The New CFIUS Regulations: How Will This Actually Work? FAQs We Wish Treasury Would Answer
By Scott M. Flicker, Robert Silvers, Charles A. Patrizia, Randall V. Johnston, Talya Hutchison & Holly Flynn
Gallons of ink will be spilled explaining the new regulations published by the Department of the Treasury to implement the extensive changes to the national security review process undertaken by the Committee on Foreign Investment in the United States (“CFIUS"). The updated rules, which went into effect on February 13, 2020, were mandated by the 2018 Foreign Investment Risk Review Modernization Act (“FIRRMA").
Treasury's task in translating into regulations FIRRMA's many areas of expansion and alteration of the CFIUS process was gargantuan, and its output impressive. Treasury also released two guidance documents when it published the new regulations. These (along with the examples provided in the regulations) are helpful, but they fail to unlock the puzzle that was created by deploying a list of 54 defined terms – many nested within others like Russian dolls – into a largely new regulatory structure intended to cover a wide variety of investment transactions. We offer here a set of “Frequently Asked Questions We Wish Treasury Would Answer" in the hope of clarifying how the new provisions actually work.