FAQs on FIRRMA Critical Technology Pilot Program 

1. What is the purpose and duration of the pilot program?

FIRRMA authorizes CFIUS to conduct one or more pilot programs to implement any provisions 

of the legislation that were not immediately effective upon enactment. CFIUS determined that 

the new and evolving threats to U.S. national security arising from certain foreign investments in 

U.S. businesses in particular industries require immediate attention. The pilot program allows 

CFIUS to address these risks to U.S. national security, and in the process, gain insights that will 

inform the development of final regulations to fully implement FIRRMA. 

In accordance with FIRRMA, the pilot program will commence 30 days following publication of 

the regulations in the Federal Register—that is, on November 10, 2018. The pilot program is 

temporary and will end no later than the date on which the full regulations implementing 

FIRRMA become effective, and in no event later than the date that is 570 days after the 

enactment of FIRRMA (i.e., March 5, 2020).

2. Where can I find more information about NAICS codes?

Information on NAICS codes can be found on this Web site: 

https://www.census.gov/eos/www/naics/

3. Is there a “white list” or a “black list” in the pilot program?

No, this pilot program applies to all foreign persons. Like prior CFIUS legislation and FIRRMA 

itself, the pilot program does not single out any specific country. The Committee’s experience 

under the pilot program will inform the full implementation of FIRRMA, including the 

Committee’s approach with respect to the country specification provision in FIRRMA.

4. Do these new regulations change the definition of “control?”

The pilot program regulations do not change the definition of “control” set forth in 31 CFR 

800.204. Rather, the pilot program regulations expand CFIUS’s jurisdiction to include certain 

non-controlling investments by foreign persons in certain U.S. businesses that produce, design, 

test, manufacture, fabricate, or develop a critical technology.

5. Do the pilot program regulations change the process for written notices?

The pilot program regulations do not change the process for written notices filed pursuant to part 

800, other than requiring additional information for certain pilot program covered transactions.

In particular, a notice of a pilot program covered transaction filed with CFIUS must include the 

information set forth in 31 CFR 800.402(c). In addition to these information requirements, 

notices of pilot program covered transactions must include the information set forth in 31 CFR

801.503, with one exception: if a party stipulates, pursuant to 31 CFR 800.402(n), that the pilot 
program covered transaction could result in control by a foreign person over the pilot program 

U.S. business, the party is not required to include the information set forth in 31 CFR 801.503 

and need only provide the information requirements at 31 CFR 800.402(c). A party making a 

stipulation must provide a description of the basis for the stipulation as set forth in 31 CFR 

800.402(n).

The pilot program regulations do not change in any way the process for notices covering 

transactions that fall outside the scope of the pilot program regulations. 

6. What is the value of stipulations?

A stipulation could expedite review and action by CFIUS because it may streamline certain 

aspects of CFIUS’s review. In addition, stipulating control will reduce certain information 

requirements (see Question 5).

Parties submitting a stipulation should be aware, however, that the Committee and the President 

are entitled to rely on such stipulation in determining whether the transaction is a pilot program 

covered transaction and/or a foreign government-controlled transaction, and parties making a 

stipulation waive the right to challenge any such determination. Additionally, neither the 

Committee nor the President is bound by any such stipulation, nor does any such stipulation limit 

the ability of the Committee or the President to act on any authority provided under section 721

of the Defense Production Act of 1950 (DPA), as amended, with respect to any covered 

transaction.

7. Can parties voluntarily file declarations for non-pilot program transactions?

At this time, the declaration process is only available for transactions that fall within the specific 

scope of the pilot program. The Committee’s experience conducting the pilot program will 

inform how CFIUS develops the final regulations to fully implement FIRRMA, including use of 

the declaration process for a broader range of transactions. 

8. If a transaction falls within the scope of the pilot program, how should parties 

determine whether to submit a declaration versus a written notice?

The pilot program regulations require that parties to a pilot program covered transaction submit a 

declaration to CFIUS. Parties may, however, elect to submit a full written notice instead of a 

declaration. Parties will need to consider at the outset whether to submit a declaration or a full 

written notice based on the complexity of the transaction, timing considerations, and other 

relevant factors. A full written notice may be more appropriate than a declaration when the 

parties believe the Committee may require more extensive information to analyze potential 

national security risks. With respect to timing, parties should consider the likelihood that CFIUS 

will be able to conclude action under section 721 of the DPA in the 30 days allotted for assessing

a declaration. Because CFIUS has the option of responding to a declaration by requesting that 

the parties file a written notice, there may be instances in which parties would save time overall 

by filing a written notice at the outset. 
9. How do I file a declaration?

Parties submitting a declaration must use the form and follow the instructions available at 

https://home.treasury.gov/policy-issues/international/the-committee-on-foreign-investment-inthe-united-states-cfius. 

10. Can I simultaneously file both a declaration and a written notice for the same 

transaction?

CFIUS will not simultaneously review both a written notice and a declaration for the same 

transaction or substantially similar transactions.

Pursuant to 31 CFR 801.401(b), parties that have filed a written notice may not submit a 

declaration regarding the same transaction or a substantially similar transaction without the 

approval of the Staff Chairperson. In the case where a declaration is pending with the 

Committee regarding a transaction—i.e., the Committee has not yet taken action pursuant to 31 

CFR 801.407 with respect to the declaration—and the parties file a written notice regarding the 

same transaction or a substantially similar transaction, the parties should expect CFIUS to stop 

its assessment of the declaration and, instead, to begin reviewing the written notice.

11. Under the pilot program, which transactions benefit from the regulatory “safe 

harbor” for subsequent acquisitions of additional interest as described in 31 CFR 

800.204(e)?

Pursuant to the safe harbor set forth at 31 CFR 800.204(e), referred to as the incremental 

acquisitions rule, “[a]ny transaction in which a foreign person acquires an additional interest in a 

U.S. business that was previously the subject of a covered transaction for which the Committee 

concluded all action under section 721 shall not be deemed to be a transaction that could result in 

foreign control over that U.S. business (i.e., it is not a covered transaction).” This provision was 

introduced when the scope of CFIUS’s review included only transactions that could result in 

foreign control of a U.S. business and when the only means to file was by submitting a written 

notice.

When a written notice is filed for, and CFIUS concludes all action with respect to, a pilot 

program covered transaction that falls within 31 CFR 801.210(b) (i.e., any transaction by or with 

any foreign person that could result in foreign control of any pilot program U.S. business, 

including such a transaction carried out through a joint venture), the incremental acquisitions rule 

will apply. 

With respect to transactions that are within the scope of the pilot program, the incremental 

acquisitions rule does not apply when the Committee concludes all action under section 721 with 

respect to: (1) any pilot program covered transaction submitted to the Committee through a 

declaration (as opposed to a full written notice); or (2) any pilot program covered investment 

(i.e., the acquisition of equity interest, including contingent equity interest, that could not result

in control by a foreign person of a pilot program U.S. business and that affords the foreign 

person any of the access, rights or involvement detailed in 31 CFR 801.209) filed with the 
Committee through a full written notice. In these situations, the conclusion of all action by the 

Committee provides a safe harbor only with respect to the particular investment that is the 

subject of the filing.

12. If CFIUS requests that I file a notice in response to my declaration, am I required to 

file a notice? How long do I have to file the notice? 

In response to a declaration, the Committee may request, pursuant to 31 CFR 801.407(a)(1), that 

the parties file a written notice in accordance with subpart E of part 801. This indicates that the 

Committee believes it is necessary for CFIUS to review, and potentially investigate, the 

transaction under the procedures set forth in 31 CFR part 800. If the parties do not file a notice 

upon request, the Committee may utilize other authorities available to it, including, without 

limitation, the ability to initiate a unilateral review of the transaction.

The Staff Chairperson may specify a timeframe within which the Committee requests the parties 

to file a written notice. Even if the Staff Chairperson does not specify a timeframe, parties are 

encouraged to file a written notice as promptly as possible after receiving the Committee’s 

request. The written notice would be subject to the standard timeframe for a CFIUS review and, 

if necessary, investigation. In the written notice, parties should reference the declaration case 

number.

13. If I file a declaration and CFIUS requests a notice or informs me that it is not able 

to complete action under section 721 of the DPA with respect to the transaction on 

the basis of the declaration, how do I file a notice?

Parties submitting a notice after the Committee has taken action pursuant to 31 CFR 

801.407(a)(1) or (2) should prepare the notice in accordance with subpart E of part 801. The 

information requirements for a written notice of a pilot program covered transaction overlap to 

some degree with the requirements for declarations, but are more extensive in other respects. As 

a result, parties filing a written notice will be able to draw on the information submitted in the 

declaration, but will need to prepare responses to all of the information requirements in 

accordance with subpart E. 

14. What do I do if I have a transaction where closing is expected to occur less than 45 

days after CFIUS starts accepting declarations on November 10, 2018?

For pilot program covered transactions with a completion date less than 45 days after November 

10, 2018 (i.e., transactions with a completion date between November 10 and December 25, 

2018), the pilot program regulations specifically provide that such transactions are to be 

submitted to CFIUS on November 10, 2018, or promptly thereafter. The requirement that pilot 

program covered transactions be filed with CFIUS 45 days before the completion date applies 

only to transactions for which the completion date is after December 25, 2018.

Although the 45-day requirement is not applicable to transactions with a completion date 

between November 10 and December 25, 2018, when a transaction is completed while it is 
pending with CFIUS, measures—potentially including divestment—are available to address risks 

to national security identified by CFIUS. Thus, parties assume some risk by completing a 

transaction while it is pending with CFIUS.

15. A “pilot program covered investment” includes an investment that affords the 

foreign person “[a]ny involvement, other than through voting of shares, in 

substantive decisionmaking of the pilot program U.S. business regarding the use, 

development, acquisition, or release of critical technology.” What does this mean?

The pilot program regulations define a “pilot program covered investment” in 31 CFR 801.209 

to include any non-controlling investment, direct or indirect, by a foreign person in an 

unaffiliated pilot program U.S. business that affords the foreign person any involvement, other 

than through voting of shares, in substantive decisionmaking of the pilot program U.S. business 

regarding the use, development, acquisition, or release of critical technology. 

The term “substantive decisionmaking” as it relates to the use, development, acquisition, or 

release of a critical technology may include, for example, decisions regarding the following:

 licensing;

 pricing, sales, and specific contracts;

 supply arrangements;

 corporate strategy and business development;

 research and product development, including budget allocation;

 manufacturing locations;

 access to such technology;

 the storage or protection of such technology; 

 appointment or removal of personnel or management with operational oversight; or

 strategic partnerships.

As a general matter, substantive decisionmaking for purposes of 31 CFR 801.209(c) does not 

include strictly administrative decisions.

The term “any involvement” does not mean that the foreign person must have final 

decisionmaking authority. It also captures situations in which the investment gives the foreign 

person, among other things, any of the following with respect to decisionmaking regarding the 

use, development, acquisition, or release of critical technology:

 the right to consult with or provide advice to a decisionmaker;

 special approval or veto rights;

 the right or ability to participate on a committee with decisionmaking authority;

 the right to have direct access to directors, officers, managers, and other employees 

engaged in or with the ability to make decisions; or

 the right to appoint officers or employees who have involvement of the type listed above.
16. How do I determine whether a company is a pilot program U.S. business?

Pursuant to 31 CFR 801.213, a U.S. business meets the definition of a “pilot program U.S. 

business” if it produces, designs, tests, manufactures, fabricates, or develops a critical technology 

that is (a) utilized in connection with the U.S. business’s activity in one or more pilot program 

industries; or (b) designed by the U.S. business specifically for use in one or more pilot program 

industries.

The first step is to determine, if not already known, whether the U.S. business produces, designs, 

tests, manufactures, fabricates, or develops a critical technology. This will involve considering 

everything that the U.S. business produces, designs, tests, manufactures, fabricates, and

develops, and determining whether anything falls within the definition of a “critical technology” 

pursuant to 31 CFR 801.204. 

If a U.S. business produces, designs, tests, manufactures, fabricates, or develops one or more 

critical technologies, the next step is to determine whether the U.S. business utilizes any of those 

critical technologies in connection with its activities in one or more pilot program industries (i.e., 

the industries identified in Annex A to 31 CFR part 801). If so, the U.S. business is a pilot 

program U.S. business.

If not, the final step is to determine whether one or more of the critical technologies produced, 

designed, tested, manufactured, fabricated, or developed by the U.S. business is designed by the 

U.S. business specifically for use in one or more pilot program industries, irrespective of whether 

such use is by the U.S. business itself or by another person. If so, the U.S. business is a pilot 

program U.S. business. 

17. Prior to the effectiveness of the pilot program, a foreign person (Corporation A) 

made a non-controlling investment in a U.S. business (Corporation B) that would 

have been a pilot program U.S. business had the pilot program been in effect at the 

time. The investment afforded Corporation A one or more of the rights specified in 

paragraphs (a), (b), or (c) of 31 CFR 801.209. CFIUS did not review this investment 

because the pilot program was not yet in effect and hence the investment was not a 

pilot program covered transaction. If, while the pilot program is in effect, 

Corporation A makes an additional investment in Corporation B to prevent the 

dilution of Corporation A’s pro rata interest in Corporation B, is such additional 

investment a pilot program covered transaction? 

Not necessarily. Assuming no other relevant facts, an additional investment to prevent dilution 

of a foreign person’s pro rata interest in a pilot program U.S. business, with respect to which the 

foreign person already had rights specified in paragraphs (a), (b), or (c) of 31 CFR 801.209 prior 

to the effectiveness of the pilot program, does not alone constitute a pilot program covered 

transaction if the additional investment does not afford the foreign person any of the rights 

specified in paragraphs (a), (b), or (c) of 31 CFR 801.209.

Example: In December 2017, Corporation A, a foreign person, acquired a four percent noncontrolling equity interest with board observer rights in Corporation B, a U.S. business that 
would have been a pilot program U.S. business after the pilot program effective date. The 

Committee did not review such investment. One year later, while the pilot program was in 

effect, Corporation A proposes to make an additional investment in Corporation B to prevent 

dilution and maintain Corporation A’s four percent non-controlling equity interest in Corporation 

B. The proposed additional investment would not afford Corporation A any of the rights 

specified in paragraphs (a), (b), or (c) of 31 CFR 801.209. Assuming no other relevant facts, the 

additional investment is not a pilot program covered transaction.

18. How do I know if my company’s technology constitutes “emerging or foundational 

technology”?

Consistent with FIRRMA, the regulations implementing the pilot program define “critical 

technologies” to include, among other things, emerging and foundational technologies controlled 

pursuant to section 1758 of the Export Control Reform Act of 2018 (“ECRA,” Pub. Law 115-

232, Title XVII, Subtitle B). In keeping with the ECRA, emerging and foundational 

technologies will be determined by an interagency process that will consider both public and 

classified information as well as information from the Emerging Technology Technical Advisory 

Committee (formerly known as the Emerging Technology and Research Advisory Committee) 

and CFIUS. This interagency process is anticipated to result in proposed rules for new Export 

Control Classification Numbers on the Commerce Control List, which is maintained by the 

Department of Commerce. As emerging and foundational technologies are identified and 

become controlled under the ECRA, they will be covered under the definition of “critical 

technologies” in the CFIUS regulations. CFIUS is not creating a separate definition of emerging 

and foundational technologies outside the interagency process outlined by the ECRA.

On November 19, 2018, the Department of Commerce’s Bureau of Industry and Security 

(“BIS”) published an advance notice of proposed rulemaking (“ANPRM”) in the Federal 

Register seeking public comment on implementation of section 1758 of the ECRA and in 

particular, the criteria for identifying emerging technologies that are essential to U.S. national 

security. See 83 Fed. Reg. 58201 (Nov. 19, 2018) and 83 Fed. Reg. 64299 (Dec. 14, 2018) 

(extending the public comment period until Jan. 10, 2019). Comments submitted on this 

ANPRM will help inform the interagency process to identify and describe such emerging 

technologies. BIS is expected to issue a separate ANPRM regarding criteria for identifying 

foundational technologies that may be important to U.S. national security.

19. Does the pilot program apply to investments by or through investment funds?

Yes, the pilot program applies to all transactions that constitute pilot program covered 

transactions, which may include investments by or through investment funds. Consistent with 

FIRRMA, the pilot program regulations include a clarification at 31 CFR 801.304 in the context 

of indirect investments by limited partners through investment funds in light of the role 

sometimes played by limited partners within the fund, i.e., that of a member on the fund’s 

advisory board or committee. In particular, the clarification applies in the context of an indirect 

investment by a foreign person in a pilot program U.S. business through an investment fund that 

affords the foreign person (or a designee of the foreign person) membership as a limited partner 

or equivalent on an advisory board or committee of the fund. This clarification is intended to 
make clear that, where all of the criteria in 31 CFR 801.304 are satisfied, a limited partner’s 

advisory board or committee membership does not in and of itself render the foreign person’s 

indirect investment in a pilot program U.S. business a “pilot program covered transaction” if it 

would not otherwise be. 

20. If a foreign limited partner does not meet all of the criteria in 31 CFR 801.304(a), is 

it subject to the pilot program? 

Not necessarily. If a foreign limited partner is a member of the advisory board or committee of a 

fund, but all of the criteria set forth in 31 CFR 801.304(a) are not met, an analysis of the 

particular facts and circumstances will be required to determine if the indirect investment by the 

foreign person in a pilot program U.S. business through an investment fund is a pilot program 

covered transaction. The analysis would consider whether the investment could result in foreign 

control of a pilot program U.S. business or affords the foreign person any of the following: 

(a) access to any material nonpublic technical information in the possession of the pilot 

program U.S. business; 

(b) membership or observer rights on the board of directors or equivalent governing body 

of the pilot program U.S. business or the right to nominate an individual to a position on 

the board of directors or equivalent governing body of the pilot program U.S. business; or 

(c) any involvement, other than through voting of shares, in substantive decisionmaking of 

the pilot program U.S. business regarding the use, development, acquisition, or release of 

critical technology.

21. The pilot program requires the submission of mandatory declarations, but 

FIRRMA includes an exception to the mandatory declaration requirement for 

investments by investment funds meeting certain criteria. Does FIRRMA’s 

exception to the mandatory declaration requirement apply in the context of the pilot 

program? 

Yes. FIRRMA includes an exception to the mandatory declaration requirement for investments 

by an investment fund if—

(a) the fund is managed exclusively by a general partner, a managing member, or an 

equivalent;

(b) the general partner, managing member, or equivalent is not a foreign person; and 

(c) the investment fund satisfies, with respect to any foreign person with membership as a 

limited partner on an advisory board or a committee of the fund, the criteria specified in 

FIRRMA’s general clarification for investment funds (sections 721(a)(4)(D)(iv)(cc) and 

(dd) of the DPA).

31 CFR 801.602 makes effective certain provisions of section 721 as set out in FIRRMA, 

including the mandatory declaration exception for certain investments by investment funds, with 

respect to any pilot program covered transaction (i.e., paragraph (1)(C)(v)(IV)(dd) of subsection 

(b) of section 721). 
Notwithstanding this exception to mandatory filings, parties should nevertheless consider 

whether to file a voluntary notice if the transaction is a pilot program covered transaction.

22. How does the pilot program treat transactions where the same foreign person is 

making both an indirect investment in a pilot program U.S. business through an 

investment fund, as well as a direct investment in the pilot program U.S. business? 

Consistent with its current practice, CFIUS will consider the totality of the particular facts and 

circumstances of the transaction in determining whether a transaction is subject to its 

jurisdiction. Even if an indirect investment through an investment fund, standing alone, does not 

constitute a pilot program covered investment, the direct investment by the foreign person may 

nevertheless be covered under 31 CFR 801.209.