Within the omnibus John S. McCain National Defense Authorization Act for Fiscal Year 2019 (2019 NDAA) that the president signed into law on August 13, 2018, is the Foreign Investment Risk Review Modernization Act (FIRRMA), which significantly expands the authority of the US government to review and restrict foreign investments on national security grounds.
Most notably, FIRRMA, which moved through Congress at breakneck speed, empowers the Committee on Foreign Investment in the United States (CFIUS), a US government inter-agency committee, to review a far broader group of “covered” transactions than ever before to determine if they threaten to impair national security and, therefore, should be prohibited or suspended. The new range of transactions includes, among others, certain minority foreign investments in critical technology and critical infrastructure companies and real estate deals near ports and sensitive government installations. The new law also increases the time allowed for these reviews and makes some notifications of foreign investment mandatory (as compared to the voluntary system of years past).
FIRRMA’s expansive new coverage and rules will require new implementing regulations and allow CFIUS to create new exemptions to screen out truly benign investments that will be caught within the law’s expanded scope. Thus, there will be a lengthy rule-making process in which interested parties can participate and provide views. At this writing, the breadth of potential exemptions from these expanded FIRRMA coverages is very much an open question of critical consequence to investors.
Eversheds Sutherland Observation: The bottom line is that FIRRMA is an important development for all parties engaged in foreign investment in the United States – from foreign companies to private equity funds, sovereign wealth funds and real estate investors. These parties need to understand the new rules and take them into account when planning US acquisitions and evaluating their benefits, costs and risks.
FIRRMA has implications for foreign governments and state-owned enterprises as well as a wide range of business sectors, including real estate. Foreign investors in US real estate, as well as developers and operators of US real estate who seek foreign capital and sellers of US real estate marketed to foreign buyers, need to scrutinize the new law’s expanded coverage and consider whether to seek regulatory fixes or exemptions for their specific situations.
I. The rationale for FIRRMA
It is ironic that one of the broadest expansions of US regulatory authority over business transactions in a generation, and the resulting increase in government personnel and funding to manage this stepped up foreign investment review function, was passed in record time by one of the most conservative, anti-regulation Congresses in history. This legislation was already moving at near light speed through Congress with bipartisan support when Secretary of Defense James Mattis accelerated its pace by calling for its inclusion in the 2019 NDAA.
Why the hurry? The genesis of and the rationale for FIRRMA is the serious concern in Congress over, and a desire to more closely scrutinize, a range of Chinese investments not covered by existing law that the law’s sponsors believe pose national security threats. The legislation is a counterpart to a recent determination by the US Trade Representative under Section 301 of the Trade Act of 1974 that China has adopted laws, policies and practices relating to technology transfer, intellectual property, foreign investment and innovation that are unreasonable and discriminatory, and unfairly result in the transfer of technologies and intellectual property from US companies to China.
While the Trump Administration had considered imposing special foreign investment restrictions on China under Section 301, it ultimately decided to rely on the new coverage and disciplines in FIRRMA instead.
II. The broad scope of FIRRMA’s changes beyond Chinese transactions – and when they become effective
Despite the legislation’s focus on China, FIRRMA’s reforms apply across the board to all investors in all countries unless exemptions are created and specifically targets stand-alone real estate transactions under certain circumstances as “covered transactions” subject to CFIUS review.
Since FIRRMA’s provisions have different effective dates, it is useful for businesses, private equity firms and other foreign investors to focus on the changes and their implications in the order in which they will be implemented. While some new FIRRMA provisions are effective immediately, others (including certain provisions with respect to real estate transactions) will become effective on the earlier of either 18 months from the date of enactment or 30 days after the Staff Chair of CFIUS determines that the regulations, organizational structure, personnel and other resources necessary to administer the new provisions are in place.
A. Review timelines have been extended
Eversheds Sutherland Observation: Effective immediately upon enactment, FIRRMA adds to the already lengthy timelines for CFIUS reviews. As a practical matter, potential foreign investors should assume that most cases may now take up to a maximum of 135 days – a 30-day increase over prior law.
This elongated time frame includes:
a) Off the clock time (30 days): the informal time that CFIUS typically takes to review draft joint voluntary notifications that parties submit in order to facilitate a determination that they are “accurate and complete,” as required to initiate the review. This phase has no mandatory time frame, but has in practice expanded to as long as 30 days or more in recent years; FIRRMA, however, attempts to narrow the pre-filing review timeline, requiring CFIUS to either accept a written notice or provide comments within 10 business days after submission of a draft, so long as the parties stipulate that a transaction is a “covered transaction” subject to CFIUS jurisdiction.
b) 45-day review: the initial formal CFIUS review after a case is initiated (which has been increased from 30 to 45 days); and
c) 45-day investigation, plus 15-day extension: the full 45-day investigation, which CFIUS now has been granted authority to extend up to an additional 15 days in “extraordinary circumstances,” as defined by CFIUS in the regulations.
Of course, cases also could include the subsequent 15-day presidential determination phase (which FIRRMA leaves intact) if they last that long. However, in practice, this phase rarely takes place because most cases conclude before this period.
FIRRMA’s extension of the initial CFIUS review period from 30 to 45 days was adopted to allow more cases to be resolved in this first stage because CFIUS staff had observed that numerous cases were resolved soon after the 30-day period ended. In 2017, more than 70% of the cases went to a full 45-day investigation, which is a significant increase from prior years.
Ironically, however, this reform, which was designed to speed up CFIUS determinations, may in practice slow them down. US government departments and agencies that participate in CFIUS, facing competing demands on their time and resources, are likely to take the full time available for the initial review to make their decisions. Thus, the same issues CFIUS member agencies have faced at the 30-day mark are now likely to occur at the 45-day mark, with the resulting shift of these cases to full investigation.
B. Covered transactions have been expanded
At its core, FIRRMA expands the range of “covered” transactions subject to presidential suspension or prohibition under current US law, although this expanded scope will only go into effect on the earlier of 18 months or following the publication of a determination by the chairperson of CFIUS that appropriate measures are in place for effective implementation of the new provisions.
1. Acquisitions of real estate interests at US ports and near military and sensitive installations
FIRRMA fills a gap in CFIUS’s authority by adding the ability to review a foreign person’s purchase, lease or concession with respect to US real estate located at, or that will function as part of, an air or maritime port, or is in close proximity to a US military installation or other US government facilities or properties that are national security sensitive, or could reasonably afford a foreign person the ability to engage in intelligence collections or otherwise expose national security activities at such installations, facilities or properties. Today, CFIUS can only review acquisitions of US businesses and not properties without associated businesses.
Recognizing that not every real estate transaction described above may pose national security risks, FIRRMA excludes single “housing units” and real estate in “urbanized areas” (as both terms are defined by the Census Bureau) from the definition of real estate “covered transactions”. Those exceptions, however, will be subject to CFIUS regulations prepared in consultation with the Secretary of Defense.
CFIUS is also directed to adopt regulations clarifying that the term “covered transaction” includes any transfer of assets arising pursuant to bankruptcy proceedings or other forms of default on debt. Hence, although the acquisition of security interest over US property by a foreign person would not seem to constitute a “covered transaction” under FIRRMA, a subsequent transfer of those assets due to default on debt could be subject to CFIUS review if a foreign person should end up in control of a US business or qualify as an “other investment” (or minority foreign investments in US critical technology and critical infrastructure firms, as described below). It remains to be seen whether CFIUS reviews will also be conducted when a foreign person acquires real estate (without being part of a US business or “other investment”) as a result of either bankruptcy proceedings or foreclosure of a mortgage or other security interest.
Why the expansion? Recent cases involving Chinese acquisitions of businesses adjacent to military facilities (a wind farm near a naval weapons system training facility and a mining company with properties near a naval air station) have raised questions about whether the investments are being made for legitimate business purposes or for espionage. While CFIUS has been able to effectively deal with these transactions because they have involved the acquisition of a business, these cases have demonstrated the need to add authority for CFIUS to address purchases or leases of property near such facilities (i.e., where no US business changes hands). Similarly, since the Dubai Ports case during the George W. Bush Administration, there has been a focus on foreign persons participating in activities in or near US ports.
2. Minority foreign investments in US critical technology and critical infrastructure firms
Today, CFIUS can only review foreign acquisitions of “control” over US businesses. A centerpiece of FIRRMA is its addition of the authority to review “[a]ny other investment” that is not “passive” in nature but in a US business that:
owns, operates, manufactures, supplies or services “critical infrastructure”;
produces, designs, test, manufactures, fabricates or develops “critical technology”; or
maintains or collects sensitive personal data of US citizens that may be exploited in a manner that threatens national security.
For more information on this particular subject, please see our Legal Alert: “The Foreign Investment Risk Review Modernization Act of 2018 – stepping up national security of foreign acquisitions.”
3. The potential for broad “country” exemptions from the new coverage of real estate and minority investments
While FIRRMA’s large-scale expansion of covered transactions plainly was designed with China in mind, it is difficult to identify a compelling national security rationale for applying this new regulatory authority across the board to US friends and allies and all other countries. For one thing, there is no indication that the types of issues the US Trade Representative found with respect to Chinese investment practices apply to other countries. There is no sustained course of conduct by other countries to engage in pernicious investment practices, such as a pattern of acquiring dual use capabilities on a large scale to foster increased military capabilities, the use of opaque or hidden equity investments in start-ups, and the like.
In any event, supporters of FIRRMA have long pointed to a provision in earlier forms of the bill that afforded CFIUS the authority to create, by regulation, a “white list” of designated countries whose transactions would be exempt based on a number of criteria, including the existence of a US mutual defense treaty with that country, that country’s process for reviewing foreign investments on national security grounds, and similar factors.
However, at the end of the legislative process, this explicit, country-based carveout provision was eliminated in favor of a vague provision called “Country Specification,” which allows CFIUS to create exemptions for “certain categories of foreign persons.” Congress only specifies that CFIUS shall take into account how a foreign person “is connected to a foreign country or foreign government, and whether the connection may affect the national security of the United States.”
This ambiguous formulation may have been intended to comply with the World Trade Organization’s (WTO) non-discrimination rules, which would make country-based distinctions more problematic, although presumably in this situation they could be justified under the WTO’s “essential security” exemption. Hence, at this writing, CFIUS’s intentions are not known on this matter – a key question for western investors from NATO and other friendly countries.
On the one hand, the broad expansion of covered transactions creates an incentive for CFIUS to adopt some meaningful exemptions – whether country based or otherwise – to avoid being deluged with declarations and filings and also limit the potentially chilling effect of FIRRMA on US participation in the global flow of emerging and foundational technologies.
On the other hand, the history of CFIUS reflects a strong reluctance to establish broad exemptions of classes of countries or companies from its scope. In order to maintain the flexibility to address future transactions that could arise that might adversely affect national security, a prudent approach makes sense. Since CFIUS operates by consensus, it may be difficult to find full support in CFIUS for broad exemptions.
C. Short-form declarations
In FIRRMA, Congress also created a new type of short-form CFIUS filing, known as a declaration, to be used for several purposes.
Optional declaration. First, in an effort to short-cut the current CFIUS process for some transactions, FIRRMA authorizes CFIUS to establish, by regulation, a process whereby parties in any covered transaction will have the option to submit a short-form declaration (generally not to exceed five pages) with basic information about the transaction instead of a full and detailed written notice. CFIUS then must decide, within 30 days of receipt, whether to: (1) request that the parties file a full notification; (2) initiate a unilateral review of the transaction; or (3) complete the action and clear the transaction.
Participants in foreign investment transactions will have to decide whether to use this abbreviated process and weigh the benefits of an early decision based on a short filing versus simply doing nothing or filing a traditional and more complete notification. If the transaction is so benign that it can be cleared in this manner, the question is whether it makes sense to make a filing in the first place in order to obtain deal certainty. The dilemma is that if the parties guess wrong, and cannot get a clearance in 30 days, then they may face a yet longer process – the initial 30-day declaration stage plus the time and cost of preparing a full joint notification and participating in the full CFIUS review process.
Mandatory declaration for certain foreign government investments. FIRRMA also requires CFIUS to establish, by regulation, a mandatory declaration, subject to exceptions and waivers, to be developed for covered acquisitions of a substantial interest in a US business involved in critical infrastructure or critical technology, or that maintains or collects sensitive personal data in which a foreign government has, directly or indirectly, a substantial interest. The meaning of the term “substantial interest” remains to be seen and, along with waivers and exceptions, will be developed by regulation, but it explicitly will exclude less than a 10% voting interest.
The mandatory declaration provision has the potential to include a wide range of transactions, including investments by sovereign wealth funds. There is, however, a carve out for foreign government investments in investment funds that meet certain specified criteria, including when the fund is managed exclusively by a general partner or the equivalent that is not a foreign person.
D. Filing fees
In a departure from current law and practice, FIRRMA authorizes CFIUS to impose a filing fee, to be specified in the regulations and to the extent appropriated for by Congress, which cannot exceed the lesser of 1% of the value of the transaction, or $300,000, adjusted annually for inflation. While this fee will necessarily take some time to put into place, it will change the CFIUS benefit/cost/risk process for potential foreign buyers. In the future, they will need to take into account the filing cost, in addition to other expenses and risks, in deciding whether to participate in the CFIUS process.
E. Enhanced Enforcement Remedies
FIRRMA provides CFIUS with additional enforcement remedies, such as the authority to (a) suspend a transaction pending CFIUS investigation, (b) refer a transaction to the president pending investigation, (c) adopt and monitor compliance with mitigation agreements, including the power to initiate enforcement actions for breaches, and (d) impose mitigation measures on a party who abandons a proposed transaction. In addition, CFIUS is instructed to establish procedures to identify non-identified and non-declared covered transactions.
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The key question is whether FIRRMA’s expanded authority to evaluate and restrict problematic foreign acquisitions makes sense given the potential chilling effect on foreign direct investment in the United States. It is a subject for debate whether and to what extent FIRRMA’s broad expansion of US authority to restrict foreign investment will, in fact, advance US national security.
What is not debatable, however, is that parties seeking to structure foreign acquisitions of US businesses and real estate transactions potentially subject to CFIUS review need to be well acquainted with the requirements of the laws governing CFIUS and review in advance the benefits, costs, risks, and implications of any potential investment.
Although FIRRMA has adopted mandatory filings for certain types of transactions, the process remains primarily voluntary, providing for an optional short-form “declaration” in certain cases. Determining whether a transaction falls within the definition of a “covered transaction” and whether to file notice of a transaction (or a short-form “declaration”), remain matters of judgment for the parties involved. FIRRMA, however, raises the stakes by expanding the “covered transactions” subject to CFIUS review, increasing the timeline for CFIUS review, allowing the imposition of filing fees and enhancing CFIUS enforcement remedies.
CFIUS is an interagency committee chaired by the Treasury Secretary and comprised of members of the State, Defense, Justice, Commerce, Energy and Homeland Security Departments, which was established in 1975 to monitor foreign direct investment in the United States. The 1988 Exon-Florio Amendment amended the Defense Production Act of 1950 granting the president the authority to block foreign investment in the United States when “the transaction threatens to impair the national security of the United States.”
The statute was further amended by the Foreign Investment and National Security Act of 2007 (FINSA). Although FINSA did not change the fundamental approach under Exon-Florio, it codified existing procedures and broadened the scope of national security reviews to include transactions involving “Critical Infrastructure”. In turn, FIRRMA aims to codify the latest developments of CFIUS practice while also broadening the scope of CFIUS jurisdiction.
CFIUS reviews any “covered transaction”, that is any transaction by or with any foreign person, which could result in control of a US business by a foreign person to assess whether the transaction threatens to impair national security. CFIUS has the authority to approve a proposed transaction, clear the transaction subject to conditions (i.e,. adoption of mitigation measures) or recommend the president to block the transaction or even require divestment of a completed transaction that threatens to impair national security.