.219(d).

 

What is an "excepted foreign state"?

The term excepted foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

Does the transaction involve an air carrier?

Yes

No

 

What is an "air carrier"?

An air carrier is a citizen of the United States undertaking by any means, directly or indirectly, to provide air transportation.

Will the transaction afford the foreign investor access to any material nonpublic technical information in the possession of the TID US business?

Yes

No

 

What is "material nonpublic technical information"?

The term material nonpublic technical information means information that:

  • Provides knowledge, know-how, or understanding, in each case not available in the public domain, of the design, location, or operation of covered investment critical infrastructure, including vulnerability information such as that related to physical security or cybersecurity; or
  • Is not available in the public domain and is necessary to design, fabricate, develop, test, produce, or manufacture a critical technology, including processes, techniques, or methods.

The term material nonpublic technical information does not include financial information regarding the performance of an entity.

Will the transaction afford the foreign investor membership or observer rights on, or the right to nominate an individual to a position on, the board of directors or equivalent governing body of the US business?

Yes

No

Will the transaction afford the foreign investor any involvement, other than through voting of shares, in substantive decisionmaking of the US business regarding: (1) the use, development, acquisition, safekeeping, or release of sensitive personal data of US citizens maintained or collected by the US business; (2) the use, development, acquisition, or release of critical technologies; or (3) the management, operation, manufacture, or supply of covered investment critical infrastructure?

Yes

No

 

What is "substantive decisionmaking"?

(a) The term substantive decisionmaking means the process through which decisions regarding significant matters affecting an entity are undertaken, including, as applicable:

(1) Pricing, sales, and specific contracts, including the license, sale, or transfer of sensitive personal data to any third party, including pursuant to a customer, vendor, or joint venture agreement;

(2) Supply arrangements;

(3) Corporate strategy and business development;

(4) Research and development, including location and budget allocation;

(5) Manufacturing locations;

(6) Access to critical technologies, covered investment critical infrastructure, material nonpublic technical information, or sensitive personal data, including pursuant to a customer, vendor, or joint venture agreement;

(7) Physical and cyber security protocols, including the storage and protection of critical technologies, covered investment critical infrastructure, or sensitive personal data;

(8) Practices, policies, and procedures governing the collection, use, or storage of sensitive personal data, including:

(i) The establishment or maintenance of, or changes to, the architecture of information technology systems and networks used in collecting or maintaining sensitive personal data; or

(ii) Privacy policies and agreements for individuals from whom sensitive personal data is collected setting forth parameters regarding whether and how sensitive personal data may be collected, maintained, accessed, or disseminated; or

(9) Strategic partnerships.

(b) The term substantive decisionmaking does not include strictly administrative decisions.

 

What are "critical technologies"?

The term critical technologies means the following:

 

What is a "covered investment critical infrastructure"?

The assets listed in the definition of covered investment critical infrastructure are listed in the table below. In summary, they include the following:

  • telecoms: certain internet protocol networks, telecommunications and information services, internet exchange points, submarine cable systems and related facilities (including certain data centers);
  • power: certain systems for the generation, transmission, distribution, or storage of electric energy comprising the bulk-power system, industrial control systems utilized therefor, and certain electric storage resources physically connected to the bulk-power system;
  • oil and gas: certain refineries, crude oil storage facilities, liquid natural gas (LNG) import or export terminals, natural gas underground storage facilities or LNG peak-shaving facilities, interstate oil and natural gas pipelines, and industrial control systems therefor;
  • water: certain public water systems and treatment works, and industrial control systems therefor;
  • finance: certain systemically important financial market utilities, securities and options exchanges, and core processing services providers;
  • defense industrial base: fiber optic cables that directly serve certain military installations; facilities that provide electric power generation, transmission, distribution, or storage directly to or located on certain military installations and industrial control systems therefor; public water systems or treatment works directly serving certain military installations and industrial control systems therefor; interstate oil pipelines that directly serve the strategic petroleum reserve; rail lines and associated connector lines designated as part of the Department of Defense's (DOD) Strategic Rail Corridor Network; satellites or satellite systems providing services directly to DOD and its components; facilities in the United States that manufacture certain specialty metals, covered materials, chemical weapons antidotes, and carbon, alloy, and armor steel plate; and – other than commercially available off-the-shelf items – certain industrial resources manufactured or operated for a Major Defense Acquisition Program, Major System, or "DX" priority-rated contract or order, or funded by the Title III program, Industrial Base Fund, Rapid Innovation Fund, Manufacturing Technology Program, Defense Logistics Agency (DLA) Warstopper Program, or a DLA Surge and Sustainment contract; and
  • ports: airports and maritime ports that are subject to CFIUS's new real estate jurisdiction.

Under the CFIUS regulations, the term covered investment critical infrastructure means the following systems and assets, whether physical or virtual:

(i) Any:

(a) internet protocol network that has access to every other internet protocol network solely via settlement-free peering; or

(b) telecommunications service or information service, each as defined in section 3(a)(2) of the Communications Act of 1934, as amended (47 USC 153), or fiber optic cable, in each case that directly serves any military installation identified in § 802.227.

(ii) Any internet exchange point that supports public peering.

(iii) Any submarine cable system requiring a license under section 1 of the Cable Landing License Act of 1921 (47 USC 34), which includes any associated submarine cable, submarine cable landing facilities, and any facility that performs network management, monitoring, maintenance, or other operational functions for such submarine cable system.

(iv) Any submarine cable, landing facility, or facility that performs network management, monitoring, maintenance, or other operational function that is part of a submarine cable system described above in item (iii) of column 1 of this appendix A.

(v) Any data center that is collocated at a submarine cable landing point, landing station, or termination station.

(vi) Any satellite or satellite system providing services directly to the Department of Defense or any component thereof.

(vii) Any industrial resource other than commercially available off-the-shelf items, as defined in section 4203(a) of the National Defense Authorization Act for Fiscal Year 1996, as amended (41 USC 104), that is manufactured or operated for a Major Defense Acquisition Program, as defined in section 7(b)(2)(A) of the Defense Technical Corrections Act of 1987, as amended (10 USC 2430), or a Major System, as defined in 10 USC 2302d, as amended, and:

(a) the US business is a "single source," "sole source," or "strategic multisource," to the extent the US business has been notified of such status; or

(b) the industrial resource:

(1) requires 12 months or more to manufacture; or

(2) is a "long lead" item, to the extent the US business has been notified that such industrial resource is a "long lead" item.

(viii) Any industrial resource, other than commercially available off-the-shelf items, as defined in section 4203(a) of the National Defense Authorization Act for Fiscal Year 1996, as amended (41 USC 104), that is manufactured under a "DX" priority rated contract or order under the Defense Priorities and Allocations System regulation (15 CFR part 700, as amended) in the preceding 24 months.

(ix) Any facility in the United States that manufactures:

(a) specialty metal, as defined in section 842(a)(1)(i) of the John Warner National Defense Authorization Act for Fiscal Year 2007, as amended (10 USC 2533b);

(b) covered material, as defined in 10 USC 2533c, as amended;

(c) chemical weapons antidote contained in automatic injectors, as described in 10 USC 2534, as amended; or

(d) carbon, alloy, and armor steel plate that is in Federal Supply Class 9515 or is described by specifications of the American Society for Testing Materials or the American Iron and Steel Institute.

(x) Any industrial resource other than commercially available off-the-shelf items, as defined in 41 USC 104, as amended, that has been funded, in whole or in part, by any of the following sources in the last 60 months:

(a) Defense Production Act of 1950 Title III program, as amended (50 USC 4501 et seq .);

(b) Industrial Base Fund under section 896(b)(1) of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011, as amended (10 USC 2508);

(c) Rapid Innovation Fund under section 1073 of Ike Skelton National Defense Authorization Act for Fiscal Year 2011, as amended (10 USC 2359a);

(d) Manufacturing Technology Program under 10 USC 2521, as amended;

(e) Defense Logistics Agency Warstopper Program, as described in DLA Instruction 1212, Industrial Capabilities Program - Manage the WarStopper Program; or

(f) Defense Logistics Agency Surge and Sustainment contract, as described in Subpart 17.93 of the Defense Logistics Acquisition Directive.

(xi) Any system, including facilities, for the generation, transmission, distribution, or storage of electric energy comprising the bulk-power system, as defined in section 215(a)(1) of the Federal Power Act, as amended (16 USC 824o(a)(1)).

(xii) Any electric storage resource, as defined in 18 CFR 35.28(b)(9), as amended, that is physically connected to the bulk-power system.

(xiii) Any facility that provides electric power generation, transmission, distribution, or storage directly to or located on any military installation identified in § 802.227.

(xiv) Any industrial control system utilized by:

(a) system comprising the bulk-power system as described above in item (xi) of column 1 of this appendix A; or

(b) a facility directly serving any military installation as described above in item (xiii) of column 1 of this appendix A.

(xv) Any:

(a) any individual refinery with the capacity to produce 300,000 or more barrels per day (or equivalent) of refined oil or gas products; or

(b) collection of one or more refineries owned or operated by a single US business with the capacity to produce, in the aggregate, 500,000 or more barrels per day (or equivalent) of refined oil or gas products.

(xvi) Any crude oil storage facility with the capacity to hold 30 million barrels or more of crude oil.

(xvii) Any:

(a) liquefied natural gas (LNG) import or export terminal requiring:

(1) approval under section 3(e) of the Natural Gas Act, as amended (15 USC 717b(e)), or

(2) a license under section 4 of the Deepwater Port Act of 1974, as amended (33 USC 1503); or

(b) natural gas underground storage facility or LNG peak-shaving facility requiring a certificate of public convenience and necessity under section 7 of the Natural Gas Act, as amended (15 USC 717f).

(xviii) Any financial market utility that the Financial Stability Oversight Council has designated as systemically important under section 804 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, as amended (12 USC 5463).

(xix) Any exchange registered under section 6 of the Securities Exchange Act of 1934, as amended (15 USC 78f), that facilitates trading in any national market system security, as defined in 17 CFR § 242.600, as amended, and which exchange during at least four of the preceding six calendar months had:

(a) with respect to all national market system securities that are not options, 10 percent or more of the average daily dollar volume reported by applicable transaction reporting plans; or

(b) with respect to all listed options, 15 percent or more of the average daily dollar volume reported by applicable national market system plans for reporting transactions in listed options.

(xx) Any technology service provider in the Significant Service Provider Program of the Federal Financial Institutions Examination Council that provides core processing services.

(xxi) Any rail line and associated connector line designated as part of the Department of Defense's Strategic Rail Corridor Network.

(xxii) Any interstate oil pipeline that:

(a) has the capacity to transport:

(1) 500,000 barrels per day or more of crude oil, or

(2) 90 million gallons per day or more of refined petroleum product; or

(b) directly serves the strategic petroleum reserve, as defined in section 152 of the Energy Policy and Conservation Act, as amended (42 USC 6232).

(xxiii) Any interstate natural gas pipeline with an outside diameter of 20 or more inches.

(xxiv) Any industrial control system utilized by :

(a) an interstate oil pipeline as described above in item (xxii) of column 1 of this appendix A; or

(b) an interstate natural gas pipeline as described above in item (xxiii) of column 1 of this appendix A.

(xxv) Any airport identified in § 802.210(a)(1) through (3).

(xxvi) Any:

(a) maritime port identified in § 802.210(a)(4) or (5); or

(b) any individual terminal at such maritime ports.

(xxvii) Any public water system, as defined in section 1401(4) of the Safe Drinking Water Act, as amended (42 USC 300f(4)(A)), or treatment works, as defined in section 212(2)(A) of the Clean Water Act, as amended (33 USC 1292(2)), which:

(a) regularly serves 10,000 individuals or more, or

(b) directly serves any military installation identified in § 802.227.

(xxviii) Any industrial control system utilized by a public water system or treatment works as described above in item (xxvii) of column 1 of this appendix A.

Is the foreign investor an excepted investor (this is a very limited category that does not likely apply if the foreign investor or any of its parents are formed under the laws of, or have directors who are citizens of, a country that is not an excepted foreign state)?

Yes

No

 

What is an "excepted investor"?

The provisions defining an excepted investor, listed below, are very long and complex. To proceed through this analysis step by step, select the "Unsure" answer above.

(a) The term excepted investor means a foreign person who is, as of the completion date of the transaction and subject to paragraphs (c) and (d) of this section:

(1) A foreign national who is a national of one or more excepted foreign states and is not also a national of any foreign state that is not an excepted foreign state;

(2) A foreign government of an excepted foreign state; or

(3) A foreign entity that meets each of the following conditions with respect to itself and each of its parents (if any):

(i) Such entity is organized under the laws of an excepted foreign state or in the United States;

(ii) Such entity has its principal place of business in an excepted foreign state or in the United States;

(iii) Seventy-five percent or more of the members and 75 percent or more of the observers of the board of directors or equivalent governing body of such entity are:

(A) US nationals; or

(B) Nationals of one or more excepted foreign states who are not also nationals of any foreign state that is not an excepted foreign state;

(iv) Any foreign person that individually, and each foreign person that is part of a group of foreign persons that in the aggregate, holds 10 percent or more of the outstanding voting interest of such entity; holds the right to 10 percent or more of the profits of such entity; holds the right in the event of dissolution to 10 percent or more of the assets of such entity; or otherwise could exercise control over such entity, is:

(A) A foreign national who is a national of one or more excepted foreign states and is not also a national of any foreign state that is not an excepted foreign state;

(B) A foreign government of an excepted foreign state; or

(C) A foreign entity that is organized under the laws of an excepted foreign state and has its principal place of business in an excepted foreign state or in the United States; and

(v) The minimum excepted ownership of such entity is held, individually or in the aggregate, by one or more persons each of whom is:

(A) Not a foreign person;

(B) A foreign national who is a national of one or more excepted foreign states and is not also a national of any foreign state that is not an excepted foreign state;

(C) A foreign government of an excepted foreign state; or

(D) A foreign entity that is organized under the laws of an excepted foreign state and has its principal place of business in an excepted foreign state or in the United States.

(b) For purposes of paragraph (a)(3)(iv) of this section, foreign persons who are related, have formal or informal arrangements to act in concert, or are agencies or instrumentalities of, or controlled by, the national or subnational governments of a single foreign state are considered part of a group of foreign persons and their individual ownerships are aggregated.

(c) Notwithstanding paragraph (a) of this section, a foreign person is not an excepted investor with respect to a transaction if:

(1) In the five years prior to the completion date of the transaction the foreign person, any of its parents, or any entity of which it is a parent:

(i) Has received written notice from the Committee that it has submitted a material misstatement or omission in a notice or declaration or made a false certification under this part or part 801 or 802 of this title;

(ii) Has received written notice from the Committee that it has violated a material provision of a mitigation agreement entered into with, material condition imposed by, or an order issued by, the Committee or a lead agency under section 721(l);

(iii) Has been subject to action by the President under section 721(d);

(iv) Has:

(A) Received a written Finding of Violation or Penalty Notice imposing a civil monetary penalty from the Department of the Treasury, Office of Foreign Assets Control (OFAC); or

(B) Entered into a settlement agreement with OFAC with respect to apparent violations of US sanctions laws administered by OFAC, including the International Emergency Economic Powers Act, the Trading With the Enemy Act, the Foreign Narcotics Kingpin Designation Act, each as amended, or of any executive order, regulation, order, directive, or license issued pursuant thereto;

(v) Has received a written notice of debarment from the Department of State, Directorate of Defense Trade Controls, as described in 22 CFR parts 127 and 128;

(vi) Has been a respondent or party in a final order, including a settlement order, issued by the Department of Commerce, Bureau of Industry and Security (BIS) regarding violations of US export control laws administered by BIS, including the Export Control Reform Act of 2018 (50 USC 4801 et seq.), the EAR, or of any executive order, regulation, order, directive, or license issued pursuant thereto;

(vii) Has received a final decision from the Department of Energy, National Nuclear Security Administration imposing a civil penalty with respect to a violation of section 57 b. of the Atomic Energy Act of 1954, as implemented under 10 CFR part 810; or

(viii) Has been convicted of, or has entered into a deferred prosecution agreement or non­prosecution agreement with the Department of Justice with respect to, any felony in any jurisdiction within the United States; or

(2) The foreign person, any of its parents, or any entity of which it is a parent is, on the date on which the parties to the transaction first execute a binding written agreement, or other binding document, establishing the material terms of the transaction, listed on either the BIS Unverified List or Entity List in 15 CFR part 744.

(d) Irrespective of whether the foreign person satisfies the criteria in paragraph (a)(1) or (2), (a) (3)(i) through (iii), or (c)(1)(i) through (iii) of this section as of the completion date, if at any time during the three-year period following the completion date, the foreign person no longer meets all the criteria set forth in paragraph (a)(1) or (2), (a)(3)(i) through (iii), or (c)(1)(i) through (iii) of this section, the foreign person is not an excepted investor with respect to the transaction from the completion date onward. This paragraph does not apply when an excepted investor no longer meets any of the criteria solely due to a rescission of a determination under § 800.1001(b) or if the relevant foreign state otherwise ceases to be an excepted foreign state.

(e) A foreign person may waive its status as an excepted investor with respect to a transaction at any time by submitting a declaration under § 800.403 or filing a notice under § 800.501 regarding the transaction in which it explicitly waives such status. In such case, the foreign person will be deemed not to be an excepted investor with respect to the transaction and the relevant provisions of subpart D or E will apply.

Note 1 to § 800.219: See § 800.501(c)(2) regarding an agency notice where a foreign person is not an excepted investor solely due to § 800.219(d).

 

What is an "excepted foreign state"?

The term excepted foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

Does the transaction involve an air carrier?

Yes

No

 

What is an "air carrier"?

An air carrier is a citizen of the United States undertaking by any means, directly or indirectly, to provide air transportation.

Will the foreign investor acquire, directly or indirectly, 25% or more of the voting interests of the US business?

Yes

No

 

How is this calculated?

For purposes of determining the percentage of voting interest held indirectly by one entity in another entity, any voting interest of a parent will be deemed to be a 100% voting interest in any entity of which it is a parent.

 

What is a "parent"?

(a) The term parent means, with respect to an entity:

(1) A person who or which directly or indirectly:

(i) Holds or will hold at least 50 percent of the outstanding voting interest in the entity; or

(ii) Holds or will hold the right to at least 50 percent of the profits of the entity, or has or will have the right in the event of dissolution to at least 50 percent of the assets of the entity; or

(2) The general partner, managing member, or equivalent of the entity.

(b) Any entity that meets the conditions of paragraph (a)(1) or (2) of this section with respect to another entity (i.e., the intermediate parent) is also a parent of any other entity of which the intermediate parent is a parent.

Does a foreign government hold, directly or indirectly, a voting interest of 49% or more in the foreign investor (calculated as described below)?

Yes

No

 

How is this calculated?

For purposes of determining the percentage of voting interest held indirectly by one entity in another entity, any voting interest of a parent will be deemed to be a 100% voting interest in any entity of which it is a parent. Thus, for this analysis, dilution throughout the ownership chain that would otherwise result from parent ownership interests less than 100% is not recognized.

In the case of an entity with a general partner, managing member, or equivalent, the national or subnational governments of a single foreign state will be considered to have met the 49% threshold only if they hold 49% or more of the interest in the general partner, managing member, or equivalent of the entity — foreign government limited partner interests are disregarded.

 

What is a "parent"?

(a) The term parent means, with respect to an entity:

(1) A person who or which directly or indirectly:

(i) Holds or will hold at least 50 percent of the outstanding voting interest in the entity; or

(ii) Holds or will hold the right to at least 50 percent of the profits of the entity, or has or will have the right in the event of dissolution to at least 50 percent of the assets of the entity; or

(2) The general partner, managing member, or equivalent of the entity.

(b) Any entity that meets the conditions of paragraph (a)(1) or (2) of this section with respect to another entity (i.e., the intermediate parent) is also a parent of any other entity of which the intermediate parent is a parent.

Is the foreign government the government of an excepted foreign state?

Yes

No

 

What is an "excepted foreign state"?

The term excepted foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

Is the investment being made by an investment fund?

Yes

No

 

What is an "investment fund"?

The term investment fund means any entity that is an "investment company," as defined in section 3(a) of the Investment Company Act of 1940 (15 USC 80a-1 et seq.), or would be an "investment company" but for one or more of the exemptions provided in section 3(b) or 3(c) thereunder.

Is the fund managed exclusively by a general partner, a managing member, or an equivalent?

Yes

No

Is the general partner, managing member, or equivalent that exclusively manages the fund a foreign person?

Yes

No

With respect to an advisory board or a committee of the fund on which any foreign person has membership as a limited partner, does the advisory board or committee have the ability to approve, disapprove, or otherwise control: (1) investment decisions of the investment fund; or (2) decisions made by the general partner, managing member, or equivalent related to entities in which the investment fund is invested?

Yes

No

With respect to an advisory board or a committee of the fund on which any foreign person has membership as a limited partner, will the foreign person otherwise have the ability to control the investment fund, including without limitation the authority: (1) to approve, disapprove, or otherwise control investment decisions of the investment fund; (2) to approve, disapprove, or otherwise control decisions made by the general partner, managing member, or equivalent related to entities in which the investment fund is invested; or (3) to unilaterally dismiss, prevent the dismissal of, select, or determine the compensation of the general partner, managing member, or equivalent?

Yes

No

As may have been previously asked, does the US business produce, design, test, manufacture, fabricate, or develop one or more critical technologies?

Yes

No

 

What are "critical technologies"?

The term critical technologies means the following:

Are such critical technologies utilized in connection with its activity in one or more of these industries?

Yes

No

 

What are "critical technologies"?

The term critical technologies means the following:

 

What are "these industries"?

Industry NAICS Code
Aircraft Manufacturing NAICS Code: 336411
Aircraft Engine and Engine Parts Manufacturing NAICS Code: 336412
Alumina Refining and Primary Aluminum Production NAICS Code: 331313
Ball and Roller Bearing Manufacturing NAICS Code: 332991
Computer Storage Device Manufacturing NAICS Code: 334112
Electronic Computer Manufacturing NAICS Code: 334111
Guided Missile and Space Vehicle Manufacturing NAICS Code: 336414
Guided Missile and Space Vehicle Propulsion Unit and Propulsion Unit Parts Manufacturing NAICS Code: 336415
Military Armored Vehicle, Tank, and Tank Component Manufacturing NAICS Code: 336992
Nuclear Electric Power Generation NAICS Code: 221113
Optical Instrument and Lens Manufacturing NAICS Code: 333314
Other Basic Inorganic Chemical Manufacturing NAICS Code: 325180
Other Guided Missile and Space Vehicle Parts and Auxiliary Equipment Manufacturing NAICS Code: 336419
Petrochemical Manufacturing NAICS Code: 325110
Petrochemical Manufacturing Powder Metallurgy Part Manufacturing NAICS Code: 332117
Power, Distribution, and Specialty Transformer Manufacturing NAICS Code: 335311
Primary Battery Manufacturing NAICS Code: 335912
Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing NAICS Code: 334220
Research and Development in Nanotechnology NAICS Code: 541713
Research and Development in Biotechnology (except Nanobiotechnology) NAICS Code: 541714
Secondary Smelting and Alloying of Aluminum NAICS Code: 331314
Search, Detection, Navigation, Guidance, Aeronautical, and Nautical System and Instrument Manufacturing NAICS Code: 334511
Semiconductor and Related Device Manufacturing NAICS Code: 334413
Semiconductor Machinery Manufacturing NAICS Code: 333242
Storage Battery Manufacturing NAICS Code: 335911
Telephone Apparatus Manufacturing NAICS Code: 334210
Turbine and Turbine Generator Set Units Manufacturing NAICS Code: 333611

Does the US business design critical technologies specifically for use in one or more of these industries (regardless of whether the critical technology also has application for other industries)?

Yes

No

 

What are "critical technologies"?

The term critical technologies means the following:

 

What are "these industries"?

Industry NAICS Code
Aircraft Manufacturing NAICS Code: 336411
Aircraft Engine and Engine Parts Manufacturing NAICS Code: 336412
Alumina Refining and Primary Aluminum Production NAICS Code: 331313
Ball and Roller Bearing Manufacturing NAICS Code: 332991
Computer Storage Device Manufacturing NAICS Code: 334112
Electronic Computer Manufacturing NAICS Code: 334111
Guided Missile and Space Vehicle Manufacturing NAICS Code: 336414
Guided Missile and Space Vehicle Propulsion Unit and Propulsion Unit Parts Manufacturing NAICS Code: 336415
Military Armored Vehicle, Tank, and Tank Component Manufacturing NAICS Code: 336992
Nuclear Electric Power Generation NAICS Code: 221113
Optical Instrument and Lens Manufacturing NAICS Code: 333314
Other Basic Inorganic Chemical Manufacturing NAICS Code: 325180
Other Guided Missile and Space Vehicle Parts and Auxiliary Equipment Manufacturing NAICS Code: 336419
Petrochemical Manufacturing NAICS Code: 325110
Petrochemical Manufacturing Powder Metallurgy Part Manufacturing NAICS Code: 332117
Power, Distribution, and Specialty Transformer Manufacturing NAICS Code: 335311
Primary Battery Manufacturing NAICS Code: 335912
Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing NAICS Code: 334220
Research and Development in Nanotechnology NAICS Code: 541713
Research and Development in Biotechnology (except Nanobiotechnology) NAICS Code: 541714
Secondary Smelting and Alloying of Aluminum NAICS Code: 331314
Search, Detection, Navigation, Guidance, Aeronautical, and Nautical System and Instrument Manufacturing NAICS Code: 334511
Semiconductor and Related Device Manufacturing NAICS Code: 334413
Semiconductor Machinery Manufacturing NAICS Code: 333242
Storage Battery Manufacturing NAICS Code: 335911
Telephone Apparatus Manufacturing NAICS Code: 334210
Turbine and Turbine Generator Set Units Manufacturing NAICS Code: 333611

Is the US business subject to a security control agreement, special security agreement, voting trust agreement, or proxy agreement pursuant to the National Industrial Security Program regulations?

Yes

No

 

What is the "National Industrial Security Program"?

The National Industry Security Program Operating Manual may be found here (PDF).

Is the US business operating under a valid facility security clearance pursuant to the National Industrial Security Program regulations?

Yes

No

 

What is the "National Industrial Security Program"?

The National Industry Security Program Operating Manual may be found here (PDF).

Does the US business produce, design, test, manufacture, fabricate, or develop only critical technologies eligible for export, reexport, or transfer pursuant to License Exception ENC of the EAR?

Yes

No

 

What are "critical technologies"?

The term critical technologies means the following:

 

What is the "License Exception ENC of the EAR"?

The License Exception ENC of the EAR is described here.

Is the investment being made by an investment fund?

Yes

No

 

What is an "investment fund"?

The term investment fund means any entity that is an "investment company," as defined in section 3(a) of the Investment Company Act of 1940 (15 USC 80a-1 et seq.), or would be an "investment company" but for one or more of the exemptions provided in section 3(b) or 3(c) thereunder.

Is the fund managed exclusively by a general partner, a managing member, or an equivalent?

Yes

No

Is the general partner, managing member, or equivalent that exclusively manages the fund a foreign person?

Yes

No

With respect to an advisory board or a committee of the fund on which any foreign person has membership as a limited partner, does the advisory board or committee have the ability to approve, disapprove, or otherwise control: (1) investment decisions of the investment fund; or (2) decisions made by the general partner, managing member, or equivalent related to entities in which the investment fund is invested?

Yes

No

With respect to an advisory board or a committee of the fund on which any foreign person has membership as a limited partner, will the foreign person otherwise have the ability to control the investment fund, including without limitation the authority: (1) to approve, disapprove, or otherwise control investment decisions of the investment fund; (2) to approve, disapprove, or otherwise control decisions made by the general partner, managing member, or equivalent related to entities in which the investment fund is invested; or (3) to unilaterally dismiss, prevent the dismissal of, select, or determine the compensation of the general partner, managing member, or equivalent?

Yes

No

The following questions are intended to determine whether the foreign investor qualifies as an Excepted Investor. If you are unsure of any answer in this step, you should presume that the foreign investor does not qualify as an Excepted Investor. Clicking "unsure" at any point in the Excepted Investor step will return you to the jurisdictional analysis with the presumption that the foreign investor is not an Excepted Investor.

Click here to continue.

Based on your responses, the foreign investor appears to qualify as an Excepted Investor, unless any of these caveats apply.

Click here to continue.

 

Caveats

A foreign person is not an excepted investor with respect to a transaction if:

  • In the five years prior to the completion date of the transaction the foreign person, any of its parents, or any entity of which it is a parent:
    • Has received written notice from the Committee that it has submitted a material misstatement or omission in a notice or declaration or made a false certification under this part or part 801 or 802 of this title;
    • Has received written notice from the Committee that it has violated a material provision of a mitigation agreement entered into with, material condition imposed by, or an order issued by, the Committee or a lead agency under section 721(l);
    • Has been subject to action by the President under section 721(d);
    • Has:
    • Has received a written notice of debarment from the Department of State, Directorate of Defense Trade Controls, as described in 22 CFR parts 127 and 128;
    • Has been a respondent or party in a final order, including a settlement order, issued by the Department of Commerce, Bureau of Industry and Security (BIS) regarding violations of US export control laws administered by BIS, including the Export Control Reform Act of 2018 (50 USC 4801 et seq.), the EAR, or of any executive order, regulation, order, directive, or license issued pursuant thereto;
    • Has received a final decision from the Department of Energy, National Nuclear Security Administration imposing a civil penalty with respect to a violation of section 57 b. of the Atomic Energy Act of 1954, as implemented under 10 CFR part 810; or
    • Has been convicted of, or has entered into a deferred prosecution agreement or non-prosecution agreement with the Department of Justice with respect to, any felony in any jurisdiction within the United States; or
  • The foreign person, any of its parents, or any entity of which it is a parent is, on the date on which the parties to the transaction first execute a binding written agreement, or other binding document, establishing the material terms of the transaction, listed on either the BIS Unverified List or Entity List in 15 CFR part 744.

Based on your responses, the foreign investor does not appear to qualify as an Excepted Investor.

Click here to return to the jurisdictional analysis with the presumption that the foreign investor is not an Excepted Investor.

The following questions are intended to determine whether the foreign investor qualifies as an Excepted Real Estate Investor. If you are unsure of any answer in this step, you should presume that the foreign investor does not qualify as an Excepted Real Estate Investor. Clicking "unsure" at any point in the Excepted Real Estate Investor step will return you to the jurisdictional analysis with the presumption that the foreign investor is not an Excepted Real Estate Investor.

Click here to continue.

Based on your responses, the foreign investor appears to qualify as an Excepted Real Estate Investor, unless any of these caveats apply.

Click here to continue.

 

Caveats

A foreign person is not an excepted real estate investor with respect to a transaction if:

  • In the five years prior to the completion date of the transaction the foreign person, any of its parents, or any entity of which it is a parent:
    • Has received written notice from the Committee that it has submitted a material misstatement or omission in a notice or declaration or made a false certification under this part or part 800 or 801 of this chapter;
    • Has received written notice from the Committee that it has violated a material provision of a mitigation agreement entered into with, material condition imposed by, or an order issued by, the Committee or a lead agency under section 721(l);
    • Has been subject to action by the President under section 721(d);
    • Has:
    • Has received a written notice of debarment from the Department of State, Directorate of Defense Trade Controls, as described in 22 CFR parts 127 and 128;
    • Has been a respondent or party in a final order, including a settlement order, issued by the Department of Commerce, Bureau of Industry and Security (BIS) regarding violations of US export control laws administered by BIS, including the Export Control Reform Act of 2018 (50 USC 4801 et seq) the Export Administration Regulations (15 CFR parts 730-774), or of any executive order, regulation, order, directive, or license issued pursuant thereto;
    • Has received a final decision from the Department of Energy, National Nuclear Security Administration imposing a civil penalty with respect to a violation of section 57 b. of the Atomic Energy Act of 1954, as implemented under 10 CFR part 810; or
    • Has been convicted of, or has entered into a deferred prosecution agreement or non-prosecution agreement with the Department of Justice with respect to, any felony in any jurisdiction within the United States; or
  • The foreign person, any of its parents, or any entity of which it is a parent is, on the date on which the parties to the transaction first execute a binding written agreement, or other binding document, establishing the material terms of the transaction, listed on either the BIS Unverified List or Entity List in 15 CFR part 744.

Based on your responses, the foreign investor does not appear to qualify as an Excepted Real Estate Investor.

Click here to continue.

Is the foreign investor an excepted real estate investor (this is a very limited category that does not likely apply if the foreign investor or any of its parents are formed under the laws of, or have directors who are citizens of, a country that is not an excepted real estate foreign state)?

Yes

No

 

What is an "excepted real estate investor"?

The provisions defining an excepted real estate investor, listed below, are very long and complex. To proceed through this analysis step by step, select the "Unsure" answer above.

(a) The term excepted real estate investor means a foreign person who is, as of the completion date of the transaction and subject to paragraphs (c) and (d) of this section:

(1) A foreign national who is a national of one or more excepted real estate foreign states and is not also a national of any foreign state that is not an excepted real estate foreign state;

(2) A foreign government of an excepted real estate foreign state; or

(3) A foreign entity that meets each of the following conditions with respect to itself and each of its parents (if any):

(i) Such entity is organized under the laws of an excepted real estate foreign state or in the United States;

(ii) Such entity has its principal place of business in an excepted real estate foreign state or in the United States;

(iii) Seventy-five percent or more of the members and 75 percent or more of the observers of the board of directors or equivalent governing body of such entity are:

(A) US nationals; or

(B) Nationals of one or more excepted real estate foreign states who are not also nationals of any foreign state that is not an excepted real estate foreign state;

(iv) Any foreign person that individually, and each foreign person that is part of a group of foreign persons that in the aggregate, holds 10 percent or more of the outstanding voting interest of such entity; holds the right to 10 percent or more of the profits of such entity; holds the right in the event of dissolution to 10 percent or more of the assets of such entity; or otherwise could exercise control over such entity, is:

(A) A foreign national who is a national of one or more excepted real estate foreign states and is not also a national of any foreign state that is not an excepted real estate foreign state;

(B) A foreign government of an excepted real estate foreign state; or

(C) A foreign entity that is organized under the laws of an excepted real estate foreign state and has its principal place of business in an excepted real estate foreign state or in the United States; and

(v) The minimum excepted ownership of such entity is held, individually or in the aggregate, by one or more persons each of whom is:

(A) Not a foreign person;

(B) A foreign national who is a national of one or more excepted real estate foreign states and is not also a national of any foreign state that is not an excepted real estate foreign state;

(C) A foreign government of an excepted real estate foreign state; or

(D) A foreign entity that is organized under the laws of an excepted real estate foreign state and has its principal place of business in an excepted real estate foreign state or in the United States.

(b) For purposes of paragraph (a)(3)(iv) of this section, foreign persons who are related, have formal or informal arrangements to act in concert, or are agencies or instrumentalities of, or controlled by, the national or subnational governments of a single foreign state are considered part of a group of foreign persons and their individual ownerships are aggregated.

(c) Notwithstanding paragraph (a) of this section, a foreign person is not an excepted real estate investor with respect to a transaction if:

(1) In the five years prior to the completion date of the transaction the foreign person, any of its parents, or any entity of which it is a parent:

(i) Has received written notice from the Committee that it has submitted a material misstatement or omission in a notice or declaration or made a false certification under this part or part 800 or 801 of this chapter;

(ii) Has received written notice from the Committee that it has violated a material provision of a mitigation agreement entered into with, material condition imposed by, or an order issued by, the Committee or a lead agency under section 721(l);

(iii) Has been subject to action by the President under section 721(d);

(iv) Has:

(A) Received a written Finding of Violation or Penalty Notice imposing a civil monetary penalty from the Department of the Treasury, Office of Foreign Assets Control (OFAC); or

(B) Entered into a settlement agreement with OFAC with respect to apparent violations of US sanctions laws administered by OFAC, including the International Emergency Economic Powers Act, the Trading With the Enemy Act, the Foreign Narcotics Kingpin Designation Act, each as amended, or of any executive order, regulation, order, directive, or license issued pursuant thereto;

(v) Has received a written notice of debarment from the Department of State, Directorate of Defense Trade Controls, as described in 22 CFR parts 127 and 128;

(vi) Has been a respondent or party in a final order, including a settlement order, issued by the Department of Commerce, Bureau of Industry and Security (BIS) regarding violations of US export control laws administered by BIS, including the Export Control Reform Act of 2018 (50 USC 4801 et seq) the Export Administration Regulations (15 CFR parts 730-774), or of any executive order, regulation, order, directive, or license issued pursuant thereto;

(vii) Has received a final decision from the Department of Energy, National Nuclear Security Administration imposing a civil penalty with respect to a violation of section 57 b. of the Atomic Energy Act of 1954, as implemented under 10 CFR part 810; or

(viii) Has been convicted of, or has entered into a deferred prosecution agreement or non-prosecution agreement with the Department of Justice with respect to, any felony in any jurisdiction within the United States; or

(2) The foreign person, any of its parents, or any entity of which it is a parent is, on the date on which the parties to the transaction first execute a binding written agreement, or other binding document, establishing the material terms of the transaction, listed on either the BIS Unverified List or Entity List in 15 CFR part 744.

(d) Irrespective of whether the foreign person satisfies the criteria in paragraph (a)(1) or (2), (a)(3)(i) through (iii), or (c)(1)(i) through (iii) of this section as of the completion date, if at any time during the three-year period following the completion date the foreign person no longer meets all the criteria set forth in paragraph (a)(1) or (2), (a)(3)(i) through (iii), or (c)(1)(i) through (iii) of this section, the foreign person is not an excepted real estate investor with respect to the transaction from the completion date onward. This paragraph does not apply when an excepted real estate investor no longer meets any of the criteria solely due to a rescission of a determination under § 802.1001(b) or if the relevant foreign state otherwise ceases to be an excepted real estate foreign state.

(e) A foreign person may waive its status as an excepted real estate investor with respect to a transaction at any time by submitting a declaration under § 802.401 or filing a notice under § 802.501 regarding the transaction in which it explicitly waives such status. In such case, the foreign person will be deemed not to be an excepted real estate investor with respect to the transaction, and the relevant provisions of subpart D or E will apply.

NOTE 1 TO § 802.215: See § 802.501(c)(2) regarding an agency notice where a foreign person is not an excepted real estate investor solely due to paragraph (d) of this section.

 

What is an "excepted real estate foreign state"?

The term excepted real estate foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

Is the foreign investor an individual who is a national of one or more excepted real estate foreign states?

Yes

No

* Clicking "Unsure" will return you to the jurisdictional analysis with the presumption that the foreign investor is not an Excepted Real Estate Investor.

 

What is an "excepted real estate foreign state"?

The term excepted real estate foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

Is the foreign investor also a national of a foreign state that is not an excepted real estate foreign state?

Yes

No

* Clicking "Unsure" will return you to the jurisdictional analysis with the presumption that the foreign investor is not an Excepted Real Estate Investor.

 

What is an "excepted real estate foreign state"?

The term excepted real estate foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

Is the foreign investor a foreign government of an excepted real estate foreign state?

Yes

No

* Clicking "Unsure" will return you to the jurisdictional analysis with the presumption that the foreign investor is not an Excepted Real Estate Investor.

 

What is an "excepted real estate foreign state"?

The term excepted real estate foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

Is the foreign investor, and each of its parents, if any, an entity that is organized under the laws of an excepted real estate foreign state or the United States?

Yes

No

* Clicking "Unsure" will return you to the jurisdictional analysis with the presumption that the foreign investor is not an Excepted Real Estate Investor.

 

What is a "parent"?

(a) The term parent means, with respect to an entity:

(1) A person who or which directly or indirectly:

(i) Holds or will hold at least 50 percent of the outstanding voting interest in the entity; or

(ii) Holds or will hold the right to at least 50 percent of the profits of the entity, or has or will have the right in the event of dissolution to at least 50 percent of the assets of the entity; or

(2) The general partner, managing member, or equivalent of the entity.

(b) Any entity that meets the conditions of paragraph (a)(1) or (2) of this section with respect to another entity (i.e., the intermediate parent) is also a parent of any other entity of which the intermediate parent is a parent.

 

What is an "excepted real estate foreign state"?

The term excepted real estate foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

Does the foreign investor, and each of its parents, if any, have its principal place of business in an excepted real estate foreign state or the United States?

Yes

No

* Clicking "Unsure" will return you to the jurisdictional analysis with the presumption that the foreign investor is not an Excepted Real Estate Investor.

 

What is the "principal place of business"?

(a) The term principal place of business means, subject to paragraph (b) of this section, the primary location where an entity's management directs, controls, or coordinates the entity's activities, or, in the case of an investment fund, where the fund's activities and investments are primarily directed, controlled, or coordinated by or on behalf of the general partner, managing member, or equivalent.

(b) If the location determined under paragraph (a) of this section is in the United States and the entity has represented to the US Government or a subnational government of the United States or any foreign government, in the most recent submission or filing to such government (other than a submission or filing to the Committee) in which the entity has identified its principal place of business, principal office and place of business, address of principal executive offices, address of headquarters, or equivalent, that any of the foregoing is outside the United States, then the location identified in such submission or filing is deemed for purposes of this definition to be the entity's principal place of business unless the entity can demonstrate that such location has changed to the United States since such submission or filing.

 

What is an "excepted real estate foreign state"?

The term excepted real estate foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

Are 75% or more of the members and 75% or more of the observers of the board of directors or equivalent governing body of the foreign investor, and each of its parents, if any, US nationals or, if foreign nationals, nationals of one or more excepted real estate foreign states and not also nationals of any foreign state that is not an excepted real estate foreign state?

Yes

No

* Clicking "Unsure" will return you to the jurisdictional analysis with the presumption that the foreign investor is not an Excepted Real Estate Investor.

 

What is a "parent"?

(a) The term parent means, with respect to an entity:

(1) A person who or which directly or indirectly:

(i) Holds or will hold at least 50 percent of the outstanding voting interest in the entity; or

(ii) Holds or will hold the right to at least 50 percent of the profits of the entity, or has or will have the right in the event of dissolution to at least 50 percent of the assets of the entity; or

(2) The general partner, managing member, or equivalent of the entity.

(b) Any entity that meets the conditions of paragraph (a)(1) or (2) of this section with respect to another entity (i.e., the intermediate parent) is also a parent of any other entity of which the intermediate parent is a parent.

 

What is an "excepted real estate foreign state"?

The term excepted real estate foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

Does any foreign person, individually or as part of a group of foreign persons in the aggregate, hold 10% or more of the outstanding voting interest of the foreign investor or any of its parents; the right to 10% percent or more of the profits of the foreign investor or any of its parents; the right in the event of dissolution to 10% or more of the assets of the foreign investor or any of its parents; or the ability to exercise control over the foreign investor or any of its parents (or any of the above with respect to each of the foreign investor's parents, if any)?

Yes

No

* Clicking "Unsure" will return you to the jurisdictional analysis with the presumption that the foreign investor is not an Excepted Real Estate Investor.

 

What is a "foreign person"?

The term foreign person means:

  • Any foreign national, foreign government, or foreign entity; or
  • Any entity over which control is exercised or exercisable by a foreign national, foreign government, or foreign entity.

Any entity over which control is exercised or exercisable by a foreign person is a foreign person.

 

When should groups of foreign persons be "aggregated"?

Foreign persons who are related, have formal or informal arrangements to act in concert, or are agencies or instrumentalities of, or controlled by, the national or subnational governments of a single foreign state are considered part of a group of foreign persons and their individual ownerships are aggregated.

 

What is a "parent"?

(a) The term parent means, with respect to an entity:

(1) A person who or which directly or indirectly:

(i) Holds or will hold at least 50 percent of the outstanding voting interest in the entity; or

(ii) Holds or will hold the right to at least 50 percent of the profits of the entity, or has or will have the right in the event of dissolution to at least 50 percent of the assets of the entity; or

(2) The general partner, managing member, or equivalent of the entity.

(b) Any entity that meets the conditions of paragraph (a)(1) or (2) of this section with respect to another entity (i.e., the intermediate parent) is also a parent of any other entity of which the intermediate parent is a parent.

Is each such foreign person at least one of the following: (1) a foreign national who is a national of one or more excepted real estate foreign states and is not also a national of any foreign state that is not an excepted real estate foreign state; (2) a foreign government of an excepted real estate foreign state; or (3) a foreign entity that is organized under the laws of an excepted real estate foreign state and has its principal place of business in an excepted real estate foreign state or in the United States?

Yes

No

* Clicking "Unsure" will return you to the jurisdictional analysis with the presumption that the foreign investor is not an Excepted Real Estate Investor.

 

What is an "excepted real estate foreign state"?

The term excepted real estate foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

 

What is the "principal place of business"?

(a) The term principal place of business means, subject to paragraph (b) of this section, the primary location where an entity's management directs, controls, or coordinates the entity's activities, or, in the case of an investment fund, where the fund's activities and investments are primarily directed, controlled, or coordinated by or on behalf of the general partner, managing member, or equivalent.

(b) If the location determined under paragraph (a) of this section is in the United States and the entity has represented to the US Government or a subnational government of the United States or any foreign government, in the most recent submission or filing to such government (other than a submission or filing to the Committee) in which the entity has identified its principal place of business, principal office and place of business, address of principal executive offices, address of headquarters, or equivalent, that any of the foregoing is outside the United States, then the location identified in such submission or filing is deemed for purposes of this definition to be the entity's principal place of business unless the entity can demonstrate that such location has changed to the United States since such submission or filing.

Are the foreign investor's equity securities primarily traded on an exchange in an excepted real estate foreign state or the United States?

Yes

No

* Clicking "Unsure" will return you to the jurisdictional analysis with the presumption that the foreign investor is not an Excepted Real Estate Investor.

 

What is an "excepted real estate foreign state"?

The term excepted real estate foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

Are 80% or more of the foreign investor's voting interest, the right to 80% or more of its profits, and the right in the event of dissolution to 80% or more of its assets held, individually or in the aggregate, by one or more persons, each of whom is (1) a person who is not a foreign person, (2) a foreign national who is a national of one or more excepted real estate foreign states and is not also a national of any foreign state that is not an excepted real estate foreign state, (3) a foreign government of an excepted real estate foreign state, or (4) an entity that is organized under the laws of an excepted real estate foreign state and has its principal place of business in an excepted real estate foreign state or in the United States?

No

* Clicking "Unsure" will return you to the jurisdictional analysis with the presumption that the foreign investor is not an Excepted Real Estate Investor.

 

When should groups of foreign persons be "aggregated"?

Foreign persons who are related, have formal or informal arrangements to act in concert, or are agencies or instrumentalities of, or controlled by, the national or subnational governments of a single foreign state are considered part of a group of foreign persons and their individual ownerships are aggregated.

 

What is a "foreign person"?

The term foreign person means:

  • Any foreign national, foreign government, or foreign entity; or
  • Any entity over which control is exercised or exercisable by a foreign national, foreign government, or foreign entity.

Any entity over which control is exercised or exercisable by a foreign person is a foreign person.

 

What is a "foreign national"?

The term foreign national means any individual other than a US national.

 

What is an "excepted real estate foreign state"?

The term excepted real estate foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

 

What is the "principal place of business"?

(a) The term principal place of business means, subject to paragraph (b) of this section, the primary location where an entity's management directs, controls, or coordinates the entity's activities, or, in the case of an investment fund, where the fund's activities and investments are primarily directed, controlled, or coordinated by or on behalf of the general partner, managing member, or equivalent.

(b) If the location determined under paragraph (a) of this section is in the United States and the entity has represented to the US Government or a subnational government of the United States or any foreign government, in the most recent submission or filing to such government (other than a submission or filing to the Committee) in which the entity has identified its principal place of business, principal office and place of business, address of principal executive offices, address of headquarters, or equivalent, that any of the foregoing is outside the United States, then the location identified in such submission or filing is deemed for purposes of this definition to be the entity's principal place of business unless the entity can demonstrate that such location has changed to the United States since such submission or filing.

Are a majority of the foreign investor's voting interest, the right to a majority of its profits, and the right in the event of dissolution to a majority of its assets held, individually or in the aggregate, by one or more persons, each of whom is (1) a person who is not a foreign person, (2) a foreign national who is a national of one or more excepted real estate foreign states and is not also a national of any foreign state that is not an excepted real estate foreign state, (3) a foreign government of an excepted real estate foreign state, or (4) an entity that is organized under the laws of an excepted real estate foreign state and has its principal place of business in an excepted real estate foreign state or in the United States?

No

* Clicking "Unsure" will return you to the jurisdictional analysis with the presumption that the foreign investor is not an Excepted Real Estate Investor.

 

When should groups of foreign persons be "aggregated"?

Foreign persons who are related, have formal or informal arrangements to act in concert, or are agencies or instrumentalities of, or controlled by, the national or subnational governments of a single foreign state are considered part of a group of foreign persons and their individual ownerships are aggregated.

 

What is a "foreign person"?

The term foreign person means:

  • Any foreign national, foreign government, or foreign entity; or
  • Any entity over which control is exercised or exercisable by a foreign national, foreign government, or foreign entity.

Any entity over which control is exercised or exercisable by a foreign person is a foreign person.

 

What is a "foreign national"?

The term foreign national means any individual other than a US national.

 

What is an "excepted real estate foreign state"?

The term excepted real estate foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

 

What is the "principal place of business"?

(a) The term principal place of business means, subject to paragraph (b) of this section, the primary location where an entity's management directs, controls, or coordinates the entity's activities, or, in the case of an investment fund, where the fund's activities and investments are primarily directed, controlled, or coordinated by or on behalf of the general partner, managing member, or equivalent.

(b) If the location determined under paragraph (a) of this section is in the United States and the entity has represented to the US Government or a subnational government of the United States or any foreign government, in the most recent submission or filing to such government (other than a submission or filing to the Committee) in which the entity has identified its principal place of business, principal office and place of business, address of principal executive offices, address of headquarters, or equivalent, that any of the foregoing is outside the United States, then the location identified in such submission or filing is deemed for purposes of this definition to be the entity's principal place of business unless the entity can demonstrate that such location has changed to the United States since such submission or filing.

Are this parent's equity securities primarily traded on an exchange in an excepted real estate foreign state or the United States?

Yes

No

* Clicking "Unsure" will return you to the jurisdictional analysis with the presumption that the foreign investor is not an Excepted Real Estate Investor.

 

What is a "parent"?

(a) The term parent means, with respect to an entity:

(1) A person who or which directly or indirectly:

(i) Holds or will hold at least 50 percent of the outstanding voting interest in the entity; or

(ii) Holds or will hold the right to at least 50 percent of the profits of the entity, or has or will have the right in the event of dissolution to at least 50 percent of the assets of the entity; or

(2) The general partner, managing member, or equivalent of the entity.

(b) Any entity that meets the conditions of paragraph (a)(1) or (2) of this section with respect to another entity (i.e., the intermediate parent) is also a parent of any other entity of which the intermediate parent is a parent.

 

What is an "excepted real estate foreign state"?

The term excepted real estate foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

Are 80% or more of this parent's voting interest, the right to 80% or more of its profits, and the right in the event of dissolution to 80% or more of its assets held, individually or in the aggregate, by one or more persons, each of whom is (1) a person who is not a foreign person, (2) a foreign national who is a national of one or more excepted real estate foreign states and is not also a national of any foreign state that is not an excepted foreign state, (3) a foreign government of an excepted real estate foreign state, or (4) a foreign entity that is organized under the laws of an excepted real estate foreign state and has its principal place of business in an excepted real estate foreign state or in the United States?

No

* Clicking "Unsure" will return you to the jurisdictional analysis with the presumption that the foreign investor is not an Excepted Real Estate Investor.

 

What is a "parent"?

(a) The term parent means, with respect to an entity:

(1) A person who or which directly or indirectly:

(i) Holds or will hold at least 50 percent of the outstanding voting interest in the entity; or

(ii) Holds or will hold the right to at least 50 percent of the profits of the entity, or has or will have the right in the event of dissolution to at least 50 percent of the assets of the entity; or

(2) The general partner, managing member, or equivalent of the entity.

(b) Any entity that meets the conditions of paragraph (a)(1) or (2) of this section with respect to another entity (i.e., the intermediate parent) is also a parent of any other entity of which the intermediate parent is a parent.

 

When should groups of foreign persons be "aggregated"?

Foreign persons who are related, have formal or informal arrangements to act in concert, or are agencies or instrumentalities of, or controlled by, the national or subnational governments of a single foreign state are considered part of a group of foreign persons and their individual ownerships are aggregated.

 

What is a "foreign person"?

The term foreign person means:

  • Any foreign national, foreign government, or foreign entity; or
  • Any entity over which control is exercised or exercisable by a foreign national, foreign government, or foreign entity.

Any entity over which control is exercised or exercisable by a foreign person is a foreign person.

 

What is a "foreign national"?

The term foreign national means any individual other than a US national.

 

What is an "excepted real estate foreign state"?

The term excepted real estate foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

 

What is the "principal place of business"?

(a) The term principal place of business means, subject to paragraph (b) of this section, the primary location where an entity's management directs, controls, or coordinates the entity's activities, or, in the case of an investment fund, where the fund's activities and investments are primarily directed, controlled, or coordinated by or on behalf of the general partner, managing member, or equivalent.

(b) If the location determined under paragraph (a) of this section is in the United States and the entity has represented to the US Government or a subnational government of the United States or any foreign government, in the most recent submission or filing to such government (other than a submission or filing to the Committee) in which the entity has identified its principal place of business, principal office and place of business, address of principal executive offices, address of headquarters, or equivalent, that any of the foregoing is outside the United States, then the location identified in such submission or filing is deemed for purposes of this definition to be the entity's principal place of business unless the entity can demonstrate that such location has changed to the United States since such submission or filing.

Are a majority of this parent's voting interest, the right to a majority of its profits, and the right in the event of dissolution to a majority of its assets held, individually or in the aggregate, by one or more persons, each of whom is (1) a person who is not a foreign person, (2) a foreign national who is a national of one or more excepted real estate foreign states and is not also a national of any foreign state that is not an excepted real estate foreign state, (3) a foreign government of an excepted real estate foreign state, or (4) a foreign entity that is organized under the laws of an excepted real estate foreign state and has its principal place of business in an excepted real estate foreign state or in the United States?

No

* Clicking "Unsure" will return you to the jurisdictional analysis with the presumption that the foreign investor is not an Excepted Real Estate Investor.

 

What is a "parent"?

(a) The term parent means, with respect to an entity:

(1) A person who or which directly or indirectly:

(i) Holds or will hold at least 50 percent of the outstanding voting interest in the entity; or

(ii) Holds or will hold the right to at least 50 percent of the profits of the entity, or has or will have the right in the event of dissolution to at least 50 percent of the assets of the entity; or

(2) The general partner, managing member, or equivalent of the entity.

(b) Any entity that meets the conditions of paragraph (a)(1) or (2) of this section with respect to another entity (i.e., the intermediate parent) is also a parent of any other entity of which the intermediate parent is a parent.

 

When should groups of foreign persons be "aggregated"?

Foreign persons who are related, have formal or informal arrangements to act in concert, or are agencies or instrumentalities of, or controlled by, the national or subnational governments of a single foreign state are considered part of a group of foreign persons and their individual ownerships are aggregated.

 

What is a "foreign person"?

The term foreign person means:

  • Any foreign national, foreign government, or foreign entity; or
  • Any entity over which control is exercised or exercisable by a foreign national, foreign government, or foreign entity.

Any entity over which control is exercised or exercisable by a foreign person is a foreign person.

 

What is a "foreign national"?

The term foreign national means any individual other than a US national.

 

What is an "excepted real estate foreign state"?

The term excepted real estate foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

 

What is the "principal place of business"?

(a) The term principal place of business means, subject to paragraph (b) of this section, the primary location where an entity's management directs, controls, or coordinates the entity's activities, or, in the case of an investment fund, where the fund's activities and investments are primarily directed, controlled, or coordinated by or on behalf of the general partner, managing member, or equivalent.

(b) If the location determined under paragraph (a) of this section is in the United States and the entity has represented to the US Government or a subnational government of the United States or any foreign government, in the most recent submission or filing to such government (other than a submission or filing to the Committee) in which the entity has identified its principal place of business, principal office and place of business, address of principal executive offices, address of headquarters, or equivalent, that any of the foregoing is outside the United States, then the location identified in such submission or filing is deemed for purposes of this definition to be the entity's principal place of business unless the entity can demonstrate that such location has changed to the United States since such submission or filing.

Is the foreign investor an individual who is a national of one or more excepted foreign states?

Yes

No

* Clicking "Unsure" will return you to the jurisdictional analysis with the presumption that the foreign investor is not an Excepted Investor.

 

What is an "excepted foreign state"?

The term excepted foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

Is the foreign investor also a national of a foreign state that is not an excepted foreign state?

Yes

No

* Clicking "Unsure" will return you to the jurisdictional analysis with the presumption that the foreign investor is not an Excepted Investor.

 

What is an "excepted foreign state"?

The term excepted foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

Is the foreign investor a foreign government of an excepted foreign state?

Yes

No

* Clicking "Unsure" will return you to the jurisdictional analysis with the presumption that the foreign investor is not an Excepted Investor.

 

What is an "excepted foreign state"?

The term excepted foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

Is the foreign investor, and each of its parents, if any, an entity that is organized under the laws of an excepted foreign state or the United States?

Yes

No

* Clicking "Unsure" will return you to the jurisdictional analysis with the presumption that the foreign investor is not an Excepted Investor.

 

What is a "parent"?

(a) The term parent means, with respect to an entity:

(1) A person who or which directly or indirectly:

(i) Holds or will hold at least 50 percent of the outstanding voting interest in the entity; or

(ii) Holds or will hold the right to at least 50 percent of the profits of the entity, or has or will have the right in the event of dissolution to at least 50 percent of the assets of the entity; or

(2) The general partner, managing member, or equivalent of the entity.

(b) Any entity that meets the conditions of paragraph (a)(1) or (2) of this section with respect to another entity (i.e., the intermediate parent) is also a parent of any other entity of which the intermediate parent is a parent.

 

What is an "excepted foreign state"?

The term excepted foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

Does the foreign investor, and each of its parents, if any, have its principal place of business in an excepted foreign state or the United States?

Yes

No

* Clicking "Unsure" will return you to the jurisdictional analysis with the presumption that the foreign investor is not an Excepted Investor.

 

What is a "parent"?

(a) The term parent means, with respect to an entity:

(1) A person who or which directly or indirectly:

(i) Holds or will hold at least 50 percent of the outstanding voting interest in the entity; or

(ii) Holds or will hold the right to at least 50 percent of the profits of the entity, or has or will have the right in the event of dissolution to at least 50 percent of the assets of the entity; or

(2) The general partner, managing member, or equivalent of the entity.

(b) Any entity that meets the conditions of paragraph (a)(1) or (2) of this section with respect to another entity (i.e., the intermediate parent) is also a parent of any other entity of which the intermediate parent is a parent.

 

What is the "principal place of business"?

(a) The term principal place of business means, subject to paragraph (b) of this section, the primary location where an entity's management directs, controls, or coordinates the entity's activities, or, in the case of an investment fund, where the fund's activities and investments are primarily directed, controlled, or coordinated by or on behalf of the general partner, managing member, or equivalent.

(b) If the location determined under paragraph (a) of this section is in the United States and the entity has represented to the US Government or a subnational government of the United States or any foreign government, in the most recent submission or filing to such government (other than a submission or filing to the Committee) in which the entity has identified its principal place of business, principal office and place of business, address of principal executive offices, address of headquarters, or equivalent, that any of the foregoing is outside the United States, then the location identified in such submission or filing is deemed for purposes of this definition to be the entity's principal place of business unless the entity can demonstrate that such location has changed to the United States since such submission or filing.

 

What is an "excepted foreign state"?

The term excepted foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

Are 75% or more of the members and 75% or more of the observers of the board of directors or equivalent governing body of the foreign investor, and each of its parents, if any, US nationals or, if foreign nationals, nationals of one or more excepted foreign states and not also nationals of any foreign state that is not an excepted foreign state?

Yes

No

* Clicking "Unsure" will return you to the jurisdictional analysis with the presumption that the foreign investor is not an Excepted Investor.

 

What is a "parent"?

(a) The term parent means, with respect to an entity:

(1) A person who or which directly or indirectly:

(i) Holds or will hold at least 50 percent of the outstanding voting interest in the entity; or

(ii) Holds or will hold the right to at least 50 percent of the profits of the entity, or has or will have the right in the event of dissolution to at least 50 percent of the assets of the entity; or

(2) The general partner, managing member, or equivalent of the entity.

(b) Any entity that meets the conditions of paragraph (a)(1) or (2) of this section with respect to another entity (i.e., the intermediate parent) is also a parent of any other entity of which the intermediate parent is a parent.

 

What is an "excepted foreign state"?

The term excepted foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

Does any foreign person, individually or as part of a group of foreign persons in the aggregate, hold 10% or more of the outstanding voting interest of the foreign investor or any of its parents; the right to 10% percent or more of the profits of the foreign investor or any of its parents; the right in the event of dissolution to 10% or more of the assets of the foreign investor or any of its parents; or the ability to exercise control over the foreign investor or any of its parents (or any of the above with respect to each of the foreign investor's parents, if any)?

Yes

No

* Clicking "Unsure" will return you to the jurisdictional analysis with the presumption that the foreign investor is not an Excepted Investor.

 

What is a "foreign person"?

The term foreign person means:

  • Any foreign national, foreign government, or foreign entity; or
  • Any entity over which control is exercised or exercisable by a foreign national, foreign government, or foreign entity.

Any entity over which control is exercised or exercisable by a foreign person is a foreign person.

 

When should groups of foreign persons be "aggregated"?

Foreign persons who are related, have formal or informal arrangements to act in concert, or are agencies or instrumentalities of, or controlled by, the national or subnational governments of a single foreign state are considered part of a group of foreign persons and their individual ownerships are aggregated.

 

What is a "parent"?

(a) The term parent means, with respect to an entity:

(1) A person who or which directly or indirectly:

(i) Holds or will hold at least 50 percent of the outstanding voting interest in the entity; or

(ii) Holds or will hold the right to at least 50 percent of the profits of the entity, or has or will have the right in the event of dissolution to at least 50 percent of the assets of the entity; or

(2) The general partner, managing member, or equivalent of the entity.

(b) Any entity that meets the conditions of paragraph (a)(1) or (2) of this section with respect to another entity (i.e., the intermediate parent) is also a parent of any other entity of which the intermediate parent is a parent.

Is each such foreign person at least one of the following: (1) a foreign national who is a national of one or more excepted foreign states and is not also a national of any foreign state that is not an excepted foreign state; (2) a foreign government of an excepted foreign state; or (3) a foreign entity that is organized under the laws of an excepted foreign state and has its principal place of business in an excepted foreign state or in the United States?

Yes

No

* Clicking "Unsure" will return you to the jurisdictional analysis with the presumption that the foreign investor is not an Excepted Investor.

 

What is an "excepted foreign state"?

The term excepted foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

 

What is the "principal place of business"?

(a) The term principal place of business means, subject to paragraph (b) of this section, the primary location where an entity's management directs, controls, or coordinates the entity's activities, or, in the case of an investment fund, where the fund's activities and investments are primarily directed, controlled, or coordinated by or on behalf of the general partner, managing member, or equivalent.

(b) If the location determined under paragraph (a) of this section is in the United States and the entity has represented to the US Government or a subnational government of the United States or any foreign government, in the most recent submission or filing to such government (other than a submission or filing to the Committee) in which the entity has identified its principal place of business, principal office and place of business, address of principal executive offices, address of headquarters, or equivalent, that any of the foregoing is outside the United States, then the location identified in such submission or filing is deemed for purposes of this definition to be the entity's principal place of business unless the entity can demonstrate that such location has changed to the United States since such submission or filing.

Are the foreign investor's equity securities primarily traded on an exchange in an excepted foreign state or the United States?

Yes

No

* Clicking "Unsure" will return you to the jurisdictional analysis with the presumption that the foreign investor is not an Excepted Investor.

 

What is an "excepted foreign state"?

The term excepted foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

Are 80% or more of the foreign investor's voting interest, the right to 80% or more of its profits, and the right in the event of dissolution to 80% or more of its assets held, individually or in the aggregate, by one or more persons, each of whom is (1) a person who is not a foreign person, (2) a foreign national who is a national of one or more excepted foreign states and is not also a national of any foreign state that is not an excepted foreign state, (3) a foreign government of an excepted foreign state, or (4) an entity that is organized under the laws of an excepted foreign state and has its principal place of business in an excepted foreign state or in the United States?

No

* Clicking "Unsure" will return you to the jurisdictional analysis with the presumption that the foreign investor is not an Excepted Investor.

 

When should groups of foreign persons be "aggregated"?

Foreign persons who are related, have formal or informal arrangements to act in concert, or are agencies or instrumentalities of, or controlled by, the national or subnational governments of a single foreign state are considered part of a group of foreign persons and their individual ownerships are aggregated.

 

What is a "foreign person"?

The term foreign person means:

  • Any foreign national, foreign government, or foreign entity; or
  • Any entity over which control is exercised or exercisable by a foreign national, foreign government, or foreign entity.

Any entity over which control is exercised or exercisable by a foreign person is a foreign person.

 

What is a "foreign national"?

The term foreign national means any individual other than a US national.

 

What is an "excepted foreign state"?

The term excepted foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

 

What is the "principal place of business"?

(a) The term principal place of business means, subject to paragraph (b) of this section, the primary location where an entity's management directs, controls, or coordinates the entity's activities, or, in the case of an investment fund, where the fund's activities and investments are primarily directed, controlled, or coordinated by or on behalf of the general partner, managing member, or equivalent.

(b) If the location determined under paragraph (a) of this section is in the United States and the entity has represented to the US Government or a subnational government of the United States or any foreign government, in the most recent submission or filing to such government (other than a submission or filing to the Committee) in which the entity has identified its principal place of business, principal office and place of business, address of principal executive offices, address of headquarters, or equivalent, that any of the foregoing is outside the United States, then the location identified in such submission or filing is deemed for purposes of this definition to be the entity's principal place of business unless the entity can demonstrate that such location has changed to the United States since such submission or filing.

Are a majority of the foreign investor's voting interest, the right to a majority of its profits, and the right in the event of dissolution to a majority of its assets held, individually or in the aggregate, by one or more persons, each of whom is (1) a person who is not a foreign person, (2) a foreign national who is a national of one or more excepted foreign states and is not also a national of any foreign state that is not an excepted foreign state, (3) a foreign government of an excepted foreign state, or (4) an entity that is organized under the laws of an excepted foreign state and has its principal place of business in an excepted foreign state or in the United States?

No

* Clicking "Unsure" will return you to the jurisdictional analysis with the presumption that the foreign investor is not an Excepted Investor.

 

When should groups of foreign persons be "aggregated"?

Foreign persons who are related, have formal or informal arrangements to act in concert, or are agencies or instrumentalities of, or controlled by, the national or subnational governments of a single foreign state are considered part of a group of foreign persons and their individual ownerships are aggregated.

 

What is a "foreign person"?

The term foreign person means:

  • Any foreign national, foreign government, or foreign entity; or
  • Any entity over which control is exercised or exercisable by a foreign national, foreign government, or foreign entity.

Any entity over which control is exercised or exercisable by a foreign person is a foreign person.

 

What is a "foreign national"?

The term foreign national means any individual other than a US national.

 

What is an "excepted foreign state"?

The term excepted foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

 

What is the "principal place of business"?

(a) The term principal place of business means, subject to paragraph (b) of this section, the primary location where an entity's management directs, controls, or coordinates the entity's activities, or, in the case of an investment fund, where the fund's activities and investments are primarily directed, controlled, or coordinated by or on behalf of the general partner, managing member, or equivalent.

(b) If the location determined under paragraph (a) of this section is in the United States and the entity has represented to the US Government or a subnational government of the United States or any foreign government, in the most recent submission or filing to such government (other than a submission or filing to the Committee) in which the entity has identified its principal place of business, principal office and place of business, address of principal executive offices, address of headquarters, or equivalent, that any of the foregoing is outside the United States, then the location identified in such submission or filing is deemed for purposes of this definition to be the entity's principal place of business unless the entity can demonstrate that such location has changed to the United States since such submission or filing.

Are this parent's equity securities primarily traded on an exchange in an excepted foreign state or the United States?

Yes

No

* Clicking "Unsure" will return you to the jurisdictional analysis with the presumption that the foreign investor is not an Excepted Investor.

 

What is a "parent"?

(a) The term parent means, with respect to an entity:

(1) A person who or which directly or indirectly:

(i) Holds or will hold at least 50 percent of the outstanding voting interest in the entity; or

(ii) Holds or will hold the right to at least 50 percent of the profits of the entity, or has or will have the right in the event of dissolution to at least 50 percent of the assets of the entity; or

(2) The general partner, managing member, or equivalent of the entity.

(b) Any entity that meets the conditions of paragraph (a)(1) or (2) of this section with respect to another entity (i.e., the intermediate parent) is also a parent of any other entity of which the intermediate parent is a parent.

 

What is an "excepted foreign state"?

The term excepted foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

Are 80% or more of this parent's voting interest, the right to 80% or more of its profits, and the right in the event of dissolution to 80% or more of its assets held, individually or in the aggregate, by one or more persons, each of whom is (1) a person who is not a foreign person, (2) a foreign national who is a national of one or more excepted foreign states and is not also a national of any foreign state that is not an excepted foreign state, (3) a foreign government of an excepted foreign state, or (4) a foreign entity that is organized under the laws of an excepted foreign state and has its principal place of business in an excepted foreign state or in the United States?

No

* Clicking "Unsure" will return you to the jurisdictional analysis with the presumption that the foreign investor is not an Excepted Investor.

 

What is a "parent"?

(a) The term parent means, with respect to an entity:

(1) A person who or which directly or indirectly:

(i) Holds or will hold at least 50 percent of the outstanding voting interest in the entity; or

(ii) Holds or will hold the right to at least 50 percent of the profits of the entity, or has or will have the right in the event of dissolution to at least 50 percent of the assets of the entity; or

(2) The general partner, managing member, or equivalent of the entity.

(b) Any entity that meets the conditions of paragraph (a)(1) or (2) of this section with respect to another entity (i.e., the intermediate parent) is also a parent of any other entity of which the intermediate parent is a parent.

 

When should groups of foreign persons be "aggregated"?

Foreign persons who are related, have formal or informal arrangements to act in concert, or are agencies or instrumentalities of, or controlled by, the national or subnational governments of a single foreign state are considered part of a group of foreign persons and their individual ownerships are aggregated.

 

What is a "foreign person"?

The term foreign person means:

  • Any foreign national, foreign government, or foreign entity; or
  • Any entity over which control is exercised or exercisable by a foreign national, foreign government, or foreign entity.

Any entity over which control is exercised or exercisable by a foreign person is a foreign person.

 

What is a "foreign national"?

The term foreign national means any individual other than a US national.

 

What is an "excepted foreign state"?

The term excepted foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

 

What is the "principal place of business"?

(a) The term principal place of business means, subject to paragraph (b) of this section, the primary location where an entity's management directs, controls, or coordinates the entity's activities, or, in the case of an investment fund, where the fund's activities and investments are primarily directed, controlled, or coordinated by or on behalf of the general partner, managing member, or equivalent.

(b) If the location determined under paragraph (a) of this section is in the United States and the entity has represented to the US Government or a subnational government of the United States or any foreign government, in the most recent submission or filing to such government (other than a submission or filing to the Committee) in which the entity has identified its principal place of business, principal office and place of business, address of principal executive offices, address of headquarters, or equivalent, that any of the foregoing is outside the United States, then the location identified in such submission or filing is deemed for purposes of this definition to be the entity's principal place of business unless the entity can demonstrate that such location has changed to the United States since such submission or filing.

Are a majority of this parent's voting interest, the right to a majority of its profits, and the right in the event of dissolution to a majority of its assets held, individually or in the aggregate, by one or more persons, each of whom is (1) a person who is not a foreign person, (2) a foreign national who is a national of one or more excepted foreign states and is not also a national of any foreign state that is not an excepted foreign state, (3) a foreign government of an excepted foreign state, or (4) a foreign entity that is organized under the laws of an excepted foreign state and has its principal place of business in an excepted foreign state or in the United States?

No

* Clicking "Unsure" will return you to the jurisdictional analysis with the presumption that the foreign investor is not an Excepted Investor.

 

What is a "parent"?

(a) The term parent means, with respect to an entity:

(1) A person who or which directly or indirectly:

(i) Holds or will hold at least 50 percent of the outstanding voting interest in the entity; or

(ii) Holds or will hold the right to at least 50 percent of the profits of the entity, or has or will have the right in the event of dissolution to at least 50 percent of the assets of the entity; or

(2) The general partner, managing member, or equivalent of the entity.

(b) Any entity that meets the conditions of paragraph (a)(1) or (2) of this section with respect to another entity (i.e., the intermediate parent) is also a parent of any other entity of which the intermediate parent is a parent.

 

When should groups of foreign persons be "aggregated"?

Foreign persons who are related, have formal or informal arrangements to act in concert, or are agencies or instrumentalities of, or controlled by, the national or subnational governments of a single foreign state are considered part of a group of foreign persons and their individual ownerships are aggregated.

 

What is a "foreign person"?

The term foreign person means:

  • Any foreign national, foreign government, or foreign entity; or
  • Any entity over which control is exercised or exercisable by a foreign national, foreign government, or foreign entity.

Any entity over which control is exercised or exercisable by a foreign person is a foreign person.

 

What is a "foreign national"?

The term foreign national means any individual other than a US national.

 

What is an "excepted foreign state"?

The term excepted foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

 

What is the "principal place of business"?

(a) The term principal place of business means, subject to paragraph (b) of this section, the primary location where an entity's management directs, controls, or coordinates the entity's activities, or, in the case of an investment fund, where the fund's activities and investments are primarily directed, controlled, or coordinated by or on behalf of the general partner, managing member, or equivalent.

(b) If the location determined under paragraph (a) of this section is in the United States and the entity has represented to the US Government or a subnational government of the United States or any foreign government, in the most recent submission or filing to such government (other than a submission or filing to the Committee) in which the entity has identified its principal place of business, principal office and place of business, address of principal executive offices, address of headquarters, or equivalent, that any of the foregoing is outside the United States, then the location identified in such submission or filing is deemed for purposes of this definition to be the entity's principal place of business unless the entity can demonstrate that such location has changed to the United States since such submission or filing.

The following questions are intended to determine whether the foreign investor qualifies as an Excepted Investor. If you are unsure of any answer in this step, you should presume that the foreign investor does not qualify as an Excepted Investor. Clicking "unsure" at any point in the Excepted Investor step will return you to the voluntary/mandatory filing analysis with the presumption that the foreign investor is not an Excepted Investor.

Click here to continue.

Based on your responses, the foreign investor appears to qualify as an Excepted Investor, unless any of these caveats apply.

Click here to continue.

 

Caveats

A foreign person is not an excepted investor with respect to a transaction if:

  • In the five years prior to the completion date of the transaction the foreign person, any of its parents, or any entity of which it is a parent:
    • Has received written notice from the Committee that it has submitted a material misstatement or omission in a notice or declaration or made a false certification under this part or part 801 or 802 of this title;
    • Has received written notice from the Committee that it has violated a material provision of a mitigation agreement entered into with, material condition imposed by, or an order issued by, the Committee or a lead agency under section 721(l);
    • Has been subject to action by the President under section 721(d);
    • Has:
    • Has received a written notice of debarment from the Department of State, Directorate of Defense Trade Controls, as described in 22 CFR parts 127 and 128;
    • Has been a respondent or party in a final order, including a settlement order, issued by the Department of Commerce, Bureau of Industry and Security (BIS) regarding violations of US export control laws administered by BIS, including the Export Control Reform Act of 2018 (50 USC 4801 et seq.), the EAR, or of any executive order, regulation, order, directive, or license issued pursuant thereto;
    • Has received a final decision from the Department of Energy, National Nuclear Security Administration imposing a civil penalty with respect to a violation of section 57 b. of the Atomic Energy Act of 1954, as implemented under 10 CFR part 810; or
    • Has been convicted of, or has entered into a deferred prosecution agreement or non-prosecution agreement with the Department of Justice with respect to, any felony in any jurisdiction within the United States; or
  • The foreign person, any of its parents, or any entity of which it is a parent is, on the date on which the parties to the transaction first execute a binding written agreement, or other binding document, establishing the material terms of the transaction, listed on either the BIS Unverified List or Entity List in 15 CFR part 744.

Based on your responses, the foreign investor does not appear to qualify as an Excepted Investor.

Click here to return to the voluntary/mandatory filing analysis with the presumption that the foreign investor is not an Excepted Investor.

Is the foreign investor a national of one or more excepted foreign states?

Yes

No

* Clicking "Unsure" will return you to the voluntary/mandatory filing analysis with the presumption that the foreign investor is not an Excepted Investor.

 

What is an "excepted foreign state"?

The term excepted foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

Is the foreign investor also a national of a foreign state that is not an excepted foreign state?

Yes

No

* Clicking "Unsure" will return you to the voluntary/mandatory filing analysis with the presumption that the foreign investor is not an Excepted Investor.

 

What is an "excepted foreign state"?

The term excepted foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

Is the foreign investor a foreign government of an excepted foreign state?

Yes

No

* Clicking "Unsure" will return you to the voluntary/mandatory filing analysis with the presumption that the foreign investor is not an Excepted Investor.

 

What is an "excepted foreign state"?

The term excepted foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

Is the foreign investor, and each of its parents, if any, an entity that is organized under the laws of an excepted foreign state or the United States?

Yes

No

* Clicking "Unsure" will return you to the voluntary/mandatory filing analysis with the presumption that the foreign investor is not an Excepted Investor.

 

What is a "parent"?

(a) The term parent means, with respect to an entity:

(1) A person who or which directly or indirectly:

(i) Holds or will hold at least 50 percent of the outstanding voting interest in the entity; or

(ii) Holds or will hold the right to at least 50 percent of the profits of the entity, or has or will have the right in the event of dissolution to at least 50 percent of the assets of the entity; or

(2) The general partner, managing member, or equivalent of the entity.

(b) Any entity that meets the conditions of paragraph (a)(1) or (2) of this section with respect to another entity (i.e., the intermediate parent) is also a parent of any other entity of which the intermediate parent is a parent.

 

What is an "excepted foreign state"?

The term excepted foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

Does the foreign investor, and each of its parents, if any, have its principal place of business in an excepted foreign state or the United States?

Yes

No

* Clicking "Unsure" will return you to the voluntary/mandatory filing analysis with the presumption that the foreign investor is not an Excepted Investor.

 

What is a "parent"?

(a) The term parent means, with respect to an entity:

(1) A person who or which directly or indirectly:

(i) Holds or will hold at least 50 percent of the outstanding voting interest in the entity; or

(ii) Holds or will hold the right to at least 50 percent of the profits of the entity, or has or will have the right in the event of dissolution to at least 50 percent of the assets of the entity; or

(2) The general partner, managing member, or equivalent of the entity.

(b) Any entity that meets the conditions of paragraph (a)(1) or (2) of this section with respect to another entity (i.e., the intermediate parent) is also a parent of any other entity of which the intermediate parent is a parent.

 

What is the "principal place of business"?

(a) The term principal place of business means, subject to paragraph (b) of this section, the primary location where an entity's management directs, controls, or coordinates the entity's activities, or, in the case of an investment fund, where the fund's activities and investments are primarily directed, controlled, or coordinated by or on behalf of the general partner, managing member, or equivalent.

(b) If the location determined under paragraph (a) of this section is in the United States and the entity has represented to the US Government or a subnational government of the United States or any foreign government, in the most recent submission or filing to such government (other than a submission or filing to the Committee) in which the entity has identified its principal place of business, principal office and place of business, address of principal executive offices, address of headquarters, or equivalent, that any of the foregoing is outside the United States, then the location identified in such submission or filing is deemed for purposes of this definition to be the entity's principal place of business unless the entity can demonstrate that such location has changed to the United States since such submission or filing.

 

What is an "excepted foreign state"?

The term excepted foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

Are 75% or more of the members and 75% or more of the observers of the board of directors or equivalent governing body of the foreign investor, and each of its parents, if any, US nationals or, if foreign nationals, nationals of one or more excepted foreign states and not also nationals of any foreign state that is not an excepted foreign state?

Yes

No

* Clicking "Unsure" will return you to the voluntary/mandatory filing analysis with the presumption that the foreign investor is not an Excepted Investor.

 

What is a "parent"?

(a) The term parent means, with respect to an entity:

(1) A person who or which directly or indirectly:

(i) Holds or will hold at least 50 percent of the outstanding voting interest in the entity; or

(ii) Holds or will hold the right to at least 50 percent of the profits of the entity, or has or will have the right in the event of dissolution to at least 50 percent of the assets of the entity; or

(2) The general partner, managing member, or equivalent of the entity.

(b) Any entity that meets the conditions of paragraph (a)(1) or (2) of this section with respect to another entity (i.e., the intermediate parent) is also a parent of any other entity of which the intermediate parent is a parent.

 

What is an "excepted foreign state"?

The term excepted foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

Does any foreign person, individually or as part of a group of foreign persons in the aggregate, hold 10% or more of the outstanding voting interest of the foreign investor; the right to 10% percent or more of the profits of the foreign investor; the right in the event of dissolution to 10% or more of the assets of the foreign investor; or the ability to exercise control over the entity (or any of the above with respect to each of the foreign investor's parents, if any)?

Yes

No

* Clicking "Unsure" will return you to the voluntary/mandatory filing analysis with the presumption that the foreign investor is not an Excepted Investor.

 

What is a "foreign person"?

The term foreign person means:

  • Any foreign national, foreign government, or foreign entity; or
  • Any entity over which control is exercised or exercisable by a foreign national, foreign government, or foreign entity.

Any entity over which control is exercised or exercisable by a foreign person is a foreign person.

 

When should groups of foreign persons be "aggregated"?

Foreign persons who are related, have formal or informal arrangements to act in concert, or are agencies or instrumentalities of, or controlled by, the national or subnational governments of a single foreign state are considered part of a group of foreign persons and their individual ownerships are aggregated.

 

What is a "parent"?

(a) The term parent means, with respect to an entity:

(1) A person who or which directly or indirectly:

(i) Holds or will hold at least 50 percent of the outstanding voting interest in the entity; or

(ii) Holds or will hold the right to at least 50 percent of the profits of the entity, or has or will have the right in the event of dissolution to at least 50 percent of the assets of the entity; or

(2) The general partner, managing member, or equivalent of the entity.

(b) Any entity that meets the conditions of paragraph (a)(1) or (2) of this section with respect to another entity (i.e., the intermediate parent) is also a parent of any other entity of which the intermediate parent is a parent.

Is each such foreign person at least one of the following: (1) a foreign national who is a national of one or more excepted foreign states and is not also a national of any foreign state that is not an excepted foreign state; (2) a foreign government of an excepted foreign state; or (3) a foreign entity that is organized under the laws of an excepted foreign state and has its principal place of business in an excepted foreign state or in the United States?

Yes

No

* Clicking "Unsure" will return you to the voluntary/mandatory filing analysis with the presumption that the foreign investor is not an Excepted Investor.

 

What is an "excepted foreign state"?

The term excepted foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

 

What is the "principal place of business"?

(a) The term principal place of business means, subject to paragraph (b) of this section, the primary location where an entity's management directs, controls, or coordinates the entity's activities, or, in the case of an investment fund, where the fund's activities and investments are primarily directed, controlled, or coordinated by or on behalf of the general partner, managing member, or equivalent.

(b) If the location determined under paragraph (a) of this section is in the United States and the entity has represented to the US Government or a subnational government of the United States or any foreign government, in the most recent submission or filing to such government (other than a submission or filing to the Committee) in which the entity has identified its principal place of business, principal office and place of business, address of principal executive offices, address of headquarters, or equivalent, that any of the foregoing is outside the United States, then the location identified in such submission or filing is deemed for purposes of this definition to be the entity's principal place of business unless the entity can demonstrate that such location has changed to the United States since such submission or filing.

Are the foreign investor's equity securities primarily traded on an exchange in an excepted foreign state or the United States?

Yes

No

* Clicking "Unsure" will return you to the voluntary/mandatory filing analysis with the presumption that the foreign investor is not an Excepted Investor.

 

What is an "excepted foreign state"?

The term excepted foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

Are 80% or more of the foreign investor's voting interest, the right to 80% or more of its profits, and the right in the event of dissolution to 80% or more of its assets held, individually or in the aggregate, by (1) a person who is not a foreign person, (2) a foreign national who is a national of one or more excepted foreign states and is not also a national of any foreign state that is not an excepted foreign state, (3) a foreign government of an excepted foreign state, or (4) a foreign entity that is organized under the laws of an excepted foreign state and has its principal place of business in an excepted foreign state or in the United States?

No

* Clicking "Unsure" will return you to the voluntary/mandatory filing analysis with the presumption that the foreign investor is not an Excepted Investor.

 

When should groups of foreign persons be "aggregated"?

Foreign persons who are related, have formal or informal arrangements to act in concert, or are agencies or instrumentalities of, or controlled by, the national or subnational governments of a single foreign state are considered part of a group of foreign persons and their individual ownerships are aggregated.

 

What is a "foreign person"?

The term foreign person means:

  • Any foreign national, foreign government, or foreign entity; or
  • Any entity over which control is exercised or exercisable by a foreign national, foreign government, or foreign entity.

Any entity over which control is exercised or exercisable by a foreign person is a foreign person.

 

What is a "foreign national"?

The term foreign national means any individual other than a US national.

 

What is an "excepted foreign state"?

The term excepted foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

 

What is the "principal place of business"?

(a) The term principal place of business means, subject to paragraph (b) of this section, the primary location where an entity's management directs, controls, or coordinates the entity's activities, or, in the case of an investment fund, where the fund's activities and investments are primarily directed, controlled, or coordinated by or on behalf of the general partner, managing member, or equivalent.

(b) If the location determined under paragraph (a) of this section is in the United States and the entity has represented to the US Government or a subnational government of the United States or any foreign government, in the most recent submission or filing to such government (other than a submission or filing to the Committee) in which the entity has identified its principal place of business, principal office and place of business, address of principal executive offices, address of headquarters, or equivalent, that any of the foregoing is outside the United States, then the location identified in such submission or filing is deemed for purposes of this definition to be the entity's principal place of business unless the entity can demonstrate that such location has changed to the United States since such submission or filing.

Are a majority of the foreign investor's voting interest, the right to a majority of its profits, and the right in the event of dissolution to a majority of its assets held, individually or in the aggregate, by (1) a person who is not a foreign person, (2) a foreign national who is a national of one or more excepted foreign states and is not also a national of any foreign state that is not an excepted foreign state, (3) a foreign government of an excepted foreign state, or (4) a foreign entity that is organized under the laws of an excepted foreign state and has its principal place of business in an excepted foreign state or in the United States?

No

* Clicking "Unsure" will return you to the voluntary/mandatory filing analysis with the presumption that the foreign investor is not an Excepted Investor.

 

When should groups of foreign persons be "aggregated"?

Foreign persons who are related, have formal or informal arrangements to act in concert, or are agencies or instrumentalities of, or controlled by, the national or subnational governments of a single foreign state are considered part of a group of foreign persons and their individual ownerships are aggregated.

 

What is a "foreign person"?

The term foreign person means:

  • Any foreign national, foreign government, or foreign entity; or
  • Any entity over which control is exercised or exercisable by a foreign national, foreign government, or foreign entity.

Any entity over which control is exercised or exercisable by a foreign person is a foreign person.

 

What is a "foreign national"?

The term foreign national means any individual other than a US national.

 

What is an "excepted foreign state"?

The term excepted foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

 

What is the "principal place of business"?

(a) The term principal place of business means, subject to paragraph (b) of this section, the primary location where an entity's management directs, controls, or coordinates the entity's activities, or, in the case of an investment fund, where the fund's activities and investments are primarily directed, controlled, or coordinated by or on behalf of the general partner, managing member, or equivalent.

(b) If the location determined under paragraph (a) of this section is in the United States and the entity has represented to the US Government or a subnational government of the United States or any foreign government, in the most recent submission or filing to such government (other than a submission or filing to the Committee) in which the entity has identified its principal place of business, principal office and place of business, address of principal executive offices, address of headquarters, or equivalent, that any of the foregoing is outside the United States, then the location identified in such submission or filing is deemed for purposes of this definition to be the entity's principal place of business unless the entity can demonstrate that such location has changed to the United States since such submission or filing.

Are this parent's equity securities primarily traded on an exchange in an excepted foreign state or the United States?

Yes

No

* Clicking "Unsure" will return you to the voluntary/mandatory filing analysis with the presumption that the foreign investor is not an Excepted Investor.

 

What is a "parent"?

(a) The term parent means, with respect to an entity:

(1) A person who or which directly or indirectly:

(i) Holds or will hold at least 50 percent of the outstanding voting interest in the entity; or

(ii) Holds or will hold the right to at least 50 percent of the profits of the entity, or has or will have the right in the event of dissolution to at least 50 percent of the assets of the entity; or

(2) The general partner, managing member, or equivalent of the entity.

(b) Any entity that meets the conditions of paragraph (a)(1) or (2) of this section with respect to another entity (i.e., the intermediate parent) is also a parent of any other entity of which the intermediate parent is a parent.

 

What is an "excepted foreign state"?

The term excepted foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

Are 80% or more of this parent's voting interest, the right to 80% or more of its profits, and the right in the event of dissolution to 80% or more of its assets held, individually or in the aggregate, by (1) a person who is not a foreign person, (2) a foreign national who is a national of one or more excepted foreign states and is not also a national of any foreign state that is not an excepted foreign state, (3) a foreign government of an excepted foreign state, or (4) a foreign entity that is organized under the laws of an excepted foreign state and has its principal place of business in an excepted foreign state or in the United States?

No

* Clicking "Unsure" will return you to the voluntary/mandatory filing analysis with the presumption that the foreign investor is not an Excepted Investor.

 

What is a "parent"?

(a) The term parent means, with respect to an entity:

(1) A person who or which directly or indirectly:

(i) Holds or will hold at least 50 percent of the outstanding voting interest in the entity; or

(ii) Holds or will hold the right to at least 50 percent of the profits of the entity, or has or will have the right in the event of dissolution to at least 50 percent of the assets of the entity; or

(2) The general partner, managing member, or equivalent of the entity.

(b) Any entity that meets the conditions of paragraph (a)(1) or (2) of this section with respect to another entity (i.e., the intermediate parent) is also a parent of any other entity of which the intermediate parent is a parent.

 

When should groups of foreign persons be "aggregated"?

Foreign persons who are related, have formal or informal arrangements to act in concert, or are agencies or instrumentalities of, or controlled by, the national or subnational governments of a single foreign state are considered part of a group of foreign persons and their individual ownerships are aggregated.

 

What is a "foreign person"?

The term foreign person means:

  • Any foreign national, foreign government, or foreign entity; or
  • Any entity over which control is exercised or exercisable by a foreign national, foreign government, or foreign entity.

Any entity over which control is exercised or exercisable by a foreign person is a foreign person.

 

What is a "foreign national"?

The term foreign national means any individual other than a US national.

 

What is an "excepted foreign state"?

The term excepted foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

 

What is the "principal place of business"?

(a) The term principal place of business means, subject to paragraph (b) of this section, the primary location where an entity's management directs, controls, or coordinates the entity's activities, or, in the case of an investment fund, where the fund's activities and investments are primarily directed, controlled, or coordinated by or on behalf of the general partner, managing member, or equivalent.

(b) If the location determined under paragraph (a) of this section is in the United States and the entity has represented to the US Government or a subnational government of the United States or any foreign government, in the most recent submission or filing to such government (other than a submission or filing to the Committee) in which the entity has identified its principal place of business, principal office and place of business, address of principal executive offices, address of headquarters, or equivalent, that any of the foregoing is outside the United States, then the location identified in such submission or filing is deemed for purposes of this definition to be the entity's principal place of business unless the entity can demonstrate that such location has changed to the United States since such submission or filing.

Are a majority of this parent's voting interest, the right to a majority of its profits, and the right in the event of dissolution to a majority of its assets held, individually or in the aggregate, by (1) a person who is not a foreign person, (2) a foreign national who is a national of one or more excepted foreign states and is not also a national of any foreign state that is not an excepted foreign state, (3) a foreign government of an excepted foreign state, or (4) a foreign entity that is organized under the laws of an excepted foreign state and has its principal place of business in an excepted foreign state or in the United States?

No

* Clicking "Unsure" will return you to the voluntary/mandatory filing analysis with the presumption that the foreign investor is not an Excepted Investor.

 

What is a "parent"?

(a) The term parent means, with respect to an entity:

(1) A person who or which directly or indirectly:

(i) Holds or will hold at least 50 percent of the outstanding voting interest in the entity; or

(ii) Holds or will hold the right to at least 50 percent of the profits of the entity, or has or will have the right in the event of dissolution to at least 50 percent of the assets of the entity; or

(2) The general partner, managing member, or equivalent of the entity.

(b) Any entity that meets the conditions of paragraph (a)(1) or (2) of this section with respect to another entity (i.e., the intermediate parent) is also a parent of any other entity of which the intermediate parent is a parent.

 

When should groups of foreign persons be "aggregated"?

Foreign persons who are related, have formal or informal arrangements to act in concert, or are agencies or instrumentalities of, or controlled by, the national or subnational governments of a single foreign state are considered part of a group of foreign persons and their individual ownerships are aggregated.

 

What is a "foreign person"?

The term foreign person means:

  • Any foreign national, foreign government, or foreign entity; or
  • Any entity over which control is exercised or exercisable by a foreign national, foreign government, or foreign entity.

Any entity over which control is exercised or exercisable by a foreign person is a foreign person.

 

What is a "foreign national"?

The term foreign national means any individual other than a US national.

 

What is an "excepted foreign state"?

The term excepted foreign state means Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland.

 

What is the "principal place of business"?

(a) The term principal place of business means, subject to paragraph (b) of this section, the primary location where an entity's management directs, controls, or coordinates the entity's activities, or, in the case of an investment fund, where the fund's activities and investments are primarily directed, controlled, or coordinated by or on behalf of the general partner, managing member, or equivalent.

(b) If the location determined under paragraph (a) of this section is in the United States and the entity has represented to the US Government or a subnational government of the United States or any foreign government, in the most recent submission or filing to such government (other than a submission or filing to the Committee) in which the entity has identified its principal place of business, principal office and place of business, address of principal executive offices, address of headquarters, or equivalent, that any of the foregoing is outside the United States, then the location identified in such submission or filing is deemed for purposes of this definition to be the entity's principal place of business unless the entity can demonstrate that such location has changed to the United States since such submission or filing.

Parties to a formal written CFIUS notice must pay a filing fee to the US Treasury Department before the notice will be accepted for review. Filing fees are not required for declarations or for CFIUS-initiated "agency" notices, but they are required for a formal written notice that is requested by CFIUS following CFIUS's review of a declaration. To learn the amount of the applicable filing fee, select the value of the notified transaction:

 

To learn how transaction value is calculated, see 31 C.F.R. § 800.1103 (for covered transactions) or 31 C.F.R. § 802.1103 (for covered real estate transactions).

No filing fee applies.

A $750 filing fee applies.

A $7,500 filing fee applies.

A $75,000 filing fee applies.

A $150,000 filing fee applies.

A $300,000 filing fee applies.