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U.S. Department of the Treasury

Office of Public Affairs

Date: January 13, 2020

Contact: Treasury Public Affairs, (202) 622-2960

Frequently Asked Questions on Final CFIUS Regulations Implementing 

FIRRMA

General

Why is the Department of the Treasury issuing these regulations? 

The two rules published in the Federal Register on January 13, 2020, finalize the regulations 

relating to the Committee on Foreign Investment in the United States (CFIUS). The Department 

of the Treasury previously published proposed versions of the regulations, on which it received 

comments from the public. The regulations implement the Foreign Investment Risk Review 

Modernization Act of 2018 (FIRRMA), which was enacted with bipartisan support on August 

13, 2018. FIRRMA strengthens and modernizes CFIUS, an interagency committee authorized to 

review certain transactions involving foreign investment in the United States, in order to 

determine the effect of such transactions on the national security of the United States. The

regulations implement changes that FIRRMA made to CFIUS’s jurisdiction and review process. 

The Department of the Treasury published the regulations in two parts:

 Provisions Pertaining to Certain Investments in the United States by Foreign Persons:

These regulations replace the current regulations found at part 800 of title 31 of the Code 

of Federal Regulations (C.F.R.) and implement the changes that FIRRMA made to 

CFIUS’s jurisdiction and process with respect to transactions that could result in foreign 

control of any U.S. business, as well as certain non-controlling “covered investments” 

that afford a foreign person certain access, rights, or involvement in certain types of U.S. 

businesses.

 Provisions Pertaining to Certain Transactions by Foreign Persons Involving Real Estate 

in the United States: These regulations establish a new part 802 of title 31 of the C.F.R. 
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and implement the authority FIRRMA provided to CFIUS to review the purchase or lease 

by, or concession to, a foreign person of certain real estate in the United States.

Additionally, incorporated into both rules is an interim rule on the new definition for “principal 

place of business,” on which the Department of the Treasury is seeking public comments. 

When do these regulations become effective?

The two rules become effective on February 13, 2020. The interim rule that defines “principal 

place of business” also becomes effective on February 13, 2020. The Department of the 

Treasury is seeking public comments on this definition, and it may be amended based upon 

comments received.

Is the United States still open to foreign investment?

The United States welcomes foreign investment and remains one of the most open countries in 

the world to foreign investors. The United States is also one of the best places to invest, having 

adopted strong economic growth policies and maintained a strong innovation ecosystem and 

highly developed market. The specificity provided in the regulations gives clarity to the business 

and investment communities with respect to the types of transactions that are covered by the 

Committee’s new authority under FIRRMA. The CFIUS process, as modernized and 

strengthened by FIRRMA and these regulations, should enhance confidence in the nation’s 

longstanding open investment policy.

How do the final regulations differ from the proposed regulations issued in September 

2019? 

The Department of the Treasury published proposed versions of the regulations in September 

2019, and received comments from the public. The Department of the Treasury considered each 

comment submitted during the public comment period and made a number of revisions in 

response to the comments. The preambles to the final rules contain summaries of these changes.

In response to written comments, the final rules update a number of provisions including:

 adding a definition for “principal place of business;” 

 modifying certain criteria to qualify as an “excepted investor;” 

 clarifying the application of the “incremental acquisition rule;” 

 adjusting the treatment of genetic data within the definition of “sensitive personal data;”

 refining the application to investment funds, including by amending the definition of 

“substantial interest;”

 modifying the exceptions for certain real estate transactions in airports and maritime 

ports; and 

 refining the geographic coverage relating to certain military installations on appendix A 

to the real estate regulations.

The rules also include a number of additional illustrative examples and provide clarifying edits in 

the text of the provisions. 

Finally, the rule amending the part 800 regulations incorporates many of the provisions of the 

pilot program regarding critical technologies (published in October 2018), including the 
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mandatory declaration requirement for certain covered transactions involving certain U.S. 

businesses that produce, design, test, manufacture, fabricate, or develop one or more critical 

technologies.

Does the Department of the Treasury anticipate that it will make additional revisions to the 

regulations in the future or issue other rules?

Given the specificity of certain provisions of the rule, the Department of the Treasury anticipates 

that it will periodically review, and when necessary amend, the regulations to address changes in 

technology and data use, as well as the evolving national security landscape more generally.

Additionally, as noted in the final rules, FIRRMA also authorizes the Committee to assess and 

collect fees with respect to covered transactions under both rules for which a written notice is 

filed. The Department of the Treasury will publish a separate proposed rule implementing the 

Committee’s fee authority at a later date.

As noted in the rule amending the part 800 regulations, the Department of the Treasury 

anticipates issuing a notice of proposed rulemaking that would revise the mandatory declaration 

requirement for certain covered transactions involving certain U.S. businesses that produce, 

design, test, manufacture, fabricate, or develop one or more critical technologies.

Interim Rule on Definition of “Principal Place of Business”

Why is the Department of the Treasury treating the definition of “principal place of 

business” as an interim rule?

The proposed rules that were issued in September 2019 included provisions that use the term 

“principal place of business.” The Department of the Treasury received comments on those 

provisions, including requests to add a definition for the term. In response to these comments, a 

definition for “principal place of business” has been included, further clarifying which entities 

are foreign entities and therefore foreign persons subject to CFIUS jurisdiction. This definition 

will become effective with the rest of the rule. The Department of the Treasury has determined 

that it would benefit the public and the Committee to receive comments from the public on this 

definition before it is made final.

When does the public comment period on the interim rule begin and end?

The Department of the Treasury is providing an immediate opportunity for public comment on 

the definition of “principal place of business.” The comment period will be open for 30 days.

Who may submit comments during the public comment period and how?

Interested members of the public may comment on the proposed regulations. Comments may be 

submitted electronically through the Federal government’s eRulemaking Portal at 

https://www.regulations.gov or mailed to: U.S. Department of the Treasury, Attention: Laura 

Black, Director of Investment Security Policy and International Relations, 1500 Pennsylvania 

Avenue, NW, Washington, DC 20220. All comments received, including attachments and other 

supporting material, will be part of the public record and subject to public disclosure.
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Control Transactions

Do the regulations change CFIUS’s jurisdiction over transactions that could result in 

control of a U.S. business by a foreign person?

No. CFIUS maintains its authority to review the potential national security effects of any 

transaction that could result in foreign control of any U.S. business. The regulations expand 

CFIUS’s jurisdiction over certain “non-controlling” transactions and certain real estate 

transactions.

Country Specification

Do the regulations treat investors from certain countries differently?

FIRRMA does not prohibit investments from any country, and investments from all foreign 

persons remain subject to CFIUS jurisdiction over transactions that could result in foreign 

control of a U.S. business. As required by FIRRMA, however, the regulations limit the 

application of CFIUS’s jurisdiction over non-controlling “covered investments” and certain real 

estate transactions by certain foreign persons, defined as “excepted investors,” from certain 

“excepted foreign states.” Any such eligible investor and foreign state must meet specific 

criteria to qualify for this status.

How did the Department of the Treasury determine the eligible foreign states under the 

regulations? Will the list be revised in the future? 

CFIUS has identified Australia, Canada, and the United Kingdom as the initial excepted foreign 

states and excepted real estate foreign states. CFIUS identified these countries due to certain 

aspects of their robust intelligence-sharing and defense industrial base integration mechanisms 

with the United States. Because this is a new concept with potentially significant implications 

for U.S. national security, CFIUS is initially identifying a limited number of foreign states and 

may expand the list in the future. Note that in order for each of these countries to remain an 

excepted foreign state and an excepted real estate foreign state after February 13, 2022, the 

Committee must make a determination regarding an eligible foreign state’s national securitybased foreign investment review processes and bilateral cooperation with the United States on 

national security-based investment reviews.

How long does an “excepted foreign state” and “excepted real estate foreign state” have to 

meet the factors that the Committee will consider when making a determination regarding 

an eligible foreign state’s national security-based foreign investment review processes and 

bilateral cooperation?

As detailed in the regulations, from February 13, 2020 to February 13, 2022, the countries 

identified as eligible foreign states are considered “excepted foreign states” and “excepted real 

estate foreign states.” In order for each of these countries to remain excepted after the end of the 

two-year delayed effectiveness period (i.e., February 13, 2022), the Committee must make a 

determination under § 800.1001 or § 802.1001, as applicable. This two-year period is intended 

to provide these initial eligible foreign states time to ensure that their national security-based 

foreign investment review processes and bilateral cooperation with the United States on national 

security-based investment review meet the requirements under § 800.1001 and § 802.1001. The 
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Committee takes no position on whether the foreign states currently meet the determination 

factors discussed above. 

What factors will CFIUS consider in making a determination regarding an eligible foreign 

state’s national security-based foreign investment review processes and bilateral 

cooperation with the United States on national security-based investment review?

A list of factors will be posted on the Department of the Treasury’s Website outlining what the 

Committee will consider when making a determination regarding an eligible foreign state’s 

national security-based foreign investment review processes and bilateral cooperation with the 

United States on national security-based investment reviews.

Will every foreign person based in an “excepted foreign state” or “excepted real estate 

foreign state” qualify as an “excepted investor” or “excepted real estate investor” as 

applicable?

Not necessarily. The regulations identify criteria that a foreign person must meet in order to 

qualify as an “excepted investor” or “excepted real estate investor” regarding, for example, its 

principal place of business, place of incorporation, and ownership. The regulations also identify 

criteria that would preclude a foreign person from qualifying as an excepted investor, such as 

non-compliance with the law.

Will “excepted investors” remain subject to CFIUS jurisdiction for control transactions?

Yes. CFIUS retains the authority to review a transaction that could result in foreign control of

any U.S. business, regardless of whether the foreign person is an “excepted investor.” 

Sensitive Personal Data

Is personally identifiable information (PII) the same as sensitive personal data under the 

regulations? 

“Sensitive personal data” is defined to include ten specified categories of data that may be 

maintained or collected by U.S. businesses. The categories of data include types of financial, 

geolocation, and health data, among others. Moreover, a U.S. business that maintains or collects 

these categories of data on U.S. citizens will only be considered to have sensitive personal data 

to the extent it (i) targets or tailors products or services to certain populations, including U.S. 

military members and employees of federal agencies with national security responsibilities, (ii) 

collects or maintains such data on at least one million individuals, or (iii) has a demonstrated 

business objective to maintain or collect such data on greater than one million individuals and 

such data is an integrated part of the U.S. business’s primary products or services. Genetic test 

information is also included in the definition regardless of whether it meets (i), (ii), or (iii).

Declarations

For what type of transactions can parties submit a declaration? 

The regulations provide a short-form declaration as an alternative to CFIUS’s traditional 

voluntary notice. Declarations allow parties to submit basic information regarding a transaction 

that should generally not exceed five pages in length. The Department of the Treasury will 
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accept declarations submitted by parties using a standard template form, which will be available 

on the Department of the Treasury’s Website by the time the final regulations become effective.

In certain circumstances filing a declaration for a transaction is mandatory. In particular, the 

regulations implement FIRRMA’s requirement that certain covered transactions where a foreign 

government is acquiring a “substantial interest” in specified types of U.S. businesses are subject 

to a mandatory declaration. Additionally, the regulations require the filing of a declaration for 

covered transactions involving certain U.S. businesses that produce, design, test, manufacture, 

fabricate, or develop one or more critical technologies. Parties may choose to file a notice 

instead of a declaration. 

How do the regulations address the pilot program on critical technologies that became 

effective in November 2018?

The pilot program on critical technologies remains in effect through February 12, 2020. Starting 

on February 13, 2020, parties should analyze their transactions involving U.S. businesses with 

critical technologies under the regulations for part 800. 

The rule published for part 800 incorporates many of the provisions of the pilot program on 

critical technologies, including the mandatory filing requirement for certain covered transactions 

involving critical technologies. As noted in the regulations, the Department of the Treasury 

anticipates issuing a notice of proposed rulemaking that would revise the mandatory declaration 

requirement regarding critical technology from one based upon North American Industry 

Classification System (NAICS) codes to one based upon export control licensing requirements.

Real Estate

In what locations are real estate transactions covered by the regulations on real estate?

The regulations on real estate are generally structured around specific sites—certain airports, 

maritime ports, and military installations—and specific geographic areas in and around those 

sites. Other facilities or properties of the U.S. Government may in the future be included in the 

list of sites identified in the rule.

Will the Department of the Treasury publish a tool to help the public interpret the scope of 

the new real estate regulations?

The Department of the Treasury anticipates making available a Web-based tool to help the public 

understand the geographic coverage of the rule. In the meantime, the Census Bureau within the 

Department of Commerce maintains a Web-based system, TIGERweb, which allows users to 

select features (e.g., military installations, urbanized areas, and urban clusters) and view such 

attributes on a map. Additionally, the Department of Transportation publishes the relevant lists 

of airports and maritime ports referenced in the rule. Finally, the Bureau of Ocean Energy 

Management maintains Web-based resources which should be helpful to parties with 

transactions in or near the offshore areas.
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Are all real estate transactions covered if they fall within the specific geographic areas 

described in the regulations?

No. The regulations on real estate transactions exclude from CFIUS’s jurisdiction certain 

transactions based on characteristics of the foreign person, the transaction, and the real estate. 

The regulations include a section on “excepted real estate transactions” and exclude the 

following, subject to certain conditions:

 real estate transactions involving an excepted real estate investor;

 real estate transactions that are part of a “covered transaction” under the part 800 

regulations;

 real estate transactions in an “urbanized area” or “urban cluster,” as defined by the 

Census Bureau, except those relating to “covered ports” and those in “close proximity” to 

certain military installations;

 the purchase, lease, or concession of a single “housing unit,” as defined by the Census 

Bureau; 

 the lease or concession of real estate in airports and maritime ports for the purpose of 

retail sales;

 the lease or concession of real estate in airports and maritime ports involving a foreign air 

carrier with a security program accepted by the Transportation Security Administration;

 the purchase, lease, or concession of certain commercial space in a multi-unit commercial 

building; and

 transactions involving real estate owned by Alaska Natives or held in trust by the United 

States for certain native populations.

Do the regulations cover the sale or lease of residential property?

FIRRMA excludes from CFIUS’s jurisdiction the purchase or lease by, or concession to, a 

foreign person of a single “housing unit,” as defined by the Census Bureau. Given that many 

single housing units are conveyed with adjoining land, the regulations on real estate also

exclude any fixtures and adjacent land but only to the extent they are incidental to the intended 

use of the real estate as a housing unit. Fixtures and land may be considered incidental if their 

size and nature is common for similar single housing units in the locality in which the unit is 

located. If the incidental fixtures or land is not common for other similar housing units in the 

locality, the exception would apply only to the housing unit itself. 

Are all real estate transactions in urbanized areas excluded from the regulations?

No, in certain locations, real estate transactions in urbanized areas are within the scope of the 

regulations. Specifically, transactions involving real estate that is in “close proximity” (one 

mile) to a military installation listed in part 1 or part 2 of appendix A is covered, as is real 

estate that is, is located within, or will function as part of a “covered port.”

Where can I find more information on urbanized areas and urban clusters?

Information on urbanized areas and urban clusters can be found on the Census Bureau Website, 

including though a Web-based system, TIGERweb, which allows users to select features such as 

urbanized areas and urban clusters, and view such attributes on a map. See 

https://tigerweb.geo.census.gov/tigerweb/. 
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Is there a mandatory notification requirement for real estate transactions?

No. The transactions described in the regulations on real estate are not subject to a mandatory 

declaration requirement. As a general matter, parties to a covered real estate transaction will 

decide whether to file a notice or submit a declaration to CFIUS. 

Filing Fees

Do the regulations establish filing fees pursuant to FIRRMA?

No. The Department of the Treasury will publish separate proposed regulations regarding filing 

fees at a later date.

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