cfius excepted foreign states

[FR Doc. In January 2020, CFIUS identified the United Kingdom (UK), Canada, and Australia as "excepted foreign states" - thereby excluding from CFIUS's jurisdiction covered investments by certain foreign persons that are organized in and otherwise closely tied to one or more of these countries. About the Federal Register On January 5, 2022, CFIUS added New Zealand to its list of excepted foreign states on its website based on, among other factors, "its intelligence-sharing relationship with . Upon review, CFIUS can block or unwind a transaction or require the parties to alter the transaction to mitigate . Federal Register. As further explained in the Treasury Fact Sheet, the CFIUS regulations limit CFIUS jurisdiction over certain investors from an excepted foreign state, lowering the burden for those foreign investors. Just last week, the UKs National Security and Investment Act 2021 came into force and the one-year extension is understood to give the UK time to meet CFIUSs criteria. CFIUS selected these countries due to their "robust intelligence-sharing" and "defense industrial base integration mechanisms" with the U.S. This more-limited jurisdiction is underpinned by the excepted states' own foreign investment screening regimes and coordination with the United States on matters relating to investment security. CFIUS or the Committee: Committee on Foreign Investment in the United States CMS: Case Management System EAR: Export Administration Regulations FIRRMA: Foreign Investment Risk Review Modernization Act of 2018 FINSA: Foreign Investment & National Security Act of 2007 ITAR: International Traffic in Arms Regulations For questions about this rule, contact: Laura Black, Director of Investment Security Policy and International Relations, Meena R. Sharma, Deputy Director of Investment Security Policy and International Relations, or Richard Rowe, Senior Policy Advisor, at U.S. Department of the Treasury, 1500 Pennsylvania Avenue NW, Washington, DC 20220; telephone: (202) 622-3425; email: Finally, CFIUS added New Zealand based on its All comments received by the end of the comment period are available on the public rulemaking docket at These tools are designed to help you understand the official document For the UK and New Zealand to remain excepted foreign states and excepted real estate foreign states after February 12, 2023, CFIUS must publish the relevant determinations regarding those countries foreign investment review processes and coordination with the United States on investment security matters. Committee on Foreign Investment in the United States (CFIUS). These actions reflect continued effort by partners across the Five Eyes Alliance to establish, implement, resource, and operate effective and robust investment screening authorities to address national security risk that can arise from foreign investment while maintaining open investment. It is not an official legal edition of the Federal 2023 Stroock & Stroock & Lavan LLP All rights reserved. provide legal notice to the public or judicial notice to the courts. As stated in the preamble to the proposed rule, the Committee had determined that extending the time period before which such requirements become applicable is desirable given certain ongoing changes to foreign investment review regimes. By: Federal Register electronic version on GPOs govinfo.gov. 9To qualify for excepted investor status entities must establish both that they are organized under the laws of an excepted foreign state or the United States and have its principal place of business in an excepted foreign state. This rule has been submitted to the Office of Information and Regulatory Affairs (OIRA), which has determined that the rule is not a major rule under the Congressional Review Act. Subscribe to Torys insights for our latest commentary, webinar and events schedule and more. We access and process information from these cookies at an aggregate level. should verify the contents of the documents against a final, official A list of the partners is available for inspection at Eighth Floor, Ten Bishops Square, London E1 6EG. rendition of the daily Federal Register on FederalRegister.gov does not Therefore, Australia and Canada are and will remain excepted foreign states absent further Committee action and notice in the Federal Register . February 10, 2023 WASHINGTON - Today, the Department of the Treasury announces actions taken by the Committee on Foreign Investment in the United States (CFIUS) related to excepted foreign states (EFS). https://home.treasury.gov/policy-issues/international/the-committee-on-foreign-investment-in-the-united-states-cfius/cfius-excepted-foreign-states 802.215. Part 802 refers to excepted real estate foreign state and excepted real estate investor, however, for ease of review we use excepted foreign state and excepted investor for purposes of both Part 800 and Part 802 in this alert. These criteria include the principal place of business and incorporation, as well as ties to certain eligible countries. edition of the Federal Register. This document has been published in the Federal Register. The determination that the UK, Canada, and Australia are excepted foreign states was made without regard to the second test, given that the effective date had been delayed. 31 C.F.R. CFIUS updates Excepted Foreign States Authors Christopher M. Caparelli On January 6, 2022, the Committee on Foreign Investment in the United States (CFIUS) published a final rule updating the status of countries designated as "Excepted Foreign States" and "Excepted Real Estate Foreign States" 1. On May 27, 2023, the new federal Lobbyists' Code of Conduct (New Code) was published in the Canada Gazette. CFIUS must make similar determinations regarding the United Kingdom and New Zealand before February 13, 2023 (or further extend the deadline to make that determination) for investors from those countries to remain eligible to qualify as excepted investors after that date. . Office of Investment Security, Department of the Treasury. Register documents. 800.218 and 802.214, respectively). This prototype edition of the CFIUS identified New Zealand as eligible based on its intelligence-sharing relationship with the United States and its collective defense arrangement and cooperation with the United States. CFIUS previously identified Australia, Canada, and the United Kingdom (UK) as eligible foreign states in February 2020 due to aspects of their robust intelligence-sharing and defense industrial base integration mechanisms with the United States.. More information and documentation can be found in our Recent Developments. CFIUS.FIRRMA@treasury.gov. This site displays a prototype of a Web 2.0 version of the daily The final rule therefore does not impose any additional burden on potential filers, including small businesses. To retain 13, 2023, to make such a determination. should verify the contents of the documents against a final, official If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances. the current document as it appeared on Public Inspection on and Australia have done so, they are and will remain excepted 2. Kingdom of Great Britain and Northern Ireland as eligible excepted foreign states under the Part 800 Rule and as eligible excepted real estate foreign . This PDF is legal research should verify their results against an official edition of Necessary cookies enable core functionality such as security, network management, and accessibility. The final rule therefore adopts the proposed rule without change. real estate investors" from these countries are not subject to All rights reserved. 1 For the determination under Part 800, see Determination Regarding Excepted Foreign States, 87 Fed. This second criterion is a Committee determination under 800.1001(a) for each eligible foreign state that it has established and is effectively utilizing a robust process to analyze foreign investments for national security risks and to facilitate coordination with the United States on matters relating to investment security, and a Committee determination under 802.1001(a) for each eligible foreign state that it has made significant progress toward establishing and effectively utilizing the robust process that is described in 800.1001. Reg. Register documents. coordination with the United States on matters relating to As described in the preamble to the proposed rule, excepted foreign state and excepted real estate foreign state are each defined by a two-criteria conjunctive test, with delayed effectiveness for the second criterion. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. 31 C.F.R. The Treasury Department considered each submitted comment. The Committee on Foreign Investment in the United States (CFIUS) is a U.S. inter-agency committee that reviews "covered transactions" - foreign acquisitions of and investments in U.S. companies - for national security concerns. It is not an official legal edition of the Federal The OFR/GPO partnership is committed to presenting accurate and reliable We need this to enable us to match you with other users from the same organisation. In its Fact Sheet, the Treasury explained that the decision was made based "on [New Zealand's] intelligence-sharing relationship with the United States and its collective defense arrangement and cooperation with the United States." further CFIUS action. Laura Black. 875, Jan. 7, 2022. Youll only need to do it once, and readership information is just for authors and is never sold to third parties. Please note that email communications to the firm through this website do not create an attorney-client relationship between you and the firm. The definition of excepted foreign state is, however, a two-pronged definition. Federal Register. 605(b), that this final rule will not have a significant economic impact on a substantial number of small entities. The Department of the Treasury issued notices in the Federal Register announcing that CFIUS had determined that each of New Zealand and the United Kingdom had satisfied the criteria set forth in 31 C.F.R. Mondaq uses cookies on this website. Namely, CFIUS must determine that the eligible foreign state has made significant progress toward establishing and effectively utilizing a robust foreign investment screening process. Additional countries, including Japan and Germany, recently passed laws to strengthen their respective foreign investment review process and may qualify as excepted foreign states in the near future. 800.1001(a). The criteria for excepted real estate foreign states is slightly different under the CFIUS real estate regulations. Mondaq Ltd 1994 - 2023. Accordingly, CFIUS now has until February 13, 2023 to make this determination with respect to the United Kingdom and New Zealand and thereby allow them to remain on the list of excepted foreign states. 2021-28598 Filed 1-5-22; 8:45 am]. Office of Investment Security, Department of the Treasury. CFIUS finalized its proposed rule extending its deadline to make determinations regarding the sufficiency of the foreign investment screening mechanism for the countries on the initial list of excepted foreign states. A Rule by the Investment Security Office on 01/06/2022. the Federal Register. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Part 802.1 By satisfying the criteria outlined in the regulations, Australia and Canada will now remain excepted foreign states and excepted real estate foreign states absent future CFIUS action and publication in the Federal Register. You may disable these by changing your browser settings, but this may affect how the website functions. the Federal Register. For more information about Akin Gump LLP, Akin Gump Strauss Hauer & Feld LLP and other associated entities under which the Akin Gump network operates worldwide, please see our Legal Notices page. Katherine Padgett. The Committee, taking into consideration the factors identified on the Committee's section of the Department of the Treasury website, has determined, under the authority of section 721 of the Defense Production Act of 1950, as amended, and 31 CFR 800.1001(a), that: (1) Australia has established and is effectively utilizing a robust process to analyze foreign investments for national security risks and to facilitate coordination with the United States on matters relating to investment security; and (2) Canada has established and is effectively utilizing a robust process to analyze foreign investments for national security risks and to facilitate coordination with the United States on matters relating to investment security. New Zealand is now also added to the list of eligible excepted foreign states. If you have any questions concerning this alert, please contact: 1 For a more in-depth discussion of these changes, please see our prior alerts on this subject here and here. All Rights Reserved. thereby relieving many investors based in those countries of new In February 2020, Canada, Australia and the United Kingdom (UK) were provisionally designated as Excepted Foreign States and Excepted Real Estate Foreign States, thereby relieving many investors based in those countries of new CFIUS rules applicable to subsequent investments in U.S. businesses and real estate. 1. These terms operate together with other relevant terms to provide an exception from the jurisdiction of the Committee on Foreign Investment in the United States (CFIUS or the Committee) over covered investments by certain foreign persons who meet specific criteria establishing sufficiently close ties to certain foreign states, as well as certain other provisions of the Foreign Investment Risk Review Modernization Act of 2018. In February 2020, Canada, Australia and the United Kingdom (UK) The proposed rule would not make any change to the two-pronged test. Finally, CFIUS also identified New Zealand as an eligible foreign state under 31 C.F.R. The hallmark of Holland & Knight's success has always been and continues to be legal work of the highest quality, performed by well prepared lawyers who revere their profession and are devoted to their clients. This final rule adopts without change the proposed rule modifying the definitions of excepted foreign state and excepted real estate foreign state by extending by one year the effective date of one of two criteria set forth in the definitions in the regulations implementing certain provisions of Section 721 of the Defense Production Act of 1950, as amended. Treasury identified three countries as "excepted foreign states," based on their intel sharing and defense industrial base integration mechanisms with the U.S. A . After a few years of debating and making into law, the Committee on Foreign Investment in the U.S. (CFIUS) regulations implementing the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA) took effect on Feb. 13, 2020. CFIUS also extended the deadline for the U.K. to satisfy the criteria outlined in the CFIUS regulations for excepted foreign states and excepted real estate foreign states. To discuss these issues, please contact the author(s). Instead of becoming effective on February 13, 2022, each such second criterion will become effective on February 13, 2023. CFIUS has "initially" selected Australia, Canada, and the United Kingdom of Great Britain and Northern Ireland as excepted foreign states. 802.1001(a) (emphasis added). A. Definitions of Excepted Foreign State and Excepted Real Estate Foreign StateSections 800.218 and 802.214, B. Excepted Foreign States and Excepted Real Estate Foreign States, PART 800REGULATIONS PERTAINING TO CERTAIN INVESTMENTS IN THE UNITED STATES BY FOREIGN PERSONS, PART 802REGULATIONS PERTAINING TO CERTAIN TRANSACTIONS BY FOREIGN PERSONS INVOLVING REAL ESTATE IN THE UNITED STATES, https://www.federalregister.gov/d/2021-28599, MODS: Government Publishing Office metadata, https://home.treasury.gov/policy-issues/international/the-committee-on-foreign-investment-in-the-united-states-cfius/cfius-excepted-foreign-states. 802.1001(a), with respect to excepted real estate foreign states. the official SGML-based PDF version on govinfo.gov, those relying on it for It is also part of the information that we share to our content providers ("Contributors") who contribute Content for free for your use. 1503 & 1507. 50 U.S.C. The final rule extends the effectiveness of the second criterion with respect to each definition. has no substantive legal effect. defense arrangement and cooperation. Just last week, the UK's National Security and Investment . Considering the foregoing, the Secretary of the Treasury certifies, pursuant to 5 U.S.C. On November 15, 2021, the Department of the Treasury (Treasury Department) published a proposed rule amending the definitions of excepted foreign state and excepted real estate foreign state in 31 CFR part 800 and 31 CFR part 802, respectively. With respect to the UK, CFIUS extended by a year, to February 13, 2023, to make such a determination. Specifically, based on their establishment and use of their own robust foreign investment screening programs, CFIUS has determined that New Zealand and the United Kingdom have met the EFS determination requirements under CFIUS regulations. One comment supported the proposed rule and asked whether foreign states understand the determination criteria set forth in 802.1001(a). Information about this document as published in the Federal Register. Document page views are updated periodically throughout the day and are cumulative counts for this document. countries designated as "Excepted Foreign States" and UK's National Security and Investment Act 2021 came into force Register (ACFR) issues a regulation granting it official legal status. investments in U.S. real estate by qualified "excepted Counts are subject to sampling, reprocessing and revision (up or down) throughout the day. The Committee on Foreign Investment in the United States (CFIUS) determined that Australia and Canada satisfied all of the criteria for a permanent status as excepted foreign states. 1503 & 1507. These can be useful 2023 Wiley Rein LLP All Rights Reserved. Akin is the practicing name of Akin Gump LLP, a New York limited liability partnership authorized and regulated by the Solicitors Regulation Authority under number 267321. (The FIRRMA regulation creates a process for other countries to qualify as excepted foreign states. CFIUS previously identified the UK and New Zealand as eligible foreign states under the excepted foreign state and excepted real estate foreign state regulations (at 31 C.F.R. informational resource until the Administrative Committee of the Federal the material on FederalRegister.gov is accurately displayed, consistent with "Excepted Foreign States" and "Excepted Investor" The final rules identify Australia, Canada, and the United Kingdom in the initial list of approved excepted foreign states based on the United States' robust intelligence sharing and defense industrial base integration with those countries. Excepted foreign states. Use the PDF linked in the document sidebar for the official electronic format. Similarly, investment funds based in and managed by nationals of excepted foreign states can have difficulty qualifying due to, among other things, the requirement that the investment vehicle and each of its parents be located in an excepted foreign state or the United States, which often is not the case. "excepted" status exempts the nationals, governmental The list of excepted foreign states and additional information with respect to the Committee on Foreign Investment in the United States (CFIUS or the Committee) are available on the Committee's section of the Department of the Treasury website. 2023 Wiley Rein LLP All Rights Reserved. Therefore, Australia and Canada will remain excepted foreign states and excepted real estate foreign states absent further Committee action. . It would make no change to any country's status as an excepted foreign state or excepted real estate foreign state and thus would make no change to any investors status as an excepted foreign investor or excepted real estate foreign investor. The public disclosure of the factors that CFIUS will consider in its determinations is informative to foreign states of the progress needed to meet the definitions of excepted foreign state and excepted real estate foreign state. and real estate. In response to the U.S. Foreign Investment Risk Review Modernization Act (FIRRMA) and Committee on Foreign Investment in the United States (CFIUS) regulations establishing the "Excepted Foreign State" rules, the U.K. amended its foreign investment review regime by passing the National Security and Investment Act (NSI Act) 2021. Start Printed Page 732. About the Federal Register The Committee on Foreign Investment in the United States ("CFIUS") issued final regulations on January 13, 2020 to comprehensively implement the Foreign Investment Risk Review Modernization Act of 2018 ("FIRRMA") (the "Regulations"). CFIUS has now conferred Canada and Australia with such status indefinitely. daily Federal Register on FederalRegister.gov will remain an unofficial A similar rule governs foreign investment in real estate. If you are using public inspection listings for legal research, you While every effort has been made to ensure that investments for national security impacts. The authority citation for part 802 continues to read: 4. Budget, Financial Reporting, Planning and Performance, Financial Markets, Financial Institutions, and Fiscal Service, Treasury Coupon-Issue and Corporate Bond Yield Curve, Treasury International Capital (TIC) System, Kline-Miller Multiemployer Pension Reform Act of 2014, Post 5: Racial Differences in Educational Experiences and Attainment, The U.S. Economic Recovery in International Context, FATF Advances Work in Combatting Corruption, Takes Steps to Mitigate Unintended Consequences for Non-Profits, Treasury Department Announces Approval of Federal Funds to Connect 33,000 Washington State Homes and Businesses to Affordable, High-Speed Internet as Part of President Bidens Investing in America Agenda, Treasury Department Releases Fact Sheet Detailing Investments in the Economic Future of Latino Communities, Remarks by Deputy Secretary Adeyemo at the First Treasury Department Summit on Investing in the Economic Future of Latino Communities, Remarks by Secretary of the Treasury Janet L. Yellen at High Level Panel at Summit for a New Global Financing Pact, Remarks by Secretary of the Treasury Janet L. Yellen at Press Conference at Summit for a New Global Financing Pact, Form 941, employer's quarterly federal tax return, Voluntary Notice Filing Instructions (Part 800), Declaration Submission Instructions (Part 800), CFIUS Pilot Program Instructions (Part 801), CFIUS Real Estate Instructions (Part 802), Macroeconomic and Foreign Exchange Policies of Major Trading Partners of the United States, U.S.-China Comprehensive Economic Dialogue, Special Inspector General, Troubled Asset Relief Program (SIGTARP), Administrative Resource Center (ARC)- Bureau of the Fiscal Service. 331 C.F.R. This table of contents is a navigational tool, processed from the CFIUS added New Zealand to its white list of excepted foreign states, joining Australia, Canada and the United Kingdom in the group of countries whose investors may qualify for jurisdictional carve-outs and exemptions from mandatory filing for their investments. guide to the subject matter. Only official editions of the Document page views are updated periodically throughout the day and are cumulative counts for this document. The rule extends CFIUSs deadline by one year, to February 13, 2023 to make a determination that an eligible foreign state has established and is effectively utilizing a robust process to analyze foreign investments for national security risks and to facilitate coordination with the United States on matters relating to investment security (or, in the case of potential excepted real estate foreign states, that the foreign state has made significant progress towards doing so). Second, although the addition of New Zealand to the CFIUS white list of excepted foreign states demonstrates some willingness by CFIUS to expand the benefits of the jurisdictional carve-outs and mandatory filing exemptions to additional groups of investors, the group remains contained to members of the 5 Eyes. within CFIUS jurisdiction; and. UK, and newly-added New Zealand, retain such status until at Because CFIUS has concluded that Canada and Australia have done so, they are and will remain excepted foreign states and excepted real estate foreign states absent further CFIUS action. Federal Register provide legal notice to the public and judicial notice Version on GPOs govinfo.gov the final rule extends the effectiveness of the second with. February 13, 2022, each such second criterion with respect to each definition document has been published the. 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