Page 22 - The CFIUS Book
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THE CFIUS BOOK
1.1.5. Special Cases: Non-controlling investments that may be considered covered
non-conTrolling inVesTMenTs
Friendly Critical technology Investment countries Critical infrastructure funds
Real estate near sensitive sites
1.1.5.1 Investments in Critical Infrastructure and Critical Technology companies
FIRRMA has expanded CFIUS’s jurisdiction to investments by, or change in rights of, a foreign person in any U.S. business that does any of the following:
l owns, operates, manufacturers, supplies or services critical infrastructure;
l produces, designs, tests, manufacturers, fabricates or develops one or more
critical technologies; or
l maintains or collects sensitive personal data of United States citizens that may be exploited in a matter that threatens national security.17
Certain types of passive investments will be covered by this expansion. CFIUS would be able to review investments through which a foreign person does any of the following:
l obtains access to material non-public information;
l obtains membership or board rights; or
l undertakesanyinvolvement,beyondvotingitsshares,insubstantivedecisions by the U.S. companies.
FIRRMA requires CFIUS to promulgate regulations to define material information, to provide guidance on which transactions will be considered non-controlling investments, and to limit review of critical infrastructure to a subset of that category that is “likely to be of importance” to U.S. national security.
CFIUS is directed to develop and publish those regulations by February 2020.
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