September 28, 2020

National Security: Treasury Tweaks CFIUS Mandatory Declaration Rules

Earlier this month, the Treasury Dept. amended the rules governing CFIUS mandatory declarations.  Here’s the intro from this Simpson Thacher memo:

On September 15, 2020, the Office of Investment Security of the U.S. Department of the Treasury published a final rule modifying the Committee on Foreign Investment in the United States’  regulations relating to its mandatory declaration provisions. The most significant amendments pertain to the mandatory filing requirements for certain foreign investments in U.S. businesses that engage in activities relating to critical technologies, a regime referred to previously as the “Pilot Program.”

Under prior iterations of the regulations, a mandatory declaration for an investment in a U.S. business engaged in activities concerning critical technologies was only triggered when those activities were related to one of 27 sensitive industries specified by North American Industry Classification System (“NAICS”) code. The final rule abandons the industry-specific inquiry entirely, and instead adopts a new threshold analysis that focuses on the particular export controls that may be applicable to the critical technology utilized by the U.S. business.

The memo notes that the amendments do not change the definition of “critical technologies,” which is defined by FIRRMA and is, in part, subject to a separate ongoing rulemaking process by the Department of Commerce.  We’re posting memos in our “National Security Considerations” Practice Area.

John Jenkins