Page 44 - The CFIUS Book

THE CFIUS BOOK
4. Target Products and Market Share
In deals involving large, sophisticated acquirers or targets, the parties will have conducted a market share analysis. This information is not always tailored to address each product or service category, so there is often work to do even in large transactions.
For smaller players, you may be starting from scratch. Our experience is that CFIUS requires this information even in small deals. This means the target must identify a reasonable methodology to calculate market share by product or service category. Reasonable estimates are better than no information.
5. EAR, ITAR, Classified, or Nuclear Products
§800.402(c)(3)(i): Their respective business activities, as, for example, set forth in annual reports, and the product or service categories of each, including an estimate of U.S. market share for such product or service categories and the methodology used to determine market share, and a list of direct competitors for those primary product or service categories.
§800.402(c)(4): whether the U.S. business that is being acquired produces or trades in:
• Items subject to the Ear and their description;
• Items and services covered by the USml in the ITar and their description;
• Items subject to department of Energy or nuclear regulatory Commission
export authorization; or
• Select agents and Toxins (7 CFr part 331, 9 CFr part 121, and 42 CFr part
73);.
The first step to getting past the pitfall of this question is to know what you know. Has the target identified the export control jurisdiction and classification of its products, services, and technologies? If not, you may have some work to do. Additionally, both the ITAR and the EAR cover not only physical exports, but also exports via “disclosure” to a foreign national (including by oral or visual disclosure) of U.S.-origin technology, technical data, and other know-how. The parties need to get a handle on all these moving parts in order to file a complete CFIUS notification.
And remember, just because a thing has not yet been exported does not mean it is not controlled: the ITAR requires registration just to manufacture ITAR-controlled items. We have seen cases where the target has been operating without a required ITAR registration. That situation must be remedied before submitting the CFIUS notification.
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