After months of hearings and other deliberations, Congress passed, and President Trump signed into law on August 13, 2018, the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA). FIRRMA marks the first update to the Committee on Foreign Investment in the United States (CFIUS) in over a decade and will considerably expand the jurisdiction of the Committee and make other important changes to its rules. A text of the final version of FIRRMA (Sections 1701 to 1728 of the National Defense Authorization Act for Fiscal Year 2019 (NDAA)), is available here. The NDAA also includes comprehensive US export control reform legislation that (among other things) mandates increased US export controls over “emerging and foundational technologies” to address some of the US national security concerns that had led to calls for CFIUS reform. FIRRMA has gone through a number of revisions as it advanced in Congress and earlier versions of the bill are discussed in our previous International Law Advisories from June and January of this year.
The changes to CFIUS in FIRRMA are far-reaching. First, and most significantly, CFIUS’s jurisdiction will expand to cover additional investments in US critical infrastructure and critical technology companies and US companies that deal with substantial amounts of US personal data, certain real estate transactions, and concessions at ports and airports. This change will not go into effect until CFIUS updates its regulations and defines a number of key terms. Second, a new “declaration” filing mechanism could simplify the review process for some transactions – if CFIUS shows a willingness to accept these filings. Third, CFIUS is no longer a wholly voluntary process, as some transactions will now require filing with CFIUS. Fourth, the timeline for CFIUS review will be lengthened, and CFIUS will be authorized to charge “filing fees” for the first time.
For more information, please see our advisory.