Pursuant to the Foreign Investment Risk Review Modernization Act of 2018 (“FIRRMA”), the Committee on Foreign Investment in the United States (“CFIUS”) is authorized to review certain real estate transactions by foreign persons in the United States. The regulations at 31 C.F.R. part 802 (effective on February 13, 2020), implement CFIUS’s authority to review certain “covered real estate transactions,” involving the purchase or the lease by, or a concession to, a foreign person of certain real estate in the United States. The real estate transactions subject to review include transactions meeting certain criteria and that are in, or around, sensitive sites such as specific airports, maritime ports, and military installations. The airports and maritime ports are identified in the regulations and contained on lists published by the U.S. Department of Transportation. Furthermore, the military installations are listed at Appendix A to Part 802.
The CFIUS covered real estate analysis can be very complex, because among other factors, there are several definitions and exceptions that should be considered. To assist with the “covered real estate transactions” analysis, CFIUS recently rolled out the CFIUS Part 802 Geographic Reference Tool. The new tool can be a helpful resource to locate specific real estate in relation to the relevant military installations and ultimately determine whether to submit a voluntary notice or declaration to CFIUS. CFIUS does caution users that the tool “was developed to assist the public and is provided for reference only; it should not be interpreted as guidance or an advisory opinion by CFIUS with respect to any particular transaction.”
Key features of the tool include:
- Allows users to input an address and determine the distance to certain military installations.
- Provides U.S. Census Bureau designated urbanized areas and urban clusters, as well as information pertaining to a publicly available dataset of Department of Defense (“DoD”) properties, which includes, among other sites, the military installations identified in parts 1 to 3 of Appendix A to Part 802.
- Can identify some important features in, and around, a specific geographic location.
Some things users should consider include:
- Before using the tool, make sure you have reviewed Part 802 and understand its scope and coverage, including any applicable exceptions.
- The tool uses a publicly available dataset of the DoD properties, but not all the DoD properties displayed through the tool are relevant to Part 802.
- The identification and boundary information displayed through the tool are intended only for general reference in connection with Part 802, and do not necessarily represent the legal or surveyed land parcel boundaries.
- The tool does not display the: 1) offshore areas identified in part 4 of Appendix A to Part 802; or 2) covered ports (air and maritime ports) relevant to Part 802. Relevant information on the offshore areas and covered ports are available through other U.S. Government websites.
For more information on covered real estate transactions and whether your future real estate investments in the U.S. could trigger CFIUS filings, please do not hesitate to contact us.