CFIUS FIRRMA Tool 2.0

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• Under the FIRRMA regulations, CFIUS has authority to review both controlling investments by foreign persons in US businesses, as well as certain non-controlling, non-passive investments by certain foreign persons in US businesses involved with critical technology, critical infrastructure, or sensitive personal data (known as "TID US businesses" for technology, infrastructure, and data). Certain transactions involving TID US businesses are subject to mandatory filing requirements with potentially substantial penalties for noncompliance. Under the FIRRMA regulations, CFIUS also has authority to review the purchase or lease by, or concession to, certain foreign persons of certain real estate (a) located within or functioning as part of an air or maritime port or (b) that is in close proximity to, or that provides the foreign person the ability to collect intelligence on or surveil national security activities at, US military installations or other sensitive US government facilities or property.
• This tool provides an online, step-by-step analysis of a contemplated transaction in order to assist users in determining whether the transaction could be subject to CFIUS's jurisdiction under FIRRMA and if mandatory filing requirements would apply. It also includes stand-alone functions for determining whether a company qualifies as a TID US business and determining whether a foreign investor qualifies as an excepted investor.
• White & Case is an expansive global platform with a market-leading foreign-direct-investment (FDI) practice. CFIUS-like review processes are being developed or strengthened throughout the world, and FDI has emerged as a critical consideration in cross-border transactions. In Europe, we have highly experienced FDI experts in the key countries with active or expanding FDI review regimes, including Germany, France, the United Kingdom, Italy, Denmark, Finland, Norway, Poland, Spain, Czech Republic, Türkiye, and Russia. We also have FDI experts throughout the Asia Pacific region, including Australia, China, Japan, Singapore, and India, and our team provides FDI expertise in the Middle East, including Saudi Arabia and the United Arab Emirates. Please contact any of the experts listed below to let us get started with assisting you through the complexities of global FDI regimes on cross-border deals.

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

	Farhad Jalinous Partner, Washington, DC +1 202 626 3691 farhad.jalinous@whitecase.com
	Karalyn Mildorf Partner, Washington, DC +1 202 626 6489 karalyn.mildorf@whitecase.com
	Keith Schomig Partner, Washington, DC +1 202 729 2330 keith.schomig@whitecase.com

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).

What is an "investment"?

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

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 are "critical technologies"?

The term critical technologies means the following:

• Defense articles or defense services included on the United States Munitions List (USML) set forth in the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130);
• Items included on the Commerce Control List (CCL) set forth in Supplement No. 1 to part 774 of the Export Administration Regulations (EAR) (15 CFR parts 730-774), and controlled—
  • Pursuant to multilateral regimes, including for reasons relating to national security, chemical and biological weapons proliferation, nuclear nonproliferation, or missile technology; or
  • For reasons relating to regional stability or surreptitious listening;
• Specially designed and prepared nuclear equipment, parts and components, materials, software, and technology covered by 10 CFR part 810 (relating to assistance to foreign atomic energy activities);
• Nuclear facilities, equipment, and material covered by 10 CFR part 110 (relating to export and import of nuclear equipment and material);
• Select agents and toxins covered by 7 CFR part 331, 9 CFR part 121, or 42 CFR part 73; and
• Emerging and foundational technologies controlled under section 1758 of the Export Control Reform Act of 2018 (50 USC 4817).

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"?

(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 2000ff(7).

(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.

What are "critical technologies"?

The term critical technologies means the following:

• Defense articles or defense services included on the United States Munitions List (USML) set forth in the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130);
• Items included on the Commerce Control List (CCL) set forth in Supplement No. 1 to part 774 of the Export Administration Regulations (EAR) (15 CFR parts 730-774), and controlled—
  • Pursuant to multilateral regimes, including for reasons relating to national security, chemical and biological weapons proliferation, nuclear nonproliferation, or missile technology; or
  • For reasons relating to regional stability or surreptitious listening;
• Specially designed and prepared nuclear equipment, parts and components, materials, software, and technology covered by 10 CFR part 810 (relating to assistance to foreign atomic energy activities);
• Nuclear facilities, equipment, and material covered by 10 CFR part 110 (relating to export and import of nuclear equipment and material);
• Select agents and toxins covered by 7 CFR part 331, 9 CFR part 121, or 42 CFR part 73; and
• Emerging and foundational technologies controlled under section 1758 of the Export Control Reform Act of 2018 (50 USC 4817).

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"?

(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 2000ff(7).

(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.

What are "critical technologies"?

The term critical technologies means the following:

• Defense articles or defense services included on the United States Munitions List (USML) set forth in the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130);
• Items included on the Commerce Control List (CCL) set forth in Supplement No. 1 to part 774 of the Export Administration Regulations (EAR) (15 CFR parts 730-774), and controlled—
  • Pursuant to multilateral regimes, including for reasons relating to national security, chemical and biological weapons proliferation, nuclear nonproliferation, or missile technology; or
  • For reasons relating to regional stability or surreptitious listening;
• Specially designed and prepared nuclear equipment, parts and components, materials, software, and technology covered by 10 CFR part 810 (relating to assistance to foreign atomic energy activities);
• Nuclear facilities, equipment, and material covered by 10 CFR part 110 (relating to export and import of nuclear equipment and material);
• Select agents and toxins covered by 7 CFR part 331, 9 CFR part 121, or 42 CFR part 73; and
• Emerging and foundational technologies controlled under section 1758 of the Export Control Reform Act of 2018 (50 USC 4817).

• any internet protocol network that has access to every other internet protocol network solely via settlement-free peering.
• any 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.
• any internet exchange point that supports public peering.
• 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.
• any data center that is collocated at a submarine cable landing point, landing station, or termination station.
• any satellite or satellite system providing services directly to the Department of Defense or any component thereof.
• 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)).
• any electric storage resource, as defined in 18 CFR 35.28(b)(9), as amended, that is physically connected to the bulk-power system.
• any facility that provides electric power generation, transmission, distribution, or storage directly to or located on any military installation identified in § 802.227.
• any individual refinery with the capacity to produce 300,000 or more barrels per day (or equivalent) of refined oil or gas products.
• one or more refineries with the capacity to produce, in the aggregate, 500,000 or more barrels per day (or equivalent) of refined oil or gas products.
• any crude oil storage facility with the capacity to hold 30 million barrels or more of crude oil.
• any liquefied natural gas (LNG) import or export terminal requiring:
  • approval under section 3(e) of the Natural Gas Act, as amended (15 USC 717b(e)), or
  • a license under section 4 of the Deepwater Port Act of 1974, as amended (33 USC 1503).
• any 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).
• 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).
• 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:
  • 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
  • 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.
• any technology service provider in the Significant Service Provider Program of the Federal Financial Institutions Examination Council that provides core processing services.
• any rail line and associated connector line designated as part of the Department of Defense's Strategic Rail Corridor Network.
• any interstate oil pipeline that:
  • has the capacity to transport:
    • 500,000 barrels per day or more of crude oil, or
    • 90 million gallons per day or more of refined petroleum product; or
  • directly serves the strategic petroleum reserve, as defined in section 152 of the Energy Policy and Conservation Act, as amended (42 USC 6232).
• any interstate natural gas pipeline with an outside diameter of 20 or more inches.
• any airport identified in § 802.210(a)(1) through (3).
• any:
  • maritime port identified in § 802.210(a)(4) or (5); or
  • any individual terminal at such maritime ports.
• 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:
  • regularly serves 10,000 individuals or more, or
  • directly serves any military installation identified in § 802.227.
• any industrial resource that is a facility 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:
  • 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
  • the industrial resource:
    • requires 12 months or more to manufacture; or
    • is a "long lead" item, to the extent the US business has been notified that such industrial resource is a "long lead" item.
• any industrial resource that is a facility that has been funded, in whole or in part, by any of the following sources within 60 months of the transaction in question:
  • Defense Production Act of 1950 Title III program, as amended (50 USC 4501 et seq.);
  • 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);
  • Rapid Innovation Fund under section 1073 of Ike Skelton National Defense Authorization Act for Fiscal Year 2011, as amended (10 USC 2359a);
  • Manufacturing Technology Program under 10 USC 2521, as amended;
  • Defense Logistics Agency Warstopper Program, as described in DLA Instruction 1212, Industrial Capabilities Program - Manage the WarStopper Program; or
  • Defense Logistics Agency Surge and Sustainment contract, as described in Subpart 17.93 of the Defense Logistics Acquisition Directive.

• 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) 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:
  • 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
  • the industrial resource:
    • requires 12 months or more to manufacture; or
    • is a "long lead" item, to the extent the US business has been notified that such industrial resource is a "long lead" item.
• 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), under a "DX" priority rated contract or order under the Defense Priorities and Allocations System regulation (15 CFR part 700, as amended) within 24 months of the transaction in question.
• any of the following in the United States:
  • 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);
  • covered material, as defined in 10 USC 2533c, as amended;
  • chemical weapons antidote contained in automatic injectors, as described in 10 USC 2534, as amended; or
  • 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.
• any industrial resource other than commercially available off-the-shelf items, as defined in 41 USC104, as amended that has been funded, in whole or in part, by any of the following sources within 60 months of the transaction in question:
  • Defense Production Act of 1950 Title III program, as amended (50 USC 4501 et seq.);
  • 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);
  • Rapid Innovation Fund under section 1073 of Ike Skelton National Defense Authorization Act for Fiscal Year 2011, as amended (10 USC 2359a);
  • Manufacturing Technology Program under 10 USC 2521, as amended;
  • Defense Logistics Agency Warstopper Program, as described in DLA Instruction 1212, Industrial Capabilities Program - Manage the WarStopper Program; or
  • Defense Logistics Agency Surge and Sustainment contract, as described in Subpart 17.93 of the Defense Logistics Acquisition Directive.
• any industrial control system utilized by:
  • 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)); or
  • a facility directly serving any military installation by providing electric power generation, transmission, distribution, or storage directly to or located on any military installation identified in § 802.227.
• any industrial control system utilized by:
  • an interstate oil pipeline that:
  • has the capacity to transport:
    • 500,000 barrels per day or more of crude oil, or
    • 90 million gallons per day or more of refined petroleum product; or
  • directly serves the strategic petroleum reserve, as defined in section 152 of the Energy Policy and Conservation Act, as amended (42 USC 6232); or
  • an interstate natural gas pipeline with an outside diameter of 20 or more inches.
• any industrial control system utilized by a 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:
  • regularly serves 10,000 individuals or more, or
  • directly serves any military installation identified in § 802.227.

• 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.
• any industrial control system utilized by:
  • 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)); or
  • a facility directly serving any military installation by providing electric power generation, transmission, distribution, or storage directly to or located on any military installation identified in § 802.227.
• any industrial control system utilized by:
  • an interstate oil pipeline that:
    • has the capacity to transport:
      • 500,000 barrels per day or more of crude oil, or
      • 90 million gallons per day or more of refined petroleum product; or
    • directly serves the strategic petroleum reserve, as defined in section 152 of the Energy Policy and Conservation Act, as amended (42 USC 6232); or
  • an interstate natural gas pipeline with an outside diameter of 20 or more inches.
• any industrial control system utilized by a 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:
  • regularly serves 10,000 individuals or more, or
  • directly serves any military installation identified in § 802.227
• any industrial control system utilized by:
  • 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)); or
  • a facility directly serving any military installation by providing electric power generation, transmission, distribution, or storage directly to or located on any military installation identified in § 802.227.
• any industrial control system utilized by:
  • an interstate oil pipeline that:
    • has the capacity to transport:
      • 500,000 barrels per day or more of crude oil, or
      • 90 million gallons per day or more of refined petroleum product; or
    • directly serves the strategic petroleum reserve, as defined in section 152 of the Energy Policy and Conservation Act, as amended (42 USC 6232); or
  • an interstate natural gas pipeline with an outside diameter of 20 or more inches.
• any industrial control system utilized by a 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:
  • regularly serves 10,000 individuals or more, or
  • directly serves any military installation identified in § 802.227.

• 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.

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.

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"?

(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 2000ff(7).

(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.

What are "critical technologies"?

The term critical technologies means the following:

• Defense articles or defense services included on the United States Munitions List (USML) set forth in the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130);
• Items included on the Commerce Control List (CCL) set forth in Supplement No. 1 to part 774 of the Export Administration Regulations (EAR) (15 CFR parts 730-774), and controlled—
  • Pursuant to multilateral regimes, including for reasons relating to national security, chemical and biological weapons proliferation, nuclear nonproliferation, or missile technology; or
  • For reasons relating to regional stability or surreptitious listening;
• Specially designed and prepared nuclear equipment, parts and components, materials, software, and technology covered by 10 CFR part 810 (relating to assistance to foreign atomic energy activities);
• Nuclear facilities, equipment, and material covered by 10 CFR part 110 (relating to export and import of nuclear equipment and material);
• Select agents and toxins covered by 7 CFR part 331, 9 CFR part 121, or 42 CFR part 73; and
• Emerging and foundational technologies controlled under section 1758 of the Export Control Reform Act of 2018 (50 USC 4817).

What is "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 2000ff(7).

(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.

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 "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.

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.

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.

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 are "critical technologies"?

The term critical technologies means the following:

• Defense articles or defense services included on the United States Munitions List (USML) set forth in the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130);
• Items included on the Commerce Control List (CCL) set forth in Supplement No. 1 to part 774 of the Export Administration Regulations (EAR) (15 CFR parts 730-774), and controlled—
  • Pursuant to multilateral regimes, including for reasons relating to national security, chemical and biological weapons proliferation, nuclear nonproliferation, or missile technology; or
  • For reasons relating to regional stability or surreptitious listening;
• Specially designed and prepared nuclear equipment, parts and components, materials, software, and technology covered by 10 CFR part 810 (relating to assistance to foreign atomic energy activities);
• Nuclear facilities, equipment, and material covered by 10 CFR part 110 (relating to export and import of nuclear equipment and material);
• Select agents and toxins covered by 7 CFR part 331, 9 CFR part 121, or 42 CFR part 73; and
• Emerging and foundational technologies controlled under section 1758 of the Export Control Reform Act of 2018 (50 USC 4817).

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 "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 Partner, Washington, DC +1 202 626 3691 farhad.jalinous@whitecase.com
	Karalyn Mildorf Partner, Washington, DC +1 202 626 6489 karalyn.mildorf@whitecase.com
	Keith Schomig Partner, Washington, DC +1 202 729 2330 keith.schomig@whitecase.com

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 (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 Partner, Washington, DC +1 202 626 3691 farhad.jalinous@whitecase.com
	Karalyn Mildorf Partner, Washington, DC +1 202 626 6489 karalyn.mildorf@whitecase.com
	Keith Schomig Partner, Washington, DC +1 202 729 2330 keith.schomig@whitecase.com

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 Partner, Washington, DC +1 202 626 3691 farhad.jalinous@whitecase.com
	Karalyn Mildorf Partner, Washington, DC +1 202 626 6489 karalyn.mildorf@whitecase.com
	Keith Schomig Partner, Washington, DC +1 202 729 2330 keith.schomig@whitecase.com

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 Partner, Washington, DC +1 202 626 3691 farhad.jalinous@whitecase.com
	Karalyn Mildorf Partner, Washington, DC +1 202 626 6489 karalyn.mildorf@whitecase.com
	Keith Schomig Partner, Washington, DC +1 202 729 2330 keith.schomig@whitecase.com

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 Partner, Washington, DC +1 202 626 3691 farhad.jalinous@whitecase.com
	Karalyn Mildorf Partner, Washington, DC +1 202 626 6489 karalyn.mildorf@whitecase.com
	Keith Schomig Partner, Washington, DC +1 202 729 2330 keith.schomig@whitecase.com

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 Partner, Washington, DC +1 202 626 3691 farhad.jalinous@whitecase.com
	Karalyn Mildorf Partner, Washington, DC +1 202 626 6489 karalyn.mildorf@whitecase.com
	Keith Schomig Partner, Washington, DC +1 202 729 2330 keith.schomig@whitecase.com

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 Partner, Washington, DC +1 202 626 3691 farhad.jalinous@whitecase.com
	Karalyn Mildorf Partner, Washington, DC +1 202 626 6489 karalyn.mildorf@whitecase.com
	Keith Schomig Partner, Washington, DC +1 202 729 2330 keith.schomig@whitecase.com

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 Partner, Washington, DC +1 202 626 3691 farhad.jalinous@whitecase.com
	Karalyn Mildorf Partner, Washington, DC +1 202 626 6489 karalyn.mildorf@whitecase.com
	Keith Schomig Partner, Washington, DC +1 202 729 2330 keith.schomig@whitecase.com

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 Partner, Washington, DC +1 202 626 3691 farhad.jalinous@whitecase.com
	Karalyn Mildorf Partner, Washington, DC +1 202 626 6489 karalyn.mildorf@whitecase.com
	Keith Schomig Partner, Washington, DC +1 202 729 2330 keith.schomig@whitecase.com

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.

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.

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.

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.

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.

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.

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.

What is an "excepted investor"?

(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, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.

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.

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.

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:

• Defense articles or defense services included on the United States Munitions List (USML) set forth in the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130);
• Items included on the Commerce Control List (CCL) set forth in Supplement No. 1 to part 774 of the Export Administration Regulations (EAR) (15 CFR parts 730-774), and controlled—
  • Pursuant to multilateral regimes, including for reasons relating to national security, chemical and biological weapons proliferation, nuclear nonproliferation, or missile technology; or
  • For reasons relating to regional stability or surreptitious listening;
• Specially designed and prepared nuclear equipment, parts and components, materials, software, and technology covered by 10 CFR part 810 (relating to assistance to foreign atomic energy activities);
• Nuclear facilities, equipment, and material covered by 10 CFR part 110 (relating to export and import of nuclear equipment and material);
• Select agents and toxins covered by 7 CFR part 331, 9 CFR part 121, or 42 CFR part 73; and
• Emerging and foundational technologies controlled under section 1758 of the Export Control Reform Act of 2018 (50 USC 4817).

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:

What is an "excepted investor"?

(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, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.

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.

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.

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.

What is an "excepted foreign state"?

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

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.

What are "critical technologies"?

The term critical technologies means the following:

• Defense articles or defense services included on the United States Munitions List (USML) set forth in the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130);
• Items included on the Commerce Control List (CCL) set forth in Supplement No. 1 to part 774 of the Export Administration Regulations (EAR) (15 CFR parts 730-774), and controlled—
  • Pursuant to multilateral regimes, including for reasons relating to national security, chemical and biological weapons proliferation, nuclear nonproliferation, or missile technology; or
  • For reasons relating to regional stability or surreptitious listening;
• Specially designed and prepared nuclear equipment, parts and components, materials, software, and technology covered by 10 CFR part 810 (relating to assistance to foreign atomic energy activities);
• Nuclear facilities, equipment, and material covered by 10 CFR part 110 (relating to export and import of nuclear equipment and material);
• Select agents and toxins covered by 7 CFR part 331, 9 CFR part 121, or 42 CFR part 73; and
• Emerging and foundational technologies controlled under section 1758 of the Export Control Reform Act of 2018 (50 USC 4817).

What is a "US regulatory authorization"?

The term US regulatory authorization means:

• a license or other approval issued by the Department of State under the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130);
• a license from the Department of Commerce under the Export Administration Regulations (EAR) (15 CFR parts 730-774);
• a specific or general authorization from the Department of Energy under the regulations governing assistance to foreign atomic energy activities at 10 CFR part 810 other than the general authorization described in 10 CFR 810.6(a); or
• a specific license from the Nuclear Regulatory Commission under the regulations governing the export or import of nuclear equipment and material at 10 CFR part 110.

For purposes of this question, a US regulatory authorization is not required if the export, reexport, transfer (in-country), or retransfer of the critical technology to the foreign investor is eligible for at least one of the following license exceptions under the EAR:

• Technology and Software—Unrestricted (TSU) (EAR § 740.13);
• Encryption Commodities, Software, and Technology (ENC) (EAR § 740.17(b)); or
• Strategic Trade Authorization (STA) (EAR § 740.20(c)(1)).

What are "critical technologies"?

The term critical technologies means the following:

• Defense articles or defense services included on the United States Munitions List (USML) set forth in the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130);
• Items included on the Commerce Control List (CCL) set forth in Supplement No. 1 to part 774 of the Export Administration Regulations (EAR) (15 CFR parts 730-774), and controlled—
  • Pursuant to multilateral regimes, including for reasons relating to national security, chemical and biological weapons proliferation, nuclear nonproliferation, or missile technology; or
  • For reasons relating to regional stability or surreptitious listening;
• Specially designed and prepared nuclear equipment, parts and components, materials, software, and technology covered by 10 CFR part 810 (relating to assistance to foreign atomic energy activities);
• Nuclear facilities, equipment, and material covered by 10 CFR part 110 (relating to export and import of nuclear equipment and material);
• Select agents and toxins covered by 7 CFR part 331, 9 CFR part 121, or 42 CFR part 73; and
• Emerging and foundational technologies controlled under section 1758 of the Export Control Reform Act of 2018 (50 USC 4817).

What is a "US regulatory authorization"?

The term US regulatory authorization means:

• a license or other approval issued by the Department of State under the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130);
• a license from the Department of Commerce under the Export Administration Regulations (EAR) (15 CFR parts 730-774);
• a specific or general authorization from the Department of Energy under the regulations governing assistance to foreign atomic energy activities at 10 CFR part 810 other than the general authorization described in 10 CFR 810.6(a); or
• a specific license from the Nuclear Regulatory Commission under the regulations governing the export or import of nuclear equipment and material at 10 CFR part 110.

For purposes of this question, a US regulatory authorization is not required if the export, reexport, transfer (in-country), or retransfer of the critical technology to the foreign investor is eligible for at least one of the following license exceptions under the EAR:

• Technology and Software—Unrestricted (TSU) (EAR § 740.13);
• Encryption Commodities, Software, and Technology (ENC) (EAR § 740.17(b)); or
• Strategic Trade Authorization (STA) (EAR § 740.20(c)(1)).

What are "critical technologies"?

The term critical technologies means the following:

• Defense articles or defense services included on the United States Munitions List (USML) set forth in the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130);
• Items included on the Commerce Control List (CCL) set forth in Supplement No. 1 to part 774 of the Export Administration Regulations (EAR) (15 CFR parts 730-774), and controlled—
  • Pursuant to multilateral regimes, including for reasons relating to national security, chemical and biological weapons proliferation, nuclear nonproliferation, or missile technology; or
  • For reasons relating to regional stability or surreptitious listening;
• Specially designed and prepared nuclear equipment, parts and components, materials, software, and technology covered by 10 CFR part 810 (relating to assistance to foreign atomic energy activities);
• Nuclear facilities, equipment, and material covered by 10 CFR part 110 (relating to export and import of nuclear equipment and material);
• Select agents and toxins covered by 7 CFR part 331, 9 CFR part 121, or 42 CFR part 73; and
• Emerging and foundational technologies controlled under section 1758 of the Export Control Reform Act of 2018 (50 USC 4817).

How is this voting interest calculated?

• In the case of an entity whose activities are primarily directed, controlled, or coordinated by or on behalf of a general partner, managing member, or equivalent, a person will be considered to have a voting interest only if it holds 25% or more of the interest in the general partner, managing member, or equivalent of the entity.
• For purposes of determining the percentage of voting interest held indirectly by one person in another, any interest of a parent will be deemed to be a 100% interest in any entity of which it is a parent.
• 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 holdings are aggregated.

What is the "National Industrial Security Program"?

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

What is the "National Industrial Security Program"?

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

What are "critical technologies"?

The term critical technologies means the following:

• Defense articles or defense services included on the United States Munitions List (USML) set forth in the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130);
• Items included on the Commerce Control List (CCL) set forth in Supplement No. 1 to part 774 of the Export Administration Regulations (EAR) (15 CFR parts 730-774), and controlled—
  • Pursuant to multilateral regimes, including for reasons relating to national security, chemical and biological weapons proliferation, nuclear nonproliferation, or missile technology; or
  • For reasons relating to regional stability or surreptitious listening;
• Specially designed and prepared nuclear equipment, parts and components, materials, software, and technology covered by 10 CFR part 810 (relating to assistance to foreign atomic energy activities);
• Nuclear facilities, equipment, and material covered by 10 CFR part 110 (relating to export and import of nuclear equipment and material);
• Select agents and toxins covered by 7 CFR part 331, 9 CFR part 121, or 42 CFR part 73; and
• Emerging and foundational technologies controlled under section 1758 of the Export Control Reform Act of 2018 (50 USC 4817).

"What are the specified license exceptions of the EAR?"

• The specified license exceptions are the following license exceptions from the EAR:
  • Technology and Software—Unrestricted (TSU) (15 C.F.R. § 740.13)
  • Encryption Commodities, Software, and Technology (ENC) (15 C.F.R. § 740.17(b))
  • Strategic Trade Authorization (STA) (15 C.F.R. § 740.20(c)(1))
     

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.

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:
    • 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
    • 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;
  • 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.

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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:
    • 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
    • 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;
  • 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.

What is an "excepted real estate investor"?

(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, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.

* 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, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.

* 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, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.

* 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, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.

* 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, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.

* 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, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.

* 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, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.

* 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.

* 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, New Zealand, 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.

* 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, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.

* 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, New Zealand, 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.

* 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, New Zealand, 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.

* 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, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.

* 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, New Zealand, 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.

* 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, New Zealand, 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.

* 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, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.

* 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, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.

* 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, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.

* 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, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.

* 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, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.

* 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, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.

* 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.

* 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, New Zealand, 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.

* 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, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.

* 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, New Zealand, 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.

* 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, New Zealand, 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.

* 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, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.

* 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, New Zealand, 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.

* 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, New Zealand, 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:
    • 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
    • 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;
  • 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.

* 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, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.

* 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, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.

* 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, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.

* 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, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.

* 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, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.

* 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, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.

* 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.

* 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, New Zealand, 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.

* 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, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.

* 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, New Zealand, 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.

* 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, New Zealand, 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.

* 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, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.

* 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, New Zealand, 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.

* 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, New Zealand, 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.

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).

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.

	Farhad Jalinous Partner, Washington, DC +1 202 626 3691 farhad.jalinous@whitecase.com
	Karalyn Mildorf Partner, Washington, DC +1 202 626 6489 karalyn.mildorf@whitecase.com
	Keith Schomig Partner, Washington, DC +1 202 729 2330 keith.schomig@whitecase.com

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.

	Farhad Jalinous Partner, Washington, DC +1 202 626 3691 farhad.jalinous@whitecase.com
	Karalyn Mildorf Partner, Washington, DC +1 202 626 6489 karalyn.mildorf@whitecase.com
	Keith Schomig Partner, Washington, DC +1 202 729 2330 keith.schomig@whitecase.com

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.

	Farhad Jalinous Partner, Washington, DC +1 202 626 3691 farhad.jalinous@whitecase.com
	Karalyn Mildorf Partner, Washington, DC +1 202 626 6489 karalyn.mildorf@whitecase.com
	Keith Schomig Partner, Washington, DC +1 202 729 2330 keith.schomig@whitecase.com

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.

	Farhad Jalinous Partner, Washington, DC +1 202 626 3691 farhad.jalinous@whitecase.com
	Karalyn Mildorf Partner, Washington, DC +1 202 626 6489 karalyn.mildorf@whitecase.com
	Keith Schomig Partner, Washington, DC +1 202 729 2330 keith.schomig@whitecase.com

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.

	Farhad Jalinous Partner, Washington, DC +1 202 626 3691 farhad.jalinous@whitecase.com
	Karalyn Mildorf Partner, Washington, DC +1 202 626 6489 karalyn.mildorf@whitecase.com
	Keith Schomig Partner, Washington, DC +1 202 729 2330 keith.schomig@whitecase.com

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.

	Farhad Jalinous Partner, Washington, DC +1 202 626 3691 farhad.jalinous@whitecase.com
	Karalyn Mildorf Partner, Washington, DC +1 202 626 6489 karalyn.mildorf@whitecase.com
	Keith Schomig Partner, Washington, DC +1 202 729 2330 keith.schomig@whitecase.com

What are "critical technologies"?

The term critical technologies means the following:

• Defense articles or defense services included on the United States Munitions List (USML) set forth in the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130);
• Items included on the Commerce Control List (CCL) set forth in Supplement No. 1 to part 774 of the Export Administration Regulations (EAR) (15 CFR parts 730-774), and controlled—
  • Pursuant to multilateral regimes, including for reasons relating to national security, chemical and biological weapons proliferation, nuclear nonproliferation, or missile technology; or
  • For reasons relating to regional stability or surreptitious listening;
• Specially designed and prepared nuclear equipment, parts and components, materials, software, and technology covered by 10 CFR part 810 (relating to assistance to foreign atomic energy activities);
• Nuclear facilities, equipment, and material covered by 10 CFR part 110 (relating to export and import of nuclear equipment and material);
• Select agents and toxins covered by 7 CFR part 331, 9 CFR part 121, or 42 CFR part 73; and
• Emerging and foundational technologies controlled under section 1758 of the Export Control Reform Act of 2018 (50 USC 4817).

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"?

(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 2000ff(7).

(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.

What are "critical technologies"?

The term critical technologies means the following:

• Defense articles or defense services included on the United States Munitions List (USML) set forth in the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130);
• Items included on the Commerce Control List (CCL) set forth in Supplement No. 1 to part 774 of the Export Administration Regulations (EAR) (15 CFR parts 730-774), and controlled—
  • Pursuant to multilateral regimes, including for reasons relating to national security, chemical and biological weapons proliferation, nuclear nonproliferation, or missile technology; or
  • For reasons relating to regional stability or surreptitious listening;
• Specially designed and prepared nuclear equipment, parts and components, materials, software, and technology covered by 10 CFR part 810 (relating to assistance to foreign atomic energy activities);
• Nuclear facilities, equipment, and material covered by 10 CFR part 110 (relating to export and import of nuclear equipment and material);
• Select agents and toxins covered by 7 CFR part 331, 9 CFR part 121, or 42 CFR part 73; and
• Emerging and foundational technologies controlled under section 1758 of the Export Control Reform Act of 2018 (50 USC 4817).

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"?

(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 2000ff(7).

(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.

What are "critical technologies"?

The term critical technologies means the following:

• Defense articles or defense services included on the United States Munitions List (USML) set forth in the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130);
• Items included on the Commerce Control List (CCL) set forth in Supplement No. 1 to part 774 of the Export Administration Regulations (EAR) (15 CFR parts 730-774), and controlled—
  • Pursuant to multilateral regimes, including for reasons relating to national security, chemical and biological weapons proliferation, nuclear nonproliferation, or missile technology; or
  • For reasons relating to regional stability or surreptitious listening;
• Specially designed and prepared nuclear equipment, parts and components, materials, software, and technology covered by 10 CFR part 810 (relating to assistance to foreign atomic energy activities);
• Nuclear facilities, equipment, and material covered by 10 CFR part 110 (relating to export and import of nuclear equipment and material);
• Select agents and toxins covered by 7 CFR part 331, 9 CFR part 121, or 42 CFR part 73; and
• Emerging and foundational technologies controlled under section 1758 of the Export Control Reform Act of 2018 (50 USC 4817).

• any internet protocol network that has access to every other internet protocol network solely via settlement-free peering.
• any 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.
• any internet exchange point that supports public peering.
• 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.
• any data center that is collocated at a submarine cable landing point, landing station, or termination station.
• any satellite or satellite system providing services directly to the Department of Defense or any component thereof.
• 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)).
• any electric storage resource, as defined in 18 CFR 35.28(b)(9), as amended, that is physically connected to the bulk-power system.
• any facility that provides electric power generation, transmission, distribution, or storage directly to or located on any military installation identified in § 802.227.
• any individual refinery with the capacity to produce 300,000 or more barrels per day (or equivalent) of refined oil or gas products.
• one or more refineries with the capacity to produce, in the aggregate, 500,000 or more barrels per day (or equivalent) of refined oil or gas products.
• any crude oil storage facility with the capacity to hold 30 million barrels or more of crude oil.
• any liquefied natural gas (LNG) import or export terminal requiring:
  • approval under section 3(e) of the Natural Gas Act, as amended (15 USC 717b(e)), or
  • a license under section 4 of the Deepwater Port Act of 1974, as amended (33 USC 1503).
• any 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).
• 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).
• 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:
  • 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
  • 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.
• any technology service provider in the Significant Service Provider Program of the Federal Financial Institutions Examination Council that provides core processing services.
• any rail line and associated connector line designated as part of the Department of Defense's Strategic Rail Corridor Network.
• any interstate oil pipeline that:
  • has the capacity to transport:
    • 500,000 barrels per day or more of crude oil, or
    • 90 million gallons per day or more of refined petroleum product; or
  • directly serves the strategic petroleum reserve, as defined in section 152 of the Energy Policy and Conservation Act, as amended (42 USC 6232).
• any interstate natural gas pipeline with an outside diameter of 20 or more inches.
• any airport identified in § 802.210(a)(1) through (3).
• any:
  • maritime port identified in § 802.210(a)(4) or (5); or
  • any individual terminal at such maritime ports.
• 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:
  • regularly serves 10,000 individuals or more, or
  • directly serves any military installation identified in § 802.227.
• any industrial resource that is a facility 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:
  • 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
  • the industrial resource:
    • requires 12 months or more to manufacture; or
    • is a "long lead" item, to the extent the US business has been notified that such industrial resource is a "long lead" item.
• any industrial resource that is a facility that has been funded, in whole or in part, by any of the following sources within 60 months of the transaction in question:
  • Defense Production Act of 1950 Title III program, as amended (50 USC 4501 et seq.);
  • 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);
  • Rapid Innovation Fund under section 1073 of Ike Skelton National Defense Authorization Act for Fiscal Year 2011, as amended (10 USC 2359a);
  • Manufacturing Technology Program under 10 USC 2521, as amended;
  • Defense Logistics Agency Warstopper Program, as described in DLA Instruction 1212, Industrial Capabilities Program - Manage the WarStopper Program; or
  • Defense Logistics Agency Surge and Sustainment contract, as described in Subpart 17.93 of the Defense Logistics Acquisition Directive.

• 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) 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:
  • 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
  • the industrial resource:
    • requires 12 months or more to manufacture; or
    • is a "long lead" item, to the extent the US business has been notified that such industrial resource is a "long lead" item.
• 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), under a "DX" priority rated contract or order under the Defense Priorities and Allocations System regulation (15 CFR part 700, as amended) within 24 months of the transaction in question.
• any of the following in the United States:
  • 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);
  • covered material, as defined in 10 USC 2533c, as amended;
  • chemical weapons antidote contained in automatic injectors, as described in 10 USC 2534, as amended; or
  • 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.
• any industrial resource other than commercially available off-the-shelf items, as defined in 41 USC104, as amended that has been funded, in whole or in part, by any of the following sources within 60 months of the transaction in question:
  • Defense Production Act of 1950 Title III program, as amended (50 USC 4501 et seq.);
  • 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);
  • Rapid Innovation Fund under section 1073 of Ike Skelton National Defense Authorization Act for Fiscal Year 2011, as amended (10 USC 2359a);
  • Manufacturing Technology Program under 10 USC 2521, as amended;
  • Defense Logistics Agency Warstopper Program, as described in DLA Instruction 1212, Industrial Capabilities Program - Manage the WarStopper Program; or
  • Defense Logistics Agency Surge and Sustainment contract, as described in Subpart 17.93 of the Defense Logistics Acquisition Directive.
• any industrial control system utilized by:
  • 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)); or
  • a facility directly serving any military installation by providing electric power generation, transmission, distribution, or storage directly to or located on any military installation identified in § 802.227.
• any industrial control system utilized by:
  • an interstate oil pipeline that:
  • has the capacity to transport:
    • 500,000 barrels per day or more of crude oil, or
    • 90 million gallons per day or more of refined petroleum product; or
  • directly serves the strategic petroleum reserve, as defined in section 152 of the Energy Policy and Conservation Act, as amended (42 USC 6232); or
  • an interstate natural gas pipeline with an outside diameter of 20 or more inches.
• any industrial control system utilized by a 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:
  • regularly serves 10,000 individuals or more, or
  • directly serves any military installation identified in § 802.227.

• 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.
• any industrial control system utilized by:
  • 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)); or
  • a facility directly serving any military installation by providing electric power generation, transmission, distribution, or storage directly to or located on any military installation identified in § 802.227.
• any industrial control system utilized by:
  • an interstate oil pipeline that:
    • has the capacity to transport:
      • 500,000 barrels per day or more of crude oil, or
      • 90 million gallons per day or more of refined petroleum product; or
    • directly serves the strategic petroleum reserve, as defined in section 152 of the Energy Policy and Conservation Act, as amended (42 USC 6232); or
  • an interstate natural gas pipeline with an outside diameter of 20 or more inches.
• any industrial control system utilized by a 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:
  • regularly serves 10,000 individuals or more, or
  • directly serves any military installation identified in § 802.227
• any industrial control system utilized by:
  • 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)); or
  • a facility directly serving any military installation by providing electric power generation, transmission, distribution, or storage directly to or located on any military installation identified in § 802.227.
• any industrial control system utilized by:
  • an interstate oil pipeline that:
    • has the capacity to transport:
      • 500,000 barrels per day or more of crude oil, or
      • 90 million gallons per day or more of refined petroleum product; or
    • directly serves the strategic petroleum reserve, as defined in section 152 of the Energy Policy and Conservation Act, as amended (42 USC 6232); or
  • an interstate natural gas pipeline with an outside diameter of 20 or more inches.
• any industrial control system utilized by a 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:
  • regularly serves 10,000 individuals or more, or
  • directly serves any military installation identified in § 802.227.

• 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.

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.

What are "critical technologies"?

The term critical technologies means the following:

• Defense articles or defense services included on the United States Munitions List (USML) set forth in the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130);
• Items included on the Commerce Control List (CCL) set forth in Supplement No. 1 to part 774 of the Export Administration Regulations (EAR) (15 CFR parts 730-774), and controlled—
  • Pursuant to multilateral regimes, including for reasons relating to national security, chemical and biological weapons proliferation, nuclear nonproliferation, or missile technology; or
  • For reasons relating to regional stability or surreptitious listening;
• Specially designed and prepared nuclear equipment, parts and components, materials, software, and technology covered by 10 CFR part 810 (relating to assistance to foreign atomic energy activities);
• Nuclear facilities, equipment, and material covered by 10 CFR part 110 (relating to export and import of nuclear equipment and material);
• Select agents and toxins covered by 7 CFR part 331, 9 CFR part 121, or 42 CFR part 73; and
• Emerging and foundational technologies controlled under section 1758 of the Export Control Reform Act of 2018 (50 USC 4817).

What is "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 2000ff(7).

(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.

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 "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.

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.

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.

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.

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 "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 responses, the transaction appears to be a covered control 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 Partner, Washington, DC +1 202 626 3691 farhad.jalinous@whitecase.com
	Karalyn Mildorf Partner, Washington, DC +1 202 626 6489 karalyn.mildorf@whitecase.com
	Keith Schomig Partner, Washington, DC +1 202 729 2330 keith.schomig@whitecase.com

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 Partner, Washington, DC +1 202 626 3691 farhad.jalinous@whitecase.com
	Karalyn Mildorf Partner, Washington, DC +1 202 626 6489 karalyn.mildorf@whitecase.com
	Keith Schomig Partner, Washington, DC +1 202 729 2330 keith.schomig@whitecase.com

What is an "excepted foreign state"?

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

What is an "excepted foreign state"?

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

What is an "excepted foreign state"?

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

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, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.

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, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.

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, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.

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.

What is an "excepted foreign state"?

The term excepted foreign state means Australia, Canada, New Zealand, 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.

What is an "excepted foreign state"?

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

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, New Zealand, 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.

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, New Zealand, 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.

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, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.

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, New Zealand, 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.

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, New Zealand, 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.

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:
    • 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
    • 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;
  • 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.